# Legislative abandonment of Public Trust Doctrine



## MRN (Apr 1, 2002)

I am convinced we need to improve and expand our message. It is clear that the hunting opponent have adopted "economic development" as their clear message. Sure, economic development is a worthy goal. Easy to understand. Everyone wants that. However, our message has been less clear, but represents something that is much much more important.

We need to make it clear that we are working for the preservation of a public resource. The Public Trust Doctrine is on our side. It is there to protect these publicly owned resources. " Management of our natural resources is the administrative responsibility of government (the sovereign) and that government cannot turn that responsibility over to someone else." (e.g., the economic development folks). Hunters are the only conservationists, and commercial interests are the "greedy" ones here. I truly believe that many legislators do not understand their duties. They understand it for "clean water", but not for wildlife.

Public Trust Doctrine appears in the Constitution of North Dakota "ARTICLE XI- GENERAL PROVISIONS - Section 27. Hunting, trapping, and fishing and the taking of game and fish are a valued part of our heritage and will be forever preserved for the people and managed by law and regulation for the public good."

It is further codified in the North Dakota Century Code, " 20.1-01-03. Ownership and control of wildlife is in the state - The ownership of and title to all wildlife within this state is in the state for the purpose of regulating the enjoyment, use, possession, disposition, and conservation thereof, and for maintaining action for damages as herein provided."

It must be pointed out when any proposed legislation goes against these two articles of ND law. There is no public good in many of these bills.

There are even some public trust decisions related to non-residents use of a resource: Leydon v. Greenwich, - CV950143373S, 1998 CT Federal and State Cases Lexis 1883 (Conn. Super. Ct. July 8, 1998) - held that non-residents do not have an automatic right to beach access in Greenwich Point Park. The Court held that there was sufficient evidence that opening the beach up to non-residents would have a significant negative environmental impact.

This is a pretty good web site: 
http://www.responsiblewildlifemanagemen ... ctrine.htm

We aren't working for our own benefit, we are working for the public good and we have the constitution and century code behind us.

M. (repeating Bioman's ideas)


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## bioman (Mar 1, 2002)

MRN:

I am so thankful that you have taken up the public trust doctrine torch. Send me a pm with your personal e-mail. I have two public trust documents that you must read. Also, Dan B., I'm not sure what your legal practice speciality is, but I would also like you to read these documents. You may know some colleagues that may be able to take up this fight.

The most famous public trust resource case that established and clarified public trust doctrine was in California and centered around Mono Lake in the Sierra Mountains. The case was National Audubon Society v. Superior Court Alpine County, (Audubon) 33 Cal. 3d 419, 189 Cal. Rpt. 346 (1983).

A couple of excerpts to ponder:

One of the most important findings of Audubon was that "The public trust is more than affirmation of the state's power to use public property for public purposes. It is an affirmation of the duty of the state to protect the people's common heritage of streams, lakes, marshlands, and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust."

The Audubon Court recognized that stream flow, the stream channel, its invertebrates and algae, riparian vegetation and associated fauna all interact as an integrated ecosystem. The Audubon Court effectively tied the protection of public trust interests to the perpetuation of natural resources (Mono Lake, its inflows, natural resources and ecological aspects) for their innate values, not to private off-site uses of water.

IMO, the second excerpt can be tied to guides and outfitters that monopolize and degrade the resource.

A personal challenge to those on this site that cherish your natural resource opportunities in the State: take a few minutes and go and educate yourself on the public trust doctrine concept. It will invigorate your faith and your belief in those resources held in the public trust.

Lastly, if anyone on this site can get a hold of these three documents, I will be forever indebted.

1. Public Trust Rights, prepared by Helen F. Althaus for Office of the
Regional Solicitor, USDI, November 1978.Portland Oregon.
421 pages.

2. The Public Trust Doctrine in Natural Resources Law and Management: A Symposium. University of California, Davis Law Review , Winter 1980, Vol. 14, No 2.

3. Symposium on the Public Trust and the Waters of the American West:
Yesterday, Today, and Tommorrow. Environmental Law, vol19, No. 3
Spring 1989. Northwestern School of Law of Lewis and Clark
College.


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## MRN (Apr 1, 2002)

Thanks for the message.

It just took me time to realize that PTD was the essense of everything we are saying, and that we (incorrectly) all assumed it to be self-evident to everyone. Some legislators just don't understand their jobs.

M.


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## bioman (Mar 1, 2002)

MRN:

I sent the documents, so enjoy the reading. I have the author's e-mail, so if you have any questions, let me know, and I will get you in touch.

Also, if anyone else is interested in reading these two articles, send me a pm, and I will forward the documents.

Cheers!


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## MRN (Apr 1, 2002)

I like this quote:



> The keystone for protecting the public's resources under the public trust doctrine is that the State must administer its trust interests consistent with trust purposes and values. The duties imposed upon the State are those of a trustee, not simply the duties of a business manager trying to cut a deal. The key to carrying out the public trust duties of the State are its powers to regulate as well as protect the State's fundamental rights in trust properties and the use of those properties.


M.

(these lines should be included in every letter and email to a natural resources committee member)


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## bioman (Mar 1, 2002)

A fascinating, must read. This article specifically addresses the public trust ownership issue, access, and commercialization issues. This story rings so true in No.Dak.

http://espn.go.com/outdoors/conservatio ... al_MT.html


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## MRN (Apr 1, 2002)

Ya, you could just change a few words and the same applies here.

I was thinking about how it got this far out of whack. I dug out a letter I got from the Govna during "phesantgate" - it is clear he sees this whole thing as an economic issue. Perhpas that is where the anti-hunting forces got such vigor.

Does anyone know when the "hunting stuff" appeared in the constitution? Recently? Long ago? From the start?

M.


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## nodaker (Jan 25, 2003)

Whatever happens this legislative session, Quality and public trust must be brought to the forefront.

Quote: 
The keystone for protecting the public's resources under the public trust doctrine is that the State must administer its trust interests consistent with trust purposes and values. The duties imposed upon the State are those of a trustee, not simply the duties of a business manager trying to cut a deal. The key to carrying out the public trust duties of the State are its powers to regulate as well as protect the State's fundamental rights in trust properties and the use of those properties.


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## bioman (Mar 1, 2002)

To anyone attending the meeting Thursday, especially those who are going to testify:

Please do not forget to state the importance of the public trust and how it is the duty of the North Dakota Game and Fish Department to best manage the trust resources. This is a very powerful tool and should be reinforced several times tomorrow.

Good Luck


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## MRN (Apr 1, 2002)

Bioman,

I believe the message is getting across - everyone is pointing out that this is a public resource that must be protected. Both Mike and Dan did nice bits mentioning that we are talking about the hunting resource & opportunities & quality - not just ducks per se. The biology group guy made this a strong point too.

You know you are having an effect when the opposition is doing their best to obfuscate the issue - a tall twitchy guy from the GNDA did his best to try and confuse what resource we were talking about -- Ducks? this isn't about duck... blah blah -- came across as pretty confused. I trust most of the reps aren't so addle minded.

This message isn't going to covince the rabid folks, but the reasonable folks were listening and probably being swayed by the rational and reasonable arguments.

Mark


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