Unpacking the public trust doctrine: a journey into foreign territory



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UNPACKING THE PUBLIC TRUST DOCTRINE: A JOURNEY INTO FOREIGN TERRITORY
E van der Schyff*
I keep six honest serving men (they taught me all I knew);

Their names are What and Why and When and How and Where and Who.

Rudyard Kipling, The Elephant's Child
1 Introduction
The past decade has borne witness to the transformation of South Africa's natural resources law with the introduction of a new legal concept to South African jurisprudence. The table for transformation was set with Section 3 of the National Water Act,1 in which the concept of "public trusteeship" was formally introduced into South African law without great fanfare. Then followed the National Environmental Management Act,2 the Mineral and Petroleum Resources Development Act3 and the National Environmental Management: Biodiversity Act,4 each ingraining this novel concept of "public trusteeship" more firmly into South African jurisprudence. With the promulgation of these pieces of legislation, the state has had conferred upon it the obligation to act as either trustee or custodian of the environment or a specific natural resource, whilst the environment or that particular natural resource has been bequeathed to the people of South Africa.
In the quest to demystify the incorporation of the concept of "public trusteeship" in South Africa, this article, as a first tentative step, proposes focusing solely on the public trust doctrine as it functions in American jurisprudence. It is the aim of the article to give a thorough theoretical exposition of the development and application of the public trust doctrine in American jurisprudence in order to provide the South African scholar with a perspective on a legal construct founded on the philosophical notion that governments exercise a "fiduciary trust" on behalf of their people.
The concept of "public trusteeship", as it is embodied in South African legislation, encapsulates the sovereign's duty to act as guardian of certain interests to the benefit of the nation as a whole. This concept is founded securely in legal philosophy. Locke stated in his Second Treatise on Civil Government5 (1685) that governments merely exercise a "fiduciary trust" on behalf of their people. Pound6 suggests that the role of states in the management of common natural resources must be limited to "a sort of guardianship for social purposes" and Marx7 voices the opinion that:
From the standpoint of a higher socio-economic formation, the private property of particular individuals in the earth will appear just as absurd as private property of one man in other men. Even an entire society, a nation, or all simultaneously existing societies taken together, are not owners of the earth. They are simply its possessors, its beneficiaries, and have to bequeath it in an improved state to succeeding generations as boni patres familias.
Through the concept of "public trusteeship", a stewardship ethic has been incorporated into South African natural resources law.8
It is important to realise that public trusteeship is more that the embodiment of a philosophical thought. It is a concept that forms the core of respectable foreign legal constructs. In this regard, one can refer to the Anglo-American public trust doctrine, the notion found in French jurisprudence in which a clear distinction is made between le domain publicand propriété (private ownership), and the concept applicable in German jurisprudence in which a "certain category of property can be removed from the sphere of private property altogether"9 or in which "a certain category of property rights can be transformed into public-law rights for the sake of more effective control".10 All of these are examples of legal constructs founded on a variation of the same philosophy – that in some defined instances, governments act solely as guardians or custodians on behalf of the people they represent. Although based on the same philosophical foundation, the application and consequences of each of these foreign legal constructs differ substantially.
Therefore, it would be much too simplistic to summarily equate public trusteeship as it is found in South African legislation with the embodiment of either a philosophical idea or a complicated foreign legal doctrine. The mystery that surrounds the concept of "public trusteeship", as it has been introduced through legislation into South African jurisprudence, demands that it be unravelled in the course of time. This process will necessitate comparative analysis and innovative thinking, but it is a process in which we shall inevitably have to engage, for the incorporation of the concept of "public trusteeship" has profoundly influenced property theory and the law of property in particular, given that the notion challenges the known concepts of "ownership" and "property" in South African jurisprudence. In the South African context, the way in which any "thing" can belong to the "nation" or the "people of South Africa" must firstly be determined, should neither the nation nor the "people of South Africa" be entities (or an entity) clothed with legal personality enabling them to acquire or hold property. Whilst South African courts have referred to "the State fulfilling its role as custodian holding the environment in public trust for the people",11 there has been no attempt in reported cases to give a thorough exposition of the notion.
