George Washington Journal of Energy & Environmental Law

Articles

Brian Gumz, Administrative 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, From Mono Lake to the Atmospheric Trust: Navigating the Public and Private Interests in Public Trust Resource Commons

Summer 2019Volume 10 No. 1

George Washington Journal of Energy & Environmental Law

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SUMMER 2019 CONTENTS VOL. 10 NO. 1

ArticlesBrian Gumz, Administrative 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

Summer 2019 GEORGE WASHINGTON JOURNAL OF ENERGY & ENVIRONMENTAL LAW 1

* 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.

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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2I. Overview of Agency Nonacquiescence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Intercircuit Nonacquiescence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3B. Intracircuit Nonacquiescence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4C. Venue-Choice Nonacquiescence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II. Nonacquiescence and EPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6A. General Principles of EPA Nonacquiescence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7B. Recent EPA Nonacquiescence Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1. NEDACAP and Amendments to CAA Regional Consistency Regulations . . . . . . . . . . . . . . . . . . . . . . . . 82. Nonacquiescence Following Iowa League of Cities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 0

III. Proposed EPA Intercircuit Nonacquiescence Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1A. Best Among Rivals: Intercircuit Nonacquiescence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1B. Proposed Features of EPA Nonacquiescence Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2

1. Presumption of Intercircuit Nonacquiescence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 22. Published Headquarters Concurrences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 23. Mechanisms for Deviating From Intercircuit Nonacquiescence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 4

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 4

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

Introduction

Few federal agencies have a knack for courting controversy like the U.S. Environmental Protection Agency (EPA). In the past few years alone, EPA has been at the helm of litigation over the Barack Obama Administration’s Clean Power Plan, subjected to calls for elimination by political candidates, and threatened with significant budget reductions by the Donald Trump Administration.1 However, far outside of the major headlines, the Agency has also stirred controversy through a little-known policy termed “administrative nonacquies-cence.” While the Agency’s recent nonacquiescence actions may have gone largely unnoticed, they will likely have last-ing implications for both EPA’s statutory authority and the development of environmental law.

Administrative nonacquiescence is the refusal of an admin-istrative agency to apply the precedent of a circuit court of appeals to its own proceedings.2 The process of nonacquies-cence begins when the agency loses an appeal in circuit court and the court’s decision sets precedent that is contrary to the agency’s nationally applicable policy.3 Most litigants who lose before a circuit court have three primary options: they can follow the court’s decision, petition for review through the en banc process, or petition for review at the U.S. Supreme Court.4 However, federal agencies have a fourth option: they may choose to ignore the court’s decision and keep adminis-tering their own policy.5 In other words, federal agencies may nonacquiesce to the circuit court’s decision.

Beginning in 1970—the year that President Richard Nixon established EPA—to 2012, EPA did not openly engage in nonacquiescence.6 As EPA’s General Counsel explained in 1987, “EPA’s general policy is to eschew [nonacquiescence]” and “the agency has avoided [nonacquiescence] as a tool of policy.”7 In 2012, however, the Agency’s position on nonac-quiescence changed dramatically.

First, the Agency announced that it would not follow a U.S. Court of Appeals for the Sixth Circuit decision regard-ing the Clean Air Act (CAA)8 in any jurisdiction outside of the Sixth Circuit.9 In 2014, the Agency’s announcement was

1. See Jonathan H. Alder, The En Banc D.C. Circuit Meets the Clean Power Plan, Wash. Post (Sept. 28, 2016), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/09/28/the-en-banc-d-c-circuit-meets-the-clean-power-plan/?utm_term=.82cf3c8a6127; Oliver Milman, Republican Candi-dates’ Calls to Scrap EPA Met With Skepticism by Experts, Guardian (Feb. 26, 2016), https://www.theguardian.com/environment/2016/feb/26/republican-candidates-donald-trump-eliminate-epa-law-experts. See, e.g., Office of Mgmt. & Budget, Exec. Office of the President, A Budget for a Better America 93 (2019), https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/budget/fy2018/2018_blueprint.pdf (threatening to cut EPA’s budget by 31 percent); U.S. EPA, EPA’s Budget and Spending, https://www.epa.gov/pla-nandbudget/budget [https://perma.cc/PB8G-ANPN].

2. See Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Admin-istrative Agencies, 98 Yale L.J. 679, 681 (1989).

3. Id.4. Id.5. Id.6. See infra Section II.B.7. Estreicher & Revesz, supra note 2, at 717 (quoting the authors’ summary of a

discussion with EPA’s General Counsel).8. 42 U.S.C. §§ 7401–7671q, ELR Stat. CAA §§ 101–618 (2012).9. See Nat’l Envtl. Dev. Ass’n’s Clean Air Project v. EPA (“NEDACAP I”), 752

F.3d 999, 1003, 44 ELR 20123 (D.C. Cir. 2014). See also infra Section II.B.1.

struck down by the U.S. Court of Appeals for the District of Columbia (D.C.) Circuit, which held that the Agency’s regulations did not allow EPA to nonacquiesce from cer-tain circuit court decisions under the CAA.10 In response to the D.C. Circuit’s opinion, the Agency issued a final rule in 2016 amending its own regulations to “fully accommodate intercircuit nonacquiescence,” noting that “[the CAA] does not specifically address how the agency should respond to adverse court decisions” and that such determinations should be left to the Agency.11 In June 2018, a D.C. Circuit panel upheld EPA’s amended regulations and endorsed the Agen-cy’s authority to nonacquiesce under the CAA.12

Around the same time, EPA was also litigating a nonac-quiescence case involving the Clean Water Act (CWA).13 In 2013, the U.S. Court of Appeals for the Eighth Circuit held against the Agency in a decision involving permitting rules for wastewater treatment plants under the CWA.14 EPA, mir-roring its actions a year earlier under the CAA, refused to follow the Eighth Circuit’s decision outside of the Eighth Circuit, leading to another challenge in the D.C. Circuit.15 In February 2017, a D.C. Circuit panel dismissed the com-plaint on jurisdictional grounds, leaving the question of whether the Agency has authority to nonacquiesce under the CWA unanswered.16

Despite EPA’s emphatic embrace of its nonacquiescence authority, there is no legal scholarship focusing entirely on EPA’s ability to nonacquiesce.17 Moreover, there is very little recent legal scholarship on the issue of administrative non-acquiescence.18 Nonacquiescence legal scholarship reached a high-water mark in the late 1980s and early 1990s,19 buoyed,

10. NEDACAP I, 752 F.3d at 1009–10.11. Amendments to Regional Consistency Regulations, 81 Fed. Reg. 51102,

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.

16-1344 at 4-5 (D.C. Cir. June 8, 2018).13. 33 U.S.C. §§ 1251–1388, ELR Stat. FWPCA §§ 101–607 (2012). For a full

discussion of the Agency’s actions and resulting litigation, see infra Section II.B.2.

14. See Iowa League of Cities v. EPA, 711 F.3d 844, 43 ELR 20069 (8th Cir. 2013).

15. See Ctr. for Regulatory Reasonableness v. EPA, 849 F.3d 453, 454, 47 ELR 20031 (D.C. Cir. 2017).

16. Id.17. One article discusses a specific instance of EPA nonacquiescence in the mid

2000s, but does not analyze the Agency’s overall authority to nonacquiesce. See Kevin Haskins, A “Delicate Balance”: How Agency Nonacquiescence and the EPA’s Water Transfer Rule Dilute the Clean Water Act After Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 60 Me. L. Rev. 173 (2008).

18. In EPA’s final rule amending its regulations under the CAA, the most recent nonacquiescence scholarship cited by the Agency was a law review article pub-lished in 1991. See Amendments to Regional Consistency Regulations, 81 Fed. Reg. 51104 (Aug. 3, 2016) (to be codified at 40 C.F.R. pt. 56) (citing Dan T. Coenen, The Constitutional Case Against Intracircuit Nonacquiescence, 75 Minn. L. Rev. 1339 (1991)). Likewise, in the CWA nonacquiescence case before the D.C. Circuit, the only nonacquiescence scholarship cited in the Agency’s brief was a law review article published in 1989. See Brief for Re-spondent at 37–38, Ctr. for Regulatory Reasonableness, 849 F.3d 453 (D.C. Cir. 2017) (No.14-1150) (citing Estreicher & Revesz, supra note 2).

19. See, e.g., Samuel Figler, Executive Agency Nonacquiescence to Judicial Opinions, 61 Geo. Wash. L. Rev. 1664 (1993); Coenen, supra note 18; Samuel Est-reicher & Richard L. Revesz, The Uneasy Case Against Intracircuit Nonacquies-cence: A Reply, 99 Yale L.J. 831 (1990); Matthew Diller & Nancy Morawetz, Intracircuit Nonacquiescence and the Breakdown of the Rule of Law: A Response 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 the Social Security Administration (SSA) in the early 80s.20 However, over the past two decades, the topic has only occa-sionally resurfaced in legal literature.21 The current leading treatise on nonacquiescence—Nonacquiescence by Federal Administrative Agencies—was published in 1989.22 In short, nonacquiescence scholarship is in dire need of an update, and an analysis of EPA’s nonacquiescence authority and its impli-cations for environmental law is both ripe and necessary.

This Article argues that EPA should establish intercir-cuit nonacquiescence policies under each of its statutes in the interest of preserving the structure of the federal court system and ensuring the continued development of federal environmental law. The discussion below begins with an overview of the three types of nonacquiescence as identified by scholars—intercircuit, intracircuit, and venue-choice—and details the benefits and costs of each approach. Building off of this background, the discussion turns to EPA’s ability to engage in nonacquiescence under the statutes it enforces, and takes an in-depth look at EPA’s recent nonacquiescence actions under the CAA and CWA. Finally, this Article argues that EPA should adopt intercircuit nonacquiescence policies tailored to individual environmental statutes, and proposes several key features that these policies should have in com-mon to ensure both regulatory certainty and fairness.

I. Overview of Agency Nonacquiescence

Commentators divide agency nonacquiescence into three varieties: intercircuit nonacquiescence, intracircuit nonac-quiescence, and nonacquiescence in the context of venue choice (“venue-choice nonacquiescence”).23 Before diving too deeply into EPA’s recent record of nonacquiescence, it is important to define these three approaches and to delineate their associated benefits and costs.

note 2; Joshua I. Schwartz, Nonacquiescence, Crowell v. Benson, and Admin-istrative Adjudication, 77 Geo. L.J. 1815 (1989); Deborah Maranville, Non-acquiescence: Outlaw Agencies, Imperial Courts, and the Perils of Pluralism, 39 Vand. L. Rev. 471 (1986). Far from a comprehensive list of nonacquiescence articles published during this era, the above articles provide an overview of the scholarly voices and conversations surrounding nonacquiescence in the 1980s and early 90s.

20. See infra Section I.B.21. See, e.g., Nancy M. Modesitt, The Hundred-Years War: The Ongoing Battle

Between Courts and Agencies Over the Right to Interpret Federal Law, 74 Mo. L. Rev. 949 (2009) (discussing nonacquiescence at the Equal Employment Opportunity Commission); B. Ross E. Davies, Remedial Nonacquiescence, 89 Iowa L. Rev. 65 (2003) (proposing that scholars should recognize a type of nonacquiescence termed “remedial nonacquiescence”). While other articles have touched on nonacquiescence over the past two decades, scholarship fo-cusing entirely on nonacquiescence is sparse.

22. See Estreicher & Revesz, supra note 2; Davies, supra note 21, at 70 (call-ing Nonacquiescence by Federal Administrative Agencies the “still-authoritative 1989 article”).

23. See Estreicher & Revesz, supra note 2, at 687; Modesitt, supra note 21, at 958–59; Figler, supra note 19, at 1666–67. But see Davies, supra note 21, at 71 (arguing that in addition to the three generally recognized types of nonacqui-escence, there is a fourth variety termed “remedial nonacquiescence”).

