Policy Options
State Wildlife Agency Funding Policy Options
October 27, 2022
Fact Sheet
U.S. Public Trust Doctrine and Wildlife
Overview
The U.S. public trust doctrine (PTD) refers to the duties of a state government (trustee) as well as the privileges and responsibilities to the U.S. public (beneficiaries) in relation to the natural environment. It arises in state and federal statutes, but primarily in common law. Wildlife have unique attributes in the PTD, as they are both part of the trust (resources states are obligated to protect) and beneficiaries of the trust (benefiting from the trust’s proper management). “Trustees” include government at all levels, such as state executive and legislative bodies, wildlife commissions, wildlife managers, and law enforcement officials. While the PTD is developed and enforced by the judiciary, state legislators can consider policy options to codify and strengthen express PTD protections for wildlife, lands, and waterways.
Key Points
Key Point 1
All states have constitutional “police powers” to enforce wildlife protection and preservation laws, including seeking out and enforcing against illegal uses and recouping financial loss in the public interest. (Hughes 1979 US Supreme Court Decision)
Key Point 2
All states are signatories to the Interstate Wildlife Violator Compact, which declares that “Wildlife resources are managed in trust by the respective states for the benefit of all residents and visitors.” (Wildlife Violator Compact)
Key Point 3
Several states have established some wildlife trustee duties by statute (DE, MD, RI, and TX) or in the state constitution (HI). Case law has also expanded the application of the PTD to wildlife in some states. (SSRN)
Direct and Indirect PTD Policy Options:
- Codifying Public Trust Duties: Maryland SB 987 explicitly asserts that the PTD creates a duty of state government to “protect, manage, and conserve fish and wildlife.” Some states apply PTD duties to wildlife in certain settings or contexts, such as for marine fisheries (Florida 379.2401) or endangered species (Delaware Title 7).
- Establishing Broad-Based Public Funding: Some states assert greater fiduciary responsibility for conserving wildlife through natural resource trust funds (New Mexico SB 9, Wyoming SF0041, Minnesota ENRTF) or dedicated tax sources (Missouri IV Section 47(a) – Sales, Montana HB 932 – Cannabis, Hawaii SB1396 – Lodging).
- Strengthening State Review: A few states encourage or require input from state natural resource agencies for actions that impact wildlife, such as land use planning (California AB-1889, Maryland HB0731, Wisconsin NR 115), transportation (Nevada AB112, California SB-145), and energy development (Colorado SB24-212, Washington HB 1216).
- Limiting Private Uses of Wildlife: The PTD imposes a duty on governments to limit private uses of wildlife. Some states have explicitly prohibited these activities, such as live animal markets (Oregon HB 4128), wildlife trafficking (Maryland HB0052), fur products (California AB-44), or game farms (Montana SB 361).
- Improving Access to Nature: The PTD asserts that all humans are beneficiaries of nature, and many states have enacted policies to help fill nature access gaps, including for youth (Washington HB 1677, Utah HCR004) and residents of urban areas (Maryland SB0923, Virginia HB 1510).
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