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Back to Session 8: Protecting Natural Resources:

The Public Trust Doctrine

Introduction History American Experience State Responsibility
Trend Toward Constitutionalization Constitutionalization's Effect Natural Resource Protection Key Public Trust Cases


If you have the opportunity to do so, I would encourage you to take the online tutorial on the public trust doctrine provided by NOAA at its "Costal Service Center" website. This is an excellent introduction to the concept and its practical application. According to NOAA, 


"The Public Trust Doctrine is a common-law doctrine of property law, customized by each state, which establishes public rights in navigable waters and on their shores. The doctrine is premised on the fact that such waters and shores have been used as common areas for food, travel, and commerce since time immemorial. In some states, public rights may also be exercised on private lands. The legal interest of the public is determined by balancing public and private rights and interests."

According to law professor Allan Kanner of Duke University


"The public trust doctrine refers to the duty of sovereign states to hold and preserve certain resources including wildlife, for the benefit of its citizens. Described simply, the doctrine provides that natural resources belong to the whole public; private owners may not deprive the public of access. the state has legal authority to pursue causes of action for damages and injunctive relief against parties responsible for the pollution of natural resources. If properly used, especially by the state AG, complete relief for the state citizenry is often possible. The state's right to this relief is rooted in the common law's public trust doctrine, which provides that public lands, waters and other resources are held in trust by the government  for the benefit of its citizens."


Historically, the purpose of the public trust doctrine was to protect water resources for navigation and to commence when waterways were the principal means of transportation and a source of food. Thus, the doctrine originally evolved to allow recovery by the state in cases involving discharges into navigable waterways and tidelands.




Early Roman Law

Early English Law


The theory of the public trust is an ancient legal doctrine. It evolved from the Roman law into English common law, and was passed on to the American colonies. From there, the doctrine has evolved through a series of court decisions. In the early United States, it protected beaches and navigable waterways so that commerce could proceed unimpeded. In the last fifty years, however, both the scope and the purpose of the public trust doctrine have changed.



1. Roman Law


The ideal of the public trust dates back to early Roman law or even earlier. The public's interest in and right to certain communitarian goods and benefits were unquestioned. As stated by Justinian:

"[T]he following things are by natural law common to all -- the air, running water, the sea, and consequently the sea-shore. No one there is forbidden access to the sea-shore ... for these are not, like the sea itself, subject to the law of nations ... Again, the public use of the banks of a river, as of the river itself, is part of the law of nations; consequently every one is entitled to bring his vessel to the bank, and fasten cables to the trees growing there and use it as a resting-place for the cargo, as freely as he may navigate the river itself ... But they cannot be said to belong to any one as private property, but rather are subject to the same laws as the sea itself, with the soil or sand which lies beneath it."

Stated in other words, private property rights do not necessarily encompass the entire material world and much of the non-private world is a valuable adjunct to the world of private property. In addition to public goods, the Romans also recognized the ancient right of the sovereign to take private property for public use, or eminent domain. The Romans also provided for land use controls, such as housing and construction restrictions. Later, as more modern notions of property emerged, these goods and advantages became the property of the state held for the benefit of all. Finally, the rights-based notion grew to encompass various public responsibilities.


2. Early English Law


In the eleventh and twelfth centuries, English villages were largely feudal and had "common land for grazing livestock. The modern day conception of the common as a public right does not accurately describe the medieval commons in the medieval commons  system, either by a common law right as a freehold tenant or through usage and grants, a villager was entitled to pasture limited numbers of specific animals on the land not otherwise used by the feudal lord. The villager also had the right to cut wood, to fish, and to cut peat or turf for fuel. Even from the beginning, the use of the commons was regulated: The villages determined the type and number of animals permitted in the commons, the time of year they could be loose, how long they might graze, and when they must be removed. In addition, the English allowed the king too declare lands to be "royal forests," so that they could be managed to conserve various type of game. The "forest" was a land use classification rather than a vegetation description; it contained the mix of habitats that "forest" animals required. Forest law protected both particular places, by prohibiting habitat-altering activities, and the game species that lived there, by prohibiting hunting -- in the language of the time, forest law protected "the vert and Venison" (the vegetation and the game:

"[B]y the Lawes of the Forest, no man may cut downe his woods, nor destroy any coverts, within the forest, without the . . . license of the Lord chief Justice in Eyre of the Forest, although that the soile, wherein those woods do grow, bee a mans owne freehold. [Similarly], "Hawking and Hunting in forests are pastimes of delights and pleasure, ordayned and appointed chiefly for the recreation of Kings and Princes, and therefore they are not be used in Forests by everie common person, but onely by such, as are Earles, Barons, and Noble men of the Realme, being thereunto licensed or authorised by the King."

