Introduction
If you
have the opportunity to do so, I would encourage you to take the online tutorial
on the public trust doctrine provided by NOAA at its "Costal
Service Center" website. This is an excellent introduction to the
concept and its practical application. According to NOAA,
"The
Public Trust Doctrine is a common-law doctrine of property law, customized by
each state, which establishes public rights in navigable waters and on their
shores. The doctrine is premised on the fact that such waters and shores have
been used as common areas for food, travel, and commerce since time
immemorial. In some states, public rights may also be exercised on private
lands. The legal interest of the public is determined by balancing public and
private rights and interests."
According
to law professor Allan
Kanner of Duke University,
"The public trust doctrine
refers to the duty of sovereign states to hold and preserve certain
resources including wildlife, for the benefit of its citizens. Described
simply, the doctrine provides that natural resources belong to the whole
public; private owners may not deprive the public of access. the state
has legal authority to pursue causes of action for damages and
injunctive relief against parties responsible for the pollution of
natural resources. If properly used, especially by the state AG,
complete relief for the state citizenry is often possible. The state's
right to this relief is rooted in the common law's public trust
doctrine, which provides that public lands, waters and other resources
are held in trust by the government for the benefit of its
citizens."
Historically, the purpose of
the public trust doctrine was to protect water resources for navigation
and to commence when waterways were the principal means of
transportation and a source of food. Thus, the doctrine originally
evolved to allow recovery by the state in cases involving discharges
into navigable waterways and tidelands.
History
The theory of the public
trust is an ancient legal doctrine. It evolved from the Roman law into
English common law, and was passed on to the American colonies. From
there, the doctrine has evolved through a series of court decisions. In
the early United States, it protected beaches and navigable waterways so
that commerce could proceed unimpeded. In the last fifty years, however,
both the scope and the purpose of the public trust doctrine have
changed.
1. Roman Law
The ideal of the public
trust dates back to early Roman law or even earlier. The public's
interest in and right to certain communitarian goods and benefits were
unquestioned. As stated by Justinian:
"[T]he following things
are by natural law common to all -- the air, running water, the sea,
and consequently the sea-shore. No one there is forbidden access to
the sea-shore ... for these are not, like the sea itself, subject to
the law of nations ... Again, the public use of the banks of a
river, as of the river itself, is part of the law of nations;
consequently every one is entitled to bring his vessel to the bank,
and fasten cables to the trees growing there and use it as a
resting-place for the cargo, as freely as he may navigate the river
itself ... But they cannot be said to belong to any one as private
property, but rather are subject to the same laws as the sea itself,
with the soil or sand which lies beneath it."
Stated in other words,
private property rights do not necessarily encompass the entire material
world and much of the non-private world is a valuable adjunct to the
world of private property. In addition to public goods, the Romans also
recognized the ancient right of the sovereign to take private property
for public use, or eminent domain. The Romans also provided for land use
controls, such as housing and construction restrictions. Later, as more
modern notions of property emerged, these goods and advantages became
the property of the state held for the benefit of all. Finally, the
rights-based notion grew to encompass various public responsibilities.
2. Early English Law
In the eleventh and twelfth
centuries, English villages were largely feudal and had "common land for
grazing livestock. The modern day conception of the common as a public
right does not accurately describe the medieval commons in the medieval
commons system, either by a common law
right as a freehold tenant or through usage and grants, a villager was
entitled to pasture limited numbers of specific animals on the land not
otherwise used by the feudal lord. The villager also had the right to cut wood,
to fish, and to cut peat or turf for fuel. Even from the beginning, the use of
the commons was regulated: The villages determined the type and number of
animals permitted in the commons, the time of year they could be loose, how
long they might graze, and when they must be removed. In addition, the English
allowed the king too declare lands to be "royal forests," so that they
could be managed to conserve various type of game. The "forest" was a
land use classification rather than a vegetation description; it
contained the mix of habitats that "forest" animals required. Forest law
protected both particular places, by prohibiting habitat-altering
activities, and the game species that lived there, by prohibiting
hunting -- in the language of the time, forest law protected "the vert
and Venison" (the vegetation and the game:
"[B]y
the Lawes of the Forest, no man may cut downe his woods, nor destroy any
coverts, within the forest, without the . . . license of the Lord chief Justice
in Eyre of the Forest, although that the soile, wherein those woods do grow, bee
a mans owne freehold. [Similarly], "Hawking
and Hunting in forests are pastimes of delights and pleasure, ordayned and
appointed chiefly for the recreation of Kings and Princes, and therefore they
are not be used in Forests by everie common person, but onely by such, as are
Earles, Barons, and Noble men of the Realme, being thereunto licensed or
authorised by the King."
