Montana Wildlife Newsletter Articles

Our Hunting and Fishing Future: Upholding the Public Trust

"Above all, we should realize that the effort toward this end is essentially a democratic movement. It is…in our power…to preserve game…for…all lovers of nature, and to give reasonable opportunities for the exercise of the skill of the hunter, whether he is or is not a man of means."

– Theodore Roosevelt, 1893

North America faces a pervasive crisis in wildlife conservation: the growing commercialization and privatization of wildlife and the erosion of the Public Trust that characterized their management for a century. The trend toward treating wildlife as a private commodity gnaws away, cancer-like, on our traditional institutions. At the heart of this crisis lies a persistent effort to convert wildlife from a public to a private resource. Such a transfer undermines the successful system of wildlife management and conservation embedded in our culture by four generations of Americans.

Aldo Leopold wrote: "To think straight on recreational quality, an historical perspective is essential." Knowing our history can help us understand the critical importance of public ownership of wildlife, and the serious implications of undermining that public trust.

The King's Game

Most legal scholars build the basic foundation of wildlife law on principles found in early Roman law. The idea was that wild animals, by their very nature, do not have owners. The concept was that wildlife could belong to the person who could kill or capture them. Thus, through the process of taking, wildlife could become the possession of an individual as a matter of personal right. Personal rights, however, always have been dependent upon whatever form of government people either endured or enjoyed.

From around 410 A.D through Norman times, the English government was a succession of kings. The king's interest in wildlife, land, and individual rights was intense and usually selfish. For the most part, wildlife belonged to the king, who as the sovereign, maintained control over the wild animals and gave others permission to hunt. One historian noted the following as an example of a penalty for taking the king's deer: "Whoever shall kill a stag, a wild boar, or even a hare shall have his eyes torn out."

A revolt of English barons in 1215 led to the signing of the Magna Carta, a document that confirmed that the king held certain powers 'for the good of the realm' and that the barons held rights independent of the king's will. Still, long after the Magna Carta was signed, wildlife in Europe continued to be seen as property of the elite. In 1389, it was decreed that the pursuit of game was restricted to those qualified by the ownership of land. The decree denied any person without a proper landholding the right to even possess dogs or equipment used in taking game. Gamekeepers in the employ of the privileged were empowered to seize dogs, guns, and hunting equipment and to search suspect's homes. If an offender happened to be killed in the process the gamekeeper was immune from prosecution. Class warfare persisted for centuries.

At the time of the American Revolution, legally authorized hunters in England constituted less than one half of one percent of the population, and poaching was the major rural crime. While this class feud between people of privilege and people of common means went on, six species of large mammals on the British Isles slipped into extinction: the reindeer, brown bear, beaver, wild boar, wolf and aurochs. Game management was (and still is in much of Europe) nothing more than animal husbandry, designed to produce something to shoot at.

Origins of the Public Trust in Fish and Wildlife

When Europeans came to North America, they found a continent rich in fish and game that had sustained Native Americans for about 15,000 years. To the Colonists, hunting and fishing became routine, and they felt they had the natural right to do so. When the people of the United States declared their independence, we were a people with a burning belief in a philosophy that held "all men were created free and equal before God and each other." In 1776 it was a radical thought and it took a Declaration of Independence, a Revolutionary War, a Constitution and a Bill of Rights to launch the American dream. When the colonists liberated us from the control of kings they were focused on liberty, individual freedoms, and creating a system where free people governed themselves. The issues of water, fish and wildlife were not mentioned in the Declaration of Independence, Constitution, or Bill of Rights. The legal void was filled by a series of court decisions.

The critical first decision entailed a New Jersey oysterman engaged in a dispute with a landowner about access to water and oysters in the 'New World.' The landowner traced the title to his property back to a land grant the king of England made to the Duke of York when we were still part of the British Empire. The grant included the "…fishings, hawkings, huntings and fowlings." The question was whether these royal perks survived when our democratic form of government was created. The highest court of our emerging nation ruled: "When the revolution took place, the people of each state became themselves sovereign; and in that character, held the absolute right to all their navigable waters, and the soil under them; for their own common use, subject only to the rights since surrendered by the constitution to the general government." The ruling continued: "When the people of New Jersey took possession of the reins of government, and took into their own hands the powers of sovereignty, the prerogative and regalities which before belonged either to the crown or the parliament, became immediately and rightfully vested in the state." In a later case, involving illegal game animals being taken across state lines, the U. S. Supreme Court got more specific. The 1896 ruling included the following language: "… the development of free institutions has led to the recognition of the fact that the power or control lodged in the State, resulting from the common ownership, is to be exercised, like all other powers of government, as a trust for the benefit of all people, and not as a prerogative for the advantage of the government, as distinct from the people, or for the benefit of private individuals as distinguished from the public."

