LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 13
fish factory. 39
The government sought an injunction against the factory to abate foul smells that
were making the quarantined individuals sick. 40 The court granted relief, enjoining the nuisance,
in spite of the equitable right of the defendant. 41
From this case, one can see the interaction of the public trust doctrine and public nuisance
claims and their applicability to NRD with regard to the ability to file suit. In Luce, the court
recognized that the United States had a responsibility to the quarantined individuals under its
care. 42
This responsibility is analogous to the responsibility of the government to protect natural
resources which are held under its care for the common good. The Luce court also allowed the
government to sue prospectively to stop an activity that was harming those under its care. 43
Similarly, the government should be able to sue prospectively to protect natural resources under
its care from damage, or, if the damage has already occurred, sue on behalf of the trust to recover
compensation for injury.
2. Federal Trustees
Pursuant to the public trust doctrine, as first discussed by the United States Supreme
Court in Martin v. Waddell, “when the revolution took place, the people of each state became
themselves sovereign; and in that character hold the absolute right to all their navigable waters,
and the soils under them, for their own common use, subject only to the rights since surrendered
39 141 F. 385 (C.C.D. Del. 1905).
40 Id. at 390.
41 Id. at 422-423.
42 Id. at 419.
43 Id. at 422-23.
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM