In the most recent issue of the journal, Science my colleagues and I argue 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 controversial species such as wolves. We argue that this common law doctrine fills the gap in statutory law that is left when a species is removed from federal and/or state protections. We use the case of gray wolves (Canis lupus) in the northern Rocky Mountains to illustrate how the gap in statutory law can negatively impact a species. What follows is a brief summary of a few of the paper’s main themes.
Citation: Bruskotter, J. T., S. A. Enzler, and A. Treves. 2011. Rescuing Wolves from Politics: Wildlife as a Public Trust Resource. Science 333:1828-1829
The Public and Wildlife Trust Doctrines
Many readers of The Wildlife News will be familiar with public trust doctrine, which the Wildlife Society views as one of seven “pillars” of the North American Model of Wildlife Conservation. We follow other scholars (e.g., Hudson 2009, Wood 2004) who separate a “wildlife trust doctrine” from the broader, public trust doctrine, which deals primarily with water/tideland resources. The broader public trust doctrine was probably most famously articulated in Illinois Central Railroad v. Illinois (1892), where the U.S. Supreme Court maintained that certain resources, including the land under navigable waters, are “held in trust for the people” by states, who act as trustees on behalf of their citizens. Only four years later, the Supreme Court applied this same logic to terrestrial wildlife in Geer v. Connecticut (1896). The court’s opinions in these cases employ nearly identical language, and in both cases, the court’s rationale for the decision relies on English common law. However, while a large body of case law on the broader public trust doctrine has evolved to deal with water resources, courts’ application of the doctrine to wildlife has been relatively rare–primarily it has been used by states to recover monetary damages on behalf of their citizens (for example, following a large fish kill; see Freyfogle & Goble 2009).
States’ Obligations Under the Wildlife Trust
While wildlife professionals (e.g., Jacobson et al. 2010) and legal scholars (e.g., Musiker et al., 1995; Wood 2004) alike acknowledge the importance of the public trust doctrine as a tool for promoting wildlife conservation, there is very little discussion as to what obligation states owe their citizens under the wildlife trust. The power of the state over wildlife stems from the notion of “sovereign ownership” or “ownership in trust” (Musiker et al. 1995, Blumm & Ritchie 2005, Freyfogle & Goble 2009) in which the state/government acts as a trustee in its sovereign capacity, managing a resource on behalf of its’ citizens (the beneficiaries), who collectively “own” the resource. Yet, as Freyfogle & Goble pointed out, there is no “trust document” that establishes states’ obligations; thus, there is ambiguity regarding the specifics of states’ duties. Musiker and colleagues argued that the public trust doctrine imposes an obligation on the state 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…”
Similarly, in Geer, the court held that the trustee-beneficiary relationship established an obligation on the part of the state “to enact such laws as will best preserve the subject of the trust” (emphasis added). More recently, the California Supreme Court concluded that the public trust doctrine imposes a “duty o[n] the state to protect the people’s common heritage…surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust” (National Audubon Society v. Superior Court of Alpine County, 1983). We argue that, given the substantial societal investment in recovering endangered species, the state/trustee’s obligation is heightened when a species has recently been removed from federal ESA protections.
Large Carnivores and the Wildlife Trust
What does this mean for wolves and other large carnivores? The wildlife trust doctrine is useful for filling the gap in statutory law left when wolves were removed from formal federal protections–it provides a formal legal mechanism for citizens to hold states accountable should they act in a way that causes a substantial impairment to the trust resource (e.g., 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.
Importantly, the recognition of an 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 mechanism 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 2009). A formal recognition of an obligation to conserve under the wildlife trust doctrine could have provided the reassurance (i.e., a common law regulatory mechanism) that the Court sought and allowed the delisting of grizzly bears to proceed.
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For more information see: Wolves as a Public Trust Resource
Contact: Jeremy Bruskotter, Email: bruskotter.9@osu.edu
Literature Cited
J. W. Feldman, Human-Wildlife Conflicts 1, 12 (2007).
E. T. Freyfogle, D. D. Goble, Wildlife Law: A Primer. (Island Press, Washington, DC, 2009), pp. 345.
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. 4th 1349, 83 Cal. Rptr. 3d 588 (2008).
Comments
JB,
Very insightful.
I believe that if wolf conservationists knew that a wildlife trust doctrine would cause the states conserve the newly established and recovered wolf populations at some level “reasonably” close to the number on “delisting day,” few if any lawsuits would have been filed. If they had been filed anyway, a significant number of conservation groups would have sided with the government to delist.