A. Intercircuit Nonacquiescence

Intercircuit nonacquiescence occurs when “an agency refuses to apply the precedent of one circuit to claims that will be reviewed by another circuit.”24 Put another way, when a cir-cuit court issues a decision overturning an agency’s legal posi-tion, the agency would adhere to the adverse decision within that circuit’s jurisdiction but continue to act in accordance with its own legal position in other jurisdictions. Among the forms of agency nonacquiescence, intercircuit nonacquies-cence is the least controversial and the most widely accepted form of nonacquiescence.25 Additionally, in a general survey of major federal agencies, researchers found that “most agen-cies reported that in appropriate cases they would engage in intercircuit nonacquiescence . . . .”26

The justifications for agency intercircuit nonacquiescence may be divided into two related categories: preserving the structure of the federal judiciary and assisting courts in developing important questions of law through intercir-cuit dialogue.27 First, the practice preserves the structure of the federal judiciary by ensuring that each circuit is able to develop its own “law of the circuit”28 under which circuit panels are “bound by the holding of a previously published decision in that circuit.”29 Circuit courts abide by a rule of intracircuit stare decisis: a circuit panel decision is binding on all district courts and other future panels unless overruled by the circuit en banc or by the Supreme Court.30 Crucial to maintaining the “law of the circuit” is the rejection of inter-circuit stare decisis.31 The precedent of one circuit cannot be set by other circuit courts. While the opinions of sister cir-cuits may be persuasive, they are not binding.32

A rule against intercircuit nonacquiescence would require a form of intercircuit stare decisis at odds with each circuit’s ability to establish its own “law of the circuit.” Without some 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 1667.25. See Indep. Petroleum Ass’n of America v. Babbitt, 92 F.3d 1248, 1261 (D.C.

Cir. 1996) (Rogers, J. dissenting) (“While some courts, including this one, have criticized agencies that refuse to apply the settled law of the circuit that will review the agency’s action in a particular case, intercircuit nonacquiescence is permissible, especially when the law is unsettled.”); Davies, supra note 21, at 71 (“Practically no one objects to the first category of nonacquiescence—the intercircuit variety”).

26. Estreicher & Revesz, supra note 2, at 716.27. Figler, supra note 19, at 1669–70.28. Id. at 1670.29. Joseph W. Mead, Stare Decisis in the Inferior Courts of the United States, 12 Nev.

L.J. 787, 795 (2012).30. See id. at 796–98; Rebecca Hammer White, Time for a New Approach: Why the

Judiciary Should Disregard the “Law of the Circuit” When Confronting Nonac-quiescence by the National Labor Relations Board, 96 N.C. L. Rev. 639, 672–73 (1991). The justifications for stare decisis include promoting the predictability and consistency of decisions, ensuring fairness, and maintaining confidence and trust in the judicial system. See Hohn v. United States, 524 U.S. 236, 251 (1998); Mead, supra note 29, at 792–93.

31. See Estreicher & Revesz, supra note 2, at 735–36, 736, n.275; Figler, supra note 19, at 1670. Cf. Mead, supra note 29, at 790.

32. See Davies, supra note 21, at 90.33. See Estreicher & Revesz, supra note 2, at 737.


adverse circuit’s interpretation of the law would become the national interpretation of the law, regardless of whether other circuits would have upheld the agency’s position. In Nonac-quiescence by Federal Administrative Agencies, Profs. Samuel Estreicher and Richard L. Revesz provide a helpful illustra-tion of the problem:

Consider, for example, the question whether EPA can use independent contractors in enforcement proceedings under the Clean Air Act—the question at stake in United States v. Stauffer Chemical Co. If the first court of appeals to face this question determined that EPA could not use indepen-dent contractors, a bar against intercircuit nonacquiescence would prevent the agency from using such contractors any-where in the country. In addition, it is unlikely that any private party would have standing to argue that the agency should be given the option of using such contractors. Thus, no subsequent court would have the opportunity to decide whether independent contractors are part of the permissible arsenal of enforcement options. . . . [T]he adverse ruling of the court of appeals would therefore become binding . . . .34

As Estreicher and Revesz suggest, an outright bar on intercir-cuit nonacquiescence would effectively halt the development of important legal questions at the first adverse circuit court ruling.35 While there is no guarantee that the adverse circuit ruled correctly on the matter, the agency would have to adopt the adverse ruling even in circuits that had previously upheld its position, and “[t]he result would be a one-way ratchet in which the authoritative voice would be that of the first court of appeals to rule against the agency.”36

The second justification for intercircuit nonacquies-cence—intercircuit dialogue—is a natural consequence of preserving the “law of the circuit” by rejecting intercircuit stare decisis.37 By allowing multiple circuits to weigh in on the same agency interpretation, the “law of the circuit” cre-ates a dialogue between different circuits that benefits the development of federal law in two primary ways.38 First, con-flicting opinions among the circuits help the Supreme Court make better case selections by signaling that the circuits have encountered a difficult or contentious legal issue and increase the chances of a definitive ruling.39 Second, intercircuit dia-

34. Id. at 737–38.35. Although the Supreme Court has never expressly condoned intercircuit non-

acquiescence, commentators have pointed to the Court’s decision in United States v. Mendoza, 464 U.S. 159, 16 (1984), as signaling its approval of the practice. See Figler, supra note 19, at 1670–71; Davies, supra note 21, at 72. In Mendoza, the Court held that nonmutual offensive collateral estoppel could not be asserted against the government because a rule allowing new claimants to use collateral estoppel against the government, “would substantially thwart the development of important questions of law by freezing the first final deci-sion rendered on a particular legal issue.” Mendoza, 464 U.S. at 160. Similarly, barring agencies from engaging in intercircuit nonacquiescence would freeze an adverse circuit court decision in place by preventing the agency from reliti-gating the question in other circuits.

36. Estreicher & Revesz, supra note 2, at 738−39.37. See id. at 735–36.38. Id. at 736–37.39. See Heartland Plymouth Court MI, LLC v. NLRB, 838 F.3d 16, 21 (D.C.

Cir. 2016) (granting that “nonacquiescence allows for an issue’s ‘percolation’ among the circuits; generating a circuit split that can improve the likelihood of certiorari being granted.”); Estreicher & Revesz, supra note 2, at 736–37;

logue likely enables both the Supreme Court and circuit courts to reach better, more thoroughly reasoned decisions.40 Each new court to address an issue will likely “produce a more careful and focused consideration” of the matter than the court before it because the new court has the benefit of examining the legal reasoning of the circuits that have previ-ously addressed the question.41 Additionally, each new court will be “able to observe and compare the consequences of dif-ferent legal rules” in different circuits and can base its deci-sion on the observed impacts.42

However, intercircuit nonacquiescence is not without its drawbacks. A significant criticism of the practice is that it undermines a uniform application of the law by federal agencies.43 When an agency practices intercircuit nonacqui-escence, parties within the jurisdiction of an adverse circuit will be subjected to one interpretation of the law, while par-ties outside of that jurisdiction will be subjected to another. This drawback is shown in the prior example provided by Professors Estreicher and Revesz regarding EPA’s use of inde-pendent contractors. In circuits that had ruled against EPA, the Agency would not be able to use private contractors in CAA enforcement proceedings; on the other hand, in circuits that had not considered the question, the practice of using private contractors would continue. The resulting asymmetry might only be temporary as a decision by the Supreme Court or an act of the U.S. Congress would bind all circuits to one interpretation of the law.44

B. Intracircuit Nonacquiescence

Unlike intercircuit nonacquiescence, intracircuit nonac-quiescence has faced harsh criticism from both courts and commentators.45 Intracircuit nonacquiescence describes an

Davies, supra note 21, at 72; Figler, supra note 19, at 1670. Notably, in Men-doza, the Supreme Court recognized the benefits of intercircuit dialogue in the 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 long-standing practice of waiting for a circuit split before granting certiorari. Mendoza, 464 U.S. at 160.

40. See Estreicher & Revesz, supra note 2, at 737.41. Estreicher & Revesz, supra note 2, at 736. The Supreme Court has also en-

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 this Court grants certiorari.” Mendoza, 464 U.S. at 160. See also Johnson v. U.S. R.R. Ret. Bd., 969 F.2d 1082, 1093 (D.C. Cir. 1992) (“[T]here is an additional value to letting important legal issues “percolate” throughout the judicial system, so the Supreme Court can have the benefit of different circuit court opinions on the same subject.”) (citing Mendoza, 464 U.S. at 160).

42. Estreicher & Revesz, supra note 2, at 736.43. See id. at 741 n.302; Figler, supra note 19, at 1672.44. See Figler, supra note 19, at 1670; Estreicher & Revesz, supra note 2, at 741

n.302 (also noting that “these costs are no different than those that inhere in the rejection of intercircuit stare decisis”).

45. See, e.g., Johnson, 969 F.2d at 1093 (D.C. Cir. 1992) (“[T]he arguments against inter circuit nonacquiescence . . . are much less compelling than the arguments against intra circuit nonacquiescence.”); Grant Med. Ctr. v. Burwell, 204 F. Supp. 3d 68, 79 (D.D.C. 2016) (“Agencies that have followed a policy of intracircuit nonacquiescence have been roundly ‘condemned’ by every circuit that has addressed the issue.”); Figler, supra note 19, at 1672–73 (“Intracircuit nonacquiescence, by contrast to the other two forms of nonacquiescence is very controversial and raises serious doubt as to its constitutionality.”). The debate over the costs, benefits, and constitutional concerns of intracircuit non-acquiescence provoked a rather heated exchange across two volumes of the Yale


agency’s refusal to “follow the precedents of the circuit in which it knows an agency decision will be appealed.”46 In other words, an agency practices intracircuit nonacquies-cence when it receives an adverse circuit court decision, but refuses to conform its proceedings in future actions to the adverse decision despite knowing that the adverse circuit will review those actions.

Judicial and scholarly skepticism towards intracircuit nonacquiescence is rooted largely in constitutional con-siderations. While legal scholars have produced a variety of constitutional arguments against intracircuit nonacqui-escence, most commentators agree that, at the very least, intracircuit nonacquiescence poses a separation of powers problem.47 Intracircuit nonacquiescence may infringe on the judiciary’s power to interpret the law by enabling agencies to disregard circuit precedent in their administrative proceed-ings.48 As one court put it, “[t]he judiciary’s duty and author-ity, as first established in Marbury, ‘to say what the law is’ would be rendered a virtual nullity if coordinate branches of government could effectively and unilaterally strip its pronouncements of any precedential force.”49

One counterargument to the uneasy constitutionality of intracircuit nonacquiescence is that the practice encourages intercircuit dialogue and aids in the development of legal questions.50 Returning to the example of EPA’s use of inde-pendent contractors, Estreicher and Revesz posit a scenario in which the U.S. Court of Appeals for the Second Circuit strikes down the use of such contractors, but afterwards both the Sixth Circuit and the U.S. Court of Appeals for the Ninth Circuit uphold the practice:

It would be desirable for the agency to be able to go back before the Second Circuit and reargue its position in light of subsequent victories. The Second Circuit might be per-suaded by the arguments of the two other circuits, and the conflicting positions might be harmonized without the need for review by the Supreme Court.51

However, the benefits of this intercircuit dialogue are condi-tioned upon the circuit’s willingness to overturn past prec-edent and the agency’s success rate at convincing courts to do so.52 As some commentators have suggested, circuit reconsid-

Law Journal between Professors Estreicher and Revesz, who defended the prac-tice in some instances, and the lead counsels in a class action suit challenging the Social Security Administration’s intracircuit nonacquiescence policies. See Estreicher & Revesz, supra note 2, at 743–53; Diller & Morawetz, supra note 19; Estreicher & Revesz, supra note 19.

46. Figler, supra note 19, at 1668.47. See, e.g., Figler, supra note 19, at 1674; Coenen, supra note 18, at 1357

(“Courts and scholars widely agree that the key constitutional question con-cerning intracircuit nonacquiecsence is whether the practice transgresses the so-called ‘separation of powers principle.”); see also Coenen, supra note 18, at 1351–69 (collecting and discussing the various constitutional arguments against intracircuit nonacquiescence).

