| The public trust doctrine is a legal principle that states that the waters of a state, the land beneath them, and the shorelines are held by the state in trust for the use and enjoyment of the people. The public trust doctrine was originally a part of a compilation of Roman law ordered by the Emperor Justinian, which stated that "the air, running water, the sea, and consequently the shores of the sea" were "by law of nature . . . common to all mankind." This simple principle, which recognized that access to waterways was often a matter of survival, was incorporated into English common law, which is the basis of American law. Common law is the law that is created through time by judges who decide cases based on the way that earlier cases were decided. Although statutes have replaced much of the common law that used to be in force in the United States, the public trust doctrine survives, and many states have incorporated it into their own constitutions, converting the public trust doctrine into statutory law. States that have done so may pass regulations and ordinances regulating the use of land held in trust for the public that are consistent with their constitutions.
As the United States grew from its original 13 states, each new state that entered the union acquired control over its own waters and associated lands, each holding them in trust for its own citizens as did the original 13. In general, the public trust doctrine extends to tidewaters to the high-water mark, tidelands, navigable waters, and permanently submerged lands. In Massachusetts and Maine, the shallowness of the shoreline caused a reliance on private construction of wharves for commerce early in those states' histories; thus, the public trust doctrine was modified to allow private ownership of shore property to the low-water mark. In keeping with the public trust doctrine, the public was granted access to the privately-owned land below the high-water mark, but that access was limited to fishing, bird-hunting, and navigation.
The evolution of the public trust doctrine in the United States is really the story of the birth and development of environmental law. Early in the history of the United States, the focus of the public trust doctrine was the protection of public access to waterways for the purposes of commerce, navigation, and fishing. Over the years, hunting, swimming, recreational boating, and the preservation of scenic views and wildlife habitats have been added to the umbrella of protection provided by the public trust doctrine, imposing upon the government the affirmative duty to manage, protect, and conserve fish, wildlife, and ecosystems. The purpose of protecting natural resources from the adverse effects of human activity and to preserve them for the enjoyment of future generations has been the impetus behind many modern environmental statutes. Even environmental statutes enacted at the federal level are designed to coordinate regulatory activities at the state level, recognizing the state's role in protecting and preserving waterways, habitats, wildlife, and other resources it holds in trust for the public. Copyright 2010 LexisNexis, a division of Reed Elsevier Inc. |