Unpacking the public trust doctrine: a journey into foreign territory



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res communes could well be alienated, should the beneficial interest of the public be protected. In my opinion, this is a flaw in his argument, as res omnium communes clearly indicates "things common to all". Use could be restricted, but res communes could not be permanently alienated. Hannig 1983 Santa Clara L Rev 211 supports Coquillette's view that conceptual support for the public trust doctrine is to be found in a property notion.

57Sax 1970 Mich L Rev 484; Casey 1984 Nat Resources J 812. In the Arnold case 78, New Jersey's Chief Justice stated that a grant purporting to divest citizens of their common rights in navigable rivers would be a grievance "which never could be long borne by a free people".

58Sax 1970 Mich L Rev 484.

59Sax 1970 Mich L Rev 485.

60Von Tigerstrom 1998 J Env L & P 382.

61This is illustrated by the remark of the court in the Illinois Central case 436, that the doctrine is founded upon the necessity of preserving the use of navigable waters from private interruption and encroachment to the public. All three underlying theories find application in this reasoning.

62Olson 1975 Det CLR 178.

63Illinois Central case.

64Olson 1975 Det CLR 179.

65Illinois Central case 454.

66Olson 1975 Det CLR 177 specifically refers to the protection given to natural resources by legislation.

67Olson 1975 Det CLR 179–183. Wilkinson 1989 Envtl L 427 is one of many commentators who indicate that different courts have extended the public trust doctrine to many kinds of resources.

68Borough of Neptune City v Borough of Avon-by-the-Sea 61 NJ 296 (1972) 309.

69A more subtle approach than Cohen's proposition 1970 ULR was followed in expanding the doctrine.

70Olson 1975 Det CLR 182. Dunphy 1976 Marq L Rev 794 indicates that even the definition of "navigability" has been proved sufficiently flexible to accommodate the changing needs of the public and contributed to the expansion of the application of the public trust doctrine. Stevens 1980 UC Davis LR 196 supports this assertion and Hannig 1983 Santa Clara L Rev indicates that the redefining of "navigable water" was one of the methods used to expand the public trust doctrine. Manzanetti 1984 Pac LJ 1309 also refers to the fact that the development indicated that the uses that the state must protect are defined by the "ebb and flow" of "changing public needs".

71Olson 1975 Det CLR 183. The truth of his assertion is proved by continued expansion of the doctrine, despite criticism that it had outlived its purpose. Bader 1994 Hamline LR 53 states that the public trust doctrine is not a "fixed or static" concept, but rather that it is dynamic, meeting the changing conditions and needs of the public it was created to benefit. Turnipseed et al 2009 ELQ 12 confirm that the doctrine has "steadily evolved to fit the perceived needs of society".

72Moore v Sanborne 2 Mich 519 (1853) 525 as cited by Stevens 1980 UC Davis LR 221. Walston 1982 Santa Clara L Rev 81 explains that the function of the public trust doctrine is to ensure that the people retain a sovereign interest in their water resources so that they can adapt their resources to changing public needs. This view is in conformity with the development that has taken place.

73Caminiti v Boyle 107 Wn 2d 662 (1987) 669; Washington State Geoduck Harvest Association v Washington State Department of Natural Resources 124 Wn App 441 (2004) 448. The doctrine has been applied in New Jersey to ensure access by the public to areas of the beach – The Times of Trenton Publishing Corporation v Lafayette Yard Community Development Corporation 183 NJ 519 (2005) 532. The Supreme Court of New York, New York County, held on 1 September 2005 in Landmark West!, Board of Managers of the Parc Vendome Condominium v City of New York and New York City Economic Development Corporation 2005 NY Slip Op 25362 Part v that the public trust doctrine has no application with reference to buildings, as the doctrine historically applied to natural resources.

74Stevens 1980 UC Davis LR 221, 222. Walston 1982 Santa Clara L Rev 66 supports this view and states that the trust is a dynamic rather than a static concept and appears destined to expand with the development and recognition of new public uses. Hannig 1983 Santa Clara L Rev 226; Manzanetti 1984 Pac LJ 1308. Lazarus 1986 Iowa L Rev 652 states that because of the flexibility of the doctrine, "highways, driving ranges and shopping malls have passed the public muster". Bader 1992 BC Envtl Aff L Rev 755 attributes the extension of the doctrine by the courts to the courts beginning to realise the importance of certain natural resources in sustaining the human species. Thereby, the anthropo-solipsistic nature of the doctrine was recognised. See also Pearson 2004 J Land Resources & Envtl L 174 and Connolly 2009 BC Envtl Aff L Rev 148, 150.

75It is interesting to note that the Supreme Court of Michigan confirmed in 2005 in the Glass case 674 and 698 that the right to walk along a sea or lakeshore is inherent in the exercise of traditionally protected public rights of fishing, hunting and navigation. This principle was also confirmed in Raleigh Avenue Beach Association v Atlantis Beach Club, Inc 185 NJ 40 (2005) 46–54, in which the court stated: "It follows then, that use of the dry sand has long been a correlate to use of the ocean and is a component part of the rights associated with the public trust doctrine."

