The Public Trust Doctrine: Implications for Wildlife Management and

The Public Trust Doctrine

Implications for Wildlife Management and

Conservation in the United States and Canada

Technical Review 10-01

September 2010

Association of Fish and Wildlife Agencies

444 North Capitol Street, NW

Suite 725

Washington, DC 20001

202-624-7890

202-624-7891 Fax

info@shwildlife.org

Western Association of Fish and Wildlife Agencies

522 Notre Dame Court

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307-638-1470

307-638-1470 Fax

larry.kruck[email protected]e.wy.us

Wildlife Management Institute

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717-677-4480

swilliams@wildlifemgt.org

The Wildlife Society

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301-530-2471 Fax

TWS@wildlife.org

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 selshness 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-

signicant 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)

The Wildlife Society

Credit: Underwood and Underwood/Library of Congress

Armed for a hunt, Theodore Roosevelt

makes ready to ride, circa 1900.

David Guynn

Department of Forestry and Natural Resources

260 Lehotsky Hall

Clemson University

Clemson, SC 29634-0317

Michael McEnroe

North Dakota Chapter of The Wildlife Society

7455 Brook Loop

Bismarck, ND 58503

Michael O’Brien

Nova Scotia Department of Natural Resources

136 Exhibition Street

Kentville, NS B4N 4E5

John F. Organ *

U.S. Fish and Wildlife Service

300 Westgate Center Drive

Hadley, MA 01035-9589

Shawn J. Riley

Department of Fisheries and Wildlife

2D Natural Resources Building

Michigan State University

East Lansing, MI 48824

Gary Roehm

18425 Lost Knife Circle #203

Gaithersburg, MD 20886

Gordon R. Batcheller (Chair)

New York State Division of Fish, Wildlife

and Marine Resources

625 Broadway

Albany, NY 12233-4754

M. Carol Bambery

General Counsel

Association of Fish and Wildlife Agencies

444 North Capitol Street, N.W.

Suite 725

Washington, D.C. 20001

Laura Bies

The Wildlife Society

5410 Grosvenor Lane, Suite 200

Bethesda, MD 20814

Thomas Decker

Vermont Fish and Wildlife Department

103 South Main Street

Waterbury, VT 05671-0501

Steven Dyke

North Dakota Game and Fish Department

100 N. Bismarck Expressway

Bismarck, ND 58501-5095

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

The Wildlife Society

5410 Grosvenor Lane, Suite 200

Bethesda, MD 20814

* The ndings and conclusions in this article are those of the

author and do not necessarily represent the views of the U.S.

Fish and Wildlife Service.

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.

Acknowledgments

In July 2006, the North Dakota Game and Fish

Department hosted the annual meeting of the

Western Association of Fish and Wildlife Agen-

cies in Bismarck, North Dakota. The two-day

plenary session, “Keeping the Public’s Wildlife

Public,” focused on the Public Trust Doctrine

and the implications for the North American

Model of Wildlife Conservation. WAFWA subse-

quently adopted a resolution in 2006 agreeing

to develop a strategic plan for strengthening the

Public Trust Doctrine among member states

and provinces, and to facilitate a comprehensive

review of the status of the Doctrine in coopera-

tion with AFWA, TWS, and WMI. In March

2007, a memorandum of understanding was

signed by the cooperating entities to develop

this technical review.

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.

Foreword

Presidents of The Wildlife Society (TWS) oc-

casionally appoint ad hoc committees to study

and report on selected conservation issues. The

reports ordinarily appear as technical reviews

or position statements. Technical reviews pres-

ent technical information and the views of the

appointed committee members, but not neces-

sarily the views of their employers.

This technical review focuses on the legal un-

derpinnings and application of the Public Trust

Doctrine as it pertains to wildlife management

in the United States and Canada. The review

was a collaborative effort by TWS, the Associa-

tion of Fish and Wildlife Agencies (AFWA), the

Western Association of Fish and Wildlife Agen-

cies (WAFWA), and the Wildlife Management

Institute (WMI).

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 Benets 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

The Public Trust Doctrine: Implications for Wildlife Management and Conservation in the United States and Canada 9

Mahoney 2006, Organ and Batcheller 2009).

These threats in various ways are potentially

harmful to the long-standing tenet that wildlife

is a public trust resource.

Concerns regarding these threats and their

overall effects led to this technical review,

which includes an assessment of the current sta-

tus of state and provincial statutes and case law

related to the PTD. This review examines the

benets of the PTD and also outlines the role

of government agencies and their stakeholders

in maintaining public trust resources and the

rights, privileges, and benets that the PTD

bestows upon the public. Recommendations are

set forth with the objective of enhancing the

PTD. Securing the PTD is seen as a signicant

action relevant to the continued protection, con-

servation, and public use of wildlife resources in

North America.

INTRODUCTION

Wildlife professionals have used the Model to

describe the system of conservation and natural

resource management that has developed over

the past two centuries in the U.S. and Canada

SYNOPSIS

The Public Trust Doctrine (PTD), with its origin

in Roman civil law, is an essential element of

North American wildlife law. The Doctrine es-

tablishes a trustee relationship of government to

hold and manage wildlife, sh, and waterways for

the benet of the resources and the public. Fun-

damental to the concept is the notion that natural

resources are deemed universally important in

the lives of people, and that the public should

have an opportunity to access these resources

for purposes that traditionally include shing,

hunting, trapping, and travel routes (e.g., the use

of rivers for navigation and commerce).

The PTD is also recognized as an essential

foundation of what has been termed the “North

American Model of Wildlife Conservation” (the

Model; Geist 1995). This model is viewed as

an important construct of law, policy, program

framework, and scientic investigation that has

led to the protection, conservation, and restora-

tion of wildlife populations in the U.S. and Can-

ada (Geist et al. 2001). The underpinnings of the

PTD and the future relevance and successful

application of the Model may be at risk due to

recent changes in society, government policies,

and case law (Organ and Mahoney 2006).

Several signicant threats have been identi-

ed that directly or indirectly erode or chal-

lenge the PTD in North America (e.g., Geist

and Organ 2004). These threats undermine

existing state, provincial, and federal laws, as

well as governmental policies and programs.

Moreover, they inhibit sound conservation

practices for sh and wildlife resources. Ap-

proaches to wildlife conservation that for many

decades have afforded protection and ensured

the sustainability and conservation of wildlife

populations are dependent on the legal under-

pinnings of the PTD. The degree and magni-

tude of the threats are not universal, though

the following issues have been recognized as

signicant challenges: inappropriately claim-

ing ownership of wildlife as private property;

unregulated commercial sale of live wildlife;

prohibitions on access to and use of wildlife;

personal liability issues; and a value system

oriented toward animal rights (Organ and

The NorTh AmericAN model

of Wildlife coNservATioN

The North American Model of Wildlife Con-

servation has seven distinctive components

(Geist et al., 2001):

1. Wildlife as a public trust resource.

2. Elimination of markets for wildlife.

3. Allocation of wildlife by law.

4. Wildlife can only be killed for a legitimate

purpose.

5. Wildlife is considered an international

resource.

6. Science is the proper tool for discharge of

wildlife policy.

7. Democracy of hunting.

10 The Wildlife Society Technical Review 10–01 September 2010

AN OVERVIEW OF THE PUBLIC TRUST DOCTRINE

The Trust Dened and Why it Matters

Simply dened, a trust is a collection of assets

committed or entrusted to one to be managed

or cared for in the interest of another. The party

to whom the trust assets are committed is com-

monly referred to as the trustee, whereas the

party for whom the assets are being managed

is referred to as the beneciary of the trust.

