This is the second of four posts on the application of the public trust doctrine to water resources, based on a forthcoming CPR publication, Restoring the Trust: Water Resources and the Public Trust Doctrine, A Manual for Advocates, which will be released this summer. If you are interested in attending a free web-based seminar on Thursday, July 30, at 3:00 pm EDT, please contact CPR Policy Analyst Yee Huang, or register here.
As described in this earlier post, the public trust is similar to any legal trust. In the public trust framework, the state is the trustee, which manages specific natural resources – the trust principal – for the benefit of the current and future public – the beneficiaries. To date, the greatest and most consistent successes of the public trust doctrine involve cases of public access rather than resource protection – emphasizing the beneficiaries of the trust rather than fortifying the principal of the trust.
CPR’s forthcoming publication, Restoring the Trust: Water Resources & the Public Trust Doctrine, A Manual for Advocates, focuses on a novel use of the doctrine: to increase, fortify, and otherwise maximize the trust principal, or the natural resources protected by the doctrine. A handful of cases have succeeded in this particular application by requiring improved natural resources management. These cases fall into two broad categories of litigants seeking different purposes:
Illinois Central, the classic example of the doctrine as a limit on state action, arose from a populist movement that challenged the legislature’s grant of lakefront property to a private railroad company. Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892). In ruling that a state cannot wholly abdicate control of trust resources to a private entity, the Supreme Court laid the foundation of the doctrine as an upper limit on state power. In Arizona, Native American tribes successfully challenged the state legislature’s bill to eliminate the public trust doctrine from being considered in a water adjudication. The Arizona Supreme Court expressly stated that the doctrine is a constitutional limitation on legislative power to give away trust resources. San Carlos Apache Tribe v. Superior Court, 972 P.2d 179 (Ariz. 1999).
The other broad category of cases involves the public trust doctrine as support for state action to protect trust resources from private action. For example, the Louisiana Supreme Court upheld a state project, challenged by oyster fishermen, that flooded oyster beds to help recover the coastline and to enhance wildlife and fisheries. According to the court, the state’s public trust duty to prevent the loss of coastal land validated the project, despite the loss of oyster beds and the impact on local fishermen. Avenal v. State, 886 So. 2d 1085 (La. 2004) Similarly, a Virginia appeals court cited the public trust doctrine in upholding a state agency’s order for a riparian landowner to remove non-permitted structures on a pier that interfered with trust resources. Evelyn v. Commonwealth of Virginia Marine Resources Commission, 621 S.E.2d 130 (Va. App. 2005).
A trustee of a legal trust has a fiduciary duty to act in good faith and in furtherance of the beneficiary’s best interest. If the trustee fails to uphold these duties, the beneficiary can bring suit against the trustee. That legal trust framework informs the public trust framework, empowering the beneficiaries of the public trust to compel the state to fulfill its trustee obligations to protect and soundly and sustainably manage water resources.