48. See Figler, supra note 19, at 1674; Diller & Morawetz, supra note 19, at 822.49. Stieberger v. Heckler, 615 F. Supp. 1315, 1357 (S.D.N.Y. 1985).50. Estreicher & Revesz, supra note 2, at 743.51. Id.52. See Davies, supra note 21, at 78; Diller & Morawetz, supra note 19, at 812.

eration of past precedent is so rare that only marginal intercir-cuit dialogue is produced by intracircuit nonacquiescence.53

Another argument in favor of intracircuit nonacquies-cence is that it promotes uniform application of the law by federal agencies across all circuits.54 Instead of the agency applying two interpretations of the law—which could lead to unfair outcomes, especially among competitive industries—the agency need only apply its interpretation of the law.55 However, as critics are quick to point out, the resulting “hori-zontal” uniformity across the circuits comes at the expense of “vertical” uniformity.56 While the agency may be apply-ing the law uniformly in its proceedings, the district courts are obligated to apply the law of the circuit. Parties who lose on the administrative level need only appeal their case to the federal courts to receive a favorable ruling. The lack of vertical uniformity effectively creates two legal regimes: one for well-heeled, sophisticated claimants who are able to seek judicial review, and one for “[t]hose not so blessed . . . [whose] claims will remain rejected on the basis of unfavor-able agency rules.”57 In addition to the fundamental unfair-ness of this scheme, these disparate results may also violate the Fifth Amendment’s Equal Protection Clause.58

A final argument in favor of intracircuit nonacquiescence is that the resulting horizontal uniformity may enable agen-cies to save on the administrative costs of training agency personnel to follow both the agency’s policy and adverse cir-cuit decisions.59 However, this benefit has also been disputed. As commentators have pointed out, simply adhering to the law of circuit could cut agency costs:

In many cases, nonacquiescence causes two rounds of administrative proceedings where only one would have been necessary if circuit rules had been applied by the agency in the first instance . . . . [T]here can be little question that the administrative costs of readjudicating every case where the circuit abides by its prior decisions would exceed those of compliance with case law.60

Moreover, the practice likely creates costs within the federal court system by increasing the volume of cases reaching the courts.61 When a circuit court overturns an agency policy, litigants will naturally seek review.62 If the agency acqui-esces to the circuit’s decision, the review would stop at the agency level, because the litigant would be satisfied with the

53. See, e.g., Davies, supra note 21, at 78; Diller & Morawetz, supra note 19, at 812.

54. Estreicher & Revesz, supra note 2, at 747.55. Id. at 747–49.56. See Coenen, supra note 18, at 1414–16; Diller & Morawetz, supra note 19, at

814–16 (noting that in the SSA disability benefits context, claimants waiting for their appeals to be heard in federal court “literally may not survive until the day when benefits are finally granted.”).

57. Coenen, supra note 18, at 1420; see also Estreicher & Revesz, supra note 2, at 749–50 (conceding that vertical disuniformity and resulting unequal adminis-tration of justice is a cost of intracircuit nonacquiescence).

58. Figler, supra note 19, at 1675.59. Estreicher & Revesz, supra note 2, at 748–49.60. Diller & Morawetz, supra note 19, at 814.61. Estreicher & Revesz, supra note 2, at 750; Diller & Morawetz, supra note 19,

at 817.62. Estreicher & Revesz, supra note 2, at 750.


agency’s determination.63 However, when the agency non-acquiesces to the circuit decision, litigants have to appeal their case to a federal court to take advantage of the change in circuit precedent.64

C. Venue-Choice Nonacquiescence

The final category of nonacquiescence describes an agency’s refusal to follow the case law of a circuit, “but review may be had either in that court or in one that has not rejected the agency’s position.”65 Put differently, an agency engages in venue-choice nonacquiescence when it refuses to follow the precedent of an adverse circuit, but cannot be certain that the adverse circuit will actually review its proceedings, or whether review will be had in a favorable circuit or a cir-cuit that has not considered the issue. As one colorful com-mentator described it: “Venue choice nonacquiescence is the Schrödinger’s Cat of administrative law.”66

A good example of an agency with a long-standing venue-choice nonacquiescence policy is the National Labor Rela-tions Board (NLRB). The National Labor Relations Act (NLRA)67 authorizes the NLRB to enforce the unfair labor practice provisions of the Act.68 Any person “aggrieved” by the NLRB’s final order in an NLRA case may seek review of the order in the circuit court where the unfair labor prac-tice occurred, in the circuit court where the person resides or transacts business, or in the D.C. Circuit.69 Therefore, where there are multiple “aggrieved” persons to the Board’s order, judicial review of the order could be had in multiple circuits.70 Therefore, the Board does not know whether its order will be reviewed in an adverse circuit or a non-adverse circuit, and the Board must conduct its proceedings largely in ignorance of the reviewing court.

Venue-choice nonacquiescence as practiced by the NLRB has been met with mixed reactions by courts.71 However,

63. Id.64. Id.65. Id. at 687.66. Davies, supra note 21, at 81.67. 29 U.S.C. §§ 151–169 (2012).68. § 156; Estreicher & Revesz, supra note 2, at 705.69. § 160(f ).70. Once the Board issues its order, determining a final venue for judicial review

is a matter of luck and timing. Under 28 U.S.C. § 2112(a) (2012), the Board must file the record in the court where review is sought. If two or more parties file in different circuits within 10 days of the Board’s order, the NLRB must apply to the Judicial Panel on Multidistrict Litigation to decide where it should file the record. §§ 2112(a)(1), (3). However, if only one petition for review is filed within the 10-day window, the Board will file the record with that court. § 2112(a)(1). Finally, if none of the parties file within 10 days, the Board will file the record with the first court to receive a petition for review, effectively setting up a first-to-file rule. Id. See also United Auto., Aerospace, and Agric. Implement Workers v. NLRB, 677 F.3d 276, 277 (6th Cir. 2012).

71. See Heartland Plymouth Court MI, LLC v. NLRB, 838 F.3d 16, 22–25 (D.C. Cir. 2016) (noting that while the circuit had previously approved of venue-choice nonacquiescence, in this particular case the Board improperly engaged in intracircuit nonacquiescence because it knew that the case would be ap-pealed to the D.C. Circuit yet persisted in applying an interpretation of the law contrary to circuit precedent); Johnson v. U.S. R.R. Ret. Bd., 969 F.2d 1082, 1092 (D.C. Cir. 1992) (distinguishing the NLRB’s permissible venue-choice nonacquiescence from the Railroad Retirement Board’s impermissible intracir-cuit nonacquiescence); NLRB v. Ashkenazy Prop. Mgmt. Corp., 817 F.2d 74, 75 (9th Cir. 1987) (holding that the Board should adhere to circuit precedent “unless the Board has a good faith intention of seeking review of the particular

many scholars have taken a kinder view of the practice, equating venue-choice nonacquiescence more to intercircuit rather than intracircuit nonacquiescence.72 Unlike intracir-cuit nonacquiescence, venue-choice nonacquiescence is not a bald-faced challenge to the judiciary’s Article III authority. While the agency’s position may resemble intracircuit nonac-quiescence to the reviewing court, in truth the agency con-ducted its proceedings without knowing whether its actions would be reviewed in an adverse or non-adverse circuit.73

Moreover, venue-choice nonacquiescence achieves many of the same benefits as intercircuit nonacquiescence by pre-serving the role of each regional circuit in developing the law of the circuit.74 A rule against venue-choice nonacquies-cence would force any agency operating under a broad venue provision to conform all of its administrative actions to the ruling of an adverse circuit, thereby preventing non-adverse circuits from reviewing the agency’s original position.75 Con-sequently, the Supreme Court would have greater difficulty choosing cases involving the agency for review. Likewise, nei-ther the Supreme Court nor other circuits would be able to reap the benefits of intercircuit dialogue in developing ques-tions of law concerning the agency.76

II. Nonacquiescence and EPA

As the NLRB example from above demonstrates, an agency’s internal structure and enabling statute largely determine how the agency may engage in nonacquiescence. EPA is no exception to this rule: the types of nonacquiescence avail-able to EPA are a product of the various environmental stat-utes administered by the Agency and the Agency’s regional enforcement structure.77 Until recently, the scope of EPA’s nonacquiescence authority went largely untested because the Agency has traditionally avoided nonacquiescence under any circumstance.78 However, both the Agency’s rulemak-ing under the CAA and litigation before the D.C. Circuit

proceeding by the Supreme Court.”); Allegheny Gen. Hosp. v. NLRB, 608 F.2d 965, 970 (3d Cir. 1979) (“But the Board is not a court nor is it equal to this court in matters of statutory interpretation. . . . For the Board to predicate an order on its disagreement with this court’s interpretation of a statute is for it to operate outside the law.”).

72. See, e.g., Estreicher & Revesz, supra note 2, at 741 (“For the most part, [venue-choice nonacquiescence] . . . raises the same issues as intercircuit nonacquies-cence”); Diller & Morawetz, supra note 19, at 802 n.8 (acknowledging that venue-choice nonacquiescence “raises different questions from intracircuit nonacquiescence”); Schwartz, supra note 19, at 1833–34 n.59 (“The distinc-tion recognized by Professors Estreicher and Revesz between intracircuit non-acquiescence and nonacquiescence in the presence of venue choice is useful because different factors bear on the lawfulness of nonacquiescence in these two situations.”). Notably, the D.C. Circuit also took a more favorable view of venue-choice nonacquiescence after the publication of Estreicher & Revesz’ seminal article. Compare Johnson, 969 F.2d at 1092, with Yellow Taxi Co. of Minn. v. NLRB, 721 F.2d 366, 382–83 (D.C. Cir. 1983).

73. See Estreicher & Revesz, supra note 2, at 742 (noting that reviewing courts sometimes treat venue-choice nonacquiescence as intracircuit nonacquiescence because, “from the perspective of that court, the agency’s behavior looks like intracircuit nonacquiescence” and courts often rush to criticize the practice “without considering the differences between [the two].”).

74. See Estreicher & Revesz, supra note 2, at 741.75. See id.76. See supra Section I.A. (discussing benefits of intercircuit nonacquiescence).77. See infra Section II.A.78. See Estreicher & Revesz, supra note 2, at 716.


Environmental Response, Compensation, and Liability Act (CERCLA),90 the Safe Drinking Water Act (SDWA),91 the Resource Conservation and Recovery Act (RCRA),92 and the Toxic Substances Control Act (TSCA).93 Each of these statutes contains a separate judicial review provision dictat-ing which courts may hear which cases.94 Consequently, EPA may be able to practice different types of nonacquiescence depending on the statute at issue and the circumstances of the particular case.

This distinction is best understood by comparing two dif-ferent statutes: RCRA and CERCLA. Under RCRA, EPA may issue permits for hazardous waste storage facilities.95 Judicial review of a particular permit may be sought by “any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts such business . . . .”96 Inter-ested “persons” could include states, national environmental groups, individual citizens, trade associations, or even other federal agencies.97 In effect, many circuits could potentially review a permitting decision, including circuits with adverse precedent. If EPA nonacquiesces to adverse circuit precedent when issuing a permit, the Agency would be engaging in venue-choice nonacquiescence because the Agency has no means of knowing which court will review the decision.

By contrast, suppose EPA wishes to remediate a hazard-ous waste dumping site in Illinois and recover the costs of its cleanup from the party responsible for dumping the waste.98 Under CERCLA’s judicial review provision, venue for the cost recovery action “shall lie in any district in which the [hazardous substance] release or damages occurred, or in which the defendant resides, may be found, or has his prin-cipal office.”99 If the defendant does all of its business in Illi-nois and also claims residence in Illinois, then EPA knows for certain that the U.S. Court of Appeals for the Seventh Circuit precedent will apply to the cost recovery claim. In this instance, the Agency would only be able to engage in intercircuit nonacquiescence by ignoring adverse precedent in another circuit, or intracircuit nonacquiescence by ignor-ing Seventh Circuit precedent.

Notably, however, many environmental statutes preclude any form of nonacquiescence by vesting sole review of certain nationally applicable agency actions in the D.C. Circuit.100

90. 42 U.S.C. §§ 9601–9675, ELR Stat. CERCLA §§ 101–405 (2012).91. 42 U.S.C. §§ 300f–300j-26, ELR Stat. SDWA §§ 1401–1465.92. 42 U.S.C. §§ 6901–6992k, ELR Stat. RCRA §§ 1001–11011.93. 15 U.S.C. §§ 2601–2692, ELR Stat. TSCA §§ 2–412 (2012).94. See 42 U.S.C. § 7607(b); 33 U.S.C. § 1369(b)(1) (2012); 42 U.S.C §§ 300j-

7, 6976, 9613(a)–(b); 15 U.S.C. § 2618(a)(1)(A).95. 42 U.S.C. § 6925.96. 42 U.S.C. § 6976(b).97. 42 U.S.C. § 6903(15).98. See 42 U.S.C. § 9604(a) (granting EPA remediation authority); 42 U.S.C.

§ 9607(a) (2012) (allowing EPA to recover costs of its remediation actions).99. 42 U.S.C. § 6913(b).100. See, e.g., 42 U.S.C. §§ 300j-7(a), 6976(a)(1), 6976(b), 7607(b)(1), 9613(a)–

(b). A notable exception to this general rule is the CWA, which provides that interested persons may challenge nationally applicable regulations in the cir-cuit court in which the person resides or transacts business affected by the regu-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).

under the CWA demonstrate that the Agency is presently engaged in intercircuit nonacquiescence and will continue to do so in the future.79 These cases help explain how the Agency approaches nonacquiescence and delineate counter-arguments to the practice.