Accordingly, the PTD holds that publicly owned

wildlife resources are entrusted to the govern-

ment (as trustee of these resources) to be man-

aged on behalf of the public, the beneciaries.

Consequently, governmental institutions do not

own trust resources; rather, they are owned

by the public and are entrusted in the care of

government to be safeguarded for the public’s

long-term benet.

The PTD has been described by some as

the cornerstone of the Model (Geist et al.

2001, Geist and Organ 2004, and Prukop and

Regan 2005). This viewpoint holds that the

PTD establishes the core principles central to

the Model—the notion that wildlife is a public

resource, managed for the common good, and

held in custodianship by a cadre of trained

professionals who serve as trustees (Brulle

2000) and are held accountable by the bene-

ciaries, the public.

Alternative models have developed in other

countries and are frequently based on privately

owned sh, wildlife, and habitat managed for

personal or corporate gain. In such cases, the

general public may receive little or no apparent

benet from wildlife resources. A number of

undesirable outcomes may result from a system

of wildlife management not anchored on a PTD

foundation including:

( a) a diminished connection or indiffer-

ence toward wildlife resources stemming

from a disassociation with nature, which

means wildlife may become irrelevant to

the general public thereby reducing public

support for conservation.

(b) wildlife resources that are viewed as an

artifact of the past, separated from mod-

ern life, to be seen and appreciated yet

(Geist 1995). The PTD—as it relates to water

resources, submerged lands, and by extension

to sh, wildlife, and other natural resources—

provides the cornerstone upon which the highly

successful Model was built.

In support of the Model, the North Dakota

Chapter of TWS requested that TWS adopt

the seven principles of the Model as a basis for

guiding and providing input on wildlife man-

agement policy, work to enshrine the Model into

international treaty law between Canada and

the U.S., develop education and information

strategies in support of the Model, and seek the

support of other conservation organizations to

pursue similar actions.

Following the 2006 WAFWA annual confer-

ence in North Dakota, a resolution was adopted

to encourage the development of a strategic plan

to strengthen application of the PTD among

member states and provinces and to facilitate a

legal analysis, in cooperation with AFWA, WMI,

and TWS, of the current status of the Doctrine

in member states and provinces.

In March 2007, TWS approved a position

statement on the Model, as well as a proposal

to prepare a technical review of the PTD in

collaboration with WAFWA, AFWA, and WMI.

The purpose of this technical review was to:

(1) synthesize and interpret existing materials

on the PTD as it relates to wildlife manage-

ment and conservation; (2) review the status

and scope of state and provincial legislation as

it relates to the PTD; and, (3) identify com-

ponents that should be included in state or

provincial statute, state or provincial wildlife

agency charter, or other authorizations and

executive proclamations to ensure a legally de-

fensible PTD. Questions that guided the tech-

nical review committee focused on legal “own-

ership” of wildlife, origins of state or provincial

laws addressing issues of wildlife management

and conservation, clarity of agency authority

to manage wildlife, legal tenets that provide

evidence the PTD is in place, variability among

laws or protection among jurisdictions or

among various wildlife species, and competing

agency authorities (i.e., among state wildlife

and agriculture departments, or between state

and federal agencies).

The Public Trust Doctrine: Implications for Wildlife Management and Conservation in the United States and Canada 11

the legal texts of the time, stated: “By the

law of nature these things are common to all

mankind: the air, running water, the sea, and

consequently the shores of the sea” (Koehl

2006). Thus, common property could be

owned by no one, affording all citizens access

to it. Roman civil law was reafrmed by the

English Magna Carta in 1215 AD, and rede-

ned by English common law in 1641. English

disfavor for “ownerless property” caused them

to express the Roman concept in a less asser-

tive way by assigning ownership of common

property to the king, not for his private use,

but as a trustee of these properties for the

benet of the people (Horner 2000, Henquinet

and Dobson 2006, Organ 2006). In earlier

times this arrangement resulted in the disper-

sion of privileges taken or allowed by royalty

(Blumm and Ritchie 2005). Regarding waters,

this introduced the concept of common ease-

ments for public navigation and shing with

an understanding that the Crown owned sub-

merged lands and shorelines in trust for the

people (Henquinet and Dobson 2006).

with a lack of understanding and accep-

tance of sustainable use, and

threat to be minimized to the extent pos-

sible rather than an asset to be conserved

and managed for the benet of current

and future generations.

History of the Public Trust Doctrine

The roots of the PTD can be traced to early

Greek and Roman civil law. By the sixth cen-

tury Roman civil law, The Justinian Institutes,

fisheries ANd The

Public TrusT docTriNe

Navigation, access to public water, and in-

deed the privilege to sh (Martin v. Waddell,

1842) have all been a part of the Public Trust

Doctrine. Fisheries conservation and wildlife

conservation are intertwined institutionally

throughout North America. The technical

review committee chose to focus on wildlife

conservation and exclude specic reference to

sheries for a number of reasons:

• Fisheries conservation and wildlife conser-

vation arose from different origins.

• Historically, wildlife conservation is largely

attuned to restoration, while sheries con-

servation is primarily attuned to propaga-

tion.

• Commercial harvest is integral to sher-

ies conservation, while its elimination has

been a cornerstone of wildlife conservation.

• Institutionally, federal (U.S.) sheries over-

sight is split between the Interior and Com-

merce Departments, while federal trust

authority for wildlife is primarily contained

within the Department of Interior.

These and other factors cloud the linkage

between wildlife and sheries and the resul-

tant ‘noise’ would hinder addressing public

trust applications for both within the same

document.

Credit: Library of Congress

Workers in Baltimore prepare oysters for shipping in

1905. Oyster harvest was at the center of the 1842 U.S.

Supreme Court decision in Martin v. Waddell, which

established a central tenet of the Public Trust Doctrine—

public ownership of public resources.

12 The Wildlife Society Technical Review 10–01 September 2010

Traditional public interests protected by the

PTD were navigation, commerce, and shing.

Subsequent court cases mainly addressed these

three interests during the 20

Century. How-

ever, Geer v. Connecticut (1896) included “wild

fowling” within a state’s trustee responsibili-

ties. Although partially reversed in Hughes v.

Oklahoma (1979), state statutes and state courts

continue to assert state trusteeship of wildlife.

Recent case law has markedly expanded the

application of the Doctrine. For example, the

California Supreme Court in Marks v. Whit-

ney (1971) opined that considering the chang-

ing needs of the public, a state is not bound to

protect just the traditional interests addressed

by early case law. Rather, that court found

that ecological protection was a public interest

afforded oversight by the Doctrine (Henqui-

net and Dobson 2006). Other recent case law

has expanded the relevance of the Doctrine to

In the U.S., English common law was ap-

plied to the 13 colonies, and eventually rede-

ned and assigned to the states by the courts

following America’s independence (Henquinet

and Dobson 2006). In doing so the American

courts abolished the English system of royal

prerogatives and reestablished or restored

and strengthened the full public trust concept

(Blumm and Ritchie 2005). In 1821 the New

Jersey Supreme Court, in deciding Arnold v.

Mundy, corrected England’s diversions from

Roman civil law, which were only partially

restored by the Magna Carta, by stating that the

ownership of water and underlying lands trans-

ferred to New Jersey’s citizens upon statehood,

thus returning public trust law closer to the

original Roman concept (Henquinet and Dob-

son 2006).

The rst federal court decision afrming the

PTD occurred in 1842 when the U.S. Supreme

Court in Martin v. Waddell found that the

public held a common right to sh in navigable

and tidal waters of New Jersey because they and

their underlying lands were owned by the state

for the common use by the people. Subsequent

court ndings reafrmed such public ownership

including cases addressing the Equal Footings

Doctrine (Shively v. Bowlby 1894), which de-

scribed rights of states newly admitted into the

Union (Henquinet and Dobson 2006).

