II. A Growing Voice & Public Trust

This HISTORY is an ongoing personal project that has evolved from a number of volunteer presentations. It is a draft and not for attribution. All comments and corrections welcome.

3. DWINDLING WILDLIFE

 “Who hears the fishes when they cry?” Henry David Thoreau, A Week on the Concord and Merrimack Rivers (1849).

In 1787 John Quincy Adams, who would later serve as the sixth U.S. president, had this observation about the growing concern over game populations, game laws, and what was the proper course of action:

“I went with my gun down to the marshes but had no sport. Game laws are said to be directly opposed to the liberties of the subject; I am well persuaded that they may be carried too far, and that they really are in most parts of Europe. But it is equally certain that where there are none, there is never any game… so that the difference between the country where laws of this kind exist and … where they are unknown must be that in the former very few individuals will enjoy the privilege of hunting and eating venison, and in the latter this privilege will be enjoy’d by nobody.” [13]

Concern of over-harvest by netting, trot lines, and other means was evident by the early 1800s. Statesman and sportsman Daniel Webster believed that hunting and fishing should be conducted according to a set of ethical rules. In 1822, serving in the Massachusetts House of Representatives, Webster introduced a law that “no man in the State shall catch trout in any other manner than with the ordinary hook and line.” This is believed to be one of the first laws in the United States protecting a fishery.

Unhallowed Depredations of the Piratical

George Gibson, writing in 1829 observed, “trout were formerly found in all the limestone springs in [Pennsylvania]. Owing, however, to the villainous practice of netting, they are extinct in some streams, and scarce in others.”[14] A similar concern spurred the organization of the Cincinnati Angling Club in 1830. The Club’s secretary wrote: “It is useless to disguise the fact…that the bass of the Miamies are becoming scarcer every year, diminished no doubt by the unhallowed depredations of the piratical seine-fishers, those pests of the waters, who set at defiance of all rules of the science of our noble art.”[15]

In South Carolina, William Elliot, a planter, politician, and author of Carolina Sports by Land and Water (1846), worried that “there are causes in operation which have destroyed, and are yet destroying, the game to that extent that in another generation, this manly pastime [of hunting] will no longer be within our reach… It is the wanton, the uncalled-for destruction of forests and… game that I reprehend.”[16]

Outgoing president John Quincy Adams (quoted above) faced a ridicule of incoming president Andrew Jackson for Adams’ effort to establish a 30,000-acre reserve in Pensacola Bay, Florida to conserve live oak trees as a future source of timbers for U.S. Navy ships. President Andrew Jackson, viewing the land withdrawal as an infringement on local citizens by the Federal Government, quickly abandoned the reservation. To Jackson’s mind, the local voters had every right to use the trees in any manner they wished.[17]

Making Joyous with the Finny Brood

With many native fish populations in decline, anglers began to advocate for “enhancing” fisheries through fish culture. While popular in Europe, John J. Brown lamented that in America, “few lovers of the beautiful in nature ever think of improving, enlarging, or adorning a natural water spot, and making it joyous and lively with the finny brood…. the propagation, naturalization, or transport of the scaly tribe seems to be with most tenants or owners of land beneath or beyond their notice.”[18]

That all changed around 1831 when one or more species of carp were introduced from France by Henry Robinson of Newburgh, NY who placed them in a pond near the Hudson River. An early and ardent enthusiast of fish culture, Robinson soon planted carp directly into the Hudson and appears to have gifted carp for planting farther afield.[19] Today the common carp is one of the most widely distributed fish species in North America and is considered to be one of the greatest mistakes in the history of American fisheries management.

By the 1880's, the U.S. Fish Commission and others would be routinely stocking common carp, rainbow and brown trout, American shad, and Atlantic and coho salmon. Striped bass were shipped from the Atlantic coast and established in San Francisco Bay by 1883. John Reiger points out that, though overlooked by most scholars, the fish-culture movement can be viewed as the very first environmental crusade to appeal to a significant segment of the American public. Sportsmen, and increasingly non-sportsmen as well, were becoming alarmed over the disappearance of both game and food fishes. Brook trout had all but vanished in many waters while Atlantic salmon and American shad runs had been reduced or eliminated throughout much of their range by overfishing, pollution, and dams. Thoreau’s lament, “who hears the fishes then they cry,” expressed his anguish as Thoreau watched the spawning attempts of salmon and shad blocked by dams on the Merrimack and Concord rivers of Massachusetts.

