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The Public Trust Doctrine in Environmental and Natural Resources Law: Chapter 1 (Introduction)

The Public Trust Doctrine in Environmental and Natural Resources Law, Carolina Academic Press,
pp. 1-56, 2013
Lewis & Clark Law School Legal Studies Research Paper No. 13/2013

The public trust doctrine (PTD) is an ancient property law doctrine which first surfaced in Roman
law in the Justinian Code, was revived in medieval England largely through the efforts of Sir
Mathew Hale, and became entrenched in American law in the nineteenth century through the
process of statehood. In the twentieth century, the doctrine became a favorite of the law
professoriate and the environmental community for its potential to recognize public rights in
private property. Thus, the doctrine both promotes public access to trust resources and justifies
public regulation of them. It also equips the public with the right to challenge governments
concerning their management of PTD resources.

We offer the first casebook on the PTD, reflecting the rich history and considerable diversity of
the doctrine. The latter is the product of an assumption that the doctrine is one of state law, a
perception that we think is erroneous because the origins of the American PTD lie in bilateral
federal-state agreements admitting states to the Union. Actually, the PTD is an inherent attribute
of sovereignty, and should apply to both the federal and state governments. The doctrine is
increasingly recognized as applicable in other as countries as diverse as India, the Philippines,
Kenya, and Brazil as well.

The wellspring of the PTD in American law lies in antimonopoly sentiment widespread in the
nineteenth century, which continues to produce a vibrant body of case law concerning public
access to trust resources. That case law - as well as state constitutions and statutes - has also
expanded the scope of trust resources from lands submerged beneath navigable waters to
wetlands, beaches, parklands, wildlife, and groundwater. Internationally, the doctrine has
encompassed concepts of sustainable development and the precautionary principle, and thus is
frequently linked to the publics right to life, health, and environmental protection. There are
ongoing efforts to use the PTD to combat climate change by applying it to curb carbon emissions
to sustainable levels.

This casebook surveys all of these developments. We think the book, at only some 400 pages, is
ideal for an advanced course or a seminar in environmental, natural resources, or property law.
The casebook will be accompanied by a teachers manual.

The public trust doctrine is the principle that certain resources are preserved for public use, and that the government is
required to maintain them for the public's reasonable use.

The ancient laws of the Roman Emperor Justinian held that the seashore (defined as waters affected by the ebb and flow
of the tides) not appropriated for private use was open to all. This principle became the law in England as well. In
the Magna Carta in England centuries later public rights were further strengthened at the insistence of
the nobles that fishing weirs which obstructed free navigation be removed from rivers.
These rights were further strengthened by later laws in England and subsequently became part of the common law of
the United States as established in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892). In that case the Illinois

Legislature had granted an enormous portion of theChicago harbor to the Illinois Central Railroad. A subsequent
legislature sought to revoke the grant, claiming that original grant should not have been permitted in the first place. The
court held that common law public trust doctrine prevented the government from alienating the public right to the lands
under navigable waters (except in the case of very small portions of land which would have no effect on free access or
The public trust applies to both waters influenced by the tides and waters that are navigable in fact. The public trust also
applies to the natural resources (mineral or animal) contained in the soil and water over those public trust lands.

This doctrine has been primarily significant in two areas: land access and use, and natural resource law.

Navigable waters[edit]
See also: Navigable servitude
The doctrine is most often invoked in connection with access to the seashore. In the United States, the law differs among
the fifty states but in general limits the rights of ocean front property below the mean high
tide line. Massachusetts and Maine (which share a common legal heritage) allow private ownership as far as the mean
low water line but allow for public rights to fishing, fowling and navigation (with the necessary permits). These two states
are the most restrictive of public rights and represent the exception. Most states allow free access to the intertidal zone for
walking, swimming, sunbathing, etc. This does not always include the right to cross private land to reach the shore but
prevents private owners from excluding the public below the mean high tide line. This line is calculated as the average
high tide line of a 14.1 year cycle which means in practical terms that neither property owners nor the public are likely to
be able to identify its precise location. On tidal waters the burden of proof therefore falls to the property owner as it would
be trespassing for the public to willfully cross above the mean high tide line but not to miscalculate its location. On smaller
creeks and streams the burden of proof falls on the party claiming the navigable servitude, Harrison v. Fite, 148 F. 781
(1906) .

Natural resources[edit]
The doctrine has also been used to provide public access across and provide for continued public interest in those areas
where land beneath tidally influenced waters has been filled. In some cases, the uses of that land have been limited (to
transportation, for instance) and in others, there has been provision for public access across them.
The doctrine has been employed to assert public interest in oil resources discovered on tidally influenced lands
(Mississippi, California) and has also been used to prevent the private ownership of fish stocks and crustacean beds.
In most states in the United States, lakes and navigable-in-fact streams are maintained for drinking and recreation
purposes under a public-trust doctrine.

The public trust doctrine at Mono Lake, California[edit]

Mono Lake, an ancient saline lake in California's Eastern Sierra, was long threatened by the diversion of its tributary
streams south to Los Angeles, thereby lowering the water levels. In 1983 the California Supreme Court ruled in National
Audubon Society v. Superior Court that Mono Lake is a public trust resource of the state of California. This was an
important victory for the Mono Lake Committee, the National Audubon Society, and other advocates for the lake.
Expanding the ancient doctrine to include recreational and aesthetic values and the importance of the lake to wildlife, the
Court decreed that Mono Lake has "public trust values" that the state has an obligation to maintain. In the words of the
Court, "The public an affirmation of the duty of the state to protect the people's common heritage of streams,
lakes, marshlands and tidelands."
The Court ruled that the water rights of Los Angeles and the public trust values of Mono Lake had to be more fairly
balanced, and that the water rights of the City of Los Angeles would have to be revisited to assure proper public trust
protections. The Mono Lake Committee has been working since 1978 to achieve this balance.

