OPINION/COMMENTARY

Public Trust & Private Rights

Is the public trust doctrine a threat to private property? Is it a vital, evolving common law doctrine? Or a metastasizing source of governmental authority over private land? The Federalist Society’s Environmental Law and Property Rights Practice Group took up these questions in a panel Thursday at the Society’s National Lawyers Convention in Washington, D.C. The remainder of this post summarizes the highlights of the session, interspersed with some of my own commentary. Leading off, Lewis & Clark Law School Dean Jim Huffman noted that the public trust doctrine, as initially conceived, was very limited. As developed under Roman law and later English law, the public trust only applied to very limited areas – navigable waters and submerged lands under the waters – and only protected a very limited set of uses, such as fishing, navigation and bathing. Government actions could not limit the public’s access to such areas for such uses, nor could the rights to such uses on these lands be privatized. As initially conceived it was a doctrine designed to prevent a despotic state from limiting the public’s liberties in the public’s resources. In more recent years, however, environmental activists have sought to use the doctrine to control land-use – in effect using a doctrine designed to limit government power over private liberties to expand government power over private lands....