Forest law thus was a pervasive body of law that conserved limited game species.


Legal restrictions were not, however, limited solely to places suitable as wildlife habitats. The English government imposed a wide variety of hunting and habitat altering restrictions to conserve wildlife. In 1285, for example, Parliament enacted the Statute of Westminster II which set closed seasons on the taking of salmon. A statute enacted in 1393 strengthened these restrictions and also restricted  habitat alteration by mandating that all dams include weirs  "of reasonable wideness" to permit the fist to reach upstream spawning areas. Similarly, a 1682 statute for "better preserving the red and black game of grouse" prohibited the burning of "grig, ling, heath, furze, goss, or fern" from February through June. Lawmakers also relied upon bag limits, gear restrictions, and prohibitions on commerce to conserve and to allocate wildlife.


Although the commons system lasted for centuries, abuses of the system by the wealthier landlords were frequent. The unfortunate poor tenant was denied his remedy at law for the illegal abuses of the more powerful landowners. This ultimately led to the enclosure of most of the common land by the mid-nineteenth century. "After centuries of lapse, the doctrine that certain lands always belong to the sovereign was revived in England during the early seventeenth century to augment the declining fortunes of the Crown." In many of the debates over the extent of royal power, the public trust was raised as an issue.


The American Experience


When colonists arrived in America, they brought the doctrine from England, "although they changed its beneficiary from the monarchy to the public as a whole." As with many of the common law doctrines taken from England and modified to fit New World needs, the public trust doctrine was unclear and its application varied. Indeed, the scope of the public trust doctrine is subject to considerable debate. Many scholars acknowledge the public trust doctrine but maintain that the reach of the doctrine should be fixed. They argue that sudden shifts in the doctrine's application cannot inhere in a title because abrupt changes in the doctrine cannot be consistent with settled rules of state law. Critics of an evolving public trust doctrine are correct that sudden shifts in a doctrine argue against its characterization as a background principle. But it is inconsistent to recognize the public trust doctrine as a background principle on one hand and then limit its application to a "traditional scope" on the other. Controlled evolution is inherent in the very definition of the public trust doctrine; the fundamental purpose of the doctrine is to meet the public's changing circumstances and needs. Just as what constitutes nuisance has changed over time, so too has the public trust doctrine slowly been "molded and extended" to satisfy the needs "of the public it was created to benefit." Careful, predictable expansions of the doctrine, therefore, are not novel legislative decrees, but constitute a firmly embedded exercise of state duty.


Beginning with Massachusetts Bay in 1684, the colonies adopted restrictions on killing or capturing wildlife. By the American Revolution, every colony except Georgia had established limitations on killing deer. As the population increased, so did legislative output; gear restrictions, bag limits, and licensing requirements soon followed.


Legislatures also routinely restricted land use to conserve wildlife habitats. The most common examples were statutes requiring mill owners to install fishways in their milldams. For example, when Essex Company was incorporated by the Massachusetts legislature in 1845, it was required to provide fish passage in the dam it sought to construct on the Merrimack River.


After the American revolution, the rights of the sovereign passed to the governments of the individual colonies, not the central federal government. Originally emphasizing water-related resources, the public trust doctrine has expanded to include nearly all natural resources. Traditionally, the states managed fish and wildlife as heirs of the king's common law powers by conveyance through the colonial governments. This idea, known as the state ownership doctrine, can be traced to that amalgam of common and international law that informed the early legal developments in this country.


In Arnold v. Mundy, the court found that the State of New Jersey held the land beneath navigable waters in trust for its citizens because the king had done the same. Relying upon Blackstone's Commentaries and Vattel's The Law of Nations, the court concluded that this meant that the  oysters growing on those lands were also owned by the state in trust. In a subsequent decision, the federal circuit, again relying upon Blackstone and Vatell, held that state ownership-in-trust meant that oysters were not items of commerce and hence, a New Jersey statute prohibiting nonresidents from harvesting oysers did not violate either the Commerce Clause or the Privileges and Immunities Clause.


Meanwhile, the law regarding conflicts over land use was evolving. Such conflicts were at first easy to resolve. Usually, the common law remedy of nuisance was sufficient to settle private disputes. Initially the strength of the concept of property rights, and the Lockean notion that if a person had paid for something, it was his to do with as he wished, overrode any suspicion that the public might be better served if certain activities were prohibited or restricted. However, as American cities grew, public controls became necessary. Cities used their police power to enact ordinances restricting certain activities, such as tanneries, candle makers, or slaughterhouses with their attendant odors and refuse, to particular parts of town. Common law remedies to redress land use abuses continue to evolve.


The public trust doctrine was static throughout the nineteenth century. The shorelines and land underlying navigable rivers continued to be held in the public trust. This limited the action of private property owners on these lands to those not interfering with the public trust. The nineteenth century public trust was one of negative rights, preventing harm but imposing no affirmative duties on the landowner or state. 


Just before the turn of the century, Illinois Central Railroad Co. v. Illinois changed the nature of the public trust by establishing affirmative duties of the states with respect to the public trust. In 1869, the State of Illinois granted some submerged Chicago shorefront lands Michigan to the Illinois Central Railroad Company. Four years later, regretting its gift, the state repealed the grant. The state then filed suit to quiet the title so that the chain of ownership would be clearly recorded.


Understandably, the railroad company objected. The state retaking title to land that was privately owned seemed to raise the constitutional question of a violation of due process. However, the United States Supreme Court cleverly avoided the constitutional question by finding the original grant of land to be invalid because it violated public trust obligations to Illinois. This case established the central tenet in public trust litigation: that property held in trust for public use must not be constrained.


The Supreme Court held that submerged lands under Lake Michigan were owned by the State of Illinois and held in trust for the people of the state for their common use and enjoyment and could not be transferred. The Supreme Court stated that the land was:

[d]ifferent in character from that which the state holds in lands intended for sale . . . . It is a title held in trust for the people of the State, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties.

In effect, the Supreme Court held that the state could not revoke the grant of submerged land because the company never really had title to them in fee simple; its title was always limited by the public trust. In other cases in which states have conveyed trust lands to private owners, the courts reasoned that the public trust property interests consist of two bundles of rights, the jus privatum (private right) and the jus publicum (public right). These cases concluded that the state could transfer the private right only in strict subordination to the public trust easement created by the public right. Overall, the effect of Illinois Central has been profound. The case has been relied upon hundreds of times by state courts applying the public trust doctrine to public resources, including wildlife. Some states have adopted the doctrine legislatively or constitutionally.


Until Professor Joseph L. Sax published his groundbreaking article on the public trust, the concept of Illinois Central lay dormant, confined to waterways. Professor Sax argued that the principle of public trust extends far beyond the traditional realms of waterways and parklands. He claimed that "[p]ublic trust problems are found whenever government regulation comes into question, and they occur in a wide range of situations in which diffuse public interests need protection against tightly organized groups with clear and immediate goals." Therefore, the government has an additional affirmative duty to protect the public resources that are part of the public trust. Since the article was written, United States judges have broadened the geographic protections and widened the range of activities under the public trust. 


In Geer v. Connecticut, the United States Supreme Court applied the public trust doctrine to the taking of wildlife. The issue in Geer was whether the State of Connecticut, consistent with the Commerce Clause, could forbid interstate transportation of game within its borders. In affirming that power, the Supreme Court observed that, at common law, wildlife, having no owner, is considered to belong in common to all citizens of a state. This principle of governmental control of wildlife was carried over into American society upon colonization. The Geer Court further reasoned:

Whilst the fundamental principles upon which the common property in game rests have undergone no change, the development of free institutions had led to the recognition of the fact that the power or control lodged in the State, resulting from this common ownership, is to be exercised, like all other powers of government, as a trust for the benefit of the people, and not as a prerogative for the advantage of the government as distinct from the people, or for the benefit of private individuals as distinguished from the public good.

This state power was, the Supreme Court reasoned, an equitable property held "in trust for all the people of the State." Proponents of "states' rights" seized upon the opinion's broad language and its conflation of state regulatory power with concepts of property, claiming that states owned the wildlife within their borders. Under the then prevalent constitutional theory, state and federal governments occupied mutually exclusive spheres. If states owned the wildlife within their borders, the federal government had only a very limited role in the conservation of that wildlife. 