Forest
law thus was a pervasive body of law that conserved limited game species.
Legal
restrictions were not, however, limited solely to places suitable as wildlife
habitats. The English government imposed a wide variety of hunting and habitat
altering restrictions to conserve wildlife. In 1285, for example, Parliament
enacted the Statute of Westminster II which set closed seasons on the taking
of salmon. A statute enacted in 1393 strengthened these restrictions and
also restricted habitat alteration by mandating that all dams
include weirs "of reasonable wideness" to permit the fist to reach
upstream spawning areas. Similarly, a 1682 statute for "better
preserving the red and black game of grouse" prohibited the burning of "grig,
ling, heath, furze, goss, or fern" from February through June. Lawmakers
also relied upon bag limits, gear restrictions, and prohibitions on
commerce to conserve and to allocate wildlife.
Although
the commons system lasted for centuries, abuses of the system by the wealthier
landlords were frequent. The unfortunate poor tenant was denied his remedy at
law for the illegal abuses of the more powerful landowners. This ultimately
led to the enclosure of most of the common land by the mid-nineteenth century.
"After centuries of lapse, the doctrine that certain lands always belong
to the sovereign was revived in England during the early seventeenth
century to augment the declining fortunes of the Crown." In many of the
debates over the extent of royal power, the public trust was raised as
an issue.
The American Experience
When
colonists arrived in America, they brought the doctrine from England,
"although they changed its beneficiary from the monarchy to the public as
a whole." As with many of the common law doctrines taken from England and
modified to fit New World needs, the public trust doctrine was unclear and its
application varied. Indeed,
the scope of the public trust doctrine is subject to considerable debate. Many
scholars acknowledge the public trust doctrine but maintain that the reach of
the doctrine should be fixed. They argue that sudden shifts in the doctrine's
application cannot inhere in a title because abrupt changes in the doctrine
cannot be consistent with settled rules of state law. Critics of an evolving
public trust doctrine are correct that sudden shifts in a doctrine argue
against its characterization as a background principle. But it is inconsistent
to recognize the public trust doctrine as a background principle on one hand
and then limit its application to a "traditional scope" on the
other. Controlled evolution is inherent in the very definition of the public
trust doctrine; the fundamental purpose of the doctrine is to meet the
public's changing circumstances and needs. Just as what constitutes nuisance
has changed over time, so too has the public trust doctrine slowly been
"molded and extended" to satisfy the needs "of the public it
was created to benefit." Careful, predictable expansions of the doctrine,
therefore, are not novel legislative decrees, but constitute a firmly embedded
exercise of state duty.
Beginning with Massachusetts
Bay in 1684, the colonies adopted restrictions on killing or capturing
wildlife. By the American Revolution, every colony except Georgia had
established limitations on killing deer. As the population increased, so
did legislative output; gear restrictions, bag limits, and licensing
requirements soon followed.
Legislatures also routinely
restricted land use to conserve wildlife habitats. The most common
examples were statutes requiring mill owners to install fishways in
their milldams. For example, when Essex Company was incorporated by the
Massachusetts legislature in 1845, it was required to provide fish
passage in the dam it sought to construct on the Merrimack River.
After the American
revolution, the rights of the sovereign passed to the governments of the
individual colonies, not the central federal government. Originally
emphasizing water-related resources, the public trust doctrine has
expanded to include nearly all natural resources. Traditionally, the
states managed fish and wildlife as heirs of the king's common law
powers by conveyance through the colonial governments. This idea, known
as the state ownership doctrine, can be traced to that amalgam of common
and international law that informed the early legal developments in this
country.
