Ownership of Raptors:
What Does it Mean to Falconers?
Authors: Bill Horn, David Lampp
Birch, Horton, Bittner & Cherot
On October 14, 2005, the U.S. Fish and Wildlife Service (“FWS”) took the unprecedented step of proposing regulatory language asserting that raptors, whether taken from the wild or raised in captivity, could not be private property. See 70 Fed. Reg. 60052 et seq. (Oct. 14, 2005). FWS’s proposed raptor propagation regulations stated that “Wild-caught and captive-bred raptors of species protected under the [Migratory Bird Treaty Act, or “MBTA”] are always under the stewardship of the U.S. Fish and Wildlife Service. They are not private property.” WRTC objected strongly to this language and is optimistic that the final propagation regulations will not include this offensive claim.
The removal of the “ownership” provision from the FWS’s proposed rule, however, does not mean that the FWS clearly recognizes falconers’ property rights in their raptors. Rather, FWS recognized that an overt claim of ownership was inconsistent with the law and politically controversial, and has decided instead to stay silent on the matter. The falconry community should continue to assert falconers’ ownership of their birds, but do so in such a way that recognizes FWS’s authority, grounded in well established legal principles, to set reasonable limitations on the exercise of property rights.
The purpose of this article is to briefly summarize the historical pedigree of animals as property, and to identify what “property” status for legally taken raptors means, as a practical matter, for falconers.
I. Theories of Property and the “Bundle of Rights” Model
“Property” is a difficult legal concept to define. A noted 19th Century English legal authority defined ownership of property as the “sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” This definition is widely regarded as too absolute to be accurate in the modern world, where ownership is inevitably subject to limitations on what one can or cannot do with one’s property. Limitations can arise from governmental authority and from other private ownership interests (e.g., as a homeowner one has rights to limit activities of an adjacent homeowner). A more modern definition describes ownership of property as a “bundle of rights” that is defined by the law as it exists. Accordingly, the assertion of “ownership” is not, and never will be, a “silver bullet” to defeat any otherwise legitimate limitation imposed by the sovereign or one’s neighbors on the exercise of property rights. Rather, the property owner must, while recognizing the legitimacy of some degree of governmental interference with property, remain diligent to detect and combat specific limitations that go too far.
The “bundle of rights” definition, while more accurate than the absolute assertion of “sole and despotic dominion,” has problems as well. First and foremost, the “bundle of rights” definition is descriptive rather than prescriptive – i.e., it describes the current state of affairs by acknowledging that property rights are as the law recognizes or permits, but does not tell us or prescribe what rights are part of ownership. Accordingly, it is a bit of a guessing game to forecast the effects of falconers’ ownership of their birds on potential future FWS rulemakings or other attempts to restrict falconers’ rights vis-a-vis their birds. Nonetheless, certain aspects of property remain almost universal and should be safeguarded as core principles that may, in the future, be needed to prevent excessive government intrusion. Some of these are discussed below in Part III.
Since property is a “bundle of rights,” the falconry community needs to be alert to attempts to take away rights from that bundle. Incremental efforts to take away one right at a time are the most likely line of attack. It is important to be watchful and maintain a robust claim of ownership to avoid erosion of falconers’ property interests.
II. Legal and Historical Background Regarding Animals as Property
In the ancient Roman legal tradition, animals in a state of nature were considered “res nullis” or “unowned property.” Free wildlife was considered a communal resource, and individual animals were considered to be owned by nobody. Capture of wild animals made them the property of the capturer. The Roman Emperor Justinian summarized the Roman rule as follows:
[W]ild animals, birds and fish, i.e., all animals born on land or in the sea or air, as soon as they are caught by anyone, forthwith fall into his ownership by the law of nations; for what previously belonged to no one is, by natural reason, awarded to its captor.
A citizen’s right to capture wildlife, however, was qualified by the state’s sovereign power to control and regulate the harvest of wild animals, along with other restrictions including exclusion of hunters by landowners.
