The popular article states the whale was "property of the governor,"
but the actual opinion doesn't use that language, saying instead it
was property of the state. Is there any distinction there? Is there a
sense where Oregon's governor is the owner of all state property?
Equating the state with the Governor of that state acting in an official capacity is a common literary device, a bit like equating "the White House" with the office of the Presidency. It is not literal. The Governor does not, either personally, or even in his official capacity, own all property of the state. This literary device is called metonymy, which means "a figure of speech in which a concept is referred to by the name of something closely associated with that thing or concept."
In contrast, in monarchies, including constitutional monarchies like those of England, the monarch literally, albeit only technically, does own all of the property of the government (although as a practical matter, only some of it can be used as personal property) and the monarch is synonymous with the government
The state then, apparently, does not own non-royal fish, but still
regulates their capture. From where does it get this authority?
State governments have plenary (i.e. unlimited or general) authority to regulate everything in their territory that is not prohibited by the U.S. Constitution, federal law and treaties, or the state constitution. This is part of the basic structural design of U.S. federal system.
The state allows fishing and retention of another royal fish,
sturgeon. Does this require a special provision in Oregon law separate
from the normal fishing regulations?
Probably not.
Oregon probably has, as most U.S. states do, a common law maxim or statutory provision that provides that in the absence of any other controlling law, the generally applicable parts of common law of England at the time of the American Revolution control.
Presumably, this fishing rights/poaching issue was one in which the laws of Oregon were silent so the court turned to English common law for guidance. As the court the case explained, something similar is at work in this case:
The plaintiff claims that under the law the state is owner of all
"royal fish". Whales within coastal and inland waters have always been
a part of the king's own revenue and are denominated "royal fish". 1
Blackstone, 290. The rights and prerogatives of the crown under the
common-law were vested in the state by the Revolution. 4 Enc. U.S.
Reports, p. 84. The state now has all the prerogatives of sovereignty.
Public grants are to be construed strictly. Nothing passes by
implication, and all doubts are resolved in favor of the state. La
Plaisance Bay Harbor Co. v. City of Monroe, Walker's Ch. (Mich.) 155.
We take the quotation from State v. Hume, 52 Or. 1, 6 (95 P. 808), as
follows:
"The individual," says Mr. Justice Hadley in Smith v. State, 155
Ind. 611 (58 N.E. 1044, 51 L.R.A. 404) "has no natural right to take
game, or to acquire property in it, and all the right he possesses or
can possess in this respect is granted him by the state." The state
being thus invested with the title to animals ferae naturae, they
cannot be lawfully captured by any person without the express or
implied permission of the state.
State v. Lessard, 146 Or. 9, 10-11 (Or. 1934)
But, an Oregon statute or regulation would supersede any common law guidance regarding this matter.
As context, note that the case linked, State v. Lessard, 29 P.2d 509 (Or. 1934), was decided at a time when the State of Oregon has much less case law, statutory law, and far fewer regulations. The practice of having a government agency generate formal regulations under authority granted by state statutes was in its infancy at the time, especially at the state and local level. At the time it had less than 25% of Oregon's current population and the state was 75 years old. Now, the State of Oregon is 166 years old. So, there were a lot more gaps in Oregon's laws then than there are today.
