Wolves as a Public Trust Resource

On 30 September my colleagues and I published an article in the journal Science that argues that the wildlife trust doctrine (a branch of the broader public trust doctrine) may provide a legal means for interested citizens to compel states to conserve wolves (or, for that matter, other controversial, imperiled species). What follows is a brief discussion of some of the major points presented in the paper (Bruskotter, J. T., S. A. Enzler, and A. Treves. 2011. Rescuing Wolves from Politics: Wildlife as a Public Trust Resource. Science 333:1828-1829).  We begin with a brief primer on the wildlife trust doctrine.

A Primer on the Wildlife Trust

The wildlife trust doctrine–a branch of the broader public trust doctrine that deals specifically with wildlife–was established in a series of court cases that provide the foundation for state-based conservation of wildlife that some refer to as the North American Model of Wildlife Conservation/Management. Two Supreme Court cases (i.e., Martin v. Waddell 41 U.S. 367 (1842) and Geer v. Connecticut 161 U.S. 519 (1896)), provide the basic foundation of this legal doctrine.  In Martin v. Waddell, the court applied English common law to reject a landowner’s claim to an oyster fishery that was located under the public waters of the state of New Jersey.  The court concluded that with the formation of the United States, the lands that had once belonged to England passed to the state of New Jersey; applying English common law, the court held that the “land under navigable waters…were to be held…in the same manner and for the same purposes that the navigable waters of England and the soils under them are held by the Crown.”  English policy, since the time of the Magna Carta, was to preserve such resources “for the benefit of the public”.   Thus, the landowner could not lay claim to the oyster fishery because his actions deprived the citizens of New Jersey any access to this resource, which was held collectively by the citizens of that state.

Although the dispute in Martin v. Waddell focused on the lands under the navigable waters and the oyster beds attached thereto, the Court in Geer v. Connecticut, using a similar rational, extended the trust obligation to terrestrial wildlife (woodcock, ruffled grouse and quail).  In this case, again relying on English common law, the court held that wildlife (ferae naturae ) were public property – “the ownership of the sovereign authority . . .  [to be held in] trust for all the people of the state” and that it was the” duty of the legislature to enact such laws as will best preserve the subject of the trust and secure its beneficial use in the future to the people of the state.”  These cases set the stage for modern wildlife management by state agencies, in which states act as trustees, managing and conserving wildlife resources on behalf of their citizens.  This doctrine underpins our system of wildlife conservation in the United States, and is recognized by the Wildlife Society as one of the seven “pillars” of the North American Model.

An Obligation to Conserve?

While the notion of sovereign ownership of wildlife is well established, there has been little discussion regarding states’ obligations under the wildlife trust doctrine.  The Court in Geer made it clear that the trustee-beneficiary relationship establishes an obligation on the part of the state to “to enact such laws as will best preserve the subject of the trust” (emphasis added). The court added that:

“..the power or control lodged in the state, resulting from this common ownership, is to be exercised, like all other powers of government as a trust for the benefit of the people, and not as a prerogative for the advantage of the government as distinct from the people, or for the benefit of private individuals as distinguished from the public good” (emphasis added).

Yet, the nature of states’ obligations is ill-defined for, as Freyfogle and Goble (2009:33) noted, “there is no trust document that sets forth the precise terms of the trust.”  Moreover, there has been little opportunity–or need–to establish the case law necessary to “flesh out” these obligations because the statutory protections provided by the federal Endangered Species Act of 1973 and the associated federal control have largely precluded the need for protecting species outside the ESA framework; that is, because the ESA provides federal protections for species that are imperiled, there has been no need for interested citizens to force states to protect species through litigation, thus establishing the case law necessary to formalize states’ obligations.

