Unpacking the public trust doctrine: a journey into foreign territory



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2.3.1 The takings analysis103
In American jurisprudence, the Takings Clause of the Fifth Amendment prevents the government from taking "private property … for public use without just compensation". However, a "taking" need not arise from an actual physical occupation of land by the government. The Supreme Court has held that "if a regulation goes too far it will be recognised as a taking".104 In order to prove a compensable taking not arising from the physical appropriation or occupation of private property, the Penn Central case analysis applies. The American Supreme Court set out a three-part analysis in the Penn Central case to determine whether a compensable taking has occurred. The main factors that provide the framework for the analysis are: (a) the character of government action; (b) the economic impact of the action on the claimant; and (c) the extent to which the action interfered with the claimant's reasonable investment-backed expectations. The court stressed that the focus must be on the "parcel as a whole" 105 and that each case should be judged on its own facts106 when conducting the takings analysis. It is made clear in Lucas v South Carolina107 that for purposes of the takings analysis, the title one takes to property is subject to the background principles of state law. In the Lucas case, the Supreme Court stated that the government need not compensate the property owner should the regulated or prohibited use not have been "part of his title to begin with".108 This perspective should be kept in mind when the issue of the extent to which the application of the doctrine interferes with private property rights is evaluated.
2.3.2 Perspectives from practice
In the National Audubon Society , the public trust doctrine was formulated to allow the state to reconsider109 water allocation decisions that permitted harm to come to the corpus of the trust, even though the initial allocation decisions were made after due consideration of their effect on the public trust. The purpose of the modern trust doctrine was defined by the court as follows:110
The public trust is more than an affirmation of state power to use public property for public purposes. It is an affirmation of the duty of the state to protect the people's common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust.
The court confirmed that the public trust doctrine preserves the continuing sovereign power of the state to protect uses for water deemed to be in the public interest, as there are no "vested rights" in trust property.111 Although the decision in this case was merely advisory because no vested rights had been affected directly, the California Supreme Court suggested that it would reject a claim that these reductions constitute takings for which compensation is required, as no one is divested of any title to property. However, this could result in the total annihilation of owners' rights towards their property or exclude current right holders.112
The Washington Supreme Court expressed a similar opinion in Orion Corporation v State of Washington.113 The Court held that the public trust precludes a constitutional claim for taking without compensation because title to trust resources is acquired subject to whatever state action may be deemed necessary to protect the public's interest in the trust resources.114
Perhaps the most far-reaching extension of the public trust doctrine is illustrated by the Hawaiian case In re Water Use Permit Applications.115 Here, the court imposed a broad version of the doctrine onto the state's fresh water supply, thereby rewriting Hawaii's legislative water code. The court held that "resource protection" was a protected public trust use of such resources. In response to a taking objection, the court stated:116
[T]he reserved sovereign prerogatives over the waters of the state precludes the assertion of vested rights to water contrary to public trust purposes. This restriction preceded the formation of property rights in this jurisdiction; in other words, the right to absolute ownership of water exclusive of the public trust never accompanied the 'bundle of rights' conferred …
Manzanetti117 indicates that the public trust doctrine avoids the takings issue by claiming a pre-existing title118 in the property in favour of the state. He argues that the compensation requirement may be dispensed with only if the property holder had actual or constructive prior notice that the state was obliged to protect public trust uses.119 Manzanetti continues by stating that the doctrine would be applicable as a means of avoiding the compensation requirement only if it could be shown that the right holder had prior notice of expectations by the public that are incompatible with his expectations regarding his right as owner or holder.120 He researched the development of the scope of the public trust doctrine and confirmed that although the uses protected by the public trust remained linked to navigation, commerce and fishing for several decades, the "changing public needs" dictated the extension of such protection. He contends that the retroactive application of this expanded definition of the public trust in derogation of exercised property rights constituted a taking requiring compensation.121 Determining the existence of prior notice would remain a factual question to be answered in every individual case.
Manzanetti's line of reasoning was echoed in the US Supreme Court's decision of the Phillips Petroleum Company .122 The court found that:
The fact that certain private claimants have long been the record title holders of lands in the state of Mississippi that lie under nonnavigable waters, or that such claimants have long paid taxes on such lands, does not divest the state of its ownership of those lands under the public trust given to the state upon its entry into the Union … the state's ownership of those lands could not be lost via adverse possession, laches, or any other equitable doctrine.123
The importance of the decision of the National Audubon Societycase the government's greater reliance on the public trust doctrine as a tool to expand sovereign authority and enhance state enforcement efforts over natural resources covered by the doctrine.124 A natural result of the expansion of the doctrine that compromises previously privately held property is the blurring of traditional boundaries between public and private property.125
Reed126 warns that the public trust doctrine should not be regarded as creating a reversionary right by which the public can reclaim trust property long lost. In cases in which the public uses secured by the doctrine are lost for any significant period of time, the doctrine should cease to apply. He emphasises the importance of the law's interest in the stability of land title and argues that the "re-emergence of an ancient doctrine should not be allowed to upset titles created and relied upon previous to the doctrine's rediscovery".127
2.3.3 Impairment of the public trust and limitation on government activities
The limitations placed on government's activities, strictly speaking, determine the scope of the public trust doctrine. The state is regarded as the trustee of property impressed with the public trust doctrine, and the legislature is charged with the task of managing the trust.128 As such, an affirmative duty is imposed on the legislature to act in all circumstances in which action is necessary, be it to preserve or promote that which is held in trust.129 The judiciary is to act as a watchdog of the trust, and existing precedents have indicated that the judiciary would go beyond form to substance to ensure that the legislative authority fulfils its duty in administering the trust.130
The broadest parameter of the public trust doctrine, therefore, has its origin in the state's valid exercise of the police power and the power of eminent domain in the reallocation and disposition of natural resources.131 The public trust doctrine is also an additional limitation on the exercise of the police power and the power of eminent domain in relation to the reallocation of natural resources. In a sense, this doctrine expands the exercise of police power because stricter regulation may be required to safeguard the use of the resource by the public.132 Bader133 appropriately states that "unlike most property, real estate containing public trust resources is subject to far more restrictive regulation in its use than other private lands". This stems from the unique value trust resources have to society as a whole.
However, the view that the doctrine is a source of authority for state regulation is viewed by some commentators as a distortion of the historical purpose of the public trust doctrine:
The problem with the equation of public trust and police power is that the public trust doctrine purports to be the basis of a rights claim rather than a source of governmental power. Because public trust rights are understood to predate other property rights, their status in relation to those rights claims is always prior in time, and therefore, superior in right. There can be no claim that enforcement of public trust right results in a taking because individual property rights are by definition subject to the prior public rights.134
The public trust doctrine simultaneously provides a basis for the state to retain continuing jurisdiction over the trust corpusso that continuing choices dictated by the public need can be made.135 However, the power of eminent domain may be limited in cases in which a public trust is shown to be present in the resource, as the taking needs to be proved consistent with the public's right to use the resource.
Five elements have been identified on the basis of case law as the criteria that must be applied when the factual determination of justified impairment of the trust corpus to be made.136 The application of the following five basic concepts will indicate the extent and validity of the impairment:


