The Legal Status of the Public Trust Doctrine

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The legal status Future of the Public of Trust Doctrine Public Trust

By John Organ and Shane Mahoney

18 The Wildlife Professional, Summer 2007 © The Wildlife Society ankind has a deep-rooted reverence for tion practitioners must consciously revisit its wild animals. Throughout history, we foundations so they can better understand its M have both feared and depended upon benefi ts, as well as the risks that citizens face wildlife for our survival. Not surprisingly, wild if wildlife is not robustly protected by public animals are also a focus of our art and spiritual- ownership and government trust. ity. Although humans value all kinds of animals, the range and depth of our emotions for wild Deep Roots of Public Trust animals are particularly pronounced, perhaps An1842 U.S. Supreme Court case resulted in because of the innate mystery of our encounters the Public Trust Doctrine. The ruling denied with them, so often furtive and fl eeting. In North a landowner’s claim to exclude all others from America, the historic importance of wild animals taking oysters from particular mudfl ats in New has been sustained by laws rooted in the premise Jersey. Chief Justice Roger Taney, in determin- that wildlife cannot be owned by people but ing that the lands under navigable waters were instead is held in trust by government for the held as a public trust, based the decision on his benefi t of all citizens. One reason the North interpretation of the Magna Carta (A.D. 1215). American model of wildlife conservation has The Magna Carta, in turn, drew upon the been hailed as the greatest model of effective Justinian Code—Roman law as old as western conservation worldwide is that it rests on a civilization itself: bedrock philosophy: Wildlife is a public resource, one that is held in trust. “By the law of nature these things are common to all mankind — the air, running Today, however, what came to be known as water, the sea, and consequently the shore the Public Trust Doctrine, and with it the North of the sea. No one, therefore, is forbidden American model of wildlife conservation, are to approach the seashore, provided that under siege. Increasing privatization of wildlife he respects habitations, monuments, and (where landowners restrict access to wildlife for the buildings, which are not, like the sea, personal profi t), a boom in the establishment of subject only to the law of nations.” game farms raising wildlife for sale, the animal rights movement, and other trends are continu- ally eroding the underpinnings of the Public Trust Doctrine. These developments threaten the legal mechanisms that allow for the protection and conservation of wildlife as a public resource. To protect the Public Trust Doctrine, conserva- © iStockphoto.com/Erickson

The roots of the Public Trust Doctrine in Roman Public Trust is … law are, of course, more complex than this Although both are pillars of the wildlife conserva- simple, eloquent statement. The Romans tion movement, neither the ancient concept of recognized an elaborate hierarchical system public trust nor the modern North American where property either belonged to the gods, Public Trust Doctrine has been exclusive to to the state, or to individuals. Each type of wildlife. The issue of the Public Trust Doctrine property had a special status and had to be re-emerged in 1970, with the writings of Joseph treated in a certain way. Romans also recognized Sax, a Harvard-trained legal scholar. In his common property (res communis) which could articleThe Public Trust Doctrine in the Natural not be privately owned. This category included Resource Law: Effective Judicial Intervention, wildlife (ferae naturae) and, in fact, nature Sax describes the four fundamental concepts that as a whole (res nullius). Under this system wild form the legal basis for public trust of natural animals could only be owned when the animal resources. He declares that the Public Trust is: was physically possessed, most typically when killed for food. Common law. At present, very few legal codes articulate the Public Trust Doctrine. While the English incorporated the substance Instead, issues related to public trust of Roman civil law in drafting the Magna Carta, resources are ruled upon by judges, and they also provided their own cultural perspective. are thus “judge-made law.” These laws English common law disliked the notion of evolve as they are interpreted through “things” without owners, so the king was given court decisions. vested ownership of public resources. As a result, under the English legal code, wildlife and nature State law. Laws concerning public trust were legally owned by the king, although not for resources differ from state to state: his private use. The king was a trustee of natural There is no single law that articulates the resources, a custodian with special responsibili- fundamental rights of all citizens to access ties to hold properties in trust for the public. and share public resources. (That being said, the trustee status of states in regard The American colonies worked under English law to wildlife is transferred to the U.S. federal until independence, a transition which voided government when wildlife falls within the king’s role as trustee of communal property. parameters of the United States Constitu- The colonies thus lacked a specifi ed trustee for tion in dealing with particular issues governing natural resources until an 1842 related to international treaty-making, Supreme Court ruling (Martin v. Waddell) that commerce, and federal-owned property.) gave individual states public trustee status. And though Canada modeled much of its legal system Property law. State laws that assert after Great Britain, Canada, too, opted for the property rights over public resources are same basic policies governing wildlife as did the invoking the rights embedded in the United States. philosophy of the Public Trust Doctrine— that certain kinds of property, like wildlife, The courts continued to refi ne the American are public property. idea of the Public Trust Doctrine in the decades following Martin v. Waddell. In 1896, the A Public right. Trust property is owned Supreme Court clearly articulated the theory of by the public and held in trust for the state ownership of wildlife (Geer v. Connecticut) benefi t of the public. Anyone who is a and made the fi rst explicit reference to wildlife as member of the public can claim rights a public trust resource. Since the Geer decision, to such property. the courts have continued to rule on the extent of the Doctrine’s applicability. At the same time, What’s at Stake the idea of public ownership of wildlife began to For millennia, human societies and cultures have be enshrined in state constitutions and in statute. almost universally held that wild animals should Although many aspects of Geer have been remain wild and be owned by no one. But in subsequently overturned, the idea of wildlife as recent years there has been a steady increase in a public trust resource has been sustained and enterprises seeking to privatize or commercialize become crucial to the conservation of wildlife wildlife. These efforts by individuals or corpora- in North America. tions create profound legal and philosophical

