Application of the Public Trust Doctrine to Modern Fishery Management Regimes

29 Pages Posted: 3 May 2012 Last revised: 12 May 2012

Kevin J. Lynch

University of Denver Sturm College of Law

Date Written: May 3, 2012

Abstract

As the state of the nation’s fisheries has declined in recent decades, fishery managers have increasingly sought more effective means for managing fishing efforts to prevent overfishing. The situation is particularly dire in marine fisheries, where studies have shown that populations of large predatory fish species such as tuna, marlin, and swordfish have declined by up to 90%. Conventional explanations for this and other declines in fish populations invoke the concepts of the “tragedy of the commons” and the “race to the fish.” The tools favored by economists to solve these problems typically involve creating some form of limited private property rights, and legal commentators have called for introducing these principles into U.S. environmental laws.

The creation of these property rights raises several questions regarding impact the public trust doctrine might have in the future. Specifically, does the public trust doctrine apply to fisheries, specifically to the large offshore fisheries that are located in the U.S. Exclusive Economic Zone? Does the public trust doctrine prohibit the creation of private property rights in this public resource? If private property rights are allowed, how should they be designed and created in a way that upholds the government’s responsibility to protect these public resources?

This Note examines the relevance of the public trust doctrine to modern fishery management, particularly in the U.S. Exclusive Economic Zone. Part I looks at the origins and nature of the public trust doctrine. Part I.A examines the geographic scope of the public trust doctrine and discusses the open issue of whether the doctrine applies in federal waters. Part I.B covers the uses protected by the doctrine and analyzes the impact of the doctrine on fishery management. Part II then looks at LAPPs in more detail and evaluates the arguments against them based on the public trust doctrine. The remainder of Part II demonstrates how properly designed LAPPs are consistent with the public trust doctrine.

Suggested Citation

Lynch, Kevin J., Application of the Public Trust Doctrine to Modern Fishery Management Regimes (May 3, 2012). NYU Environmental Law Journal, Vol. 15, No. 285, 2007; U Denver Legal Studies Research Paper No. 12-14. Available at SSRN: https://ssrn.com/abstract=2050569

Kevin J. Lynch (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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