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Written by: Lucas Bento
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The biotic community produces a variety of societal benefits which ordinarily flows well beyond the system's physical boundaries.
Conservation biology suggests that the activities caused by human activities are adversely affecting the health of ecosystems, which
could, in the long run, threaten our very own existence. [2] It is axiomatic that the conservation of the natural world is a difficult task and
therefore necessitates the synergy of many tools.
In the Common Law jurisprudence, a trust is 'the legal relationship between one person having an equitable ownership in property and
another person owning the legal title to such property.'[3] In the context of the Public Trust Doctrine, the legal title is vested in the state
and the equitable title in the public. Thus the state is responsible as trustee to manage the property in the interest of the public. The
PTD has been praised by the environmentalist community as 'the most promising legal basis upon which individual members of the
public could maintain a lawsuit to protect natural resources from needless degradation and destruction.' [4] In contrast, critics contend
that it is 'more rhetorically than legally charged.' [5] The purpose of this article is to assess the relevance of the PTD to environmental
protection. First, precautionary principles of environmental policy will be explored. Then, the PTD will be examined, focusing primarily
on the US jurisdiction. It is argued that the doctrine has been manipulated at two levels: the conservative view and the conservationist
view. Third, the application and use of the doctrine as a branch of trusts law will be analysed. Its scope and efficacy will then be
assessed in light of environmental protection. Finally, I will consider the PTD's relevance in the UK and other jurisdictions.


In Lead Industries Association v Environmental Protection Agency, [6] the court held that 'man's ability to alter the environment
often far outstrips his ability to foresee with any degree of certainty what untoward effects these changes may bring.' Accordingly, when
an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and
effect relationships are not fully established scientifically.[7] There are four central components of the principle: taking preventive action
in the face of uncertainty; shifting the burden of proof to the proponents of an activity; [8] exploring a wide range of alternatives to
possibly harmful actions; and increasing public participation[9] in decision making.[10]
Contrasted with other common law doctrines, the PTD can be invoked to prevent the destruction of trust property in advance of the
occurrence of any destruction:[11] 'it does not require that dead fish float on the surface of rivers and streams before its farsighted
environmental protections can be invoked.' [12]

Any attempt to define the doctrine is automatically met by entrenched terminological difficulties. In the US, the doctrine has developed
and been enforced at the state level, leading to its uneven application [13] and amorphous nature.[14] Legal classification is important
because this affects the application of the doctrine, its reach in scope, and therefore its relevance. Environmental protection rules
require uniformity in their application so as to strengthen the public's confidence in it and in order to avoid any disparity in their
implementation. Indeed, an effective legal doctrine must be cohesive, consistent, and predictable. [15] A precise definition may not,
however, be desirable because as environmental concerns increase, legal tools must contain a certain degree of flexibility in order to
respond to ecological changes. In essence, the PTD is the legal receptacle for the government's long-term duty, as supported by the
judicial system, to manage and perpetuate the public enjoyment of natural resources.[16]

The origins of the doctrine can be traced back to Roman times. According to The Institutes of Justinian, 'by the law of nature, these
things are common to mankind - the air, running water, the sea, and consequently the shores of the sea.' [17] However, Roman principles
of acquisition of property were based on the premise of abundance.[18] Nowadays, the enlarging world community has made some
resources scarce which resulted in economic and ecological interdependence.[19]
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Bracton introduced the doctrine to the English common law heritage in the mid 13th century.[20] He borrowed the Roman concept of res
communes declaring the shores of the sea common to all and inalienable. [21] However, in the 17th century, it is arguable that the
doctrine of laissez faire somewhat curtailed the apparent resurgence of the public ownership concept that originated in Roman times.
This aversion towards communally owned property led to the view that everything capable of ownership should be possessed. [22] Land
in England was to be held by private individuals subject to limited public rights akin to 'easements for public use'. [23] The PTD did not, as
a result, fully develop in England. It has, however, influenced other common law jurisdictions, primarily the jurisprudence of the US.[24]

A piscatorial expedition to inquire into the true origin of the public trust doctrine in the US could be an entire essay in its own right. The
doctrine became part of the US jurisprudence via the 'Equal Footing Doctrine.' Under this latter, every US state starts with the same
rights and duties, but the precise interpretation of the doctrine is left to the judicial and public policy decisions of each individual state,
so that the outcomes in the several states will necessarily differ. [25] This is not necessarily disadvantageous for it allows states to
effectively tailor public trust concepts so that they best protect the public's interest in the common natural landscape of each state. Two
cases can be identified giving birth to the doctrine in the US. In Arnold v Mundy,[26] the court rejected a claim of a private party's
exclusive right to oyster beds, affirming that 'the rivers that ebb and flow, the bays, and the coasts are common to all citizens and are
sources from which they can find their sustenance.' [27]

The other case, Illinois Central Railway Co. v. Illinois,[28] has been described as the 'lodestar' case involving the public trust in
America.[29] In this case the Illinois state legislature tried to repeal a fee simple grant of submerged lands in Lake Michigan to the Illinois
Central Railroad Company. The US Supreme Court held that navigable waterways were to be held in trust for the benefit of the entire

At that period in time, the public trust was used to protect, and prohibit interference with, three uses of the trust property, namely for the
purposes of commerce, navigation, andfishing.[31] However, contemporary societal concerns with environmental protection and
resource conservation extend beyond navigable waters to include far ranging elements of our ecosystem, such as the ozone layer and
terrestrial wildlife. Moreover, our economy no longer depends so exclusively on water navigation. The economy nowadays navigates by
air, by motor vehicle, and indeed by way of the electromagnetic spectrum. [32] As Lazarus rightly points out, the protection of commerce
is 'hardly a focus of resource protection values - indeed more often than not it serves as a counterweight' [33] and can present significant
risks to ecological resources.[34] Furthermore, recent studies have demonstrated how fishing - a commercial activity - can adversely
impact the environment.[35] It is therefore submitted that the doctrine originally protected uses that arguably are antithetical to
environmental protection. However, the PTD emerged in the era of the American industrial revolution, a time where commerce was
promoted as the national interest and where environmental protection had, at best, a secondary role in society.

