The Public Trust Doctrine:
Its Relevance Today
Paul M. Bray, J.D.
[A presentation at the annual conference of the Council of Georgist
Organizations, held in Albany, New York, 13 July 2010. Dr. Paul Bray
is an attorney in private practice and also adjunct professor of law
at Albany Law School. Repringed from
GroundSwell, September-October 2010]
I have not been a Georgist but a number of my passions like parks
including the city and region as a park (a vehicle for protection of
natural and cultural resources coupled with beneficial enjoyment of
the public) and public trust doctrine advance the Georgist notion of
a universal right for all to share in the gifts and opportunities
provided by nature.
While not an economist nor one who likes to address issues of
taxation (other than simple notions of progressivity and that there
is no free lunch for society so we have to pay taxes for the values
we get from society), I do appreciate the benefit of land value
taxation providing a "green tax shift" that promotes
conservation of natural resources and encourages sustainable
development. Before talking about the Public Trust Doctrine, I
want to mention a recent article I wrote about FDR and his concept of
"Liberty of the Community". It is timely because we are
again facing the challenges articulated in the book Man and Nature by
George Perkins Marsh, this time it is global warming. In 1862 the
issue was deforestation.
In 1912 a young NY State Senator with a future, FDR, gave a speech
in Troy where he talked about liberty of the individual and the need
for a robust liberty of the community.
FDR: "There are many persons left today that can see no
reason why if a man owns lands he should not be permitted to do as
he likes with it. The most striking example of what happens in such
a case, that I know of, was a picture shown me by Mr. Gifford
Pinchot last week. It was a photograph of a walled city in northern
China. Four or five hundred years ago this City had been the center
of the populous and prosperous district. A district whose mountains
and ridges were covered with significant trees. Its streams flowing
without interruption and its crops in the valleys prospering. It was
known as one of the most prosperous provinces in China, both as a
lumber exporting center and as an agricultural community.
Today the picture shows the walled town, almost as it stood 500
years ago. There is not a human being within the walls. There are
but few human beings in the whole region. Rows upon rows of bare
ridges and mountains stretch back from the City without a vestige of
tree life, without a vestige of flowing streams and with the bare
rocks reflecting the glare of the sun. Below in the plains the
little soil which remains is parched and unable to yield more than a
tiny fraction of its former crops. This is the best example I know
of the liberty of the individual without anything further."
"As a whole", Roosevelt using New York State as
an example, "we are beginning to realize that it is necessary
to the health and happiness of the whole people of the State that
individuals and lumber companies should not go into the wooded areas
like the Adirondacks and Catskills and cut them off root and branch
for the benefit of their own pocket."
Actually, NYS realized what FDR was talking about in 1885 with the
forest preserve law; 1892 with creation of the Adirondack Park and,
finally, when those 2 actions failed - adoption of the forever wild
clause in the State Constitution which has worked for more than a
In my article I proposed the following constitutional amendment:
Sec. 18. Liberty of the community; emission limit on greenhouse
gas. The people of the state in order to maintain their health and
welfare have a common interest and moral obligation to cooperatively
manage nature wisely.
Emission of carbon dioxide directly or indirectly as a result of
human activity shall be prohibited from increasing and shall be
substantially and expeditiously reduced, except as a result of
extraordinary emergency. Implemention of these provisions may be
compelled by a suit of any citizen.
Public Trust Doctrine
David Slade - Public Trust in Motion - protecting the environment.
As discussed in The Public Trust Doctrine In Motion, the doctrine
has evolved to become a central body of environmental law. It has
been applied by the courts to ground-water, minimum in-stream flows,
water quality protection, habitat preservation, western water rights
(Chapter VI), fisheries, even waterway speed limits.
Here are a few excerpts from The Public Trust Doctrine In Motion:
"The Public Trust Doctrine is by no means a panacea. But,
with the Doctrine's inherent flexibility to evolve as the mores and
needs of society evolve, as our scientific understanding advances,
and as we recognize more every day that our natural resources are
suffering under the weight of modern society, the Doctrine's
essential place in resource stewardship is abundantly clear.
