Public trusteeship for the oceans (original) (raw)
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International use of the public trust concept, and its application to the ocean
- Background/Question/Methods The revival of the “public trust” for natural resources management has been among the most successful innovations in US environmental law. The concept also spread to other common-law systems around the world; e.g., the Indian Supreme Court in 1996 declared the public trust doctrine “part of the law of the land.” Yet, the legal concept of public trusteeship – even though allegedly derived from ancient Roman law – is virtually unknown and frequently misunderstood in modern European legal systems, with the possible exception of Swedish and Italian environmental law (where equivalent concepts exist under different names). To illustrate the point, when Woodrow Wilson’s famous phrase of the “sacred trust of civilization” was inserted in the League of Nations Covenant in 1919, and subsequently in the United Nations Charter in 1945, it was mistranslated in French as “mission sacre” (thus changing the meaning of the legal metaphor from trusteeship to agency). I...
The Public Trust Doctrine and Natural Law: Emanations Within a Penumbra
2006
In American jurisprudence, the public trust doctrine emerged as a means of protecting certain limited environmental interests, such as coastal waterways and fishing areas, which were preserved for the benefit of the public and distinguished from grants of private ownership. However, modern scholars have called for an expansive application of the public trust doctrine, citing the growing inventory of “changing public needs” in the environmental context, such as the need for improved air and water quality, and the conservation of natural landscape. This Article examines the history and scope of the public trust doctrine to determine how modern resource management fits within the doctrine’s development under the Constitution and common law. Such an examination is incomplete without reviewing the important principles of Natural Law underlying the original doctrine. In the end, the Article concludes that modern trust expansion should be limited within the ancient values of principled eco...
The Rise of Public Trusteeship in International Environmental Law
This essay is a tribute to five old friends and distinguished Haub Prize laureates: Joseph Sax, Russell Train, Alexander Kiss, Cyril de Klemm, and Edith Brown Weiss. All five of them, each in their own way, have made major scholarly contributions to the recognition of an ancient legal concept which experienced a phenomenal comeback in modern environmental law over the past forty years: viz., public trusteeship for the Earth's natural resources. Let me start out by explaining where the " public trust doctrine " (PTD) comes from, what it is, – and what it is not. I will then try to summarize the distinct contributions of our five ICEL colleagues to the development and elaboration of the doctrine, and conclude with a few observations on its prospects in the current context of international legal theory and practice.
Journal of Roman Archaeology, 2019
Who owns the shore of the ocean or of a large inland lake? In 2015, Don and Bobbie Gunderson, whose house in Long Beach (IN) looked out onto the southern shore of Lake Michigan, brought suit against the State of Indiana seeking a declaratory judgment that they owned their beach above the fluctuating waterline of the lake. The suit was prompted by a 2010 Long Beach ordinance affirming Indiana law that the beach, up to what is called the "ordinary high water mark" (OHWM), 1 was public property accessible to all. The Gundersons argued that the state was taking away their private property without paying them compensation, as is required by the U.S. Constitution. 2 The Gundersons ostensibly had a strong case. They surely had paid much more for their property because of its lakefront location, and had since paid higher property taxes as well. Further, they had maintained the beach as their own. Their deed also seemed to back up their contention. But they lost in court, by summary judgment, at every level of the Indiana judicial system, and their attempt to interest the U.S. Supreme Court in the case also failed. 3 In ruling against the Gundersons, Indiana courts relied heavily on a legal theory called the Public Trust Doctrine, which holds that there are certain types of property-mainly, but not entirely, natural resources-that sovereign governments hold in trust for public use; and the shores of the ocean or of very large inland lakes (such as Lake Michigan) are, like the bodies of water themselves and the navigable rivers leading to them, historic and particularly wellknown examples of such trust property. 4 The Public Trust Doctrine is considered one of the most powerful weapons in the modern environmental arsenal. 5 In discussing this theory, courts and commentators have frequently recognized that the origins of the Public Trust Doctrine can be traced to Roman legal sources concerning what are called res communes (Common Things). There is no doubt about the truth of this view simply as an historical matter: Roman sources were called upon in order to develop the doctrine, first in mediaeval Civil and Canon Law, thence in English Common Law, and subsequently in American law. 6 Nonetheless, those scholars who, for reasons I shall examine presently, look on 1 The OHWM is usually defined as highest average point reached by a body of water over land, in non-flood conditions. It is often close to the vegetation line, which is easier to recognize. 2 United States Constitution, Amendment V: "No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation".
Se. Envtl. LJ, 2006
Many esteemed environmental law scholars have delighted in exploring the public trust doctrine over the past few decades. 1 This pastime was initiated in large part from what most view as a seminal article by Professor Sax in 19702 in which he declared "of all the concepts known to American law, only the public trust doctrine seems to have the breadth and substantive content which might make it useful as a tool of general application for citizens seeking to develop a comprehensive legal approach to resource
Australian Journal of Agricultural and Resource Economics, 2009
We examine the implications of the public trust doctrine in natural resource protection and conservation. A model of litigation and settlement among disputing parties suggests that the public trust doctrine introduces more costs and is more time consuming than would be the case with alternative approaches, such as the purchase of private rights through market transactions or application of eminent domain powers to reallocate the resource. Because the doctrine allows for uncompensated redistribution, it is resisted by current resource owners. Furthermore, by providing open standing to members of the public in challenging existing uses, public trust disputes encourage excessive demands, increasing the incidence of trial over settlement. This outcome is exacerbated if the plaintiffs derive utility from the 'cause' and provide litigation services at below-market rates, leading to greater investment in litigation. The costs of the public trust doctrine appear to have limited its application beyond the level anticipated by proponents. We present a case study of Mono Lake, part of the well-known 1983 litigation, National Audubon v. Superior Court to illustrate our arguments.
Regional Ocean Governance: The Role of the Public Trust Doctrine
Duke Envtl. L. & Pol'y F., 2005
REGIONAL OCEAN GOVERNANCE: THE ROLE OF THE PUBLIC TRUST DOCTRINE Kristen M. Fletcher ... 3. David С Slade, R. Kerry Kehoe & Jane K. Stahl, Putting the Public Trust Doctrine ... precedents in one State to cases arising in another."8 The case of Phillips Petroleum Co ...
2019
A U T H O R . Associate, Wilmer Cutler Pickering Hale & Dorr, Washington, D.C.; J.D. Harvard Law School; B.A., University of Connecticut. I am grateful to Joe Singer, Angela Howe, and Staley Prom for their valuable input. I am also grateful to my family and friends for their willingness to indulge me in extensive and helpful conversations. ® T H E U N I V E R S I T Y O F N E W H A M P S H I R E L A W R E V I E W 1 7 : 2 ( 2 0 1 9 ) 288 INTRODUCTION ........................................................................................... 288 I. MAINE, MASSACHUSETTS, AND THE COLONIAL ORDINANCE ........ 289 II. LEGISLATION PERMITTING PUBLIC ACCESS FOR GENERAL RECREATION BELOW THE MEAN HIGH TIDE LINE WOULD NOT CONSTITUTE A TAKING ......................................................................... 293 A. The Public Trust Doctrine Is a Background Principle of State Law .............. 295 B. Background Principles Can Evolve Over Time ............................................ 297...