In Arnold v. Mundy,
the court found that the State of New Jersey held the land beneath
navigable waters in trust for its citizens because the king had done the
same. Relying upon Blackstone's Commentaries and Vattel's The
Law of Nations, the court concluded that this meant that the
oysters growing on those lands were also owned by the state in trust. In
a subsequent decision, the federal circuit, again relying upon
Blackstone and Vatell, held that state ownership-in-trust meant that
oysters were not items of commerce and hence, a New Jersey statute
prohibiting nonresidents from harvesting oysers did not violate either
the Commerce Clause or the Privileges and Immunities Clause.
Meanwhile, the law regarding
conflicts over land use was evolving. Such conflicts were at first easy
to resolve. Usually, the common law remedy of nuisance was sufficient to
settle private disputes. Initially the strength of the concept of
property rights, and the Lockean notion that if a person had paid for
something, it was his to do with as he wished, overrode any suspicion
that the public might be better served if certain activities were
prohibited or restricted. However, as American cities grew, public
controls became necessary. Cities used their police power to
enact ordinances restricting certain activities, such as tanneries,
candle makers, or slaughterhouses with their attendant odors and refuse,
to particular parts of town. Common law remedies to redress land use
abuses continue to evolve.
The public trust doctrine
was static throughout the nineteenth century. The shorelines and land
underlying navigable rivers continued to be held in the public trust.
This limited the action of private property owners on these lands to
those not interfering with the public trust. The nineteenth century
public trust was one of negative rights, preventing harm but imposing no
affirmative duties on the landowner or state.
Just
before the turn of the century, Illinois Central Railroad Co. v. Illinois
changed the nature of the public trust by establishing affirmative duties of
the states with respect to the public trust. In 1869, the State of Illinois
granted some submerged Chicago shorefront lands Michigan to the Illinois
Central Railroad Company. Four years later, regretting its gift, the
state repealed the grant. The state then filed suit to quiet the title
so that the chain of ownership would be clearly recorded.
Understandably, the railroad
company objected. The state retaking title to land that was privately
owned seemed to raise the constitutional question of a violation of due
process. However, the United States Supreme Court cleverly avoided the
constitutional question by finding the original grant of land to be
invalid because it violated public trust obligations to Illinois. This
case established the central tenet in public trust litigation: that
property held in trust for public use must not be constrained.
The
Supreme Court held that submerged lands under Lake Michigan were owned by the
State of Illinois and held in trust for the people of the state for their
common use and enjoyment and could not be transferred. The Supreme Court
stated that the land was:
[d]ifferent
in character from that which the state holds in lands intended for sale . . .
. It is a title held in trust for the people of the State, that they may enjoy
the navigation of the waters, carry on commerce over them, and have liberty of
fishing therein freed from the obstruction or interference of private parties.
In
effect, the Supreme Court held that the state could not revoke the grant of
submerged land because the company never really had title to them in fee
simple; its title was always limited by the public trust. In other cases in
which states have conveyed trust lands to private owners, the courts reasoned
that the public trust property interests consist of two bundles of rights, the
jus privatum (private right) and the jus publicum (public
right). These cases concluded that the state could transfer the private right
only in strict subordination to the public trust easement created by the
public right. Overall, the effect of Illinois Central has been
profound. The case has been relied upon hundreds of times by state courts
applying the public trust doctrine to public resources, including wildlife.
Some states have adopted the doctrine legislatively or constitutionally.
Until
Professor Joseph L. Sax published his groundbreaking article on the public
trust, the concept of Illinois Central lay dormant, confined to
waterways. Professor Sax argued that the principle of public trust extends far
beyond the traditional realms of waterways and parklands. He claimed that
"[p]ublic trust problems are found whenever government regulation comes
into question, and they occur in a wide range of situations in which diffuse
public interests need protection against tightly organized groups with clear
and immediate goals." Therefore, the government has an additional
affirmative duty to protect the public resources that are part of the public
trust. Since the article was written, United States judges have broadened the
geographic protections and widened the range of activities under the public
trust.
