From the pages of
Sublette Examiner
Volume 3, Number 10 - June 5, 2003
brought to you online by Pinedale Online

The public trust
Part one of a three-part series
by Cat Urbigkit

Later this month, the Wyoming Game and Fish Commission is slated to decide whether WG&F Department publications will refer to and advocate the use of the public trust doctrine. The issue came about as a result of the commission's review of the department's instream flow five-year plan, which advocated a need to change "the legal component" of Wyoming's instream-flow program through the use of the public trust doctrine.

Paul Bray of the Government Law Center at Albany Law School has written extensively about PTD. His view is that the doctrine "may prove useful as the nations of the world develop their own ecologically based real property law."

Although PTD has traditionally been applied to protect access for navigation, commerce, recreation and fishing on public waters, Bray wrote: "A change in the application of PTD from protecting these uses to preventing overexploitation of the environment is occurring. The environment is viewed as encompassing natural, scenic, historic, aesthetic and even economic values."

Originally affecting only navigable waters, courts across the nation have greatly expanded the variety of resources the doctrine addresses.

For example, New York State Court declared that the "entire ecological system supporting the waterways is an integral part of them and must necessarily be included within the purview of the trust."

An Iowa court said the doctrine has been used to address "the dry sand area of a beach, rural parklands, a historic battlefield, wildlife, archeological remains, and even a downtown area."

The infringement on private property rights has become a major component of PTD debate, as has the seemingly constant expansion of the doctrine. To some, this expansion appears to be judicial mischief.

In "Putting the public trust doctrine to work," published in 1997, it was noted that PTD "provides that the public trust lands, waters and living resources in a state are held by the state in trust for the benefit of all the people, and establishes the right of the public to fully enjoy public trust lands, waters and living resources for a wide variety of recognized public uses. ... It applies whether the trust lands are publicly or privately owned."

"In the United States, each state has the authority and responsibility for applying the public trust doctrine to trust lands and waters 'within its borders according to its own views of justice and policy,' " the book explained, adding that the doctrine survives in the United States as "one of the most important and far-reaching doctrines of American property law."

The book also states that in public trust cases, the dominant title is the jus publicum, which is the bundle of rights held by the public, while the subservient title is the jus privatum, or the private proprietary rights in the use and possession of the trust resource.

University of Michigan law professor Joseph Sax wrote a law review article about the use of PTD that explained increased public concerns about environmental quality has become apparent in the nation's courtrooms, at least partly due to inconsistencies in both legislative response and administrative action to address these concerns.

"But even more important, that inconsistency has promoted a search for some broad legal approach which would make the opportunity to obtain effective judicial intervention more likely," Sax wrote. "Of all the concepts known to American law, only the public trust doctrine seems to have the breadth and substantive content which might make it useful as a tool of general approach to resource management problems."

According to Sax, "Confusion has arisen from the failure of many courts to distinguish between the government's general obligation to act for the public benefit, and the special, and more demanding, obligation which it may have as a trustee of certain public resources."

As long ago as 1892, the U.S. Supreme Court articulated a principle, according to Sax, that: "When a state holds a resource which is available for the free use of the general public, a court will look with considerable skepticism upon any governmental conduct which is calculated either to reallocate that resource to more restricted uses or to subject public uses to the self-interest of private parties."

This high court decision, known as the Illinois Central case, set an important precedent, posing a model for courts to look with skepticism at programs that infringe broad public uses in favor of narrower ones. The government shoulders a heavy burden of justification when the results are brought into question.

Sax wrote, "There must be some means by which a court can keep a check on legislative grants of public lands while ensuring that historical uses may be modified to accommodate contemporary public needs and that the power to make such modifications resides in a branch of government which is responsive to public demands."

Sax's article suggested courts use "ingenuity" and "judicial cleverness" in interpreting public trust responsibilities. This technique can be used, Sax wrote, as a way the court "may mend perceived imperfections in the legislative and administrative process."

Sax said PTD "is, more than anything else, a medium for democratization."

Defenders of Wildlife, one of the nation's largest environmental organizations, sees the public trust doctrine as one method of achieving biological diversity.

A DOW publication called "Saving Biodiversity: A status report on state laws, policies and programs," notes, "[J]udges in each state may interpret the doctrine as they see fit, unencumbered by legislated law and presumably motivated by changing ideas of what constitutes the public need and public policy. For those concerned about the accelerating loss of biodiversity, the hope is that state judges will interpret the doctrine as broadly as possible to conserve and maintain the benefits of the state's living resources for current and future state citizens."

Lewis and Clark College adjunct professor of law Gary Meyers wrote an essay in "Environmental Law" advocating "reinvigorating and expanding the public trust doctrine so that its protection is extended to wildlife, and by necessity, to the habitat it depends on."

The U.S. National Project on the Public Trust Doctrine reported that the doctrine should be used "to encourage comprehensive management over lands, waters and resources within the area, and thus avoid the limitations inherent in ad hoc permitting decisions."

Sax wrote, "Perhaps the most striking impression produced by a review of public trust cases in various jurisdictions is the sense of openness which the law provides; there is generally support for whatever decision a court might wish to adopt."

Sax's goal was to "make the rather simple point that courts have an important and fruitful role to play in helping to promote rational management of our natural resources. Courts have been both misunderstood and underrated as a resource for dealing with resources."

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