Welcome to the Spring 2008 issue of The River Otter Journal. Wait, did I say 2008? Where have the months gone? For last spring’s issue, I wrote of the rite of passage for our flora and fauna to be renewed and introduce us to new generations of their species. I also wrote of the perils of climate change, perhaps most obviously marked by earlier arrivals of spring flowers and migrant birds each year, and widened spatial and temporal shifts of prey and predator, flora and pollinator. The last twelve months have given us a multiplicity of events and phenomena to remind us that the planet is in transition to a new climatic state – one it hasn’t experienced since life as we know it first appeared. Severe weather, drought, melting glaciers and ice floes, rising sea levels, temporal and spatial shifts of flora and fauna, all give rise to uncertainty about the planet’s future. Polar bears and penguins – the poster children of climate change – are, if I may use the phrase, both proverbially and literally at the tip of the iceberg. Speaking of icebergs, precisely as I write this, a large chunk of Antarctic ice has just broken from the Wilkins Ice Shelf, threatening the survival of the entire 6,000 square mile shelf.

Otters aren’t exempt from the effects of climate change, but their adaptability will serve them better through the transition than species that are less adaptable, more locally indigenous, and whose symbiotic dependents’ spatial and temporal shifts are disparate from theirs.

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Mary Christina Wood is a professor of law – and distinguished faculty fellow – at the University of Oregon. She specializes in natural resource law and American Indian law. Two years ago I heard her deliver an address from her paper “Nature’s Trust – Reclaiming an Environmental Discourse.” I haven’t thought the same way about environmental regulation since. This paper is available at her website (www.law.uoregon.edu/faculty/mwood). I recommend and encourage you to visit it and read all her publications and speeches available there. Her Doctrine of Nature’s Trust is bound to become legendary. While not directly or specifically pertaining to otters, it certainly involves otters inasmuch as they are a component of the biodiverse community it attempts to affect. I take this opportunity to introduce the Doctrine to you by excerpting this paper, that you will have a new model for evaluating environmental protection. The ideas and quotes expressed below are Professor Wood’s, unless otherwise attributed, and are published here with her consent and encouragement.

Four statutes enacted in the mid twentieth century form the foundation for environmental protection: The National Environmental Policy Act, Clean Air Act, Clean Water Act, and Endangered Species Act.

As a consequence, we have more environmental law than any other country in the world. These statutes give agencies tremendous authority to oversee the protection of environmental quality. The problem is that, along with this authority, these laws also give those agencies discretion to permit the very environmental degradation that the statutes were designed to prevent. Agency discretion has bred institutionalized permissiveness. And now, the overarching mindset of nearly all agencies is that permits are there to be granted until they have the sense that the next one would break the camel’s back. The problem with that approach is you are left with a very diminished camel. That is why we have desertification, deforestation, a hole in the ozone layer, dead zones in our oceans, and an atmosphere dangerously heating up.

The paradigm of Nature’s Trust is based on public trust doctrine, the premise of which is that there exist natural resources that so serve the greater good, they should be retained in trust by the sovereign for the continued welfare of present and future generations. The corpus of Nature’s Trust encompasses the natural resources vital to society’s welfare and human survival.

In Illinois Central Railroad v. Illinois (1892), the Supreme Court issued a landmark decision regarding the public trust of navigable waterways that set a precedent for future judgments, opining, “The state can no more abdicate its trust over property in which the whole people are interested … than it can abdicate its powers in … the preservation of the peace.” In Geer v. Connecticut (1896), detailing common law principles of sovereign trust ownership of air, water, sea, shores, and wildlife, the Court judged, “The power or control pledged in the State, resulting from this common ownership, is to be exercised … as a trust for the benefit of the people.”

The Doctrine of Nature’s Trust essentially reframes administrative law to be a vehicle for environmental protection rather than environmental destruction based on these decisions and calls upon the people to enact it. “We need a vision ‘so compelling and inclusive that masses of people will wind up fighting to protect our planet without remembering when or why they even started along the path’ (Al Gore, 2007). This is the moment to be resolute and clearly frame government’s trustee duty to protect generational inheritance of natural assets. It embraces, in exactly the same way, the outer limits of our atmosphere and the smallest cluster of trilliums at the edge of a wetland – because this way of thinking is reflected in the web of life itself. This is Humankind’s historic moment to claim Nature’s Trust, Earth’s Endowment, for our descendants.”