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. …