Saturday, 1 October 2011

Wolves and the wildlife trust doctrine

Who owns wildlife? It's a difficult question to answer--one that is affected by many aspects of culture, including philosophy, religion, politics, and judicial system. The ancient Romans had an opinion on the matter, and this influenced first English common law and, later, judicial practices in the U.S. In modern American law, the Roman philosophy is known as the "wildlife trust doctrine," the idea that wildlife has no owners at all, and therefore belongs to all citizens equally. As a result, states have a "sovereign trust obligation" to ensure that wildlife resources are protected and managed responsibly, not just for the benefit of current citizens, but also over the long term.

Official application of the wildlife trust doctrine can be traced back to the mid-19th century, when the US Supreme Court ruled that states hold some resources "in trust for the people" and are legally bound to primarily consider the interests of the general public--rather than those of private entities--when making decisions about how to manage these resources.

Although one of the first "resources" considered under this doctrine was a habitat, the law can also be applied to individual species, as recently suggested by a group of collaborators from The Ohio State University, the University of Minnesota, and the University of Wisconsin-Madison. Writing in the Policy Forum of the esteemed journal Science, the authors advocated the use of the wildlife trust doctrine to offer protection to northern Rocky Mountains populations of the gray wolf (Canis lupus), which were recently removed from the endangered species list after a long and bitter battle among politicians, farmers, conservationists, scientists, and concerned citizens.

This year's "delisting" was the culmination of years of effort to remove federal protection from the gray wolf. Since 2003, the United States Fish and Wildlife Service campaigned to take the wolf off of the endangered species list. This bid was consistently halted by arguments from scientists and conservationists who contended that wolf populations were not yet viable, that wolf distributions were not sufficient to constitute recovery, and--perhaps most importantly--that existing regulations were not adequate to ensure persistence of current population numbers. Although this should have been primarily a science-based argument--relying on cold, hard demographic data to inform policy decisions--it became very much a political issue, with individuals and states contending that the federal government was infringing on their rights.

Now that wolves have been delisted, they no longer receive federal protection; instead, their populations are governed individually, on a state-by-state basis. This is bad news for wolves, since many states are interested in allowing hunting--both for sport and for the purported protection of livestock. As much as this enrages many environmental activists, it is perhaps even more frustrating that the delisting was enabled by an unprecedented legal maneuver in which legislators from Montana and Idaho circumvented the usual delisting process by attaching a rider to a federal budget resolution. Not only did the rider effectively remove federal protection from gray wolves, but it also ensured that this decision could not be challenged in federal court.

Enter the wildlife trust doctrine. The authors of the current report suggest that this may be just the ticket for ensuring protection for the gray wolf--as well as any other species no longer (or even never) protected by the federal government. Even when species are placed under federal protection, it is difficult for the federal government to compel state and local agencies to enforce national rules. The wildlife trust doctrine sidesteps this problem by permanently placing responsibility in the states' laps.

According to the authors, both legal scholars and wildlife professionals feel that the wildlife trust doctrine is an important conservation tool. However, it is one that has not frequently been used in courts--though, when it has been utilized, things have generally turned out well for the species and habitats in question. In most cases, it has been used retroactively, for instance to punish individuals or entities that have done harm to a public resource. There is no reason why it cannot be used proactively--for instance, prior to removing a species from the endangered species list--but this will require a change of thinking among conservation/environmental groups and the lawyers who represent them.

Bruskotter, J.T., Enzler, S.A., Treves, A. 2011. Rescuing wolves from politics: wildlife as a public trust resource. Science 333:1828-1829.

Thanks to the following websites for providing the images used in this post:


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