Author:Manahan, Kacy
  1. INTRODUCTION 264 II. THE PUBLIC TRUST DOCTRINE 267 A. A Brief History of th.Nosee PTD in America 267 B. The PTD in State Constitutions 268 III. RECENT JUDICIAL ENFORCEMENT OF A CONSTITUTIONAL PUBLIC TRUST 269 A. Hawaii 270 1. Waiahole Ditch Decision 270 2. Kelly v. 1250 Oceanside Partners 274 B. Pennsylvania 275 1. Robinson Township v. Commonwealth 276 2. Pennsylvania Environmental Defense Foundation v. Commonwealth 277 C. Washington 279 1. Early Cases 280 2. Chelan Basin Conservancy v. GBl Holding Company 282 IV. "DORMANT" CONSTITUTIONAL PUBLIC TRUST LANGUAGE 284 A. Assertions of State Ownership, Public Navigation Rights, and Fishery Rights 284 1. California's "Always Attainable" Access 285 2. Virginia's Oyster Beds 288 B. Conservation Policies 292 1. Virginia's Conservation Policy 292 2. North Carolina's Policy to Preserve for the Benefit of Its Citizenry 295 C Recognition of Individual Rights to a Healthful En vironment 297 1. Illinois's Enforceable Right 298 2. Massachusetts's Environmental Rights as a Public- Purpose 302 V. CONCLUSION 305 I. INTRODUCTION

    The public trust doctrine (PTD) is a limitation on the power of the sovereign to privatize or destroy certain property and a guarantee of public access to certain resources. (1) The doctrine maintains that the public owns the trust property in common, and the government holds it in trust for public benefit. (2) As a precept touching on the powers of all three branches of government, it is hardly surprising that the PTD appears in the language of many state constitutions. (3) The government has a fiduciary duty to preserve the trust property for the purposes of the trust. (4) Courts often interpret these purposes to include uses like navigation, recreation, and ecosystem services. (5) All three branches of government carry out public trust duties depending on their role in making decisions concerning the corpus of the trust. (6) A constitutional PTD places courts in an enforcement role--delineating its scope and defining the duties of the sovereign. (7)

    Case law interpreting the PTD in the United States dates from the early nineteenth century to the present. For over 200 years, American PTD jurisprudence involved a steady stream of disputes concerning access to resources and title ownership of submerged lands based on common law interpretations of the doctrine. (8) However, the doctrine in its constitutional manifestation remained mostly dormant. (9)

    In America, framers of state constitutions largely modeled their efforts on the U.S. Constitution. (10) However, state constitutions are typically longer, more detailed, and address jurisdiction-specific issues. (11) State constitutions explicate the sovereign authority, often called the police power, reserved to the states and recognized in the Tenth Amendment of the U.S. Constitution. (12) The police power includes control of natural resources within a state, (13) at least where not preempted by federal law. (14)

    A number of states recognized the PTD in the language of their constitutions, primarily protecting public access to trust resources like waterways to promote navigation. (15) Newly-admitted and resource-rich states enshrined the doctrine in their constitutions as a conservation policy. (16) Some older states with resources in demand emphasized the doctrine by amending or revising their constitutions to limit environmental damage. (17) In recent years, PTD jurisprudence re-emerged in both common law and, as described in this Comment, as a constitutional limitation on state decision-making power. (18)

    This Comment analyzes how language in state constitutions recognizes the PTD, focusing on recent decisions and unexamined or under-examined constitutional provisions. Part II briefly explains the concept of the PTD and its place in select state constitutions. Part III examines recent groundbreaking constitutional interpretations of the PTD, focusing on the language recognizing the PTD and its structural implications. Part IV inspects state constitutional provisions incorporating the PTD that courts have yet to fully interpret. The Comment concludes that because the PTD is a limitation on the sovereign police power and because the courts play a role in interpreting and enforcing public trust duties, the PTD appears frequently in many state constitutions and is likely to play a more prominent role in the future, at least where state governments do not recognize the inherent limitations it imposes on their police powers.