A major proponent of the doctrine, Professor Sax, called for citizen's greater participation in protecting natural resources and thus
greater utilization of the doctrine to achieve that aim. He interprets the doctrine as the 'name courts give to their concerns about the
insufficiencies of the democratic process.' [36] Indeed, as will be demonstrated throughout this essay, the doctrine has been invoked in
litigation by private parties, such as citizens, against government,[37] between private parties,[38] and by public officials against private
and/or public bodies.[39]

The trust relationship existent in the PTD is particularly analogous to that of a charitable trust, which may incorporate a public purpose,
government trustee, and generalized beneficiaries.[40] The trust law device thus adds a dimension of classes of beneficiaries which
expands its scope beyond the two party framework present in private law systems and introduces an intertemporal dimension which
greatly benefits the task of protecting the environment.[41]

The PTD's capacity to protect trust resources from contemporary environmental threats is highly dependent on the individual natural
resource managers who, as trustees, have the responsibility to implement the doctrine. In the US, each state is a trustee for the public
trust property within state territory. The duties of individual states are duties of a trustee and not simply the duties of a 'good business
manager.'[42] In other words, the doctrine places states under fiduciary obligations to protect trust resources [43] and prevent private
appropriation. Trustees have an obligation not only to preserve property subject to the public trust, but also to seek injunction against
and compensation for any diminution of the trust corpus.[44] According to Illinois Central,[45] this duty obliges the state to ensure that the
public trust property 'can never be lost, except as to such parcels as are used in promoting the interests of the public therein, a
disposition to fulfil Public Trust purposes or a disposition of trust lands that will not substantially impair trust use."[46]
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The doctrine has been characterised as the unification between democratic management [47] of the environment and an efficient legal
device to ensure protection of resources. Indeed, the state legislature, as trustee, is the one best placed to manage such resources for
the benefit of the public in a democracy, because the 'legislature most closely mirrors the will of the public.' [48] However, governmental
power to protect the environment is not currently absolute, nor is governmental accountability for its environmentally destructive
activities total.[49] Moreover, governmental trustees are not insulated from political pressure. Decision makers are particularly vulnerable
to persuasion from special interest groups and where a strong and vocal minority has a political advantage over a diffuse majority,
decision-making may not be truly democratic.[50]
It is generally accepted throughout American states that in managing trust resources, trustees must undertake a balancing of interests
exercise between the impairment of the public trust and another public interest. In State v. Public Service Commissioners,[51] the
court held that 'the degree of impairment must be weighed against the other pubic interests to be served and unless the impairment so
viewed is substantial the impairment is not a violation of the trust.' [52] Thus, the doctrine was clearly not designed to be a barrier to
progress. It is used to promote rational and balanced development.[53] This compromise undermines the doctrine's strength in the
protection of the environment, as 'protection must be absolute, not partial.' [54] Ideally, the state should not engage in balancing social
policies or cost benefit analyses. Accordingly, the doctrine should be recognised as an 'inviolable shield protecting the environment.'[55]
Court decisions are heavily studied, examined and criticised. However, little is known about natural resource managers, the trustees of
the public trust. Indeed this is important because it is ultimately trustees who determine what activities are in the public interest. [56] A
powerful criticism of entrusting the public trust to the state is that it places responsibility for protection of natural resources in the hands
of individuals who share 'our society's presuppositions and understandings and thus are unlikely to provide far-reaching protection for
the environment.'[57] Thus, it is arguable that no human trustee, burdened with the types of natural impulses that drive humans to over
consumption, will be capable of transcending this nature to manage natural resources in a responsible fashion.[58]


Delgado strongly argues that that the trust model is inherently antagonistic to the promotion of innovative environmental thought. He
points out that 'a trust is by its nature, conservative: its purpose is to protect a corpus and put it to some use.' [59] Arguably, modern
environmental thought dictates that some resources must indeed be conserved which is antithetical to 'putting something to some use.'
However, one of the rationales for the trust doctrine is said to be that it serves a function not performed by ordinary market transactions,
which cannot reflect gains or losses to common resources, or may do so only with difficulty. Indeed, 'from the bald eagle to the blue
whale and snail darter, natural resources have values which are not fully captured by the market system.' [60] Planning law already exists
in order to balance development[61] and environmental concerns, but planning law may operate with a presumption in favour of
development and subsequent alterations of land use may give rise to the requirement to pay compensation. [62] The Public Trust, on the
other hand, is immune[63] from a 'takings claim' which holds that private property shall not be taken for public use, without just
compensation.[64] Scientific uncertainties surrounding the management of the natural environment complicates the design of
prophylactic strategies and thus calls for a greater reliance on precautionary principles. Critics of the doctrine point out that the trust
concept was adopted before we had explored adequately humanity's relationship with the environment. [65] However, the PTD is not
immutable.[66] Indeed, the trust device is probably one of the most flexible legal instruments in the common law. [67] Thus, the focus of
the trustees' duties can change in response to modifications in human habits that threaten environmental resources while leaving the
essential trust obligation intact.[68] However, utilizing environmental concepts under an 'ownership model' such as the trust creates a
system in which the doctrine can be ineffective because it 'leaves traditionally phrased trusts vulnerable to shifting public visions of what
constitutes a beneficial use,'[69] which could benefit development interests.

In some states, the scope is restricted to the original economic uses of the doctrine, [70]namely fishing, navigation and commerce.
However, a change in the application of the doctrine from protecting these uses to preventing overexploitation of the environment is
occurring. Indeed, in some states, the doctrine has been invoked to protect hunting, swimming, recreational boating, aesthetical values,
climate scientific study,[71]environmental and ecological quality, open space,[72] wildlife habitat preservation,[73]water allocation[74] and
ecotones such as wetlands.[75]

5.1TheConservativeView: MaintainingtheEconomicPrecedent

The conservative view argues that expansion of the PTD for no other reason than to protect the environment simply ignores the
economic precedent established by the original doctrine itself. Courts have been reticent to allow advances in ecological knowledge or
the potential of new environmental threats to invade the sanctity of private property interests that some jurists and legal
scholars[77] perceive as the most essential element of
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American culture.[78] This approach arguably undermines the doctrine's relevance to environmental protection. As a result of the
Western trend favouring individualism, locus standi requirements militate against group or aggregate interests. On the other hand, the
PTD recognises the justiciability of current environmental issues in actions brought by citizens, and no requirement of land ownership is
involved. However, there is some authority[79] limiting the considerations of public trust to state residents, which, as Redgwell argues,
has important ramifications for the efficacy of the PTD in environmental litigation. [80] Stone went as far as to argue that trees should
have standing,[81] but unsurprisingly, this has not been popularly received within the jurisprudential arena.

