The Public Trust Doctrine: A Tragedy of the Common Law
Rasband, James R., Texas Law Review
The Public Trust Doctrine: A Tragedy of the Common Law
OYSTER WARS AND THE PUBLIC TRUST: PROPERTY, LAW, AND ECOLOGY IN NEW JERSEY HISTORY. By Bonnie J. McCay.^ Tucson: The University of Arizona Press, 1998. Pp. xxxi, 246. $45.00.^^
During the last thirty years, few issues in natural resources law have received more scholarly attention than the public trust doctrine, the doctrine that a state legislature has a trust obligation to the public at large which prohibits it from permanently privatizing certain natural resources.' The reasons for this interest are not particularly mysterious. For reformminded scholars disenchanted with the historical eagerness of state legislatures to exploit and consume natural resources, the public trust doctrine symbolizes something of a legal holy grail: an extra-constitutional, countermajoritarian check on the natural resource allocation decisions of misguided legislative majorities.2 On another side of the debate-the side on which I find myself-the public trust doctrine is viewed as more akin to the Sirens' song of Greek mythology: the promise of reversing previous resource misallocations is alluring but the price of that satisfaction is too steep. Application of the doctrine can result not only in a dangerous usurpation of legislative authority3 but also in a potential violation of the Fifth and Fourteenth Amendments when a prior grant of trust resources is revoked or modified without payment of just compensation.4
Unsurprisingly, the competing perceptions of the promise or peril of the public trust doctrine have spawned a wide variety of law review articles.5 Dr. Bonnie McCay's Oyster Wars and the Public Trust addresses an area neglected in the legal literature: the key role that nineteenth-century New Jersey oyster disputes played in the development of the public trust doctrine. To those unfamiliar with the origins of the doctrine, this focus may seem odd. Why New Jersey? Why oysters? In fact, the focus is quite logical and creates some of the book's value. It is logical because the two seminal decisions that ultimately gave birth to the modern public trust doctrine-Arnold v. Mundy6 and Martin v. Waddell's Lessee7-both grew out of nineteenth-century New Jersey oyster disputes. The focus on the oyster industry adds value because public access to the oyster resource presents an ideal case study for application of public trust principles.
The core proposition of the public trust doctrine is that the state must hold land under navigable water (originally defined as those waters which ebbed and flowed with the tide8) in trust for the people, so that the people may use those lands for purposes of navigation, commerce, and fishery.9 Oysters, which are physically tied to land under navigable water,10 and are part of the ocean fishery, are thus the prototypical public trust resource. Yet because oysters are attached to land, just like timber and minerals, they are also ideal candidates for privatization. Thus, from its beginnings, the oyster industry was a flash point for public trust disputes. What early oyster disputes reveal about the origins and evolution of the public trust doctrine will be the focus of this review.
The review discusses two contributions that Oyster Wars makes to the public trust literature. The first is a function of McCay's approach to tracing the development of the public trust doctrine. Rather than focusing solely on the "major court cases for both their content and their contributions to an evolving common law,"11 McCay also takes what she terms a "more anthropological" approach: namely, she explores "the events, issues, and people behind the cases and decisions and how they might be connected with one another."12 This contextualized exploration of the foundational cases of the public trust doctrine is valuable because it provides new insights into those cases. The second contribution of Oyster Wars is simply its focus on the oyster industry. As discussed above, the laws, customs, and practices of the industry provide an ideal case study into early legal, political, and social understandings about the state's authority to privatize a core trust resource.
Although the focus of this review will be on the contributions of Oyster Wars to the public trust debate, this is not necessarily McCay's focus. McCay is clear that her interest in the public trust doctrine is only incidental to her research on common property regimes.13 Thus, McCay uses her anthropological approach not simply to contextualize and broaden understanding of the development of the public trust doctrine, but also to provide "access to larger or crosscutting domains of social structure or culture norms in conflict and consensus."14 The particular social structure and cultural norm in which McCay has the most interest is the allocation of natural resources. Specifically, she uses the oyster industry and the development of the public trust doctrine to dispute one of the basic axioms of natural resource policy: Garrett Hardin's famous tragedy of the commons thesis that open access to a natural resource leads inevitably to overexploitation of the resource.15
The review briefly addresses McCay's criticism of Hardin. It turns out that McCay's dispute with Hardin is less about his theory and more about his language, or what McCay refers to as the "narrative" of the tragedy of the commons.16 McCay would like us to think less in terms of a commons as a necessary "tragedy" and more in terms of a commons having great social value if managed correctly. Her concern is that the narrative of commons as tragedy inexorably gives impetus to an anticommons solution, namely privatization. And privatization of natural resources is McCay's real enemy. Thus, McCay suggests that the instances of overexploitation in the New Jersey oyster fishery were generally a result of a "mismanaged commons"17 that resulted in a "tragedy of the commoners"18 rather than a tragedy of the commons. McCay seems to believe that altering this vocabulary (or, as she might say, promoting an alternative narrative) may stem the privatization tide and make natural resource policymakers more inclined to look at alternative solutions. This Review, however, concludes that it is the theory behind Hardin's thesis and not his language that ultimately drives natural resource policy. And McCay's research on the New Jersey oyster industry does nothing to diminish the theory's validity.
