The federal public trust doctrine: misinterpreting Justice Kennedy and Illinois Central Railroad.

Author:Blumm, Michael C.
Position:Developments in the Public Trust

    Alec L. v. Jackson (Alec. Li), (1) a 2012 decision of the federal district court for the District of Columbia, rejected the children plaintiffs' argument that the public trust doctrine imposed a fiduciary duty on the federal government to take action to prevent the emission of unsafe amounts of greenhouse gas emissions into the atmosphere. (2) The court's opinion relied heavily on the Supreme Court's decision in PPL Montana, L.L.C. v. Montana (PPL Montana (3)) for the proposition that the public trust doctrine is exclusively a matter of state law, inapplicable to the federal government. (4) Thus, the district court concluded that the children failed to raise a federal question sufficient to invoke the court's jurisdiction. (5)

    The D.C. Circuit affirmed in a brief, unreflective, unpublished opinion on the same grounds. (6) These decisions might convince other courts that the public trust doctrine has no applicability to the federal government, not only in the case of greenhouse gas emissions but also in other areas of federal preeminence like public lands management, ocean governance, and wetlands protection. (7)

    This Article maintains that the D.C. courts misinterpreted the scope of the public trust doctrine in the Alec L. cases by failing to understand the limited nature of Justice Kennedy's dicta in his PPL Montana opinion. Kennedy's interpretation of the source and significance of the public trust doctrine was unassailable, (8) but the D.C. courts' extrapolation of his opinion--concluding that he denied the applicability of the doctrine to the federal government (9)--was more than the PPL Montana opinion said and inconsistent with the origin and practical effect of the public trust doctrine. The public trust doctrine, properly understood, is an inherent limit on all sovereigns--not merely state sovereigns. Some recent decisions recognize this fact, (10) and nothing in Justice Kennedy's PPL Montana opinion is inconsistent with such an interpretation.

    Admittedly, dicta in some Supreme Court opinions have suggested that the public trust doctrine is of state law origin (11) but, upon close

    examination, these statements have no real basis in fact. On the other hand, there is considerable precedent applying the public trust doctrine to the federal government, particularly to public land management, (12) and there is ample evidence that Congress intended the doctrine to be more widely applied than the courts have thus far recognized. (13).

    The mistake of the D.C. courts was, in part, their failure to carefully examine the so-called lodestar case (14) of the public trust doctrine, Illinois Central Railroad v Illinois, (115) (Illinois Central) an 1892 opinion written by Justice Stephen J. Field, the longest serving justice of the nineteenth century. (16) A close look at Illinois Central reveals that the decision had no state law basis, (17) despite the unreasoned dicta in later Supreme Court cases, which claimed that it did. (18) If, as we maintain, the Supreme Court grounded its Illinois Central decision in federal law, the D.C. courts' rationale in Alee L. is flawed and should not prevail in other circuits or in the Supreme Court.

    We reexamine the basis of the federal public trust doctrine in this Article. Part II considers Justice Kennedy's statements about the nature of the public trust in PPL Montana and in his earlier 1997 opinion in Idaho v. Coeur d'Alene Tribe. (19) Part III briefly unpacks the seminal Illinois Central case, in which the Court used the public trust doctrine to strike down an attempted privatization of the inner Chicago Harbor. Although that decision was the subject of a comprehensive historical analysis a decade ago, (20) that analysis did not attempt to locate the source of the public trust doctrine that the Court employed. (21)

    Part IV proceeds to describe the ensuing judicial interpretation of Illinois Central, upon which Justice Kennedy relied, and which we claim amounts to mere conclusory dicta. Part IV also explains that most states have interpreted Illinois Central in stark contrast to the Supreme Court's dicta, since most state courts consider the case to establish binding federal law. Part V discusses why statutory displacement--which the Supreme Court recently applied in the case of common law nuisance--cannot credibly be applied to the public trust doctrine. Part VI considers both Supreme Court case law and congressional statutes recognizing the federal public trust doctrine. We conclude that the D.C. courts' assumption that there is no federal public trust doctrine is neither supported by Justice Kennedy's opinions nor a fair reading of Illinois Central and should not be considered persuasive by other federal circuit courts of appeal or the Supreme Court.


