KEY POINTS OF PUBLIC AND PRIVATE PROPERTY RIGHTS
THE STARTING POINT – THE PREAMBLE TO THE CONSTITUTION OF THE UNITED STATES
“We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
In this one sentence the American people established themselves as sovereigns in common and established a government as the means by which we exercise our common sovereignty.
PRIVATE PROPERTY RIGHTS
As the nation’s territory grew, some public lands and waters were divested into private ownership. By a variety of laws, including the 5th Amendment, private property rights were legally secured. Private property is a strongly held value in our society and we have passed a myriad of laws dealing with these private rights – none of which legalize the taking of public property.
PUBLIC PROPERTY RIGHTS
The root concept of ‘property’ in English common law included the premise that the owner of property is entitled to defined benefits of ownership. This premise underlies our legal code of private property rights, and also underlies the public property rights – the property of the commonwealth. The benefits of property owned by the people of a commonwealth accrue to the owners.
The logic of property ownership in our general culture, common law, and written code of law secures the rights of the public to the benefits of their property, as securely as it does the rights of private property owners. There is no law in our national or state code that classifies public property right below private property rights. Indeed, the public may take private property for public need by way of eminent domain. But, private owners may not take public property without the consent of the people through their elected officials as trustees.
By legislation, court decree, executive order and other actions, the ‘public’, in the nation and states, have retained ownership of specific land and water properties.
Wildlife is a separate, specific class of public property. “We The People ” also retained direct ownership of the wild animals regardless of whether those animals are located on private property or on public property.
National Forests, Parks, BLM Lands, navigable rivers and waters in streams, Wildlife Refuges and state lands are examples of real estate public properties that are owned by the people – who thus possess ownership rights to the of benefits of the property.
PUBLIC TRUSTEES AND THE DOCTRINE OF PUBLIC TRUST OWNERSHIP
As the “public” acquired ownership of property they discovered the impossibility of preserving their asset without a central controlling authority to make rules, enforce rules, and manage the value of the property. The people, recognizing themselves as sovereign, employed the philosophy of popular government embodied in the founding sentence of the U.S. Constitution to create just such an authority within government agencies – assigned the job of being TRUSTEES of the public estates. The U.S. Forest Service, BLM, Fish & Wildlife Service, and State Fish & Game Departments are examples of public trustee agencies. The Trustee is charged with managing the public property assigned to them in such a way as to provide the benefits required by the owners and beneficiaries. The U.S. congress and State Legislatures make the laws, on behalf of the public, the trustees must follow.