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The Public Trust in Wildlife Conservation
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by Paul Wilson | 2005

The keystone of the North American Model of Wildlife Conservation is the principle that wildlife are owned by no one, but are to be held “in trust” for the benefit of all the people by the government.

The Public Trust in Wildlife Conservation

The keystone of the North American Model of Wildlife Conservation is the principle that wildlife are owned by no one, but are to be held “in trust” for the benefit of all the people by the government.

The Public Trust Doctrine” as it concerns wildlife conservation in the United States is based on two Supreme Court decisions in the mid and late 1800’s.  However, the rulings on these cases cited authority which stemmed from old established law such as Roman Civil Law, French Civil Law, Napoleonic Code, and English Common Law (Horner, 2001).

For example, after the Norman conquest of England (1066 AD) ownership of wild game was vested in the English King is his individual capacity as sovereign.  When the barons at Runnymede exacted from King John the Magna Charta (1215), a change took place whereas the King owns all the wild game in his sovereign capacity in “sacred trust” for the people.  The principle forms a part of the common or unwritten law (Wild game – Its legal status, 1931).  The colonialists that settled North America brought with them and followed the English Common Law.

The first U.S. Supreme Court case concerning the relationships between government and citizen as the law pertains to wildlife came before the court in 1842.  In the case of Martin v. Waddell, a riparian landowner on New Jersey’s Raritan River claimed to own both the riparian areas and the land beneath the river, tracing his title to a grant from King Charles to the Duke of York in 1664 which purported to convey “all the lands, islands, soils, rivers, harbors, mines, minerals, quarries, woods, marshes, waters, lakes, fishings, hawkings, and fowlings.”

In the view of Chief Justice Roger Taney, the legal question presented was more than the interpretation of a mere deed of title.  Taney first considered “the character of the right claimed by the British Crown,” and secondly whether that character changed when the title to the lands passed from the King to the Duke, and ultimately to the plaintiff.  Taney declared that “dominion and property in navigable waters, and in the lands under them [were] held by the King as a public trust” and that it “must be regarded as settled in England against the right of the King since Magna Charta” to make a private grant of such lands and waters.  Thus, the King, by virtue of his public trust responsibilities, was without powers to abridge “the public common of piscary” (Bean and Rowland, 1997).

Taney also declared that this public trust character survived the American Revolution, in the follow statement from his decision in Martin v. Waddell:

[w]hen the people of New Jersey took possession of the reins of government, and took into their own hands the powers of sovereignty, the prerogatives and regalities which before belonged to either the crown or the parliament, became immediately and rightly  vested in the state.

Chief Justice Taney seemed to place the states in the role of successors to the parliament and the crown, thus beginning the development of the doctrine of state ownership of wildlife.  Martin v. Waddell was followed by a series of cases that steadily established that the wildlife within the water or soil resources held in trust, were also subject to the trust doctrine (Horner, 2000).  It was against these developing principles of state ownership that the Supreme Court ruled in the 1896 Geer v. Connecticut case which articulated a theory of state ownership of wildlife.

The legal question which defendant Geer appealed to the high court was his conviction of moving lawfully harvested gamebirds outside the state of Connecticut which was illegal by state statute.  Justice Edward White, writing for the majority, traced the history of government control over the taking of wildlife from Greek and Roman law through the civil law of the European continent and the common law of England.  Justice White concluded that the states had the “right to control and regulate the common property in game,” which was to be exercised “as a trust for the benefit of the people.”

Using these ancient references and the cases following Martin v. Waddell, the Court emphasized the state police power and the states’ ability to regulate the taking of game, and went on to make a sweeping assessment of the transformation of the public trust principle into modern American law. Marking a monumental divergence from traditional discussions of royal prerogative, the Supreme Court stated (from Horner, 2000):

Whilst the fundamental principles upon which the common property in game rests have undergone no change, the development of free institutions has led to the recognition of the fact that the power or control lodged in the State, resulting from the common ownership, is to be exercised, like all other powers of government, as a trust for the benefit of all people, and not as a prerogative for the advantage of government, as distinct from the people, or for the benefit of private individuals as distinguished from the public.

Herein lies the heart and soul of the modern day public trust in wildlife conservation.  Although this trust relationship has its origins in ancient and feudal laws, the public trust in wildlife is distinctly American in its focus (Horner, 2000).

From the ancient and feudal laws, the American case law of the 1800’s, and many cases that have followed, the Public Trust Doctrine rests on these three principles (from Horner, 2001):

·        Wildlife can be owned by no individual but is held by the state in trust for all the people

·        As trustee, the state has no power to delegate its trust duties and no freedom to transfer trust ownership or management of assets to private concerns

·        The state has the affirmative duty to fulfill trust responsibilities – i.e. it cannot sit by idly while trust resources are depleted or wasted.

Literature Cited:

Bean, M.J. and M.J. Rowland.  1997. The Evolution of National Wildlife Law.   Third Edition. Praeger, Westport, Connecticut.  513 pp.

Horner, S.M. 2000.  Embryo, not fossil: Breathing life into the Public Trust in Wildlife. Land and Water Law Review. Univ. of Wyoming, Vol. XXXV, No. 1, pp. 23-75.

Horner, S.M. 2001.  A legal perspective on the Public Trust in Wildlife Management – Its not just a good idea.  63rd Midwest Fish and Wildlife Conference, Des Moines, Iowa.  13 pp.

Wild Game – Its Legal Status.  1931.  E.I. du Pont de Nemours & Co. Smokeless Powder Division. (cited in Aldo Leopold’s 1933 book: Game Management, published by Charles Scribners & Sons. New York.  481 pp.)

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