Public Trust Doctrine Essay ⋆ Environment Essay Examples ⋆ EssayEmpire

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Public trust doctrine is a series of beliefs and codified laws that consider certain natural resources community property, to be used by all citizens. Since the time of Roman law under Emperor Justinian, common resources were protected. In the Institutes of Justinian, the law states “The things which are naturally everybody’s are air, flowing water, the sea and the seashore.” Furthermore, Roman law treated navigable waterways and the uses of these bodies of water differently than nonnavigable waterways. In essence, according to Ingram and Oggins, “Roman law sought to preserve the use of navigable waterways for public benefit.”

Many societies have attempted to balance the role of the natural rights of all. Evidence of this can be found in the Chinese water law of 249-07 B.c.E., in the traditional customs from Nigeria, in the Islamic water law, from the laws of medieval Spain and France, and in the traditions of North American Native Americans. The first of such laws to be codified in North America were written by the Spanish in Las siete partidas del sabio rey don Alfonso from the Recopilacion de leyes de los reynos de las Indias, according to Ingram and Oggins. However, many scholars such as Slade believe that these rights, reserved for citizens, as they are expressed in Western culture, have become a part of the traditional values that resulted from the Saxon invasion of England during 450 c.E., and were maintained after the Norman conquest of 1066.

The English tradition was reaffirmed on the North American continent when the Magna Carta, the “Great Charter,” which has influenced the development of constitutional law, was originally issued in 1215 c.E. The Magna Carta grants certain rights to the people, which in turn limit some of the power of the king. Particular rights guaranteed by the Magna Carta enlarged the rights of the people’s public interest in navigable waters, public lands, and resources within the context of the English notion of Jus publicum, or public rights of use. The public rights of use were interpreted from the medieval period to the present day to mean those resources held in public trust by the English Crown for the good and benefit of all people. This interpretation of the Magna Carta is the most direct source of law that has served as inspiration and the foundation of the traditional American public trust doctrine, according to Wilkinson.

The earliest documentation of the application of the public trust doctrine in the United States was in 1821 when a New Jersey court ruled that the state could not convey into private property the ownership of public lands. It held that the natural resource (the waterways) vested in the trust of a sovereign state is not for the state’s use, but rather for the use of its citizens for “passing and re-passing, navigation, fishing, fowling, sustenance, and all the other uses of its waters and products…” (Arnold vs. Mundy 6N.J.L.1, 1821). The state can act in a manner that improves the general navigation and navigability of the waterways by building locks, dams, or bridges, but it cannot take actions that deny the public of their common right to the use of natural resources, according to Stevens.

The Arnold vs. Mundy decision, in fact, served as the foundation of American environmental laws. The ruling implied the use of the interpretation of the public trust doctrine as conceived during the medieval period. This ruling recognized the state’s role in serving as a guardian of the public’s interest so that no one truly owns the publicly held resources. The public’s interest is omnipresent. Present-day uses of the understanding of the public trust doctrine have been extended to include recreational use of lakes and beaches [National Audubon Society vs. Superior Court (Mono Lake), 658 P2d 709, Cal. 1983], wildlife preserves (Owsickek vs. Alaska Licensing and Control Board 763 P2d 488, 493, Alaska 1988), and the air (Save Ourselves, Inc. vs. Louisiana Environmental Control Commission, 452 So. 2d 1152, 1154, La. 1984). In all the aforementioned cases, the public trust doctrine has been used to assert that the fundamental underpinning of the public trust doctrine-as presented in Roman law and later extended to include roads and harbors-recognized certain natural resources and ecological systems held in trust by the state for the public’s access and use as inherently public because of their unique characteristics.

Bibliography:

Ingram and C.R. Oggins, “The Public Trust Doctrine and Community Values in Water,” National Resources Journal (v.32/3, 1992);
David Slade, “The Public Trust Doctrine: A Gift from a Roman Emperor,” Coastliner Newsletter of the USEPA (v.7/4, 1997);
Stevens, “Applying the Public Trust Doctrine to River Protections: California Water Plan Update,” www.waterplan.water.ca.gov (2005);
Wilkinson, “The Headwaters of the Public Trust: Some Thoughts on the Sources and Scope of the Traditional Doctrine,” Environmental Law (v.19, 1989).