Unpacking the public trust doctrine: a journey into foreign territory



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List of abbreviations
AJS American Journal of Sociology

Alb L Rev Albany Law Review

Ariz St LJ Arizona State Law Journal

BC Envtl Aff L Rev Boston College Environmental Affairs Law Review

Cornell L Rev Cornell Law Review

Denv U L Rev Denver University Law Review

Det CLR Detroit College of Law Review

ELQ Ecology Law Quarterly

Envtl L Environmental Law

Fordham Envtl LJ Fordham Environmental Law Journal

Hamline LR Hamline Law Review

Hastings W-Nw J Envt'l L & Pol'y Hastings West-Northwest Journal of Environmental Law and Policy

Iowa L Rev Iowa Law Review

J Env L & P Journal of Environmental Law and Practice

J Land Resources & Envtl L Journal of Land, Resources and Environmental Law

Marq L Rev Marquette Law Review

Mich L Rev Michigan Law Review

Nat Resources J Natural Resources Journal

NYU Envtl LJ New York University Environmental Law Journal

Pac LJ Pacific Law Journal

Santa Clara L Rev Santa Clara Law Review

SC Envtl LJ South Carolina Environmental Law Journal

SC L Rev South Carolina Law Review

UC Davis LR UC Davis Law Review

U Chi L Rev University of Chicago Law Review

UCLA LR UCLA Law Review

U Colo L Rev University of Colorado Law Review

ULR Utah Law Review

Val U LR Valparaiso University Law Review

Wash LR Washington Law Review


* Elmarie van der Schyff. BA LLB LLM LLD (NWU). Associate Professor in Law, North-West University, South Africa (Elmarie.VanderSchyff@nwu.ac.za). Soli Deo gratia. A note of gratitude to all my colleagues who were burdened with reading the first drafts of this work and, in particular, Profs Gerrit Pienaar, Andre van der Walt and Hanri Mostert, for their valuable comments.

1 of 1998.

2 of 1998.

3 of 2002.

4 of 2004.

5Chp 11, S 139 Locke 1690 http://bit.ly/D1Fvi. See Dunn "The concept of trust in the politics of John Locke" in this regard.

6Pound Introduction 111.

7Marx Capital 911. This passage is frequently quoted. See, inter alia, Foster 2006 AJS 385; Foster 2002 http://bit.ly/huO54l.

8Brady 1990 BC Envtl Aff L Rev 633.

9Van der Walt Constitutional Property Clause 130.

10BVerfGE 58, 300 (339) July 1981 1 BvL 77/78 (Naßauskiesung case).

11Hichange Investments (Pty) Ltd v Cape Produce Company (Pty) Ltd t/a Pelts Products 2004 1 All SA 636 (E) 658. See also De Beers Consolidated Mines Ltd v Ataqua Mining (Pty) Ltd Case 3215/06 (unreported).

12Wilkinson 1989 Envtl L 425; Kearney and Merrill 2004 U Chi L Rev 800.

13Brooks et al Law and Ecology 182; Blumm 1989 Envtl L 573; Scott 1998 Fordham Envtl LJ 3.

14Lazarus 1986 Iowa L Rev 656–691; Huffman 1986 Denv U L Rev 583, who describes the public trust doctrine as a "tool for political losers or for those seeking to avoid the costs of becoming political winners".

15Scott 1998 Fordham Envtl LJ 4; Kearney and Merrill 2004 U Chi L Rev 800.

16Stevens 1980 UC Davis LR 200.

17Fernandez 1998 Alb L Rev 627 states that the Roman concepts of "common property" and "public rights" were incorporated by the English into both the Magna Charta and the English common law. Coquillette 1979 Cornell L Rev 800 names the public trust doctrine the res communes doctrine. See also Scott 1998 Fordham Envtl LJ 24–36 and Sax 1980 UC Davis LR 185.

18Stevens 1980 UC Davis LR 195,197–198.

19Martin v Waddell's Lessee 41 US 367 (Pet) (1842) – hereafter Martin; Illinois Central Railroad Company v Illinois 146 US 387 (1892) – hereafter Illinois Central. Cognisance must be taken of the fact that Arnold v Mundy 6 NJL 1 (1821) – hereafter Arnold – is another leading case in public trust law. In this case, an American court formulated the traditional public trust doctrine. In the 1988 Supreme Court decision of Phillips Petroleum Company v Mississippi 484 US 469 (1988) 473 (hereafter Phillips Petroleum Company), the court expressed the view that Shively v Bowlby 152 US 1 (1894) – hereafter Shively is in fact the seminal case in American public trust jurisprudence. The Shively case rested on prior decisions of the US Supreme Court, eg the Illinois Central case and Knight v United States Land Association 142 US 161 (1891) – hereafter Knight.

Different writers have defined the public trust doctrine subjectively, but the essence of the doctrine boils down to the protection of certain public uses. Casey 1984 Nat Resources J 812 defines the public trust doctrine as the right of the individual state to regulate and control its navigable waters and the lands underlying them on behalf of its citizens' interests in certain public uses, namely navigation, commerce and fisheries. Sax 1980 UC Davis LR 188–189 describes the central idea of the public trust doctrine as:
[P]reventing the destabilising disappointment of expectations held in common but without formal recognition such as title. The function of the public trust as a legal doctrine is to protect such public expectations against destabilising changes, just as we protect conventional private property from such changes.
According to Lazarus 1986 Iowa L Rev 633, "the historical function of the public trust doctrine has been to provide a public property basis for resisting the exercise of private property rights in natural resources deemed contrary to the public interest". Searle 1990 SC L Rev 898 concisely describes the concept as "state ownership of property held exclusively for the benefit of and use by the general public". Rasband 1998 U Colo L Rev 331 holds that the doctrine described the state's fiduciary responsibilities with respect to land under navigable water and certain associated resources. See also Williams 2002 SC Envtl LJ 31.

20Glass v Goeckel 473 Mich 667 (2005) 673 – hereafter Glass.

21Shively case.

22Sax 1970 Mich L Rev 476.

23It is stated in the Knight case 183 that it is the settled rule of law in this court that absolute property in, and dominium and sovereignty over, the soils under the tidewaters in the original states were reserved to the several states, and that the new states since admitted have the same rights, sovereignty and jurisdiction in that behalf as the original states possess within their respective borders.
In the Shively case 11–12, Justice Gray explained the common law perspective on the nature of the sovereign's claim when dealing with navigable waters and the sea:
Such waters, and the land which they cover, either at all times, or at least when the tide is in, are incapable of ordinary and private occupation, cultivation, and improvement; and their natural and primary uses are public in their nature … Therefore the title, jus privatum, in such lands … belongs to the king, as the sovereign; and the dominium thereof, jus publicum, is vested in him, as the representative of the nation for the public benefit.
See also the Illinois Central case 452.

24The "public common of piscary" is included in the dominium of navigable water. It is stated in the Illinois Central case 436 that the English notion of dominium and ownership by the crown of land within the realm under tidewaters were equated with the requirement of navigability.

25In the Illinois Central case, the court confirmed the principle stated in The Propeller Genesee Chief v Fitzhugh 12 How 443 (1852) 457 and Barney v City of Keokuk 94 US 324 (1877) 338, extending the doctrine to waters that were non-tidal but navigable.

26This statement is in principle supported in California Earth Corps v California State Lands Commission 27 Cal Rptr 3d 476 (2005) 480, in which the court stated in 2005: "Though the rule applies generally to all navigable waters, it had its first application to tidelands."

27Illinois Central case 452.

28Sax 1970 Mich L Rev 476.

29Martin case 411; Shively case 10.

30Sax 1970 Mich L Rev 487. This principle is confirmed in a 2005 decision by the Supreme Court of Michigan in the Glass case 679.

31Glass case 673.

32Casey 1984 Nat Resources J 814.

33This summary is a condensation of information extracted from all the sources referred to in the footnotes above.

34Stevens 1980 UC Davis LR 195, 197–198; Huffman 1989 Envtl L 544.

35Bader 1992 BC Envtl Aff L Rev 751 holds the opinion that the English adopted the Roman principle of res omnium communes but replaced the notion of "common ownership" with that of "state ownership".

36Bracton On the Laws and Customs of England 39–40 as cited by Stevens 1980 UC Davis LR 197.

37Huffman 1989 Envtl L 534.

38Huffman 1989 Envtl L 561.

