JEEL Vol 10 Iss 1

George Washington Journal of
Energy & Environmental Law
Articles
Brian Gumz, A
dministrative Nonacquiescence and EPA
James L. Huffman, The Public Trust Doctrine: A Brief (and True) History
Randall S. Abate, Atmospheric Trust Litigation: Foundation for a
Constitutional Right to a Stable Climate System?
Erin Ryan, F
rom Mono Lake to the Atmospheric Trust: Navigating the
Public and Private Interests in Public Trust Resource Commons
Summer 2019
Volume 10 No. 1
The George Washington
Journal of Energy and Environmental Law
BOARD OF EDITORS
2018–2019
Kelly N. Garson
Editor-in-Chief
Boris Shkuta
Senior Managing Editor
Nicole Bayne Natasha Rao

Senior Production Editor Jackson Hendrix
Senior Notes Editor
Senior Articles Editor
Eashaa D. Parekh
Kaitlin Naughton William W. Burchfield
Michelle L. Castaline
Managing Editors W. Paul Clatterbuck
Raymond J. Richards
Mark Demarest
Sacred B. Huff Articles Editors
Notes Editors
Senior Projects Editor
ASSOCIATES
Kristine Abrenica Jacob L. Huston Anthony M. Patrone
Joshua Berg Joshua Jamieson Andrew G. Romano
James Blough Maria Kim Christian Rosnell
Elizabeth M. Brown Charles J. Koronkowski Matt Sanford
Sean Lee Leon Coffin Miranda Millerick Adam Schiappa
Aja Espinosa Jiyoon Moon Rachel S. Sullivan
Brian J. Fang Emma Murchison Frederick Wolf
Christian R. Flinn Vivas Mary C. O’Brien Jiannan Zhu
Yangyang Geng Joshua M. Obszanski
MEMBERS
Linden J. Abston Joseph P. DiBella Amanda McAree
Neal M. Anderson Reed A. Ehrhardt L. Porter McHenry III
James J. Bartholomew Noa Ervin Sean M. Ossi
David Z. Beiss Andrea Teresa Fernandez-Bravo Jarryd C. Page
W. Lydell Benson, Jr. Magdalena Filipiuk Nicholas Pearson
Steven Boughton Anne F. Garvin Mia Polo
Bianca C. Burns Blake E. Grow Allan H. Sakaue
Zubin Chadha Carlee Haines Meg Schumm
Olivia S. Chap Emalie G. Herberger Meilen Teklemichael
Hannah C. Cole Evan D. Hunt Emma Timan
Amara M. Conteh Hannah E. Levine William A. Weitzel
Margaret G. Czepiel Katherine M. Lynn Rongwei Xie
Matthew DeGioia Edward E.A. Mahabir Lijuan Zhang
Dean Lee Paddock, Faculty Advisor

Achinthi Vithanage, Environmental Law Fellow
The George Washington
Journal of Energy and Environmental Law
BOARD OF EDITORS
2019–2020
Neal M. Anderson
Editor-in-Chief
Matthew DeGioia
Senior Managing Editor
Magdalena Filipiuk Margaret G. Czepiel

Senior Production Editor Hannah C. Cole
Senior Notes Editor
Senior Articles Editor
Zubin Chadha
Emalie G. Herberger Evan D. Hunt
Joseph P. DiBella
Managing Editors Edward E.A. Mahabir
Noa Ervin
Jarryd C. Page
Anne F. Garvin Articles Editors
Notes Editors
Senior Projects Editor
ASSOCIATES
Linden J. Abston Andrea Teresa Fernandez-Bravo Mia Polo
James J. Bartholomew Blake E. Grow Allan H. Sakaue
David Z. Beiss Carlee Haines Meg Schumm
W. Lydell Benson, Jr. Hannah E. Levine Meilen Teklemichael
Steven G. Boughton Katherine M. Lynn Emma Timan
Bianca C. Burns Amanda McAree William A. Weitzel
Olivia S. Chap L. Porter McHenry III Rongwei Xie
Amara M. Conteh Sean M. Ossi Lijuan Zhang
Reed A. Ehrhardt Nicholas Pearson
MEMBERS
Tess Andrew Sarah A. Husk Devin Patrick O’Connell
Molly E. Behan Lauren E. Johnstone Sean P. O’Neill
Alexander Beyrent Molly C. Jones Benjamin D. Passey
Michael F. Billotti Jordyn Kass Rebecca A. Ringler
Audrey Carroll Marley R. Kimelman Wilma P. Rodriguez
Matthew Clinton Helen Mitsuko Marsh Katherine E. Sargent
Andrew F. Costello Laura Marie Martin Timothy P. Scanlan, Jr.
Emily N. Donahoe Ainsley K. McNemey Danni L. Shanel
Violet N.D. Edelman George A. Menold Austin Ray Kabbaz Szabo
James C. Franco Lesley Morton Dina N. Truncali
Jeremy A. Freiman Saxon F. Nelson Annemarie E. Wamsted
Joseph A. Grossman Alan Neuhauser Bernard Zamaninia
Guoyao Han Ellis Trueman Nottingham
Hayley F. Heath Matthew Obeid
Dean Lin Harmon-Walker, Faculty Advisor

Achinthi Vithanage, Environmental Law Fellow
George Washington
Journal of Energy & Environmental Law
SUMMER 2019 CONTENTS VOL. 10 NO. 1
Articles
Brian Gumz, A
dministrative Nonacquiescence and EPA . . . . . . . . . . . . . . . . . . . . . . . . . 1
James L. Huffman, The Public Trust Doctrine: A Brief (and True) History. . . . . . . . . . . 15
Randall S. Abate, Atmospheric Trust Litigation: Foundation for a Constitutional
Right to a Stable Climate System? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Erin Ryan, From Mono Lake to the Atmospheric Trust: Navigating the Public and
Private Interests in Public Trust Resource Commons. . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Cover photo courtesy of The George Washington University Law School.

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A R T I C L E S
Administrative
Nonacquiescence and EPA
Brian Gumz*
In 2016, the U.S. Environmental Protection Agency issued a final rule under the Clean Air Act (CAA) authorizing
the Agency’s regional offices to adopt a controversial practice known as administrative nonacquiescence. An agency engages
in administrative nonacquiescence when it refuses to follow decisions of the federal circuit courts. While administrative
nonacquiescence has a long history, recent scholarship regarding the topic is conspicuously lacking. Nonacquiescence
scholarship peaked more than two decades ago in response to a notorious and now defunct nonacquiescence policy adopted
by the Social Security Administration. Since that time, however, scholars have generally abandoned the topic.
This Article fills a gap in the scholarly landscape by discussing EPA’s general authority to nonacquiesce under the
various environmental statutes administered by the Agency. Likewise, this Article analyzes the Agency’s recent rulemaking
authorizing nonacquiescence under the CAA as well as another recent instance of Agency nonacquiescence under the Clean
Water Act. Finally, this Article argues that the Agency should accommodate nonacquiescence under the many environmental
statutes administered by the Agency and proposes the inclusion of several features in future Agency nonacquiescence policies
to ensure fairness and consistency for regulated industry.
Table of Contents
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I. Overview of Agency Nonacquiescence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Intercircuit Nonacquiescence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. Intracircuit Nonacquiescence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
C. Venue-Choice Nonacquiescence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
II. Nonacquiescence and EPA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. General Principles of EPA Nonacquiescence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
B. Recent EPA Nonacquiescence Actions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1. NEDACAP and Amendments to CAA Regional Consistency Regulations. . . . . . . . . . . . . . . . . . . . . . . . . 8
2. Nonacquiescence Following Iowa League of Cities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 0
III. Proposed EPA Intercircuit Nonacquiescence Policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1
A. Best Among Rivals: Intercircuit Nonacquiescence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1
B. Proposed Features of EPA Nonacquiescence Policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2
1. Presumption of Intercircuit Nonacquiescence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2
2. Published Headquarters Concurrences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2
3. Mechanisms for Deviating From Intercircuit Nonacquiescence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 4
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 4
* J.D., George Washington University Law School, 2018. Special thanks to Prof. Emily Hammond for her guidance in writing this Article and
mentorship throughout my time in law school. Thank you also to the environmental and energy law faculty at The George Washington University
Law School for selecting this Article as the recipient of the 2018 Jamie Grodsky Prize for Environmental Law Scholarship and to Dr. Gerold
Grodsky for his continuing support of environmental law research through the prize. Finally, thank you to the staff of the George Washington
Journal of Energy and Environmental Law for their edits and feedback during the publication process.
Summer 2019 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW 1

2 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 1
Introduction struck down by the U.S. Court of Appeals for the District
of Columbia (D.C.) Circuit, which held that the Agency’s
Few federal agencies have a knack for courting controversy regulations did not allow EPA to nonacquiesce from cer-
like the U.S. Environmental Protection Agency (EPA). In the tain circuit court decisions under the CAA.10 In response to
past few years alone, EPA has been at the helm of litigation the D.C. Circuit’s opinion, the Agency issued a final rule in
over the Barack Obama Administration’s Clean Power Plan, 2016 amending its own regulations to “fully accommodate
subjected to calls for elimination by political candidates, and intercircuit nonacquiescence,” noting that “[the CAA] does
threatened with significant budget reductions by the Donald not specifically address how the agency should respond to
Trump Administration.1 However, far outside of the major adverse court decisions” and that such determinations should
headlines, the Agency has also stirred controversy through be left to the Agency.11 In June 2018, a D.C. Circuit panel
a little-known policy termed “administrative nonacquies- upheld EPA’s amended regulations and endorsed the Agen-
cence.” While the Agency’s recent nonacquiescence actions cy’s authority to nonacquiesce under the CAA.12
may have gone largely unnoticed, they will likely have last- Around the same time, EPA was also litigating a nonac-
ing implications for both EPA’s statutory authority and the quiescence case involving the Clean Water Act (CWA).13 In
development of environmental law. 2013, the U.S. Court of Appeals for the Eighth Circuit held
Administrative nonacquiescence is the refusal of an admin- against the Agency in a decision involving permitting rules
istrative agency to apply the precedent of a circuit court of for wastewater treatment plants under the CWA.14 EPA, mir-
appeals to its own proceedings.2 The process of nonacquies- roring its actions a year earlier under the CAA, refused to
cence begins when the agency loses an appeal in circuit court follow the Eighth Circuit’s decision outside of the Eighth
and the court’s decision sets precedent that is contrary to the Circuit, leading to another challenge in the D.C. Circuit.15
agency’s nationally applicable policy.3 Most litigants who lose In February 2017, a D.C. Circuit panel dismissed the com-
before a circuit court have three primary options: they can plaint on jurisdictional grounds, leaving the question of
follow the court’s decision, petition for review through the whether the Agency has authority to nonacquiesce under the
en banc process, or petition for review at the U.S. Supreme CWA unanswered.16
Court.4 However, federal agencies have a fourth option: they Despite EPA’s emphatic embrace of its nonacquiescence
may choose to ignore the court’s decision and keep adminis- authority, there is no legal scholarship focusing entirely on
tering their own policy.5 In other words, federal agencies may EPA’s ability to nonacquiesce.17 Moreover, there is very little
nonacquiesce to the circuit court’s decision. recent legal scholarship on the issue of administrative non-
Beginning in 1970—the year that President Richard acquiescence.18 Nonacquiescence legal scholarship reached a
Nixon established EPA—to 2012, EPA did not openly engage high-water mark in the late 1980s and early 1990s,19 buoyed,
in nonacquiescence.6 As EPA’s General Counsel explained in
1987, “EPA’s general policy is to eschew [nonacquiescence]” 10. NEDACAP I, 752 F.3d at 1009–10.
and “the agency has avoided [nonacquiescence] as a tool of 11. Amendments to Regional Consistency Regulations, 81 Fed. Reg. 51102,
policy.”7 In 2012, however, the Agency’s position on nonac- 51106 (Aug. 3, 2016) (to be codified at 40 C.F.R. pt. 56).
12. See Nat’l Envtl. Dev. Ass’n’s Clean Air Project v. EPA (“NEDACAP II”), No.
quiescence changed dramatically. 16-1344 at 4-5 (D.C. Cir. June 8, 2018).
First, the Agency announced that it would not follow a 13. 33 U.S.C. §§ 1251–1388, ELR Stat. FWPCA §§ 101–607 (2012). For a full
U.S. Court of Appeals for the Sixth Circuit decision regard- discussion of the Agency’s actions and resulting litigation, see infra Section
II.B.2.
ing the Clean Air Act (CAA)8 in any jurisdiction outside of 14. See Iowa League of Cities v. EPA, 711 F.3d 844, 43 ELR 20069 (8th Cir.
the Sixth Circuit.9 In 2014, the Agency’s announcement was 2013).
15. See Ctr. for Regulatory Reasonableness v. EPA, 849 F.3d 453, 454, 47 ELR
20031 (D.C. Cir. 2017).
1. See Jonathan H. Alder, The En Banc D.C. Circuit Meets the Clean Power 16. Id.
Plan, Wash. Post (Sept. 28, 2016), https://www.washingtonpost.com/news/ 17. One article discusses a specific instance of EPA nonacquiescence in the mid
volokh-conspiracy/wp/2016/09/28/the-en-banc-d-c-circuit-meets-the-clean- 2000s, but does not analyze the Agency’s overall authority to nonacquiesce.
power-plan/?utm_term=.82cf3c8a6127; Oliver Milman, Republican Candi- See Kevin Haskins, A “Delicate Balance”: How Agency Nonacquiescence and the
dates’ Calls to Scrap EPA Met With Skepticism by Experts, Guardian (Feb. 26, EPA’s Water Transfer Rule Dilute the Clean Water Act After Catskill Mountains
2016), https://www.theguardian.com/environment/2016/feb/26/republican- Chapter of Trout Unlimited, Inc. v. City of New York, 60 Me. L. Rev. 173
candidates-donald-trump-eliminate-epa-law-experts. See, e.g., Office of (2008).
Mgmt. & Budget, Exec. Office of the President, A Budget for a Better 18. In EPA’s final rule amending its regulations under the CAA, the most recent
America 93 (2019), https://www.whitehouse.gov/sites/whitehouse.gov/files/ nonacquiescence scholarship cited by the Agency was a law review article pub-
omb/budget/fy2018/2018_blueprint.pdf (threatening to cut EPA’s budget by lished in 1991. See Amendments to Regional Consistency Regulations, 81
31 percent); U.S. EPA, EPA’s Budget and Spending, https://www.epa.gov/pla- Fed. Reg. 51104 (Aug. 3, 2016) (to be codified at 40 C.F.R. pt. 56) (citing
nandbudget/budget [https://perma.cc/PB8G-ANPN]. Dan T. Coenen, The Constitutional Case Against Intracircuit Nonacquiescence,
2. See Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Admin- 75 Minn. L. Rev. 1339 (1991)). Likewise, in the CWA nonacquiescence case
istrative Agencies, 98 Yale L.J. 679, 681 (1989). before the D.C. Circuit, the only nonacquiescence scholarship cited in the
3. Id. Agency’s brief was a law review article published in 1989. See Brief for Re-
4. Id. spondent at 37–38, Ctr. for Regulatory Reasonableness, 849 F.3d 453 (D.C. Cir.
5. Id. 2017) (No.14-1150) (citing Estreicher & Revesz, supra note 2).
6. See infra Section II.B. 19. See, e.g., Samuel Figler, Executive Agency Nonacquiescence to Judicial Opinions,
7. Estreicher & Revesz, supra note 2, at 717 (quoting the authors’ summary of a 61 Geo. Wash. L. Rev. 1664 (1993); Coenen, supra note 18; Samuel Est-
discussion with EPA’s General Counsel). reicher & Richard L. Revesz, The Uneasy Case Against Intracircuit Nonacquies-
8. 42 U.S.C. §§ 7401–7671q, ELR Stat. CAA §§ 101–618 (2012). cence: A Reply, 99 Yale L.J. 831 (1990); Matthew Diller & Nancy Morawetz,
9. See Nat’l Envtl. Dev. Ass’n’s Clean Air Project v. EPA (“NEDACAP I”), 752 Intracircuit Nonacquiescence and the Breakdown of the Rule of Law: A Response
F.3d 999, 1003, 44 ELR 20123 (D.C. Cir. 2014). See also infra Section II.B.1. to Estreicher and Revesz, 99 Yale L.J. 801 (1990); Estreicher & Revesz, supra
Summer 2019 ADMINISTRATIVE NONACQUIESCENCE AND EPA 3
in part, by a controversial nonacquiescence policy adopted by A. Intercircuit Nonacquiescence

the Social Security Administration (SSA) in the early 80s.20
However, over the past two decades, the topic has only occa- Intercircuit nonacquiescence occurs when “an agency refuses
sionally resurfaced in legal literature.21 The current leading to apply the precedent of one circuit to claims that will be
treatise on nonacquiescence—Nonacquiescence by Federal reviewed by another circuit.”24 Put another way, when a cir-
Administrative Agencies—was published in 1989.22 In short, cuit court issues a decision overturning an agency’s legal posi-
nonacquiescence scholarship is in dire need of an update, and tion, the agency would adhere to the adverse decision within
an analysis of EPA’s nonacquiescence authority and its impli- that circuit’s jurisdiction but continue to act in accordance
cations for environmental law is both ripe and necessary. with its own legal position in other jurisdictions. Among the
This Article argues that EPA should establish intercir- forms of agency nonacquiescence, intercircuit nonacquies-
cuit nonacquiescence policies under each of its statutes in cence is the least controversial and the most widely accepted
the interest of preserving the structure of the federal court form of nonacquiescence.25 Additionally, in a general survey
system and ensuring the continued development of federal of major federal agencies, researchers found that “most agen-
environmental law. The discussion below begins with an cies reported that in appropriate cases they would engage in
overview of the three types of nonacquiescence as identified intercircuit nonacquiescence . . . .”26
by scholars—intercircuit, intracircuit, and venue-choice— The justifications for agency intercircuit nonacquiescence
and details the benefits and costs of each approach. Building may be divided into two related categories: preserving the
off of this background, the discussion turns to EPA’s ability structure of the federal judiciary and assisting courts in
to engage in nonacquiescence under the statutes it enforces, developing important questions of law through intercir-
and takes an in-depth look at EPA’s recent nonacquiescence cuit dialogue.27 First, the practice preserves the structure of
actions under the CAA and CWA. Finally, this Article argues the federal judiciary by ensuring that each circuit is able to
that EPA should adopt intercircuit nonacquiescence policies develop its own “law of the circuit”28 under which circuit
tailored to individual environmental statutes, and proposes panels are “bound by the holding of a previously published
several key features that these policies should have in com- decision in that circuit.”29 Circuit courts abide by a rule of
mon to ensure both regulatory certainty and fairness. intracircuit stare decisis: a circuit panel decision is binding on
all district courts and other future panels unless overruled
I. Overview of Agency Nonacquiescence by the circuit en banc or by the Supreme Court.30 Crucial to
maintaining the “law of the circuit” is the rejection of inter-
Commentators divide agency nonacquiescence into three circuit stare decisis.31 The precedent of one circuit cannot be
varieties: intercircuit nonacquiescence, intracircuit nonac- set by other circuit courts. While the opinions of sister cir-
quiescence, and nonacquiescence in the context of venue cuits may be persuasive, they are not binding.32
choice (“venue-choice nonacquiescence”).23 Before diving A rule against intercircuit nonacquiescence would require
too deeply into EPA’s recent record of nonacquiescence, it is a form of intercircuit stare decisis at odds with each circuit’s
important to define these three approaches and to delineate ability to establish its own “law of the circuit.” Without some
their associated benefits and costs. allowance for intercircuit nonacquiescence, agencies would
be forced to conform all of their proceedings to adverse cir-
cuit court decisions, making it very difficult for other circuit
courts to review the agency’s original policy.33 In effect, an
24. Figler, supra note 19, at 1667.

