The Public Trust in Wildlife: Closing the Implementation Gap in 13 Western States

• Date: 01 November 2020

112020 ENVIRONMENTAL LAW REPORTER 50 ELR 10909

by Martin Nie, Nyssa Landres, and Michelle Bryan

THE PUBLIC TRUST IN WILDLIFE:

CLOSING THE IMPLEMENTATION GAP

IN 13 WESTERN STATES

SUMMARY

State wildlife agencies commonly claim they are entitled to manage wildlife under the public trust doctrine

(PTD). This assertion is frequently made in judicial proceedings, with state requests that their managerial

authority be given due force throughout state, private, federal, and even tribal lands. One might conclude

that a rich body of PTD practices and policies exists for wildlife; in reality, the PTD in state wildlife manage-

ment proves to be ephemeral. This Article empirically investigates application of the PTD to wildlife by 13

state f‌ish and wildlife agencies in the American West over nearly two decades. It exposes a signif‌icant gap

between the legal assertions wester n states make about the PTD and the actual decisions of state agencies. To

fulf‌ill the legal mandate of the PTD, and avoid the specter of arbitrary and capricious decisionmaking, state

wildlife agencies must do more. The Article suggests how states can begin to close this implementation gap.

Under the banner of state sovereignty, state wild-

life agencies commonly claim they are entitled to

manage wildlife as a public trust resource under

the public trust doctrine (PTD). is assertion is fre-

quently 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.¹ 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 mana gement proves to be little more than legal

ephemera, leaving few concrete traces on the landscape.

is Article empirically investigates implementation of

the PTD as applied to wildlife by 13 state sh and wildlife

agencies in the American West over nearly two decades.²

For these states, we reviewed state agency management

and/or decisionmaking documents referencing the public

1. e applicability of state authority to manage wildlife on these various lands

is a complex question outside the scope of this Article. But see Martin Nie

et al., Fish and Wildlife Management on Federal Lands: Debunking State Su-

premacy, 47 E. L. 797 (2017).

2. Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, Nevada,

New Mexico, Oregon, Utah, Washington, and Wyoming. Our review fo-

cused on states with searchable databases of agency decisions, and covered

the years 2000-2018.

trust (and related principles) using an evaluative rubric

(Table 2, below). In only t wo out of 86 documents is there

a discernible application of the PTD or public trust prin-

ciples that goes beyond merely mentioning those legal con-

cepts. is research exposes a signicant gap bet ween the

legal assertions western s tates make about the PTD and the

actual decisions of state agencies.

Agencies in any decisionmaking context must make

ndings under applicable law and support their choices

with evidence.³ is administrative expectation should be

all the more exacting when a public trust resource is impli-

cated. To truly fulll the lega l mandate of the PTD, and to

avoid the specter of arbitrary and capricious decisionmak-

ing, state wildlife a gencies must do more. By drawing com-

parisons to the application of PTD in state water resources

decisions—an area w ith more developed public trust appli-

cation—the Article suggests how states can begin to close

this implementation gap for wildlife.

3. See, e.g., Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416,

420, 1 ELR 20110 (1971) (holding that an agency decision must “provide

an adequate explanation” and be “based on a consideration of the relevant

factors” under the applicable law); Motor Vehicle Mfrs. Ass’n v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43, 13 ELR 20672 (1983) (“[T]he agen-

cy must examine the relevant data and articulate a satisfactory explanation

for its action including a ‘rational connection between the facts found and

the choice made.’”).

Martin Nie is Professor of Natural Resources Policy and Director of the Bolle Center for People and

Forests at the W.A. Franke College of Forestry and Conservation, University of Montana. At the

time of this research, Nyssa Landres was a graduate student in the Resource Conservation Program

in the W.A. Franke College of Forestry and Conservation. Michelle Bryan is a Professor in the

Natural Resources and Environmental Law Program, University of Montana School of Law.

Authors' Note: Our thanks to law student Taylor Simpson

for his research support.

Copyright © 2020 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.