Cooperation: The balance between the public’s interest and privates rights regarding wildlife
The Conservation story of North America is stunning and tragic at the same time. Millions of Buffalo used to roam the great plains now they are sectioned to a small part of the country. Elk used to abundant in the eastern forests and grizzly bears used to wander the midwest. Most of the big game animals had been close to extinction and or pushed to the most remote corners of the continent: however, this changed over time as people came to together to try and restore what was once a thriving environment of delicate ecosystems. This change occurred through following the Public Trust Doctrine and the North American Conservation Model. The Wildlife Society (2010) states, “The Doctrine establishes a trustee relationship of the government to hold and manage wildlife, fish, and waterways for the benefit of the resources and the public”(p.9). The significance of the PTD is the public holds the deed to all of the wildlife and it is entrusted in the government. This is what has allowed the North American Conservation to be so successful. When the public has interest or value in the resource the government, politicians, and state agencies all can be swayed to protect or better the resource. The Public Trust Doctrine applies to the private landowners, the public and State wildlife agencies; however, some of the public resources are being used for private benefit inadvertently affecting the public interest in the resource.
When the PTD is applied to the landscape there are people's livelihoods, ecosystems and government interests at stake. There are three main stakeholders that the PTD effects, the public, the private landowner, and the state agencies. The public views the PTD as an asset because of the opportunity it generates for the average person. The private landowner sees the PTD as beneficial; although it can blur the lines between private property rights and the public's wildlife which is an area for contention. Lastly, the State agencies see the PTD as a guideline because the state governments are tasked with holding the wildlife in trust for the people. The way the PTD is perceived by the stakeholders varies and this variance creates a grey area which can affect the public's interest in wildlife.
Private landowners play a major role in conservation because they control large amounts of wildlife habitat. Reed Watson (2013) writes, “ Whether seasonal or year-round, the presence of public wildlife on private land creates a situation similar to a surface estate of surface and mineral rights; specifically, the ownership of overlying resources is held by separate distinct entities” (p. 5). Reed Watson is explaining that the animals are held by the public but most of the land they live on is private land this creates a split estate. This is where the lines become blurred. Who has the right to what? Does the public have the right to cross private property to get to public animals? Private property rights are strong and always will be. Private landowners see these animals as there property and use them to sell for profit through outfitting and hunting leases. According to Butler, Teaschner, Ballard, McGee(2005), “Remember Wildlife is a product of the land and often is subsided at the expense of the private landowner.”(p. 387). This is why private landowners try to offset some of the costs of the wildlife by outfitting the ranch, trespass fees, and trophy hunting operations. Private landowners would argue that they have just as much right as any other person to the animals especially because they are on their land.
The best possible outcome for the private landowners is the way rights are distributed right now. When a mule deer walks into a rancher's pasture the mule deer is not the ranchers but no one has the ability to get to the mule deer because the rancher owns the land the mule deer is on. This system works well for the ranchers because they get to benefit off a resource they didn’t pay for. There is a catch though when a large herd of elk comes on to the rancher's property and eat 20,000 worth of hay. Then whose problem is it? It was a public resource that diminished a private entity. Is the public responsible for repaying the rancher for the hay he lost? In today’s world, the rancher doesn’t get reimbursed but he has the right to try and get rid of the elk on his property in a non-lethal way. If the problem gets too bad state agencies will issue tags to try and remove elk from the ranch. Private landowners want to retain property rights and keep public wildlife on their ranch without hurting their own property.
The worst possible outcome for private landowners would be some sort of easement across private property to get to the public resource. This would be a large infringement on private property rights but it is not that far fetched because of the application of the stream access law to water.
Reed Watson (2013) states,
The application of the public trust doctrine to wildlife has the potential to alter the of rights and
responsibilities significantly between state agencies and private landowners and to exacerbate the controversies and rent dissipation caused by the split wildlife estate(p. 3)
Mr. Watson is really explaining the worst possible outcome for the private landowner. If the PTD is applied to the fullest extent it could infringe or even override private property rights and cause a large debate. This private property rights infringe may never happen but if it did it would be a new day for the public and conservation.
The public sees the application of the PTD as a law that keeps hunting, fishing, and the outdoors from becoming an elitist sport. The PTD is what separates America from other countries in the world where only the rich and famous get to hunt. The wildlife society (2010) tates, “ Accordingly, the PTD holds the publicly owned wildlife resources are entrusted to the government (as trustee of these resources) to be managed on behalf of the public, the beneficiaries.”(p.10). The idea that the people can have an equal opportunity at the natural resources is what makes the North American Conservation Model work.
