The Public Trust Doctrine...

The public trust doctrine and wildlife resources may seem a special interest topic. However, the story is a well documented one and will serve to illustrate the principles of the Public Trust Doctrine. Just as importantly, these lessons can be applied to all resources in the Commonwealth. In any new paradigm of dealing with environmental issues, local control of the Public Trust will be key to protecting the common interests.

When the first European colonists arrived in Pennsylvania, they found a land teaming with natural resources, including abundant populations of fish, game and wildlife. By the late 1880’s, however a very different situation existed. Most of the timber was being cut and removed from Pennsylvania’s mountains. Pennsylvania's streams and rivers were polluted. Populations of most species of fish, game and wildlife had been decimated by essentially unrestrained hunting and fishing resulting from weak, poorly enforced hunting and fishing laws. Pennsylvania was rapidly becoming a wasteland.

Sportsmen started lobbying for agencies that could safeguard fish and wildlife, improve populations, and enforce fishing, hunting and trapping laws. The sportsmen’s efforts eventually bore fruit in the form of the appointment of a Commissioner of Fisheries, predecessor to the Pennsylvania Fish and Boat Commission, in 1866 and of the Board of Game Commissioners, predecessor to the Pennsylvania Game Commission in 1895. Nonetheless, it took a long time for the agencies to get established. For example, it was nearly a year and one half before a Board of Game Commissioners was appointed and two years before it had any money appropriated to spend, and that was just for postage.

The Pennsylvania Fish and Boat Code, 30 Pa. C. S. §101 et seq. and Game and Wildlife Code, 34Pa. C. S. §101 et seq. are the latest in a series of statutes designed to preserve and protect fish, game and wildlife resources while providing maximum recreational opportunity. As a result of the dedicated efforts of countless commissioners, law enforcement officers, and support staff, abundant populations of fish, game, and wildlife have been restored to Pennsylvania. Over a million hunters annually are given numerous opportunities to hunt game and trap furbearers. This has been termed the fourth largest army in the world. Nearly 900,000 anglers annually have the opportunity to fish Pennsylvania’s beautiful lakes, rivers, and streams. Approximately 1.4 million acres of land have been set-aside as wildlife habitat to be used by all for the enjoyment of nature and wildlife.

Taking a step back to see how the Commonwealth's laws evolved, we need to go as far back as early English law. Early wildlife laws in the United States were the legacy of early English law, which had four goals:

a. Sustainability of wildlife harvests.

b. Regulation of human behavior in using weapons.

c. Favor the classes with wealth.

d. Preserve the right of wildlife to exist.

As mentioned, the initial abundant populations of wildlife and the simple need of survival in the New World, combined with the difficulty in enforcing hunting and fishing laws, led to decimation of numerous species of wildlife. The loss of wildlife led in turn to a decision that government should control the taking of fish, game, and wildlife.

The power of the states to control the taking of fish and wildlife was most strongly supported by the U. S. Supreme Court in Geer v. State of Connecticut, 161 U. S. 519 (1896). The Court held that the State of Connecticut literally owned the fish and wildlife of the state such that it could adopt statutes prohibiting possession of birds taken within the state for the purpose of transporting them out of state without violating the Commerce Clause of the U. S. Constitution. This concept of literal ownership of fish and wildlife resources by the states prevailed for nearly one hundred years when the U. S. Supreme Court decided three cases during the period 1977-1979 which greatly clarified the powers of the states with respect to the U. S. Constitution.

In 1977, the Court decided Douglas v. Seacoast Products, Inc., 431 U. S. 265 (1977), which dealt primarily with the issue of whether Virginia could prohibit federally licensed fishing vessels owned by nonresidents of Virginia from fishing in Chesapeake Bay. Although the case was decided on the basis of preemption, Justice Marshall, quoting Justice Field, dissenting in Geer v. Connecticut, supra: “A State does not stand in the same position as the owner of a private game preserve and it is pure fantasy to talk of ‘owning’ wild fish, bird or animals. Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture, Douglas v. Seacoast Products, Inc., supra, p. 284.

