Green wood in the bundle of sticks: Fitting environmental ethics and ecology into real property law

57 Hawaii v. Standard Oil Co. of Cal., 405 U.S. 251, 257 (1972) (citations and footnotes omitted). The nature of the parens patri,ae suit has been greatly expanded in the United States beyond that which existed in England. This expansion was first evidenced in Louisiana v. Texas, 176 U.S. 1 (1900), a case in which the State of Louisiana brought suit to enjoin officials of the State of Texas from so administering the Texas quarantine regulations as to prevent Louisiana merchants from sending goods into Texas. This Court recognized that Louisiana was attempting to sue, not because of any particular injury to a business of the State, but as parens patriae for all her citizens. While the Court found that parens patriae could not properly be invoked in that case, the propriety and utility of parens patriae suits were clearly recognized. Id. at 257-8.

58 Geer v. Connecticut, 161 U.S. 519 (1896). The issue was whether the state had the power

to regulate the killing of game within its borders. See id. at 522. Under the state public trust doctrine, a state has the exclusive right of regulating wildlife within its jurisdiction. See id. at 522-23; see also Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907). Justice Oliver Wendell Holmes wrote:

This is a suit by a State for an injury to it in its capacity of quasi-sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air. It might have to pay individuals before it could utter that word, but with it remains the final power.

Tennessee Copper Co., 206 U.S. at 237. See generally Hudson County Water Co. v. McCarter, 209 U.S. 349 (1908). The "State Ownership Doctrine" was later repudiated in Kleppe v. New Mexico, 426 U.S. 529, 535-47 (1976), and overruled in Hughes v. Oklahoma, 441 U.S. 322, 325-39 (1979). It is well noted that the Hughes Court limited the general rule in that case to "make ample allowance for preserving, in ways not inconsistent with the Commerce Clause, the legitimate state concerns for conservation and protection of wild animals .... "Hughes, 441 U.S. at 335-36. Quoting from its decision in H.P. Hood & Sons v. Du Mond, 336 U.S. 525, 537 (1949), the Court made clear that "States may promote this legitimate purpose only in ways consistent with the basic principle that our economic unit is the Nation...." H.P Hood & Sons, Inc., 336 U.S. at 33S39.

59 Kleppe, 426 U.S. at 53547 (recognizing a wider ecological basis for wildlife protection and repudiating "State Public Trust" doctrine, under Property Clause of the Constitution). 60 Hughes, 441 U.S. at 32635 (overruling Geer, based on Commerce Clause and noting that Geer was decided "relatively early in the evolutionary process" of rules to accommodate state and federal interests). 61 JACK H. ARCHER ET AL., THE PUBLIC TRUST DOCTRINE AND MANAGEMENT OF AMERICA'S COASTS 34 (1994) (footnote omitted). See, e.g., Illinois v. Illinois Cent. R.R. Co., 184 U.S. 77, 94 (1902). "The title to submerged lands resting in the State, are held in trust in aid of navigation. Courts have at all times been diligent to protect and enforce rights of navigation, in aiding and protecting whatever may tend to build up and encourage commerce upon the seas." See id. See