Law Commons^™

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 …

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 …

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 …

The Public Trust Doctrine: The Development Of New York’S Doctrine And How It Can Improve, Steven Fink

Touro Law Review

No abstract provided.

Mcgarvey V. Whittredge: Continued Uncertainty In Maine's Intertidal Zone, Benjamin N. Donahue

Maine Law Review

In 2008, William McGarvey and Mary Klientop filed a declaratory judgment seeking a determination that their neighbor, Jonathan Bird, had no right to cross their intertidal land to reach the ocean to scuba dive. McGarvey and Kleintop own property that borders Passamaquoddy Bay in the Town of Eastport. As owners of oceanfront property in Maine, their title extends through the intertidal zone to low water mark in fee simple. The intertidal land they own also stretches in front of Bird’s property, bordering his property just below the high water mark. This configuration creates a strip that separates Jonathon Bird’s property …

Public Resource Ownership And Community Engagement In A Modern Energy Landscape, Samantha Hepburn

Pace Environmental Law Review

The onshore resource conflicts that have erupted in the Eastern states of Australia highlight the deep need for axiomatic structural change in public resource ownership frameworks. Much of the conflict that has arisen stems from the failure of the state, as owner, to give proper regard to the social and environmental concerns relevant to the expansion of onshore resource development. The underlying rationale for vesting resources in the state is to ensure they are managed for the benefit of the community as a whole. The implied sumption is that public benefit obligations are met through state administration because this is …

Fishing, Fowling, And Dockominiums: Maine's Need For A New Approach To Public And Private Intertidal Rights, Agnieszka A. Pinette

Maine Law Review

In the sixteenth century, Queen Elizabeth recognized the public’s inalienable right to the sea. Despite the intuitive concept embodied in the Queen’s pronouncement, a centuries-old debate over the public’s right to the seashore continues to occupy the attention of Maine’s bar and bench. In 2011, for example, the Supreme Judicial Court of Maine, sitting as the Law Court, handed down a decision that maintains Maine’s prevailing judicial analytical framework for resolving property disputes in the intertidal zone. In McGarvey v. Whittredge, the plaintiffs, claiming ownership of the intertidal zone, brought an action in trespass and sought a declaratory judgment that …

The Public Trust As An Antimonopoly Doctrine, Michael Blumm, Aurora Paulsen

Faculty Articles

The public trust doctrine originated — and has persisted in American law — as antimonopoly protection. From the time of its recognition by American courts in the early nineteenth century, the doctrine has protected the public against private monopolization of natural resources, beginning with tidal waters and wild animals. Ensuing public trust case law has extended the scope of trust protection to other important natural resources, including non-tidal and non-navigable waters and land-based resources like parks. Courts are now considering the trust doctrine’s application to the atmosphere. Although there is a considerable body of legal scholarship on the public trust, …

Property And Permitting Boundaries At The Shoreline (Legal Fact Sheet: Ctsg-17-03), Audrey Elzerman

Sea Grant Law Fellow Publications

The determination of the boundary between public and private areas of the shoreline can be a topic of substantial interest and dispute, especially as the environment changes over time. This document explains the property and regulatory boundaries that apply in Connecticut and how those boundaries change.

Public Trust Doctrine Implications Of Electricity Production, Lance Noel, Jeremy Firestone

Michigan Journal of Environmental & Administrative Law

The public trust doctrine is a powerful legal tool in property law that requires the sovereign, as a trustee, to protect and manage natural resources. Historically, the public trust doctrine has been used in relationship to navigable waterways and wildlife management. Despite electricity production’s impact on those two areas and the comparatively smaller impacts of renewable energy, electricity production has garnered very little public trust doctrine attention. This Article examines how electricity production implicates the public trust doctrine, primarily through the lens of four states—California, Wisconsin, Hawaii, and New Jersey—and how it would potentially apply to each state’s electricity planning …

A Breach Of Trust: Rock-Koshkonong Lake District V. State Department Of Natural Resources And Wisconsin's Public Trust Doctrine, Anne-Louise Mittal

Marquette Law Review

Wisconsin has a particularly notable tradition of using the public trust doctrine aggressively to protect the state’s natural resources. The general thrust of the doctrine’s evolution in Wisconsin has been expansion beyond the doctrine’s traditional application to waters navigable for commercial purposes. Emblematic of such expansion is the Wisconsin Supreme Court’s decision in Just v. Marinette County, which scholars have characterized as a landmark extension of the public trust doctrine to non- navigable wetlands adjacent to navigable waters. In light of this tradition, it is unsurprising that the Wisconsin Supreme Court’s recent pronouncement that the Department of Natural Resources …