Lack of trust of Idaho’s elected officials on my part led me to be an advocate of suing to keep the wolf on the list. The day Governor Otter took office and rabble roused loudly about killing the wolves, my attitudes toward the situation, the tactics, and strategies I thought should be employed, changed. I was not alone.
Why can’t we “occupy public lands” to protect our wildlife interests. I’m afraid that is where a lot of people who have been displaced by the mortgage/foreclosure scam will end up anyway.
Thanks, Ralph. I agree with your assessment about the actions of Idaho’s Governor and state legislature. Unfortunately, the rhetoric emanating from Idaho’s commission has, if anything, made things worse. Of course, we can’t know exactly how Idaho’s courts would interpret a challenge under the WTD/PTD; but our research suggest there’s a pretty strong foundation for insisting that Idaho maintain a viable population of wolves–an “obligation to conserve”, if you will. I suspect that many of the good people who work at fish and wildlife agencies already feel they have this type of obligation; now they have something that will help them articulate that obligation to elected officials.
the question would become,IMO, what is a viable population. I have been reading recently about a concept of “ecological viable population” or as I understand it the role a particular species plays in the overall scheme of things, and at what threshold is that species a viable number. Obviously that is a dynamic concept that will wax and wan.
OR is a viable number the same as the lowest possible number that a species can be driven too and still exist, eg. Idaho’s and Wyoming’s conjoined plans
Those are great questions, Jeff. There is another problem with using population viability analyses; specifically, while they typically allow one to calculate the probability of extinction for a population over some period of time, they don’t address the subjective question of “what constitutes an acceptable risk of extinction”. Still, these questions can be debated and agreed upon by scientists; which would remove some of the overtly political influences from the decision/planning process.
I don’t think Clem accepts any science that does not emanate from the farm bureau
JB,
Perhaps at some point your entire paper will be available to this forum. Just thinking outloud here, and without the benefit of reading your paper, so bear with me.
Does the paper cover the topic of the practical implications of judge made law? Sometimes legislative and executive branches find judicial activism distasteful. The evolution of a public trust in wildlife, as I understand it would be at the individual state level, and advocated within each state’s constitution and statutory framework.
If, as your summary suggests, plaintiffs must be creative in finding and advocating a “public trust” argument for wildlife under existing state laws (and they do vary considerably), it will undoubtedly raise a host of very broad and complicated issues, well beyond the example of a trust duty to protect wolves and other large carnivores; it would likely cover all species for the people. States may respond differently under this burden.
Competing interests will be things like tension between the public trust to protect wildife (if one is recognized) and economic development or infringement on private property rights, or a proclamation of public health and safety (whether deserving or not).
We know from past it is tougher to be insulated from realities and political pressures on the local level, that federal intervention might be required (we have talked about a number of those statutes here, which of course includes the CWA, CAA, SWMA, and of course the ESA which has provisions for state cooperation and participation. This kind of takes us full circle).
What if a state says, we find no trust duty for a particular species, but do for others, as stated in a statute. I could see this development in the NRM states. Then what?
WM:
The issues you raise are spot-on and, unfortunately, cannot be adequately covered within Science’s 2-page limitation. There are indeed reasons to be concerned about how the WTD/PTD will be interpreted by state courts–and undoubtedly this will vary from state to state. Our purpose was to trace the roots of this doctrine and show how it could be applied to help reduce some of the tension regarding the conservation of controversial species at the state level. We hope to expand the analyses here into a law review in the near future. Please stay tuned.
WM:
Email me directly and I can send you a pdf. I’ve also sent it on to Ralph, Ken and Brian, so you could contact them.
So, you’re going to present a violation of the public trust argument to the State of Idaho? Good luck with that one. It’s Idaho; violating the public trust has never slowed them down even one little bit in the past. My experience with the State of Idaho has always been that it’s like being raped by a gorilla. It doesn’t care whether it smears your make-up or rips your lingerie; it’s not human; it’s a gorilla for crying out loud.
Mik:
We did not argue that Idaho was in violation of any obligation under the public trust. Rather, the point was, at least in part, to remind those in positions of political power that sovereign ownership of wildlife cuts both ways: now that wolves are delisted management authority indeed belongs to the state, but that authority comes with an obligation to preserve the resource for future generations.