    Justice Anthony Kennedy--whose votes often prove pivotal, (22) particularly in natural resources and environmental law (23)--has discussed the public trust doctrine in two cases, which both the D.C. District Court and the D.C. Circuit thought were determinative in the Alec L. cases. (24) We examine both of Kennedy's opinions in this Part.

    1. Idaho v. Coeur d'Alene Tribe

      The people of the Coeur d'Alene Tribe have lived in what is now the panhandle of Idaho for thousands of years, in an area extending from the southern end of Lake Pend Oreille in the north, to the North Fork of the Clearwater River in the south, between the Bitterroot Range of Montana in the east, and roughly to Spokane Falls in the west. (25) The center of the tribes' territory was Lake Coeur d'Alene, which, along with rivers like the St. Joe and the Spokane, provided tribal members with fishing for salmon, trout, and whitefish; they also hunted and gathered throughout the area. (26) An 1873 executive order signed by President Ulysses Grant established a reservation for the tribe, confining them to roughly 600,000 acres. (27) Ensuing congressional statutes reduced the tribe's reservation to 345,000 acres south of the town of Coeur d'Alene. (28)

      In 1991, the tribe filed suit, contesting the authority of the State of Idaho to regulate the fishing of tribal members on Lake Coeur d'Alene, claiming that a substantial part the bed of the lake was not owned by the state but instead was part of the tribe's reservation. (29) The tribe sought to quiet title to those submerged lands. (30) Rather than answer the complaint, the state filed a motion to dismiss, arguing that the Eleventh Amendment precluded federal jurisdiction in the case. (31) The district court granted the motion to dismiss, ruling that the tribe could not sue the state without the state's consent. (32) The Ninth Circuit affirmed the district court's dismissal but allowed the tribe's claim against state officials concerning future federal law violations. (33)

      The Supreme Court reversed the Ninth Circuit's decision on the tribe's ability to proceed against state officials and dismissed the claims, ruling that the tribe could not maintain its claim against the state or its officials, due to the state's immunity from suit under the Eleventh Amendment. (34) The case was an important Eleventh Amendment decision concerning state sovereign immunity. (35) But since the state's Eleventh Amendment immunity does not run against the federal government, (36) the federal government under the Clinton Administration, exercising its trust responsibilities, (37) decided to take up the tribe's claim in the wake of the Supreme Court's decision. (38) When the case eventually again reached the Supreme Court, (39) the tribe prevailed on the merits in a precariously close 5-4 vote. (40)

      Writing for the Court majority in the initial sovereign immunity decision, Justice Kennedy explained the close historical connection between ownership of submerged lands, like those under the navigable Lake Coeur d'Alene, and state sovereignty:

      The Court from an early date has acknowledged that the people of each of the Thirteen Colonies at the time of independence "became themselves sovereign; and in that character hold the absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution to the general government...." [T]he Court concluded that States entering the Union after 1789 did so on an "equal footing" with the original States and so have similar ownership over these "sovereign lands." In consequence of this rule, a State's title to these lands arises from the equal footing doctrine and is "conferred not by Congress but by the Constitution itself." The importance of these lands to state sovereignty explains our longstanding commitment to the principle that the United States is presumed to have held navigable waters in acquired territory for the ultimate benefit of future States and "that disposals during the territorial period are not lightly to be inferred, and should not be regarded as intended unless the intention was definitely declared or otherwise made very plain." ... The principle arises from ancient doctrines. (41) Justice Kennedy's 1997 opinion was significant because it reflected at least three important precepts. First, he explained the reason why there are special rules about navigable waters and their submerged lands: they "uniquely implicate sovereign interests," echoing the Illinois Central Court's recognition of interests that implicate important "public concerns." (42) These concerns would seem to be capable of responding to contemporary issues affecting trust resources. (43)

      Second, Justice...

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