## Facts

- Dickinson Cheese Company, Inc. operated a cheese plant near the Heart River in Stark County, North Dakota.
- The State alleged the company discharged whey into the Heart River as part of its operations.
- The State claimed the discharge killed thousands of fish (about 36,000 pounds) and harmed river conditions for roughly twelve miles, effectively destroying the fish population in that reach.
- The State asserted that fish in public waters are held by the State for the benefit of the public and that the Game and Fish Department is responsible for their protection and conservation.
- The State sought monetary damages for the value of the destroyed fish and for environmental harm, and also sought exemplary damages.
- John Gurtner, the plant manager, was named as a defendant and filed a third-party complaint against the City of Dickinson.

## Issues

1. Whether the State has a legally cognizable property interest in wild fish in public waters (ferae naturae) sufficient to support a civil action for damages against alleged polluters who destroy them.
2. Whether the State’s complaint, assuming its allegations are true, stated a claim upon which relief could be granted such that dismissal at the pleading stage was improper.

## Decision

- The North Dakota Supreme Court reversed the dismissal of the State’s complaint and remanded for further proceedings.
- The court held the State has a sufficient quasi-proprietary interest in wild fish in public waters, held for the public benefit, to maintain an action for damages when those fish are unlawfully destroyed.
- Applying the rule governing dismissal for failure to state a claim, the court concluded it was not beyond doubt that the State could prove no set of facts entitling it to relief.

## Legal Principles

- Fish in public waters are ferae naturae, but the State holds a form of ownership or title in trust for the people to regulate, conserve, and protect the resource.
- The State’s regulatory authority over fish includes authority to protect fish against destruction by pollution of the waters they inhabit.
- The existence of statutory regulation of fish and waters does not necessarily displace a common-law damages remedy when the State’s protectable interest is harmed.
- A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.

## Conclusion

The court ruled that North Dakota’s trustee-like interest in wild fish in public waters is sufficient to support a civil damages action for pollution-related fish kills, and it reversed the pleading-stage dismissal so the State could proceed on its claims.


State v. Dickinson Cheese Co., 200 N.W.2d 59 (N.D. 1972)