Instream flows: In the public trust?
Part 3
by Cat Urbigkit

This is the final issue of a three-part series on instream flow and a proposal to establish an instream flow for a 8.18-mile segment of Pine Creek, from the Fremont Lake dam to the confluence with the New Fork River south of Pinedale.

The Wyoming Game and Fish Department (WG&F) is advocating the instream flow for Pine Creek, using a combination of stored water and direct flows, as well as using new water rights and rights already held by the WG&F and the Town of Pinedale. The agency currently has applications before both the State Board of Control and the State Engineer's Office which, if approved, would establish the Pine Creek instream flow.

The first two articles in this series focused on the applications and the agency's overall intent. This final article examines what the "public trust" means. It's something the instream flow program managers are advocating.

The "public trust doctrine" has been getting a lot of lip service in the past few years, without any real explanation of what it is. Yet just a few years ago, Wyoming legislators considered a bill backed by the Wyoming Wildlife Federation that would have designated the state's wildlife a public trust.

The Institute for Wildlife Protection and its senior ecologist Dr. Randy Webb refer to the "wildlife trust doctrine" in its petition to have sage grouse granted endangered status.

"The wildlife trust doctrine devolves onto the states, and it is difficult to reconcile the lack of interest in sage grouse with the fiduciary duties of the states in this regard," Webb's 218-page sage grouse status review stated. Webb requested the U.S. Fish and Wildlife Service apply the wildlife trust and public trust doctrine to its review of the petition to list grouse as a federally protected species.

Webb wrote that continuing to allow sage grouse hunting "suggests mismanagement of the wildlife resource because of political pressure within the states. If true, then the states have violated the public trust and the wildlife trust."

Now WG&F is advocating adoption of the public trust doctrine for its instream flow program. The department's Instream Flow Program programmatic review and five-year plan notes the need to change "the legal component" of Wyoming's instream flow program through the public trust doctrine.

The plan stated: "Although the public trust has seldom been acknowledged in Wyoming and many other states, it is the basis for the state's authority over public resources that cannot be abrogated or given away and is a potential tool for supplementing the state's natural resource management authority. While omission from state statute does not diminish the state's responsibility, its formal acknowledgement in statute or the constitution could help affirm the state's trustee role over fish and wildlife resources."

Management of instream flows under the public trust doctrine is the first component of an effective instream flow program, according to WG&F, and this involves two elements.

"First, it asserts a responsibility to actively manage all streams with the jurisdiction of the state or province (not just those with the best fisheries). Additionally, it establishes the goal for agencies to pursue water management strategies and actions that move stream form and function toward their natural condition in any increment whenever possible - realizing that some streams will never be restored to a fully natural condition."

The plan continued, "The WG&F mission statement and strategic plan broadly establish the department's responsibility to manage wildlife resources, but stop short of acknowledging their obligation to manage all streams so they can maintain or achieve their natural ecological function."

According to the WG&F plan, the International Instream Flow Council "considers recognition of public trust principles in agency policies an important institutional need because it may help affirm the legitimacy of agencies for resource stewardship in some situations. ... Even though the department generally abides by its trust responsibilities and authority, recognition of these facts as formal policy could enhance our ability to assert and remain committed to our legitimate fishery and wildlife stewardship authority in some situations."

So just what does the public trust doctrine (PTD) entail? The Washington State University's Center for Environmental Education predicted that PTD may become the most important citizen tool to protect rivers from water developments and users, especially in states with no established minimum instream flows. Environmentalists can use the doctrine to challenge agency decisions and force agencies to choose more environmentally benign alternatives or forego projects.

According to the center, "Its general premise is that a state's natural resources are held in the public trust and even senior, appropriated water users do not have the right to destroy the public's natural resources."

The most significant feature of PTD, according to the center, "is that it can override prior water rights. This means that harmful senior water users can be denied rights in the public trust."

In other words, the public trust doctrine can be used to force minimal instream flows, even where official instream flows have not been designated.

Former National Wildlife Federation attorney Susan Morath Horner had an article dealing with the PTD in the University of Wyoming's Land and Water Law Review in 2000. She noted that the doctrine recognizes state wildlife agencies have not just the right to manage wildlife, but also has affirmative duties for those resources.

"The standard of care owed by the trustee to the trust beneficiaries is the highest the law," Horner wrote.

Horner alleges that the utilization of PTD doesn't harm private property rights. She wrote: "Moreover, it must be understood that because wild animals in their natural state are subject to neither private ownership nor actual state ownership, but 'belong' to everyone, claims of private property 'takings' as a result of wildlife regulation in the public trust fall flat. Therefore, a statutory or constitutional recognition of the public trust doctrine will not create a new body of substantive law nor constitute an assault on private property rights."

Horner called for a "statutory or constitutional refashioning of our system of wildlife management, and resource decision-making in general, so that when agency officials take action they are more apt to consider and fulfill their public trust obligations.

"The trust is an enormously flexible vehicle," Horner wrote. "It can be tailored to respond to virtually any given set of circumstances, yet always remains subject to prevailing themes of conduct that are at the heart of the trust relationship.

Horner said "the first step to making the implementation of trust principles a reality in the everyday management of wildlife is the adoption of a recognizable statutory or constitutional directive."

According to Horner, among the attributes and requirements of a model trust are that it should have identifiable trustees; "a clearly articulated right by the beneficiaries of the trust to challenge those actions that fail to meet trust standards"; and "an elevation of the standard of care by which the trustees' actions are judged."

All beneficiaries of the trust have an automatic right to challenge trustee action failing to meet high standards, according to Horner.

Limiting private communications with decision-makers is needed, according to Horner. "There must be a limitation on the extent to which those who have a personal interest in the outcome of a decision by the trustee may approach the trustee privately with regard to the matter ... Accordingly, while it may not be inappropriate for private interests to have routine communications with lower level agency employees, they should not attempt to privately influence the trustee."

Trustees must not have divided loyalties, according to Horner. She wrote: "This does not mean that the beneficiaries are necessarily masters to the trustee. On the contrary, the frequent purpose of the trust is to save the beneficiary from himself, and to protect him and act in his behalf when he is helpless or misdirected. This is why we establish trusts for minor children who are too young to know what is good for them, and for ourselves in the event of old age or infirmity. We trust our trustees to act in our best interests at all times when we are unable to do so."

Horner used the killing of brucellosis-infected bison leaving Yellowstone National Park to protect livestock as an example of a government action being taken without "any glimmer of the enforcement of the public trust."

Limitations on the use of the public trust doctrine aren't readily apparent. The trustee role was addressed in a Louisiana lawsuit involving a criminal case which questioned the reasonableness of a stop of the defendants by wildlife enforcement officers. The court found that not only were these officials acting as law enforcers, but also as public trustees who were required to act as front-line gatherers of information "pertaining to the appearance, quality, quantity, health and habits of animals taken or regulated."

Horner reported, "This special role gave them greater authority to make routine stops of hunters, if not necessarily to conduct searches."

Horner advised that minimal objective standards of conduct for wildlife trustees should include prohibitions on the privatization of wildlife, no abdication of public trust responsibilities and "Where actions by private persons, whether on private or public lands, have the potential to interfere with the biological sustainability of healthy fish or wildlife populations, such actions should be disallowed."

"Where public health and safety require an action that has the potential to impact wildlife resources, the trustees have a duty to evaluate alternatives and to choose the least harmful alternative," Horner reported.

"The guiding philosophy of the trust concept is the long term conservation of wildlife," Horner said. "Inconvenience or the possibility of economic benefit alone should be insufficient grounds for interference with conservation of trust resources for future generations."