I think using the public trust doctrine in this manner is an interesting idea, but I’m not sure what practical use it actually offers. Perhaps it gets around the ESA’s “best available scientific data” requirement and its specific listing criteria, but how would that be advantageous for wildlife advocates?
Under the doctrine, you could argue states have a duty to maintain viable populations, but the ESA already largely fills that role with the threat of bringing down the federal hammer. If you were basically arguing that a species in endangered in a “significant portion of its range,” wouldn’t the more specific ESA control?
Isn’t the looming threat of relisting enough of an incentive for the states to get it right? Aren’t the post-delisting monitoring requirements and emergency relisting provisions regulatory mechanisms themselves? I know that the court didn’t address this in GYC v. Servheen, but I think that case was wrongly decided for two major reasons.
First, the court misconstrued the ESA’s listing/delisting criteria. The court said the Grizzly wasn’t protected by “adequate regulatory mechanisms” rather than being threatened by the “INadequacy of existing regulatory mechanisms” (which is the actual language of the ESA). There is a difference. Omitting those two letters shifts the burden of proof from something science can demonstrate now to something requiring a lot more future-oriented speculation.
Second, the court made a similar mistake when it second-guessed FWS’s scientific conclusions about the possible effects of the whitebark pine decline on the future grizzly population. Delisting a species doesn’t require absolute scientific certainty that the species will survive for another 10 million years regardless of ecological changes that could become an issue in the future. The ESA just requires that the delisting decision be supported by the BASD standard and not be arbitrary and capricious. I think this issue was a close call, but I think FWS met its burden in this case.
The problem with delisting a conservation-reliant species is that ESA becomes the regulatory mechanism that was missing. If the proposed, untested post-delisting regulatory scheme is not as strict and proven as the ESA’s protections, the species won’t get delisted even after recovery plan goals are met. I think that the threat of relisting provides enough incentive to be considered a regulatory mechanism unto itself, and should allow a species to be delisted under the ESA’s current language. After all, the Servheen court wanted enforceable consequences if the states screwed up. The emergency relisting provisions provide those consequences.
I also think that the ESA applies scientific standards to issues that are inherently political and value-laden. Goble discusses this in his “Recovery” article. The Act purports to apply science, but there are inherent issues with risk-tolerance and choice of timeframe when assessing whether a species is “endangered.” These issues basically provide cracks where bias and discretion can creep into the listing/delisting process. They also lead to inconsistent judicial decisions that undermine the ESA’s legitimacy.
Not to poo-poo your paper, but I just don’t see what the public trust doctrine offers for reminding the states that they have a duty to conserve that the ESA lacks.
P.S. Don’t steal these ideas. I’m currently writing a paper on them.
Dude:
Good questions. I’ll take a stab at a few of the more pointed ones…
Re: The practical significance. First, and foremost, the majority of imperiled species in the US probably are not listed under the ESA. Time to listing can be considerable, especially for controversial species (the lynx took more than 2 decades to resolve). Second, while the five year monitoring periods is in place, states certainly have an incentive not to push a species back toward localized extinction…but after that period has elapsed, the statutory protections are gone and relisting an expensive and controversial species such as wolves is extraordinarily unlikely. One could also argue that the WTD/PTD requires that each state maintain (or attempt to maintain) a viable population onto itself. That is, if state’s are to manage a species solely for their citizen beneficiaries, then they should take steps to ensure that they can provide the resource for future generations; managing for one viable population across multiple states means states are not only managing for their citizens, but of a necessity, must consider the interests of citizens from an adjacent state. Finally, of course, it provides a mechanism to force states to conserve a species without involving the federal government, and so avoids the states rights/federal interventionism issue.
I agree wholeheartedly with your comments about the risk-tolerance factor embedded in listing determinations (this is discussed in Freyfogle & Goble’s text as well).
“I think that the threat of relisting provides enough incentive to be considered a regulatory mechanism unto itself, and should allow a species to be delisted under the ESA’s current language.”
The problem with this perspective is that the inadequacy of regulatory mechanisms is part of the five-factor test used in ALL listing decisions (not just delisting); and again, it is only present for 5 years and then lapses. Thus, you’re essentially arguing that the threat of ESA listing/re-listing is itself a regulatory mechanism that should be considered when making a listing determination. Such an interpretation would lead to a situation whereby regulatory mechanisms were irrelevant. The language used in the ESA requires the court to examine the “inadequacies of existing regulatory mechanisms” when making a listing status determination; seems pretty clear that the ESA is referring to other (i.e., non-ESA) mechanisms?
