LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 10
navigable waters in trust for the use and benefit of the public. 26
The public trust doctrine was
first applied in case law pertaining to disputes over navigable waters. These cases began with
the premise that navigable beds, critical to commerce, were owned by the state and held in
common by the state for public use. In the early American case of Home v. Richards, 27 the court
held that the bed of a navigable river within the Commonwealth could not be granted to an
individual. 28
The general scope of the doctrine is well articulated in the seminal United States
Supreme Court case of Illinois Central Railroad Co. v. Illinois:
That the state holds the title to the lands under the navigable waters of Lake
Michigan, within its limits, in the same manner that the state holds title to soils
under tide water, by common law, we have already shown; . . . It is a title held in
trust for the people of the state, that they may enjoy the navigation of the
waters . . . and have liberty of fishing therein . . . The trust devolving upon the
state for the public, and which can only be discharged by the management and
control of property in which the public has an interest, cannot be relinquished by a
transfer of the property. The control of the state for the purposes of the trust can
never be lost . . . 29
Although the public trust began with a more limited focus during an era of relatively
weak environmental understanding, the trend over time has been to expand protection to an
equally broad array of natural resources. Since the doctrine’s first application to navigable beds,
26 Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L.
REV. 471 (1970); V. YANNACONE, B. COHEN & S. DAVIDSON, ENVIRONMENTAL RIGHTS AND REMEDIES 1, § 2:3
(1972).
27 8 Va. (4 Call) 441 (Va. 1798).
28 Over the years, because the doctrine was used in relation to waterways, some confusion arose about the public
trust and its relation to riparians. See, e.g., Groner v. Foster, 27 S.E. 493 (Va. 1897) (emphasizing rights of
riparians in navigable waters); Taylor v. Commonwealth, 47 S.E. 875 (Va. 1904)(reconciling rights of the riparian
with public rights); Commonwealth v. Garner, 44 Va. (3 Gratt.) 655 (Va. Gen. Ct. 1846) (noting that navigable
streams were the property of the Commonwealth, held for the public benefit). Nonetheless, the principle that
government has a proprietary interest in natural resources survived. See, e.g., Toomer v. Witsell, 334 U.S. 385, 408
(1948); Geer v. Connecticut, 161 U.S. 519, 534 (1986), overruled on other grounds by Hughes v. Oklahoma, 441
U.S. 322 (1979).
29 146 U.S. 387, 452-453 (1892)(emphasis added).
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM