Contents

Intro..............................................................................................................................................1
Legal Background of the Public Trust Doctrine..........................................................................2
Preliminary considerations.......................................................................................................4
Attributes of the Trust Res.......................................................................................................7
Ongoing expansion of the Doctrine........................................................................................14
The Analogy to the means of production...................................................................................17
Problems with the argument......................................................................................................22
Is it even an analogy?.............................................................................................................22
We’d be creating new trusts out of nowhere!.........................................................................24
Doesn’t the Doctrine only apply to states’ property?.............................................................24
Isn’t this just an elaborate loophole to avoid paying for takings?..........................................25
This is a Pandora’s box..........................................................................................................26

Intro

The economic race to the bottom does not leave any winners. Capitalism has always

featured economic races to the bottom, but in recent years this tendency has intensified in the

United States. The post 2008 “recovery” was deeply inequal across the United States.1 Most

counties were left behind, while only a small few account for the lion’s share of post-recession

job gains. Outsourcing has devastated communities as corporations chase cheaper wages

overseas. Capital flight has allowed corporations to move their investments to countries or states

with more lax regulations. And the threat of capital flight has allowed corporations like Boeing

and Amazon to publicly humiliate states as the states fawn over the corporations with offers of
1
THE NEW MAP OF ECONOMIC GROWTH AND RECOVERY, (2016), https://eig.org/wp-
content/uploads/2016/05/recoverygrowthreport.pdf (last visited Jul 21, 2019)
tax breaks and subsidies2. The depressed value of some companies has left them as prey to

mergers where they get consumed and cannibalized by their former competition when they are

bought out. These intensifying patterns have left many communities in the lurch. Owners of

capital who “assume the risk” of doing business are often able to simply walk away from

communities, while the less mobile workers suffer from unemployment, privation, instability,

and, startlingly, opioid epidemics and related collateral social impacts.3

This intensifying pattern of conduct by governments and businessmen undermines the

stability of our social order. Traditionally, common law tort claims have been mustered where

this social contract is undermined. In the past, communities brought nuisance claims against

polluters. Negligence claims have been used against manufacturers for faulty goods. Wrongful

death claims have been used against preventable workplace deaths and deaths in communities.

Do communities have a cause of action where an individual or local government forsakes the

economic wellbeing of that community and devastates the economic stability of hundreds or

thousands of families? This paper will explore the use of the Public Trust Doctrine as a possible

cause of action against businessowners and governments who forsake their communities.

This paper will investigate this question step by step. First it will give a brief background

of the Doctrine. Next it will pull out case law to demonstrate the types of analogy and

characteristics of the trust res that courts have recognized. After that, it will examine some of the

2
Marth C White, Corporate tax breaks can backfire - as New York City just found out NBCNews.com (2019),
https://www.nbcnews.com/business/business-news/corporate-tax-breaks-can-backfire-new-york-city-just-found-
n971761 (last visited Jul 21, 2019)

Michael Hiltzik, Column: Boeing got a record tax break from Washington state and cut jobs anyway. Now the state
wants to strike back Los Angeles Times (2017), https://www.latimes.com/business/hiltzik/la-fi-hiltzik-boeing-
washington-20170503-story.html (last visited Jul 21, 2019).
3
Olga Khazan, The Link Between Opioids and Unemployment The Atlantic (2017),
https://www.theatlantic.com/health/archive/2017/04/joblessness-and-opioids/523281/ (last visited Jul 21, 2019).
core scholarship behind the current environmental interest in the Doctrine, as well as an ongoing

attempt to expand the Doctrine. Pulling all these elements together, the paper will then explore

an analogy between traditional trust properties and the means of production. Finally, the paper

will consider various criticisms of the claim.

Legal Background of the Public Trust Doctrine

The history and origins of the Public Trust Doctrine are integral to our inquiry because

they shape the underlying goals of the Doctrine and help to explain its boundaries. If the

Doctrine were of recent provenance, then its designers would be aware of recent leaps in

technology and impacts of human economic behavior. Therefore, the limits on the application of

the Doctrine should be understood more concretely and to be more intentional. However, as the

Doctrine sinks back into the oblivion of history, we must interpret it more broadly as a guiding

principle rather than as a specific claim. We can compare this to the principles of constitutional

interpretation. If the fourth amendment were written today it would appear much different, either

the language would be a list of all of the modern means of communication and monitoring that

are also protected against search, or the language would be broader to anticipate future, currently

unknown, technologies. Since it comes from a past where many technologies did not exist, we

must discern the underlying principles and apply it to today’s issues. This same lens should be

applied to the Public Trust Doctrine.

The Public Trust Doctrine has an ambiguous history. Some legal scholars trace it back to

times prior to Justinian.4 Others to the Magna Carta.5 In either case the Doctrine predates

industrial capitalism and the founding of the United States. The Public Trust Doctrine became

widely recognized in American common law with Illinois Central Railroad Co. v. Illinois in
4
Michael C Blumm & Mary C Wood, in The Public Trust Doctrine in Environmental Law and Natural Resource Law
12 (2013).
5
Id. at 14.
1892. While some states had previously acknowledged a Public Trust duty this case solidified it

as an acknowledged Doctrine country wide.

The Doctrine exists principally as a form of common law with an ambiguous

constitutional basis. Some legal scholars contend that it has its basis in the Commerce Clause,

the supremacy clause,6 and a recent decision out the federal court in Eugene, Oregon places it in

the 5th amendment as a fundamental right inhering to sovereignty. Juliana v. United States, 217

F. Supp. 3d 1224, 1261 (D. Or. 2016).

All of this is to say that the persuasiveness of the Doctrine varies based on the case law of

a given state or circuit. Claims that invoke the Doctrine are often dismissed as overreaching7,

contrary to existing statutory regimes (for example administrative processes involving the care of

natural resources under federal control8), or because they are “political questions.9”

A further trouble with the application of the Doctrine is its interaction with private

property rights. Property holders might be blindsided by the Doctrine because the terms of the

Doctrine are not clearly spelled out as encumbrances or appurtenant to their, often, longstanding

fee simple title. This is especially the case for property that is affected by broadening

interpretations of the Doctrine.

6
Michael C Blumm & Mary C Wood, in The Public Trust Doctrine in Environmental Law and Natural Resource Law
48 (2013).
7
For example, White Bear Lake Restoration Ass'n ex rel. State v. Minn. Dep't of Nat. Res., No. A18-0750, 2019
Minn. App. LEXIS 141, at *32 (Ct. App. Apr. 22, 2019).

