Can Fish Own Water: Envisioning Nonhuman Property in Ecosystems
![handle is hein.journals/jluenvl20 and id is 299 raw text is: CAN FISH OWN WATER?: ENVISIONING
NONHUMAN PROPERTY IN ECOSYSTEMS
LEE P. BRECKENRIDGE*
INTRODUCTION
Ownership of property figures prominently in the design of legal
institutions to manage natural resources, including living resources
in the human environment. When should one person be able to
exclude another from valuable resources? How much authority
should the government have in regulating the uses that people
make of the things that they own? What are the boundaries
between government ownership or trusteeship, and the powers of
private property holders? From forests to fisheries, the targets of
human economic endeavors set the stage for these familiar topics of
debate.'
These central ownership issues are about human power, human
autonomy, and human organization. In the standard economic
version of property, only people own property, or in the extended
formulation, property law addresses the relationships of people to
each other with respect to things, not the relationship of people to
things.2 Other organisms are potential objects of ownership or
trusteeship, but they are not themselves owners,3 even if they are
* Professor of Law, Northeastern University School of Law; J.D. 1976, Harvard Law
School; B.A. 1973, Yale University. This essay is based on a lecture given as part of the
Florida State University Journal of Land Use & Environmental Law 2004 Distinguished
Lecture Series. I am grateful to Professor Donna Christie, Professor David Markell, the staff
of the Journal of Land Use & Environmental Law, and others involved in the event for their
comments and hospitality during my visit to Tallahassee. I am also grateful to Professor Hope
Babcock, Kathryn Dunn, and participants in an environmental law seminar at Georgetown
University Law Center, who offered helpful questions and comments on an earlier version of
this paper.
1. See generally DALE D. GOBLE & ERIC T. FREYFOGLE, WILDLIFE LAw (2002) (providing
a wide-ranging exploration of laws defining and affecting private and public authority over
wildlife) [hereinafter GOBLE & FREYFOGLE].
2. [N]early everyone agrees that the institution of property is not concerned with scarce
resources themselves (things), but rather with the rights of persons with respect to such
resources. Thomas W. Merrill, Property and the Right to Exclude, 77 NEB. L. REV. 730, 731-32
(1998) (footnote omitted). We often think of property as some version of entitlement to things
.... In a more sophisticated version of property, of course, we see property as a way of
defining our relationships with other people .... On this classical view, the institution of
property mediates peoples' conflicting desires about resources, and it does so by allocating
exclusive rights. Carol M. Rose, Property as Storytelling: Perspectives from Game Theory,
Narrative Theory, Feminist Theory, 2 YALE J.L. & HUMAN. 37, 40 (1990).
3. See, e.g., Citizens to End Animal Suffering & Exploitation v. New England Aquarium,
836 F. Supp. 45, 49-50 (1993) (explaining that animals under the relevant state laws are
treated as the property of their owners, rather than entities with their own legal rights.).](ViewImageLocal?handle=hein.journals/jluenvl20&div=14&collection=&method=preview&ext=.png&size=3)
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Can Fish Own Water: Envisioning Nonhuman Property in Ecosystems
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