note 2; Joshua I. Schwartz, Nonacquiescence, Crowell v. Benson, and Admin- 25. See Indep. Petroleum Ass’n of America v. Babbitt, 92 F.3d 1248, 1261 (D.C.
istrative Adjudication, 77 Geo. L.J. 1815 (1989); Deborah Maranville, Non- Cir. 1996) (Rogers, J. dissenting) (“While some courts, including this one,
acquiescence: Outlaw Agencies, Imperial Courts, and the Perils of Pluralism, 39 have criticized agencies that refuse to apply the settled law of the circuit that
Vand. L. Rev. 471 (1986). Far from a comprehensive list of nonacquiescence will review the agency’s action in a particular case, intercircuit nonacquiescence
articles published during this era, the above articles provide an overview of the is permissible, especially when the law is unsettled.”); Davies, supra note 21, at
scholarly voices and conversations surrounding nonacquiescence in the 1980s 71 (“Practically no one objects to the first category of nonacquiescence—the
and early 90s. intercircuit variety”).
20. See infra Section I.B. 26. Estreicher & Revesz, supra note 2, at 716.
21. See, e.g., Nancy M. Modesitt, The Hundred-Years War: The Ongoing Battle 27. Figler, supra note 19, at 1669–70.
Between Courts and Agencies Over the Right to Interpret Federal Law, 74 Mo. 28. Id. at 1670.
L. Rev. 949 (2009) (discussing nonacquiescence at the Equal Employment 29. Joseph W. Mead, Stare Decisis in the Inferior Courts of the United States, 12 Nev.
Opportunity Commission); B. Ross E. Davies, Remedial Nonacquiescence, 89 L.J. 787, 795 (2012).
Iowa L. Rev. 65 (2003) (proposing that scholars should recognize a type of 30. See id. at 796–98; Rebecca Hammer White, Time for a New Approach: Why the
nonacquiescence termed “remedial nonacquiescence”). While other articles Judiciary Should Disregard the “Law of the Circuit” When Confronting Nonac-
have touched on nonacquiescence over the past two decades, scholarship fo- quiescence by the National Labor Relations Board, 96 N.C. L. Rev. 639, 672–73
cusing entirely on nonacquiescence is sparse. (1991). The justifications for stare decisis include promoting the predictability
22. See Estreicher & Revesz, supra note 2; Davies, supra note 21, at 70 (call- and consistency of decisions, ensuring fairness, and maintaining confidence
ing Nonacquiescence by Federal Administrative Agencies the “still-authoritative and trust in the judicial system. See Hohn v. United States, 524 U.S. 236, 251
1989 article”). (1998); Mead, supra note 29, at 792–93.
23. See Estreicher & Revesz, supra note 2, at 687; Modesitt, supra note 21, at 31. See Estreicher & Revesz, supra note 2, at 735–36, 736, n.275; Figler, supra note
958–59; Figler, supra note 19, at 1666–67. But see Davies, supra note 21, at 71 19, at 1670. Cf. Mead, supra note 29, at 790.
(arguing that in addition to the three generally recognized types of nonacqui- 32. See Davies, supra note 21, at 90.
escence, there is a fourth variety termed “remedial nonacquiescence”). 33. See Estreicher & Revesz, supra note 2, at 737.
adverse circuit’s interpretation of the law would become the logue likely enables both the Supreme Court and circuit
national interpretation of the law, regardless of whether other courts to reach better, more thoroughly reasoned decisions.40
circuits would have upheld the agency’s position. In Nonac- Each new court to address an issue will likely “produce a
quiescence by Federal Administrative Agencies, Profs. Samuel more careful and focused consideration” of the matter than
Estreicher and Richard L. Revesz provide a helpful illustra- the court before it because the new court has the benefit of
tion of the problem: examining the legal reasoning of the circuits that have previ-
ously addressed the question.41 Additionally, each new court
Consider, for example, the question whether EPA can use will be “able to observe and compare the consequences of dif-
independent contractors in enforcement proceedings under ferent legal rules” in different circuits and can base its deci-
the Clean Air Act—the question at stake in United States sion on the observed impacts.42
v. Stauffer Chemical Co. If the first court of appeals to face However, intercircuit nonacquiescence is not without
this question determined that EPA could not use indepen- its drawbacks. A significant criticism of the practice is that
dent contractors, a bar against intercircuit nonacquiescence it undermines a uniform application of the law by federal
would prevent the agency from using such contractors any- agencies.43 When an agency practices intercircuit nonacqui-
where in the country. In addition, it is unlikely that any escence, parties within the jurisdiction of an adverse circuit
private party would have standing to argue that the agency will be subjected to one interpretation of the law, while par-
should be given the option of using such contractors. Thus, ties outside of that jurisdiction will be subjected to another.
no subsequent court would have the opportunity to decide This drawback is shown in the prior example provided by
whether independent contractors are part of the permissible Professors Estreicher and Revesz regarding EPA’s use of inde-
arsenal of enforcement options. . . . [T]he adverse ruling of pendent contractors. In circuits that had ruled against EPA,
the court of appeals would therefore become binding . . . .34 the Agency would not be able to use private contractors in
As Estreicher and Revesz suggest, an outright bar on intercir- CAA enforcement proceedings; on the other hand, in circuits
cuit nonacquiescence would effectively halt the development that had not considered the question, the practice of using
of important legal questions at the first adverse circuit court private contractors would continue. The resulting asymmetry
ruling.35 While there is no guarantee that the adverse circuit might only be temporary as a decision by the Supreme Court
ruled correctly on the matter, the agency would have to adopt or an act of the U.S. Congress would bind all circuits to one
the adverse ruling even in circuits that had previously upheld interpretation of the law.44
its position, and “[t]he result would be a one-way ratchet in
which the authoritative voice would be that of the first court B. Intracircuit Nonacquiescence
of appeals to rule against the agency.”36
The second justification for intercircuit nonacquies- Unlike intercircuit nonacquiescence, intracircuit nonac-
cence—intercircuit dialogue—is a natural consequence of quiescence has faced harsh criticism from both courts and
preserving the “law of the circuit” by rejecting intercircuit commentators.45 Intracircuit nonacquiescence describes an
stare decisis.37 By allowing multiple circuits to weigh in on
the same agency interpretation, the “law of the circuit” cre- Davies, supra note 21, at 72; Figler, supra note 19, at 1670. Notably, in Men-
ates a dialogue between different circuits that benefits the doza, the Supreme Court recognized the benefits of intercircuit dialogue in the
development of federal law in two primary ways.38 First, con- context of nonmutual collateral estoppel, writing that if the circuit courts were
not allowed to disagree about agency issues, the Court would have to revise its
flicting opinions among the circuits help the Supreme Court long-standing practice of waiting for a circuit split before granting certiorari.
make better case selections by signaling that the circuits have Mendoza, 464 U.S. at 160.
encountered a difficult or contentious legal issue and increase 40. See Estreicher & Revesz, supra note 2, at 737.
41. Estreicher & Revesz, supra note 2, at 736. The Supreme Court has also en-
the chances of a definitive ruling.39 Second, intercircuit dia- dorsed this benefit of intercircuit dialogue, noting that “[a]llowing only one
final adjudication would deprive this Court of the benefit it receives from per-
mitting several courts of appeals to explore a difficult legal question before
34. Id. at 737–38. this Court grants certiorari.” Mendoza, 464 U.S. at 160. See also Johnson v.
35. Although the Supreme Court has never expressly condoned intercircuit non- U.S. R.R. Ret. Bd., 969 F.2d 1082, 1093 (D.C. Cir. 1992) (“[T]here is an
acquiescence, commentators have pointed to the Court’s decision in United additional value to letting important legal issues “percolate” throughout the
States v. Mendoza, 464 U.S. 159, 16 (1984), as signaling its approval of the judicial system, so the Supreme Court can have the benefit of different circuit
practice. See Figler, supra note 19, at 1670–71; Davies, supra note 21, at 72. court opinions on the same subject.”) (citing Mendoza, 464 U.S. at 160).
In Mendoza, the Court held that nonmutual offensive collateral estoppel could 42. Estreicher & Revesz, supra note 2, at 736.
not be asserted against the government because a rule allowing new claimants 43. See id. at 741 n.302; Figler, supra note 19, at 1672.
to use collateral estoppel against the government, “would substantially thwart 44. See Figler, supra note 19, at 1670; Estreicher & Revesz, supra note 2, at 741
the development of important questions of law by freezing the first final deci- n.302 (also noting that “these costs are no different than those that inhere in
sion rendered on a particular legal issue.” Mendoza, 464 U.S. at 160. Similarly, the rejection of intercircuit stare decisis”).
barring agencies from engaging in intercircuit nonacquiescence would freeze 45. See, e.g., Johnson, 969 F.2d at 1093 (D.C. Cir. 1992) (“[T]he arguments against
an adverse circuit court decision in place by preventing the agency from reliti- inter circuit nonacquiescence . . . are much less compelling than the arguments
gating the question in other circuits. against intra circuit nonacquiescence.”); Grant Med. Ctr. v. Burwell, 204 F.
36. Estreicher & Revesz, supra note 2, at 738−39. Supp. 3d 68, 79 (D.D.C. 2016) (“Agencies that have followed a policy of
37. See id. at 735–36. intracircuit nonacquiescence have been roundly ‘condemned’ by every circuit
38. Id. at 736–37. that has addressed the issue.”); Figler, supra note 19, at 1672–73 (“Intracircuit
39. See Heartland Plymouth Court MI, LLC v. NLRB, 838 F.3d 16, 21 (D.C. nonacquiescence, by contrast to the other two forms of nonacquiescence is
Cir. 2016) (granting that “nonacquiescence allows for an issue’s ‘percolation’ very controversial and raises serious doubt as to its constitutionality.”). The
among the circuits; generating a circuit split that can improve the likelihood debate over the costs, benefits, and constitutional concerns of intracircuit non-
of certiorari being granted.”); Estreicher & Revesz, supra note 2, at 736–37; acquiescence provoked a rather heated exchange across two volumes of the Yale
agency’s refusal to “follow the precedents of the circuit in eration of past precedent is so rare that only marginal intercir-
which it knows an agency decision will be appealed.”46 In cuit dialogue is produced by intracircuit nonacquiescence.53
other words, an agency practices intracircuit nonacquies- Another argument in favor of intracircuit nonacquies-
cence when it receives an adverse circuit court decision, but cence is that it promotes uniform application of the law by
refuses to conform its proceedings in future actions to the federal agencies across all circuits.54 Instead of the agency
adverse decision despite knowing that the adverse circuit will applying two interpretations of the law—which could lead to
review those actions. unfair outcomes, especially among competitive industries—
Judicial and scholarly skepticism towards intracircuit the agency need only apply its interpretation of the law.55
nonacquiescence is rooted largely in constitutional con- However, as critics are quick to point out, the resulting “hori-
siderations. While legal scholars have produced a variety zontal” uniformity across the circuits comes at the expense
of constitutional arguments against intracircuit nonacqui- of “vertical” uniformity.56 While the agency may be apply-
escence, most commentators agree that, at the very least, ing the law uniformly in its proceedings, the district courts
intracircuit nonacquiescence poses a separation of powers are obligated to apply the law of the circuit. Parties who
problem.47 Intracircuit nonacquiescence may infringe on the lose on the administrative level need only appeal their case
judiciary’s power to interpret the law by enabling agencies to to the federal courts to receive a favorable ruling. The lack
disregard circuit precedent in their administrative proceed- of vertical uniformity effectively creates two legal regimes:
ings.48 As one court put it, “[t]he judiciary’s duty and author- one for well-heeled, sophisticated claimants who are able to
ity, as first established in Marbury, ‘to say what the law is’ seek judicial review, and one for “[t]hose not so blessed . . .
would be rendered a virtual nullity if coordinate branches [whose] claims will remain rejected on the basis of unfavor-
of government could effectively and unilaterally strip its able agency rules.”57 In addition to the fundamental unfair-
pronouncements of any precedential force.”49 ness of this scheme, these disparate results may also violate
One counterargument to the uneasy constitutionality of the Fifth Amendment’s Equal Protection Clause.58
intracircuit nonacquiescence is that the practice encourages A final argument in favor of intracircuit nonacquiescence
intercircuit dialogue and aids in the development of legal is that the resulting horizontal uniformity may enable agen-
questions.50 Returning to the example of EPA’s use of inde- cies to save on the administrative costs of training agency
pendent contractors, Estreicher and Revesz posit a scenario personnel to follow both the agency’s policy and adverse cir-
in which the U.S. Court of Appeals for the Second Circuit cuit decisions.59 However, this benefit has also been disputed.
strikes down the use of such contractors, but afterwards As commentators have pointed out, simply adhering to the
both the Sixth Circuit and the U.S. Court of Appeals for the law of circuit could cut agency costs:
Ninth Circuit uphold the practice:
In many cases, nonacquiescence causes two rounds of
It would be desirable for the agency to be able to go back administrative proceedings where only one would have been
before the Second Circuit and reargue its position in light necessary if circuit rules had been applied by the agency in
of subsequent victories. The Second Circuit might be per- the first instance . . . . [T]here can be little question that the
suaded by the arguments of the two other circuits, and the administrative costs of readjudicating every case where the
conflicting positions might be harmonized without the need circuit abides by its prior decisions would exceed those of
for review by the Supreme Court.51 compliance with case law.60
Moreover, the practice likely creates costs within the federal
However, the benefits of this intercircuit dialogue are condi- court system by increasing the volume of cases reaching the
tioned upon the circuit’s willingness to overturn past prec- courts.61 When a circuit court overturns an agency policy,
edent and the agency’s success rate at convincing courts to do litigants will naturally seek review.62 If the agency acqui-
so.52 As some commentators have suggested, circuit reconsid- esces to the circuit’s decision, the review would stop at the
agency level, because the litigant would be satisfied with the
Law Journal between Professors Estreicher and Revesz, who defended the prac- 53. See, e.g., Davies, supra note 21, at 78; Diller & Morawetz, supra note 19, at
tice in some instances, and the lead counsels in a class action suit challenging 812.
the Social Security Administration’s intracircuit nonacquiescence policies. See 54. Estreicher & Revesz, supra note 2, at 747.
Estreicher & Revesz, supra note 2, at 743–53; Diller & Morawetz, supra note 55. Id. at 747–49.
19; Estreicher & Revesz, supra note 19. 56. See Coenen, supra note 18, at 1414–16; Diller & Morawetz, supra note 19, at
46. Figler, supra note 19, at 1668. 814–16 (noting that in the SSA disability benefits context, claimants waiting
47. See, e.g., Figler, supra note 19, at 1674; Coenen, supra note 18, at 1357 for their appeals to be heard in federal court “literally may not survive until the
(“Courts and scholars widely agree that the key constitutional question con- day when benefits are finally granted.”).
cerning intracircuit nonacquiecsence is whether the practice transgresses the 57. Coenen, supra note 18, at 1420; see also Estreicher & Revesz, supra note 2, at
so-called ‘separation of powers principle.”); see also Coenen, supra note 18, 749–50 (conceding that vertical disuniformity and resulting unequal adminis-
at 1351–69 (collecting and discussing the various constitutional arguments tration of justice is a cost of intracircuit nonacquiescence).
against intracircuit nonacquiescence). 58. Figler, supra note 19, at 1675.
48. See Figler, supra note 19, at 1674; Diller & Morawetz, supra note 19, at 822. 59. Estreicher & Revesz, supra note 2, at 748–49.
49. Stieberger v. Heckler, 615 F. Supp. 1315, 1357 (S.D.N.Y. 1985). 60. Diller & Morawetz, supra note 19, at 814.
50. Estreicher & Revesz, supra note 2, at 743. 61. Estreicher & Revesz, supra note 2, at 750; Diller & Morawetz, supra note 19,
51. Id. at 817.
52. See Davies, supra note 21, at 78; Diller & Morawetz, supra note 19, at 812. 62. Estreicher & Revesz, supra note 2, at 750.
agency’s determination.63 However, when the agency non- many scholars have taken a kinder view of the practice,
acquiesces to the circuit decision, litigants have to appeal equating venue-choice nonacquiescence more to intercircuit
their case to a federal court to take advantage of the change rather than intracircuit nonacquiescence.72 Unlike intracir-
in circuit precedent.64 cuit nonacquiescence, venue-choice nonacquiescence is not
a bald-faced challenge to the judiciary’s Article III authority.
C. Venue-Choice Nonacquiescence While the agency’s position may resemble intracircuit nonac-
quiescence to the reviewing court, in truth the agency con-
The final category of nonacquiescence describes an agency’s ducted its proceedings without knowing whether its actions
refusal to follow the case law of a circuit, “but review may would be reviewed in an adverse or non-adverse circuit.73
be had either in that court or in one that has not rejected Moreover, venue-choice nonacquiescence achieves many
the agency’s position.”65 Put differently, an agency engages of the same benefits as intercircuit nonacquiescence by pre-
in venue-choice nonacquiescence when it refuses to follow serving the role of each regional circuit in developing the
the precedent of an adverse circuit, but cannot be certain law of the circuit.74 A rule against venue-choice nonacquies-
that the adverse circuit will actually review its proceedings, cence would force any agency operating under a broad venue
or whether review will be had in a favorable circuit or a cir- provision to conform all of its administrative actions to the
cuit that has not considered the issue. As one colorful com- ruling of an adverse circuit, thereby preventing non-adverse
mentator described it: “Venue choice nonacquiescence is the circuits from reviewing the agency’s original position.75 Con-
Schrödinger’s Cat of administrative law.”66 sequently, the Supreme Court would have greater difficulty
A good example of an agency with a long-standing venue- choosing cases involving the agency for review. Likewise, nei-
choice nonacquiescence policy is the National Labor Rela- ther the Supreme Court nor other circuits would be able to
tions Board (NLRB). The National Labor Relations Act reap the benefits of intercircuit dialogue in developing ques-
(NLRA)67 authorizes the NLRB to enforce the unfair labor tions of law concerning the agency.76
practice provisions of the Act.68 Any person “aggrieved” by
the NLRB’s final order in an NLRA case may seek review II. Nonacquiescence and EPA
of the order in the circuit court where the unfair labor prac-
tice occurred, in the circuit court where the person resides As the NLRB example from above demonstrates, an agency’s
or transacts business, or in the D.C. Circuit.69 Therefore, internal structure and enabling statute largely determine
where there are multiple “aggrieved” persons to the Board’s how the agency may engage in nonacquiescence. EPA is no
order, judicial review of the order could be had in multiple exception to this rule: the types of nonacquiescence avail-
circuits.70 Therefore, the Board does not know whether its able to EPA are a product of the various environmental stat-
order will be reviewed in an adverse circuit or a non-adverse utes administered by the Agency and the Agency’s regional
circuit, and the Board must conduct its proceedings largely enforcement structure.77 Until recently, the scope of EPA’s
in ignorance of the reviewing court. nonacquiescence authority went largely untested because
Venue-choice nonacquiescence as practiced by the NLRB the Agency has traditionally avoided nonacquiescence under
has been met with mixed reactions by courts.71 However, any circumstance.78 However, both the Agency’s rulemak-
63. Id. “unless the Board has a good faith intention of seeking review of the particular
64. Id. proceeding by the Supreme Court.”); Allegheny Gen. Hosp. v. NLRB, 608
65. Id. at 687. F.2d 965, 970 (3d Cir. 1979) (“But the Board is not a court nor is it equal to
66. Davies, supra note 21, at 81. this court in matters of statutory interpretation. . . . For the Board to predicate
67. 29 U.S.C. §§ 151–169 (2012). an order on its disagreement with this court’s interpretation of a statute is for
68. § 156; Estreicher & Revesz, supra note 2, at 705. it to operate outside the law.”).
69. § 160(f ). 72. See, e.g., Estreicher & Revesz, supra note 2, at 741 (“For the most part, [venue-
70. Once the Board issues its order, determining a final venue for judicial review choice nonacquiescence] . . . raises the same issues as intercircuit nonacquies-
is a matter of luck and timing. Under 28 U.S.C. § 2112(a) (2012), the Board cence”); Diller & Morawetz, supra note 19, at 802 n.8 (acknowledging that
must file the record in the court where review is sought. If two or more parties venue-choice nonacquiescence “raises different questions from intracircuit
file in different circuits within 10 days of the Board’s order, the NLRB must nonacquiescence”); Schwartz, supra note 19, at 1833–34 n.59 (“The distinc-
apply to the Judicial Panel on Multidistrict Litigation to decide where it should tion recognized by Professors Estreicher and Revesz between intracircuit non-
file the record. §§ 2112(a)(1), (3). However, if only one petition for review is acquiescence and nonacquiescence in the presence of venue choice is useful
filed within the 10-day window, the Board will file the record with that court. because different factors bear on the lawfulness of nonacquiescence in these
§ 2112(a)(1). Finally, if none of the parties file within 10 days, the Board will two situations.”). Notably, the D.C. Circuit also took a more favorable view
file the record with the first court to receive a petition for review, effectively of venue-choice nonacquiescence after the publication of Estreicher & Revesz’
setting up a first-to-file rule. Id. See also United Auto., Aerospace, and Agric. seminal article. Compare Johnson, 969 F.2d at 1092, with Yellow Taxi Co. of
Implement Workers v. NLRB, 677 F.3d 276, 277 (6th Cir. 2012). Minn. v. NLRB, 721 F.2d 366, 382–83 (D.C. Cir. 1983).
71. See Heartland Plymouth Court MI, LLC v. NLRB, 838 F.3d 16, 22–25 (D.C. 73. See Estreicher & Revesz, supra note 2, at 742 (noting that reviewing courts
Cir. 2016) (noting that while the circuit had previously approved of venue- sometimes treat venue-choice nonacquiescence as intracircuit nonacquiescence
choice nonacquiescence, in this particular case the Board improperly engaged because, “from the perspective of that court, the agency’s behavior looks like
in intracircuit nonacquiescence because it knew that the case would be ap- intracircuit nonacquiescence” and courts often rush to criticize the practice
pealed to the D.C. Circuit yet persisted in applying an interpretation of the law “without considering the differences between [the two].”).
contrary to circuit precedent); Johnson v. U.S. R.R. Ret. Bd., 969 F.2d 1082, 74. See Estreicher & Revesz, supra note 2, at 741.
1092 (D.C. Cir. 1992) (distinguishing the NLRB’s permissible venue-choice 75. See id.
nonacquiescence from the Railroad Retirement Board’s impermissible intracir- 76. See supra Section I.A. (discussing benefits of intercircuit nonacquiescence).
cuit nonacquiescence); NLRB v. Ashkenazy Prop. Mgmt. Corp., 817 F.2d 74, 77. See infra Section II.A.
75 (9th Cir. 1987) (holding that the Board should adhere to circuit precedent 78. See Estreicher & Revesz, supra note 2, at 716.
ing under the CAA and litigation before the D.C. Circuit ing over twenty statutes,89 including the CAA, the CWA, the
under the CWA demonstrate that the Agency is presently Comprehensive Environmental Response, Compensation,
engaged in intercircuit nonacquiescence and will continue and Liability Act (CERCLA),90 the Safe Drinking Water
to do so in the future.79 These cases help explain how the Act (SDWA),91 the Resource Conservation and Recovery Act
Agency approaches nonacquiescence and delineate counter- (RCRA),92 and the Toxic Substances Control Act (TSCA).93
arguments to the practice. Each of these statutes contains a separate judicial review
provision dictating which courts may hear which cases.94
A. General Principles of EPA Nonacquiescence Consequently, EPA may be able to practice different types
of nonacquiescence depending on the statute at issue and the
Nonacquiescence at EPA is guided both by the Agency’s circumstances of the particular case.
internal structure and by the judicial review provisions of This distinction is best understood by comparing two dif-
statutes administered by the Agency. EPA is headed by a sin- ferent statutes: RCRA and CERCLA. Under RCRA, EPA
gle Administrator, who is appointed by the president with the may issue permits for hazardous waste storage facilities.95
advice and consent of the U.S. Senate.80 Working through a Judicial review of a particular permit may be sought by
variety of specialized offices at EPA headquarters in Wash- “any interested person in the Circuit Court of Appeals of
ington, the Administrator develops the Agency’s nationally the United States for the Federal judicial district in which
applicable programs and regulations.81 Implementation and such person resides or transacts such business . . . .”96 Inter-
enforcement of these national programs and regulations falls ested “persons” could include states, national environmental
to ten regional offices, each of which oversees a designated groups, individual citizens, trade associations, or even other
geographical area.82 Most environmental statutes also allow federal agencies.97 In effect, many circuits could potentially
EPA to delegate some of its enforcement and implementation review a permitting decision, including circuits with adverse
authority to state governments.83 precedent. If EPA nonacquiesces to adverse circuit precedent
If enforcement responsibility falls on EPA, the Agency when issuing a permit, the Agency would be engaging in
may either proceed by filing a civil or criminal enforce- venue-choice nonacquiescence because the Agency has no
ment action in federal court, or by initiating administrative means of knowing which court will review the decision.
enforcement proceedings.84 In an administrative proceed- By contrast, suppose EPA wishes to remediate a hazard-
ing, the case is first heard before an administrative law judge ous waste dumping site in Illinois and recover the costs of its
(ALJ) or regional judicial officer (RJO).85 The decisions of cleanup from the party responsible for dumping the waste.98
the ALJ or RJO may be appealed to the Environmental Under CERCLA’s judicial review provision, venue for the
Appeals Board (EAB).86 The EAB’s decision represents the cost recovery action “shall lie in any district in which the
final Agency action, and may be appealed in federal court.87 [hazardous substance] release or damages occurred, or in
Like the NLRB, EPA’s approach to nonacquiescence is which the defendant resides, may be found, or has his prin-
largely dictated by the judicial review provisions of the par- cipal office.”99 If the defendant does all of its business in Illi-
ticular statute at issue. However, no single statute autho- nois and also claims residence in Illinois, then EPA knows
rizes EPA to enforce federal environmental law. Rather the for certain that the U.S. Court of Appeals for the Seventh
Agency was created by executive order and has since been Circuit precedent will apply to the cost recovery claim. In
tasked with enforcing a variety of environmental statutes.88 this instance, the Agency would only be able to engage in
Today, EPA has sole or partial responsibility for administer- intercircuit nonacquiescence by ignoring adverse precedent
in another circuit, or intracircuit nonacquiescence by ignor-
ing Seventh Circuit precedent.
79. See infra Section II.B.
Notably, however, many environmental statutes preclude
80. Reorganization Plan No. 3 of 1970, 84 Stat. 2086 (1970) (codified at 5 U.S.C. any form of nonacquiescence by vesting sole review of certain
app. at 202 (2012)). nationally applicable agency actions in the D.C. Circuit.100
81. See 40 C.F.R. § 1.5 (2016). See also 40 C.F.R. §§ 1.21–1.49 (2016) (more
information on the division of labor between offices at EPA headquarters).
82. Robert Esworthy, Cong. Research Serv., RL34384, Federal Pollution 89. Laws and Executive Orders, EPA, https://www.epa.gov/laws-regulations/laws-
Control Laws: How Are They Enforced? 8 (2014). See also 40 C.F.R. and-executive-orders#majorlaws [https://perma.cc/8EZ2-7T35].
§ 1.61 (2016). 90. 42 U.S.C. §§ 9601–9675, ELR Stat. CERCLA §§ 101–405 (2012).
83. See Esworthy, supra note 82, at 10. For instance, Section 402 of the CWA 91. 42 U.S.C. §§ 300f–300j-26, ELR Stat. SDWA §§ 1401–1465.
allows each state to administer its own permitting program for pollutant dis- 92. 42 U.S.C. §§ 6901–6992k, ELR Stat. RCRA §§ 1001–11011.
charges, provided that the Administrator approves of the plan. 33 U.S.C. 93. 15 U.S.C. §§ 2601–2692, ELR Stat. TSCA §§ 2–412 (2012).
§ 1342(b) (2012). 94. See 42 U.S.C. § 7607(b); 33 U.S.C. § 1369(b)(1) (2012); 42 U.S.C §§ 300j-
84. See Esworthy, supra note 82, at 22–24. 7, 6976, 9613(a)–(b); 15 U.S.C. § 2618(a)(1)(A).
85. See id. at 22–23. 95. 42 U.S.C. § 6925.
86. See Esworthy, supra note 82, at 23. 96. 42 U.S.C. § 6976(b).
87. A Citizen’s Guide to EPA’s Environmental Appeals Board, EPA 32 97. 42 U.S.C. § 6903(15).
(2013), https://yosemite.epa.gov/oa/EAB_Web_Docket.nsf/8f612ee7fc725e 98. See 42 U.S.C. § 9604(a) (granting EPA remediation authority); 42 U.S.C.
dd852570760071cb8e/26e637699cb1cc1685257b50004044f6/$FILE/Citi- § 9607(a) (2012) (allowing EPA to recover costs of its remediation actions).
zens%20Guide%20January%202013.pdf. 99. 42 U.S.C. § 6913(b).
88. See Reorganization Plan No. 3 of 1970, 84 Stat. 2086 (1970) (codified at 5 100. See, e.g., 42 U.S.C. §§ 300j-7(a), 6976(a)(1), 6976(b), 7607(b)(1), 9613(a)–
U.S.C. app. at 202 (2012)). See generally The Guardian: Origins of the EPA, (b). A notable exception to this general rule is the CWA, which provides that
EPA Archive, https://archive.epa.gov/epa/aboutepa/guardian-origins-epa. interested persons may challenge nationally applicable regulations in the cir-
html [https://perma.cc/2BAV-LZJU]. cuit court in which the person resides or transacts business affected by the regu-
Under the CAA, for instance, the D.C. Circuit has sole juris- [In our discussion with EPA General Counsel] we learned
diction over EPA actions that set national ambient air quality that with respect to both rulemaking and enforcement
standards, standards for new stationary sources of air pol- actions, EPA’s general policy is to eschew relitigation of an
lution, and motor vehicle emission standards.101 Likewise, issue that has been squarely decided against it in any circuit.
under the SDWA, only the D.C. Circuit can review national Enforcement actions are brought in the district courts, how-
primary water regulations.102 ever, and EPA will on occasion seek to preserve its position
Under these provisions, EPA effectively cannot practice by not appealing to an adverse district court decision. [The
any form of nonacquiescence. Venue-choice and intercircuit General Counsel] explained that, because of a special need
nonacquiescence require, by definition, the opportunity for to maintain uniformity in the environmental context, and a
review by multiple circuits; where only one circuit can review relatively responsive Congress, the agency has avoided reliti-
an agency action, both venue-choice and intercircuit non- gation as a tool of policy.109
acquiescence are inapplicable.103 Likewise, while EPA may
While the Agency may have attempted avoiding nonacqui-
theoretically engage in intracircuit nonacquiescence by refus-
escence in the past, recent actions indicate that the Agency
ing to conform its proceedings to an adverse D.C. Circuit
has since adopted a different posture. In National Environ-
decision, the practice would be unprecedented.104 Moreover,
mental Development Ass’n’s Clean Air Project v. EPA (NEDA-
the benefits of practicing intracircuit nonacquiescence in this
CAP I),110 the Agency argued before the D.C. Circuit that
context are almost nonexistent. No intercircuit dialogue is
it could nonacquiesce to a Sixth Circuit decision regard-
advanced because no other circuit can consider the decision,
ing the definition of “major sources” under Title V of the
and the D.C. Circuit is unlikely to reconsider its decision
CAA.111 When the D.C. Circuit ruled against EPA, holding
without sister circuit opinions to the contrary.105 that the Agency’s Regional Consistency Regulations112 pre-
cluded nonacquiescence, the Agency responded by amend-
B. Recent EPA Nonacquiescence Actions ing the regulations specifically to accommodate intercircuit
nonacquiescence.113 The Agency later successfully defended
Unlike the SSA and NLRB, EPA does not have a storied his- the amended regulations in a second case before the D.C.
tory of asserting its right to nonacquiesce in federal court.106 Circuit, National Environmental Development Ass’n’s Clean
In preparing to write Nonacquiescence by Administrative Air Project v. EPA (NEDACAP II).114 Similarly, in Center for
Agencies, Professors Estreicher & Revesz conducted a survey Regulatory Reasonableness v. EPA,115 EPA argued that it could
of major federal agencies regarding their nonacquiescence nonacquiesce to a decision of the Eighth Circuit regarding
practices.107 EPA was one of only two agencies to indicate the definition of “secondary treatment” under the CWA.116
that it did not engage in any form of nonacquiescence.108 As Although the court in Center for Regulatory Reasonableness
Estreicher and Revesz explained: v. EPA ultimately did not resolve the nonacquiescence issue
in the case,117 arguments raised by the petitioners against the
practice suggest that the Agency’s nonacquiescence authority
may be significantly limited by the statute.118
lation. 33 U.S.C. § 1369(b)(1). Likewise, TSCA allows for review of nationally
applicable rules and orders in the D.C. Circuit or in any circuit where a party
resides or has its principle place of business. 15 U.S.C. § 2618(a)(1)(A) (2012). 1. NEDACAP and Amendments to CAA Regional
101. 42 U.S.C. § 7601(b)(1)
102. 42 U.S.C. § 300j-7(a)
Consistency Regulations
103. See supra Sections I.A. & I.C.
104. See Estreicher & Revesz, supra note 2, at 716. In their agencywide survey of The legal saga leading up to EPA’s decision to amend its
nonacquiescence practices, Professors Estreicher and Revesz found that “where Regional Consistency Regulations began with the Sixth
review of agency action is vested exclusively in a particular court of appeals, the
agencies reported that they would conform their proceedings to accord with Circuit’s decision in Summit Petroleum Corp. v. EPA.119 In
the rulings of that court.” Id. Notably, even the SSA reported adhering to this Summit, the court struck down EPA regulations under Title
general rule. Id. at 716 n.196. Likewise, agencies tended to give D.C. Circuit
decisions “special weight” even when the D.C. Circuit shared review with the
regional circuits. Id. at 716. 109. Id.
105. Note that this does not preclude EPA from petitioning for en banc review 110. 752 F.3d 999, 44 ELR 20123 (D.C. Cir. 2014).
or from the D.C. Circuit initiating its own en banc review. See Diller & 111. See id. at 1003.
Morawetz, supra note 19, at 805–06. 112. See Regional Consistency Regulations, 40 C.F.R. § 56.3(a) (2014).
106. Cf. Estreicher & Revesz, supra note 2, at 717. Notably in the Agency’s final rule 113. See Nat’l Envtl. Dev. Ass’n Clean Air Project v. EPA (“NEDACAP”), 752 F.3d
amending its Regional Consistency Regulations under the CAA, see Amend- 999, 1011, 44 ELR 20123 (D.C. Cir. 2014). See also Amendments to Regional
ments to Regional Consistency Regulations, 81 Fed. Reg. 51102 (Aug. 3, Consistency Regulations, 81 Fed. Reg. 51102 (Aug. 3, 2016) (to be codified at
2016) (to be codified at 40 C.F.R. pt. 56), the Agency only identifies one other 40 C.F.R. pt. 56).
instance of EPA nonacquiescence before 2012. In Envtl. Def. v. Duke Energy 114. See NEDACAP II, No. 16.1344 at 4–5, 48 ELR 20093 (D.C. Cir. 2018).
Corp., 549 U.S. 561 (2007), the Supreme Court vacated a U.S. Court of Ap- 115. 849 F.3d 453, 47 ELR 20031 (D.C. Cir. 2017).
peals for the Fourth Circuit decision under the CAA. Id. at 1437. However, in 116. See Brief for Respondent at 37–38, Ctr. for Regulatory Reasonableness, 849 F.3d
the two years between the Fourth Circuit’s ruling and the Supreme Court’s de- 453 (D.C. Cir. 2017) (No.14-1150). See also Iowa League of Cities v. EPA,
cision, the Agency apparently nonacquiesced to the circuit’s decision in other 711 F.3d 844, 877, 43 ELR 20069 (8th Cir. 2013).
circuits. See Amendments to Regional Consistency Regulations, 80 Fed. Reg. 117. See 849 F.3d at 454.
50250, 50257 (proposed Aug. 19, 2015) (to be codified at 40 C.F.R. pt. 56). 118. See Brief for Respondent at 37–38, Ctr. for Regulatory Reasonableness, 849 F.3d
107. See Estreicher & Revesz, supra note 2, at 716. 453 (D.C. Cir. 2017) (No.14-1150); Center for Regulatory Reasonableness, 849
108. Id. at 717. The other agency to report that it did not engage in nonacquies- F.3d at 454.
cence was the Federal Communications Commission. Id. 119. 690 F.3d 733, 42 ELR 20167 (6th Cir. 2012).
V of the CAA, which declared that multiple pollutant emit- In August 2016, the Agency took the court’s advice and
ting activities could be regulated as a single “major source” issued a final rule amending the Regional Consistency Regu-
of pollution so long as the activities were “located on one lations to accommodate intercircuit nonacquiescence.130 The
or more contiguous or adjacent properties.”120 Two months new regulations have two primary components. First, the
after the Summit decision, the Director of EPA’s Office of regulations establish a presumption that in the event of an
Air Quality and Standards issued a memorandum (the “Sum- adverse circuit decision, the regional offices will continue to
mit Directive”) addressing the impact of the Sixth Circuit’s apply the Agency’s national policy in jurisdictions outside
determination.121 The Summit Directive stated that in areas the adverse circuit.131 Second, the new regulations provide
under Sixth Circuit jurisdiction, EPA “may no longer con- that the regional offices should apply an adverse circuit deci-
sider interrelatedness in determining adjacency when mak- sion within that circuit’s jurisdiction, and may do so without
ing source determination decisions in its Title V or New seeking a concurrence from EPA headquarters.132
Source Review (NSR) permitting decisions . . . .”122 In an In support of the new policy, EPA turned to the traditional
unequivocal statement of intercircuit nonacquiescence, how- rationales in favor of intercircuit nonacquiescence, includ-
ever, the Agency determined that it would not “change its ing preserving the federal court structure and encouraging
longstanding practice of considering interrelatedness in EPA the development of federal law.133 The Agency also stressed
permitting actions in other jurisdictions.”123 that intercircuit nonacquiescence promotes predictability for
In 2013, the National Environmental Development Asso- regulated industries.134 Instead of guessing how the Agency
ciation (“the Association”) challenged the Summit Directive will respond, EPA argued that regulated entities could pre-
in the D.C. Circuit on two grounds. First, the Association sume that “[it] will continue to apply the national policy
argued that Section 7601 of the CAA precludes any inter- nationwide, except for those geographic areas impacted by
circuit nonacquiescence under the statute. Section 7601 the adverse decision.”135
requires EPA to issue regulations that “assure fairness and The Agency rejected several commenters’ suggestion that
uniformity in the criteria, procedures, and policies applied the Agency “add regulatory text defining the parameters
by the various regions in implementing and enforcing [the under which the Agency would be required to re-evaluate
CAA].”124 Second, the Association argued that even if the its national policy following adverse court decisions.”136
language of Section 7601 did not preclude intercircuit non- After consideration, the Agency determined that a case-
acquiescence, the regulations (“Regional Consistency Regu- by-case approach “is best because it allows EPA to consider
lations”) passed pursuant to Section 7601 nonetheless forbid the individual merits of each decision . . . rather than apply
the Agency from engaging in nonacquiescence because they a rigid formula.”137 Likewise, the Agency rejected sugges-
required regional administrators to ensure that their actions tions that it add text requiring the Agency’s headquarters
“[a]re as consistent as reasonably possible with the activities to concur in a regional office’s decision to deviate from
of other Regional Offices . . . .”125 national policy.138 According to the Agency, requiring a
A D.C. Circuit panel vacated the Summit Directive on concurrence may undercut one key purpose of the regula-
this latter argument.126 The court held that because EPA’s tions “to establish the presumption that national policy
regulations mandated uniformity in enforcing the CAA, the remains national policy . . . .”139
Agency could not simply ignore unfavorable circuit court In response to the amended Regional Consistency Regu-
decisions and must apply the Summit holding both within lations, the Association launched a second challenge in the
and outside of the Sixth Circuit.127 Notably, the court did D.C. Circuit (NEDACAP II), arguing again that Section
not address the Association’s first argument that the CAA 7601 of the CAA precludes intercircuit nonacquiescence
itself precluded nonacquiescence.128 Furthermore, the court under the statute.140 A circuit panel denied the petition for
suggested that EPA might be able to comply with its own review of the regulations, characterizing the Association’s
regulations simply by “revis[ing] its uniformity regulation to
account for regional variances created by a judicial decision
or circuit splits.”129 130. Amendments to Regional Consistency Regulations, 81 Fed. Reg. 51102 (Aug.
3, 2016) (to be codified at 40 C.F.R. pt. 56).
131. Id. at 51109, 51113.
132. Id. at 51105, 51114.
120. 40 C.F.R. § 71.2 (2016); see Summit, 690 F.3d at 744. 133. Id. at 51103–04. See supra Section I.A., for a complete discussion of the argu-
121. Memorandum on Applicability of the Summit Decision to EPA Title V and ments for and against intercircuit nonacquiescence.
NSR Source Determinations, EPA (Dec. 21, 2012), https://www.epa.gov/ 134. Amendments to Regional Consistency Regulations, 81 Fed. Reg. at 51104.
sites/production/files/2015-07/documents/inter2012.pdf [https://perma.cc/ 135. See id. at 51108–09:
V67T-26TL] [hereinafter Summit Directive]. If the revisions to the Regional Consistency regulations had already
122. Id. at 1. been in place at the time of the Summit decision, [the Summit Di-
123. Id. rective] would not have been necessary because EPA Regions, states,
124. 42 U.S.C. § 7601(a)(2)(A) (2012). other potentially affected entities . . . would have known that this type
125. Regional Consistency Regulations, 40 C.F.R. § 56.5(a)(2) (2014). of permit-specific, local and regional decision would only apply in the
126. NEDACAP I, 752 F.3d 999, 1011, 44 ELR 20123 (D.C. Cir. 2014). areas under the jurisdiction of the Sixth Circuit . . . .
127. Id. at 1011 (“[A]n agency may not refuse to acquiesce if doing so violates 136. Id. at 51111.
is own regulations. . . . EPA’s current regulations preclude EPA’s inter-circuit 137. Id.
nonaquiescence [sic] in this instance . . . .”). 138. Id.
128. Id. 139. Id.
129. Id. at 1010. 140. NEDACAP II, No. 16.1344 at 4, 48 ELR 20093 (D.C. Cir. 2018).
position as “difficult to comprehend . . . .”141 The court ques- chemical processes.149 In November 2013, the United States
tioned how the Association would have preferred the Agency Conference of Mayors, the National League of Cities, the
to respond after the Summit decision: National Association of Counties, and other entities wrote a
letter to EPA seeking clarification of whether the Eighth Cir-
Petitioners contend that the agency cannot follow the cuit’s decision would be implemented nationally.150 In two
approach announced in the Summit Directive. Does that letters from April and June 2014, EPA replied that the deci-
mean that EPA must apply the Sixth Circuit decision in all sion in Iowa League of Cities only constituted binding prec-
regions? The statute does not require this. And if the Seventh edent in the Eighth Circuit.151 In August 2014, the Center
Circuit subsequently issues a judgment that is at odds with for Regulatory Reasonableness (“Center”) filed a petition for
the Sixth Circuit decision, would EPA be required to change review with the D.C. Circuit, stating that through the April
its position again? Petitioners offer no viable answers.142 and June letters, EPA had impermissibly reissued the vacated
While the court did not explicitly lend support to the prac- blending rule outside the Eighth Circuit.152
tice of intercircuit nonacquiesence, it found EPA’s regulations The Center made three primary arguments in favor of
to be a reasonable response to the “potential for intercircuit national application of the Eighth Circuit’s decision in Iowa
inconsistency” created by the CAA.143 The court noted that League of Cities. First, the Center argued that intercircuit
if EPA were required to change its policy each time a circuit nonacquiescence, as practiced by EPA through the April
court issued an adverse decision, “the first court of appeals to and June letters, contravenes the CWA’s implicit objective
address an issue would determine EPA’s policy nationwide.”144 of establishing nationally applicable standards.153 Second,
The court also acknowledged that intercircuit conflicts were the Center argued that allowing for intercircuit nonacquies-
not “inherently bad” and that intercircuit nonacquiesence cence would create “regulatory havoc” by leading to different
could help foster intercircuit dialogue.145 Finally, the court requirements for regulated industry in different circuits, and
recognized that the downside of the Regional Consistency burdening individual EPA regional offices with the enforce-
Regulations, “[p]etitioners’ ostensible parade of horribles— ment of multiple circuit standards.154
a potentially national thicket of inconsistent decisions—is Finally, the Center argued that the judicial review pro-
overblown, to say the least . . .” because inconsistent decisions vision of the CWA precludes EPA nonacquiescence.155 The
could be resolved by either the Supreme Court or a change in relevant judicial review provision of the CWA provides that:
the Agency’s rules or policies.146 Review of the Administrator’s action . . . in approving or pro-
After the legal saga leading to NEDACAP II, the Regional mulgating any effluent limitation or other limitation under
Consistency Regulations represent the Agency’s most liti- section 1311, 1312, 1316, or 1345 of this title . . . may be had
gated and most authoritative statement in support of non- by any interested person in the Circuit Court of Appeals of
acquiescence. The regulations provide a comprehensive the United States for the Federal judicial district in which
approach to nonacquiescence under one of the Agency’s such person resides or transacts business which is directly
most important statutes, and as discussed in Part III,147 may affected by such action upon application by such person.156
also serve as a basic model for agency nonacquiescence under
other statutes. Before assessing this prospect however, it is When multiple parties file challenges under this section in
important to consider the Agency’s other recent major non- more than one circuit, those actions are subject to 28 U.S.C.
acquiescence action. § 2112(a) (2012), which consolidates the petitions into one
circuit by lottery and then allows only that circuit to adju-
2. Nonacquiescence Following dicate the petitions.157 Both the Center and EPA agreed that
Iowa League of Cities
149. See id. at 876–78.
150. U.S. EPA, Iowa League of Cities v EPA Desk Statement, R. App. 4, https://www.
Around the same time that EPA issued the Summit Direc- supremecourt.gov/DocketPDF/17/17-334/26628/20180103134821282_
tive asserting a right to nonacquiesce under the CAA, EPA CRRs%20Reply%20Brief%20Appendices%201-7%20-%20Filed%201-3-
also asserted a right to nonacquiesce under another major 18.pdf.
151. Petitioner’s Appendix at 1–2, Ctr. for Regulatory Reasonableness v. EPA, 849
environmental statute, the CWA. In Iowa League of Cities F.3d 453, 47 ELR 20031 (D.C. Cir. 2017) (No. 17-334).
v. EPA,148 the Eighth Circuit vacated an EPA policy (the 152. Petition for Review at 2, Ctr. for Regulatory Reasonableness v. EPA, 849 F.3d
“blending rule”) which interpreted the statutory term “sec- 453 (D.C. Cir. 2017) (No. 17-334). In its reply brief, EPA vigorously disputes
that the April and June letters constituted any such decision, but instead sim-
ondary treatment” of wastewater to include only biologi- ply shared “certain incomplete and interlocutory views regarding Iowa League’s
cal treatment rather than treatment through physical and impact or non-impact on [existing regulations].” Brief for Respondent at 17–
18, Ctr. for Regulatory Reasonableness, 849 F.3d 453 (D.C. Cir. 2017) (No.
14-1150).
153. Brief for Petitioner at 50–52, Ctr. for Regulatory Reasonableness, 849 F.3d 453
141. Id. at 4–5. (D.C. Cir. 2017) (No. 14-1150).
142. Id. at 4. 154. Id. at 52–53.
143. Id. at 5, 14. 155. Id. at 46–50.
144. Id. at 18. 156. 33 U.S.C. § 1369(b)(1)(E) (2012).
145. Id. at 14. 157. See Brief for Petitioner at 47–48, Ctr. for Regulatory Reasonableness, 849 F.3d
146. Id. at 18. 453 (D.C. Cir. 2017) (No.14-1150); Brief for Respondent at 40, Ctr. for Regu-
147. See supra Part III. latory Reasonableness, 849 F.3d 453 (D.C. Cir. 2017) (No.14-1150) (providing
148. 711 F.3d 844, 43 ELR 20069 (8th Cir. 2013). the helpful example:“[A] petition for review originally filed in the [U.S. Court
the lottery-winning circuit’s decision has binding effect on all Court make better case selections.166 Additionally, intercir-
other circuits.158 However, the Center argued that although cuit dialogue produces better court opinions by allowing
there was only one petition for review in Iowa League of reviewing courts to draw upon the arguments made by past
Cities—rendering the consolidation provision of 28 U.S.C. circuits.167 Finally, if EPA were to always acquiesce with the
§ 2112(a) inapplicable—the Eighth Circuit’s decision should first adverse decision on a particular question, other circuits
still have binding national effect.159 would have few opportunities to review the Agency’s origi-
Unfortunately, the court’s decision in the case neither nal policy, effectively stalling the development of environ-
addressed nor resolved the nonacquiescence question. In a mental law.
succinct four-page opinion, the circuit panel dismissed the As EPA acknowledged in the Regional Consistency
petition for review for lack of jurisdiction.160 The April and Regulations,168 intercircuit nonacquiescence comes with a
June letters did not constitute a “promulgation” of an efflu- significant drawback: inconsistency in the application of fed-
ent limitation needed to grant the court jurisdiction under eral environment law across different circuit jurisdictions.169
33 U.S.C. § 1369(b)(e).161 Rather, they “merely articulat[ed] When EPA applies different legal interpretations to different
how EPA will interpret the Eighth Circuit’s decision.”162 In regions, some industry players gain a competitive advantage
effect, the question of whether the CWA precludes nonacqui- over others based simply on location.170 However, the prob-
escence is still unsettled and open to challenge. lem of regulatory inconsistency is not unique to intercircuit
nonacquiescence, but rather a consequence of the federal
III. Proposed EPA Intercircuit court structure dividing the country into eleven regional cir-
Nonacquiescence Policies cuit jurisdictions.171 Under any alternative—intracircuit non-
acquiescence or nationwide acquiescence—EPA sacrifices
Given EPA’s recent willingness to engage in nonacquiescence, uniform application of the law in some respect. For instance,
the Agency should adopt clear intercircuit nonacquiescence if EPA were to practice widespread intracircuit nonacquies-
policies under all of its statutes to avoid future litigation and cence, the Agency would achieve horizontal uniformity (con-
confusion over its nonacquiescence authority. Such policies sistent application of the law across circuits) at the expense of
should be modeled on both EPA’s Regional Consistency Reg- vertical uniformity (consistent application of the law across
ulations and the Social Security Administration’s time-tested agency proceedings and the federal judiciary).172 Parties need
nonacquiescence policy163 to minimize regulatory uncer- only find their way to federal court to take advantage of an
tainty, ensure uniform application of the law, and promote
fairness for regulated industries.
166. See supra Section I.A.
A. Best Among Rivals: Intercircuit Nonacquiescence 167. See supra Section I.A. For examples of intercircuit dialogue influencing Su-
preme Court opinions and circuit splits leading to grants of certiorari within
the environmental law context, see generally CTS Corp. v. Waldburger, 134
When seeking to accommodate nonacquiescence into its S. Ct. 2175, 44 ELR 20125 (2014) (granting certiorari to resolve whether
regulatory schemes, EPA should adopt policies favoring CERCLA preempts state statutes of repose for tort suits related to hazard-
intercircuit nonacquiescence.164 The benefits of intercircuit ous waste disposal); United States v. Bestfoods, 524 U.S. 51, 28 ELR 21225
(1998) (granting certiorari to resolve a circuit split “over the extent to which
nonacquiescence are well-established. As discussed in Part I, parent corporations may be held liable under CERCLA”); Meghrig v. KFC
intercircuit nonacquiescence permits each circuit to establish Western, Inc., 516 U.S. 479, 26 ELR 20820 (1996) (granting certiorari to
its own “law of the circuit” and thereby encourages intercir- resolve a circuit split regarding remedies under RCRA). See also supra note 41.
168. Amendments to Regional Consistency Regulations, 81 Fed. Reg. 51102,
cuit dialogue regarding difficult questions of law.165 Circuit 51109 (Aug. 3, 2016) (to be codified at 40 C.F.R. pt. 56).
splits produced by intercircuit dialogue help the Supreme 169. See Richard Alonso & Brittany M. Pemberton, EPA’s Regional Consistency Regs
Tilt the Playing Field, Law 360 (Oct. 28, 2016), https://www.law360.com/ap-
pellate/articles/855702/epa-s-regional-consistency-regs-tilt-the-playing-field;
of Appeals for the] Tenth Circuit but subject to 28 U.S.C. § 2112(a) may not Estreicher & Revesz, supra note 2, at 717 (summarizing a discussion with EPA
be adjudicated there if a different circuit won the lottery.”); see also supra note General Counsel Francis Blake, in which Mr. Blake acknowledged that a “spe-
67 (discussing the lottery process in the context of NLRB orders). cial need to maintain uniformity in the environmental context” discouraged
158. See Brief for Respondent at 40, Ctr. for Regulatory Reasonableness, 849 F.3d 453 nonacquiescence at the Agency); cf. Estreicher & Revesz, supra note 2, at 748
(D.C. Cir. 2017) (No.14-1150); Brief for Petitioner at 1, Ctr. for Regulatory (“[A] central goal of federal regulation is to prevent regions from competing for
Reasonableness, 849 F.3d 453 (D.C. Cir. 2017) (No.14-1150). industry by offering a more favorable economic climate at the expense of other
159. See Brief for Petitioner at 48–49, Ctr. for Regulatory Reasonableness, 849 F.3d societal goals. . . . As long as the conflict among the circuits persists, there will
453 (D.C. Cir. 2017) (No.14-1150). be undesirable regional competition.”). Courts have also recognized that one
160. Ctr. for Regulatory Reasonableness v. EPA, 849 F.3d 453, 454, 47 ELR 20031 of the primary purposes behind federal environmental laws was to establish
(D.C. Cir. 2017). nationally uniform standards. See, e.g., E.I. Dupont de Nemours & Co. v.
161. Id. EPA, 430 U.S. 112, 129, 7 ELR 20191 (1977) (recognizing the establishment
162. Id. of uniform standards as a primary congressional purpose behind amendments
163. 20 C.F.R. § 404.985 (2016) (SSA nonacquiescence policy for Social Security to the Federal Water Pollution Control Act).
Disability Benefits); 20 C.F.R. § 416.1485 (2016) 170. Amendments to Regional Consistency Regulations, 81 Fed. Reg. 51102,
164. Since commenters have generally equated venue-choice nonacquiescence with 51109 (Aug. 3, 2016) (to be codified at 40 C.F.R. pt. 56).
intercircuit nonacquiescence, see supra notes 69–73 and accompanying text, 171. See Amendments to Regional Consistency Regulations, 81 Fed. Reg. at 51108.
this section generally applies to both types of nonacquiescence. However, for (“Some difference in governing rules is inherent in our federal judiciary system
the sake of brevity, this section only uses the term “intercircuit nonacquies- where district and circuit courts are limited to a definitive jurisdiction. The
cence.” For a full discussion of how agency policies may incorporate venue- federal judicial system was designed to allow numerous, and sometimes con-
choice nonacquiescence, see infra Section III.B.2. flicting, decisions . . .”); cf. Estreicher & Revesz, supra note 2, at 741 n. 302.
165. See supra Section I.A. 172. See supra Section II.A.; supra note 57.
adverse circuit decision and a different application of envi- jurisdictions.177 In other words, the Regional Consistency
ronmental law.173 Regulations require the Agency to apply a presumption of
Likewise, nationwide acquiescence also fails to guaran- intercircuit nonacquiescence.178 As explained in the final rule
tee uniformity among the circuits in every situation. For amending the Regional Consistency Regulations, establish-
instance, if two circuits issued conflicting rulings on the ing a presumption of intercircuit nonacquiescence generates
same legal question, EPA would be unable to apply both greater consistency and predictability in Agency nonacquies-
decisions nationwide.174 While EPA could apply the con- cence actions by placing regulated industry on notice of how
flicting rulings within the respective jurisdictions of those the Agency will apply adverse circuit decisions.179
circuits, the Agency could only choose one ruling to apply Admittedly, this approach does not always produce per-
in neutral circuit jurisdictions. The result, therefore, would fect results. Under statutes with broad venue provisions, the
be like the result achieved through intercircuit nonacquies- Agency may not be able to predict with absolute certainty
cence: national application of one policy except for an outly- which court will review its actions and may inadvertently
ing, adverse circuit. face review in a circuit with adverse precedent. Consider
While intercircuit nonacquiescence is not a perfect solu- the prior example of venue-choice nonacquiescence in the
tion for how EPA should handle adverse circuit decisions, context of RCRA.180 Under RCRA, review of permits for
it is the best available solution for balancing the inherent hazardous waste storage facilities may be made by “any inter-
inequities of the federal court structure with the need for ested person” in any circuit where that person “resides or
intercircuit dialogue on important questions of environmen- transacts business.”181 In practice, this means that a particu-
tal law. The following section provides a blueprint of how the lar permit could be reviewed in an adverse and non-adverse
Agency might accommodate intercircuit nonacquiescence in circuit. While the Agency may intend to practice intercircuit
a variety of statutory schemes, and proposes measures that nonacquiescence, to a reviewing adverse circuit, the Agency
the Agency could adopt to mitigate the harmful impacts of will appear to be engaging in intracircuit nonacquiescence.
the practice. Despite this drawback, adopting a presumption of inter-
circuit nonacquiescence is still preferable for statutes with
B. Proposed Features of EPA Nonacquiescence broad venue provisions. First, venue-choice nonacquiescence
Policies constitutes a challenge for the Agency regardless of whether
the Agency adopts any default nonacquiescence policy. Even
EPA should establish nonacquiescence policies that promote without a default response in place, the Agency must still
regulatory consistency, uniformity, and fairness in Agency decide how to apply adverse holdings. Establishing a pre-
responses to adverse circuit decisions. In pursuit of these sumption of intercircuit nonacquiescence simply reduces
goals, the Agency’s nonacquiescence policies should include uncertainty about the Agency’s response to adverse holdings;
three key features. First, any new nonacquiescence policy it does not create the problems associated with venue-choice
should establish default Agency responses to adverse circuit nonacquiescence. Second, if EPA faces review in a circuit
decisions. Under many statutes, this could be expressed as a with adverse precedent, the Agency can avoid the appear-
presumption in favor of intercircuit nonacquiescence much ance of intracircuit nonacquiescence simply by declining to
like that found in the Regional Consistency Regulations.175 re-litigate the issue.182 While the Agency may lose the par-
Second, new nonacquiescence policies should require EPA ticular case, it may be within the Agency’s best interest to
headquarters to issue concurrences to acquiescence determi- avoid flouting circuit court authority.
nations made by regional offices. Finally, EPA nonacquies-
cence policies should provide the Agency the flexibility to 2. Published Headquarters Concurrences
deviate from intercircuit nonacquiescence under certain pro-
scribed circumstances. In addition to establishing a presumption of intercircuit
nonacquiescence, any new agency nonacquiescence policy
1. Presumption of Intercircuit should require regional offices to seek concurrences from
EPA headquarters before applying adverse circuit precedent
Nonacquiescence
to their proceedings. Ideally, the agency would issue require-
First and foremost, every EPA nonacquiescence policy
should establish a default Agency response to adverse circuit
decisions. Generally, the Agency’s responses should resemble
the default response outlined in the Regional Consistency 177. See id. at 51102, 51109.
178. While EPA never uses the term “presumption of inter-circuit nonacquies-
Regulations.176 Under those regulations, the Agency applies cence,” the policy set out in the Regional Consistency Regulations clearly re-
the adverse circuit’s holding within that circuit’s jurisdiction, quires the regional offices to engage in intercircuit nonacquiescence by cabin-
but continues to apply the Agency’s original position in other ing adverse circuit decisions to their respective jurisdictions.
179. Amendments to Regional Consistency Regulations, 81 Fed. Reg. at 51108–09.
180. See supra text accompanying notes 92–94.
173. See supra Section II. B. 181. 42 U.S.C. §§ 6925, 6976(b) (2012).
174. See Amendments to Regional Consistency Regulations, 81 Fed. Reg. at 51104. 182. See generally Estreicher & Revesz, supra note 2, at 717 (noting that the Agency
175. See id. at 51103. has avoided nonacquiescence in the past by simply declining to relitigate indi-
176. See id. at 51102. vidual cases).
ments for these concurrences similar to those under the SSA’s mity. Three rationales support this approach. First, headquar-
current nonacquiescence policy.183 ters offices are typically better positioned than regional offices
In general, when the SSA determines that a circuit court to interpret adverse circuit decisions and tailor the applica-
holding conflicts with the agency’s interpretation of the tion of adverse decisions to national policy goals. Generally,
Social Security Act or agency regulation, the agency will headquarters offices set national Agency policy, and regional
acquiesce to the holding within that circuit at all administra- offices implement and enforce that policy.193 Centralizing
tive levels.184 Before applying the circuit’s holding, however, nonacquiescence determinations at EPA headquarters more
the agency must first publish an Acquiescence Ruling.185 The easily enables the Agency to account for its national policy
Acquiescence Ruling “will describe the administrative case objectives, the political climate in Washington, and circuit
and the court decision, identify the issue(s) involved, and decisions outside of the impacted regions when determining
explain how we will apply the holding, including, as neces- how the Agency will apply adverse holdings.
sary, how the holding relates to other decisions within the Second, published concurrences from headquarters would
applicable circuit.”186 Moreover, Acquiescence Rulings must foster greater uniformity in administration of the law by
be published in the Federal Register within 120 days of the establishing one standard for the application of adverse cir-
adverse circuit decision.187 Likewise, if the agency wants to cuit precedent. Alternatively, under the nonacquiescence
rescind an Acquiescence Ruling, it must publish its decision approach adopted by the Regional Consistency Regulations,
in the Federal Register.188 each regional office would develop its own standard for how
EPA’s new nonacquiescence policies should adopt substan- to apply an adverse circuit holding.194 In circuit jurisdictions
tially similar requirements for headquarters concurrences. such as the Eighth Circuit, which includes states overseen
Like the SSA’s nonacquiescence policy, which authorizes by four different EPA regional offices, this approach invites
local agency officials to apply adverse circuit holdings only regulatory uncertainty and inconsistent application of the
after the agency has issued an Acquiescence Ruling,189 EPA’s law.195 Each regional office may have a slightly different
nonacquiescence policies should require regional offices to understanding of an adverse holding in the Eighth Circuit.
receive a concurrence from the appropriate headquarters Consequently, industries in Minnesota (Region Five) may
office before applying adverse circuit precedent.190 Notably, be subject to different requirements from industries in Iowa
EPA has already informally adopted this structure for past (Region Seven), even though Eighth Circuit precedent gov-
nonacquiescence decisions in both the Summit and Center erns both states. A centrally published concurrence would
for Regulatory Reasonableness cases.191 However, the Agency eliminate this risk by setting out a national interpretation of
broke with this practice in the Regional Consistency Regu- the Eighth Circuit’s holding and by specifying exactly how
lations by allowing regional offices to apply adverse circuit the holding should be applied. Each regional office would
precedent without receiving permission from headquarters. then be bound by the standard set by EPA headquarters,
According to the Agency, headquarters concurrences would assuring uniformity across the Eighth Circuit’s jurisdiction.
only serve as reiterations of the Agency’s default position of Finally, the publication of concurrences from headquar-
intercircuit nonacquiescence.192 ters in the Federal Register would encourage a fair adminis-
Contrary to this perspective, however, concurrences from tration of the law by placing all regulated parties on notice
headquarters modeled on the SSA’s Acquiescence Rulings of changes to Agency policy. Under the procedures adopted
and published in the Federal Register would not function as by the Agency in the Regional Consistency Regulations,
redundancies, but could produce more carefully considered regional offices can immediately begin applying adverse cir-
nonacquiescence decisions and promote regulatory unifor- cuit holdings without any public declaration indicating a
shift in Agency policy.196 This system risks springing unex-
183. See 20 C.F.R. § 404.985 (2016) (SSA nonacquiescence policy for Social Secu-
pected regulatory burdens on less sophisticated regulated
rity Disability Benefits); 20 C.F.R. § 416.1485 (2016) (SSA nonacquiescence entities that do not meticulously track federal circuit deci-
policy for Social Security insurance). Because the SSA’s nonacquiescence policy sions. Meanwhile, more sophisticated entities that do follow
under both programs is identical, only the SSA’s policy for Social Security Dis-
ability Benefits will be cited hereafter.
circuit rulings will be able to take advantage of favorable
184. 20 C.F.R. § 404.985(a). shifts in Agency policy sooner than their less sophisticated
185. 20 C.F.R. § 404.985(b). rivals. While publication of a headquarters concurrence in
186. Id.
187. Id.
the Federal Register does not guarantee that all impacted par-
188. 20 C.F.R. § 404.985(e).
189. See supra note 184.
190. See supra notes 77–80 and accompanying text for a discussion of EPA’s general 193. See 40 C.F.R. § 1.5 (2016). For more information on the division of labor
division of labor between regional and headquarters offices. between offices at EPA headquarters, see 40 C.F.R. §§ 1.21–1.49 (2016) and
191. See Amendments to Regional Consistency Regulations, 81 Fed. Reg. 51102, footnote 79: See Robert Esworthy, Cong. Research Serv., RL34384, Fed-
51110 (Aug. 3, 2016). After the Sixth Circuit’s holding in Summit, the Agen- eral Pollution Control Laws: How Are They Enforced? 8–9 (2014); 40
cy’s nonacquiescence decision was announced through the Summit Directive C.F.R. § 1.61 (2016).
signed by the Director of the Office of Air Quality Planning and Standards. See 194. Amendments to Regional Consistency Regulations, 81 Fed. Reg. at 51111.
Summit Directive, supra note 121 and accompanying text. Likewise, the two 195. See About EPA, U.S. EPA, https://www.epa.gov/aboutepa [https://perma.
letters challenged in Center for Regulatory Reasonableness were both signed by cc/5X4C-D2ZW]; Geographical Boundaries of United States Courts
the Acting Assistant Administrator for the Office of Water. See Petitioner’s Ap- of Appeals and United States District Courts, http://www.uscourts.gov/
pendix at 1–2, Ctr. for Regulatory Reasonableness v. EPA, 849 F.3d 453 (D.C. sites/default/files/u.s._federal_courts_circuit_map_1.pdf (last visited Apr. 9,
Cir. 2017) (No. 17-334). 2017).
192. Amendments to Regional Consistency Regulations, 81 Fed. Reg. at 51111. 196. Cf. Amendments to Regional Consistency Regulations, 81 Fed. Reg. at 51110.
ties will be put on notice of the shift in Agency policy, it at sistency and predictability in Agency nonacquiescence
least makes a public declaration of Agency policy accessible decisions by assuring regulated industries that the Agency
to all interested parties. will not abruptly switch positions. Consider, for instance,
a wastewater treatment plant in the Eighth Circuit seeking
3. Mechanisms for Deviating From Intercircuit to construct secondary treatment facilities after Iowa League
Nonacquiescence of Cities.203 If EPA can rescind nonacquiescence decisions at
will, the plant is less likely to rely on the Agency’s nonacqui-
Notwithstanding the presumption of intercircuit outlined in escence decisions in apprehension of a sudden shift in the
the previous sections, EPA’s nonacquiescence policies should Agency’s regulatory stance. On the other hand, if the Agency
provide the Agency limited flexibility to deviate from inter- can only rescind its decision under proscribed circumstances,
circuit nonacquiescence in two circumstances: (1) when a the treatment plant can more easily rely on the Agency’s non-
regional office requests a concurrence and (2) in a later rescis- acquiescence decision because the Agency cannot abandon
sion of a headquarters concurrence. its former policy without considerable effort.
First, at the concurrence stage, an EPA headquarters office
may have political or policy-based reasons for abandoning Conclusion
the presumption of intercircuit nonacquiescence after an
adverse circuit decision. For instance, if multiple other cir- Both the Regional Consistency Regulations and the recent
cuits have already ruled against the Agency on an issue, a litigation in Center for Regulatory Reasonableness indicate
headquarters office may decide to abandon its position once that nonacquiescence will play a significant role in future
another circuit rules against the Agency. In this scenario, the EPA policy. Although opinions about the direction of EPA
headquarters office could announce its decision to engage in almost always break along partisan lines, nonacquiescence
nationwide acquiescence through a concurrence by following is a uniquely non-partisan issue with non-partisan solutions.
the requirements provided above. Both sides of the aisle have a common interest in preserv-
Second, the Agency should be able to rescind a prior head- ing the federal judicial structure, ensuring the development
quarters concurrence under proscribed circumstances. Here of environmental law in the federal courts, and promoting
again, the SSA’s current nonacquiescence policy may serve regulatory consistency, predictability, and fairness for regu-
as a helpful model. Under SSA regulations, the Agency may lated industries.
only rescind an Acquiescence Ruling under four circum- The proposal outlined above recommends an approach to
stances.197 First, the Agency may rescind an Acquiescence EPA nonacquiescence that balances both the interests of the
Ruling when the Supreme Court overrules or limits a cir- regulated community, and the interests of the Agency and
cuit decision that was the basis for the Ruling.198 Second, federal courts. It is my hope that this Article can serve as a
the Agency may rescind a Ruling when a circuit court over- starting point for all policymakers, liberal and conservative,
rules or limits its past precedent that formed the basis for the in developing EPA’s future nonacquiescence policies. Hope-
Ruling.199 Third, a Ruling may be rescinded when Congress fully, this Article encourages others to research administra-
enacts a law obviating the need for the Ruling.200 Finally, a tive nonacquiescence. Recent nonacquiescence scholarship is
Ruling may be rescinded if the SSA issues new regulations notably lacking, and more scholarship is needed on how both
that make the Ruling obsolete.201 EPA and other agencies might effectively pursue nonacquies-
EPA nonacquiescence policies should adopt similar con- cence.204 The issue of nonacquiescence is neither settled nor
straints on the Agency’s discretion to rescind headquarters fading away, and more work is needed by academics, prac-
concurrences.202 Cabining the Agency’s discretion to over- titioners, and policymakers, to update Agency policies and
turn past nonacquiescence decisions promotes both con- bring our understanding into the 21st century.
197. 20 C.F.R. § 404.985(e) (2016).

198. Id.
199. Id.
200. Id.
201. Id.
202. In keeping with general agency practice giving greater weight to D.C. Circuit
decisions, see Estreicher & Revesz supra note 2, at 716, EPA nonacquiescence 203. 711 F.3d 844, 43 ELR 20069 (8th Cir. 2013). See supra Section II.B.2.
policies should also permit the Agency to rescind a headquarters concurrence 204. See supra notes 15–20 and accompanying text discussing lack of recent nonac-
when a D.C. Circuit ruling conflicts with the concurrence. quiescence scholarship.

The Public Trust Doctrine:
A Brief (and True) History
James L. Huffman*
I
n an era of fake news and personal truths, history is in the some of the Justinian references made by participants in this
eye of the beholder. One needs only declare it so, and so conference.2 Prof. Nicholas Robinson: “The Roman ‘public
it is. Context no longer matters. People and perceptions trust doctrine’ derives from Justinian’s Institutes . . . .”3 Prof.
of the past are discounted, even condemned, in service to Erin Ryan: “The public trust doctrine is among the oldest
modern sensibilities and ambitions. Present-day values and doctrines of the common law, with roots in the Justinian
objectives require the retelling of history—confirmed not by Code of ancient Rome, where it was called the jus publicum.”4
careful research and respect for the words and deeds of those Prof. Mary Christina Wood: “The essential public rights that
whose history we recount, but by repetition of our truths infuse the trust were expressed in Roman times in the Insti-
about the past. The ends justify the means. tutes of Justinian . . . .”5 Prof. Bradford Mank: “The public
There are thus two histories of the public trust doctrine. trust doctrine has its roots in ancient Roman law and per-
One founded in Anglo-American custom and case law. haps even earlier. The Institutes of Justinian, which codified
Another founded in the imaginations of now two generations Roman civil law, recognized that certain types of property
of advocates in search of a fail-safe guardian of the environ- were communal property for the benefit of the general pub-
ment. While I am sympathetic to the cause of environmen- lic . . . .”6 Prof. Melissa Scanlan: “One part of the Corpus,
tal protection, I am even more sympathetic to the cause of the Institutes of Justinian, contained the origins of the public
human freedom. Because the latter requires an unwavering trust doctrine.”7 Prof. Alexandra Klass: “In Justinian’s com-
commitment to the rule of law, and because the rule of law pendium of Roman law, he declared as part of natural law
requires respect for legal precedent, I believe it is essential that there were communal rights in the air, running water,
that we get the history right. the sea and the shores of the sea.”8 And finally, Professor
Many years ago, my colleague, Mike Blumm, described Blumm, as a coauthor with Professor Wood: “First surfacing
me as the Darth Vader of the public trust doctrine. I would in Roman law through the Justinian Code, [the public trust]
prefer to be thought of as the Luke Skywalker of the rule . . . became entrenched in American law in the 19th cen-
of law, though having written numerous articles on this tury through the process of statehood.”9 More recently, writ-
theme that are generally referenced as “but see,” if not totally
ignored, probably qualifies me to be called Don Quixote. But 2. This is in reference to the 2018 J.B. & Maurice C. Shapiro Environmental Law
I continue to tilt at this windmill because I find in the work Symposium, “The Public Trust Doctrine in the 21st Century” hosted at The
of those I criticize a deeply ingrained acceptance that legal George Washington University Law School on March 15, 2018.
3. Nicholas A. Robinson, IUCN as Catalyst for a Law of the Biosphere: Acting
argument is finally about precedent rather than policy. Why Globally and Locally, 35 Envtl. L. 249, 280 (2005).
else would they routinely appeal to history in their argu- 4. Erin Ryan, The Public Trust Doctrine, Private Water Allocation, and Mono Lake:
ments for judicial reinvention of the public trust doctrine? The Historic Saga of National Audubon Society v. Superior Court, 45 Envtl. L.
561, 567 (2015).
For example, a Westlaw search on any given day may reveal 5. Mary Christina Wood & Charles W. Woodward, Atmospheric Trust Litigation
upward of 500 articles that reference Justinian in the con- and the Constitutional Right to a Healthy Climate System: Judicial Recognition at
text of the public trust doctrine. Almost always, particular Last, 6 Wash. J. Envtl. L. & Pol’y 634, 649 (2016).
6. Bradford C. Mank, Standing and Future Generations: Does Massachusetts v.
language from Justinian’s Institutes is quoted as an ancient EPA Open Standing for Generations to Come?, 34 Colum. J. Envtl. L. 1, 83
source of the public trust doctrine.1 I confess I have not read (2009).
all 500 articles, but by way of illustration, I will note only 7. Melissa Kwaterski Scanlan, The Evolution of the Public Trust Doctrine and the
Degradation of Trust Resources: Courts, Trustees and Political Power in Wisconsin,
27 Ecology L.Q. 135, 213 n.4 (2000).
* James Huffman is a Professor of Law and Dean Emeritus of Lewis and Clark 8. Alexandra B. Klass, Modern Public Trust Principles: Recognizing Rights and Inte-
grating Standards, 82 Notre Dame L. Rev. 699, 702–03 n.9 (2006).
Law School. 9. Michael C. Blumm & Mary Christina Wood, The Public Trust Doc-
1. See discussion infra. trine in Environmental and Natural Resources Law xxxv (2d ed. 2015).

ing with Aurora Paulsen Moses, Professor Blumm asserted waters ran deep, in other places the waters ran shallow. But
that the public trust doctrine originated in Roman law as the idea of a high public value in water seems to have existed
an antimonopoly notion: “As the Roman Emperor Justin- in most places in some fashion.15
ian explained in a 6th century legal treatise, there are ‘things Yet, both Sax and Wilkinson are frequently relied upon
which are naturally everybody’s . . .’” including “‘air, flow- in the telling of the mythological history of the public
ing water, the sea, and the sea-shore.’ English law adopted trust doctrine.
this Roman law concept in the Magna Carta of 1215, which In a nutshell, the generally accepted history is that from
included a provision promising public uses of navigable and Justinian’s Institutes through Magna Carta, Bracton, Hale,
tidal waters for navigation, commerce, and fishing purposes Blackstone reporting on English law and Chancellor Kent
while restricting private monopolies that would interfere acknowledging the reception of English and Roman law in
with those uses.”10 America, the public has deeply rooted rights in access to and
References to Magna Carta, like Blumm’s in his antimo- use of resources important to the public welfare. Arnold v.
nopoly account of the public trust doctrine, are only slightly Mundy, Martin v. Waddell and Illinois Central Railroad v.
less common than the aforementioned references to Justinian Illinois are cited repeatedly as precedent for present day rec-
as part of the claimed historical provenance for an expansive ognition of a doctrine that will limit the authority of the state
interpretation of the public trust doctrine. As is often the to alienate resources while imposing constraints on govern-
case in the telling of history, the person telling the story has mental and private use of those resources.16
more often relied on the story told by others than on those As this account of history has gained credence through
whose story it is. In the case of scholarly accounts of the his- repetition, the ambitions for the public trust doctrine have
tory of the public trust doctrine, earlier articles by scholars grown. Not only is the doctrine said to constrain the pub-
Joe Sax and Charles Wilkinson are often cited as authority.11 lic and private use of resources, but also that it empowers
Sax is rightly credited with resurrecting the doctrine from the courts to mandate actions by the executive and legisla-
obscurity in a 1970 article in which he, unlike his many aco- tive branches of government, even when those branches have
lytes, recognized the limits of Roman law as precedent for chosen not to act. Emperor Justinian, King John, Henry de
the judicial intervention he was proposing.12 A year later, he Bracton, Chief Justice Matthew Hale, William Blackstone,
wavered on that conclusion, writing that “[l]ong ago there Chancellor James Kent, Chief Justice Roger Taney (author of
developed in the law of the Roman Empire a legal theory Martin v. Waddell’s Lessee) and Justice Stephen Field (author
known as the ‘doctrine of the public trust.’ It was founded of Illinois Central Railroad v. Illinois) would all be in disbelief.
upon the very sensible idea that certain common properties, But not so for our late 20th and early 21st century judi-
such as rivers, the seashore, and the air, were held by the gov- ciary. In a landmark modern public trust case, the Supreme
ernment in trusteeship for the free and unimpeded use of the Court of California, quoting the Institutes of Justinian, wrote
general public.”13 After nine more years, Sax reiterated his that “[f]rom this origin in Roman law, the English common
original position that “neither Roman Law nor the English law evolved the concept of the public trust.”17 The New Jersey
experience with lands underlying tidal waters is the place to Supreme Court cited Justinian in stating that “[t]he genesis
search for the core of the trust idea.”14 Wilkinson also dis- of this principle [public trust] is found in Roman jurispru-
counted the significance of Roman law as precedent for the dence. . . .”18 The Montana Supreme Court has declared that
modern doctrine, rather contending, with classic Wilkinso- “[t]he public trust doctrine is of ancient origin. Its roots trace
nian elegance, that to Roman civil law . . . .”19 The Rhode Island Supreme Court
[t]he real headwaters of the public trust doctrine . . . arise in credited the Greek philosopher Gaius, but also Justinian for
rivulets from all reaches of the basin that holds the societies passing the doctrine on four centuries later.20 The Michigan
of the world These things were articulated in different ways Supreme Court concluded that “[t]his obligation [the public
in different times by different peoples. In some cases, the trust doctrine] traces back to the Roman Emperor Justin-
ian . . . .”21 The Vermont Supreme Court found that “[t]he public
10. Michael C. Blumm & Aurora Paulsen Moses, The Public Trust as an Antimo- trust doctrine is an ancient one, having its roots in the Jus-
nopoly Doctrine, 44 B.C. Envtl. Aff. L. Rev. 1, 6–7 (2017).
11. See Joseph L. Sax, The Public Trust Doctrine in Natural Resources Law: Effec-
tinian Institutes of Roman law.”22 The Washington Supreme
tive Judicial Intervention, 68 Mich. L. Rev. 471, 509–46 (1969); Charles F. Court concluded that “[t]he principle that the public has an
Wilkinson, The Headwaters of the Public Trust: Some Thoughts on the Source and overriding interest in navigable waterways and lands under
Scope of the Traditional Doctrine, 19 Envtl. L. 425 (1989).
12.
them is at least as old as the Code of Justinian, promulgated in
[W]hile it was understood that in certain common properties—such
as the seashore, highways and running water—perpetual use was
dedicated to the public, it has never been clear whether the public 15. Wilkinson, supra note 11, at 431.
had an enforceable right to prevent infringement of those interests. 16. James L. Huffman, Speaking of Inconvenient Truths—A History of the Public
Although the state apparently did protect public uses, no evidence is Trust Doctrine, 18 Duke Envtl. L. & Pol’y F. 1, 1 (2007).
available that public rights could be legally asserted against a recalci- 17. Nat’l Audubon Soc’y v. Superior Court, 658 P.2d 709, 718, 13 ELR 20272
trant government. (Cal. 1983).
Sax, supra note 11, at 475. 18. Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355, 360 (N.J. 1984).
13. Joseph L. Sax, Defending the Environment: A Strategy for Citizen Ac- 19. PPL Mont., LLC v. Montana, 565 U.S. 576, 603 (2012).
tion 163–64 (1971). 20. Champlin’s Realty Assocs., L.P. v. Tillson, 823 A.2d 1162, 1166 (R.I. 2003).
14. Joseph L. Sax, Liberating the Public Trust Doctrine From Its Historical Shackles, 21. Glass v. Goeckel, 703 N.W.2d 58, 63–64 (Mich. 2005).
14 U.C. Davis L. Rev. 185, 186 (1980). 22. State v. Cent. Vt. Ry., Inc., 571 A.2d 1128, 1130 (Vt. 1989).
Summer 2019 THE PUBLIC TRUST DOCTRINE: A BRIEF (AND TRUE) HISTORY 17
Rome in the 5th century A.D.”23 A slightly less confident Iowa part of the seashore . . . .”27 As the ellipses indicate, there is
Supreme Court wrote that “[t]he public trust doctrine is said more to the sentence, though I personally have never seen it
to be traceable to the work of Emperor Justinian.”24 And a very quoted by those claiming the authority of ancient law. What
confident United States District Court in Oregon recently follows immediately after “seashore” is “whilst he abstains
concluded that “[a]pplication of the public trust doctrine to from damaging farms, monuments, [and buildings], which
natural resources predates the United States of America. Its are not in common as the sea is.” So, members of the Roman
roots are in the Institutes of Justinian . . . .”25 public had a right to approach the seashore, but only so long
Embracing the myth of Justinian, Magna Carta, and more as they did not interfere with private property on that sea-
discussed below as today’s truth does serve our purposes bet- shore. And how, we might ask, did portions of the public
ter than the truth of the past. But how does one reconcile seashore become private property? Either by private appropri-
such mythmaking with a lawyer’s and citizen’s commitment ation or alienation by public authorities. Both were allowed
to the rule of law? The rule of law requires adherence to the under Roman law.
law as it is, not as we wish it were. Of course, we can change Description of “the air, running water, [and] the sea” as
the law in accordance with legal process, and the common “things common to mankind” reflected two realities of 3d
law has evolved over time, but we cannot change the law by century Rome: these things were generally abundant relative
rewriting history. That even those who would find a vast sea to demand and were, in their physical nature (“by the law
of public rights in the public trust doctrine feel themselves of nature”), difficult to possess, as compared to land. They
constrained by the rule of law is confirmed by their need were res nullius, meaning things not owned, or res communes,
to rewrite the history of the doctrine. Why else the routine which under Roman law meant essentially the same thing.28
genuflection to Justinian? Thus, they were things that could be appropriated for private
My assignment for this article is to explain the history of use,29 or claimed by governments that could, in turn, grant
the public trust doctrine. But given the pervasive acceptance them to private users. Although Roman philosophers and
of the foregoing account, my challenge is as much to correct even the Emperor Justinian might have aspired to the idea of
the record as it is to recount the actual history of the doc- a public right of access to and passage over the seas, the real-
trine. Because I have examined both the myth and the his- ity of life in the Roman Empire was that “all of the marine
tory of the public trust doctrine at length elsewhere,26 I will and coastal area resources that it was possible for the technol-
offer only a truncated account prefaced by a brief explanation ogy of the Romans to exploit were either in private owner-
of two different claims made in the name of the doctrine. ship or were leased to monopolies . . . .”30 In other words,
One claim is that there are certain resources that by their the fact of free public access to the sea (and air and running
nature require public ownership. When legal title to these water) reflected not a recognized public right under Roman
resources is held by the state (in the generic sense) the claim law, but rather a failure on the part of those who would exer-
is that they cannot be alienated nor used by the state in ways cise their right to appropriate unowned resources (res nullius
not consistent with the claimed public rights. When title to or res communes) to develop means to effectively enforce any
these resources is in private hands, the claim is either that such claims.
their acquisition was contrary to law or that their private use Roman law precluded neither the private appropria-
is restricted by superior public rights. The other claim is that tion of running waters, the sea, or the seashore, nor state
public trust resources, whether in public or private owner- alienation of those resources to private parties. This does
ship, are, by public right, available for particular public uses. not mean that the public had no recourse when their use
In the history that follows, I will demonstrate that neither of those resources for navigation and fishing was obstructed
Roman nor English law support the first claim. I will also by the state or private owners—at least in theory. Roman
demonstrate that although the second claim finds support citizens could seek injunctive relief against obstructions to
in both Roman and English law, it supports only clearly
defined and limited uses—namely navigation and fishing
27. Justinian, The Institutes of Justinian 67 (Thomas Cooper ed. & trans.,
of specific resources of navigable waters and their associated 1841).
submerged lands. 28. Modern advocates of an expansive public trust doctrine will understand res
communes to mean things belonging to the public in a proprietary sense, but
that was not the understanding under Roman law. “[A]ll [of the Roman sourc-
I. Roman Law es] except Celsus use language in the nature of res communes and res nullius—
terms which . . . represent a distinction without a real difference.” Glenn J.
One repeatedly quoted phrase from Justinian’s Institutes MacGrady, The Navigability Concept in the Civil and Common Law: Historical
Development, Current Importance, and Some Doctrines That Don’t Hold Water, 3
serves as the key evidence of a Roman public trust doctrine: Fla. St. U.L. Rev. 511, 533 (1975).
“[t]hings common to mankind by the law of nature, are the 29. “If I drive piles into the sea . . . and if I build an island in the sea, it becomes
air, running water, the sea, and, consequently, the shores of mine at once, because what is the property of no one becomes that of the oc-
cupier.” James L. Huffman, Why Liberating the Public Trust Doctrine Is Bad for
the sea; no man therefore is prohibited from approaching any the Public, 45 Envtl. L. 337, 344 (2015). “If one builds in the sea or on the
seashore, although not on his own land, yet nevertheless he by the jus gentium
23. Caminiti v. Boyle, 732 P.2d 989, 994 (Wash. 1987). makes it his.” MacGrady, supra note 28, at 533 (quoting E. Ware, Roman
24. State v. Sorensen, 436 N.W.2d 358, 361 (Iowa 1989). Water Law (1905) (translating the Digest, a 50-volume codification of legal
25. Juliana v. United States, 217 F. Supp. 3d 1224, 1253, 46 ELR 20072 (D. Or. writings by Roman jurists)).
2016). 30. Patrick Deveney, Title, Jus Publicum, and the Public Trust: An Historical Analy-
26. Huffman, supra note 16, at 14. sis, 1 Sea Grant L.J. 13, 33 (1976).
navigation, docking, and shoreline footpaths; blocking or interest—or vice versa.36 Applied to the modern state, such a
diversion of waters whether or not navigation was affected; doctrine of unlimited sovereign authority in the ruler would
and interferences with watering cattle at the shore and could mean either that the state can alienate nothing or alienate
seek restitution for injuries suffered from the building of a everything. The fact that virtually every private property in
pier or breakwater.31 Although there is reason to question the western United States was acquired directly or indirectly
whether these remedies were meaningfully available to the from the national government confirms that the former is
general public,32 these examples from the Digests do have not the case. And certainly, the latter is not the rule aspired
parallels in the common law. It is possible that the common- to by advocates for an expansive public trust.
law rules emerged with knowledge of Roman law.33 But it is English law would eventually provide better precedent for
far more likely, given the role of custom in early English law, those who would distinguish between the private and public
that they arose from the same practicalities that created the roles of the ruler, but there is a difficulty in relying on jus
Roman rules—similar to the practicalities that led English publicum constraints on a crown that derives its authority
and American courts to adopt a rule of capture for acquisi- from God as precedent for similar limits on governments
tion of title to fish and wild animals. that derive their authority from the people. In a government
What is not in doubt, however, is that Roman law allowed founded on popular sovereignty, the jus publicum is defined
for private appropriation of the sea, running waters, and the by the people and cannot, therefore, be a limit on the exer-
seashore, and for alienation of those resources by the state cise of their sovereign powers. Not to mention the irony of
where it had previously claimed title. While private title appealing to the laws of states in which the Emperor or King
to such resources could be difficult to define and enforce could do no wrong.
because of their physical characteristics, neither those
characteristics nor the perceived public importance of the II. English Law
resources dictated public title. Under Roman law, “things
common to all” were those things available for taking and If not Roman law, then surely English law can supply a dis-
conversion to private property, not things that could only be tinguished and ancient pedigree to an expansive 21st century
held in common. Thus, there is no precedent in Roman law public trust doctrine. English law was the law of the English
for the modern claim that the public trust doctrine precludes colonies in North America and it was retained by the various
alienation of natural resources owned by the state. Perhaps states after independence.37
the most convincing evidence of this legal reality is the fact As with many assertions of right under modern American
that Roman law recognized and protected private property law, the public rights of the public trust doctrine are often
in the sea and seashore, whether acquired by appropriation said to derive from the Magna Carta, notwithstanding that
or grant from the state. If anything, Roman law may have it was largely an agreement by the King to respect the rights
served as precedent for the longstanding English and Ameri- of his barons.38 Two chapters serve as precedent for the pub-
can recognition of private title in those same so-called public lic trust doctrine. Chapter 16 provides: “No riverbanks shall
trust resources. be placed in defense from henceforth except such as were so
Another difficulty for those who rely on Roman law as placed in the time of King Henry, our grandfather, by the
precedent for modern public trust claims is that Roman same places and the same bounds as they were wont to be
law made no distinction, until near the end of the Empire, in his time.”39 According to Matthew Hale, this provision
between a public and a personal status of the emperor.34 was a reaction to the King having placed “as well fresh as salt
That is, the emperor did not exercise sovereignty over some rivers [in defense] for [the Kings’ recreation]; that is, to bar
things on behalf of the public (jus publicum) and control of fishing and fowling in a river till [sic] the King had taken his
other things in a proprietary capacity (jus privatum).35 The pleasure or advantage of the writ or precept de defensione
private interests of the ruler were, by definition, the public ripariae . . . .”40 Not until the 19th century would this pro-
vision be understood as a limit on the King’s authority to
grant exclusive fisheries.41 Rather, the objection to the writ
31. See Huffman, supra note 16, at 15.
32. According to Patrick Deveney, “[t]he actual effect of these injunctions was 36. Id.
negligible. . . . They were granted ex parte and without investigation into the 37. See generally William B. Stoebuck, Reception of English Common Law in the
actual situation; consequently, the interdicts were phrased hypothetically and American Colonies, 10 Wm. & Mary L. Rev. 393 (1968).
amounted to no more than a mere statement of the rule the praetor recog- 38. For an account of how Magna Carta “was reinvented as a potent symbol of
nized . . . .” Deveney, supra note 30, at 24. liberty and justice,” see Alex Lock, Radicalism and Suffrage, Brit. Libr. (Mar.
33. Bracton is generally credited with introducing aspects of Roman law to the 13, 2015), https://www.bl.uk/magna-carta/articles/radicalism-and-suffrage
English common law in his 13th century De Legibus et Consuetudinibus Angli- [https://perma.cc/8EDL-ZCGL].
ae. With regard to Roman law influences on English law as a consequence of 39. The quoted language is from the 1225 version of Magna Carta. It was derived
Bracton’s many references to Roman law, Sir William Holdsworth observed: from Chapter 47 of the 1215 version that provided: “All forests that have been
“No doubt there is a body of thoroughly English rules; and Bracton differs made such in our time shall forthwith be disafforsted; and a similar course shall
at very many points from the Roman texts. But it is clear that he has used be followed with regard to river banks that have been placed ‘in defense’ by us
Roman terms, Roman maxims, and Roman doctrines to construct upon na- in our time.” Magna Carta Chapter 16, art. 20 (Eng. 1225).
tive foundations a reasonable system out of comparatively meager authorities.” 40. Matthew Hale, A Treatise De Jure Maris et Brachiorum Ejusdem (1670),
William S. Holdsworth, 2 A History of English Law 286 (3d ed. 1923) reprinted in Stuart A. Moore, A History of the Foreshore and the Law
(emphasis added). Relating Thereto 370, 373 (1888).
34. See Deveney, supra note 30, at 17. 41. See generally Gann v. Free Fishers (1865) 11 HL 1305 (Eng.), Malcomson v.
35. Id. O’Dea (1863) 11 HL 1155 at 1155–56 (Eng.). Prior to that, Magna Carta
de defensione ripariae at the time of Magna Carta was that law, five centuries would pass before an English court would
it required the riparian owner to repair, at his own expense, rule that the Crown could not grant exclusive fisheries to pri-
roads and bridges in preparation for the King’s fishing expe- vate parties.47 By then, however, most of the valuable fisheries
ditions.42 Chapter 16 protected the landed barons from lia- had already been granted. In an unreported case decided in
bility for expenditures in support of the King’s pleasures, but 1632, an English court held that submerged and tidal lands
not a public right to fish or navigate on the streams and rivers were presumed to remain with the King unless expressly
of the realm. granted.48 Although not cited by another English court for
Chapter 23 provides: “All kydells [fish weirs] for the 163 years,49 nor relied upon by a jury for another nearly a
future, shall be quite removed out of the Thames and the centuryafter that,50 this so-called prima facie rule is often ref-
Medway, and through all England, excepting upon the sea erenced today as precedent for presumptive state title to sub-
coast.”43 The provision has been relied upon by later writers merged and tidal lands with the suggestion that the rule is
and some courts as precedent for prohibitions on obstruc- founded on a public right in those lands. While presumptive
tions to navigation, but its purpose at the time was to prevent state title to submerged and tidal lands is understood today
the King from blocking fish passage to the private fisheries of as recognition of the importance of such lands to the public,
upstream barons. While Chapter 23 is sometimes referenced the English rule is hardly convincing precedent since it was
as a foundational precedent for a public right of navigation, invented to support the King’s claim to lands long in pri-
it was actually relied upon by Lord Hale as proof that private vate use and possession, but without proof of Crown grant.
ownership of submerged lands was allowed.44 And whatever its nefarious English roots, the prima facie rule
The conflicts sought to be resolved by Magna Carta recognizes the validity of express government grants of sub-
reflected preexisting understandings of rights in the resources merged lands.51
at issue. It was generally accepted that from the Norman
Conquest, the Crown held title to all lands and waters. It III. Early American Law
was also understood that private parties could acquire title
by crown grant. In dispute were which lands and waters had On most questions of English law, 19th century American
been granted and what rights were reserved in the Crown. courts and commentators looked first to William Black-
In fact, many private holdings had been acquired by appro- stone’s Commentaries on the Laws of England. But on the
priation of unoccupied lands, so there was no small dose of law of the sea, their primary source was Lord Chief Justice
fiction in the notion that all private rights were by grant from Matthew Hale’s treatise De Jure Maris.52 Consistent with
the Crown.45 But it was the case that “[b]y the reign of King 19th century English law, Hale accepted the prima facie rule
John almost all of the foreshore and the rivers of the king- but was clear that title to submerged lands could be, and in
dom either were still held by the Crown as private property large part had been, acquired for private use.53 In his discus-
or had been granted in fee to individual holders.”46 Magna sion of the law relating to the use of navigable waters, Hale
Carta acknowledged these private claims, but none resem- identified three categories of coastal property: jus privatum,
bling a general public right of access. Indeed, recognizing the proprietary title in individuals or the Crown; jus regium,
the claims of the barons confirmed that the Crown could the royal right or what we would call police power; and jus
neither exclude them from their private lands and waters nor publicum.54 With respect to the latter Hale wrote:
mandate that they provide for the King’s access to his private
[T]he people have a publick [sic] interest, a jus publicum, of
domain, and also that they (the barons) could exclude the
passage and repassage [sic] with their goods by water, and
public from their private lands and fisheries.
must not be obstructed by nuisances or impeached by exac-
Although 13th century jurist Bracton introduced the
tions . . . . [F]or the jus privatum of the owner or propri-
Roman idea of public rights in navigable waters to English
etor is charged with and subject to that jus publicum which
was not seen as an obstacle to the granting of exclusive fisheries, Carter v. belongs to the king’s subjects; as the soil of an highway is,
Murcot (1768) 98 Eng. Rep. 2162, although the private claimant had the
burden of proving the grant, Lord Fitzwalter’s Case (1762) 86 Eng. Rep. 766 47. Carter v. Murcot (1768) 98 Eng. Rep. 2162.
(K.B. 1762). 48. See Attorney General v. Philpott (1632), reported only in Stuart A. Moore,
42. Deveney, supra note 30, at 40. A History of the Foreshore and the Law Relating Thereto 895–907
43. Magna Carta Chapter 23 (Eng. 1225), http://www.bsswebsite.me.uk/Histo- (1888). The case was decided by a corrupt court at the King’s urging and may
ry/MagnaCarta/magnacarta-1225.html. The same language appears in Chap- never have been acted upon.
ter 33 of the 1215 version, available at http://www.bsswebsite.me.uk/History/ 49. See Attorney General v. Richards (1795) 145 Eng. Rep. 980 at 981. Moore,
MagnaCarta/magnacarta-1215.html. supra note 48, at 263.
44. 50. Moore, supra note 48, at 616.
The exception of weares upon the sea-coast[s] . . . make it appear 51. Huffman, supra note 16, at 23–34.
that there might be such private interests not only in point of liberty, 52.
but in point of propriety, on the sea-coast and below the low-water The treatise of Sir Matthew Hale, De Jure Maris, has been so often
mark . . . . But in all of these statutes, though they prohibit the thing, recognized in this country, and in England, that it has become the
yet they do admit, that there may be such an interest lodged in a sub- text book, from which, when properly understood, there seems to be
ject, not only in navigable rivers, but even in the ports of the sea itself no appeal either by sovereign or subject, upon any question relating
contiguous to the shore, though below the low-water mark, whereby a to their respective rights, either in the sea, arms of the sea, or private
subject may not only have a liberty, but also a right of property of soil. streams of water.
Hale, supra note 40, at 389. Ex parte Jennings, 6 Cow. 518 (N.Y. Sup. Ct. 1826).
45. Huffman, supra note 16, at 22–23. 53. Hale, supra note 40, at 327.
46. Deveney, supra note 30, at 39. 54. Id. at 372–74.
which though in point of property it may be a private man’s respect to the ownership of lands, the states, as the new sov-
freehold, yet it is charged with a publick [sic] interest of the ereigns, succeeded to the Crown’s titles including those held
people, which may not be prejudiced or damnified.55 in the name of the former colonies. Because grants previously
made by the crown or by the colonial authorities were gen-
Thus, under English law as understood by 19th century
erally respected, significant portions of the states remained
American courts and commentators, there were three aspects
as private property. As one of the compromises leading to
to coastal property: the land (possessed by individuals, the
the Constitution of 1787, the extensive western land claims
Crown, or the state), the right of navigation over and past the
of several states were ceded to the new federal government,
land (possessed by the public in the form of an easement),
making the United States a large landowner a dozen years
and the power of the state to enforce the public right (the
after the Revolution. With the exception of lands required
royal right or police power). The pervasive fisheries grants
for government facilities and functions, the expectation
in England confirmed that there was no public right to fish
with respect to both state and federal lands was that they
unless granted by the landowner.56 The pervasive private
would, in due course, be conveyed or transferred to private
ownership of submerged and riparian lands confirmed that
owners. Conforming with the retained English common
there was no prohibition on crown or state alienation of the
law, submerged lands on non-navigable waters were owned
land, although the public right to navigate would be unaf-
by the riparian owner to the thread of the stream or river,59
fected. Neither Hale nor Blackstone mention a public trust
and submerged lands on navigable waters were owned by the
doctrine, but by the time of American independence, English
state unless previously granted to a private party.60 Lord Hale
law (and thus the law of the American colonies) recognized a
summarized the English rule as follows:
public right to navigate on navigable (defined as tidal) waters
and a public right to fish in waters where no exclusive fishery In case of private rivers, the lords having the soil is good
had been retained by the crown or granted to individuals. evidence to prove he hath the right of fishing, and it puts
With American independence, sovereignty shifted from the proof on them who claim liberam piscariam. But in case
the Crown to the state governments. Several questions rel- of a river that flows and reflows prima facie it is common to
evant to the public trust doctrine had to be resolved as a all. If any claim it to himself, the proof lieth on his side; and
consequence of there being a new sovereign: First, what laws it is a good justification to say, the locus in quo is a branch
apply? Second, who owns what, and particularly, who has of the sea, and that the subjects of the king are entitled to a
title to submerged and riparian lands? Lastly, what rights free fishery.61
does the public, the true sovereign, possess?
Thus, where ownership of submerged lands beneath navi-
With respect to the laws under which government is orga-
gable waters was in doubt, retained English law invoked the
nized, the change was revolutionary. The states each enacted
prima facie rule—absent evidence of prior grant or user, the
constitutions to replace the unwritten constitution under
state is the presumptive owner. But American courts came
which the Crown and parliament exercised sovereignty. With
to view the prima facie rule not as one of evidence, as it was
respect to the powers of the sovereign, there was little change
in England, but as a rule of title. This seemingly subtle shift
in terms of the scope of powers, but revolutionary change in
from the English precedents contributed to modern confu-
the inclusion of written bills of rights constraining the exer-
sion about the relationship between state ownership of sub-
cise of those powers.57 By way of confirming that the com-
merged lands and the public trust doctrine. Under English
mon law of England would remain the law, the new states
law, the evidentiary presumption of state ownership reflected
enacted laws confirming the “reception” of English common
that original title was understood to be in the Crown, mean-
law, subject, of course, to changes made by the newly sover-
ing that any private claims would require proof of subsequent
eign state legislatures.
legal acquisition. As a rule of title, the presumption of state
Among the received English law principles was that every-
ownership was easily understood to derive from the public’s
thing is owned, either by government or privately.58 With
navigation and fishing rights, notwithstanding that the exer-
55. Id. at 404–05.
cise of those rights was in no way dependent on state owner-
56. ship as confirmed by Lord Hale62 and as evidenced by the
But though the king is the owner of this great wast [the sea], and as a many 19th and 20th century grants of submerged lands for
consequent of his propriety hath the primary right of fishing in the sea
and the creeks and arms thereof; yet the common people of England
have regularly a liberty of fishing in the sea or creeks or arms thereof, capable of ownership, leaving as little as may be in common, to be the
as a publick [sic] common of piscary, and may not without injury to source of contention and strife.”
their right be restrained of it, unless such places or creeks or navigable Huffman, supra note 16, at 28 (quoting Browne v. Kennedy, 5 H. & J. 195,
rivers, where either the king or some particular subject hath gained a 208 (Md. 1821) (Earle, J., dissenting)).
propriety exclusive of that common liberty. 59. “[B]y the rules and authorities of the common law, every river where the sea
Id. at 377. does not ebb and flow, was an inland river not navigable, and belonged to the
57. Many in the founding generation would have said that their bills of rights were owners of the adjoining soil.” Palmer v. Mulligan, 3 Cai. R. 307, 318 (N.Y.
not revolutionary, but rather the expression of the already existing rights of Sup. Ct. 1805) (Kent, C.J., concurring).
Englishmen that had been abridged in the colonies. Not every state enacted a 60. Ex parte Jennings, 6 Cow. 518 (N.Y. Sup. Ct. 1826).
bill of rights along with their first constitution. 61. Arnold v. Mundy, 6 N.J.L. 1, 60 (N.J. Sup. Ct. 1821) (Rossell, J.).
58. 62.
The principle of universal title in the Crown, combined with the king’s Lord Hale’s tripartite division of rights in the coastal area in no way
power to grant title and the concepts of customary use and prescrip- linked the jus publicum to the king (or the state) having title to the
tion, made it possible “to assign a particular proprietor to every thing submerged or riparian lands. As Hale defined it, the jus publicum is a
private use. Thus, an evidentiary rule invented by the Crown Upon the whole, therefore, I am of opinion, as I was at the
for the purpose of expropriating title from private owners trial, that by the law of nature, which is the only true foun-
unable to prove title beyond long-term use was transformed dation of all the social rights; that by the civil law, which for-
into the notion that public rights of navigation and fishing in merly governed almost the whole civilized world, and which
navigable waters precludes private ownership of submerged is still the foundation of the polity of almost every nation in
lands beneath those waters (and to assert public title to sub- Europe; that by the common law of England, of which our
merged lands long understood to be private property).63 ancestors boasted, and to which it were well if we ourselves
The prima facie rule as a rule of title was applied by Chief paid a more sacred regard; I say I am of opinion, that by all
Justice Andrew Kirkpatrick in Arnold v. Mundy,64 often cited these, the navigable rivers in which the tide ebbs and flows,
as the foundational case of the American public trust doc- the ports, the bays, the coasts of the sea, including both the
trine. The plaintiff claimed the defendant trespassed (and water and the land under the water, for the purpose of pass-
appropriated oysters) on his private oyster beds in the tidal ing and repassing, navigation, fishing, fowling, sustenance,
mud flats of the Rariton River at Perth Amboy in New Jersey. and all the other uses of the water and its products (a few
The claim of title was based on a survey made under New Jer- things excepted) are common to all the citizens, and that
sey law, the plaintiffs having planted and tended the oysters, each has a right to use them according to his necessities,
and a chain of title dating from the twenty-four proprietors subject only to the laws which regulate that use . . . .69
of East New Jersey and the King of England. The defendant Kirkpatrick acknowledged that the legislature, empowered
claimed he had a right shared in common with fellow citi- by the people,
zens to take oysters in the navigable waters of the state. The
issue, wrote Kirkpatrick (who had already ruled on the case may lawfully bank off the water of those rivers, ports, and
at trial), was “[a]s to the right of the proprietors to convey.”65 bays, and reclaim the land upon the shores; they may build
Distinguishing between public and common property, Kirk- dams, locks, and bridges for the improvement of the naviga-
patrick found that under English law the King may not, tion and the ease of passage; they may clear out and improve
“appropriate it to himself, or to the fiscal purposes of the fishing places to increase the product of the fishery; they
nation, the enjoyment of it is a natural right which cannot may create, improve, and enlarge oyster beds, by planting
be infringed or taken away, unless by arbitrary power; and oysters thereon, in order to procure a more ample supply;
that, in theory at least, could not exist in a free government, they may do all this themselves at the public expense, or
such as England has always claimed to be.”66 Thus, the King’s they may authorize others to do it by their own labour, and
grant to the twenty-four proprietors via their predecessors in at their own cost, giving them reasonable tolls, rents, profits,
title did not allow for any private rights to the oyster beds in or exclusive enjoyments.70
question. The fact that such private grants were pervasive in But he dismissed these powers as “nothing more than
England and New Jersey alike only indicated the extent of what is called the jus regium, the right of regulating, improv-
the “usurpation of . . . ancient common rights.”67 ing, and securing for the common benefit of every individual
The original grants on which the Arnold plaintiff based citizen.”71 “[D]ivesting all the citizens of their common right
his claim were made under the full force of English law. But, . . . would be a grievance which never could be long borne by
of course, the case was being heard under New Jersey law, a free people.”72 Kirkpatrick did not address how the powers
which, only a year before Kirkpatrick wrote, was supple- of a democratic sovereign might be different from those of
mented by the New Jersey Legislature with an act authoriz- a King, or how the rights of a free people (public rights as
ing individuals owning lands adjacent to waters “wherein distinct from private rights) can be violated by an act of a
oysters do or will grow” to plant and have the exclusive right legislature elected by those same people.
of harvesting oysters.68 Not only did Kirkpatrick ignore the That question was addressed twenty-one years later in
legislative act, but he proclaimed a theory of public rights Martin v. Waddell’s Lessee,73 albeit by the dissent. On its facts,
that explains why the case remains a favorite of those advo- Martin looked very much like Arnold with one critical differ-
cating an expansive public trust doctrine: ence. Where the defendant in Arnold asserted a public right
to take oysters in tidal mudflats, the defendant in Martin
claimed a private right under grant from the state of New
Jersey.74 Although the dispute in Martin was between two
public right in the nature of an easement whether the land is owned by
the king, by a private party, or by no one.
private claimants, Chief Justice Taney, writing for the major-
Huffman, supra note 16, at 30. ity, relied on Arnold to support a ruling for the defendant.
63. See PPL Montana, LLC v. Montana, 565 U.S. 576 (2012) (in which the state With reference to the plaintiff’s claim, Taney cited two Eng-
of Montana claimed title to lands on which PPL and its predecessors had long
paid property taxes as private owners). For an in-depth analysis of the Supreme
Court’s opinion, see James L. Huffman, PPL Montana v. Montana: A Unani- 69. Arnold, 6 N.J.L. at 76–77 (Kirkpatrick, C.J.).
mous Smackdown of a State Land Grab, 2011−2012 Cato Sup. Ct, Rev. 167 70. Id. at 13.
(2012). 71. Id. at 78.
64. 6 N.J.L. 1, 9 (N.J. Sup. Ct. 1821) (Kirkpatrick, C.J.). 72. Id. at 13 (alterations in original).
65. Id. at 69 (Kirkpatrick, C.J.). 73. 41 U.S. 367, 420 (1842).
66. Id. at 72–73 (Kirkpatrick, C.J.). 74. Id. Defendant’s grant was made pursuant to the Act of November 25, 1824.
67. Id. at 73 (Kirkpatrick, C.J.). 1824 N.J. Laws 28 §§ 3–6 (encouraging and regulating the planting of oysters
68. Act for the Preservation of Clams and Oysters, 1820 N.J. Laws 162 § 9. in the township of Perth Amboy).
lish cases in asserting that “the question must be regarded as and a right of propriety or ownership.”79 The letters of pat-
settled in England, against the right of the king, since Magna ent conveyed both. Taney was also wrong to conclude that
Carta, to make such a grant.”75 It was left to Justice Smith the law governing the letters of patent precluded alienation
Thompson in dissent to observe that “if the king held such of the oyster fishery. The applicable law, noted Thompson,
lands as trustee, for the common benefit of all his subjects, “is, that prima facie a fishery in a navigable river is com-
and inalienable as private property, I am unable to discover, mon, and he who sets up an exclusive right, must show title,
on what ground the state of New Jersey can hold the land either by grant or prescription.”80 The state of New Jersey
discharged of such trust, and can assume to dispose of it to was presumed to have title to submerged lands under navi-
the private and exclusive use of individuals.”76 Thompson’s gable waters but, like the King, could grant exclusive rights
conclusion was that the King, like the state (his successor in in those lands where, in the judgment of the sovereign people
title), did have power to alienate the lands in question, mak- as represented in their legislature, it would serve the public.
ing the dispute over which party held the better title to an Furthermore, Taney’s argument with respect to a public trust
exclusive right in the oyster beds. Ten years later, in a similar was pure dicta given that both parties to the lawsuit asserted
dispute in Den v. Ass’n of New Jersey, Taney would cite Martin an exclusive private right.
in finding for the state’s grantee, but without any mention of It is also noteworthy that eight years after Martin, Arnold
the Crown grant being an infringement on public rights.77 v. Mundy was effectively (though not expressly) reversed by
It may seem puzzling that Martin is frequently cited as the New Jersey Supreme Court in Gough v. Bell.81 The Gough
early American precedent for the public trust doctrine given court observed that the Arnold ruling was in conflict with
that in both Martin and Den the court upheld private claims several legislative acts which authorized the erection of dams,
of right in tidal lands. It is true that in Martin, for the first bridges, piers and docks and the appropriation of oyster beds.
time in a U.S. Supreme Court opinion, the concept of a pub- For the majority, Chief Justice Henry Green cited Massa-
lic trust was raised in the context of navigable waters juris- chusetts Chief Justice Lemuel Shaw, who stated “a navigable
prudence. “The country mentioned in the letters-patent,” stream may cease to be such, by the appropriation of the soil,
wrote Taney, “was held by the king in his public and regal under legislative authority, to other purposes . . .”82; and Chief
character, as the representative of the nation, and in trust for Justice John Marshall, who wrote “[the placing of a dam in a
them.”78 But this use of the term trust could have either of navigable waterway] is an affair between the government of
two meanings. It could mean, as advocates of an expansive Delaware and its citizens . . . .”83 Green concluded that
public trust doctrine would have it, that the lands in ques-
If, by this proposition [no alienation of public trust
tion could not be alienated, or at least were subject to the
resources], it is meant only to assert that a grant of all the
whatever public easements the trust might guarantee. But
waters of the state, to the utter destruction of the rights of
“the country mentioned in the letters-patent” would come
navigation and fishery, would be an insufferable grievance,
to constitute the eastern half of the state of New Jersey, most
it is undoubtedly true . . . . But if it be intended to deny the
of which was long since alienated and in the exclusive con-
power of the legislature, by grant, to limit common rights or
trol (subject to the state’s police power) of private owners. So,
to appropriate lands covered by water to individual enjoy-
Taney’s use of the term trust can only mean that a free people
ment, to the exclusion of the public common rights of navi-
(the sovereign people of New Jersey) have a right to have their
gation or fishery, the position is too broadly stated.84
government rule in service of the public good, including in
the disposition and regulation of navigable waters and sub- New Jersey Chief Justice Green’s reasoning in Gough was
merged lands. The grant of letters of patent conveyed to the supported four decades later by the Supreme Court in Illi-
twenty-four proprietors was first and foremost a delegation of nois Central Railroad v. Illinois (Illinois Central). Although
political authority over the entirety of East New Jersey and the Illinois Central case is routinely cited as the holy grail
by default a grant of title to crown lands within that territory. of expanded American public trust doctrine, the Supreme
Thus, Martin provides little support for modern claims of Court did not rule that the state of Illinois could not alienate
expansive public rights relating to natural resources and the submerged lands, nor did it extend the public trust doctrine
environment. Taney was wrong in concluding that the origi- beyond navigable waters or to public uses other than naviga-
nal grant from the King was either proprietary or sovereign, tion and fishing.85 Five times in his opinion for the major-
but not both. As Thompson noted in dissent (citing Hale), the ity in Illinois Central, Justice Field reiterated that the state
“king of England hath a double right in the sea, viz., a right could alienate submerged and riparian lands unless doing so
of jurisdiction, which he ordinarily exercises by his admiral,
79. Id. at 422 (Thompson, J., dissenting).
75. Martin, 41 U.S. at 410. Neither of the two cases cited by Taney (Blundell v. 80. Id. at 424 (Thompson, J., dissenting).
Catterall, 106 Eng. Rep. 1190, 1197, 1199–1200, 1203, 1205 (K.B. 1821), 81. 22 N.J.L. 441 (N.J. 1850).
and Duke of Somerset v. Fogwell, 108 Eng. Rep. 325, 328–29 (1829)) support 82. Charlestown v. Cty. Comm’rs of Middlesex, 44 Mass. 202, 203 (Mass. 1841).
his conclusion. In Blundell, the defendant acknowledged the plaintiff’s title to 83. Willson v. Back Bird Creek Marsh Co., 27 U.S. 245, 251 (1829).
shore lands and adjacent fisheries, claiming only a right of access and to bathe. 84. Gough, 22 N.J.L. at 459.
In applying the prima facie rule, the Somerset court acknowledge the King’s 85. Nor is Illinois Central a confirmation of a public-spirited action by the Illinois
authority to grant exclusive fisheries. See Huffman, supra note 16, at 46–48. Legislature in revoking its original grant to the railroad. The history of the case
76. Huffman, supra note 16, at 44–45. from beginning to end is one of political self-dealing. See Joseph D. Kearney
77. 56 U.S. 426, 432–33 (1853). & Thomas W. Merrill, The Origins of the American Public Trust Doctrine: What
78. Martin, 41 U.S. at 409. Really Happened in Illinois Central, 71 U. Chi. L. Rev. 799 (2004).
obstructed the public’s rights to navigate and fish in navi- waters was not dependent on the state holding title. Those
gable waters.86 Indeed, he observed that “[t]he interest of the rights existed without regard to ownership of the submerged
people in the navigation of the waters and in commerce over lands and served as a limitation on the use of those lands.
them may be improved in many instances by the erection With respect to the nature and extent of public rights in
of wharves, docks, and piers therein, for which purpose the navigable waters, there was nothing new or revolutionary
state may grant parcels of the submerged lands . . . .”87 Justice in the Illinois Central decision. It supplies no precedent for
Field also stated that the lands in question were “held in trust an expansion of the land or resources to which the doctrine
for the people of the state, that they may enjoy the navigation applies or of the public rights of use of public trust resources.
of the waters, carry on commerce over them, and have liberty But the decision did contribute to a confusion between the
of fishing therein, freed from the obstruction or interference police power and the public trust that has bedeviled public
of private parties.”88 Navigation and fishing—nothing more. trust law over the ensuing 125 years. Citing Arnold, Justice
Illinois Central did confirm one apparent difference Field wrote that “[t]he sovereign power, itself . . . cannot con-
between the American and English public trust doctrines. sistently with the principles of the law of nature and the con-
In both jurisdictions, the doctrine limited the use of lands stitution of a well-ordered society, make a direct and absolute
beneath navigable waters. Due to England having few navi- grant of the waters of the state, divesting all the citizens of
gable waters not affected by the tides, the test for navigability their common right.”89 In dissent, Justice George Shiras
was generally determined by the reach of the tides. Ameri- objected that a grant of state property to Illinois Central in
can courts were quick to recognize that on a continent with no way compromised the sovereign powers of the state.90 As
numerous navigable rivers and lakes, the public’s interest in Shiras explained, the sovereign power of the state is not the
free navigation would not be adequately served if limited to same thing as the public trust. The former are the powers
waters affected by the tides. That is, the purpose of the com- inherent in all governments, though subject to any consti-
mon-law rule would not be served unless navigable waters tutional limits.91 The latter are the rights held in common
were understood to include navigable-in-fact waters, whether by all citizens in the nature of an easement on both private
or not affected by the tides. and public properties.92 Justice Field further confused the
While this application of the public trust doctrine to matter by stating that the state’s title to the submerged lands
navigable-in-fact waters served the purposes of the doctrine, under Lake Michigan “necessarily carries with it control over
it had the effect, given the American understanding of the the waters above them, whenever the lands are subjected to
prima facie rule as one of title, of also establishing state title use.”93 But the state’s responsibility to secure the public’s
to lands beneath those waters. This explains the state of right to navigate and fish in the lake existed whether or not
Illinois’ ownership of the submerged lands off the Chicago the state held title to the lakebed.
waterfront. But the public’s right to navigate and fish in those
IV. 20th Century American Law
86. Ill. Cent. R.R. v. Illinois, 146 U.S. 387 (1892). The five instances where Jus-
tice Field made clear the state could alienate submerged and riparian lands are Since its decision in Illinois Central, the Supreme Court has
as follows:
It is the settled law of this country that the ownership of and do- cited that case in a total of thirty other opinions, twenty-
minion and sovereignty over lands covered by tide waters, within the three of which were rendered in the three decades following
limits of the several states, belong to the respective states . . . with Illinois Central. In almost all of those opinions, the reference
the consequent right to use or dispose of any portion thereof, when
that can be done without substantial impairment of the interest of the to Illinois Central related not to the public trust doctrine,
public in the waters . . . . but rather to disputes over title to submerged lands. Whereas
Id. at 435; state title to lands under both tidal and navigable fresh waters
It is grants of parcels of lands under navigable waters that may afford
foundation for wharves, piers, docks, and other structures in aid of was often attributed to the public’s rights to navigate and
commerce, and grants of parcels which, being occupied, do not sub- fish in the overlying waters, the court consistently recognized
stantially impair the public interest in the land and waters remaining, “the consequent right [of the state] to use or dispose of any
that are chiefly considered and sustained in the adjudged cases as a
valid exercise of legislative power consistently with the trust to the portion thereof, when that can be done without substantial
public upon which such lands are held by the state. impairment of the interest of the public in such water, and
Id. at 452; subject to the paramount right of congress to control their
The control of the state for the purposes of the trust can never be lost,
except as to such parcels as are used in promoting the interests of the navigation so far as may be necessary for the regulation of
public therein, or can be disposed of without any substantial impair- commerce.”94 Under American law, the prima facie rule had
ment of the public interest in the lands and waters remaining. thus come to function as a rule of title, but not a prohibition
Id. at 453;
The state can no more abdicate its trust over property . . . like navigable
waters and soils under them . . . except in the instance of parcels men- 89. Id. at 456.
tioned for the improvement of the navigation and use of the waters, 90. Id. at 467 (Shiras, J., dissenting).
or when parcels can be disposed of without impairment of the public 91. The jus regium in Hale or the police power in modern parlance.
interest in what remains, than it can abdicate its police powers . . . . 92. For Hale, the public rights are the jus publicum and the private rights, whether
Id.; “The trust with which they are held . . . cannot be alienated, except in those held by individuals or by the state, are the jus publicum.
instances mentioned of parcels used in the improvement of the interest held, 93. Ill. Cent. R.R., 146 U.S. at 452.
or when parcels can be disposed of without detriment to the public interest in 94. See, e.g., id. at 435; Morris v. United States, 174 U.S. 196, 236 (1899); Kean
the lands and waters remaining.” Id. at 455–56. v. Calumet Canal & Improvement Co., 190 U.S. 452, 481–82 (1903); United
87. Id. at 452. States v. Chandler-Dunbar Water Power Co., 209 U.S. 447, 451–52 (1908);
88. Id. Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 333, 4 ELR 20094 (1973), over-
on public conveyance of submerged lands. Private ownership trust doctrine. There is a public right to navigate and fish
could derive from pre-Independence grants by the Crown in navigable waters, and thus a restriction on uses of those
or other sovereigns,95 from post-independence grants of ter- waters and their underlying submerged lands that interfere
ritorial lands by the United States,96 from post-independence with the public right. Because public rights belong to the
grants by the states, or from future grants by the states.97 people at large and are distinct from the vested rights of indi-
With a single exception, the handful of post-Illinois Cen- viduals, the legislature, as representatives of the public, may
tral Supreme Court decisions that address the public trust alienate submerged lands and authorize the obstruction of
doctrine offer little to those seeking to liberate the doctrine navigable waters in whatever manner deemed beneficial to
from its historical shackles. In Appleby v. City of New York, the public—so long as they do not violate vested individual
the Court made clear that Illinois Central did not preclude rights. Illinois Central was different (and unusual) in that a
state alienation of submerged lands and that the public trust grant of the entire harbor could not pass muster as consistent
doctrine is one of state, not federal, law. Chief Justice Wil- with the public right.
liam Taft quoted the following from a New York Court of Since Appleby, the Supreme Court has addressed the pub-
Errors opinion: lic trust doctrine in only four cases, all involving issues of
title to submerged lands. In Summa Corp. v. California ex rel.
[T]here can be no doubt of the right of Parliament in Eng-
State Lands Commissions, the court acknowledged in a foot-
land, or the Legislature of this state, to make such grants,
note (citing Illinois Central) that “alienation of the beds of
when they do not interfere with the vested rights of par-
navigable waters will not be lightly inferred,” but recognized
ticular individuals. The right to navigate the public waters
that “property underlying navigable waters can be conveyed
of the state and to fish therein, and the right to use the pub-
in recognition of ‘international duty.’”99 In Phillips Petroleum
lic highways, are all public rights belonging to the people
v. Mississippi, the court ruled that notwithstanding Phillips
at large. They are not the private unalienable rights of each
Petroleum’s recorded titles, years of property tax payments
individual. Hence the Legislature as the representatives of
and a chain of title dating back over 150 years to Spanish land
the public may restrict and regulate the exercise of those
grants, the state of Mississippi had title to disputed tide lands
rights in such manner as may be deemed most beneficial
pursuant to the equal footing doctrine.100 In Idaho v. Coeur
to the public at large: Provided they do not interfere with
d’Alene Tribe of Idaho, the court ruled that the Coeur d’Alene
vested rights which have been granted to individuals.98
Tribe of Idaho was prevented by the Eleventh Amendment
Writing for a unanimous court, Taft would explain that from asserting its claim to title to submerged lands under Lake
a grant of the entire waterfront of Chicago is different from Coeur d’Alene in federal court.101 Justice Anthony Kennedy’s
the grant of submerged lands for the construction of a wharf opinion announcing the 5−4 ruling of the court included an
and other commercial facilities, but his brief quotation from extensive discourse on the public rights in navigable waters.102
the New York court encapsulated the essence of the public Finally, in PPL Montana v. Montana, the Supreme Court
ruled that Montana did not have title to submerged lands
under certain non-navigable stretches of the Missouri River,
ruled on an unrelated holding by Or. ex rel. State Land Bd. v. Corvallis Sand &
Gravel Co., 429 U.S. 363, 7 ELR 20137 (1977).
while again opining on the public trust doctrine.103
95. Summa Corp. v. Cal. ex rel. State Lands Comm’n, 466 U.S. 198, 209, 14 ELR Although all four cases relate to title to submerged lands
20464 (1984). and therefore are not properly understood as public trust
96. In Shively v. Bowlby, the court asserted that “[t]he congress of the United States
. . . has constantly acted upon the theory . . . that the navigable waters and
doctrine cases, the last three contribute, in dicta, to the
the soils under them, whether within or above the ebb and flow of the tide . . . ever-expanding distortions of the history of the doctrine. In
shall not be granted away during the period of territorial government.” Shively Phillips Petroleum, Justice Byron White first ties state title
v. Bowlby, 152 U.S. 1, 49 (1894). But three decades later, the court affirmed
that Congress did not always adhere to the theory:
to the public trust and then abandons navigability as the
[T]he United States early adopted and constantly has adhered to the test for the extent of lands affected with a public trust.104
policy of regarding lands under navigable waters in acquired territory, Because “the states have interests in lands beneath tidal
while under its sole dominion, as held for the ultimate benefit of fu-
ture states, and so has refrained from making any disposal thereof, save
waters which have nothing to do with navigation,” Justice
in exceptional instances when impelled to particular disposals by some
international duty or public exigency. It follows from this that dispos- 99. Summa Corp., 466 U.S. at 207 (citing Montana v. United States, 450 U.S.
als by the United States during the territorial period are not lightly to 544, 552 (1981)).
be inferred, and should not be regarded as intended unless the inten- 100. See Phillips Petroleum v. Mississippi, 484 U.S. 469, 484, 18 ELR 20483
tion was definitely declared or otherwise made very plain. (1988). “There can be no distinction between those states which acquired their
United States v. Holt State Bank, 270 U.S. 49, 55 (1926). independence by force of arms and those which acquired it by the peaceful
97. consent of older states. The Constitution says, the latter must be admitted into
As the king, by his charter, put the colonial government in his place, the union on an equal footing with the rest.” Pollard v. Hagan, 44 U.S. 212,
they held the right in and over the arms of the sea, navigable rivers, 216 (1845).
and the land in the colony, for the benefit of the people of the colony, 101. See Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 27 ELR 21227
as a public trust, not as a private estate; the people of the colony had (1997). Subsequently, the United States sued the state of Idaho in its guardian
the right of fishing, navigating and passing freely in and over the pub- capacity asserting the tribe’s claim to title. In another 5–4 decision, the Su-
lic waters, subject to such grants of franchise or property as might have preme Court ruled that the lands in question had been reserved by the United
been made, or which should be made in future. States for the benefit of the tribe and did not pass to the state of Idaho when it
Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 36 U.S. became a state. See Idaho v. United States, 533 U.S. 262, 281 (2001).
420, 650 (1837). 102. Coeur d’Alene Tribe of Idaho, 521 U.S. at 286.
98. Appleby v. City of New York, 271 U.S. 364, 382 (1926) (quoting Lansing v. 103. See PPL Mont., LLC v. Montana, 565 U.S. 576 (2012).
Smith, 4 Wend. 9 (N.Y. 1829)). 104. Phillips Petroleum, 484 U.S. at 476, 479–80.
White concludes that the state of Mississippi has title to “an essential attribute of sovereignty.”110 He cites Martin v.
the tidelands in question.105 But the existence of state inter- Waddell’s Lessee and Pollard v. Hagan, the latter for the prop-
ests in particular lands, even in navigation over those lands, osition “that States entering the Union after 1789 did so on
does not establish state title to those lands. Both private an ‘equal footing’ with the original States and so have simi-
and public lands can be affected by, or subject to, the pub- lar ownership over these ‘sovereign lands.’”111 “The principle
lic trust. Because American law treated the English prima which underlies the equal footing doctrine and the strong
facie rule as a rule of original state title in submerged lands presumption of state ownership,” writes Kennedy “is that
under navigable waters, it should be expected that the extent navigable waters uniquely implicate sovereign interests.”112
of the public trust would parallel the extent of state title. He goes on to reference Justinian, Bracton, Magna Carta,
But that does not mean that state title necessarily extends Hale, Arnold v. Mundy and Illinois Central in support.113 But
to all lands subject to the public trust, or that all lands to if submerged lands “uniquely implicate sovereign interests”
which the state holds title are subject to the trust. As Justice and state ownership of those lands is “an essential attribute
Sandra Day O’Connor observed in dissent, the seemingly of sovereignty,” Justice Kennedy fails to explain why the
“belated and opportunistic”106 claims of the state of Missis- United States could dispose of those lands during the ter-
sippi “could dispossess thousands of blameless record own- ritorial period when “the intention was definitely declared
ers and leaseholders of land that they and their predecessors or otherwise made very plain.”114 In support of his assertion
in interest reasonably believed was lawfully theirs.”107 that ownership of submerged lands is an essential attribute
Justice O’Connor’s dissent, joined by Justices John Paul of sovereignty Justice Kennedy notes that “[i]n England,
Stevens and Antonin Scalia, in Phillips Petroleum, underscores from the time of Lord Hale, it has been treated as settled
a key reason for environmentalists’ pursuit of an expanded that the title in the soil of the sea, or of arms of the sea,
public trust doctrine. By definition, the public rights guar- below ordinary high water mark, is in the King,” but he fails
anteed by the public trust are senior and therefore superior to explain why the King’s sovereignty was not compromised
to any conflicting claims of private right. For example, the when “an individual or a corporation . . . acquired rights in
private owner of submerged lands has the right to construct it by express grant, or by prescription or usage.”115 Justice
a wharf in a navigable waterway, but not one that obstructs Kennedy did seek to distance the sovereign states from the
navigation. This is so without regard for the date or terms of crown by asserting that “American law, moreover, did not
the private right because the public right is understood to recognize the sovereign’s rights of private property (jus priva-
have existed from time immemorial. No statute, regulation, tum) that existed in England, apart from the public’s rights
deed, or other evidence of the creation of the public right is to this land (jus publicum).”116 But this is simply wrong. The
required. Thus, an expansion of either the geographic extent reality is that states and the United States have disposed of
of the public right or the uses guaranteed by that right will, submerged lands while retaining sovereign jurisdiction over
as Justice O’Connor makes clear, unavoidably dispossess those lands. This makes clear that under American law, like
private rights holders of property they “reasonably believed English law, the state has distinct proprietary and sovereign
was lawfully theirs.”108 Reasonable beliefs with respect to interests in land. While states do have proprietary title to
property rights, or any rights for that matter, are founded submerged lands under navigable waters, claiming that state
on established laws and judicial precedents, not on the ambi- ownership of those lands is essential to state sovereignty is
tions, however estimable, of those who would change the like the assertion in Geer v. Connecticut that the states own
law. That those who advocate for an expanded public trust wildlife.117 In the words of Justice Marshall writing for the
doctrine acknowledge this commitment to the rule of law majority in Douglas v. Seacoast Products, Inc., it is “no more
is underscored by their undying efforts to rewrite the his- than a 19th century legal fiction expressing ‘the importance
tory, and the precedent, of the doctrine. When they succeed, to its people that a State have power to preserve and regulate
as the state of Mississippi did in Phillips Petroleum, private the exploitation of an important resource.’”118 There is much
property is taken for a public use without just compensa- fiction in Justice Kennedy’s historical discourse in Idaho v
tion. In rewriting the history of the public trust doctrine, the Coeur d’Alene Tribe of Idaho.
Phillips Petroleum majority ignored Justice Oliver Wendell Most recently, in PPL Montana v. Montana, Justice Ken-
Holmes’ caution that “[w]e are in danger of forgetting that nedy writing for a unanimous court again genuflected to
a strong public desire to improve the public condition is not the “ancient origin[s]” of the public trust doctrine. But that
enough to warrant achieving the desire by a shorter cut than
the constitutional way of paying for the change.”109
110. Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 283, 27 ELR 21227
In Idaho v. Coeur d’Alene Tribe of Idaho, Justice Kennedy (1997) (quoting Utah Div. of State Lands v. United States, 482 U.S. 193, 195
describes the state’s title to the submerged lands in dispute as (1987)).
111. Id.; Pollard, 44 U.S. at 222.
112. Coeur d’Alene Tribe of Idaho, 521 U.S. at 284.
105. Id. at 476. 113. Id. at 284–85.
106. Id. at 492. The state of Mississippi did not seek to protect the lands at issue 114. Id. (quoting United States v. Holt State Bank, 270 U.S. 49, 55 (1926)).
from environmental degradation. To the contrary, the state sought to benefit 115. Id. at 284 (quoting Shively v. Bowlby, 152 U.S. 1, 13 (1894)).
from the royalties generated from petroleum development of those lands. 116. Id. at 286.
107. Id. at 493. 117. 161 U.S. 519 (1896).
108. Id. 118. 431 U.S. 265, 284, 7 ELR 20442 (1977) (quoting Toomer v. Witsell, 334 U.S.
109. Pa. Coal Co. v. Mahon, 260 U.S. 393, 416 (1922). 385, 402 (1948)).
doctrine, whatever its origins, said Justice Kennedy, was not the sea and the great lakes, the waters over those lands, and
relevant to resolving the title dispute between PPL Montana the waters within rivers and streams of any consequence.”121
and the state of Montana: In terms of the narrow geographic scope of the doctrine as
propounded by state courts before and up to the time of
Unlike the equal-footing doctrine . . . which is the consti-
his 1969 article, Sax’s summary is accurate, although 19th
tutional foundation for the navigability rule of riverbed title
and early 20th century state courts generally described the
. . . the public trust doctrine remains a matter of state law . . .
affected rivers and streams as navigable-in-fact rather than
While equal-footing cases have noted that the State takes title
as “of consequence.”122 Sax’s summary also fails to state that
to the navigable waters and their beds in trust for the public
the public rights of use in those narrowly defined waters were
. . . the contours of that public trust do not depend upon
(as of 1969) similarly narrow—navigation and fishing (with
the Constitution. Under accepted principles of federalism,
a few cases including bathing).123
the States retain residual power to determine the scope of the
But like some of the courts whose decisions he reports, Sax
public trust over waters within their borders, while federal law
conflates the public trust doctrine with the law relating to title
determines riverbed title under the equal-footing doctrine.119
to submerged lands. Indeed, consistent with his ambitions
Despite Justice Kennedy’s recounting of the modern for the doctrine as a tool of judicially enforced “democratiza-
myths of public trust doctrine history in Couer d’Alene Tribe tion” of natural resource policy-making, Sax asserts that the
of Idaho and PPL Montana, the court’s unanimous ruling in public trust doctrine also covers parklands “especially if they
the latter case makes clear that much of what is relied upon as have been donated to the public for specific purposes.”124
Supreme Court public trust precedent is largely dicta. Every Here, again like some of the courts he cites,125 Sax confuses
“public trust” opinion of the Supreme Court is really about the state’s responsibility as a trustee under the law of trusts
title to submerged lands, not the public trust doctrine. The with the public trust doctrine’s limits on state management
court’s repeated reminder that submerged lands are held sub- and disposition of state-owned submerged lands. The pub-
ject to public rights of navigation and fishing is historically lic’s interest in and the states’ authorities and responsibilities
correct. But the existence of those public rights is neither for the management and disposition of the public domain,
contingent on public title to the underlying lands nor the including those arising from trust arrangements, are distinct
basis of public title to those lands. The only historical link from, though not unrelated to, the public’s rights and the
between the law of title to submerged lands and the public states’ responsibilities under the public trust doctrine. The
trust doctrine is that a presumption of the former and the two state cases cited by Sax as foundational do not make this
rationale of the latter is a strong public interest in navigation mistake. In Commonwealth v. Alger, the Massachusetts court
and fishing on navigable waters. did not question the defendant’s title to tidelands while rul-
At this point in the American part of the story, one might ing that the owner is not therefore entitled to obstruct navi-
reasonably ask why, with a few exceptions, the focus has gation.126 In State v. Cleveland and Pittsburgh Railway, the
been on Supreme Court cases. If the public trust doctrine is Ohio court accepted that while a riparian owner was entitled
one of state law, as Justice Kennedy asserts in PPL Montana, to build on state owned submerged lands, he could not there-
shouldn’t we be looking at state court decisions? And if the fore obstruct navigation.127 Both courts recognized that the
public trust doctrine is neither the foundation for state title public rights of navigation and fishing on navigable waters,
to submerged lands nor confined in its application to sub- guaranteed by the public trust doctrine, exist without regard
merged lands owned by the state, why have most of the cases for ownership of the submerged lands.
discussed involved title disputes rather than claims of public
right? It is true that in all the cases discussed, the courts have 121. Sax, supra note 11, at 556.
122. After using this language Sax goes on to say the “[s]ometimes the coverage of
had reference to public trust rights, but from Arnold to PPL the trust depends on a judicial definition of navigability, but that is a rather
Montana the matter in dispute has been title. vague concept which may be so broad as to include all waters which are suit-
able for public recreation.” Id.
123. Tiffany v. Town of Oyster Bay, 234 N.Y. 15, 21 (1922).
V. Meanwhile, in the State Courts 124. Id.
125. Illustrative are Pennsylvania and New York cases in which the state’s trust re-
Only six state court decisions from a total of four states sponsibilities in relation to public parks are said to derive from the public
trust doctrine. In re Estate of Ryerss, 987 A.2d 1231, 1236 n.8 (Pa. Commw.
have been mentioned in the foregoing discussion of Ameri- Ct. 2009) (“[W]hen land has been dedicated and accepted for public use, a
can public trust law.120 There are, of course, many more, political subdivision is estopped from interfering with or revoking the grant at
and what would be clear from reading all of them is that, least so long as the land continues to be used, in good faith, for the purpose
for which it was originally dedicated.”); Friends of Van Cortlandt Park v. City
in the words of Professor Sax, “[public trust law] coverage of New York, 750 N.E.2d 1050, 1053 (N.Y. 2001) (reaffirming “the principle
includes, with some variation among states, that aspect of the that parkland is impressed with a public trust, requiring legislative approval
public domain below the low-water mark on the margin of before it can be alienated or used for an extended period for non-park pur-
poses”). Both opinions relied on early decisions correctly relying on the law of
trusts and not the public trust doctrine. Bd. of Trs. of Phila. Museums v. Trs.
119. PPL Mont., LLC, 565 U.S. at 603–04. of the Univ. of Pa., 96 A. 123, 123–25 (Pa. 1915); Brooklyn Park Comm’rs v.
120. Browne v. Kennedy, 5 H. & J. 195, 208 (Md. 1821); Charlestown v. Cty. Armstrong, 45 N.Y. 234, 243 (N.Y. 1871).
Comm’rs of Middlesex, 44 Mass. 202, 203 (Mass. 1841); Arnold v. Mundy, 6 126. Sax, supra note 11, at 487 (citing Commonwealth v. Alger, 61 Mass. 53, 74–75
N.J.L. 1 (N.J. 1821); Gough v. Bell, 22 N.J.L. 441 (N.J. 1850); Ex parte Jen- (Mass. 1851)).
nings, 6 Cow. 518 (N.Y. 1826); Palmer v. Mulligan, 3 Cal. 307 (N.Y. Sup. Ct. 127. Id. at 487–88 (citing State v. Cleveland & Pittsburgh R.R., 94 Ohio St. 61, 79
1805). (Ohio 1916)).
All of the California and Wisconsin cases Sax offers to utory interpretation, Sax characterized its significance more
illustrate the “contemporary doctrine of the public trust” broadly. He wrote, “[i]t is . . . a judicial response to a situation
involve disputes relating to lands beneath navigable water,128 in which public powers were being used to achieve a most
some over the validity of private claims of title to submerged peculiar purpose.”139 The determinative “peculiar purpose”
lands.129 While many courts have stated in dicta that public identified by Sax and the Gould court was the creation of “a
trust lands cannot be alienated,130 Sax correctly concluded commercial venture for private profit” for which the court
that, “there is no general prohibition against disposition of could “find no express grant . . . of power to permit use of
trust properties, even on a large scale.”131 Illinois Central is public lands.”140
“one of the very few opinions in which an express convey- Such rent seeking is too commonplace to be aptly
ance of trust lands has been held to be beyond the power of described as peculiar; more peculiar is Sax’s description of
the state legislature.”132 Other cited cases do not assess the Gould as a public trust doctrine case. The court’s opinion
validity of private grants but rather involve claims that pri- never mentions the ‘public trust doctrine’ or uses the term
vate uses of submerged lands violate public rights.133 Where ‘public trust.’ Indeed, the word ‘trust’ appears only in ref-
the courts find that public rights guaranteed by the public erence to “any trust agreement issued for the protection
trust doctrine have been infringed, the offending uses are of bondholders” in the financing scheme for the proposed
almost invariably ones that obstruct navigation or fishing in development.141 Even distinguished scholar Joe Sax cannot
navigable waters.134 turn a statutory interpretation case into a public trust case
Although Sax accepted that, with few exceptions, state simply by describing it as “an important case in the develop-
courts limited their application of the public trust doctrine to ment of the public trust doctrine.”142 If trust has anything to
circumstances involving threats to public rights of navigation do with the Gould case, it is the trust that citizens in a demo-
and fishing in tidelands and navigable waters, he began his cratic republic place in those they elect to represent them.
discussion of the contemporary doctrine with a Massachu- The Gould court was surely correct to demand clear evidence
setts case, unrelated to waters of any kind. Sax claimed that that the people’s interests as declared in the legislature were
Gould v. Greylock Reservation Commission135 was “the first served by the Tramway Authority, but such oversight of the
major step in developing the doctrine applicable to changes democratic process has nothing to do with the common-law
in the use of lands dedicated to the public interest.”136 Gould public trust doctrine.
was notable for requiring explicit legislative direction to alter Sax described the Gould opinion as involving “a simple
public land use, but it had nothing to do with the public trust but ingenious flick of the doctrinal wrist,”143 but it is really
doctrine. At issue was a proposal to develop a ski area and Sax who flicks the doctrinal wrist in an effort to create a new
associated commercial facilities within a legislatively estab- future for the public trust doctrine. Although he acknowl-
lished, 9,000-acre Greylock Reserve on Mount Greylock.137 edged “a continued reluctance [by state courts] to recognize
The Massachusetts Supreme Court ruled that the lease and the public trust,”144 he saw in it “a considerable opportunity
management agreement under which the ski area was to for fruitful judicial intervention . . . .”145 “Perhaps the most
be developed exceeded the Tramway Authority’s legislative striking impression produced by a review of public trust cases
grant of authority.138 Though seemingly a simple case of stat- in various jurisdictions,” concluded Sax, “is a striking sense
of openness which the law provides; there is generally sup-
128. Id. at 509–46. port for whatever decision a court might wish to adopt.”146 A
129. See, e.g., Priewe v. Wis. State Land & Improvement Co., 67 N.W. 918, 920
(Wis. 1896) (holding invalid the grant of lake bottom for purpose of draining
decade later, Sax would recognize that, notwithstanding the
and conversion to cropland as not for a public purpose); see also Kimball v. openness he perceived in the case law, courts were not tak-
MacPherson, 46 Cal. 103, 108 (Cal. 1873) (requiring “very explicit provision” ing up the invitation to fruitful intervention.147 The courts,
for grants of shore land between high and low water mark).
130. See, e.g., State v. Cleveland & Pittsburgh R.R., 94 Ohio St. 61, 80 (Ohio 1916)
for the most part, were sticking with the common law as it
(“An individual may abandon his private property, but a public trustee cannot is, rather than as Sax and a growing army of environmental
abandon public property.”); see also Brickell v. Trammell, 77 Fla. 544, 559 (Fla. advocates wished it to be.
1919) (“The trust in which the title to the lands under navigable waters is held
is governmental in its nature and cannot be wholly alienated by the States.”).
131. Sax, supra note 11, at 486. VI. The Public Trust Doctrine After Sax
132. Id. at 489.
133. See In re Trempealeau Drainage Dist. v. Houghton, 131 N.W. 838, 841 (Wis.
1911) (finding that drainage of granted lands did not violate public rights The foregoing is as much about what the history of the public
to hunt and fish); Forestier v. Johnson, 164 Cal. 24 (Cal. 1912) (barring a trust doctrine was not about, than what it was. What the
private grantee of tidelands from excluding the public’s exercise of its public history of the doctrine actually was could be recounted in a
trust rights).
134. See, e.g., City of Milwaukee v. State, 214 N.W. 820 (Wis. 1927) (In approving
a challenged private use of submerged lands, the court distinguished earlier 139. Sax, supra note 11 at 494.
holdings in which “consummation of the scheme would have materially af- 140. Id. (quoting Gould v. Greylock Reservation Comm’n, 350 Mass. 410, 426
fected the rights of the public to the navigable waters of the lakes . . . .”); (1966)).
see also People v. Cal. Fish Co., 138 P. 79, 83 (Cal. 1913) (holding that the 141. Gould, 350 Mass. at 417.
grantee of tidelands takes “the title to the soil . . . subject to the public right 142. Sax, supra note 11 at 556.
of navigation”). 143. Id. at 498.
135. 350 Mass. 410 (Mass. 1966). 144. Id. at 551.
136. Sax, supra note 11, at 492. 145. Id. at 544.
137. Gould, 350 Mass. at 415−16. 146. Id. at 553.
138. Id. at 426. 147. Sax, supra note 14, at 185–86.
much shorter article. But because the history of the doctrine as the Wisconsin court had in Just, that the public trust
has been so often romanticized, if not purposely distorted, doctrine applied to non-navigable tributaries of navigable
and because repetition seems to turn fiction into truth, this waters where the public rights in those navigable waters were
article attempts, once again, to set the record straight. obstructed.152 The next year, the Montana Supreme Court
It might be objected that the history discussed is incom- extended the doctrine’s geographic reach by redefining the
plete—that nearly half a century has passed since the last test for navigability as all waters that can be used for recre-
state case mentioned here was decided, which may be a fair ation.153 This synergetic link between the expansion of the
concern. What is the history of the public trust doctrine geographic reach of the doctrine and the public uses pro-
since Professor Sax invited fruitful judicial intervention and tected had been underscored several years earlier by the Ohio
the breaking of historical shackles? Despite the best efforts of Court of Appeals, which observed “that the modern utiliza-
Sax’s most imaginative acolytes, the geographic scope of the tion of our waters by our citizens requires that our courts, in
public trust doctrine remains, with rare exceptions, confined their judicial interpretation of the navigability of such waters,
to tidelands and lands riparian to and beneath navigable consider their recreational use as well as the more traditional
waters. The public’s rights have remained tied, again with criteria of commercial use.”154
rare exceptions, to navigation, fishing and bathing. Some state courts have followed the lead of those men-
Just about the time Sax published his 1969 article, three tioned above while others have declined to do so. That is the
state courts decided cases that would join the pantheon way of a federal system. But among those state courts that
of progressive public trust decisions. In 1969, the Oregon have embraced the New Jersey Supreme Court’s view that
Supreme Court ruled in State of Oregon ex rel. Thornton v. “[t]he public trust doctrine, like all common law principles,
Hay that, notwithstanding long-vested private title to the dry should not be considered fixed or static, but should be molded
sand beaches on the Oregon coast, there is a public right of and extended to meet changing conditions and needs of the
access to those beaches under the common-law doctrine of public it was created to benefit,” none have broken the his-
custom.148 Although not a public trust case by its own terms, torical shackles of the doctrine in the ways that Professor Sax
it was very much in the spirit of Sax’s call for judicial creativ- envisioned. The doctrine remains firmly linked to water and
ity given that the Oregon court cited only a single American limited to commercial and recreational use of those waters.
case as precedent, and that was a very old case from another State court decisions extending the public trust doctrine
jurisdiction.149 Two years later, the California Supreme Court with respect to either geography or public rights are few and
ruled similarly with respect to the dry sand beaches of its far between. The Just court’s conclusion that the public trust
state. In Marks v. Whitney, the California court relied on the doctrine imposes affirmative duties on the state to regulate
public trust doctrine to describe the public’s right of access as water pollution derives from a not uncommon confusion
of the state’s responsibilities under the public trust doctrine
[p]ublic trust easements . . . traditionally defined in terms of with its authority under the police power. Indeed the Wis-
navigation, commerce and fisheries. They have been held to consin Supreme Court would later correct that error, while
include the right to fish, hunt, bathe, swim, to use for boat- also restoring the traditional definition of navigable waters,
ing and general recreation purposes the navigable waters of ruling in Rock-Koshkonong Lake District v. State Department
the state, and to use the bottom of the navigable waters for of Natural Resources that because the public trust doctrine
anchoring, standing, or other purposes.150 applies only to navigable waters, the regulation of pollution
on uplands had to have been founded on the police power.155
The following year, the Wisconsin Supreme Court ruled In a case widely cited by commentators, the California
in Just v. Marinette County that the public’s rights in the use Court of Appeals stated “that it has long been recognized
of submerged lands extended to privately owned wetlands that wildlife are protected by the public trust doctrine.”156
tributary to navigable waters and imposed “a duty [on the In support of this claim, the court quoted from an article
state] to eradicate the present pollution and to prevent fur- of mine, in which I wrote: “Because wildlife are generally
ther pollution in its navigable waters.”151 While the three transient and not easily confined, through the centuries and
cases expand both the geographic reach of the historic public across societies they have been held to belong to no one and
trust doctrine (to dry sand beaches and non-navigable, but therefore to belong to everyone in common.”157 Contrary
tributary wetlands) and the public rights guaranteed by the to the California court’s conclusion, this did not mean that
doctrine (to general recreation and pollution prevention), the wildlife are subject to the public trust, but rather that wildlife
doctrine remained firmly immersed in water. are res nullius and therefore subject to ownership by capture.
Over the ensuing decades, other state courts embraced Although the English Crown, like many monarchs, often
the limited geographic and public use expansions reflected
in these cases. In 1983, the California Supreme Court ruled, 152. Nat’l Audubon Soc’y v. Superior Court, 658 P.2d 709, 719, 732–33 (Cal.
1983) (stating the public trust encompasses all navigable lakes and streams).
153. Mont. Coal. for Stream Access v. Curran, 210 Mont. 38, 56 (Mont. 1984).
148. 254 Or. 584, 587 (Or. 1969) (finding that the public had acquired an ease- 154. State ex rel. Brown v. Newport Concrete Co., 44 Ohio App. 2d 121, 127
ment to go onto this land for recreational purposes); id. at 598–99 (affirming (Ohio Ct. App. 1975).
the trial court in upholding state custom as a source of law). 155. 350 Wis. 2d 45, 80–81 (Wis. 2013).
149. Id. at 597 (citing Perley v. Langley, 7 N.H. 233 (N.H. 1834)). 156. Ctr. for Biological Diversity, Inc. v. FPL Grp., Inc., 166 Cal. App. 4th 1349,
150. 6 Cal. 3d 251, 259, 2 ELR 20049 (Cal. 1971). 1361 (Cal. Ct. App. 2008) (as modified on denial of reh’g (Oct. 9, 2008)).
151. 56 Wis. 2d 7, 16, 3 ELR 20167 (Wis. 1972). 157. Id. at 1361–62 (quoting Huffman, supra note 16, at 86.).
claimed ownership for themselves, the state’s authority with evokes the public trust doctrine.”165 The objective of those
respect to wildlife in American law has included the regula- who drafted Section 27, he suggested, was for Pennsylvania
tion of capture and the protection of habitat pursuant to the to join “a movement . . . to expand the previously limited
states’ police powers. It is those police power authorities that doctrine to encompass natural resources generally.”166 As of
the California court in Center for Biological Diversity v. FPL last year, Pennsylvania had not done so.
says the state has a duty to perform. Despite the expansive Other states with constitutional guarantees of envi-
public trust language, the court looks to statutes for defini- ronmental rights include Hawaii, Illinois, Massachusetts,
tion of the state’s responsibilities and acknowledges the sepa- Montana, and Rhode Island. Although it has been urged
ration of powers obstacles to actually ordering state agencies that these provisions, like Pennsylvania’s Article I, Section
to take particular actions beyond complying with established 27, constitutionalize the public trust doctrine, the states’
process.158 In a subsequent case, the California Court of courts have not agreed. Article XI of the Illinois Constitu-
Appeals cited Center for Biological Diversity v. Florida Power tion provides that “the duty of each person is to provide and
and Light for the proposition that the Department of Fish maintain a healthful environment for the benefit of this and
and Wildlife must “take its public trust responsibilities into future generations” and empowers private citizens to “enforce
account in providing its review and comment,”159 leading to this right against any party, governmental or private.”167 The
the conclusion in yet another court of appeals case that there Illinois Supreme Court, making no mention of the public
is “no distinction between compliance with the act and the trust doctrine, has ruled that Article XI “does not create any
public trust doctrine.”160 But this reduces the public trust new causes of action, but rather, does away with the ‘special
doctrine as applied to wildlife to nothing more than a sort injury’ requirement typically employed in environmental
of special appeal for exercise of the police power in pursuit of nuisance cases.”168 Article II, Section 3 of the Montana Con-
favored ends. stitution enumerates “certain inalienable rights . . . [includ-
Because reliance on trust-like language in statutes has the ing] ‘the right to a clean and healthful environment . . .’”169
effect of merging the public trust doctrine with the police After stating that “[t]he public trust doctrine in Montana’s
power, advocates of an expanded public trust doctrine have Constitution grants public ownership in water,” the Mon-
also looked to environmental rights amendments in a few tana Supreme Court found unconstitutional provisions of a
state constitutions when raising separation of powers obsta- stream access law that violated the property rights of riparian
cles for the courts.161 In a recent decision, the Pennsylvania landowners, rights also enumerated as inalienable in Article
Supreme Court ruled, however, “that Pennsylvania has no II, Section 3.170 As Justice Jean Turnage remarked in concur-
established public trust principles applicable to Section 27 rence, “it is not . . . necessary to resort to the theory of Public
[the environmental rights amendment to the Pennsylvania Trust Doctrine to find a right to the use of surface waters
Constitution].”162 Rather, the court looked to the law of in this State . . . .” That right, stated Turnage, is recognized
trusts in finding that royalties from state oil and gas leases “in the express language of Article IX, Section 3(3) of the
of “public natural resources,” of which the state is declared Montana Constitution, which provides: ‘All surface, under-
a “trustee” by Section 27,163 must be “used for conservation ground, flood and atmospheric waters within the boundar-
and maintenance purposes” and not deposited in the state’s ies of the state are the property of the state for the use of
general fund. In dissent, Justice Max Baer acknowledged its people and subject to appropriation for beneficial uses as
that “[u]ntil the late 1960s, the . . . [public trust doctrine] provided by law.’”171 Justice Turnage’s point was that, like the
applied primarily to navigable waterways,”164 but he urged controlling statute in the California case above, the public
that “the terminology used by the drafters of Section 27 trust doctrine adds nothing to public and private rights and
responsibilities that derive from other laws.
When asked to find that Article 97172 of the Massachu-
158. setts Constitution imposes public trust duties preventing a
Intervention by the courts [through a separate lawsuit under the pub-
lic trust doctrine], other than by exercising oversight over the admin-
istrative process and ensuring that proper standards are applied, not 165. See id. at 942.
only would threaten duplication of effort and inconsistency of results, 166. See id. at 943.
but would require courts to perform an ongoing regulatory role as 167. Ill. Const., art. XI.
technology evolves and conditions change. 168. See City of Elgin v. Cty. of Cook, 169 Ill. 2d 53, 85 (Ill. 1995); see also Citizens
Ctr. for Biological Diversity, 166 Cal. App. 4th at 1371. Opposing Pollution v. ExxonMobil Coal U.S.A., 962 N.E.2d 956, 967 (Ill.
159. Ctr. for Biological Diversity v. Cal. Dep’t of Forestry & Fire Prot., 232 Cal. 2012).
App. 4th 931, 953 (Cal. Ct. App. 2014). 169. Mont. Const., art. II, § 3.
160. Citizens for E. Shore Parks v. Cal. State Lands Comm’n, 202 Cal. App. 4th 170. See Galt v. State, 731 P.2d 912, 915, 916 (Mont. 1987).
549, 577 (Cal. Ct. App. 2011) (as modified on denial of reh’g (Jan. 27, 2012)). 171. See id. at 916.
161. See, e.g., Montana, Rhode Island, Pennsylvania. 172.
162. Pa. Envtl. Def. Found. v. Commonwealth, 161 A.3d 911, 933 n.26, 47 ELR The people shall have the right to clean air and water, freedom from
20081 (Pa. 2017). excessive and unnecessary noise, and the natural, scenic, historic, and
163. “The people have a right to clean air, pure water, and to the preservation of the esthetic qualities of their environment; and the protection of the peo-
natural, scenic, historic and esthetic values of the environment. Pennsylvania’s ple in their right to the conservation, development and utilization of
public natural resources are the common property of all the people, including the agricultural, mineral, forest, water, air and other natural resources
generations yet to come. As trustee of these resources, the Commonwealth is hereby declared to be a public purpose . . . Lands and easements
shall conserve and maintain them for the benefit of all the people.” Pa. Const. taken or acquired for such purposes shall not be used for other pur-
art. I, § 27. poses or otherwise disposed of except by laws enacted by a two thirds
164. See Pa. Envtl. Def. Found., 161 A.3d at 943. vote, taken by yeas and nays, of each branch of the general court.
local government from conveying property acquired by the through appropriate legal proceedings, subject to reasonable
town as a tax forfeiture, the Massachusetts Land Court relied limitations and regulation as provided by law.
on the Supreme Judicial Court’s earlier ruling that Article
97 only limited alienation of public property “specifically While the Hawaii Supreme Court has held that this provi-
designated for conservation.”173 “The public trust doctrine,” sion is self-executing and therefore a basis for private actions
said the Land Court, “[is] expressed as the government’s obli- to enforce laws intended to protect the environment,177 it
gation to protect the public’s interest in . . . the Common- has effectively precluded linking it to the public trust doc-
wealth’s waterways [sic]. Under the public trust doctrine, the trine’s rights of use in trust resources by allowing that any
Commonwealth holds tidelands [sic] in trust for traditional substantive rights are to be determined by the legislature.178
public uses of fishing, fowling, and navigation.”174 In other The court has also limited private rights of actions to those
words, the Massachusetts public trust doctrine conforms in which the plaintiff has a “personal stake” as distinct from
to the historic common law, unaffected by Article 97. The “general constitutional and statutory rights . . . [held] in
same can be said of Article I, Section 17, of the Rhode Island common with the general public.”179
Constitution.175 “Under the public trust doctrine,” wrote the The court has, however, found that sections 1 and 7 of
Rhode Island Supreme Court in 1999, “the state holds title Article XI import the public trust doctrine into Hawaiian
to all land below the high water mark in a proprietary capac- Constitution law. Section 1 provides:
ity for the benefit of the public.”176 “The state’s authority over For the benefit of present and future generations, the State
that land,” wrote the court, is limited by Article 1, Section 17, and its political subdivisions shall conserve and protect
of the Rhode Island Constitution, which provides that the Hawaii’s natural beauty and all natural resources, includ-
people shall continue to enjoy “‘the privileges of the shore,’ ing land, water, air, minerals and energy sources, and shall
including the right to fish, to swim, and to pass along the promote the development and utilization of these resources
shore.” Thus, by its own terms, “rights . . . to which they [the in a manner consistent with their conservation and in fur-
people] have been heretofore entitled” and as interpreted by therance of the self-sufficiency of the State. All public natu-
the Rhode Island Supreme Court, Article I, Section 17, only ral resources are held in trust by the State for the benefit of
confirms public rights in the use of state waters always held the people.
by the people.
That leaves the Hawaii Constitution as the best hope Section 7 provides:
of those who would rely upon state constitutions for an
expanded public trust doctrine. Article XI, Section 9 of the The State has an obligation to protect, control and regu-
Hawaii Constitution provides: late the use of Hawaii’s water resources for the benefit of
its people. The legislature shall provide for a water resources
Each person has the right to a clean and healthful environ- agency which, as provided by law, shall set overall water
ment, as defined by laws relating to environmental quality, conservation, quality and use polices; define beneficial and
including control of pollution and conservation, protec- reasonable uses; protect ground and surface water resources,
tion and enhancement of natural resources. Any person watersheds and natural stream environments; establish crite-
may enforce this right against any party, public or private, ria for water use priorities while assuring appurtenant rights
and existing correlative and riparian uses and establish pro-
cedures for regulating all uses of Hawaii’s water resources.
Mass Const. art. XCVII; see also Nabhan v. Town of Salisbury, No. 10 MISC
442909(AHS), 2014 WL 1569480, at *4 (Mass. Land Ct. Apr. 17, 2014).
173. See Nabhan v. Town of Salisbury, No. 10 MISC 442909(AHS), 2014 WL In In re Water Use Permit Applications, the Hawaii
1569480, at *4 (Mass. Land Ct. Apr. 17, 2014) (citing Hanson v. Lindsey, 444 Supreme Court held “that Article XI, Section 1 and Article
Mass. 502 (Mass. 2005). XI, Section 7 adopt the public trust doctrine as a fundamen-
174. Id. at 6.
175. tal principle of constitutional law in Hawaii.”180 Given the
The people shall continue to enjoy and freely exercise all the rights facts in the case then before the court, the significance of this
of fishery, and the privileges of the shore, to which they have been holding in terms of the scope of the public trust doctrine in
heretofore entitled under the charter and usages of this state, including
but not limited to fishing from the shore, the gathering of seaweed, Hawaii is unclear. Under existing Hawaii law, Sections 1 and
leaving the shore to swim in the sea and passage along the shore; and 7 were not essential to the court’s ruling. The public trust
they shall be secure in their rights to the use and enjoyment of the doctrine was long recognized181 and its application to trib-
natural resources of the state with due regard for the preservation of
their values; and it shall be the duty of the general assembly to provide
for the conservation of the air, land, water, plant, animal, mineral and 177. Cty. of Haw. v. Ala Loop Homeowners, 235 P.3d 1103, 1129 (Haw. 2010).
other natural resources of the state, and to adopt all means necessary 178. “[Section 9] has both a substantive and a procedural component. First, it rec-
and proper by law to protect the natural environment of the people of ognizes a substantive right ‘to a clean and healthful environment,’ with the
the state by providing adequate resource planning for the control and content of that right to be established not by judicial decisions but rather “as
regulation for the use of the natural resources of the state and for the defined by laws relating to environmental quality.” Second, it provides for the
preservation, regeneration and restoration of the natural environment enforcement of that right by “any person” against “any party, public or private,
of the state. through appropriate legal proceedings, subject to reasonable limitations and
R.I. Const., art. 1, § 17. regulation as provided by law.” Id. at 409.
176. Town of Warren v. Thornton-Whitehouse, 740 A.2d 1255, 1259–60 (R.I. 179. Bremner v. City & Cty. of Honolulu, 96 Haw. 134, 142 (Haw. Ct. App.
1999) (citing Greater Providence Chamber of Commerce v. State, 657 A.2d 2001).
1038, 1041 (R.I. 1995); Nugent ex rel. Collins v. Vallone, 91 R.I. 145, 152, 180. 9 P.3d 409, 443–44 (Haw. 2000).
161 (R.I. 1960); Bailey v. Burges, 11 R.I. 330, 331 (R.I. 1876)). 181. King v. Oahu Ry. & Land Co., 11 Haw. 717, 725 (Haw. 1899).
utary groundwaters was consistent with an earlier supreme and other factors.”187 Taking into account “the constitutional
court ruling, “that where surface water and groundwater can requirements of ‘protection’ and ‘conservation’” but not the
be demonstrated to be physically interrelated as parts of a constitutional requirements of “beneficial and reasonable”
single system, established surface water rights may be pro- use, “the historical and continuing understanding of the
tected against diversions that injure those rights, whether the trust as a guarantee of public rights,” and “the ‘zero-sum’
diversion involves surface water or groundwater.”182 Ground- game between competing water uses demands,” governments
water diversions that impacted public rights in surface waters (and presumably the courts in reviewing what governmental
would be as much a violation of the public trust as diversion actions), should “bring a presumption in favor of public use,
of surface waters with the same effect. In addition to thus access, and enjoyment.”188 In terms more familiar to judicial
expanding the geographic (hydrologic) reach of the public review, the public trust content of Section 7, and presumably
trust doctrine, the Hawaii court expanded the uses to which Section 1, “prescribes a ‘higher level of scrutiny’ for private
the public has a right in public trust waters to include “main- commercial uses . . . .”189 Just to make completely clear that
tenance of waters in their natural state.”183 the balancing inherent in natural resource policy-making
Notwithstanding that the court’s ruling in In re Water Use will rest finally with the courts, the Court notes that because
Permit Application did not stray from the water-bound roots “[t]he public trust . . . is a state constitutional doctrine . . . ,
of the public trust doctrine, the court stated as a holding [a]s with other state constitutional guarantees, the ultimate
“that article XI, Section 1 and Article XI, Section 730 adopt authority to interpret and defend the public trust in Hawai’i
the public trust doctrine as a fundamental principle of con- rests with the courts of this state.”190
stitutional law in Hawaii.”184 While Section 7 speaks only to
water resources, Section 1 addresses Hawaiian governments’ VII. Why Getting the History Right Matters
responsibilities with respect to “natural beauty and all natu-
ral resources, including land, water, air, minerals and energy Over the half century since Professor Sax first urged that
sources.” If the Hawaii public trust doctrine applies to all of the public trust doctrine could be a tool for “effective judi-
that, the liberation of the doctrine from its historical shackles cial intervention,” the doctrine has evolved in directions
will exceed Professor Sax’s wildest dreams. But both Sections Sax would praise. But it has not been transformed into the
1 and 7 complicate the matter by recognizing the legitimacy mighty instrument of environmental reform he envisaged.
of resource use and development. Section 1 requires Hawaii’s Perhaps, that is yet to come. Certainly, there is no short-
governments to “promote the development and utilization of age of advocates for the realization of Sax’s vision. That the
these resources in a manner consistent with their conserva- courts have only occasionally been persuaded to expand the
tion and in furtherance of the self-sufficiency of the State.” doctrine’s historic reach is testimony to the generally strong
Section 7 mandates the creation of a water resources agency commitment of most judges to the rule of law and the separa-
to “set overall water conservation, quality and use policies.” tion of powers.
“The state water resources trust,” noted the court, “thus Proponents of an expanded public trust doctrine and
embodies a dual mandate of (1) protection and (2) maximum those courts that have endorsed expansions over the past sev-
reasonable and beneficial.”185 In a lengthy discourse the court eral decades appear to agree that history matters to the rule
makes a valiant effort to establish, in the absence of any sup- of law. They seem to find it necessary, after all, to reference
porting language in either sections, that mandate 1 (address- Justinian, Magna Carta, Illinois Central, and other prece-
ing protection) trumps mandate 2 (addressing use). dents. Presumably, they recognize that unless one is prepared
That is where reading the public trust doctrine into Sec- to forswear the rule of law and embrace judicial governance,
tions 1 and 7 comes in handy. The court acknowledges that there is really no choice but to rely on historical rules and
making water policy in compliance with Section 7 requires principles. But if the reason for referencing history is to estab-
government to “weigh competing public and private water lish that judicial decisions are based on preexisting law and
uses on a case-by-case basis, according to any appropriate not policy or personal preferences of advocates and judges, it
standards provided by law.”186 This sounds like the sort of is essential that we review the history accurately. Otherwise,
balancing governments must do all the time in making pol- we are only pretending to adhere to the rule of law.
icy, but because this task is constitutionally mandated, gov- As noted above,191 Professor Sax acknowledged in his 1980
ernmental compliance is subject to judicial review. How will article that the historical shackles of the doctrine were con-
a court determine whether a government’s policy decisions straining the achievement of his vision for the public trust
comply with Sections 1 and 7? By “reading the constitution doctrine as an all-purpose tool in environmental litigation.
to establish a ‘rule of reasonableness’ requiring the balancing But he knew that would be a problem from the beginning.
of environmental costs and benefits against economic, social, In his 1970 article, he wrote, “only the most manipulative
of historical readers could extract much binding precedent
187. Id.; see also Save Ourselves, Inc. v. La. Envtl. Control Comm’n, 452 So. 2d
182. Reppun v. Bd. of Water Supply, 65 Haw. 531, 555 (Haw. 1982). 1152, 14 ELR 20790 (La. 1984).
183. In re Water Use Permit Applications, 9 P.3d at 448. 188. Id. at 142.
184. Id. at 132. 189. Id.
185. Id. at 139. 190. Id. at 143.
186. Id. at 142. 191. See discussion supra The Public Trust Doctrine After Sax.
from what happened a few centuries ago in England.”192 Sax Judge Ann Aiken concludes her opinion in Juliana v.
wrote for a second time on the public trust doctrine because United States with the oft-repeated declaration by Chief Jus-
the courts had not taken up his invitation to “effective judi- tice John Marshall in Marbury v. Madison that it is “emphati-
cial intervention” expressed in his 1980 article. Like Professor cally the province and duty of the judicial department to say
Wood’s present-day call for judicial intervention in the name what the law is.”197 But no serious student of American con-
of an imagined “atmospheric trust doctrine,”193 Sax was urg- stitutional law would understand Chief Justice Marshall’s
ing the courts to intervene not because the law required it, statement to mean judges have the power to say what the law
but because the other two branches of government had failed will be. Rather, Chief Justice Marshall’s point, and the basis
to take what he perceived to be necessary actions. for the Supreme Court’s willingness to rule on Marbury’s
Both the rule of law and the constitutional separation of claim, was that when faced with an alleged conflict between
powers dictate against such judicial law making. Defenders legislative action and the Constitution, it is the responsibil-
of judicial expansion of the historic public trust doctrine con- ity of the courts to determine whether or not the challenged
tend that common-law courts have always had authority to action violates the Constitution—ergo, to say what the law
adapt the law to changed circumstances.194 For example, as is. Courts are necessarily confined to examination of authori-
noted above, American courts changed the definition of nav- tative legal sources in determining what the law is—namely
igable waters from waters affected by the tides to waters that constitutions, statutes, legal regulations, and precedent, or in
are navigable-in-fact.195 But that adaptation allowed for the other words, history.
public trust doctrine to serve the same ends on the expansive The best argument proponents of an expanded pub-
North American continent as it served in Great Britain. The lic trust doctrine have is that we face serious environmen-
adapted rule would more likely conform to, rather than con- tal challenges, those challenges have not been adequately
flict with, the reasonable expectations of both owners of sub- addressed by the legislative or executive branches of govern-
merged lands those engaged in commerce and fishing. This ment, and the courts must therefore intervene. Professor Sax
is a far cry from what, for example, the Montana Court did made this argument in his foundational 1969 article, as has
in redefining navigable waters to include those susceptible to Professor Wood in making the case for her atmospheric trust
recreation. By granting access to thousands of miles of water- theory.198 In an article about Juliana, Professor Wood called
ways from which the public previously could be excluded at climate change a threat of “mind-blowing urgency” requir-
the discretion of property owners, the Montana Court upset ing judicial intervention because “[t]he international treaty
the reasonable expectations of those property owners while process will probably fail, the legislature will not act, and
granting welcome, but unexpected, public access. A greater the president will do too little too late.”199 However, in a rule
leap would be a judicial ruling that a public right to be free of law system with constitutional separation of powers, that
from climate change is merely an adaptation of the public argument is not good enough. The history of the public trust
trust right to fish and navigate in navigable waters. doctrine confirms that the public has the right to fish and
It may be true that climate change is the most pressing issue navigate in navigable waters without regard for ownership of
of our time. It is certainly true that the public has a strong the submerged lands. It is not the province and duty of the
interest in the conservation and wise use of the planet’s finite judicial department to rewrite history in the name of estab-
resources. But as Justice Holmes wrote nearly a century ago in lishing new public rights.
Pennsylvania Coal v. Mahon, we cannot forget “that a strong It is the case, as evidenced in the California, Montana, Ore-
public desire to improve the public condition is not enough to gon, and Wisconsin judicial rulings cited above, that judicial
warrant achieving the desire by a shorter cut than the consti- modifications of the traditional common-law public trust doc-
tutional way . . . .”196 The constitutional way, under both the trine become precedent and law on which future courts can and
federal and state constitutions, is for the legislature to make will rely. Indeed, Juliana is part of a nationwide barrage of law-
the law, the executive to implement the law, and the courts suits in search of judges willing to make new law in the name
to adjudicate disputes and enforce the law. All of this is to be of urgency or necessity. If after the appeals are exhausted, new,
done in conformance with due process, at the heart of which is judicially created, public rights become the law of the land, they
allegiance to the rule of law. Neither imagined nor real neces- will have arisen not from the wisdom of Justinian, but from the
sity amends the Constitution or justifies the rule of judges. imaginations of activist judges. The history of the doctrine will
not support such blatant law making, and the rule of law will
192. See Sax, supra note 11, at 485.
have suffered.
193. See, e.g., Wood & Woodward, supra note 5, at 636.
194. “The public trust doctrine, like all common law principles,” opined the New
Jersey Supreme Court, “should not be considered fixed or static, but should be
molded and extended to meet changing conditions and needs of the public it 197. 217 F. Supp. 3d 1224, 1263, 46 ELR 20175 (quoting Marbury v. Madison, 5
was created to benefit.” Borough of Neptune City v. Borough of Avon-by-the- U.S. 137, 177 (1803)).
Sea, 61 N.J. 296, 309, 2 ELR 20519 (N.J. 1972). 198. See Sax, supra note 11.
195. See discussion supra Early American Law. 199. Mary Democker, Natural Law, U. of Or.: Or. Q. (Aug. 1, 2014, 12:00 AM),
196. 260 U.S. 393, 416 (1922). https://around.uoregon.edu/oq/natural-law [https://perma.cc/6AXE-A852].

