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Florida Fish Busters’ Bulletin

June 2011

FWC carries on the Public Trust--Doctrine

By Bob Wattendorf

Florida Fish and Wildlife Conservation Commission

For my 32 years with the Florida Fish and Wildlife Conservation Commission

(FWC), I have been one of those folks dealing with the stigma of “I’m from the

government, and I’m here to help you.”

Fortunately, the FWC has an outstanding

public reputation, and most people who care about

nature and are outdoors enjoying our resources

understand that we really are here to provide a

service. FWC employees, whether biologists,

conservation officers or those holding a myriad of

specialized jobs, are ultimately here to see that we

manage fish and wildlife resources for their long-

term well-being and the benefit of people.

Long ago, resource users and all those who benefit by having healthy fish and

wildlife and beautiful natural areas to appreciate, conveyed on governments the

task of protecting and sustaining nature. In previous “Fish Buster’s Bulletins” and

our “Florida Freshwater Fishing Regulations Summary” (MyFWC.com), we have

discussed how the North American Model of Wildlife Conservation helps to fund

Fish stocking is just one of the more

easily recognized ways by which FWC

helps anglers and preserves the publictrust.



and regulate fish and wildlife harvest and use to ensure safe and sustainable public

recreational opportunities. That model incorporates the “Public Trust Doctrine,” so

perhaps it is time to explain its history and relevance.

The Public Trust Doctrine is part of common law, and each state customizes it

to establish public rights in navigable waters and along shores. This is because

people used these common areas for food, travel and commerce since time

immemorial. Many historians attribute the origins to Roman laws passed around

529 A.D. that stated, “By the law of nature these things are common to all mankind

– the air, running water, the sea, and consequently the shores of the sea. No one,

therefore, is forbidden to approach the seashore, provided that he respects

habitations, monuments, and the buildings, which are not, like the sea, subject only

to the law of nations.” Roman property systems specified not only private property

but also common property (res communis) and classified wildlife under the law of

things owned by no one (res nullius).

By high school, everyone should have heard of the Magna Carta, which in 1215

established that although the Crown (British royalty) continued to own property,

commoners had the right to use tidal areas for traditional uses. Although the Crown

was a trustee of these lands, it could not provide exclusive rights to submerged

lands.

The American judicial system incorporated these common-law practices early

in the nation’s history. In 1842, Chief Justice Roger Taney ruled in Martin vs.

Wadell that “shores, and rivers, and bays, and arms of the sea, and the lands under



them (were held) as a public trust for the benefit of the whole community, to be

freely used by all for navigation and fishery.”

The Public Trust Doctrine has continued with

three solid core principles. First, that fish and wildlife

are public resources. Second, they are managed for the

common good. Third, trained professionals hold them in

custodianship and serve as trustees who are

accountable to the public.

In Florida, the state constitution sets out the

Public Trust Doctrine in Article X, section 11. This

constitutional provision codifies existing common law,

ensuring that title to navigable lakes and streams is

held by the state in trust for use by the people. As applied in Florida, the doctrine

protects water bodies that were navigable at the time of statehood in 1845. In 1909,

the Florida Supreme Court interpreted this to mean “navigable for useful purposes

common to the public in the locality where the waterbody is located.”

The term “navigable for useful purposes” must be understood

in context of the transportation system that actually existed at

the time of statehood. In 1845, the only railroad in Florida was

between Tallahassee and St. Marks. It used wooden rails with

carts pulled by mules. As a result, lakes and streams were by far

the most reliable public highways for moving goods and people.

Consequently, the Florida congress recognized the status of these

In 1845, the map of

Florida looked much

different, but waters

used for commerce

then are still publicwaters.

Data collected by scientists trough

electrofishing and tagging studies

helps ensure quality, sustainable fishing opportunities.



waterways when it declared that all the “navigable rivers and waters in the

districts of East and West Florida shall be, and forever remain, public highways.”

In the mid-1800s, steamboats, barges, flat-bottom boats, dugout canoes and

homemade skiffs were used to transport passengers, products and produce, so

Florida became titleholder of all such navigable water bodies within its boundaries

when the territory attained its statehood. Title “passed to the state in its sovereign

capacity to be held by it in trust for the people thereof.”

Building on this, in 1937, President Franklin D. Roosevelt signed the Federal

Aid in Wildlife Restoration Act. This act has been key to implementing the North

American Model of Wildlife Conservation. Since 1941, sport-fishing businesses have

paid a federal excise that went into the general treasury of the United States but

did not directly benefit manufacturers or anglers. In 1950, sportsmen and

businesses teamed with conservation-minded policymakers to redirect these

existing federal excise taxes to the Sport Fish Restoration Program (aka: SFR,

Dingell-Johnson or Wallop-Breaux). As of 2012, the Federal Aid in Wildlife

Restoration Act and the North American Model of Wildlife Conservation will have

been working for 75 years.

The concept was to restore sportfish

populations and improve public access, so

more people can enjoy fishing and fishing

sales would increase. Sport Fish

Restoration came about because anglers

wanted to see more money directed towardFishing licenses and excise taxes on tackle fund

sport fish restoration and conservation activities

throughout Florida.



restoring the nation’s recreational fisheries, ensuring better fishing opportunities

for themselves and future generations. It has been the best thing for anglers since

mass production of fishing reels.

Today, SFR uses a small excise tax on fishing reels and other fishing tackle, as

well as a motorboat fuel tax, to fund sport-fish restoration and boating access

programs. It is working. There are now at least 77 percent more anglers than in

1950. Purchases of tax-related items by anglers have increased by nearly 200

percent in constant dollars since 1955.

Anglers and fishing businesses want to know the benefits they receive in

return. To help answer this, Andrew Loftus Consulting and Southwick Associates

analyzed data on excise taxes invested, fishing participation, and angler purchases

of excise-tax related products for a 2011 report to the Association of Fish and

Wildlife Agencies. The report found that excise-tax related return-on-investment

ranged from 1,585 percent in 1970 to 2,643 percent in 1980.

In Florida alone, SFR provided $13 million in 2010, of which 15 percent ($2

million) went to boating access. Freshwater fisheries conservation received $5.5

million (the rest went to saltwater fisheries). In freshwater, the FWC uses this

money to improve fisheries habitat, stock fish, conduct research and manage fish

populations. We also conduct aquatic education programs and provide valuable

fishing and conservation tips to anglers.

The bottom line is that the public trust doctrine, the North American Model of

Wildlife Conservation, your fishing license fees and Federal Aid in Sport Fish



Restoration work hand-in-hand with anglers and other folks who are concerned

about our natural resources to ensure safe and sustainable use for everyone.

For me, that makes it much easier to say, “I’m from the government, and I’m

here to help.”

Instant licenses are available at MyFWC.com/License or by calling 1-888-FISH-FLORIDA

(347-4356). Report violators by calling *FWC or #FWC on your cell, or 1888-404-3922. Visit

MyFWC.com/Fishing/Updates for more Fish Busters’ columns.

http://www.myfwc.com/License



http://www.myfwc.com/Fishing/Updates

http://www.myfwc.com/Fishing/Updates


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Fl66 Public Trust Formatted