THE PUBLIC TRUST DOCTRINE AND ENVIRONMENTAL RIGHTS INITIATIVES: A TECTONIC SHIFT IN COLORADO PROPERTY RIGHTS IN NATURAL RESOURCES?
| Jurisdiction | United States |
Burns, Figa & Will, P.C.
Greenwood Village, Colorado
Copyright © 2016 by Rocky Mountain Mineral Law Foundation; Stephen J. Leonhardt, Steven M. Nagy, Morgan L. Figuers
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I. Introduction
In recent years, a series of ballot initiatives have been proposed to amend the Colorado Constitution with variants of a public trust doctrine.1 Imposing a public trust doctrine would generally obligate the state to hold certain natural resources in trust for the public and manage these resources a trustee. Many of these ballot initiatives also would expressly, or might implicitly, require state agencies and courts, in fulfilling their trustee duties to implement the amendments, to establish new public property rights in natural resources that are currently private property or could become private property. Former private rights in these natural resources could be reconsidered, limited, or even extinguished. Such changes could cause a tectonic shift in Colorado property law.
In voting on these initiatives, voters might understandably struggle to understand the extent of the potential shift in property law. This is because the public trust doctrine can vary widely in its effects, depending on how it is enacted and implemented. Seemingly slight variations in definitions, enforcement mechanisms, and the scope of the public trust over different natural resources could significantly alter the effects of a ballot initiative. Most of the proposed ballot initiatives discussed in this article contain such variations, even though all generally concern a public trust and purport to protect the environment. As Colorado Supreme Court Justice Gregory Hobbs cautioned about one such initiative, "[v]oters could favor this amendment out of solicitude for protecting the environment ... without
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realizing that the initiative proposes a fundamental transformation of property law ...."2
The public trust doctrine can cause this fundamental transformation in property law because it is has become an amorphous legal concept.3 The doctrine traditionally applied to harbors and navigable waters; it required the state to hold these harbors and waters in trust for public use. In that limited context, the public trust has existed alongside private property in natural resources. Modern variations of the public trust doctrine, however, often extend a public trust to virtually all waters, other natural resources, and/or over the environment as a whole.4 One recent proposed initiative in Colorado, discussed later in this article, would have extended the public trust to include all of the environment, even scenery.
This article explores the effect that the public trust doctrine would have on property rights in Colorado. It begins by tracing the history of the public trust doctrine, then explores the effects of public trust-related environmental rights laws or constitutional provisions in other states, and then examines the tectonic shift in property rights that these public trust ballot initiatives could cause in Colorado. It builds on a previous article that analyzed the impacts of proposed public trust initiatives on Colorado water law5 by examining how the recent public trust initiatives would affect private property rights in water, minerals and other natural resources.
II. A Concise History of the Public Trust Doctrine
As it now exists, the public trust doctrine is not a doctrine in the sense that it is a set of policies, principles, or canons.6 Rather, the phrase "public trust doctrine" is used to describe a number of different policies and laws relating to management of natural resources and the environment.7 These policies and laws generally follow a concept that certain natural and environmental resources should be held in a type of trust for public use, usually managed by a government entity for protective purposes.8 This
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concept could require expanded public ownership and oversight of property rights in natural resources and the environment. In some circumstances, this could shift some private property into public ownership or subject to it public management.
While modern forms of the public trust doctrine tend to shift private property into public ownership, the traditional public trust doctrine, at least in the United States, applied to property--navigable waters--that had never been private.9 Early American courts recognized that the traditional public trust doctrine constrained what the government could do with the public trust property by protecting the public against improvident government decisions to sell or impair the land that it held in trust.10 It also served to resolve the related problems of "disputes among the many sharing use of a public good" and "from exclusionary efforts by the Crown for its own or its favorites' benefit."11 In other words, the public trust doctrine limited the government's authority "to ensure against private expropriation and monopolization."12 In contrast, modern forms of the public trust doctrine are developing to potentially subject private property to government management, oversight, or ownership.13
A. The Traditional Public Trust Doctrine
In the United States, the traditional public trust doctrine applied to navigable waterways.14 The title to navigable waterways passed from England to the original states or the federal government after the Revolutionary War, and then passed from the federal government to later-
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formed western states at the time of statehood.15 The states then held title to these waterways for the benefit of the public, and the public had a right to use the waterways for navigation, commerce, and fishing.16
In 1869, a controversy over the extent of a state's authority over navigable waterways arose when Illinois granted, and then revoked, title to a harbor to a private company. This well-known controversy reached the U.S. Supreme Court, which issued an extensive opinion about the state's authority over navigable waterways in Illinois Central Railroad Co. v. Illinois.17
The U.S. Supreme Court first distinguished between types of property held by a state, which by the 1860s included title to navigable waterways, land granted through state enabling acts, and land grants from other statutory programs.18 It held that the title to navigable waterways "is a title different in character" from lands that a state acquired from other lands.19 The title to navigable waterways was "a title held in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein, freed from the obstruction or interference of private parties."20
The Supreme Court explained that the reason the state acquired title to the navigable waterways was "by virtue of its sovereignty."21 Because the state derived its sovereignty from the people, and it was in the interest of the people to preserve navigable waterways, the people surrendered the right to title of the navigable waterways to the sovereign for management.22 The Supreme Court cited the following reasoning:
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When the Revolution took place the people of each state 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. 23
Based on this management authority over the trust, the Supreme Court held that a state must "preserve such waters for the use of the public."24 A state could not alienate title to navigable waters, with few exceptions.25 Rather, the state must preserve the "sea and navigable rivers" as "natural highways."26 A state could not allow "any obstruction to the common right, or exclusive appropriation of their use," because that would be "injurious to commerce, and, if permitted at the will of the sovereign, would be very likely to end in materially crippling, if not de[s]troying, it."27 In short:
[T]he State holds the title to the lands under the navigable waters ... in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties. 28
Much has been written about the history and politics behind the Illinois Central holding.29 Most relevant to this article and to Colorado's history, one theory explaining the decision is that it was influenced by Justice Field's Jacksonian-Democratic ideology against monopolies.30 By the late 1800s, a major political fear was that corporate and special-interest
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monopolies would control and stifle the market, to the detriment of individuals.31 Some argue that Justice Field's opinion reflects this concept. He appears opposed to the government granting a monopoly over a harbor to a company, but not opposed to smaller grants of land for the construction of wharves and docks, which promoted economic development consistent with the public interest.32 A few years later, the California Supreme Court also concluded that an anti-monopoly sentiment influenced the Illinois Central decision.33
B. State and Federal Law Aspects of the Public Trust Doctrine
After Illinois Central, one lingering controversy was whether the scope of the public trust was a matter of state or federal law, or both.34 The U.S. Supreme Court resolved this controversy in 2012 by holding that navigability is a matter of federal law and the public trust doctrine is a matter of state law.35 Once waters meet the federal definition of navigable, states have the power to determine the scope of the public trust over those...
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