Atmospheric Trust Litigation:
Foundation for a Constitutional
Right to a Stable Climate System?
Randall S. Abate∗
T
he Anthropocene era has triggered a recent wave of rights-based jurisprudence in U.S. environmental law. The
judicial and legislative developments in the United atmospheric trust litigation theory advanced in the Juliana
States and abroad that seek enhanced government case builds on this public trust doctrine foundation and pro-
stewardship responsibilities of the atmosphere and natural vides an opportunity to develop federal constitutional envi-
resources, and legal protections for future generations. The ronmental rights and responsibilities in the United States.
recent case, Juliana v. United States, attempts to secure these Regardless of the outcome of the Juliana litigation, Juliana
protections for future generations in the United States.1 This will continue to build public awareness and lay a strong con-
promising and hopeful case is attracting national and inter- ceptual foundation for climate justice initiatives in federal
national attention, and has been characterized as “no ordi- and state constitutional and legislative contexts.
nary lawsuit”2 and the “trial of the century.”3 This article Part I of this Article discusses the environmental justice
traces the developments that led to this historic moment in movement and how it served as a platform for climate justice
U.S. environmental law and discusses the opportunity that litigation, which in turn laid a common-law foundation for
this case may present for potential recognition of a constitu- atmospheric trust litigation. Part II examines the evolution
tional right to a stable climate system in the United States. of atmospheric trust litigation (“ATL”) and discusses how
Inherited from English common law, the public trust it represents an ambitious but appropriate expansion of the
doctrine4 is the earliest example of environmental rights- traditional foundations of the public trust doctrine. Part III
based thinking in U.S. environmental law jurisprudence. analyzes how the Juliana case can secure a right to a stable
The concept of government stewardship of resources—and climate system because such a right, like the right to marry,5
corresponding rights of the people to enjoyment and protec- serves as a foundation for the enjoyment of other constitu-
tion of resources—can serve as the foundation for a broader tionally protected rights under the Due Process Clause.
I. Evolution of the Rights-Based Approach

* Randall S. Abate is the Rechnitz Family/Urban Coast Institute
Endowed Chair in Marine and Environmental Law and Policy and to U.S. Environmental Law
a Professor in the Department of Political Science and Sociology at
Environmental law in the United States began as a cru-
Monmouth University in West Long Branch, New Jersey.
sade to protect natural resources. Federal laws mandat-
ing government stewardship of resources in national parks
1. 217 F. Supp. 3d 1224, 46 ELR 20175 (D. Or. 2016). and wilderness area were enacted to protect those resources
2. Id. at 1234 (“This is no ordinary lawsuit.”). See also Michael C. Blumm & for their intrinsic value and to ensure that humans respect
Mary C. Wood, “No Ordinary Lawsuit”: Climate Change, Due Process, and the
Public Trust Doctrine, 67 Am. U. L. Rev. 1 (2017).
and appreciate nature’s splendor in these areas.6 This pres-
3. See Karen Hollweg, Trial of the Century: Juliana v. U.S. Trial Set for October 29, ervationist paradigm shifted with the advent of the federal
2018, N. Am. Ass’n Envtl. Educ. (Apr. 17, 2018), https://naaee.org/eepro/ pollution control laws of the 1970s and their “command-and-
blog/trial-century-juliana-vs-us-climate [https://perma.cc/Y73P-BSSX].
4. The public trust doctrine provides that the tidelands, and the lands beneath
control”7regulation of contamination of air, water, land, and
tidal and navigable waterways, are held in trust by the states for the benefit
of public interests. Barton H. Thompson Jr., The Public Trust Doctrine: A 5. For a discussion of Judge Ann Aiken’s reasoning in which she analogizes the
Conservative Reconstruction & Defense, 15 SE Envtl. L.J. 47, 67 (2006). The right to a stable climate system to the right to marry as comparable founda-
public interests at the foundation of the public trust doctrine were navigational fundamental rights, see infra Part III.
tion, commerce, and fishing, but those interests later expanded to include 6. See, e.g., National Park Service Organic Act, 16 U.S.C. §§ 1-460bbbb-7
other public values. See id. at 67−70 (recreation, environmental protection, (2018); Wilderness Act of 1964, 16 U.S.C. §§ 1131−1136 (2018).
aesthetics); Gerald Torres & Nathan Bellinger, The Public Trust Doctrine: 7. Command-and-control regulation refers to federal or state government regula-
The Law’s DNA, 4 Wake Forest J.L. & Pol’y 281, 297 (2014) (groundwa- tors establishing standards to which the regulated community must adhere
ter, wetlands). such as an emissions limitation or a performance requirement. Government

other human health-based objectives.8 Rather than focusing mental justice movement.12 However, these advocates had
on the intrinsic value of resources, the regulatory imperative just begun to fight. The effort to constitutionalize environ-
to protect the environment shifted in these laws to address mental rights was an important first step in what would be
the ways in which human health had become imperiled from revisited and conveyed in a more compelling manner under
the rise in pollution in the industrial age. the Due Process Clause just 15 years later in the Juliana case.
Until recently, rights-based thinking was confined to the The constitutional foundation was different (Due Process
social justice domain of American jurisprudence, whereas Clause rather than the Equal Protection Clause) and the
environmental law was governed almost exclusively through plaintiffs were different (youth and future generations, rather
“command-and-control” regulation.9 Although the com- than minority and low-income communities), but the under-
mand-and-control regime was highly successful in cleaning lying theory was the same: the U.S. Constitution should be
up the air, water, and land from the scourge of pollution that interpreted to protect environmental human rights through
inspired the enactment of these laws, a glaring gap in these some mechanism and to some degree.13
laws started to surface in the late 1980s. Human health was Just a few years after the disappointing setbacks in 2001,
not being protected in an evenhanded manner in how these environmental justice thinking was embraced to help pro-
laws were enforced and in the degree to which environmen- pel the emerging climate justice movement. Two significant
tal contamination problems manifested in communities developments in this domain were the Inuit petition14 and
throughout the nation. Minority and low-income commu- the Kivalina15 case. The Inuit petition before the Inter-Amer-
nities were bearing a disproportionate share of the environ- ican Commission on Human Rights in 2005 can be credited
mental contamination burden in the United States, and there with establishing the connection between climate change
was no mechanism in these federal environmental laws to impacts and possible human rights violations.16 Alleging a
address that inequity. Environmental protection was devel- broad spectrum of human rights violations—ranging from
oping a human face. The environmental justice movement the concrete (rights to property, health, food, and life) to the
was born.10 more conceptual (rights to culture and rights to self-deter-
Environmental justice litigation ensued, seeking to inject mination)—the Inuit characterized the collective impacts of
a civil rights-based theory throughout the nation by seeking climate change on all of these rights as a deprivation of their
remedies for how contamination burdens were dispropor- collective “right to be cold.”17
tionately burdening minority and low-income communities. Perhaps the most valuable lesson from the environmen-
These early efforts to apply Fourteenth Amendment protec- tal justice movement that continues to be relevant today
tion to these communities ultimately failed in the federal is that the command-and-control approach to environ-
courts,11 resulting in a devastating setback for the environmental problems cannot be the exclusive response to envi-
ronmental degradation. Common-law and constitutional
law theories that address the human rights dimensions of
enforcement actions, as well as citizen suits under several federal environmental environmental problems need to be included as a weapon
laws, can seek to compel compliance with the standards that have been violated in the environmental lawyer’s arsenal. During the peak of
and can seek penalties for the noncompliance. OpenStax, 12.2 Command-and-
Control Regulation, Principles of Economics (2017), https://opentextbc.
the command-and-control era in the 1970s and 1980s, the
ca/principlesofeconomics/chapter/12-2-command-and-control-regulation/ common-law domain was not entirely supplanted; however,
[https://perma.cc/8NSL-5A57]. common-law theories in environmental litigation were used
8. See, e.g., Clean Air Act (CAA), 42 U.S.C. §§ 7401−7671q, ELR Stat. CAA
§§ 101−618 (2018); Clean Water Act (CWA), 33 U.S.C. §§ 1251−1387, ELR
Stat. FWPCA §§ 101−607 (2018); Resource Conservation and Recovery Act that evidence of intentional discrimination is required in private right of action
(RCRA), 42 U.S.C. §§ 6901−6992k, ELR Stat. RCRA §§ 1001−11011 under Title VI).
(2018); Toxic Substances Control Act (TCSA), 15 U.S.C. §§ 2601−2692, 12. See generally John Arthur Laufer, Alexander v. Sandoval and Its Implications for
ELR Stat. TCSA §§ 2−412 (2018). Disparate Impact Regimes, 102 Colum. L. Rev. 1613 (2002); Brendan Cody,
9. Openstax, supra note 7. South Camden Citizens in Action: Siting Decisions, Disparate Impact Discrimina-
10. “Environmental Justice is rooted in several social movements within the United tion, and Section 1983, 29 Ecology L.Q. 231 (2002).
States, including the Civil Rights Movement of the 1950s, 1960s, and 1970s; 13. A possible federal constitutional amendment addressing environmental pro-
the Anti-Toxics Movement; the struggles of indigenous communities; the La- tection has been considered in the United States and has been the subject
bor Movement; and the traditional environmental movement.” Elizabeth Ann of debate for decades. See generally Robin Kundis Craig, Should There Be a
Kronk Warner & Randall S. Abate, International and Domestic Law Dimensions Constitutional Right to a Clean/Healthy Environment?, 34 ELR 11013 (Dec.
of Climate Justice for Arctic Indigenous Peoples, 43 Ottawa L.J. 113, 120−21 2004); J.B. Ruhl, The Metrics of Constitutional Amendments: And Why Proposed
(2013) (internal citations omitted). For a discussion of the background of the Environmental Quality Amendments Don’t Measure Up, 74 Notre Dame L.
environmental justice movement, see generally Robert D. Bullard: Dump- Rev. 245 (1999); Richard O. Brooks, A Constitutional Right to a Healthful
ing in Dixie: Race, Class, and Environmental Quality (3d ed. 2008); Environment, 16 Vt. L. Rev. 1063 (1992).
Luke W. Cole & Sheila R. Foster, From the Ground Up: Environmental 14. Inuit Circumpolar Conference, Petition to the Inter-American Commission on
Racism and the Rise of the Environmental Justice Movement (2001). Human Rights Seeking Relief From Violations Resulting From Global Warming
For a comprehensive evaluation of the legal framework for environmental Caused by Acts and Omissions of the United States, Dec. 7, 2005, http://blogs2.
justice claims, see generally Barry E. Hill, Environmental Justice: Legal law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-
Theory and Practice (4th ed. 2018); Michael B. Gerrard & Sheila R. us-case-documents/2005/20051208_na_petition.pdf.
Foster eds., The Law of Environmental Justice: Theories and Proce- 15. Native Vill. of Kivalina v. ExxonMobil Corp. (Kivalina II), 696 F.3d 849, 42
dures to Address Disproportionate Risks (2d ed. 2009). ELR 20195 (9th Cir. 2012), cert. denied, 133 S. Ct. 2390 (2013).
11. Two cases closed the door on this potential avenue of relief for environmental 16. Petition to the Inter-American Commission, supra note 14.
justice litigants. See Alexander v. Sandoval, 532 U.S. 275 (2001) (holding that 17. See generally Sheila Watt-Cloutier, The Right to Be Cold: One Woman’s
Title VI of the Civil Rights Act does not authorize a private right of action Story of Protecting Her Culture, The Arctic and the Whole Planet
alleging evidence of disparate impact); S. Camden Citizens in Action v. N.J. (2016) (exploring the parallels between the melting Arctic and the loss of the
Dep’t of Envtl. Prot., 274 F.3d 771, 32 ELR 20425 (3d Cir. 2001) (holding Inuit’s culture).
Summer 2019 ATMOSPHERIC TRUST LITIGATION 35
intermittently at best, and in limited circumstances.18 That sea-level rise, more frequent and severe storms, drought, and
approach provided a foundation for a creative combination heatwaves.25 In their complaint, filed in December 2017,
of public nuisance doctrine and the federal common law the plaintiffs sought compensatory and punitive damages,
of interstate pollution in a line of climate change litigation abatement of the nuisance, and disgorgement of profits for
cases in U.S. courts.19 climate change-related injuries from defendants’ production
The Kivalina case was the best opportunity to date for the and promotion of fossil fuel products, concealment of known
climate justice movement to gain traction in the U.S. court hazards of those products, and championing of anti-science
system. A Native Alaskan Village of 400 residents sued the campaigns.26 The plaintiffs relied on several state common-
24 leading multinational oil and energy companies seeking law theories to advance their claims, including public and
to recover the estimated $400 million necessary to relocate private nuisance, strict liability based on design defect and
the village 10 miles inland.20 It was predicted that the village failure to warn, and trespass. One month after the city and
would have to evacuate its existing location due to the threat county of Santa Cruz filed against Chevron Corp., the city of
of inundation from sea-level rise.21 The case was dismissed Richmond, California, also filed suit against Chevron Corp.,
on standing and political question grounds in the U.S. Dis- asserting the same legal theories.27
trict Court for the Northern District of California.22 The This progression of retooling and refining climate justice
U.S. Court of Appeals for the Ninth Circuit affirmed the litigation theory reflects a long, successful history of creativ-
dismissal, and the U.S. Supreme Court subsequently denied ity and persistence on the part of environmental lawyers in
certiorari in the case.23 For purposes of advancing the climate seeking recovery for environmental damage under common-
justice movement, however, both the Inuit petition and the law theories. The success of environmental litigation against
Kivalina case can best be characterized as “losing the battle, the asbestos, lead paint, and tobacco industries, and federal
but winning the war.” The best evidence of the success of and state legislation regulating these activities that followed
these creative climate justice litigation efforts is that the use shortly thereafter, offers compelling and inspiring examples
of these theories to seek governmental and private-sector of the creativity and persistence of the environmental bar.
accountability for climate change impacts continues to this Climate justice litigation appears to be the next success in
day in the United States and abroad. this storied tradition. The only question remaining is how
The most recent—and potentially most promising— soon that success will materialize.
development in this line of public nuisance climate justice
litigation is the efforts of cities in California seeking to rely II. From Public Trust to Atmospheric
on state public nuisance law to recover for climate change Trust Litigation
impacts in their cities. The federal displacement doctrine
from American Electric Power Co. v. Connecticut applies only In a related but separate theater in the battle for climate
to public nuisance claims under federal common law.24 This justice, the atmospheric trust litigation (ATL) theory was
case left the door open for potential recovery on public nui- launched in the wake of the Kivalina litigation. In a bold and
sance claims under state law, which in now being tested in ambitious step, the environmental nongovernmental organi-
the courts. zation, Our Children’s Trust, launched cases throughout the
In the first of these cases, County of Santa Cruz v. Chevron nation with youth plaintiffs leading the charge.28 The ATL
Corp., the city and county of Santa Cruz, California, sued theory sought to extend the public trust to compel federal
29 fossil fuel companies for a wide range of climate change and state governmental entities to protect the atmosphere for
impacts the city and county were experiencing, including
18. See e.g., Bruce Yandle, The Common Law and the Environment in the Courts: 25. Complaint at 2, County of Santa Cruz v. Chevron Corp., No. 17CV03242
Discussion of Code Law and Common Law, 58 Case W. Res. L. Rev. 647, (Cal. Super. Ct., filed Dec. 20, 2017), http://blogs2.law.columbia.edu/cli-
648–54 (2008). mate-change-litigation/wp-content/uploads/sites/16/case-documents/2017/
19. The Kivalina case built on a progression of cases in the federal courts relying 20171220_docket-17CV03242-_complaint.pdf.
on public nuisance and the federal common law of interstate pollution to seek 26. Id. at 123.
redress for climate change mitigation and adaption (American Elec. Power Co. 27. Complaint, City of Richmond v. Chevron Corp., No. C18-00055 (Cal. Super.
v. Connecticut, California v. General Motors Corp., and Comer v. Murphy Oil Ct., filed Jan. 22, 2018), http://blogs2.law.columbia.edu/climate-change-lit-
USA) that laid a foundation for the Kivalina theory to proceed. For a detailed igation/wp-content/uploads/sites/16/case-documents/2018/20180122_dock-
discussion of this line of cases, see generally Randall S. Abate, Public Nuisance et-C18-00055_complaint.pdf. On July 18, 2018, the U.S. District Court for
Suits for the Climate Justice Movement: The Right Thing and the Right Time, 85 the Northern District of California granted the city of Richmond’s and the city
Wash. L. Rev. 197 (2010). For a compelling and heart-wrenching account of and county of Santa Cruz’s motion to remand the case to state court, http://
the legal and cultural context of the Kivalina litigation, see generally Chris- blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/
tine Shearer, Kivalina: A Climate Change Story (2011). 16/case-documents/2018/20180710_docket-518-cv-00450_order-1.pdf. As
20. Native Vill. of Kivalina v. ExxonMobil Corp. (Kivalina I), 663 F. Supp. 2d of this writing, the defendants’ appeal of the remand order is pending.
863, 869, 39 ELR 20236 (N.D. Cal. 2009). 28. See, e.g., Press Release, Our Children’s Trust, Youth Sue the Government
21. Kivalina II, 696 F.3d at 853 n.2 (citing U.S. Gov’t Accountability Office, to Preserve the Future and Halt Climate Change (May 4, 2011), https://
GAO 04−142, Alaska Native Villages: Most Are Affected by Flooding static1.squarespace.com/static/571d109b04426270152febe0/t/576d76cb3e00
and Erosion, but Few Qualify for Federal Assistance 30, 32 (2003)). bec5631952d1/1466791631209/iMatter_Legal_Release_11.05.01.pdf [https:
22. Kivalina I, 663 F. Supp. 2d at 868. //perma.cc/DXH4-E4LD]; Press Release, Our Children’s Trust, Kansas
23. 133 S. Ct. 2390 (2013). Youth Files Climate Change Lawsuit (Oct. 18, 2012), https://static1.square
24. Tracy D. Hester, A New Front Blowing in: State Law and the Future of Climate space.com/static/571d109b04426270152febe0/t/576d6a2237c581d6b14799
Change Public Nuisance Litigation, 31 Stan. Envtl. L.J. 49, 52 (2012) (citing b2/1466788389238/2012.10.18-KansasPR_0.pdf [https://perma.cc/DRL6-
American Elec. Power v. Connecticut, 131 S. Ct. 2527, 41 ELR 20210 (2011)). 7YRY].
the benefit of their citizens.29 Case law had already extended denied the federal government’s motion to dismiss the case
the reach of the public trust doctrine in incremental steps and held that the plaintiffs’ claims against the federal govern-
beyond the scope of the uses in the traditional triad (navi- ment could proceed to trial.38
gation, commerce, and fishing) to reach the protection of In the wake of Judge Aiken’s decision, and for the next
groundwater, wetlands recreation, and wildlife. If courts three years, the federal government made multiple attempts
have recognized coverage of resources beyond the traditional to dismiss the case by employing a wide range of procedural
triad, then extending public trust to the protection of the mechanisms.39 The case was originally set for trial in Octo-
atmosphere may logically follow.30 ber 2018,40 but the Ninth Circuit granted the federal gov-
The first wave of ATL cases was filed against many state ernment’s request for a temporary stay of the district court’s
governments and the federal government. These state cases proceedings.41 In November 2018, Judge Aiken issued an
enjoyed some preliminary success and favorable language order certifying the case for interlocutory appeal to the
from the courts,31 but progress has been slow to material- Ninth Circuit. As this writing is sent to print, the Ninth Cir-
ize. Moreover, the federal case, Alec L. v. Jackson,32 ran into cuit heard oral arguments on the interlocutory appeal in June
trouble regarding whether the public trust doctrine could be 2019 in Portland, Oregon.42
applied to the federal government. The court concluded that
it could not be applied to the federal government and dis- III. Toward a Constitutional Right to
missed the case.33 In the Juliana case, the plaintiffs retooled a Stable Climate System
the theory and added constitutional claims based on the
Equal Protection Clause, the Due Process Clause, and the The momentum that the Juliana plaintiffs appear to have
Ninth Amendment.34 going into the potential trial in 2019 is promising. This wave
ATL advances two trends in environmental protection. of success and optimism would not have been possible with-
First, it seeks enhanced duties on regulators to promote stew- out a variety of synergistic developments in related contexts.
ardship of resources. Second, it seeks to promote rights-based Rights-based theories for environmental protection have
protections of individuals and consideration of future genera- enjoyed many significant victories in the past few years. The
tions’ interests. These two strands are reflected in the Juli- public trust doctrine has been used with some success as a
ana litigation.35 The young plaintiffs alleged that the federal rights-based theory for relief in recent climate change cases
government’s affirmative actions in establishing a national outside the United States in nations such as Pakistan, the
energy system that accelerates global climate change violated Philippines, and Ukraine.43 In addition, within the span of
their due process rights to life, liberty, and property and has one week in March 2017, legal personhood protections were
failed to protect public trust resources.36 secured for the Whanganui River in New Zealand44 and the
In 2016, the government filed a motion to dismiss the Ganges and Yunama Rivers in India.45 It is significant for
claims in Juliana,37 which presented Judge Ann Aiken of the purposes of ATL momentum that the rights-based protec-
United States District Court for the District of Oregon with tions for the rivers in India were secured in court.46
an opportunity to rule on the validity of this retooled ver- Since 2014, the Nonhuman Rights Project (NhRP) has
sion of the ATL theory. In a landmark decision, Judge Aiken pursued similar efforts in the animal protection domain in
a line of ongoing cases seeking to free chimpanzees from
29. See generally Ipshita Mukherjee, Atmospheric Trust Litigation—Paving the Way
for a Fossil-Fuel Free World, Stan. L. Sch. Blogs (July 5, 2017), https://law.
unwarranted captivity pursuant to a habeas corpus peti-
stanford.edu/2017/07/05/atmospheric-trust-litigation-paving-the-way-for-a- tion.47 Like the state-level ATL cases, some courts in these
fossil-fuel-free-world/ [https://perma.cc/V8FG-DZDK].
30. Prof. Mary Wood is the pioneer of the ATL movement. For a comprehensive
discussion of her groundbreaking scholarship on the ATL theory, see generally 38. Id.
Mary Christina Wood, Nature’s Trust: Environmental Law for a New 39. For a detailed discussion of these developments, see Our Children’s Trust, Ju-
Ecological Age (2013); Mary Christina Wood, Atmospheric Trust Litigation, liana v United States: Youth Climate Lawsuit, https://www.ourchildrenstrust.
in Adjudicating Climate Change: State, National, and International org/juliana-v-us.
Approaches 99−125 (William C.G. Burns & Hari M. Osofsky eds., 2009); 40. Id.
Blumm & Wood, supra note 2; Mary Christina Wood & Charles W. Wood- 41. Id.
ward, IV, Atmospheric Trust Litigation and the Constitutional Right to a Healthy 42. Id.
Climate System: Judicial Recognition at Last, 6 Wash. J. Envtl. L. & Pol’y 663 43. United Nations Env’t Programme, The Status of Climate Change Liti-
(2016). gation: A Global Overview 23−24 (May 2017), https://www.unenviron-
31. For a discussion of these ATL cases from New Mexico, Oregon, Texas, and ment.org/resources/publication/status-climate-change-litigation-global-review
Washington, see Randall S. Abate, Atmospheric Trust Litigation in the United [https://perma.cc/JVN3-NC9U].
States: Pipe Dream or Pipeline to Justice for Future Generations?, in Climate 44. New Zealand’s Whanganui River Granted Legal Status as a Person After 170-Year
Justice: Case Studies in Global and Regional Governance Challenges Battle, ABC.net, Mar. 15, 2017, http://www.abc.net.au/news/2017-03-16/
554−58 (Randall S. Abate ed., 2016). For updates on ATL cases in the U.S. nz-whanganui-river-gets-legal-status-as-person-after-170-years/8358434.
and abroad, consult the Our Children’s Trust website, www.ourchildrenstrust. 45. Shynam Krishnakumar, Could Making the Ganges a “Person” Save India’s
org/. Holiest River?, BBC.com, Apr. 5, 2017, https://www.bbc.com/news/world-
32. 863 F. Supp. 2d 11, 42 ELR 20115 (D.D.C. 2012), aff’d sub nom., Alec L. ex asia-india-39488527.
rel. Loorz v. McCarthy, 561 Fed. App’x 7, 44 ELR 20130 (D.C. Cir. 2014). 46. Salim v. State of Uttarakhand, No. 126 of 2015, High Court of Uttarakhand
33. Id. at 15. (Mar. 20, 2017), http://hindi.indiawaterportal.org/sites/hindi.indiawaterpor-
34. See Juliana v. United States, 217 F. Supp. 3d 1224, 1233−34, 46 ELR 20175 tal.org/files/WPPIL-126-14%20HC-UTTARAKHAND%20ORDER%20
(D. Or. 2016). ON%20GANGA%20AND%20YAMUNA%20RIVER%20RIGHTS-1.pdf.
35. Id. 47. See generally Randall S. Abate & Jonathan Crowe, From Inside the Cage to Out-
36. Id. side the Box: Natural Resources as a Platform for Nonhuman Animal Personhood
37. Id. at 1233. in the U.S. and Australia, 5 Global J. Animal L. 54, 57−60 (2017) (providing
Summer 2019 ATMOSPHERIC TRUST LITIGATION 37
NhRP cases were receptive to the rights-based legal theory In what has been widely recognized as a groundbreaking
but were not prepared to rule in favor of the plaintiffs’ peti- decision, Judge Aiken’s reasoning in Juliana provides fer-
tions. Nevertheless, two related rights-based efforts to pro- tile opportunities for the ATL theory in this case to open
tect animals from abuse and unwarranted captivity were the door for possible Due Process Clause protection of the
successful in 2016. First, Ringling Brothers agreed to dis- right to a stable climate system. Judge Aiken’s decision laid a
continue the use of elephants in its traveling circus shows,48 valuable foundation for extending fundamental rights juris-
curtailing a 150-year tradition; second, SeaWorld agreed prudence under the Due Process Clause to environmental
to discontinue its orca-captive breeding program49 after its rights. In concluding that the case could proceed to trial,
practices came under public scrutiny following a lawsuit Judge Aiken noted that “Federal courts too often have been
and high-profile documentary.50 cautious and overly deferential in the arena of environmental
Most importantly, and in a seemingly unrelated success, law, and the world has suffered for it.”55
the recognition under the Due Process Clause of the right to Judge Aiken noted that “[t]he identification and protec-
same-sex marriage in Obergefell v. Hodges51 has laid perhaps tion of fundamental rights . . . has not been reduced to any
the most compelling foundation on which the Juliana plain- formula.”56 Judge Aiken concluded that the plaintiffs had
tiffs may prevail. Many of the most significant constitution- adequately alleged infringement of a fundamental right,
ally protected rights in the United States have been initially explaining that “[t]o hold otherwise would be to say that the
derived from Supreme Court jurisprudence, such as a wom- Constitution affords no protection against a government’s
an’s right to choose in Roe v. Wade.52 The Supreme Court has knowing decision to poison the air its citizens breathe or the
long recognized the Due Process Clause as a gateway for the water its citizens drink.”57
recognition of unenumerated fundamental rights. The Due Judge Aiken relied heavily on the reasoning in Oberge-
Process Clause’s protection of life, liberty, and property— fell, which recognized “marriage as a right underlying and
read in conjunction with the Ninth Amendment53 —has supporting other liberties” and as “a keystone of our social
enabled the Court to recognize evolving societal values and order.”58 Relying on Justice Kennedy’s reasoning in his
articulate unenumerated fundamental rights without engag- majority opinion in Obergefell, Judge Aiken connected the
ing the constitutional amendment process. reasoning on same-sex marriage to the stable climate con-
The list of unenumerated rights is well-entrenched in the text in Juliana.59 In “[e]xercising [her] ‘reasoned judgment,’”
Court’s jurisprudence and spans decades of groundbreaking Judge Aiken had “no doubt that the right to a climate sys-
jurisprudence. This list of rights includes abortion, contracep- tem capable of sustaining human life is fundamental to a
tion, upbringing of children, procreation, sexual intimacy, free and ordered society. Just as marriage is the ‘foundation
marriage, and most recently, same-sex marriage.54 Admit- of the family,’ a stable climate system is quite literally the
tedly, many of these rights are rooted in privacy-related pro- foundation ‘of society, without which there would be neither
tections. Trying to connect a constitutional environmental civilization nor progress.’”60 Accepting as true plaintiffs’ alle-
right to the foundation of these privacy-based liberty pro- gations that the government
tections is ambitious and may explain why such efforts have
played a unique and central role in the creation of our cur-
been unsuccessful in the past. But the Obergefell decision
rent climate crisis; that they contributed to the crisis with
opened a door for a Due Process Clause foundation for a
full knowledge of the significant and unreasonable risks
constitutional right to a stable climate system in a way that
posed by climate change; and that the Due Process Clause
the previous line of Due Process recognition of unenumer-
therefore imposes a special duty on defendants to use their
ated rights could not offer.
statutory and regulatory authority to reduce greenhouse
gas emissions,
a summary of NhRP cases). For updates on all of NhRP’s cases, see Litigation:
A Legal Team With the Power to Make History for Nonhuman Animals, Non- Judge Aiken held that plaintiffs adequately alleged their
Human Rights Project, https://www.nonhumanrights.org/litigation (last claim and may proceed to trial on the due process issues.61
visited July 22, 2018).
48. Susan Zalkind, “The End of an Era”: Ringling Bros Circus Closes Curtain on
The youth plaintiffs also made public trust claims.62 These
Elephant Shows, The Guardian, May 2, 2016, https://www.theguardian.com/ claims arose “from the application of the public trust doc-
stage/2016/may/02/ringling-brothers-elephants-circus-final-show. trine to essential natural resources.”63 The plaintiffs stated
49. Brian Clark Howard, SeaWorld to End Controversial Orca Shows and
Breeding, Nat’l Geographic, Mar. 17, 2016, https://news.nationalgeo
that with respect to these essential resources, “the sovereign’s
graphic.com/2016/03/160317-seaworld-orcas-killer-whales-captivity-breeding-
shamu-tilikum/ (last visited July 22, 2018). 55. Juliana, 217 F. Supp. 3d at 1262.
50. See Tilikum v. SeaWorld Parks & Entm’t, Inc., 842 F. Supp. 2d 1259 (S.D. Cal. 56. Id. at 1249 (quoting Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015)).
2012); Blackfish (CNN Films 2013). 57. Id. at 1250.
51. 135 S. Ct. 2584 (2015). 58. Obergefell, 135 S. Ct. at 2601.
52. 410 U.S. 113 (1973). 59. Juliana, 217 F. Supp. 3d at 1249−51.
53. The Ninth Amendment provides, “The enumeration in the Constitution, of 60. Id. at 1250. Plaintiffs asserted that if the government’s actions that contributed
certain rights, shall not be construed to deny or disparage others retained by to climate change were to “continue unchecked,” such actions would “perma-
the people.” U.S. Const. amend. IX. nently and irreversibly damage plaintiffs’ property, their economic livelihood,
54. Brief of Amicus Curiae Law Professors for D. Or., at 15−16, United States their recreational opportunities, their health, and ultimately their (and their
v. United States Dist. Court for the Dist. of Oregon, No. 6:15-cv-01517- children’s) ability to live long, healthy lives.” Id.
TC-AA (9th Cir. 2017), https://static1.squarespace.com/static/571d109b 61. Id. at 1251–52.
04426270152febe0/t/59af3d0d3e00be820ce723b6/1504656654021/Law+Pr 62. Id. at 1253.
of+Motion+and+Amicus+Brief.pdf [https://perma.cc/7JY8-GN9S]. 63. Id.
public trust obligations prevent it from ‘depriving a future trust predates the Constitution, plaintiffs’ right of action
legislature of the natural resources necessary to provide for to enforce the government’s obligations as trustee arises
the well-being and survival of its citizens.’”64 from the Constitution.” 71
Judge Aiken stated, “the government, as trustee, has Judge Aiken further observed that this action is of a dif-
a fiduciary duty to protect the trust assets from dam- ferent order than the typical environmental case. It alleges
age so that current and future trust beneficiaries will be that “[the government’s] actions and inactions—regardless
able to enjoy the benefits of the trust.”65 She concluded of whether they violate any specific statutory duty—have
that plaintiffs had adequately alleged harm to public so profoundly damaged our home planet that they threaten
trust assets because “[t]he federal government holds title plaintiffs’ fundamental constitutional rights to life and
to the submerged lands between three and twelve miles liberty.”72 In addition, “[e]ven when a case implicates hotly
from the coastlines of the United States” and “a number contested political issues, the judiciary must not shrink from
of plaintiffs’ injuries relate to the effects of ocean acidi- its role as a coequal branch of government.”73
fication and rising ocean temperatures.”66 Judge Aiken Judge Aiken’s decision could secure a historic victory for
also stated that plaintiffs’ federal public trust claims are environmental rights in the U.S. federal court system, but
recognized in federal court and that “the federal govern- it has a long way to go. The outcome in Obergefell appeared
ment, like the states, holds public assets—at a minimum, to be similarly improbable just five years ago as it was work-
the territorial seas—in trust for the people.”67 Judge ing its way through the federal courts, and yet the right to
Aiken further determined that “[p]ublic trust claims same-sex marriage is now constitutionally enshrined under
are unique because they concern inherent attributes of the Due Process Clause. The Juliana case will likely remain
sovereignty.”68 “The public trust imposes . . . an obliga- in the U.S. federal courts for years to come as it makes its way
tion [on the government] to protect the res of the trust”; a to the Supreme Court. In the meantime, the ATL movement
significant “feature of that obligation is that it cannot be will continue to be propelled forward by favorable tail winds
legislated away.”69 Thus, “[b]ecause of the nature of pub- in the United States and abroad as it seeks to secure recogni-
lic trust claims, a displacement analysis simply does not tion of a constitutional right to a stable climate system under
apply.” 70 Judge Aiken noted that “[a]lthough the public the Due Process Clause of the Constitution.74
71. Id. at 1261.

72. Id.
73. Id. at 1263.
74. The momentum from the Juliana litigation has inspired additional promis-
ing ATL cases in U.S. state courts. For example, in Reynolds v. Florida, youth
plaintiffs sued Gov. Rick Scott for failing to act on climate change and, in
many ways, taking actions to deepen the crisis. South Florida is one of the most
vulnerable areas in the world to sea-level rise, with the number of high tide
floods in Miami Beach increasing by 400% since 2006. The suit alleges that
the state government has violated: (1) youth plaintiffs’ rights to due process
by violating their rights to life, liberty, and property; and (2) the public trust
doctrine as reflected in the ATL theory by allowing and sometimes facilitating
fossil fuel companies in their carbon-intensive fossil fuel extraction and pro-
duction activities, including supporting offshore drilling and imposing strict
regulations on solar energy development. See Complaint, Reynolds v. Flori-
da, No. 18-CA-000819 (Fla. Cir. Ct. Apr. 16, 2018), https://static1.square
64. Id. space.com/static/571d109b04426270152febe0/t/5ad6274f575d1f452d0e0015/
65. Id. at 1254. 1523984211940/2018.04.15.FL.Complaint.FINAL.pdf [https://perma.cc/2XS9-
66. Id. at 1255–56. AYLZ]; see also Press Release, Our Children’s Trust, Constitutional Climate
67. Id. at 1259. Lawsuit Brought by Young Alaskans Heard in Anchorage (Apr. 30, 2018),
68. Id. at 1260. https://static1.squarespace.com/static/571d109b04426270152febe0/t/5ae7f3
69. Id. f770a6ad3043d94eec/1525150712298/2018.04.30+Sinnok+v.+Alaska+hear
70. Id. ing+press+release.pdf https://perma.cc/ZM59-J9Y9].

From Mono Lake to the Atmospheric Trust:
Navigating the Public and Private Interests
in Public Trust Resource Commons
Erin Ryan*
This Article partners a summary of the Mono Lake story—one of the all-time great tales of environmental, property,
and water law—with additional historical context, expanded legal analysis, and new reporting on contemporary public
trust developments, especially Juliana v. United States and the unfolding atmospheric trust climate litigation. The Mono
Lake case and its progeny—in which the public trust doctrine has been applied in contexts ranging from takings litiga-
tion to groundwater management to fracking regulation and now to climate change—prompt reflection about the way
the public trust doctrine navigates complex conflicts between public and private rights in natural resource commons.
This treatment explores the origins of the public trust doctrine in Roman and British common law through its develop-
ment in American law, including the U.S. Supreme Court’s 1892 affirmation of the doctrine as a background principle of
state law in Illinois Central Railroad v. Illinois. It then introduces the law of private water allocation in the eastern and
western United States—riparian rights and prior appropriations, respectively. It considers how the public commons theory
that underlies the public trust doctrine collides unapologetically with the privatization theory that undergirds the western
doctrine of prior appropriations, enabling academic analysis of how this conflict so famously played out at Mono Lake.
The Article summarizes the historical and judicial elements of the Mono Lake story, including the implications of the
court’s decision for understanding the public trust doctrine as a limit on sovereign authority. It summarizes the criticisms
that followed from advocates for property rights, the constitutional separation of powers, and environmental concerns, and
reviews the doctrinal progeny of the case, including the Scott River extension of Mono Lake to groundwater resources, the
Pennsylvania Supreme Court’s application of public trust principles to fracking regulation, and now the atmospheric trust
climate litigation emerging worldwide.
*
Erin Ryan, Elizabeth C. & Clyde W. Atkinson Professor, Florida State University College of Law; J.D., Harvard Law School; M.A., Wesleyan
University; B.A. Harvard University. I am thankful to the organizers and participants of the George Washington Journal of Energy and
Environmental Law Public Trust Symposium for their invitation and helpful comments, and to Mallory Neumann, Jill Bowen, Taylor Schock,
and Jennifer Mosquera for their research assistance in support of this project. This essay distills work previously published in Erin Ryan, The Public
Trust Doctrine, Private Water Allocation, and Mono Lake: The Historic Saga of National Audubon Society v. Superior Court, 45 Envtl. L.
561 (2015), together with new historical context and reporting on subsequent developments.

