“Raisins Are Not Oysters”: Horne and the Improper Synthesis of the Public and Wildlife Trusts

Abstract

Public trust and wildlife trust doctrines have historically been viewed as two separate property doctrines. The synthesis of the two would have serious repercussions for private property owners and endangered wildlife species. A misguided reading of the recent Horne decision from the United States Supreme Court threatens to do just that. The public trust doctrine is recognized as protecting resources that belong to no individual; more specifically the public trust doctrine has historically been applied to navigable waters and submerged lands. The wildlife trust, while similar, has always been separate and is more narrowly used to convey that wildlife is held in trust by the sovereign state for the people. In the June 2015 Supreme Court case Horne v. Department of Agriculture, the majority was forced to reconcile their opinion with a 1929 Supreme Court case about government takings of oysters. Justice Roberts did so by stating “raisins are not oysters” which in the eyes of some renewed and expanded the public trust protection to wildlife. This article examines the public trust and wildlife trust doctrines separately - their development, their histories, relevant caselaw, how they are codified in statutes and acts, and the legacy of the synthesis of the two trusts from Horne in relation to them. This is the first article to analyze how Horne affects the distinction between the wildlife trust from the public trust. Then the article analyzes the negative consequences of synthesizing the public and wildlife trusts, how the wildlife trust protection of species is in conflict with the property rights of land owners, and alternative methods that could be used to protect both property rights and threatened species.