Public Trust Doctrine Under Attack

Blind, but now I see
Moving from Texas, my motherland, to Montana, the home of my heart, I went, and still go through culture shock. The biggest culture shock for me was public land ownership.

Montana is rich with Federal and State Public Lands, abundant fish and wildlife, which was a tremendous pleasure, especially coming from drought cycle Texas and a short drought and tumbleweed purgatory sentence in western NE. But this was not the reason for the culture shock. The culture shock was in the land ownership. Having owned or had access to private land in TX, I didnt have to worry about where to fish or to hunt. We primarily fished and hunted on grandpa's farm and ranch lands in south central Texas. I grew up with the belief that the landowners not only owned the land, but all the rights to the land and the water and the wildlife. Those deer, those quail, those pheasants and turkeys - they were mine, or in the case of grandpa's farm and ranch, his, by right as a landowner.

Not once in over 35 years had I ever heard the phrase - "Public Trust Doctrine".

In 2007 I moved to Montana, trying to get here for over a decade. I had never been to Montana before, did not know anyone from this land to rave about it. I liken it to the old pioneer bug that bit many people, instinctively driving to an unknown land. Montana is my home, so much so that since 2001 when I left Texas, I had not been back there, until this last October when my father passed away.

Upon arriving in Montana, my first culture shock came with fishing access. My husband pulled over to the side of the road, we grabbed our rods and he began to walk down the bank to the stream. I objected, telling him he was trespassing, that he could not just walk on other peoples property to go fish. He explained Montana was not like that, there was stream access. I was not convinced. Deep seeded private land rights, like cult brainwashing, were not so easily swept aside. I expected a landowner or game warden to confront us with trespassing the whole time.

Driving up to the mountains south of Bozeman and hiking was the next shock. No toll booth requiring a paid permit to enter; no private landowner permission required for the vast tracks of gorgeous public land. Again and again I was confronted with the openness and freedom of Montana - the abundance of public lands and stream access. I still have difficulty wrapping my head around these concepts at times.

In April 2012 I joined a local conservation hunter organization in Bozeman. It was like an immersion into another world. Agency acronyms were flying around needing a pocket reference guide to know who was who. More public land was brought to light - Fish, Wildlife & Parks Wilderness Management Areas (FWP's WMAs). Was there no end to Montana's abundance? Wildlife was public, the fish were public, water was public.

But with all this abundance, I also learned of the threats that jeopardized it - special interests, politics, privatization, commercialization and Texas billionaires. I already knew what the land looked like in that landscape - Texas, where about 1.9% is public land. I also heard mentioned -  the Public Trust Doctrine and with it the North American Model of Wildlife Conservation - the polar opposite to what I grew up with - the European Model of land ownership, or as some call it - the Texas Model. I began to research and immerse myself in the details of the Public Trust Doctrine. 

Like the slave trading captain John Henry Newton who converted to Anglican Christianity, later writing Amazing Grace - "Was blind, but now I see," I too saw the light. For the same reason I never went back to Texas, I don't want to see Montana turned into a Texas. So I began to zealously fight for the Public Trust in Montana and the Greater Yellowstone Area states.

Public Trust Doctrine
The Public Trust Doctrine (PTD) is viewed as foundational, a cornerstone of the North American Model of Wildlife Conservation. The 1842 U.S. Supreme Court case, which resulted in the Public Trust Doctrine began with, "Chief Justice Roger Taney, determining that the lands under navigable waters were held as a public trust, based the decision on his interpretation of the Magna Carta (A.D. 1215). The Magna Carta, in turn, drew upon the Justinian Code—Roman law as old as western civilization itself: 'By the law of nature these things are common to all mankind — the air, running water, the sea, and consequently the shore of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitations, monuments, and the buildings, which are not, like the sea, subject only to the law of nations.' " (The Future of Public Trust, John Organ and Shane Mahoney).

The Public Trust Doctrine was further expanded in 1896, when the Supreme Court included wildlife into the Public Trust (Geer v. Connecticut). Then in the 1970's a Harvard legal scholar, Joseph Sax, included Natural Resources into the Public Trust.

Seven years ago Organ and Mahoney wrote, "Today, however, what came to be known as the Public Trust Doctrine, and with it the North American model of wildlife conservation, are under siege. Increasing privatization of wildlife (where landowners restrict access to wildlife for personal profit), a boom in the establishment of game farms raising wildlife for sale, the animal rights movement, and other trends are continually eroding the underpinnings of the Public Trust Doctrine. These developments threaten the legal mechanisms that allow for the protection and conservation of wildlife as a public resource. To protect the Public Trust Doctrine, conservation practitioners must consciously revisit its foundations so they can better understand its benefits, as well as the risks that citizens face if wildlife is not robustly protected by public ownership and government trust."

