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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.[1]
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.[2]
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,[3]
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:
v
In 1842 the Supreme Court ruled that the Magna Carta had
settled the question of who owns fish and wildlife and that King
Charles II did not have the authority to give away the “dominion and
property” of lands in colonial America.
The court further ruled that since the American Revolution the
people held public trust responsibilities for fish and wildlife except
for rights specified in the U.S. Constitution.
v
In 1892, the Supreme Court declared that the
"Sovereign Lands" of a state are held in trust by the State
for all present and future generations, and that such land may not be
sold for development incompatible with uses covered by the Public
Trust Doctrine.[4]
v
In 1896, the Supreme Court declared that the states’
property right in game was to be exercised as a trust for the benefit
of the people of the state.[5]
Up until this ruling the 10th Amendment of the
Constitution only appeared to give states jurisdiction over wildlife.
This court case is considered by many to be the core ruling of
states’ public trust authority over wildlife but it is somewhat
controversial because it does so in terms of ownership.
v
The Lacey Act of 1900 utilized the power of Congress to
regulate interstate commerce to initiate federal involvement in
wildlife conservation by prohibiting transportation across state lines
of wildlife killed in violation of state laws.[6]
Since 1900 the Lacey Act has been amended numerous times as
federal and state government public trust authorities have been
further refined.
v
It took about seven years (1913-20), two Acts of
Congress (the Migratory Bird Act of 1913 and the Migratory Bird Treaty
Act of 1918) and two Supreme Court rulings (the first ruled the 1913
Act unconstitutional and the second upheld the 1918 Act) before the
role of Congressional Treaty Powers were sorted out as related to
migratory birds and the public trust doctrine concept applied to the
management of migratory birds.[7]
The 1918 Act and subsequent Supreme Court ruling gave the
federal government a strong basis for leading the conservation and
management of migratory birds resulting in the application of the
public trust doctrine in many treaties for the protection of migratory
birds.
v
In 1976 the Supreme Court decreed that federal authority
may be superior to that of the states in some wildlife
management situations but the extent of the authority remains unclear.[8]
This relatively undefined aspect of the ongoing public trust
doctrine debate is an area likely to draw additional consideration by
the courts over time because of the broader states rights versus
federal powers (and related issues) debates.
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.[9]
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."[10]
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 that would degrade the trust
resource, the waterway.[11]
Another court in the State of Iowa noted that the Public Trust
Doctrine has, "emerged from the watery depths [of navigable
waters] to embrace the dry sand area of a beach, rural parklands, a
historic battlefield, wildlife, archeological remains, and even a
downtown area."[12]
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."[13]
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.[14]
Wildlife management has
historically been, and continues to be, a difficult and often
contentious arena. Contrary
to the political hype of the animal rights movement there are no
“magic bullets.” To
drive wildlife management on the premise of political agenda – on
the premise of ballot box biology - when at least fifteen hundred
years of history, science, litigation and experience has demonstrated
that government (the sovereign) must make such decisions so that they
reflect the balanced needs of society and the resource is simply
wrong.
Footnotes:
[1]
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.
[2]
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.)
[3]
Ibid.
[4]
Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892).
[5]
Greer v. Connecticut, 161 U.S. 519 (1896).
[6]
Lacey Act of 1900 -- 16 USC §§701, 3371-3378 and 18 USC §42.
[7]
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).
[8]
Kleppe v. New Mexico, 426 U.S. 529 (1976) regarding the
Wild Free-Roaming Horses and Burros Act. 16 USC §1331.
[9]
National Audubon Society v. Superior Court, 33 C3rd 419.
[10]
__________, 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.).
[11]
Bray, Paul M., “An
Introduction to the Public Trust Doctrine,” Government Law
Center, Albany Law School, 80 New Scotland Ave., Albany, New York
12208.
[12]
Ibid.
[13]
W.J.F Realty Corporation and Reed Rubin v. the State of New York
[14]
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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