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Access for All: The Public Trust Doctrine and the Freedom of Information Act

Written by Tyler Armstrong, Fall 2021 Wildlife Law student under Carol Frampton at Michigan State University College of Law

The Public Trust Doctrine – a key component of the North American Model of Wildlife Conservation – holds that “wildlife resources are conserved and held in trust for all citizens.”[1] As can be predicted, the doctrine is subject to many interpretations. For those with a hunting heritage, the public trust is crucial in providing ample opportunities to pursue game based on scientific management and under democratic rule of law. To activists, the public trust is a means to wholly preserve, protect, and even assign humanistic legal rights to all species.

Theodore Roosevelt, one of North America’s premier champions of wildlife and wildlands conservation, is credited with stating, “[o]ur duty to the whole, including the unborn generations, bids us to restrain an unprincipled present-day minority from wasting the heritage of these unborn generations.”[2] Roosevelt was of course referring to the maintenance of wildlife populations in the United States and abroad, and spoke against the depletion of whole populations out of greed; seeing beyond his time, considering the future, unborn generations who would grow to appreciate the abundance of species around them. But what did Roosevelt have in mind when he advocated for everyone to be able to participate?

In late 2019, Humane Society International (HSI) submitted a Freedom of Information Act (FOIA) request to the U.S. Fish and Wildlife Service (FWS) regarding import and export data related to wildlife products harvested abroad.[3] Such information is found on Form 3-177, a specialized form issued by FWS that is required to be filled out by anyone seeking to import or export wildlife products.[4] HSI’s request included all Form 3-177s spanning an eleven-year period.[5] FWS supplied the requested information but redacted importer/exporter names under applicable exemptions 6 and 7(C).[6] FWS further redacted the value of the wildlife products under FOIA exemption 4 – which the U.S. District Court for the District of Columbia ultimately held to be improper on appeal.[7] The court relied upon new case law concerning when a government agency may withhold information from a FOIA request under Exemption 4.[8] The test holds that where the offered information is customarily kept private by the offering party, and where the receiving party offers some assurance that the information will be kept private, only then will the information be protected under Exemption 4.[9]

As to the first prong of the test, the court dismissed several pieces of evidence as inadmissible hearsay, and many others as deficient and devoid of probative value.[10] The court accepted evidence of BioVT, LLC and Oregon Health & Science University (OHSU) as two objectors who sufficiently treated data on wildlife imports and exports as private.[11] As for the second prong, the court found that no assurance was expressly given by FWS regarding the safeguarding of value information in wildlife exports.[12] Further, according to Humane Society International’s evidentiary offering, FWS had historically released this information to other parties, and moreover, both BioVT and OHSU had not objected when other plaintiffs received this sort of information under other FOIA requests.[13] The court ultimately granted HSI’s motion for summary judgment as to the proper application of Exemption 4 and the wildlife value data.[14]

Theodore Roosevelt in East Africa.[15]

The outcome of this case marked a win not for activists, nor for the hunting community, but for transparency. The court correctly decided this case in protecting the personal information of persons involved in the importation and exportation of wildlife, but in disclosing via FOIA request the value information that did not adequately fit under Exemption 4. The decision complements the public trust doctrine in providing access to wildlife information to any member of the general public who may rightfully seek it under the laws and regulations of the United States. Courts must remain vigilant and forward-thinking in their decisions involving wildlife access, including data on wildlife imports and exports. As transparency and cooperation abound, we may move forward with confidence, continuing to monitor and protect wildlife species to enjoy for generations, regardless of how each of us chooses to participate in the wildlife ecosystem.


[1] North American Model of Wildlife Conservation, Association of Fish & Wildlife Agencies, (last visited Nov. 13, 2021). [2] The Public Trust Doctrine: Implications for Wildlife Management and Conversation in the United States and Canada, The Wildlife Society (Sept. 2010), [3] John M. Simpson, Bid By Humane Society International To Get Information On Sport Hunters Fails, Animal Law Developments (Aug. 16, 2019), [4] Id. [5] Id. [6] Id.; see also Humane Soc'y Int'l v. U.S. Fish & Wildlife Serv., 394 F. Supp. 3d (D.D.C. 2019). [7] Humane Soc'y Int'l v. U.S. Fish & Wildlife Serv., 2021 WL 1197726 (D.D.C. 2021). [8] See Food Marketing Inst. v. Argus Leader Media, 139 S.Ct. 2356 (2019) (holding that “where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is ‘confidential’ within the meaning of Exemption 4”). [9] Humane Soc’y Int’l, 2021 WL 1197726 at 2. [10] Id. at 4-5. [11] Id. at 4. [12] Id. at 5. [13] Id. at 5-6. [14] Id. at 6. [15] Discover Uganda,


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