Don’t take what I said as an insult, I was just curious as to how you thought the PTD would be advantageous. Admittedly, I frequently enter into a dialogue with pointed questions. It’s not intended to be personal, just direct.
“First, and foremost, the majority of imperiled species in the US probably are not listed under the ESA. Time to listing can be considerable, especially for controversial species.”
Good point. I can see how that’s at least something given the current trend toward listing fewer species. Still, I think WM’s and Mikarooni’s concerns about how this would play out on the state level are valid.
“Second, while the five year monitoring periods is in place, states certainly have an incentive not to push a species back toward localized extinction…but after that period has elapsed, the statutory protections are gone and relisting an expensive and controversial species such as wolves is extraordinarily unlikely.”
I wouldn’t say the statutory protections are gone altogether. Rather, because we can always petition to relist the species, the statutory protections are only dormant.
Relisting a previously listed species may be politically controversial, but any listing determination is going to have that problem whether the species was previously listed or not. If the evidence strongly suggests that the species is declining significantly, there is only so much room for discretion in the listing process. Maybe that’s naive given the political climate right now, but an agency can only act within its statutory mandate. If the decline is severe enough, the agency would have to make a 2+2+5 kind of argument to avoid listing, and a judge would have to sign off on it. Or a “warranted but precluded” finding. Or the ESA would have to be amended. If the government isn’t making principled decisions, it doesn’t matter which specific principles it is choosing to ignore.
At least we know a great deal about how to successfully manage a delisted species, and the scientific and regulatory lessons of the prior listing can inform how the species should be managed post-delisting. If post-delisting management strays too far from management while listed, and the population declines, it’s just one more piece of evidence we can point to in claiming that the species is endangered because of inadequate regulatory mechanisms.
“The problem with this perspective is that the inadequacy of regulatory mechanisms is part of the five-factor test used in ALL listing decisions (not just delisting); and again, it is only present for 5 years and then lapses.”
I somewhat disagree with this characterization. As stated above, the listing factors don’t go away after delisting, they are merely dormant. The population is only monitored for 5 years post-delisting, but that doesn’t mean that wildlife advocates can’t petition for relisting after that 5 year period.
“Thus, you’re essentially arguing that the threat of ESA listing/re-listing is itself a regulatory mechanism that should be considered when making a listing determination.”
Yes.
“Such an interpretation would lead to a situation whereby regulatory mechanisms were irrelevant.”
No. This conclusion isn’t supported by my premise. I’m not saying that other regulatory mechanisms are irrelevant, just that the threat of relisting is a factor that should be considered.
“The language used in the ESA requires the court to examine the “inadequacies of existing regulatory mechanisms” when making a listing status determination; seems pretty clear that the ESA is referring to other (i.e., non-ESA) mechanisms?”
I agree. Further, I think a conservation plan with habitat protections, MOUs, hunting regulations or closure to harvest, and the threat of relisting all add up to
an enforceable regulatory mechanism that could sufficiently protect the species. At some point, you just have to take it on faith that the government will do what it says. If the government inserts enforceable provisions that it refuses to enforce, there isn’t really any remedy short of some kind of bloody revolution.
I just think that the court’s current interpretation requires too much certainty. Are we talking about adaptive management, or are we requiring an amendment to the U.S. Constitution?
Dude:
I didn’t take offense–just being direct in my answers, as I don’t have a lot of time.
“I wouldn’t say the statutory protections are gone altogether. Rather, because we can always petition to relist the species, the statutory protections are only dormant.”
We will have to agree to disagree here. I’m not sure if you’ve been paying attention to recent listing petitions, but the “warranted but precluded” finding now seems the default answer of the FWS. So yes, you could always petition to relist, but this could take years (if it happened at all), or worse, they could end up in “warranted but precluded” purgatory. Not really a viable long-term solution; especially given the current political climate.
“The population is only monitored for 5 years post-delisting, but that doesn’t mean that wildlife advocates can’t petition for relisting after that 5 year period.”
True (but see above); however, from my perspective, this is the legal equivalent of praying.
“This conclusion isn’t supported by my premise. I’m not saying that other regulatory mechanisms are irrelevant, just that the threat of relisting is a factor that should be considered.”