8
Alec L. v. Jackson, 863 F. Supp. 2d 11, 17 (D.D.C. 2012)
9
For example, Chernaik v. Brown, 295 Or. App. 584, 589, 436 P.3d 26, 29 (2019)
Preliminary Considerations

In this section I will explore what the Doctrine applies to. However, before relevant case

law can be explored there are two interrelated questions that must first be explored. First, what

are the first principles of the Doctrine? In other words, when a case says that the Doctrine

protects public fishing, commerce, and navigation rights to intertidal waters how deep is it

appropriate to go in search of a guiding principle. Is it sufficient to stop at the category of

intertidal waters or is it more appropriate to look at the properties of these waters to find guiding

principles? Permutatively, is it then appropriate to then look at the underpinnings of these

principles for guidance? And, dare we go a step deeper? How far down into the intertidal waters

should we look? That is we can start at a concrete type or property – intertidal waters. This

property is relatively bounded and limited. However, the courts provide justifications for

selecting intertidal waters. We are told this property is of particular public concern because it is

important for fishing, navigation, and commerce. Logically this begs the question, as it assumes

the self-evidence of the value of fishing, navigation, and commerce. What do these justifications

stand for and are they the end of the inquiry? If our goal is to preserve fishing does that also

imply the need to protect the ecological integrity of rivers to protect the fish? Is fishing also

about other food sources too? Does the emphasis on navigation and commerce point to a more

foundational interest in economic livelihood? Does the inalienable encumbrance on vital

property suggest an intrinsic right of the people to check the alienation of public interested

property to private interests? Does the inalienability of fishable and commercial/navigable waters

suggest that communities (both human and biotic) have a right to continue in perpetuity? The

traditional justifications of the Doctrine and the inalienable encumbrance seem to infer or invite

deeper justifications and penumbral extrapolations of public rights and interests.

 This question is troubling because pointing to the category of intertidal waters is

simultaneously concrete yet arbitrary. We can say with authoritative surety that the Doctrine

does include intertidal waters. But, why those waters? What is the logical basis for pointing to

those waters? What are the properties of intertidal waters that merit protection? If other lands

share those properties, do they also merit the same type or degree of protection?

Fortunately, as we look deeper into the intertidal waters for a logical foundation, we are

able to find general principles that provide a logical reason for the trusteeship over those waters,

but those logical reasons tend to be broader and to point to other resources and property that

ought too to be included into trusteeship. We might say that the intertidal waters erode away at

the abutting property, pulling in adjacent lands inexorably. As we delve deeper the logic

becomes more concrete and points to broader categories of property to protect, but it also drifts

away from existing caselaw. This investigation has a clear tension between being grounded in

the arbitrary yet known bounds of caselaw and leaving the known applications of caselaw to find

the logical firmament underlying the Doctrine.

The question finds us at the traditional impasse of Western Philosophy. The Western

Enlightenment tradition is the tradition of people like Descartes, who meditated about wax and

questioned everything and only concluded what they could firmly and logically justify. On the

opposite pole, are men with a classical education who find themselves in the halls of power and

nod knowingly of our legal traditions only to affirm them as self-evidently true and righteous. It

is the tension between the rule of law and tradition, and the pull toward critical reason. Marx

wrote “But, if constructing the future and settling everything for all times are not our affair, it is

all the more clear what we have to accomplish at present: I am referring to ruthless criticism of

all that exists, ruthless both in the sense of not being afraid of the results it arrives at and in the
sense of being just as little afraid of conflict with the powers that be.”10 It is in this spirit that

progress has been made in the enlightenment tradition, not in the rigors of reifying what is

already believed. We must acknowledge the existence of curmudgeonly men in power and

conclude that this paper, as true or critical as it may be, is mostly an exercise of analogical

thinking.

The next question is to consider the degree to which the Doctrine is an environmental

Doctrine at all. Many of the cases that consider the Doctrine today do so through a contemporary

lens. They often consider the ecological and recreational trust values along with the traditional

navigation and fishing trust obligations. At the time of adoption of the Doctrine – whether it be

the Magna Carta or the establishment of colonies in North America and the propagation of the

Common Law thereafter – Fish and Navigation servitudes had very different meanings than they

do today. Similarly, the ideas of conservation, ecology, climate change, and the various other

environmental calamities facing society today simply weren’t apart of the social

conscientiousness.11

Relatedly, it is relevant to consider the impact of economic class upon jurisprudence.

While sport fishing did arise around the time of the English Civil war, we must consider whether

the Doctrine should be considered to protect interests like sport fishing and river recreation, or

whether the claim it protects is more akin to the fishing rights reserved by tribal treaties – that is,

subsistence rights to a modest living.12 The access to wealth and thereby food has often made the

10
Karl Marx, Letters from the Deutsch-Französische Jahrbücher (1843),
https://www.marxists.org/archive/marx/works/1843/letters/43_09.htm (last visited Jul 21, 2019).
11
Raphael D Sagarin & Mary Turnispeed, The Public Trust Doctrine: Where Ecology Meets Natural Resources
Management (2012), file:///C:/Users/Byron/Documents/L&C/Capstone/Martinez-Alier - 2002 - The
Environmentalism of the Poor (unpublished).pdf (last visited Jul 21, 2019).
Pg. 11
12
United States v. Brown, No. 13-68 (JRT/LIB), 2013 U.S. Dist. LEXIS 168138, at *4 (D. Minn. Nov. 25, 2013)
wealthier elements of our society distanced from the sources of food. Whereas poorer people

have always been closer to the land which they predominantly work. In this sense a fishing

servitude upon the intertidal rivers has a very different meaning as interpreted by a poorer person

than a typical member of the judiciary.13 All of this isn’t to say that including ecological values

and recreation are wrong-headed, but rather that they may give other aspects of the Doctrine

short shrift. In this light, when a fisher comes to a court and says that the sovereign has

abandoned its trust duties and there are no longer fish, what are the key principles? Is the fisher’s

claim equivalent to a sport fisher who may no longer fish? Or is their claim more foundational, a

right to live off the land or to economic stability?

