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Articles 1 - 15 of 15
Full-Text Articles in Law
Instream Flows And The Public Trust, Timothy M. Mulvaney
Instream Flows And The Public Trust, Timothy M. Mulvaney
Timothy M. Mulvaney
Empirical evidence suggests that diversion of instream flows for human use, coupled with the potential impacts of changing climatic conditions, is threatening the sustainability of aquatic life. Nonetheless, several states merely prevent stream flows from being reduced below the "7Q10 flow," or the average flow during the driest consecutive seven-day period that has a likelihood of recurring only once every ten years. Overwhelming scientific consensus suggests that 7Q10 merely preserves water quality standards by calculating the concentration of pollutants in point source discharges, without considering water quantity and numerous other core principles of instream management.
The protection of instream flows …
The Public Trust: The Law's Dna, Gerald Torres, Nathan Bellinger
The Public Trust: The Law's Dna, Gerald Torres, Nathan Bellinger
Gerald Torres
No abstract provided.
The Public Trust Doctrine, Private Water Allocation, And Mono Lake: The Historic Saga Of National Audubon Society V. Superior Ct., Erin Ryan
Erin Ryan
This article tells the epic tale of the fall and rise of Mono Lake—the strange and beautiful Dead Sea of California—which fostered some of the most important environmental law developments of the last century, and which has become a platform for some of the most potentially important developments in the new century. It shares the backstory and legacy of the California Supreme Court’s famous decision in National Audubon Society v. Superior Court, 658 P.2d 709 (Cal. 1983), known more widely as “the Mono Lake case.” Inspired by innovative legal scholarship and advocacy, the decision spawned a quiet legal revolution in …
Shifting Sands: A Meta-Theory For Public Access And Private Property Along The Coast, Melissa K. Scanlan
Shifting Sands: A Meta-Theory For Public Access And Private Property Along The Coast, Melissa K. Scanlan
Melissa K. Scanlan
Over half the United States population currently lives near a coast. As shorelines are used by more people, developed by private owners, and altered by extreme weather, competition over access to water and beaches will intensify, as will the need for a clearer legal theory capable of accommodating competing private and public interests. One such public interest is to walk along the beach, which seems simple enough. However, beach walking often occurs on this ambulatory shoreline where public rights grounded in the public trust doctrine and private rights grounded in property ownership intersect. To varying degrees, each state has a …
The Use Of The Public Trust Doctrine As A Management Tool Over Public And Private Lands, Patricia E. Salkin
The Use Of The Public Trust Doctrine As A Management Tool Over Public And Private Lands, Patricia E. Salkin
Patricia E. Salkin
No abstract provided.
The Public Trust Doctrine And Private Property: The Accommodation Principle, Michael C. Blumm
The Public Trust Doctrine And Private Property: The Accommodation Principle, Michael C. Blumm
Michael Blumm
The public trust doctrine is often accused of undermining property rights, when in fact the doctrine is actually a property concept, and a venerable one. Instead of threatening property rights, the doctrine functions to harmonize public and private rights in important resources, mostly those close to the land-water edge. This article demonstrates how this reconciliation takes place by examining case law recognizing the lineal and conceptual divisions by which the doctrine separates public and private rights. It also considers other ways in which the public trust doctrine balances public and private rights, such as ratifying small privatizations of public resources, …
A Comparative Guide To The Western States' Public Trust Doctrine: Public Values, Private Rights, And The Evolution Toward An Environmental Public Trust, Robin K. Craig
Robin K. Craig
This companion article to the Fall 2007 A Comparative Guide to the Eastern Public Trust Doctrines explores the state public trust doctrines – emphasis on the plural – in the 19 western states. In so doing, this Article seeks to make the larger point that, while the broad contours of the public trust doctrine, especially regarding state ownership of the beds and banks of navigable waters, have a federal law basis, the details of how public trust principles actually apply vary considerably from state to state. Public trust law, in other words, is very much a species of state common …
A Comparative Guide To The Eastern Public Trust Doctrines: Classifications Of States, Property Rights, And State Summaries, Robin K. Craig
A Comparative Guide To The Eastern Public Trust Doctrines: Classifications Of States, Property Rights, And State Summaries, Robin K. Craig
Robin K. Craig
