The Public Trust Doctrine – The Civics of Conservation

How the Public Trust Doctrine Built the Uniquely American Idea of Publicly Owned Wildlife and Wildlife Management

In this episode, AJ and Gabby explore the origins of the Public Trust Doctrine with Professor Leon Szeptycki of the University of Virginia School of Law and examine how a series of legal and political turning points helped shape wildlife conservation in the United States. From Roman law and medieval England to landmark Supreme Court cases and the conservation movement of the Progressive Era, they trace how the idea of wildlife as a shared public resource became embedded in American law and culture.

AJ and Gabby discuss how Europe’s long history of private hunting rights tied wildlife access to land ownership, and why the United States ultimately took a different path—one in which wildlife is collectively owned by the people rather than by landowners or the state itself.

They break down several pivotal Supreme Court cases, including Martin v. Waddell, Illinois Central Railroad v. Illinois, Geer v. Connecticut, and Hughes v. Oklahoma, explaining how each helped define the relationship between public ownership, state authority, and wildlife management. Along the way, they explore how these decisions laid the groundwork for modern fish and wildlife agencies and the broader North American Model of Conservation.

This episode also examines modern tensions surrounding public lands, private landowner tag allocations, and the ongoing debate over who truly benefits from wildlife management today. Throughout the episode, AJ and Gabby argue that understanding the civic and legal foundations of conservation is essential for hunters hoping to engage meaningfully in the future of public lands, wildlife policy, and access in North America.

Podcast Episode Transcript

AJ: Gabby, what does 6th century Rome, Illinois Central Railroad Co, and President Theodore Roosevelt all have in common? 

Gabby: Given the title of the episode I am going to go out on a limb here and say the Public Trust. 

AJ: You are correct. And while many moments take us to where we are today, these are few major turning points of where the concept of a resource being protected for the benefit of all would change wildlife management forever.

Gabby: Okay, so as hunters, why should I care about the Public Trust Doctrine? 

AJ: Great question. Well it can be pretty simple, it can also be a bit complex. But this common law makes it explicitly clear that wildlife are owned by the public and therefore must be managed for the benefit of all of the public. And that is actually a very progressive idea. 

Gabby: Yes, and of course the first of the seven pillars of the North American Model of Conservation is, and I quote the USFWS, “Wildlife resources are conserved and held in trust for all citizens.”

AJ: I would argue that the six other pillars of that model cannot exist without this pillar. And while some of us may have heard of the North American Model of Conservation, this episode is going to zoom on this concept of public ownership of wildlife. 

Gabby: We do have a future episode scheduled to go over the concept of the North American Model of Conservation and its additional six pillars, which—believe it or not, for a term thrown around so often—was only formally articulated and published in 2001 to help guide future management.

AJ: This first episode kicks things off with what we’re calling the civics of conservation—an exploration of how hunting in North America evolved into something truly unique in the world. Along the way, we’ll be diving into the laws, the people, the landmark court cases, the funding systems, and the civic processes that shaped it all. Our goal is simple: to better understand—and help fellow hunters understand—the civic foundation behind our hunting legacy, so we can properly engage in the process and help benefit future generations.

Gabby: And along this journey, we’ll see how separating private land ownership from hunting rights became a uniquely American idea—one that benefits everyday hunters like you and me. We even explore what hunting would look like if the public trust did not exist in the United States as a legal concept. 

AJ: The TL;DR: the public trust doctrine established the principle that wildlife is owned collectively by the public—not privately or by landowners. It’s what empowered states to create agencies like Fish & Game to manage wildlife for the benefit of everyone.

“By the law of nature, these things are common to all: the air, running water, the sea, and consequently the shores of the sea.” – Corpus Juris Civilis, 529 A.D. 

AJ: This part of the story has essentially nothing to do with wildlife and everything to do with publicly accessible water. Trade could pass through water ways without bottle necks and fishing could occur unrestricted. This is the age of the Roman Empire. 

Gabby: These concepts go further back and appear in Greek philosophy, but for western civilization, 529 AD is the first time it is formalized into a law. While we recognize indigenous people in North America did not believe in private ownership and Eastern cultures had various forms of the public trust, the story of the United States is influenced heavily by European common law. 

AJ: Corpus Juris Civilis was enacted by Roman Emperor Justinian, the first. It is important to note this concept was already widely accepted as natural law in the Roman Empire but Justinian, moved to standardize legal concepts to prevent local inconsistencies. This concept of natural law was only a small part of this legal framework. 

