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The Public Trust Doctrine The Wildlife Society 5410 Grosvenor Lane, Suite 200 Bethesda, MD 20814-2144 301-897-9770 301-530-2471 Fax [email protected] Association of Fish and Wildlife Agencies 444 North Capitol Street, NW Suite 725 Washington, DC 20001 202-624-7890 202-624-7891 Fax [email protected] Western Association of Fish and Wildlife Agencies 522 Notre Dame Court Cheyenne, WY 82009 The Public Trust Doctrine 307-638-1470 307-638-1470 Fax Implications for Wildlife Management and [email protected] Conservation in the United States and Canada Wildlife Management Institute 1440 Upper Bermudian Road Gardners, PA 17324 Technical Review 10-01 717-677-4480 September 2010 [email protected] The Wildlife Society The Public Trust Doctrine: Implications for Wildlife Management and Conservation in the United States and Canada Technical Review 10-01 September 2010 “Defenders of the short-sighted men who in their greed and selfishness will, if permitted, rob our country of half its charm by their reckless extermination of all useful and beautiful wild things sometimes seek to champion them by saying that “the game belongs to the people.” So it does; and not merely to the people now alive, but to the unborn people. The “greatest good for the great- est number” applies to the number within the womb of time, compared to which those now alive form but an in- significant fraction. Our duty to the whole, including the unborn generations, bids us to restrain an unprincipled present-day minority from wasting the heritage of these unborn generations. The movement for the conservation of wildlife and the larger movement for the conservation of all our natural resources are essentially democratic in spirit, purpose, and method.” Theodore Roosevelt (1916) Armed for a hunt, Theodore Roosevelt makes ready to ride, circa 1900. Credit: Underwood and Underwood/Library of Congress The Public Trust Doctrine: Implications for Wildlife Management and Conservation in the United States and Canada Technical Review 10-01 September 2010 The Wildlife Society Association of Fish and Wildlife Agencies Western Association of Fish and Wildlife Agencies Wildlife Management Institute Technical Review Committee on the Public Trust Doctrine Gordon R. Batcheller (Chair) David Guynn New York State Division of Fish, Wildlife Department of Forestry and Natural Resources and Marine Resources 260 Lehotsky Hall 625 Broadway Clemson University Albany, NY 12233-4754 Clemson, SC 29634-0317 M. Carol Bambery Michael McEnroe General Counsel North Dakota Chapter of The Wildlife Society Association of Fish and Wildlife Agencies 7455 Brook Loop 444 North Capitol Street, N.W. Bismarck, ND 58503 Suite 725 Washington, D.C. 20001 Michael O’Brien Nova Scotia Department of Natural Resources Laura Bies 136 Exhibition Street The Wildlife Society Kentville, NS B4N 4E5 5410 Grosvenor Lane, Suite 200 Bethesda, MD 20814 John F. Organ * U.S. Fish and Wildlife Service Thomas Decker 300 Westgate Center Drive Vermont Fish and Wildlife Department Hadley, MA 01035-9589 103 South Main Street Waterbury, VT 05671-0501 Shawn J. Riley Department of Fisheries and Wildlife Steven Dyke 2D Natural Resources Building North Dakota Game and Fish Department Michigan State University 100 N. Bismarck Expressway East Lansing, MI 48824 Bismarck, ND 58501-5095 Gary Roehm 18425 Lost Knife Circle #203 Gaithersburg, MD 20886 * The findings and conclusions in this article are those of the The Wildlife Society author and do not necessarily represent the views of the U.S. 5410 Grosvenor Lane, Suite 200 Fish and Wildlife Service. Bethesda, MD 20814 This report is copyrighted by TWS, but individuals are granted permission to make single copies for noncommercial purposes. To view or download a PDF of this report, or to order hard copies, go to http://wildlife.org/TechnicalReview ISBN: 978-0-9830402-0-0 Front cover illustration: Bison roam the winter snows near Midway Geyser Basin in Yellowstone National Park Cover photo courtesy of Stephen Hoerold/iStockphoto Produced and distributed for The Wildlife Society by Worthy Shorts, Inc. Foreword Acknowledgments Presidents of The Wildlife Society (TWS) oc- In July 2006, the North Dakota Game and Fish casionally appoint ad hoc committees to study Department hosted the annual meeting of the and report on selected conservation issues. The Western Association of Fish and Wildlife Agen- reports ordinarily appear as technical reviews cies in Bismarck, North Dakota. The two-day or position statements. Technical reviews pres- plenary session, “Keeping the Public’s Wildlife ent technical information and the views of the Public,” focused on the Public Trust Doctrine appointed committee members, but not neces- and the implications for the North American sarily the views of their employers. Model of Wildlife Conservation. WAFWA subse- quently adopted a resolution in 2006 agreeing This technical review focuses on the legal un- to develop a strategic plan for strengthening the derpinnings and application of the Public Trust Public Trust Doctrine among member states Doctrine as it pertains to wildlife