The Local Public Trust Doctrine

• Author: Sean Lyness
• Position: Faculty Fellow, New England Law, Boston
• Pages: 1-32

ARTICLES

The Local Public Trust Doctrine

SEAN LYNESS*

ABSTRACT

The public trust doctrine is a potent common law doctrine that places obliga-

tions on government to maintain and preserve certain natural resources. For

decades, academics and advocates alike have mined the doctrine for answers to

pressing environmental problems. But missing from the public trust doctrine’s

robust literature is any attention to the role of local governments. This Article

seeks to fill that gap by situating the public trust doctrine as dependent, at least

in part, on local governments for its practical effect. Indeed, the way many citi-

zens experience the public trust doctrine is influenced by local governments. I

call this phenomenon the local public trust doctrine.

This Article makes two contributions. First, it examines and catalogs three inter-

related roles through which local governments impact the doctrine: (1) local gov-

ernment as landowner; (2) local government as regulator; and (3) local

government as enforcer. Each role demonstrates the largely unexplored extent of

local government’s impact on the everyday realities of the public trust doctrine.

Second, this Article offers explanations for why the public trust doctrine is so

susceptible to local governments’ influence. It concludes that the very nature of

the public trust doctrine—its changing legal foundations, its inherent flexibility,

and its situs between public and private rights—renders the doctrine uniquely

prone to local government influence. The Article concludes by offering a series

of recommendations for governments, advocates, and scholars to better under-

stand and employ the local public trust doctrine.

TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. The Public Trust Doctrine, Generally Speaking . . . . . . . . . . . . . . . . . . . 6

* Faculty Fellow, New England Law, Boston. © 2022, Sean Lyness. This Article owes a great debt to

the February 2021 Online Environmental Workshop, including thoughtful comments by Michael

Pappas, Joshua Galperin, Sarah Fox, Inga Caldwell, Kerrigan Bork, Jason Czarnezki, Katrina Kuh,

Heather Payne, and Robin Kundis Craig.

1

A. Common to Common Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B. A State-Specific Matter? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

II. Local Authority Over the Public Trust . . . . . . . . . . . . . . . . . . . . . . . . . . 11

III. Evidence of the Local Public Trust Doctrine . . . . . . . . . . . . . . . . . . . . . 14

A. Local Government as Landowner . . . . . . . . . . . . . . . . . . . . . . . . . 14

B. Local Government as Regulator . . . . . . . . . . . . . . . . . . . . . . . . . . 17

C. Local Government as Enforcer . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

1. Acknowledged Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . 20

2. Evidence of Local Government Enforcement . . . . . . . . . . . . . 21

IV. The Public Trust Doctrine is Uniquely Susceptible to Local Government

Influence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

A. Changing Foundations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

B. Purposefully Malleable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

C. Conflicts Over the Doctrine Occur in the Province of Local

Governments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

D. Rhode Island’s Public Trust Doctrine: A Case in Point. . . . . . . . . . 29

V. Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

INTRODUCTION

On a Saturday in mid-September 1977, six members of a sportfishing group

combed a Westerly, Rhode Island beach for trash.

1

It was their “organization’s

eighteenth annual observance of ‘National Beach Cleanup week.’”

2

As they col-

lected debris and refuse, the members walked along the beach close to the

Atlantic Ocean’s shoreline.

3

They were joined in this effort by Park Police from

the state environmental agency, the Department of Environmental Management.

4

Imagine their collective surprise, then, when a shoreline property owner, appa-

rently not keen on having what he believed to be his property cleaned, stopped

them and insisted that they were trespassing.

5

Answering the property owner’s

call, a Westerly police department patrolman arrived at the contentious scene.

6

The property owner explained his belief that his property extended to the mean

high tide line—conveniently marked with a stake, but at that time, well under-

water.

7

The sportfishing members demurred, explaining that they had a state

1. See State v. Ibbison, Appellee’s Br. at 1 (Feb. 24, 1982) (on file with author).

2. Id.

3. Id.

4. Id.; see also Law Enforcement, DEM RHODE ISLAND, http://www.dem.ri.gov/programs/law/ (last

visited Jan. 13, 2022).

