'Raisins are Not Oysters': Horne and the Improper Synthesis of the Public and Wildlife Trusts

Abstract

Public trust and wildlife trust have historically been viewed as two separate property doctrines, and the synthesis of them would have serious repercussions for private property owners and threatened and endangered wildlife species. A misguided reading of the recent Horne decision from the Supreme Court threatens to do just that. The public trust doctrine is recognized as protecting resources that belong to no individual; more specifically the public trust doctrine has historically been applied to navigable waters and submerged lands. The wildlife trust, while similar, has always been separate and is more narrowly used to convey that wildlife is held in trust by the sovereign state for the people. In the June 2015 Supreme Court case Horne v. Department of Agriculture, Justice Roberts in a short paragraph distinguished a 1929 Supreme Court case about government takings of oysters by stating “raisins are not oysters” which in the eyes of some renewed and expanded the public trust protection to wildlife. But this small paragraph sets up a conflict between protecting species and private property rights and would likely lead to serious negative repercussions. This article examines the public trust and wildlife trusts separately, their development, their histories, relevant caselaw, how they are codified in statutes and acts, and the legacy of the synthesis of the two trusts from Horne in relation to them. This is the first article to analyze how Horne affects the distinction of the wildlife trust from the public trust. Then the article analyzes the negative consequences of synthesizing the public and wildlife trusts, how the wildlife trust protection of species is in conflict with the property rights of land owners, and multiple methods that could be used to protect both property rights and endangered and threatened species.