Public trust

The public trust doctrine is a legal doctrine dealing with the protection of certain uses and resources for public purposes, regardless of ownership. These uses or resources must be made available to the public, regardless of whether they are under public or private control. That is, they are held in trust for the public.

The modern public trust doctrine can be traced back at least as far as Roman civil law. It was further developed in English law as "things common to all." This public trust was applied mostly to navigation: the Crown possessed the ocean, the rivers, and the lands underlying these bodies of water (referred to as jus publicum ). These were to be controlled in order to guarantee the public benefit of free navigation.

In the United States, the public trust doctrine is rooted in Illinois Central Railroad Co. v. Illinois (1892). In this case, the Supreme Court ruled that a grant held by the Illinois Central Railroad of the Chicago waterfront was void because it violated the state's public trust responsibilities to protect the rights of its citizens to navigate and fish in these waters. In making this decision, the court relied on English common law and served to underscore the existence of the public trust doctrine in the United States.

As a trustee, the government (federal or state) faces certain restrictions in protecting the public trust. These include using the trust property for common purpose and making it available for use by the public; not selling the trust property; and maintaining the trust property for particular types of uses. If any of these responsibilities are violated, the government can be sued by its citizens for neglecting its trust responsibilities.

With the rise of the environmental movement, the public trust doctrine has been applied with greater frequency and to a broader array of subjects. In addition to navigable waters, the doctrine has been applied to wetlands , state and national parks, and fossil beds. This expanded use of the doctrine has led to increased conflict. On the ground, there has been growing conflict over the limitations of private property. Landholders who find their actions limited argue that the public trust doctrine is a way to mask indirect takings and argue that they deserve just compensation in return for the restrictions. Among legal scholars, there is concern that the public trust doctrine is not firmly grounded in the law and simply reflects the opinions of judges in various cases. Proponents of the public trust doctrine, however, argue that it is a useful vehicle to temper unrestricted private property rights in the United States. Indeed, it has been argued that if public trust rights exist in private property, then no takings can occur since the regulation is merely recognizing the pre-existing limitation in the property.

[Christopher McGrory Klyza ]

RESOURCES

BOOKS

Plater, Z. J. B., R. H. Abrams, and W. Goldfarb, eds. Environmental Law and Policy: Nature, Law, and Society. New York: West Publishing, 1992.

PERIODICALS

Brady, T. P. "'But Most of It Belongs to Those Yet to be Born:' The Public Trust Doctrine, NEPA, and the Stewardship Ethic." Boston College Environmental Law Review 17 (1990): 621–46.

Kagan, D. G. "Property Rights and the Public Trust: Opposing Lakeshore Funnel Development." Boston College Environmental Law Review 15 (1987): 105–34.