Myopic Federalism: The Public Trust Doctrine and Regulation of Military Activities

• Author: Major Richard M. Lottmer. Jr
• Pages: 02

1. Introduction

   The coastal areas of the United States are a valuable natural resource. This is true for commercial enterprise interests such as fishing' and oil production2 and for conservation or recreation interests.3 It also is true for the United States military, and in particular, its naval seMces.4

   World crises that spur United States action are likeiy to occur in the littorals areas of the globe. While that has been true historically," recent changes in Department of the Navy doctrine reflect a shift in emphasis from open-ocean combat to amphibious operati~ns.~

   Effective amphibious operations of any scale are charac'L'nrred Srster Miarine Corps. Thia -de in b a d on B written thers that the author tubmitted to satnfy, m part, the Master of Laws degree requrrementii of the 42nd Judge Advocate Off~cei Graduate Course at The Judge Advoeare Genersh School. Unmd Stateahmy, Charlottesuile. Y n p a

   U2ommereid fishmg LS B mvltibillion dollar mdvstry rn the Umted States The current Admmutrahon believes That the industry IS mamrnaged at the natlonal level and hopes to correct the altvshon Reoulhorbalion oi0eean and Cmld Piogmms, 1993 Hearing8 Befan the Subeom. on Ocemnggrophy, Ou!f of Mervo, ond th Outer Continrnia! Shijoifhe House Merchonf Manm and Fishrrirs Camm, l03d Cong, 1st Seaa (1993) (statement of Dmna H JOBephsOn, Deputy Underaeeretary for Oceana and Atmosphere, Ratlonal Oeearue and Ahnaapherie Administration! zOffshare mI explaratlon haa been an important aspect of ~ o ~ s i a l ares management for same nme See ERNEST R. BA-, Tm T m w s

   On C O ~ D I T ~ eh 8

   (1953). Efforts to find offshore (111 depomts intensified following the 1973 Arab Odembaigo S. REP No 277, 94th Cong.. 2d Sese, 9 (1976!, repnnled m 1976 US C CAN 1777 [heremiter S m NO 2771

   SCangieaa is concerned over drmdling public lands alonghenca'b coasts. 136 COSC REc H607l (1990) Through federal grants, Congress encourages states to B ~ U X caaatal lands m order to piebewe or restore their 'consewahon, rRTeahOnaI, eealagical or esthetic values " 19 U.S C P1455a@)ll)

   West Supp 1993).'Naval semices include the Yame Coqa and the navy, 10 U S.C. P 5061 (West Supp 1993). and. on B declarauon afwar or when defermned by the President, the Con* Guard, 14 U.S.C 4 3 (1986).

   5Lmoral means "pemimg to the ahore of a lake, ea, 01 ocean? TliE RMDOM HOUSE COLLEOE DICTIOV~Y

   763 (rev. ed. 19801. In a mditan. ~mteit.hMrd can

   mean rithin 650 nautical milei of the mastline DEPT OF NAF FROM IXE SEA 6

   tericed b> forces well trained and well rehearsed Training and rehearsals may start out with simple map and sand table exercises. communications drills. and other types of mundane actions. but the> must culminate in actual movement of ships, aircraft. and troops from deep xater to beaches and further inland This cannot be emulated. To attempt an amphibious operation without the coordination skills and lessons learned from actual training 1s to doom the opera. tlon 10 faallure

   Realistic amphibious training cannot take place in a small area. Successful amphibious operations turn on their commanders' abilities to integrate the movement of aircraft. ships, submarines, landing craft and ground forces into a coordinated attack Changes in technology have forced commanders to plan to launch their assaults from over the horizon If commanders are to train to do these things well, their forces cannot be eonsrrained to operate in an unrealistically m a l l space

   To find the requisite space, the United States may not be able to look over3e~s.

   America's military farces cannot count on trainingm foreign waters Domestic budget shortfalls and international pressures are forcing the United States to close many of it6 O W ~ S ~ B E

   installations To accommodate this change but still remain B force in readiness. Cnited States amphibious farces are going to have to train at home This will increase the density of wtiwty m an already crowded portion o f h e n c a

   Competition for coastal resources IS keen. People are flocking to the coasts. Currently, fifty-four percent of the United States population lives m cowtal counties By the year 2000, eighty percent of the population will live within one hour's drive af the coast.1o Coastal states and Congress recognize this trend and continue to seek new ways to apportion limited co~sidresources

   One of the ways states are dealing with this problem is the public trust doctrine. The public trust doctrine is an ancient legal doctrine that places the state in a tmstee relationship wth the ben. eficiaries of the trust, its citizens. The corpus of the trust can be thought of in general terms 8s the coastal areas of the states."

