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24 J. Land Resources & Envtl. L. 173 (2004)
The Public Trust Doctrine in Federal Law

handle is hein.journals/lrel24 and id is 185 raw text is: The Public Trust Doctrine in Federal Law Eric Pearson Professor of Law Creighton University School of Law The public trust doctrine was a revered part of natural resources law long before America even had natural resources law. In fact, the doctrine was a revered part of natural resources law long before America was discovered. Originating in ancient Rome and after a hearty adolescence in merry England, the doctrine made its way to American shores with the first settlers.' It has thrived on these fruited plains. In one form or another, the doctrine now resides in the law of all fifty states,2 and it has even received a fawning imprimatur from no less than the United States Supreme Court.3 While the doctrine can originate in constitutional or statutory law, typically its genesis is judicial decision. The public trust doctrine is well named because, in its classic form at least, it is in every real sense exactly that, a trust for the public. Here, though, the trustee is the government and the trust res is public land of value to the citizenry. Because of the public trust, the government-trustee-titleholder is not free to do as it will with the lands. Rather, it is duty-bound to manage the trust res for the benefit of the public. Consequently, the doctrine authorizes judicial invalidation of any action found to be adverse to the interests of the public. Historically, the public trust doctrine manifested three fundamental features. First, it has always embodied a particular substantive content, namely protection and conservation of land. Consistent with that content, the doctrine has been used to keep lands available for the use and enjoyment of the public. It has not been used, conversely, to facilitate the conventional development of land and natural resources for private use. Second, the doctrine has always had a specific scope: it has applied to highly valued public lands. Included among these lands are those submerged under navigable waterways. Last, the doctrine has taken on a precise form: because it is a public trust doctrine, it has restricted the exercise of governmental power, not supplemented it. At its heart, the doctrine declares the legislative and executive branches of government to be without authority to act in derogation of trust principles. 1 See Jan S. Stevens, The Public Trust: A Sovereign's Ancient Prerogative Becomes the People's Environmental Right, 14 U.C. DAVIS L. REv. 195 (1980); see Richard J. Lazarus, Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine, 71 IOWA L. REV. 631 (1986); see Richard Ausness, Water Rights, the Public Trust Doctrine, and the Protection ofinstream Uses, 1986 U. ILL. L. REV. 407 (1986). 2See Charles Wilkinson, The Headwaters ofthePublic Trust: Some Thoughts on the Source and Scope of the Traditional Doctrine, 19 ENVT'L L. 425 (1989). The first state to adopt the doctrine was New Jersey. Arnold v. Mundy, 6 N.J.L. I (1821). 3 I11. Cent. R.R. v. Illinois, 146 U.S. 387 (1892).

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