The doctrine protects public property. Collective ownership is subject to the familiar 'tragedy of the commons' where the lack of welldefined property rights in a commonly used resource leads to waste by overuse. [82] It is therefore the duty of the State to protect the
environmental rights of citizen beneficiaries from the exploitive tendencies of the beneficiaries themselves. [83] However, people,
including trustees themselves, do not always act rationally; their market behaviour may be distorted by the 'tyranny of small
decisions'[84] which essentially means that people lack the ability to foresee the wider consequences of their decisions. Indeed, many of
our current environmental problems can be traced to the tyranny of small decisions. [85] The tragedy of the commons therefore
undermines the doctrine's capability to protect individual elements of the environment, subject, however, to active trusteeship which
would prevent any such tragedy from occurring.

Some courts have found it increasingly difficult to expand the doctrine to environmental protection because of its anthropocentric
nature. Indeed, Tribe points out that the present approaches to resource management and environmental policy formation emanate
from a homocentric perspective.[86] In the context of PTD, rarely has a court acted to protect the resource itself from destruction or
degradation.[87] The goal of the doctrine is therefore to protect certain resources not because it is either an ethical thing to do or a
positive amenity, but because these resources are absolutely essential for human physical, spiritual and, economic well-being. This
undermines the doctrine's relevance to environmental protection because it fails to value the importance of the environment per se,
and as a result protects uses which are beneficial to human beings which are not necessarily always consonant with environmental
conservation. This anthropocentricism is evidently attributable to basic private trusts law. A trust must [88] benefit a humanbeneficiary.
In Re Kelly,[89] Meredith J. stated that the trust must benefit the lives of 'human beings, not of animals or trees in California.'


Scientific uncertainty surrounding the natural environment complicates judicial ability to adjudicate on the matter. Decisions in
environmental claims are different from those in other private law disputes. The former requires not only an appreciation of often highly
technical scientific data, but also that distinct policy choices be made concerning the allocation of scarce resources within society.
The creation of specialist environmental tribunals, such as those in Australia, could remedy these difficulties. In the meantime, it is
submitted that a precautionary approach ought to be taken by courts.
The flexibility of the common law to respond to societal changes may be one factor weighing in favour of judicial review. Proponents of
the doctrine nonetheless place an undue reliance on a pro-environmental judicial

bias.[91] However, judges are not scientifically trained and depend only on submissions made in court. The conservative view holds that
technically incompetent courts should despise efforts to make themselves 'balancing artists that are intent on finding balancing points of
environmental protection with competing social values.'[92] Indeed, judicial activism has the effect of pre-empting a full and balanced
discourse both to test and to shape society's relationship with the natural environment. [93] Judges may frame opinions to avoid
discussing certain issues, particularly in a politically sensitive area like public trust [94] and which in result would deprive the claimant an
opportunity to successfully invoke the doctrine in an environmentally sensitive case.

5.2.TheConservationistView: ExpandingtheDoctrine

While the traditional version of the doctrine protected discrete elements of the natural world i.e. a river, a stretch of shoreline or tidal
area,[96] we now understand that this is not sufficient.[97] Biotic systems are too complex, humanity's scientific understanding too
rudimentary to attempt to isolate individual components of the environment as essential. [98] In Just v. Marinette County,[99] the court
upheld the use of the doctrine for environmental protection as a valid public purpose, reasoning that without protection of the
environment, individual trust rights, such as recreation and fishing, would become impossible. While it is impossible, given the scope of
this paper, to identify how each jurisdiction has dealt with the public trust doctrine, it is useful to highlight some of the instances where
the courts have expanded the doctrine.
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It is hard to imagine another natural resource that supports as many people, and is equally threatened by them, in such a significant
way than water.[101] Traditionally, the doctrine applied to all navigable waters but its application has been extended so as to apply to
non-navigable and nontidal waters.[102] In this context, the PTD can override prior legal claims. As a result, water rights that are
demonstrably harmful to a navigable river or estuary can be set aside by application of the PTD, regardless of how old those prior
proprietary claims may be.[103]
Most jurisdictions incorporating ecological protection into the purposes of their public trust doctrine have cited the seminal California
decision in Marks v. Whitney.[104] In that case the California Supreme Court held that environmental preservation of tidelands in their
natural state was encompassed by the public trust. Such protection was necessary,

'so that [tidelands] may serve as ecological units for scientific study, as open space, and as

This is a significant departure from the reasoning of traditional public trust application, as the California precedent recognizes protection
for 'environmental resources in their own right, not simply because humans use them.'[106]
In National Audubon Society v. Superior Court of Alpine County (the Mono Lake litigation)[107] the plaintiffs, invoking the PTD,
successfully sought protection of, inter alia, 'scenic views of the lake and its shore, the purity of the air, and the use of the lake for
nesting and feeding by birds.'[108] This may lead to the conclusion that 'Mono Lake may stand for the proposition that the PTD is capable
of reaching out and encompassing the ecological values of an entire functioning ecosystem.'[109] In similar fashion, a court in
Wisconsin applied the doctrine to protection of wetlands on the grounds that wetlands play an important role in a healthy environment.

Humans are responsible for the most rapid process of extinction of species in the history of the planet. [111] Although no Public Trust
case has applied the doctrine to protect biodiversity per se, it seems clear by analogy to existing case law that the doctrine could be an
effective tool for protecting biodiversity, particularly, but not exclusively,[112] where the species at issue are aquatic or associated with
riparian ecosystems.[113] In Greer v. Connecticut,[114] the US Supreme Court held that individual states owned wildlife (ferae
naturae)[115] found within their borders for the common benefit of all the people. [116]Following that decision, a court in Virginia held that
'under the PTD, the state [of Virginia] and the US have the right and the duty to protect and preserve the public's interest in natural
wildlife resources. Such right does not derive from ownership of the resources but from a duty owning to the people.' [117] These judicial
pronouncements are remarkable but no state has gone as far as the States of Alaska and Hawaii. Those States have constitutionalised
principles of the doctrine so as to protect biodiversity.[118] The marine biodiversity in Alaska is a rich ecological heritage as its continental
shelf waters provide habitat for most of the nation's marine mammal population. [119] Inevitably, decisions will be made to sacrifice part of
our common heritage to promote growth to support current and future generations. However, by applying the public trust doctrine,
governments and trust managers will be forced to take hard look at activities that adversely affect wildlife ecosystems.[120]