For further consideration is the role of the Doctrine as a check on the sovereign. The

Doctrine cuts both ways. On the one hand the Doctrine secures for the sovereign an interest in

public trust lands that cannot be alienated. All public trust lands that are granted title to private

hands always retain the public trust servitude and can therefore be recalled back to the sovereign

to be put to greater and higher use in the public interest without invoking a taking. On the other

hand, the Doctrine works to check the wayward tendencies of the sovereign. Originally, the

Doctrine was intended, in part, to curtail the monarchy’s tendency to grant land titles in a

relatively haphazard manner.14 Today, the Doctrine is invoked by the public to check the actions
Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 686-87, 99 S. Ct. 3055, 3075
(1979)
13
Columbia River Fishermen's Protective Union v. St. Helens, 160 Ore. 654.
In this case water was being polluted and killing fish and the court acknowledge the livelihood of the fishers relying
on the fish. The fish were an acknowledged public trust resource

“Estimates indicate state oyster production creates about 10,000 jobs and generates $ 266 million a year in
Louisiana.” Avenal v. State, 03-3521 ( La. 10/19/04), 886 So. 2d 1085, 1111.

David Sunding & Steven Buck, FISH CONSUMPTION IN PORTLAND HARBOR (2012),
http://media.oregonlive.com/environment_impact/other/Fish Consumption Study.pdf (last visited Jul 21, 2019).

14
James L. -Huffman, A Fish Out of Water: The Public Trust Doctrine in a Constitutional Democracy, 19 ENVTL. L.
527, 552-555 (1989); at 550
of the sovereign. That is, where the sovereign grants title to lands protected by the Doctrine to a

private entity, and the private entity intends to use the land in a manner that undermines the

public interest, then the Doctrine may be invoked to stop that private action and thereby reign in

the wayward actions of the sovereign. The Doctrine, in this sense, acts both to empower the

sovereign with their inalienable claim to trust lands (and thereby avoid takings), and to empower

the public to hold the sovereign to account as a ward of the trust.

Attributes of the Trust Res

The previous section raised questions that will color our entire analysis. This section will

look to caselaw and scholarship to discern the features and probative criteria of the Doctrine. It is

in these murky waters that we will search for our underlying first principles. We will first

examine the Illinois Central Railroad Co. v. Illinois case. This case merits being cited at length

because it is foundational to American Public Trust jurisprudence and because the court engages

in expansive and analogical thinking that is imperative to our larger project.

The following passage suggests that the Public Trust Doctrine should be understood more

expansively than just applying to navigable waters. In pertinent part it states:

“The State can no more abdicate its trust over property in which the whole people are
interested, like navigable waters and soils under them, ….So with trusts connected with
public property, or property of a special character, like lands under navigable waters, they
cannot be placed entirely beyond the direction and control of the State.” Ill. C. R. Co. v.
Illinois, 146 U.S. 387, 453-54, (1892).

Here the Supreme Court mentions “property in which the whole people are interested” and

“property of a special character.” In both instances the phrase is followed by a comma and then

“like navigable waters and the soils under them”. This means that navigable waters are a logical

subset of property in which the whole people are interested or property of a special character.
Therefore, the category of public trust property should apply to a larger set than just the narrow

navigable waters. We should consider the following: How strong does the public interest have to

be? What are the special characteristics?

The idea that the public trust applies beyond navigable waters is reflected in another

passage of the case. The following passage serves to demonstrate that the category of intertidal

waters is inherently arbitrary:

"There is certainly nothing in the ebb and flow of the tide that makes the waters
peculiarly suitable for admiralty jurisdiction, nor anything in the absence of a tide that
renders it unfit. If it is a public navigable water, on which commerce is carried on
between different States or nations, the reason for the jurisdiction is precisely the same.
And if a distinction is made on that account, it is merely arbitrary, without any foundation
in reason; and, indeed, would seem to be inconsistent with it." Ill. C. R. Co. v. Illinois,
146 U.S. 387, 436, (1892).

This passage shows that the Public Trust applies to navigable waters regardless of whether they

are affected by tides. Traditionally the public trust applied to intertidal waters. This case dealt

with the Illinois River through Chicago, which is not affected by the tides as it is connected to

the Great Lakes and not an Ocean. The Court doesn’t appear to give a clear limitation to the

Public Trust Doctrine. The “reason for the jurisdiction” is not entirely clear.

A subsequent, and lengthy passage gives clues to the “reason for the jurisdiction”. Here

we see that the underlying reason for the Doctrine is public interest in the trust.

“The Great Lakes are not in any appreciable respect affected by the tide, and yet on their
waters, as said above, a large commerce is carried on, exceeding in many instances the
entire commerce of States on the borders of the sea. …The public being interested in the
use of such waters, the possession by private individuals of lands under them could not be
permitted except by license of the crown,  which could alone exercise such dominion
over the waters as would insure freedom in their use so far as consistent with the public
interest. The Doctrine is founded upon the necessity of preserving to the public the use of
navigable waters from private interruption and encroachment, a reason as applicable to
 navigable fresh waters as to waters moved by the tide.” Ill. C. R. Co. v. Illinois, 146 U.S.
387, 436-37, (1892).

A handful of lines pop out from this passage. First, the Court notes the scale of the commerce on

the river and how it is larger than some states’ commerce on the sea. It is obviously the case

today that other channels of commerce are larger than states’ riverborne commerce. Second, “the

public being interested in the use of such waters” suggests that the public interest in the use of a

property factors into the “reason for the jurisdiction.” Third, “would insure freedom in their use

so far as consistent with the public interest”. This suggests that the Public Trust Doctrine is

malleable. Since the public interest is not static it makes sense that the Doctrine would shift to

accommodate changing public interests. Fourth, the court notes that “the Doctrine is founded

upon the necessity of preserving to the public the use of navigable waters…”. This means that

the Public Trust Doctrine springs from public necessity. The key element in this section appears

to be the element of public interest in the use and private use inhibiting that use. It is not clear

why this Doctrine would not apply to other channels of commerce such as highways.

For various reasons Public Trust questions have not been heard before federal courts for

many years. Under the Erie Doctrine the federal courts stepped away from federal common law

claims. Under Texas Indus. v. Radcliff Materials, 451 U.S. 630 (1981) federal courts have

returned to a mild form of federal common law but only under limited circumstances.

Furthermore, Milwaukee v. Illinois, 451 U.S. 304 (1981) introduced congressional preemption of

federal common law claims and Alec L. v. Jackson, 863 F. Supp. 2d 11 (2012) introduced the

idea that the federal public trust could be preempted by Congress.

The District Court in Eugene in the ongoing Juliana case disagrees that the Public Trust

can be preempted. The Court bluntly disagreed stating:

 “In AEP, the Court did not have public trust claims before it and so it had no cause to
consider the differences between public trust claims and other types of claims. Public
trust claims are unique because they concern inherent attributes of sovereignty. The
public trust imposes on the government an obligation to protect the res of the trust. A
defining feature of that obligation is that it cannot be legislated away. Because of the
nature of public trust claims, a displacement analysis simply does not apply.” Juliana v.
United States, 217 F. Supp. 3d 1224, 1260 (D. Or. 2016).