A. General Principles of EPA Nonacquiescence

Nonacquiescence at EPA is guided both by the Agency’s internal structure and by the judicial review provisions of statutes administered by the Agency. EPA is headed by a sin-gle Administrator, who is appointed by the president with the advice and consent of the U.S. Senate.80 Working through a variety of specialized offices at EPA headquarters in Wash-ington, the Administrator develops the Agency’s nationally applicable programs and regulations.81 Implementation and enforcement of these national programs and regulations falls to ten regional offices, each of which oversees a designated geographical area.82 Most environmental statutes also allow EPA to delegate some of its enforcement and implementation authority to state governments.83

If enforcement responsibility falls on EPA, the Agency may either proceed by filing a civil or criminal enforce-ment action in federal court, or by initiating administrative enforcement proceedings.84 In an administrative proceed-ing, the case is first heard before an administrative law judge (ALJ) or regional judicial officer (RJO).85 The decisions of the ALJ or RJO may be appealed to the Environmental Appeals Board (EAB).86 The EAB’s decision represents the final Agency action, and may be appealed in federal court.87

Like the NLRB, EPA’s approach to nonacquiescence is largely dictated by the judicial review provisions of the par-ticular statute at issue. However, no single statute authorizes EPA to enforce federal environmental law. Rather the Agency was created by executive order and has since been tasked with enforcing a variety of environmental statutes.88 Today, EPA has sole or partial responsibility for administering over twenty statutes,89 including the CAA, the CWA, the Comprehensive

79. See infra Section II.B.80. Reorganization Plan No. 3 of 1970, 84 Stat. 2086 (1970) (codified at 5 U.S.C.

app. at 202 (2012)).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

Control Laws: How Are They Enforced? 8 (2014). See also 40 C.F.R. § 1.61 (2016).

83. See Esworthy, supra note 82, at 10. For instance, Section 402 of the CWA allows each state to administer its own permitting program for pollutant dis-charges, provided that the Administrator approves of the plan. 33 U.S.C. § 1342(b) (2012).

84. See Esworthy, supra note 82, at 22–24.85. See id. at 22–23.86. See Esworthy, supra note 82, at 23.87. A Citizen’s Guide to EPA’s Environmental Appeals Board, EPA 32

(2013), https://yosemite.epa.gov/oa/EAB_Web_Docket.nsf/8f612ee7fc725edd852570760071cb8e/26e637699cb1cc1685257b50004044f6/$FILE/Citi-zens%20Guide%20January%202013.pdf.

88. See Reorganization Plan No. 3 of 1970, 84 Stat. 2086 (1970) (codified at 5 U.S.C. app. at 202 (2012)). See generally The Guardian: Origins of the EPA, EPA Archive, https://archive.epa.gov/epa/aboutepa/guardian-origins-epa.html [https://perma.cc/2BAV-LZJU].

89. Laws and Executive Orders, EPA, https://www.epa.gov/laws-regulations/laws-and-executive-orders#majorlaws [https://perma.cc/8EZ2-7T35].


Under the CAA, for instance, the D.C. Circuit has sole juris-diction over EPA actions that set national ambient air quality standards, standards for new stationary sources of air pol-lution, and motor vehicle emission standards.101 Likewise, under the SDWA, only the D.C. Circuit can review national primary water regulations.102

Under these provisions, EPA effectively cannot practice any form of nonacquiescence. Venue-choice and intercircuit nonacquiescence require, by definition, the opportunity for review by multiple circuits; where only one circuit can review an agency action, both venue-choice and intercircuit non-acquiescence are inapplicable.103 Likewise, while EPA may theoretically engage in intracircuit nonacquiescence by refus-ing to conform its proceedings to an adverse D.C. Circuit decision, the practice would be unprecedented.104 Moreover, the benefits of practicing intracircuit nonacquiescence in this context are almost nonexistent. No intercircuit dialogue is advanced because no other circuit can consider the decision, and the D.C. Circuit is unlikely to reconsider its decision without sister circuit opinions to the contrary.105

B. Recent EPA Nonacquiescence Actions

Unlike the SSA and NLRB, EPA does not have a storied his-tory of asserting its right to nonacquiesce in federal court.106 In preparing to write Nonacquiescence by Administrative Agencies, Professors Estreicher & Revesz conducted a survey of major federal agencies regarding their nonacquiescence practices.107 EPA was one of only two agencies to indicate that it did not engage in any form of nonacquiescence.108 As Estreicher and Revesz explained:

[In our discussion with EPA General Counsel] we learned that with respect to both rulemaking and enforcement actions, EPA’s general policy is to eschew relitigation of an issue that has been squarely decided against it in any circuit.

101. 42 U.S.C. § 7601(b)(1)102. 42 U.S.C. § 300j-7(a)103. See supra Sections I.A. & I.C.104. See Estreicher & Revesz, supra note 2, at 716. In their agencywide survey of

nonacquiescence practices, Professors Estreicher and Revesz found that “where 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 the rulings of that court.” Id. Notably, even the SSA reported adhering to this 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.

105. Note that this does not preclude EPA from petitioning for en banc review or from the D.C. Circuit initiating its own en banc review. See Diller & Morawetz, supra note 19, at 805–06.

106. Cf. Estreicher & Revesz, supra note 2, at 717. Notably in the Agency’s final rule amending its Regional Consistency Regulations under the CAA, see Amend-ments to Regional Consistency Regulations, 81 Fed. Reg. 51102 (Aug. 3, 2016) (to be codified at 40 C.F.R. pt. 56), the Agency only identifies one other instance of EPA nonacquiescence before 2012. In Envtl. Def. v. Duke Energy Corp., 549 U.S. 561 (2007), the Supreme Court vacated a U.S. Court of Ap-peals for the Fourth Circuit decision under the CAA. Id. at 1437. However, in the two years between the Fourth Circuit’s ruling and the Supreme Court’s de-cision, the Agency apparently nonacquiesced to the circuit’s decision in other circuits. See Amendments to Regional Consistency Regulations, 80 Fed. Reg. 50250, 50257 (proposed Aug. 19, 2015) (to be codified at 40 C.F.R. pt. 56).

107. See Estreicher & Revesz, supra note 2, at 716.108. Id. at 717. The other agency to report that it did not engage in nonacquies-

cence was the Federal Communications Commission. Id.

Enforcement actions are brought in the district courts, how-ever, and EPA will on occasion seek to preserve its position by not appealing to an adverse district court decision. [The General Counsel] explained that, because of a special need to maintain uniformity in the environmental context, and a relatively responsive Congress, the agency has avoided reliti-gation as a tool of policy.109

While the Agency may have attempted avoiding nonacqui-escence in the past, recent actions indicate that the Agency has since adopted a different posture. In National Environ-mental Development Ass’n’s Clean Air Project v. EPA (NEDA-CAP I),110 the Agency argued before the D.C. Circuit that it could nonacquiesce to a Sixth Circuit decision regard-ing the definition of “major sources” under Title V of the CAA.111 When the D.C. Circuit ruled against EPA, holding that the Agency’s Regional Consistency Regulations112 pre-cluded nonacquiescence, the Agency responded by amend-ing the regulations specifically to accommodate intercircuit nonacquiescence.113 The Agency later successfully defended the amended regulations in a second case before the D.C. Circuit, National Environmental Development Ass’n’s Clean Air Project v. EPA (NEDACAP II).114 Similarly, in Center for Regulatory Reasonableness v. EPA,115 EPA argued that it could nonacquiesce to a decision of the Eighth Circuit regarding the definition of “secondary treatment” under the CWA.116 Although the court in Center for Regulatory Reasonableness 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

1. NEDACAP and Amendments to CAA Regional Consistency Regulations

The legal saga leading up to EPA’s decision to amend its Regional Consistency Regulations began with the Sixth Cir-cuit’s decision in Summit Petroleum Corp. v. EPA.119 In Sum-mit, the court struck down EPA regulations under Title V of the CAA, which declared that multiple pollutant emit-ting activities could be regulated as a single “major source” of pollution so long as the activities were “located on one

109. Id.110. 752 F.3d 999, 44 ELR 20123 (D.C. Cir. 2014).111. See id. at 1003.112. See Regional Consistency Regulations, 40 C.F.R. § 56.3(a) (2014).113. See Nat’l Envtl. Dev. Ass’n Clean Air Project v. EPA (“NEDACAP”), 752 F.3d

999, 1011, 44 ELR 20123 (D.C. Cir. 2014). See also Amendments to Regional Consistency Regulations, 81 Fed. Reg. 51102 (Aug. 3, 2016) (to be codified at 40 C.F.R. pt. 56).

114. See NEDACAP II, No. 16.1344 at 4–5, 48 ELR 20093 (D.C. Cir. 2018).115. 849 F.3d 453, 47 ELR 20031 (D.C. Cir. 2017).116. See Brief for Respondent at 37–38, Ctr. for Regulatory Reasonableness, 849 F.3d

453 (D.C. Cir. 2017) (No.14-1150). See also Iowa League of Cities v. EPA, 711 F.3d 844, 877, 43 ELR 20069 (8th Cir. 2013).

117. See 849 F.3d at 454.118. See Brief for Respondent at 37–38, Ctr. for Regulatory Reasonableness, 849 F.3d

453 (D.C. Cir. 2017) (No.14-1150); Center for Regulatory Reasonableness, 849 F.3d at 454.

119. 690 F.3d 733, 42 ELR 20167 (6th Cir. 2012).


or more contiguous or adjacent properties.”120 Two months after the Summit decision, the Director of EPA’s Office of Air Quality and Standards issued a memorandum (the “Sum-mit Directive”) addressing the impact of the Sixth Circuit’s determination.121 The Summit Directive stated that in areas under Sixth Circuit jurisdiction, EPA “may no longer con-sider interrelatedness in determining adjacency when mak-ing source determination decisions in its Title V or New Source Review (NSR) permitting decisions . . . .”122 In an unequivocal statement of intercircuit nonacquiescence, how-ever, the Agency determined that it would not “change its longstanding practice of considering interrelatedness in EPA permitting actions in other jurisdictions.”123

In 2013, the National Environmental Development Asso-ciation (“the Association”) challenged the Summit Directive in the D.C. Circuit on two grounds. First, the Association argued that Section 7601 of the CAA precludes any inter-circuit nonacquiescence under the statute. Section 7601 requires EPA to issue regulations that “assure fairness and uniformity in the criteria, procedures, and policies applied by the various regions in implementing and enforcing [the CAA].”124 Second, the Association argued that even if the language of Section 7601 did not preclude intercircuit non-acquiescence, the regulations (“Regional Consistency Regu-lations”) passed pursuant to Section 7601 nonetheless forbid the Agency from engaging in nonacquiescence because they required regional administrators to ensure that their actions “[a]re as consistent as reasonably possible with the activities of other Regional Offices . . . .”125

A D.C. Circuit panel vacated the Summit Directive on this latter argument.126 The court held that because EPA’s regulations mandated uniformity in enforcing the CAA, the Agency could not simply ignore unfavorable circuit court decisions and must apply the Summit holding both within and outside of the Sixth Circuit.127 Notably, the court did not address the Association’s first argument that the CAA itself precluded nonacquiescence.128 Furthermore, the court suggested that EPA might be able to comply with its own regulations simply by “revis[ing] its uniformity regulation to account for regional variances created by a judicial decision or circuit splits.”129

In August 2016, the Agency took the court’s advice and issued a final rule amending the Regional Consistency Regu-lations to accommodate intercircuit nonacquiescence.130 The

120. 40 C.F.R. § 71.2 (2016); see Summit, 690 F.3d at 744.121. Memorandum on Applicability of the Summit Decision to EPA Title V and

NSR Source Determinations, EPA (Dec. 21, 2012), https://www.epa.gov/sites/production/files/2015-07/documents/inter2012.pdf [https://perma.cc/V67T-26TL] [hereinafter Summit Directive].

122. Id. at 1.123. Id.124. 42 U.S.C. § 7601(a)(2)(A) (2012).125. Regional Consistency Regulations, 40 C.F.R. § 56.5(a)(2) (2014).126. NEDACAP I, 752 F.3d 999, 1011, 44 ELR 20123 (D.C. Cir. 2014).127. Id. at 1011 (“[A]n agency may not refuse to acquiesce if doing so violates

is own regulations. . . . EPA’s current regulations preclude EPA’s inter-circuit nonaquiescence [sic] in this instance . . . .”).