Gabby: Small but mighty. Other parts of this push created standardized legal frameworks for contracts, property ownership, legal defense, and enforcement, and these legal doctrines touch on all concepts of how a society would function. It even created a standardized textbook for students. 

AJ: So the Public Trust Doctrine is a common law. What’s a common law? The Merriam Webster Dictionary defines it as “a body of law that is based on custom and general principles and embodied in case law and that serves as precedent or is applied to situations not covered by statute.” To put it in simple terms, its law derived from court case decisions rather than a law passed by a legislative body. 

LEON: So I’m Leon Szeptycki. I’m a professor of law at the University of Virginia, where I teach natural resources law and water law. In various capacities, including as an academic and, a long time ago, as a lawyer for Trout Unlimited, I’ve done a lot of work on the public trust doctrine and its different implications. One big topic that comes up a lot is public access to rivers and streams, which flows out of the public trust doctrine.

The roots of the public trust doctrine are in English law, under which the king had ownership and control over navigable waters for the benefit of the public. When the Revolution happened and the colonies became states, one of the underlying principles of American law was that the states became the primary sovereigns and inherited many of the powers and duties of the king of England.

One of those powers was ownership of the beds of navigable waters, along with any responsibilities that came with that ownership. Very early in the 19th century, it became clear that each state’s ownership of the beds of navigable waters came with strings attached, and those strings were the public trust doctrine. That doctrine means the states own the beds of navigable waters in trust for the public and must exercise that ownership and power, at least in some respect, for the benefit of the public.

That basic principle of law has evolved differently across what are now 50 states. One of the major changes from England is that under English common law, navigable waters referred to the oceans and tidal waters. In the United States, however, rivers were such important avenues of commerce — essentially the roads of the 18th and 19th centuries before railroads were built — that the idea of navigable waters expanded to include freshwater rivers and streams that were navigable.

So the starting point is that every navigable river or stream, along with the tidal waters of every state, is owned by the state in trust for the public, and that trust carries with it some obligation to protect those waters.

AJ: Now, if you’re still with us, we’re going to move a little closer to today—but we’re still pre-United States. And if that sound clip from the 1991 movie Robin Hood: Prince of Thieves didn’t give it away, we’re going back to a time when the king’s deer was a very real concept… and about as far from an over-the-counter deer tag as you can imagine.

Gabby: In medieval England, wildlife wasn’t something shared by the public—it was controlled by the crown. After the Norman Conquest, William the Conqueror established Forest Law, which made animals like deer and boar effectively the king’s property. 

AJ: Some of that changed over time. Events like the French Revolution rolled back exclusive rights for the aristocracy. But fast forward to today, and Europe still reflects that history—just in a more modern legal form. 

Gabby: Here’s how it works today in many parts of Europe: wildlife itself isn’t technically owned while it’s alive—but the right to hunt and claim that wildlife is legally tied to land ownership. So if you own land, you hold the hunting rights. If you don’t, you need to lease those rights or be given permission by someone who has them. 

AJ: In the United States, we went a different direction. You still need permission to access private land—but that’s about the land, not the wildlife. And that’s because we have something Europe largely doesn’t: a broad public access systems—our public lands, over-the-counter tags, and a structure where anyone can participate without owning property. 

Gabby: This is why it’s such a hot topic in some states when big game tags start getting tied to private land ownership—it cuts against the idea of the public trust doctrine. And it took a long time to build the system we have today. Imagine if you could only hunt through private land ownership rights?

AJ: I’m going to say the quiet part out loud: this trend towards the privatization around hunting threatens the public trust and everyday hunters like you and me. And while we’ll learn that the concept of public trust ownership of wildlife was articulated in the 19th century, but some would argue today that we are slipping backward from that principle.

“This description of the migration of constitutional fundamentals from England to America is expressed by Judge Taney in Martin v. Waddell’s Lessee, 16 Peters, 410, 416: ‘When the Revolution took place the people of each state became themselves sovereign, and as soon as they took into their own hands the powers of sovereignty, the prerogatives and regalities which before belonged either to the Crown or the Parliament, became immediately and rightfully vested in the State.’