Wolves and the Wildlife Trust

Enter the wolf.  Since wolves were reintroduced in the northern Rocky Mountains in the mid-1990s, western politicians have been crying “foul”.  Their actions have ranged from hyperbolas saber-rattling, to the passage of laws that seriously undermine (or at least attempt to undermine) wolves’ conservation at the state level.  Here are but a few of the more egregious examples:

• House Joint Memorial 5 (Idaho): Made it the official policy of Idaho that wolves be removed from the state by any means necessary.
• House Bill no. 274 (Idaho): Among other things, this bill prohibited state and local government employees from “investigating, arresting or prosecuting, or assisting any federal authorities or agencies in any way that could lead to the arrest of any person who removes a gray wolf from Idaho or causes the injury or death of a gray wolf in Idaho” so long as the species was listed as threatened or endangered.
• House Bill no. 343 (Idaho): Declared the wolf introduction to be a “disaster”, arguing that the “state’s citizens, businesses, hunting, tourism and agricultural industries, private property and wildlife, are immediately and continuously threatened and harmed by the sustained presence and growing population of Canadian gray wolves in the state of Idaho.”
• Idaho Rhetoric: Governor Otter declares that he would support a plan to kill all but 100 wolves.
• Senate Bill no. 36 (Utah): Made it the official policy of Utah to prevent “the establishment of a viable pack of wolves within the areas of the state where the wolf is not listed as endangered or threatened.”
• Utah Rhetoric (2011): The Director of the Dept. of Natural Resources called wolves “a biological weapon” that were being used by anti-hunters to end sport hunting, and compared the recovery of wolves in the West to a resurrection of the T. Rex.

These actions have seriously undermined states’ credibility when it comes to wildlife conservation, and call into question states’ intentions concerning the long-term conservation of wolves.  These actions also raise a few important questions, such as: What are states obligations with respect to wolves under the wildlife trust doctrine?  Do interested citizens have any legal recourse if states act in such a way that threatens the persistence of wolves within their borders?

Musiker and colleagues (1995) argued that the public trust doctrine imposes an obligation for states to “(1) consider the potential adverse impact [on the wildlife resource] of any proposed activity over which it has administrative authority, (2) allow only activities that do not substantially impair the state’s wildlife resource and (3) continually monitor the impacts…to ensure preservation of the corpus of the trust.” We concur with their view–the trustee-beneficiary relationship implied by the wildlife trust doctrine imposes upon states an obligation to “prevent substantial impairment” to wolves’ (or any other trust asset) absent a compelling government purpose. Moreover, the public/wildlife trust doctrine does not allow states to privilege certain interests when making decisions.  Indeed, in Geer the court held that the state must exercise its power over wildlife “for the benefit of the people, and not …for the advantage of the government as distinct from the people or for the benefit of private individuals” (emphasis added). Thus, actions taken on the part of states that potentially impair a population to the benefit of certain private groups should be viewed with skepticism.

How Does the Wildlife Trust Doctrine Affect Wolf Management

In essence, the recognition of an enforceable obligation under the wildlife trust doctrine would fill the gap in statutory law that arises when ESA protections are lifted and states’ resume management of a species.  Such an obligation would provide a means by which citizens could use the courts to ensure that populations are not impaired without due cause.  For wolves, the wildlife trust doctrine seemingly demands that, at minimum, states maintain (or at least attempt to maintain) a viable population of the species, as any less would bring into question states’ ability to conserve the species for future generations. Were this obligation to be officially recognized by states it could help tone down the rhetoric about wolves, and assuage the fears of wolf advocates that state-led management will lead to a second round of eradications.  It could also help bring the debate about wolves in the West back into the scientific arena, as states set about determining what constitutes a viable population of wolves.