128. Id.129. Id. at 1010.130. Amendments to Regional Consistency Regulations, 81 Fed. Reg. 51102 (Aug.

3, 2016) (to be codified at 40 C.F.R. pt. 56).

new regulations have two primary components. First, the regulations establish a presumption that in the event of an adverse circuit decision, the regional offices will continue to apply the Agency’s national policy in jurisdictions outside the adverse circuit.131 Second, the new regulations provide that the regional offices should apply an adverse circuit deci-sion within that circuit’s jurisdiction, and may do so without seeking a concurrence from EPA headquarters.132

In support of the new policy, EPA turned to the traditional rationales in favor of intercircuit nonacquiescence, includ-ing preserving the federal court structure and encouraging the development of federal law.133 The Agency also stressed that intercircuit nonacquiescence promotes predictability for regulated industries.134 Instead of guessing how the Agency will respond, EPA argued that regulated entities could pre-sume that “[it] will continue to apply the national policy nationwide, except for those geographic areas impacted by the adverse decision.”135

The Agency rejected several commenters’ suggestion that the Agency “add regulatory text defining the parameters under which the Agency would be required to re-evaluate its national policy following adverse court decisions.”136 After consideration, the Agency determined that a case-by-case approach “is best because it allows EPA to consider the individual merits of each decision . . . rather than apply a rigid formula.”137 Likewise, the Agency rejected sugges-tions that it add text requiring the Agency’s headquarters to concur in a regional office’s decision to deviate from national policy.138 According to the Agency, requiring a concurrence may undercut one key purpose of the regula-tions “to establish the presumption that national policy remains national policy . . . .”139

In response to the amended Regional Consistency Regu-lations, the Association launched a second challenge in the D.C. Circuit (NEDACAP II), arguing again that Section 7601 of the CAA precludes intercircuit nonacquiescence under the statute.140 A circuit panel denied the petition for review of the regulations, characterizing the Association’s position as “difficult to comprehend . . . .”141 The court ques-tioned how the Association would have preferred the Agency to respond after the Summit decision:

131. Id. at 51109, 51113.132. Id. at 51105, 51114.133. Id. at 51103–04. See supra Section I.A., for a complete discussion of the argu-

ments for and against intercircuit nonacquiescence.134. Amendments to Regional Consistency Regulations, 81 Fed. Reg. at 51104.135. See id. at 51108–09:

If the revisions to the Regional Consistency regulations had already been in place at the time of the Summit decision, [the Summit Di-rective] would not have been necessary because EPA Regions, states, other potentially affected entities . . . would have known that this type of permit-specific, local and regional decision would only apply in the areas under the jurisdiction of the Sixth Circuit . . . .

136. Id. at 51111.137. Id.138. Id.139. Id.140. NEDACAP II, No. 16.1344 at 4, 48 ELR 20093 (D.C. Cir. 2018).141. Id. at 4–5.


Petitioners contend that the agency cannot follow the approach announced in the Summit Directive. Does that mean that EPA must apply the Sixth Circuit decision in all regions? The statute does not require this. And if the Seventh Circuit subsequently issues a judgment that is at odds with the Sixth Circuit decision, would EPA be required to change its position again? Petitioners offer no viable answers.142

While the court did not explicitly lend support to the prac-tice of intercircuit nonacquiesence, it found EPA’s regulations to be a reasonable response to the “potential for intercircuit inconsistency” created by the CAA.143 The court noted that if EPA were required to change its policy each time a circuit court issued an adverse decision, “the first court of appeals to address an issue would determine EPA’s policy nationwide.”144 The court also acknowledged that intercircuit conflicts were not “inherently bad” and that intercircuit nonacquiesence could help foster intercircuit dialogue.145 Finally, the court recognized that the downside of the Regional Consistency Regulations, “[p]etitioners’ ostensible parade of horribles—a potentially national thicket of inconsistent decisions—is overblown, to say the least . . .” because inconsistent decisions could be resolved by either the Supreme Court or a change in the Agency’s rules or policies.146

After the legal saga leading to NEDACAP II, the Regional Consistency Regulations represent the Agency’s most liti-gated and most authoritative statement in support of non-acquiescence. The regulations provide a comprehensive approach to nonacquiescence under one of the Agency’s most important statutes, and as discussed in Part III,147 may also serve as a basic model for agency nonacquiescence under other statutes. Before assessing this prospect however, it is important to consider the Agency’s other recent major non-acquiescence action.

2. Nonacquiescence Following Iowa League of Cities

Around the same time that EPA issued the Summit Direc-tive asserting a right to nonacquiesce under the CAA, EPA also asserted a right to nonacquiesce under another major environmental statute, the CWA. In Iowa League of Cities v. EPA,148 the Eighth Circuit vacated an EPA policy (the “blending rule”) which interpreted the statutory term “sec-ondary treatment” of wastewater to include only biologi-cal treatment rather than treatment through physical and chemical processes.149 In November 2013, the United States Conference of Mayors, the National League of Cities, the National Association of Counties, and other entities wrote a letter to EPA seeking clarification of whether the Eighth Cir-

142. Id. at 4.143. Id. at 5, 14.144. Id. at 18.145. Id. at 14.146. Id. at 18.147. See supra Part III. 148. 711 F.3d 844, 43 ELR 20069 (8th Cir. 2013).149. See id. at 876–78.

cuit’s decision would be implemented nationally.150 In two letters from April and June 2014, EPA replied that the deci-sion in Iowa League of Cities only constituted binding prec-edent in the Eighth Circuit.151 In August 2014, the Center for Regulatory Reasonableness (“Center”) filed a petition for review with the D.C. Circuit, stating that through the April and June letters, EPA had impermissibly reissued the vacated blending rule outside the Eighth Circuit.152

The Center made three primary arguments in favor of national application of the Eighth Circuit’s decision in Iowa League of Cities. First, the Center argued that intercircuit nonacquiescence, as practiced by EPA through the April and June letters, contravenes the CWA’s implicit objective of establishing nationally applicable standards.153 Second, the Center argued that allowing for intercircuit nonacquies-cence would create “regulatory havoc” by leading to different requirements for regulated industry in different circuits, and burdening individual EPA regional offices with the enforce-ment of multiple circuit standards.154

Finally, the Center argued that the judicial review pro-vision of the CWA precludes EPA nonacquiescence.155 The relevant judicial review provision of the CWA provides that:

Review of the Administrator’s action . . . in approving or pro-mulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title . . . may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts business which is directly affected by such action upon application by such person.156

When multiple parties file challenges under this section in more than one circuit, those actions are subject to 28 U.S.C. § 2112(a) (2012), which consolidates the petitions into one circuit by lottery and then allows only that circuit to adju-dicate the petitions.157 Both the Center and EPA agreed that the lottery-winning circuit’s decision has binding effect on all

150. U.S. EPA, Iowa League of Cities v EPA Desk Statement, R. App. 4, https://www.supremecourt.gov/DocketPDF/17/17-334/26628/20180103134821282_CRRs%20Reply%20Brief%20Appendices%201-7%20-%20Filed%201-3-18.pdf.

151. Petitioner’s Appendix at 1–2, Ctr. for Regulatory Reasonableness v. EPA, 849 F.3d 453, 47 ELR 20031 (D.C. Cir. 2017) (No. 17-334).

152. Petition for Review at 2, Ctr. for Regulatory Reasonableness v. EPA, 849 F.3d 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-ply shared “certain incomplete and interlocutory views regarding Iowa League’s 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 (D.C. Cir. 2017) (No. 14-1150).

154. Id. at 52–53.155. Id. at 46–50.156. 33 U.S.C. § 1369(b)(1)(E) (2012).157. See Brief for Petitioner at 47–48, Ctr. for Regulatory Reasonableness, 849 F.3d

453 (D.C. Cir. 2017) (No.14-1150); Brief for Respondent at 40, Ctr. for Regu-latory Reasonableness, 849 F.3d 453 (D.C. Cir. 2017) (No.14-1150) (providing the helpful example:“[A] petition for review originally filed in the [U.S. Court of Appeals for the] Tenth Circuit but subject to 28 U.S.C. § 2112(a) may not be adjudicated there if a different circuit won the lottery.”); see also supra note 67 (discussing the lottery process in the context of NLRB orders).


other circuits.158 However, the Center argued that although there was only one petition for review in Iowa League of Cities—rendering the consolidation provision of 28 U.S.C. § 2112(a) inapplicable—the Eighth Circuit’s decision should still have binding national effect.159

Unfortunately, the court’s decision in the case neither addressed nor resolved the nonacquiescence question. In a succinct four-page opinion, the circuit panel dismissed the petition for review for lack of jurisdiction.160 The April and June letters did not constitute a “promulgation” of an efflu-ent limitation needed to grant the court jurisdiction under 33 U.S.C. § 1369(b)(e).161 Rather, they “merely articulat[ed] how EPA will interpret the Eighth Circuit’s decision.”162 In effect, the question of whether the CWA precludes nonacqui-escence is still unsettled and open to challenge.

III. Proposed EPA Intercircuit Nonacquiescence Policies

Given EPA’s recent willingness to engage in nonacquiescence, the Agency should adopt clear intercircuit nonacquiescence policies under all of its statutes to avoid future litigation and confusion over its nonacquiescence authority. Such policies should be modeled on both EPA’s Regional Consistency Reg-ulations and the Social Security Administration’s time-tested nonacquiescence policy163 to minimize regulatory uncer-tainty, ensure uniform application of the law, and promote fairness for regulated industries.

A. Best Among Rivals: Intercircuit Nonacquiescence

When seeking to accommodate nonacquiescence into its regulatory schemes, EPA should adopt policies favoring intercircuit nonacquiescence.164 The benefits of intercircuit nonacquiescence are well-established. As discussed in Part I, intercircuit nonacquiescence permits each circuit to establish its own “law of the circuit” and thereby encourages intercir-cuit dialogue regarding difficult questions of law.165 Circuit splits produced by intercircuit dialogue help the Supreme Court make better case selections.166 Additionally, intercir-cuit dialogue produces better court opinions by allowing reviewing courts to draw upon the arguments made by past

158. See Brief for Respondent at 40, Ctr. for Regulatory Reasonableness, 849 F.3d 453 (D.C. Cir. 2017) (No.14-1150); Brief for Petitioner at 1, Ctr. for Regulatory Reasonableness, 849 F.3d 453 (D.C. Cir. 2017) (No.14-1150).

159. See Brief for Petitioner at 48–49, Ctr. for Regulatory Reasonableness, 849 F.3d 453 (D.C. Cir. 2017) (No.14-1150).

160. Ctr. for Regulatory Reasonableness v. EPA, 849 F.3d 453, 454, 47 ELR 20031 (D.C. Cir. 2017).

161. Id.162. Id.163. 20 C.F.R. § 404.985 (2016) (SSA nonacquiescence policy for Social Security

Disability Benefits); 20 C.F.R. § 416.1485 (2016)164. Since commenters have generally equated venue-choice nonacquiescence with

intercircuit nonacquiescence, see supra notes 69–73 and accompanying text, this section generally applies to both types of nonacquiescence. However, for the sake of brevity, this section only uses the term “intercircuit nonacquies-cence.” For a full discussion of how agency policies may incorporate venue-choice nonacquiescence, see infra Section III.B.2.

165. See supra Section I.A.166. See supra Section I.A.

circuits.167 Finally, if EPA were to always acquiesce with the first adverse decision on a particular question, other circuits would have few opportunities to review the Agency’s origi-nal policy, effectively stalling the development of environ-mental law.

As EPA acknowledged in the Regional Consistency Regulations,168 intercircuit nonacquiescence comes with a significant drawback: inconsistency in the application of fed-eral environment law across different circuit jurisdictions.169 When EPA applies different legal interpretations to different regions, some industry players gain a competitive advantage over others based simply on location.170 However, the prob-lem of regulatory inconsistency is not unique to intercircuit nonacquiescence, but rather a consequence of the federal court structure dividing the country into eleven regional cir-cuit jurisdictions.171 Under any alternative—intracircuit non-acquiescence or nationwide acquiescence—EPA sacrifices uniform application of the law in some respect. For instance, if EPA were to practice widespread intracircuit nonacquies-cence, the Agency would achieve horizontal uniformity (con-sistent application of the law across circuits) at the expense of vertical uniformity (consistent application of the law across agency proceedings and the federal judiciary).172 Parties need only find their way to federal court to take advantage of an adverse circuit decision and a different application of envi-ronmental law.173

Likewise, nationwide acquiescence also fails to guaran-tee uniformity among the circuits in every situation. For instance, if two circuits issued conflicting rulings on the

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 S. Ct. 2175, 44 ELR 20125 (2014) (granting certiorari to resolve whether CERCLA preempts state statutes of repose for tort suits related to hazard-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 parent corporations may be held liable under CERCLA”); Meghrig v. KFC Western, Inc., 516 U.S. 479, 26 ELR 20820 (1996) (granting certiorari to resolve a circuit split regarding remedies under RCRA). See also supra note 41.