Table of Contents
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1
I. Legal Doctrines Governing Public and Private Interests in Water Resources. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1
A. Legal Origins of the Public Trust Doctrine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2
1. The Roman and Byzantine Empires. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2
2. The Magna Carta and Forest Charter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2
3. British Common Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3
B. Reception in the United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3
1. American Common Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3
2. Affirmation by the U.S. Supreme Court.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 4
3. Illinois Central Railroad v. Illinois. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5
4. State Constitutions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 6
C. The Law of Private Water Allocation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 7
1. Riparian Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 7
2. Prior Appropriations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 8
II. Building the Los Angeles Aqueduct.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 8
A. The Owens Valley. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 9
B. The Mono Lake Basin. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 0
C. The Mono Basin Extension. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1
D. The Impacts of Diversions in the Mono Basin.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2
III. National Audubon Society v. Superior Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3
A. The Legal Arguments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3
B. The Court’s Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 4
C. The Aftermath: The Water Board’s Decision 1631. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 5
IV. Unpacking the Mono Lake Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 6
A. The Nature of the Public Trust Doctrine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 6
B. Doctrinal Extensions on Values, Tributaries, and Time.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 7
1. Environmental Public Trust Values.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 7
2. Non-Navigable Tributaries.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 8
3. Duty of Ongoing Supervision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 8
C. Post-Decision Pushback. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 9
V. The Contested Future: An Atmospheric Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 0
Conclusion: Navigating Public and Private Interests in Natural Resource Commons. . . . . . . . . . . . . . . . . . . . . . . 6 4
Summer 2019 FROM MONO LAKE TO THE ATMOSPHERIC TRUST 41
Introduction California,8 and the atmospheric trust climate advocacy

unfolding as this piece goes to press.9 Part I introduces the
It is a pleasure to share with this symposium one of the all- public trust doctrine itself, including its origins in Roman
time great stories of American environmental, property, and and British common law. I trace how the public trust doc-
water law—the saga of National Audubon Society v. Superior trine has developed in American law since its reception in
Court, better known as the Mono Lake case.1 It recounts the the early 19th century, culminating in the U.S. Supreme
epic conflict over water between the city of Los Angeles and Court’s 1892 affirmation of the public trust doctrine in Illi-
advocates for the Mono Basin, the eastern watershed of the nois Central Railroad v. Illinois.10 From there, the Article
high Sierra Nevada crest at Yosemite National Park, some briefly introduces the law of private water allocation in both
four hundred miles to the north. In 1983, the California the eastern and western United States, contrasting how the
Supreme Court took the first steps toward resolving that con- public commons theory that underlies the public trust doc-
flict by drawing on an ancient common-law doctrine with trine intersects with the privatization theory that undergirds
roots in early Roman and British law—the public trust doc- the western doctrine of prior appropriations. The discussion
trine—which entrusts the state to manage certain natural there prepares us to analyze the conflict between them that
resource commons for the benefit of the public. Since then, played out at Mono Lake.
the Mono Lake case has remained the leading example of Part II sets the stage for the case that followed, recount-
modern public trust litigation in the United States, inspiring ing the extension of the Los Angeles Aqueduct to the Mono
a new age of public trust advocacy throughout the country Basin, the impacts of diversions on the Mono Lake ecosys-
and even the world.2 tem, and how they galvanized a determined group of local,
The Mono Lake story prompts reflection about the way state, and national plaintiffs to try and “Save Mono Lake.”
the public trust doctrine navigates complex conflicts between Part III begins the legal analysis of the Mono Lake case.
public and private rights in natural resource commons, from After summarizing the parties’ legal arguments, it reviews
ancient protections for waterways to contested claims for the California Supreme Court’s groundbreaking conclu-
atmospheric resources. It is a wonderful tale to tell, and it is sion and the legal aftermath that culminated in the Water
also very dear to me personally, because it includes the case Board’s decision to limit water diversions as needed to pro-
that brought me into the law. During the aftermath of the tect Mono Lake.
California Supreme Court’s decision in the case, I served as Part IV analyzes the precedent created by Mono Lake. It
an interpretive ranger with the U.S. Forest Service (Forest explores the nature of the public trust doctrine as a limit
Service) on the Mono Lake District of the Inyo National For- on sovereign authority, highlights noteworthy legal inno-
est. There, it was my job to share this story with the general vations in the decision, and reviews doctrinal progeny of
public, cast as “the Water Issue,” until it eventually inspired the case, including the recent Scott River case extending
me to leave the Forest Service for law school. Some twenty the Mono Lake rationale to groundwater resources.11 It also
years later, I had the opportunity to write the full history of summarizes the main schools of criticisms generated by the
the case in a law review article3 that I was then invited to turn decision, primarily among advocates for property rights,
into a book,4 and I am delighted to be able to share some of the separation of powers, and environmentalists. Finally,
that work as part of this public trust symposium.5 Part V considers the next generation of public trust advo-
In this Article, I partner a summary of the Mono Lake cacy following in the footsteps of the Mono Lake case, espe-
story with additional historical context, expanded legal cially Juliana v. United States and related climate litigation
analysis, and new reporting on important public trust devel- emerging worldwide.12 The Article concludes with reflec-
opments, including its application in takings litigation,6 tions on the role of the doctrine in helping us navigate the
to fracking regulation in Pennsylvania,7 groundwater in public and private interests in public natural resource com-
mons more generally.
1. 658 P.2d 709, 13 ELR 20272 (Cal. 1983).
2. Nations as far distant as India have relied on the Mono Lake case to instanti-
ate public trust principles in their own legal systems. M.C. Mehta v. Kamal I. Legal Doctrines Governing Public and
Nath, (1996) 1 S.C.C. 388 (India), in I United Nations Environment
Programme Compendium of Judicial Decisions in Matters Related to
Private Interests in Water Resources
the Environment, National Decisions 259 (1998) (discussing the role of
the public trust doctrine in Indian law and quoting the California Supreme In the Mono Lake case, advocates invoked the public trust
Court’s description of the doctrine in Mono Lake). doctrine to protect public law interests in the environmental
3. Erin Ryan, The Public Trust Doctrine, Private Water Allocation, and Mono Lake:
The Historic Saga of National Audubon Society v. Superior Court, 45 Envtl. values associated with a navigable waterway against private
L. 561 (2015) [hereinafter Ryan, The Historic Saga].
4. Erin Ryan, The Public Trust Doctrine, Private Water Rights, and Sav-
ing Mono Lake (forthcoming 2020). 8. Envtl. Law Found. v. State Water Res. Control Bd., Case No.: 34-2010-
5. This is in reference to the 2018 J.B. & Maurice C. Shapiro Environmental Law 80000583 (Cal. 3d App. Dist., Aug. 29, 2018) [hereinafter Scott River case].
Symposium, “The Public Trust Doctrine in the 21st Century” hosted at The See infra notes 284–89.
George Washington University Law School on March 15, 2018. 9. Juliana v. United States, 217 F. Supp. 3d 1224, 46 ELR 20072 (D. Or. 2016).
6. See infra notes 75–79 and accompanying text, discussing use of the public trust See supra Part V.
doctrine to defend takings claims. 10. 146 U.S. 387, 435 (1892).
7. Pa. Envtl. Def. Found. v. Commonwealth, 161 A.3d 911, 47 ELR 20081 (Pa. 11. Scott River, Case No.: 34-2010-80000583 (Cal. 3d App. Dist., Aug. 29, 2018).
2017); Robinson Township v. Commonwealth, 83 A.3d 901, 43 ELR 20276 12. See Juliana, 217 F. Supp. 3d 1224, and the other atmospheric trust cases dis-
(Pa. 2013). See infra notes 86–90. cussed infra Part IV.
law claims to the actual water within it.13 To understand how tion and restating the law for enforcement purposes.17 In the
these public and private interests came into conflict at Mono Institutes of Justinian, published in 533, he documented the
Lake, it is important to understand the different legal doc- jus publicum, a principle addressing the common ownership
trines that govern water resources in the United States. This of certain natural resources: “By natural law, these things are
part introduces the public trust doctrine, which establishes the common property of all: the air, the running water, the
public rights and responsibilities in water, and more curso- sea, and with it, the shores of the sea.”18 Thousands of years
rily, the law of private water allocation, which assigns private later, it is hard to know exactly how these principles helped
rights to use the water within those waterways. And as the govern the Roman Empire,19 but this commanding early
Mono Lake conflict demonstrates, these two sets of laws will statement of public commons has redounded through com-
not always play nicely. mon-law jurisprudence ever since, in both judicial decisions
Part I.A. introduces the public trust doctrine and its his- and constitutional affirmations.20 Analogous principles of
torical origins, tracing the public trust principle from ancient public commons ownership, especially pertaining to water-
Rome, through early British law, to its formal reception in ways, also appear in civil law countries with legal codes that
the United States. Because the law of private allocation also draw on ancient Roman law, including France, Spain, and
plays an important role in the Mono Lake conflict, Part I.B. other post-colonial nations with related legal systems.21
provides a light introduction to the primary doctrines of In the Mono Lake story that is the focus of this Article,
private water allocation: the riparian rights doctrine of the we will hear a lot about the intersection of these public trust
eastern United States, inherited from British law, and the principles with water resources, and indeed, the doctrine is
prior appropriations doctrine that evolved later in the west- most often invoked in application to waterways. But before
ern United States. moving on, we might pause here for a moment to acknowl-
edge the very first item in Justinian’s list—“the air”—because
A. Legal Origins of the Public Trust Doctrine that will become an important element in the modern pub-
lic trust developments reviewed toward the end of our story,
Modern public trust principles, which assign state respon- now that advocates are deploying public trust principles in
sibility for natural resources held in trust for the public, are the context of climate governance.22
most famously associated with American law.14 However, the
public trust doctrine has roots in some of the oldest doctrines 2. The Magna Carta and Forest Charter
of the common-law tradition15 —with many accounts dating
its origins to early British law, and some all the way back Some jus publicum principles were later incorporated into
to ancient Rome.16 This section presents the conventional early British law, beginning with the Magna Carta. In 1215,
historical account of the development of the modern public King John of England issued the Magna Carta (Great Char-
trust doctrine. ter), promising his rebellious barons that he and all future
sovereigns would operate within the rule of law.23 Although
1. The Roman and Byzantine Empires the Magna Carta was unsuccessful in the first instance, it
eventually provided the foundations of the modern English
In the 6th century A.D., the Byzantine Emperor Justinian legal system, and it is credited as a progenitor of Western
I set to work codifying Roman Common Law of the previ- democracy and constitutional law.24 In addition to declaring
ous era, for the combined purpose of fortifying legal educa- the sovereign subject to the rule of law, the Magna Carta also
set forth rights to speedy justice, to trial by jury, and against
unusual punishments.25 It also incorporated into English law
13. Mono Lake, 658 P.2d at 726–27. certain principles of Roman common law, including elements
14. See, e.g., M.C. Mehta v. Kamal Nath, (1996) 1 S.C.C. 388 (India), in I of the jus publicum. For example, Chapter 23 of the Magna
United Nations Environment Programme Compendium of Judicial
Decisions in Matters Related to the Environment, National Deci-
sions 259 (1998) (referring to the California public trust doctrine, as ex- 17. Herbert F. Jolowicz & Barry Nicholas, Historical Introduction to
pressed in the Mono Lake case, in adopting similar public trust principles the Study of Roman Law 492−93 (3d ed. 1972).
as a feature of Indian constitutional law). See also Alexandra B. Klass, Mod- 18. Id.
ern Public Trust Principles: Recognizing Rights and Integrating Standards, 82 19. See Huffman, supra note 15; Ruhl & McGinn, supra note 16.
Notre Dame L. Rev. 699, 701 (2006) (discussing American versions of 20. See Ryan, supra note 4, at Chapter VIII (The Evolving PTD) (tracing the evo-
public trust doctrine in general, and referring to various expressions of the lution of the doctrine in the U.S. and international jurisdictions).
trust as “public trust principles”). 21. See, e.g., Glenn J. Macgrady, The Navigability Concept in the Civil and Com-
15. See, e.g., Joseph Sax, The Public Trust Doctrine in Natural Resource Law: Ef- mon Law: Historical Development, Current Importance, and Some Doctrines
fective Judicial Intervention, 68 Mich. L. Rev. 471, 475 (1970) (laying the That Don’t Hold Water, 3 Fla. St. U. L. Rev. 513, 536–45 (1975), https://
seminal academic foundations for the public trust doctrine as a tool to aid in ir.law.fsu.edu/cgi/viewcontent.cgi?article=1801&context=lr [https://perma.cc/
the protection of natural resources, and crediting its origins to early British and E9BF-2FQD] (reviewing Roman-inspired doctrines of public ownership over
Roman law); but see James L. Huffman, Speaking of Inconvenient Truths—A navigable waterways in Spain, France, and other civil law countries).
History of the Public Trust Doctrine, 18 Duke Envtl. L. & Pol’y F. 1, 21 (2007) 22. See Juliana v. United States, 217 F. Supp. 3d 1224, 46 ELR 20072 (D. Or.
(critiquing the conventional account of this history). 2016); discussed infra Part IV.
16. J. Inst. Proemium, 2.1.1. (T. Sandars trans., 4th ed. 1867) (translation from 23. See Andrew Blick, Beyond Magna Carta: A Constitution for the Unit-
the Institutes of Justinian, by the Byzantine Emperor, Justinian I.). But see J.B. ed Kingdom (Bloomsbury, 2015).
Ruhl & Thomas McGinn, The Roman Public Trust Doctrine—Not Public, Not 24. See Doris Mary Stenton, Magna Carta, Encyclopedia Britannica, https://
a Trust, Not a Doctrine, But Not Nothing (forthcoming 2019) (critiquing the www.britannica.com/topic/Magna-Carta [https://perma.cc/6ZXC-9QQ3].
standard account of the Justinian roots of the doctrine). 25. Id.
Carta required the removal of all weirs in the Thames and the Magna Carta protected only British nobility, rather than
Medway Rivers “throughout all of England” that interfered the general public, and that the King’s prerogatives under
with fishing or navigation.26 The Magna Carta was negoti- British common law did not include trust-like responsibili-
ated between a proto-public commons over navigable waters ties until the 19th century.34 Others, including Profs. J.B.
for these purposes.27 Ruhl and Tom McGinn question the relevance of the Jus-
The Charter of the Forest, added to the Magna Carta in tinian statement of the Jus Publicum to actual Roman legal
1217 by King Henry III, further protected public rights to practice.35 Indeed, it may be that the ideals of the Forest
access natural resources on certain undeveloped royal lands Charter come closer to the public trust principles that would
(not just forests), and it remained in effect for centuries there- ultimately evolve in the United States.36 Nevertheless, the
after.28 Re-establishing traditional rights of public commons early American courts that adopted the public trust doctrine
that had been eroded by William the Conqueror, the For- referred copiously (and perhaps defensively) to its roots in
est Charter promised that the King would not interfere with British law.37
commoners’ rights to graze animals, forage, plant crops, and
collect lumber on open lands subject to Forest Law.29 Nota- B. Reception in the United States
bly, this law still governs the New Forest territory in southern
England.30 While these provisions do not necessarily follow The principle of sovereign authority over submerged lands
from the Justinian references to common property in air, was received in the United States through the individual
water, and coastlines, they do express an early affirmation of states’ reception of British common law, and it began mak-
what would develop into more modern public trust principles ing appearances in litigation in the early 19th century.38 The
of public rights in natural resource commons. American version of the doctrine expanded to embrace not
only the submerged lands beneath coastal tidelands, those of
3. British Common Law principal value in Britain, but also those under other large
navigable waterways to which there were no true British ana-
Early British common law also made reference to public logs, including America’s Great Lakes and enormous rivers.39
trust principles in a series of cases and authorities affirming In this way, the American public trust doctrine developed
sovereign authority over submerged tidelands.31 In the 1611 beyond its British origins, although early American cases fre-
Royal Fishery of River Banne case, the Kings Bench held that quently referred back to Roman and English common law
while the beds of nonnavigable waterways could be privately for support. This section reviews the reception of the doc-
held, navigable waters were owned by the sovereign for public trine by individual states in their common law and constitu-
use.32 Sir Matthew Hale, in his renowned 1670 Treatise on tions, and its recognition by the Supreme Court in Illinois
English Maritime Law later described sovereign ownership of Central Railroad v. Illinois.40
tidelands in his account of the three different kinds of coastal
land: (1) that under the royal right (or police power); (2) that 1. American Common Law
available for public navigational access; and (3) that which
was privately owned.33 In the 1821 case of Arnold v. Mundy, one of the first to refer
Critics of this conventional historical account, including to the public trust doctrine’s Roman and English roots, the
Prof. James Huffman, have pointed out that unlike contem- Supreme Court of New Jersey quoted Justinian and the vari-
porary statements of the public trust doctrine, Chapter 23 of ous limitations on the English Crown in holding that the
land and resources beneath navigable water—here, oys-
26. Magna Carta, Chapter 23 (Eng. 1215). See also Michael C. Blumm & Court- ter beds—were common property.41 The plaintiff property
ney Engel, Proprietary and Sovereign Public Trust Obligations: From Justinian
and Hale to Lamprey and Oswego Lake, 43 Vt. L. Rev. 1, 8–9 (forthcoming owner had purchased a farm adjacent to a navigable river,
2019) (discussing the implementation of Justinian public trust principles in where he planted oysters and staked off the resulting bed.42
the Magna Carta). He subsequently sued a defendant for taking oysters from
27. Magna Carta, Chapter 33 (Eng. 1215). See also Blumm & Courtney Engel,
supra note 26, at 9 (discussing the implementation of Justinian public trust this bed, but the defendant claimed that he and all citizens
principles in the Magna Carta). of the state had the right to take oysters where they would be
28. Magna Carta, Chapter 12 (Eng. 1217). See Sarah Nield, The New Forest: An- naturally present in a navigable riverbed.43 The Chief Justice
cient Forest and Modern Playground, in 2 Modern Studies in Property law,
287, 294 (E. Cooke, ed. Hart 2003); Anne Bottomley, Beneath the City: The determined that the plaintiff must have title to the oyster
Forest! Civic Commons as Practice and Critique, Vol. 5(1) Birkbeck L. Rev. 1
(2018). Nicholas Robinson, The Forest Charter and the Public Trust, 10 Geo.
Wash. J. Energy & Envtl. L. (forthcoming 2019).
29. See Dr. John Langton, The Charter of the Forest of King Henry III, in Forests 34. Huffman, supra note 15, at 21.
and Chases of England and Wales, c. 1000 to c. 1850, St. John’s College 35. Ruhl & McGinn, supra note 16.
Research Center, http://info.sjc.ox.ac.uk/forests/Carta.htm [https://perma.cc/ 36. Robinson, supra note 28.
KLP2-M2A4]. 37. Id.
30. See Nield, supra note 28, at 303. 38. For additional historical account of the early American public trust doctrine,
31. See Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently see Ryan, supra note 4, at Chapter II.
Public Property, 53 U. Chi. L. Rev. 711, 727–30 (1986). 39. See Ill. Cent. R.R. v. Illinois, 146 U.S. 387, 453 (1892).
32. 80 Eng. Rep. 540–43 (K.B. 1611). 40. 146 U.S. 387 (1892).
33. Matthew Hale, A Treatise De Jure Maris et Brachiorum Ejusdem, in Stuart 41. 6 N.J.L. 1, 71–72 (1821).
A. Moore, A History of the Foreshore and the Law Relating Thereto 42. Id. at 65–66.
370−72 (1880). 43. Id.
bed to prevail in his suit,44 but that he could not satisfy this [I]t would require plain language in these letters-patent [to
requirement, as his private rights extended only as far as the the Duke of York] to persuade . . . [the Court] that the pub-
landward side of the high-water mark.45 lic and common right of fishery in navigable waters, which
The Chief Justice found that the land under navigable has been so long and so carefully guarded in England, and
water is considered common property,46 and that proprietors which was preserved in every other colony founded on the
have no more power than the English crown to convert lands Atlantic borders, was intended, in this one instance, to be
beneath them into private property.47 Referencing Justinian, taken away.52
the Chief Justice characterized common property as “the air,
the running water, the sea, the fish, and the wild beasts,” Three years later, in Pollard v. Hagan, the Supreme Court
and held that title to these were in the sovereign, to “be held, reached a similar conclusion on the basis of the same prin-
protected, and regulated for the common use and benefit.”48 ciples in resolving a dispute over the ownership of submerged
Writing with strong tones of judicial gravity, he concluded: lands in Alabama and Georgia.53 The Court rejected an argu-
ment that territory in Alabama that had originally been ceded
The sovereign power itself, therefore, cannot, consistently by Spain should not be subject to the British rule of sover-
with the principles of the law of nature and the constitution eign ownership of submerged lands.54 Instead, it determined
of a well ordered society, make a direct and absolute grant that when Alabama was admitted to the Union, it entered
of the waters of the state, divesting all the citizens of their on “equal footing” with neighboring states, such as Geor-
common right. It would be a grievance which never could be gia, and thereby succeeded to all the rights of sovereignty,
long borne by a free people.49 jurisdiction, and eminent domain as these other states.55 The
Court held that the land under navigable water was reserved
With these words, he became the first American jurist to to the states, and that new states have the same sovereignty
tie the public commons element of the public trust doctrine and rights over navigable waters as did the original states.56
to the orderly functioning of democracy. By the late 19th century, it was well established among
American courts that the state holds navigable waterways
in trust for the public.57 The Supreme Court made its most
2. Affirmation by the U.S. Supreme Court
definitive treatment of the public trust doctrine in Shively
The Supreme Court first formally invoked the public trust v. Bowlby,58 an 1894 case quieting title to submerged lands
doctrine in 1842, in the case Martin v. Waddell, where it beneath a state-sanctioned wharf on the Columbia River in
affirmed the sovereign ownership of navigable waters and Oregon.59 The Court traced the detailed history of the doc-
their submerged resources, resolving another dispute over trine from British law through the American Revolution and
oyster beds.50 The Court held that proprietors claiming title forward since then, affirming that:
to New Jersey oyster beds under a charter originally dating [T]hese submerged lands, of singular value for commerce,
back from the British King Charles to the Duke of York navigation, and fishery, were held by the English King for
could not prevail, because even a royal grant was subject to the benefit of the public, [and] those rights survived the set-
public trust rights of common fishery for the common peo- tlement of the colonies, and upon the American Revolution,
ple.51 In defending its conclusion, the Court referenced the became vested in the original States.
presence of the doctrine in English law as far back as the
Magna Carta: When territory came into the U.S. by whatever means, the
[T]he lands under the navigable waters [within the limits same public ownership of submerged lands below the mean
of the charter] passed to the grantee, as one of the royalties high-water mark passed to the U.S., held ‘for the benefit of
incident to the powers of government; and were to be held the whole people and in trust’ for the new states that would
by him in the same manner, and for the same purposes, that be carved from this territory.60
the navigable waters of England and the soils under them,
are held by the Crown. In so doing, the Supreme Court affirmed the general prov-
enance of American lands submerged in navigable waters
The policy of England since Magna Carta—for the last six (below the mean high-water mark) as owned by the sovereign
hundred years—has been carefully preserved to secure the and held in trust for the benefit of the public.
common right of piscary for the benefit of the public.
52. Id. at 41314.
53. 44 U.S. 212 (1845).
54. Id. at 22829.
44. Id. at 9–10. 55. Id. at 223, 22829.
45. Id. at 67. 56. Id. at 230.
46. Id. at 71–72. 57. See Michael C. Blumm, Public Property and the Democratization of Western Wa-
47. Id. at 78. ter Law: A Modern View of the Public Trust Doctrine, 19 Envtl. L. 573, 580
48. Id. at 71. (1989).
49. Id. at 78. 58. 152 U.S. 1, 57 (1894).
50. 41 U.S. 367 (1842). 59. Id.
51. Id. at 407‒18, 423. 60. Id. at 14–15, 49.
3. Illinois Central Railroad v. Illinois there might have been a legal problem if there really had been
a legal gift, the state argued that in this case, there was not
Although Shively v. Bowlby was the Supreme Court’s most an actual problem, because—thanks to the public trust doc-
definitive treatment of the public trust doctrine, its most trine—there had not been any actual gift.70 The state effec-
famous statement of the doctrine came from a decision issued tively acknowledged that it may have looked as though the
two years earlier, the 1892 case of Illinois Central Railroad v. previous legislature had conveyed the bed of Chicago Harbor
Illinois.61 There, the Court provided a crisp statement of the to this private party, but argued that in fact, no such thing
traditional public trust principles of American law: had happened.71 The bed of Chicago Harbor was subject to
the public trust doctrine—held by the state in trust for the
[T]he State holds the title to the lands under navigable public—and therefore, as a matter of law, could not be con-
waters . . . in trust for the people of the State, that they veyed this way.72
may enjoy the navigation of the waters, carry on commerce The state argued that the previous legislature had lacked
over them, and have liberty of fishing therein freed from the the power to make a gift of lands encumbered by the public
obstruction or interference of private parties.62 trust.73 Such an act would be ultra vires—literally, beyond the
In this seminal decision, the Court not only affirmed authority of the state—at least without taking more heroic
sovereign authority over submerged lands, but clarified the measures to clarify why such an unusual conveyance actu-
nature of its obligation to the public as trustee of those ally did accord its public trust obligations.74 As a result, there
lands.63 And indeed, the Illinois Central case demonstrates was no actual gift, and accordingly no harm in repealing it,
just how powerful the public trust obligation can be. and therefore, no legal foul. The Supreme Court agreed with
To give a sense of the enormous power packed in this the state’s argument, affirming the public trust doctrine as a
seemingly simple doctrine, consider the striking facts of foundational element of state natural resources law.75
the case. Boiling the story down to its core: in 1869, the In doing so, Illinois Central enshrined the public trust
state legislature conveyed the bed of Chicago Harbor—the doctrine among what later Fifth Amendment takings juris-
most valuable submerged lands in all of Lake Michigan— prudence would refer to as the “background principles” of
to a private railroad, presumably to spur economic devel- state common law.76 In the early 1990s, the Supreme Court
opment.64 The people of Illinois were dubious. While they clarified that takings liability applies whenever state regula-
hoped economic development would eventually confer pub- tion obstructs all economically viable use of private property,
lic benefits, the gift smacked of patronage and cronyism, no matter what public interests are at stake—unless the chal-
and it generated considerable public outrage.65 When both lenged regulation is already among the “background prin-
the Chicago Tribune and the Chicago Times condemned ciples” of state property law that limit an owner’s reasonable
the conveyance, legislative support for the deal began to expectations about how they should be able to use their prop-
collapse, and the Illinois House and Senate created com- erty, such as the common law of nuisance.77 The Court’s old
mittees to investigate the possibility of corruption.66 When recognition in Illinois Central that the public trust doctrine is
the legislative session finally turned over, one of the new a foundational element of state law has renewed importance
legislature’s first acts was to repeal the old legislature’s gift since its newer takings jurisprudence expanded potential
to the railroad.67 Now the railroad was the outraged party,
and this famous litigation ensued. 70. Ill. Cent. R.R., 146 U.S. at 439.
In court, the railroad argued that the new legislature 71. See id. at 439.
lacked the authority to repeal the Chicago Harbor convey- 72. See id. at 439, 453.
73. See id. at 453 (“The trust devolving upon the State for the public, and which
ance made by the prior legislature.68 The conveyance was can only be discharged by the management and control of property in which
extremely valuable, and ordinarily, neither the government the public has an interest, cannot be relinquished by a transfer of the property.
nor any other owner can simply “take back” a thing of value The control of the State for the purposes of the trust can never be lost. . . .”).
74. Id.
this way.69 However, the state defended itself by deploying 75. Id.
public trust principles as a novel legal shield. Conceding that 76. See Erin Ryan, Palazzolo, The Public Trust, and the Property Owner’s Reasonable
Expectations: Takings and the South Carolina Marsh Island Bridge Debate, 15 Se.
Envtl. L.J. 121, 123 (analyzing how the public trust doctrine operates as a
61. 146 U.S. 387 (1892) [hereinafter Ill. Centr. R.R.]. background principle of law that can constrain the reasonable expectations of
62. Id. at 452. a property owner alleging a taking); id. at 137–40 (2006) (discussing use of the
63. Ryan, The Historic Saga, supra note 3, at 568. public trust doctrine to defend takings claims by defusing the reasonableness
64. Ill. Cent. R.R., 146 U.S. at 438–39 (making “a grant by the State, in of claimants’ expectations). See also John D. Echeverria, The Public Trust Doc-
1869, of its right and title to the submerged lands, constituting the bed trine as a Background Principles Defense in Takings Litigation, 45 U.C. Davis L.
of Lake Michigan”). Rev. 931, 931–34 (2012) (analyzing use of the doctrine as a takings defense
65. Joseph D. Kearney & Thomas W. Merrill, The Origins of the American Public in light of two California cases that did not allow it); J. Peter Byrne, The Pub-
Trust Doctrine: What Really Happened in Illinois Central, 71 U. Chi. L. Rev. lic Trust Doctrine, Legislation, and Green Property: A Future Convergence?, 45
799, 805–06, 840–42 (2004). U.C. Davis L. Rev. 915, 916 (2012) (suggesting that the doctrine be used as a
66. Id. (describing public outrage over the conveyance); id. at 889–90 (describing defense to innovative regulatory takings claims and to “sustain environmental
legislative committees created to investigate potential corruption). legislation against judicial hostility”). But see Barton H. Thompson Jr., Judicial
67. Id. at 911 (indicating the legislative turnover that followed); Ill. Cent. R.R., Takings, 76 Va. L. Rev. 1449, 1532–33 (1990) (criticizing use of the doctrine
146 U.S. at 449 (“On the 15th of April, 1873, the legislature of Illinois re- to avoid just compensation for what otherwise looks like a taking).
pealed the act.”). 77. Lucas v. S.C. Coastal Comm’n, 505 U.S. 1003, 1027–30, 22 ELR 21104
68. Ill. Cent. R.R., 146 U.S. at 438–39; 450–51. (1992). See also Palazzolo v. Rhode Island, 533 U.S. 606, 626–30, 32 ELR
69. Indeed—as any self-respecting toddler would know, “No take backsies!” 20516 (2001).
takings liability for environmental regulations that interfere within the United States,84 even where the doctrine is also
with economic use.78 The doctrine is increasingly invoked part of state common law.85 Some constitutionalized versions
by state and municipal parties defending takings claims look very similar to the common-law statement of the public
against regulations involving construction on tidelands and trust doctrine affirmed in Illinois Central. For example, Flor-
wetlands, public access to waterways, and interference with ida’s Constitution includes a provision that recognizes public
water rights. So far, most cases have affirmed the doctrine as ownership of critical water commons and confers traditional
a defense to takings claims in these circumstances, including protections for submerged lands beneath navigable waters:
decisions in New Jersey, South Carolina, and the U.S. Court
of Appeals for the Ninth Circuit,79 but the Federal Court of The title to land under navigable waters, within the bound-
Claims has rejected the background principle defense.80 aries of the state, which have not been alienated, including
More importantly, perhaps, Illinois Central demonstrates beaches below mean high water lines, is held by the state by
that the public trust doctrine functions not only as a grant of virtue of its sovereignty, in trust for all the people.86
affirmative state authority over submerged lands, but also as
a limit on state authority with regard to the management of Alternatively, some state constitutions have taken a more
those lands, because the state is required to manage them as modern approach, applying public trust principles to addi-
trustee for the public benefit.81 The public, as the beneficiary tional resources, or expanding protections for specific pur-
of this trust relationship, is entitled to call the state to account poses. For example, Article I, Section 27 of the Pennsylvania
for errant management choices in the courts. If members of Constitution states:
the public believe the state has failed its obligations as trustee,
they can sue. Over the years, as plaintiffs across the country
The people have a right to clean air, pure water, and to the
have litigated to vindicate and define public trust obligations,
preservation of the natural, scenic, historic and esthetic
the doctrine has developed differently from one state to the
values of the environment. Pennsylvania’s public natural
next. Some states protect different resources under the doc-
resources are the common property of all the people, includ-
trine and some assign different levels of protection to com-
ing generations yet to come. As trustee of these resources,
mon trust resources,82 but at a minimum, most share the
the Commonwealth shall conserve and maintain them for
common principle of sovereign authority over lands beneath
navigable waters held in trust for the public.83 the benefit of all the people.87
4. State Constitutions Pennsylvania’s super-statutory public trust doctrine,

