Public Trust Doctrine legal cases challenge wildlife ballot initiatives that ban use of leghold traps

By Stephen S. Boynton
Washington Counsel
National Trappers Association

In conjunction with state trapper affiliates and other sportsmen's and conservation groups, the National Trappers Association has initiated law suits in Arizona, California, and Colorado to challenge past ballot initiatives that have banned trapping with the leg-hold trap. The basic legal theory in the litigation is that government has a non-delegable duty to protect, manage, and conserve renewable wildlife resources for all the people that cannot be surrendered to a determinations of a popular vote.

The legal theory is called the common law public trust doctrine that traces its legal origins to the Magna Carta in 1215 in England when King John was forced to relinquish private fishing rights the Crown had granted to various worthies such as dukes, barons and earls. The point made was that the Crown held the resource for the benefit of all the people (i.e., the public) and could not grant private rights to control, manage or hold renewable wildlife and marine resources.

This concept was recognized in the United States in the 1842 US Supreme Court case of Martin v. Waddell where a landowner in New Jersey sought to exclude all others from taking oysters from mudflats on the Raritan River on the ground that his title could be traced back to a land grant in 1664 from King Charles II to the Duke of York who, in turn, further conveyed the property where the land owner was the successor in title. The Court held that "dominion and property in navigable waters and lands under them [were] held by the King as a public trust," citing the Magna Carta. [Emphasis added]. Consequently, under the public trust doctrine, the King did not have the power to abridge "the public common of piscary." (i.e., the right of fishing). Since the new state governments now had the same rights as the English crown and parliament, the common law doctrine would be recognized in the United States.

Three states have actually attempted to place that doctrine in their state constitutions: Alaska, North Carolina and Louisiana. In Alaska, a suit was brought to challenge a proposed 1998 ballot initiative on wildlife management on the ground that the state constitution gave the legislature the sole and exclusive right to manage fish and wildlife, and therefore, any state ballot initiatives regarding such management would be inappropriate. Although the lower court supported that contention and blocked the pending ballot initiative on the method of trapping wolves, in August 1998, the Supreme Court of Alaska over turned the lower court decision and let the ballot initiatives proceed. (Delightfully, the initiative failed in the November election). In an opinion issued in January 1999, the Court held that the constitutional history clearly demonstrated by the debate that the provision was not intended to exclude ballot initiatives on such issues. However, the common law public trust doctrine was not the subject of the court's determination; rather, the specific language of the constitutional provision and the history of its consideration at the Alaska constitutional convention.

In the pending NTA actions, each state has approached the issue differently in bringing the matter before the courts. In Arizona, multiple plaintiffs will seek a civil declaratory judgment that the trapping ban is void under the common law public trust doctrine.

In California, individual trappers, the NTA and the California Trappers Association moved to intervene in a civil action filed by the National Audubon Society and others to challenge the recently passed log-hold trap ban. Audubon has taken the position that the ballot initiative is in conflict with the federal Endangered Species Act and that since seven endangered birds are predated upon by non-native fox that only can be appropriately controlled by the use of the leg-hold trap, the state provision is pre-empted by the ESA. Regardless of the court's determination on the Audubon legal theory, the common law public trust doctrine issues will be raised in the trapper portion of the case.

In Colorado, the issue will be pursued in criminal actions where trappers have been (by agreement) cited for using the leg-hold trap. The defense will be that the constitutional provisions banning the trap is in legal conflict with the basic duties, responsibilities and obligations of the government to manage, protect and conserve the wildlife renewable resources that cannot be delegated to a ballot box determination. Hence, the ballot provision would be void. It is anticipated that all three cases will have reached the highest court in each state by election time in the year 2000 when there will sadly, and undoubtedly, be ballot issues on wildlife subjects in some of the 24 states that permit such a procedure.

The NTA is grateful that many state and national sportsmen's and conservation organizations have financially supported the legal actions, including the Archery Manufactures & Merchants Organization and the National Rifle Association. If successful, the common law public trust doctrine will block further ballot initiatives on wildlife and fish resource management subjects thereby saving literally millions of dollars and thousands of hours spent in state campaigns involving such issues.

Although the common law public trust doctrine has some age on it, the NTA and others believe it is still a viable legal concept that should be recognized by the courts. To paraphrase Shakespeare, "The common law public trust doctrine hath not been dead, though it hath slept." Well folks, 'tis time for a legal wake up call!