The Geer holding remained law for nearly a century, until the Supreme Court reconsidered Geer's constitutional interpretation in Hughes v. Oklahoma. While overruling Geer as to the constitutionality of state prohibitions against interstate shipping, Hughes preserved the trust responsibility set forth in Geer. With respect to the continued viability of the state ownership theory, the Hughes court stated that "[t]he whole ownership theory, in fact is . . . but a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource." After Hughes, the trust responsibility that accompanied state ownership remained.


 The doctrine was later extended beyond navigable waterways by statute and by the courts to cover other public lands. This created more affirmative environmental duties relative to other natural resources. Several courts have taken the small step of using the doctrine to protect fish and waterfowl in trust waters. In one case, an oil spill killed a number of birds on the Potomac River.  When the federal government and State of Virginia sued the polluter, the defendant moved for summary judgment on the basis that neither government owned the birds in question. However, the court found that the public trust doctrine nevertheless gave them a duty to protect the public's interest in the nation's wildlife resources. Other courts have gone further and protected inland wild animals, non-submerged public land, and subsurface waters. Over the last twenty years, courts have held that the public has an easement that protects other interests in trust resources, including wildlife habitat, water conservation, and public access. 


The scope of protected natural resources today is generally broad. Particular resources, such as rivers, the sea, and the seashore are especially important to the community's well being and are retained for public use. Many bodies of water are thus deemed quasi-public property, giving the sovereign special prerogatives at the expense of private parties. Under the public trust doctrine, the public retains an easement to use trust resources for certain public purposes.

State Responsibility Today Under the Public Trust Doctrine


Duties of the State

What Counts? (as Public Trust Property)


Expansive View

Restrictive View

Constant Evolution of Public Trust

Groundwater Resources


1. Duties of the State:

The state's role as sovereign over trust lands imposes certain environmental duties that it owes to the public and are thus enforceable by the public. Under the public trust doctrine, the state "may not destroy or relinquish its control over public resources except under certain, very narrow circumstances." Although states have broad discretion implementing fiduciary obligations imposed by the public trust, states are not free to alienate or extinguish the trust.


The public trust imposes upon the government an "affirmative obligation" to protect resources. At the most basic level, "the public trust doctrine holds that government must act as a fiduciary in its management of the resources which constitute the corpus of the trust." Public trust resources:

"are protected by the trust against unfair dealing and dissipation, which is classical trust language suggesting the necessity for procedural correctness and substantive care. . . . The public trust doctrine demands fair procedures, decisions that are justified, and results that are consistent with protection and perpetuation of the resource."

At least one state court has found that the public trust in natural resources is an active trust. This means that the government is required to affirmatively protect and preserve the trusts. In 1927, the Wisconsin Supreme Court ruled that:

"The trust reposed in the state is not a passive trust; it is governmental, active, and administrative. . . . [T]he trust, being both active and administrative, requires the lawmaking body to act in all cases where action is necessary, not only to preserve the trust, but to promote it. . . . A failure so to act, in our opinion, would have amounted to gross negligence and a misconception of its proper duties and obligations in the premises."

Under the public trust doctrine, the state as trustee of natural resources arguably is endowed with duties akin to an ordinary trustee. "In theory, a private trust protects a corpus intended for the benefit of an individual or group from . . . shortsighted and biased control of one or more beneficiaries." Under traditional trust principles, the heart of a trust is the discretionary duties imposed upon the trustee; delegation of these discretionary duties to the beneficiaries would defeat the purposes of the trust and render it a nullity. According to the Restatement, the "duty of the trustee is not only to take and keep control of the trust assets, but to take and keep exclusive control." "The trustee . . . has exclusive control of the trust property, subject only to limitations imposed by law or the trust instrument."


The state cannot abdicate its duty to preserve and protect the public's interests in wildlife resources. This duty is vested exclusively in the state. The state must consider diffuse and competing common needs when making decisions relating to the protection of wildlife, such as the decision to allow or prohibit hunting and trapping. 


In his widely cited 1970 law review article, Professor Joseph Sax developed the modern theory of the public trust doctrine as a tool to protect the public interest from the "insufficiencies of the democratic process." Sax states 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. Based on this premise, it follows, inter alia "the state, as trustee, must prevent substantial impairment of the wildlife resource so as to preserve it for the beneficiaries -- current and future generations."


