From a post by Ars Techica on Wired, we learn that the controversy over the protection of wolves has triggered renewed interest in the "public trust doctrine" as a way to continue or enhance the preservation of what is considered an exemplar of the wild:
As part of the recent federal budget showdown, legislators from Montana and Idaho attached a rider to the budget bill ordering the Fish and Wildlife Service to delist wolves in those states without the possibility of judicial review. You can probably predict how these states will choose to manage their wolf populations.
Several wolf researchers recently published a policy article in Science proposing a new view of state responsibilities toward wolves (with one author discussing it on his blog.) They argue that there is a very long common law history for wildlife falling under the umbrella of the public trust doctrine—in short, wildlife belong collectively to the citizens of the state. The state, then, is obligated to preserve wildlife for the benefit of the public. This duty has been cited by the US Supreme Court on several occasions, including cases involving wildlife as well as navigable waterways.
In Colorado, the status of the public trust doctrine is, at best, under-developed:
Under the “public trust doctrine”, which is a common law concept, “[a]ll the public lands of the nation are held in trust [by the government] for the people of the whole country.” Light v. United States, 220 U.S. 523, 537, 31 S.Ct. 485, 488, 55 L.Ed. 570 (1911), quoting United States v. Trinidad Coal & Coaking Co., 137 U.S. 160, 11 S.Ct. 57, 34 L.Ed. 640 (1890); see also Davis v. Morton, 469 F.2d 593, 597 (10th Cir.1972).
Consistent with the right to use the lands for public purposes, the government has a duty under this doctrine to protect and preserve the lands for the public's common heritage. However, “it is not for the courts to say how that trust shall be administered. That is for Congress to determine.” Light, 220 U.S. 523, 537, 31 S.Ct. 485, 487. Where Congress has set out statutory directives, as in the instant case, for the management and protection of public lands, those statutory duties “compris[e] all the responsibilities which defendants must faithfully discharge.” Sierra Club v. Andrus, 487 F.Supp. 443, 449 (D.D.C.1980); see also Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981).
Further, resort to the “public trust doctrine” as an additional remedy in this case is unnecessary given the duties already imposed by the Wilderness Act. Additionally, even if I found that the “public trust doctrine” applied and that federal defendants violated a trust duty by not claiming federal reserved water rights in the Colorado wilderness areas, as discussed above, I could not grant the relief requested by Sierra Club and order federal defendants to initiate litigation to claim those rights.
Sierra Club v. Block, 622 F. Supp. 842, 866 (D. Colo. 1985). For the history of the public trust doctrine, see generally J. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich.L.Rev. 471 (1970); Stevens, The Public Trust: A Sovereign's Ancient Prerogative Becomes the People's Environmental Right, 14 U.C.Davis L.Rev. 195 (1980).
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