However, given the increasingly conservative nature of the federal courts it is not clear that this

opinion will survive the gauntlet of appeal and review. Nor is it clear that the Juliana opinion will

be emulated by other circuits. Federally, it appears to be an open question whether the federal

Public Trust exists.

State Courts
Since Ill. C. R. Co. v. Illinois, the Doctrine has developed as state common law with each

state developing largely independently. Rather than focusing on a single state’s Doctrine, the

following investigation will look at a smattering of public trust cases from different states

looking for jurisprudential footholds.

Let us consider the case of Matthews v. Bay Head Improv. Asso., (1984) from New

Jersey. This case has a complex fact pattern. Roughly summarized, the case involves a non-profit

that owned property along the coast. The non-profit restricted use of the beach to association

members only. The Court in this case objected and said that, especially with non-profits, where

their service is a necessity or a public good, that they can only restrict access where it is

necessary and in line with their mission. The court drew upon previous case law where hospitals

had restricted access:

“Noting that the Medical Society was not simply a social organization, the Court viewed
membership as an economic necessity and asserted that courts ‘must be particularly
alert to the need for truly protecting the public welfare and advancing the interests of
justice by reasonably safeguarding the individual's opportunity for earning a livelihood
 while not impairing the proper standards and objectives of the organization.’” Matthews
v. Bay Head Improv. Asso., 95 N.J. 306, 328, 471 A.2d 355, 367 (1984).

What is important here is the pairing of “a nonprofit association that is authorized and endeavors

to carry out a purpose serving the general welfare of the community,” Id., with economic

necessity to impose Public Trust duties appurtenant to that property. This logic may be open to

broadening since the court noted the ways in which the municipality aided the association by

waiving taxes, appropriating funds to aid the association, granted them free office space, paid for

land improvements on the associations property, and covered them under the borough’s liability

insurance. Id at 368.

Increasingly, these are services conducted by local and state governments to retain

industry. This is most recently—and cartoonishly—demonstrated by states throwing tax breaks

and subsidies at Amazon in hopes of Amazon building a new headquarters in their state. This

case might be limited in application because it applied to a non-profit. As a final note from this

case the court stated “Archaic judicial responses are not an answer to a modern social problem.

Rather, we perceive the Public Trust Doctrine not to be ‘fixed or static,’ but one to ‘be molded

and extended to meet changing conditions and needs of the public it was created to benefit.’”

Avon, 61 N.J. at 309.” Matthews v. Bay Head Improv. Asso., 95 N.J. 306, 326, 471 A.2d 355,

365 (1984). This continues the theme of the Doctrine being malleable and adapting to the needs

of the public and is repeated in other cases. Nat'l Audubon Soc'y v. Superior Court, 33 Cal. 3d

419, 434, 189 Cal. Rptr. 346, 356, 658 P.2d 709, 719 (1983).

The case of Columbia River Fishermen's Protective Union v. St. Helens (1939) explores

the role of public trust resources as an economic livelihood for communities. The facts of this

case are relatively straight forward. The defendants were polluting the Willamette and Columbia
Rivers and thereby killing fish. The Fishers sued to restrain the defendants. The Court states:

“Thousands of citizens of Oregon earn their livelihood by catching salmon, and the business

aggregates hundreds of thousands of dollars annually. All the citizens of Oregon have a common

right to fish in the waters mentioned in the complaint, and to deprive any one citizen of that right

is to violate the state constitution.” Columbia River Fishermen's Protective Union v. St. Helens,

160 Or. 654, 661, (1939). A little later, the Court notes “this suit is not brought for the purpose of

obtaining the salmon but to protect the right of fishermen to pursue their vocation of fishing” Id.

What this case shows is that economic livelihood is an aspect of the public interest that can

animate the state’s trusteeship over the trust res.

Another element of the Public Trust Doctrine is the type of economic benefit that can be

derived from the trust. The Public Trust Doctrine does not prohibit private profit from the

exploitation of the trust resources per se. Nor is incidental public benefit sufficient. The

Doctrine, instead, draws a different line. In People ex rel. Scott v. Chi. Park Dist. (1976) the state

of Illinois elucidated an aspect of that line:

“… to preserve … the Public Trust Doctrine… the public purpose … cannot be only

incidental and remote. The claimed benefit here to the public through additional
employment and economic improvement is too indirect, intangible and elusive to satisfy
the requirement of a public purpose. In almost every instance where submerged land
would be reclaimed there would be employment provided and some economic benefit to
the State. This court has upheld grants where the land was to be used for a water filtration
plant ( Bowes v. City of Chicago, 3 Ill. 2d 175) and for an exposition hall ( Fairbank v.
Stratton, 14 Ill. 2d 307), but it has upheld a grant to private individuals in only one
instance, People ex rel. Moloney v. Kirk, 162 Ill. 138. There, however, as has been
pointed out, the main purpose of the legislation was to benefit the public by the
construction of an extension of Lake Shore Drive. The benefit to private interest was to
further a public purpose and was incidental to the public purpose. (See also City of
Milwaukee v. State (1927), 193 Wis. 423, 214 N.W. 820.)”People ex rel. Scott v. Chi.
Park Dist., 66 Ill. 2d 65, 80-81, 4 Ill. Dec. 660, 668, 360 N.E.2d 773, 781 (1976).
From this passage we see that the public benefit cannot be remote or indirect. Private enterprise

that happens to create a few jobs during construction would not be sufficient as any exploitation

of the public trust would invariably result in some incidental employment. The common vein

among the examples given is that they are long term public goods. The public benefit extends

beyond the period of construction. The state of California held similarly in San Francisco

Baykeeper v. Cal. State Lands Comm'n, that extraction of sand from public trust waters was not a

per se improper use of the trust resources, but that the private use could not interfere with

navigation or fishing. It further noted that the legislature would need to make an affirmative

finding that a given resource extraction was consistent with the Public Trust. San Francisco

Baykeeper v. Cal. State Lands Comm'n & Does 1-25, 2016 Cal. Super. LEXIS 921, *56-60.

