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Public trust doctrine applies to state conservation of wolves and other wildlife, U of M and other researchers say

Experts call out states' responsibility to conserve wildlife removed from Endangered Species Act protection

Tuesday, October 4, 2011

When a species such as the gray wolf is removed from the federal endangered species list, states have a legal obligation to conserve it, three scientists contend in the current issue of the journal Science.

The researchers are Sherry Enzler, a public trust scholar in the University of Minnesota’s College of Food, Agricultural and Natural Resource Sciences and resident fellow at the Institute on the Environment; Jeremy Bruskotter of Ohio State University; and Adrian Treves of the University of Wisconsin–Madison. They suggest that a common-law principle known as the public trust doctrine obligates states to conserve a species for their citizens when federal statutory law no longer protects it. The public trust doctrine holds that certain natural resources, including wildlife, belong to all citizens, and therefore deserve such protection.

The researchers cite the case of the gray wolf, which lost federal protection in the northern Rocky Mountains last spring and is currently under consideration for delisting in Minnesota and other Western Great Lakes States. Wolf advocates fear that loss of federal protection could deplete populations so rapidly that the species will require federal protection again if states are not committed to wolf conservation.

Recognizing that the state has a common-law obligation to maintain wildlife populations in perpetuity not just for current residents but for future residents provides a degree of protection for species in the absence of statutory protection, the researchers argue.

“The public trust doctrine holds that if state politicians were to intervene to try to prevent the maintenance of a viable wolf population, they could be taken to court,” Enzler said. “There is a legal mechanism to prevent that type of action.”

To date, wildlife advocates haven’t had to rely on the public trust doctrine to guide their management because states generally show a strong desire to conserve species. The case of gray wolves in the northern Rockies has been unusual, with western legislatures expressing the desire to minimize wolf populations or even remove them altogether.

While court cases already have defined the reach of the public trust doctrine, additional cases would help cement states’ obligations in managing species no longer covered by federal protection, the authors contend.

“If this obligation is going to be more than just understood, there will need to be case law established, which is going to require somebody to take things to court to see what those obligations are,” Enzler said.

Better clarity about state management could also apply to other species, including the grizzly bear, which the U.S. Fish and Wildlife Service stands ready to delist in the greater Yellowstone region. As part of a recent plan to remove protection, federal officials asked states to agree to certain management practices. A federal court rejected the plan because the agreement would not legally require states to conserve grizzlies. The researchers note that court-made law based on the public trust doctrine could provide the legal requirement needed to allow such a plan to move ahead.

“It’s not about protecting any particular species. It’s about how we ensure we have adequate protection for all imperiled species under state-led management,” Enzler said. “Not all species are a perfect fit for federal protection, so this is a better long-term solution.”

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