LEADING A JUDGE TO WATER: IN SEARCH OF A MORE FULLY FORMED WASHINGTON PUBLIC TRUST DOCTRINE
Ivan M. Stoner
Abstract: Under the public trust doctrine, a state must hold certain types of natural resources, most particularly navigable waters and shorelands, in trust for the benefit of the public. For that reason, courts closely scrutinize state actions impacting these public trust resources. In Caminiti v. Boyle,(fn1) the Washington State Supreme Court developed a test that addresses situations where the State transfers control of public trust resources to private parties. But no firm rule guides Washington courts where a state action impacts the public trust without an alienation. This Comment examines the review Washington courts have applied in such situations, and concludes that while certain core principles are extractable- especially the principle that Washington courts' role under the public trust doctrine does not end with enforcing the non-alienation rule established in Caminiti-Washington public trust law in this area remains vague. This Comment argues that reference to Wisconsin's well-developed doctrine would clarify and improve Washington's public trust doctrine, and proposes an analytical framework inspired by that created in Wisconsin's courts.
INTRODUCTION
In spite of (or perhaps because of) the froth that the public trust doctrine has generated among academics,(fn2) the Washington judiciary has imposed it cautiously.(fn3) Washington courts recognize that the doctrine casts them as enforcers of a public trust in certain unique public resources in which the public has an "overriding interest"(fn4)-navigable waters and shorelands being the prototypical and historical examples(fn5)- but how best to discharge this duty remains in some respects unsettled. A landmark public trust case, Caminiti v. Boyle,(fn6) established that the State may not give up control of public trust lands unless it does so in such a way that the public interest in those lands-the jus publicum-is not substantially impaired.(fn7) Caminiti did not, however, speak to situations where the trust is compromised while remaining under state control or even as a direct result of the State's actions.
This raises a question: What limits does Washington's public trust doctrine impose on the State's conduct when that conduct does not transfer control of public trust land to private parties, but still impacts the jus publicum? How, for example, should courts review state action when the State wishes to reclaim public mudflats in order to build a power plant? Or to fill a wetland in order to build a highway? This Comment examines how courts review such government action under the public trust doctrine, and suggests a path towards a more complete framework. In the interest of brevity, situations where state action impacts the jus publicum without transferring control to a private party will generally be referred to as "non-alienation cases."
Washington courts appear to recognize that their role as protectors of the public trust involves more than an application of the principles established in Caminiti v. Boyle. When evaluating non-alienation cases, courts in Washington usually do more than simply confirm that an alienation has not taken place.(fn8) A careful reading of Washington courts' treatment of non-alienation cases suggests certain principles that apply in such situations, but the cases are limited both in number and in depth.
Wisconsin's courts, on the other hand, have developed a five-factor analysis with which they evaluate non-alienation cases.(fn9) The important public trust principles that sound faintly in Washington's non-alienation jurisprudence are clearly enunciated in Wisconsin's. This Comment argues that Washington's courts should look to Wisconsin public trust law to distill their treatment of non-alienation cases into a coherent framework. Wisconsin's approach addresses the special considerations required in non-alienation cases and reflects the principles articulated in Washington's still-developing doctrine.
Part I of this Comment introduces the public trust doctrine. Part II examines the doctrine's development in Washington up to the seminal Caminiti v. Boyle decision, and closely considers Caminiti. Part III analyzes non-alienation cases since Caminiti. Part Iv introduces Wisconsin's well-developed public trust doctrine jurisprudence and covers Wisconsin courts' response to the non-alienation case problem. Finally, Part v argues that in such situations, Washington judges should employ a factor analysis similar to that created by their colleagues in Wisconsin.
I. MURKY WATERS; FERTILE GROUND
Often vague and always diverse, public trust doctrine philosophies have developed throughout the United States into a host of different textures and levels of refinement. Washington courts therefore have plentiful, though not always crystal clear, examples to draw from when they evaluate Washington's own public trust doctrine. This Part introduces the public trust doctrine, outlines its basic principles, and briefly addresses academic and judicial attitudes towards the doctrine.(fn10) Additionally, with the aim of giving the reader a sense of how refinements to Washington's public trust law would fit into the larger national picture, this Part provides snapshots of several areas of public trust law that have developed differently from state to state.
A. "It is a doctrine with both a radical potential and indifferent prospects"(fn11)
Whether or not "black letter" law can be said to exist in a doctrine as malleable(fn12) as the public trust doctrine is debatable, but some basic principles have been around long enough to grow barnacles. The doctrine is old enough to be considered classical,(fn13) has a long history in the United States,(fn14) and relates closely to the general rule that title to lands beneath a state's internal tidal and navigable waters rests in that state.(fn15) At the doctrine's core are the ideas that the public has a powerful interest in lands beneath navigable and tidal waters,(fn16) and that the state holds such lands in trust for the people.(fn17) Recognizing this, courts have split ownership interests in public trust lands into two parts: private property interests (the jus privatum) and public interests (the jus publicum).(fn18)
The jus publicum has historically included public rights to use navigable waters for navigation, commerce, and fishing(fn19) - the so-called "traditional triad" of public trust rights.(fn20) While a state may freely convey the jus privatum to private parties, such transfers are subject to an implied reservation of the jus publicum.(fn21) The public trust doctrine thus preserves continuing public rights in public trust resources even in the face of apparent alienation by the State.(fn22)
The seminal decision involving an alienation of public trust lands is the U.S. Supreme Court's 1892 Illinois Central Railroad v. Illinois.(fn23) Commentators and courts have generally agreed that Illinois Central represents the prototypical situation that the public trust doctrine exists to prevent, where "a small, well-organized private interest procure[s] legislation that g[ives] it monopoly privileges in order to extract wealth from the diffuse and unrepresented public."(fn24) The case originated from the Illinois legislature's decision to deed to a railroad more than 1000 acres of the Chicago harbor-a property as large as "all the merchandise docks along the Thames at London."(fn25) When a later legislature moved to undo the transfer, the railroad cried foul, and a suit resulted in which both parties asserted title.(fn26)
The litigation worked its way to the Supreme Court, which rejected the railroad's claim on the grounds that the State's public trust responsibilities prevented it from transferring the land in the first place.(fn27) Justice Stephen Field, writing for the Court, declared that: [S]uch property is held by the State, by virtue of its sovereignty, in trust for the public. The ownership of the navigable waters of the harbor and of the lands under them is a subject of public concern to the whole people of the State. The trust with which they are held, therefore, is governmental, and cannot be alienated, except . . . when parcels can be disposed of without detriment to the public interest in the lands and waters remaining.(fn28) The State's transfer of the lands under the harbor of Chicago-a property "of immense value to the people of the State of Illinois"-was therefore necessarily revocable.(fn29) Anything else would be "a gross perversion of the trust."(fn30)
The public trust doctrine, however, has never been limited to the bedrock tenets of Illinois Central. Rather, as a creature of the common law, the doctrine is capable of expansion to meet the public need.(fn31) Courts usually do not hesitate to entertain public trust claims even when no transfer of public land has occurred.(fn32) Even in early cases, courts recognized that the public rights encompassed by the jus publicum may extend beyond the traditional triad(fn33) and that the jus publicum's scope may reach beyond tidal and navigable waters.(fn34) The Vermont Supreme Court put it elegantly:[T]he public trust doctrine retains an undiminished vitality. The doctrine is not fixed or static, but one to be molded and extended to meet...
