Oil and the Public Trust Doctrine in Washington

• Publication year: 1991

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 14, No. 3SPRING 1991

ARTICLE

Oil and the Public Trust Doctrine in Washington

Ralph W. Johnson(fn*)

I. Introduction

The tragic spill of millions of gallons of oil into Alaska's Prince William Sound alerted the people of Washington to the danger of spills in Puget Sound.(fn1) In Washington, the danger heightens as the amount of oil transported through the Sound increases. Indeed, Coast Guard figures show about 1,500 tanker movements in Puget Sound in 1988, a 50 percent increase over 1974.(fn2) Moreover, the spill from the Exxon Valdez taught us that, because very little can be done after a spill,(fn3) the only truly effective means of preventing damage from oil spills is to prevent them in the first place.

This Article proposes a unique source of prevention: the public trust doctrine. The public trust doctrine dates from ancient times and protects the public interest in navigation, commerce, and fisheries.(fn4) The trust gives to the public an easement-like interest,(fn5) which predates all private ownership,(fn6) in the protected resources. The fundamental resources to which the public trust applies are navigable waters, their tributaries, and their beds.(fn7) However, state courts are now expanding the doctrine to protect the public's interest in recreation,(fn8) wildlife habitat,(fn9) and water-quality management.(fn10) The doctrine is both a source of, and a limitation upon, legislative and administrative power over the protected resources. The doctrine also provides common law remedies to the state as well as to private citizens, beyond existing statutes, for threats or damage to public trust resources.(fn11)

During the past 15 years, in half the United States, more than 100 reported cases involving the public trust doctrine have had a major impact on natural resources protection.(fn12) In Washington, two key cases decided in 1987 give major support to the public trust doctrine. In Caminiti v. Boyle,(fn13) the court affirmed that the public trust doctrine is the law of this state and always has been. In Orion Corporation v. State(fn14) the court upheld the classification of private tidelands as open space and stated that classification that prohibits fill for residential housing and development raises no constitutional question because tidelands have always been subject to the burden of the public trust.(fn15) Thus no "taking" occurred for such classification.(fn16) The court further indicated that the doctrine would be construed liberally in this state. Thus, as the decisions in Caminiti and Orion make clear, Washington is establishing a pattern of reliance on the public trust doctrine.

II. Historical Origins of the Public Trust Doctrine

The public trust doctrine originated from the widespread public practice, dating from ancient times, of using navigable waters as public highways for navigation, commerce, and fisheries. The earliest articulation of the doctrine is sometimes attributed to the Institutes of Justinian of 533 A.D., which provided that the doctrine applied to the air, running water, the sea, and the seashores.(fn17)

In England, the doctrine was well established by the time of the Magna Carta.(fn18) Leading English court decisions(fn19) recognized that the Crown held the beds of navigable waters in trust for the people for navigation,(fn20) commerce, and fisheries.(fn21) Even the Crown could not destroy this trust.(fn22)

A. Early Applications of the Public Trust Doctrine in the United States

The public trust doctrine was recognized and upheld in the United States as early 1821 in the case of Arnold v. Mundy.(fn23) In Mundy, the New Jersey court declared the trust as we know it today. The dispute concerned an oyster bed that was part of a conveyance from the King of England prior to statehood. Conveyances eventually led to Arnold's ownership and use of the area as a private oyster bed. This exclusive use was challenged by Mundy, who insisted that the public had a right to take oysters in this area as it had done for many years. The court ruled in favor of Mundy, giving the first clear formulation to the doctrine, saying that under natural law, civil law, and common law, the navigable rivers in which the tide ebbs and flows and the beds and waters of the seacoast are held by the sovereign in trust for the people.(fn24)

The court stated that the states, being sovereign governments, had succeeded to the English trust which was held by the Crown and that a grant purporting to divest the citizens of these common rights was void. The court held that the people, through their government, may regulate public trust resources by building ports, basins, docks, wharves, dams, locks and bridges, by reclaiming land, and by improving fishing places. However, the sovereign power itself "cannot . . . make a direct and absolute grant of the waters of the state, divesting all the citizens of their common right."(fn25)

Seventy years later the United States Supreme Court built upon the principles articulated in Mundy and used the public trust doctrine to invalidate one of the more outrageous land giveaways of the nineteenth century.(fn26) In 1869 the Illinois legislature deeded the bed of Lake Michigan along the entire Chicago waterfront to the Illinois Central Railroad. In 1873 the legislature apparently suffered pangs of conscience and repealed the grant. Ten years later the state sued in state court to establish the invalidity of the Railroad's continued assertion of ownership over the harbor bed.(fn27) The United States Supreme Court held the revocation valid, saying that a grant of all the lands under navigable waters of a state was "if not void on its face, . . . subject to revocation." The state cannot "abdicate its trust over property in which the whole people are interested . . . [any more than it can] . . . abdicate its police powers."(fn28)

Mundy and Illinois Central establish that the public trust doctrine is part of the common law of the United States, and that it is a powerful doctrine. These cases hold that legislatures will be held to a high standard, a trust-like standard, with regard to these resources. The language of the two opinions suggests that the public trust doctrine may be strong enough even to limit legislative power. At the least the doctrine establishes a potent rule of construction requiring that legislatures conveying away or changing the status of public trust resources must do so explicitly.

B. The Development of the Public Trust Doctrine as a State Law Doctrine

The public trust doctrine has become increasingly attractive to the courts and has now been applied in most states.(fn29) Needless to say, its scope is different in various states, not so much because some states reject the doctrine, but because courts only respond to cases that are brought before them.

Charles Wilkinson argues persuasively that the public trust doctrine "is rooted in the commerce clause and became binding on new states at statehood."(fn30) For more than 150 years, he says, "the Supreme Court has consistently given a constitutional cast to state and federal prerogatives and obligations with regard to waters navigable for title, due ultimately to the key role of these watercourses in the country's commerce and society and in the formation of the national government."(fn31)

The federal courts, however, have had little occasion to define the parameters of the doctrine, with the exception of Illinois Central Railroad Co. v. Illinois.(fn32) Hence, the task of defining the scope of the doctrine has been left largely to state courts. California and Massachusetts developed the doctrine more extensively than most states with Wisconsin, Minnesota, New Jersey, Washington, Michigan, and a few other states not far behind. The doctrine has not been totally rejected in any state, although its application varies state by state and its application to particular facts has been denied.

One of the most important functions of the doctrine is to define private property rights that are the subject of police power regulation.(fn33) Reliance on the doctrine can occur by explicit legislative language(fn34) or by implication.(fn35)

III. The Scope of the Public Trust Doctrine: A National Survey

A. The Initial Protection: Navigable Waters

In England the doctrine was applied primarily to the bed of the sea and to tidelands.(fn36) The United States, by contrast, has large navigable rivers such as the Mississippi and Columbia Rivers flowing inland for hundreds of miles. Not surprisingly, the United States courts extended the doctrine to cover navigable fresh waters.(fn37) Thus, in this country, the doctrine covers all waters "navigable in fact," whether fresh or salt.

Navigability for title is determined as of the date the state entered the union.(fn38) Under the equal footing(fn39) doctrine the title to the beds of all navigable waters, fresh or salt, automatically went to each state at statehood. Prior to statehood the federal government held title to these lands, which were chiefly valuable for "commerce, navigation, and fisheries . . . in trust for the future states."(fn40) The government could convey these beds away only in case of some "international duty or public exigency."(fn41) Just as the original thirteen states held title to the beds of navigable waters, so must each...