20 The Wildlife Professional, Summer 2007 © The Wildlife Society dilemmas. On one hand, every citizen, as a member of the public, has a right to access and use wildlife, as wild animals belong to the public as property in trust. On the other hand, landowners expect to be able to control access to the land they own, pay taxes on, or manage. The current status of the Public Trust Doctrine puts public rights, property law, and the very notion of “the commons” at loggerheads with private property rights and the quest for proﬁ t derived from wildlife, whether personal, corporate, or even communal.

Several core issues are riding on the direction Credit: iStockphoto.com/Degany the law takes in addressing these tensions. First, Tourists fl ock to observe majesty on public land—the regular eruptions of Yellowstone National if stewardship of wildlife is taken out of the Park’s Beehive Geyser. public domain and placed in private hands, the role of professional wildlife managers, particularly those employed by governments, will be If wildlife and its habitat are not protected weakened. If government employees charged under a strong and sound public trust system, with managing wildlife cannot put management practices into place and implement them across the public will not have the ability to challenge, the landscape, their ability to actually manage and therefore infl uence, management decisions. wildlife populations will be cut off at the knees. A lack of authority to oversee wildlife populations has potentially devastating implications—from to recognize the public’s right to enforce losing the capability to accurately monitor the doctrine against the government. wildlife populations or track the spread of disease, to being unable to properly enforce The Future of Public Trust protection of sensitive habitats and species. For the Public Trust Doctrine to be an effective wildlife conservation tool, the public must Second, if the strength of the Public Trust understand that wild animals, regardless of Doctrine deteriorates, the public’s acknowledged whose property they are on, belong to everyone. connection to wildlife could erode with it. In Furthermore, the government as trustee must be other words, a weakened Public Trust Doctrine, legally accountable for preventing the squander- in law and practice, would result in a diminished ing of the trust resource. Finally, the Doctrine ability of citizens to look at a scene of nature and must be up to date, with provisions for modern know, unequivocally, that all the elements of the resources and conservation practices—even those environment in their view are part of their citizen which may have not been considered by the origi- inheritance. Such a change in perception could nal architects of the public trust. For example, impact the very core of how experiences in Roman law established precedent for the modern nature, such as fi shing, hunting, hiking, birding, view that wildlife is owned by no one, but they and more, are valued by the public at large. could not have conceived of modern concerns over species extinctions and needs for active Third, and immensely troubling, is the reality management of wildlife. that if wildlife and its habitat are not protected under a strong and sound public trust system, Unfortunately, recent court proceedings portend the public will not have the ability to challenge, a tempestuous future for the Public Trust and therefore infl uence, management decisions. Doctrine. In Normal Parm, et al. v. Sheriff Mark The Public Trust Doctrine, in its ideal form, Shumate (2006), for instance, the United States provides the public with a legal right that can be District Court for the Western District of Louisi- enforced against the government. Challenges ana declared it was criminal trespassing for the made by members of the public have been crucial public to boat, fi sh, or hunt on the Mississippi in the development of management actions that River and other navigable waters of America. sustain natural populations as well as human This ruling makes illegal all recreational boating, economies. Eroding the Public Trust Doctrine fi shing, and waterfowl hunting on navigable could lead to courts becoming more hesitant waters, unless conducted in the main channel

