The 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 Wildlife Society More online at wildlifejournals.org 19 The Future of Public Trust 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, landown- ers 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, particu- larly 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.