The Supreme Court of Pennsylvania summarized the economic uses of trust properties thusly:

“Of course, the trust's express directions to conserve and maintain public natural
resources do not require a freeze of the existing public natural resource stock; rather, as
with the rights affirmed by the first clause of Section 27, the duties to conserve and
maintain are tempered by legitimate development tending to improve upon the lot of
Pennsylvania's citizenry, with the evident goal of promoting sustainable development.”
Robinson Twp. v. Commonwealth, 623 Pa. 564, 658, 83 A.3d 901, 958 (2013)

What we see here is that public trust resources may be exploited. But, the caveat to their use is

the long-term sustainability. To be sure, every fish that is removed from a river decreases the fish

stock. The use of rivers for navigation introduces a disturbance regime. However, due to the

regenerative nature of the trust properties, some uses can be borne such that future generations

will also be able to make use of them and enjoy the economic benefits they provide. Where these

resources are used too quickly irreparable harm may be caused that can prevent future use of the

resource and lead to long term economic ruin for the community.
 Another important aspect of the trust is the nature of the property title, namely Jus

Publicum versus Jus Privatum or “public versus private rights.” Certain interpretations and court

opinions regarding the Public Trust Doctrine emphasize the distinction between these two types

of title. The California Supreme Court described it thusly:

“Stated briefly, I understand the doctrine of that case to be that the several states hold and
own the lands covered by navigable waters within their respective boundaries in their
sovereign capacity, and primarily for the purpose of preserving and improving the public
rights of navigation and fishery. They have in them a double right, a jus publicum and
a jus privatum. The former pertains to their political power -- their sovereign dominion,
and cannot be irrevocably alienated or materially impaired. The latter is proprietary and
the subject of private ownership, but it is alienable only in strict subordination to the
former.”
Oakland v. Oakland Water Front Co., 118 Cal. 160, 183, 50 P. 277, 285 (1897).

It is the jus publicum that imposes the duty upon the state to maintain the trust. This means that

when a state or member of the public invokes the doctrine, their claim doesn’t necessarily go to

challenge the private title of the res, but that the claim goes to the public title to the res.

Relatedly, the Supreme Court of Massachusetts, when analyzing the Public Trust Doctrine,

declared,:

“We think it is a settled principle, growing out of the nature of well ordered civil society,
that every holder of property, however absolute and unqualified may be his title, holds it
under the implied liability that his use of it may be so regulated, that it shall not be
injurious to the equal enjoyment of others having an equal right to the enjoyment of their
property, nor injurious to the rights of the community. All property in this
commonwealth, as well that in the interior as that bordering on tide waters, is derived
directly or indirectly from the government, and held subject to those general regulations,
which are necessary to the common good and general welfare. Rights of property, like all
other social and conventional rights, are subject to such reasonable limitations in their
enjoyment, as shall prevent them from being injurious, and to such reasonable restraints
and regulations established by law, as the legislature, under the governing and controlling
power vested in them by the constitution, may think necessary and expedient.”
Commonwealth v. Alger, 61 Mass. 53, 84-85 (1851).

We see in this passage, too, the distinction between the private holding of property and the public

interest in the regulation of property. The opinion makes it clear that the public interest is not
limited to just traditional public trust property but applies to “All property in this

commonwealth”. Further this passage makes it clear that all use of property is subject to “such

reasonable limitations”.

Ongoing Expansion of the Doctrine.

State common law aside, there is considerable scholarship and interest in the common

law from environmentalists. Both seek to expand the scope of the Public Trust Doctrine. The

interest in the Public Trust Doctrine today largely stems from the work of Joseph Sax’s work in

the 1960’s and 70’s.15 Environmental advocates had considerable successes in the 1970s and

80’s. Sax’s work was cited by many courts.16 Sax approached his analysis of the Doctrine from a

variety of lenses. He sought to expand the Doctrine by interpreting the Doctrine expansively, so

that rights to abutting lands were subsumed. He also looked to expand the Doctrine with an eye

to the evolving understanding of science to point to the interconnected nature of various

properties.

But, most relevant to this paper, Sax sought to expand the Doctrine with analogous

thinking – rooting down to the essential logic and seeking to apply that same logic to other areas

of law. In his summary he declares,

“… it is clear that the judicial techniques developed in public trust cases need not be
limited either to these few conventional interests or to questions of disposition of public
properties. Public trust problems are found whenever governmental regulation comes into
question, and they occur in a wide range of situations in which diffuse public interests
need protection against tightly organized groups with clear and immediate goals.”17

15
Alexandra B Klass, Modern Public Trust Principles: Recognizing Rights and Integrating Standards Notre Dame Law
Review (2006), https://pdfs.semanticscholar.org/95c1/6a384bf83f69713f5398fe3c3139e02bd553.pdf?
_ga=2.58509545.2142036224.1557880667-65116977.1557880667c (last visited Jul 21, 2019). At pg9
16
Id at 10.
17
Joseph L Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention (1969),
https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2359&context=facpubs (last visited Jul 21, 2019)
And soon thereafter he notes,

“…it must be emphasized that the discussion contained in this Article applies with equal
force to controversies over subjects other than natural resources. … resource
controversies are often particularly dramatic examples of diffuse public interests and
contain all their problems of equality in the political and administrative process, those
problems frequently arise in issues affecting the poor and consumer groups. Only time
will reveal the appropriate limits of the Public Trust Doctrine as a useful judicial
instrument.”18

What is clear from these concluding statements is that he believed that the logic of the Public

Trust Doctrine applies broadly. He did not believe that the Doctrine was limited to the

disposition of public property nor environmental issues. Rather for Sax, the underlying element

was the protection of the diffuse public interests from “tightly organized groups”.

Today, environmental advocates continue to push the bounds of the Public Trust

Doctrine. The Children’s Trust case, Juliana v. The United States, is an ongoing case filed at the

federal district court in Eugene, Oregon. The Children’s trust plaintiffs allege, in part, that the

government has a trust duty to protect the atmosphere as a public trust resource and that all of the

public trust resources stem from an “overarching public trust resource” the “country’s life

sustaining climate system.”19 They broaden the scope of the Doctrine using analogy stating,

“These rights protect the rights of present and future generations to those essential natural

resources that are of public concern to the citizens of our nation.”20 They assert a foundational

premise and then assert that this premise includes the traditional Public Trust resources as well as

other resources like the atmosphere. This continues the long pattern since Illinois Central

at pg 87.
18
Id at 88.
19
Julia Olson et al., FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF JULIANA V. UNITED
STATES Youth Amended Complaint Against US (2015),
https://static1.squarespace.com/static/571d109b04426270152febe0/t/57a35ac5ebbd1ac03847eece/1470323398
409/YouthAmendedComplaintAgainstUS.pdf (last visited Jul 21, 2019). At pg 92
20
Id. at 97
Railroad Co. v. Illinois of using analogical thinking to expand the Doctrine. (See discussion

above.)