The Improvidence of Fishermen

The earliest sportsmen-sponsored efforts to establish state-run fish culture programs in Connecticut and Massachusetts failed, largely over due to a lack funding and issues of authority. Vermont commissioned George Perkins Marsh to determine reasons for the decline of the state’s fisheries and the feasibility of establishing a fish culture program to replenish state waters. Marsh’s 1857 report identified a primary cause of fisheries loss as “the improvidence of fishermen in taking them at the spawning season, or in greater numbers at other times than the natural increase can support.” His report went on to identify the direct impacts of sawmills, factories and other industry on water quality and habitat, and noted other “obscure” causes including the rampant clearing of land that caused rapid runoff and choked rivers with silt.[20] Marsh’s report concluded that the legal and social will did not exist for creating a public fish-breeding program. He further noted, “the habits of our people are so adverse to the restraints of game-laws… that any general legislation of this character would probably be found an inadequate safeguard.” He advised that Atlantic salmon and American shad runs in the Connecticut River could be restored only if cooperative action was taken by every state in the river’s watershed, but “the difficulties of a cooperation with other States by concurrent legislation seem, for the present at least, insuperable.”[21]

SIDEBAR- Marsh Report to Vermont Legislature, 1857

4. MANIFEST DESTINY LEAVES ITS MARK

A Country of Vast Designs

Daniel Howe, author of What Hath God Wrought, writes that the human geography at the end of the War of 1812 “included peoples of several races, many languages, and sometimes incompatible aspirations. Innumerable tribes of Native Americans maintained de facto independence of three mainland empires: the United States, Mexico, and British North America.” [22]  While significant Native American cultures had been developed across North America, Udall (2002) notes that, “the minds of most Americans were cluttered with stereotypes of warlike, primitive savages who hindered the civilizing work of those of European descent.”

When James Polk was elected president in 1844, the southwest belonged to Mexico, Texas faced off with Mexico, and British and the American diplomats negotiated over a sizable piece of the Oregon Territory (map). Four years later these disputed lands were all part of the United States. As Robert Merry (2009) recounts in his A Country of Vast Designs, in one term President Polk completed the story of America’s “Manifest Destiny,” extending its territory from ocean-to-ocean by manufacturing a controversial war with Mexico and threatening England. Many in the United States had also hoped to extend the nation’s boundaries to much of northern Mexico and Cuba. The origin of Manifest Destiny’s continental ambition stretches back to 1803 and the purchase of the Louisiana Territory from France. The purchase doubled the size of the newly formed United States though its actual boundaries would remain in dispute for years and would lead directly or indirectly to a war with Mexico.

Whose Destiny?

While President Polk is often seen as the face of Manifest Destiny, the phrase was first coined in 1845 by journalist John O’Sullivan, the fiercely partisan editor of New York’s Democratic Review, calling for the annexation of Texas.

“[It is America’s] manifest destiny to overspread and to possess the whole of the continent which Providence has given us for the development of the great experiment of liberty and federative self-government entrusted to us.”[23]

 The term "manifest destiny" came to symbolize the philosophy that drove 19th century U.S. territorial expansion and a justification for American imperialism. The advocates of Manifest Destiny believed that the United States was destined, by God, to expand its dominion and spread democracy and capitalism, ocean-to-ocean, across the entire North American continent.[24]  Manifest Destiny wrapped the word “empire,” once saddled with negative European connotations, in American clothes and made its pursuit fashionable.[25]

Just as hundreds of Native American tribes and Mexico felt the onslaught of Manifest Destiny, so too did the fish and wildlife. As European settlement moved west, first across the Appalachians, then across the Mississippi, Great Plains, Rocky Mountains and on to the Pacific Ocean, fish and wildlife were no match for the unchecked invasion by ax, plowshare, livestock, and gun.

SIDEBAR- John Gast’s “American Progress”

Westward Ho!