Slides: Practicing Sustainability In Natural Resource Industries, Gary D. Libecap

Natural Resource Industries and the Sustainability Challenge (Martz Winter Symposium, February 27-28)

Presenter: Gary D. Libecap, Bren School of Environmental Science and Management and Economics Department, University of California, Santa Barbara, National Bureau of Economic Research (NBER)

10 slides

Contested Shore: Property Rights In Reclaimed Land And The Battle For Streeterville, Joseph D. Kearney, Thomas W. Merrill

Northwestern University Law Review

Land reclaimed from navigable waters is a resource uniquely susceptible to conflict. The multiple reasons for this include traditional hostility to interference with navigable waterways and the weakness of rights in submerged land. In Illinois, title to land reclaimed from Lake Michigan was further clouded by a shift in judicial understanding in the late nineteenth century about who owned the submerged land, starting with an assumption of private ownership but eventually embracing state ownership. The potential for such legal uncertainty to produce conflict is vividly illustrated by the history of the area of Chicago known as Streeterville, the area of …

The Categorical (Lucas) Rule: "Background Principles," Per Se Regulatory Takings, And The State Of Exceptions, David L. Callies, David A. Robyak

Touro Law Review

No abstract provided.

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 …

Internationalizing The Public Trust Doctrine: Natural Law And Constitutional And Statutory Approaches To Fulfilling The Saxion Vision, Michael Blumm, Rachel D. Guthrie

Faculty Articles

The public trust doctrine, an ancient doctrine emanating from Roman law and inherited from England by the American states, has been extended in recent years beyond its traditional role in protecting public uses of navigable waters to include new resources like groundwater and for new purposes like preserving ecological function. But those state-law developments, coming slowly and haphazardly, have failed to fulfill the vision that Professor Joseph Sax sketched in his landmark article of forty years ago. However, in the last two decades, several countries in South Asia, Africa, and the Western Hemisphere have discovered that the public trust doctrine …

The Public Trust Doctrine—A Twenty-First Century Concept, Michael Blumm

Faculty Articles

This article briefly surveys the evolution of the public trust doctrine in 19th and 20th century America and discusses some notable recent developments, particularly in the doctrine's scope. It also discusses a treatise project on the public trust doctrine the author is undertaking with a colleague as well as three recent student publications the project has produced on the federal common law nature of the doctrine, its applicability to uplands like parks and beaches, and the adoption of the doctrine in the 2008 Great Lakes Compact. The article serves as an introduction to the publication of two of those articles.

The Public Trust Doctrine And Private Property: The Accommodation Principle, Michael Blumm

Faculty Articles

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, …

Stop The Beach Renourishment Stops Private Beachowners' Right To Exclude The Public, Kristen G. Juras, Sydney F. Ansbacher, Robert K. Lincoln

Faculty Law Review Articles

In this article, the authors examine the various measures implemented by state and local governments to enhance public access to and use of government-owned tidelands, streambeds, and lake shores and how, although not necessarily titled as such, many of these measures result, without payment of compensation, in an easement allowing public access to and use of private waterfront property.

Section I describes the rights of riparian property owners and the right of the public to use government-owned shores and tidelands, followed by a general overview of various state legislative and judicial responses designed to address the conflicts that arise when …

The Public Trust Doctrine And The Great Lakes Shores, Kenneth K. Kilbert

Cleveland State Law Review

The shores of the Great Lakes may look serene, but they are a battleground. Members of the public enjoy using the shores for fishing, boating, birding, or simply strolling along and taking in the scenic vistas. Repeatedly, however, owners of land ordering the Great Lakes (i.e., littoral owners),' armed with deeds indicating they own the shore to the water's edge or even lower, have tried to stop members of the public from using their property above the water's edge. The right to exclude others from your property, the littoral owners argue, is one of the most important sticks in the …

Slides: Rethinking Western Water Law: Restoring The Public Interest In Western Water Law, Mark Squillace

Western Water Law, Policy and Management: Ripples, Currents, and New Channels for Inquiry (Martz Summer Conference, June 3-5)

Presenter: Mark Squillace, Director, Natural Resources Law Center, University of Colorado Law School