Interestingly, the recognition of a formal obligation to conserve could also be useful for removing species from the federal list of endangered species.  For example, a federal court in Montana recently ruled that grizzly bears could not be removed from the endangered species list because the regulatory mechanisms present were inadequate for ensuring grizzly bears’ continued conservation.  Specifically, the Court held that Memorandum’s of Understanding between the states and the federal government were an inadequate regulatory mechanisms because the government “cannot compel any of the agencies to live up to their commitments” under the terms of the Memorandum of Understanding (see, Greater Yellowstone Coalition v. Servheen, 672 F. Supp. 2d 1105, 1116 (D. Mont., 2009).).   A formal recognition of an obligation to conserve under the wildlife trust doctrine could have provided the reassurance (i.e., regulatory mechanism) that the Court sought and allowed the delisting of grizzly bears to proceed.

Yet, despite widespread recognition among legal scholars, the case law necessary for establishing an obligation to conserve wildlife under the wildlife trust doctrine is lacking.  Indeed, as we noted in the piece–states application of this doctrine has thus far been extremely limited.  Building the case law necessary for judicial recognition of an obligation under the wildlife trust doctrine will require interested groups to use the courts when states act in such a way as to potentially impair species.  Such application is crucial to ensuring the long-term conservation of controversial species.

See also, my post on The Wildlife News: Conserving Carnivores Under State Management: Wolves as a Public Trust Resource

Press Release about the Article: Researchers: Apply Public Trust Doctrine to ‘Rescue’ Wildlife from Politics

Press Release from the University of Minnesota: Public Trust Doctrine Applies to State Conservation of Wolves

References (from the original article)

J. W. Feldman, Human-Wildlife Conflicts 1, 12 (2007).

L. D. Mech, L. Boitani, Wolves: Behavior, Ecology, and Conservation. (University of Chicago Press, Chicago, 2003).

B. J. Bergstrom, S. Vignieri, S. R. Shefield, W. Sechrest, A. A. Carlson, BioScience 59, 991 (2009).

U.S. Fish and Wildlife Service et al., “Rocky Mountain Wolf Recovery 2010 Interagency Annual Report” (U.S. Fish and Wildlife Services, Ecological Services, 2011).

C. Carroll, M. K. Phillips, C. A. Lopez-Gonzalez, N. H. Schumaker, BioScience 56, 25 (2006).

J. T. Bruskotter, E. Toman, S. A. Enzler, R. H. Schmidt, BioScience 60, 941 (2010).

R. Gehrke, “Natural Resources director compares wolf to ‘T. rex’,” The Salt Lake Tribune, 08 February 2011 2011.

A. Treves, K. A. Martin, Society and Natural resources 24, 984 (2011).

M. J. Houston, J. T. Bruskotter, D. P. Fan, Human Dimensions of Wildlife 15, 389 (2010).

M. C. Wood, Environmental Law 34, 605 (2004).

D. G. Musiker, T. France, L. A. Hallenbeck, Public Land & Resources Law Review 16, 87 (1995).

P. Redmond, Natural Resources Journal 49, 249 (2009).

Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892).

S. A. Enzler, William and Mary Environmental Law and Policy Review 35, 413 (2011).

16.  Geer v. Connecticut, 161 U.S. 519, 534 (1896).

B. Hudson, Columbia Journal of Environmental Law 34. 99 (2009).

J. L. Sax, Michigan Law Review 68, 471 (1970).

National Audubon v. Superior Court of Alpine County, 658 P. 2d 709, 719 (Cal. 1983) 724.

H. M. Babcock, South Carolina Law Review 61.  393 (2009).

M. C. Blumm, L. Ritchie Environmental Law 35, 673 (2005).

Greater Yellowstone Coalition v. Servheen, 672 F. Supp. 2d 1105, 1116 (D. Mont., 2009).

C. A. Jacobson, J. F. Organ, D. J. Decker, G. R. Batcheller, L. Carpenter, Journal of Wildlife Management 74, 203 (2010).

Center for Biological Diversity v. FLP Group, 166 Cal. App. 4^th 1349, 83 Cal. Rptr. 3d 588 (2008).

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http://www1.umn.edu/news/news-releases/2011/UR_CONTENT_358268.html