Credit:Eon Images

The Roman Forum still stands as a symbol of the empire

that established the broad principles of a “public trust”

nearly two millennia ago, ensuring public access to

common property.

Credit: Library of Congress

In 1842, U.S. Supreme Court Chief Justice Roger B. Taney

cited the Magna Carta in Martin v. Waddell, the ruling that

established the basis for the Public Trust Doctrine in the

United States.

The Public Trust Doctrine: Implications for Wildlife Management and Conservation in the United States and Canada 13

protect the natural environment from actual or

likely impairment.” At this time the concept of

public trust established in these statutes has not

been tested in court.

Although Canadian courts obviously are not

bound by U.S. case law, it may be considered in

their deliberations. Koehl (2006) summarized

recent favorable comments in regard to the prin-

ciple of the PTD in a judgment by the Supreme

Court of Canada. The reference to the PTD was

particularly interesting in that previous Cana-

dian references were in cases dealing with water

resources and the cited case dealt with forests

(damage caused by a re negligently started by

a logging company). The author suggested that

discussion of the PTD in the case allowed for

optimism that Canada’s courts may expand ap-

plication to other natural resources. Until there

is a broader acceptance of a doctrinal concept in

Canada similar to the PTD applied in the U.S.,

the actions of natural resource managers will

be driven more by a desire to implement “wise

policy” to protect the public interest than by a

legal obligation imposed by a public trust.

Collectively, case law and history illustrate the

exibility of the PTD to meet the contemporary

needs of the public. The PTD is neither inexible

nor static (Stenehjem 2005). Flexibility is con-

sidered one of the strengths of the Doctrine, and

is a prerequisite of its continued effectiveness

for future generations (Annear 2002, Stenehjem

2005, Henquinet and Dobson 2006). Sax (1970)

described capability to respond to contemporary

concerns as one of the three factors the PTD must

achieve to remain effective. The other two fac-

tors he cited include the general public’s under-

standing that it describes a legal right, and that

it be enforceable against the government. For a

more complete discussion of the history of the

PTD, refer to Sax (1970), Cottriel (1996), Horner

(2000), Grant (2001), Blumm and Ritchie (2005),

Henquinet and Dobson (2006), Organ (2006),

and Simmons (2007).

Relationship to the North American Model

Maintaining the elements of the PTD must be

ensured to maintain the integrity of the Model

include such diverse topics as wildlife habitat;

the open seas; environmental protection from

development, pollution, and invasive species;

recreational activities such as swimming, parks,

and historic monuments; public health; bath-

ing; ood prevention; aesthetic values such

as open and scenic beauty; diversion of water

for domestic, industrial, and agricultural pur-

poses; religious and cultural interests; and even

the electromagnetic spectrum (Cottriel 1996,

Stenehjem 2005, Henquinet and Dobson 2006,

Organ 2006, and Simmons 2007).

In Canada, as a part of the British Common-

wealth of which the reigning British monarch

is the symbolic head of state, common or public

property is referred to as assets of the “Crown.”

Most of the provincial statutes relating to public

lands and wildlife describe ownership as “vest-

ed in His/Her Majesty in the right of the Prov-

ince,” which in modern times implies held in

trust for the benet of the people. For example,

the Nova Scotia Wildlife Act states the follow-

ing in reference to ownership of wildlife: “. . .

the property in all wildlife situate within the

Province, while in a state of nature, is hereby

declared to be vested in Her Majesty in right of

the Province and no person shall acquire any

right or property therein otherwise than in ac-

cordance with this Act and the regulations.”

In contrast, after review of the basis and ap-

plication of the PTD in Canada, Henquinet and

Dobson (2006) concluded that only a rudimen-

tary PTD, related to the public’s right to navigate

and sh in navigable waters, existed in Canada.

Those authors indicated few instances of case law

in Canada that dealt with public trust issues, and

virtually no articulation of a PTD.

The Yukon and Northwest Territories have

incorporated the concept of public trust into

statutes related to natural resources. Section

6 of the Northwest Territories Environmental

Rights Act (1990) states the need “to protect the

integrity, biological diversity, and productivity

of the ecosystems in the Northwest Territo-

ries” and the “right to protect the environment

and the public trust.” The Environment Act of

the Yukon, passed in 1991, recognizes that the

government is a “trustee of the public trust to

14 The Wildlife Society Technical Review 10–01 September 2010

beneciary (the public itself) could therefore

create grave consequences for conservation.

Other threats (e.g., animal-rights values) claim

a social or moral consciousness asserting that

non-human animals are sentient (have the abil-

ity to suffer) and therefore, like humans, may not

be owned. This concept is in direct conict with

the central premise of the PTD, which holds that

wild animals are a publicly owned resource that

can be renewably and sustainably managed.

The Role of the Trustee

Within a trust relationship the trustee manages

assets that belong to others. The trustee there-

fore must be accountable to the beneciaries of

the trust. The PTD requires accountability of

government for its actions in managing publicly

owned assets. The public, as beneciary of the

trust, has legal rights to enforce accountability

upon its government, typically through litiga-

tion and less commonly via elections or ballot

initiatives.

These critical elements of the Doctrine were

made clear in 1892 by the landmark U.S. Su-

preme Court case Illinois Central Railroad

Co. v. Illinois. The court supported the Illinois

Legislature in rescinding a prior grant by the

(Geist and Organ 2004). Pioneer conservation-

ists developed the model of conservation prac-

ticed on the North American continent during

the 19

and early 20

centuries. This Model

is globally and historically unique and thus

far has demonstrated success in contributing

to the conservation of wildlife in the U.S. and

Canada. The Model evolved in response to the

continental demise of once abundant wildlife

resources due to unregulated economic markets

that placed value only on harvested wildlife. It

asserts that wildlife is a public resource, and

therefore should be managed by governmental

trustees as a public trust for the benet of all

people.

If the public’s ownership of wildlife, or the

value they place in it, is compromised, the

Model could be jeopardized. Threats to the PTD

(e.g., inappropriate or unsustainable commer-

cialization and privatization of wildlife) exist

and are increasing. If these threats prevail, the

trust (wildlife populations or their habitats,

water quantity and quality) could become mis-

managed, or the public may lose access to these

resources resulting in their value to the public

becoming diminished. Lack of awareness and

understanding of the benets and responsibili-

ties of the Doctrine leading to social and legal

indifference by the trustee (government) or the

Credit: SUNY-ESF Archives/Franklin Moon Library

As governor of New York

in 1928, Franklin Delano

Roosevelt visits the New

York College of Forestry,

where a cadre of wildlife

scientists gained training to

protect forest resources for

future generations.

The Public Trust Doctrine: Implications for Wildlife Management and Conservation in the United States and Canada 15

The Role of the Beneciaries

The public is the beneciary of the trust for whom

assets are managed. Trustee accountability for

those assets is necessary for the PTD to be effec-

tive, and will be best served with an informed

and engaged public. Public input into decision-

making processes will help assure trustee under-

standing of and responsiveness to contemporary

needs, as well as public understanding of com-

peting demands on trust resources. Courts in

California, Connecticut, Indiana, and Minnesota

have explicitly granted the public legal standing

under the PTD, albeit without explicitly referenc-

ing wildlife resources. (Case law that addresses

wildlife in the context of the PTD are summa-

rized beginning on page 21.)

