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

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.