Public Trust Doctrine-Part II: How the Doctrine Became An American Construct

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Part I

The Public Trust Doctrine has over the years been subjected to judicial innovation. Typically, this advancement of the scope and application of the law has traditionally been done to achieve environmental objectives. However, in some instances has veered into the areas of accommodating recreation and even private businesses. By some legal experts, this broad application of the doctrine is a clear overextension. Especially when there are a plethora of private alternatives that can be used instead to achieve successful conservation efforts (p.44-45). What makes the extension of the Public Trust Doctrine so alarming is how it has been utilized to undermine private property rights. Demonstrating how flexibility can also be as detrimental as being completely static. As the scope of application increases, the rules applying to its administration become more elastic. Veering into the unfortunate territory of arbitrary use of the legal construct could open the possibility of doctrinal abuse by interest groups.

The roots of the Public Trust Doctrine date back to ancient Roman law and continued to live on in the vestiges of English Common Law. Its adjudicatory influence was not truly exported to the United States until the nineteenth century. It was in that century the modern concept of the legal construct was formed. By the end of the twentieth century, the doctrine had evolved to such a degree it barely resembled its legal heritage. Shifting into a near amorphous instrument for activism and indisputable property transfers. A far cry from its original intent of managing public waterways to avoid private stakeholders from impeding boat traffic through blockades. Shifting it from a judicial tool to prevent monopolization of waterways to a highly malleable workaround. 

Arnold v. Mundy,6 N.J.L. 1 (N.J. 1821):

The early 1820s brought the Public Trust Doctrine to U.S. shores, both figurative and literally. Involving a case where the New Jersey supreme court ruled against the private right to harvest oysters in tidal flats (p.191). This case presents a classic example of the issues that can arise due to unclear property rights. However, per the plaintiff, their rights to exclusivity were quite solidly pronounced and legally binding. Arnold claimed that the private right to the oyster bed dates back to the conveyances of king Charles II from the seventh century (p.7-8). As the privilege had been granted “… to his brother, the duke of York..” (p.8). Keeping in alignment with the purported purpose of the doctrine of holding navigable waters in trust for the intended usages of commerce, navigation, and fisheries the court ruled against the accusing party (p.4). Justice Kirkpatrick perceiving the common law precedence a little differently than the plaintiff. Reasoning that under the authority of the crown “… was obligated to hold such lands as a trustee to support the title for the common use…” (p.8). Because the crown never possessed the authority to transfer title to “submerged lands”. Per legal scholar James R. Rasband: “ In dicta, Kirkpatrick added that New Jersey was under the same obligation as the crown: to hold land under navigable water in trust for the people..” (p.8). Meaning that the ruling justice saw that the state of New Jersey was under the same fiduciary responsibilities as the crown. Therefore, muddy tidal lands along the shore could not be alienated from the ownership of one party. Meaning Mundy had not engaged in any form of theft by cultivating oysters planted on the coastal lands Arnold purportedly laid claim to.

However, this is not to say that the ruling in this 1821 case has never been subjected to any scrutiny. Legal scholar James L. Huffman provides some formidable critiques of Justice Kirkpatrick’s decision. Huffman went so far as to state that Kirkpatrick suggesting that the crown could not convey submerged lands has “no basis in English law” (p.191). Even more pertinent to the 1821 ruling was that it contradicted recently implemented state laws. In the previous year, the legislature enacted 1820 N.J. Laws 162 recognizing that people owning “lands adjacent to the waters” had the “exclusive right to plant and harvesting (p.191). In the United State’s first entry into the interpretation of the Public Trust Doctrine, there is already a lack of respect for general property rights. How could the doctrine be valid if a recent state law suggested that submerged coastal lands could be alienated for private oyster harvesting? This precise the type of discrepancy that makes the doctrine worthy of incredulity. Demonstrates how it has had a long history of justifying circumvention of private property rights.