THREATS TO THE PUBLIC TRUST DOCTRINE

Privatization and commercialization of wildlife

There is widespread and frequent use of the

terms “privatization” and “commercialization”

when discussing sh and wildlife resources.

They often mean distinctly different things to

some people, whereas others have difculty

distinguishing the difference among the two.

Therefore, it is helpful to offer an important

distinction to help frame this discussion.

In some states and provinces it is lawful to

own domesticated native or exotic animals

whose ancestry is of a recent wild origin (e.g.,

game farms that propagate elk, white-tailed

deer, upland game birds, falconry, alligator

farms, and fur farms). Management practices

that characterize these operations include ge-

netic husbandry (e.g., raising game species with

“trophy” antlers and the sale of genetic material

to game farms), marketing meat and parts (e.g.,

antlers), and hunts within fenced enclosures.

The legal status of captive animals held under

these conditions varies among state and pro-

vincial agencies, including whether they remain

“trust resources” or private property. This raises

an important legal question: Is a wild animal

enclosed within a large fenced area and osten-

sibly “free roaming” the property of the private

landowner or part of the public trust? Is there a

distinction between the status of a wild animal

state to the railroad of submerged land in Lake

Michigan along virtually the entire shoreline of

Chicago. The court, in acknowledging the public

ownership of submerged lands in navigable wa-

ters and the state’s role in holding these lands in

trust for the public, found that the state was not

empowered to relinquish the trust’s assets. Such

a grant would have substantially impaired the

public’s rights and exceeded the state’s authority

as trustee of the land (Sax 1970, Horner 2000,

Henquinet and Dobson 2006, Simmons 2007).

This important case had several meaningful

contributions to the development of the PTD. It

expanded the application of the Doctrine to navi-

gable waters not inuenced by tides, and it clearly

dened the role and responsibility of the govern-

mental trustee. The court found the state could

no more abdicate its trust over property than it

could its police powers in the administration of

government and the preservation of the peace

(Sax 1970, Horner 2000, Stenehjem 2005).

The role of federAl AgeNcies iN

The Public TrusT docTriNe

Federal natural resource agencies, including

the U.S. Fish and Wildlife Service, National

Park Service, U.S. Forest Service, Bureau of

Land Management, Canadian Wildlife Ser-

vice, Parks Canada, and others have public

trust roles and responsibilities. The U.S. Con-

stitution provides for the federal government

to act as trustee when wildlife interests come

under the purview of any of three clauses:

the Property Clause, the Commerce Clause,

or the Supremacy Clause (Bean and Rowland

1997). The Migratory Bird Treaty Act and

Endangered Species Act are grounded in the

Supremacy Clause (federal treaty-making

power), and the Lacey Act is grounded in

the Commerce Clause. However, the charge

to this technical review committee was to

assess the adequacy and variability of state-

and provincial-based legal authorities and to

develop recommendations for strengthening

the PTD at this level. Therefore, we do not ad-

dress federal implications in this paper.

16 The Wildlife Society Technical Review 10–01 September 2010

erations, the animal is frequently euthanized

as most regulatory entities will not allow its

release to the wild because of disease concerns.

In some instances the operator may release the

animal back into the wild without reporting it

to avoid attention by the regulating agency, or

may simply illegally incorporate the animal into

its business venture. In each of these instances,

the wildlife ceases to belong to the public. With

the conrmation of chronic wasting disease in

16 states and two provinces (Chronic Wasting

Disease Alliance 2009), many wildlife jurisdic-

tions require or advocate for the use of double

perimeter fences to avoid nose to nose contact

among wild ungulate populations on the outside

and captive populations inside. Where states or

provinces assign primary regulatory jurisdic-

tion to their agricultural agencies, their respec-

tive wildlife agencies may not have sufcient

authority to initiate safeguards and protective

measures on the captive wildlife industry to

protect free-ranging wildlife maintained in the

public trust (Lien 2002).

Generally, commercialization places mon-

etary value on wildlife and their parts, and as a

result provides an incentive or reward for their

use. Placing monetary value on dead or live

wildlife has the potential to threaten the public

ownership of wildlife resources by raising the

incentive for privatization. This may apply to

the illegal trafcking of live wildlife by collec-

tors (e.g., the exotic pet trade), or the illegal sale

of wildlife parts (e.g., migratory bird feathers,

sturgeon roe). Illegal taking of wildlife is a theft

from the public trust thus violating the PTD.

The Lacey Act (1900) was adopted by the U.S.

Congress in response to the threat to wildlife

populations caused by commercial exploita-

tion—primarily the millinery trade’s unregu-

lated and unsustainable demand for the feathers

of herons, egrets, and other water birds.

It is widely recognized that the unregulated

commercial use of wildlife is often unsustain-

able. However, in most jurisdictions some

commercialization of wildlife is allowed under

highly regulated legal regimes. In North Amer-

ica it is generally accepted that wildlife belongs

to the public until it is lawfully taken, at which

point it becomes the private property of the tak-

that happens to be enclosed by a fence, and an

animal deliberately placed within an enclosure?

These are central legal issues associated with

the PTD and wildlife conservation in North

America, but they have not yet been conclusive-

ly addressed in case law.

Although the captive wildlife industry is

regulated to varying degrees by state agricultural

or wildlife agencies, there are several potential

problems, including the transmission of diseases

to free-ranging populations (Lanka et al. 1990;

Demarais et al. 2002). Some states now require

double-fencing or other assurances that captive

animals may not escape to the wild, but a uni-

form approach has not been adopted. Captive op-

erations can have problems with animals escap-

ing into the wild, wild animals entering private

enclosures, or both (Fischer and Davidson 2005).

This lack of separation among captive and wild

individuals has serious negative ramications to

the general health and well-being of wild popula-

tions, particularly with respect to maintaining

genetic purity and spreading disease (Geist 1995;

Demarais et al. 2002).

In those instances where wild animals are

found and reported inside high fenced op-

Credit: North Dakota Game and Fish Department

A fenced enclosure on a game farm near Turtle Lake,

North Dakota prevents white-tailed deer from leaving

the owner’s poroperty. Keeping deer and other wildlife

captive can lead to disease transmission and, on a broader

scale, threatens a key tenet of the Public Trust Doctine:

that wildlife should not be privately owned and should be

accessible to all.

The Public Trust Doctrine: Implications for Wildlife Management and Conservation in the United States and Canada 17

incentives can promote unethical practices or

even illegal harvest of wildlife to supply the

markets created by the commerce associated

with privately-owned wildlife. Moreover, the

commercialization and privatization of wild-

life contradicts the very premise of a “public”

resource and would render the PTD and the

Model moot.

Access to Wildlife

Although there are differences among states

and provinces, the public is having an increas-

ingly difcult time gaining entry to hunt or

trap on private property or reach tracts of public

land (Responsive Management/National Shoot-

ing Sports Foundation 2008). Recently the

sporting press recognized the issue of private

land access to public land, and in one article

suggested purchasing “gateway properties” that

border public land to gain nearly “exclusive ac-

cess” (Howlett 2008). The amounts of fees being

paid vary widely and depend on the type and

duration of the hunt. This is particularly discon-

certing because a large segment of the hunting

public either cannot afford additional user fees

or is philosophically opposed to paying a tres-

pass or access fee to hunt (Duda et al. 1998).

As a result, some members of the public unable

or unwilling to pay access or trespass fees have

become solely dependent on public lands. Oth-

ers may stop hunting due to the frustration of

not having a place to hunt or because of over-

crowding on public land. If the hunting public

becomes disenchanted with either the quality

of the hunt or having to pay too high a price to

hunt, they may quit hunting (Responsive Man-

agement/National Shooting Sports Foundation

2008), and consequently could also stop sup-

porting wildlife conservation efforts. Over time,

access for other uses of wildlife (e.g., observa-

tion) may also be compromised. Collectively

and cumulatively, the loss of access to wildlife

for a diversity of uses is likely to erode support

for public custodianship of wildlife resources, a

central premise of the PTD.