As President Theodore Roosevelt adamantly stated, "Here is your country. Cherish these natural wonders, cherish the natural resources, cherish the history and romance as a sacred heritage, for your children and your children's children. Do not let selfish men or greedy interests skin your country of its beauty, its riches or its romance." Roosevelt helped to give birth to conservation.

“Defenders of the short-sighted men who in their greed and selfishness will, if permitted, rob our country of half its charm by their reckless extermination of all useful and beautiful wild things sometimes seek to champion them by saying that “the game belongs to the people.” So it does; and not merely to the people now alive, but to the unborn people. The “greatest good for the greatest number” applies to the number within the womb of time, compared to which those now alive form but an insignificant fraction.

Our duty to the whole, including the unborn generations, bids us to restrain an unprincipled present-day minority from wasting the heritage of these unborn generations. The movement for the conservation of wildlife and the larger movement for the conservation of all our natural resources are essentially democratic in spirit, purpose, and method.”

On the National Front
The Public Trust Federal Lands, of which you and I are all landowners, are under attack by neo carpetbaggers under the guise that "returning" these Federal Lands to the States will bring about better land management from the local level. Bovine Blossoms! This is a lie from the very foundation of the selling point. These lands NEVER BELONGED TO THE STATES, therefore there is nothing to "take back" or "return". Not to mention that Additionally, these public land thieves are not accurately representing economically what it would entail for our State governments to take over management of these Federal Public Lands. The result would be an enormous bloated state government which state taxpayers would somehow have to pay for. A major fire alone would bankrupt the State. And finally, there is the lack of public access, which on a State level is nothing like the abundance of public access we enjoy as Federal Land Owners.

Besides the current Federal Land grab movement to transfer Federal Ownership of land to the States, there is an insidious Bill which is related to this movement. While the Federal Government would retain title to the lands, the State governments would have the administrative authority for them, while leaving the Fed with the ownership bills. This bill is H.R. 1526, deceptively named The Restoring Healthy Forests For Healthy Communities Act . This bill has passed the House and is on its way to the Senate. 
 
The Montana Front 
Here in Montana, the "siege" against our Public Trust Doctrine is being intensified by special interests that seek to profit by the privatization of our Federally and State held public lands, as well as our wildlife and resources. Some of these land thieves are using our legislature to drive their agenda, using our Environmental Quality Council Interim meetings SJ15 Work Group, chaired by Sen. Jennifer Fielder. Our taxpayer dollars are being used to achieve these special interest objectives - privatization of our Federal Public Lands and resources.

The Deceiver From Within
I can the see greed of certain people, special interest groups. I don't necessarily agree with the mentality of people that would steal our heritage, our Public Trust to privately profit, personally privatize and generally piss on Public ownership. But the worse threat, in my opinion, are the public servants, who are charged with the stewardship of our Public Trust, who would seek to undermine the Public Trust Doctrine from within - the Trustees and Trust Mangers: our legislators, executors, commissioners and employees of our natural resource agencies. Public servants we should be able to trust with the management of our wildlife and public lands/waters. Servants who whisper that the Public Trust is obsolete (if you say it often enough it will become the truth?); servants who speak of throwing their lot in with private landowners - privatization. Back room deals are done, neo conservationists are brought in to supposedly represent the conservation public into making deals on the conservation Public's behalf - deals which benefit corporations and privatization. Servants who use the Public in working groups, like shields, to hide and mask their privatization agendas, instead of doing the scientifically and legally mandated environmental reviews, statewide management plans that are part of the Public Trust Doctrine and North American Model of Wildlife Conservation. 

In my opinion, of all the threats to our Public Trust, the greatest and most insidious is that from within,  those who receive a paycheck of our dollars to manage our Public Trust; instead, they serve the special interests that would seek to rob us of our greatest treasure. 

Theodore Roosevelt stated, "Our government, National and State, must be freed from the sinister influence or control of special interests. Exactly as the special interests of cotton and slavery threatened our political integrity before the Civil War, so now the great special business interests too often control and corrupt the men and methods of government for their own profit. We must drive the special interests our of politics." 

It's not just "politics" we need to free from the "sinister influence or control of special interests", we must drive these special interests out of our natural resource agency, out of our Fish, Wildlife & Parks if we are to restore our Public Trust Doctrine - protecting our resources now and for future generations. 

Kathryn QannaYahu
www.EMWH.org