76Stevens 1980 UC Davis LR 223. Walston 1982 Santa Clara L Rev 70 also refers to this extension of the public trust corpus. The principle to be extrapolated is that navigation will not always be regarded as the most important public use. Commerce can effectively compete with it. See also Lazarus 1986 Iowa L Rev 649–650, in which it is pointed out that a historical battlefield, archaeological remains, a downtown area and all natural resources, including air and water, are regarded by different courts as being protected by the public trust doctrine.

77 658 P 2d 709 (Cal 1983) – hereafter National Audubon Society.

78Montana Coalition for Stream Access Inc v Curran 682 P 2d 163 (Mont 1984).

79Parks v Cooper 676 NW 2d 823 (SD 2004).

80Kansas ex rel Meek v Hays 785 P 2d 1356 (Kan 1990).

81Smith and Sweeney 2006 BC Envtl Aff L Rev 334.

82Reed 1986 J Env L & P 107.

83Dunning 1989 Envtl L 517.

84Dunning 1989 Envtl L 522.

85Dunning 1989 Envtl L 522; Maguire 1997 J Env L & P 11.

86Sax 1970 Mich L Rev 537; Casey 1984 Nat Resources J 812.

87Huffman 1986 Denv U L Rev 582–584.

88Contrary to Huffman, Blumm 1989 Envtl L 580 considers the doctrine "a democratising force by (1) preventing monopolisation of trust resources and (2) promoting natural resource decision making that involves and is accountable to the public".

89Huffman 1986 Denv U L Rev 584.

90Lazarus 1986 Iowa L Rev 656.

91Lazarus 1986 Iowa L Rev 656.

92Reed 1986 J Env L & P 117 and Wilkinson 1989 Envtl L 461 hold the opposite opinion of the doctrine, thinking it to be mainly federally and constitutionally imposed.

93Blumm 1989 Envtl L 574 aptly states that judges have found "this deeply conservative doctrine in state constitutions, state statutes and in the common law". The Supreme Court of Hawaii confirmed in Morimoto and Yamada v Board of Land and Natural Resources State of Hawaii 107 Haw 296 (2005) 301 that the public trust doctrine has been adopted in Hawaii as a fundamental principle of constitutional law. A XI, S 1 of the Constitution of the State of Hawai'i 1995 provides that:
For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii's natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilisation of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State. All public natural resources are held in trust by the State for the benefit of the people.
In Florida, the public trust doctrine is incorporated in the Constitution of the State of Florida, 1968, A X, Ss 11 and 16 (Government of Florida 1968 http://bit.ly/gzVerk). Stevens 1980 UC Davis LR 228, inter alia, indicates that the wording of the Constitution of the Commonwealth of Pennsylvania, 1874 (Government of Pennsylvania 1874 http://bit.ly/ig90Pd) that reads as follows was taken to state a public trust: "Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people." His view is shared by Ryan 2001 Envtl L 477. Hannig 1983 Santa Clara L Rev 215 identifies constitutional and statutory provisions as a source whereby the public trust is expanded.

94Dunphy 1976 Marq L Rev 802.

95 Constitution of the United States of America, 1787.

96Callies and Breemer 2002 Val U LR 355.

97This question is relevant in the South African mining dispensation context.

98Huffman 1989 Envtl L 554 states that whilst the doctrine was historically focused on protecting individual liberties from the abuses of monarchical power, the doctrine is today employed to limit the acquisition and exercise of private rights, inter alia, in water and water-related resources, often through the abuse of sovereign power.

99Callies and Breemer 2002 Val U LR 357.

100Glass case 698.

101Glass case 694.

102Glass case 698.

103For a thorough exposition of the US federal constitutional property clause, see Van der Walt Constitutional Property Clause 398–458.

104Penn Central Transportation Company v New York City 438 US 104 (1978) 124 – hereafter Penn Central.

105Penn Central case 130–131.

106Penn Central case 124.

107505 US 1003 (1992) – hereafter Lucas.

108Lucas case 1027.

109According to Manzanetti 1984 Pac LJ 1291, this power to reconsider vested water rights was a new facet to the public trust doctrine. However, Casey 1984 Nat Resources J 815 states that the principles set forth in the Illinois Central case decision illustrated that the power of the state in administering the trust resource extended to revocation of previously granted rights and the "enforcement of the trust against resources long thought free of the trust".

110National Audubon Society case 558–559.

111National Audubon Society case 447. Arnold and Jewel 2008 Hastings W-Nw J Envt'l L & Pol'y 1190.

112National Audubon Society case 440.

113747 P 2d 1062 (Wash 1987) – hereafter Orion Corporation.

114Orion Corporation case 1081–1082.

1159 P 3d 409 (Hawa 2000) – hereafter Water Use Permit Applications.

116Water Use Permit Applications case 494.