Martin v. Waddell, 41 U.S. 367 (1842)

Two decades after the Arnold case the Public Trust Doctrine was invoked once again. Once again there was another dispute over the right to privately harvest and plant oysters in the “public” shores of New Jersey. Particularly relating to the tidal lands of “ Raritan Bay, in the Township of Perth Amboy” in New Jersey. Justice Taney rejected the plaintiff’s claims on the basis that if the crown held such waters in trust for the use of his subjects, it could not be alienated for private use (p.192). However, this conveniently side-steps the fact that the accusing party was rising the complaint about 1824. statue (p.192). This law did detail the private right to harvest oysters. This distinction did not have much influence on the 1842 ruling.

Per Huffman the Arnold and Martin cases are often seen as the “cornerstone” of the modern application of the Public Trust Doctrine, that does not mean their influence was consistently applied in adjudication (p.192). Nearly a decade later the court ruled against invoking Public Trust on a similar case, Gough V. Bell (1850) (p.50). Effectively overruling the decision in Arnold by reasoning that such an application of the doctrine violated several existing state laws and was antithetical to the intentions of preserving public property (p.192). To anyone concern with the erosion of private property rights, such a legal rationale may sound like a welcomed relief. It fair to note there is a profound degree of inconsistency in the application of this doctrine. Possessing a checkered past even in its nascent history in American law is quite alarming. Gives us down the clear analytical path to how it became an instrument of judicial activism. Being constructional there are not any firm legal tests or normative constraints, the doctrine can be applied in a sundry array of various applications. With little in the way of logical consistency. Leading us into the perilous territory of arbitrary law.

Illinois Central R. Co. v. Illinois, 146 U.S. 387(1892)

The seminal case that laid the foundation for the modern judicial interpretation of the Public Trust Doctrine was Illinois Central Railroad Company V. Illinois (1892). Huffman among many other commentators has referred to this case as the “lodestar” of modern Public Trust law (p.192). The railroad company’s complaint is centered around the city of Chicago reneging on an agreement made back in 1851. The agreement is that the railroad is allowed to construct tracks on the lakefront under the condition that they also constructed a breakwater to protect the harbor. In 1869, the legislator granted 1,000 acres of shoreline to the railroad company to undertake their project (p.193). Four years later the grant was revoked. The Supreme court ruled that the 1869 grant violated the state’s Public trust obligations (p.193). Holding that due to the 1873 revocation of the Lakefront Act was valid since common property cannot be excluded for private use (p.193). Therefore, these actions did not constitute a breach of contract, because the agreement was invalid from the start.

It is reasonable to question the court on the veracity of this decision. Why? Upon closer examination of the court’s decision, it becomes evident that the ruling lacked the nuisance and subtlety requisite to justly adjudicate on the Public Trust concerns. In other words, the law did not prevent submerged lands from being alienated for private use (p.193). However, the state did possess the power to stop private interests from seizing control of public waterways (p.193). As Huffman explains the court decision ends up operating as a double-edged sword. Yes, it does combat the expansive creep of private interests from veer towards commandeering control of navigable waterways. Simultaneously, extending the state’s authority to the submerged shorelines could be economically detrimental.

As professors, Kearney and Merrill have demonstrated in their in-depth explanation of    the history of Illinois Central, the court had good reason to fear that the public’s rights might be compromised due to political expediency and private rent-seeking. At the same time, the court clearly understood that the alienation of submerged lands was essential to the economic future of the state and city (p.194)”

These are some excellent points, however, there is a much more troubling question lurking in the background that Huffman does not thoroughly address. After the Illinois Central can the Public Trust doctrine uses a mechanism for nullifying agreements. It is well established that the interests of private industry are intertwined with the government is the recipe for an unholy union. However, could this breed of jurisprudence be utilized to excuse disrupting agreements between private parties? Did the legislature revoke the grant promised in the 1869 Lakefront Act fall within the fiduciary duties of the state? This action on the behalf of the late 1800’s Illinois legislature was a knee jerk reaction. A preemptive strike against an institution that already suffered from a poor public image. Making exercising the might of the Public Trust Doctrine all the more politically convenient.

