Towards environmental entrepreneurship: restoring the public trust doctrine in New York.

• Author: Benn, Michael Seth

INTRODUCTION

The public trust doctrine provides that government holds tide to certain lands and waterways in trust for the public benefit and public use. (1) While the common law doctrine varies from state to state, historically it "requires that ... trust land[s] be accessible and used for a public purpose; that [they] be put to ... uses appropriate to the resource; and, in some cases, that [they] not be sold." (2) It does not, however, foreclose the private lease and license of public lands; rather, it requires that such lands be utilized primarily for the public benefit, and only incidentally for private benefit. (3) Thus, fundamentally, the public trust doctrine incorporates a public use test.

The New York public trust doctrine, as it applies to public parkland, has nebulously defined "public benefit" and "public use" as a "park," in contrast to a "non-park," use. (4) In this Comment, I argue for a reformulation of the public trust doctrine in New York in consonance with the historical public use test, as defined by the United States Supreme Court most recently in Kelo v. City of New London (5) and New York state courts more than three decades ago in Yonkers Community Development Agency v. Morris. (6) Focusing specifically on New York City parks, I argue that a reformulated public trust doctrine will permit optimal public benefit from privatization of some green spaces. This public benefit will come in the form of revitalized green spaces, previously forsaken by municipal government. Further, a reformulated public trust doctrine will limit judicial intervention in this area to the courts' traditional role of striking down transactions in which government overreaches and attempts to transfer trust lands predominantly, not incidentally, for the benefit of private third parties. (7)

In New York, the public trust doctrine has developed on a case-by-case basis, with decisions alternately broadening or narrowing the definition of park use and thereby allowing either more or less opportunity for private use of public lands. (8) This sort of analysis not only creates uncertainty, but also fundamentally misses the point. The form of the public trust doctrine, broad or narrow, should depend on what courts will accept as a sufficient public benefit accruing from private control of lands held in public trust, not on what courts believe constitutes a park or non-park use. Thus, the doctrinal question should be how a jurisdiction's highest court and/or the United States Supreme Court define(s) public use and public benefit. (9) Seen through this lens, the public trust doctrine takes its cues from the Fifth Amendment's Takings Clause.

Part I of this Comment briefly traces the origin and evolution of the public trust doctrine in the United States. This discussion serves two purposes. First, it dispels the notion that the public trust doctrine is an inherently environmentalist doctrine. One may put the doctrine to environmentalist ends, but its historical origin is rooted in government encouragement of economic development. (10) Second, the discussion in Part I shows that the American public trust doctrine, as initially enunciated by the U.S. Supreme Court, incorporates the public use test.

Part II examines the Supreme Court's recent decision in Kelo and discusses its implications for reformulating New York's public trust doctrine with respect to parkland. Kelo's condoning of private-to-private takings turns on a cementing of the definition of "public use" as public purpose or benefit; this test coincides with the public use doctrine as developed by New York state courts three decades earlier in Morris. (11) While it creates a dilemma for private property rights advocates in the takings context, the broadened definition of public use is a practical test in the public trust context. It permits measured private development of public property for the benefit of the public, without hindering judicial authority to void, pursuant to the public trust doctrine, transfers made primarily for the benefit of private parties. In other words, the exception does not swallow the rule.

Part III reviews the major New York cases to show that the current doctrine is unworkable and concludes that a doctrinal move from park use to public use is necessary. A special focus is the Appellate Division's 2002 ruling in SFX Entertainment, Inc. v. City of New York, (12) which affirmed the decision of the New York Supreme Court (the trial court in that state) but rejected its reasoning. SFX is the latest in a line of New York cases alternately expanding and narrowing the definition of park/non-park use. This jurisprudential tension arises because the New York courts rely on the notion of park use rather than public use in framing the public trust doctrine. While puzzling under the park/non-park formulation, the outcome in SFX makes sense in light of the public use test.

Part IV examines some of the effects of reformulating, under the cover of Kelo, Morris, and the public use test, the public trust doctrine as applied to parkland in New York. While some might view such a move as the harbinger of a disastrous environmental scenario, equating economic development with public use need not sacrifice environmental aspirations. Thus, Part IV argues for a more systematic focus on long-term licensing and development of underutilized New York City parkland by private entrepreneurs in close partnership with the Department of Parks and Recreation, and with an emphasis on maximizing potential public enjoyment derived from the City's green spaces. While this reformulation of the public trust doctrine may appear to have very little to do with the environmental goals some view as traditionally associated with the doctrine, (13) its implementation in New York will allow for privatization and optimal public use of our parkland in environmentally and economically sound ways.

1. DOCTRINAL ORIGINS

   The public trust doctrine's origins show that it is not innately environmentalist. Further, early statements of the doctrine in American jurisprudence connect it with the public use test, thereby supporting the thesis that the public use test should be the rule with respect to the validity of a government's lease or license of public land to private parties.

   Scholars trace the origin of the public trust doctrine to Roman civil law and English common law. (14) The United States inherited the public trust doctrine from Great Britain. Before the American Revolution, the navigable waterways and lands underneath them belonged to the King, in trust for the people, to ensure unimpeded access for navigation and commerce. (15) After the Revolution, ownership of such property vested in the American people as a whole, (16) with each State holding title to such property within its borders in public trust. (17)

   The public trust doctrine is not inherently tied to environmentalist goals, (18) even though such goals may be consonant with the goal of managing public property for the public benefit. Rather, as one scholar has noted, "[t]he longer the doctrine is exposed to the light of analysis, the more it becomes clear that the term is truly political/legal in content, and philosophical/social in context." (19) As such, the doctrine evolves over tame. (20) Thus, while in recent years the doctrine has been a valuable tool for environmentalists and conservationists, nothing innate to the doctrine demands that it continue to be so used. (21)

   For much of its early existence in the United States, spanning the nineteenth and early twentieth centuries, the doctrine was the government's tool to "encourage and direct economic growth." (22) It "became a viable means for judicial allocation of valuable resources," and it was not considered odd for a court to find that "[t]he 'public good' might often best be served by the private development of trust property--by perhaps a railroad or pipeline company--even if that development disrupted the traditional public uses of the property." (23) Implicit in such an interpretation of the doctrine is the notion that the public benefit or public purpose (24) justifying use of trust lands may be equatable to economic development primarily for the public good.

   Permutations of the public trust doctrine vary from state to state. (25) As they have evolved over time, American versions of the doctrine generally pigeonhole land and bodies of water into two categories of property: "(1) that which is capable of transfer, in usual and ordinary course, to private ownership; and (2) that which is not and is to be held by government in a public trust for its constituents." (26) Historically, in America, the doctrine has focused on government ownership of waterways in fee simple. (27) Some states, however, including New York, have expanded the doctrine to include other "public resource[s] in which the community has a special interest." (28) For example, different variations of the doctrine encompass submerged lands (29) and public parks. (30)

   The federal rule, as set forth by the U.S. Supreme Court in Illinois Central Railroad Co. v. Illinois, (31) permits the transfer of trust lands only under very specific circumstances. The Court held that "control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining." (32) Only under these circumstances may the legislature alienate trust-protected property. Similarly, state courts, including those in New York, have held that government may transfer public trust property "so long as the grantee will place it into public service by executing a trust purpose through private initiative." (33)

   Thus, to determine whether property owned by a state is alienable, courts must apply a two-step analysis. First, courts must determine...