This article intends to give an account of the historical development and application of the public trust doctrine in American jurisprudence with specific reference to the nature and scope of the doctrine, whilst highlighting the consequences of the application of the doctrine for both environmental and property law.
2 The American public trust doctrine
The modern public trust doctrine is controversial and complex.12 It has been hailed as the ultimate environmental protection tool by many ecologists and environmentalists,13 yet others have criticised it.14 Some perceive the doctrine as ground-breaking, yet others feel it destroys the basic fabric of property law.15
As a distinction is made in literature between the traditional public trust doctrine and the modern public trust doctrine, the discussion begins with a brief view of the traditional public trust doctrine and the legal nature of the doctrine, and then describes the public trust doctrine as a contemporary legal construct.
2.1 The traditional public trust doctrine
2.1.1 The essence of the traditional public trust doctrine
The public trust doctrine was developed in the American legal system in response to the desire to determine the ownership of the beds of navigable waters.16 It was the product of an effort to reconcile the opposing concepts of "common ownership", dating back as far as the Roman Empire,17 and the development of the notion that virtually everything has an owner.18
The public trust doctrine essentially recognises that certain public uses ought to be specifically protected.19 It entails the distinction between private title and public rights and recognises that the state, as sovereign, acts as trustee of public rights in certain natural resources.20 As such, the public trust doctrine embodies the arguments of Marx, Pound and Locke referred to in the introduction of this article.
The legal consequences of applying this line of thought to a legal system culminated in the drawing of a distinction between property that could be owned privately or granted to private entities and property incapable of ordinary and private occupation, reserved to be accessed by and used to the benefit of the public.21 Because certain interests such as navigation and fishing were sought to be preserved for the benefit of public use in the early American society, property used for those purposes was distinguished from public property. The latter could be granted to private owners by the sovereign.22 The former was subject to the state's dominium and could not be relinquished.23 Initially, only land covered by tidal waters was subject to the protection of the doctrine.24 Gradually, the geographical reach of the doctrine was extended25 to cover all navigable waters and the land beneath them, without reducing the scope of the public trust in tidelands.26
Although states could exercise their dominiumonly in a way that would ensure freedom in the use of property subject to the doctrine – a use consistent with the public interest – the use of lands subject to the public trust doctrine could be modified or altered. Any modification of existing use was permissible as long as the public interest was not substantially impaired.27 In both the Martin and Shively cases, it was held that since the suit property was held in trust for the public, property clothed with this perpetual public right of user could not easily be alienated by the sovereign.28 Courts found that a stricter standard than usual was to be applied in instances in which conveyances were scrutinised. There was a presumption against the sovereign's intention to part with any portion of the public domain, unless clear and specific words to that effect were used.29 It was also held that whatever title the grantee took was burdened by the public trust and would be read in conformity with it.30 The state lacked the power to diminish public trust rights when trust property was conveyed to private parties.31 Thus, when a private party acquired property burdened with the public trust, it acquired only the jus privatum. The test to determine the validity of alienation would, therefore, lie in the question of whether the grant was of such magnitude that the state would effectively have given up its authority to govern the property to protect the public's rights in the property.32
Scrutiny of the traditional public trust doctrine highlights the following features:33