In the feudal English legal tradition, the King asserted ownership of all wildlife within the kingdom, and the related right to control its taking. He granted “hunting franchises” to the nobility, which gave various levels of rights to hunt the King’s game. Hunting franchises did not bestow an absolute property right to captured wildlife and game, but rather a right to harvest certain types of game in designated areas. For a long time the rights of hunting franchisees were superior even to the right of the landholders to exclude hunters from their land.
Notably, the English King not only asserted ownership of all wildlife in the kingdom, but the land the wildlife lived on as well. All landowners’ proprietary rights were granted by, and could be changed or taken away by, the King. The King exercised his considerable powers in this area by establishing a land-classification system with different levels of access, and by limiting hunting to royal grantees.
As time passed, the landed gentry succeeded in shifting the right to take wildlife from the royal grantees to the landowners. This included expansion of trespass law and, significantly, the doctrine of “ratione soli” whereby a landowner was considered to have constructive possession of all animals on his property. Reaction to this doctrine would serve as one of the major influences on development of American notions of “ownership” of animals.
III. American Legal Tradition of Animals as Property
The American colonies reacted against the English tradition by embracing the notion of open capture, whereby wild animals became the property of any person who reduced them to possession, regardless of class status or land ownership. This new American tradition continued through the American Revolution and became the law of the new nation:
[W]here a subject, animate or inanimate, which otherwise could not be brought under the control or use of man, is reduced to such control or use by individual labor, a right of property in it is acquired by such labor. The wild bird in the air belongs to no one, but when the fowler brings it to the earth and takes it into his possession it is his property. He has reduced it to his control by his own labor, and the law of nature and the law of society recognize his exclusive right to it. . . . So the trapper on the plains and the hunter in the north have a property in the furs they have gathered, though the animals from which they were taken roamed at large and belonged to no one.
Early American law regarding capture was undoubtedly based in part on the Roman and English traditions, but, in typical American fashion, rejected the notion that rights to take wild animals were to be doled out at the whim of the sovereign. American law, from the beginning, allowed for more egalitarian access to game. As the U.S. Supreme Court recognized, wild animals in the state of nature were traditionally considered to be “owned” by the State and held in trust for the people. Wildlife could be reduced to direct ownership through capture, killing, or other possession. The Court summarized the American legal tradition regarding ownership of wild animals:
[A]ll the animals which can be taken upon the earth, in the sea, or in the air, – that is to say, wild animals, – belong to those who take them, . . . because that which belong [sic] to nobody is acquired by the natural law by the person who first possesses it.
The Supreme Court later clarified that the government’s “ownership” of wild animals is a “fiction,” further eroding any influence on American hunting of the English tradition of access to game only for the wealthy, landed, or otherwise favored classes:
A State does not stand in the same position as the owner of a private game preserve and it is pure fantasy to talk of ‘owning’ wild fish, birds, or animals. Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture. . . . The ‘ownership’ language of cases such as those cited by appellant must be understood as no more than a 19th-century legal fiction expressing the importance to its people that a State [or the federal government] have power to preserve and regulate the exploitation of an important resource.
In other words, according to the Hughes court, the government does not really “own” wild animals in any traditional sense of ownership, but the “fiction” of government ownership is merely a way of recognizing the government’s authority to regulate the taking of wild animals. The American tradition recognizes that ownership of wildlife in a state of nature is vested in the citizens, and the government, at most, holds the wildlife in trust for the benefit of the citizen-owners. When a citizen legally takes a wild animal and reduces it to possession the citizen “owns” that animal directly; the government no longer acts as a quasi-trustee.