II. The Oyster Industry and the Public Trust Doctrine
A. The Debate Over the Origins of the Public Trust Doctrine
To those engaged in the public trust debate, McCay's contextual exploration of the development of the public trust doctrine will be of particular interest with respect to one prominent issue in that debate: the dispute over the doctrine's origins. Recognizing that judicial review and invalidation of legislative action generally require a constitutional basis, some supporters of the public trust doctrine have worked to locate the public trust doctrine in a constitution,19 or if not in a constitution, then in a long-established line of common-law cases. The theory behind this latter strategy is that any countermajoritarian criticism is at least muted if the legislature can be said to have impliedly understood-by virtue of that established precedent-that its grant of a trust resource would be subject to revocation. Locating the doctrine in long-established precedent also attempts to respond to the doctrine's critics who have suggested that exercise of the doctrine to revoke a prior grant of a trust resource may be a taking.20 If the doctrine is long-standing, a private grantee is arguably on notice of the state's right of revocation. Thus, when the state actually revokes a prior grant, it is merely exercising an option to which the grantee's property right was always subject.21 Others of us view the public trust doctrine as a judicial invention of more recent vintage.22 If this view is correct, the legitimacy of the doctrine's countermajoritarian content and its uncompensated taking of property rights is undermined.23
The debate over the antiquity of the public trust doctrine has given rise to competing historical narratives that need some description if McCay's contributions to the debate are to be evaluated. Advocates of the doctrine generally trace the public trust doctrine all the way back to Roman law and The Institutes of Justinian, which provided that " 'all of these things are by natural law common to all: air, flowing water, the sea and, consequently, the shores of the sea.' " 24 They then track this idea that the shores of the sea were not capable of private ownership from Roman law into English common law. They suggest that the crown owned all the foreshore25 in England but was prohibited from alienating it to private owners because the crown was obligated to hold it in trust for the people.26 This understanding, they contend, made its way into American law in two nineteenthcentury American cases, both of which involved oyster disputes.
The first of those cases was a New Jersey Supreme Court decision in 1821-Arnold v. Mundy.27 In that case, Arnold contended that Mundy had trespassed on his oyster bed and stolen oysters which he had planted there.zs Arnold claimed title to the oyster bed by virtue of mesne conveyances dating back to a seventeenth-century royal charter from Charles II, King of England, to his brother, the Duke of York.29 Ruling in favor of Mundy, Justice Kirkpatrick held that Arnold's title was invalid, because the English crown never had the authority to convey submerged lands. The crown, said Kirkpatrick, was obligated to hold such lands "as a trustee to support the title for the common use."30 In dicta, Kirkpatrick added that New Jersey was under the same obligation as the crown: to hold land under navigable water in trust for the people.31
The next stop in the narrative of most public trust proponents is Martin v. Waddell's Lessee.32 There, the United States Supreme Court, in another oyster dispute, interpreted the same crown conveyance at issue in Arnold v. Mundy.33 Closely following Justice Kirkpatrick's language, Justice Taney suggested that at least "since Magna Carta" the crown was under a duty to hold land under navigable water in trust for the people and could not alienate it.34
From Martin, the narrative proceeds to Illinois Central Railroad v. Illinois,35 an 1892 United States Supreme Court decision. Whereas Arnold and Martin had each focused on the crown's power to alienate land under navigable water, Illinois Central presented the question whether a state could do so. In 1869, the Illinois legislature granted to the Illinois Central Railroad more than one thousand acres of submerged lands extending out one mile under Lake Michigan from Chicago's waterfront.36 In 1873, however, the legislature repealed the grant.37 Writing for a 4-3 majority, Justice Field held that Illinois, like the crown, had an obligation to hold land under navigable water in trust for the people, and thus, that the 1869 grant was voidable without compensation.38 Justice Field did, however, admit exceptions to this trust responsibility, suggesting that grants of parcels "for wharves, piers, docks, and other structures in aid of commerce, and grants of parcels which, being occupied, do not substantially impair the public interest in the lands and waters remaining" were not violative of the state's trust responsibility.39
In sum, the public trust doctrine's proponents generally view the evolution of the doctrine as a logical march from Roman law, through English common law, to Arnold and Martin, and finally to Illinois Central. Indeed, these days, most courts and commentators simply begin with Illinois Central and then address whether the doctrine should be expanded beyond land under navigable water to the water flowing over that land and to other associated public amenities.40