Sorry the confusion here is my fault; I should have said that, such an interpretation is tautological–meaning, if the law says that you must examine the “inadequacies of existing regulations” to determine a listing decision and you count the ESA’s monitoring provision as such a regulatory mechanism, you will always find the regulatory mechanisms adequate.
Note: I agree with you regarding the court’s interpretation of in the griz case–I think it requires too much on the part of the government. However, again, were states/courts to acknowledge a duty to conserve, the court would have had the regulatory mechanism they needed.
From my perspective, such an obligation is obvious. States cannot claim the “right” (using that term loosely) to manage/regulate wildlife without acknowledging an obligation to do so in a responsible manner.
JB, Ken, Ralph, anyone?
If memory serves, Buffalo Field Campaign (and maybe WWP) as plaintiff filed suit in MT state court over the MT Fish Wildife and Parks service procurement decision to place brucillosis free bison with Ted Turner for a designated quarantine period, because they didn’t have enough money to let a contract for the care and custody of those bison for the necessary confinement time. In exchange, Turner would recieve offspring from those buffalo, in lieu of money for the services rendered. There were other placement options, with other prospective vendors, like the Belknap Tribe but the MT service procurement folks determined they didn’t have sufficient fencing and a management program in place to guarantee solid guardianship of the bison.
The plaintiff(S) alleged, in a what I recall was a single count complaint, that MT violated public trust by converting these bison (state wildlife) to private property, and thus a violation of the “public trust doctrine.”
I do not recall, but believe, MT does not formally acknowledge with specific words that the wildlife of the state are “held in public trust” for its citizens. HOWEVER, there was some language in the state constitution and maybe a statute or two to that effect, that the plaintiffs believed was a sufficient thread to make the argument.
KEN, or anyone, can you confirm if I have the facts/claim mostly correct, and where that case stands today? Seems it was filed more than a year ago.
This might be a test of the theory.
JB,
You make good points on this post and in the paper. Unfortunatley, it seems pretty clear that ID and MT (esp.ID) are managing their public trust obligations down to the minimal extent as stated in the original ESA that wasn’t but should’ve been amended upwards (say at least 500 per state) – 150 individuals per state. I believe that the NRM states will interpret that that number is what they need to fulfill their PTD obligations even though most of us here think that that number is way to low for genetic connectivity and the wolves’ ecological relevancy.
Jon, JB,
One other aspect of this intriguing “wildlife public trust” theory, is that at least 13 states (among them MT, MN, WI, and a bunch of states in the east and south) have state Constitutional “right to hunt” provisions. There may be other states with provisions sufficient to shoehorn in an argument of the right to hunt.
Query: Do constitutional rights to hunt and the wildlife trust doctrine complement each other, or do they create conflicting goals?
Example: MT, in 2004, amended its Constitution to say:
++Article IX, Section 7. The opportunity to harvest wild fish and wild game animals is a heritage that shall forever be preserved to the individual citizens of the state….++
What does “opportunity” mean, and can the state manage for maximum harvestable wildlife populations (elk, deer, pronghorn) to carry out this recently affirmed/created Constitutional right against its apparent “wildlife trust” obligation to manage or protect certain at risk species (wolves, grizzlies) at minimum levels?
There will likely always be tension in the states rights area, when it butts up against obligations under federal law like the ESA, especially in these states which have renewed by initiative or referendum, and/or legislative law Constitutional changes (which often require a 2/3 majority), specifically setting out the Constitutional right to hunt or fish.
These cases won’t be heard in federal court by judges insulated from politics by appointment for life.
Plaintiffs advocating state “wildlife trust” obligations can expect this Constitutional affirmative defense as against any claims brought, and I will guess there is a good chance a state court trial or appellate judge will throw out the claim on SJ, if he/she wants to remain on the bench.
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Genetic connectivity would seem to be a red herring, and arguably has an easy fix. Move a few wolves around and the problem is solved at low cost, and with minimum political backlash. If it then results politically in too many wolves in one area, thin them out again. This will likely be the tool WA will use with its discontinuous ranges under its contemplated plan, in less than 10 years, I would guess.
WM:
You are right about the lack of insulation from politics of state justices; we had to deal specifically with this topic in review.
Re: the constitutional “right to hunt”– It is very clear that the intent behind such amendments was to ensure that animal rights activists could not use ballot initiatives or legislative processes to ban hunting. I do not know of such amendment that details the right to hunt a specific species. Thus, in Montana the “opportunity to harvest wild fish and wild game animals” has not been removed because of wolves. In fact, there is now one more game species to hunt. The language of this Article calls for the “preserv[ation]” of that opportunity–NOT its maximization.
