The public trust doctrine is the

principle A principle is a proposition or value that is a guide for behavior or evaluation. In law, it is a rule that has to be or usually is to be followed. It can be desirably followed, or it can be an inevitable consequence of something, such as the l ...

that the sovereign holds in trust for public use some resources such as shoreline between the high and low tide lines, regardless of private property ownership.

Origins

The ancient laws of the

Byzantine Emperor This is a list of the Byzantine emperors from the foundation of Constantinople in 330 AD, which marks the conventional start of the Eastern Roman Empire, to its fall to the Ottoman Empire in 1453 AD. Only the emperors who were recognized as ...

Justinian Justinian I (; la, Iustinianus, ; grc-gre, Ἰουστινιανός ; 48214 November 565), also known as Justinian the Great, was the Byzantine emperor from 527 to 565. His reign is marked by the ambitious but only partly realized '' renova ...

held that the sea, the shores of the sea, the air and running water were common to everyone. The seashore, later defined as waters affected by the ebb and flow of the tides could not be appropriated for private use and was open to all. This principle became the law in England as well. Centuries later, ''

Magna Carta (Medieval Latin for "Great Charter of Freedoms"), commonly called (also ''Magna Charta''; "Great Charter"), is a royal charter of rights agreed to by King John of England at Runnymede, near Windsor, on 15 June 1215. First drafted by t ...

'' further strengthened public rights. At the insistence of English

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fishing Fishing is the activity of trying to catch fish. Fish are often caught as wildlife from the natural environment, but may also be caught from fish stocking, stocked bodies of water such as fish pond, ponds, canals, park wetlands and reservoirs. ...

weir A weir or low head dam is a barrier across the width of a river that alters the flow characteristics of water and usually results in a change in the height of the river level. Weirs are also used to control the flow of water for outlets of l ...

s which obstructed free

navigation Navigation is a field of study that focuses on the process of monitoring and controlling the movement of a craft or vehicle from one place to another.Bowditch, 2003:799. The field of navigation includes four general categories: land navigation ...

were to be removed from

river A river is a natural flowing watercourse, usually freshwater, flowing towards an ocean, sea, lake or another river. In some cases, a river flows into the ground and becomes dry at the end of its course without reaching another body of ...

s. These rights were further strengthened by later laws in England and subsequently became part of the

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...

of the

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. The Supreme Court first accepted the public trust doctrine in '' Martin v. Waddell’s Lessee'' in 1842, confirming it several decades later in ''

Illinois Central Railroad v. Illinois The Supreme Court of the United States, Supreme Court decision in ''Illinois Central Railroad v. Illinois'', 146 U.S. 387 (1892), reaffirmed that each state in its sovereign capacity holds title to all submerged lands within its borders and holds ...

'', 146 U.S. 387 (1892). In the latter case the

Illinois Legislature The Illinois General Assembly is the state legislature (United States), legislature of the U.S. state of Illinois. It has Bicameralism, two chambers, the Illinois House of Representatives and the Illinois Senate. The General Assembly was created ...

had granted an enormous portion of the

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harbor to the

Illinois Central Railroad The Illinois Central Railroad , sometimes called the Main Line of Mid-America, was a railroad in the Central United States, with its primary routes connecting Chicago, Illinois, with New Orleans, Louisiana, and Mobile, Alabama. A line al ...

. 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). The public trust applies to both waters influenced by the tides and waters that are navigable in fact. The public trust also applies to the natural resources (mineral or animal) contained in the soil and water over those public trust lands.

Application

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

Access to ocean and ponds

The doctrine is most often invoked in connection with access to the seashore. In the United States, the law differs among the fifty states but in general limits the rights of ocean front property owners to exclude the public below the mean high tide line.

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and

Maine Maine () is a state in the New England and Northeastern regions of the United States. It borders New Hampshire to the west, the Gulf of Maine to the southeast, and the Canadian provinces of New Brunswick and Quebec to the northeast and nor ...

(which share a common legal heritage) recognize private property ownership to the mean low tide line—but allow public access to the seashore between the low and high tide lines for "fishing, fowling and navigation," traditional rights going back to the Colonial Ordinance of 1647. Maine's Supreme Court in 2011 expanded the public trust doctrine by concluding fishing, fowling and navigation are not an exclusive list; the court allowed the general public to cross private shoreline for scuba diving. The public trust doctrine also finds expression in the Great Pond law, a traditional right codified in case law and statutes in Massachusetts, Maine, and New Hampshire. The state is said to own the land below the low water mark under great ponds (ponds over ten acres), and the public retains in effect an access

easement An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B". An easement is a propert ...

over unimproved private property for uses such as fishing, cutting ice, and hunting. In Oregon, a 1967 "Beach Bill" affirmed the state's public trust doctrine, and the right of the public to have access to the seashore virtually everywhere between the low and high tide marks. In California the situation is more complicated: private landowners often try to block traditional public beach access, which can result in protracted litigation. Freshwater use rights have also been subject to litigation in California, under the public trust doctrine.

Natural resources

The doctrine has also been used to provide public access across and provide for continued

public interest The public interest is "the welfare or well-being of the general public" and society. Overview Economist Lok Sang Ho in his ''Public Policy and the Public Interest'' argues that the public interest must be assessed impartially and, therefor ...

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 Mississippi () is a state in the Southeastern region of the United States, bordered to the north by Tennessee; to the east by Alabama; to the south by the Gulf of Mexico; to the southwest by Louisiana; and to the northwest by Arkansas. Miss ...

California California is a state in the Western United States, located along the Pacific Coast. With nearly 39.2million residents across a total area of approximately , it is the most populous U.S. state and the 3rd largest by area. It is also the m ...

) and has also been used to prevent the private ownership of fish stocks and crustacean beds. In most states in the United States, lakes and navigable-in-fact streams are maintained for drinking and recreation purposes under a public-trust doctrine. In some countries, the public trust doctrine has been applied to provide environmental protection to natural resources in order to uphold human rights. A recent study also demonstrated that public trust doctrines are transnationalizing.

Notes

External links

*Michael Seth Benn
Towards Environmental Entrepreneurship: Restoring the Public Trust Doctrine in New York
155 University of Pennsylvania Law Review 203 (2006). *{{cite journal , first1=Patrick S. , last1=Ryan , url=http://ssrn.com/abstract=556673, title=Application of the Public-Trust Doctrine and Principles of Natural Resource Management to Electromagnetic Spectrum. , journal= Michigan Telecommunications and Technology Law Review , volume=10 , number=2 , year=2004 * James L. Huffman
"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."Restoring The Trust: Water Resources & The Public Trust Doctrine, A Manual For Advocates"
by the Center for Progressive Reform, September 2009
Mono Lake Committee website
Property law Environmental law Public law Legal doctrines and principles