In
Geer v. Connecticut, the United States Supreme Court applied the public
trust doctrine to the taking of wildlife. The issue in Geer was whether
the State of Connecticut, consistent with the Commerce Clause, could forbid
interstate transportation of game within its borders. In affirming that power,
the Supreme Court observed that, at common law, wildlife, having no owner, is
considered to belong in common to all citizens of a state. This principle of
governmental control of wildlife was carried over into American society upon
colonization. The Geer Court further reasoned:
Whilst
the fundamental principles upon which the common property in game rests have
undergone no change, the development of free institutions had led to the
recognition of the fact that the power or control lodged in the State,
resulting from this common ownership, is to be exercised, like all other
powers of government, as a trust for the benefit of the people, and not as a
prerogative for the advantage of the government as distinct from the people,
or for the benefit of private individuals as distinguished from the public
good.
This
state power was, the Supreme Court reasoned, an equitable property held
"in trust for all the people of the State." Proponents of
"states' rights" seized upon the opinion's broad language and its
conflation of state regulatory power with concepts of property, claiming that
states owned the wildlife within their borders. Under the then prevalent
constitutional theory, state and federal governments occupied mutually
exclusive spheres. If states owned the wildlife within their borders, the
federal government had only a very limited role in the conservation of that
wildlife.
The
Geer holding remained law for nearly a century, until the Supreme Court
reconsidered Geer's constitutional interpretation in Hughes v.
Oklahoma. While overruling Geer as to the constitutionality of
state prohibitions against interstate shipping, Hughes preserved the
trust responsibility set forth in Geer. With respect to the continued
viability of the state ownership theory, the Hughes court stated that
"[t]he whole ownership theory, in fact is . . . but a fiction expressive
in legal shorthand of the importance to its people that a State have power to
preserve and regulate the exploitation of an important resource." After
Hughes,
the trust responsibility that accompanied state ownership remained.
The
doctrine was later extended beyond navigable waterways by statute and by the
courts to cover other public lands. This created more affirmative
environmental duties relative to other natural resources. Several courts have
taken the small step of using the doctrine to protect fish and waterfowl in
trust waters. In one case, an oil spill killed a number of birds on the
Potomac River. When the federal
government and State of Virginia sued the polluter, the defendant moved for
summary judgment on the basis that neither government owned the birds
in question. However, the court found that the public trust doctrine
nevertheless gave them a duty to protect the public's interest in the nation's
wildlife resources. Other courts have gone further and protected inland wild
animals, non-submerged public land, and subsurface waters. Over the last
twenty years, courts have held that the public has an easement that protects
other interests in trust resources, including wildlife habitat, water
conservation, and public access.
The
scope of protected natural resources today is generally broad. Particular
resources, such as rivers, the sea, and the seashore are especially important
to the community's well being and are retained for public use. Many bodies of
water are thus deemed quasi-public property, giving the sovereign special
prerogatives at the expense of private parties. Under the public trust
doctrine, the public retains an easement to use trust resources for certain
public purposes.
The
state's role as sovereign over trust lands imposes certain environmental
duties that it owes to the public and are thus enforceable by the public.
Under the public trust doctrine, the state "may not destroy or relinquish
its control over public resources except under certain, very narrow
circumstances." Although states have broad discretion implementing
fiduciary obligations imposed by the public trust, states are not free to
alienate or extinguish the trust.
The
public trust imposes upon the government an "affirmative obligation"
to protect resources. At the most basic level, "the public trust doctrine
holds that government must act as a fiduciary in its management of the
resources which constitute the corpus of the trust." Public trust
resources:
"are
protected by the trust against unfair dealing and dissipation, which is
classical trust language suggesting the necessity for procedural correctness
and substantive care. . . . The public trust doctrine demands fair procedures,
decisions that are justified, and results that are consistent with protection
and perpetuation of the resource."
At
least one state court has found that the public trust in natural resources is
an active trust. This means that the government is required to affirmatively
protect and preserve the trusts. In 1927, the Wisconsin Supreme Court ruled
that:
"The
trust reposed in the state is not a passive trust; it is governmental, active,
and administrative. . . . [T]he trust, being both active and administrative,
requires the lawmaking body to act in all cases where action is necessary, not
only to preserve the trust, but to promote it. . . . A failure so to act, in
our opinion, would have amounted to gross negligence and a misconception of
its proper duties and obligations in the premises."
Under
the public trust doctrine, the state as trustee of natural resources arguably
is endowed with duties akin to an ordinary trustee. "In theory, a private
trust protects a corpus intended for the benefit of an individual or group
from . . . shortsighted and biased control of one or more beneficiaries."
