The public trust doctrine has its roots in the ancient Roman concept of natural law that held certain things, including the shores of water, were by their nature common to all.

“By the law of nature these things are common to 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 buildings which are not, like the sea, subject only to the law of nations.” Justinian Code of 530 AD

The doctrine was adopted under English common law under which the tidelands and navigable waters were held by the king in trust for the general public, a kind of noblesse oblige. These public rights were also vested in the colonies of America, and following the American Revolution, all the rights of the king were vested in the several states, subject to the rights the states surrendered to the national government under the U.S. Constitution.

So today the states have public trust authority as common law to the extent they wish to exercise it and subject to rulings by state courts. This has varied greatly from state to state with Hawaii being the only state which extends public trust to groundwater and Vermont which recently passed a law which included public trust as a matter of state policy.

The seminal work on public trust doctrine was written by Joseph L. Sax in 1970: “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention,” Michigan Law Review 69 (1970) available in a law library if anyone wants to read it. For the leading case on public trust law of the states, and the role of the U.S. Supreme Court and state courts to assure the trust is not violated, see Illinois Central Railroad v Illinois (1892). This case is described more fully at the end of this paper. You will also find more on the history at end of this paper.

Principles for public trust law

As I discussed with Jim Olson, Michigan attorney representing Michigan Citizens for Water Conservation and author of several law review articles on public trust , public trust law should:

1. Declare that the streams, lakes, and rivers, and tributary groundwater of a state are a single hydrological system and impressed with a public trust; that the state holds and manages its water consistent with this public trust.

1. Ensure that when approving, licensing, permitting the use, diversion, reallocation of the flows and levels of the waters of the state, no such approval should be authorized if the standards of the public trust doctrine have not been met. These are that –
   1. they serve a primary public purpose;
   2. there is no material impairment of water, water dependent natural resources, or use and enjoyment of citizens.

1. Ensure that citizens whose use and interest are likely or will be affected by conduct or by approvals, licenses, permits of the state or any subdivision or local unit of government, have the right to bring an action in the courts to protect the public trust in its water and related natural resources by declaratory and injunctive or other equitable relief. Similarly citizens can act to protect the integrity and health of ecological systems. (Note: This is an extension of the common meaning of public trust. See below.)

1. Nothing in state law shall diminish the right of local jurisdictions to act to in keeping with the public trust to safeguard the community, including its ecosystem.

Public Trust and Rights of Nature

These are two very different framings. In public trust law, the state has the duty to act on behalf of its citizens to protect their rightful interest in using natural resources, particularly water, for essential public needs; fishing; public recreation such as boating and swimming; and commerce, as long as the common rights of others are protected.

In rights of nature law, nature has certain inalienable rights. Because nature cannot speak for itself in courts of law, its rights must be upheld by people acting not out of economic self-interest treating nature as property, but rather out of a moral code that views humans as an integral part of nature, not as dominant over nature.

Can Public Trust be broadened to include the Rights of Nature?

Assuming that Maine Water Allies share the goal of protecting the rights of nature, how could a public trust referendum be drafted to encompass this concept?

Rather than the state holding water in public trust for the common use, pleasure and benefit by the people of the state, the people of the state could hold all streams, lakes, rivers, marshes and groundwater in public trust to protect the integrity of the ecosystems on which all life depends.

This then would give the people of the state the authority to take such action as necessary to protect the integrity and health of ecological systems, having been entrusted by the state via referendum and law with this public trust responsibility.

A good example is the Michigan’s Environmental Protection Act, which grants standing to citizens to bring lawsuits to prevent likely pollution, impairment, or destruction of the air, water, or natural resources or the public trust in those resources, which does not need to be based solely on the impact on people. Several other states including Minnesota and Connecticut have passed similar laws, and there is substantial court precedent interpreting these laws that embrace the role of citizens to bring lawsuits to protect nature.

How this authority is carried out could vary from town to town just as the Shapleigh and Newfield laws leave it to the local citizens to decide how to uphold the rights of nature.

Note that the Maine 1910 Conant vs Jordan decision described below could be interpreted to support this line of reasoning.

History of public trust law in Maine

Colonial Ordinance of 1641-47: Public Trust in Great Ponds

Every inhabitant . . . shall have free fishing and fowling, in any Great Ponds, bays, coves and rivers so far as the sea ebbs and flows . . . .Provided that no town shall appropriate to any particular person or persons, any Great Pond containing more than ten acres of land; and that no man shall come upon another’s property without their leave otherwise than as hereafter expressed . . . . And for Great Ponds lying in common . .. it shall be free for any man to fish and fowl there, and may pass and repass on foot through any man’s property for that end, so they trespass not upon any man’s corn (old English word for crops), or meadow (hay).

Great Ponds Act of 1820

“In 1820, when Maine separated from Massachusetts, we carried over with us in the Articles of Separation, this ordinance which is now referred to as the Great Ponds Act. A

great pond is any body of water, ten acres or larger, in its natural state, or any flowed body of water 30 acres or larger.

1910 ruling in Conant vs Jordan

“In 1910, in a landmark decision, the Supreme Court of Maine ruled in Conant vs Jordan that even though the ordinance was written in Massachusetts, and even though Massachusetts took the position that the Commonwealth held the water in trust for the people, the court found that not to be true in Maine.

“Since the ordinance said ‘any man,’ the court found that the water belonged in common to the people and not the state. This means that all the people in Maine from Kittery to Fort Kent own an equal share in all the water in Maine from Kittery to Fort Kent”

1985 The Public Trust in Intertidal Lands

MRS Title 12, Chapter 202-A: 12 §571. Legislative findings and purpose

The Legislature finds and declares that the intertidal lands of the State are impressed with a public trust and that the State is responsible for protection of the public’s interest in this land.

The Legislature further finds and declares that this public trust is part of the common law of Maine and generally derived from the practices, conditions and needs in Maine, from English Common Law and from the Massachusetts Colonial Ordinance of 1641-47. The public trust is an evolving doctrine reflective of the customs, traditions, heritage and habits of the Maine people. In Maine, the doctrine has diverged from the laws of England and Massachusetts.

The public trust encompasses those uses of intertidal land essential to the health and welfare of the Maine people, which uses include, but are not limited to, fishing, fowling, navigation, use as a footway between points along the shore and use for recreational purposes.

These recreational uses are among the most important to the Maine people today who use intertidal land for relaxation from the pressures of modern society and for enjoyment of nature’s beauty. [1985, c. 782, (NEW).]

The Legislature further finds and declares that the protection of the public uses referred to in this chapter is of great public interest and grave concern to the State. 12 §573. Public trust rights in intertidal land…..

2. Limitations. The rights described in subsection 1 do not include:

A. The removal from the intertidal land of any sand, soil, rocks or other minerals; [1985, c. 782,(NEW).]…….

[Note: This is one step toward the concept of protecting an ecosystem.]

3. Police powers. Municipalities shall have jurisdiction to exercise their police powers to control public use of intertidal land, except where such exercise is superseded by any state law.

Two key public trust court cases: Illinois Central Railroad and Mono Lake

1892 U.S. Supreme Court Case Illinois Central Railroad Co v Illinois

“the leading case establishing the doctrine in the United States-the “lodestar” of the modern public trust doctrine” according the University of Chicago Law Review in 2004 quoting Joseph Sax’s 1968 Michigan Law Review article.

The Court held that “public trust submerged lands belong to the respective States within which they are found, with the consequent right to use or dispose of any portion thereof, when that can be done without substantial impairment of the interest of the public in the waters….” 146 U.S. 387, 435 setting a precedent for strict scrutiny of any private taking of public trust land. Applying this scrutiny to the legislature’s grant and deed of Lake Michigan bottomlands and waters, the Court voided the deed because under public trust law it did not promote a primary public purpose.

There are many references to public trust in the decision (see attachment); however, if you read the very tedious case, you will discover that the case hinges on the questions of impairment and public purpose as opposed to private purpose or gain. This fundamental principle stands even when specific interpretations may be more limiting, eg, in part of this case the court was concerned about the narrower question of whether the railroad would will interfere with the navigability on the lake.

The challenge is in drawing the line as to where an action is primarily private gain or has a clear public purpose. For example, the court in this case considered these narrower technical issues in reaching its decision:

1. when title to each particular parcel of waterfront property was conveyed or not conveyed to the railroad
2. whether a prior state law conveying the land to the railroad was valid or not, partly turning on whether or not the bill was read three times before passage,
3. whether it is the railroad or the state which has the rights to build piers etc. on the waterfront and
4. whether the piers will interfere with the navigability on the lake.

The court ruled that the earlier laws passed by the state legislature granting the land to the railroad were invalid and “the State of Illinois is the owner in fee of the submerged lands constituting the bed of Lake Michigan…..” However, the court goes on to say that if certain other piers do not interfere with navigability, then the railroad’s title to those piers and presumably the submerged land on which they are built land should be affirmed.

The point is that the notion of public trust provides substantive limitations on the state’s ability to sell pubic trust lands and waters, but this principle can get pretty muddy in its application as the court considers technicalities in the specifics of the case. (see attachment).

The difference between public trust law, which draws this line between private and public purpose use of public lands and water, and the rights of nature is that in rights of nature, nature itself has rights separate and apart from any private/public purpose or ownership.

Mono Lake: Public Trust extended to non-navigable tributaries and protection of ecological system

In 1983, the Supreme Court of California significantly expanded the application of public trust, in its decision on Mono Lake. In the case brought by National Audubon Society and others, the court ruled that the LA Dept of Water and Power, which was diverting large amounts of water from Mono Lake through an aquaduct for use by the city, would have to take into account the public trust values of the lake.

The court said that the public trust doctrine protects navigable waters from harm caused by the diversion of non-navigable tributaries, and that the state “has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible.” National Audubon Society v. Superior Court Alpine County (1983, 33 Cal.3d 419).

The ruling was not actually enforced until 1994 when the State Water Resources Control Board ruled that the level of the lake would have to be maintained so as to protect the public trust values and ecology of the lake. Since that time there has been some significant improvement in Mono Lake.

Unfortunately, subsequent decisions by the CA court with regard to natural resources have not referenced Mono Lake so the case remains as somewhat of an outlier.