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Conservation and the Public Trust Doctrine

Issue Analysis

Title

Conservation and the Public Trust Doctrine

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The public trust doctrine has been evolving since Roman times, when Justinian set out a list of things common to everyone by the law of nature – the air, running water, the sea, and consequently the shores of the sea. Later, the public trust doctrine came to be regarded as the common right to pass through navigable waters; in other words, a protection of commercial activities. Today, there is great pressure for the expansion of the public trust doctrine, applying (at least in court if not in law) to such things as recreational access to the shore and to waterways, salmon migrations, and even viewsheds.

Nevertheless, the aim of public trust doctrine today is still simply defined as preserving and protecting submerged and submersible lands for public use in navigation and fishing. It also implies that the state, as trustee for the people, bears the responsibility ensuring public access for those purposes. Determining just what activities and amenities those purposes encompass, however, is not a simple task, and there has been much debate in recent years over how far the public trust should be extended and what sort of access is reasonable. Unfortunately, little attention has been paid to the effects of this expansion on the very resources the public trust doctrine has been tasked to protect.

Proponents of these most recent expansions of the public trust often do so in the name of improving environmental quality. But in light of some very successful private conservation initiatives, there is some question of whether exerting common rights at the expense of private ones actually results in a net benefit to the environment. Thus, as part of its efforts to consider the viability of private approaches to solving environmental problems, on September 9, 1998 the Center for Private Conservation hosted a roundtable discussion on the effects of the public trust doctrine on conserva-tion. The panel of experts gathered included Jim Burling of the Pacific Legal Foundation, Dean Jim Huffman of the Lewis & Clark Law School, Professor Bonnie McCay of Rutgers University, and Bill Snape of Defenders of Wildlife.

Citing case law along with anecdotal evidence, the lively discussion looked at how the public trust doctrine has evolved over time and what effects it has had on conservation, both public or private, and how, if it has created problems, might things be improved. Or in other words, tried to answer the question “To what extent does the application of the public trust doctrine in certain contexts encourage, discourage, allow or disallow, conservation and protection?”