117Manzanetti 1984 Pac LJ 1305. This view is shared by Bader 1994 Hamline LR 54, who contends that explicit notice of the public trust interest in land is not necessary and is assumed to run with trust resources from the moment of statehood. His view does not explain the inclusion of non-traditional resources within the scope of the doctrine. See also Grant 1995 Ariz St LJ 427.

118Manzanetti 1984 Pac LJ 1306 explains that according to the theory of pre-existing title, the state has always had a title in the property. Property holders should therefore have known that the state had pre-existing title when they acquired their property; and when the state acts to reassert title to the detriment of the property holder, compensation is not required. The need for compensation under the Fifth Amendment is obviated by the prior knowledge of the pre-existing title. The reason for this contention is that should the property holder have had notice of the pre-existing title in the state, the reassertion of the rights in the title would have caused neither a change in the law, nor a change in the structural rules under which the property holder was to make choices regarding expectations in his property rights. Should, however, announcement by the state that a pre-existing title clouded the property holder's title constitute "a sudden change in state law, unpredicted in terms of relevant precedents", government action pursuant to that announcement would constitute a deprivation of property for which compensation is required. Lazarus 1986 Iowa L Rev 673 supports Manzanetti's argument that parties who engage in economic activities in an area that they know is of public concern and regulated by government are on notice that the government may regulate in the future. For that reason, they cannot complain when their investments are adversely affected by subsequent regulations.

119Manzanetti 1984 Pac LJ 1307. Grant 1995 Ariz St LJ 427 confirms that an owner is entitled to compensation if the government action "goes beyond what the relevant background principles would dictate".

120Manzanetti 1984 Pac LJ 1296. See also Blumm 1989 Envtl L 586. Neither Manzanetti nor Blumm refers to the majority opinion of Field J in the Illinois Central case 455, in which he expressed the opinion that in a case in which a state resumes control over previously granted trust resources, the state "ought to pay" for any "expenses incurred in improvements made under such a grant". Rasband 1998 U Colo L Rev 333 argues that this remark indicates that although the state exercise of a public easement might not require just compensation under the Fifth and Fourteenth Amendments, it may merit some compensation as a matter of equity. He relies on "mistaken improver law", a concept dealt with in South Africa under enrichment law, and argues that equitable compensation should be regarded as being an essential element of the public trust doctrine.

121Manzanetti 1984 Pac LJ 1310. He is supported by Huffman 1989 Envtl L 559, who contends that by expanding the scope of public trust rights, the state will expand its ability to regulate beyond the constraints of the Constitution and evade the taking limits on police power.

122481–485.

123Dissenting judges argued that this finding broke a chain of title of more than 150 years. They thought that settled expectations of landowners would be disrupted.

124Lazarus 1986 Iowa L Rev 655.

125Searle 1990 SC L Rev 916.

126Reed 1986 J Env L & P 118.

127Reed 1986 J Env L & P 119.

128Dunphy 1976 Marq L Rev 796.

129Dunphy 1976 Marq L Rev 797; Blumm 1989 Envtl L 585.

130Dunphy 1976 Marq L Rev 798. Stevens 1980 UC Davis LR 217 supports this contention and states that the courts would not be bound by patently inaccurate declarations of public purpose for legislation having as its goal the destruction of public waters for private profit. This role suits the judiciary well, for as Pearson 2004 J Land Resources & Envtl L 173 remarks: "While the doctrine can originate in constitutional or statutory law, typically its genesis is judicial decision". See also Turnipseed et al 2009 ELQ 56.

131Olson 1975 Det CLR 164.

132Lazarus 1986 Iowa L Rev 655 states that developments in the public trust arena in the early 1980s were confined to suits in which the private citizen was the plaintiff asserting the doctrine and the government was the unwilling defendant resisting the trust's application. Government argued that the public trust doctrine expands sovereign authority over natural resources covered by the doctrine, limiting the nature of valid private property rights in those resources whilst rendering permissible governmental measures that impinge on those private interests.

133Bader 1994 Hamline LR 54.

134Huffman 1989 Envtl L 558.

135With reference to the allocation of water rights, Walston 1982 Santa Clara L Rev 64, 85 states that the public trust doctrine enables the state to allocate and, if necessary, reallocate its water supply for the protection of important public interests.

136Olson 1975 Det CLR 184; Williams 2002 SC Envtl LJ 42.

137Hannig 1983 Santa Clara L Rev 232–236.

138Hannig 1983 Santa Clara L Rev 232–236.

139Blumm 1989 Envtl L 581; Dunning 1989 Envtl L 519. Scott 1998 Fordham Envtl LJ 15 describes the basic doctrine in its simplest sense as a principle of sovereignty.

140Blumm 1989 Envtl L 580.

141Wilkinson 1989 Envtl L 450; Huffman 1989 Envtl L 527; Dunning 1989 Envtl L 515.

142Huffman 1989 Envtl L 545–555.

143See Government of Florida 1968 http://bit.ly/gzVerk and Government of Pennsylvania 1874 http://bit.ly/ig90Pd.



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