PUBLIC TRUST DOCTRINE

The following article by one of the advisors of the Virginia Eastern Shorekeeper was originally published in ShoreLine, the newsletter of Citizens for a Better Eastern Shore, and is reprinted here to help citizens understand the fundamental rights to protection and management of public assets.

The Public Trust Doctrine and the Shore’s Marine Waters

By Vic Schmidt

The term “Public Trust Doctrine” will probably be interpreted by many as some arcane law dredged up from a dusty law book. But when typed into an Internet search engine the term produces over 800,000 references. What is this seemingly obscure Doctrine? One writer offers the following definition:

“The Public Trust Doctrine provides that public trust lands, waters and living resources in a State are held by the State in trust for the benefit of all the people and establishes the right of the public to fully enjoy public trust lands, waters and living resources for a wide variety of recognized public uses. The Public Trust Doctrine is applicable whenever navigable water or the lands beneath are altered, developed, conveyed or otherwise managed or preserved.”

The concepts of this Doctrine incorporated into federal and state constitutions and law also set limitations on the States, the public, and private owners, and perhaps most important establish duties and responsibilities of the States for protecting and managing these public assets.

The Public Trust Doctrine has been recognized and affirmed by the United States Supreme Court, the lower federal courts and State courts from the beginning days of this country to the present. In essence the Doctrine provides the States with not only the authority to exercise stewardship over marine waters and other natural resource assets but also the responsibility to protect these resources. To the average citizen this may not be really big news, but because of the increasing number and variety of public trust issues being decided by the courts, the Public Trust Doctrine has been characterized as a sleeping giant beginning to arise.

One organization paying considerable attention to the Doctrine is the Coastal States Organization (CSO). Since 1977, the CSO has represented the Governors of the nation’s coastal and Great Lakes states, Commonwealths and Territories on issues relating to the improved management of coastal development and the protection of coastal resources. The CSO in 1997 issued a report prepared under contract with the US National Oceanic and Atmospheric Administration (NOAA) entitled Putting The Public Trust Doctrine To Work. The report is in book form and covers a wide range of issues related to the Doctrine including coastal zone management, the “takings” doctrine, agency responsibilities and innumerable case histories.  It is indeed a most valuable reference for planners, regulators and managers of coastal resources.

The Doctrine has a long history, even pre-dating English law. In the United States, as early as 1820, there was a case involving a New Jersey waterman accused of trespass while gathering oysters, which reached that state’s Supreme Court. The Court upheld the waterman’s right to gather shellfish on bottom land held in trust for the public by the State. Subsequently the Doctrine has been the basis for securing public access to seashores across beaches where beach front owners had previously prohibited trespass.

More recently, the Doctrine has had application in winning monetary damages from polluters of public trust waters. One high profile case involved the $1 billion suit won against Exxon Corporation for the Alaska Exxon Valdez oil spill and in evaluating the Hudson River where the General Electric Company had been accused of discharging toxic PCBs into the river.

In June of 2000, the Waterkeeper Alliance and the North Carolina Riverkeeper organizations filed a lawsuit in North Carolina Superior Court against all of Smithfield Food’s North Carolina hog farming operations, invoking the state’s nuisance laws and the Public Trust Doctrine to halt pollution of waterways.

In the state of Washington, the Supreme Court upheld an ordinance banning the use of noisy motorized personal watercraft on all marine waters and one lake in San Juan County, noting that the ordinance was not in violation of the Public Trust Doctrine.

In a case involving the Sierra Club, South Carolina’s Supreme Court held that the Coastal Council’s decision to permit the construction of 36 docks did not violate the Public Use Doctrine because the docks would not substantially impair marine life, water quality or public access.

In Virginia the Public Trust Doctrine is embodied in the State’s Constitution adopted in 1979 that states:

“it shall be the policy of the Commonwealth … to protect its atmosphere, lands, and waters from pollution, impairment or destruction, for the benefit, enjoyment and general welfare of the people of the Commonwealth” and that “the natural oyster beds, rocks and shoals in the waters of the Commonwealth shall not be leased, rented or sold but shall be held in trust for the benefit of the people of the Commonwealth [the so-called Baylor grounds].”

