Law Commons^™

Expanding Public Access By Codifying The Public Trust Doctrine: The Massachusetts Experience, William L. Lahey, Lauren Sandler Zurier, Kenneth W. Salinger

Maine Law Review

The Commonwealth of Massachusetts is dramatically expanding public access to the coast through statutory and regulatory codification of the public trust doctrine. Is this legislative and administrative experiment relevant to other states, particularly to Maine? The initial answer to this question may depend on the meaning of the Bell v. Town of Wells decision. For better or for worse, Massachusetts jurisprudence set the course followed by the majority of the Maine Supreme Judicial Court in Bell. To some, including several of the authors in this symposium, the bearing of the Massachusetts courts leads to a civic wasteland where the public's …

Thinking About The Public Trust Doctrine In A Modern Context As Applied To Non-Fungible Tokens, Dustyn Sams

Natural Resources Journal

This paper discusses two popular concepts in the legal world, the public trust doctrine and non-fungible tokens (NFTs). For the first time, it explores whether litigants could successfully use the doctrine to protect valuable NFTs. The public trust doctrine is the legal principle that the government holds and manages land under navigable water and closely associated natural resources in trust of the people. NFTs, on the other hand, are unique collections of cryptographical data that represent ownership of a digital artwork. This paper reconsiders the question of what exactly the scope of the public trust doctrine is and how its …

Putting The Public Back In The Public Trust Doctrine: A Reinterpretation To Advance Native Hawaiian Water Rights, Steven Hindman

Washington Law Review

The public trust doctrine guarantees that the government will hold natural resources in trust and protect them for the common good. The doctrine has played a key role in the allocation of water rights, particularly for Native American and Native Hawaiian interests in the United States. State and federal courts often consider the doctrine when deciding if certain use rights should be granted. In Hawai‘i, the doctrine has taken on a particularly robust form because the State Constitution expressly provides that all public natural resources are to be held in trust for the benefit of all Hawaiians. Unfortunately, the doctrine’s …

Wading Through Troubled Waters: Inequities & Improprieties Of Stream Access Laws In The American West, Alexander Johnson

University of Cincinnati Law Review

No abstract provided.

Water We Cannot See: Codifying A Progressive Public Trust To Protect Groundwater Resources From Depletion, Susan E. Ness

Vanderbilt Law Review

Groundwater provides a vital water supply and plays an integral role in hydrological systems by supporting biodiversity and the overall health and functioning of surface waters. Yet, the current legal landscape in the United States premises groundwater management on outdated scientific understandings of hydrology and fails to adequately protect critical groundwater resources. Moreover, states differ significantly in their groundwater management practices despite the interstate nature of many aquifers. As climate change exacerbates stress to groundwater resources, many of the United States’ largest aquifers rapidly approach depletion.

The public trust doctrine may provide a mechanism to regulate groundwater resources in the …

Emerging Best Practices In International Atmospheric Trust Case Law, Rachel M. Pemberton, Michael Blumm

Utah Law Review

With climate change litigation proliferating throughout the world, a substantial body of case law is emerging. As part of a project of the IUCN World Commission on Environmental Law's Climate Change Specialist Group, this Article, a version of which will be included in a “Judicial Handbook on Climate Litigation,” explains the public trust doctrine’s influence on climate change litigation internationally. We select what we view as judicial “best practices” as a kind of restatement of international atmospheric trust law in 2022. International atmospheric trust law is at the forefront of many best practices, as state and federal courts in the …

Trust Issues: Using States' Public Trust Doctrines To Advance Environmental Justice Claims, Alicia Muir

William & Mary Environmental Law and Policy Review

The primary purpose of this Note is to evaluate a new method one could use to bring an environmental justice claim. This Note suggests that the solution can be found within the reinvigorated public trust doctrine. Instead of pursuing environmental justice claims on the federal level, plaintiffs could utilize the sleeping giant that is states’ public trust doctrines. Pennsylvania courts, the pioneers of this new path, held that its public trust should be evaluated using private trust law principles. By interpreting state-created public trusts through the lens of private trust concepts, citizens in a number of states are capable of …