The Juliana plaintiffs’ complaint also raises another interesting argument for the

Doctrine. In order to reinforce the solidity of the trust duty of the Executive and Legislative

branches, the plaintiffs point to numerous statutes where statutory language declares a federal

trust duty regarding various public resources.21 This argument is currently untested. Should it

prevail, it may be a potent tool should legislatures use it to create more trust duties.

From these cases and scholarship, we can compile a list of attributes into a single claim:

(a) The Doctrine is a flexible guiding principle that allows private citizens or the

sovereign to check the use of property over which the whole public is interested,

principally the appropriation of the trust by “tightly organized groups”.;

(b) Public interest might be established through imperilment of economic livelihood, the

use of the trust as a channel of commerce, public interest in a particular use of the

property, public necessity, the legislature declaring the existence of a trust, and

government material support or the organization acting as a quasi-public institution;

(c) Appropriate uses might include adequate public benefit, maintaining an established

economic livelihood of the community, sustainable use of the trust, requiring the use

have an adequately public benefit; and

(d) The Doctrine is susceptible to expansion using analogy or through the judicial

techniques, procedures or substantial protections of the Doctrine being applied to other

contexts.
21
Id. at 86, 87, and 88.
The Analogy to The Means of Production

As discussed in the introduction to this paper, our times are seeing an intensification of

market externalities upon communities due to economic races to the bottom, austerity policies,

capital flight, and corporate cannibalism. These externalities can devastate communities who are

powerless economically or politically to protect against in these harms. Through the use of

analogy environmental advocates have had appreciable success reining in the abuse of public

trust resources. It is the goal of this section to flesh out the analogy between the Public Trust

Doctrine and the mean of production with the hope that vulnerable communities might be able to

protect themselves.

Before we can draw an analogy between the means of production, capital and public trust

resources we need to be clear about what we are talking about. Capital doesn’t refer to all kinds

of property. It refers to value embodied in private property or the means of production in Marxist

parlance. The distinction that Marxists make between property generally and private property

does not relate to the physical properties of the property per se. Instead, the means of production,

capital, private property refer to property and how it interrelates with people and other property.

This places us in both good and bad analytical spaces. On the one hand, the law is

relatively good about categorizing things. On the other hand, Marxist categories don’t square

neatly with legal categorization. Marxist analysis is relational. It seeks to describe the world not

with recourse to physical descriptors, but by how things relate to one another. For example, most

people would define fruit as the fleshy produce of plants that contains seeds. By contrast, a

Marxist would be more inclined to describe fruit as it relates to the interplay of plants and

animals to propagate the dispersal of seeds.

 With this in mind, there are three Marxist concepts relevant to our investigation: (1)

capital; (2) the means of production; and (3) private property. I will briefly discuss each in turn.

Capital is an abstraction. It refers to the abstract notion of “value” contained in goods,

money, labor, and private property. Goods have production costs that are known to the capitalist

– labor, material inputs, distribution etc,- and a market value that can be realized when sold.

Money has value insofar as it can be exchanged for labor, material inputs, and private property.

Private property has value because it can be bought and sold, and used in the productive process

to create more goods. Labor has value because it can be mixed with material inputs and the

means of production to create goods of greater value. What is readily apparent is that this system

of logic is rather circular. Each thing has value by reference to another thing or things. It is this

referential circularity that gives capital its life. Throughout the production process, value is not

held in a static place. Value circulates and flows between goods, the means of production and

people, in a constant growing cycle of transmogrification as value is added at each step. It is this

concept of capital that defines the social relationship between communities, the means of

production, and private property.

The means of production is a more concrete concept. It refers to the objects that humans

use to turn material inputs into goods. This includes machines, factories, tools, and the land. In a

local community this might mean a steel mill that is closing because the owner has been

investing their capital in modernizing another plant and no longer needs that mill. In another

community it might refer to the facilities in which aircraft are fabricated that is being shut down

because the owner seeks better taxes in another state. The means of production, as a concept,

doesn’t refer to economic abstractions or legal relations.

 Private property is the legal relation that gives capitalists (the owners of capital) social

power. Private property is the legal ownership of the means of production and capital by private

entities (non-state/non-municipal/non-communal, or individuals, families or corporations).

Private property allows the capitalists to hire laborers from the community for a wage, mix that

labor with their material inputs and the means of production to create goods, and thereby

appropriate (claim legal ownership over) the goods produced by the community.

Undoubtedly, the capitalists do contribute some labor of their own, but, with some

exceptions, it is largely managerial. However, the overwhelming majority of labor is done by

members of the community who are local to the means of production. And, it is the labor of

workers who made the factories, the machines, the tools, and the material inputs that capitalists

marshal to produce goods. Capital in this sense, is a Russian nesting doll of worker labor until

you eventually reach the animal, plant, fungal, and bacterial communities, and firmament and

oceans from which humans take raw resources.

I know turn to the analogy between the means of production and public trust resource. As

discussed above, the principle element of the Doctrine is the public interest in the trust and a

corollary allegation that the trust is being used in a manner contrary to that public interest. This

means that the thrust of the analogy should be establishing a public interest in the use of the

means of production. As noted above, case law provides numerous avenues for asserting a public

interest.

The first is the economic livelihood of local workers who rely upon the trust. Workers

depend on access to the means of production for work and commerce. In many communities, a

single mill can be the pillar of the community. Loss of that mill can devastate the livelihoods of
thousands of workers in a small community and mean a loss of commercial and economic

stability for decades. In this sense the local community has a strong interest in the operation of

the means of production.

Second, a trust resource may be important to a community because of its use as a channel

of commerce. This analogy draws upon the reasoning of the Supreme Court in Illinois Central

Railroad Co. v. Illinois. In that case the court said that distinguishing between tidal and river

waters were arbitrary as both carried commerce. Here, the argument goes a step further to say

that the commonality isn’t the water, but the public interest in the channel of commerce.