The majority of these westward migrants were engaged in agriculture hoping to build new lives, to turn their hardship and toil into a better life. Udall (2002) observes the West was not conquered by feats of marching armies or by the decisions of far-off political leaders. “In large measure, the West’s future was shaped by courageous men and women who made treks into wilderness and created communities in virgin valleys. And the foundations for lasting settlements were laid by religious groups, not by soldiers.”[26] Moving forward with a sense of righteousness, European migrants viewed the American Frontier as representing self-determination and personal freedoms, and they resisted any form of restraint.

At this time, the general policy of the federal government was to settle all new lands, regardless of previous occupants, be they Spanish, Cherokee, Sioux or Apache. These ‘unsettled’ and ‘unoccupied’ lands were to be meted out with all due haste to homesteaders, miners, and railroads. The result was a wholesale giveaway of public land, timber and minerals amid continuing scandals and corruption. For those wishing to delve further into the history of Western settlement, consider reading Limerick (1987), White (2017), Udall (2002) and Wilkinson (1992, 2005).

America emerged from four devastating years of civil war in 1865 eager to get back to the business of commerce. As agriculture and industry were renewed and expanded so too did the exploitation of fish and wildlife, and increased conflict with the indigenous tribes already in occupation of the lands (see Tribal Nations Chapter). Bison were slaughtered in the thousands for their meat, hides, and finally their skulls and bones. [27] Canvasback ducks were market gunned while striped bass and other coastal fish were greedily netted in growing numbers—and everywhere habitat was plowed under, hydraulically mined, or deforested.

"Sports" men versus "Pot" hunters

In the mid-1800s, advocates for fish and game conservation increasingly documented the loss of fish and game. In response, they began to frame solutions and press for action including hunting seasons and bag limits. But such efforts faced a wall of hostility from the general populace who were opposed to any kind of game laws or other infringements on their individual rights. Citizens maintained a deep distrust of anything that smacked of the tyranny of the English game laws, the privileges of the aristocracy and the continued oppression of the “lesser born.”[28] Adding to this hostility was the near total lack of legal precedents and enforcement capability necessary to make fish and game laws effective.

As the individuals pressed for conservation measures, the need for a greater coordinated voice became apparent. In 1845, John J. Brown, a prominent New York fishing tackle dealer and publisher of The American Angler’s Guide recognized the need for fishermen to find common cause with the hunter, “as there are many that pursue fish and fowl, and … concert of action among them could not fail to be effectual.”[29] Brown and others called for the formation of sporting clubs around the country to be vocal advocates for the creation and enforcement of conservation laws. Examples of early sporting clubs and game associations include the New York Sporting Club (1806), Cincinnati Angling Club (1830), and the New York Sportsmen’s Club (1844). Collectively these organizations began to lobby for game laws to set seasons and control the marketing of game. Larger proposals were advanced such as setting aside “a circle of a hundred miles” around New York’s Adirondack Mountains as “forever kept as wild forest lands.” Today, Adirondack Park (first established in 1885) is the largest publicly protected area in the contiguous United States, encompassing some six million acres. That such lobbying would directly benefit the clubs’ own hunting and fishing interests was expressly the point.

A “sportsman” of the 18th and 19th centuries would be defined as a man (and they were men, not women) who hunts, shoots, and fishes wild animals as a pastime. Many self-styled sportsmen of the time would have added, 'that behaves sportingly in his conduct of the sport. By the start of the 1860s, John Reiger observes, "sportsmen were easily the largest, most influential, and best-organized segment of the nation to be concerned about nonutilitarian environmental issues. They began to think in more expansive terms… concerns increased for fishes and nongame, as well as for game birds and mammals, and the realization started to take hold that the preservation of habitat was more important than saving individual animals."[30]

These “gentlemen sportsmen” had nothing in common with the “market” (commercial) or “pot” (meat) hunters whom they condemned for their wanton waste and avarice. The sportsman extolled the aesthetic of hunting and fishing and the belief that the concepts and practices already developed in Europe, especially Great Britain, needed to be adopted in America if fish and wildlife were to be conserved.[31]

Helping drive the ideas and ethos of the sportsmen conservation were an increasing number of influential national publications including American Sportsman (1871), Forest and Stream (1873), and American Angler (1881). Issue after issue railed against the market gunners and net fishermen while espousing the ethics and responsibilities of sportsmanship. John Reiger provides this example published in the November 1872 issue of American Sportsman by Frank Forester:

