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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.
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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
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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.
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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.
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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
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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.