Channels of commerce don’t encompass all types of the means of production. It would

only apply to a limited subset. We might look to roads – private or public-, distribution centers,

airspace, and communication services such as the internet. The public has a keen interest in the

use of the internet as a channel of commerce. The loss of the internet for a community would be

devastating.22 It many cases it would mean an Iron Curtain separating them from global and even

regional trade as well as limiting their fundamental democratic rights to communicate or

participate in politics.23 Channels of commerce are fundamental means of production because the

movement of goods and ideas are valuable economic services in themselves.24

22
Fareeha Ali, A decade in review: Ecommerce sales vs. retail sales for 2007-2018 Digital Commerce 360 (2019),
https://www.digitalcommerce360.com/article/e-commerce-sales-retail-sales-ten-year-review/ (last visited Jul 21,
2019).
23
Christopher Williams, How Egypt shut down the internet The Telegraph (2011),
https://www.telegraph.co.uk/news/worldnews/africaandindianocean/egypt/8288163/How-Egypt-shut-down-the-
internet.html (last visited Jul 21, 2019).
24
Ernesto Falcon, The Big Lie ISPs Are Spreading in State Legislatures Is That They Don't Make Enough Money
Electronic Frontier Foundation (2019), https://www.eff.org/deeplinks/2018/05/big-lie-isps-are-spreading-state-
legislatures-they-dont-make-enough-money (last visited Jul 21, 2019).

Greg Sterling, Google Q1 revenues $36.3 billion but miss Wall Street expectations Search Engine Land (2019),
https://searchengineland.com/google-q1-revenues-36-3-billion-but-miss-wall-street-expectations-316132 (last
visited Jul 21, 2019).

Amy Gesenhues, Facebook ad revenue tops $16.6 billion, driven by Instagram, Stories MarTech Today (2019),
 Third is public necessity. In the case law, this public interest arises from the necessity to

preserve the public use of water ways. It is not clear whether wisdom dictates that analogous

necessity should also relate to the use of channels of commerce free from interruption or private

encroachment, or whether more consequential and compelling necessities can also give rise to a

sufficient public interest. More compelling necessities might include the need to curtail industry

to reduce the ecological impact of the economy to mitigate global extinction of species or the

retooling of the means of production to produce goods necessary for the community such as

munitions in war time or cement to build a seawall to prevent a neighborhood from getting

drowned by rising seas, or the production of foodstuffs in times of food scarcity in the

community. Alternatively, the community necessity might be connected to other public interests

discussed in this section

Fourth, the trust could be established by legislative declaration. Should the court in the

ongoing Juliana case support the plaintiffs’ argument this could open the door for the

government to establish more trusts by fiat. For a community to establish a trust in the means of

production the would only need a governing body to pass a law establishing the relevant trust.

Fifth, government giving material support and quasi-public institutions. It is unclear how

strong this type of interest is. On the one hand if material support entices a firm to do business in

a state this suggests that the state sees the result as a net benefit to the people of the state – likely

through jobs, economic development, or increases in tax revenues. Phrased alternatively,

material support by government might be used to demonstrate the degree of public interest in the

trust. This seems to be a weak argument though, as discussed below. A better argument might be

for quasi-public institutions. If a private organization presents itself as quasi-public and

https://martechtoday.com/despite-ongoing-criticism-facebook-generates-16-6-billion-in-ad-revenue-during-q4-up-
30-yoy-230261 (last visited Jul 21, 2019).
enmeshes itself with local public resources this may cause communities to come to rely upon that

institution in the same manner as a public trust resource or public service. But it is not clear that

one coming to rely upon a service is the same as a public necessity or a strong public interest.

Once a public interest over the means of production is established, the next step of the

analysis is to determine appropriate and inappropriate uses. Borrowing from the Public Trust

Doctrine, these uses might include adequate public benefit, maintaining an established economic

livelihood of the community, or sustainable use of the trust. Let’s consider what these might look

like in practice. A private use of a public trust resource must have a public benefit. The case law

suggests that this public benefit must be more than a handful of jobs or tax revenues. If a

community asserts a public trust right to the means of production and demands an adequate

public benefit, it might mean hiring more staff, profit sharing with the community, higher wages,

a portion of the products being offered at or below cost, or changing the goods produced to be

more in line with public needs. In other words, if a private individual is going to profit from the

labor of the local community, the community may want something more in return than

stagnating wages.

If a community asserts the trust be used to maintain an established economic livelihood,

this might mean a demand that a firm not be allowed to outsource. Alternatively, should a firm

choose to relocate, it might mean that the community asserts the right to continue the economic

use of the means of production without the private management. More severely, a community

might ask that the private trustee manage their business responsibly and not abandon it – that is,

if the firm sought to relocate they might curtail investment in the months or years leading up and

the community might insist that they maintain the trust property diligently and continue to invest

in it so that it doesn’t fall into disrepair or obsolescence.

 Finally, a community might assert that the means of production be used sustainably. This

has multiple possible interpretations. On the one hand it could refer to the wear and tear on the

means of production themselves, such as responsible use of croplands. This interpretation is most

in keeping with the Public Trust Doctrine. On the other hand the community could ask that

development of the means of production in the community be managed in a way to insulate the

community against the vagaries of boom and bust economic cycles or that development of the

means of production that are intended to be fleeting – as a in a temporary boon for the

community but not sustainable – be avoided.

Problems with the Argument

Is it Even an Analogy?

An analytical criticism of the analogy between the traditional public trust lands and the

means of production is that the analogy is an indirect analogy. In other words, the argument in

this paper looks to principles behind the Doctrine and then compares the means of production to

those principles rather than analogizing directly with the trust resources themselves. Therefore,

one should conclude that the means of production are not analogous to the traditional trust res.

While this is certainly true, all expansive analogy works in this manner. For example,

when the Supreme Court of California broadened the Doctrine to include the public interest in

ecological conservation, technically this expansion in public interest was not identical to the

previously articulated public interest. Therefore, the framework for applying the Doctrine is open

to indirect analogy. The question at hand, then, is not whether the argument must rely on

identical use of language, but whether the analogy is in line or an appropriate leap from the given

case law.
 This use of indirect analogy is essential to the Doctrine. A regular theme of the Doctrine

is that it must be flexible and responsive to changing science and public need. The size of large

economic interests and their ability to determine legislation leaves many communities without

legal tools to protect themselves. This is a threat to the longevity of communities and of clear

public interest. Therefore, it is appropriate that the Doctrine might be used in a flexible manner

to respond to these harms.

We’d be Creating New Trusts out of Nowhere!

If we accept the argument, then courts would be empowered to create new trusts and to

place encumbrances on private property without any means of anticipation or notice. This is true.

