Natural resource issues are inherently difficult for courts to rule on. There are competing interests from various parties who seek to keep resources pristine in their natural state, seek to use them for commercial use, or who want to keep them accessible for public use. Professor William Araiza recognizes that no solution to the problem is easy and addresses these issues in his most recent article, “The Public Trust Doctrine as an Interpretive Canon,” which was published this year by the University of California at Davis Law Review.
“Interpreting statutory and administrative decisions is something that courts do every day,” Araiza explained in a recent interview. “Courts regularly use canons in statutory interpretation. What I’m suggesting is that courts consider the public trust doctrine as a background canon when they interpret statutes and regulations that impact public trust values.”
Araiza noted that the legal background for the public trust doctrine traces its origin to Roman law. Beginning with the use of water—Roman law recognized that some natural resources were to be held in common for public use. The idea of holding water and beaches in common for public use translated to the public being allowed to fish, travel, and enjoy the water and land. Over centuries the doctrine evolved to include rivers and the right to hunt.
The primary American case dealing with this topic was the 1893 Supreme Court case, Illinois Central Railroad v. State of Illinois. The Court established the concept of a public trust, ruling in favor of the State of Illinois, which attempted to withdraw a grant of lakefront land to the railroad. If the state had sold the land to Illinois Central the sale would have impeded access to the public of this natural resource. The Court ruled that the state, as the land’s public trust, could not impede access.
“The state does not have the sovereign power to alienate public trust resources,” Araiza explains. “Natural resources are always held in public trust for the public; thus, the trustee does not have the right to alienate its natural resources.”
Araiza points out that the legal foundation for this ruling is vague. “It could be based on state common law, federal law, or an inherent notion of sovereignty,” he said. “This ambiguity is one of the consequences of Swift v. Tyson, a mid-19th century case that suggested that there was a federal common law.”
The question of what the Illinois Central case was based on has never been answered, which makes it difficult to understand, Araiza explained. “One of the great criticisms of this doctrine is that it involves courts in making resources allocation decisions.” The problem he articulates is that “a generalist, non-expert, non-democratically accountable court is left making decisions about resource allocation decisions.”
In his most recent article, Araiza argued that the public trust doctrine ought to be recognized as applied to natural resources more generally. Even while he called for an expansion of the scope of doctrine, he argues that the power of the expanded doctrine ought to be limited. He wrote that the public trust doctrine should be seen as a canon of interpretation that curtails both statutory and regulatory decisions in favor of exploitation. “My version of the doctrine would not stop a decision to open a resource for commercial exploitation,” he said. “What it would simply do is ensure that the way the law is interpreted would reflect a backdrop that the public trust doctrine exists, and informs how decisions are made.”
“The public trust doctrine is a fundamental principle of American law, yet it is difficult to apply,” Araiza added. “The interpretative canon, I believe, makes a lot of sense as courts seek to make sense of the public trust doctrine.”