The Public Trust: Ditching the Dogma

The Rise of Conservation

• Until early 1900s, resources exploited for economic gain without conscience

• Conservation: the greatest good for the greatest number in the long term: Pinchot (1905)

The Public Trust Doctrine

• Trust Resource (water, shoreline, fish, maybe wildlife)

• Trustee (State)

• Beneficiary (public)

• Settlor (whoever granted it)

Some History

• Romans: air, the rivers, the sea and the seashore were incapable of private ownership and dedicated to the use of the public

• English: the king owned “nature” including wildlife, but managed it for the well

  being of the public

• Americans: Early supreme court decisions (e.g., Martin v. Waddell 1842 [fishing in navigable waters], Geer v. CT [wild fowl]) said everything the King owned was now held in trust by the state (i.e., states are the trustees for citizen beneficiaries)

Public Trust Doctrine in NC

• Says that marine life is the public enjoyment

• In Texas, all wild animals are property of people in the state

The Dogma = a lot of the NAM

"I really liked seeing that Shane Mahoney is with your team. I'm pretty sure I am one of his biggest fans! The man is a conservation god!"

• Dogma: things we feel like we should believe in without evidence

Emergence of the North American Model (NAM)

• 1995

• Used ethos, pathos, logos

The Dogma

• “Bedrock principles of the NAMWC ultimately led to a continent-wide resurgence of wildlife at a scale unparalleled in the world.”

• “These principles have served wildlife conservation well beyond hunted species and helped sustain the continent’s biodiversity.”

• “>50% of the global deterioration in the conservation status of birds, mammals and amphibians is concentrated in…eight/195 countries (4%) – Australia, China, Colombia, Ecuador, Indonesia, Malaysia, Mexico, and the United States.”

• The model’s 2 basic tenets:

  • that our fish and wildlife are reserved for the onon-commercial use of the individual hunters and anglers

  • and are to be managed in such a way that their populations will be sustained at optimal levels forever—are elaborated by seven concise stipulations

• The seven sisters or pillars of the doma

  • The Public Trust (doctrine)

    • property clause

    • treaty clase

    • 10th amendment gives states control unless U.S. wants it even on private land

    • Commerce Clause (Especially in fisheries)

    • Supremacy Clause (preemption and savings: US wins but some state law can co-exist)

  • Prohibitions on Commerce

    • Commerical fisheries

    • Many non-game species

    • Fur-bearers

    • “Amphibian and reptile product dealers (ARD) permit“ required of residents but not nonresidents in FL

    • Guides

    • High fence hunting

    • Constantly Changing

  • Democratic Rule of Law

    • a) What does this mean?

    • b) Most wildlife management decisions are not made democratically (majority rule)

    • c) There is no evidence that wildlife management is more democratic in NA than anywhere else with a nominally democratic form of government

  • Hunting Opportunity for all

    • a) The NAM was built on taking hunting from the masses

    • b) It does not exist in an 80% urban nation

    • …but Hunters Have Funded management

    • Hunting = centerpiece of “user-pay, user benefit” conservation funding system

    • – P-R Act alone has contributed >$10 billion to state agencies for land acquisition & wildlife restoration projects/activities

    • – ~60% of state agency budgets comes from hunting & angling

    • Problem: Hunting participation is declining…

  • Non-Frivolous Use

    • a) What does this mean? ($, food, fun) b) Who decides? c) It’s constantly changing…

  • International Resources

    • Maybe if you’re talking about the Canadian border

  • Scientific Management

    • Science is not a tool for determining what ought to happen.

    • Science derives facts about nature than can make us more successful in efforts to achieve what we want to happen for moral, economic, political, and value based reasons.

• Dogma Test

  • I give you a claim from NAM debates and you decide if it is based on logic and/or empirical evidence

    • What should you look for?

      • Empircial evidence?

      • Logical support?

      • Belief that it is not to be doubted?

    • Be prepared to defend your opinion

  • Organ and Mahoney

    • Giving control of wildlife management to private entities will weaken the role of professional wildlife managers employed by public agencies

    • If the PTD erodes then the public’s connection to wildlife will erode

    • Without PTD the public will lose the ability to challenge decisions made by private landowners.

  • Stober

    • The importance of the PTD is a myth perpetuated by environmentalists

    • Safe harbor agreements are an example of how private landowners can conserve wildlife without needing PTD

    • Making wildlife private property will make landowners better stewards (better than politicians doing it now)

  • Condy

    • More land is protected for wildlife conservation by private landowners who essentially own wildlife than by the government in the nation of South Africa.

    • Not caring for things one does not own is the oldest of human instincts (so people wont care about PTD wildlife).

    • People abusing resources in protected areas “puts to the sword” the concept of PTD management of nature.

    • Public lands cannot be closed when they are too full of people but private lands can.

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