Photo credit:  Nicolás Boullosa

By Professor James L. Huffman

In her report on Judge Holly Brown’s dismissal of a challenge to the Department of Fish, Wildlife & Parks agreement with Ted Turner on the management of Yellowstone Park bison (Bozeman Chronicle, May 12, 2013), the Chronicle article states the following: “Under the public trust doctrine, which applies nationwide, the state has the responsibility to manage and maintain resources like water and land for public use and future generations.”

Only in the dreams of the petitioners does that summary of the public trust doctrine have any relation to the law. Even in Montana, where the public trust doctrine was dramatically revised 30 years ago in two Montana Supreme Court cases, the doctrine has never been found to apply to wildlife or beyond the waters of the state.

The public trust doctrine originated in the English common law as a guarantee of the public right to fish and travel for commercial purposes on navigable waters. In England, navigable waters were limited to those affected by the tides. In the United States, in recognition of the extensive network of navigable inland waterways, the public trust doctrine was generally held to include all waters “navigable in fact.”

Contrary to the Chronicle’s story, there is no national public trust doctrine. The doctrine varies from state to state. Some states have abandoned the historic doctrine and invented expanded modern versions that have the unavoidable consequence of altering previously vested private rights. The Montana Supreme Court’s expansion of the doctrine was particularly dramatic in its impact of private rights because it altered both the protected uses (by including recreation) and the geographic reach (by including many thousands of miles on non-navigable waterways) of the historic doctrine.

The petitioners in the FWP case sought to further expand the Montana version of the public trust doctrine beyond the water and to wildlife. It would have been a blatant violation of Turner’s rights pursuant to a contract with the state. But therein lies the allure of the public trust doctrine to those unhappy with the existing assignment of rights to private parties and the state.

The petitioners would deny that Turner had any right to the buffalo, despite the contract with the state, because in their view the public trust doctrine precluded the FWP from entering into the contract in the first place. The petitioners claim is that there has always been a public right in the bison. The problem with their claim is that there is absolutely no law supporting it. Only by changing the law retroactively could Judge Brown have ruled against FWP.

Again, the petitioners will not be left speechless. They will argue that common law rules have evolved over the centuries and that Judge Brown has the authority to do a little evolution herself. But that would not be consistent with the rule of law, which is the very foundation of the American legal system, or with the constitutional protections of property and contract rights.

It may be a wonderful idea supported by moral and pragmatic arguments to declare that the public has rights in the bison, but the judge’s job is not to make policy and amend the law. Rather the judge’s job is to uphold the law as it stands. The law of the public trust doctrine is crystal clear, and Judge Brown got it right.

James L. Huffman is Dean Emeritus of Lewis & Clark Law School and owns a home outside Bozeman.