  1. the doctrine applied to tidal and navigable waters and the soil covered by these waters;

  2. original state ownership of these resources was confirmed;

  3. this state ownership was not unrestricted but was subject to the public's right of use for purposes of navigation, fishing and commerce;

the uses of navigation, fishing and commerce were the only protected uses, and it can be inferred that it was not the broad public interest in the resources that was protected but the public interest in relation to these specific uses. These interests were deemed protectable in accordance with the societal values of the era in which they originated;

public uses could be diminished or altered so long as the public interest was not substantially impaired;

the courts could apply public trust reasoning when scrutinising government dealings in connection with trust resources, and could even put an end to and reverse government actions not in line with the principles of the trust; and

on the rare occasions that trust property was alienated, the property received by the new owner would be subject to the conditions of the trust.
2.1.2 The classification of the traditional public trust doctrine
The classification of the "public trust" as a true legal trust has been supported and opposed. On the one hand, Stevens34 suggests that American law adopted the trust analogy to satisfy the need to identify an owner of at least the legal title to the resources in which people had a common right.35 Ownership of these resources was then burdened with "the rule of law that public rights, and such things as are materially related to them, are inalienable" 36 and could consequently not be separated from the sovereign. Huffman,37 on the other hand, argues convincingly that the use of the word "trust" in the name of the doctrine is misleading. He maintains that only in the original English law formulation could the notion possibly be described as a trust:38
In a legal regime that recognised title to waters and submerged lands in the King, it was possible to describe the rights held in common by the members of the public either as an easement or as an equitable interest in property in which the King had legal title. Because the King was clearly distinct from the people (that is, the trustees and the beneficiary were not the same), the trust model is applicable. Nevertheless, the questions of who created the trust, and thus its purpose, remain unanswered.
In the American context, this explanation would not suffice. To position the notion within the trust concept, more is needed than the mere acknowledgement that legal title can be said to vest in the state whilst the equitable title vests in the public.39 The tripartite nature of the creation and operation of trusts disqualifies the traditional American public trust from being classified as a true legal trust.40
It appears that the word "trust" refers to the fiduciary responsibility of the sovereign rather than to the legal nature of the doctrine. The state fulfils the duty imposed on it by the public trust doctrine, by honouring the restraint on alienation and protecting the public's right of use. The public trust right exists not at the grace of the sovereign, but despite it. In its traditional, common-law formulation, the traditional public trust doctrine is therefore best understood as an easement that members of the public hold in common.41 Drawing from the earliest origins of the public trust doctrine, Huffman42 indicates that the doctrine was the basis of private rather than public rights: "The private rights were held in common by all members of the public, but they were exercised privately." As such, it falls within the sphere of property law.43
2.2 The modern public trust doctrine
Considering the law has no life of its own and that property, like any other social institution, has a social function to fulfil,44 it is not remarkable to find that the traditional public trust doctrine has evolved into a modern public trust doctrine. It has been stated that the public trust doctrine "perseveres as a value system and an ethic as its expression in law mutates and evolves".45 Development began once the doctrine's reach was expanded from tidewaters to navigable waters,46 and changing public needs created by growth and progress have since stimulated further development. What was formerly a common-law principle has evolved into a modern doctrine with interests in constitutional and statutory law.
The development and principles underlying this development will be scrutinised in the following section. The development concerns mainly the codification of the doctrine and the expansion of its scope. The underlying principles described above remained unchanged.47 Through incorporating a wider genre of objects under the public trust, the doctrine has expanded to protect more than navigation and fishing rights from both individual exploiters and corrupt or incompetent governments. By placing public trust property in a unique property regime in which it is neither susceptible to unlimited private ownership nor unrestricted state ownership, and by binding the state with the responsibility of guarding the public's interest in that specific object, a unique property interest was vested in each member of the public purported to be protected by the public trust – normally the citizens of the country.
2.2.1 The development of the traditional public trust doctrine into the modern public trust doctrine
2.2.1.1 First tentative steps towards expansion