A court declaring a new type of property to also be covered by the public trust would create a

new encumbrance and new rights and duties. As the caselaw demonstrates, this has never been a

bar to the expansion of the Doctrine. Every expansion of the Doctrine has inherently created

encumbrances on property that could not be anticipated. That is the very core of the Illinois

Central Railroad Co. v. Illinois decision. In that case the Supreme Court created a new category

of trust property. Prior to that decision the public trust did not apply to the Chicago river. After

the decision, submerged lands now had an inalienable claim by the state. This is a clear

consideration for any court, but it is not a bar for the court to make such a finding.

Doesn’t the Doctrine only Apply to States’ Property?

Traditionally, the Public Trust Doctrine applies to intertidal waters and navigable waters.

In both cases, those are lands that are granted to states at statehood as part of the equal footing

Doctrine. See PPL Montana, LLC v. Montana, 565 U.S. 576 (2012). While some states have

expanded the Doctrine to apply to adjacent lands (dry sands adjacent to the coast for example) I
am not aware of any case law that applies the Doctrine expansively to lands that were never

owned by the state or not nearly adjacent to state lands.

This consideration might be fatal to the proposal. It is possible a court might overlook

this barrier because of the larger pressing public necessity. Alternatively, one might apply it

where the government had previously owned the land. This would apply either to the federal

government or to the original thirteen states who received title to their lands from the Crown.

Isn’t this Just an Elaborate Loophole to Avoid Compensation for Takings?

In some states, an aspect of the Doctrine is that property that is managed by the state

pursuant to its inalienable title is per se not a taking and therefore does not require

compensation.25 This critique is most potent if public interest is established via material support

or the legislative declaration of a trust. In the first scenario, a state could, hypothetically, provide

material support less than the value of the property in question. Then the state could use that

support as pretext for the asset to come under the state trust. The state would be placing an

inalienable encumbrance on the property. Without the trust, state management or regulation of

property may be a taking. Courts would need to consider this possibility for abuse. In the second

scenario, the declaration of a trust, the state would be encumbering a property with a trust claim

without compensation or material support. For example, this type of declaratory trust on non-

state property would very likely be considered a taking by a court because the possibility of a

declaratory trust is likely prone to abuse. It would simply be a taking by another name.

But not all public trust claims against private holders result in confiscation of the res.

This is a fact dependent determination. Enforcement of the trust may not be a taking, like when
25
David Slade, R Kerry Kehoe & Jane Stahl, Putting The Public Trust Doctrine to Work (1997),
https://shoreline.noaa.gov/docs/8d5885.pdf (last visited Jul 21, 2019). At pg 26.
water diversions are curtailed. Alternatively, a trust may be enforced like a regulation

-mandating private use of the res be in line with the public interest. Depending on the degree or

type of regulation and the type of property in question this may be a regulatory taking. The

imposition of easements for public use or access to the means of production, might be a physical

taking. However, there are cases (like the New Jersey case above) wherein the courts imposed a

public right of access to the trust property. If an inalienable encumbrance attaches to property

and thereby becomes state property, this would likely be a taking unless the court were to

analogize it to the Chicago River in the Illinois Central Railroad Co. case. It is not clear where

courts would draw lines between the Doctrine and takings. This doesn’t mean that the

application of the Doctrine to the means of production is invalid, but that early adoption would

be fraught with jurisprudential disagreement as the Doctrine quickly evolved.

Another way to distinguish between the Public Trust Doctrine and a taking is to

understand the Doctrine as a matter of the state’s police powers. The Supreme Court of

Massachusetts made the following distinction,

“This is very different from the right of eminent domain, the right of a government to
take and appropriate private property to public use, whenever the public exigency
requires it; which can be done only on condition of providing a reasonable compensation
therefor. The power we allude to is rather the police power, the power vested in the
legislature by the constitution, to make, ordain and establish all manner of wholesome
and reasonable laws, statutes and ordinances, either with penalties or without, not
repugnant to the constitution, as they shall judge to be for the good and welfare of the
commonwealth, and of the subjects of the same.” Commonwealth v. Alger, 61 Mass. 53,
85 (1851).

Under this distinction, the court affirmed the legislature’s law to secure public access to the

harbor pursuant to its trust duties. What this passage shows is that the concepts of takings, and

appropriate legislation to protect public interests in the trust can be separated. Enforcement of the

public trust to promote public access can be a valid use of the legislatures police powers.
This is a Pandora’s Box

Stretching the analogy of the public trust to apply to the means of production may be

opening a Pandora’s Box. If a court were to accept going this far, the limits of the Doctrine

would originally be unclear. The most extreme application by analogy would be that all property

becomes subject to the public trust. All property would be managed or regulated according to the

public interest regarding sustainable use, economic livelihood, and broader public interest. If one

individual’s use offended another, they could sue and assert that the first individual’s use of their

property was inconsistent with the public interest. This could, if allowed to go unchecked, lead to

petty and highly normative arguments in courtrooms about how even domestic uses of property

accord or discord with the public interest. Individuals would be empowered to leverage contrived

public interests and norms against their neighbors.

While one could imagine an absurd outcome where neighbors can control the color of

each other’s houses (which already exists in some places with neighborhood associations) there

are some jurisprudential backstops that could be introduced to prevent this petty outcome. The

Doctrine could be explicitly limited to natural resources, and the means of production. Courts

could place limitations on the types of public interest focusing on broad economic interests, the

means of production, and ecological interests. Other limitations on the public interest might

include de minimis lower bounds. Alternatively, courts could borrow procedural and substantive

jurisprudence from other common law claims to rein in extremes. For example, borrowing from

nuisance, and public nuisance claims to delineate a de minimis lower bound. Clearly other

common law doctrines haven’t resulted in these types of absurd results despite their potentially

deeply interpersonal nature.

 Furthermore, courts could look to jurisprudence that is marshalled to rein in the excesses

of government regulation and statutes as these also pertain to limiting behavior in the public

interest, namely constitutional law. The common law has the virtue of refining its bounds by

practice and pragmatism rather than being condemned to the spurious “logical” conclusions of

doctrines. Reflexively, it should be acknowledged that those same limitations could be explicitly

spelled out for the current Doctrine -as they are in some states- to prevent the Doctrine applying

to the means of production.

Conclusion

As was shown, the Public Trust Doctrine is a flexible legal doctrine that has a history of

checking errant sovereigns and empowering the sovereign to check the use of the public res by

private interests. Increasingly, our economy creates problems that undermine the economic

viability and stability of communities creating considerable harm. In the past many communities

were able to apply other common law causes of action in innovative ways to protect themselves.

The public trust, as reinterpreted in this paper, offers a new tool to empower and protect

communities who may not otherwise have protection against the vagaries of markets or the

inaction of their legislature.