LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 11
whose import to commerce is obvious, it has been extended to include state trusteeship over
natural resources 30 with little or no commercial value, such as non-navigable waters, 31 and state
parks. 32
Additionally, although the public trust doctrine speaks in terms of duties and not NRD,
the nexus between resources that are recognized as being held in trust by the state is their
importance to the general public, aesthetically as well as commercially.
This importance
supersedes the natural resources’ potential value from exploitation by any one individual. More
recent cases have recognized that the trust is active, not passive, and imposes a responsibility on
states to preserve and promote the trust corpus. 33
Thus, a pattern has emerged in which states are
directed to take a more proactive approach in order to fulfill their obligations and responsibilities
with regard to the protection of natural resources.
Recognizing that the state has an important interest in conserving and protecting natural
resources, the doctrine of parens patriae allows the state (in its capacity as “trustee”) to bring
suit to protect those natural resources. This type of suit, recognized in many states, 34 allows the
trustee (state) to sue to make the trust (natural resources) whole, whether by means of restoration
30 The legal fiction of state ownership of natural resources was abandoned in Hughes as being inconsistent with the
Commerce Clause, however, the Supreme Court in that case recognized the important interest at stake. The
Supreme Court stated, “We consider the States’ interests in conservation and protection of wild animals as
legitimate local purposes similar to the States’ interests in protecting the health and safety of their citizens.” Hughes,
441 U.S. at 337.
31 See National Audubon Society v. Superior Court of Alpine County, 658 P.2d 709 (Ca. 1983), cert. denied, 464
U.S. 977 (1983).
32 See Sax, supra n. 26, at 485; Davenport v. Buffington, 97 F. 234 (8th Cir. 1899); Gould v. Greylock Reservation
Commission, 215 N.E.2d 114 (Mass. 1966).
33 See, e.g., National Audubon Society, 658 P.2d at 724-725; City of Milwaukee v. State, 214 N.W. 820 (Wis. 1927).
34 See, e.g., Maine v. M/V Tamano, 357 F. Supp. 1099 (D. Me. 1973); Department of Natural Resources v.
Amerada Hess, 350 F. Supp. 1060, 1067 (D. Md. 1972); Department of Fish & Game v. S.S. Bournemouth, 307 F.
Supp. 922, 925 (C.D. Cal. 1969); Department of Envtl. Protection v. Jersey Cent. Power & Light Co., 336 A.2d
750, 759 (N.J. Super. Ct. App. Div. 1975), rev’d on other grounds, 351 A.2d 337 (N.J. 1976); State v. Bowling
Green, 313 N.E.2d 409, 411 (Ohio 1974); State Department of Fisheries v. Gillette, 621 P.2d 764, 766-67 (Wash. Ct.
App. 1980).
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM