November 30, 2013

How 'public' is the Public Trust Doctrine?

Biologists with Nebraska Game and Parks Commission take
measurements from a male mallard duck captured in the
Nebraska Sandhills.  Ballot initiatives take decision-making
on wildlife issues away from biologists who work with
wildlife and habitat on a daily basis.  Photo by Larkin Powell.
One of the fundamental legal principles used to guide the management of wildlife in the United States is the "Public Trust Doctrine".  The Doctrine is not a document.  The Doctrine is not a set of rules.  Instead, the Doctrine is an accumulation of legal decisions, made over the years.  If you take a series of Supreme Court decisions and study them, you can determine the general manner in which natural resources (and wildlife among them) are managed in the U.S.  And that is the Doctrine.

The nuts and bolts of our Public Trust Doctrine (with regard to wildlife) are this:  people do not 'own' specific wildlife (e.g., such as those on their land...which is the case in some other countries in the world).  And, the 'king' does not own wildlife in the United States--our separation from England made that loud and clear, and our history dates back to people who were not happy about the fact that the King of England had deer in his forests that could not be touched by the common person.

Who does own wildlife in the US?  People in the U.S. own the wildlife in common as citizens of individual states.  The State holds that ownership as a 'public trust.'   In a few instances, the federal government has been given that 'trust'...with endangered species, with migratory species, and when issues of inter-state commerce arise.  

The upshot a citizen of Nebraska, I own the wildlife of Nebraska along with all of my fellow citizens.  I don't have a right to take a specific individual, however (I have to wait for hunting season that has been established by the State).

This 'public trust' gets interesting from time to time.  Typically, we citizens put the management of our wildlife in the hands of a state agency that we (citizens) have formed (at some point in the past).  In Nebraska, that is the Nebraska Game and Parks Commission.  In Iowa, it is the Iowa DNR.  Their biologists and managers make decisions on behalf (and somehow in the interests) of all state citizens.

However, with the advent of ballot initiatives (Nebraska was one of the first states to use a ballot initiative by the way--to create our unicameral legislature), that Public Trust has often been yanked out of the hands of the state wildlife agency and placed squarely in the hands of the voting public.  

A timely example is in the state of Michigan, which is reported to have up to three ballot initiatives related to wildlife pending for next November's general election.  A couple of them are related to an emotional issue--wolf management (to hunt or not to hunt).  A special interest group wants to ban the hunt; the state wildlife agency has approved the hunt.  Thus, the stage for the ballot initiative is set, and it will be a show-down.  

So, should the public take the reins on issues like this?  Ballot initiatives are surely legal.  But, the basic question was stated nicely by a member of a citizens' group (article here): “Are you going to have scientists manage your wildlife? Or are you going to have emotional commercials and who can spend the most on TV commercials?"

Ballot initiatives are here to stay, and my advice to my students has been---know that this can happen, and be prepared to work within the ballot initiative system.  That means--be prepared to get information to the public to let them make an informed decision.  It may mean out-competing a special interest group using faulty information.  Public relations is something for which our wildlife students do not receive much training.

Our profession needs to come to grips with the trend for ballot initiatives.  It is clear that the "public" in Public Trust Doctrine does not HAVE to refer, by default, to the state wildlife agency.  It is also clear that results from ballot initiatives can be swayed by emotion and short-term thinking rather than long-term objectives for management for the common good.  Something to ponder...

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