20 slides

The Public Trust Doctrine: What A Tall Tale They Tell, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Despite continuing hostility towards the public trust doctrine because of its potential to defeat private property rights and the will of elected representatives, the doctrine refuses to die. It continues to assure public access to and protection of certain natural resources of communal value; in fact, the doctrine's geographic reach and the activities it protects have expanded beyond its original conception. It is this doctrinal accretion that has drawn the attention of Professor James Huffman, who in a recent article criticizes the "ambitions" of public trust scholars who see in "an expansive public trust doctrine . . . a powerful …

The Public Trust In Surface Waterways And Submerged Lands Of The Great Lakes States, Bertram C. Frey, Andrew Mutz

University of Michigan Journal of Law Reform

The modern public trust doctrine compels each Great Lakes state to protect the sustainable future of the Lakes and to preserve traditional public uses. At the same time, the doctrine constrains the states' powers to allow exploitation of trust resources. This Article provides a brief historical overview of the public trust doctrine in waterways and their submerged lands. It next explores how the eight Great Lakes states have applied the doctrine, discusses the surprising number of differences in the doctrine's development from state to state, and provides comparison charts. After analyzing the variety of approaches used by the eight states …

Walking The Beach To The Core Of Sovereignty: The Historic Basis For The Public Trust Doctrine Applied In Glass V. Goeckel, Robert Haskell Abrams

University of Michigan Journal of Law Reform

In 2004, a split panel of the Michigan Court of Appeals announced its conclusion that Michigan littoral owners of property owned to the water's very edge and could exclude members of the public from walking on the beach. In that instant almost 3300 miles of the Great Lakes foreshore became, in theory and in law, closed to public use. The case became the leading flash point of controversy between the vast public and ardent private property rights groups. A little more than one year later, the Michigan Supreme Court reversed that ruling as errant on public trust grounds and returned …

Some Preliminary Thoughts On Contrasts And Convergence In Environmental And Natural Resources Law, Karin P. Sheldon

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

16 pages.

Includes bibliographical references

Law Casebook Description And Table Of Contents: Constitutional Environmental And Natural Resources Law [Outline], Jim May, Robin Craig

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

6 pages.

"James May, Widener University School of Law" -- Agenda

Modern Public Trust Principles: Recognizing Rights And Integrating Standards, Alexandra B. Klass

ExpressO

The public trust doctrine has a long history from its beginnings as an obligation on states to hold lands submerged under navigable waters in trust for the public, to its resurgence in the 1970s as a protector of natural resources, to its influence on state statutory and constitutional law as the public embraced environmental protection principles. However, many have argued that the public trust doctrine has not lived up to its potential as a major player in environmental and natural resources law. This article proposes a new framework for the public trust doctrine as a state tool for environmental protection …

The Right To Float On By: Why The Washington Legislature Should Expand Recreational Access To Washington's Rivers And Streams, Dustin Trowbridge Till

Seattle University Law Review

This article surveys the contemporary status of Washington's navigability doctrine and public trust laws and proposes a solution to the increased conflicts between riparian property owners and recreational river users. Part II addresses the federal navigability jurisprudence that establishes the minimum standards for determining whether a river is navigable. Part III surveys the law of navigability and the public trust doctrine in Washington. Part IV highlights the importance of recreation to Washington residents. Part V analyzes how other jurisdictions, particularly Montana, have resolved conflicts between recreationalists and riparian property owners. Part VI argues that Washington should adopt a recreational boat …

A Property Rights Approach To Sacred Sites Cases: Asserting A Place For Indians As Nonowners, Kristen A. Carpenter

Publications

Although the Free Exercise Clause prohibits governmental interference with religion, American Indians have been unsuccessful in challenging government actions that harm tribal sacred sites located on federal public lands. The First Amendment dimensions of these cases have been well studied by scholars, but this Article contends that it is also important to analyze them through a property law lens. Indeed, the Supreme Court has treated the federal government's ownership of public lands as a basis for denying Indian religious freedoms claims. This Article contends that such holdings rely on an "ownership model" of property law wherein the rights of the …

A Time To Preserve: A Call For Formal Private-Party Rights In Perpetual Conservation Easements, Carol N. Brown

Law Faculty Publications

For more than a century, conservation easements have been used in the United States to maintain open space or protect the environment. Such easements produce a public good. They increase the amount of protected landscapes by preserving property encumbered by easements from private development or consumption while simultaneously allowing grantors the flexibility to negotiate the retention of development rights tailored to meet the grantors' needs. My thesis is that private parties should have a common law property interest in conservation easements sufficient to confer standing to seek injunctive relief to enforce conservation easements and to sue for damages when they …