Nicholas Massey

Document Type

Notes

Publication Date

2-13-2023

Keywords

Public Trust, Wildlife Trust, Trophic Cascades

Subject Category

Constitutional Law | Law

Abstract

The reintroduction of the Gray Wolf to the Greater Yellowstone Ecosystem conferred extensive ecological benefits to the region. The wolves' return resulted in a phenomenon known as a "trophic cascade," in which the presence of apex predators atop a food pyramid effectuates a "waterfall" of ecosystem-wide benefits. For example, the Gray Wolf has curtailed bloated elk populations, which has in turn reduced the damage of elk herds overgrazing on willow, aspen, and cottonwood plants—critical sources of food for the region's beavers. Importantly, the wolves' benefits are not confined to flora and fauna. Scientists have even discovered geological and riparian benefits directly traceable to the reintroduction.

For all its ecological importance, the reintroduction of the gray wolf also resonates meaningfully in the legal world. Since the Endangered Species Act was enacted, Gray Wolf populations have oscillated between being federally protected under the Act and being left to the mercy of less-compassionate state management regimes—a problem known as jurisdictional fragmentation.

This Note argues that the traditional property law doctrines of public trust and wildlife trust should be read to compel state protection of species that produce positive trophic cascades. These doctrines, read together, would require state governments—as opposed to only federal agencies—to protect certain species of wildlife. Creating an affirmative duty for states to protect certain species would remedy jurisdictional fragmentation and create a more consistent, coherent management regime applicable to certain species and certain populations. This theory would include wolves among the assets a state holds "in trust" for us, the trust beneficiaries. Requiring states to hold certain species as public trust assets would help reconcile divergent federal and state management regimes and help protect other trust assets, such as the land, rivers, and mountains.

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