Public Trust Doctrine: Part I

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The Public Trust Doctrine is a legal concept that has its basis in ancient Roman law and English Common Law. Being a legal construct, it has been subject to interpretation causing it to evolve over the centuries. Arguably some of the most radical shifts in its judicial application have occurred in the nineteenth and twentieth-century American courts. Shapeshifting from a doctrine used to prevent monopolization of public waterways to a blunt instrument wielded by the interests of the environmentalism movement. Subordinating water usage rights and other forms of private property to loosen conditions that public trust law has been applied. Some scholars such as Joseph Sax perceiving a contextual application of the concept as being too narrow. Believing that having more malleability with the application of the doctrine will help sustains its core function (p.4). This function being putting common resources to the best use for society. Rather than allow these resources to be sold off and alienated by private interests.

At first glance, Sax’s assessment of the doctrine may seem fair to those who are concerned about economic equality. The keen insights of legal scholar Richard Epstein provide an interesting perspective on the Public Trust Doctrine. He essentially likens the concept to be an inverted version of Eminent Domain law (p.8). Meaning that the Public Trust Doctrine mitigates private individuals from commandeering public lands without just compensation. Implying that an individual for example buying public land should not be doing so below the market price. Mirroring how just compensation is an implied right in any takings case as depicted under the Fifth Amendment of the Constitution.  In a society where taxes have been collected this premise makes sense. As taxpayers being the primary contributors to public funds, they own all public assets. In instances, where the costs of selling a public good to a private party outweigh the benefits it can be disputed whether the asset(s) should be sold.

Epstein successfully demonstrates the reciprocal nature of both Eminent Domain and the Public Trust Doctrine. The reason why both legal concepts parallel each other is the fact they are at their core interpretations of property rights. Both provide a framework for the conditions under which property can be transferred from one party to another. One describing the contingencies under which private property can be transferred for public use. The other presenting the conditions under which public property can be alienated for the use of a private party. If we are to hold property rights in high esteem both are subject to the conditions of the Takings Clause.  Unfortunately, both concepts wavered in front of protecting property rights. Proponents of a liberated form of the Public Trust Doctrine have no problem utilizing its amorphous nature to circle property rights to achieve environmental objectives. Theorists such as Sax show little concern for this erosion of property rights. Anything even remotely of a Classical Liberal disposition can be nothing but horrified by the diminished regard for private property in the American legal system.  In terms of the property being misappropriated to satisfy environmental objectives, it is easy to point to Sax being the linchpin for this decades-long trend.

It is not fair or intellectually honest to point all of the blame on Sax, technically the unfettered application of the doctrine began back in the nineteenth century.  Formulating from the seminal case Illinois Central R. Co. v. Illinois, 146 U.S. 387 (1892) considered by many to layout the rubric for the modern American interpretation of the doctrine. However, legal scholars such as Richard J. Lazarus point out that there was a precipitous change in the interpretation of the legal doctrine in the years following the 1970s (p.3). Displaying that there was a radical shift in the jurisprudence surrounding the doctrine that happened to coincide not only with the insights of Sax but also with the nascent period of the Environmental movement. Surmising that the environmental movement hastened the development of the doctrine isn’t at all outlandish. Especially considering it has traditionally been utilized as a legal construct to manage public waterways. Shedding some light on why property rights and environmentalism have historically been at odds. Truly prudent environmentalism manifests itself in sound resource usage and allocation. This can only take place in a world where property rights are enforced. Not nullified through arbitrary and tilted interpretations of legal traditions. Particularly ones that have never even been fully fleshed out in statutory law that take on capricious attributes. Merely shift due to a change on the whim of social trends.

If good resource management aligns itself with good economic policy, why couldn’t more market-friendly approaches to environmental problems be proposed as a compromise? At the very least devise compromises that respect the ownership of private property. One such compromise could entail a theoretical statutory codification of the Public Trust Doctrine. This would mandate compensation regardless of conditions under which land is transferred by the state. While the author is not completely comfortable with the idea of formal written law, this would be a pragmatic solution for two reasons. First off, it would operate as a formal constraint against loose interpretations of the Public Trust Doctrine. Second, it would demand compensation to those who were experience damages by the transfer of a property. Through a formal revision, not only can the doctrine be constrained to its original purpose it also will serve as a safeguard against unjust takings.