Under the public trust doctrine, the state must: (1) consider the potential adverse impacts of any proposed activity over which it has administrative authority; (2) allow only activities that do not substantially impair the state's wildlife resources; (3) continually monitor the impacts of an approved activity on the wildlife to ensure preservation of the corpus of the trust; and (4) bring suit under the parens patriae doctrine to enjoin harmful activities and/or to recover for damages to wildlife.


States can generally define the extent of the public trust doctrine as it is applied in their state. For example, California v. United States held that a state has the right to define the nature and extent of its property under the common law relating to water interests. As a result of this freedom to define the extent of the doctrine, states understandably vary in their approaches to the public trust doctrine. Some have an expansive view while other states have a restrictive view.

a. The Expansive View

New Jersey is one example of a state that has taken an expansive view of the public trust. Hudson City Water Co. v. McCarter forbade a private diversion of water from a stream by a company contracted to sell water to New York City without the consent of the State of New Jersey. The Supreme Court, in Hudson stated:

"We are of the opinion, further, that the constitutional power of the state to insist that its natural advantages shall remain unimpaired by its citizens is not dependent upon any nice estimate of the extent of present use or speculation as to future needs ... and there are benefits from a great river that might escape a lawyer's view. But the state is not required to submit even to an aesthetic analysis. Any analysis may be inadequate. It finds itself in possession of what all admit to be a great public good, and what it has it may keep and give no one a reason for its will."

Instead of simply cataloging the things and activities that are protected by the public trust, New Jersey has conceptualized the trust differently. The Supreme Court of New Jersey views the public trust as a flexible concept, changing with the needs of the population. In Borough of Neptune City v. Borough of Avon-By-The-Sea, the court held that the public trust doctrine forbids municipalities from discriminating between residents and nonresidents when charging user fees for the beach -- access must be provided equally to all. Using this kind of reasoning, a court is free to go beyond fishing and navigation activities to find a broader recreational interest in the public trust. Traditionally protecting the wet sand of a beach, the public trust doctrine has been extended to dry sand.


California has taken a similar approach. The California Supreme Court has extended the public trust inland from the shore in a series of cases. From its original definition in terms of commerce, navigation, and fishing, the court broadened the doctrine. First, two cases established the primacy of the public trust in tidelands, even in circumstances where those lands were legally sold to private owners under state authorization. Second, the next expansion of the public trust doctrine in California occurred in a pair of cases in which the California Supreme Court held that the shores of both Clear Lake and Lake Tahoe were part of the public trust. Consequently, by extension, all inland lakes were included in the public trust.


The most recent extension of the public trust came at the government's expense. In National Audubon Society v. Superior Court , the court was faced with Los Angeles County's intake of vast amounts of water from Mono Lake, dangerously depleting it. The court held that all tributaries are part of the public trust on the ground that, because the public trust already protects navigable waterways, it makes sense to protect the waterways from upstream degradation as well. If tributaries are part of the public trust because of their impact on navigable waterways, there is no scientific barrier preventing a declaration that the entire watershed is part of the public trust. The tributaries themselves are formed by water flowing over the land into small streams. Eventually the California public trust doctrine has the potential to break free from its water-based origins to apply to all natural resources, as foreseen by Professor Sax.


Many states, including those that have recently examined the issue, have significantly broadened the trust to include a wide range of activities. In some states, the trust has been extended to include wildlife and parklands. Several states have found that the public trust includes a right to recreation. For example, the public trust in Wisconsin includes the right to sail, swim, hunt, and enjoy scenic beauty. In a more recent case, Washington courts affirmed expansive access rights in the Washington public trust, but acknowledged that the court must balance the benefits of allowing access with protection of the environment. In that case, the court held that the public trust rights of access do not include the right to use jet -- skis that are harmful to water and wildlife.


Some states have even adopted legislation or constitutional amendments declaring that all publicly held natural resources are subject to the public trust. These few codifications of the public trust notwithstanding, it primarily remains a common law doctrine applicable to all land, not just land owned by the state, and will likely continue to develop on a case-by-case basis in each state.

b. The Restrictive View

Some states have chosen to limit their public trusts to basic uses such as navigation and fishing. For example, Massachusetts took a restrictive interpretation of the right to walk along beaches. Faced with the question of whether the public trust access right to walk along beaches included the right to recreate at the beach, the justices concluded that the right of access was a right of passage only and did not extend to recreational activities while on the public trust land. Maryland has similarly rejected a chance to extend the public trust to rights of public access. States are split between limited access, such as that allowed in Maryland and Massachusetts, and a more broad right of access.  