Early regulation of wildlife taking was a response to the depletion of game populations due to market hunting, which emerged in the 1800’s as the states became more populated. The depletion of wildlife species resulting from the unrestricted market hunting led several states to enact, and state courts to uphold, legislation designed to limit wildlife harvest. Many of these laws, and the court decisions upholding them, were based on the public trust idea – i.e., that the states own wildlife in trust for all their citizens and states have the authority to manage wildlife and impose restrictions on taking. These early regulations, imposed by state governments rather than the federal government, imposed hunting seasons and bag limits in an effort to slow the consumption of wildlife and preserve sustainable populations. States, and later the federal government, have maintained this authority to limit taking up until the present day, and have promulgated more and more complex limitations as the years have passed.
The general state of the law with regard to animals taken from the wild is that “Wild animals reduced from a wild state in compliance with the applicable law become the property of the individual.” Courts have routinely upheld governmental regulations limiting individuals’ ability to take animals from the wild, but never held that hunters did not “own” the wildlife they capture legally. To do so would run contrary to a long legal tradition recognizing ownership by a person who legally reduces a wild animal to possession.
Property in domestic animals is even more well-established. It is indisputable that domestic animals (including dogs, cats, and other “pets”) are considered the personal property of their masters or owners. Raptors, even in the possession of a falconer, have some aspects of wild animals and some aspects of domestic animals. While they retain much more of a “wild” nature than traditional pets, they are nonetheless kept, fed, maintained, and cared for by humans in a controlled environment. Regardless of raptors’ technical status as “wild” or “domestic,” however, it is clear that, according to our historical legal tradition and the modern state of the law, raptors, whether taken from the wild or raised in captivity, should be considered the “property” of the falconer who takes or otherwise lawfully acquires them.
Despite the sometimes broad latitude given property owners to obtain, use, and dispose of property, including animals, it is important to recognize that that ownership is not unfettered and that it does not defeat governmental regulation of procurement, use, or disposition of property. Even when animals are taken and become private property, the states and federal government routinely restrict usage and disposition of that property, and such restrictions have long been upheld in the courts. These principles of government regulation were the basis of bans on market hunting and underlie modern laws classifying various fish and wildlife as “game” species which cannot be sold after capture or harvest. Furthermore, the Animal Welfare Act extensively regulates the humane treatment of animals in research, exhibition, commerce, and by dealers even though the animals governed by the statute are “owned.”  In addition, state laws regulate the handling, mistreatment, and sheltering of animals.
IV. Advantages of Ownership
WRTC has been active in promoting the expansion of falconry and promotes a non-intrusive and non-coercive relationship between the regulated falconry community and governmental regulators at the federal and state levels. Part of this includes limiting the government’s regulation of the practice of falconry to only that which is necessary to ensure sustainable and robust populations of birds and to prevent unnecessary harm to humans or raptors. Falconers’ ownership of their birds – even though that ownership is not absolute in the sense of Blackstone’s definition – is important because it is a protection against governmental overreaching and intrusive law enforcement tactics.
Protection against searches and seizures. The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This provision protects against two types of governmental intrusions – searches and seizures – and protects privacy and property.
The U.S. Supreme Court has held that the Fourth Amendment generally requires law enforcement officers to obtain a warrant based on probable cause before searching private premises. There are, however, a number of exceptions to the warrant requirement. The FWS argued that falconers who obtain permits consent to administrative searches of their premises in order to determine compliance with permit conditions and regulatory requirements. There is ample support in the case law for the FWS’s ability to conduct these “administrative searches” without a warrant.
Even administrative searches, however, have limitations. For example, an administrative search, while it need not be based on probable cause, must still be “reasonable” as determined by balancing the individual’s privacy interest against the government’s regulatory interests. While falconers’ “ownership” of their raptors will seldom, if ever, defeat such an administrative search, the heightened privacy interest in private property ensures that the government must have a significant regulatory interest before conducting a search. Furthermore, the falconry community stands in a much stronger position to object to attempts to expand the FWS’s inspection authority if it argues from a position of ownership of raptors, rather than a position of conceding the government’s ownership.