In 1935, the US Historic Sites and Buildings Act was enacted to protect certain common resources. These include elements of the
natural environment such as national parks, seashores forests and wilderness areas. All are owned or managed by the government in
trust for the people. Creation of the National Parks was based on the wider public trust doctrine's principle that 'certain interests are so
particularly the gifts of nature's bounty that they ought to be reserved for the whole of the populace.[121]

It is arguable that all this expansion is in fact a failure. Judges are attempting the impossible by trying to identify which specific natural
quality and uses are necessary for social-well being and therefore deserving of Public Trust protection. However, the most expansive
development of the PTD will likely occur in state courts. [122] Indeed, as courts began to realize the importance of certain natural
resources in sustaining the human species, they extended the scope of the doctrine. [123] On this ground, the Common Law's capacity to
adapt to societal and environmental needs is to be praised. Furthermore, Sax defends the use of courts as judges are outsiders to
environmental conflicts and therefore they come to the problem with no preconceived views. 'They are relatively immune from political
pressures and are without the institutional restraints of administrators.'[124]

The central preoccupation of the doctrine has been to maintain the broadest possible access to certain natural resources for public use.
Indeed, even if alienation of the trust property is permissible, public access must still be available.[126] Access however can be
antithetical to environmental protection, as the latter sometimes requires the limitation of access for preservation purposes. Moreover, it
is argued that 'to preserve access is not enough [] the PTD must therefore be applied as an affirmative instrument for ecological
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The US Constitution does not provide for environmental protection and only a mere third of state constitutions mention it. US
jurisprudence lacks strong and useful mechanisms to support, analyze, or regulate either the cumulative effects of decisions affecting
the environment or the downstream effects on future generations. [128] As a result of this federal constitutional handicap, the doctrine
has been incorporated in several state constitutions.[129] For instance, Art.11 of the Hawaii Constitution provides that 'all public natural
resources are held in trust by the State for the benefit of the people.' These provisions protect policy judgments from the ebb and flow
of the political tide.[130] Such added protection is particularly desirable at a time when States engage in a 'race to the bottom', where the
lowest permissible environmental regulation requirements are adopted in order to pursue economic goals through industrial gains.
Indeed, if environmental protection is to be effective, it must be intergenerational. As Thompson argues, there is a lack of accounting for
the future in environmental legislation[131]because the current generation will have an inevitable bias toward present consumption.
Thus, as Van Tol points out, 'it appears that the most satisfactory approach to expanding the doctrine has been through the
elevation of environmental protection to a constitutional level followed by legislation which specifically defined the resource covered by
the trust, and the rights and duties created by the trust.'[133]

The precise legal basis for the doctrine's application remains fairly vague and this undermines the ability to adopt this expansive
interpretation uniformly. The doctrine was described by one commentator as 'a misguided effort to dredge up ancient flotsam in a way
that obscures contemporary environmental issues instead of illuminating them.'[134]Arguably, the laissez faire pro-development
government upon which doctrine is premised is an apparition of the past. [135] However, it is submitted that nowadays, although
governments engage in rhetorical efforts to protect the environment, their practice suggests otherwise.[136]


The doctrine did not mature in England but its legal spirit can be identified in different instruments. The National Parks and Access to
Countryside Act 1949 ('The Trust') was enacted to ensure 'the permanent preservation for the benefit of the nation of landsof beauty
or historic interest andthe preservation of their natural aspect, features and animal and plant life.' Such lands may only be declared
alienable with the authority of Parliament. This is analogous to trustee-like responsibilities under the PTD. However, the Trust suffers
from a lack of systematic protection of species and habitat because, in practice, it is dependent both upon individual bequests and
fundraising campaigns to finance the acquisition of property. The law of charities in the UK also provides for environmental protection.
The charitable trust is an inherently more democratic and public spirited mechanism than the private trust, and less exclusionary in
scope. To this end, it shares common characteristics with the public trust doctrine. Whereas the latter can be invoked by individual
beneficiaries the task of enforcing charitable trusts falls on the Attorney-General, as parens patriae of the public interest. It is not evident
why the public trust doctrine has failed to evolve in England, but it is arguable that this may have been caused by the common law's
abhorrence of ownerless things.[137] The Public Trust, as public property, had to therefore yield to principles of private proprietary
ownership. Moreover, the combination of the omnipresence and dominance of central government in the making of environmental
policy as well as the evolution of other instruments, such as charities, have denied any opportunity for the doctrine to be resurrected in
England. In contrast to the position in England, the doctrine of Regalia Majora in the land law of Scotland comprises rights which are
held by the Crown in trust for the public and which cannot be alienated. 'In effect the concept operates similarly to the PTD.[138]

In India, the courts have accepted the public trust doctrine as part of common law, applying it expressly to three recent cases. [139] In
Hong Kong, the doctrine is part of the Basic Law.[140] In Sri Lanka, the doctrine has also been relied upon to protect the environment.
The doctrine has, however, little role to play in contemporary Australian environmental protection [142] but nevertheless it has been
upheld by the New South Wales Land Appeal Court. [143] In Canada, the doctrine is virtually non-existent,[144] although the Yukon
Environment Act [145] codifies the public trust concept.[146] The international presence of the doctrine, albeit limited, strengthens the use
of the trust concept as a tool for global and intergenerational environmental justice and equity. To this end, and as environmental issues
migrate beyond national frontiers, it has been suggested that an international body, the Common Heritage Authority, be created to hold
certain natural resources of the planet in trust for the benefit of present and future generations.[147]

This article has considered the PTD's relevance to environmental protection in multiple jurisdictions. It is evident that the degree of
relevancy ultimately depends on different interpretations and implementations of the doctrine in different states and different
jurisdictions. In some of these, the doctrine has been shackled to its original precedent, namely protecting the uses of commerce,
fishing and navigation. It is submitted that restricting the PTD to those uses is incompatible with modern environmental thought. In other
states, however, the doctrine is being extended to encompass conservation needs, at a time where the environment is being lethally
threatened. Our analysis has demonstrated that the PTD's focus may be moving from anthropocentric to biotic protection, thus
strengthening its relevance to environmental protection. As environmental concerns increase, other jurisdictions are equipping their
legal frameworks by adopting the PTD as part of their conservation armoury. It is clear that other tools, such as charities, taxation
policy, legislation and education, will be of equal value to the everlasting mission of protecting our natural habitat. With its foundations in
trusts law, the PTD, however,holds the potential to provide the groundwork for intergenerational environmental justice. To this end, the
expansion of the doctrine's application is to be welcomed, and encouraged, if its relevance to environmental protection is to be
uniformly strengthened throughout American states, and hopefully, throughout the world.
Lucas VM. Bento is a Senior Consultant at Storti & Schmidt LLP. He will be joining Holman Fenwick Willan in 2010 as a
Trainee Solicitor in London. He studied at the Universities of Warwick, Bristol and Oxford. He is currently undertaking a
post-graduate qualification at the Federal University of Rio de Janeiro in Oil & Gas Law. In parallel to his work, he is an
adviser to Cambridge Social Responsibility

