Justinian I:
“Justinian the Great.”

The ancient laws of the Byzantine (Roman Empire) Emperor Justinian[1] stipulated that the shorelines that were not appropriated for private use were open to all.  Under this legal concept of common property, the tide and submerged lands were unique: it was thus impossible to hold private ownership over the air, rivers, sea and the seashore; they were dedicated to the use of the public, and the state was to hold them “in trust” for the people.[2]  Thus, common property could be owned by no one, affording all citizens access to it.

Government
(the sovereign) has an affirmative duty to administer, protect, manage and conserve fish and wildlife;
further, government cannot turn that responsibility
over to another.

Changes in English common law enacted in 1641, and additional modifications enacted by Colonial Ordinance in 1647, owed to English disfavor for “ownerless property,” and Roman law was expressed by assigning ownership of common property to the king: not for his private use, but as a trustee of these properties for the benefit of the people.

The concept of common easements for public navigation and fishing was introduced, with an understanding that the Crown owned submerged lands and shorelines in trust for the people.  This reinforced the concept within the public trust doctrine that government (the sovereign) cannot own but has an affirmative duty to administer, protect, manage and conserve fish and wildlife; and further, government cannot turn that responsibility over to another.  This re-affirmed that a state’s title to its waterways and tidelands was different from that to the lands it may hold for sale (commit to private purposes), as it must be managed to protect the “common heritage” of its people (see: Henquinet & Dobson, 2006).

English "Common Law" imported into the original U.S. colonies

England adopted the Public Trust Doctrine as common law, and the French Civil Code and Spanish civil law both subsequently acknowledged the concept of common property.  In turn, the Public Trust Doctrine was imported into the 13 original U.S. colonies, and upon their independence, potentially became part of the fundamental law in each state.  After the American Revolution, each of the original states succeeded to this sovereign right and duty: each thus became trustee of the tidelands within its borders for the common use of its people.

In so doing the American courts abolished the English system of royal prerogatives and reestablished and strengthened the full public trust concept.   In 1821, the NJ Supreme Court revisited public trust law closer to the original Roman concept in deciding Arnold v. Mundy, by stating that the ownership of water and underlying lands transferred to NJ citizens upon statehood.

Illinois Central Railroad v. Illinois

Regarded as the most important confirmation of the principles of public ownership, the signature public trust case was adjudicated in 1892: Illinois Central Railroad v. Illinois, 146 U.S. 387.  In this case, the Supreme Court declared that the “sovereign lands” of a state are held in trust by the State for all present and future generations, and that such land may not be sold for development incompatible with uses covered by the Public Trust Doctrine. 

The Illinois legislature had granted large sections of the Chicago harbor—including the bed of Lake Michigan—to the Illinois Central Railroad, which wanted to change use of the land.  A succeeding legislature sought to revoke the grant, asserting it should never have been permitted.  Parallel yet opposing arguments were debated; (and which offer example of possible conflict between concepts of “public interest” and “public trust”).  Could the legislature appropriate the State of its “ownership” of submerged lands, and of the resultant control of those waters?  Conversely, could the railroad “hold” these lands and control the waters (through the grant) against future control over them by the state? 

The court held that the common law Public Trust Doctrine prevented the government from alienating the public right to the lands under navigable waters—except in the case of very small portions of land which would have no effect on free access or navigation—reaffirming that the legislature (an elected body subject to contemporary influence) could not divest the State of the control and management of the harbor and bestow it completely to a private corporation: to do so would be a gross perversion of the trust over the property under which it is held.

This case codified that, pursuant to the Public Trust Doctrine, while states do not own, they hold the waters of navigable streams and their non-navigable tributaries, submerged lands, and fishery and wildlife resources as natural resource assets “in trust for the benefit of all people” (citizens
of the state).

To fulfill this responsibility, these public resources must be maintained, managed, and used in a manner consistent with the use and preservation of public trust benefits, and as such, the doctrine forms the basis of modern fish and wildlife management metrics.

Subsequent cases extended this public right further, to waters which were influenced by the tides regardless of whether or not they were strictly navigable. Later, this concept was applied to the natural resources (mineral or animal) contained in the soil and water over those
public trust lands[6].

Court rulings at both the federal and state levels— and legislation including the relatively recent federal Endangered Species Act, Marine Mammal Act and Environmental Protection Act— adjoined hunting to the scope of the Public Trust doctrine.  More recently, courts have added swimming, recreational boating, and preservation of lands (in their natural status) in order to protect scenic and wildlife habitat values as codified elements
of the trust. 