The Fourth Amendment’s limitations on the FWS’s seizure of birds relates directly to the issue of ownership. The Fourth Amendment’s protections against government seizure apply, at their base, to property. Falconers’ objections to FWS’s seizure of their raptors depends entirely on their status as property. Accordingly, to benefit from the protections of the Fourth Amendment, it is important for falconers to maintain that their raptors are their private property.
Protection against deprivation of property. Ownership of raptors has potential implications for falconers’ ability to protect their use of raptors, against both the government and other private parties. The Fourth and Fifth Amendments address deprivation of property by the government, and private law regarding civil damages and other civil remedies address deprivation of property by private parties.
The Fifth Amendment provides, in relevant part, “No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The U.S. Supreme Court has recognized that this language protects private citizens from being arbitrarily deprived of their property by the government for any reason other than a “public use.” Furthermore, even when a public use is at issue, the government must provide due process of law, including provision for “just compensation” for the taken property. What constitutes “public use” and “due process” in any given case is a complex inquiry highly dependent on the particular situation.
The plain language of the Fifth Amendment, and U.S. Supreme Court opinions interpreting the Amendment, are clear that it applies to property only. At its most basic, the Fifth Amendment is designed to protect citizens’ interests in their private property from government intrusion or appropriation. For the Fifth Amendment to protect falconers’ interests in their raptors, raptors must be falconers’ property, not merely animals “on loan” from the government, as the FWS attempted to assert three years ago.
The Fifth Amendment applies not only where the government has taken possession of private property, but also where regulation is so burdensome that it severely impacts a property owner’s rights with regard to that property. As the U.S. Supreme Court recognized in 1922, “if regulation goes too far it will be recognized as a taking.”
The prohibitions on taking without due process and just compensation serve as a further check on overreaching by regulators. Regulations that are sufficiently pervasive and burdensome may be subject to a claim that they are, in fact, a taking of private property. The remedy in such circumstances is compensation to the property owner for the “taking” or removal of the regulations. While regulatory takings cases typically involve restrictions on land use against the landowner, the Fifth Amendment is not so specific and applies more broadly than just to ownership interests in land. Falconers’ ownership of their raptors serves as another check on government overreaching by allowing them a basis to potentially invoke the Fifth Amendment against overreaching regulations.
In addition to protecting against governmental taking, ownership of raptors may confer on falconers the legal standing to seek damages or other civil remedies against private parties who deprive them of their birds. A falconer whose raptor is killed or otherwise taken, intentionally or otherwise, by a private party may be able to seek monetary damages against that party, or a court order against that party to return the raptor, or, in some circumstances, both. However, such civil remedies may not be available if the falconer does not “own” the raptor at issue. If the government is allowed to assert its ownership of falconers’ raptors, a court may find that it is the government who is entitled to pursue damages for loss of a raptor, not the falconer. Given the competing demands on government resources and political agendas that often drive such decisions, the government may be unwilling to pursue any legal action in such circumstances, and it is doubtful that the falconer would be able to seek any civil remedies even if the government were to choose not to do so.
The American legal tradition has recognized animals as property when they have been reduced to possession since Colonial times, and that basic principle has roots in legal traditions dating back centuries. Over the years, government regulation of taking and possession of animals has expanded, and is, in theory, relatively non-controversial from a legal perspective. However, regulation does not mean that private property ceases to be private property, i.e., that falconers’ birds are no longer falconers’ property. Indeed, it is important for falconers to safeguard their property rights in their raptors so that they can use the protections our Constitution and legal tradition give to property as a check against government regulation that goes too far and becomes too intrusive. Therefore the falconry community must safeguard its property interests in raptors, while simultaneously recognizing the government’s ability to impose reasonable limitations on acquisition and use of their birds and being vigilant to detect and combat regulatory measures that threaten core property principles.
 William Blackstone, 2 Commentaries on the Laws of England, *2 (Chicago 1979).
 See generally James E. Penner, The “Bundle of Rights” Picture of Property, 43 U.C.L.A. L. Rev. 711 et seq. (1996).