“It is not the mere killing of numbers, much less in the mere killing at all, it is not in the value of the things killed, though it is not sportsmanship, but butchery and wanton cruelty to kill animals which are valueless as food] and out of season; it is not in the inevitable certainty of success – for certainty destroys the excitement, which is the soul of sport—but it is in the vigor, science [correct technique],  and manhood displayed—in the difficulties to be overcome, in the pleasurable anxiety for success, and the uncertainty of it, and lastly in the true spirit, the style, the dash, the handsome way of doing what is to be done, and above all, in the unalterable love of fair play, that first thought of the genuine sportsman, that true sportsmanship consists.”[32]

Noblesse Oblige

Looking back to the 19th century from the 21st century, these “sportsmen” seem arrogant and elitist—and with our present-day lens, understandably so. But many of the elites pressed for conservation, as they did for progressive social reforms like women’s suffrage, under the concept of noblesse oblige, the inferred responsibility of privileged people to act with generosity and nobility toward those less privileged.

While Theodore Roosevelt and Gifford Pinchot commonly receive the accolades for today’s natural resources conservation, their efforts were firmly built on a strong, well-established foundation laid down by the sportsmen and women that came before them. From the 1870s on, sportsmen had been working for the restriction of commercial hunting and fishing, the adoption of a national fish culture program that included efforts to control water pollution, the establishment of game preserves, and the passage of new game laws and the better enforcement of old ones.[33]

SIDEBAR- The Boone & Crockett Club, A History

5. MARKET GUNNING and the FEATHER TRADE

In the early 1800s large-scale hunting of waterfowl to supply commercial markets became a widely accepted practice. A man could hunt and earn a living at the same time. In addition to the commercial demand for duck and goose meat, a growing appetite for feathers to adorn fashionable women’s hats created incentives to harvest non-game birds.

Market Gunning

To meet the growing demand, professional “market hunters” in the Chesapeake, Delaware, and Great South bays, along the Atlantic coastland, and elsewhere developed custom-built guns, boats, and other equipment, as well as new stalking and baiting techniques. As waterfowl populations declined, market gunning became increasingly illegal but the “outlaw gunner” continued to innovate to hide his activities from the game warden.

The weapon synonymous with the market gunner was the punt gun—extremely large shotguns, more akin to small pieces of artillery than a sportsman’s shotgun. Too heavy to hold with a recoil too massive to shoulder, the guns were mounted directly on small punts—long, square-ended, flat-hulled boats built for stealth. Commonly home-made and hand-forged, punt guns were highly effective and dangerous. Accidents routinely maimed and even killed their operators.  

A standard market hunting technique was for the gunner to skull his punt stealthily into position, aim, and fire in the general direction of a flock of waterfowl resting on the water. A single shot might kill and cripple 50 birds or more. Once the smoke cleared, the harvest was collected, taken to shore, packed in iced barrels, and shipped by train to various markets. Often the gunners worked together in groups of four or more boats, planning their approach to large rafts of resting ducks and synchronizing their shots so a single volley could harvest up to 500 canvasback and other ducks at a time (Walsh 1971, Goss 2017).

In the United States, this practice rapidly depleted stocks of wild waterfowl and by the 1860s most states had prohibited the practice. Effective interstate enforcement however required federal action. The Lacey Act of 1900, the country’s first federal wildlife protection statute, banned the transport of illegally harvested wild game across state lines, and the practice of market hunting was outlawed by a series of migratory bird acts in 1918.

Feathers for Fashion

“Before the Hermès bag or Louboutin heel, the ultimate status indicator was a dead bird,” writes Kirk Wallace Johnson in The Feather Thief. “The more exotic, the more [rare], and the more expensive, the more status conferred upon its owner.” Johnson notes the irony that the brightly colored feathers of male birds, evolved to attract females of their species, were now used by women to attract men and signal their “perch in society.”[34]

Marie Antoinette in the French court of Louis XVI in 1775 is credited with making the bird feather a mark of high fashion. Fervor for feathers in hats and headdresses spread across Europe and the United States. By 1850, the killing and sale of birds for the millinery trade was big business resulting in the deaths of millions of birds from around the globe—birds of paradise from Indonesia, quetzals from Guatemala, hummingbirds from Cuba, and Snowy Egrets from Florida. Snowy Egrets were prime targets, especially birds in breeding plumage. Hunters killed adult birds in their rookeries, leaving the chicks behind to die of exposure and starvation. Herons and other wading birds, terns, gulls, and dozens of other bird species were targeted. Songbirds were also popular with the entire bird commonly stuffed and displayed on the hats of Victorian women. The more exotic and rarer birds marked women of high status while more common birds were proudly displayed by women in the growing middle classes. By 1900, more than 83,000 workers were employed in New York’s millinery trade fed by an estimated 200 million North American birds killed each year.

