Public Trust – Ancient Doctrine… Modern Imperative

Chris SmithWildlife Management InstituteMay 21, 2014

What Business Are You In?

Recreation? Mitigation? Information & Education? Scientific Investigation? Wildlife Protection? Conservation?

What Business Are You In?

You are in the business of managing the public’s trust:

The “trust” assets embodied by Idaho’s fish and wildlife – an ancient doctrine

The “trust” the public has in you as professional resource managers – the modern imperative

“Ancient” Public Trust Doctrine

What is it and where did it come from?

What is the role of “government”? What is your role as a Department

employee?

The Essence of the Public Trust Doctrine

Certain natural resources – such as air, water, submerged lands, fish and wildlife – are held in “trust” by the government for the benefit of the public.

Origins of the Public Trust Doctrine

“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”

From The Justinian Institutes, AD 529

Progression of Sovereignty

From the Magna Charta…

English Common Law

Colonial Charters

Declaration of Independence

…to Massachusetts

Supreme Court Rulings onthe Public Trust Doctrine in the U.S.

Martin v. Waddell, 41 U.S. 16 Pet. 367 367 (1842)

Justice Taney

“…when the people of New Jersey took possession of the reins of government…the prerogatives and regalities which before belonged either to the crown or the parliament became immediately and rightfully vested in the state…”

“…dominion and property in navigable waters, and in the lands underneath them [were] held by the King as a public trust…”

Supreme Court Rulings onthe Public Trust Doctrine in the U.S.

Illinois Central R.R. v Illinois, 146 U.S. 387 (1892)

Justice Field

‘‘Every legislature must, at the time of its existence, exercise the power of the State in the execution of the trust devolved upon it.’’

Supreme Court Rulings onthe Public Trust Doctrine in the U.S.

Geer v. Connecticut, 161 U.S. 519 (1896)

Justice White

“The adjudicated cases recognizing the right of the states to control and regulate the common property in game are numerous.”

“…the power or control lodged in the state… is to be exercised, like all other powers of government, as a trust for the benefit of the people...”

The Public Trust Doctrine in State Case Law

States

Recognized as valid legal doctrine 41

Extended to resources other thannavigable waterways 21

Discussed in relation to wildlife 15

Batcheller, G.R. et al. 2010. The public trust doctrine: implications for wildlife management and conservation in the United States and Canada. Technical Review 10-01. The Wildlife Society, Bethesda, Maryland, USA.

The Public Trust Doctrine in State Constitutions and Statutes

Constitution Statute Clear statement of public ownership of wildlife 1 41

Clear delegation of Management responsibility 2 48 Mission and purpose appropriate to PTD 2 48

Accountability of trustees 2 39

Batcheller, G.R. et al. 2010. The public trust doctrine: implications for wildlife management and conservation in the United States and Canada. Technical Review 10-01. The Wildlife Society, Bethesda, Maryland, USA.

The Public Trust Doctrine in Idaho Statutes

Title 36 – Chapter 1 FISH AND GAME COMMISSION 36-103. Wildlife property of state --

Preservation. (a) Wildlife Policy. All wildlife, including all wild animals, wild birds, and fish, within the state of Idaho, is hereby declared to be the property of the state of Idaho. It shall be preserved, protected, perpetuated, and managed.

The Public Trust in Idaho Case Law

Idaho Court of Appeals:

“…the wildlife in our state belongs to the people as a whole in their collective, sovereign capacity and is treated as a common trust.”

State v. Thurman 996 P.2d 309,316 (Idaho App. 1999)

Elements of a Trust

Trustees

Assets

Beneficiaries

Trust

What Are The Assets?

Who Are the Beneficiaries?

…in short…everyone.

Rights of Beneficiaries

Demand that trustees: Protect the corpus of the trust Consider their needs and interests Provide benefits from the trust :

Consistent with the capacity of the trust and

In consideration of competing interests

Who Are The Trustees?

“Government”

Judicial Branch

Origin and guardian of the Public Trust Doctrine

Trustees – Elected & Appointed Officials

Legislature

Governor

Commissioners & Director

Responsibilities of Trustees

Maintain the corpus of the trust and its ability to provide benefits in perpetuity

Consider the needs of all beneficiaries – both current and future generations

Allocate benefits from the trust among competing interests

Trust Managers – Resource Professionals

Responsibilities of Trust Managers

Monitor the status of the trust assets Identify potential benefits of the trust Inform trustees and beneficiaries of options Inform trustees of beneficiaries’ interests Facilitate dialog among beneficiaries Manage the trust as directed by trustees

Trustees vs. Trust Managers

ELECTED & APPOINTED OFFICIALS

Fiduciary duty to the people

Highest level policy decision-makers, including allocation of benefits

Accountable to the people

IDF&G PROFESSIONAL STAFF

Ministerial and executive functions

Recommend, but do not decide, policy unless delegated

Accountable to appointed elected & appointed officials

How Can You Promote The Public Trust in Idaho?

Inform the trustees and public about the PTD

Provide trustees and beneficiaries with comprehensive, objective analysis

Be honest and direct with trustees and beneficiaries

Resist the temptation to act as trustees

Why This Matters

Public Trust Doctrine is Fundamental

Foundation of the “North American Model”

Spans the needs of all wildlife and all people

Gives everyone a stake in wildlife Basis for broader public and financial

support

Earning/Keeping the Public’s Trust

Public trust in you is your most valuable asset

Trust is easy to lose and hard to re-gain

Keys to public trust: Honesty, openness, fairness – with all Reliability - meeting expectations

Why This Matters

Public Trust in You is Essential

With it…much is possible Without it, nothing is.

Thank you

Questions?