The Public Trust Doctrine has evolved in our own time from an
ancient code, designed to keep the seas, shorelands and fish open to
the public, to a modern doctrine of environmental stewardship.
Although it remains pegged to 'navigable' waters in most states, it
is clear that the principles inherent in the Public Trust Doctrine
can be, perhaps should be, applied to all publicly-held resources.
After all, this is what the citizens of Colorado were hoping to
accomplish with their 2007 ballot initiative that led to Kemper v.
Hamilton. It is a doctrine in motion."
"We are not just a country with serious deterioration of our
waters and natural resources jeopardizing the future health and
welfare of our children. We are a tiny planet with very serious
'carrying capacity' problems, and are in dire need now of sound and
wise environmental stewardship. It is not only that our seas are
rising, it is that our seas are depleted, in some cases dying. The
fisheries of the world's oceans have been reduced nearly 90%. Much
of the coral reefs worldwide are sick, many dying, as in Florida.
Tropical forests are being clear cut and burnt at an alarming rate.
While CO2 increases in our atmosphere causing global warming, we are
destroying the very machinery designed to take CO2 out of the
atmosphere - our forests. We hold all of the public resources - air,
rivers, lakes, timber, land, seas, oceans, wildlife - as trustees
for our children. If we deplete these trust assets today, as we are
voraciously doing, our children, our beneficiaries, will inherit a
far less inhabitable planet."
"Hopefully each State's modern recognition of its Trust Power
- an inherent attribute of its sovereignty - will serve to better
protect all public resources, whether they be water, land, air,
forest or wildlife. This is especially important because the Public
Trust Doctrine is state, not federal law."
As the Nevada Supreme Court so eloquently stated:
"The public trust is more than an affirmation of state power
to use public property for public purposes. It is an affirmation of
the duty of the state to protect the people's common heritage of
streams, lakes, marshlands and tidelands, surrendering that right of
protection only in rare cases when the abandonment of that right is
consistent with the purposes of the trust. Our dwindling natural
resources deserve no less."
Our children and future generations deserve no less.
Hawai`i's Public Trust Doctrine
The following is a condensation of the opening speech given by
James T. Paul, Paul, Johnson, Park & Niles, at the first
statewide Hawai`i Aquatics Conference held on June 11-12, 1999 in
the ahupua`a of Kaneohe.
The Public Trust Doctrine is a judicial created last ditch resort,
a refusal to permit free enterprise and consumptive activity to
proceed without restraint to inevitability. It sets limits and
attempts to draw a line. It is principled. In the management of
natural resources, it is one of the most unusual, most powerful,
most useful doctrines in our legal system.
It is part of the common law of the State; it is provided for in
the Hawaii Constitution; and all of us should be very glad. What
follows is a shortened summary of that doctrine.
The history of the doctrine has two building blocks: Roman law and
English law. It is "old law." It is one of the oldest,
most deeply rooted concepts in the entire body of law. Roman Law.
The Romans believed there were different kinds of property,
depending upon the nature of the property. Some property belonged to
the gods; some property belonged to the state; some belonged to
individuals; and some was "common property." It is the
concept of "common property" that is central to what we
now know as the public trust doctrine.
It cannot be privately owned, and it is for common use, by
everybody. What is common property? Under the Romans it included the
sea, the seashore, the harbors, and all navigable rivers. The Romans
believed the sea was subject to the right of free navigation, and
that the sea was entirely non-proprietary in nature. The law in
Hawai`i and the U.S. regarding the oceans is exactly the same today.
The public trust doctrine has incorporated the Roman notion of the
special nature, the destiny if you will, of these properties.
English Common Law. English "common law" was judge made.
Generally, when the United States was formed in 1776, we imported
and adopted all English common law.
The English had a twist on the Roman notion of common property.
Navigable rivers, the ocean and the seashore were held by the King
for the benefit of the King's subjects. These resources were "owned"
by the King, but not for his private use; he held them "in
trust" for the benefit of all citizens. This is the origin of
the "trust" concept in public trust doctrine.
This British idea of trusteeship was incorporated in U.S. law.