In 1978, the U. S. Supreme Court decided Baldwin v. Fish and Game Commission of Montana, 436 U. S. 371 (1978).Lester Baldwin, a resident of Montana and a licensed hunting guide, and others challenged Montana’s statutory elk-hunting scheme which imposed substantially higher (7.5 times) license fees on non-residents(vs. residents) and required nonresidents to purchase a “combination license” as violating the Privileges and Immunities Clause and the Equal Protection Clause of the Fourteenth Amendment of the U. S. Constitution. The Appellants argued that the doctrine of state “ownership” had “no remaining vitality.” Justice Blackman, speaking for the majority, disagreed, pointing to Douglas v. Seacoast Products, Inc., supra, and emphasizing “the importance to its people that a State have power to preserve and regulate the exploitation of an important resource,” Baldwin v. Fish and Game Commission of Montana, supra at p. 386. The Court held that although Montana’s greater requirements imposed on non-residents did not violate the Privileges and Immunities and Equal Protection Clause, state power to regulate fish and wildlife is not exclusive and absolute in the face of federal regulation and certain federally protected interests. Thus under Baldwin v. Fish and Game Commission of Montana, supra, states have great latitude in determining what means are appropriate for protecting fish and wildlife provided constitutional requirements are met.

The final case decided by the U. S. Supreme Court in the series of three relating to fish and wildlife was Hughes v. Oklahoma, 441 U. S. 322 (1979). This was another Commerce Clause challenge, this time to an Oklahoma statute that prohibited transporting or shipping outside the state for sale natural minnows seined or procured from waters within the state. The majority held that the facts of this case were essentially on all fours with Geer v. Connecticut, supra, and specifically overruled the literal ownership language of Geer v. Connecticut,supra, along with the anomaly that statutes imposing the most extreme burdens on interstate commerce were the most immune from challenge. The Supreme Court in Hughes v. Oklahoma, supra, did not eliminate the states’ interests in conservation and protection of wild animals but “narrowed” the interests by acknowledging that they are limited by commerce clause considerations.

With the overruling of the literal ownership concept of Geer and the U. S. Supreme Court’s holding that state power to protect and conserve fish and wildlife was subject to Commerce Clause limitations there were no major developments in the Federal Courts with regard to the public trust until 2002. In that year, the Ninth Circuit court of Appeals Conservation Force, Inc. v. Manning, 301 F. 3d 985 (2002), which involved a Commerce Clause challenge by professional hunters and guides to a 10% cap placed by Arizona on tags to hunt bull elk throughout the state and antlered deer north of the Colorado River in Arizona that could be issued to non-residents. The Ninth Circuit held that since Arizona permitted the sale of non-edible parts by successful hunters, the cap does violate the dormant Commerce Clause and as a result, Arizona’s caps were subject to strict scrutiny. The Federal District Court ultimately held that the restrictions on non-residents were invalid because they violated the Commerce Clause. The U. S. Supreme Court did not grant certiorari in this matter.

The next year, the District Court in Wyoming reached a different conclusion. Schutz v. State of Wyoming, (U. S. District Court in Wyoming, 2003). Finding the Conservation Force reasoning “flawed”, Judge Downes rejected challenges by the Plaintiff to limitations on big game permits that could be issued to non-residents. The Court rejected equal protection and commerce clause challenges. Hunting was not a fundamental right and all that was required was a rational basis to survive an Equal Protection challenge. Noting that residents were being rewarded for being residents, and presumably paying taxes supporting the state and by implication the state’s wildlife, the Court found that the resident preference had a rational basis to serve a legitimate state interest. The commerce clause challenge was likewise rejected, largely on the basis that hunting was merely recreational and the Plaintiff’s alleged economic loss of not being able to sell a trophy big horn sheep on Ebay was too remote to implicate interstate commerce. On appeal to the Tenth Circuit, the Tenth Circuit affirmed the District Court’s decision. Schutz v. Thorne, 415 F.3d 1128, 35 Envtl. L. Rep. 20, 146(10^th Cir. (Wyo.) Jul 11, 2005). The one added wrinkle was that Congress passed the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, (House Bill 1268), which provided in Section 6063(b)(2) (known as the “Reaffirmation of State Regulation of Resident and Nonresident Hunting and Fishing Act of 2005”) that it was the policy of Congress to allow each State to continue to regulate taking of fish and wildlife within its border, most significantly, by laws or regulations making licenses available to residents and nonresidents on differing bases. The Supreme Court denied certiorari.

