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Public Trust Doctrine: For the Good of the People Ed Owens, Chair, Citizens for Responsible Wildlife Management, PO Box 14245, Tumwater, WA 98511-4245, July 2001 |
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Regardless
of how we trace its ancestry the Public Trust Doctrine - the
principle of common law directing who owns and manages natural
resources - is deeply rooted in our culture and history.
Some historians have argued that hunting of game, fishing and
wildlife management responsibility components of the doctrine have
their origins in English common law dating back to the Saxon
invasion of England in about 450 AD and maintained after the Norman
Conquest in 1066.[i]
It is clearly evident that elements of the doctrine related
to fish, shorelines and water have come to us from codified dictates
enacted by the Roman Emperor Justinian in about 530 A.D.[ii]
The
English monarchy added strength and recognition to the public trust
doctrine with the signing of the Magna Carta in 1215.
Changes in English common law enacted in 1641, and additional
modifications enacted by Colonial Ordinance in 1647,[iii]
reinforced the public trust doctrine concept that government has an
affirmative duty to administer, protect, manage and conserve fish
and wildlife; hence, government cannot relinquish its obligations to
a popular vote to establish administrative management, protection,
and conservation practices for renewable wildlife and marine
resources. In other
words, ballot measures cannot supersede governmental (sovereign)
rule. With a history spanning upwards of fifteen centuries, or potentially more, it would be impossible to cite every publication, historical record or litigation associated with the public trust doctrine. Fortunately, such a bibliography is not necessary to illustrate the constantly evolving history of the doctrine as it applies to wildlife management responsibilities. As it seems to be the case with many important issues in America, litigation, and the occasional Act of Congress, have played roles in defining the responsibilities of government under the public trust doctrine. A profile of some of the Acts of Congress and Supreme Court rulings that have defined the public trust doctrine include:
For
the first hundred, or so, years of America’s history public trust
doctrine litigation and legislation generally tended to focus on
providing for the public use of waterways for commerce, navigation,
and fisheries; a consequence of the mandates established by Emperor
Justinian. Court rulings at both the federal and state levels - and
legislation including the relatively recent federal Endangered
Species, Marine Mammal and
Environmental Protection Acts - over the last 150 years, or so,
added hunting. In
recent years courts have added swimming, recreational boating, and
preservation of lands in their natural state in order to protect
scenic and wildlife habitat values as codified elements of the
public trust doctrine. For
example, A 1983 California Supreme Court ruling held that the State
has an "affirmative duty to take the public trust into
account" in making decisions affecting public trust resources,
and also the duty of continuing supervision over these resources
which allows and may require modification of such decisions.[ix]
More recently, the definition of the doctrine has been
further refined by the California courts as providing the public the
right to use water resources for: navigation, fisheries, commerce,
environmental preservation and recreation; as ecological units for
scientific study; as open space; as environments which provide food
and habitats for birds and marine life; and as environments which
favorably affect the scenery and climate of the area."[x] A
Court in New York State declared that, "[T]he entire ecological
system supporting the waterways is an integral part of them and must
necessarily be included within the purview of the trust." The
Court was calling for protective measures against actions which
would degrade the trust resource, the waterway.[xi]
Another court in the State of Iowa noted that the Public
Trust Doctrine has, "emerged from the watery depths [if
navigable waters] to embrace the dry sand area of a beach, rural
parklands, a historic battlefield, wildlife, archeological remains,
and even a downtown area."[xii] The
New York State Supreme Court, Suffolk County upheld the Long Island
Pine Barrens Act ("Act") against a takings challenge by
highlighting the public trust doctrine. The decision was handed down
on April 22, 1998, Earth Day. Briefly stated, the Act is a
comprehensive planning law that established in a 100,000 acre area
of Long Island a 50,000 acre protected preserve surrounded by a
50,000 acre managed growth area. Justice William L. Underwood's
decision includes an analysis of the common law and he concludes
that, "Contrary to popular misconception, the Common Law did
speak on the subject of environmental regulation."[xiii] Each
of these cases, and others just like them, point to the inescapable
conclusion that management of our natural resources is the
administrative responsibility of government (the sovereign) and that
government cannot turn that responsibility over to someone else.
In recent years, in the twenty-four states that permit ballot
initiatives, the animal rights movement has ignored management of
our natural resources on the premise of science and law and bought
their way to the ballot with measures seeking to establish their
political agenda by changing how natural resources are administered.
As a consequence of this activity there are now a number of
states where public trust doctrine lawsuits seek to overturn these
politically motivated initiatives.[xiv] [i]
Historical records for the Saxon and Norman periods in English
history supporting the concept that hunting of game and wildlife
management responsibilities are components of the public trust
doctrine are limited. Significant documentation in support of the public trust
doctrine does not make itself clearly evident in English law
until 1215 with the signing of the Magna Carta.
While interpretations vary, the premise that Saxon and
Norman kings “owned” all that they ruled is the basis most
commonly cited to justify the premise that hunting of game and
wildlife management responsibilities are elements of the
historical record associated with the public trust doctrine. [ii]
Slade, David C. Esq. “The Public Trust Doctrine:
A Gift From A Roman Emperor,”
12211 Roundtree Lane, Bowie, Maryland, 20715, phone: (301)
464-3900. (Note:
Some sources attribute the date to 533 A.D.) [iii]
Ibid. [iv]
Illinois Central Railroad v. Illinois, 146 U.S. 387
(1892). [v]
Greer v. Connecticut, 161 U.S. 519 (1896). [vi]
Lacey Act of 1900 -- 16 USC §§701, 3371-3378 and 18 USC §42. [vii]
Migratory Bird Treaty Act of 1918, 39 Stat. 1702, T.S.
No. 628; 16 USC §703 and Missouri v. Holland, 252 U.S.
416 (1920). [viii]
Kleppe v. New Mexico, 426 U.S. 529 (1976) regarding the
Wild Free-Roaming Horses and Burros Act. 16 USC §1331. [ix]
National Audubon Society v. Superior Court, 33 C3rd 419. [x]
__________, California Public Trust (Excerpt from California's
Rivers, A Public Trust Report - Executive Summary, prepared
for the California State Lands Commission in 1993, page vi.). [xi] Bray,
Paul M., “An Introduction to the Public Trust Doctrine,”
Government Law Center, Albany Law School, 80 New Scotland Ave.,
Albany, New York 12208. [xii] Ibid. [xiii] W.J.F Realty Corporation and Reed Rubin v. the State of New York [xiv] Boynton, Stephen S., Washington, DC Counsel, National Trappers Association, “Public Trust Doctrine Legal Cases Challenge Wildlife Ballot Initiatives That Ban Use of Leghold Traps,” National Trappers Association, P.O. Box 550, New Martinsville, WV 26155.
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