There are, of course, many examples of trusts other than the public
trust. Perhaps surprisingly, in the United States it is the
individual states, not the federal government, that took over the
role the King played in England. Therefore, it is the State of
Hawai'i, not the federal government, that "owns" the
public trust resources in Hawai'i.
What does the State of Hawai`i own? What is the property that is
part of the public trust? The original answer was to look to the law
of England in 1776: navigable waters, the ebb and flow of tidal
waters, and the land beneath them. Therefore, at the moment of
independence of the original 13 states, and thereafter at moment of
state hood for the other 37 states, those public trust resources
became the property of each state to be held in trust for the
As did every other state when formed, when Hawai`i became a state
in 1959, it instantly owned in trust: the ocean from the high tide
line three miles out to sea; all navigable waters; all tidal waters,
whether navigable or not; and all land beneath those waters. What is
"navigable water"? There is a very specific national
definition: a body of water is "navigable" if in its
natural condition the water can be used for water-born commerce. The
U.S. Supreme Court has expanded that definition so that today all
navigable waters and all tidal waters, whether navigable or not, and
the lands beneath them, are subject to the public trust.
In England, the activities protected by the public trust doctrine
were navigation and fisheries. In the U.S., these purposes have been
expanded to include not only navigation and fisheries, but promotion
of commerce as well. Court decisions in various states have also
expanded the physical scope of the trust property to include
non-navigable tributaries that affect public trust property, as well
as wetlands and dry sand areas. For example, if uses of tributaries
adversely affect public trust property, they may be regulated. One
California case has suggested how the public trust doctrine will
expand: "The preservation of ... lands in their natural state,
so that they may serve as ecological units for scientific study, as
open space, and as environments which provide food and habitat for
birds and marine life, and which favorably affect the scenery and
climate of the area." Other courts have emphasized that
environmental concerns are only relatively recently being
sufficiently understood by science to warrant such protection.
In 1978, the Hawai`i Supreme Court expanded the high tidal water
line to the high wash of waves, noting that the Public Trust
responsibilities of the State were so powerful that they could and
did trump legislation that was inconsistent with them. That same
year, the Hawai`i Constitutional Convention made the Public Trust
Doctrine a part of the Hawai`i Constitution (Article XI, Section 1).
The Waiahole Ditch is an example of how the Public Trust doctrine
applies. In 1913 construction of the Ditch began. The idea was to
divert fresh water from the Kahana, Waikane and Waiahole water sheds
to sugar cane fields on leeward side to supplement what became water
being pumped from Pearl Harbor aqueduct. The Ditch is a complex of
tunnels blasted into and through the Koolau Mountains with surface
water intakes, ditches, gates and flumes that mine dike-impounded
water and deliver it to the central plains.
Ground and surface waters are physically interrelated in Koolaus.
Nature brilliantly created natural reservoirs within the mountains
behind dikes formed by cooling lava, which fed streams, springs, and
seeps. As a result, water collected from those dikes for the Ditch
was at the direct expense of surface water flow in Waiahole, Waikane
and Kahana streams. When the Ditch complex was completed, Waiahole
stream flow was reduced by 85%.
In the Waiahole Ditch contested case hearings before the State
Water Commission in 1997, the director of the Division of Aquatic
Resources for the Department of Land and Natural Resources, Bill
Devick, testified that prior to the diversions, Waiahole was noted
for its abundant native fish population. But by 1990, only one o`opu
species could be found in the stream and that was not common.
Reduction in stream flows is "probably the central reason why
fisheries in Kaneohe Bay have declined."
How does the public trust doctrine apply to the Waiahole Ditch?
Kaneohe Bay is clearly a public trust resource and the evidence
presented in the hearings showed that it was clearly affected by the
diversions. Waiahole stream was clearly affected and may be both "navigable"
and "tidal", in which case it is a public trust resource.
