Taking the Trust: An Open Letter to the Florida Fish and
Wildlife Conservation Commission (FWC)
Chairman Yablonski, Commissioners, and Executive Director Wiley:
As you are no doubt aware, your decision to authorize a hunting season (“harvest”) for Florida's black bears in 2015 attracted worldwide attention to the role of your agency in wildlife management. We do not know to what extent you anticipated such intense
interest in your activities, but we assume you realize that a decision to hunt Florida's bears again in 2016 will incite even greater fervor among the general public, particularly since it is likely to coincide with the planned delisting of the grizzly bear in the Greater
Yellowstone Ecosystem (GYE) by the U.S. Fish and Wildlife Service (USFWS). In the wake of the killing by a trophy hunter of the lion known as Cecil in Zimbabwe, popular awareness of the plight of charismatic megafauna is perhaps at an all-time high, amplified by the power of social media.
To many observers of wildlife management in the United States, at both the state and federal level, it appears that such public attention is often dismissed as lacking in substance, ill-informed, or overly sentimental. It is important for you to understand that such characterizations are overbroad and unwise, for the most fundamental principle of wildlife management (in both the U.S. and many other jurisdictions worldwide) is the concept of wildlife as a public trust. Under the Public Trust Doctrine (PTD), wildlife belongs to the public and is held in trust for the public by government. The public, as the beneficiary of the trust, has the right to ensure that its trust is being respected by the professional wildlife managers who act as trustees, and a concomitant right to hold them accountable for their accomplishments and their failures.
Our organization can fairly claim to represent tens of thousands of people, mostly Floridians, but also many other U.S. citizens who take a keen interest in our state. As representatives of the public, we hereby assert our right to hold you to account for your
choice to include hunting in your management of the Florida black bear. Our evaluation of your performance will proceed along two broad fronts: conformity with the strictures of the Public Trust Doctrine, and adherence to the related requirement that wildlife
management be guided by the best available science.
Wildlife Is A Public Trust
The Public Trust Doctrine has exceedingly deep roots in our legal system. The seminal scholarship of Professor Joseph Sax, who expanded the application of the doctrine beyond its early focus on water law to a host of environmental issues, traced its origins
through centuries of American and British case law and reached as far back as the Magna Carta and thence to Roman law. Sax's pioneering 1970 paper, The Public Trust Doctrine in Natural Resources Law, was motivated in part by a widespread realization that special interests had come to exert an undue influence on the legislative process and had, in many cases, captured the very agencies that were instituted to regulate them. In its 2014 obituary of Prof. Sax, The New York Timesallowed his own words to summarize his position:
“[P]owerful and organized minorities are having their way at the expense of the
majority,” he said in an interview with The New York Times in 1969. “Remote,
profit-seeking interests have become skillful in manipulating governmental
processes to their own ends, and often to the virtual exclusion of citizens who will
Widely recognized as our country's greatest exponent of the Public Trust Doctrine, Prof. Sax emphasized a broad public interest in diffuse natural resources and sought, in the words of Yale Law School's Carol Rose, to protect the public interest from “private
stakeholders' importuning.” In her 1998 paper, Joseph Sax and the Idea of the Public Trust, Rose notes Sax's insistence that government agencies pay attention to the ways in which public interests may change over time, make informed and accountable choices, and engage in “close scrutiny of private give-aways of environmental resources.” More recent scholarship, such as Antony Scott's 1999 paper, Trust Law, Sustainability, and Responsible Action, has highlighted the responsibility of trust managers to preserve trust assets for the benefit of future generations. When faced with uncertainty, trust managers must respect the precautionary principle and use more prudence than they would in the conduct of their own affairs. As we shall see, the FWC's conduct of bear management runs afoul of every dimension of the doctrine, properly understood. In contrast to this broad, public-interest interpretation of the Public Trust Doctrine, professional wildlife managers in the United States have enshrined in their guiding principles a distortion of the doctrine that illegitimately favors special interests. Their paradigmatic North American Model of Wildlife Conservation (NAM) was devised by hunters and is propagated by agency personnel who all too often appear in thrall to hunting interests. Seeking to preserve the ability of hunters to gain access to public trust assets and to deplete those assets, through its so-called “democracy of hunting,” the NAM epitomizes the very agency capture that Sax sought to prevent, conferring upon highly motivated narrow interest groups a wholly unwarranted level of control over the management of the public's wildlife assets.