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Re: Genetic connectivity- I think one could make a strong argument that under the public trust doctrine, each state must maintain (or attempt to maintain) a viable population of the species unto itself. This, of course, would remove the genetic connectivity requirement, but would likely require the maintenance of more than 150 wolves/15 breeding pairs that Idaho has committed to.
WM: You might be interested in this:
http://www.animallaw.info/journals/jo_pdf/lralvol15_2_p193.pdf
JB,
++Thus, in Montana the “opportunity to harvest wild fish and wild game animals” has not been removed because of wolves. In fact, there is now one more game species to hunt.++
Arguably, the opportunity to hunt in some local areas has been affected, based on the ongoing research in certain GMU’s where wolves are present. But, the question is whether it has been “materially” affected, and if so, it would seem MT has under its reserved powers the right to strike whatever balance it chooses among different species (with wolves off the ESA list, and apparently no greater federal statutory obligation than the minimum in the rider rule/law).
Within these bounds I suppose there is an argument the wildlife trust duties have been met, and MT is in compliance with federal and state law. [Just playing Devil’s Advocate here]
Sorry, “…hunt ELK or DEER in some areas has been affected….”
And, yes opportunities to hunt and manage wolves, a new species in the mix, within the framework of the state’s game management program as determined by popular vote of the executive branch (governor) and the governor’s appointed agency GFP heads, and board members.
“I suppose there is an argument the wildlife trust duties have been met…”
I agree; and I think Montana’s management is generally responsible. There is certainly a fair bit a gray area here in which I expect most courts would defer to the agency.
“Arguably, the opportunity to hunt in some local areas has been affected, based on the ongoing research in certain GMU’s where wolves are present.”
I disagree. The constitution provides for the opportunity to hunt. If one can purchase a hunting license–any hunting license–then one has been provided the “opportunity” to hunt. Your interpretation would seemingly require the agency to maximize one’s probability of harvest; I doubt any court would hold the agency to that sort of interpretation (nor would it be good if they did).
Fundamentally, I agree that the agency has a fair amount of discretion under the PTD to set policy.
Wildlife trust is an extremely dangerous can of worms to open. One could easily argue that with wolf reintroduction that trust was violated. Certainly the diversion of thousands of elk and moose to feed wolves instead of the citizens of the affected states for whom the animals had been held in public trust is a violation of that most solum bond.
In fairness the blame lies more with the USFWS, certainly the various environmental orgs had no concept of public trust and I believe the individual states involved were anti listing and anti introduction in the first place.
“One could easily argue that with wolf reintroduction that trust was violated.”
One might make that argument, but they would be wrong. The reintroduction was federally run and occurred on federally owned lands. The federal government’s “right” to take such action is without question, and emanates both from the property clause (see the Supreme Court’s discussion in Kleppe v. New Mexico) and the commerce clause.
What the federal government did was to return a native species that had been eradicated, in part due to states’ failure in their public trust obligation. With the restoration of wolves and resumption of state management, the obligation is again in place.
“Certainly the diversion of thousands of elk and moose to feed wolves instead of the citizens of the affected states for whom the animals had been held in public trust is a violation of that most solum bond.”
No. The state is under no obligation to maximize the number of any species; rather, the obligation is simply to preserve those species for future generations. If elk (or any other native animal) were in danger of localized extinction, then one would have a valid claim that states are obligated to take action.
Yeah, worth reading
http://mdagnrpolicy.arec.umd.edu/Conferences/Deer-Management-in-Maryland/decker.htm
And if you haven’t fallen asleep yet, after reading the entire article, it begs the question why some (humans) can’t relate to the overall BS regarding wildlife AND the humans in charge of regulating their very existance………
Nancy:
Can you be more specific? To what type of “BS” do you refer?
+Stakeholder preferences seldom should be used as the sole basis for decisions.
In trying to be good public servants, wildlife managers should not become servantile to public opinion by relying too heavily on opinion polls to determine what they ought to do. Surveys and opinion polls should not become in effect surrogate referenda where what the majority wants, the manager will automatically try to provide. This course of action would be heading down a road toward abrogation of professional responsibility for the public interest+
Are we not seeing this being played out right now in the west (especially Idaho) when it comes to wolves?