Then came the necessity of a central authority for common protection and economic progress. The joint enterprise under the Articles of Confederation essentially failed of its avowed purpose when the war was closed and danger gone.” – The Commercial Appeal, June 15th, 1924, Memphis Tennessee.

AJ: The 1842 Supreme Court case Martin v. Waddell’s Lessee was the first major challenge to the public trust and the leftover influence of the British Crown. Lands granted to Martin by the Duke of York were rich oyster waters on submerged land in New Jersey. He believed he owned the oysters there and that commoners gathering food were violating his rights. The Supreme Court ultimately ruled that the places in question were kept in trust by the state for the common use of all the people.

LEON: I’m not exaggerating when I say it blows some students’ minds. The public trust doctrine is a concept that comes from the common law — in fact, some would say it goes all the way back to Roman law.

It comes from the common law and is part of the inherent authority and responsibilities of every state as a governing power. But it’s not written into the Constitution, and it’s generally not found in state constitutions either. Instead, it has been passed down over time as a legal principle.

What surprises law students is how unbelievably powerful that principle can be. It can even be used to invalidate actions taken by state legislatures.

The famous public trust case is Illinois Central Railroad, a 19th-century case that went before the Supreme Court. The Illinois legislature had transferred the entire Chicago waterfront on Lake Michigan to the Illinois Central Railroad.

A few years later, the state changed its mind, and the Supreme Court held that the legislature never had the authority to transfer all of that waterfront to the railroad in the first place because of the public trust doctrine. The Court said the state owns the waterfront in trust for the public. You might be able to transfer a piece of land here or a parcel of water there, but you cannot give away the entire Lake Michigan waterfront of Chicago to a railroad company without violating the public trust doctrine.

The reasoning was that those resources are not exclusively the state’s to give away or sell. The state holds them in trust for the public, and by transferring so much of the waterfront, it had dramatically impaired the public’s interest in Lake Michigan. As a result, the Supreme Court overturned the legislative act under a common law principle.

As we just learned, Illinois Central Railroad v. Illinois established that states cannot give away public trust resources like navigable waters to private entities because they must hold them in trust for the public.

It also set the stage for another pivotal Supreme Court case, Geer v. Connecticut, decided in 1896.

Gabby: As we just learned from an 1892 newspaper article, Illinois Central Railroad v. Illinois established that states cannot give away public trust resources like navigable waters to private entities, because they must hold them in trust for the public. While this does not establish common law public trust of wildlife it set up the pivotal Supreme Court case Geer v. Connecticut in 1896. 

“The case of Edward M. Geer, charged with violating the game law of the state by having in his possession certain game birds procured with intent to transport beyond the limits of this state and for so transporting the birds, was not concluded Tuesday afternoon until after The Day went to press. Accused was found guilty and fined $50. He appealed to the next term of the criminal court of common pleas and furnished bonds in $200. The case will doubtless be kept going until the highest opinions in the state has been obtained.” – New London, Connecticut November 13th, 1889.

“An appeal to the United States Supreme Court has been taken from the Connecticut Supreme Court’s decision in the case of Edward M. Geer, who was convicted of violating the State Game Export law, and who holds that the law is unconstitutional.” – Boston Evening Transcript, November 6th, 1889

AJ: Edward Geer had been convicted under a Connecticut law that prohibited transporting certain live game birds out of the state. He challenged the law, and the case went all the way to the Supreme Court. But Geer v. Connecticut sent a real message: the Court said that wildlife was not owned by private individuals, but instead was held by the state in trust for the public.

AJ: So, the formation of the United States created a unique question: if the rights to the water and the wildlife could not be owned by a king, then they also could not be owned by the government, because that government would be acting like a king. The people are their own sovereign, and therefore the government would have to hold the waters and wildlife in trust for the people—the true owners. This became the foundation for state and federal wildlife agencies serving as trustees of public lands, waters, and wildlife, managing them not according to the shifting whims of political leaders, but according to a responsibility owed to the public itself. While the Constitution did not explicitly articulate this principle, the Supreme Court did. Everyday hunters like you and I have benefited from it ever since.

LEON: There are some early cases that talk about state ownership of wildlife. The classic statement of common law property doctrine is that a game animal belongs to the state until somebody legally kills it, at which point that person acquires dominion over it. The bird on the ground or the deer on the ground then becomes private property.

