Public Trust Doctrine: a better paradigm for wildlife conservation
The Public Trust Doctrine (PTD) offers an alternative framework to the status quo in wildlife management that is more compatible with modern ecological and societal goals. PTD is a legal doctrine with its roots in Roman and English common law. It holds that nature, including wildlife, is a public trust1 that the government has a “fiduciary” duty to protect for the benefit of the beneficiaries, including those not yet born.
Fiduciary is a legal term, meaning a duty to prudently manage and preserve the trust solely for the beneficiaries.
Who are the beneficiaries of the wildlife trust? They are often described as being “all people” which is accurate to a point, given that everyone benefits from wildlife whether they know it or not. Wild animals are essential to the functioning of natural ecosystems, which in turn provide all of us with free services that we depend upon for our survival, e.g. clean air and water, pollination, crops, medicines, healthy soils, waste processing, stable climate, etc.
However, wild animals clearly benefit from their own existence, and they, like all organisms, are also dependent upon natural ecosystems for their survival, so it is more accurate to say that the beneficiaries of the wildlife trust are “all life.”
Inherent in public trust thinking are certain responsibilities on the part of the trustee. These include2:
- To protect the trust from substantial impairment
- To treat current and future beneficiaries equally (intergenerational equity)
- To give public purposes priority over private uses
- To prevent waste and restore damage to the trust
- To guard against privatizing trust resources at the expense of the public.
- A trustee duty to act with the utmost loyalty to the beneficiaries
- A legislative responsibility to adequately supervise administrative agencies
- To act in good faith and with reasonable skill
- To manage the trust with reasonable caution
- To provide information to beneficiaries and an accurate accounting of trust resources
As applied to wildlife, the PTD means:
- The trustees are elected and appointed government officials, including wildlife commissioners, with legal responsibility for wildlife. They are ultimately accountable to the beneficiaries.
- The trust managers are conservation professionals working in public wildlife agencies, who act as agents of and are ultimately accountable to the trustees.
- The trust administrators are trustees and trust managers collectively.
- The wildlife trust includes all species of wild animals, including invertebrates.
- The beneficiaries of the trust are, at a minimum, all people residing in a given jurisdiction, both living and yet to be born. Arguably, the beneficiaries include all wild organisms as well.
- No individual owns wild animals. And arguably, neither does the government. Wild animals “own” themselves.
- As trustees, state legislatures have a duty to provide their wildlife agencies, as trust managers, with the authority and resources needed to protect all the wildlife in their state.
- Legislatures, commissions and agencies should not privilege one group of beneficiaries, e.g. hunters or deer, over others.
- Legislators have a duty to ensure that wildlife commissions reflect the broad range of public interests in wildlife. However, the principle duty of commissioners should be to protect the trust for all beneficiaries, not serve any particular interest.
- The interests of beneficiaries who do not or cannot normally engage in wildlife deliberations, including non-humans, should be equitably represented and considered. Trust administrators have an affirmative duty to proactively engage with these beneficiaries (or their representatives) and involve them in wildlife decisions.
- Decisions about how to manage wildlife should not favor living beneficiaries over future ones.
- Wildlife decisions should be made transparently, informed by the best available science, with the fullest possible involvement of beneficiaries, and with explicit acknowledgement of the values underpinning the decisions.
1. Many people refer to wildlife as public trust “resources.” This implies an anthropocentric view that wild animals exist only as things to be used and exploited by humans—a notion of human exceptionalism that Wildlife for All rejects. When referring to the wildlife trust, we use the term “trust” as a noun, not an adjective.
2. Taken mostly from Nie and Bryan, 2020.
Darragh Hare and Bernd Blossey (2014) Principles of Public Trust Thinking, Human Dimensions of Wildlife: An International Journal, 19:5, 397-406.
Darragh Hare, Daniel J. Decker, Christian A. Smith, Ann B. Forstchen & Cynthia A. Jacobson (2017) Applying Public Trust Thinking to Wildlife Governance in the United States: Challenges and Potential Solutions, Human Dimensions of Wildlife, 22:6, 506-523.
Adrian Treves, Guillaume Chapron, Jose V. López‐Bao, Chase Shoemaker, Apollonia R. Goeckner, Jeremy T. Bruskotter (2017) Predators and the Public Trust, Biol Rev Camb Philos Soc., 92(1): 248–270.
Martin Nie and Michelle Bryan, The Public Trust in Wildlife: Closing the Implementation Gap in Thirteen Western States (July 31, 2020). Environmental Law Reporter, 2020.
Michael C. Blumm, et al. The Public Trust Doctrine in Forty-Five States (February 2015). Lewis & Clark Law School Legal Studies Research Paper.