39Huffman 1989 Envtl L 535.

40Huffman 1989 Envtl L 535, 538 points out that three parties are needed to create a trust in American law: the creator or settler of the trust, the trustee and the beneficiary. The purposes of the creator define the relationship between the parties holding legal and equitable title. In attempting to determine which parties are the creator, trustee and beneficiary of the alleged trust of the public trust doctrine, Huffman points out that the public can be identified as the beneficiary and the state as the trustee. However, a single entity cannot be both the trustee and beneficiary of a trust:



The democratic state is the agent of the people. It acts at the behest of the people and, therefore, for the benefit of the people. The people cannot act as fiduciary, through the state, for themselves.
The question as to the identity of the creator can also not be answered.

41Huffman 1989 Envtl L 527.

42Huffman 1989 Envtl L 550.

43Coquillette 1979 Cornell L Rev 811–813; Hannig 1983 Santa Clara L Rev 211.

44Stevens 1980 UC Davis LR 199.

45Takacs 2008 NYU Envtl LJ 711.

46In the Shively case 20 the state’s rights in navigable water and the soil beneath it is confirmed..

47Martin case 411; Shively case 10.

48As a Professor of Law, first at Michigan Law School then at California, Berkeley, Sax completed meticulous research in the field of Public Trust Law. His seminal work, The Public Trust Doctrine in Natural Resource Law: Effective in Judicial Intervention, published in 1970, sparked the usage and development of the public trust doctrine in American environmental law.

49Olson 1975 Det CLR 162 refers to Sax's seminal work as the leading treatment on the public trust doctrine and emphasises that Sax's article is mandatory reading for a comprehensive understanding of the public trust doctrine. Huffman 1986 Denv U L Rev 566 states: "the rebirth and dramatic growth of the public trust doctrine is in no small part the product of a classic article on the subject by Jonathan Sax". Dunning 1989 Envtl L 524 voices a more balanced opinion in stating that Prof Sax's work drew the attention of environmental law students to the public doctrine during a period of heightened public interest in environmental protection, and states that interest and attention have remained high amongst environmental law scholars. Brady 1990 BC Envtl Aff L Rev 622. Bader 1994 Hamline LR 52 contends that Sax resuscitated the public trust doctrine and applied it to modern environmental problems. Grant 1995 Ariz St LJ 443 describes Sax as "the nation's leading public trust doctrine scholar". See Araiza 1997 UCLA LR 385, 397 and Kearney and Merrill 2004 U Chi L Rev 806.

50Sax 1970 Mich L Rev 473.

51Sax 1970 Mich L Rev 474 – Sax considered the doctrine because it is apparent from earlier case law, eg City of Milwaukee v State 193 Wis 423 (1927) 451–452, that the doctrine existed specifically with reference to navigable water. Sax merely intended to indicate that the doctrine could be applied to other environmental issues. Searle 1990 SC L Rev 897 indicates that the doctrine was "re-discovered" in response to the twentieth century's environmental crisis.

52Sax 1970 Mich L Rev 474. Sax was not alone in this search. Another article published on the public trust doctrine in 1970 indicates the urgency of finding a constructive tool to prevent environmental degradation. Cohen 1970 ULR 388–394 states: "In order that the great increase of public concern for our environment may be made an effective force in protecting the environment, a viable legal theory which can be used by private litigants is urgently needed."

53Sax 1970 Mich L Rev 474.

54Sax 1970 Mich L Rev 474.

55 Whilst Sax initially chose to describe the doctrine as not substantive and rejected the property rationale as too inflexible – Sax 1970 Mich L Rev 478–483 – he later described the doctrine's operation in terms of property rights and did not refrain from attaching substantive standards to judicial application of the doctrine – Sax 1980 UC Davis LR 185, 189–193.

56Sax 1970 Mich L Rev 484. Sax does not support the idea that the public should be viewed as a property holder in the same sense that an individual can be the owner of a specific tract of land. His view is explained in Sax 1970 Mich L Rev 478–483. Coquillette 1979 Cornell L Rev 811–813 holds a different opinion and states that the true origins of the public trust doctrine lie in a property doctrine, namely the res communes property doctrine. He declines to interpret the public trust doctrine as a principle of administrative law and states that his approach would ensure greater protection for the public. Coquillette states that



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