Introduction

The Public Trust Doctrine

By Paul M. Bray

The Public Trust Doctrine is an historical and currently evolving concept relating to the ownership, protection and use of essential natural and cultural resources. It is receiving increased attention in the United State because of the growing awareness of the duty of care owed the environment. The Public Trust Doctrine may prove useful as the nations of the world develop their own ecologically based real property law.

The origins of the Public Trust Doctrine were the declaration of the Justinian Institute that there are three things common to all mankind: air, running water, and the sea (including the shores of the sea). Title to these essential resources or the common are held by the State, as sovereign, in trust for the people. The purpose of the trust is to preserve resources in a manner that makes them available to the public for certain public uses.

There are two co-existing interests to trust lands: the jus publicum which is the public's right to use and enjoy trust lands; and the jus privatum which is the private property rights that may exist in the use and possession of trust lands. The State may convey the jus privatum to private owners, but this private interest is subservient to the jus publicum which is the State's inalienable interest that it continues to hold in the trust land or water.

The Public Trust Doctrine became part of the English Common Law and the courts in the United States have applied the doctrine. Also, some State Constitutions incorporate the Doctrine like the Hawaiian Constitution which declares that, "All public natural resources are held in trust by the State for the benefit of the People."

Until recent decades the predominant commons recognized as subject to the Public Trust Doctrine was tidal and navigable waters. American cases have held that title to lands underlying tidal and/or navigable waters are held my the State in its sovereign capacity as trustee for the benefit of the citizens of the State who have the right to use the waters and adjacent land for navigation and to "fish, hint, or bathe...."

The common has been expanding in keeping with our changing ideas about the proper protection and management of natural and cultural resources fundamental to the welfare of society and future generations (intergenerational equity).

Sovereign responsibility for protection of the environment has been growing in nations individually and collectively. In the United States, the National Environmental Protection Act (the environmental impact statement law) declares that, "[I]t is the responsibility of the Federal Government to use all practicable means...to...fulfill the responsibilities of each generation as trustee of the environment for succeeding generations...." Globally, for example, the Convention of Biological Diversity contains far reaching obligation for each party to the Convention for the conservation of biological diversity at the genetic, taxonomic and ecosystem levels.

This has resulted in new attention to the Public Trust Doctrine as a legal framework for resource planning and management.

Beginning in 1991, the Government Law Center of Albany Law School has sponsored conferences on the Public Trust Doctrine. The participants at these conferences have focused on three primary topics: 1) the changes taking place in the Doctrine; 2) its applicability in creating a framework for the management of protected areas; and 3) whether the Doctrine creates an exception to court imposed limits to regulation of private property.

With regard to the first topic, PTD is being seen as dynamic and subject to change. For example, traditionally PTD was applied to protection of access to the common for public benefit. Public uses of navigation, commerce, recreation and fishing have been legally protected under PTD.

A change in the application of PTD from protecting these uses to preventing overexploitation of the environment is occurring. The environmental is viewed as encompassing natural, scenic, historic, aesthetic and even economic values.

A Court in New York State declared that, "[T]he entire ecological system supporting the waterways is an integral part of them and must necessarily be included within the purview of the trust." The Court was calling for protective measures against actions which would degrade the trust resource, the waterway.

Another Court in the State of Iowa noted that the Public Trust Doctrine has, "emerged from the watery depths [if navigable waters] to embrace the dry sand area of a beach, rural parklands, a historic battlefield, wildlife, archeological remains, and even a downtown area."

At a 1995 conference, Professor of Law Robert Reis expressed the opinion that the enhanced data on natural and cultural resources made available through the information and analysis capabilities of Geographic Information Systems ("GIS") will greatly expand the application of the Public Trust Doctrine. He believes that the GIS data framework will facilitate the identification of interests (both of use and protection) and resources subject to the Doctrine to determine whether the State is meeting its fiduciary responsibility for trust resources.

The second topic at the conferences has been the usefulness of PTD for area-wide management of ecosystems, watersheds, bio-regions, cultural landscapes and other protected areas.