   In this article, I analyze the application of the public trust doc. trine to military activities m the Coastal area. I beon by attempting to ascertain just what the public trust doctrine means throughout the United States My focus IS on Its evolution, its scope, and sts administration. Zext, I delve into the nature of coastal lands, the nature of federal lands, and the extent of iederal power over lands. Once these preliminary steps are complete, I discuss the application of the public trust doctrine to military activities in the littoral are88 of the United States Following that discussion, I explore the quetion of whether B federal public trust doctrine exists and, if so, how it would affect the militaly-state relationships in coastal areas

   My discussion of the public trust doetrine and military .wtiw-ties takes the form of three challenges: (1) state legdative action that finds military activities incompatible with the public tru8t-a dcrect, broadside challenge, 121 state action to regulate military activmes for mimmmng their impact on the public trust. and (3) a citizen challenge to a state decismn to license public trust land to the federal government far military training.

   11 What E the Public Tmst Doctrine?

   in a very basic form, the public trust doctrine can be thought of as B legal tool to be utilized as either a means to protect trust assets or as an aid to decmon making regarding those a~set6.1~

   Courts, legislatures, government agencies, and even the public itself can use this tool. Its most recent application LI to"direct and control economic growth and to prevent environmental degradation."" But to fully understand the role of the public trust doctrine in coastal area management. we need to look at its histow.

   A Htslovieal Deuelopnient of the Public Trust Doctrine

   Public trust commentators trace the publie trust doctrine to ament Rome Roman law treated navigable waters as a res nail-liiis, a rhing incapable of ownership.'i Rivers. riverbanks, and harbors were res Communes, things of common ownership Ear all Romans lo Use '' Similar notlonl of publlc ownerahlp were prebdent m end law nations such as France and Spain.'6 British law recog-nized the public trust doctrine, but with a twist to accommodate the monarchy tidal and riparian lands and their associated waters were owned by the Croan, but for the mast part available far use b> all pe0p1e.l~ This 1s siplificant because with the notion of sovereign ownership and control came B duty The Crown had to either pre~eriie the trust corpus for future generations or use the trust to ben-efit all people 2o

   ownership of these lands and waters into m and thejus publieurn Apersan who held the JUS privatum m these lands and u,aters did not hold rhe entire fee Instead. the Crown held thejuspublieum title to the properr) as trustee far the people Thus aius primrum owner had the use and enjoyment of such property subject to B dominant servitude exei-cmed by the Crown 21

   B American Deuelopment ofthe Public Trust Doctrine

   Although established m British law. the public trust doctrine lay dormant in post.reuolutionaryAmerlca. Jurists were reluctant to intrude upon the sanctity of prwste property ownership. The public trust doctrine was also too closely associated with the British government s control over property. and early Americans therefore recn,led at Its use 22

   :%'BLIC TRL'sT DOCTPI\E ~upmnote 10, BL 4, 60. SIIVIF.supra note 14, BL l i

   However, Prafeoaor S u cautions 'neither Roman Law nor the English experience ailh lands underlying tidal waters 16 the place to bearch far the core of the Lruit idea ' Joseph L Sax. Liberating the Public Trust Doctrine /?om Ita H~rloizraf Shocklea, 14 U C Dniii L RE\ 183 166 n 6 11960) Smrcaufionr againit ~e1)lnpioleIg on hastow to dmorer fhe"core dfhe fm~t

   Idea 'Id Insteed. m e should look to #ts purpose He q u e s that the public LNPL doctrine dowi the rraniformation of land ovei which rho public has expeciafions from B "reuolutmna$ to an eiolurlona~' pace Sax BII~RIthsf"It1he funcfmn of the Publlc Trvrt as a legal doctrine IZ to pro-tect auch public expectation8 against dealsbiliring changei''Id at 166 l d l i ~~SrL\,r

   Supra note 14 BL liszpm m L e 15 at 189 Pralerior Sarr mdeafea feudal Ikw proiided corn. mon areaa for people to maze their anirnsls. to Bah. to hunt. and to cut peat for fuel

   Clashes between pwate and governmental property intereats eventually caused American courts to turn to the public trust doctrine as a tool of economic First used in Xen Jersey in18Zl?4 the United States Supreme Court's initid encounter with public trust law came twenty-one years later in Martin v. Woddeli,23 another New Jersey case An ejectment wtion, the dispute m Martin arose over the use of tidelands.26 New Jersey granted the defendant a lease of certain tidelands for oystei farming. The plaintiff alleged he heid the entire fee to the lands based upon titles directly flowing out of a grant From the brig of England to his brother, the Duke af Yark, m 1664. If correct. the plaintiff would have prevailed because the state never had acquired an interest in the lands. A fee simple title directly from the King would have extinguished theius pub-licum interest in the lands long before New Jersey became a state.

   After a lengthy discussion concerning...