Results/Conclusions

Background/Questions/Methods

The public trust doctrine (PTD) traces its roots to Justinian: “the following things are by natural law common to all--the air, running water, the sea.”  Historically, the purpose of the PTD was to protect water resources for navigation and commerce when waterways were the principal means of transportation and a source of food. Over time the PTD has been extended by court decisions to cover a wide range of natural resources including groundwater, wetlands, wildlife and public lands. The PTD remains grounded in state common law; and, with few exceptions, has not been recognized as part of federal common law.
In the seminal Illinois Central case the U.S. Supreme Court held that the PTD imposes a fiduciary obligation on the states to preserve public ownership of submerged lands and protect the trust resources (the res). In practice, however, this obligation can be satisfied relatively easily by insuring some public benefits from the private use of public trust resources, provided that ownership of the resource remains in the public. In the Phillips Petroleum case the Court ruled that the geographic scope and legal effect of the PTD depends upon the law of the individual states.

Functionally, the PTD operates in several ways. In the landmark Mono Lake case, for example, the California Supreme Court held that the PTD limited property rights to the use of water subject to the superior rights of the public to protection of the aquatic system. In Just v Marinette the Wisconsin Supreme Court held that the PTD prevented riparian owners from converting wetlands for lakeside development. In McQueen, the South Carolina Supreme Court held that the PTD was part of the “background principles” of state property law, precluding a claim for a compensable “regulatory taking” resulting from restrictions on coastal development. A few states, most notably Hawaii in the Waihole Ditch case, have extended the PTD to the protection of groundwater. More recently, scholars have proposed the concept of an atmospheric trust imposing a governmental duty to reduce greenhouse gases to avoid the catastrophic consequences of runaway climate change.

Results/Conclusions

This presentation will assess how the PTD can be used by government agencies at all levels to manage a variety of land and water resources including wetlands, endangered species habitat, and coastal and marine resources to cope with the accelerating effects of climate change and avoid claims of regulatory takings under the Fifth Amendment.