The report of the US National Project on the Public Trust Doctrine pointed out that, "area-wide management programs may be structured, using the public trust doctrine with the state's police in tandem, to encourage comprehensive management over lands, waters and resources within the area, and thus avoid the limitations inherent in ad hoc permitting decisions."

Area-wide management using the Doctrine begins with identifying the common resources making up the Trust, the public's interest in these resources and public benefit uses for them. Uses may range from recreational and environmental to economic. The public interest forms the basis for identifying and prioritizing the use of the public trust resource.

Finally, the participants at the conferences have looked at the constitutional issue of regulatory takings. Local governments in the USA have become reluctant to exercise their powers to regulate land use because of US Supreme Court decisions that certain acts of regulation constituted a taking of private property for which the private owner must be compensated. Some scholars have expressed the view that the common law PTD may protect governmental regulation of land which is in furtherance of an ecologically based real property law.

PTD may prove useful in providing a global legal framework for protecting and managing natural and cultural resources both within national jurisdictions and in supranational forums. It facilitates the weighing of legitimate public and private as well as conservational and development interests to create a well-balanced plan for resources protection and use.

Recent Developments (as of August 1, 1998)

National Conference sponsored by the North American Program, Land Tenure Center, University of Wisconsin-Madison entitled, "Who Owns America? II: How Land and Natural Resources are Owned and Controlled" which was held 3-6 June 1998 included a session on the Public Trust Doctrine. Paul Bray, adjunct lecturer in the Department of Geography and Planning of the University of Albany and a member of the Government Law Center Advisory Board presented a paper on "The Public Trust Doctrine as Protector of Intergenerational Equity". Bray talked about the significance of the public trust doctrine as a doctrine and a legal and planning tool for the fulfillment of the sovereigns role as trustee of the environment for future generations.

In the case of W.J.F Realty Corporation and Reed Rubin v. the State of New York , the New York State Supreme Court, Suffolk County upheld the Long Island Pine Barrens Act ("Act") against a takings challenge by highlighting the public trust doctrine. The decision was handed down on April 22, 1998, Earth Day. Briefly state, the Act is a comprehensive planning law that established in a 100,000 acre area of Long Island a 50,000 acre protected preserve surrounded by a 50,000 acre managed growth area. Justice William L. Underwood's decision includes an analysis of the common law and he concludes that, "Contrary to popular misconception, the Common Law did speak on the subject of environmental regulation". He concludes his analysis by declaring that:

In enacting environmental mandates (as in protecting the right of property), we are merely discharging our obligation under the societal contract between 'Those who are dead, those who are living and those yet to be born'. (Edmund Burke)...This generations duty has been discharged merely be setting aside this land for their (future generations) use under the doctrine of the Public Trust.

The potential of public trust doctrine "as the basis for a more active and effective public posture on farmland protection" is discussed in a paper entitled, "In Pursuit of the Commons: Toward a Farmland Protection Strategy for the Midwest", by Lawrence W. Libby, Professor of Food and Resource Economics, University of Florida and Visiting Scholar, Center for Agriculture in the Environment, DeKalb, Illinois. The paper was prepared for the Social Science Research Institute Distinguished Lecture in the Social Sciences, Northern Illinois University, November 7, 1996. Prof. Libby highlights the "broad though disorganized interest in the public good aspects of farmland" for protection under the public trust doctrine.

Books

Putting the Public Trust Doctrine to Work, 2nd Ed., Published by the Coastal States Organization, Inc., Suite 322, 444 North Capitol St., NW, Washington, DC 20001.

In Land We Trust: Environment, Private Property and Constitutional Change by Calestous Juma and J.B. Ojwang, Zed Books, London. (From In Land We Trust p. 372, "The doctrine of the public trust is not alien in African society and is not a peculiarity of 'modern' law. In fact, this doctrine is central to tradional juridical systems and has governed the management of natural resources, especially land, for generations."

Government Law Center Publications Albany Law Journal of Science & Technology, "Conference on the Public Trust Doctrine", Vo. 4, No. 1, 1994.

Albany Law Environmental Outlook, "Outlook on the Public Trust Doctrine: Does the Public Trust Doctrine Have New Meaning in the Light of Today's Changing Environmental Values?", Vol. 2, Issue 2, Winter 1996.