Tea Parties to the Rescue

In 1896, Boston socialites Harriet Hemenway and cousin, Minna Hall, used tea to build a movement that would ultimately help end the feather trade. Hemenway and Hall hosted tea parties and used the Blue Book, a directory of Boston’s elite, to persuade their influential friends to stop wearing feathered hats. Some women did not want to participate, but many women agreed. They eventually organized a group of 900 wealthy, high-profile women in Boston who agreed to boycott and helped establish the Massachusetts Audubon Society which organized fundraisers, conducted lecture tours, and audited the millinery industry. By 1897, there were 111 local Audubon chapters in Massachusetts (today’s Mass Audubon), 105 of them founded and led by women. The women’s political power and reach became strong enough to push Massachusetts to pass a law banning the trade in wild bird feathers. Other states followed Massachusetts’ lead, and finally in 1913, the plume trade was ended through a federal law known as the Weeks-McLean Bill. Thanks to a few far-sighted women, birds were spared the demands of ladies’ fashion.[35]

SIDEBAR- Birds of a Feather Died Together: The Fight to Protect Florida’s Birds

6. PUBLIC TRUST & STATE OWNERSHIP OF WILDLIFE

Who Owns the Oysters?

The first case concerning the relationship of government, citizen, and wildlife to come before the U.S. Supreme Court was Martin v. Waddell in 1842.[36] At issue was the right of a riparian landowner to exclude all others from harvesting oysters from 100 acres of mudflats in New Jersey's Raritan Bay. The plaintiff claimed to own both the riparian and submerged lands, tracing his title to a grant in 1664 from King Charles II to the Duke of York that purported to convey "all the lands, islands, soils, rivers, harbours, mines, minerals, quarries, woods, marshes, waters, lakes, fishings, hawkings, huntings and fowlings" within the land grant.

Considering how the title of such lands passed from king to duke to plaintiff, Chief Justice Roger Taney found that ''dominion and property in navigable waters, and in the lands under them [were] held by the King as a public trust" and that the King, by virtue of his public trust responsibilities, lacked the power to abridge "the public common of piscary." The court further found, “When the people of New Jersey took possession of the reins of government and took into their own hands the powers of sovereignty, the prerogatives and regalities which before belonged either to the crown or the parliament, became immediately and rightfully vested in the state.” The high court’s opinion assigned the states as successors to the crown and English Parliament and laid the foundation for later development of the doctrine of state ownership of wildlife.[37]

In 1842, such a determination of state primacy did not cause a great deal of concern. But that would change in the 20th century when hundreds of treaties, international agreements, federal statutes, executive orders, and federal regulations were enacted providing a complex array of interrelated, overlapping, and sometimes conflicting requirements.

Shipping Woodcock across State Lines

In 1896, the U.S. Supreme Court once more ruled on a case concerning “ownership” of wildlife. Geer v. Connecticut dealt with the transportation of game birds over state lines. Edgar Geer had been cited for unlawfully receiving and having in his possession “certain woodcock, ruffled [sic] grouse or quail killed within the state” with the wrongful and unlawful intention to convey the same beyond the limits of the state.[38]

In Geer the court’s majority opinion concluded that wildlife is held in trust for the people and no person or group can claim any special or prior rights to the use of wildlife (be they hunters, birdwatchers, or friend of animals). The plaintiff argued that Connecticut’s game statues improperly interfered with Congress’ power to regulate interstate commerce. The court disagreed and held that states, acting in their public trust capacity, had the right “to control and regulate the common property in game” including the establishment of laws regulating the taking of game. And further, those conditions remained with the animal even after being harvested. The court, however, qualified that such state ownership continued to exist only “in so far as its exercise may be not incompatible with, or restrained by, the rights conveyed to the federal government by the Constitution.”[39]

In 1776, a revolution toppled a distant king and sovereign power transitioned to the individual states for their exercise. Martin v. Waddell and Geer v. Connecticut established a strong state public trust for the management and regulation of fish and wildlife. But interstate and international concerns over the management of migratory birds, pollution control, and other issues would lead to increased federal legislation and regulation in the 20th century.