Of contemporary developments, the definition of the doctrine has been further refined by the California courts, as providing the public the right to use water resources (additionally) for: commerce, environmental preservation and recreation, as ecological units for scientific study, as open space, as environments which provide food and habitats for birds and marine life; and as environments which favorably affect the aesthetic characteristics (scenery) and climate of the area.

Summoning protective measures against actions that would degrade the trust resource (the waterway), the (4th) District Court for Suffolk County, NY “The entire ecological system supporting the waterways is an integral part of them and must necessarily be included within the purview of the trust” (People of Tn. of Smithtown v. Povermo, 71 Misc.2d 524; 1972).

In 1983 the California Supreme Court established the effect of the Public Trust Doctrine for consumptive water resources rights in National Audubon Society v. Superior Court of Alpine County, (33 C3rd 419: the “Mono Lake Case”). 

The court opined that the State has an “affirmative duty to take the public trust into account” in making decisions affecting public trust resources, and a further duty of continuing supervision over these resources which allows and may require modification of such decisions (see footnote #8 below: “Duties
of Trustees”).

A state court in Iowa observed that the Public Trust Doctrine had “emerged from the watery depths (of navigable waters) to embrace the dry sand area of a beach, rural parklands, a historic battlefield, wildlife, archeological remains, and even a downtown area.”[7]  On Earth Day (22 April 1998), the New York State Supreme Court, (Suffolk County: W.J.F Realty Corporation and Reed Rubin v. the State of New York) upheld the Long Island Pine Barrens Protection Act against a “regulatory takings challenge” by relying on the Public Trust Doctrine.  The Act is a comprehensive planning law that established a 50,000 acre protected preserve surrounded by a 50,000 acre managed growth area in Long Island.  In its opinion, the court examined the concept of common law thoroughly, concluding that “… the Common Law did speak on the subject of environmental regulation.”[8]

Plaintiffs contended that the Act amounted to a de facto appropriation (taking) of private properties for public use without compensation, in violation of 5th Amendment Federal and State “due process.”  A regulatory taking objection asserts that a (state) regulation over-reaches, by restricting the use of the land, and denying a landowner all economically viable uses.  (A “categorical taking” refers to situations when government physically occupies a property, and under the rule of eminent domain this requires fair market value compensation.  See also: Nollan v. California Coastal Commission, 483 U.S. 825, 97 L. Ed.2d 677; and Dolan v. City of Tigard, Oregon, 512 U.S. 687 (1994).

Commerce
environmental preservation
recreation
scientific study 
open space 
wildlife habitats
Aesthetic (scenery)
climate

The doctrine requires state government to exercise its responsibilities to protect the trust when making decisions about allocating resources to private uses: if it fails to do so, this may result in the reversal of a decision, even years later and without mitigation of costs or losses, (Bingham and Gould, 1992).  Generally at the forefront of discourse on this issue, California courts have held a requirement to integrate—rather than choose—between the trust, and the state’s (competing or mitigating) “reasonable use doctrine,” for the general public welfare.

Controversy:
The “North American Model”
of Wildlife Conservation

Changing the definition of "Conservation"
to advance stakeholder interests

Endnotes:

[6]  Geer v. Connecticut, 161 U.S. 519 (1896); which dealt with the transportation of wild fowl over state lines.  Geer established that the states owned the wild animals within their borders and could strictly regulate their “management” and “harvest” as a public resource: “the right to preserve game flows from the undoubted existence in the State of a police power.”
 
And later two acts of congress: the Weeks–McLean Act (the Migratory Bird Act of 1913) prohibited the spring hunting and marketing of migratory birds and the importation of wild bird feathers for women’s fashion (deemed: “millinery murder”).  The first US law to regulate shooting of migratory birds, the Act gave the Secretary of Agriculture power to establish hunting seasons nationwide. 

Because migratory birds naturally crossed state and international borders freely, Congress had previously established that regulating their harvest fell under federal purview.  However, owing to constitutional limitations it was replaced by the Migratory Bird Treaty Act of 1918, (39 Stat. 1702, T.S. No. 628; 16 USC §703), flowing from two Supreme Court rulings (the first ruled the 1913 Act unconstitutional and the second, Missouri v. Holland, 252 U.S. 416, [1920], upheld the 1918 Act as a use of the federal “Congressional Treaty Power” to override the provisions of state law that would ordinarily preserve a state's “quasi-sovereign right”).  The Public Trust Doctrine was thereby confirmed as a basis of federal responsibility for directing the “conservation” and “management” of migratory birds, and incorporating such into international treaties, as a reflection of Article VI of the US Constitution: the “Supremacy Clause,” dictating that federal treaty-making authority could not be subject to state scrutiny; (for a modern-day interpretation, see: discussion above, The North American Model) .