The relationship between public access and

private property can extend to public lands where

private ownership patterns may legally preclude

er. “Lawfully taken” is a critical distinction in

the legal analysis, as are other regulations that

may apply. Once deemed private property, the

disposal of dead wildlife and its parts is subject

to the regulation of the appropriate jurisdiction.

For example, it is common for the non-edible

parts of lawfully taken, non-migratory wildlife

species to be legally sold, traded, or bartered.

The sale of heads, hides, horns, or antlers of

lawfully taken wildlife is legal in many states

and provinces. Trapping is an important wild-

life management tool in most of North America,

and the pelts of furbearing animals lawfully

taken during regulated trapping seasons are an

important form of legal commerce. However,

most jurisdictions do not allow the sale of le-

gally taken live game species or edible portions

of legally taken game. There is also growing

recognition that some taxa, such as reptiles, are

heavily exploited for commercial reasons and

additional regulation of commercial activities is

needed.

In some cases there may be little distinction

between privatization of wildlife and its com-

mercialization. Commerce in captive (privately

owned) wildlife species may threaten the public

trust in several ways. The markets created from

this industry may provide incentive to some

people to illegally exploit those markets with

publicly owned wildlife or their parts. These

Credit: New York State Department of Environmental Conservation

Fur traders scout pelts at an auction in Herkimer County,

New York—part of the legal market for wildlife products.

Lawful trapping, guided by oversight from wildlife profes-

sionals, is consistent with the North American Model of

Wildlife Conservation.

18 The Wildlife Society Technical Review 10–01 September 2010

just another possession of the privileged class,

resulting in widespread poaching (Geist 1985).

Changing perspectives may occur to some

degree as the general public nds wildlife of

little value to them if they are precluded from

its use by high cost or lack of access. Should the

management of the trust’s assets disenfranchise

people, their interest in conserving these assets

may wane. As they sense less personal owner-

ship or value, less utility or inequitable access to

their assets, their proprietorship may decrease.

Public antipathy towards wildlife may in-

crease when people experience property dam-

age (e.g., deer-vehicle collisions, crop depre-

dation) or the competition it creates for their

livelihood (e.g., wildlife depredations on crops

or forage). Still others may fear wildlife as a

danger to their personal safety (e.g., hazards

from bears, wolves, cougars, or coyotes). An-

other component leading to negative opinions

toward wildlife and trustees is opportunity

for participation (or lack thereof) in wildlife

management decisions. When those decisions

are viewed as being made mostly by agencies

in consultation with limited constituents (e.g.,

farmers and hunters), the remainder of the

stakeholders (usually a majority) may feel disen-

franchised. If the beneciaries of the trust cease

to value the trust assets, the trust becomes

vulnerable to those who wish to take it from

access to public lands. “Gateway properties”

that occur at the boundaries of public lands can

legally preclude access to public lands. In some

cases these private properties may entirely sur-

round public lands. Checkerboard land patterns

of alternating sections (square miles) of public

and private lands may legally limit access to

very large expanses of public land. Public access

agreements to these areas, negotiated between

the private landowner and state or federal sh

and wildlife agencies, are often the most effective

means to provide public access to wildlife occur-

ring on these lands. Concern by private landown-

ers for mistreatment of their private lands by the

public and the cost associated with acceptable

access agreements may provide barriers to public

access that are often unsolvable. Private owner-

ship patterns that reduce or eliminate reasonable

access to public lands may also render wildlife

inaccessible to a majority of people.

In several states, guides and outtters are

increasingly using bait to lure big game animals

from public land (e.g., national wildlife refuges,

national grasslands, national parks, and state

wildlife management areas) to private lands

managed for fee hunting. This practice redis-

tributes or stockpiles public wildlife to areas

that are not open to public hunting or inacces-

sible to hunters not willing to pay to hunt on

private land. In an impact similar to fencing,

these actions jeopardize the democracy of hunt-

ing, a central tenet to the Model (for a review

of these issues see Dunkley and Cattet 2003;

Ermer et al. 2005).

Public Indifference

The strength of the PTD is the value that the

public assigns to the trust’s assets. If the public

grows indifferent to wildlife, or worse, adopts

a negative perspective, the Doctrine will have

greatly diminished value. Historically, this has

tended to occur in situations where wildlife

resources were owned by an aristocracy and

public access was prohibited (Manning 1993).

In this context, where the general public had

no ownership of wildlife or a right to make

use of it, citizens were indifferent to its protec-

tion. In extreme cases they coveted wildlife as

Credit: Eric Nuse/Vermont Fish and Wildlife Department

For these hunters in Vermont, and for many outdoor

enthusiasts, a successful hunt is one way to feel a sense of

value about wildlife and other public trust resources.

The Public Trust Doctrine: Implications for Wildlife Management and Conservation in the United States and Canada 19

them. Indifference by the public for their wild-

life resources makes the trust’s assets valueless,

eliminating the need for trusteeship. Therefore,

the trustee has an important role in ensuring

that the beneciaries’ interest in the trust’s as-

sets is maintained.

Lack of Understanding of Natural Systems

Dissociation of people from nature has been

identied as a growing trend with potentially

profound implications for how future genera-

tions of North Americans may value wildlife

(Louv 2008; Shepard 1982). For example, the

estimated number of “avid wildlife observers”

declined 16 percent between 1991 and 2006

(11,927,000 vs. 9,970,000 avid participants,

respectively) and they are growing older (US-

FWS 2009). Similarly, the number of “wildlife

watchers” also declined over this same period,

dropping from 76,111,000 in 1991 to 71,132,000

in 2006, a 7 percent decline.

The extent to which these trends may miti-

gate the growing dissociation from nature is

unknown. We know little about the attitudes,

values, and knowledge of wildlife-watchers

(avid or casual), or to what extent they are

aware of their rights under the public trust and

whether trustee actions fulll their interests.

Of potential risk is a waning of interest in and

awareness of local populations of wildlife to the

point where advocacy for their conservation and

protection of their habitats is minimal. Partici-

pation in consumptive activities may continue

to decline, and opposition to those activities

may increase, threatening the primary funding

base for management of all trust wildlife, not

just game species (Organ and Fritzell 2000).

In addition to threats to funding, foundational

elements of the public trust could be threatened

with increasing social antipathy toward con-

sumptive uses of wildlife. Sax (1970) stressed

that a fundamental responsibility of trustees is

to maintain trust resources for particular uses,

including traditional uses and natural uses

peculiar to a resource. Harvest (i.e., angling,

hunting, trapping) has been suggested as an

example of a traditional and natural use (Organ

and Batcheller 2009).

Interagency Disputes over Jurisdiction

Conicting missions and values between

different state agencies may complicate the

conservation and management of wildlife, and

consequently threaten the fulllment of public

trust obligations. Legislative mandates that

transfer a portion of wildlife management re-

sponsibilities (e.g., predator and other wildlife

conict management, game and fur farming,

wildlife disease management ,and human

health protection) from state/provincial wild-

life agencies to the state/provincial/federal

agricultural, health or other departments or

municipal governments may threaten the PTD

depending on how these agencies manage the

public trust resources. For example, predators

managed solely by a state agricultural agency

to reduce damage to livestock may not have

the necessary conservation protections af-

forded with management by a sh and wildlife

agency charged with providing conservation

benets to a broad array of stakeholders.

