Public trust doctrine

The public trust doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain it for the public's reasonable use.

Origins

The ancient laws of the Roman Emperor Justinian held that the seashore that were not appropriated for private use were open to all. This principle became the law in England as well. Subsequently in the Magna Carta these public rights were further strengthened at the insistence of the nobles that fishing weirs which obstructed free navigation be removed from the rivers.

These rights were further strengthened by later laws in England and subsequently became part of the common law of the United States as established in Illinois Central Railroad v. Illinois 146 U.S. 387 (1892). In that case the Illinois legislature had granted an enormous portion of the Chicago harbor to a railroad. A subsequent legislature sought to revoke the grant, claiming that original grant should not have been permitted in the first place. The court held that common law public trust doctrine prevented the government from alienating the public right to the lands under navigable waters (except in the case of very small portions of land which would have no effect on free access or navigation).

In subsequent cases it was held that this public right extended also to waters which were influenced by the tides regardless of whether or not they were strictly navigable. This concept also has been found to apply to the natural resources (mineral or animal) contained in the soil and water over those public trust lands.

Application

This doctrine has been significant in two areas primarily; land access and use, and natural resource law.

Navigable waters

It is most often invoked in connection with access to the seashore. The law differs among the fifty states but in general limits the rights of ocean front property below the mean high tide line. Massachusetts and Maine which share a common legal heritage allow private ownership as far as the mean low water line but allow for public rights to fishing, fowling and navigation (with the necessary permits). These two states are the most restrictive of public rights and represent the exception. Most states allow free access to the intertidal zone for walking, swimming, sunbathing, etc. This does not always include the right to cross private land to reach the shore but prevents private owners from excluding the public below the mean high tide line. This line is calculated as the average high tide line of a 14.1 year cycle which means in practical terms that neither property owners nor the public are likely to be able to identify its precise location. The burden of proof therefore falls to the property owner as it would be trespassing for the public to willfully cross above the mean high tide line but not to miscalculate its location.

See also related issue: Navigable servitude

Natural resources

The doctrine has also been used to provide public access across and provide for continued public interest in those areas where land beneath tidally influenced waters has been filled. In some cases, the uses of that land have been limited (to transportation, for instance) and in others, there has been provision for public access across them.

The doctrine has been employed to assert public interest in oil resources discovered on tidally influenced lands (Mississippi, California) and has also been used to prevent the private ownership of fish stocks and crustacean beds.

In most states, lakes and navigable-in-fact streams are maintained for drinking and recreation purposes under a public-trust doctrine.

ee also

*Public trust
*Freedom to roam
*M.C.Mehta v. Kamal Nath

Further reading

*cite journal |last=Sax |first=Joseph L. |authorlink= |coauthors= |year=1970 |month= |title=The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention |journal=Michigan Law Review |volume=68 |issue=3 |pages=471–566 |doi=10.2307/1287556 |url= |accessdate= |quote=

External links

* [http://ssrn.com/abstract=556673 An academic article discussing the history of the public trust doctrine and applying it to wireless spectrum]
*James L. Huffman, Ph.D., [http://www.bepress.com/ils/iss4/art6/ "Fish Out of Water: The Public Trust Doctrine in a Constitutional Democracy " Issues in Legal Scholarship, Joseph Sax and the Public Trust (2003): Article 6.]