Consent Decree
A settlement of a lawsuit or criminal case in which a person or company agrees to take specific actions without admitting
fault or guilt for the situation that led to the lawsuit.
A consent decree is a settlement that is contained in a court order. The court orders injunctive relief against the defendant
and agrees to maintain jurisdiction over the case to ensure that the settlement is followed. (Injunctive relief is a remedy
imposed by a court in which a party is instructed to do or not do something. Failure to obey the order may lead the court to
find the party in Contempt and to impose other penalties.) Plaintiffs in lawsuits generally prefer consent decrees because
they have the power of the court behind the agreements; defendants who wish to avoid publicity also tend to prefer such
agreements because they limit the exposure of damaging details. Critics of consent decrees argue that federal district
courts assert too much power over the defendant. They also contend that federal courts have imposed conditions on state
and local governments in Civil Rights Cases that usurp the power of the states.

Most civil lawsuits are settled before going to trial and most settlements are private agreements between the parties.
Typically, the plaintiff will file a motion to dismiss the case once the settlement agreement has been signed. The court then
issues a dismissal order and the case is closed. However, if the defendant does not live up to the terms of the settlement
agreement the plaintiff cannot reactivate the old lawsuit. This means filing a new lawsuit with the court and going to the
end of the line in order to process the case.
In more complex civil lawsuits that involve the conduct of business or industry, and in actions by the government against
businesses that have allegedly violated regulatory laws, consent decrees are regularly part of the settlement agreement. A
court will maintain jurisdiction and oversight to make sure the terms of the agreement are executed. The threat of a
contempt order may keep defendants from dragging their feet or seeking to evade the intent of the agreement. In addition,
the terms of the settlement are public.
Certain types of lawsuits require a court to issue a consent decree. In Class Action settlements, Rule 23 of the Federal
Rules of Procedure mandates that a federal district court must determine whether a proposed settlement is fair, adequate,
and reasonable before approving it. Under the Antitrust Procedures and Penalties Act (the Tunney Act), 15 U.S.C.A.
16(b)-(h), the court must review proposed consent decrees in antitrust suits filed by the Justice Department. The statute
directs the court to review certain items, including whether the decree advances the public interest.
The U.S. Supreme Court, in Local No.93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 106 S.Ct. 3063, 92
L.Ed.2d 405 (1986), ruled that consent decrees "have attributes both of contracts and of judicial decrees." The division
between contracts and judicial decrees suggests that consent decrees are contracts that resolve some issues through the
consent of the parties. However, for some issues, the decree contains judicial acts rendered by the judge, not the parties.
Commentators have noted that these dual attributes require a court to determine when it is appropriate to "rubber-stamp"
a proposed settlement and when it is more appropriate for the court to treat the proposal as it would any judicial order.
The federal courts have been criticized for using consent decrees to reform prison systems, school systems, and other
government agencies. Some courts have maintained oversight of agencies for many years and have imposed conditions
that have cost state and local governments substantial amounts of money. Congress intervened in one litigation area
when it passed the Prison Litigation Reform Act of 1995 (Pub.L. 104-134, 110 Stat. 1321). The law imposed strict limits on
what federal courts could do in the future to improve prison conditions through the use of consent decrees. In addition, it
gave government agencies the right to seek the termination of consent decrees, many of which had lasted for decades.

Further readings
Kane, Mary Kay. 1996. Civil Procedure in a Nutshell. 4th ed. St. Paul, Minn.: West.
Mengler, Thomas M. 1988. "Consent Decree Paradigms: Models Without Meaning." Boston College Law Review 29.

Civil Action.
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

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consent decree n. an order of a judge based upon an agreement, almost always put in writing, between the parties to
a lawsuit instead of continuing the case through trial or hearing. It cannot be appealed unless it was based upon fraud by
one of the parties (he lied about the situation), mutual mistake (both parties misunderstood the situation) or the court does
not have jurisdiction over the case or the parties. Obviously, such a decree is almost always final and non-appealable
since the parties worked it out. A consent decree is a common practice when the government has sued to make a person
or corporation comply with the law (improper securities practices, pollution, restraints of trade, conspiracy) or the
defendant agrees to the consent decree (often not to repeat the offense) in return for the government not pursuing
criminal penalties. In general a consent decree and a consent judgment are the same. (See: consent judgment)
Copyright 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

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consent decree noun an order accepted by the parries, an order acquiesced by the parties, an order agreed to by the
parties, an order approved by the parties, an order consented to by the parties, an order endorsed by the parries, an order
supported by the parties, an order with the accord of the parties, consent order
Associated concepts: consent rule

