Disagreement over the Public Trust Doctrine’s application to Wolves
March 22, 2012
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This past September my colleagues (S.A. Enzler & A. Treves) and I published an article arguing that the public trust doctrine could provide a legal means to force protection of wolves were state policies found lacking (Bruskotter et al., 30 Sept. 2011, p. 1828). This article prompted two recent replies published by Science last month from L. David Mech and David Johns (17 Feb. 2012, p. 794). Contrary to our assertion, Mech contended that “state governments have not shown ‘hostility toward wolves'”. He defended this statement noting that “teams of highly qualified scientists set wolf recovery criteria” and state management plans pledged to maintain wolf populations at or above 150% of recovery goals. Further, Mech argued that monitoring by the FWS ensured that “the wolf can be relisted anytime if necessary”.
Our response. We took exception with Mech’s claim that state governments have not shown hostility toward wolves, noting, for example, that Idaho’s state legislature has consistently taken legislative actions with the intent of removing wolves from the state, and pointing to similar legislation in Wyoming and Utah. We further pointed out that Mech’s confidence in states was predicated on wolf management plans that were developed by state agencies, who merely perform ministerial, management duties under the direction of the legislative and executive branches. We also disagreed with Mech’s claim that wolves could be relisted at any time by the FWS, given Congress’s willingness to remove wolves via legislative rider and the fact the the ESA’s monitoring period was limited to 5 years. Finally, we felt that Mech misinterpreted our argument, which empowers wildlife managers to act on behalf of wildlife by reminding states that they have a common law obligation to conserve wildlife for the benefit of current and future generations.
In contrast to Mech, Johns found our analysis of the delisting decision to be inadequate, and took exception with the idea (implied in our title) that “moving the issue from federal to state courts will remove politics from decisions about wolves.” Johns argued that while litigation was an important tool, “extensive grassroots organizing in support of the cause being litigated” is essential to ensuring court decisions are not “undermined or nullified.” He lamented NGOs abandonment of grassroots organizing and activism in favor of litigation.
Our response. We felt that the delisting decision was adequately covered by other scholars and, more importantly, an analysis of the 2009 Final Rule was made moot when Congress used a legislative rider to delist wolves. We agreed with Johns’ point about state courts susceptibility to political influences, but noted that because judges are constrained by precedent, court proceedings provided a “less political avenue” for ensuring the long-term conservation of wolves. We also agreed with Johns’ claim that grassroots mobilization is an important element in species protection, but noted that “research also suggests that the power of litigation to affect policy is enhanced when it is used as a political resource by social movement organizations in conjunction with ‘grassroots mobilization'”.
You can read the original article and replies here.