Public Trust Doctrine

Orion the Hunters' Institute Position Statement

June, 2010

2,000 years of evolving law holds that live wild animals can be owned by no individual, but are owned collectively by all and held in trust by the government for all citizens. When the we defeated the English during the revolutionary war, the power of the King as trustee of wildlife was transferred to the new State and Federal governments. In other words, the King's deer became the people's game.  Since that time a series of Supreme Court rulings have firmly established the public trust as it relates to wildlife (Martin v Waddell, Geer v Connecticut, and Illinois Central R.R. v. Illinois).

public trust doctrineThe responsibility of a trustee is one of the highest under the law. The trustee's fiduciary duty is to look out for the best interests of the trust resource and for the beneficiaries both now and into the future. In Illinois Central the Court wrote that the "state's trustee relationship to the resource did not just allow, but mandated, that the state take action to protect the public trust resources, and disallowed any abdication of that duty." (Horner, July 1999)

The Public Trust Doctrine of wildlife is a bedrock concept of the North American Model of Wildlife Conservation. The implementation of the principles articulated in this Model is why we enjoy the greatest diversity, quality, and quantity of game animals and other wildlife in the world.

According to attorney James H. Goetz, in a memorandum on the public trust doctrine prepared in 2004 for Orion-The Hunters' Institute, for any public trust to be alienated, the following principles apply:

  1. Any grant of public trust resources must be made by explicit (usually legislative) authorization.
  2. The process must be transparent - that is, open and visible to the public, with full right of public to comment.
  3. The judiciary has the prerogative to set aside acts of the legislature, which convey the public's interest in public trust resources.
  4. The standard to be applied by the judiciary is strict scrutiny - that is, the Courts will take a "close look" at any conveyance of public trust resources to make sure that the impairment is not substantial and that its purposes are consistent with the public trust.
  5. Conveyances of public trust resources are subject to retroactive nullification - that is, private entities which may be granted interests in public trust resources take "subject to the public trust," meaning that subsequent legislative acts (or judicial acts) may undo the grant.

Goetz goes on to say:

In my opinion each of these strictures is important. Taken cumulatively, these public trust principles constitute a powerful body of law which can be quite useful in protecting the rights of the public, as beneficiaries, to public trust resources.

Orion urges concerned citizens, conservationists and organizations to come together to defend the public's right of collective ownership of our wild animals, force our government to live up to its fiduciary duty as trustee.

The greatest conservation president our country ever had was Theodore Roosevelt. In 1905 he wrote:

The professional market hunter who kills game for the hide or for the feathers or for the meat or to sell antlers and other trophies; market men who put game in cold storage; and the rich people, who are content to buy what they have not the skill to get by their own exertions - these are the men who are the real enemies of game.

References Cited:

-Geist, Valerius, Shane P Mahoney and John F. Organ. 2001, Why Hunting has Defined The North American Model of Wildlife Conservation. Transactions of the 66th North American Wildlife and Natural Resources Conference.
-Goetz, James H. Esquire. 2004, Potential Utility of the Public Trust Doctrine in Regulation of Wildlife. Unpublished memorandum.
-Horner, S.M. 2000. Embryo, not fossil: Breathing life into the public trust in wildlife. Univ. of Wyoming College of Law, Land and Water Law Review. 35 (1):1-66.