Public trust doctrine literature to date has displayed two distinct tendencies, both of which limit comprehensive discussion of the American public trust doctrines. At one end of the spectrum, articles focused on broader legal principles tend to discuss the public trust doctrine, as though a single public trust doctrine pervaded the United States. At the other end, articles focus on how one particular state implements its particular state public trust doctrine. Few articles have grappled with the richness and complexity of public trust philosophies that more comparative approaches to the nation’s public trust doctrines – emphasis on the plural – …
Speaking Of Inconvenient Truths -- A History Of The Public Trust Doctrine , James L. Huffman
Speaking Of Inconvenient Truths -- A History Of The Public Trust Doctrine , James L. Huffman
James L. Huffman
In the nearly four decades since Professor Joe Sax published an article in the Michigan Law Review, there has been a flood of academic writing and court decisions on the public trust doctrine. The vast majority of these articles and judicial opinions give a brief synopsis of the doctrine’s Roman, English and early American roots. In a nutshell, the generally accepted history is that from Justinian’s Institutes through Magna Charta and Bracton, Hale and Blackstone reporting on English law and Chancellor Kent acknowledging the reception of English and Roman law in America, the public has deeply rooted rights in access …
Ecosystem Services And The Public Trust Doctrine: Working Change From Within, J.B. Ruhl
Ecosystem Services And The Public Trust Doctrine: Working Change From Within, J.B. Ruhl
J.B. Ruhl
What to do with the public trust doctrine? Environmental law scholars have been asking that question for going on 40 years, ever since Professor Joseph Sax surmised in his famous law journal article on the topic that of all the concepts known to American law, only the public trust doctrine seems to have the breadth and substantive content which might make it useful as a tool of general application for citizens seeking to develop a comprehensive legal approach to resource management problems. In this Article we briefly survey reasons why his vision has yet to be fulfilled, and we propose …
Protecting The Public Trust And Human Rights In The Great Lakes, Melissa K. Scanlan
Protecting The Public Trust And Human Rights In The Great Lakes, Melissa K. Scanlan
Melissa K. Scanlan
No abstract provided.
Realizing The Promise Of The Great Lakes Compact: A Policy Analysis For State Implementation, Melissa K. Scanlan, Jodi H. Sinykin, James Krohelski
Realizing The Promise Of The Great Lakes Compact: A Policy Analysis For State Implementation, Melissa K. Scanlan, Jodi H. Sinykin, James Krohelski
Melissa K. Scanlan
No abstract provided.
Palazzolo, The Public Trust, And The Property Owner’S Reasonable Expectations: Takings And The South Carolina Marsh Island Bridge Debate, Erin Ryan
Erin Ryan
South Carolina recently promulgated new guidelines regulating the State’s consideration of requests by private marsh island owners to build bridges for vehicular access through publicly owned marsh and tidelands. Many thousands of these islands hug the South Carolina coast, but they are surrounded by tidelands subject to South Carolina’s formidable public trust doctrine, which obligates the State to manage submerged lands and waterways for the benefit of the public. This piece evaluates the relationship between the public trust doctrine and the takings subtext to the debate over the new guidelines – a relationship that has become particularly interesting in the …
Public Trust & Distrust: Theoretical Implications Of The Public Trust Doctrine For Natural Resource Management, Erin Ryan
Erin Ryan
This essay reviews the theoretical underpinnings of the public trust doctrine, received at common law and constitutionalized in many states, and explores its contentious reception by green legal theorists. Since Professor Joseph Sax's revival of the ancient common law doctrine as a vehicle for environmental advocacy in the early 1970s, it has been hailed by many environmentalists as the most powerful tool available for protecting natural resource commons. At the same time, however, it has been attacked by others who argue that use of the property rights-based doctrine reifies an ownership approach to natural resources and obstructs the development of …
The Evolution Of The Public Trust Doctrine And The Degradation Of Trust Re- Sources: Courts, Trustees And Political Power In Wisconsin, Melissa K. Scanlan
The Evolution Of The Public Trust Doctrine And The Degradation Of Trust Re- Sources: Courts, Trustees And Political Power In Wisconsin, Melissa K. Scanlan
Melissa K. Scanlan
The public trust doctrine is rooted in ancient Roman law and the Wisconsin Constitution. Ancient Roman jurists be- lieved that the natural law concept that the waters are common to all was not subject to the changing whims of legis- latures. Similarly, modern theorists assert that a constitutionally-based doctrine will be more insulated from politics. This Comment demonstrates the limits of these theories. The trust doctrine is not immutable. Based on interviews with the trustees of Wisconsin's water resources, this Comment uncovers the constraints on the trustees. It shows that trust resources are at risk due to politically-motivated decisions and …