But what if the streams were found not to be a traditional public
trust resource? Case law of other states and the Hawai`i
Constitution make a compelling case that these streams - Waiahole,
Waikane, Kahana - are subject to public trust jurisdiction. The
evidence clearly demonstrates the interdependence of the ocean and
these freshwater streams and the devastation of fisheries in Kaneohe
Bay and in the streams caused by the diversion of water into the
I suggest that four lessons of public trust doctrine are incumbent
upon our State managers regarding aquatic resources.
First and foremost, the State is the trustee of the public trust
resources. This is the highest duty under law and that duty requires
the State to protect aquatic resources that are part of the Trust.
This is a "categorical imperative."
Second, when someone wants to use or destroy a public trust
resource, those who seek to do so must have the burden of proof to
demonstrate that their use will not significantly harm the resource,
or if it will harm it, the proposed new use is "consistent with
the purposes of the trust."
Third, if there are alternative sources of water available, those
should be used unless an extremely compelling case, "consistent
with purposes of trust," can be made.
Fourth, the "Precautionary Principle" must be followed.
This principle provides that where scientific evidence is
preliminary and not yet considered conclusive regarding management
and risk to the public trust resource, the trust resource must be
protected. Lack of full scientific certainty should never be the
basis for permitting the degradation or destruction of public trust
The public trust doctrine provides principled guidelines to
leaders who are concerned about the tension between development and
preservation, between the rights of Native Hawaiian's and
non-indigenous peoples. It serves as a beacon to guide us.
Hawai`i must be a model not only for the United States, but for
the world in terms of management of natural resources. To paraphrase
a proverb credited to the Lakota Sioux: "We didn't inherit the
earth from our ancestors; we borrow it from our children." The
public trust doctrine is the legal embodiment of this principle.
Public Trust Doctrine Prospects:
A Court in New York State declared in dicta that, "[T]he
entire ecological system supporting the waterways is an integral
part of them and must necessarily be included within the purview of
the trust." The Court was calling for protective measures
against actions which would degrade the trust resource, the
waterway. Another court in NYS upholding the LI Pine Barrens law
protecting 50,000 acres of pine barrens and an acquifer also relied
in part of the public trust doctrine.
A Court in the State of Iowa noted that the Public Trust Doctrine
has, "emerged from the watery depths [if navigable waters] to
embrace the dry sand area of a beach, rural parklands, a historic
battlefield, wildlife, archeological remains, and even a downtown
At a 1995 conference, Professor of Law Robert Reis expressed the
opinion that the enhanced data on natural and cultural resources
made available through the information and analysis capabilities of
Geographic Information Systems ("GIS") will greatly expand
the application of the Public Trust Doctrine. He believes that the
GIS data framework will facilitate the identification of interests
(both of use and protection) and resources subject to the Doctrine
to determine whether the State is meeting its fiduciary
responsibility for trust resources.
Yet to be realized is the usefulness of PTD for area-wide
management of ecosystems, watersheds, bio-regions, cultural
landscapes and other protected areas.
The report of the US National Project on the Public Trust Doctrine
pointed out that, "area-wide management programs may be
structured, using the public trust doctrine with the state's police
in tandem, to encourage comprehensive management over lands, waters
and resources within the area, and thus avoid the limitations
inherent in ad hoc permitting decisions."
Area-wide management using the Doctrine begins with identifying
the common resources making up the Trust, the public's interest in
these resources and public benefit uses for them. Uses may range
from recreational and environmental to economic. The public interest
forms the basis for identifying and prioritizing the use of the
public trust resource. Regarding the constitutional issue of
regulatory takings, local governments in the USA have become
reluctant to exercise their powers to regulate land use because of
US Supreme Court decisions that certain acts of regulation
constituted a taking of private property for which the private owner
must be compensated. Some scholars have expressed the view that the
common law PTD may protect governmental regulation of land which is
in furtherance of an ecologically based real property law. (Lucas
case and recent Florida case.)
PTD may prove useful in providing a global legal framework for
protecting and managing natural and cultural resources both within
national jurisdictions and in supranational forums. It facilitates
the weighing of legitimate public and private as well as
conservational and development interests to create a well-balanced
plan for resources protection and use.
(editor's note: Hawai'i is the name of the island and the county.
Hawaii is the name of the state.