Under traditional trust principles, the heart of a trust is the discretionary
duties imposed upon the trustee; delegation of these discretionary duties to
the beneficiaries would defeat the purposes of the trust and render it a
nullity. According to the Restatement, the "duty of the trustee is not
only to take and keep control of the trust assets, but to take and keep
exclusive control." "The trustee . . . has exclusive control of the
trust property, subject only to limitations imposed by law or the trust
instrument."
The
state cannot abdicate its duty to preserve and protect the public's interests
in wildlife resources. This duty is vested exclusively in the state. The state
must consider diffuse and competing common needs when making decisions
relating to the protection of wildlife, such as the decision to allow or
prohibit hunting and trapping.
In
his widely cited 1970 law review article, Professor Joseph Sax developed the
modern theory of the public trust doctrine as a tool to protect the public
interest from the "insufficiencies of the democratic process." Sax
states that, "When
a state holds a resource which is available for the free use of the general
public, a court will look with considerable skepticism upon any
governmental conduct which is calculated either to reallocate that resource to
more restricted uses or to subject public uses to the self-interest of
private parties. Based on this premise, it follows, inter alia
"the state, as trustee, must prevent substantial impairment of the
wildlife resource so as to preserve it for the beneficiaries -- current
and future generations."
Under the public trust doctrine, the state must: (1) consider the
potential adverse impacts of any proposed activity over which it has
administrative authority; (2) allow only activities that do not substantially
impair the state's wildlife resources; (3) continually monitor the impacts of
an approved activity on the wildlife to ensure preservation of the corpus of
the trust; and (4) bring suit under the parens patriae doctrine to enjoin
harmful activities and/or to recover for damages to wildlife.
States can generally define the extent of the public trust doctrine as it is
applied in their state. For example, California v. United States held
that a state has the right to define the nature and extent of its property
under the common law relating to water interests. As a result of this freedom
to define the extent of the doctrine, states understandably vary in their
approaches to the public trust doctrine. Some have an expansive view while
other states have a restrictive view.
a.
The Expansive View
New Jersey is one
example of a state that has taken an expansive view of the public
trust. Hudson City Water Co. v. McCarter forbade a private
diversion of water from a stream by a company contracted to sell
water to New York City without the consent of the State of New
Jersey. The Supreme Court, in Hudson stated:
"We are of the
opinion, further, that the constitutional power of the state to
insist that its natural advantages shall remain unimpaired by
its citizens is not dependent upon any nice estimate of the
extent of present use or speculation as to future needs ... and
there are benefits from a great river that might escape a
lawyer's view. But the state is not required to submit even to
an aesthetic analysis. Any analysis may be inadequate. It finds
itself in possession of what all admit to be a great public
good, and what it has it may keep and give no one a reason for
its will."
Instead of simply cataloging the
things and activities that are protected by the public trust, New Jersey has
conceptualized the trust differently. The Supreme Court of New Jersey views
the public trust as a flexible concept, changing with the needs of the
population. In Borough of Neptune City v. Borough of Avon-By-The-Sea,
the court held that the public trust doctrine forbids municipalities from
discriminating between residents and nonresidents when charging user fees for
the beach -- access must be provided equally to all. Using this kind of
reasoning, a court is free to go beyond fishing and navigation activities to
find a broader recreational interest in the public trust. Traditionally
protecting the wet sand of a beach, the public trust doctrine has been
extended to dry sand.
California has taken a similar
approach. The California Supreme Court has extended the public trust inland
from the shore in a series of cases. From its original definition in terms of
commerce, navigation, and fishing, the court broadened the doctrine. First,
two cases established the primacy of the public trust in tidelands, even in
circumstances where those lands were legally sold to private owners under
state authorization. Second, the next expansion of the public trust doctrine
in California occurred in a pair of cases in which the California Supreme
Court held that the shores of both Clear Lake and Lake Tahoe were part of the
public trust. Consequently, by extension, all inland lakes were included in
the public trust.