The Public Trust Doctrine, Property, And Society, Erin Ryan

Scholarly Publications

The public trust doctrine creates a set of sovereign rights and responsibilities with regard to certain resource commons, obligating the state to manage them in trust for the public. In the last century, the doctrine has gradually transformed from an affirmation of sovereign authority over trust resources to a recognition of sovereign responsibility to protect them for present and future generations. Especially in the United States, it has evolved through common, constitutional, and statutory law to protect a broader variety of resources and associated values, including ecological, recreational, and scenic values. Today, the doctrine is frequently invoked in natural resource …

Michigan's Groundwater And The Public Trust Doctrine, Shay Elbaum

Law Librarian Scholarship

In March, legislators introduced a package of bills in the Michigan House of Representatives that would apply the public trust doctrine to the state’s groundwater. But what is the public trust doctrine and why does it matter if it applies to Michigan groundwater? This column provides an overview of the public trust doctrine and its application to groundwater, a summary of the bills now being considered, and resources for tracking their progress.

Conceptualising A Role For The Common Law In Environmental Protection In Singapore, Kenny Chng

Research Collection Yong Pung How School Of Law

In Singapore, the key institutions driving environmental protection are the legislature and the executive. The judiciary’s role in environmental protection has thus far been relatively minor. By drawing upon environmental law theory and comparative analysis of other common law jurisdictions, this paper aims to explore avenues through which the common law can be engaged more meaningfully to further environmental protection in Singapore. A conceptualisation of environmental law as directed at furthering the rule of law by promoting carefully-considered and participatory environmental governance will be suggested as a fruitful way forward for thinking about the role of the common law in …

Held V. State, Alec D. Skuntz

Public Land & Resources Law Review

On March 13, 2020, a group of 16 Montana children and teenagers filed a complaint in the First Judicial District, Lewis and Clark County against the State of Montana and several state agencies. These young Plaintiffs sought injunctive and declaratory relief against Defendants for their complicity in continuing to extract and release harmful amounts of greenhouse gases which contribute to climate change. Plaintiffs premised their argument on the Montana Constitution’s robust environmental rights and protections. The Defendants filed a motion to dismiss which the District Court granted in-part and denied in-part. Held provides a roadmap for future litigation by elucidating …

Offshore Wind Development In The Great Lakes: Accessing Untapped Energy Potential Through International And Interstate Agreement To Overcome Public Trust Concerns, Jordan Farrell

Northwestern Journal of International Law & Business

Offshore wind energy development in the Great Lakes presents an immense opportunity for distributed generation of renewable energy; however, this potential has thus far remained untapped. One significant barrier to why there has not yet been such wind energy development in the Great Lakes is the public trust doctrine. This doctrine generally stands for the principle that a state cannot convey its submerged lands to a private party. However, there remains much legal uncertainty with regards to the doctrine. Courts and scholars have struggled to determine with any certainty the origins and grounding of the doctrine and the limits it …

The Public Trust Doctrine And The Climate Crisis: Panacea Or Platitude?, Joseph Regalia

Michigan Journal of Environmental & Administrative Law

Over a year of shutting down the global economy during the COVID pandemic achieved about .01 degrees of improvement in global warming. Not even a drop in the bucket. We continue to face a monumental climate crisis. And of the many ways that crisis threatens our environment, winnowing water resources is one of the scariest. One solution that many scholars have turned to is the public trust doctrine. At first blush, this doctrine sounds like a panacea for water management problems: When our water resources are threatened enough that current and future citizen’s access to it is in peril, the …

Monopolizers Of The Soil: The Commons As A Source Of Public Trust Responsibilities, Connor B. Mcdermott

Natural Resources Journal

In the seventeenth century, public resources were essential to the survival of the English poor. The common law, stretching back to Magna Carta and the Forest Charter, provided them with usufructuary rights to the commons. Those rights were violated by the enclosure movement, which received royal assent beginning with Charles I’s absolutist reign in 1625. As a result, the common people joined with Parliament to overthrow Charles I. After the Interregnum, Matthew Hale wrote De Jure Maris, a treatise foundational to the public trust doctrine in America and the doctrine’s expansion abroad. Hale lived through the Civil War which resulted …

Up In The Air: A Fifty-State Survey Of Atmospheric Trust Litigation Brought By Our Children’S Trust, Anna Christiansen

Utah Law Review

Frustrated by government inaction in response to the threats posed by anthropogenic climate change, the advocacy organization Our Children’s Trust (OCT) is pursuing legal reform in every state in the United States. These efforts include petitioning state environmental agencies for rulemaking and filing lawsuits against those agencies and the states. The legal claims have generally been rooted in the public trust doctrine. This Note surveys OCT’s efforts and the evolution of the organization’s legal strategy, as OCT has recently based its lawsuits on violations of substantive due process, and in some cases, violations of the states’ own environmental laws. This …

Natural Resources And Natural Law Part Ii: The Public Trust Doctrine, Robert W. Adler

Utah Law Faculty Scholarship

Natural Resources and Natural Law Part I: Prior Appropriation analyzed claims by some western ranchers, grounded in natural law, that they have property rights in grazing resources on federal public lands through prior appropriation. Those advocates asserted their position in part through civil disobedience, sometimes including armed standoffs with federal officials. They also asserted that their duty to obey theistic natural law overrode any duty to obey the Nation’s positive law. Similar claims that individual religious beliefs override positive law have been made recently regarding a range of other controversial issues, such as same-sex marriage, public insurance for birth control, …

After Juliana: A Proposal For The Next Atmospheric Trust Litigation Strategy, Kacie Couch

William & Mary Environmental Law and Policy Review

The cliffs of California are dissolving.2 Glaciers in Colorado and Montana are dissolving.3 Islands in Louisiana and Alaska are dissolving.4 America as we know it is dissolving; twenty-one youth plaintiffs that face a future with less liberty and independence than generations before them claim that federal government inaction in the face of climate change is to blame.5 Those plaintiffs, in the landmark case Juliana v. United States, sought judicial declaration of a federal public trust and substantive due process right to a stable climate system.6 In proceedings, Judge Anne Aiken of the District Court of Oregon declared a newly …

The Public Trust Doctrine In The 21st Century, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

In this Symposium's initial lecture, I will (a) provide a glimpse into life in Medieval England to explain the context from which Magna Carta arose, (b) describe the evolution of environmental rights from Magna Carta to the Forest Carter, (c) explore in a case study how “liberties of the forest” functioned for 800 years in England's Royal Forest of Dean, ultimately sustaining the ecological systems of Dean, (d) discuss the “liberties of the forest” in light of Elinor Ostom's common pool analyses, and (e) offer some views on the question just posed. I shall start by describing the English environment …

Fracking The Public Trust, Kevin J. Lynch

San Diego Journal of Climate & Energy Law

This Article explores the application of the public trust doctrine to fracking, specifically as it relates to regulations designed to prevent harms of continued greenhouse gas (GHG) emissions as a result of the extraction and burning of fossil fuels.

Defining Fishing, The Slippery Seaweed Slope, Ross V. Acadian Seaplants Ltd., Rebecca P. Totten

Ocean and Coastal Law Journal

In Maine, the intertidal zone has seen many disputes over its use, access, and property rights. Recently, in Ross v. Acadian Seaplants, Ltd., the Maine Supreme Judicial Court, sitting as the Law Court, held that rockweed seaweed in the intertidal zone is owned by the upland landowner and is not part of a public easement under the public trust doctrine. The Court held harvesting rockweed is not fishing. This case will impact private and public rights and also the balance between the State's environmental and economic interests. This Comment addresses the following points: first, the characteristics of rockweed and the …

Pure As Running Water: A Constitutional Argument For Utah’S Public Trust Doctrine, Brandon S. Fuller

Utah Law Review

Water rights in America, particularly in western states, have been a pervasive source of legal contention. The histories of these water rights, and the public trust doctrine more broadly, have created a tremendously complex area of law. This field of law is very old and draws on policy concerns stretching back to 100 B.C., overlapping federal and state powers and precedents, and what can only be described as one of the longest games of jurisprudential telephone in existence. As a result, anyone seeking to challenge a state statute, court opinion, or regulation, which they believe impermissibly restricts the public’s right …

Animal Agriculture Liability For Climatic Nuisance: A Path Forward For Climate Change Litigation?, Daniel E. Walters

