Public Property and the Democratization of Western Water Law: a Modern View of the Public Trust Doctrine
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Michael Blumm
Professor Blumm traces the evolution of the modern public trust doctrine in the West. He claims the doctrine is best understood by focusing on the remedies courts prescribe for trust violations. Although he sees four distinct categories of remedies in the case law, he asserts that they all possess the unifying theme of promoting public access to trust resources or to decision makers with authority to allocate those resources. Thus, the trust doctrine s a democratizing force--preventing monopolizing of trust resources and promoting decision making that is accountable to the public. Professor Blumm predicts that state courts will continue to expand the public trust, relying especially on constitutional provisions declaring water to be publicly owned. Finally, replying to Professor Huffman's criticisms of the public trust doctrine, he argues that the doctrine is a coherent body of law that supplies a necessary complement to prior appropriation principles, is not inconsistent with fifth amendment 'takings' jurisprudence, and has sufficient grounding in various state constitutions and statutes to continue to infuse public concerns into Western water law in the years ahead.
©2011 Walter de Gruyter GmbH & Co. KG, Berlin/Boston
Articles in the same Issue
- Article
- Democracy, Distrust, and the Public Trust: Process-based Constitutional Theory, the Public Trust Doctrine, and the Search for a Substantive Environmental Value
- Public Property and the Democratization of Western Water Law: a Modern View of the Public Trust Doctrine
- Mono Lake and the Evolving Public Trust in Western Water
- Trust Theory of Environmental Protection, and Some Dark Thoughts on the Possibility of Law Reform
- The Public Trust: A Fundamental Doctrine of American Property Law
- Fish Out of Water: The Public Trust Doctrine in a Constitutional Democracy
- Variation on a Theme: Expanding the Public Trust Doctrine to Include Protection of Wildlife
- Joseph Sax and the Idea of the Public Trust
- The Public Trust and In-stream Uses
Articles in the same Issue
- Article
- Democracy, Distrust, and the Public Trust: Process-based Constitutional Theory, the Public Trust Doctrine, and the Search for a Substantive Environmental Value
- Public Property and the Democratization of Western Water Law: a Modern View of the Public Trust Doctrine
- Mono Lake and the Evolving Public Trust in Western Water
- Trust Theory of Environmental Protection, and Some Dark Thoughts on the Possibility of Law Reform
- The Public Trust: A Fundamental Doctrine of American Property Law
- Fish Out of Water: The Public Trust Doctrine in a Constitutional Democracy
- Variation on a Theme: Expanding the Public Trust Doctrine to Include Protection of Wildlife
- Joseph Sax and the Idea of the Public Trust
- The Public Trust and In-stream Uses
