SOUTH DAKOTA'S PUBLIC TRUST DOCTRINE: CONSERVING NATURAL RESOURCES IN THE TWENTY-FIRST CENTURY.

• Author: Davidson, John H.

1. INTRODUCTION

   This short essay re-introduces the legal community to a cause of action which, although seldom used in South Dakota, can play a necessary role as citizens and governments adjust to old and new threats to our natural resources. The old threats result from forms of pollution and resource destruction which are exempted from regulation, resulting in cumulative effects that can no longer be ignored. The new threats are associated with a changing climate, leading to conditions that law and regulation have failed to anticipate, and for which there are no close precedents in common or statutory law.

   The public trust doctrine has ancient roots and remains a foundation stone in American common and statutory law. Recognizing sovereign fiduciary responsibilities in certain types of land and resources that are critical to the public, the doctrine first appeared in Roman law, remained alive in medieval England, and traveled to the United States in the nineteenth century. (2) The sovereign rights and duties inherent in the public trust affect title held by private as well as public landholdings and recognizes that some natural resources may receive special protection from courts and legislatures. (3)

   The decision of the United States Supreme Court in Illinois Central Railroad Company v. Illinois (4) is frequently cited as a base for revival of the public trust. (5) In 1869, the Illinois Legislature passed a statute granting "all the right and title" of one square mile of submerged lands in Lake Michigan to Illinois Central Railroad to construct wharves, piers, docks, and other facilities in the Chicago harbor. (6) In 1883, the State's Attorney General filed suit against the railroad, alleging that the railroad's construction of improvements in the Chicago harbor was on submerged lands owned by the state. (7) The railroad defended on the ground that the 1869 grant was binding. (8) Disagreeing with the railroad's position, Justice Field stated:

   [T]he State holds the title to the lands under the navigable waters.... But it is a title different in character from that which the state holds in lands intended for sale. It is different from the title which the United States hold in the public lands which are open to pre-emption and sale. It is a title held in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein, freed from the obstruction or interference of private parties. (9) Following, the Supreme Court held in United States v. Chandler-Dunbar Water Power Company, (10) that it is "inconceivable" that any person should claim a private property interest in the navigable waters of the United States. (11) The strands of the doctrine are traceable, however, to a deeper level. As early as 1787, the United States Congress, speaking in the Northwest Ordinance, stated:

   The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well as to the inhabitants of the said territory, as to the citizens of the United States... , (12) Two current treatises dedicated exclusively to the public trust doctrine cite well over seventy American judicial decisions of direct relevance to its development. (13) One frequently cited case is National Audubon Society v. Superior Court of Alpine County, (14) a case that involves private property rights created under state law. (15) Mono Lake is the second largest lake in California. (16) At the base of the Sierra Nevada, the lake has no natural outlet, although five fresh streams feed the lake. (17) In 1940, the City of Los Angeles secured a state permit to appropriate virtually all of the water flowing in four of the five feeder streams. (18) This supply was duly delivered to Los Angeles by two aqueducts that resulted in a steady decline in lake levels. (19) The decline threatened both the aesthetic and ecological values of the lake. (20) In response, a suit was brought to enjoin the diversion "on the theory that the shores, bed, and waters of Mono Lake are protected by a public trust." (21) The Supreme Court of California agreed, stating:

   [T]he core of the public trust doctrine is the state's authority as sovereign to exercise a continuous supervision and control over the navigable waters of the state and the lands underlying those waters. This authority applies to the waters tributary to Mono Lake and bars [Los Angeles] or any other party from claiming a vested right to divert waters once it becomes clear that such diversions harm the interests protected by the public trust. (22) The court declined to issue an immediate injunction and instead instructed the legislature and state government to assume its "affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible." (23)

   Justice Kennedy, in dictum, summarized his interpretation of the doctrine in several opinions of the United States Supreme Court:

   The public trust doctrine is of ancient origin. Its roots trace to Roman civil law and its principles can be found in the English common law on public navigation and fishing rights over tidal lands and in the state laws of this country. Unlike the equal-footing doctrine, however, which is the constitutional foundation for the navigability rule of riverbed title, the public trust doctrine remains a matter of state law, subject as well to the federal power to regulate vessels and navigation under the Commerce Clause and admiralty power. While equal-footing cases have noted that the State takes title to the navigable waters and their beds in trust for the public, the contours of that public trust do not depend upon the Constitution. Under accepted principles of federalism, the States retain residual power to determine the scope of the public trust over waters within their borders, while federal law determines riverbed title under the equal-footing doctrine. (24) Origins of a public trust doctrine can also be traced along an alternative route. American property law developed from roots in the British constitution, under which all vacant lands are vested in the crown. (25) That doctrine traveled to North America with the common law. (26) The American Revolution abruptly removed the crown from the property-ownership formula, creating a vacuum. (27) Into that vacuum, a new concept of "property rights" began to evolve. (28) The king was no longer the protector, and the American government transferred that role to something called "the State." (29) This abstraction of the American common law filled the role of a higher authority acting in the public interest. (30) It recognized "[t]he [o]bligations of the [s]tate [i]tself" and lives on in diverse forms including sovereign immunity; parens patriae; public and private nuisance; trusteeship in wildlife; the Supremacy Clause; pre-emption; and--notably--the public trust. (31)

   Roughly consistent with this theory, Sax argues, in his milestone article, that the public trust serves as an intersection of three key ideas in American history and common law. (32) First, "that certain interests are so intrinsically important to every citizen that their free availability tends to mark the society as one of citizens rather than of serfs." (33) Second, that certain interests "are so particularly the gifts of nature's bounty that they ought to be reserved for the whole of the populace." (34) Third, "[t]hat certain uses have a peculiarly public nature that makes their adaptation to private use inappropriate." (35) To this is added the idea that the public trust is adaptable to changing needs and circumstances. In 1970, the California Supreme Court built upon these three ideas when it wrote that, although the scope of the public trust was traditionally applied to cases involving navigation, commerce, and fisheries, the doctrine is sufficiently flexible "to encompass changing public needs." (36)

   This essay builds on the trust doctrine's strong foundation by summarizing its development in South Dakota, where it has both statutory and common law strands. The argument is that the doctrine in South Dakota clothes courts with a duty and authority to expand its application as changing circumstances require and provides a practical process for courts and lawyers to follow.

2. THE COMMON LAW OF PUBLIC TRUST IN SOUTH DAKOTA

   In Parks v. Cooper, (37) the Supreme Court of South Dakota recognized the essential character of the public trust as an "inherent attribute of sovereign authority." (38) The court described the doctrine as independent of statutory law, while emphasizing that state statutes also codify the doctrine. (39) The decision in Parks arose from a conflict over access for recreational use to water bodies located entirely on private land, but accessible from public rights-of-way. (40)

   The trial court ruled that when lake beds are privately owned the overlying waters are also privately owned. (41) On appeal, the state argued that water is a separate asset held by the state in trust for the public. (42) The court reversed the trial court and, in its opinion, reviewed the public trust doctrine. (43) First, when beds are owned by the state, "they are held subject to a public trust and cannot be conveyed unless it would promote a public purpose." (44) Second, the court applied the federal navigability rule to situations where bed title is with the landowners. (45) Then as to the case of waters overlying private land, the court decided that they are subject to the public trust: "[t]he doctrine exists independent of any statute. Thus, while we regard the public trust doctrine and [statutory water law] as having shared principles, the [statutory water law] does not supplant the scope of the public trust doctrine." (46) Parks establishes the doctrine as an integral part of the State's...