known as the Environmental Rights Amendment to the
Finally, it is worth noting that public trust principles have state constitution, recently played a pivotal role in a spec-
been incorporated into a number of state constitutions tacular legal debate over the regulation of hydraulic fractur-
ing (fracking), which is commonly used to extract natural
gas from the rich Marcellus Shale resources of the state.88 In
a move that surprised commentators, a plurality of the Penn-
78. See, e.g., Echeverria, supra note 76; Richard M. Frank, The Public Trust Doc- sylvania Supreme Court invoked the doctrine sua sponte to
trine: Assessing Its Recent Past & Charting Its Future, 45 U.C. Davis L. Rev. 665, overturn a state statute that had prevented municipalities
682–84 (2012).
79. Esplanade Properties, LLC v. City of Seattle, 307 F.3d 978 (9th Cir. 2002) from regulating the location of fracking operations through
(affirming the city’s refusal to allow construction of residences on an elevated zoning.89 A few years later, a clear majority of the same court
platform above tidelands, because the public trust doctrine vitiated any en- confirmed that Pennsylvania is obligated to manage its state
titlement by the owner to build there); McQueen v. S.C. Coastal Council,
580 S.E.2d 116 (S.C. 2003) (holding that the public trust doctrine properly parks and forests, including the oil and minerals therein, as
blocked tidelands development without compensation, even when the lands at a trustee in accordance with the public trust principles of
issue became submerged after the owner took title); Nat’l Ass’n of Homebuild- the Environmental Rights Amendment.90 They reasoned
ers v. New Jersey, 64 F. Supp. 2d 354 (N.J. 1999) (rejecting a takings challenge
to a state agency rule requiring developers of waterfront property to provide that the clear language expressly affirms both the right of the
walkways along the water, because the public trust doctrine prevents owners
from claiming any entitlement to exclude).
80. Casitas Mun. Water Dist. v. United States, 543 F.3d 1276 (Fed. Cir. 2008)
(dismissing a takings claim by a California irrigator required to create fish
passage lanes to satisfy the Endangered Species Act, but stating in dicta that 84. Ryan, The Historic Saga, supra note 3, at 572−73. See also Barton H. Thompson
the public trust doctrine would not have barred the claim); Tulare Lake Basin Jr., Environmental Policy and State Constitutions: The Potential Role of Substan-
Water Dist. v. United States, 49 Fed. Cl. 313 (2001) (in an opinion by the tive Guidance, 27 Rutgers L.J. 863, 866 (1996) (“[T]he ‘public trust’ doctrine
same judge as Casitas, rejecting the state’s public trust “background principle” plays a constitutional role in most states even though less than a handful of
defense against a takings claim by California irrigators after water delivery un- states refer to the trust in the constitution itself.”).
der a state contract was temporary suspended while the state complied with 85. Klass, supra note 14, at 714.
restrictions under the Endangered Species Act). 86. Fla. Const. art. X, § 11.
81. Ryan, The Historic Saga, supra note 3, at 571, 574. 87. Pa. Const. art. I, § 27.
82. See Ryan, supra note 4, at Chapter VIII (The Evolving PTD) (describing differ- 88. John C. Dernbach, The Potential Meanings of a Constitutional Public Trust, 45
ent versions of the doctrine in different U.S. states). For example, most states Envtl. L. 463, 464 (2015).
protect public access to submerged lands below the high water mark, but New 89. Robinson Township v. Commonwealth, 83 A.3d 901, 43 ELR 20276 (Pa.
Jersey protects access to dry sand beaches as well. Matthews v. Bay Head Imp. 2013).
Ass’n, 471 A.2d 355, 363 (N.J. 1984). 90. Pa. Envtl. Def. Found. v. Commonwealth, 161 A.3d 911, 47 ELR 20081 (Pa.
83. See Ryan, supra note 4, at Chapter VIII (The Evolving PTD). 2017).
people to enjoy these public natural resources and the Com- Eastern states generally follow a modern version of the origi-
monwealth’s obligation to maintain them.91 nal British doctrine of “riparian rights,” which assigns cor-
Constitutionalized versions of the doctrine have thus pro- relative rights for reasonable use of water resources among
vided additional means of protecting public trust resources all riparians along a watercourse.97 Under the riparian rights
and expanded recognition for new public trust values doctrine, reasonableness is contextual, and generally deter-
beyond those traditionally protected at common law. How- mined by the total set of individual demands for the water.98
ever, scholars like Alexandra Klass have expressed concerns Many riparian rights jurisdictions have modernized the doc-
that the constitutionalization of public trust principles may trine to de-privilege riparian ownership, allowing water to be
displace common-law versions of the doctrine, undermining exported from the riparian tract and treating all users under
the further development of public trust principles through the same rubric for assigning claims.99
traditional common-law processes.92 Some states, such as In most respects, however, both traditional and modern
Idaho, have committed the public trust doctrine to statute riparian rights regimes take a public commons approach
specifically to prevent the further development of the com- to allocating the resource. These laws treat the water sub-
mon-law doctrine.93 ject to allocation as a public commons or a common pool,
allocating correlative rights in water in which users’ rights
C. The Law of Private Water Allocation are limited by the rights of other users.100 As a rule, every-
body has to share.101 For example, in 1888, the Connecticut
This introduction to the public trust doctrine reveals it as a Supreme Court in Mason v. Hoyle enjoined one mill owner
public commons-based theory of public rights and respon- from impounding a stream to the detriment of other down-
sibilities with regard to navigable waterways, and perhaps stream mill operators.102 Emphasizing the reciprocal nature
other critical natural resources.94 However, at least when of rights and duties among riparian claimants, the court
applied to American waterways, the public trust doctrine is articulated the five core principles for “reasonably” allocat-
inevitably destined to collide with a wholly separate body of ing water under the common-law “reasonable use” doctrine
law, and one that is often based on a contrasting theory of of riparian rights:
private rights. The law of water allocation, by which rights
are granted for the use or extraction of water from public (1) All riparians have an equal opportunity to use the
commons waterways, enables individuals and groups to claim stream;
water for specific private purposes. Especially in the western (2) No owner may use his own property so as to injure
United States, these allocation laws are generally based on a another;
privatization model.95
The problem becomes immediately obvious: the water (3) Adjudicators should consider the character and capacity
governed under both sets of laws is, after all, the same exact of the stream;
water. The water to which individuals and other entities can (4) The burden of foreseeable shortages should be allocated
obtain private rights of use under the law of water alloca- fairly among all riparians; and
tion is the very same water that makes up the waterways pro-
tected by the public trust doctrine. Yet, these two bodies of (5) Customary practices provide a foundation for evaluat-
law—the public trust doctrine and the law of private water ing “reasonableness.”103
allocation—are doctrinally orthogonal to one another. Each
developed independently of the other, as though they have Modern riparianism jurisdictions continue to apply the cor-
neither a legal nor a substantive relationship at all.96 relative spirit of reasonable use riparianism in considering
the interests of all claimants on a waterway before assign-
ing definitive rights to any. For example, in the 2005 case
1. Riparian Rights of Michigan Citizens for Water Conservation v. Nestle Waters
Like the public trust doctrine, there is regional variation in North America, the Michigan Court of Appeals enjoined
the law of private water allocation. Water allocation is a fea- some—but not all—of the Nestle Corporation’s claims
ture of state law, and there is a notably different valance to to withdraw water from a stream that also served boating,
water allocation law in the eastern and western United States.
97. See Christine Klein et al., Modernizing Water Law: The Example of Florida, 61
Fla. L. Rev. 403, 406 (2009):
91. Id. at 916. The wetter eastern states . . . view the right to use water as an attribute
92. Klass, supra note 14, at 699. of the ownership of riparian land. This is primarily a torts regime,
93. Idaho Code tit. 58, ch. 12 § 58-1201–1203 (1996) (Chapter 12. Public Trust prohibiting one riparian landowner from inflicting unreasonable harm
Doctrine). The Idaho example is discussed fully infra notes 266–71. Klass, upon another. In contrast, the arid western states historically have
supra note 14, at 718–19. followed the prior appropriation doctrine, protecting the right to use
94. See Michael C. Blumm & Mary Christina Wood, The Public Trust Doc- water according to temporal priority of use.
trine in Environmental and Natural Resources Law (2013) (discussing 98. Id. at 407.
application of the public trust doctrine to other resources, including wildlife 99. Ryan, The Historic Saga, supra note 3, at 576.
and atmospheric resources). See also Juliana v. United States, 217 F. Supp. 3d 100. Id.
1224, 46 ELR 20072 (D. Or. 2016). 101. Klein et al., supra note 97, at 407.
95. Ryan, The Historic Saga, supra note 3, at 576−78. 102. 14 A. 786 (Conn. 1888); 56 Conn. 255 (1888).
96. Id. at 576. 103. Id.
swimming, fishing, wildlife, and aesthetic purposes.104 The before new rights are assigned, but in most respects, the heart
court emphasized its responsibility to fairly allocate water to of the analysis remains the traditional rules of prior appro-
preserve as many different uses of a waterway as possible.105 priations.113 Many jurisdictions have also provided greater
statutory protections for instream flow values, mitigating
2. Prior Appropriations the enormous pressure to withdraw from the stream in order
to receive a legally protected water right—but even so, very
Most states in the American West, however, allocate water few states treat these the same way they do conventional
rights under an appropriative rights regime based on priority appropriations, and only three allow private parties to hold
in time—essentially ‘first come, first served.’106 Under this them.114 A handful of especially confusing states, including
pure “prior appropriations” doctrine, rights to appropriate California, allocate water under both riparian and appropria-
water from the public commons are not correlative, and ear- tive rights regimes simultaneously.115
lier claims are not diminished by the needs of later-comers.107 Accordingly, while the public trust doctrine requires the
Whoever is the first to take a defined quantity of water out state to protect navigable waterways in trust for the public,
of the watercourse and put it to “beneficial use”—defined the doctrines of private water allocation—especially West-
as domestic or economically viable use—can claim a right ern prior appropriations—govern how the state gives away
to continue withdrawing the same amount of water for the the waters within them. And while the public trust doctrine
same purpose, potentially indefinitely, and excluding all oth- and riparian rights doctrine are grounded in a public com-
ers who come later.108 mons theory of waterways, emphasizing correlative rights
In contrast to riparian rights, the prior appropriation doc- and shared duties, the prior appropriations doctrine tends
trine takes a privatization approach to resource allocation— toward a pure privatization model—first in time rights to
the very opposite of the public commons approach.109 Not exclude others.
only does the doctrine reward early movers, granting them a For these reasons, a conflict between the public trust
protectable right to exclude those who seek to establish claims doctrine and private water allocation law was inevitable,
afterward, it rewards those who fully remove the water they especially in the arid West. There, state law applies a priva-
claim from the waterway, leaving none behind for other uses. tization approach to the allocation of water rights for water
At least historically, an appropriator must literally withdraw taken from waterways at the very same time that it applies a
water from the stream to perfect a claim; appropriative rights public commons approach to protect the underlying water-
were not available for instream uses like fishing, swimming, ways—which are composed of the very same water.116 These
for wildlife, or aesthetic purposes. contrasting approaches set in motion a legal collision that
For example, in the 1882 case of Coffin v. Left Hand was inevitable—and the conflict erupted most spectacularly
Ditch Co., the first case to formally apply the new doctrine of at Mono Lake.
appropriative rights, the Colorado Supreme Court affirmed
the rights of an irrigator removing water from the stream II. Building the Los Angeles Aqueduct
over the claims of a downstream riparian farmer.110 The irri-
gator was the first to actually remove water from the water- The Mono Lake case reached the California Supreme Court
course, creating a right to continue appropriating that water in the early 1980s, but the crisis that led to the case began
for himself regardless of the needs of a downstream user who almost a century earlier, when the growing city of Los Ange-
had failed to perfect an appropriative claim.111 Similarly, in les first began to run out of water.
Empire Water & Power v. Cascade Town, the U.S. Court of Potable water has long been considered “wet gold” in Los
Appeals for the Eighth Circuit applied the Colorado prior Angeles, the second most populated desert city on Earth.117
appropriation doctrine to hold that the defendant hydro-
electric power company could continue to divert water to its
reservoir, even though it would fully dewater the Cascade 113. See, e.g., Shokal v. Dunn, 707 P.2d 441 (Idaho 1985).
114. Barton Thompson et al., Legal Control of Water Resources 216 (5th
Creek Canyon and waterfalls around which the plaintiff ed., 2013) (noting that while most states now allow some sort of appropria-
resort town economy was centered.112 tion to protect instream flows, only Alaska, Arizona, and Nevada allow private
Some modern appropriative rights jurisdictions have entitles to claim them).
115. In California, the owners of land abutting watercourses hold some traditional
added additional statutory criteria, including a public inter- riparian rights, which coexist with the more abundant appropriative rights that
est analysis, that require consideration of additional factors are unconnected to riparian land ownership but subject to similar requirements
of reasonable and beneficial use. See Thompson et al., supra note 114, at 200
(discussing California’s hybrid system of water law); see also Cal. Const. art.
104. 709 N.W.2d 174, 194−95 (Mich. Ct. App. 2005). X, § 2 (confirming the protection of riparian rights and discussing the require-
105. Id. ment of beneficial use). However, prior appropriations remains the defining
106. Klein et al., supra note 97, at 406 (“[T]he arid western states historically have doctrinal approach in the state. See Thompson et al., supra note 114, at 208
followed the prior appropriation doctrine, protecting the right to use water (explaining how the doctrines interact with one another in California); see also
according to temporal priority of use.”). John Franklin Smith, The Public Trust Doctrine and National Audubon Society
107. Id. at 408. v. Superior Court: A Hard Case Makes Bad Law, or the Consistent Evolution of
108. Id. at 408–09. California Water Rights, 6 Glendale L. Rev. 201, 207–09 (1984) (outlining
109. Ryan, The Historic Saga, supra note 3, at 576–77. the history of California’s dual water rights system).
110. 6 Colo. 443 (1882). 116. Klein, supra note 97, at 406.
111. Id. 117. Ryan, The Historic Saga, supra note 3, at 578. Among desert cities worldwide,
112. 205 Fed. 123 (1913). only the Egyptian city of Cairo boasts a larger population. See Marc Reisner,
Located on the southern California coast, Los Angeles is one A. The Owens Valley
of the largest cities in the United States, with a metropolitan
population of about ten million people.118 The Los Angeles The Los Angeles Aqueduct now ends at Mono Lake, but
River runs through the city, now mostly encased in concrete, that was not always so. The first place the city looked to for
but has approximately enough water to supply a population water was the Owens Valley, an unlikely oasis in the south-
of only a few hundred thousand—a pretty large overdraft.119 ern California desert, roughly halfway between Los Angeles
For that reason, moving water to Los Angeles has been a Cal- and Mono Lake. The first few chapters of this story center
ifornia state priority since the turn of the last century, when on the Owens Valley and the devastating impacts that water
groundwater supplies began to run out.120 diversions posed for the local environment and economy
Los Angeles lies in the arid bottom of the state, far from there over the first half of the 20th century. I have previously
the many Sierra Nevada rivers that furnish northern Cali- chronicled these chapters in vivid detail,126 because they
fornians with more abundant water resources.121 However, are of cinematic proportions (indeed, this part of the story
three snaking aqueducts converge at the city, delivering redi- inspired the film noir classic, Chinatown,127 starring Jack
rected water to the large population centers in and around Nicholson). While this Article will not re-tell the full Owens
Los Angeles.122 The Los Angeles Aqueduct, tapping the east- Valley story that is detailed in prior work,128 I’ll give just
ern slope of the Sierra Nevada and Tehachapi Mountains, enough overview to provide needed context for the Mono
runs four hundred miles north from Los Angeles all the way Lake chapters that follow.
to Mono Lake, which is due east of San Francisco, near the The ten-cent overview is that state and city leaders were
California-Nevada state line.123 Today, it is flanked by the seeking new water supplies for Los Angeles, and they real-
Colorado River Aqueduct, which brings water from states to ized that there was water to be had some two hundred miles
the East, and the California Aqueduct, which taps the wet- to the north, in a valley capturing rainwater from two sur-
ter, western slope of the Sierra Nevada Range. But the Los rounding mountain ranges.129 The Owens Valley lies in a
Angeles Aqueduct is the oldest, the most colorful historically, high-elevation desert, carved out by the improbably robust
and doubtlessly the most notorious of the three,124 and with flow of the Owens River. The river winds south between the
it begins our story. White Mountains to the east and the Sierra Nevada to the
What follows in Parts II and III summarizes the Mono west, culminating in the vast but shallow Owens Lake.130
Lake story, told in even greater detail elsewhere,125 to bridge A thriving agricultural community dependent on the river
the historical and doctrinal material of Part I with further developed alongside it, the only sweet water in the region.131
analysis of public trust issues and new litigation develop- Los Angeles engineers realized that they could divert this
ments in Parts IV and V. This part recounts the arrival of water south to Los Angeles using only the force of gravity,
the Los Angeles Aqueduct, first in the Owens Valley and rather than relying on the kind of expensive pumps that
then the Mono Basin. It introduces the Mono Basin ecosys- would be required to move water from elsewhere.132 How-
tem and reviews the devastating impacts of water diversions ever, city leaders accurately predicted that the community
through the Aqueduct to Los Angeles. would be unlikely to just hand the water over when Los
Angeles announced its interest. Instead, they decided to
trick local community members into giving up their coveted
water rights.133
Cadillac Desert: The American West and Its Disappearing Water 60 Agents for the city approached Owens Valley farmers
(New York: Viking Press, 1986). pretending to be farmers, and they gradually bought up
118. U.S. Census Bureau, State & County QuickFacts: Los Angeles County, California, most of the farmland and associated water rights surround-
https://www.census.gov/quickfacts/fact/table/losangelescountycalifornia,US/
PST045217 [https://perma.cc/2RCE-UQ6K]. ing the Owens River. When it was too late to stop them,
119. See Kai Ryssdal, The Aqueduct That Gave Rise to Los Angeles, Marketplace they started diverting all available surface water south to Los
(American Public Media), Mar. 31, 2015, http://www.marketplace.org/topics/ Angeles.134 When they needed still more water, they began
sustainability/big-book/aqueduct-gave-rise-los-angeles [https://perma.cc/8B5
M-XA7T] (“As early as 1894, the city faced severe water shortages. Engineers pumping ground water below their land and sent that south
estimated that natural sources serving the Los Angeles basin could support a as well.135 Before the local community had really figured out
population of 200,000 or so, in typical years.”); Reisner, supra note 117, at what was afoot, the vast majority of the region’s water was
61–62 (describing the Los Angeles River as the first local source of water and
how reliance on it became untenable as the population grew). being redirected to Los Angeles, and the Owens Valley was
120. Ryan, The Historic Saga, supra note 3, at 578.
121. See California: Physical Features, http://www.csun.edu/~cfe/maps/CA_Physi- 126. Id. at 580−89.
cal.pdf [https://perma.cc/H5K2-967Z]. 127. Chinatown (Paramount Pictures 1974).
122. See Cal. Nev. River Forecast Ctr., CNRFC Interactive Map Interface: Rivers, 128. See supra note 124.
http://www.cnrfc.noaa.gov (last visited Apr. 17, 2015). 129. Reisner, supra note 117, at 61–63.
123. See Louis Sahagun, “There It Is—Take It”: A Story of Marvel and Controver- 130. Id. at 61.
sy, L.A. Times, Oct. 28, 2013, http://graphics.latimes.com/me-aqueduct/ 131. Ryan, The Historic Saga, supra note 3, at 583.
[https://perma.cc/VJU5-NJDY] (describing the path and history of the 132. Id.
Los Angeles Aqueduct). 133. Eric Malnic, The Aqueduct: DWP Smoothes Out Rough Edges on the 74-Year
124. American Society of Engineers, First Owens River—Los Angeles Aqueduct, Old Engineering Marvel, L.A. Times (Oct. 18, 1987), http://articles.latimes.
ASCE.org, https://www.asce.org/project/first-owens-river-los-angeles-aque- com/1987-10-18/local/me-15046_1_los-angeles-river [https://perma.cc/7GMQ-
duct/ [https://perma.cc/S9LT-P2DP]. ZL5J].
125. For the full story, see Ryan, The Historic Saga, supra note 3, at 578–603; Ryan, 134. Id.
supra note 4, at Chapters III-V. 135. Id.
effectively divested of its water.136 Once the local farmers did lion years old, it is roughly tied with Lake Tahoe as the old-
figure things out, they were enraged; they famously dyna- est continuous lake in North America.145 Like Owens Lake,
mited the Aqueduct, and the National Guard was called in Mono Lake is a terminal lake, which means that water flows
to restore order.137 Headline-making drama ensued, but at in, but there is no way for the water to leave except by sur-
the end of the day, Los Angeles secured the water rights, the face evaporation.146 For those three million years, water car-
Owens River was diverted, and Owens Lake at its terminus rying trace elements and minerals has flowed into the basin
was drawn dry.138 and then evaporated off the surface, leaving those minerals
Today, there is an expansive salt sump where the majes- behind to form a hypersaline body comparable to parts of the
tic Owens Lake once anchored the valley and its wildlife, Great Salt Lake.147 As a result, the Mono Lake Basin is not
including vast populations of migratory birds that no longer only a very beautiful location, it is a unique ecosystem, the
appear.139 The Owens Valley tragedy is compounded by the site of important scientific research, and home to important
fact that the exposed lakebed is composed of fine alkali salts communities and cultures, including the Kutzadika’a Paiute
that are toxic to breathe. These very fine particulates are con- who have lived there for generations.148
stantly being churned up by the strong winds whipping off Mono Lake is part of a unique ecosystem. The lake is too
the vertical escarpment of the eastern Sierra Nevada, form- salty for fish to survive, so the enormous lake contains not
ing cancer-causing alkali dust storms.140 In fact, the Owens a single species of fish—but they are plentiful in the feeder
Valley often ranks as the most polluted place in the United creeks that carry snowmelt down from the adjacent Sierra
States by particulate matter standards.141 Nevada into the lake basin.149 Instead, the lake is home to
trillions of tiny brine shrimp, a species that exists only at
B. The Mono Lake Basin Mono Lake.150 Brine shrimp populate the lake so thickly that
if you took a coffee cup and scooped out some summer lake
Some forty years after the Aqueduct first began tapping the water, there could be as many as ten or even twenty shrimp
Owens Valley, Los Angeles leaders realized that the grow- in your cup.151 The lake is also home to hordes of tiny alkali
ing city still needed more water.142 They also realized that flies, which are tasty as pupae and have long been a dietary
there was a wealth of additional, unappropriated water in the staple of the local Kuzediaka’a Paiute community.152 The eco-
next watershed up from the Owens Valley, just two hundred system is thriving, but simple: the flies and shrimp survive
miles to the north—the Mono Lake Basin. This Section on the base of the lake’s food chain, benthic algae, and virtu-
briefly introduces the unique place that became the focus of ally everything else in the ecosystem—including the native
the famous public trust litigation in the Mono Lake case. people—survives by eating the flies and shrimp.153 There is
Mono Lake drains the eastern slope of the high Sierra not much stabilizing redundancy if any of the basic elements
Nevada crest, just east of Yosemite National Park.143 To call it are compromised.
a lake is almost a misnomer; it is more of an inland sea, twice Mono Lake is thus a giant bowl of shrimp soup, deli-
the size of the city of San Francisco, five times deeper than ciously garnished with alkali flies. As such, it attracts enor-
the Great Salt Lake in Utah, and three times saltier than the mous flocks of migratory birds making their way along the
Pacific ocean.144 Estimated to be between one and three mil- Pacific Flyway from as far north as the Arctic and as far
136. Id. (“Despite the outrage of Owens Valley farmers and the furor over Gen.
Otis’ potential profits, Los Angeles voters turned out on June 12, 1907, to
approve construction bonds by a margin of 10 to 1. Federal approval for the AS7M] (comparing the depths of the Great Salt Lake and Mono Lake). See
municipal project was won in Congress two weeks later.”). also John Hart, Storm Over Mono: The Mono Lake Battle and the
137. See Scott Harrison, Dynamite Attacks on the Los Angeles Aqueduct, L.A. Times, California Water Future 5–7 (1996) (Univ. Cal. Press 1996).
Feb. 6, 2013, http://framework.latimes.com/2013/02/06/los-angeles-aque- 145. See Hart, supra note 144; Tahoe Fund, Lake Tahoe Fun Facts, http://www.
duct-2/#/0 (last visited Apr. 17, 2015). tahoefund.org/about-tahoe/recreational-paradise/ [https://perma.cc/ZQ3U-
138. Ryan, The Historic Saga, supra note 3, at 586. X7ZH]; Genetic Science Learning Center, Univ. of Utah, Physical Character-
139. See Marith C. Reheis, Dust Deposition Downwind of Owens (Dry) Lake, istics of the Great Salt Lake, https://learn.genetics.utah.edu/content/gsl/physi-
1991–1994—Preliminary Findings, 102 J. Geophysical Res. (Atmospheres) cal_char/ [https://perma.cc/YFD7-Z2UE].
25999–26008 (1997) (describing the post-aqueduct deposits of minerals ac- 146. Cal. Dep’t of Water Resources, The Importance of the Salton Sea and
cumulated in Owens Lake over thousands of years). Other Terminal Lakes in Supporting Birds of the Pacific Flyway 1
140. Sarah Kittle, Great Basin Unified Air Pollution Control District, Survey of Re- (Dec. 2004), http://www.water.ca.gov/saltonsea/historicalcalendar/docs/Ter-
ported Health Effects of Owens Lake Particulate Matter, https://gbuapcd.org/ minalLakes.pdf.
District/Background/ReferenceLibrary/pmHealthEffects.html [https://perma. 147. See Hart, supra note 144, at 5–7; World’s Saltiest Bodies of Water, World
cc/5HMK-VU6Q]. Atlas, https://www.worldatlas.com/articles/the-world-s-most-saline-bodies-
141. U.S. Envtl. Prot. Agency, Owens Valley, CA Particulate Matter Plan, of-water.html [https://perma.cc/G3LD-CJUX] (noting salinity ranges of the
https://19january2017snapshot.epa.gov/www3/region9/air/owens/index.html Pacific Ocean at 3.5%, Mono Lake at 5-9.9%, and the Great Salt Lake at
[https://perma.cc/G5RH-7EKS] (describing Owens Lake as “the nation’s 5–27%).
worst particulate air pollution problem”). 148. See HART, supra note 144, at 22–24 (describing the traditional lifestyle and
142. Ryan, The Historic Saga, supra note 3, at 596. culture of the Kutzadika’a).
143. See Sahagun, supra note 123. 149. See id. at 16.
144. Compare Mono Lake Comm., Quick Facts, http://www.monolake.org/about/ 150. Mono Lake Comm., Brine Shrimp: Mono Lake’s Unique Species, http://www.
stats [https://perma.cc/PK4K-TT5M] [hereinafter Mono Lake Facts], with monolake.org/about/ecoshrimp [https://perma.cc/7HUT-D7VK].
U.S. Census Bureau, San Francisco County, California, https://www.census. 151. Ryan, The Historic Saga, supra note 3, at 590, 592–93.
gov/quickfacts/fact/table/sanfranciscocountycalifornia/PST045218 [https:// 152. Mono Lake, 658 P.2d 711; Brine Shrimp: Mono Lake’s Unique Species, supra
perma.cc/4SZ7-5QZ7] (noting San Francisco County’s land area is 46.87 note 150; Mono Lake Comm., Mono’s Alkali Fly the First Fly You’ll Ever Love,
square miles); Univ. of Utah, Physical Characteristics of Great Salt Lake, http:// https://www.monolake.org/about/ecoflies [https://perma.cc/SB88-G86B].
learn.genetics.utah.edu/content/gsl/physical_char/ [https://perma.cc/KD7W- 153. Ryan, The Historic Saga, supra note 3, at 591–92.
south as Latin America.154 The lake provides them a criti- C. The Mono Basin Extension
cal sanctuary during the vast desert expanse of their journey,
allowing them to replenish themselves before continuing on When I was a grunt-level Forest Service ranger at Mono
for many more hundreds of desert miles.155 Millions of indi- Lake, I lived in the Ranger Station Barracks at the foot
viduals from some three hundred species of birds come to of Lee Vining Canyon, the glacially carved route into the
the lake.156 One of the islands in the lake is the breeding High Sierra peaks at Tioga Pass. But practically across
ground for more than 85% of the California’s population of the street, there was an official and foreboding sign that
California gulls.157 The freshwater creeks that feed the lake warned, “City of Los Angeles—Private Property!” Indeed,
are also important parts of the ecosystem, providing criti- many decades before, Los Angeles had already managed to
cal regional fisheries, riparian habitat for wildlife, and local acquire much of the privately available land there, in order
cultural values.158 to secure the riparian rights associated with this land and
Just south of the lake is the youngest volcanic range lay claim to the remaining water in the Basin under the
in North America: the Mono Craters, a short chain of prior appropriations doctrine.166
10,000-feet-high volcanoes.159 These volcanoes are relatively The city accomplished this feat during the 1940s, in a
recent, and the chain ploughs right through the lake, creat- much less notorious way than it had acquired the Owens Val-
ing the black and white islands within it.160 The volcanically ley water rights. Unlike the Owens Valley story, there were
influenced chemistry and geology of the lake is so unusual no tricks or foul play, and no city agents masqueraded as
that it has been an important research destination for study- local farmers. Los Angeles simply announced its intentions
ing underwater volcanism, and NASA has even conducted to appropriate waters that had been flowing, hitherto wasted,
research at Mono Lake to imagine what life on other planets into the useless salt lake, with plans to export it for more pro-
with unusual terrestrial profiles might look like.161 ductive municipal use downstate.167 This was the easy part—
Unlike Los Angeles, however, the Mono Basin is not a the water flowing into the lake had never been diverted for a
major population center. The tiny town of Lee Vining is beneficial use cognizable under the doctrine of prior appro-
located on the western edge of Mono Lake, just below the priations, so it was, for all legal purposes, available for new
13,000-feet peaks of the High Sierra.162 The town was home claims by the first comer. And that comer just happened to
to only 300 year-round residents when I lived there, but there be the city of Los Angeles.
is some commercially valuable local industry. A nearby pum- City officials also began acquiring all riparian lands
ice mine harvests commercially valuable rock from the Mono whose owners might someday lay claim to Mono Basin
Craters.163 The brine shrimp plant on the western edge of the water. They accomplished this mostly by consensual sales,
lake harvests Mono Lake shrimp to be sold as freeze-dried but where there was resistance, they made it known that
fish food.164 But the most important regional industry of all they would invoke the powers of eminent domain that are
are the surrounding public lands, including national and statutorily available to California municipalities seeking
state parklands that bring hundreds of thousands of visitors additional water resources, even extraterritorially.168 Ulti-
to the Mono Basin each year from around the world, all to mately, the city did have to resort to eminent domain to
enjoy the stunning vistas, unique wildlife, fascinating geol- acquire the property from a few local holdouts, and it pre-
ogy, and cultural history of the area.165 vailed in subsequent law suits.169
In this way, Los Angeles was able to acquire most ripar-
ian rights in the Mono Basin and assert appropriative claims
154. Kevin Neal, TED Case Studies, The Los Angeles Aqueduct and the Owens to the remaining water flowing into Mono Lake.170 How-
and Mono Lakes (Mono Case), http://archive.today/jhRr [https://perma.cc/ ever, there was one additional obstacle before water could
LX3Q-NNR5].
155. Mono Lake Comm., Birds of the Basin: The Migratory Millions of Mono, http:// be sent south. Pursuant to California laws not yet in place
www.monolake.org/about/ecobirds [https://perma.cc/3LG7-JALJ]. when Los Angeles began taking water from the Owens Val-
156. See generally Mono Lake Facts, supra note 144. ley, the city also needed the State Water Resources Control
157. See generally id.
158. See generally id. Board to sanction the new withdrawals with a permit.171 Yet,
159. History: Evidence of Recent Eruptions, Mono Lake Comm, http://www.mono- the Owens Valley tragedy left the state water board genu-
lake.org/about/geovolcanic [https://perma.cc/JR6H-N73V]. inely torn about allowing the same situation to take place at
160. Id.
161. NASA, Discovery of “Arsenic-Bug” Expands Definition of Life, NASA Sci- Mono Lake. Water board officials had just seen this sad story
ence News, Dec. 2, 2010, http://science.nasa.gov/science-news/science-at- play out just a few hundred miles to the south. They worried
nasa/2010/02dec_monolake/ [https://perma.cc/VCA8-MWNC].
162. See Lee Vining, California, City-Data.com, http://www.city-data.com/city/
Lee-Vining-California.html (last visited Apr. 17, 2015). 166. Ryan, The Historic Saga, supra note 3, at 596−98.
163. See U.S. Bureau of Land Mgmt. Map of Mono Basin, available at http://www. 167. Id. at 594–95.
blm.gov/style/medialib/blm/ca/pdf/bakersfield/geology.Par.25066.File.dat/ 168. Id. at 597.
ovm07_geology_maps.pdf. 169. See also Andrew H. Sawyer, Changing Landscape and Evolving Law: Lessons
164. See, e.g., Mono Lake, 658 P.2d 719; Brine Shrimp: Mono Lake’s Unique Species, From Mono Lake on Takings and the Public Trust, 50 Okla. L. Rev. 311, 323–
supra note 150. 24 (1997).
165. See Peter Fimrite, Mono Lake Efforts May Be Undone by Park Closures, SF Gate, 170. Ryan, The Historic Saga, supra note 3, at 594−98.
July 24, 2011, https://www.sfgate.com/green/article/Mono-Lake-efforts-may- 171. See William R. Attwater & James Markle, Overview of California Water Rights
be-undone-by-park-closures-2353453.php (last visited Apr. 1, 2019) (describ- and Water Quality Law, 19 Pac. L.J. 957, 972–73 (1988) (noting that the
ing Lee Vining as a “community that relies on the 271,000 annual visitors who Water Commission Act required permits to establish new rights in previously
come to the area solely because of [Mono Lake]”). unappropriated water).
openly about the same devastating harms befalling the Mono Los Angeles was able to import between 12−20% of its water
Basin, and they even memorialized these concerns in their supply from the Mono Basin, four hundred miles away.182
final decision.172
Nevertheless, they granted the permits in full, conclud- D. The Impacts of Diversions in the Mono Basin
ing that under existing California water law, their hands
were tied.173 They believed that they had no choice but to Mono Lake had been slowly declining ever since the arrival
approve Los Angeles’ requested permits, because the city of the Aqueduct, but when Second Barrel was installed in
planned to put unappropriated waters to beneficial use— 1971, the lake began to decline much more quickly.183 In
and municipal use at that, the most privileged category of 1962, the lake had already lost twenty-five vertical feet from
beneficial use.174 The Board read the California Constitu- its original elevation before diversions began in the 1940s.184
tion and water statutes to require the facilitation of munici- After the Second Barrel went in, the lake lost nearly as much
pal access to needed water resources as their highest legal height in half the time. By the time of the litigation that fol-
obligation.175 Accordingly, the Board issued the permits lowed in the early 1980s, the lake had lost forty-five vertical
in 1940, although even as it did so, its members enshrined feet and half of its entire volume to water exports through
their grave hesitations in writing.176 the Aqueduct.185
With all legal approvals in place, the Los Angeles Depart- As the lake declined, limestone tufa towers that develop
ment of Water and Power (DWP), the agency charged with beneath the surface became exposed.186 These otherworldly
securing and delivering water to the city, set to work complet- geological structures form at the mouth of underground
ing the Mono Basin Extension of the Aqueduct. The Aque- springs, where calcium-rich fresh water meets the carbon-
duct would eventually extend to farthest reaches of the Mono ates suspended in the alkaline lake water, precipitating out
Basin mountain streams, and then shunt the water through as calcium carbonate and growing only as high as the water
an eleven-mile tunnel underneath the dormant Mono Cra- level.187 As the lake receded, the decline could be marked by
ters volcanoes that lay between Mono Lake and the upper how much tufa had become exposed above the surface. One
reaches of the Owens River. Infamously, construction of the famous cluster of human-height tufa towers near the north
Mono Craters tunnel famously cost one man’s life for each shore became known as the “Benchmark” tufa, because
mile of tunnel—showing that water was even more valuable they provided a useful visual benchmark of Mono Lake’s
than gold in California, worth its weight in human blood.177 disappearance.188 In 1962, when the lake had lost twenty-
Water began to flow south to Los Angeles, and the lake five vertical feet, the tops of the Benchmark tufa were just
gradually began to decline. As it had for the past three beginning to appear over the surface. By 1968, they were
million years, water in the lake continued to evaporate off exposed at the base, on a tiny island of relicted lakebed near
the surface, leaving dissolved salts behind. However, the the water’s edge. By 1995, after twenty years of augmented
fresh water that once flowed down from the mountains exports through the Second Barrel, they stood a mile from
to replenish it was now being diverted directly from those the new shoreline.189
mountain creeks into a series of mechanical intakes.178 The falling lake level caused formidable air quality prob-
These intakes shepherded Mono Basin water under the lems for the region, as lakebed that had been submerged for
Mono Crater volcanoes and into the headwaters of the millennia became increasingly exposed and airborne.190 The
Owens River, where it was routed into the original appara- bed of Mono Lake is similar to the toxic salt flats exposed
tus of the Los Angeles Aquifer. after Owens Lake was drained, except that Mono Lake is
Thirty years later, when continued development in Los much more alkaline, as it has been accumulating mineral
Angeles led the city to require still more water supply, DWP deposits for exponentially more time. Satellite images from
realized that there was potential for yet more harvest from space revealed the emerging bathtub ring of white alkali salt
the Mono Basin.179 Due to capacity limitations of the exist- flats as the lake declined,191 and the same air quality problems
ing infrastructure, not all available water was being diverted that plague the Owens Valley began to threaten the Mono
into the Aqueduct; some was still making it into the lake. Basin. Strong winds off the steep Eastern Sierra escarpment
Accordingly, in the early 1970s, DWP solved this problem
by building a second aqueduct—the “Second Barrel” of the
Mono Basin Extension.180 The Second Barrel was essentially 182. Mono Lake, 658 P.2d at 714.
another long tube paralleling the first one.181 With it in place, 183. Ryan, The Historic Saga, supra note 3, at 590, 592–93.
184. See Hart, supra note 144, at 49, 51; Mono Lake Comm., The Mono Lake Story,
https://www.monolake.org/about/story [https://perma.cc/8D88-KHJB].
185. Mono Lake Facts, supra note 144.
172. Ryan, The Historic Saga, supra note 3, at 595−96. 186. See Hart, supra note 144, at 50–51.
173. Id. 187. Id.
174. Mono Lake, 658 P.2d at 714. 188. See id.
175. Id. 189. See Andrew Ford, Mono Basin: Tufa, http://public.wsu.edu/~forda/tufa1.html
176. Id. at 711, 714. (last visited Apr. 17, 2015).
177. See Hart, supra note 144, at 43. 190. See Hart, supra note 144, at 52–54.
178. Ryan, The Historic Saga, supra note 3, at 596−97. 191. See Maggie H. Villines, NASA’s Creature at Bottom of Mono Lake: Remnants of
179. Id. Previous Earth Inhabitants?, Maggie’s Notebook, http://www.maggiesnote-
180. See Hart, supra note 144, at 56-57. book.com/2010/12/nasas-creature-at-bottom-of-mono-lake-remnants-of-pre-
181. Id. at 42–43. vious-earth-inhabitants/ [https://perma.cc/RHA4-GTVR].
spawned toxic dust storms that left the Mono Basin in fre- protection of environmental values associated with navigable
quent violation of the Clean Air Act.192 waterways.203 His insight that state sovereign authority over
Meanwhile, the decreasing amount of water in Mono navigable waterways could also imply sovereign responsibil-
Lake caused enormous problems for its ecosystem. When ity for environmental protection was entirely new at the time,
the lake lost half its water volume to unreplenished evapora- but it would soon change the landscape of natural resource
tion, that caused the salinity of the remaining lake water to management and water governance in California.204
double.193 The sharply increased salinity placed stress on the
brine shrimp, who had long thrived in the lake. I remem- III. National Audubon Society v. Superior
ber that they began to change color, turning slightly red- Court
dish, possibly indicating parasitic infections to which they
had become more vulnerable under stress. Their reproduc- Drawing on the insights of Professor Sax, the Mono Lake
tive rate slowed down, threatening the simple Mono Lake Committee filed a lawsuit claiming that the state could not
ecosystem and portending impacts for the millions of birds allow the destruction of Mono Lake, a navigable waterway,
who came to the lake for nourishment during their long jour- because it would violate the public trust doctrine.205 Their
neys.194 Negit Island, the small black volcano that had been lawsuit was eventually joined by a number of other environ-
the historic breeding ground for California gulls, became mental organizations and national and state agencies with
bridged to the north shore, exposing the gulls to the coyotes interests in the case, including the National Audubon Soci-
that regularly decimated the new chick populations.195 The ety, which helped fund it.206 But Los Angeles vigorously
mountain creeks were desiccated below the diversion points, defended the suit, claiming that there was no such violation,
destroying critical freshwater fisheries and riparian habitat.196 and that California law guaranteed their ongoing rights to
These environmental problems led to related issues for the continue diverting Mono Basin water.207 Reduced to their
local community, including economic losses, threats to pub- essence, and with rhetorical help from the Illinois Central
lic health, and general quality of life impacts.197 As it became case, here are the arguments they made.208
increasingly clear that the Mono Basin ecosystem and com-
munity were on the brink of collapse, a concerned group of A. The Legal Arguments
scientists, environmentalists, landowners, and other local cit-
izens decided to fight back.198 They formed the Mono Lake The plaintiff argued that the state of California could not
Committee to advocate for the protection and restoration of allow Los Angeles to continue water exports that were
Mono Lake, ideally without transferring the same environ- destroying Mono Lake, a navigable water held by the state in
mental problems to another remote location.199 They trav- trust for the people.209 The city claimed appropriative rights
eled the state, raising consciousness about the importance of to this water, but the plaintiffs maintained that these rights
water conservation and the impacts of water diversions on had been illegally granted in violation of the public trust doc-
places like the Mono Basin, and advocating for legislation trine, which prevents the state from alienating or allowing
to protect it.200 “Save Mono Lake” bumper stickers became a the casual destruction of navigable waterways.210 The doc-
common sight throughout California, and occasionally even trine acts as a limit on state sovereignty, they argued, and
farther afield.201 thus it must trump whatever appropriative rights the state
The Mono Lake Committee operated on many levels might try to grant in dereliction of its duty as trustee.211
to save the lake, and one of the many ideas they pursued Because the state had an obligation to protect Mono Lake in
was the litigation that is the next chapter of the story. They trust for the public,212 the Water Board, acting for the state,
centered their lawsuit on an idea inspired by a modest law lacked authority to permit Los Angeles to destroy it by drain-
review article, authored in 1970 by Prof. Joseph Sax.202 In ing it away.213
the pages of the Michigan Law Review, Joe Sax was the first
to recognize that the public trust doctrine could require the
203. Id.
192. See Hart, supra note 144, at 154−55. 204. See id. I always make this point when teaching the Mono Lake case to law re-
193. Id. at 69. view editors—and especially the most beleaguered ones—to remind them that
194. See id. (discussing shrimp reproductive issues). what they are doing really is important, because law review articles really can
195. Id. at 72, 88. change the world!
196. Id. at 54−56; Michael Blumm & Thea Schwartz, Mono Lake and the Evolving 205. Mono Lake, 658 P.2d at 716 (“[P]laintiffs filed suit for injunctive and declara-
Public Trust in Western Water, 37 Ariz. L. Rev. 701, 717–18 (1995). tory relief in the Superior Court for Mono County on May 21, 1979.”).
197. Ryan, The Historic Saga, supra note 3, at 597−98. 206. Mono Lake Basin Water Right Decision 1631, 7, 19–20 (State of Calif. Water
198. See Mono Lake Comm., History of the Mono Lake Committee, http://www. Res. Control Bd. Sept. 28, 1994), http://www.waterboards.ca.gov/publica-
monolake.org/mlc/history [https://perma.cc/25YM-EVYG]. tions_forms/publications/general/docs/monolake_wr_dec1631_a.pdf ) (here-
199. See id. inafter Decision 1631).
200. See id. 207. Mono Lake, 658 P.2d at 716, 727.
201. Jane Kay, It’s Rising and Healthy: Three Decades Ago, a Bunch of College Stu- 208. Id. For a fuller discussion of these arguments, see Ryan, The Historic Saga, supra
dents Reported on and Worried About the Fate of Mono Lake. This Month, They note 2, at 603–15; Ryan, supra note 4, at Chapters VI–VII.
Celebrated Its Recovery, SF Gate, July 29, 2006, http://www.sfgate.com/green/ 209. Id. at 716.
article/it-s-rising-and-healthy-three-decades-ago-a-2515840.php (last visited 210. Id. at 712.
Apr. 17, 2015). 211. Id. at 712−14.
202. Joseph Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial 212. Id. at 728−29.
Intervention, 68 Mich. L. Rev. 471 (1970). 213. Id.
The plaintiffs argued that the original 1940 diversion the highest echelon of beneficial use.222 (It might argue that
licenses had been granted in violation of the public trust doc- the Illinois Central analogy would fail on this point, as this
trine, because the Water Board had failed to consider the was nothing like giving away Chicago Harbor: the city is a
resulting harms to the public trust values it was obliged to public body, and this water was for the good people of Los
protect at Mono Lake.214 To support their contention, they Angeles to drink!)
pointed to the Board’s own written record of its concerns Even if none of that were enough, however, the city argued
at the time, in which they had wrung their hands about the that the plaintiffs could not rely on the public trust doctrine
apparent fact that there was nothing they could do to pre- to interfere with appropriative water rights, because of the
vent the Owens Valley tragedy from being repeating at Mono customary relationship between statutory and common
Lake.215 These writings either demonstrated that they had not law.223 It argued that the California Water Code, incorporat-
considered their obligations under the public trust doctrine, ing the prior appropriations doctrine by statute, should be
or that if they had considered them, they ignored them.216 construed to override the public trust doctrine.224 After all,
By my analogy, this was like the state of Illinois giving away that is how the legal system ordinarily works: the common
the bed of Chicago Harbor one hundred years earlier in the law fills gaps until the legislature passes a relevant statute,
Illinois Central case, which the Supreme Court had pointedly which effectively abrogates any contradictory common law.225
affirmed the state could not do. In essence, then, the Mono Lake advocates argued that
Los Angeles had a lot at stake, and it ferociously defended the common-law public trust doctrine, in defining a core
the lawsuit. City leaders realized that if they lost, they not only requirement of state sovereign ownership of waterways,
stood to lose up to 20% of their already strained water sup- should trump any contrary claims under the statutory law
plies. In addition, the negative precedent the case might cre- of prior applications—while Los Angeles argued that the
ate could threaten their ability to import other critical water prior appropriations doctrine, an abrogating act of statutory
supplies from other distant, out-of-basin locations.217 From law, should trump the common-law public trust.226 The two
their perspective, Los Angeles had complied with both the parties deadlocked on the seemingly irreconcilable issue of
letter and the spirit of California water law, which has always which rule of law reigns supreme.
sought to facilitate municipal access to water resources for
beneficial use in urban areas.218 They were even reluctant to B. The Court’s Decision
implement the water conservation efforts urged by the Mono
Lake advocates and incentivized by offers of state and federal The California Supreme Court issued a memorable opinion
funding.219 The prior appropriations regime may even have that both affirmed and disappointed the central arguments
contributed to this decision, because as a “use-it-or-lose-it” made by both sides. The prior appropriations statute does
system, a user who manages to conserve water risks forfeiture not foreclose the common-law public trust doctrine,227 it
of their rights to use that water in the future.220 concluded, but neither did the public trust doctrine deter-
According to Los Angeles, then, the plaintiffs had it mine the future of California’s massive and entrenched water
all wrong. The city was hardly violating the public trust works.228 Solomon-like, the court announced that neither of
doctrine, which protects only navigable waterways, and the two sets of law at issue trumps the other, and that the state
the city was drawing water not from the hypersaline lake, must somehow find an accommodation between them.229
but Mono’s non-navigable feeder creeks.221 Moreover, Los Its most significant holding, that the prior appropria-
Angeles argued, the public trust was the wrong doctrine to tions doctrine did not abrogate California’s public trust,
focus on. The dispositive law was that of prior appropria- was cause for celebration among the Mono Lake Advo-
tions, with which the city had diligently complied. It had cates.230 But the court declined their invitation to exalt the
sought and perfected permits under California’s statutory public trust above all other considerations, holding that
water code, and it was putting this water to municipal use, the entrenched legal and mechanical infrastructure con-
structed to move water resources around California could
not be wishes away, nor should it.231 The court observed
214. Id. at 712−14. that the state is dependent on such waterworks, and that it
215. Id. at 714. would be “disingenuous” to pretend otherwise.232 For that
216. Id. at 712−14. By my analogy, this was like the state of Illinois giving away the
bed of Chicago Harbor one hundred years earlier in the Illinois Central case, reason, it concluded, the law cannot casually dismiss the
which the Supreme Court had pointedly affirmed the state could not do. Ryan,
The Historic Saga, supra note 3, at 568. 222. Ryan, The Historic Saga, supra note 3, at 604.
217. Id. at 604. 223. Id. at 607−08.
218. Ryan, The Historic Saga, supra note 3, at 604, 606–07. 224. Mono Lake, 658 P.2d at 716, 727; Ryan, The Historic Saga, supra note 3, at
219. Id. at 602 (2015). 607−08.
220. Id. See, e.g., Salt River Valley Water User’s Assn. v. Kovacovich, 411 P.2d 201 225. Ryan, The Historic Saga, supra note 3, at 603.
(Ariz. 1966) (concluding that an irrigator who implemented water conserving 226. Id.
technology was not entitled to the conserved water under his appropriative 227. Id. at 712.
right). Today, most prior appropriation states have amended their water laws to 228. Id. at 712, 727.
provide greater incentives for water users to conserve and protect them against 229. Mono Lake, 658 P.2d at 716, 727. For fuller analysis of the court’s decision, see
forfeiture. For example, California now entitles those who conserve water to Ryan, The Historic Saga, supra note 3, at 605–11.
use, sell, or lease conserved water yielded by these efforts. Cal. Water Code 230. Mono Lake, 658 P.2d at 712.
§ 1011. 231. Id. at 712, 727.
221. Mono Lake, 658 P.2d at 716, 727. 232. Id. at 712.
appropriative rights upon which holders, especially major ests. With the benefit of substantial research and exhaustive
metropolitan areas, have come to rely.233 public input, the Water Board eventually worked out a more
Nevertheless, the court concluded that the public trust limited schedule of diversions that would allow Los Angeles
doctrine is also the law of the land, and that the state may to continue taking water, so long as critical public trust val-
not ignore the obligations it imposes.234 While the doctrine ues at Mono Lake remained protected.241 Famously known as
is designed to protect navigable waterways, the court rec- “Decision 1631,” the decision represented a compromise, not
ognized that under circumstances like these, the waterway unlike the Supreme Court’s decision.242 It set a designated
cannot be meaningfully separated from its non-navigable recovery level for the lake at 6,392 feet above sea level, a point
tributaries.235 The court found that the state had clearly failed roughly between the original, pre-diversion lake level (6,417
to consider the public trust implications of the 1940 licensing feet) and the level at the time of litigation (6,372 feet).243
decision, and since the state cannot neglect its public trust This 6,392-foot recovery level was chosen for several rea-
obligations,236 it must reconsider these licenses anew, weigh- sons. It would stabilize the salinity of the lake at a level the
ing Los Angeles’ legitimate needs for water against the sce- brine shrimp could survive, thus protecting the fragile Mono
nic, ecological, and recreational public trust values at stake in Lake ecosystem.244 It would cover the most hazardous salt
the Mono Basin.237 flats, limiting toxic dust storms and thus protecting the pub-
Of note, the court did not provide much guidance about lic health.245 It would also protect the scenic and recreational
how, exactly, the state should proceed in balancing legitimate values of Mono Lake, and with it, the local communities and
but incommensurate interests beyond the admonition that it economies that depend on it.246 Finally, it would still allow
must. Analytically, it is useful to consider whether the deci- Los Angeles to export needed water supply, so long as desig-
sion creates a mere procedural requirement—a command to nated benchmarks and recovery levels were met and main-
think carefully before deciding to compromise trust values, tained.247 Eventually, when the lake reached the recovery
such as the “look before you leap” analysis required by the level, exports would be unlimited, so long as the lake remains
National Environmental Policy Act of 1969 (NEPA)238 —or at the target level.248 Twenty-four years later, the target has
whether it creates a substantive command to protect public still not been achieved; the lake currently averages around
trust values. The procedural requirement is clear, as the deci- 6,381 feet of elevation, not quite halfway toward the goal.249
sion was premised on the state’s failure to consider public Unfortunately, California’s ongoing water woes and unpre-
trust obligations at Mono Lake in the original licensing deci- dictable weather patterns cast doubt on when, if ever, that
sion. But was there more? goal will be met.
The decision is so understated on this point that it takes a Decision 1631 marked a true turning point for the Mono
careful reader to find it, but the court did in fact articulate a Lake story, but an equally significant moment followed
substantive, if weak, command—to protect public trust val- shortly thereafter. While the court’s decision set forth rules
ues as much as possible.239 The court directed that “before of law, it was the Water Board’s decision that would deter-
state courts and agencies approve water diversions they mine the actual fate of both the city’s water diversions and
should consider the effect of such diversions upon interests the lake. All parties had awaited its ruling with bated breath
protected by the public trust, and attempt, so far as feasible, over each of the previous ten years. Everyone knew that from
to avoid or minimize any harm to those interests.”240 Requiring the perspective of Los Angeles, giving up any claim to the
the state to avoid harming trust values as much as is “fea- water the city had once relied on would be a painful loss.250
sible” leaves an awful lot to state discretion, but it does imbue Los Angeles had fought the Mono Lake lawsuit with all its
a substantive dimension to California’s public trust doctrine might, because nothing made the city more vulnerable than
that distinguishes it from the purely procedural requirements the loss of access to water. Moreover, given the reasoning
of NEPA. Such breadth of discretion begs questions about behind the court’s decision, Los Angeles now had to worry
whether the command has real bite, but the court’s language not only about losing Mono Basin water, but potentially all
does provide both a moral impetus for state action and a legal of its water supply—much of which was imported from dis-
hook for public and judicial oversight. tant watersheds.251
C. The Aftermath: The Water Board’s Decision 1631

242. Decision 1631, supra note 206, at 154–55.
After the California Supreme Court’s decision, the Water 243. Id. at 158.
Resources Control Board spent the next ten years trying to 244. Id. at 77–78, 82.
245. Id. at 3.
calculate the proper balance between these competing inter- 246. Id.
247. Id. at 156–57. Decision 1631 articulated a complicated series of interim
benchmarks and recovery levels with corresponding permissible diversions. Ex-
233. Id. ports were initially prohibited until the lake level reached the first benchmark,
234. Id. after which reduced exports would be permitted until the next benchmark was
235. Id. reached, and so on. Decision 1631, supra note 206.
236. Id. 248. Id. at 156.
237. Id. at 728–29. 249. Mono Lake Levels 1979-Present, Mono Lake Committee, http://www.mono-
238. 42 U.S.C. §§ 4321–4370(h) (2012). basinresearch.org/data/levelmonthly.php [https://perma.cc/NC5K-SCS7].
239. Mono Lake, 658 P.2d at 728. 250. Ryan, The Historic Saga, supra note 3, at 612–13.
240. Id. (emphasis added). 251. Id. at 613.
For that reason, when the Water Board ruled that the city the other.258 Both sets of legal requirements must be con-
would have to stop exporting all Mono Basin water until sidered together, and perhaps balanced against one another,
interim benchmarks were met, many perceived the decision when the state makes management decisions about water
not as a compromise between the interests of both sides, but as resources subject to the public trust like Mono Lake.259 Yet,
a serious loss for Los Angeles. The big question on everyone’s this grand gesture of legal compromise highlights a singular
mind was whether the city would appeal the Water Board’s feature of the public trust doctrine, and how it departs from
decision.252 That would have brought many more years of liti- the usual legal norms. Because at first blush, Los Angeles’s
gation, and even more serious environmental impacts for the argument on this point seems correct—normally, statutory
Mono Basin during the interim. Many observers anticipated law does trump the common law.260
that Los Angeles, who had so bitterly fought the underlying This seemingly paradoxical result makes sense, however,
litigation, would certainly appeal. if the doctrine originated as a constitutive grant of author-
Yet, in a remarkable turnaround, the city changed course. ity and obligation regarding the management of public com-
Much like the citizens of Illinois in the Illinois Central story,253 mons water resources. If the public trust doctrine serves to
the good people of Los Angeles voted in new city leadership, both grant and limit sovereign authority—granting the sov-
and those new leaders took office with a new platform and a ereign ownership of these resources but obligating it to man-
new approach: Conservation.254 age them in trust for the public—then, of course, it would
Rather than carrying on the same old battle, the city be self-defeating to allow the state to abolish the limit leg-
decided to cooperate with the Mono Basin advocates they’d islatively.261 Some have argued that this gives the doctrine
been fighting in court, resolving to work together toward a quasi-constitutional foundation, an underlying legal con-
increased water conservation in the Los Angeles basin and straint that statutory law can build upon but not undermine,
restoration of the deteriorated resources of the Mono Basin.255 which makes it inherently different from more conventional,
Instead of appealing Decision 1631, they took advantage of garden-variety common-law doctrines.262 Some have argued
the state and federal grants that have been previously offered that this interpretation of the public trust doctrine is a nec-
to implement large-scale water conservation projects.256 essary implication of the equal footing doctrine,263 which is
Through a series of programmatic conservation efforts, from also recognized as a principle of U.S. constitutional law264 —
facilitating industrial water recycling to subsidizing low flush even though, like the words “public trust,” the words “equal
toilet installation and other household-based limits on con- footing” appear nowhere in the U.S. Constitution.
sumption, the city made remarkable progress—recovering While many jurisdictions have followed California’s
through conservation alone the entire loss of water supply model,265 it is important to note that at least one American
that had been coming from the Mono Basin.257 Los Angeles jurisdiction, Idaho, has taken a markedly different approach,
deserves enormous credit for its leadership in water conserva- prompting both political and scholarly controversy.266 After
tion and recycling ever since.
258. Id. at 727.
IV. Unpacking the Mono Lake Decision 259. Id.
261. Id. at 573−74.
The Mono Lake case not only saved Mono Lake, it established 262. See, e.g., Michael Blumm & Mary Christina Wood, “No Ordinary Lawsuit”:
several important legal principles, interpreting the scope of Climate Change, Due Process, and the Public Trust Doctrine, 67 Am. U. L. Rev.
1, 43–44 (2017) (arguing that the public trust doctrine is “an inherent con-
public trust protections for different values, in application to stitutional limit on sovereignty”); Michael C. Blumm et al., Renouncing the
different resources, and even the operation of the doctrine Public Trust Doctrine: An Assessment of the Validity of Idaho House Bill 794, 24
over time. But before assessing them, I’d like to consider the Ecology L.Q. 461 (1997).
263. See, e.g., Michael Blumm & Lynn Schaffer, The Federal Public Trust Doctrine:
issue the court resolved that carries the most theoretical heft: Misinterpreting Justice Kennedy and Illinois Central Railroad, 45 Envtl. L.
the implications of the decision for the legal nature of the 257, 400–01 (2015); James R. Rasband, The Disregarded Common Parentage
public trust doctrine itself. of the Equal Footing and Public Trust Doctrines, 32 Land & Water L. Rev. 1
(1997); Harrison C. Dunning, The Public Trust: A Fundamental Doctrine of
American Property Law, 19 Envtl. L. 515, 524 (1989).
A. The Nature of the Public Trust Doctrine 264. U.S. Const. art. IV, § 3, cl. 1. See also Coyle v. Smith, 221 U.S. 559, 566
(1911) (interpreting the equal footing clause in reference to sovereign owner-
ship of submerged lands).
As noted, the court concluded that California’s statutorily 265. See, e.g., Lawrence v. Clark Cnty., 254 P.3d 606, 613 (Nev. 2011) (“The final
adopted prior appropriations doctrine did not abrogate its underpinning of our formal adoption of the public trust doctrine arises from
common-law public trust doctrine, and that neither trumps the inherent limitations on the state’s sovereign power.”); In re Water Use
Permit Applications for the Waiahole Ditch, 9 P.3d 409, 432 (Haw. 2000)
(“[H]istory and precedent have established the public trust as an inherent at-
tribute of sovereign authority.”); East Cape May v. State Dept. of Envtl. Prot.,
252. Id. 777 A.2d 1015, 1034 (N.J. Super. A.D. 2001) (noting that “tidally-flowed land
253. See supra notes 60−82 and accompanying text, discussing Illinois Central. has always been subject to the public trust doctrine . . . [which] provides that
254. Ryan, The Historic Saga, supra note 3, at 612–13. the sovereign never waives its right to regulate the use of public trust property”);
255. Id. Caminiti v. Boyle, 732 P.2d 989, 994 (1987) (“The state can no more convey or
256. Hart, supra note 56, at 149. give away this jus publicum interest than it can ‘abdicate its police powers in the
257. Mono Lake Comm., Mono Lake FAQ: Frequently Asked Questions About Mono administration of government and the preservation of the peace.’”).
Lake, http://www.monolake.org/about/faq [https://perma.cc/UVC4-QQPV] 266. James M. Kearney, Recent Statute: Closing the Floodgates? Idaho’s Statutory Limi-
(noting that Los Angeles conservation efforts have more than replaced water tation on the Public Trust Doctrine, 34 Idaho L. Rev. 91 at 94 (1997); Blumm,
no longer diverted from Mono Lake). Dunning, & Reed, supra note 262, at 472 (noting that the new statute “was the
the Idaho Supreme Court issued a series of public trust deci- problem, because it would seem that they cannot both be
sions converging on the California Supreme Court’s interpre- right. Either the doctrine originated as a modifiable expres-
tation in Mono Lake,267 the state legislature enacted a statute sion of conventional state authority, or it has always been a
that expressly foreclosed this interpretive path.268 The legis- less negotiable constraint on sovereign power.273
lation declared that the public trust doctrine did limit the If California is right, then unlike the conventional com-
state’s ability to alienate title to the beds of navigable waters, mon law, the public trust doctrine represents a quasi-consti-
but that it had little impact beyond that,269 preventing the tutional limit on sovereign authority that cannot be so easily
doctrine from impacting the allocation of prior appropriative legislated away. But if Idaho is right, then the doctrine is just
water rights or state decisions about the commercial, agricul- another common-law rule that is forever subject to new sov-
tural, or recreational uses of public trust waterways.270 ereign consensus. Neither of these principles can reduce to
Environmental advocates and scholars condemned the the other without constitutional change. The Idaho approach
Idaho statute as an illegitimate legislative move,271 but in fair- could not legitimately evolve from the California model, nor
ness, that depends on the nature of the doctrine at its core. could the California approach evolve from the Idaho model,
If the public trust doctrine does include a constitutive limit because either path threatens conventional rule of law prin-
on sovereign authority over natural resource public com- ciples. At least in the United States, sovereign authority can-
mons, then yes, the Idaho Legislature’s move to abrogate this not free itself of constitutional constraints, nor does ordinary
limit was ultra vires. That view is reflected in the California common law assume constitutive status through conven-
approach, mirrored in other states with strong common-law tional common-law processes.
doctrines, such as Hawaii, New Jersey, and Washington, and The disjuncture begs the question: which is it? And indeed,
those with express constitutional trusts, such as Pennsylva- debate over the answer continues to unfold in centers of judi-
nia.272 But the Idaho Legislature treated the doctrine as just cial, legislative, and executive decisionmaking across the
another conventional expression of ordinary state authority, nation, especially prompted by the unfolding atmospheric
which is normally subject to legislative change. The Idaho trust litigation.274 It demonstrates that the project of inter-
example poses a strong challenge to the constitutive public preting the public trust doctrine remains a work in progress,
trust model, indicating both the variability of the doctrine and we are all bearing witness to this ongoing debate.
among U.S. jurisdictions and also this critical underlying
theoretical dilemma. B. Doctrinal Extensions on Values,Tributaries,
The contest between the California and Idaho models is and Time
significant, because it reveals precisely this unresolved theo-
retical question at the heart of the public trust doctrine. Is it That statutory water allocation law did not displace the Cali-
a constitutive element of sovereign authority that cannot be fornia public trust doctrine may be the most significant part
casually dissolved by the one wielding that sovereign author- of the holding as a matter of legal theory, but the decision also
ity at any given moment in time? Or is it an expression of the included several other important extensions of the doctrine,
state’s conventional police power to protect the public wel- expanding the scope of doctrinal protections to environmen-
fare, which can always be revisited by future legislative deci- tal values, non-navigable tributaries, and over time.275
sionmakers? If we assume that the public trust doctrine in
every state evolved from a single, unified principle, then the 1. Environmental Public Trust Values
contrary approaches taken by these states pose a thorny legal
The one for which Mono Lake is most often celebrated is
legislature’s response to judicial public trust declarations” in a series of Idaho the recognition that the public trust doctrine protects not
Supreme Court cases). only the navigation and fishing values traditionally associ-
267. See, e.g., Selkirk-Priest Basin Ass’n v. State ex rel. Andrus, 127 Idaho 239, 240 ated with the common-law doctrine but also the ecological,
(1995) (suggesting that the public trust doctrine might be used to constrain
harm from logging activities to an impacted water body); Idaho Conserva- scenic, and recreational values at stake at Mono Lake.276 The
tion League v. State, 911 P.2d 748 (Idaho 1995) (declining intervention by
environmental groups to raise public trust issues where state ownership was 273. If there is one, an alternative explanation would probably require the operation
not at issue, but suggesting in dicta that the public trust doctrine could take of something like the controversial “Constitutional Moments” higher lawmak-
precedence over vested water rights). See also Kearney, supra note 266 at 95−96 ing hypothesis offered by Prof. Bruce Ackerman to explain the adoption of
(discussing the reaction of the legislature to these cases). constitutional principles outside the formal amendment process (justifying,
268. Idaho Code tit. 58, ch. 12 §§ 58-1201−1203 (1996) (Chapter 12. Public for example, the canonization of Fourteenth Amendment principles within the
Trust Doctrine). U.S. constitutional framework notwithstanding problems with the post-civil
269. Id. at § 58-1201(4) and (6) (defines public trust doctrine as guiding alienation war amendment process). Bruce Ackerman, We the People: Foundations
of the title of the beds of navigable waters and clarifies that the purpose of the 6–7, 110–11 (1991). Ackerman’s theory, of course, has itself been the object
act is to define limits on the public trust doctrine); id. at § 58-1203(1) (limits of intense criticism. See, e.g., Michael J. Klarman, Review: Constitutional Fact/
the public trust doctrine to “solely a limitation on the power of the state to Constitutional Fiction: A Critique of Bruce Ackerman’s Theory of Constitutional
alienate or encumber the title to the beds of navigable waters”). Moments, 44 Stanford L. Rev. 759 (1992).
270. Id. at § 58-1203(3) (does not limit the state to authorize public and private use 274. See infra Part IV.
or alienation of title to the beds of navigable waters if the state board of land 275. For a fuller analysis, see Ryan, The Historic Saga, supra note 3, at 609−12;
commissioners determines that it is in accordance with Idaho statutes and con- Ryan, supra note 4, at Chapter VI.
stitution and for the purposes of navigation, commerce, recreation, agriculture, 276. Ryan, The Historic Saga, supra note 3, at 606; Blumm, supra note 8, at 591;
mining, forestry, or other uses). Frank, supra note 78, at 670; Timothy J. Conway, National Audubon Society
271. See, e.g., Kearney, supra note 266; Blumm et al., supra note 262. v. Superior Court: The Expanding Public Trust Doctrine, 14 Envtl. L. 617, 631
272. See sources cited supra, notes 87 & 265. (1984).
Mono Basin makes a great poster child for this proposition, must be limited to protect the navigable waterway that
because it is such a visually stunning place, with a unique depends on them.
and life-productive ecosystem, attracting hundreds of thou- In 2018, the California Court of Appeals affirmed that the
sands of recreational visitors each year. state has the authority and obligation under the public trust
In this regard, however, Mono Lake is really just riding the doctrine to regulate extractions of groundwater that affect
coat-tails of a slightly earlier California case, Marks v. Whit- public trust uses in the Scott River.286 The decision was her-
ney, in which the California Supreme Court first allowed for alded by environmentalists, who have long urged that water
consideration of these extended environmental values.277 Mono law better account for the interdependence of ground and
Lake was the later comer, relying itself on the precedent set forth surface water resources.287 However, it was equally decried by
in Marks, but Marks was a relatively dry and technical case advocates for property rights holders, including the farmers
that adjudicated rights of access to privately-owned tidelands, and ranchers who had been withdrawing groundwater that
about which ordinary people could not get terribly excited.278 was the subject of this litigation for commercial purposes.288
Mono Lake has perhaps stolen Marks’s rightful thunder, but the Later that year, when the defendant county appealed this
Mono Lake story was so much more engaging that it has come decision to the California Supreme Court, the high court
to stand for this legal innovation in the public consciousness denied review, making the Court of Appeal’s decision the
more compellingly than Marks was able to do. final word in the case.289
2. Non-Navigable Tributaries 3. Duty of Ongoing Supervision

Notably, Mono Lake also extended the public trust doctrine Finally, and perhaps most concerning to water manag-
to the non-navigable tributaries on which a navigable water- ers throughout the western United States, the California
way relies.279 Spanning 45,000 acres and reaching depths of Supreme Court articulated in Mono Lake a duty of ongo-
hundreds of feet, Mono Lake is unquestionably a navigable ing oversight for public trust resources.290 Conceptually, this
waterway.280 It has been commercially navigated since the was necessary to overcome the time lag between Los Angeles’
time of the California Gold Rush, when it was used to trans- original grant of the diversion licenses in 1940 and the filing
port logs from the Jeffrey Pine forest south of the lake to of litigation forty years later.291 Mono Lake was not the first
Bodie, one of the principal Gold Rush boom towns north case to apply the doctrine in the context of water rights—it
of the Basin.281 Yet, Los Angeles was not diverting water followed a recent North Dakota case requiring consideration
directly from Mono Lake, whose salty waters are manifestly of the impacts of a new consumptive permit on existing and
non-potable. Water was diverted from the freshwater Mono future supply292—but it was the first to do so retroactively.
Basin creeks that flow down from the Sierra Nevada into In the Mono Lake case, the court held that there is no statute
the lake, and these steep, rocky creeks were not navigable at of limitations on public trust claims; the state has an ongo-
the point of diversion.282 Los Angeles attempted to leverage ing duty to supervise public trust resources and consider its
this distinction, but the Court held that the tributaries of a responsibilities under the doctrine.293 This ongoing obliga-
protected waterway must also be protected if the alternative tion of oversight both allowed and required the Water Board
would result in the destruction of the protected waterway.283 to revisit its past decision, when that decision had failed to
The extension of public trust protection to non-navigable take account of public trust obligations.
tributaries at Mono Lake continues to play a pivotal role
in the unfolding power of the doctrine to protect Califor- 286. Id.
nia waterways. Most recently, the Mono Lake case proved 287. Richard Frank, California Court Finds Public Trust Doctrine Applies to
State Groundwater Resources, Legal Planet (Aug. 29, 2018), legal-planet.
foundational in a public trust decision extending the non- org/2018/08/29/california-court-finds-public-trust-doctrine-applies-to-state-
navigable tributary rule to groundwater.284 The Scott River groundwater-resources/ (reporting that the court declared that “California’s
in central California is a navigable river substantially fed by powerful public trust doctrine applies to at least some of the state’s overtaxed
groundwater resources . . . [and] rejects the argument that California’s Sus-
groundwater sources, and the river has declined seriously as tainable Groundwater Management Act displaces the public trust doctrine’s
these sources are increasingly exploited.285 The plaintiffs in applicability to groundwater resources”).
the Scott River case sought to extend the Mono Lake rule to 288. Pacific Legal Foundation, The State Has No “Public Trust” Power Over Ground-
water, https://pacificlegal.org/case/environmental-law-foundation-v-state-wa-
groundwater on exactly the same theory—that even though ter-resources-control-board/ [https://perma.cc/S9BG-GBZ2] (“As amicus on
groundwater tributaries are non-navigable, withdrawals behalf of property owners and farmers, PLF asks the Court of Appeal to reverse
this unwarranted, vast expansion of the public trust doctrine.”).
289. Order Denying Petition for Review, Envtl. Law Found. v. State Water Res.
Control Bd., No. S251849 (Cal. Nov. 28, 2018). Since then, much ink has
277. 491 P.2d 374, 380, 2 ELR 20049 (Cal. 1971) (expanding public trust protec- been spilled over the implications of the decision for California water law and
tions to ecological, habitat, open space, climatic, and scenic values). how it may affect the development and review of groundwater sustainability
278. See id. plans under California’s 2014 Sustainable Groundwater Management Act. Sus-
279. Mono Lake, 658 P.2d at 720–21. tainable Groundwater Management Act, Cal. Water Code §§ 10720–10737.8,
280. Hart, supra note 56, at 24–25. added by Stats.204, c. 346 (S.B. 1168, eff. Jan 1, 2015).
281. Id. 290. Mono Lake, 658 P.2d at 727.
282. Ryan, The Historic Saga, supra note 3, at 607−10. 291. Ryan, The Historic Saga, supra note 3, at 606.
283. Mono Lake, 658 P.2d at 721. 292. United Plainsmen Ass’n v. N.D. State Water Conservation Comm’n, 247
284. Scott River, Case No.: 34-2010-80000583 (Cal. 3d App. Dist., Aug. 29, 2018). N.W.2d 457, 463, 7 ELR 20117 (N.D. 1976).
285. Id. at 2. 293. Mono Lake, 658 P.2d at 727–28, 732.
In terms of practical impact, this might have been the The most vociferous critique comes from the property
biggest legal innovation of all. By implication, it meant rights community. Property rights advocates worry about
that the state might have to revisit its Mono Lake diversion how quickly the modern public trust doctrine has developed,
decision again in another forty years’ time—or sooner than and the new interests it has been interpreted to protect.304
that, or later—as circumstances evolve.294 Indeed, it could They decry the way they see the doctrine putting a fist
require the state to revisit any past decision involving a on the scale on the side of public interests at the expense
navigable waterway for the same reason, or if circumstances of established private interests in water resources protected
significantly alter the calculus underlying a past decision. by the trust.305 They are concerned about the trajectory of
At least in theory, all water allocation or management deci- public trust disputes when the doctrine seems so malleable,
sions impacting public trust waterways could be up for encompassing new values as they become recognized—and
renegotiation, as would be all future decisions.295 The poten- especially if public trust decisions can be revisited over time
tial ramifications of this duty of ongoing supervision sent through a duty of ongoing oversight.306
shock waves through the arid west, where diverters feared Another critique has arisen from those concerned with
what this could mean for the certainty of their rights and the legal process ramifications of the public trust doctrine.307
infrastructure.296 The prospect of revisiting management These critics worry about the separation of powers implica-
decisions made without consideration of public trust val- tion of a doctrine that allows the judiciary to second-guess
ues threatened to upend many seemingly settled allocation legislative and executive decisionmaking.308 They view judi-
plans, because before the Mono Lake case called attention to cial encroachment on policy decisions with skepticism, given
them, public trust issues were unlikely to have been raised that the judiciary is “the least democratic branch,” in com-
during the decisionmaking process.297 parison with the others that are more directly beholden to
This point generated considerable controversy, and indeed, electing constituents.309 Legal Process critics are troubled by
no state has adopted the full Mono Lake doctrine of ongoing the idea that unelected judges could countermand the popu-
oversight298 except Hawaii, a riparian rights state that oper- lar will, and that even in states where judges are elected, their
ates under a wholly different set of legal and hydrological con- decisions could maintain precedential value long after a judge
straints.299 As noted, some states have gone out of their way leaves office.310 To these champions of the political branches,
to ensure that they do not follow in California’s footsteps, as the public trust doctrine seems not only antidemocratic but
the Idaho Legislature did in statutorily limiting the judicial potentially destabilizing to the rule of law.311
evolution of the doctrine.300 Outside of the Mono Basin, even Finally, while most environmentalist love the public trust
California has not made much use of the doctrine retrospec- doctrine, the Mono Lake decision also produced an environ-
tively, although the doctrine does now play an important role mentalist critique, one that I have previously referred to as
in prospective administrative decisionmaking.301 “The Green Dissent.”312 Leading that charge thirty years ago
was Richard Lazarus, now a leading professor of environ-
C. Post-Decision Pushback
304. Id. at 615, 618−19; James L. Huffman, A Fish out of Water: The Public Trust
Doctrine in a Constitutional Democracy, 19 Envtl. L. 527, 533 (1989) (identi-
In the context of the Mono Lake story, it is easy to paint a fying the doctrine as a creature of property law that has been distorted by the
heroic portrait of the public trust doctrine. After the Mono courts beyond its proper boundaries); Barton H. Thompson Jr., The Public
Lake litigation, the doctrine emerged as a darling of the wider Trust Doctrine: A Conservative Reconstruction and Defense, 15 Se. Envtl. L.J.
47, 49 (2006) (suggesting reconstruction of the public trust doctrine in re-
environmentalist community—the unlikely savior of a trea- sponse to libertarian and property rights critiques); Lloyd R. Cohen, The Pub-
sured place against the forces of those with far greater power. lic Trust Doctrine: An Economic Perspective, 29 Cal. W. L. Rev. 239, 274–76
Many celebrated the David-and-Goliath result, in which a (1992) (criticizing the public trust doctrine’s effects on private property rights);
see also Rose, supra note 31, at 711–13, 717; (recognizing the inevitable con-
rag-tag collection of local scientists and bird watchers orga- flict between the public trust and private property rights and considering what
nized around a kitchen table somehow defeated one of the type of property can, under competing notions of public trust, be considered
largest and most powerful cities in the world.302 However, inherently public). But see Richard A. Epstein, The Public Trust Doctrine, 7
Cato J. 411, 428–30 (1987) (analyzing the public trust doctrine from a simi-
not everyone was so enamored with the doctrine. Important larly libertarian, property rights perspective, but supporting it as a natural limi-
critiques soon emerged from advocates for private property tation on government power, comparable to restrictions on eminent domain).
rights, advocates for greater separation of powers, and even 305. Ryan, The Historic Saga, supra note 3, at 615, 618–19.
306. Id. at 615−19; Thompson, supra note 304, at 47, 48–49.
some environmentalists.303 307. See, e.g., Ryan, The Historic Saga, supra note 3, at 617–18; Thompson, supra
note 304, at 48–49; William D. Araiza, Democracy, Distrust, and the Public
294. Ryan, The Historic Saga, supra note 3, at 608. Trust: Process-Based Constitutional Theory, the Public Trust Doctrine, and the
295. Id. at 611–12. Search for a Substantive Environmental Value, 45 UCLA L. Rev. 385, 432
296. Id. at 608−11. (1997).
297. Id. at 609, 611−12. 308. Ryan, The Historic Saga, supra note 3, at 618.
298. Id. 309. Id.
299. In re Water Use Permit Applications for the Waiahole Ditch, 9 P.3d 409, 445 310. See Huffman, supra note 304, at 533.
(Haw. 2000). 311. Id.
300. See supra notes 266−71 and accompanying text (discussing Idaho’s legislative 312. See, e.g., Erin Ryan, Public Trust & Distrust: Theoretical Implications of the Pub-
abrogation of the common-law doctrine). lic Trust Doctrine for Natural Resource Management, 31 Envtl. L. 477, 492–93
301. See generally David Owen, The Mono Lake Case, the Public Trust Doctrine, and (2001); Ryan, The Historic Saga, supra note 3, at 616, 620–21; Thompson,
the Administrative State, 45 U.C. Davis L. Rev. 1099 (2012). supra note 304, at 48–49; Richard J. Lazarus, Changing Conceptions of Property
302. Ryan, The Historic Saga, supra note 3, at 603–09. and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine, 71
303. For a fuller analysis, see id. at 617–22; Ryan, supra note 4, at Chapter VII. Iowa L. Rev. 631, 715–16 (1986); Araiza, supra note 307, at 387–89.
mental law at Harvard Law School.313 He famously criticized litigation?324 If it applies to waterways, then which water-
the environmentalist embrace of the doctrine, arguing that it ways? All of them, or only some subset?325 And if it protects
would take the burgeoning environmental law movement— waterways as public commons against private monopoly or
which had come of age barely ten years earlier in the 1970s— appropriation, then why not apply the same rule to other
in the entirely wrong direction.314 critical natural resources that are also susceptible to appro-
Central to the Green Dissent was the position that it was priation or monopoly?326 Why not to fisheries? Why not to
a mistake to embrace the tools and vocabulary of property biodiversity? And perhaps most to the point, as we face down
law to accomplish the stewardship-oriented goals of envi- the increasingly violent effects of climate change, why not to
ronmental law.315 As Lazarus explained, the public trust doc- the atmospheric commons?
trine emphasizes such property law concepts as public and Indeed, recall the original Justinian statement of the doc-
private ownership of resources, trustees and beneficiaries, trine that I introduced at the beginning of this Article, which
and so forth.316 Instead of infusing environmental law with explicitly named “the air” among the select public commons
property concepts, he maintained that environmental law protected by the doctrine, together with the running water,
should embrace stewardship concepts more consistent with the sea, and the shores.327
new environmental statutes such as NEPA and the Clean Air To that end, University of Oregon Prof. Mary Wood has
and Water Acts, and the emerging principles of administra- advocated that the public trust doctrine should apply to the
tive law.317 The stewardship approach obliges the state to pro- atmosphere.328 She argues that we should seek public trust
tect valued resource independently from ownership, public protection for the air commons and the climate system
or otherwise.318 After all, if we base environmental protec- bound up with that enables life on earth as we know it.329
tion obligations on public ownership, then what happens if Inspired by her scholarship, environmental advocates have
a fickle public suddenly decides it would be more valuable to launched the atmospheric trust litigation project,330 now
put up a parking lot? spearheaded by the nonprofit organization, Our Children’s
Accordingly, not everybody loves the public trust doctrine Trust,331 which has assisted youth plaintiffs around the coun-
as it stands, nor does everyone cheer where it may be headed. try in bringing suits and administrative action seeking public
These critiques warrant mention, especially as new develop- trust protection for the atmosphere.332 The named plaintiff in
ments push the doctrine into territory not previously recog- the most important of these cases, Juliana v. United States,
nized in U.S. law. was a teenager when she and eighteen other youth plaintiffs
first filed the case in 2015.333
V. The Contested Future:
324. See supra notes 75–79 and accompanying text, discussing the use of the doc-
An Atmospheric Trust trine as a defense to takings claims.
325. See, e.g., Kramer v. City of Lake Oswego, 285 Or. App. 181, 196-291 (2017)
After Mono Lake, environmentalist appeals to the doctrine (declining plaintiff’s request to clarify that the public trust doctrine applies to
all submerged lands and overlying waters, not just those owned by the state).
surged, although successes were mostly limited to contexts 326. Ryan, The Historic Saga, supra note 3, at 622.
involving waterways.319 There have been important new 327. See J. Inst. Proemium, 2.1.1., supra note 16; see also supra Section I.A.1.
applications in the context of water resources, including Cal- 328. See generally Mary Christina Wood, Nature’s Trust: Environmental Law
for a New Ecological Age (2014).
ifornia’s extension of the Mono Lake doctrine to groundwater 329. Id.
tributaries in the Scott River case,320 the protection of public 330. See, e.g., Erin Ryan et al., Juliana v. United States: Debating the Fundamentals of
beach access in New Jersey,321 public walking rights along a Fundamental Right to a Sustainable Climate, 46 Fla. St. U. L. Rev. Online
*1 (2018) (analyzing the unfolding atmospheric trust litigation in the context
Great Lakes shores,322 and the protection of public drinking of Juliana v. United States) [hereinafter Ryan et al., Debating Juliana]; Blumm
water from hydraulic fracturing under Pennsylvania’s consti- & Wood, supra note 262 (discussing Juliana v. United States and all other at-
tutionalized version of the doctrine.323 mospheric trust litigation and administrative actions); Randall S. Abate, At-
mospheric Trust Litigation in the United States: Pipe Dream or Pipeline to Justice
Yet, all along, litigants and scholars have tried to under- for Future Generations?, in Climate Justice: Case Studies in Global and
stand the proper extent of the doctrine. Is it a background Regional Governance Challenges 542 (Randall S. Abate ed., 2016); Ryan,
principle of state law that can function as a defense to takings The Historic Saga, supra note 3, at 629.
331. Our Mission, Our Children’s Trust, https://www.ourchildrenstrust.org/
mission-statement [https://perma.cc/BWP7-KK8H]:
Our Children’s Trust elevates the voice of youth to secure the legal
right to a stable climate and healthy atmosphere for the benefit of all
313. See, e.g., Lazarus, supra note 312, at 715–16. present and future generations. . . . We lead a game-changing legal
314. Id. campaign seeking systemic, science-based emissions reductions and
315. Ryan, The Historic Saga, supra note 3, at 617−620. climate recovery policy at all levels of government. We give young
316. Lazarus, supra note 312, at 648, 642−43. people, those with most at stake in the climate crisis, a voice to favor-
317. Id. at 680−81 n.308, 684; Ryan, The Historic Saga, supra note 3, at 617−20. ably impact their futures.
318. Id. 332. See State Judicial Actions Now Pending, Our Children’s Trust, https://www.
319. Ryan, The Historic Saga, supra note 3, at 490. ourchildrenstrust.org/pending-state-actions [https://perma.cc/GX2C-W5F9]
320. See supra notes 284−88. (describing pending actions in Alaska, Colorado, Florida, Maine, Massachu-
321. Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355, 363 (N.J. 1984). setts, New Mexico, North Carolina, Oregon, and Washington); Other Proceed-
322. Glass v. Goeckel, 703 N.W.2d 58 (Mich. 2005); Scott River Litigation: Envtl. ings in All 50 States, Our Children’s Trust, https://www.ourchildrenstrust.
Law Found. v. Cty. of Siskiyou, No. C083239 (Cal. Ct. App. 3d Dist. 2018); org/other-proceedings-in-all-50-states [https://perma.cc/LVC7-8R62].
see also Ryan, The Historic Saga, supra note 3, at 625. 333. 217 F. Supp. 3d 1224, 46 ELR 20072 (D. Or. 2016). Together with other
323. See Dernbach, supra note 88, at 464; see also Ryan, The Historic Saga, supra note public trust scholars, I have participated in the professor amicus briefs on the
3, at 624. side of the plaintiffs in this case.
The plaintiffs in these cases maintain that the govern- to the Ninth Circuit on interlocutory appeal.342 As this piece
ment holds the air commons in trust for the people, just as goes to press, the trial is once again on hold. After hearing
it does navigable waterways—and that both federal and state arguments on the motion to dismiss in early June 2019, the
governments are failing their trust obligations to protect it Ninth Circuit is now deliberating whether to allow the case
from polluters, who are wrongfully using the atmosphere as a to go to trial.343
carbon sink.334 More importantly, they say, the atmospheric Juliana has generated enormous interest, but the case faces
commons is a congestible resource that is being used up. high legal hurdles.344 First, the plaintiffs must convince the
The specific public trust argument is that by not regulating federal judiciary that the obligations of the public trust apply
greenhouse gas pollution, the federal and state governments to the federal government, which is best positioned to regu-
are allowing private appropriators to appropriate the air com- late greenhouse gas pollution in the United States.345 In fact,
mons as a private dumping ground, and at the expense of the the Supreme Court recently issued dicta emphasizing that
public interest for future generations in a livable world.335 The the doctrine is strictly a matter of state law, which will be a
fact that the youth plaintiffs are, themselves, members of the challenge for the plaintiffs.346 Nevertheless, the plaintiffs seek
future generation makes their claim all the more arresting.336 to distinguish this dicta based on its context,347 and empha-
Juliana had been slated for trial before Judge Ann Aiken size that if the public trust doctrine is an attribute of sover-
of the Federal District of Oregon in October of 2018, having eign authority, then it must be an attribute of all sovereign
defeated several motions to dismiss.337 However, the case was authority, and not just that at the state level.348 In addition,
stalled after the Donald Trump Administration filed multiple states beyond the original thirteen colonies that inherited
petitions for the writ of mandamus, a rare judicial remedy by the public trust doctrine as an attribute of sovereignty upon
which the Administration sought to convince a higher court statehood must have received it through the sovereignty con-
to force Judge Aiken to reverse herself and dismiss the case.338 ferred by the federal government, suggesting a further basis
Two of these petitions were appealed unsuccessfully to the for a federal trust obligation.349
Supreme Court, but the latter received noteworthy attention Perhaps more importantly, the plaintiffs must convince
in the order denying it.339 The Court once again declined the court that the public trust doctrine should apply to atmo-
the petition,340 but the order included language suggesting spheric resources, which would represent a substantial exten-
this was because relief might still be available from a prefer- sion of the doctrine as it has been thus far understood in
able judicial forum, the Ninth Circuit.341 Despite her previ- the United States. Judge Aiken initially sustained the claim
ous decision to allow the case to go forward, Judge Aiken against a motion to dismiss on this ground, sidestepping the
acknowledged the Supreme Court’s implied suggestion by atmospheric trust issue by holding that the plaintiffs had also
certifying the question of whether the trial should proceed alleged cognizable claims of harm to coastal resources that
are clearly protected by the public trust doctrine.350 How-
ever, the Juliana plaintiffs have bolstered this element of their
334. Id. at 1233, 1253. lawsuit by adding an ambitious substantive due process claim
335. Id. at 1233, 1245; see also Ryan et al., Debating Juliana, supra note 330 (Wood for violation of their fundamental right to a livable climate,
on government responsibility for climate change); see also Ryan, The Historic
Saga, supra note 3, at 625–31 (discussing the atmospheric trust project before
implicating both the Due Process Clause of the Fourteenth
the filing of Juliana v. United States, which corrected some of the strategic is-
sues in the first batch of cases). 342. Order at 6, Juliana v. United States, No. 6:15-CV-01517-AA, 2018 WL
336. Ryan, The Historic Saga, supra note 3, at 627. 6303774 (D. Or. filed Nov. 21, 2018).
337. See Juliana v. United States—Major Court Orders and Filings, Our Chil- 343. See Brandi Buchman, Inaugural Hearing of House Climate Group Gathers Young
dren’s Trust, https://www.ourchildrenstrust.org/court-orders-and-pleadings Voices, Courthouse News Serv. (Apr. 4, 2019), https://www.courthouse-
[https://perma.cc/U66Z-JGY5] (listing all motions). news.com/inaugural-hearing-of-house-climate-group-gathers-young-voices/
338. Id.; Adam Wernick, Circuit Court Declines to Halt Climate Case Brought by [https://perma.cc/MU8D-SXMY] (reporting the anticipated trial date); Juli-
Youth Plaintiffs, Pub. Radio Int’l (Apr. 14, 2018), https://www.pri.org/sto- ana v. United States—Youth Climate Lawsuit, Our Children’s Trust, https://
ries/2018-04-14/circuit-court-declines-halt-climate-case-brought-youth- www.ourchildrenstrust.org/juliana-v-us [https://perma.cc/LV8J-EQBM].
plaintiffs [https://perma.cc/46LF-T6RE]; see also In re United States, 884 F.3d 344. See, e.g., Alec L. ex rel. Loorz v. McCarthy, 561 F. App’x 7, 44 ELR 20130
830, 838 (9th Cir. 2018). (D.C. Cir. 2014), cert. denied, No. 14-405, 2014 WL 6860603 (U.S. Dec. 8,
339. In re United States, 139 S. Ct. 452, 586 U.S. (No. 18A410, Nov. 2, 2018), 2014) (dismissing a similar claim brought in the U.S. Court of Appeals for the
https://www.scotusblog.com/wp-content/uploads/2018/11/18A410-In-Re- District of Columbia (D.C.) Circuit in 2014); see also Ryan, The Historic Saga,
United-States-Order.pdf. supra note 3, at 628–30 (discussing legal hurdles for the atmospheric trust
340. Id. litigation, but before the filing of Juliana v. United States, which corrected some
341. The Court’s order implied that the Ninth Circuit had previously dismissed the of the strategic issues in the early cases).
government’s efforts to dismiss the case for reasons that may no longer be valid: 345. Ryan, The Historical Saga, supra note 3, at 628–29.
At this time . . . the Government’s petition for a writ of mandamus 346. See PPL Montana, LLC v. Montana, 556 U.S. 576 (2012).
does not have a “fair prospect” of success in this Court because 347. See Ryan et al., Debating Juliana, supra note 330 (presenting Rick Frank’s argu-
adequate relief may be available in the United States Court of ment that Court’s passing statement in the PPL Montana dicta cannot resolve
Appeals for the Ninth Circuit. . . . Although the Ninth Circuit has the larger issue in a fully different factual context).
twice denied the Government’s request for mandamus relief, it did so 348. See Juliana v. United States, 217 F. Supp. 3d 1224, 46 ELR 20072 (D. Or.
without prejudice. And the court’s basis for denying relief rested, in 2016); see also supra Part IV.A. (discussing the public trust doctrine as a
large part, on the early stage of the litigation, the likelihood that plain- constraint on sovereignty); Ryan, The Historic Saga, supra note 3, at 574−75
tiffs’ claims would narrow as the case progressed, and the possibility (discussing scholarly interpretations of the public trust doctrine as an at-
of attaining relief through ordinary dispositive motions. Those reasons tribute of sovereignty).
are, to a large extent, no longer pertinent. The 50-day trial was sched- 349. Ryan, The Historic Saga, supra note 3, at 575, 45; Michael Blumm & Lynn
uled to begin on October 29, 2018, and is being held in abeyance only Schaffer, The Federal Public Trust Doctrine: Misinterpreting Justice Kennedy and
because of the current administrative stay. Illinois Central Railroad, 45 Envtl. L. 257, 399−405 (2015).
Id. 350. Juliana, 217 F. Supp. 3d 1224.
Amendment and the doctrine of unenumerated fundamental ulatory resources, by developing a remedial plan to reduce
rights under the Ninth Amendment.351 greenhouse gas emissions.359
In her dramatic ruling on the defendant’s motion to dis- Juliana is not the first legal action premised on the atmo-
miss, Judge Aiken originally held that the plaintiffs could spheric trust, nor will it be the last.360 Parallel atmospheric
move forward with their suit, concluding that there was a trust cases have been unfolding throughout the nation at the
substantive due process right to a climate system capable of state and federal levels, with incremental judicial success361
sustaining human life.352 Analogizing to the fundamental and some noteworthy success through administrative pro-
right to marry that the Supreme Court had recognized earlier cess.362 One atmospheric trust petition successfully forced
the same year,353 Judge Aiken opined: the creation of an executive climate action plan in Massa-
chusetts.363 Atmospheric trust cases are also being brought
“[As to t]he idea is that certain rights may be necessary to in other countries, including Uganda and India,364 inspired
enable the exercise of other rights, whether enumerated or not only by Juliana but by the 2015 Urgenda Foundation v.
unenumerated. . . . Exercising my ‘reasoned judgment,’ I Netherlands climate lawsuit that, citing a sovereign obligation
have no doubt that the right to a climate system capable of to protect the environment, required the Dutch government
sustaining human life is fundamental to a free and ordered to reduce greenhouse gas emissions by 25%.365
society. Just as marriage is the ‘foundation of the family,’
a stable climate system is quite literally the foundation ‘of
society, without which there would be neither civilization 359. Id.; see also Blumm & Wood, supra note 262, at 71–72.
360. Blumm & Wood, supra note 262, 67–77 (discussing state-based atmospheric
nor progress.”354 trust litigation).
361. The early judicial cases show a mix of failures and incremental successes. Many
were dismissed on displacement, preemption, or political question grounds.
Importantly, Judge Aiken did not conclude that the plain- E.g., Alec L. v. Jackson, 863 F. Supp. 2d 11, 15, 42 ELR 20115 (D.D.C.
tiffs’ rights had actually been violated in this case, only that 2012) (inter alia, dismissing ATL federal suit on the basis of displacement by
Clean Air Act); Chernaik v. Kitzhaber, 328 P.3d 799, 808 (Or. Ct. App. 2014)
they would have the opportunity to try and prove that viola- (reversing lower court’s dismissal based on the political question doctrine, sep-
tion in court. Even if the plaintiffs prevail at the district court aration-of-powers doctrine, sovereign immunity, and the court’s perceived lack
level, the odds are stacked against them on appeal, especially of authority to grant requested relief ).
Later cases began to erode initially negative precedent, though few pro-
if the case reaches the Supreme Court.355 Nevertheless, the duced the sought-after relief. See, e.g., Kanuk ex rel. Kanuk v. State of Alaska,
recognition of a fundamental right to climate security would Dep’t of Natural Res., 335 P.3d 1088 (Alaska 2014) (holding that the politi-
be a landmark ruling for the federal bench, if it is not extin- cal question doctrine did not foreclose plaintiff’s suit, but rejecting the relief
sought); Sanders-Reed v. Martinez, 350 P.3d 1221, 1225 (N.M. Ct. App.
guished by a contrary decision by the Ninth Circuit in the 2015) (holding that the New Mexico constitution recognizes public trust
summer of 2019. protection of the atmosphere but concluding that claims must be based on
On top of everything else, the case raises difficult ques- existing constitutional or statutory processes); Bonser-Lain v. Tex. Comm’n
on Envtl. Quality, No. D-1-GN-11-002194, 2012 WL 2946041 (Tex. Dist.
tions of remedy: if the plaintiffs actually prevail, what can Ct. July 9, 2012), vacated, 438 S.W.3d 887 (Tex. App. 2014) (in a case later
they realistically expect a court to do to vindicate their vacated on unrelated grounds, rejecting the agency’s determination that the
claim?356 Courts ordinarily do not order legislative or execu- public trust doctrine applies only to water, and affirming that the federal Clean
Air Act provides “a floor, not a ceiling, for the protection of air quality”).
tive action. But these plaintiffs argue that climate change, Several provide useful foundation for future success in atmospheric trust
and what they allege as the government’s complicity in cre- cases by recognizing the application of the public trust doctrine to the atmo-
ating it, is no ordinary circumstance.357 In addressing the spheric commons. See, e.g., Foster v. Wash. Dep’t of Ecology, No. 14-2-25295-
1 SEA, 2015 WL 7721362, at *4, 45 ELR 20223 (Wash. Super. Ct. Nov. 19,
issue of redressability to achieve standing to bring their suit, 2015) (expressly holding that the public trust includes air and atmosphere);
the plaintiffs persuaded at least Judge Aiken that they had Butler ex rel. Peshlakai v. Brewer, No. 1 CA-CV 12-0347, 2013 WL 1091209
framed a violation of their rights that was the proper subject (Ariz. Ct. App. Mar. 14, 2013) (assuming without deciding that the atmo-
sphere is a part of the public trust subject to the public trust doctrine).
of judicial review,358 and that the defendant agencies pos- 362. Blumm & Wood, supra note 262, 73–77 (discussing administrative relief in
sessed the power to redress their claim, using existing reg- Massachusetts and Washington).
363. On Sept. 16, 2016, the governor of Massachusetts responded to a win in court
by atmospheric trust youth plaintiffs by issuing Executive Order No. 569,
establishing an Integrated Climate Change Strategy for the Commonwealth.
351. Id. See Legal Updates: Sept. 16, 2016, Our Children’s Trust, https://www.our-
352. Id. at 1231–32; see also Ryan et al., Debating Juliana, supra note 330 (Wood childrenstrust.org/massachusetts/ [https://perma.cc/H27W-DG89]; see also
and Irma Russel discussing the fundamental right to a livable climate). Blumm & Wood, supra note 262, 272–74 (discussing Kain v. Mass. Dep’t of
353. Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (holding that the fundamental Envtl. Protection, 49 N.E.3d 1124, 1128 (Mass. 2016), the litigation leading
right to marry under the Due Process Clause of the Fourteenth Amendment to this executive order).
applies equally, across all fifty states, to same-sex couples as it does to opposite- 364. Mbabazi & Others v. Attorney Gen. & Nat’l Envtl. Mgmt. Auth., Civil Suit
sex couples). No. 283, High Court of Uganda Holden at Kampala (Sept. 20, 2012) (de-
354. Juliana, 217 F. Supp. 3d at 1231−32. cision pending), http://blogs2.law.columbia.edu/climate-change-litigation/
355. Ryan et al., Debating Juliana, supra note 330 (Huffman on the assertion of a wp-content/uploads/sites/16/non-us-case-documents/2012/20120920_Civil-
positive right, Frank on the odds of overturning a decision favorable to the Suit-No.-283-of-2012_complaint-1.pdf; Pandey v. India, National Green Tri-
plaintiffs on appeal). bunal at Principal Bench, New Delhi (2017) (undecided), http://blogs2.law.
356. Juliana v. United States, 217 F. Supp. 3d 1224, 46 ELR 20072 (D. Or. 2016) columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-
(briefing on requested remedy). case-documents/2017/20170325_Original-Application-No.-___-of-2017_
357. Ryan et al., Debating Juliana, supra note 330 (Huffman and Wood debating the petition-1.pdf; see also Climate Litigation Databases, Sabin Center for Climate
requested remedy); Brief for Petitioner at 23–28, Juliana v. United States, No. Change Law (2019), http://climatecasechart.com/?cn-reloaded=1.
18-36082 (9th Cir. filed Feb. 26, 2019). 365. C/09/456689/HA ZA 13-1396 (Neth. June 24, 2015), https://uitspraken.
358. Juliana, 217 F. Supp. 3d at 41–44. rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2015:7196.
It will be fascinating to see how Juliana and the other plaintiffs the opportunity to try their case and prove the
atmospheric trust claims unfold. Many have speculated harms caused and intensified by governmental action.371
that these cases simply reach too far from established legal On the matter of the atmospheric trust, the brief continues:
norms, and that they will inevitably fail as they progress
through legal channels toward the Supreme Court, even if As the Constitution protects our fundamental rights, the
they succeed at trial or on appeal to the Ninth Circuit.366 The Public Trust Principle protects our inheritance of resources.
claims implicate each of the critiques raised after the Mono It articulates the legal duty of the government, as the trustee
Lake case: property rights advocates worry about the ever- of property held in common, to conserve our vital natural
expanding doctrine that eats all in its path, environmental resources. The government holds and manages the public
critics worry about the bad precedent that losses along the trust for us, the trust beneficiaries. The government is obli-
way might create for more promising avenues of regulating gated to protect our inheritance of, and refrain from sub-
greenhouse gases, and legal process critics worry about the stantially impairing and alienating, the natural resources
separation of powers implications of the requested remedy.367 upon which all life and liberty depend. “The beneficiaries
Nevertheless, the Juliana case recalls of one of the most of the public trust are not just present generations but those
powerful features of the public trust doctrine, one that impli- to come.”372
cates the separation of powers controversy, but with a twist. Widespread attention generated by cases like Juliana and
It is the way that the doctrine enables citizens to use the Urgenda, together with other focal points of youth activism,
levers made available by the horizontal separation of pow- including the leadership of Swedish teenager Greta Thun-
ers to increase their efficacy in democratic participation, by berg, have inspired a growing chorus of youth climate pro-
invoking judicial review of legislative or executive action tests worldwide, including the International Climate Strike
that violates legal rules. This is a feature of our democratic on March 15, 2019, in which young people from every
design, hallowed in the United States since Marbury v. Madi- inhabited continent marched out of school to protest their
son.368 The Juliana plaintiffs may not succeed in their law- governments’ failures to respond to the increasing urgency
suit, but the very act of bringing it, and generating so much of scientific climate predictions.373 Even if Juliana is dis-
public support for their claim, puts pressure on the political missed by the Ninth Circuit, the case has helped coalesce a
branches in ways that amplify their voices as individual vot- youth movement that no motion to dismiss can undo.
ers and constituents.369 Indeed, the atmospheric trust cases reveal that “the separa-
For example, the Juliana case has generated grassroots tion of powers” is not the same thing as those powers working
support from over 36,000 individual young people, each in complete isolation.374 Citizens’ appeal to the judicial pro-
of whom signed on to an open amicus brief supporting the cess is rightly part of the wider political process. The ability
plaintiffs’ claims, and the list of supporters continues to to seek judicial review is especially important when citizens
grow.370 The children’s brief, as it has become known, begins: have felt silenced within the wider political process for unjust
Children are people and citizens. The Constitution protects reasons, such as invidious discrimination375 or government
the fundamental rights of children as fully as it does the corruption.376 The public trust doctrine thus facilitates a con-
rights of adults. The Constitution states clearly it intends to versation between the three branches of government about
“secure the Blessings of Liberty to ourselves and our Poster- the disposition of critical public natural resource commons
ity.” We are the Posterity the Constitution protects. Scien- in which all citizens have a stake, but which are often man-
tific studies show that government actions today, including aged far beyond the reach of the average voter’s influence.377
its actions of authorizing greenhouse gas discharges and sub- Viewed this way, it is not that the judiciary is antidemo-
sidizing fossil fuel extraction, development, consumption, cratically second-guessing the political branches—the sec-
and exportation, imperil plaintiffs’ constitutional rights to
life, liberty, and property. The government’s fossil fuel poli- 371. Brief of Amicus Curiae, supra note 370, at 5–6.
cies and actions threaten to push our climate system over 372. Id. (quoting Ariz. Ctr. for Law in the Pub. Interest v. Hassell, 837 P.2d 158,
tipping points into catastrophe. We ask the Court to grant 169, 23 ELR 20348 (Ariz. Ct. App. 1991)).
373. Harmeet Kaur & Madison Park, Young Environmental Activists Across the World
Skip School in a Call to Action, CNN (Mar. 15, 2019, 3:14 pm), https://www.
cnn.com/2019/03/15/world/climate-strike-students/index.html (“The move-
366. E.g., Ryan et al., Debating Juliana, supra note 330 (Huffman critiquing the ment, inspired by the actions of 16-year-old Swedish environmental activist
claims on these grounds). Greta Thunberg, spanned more than 100 countries and 1,500 cities, where
367. Ryan, The Historic Saga, supra note 3, at 621−22 (and sources cited therein). students gathered in the streets and at their state capitols to call for action.”);
368. 5 U.S. (1 Cranch) 137 (1803) (establishing the principle that courts may strike see also Pictures From Youth Climate Strikes Around the World, N.Y. Times (Mar.
down government actions that violate constitutional rules). 15, 2019), at https://www.nytimes.com/2019/03/15/climate/climate-school-
369. Ryan, The Historic Saga, supra note 3, at 630−31. strikes.html:
370. Brief of Amicus Curiae Zero Hour on Behalf of Approximately 32,340 Children From Sydney to Seoul, Cape Town to New York, children skipped
and Young People in Support of Plaintiffs-Appellees, Juliana v. United States, 217 school en masse Friday to demand action on climate change. It was a
F. Supp. 3d 1224, 46 ELR 20072 (D. Or. 2016), https://www.joinjuliana. stark display of the alarm of a generation. It was also a glimpse of the
org/joinjuliana_files/201931FinalYoungPeoplesBrief.pdf (last visited Apr. 10, anger directed at older people who have not, in the protesters’ view,
2019); see also Zero Hour Movement, Join the Youth Legal Action for a Safe taken global warming seriously enough.
Climate, https://www.joinjuliana.org [https://perma.cc/EV8Y-3ENT] (not- 374. Ryan et al., Debating Juliana, supra note 330 (Ryan opening statement).
ing that the brief was filed with over 36,000 names in support, and inviting 375. E.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954).
continued signatories while the case works its anticipated way toward the 376. See supra notes 60−82 and accompanying text, discussing the Illinois Central.
Supreme Court). 377. Ryan, The Historic Saga, supra note 3, at 630−31.
ond-guessing at issue is by citizens legitimately invoking their individual erects a weir preventing all else from navigating
rights to the judicial process. And especially for the Juliana the waterway, or in the climate context, where one polluter’s
plaintiffs and supporters, many of whom are too young to use of the atmosphere as a carbon sink equally compromises
vote, it is one of their only means of democratic participation. everyone else’s share. But in all cases, over-exploitation of the
Viewed this way, the role of judicial review within the commons by some individuals can compromise the resource
political process is a gambit of good governance. We would for all—or in the worst case, destroy it.
not want every disgruntled voter to make a federal case out The public trust doctrine represents one of the earliest
of every grievance, and to that end, the rules of standing known mechanisms for regulating natural resource commons
generally operate to screen out those with least merit. But problems. It first did so by recognizing these resources as
the gambit succeeds if the claim is legitimate enough to public commons, belonging to everyone equally, as set forth
withstand procedural barriers, and compelling enough to in ancient Roman law.382 Later, it added recognition of the
motivate public support within the wider political process. sovereign authority to maintain these resources for the pub-
In the ongoing and recursive dialectic between law and lic, as affirmed by early British383 and American law.384 More
culture, a compelling case can sometimes change the con- recently, it has been understood to confer sovereign respon-
versation, even if it does not immediately change the law. sibility to affirmatively protect these resources for the public,
For another example, consider the evolution of the Supreme as recognized by the Mono Lake case and its progeny.385
Court’s gay rights jurisprudence over the last thirty years— As the California Supreme Court recognized in Mono
a stunning progression that tracked the evolution of cultural Lake, the doctrine does not foreclose private use of public
norms, themselves influenced by compelling examples of commons. The Mono Lake case affirmed a variety of legiti-
civil rights litigation.378 mate private uses of the water commons at issue there—rec-
Juliana and the other atmospheric trust cases may yet reational use, scientific inquiry, commercial exploitation, and
prove a successful gambit for the plaintiffs, even if they sheer aesthetic beauty, among others—so long as these pri-
fail to prevail in the judicial process. The children bring- vate uses did not compromise the sustainability of the under-
ing these suits have generated unusual public support and lying res, the thing held in trust. For example, the public
international interest.379 Something about their argument trust doctrine did not prevent the state’s decision to allocate
has struck a chord with many ordinary people, motivating Mono Basin water for municipal use in Los Angeles—so long
greater interest in the efficacy of good climate governance to as doing so did not destroy the public trust values at Mono
protect the atmospheric commons on which we all depend. Lake. The Scott River case does not forbid all groundwater
The Juliana public trust claim reaches them in the same way extraction in the basis, so long as public trust values in the
the Mono Lake case reached ordinary people who never mus- river are maintained. The Juliana plaintiffs are seeking a cli-
tered excitement about the important public trust legal devel- mate action plan that balances legitimate needs for economic
opments in Marks.380 And indeed, this is how our political development against fundamental rights to climate security.
process, incorporating all three branches of government, is But the Mono Lake case and its progeny leave much to resolve
supposed to work. As in all complex policy dilemmas, the in interpreting the role of the public trust doctrine in protect-
procedural mechanics of governance are reinforced by politi- ing resource commons going forward.
cal safeguards.381 Each of these cases raise the question: to what resources
should the doctrine apply? Mono Lake applied the doctrine
Conclusion: Navigating Public and Private squarely within the traditional public trust purview of navi-
Interests in Natural Resource Commons gable waterways—but the case extended the protections of
the doctrine to new environmental values, farther up the
The public trust doctrine has long played a critical role in watershed, and farther out in time. The Scott River followed
helping us navigate the protection of public and private inter- directly from Mono Lake, applying the new doctrine pro-
ests that collide in natural resource commons. All public tecting non-navigable tributaries of a dependent navigable
resource commons are complicated by the demands that indi- waterway—but it extended that rationale to the new con-
viduals place on their share of a common pool. Sometimes, text of groundwater management. The Scott River decision is
the common pool is more easily disaggregated, as when one satisfying to water scholars who critique groundwater law as
individual takes a quantity of water from a waterway, or a long hampered by scientifically uninformed legal doctrines
single member from a species of biodiversity. Other times, it that artificially separate hydrologically intertwined ground
may be harder to disaggregate commons values, as when one and surface waters—yet it threatens settled expectations cre-
ated by the old legal regime. Meanwhile, the Juliana case
378. Compare Bowers v. Hardwick, 478 U.S. 186 (1986) (upholding state laws takes the same public trust rationale—sovereign obligation
criminalizing gay sex), with Lawrence v. Texas, 539 U.S. 553 (2003) (overturn- to protect a critical public commons from private misappro-
ing Bowers), and Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (establishing a
constitutional right to gay marriage).
priation—and applies it in a wholly new context. The idea
379. See, e.g., Wernick, supra note 338.
380. 491 P.2d 374, 380, 2 ELR 20049 (Cal. 1971) (expanding public trust protec-
tions to ecological, habitat, open space, climatic, and scenic values). 382. See supra Part I.A.1.
381. Cf. Jesse H. Choper, Judicial Review and the National Political 383. See supra Part I.A.2.–3.
Process (1980) (discussing the importance of political safeguards in 384. See supra Part I.A.4.–6.
good governance). 385. See supra Part III–IV.
of treating the atmosphere as a public commons is as old as trust resources—limiting what the sovereign can and cannot
Justinian, but applying the public trust doctrine to protect it do—because a constraint that the sovereign can easily extin-
is a relatively new idea. guish has no real force.
Next, who should administer the public trust? A defin- As for whose sovereign authority it constrains—state or
ing feature of the common-law doctrine is that it empowers federal or both—the most theoretically and historically con-
ordinary citizens to seek redress for public trust violations in sistent answer is that it constrains all sovereign authority. There
court. Separation-of-powers critics worry that the doctrine is no doubt that the doctrine constrains the states, based on
thereby overpowers the judiciary, enabling it to override leg- centuries of U.S. case law. But if it is appropriately understood
islative policymaking. Yet, this critique may be overblown, as a limit on sovereign authority over public commons, then
not only because it discounts the way that judicial review as an intellectual matter, it should not matter whose sovereign
further empowers democratic participation, but also because authority is at issue—it constrains whatever authority governs
traditionally the law of trusts has always been interpreted the relevant commons. This answer also best accounts for the
and enforced by courts. If the trust analogy holds, then who history of state and federal turn-taking on managing public
better than judges to oversee the public beneficiary’s interest trust resources, given that most states inherited their trust-
in trust resources against self-serving or neglectful manage- impressed resources through the intervening medium of fed-
ment by the legislative trustee? The government is always eral sovereign authority, by which the U.S. government held
under a duty to protect the public; it is the veritable pur- these resources until they could be disbursed to new states.386
pose of government, and the charge underlying the police The Supreme Court’s dicta in PPL Montana characterizing
power from which it generally operates. But while govern- the doctrine as a feature of state law is definitely problematic
ment decisions under the police power get a lot of judicial for claims that depend on a federal trust—but that passing,
discretion, some public trust obligations are less open to out-of-context reference should not be authoritative when the
interpretation. Courts may be the best venue for evaluat- Court properly considers this issue for the first time.387 As it
ing government decisions that may transgress the acceptable may well do in the next few years, if the Juliana case or a
margins of interpretation. related claim makes it to the High Court.
Finally, what is the nature of the constraint, and to what In the meantime, the state and lower courts—and increas-
authority does it apply? These are, perhaps, the most inter- ingly, legislative and executive actors—will continue to shep-
esting and difficult questions raised by the Mono Lake case herd the protection of public trust values in the separate but
and its progeny. The Mono Lake case established the nature interlocking roles within the political processes of good gov-
of the trust as something beyond the ken of ordinary com- ernance. The doctrine will continue to help us navigate the
mon law, without fully resolving the question of its consti- inevitable clash between public and private interests in natu-
tutive status. As discussed in Part IV, the extent to which ral resource commons, a clash that is destined to intensify
the common-law doctrine exceeds conventional common- with the increasing pressure we are putting on public com-
law limitations remains debated, although most states that mons resources like air, water, biodiversity, and climate—and
have addressed the matter follow the California approach perhaps other commons the law has yet to address. So long
of placing it beyond the reach of ordinary statutory abroga- as the doctrine is functioning, under whatever operative legal
tion. This approach seems most consistent with a doctrine theory, we can all take comfort in the knowledge that critical
that meaningfully constrains sovereign authority over public public commons will have a legal sentry and safeguard.
386. See Ryan, The Historic Saga, supra note 3, at 573−74:

[T] he public trust doctrine must constrain federal authority, because
the implicit trust obligations of most states arose by delegation of
federal authority over lands previously held in federal ownership. . . .
[Other than the original thirteen colonies, all states inherited their
trust obligations through the medium of federal sovereignty that ap-
plied before their lands were carved out of federal holdings. The states
must have inherited a pre-existing trust obligation . . . because there
is no clear legal moment when new trust obligations were expressly
conferred. Therefore, the doctrine must have implicitly inhered at the
federal level before it was delegated to the states, and by this theory,
it remains there in application to all trust resources that were not del-
egated to the states.
387. See Ryan et al., Debating Juliana, supra note 330 (Frank discussing the PPL
Montana dicta).
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George Washington Journal of

Energy & Environmental Law

Nicole Bayne Natasha Rao

Dean Lee Paddock, Faculty Advisor

Magdalena Filipiuk Margaret G. Czepiel

Dean Lin Harmon-Walker, Faculty Advisor

SUMMER 2019 CONTENTS VOL. 10 NO. 1

Cover photo courtesy of The George Washington University Law School.

Summer 2019 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW 1

in part, by a controversial nonacquiescence policy adopted by A. Intercircuit Nonacquiescence

24. Figler, supra note 19, at 1667.

197. 20 C.F.R. § 404.985(e) (2016).

14 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 1

Summer 2019 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW 15

32 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 1

I. Evolution of the Rights-Based Approach

Summer 2019 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW 33

71. Id. at 1261.

38 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW Vol. 10 No. 1

Summer 2019 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW 39

Introduction California,8 and the atmospheric trust climate advocacy

4. State Constitutions Pennsylvania’s super-statutory public trust doctrine,

C. The Aftermath: The Water Board’s Decision 1631

2. Non-Navigable Tributaries 3. Duty of Ongoing Supervision

386. See Ryan, The Historic Saga, supra note 3, at 573−74:

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