Joseph L Sax48 has widely been acknowledged as the father of the modern public trust doctrine.49 From the introductory comments made in his seminal work,50 it is clear that Sax considered the application and expansion of the public trust doctrine in an attempt to find one norm that could apply throughout the spectrum of environmental management problems.51 Inconsistency in legislative response and administrative action and the enormous disparity in legal standards, whereby different resource problems were managed, necessitated the search for "a broad legal approach which would make the opportunity to obtain effective judicial intervention more likely".52 In order to be an effective tool in the trade of environmental protection, the public trust doctrine had to possess three characteristics. It had to create an obligation that could be enforceable against the government, it had to vest some concept of a legal right in the general public, and it had to be capable of being interpreted consistent with contemporary concerns for environmental quality.53
Sax54 believed that the public trust doctrine possessed all three of the required attributes, and that this therefore rendered it "useful as a tool of general application for citizens seeking to develop a comprehensive legal approach to resource management problems".
Sax understood the principle underlying the Roman concepts of "res omnium communes" and "res publicae" valued the protection given to certain public uses in the English common law. He found that those same principles underlie the American law of navigable waters and the sea. The potential this doctrine held for environmental protection did not escape his attention. Initially,55 Sax found conceptual support for the doctrine in a combination of ideas "which have floated rather freely in and out of American public trust law".56 The most important of these theories was that "certain interests are so intrinsically important to every citizen that their free availability tends to mark the society as one of citizens rather than of serfs".57
It was, therefore, unthinkable that any person could claim a private property interest to the detriment of the community. A related principle was that "certain interests are so particularly the gifts of nature's bounty that they ought to be reserved for the whole of the populace".58
Then there was also the recognition "that certain uses have a peculiarly public nature that makes their adaptation to private use inappropriate".59 Von Tigerstrom60 indicates that the key elements in all these ideas appear to be access and conservation: preserving public access to important resources and conserving those resources for the use of the public. The public trust concept provided a point of intersection for these notions.61
2.2.1.2 Judicial expansion of the doctrine
Olson62 is one of many commentators who argue that the public trust doctrine was sufficiently flexible not to be confined by traditional boundaries. He contends that the doctrine could be used to protect other unique natural resources to which the public asserts a special claim. He found support for his argument in the locus classicus of public trust law, the Illinois Central case.63 He points out that the Illinois Central case explicitly noted that submerged lands were just one example of public trust resources64 and that the court allowed for future development by stating:65
So with trusts connected with public property, or property of a special character like lands under navigable waters, they cannot be entirely beyond the direction and control of the state. [own emphasis]
Recognising that public rights' protection was thus being accorded not only to traditional trust objects, but also to "other areas of special public importance farther inland",66 Olson analysed the courts' ratio decidendi, which is binding on courts in lower jurisdictions owing to the application of the stare decisis rule. He wished to find an underlying principle that would indicate the extent to which the doctrine could be expanded.67 The common principle he found in all the cases he referred to is aptly encapsulated in the following citation:68
The public trust doctrine – like all common law principles – should not be considered fixed or static, but should be molded and extended to meet changing conditions and needs of the public it was created to benefit.
The area of application of the doctrine could be expanded in terms of the same principle that governed the first expansion from tidewaters to navigable waters.69 This illustrates that law in a democratic society reflects society's values. Although it was established that the range of public purposes protected by the trust is dictated by the "public need for continued protection of a public benefit related and attached to the land",70 the parameters of the "public need" were not finally determined by the different decisions to which Olson referred. He believed that the concept appeared to be sufficiently broad to fit prima facie showings of public need through past use and activities, as well as current legislative declarations of intent concerning natural resources.71 Because the public's needs were regarded as an important factor in determining the interests and uses protected under the trust, American case law states that "the servitude of public interest depends rather upon the purpose for which the public requires the use of its streams, than upon any particular mode of use".72
This reasoning resulted in the extension of trust protection to public uses including sailing, rowing, fishing, fowling, bathing and skating.73 It also resulted in the recognition that one of the most important public requirements relating to tidelands is the preservation of these lands in their natural state, so that they may serve as ecological units, inter alia, for scientific studies, as open spaces, and as environments that provide food and habitat for birds and marine life and affect the scenery and climate of areas.74 In 2005, the Supreme Court of Michigan held through Corrigan J that traditional public rights under the public trust doctrine can be protected only by simultaneously safeguarding activities inherent in the exercise of those rights.75 Stevens76 indicates that the development of oil and other mineral resources discovered under tidelands also emerged as a public trust use in response to the felt necessities of the twentieth century.