168. Amendments to Regional Consistency Regulations, 81 Fed. Reg. 51102, 51109 (Aug. 3, 2016) (to be codified at 40 C.F.R. pt. 56).

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; Estreicher & Revesz, supra note 2, at 717 (summarizing a discussion with EPA General Counsel Francis Blake, in which Mr. Blake acknowledged that a “spe-cial need to maintain uniformity in the environmental context” discouraged nonacquiescence at the Agency); cf. Estreicher & Revesz, supra note 2, at 748 (“[A] central goal of federal regulation is to prevent regions from competing for industry by offering a more favorable economic climate at the expense of other societal goals. . . . As long as the conflict among the circuits persists, there will be undesirable regional competition.”). Courts have also recognized that one of the primary purposes behind federal environmental laws was to establish nationally uniform standards. See, e.g., E.I. Dupont de Nemours & Co. v. EPA, 430 U.S. 112, 129, 7 ELR 20191 (1977) (recognizing the establishment of uniform standards as a primary congressional purpose behind amendments to the Federal Water Pollution Control Act).

170. Amendments to Regional Consistency Regulations, 81 Fed. Reg. 51102, 51109 (Aug. 3, 2016) (to be codified at 40 C.F.R. pt. 56).

171. See Amendments to Regional Consistency Regulations, 81 Fed. Reg. at 51108. (“Some difference in governing rules is inherent in our federal judiciary system where district and circuit courts are limited to a definitive jurisdiction. The federal judicial system was designed to allow numerous, and sometimes con-flicting, decisions . . .”); cf. Estreicher & Revesz, supra note 2, at 741 n. 302.

172. See supra Section II.A.; supra note 57.173. See supra Section II. B.


same legal question, EPA would be unable to apply both decisions nationwide.174 While EPA could apply the con-flicting rulings within the respective jurisdictions of those circuits, the Agency could only choose one ruling to apply in neutral circuit jurisdictions. The result, therefore, would be like the result achieved through intercircuit nonacquies-cence: national application of one policy except for an outly-ing, adverse circuit.

While intercircuit nonacquiescence is not a perfect solu-tion for how EPA should handle adverse circuit decisions, it is the best available solution for balancing the inherent inequities of the federal court structure with the need for intercircuit dialogue on important questions of environmen-tal law. The following section provides a blueprint of how the Agency might accommodate intercircuit nonacquiescence in a variety of statutory schemes, and proposes measures that the Agency could adopt to mitigate the harmful impacts of the practice.

B. Proposed Features of EPA Nonacquiescence Policies

EPA should establish nonacquiescence policies that promote regulatory consistency, uniformity, and fairness in Agency responses to adverse circuit decisions. In pursuit of these goals, the Agency’s nonacquiescence policies should include three key features. First, any new nonacquiescence policy should establish default Agency responses to adverse circuit decisions. Under many statutes, this could be expressed as a presumption in favor of intercircuit nonacquiescence much like that found in the Regional Consistency Regulations.175 Second, new nonacquiescence policies should require EPA headquarters to issue concurrences to acquiescence determi-nations made by regional offices. Finally, EPA nonacquies-cence policies should provide the Agency the flexibility to deviate from intercircuit nonacquiescence under certain pro-scribed circumstances.

1. Presumption of Intercircuit Nonacquiescence

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 Regulations.176 Under those regulations, the Agency applies the adverse circuit’s holding within that circuit’s jurisdiction, but continues to apply the Agency’s original position in other jurisdictions.177 In other words, the Regional Consistency Regulations require the Agency to apply a presumption of intercircuit nonacquiescence.178 As explained in the final rule

174. See Amendments to Regional Consistency Regulations, 81 Fed. Reg. at 51104.175. See id. at 51103.176. See id. at 51102.177. See id. at 51102, 51109.178. While EPA never uses the term “presumption of inter-circuit nonacquies-

cence,” the policy set out in the Regional Consistency Regulations clearly re-

amending the Regional Consistency Regulations, establish-ing a presumption of intercircuit nonacquiescence generates greater consistency and predictability in Agency nonacquies-cence actions by placing regulated industry on notice of how the Agency will apply adverse circuit decisions.179

Admittedly, this approach does not always produce per-fect results. Under statutes with broad venue provisions, the Agency may not be able to predict with absolute certainty which court will review its actions and may inadvertently face review in a circuit with adverse precedent. Consider the prior example of venue-choice nonacquiescence in the context of RCRA.180 Under RCRA, review of permits for hazardous waste storage facilities may be made by “any inter-ested person” in any circuit where that person “resides or transacts business.”181 In practice, this means that a particu-lar permit could be reviewed in an adverse and non-adverse circuit. While the Agency may intend to practice intercircuit nonacquiescence, to a reviewing adverse circuit, the Agency will appear to be engaging in intracircuit nonacquiescence.

Despite this drawback, adopting a presumption of inter-circuit nonacquiescence is still preferable for statutes with broad venue provisions. First, venue-choice nonacquiescence constitutes a challenge for the Agency regardless of whether the Agency adopts any default nonacquiescence policy. Even without a default response in place, the Agency must still decide how to apply adverse holdings. Establishing a pre-sumption of intercircuit nonacquiescence simply reduces uncertainty about the Agency’s response to adverse holdings; it does not create the problems associated with venue-choice nonacquiescence. Second, if EPA faces review in a circuit with adverse precedent, the Agency can avoid the appear-ance of intracircuit nonacquiescence simply by declining to re-litigate the issue.182 While the Agency may lose the par-ticular case, it may be within the Agency’s best interest to avoid flouting circuit court authority.

2. Published Headquarters Concurrences

In addition to establishing a presumption of intercircuit nonacquiescence, any new agency nonacquiescence policy should require regional offices to seek concurrences from EPA headquarters before applying adverse circuit precedent to their proceedings. Ideally, the agency would issue require-ments for these concurrences similar to those under the SSA’s current nonacquiescence policy.183

In general, when the SSA determines that a circuit court holding conflicts with the agency’s interpretation of the

quires the regional offices to engage in intercircuit nonacquiescence by cabin-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 92–94.181. 42 U.S.C. §§ 6925, 6976(b) (2012).182. See generally Estreicher & Revesz, supra note 2, at 717 (noting that the Agency

has avoided nonacquiescence in the past by simply declining to relitigate indi-vidual cases).

183. See 20 C.F.R. § 404.985 (2016) (SSA nonacquiescence policy for Social Secu-rity Disability Benefits); 20 C.F.R. § 416.1485 (2016) (SSA nonacquiescence policy for Social Security insurance). Because the SSA’s nonacquiescence policy under both programs is identical, only the SSA’s policy for Social Security Dis-ability Benefits will be cited hereafter.


Social Security Act or agency regulation, the agency will acquiesce to the holding within that circuit at all administra-tive levels.184 Before applying the circuit’s holding, however, the agency must first publish an Acquiescence Ruling.185 The Acquiescence Ruling “will describe the administrative case and the court decision, identify the issue(s) involved, and explain how we will apply the holding, including, as neces-sary, how the holding relates to other decisions within the applicable circuit.”186 Moreover, Acquiescence Rulings must be published in the Federal Register within 120 days of the adverse circuit decision.187 Likewise, if the agency wants to rescind an Acquiescence Ruling, it must publish its decision in the Federal Register.188

EPA’s new nonacquiescence policies should adopt substan-tially similar requirements for headquarters concurrences. Like the SSA’s nonacquiescence policy, which authorizes local agency officials to apply adverse circuit holdings only after the agency has issued an Acquiescence Ruling,189 EPA’s nonacquiescence policies should require regional offices to receive a concurrence from the appropriate headquarters office before applying adverse circuit precedent.190 Notably, EPA has already informally adopted this structure for past nonacquiescence decisions in both the Summit and Center for Regulatory Reasonableness cases.191 However, the Agency broke with this practice in the Regional Consistency Regu-lations by allowing regional offices to apply adverse circuit precedent without receiving permission from headquarters. According to the Agency, headquarters concurrences would only serve as reiterations of the Agency’s default position of intercircuit nonacquiescence.192

Contrary to this perspective, however, concurrences from headquarters modeled on the SSA’s Acquiescence Rulings and published in the Federal Register would not function as redundancies, but could produce more carefully considered nonacquiescence decisions and promote regulatory unifor-mity. Three rationales support this approach. First, headquar-ters offices are typically better positioned than regional offices to interpret adverse circuit decisions and tailor the applica-tion of adverse decisions to national policy goals. Generally, headquarters offices set national Agency policy, and regional offices implement and enforce that policy.193 Centralizing

184. 20 C.F.R. § 404.985(a).185. 20 C.F.R. § 404.985(b).186. Id.187. Id.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

division of labor between regional and headquarters offices.191. See Amendments to Regional Consistency Regulations, 81 Fed. Reg. 51102,

51110 (Aug. 3, 2016). After the Sixth Circuit’s holding in Summit, the Agen-cy’s nonacquiescence decision was announced through the Summit Directive signed by the Director of the Office of Air Quality Planning and Standards. See Summit Directive, supra note 121 and accompanying text. Likewise, the two letters challenged in Center for Regulatory Reasonableness were both signed by the Acting Assistant Administrator for the Office of Water. See Petitioner’s Ap-pendix at 1–2, Ctr. for Regulatory Reasonableness v. EPA, 849 F.3d 453 (D.C. Cir. 2017) (No. 17-334).

192. Amendments to Regional Consistency Regulations, 81 Fed. Reg. at 51111.193. See 40 C.F.R. § 1.5 (2016). For more information on the division of labor

between offices at EPA headquarters, see 40 C.F.R. §§ 1.21–1.49 (2016) and footnote 79: See Robert Esworthy, Cong. Research Serv., RL34384, Fed-

nonacquiescence determinations at EPA headquarters more easily enables the Agency to account for its national policy objectives, the political climate in Washington, and circuit decisions outside of the impacted regions when determining how the Agency will apply adverse holdings.

Second, published concurrences from headquarters would foster greater uniformity in administration of the law by establishing one standard for the application of adverse cir-cuit precedent. Alternatively, under the nonacquiescence approach adopted by the Regional Consistency Regulations, each regional office would develop its own standard for how to apply an adverse circuit holding.194 In circuit jurisdictions such as the Eighth Circuit, which includes states overseen by four different EPA regional offices, this approach invites regulatory uncertainty and inconsistent application of the law.195 Each regional office may have a slightly different understanding of an adverse holding in the Eighth Circuit. Consequently, industries in Minnesota (Region Five) may be subject to different requirements from industries in Iowa (Region Seven), even though Eighth Circuit precedent gov-erns both states. A centrally published concurrence would eliminate this risk by setting out a national interpretation of the Eighth Circuit’s holding and by specifying exactly how the holding should be applied. Each regional office would then be bound by the standard set by EPA headquarters, assuring uniformity across the Eighth Circuit’s jurisdiction.

Finally, the publication of concurrences from headquar-ters in the Federal Register would encourage a fair adminis-tration of the law by placing all regulated parties on notice of changes to Agency policy. Under the procedures adopted by the Agency in the Regional Consistency Regulations, regional offices can immediately begin applying adverse cir-cuit holdings without any public declaration indicating a shift in Agency policy.196 This system risks springing unex-pected regulatory burdens on less sophisticated regulated entities that do not meticulously track federal circuit deci-sions. Meanwhile, more sophisticated entities that do follow circuit rulings will be able to take advantage of favorable shifts in Agency policy sooner than their less sophisticated rivals. While publication of a headquarters concurrence in the Federal Register does not guarantee that all impacted par-ties will be put on notice of the shift in Agency policy, it at least makes a public declaration of Agency policy accessible to all interested parties.

eral Pollution Control Laws: How Are They Enforced? 8–9 (2014); 40 C.F.R. § 1.61 (2016).

194. Amendments to Regional Consistency Regulations, 81 Fed. Reg. at 51111.195. See About EPA, U.S. EPA, https://www.epa.gov/aboutepa [https://perma.

cc/5X4C-D2ZW]; Geographical Boundaries of United States Courts of Appeals and United States District Courts, http://www.uscourts.gov/sites/default/files/u.s._federal_courts_circuit_map_1.pdf (last visited Apr. 9, 2017).