I’m not sure it is fair to say Idaho is basing its decisions solely on surveys of public opinion? However, there is an interesting table on p. 55 of Idaho’s 2008-2012 management plan that contains data from a relatively recent survey of Idahoans. Essentially, the survey asked respondents a series of questions about the “best” management plan for Idaho’s wolves. More than 70% of hunters and 43% of non-hunters agreed with the item, “The best wolf management strategy is to reduce wolf populations to the minimum pack numbers necessary to keep them off the Endangered Species List.” Idaho’s non-hunters, favored a less aggressive management option (i.e., “The best wolf management strategy is to manage wolf populations so that conflicts are reduced through active management, leaving a significant buffer above minimum requirements.”). I’ll leave you to interpret this data as you see fit; but it seems to me that opted for the plan favored by the most hunters, as opposed to adopting a plan that would have left “a significant buffer” of wolves for non-consumptive users.
From a recent newspaper article out of Idaho:
+Non-resident deer tag sales dropped from 18,000 in 2008 to 12,000 in 2010. Non-resident elk tag sales dropped from 14,000 to 10,000.
Now you can blame wolves for part of it especially since the state’s hunters and outfitters have been telling anyone who would listen that wolves are “decimating” the state’s game herds. Wolves are taking their share in some areas lke the Lolo, but there are still a lot to go around.
“We have ample elk in most of our zones,” Moore said.
One reason is there just are fewer hunters out there. In Idaho hunting and fishing license sales have been flat or even dropped since 2000, Moore told the Idaho Environmental Forum Wednesday.
Nationwide angler numbers dropped from 35 million to 30 million from 1996 to 2006. Hunter numbers dropped from 14 million to 12.5 million, Ken Cordell, a Forest Service research told the Idaho tourism conference in Lewiston in May.
During this same period wildlife watching grew from 63 million people to 71 million+
I do think its time to start take “non-consumptive users” seriously.
Note: The full text version of this article is now available from Science. You’ll find the link on the articles page on my website:
https://bruskotter.wordpress.com/articles/
I read this article last night. I began a letter to donors of the Yellowstone Wolves Project more than a month ago.There was the question, what did I want recipients to do? (Some demonstration of disapproval. Refusing U.S. concerts. Press conferences, public condemnation, from the EU, boycotts.)
In preparing the letter my directive has changed. If wildlife can be owned, who owns it? If you can own them and protect them, another can own and kill.
The idea of resource is already very close to death. Also,once property, then whose property? Who gets to decide whose property? That is the wolves, our my dilemma. That wilderness and her many constituents are a publicly owned resource hasn’t helped wolves.
I was going to ask for endorsement from Born Free and HSUS, mail to donors and people who have authored books on wolves, film makers who have taken up a cause, dolphins. National Geographic was a donor. NG has produced issues and film about Yellowstone wolves.
Can it be shown that public trust implies obligations that extend ultimately to the land as your article seems to say? I’m working with a few ideas. 1Yellowstone is a world heritage site. 2Yellowstone is the world’s largest intact wilderness environment, a laboratory for research. 3 Ranchers hold their (spurious- easily demonstrated) interests above the commonweal and are self interested to the point of refusing cattle registration and pollution streams rivers and ground table water, the biosphere, in a still larger frame, profit over world hunger. 4 Social issues connected to the sports hunting demographic, well documented, are deleterious to society as a whole. Promoting sports hunting fosters child and wife abuse and directly increases the number of spousal homicides. (Recent RCMP report) 5 If man too can be a predator his take must be closely regulated as to use. Killing for food can be accommodated and regulated. Hunting to kill, sports hunting, trophy hunting, cannot. 6. Humane killing excludes bow and arrow, traps, snares, poison and baiting.
Senator Baucus has proposed drones for wolf management in Yellowstone. Moderator at Howling For Justice believes he means it. Back to point 1. Yellowstone is a world heritage site. Does that admit the world community to the debate? 2 Land use. Historically First nations people practiced what Leopold called Land Ethic. Do Indigenous people have any claim against the abuse of public trust?
I’d begun to think in these terms by stages. Before reading your article I had decided on a call to end sports hunting. In writing this to you I’ve put myself on track. The letter will be ready for review shortly. It remains in some ways general, by way of back grounding readers (and author) I have a full time advocate friend who will be first stop editor. Can I send a draft by attachment to you for review and comment?