  1. some retention of governmental control;

continued public use and availability;

relative diminution of size;

non-interference with past or existing public uses; and

a subjective test of public reaction to the new or proposed use.
In instances in which proposed dealings with trust resources are being evaluated, these five elements will indicate whether the proposed action honours public trust values. In cases in which courts have to resolve conflict between public trust use rights and other current or future uses of trust resources by private landowners and public entities, a similar but extended balancing test has been proposed.137 This test also consists of five weighted factors:


  1. current public trust uses should be accorded the greatest weight;

  2. potential public trust uses should be considered;

compatibility of new uses with public trust rights should be investigated;

  1. the reasonable expectations of all concerned parties and the public should be considered; and

whether appropriation or private use of trust property would constitute a significant diminution in the amount of land or water locally available upon which the public could exercise its trust rights should be considered.
Hannig138 concedes that this test might be a more equitable test for resolving conflicts between public and private uses of trust lands.
2.4 Classification of the modern public trust doctrine
There appears to be no unanimity on the nature of the modern public trust doctrine. American courts have treated the doctrine largely as a public property right of access to certain public trust resources for various public purposes.139 It can thus be described as a public easement140 or servitude.141
Whilst no suggestion can be found that the traditional public trust doctrine had any relation with constitutional law,142 the codification and reception of the doctrine into state constitutions and statutes warrant a present-day classification of the doctrine as constitutional law in relevant circumstances.143 In cases in which the doctrine is applicable only as a common-law doctrine and was judicially expanded, it will be difficult to classify it under constitutional law. Although the doctrine originated from the common law, it can be viewed today as a body of legal thought incorporating both common and statutory law protecting natural resources.
3 Conclusion
The article aimed 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 merely exercise a "fiduciary trust" on behalf of their people. As it falls outside the scope of the article to compare the American public trust doctrine with the concept of "public trusteeship" as it is embodied in South African legislation (a comparison that could be made only after more legal constructs founded on the same line of thought have been researched), I conclude with a summary of the doctrine as it finds application in American jurisprudence.
The contemporary American public trust doctrine can be characterised as a public right in property. As against a private easement or servitude, it can be described as a public servitude. Through the application of the doctrine, certain rights vest in the citizens of America as an entity, but American citizens can demand the realisation and protection of that interest as individuals. The government is compelled to deal with the objects that are regarded as public trust property in such a way that the public's right in that property is promoted and enhanced. Simultaneously, the government must refrain from actions that would negate the interest of the public in the trust property. The government's ability to deal freely with public trust property is thus definitely curtailed by the purpose of the public trust and restricted to custodianship or guardianship of the relevant property.
Individuals' rights in public trust property are likewise curtailed. No individual can attain unrestricted private title in public trust property, as the property is bound by the public easement. Individuals must, however, ensure that their rights in public trust property are realised. As the judiciary is the watchdog of the public trust with the power to annihilate government actions that go against the aim and purpose of the public trust, individuals must not refrain from insisting on protection in instances in which the need arises.
The concept of a "public trust" should not be confused with the concept of "public interest". "Public interest" is a broad concept and basically every action that has public value or generates economic gain is in the public interest. The term "public trust" refers to matters of common property that are held in trust by the state for the use and benefit of present and future generations of citizens. There is a nuanced difference between protecting public uses and "ensuring that environmental resources are beneficially used in the public interest". As indicated above, property subject to the trust may not be used for any and every public purpose. The property must be held available for use by the public, but it must be maintained for certain types of uses, which include traditional uses or uses that are in some sense related to or compatible with the natural uses peculiar to that resource.
The public trust doctrine is a common-law doctrine of American jurisprudence. Its field of application can be and has been expanded according to public need. The expansion of both the geographical scope of the doctrine and the range of interests protected by the doctrine is a result of the recognition that "public need" dictates the direction of growth, as in any other field of the law. The possibility of conflict generated by the expansion of the doctrine is inevitable. In a society in which the divide between rich and poor is constantly growing, in an overpopulated world in which the most needy have already lost the race for the use of resources, the public trust doctrine is a mechanism that guards against the exploitation of a country's natural treasures.

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