 See Penner, supra note 2, at 714.
 See Symposium, The Pioneer Spirit and the Public Trust: The American Rule of Capture and State Ownership of Wildlife, 35 Envtl. L. 673, 677-78 (2005). Other items of “unowned property” that could be reduced to ownership through possession included unoccupied lands, precious stones, and the property of an enemy captured in battle. Id.
 J. Inst. 2.1.12 (quoted in Pioneer Spirit, note 4 supra, at n.25 and accompanying text).
 See Pioneer Spirit, note 4 supra, at 678-79. In addition to the state’s power to control taking, would-be “takers” of wildlife also had to contend with landowners who had the right to exclude hunters and other capturers of wildlife from their land.
 Pioneer Spirit, note 4 supra, at 682.
 Pioneer Spirit, note 4 supra, at 679-80.
 Spring Valley Waterworks v. Schottler, 110 U.S. 347, 374 (1884).
 See Geer v. Connecticut, 161 U.S. 519, 529 (1896), overruled, Hughes v. Oklahoma, 441 U.S. 322, 334-35 (1979); Key v. State, 384 S.W.2d 22, 24 (Tenn. 1964); State v. Heffernan, 67 P.2d 240, 245 (NM 1937).
 Geer, 161 U.S. at 523; see also Hughes, 441 U.S. at 334-35; Pierson v. Post, 3 Cai. R. 175 (NY 1805).
 Hughes, 441 U.S. at 334-35 (quotations omitted) (emphasis added) (citing Geer, 161 U.S. at 539-540).
 See Pioneer Spirit, note 4 supra, at 685-86. This “free take” ideology was consistent with the American philosophy that despite the “fiction” of government ownership over wildlife, it is really the people, not the government, who “own” wildlife and have a right to use that resource, regardless of their socioeconomic status. The expansive “free take” established in America served multiple purposes, including providing a source of food and revenue for residents and promoting utilitarian ideals by encouraging the best and most productive use of the available wildlife resources.
 Market hunters hunted large amounts of game and sold the meat, furs, etc. in the towns where other specialized professions no longer had the time to hunt for subsistence. Pioneer Spirit, note 4 supra, at 690..
 The “public trust doctrine” initially appeared in court opinions regarding title to navigable waters and the lands submerged beneath them. See, e.g., Arnold v. Mundy, 6 N.J.L. 1 (N.J. 1821); Martin v. Waddell, 41 U.S. 367 (1842). Courts later extended those same principles to uphold state regulation of hunting.
 Pioneer Spirit, note 4 supra, at 696.
 3B C.J.S. Animals § 10 (2003).
 See, e.g., Magner v. Illinois, 97 Ill. 320 (Ill. 1881); Phelps v. Racey, 60 N.Y. 10 (N.Y. 1875); State v. Norton, 45 Vt. 258 (VT 1873). These early American wildlife regulations, and the court decisions upholding them, have certain characteristics that are particularly significant in the modern era of wildlife regulation. First, these regulations were aimed at slowing the depletion of wildlife populations so that game would remain accessible to future hunters. These regulations were NOT motivated by any desire to preserve wildlife for its own sake or because hunting or other taking of wildlife was deemed wrong or immoral. Indeed, this country, early on, put a high importance on hunting and considered it a benefit to society. Second, it was the STATE legislatures, not Congress or any federal authority, enacting these regulations and being upheld by the courts. Indeed, it would have been extremely controversial for the federal Congress to regulate hunting this way, and would have faced a much more difficult road through the court systems of the day.
 See 3B C.J.S. Animals § 4 (2003) (“’Property’ in domestic pets is of a highly qualified nature, the possession of which may be subject to limitation and control in the overriding public interest”).