management and provinces, and to facilitate a comprehensive in the United States and Canada. The review review of the status of the Doctrine in coopera- was a collaborative effort by TWS, the Associa- tion with AFWA, TWS, and WMI. In March tion of Fish and Wildlife Agencies (AFWA), the 2007, a memorandum of understanding was Western Association of Fish and Wildlife Agen- signed by the cooperating entities to develop cies (WAFWA), and the Wildlife Management this technical review. Institute (WMI). The Committee expresses its sincere appre- ciation and recognition to the North Dakota Game and Fish Department and WAFWA for serving as the catalyst to begin the work of evaluating the status of the Public Trust Doc- trine in the U.S. and Canada. The Committee also expresses its gratitude to AFWA, TWS, and WMI for their support and encouragement. In particular, the Committee appreciates the legal resources provided by TWS and AFWA neces- sary to the completion of this technical review. Meeting facilities and logistic support were kindly provided by Michigan State University, the U.S. Fish and Wildlife Service in Bis- marck, and the North Dakota Game and Fish Department. The Committee appreciates the support and constructive review by members of TWS Coun- cil, and particularly by members of the Techni- cal Review subcommittee—John McDonald, Thomas Ryder, Bruce Thompson, and Don Yasuda—who provided oversight of the work of the Committee. The Public Trust Doctrine: Implications for Wildlife Management and Conservation in the United States and Canada 5 Table of Contents Foreword 5 Acknowledgments 5 Synopsis 9 Introduction 9 An Overview of the Public Trust Doctrine 10 Threats to the Public Trust Doctrine 15 Current Status of the Public Trust Doctrine in the U.S. and Canada 20 The Benefits of Strengthening the Public Trust Doctrine 24 Recommendations 25 Conclusions 26 Literature Cited 27 The Public Trust Doctrine: Implications for Wildlife Management and Conservation in the United States and Canada 7 SYnoPsis THE NORTH AMERICan MODEL OF WILDLIFE CONSERVatION The Public Trust Doctrine (PTD), with its origin in Roman civil law, is an essential element of The North American Model of Wildlife Con- North American wildlife law. The Doctrine es- servation has seven distinctive components tablishes a trustee relationship of government to (Geist et al., 2001): hold and manage wildlife, fish, and waterways for the benefit of the resources and the public. Fun- 1. Wildlife as a public trust resource. damental to the concept is the notion that natural 2. Elimination of markets for wildlife. resources are deemed universally important in 3. Allocation of wildlife by law. the lives of people, and that the public should have an opportunity to access these resources 4. Wildlife can only be killed for a legitimate for purposes that traditionally include fishing, purpose. hunting, trapping, and travel routes (e.g., the use 5. Wildlife is considered an international of rivers for navigation and commerce). resource. The PTD is also recognized as an essential 6. Science is the proper tool for discharge of foundation of what has been termed the “North American Model of Wildlife Conservation” (the wildlife policy. Model; Geist 1995). This model is viewed as 7. Democracy of hunting. an important construct of law, policy, program framework, and scientific investigation that has led to the protection, conservation, and restora- tion of wildlife populations in the U.S. and Can- Mahoney 2006, Organ and Batcheller 2009). ada (Geist et al. 2001). The underpinnings of the These threats in various ways are potentially PTD and the future relevance and successful harmful to the long-standing tenet that wildlife application of the Model may be at risk due to is a public trust resource. recent changes in society, government policies, Concerns regarding these threats and their and case law (Organ and Mahoney 2006). overall effects led to this technical review, Several significant threats have been identi- which includes an assessment of the current sta- fied that directly or indirectly erode or chal- tus of state and provincial statutes and case law lenge the PTD in North America (e.g., Geist related to the PTD. This review examines the and Organ 2004). These threats undermine benefits of the PTD and also outlines the role existing state, provincial, and federal laws, as of government agencies and their stakeholders well as governmental policies and programs. in maintaining public trust resources and the Moreover, they inhibit sound conservation rights, privileges, and benefits that the PTD practices for fish and wildlife resources. Ap- bestows upon the public. Recommendations are proaches to wildlife conservation that for many set forth with the objective of enhancing the decades have afforded protection and ensured PTD. Securing the PTD is seen as a significant the sustainability and conservation of wildlife action relevant to the continued protection, con- populations are dependent on the legal under- servation, and public use of wildlife resources in pinnings of the PTD.
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