I don’t fish, so I personally won’t be affected by recent judicial decisions that limit state conservation officers’ ability to enter fish houses or to stop boats to determine if anglers are obeying limit laws. Nor am I a lawyer, so I do not know the fine points of constitutional law.
But as a citizen of Minnesota, I am concerned that this new interpretation of what constitutes freedom from “unreasonable search and seizure” is bad news for preserving the wildlife of our state. These decisions may be good law, but they are bad economics.
Historically, economists have divided property into two classes – private and public. Private property was that owned by individuals or firms. Public property was government property. In theory, it belonged to all the citizens of a state or nation, but the everyday use of public property was still governed by laws passed by legislative bodies and enforced by civil servants.
Economists also recognized a category known as “free goods” that included things such as the air we breathe. Still, there was little analysis of other types of property rights.
But as concerns about the environment and diminishing natural resources entered economists’ research agenda, they evaluated property and property rights that did not fit neatly into the public/private boxes.
Such arrangements included common property, which is owned and managed by a group of people such as a village or tribe but which is not divided and owned by any individual or strictly by government. Most of the world’s fisheries, much of its grazing land and small-scale irrigation systems are such “common property.”
The village commons, where inhabitants of a village could put their livestock out to pasture, is a good historical example of common property that extended to the New World. Boston Common is an integral part of the political, economic and social history of that city.
Careful economists noted, however, that “common property” was not the same as an “open-access resource” or a “free good.” Open-access resources are ones that anyone can use without having to ask permission from someone else, such as air and sunlight or fisheries outside the territorial limits of countries. Common-property resources do have limited access. No one from another town could put their cattle on a village commons, and the village leaders decide what level of use by village members was acceptable and what was excessive.
Unfortunately, a biologist named Garrett Hardin failed to understand this distinction in the 1960s when he wrote a famous essay titled “The Tragedy of the Commons.” Hardin argued correctly that if no one controls access to a resource, that resource will ultimately be overused and perhaps even destroyed. His error was in labeling such uncontrolled use “common property” rather than “open access,” and this mislabeling has caused confusion ever since.
Hardin did recognize correctly that if nonprivate common-pool resources such as air, public waters, fish and game are to be managed efficiently, then some system of “mutual coercion, mutually agreed upon” is needed.
Such coercion, even if not enshrined in law, exists for most inshore fisheries, irrigation systems, village woodlots and pastures around the world. You do not have to have purely private property to achieve resource conservation or efficient resource use. Nor is it necessary to make all common-pool resources into government-owned public property. But it is necessary to have some source of “mutual coercion.”
In the case of fishing on public waters in most states in the United States, such coercion comes in the form of game and fish laws enforced by game wardens or conservation officers. Until now, enforcement included the practice of entering ice-fishing houses or stopping boats and asking anglers to show their catch. Without authority to continue such actions, history and economic theory tell us that the resource will suffer and the citizens of Minnesota will collectively be worse off.
Maintaining our constitutional protection against unreasonable searches is clearly important. But it is also clear that if I venture onto a public lake to catch fish that belong to all the citizens of Minnesota, it is fundamentally different than if I am in my home reading a book, building a birdhouse or writing seditious tracts against the Ventura administration. What I do with my own private property in my own home does not affect Minnesota society as a whole in the same way as my catching Minnesota fish on a public lake. The law needs to reflect that fundamental difference.
We need “mutual coercion, mutually agreed upon” to protect the game and fish that belong to all Minnesotans and that are very distinct from purely private property such as houses or automobiles.
The Legislature and the attorney general need to find a way to structure such coercion so that it meets constitutional tests without wastefully dissipating the time and other resources of Department of Natural Resources personnel. And judges need to recognize the important public purpose of protecting the resources our society holds in common.
© 2002 Edward Lotterman
Chanarambie Consulting, Inc.