Continuing Mandamus
From Wikipedia, the free encyclopedia

Continuing Mandamus is a writ of Mandamus issued to a lower authority by the higher authority in general public
interest asking the officer or the authority to perform its task expeditiously for an unstipulated period of time for preventing
miscarriage of justice.
The concept of Continuing Mandamus has been discussed and dealt with in the respective cases of Vineet Narain v. Union of
India[1] and Bandhua Mukti Morcha v. Union of India & Ors.[2]
When a petition is filed under Article 32 or Article 226 of the Constitution of India in the Supreme Court or the High Court
respectively, the court can issue the writ of Mandamus in the interest of general public welfare. The facts and circumstances of
the cases were of utmost public importance, and the increasing need for preservation of democracy and equality in this society.
The investigation into every accusation made against each person on a reasonable basis, irrespective of the position and status
of that person, must be conducted and completed expeditiously. This is imperative to retain public confidence in the impartial
working of the Government agencies.
The Courts, in these cases did not concern themselves with the accusations on a meritorious basis, but only by the due
performance of the duties and obligations on the part of the government agencies to fairly, fully and properly investigate into
every such accusation against every person, and to take the logical final action in accordance with the law.
If the charge sheet is filed against the relevant person in the competent court, the court shall deal with the case in accordance
with the laws. In case, a prima facie case cannot be made out against an individual, it should be closed and quickly submitted to
the court for its satisfaction that the concerned authorities have not come to a conclusion.
The court ruled that as great public interest was involved in this matter, the CBI and other revenue agencies of the government
should perform their tasks properly and expeditiously to prevent unnecessary delays in investigation. The writ issued by the
court was continuous, and for an unstipulated period of time. The National agencies and authorities would be obliged to perform
their tasks diligently and dutifully, taking into consideration, national and public interest.
A special reference as to the initiation of Inquisitorial proceedings was also made by the Supreme Court, to facilitate this
epistolary proceedings (suo moto cognizance), a Public interest litigationcell has been opened in the Supreme Court to which
letters addressed to the Court or individual judges are forwarded which are placed before the Chief Justice after scrutiny by the
staff attached to the cell. This implies that the court is not bound by the Civil Procedure Code and the Evidence Act and can
devise inquisitorial or other suitable procedure to achieve the object and purpose of Article 32 of the Constitution of India.

A Writ of Kalikasan is a legal remedy under Philippine law which provides for the protection one's right to "a balanced
and healthful ecology in accord with the rhythm and harmony of nature," as provided for in Section 16, Article II of
the Philippine Constitution. It is compared with the writ of amparo but protects one's right for a healthy environment rather
than constitutional rights.[1]
Provision for the Writ of Kaliksaan was made in 2010 by the Supreme Court of the Philippines under Rule 7 of the Rules
of Procedure for Environmental Cases as a Special Civil Action. [2] The Supreme Court under Chief Justice Reynato

Puno took the initiative and issued Rules of Procedure for Environmental Case because Section 16, Article II of the
Philippines' 1986 Constitution was not a self-executing provision. [3]

1. REPUBLIC ACT NO. 9003 Overview of Ecological Solid Waste Management Act
of 2000

2. Solid Waste discarded household and commercial waste non-hazardous

institutional and industrial waste street sweepings construction debris agricultural

3. Classification of Waste as defined by RA 9003 Compostables Recyclables

Special Wastes Non-recyclables/residuals

4. Solid waste is now considered one of the most critical problems of the

5. The Ecological Solid Waste Management Act RA 9003 An Act providing for an
ecological solid waste management program, creating the necessary institutional
mechanisms, declaring certain prohibited acts. Was passed by the Congress and
Senate on December 2000 and signed by the President on January 26, 2001.

6. Salient Features of RA 9003 Creation of the National Solid Waste Management

Commission, National Ecological Center and LGU Solid Waste Management
Boards Creation of multi-purpose Environmental Cooperatives or Associations in
every LGU Waste segregation, waste reduction and recycling programs

7. Salient Features of RA 9003 Construction of Material Recovery

Facilities/Systems Conversion of open dumpsites to sanitary landfills Integration of
Ecological Waste Management concepts in academic curricula for formal and nonformal education Administrative and enforcement procedures

8. Institutional Structure Ecological Solid Waste Management Act Local

Government Units National Solid Waste Management Commission Waste
Generators/ Citizens

9. INSTITUTIONAL MECHANISM (National Level) The National Solid Waste

Management Commission Created under the Office of the President EMB of the
DENR provides secretariat support Secretariat to be headed by an Executive
Director to be nominated by the Commission and appointed by the Chairman
Composed of 14 members from the government and 3 from the private sector

10. INSTITUTIONAL MECHANISM (National Level) Government Sector: DENR

(Chairman) PIA DILG MMDA DOST TESDA DPWH League of Provinces DOH
League of Cities DTI League of Municipalities DA Liga ng mga Barangay NonGovernment Sector: 1 representative from the NGO 1 representative from the
recycling industry 1 representative from the manufacturing/ packaging industry

Private sector representatives shall be appointed by the President for a term of 3


11. Role of the DENR as the Lead Agency provide technical and other capability
building assistance and support to LGUs recommend policies to eliminate barriers
to waste reduction programs exercise visitorial and enforcement powers to ensure
strict compliance issue rules and regulations

12. National Ecology Center Facilitate training & education in integrated ecological
solid waste management; Establish solid waste management information database;
Establish a national recycling network; Provide technical assistance in pilot
modeling of solid waste management facilities.

13. Solid Waste Management Boards at the Local Government Level Consolidate
Plans and Programs,establishing activities and complementing efforts at the local
and barangay levels Collection of non-recyclable materials and special wastes shall
be the responsibility of the municipality or city Provincial SWM Board City/Municipal
SWM Board Barangay SWM Committee Segregation and collection of
biodegradable, compostable, & reusable solid wastes shall be conducted at the
barangay level

14. Functional Elements/Mechanics of Solid Waste Management Waste Generation

On-site Storage Transfer & Transport Collection Processing/ Treatment Disposal

15. Ecological Solid Waste Management Systematic administration of activities that

provide for segregation at source, segregated transport, storage, transfer,
processing, treatment and disposal of solid waste and all other waste management
activities that do not harm the environment.

16. Approach to Ecological Solid Waste Management Source reduction &

minimization of wastes Resource recovery, recycling & reuse at the
community/barangay level Collection, proper transfer & transport of wastes by
city/municipality Management/ destruction or reuse of residuals / final disposal

17. Requirements for Segregation & Volume Reduction Separate containers for
compostables, recyclables, special wastes and residuals Separate collection
schedules / separate trucks or haulers / compartmentalized collection vehicles
Material Recovery Facilities for recyclables & biodegradables Inventory of markets
for composts and recyclables

18. Recycling Program Environmentally preferable purchase Specifications,

product descriptions and standards Eco-labeling Non-environmentally acceptable
products Reclamation programs and buy-back centers

19. Management of Residuals & Final Disposal Sites Closure of all open dumpsites
Conversion of all open dumpsites to controlled dumps within 3 years Minimum
requirements in siting, designing and operation of disposal sites Sanitary landfills