Others of us believe the history tells quite a different story. To begin with, detailed research into Roman law shows that the sovereign made a variety of private grants of land under navigable water and perceived no restraints on its power to do so.41 The same was true in England. British barrister Stuart Moore's exhaustively researched 1888 treatise entitled A History of the Foreshore indicates that the crown actually granted away most of England's foreshore and that private fisheries were the rule rather than the exception.42 During the reign of Queen Elizabeth, however, one of her courtiers, a lawyer named Thomas Digges, developed an argument for crown ownership of the foreshore. That argument, however, had nothing to do with fulfilling a public trust and everything to do with augmenting the purse of the Exchequer. Digges published a tract claiming that the foreshore was part of the royal prerogative, and thus, that no man could hold title to any part of the foreshore absent a clear and specific grant by the crown.43 Even though Digges's theory reasserted crown ownership over previously granted lands, it was different than the modern public trust doctrine. Digges never argued that the crown was bound to hold such lands. Indeed, his theory expressly provided that the crown could grant such lands as long as it did so clearly and explicitly.44 Digges hoped that by establishing prima facie crown ownership, the crown would be able to challenge previous grants as insufficiently clear, recover portions of the foreshore, and then regrant them at a handsome profit.45
This "prima facie theory" of crown ownership was given the cold shoulder in England for over one hundred years. In 1786, however, it took root in England's common law when Lord Chief Justice Hale incorporated it uncritically into his famous treatise De Jure Maris et Brachiorum Ejusdem (Concerning the Law of the Sea and Its Arms).46 The theory was then incorporated into America's early common law when influential commentators and courts relied on Hale's treatise.47 Crown or (postRevolution) state ownership was presumed but a clear and explicit grant of the foreshore or a fishery could rebut that presumption.48
This background shows just how inventive and aggressive Justice Kirkpatrick and Justice Taney were in Arnold and Martin when they, respectively, ruled and suggested49 that the crown could never have granted the disputed lands because it had a duty to hold those lands in trust for the people. Their reasoning did not spring from the common law. To the contrary, it ignored the fact that the crown had actually alienated most of the foreshore. And, it ignored the prima facie theory, which held that even though crown ownership was presumed, the crown still had power to grant the foreshore as long as it did so plainly and unequivocally. Kirkpatrick's and Taney's decisions thus did not ferret out a long-extant principle of sovereign obligation to maintain navigable waters as a public common. Rather, the decisions were an inventive effort to clear New Jersey's title to its foreshore (by holding invalid the crown's pre-Revolution conveyances).50
Inventing a trust obligation for a monarch in order to clear a new state's title is not what critics of public trust doctrine find most disturbing about the two opinions. The greater concern is that the opinions set the stage for Illinois Central's application of the same trust responsibility to a democratically elected state government. This is particularly true of the opinion of Justice Kirkpatrick, which opined that no sovereign could "make a direct and absolute grant of the waters of the state, divesting all the citizens of their common right."51 Equating the crown and a state legislature was flawed in two senses. First, as a historical matter, it ignored the distinction between crown and parliament. Whatever the power of the crown to convey the foreshore, it had always been clear at common law that parliament had the power to grant the foreshore.52 And the states, of course, inherited the sovereign attributes of both crown and parliament. Second, equating the need for limiting the crown's power to divest the citizens of their common right with a need for imposing a like limitation on state legislatures ignores the basic political principle that in a democracy the citizens themselves are sovereign.53
B. Oyster Wars' Contribution to the Debate on the Origins of the Public Trust Doctrine
1. Contextualizing the Foundational Public Trust Cases.-With these competing historical narratives in place, it is possible to discuss McCay's contribution to the public trust literature.54 That contribution is two-fold. First, as advertised, McCay's anthropological approach to the major court cases like Arnold and Martin does bring to light a number of facts that broaden and enhance understanding of the foundational public trust cases. For example, one of the common criticisms of Arnold is that the decision's author, Justice Kirkpatrick, was "an obscure and unprepared state court judge," not up to resolving the case's legal complexities.55 This suggestion derives from Kirkpatrick's comment in Arnold that he had not been able to perform as much research as he would have liked.56 But McCay shows that Kirkpatrick was neither obscure nor unprepared. He was one of the most eminent real estate lawyers of the time,57 and he had already authored another key opinion on public rights in the fishery.58 Another historical nugget McCay digs up is the fact that in 1824 the New