The best possible outcome for the public is the strongest use of the PTD which is directly opposite of the private landowner. The outcome would be an easement across private property to the public wildlife. This outcome would open up access to so many more opportunities for the public and vastly increase the public interest in the resource which would also increase the value of the resource. In turn, giving the wildlife more value is more conservation efforts that will take place to protect the valuable resource. The worst outcome for the public would be private owners gaining more control over the natural resources. An example of this would be a rancher managing the wildlife/natural resources for his own personal gain. A little of this is done today through landowners tags and society’s want for trophy hunting. The worst outcome would lead to the loss of public interest effectively killing the North American Conservation Model.
State Agencies take a very interesting stake in this subject. They are tasked with holding the public wildlife in trust for the benefit of the people.
Montana Fish, Wildlife and Parks (2016),
We recognize that Montana’s fish and wildlife are the public’s resources and are held in trust by the state to be managed for the benefit of present and future generations. The opportunity to enjoy and harvest these resources is allocated equitably.(p. 4)
The agencies stake in this discussion of the application of the PTD is to represent the public's interest and best serve what the public wants with the natural resources. There ultimate job to protect, maintain, and provide access to the public's resource. The state agencies have to work with private landowners because a piece of the public’s resource at any given time can be on private property. They have to balance the grey area regarding the split estate between public resources and private land. An example of this balance is Montana Fish Wildlife and parks (2016) quote about working with landowners, “We respect property rights and work collaboratively with landowners to manage fish, wildlife, and state parks resources and the public’s opportunity to enjoy them.”(p. 4). Landowners are key to the success of managing the public’s wildlife and the public’s interest. The State Agencies have to strike a balance between private landowners and the public.
The best possible outcome for the State Agencies would be a cooperative public and private landowners working together for the same goal of enhancing the public's resource. The State Agencies are obligated to try and strike a middle ground between everyone because the resources is the people’s not the states or private landowners. The worst possible outcome for the State Agencies would be an uncooperative public and private landowners. This sercniao would ruin the balance between the two and put the public’s wildlife risk. When one group becomes uncooperative the whole idea is ruined. This effectively would decrease the public's interest and stop the North American Conservation Model in its tracks.
The three stakeholders above have many different opinions on the application of the PTD and how this will affect their interests and the publics. My position on the application of the PTD is it needs to have broader controller over the natural resources by incentivizing private landowners to allow more access. This access would based on acreage and habitat on the property. This may sound like an infringement on private property rights but they are actually infringing on the public’s right.
According to Butler, Teaschner, Ballard, McGee(2005),
Potential problems or drawbacks included negative public opinion, hunting becoming an
elitist activity, losses in public interest, reduced societal value of wildlife, importation of
exotic species, little gain in habitat quality, and a shift from public to private ownership
of wildlife.(p. 383)
If the trend today of more and more ranchers closing there property to public hunting continues we will lose much of progress made so far since the birth of the PTD. Reed Watson (2013) states why landowners should be incentivised to let the public hunt, “When private landowners view wildlife as an asset rather than a liability, they are more likely to be a good wildlife stewards”(p. 42). When landowners view the wildlife as beneficial instead of a nusicanne and or asset just for themselves this brings the public and the private landowner together. By bringing the two stakeholders together it effectively satisfies the State Agencies in turn supporting the public’s interest which ultimately upholds the PTD and the North American Conservation Model.
In conclusion the stakeholders all have a vested interest in the PTD and the North American Conservation Model. Each stakeholder holds a different role in keeping the balance between private rights and public wildlife. Private landowners want strong property rights, access to the public's resources, and the ability to mitigate any harm from the public’s resource. The public wants access to the resource and the ability to use it for future generations. Lastly the State Agencies want to manage the resource to facilitate the preservation of the resource. This can be done by bringing the private landowners and the public together through the efforts of the State Agencies. If this can be done the North American Conservation Model and the Public Trust Doctrine will continue to thrive.
Butler, M. J., Teaschner, A. P., Ballard, W. B., McGee, B. K., (2005). Wildlife Ranching in North
America: Arguments, Issues, and Perspectives. Wildlife Society Bulletin, 33, 381-389.
Montana Fish, Wildlife and Parks. (2016). Vision and Guide 2016-2026. 1-19.
Retreived from http://fwp.mt.gov/doingBusiness/insideFwp/visionAndGuide/
The Wildlife Society. (2010). The Public Trust Doctrine.
Retrieved from https://wildlife.org/wp-content/uploads/2014/05/ptd_10-1.pdf
Reed Watson, Public Wildlife on Private Land: Unifying the Split Estate to Enhance Trust
Resources, 23 Duke
Environmental Law & Policy Forum 291-321 (Spring 2013)
Retrived from https://scholarship.law.duke.edu/delpf/vol23/iss2/5