Note: Let my People Go Fishing: Applying the Law of “Givings” to Private Fishing Preserves, Exclusive Fishing Rights, and State-Stocked Rivers
Most fishermen are probably not thinking about the law on a normal day on the water. But perhaps they should if they are one of the anglers paying a fee to fish the private waters of the Douglaston Salmon Run (DSR) or Harmel’s Ranch Resort (“Harmel’s”), private fishing preserves where anglers pay an access fee to enjoy exclusive fishing rights on some of the nation’s most productive waters. While all may be well for the paying angler seeking the idyllic—high populations of fish, low populations of people—a novel legal problem may be lurking in the deep. And it is simply this: by charging anglers for exclusive fishing rights these private landowners receive a pecuniary gain from exploiting a public resource—fish. The private landowner receives a substantial benefit from a public resource because the fish are raised and stocked by the state at the public’s expense. Framing this issue in terms of equity and fairness, this Note applies the property concept of “givings,” the converse of takings, to suggest that this legal problem can be solved if such a landowner reimburses the state for the impermissible use and distribution of government property.
Part I of this Note frames the issue by providing two real-world examples of compensable givings. Part II provides relevant background information and a discussion of the concept of givings and how it may be analyzed. Part III examines and applies the givings framework to the factual scenarios set forth in the Introduction. Finally, this Note concludes by suggesting that, in certain situations, a private fishing preserve that charges the public to fish for a state resource must compensate the state.
Nathaniel H. Amendola: J.D. Candidate, Syracuse University College of Law, 2012; B.A., cum laude, St. Lawrence University, 2005; passionate fly fisherman. I would like to thank the biggest catch of my life, my future wife and current Syracuse Law Review Editor-in-Chief, Amanda Orcutt. I owe a debt of gratitude to my family, Professor Terry Turnipseed, and to my fishing mentors Lynn and Jeff Heyer of Cross Rip Outfitters.