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
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
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
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'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
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
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
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
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
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
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
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 )