Public trust or Trojan horse?

by Cat Urbigkit

Former Commissioner Tracy Hunt of Newcastle spoke with the Wyoming Game and Fish Commission last week about the public trust doctrine and what it could mean for the commission.

Commission Chairman Doyle Dorner explained that he had requested that Hunt and Saratoga rancher Kurt Bucholz attend the Lander meeting to discuss the public trust doctrine and instream flow.

Hunt took the commission through a history of the legal theory that has become known as the public trust doctrine, including its evolution from addressing navigable waters to its expanded use in wildlife management.

Hunt noted that in 1990, when Senator Mark Harris of Sweetwater County proposed legislation that would designate Wyoming's wildlife a "public trust," this seemed like "benign, feel-good legislation."

But it wasn't, according to Hunt. In reality, it was "a Trojan horse that was pushed into the legislative chambers," Hunt said, and thankfully, it didn't pass.

"No one told us ... (that the legislation) would act as a foothold from which to launch copious litigation," Hunt said, and severely impact how the WG&F Commission could do its job.

Hunt noted the public trust doctrine has been described as "a secret weapon of environmental activists" because of its "ability to override prior legal claims" and make any claims of the "taking" of private property irrelevant.

Hunt told the commission, if you like Endangered Species Act abuses, "you're really going to like this."

Hunt said Harris' proposed legislation "was sold as a Pledge of Allegiance. It is not a Pledge of Allegiance."

Hunt noted of the organizations supporting the public trust legislation in Wyoming, one organization has the WG&F's own Chris Madson on its board.

Hunt said the public trust doctrine is a "surreptitious attack" on the authority of the WG&F Commission and private property rights. The doctrine gives every single member of the public standing to file litigation, Hunt said, and would substitute the commission's judgment to "a panel of judges in a far-away jurisdiction."

Hunt gave each commission a packet of reading material on the doctrine, and urged the commission to "know the public trust doctrine for what it is and not for what it sounds like."

The next speaker was Kurt Bucholz, who gave a general overview of the instream flow issue and the proposed changes in Wyoming's instream flow law that are being advocated by the WG&F Department. Bucholz's message is clear: "The Game and Fish Commission should tell their Department staff to back off."

The connection between the public trust doctrine and the instream flow issue wasn't really explained at the commission meeting, but is easily explained from examining the WG&F's Instream Flow Program programmatic review and five-year plan. That document, written by WG&F's Tom Annear and Paul Dey, 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.

The plan stated, "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."

WG&F's Annear is also listed as the publications manager for the International Instream Flow Council, according to that organization's website.

"The Instream Flow Council is founded on the principle of the public trust doctrine," according to the website.

Washington State University's Center for Environmental Education predicted that the public trust doctrine 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 the doctrine, 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 instream flows, even where official instream flows have not been designated.