In National Audubon Society v Superior Court of Alpine County,77 the court expanded the reach of the doctrine to non-navigable tributaries of navigable waters, in which government-approved conduct on the tributaries affected the public trust values in the protected water source. This development is consistent with public trust reasoning because it would be illogical to expect the court, as watchdog, to ensure that public trust values are protected by focusing only on the resource itself but not on the surrounding circumstances that impact on and influence the status of that resource. A year later, in 1984, the Supreme Court of Montana decided that the navigability of water was immaterial in determining whether the state held waters in trust for the public.78 In 2004, a decision to the same effect was made by the Supreme Court of South Dakota in Parks v Cooper.79 However, this development did not take place in all the states. In 1990, the Supreme Court of Kansas concluded that a non-navigable body of water overlying private beds was not subject to the public trust.80 This diversity in approach emphasises the uniqueness of the application of the doctrine in the different states. It is apparent that expansive developments of the public trust doctrine had occurred and in all likelihood will occur in state courts.81
The development that took place in individual states illustrates the evolutionary character of the law.82 Dunning,83 however, returns our attention to the historical classification of the resources covered by the doctrine. He emphasises that the two most important characteristics that a resource must possess before it can be regarded as protected by the doctrine are scarcity and natural suitability for common use: "Common use by the general population serves as the basis to characterise these natural resources as common heritage or public trust assets."84
The sovereign's responsibility lies within this parameter as the government has an obligation to preserve the people's historic freedom of access. This, argues Dunning,85 is what justifies the demand that the state recognise a public property right and that the courts limit legislative abolition or modification of that property right.
The initial aim of using the public trust doctrine as a device for ensuring that valuable government-controlled resources are not diverted to the sole benefit of private profit seekers86 has exploded into an all-embracing environmental protection mechanism. In cases in which the traditional doctrine evolved to protect common rights of access for commercial purposes, the modern public trust doctrine proclaims conservationist principles. It is this expansion of the doctrine to cover property not previously subsumed by the doctrine that elicits criticism.
2.2.1.3 Criticism against the modern public trust doctrine
Huffman87 criticises the public trust doctrine for making it possible for the judiciary to intervene and annihilate government action. He argues that the doctrine undermined democracy88 and constituted a remedy for the perceived failure of public allocation.89 Huffman objects to the fact that judicial review under the doctrine has taken over the role appropriately played by the political branches of government. Lazarus90 argues that the public trust doctrine rests on legal fictions created to avoid judicially perceived limitations or the consequences of existing rules of law. He describes the notions of "sovereign ownership" of certain natural resources and the "duties of the sovereign as trustee" of natural resources as "judicially created shorthand methods to justify treating differently governmental transactions that involve those resources".91
Despite this critique, the public trust doctrine remains part of American jurisprudence. Although the modern public trust doctrine is primarily a creation of state courts,92 Sax's work motivated the legislature to take action,93 thus protecting the flexibility and vitality of the doctrine because the active management of the corpus of the trust remains the responsibility of the elected representatives of the public.94

2.3 Infringement of vested private property rights
The public trust doctrine interferes with private property rights. In American jurisprudence, it has been asked whether the Fifth Amendment95 can be regarded as a limitation on the public trust doctrine. The principal problem is the extent to which the public trust doctrine can eliminate property rights without Fifth Amendment compensation.96 Should a vested right be reduced or extinguished because of incompatibility with public trust uses, the question is whether the deprived person is entitled to be compensated for the loss.97 It is on this specific aspect that the expansion of the doctrine to new fields not historically germane to the doctrine provokes the most criticism.98 Callies and Breemer99 correctly state that the expansion of the doctrine has precipitated a collision between the newfound rights of the public under the modern public trust doctrine and private rights traditionally flowing from private property. In evaluating the effect of the public trust doctrine on any given resource, it should, however, be kept in mind that the doctrine does by no means permit every use of trust lands and waters;100 neither does the status of trustee permit the state, through any of its branches of government, to secure to itself property rights held by private owners.101 It is only limited public rights that are protected.102
In order to contextualise the extent to which the doctrine interferes with private property rights, it is necessary to cast a bird's eye view over relevant aspects of American takings law.


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