The most recent extension of the
public trust came at the government's expense. In National Audubon Society
v. Superior Court , the court was faced with Los Angeles County's intake
of vast amounts of water from Mono Lake, dangerously depleting it. The court
held that all tributaries are part of the public trust on the ground that,
because the public trust already protects navigable waterways, it makes sense
to protect the waterways from upstream degradation as well. If tributaries are
part of the public trust because of their impact on navigable waterways, there
is no scientific barrier preventing a declaration that the entire watershed is
part of the public trust. The tributaries themselves are formed by water
flowing over the land into small streams. Eventually the California public
trust doctrine has the potential to break free from its water-based origins to
apply to all natural resources, as foreseen by Professor Sax.
Many states, including those that
have recently examined the issue, have significantly broadened the trust to
include a wide range of activities. In some states, the trust has been
extended to include wildlife and parklands. Several states have found that the
public trust includes a right to recreation. For example, the public trust in
Wisconsin includes the right to sail, swim, hunt, and enjoy scenic beauty. In
a more recent case, Washington courts affirmed expansive access rights in the
Washington public trust, but acknowledged that the court must balance the
benefits of allowing access with protection of the environment. In that case,
the court held that the public trust rights of access do not include the right
to use jet -- skis that are harmful to water and wildlife.
Some states have even adopted
legislation or constitutional amendments declaring that all publicly held
natural resources are subject to the public trust. These few codifications of
the public trust notwithstanding, it primarily remains a common law doctrine
applicable to all land, not just land owned by the state, and will likely
continue to develop on a case-by-case basis in each state.
One important effect of constitutionalization is that it gives credence to the
notion that the public trust doctrine is constantly evolving. This makes it
even harder to argue that the resource in question is not part of the public
trust simply because it has not been historically covered by the doctrine.
The nature of a constitution is to
expand to account for social changes -- to respond to new problems in society.
As Chief Justice Marshall observed,
"[i]n considering this question,
then, we must never forget, that it is a Constitution we are
expounding." Marshall further observed, "[l]et the end be
legitimate, let it be within the scope of the constitution, and all means
which are appropriate, which are plainly adapted to that end, which are not
prohibited, but consist with the letter and spirit of the constitution, are
constitutional." Woodrow Wilson wrote, "the Constitution . . . is
not a mere lawyers' document: it is a vehicle for life, and its spirit is
always the spirit of the age."
Justice Blackmun summarized the modern
adherence to this notion, writing that,
"[t]hese precepts of breadth and
flexibility and ever-present modernity are basic to our constitutional
law."
Today, again, we are expounding a Constitution. The same
principles that governed McCulloch's case in 1819 govern modern cases.
There can be no other answer. By attaching the public trust doctrine to state
constitutions with "breadth and flexibility," the public trust
doctrine is greatly expanded.
Non-Navigable
Freshwaters
In
1983, the California Supreme Court (in National Audubon Society v.
Superior Court of Alpine County) held that the state may regulate the
use of non-navigable freshwaters when Public Trust resources may be
affected.
Above
the Intertidal Zone
New
Jersey courts have held that there is a limited right to use the dry sand
area of beaches—the area above the recognized boundary of the Public Trust
Doctrine, which is the mean high tide line. In Mathews v. Bayhead
Improvement Association (1984), the court was careful to note that
public use of areas above the mean high tide was based on a circumstantial
need and not an unrestricted right to cross over any and all property
bordering on the common property.
Other
Common Law Doctrines
Cases
such as Matthews v. Bayhead are a rarity because in most states the
Public Trust Doctrine does not permit the public to cross over private
property to reach the shore. The common law, however, may provide the public
with a means to continue or reestablish public access to the shore. Related
to the Public Trust Doctrine are the common law doctrines of custom and
usage and prescriptive easement, which recognize that the public has a right
to use a pathway after long and continued use.
The
implied dedication of a beach for public use was upheld in the 1932 Rhode
Island State Supreme Court decision in Talbot v. Town of Little Compton:
-
A
private party claimed ownership under a chain of title dating back to
1849.
-
There
was evidence that for many years the townspeople had used the beach for
hunting, fishing, and bathing.
-
The
court stated that this use raised a presumption of dedication.
Similarly,
in the case of Caminiti v. Boyle (1987), the Washington State
Supreme Court found that the public could cross private docks that block
passage over Public Trust lands. And the Massachusetts Coastal Access
Program actively identifies and preserves rights of way down to the sea
established through historic use.