[7]  Bray, Paul M., The Public Trust Doctrine, Government Law Center, Albany Law School, 80 New Scotland Ave., Albany, New York 12208.

Fiduciary charge of the doctrine:
Duties of Trustees

[8]  Duties of Trustees.  In locales where it applies, the Public Trust Doctrine creates a duty of administrative (supervisory) control over the waters of navigable streams, their non-navigable tributaries, and fishery and wildlife resources.  As discussed in earlier pages of this essay, trust purposes and obligations have been extended to land resources.  Though these waters are broadly appropriated for drinking, industrial, agricultural supply, or other regulatory uses, the doctrine requires that harm to trust purposes be prevented or minimized whenever feasible.  Water rights or other regulatory approvals for private uses cannot be vested in a manner harmful to these purposes, and no private uses are grandfathered against continuing supervision. 

In the “Mono Lake” case, (National Audubon Society v. Superior Court of Alpine County: see above), The California State Water Resources Control Board (SWRCB) had unconditionally granted appropriation rights of all flows of the non-navigable tributaries to Mono Lake (a terminal “salt lake” on the eastern slope of the Sierra Nevada in CA) to the City of Los Angeles Department of Water and Power’s (LADWP) in 1941.  The SWRCB based its granting of these rights on its interpretation that the California Water Code did not authorize any mitigation of foreseeable harm to environmental quality.

However, after 42 years of exploitation, the water quality and level of the lake had declined to an extent that invertebrate, migratory waterfowl, and fish habitats in tributary streams had suffered immensely, becoming “dry washes.” Fearing further loss, in 1979, the National Audubon Society, Friends of the Earth, the Sierra Club, and the Mono Lake Committee sued the city to halt the export of water: citing stipulations of the public trust doctrine to prevent undue impact on migratory and nesting bird populations.

In 1983 (see: above), the California Supreme Court held that LADWP’s rights remained subject to review and amendment under fiduciary charge of the doctrine.  The court mandated that the SWRCB undertake an objective review to determine whether the trust purposes of the lake and tributaries could be restored and protected; and if such restoration would harmonize with LADWP’s legitimate need to provide water supply. 

Later, the SWRCB determined it was necessary to reduce LADWP’s water diversions from the lake tributaries by 75%, in order to raise and maintain the lake to a level sufficient to protect waterfowl and other affected species.

Numerous court cases followed for more than a decade, as the antagonists debated the extent and nature of Los Angeles’s water rights.  Meanwhile, the water level in the lake continued to drop, and riparian/aquatic habitats remained unrestored.  The LADWP estimated that it had spent nearly $12 million on legal and consultancy fees by 1991. 

In 1994, the state halted any further withdrawal of stream water from the Mono Basin for 20 years: presumably until the lake reached a targeted level.  The LADWP estimated the value of the lost water and hydroelectric power to be nearly $36 million annually, with the costs borne by Los Angeles.  Yet by 2008, the court-stipulated level still had not been reached.  The ruling invigorated advocacy groups to move aggressively to extend the public trust to other areas and uses.

In City of Waterbury v. Town of Washington No. X01-UWY-CV97-140886 (2000), registration of the City of Waterbury, CT’s 70-year old water diversion program under Connecticut’s 1982 Water Diversion Act was challenged.  The diversion significantly diminished natural flows, adversely affecting aquatic biota and recreation in the Shepaug River.  The court held that the CT Environmental Protection Act prohibited long-term diversion at a level that impaired the Shepaug River when prudent and viable alternatives existed.  CT Attorney General, Richard Blumenthal, stated “. . . the decision is important because it explicitly recognizes that a river is an important and protected natural resource, regardless of its commercial value, and that neither older laws nor older contracts can take precedence over our broad environmental protection laws.”

This essay is written for informational purposes, not as legal scholarship, researched from publicly available sources and government documents.  We strive to keep these links current, but occasions may arise wherein upgrades to State of Connecticut sites or editing of other portals by their domain owners may cause the links to mis-direct. If this happens, let us know and we will work to correct.