 See supra; 3B C.J.S. Animals §§ 4, 8 (“Wild animals reduced from a wild state in compliance with the applicable law become the property of the individual”), 10 (2003); Brooke J. Bearup, Pets: Property and the Paradigm of Protection, 3 J. Animal L. 173, 177 (2006) (“Domesticated animals receive the same designation under United States law as personal property”). Furthermore, the offspring of captive raptors belong to the falconer who owns the mother bird. See 3B C.J.S. Animals § 6 (2003) (“In the absence of an agreement to the contrary, the offspring or increase of tame or domestic animals belongs to the owner of the dam or mother”).
 See, e.g., Andrus v. Allard, 444 U.S. 51 (1979) (holding that the Migratory Bird Treaty Act and implementing regulations’ restrictions on commercial disposition of covered species does not impermissibly burden private property rights in violation of the Fifth Amendment’s Due Process clause); Everard’s Breweries v. Day, 265 U.S. 545 (1925) (holding that prohibition of sale of alcoholic beverages did not impermissibly burden property rights of those who had stocks on hand when prohibition went into effect); Jacob Ruppert, Inc. v. Caffey, 251 U.S. 264 (1920) (same); Mugler v. Kansas, 123 U.S. 623 (1887).
 See, e.g, U.S. v. St. Pierre, 578 F.Supp. 1424 (D.S.D. 1983) (purpose of the Migratory Bird Treaty Act was to provide a more severe penalty against market hunters who commercialize the destruction of migratory birds as well as those who kill such birds and sell the bird parts).
 Animal Welfare Act, 7 U.S.C. §§ 2131-2159 (2006); 9 C.F.R. pts. 1-3 (2008).
 See, e.g., Mo. Rev. Stat. §§ 268, 273 (2006); Wis Stat. § 951 (2006).
 See note 1supra and accompanying text.
 See United States v. Jacobsen, 466 U.S. 109, 113 (1984).
 See Terry v. Ohio, 392 U.S. 1, 20 (1968) (“[T]he police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure”). A long line of subsequent cases has reinforced the warrant requirement.
 See, e.g., New Jersey v. T.L.O., 469 U.S. 325 (1985) (allowing warrantless search of public school student’s purse); O’Connor v. Ortega, 480 U.S. 709 (1987) (allowing warrantless search by public employer of employee’s offices, desks, and file cabinets); Griffin v. Wisconsin, 483 U.S. 868 (1987) (allowing warrantless search of probationer’s home); Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989) (upholding regulation requiring railroads to perform blood, urine, and breath tests for certain railroad employees to detect drug use); National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) (upholding U.S. Customs Service’s warrantless drug screening program for certain employees); Vernonia School Dist. v. Acton, 515 U.S. 646 (1995) (upholding school district’s policy of random urine testing of students who participated in interscholastic sports).
 Some more recent cases have held that the warrantless administrative search must be justified by a “compelling government interest,” and courts have shown a willingness to be flexible in determining what constitutes such an interest in any particular case. See Vernonia, supra note 24.
 See Soldal v. Cook County, 506 U.S. 56, 62-63 (1992).
 Backus v. Fort Street Union Depot Co., 169 U.S. 557, 573-75 (1898) (upholding trial court’s jury instruction requiring “just compensation” for taking of land pursuant to eminent domain power). See also Chicago B. & Q. R.R. v. City of Chicago, 166 U.S. 226, 233-37 (1897) (applying just compensation requirement of Due Process to taking by state government).
 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).
 See, e.g., United States v. Welch, 217 U.S. 333 (1910) (applying Fifth Amendment takings analysis to easements); United States v. General Motors, 323 U.S. 373 (1945) (leaseholds); Lynch v. United States, 292 U.S. 571 (1934) (contract rights); Omnia Commercial Corp. v. United States, 261 U.S. 502 (1923) (same); James v. Campbell, 104 U.S. 356 (1882) (patent rights); Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) (trade secrets).
 See Bearup, supra note 20, at 180 (“Because domesticated animals are currently deemed personal property under law, in order to confiscate an individual’s property (the harmed pet) all aspects of constitutional procedural due process must first be met”).