In 1996, Colorado enacted a law dening

“depredating animal” and giving the Colorado

Department of Agriculture “exclusive jurisdic-

tion over the control of depredating animals,”

including game species, for the express purpose

of reducing economic losses to agriculture.

However, under existing statutes, the Colo-

rado Division continues to be liable for damage

claims resulting from damage caused by wild-

life. Moreover, an agricultural agency may not

value scientically-based management of these

resources if the sole focus is on the protection of

agricultural interests. In situations where cer-

tain wildlife management responsibilities have

been fully or partially legislatively re-assigned,

the resulting management may not be in the

best interest of the beneciaries, or may advan-

tage a particular segment to the detriment of

the greater public trust. In such situations, the

Doctrine may be compromised.

Animal Rights

Animal rights is a philosophical movement,

with specic views on the relationship of hu-

mans to other forms of animal life. A basic tenet

20 The Wildlife Society Technical Review 10–01 September 2010

public clearly and completely delegated to

one or more governmental agencies, or to an

individual within an agency, with the legal

authority to manage sh and wildlife in the

jurisdiction for the benet of the public?

4. A mission and purpose of the trustees

that serves the interest of the ben-

eciaries. The mission and purpose of

the agency must serve the interests of all of

the beneciaries. The trustee cannot man-

age trust assets in an inequitable manner

nor can it gift assets for private benet. For

example, if a public asset such as predators

were assigned to a state or provincial agency

as trustee, and the agency’s role is described

as managing predator populations in a self-

sustaining manner for the benet of future

generations, the purpose of the PTD would

be served. On the contrary, the purpose of

the PTD would not be served if the purpose of

the agency is described solely as preventing

economic impact to agricultural producers.

5. Accountability for the trustees’ ac-

tions, decisions, and policies. There

should be a clear mechanism to evaluate

the performance of trustees, and for public

beneciaries to hold them accountable for

their actions. The actions of the trustees are

of animal rights philosophy is that animals,

including wildlife, are sentient and therefore

should not be viewed as property. According to

Gary L. Francione (Francione 1996), “…animal

rights theory is not “utopian”; it contains a na-

scent blueprint for the incremental eradication

of the property status of animals.” Public trust

law is based on the premise that certain things

are public property (Sax 1970). If the animal

rights philosophy was to become law (whether

adopted by legislative bodies or by referenda),

wildlife would no longer be property, and would

therefore fall out of the public trust.

CURRENT STATUS OF THE PUBLIC TRUST

DOCTRINE IN STATE AND PROVINCIAL LAW

An analysis of each jurisdiction’s statutory and

constitutional law provides a measure of the

strength of the PTD in the U.S. and Canada. The

following parameters were evaluated to provide

an assessment of the status of the PTD in North

America:

1. Inclusive denition of sh and wild-

life. Does the jurisdiction have a clear and

inclusive denition of sh and wildlife that

provides for adequate identication and pro-

tection of the trust resources? Inclusiveness

means that the denition should address the

status of vertebrates and invertebrates living

in a wild state and in captivity, and address

all life stages of those species.

2. Clear statement of public ownership

of wildlife. Is it clear that sh and wildlife

are owned by the public or by the people

of the state or province, or in some cases

by the state or province itself? This state-

ment of ownership should include all sh

and wildlife in the jurisdiction; resident or

migratory, native or introduced. Ideally this

statement will make clear that the govern-

ments manage sh and wildlife in trust for

the people.

3. A clear delegation of management

responsibility to the trustees for the

beneciaries. Is the responsibility of the

trustees to manage sh and wildlife for the

rules ANd regulATioNs NoT ANAlyzed

Our review of the status of the Public Trust

Doctrine in the United States relied on a re-

view of state constitutions, statutory law, and

case laws. Administrative rules and regula-

tions were not included. Rules and regula-

tions are promulgated by agencies, under

statutory authority. While they have the force

of law, rules and regulations are more likely

to change frequently and thus are not an

ideal vehicle for jurisdictions to use to codify

the PTD. Because of this, and also due to the

chance that any review of rules and regula-

tions would be outdated before it could be

published, our review of the current status of

the PTD of the states and provinces did not

include administrative rules and regulations.

The Public Trust Doctrine: Implications for Wildlife Management and Conservation in the United States and Canada 21

U.S. Although each province has adopted an in-

clusive denition of wildlife, not every province

has created a clear statement of public owner-

ship of wildlife. Seven of the provinces do have

language that vests some type of public owner-

ship over wildlife. As described in the following

summary of PTD case law, Canada has almost

no case law dealing with the PTD, therefore

the provinces were not included in the case law

analysis.

Findings: Public Trust Doctrine

and Wildlife Legal Summary

In the U.S., the PTD in its traditional form is

rmly rooted in statutory and case law. The

PTD has traditionally been used to protect the

public’s right to use navigable waterways and

to protect each jurisdiction’s sovereign owner-

ship of those waterways to hold in trust for the

public’s use. In recent times, a movement has

taken place in both statutory and case law to ex-

tend the PTD to other natural resources. Some

of these resources include beaches, parks, and

transparent and clearly described, thereby

facilitating evaluation and accounting.

Examples of accountability mechanisms in-

clude requirements for public participation

and the full disclosure of accomplishments

and failures.

Each jurisdiction’s wildlife legislation and its

constitutional provisions were examined with

these ve factors in mind to determine whether

or not wildlife had been recognized as a public

trust resource in the state or province. Each

state and province’s legislative and constitu-

tional provisions were evaluated using the ve

criteria (see Table 1).

Jurisdictional case laws and their inclusion

of wildlife are another component of determin-

ing the strength of the PTD. In addition to the

summary of case law that follows, a table was

developed to better distill how wildlife, and the

PTD in general, have been treated in each state

(see Table 2).

In Canada the PTD has not taken root in

statutory or case law on the same level as in the

Table 1: Number of States or Provinces meeting Public Trust Doctrine criteria through constitutional

or statutory language (entities where criteria are addressed in both documents are counted twice).

States Provinces

Constitution Statue Not

Found

Constitution Statue Not

Found

Criteria + - + -+ -+ -

Inclusive deﬁnition of wildlife 0038 10 200130 0

Clear statement of public ownership of

wildlife

1038 31000706

Clear delegation of management

responsibility

2048 000013 00

Mission and purpose appropriate to PTD 2044 4000706

Accountability of trustees 2138 11 000130 0

Criteria Yes No Not Treated

PTD Recognized as valid legal doctrine 41 1 8

PTD discussed in relation to wildlife 15 3 32

PTD extended to resources other than navigable waterways 21 6 23

Court grants standing under PTD 4 6 40

Table 2: Number of States addressing the Public Trust Doctrine in State case law.

22 The Wildlife Society Technical Review 10–01 September 2010

Kentucky has broad language, both in protec-

tion of wildlife and in furtherance of the public

interest. The statute provides that state policy

is “to protect and conserve the wildlife of the

Commonwealth to insure a permanent and con-

tinued supply of the wildlife resources of this

state for the purpose of furnishing sport and

recreation for the present and future residents

of this state” (Key. Rev. Stat. §150.015). This

language serves the dual purpose of protect-

ing wildlife while coincidentally insuring that

the public will still enjoy the right to engage in

activities such as hunting and shing.

As of early 2010, 33 states have adopted

the Wildlife Violator Compact, which includes

in Sec. 11: “The participating states nd that

wildlife resources are managed in trust by

the respective states for the benet of all their

residents and visitors.” This language implies

the existence of the PTD in those states, which

is important because many states that did not

previously have strong implicit or explicit trust

language in their statutes have adopted the

Compact. (Eight other states are currently con-

sidering adoption of the Compact.)

