§ 18.7 - Points of Discussion on the Public Trust Doctrine

• Jurisdiction: Washington

§18.7 POINTS OF DISCUSSION ON THE PUBLIC TRUST DOCTRINE

Having reviewed the vast majority of Washington case law addressing the Public Trust Doctrine in a variety of contexts, a number of discussion points remain to be addressed.

(1) How strong are the historic origins of the Public Trust Doctrine?

Many cases and journal articles unquestioningly repeat the mantra that the roots of the Public Trust Doctrine stretch firmly back to the Code of Justinian and to old English common law as summarized in a treatise by Lord Hale. See, e.g., Hardin v. Jordan, 140 U.S. 371, 390, 11 S. Ct. 808, 35 L. Ed. 428 (1891); Caminiti v. Boyle, 107 Wn.2d 662, 668, 732 P.2d 989 (1987), cert. denied, 484 U.S. 1008 (1988); Ralph W. Johnson et al., The Public Trust Doctrine and Coastal Zone Management in Washington State, 67 Wash. L. Rev. 521, 529 (1992). Some modern scholars, however, have raised questions about the strength of the historic sources. See, e.g., James L. Huffman, Speaking of Inconvenient Truths—A History of the Public Trust Doctrine, 18 Duke Envtl. L. & Pol'y F. 1 (2007) (arguing that the often-cited provisions by Justinian and Hale regarding the Public Trust Doctrine did not purport to summarize Roman law or English common law but rather stated aspirational principles favored by the authors). Even if the writings of either Justinian or Hale did accurately recognize a public trust interest in the use of navigable waters, neither author provided much detail about the purported scope of the public's rights. Is any filling of the shores allowable? Can any fishery or shellfishery be privatized by the sovereign?

The lack of clarity in English common law about the existence or strength of the Public Trust Doctrine was interestingly observed, yet then ignored, by the United States Supreme Court in Martin v. Waddell's Lessee, 41 U.S. (16 Pet.) 367, 10 L. Ed. 997 (1842), a case involving application of the Equal Footing Doctrine. See discussion in §18.2(1), above. Martin involved a dispute between competing oystermen, one claiming oystering rights on the aquatic lands from a state grant, the other claiming rights from a colonial grant. Counsel for the parties provided extensive argument, covering 26 pages of the case report, about the scope of English common law regarding public trust rights and the ability of the king to convey private rights in fishing and shellfish harvest, thereby alienating public interests. Id. at 380-406. The Martin opinion first asserted that the question of the king's ability to grant a private fishery was "not free from doubt, and the authorities referred to in the English books cannot, perhaps, be altogether reconciled." Id. at 410 (emphasis added). Yet immediately after acknowledging this uncertainty in English case law, the opinion then cited two English cases and stated "the question must be regarded as settled in England, against the right of the king, since Magna Charta, to make such a grant." Id. Neither of the English cases cited, however, actually support the statement. See Huffman, 18 Duke Envtl. L. & Pol'y F. at 46. Since this apparent sleight of hand in Martin, the United States Supreme Court has not looked back to reanalyze the strength of the Public Trust Doctrine in English common law.

Even if Roman law and English common law suggests more doubt about the strength of the Public Trust Doctrine than acknowledged by American jurisprudence, the past 200 years of American public trust jurisprudence has definitively taken on a life of its own so as to blunt the impact of further attacks against the foreign roots of the doctrine.

(2) What is the fundamental source of the Public Trust Doctrine?

Aside from the question of the historic roots of the Public Trust Doctrine, one can still legitimately ask about the source of the Public Trust Doctrine in American law. Does the doctrine emanate from the United States Constitution, and if so, which clause? Is Washington's doctrine embodied in the state constitution or perhaps in some chapter of the Revised Code of Washington? Or is the doctrine entirely a product of judge-made common law? Is it best treated like an aspect of property law, analogous to concepts such as a navigational servitude? See United States v. Rands, 389 U.S. 121, 123, 88 S. Ct. 265, 19 L. Ed. 2d 329 (1967) (holding that lands under navigable waters are subject to a dominant servitude allowing the federal government to undertake navigational improvement projects without owing compensation for impairment of riparian rights). Understanding the source of the Public Trust Doctrine might also help us think about the latitude that a state has to define the breadth of private versus public rights over aquatic lands.

As previously discussed, early public trust case law seemed to develop out of Equal Footing Doctrine cases. See §§18.2(1) and 18.4(1), above. The Equal Footing Doctrine originated from a Continental Congress Ordinance of 1784, which carried forward into the Northwest Ordinance of 1787 and was reenacted by the first Constitutional Congress in 1789. See James R. Rasband, The Disregarded Common Parentage of the Equal Footing and Public Trust Doctrines, 32 Land & Water L. Rev. 1, 32-33 (1997). Both ordinances included language stating that as new states are admitted into the Union, they should join on an equal footing with the 13 original states. Id. This original statement of the Equal Footing Doctrine fails to serve as a wellspring of public trust origins because it says nothing whatsoever about aquatic lands or the abilities of states to alienate aquatic lands from public use.

Although the Equal Footing Doctrine does not expressly address public rights over aquatic lands, Congress began to reference public trust concepts when applying the Equal Footing Doctrine in various enabling acts that created new states. The enabling acts for the admission of Louisiana and Mississippi provided that "the river Mississippi, and the navigable rivers and waters leading into the same, or into the Gulf of Mexico, shall be common highways, and forever free, as well to the inhabitants of the said State, as to other citizens of the United States." Shively v. Bowlby, 152 U.S. 1, 33, 14 S. Ct. 548, 38 L. Ed. 331 (1894) (quoting Acts of Feb. 20, 1811, ch. 21, §3; April 8, 1812, ch. 50, §1; 2 Stat. 642, 703; March 1, 1817, ch. 23, §4; 3 Stat. 349). Similarly, the enabling act authorizing Oregon to join the Union provided that the Columbia River "and all the navigable waters of said State, shall be common highways and forever free, as well to the inhabitants of said State as to all other citizens of the United States." Id. at 51 (quoting 11 Stat. 383 (1859)). Could it be then that Congress inherently created, or at least acknowledged, the Public Trust Doctrine through these enabling acts? The challenge with such a theory is that Congress was inconsistent in practice.

Not all enabling acts provided that the navigable waters of the newly admitted state were reserved as common highways for all citizens. Most notably for purposes of this chapter, the enabling act jointly authorizing the admission of Washington, the Dakotas, and Montana failed to include any language regarding navigable waters being reserved as common highways. See 25 Stat. 676 (1889). It would be incongruous if the Public Trust Doctrine existed in different states due only to the whims of Congress displayed in the various enabling acts. This congressional inconsistency in the enabling acts could explain why courts have not typically relied upon enabling acts as the source of the Public Trust Doctrine.

No language in the United States Constitution expressly acknowledges the Public Trust Doctrine. Some scholars have posited that the doctrine emanates from the Commerce Clause and the navigational servitude that flows from that clause. See, e.g., Charles F. Wilkinson, The Headwaters of the Public Trust: Some Thoughts on the Source and Scope of the Traditional Doctrine, 19 Envtl. L. 425, 456-57 (1989). Others have argued that the doctrine stems from the Contracts Clause and reserved powers doctrine. See, e.g., Douglas L. Grant, Underpinnings of The Public Trust Doctrine: Lessons From Illinois Central Railroad, 33...