THE FEDERAL PUBLIC TRUST DOCTRINE OF ILLINOIS CENTRAL: THE MISUNDERSTOOD LEGACY OF APPLEBY V. CITY OF NEW YORK.

• Author: Smith, Michael Benjamin

1. Introduction 516 11. The Public Trust Doctrine 520 A. The Public Trust Doctrine and the States 522 B. The Public Trust Doctrine and the Federal Government 524 III. Illinois Central Railroad Co. v. Illinois 526 A. Background o/Illinois Central 527 B. Illinois Central's General Rule and Its Two Exceptions 528 IV. Background of Appleby v. City of New York 529 A. The Disputed Parcels of Appleby v. City of New York 529 B. The New York State Court Decisions 533 V. The Appleby v. City of New York Opinion 535 A. The Analysis and Conclusion of Appleby v. City of New York 536 B. Chief Justice Taft's Analysis and Application of Illinois Central 538 1. Appleby's Deeds and the Illinois Central Exceptions 538 2. Illinois Central as "a statement of Illinois law" 539 VI. The Aftermath of Appleby v. City of New York 542 A. Idaho v. Coeur dAlene Tribe of Idaho 542 B. PPL Montana v. Montana 543 C. Lower Federal Court and State Court Cases 545 VII. Conclusion 547 I. INTRODUCTION

   For plaintiffs suing the federal government alleging breach of its fiduciary obligations toward the environment, the continuing vitality of the public trust doctrine may hinge on whether courts conclude that it is exclusively a state law doctrine or also applies to the federal government. The contrasting fates of two nearly identical lawsuits illustrate this point.

   In Alec L. v. Jackson (Alec I), (1) a 2012 D.C. District Court case, a group of youth plaintiffs sued the U.S. federal government for its alleged failure to prevent and reduce greenhouse gas emissions. (2) The plaintiffs argued that the planet is nearing the tipping point of a climate catastrophe and that, unless federal officials took "immediate extraordinary action" to protect the atmosphere, the planet soon would be largely unfit for human life. (3) Seeking to "ensure their rights to a livable future," the plaintiffs asserted that the government had violated its affirmative fiduciary obligation under the "federal public trust doctrine" to protect the atmosphere, a public trust resource. (4) The federal government, the plaintiffs argued, is a co-trustee of the atmosphere, with a corresponding obligation under the public trust doctrine to reduce the country's equitable share of carbon emissions. (5)

   The threshold issue was whether the plaintiffs had properly invoked the court's jurisdiction. (6) For the district court, the answer turned on whether the plaintiffs' public trust claim was grounded in "state or federal common law" (7)--in other words, whether the public trust doctrine applied at all to the federal government.

   The Alec I plaintiffs argued that the public trust doctrine "is an attribute of sovereignty that cannot be abrogated." (8) The D.C. District Court, however, concluded that the U.S. Supreme Court's then-recent decision in PPL Montana, LLC v. Montana (9) foreclosed the plaintiffs' assertion that the public trust doctrine applies to the federal government. (10) The district court relied on PPL Montana's cursory statement that "the public trust doctrine remains a matter of state law," (11) without addressing whether--as the plaintiffs asserted--that statement was merely dictum. (12) The district court considered PPL Montana authoritative either way because the court was generally bound by "carefully considered language of the Supreme Court, even if technically dictum." (13) Consequently, the court concluded that the plaintiffs had failed to raise a federal question necessary to invoke the court's jurisdiction, and dismissed the case. (14)

   In a brief, unpublished opinion two years later, the D.C. Circuit affirmed the lower court's decision. (15) In Alec L. ex rel. Loorz v. McCarthy (Alec IT), the circuit court restated PPL Montana's declaration that the public trust doctrine "remains a matter of state law." (16) The circuit court cited additional Supreme Court cases in support of that same conclusion, including Idaho v. Coeur dAlene Tribe of Idaho (11) which, the circuit court determined, also treated the public trust doctrine "as a matter of state law." (18) Relying on these cases and holding that the public trust doctrine does not apply to the federal government, the circuit court summarily affirmed the lower court's dismissal. (19)

