Volume 3, Issue 1 - Joseph Sax and the Public Trust

The public trust doctrine has enjoyed a significant renaissance over the last twenty-five years as a tool for judicial review of government decisions to alienate natural resources. The analysis most responsible for the doctrine's rebirth, Joseph Sax's 1970 Michigan Law Review article, characterizes the doctrine as a tool for perfecting inadequacies in the political and administrative process that may result in inappropriate discounting of environmental values. In this Article, Professor William Araiza considers this democracy- reinforcing conception of the doctrine by exploring the analogy between it and the political-process theory of the Equal Protection Clause. This latter theory justifies a searching judicial scrutiny of legislation burdening certain groups on the grounds that prejudice limits those groups' ability to participate fully in the political process. Essentially, Professor Araiza asks whether public trust resources can be meaningfully analogized to such "discrete and insular minorities," for which heightened judicial protection is appropriate. He concludes that while it may be theoretically possible to draw this analogy, a process-justified public trust doctrine nevertheless fails to provide principles limiting that which would otherwise be an extraordinarily broad scope for judicial review. Moreover, environmental protection is a politically powerful rallying cry in contemporary America; when combined with existing mechanisms for channeling that political power into administrative action, this fact undermines the appropriateness of special judicial solicitude for environmental conservation based on alleged defects in the government decision-making process. Professor Araiza consequently rejects a purely process-justified public trust doctrine and instead considers sources of a substantive political commitment to public trust preservation. He argues that many state constitutions provide this commitment through provisions addressing environmental protection. Professor Araiza concludes that many of these provisions, carefully read, can provide the foundation for a public trust doctrine that seeks not to second- guess government decisions, but that merely attempts to ensure that environmental values are appropriately considered in the decision-making process. This conclusion both gives effect to these provisions, most of which have laid dormant since their enactment, and limits the judicial role in areas in which the need for technical expertise and political accountability make judicial policy making especially inappropriate.

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.

The Mono Lake case is a lodestar in public trust jurisprudence. This article discusses that case and explains how it revolutionized California water law. The article identifies six principles established by the decision that place it in the vanguard of public trust case law. It also examines some of the progeny of the Mono Lake decision, both in California and in other western states. The article claims that in the wake of Mono Lake, a half dozen western states have recognized the application of the public trust doctrine to water rights, although no other state has embraced all six of the tenets of the Mono Lake doctrine. The article concludes that the the public trust doctrine's deep historical roots and conceptual coherence make it a promising vehicle by which to moderate the excesses of the prior appropriation doctrine of western water law and replace that doctrine's "all or nothing" approach with what the article refers to as the "accommodation principle," under which both diversionary and instream uses of water will be accommodated wherever feasible.

When Professor Joseph Sax wrote his famous Public Trust article in 1970, the environmental movement was in a state of agitation and flux. The status of the public trust theory today seems secure; it has been incorporated into legislation, case law, and, indeed, our basic thinking about the environment. But in wilderness preservation, the trust approach is unlikely to succeed, because the trustee will share the same values we hold. Sax's public trust theory won rapid and widespread acceptance during a time of considerable agitation when new theories and approaches to environmental protection were being explored. Each of these approaches to environmental protection was put on the back burner when Sax's public trust theory was adopted. I believe it is possible to generalize from society's experience with Sax's public trust theory of environmental protection. This Essay describes and analyzes the role of Joseph Sax's landmark article on the public trust model of natural resource law in both advancing and retarding the movement for environmental reform. Part II showed the defects of the trust approach, as well as why it proved attractive to national consciousness in the early and mid-1970s (and, indeed, remains so today). The public trust theory, although deeply compromised, solidified the partial revolution in social thought on the issue of environmental protection.

Professor Dunning argues that the public trust doctrine, with provides for public access to navigable waters and a significant range of related natural resources, deserves more recognition than it currently receives from property law scholars. He notes the doctrine in some states has taken on the status of an implied constitutional doctrine, which greatly adds to its theoretical interest and practical impact.

This Article explores various theoretical explanations for the public trust doctrine. The author rejects trust law as unworkable and constitutional law as historically unrelated. The author also rejects explanations rooted in judicial review theory and the police power. The author’s conclusion is that the public trust doctrine is best understood, both historically and theoretically, as an aspect of property law, and that much of the modern public trust case law cannot be justified on the basis of this understanding of the doctrine. The author further concludes that the modern case law is incompatible with the basic values of a constitutional democracy.

Western society in general, and in particular, the American legal system which reflects society's values, tends to categorize to facilitate decision making. Modern resource management unfortunately makes an all too often similar mistake. Thus, a forest is transformed into separate resources: trees, recreation values, water, wildlife, domestic animal forage, etc. This Article proposes the need for a different approach to resource management and regulation and argues that an expanded public trust doctrine provides a legal, practical, and more holistic means for decision making that affects wildlife and wildlife habitat. A fundamental difference between our culture and ... [native cultures], which can be felt even today in certain situations, is that we have irrevocably separated ourselves from the world that animals occupy. We have turned all animals and elements of the natural world into objects. We manipulate them to serve the complicated ends of our destiny .... A second difference is that, because we have objectified animals, we are able to treat them impersonally .... [For native peoples], most relationships with animals are local and personal. The animals one encounters are part of one's community, and one has obligations to them.'

In the 1970s, Joseph Sax revived of the historical “public trust” doctrine and extended it from waterways to natural resources more generally. This essay argues that Sax’s doctrinal “rediscovery” was closely linked to his growing concern that governments may be too much influenced by partial interest groups and hence unable to manage large and diffuse environmental resources. Sax turned to water law because water has traditionally been subject to community management. But his use of the language of “public trust,” though very arresting, was somewhat idiosyncratic. Traditionally, public trust doctrine focused on navigation and communication, and hence a revived public trust doctrine might have been more appropriate for new communications media than for environmental concerns. Many critics have pounced on the uncertainties of Sax’s public trust doctrine as applied to natural resources. In fact, a different area of water law–riparian law–was actually more consonant with Sax’s concerns for community management of environmental resources. But “riparianism” is a rather boring word by comparison to “public trust.” In sacrificing some historical precision and choosing the more dynamic language of “public trust,” Sax was able to dramatize important issues of environmental governance, in a way that has had great resonance to later scholarship.

The public trust doctrine, an ancient but newly revived common law remedy, can prevent the continued destruction of public waters. This Article takes an historical overview of the doctrine as it applies to nonnavigable waters, focusing on the California cases involving Mono Lake, the Lower American River, and Putah Creek. The author concludes that public trust considerations were intertwined with the appropriative water rights system long before the 1983 Mono Lake decision. Furthermore, the public trust doctrine will continue to impact future water decisions in California, with potentially significant impacts on California’s Colorado River water supply.