Chapter 22 Public Trust Doctrine

 Public Trust Doctrine

 · originated in Roman law—"By the law of the nature these things are common to all mankind—the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitations, monuments, and the buildings, which are not, like the sea, subject only the laws of the nations."

 · 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 pubic uses.

 · generally speaking, all navigable waters and lands beneath these waters are subject to Public Trust Doctrine (79,481 square miles of inland navigable waters, 74,364 square miles of coastal waters, and an estimated 37,500 square miles of ocean waters within jurisdiction of coastal states).

 

· title to public trust land is vested with two titles—jus publicum and jus privatum

jus publicum—dominant bundle of trust rights of public to use and enjoy trust lands for commerce, navigation, fishing, bathing, and other related public purposes

jus privatum—subservient proprietary rights in the use and possession

State cannot convey jus publicum interests into private ownership or abdicate trust responsibilities

 

So What is the Public Trust Doctrine?

"Is it state common law?" "Is it state statutory law?" "Is it part of the state constitution?" Is the federal government subject to the trust? "Who is the trustee?" "What is the trust corpus?" "What are its terms?" "Who are the beneficiaries?"

 

Three prongs of Public Trust

derogation—where public trust assets are threatened by pollution or destruction

alienation—where government attempts to sell public trust assets

diversion—where public trust assets are shifted from one public use (like a park) to other more exploitive uses

 

Trustee Owes these Duties to Beneficiaries of the Trust (Private)

  1. A duty to loyalty, that is, the duty not to engage in self-dealing.
  2. A duty not to delegate.
  3. A duty to furnish information.
  4. A duty to maintain control of trust corpus property.
  5. A duty to preserve the trust property.
  6. A duty to deal impartially with beneficiaries.
  7. A duty to enforce the claims of beneficiaries.
  8. A duty to make trust property productive.

 

"…the wholesale application of private trust law principles to the trust-like relationship described in Article VIII is inappropriate and antithetical to the goals of conservation and universal use." (Justice Fabe, Brooks v. Wright, Alaska Supreme Court, January 15, 1999)."

 

Three strategic advantages of doctrine over common law remedies:

  1. automatic standing
  2. a presumption in favor of public uses, transferring the burden of proof to the public trustee to justify a diversion or alienation
  3. ability to avoid sovereign immunity (public trust acts like constitutional provision)

 

Alaska Interpretation/Implementation of Public Trust Doctrine

 

· Public trust doctrine is (implied) constitutional--"…common law principles incorporated in the common use clause impose upon the state a trust duty to manage the fish, wildlife, and water resources of the state for the benefit of all the people" (Owsichek v. State)

· Scope of resources covered is far broader than other states—not limited to tidelands and submerged lands—includes all state lands and all unappropriated minerals.

· 1983—Sagebrush Initiative "All land in the state and all minerals not previously appropriated are the exclusive property of the state and the state holds title to the land and minerals in trust for the people of the state." (AS 38.05.502)

· Broad interpretation of initiative would extend doctrine beyond tidewater and includes state owned uplands and resources found on them such as fish, wildlife, timber, and water.

· State agencies must thoroughly consider public trust ramifications of their actions, especially disposal is concerned.

· Public trust doctrine in Alaska was intended to function as safeguard against ill-advised sales or disposals of public resources.

· There is tension between public trust doctrine and Article VIII which allows leases, and sales and grants.

· Alaska’s Supreme Court has yet to articulate the standard of care owed by the state as trustee in the context of the public trust doctrine.