   Two years after Alec II, youth plaintiffs in Juliana v. United States (20) brought a nearly identical case in the U.S. District Court for the District of Oregon, this time with a different result. In Juliana, Judge Ann Aiken reviewed the same Supreme Court cases on which the D.C. courts had relied, but nonetheless concluded that the plaintiffs' public trust claim invoked federal subject matter jurisdiction. (21) Judge Aiken examined PPL Montana's "passing statement" suggesting that the public trust doctrine applies only to the states (22) and concluded that PPL Montana, which was "not a public trust case," could not plausibly be interpreted as foreclosing federal public trust claims with respect to federally owned trust assets. (23) Judge Aiken observed that PPL Montana had relied on two prior Supreme Court cases that seemed to narrow the holding of Illinois Central Railroad Co. v. Illinois, (24) a seminal public trust case on which the Juliana plaintiffs relied. (25) In Illinois Central the Supreme Court had ruled invalid the Illinois legislature's attempt to convey nearly the entirety of the Lake Michigan waterfront to a private developer, holding that such a grant would violate the state's sovereign trust obligation. (26) The PPL Montana Court stated that two subsequent cases, Coeur d'Alene and Appleby v. City of New York (Appleby IV), (21) concluded that Illinois Central "was necessarily a statement of Illinois law" and therefore did not support the existence of a federal public trust doctrine. (28) (In fact, Coeur dAlene and Appleby IV contain identical language, because Coeur dAlene was quoting Appleby IV. (29)) Because Judge Aiken found PPL Montana and Coeur dAlene unpersuasive on other grounds, (30) she never examined whether those cases properly relied on Appleby IV's statement that Illinois Central "was necessarily a statement of Illinois law" (31) for their conclusions that the public trust doctrine does not apply to the federal government.

   Judge Aiken thus sidestepped the pitfall of the Alec I and Alec II courts, which relied heavily on Supreme Court dicta in holding that the public trust doctrine is exclusively a matter of state law. The Alec /court regarded PPL Montana's public trust discussion as "carefully considered language of the Supreme Court," and therefore authoritative even if dictum. (32) This Comment argues that Supreme Court dictum relying on Appleby IV for the proposition that Illinois Central "was necessarily a statement of Illinois law" was not, in fact, "carefully considered," and therefore merits no such deference. No court that has cited Appleby IV, including the U.S. Supreme Court, has expressly recognized that Appleby TVs discussion of Illinois Central was dictum or discussed in detail the Appleby IV opinion. (33) Moreover, close reading of Appleby TV supports the conclusion that the public trust doctrine recognized in Illinois Central binds all sovereigns, including the federal government. (34)

   Part II of this Comment introduces the basic principles of the public trust doctrine and its application. Part III reviews the background of Illinois Central and explains its holding. Part IV reviews the background of the Appleby IV dispute and the New York State court decisions leading to Chief Justice Taft's Appleby TV opinion. Part V analyzes Chief Justice Taft's reasoning in Appleby IV and explains why the case cannot plausibly support the conclusion that Illinois Central was merely "a statement of Illinois law." Part VI examines both later Supreme Court dicta that mischaracterizes Appleby TV, and lower federal court and state court decisions that have relied on that dicta. This Comment concludes that a more complete understanding of Appleby IV will dissuade courts from improperly relying on that case and on ensuing Supreme Court dicta: Illinois Central and Appleby /Vboth support the conclusion that plaintiffs who assert public trust claims against the federal government properly invoke federal subject matter jurisdiction.

2. THE PUBLIC TRUST DOCTRINE

   The public trust doctrine imposes obligations on governments in their exercise of sovereign power over property and resources of great public value. (35) The doctrine's roots lie in the Institutes of Justinian, part of the body of ancient Roman law that became the "foundation for modern civil law systems." (36) The Institutes of Justinian declared that "[b]y the law of nature these things are common to mankind--the air, running water, the sea, and consequently the shores of the sea." (37) Common-law courts in England adopted the doctrine, (38) and it received judicial recognition in the United States by the early 1800s. (39) The public trust doctrine incorporates basic trust principles, which impose fiduciary duties on a trustee (40) to "protect the trust property against damage or destruction" (41) and to hold and administer the property for the benefit of a third-party beneficiary. (42) Under the public trust doctrine, a government--trustee holds public trust property for the public-beneficiary: the property must be "devoted to the fulfillment of the purposes of the trust, to wit: the service of the people." (43) Courts consistently apply the public trust doctrine to state actors, but are split over whether the doctrine also applies to the federal government.

   1. The Public Trust Doctrine and the States

      That states function as trustees under the public trust doctrine is well established, (44) and the "contours" of that trust are determined by the states. (45) To begin with, the scope of the property (or res) to which the public trust doctrine applies varies by jurisdiction, albeit with broad consistencies. Courts have consistently recognized that the trust...