beyond the laws that it has already inspired? And a further question must be asked: What needs to be done to ensure the Public Trust Doctrine survives the next 165 years and beyond?

A fi rst step in solidifying the Doctrine may be to revisit the statutory charters of state and provincial fi sh and wildlife agencies. The codes that govern the disposition of fi sh and wildlife should be explicit, not only in defi ning these resources as property of the jurisdiction, but also in mandating the responsibility to maintain these resources for the benefi t of present and future generations. Despite inevitable regional and cultural variability, the underlying tenets of the public trust should be consistent and easily interpreted. Where there is doubt, or room for dispute, agencies should immediately revise their Credit: J. Schmidt/NPS charters to clarify and exercise the core principles Bison were victims of the tragedy of the commons, shot in hoards as Americans moved west. of public trustee responsibilities in wildlife A concerted conservation effort has returned them to places like Yellowstone National Park. conservation. Codifying the Public Trust Doctrine in this way will be crucial to ensuring it remains of the river or with the permission of all riparian a vital tool for the protection and management landowners along the navigable river. Tradition- of wildlife in North America. ally, the Public Trust Doctrine had been interpreted to allow public access to the entire river, In future decades, will citizens continue to have from bank to bank. free access to enjoy wildlife in traditional as well as emerging pursuits? Will governments preserve In Kramer v. Clark Wis. (Ct.App., Dec. 21, biodiversity for future generations? Will wildlife 2006), the Wisconsin state court of appeals held remain wild? The answers to these questions will that a nonprofi t group seeking to preserve the depend signifi cantly upon people’s awareness wildlife and natural resources of Richland County of their innate share in the ownership of wildlife, did not have standing to challenge the county’s and in their shared responsibility for it. Govern- practice of granting rezoning petitions. The court ment trustees can help secure the Public Trust declared that the state Public Trust Doctrine does Doctrine by increasing public awareness and by not confer the right to challenge “any govern- increasing government responsiveness to the ment action that arguably impacts any natural needs and desires of all citizens, democratically resources in Wisconsin.” In Wisconsin, the enshrined and democratically discharged. doctrine has never been applied beyond the context of direct infringement of the public’s John Organ is President of The Wildlife Society rights in navigable waters, and the court has and Chief of Wildlife and Sport Fish Restoration directed that it cannot be applied to wildlife. for the Northeast Region of the U.S. Fish and Wildlife Service. These decisions may refl ect the courts’ diffi culty in distinguishing between government’s general Shane Mahoney is Executive Director of the obligation to act for the public benefi t and the Institute of Biodiversity, Ecosystem Science additional, and perhaps greater, obligation it has and Sustainability at Memorial University as trustee of certain public resources. For and the Executive Director of Sustainable example, in upholding its obligation to act Development and Strategic Science, Department for the public benefi t, a court may consider of Environment and Conservation, Government the current situation of a case under review as of Newfoundland and Labrador. relevant to a conservation or resource-use decision, but not factor in its trustee responsibility to perpetuate these resources for future For a bibliography of additional readings generations. The question remains, 165 years on laws and policies relating to the Public Trust Doctrine and links to court cases, after Martin v. Waddell: Does the Public Trust see this article online at wildlifejournals.org. Doctrine have any judicially enforceable right