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Home    |   Print Edition   |   Pushing the Boundaries of the Public Trust on the Last Frontier: A Study in Why the Doctrine Should Not Apply to Wildlife

Pushing the Boundaries of the Public Trust on the Last Frontier: A Study in Why the Doctrine Should Not Apply to Wildlife

Mar 26, 2020

Thomas Schumann

Volume 44 (2017) - Issue 2

In 2016, the United States Supreme Court decided Sturgeon v. Frost, which posed the question of whether the federal government may regulate activities on nonfederal lands within the hundred million acres of land designated for preservation under a 1980 federal statute, the Alaska National Interest Lands Conservation Act (ANILCA). The Court did not answer the question, instead vacating the Ninth Circuit’s interpretation of the relevant statutory language. Although inconsequential in itself, Sturgeon occupies a place in the history of litigation that originates in a rift between state and federal law governing subsistence hunting in Alaska.

The source of the rift was an Alaska Supreme Court decision holding that the state constitution created a public trust guaranteeing a broad right of access to natural resources, including for hunting and fishing. Therefore, it found that a state statute granting rural Alaskans preference to engage in subsistence hunting, required for Alaska to manage hunting on federal lands under ANILCA, was unconstitutional. The state supreme court thus established Alaska as one of the few states that recognizes the public trust doctrine in wildlife enforceable against the state. Remarkably, the court did so at the cost to Alaska of controlling hunting on federal lands. Alaska zealously guards the use of its natural resources against federal control, as illustrated by the subsequent litigation over subsistence hunting that led to Sturgeon. That the court would relinquish state control of hunting on federal lands shows its commitment to a public trust in wildlife unparalleled by other states.

Alaska may therefore appear to support extending the traditional public trust doctrine, based in navigable waters, to wildlife. However, this Note argues that public trust principles, which emphasize access, make the doctrine ill-suited to wildlife, which depends on conservation. The policy argument that the trust should extend to other natural resources, because it allows the public to enforce obligations against unaccountable agencies through recourse to the courts, is also ill-suited to wildlife management, which depends on agency expertise. Alaska’s experience with the public trust in wildlife, which guarantees broad access as an enforceable trust obligation, illustrates these contradictions. This Note begins by recounting the history of legislation dealing with subsistence hunting in Alaska and the litigation that led to Sturgeon. It then describes the traditional public trust doctrine, arguments for extending the public trust to wildlife, and why the traditional doctrine is incompatible with the purposes of wildlife law. Finally, it offers Alaska as an example of why the traditional public trust is incompatible with wildlife conservation.