5. See State v. Ibbison, 448 A.2d 728, 729 (R.I. 1982); State v. Ibbison, Appellee’s Br. at 1 (Feb. 24,

1982) (on file with author).

6. See Ibbison, 448 A.2d at 729; State v. Ibbison, Appellant’s Br. at 2 (Oct. 14, 1981) (on file with

author).

7. Ibbison, 448 A.2d at 729–30; State v. Ibbison, Appellee’s Br. at 1 (Feb. 24, 1982) (on file with

author).

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constitutional right to walk on the shore up to the high-water mark.

8

It is unclear

whether the state environmental agency officials took action or a position.

9

The patrolman agreed with the property owner and instructed the sportfishing

members that the land above the mean high tide line was off limits.

10

The sportfishing members persisted in their belief that they had a right to walk

on the shore up to the high-water mark; accordingly, they defied the patrolman’s

instructions and continued their clean-up, proceeding below the high-water mark

but necessarily above the submerged mean high tide line.

11

All six sportfishing members were arrested and charged with violating the

Town of Westerly’s trespassing ordinance.

12

After a dizzying back and forth—

convicted in District Court, vindicated in Superior Court, and then rebuffed on

the public trust issue at the Supreme Court—the seven sportfishing members ulti-

mately had their convictions dismissed on due process grounds.

13

This case—State v. Ibbison—is a watershed moment in the development of

Rhode Island’s public trust doctrine.

14

As a general matter, the public trust doc-

trine holds that certain resources are held in trust by the state for the benefit of the

public.

15

It entrusts the state with the responsibility to prevent the impairment of

those public trust resources.

16

Although some courts still treat the public trust

doctrine as a singular doctrine,

17

most judges and academics alike acknowledge

that there is no one public trust doctrine, but instead, many state-specific public

trust doctrines.

18

In stark relief, the Ibbison case presents a less acknowledged truth: the potent

impact of local governments

19

on the public trust doctrine. Indeed, for the

8. See Ibbison, 448 A.2d at 729; State v. Ibbison, Appellee’s Br. at 1 (Feb. 24, 1982) (on file with

author).

9. See State v. Ibbison, Appellee’s Br. at 1 (Feb. 24, 1982) (on file with author).

10. See State v. Ibbison, Appellant’s Br. at 2 (Oct. 14, 1981) (on file with author).

11. See id.

12. Ibbison, 448 A.2d at 729, 730–31.

13. Id. at 729, 733.

14. 448 A.2d 728 (R.I. 1982); See, e.g., Hall v. Nascimento, 594 A.2d 874, 877 (R.I. 1991) (citing

Ibbison, 448 A.2d at 730, 732–33) (defining Rhode Island’s public trust doctrine).

15. See, e.g., Ill. Cent. R.R. Co. v. Illinois, 146 U.S. 387, 458 (1892); see also Charles F. Wilkinson,

The Headwaters of the Public Trust: Some of the Traditional Doctrine, 19 ENV’T L. 425, 426 (1989).

16. See Wilkinson, supra note 15, at 452 (noting that the Supreme Court in Ill. Cent. “left no doubt

that the traditional public trust doctrine imposes obligations on the states”).

17. See, e.g., Matthews v. Bay Head Imp. Ass’n, 471 A.2d 355, 316–22 (N.J. 1984) (examining the

public trust doctrine as a matter of common law).

18. See Wilkinson, supra note 15, at 425 (noting the fifty-one different public trust doctrines); see

also Robin Kundis Craig, A Comparative Guide to the Eastern Public Trust Doctrines: Classification of

States, Property Rights, and State Summaries, 16 PENN. STATE ENV’T L. REV. 1, 2–3 (2007) (noting the

tendency to either “generalize all public trust law into a single doctrine” or “view each state’s public

trust doctrine as unique”) [hereinafter Craig (Eastern)]; Robin Kundis Craig, A Comparative Guide to

the Western States’ Public Trust Doctrines: Public Values, Private Rights, and the Evolution Toward an

Ecological Public Trust, 37 ECOLOGY L. Q. 53 (2010).

19. This Article uses the terms “local government” and “municipality” interchangeably. The terms

are intended to encompass sub-state governing entities that have authority to enforce and regulate

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