20. Business and Industry Role The Commission shall encourage commercial and
industrial establishments, through appropriate incentives other than tax incentives
to: initiate, participate and invest in integrated EWM Projects manufacture
environment-friendly products introduce, develop and adopt innovative processes
recycle and re-use materials conserve raw materials and energy reduce waste
prevent pollution undertake community activities to promote and propagate
effective SWM practices

21. Prohibited Acts P 300 P1,000 Or Imprisonment of 1 15 days Open burning

of solid waste P 300 P1,000 Or Community service between 1 15 days
Littering, throwing and dumping of waste matters in public places and water bodies
Fines/Penalties Violation

22. Prohibited Acts P 1,000 P 3,000 Or Imprisonment of 15 days to 6 months

Collection and transport of non-segregated or unsorted waste Squatting in open
dumpsite and landfills Open dumping, burying of biodegradable & nonbiodegradable materials in flood prone areas Unauthorized removal of recyclable
materials for collection by authorized persons Fines/Penalties Violation

23. Prohibited Acts P500,000.00 Or Imprisonment of 1 to 3 years Operation of

open dumpsites Manufacture, distribution or use of non-environmentally acceptable
packaging materials Importation of consumer products packaged in nonenvironmentally acceptable materials Fines/Penalties Violation

24. Prohibited Acts P 10,000 P 200,000 Or Imprisonment of 30 days to 3 years

Importation of toxic wastes misrepresented as recyclable or with recyclable
content Transport and dumping in bulk of collected domestic, industrial,
commercial and institutional wastes in areas other than centers or facilities
prescribed by law Fines/Penalties Violation

25. Prohibited Acts P100,000 P 1M Or Imprisonment of 1 to 6 years Construction,

expansion or operation of waste management facilities without an Environmental
Compliance Certificate Construction of any establishment within 200 meters from
open or controlled dump sites and sanitary landfills Construction or operation of
landfills or any waste disposal facility within or near an aquifer, groundwater
reservoir or watershed Fines/Penalties Violation

26. Conceptual Framework of RA 9003 Residuals Management Compostables

Recyclables Non-recyclables Special Wastes Junkyards/Factories Gardens/ Farms
MRF Municipality/ City level Collection by municipality/city level Barangay Level

27. THANK YOU! Department of Environment & Natural Resources Environmental

Management Bureau NCR 5 th Flr. Hizon Bldg., 27-29 Quezon Ave., Quezon City
Telefax: 781-0471 Website:


Republic Act 9147
(source: KONGGRESO NG BAYAN, January 2002 Issue)

Approved by President Gloria Macapagal-Arroyo

was an important legislative measure geared
towards ensuring environmental sustainability.
Originating in the House of Representatives as HB
10622, filed by Rep. J.R. Nereus O. Acosta, the
Wildlife Resources Conservation and Protection Act
(RA 9147) aims to protect our countrys fauna
from illicit trade, abuse and destruction, through
(1) conserving and protecting wildlife species and
their habitats, (2) regulating the collection and
trade of wildlife, (3) pursuing, with due regard to
the national interest, the Philippine commitment to
international conventions, protection of wildlife and
their habitats, and (4) initiating or supporting
scientific studies on the conservation of biological
The provisions of this Act shall be enforceable for
all wildlife species found in all areas of the country,
including critical habitats and protected areas
under the National Integrated Protected Areas
System (NIPAS) Act. Exotic species, or species
which do not naturally occur in the country, are
also covered by this Act. All designated critical
habitats shall be protected, in coordination with
the local government units and other concerned
groups, from any form of exploitation or
destruction which may be detrimental to the
survival of species dependent upon these areas.
The introduction, reintroduction or re-stocking of
endemic and indigenous wildlife shall be allowed
only for population enhancement or recovery. Any
introduction shall be subject to a scientific study.
The Act also prohibits the introduction of exotic
species into protected areas and critical habitats. If
and when introduction is allowed, it shall be
subjected to environmental impact assessment
and the informed consent from local stakeholders.
Conservation breeding or propagation of
threatened species shall be encouraged to enhance
its population in its natural habitat. Breeding shall
be done simultaneously with the rehabilitation and
protection of the habitat where the captive-bred or
propagated species shall be released or
reintroduced. When economically important
species become threatened, collection shall be
limited to scientific, educational or breeding
The Act makes it unlawful for any person to
undertake the following:
killing and destroying wildlife species, except when
it is done as part of the religious rituals of
established tribal groups or indigenous cultural
communities, when the wildlife is afflicted with an
incurable communicable disease, when it is
deemed necessary to put an end to the misery
suffered by the wildlife, or when it is done to

prevent an imminent danger to the life or limb of a

human being; when the wildlife is killed or
destroyed after it has been used in authorized
research or experiments
inflicting injury which cripples and/or impairs the
reproductive system of wildlife species
effecting any of the following acts in critical
habitats: dumping of waste products detrimental
to wildlife; squatting or otherwise occupying any
portion of the critical habitat; mineral exploration
and/or extraction; burning; logging; and quarrying
introduction, reintroduction, or restocking of
wildlife resources
trading of wildlife
collecting, hunting or possessing wildlife, their byproducts and derivatives
gathering or destroying of active nests, nest trees,
host plants and the like
maltreating and/or inflicting other injuries not
covered by the preceding paragraph; and
transporting of wildlife.
For any person who undertakes these illegal acts,
stiff penalties and fines are meted out.
Imprisonment of as much as 12 years and a fine of
P1 million pesos shall be imposed, if inflicted or
undertaken against species listed as critical.
A Wildlife Management Fund to be derived from
fines imposed and damages awarded, fees,
charges, donations, endowments, administrative
fees or grants, shall be administered by the
Department of Environment and Natural Resources
as a special account in the National Treasury. It will
be used primarily to finance rehabilitation or
restoration of habitats due to violations of this Act.
The Fund will also support scientific research,
enforcement and monitoring activities, as well as
enhancement of capabilities of relevant agencies.
With the approval of The Wildlife Resources
Conservation and Protection Act, Congress
continues its commitment to protect the
environment to ensure an economically and
ecologically sustainable future, following the
constitutional mandate of the State to protect and
advance the right of its people to a balanced and
healthful ecology in accord with rhythm and
harmony of nature.

Download or print a copy of Republic Act 9147 in

(source: Malacaang Records Office)