Last month, the Nevada Supreme Court held in Lawrence v. Clark County that the public trust doctrine limited the ability of the state to freely alienate certain lands that, though dry at the time of the decision, were submerged under navigable waters at the time of statehood. The case is significant for at least two reasons. First, the court made clear that the public trust doctrine in Nevada places inherent limitations on state power and cannot be easily abrogated by state legislation, thus protecting state resources for present and future generations from the politics of the day. Second, the court clearly grounded its protection for such resources in what I have referred to in earlier scholarship as “ public trust principles.” These public trust principles derive not solely from the common law doctrine but are based on a combination of common law, state constitutional provisions, and statutory provisions that can work in tandem to protect and preserve public trust resources for present and future generations. While courts often rely solely on the common law, state constitutional provisions, or state statutes to protect public trust resources, Nevada joins a small but growing group of state courts that have expressly based public trust decisions on the combination of these authorities and have recognized how they are interrelated.
As background, as I discussed in an earlier post, the public trust doctrine is a concept dating back to Roman Law which holds that there are certain natural resources that are forever subject to state ownership and must be held in trust for the use and benefit of the public. Until the 1970s, the doctrine had little to do with environmental protection and instead was used almost exclusively to prevent the privatization of water-based resources to preserve public access to fishing, boating, and commerce. The doctrine first became a force in environmental law in the early 1970s, and some states, like California, have since applied the doctrine to protect rivers, lakes, and other water-based resources as well as land-based resources such as birds and other wildlife. Other states, however, have a much more limited version of the doctrine, with courts limiting its application to navigable waters and submerged lands under those waters to the extent they invoke the doctrine at all.
In the Lawrence case, the dispute arose when the Nevada Legislature amended its Fort Mohave Valley Development Law to require the state Colorado River Commission (CRC) to transfer its Fort Mohave Valley land to Clark County. The state land registrar deeded the CRC’s interest in the Fort Mohave Valley land to the county except for 330 acres of land adjacent to the Colorado River, which he believed was nontransferable under the public trust doctrine. He argued that even though the land was now dry, it was submerged under navigable waters at the time of statehood and thus was subject to the doctrine’s protections. The county sought a declaration in district court that the state registrar was required by legislative mandate to transfer the land, that the state legislature had already determined that the transfer was in the public interest, and that nothing in the state or federal constitutions prohibited the transfer. The district court granted the county’s motion and ordered the land transferred, but stayed the order pending resolution of the appeal.
The Nevada Supreme Court reversed, holding that the public trust doctrine might indeed prevent transfer of the land if in fact the land was submerged under navigable waters at the time of statehood and depending on the circumstances under which the land became dry. The court began with a history of the common law public trust doctrine under Roman Law and English Law and its adoption in the United States. It then turned to Nevada law and stated that while the state had never expressly adopted the public trust doctrine, state case law had adhered to several principles relevant to the doctrine and had embraced “the tenets on which it is based.” Specifically the court turned to early state case law recognizing that the state holds lands under navigable waters in its sovereign capacity, that the state holds those lands in trust for its citizens, which prevents the transfer of those lands without proper legislative determination, and that any legislative conveyance of trust lands must account for the public’s interest in maintaining waterways for the public use. In response to the county’s argument that the source of the public trust doctrine is common law and the state legislature can abrogate the doctrine by statute, the court stated that the county “fundamentally misapprehends the sources and functions of the public trust doctrine in Nevada . . . .” The court held that the doctrine “is not simply a common law remnant” but that “public trust principles” are contained in Nevada’s constitution and statutes. Specifically, the court relied on the state constitutional provision limiting “gifts” of public funds and resources, as well as a state statute requiring state lands be used in the best interests of state residents, to enhance the status of the public trust doctrine in the state. After detailing the sources of protection for public trust resources, the court cited decisions from Idaho and Arizona (Arizona Center for Law v. Hassell and San Carlos Apache Tribe v. Superior Court) where the supreme courts in those states had also found that state legislative actions could not override public trust doctrine protections.
The court then set forth how the district court should determine first, if the lands at issue were submerged at the time of statehood and, if so, how the lands had become dry. If the lands had become dry by reliction (when a river or stream shifts its location and the lands gradually and imperceptibly become exposed), then the title to the dry waterbed passes to adjoining shoreland landowners and is no longer protected by the doctrine. If the lands had become dry by avulsion (when the land becomes dry by “sudden changes in the course of a stream” by artificial means such as draining, damming, or channeling a waterway), then the state retains title to the land as a disincentive to divert water from public trust lands to increase personal landholdings near navigable water. If the lower court were to determine that the lands remained protected by the public trust doctrine, the next question would be whether the state legislative dispensation of those lands was valid based on (1) whether the dispensation was made for a public purpose; (2) whether the state received fair consideration in exchange; and (3) whether the dispensation satisfies the state’s “special obligation to maintain the trust for the use and enjoyment of present and future generations.” The court held that while there would be deference to legislative findings in this regard, the state courts may not merely “rubber stamp” those findings. The court thus remanded the case to the district court for the required factual findings and conclusions.
Although the decision does not expand the scope of the public trust doctrine to natural resources beyond traditional submerged lands, as has been done in California and a few other states, the case is still significant. First, it is the first time the Nevada Supreme Court has expressly recognized the vitality of the public trust doctrine in the state. Second, in doing so, it made clear that the doctrine is not merely based on state common law that can be easily superseded by state legislative action. This express use of “public trust principles” to bolster the foundation of the doctrine provides a potentially strong legal basis for public trust resource protections. Third, because of this additional constitutional and statutory support for the doctrine, the court made clear that it would review very carefully any legislative action to sell, give away, or otherwise compromise state public trust resources. Robust judicial review is particularly critical now, where dwindling state budgets and hostility toward environmental protection efforts in many state legislatures pose a significant threat to a wide range of public trust resources. In sum, the Nevada Supreme Court’s decision in Lawrence is a welcome addition to the small, but slowly growing body of public trust doctrine cases involving protection of state lands and resources around the country.