For example, some 20 years later, the State of Missouri challenged the enforcement of the Migratory Bird Treaty Act of 1918 (MBTA), arguing that the regulation of game was not expressly delegated to the federal government by the U.S. Constitution, and therefore remained the states’ purview under the Tenth Amendment. The Supreme Court found otherwise, ruling in Missouri v. Holland (252 U.S. 412) that the MBTA was an appropriate exercise of the federal government's treaty power, with the supremacy clause of the Constitution elevating treaties above state law. In the 1900s, some 120 treaties, international agreements, federal statutes, executive orders, and federal regulations were enacted that created a complex array of interrelated, overlapping, and sometimes conflicting requirements (Bean and Rowland 1997).

SIDEBAR- A Look Back- and Ahead, History of Montana Fish and Wildlife Law Enforcement

_______________________________

ENDNOTES

[13] John Reiger, American Sportsmen and the Origins of Conservation (Oregon State University Press, 2001), 5.

[14] John Reiger, American Sportsmen and the Origins of Conservation, 17.

[15] Miami River system, southwest Ohio, in John Reiger, American Sportsmen and the Origins of Conservation, 18.

[16] John Reiger, American Sportsmen and the Origins of Conservation, 29

[17] John Reiger, American Sportsmen and the Origins of Conservation, 5-6.

[18] John Reiger, American Sportsmen and the Origins of Conservation, 21.

[19] U.S. Fish and Wildlife Service, Common Carp Ecological Risk Screening Summary (https://www.fws.gov/fisheries/ans/erss/highrisk/ERSS-Cyprinus-carpio_Final.pdf)

[20] John Reiger, American Sportsmen and the Origins of Conservation, 24.

[21] John Reiger, American Sportsmen and the Origins of Conservation, 27

[22] Daniel Howe, What Hath God Wrought (Oxford University Press, New York, 2007), 19.

[23] Stewart Udall, The Forgotten Founders, Rethinking the History of the Old West (Island Press, Washington, DC, 2002), 111.

[24] Daniel Howe, What Hath God Wrought, 702-703.

[25] Stewart Udall, The Forgotten Founders, 114.

[26] Stewart Udall, The Forgotten Founders, 113.

[27] Between 1871-1872, an estimated 8.5 million bison were shot. By 1886, there were only some 540 bison remaining, mostly in the Yellowstone region—for more, recommend Michael Punke’s Last Stand. Flocks of Passenger Pigeon filled the skies for days during their migrations up and down the Appalachians, numbered over 2 billion. One record in 1806 speaks to a flock one mile wide, 40 miles long. The last passenger pigeon, Martha, died 1914 in the Cincinnati Zoo.

[28] John Reiger, American Sportsmen and the Origins of Conservation, 31.

[29] John Reiger, American Sportsmen and the Origins of Conservation, 20.

[30] John Reiger, American Sportsmen and the Origins of Conservation, 43.

[31] John Reiger, American Sportsmen and the Origins of Conservation, 6.

[32] John Reiger, American Sportsmen and the Origins of Conservation, 48.

[33] John Reiger, American Sportsmen and the Origins of Conservation, 67.

[34] Kirk Wallace Johnson, Feather Thief, 43.

[35] U.S. Fish and Wildlife Service, “Giving Credit Where Credit is Due: Harriet Hemenway,”  https://www.fws.gov/birds/news/200306harriethemenway.php/

[36] Martin v. Waddell, 41 U.S. 367 (1842).

[37] For discussion on Martin v. Waddell, Bean and Rowland, Evolution of National Wildlife Law, 3rd Ed., 10-11.

[38]  Geer v. Connecticut, 161 U.S. 536 (1896).

[39] Bean and Rowland, Evolution of National Wildlife Law, 3rd Ed., 14.