196. Cf. Amendments to Regional Consistency Regulations, 81 Fed. Reg. at 51110.


3. Mechanisms for Deviating From Intercircuit Nonacquiescence

Notwithstanding the presumption of intercircuit outlined in the previous sections, EPA’s nonacquiescence policies should provide the Agency limited flexibility to deviate from inter-circuit nonacquiescence in two circumstances: (1) when a regional office requests a concurrence and (2) in a later rescis-sion of a headquarters concurrence.

First, at the concurrence stage, an EPA headquarters office may have political or policy-based reasons for abandoning the presumption of intercircuit nonacquiescence after an adverse circuit decision. For instance, if multiple other cir-cuits have already ruled against the Agency on an issue, a headquarters office may decide to abandon its position once another circuit rules against the Agency. In this scenario, the headquarters office could announce its decision to engage in nationwide acquiescence through a concurrence by following the requirements provided above.

Second, the Agency should be able to rescind a prior head-quarters concurrence under proscribed circumstances. Here again, the SSA’s current nonacquiescence policy may serve as a helpful model. Under SSA regulations, the Agency may only rescind an Acquiescence Ruling under four circum-stances.197 First, the Agency may rescind an Acquiescence Ruling when the Supreme Court overrules or limits a cir-cuit decision that was the basis for the Ruling.198 Second, the Agency may rescind a Ruling when a circuit court over-rules or limits its past precedent that formed the basis for the Ruling.199 Third, a Ruling may be rescinded when Congress enacts a law obviating the need for the Ruling.200 Finally, a Ruling may be rescinded if the SSA issues new regulations that make the Ruling obsolete.201

EPA nonacquiescence policies should adopt similar con-straints on the Agency’s discretion to rescind headquarters concurrences.202 Cabining the Agency’s discretion to over-turn past nonacquiescence decisions promotes both con-sistency and predictability in Agency nonacquiescence decisions by assuring regulated industries that the Agency will not abruptly switch positions. Consider, for instance, a wastewater treatment plant in the Eighth Circuit seeking

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 policies should also permit the Agency to rescind a headquarters concurrence when a D.C. Circuit ruling conflicts with the concurrence.

to construct secondary treatment facilities after Iowa League of Cities.203 If EPA can rescind nonacquiescence decisions at will, the plant is less likely to rely on the Agency’s nonacqui-escence decisions in apprehension of a sudden shift in the Agency’s regulatory stance. On the other hand, if the Agency can only rescind its decision under proscribed circumstances, the treatment plant can more easily rely on the Agency’s non-acquiescence decision because the Agency cannot abandon its former policy without considerable effort.

Conclusion

Both the Regional Consistency Regulations and the recent litigation in Center for Regulatory Reasonableness indicate that nonacquiescence will play a significant role in future EPA policy. Although opinions about the direction of EPA almost always break along partisan lines, nonacquiescence is a uniquely non-partisan issue with non-partisan solutions. Both sides of the aisle have a common interest in preserv-ing the federal judicial structure, ensuring the development of environmental law in the federal courts, and promoting regulatory consistency, predictability, and fairness for regu-lated industries.

The proposal outlined above recommends an approach to EPA nonacquiescence that balances both the interests of the regulated community, and the interests of the Agency and federal courts. It is my hope that this Article can serve as a starting point for all policymakers, liberal and conservative, in developing EPA’s future nonacquiescence policies. Hope-fully, this Article encourages others to research administra-tive nonacquiescence. Recent nonacquiescence scholarship is notably lacking, and more scholarship is needed on how both EPA and other agencies might effectively pursue nonacquies-cence.204 The issue of nonacquiescence is neither settled nor fading away, and more work is needed by academics, prac-titioners, and policymakers, to update Agency policies and bring our understanding into the 21st century.

203. 711 F.3d 844, 43 ELR 20069 (8th Cir. 2013). See supra Section II.B.2.204. See supra notes 15–20 and accompanying text discussing lack of recent nonac-

quiescence scholarship.


In an era of fake news and personal truths, history is in the eye of the beholder. One needs only declare it so, and so it is. Context no longer matters. People and perceptions

of the past are discounted, even condemned, in service to modern sensibilities and ambitions. Present-day values and objectives require the retelling of history—confirmed not by careful research and respect for the words and deeds of those whose history we recount, but by repetition of our truths about the past. The ends justify the means.

There are thus two histories of the public trust doctrine. One founded in Anglo-American custom and case law. Another founded in the imaginations of now two generations of advocates in search of a fail-safe guardian of the environ-ment. While I am sympathetic to the cause of environmen-tal protection, I am even more sympathetic to the cause of human freedom. Because the latter requires an unwavering commitment to the rule of law, and because the rule of law requires respect for legal precedent, I believe it is essential that we get the history right.

Many years ago, my colleague, Mike Blumm, described me as the Darth Vader of the public trust doctrine. I would prefer to be thought of as the Luke Skywalker of the rule of law, though having written numerous articles on this theme that are generally referenced as “but see,” if not totally ignored, probably qualifies me to be called Don Quixote. But I continue to tilt at this windmill because I find in the work of those I criticize a deeply ingrained acceptance that legal argument is finally about precedent rather than policy. Why else would they routinely appeal to history in their argu-ments for judicial reinvention of the public trust doctrine?

For example, a Westlaw search on any given day may reveal upward of 500 articles that reference Justinian in the con-text of the public trust doctrine. Almost always, particular language from Justinian’s Institutes is quoted as an ancient source of the public trust doctrine.1 I confess I have not read all 500 articles, but by way of illustration, I will note only

1. See discussion infra.

some of the Justinian references made by participants in this conference.2 Prof. Nicholas Robinson: “The Roman ‘public trust doctrine’ derives from Justinian’s Institutes . . . .”3 Prof. Erin Ryan: “The public trust doctrine is among the oldest doctrines of the common law, with roots in the Justinian Code of ancient Rome, where it was called the jus publicum.”4 Prof. Mary Christina Wood: “The essential public rights that infuse the trust were expressed in Roman times in the Insti-tutes of Justinian . . . .”5 Prof. Bradford Mank: “The public trust doctrine has its roots in ancient Roman law and per-haps even earlier. The Institutes of Justinian, which codified Roman civil law, recognized that certain types of property were communal property for the benefit of the general pub-lic . . . .”6 Prof. Melissa Scanlan: “One part of the Corpus, the Institutes of Justinian, contained the origins of the public trust doctrine.”7 Prof. Alexandra Klass: “In Justinian’s com-pendium of Roman law, he declared as part of natural law that there were communal rights in the air, running water, the sea and the shores of the sea.”8 And finally, Professor Blumm, as a coauthor with Professor Wood: “First surfacing in Roman law through the Justinian Code, [the public trust] . . . became entrenched in American law in the 19th cen-tury through the process of statehood.”9 More recently, writ-

2. This is in reference to the 2018 J.B. & Maurice C. Shapiro Environmental Law Symposium, “The Public Trust Doctrine in the 21st Century” hosted at The George Washington University Law School on March 15, 2018.

3. Nicholas A. Robinson, IUCN as Catalyst for a Law of the Biosphere: Acting Globally and Locally, 35 Envtl. L. 249, 280 (2005).

4. 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, 567 (2015).

5. Mary Christina Wood & Charles W. Woodward, Atmospheric Trust Litigation and the Constitutional Right to a Healthy Climate System: Judicial Recognition at Last, 6 Wash. J. Envtl. L. & Pol’y 634, 649 (2016).

6. Bradford C. Mank, Standing and Future Generations: Does Massachusetts v. EPA Open Standing for Generations to Come?, 34 Colum. J. Envtl. L. 1, 83 (2009).

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).

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).

9. Michael C. Blumm & Mary Christina Wood, The Public Trust Doc-trine in Environmental and Natural Resources Law xxxv (2d ed. 2015).

The Public Trust Doctrine: A Brief (and True) History

James L. Huffman*

* James Huffman is a Professor of Law and Dean Emeritus of Lewis and Clark Law School.


ing with Aurora Paulsen Moses, Professor Blumm asserted that the public trust doctrine originated in Roman law as an antimonopoly notion: “As the Roman Emperor Justin-ian explained in a 6th century legal treatise, there are ‘things which are naturally everybody’s . . .’” including “‘air, flow-ing water, the sea, and the sea-shore.’ English law adopted this Roman law concept in the Magna Carta of 1215, which included a provision promising public uses of navigable and tidal waters for navigation, commerce, and fishing purposes while restricting private monopolies that would interfere with those uses.”10

References to Magna Carta, like Blumm’s in his antimo-nopoly account of the public trust doctrine, are only slightly less common than the aforementioned references to Justinian as part of the claimed historical provenance for an expansive interpretation of the public trust doctrine. As is often the case in the telling of history, the person telling the story has more often relied on the story told by others than on those whose story it is. In the case of scholarly accounts of the his-tory of the public trust doctrine, earlier articles by scholars Joe Sax and Charles Wilkinson are often cited as authority.11 Sax is rightly credited with resurrecting the doctrine from obscurity in a 1970 article in which he, unlike his many aco-lytes, recognized the limits of Roman law as precedent for the judicial intervention he was proposing.12 A year later, he wavered on that conclusion, writing that “[l]ong ago there developed in the law of the Roman Empire a legal theory known as the ‘doctrine of the public trust.’ It was founded upon the very sensible idea that certain common properties, such as rivers, the seashore, and the air, were held by the gov-ernment in trusteeship for the free and unimpeded use of the general public.”13 After nine more years, Sax reiterated his original position that “neither Roman Law nor the English experience with lands underlying tidal waters is the place to search for the core of the trust idea.”14 Wilkinson also dis-counted the significance of Roman law as precedent for the modern doctrine, rather contending, with classic Wilkinso-nian elegance, that

[t]he real headwaters of the public trust doctrine . . . arise in rivulets from all reaches of the basin that holds the societies of the world These things were articulated in different ways in different times by different peoples. In some cases, the

10. Michael C. Blumm & Aurora Paulsen Moses, The Public Trust as an Antimo-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-tive Judicial Intervention, 68 Mich. L. Rev. 471, 509–46 (1969); Charles F. Wilkinson, The Headwaters of the Public Trust: Some Thoughts on the Source and Scope of the Traditional Doctrine, 19 Envtl. L. 425 (1989).

12. [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 had an enforceable right to prevent infringement of those interests. Although the state apparently did protect public uses, no evidence is available that public rights could be legally asserted against a recalci-trant government.

Sax, supra note 11, at 475.13. Joseph L. Sax, Defending the Environment: A Strategy for Citizen Ac-

tion 163–64 (1971).14. Joseph L. Sax, Liberating the Public Trust Doctrine From Its Historical Shackles,

14 U.C. Davis L. Rev. 185, 186 (1980).

waters ran deep, in other places the waters ran shallow. But the idea of a high public value in water seems to have existed in most places in some fashion.15

Yet, both Sax and Wilkinson are frequently relied upon in the telling of the mythological history of the public trust doctrine.

In a nutshell, the generally accepted history is that from Justinian’s Institutes through Magna Carta, Bracton, Hale, Blackstone reporting on English law and Chancellor Kent acknowledging the reception of English and Roman law in America, the public has deeply rooted rights in access to and use of resources important to the public welfare. Arnold v. Mundy, Martin v. Waddell and Illinois Central Railroad v. Illinois are cited repeatedly as precedent for present day rec-ognition of a doctrine that will limit the authority of the state to alienate resources while imposing constraints on govern-mental and private use of those resources.16

As this account of history has gained credence through repetition, the ambitions for the public trust doctrine have grown. Not only is the doctrine said to constrain the pub-lic and private use of resources, but also that it empowers the courts to mandate actions by the executive and legisla-tive branches of government, even when those branches have chosen not to act. Emperor Justinian, King John, Henry de Bracton, Chief Justice Matthew Hale, William Blackstone, Chancellor James Kent, Chief Justice Roger Taney (author of Martin v. Waddell’s Lessee) and Justice Stephen Field (author of Illinois Central Railroad v. Illinois) would all be in disbelief.