    Before an in-depth examination of the constitutional PTD jurisprudence of select states, this discussion reviews the doctrine's role in American law. The reason why constitutional underpinnings serve a vital purpose in an enforceable PTD requires some explanation.

    1. A Brief History of the PTD in America

      The PTD traveled to America with the English colonists, who were, at the time, subjects of the Crown and ruled by English common law. (19) As colonies settled and began to self-govern, the PTD evolved independently within each jurisdiction. (20) This evolution continued through the Declaration of Independence (21) and ratification of the United States Constitution. (22) As new states joined the union, the PTD spread through ownership of the beds of navigable waters via the court-made yet constitutionally-based equal footing doctrine. (23) Therefore, the parameters of the PTD are varied. Most states base their PTD on the Supreme Court's ruling in Illinois Central Railroad Co. v. Illinois (24):

      It is the settled law of this country that the ownership of and dominion and sovereignty over lands covered by tide waters, within the limits of the several States, belong to the respective States within which they are found, with the consequent right to use or dispose of any portion thereof, when that can be done without substantial impairment of the interest of the public in the waters, and subject always to the paramount right of Congress to control their navigation so far as may be necessary for the regulation of commerce with foreign nations and among the States. (25) Typically, courts characterize the PTD as a common law doctrine, (26) perhaps due to its English origins; (27) however, the nature of the doctrine as a trust requires some judicial oversight. (28) A constitutional PTD allows courts to adopt a supervisory role that cannot be displaced by statute. (29) Therefore, a constitutional PTD allows the doctrine to function as a true trust--"the right, enforceable solely in equity, to the beneficial enjoyment of property to which another person holds the legal title; a property interest held by one person (the trustee) at the request of another (the settlor) for the benefit of a third party (the beneficiary)." (30) A court sitting in equity, therefore, may ensure the people's beneficial enjoyment of public trust resources despite legal title ownership in the state or a private transferee.

    2. The PTD in State Constitutions

      A constitutional PTD ensures equitable enforcement of a state's fiduciary obligations. (31) A traditional trust includes:

      (1) a trustee, who holds the trust property and is subject to duties to deal with it for the benefit of one or more others; (2) one or more beneficiaries, to whom and for whose benefit the trustee owes the duties with respect to the trust property; and (3) trust property, which is held by the trustee for the beneficiaries. (32) Trusts are judicially enforceable. (33) Explicit "terms of the trust" facilitate judicial enforcement. (34) Constitutional provisions ensure enforceability, because the legislature cannot easily displace them, (35) and they provide governing principles by adopting substantive values.

      The PTD, as embodied in state constitutions, typically appears in one of three forms: 1) an assertion of state ownership, public navigation rights, or fishery rights, (36) 2) a conservation policy, (37) and/or 3) a recognition of individual rights to a healthful environment. (38) The provisions in the first category are often the oldest, aiming to protect interests that were pressing in colonial or pre-industrial America. (39) The second and third categories often appear in constitutions ratified or amendments adopted in the mid-twentieth century, as resource depletion and public health concerns emerged into the political arena. (40) Some constitutional provisions do not fit neatly into one of the above categories, but otherwise clearly invoke the PTD. (41)


    In recent years, constitutional PTD jurisprudence has come roaring to life. Courts are reaffirming their role as the ultimate authority in interpreting constitutional public trust duties. This section provides a survey of three notable states--Hawaii, Pennsylvania, and Washington--all of which have renewed interpretations of the PTD via their constitutions.

    1. Hawaii

      Before Hawaii was a state, it was a kingdom. (42) The founder of the kingdom, Kamehameha I, held Hawaii's natural resources in trust for the people. (43) In 1973, the Supreme Court of Hawaii recognized the PTD as applicable to all water resources based on a sovereign reservation made during the Great Mahele of 1848. (44) After statehood, but prior to Hawaii's 1978 Constitutional Convention, the Supreme Court of Hawaii recognized the PTD as applied to land below the high-water mark. (45) On November 7, 1978, Hawaii ratified a new constitution that included substantial public trust language. (46) For example, Article XI, section 1 of Hawaii's Constitution states:

      For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii's natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the...

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