Why liberating the public trust doctrine is bad for the public.

Author:Huffman, James L.
Position:Developments in the Public Trust

    Many years ago my friend, colleague, and best man at my wedding, Mike Blumm, described me as the Darth Vader of the public trust doctrine. (1) I assume it is to play that role that I have been included in this symposium. I will try not to disappoint, though my true mission is more in the spirit of Vader's son Luke Skywalker--as defender of judicial restraint, representative democracy, individual liberty, and the common law method.

    The core purpose of this Article is to critique, and caution against, the efforts over the past four decades to reinvent the public trust doctrine. In the course of that critique I will touch on the history of the doctrine, a topic I have explored in depth elsewhere, (2) and its legal substance. Because much of the Article is devoted to explaining and critiquing several imaginative theories about the possible future of the doctrine, it will be useful to summarize its substance at the outset. That is easily done.

    As it was received in American law and as it existed well past the middle of the twentieth century, the public trust doctrine recognized a right held in common by every member of the public to navigate and fish on navigable-in-fact waters. (3) The doctrine thus imposed a corresponding duty on both public and private owners of riparian and submerged lands not to obstruct the exercise of that right. (4) Most questions arising under the doctrine related to the definition of navigable waters, the scope of the navigation and fishing rights, and the determination of what constitutes obstruction.

    The theories discussed below share in common with this traditional public trust doctrine a claim of public right. But the substance of those rights claims and the settings and circumstances to which they are said to apply have little, if any, foundation in the traditional doctrine. Thus, to be effective as enforceable rights claims, they require courts to declare them so.

    But new rights claims imply new duties. A public right where there was once a private right, and vice versa, turns existing expectations on their head unless there is just compensation. Yet that is what the proponents of a much-expanded public trust doctrine propose for courts to do.

    Even if it were possible to create new public rights without limiting the scope of existing private rights, we should ask by what authority courts may declare such rights to exist. Many of the theories discussed below mistakenly presume that such judicial lawmaking is part of the common law tradition. But even if it were, American courts function within a constitutional separation of powers that assigns the lawmaking function to the legislative branch of government.

    Thus the core concern of this Article is that the judicial declaration of new public rights at the expense of existing private rights constitutes a double violation of the principle of the rule of law. Proponents of an expanded public trust doctrine claim otherwise, asserting that the public rights they wish for the courts to declare are in fact antecedent to any existing private rights. But saying it is so does not make it so. The rule of law presumes that the law, including rights and responsibilities, is transparent and not to be changed retroactively.


    The most influential article ever written on the public trust doctrine was authored by Professor Joseph Sax in 1970. (5) Westlaw reports 2,822 articles in which the term "public trust doctrine" appears. (6) Because the most influential of all articles on the public trust doctrine does not appear in that list, I can say with confidence there are more than 2,822 articles that have discussed or referenced the term public trust doctrine. HeinOnline reports 291 articles with "public trust doctrine" in the title. (7) This list does include the most influential article ever written on the subject. Every article identified by HeinOnline appeared after that date, making the article truly seminal. Every article but one on the Westlaw list appeared after that seminal article.

    The Public Trust Doctrine in Natural Resources Law has been cited in nearly 917 articles, and probably will be cited in at least eight more when the papers from this conference are published. (8) A second public trust doctrine article by Professor Sax, Liberating the Public Trust Doctrine from Its Historical Shackles, published in 1980, has been cited in 179 articles as well. (9) That's a lot of citations. Indeed, in a 1985 ranking of the most-cited law review articles of all time, Sax's 1970 article already ranked thirty-first. (10)

    By contrast, Sax's 1970 article has been cited by three dozen state and federal courts, and his 1980 article has been cited in only six judicial opinions. (11) Perhaps this only underscores that we academics are largely talking to ourselves, but it is worth noting that Sax's article, Takings and the Police Power, (12) has been cited in law reviews over one thousand times--roughly the same number as his two public trust articles combined--but has been cited in state and federal court a total of 72 times. (13) What should we make of the fact that the ratio of academic to judicial citations of Sax's 1964 takings article is 14 to 1, and of his two public trust articles is 26 to 1? Probably not a lot. But the difference is nevertheless striking, particularly in light of the fact that both of Sax's public trust articles were explicit calls for judicial action.

    The explanation, I will argue below, is that Sax's invitation to liberate the public trust doctrine from its historical shackles--so enthusiastically embraced by many in the academy--has been largely rejected by the courts. It has been rejected because it would require the courts to exceed both their traditional and their constitutional powers, and to make up a lot of law while treading on the vested rights of a lot of people. Both the law and the limited role of the judiciary stand firmly in the path envisioned by Professor Sax.

    The apparent lack of judicial enthusiasm for throwing off the public trust doctrine's shackles might lead defenders of the rule of law, the rights of individuals, and the constitutional separation of powers to assume they can safely ignore the fanciful pleas of those who would have the courts rewrite the laws in service to objectives both noble and ignoble. But they do so at the peril of these core values of American law and governance. Somewhere there is always a judge unable to resist the invitation to do good, even where the legal path is obstructed by an absence of authority, the will of the people, or the rights of individuals. And once these self-anointed guardians of the public good commit their opinions to the case reporters, judges less confident in their role as lawmakers can appeal to precedent, and so on, until the law becomes unrecognizable to those who will have relied on it in the organization and conduct of their affairs. Indeed, the public trust doctrine has already been stretched beyond recognition even within its traditional aquatic home.

    It will be said that the stretching of the doctrine that has occurred over the past few decades is only the common law at work. (14) The common law is, we are told, judge-made law. It follows, therefore, that today's judges have not only the authority but the responsibility to amend and rewrite the law in light of present day circumstances and demands. This is particularly so, we are further told, because legislators and administrators have utterly failed to address the urgent challenges we face. (15)

    I attribute no ill motives to those who advocate for an expansive public trust doctrine pursuant to which judges must overrule the political branches of government and constrain the exercise of long-vested individual rights. Indeed, I am sympathetic with many of their objectives. But I do believe their method is a lawless one. It is borne of a whatever-it-takes approach to advocacy, politics, and governance. Law students are encouraged, even taught, to imagine how laws written for one purpose might be turned to wholly different purposes. Lawyers, aided by the immense power of digital search engines, sift through our vast heritage of statutes, regulations, cases, and commentaries for words and phrases that, when taken out of historical context, are claimed to support an interpretation the authors of those words and phrases could never have imagined and might well have opposed. Government officials institute policies and programs with the expectation that, if their authority is challenged, creative lawyers will persuade well-meaning judges that all is well with the law. It is all done in the name of the rule of law but without any of the constraints inherent in the rule of law.

    Even in the face of disappearing landscapes, threatened species, rising seas, and urban sprawl, this blatant disregard for the rule of law is a dangerous business. Good intentions, even asserted moral imperatives, do not outweigh the risks to liberty and the public good inherent in judicial lawmaking. Even if one is persuaded that the common law courts of old were lawmaking courts--a persuasion I will refute--ours is a constitutional republic in which the courts play an important but limited role. That role is limited not only by the constitutional separation of powers, but also by the constitutional liberties of the American people. Alexander Hamilton suggested in Federalist 78 that the judiciary is the "least dangerous" branch (16)--a phrase later adopted as the title of a book...

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