Research On The Public Trust Doctrine Of Natural Resources In United States

Long ago there developed in the law of the Roman Empire a legal theory known as the "doctrine of the public trust." It was founded upon the very sensible idea that certain common properties, such as rivers, the seashore, and the air were held by the government in trusteeship for the free and unimpeded use of the general public. Our contemporary concerns about the "environment" bear a very close conceptual relationship to this venerable legal doctrine.In response to the natural resources and environmental crisis of the latter half of the twentieth century, the United States broadly applies to the public trust doctrine. The public trust doctrine is part of the common law and dates back to the Roman Empire. It really arose in nineteenth century from a variety of sources. The fundamental one is the old/new “Stoic” and natural law sentiment that public resources should be common to all. Added to that sentiment was the distinction then emerging in England between the public and private roles of the sovereign.The public trust doctrine is being codified in many state constitutions. In some cases, even absent a constitutional provision, state courts have read the public trust into existing constitutional provisions. Thus, the public trust doctrine, enjoying codification, is no longer just an ancient common law doctrine. The trend toward the constitutionalization of the public trust doctrine frees it from the stigma(and restraints therein) of being a theoretical common law doctrine.One important effect of constitutionalization is that it gives credence to the notion that the public trust doctrine is constantly evolving. This makes it even harder to argue that the resource in question is not part of the public trust simply because it has not been historically covered by the doctrine.By attaching the public trust doctrine to state constitutions with "breadth and flexibility," the public trust doctrine is greatly expanded.In its early form, the public trust doctrine applied to submerged lands, the foreshore and navigable waters and protected the public’s rights and interests in navigation, fishing, and commerce. Since the 1970 s, states and courts have extended the scope of the doctrine to protect other public uses including hunting, boating, swimming, bathing, and other recreational activities. Under the influence of changing public perceptions, states have applied the public trust doctrine to preserve and protect tidelands and other environments that provide food, shelter and habitat for birds and marine life and that enhance the scenery and climate of certain areas. The geographical reach of the doctrine has also been expanded. The public trust doctrine now also encompasses non-navigable waters and streams as well as parks, land, wetlands and wildlife. Thus, compared to its original scope, the public trust doctrine has been expanded considerably.The trust reposed in the state is not a passive trust; it is governmental, active and administrative. Representing the state in its legislative capacity, the legislature is fully vested with the power of control and regulation. The equitable title to those submerged lands vests in the public at large, while the legal title vests in the state, restricted only by the trust, and trust, being both active and administrative, requires the law-making body to act in all cases where action is necessary, not only to preserve the trust, but to promote it. The state’s role as sovereign over trust lands imposes certain environmental duties that it owes to the public and are thus enforceable by the public. Under the public trust doctrine, the state may not destroy or relinquish its control over public resources except under certain, very narrow circumstances.Although states have broad discretion implementing fiduciary obligations imposed by the public trust, states are not free to alienate or extinguish the trust. The public trust doctrine holds that government must act as a fiduciary in its management of the resources which constitute the corpus of the trust. Public trust resources are protected by the trust against unfair dealing and dissipation, which is classical trust language suggesting the necessity for procedural correctness and substantive care. The public trust doctrine demands fair procedures, decisions that are justified, and results that are consistent with protection and perpetuation of the resource.If public trust doctrine is to provide a satisfactory tool, it must meet three criteria. It must contain some concept of a legal right in the general public; it must be enforceable against the government; and it must be capable of an interpretation consistent with contemporary concerns for environmental quality. Since 1970 the public trust doctrine indisputably has had a major impact on litigation brought by parties on behalf of natural resource protection, an impact more than sufficient to call for a close accounting of its rise and an evaluation of its continuing vitality. Numerous parties have relied on modern public trust theories to support their litigation objectives and in turn the courts have adopted those theories. The cases since 1970 fall into three basic categories:(1) private citizens suing the government for allegedly violating the doctrine;(2) private citizens suing other private parties for allegedly violating the doctrine; and(3) the government suing private parties for allegedly violating the doctrine. Even so, certainly the phrase “public trust” does not contain any magic such that special obligations can be said to arise merely from its incantation; and only we could extract the seeds of ideas from binding precedent and the classical literature, combined with present situation of natural resource and environment protection in our country, then promote effectively the development of China’s natural resources and environmental protection theory and Practice.