The Public Trust Doctrine: Its Relevance Today

Paul M. Bray

[A speech delivered at the conference of the Council of Georgist Organizations, Albany, New York; 13 July, 2010. Reprinted from GroundSwell, September-October, 2010]

I have not been a Georgist but a number of my passions like parks including the city and region as a park (a vehicle for protection of natural and cultural resources coupled with beneficial enjoyment of the public) and public trust doctrine advance the Georgist notion of a universal right for all to share in the gifts and opportunities provided by nature.

While not an economist nor one who likes to address issues of taxation (other than simple notions of progressivity and that there is no free lunch for society so we have to pay taxes for the values we get from society), I do appreciate the benefit of land value taxation providing a "green tax shift" that promotes conservation of natural resources and encourages sustainable development.

Before talking about the Public Trust Doctrine, I want to mention a recent article I wrote about FDR and his concept of "Liberty of the Community". It is timely because we are again facing the challenges articulated in the book Man and Nature by George Perkins Marsh, this time it is global warming. In 1862 the issue was deforestation.

In 1912 a young NY State Senator with a future, FDR, gave a speech in Troy where he talked about liberty of the individual and the need for a robust liberty of the community.

FDR: "There are many persons left today that can see no reason why if a man owns lands he should not be permitted to do as he likes with it. The most striking example of what happens in such a case, that I know of, was a picture shown me by Mr. Gifford Pinchot last week. It was a photograph of a walled city in northern China. Four or five hundred years ago this City had been the center of the populous and prosperous district. A district whose mountains and ridges were covered with significant trees. Its streams flowing without interruption and its crops in the valleys prospering. It was known as one of the most prosperous provinces in China, both as a lumber exporting center and as an agricultural community.

Today the picture shows the walled town, almost as it stood 500 years ago. There is not a human being within the walls. There are but few human beings in the whole region. Rows upon rows of bare ridges and mountains stretch back from the City without a vestige of tree life, without a vestige of flowing streams and with the bare rocks reflecting the glare of the sun. Below in the plains the little soil which remains is parched and unable to yield more than a tiny fraction of its former crops. This is the best example I know of the liberty of the individual without anything further."

"As a whole", Roosevelt using New York State as an example, "we are beginning to realize that it is necessary to the health and happiness of the whole people of the State that individuals and lumber companies should not go into the wooded areas like the Adirondacks and Catskills and cut them off root and branch for the benefit of their own pocket."

Actually, NYS realized what FDR was talking about in 1885 with the forest preserve law; 1892 with creation of the Adirondack Park and, finally, when those 2 actions failed -- adoption of the forever wild clause in the State Constitution which has worked for more than a century.

In my article I proposed the following constitutional amendment:

Sec. 18. Liberty of the community; emission limit on greenhouse gas. The people of the state in order to maintain their health and welfare have a common interest and moral obligation to cooperatively manage nature wisely.

Emission of carbon dioxide directly or indirectly as a result of human activity shall be prohibited from increasing and shall be substantially and expeditiously reduced, except as a result of extraordinary emergency. Implementation of these provisions may be compelled by a suit of any citizen.

Public Trust Doctrine

David Slade - Public Trust in Motion - protecting the environment.

As discussed in The Public Trust Doctrine In Motion, the doctrine has evolved to become a central body of environmental law. It has been applied by the courts to ground-water, minimum in-stream flows, water quality protection, habitat preservation, western water rights (Chapter VI), fisheries, even waterway speed limits.

Here are a few excerpts from The Public Trust Doctrine In Motion:

"The Public Trust Doctrine is by no means a panacea. But, with the Doctrine's inherent flexibility to evolve as the mores and needs of society evolve, as our scientific understanding advances, and as we recognize more every day that our natural resources are suffering under the weight of modern society, the Doctrine's essential place in resource stewardship is abundantly clear.

The Public Trust Doctrine has evolved in our own time from an ancient code, designed to keep the seas, shorelands and fish open to the public, to a modern doctrine of environmental stewardship. Although it remains pegged to 'navigable' waters in most states, it is clear that the principles inherent in the Public Trust Doctrine can be, perhaps should be, applied to all publicly-held resources. After all, this is what the citizens of Colorado were hoping to accomplish with their 2007 ballot initiative that led to Kemper v. Hamilton. It is a doctrine in motion."

"We are not just a country with serious deterioration of our waters and natural resources jeopardizing the future health and welfare of our children. We are a tiny planet with very serious 'carrying capacity' problems, and are in dire need now of sound and wise environmental stewardship. It is not only that our seas are rising, it is that our seas are depleted, in some cases dying. The fisheries of the world's oceans have been reduced nearly 90%. Much of the coral reefs worldwide are sick, many dying, as in Florida. Tropical forests are being clear cut and burnt at an alarming rate. While CO2 increases in our atmosphere causing global warming, we are destroying the very machinery designed to take CO2 out of the atmosphere -- our forests. We hold all of the public resources -- air, rivers, lakes, timber, land, seas, oceans, wildlife -- as trustees for our children. If we deplete these trust assets today, as we are voraciously doing, our children, our beneficiaries, will inherit a far less inhabitable planet."

"Hopefully each State's modern recognition of its Trust Power - an inherent attribute of its sovereignty - will serve to better protect all public resources, whether they be water, land, air, forest or wildlife. This is especially important because the Public Trust Doctrine is state, not federal law."

As the Nevada Supreme Court so eloquently stated:

"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. Our dwindling natural resources deserve no less."

Our children and future generations deserve no less.

Hawaii:

Hawaii's Public Trust Doctrine

The following is a condensation of the opening speech given by James T. Paul, Paul, Johnson, Park & Niles, at the first statewide Hawai`i Aquatics Conference held on June 11-12, 1999 in the ahupua`a of Kaneohe.

The Public Trust Doctrine is a judicial created last ditch resort, a refusal to permit free enterprise and consumptive activity to proceed without restraint to inevitability. It sets limits and attempts to draw a line. It is principled. In the management of natural resources, it is one of the most unusual, most powerful, most useful doctrines in our legal system.

It is part of the common law of the State; it is provided for in the Hawaii Constitution; and all of us should be very glad. What follows is a shortened summary of that doctrine.

The history of the doctrine has two building blocks: Roman law and English law. It is "old law." It is one of the oldest, most deeply rooted concepts in the entire body of law. Roman Law. The Romans believed there were different kinds of property, depending upon the nature of the property. Some property belonged to the gods; some property belonged to the state; some belonged to individuals; and some was "common property." It is the concept of "common property" that is central to what we now know as the public trust doctrine.

It cannot be privately owned, and it is for common use, by everybody. What is common property? Under the Romans it included the sea, the seashore, the harbors, and all navigable rivers. The Romans believed the sea was subject to the right of free navigation, and that the sea was entirely non-proprietary in nature. The law in Hawaii and the U.S. regarding the oceans is exactly the same today. The public trust doctrine has incorporated the Roman notion of the special nature, the destiny if you will, of these properties.

English Common Law. English "common law" was judge made. Generally, when the United States was formed in 1776, we imported and adopted all English common law.

The English had a twist on the Roman notion of common property. Navigable rivers, the ocean and the seashore were held by the King for the benefit of the King's subjects. These resources were "owned" by the King, but not for his private use; he held them "in trust" for the benefit of all citizens. This is the origin of the "trust" concept in public trust doctrine.

This British idea of trusteeship was incorporated in U.S. law. There are, of course, many examples of trusts other than the public trust. Perhaps surprisingly, in the United States it is the individual states, not the federal government, that took over the role the King played in England. Therefore, it is the State of Hawaii, not the federal government, that "owns" the public trust resources in Hawaii.

What does the State of Hawai`i own? What is the property that is part of the public trust? The original answer was to look to the law of England in 1776: navigable waters, the ebb and flow of tidal waters, and the land beneath them. Therefore, at the moment of independence of the original 13 states, and thereafter at moment of state hood for the other 37 states, those public trust resources became the property of each state to be held in trust for the public.

As did every other state when formed, when Hawaii became a state in 1959, it instantly owned in trust: the ocean from the high tide line three miles out to sea; all navigable waters; all tidal waters, whether navigable or not; and all land beneath those waters. What is "navigable water"? There is a very specific national definition: a body of water is "navigable" if in its natural condition the water can be used for water-born commerce. The U.S. Supreme Court has expanded that definition so that today all navigable waters and all tidal waters, whether navigable or not, and the lands beneath them, are subject to the public trust.

In England, the activities protected by the public trust doctrine were navigation and fisheries. In the U.S., these purposes have been expanded to include not only navigation and fisheries, but promotion of commerce as well. Court decisions in various states have also expanded the physical scope of the trust property to include non-navigable tributaries that affect public trust property, as well as wetlands and dry sand areas. For example, if uses of tributaries adversely affect public trust property, they may be regulated. One California case has suggested how the public trust doctrine will expand: "The preservation of ... lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area." Other courts have emphasized that environmental concerns are only relatively recently being sufficiently understood by science to warrant such protection.

In 1978, the Hawaii Supreme Court expanded the high tidal water line to the high wash of waves, noting that the Public Trust responsibilities of the State were so powerful that they could and did trump legislation that was inconsistent with them. That same year, the Hawaii Constitutional Convention made the Public Trust Doctrine a part of the Hawaii Constitution (Article XI, Section 1).

The Waiahole Ditch is an example of how the Public Trust doctrine applies. In 1913 construction of the Ditch began. The idea was to divert fresh water from the Kahana, Waikane and Waiahole water sheds to sugar cane fields on leeward side to supplement what became water being pumped from Pearl Harbor aqueduct. The Ditch is a complex of tunnels blasted into and through the Koolau Mountains with surface water intakes, ditches, gates and flumes that mine dike-impounded water and deliver it to the central plains.

Ground and surface waters are physically interrelated in Koolaus. Nature brilliantly created natural reservoirs within the mountains behind dikes formed by cooling lava, which fed streams, springs, and seeps. As a result, water collected from those dikes for the Ditch was at the direct expense of surface water flow in Waiahole, Waikane and Kahana streams. When the Ditch complex was completed, Waiahole stream flow was reduced by 85%.

In the Waiahole Ditch contested case hearings before the State Water Commission in 1997, the director of the Division of Aquatic Resources for the Department of Land and Natural Resources, Bill Devick, testified that prior to the diversions, Waiahole was noted for its abundant native fish population. But by 1990, only one o`opu species could be found in the stream and that was not common. Reduction in stream flows is "probably the central reason why fisheries in Kaneohe Bay have declined."

How does the public trust doctrine apply to the Waiahole Ditch? Kaneohe Bay is clearly a public trust resource and the evidence presented in the hearings showed that it was clearly affected by the diversions. Waiahole stream was clearly affected and may be both "navigable" and "tidal", in which case it is a public trust resource. But what if the streams were found not to be a traditional public trust resource? Case law of other states and the Hawaii Constitution make a compelling case that these streams -- Waiahole, Waikane, Kahana -- are subject to public trust jurisdiction. The evidence clearly demonstrates the interdependence of the ocean and these freshwater streams and the devastation of fisheries in Kaneohe Bay and in the streams caused by the diversion of water into the Ditch.

I suggest that four lessons of public trust doctrine are incumbent upon our State managers regarding aquatic resources.

First and foremost, the State is the trustee of the public trust resources. This is the highest duty under law and that duty requires the State to protect aquatic resources that are part of the Trust. This is a "categorical imperative."

Second, when someone wants to use or destroy a public trust resource, those who seek to do so must have the burden of proof to demonstrate that their use will not significantly harm the resource, or if it will harm it, the proposed new use is "consistent with the purposes of the trust."

Third, if there are alternative sources of water available, those should be used unless an extremely compelling case, "consistent with purposes of trust," can be made.

Fourth, the "Precautionary Principle" must be followed. This principle provides that where scientific evidence is preliminary and not yet considered conclusive regarding management and risk to the public trust resource, the trust resource must be protected. Lack of full scientific certainty should never be the basis for permitting the degradation or destruction of public trust resources.

The public trust doctrine provides principled guidelines to leaders who are concerned about the tension between development and preservation, between the rights of Native Hawaiian's and non-indigenous peoples. It serves as a beacon to guide us.

Hawaii must be a model not only for the United States, but for the world in terms of management of natural resources. To paraphrase a proverb credited to the Lakota Sioux: "We didn't inherit the earth from our ancestors; we borrow it from our children." The public trust doctrine is the legal embodiment of this principle.

Public Trust Doctrine Prospects:

A Court in New York State declared in dicta that, "[T]he entire ecological system supporting the waterways is an integral part of them and must necessarily be included within the purview of the trust." The Court was calling for protective measures against actions which would degrade the trust resource, the waterway. Another court in NYS upholding the LI Pine Barrens law protecting 50,000 acres of pine barrens and an acquifer also relied in part of the public trust doctrine.

A Court in the State of Iowa noted that the Public Trust Doctrine has, "emerged from the watery depths [if navigable waters] to embrace the dry sand area of a beach, rural parklands, a historic battlefield, wildlife, archeological remains, and even a downtown area."

At a 1995 conference, Professor of Law Robert Reis expressed the opinion that the enhanced data on natural and cultural resources made available through the information and analysis capabilities of Geographic Information Systems ("GIS") will greatly expand the application of the Public Trust Doctrine. He believes that the GIS data framework will facilitate the identification of interests (both of use and protection) and resources subject to the Doctrine to determine whether the State is meeting its fiduciary responsibility for trust resources.

Yet to be realized is the usefulness of PTD for area-wide management of ecosystems, watersheds, bio-regions, cultural landscapes and other protected areas.

The report of the US National Project on the Public Trust Doctrine pointed out that, "area-wide management programs may be structured, using the public trust doctrine with the state's police in tandem, to encourage comprehensive management over lands, waters and resources within the area, and thus avoid the limitations inherent in ad hoc permitting decisions."

Area-wide management using the Doctrine begins with identifying the common resources making up the Trust, the public's interest in these resources and public benefit uses for them. Uses may range from recreational and environmental to economic. The public interest forms the basis for identifying and prioritizing the use of the public trust resource. Regarding the constitutional issue of regulatory takings, local governments in the USA have become reluctant to exercise their powers to regulate land use because of US Supreme Court decisions that certain acts of regulation constituted a taking of private property for which the private owner must be compensated. Some scholars have expressed the view that the common law PTD may protect governmental regulation of land which is in furtherance of an ecologically based real property law. (Lucas case and recent Florida case.)

PTD may prove useful in providing a global legal framework for protecting and managing natural and cultural resources both within national jurisdictions and in supranational forums. It facilitates the weighing of legitimate public and private as well as conservational and development interests to create a well-balanced plan for resources protection and use.

(editor's note: Hawaii is the name of the island and the county. Hawaii is the name of the state.

Dr. Paul Bray is an attorney in private practice and also adjunct professor of law at Albany Law School.

He may be emailed at PMBRAY@aol.com )