The Public Trust in Wildlife: Closing the Implementation Gap in Thirteen Western States

11 Pages Posted: 13 Oct 2020 Last revised: 26 May 2021

See all articles by Martin Nie

Martin Nie

W.A. Franke College of Forestry and Conservation, University of Montana

Michelle Bryan

University of Montana - Alexander Blewett III School of Law

Date Written: July 31, 2020

Abstract

Under the banner of state sovereignty, state wildlife agencies commonly claim they are entitled to manage wildlife as a public trust resource under the public trust doctrine (PTD). This assertion is frequently made in judicial proceedings, with state requests that their managerial authority over wildlife be given due force throughout state, private, federal, and even tribal lands. Based on these broad state assertions, one might be forgiven for concluding that a rich body of PTD practices and policies exists for wildlife. In reality, the PTD in state wildlife management proves to be little more than a legal ephemera, leaving few concrete traces on the landscape.

This article empirically investigates implementation of the PTD as applied to wildlife by thirteen state fish and wildlife agencies in the American West over nearly two decades. For these states, we reviewed state agency management and/or decision making documents referencing the public trust (and related principles) using an evaluative rubric. In only two out of eighty-six documents is there a discernible application of the PTD or public trust principles that goes beyond merely mentioning those legal concepts. This research exposes a significant gap between the legal assertions western states make about the PTD and the actual decisions of state agencies.

Agencies in any decision-making context must making findings under applicable law and support their choices with evidence. This administrative expectation should be all the more exacting when a public trust resource is implicated. To truly fulfill the legal mandate of the PTD, and to avoid the specter of arbitrary and capricious decision-making, state wildlife agencies must do more. By drawing comparisons to the application of PTD in state water resources decisions—an area with more developed public trust application—the article suggests how states can begin to close this implementation gap for wildlife.

Keywords: public trust, wildlife

JEL Classification: K32

Suggested Citation

Nie, Martin and Bryan, Michelle, The Public Trust in Wildlife: Closing the Implementation Gap in Thirteen Western States (July 31, 2020). Environmental Law Reporter, 2020, Available at SSRN: https://ssrn.com/abstract=3679325 or http://dx.doi.org/10.2139/ssrn.3679325

Martin Nie

W.A. Franke College of Forestry and Conservation, University of Montana ( email )

32 Campus Drive
Missoula, MT 598012
United States

Michelle Bryan (Contact Author)

University of Montana - Alexander Blewett III School of Law ( email )

32 CAMPUS DR
MISSOULA, MT Montana 59812-0003
United States
4062436753 (Phone)
59812-0003 (Fax)

HOME PAGE: http://www.umt.edu/people/michellebryan

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
51
Abstract Views
341
rank
527,730
PlumX Metrics