Expanding the scope means including something that was excluded before---it’s distinct from reinvigorating

In this Essay I propose reinvigorating and expanding the public trust doctrine so that its protection is extended to wildlife, and by necessity, to the habitat it depends upon. 4 [FOOTNOTE 4 BEGINS] I use the term "expand" because the public trust doctrine, as currently used by most states, does not protect wildlife or wildlife habitat per se, but is instead restricted to water-based protections. I use the term "reinvigorate" because it is equally clear that the public trust doctrine in its original form contemplated the protection of wildlife within its scope. See infra text accompanying notes 18-20. As the first United States court to discuss the doctrine noted, in rejecting a riparian landowner's claim to exclusive rights in tidal oyster beds, the courts have been historically aware of a legal distinction between private, public, and common property. Common property (property encumbered with a public trust), said Chief Justice Kirkpatrick of the New Jersey Supreme Court, includes "the air, the running water, the sea, the fish, and the wild beasts. [These are] things in which a sort of transient usufructuary possession only, can be had. . . ." Arnold v. Mundy, 6 N.J.L. 1, 71 (1821) (citations omitted). [FOOTNOTE 4 ENDS] In my assessment, [*725] the public trust doctrine offers a framework for resource management and decision making that is ecosystemic. By ecosystemic, I mean an approach that allows resource managers to consider both the short-term and long-term needs of wildlife, the health of the habitat upon which a specific species or variety of species depend for survival, and the needs and goals of those humans 5 who interact with wildlife in the ecosystem. And critically, I suggest that the public trust doctrine offers both a historically and jurisprudentially sound approach for achieving this objective.