2. What Counts as Public Trust Property?


Public natural resource law is in a state of constant evolution. The reason for this evolution is a growing understanding of the nature and importance of different types of natural resources. One new resource of critical importance that is coming under the domain of the public trust doctrine is groundwater.  

a.  The Constant Evolution of the Public Trust Doctrine

As discussed in section III.D.2(a), infra , courts continue to expand the number of resources held under the public trust. The trust rights in a particular resource tend to increase over time. For example, the early trust rights in navigable waters were navigation, commerce, and freedom from impeding navigation. These trust rights in navigable waters evolved over time "to recreational uses, including bathing, swimming, and other shore activities." Other state courts have further expanded the trust rights in navigable waters to preserve tidelands for scientific study, open space, as a marine habitat, and for aesthetic beauty. As summarized by one commentator:

"In its early form, the public trust doctrine applied to submerged lands, the foreshore and navigable waters and protected the public's rights and interests in navigation, fishing, and commerce. Since the 1970s, states and courts have extended the scope of the doctrine to protect other public uses including hunting, boating, swimming, bathing, and other recreational activities. Under the influence of changing public perceptions, states have applied the public trust doctrine to preserve and protect tidelands and other environments that provide food, shelter and habitat for birds and marine life and that enhance the scenery and climate of certain areas. The geographical reach of the doctrine has also been expanded. The public trust doctrine now also encompasses non-navigable waters and streams as well as parks, land, wetlands and wildlife."

Thus, compared to its original scope, the public trust doctrine has been expanded considerably.


The public trust theory is constantly evolving to address new environmental threats and incorporate advances in science.

The public trust doctrine is being codified in many state constitutions. In some cases, even absent a constitutional provision, state courts have read the public trust into existing constitutional provisions. Thus, the public trust doctrine, enjoying codification, is no longer just an ancient common law doctrine. The trend toward the constitutionalization of the public trust doctrine frees it from the stigma (and restraints therein) of being a theoretical common law doctrine.


b.  Groundwater

The public trust doctrine should encompass a state's groundwater. A defendant polluter may argue that the public trust doctrine does not apply to groundwater because it is not historically a part of the public trust. However, the reasons for a lack of historical foundation are that (1) groundwater is only starting to become a policy concern, and (2) recent advances in science lending greater understanding of the hydrological cycle have emerged. These developments, coupled with the flexible nature of the public trust doctrine, lend credence to the notion that groundwater should be included in the public trust doctrine.

The Trend Toward Constitutionalization

Article I, section 27 of the Pennsylvania Constitution is an example of the modern codification of the ancient common law public trust doctrine. It states in part: 

"The people have a right to clean air, pure water and the preservation of the natural, scenic, historic, and aesthetic values of the environment. 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."

The Pennsylvania legislature adopted section 27 on April 14, 1970 -- the world's first International Earth Day. Other states have followed Pennsylvania's lead. For example, the Florida Constitution refers to land held "in trust for all the people." Hawaii's constitution marks land held "as a public trust for native Hawaiians and the general public." Other state constitutional provisions maintain at least part of the state's navigable waters are public.


State constitutions have also expanded the public trust beyond navigable waters. According to one commentator:

"In the earliest of these provisions, New York constitutionally created the Adirondack forest preserve in 1895. Within the last decade, environmental advocates have borrowed and expanded on this idea to constitutionally create the "Alabama Forever Wild Land Trust," the "Great Outdoors Colorado Program," and the North Carolina "State Nature and Historic Preserve." Amendments to several other state constitutions also have dedicated funds or otherwise authorized the state to acquire and preserve land of particular aesthetic, recreational, or historic value. "

Sometimes, judges read the public trust doctrine into a state's constitution absent a new constitutional provision. For example, the Louisiana Supreme Court held that the state's environmental regulatory framework, in addition to statutes, is also based on the state's constitution and the public trust doctrine. The court read the public trust doctrine in Louisiana's constitution, which says that,

"[t]he natural resources of the state . . . shall be protected . . . . The legislature shall enact laws to implement this policy." Some courts have found that the public trust doctrine restrains state action by maintaining that the doctrine is constitutional in character.