Clear “ownership” language pertaining to

wildlife is important to rmly establish wildlife

as a public trust resource. Forty-one states cur-

rently claim some type of ownership of their

wildlife. The language varies between claim-

ing ownership by the state and ownership by

the people of the state. While the distinction

may seem superuous because of our states’

republican form of government, a statute that

places ownership in the “people” is a stronger

indication that wildlife is a public trust re-

source. An example is North Carolina: “The

marine and estuarine and wildlife resources of

the State belong to the people of the State as a

whole…The enjoyment of the wildlife resources

of the State belongs to all of the people of the

State” (N.C. Gen. Stat. §113-133.1). This type of

language better imbues the purpose of con-

rming wildlife to be a public trust resource

rather than language that merely states, for

example, that: “All wildlife found in this state

is the property of the state.” Language clearly

placing ownership of wildlife in the people

residing in a state is important because of the

wildlife habitat areas apart from wildlife itself.

Case law has been slow to recognize exten-

sion of the Doctrine, whereas statutory law has

quickly evolved to place more natural resources

within the realm of PTD protection.

Few states have case law recognizing wild-

life as a public trust resource. Many states and

provinces have already adopted statutes that

either explicitly or implicitly confer upon wild-

life status as a public trust resource. Indeed,

bringing wildlife into the PTD through statu-

tory measures appears to be the best way to

accomplish the goal of extending the Doctrine

in this area.

State Statutes

State statutory law is the main legal vehicle

for giving public trust status to wildlife. In

many states, the statutory provisions do this

in an indirect manner through implicit trust

language. For example, New Hampshire’s

statute states that: “It shall be the policy of

the state to maintain and manage [wildlife]

resources for future generations” (N.H. Rev.

Stat. §212-B:2). While not a direct statement

identifying wildlife as a trust resource, the

language denitely has the aim of preserv-

ing wildlife for the public interest. Similarly,

North Carolina’s statute reads: “The enjoy-

ment of the wildlife resources of the State

belongs to all of the people of the state” (N.C.

Gen. Stat. §113-133.1).

Georgia has strong statutory language, ex-

plicitly granting wildlife public trust resource

status. The statute provides that: “Wildlife is

held in trust by the state for the benet of its

citizens and shall not be reduced to private

ownership except as specically provided

for in this title” (Ga. Code §27-1-3). Ohio and

West Virginia have similar statutes, with Ohio

holding title to all wild animals “in trust for

the benet of all the people” (Ohio Rev. Code

§1531.02), and West Virginia holding title to all

wild animals “as trustee for the people” (W. Va.

Code §20-2-3). These three states provide clear

statutory language that identies wildlife as a

public trust resource.

The Public Trust Doctrine: Implications for Wildlife Management and Conservation in the United States and Canada 23

trust resource is important in states where it is

not statutorily recognized, as was the case in

Illinois before it adopted the Wildlife Violator

Compact. When the PTD is codied through the

state’s statutes, however, common law recogni-

tion becomes less important. Once adopted by

statute in a state, the only course for the state’s

courts to take would be to overturn the stat-

ute if found invalid or to modify its meaning

through judicial interpretation.

State Constitutions

Inclusion in a state’s constitution provides a

strong foundation for the PTD. However, few

states have constitutional provisions clearly

articulating the PTD.

Alaska’s Constitution, Article 8, §3, states

that: “Wherever occurring in their natural state,

sh, wildlife, and waters are reserved to the

people for common use.” This was held to mean

that the state “intended to engraft certain trust

principles guaranteeing access to the sh, wild-

life, and water resources of the state,” according

to the Alaska Supreme Court in Owsichek v.

State of Alaska, Guide and Licensing Control

Board (1988). Louisiana’s Constitution sets out

the requirement that the state is “to protect,

need to establish standing to enforce the PTD

in individuals, rather than state governmental

agencies.

Case Law

Nearly every state recognizes some form of the

PTD in its common (case) law, however few states

specically address wildlife in case law. Typi-

cally, it is in the traditional form of state sover-

eignty over the navigable waterways of the state.

Any extension of the Doctrine appears to have

encompassed a limited number of resources such

as beach access and parkland. Most cases that

discuss the PTD relate it to the right of commerce

and shing in the state’s navigable waterways.

Few states have case law that explicitly

discusses the PTD in relation to wildlife, and

even fewer discuss it in terms that may extend

the PTD to wildlife itself. In Alaska, the case of

Owsichek v. State of Alaska, Guide and Licens-

ing Control Board (1988) spelled out perhaps

the clearest recognition of wildlife as a trust

resource by relying on the state’s Constitution.

The court in Owsichek held that a common

use clause in the Constitution of Alaska was

intended to engraft certain trust principles,

guaranteeing public access to the sh, wildlife,

and water resources of the state.

In Illinois, Wade v. Kramer (1984) made it

clear that it was “undoubtedly true that the State

has a type of guardianship or trust over wildlife

in the state.” This ruling came well before Illi-

nois had adopted the Wildlife Violator Compact.

Because the ruling came before the Compact was

adopted, it is clear that common law in Illinois

fully recognizes wildlife as a trust resource.

A recent case from California involving the

impacts of wind farms on bird mortality (Cen-

ter for Biological Diversity v. FPL Group, Inc.)

included an explanation of how wildlife falls

under the umbrella of the Public Trust Doctrine

by citing a California Supreme Court case stat-

ing that public trust duties for birds and wildlife

are primarily derived from statute (Environ-

mental Protection and Information Center v.

California Dept. of Forestry & Fire Protection).

Common law recognition of wildlife as a public

Policymakers at the California State Legislature and at

other state legisatures around the nation can pass laws

regulating sustainable use of natural resources and other

key elements of the Public Trust Doctrine.

broad-based statutory framework that could be

put in place throughout the states and provinces

would have to address some key issues.

First, three conditions must be met for the

PTD to be an effective tool: (1) it must contain

some concept of a legal right in the general

public; (2) it must be enforceable against the

trustee (government); and (3) it must be capable

of interpretation consistent with contemporary

concerns (Smith 1980).

Second, any model statutory language must

be carefully drafted to avoid the PTD being used

negatively to eliminate the traditional recre-

ational/sporting benet of wildlife. As noted

earlier, traditional and natural uses peculiar to a

resource must be provided for as part of the pub-

lic trust (Sax 1970), and hunting has been identi-

ed as such a use (Organ and Batcheller 2009).

Additionally, funding for management of wildlife

as a trust resource comes primarily from con-

sumptive user fees. Keeping these issues in mind

while using language from existing statutes, a

successful model statutory framework could be

developed to extend the PTD to wildlife as a pub-

lic trust resource in each state and province.

THE BENEFITS OF STRENGTHENING

THE PUBLIC TRUST DOCTRINE

The PTD is a long-time cornerstone of the most

successful model of wildlife management and

it has fostered the public’s interest in conserv-

ing wildlife resources in North America. With

few exceptions, however, it rarely is supported

by state or provincial constitutional law, and

inconsistently by statute. This presents a degree

of insecurity to its consistent application, now

and in the future.

The PTD is largely supported in case law but

with less clarity than statutory law. Case law

often is less precise and subject to greater, often

inconsistent, interpretation. Courts of equal

authority, representing different jurisdictions,

may arrive at opposite conclusions.

Statutory and constitutional law is made

by elected representatives of the people (e.g.,

conserve, and replenish all natural resources,

including the wildlife and sh of the state, for

the benet of its people.”

