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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