Two wrongs? Correcting Professor Lazarus' misunderstanding of the public trust doctrine.

Author:Blumm, Michael C.
Position:Richard Lazarus
 
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  1. INTRODUCTION II. THE NONABSOLUTIST NATURE OF THE PUBLIC TRUST DOCTRINE III. THE NONSTATIC NATURE OF "BACKGROUND PRINCIPLES" AS A TAKINGS DEFENSE IV. THE NONINTRUSIVE NATURE OF THE PUBLIC TRUST DOCTRINE ON EXECUTIVE AND LEGISLATIVE PREROGATIVES V. CONCLUSION I. INTRODUCTION

    Richard Lazarus is one of the leading lights of modern environmental law. His book, Making Environmental Law, (1) should be required reading for anyone interested in the evolution of modern environmental law. He is without a doubt the leading academic analyst of the Supreme Court's environmental decisions, and his close following of the Court's decisions is a busy law professor's lifeline to the Court. (2) I have known Richard for nearly thirty years, and I always pay attention to what he says and writes. And I almost always agree with him.

    But he not only got the public trust doctrine (PTD) wrong on his tenure piece thirty years ago, (3) he has still got it wrong. (4) Worse, he is unrepentant about his error. (5) Over the years, he has moved from the law schools at Washington-St. Louis to Georgetown to Harvard, so he is not someone with whom you quarrel lightly. But, since I am associated closely with the PTD, (6) I must because--given Richard's prominence--he could do more damage than he's already done to a doctrine that I don't believe he has studied it in sufficient depth.

    Both Richard and I are deeply indebted to the legacy of Joe Sax, the patron saint of the modern PTD. (7) Richard made clear his debt throughout his recent article, (8) and my coauthors and I dedicated our recent Natural Resources Law casebook to Joe. (9) But Joe was spot-on about Richard's conclusions about the PTD: he was, in Joe's words, "utterly wrong." (10) Regrettably, he remains so. Although Richard might not be "hopelessly naive," as I once alleged, (11) he is still way off-base. I want to use this space to explain why.

    In order to do so, I need to briefly outline the contours of the PTD. In this country, the doctrine grew up in the nineteenth century around the idea of protecting public access to water resources in an era where transportation by road was difficult and by rail was either unavailable or not subject to price competition. (12) Public property rights in streams were therefore essential to widespread participation in the developing market economy, and the PTD ensured that those crucial resources were not subjected to monopoly rents. (13) Thus, the PTD was consonant with a populist agenda of the mid-1800s that promoted widespread distribution of land ownership through the federal legislation, and looked skeptically on unbridled accumulation of private wealth. (14)

    The PTD's antimonopolization and widespread distribution impulses today coexist with its environmental role because the PTD has never been an exclusively ownership doctrine--it emphasizes public uses as well. (15) This public easement aspect of the PTD means that the PTD is not so much a threat to private property as a means of curtailing private rights that damage public uses. In fact, the roots of the PTD's environmental role also may be traced to the nineteenth century in the form of state sovereign ownership of wildlife, which was the fulcrum of state wildlife regulation, and was judicially ratified in cases like Geer v. Connecticut, (16) State sovereign ownership, properly understood, is a fundamental aspect of the PTD.

    Richard does not see the important role for the PTD in either its antimonopolization or environmental protection roles, although he does acknowledge its value as a defense to regulatory takings claims. (17) His mistakes were basically three: 1) he thinks the PTD is absolutist--it is not; 2) he thinks the Lucas v. South Carolina Coastal Council (18) decision's reference to "background principles," which serve as a defense to takings claims, and which clearly include the PTD, is a reference to static property principles--it was not; and 3) he thinks that the PTD usurps legislative and executive prerogatives--it clearly does not. I explain each of Richard's errors below.

  2. THE NONABSOLUTIST NATURE OF THE PTD

    Richard seems to think that the PTD is objectionable because it imposes "absolutist notions of property rights." (19) You hear this often from the libertarian crowd, which views the PTD as a threat to private property. (20) It is just not true, as I have tried to show: the PTD and private property can and do coexist. What the PTD demands is an accommodation of both public and private rights in property. As I once wrote:

    Some libertarians see application of the public trust doctrine as an evisceration of private property rights. In reality, such claims are hyperbolic. The doctrine actually functions to mediate between public and private rights, and thus is hardly the antithesis of private property; instead, it functions to transform, not eradicate, private property rights. (21) Richard's assumption that the PTD is absolute is just as wrong as the libertarians' view. A good example is the famous National Audubon Society v. Superior Court (Mono Lake) (22) case. There, the California Supreme Court hardly viewed the PTD as absolutist, directing the state to "exercise continuous supervision" of diversionary water rights in order to ensure consideration of the ecological values protected by the public trust. (23) The court did not rule that the public trust uses trump appropriated water rights, but it did direct the state to protect public trust uses "whenever feasible" to achieve both the economic value of the diversions and the ecological values of the lake and its feeder streams. (24) In implementing the court's directive, the state water board decided to try to partially restore the lake's level by cutting back on the diversions, but it did not eliminate them. (25) The accommodation the state reached over a decade later, in 1994, benefited both the lake...

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