Having survived a motion to dismiss for standing in State of Minnesota v. John Hoeven, et. al. 331 F. Supp.2d 1074 (U. S. District Court, District of North Dakota, Southwestern Division, 2004) the Plaintiff found itself on the losing end of a decision on the merits in State of Minnesota v. Hoeven, et al., 370 F.Supp.2d 960 (U.S. District Court, District of North Dakota, Southwestern Division, 2005). In Hoeven, the Court rejected the Privileges and Immunities challenge based on the fact that hunting was not a fundamental right such as was basic to the maintenance and preservation of the Union. This decision relied heavily on the Baldwin decision. The Hoeven decision also rejected the Commerce Clause challenge, finding that non-resident hunters did not have a direct and clear nexus to interstate commerce and that access to waterfowl hunting was purely recreational such that the activity itself did not substantially affect interstate commerce. On appeal to the Eighth Circuit, the case was affirmed. State of Minnesota v. Hoeven, 456 F.3d 826 (8^th Cir. (N.D.) Aug 03, 2006). The Eighth Circuit also noted the passage of the “Reaffirmation of State Regulation of Resident and Nonresident Hunting and Fishing Act of 2005” mentioned above.

Finally, in George Taulman v. Mike Hayden, Secretary of the Kansas Department of Wildlife, Nor reported in F.Supp.2d, 2006 WL 2631914 (U.S. District Court, Kansas, No. 05-1118-WEB, 2006), the District Court granted summary judgment to the Defendant finding that the privileges and immunities clause was not violated by denying non-residents the same rights to hunt as residents.

In summary, in 2005 Congress passed the “Reaffirmation of State Regulating of Resident and Non-resident Hunting and Fishing Act of 2005,” Pub.L. No. 109-13, §6036, 119 Stat. 231 (2005). While not binding on the judiciary, it evidences Congress’ intent to renounce any federal interest under the Commerce Clause in regulating hunting and fishing. It is likely such challenges will be fewer in the future based on the case law and the obvious legislative intent.

Essentially, in the field of wildlife, we have a situation in which the individual states and commonwealths are recognized as the trustee of the public resources or wildlife. This was a long fought battle, not finally decided even now, but brought to its conclusion by an act of Congress.

However the Commonwealth of Pennsylvania, like many other states, never wavered from its public duty. When the people of Pennsylvania adopted Article I, Section 27( the environmental amendment) of the Pennsylvania Constitution, on May 18, 197l, they formally recognized the public trust doctrine. The environmental amendment reads as follows:

The people have a right to clean air, pure water, and to the preservation of the natural scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

Although this Constitutional provision seems fairly clear, particularly in light of the U. S. Supreme Court decisions previously reviewed, there do not appear to be any reported decisions in Pennsylvania which unequivocally say that fish and wildlife are included in the public natural resources intended to be protected by the environmental amendment.

The Commonwealth's Environmental Amendment is a subject for another day. But a knowledge that the Public Trust Doctrine has a long history is important. Also important is to know that during this history, other competing interests have been weighed against the public interest in natural resources and that local control of the natural resources have not always fared so well. The fact is, that power to control natural resources had slowly been being gathered by the federal government. It took an act of Congress to return the public trust to the states. I would suggest this is a trend we will see in other natural resource areas as well. The questions whether the federal government can be held accountable under the same Public Trust principles, whether the States can wrest Public Trust responsibilities from the federal government, or whether the Public Trust Doctrine will be thrown away completely.