These court cases laid down legal precedent for the idea that fish and wildlife cannot be owned as private property, but are held in trust by the government for the benefit of all the people.

Wildlife Restored

An unprotected public resource of commercial value set the stage for a tragedy of continental magnitude. Many species of wildlife were simply taken to market and to the brink extinction. The great herds of elk, pronghorn, deer and other wildlife we take so much for granted today are wildlife populations that have been restored through a century of citizen conservation. Wildlife is here today not just by the grace of God, but through the sacrifice and sweat of citizens concerned about wildlife. In an epic battle stretching over 100 years, a small core of North American-hunter/naturalists including U.S. President Theodore Roosevelt and Canadian Prime Minister Sir Wilfred Laurier placed, controls over the exploitation of public resources. The checks and balances they created became the most successful system of wildlife conservation ever. Today's abundance is a phoenix risen from the ashes of a decimated continent.

Our conservation predecessors instituted a transparent system of wildlife conservation, open to all people. They also fostered public concern for wildlife, invented a profession of wildlife management, and taxed themselves on behalf of wildlife. They also generated a large, well-reasoned system of protected places where all wildlife-hunted and nonhunted - may thrive. Finally, they instituted a form of wildlife law enforcement based largely on self-policing and established international treaties to conserve wildlife.

As this golden age passed it became our legacy, a marvelous example of the creative power of the common people, who for decades provided whatever was needed - often scarcely giving it a thought. The colossal success of this unique system of wildlife management is based on seven primary principles:

1. Wildlife as a public resource managed as a public trust;
2. The abolition of markets in dead wildlife;
3. Wildlife surplus allocated by law;
4. Wildlife can only be killed for just cause;
5. Wildlife as an international resource;
6. Science as the proper tool for the discharge of wildlife policy; and
7. The democracy of hunting.

Erosion of Wildlife Policy

Unfortunately, there were some exceptions to the model, and some places such as Texas took a different approach. Hanging price tags on wild animals and enabling private individuals to profit from them - particularly in the forms of game ranching and private "trophy hunting" preserves - is eroding the very policies and management that made wildlife conservation such a success in North America. For game ranching and private hunting clubs to become viable business enterprises:

• wildlife must be sold to the highest bidder;
• markets in dead wildlife are resurrected;
• wildlife is taken and owned privately;
• wildlife can be used for any purpose; and
• wildlife as a commercial commodity need not be concerned with the public good.

The deterioration of our unique, democratic system of wildlife management poses many dangers including: increased poaching, genetic manipulation, disease, predator eradication, loss of biodiversity, and wildlife management (or animal husbandry) based on economic markets rather than a natural association of wildlife with its environment.

Treating elk, deer, pronghorn and other wildlife as private property has led to genetic manipulation of animals, the introduction of exotic species, and other threats of varying degrees which threaten the integrity of our native wildlife. Perhaps the most fatal flaw is the threat these practices pose to the essence of the North American Fish and Wildlife Conservation system which for a century or more has been based on fair chase pursuit and broad public participation in the hunt.

Certainly it's important for private landowners who care about wildlife to receive a genuine level of appreciation for supporting wildlife on their lands. The public does not expect a totally free ride on private lands that help sustain our wildlife legacy. However, such compensations should not jeopardize the public ownership of wildlife, scientific-based wildlife management or hunting opportunities for the general public. Pay-to hunt businesses offer a very appealing product to people who can afford to pay the price. But market-driven hunting operations effectively alienate most American hunters from hunting "their" wildlife. They also change the nature and perception of hunting from an act of securing food from the land to a frivolous pastime or sport of the affluent, and take us closer to an aristocratic model of animal husbandry.

Upholding the Public Trust

Sadly, attempts persist to privatize and commercialize public wildlife, to reap financial rewards from Montana's abundant game including attempts to create market driven, transferable licenses for landowners to broker. Such a wildlife commercialization scheme would cater to the financially privileged, promote wildlife husbandry for trophies and preclude most everyday hunters. Thanks to the Montana Wildlife Federation, our affiliate clubs, and members throughout Montana, we have successfully fended off many of these backdoor attempts to steal our public wildlife and erode our democratic traditions of fair and equitable access for all. We have made it clear that we will battle attempts to water down or ignore our laws that offer equitable public opportunities. We must remain ever vigilant in defending the Public Trust - our hunting and angling heritage depends on it.

The Montana Wildlife Federation believes that the preservation of our fish wildlife resource must continue to be managed as a public trust, be accessible to all, remain secure within a landscape of sustainable habitat, and be available to future generations. If we sustain these beliefs we will preserve our American hunting and angling tradition so vital to the culture and quality of life in Montana.