The public trust in wildlife

John Echeverria's Takings Litigation blog recently (April 24) covered a surprising development in arguments before the US Supreme Court:

Who could have imagined that the takings case of Horne v Department of Agriculture argued in the Supreme Court this past Wednesday might portend revival of the doctrine of public trust ownership of wildlife?  But it might. Really.

The Horne case has to do with whether a federal program forcing raisin growers to turn over a portion of their crop to the government is a "taking", constitutionally requiring compensation. Echevarria explains how the public trust comes into this:

The dramatic surprise in the oral argument on Wednesday came during the discussion of the 1929 chestnut of Leonard v. Earle, a Supreme Court precedent with an uncanny resemblance to the Horne case. The case involved a takings claim based on a Maryland statute that required oyster “packers” to turn over to the State of Maryland, once the oysters had been shucked, 10% of the empty shells. The shells, though surely not as valuable as the innards, had value for roadmaking, as fertilizers, and as animal feed. The State’s purpose in procuring the shells was to arrest the “rapid exhaustion” of Maryland’s oyster beds by using the spent shells to build the depleted beds back up and provide a substrate on which young oysters could grow.  In response to the argument that the statute amounted to a taking, Justice McReynolds wrote:

“From the packer’s standpoint, empty shells are but ordinary articles of commerce, desirable because convertible into money. Their value is not large, and the part taken by the state will be so used as greatly to advantage the business of packing. The purpose in view is highly beneficent, and the means adopted are neither arbitrary nor oppressive. The federal Constitution may not be so successfully invoked by selfish packers who seek to escape an entirely reasonable contribution, and thereby to thwart a great conservation measure generally approved.”

African-American Oystermen circa mid-1800s (oysterharbor.org)

The Horne case, too, of course, involves a program that requires raisin “handlers,” in certain years, to hand over a portion of the raisin crop to the government in order to benefit the industry as a whole.   If there was no taking in Leonard, it is very hard to see how there could be a taking in Horne....

Counsel for Petitioners, Michael McConnell, attempted to distinguish the Leonard case on the ground that it was a “wild animal” case; the oysters, he said, “are the property of the State.”   In other words, because the oysters were public property to begin with, the State could choose by statute to hold back part of the property the public owned. But the Court’s opinion does not suggest that the decision turned on the fact that the oysters were wild animals. Moreover, as Justice Elena Kagan accurately observed, there is a fatal flaw in this argument in this case because the statute applied to the packers, not the fishermen. Once the fishermen lawfully acquired oysters, the oysters were their private property, and when they sold the oysters to the packers the property interest in the oysters was unencumbered by any public ownership. In other words, when the government required oyster packers to set aside a portion of the spent shells, the government was clearly “appropriating” private property, not holding back public property.

So, Professor McConnell’s effort to distinguish Leonard should fail and the Supreme Court arguably should affirm the Ninth Circuit’s rejection of the takings claim in Horne based on this venerable precedent. But the equally tantalizing possibility is that the Court might embrace McConnell’s argument and thereby revive the concept of public trust ownership of wild animals. The concept of public ownership of wildlife has a venerable history.... One obstacle to this argument is repeated statements by the modern Supreme Court that the doctrine of public ownership of wildlife is a mere “fiction.”   If the Court were to embrace Professor McConnell’s argument for distinguishing Leonard, the public ownership doctrine could be given new life, with consequences that could extend far beyond the realm of raisins.