Over time, though, that idea shifted toward the notion that states have the primary responsibility for managing fish and wildlife. So the older concept of literal state ownership has largely faded away over the last several decades, maybe even the last century. There’s much less discussion now about who “owns” wild game or wild birds. Instead, the focus is on the states’ primary management authority, alongside increasing federal power in certain areas.

For example, the Endangered Species Act can override state law. One of the first major federal laws to do that was the Migratory Bird Treaty Act. There was a famous Supreme Court case written by Oliver Wendell Holmes Jr. called Missouri v. Holland.

In that case, the Court held that a federal statute implementing a treaty with England — which controlled Canada at the time — regarding migratory birds superseded state wildlife law. Missouri argued that the states owned and controlled the birds and that the federal government could not assert authority over them. But the Supreme Court held that it could.

Today, federal authority is even broader through laws like the Endangered Species Act. Another major area is federal land. On most federal land, states still retain primary responsibility for wildlife management. So if you’re hunting on federal land, state rules generally apply. You need a state hunting license, and you still have to follow state hunting limits and tag requirements for species like elk or other big game.

At the same time, the federal government can assert authority over wildlife on federal land under certain circumstances. For example, there was a recent dispute in which the state of Wyoming wanted to vaccinate elk for brucellosis on a national wildlife refuge. The courts held that the federal government, because it owned the land where the elk were located, could prevent the state from doing that.

“Moreover, I believe that the natural resources must be used for the benefit of all our people, and not monopolized for the benefit of the few, and here again is another case in which I am accused of taking a revolutionary attitude. People forget now that one hundred years ago there were public men of good character who advocated the nation selling its public lands in great quantities, so that the nation could get the most money out of it, and giving it to the men who could cultivate it for their own uses. We took the proper democratic ground that the land should be granted in small sections to the men who were actually to till it and live on it. Now, with the water-power, with the forests, with the mines, we are brought face to face with the fact that there are many people who will go with us in conserving the resources only if they are to be allowed to exploit them for their benefit. That is one of the fundamental reasons why the special interests should be driven out of politics. Of all the questions which can come before this nation, short of the actual preservation of its existence in a great war, there is none which compares in importance with the great central task of leaving this land even a better land for our descendants than it is for us, and training them into a better race to inhabit the land and pass it on. Conservation is a great moral issue, for it involves the patriotic duty of insuring the safety and continuance of the nation. Let me add that the health and vitality of our people are at least as well worth conserving as their forests, waters, lands, and minerals, and in this great work the national government must bear a most important part.” – August 31, 1910, President Theodore, “a new nationalism speech.”

AJ: As we’ll learn in later episodes of this civics series, these early moments at the turn of the century set the stage for one of the most consequential conservation leaders in our country—President Theodore Roosevelt and his radical ideas about public lands and the fish and wildlife that live on them.

Gabby: Today, the idea of the public trust doctrine faces many challenges including the fight for public lands and access. In the West, the allocation of big game tags to landowners is one of the ongoing debates, particularly over whether these allocations truly adhere to the public trust responsibilities of the states.

AJ: An even broader question comes down to the word “all.” What I mean by that is the public trust doctrine is clear that wildlife—both game and non-game species—is to be held in trust for all people, not just hunters. This has become an increasing point of friction throughout the country, as older ideas about managing overpopulation of game animals are increasingly being viewed as antiquated.

Gabby: Everyday hunters should be armed with knowledge about the public trust doctrine. When contacting your state’s representatives about issues surrounding hunting in the United States, having a solid understanding of the public trust as a concept will help you defend your rights as a hunter. Remember, these court cases were going down before we had BLM lands, national forests, and national monuments. Our first national park was only about 20 years old. As modern hunters, we know nothing outside of the benefits we’ve reaped from the public trust doctrine.

LEON: The value of public lands used to be something that was broadly shared across the country. This isn’t technically a public lands statute, but it’s a great illustration of that idea.

The Endangered Species Act was passed in 1972 by a unanimous vote in the Senate. Every senator from both parties voted for it, and then Richard Nixon, a Republican, signed it into law.

Today, many issues related to public lands have become politically polarized in Washington. That’s really unfortunate. I think people who hunt and fish, in particular, have a unique voice in that debate. They have an opportunity to say: why can’t we all agree that these lands are incredibly valuable to the country? They’re an extraordinary resource, and we need to use them wisely.

The goal should be to sit down together and figure out the best way to manage them responsibly, while making sure they remain available for all Americans — not just now, but for future generations as well.