Law Review and Other Articles Joseph L. Sax, "The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention," 68 Mich. L.R. 473 1970.

Casey Jarman, "The Public Trust Doctrine In the Exclusive Economic Zone", 65 Oregon L.R. 1, 1986.

P. Sarahan, "Wetlands Protection Post - 'Lucus': Implications of the Public Trust Doctrine in Takings Analysis", 13 Environmental and Planning Law Journal 537, 1994.

M. Blumm, H. Dunning and S. Reed, "Renouncing the Public Trust Doctrine: An Assessment of the Validity of Idaho House Bill 794", 24 Ecology L.Q. 461, 1997.

Alison Rieser, "Ecological Preservation as a Public Property Right: An Emerging Doctrine in Search of a Theory", 15 Harv. Envtl. L.R. 393, 1991.

Richard J. Lazarus, "Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine", 71 Iowa 609, 1986.

Steven Jawetz, "The Public Trust Totem in Public Land Law: Ineffective - and Undesirable - Judicial Intervention", 10 Ecological L.Q. 455, 1982.

James P. Powers, "Reinvigorating Natural Resources Damages Actions Through The Public Trust Doctrine", 15 The New York Environmental Lawyer 21, 1995.

J. Archer and T, Stone, "The Interaction of the Public Trust and the 'Takings' Doctrines: Protecting Wetlands and Critical Coastal Areas", 20 Vermont L.R. 81, 1995.

R. P. Jaunich, "The Environment, the Free Market, and Property Rights: Post - 'Lucus' Privatization of the Public Trust", 15 Public Land L.R. 168, 1994.

John A. Humbach, "Public Rights in the Navigable Streams of New York", 6 Pace Envtl. L.R., 1989.

Hunter, "An Ecological Perspective on Property: A Call for Judicial Protection of the Public's Interest in Environmentally Critical Resources, 12 Harvard L.R. 31, 1988).

G.D. Meyers, "Variation on a Theme: Expanding the Public Trust Doctrine to Include Protection of Wildlife", 19 Environmental Law 723, 1989

Cases Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892). (The "lodestone" of American public trust law.)

National Audubon Society v Superior Court, 658 P.2nd 709 (Cal. 1983). (The "Mono Lake" case.) Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988)

San Diego Cty. Archeological Society, Inc. v. Compadres, 81 Cal. App. 3rd 923, (1978)

Kootenai Envtl. Alliance v. Panhandle Yacht Club, 671 P.2d 1085 (Idaho 1984)

Montana Coalition for Stream Access v. Curran, 682 p.2d 163 (Mont. 1984)

Just v. Marinette County, 56 Wis. 2d 7, 201 N.W. 2d 761 (1972)

Constitutional Provisions and Laws Montana Const., Art. IX, Sec. 3 provides that: "All Surface, underground, flood, and atmospheric waters within the boundaries of the State are the property of the State for the use of its people and are subject to appropriation for beneficial uses as provided by law."

Alaska Const., Art. VIII, Sec. 3 provides that "[W]hereever occurring in their natural state, fish, wildlife and waters are reserved for the people for common use."

New York State Public Land Law, Sec. 75 (7)(a) on grants of lands under water provides that: "In making any grant, lease, permit or other conveyance, the commissioner of general services shall, upon administrative findings, and to the extent practicable, reserve such interests or attach such conditions to preserve the public interest in use of state-owned land underwater and waterways for navigation, , commerce, fishing, bathing, recreation, environmental protection and access to the navigable waters of the state, with due regard for the need of affected owners of private property to safeguard their property."

New York State Canal Law, Sec. 138-c(1)(c) on preparation of a Canal Recreationway Plan for the State's Canal System provides that the plan shall include: "...provisions which protect the public interest in such lands and waters for purposes of commerce, navigation, fishing, hunting, bathing, recreation and access to the lands and waters of the state, and otherwise encourage increased public access through the establishment of parks, scenic by ways and recreational trails on the canal system."

Idaho Code, Sec 58-1201 states the intention, "to clarify the application of the public trust doctrine in the state of Idaho and to expressly declare the limits of its common law doctrine in accordance with the authority recognized in each state to define the extent of the common law."