The Public Trust in Wildlife: Two Steps Forward, Two Steps Back

Many environmental advocates have recently lobbied for the application of the public trust doctrine to wildlife, among other natural resources, often pointing to the need for a new "ecosystemic" ethical framework for resource management and decision-making. In many states that have addressed this possibility, the road toward recognition of a "public trust in wildlife" has been a bumpy one, with halting encouragement provided by statutes or occasional court statements often preceding or even masking a more complex doctrinal development away from the public trust's more expansive application. This article traces this "two steps forward, two steps back" trajectory in detail in six states California, Idaho, Michigan, Wisconsin, Massachusetts, and Washington whose courts have grappled with or suggested extending the scope and the protected uses of the public trust doctrine to support wildlife preservation efforts. It concludes that, despite the growing urgency of biodiversity loss and unacceptability of complacency, the public trust's expansion has been limited by powerful opposition, by its susceptibility to distinct forms of judicial side-stepping, and by the erosion of judicial recognition of causes of action based on ecological preservation over the past two decades.