The Chesapeake Bay Preservation Act (CBPA), approved by the General Assembly in 1988, is an extension of the Public Trust Doctrine. This Act places the primary responsibility for implementing and enforcing the provisions of the Act on the 84 Tidewater-region local governments including Accomack and Northampton counties. The localities meet this responsibility by developing and implementing their own local programs – usually by adding appropriate provisions to their zoning ordinances.

In counties like Northampton and Accomack where aquaculture and water-based recreational activities are such a major component of their economies, the protection of their high quality marine waters, a public trust responsibility, is of paramount importance. State agencies and local government try to exercise stewardship with the limited resources available to them, however, sedimentation and non-point source pollution continue to adversely impact the bayside creeks.

In lower Northampton County, it has been necessary for Cherrystone Aquafarms, one of the county’s largest businesses, to haul water from the seaside to its clam hatchery at King’s Creek on the bayside because the creek water is unsuitable for the hatchery. And the closure of shellfish grounds in Plantation Creek, once one of the most productive creeks for shellfish, was required by the Division of Shellfish Sanitation. Both are further indications that sources of water quality problems are in need of additional attention.

Just how far the scope of the Public Trust Doctrine can be extended is an open question. There does appear to be a developing trend, attributed to increasing citizen interest in natural resources, which is expanding the scope of the Doctrine to include coastal zone management areas and even well-defined ecological systems. Two court decisions in New York are examples of the expansion trend. In one instance the Court declared that, "the entire ecological system supporting the waterways is an integral part of them and must necessarily be included within the purview of the trust." The Court was calling for protective measures against actions which would degrade the public trust resource, the waterway.

In the case of W. J. F. Realty Corporation and Reed Rubin v. the State of New York, the New York State Supreme Court, Suffolk County upheld the Long Island Pine Barrens Act against a “takings” challenge by highlighting the Public Trust Doctrine. The decision was handed down on April 22, 1998, Earth Day. Briefly stated, the Pine Barrens Act is a comprehensive planning law that established a 50,000 acre protected preserve surrounded by a 50,000 acre managed growth area. Justice William L. Underwood's decision includes an analysis of the common law and he concludes that, "Contrary to popular misconception, the Common Law did speak on the subject of environmental regulation." He concludes his analysis by declaring that: “In enacting environmental mandates (as in protecting the right of property), we are merely discharging our obligation under the societal contract between 'Those who are dead, those who are living and those yet to be born' (Edmund Burke)... This generation’s duty has been discharged merely by setting aside this and for their [e.g., for future generations] use under the doctrine of the Public Trust.”

Citizens, commercial aquaculture producers, recreational fishermen and public officials who have a deep interest in the maintenance of high quality water standards for the Shore’s marine waters and who are concerned about the future of two of our most important local industries have the assurance that a recognized Doctrine exists that provides a solid legal foundation to protect this valuable natural resource.

Author’s Note.  This article relies heavily upon several references:  an article, “An Introduction to the Public Trust Doctrine,” by Paul M. Bray of the Government Law Center at Albany Law School in Albany, New York; a book, Putting The Pubic Trust Doctrine To Work, published by the Coastal States Organization; and numerous articles posted on the internet.

ShoreLine Comment.  Readers should be aware of one caveat – the public trust doctrine does not exist as a discrete piece of specific text. It exists as a concept embodied in English common law and in even earlier legal codes going back to the Roman Empire. That concept is now incorporated into many modern constitutions and laws. While laymen often would like to see a specific text, in fact, it varies from one state to the next. As the US Supreme Court said in an 1894 case: “…Each State applies the doctrine to the lands under the tidal waters within its borders according to its own views of justice and policy. … Great caution, therefore, is necessary in applying the precedents in one State to cases arising in another.” But that doesn’t make the public trust doctrine any less real or meaningful – it just makes it a little harder to understand and “enforce.”