These constitutional law decisions will likely continue because these provisions give activists and public interest groups standing which they do not generally have in public trust cases. Over time, this precedent can be expected to expand.

The Effect of Constitutionalization

One important effect of constitutionalization is that it gives credence to the notion that the public trust doctrine is constantly evolving. This makes it even harder to argue that the resource in question is not part of the public trust simply because it has not been historically covered by the doctrine.  


The nature of a constitution is to expand to account for social changes -- to respond to new problems in society. As Chief Justice Marshall observed,

"[i]n considering this question, then, we must never forget, that it is a Constitution we are expounding." Marshall further observed, "[l]et the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." Woodrow Wilson wrote, "the Constitution . . . is not a mere lawyers' document: it is a vehicle for life, and its spirit is always the spirit of the age."

Justice Blackmun summarized the modern adherence to this notion, writing that,

"[t]hese precepts of breadth and flexibility and ever-present modernity are basic to our constitutional law."

Today, again, we are expounding a Constitution. The same principles that governed McCulloch's case in 1819 govern modern cases. There can be no other answer. By attaching the public trust doctrine to state constitutions with "breadth and flexibility," the public trust doctrine is greatly expanded.


Non-Navigable Freshwaters

In 1983, the California Supreme Court (in National Audubon Society v. Superior Court of Alpine County) held that the state may regulate the use of non-navigable freshwaters when Public Trust resources may be affected.


Above the Intertidal Zone

New Jersey courts have held that there is a limited right to use the dry sand area of beaches—the area above the recognized boundary of the Public Trust Doctrine, which is the mean high tide line. In Mathews v. Bayhead Improvement Association (1984), the court was careful to note that public use of areas above the mean high tide was based on a circumstantial need and not an unrestricted right to cross over any and all property bordering on the common property.


Other Common Law Doctrines

Cases such as Matthews v. Bayhead are a rarity because in most states the Public Trust Doctrine does not permit the public to cross over private property to reach the shore. The common law, however, may provide the public with a means to continue or reestablish public access to the shore. Related to the Public Trust Doctrine are the common law doctrines of custom and usage and prescriptive easement, which recognize that the public has a right to use a pathway after long and continued use.


The implied dedication of a beach for public use was upheld in the 1932 Rhode Island State Supreme Court decision in Talbot v. Town of Little Compton:

Similarly, in the case of Caminiti v. Boyle (1987), the Washington State Supreme Court found that the public could cross private docks that block passage over Public Trust lands. And the Massachusetts Coastal Access Program actively identifies and preserves rights of way down to the sea established through historic use.

The Public Trust Doctrine and Natural Resource Protection:

Once again, according to Allan Kanner, a professor at Duke University's College of Law, the public trust doctrine is a legal remedy that can be readily utilized by states attorney generals to protect the a state's natural resources.

"Under the public trust doctrine, state AGs can sue, as trustee, for damages to natural resources that are held in the public trust. To recover damages, the AG must demonstrate that the public trust has been violated by an "unreasonable interference with the use and enjoyment of trust rights." Some states allow for the recovery of natural resource damages ("NRD") to any natural resource, while others only allow for the recovery of damages to natural resources that the state government actually owns. States vary as to what is encompassed by the public trust.

AGs can also bring parens patriae suits to recover for damages to a state's natural resources. Parens patriae ("parent of the country") allows a state government to sue to redress injury to a state's sovereign and quasi- sovereign interests, including the environment.


Policy arguments support the AG's use of public trust and parens patriae actions to recover for damages to natural resources. This litigation strategy should have broad based appeal across political ideologies because the notion that a responsible party should pay for the damage it causes is neither a liberal nor a conservative idea. Furthermore, litigation by the state AG, when used in conjunction with a contingency fee arrangement with private litigators, requires little resources or regulatory schemes by the state. This cost-shifting incentive is especially beneficial to states, many of whom are currently experiencing deep budget cuts. Also, AGs can pick and choose which cases and industries to target, so that environmental policy can be balanced against other policy considerations of the state." 

Key Public Trust Doctrine Court Cases:


Some of the important court decisions regarding the application of the public trust doctrine includes:

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