Saving Fish to Save the Bay: Public Trust Doctrine Protection for Menhaden's Foundational Ecosystem Services in the Chesapeake Bay

Abstract

The Chesapeake Bay menhaden population provides a number of ecosystem services that help keep the bay’s waters suitable for marine life, and enjoyable and profitable for the bay’s human users. Overfishing of menhaden within the bay may, however, be eroding the ability of the species to provide these services, which are foundational to rights traditionally secured by the public trust doctrine: fishery, commerce, and navigation. The Virginia courts’ failure to protect these foundational ecosystem services threatens the viability and sustainability of these public trust rights. Given the chance, Virginia courts should protect menhaden by expanding the state’s narrow conception of the public trust doctrine to comport with developments in ecology and state constitutional, statutory, and case law.