Using the Federal Public Trust Doctrine to Fill Gaps in the Legal Systems Protecting Migrating Wildlife from the Effects of Climate Change

• Publication year: 2021
• Citation: Vol. 95

95 Nebraska L. Rev. 649. Using the Federal Public Trust Doctrine to Fill Gaps in the Legal Systems Protecting Migrating Wildlife from the Effects of Climate Change

Using the Federal Public Trust Doctrine to Fill Gaps in the Legal Systems Protecting Migrating Wildlife from the Effects of Climate Change

Hope M. Babcock(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 650

II. The Impact of Global Climate Change on Wildlife ...... 653
A. General Impact of Climate Change ................ 654
B. The Impact of Global Climate Change on Wildlife .. 656
1. Wildlife Migration ............................. 658
2. Assisted Migration and Protecting Migratory Corridors ...................................... 661

III. Rigid Federal Laws and Inadequate Private Conservation Mechanisms ............................. 664
A. Federal Lands and Federal Laws .................. 665
B. Inadequate Private Conservation Mechanisms ..... 669

IV. The Public Trust Doctrine and a Federal Trust in Wildlife ............................................... 673
A. The Public Trust Doctrine ......................... 674
B. Strong Federal Interest in Wildlife ................. 680

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V. Three Theories Supporting the Existence of a Federal Public Trust Doctrine and Why It Has Not Been Displaced by Statutory Law ........................... 684
A. A Federal Doctrine of Public Trust ................. 685
B. Objections to a Federal Public Trust Doctrine ...... 693
1. Statutory Law Displaces Common Law Doctrines Like the Public Trust Doctrine ....... 693
2. The Public Trust Doctrine Invites Courts to Intrude in Policy Making by the Political Branches ...................................... 695

VI. Proposal .............................................. 696

VII. Conclusion ............................................ 700

The constant development of unprecedented problems requires a legal system capable of fluidity and pliancy. Our society would be strait-jacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial and political conditions.(fn1)

I. INTRODUCTION

Not unlike before the biblical flood, the world stands on the brink of catastrophe awaiting rescue by a virtual ark. The most vulnerable to this looming catastrophe are the world's wildlife. Changes in global temperature and precipitation as well as sea level rise and acidification of the ocean are already affecting wildlife by limiting the availability and quality of habitat and the abundance of prey, and by increasing predation and disease.(fn2) Sea level rise and unstable storm patterns threaten coastal wildlife, while changing precipitation and temperature patterns are drying out habitat, making some habitat more susceptible to wildfires, and other habitat too cold or too hot. These weather changes are creating pressure on wildlife to move from the increasingly inhospitable places they currently occupy to more suitable locations.(fn3) As wildlife move, human obstacles make their journey harder. Neither federal laws nor private land protection

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mechanisms, like conservation easements or land trusts, have sufficient elasticity to protect migrating wildlife from interference during their journey to more suitable habitat. This Article's supposition is that unless flexibility can be found in either public or private law to protect wildlife as it moves, many species of wildlife may not survive. The Article examines how law might be used to protect shifting wildlife habitat needs when it is not known when and where those new needs will arise.

One thing that climate change does is challenge the capacity of existing federal laws and private property mechanisms to loosen their attachment to a particular geographic place so that wildlife are still protected when they move to avoid the effects of climate change-a need not envisioned when these measures were put into place. Rather than parse existing federal laws to see if they might be interpreted to protect new, as-yet unoccupied habitat and migratory corridors, this Article searches for elasticity in common law property principles, like the public trust doctrine, to see if they might be more effective.

The public trust doctrine is firmly embedded in state law and has been used at the state level for centuries to protect water-based trust resources and traditional public uses of those resources without having to actually acquire or condemn the land.(fn4) But relying on states to use the doctrine to protect moving wildlife is problematic as migration corridors may cross multiple political boundaries, including national ones, and may encounter local opposition that is hard for a state to overcome. These problems with the doctrine's application at the state level could result in a patchwork of protected property too small and isolated to be successful as alternative habitat for many species and in fragmented migratory corridors that lack the necessary connectivity between segments. A federal version of the public trust doctrine, however, could transcend political borders and protect sufficient land to assure migrating wildlife safe passage.(fn5) A federal public trust doc-

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trine would also sidestep the need to achieve political consensus among competing stakeholders, as would be required for any collaborative effort at the state or local level. However, the existence of a federal public trust doctrine is untested in the courts and very controversial. Additionally, although the doctrine has evolved through the centuries to reflect modern values, its application to upland wildlife habitat is uncertain.

I argue in this Article that there are at least three theoretic bases for a federal version of the public trust doctrine. First, nothing in the doctrine confines its use to the states; second, the close parallels between state and federal powers with respect to protecting and managing natural resources invite parallelisms between the sources of the doctrine; and third, the Ninth Amendment offers a constitutional purchase for it. At a minimum, the doctrine, in any form, offers interpretative principles that might assist federal courts in assessing the legality of barriers to wildlife migration, regardless of whether they arise on public or private land.

To make the use of a federal public trust doctrine more politically palatable, the Article proposes to deploy it cautiously and modestly by anchoring its use to wildlife migrating off public lands. A combination of a strong protective federal interest in wildlife that resides even temporarily on public lands and trust responsibility over public lands may provide a basis for protecting wildlife as it moves across unprotected land to the next federal preserve. Additionally, the Article suggests that the doctrine should be used only to prevent complete conversion of private lands to a use that is hostile to migrating wildlife or to encourage the temporary removal of migratory barriers. Private landowners could prevent the doctrine's application by entering into an agreement with the appropriate federal agency. These agreements would function like restrictive covenants that attach to the property's title, and would be duly recorded-hence enforceable if the restrictions were ignored. This flexibility would allow development of trust-imprinted lands where development can be designed in a way that does not impede migrating wildlife.

Because of uncertainty about when, where, and how wildlife will respond to climate change and hence where migratory corridors or future protected areas will need to be, this Article also proposes a rolling federal public trust doctrine that keeps pace with wildlife as it moves.(fn6)

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To avoid placing huge swaths of the United States landmass under the shadow of the public trust doctrine, the Article recommends that as the trust moves to keep pace with migrating wildlife, land that is no longer useful as habitat could be released. This proposal would allow formerly trust-protected lands to reenter the market place and tax rolls unencumbered. In this way, as new lands come within the doctrine's reach, the release of other land could potentially achieve a rough regional balance of trust-protected lands along various migratory routes.

The Article develops these thoughts in Part II by describing the impact of climate change generally and on wildlife, specifically. It also introduces the reader to the importance and precariousness of migration corridors. Part III explores deficiencies in both federal land and wildlife laws and private land preservation mechanisms-like conservation easements, land banks, and land trusts-in an era of climate change. In Part IV, the Article discusses both the public trust doctrine and the federal government's trust responsibilities over public lands and resident wildlife, including when wildlife leaves those lands. Part V develops the three rationales supporting the existence of a federal public trust doctrine identified above-the doctrine's jurisdictional capaciousness, parallelism in state and federal governance responsibilities, and the Ninth Amendment. Part V also introduces the idea that courts might use the doctrine as a source of interpretative principles to evaluate the legality of any barriers to wildlife migration and as a basis for a hard look at these barriers. Part VI introduces the reader to suggested modifications of the doctrine to make it more politically salient. The Article concludes by suggesting that federal land managers and conservationists modestly use the federal public trust doctrine to fill gaps in existing federal wildlife protection laws and to counter deficiencies in private land preservation tools, and that courts use public trust principles to evaluate disputes...