Faculty Scholarship

Despite possessing statutory authority to regulate at least some contributing causes of climate change, environmental regulators in the United States have recently found themselves tied up in political gridlock. In response, advocates are turning from the regulatory track to a common law liability track, bringing public nuisance suits against fossil fuel producers and electric utilities. However, most of these public nuisance suits have met a common fate: they have been held to be displaced by the comprehensive regulatory framework for controlling greenhouse gas emissions contained in the Clean Air Act. As long as there is even the possibility of regulatory …

Book Review: An Examination Of Maine's Public Beach Access, Ariel A. Hampton

Ocean and Coastal Law Journal

Many people assume that access rights to public resources are unwavering. Two Maine Supreme Judicial Court cases concerning limitations to public access to Maine beaches rebut this assumption. In his book, Maine's Beaches Are Public Property: The Bell Cases Must Be Reexamined, Professor Orlando E. Delogu challenges the modifications to public beach access that resulted from these two cases. This Review focuses on the historical and legal arguments that Professor Delogu presents as justification for the reversal of the Bell cases. Professor Delogu gives compelling reasons for his take on the Bell cases and why the State of Maine should …

From Mono Lake To The Atmospheric Trust: Navigating The Public And Private Interests In Public Trust Resource Commons, Erin Ryan

Scholarly Publications

This Article partners a summary of the Mono Lake story — one of the all-time great tales of environmental, property, and water law — with additional historical context, expanded legal analysis, and new reporting on contemporary public trust developments, especially Juliana vs. United States and the unfolding atmospheric trust climate litigation. The Mono Lake case and its progeny — in which the public trust doctrine has been applied in contexts ranging from takings litigation to groundwater management to fracking regulation and now to climate change — prompt reflection about the way the public trust doctrine navigates complex conflicts between public …

Limiting Lessons From Property: Re-Imagining The Public Domain In The Image Of The Public Trust Doctrine, Deidre Keller

Journal Publications

No abstract provided.

Fracking The Public Trust, Kevin J. Lynch

Sturm College of Law: Faculty Scholarship

Climate change presents an ever more urgent threat, and earlier in 2019, atmospheric carbon dioxide levels reached an all time high for recorded history. Current federal and state policies promoting fossil fuel extraction mean that future governments will have to look very seriously at leaving fossil fuels in the ground, if our society wants to have any hope of avoiding catastrophic climate change.

One of the biggest obstacles to leaving fossil fuels in the ground is the threat of massive takings liability for any government that dares to slow or prevent the extraction of fossil fuels. This has been particularly …

The Public Trust Doctrine, Outer Space, And The Global Commons: Time To Call Home Et, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Space exploration is heating up. Governments and private interests are on a fast track to develop technologies to send people and equipment to celestial bodies, like the moon and asteroids, to extract their untapped resources. Near-space is rapidly filling up with public and private satellites, causing electromagnetic interference problems and dangerous space debris from collisions and earlier launches. The absence of a global management system for the private commercial development of outer space resources will allow these near space problems to be exported further into the galaxy. Moreover, without a governing authority or rules controlling entry or limiting despoliation, outer …

Environmental Protection Through Constitutional Amendment, Robert T. Mann, Richard Jackson

Florida State University Journal of Land Use and Environmental Law

No abstract provided.

The Public Trust In Public Art: Property Law's Case Against Private Hoarding Of “Public” Art, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Private hoarding of important works of art is a phenomenon that has caused their disappearance from public view. The loss of this art undermines republican values like education, community, and citizenship, and therefore should be resisted. This Article explores various legal tools to prevent this from happening, including doctrines and laws that protect artists’ rights in their work, but which offer the public little relief. Turning to two well-known common-law doctrines—public dedication and public trust—to see whether they might provide a solution, the author favors the latter because it is nimbler and better suited to the public nature of important …

Riparian Rights And Public Trust: Enforcement Authority, Reeana Keenen

Virginia Coastal Policy Center

In Virginia, private landowners own the land to the Mean Low Water mark (“MLW”), whereas in many coastal states private landowners only own to the high water mark. The bottomlands channelward of the MLW mark in Virginia are governed by the Public Trust Doctrine, meaning that the state holds this land in trust for use by the public. However, use conflicts can arise where private landowners own property adjacent to publicly owned property or where public easements run through private property adjacent to public beach access points.

This Paper will provide a summary of the law regarding private and public …