A constitutional provision is a legally robust

means to establish wildlife as a public trust

resource, though changing a state constitution

is obviously a long and difcult process. Also,

amending a state constitution is not ironclad as

problems of enforceability and standing could

arise if challenged in court.

Canada

Just over half of the provinces and territo-

ries have incorporated language on the public

ownership of wildlife in their statutes. None-

theless, this is an indication of the intent to

treat wildlife as a public trust resource. Case

law is at this point non-existent as to any

explicit mention of the “public trust.” The case

of Green v. Ontario (1973) purports to apply

a statutory form of the PTD, but it is nothing

like the common law PTD that has developed

in the U.S. Certainly there are no cases that

compel provinces or territories to hold certain

natural resources in “trust” for the people.

The rights of the citizens in Canada that could

be analogous to the rights enjoyed in the U.S.

under the PTD are the right to navigate and

sh. However, the Canadian Parliament re-

tains the primary authority to modify these

rights.

Need for Stronger Statutes

The PTD is both a common law principle,

primarily associated with waters and their

resources (e.g., commercially valuable sh

species), and one based on statutes dening

public trust duties and responsibilities. In the

United States, the PTD in its traditional form

is rmly established in both state common law

and statutory law. However, the extension of the

PTD to specically cover wildlife is not well-

established. In Canada, the legal underpinnings

of the PTD, especially as it applies to wildlife,

are even weaker, resting mainly on provincial

codications of wildlife ownership. A model

The Wildlife Society Technical Review 10–01 September 2010

The Public Trust Doctrine: Implications for Wildlife Management and Conservation in the United States and Canada 25

The benets of strengthening the PTD for the

benet of wildlife resources are clear. Codify-

ing the Doctrine in statute, or amending state

constitutions to include it may secure its future,

clarify its purpose, and ensure that its prin-

ciples are more consistently applied and less

subject to interpretation.

RECOMMENDATIONS

The following recommendations are intended

to help trustees of the public’s wildlife en-

sure that the PTD extends to wildlife and

the public’s access to wildlife in their state or

province and continues to do so in the future.

They also serve to inform key stakeholders

and other beneciaries of key strategies for

strengthening the PTD.

Statutory Changes

State and provincial wildlife agencies should

review their constitutional or statutory au-

thorities that address the principles of the PTD,

and where absent or inadequate, strengthen

their authority with new legislation. Although

amending the state or provincial constitu-

tion to include the Doctrine would provide the

strongest legal protection, we recognized that

changing a constitution is a long and difcult

process. Therefore, we recommend that states

and provinces enshrine the PTD as it applies to

wildlife in state/provincial law. In particular,

those states that have adopted the Wildlife Vio-

lator Compact, which implicitly recognizes the

PTD, should move to formally codify the PTD in

their states.

We offer language containing several key ele-

ments to provide guidance to states and prov-

inces seeking to protect the PTD.

Model Statutory language:

1. The state declares that wildlife is held

in trust by the state for the benet of its

citizens:

a) to protect and conserve the wildlife of

this state or province;

Congress, Parliament, and Legislatures) or by

the direct will of the people (i.e., ballot initiative

or referendum), but case law, by design, lacks a

public participation component.

As case law regarding the PTD continues to

evolve and its scope of application continues

to expand, new interpretations will be cre-

ated that may revise current understanding,

making current “protections” afforded by the

Doctrine potentially uncertain in the future.

Managing diverse public assets may cause

conicts for the trustees and the beneciaries.

For example, property protection through

ood control may cause conict with envi-

ronmental quality or the welfare of sh and

wildlife. In such situations, trustees may have

to assume the authority to decide preference

of one over another. These decisions likely are

to be challenged through litigation. Courts

eventually may redene the Doctrine by as-

signing priority of trust assets for use by com-

peting interests. Current uses may be viewed

by some as privileges rather than rights. In

turn, privileges may be viewed as increasingly

unacceptable uses of public trust assets as

has emerged in the case of commercial shing

versus the survival of sh stocks (Henquinet

and Dobson 2006).

Credit: New York State Archives

Surrounded by their harvest of rabbit and deer, two

hunters pose for the New York State Conservation Com-

mission, circa 1920. A strong Public Trust Doctrine can

help ensure that public agencies remain the stewards of

natural resources.

Outreach and Education

Increased awareness of the PTD and its impor-

tance among the public, and wildlife profes-

sionals and wildlife students in particular, can

be facilitated through fostering educational

opportunities. The Western Association of Fish

and Wildlife Agencies is developing an outreach

plan to explain the PTD and the Model to a

target audience including high school students

(T. Gray, 2009, pers. comm., Arizona Game and

Fish Department). When completed, piloted, and

nalized, this curriculum will also be available

for adoption by other state agencies. Additionally,

the Conservation Leaders for Tomorrow program

(

www.clft.org) features a lesson on the North

American Model, including the PTD. The Wildlife

Society and state agencies should further pro-

mote outreach efforts on the Model and the PTD.

CONCLUSIONS

The Public Trust Doctrine is a crucial element

of the Model. Geist and Organ (2004) identi-

ed emerging threats that challenge the PTD in

North America, thereby jeopardizing the legal

underpinnings for wildlife conservation. In

particular, a trend towards the commercializa-

tion and privatization of wildlife challenges the

notion of trust species held in custodianship by

competent authorities (both state, federal, and

provincial agencies) for broad public benets. A

corollary to this threat is the loss of public ac-

cess to wildlife via highly controlled land access

systems managed by private individuals.

Central to protecting the PTD is assuring

that legal institutions are in place within each

competent authority to clearly establish the

PTD’s applicability to wildlife. While a number

of jurisdictions address the notion of public

ownership of wildlife (and the associated trust

responsibilities of those jurisdictions), the need

for a broad-based statutory framework was con-

rmed as needed to unequivocally bring wildlife

conservation programs within the PTD frame-

work. To this end, model statutory authority

is offered as a template to strengthen the PTD

throughout North America.

b) to ensure the permanent and contin-

ued abundance of the wildlife resources

of this state or province;

c) to provide for the sustainable use and

enjoyment of wildlife for present and future

residents of this state or province; and

d) to ensure that wildlife resources will

not be reduced to private ownership

except as specically provided for in law.

2. Individuals have an equitable right of ac-

cess to wildlife as a public trust resource:

a) to ensure a permanent and continued

abundance of wildlife resources of this

state or province;

b) to provide for the sustainable use and

enjoyment of wildlife for present and future

residents of this state or province; and

c) to ensure that wildlife resources will

not be reduced to private ownership,

except as specically provided in law.

This language makes it clear that wildlife is

held in trust for the people of the state or prov-

ince, will not be squandered or mismanaged by

the state or province as trustee, and allows for

balance between conservation and recreation.

The language also prohibits government from

transferring wildlife resources to private owner-

ship, except as provided by law. The “except as

specically provided for in this title” language

gives jurisdictions some leeway to provide for

preserve and management areas.

Administrative Law (Rules and Regulations)

While administrative rules were not summa-

rized and included in this review, these rules

and regulations promulgated by agencies or

regulatory boards have the force of law. These

rules (along with administrative policy and

standard operating procedures) are an impor-

tant instrument to further codify and provide

consistent and frequent reinforcement of public

trust Doctrine tenets related to wildlife resourc-

es. These rules (and challenges to them) also

represent a venue by which future case law will

be established, potentially strengthening the

Public Trust Doctrine.

The Wildlife Society Technical Review 10–01 September 2010

The Public Trust Doctrine: Implications for Wildlife Management and Conservation in the United States and Canada 27

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The Public Trust Doctrine

Implications for Wildlife Management and

Conservation in the United States and Canada

Technical Review 10-01

September 2010

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