Public Wildlife on Private Land: Unifying the Split Estate to Enhance Trust Resources
Watson, Reed, Duke Environmental Law & Policy Forum
In the United States, wildlife is a publicly owned resource, yet the majority of wildlife habitat is privately owned. This division of ownership has perpetuated conflicts over such topics as endangered species, public hunting access, and crop depredation. Tensions arise not only between private property rights and the public interest, which are both regrettably dynamic legal concepts, but more fundamentally over the division of economic rents generated from the combination of public wildlife and private habitat.
This Article examines the nature of the split wildlife estate and the potential to unify it with public-private partnerships. A review of the public trust doctrine and its historical evolution reveals that state governments can and, in many instances, should share with private landowners the financial benefits of wildlife stewardship--not only the costs'. Two case studies demonstrate how unifying the split wildlife estate can lead to improvements" in wildlife habitat and an increase in the health and value of wildlife resources.
On a crisp morning in August of 2002, Jay Newell shot the biggest elk of his life. (1) Newell estimated that the mature bull weighed more than 1,000 pounds, a trophy by almost anyone's standard, yet the harvest was not cause for celebration. (2) As he walked towards the downed animal, there were no high-fives or pats on the back from hunting companions. This was no typical elk hunt. It was a culling operation intended to limit property damage. (3)
Newell, a wildlife biologist for Montana Fish, Wildlife, and Parks, had spent the night attempting to haze elk out of irrigated agricultural fields twenty-five miles east of Billings, Montana. (4) On the ranch where he shot the bull, a herd of elk had been gorging for weeks on rows of corn, beets, and alfalfa. (5) When noise makers and professional herders failed to drive the animals back onto the forested public land to the south, the state agency decided that shooting some of the animals was the only remaining option. (6)
Culling herds with sharpshooters is not how state wildlife agencies prefer to manage game populations, but such measures have become more common as wildlife exact an increasing financial toll on farmers and ranchers. (7) In the years leading up to the above incident, Steve Sian, the ranch owner, had lost as much as fifteen percent of his annual crop to elk depredation, a non-trivial amount in an industry that fluctuates with the weather. (8) Sian had given dozens of locals permission to hunt on the property, but they were unsuccessful at reducing the herd's numbers or its impact. (9) Elk adapt quickly to hunting pressure and often wait until after dark to enter agricultural fields. (10) Additionally, neighboring ranches that allowed very little or no hunting became safe havens where the elk could retreat during the day. Like many landowners, Sian had previously enjoyed seeing elk and other wildlife on his property, but that enjoyment faded when their presence began to threaten the ranch's financial future. (11) Much of the tension surrounding wildlife management and, in particular, the management of game species, stems from the fact that wildlife is publicly owned, (12) while most wildlife habitat is privately owned. (13) Per the North American model of wildlife conservation, wild animals are public property managed by each state for the benefit of its citizens. (14) These public resources are not stationary, however, nor do they confine themselves to publicly owned and funded lands. Wild animals such as elk and deer routinely cross onto privately owned property, where they consume valuable crops, destroy fences, and inflict costly property damage. (15) The result is a kind of split estate--an overlap of valuable resources, the rights to which are held by separate and distinct entities. Much like the separation of surface and sub-surface mineral rights can generate conflicts and inefficiencies in the extraction of minerals and fossil fuels, (16) the division of rights to wildlife and wildlife habitat has occasioned an increasing number of conflicts over public access, private property damage, and the appropriate division of the costs and benefits that wildlife generate. …