But not so for our late 20th and early 21st century judi-ciary. In a landmark modern public trust case, the Supreme Court of California, quoting the Institutes of Justinian, wrote that “[f]rom this origin in Roman law, the English common law evolved the concept of the public trust.”17 The New Jersey Supreme Court cited Justinian in stating that “[t]he genesis of this principle [public trust] is found in Roman jurispru-dence. . . .”18 The Montana Supreme Court has declared that “[t]he public trust doctrine is of ancient origin. Its roots trace to Roman civil law . . . .”19 The Rhode Island Supreme Court credited the Greek philosopher Gaius, but also Justinian for passing the doctrine on four centuries later.20 The Michigan Supreme Court concluded that “[t]his obligation [the public trust doctrine] traces back to the Roman Emperor Justin-ian . . . .”21 The Vermont Supreme Court found that “[t]he public trust doctrine is an ancient one, having its roots in the Jus-tinian Institutes of Roman law.”22 The Washington Supreme Court concluded that “[t]he principle that the public has an overriding interest in navigable waterways and lands under them is at least as old as the Code of Justinian, promulgated in

15. Wilkinson, supra note 11, at 431.16. James L. Huffman, Speaking of Inconvenient Truths—A History of the Public

Trust Doctrine, 18 Duke Envtl. L. & Pol’y F. 1, 1 (2007).17. Nat’l Audubon Soc’y v. Superior Court, 658 P.2d 709, 718, 13 ELR 20272

(Cal. 1983).18. Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355, 360 (N.J. 1984).19. PPL Mont., LLC v. Montana, 565 U.S. 576, 603 (2012).20. Champlin’s Realty Assocs., L.P. v. Tillson, 823 A.2d 1162, 1166 (R.I. 2003).21. Glass v. Goeckel, 703 N.W.2d 58, 63–64 (Mich. 2005).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 Supreme Court wrote that “[t]he public trust doctrine is said to be traceable to the work of Emperor Justinian.”24 And a very confident United States District Court in Oregon recently concluded that “[a]pplication of the public trust doctrine to natural resources predates the United States of America. Its roots are in the Institutes of Justinian . . . .”25

Embracing the myth of Justinian, Magna Carta, and more discussed below as today’s truth does serve our purposes bet-ter than the truth of the past. But how does one reconcile such mythmaking with a lawyer’s and citizen’s commitment to the rule of law? The rule of law requires adherence to the law as it is, not as we wish it were. Of course, we can change the law in accordance with legal process, and the common law has evolved over time, but we cannot change the law by rewriting history. That even those who would find a vast sea of public rights in the public trust doctrine feel themselves constrained by the rule of law is confirmed by their need to rewrite the history of the doctrine. Why else the routine genuflection to Justinian?

My assignment for this article is to explain the history of the public trust doctrine. But given the pervasive acceptance of the foregoing account, my challenge is as much to correct the record as it is to recount the actual history of the doc-trine. Because I have examined both the myth and the his-tory of the public trust doctrine at length elsewhere,26 I will offer only a truncated account prefaced by a brief explanation of two different claims made in the name of the doctrine.

One claim is that there are certain resources that by their nature require public ownership. When legal title to these resources is held by the state (in the generic sense) the claim is that they cannot be alienated nor used by the state in ways not consistent with the claimed public rights. When title to these resources is in private hands, the claim is either that their acquisition was contrary to law or that their private use is restricted by superior public rights. The other claim is that public trust resources, whether in public or private owner-ship, are, by public right, available for particular public uses. In the history that follows, I will demonstrate that neither Roman nor English law support the first claim. I will also demonstrate that although the second claim finds support in both Roman and English law, it supports only clearly defined and limited uses—namely navigation and fishing of specific resources of navigable waters and their associated submerged lands.

I. Roman Law

One repeatedly quoted phrase from Justinian’s Institutes serves as the key evidence of a Roman public trust doctrine: “[t]hings common to mankind by the law of nature, are the air, running water, the sea, and, consequently, the shores of the sea; no man therefore is prohibited from approaching any

23. Caminiti v. Boyle, 732 P.2d 989, 994 (Wash. 1987).24. State v. Sorensen, 436 N.W.2d 358, 361 (Iowa 1989).25. Juliana v. United States, 217 F. Supp. 3d 1224, 1253, 46 ELR 20072 (D. Or.

2016).26. Huffman, supra note 16, at 14.

part of the seashore . . . .”27 As the ellipses indicate, there is more to the sentence, though I personally have never seen it quoted by those claiming the authority of ancient law. What follows immediately after “seashore” is “whilst he abstains from damaging farms, monuments, [and buildings], which are not in common as the sea is.” So, members of the Roman public had a right to approach the seashore, but only so long as they did not interfere with private property on that sea-shore. And how, we might ask, did portions of the public seashore become private property? Either by private appropri-ation or alienation by public authorities. Both were allowed under Roman law.

Description of “the air, running water, [and] the sea” as “things common to mankind” reflected two realities of 3d century Rome: these things were generally abundant relative to demand and were, in their physical nature (“by the law of nature”), difficult to possess, as compared to land. They were res nullius, meaning things not owned, or res communes, which under Roman law meant essentially the same thing.28 Thus, they were things that could be appropriated for private use,29 or claimed by governments that could, in turn, grant them to private users. Although Roman philosophers and even the Emperor Justinian might have aspired to the idea of a public right of access to and passage over the seas, the real-ity of life in the Roman Empire was that “all of the marine and coastal area resources that it was possible for the technol-ogy of the Romans to exploit were either in private owner-ship or were leased to monopolies . . . .”30 In other words, the fact of free public access to the sea (and air and running water) reflected not a recognized public right under Roman law, but rather a failure on the part of those who would exer-cise their right to appropriate unowned resources (res nullius or res communes) to develop means to effectively enforce any such claims.

Roman law precluded neither the private appropria-tion of running waters, the sea, or the seashore, nor state alienation of those resources to private parties. This does not mean that the public had no recourse when their use of those resources for navigation and fishing was obstructed by the state or private owners—at least in theory. Roman citizens could seek injunctive relief against obstructions to

27. Justinian, The Institutes of Justinian 67 (Thomas Cooper ed. & trans., 1841).

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-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. MacGrady, The Navigability Concept in the Civil and Common Law: Historical Development, Current Importance, and Some Doctrines That Don’t Hold Water, 3 Fla. St. U.L. Rev. 511, 533 (1975).

29. “If I drive piles into the sea . . . and if I build an island in the sea, it becomes 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 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 makes it his.” MacGrady, supra note 28, at 533 (quoting E. Ware, Roman Water Law (1905) (translating the Digest, a 50-volume codification of legal writings by Roman jurists)).

30. Patrick Deveney, Title, Jus Publicum, and the Public Trust: An Historical Analy-sis, 1 Sea Grant L.J. 13, 33 (1976).


navigation, docking, and shoreline footpaths; blocking or diversion of waters whether or not navigation was affected; and interferences with watering cattle at the shore and could seek restitution for injuries suffered from the building of a pier or breakwater.31 Although there is reason to question whether these remedies were meaningfully available to the general public,32 these examples from the Digests do have parallels in the common law. It is possible that the common-law rules emerged with knowledge of Roman law.33 But it is far more likely, given the role of custom in early English law, that they arose from the same practicalities that created the Roman rules—similar to the practicalities that led English and American courts to adopt a rule of capture for acquisi-tion of title to fish and wild animals.

What is not in doubt, however, is that Roman law allowed for private appropriation of the sea, running waters, and the seashore, and for alienation of those resources by the state where it had previously claimed title. While private title to such resources could be difficult to define and enforce because of their physical characteristics, neither those characteristics nor the perceived public importance of the resources dictated public title. Under Roman law, “things common to all” were those things available for taking and conversion to private property, not things that could only be held in common. Thus, there is no precedent in Roman law for the modern claim that the public trust doctrine precludes alienation of natural resources owned by the state. Perhaps the most convincing evidence of this legal reality is the fact that Roman law recognized and protected private property in the sea and seashore, whether acquired by appropriation or grant from the state. If anything, Roman law may have served as precedent for the longstanding English and Ameri-can recognition of private title in those same so-called public trust resources.

Another difficulty for those who rely on Roman law as precedent for modern public trust claims is that Roman law made no distinction, until near the end of the Empire, between a public and a personal status of the emperor.34 That is, the emperor did not exercise sovereignty over some things on behalf of the public ( jus publicum) and control of other things in a proprietary capacity ( jus privatum).35 The private interests of the ruler were, by definition, the public

31. See Huffman, supra note 16, at 15.32. According to Patrick Deveney, “[t]he actual effect of these injunctions was

negligible. . . . They were granted ex parte and without investigation into the actual situation; consequently, the interdicts were phrased hypothetically and amounted to no more than a mere statement of the rule the praetor recog-nized . . . .” Deveney, supra note 30, at 24.

33. Bracton is generally credited with introducing aspects of Roman law to the English common law in his 13th century De Legibus et Consuetudinibus Angli-ae. With regard to Roman law influences on English law as a consequence of Bracton’s many references to Roman law, Sir William Holdsworth observed: “No doubt there is a body of thoroughly English rules; and Bracton differs at very many points from the Roman texts. But it is clear that he has used Roman terms, Roman maxims, and Roman doctrines to construct upon na-tive foundations a reasonable system out of comparatively meager authorities.” William S. Holdsworth, 2 A History of English Law 286 (3d ed. 1923) (emphasis added).

34. See Deveney, supra note 30, at 17.35. Id.

interest—or vice versa.36 Applied to the modern state, such a doctrine of unlimited sovereign authority in the ruler would mean either that the state can alienate nothing or alienate everything. The fact that virtually every private property in the western United States was acquired directly or indirectly from the national government confirms that the former is not the case. And certainly, the latter is not the rule aspired to by advocates for an expansive public trust.

English law would eventually provide better precedent for those who would distinguish between the private and public roles of the ruler, but there is a difficulty in relying on jus publicum constraints on a crown that derives its authority from God as precedent for similar limits on governments that derive their authority from the people. In a government founded on popular sovereignty, the jus publicum is defined by the people and cannot, therefore, be a limit on the exer-cise of their sovereign powers. Not to mention the irony of appealing to the laws of states in which the Emperor or King could do no wrong.

II. English Law

If not Roman law, then surely English law can supply a dis-tinguished and ancient pedigree to an expansive 21st century public trust doctrine. English law was the law of the English colonies in North America and it was retained by the various states after independence.37

As with many assertions of right under modern American law, the public rights of the public trust doctrine are often said to derive from the Magna Carta, notwithstanding that it was largely an agreement by the King to respect the rights of his barons.38 Two chapters serve as precedent for the pub-lic trust doctrine. Chapter 16 provides: “No riverbanks shall be placed in defense from henceforth except such as were so placed in the time of King Henry, our grandfather, by the same places and the same bounds as they were wont to be in his time.”39 According to Matthew Hale, this provision was a reaction to the King having placed “as well fresh as salt rivers [in defense] for [the Kings’ recreation]; that is, to bar fishing and fowling in a river till [sic] the King had taken his pleasure or advantage of the writ or precept de defensione 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

36. Id.37. See generally William B. Stoebuck, Reception of English Common Law in the

American Colonies, 10 Wm. & Mary L. Rev. 393 (1968).38. For an account of how Magna Carta “was reinvented as a potent symbol of

liberty and justice,” see Alex Lock, Radicalism and Suffrage, Brit. Libr. (Mar. 13, 2015), https://www.bl.uk/magna-carta/articles/radicalism-and-suffrage [https://perma.cc/8EDL-ZCGL].

39. The quoted language is from the 1225 version of Magna Carta. It was derived from Chapter 47 of the 1215 version that provided: “All forests that have been made such in our time shall forthwith be disafforsted; and a similar course shall be followed with regard to river banks that have been placed ‘in defense’ by us in our time.” Magna Carta Chapter 16, art. 20 (Eng. 1225).

40. Matthew Hale, A Treatise De Jure Maris et BrachioruM eJusDeM (1670), reprinted in Stuart A. Moore, A History of the Foreshore and the Law Relating Thereto 370, 373 (1888).

41. See generally Gann v. Free Fishers (1865) 11 HL 1305 (Eng.), Malcomson v. 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 it required the riparian owner to repair, at his own expense, roads and bridges in preparation for the King’s fishing expe-ditions.42 Chapter 16 protected the landed barons from lia-bility for expenditures in support of the King’s pleasures, but not a public right to fish or navigate on the streams and rivers of the realm.

Chapter 23 provides: “All kydells [fish weirs] for the future, shall be quite removed out of the Thames and the Medway, and through all England, excepting upon the sea coast.”43 The provision has been relied upon by later writers and some courts as precedent for prohibitions on obstruc-tions to navigation, but its purpose at the time was to prevent the King from blocking fish passage to the private fisheries of upstream barons. While Chapter 23 is sometimes referenced as a foundational precedent for a public right of navigation, it was actually relied upon by Lord Hale as proof that private ownership of submerged lands was allowed.44

The conflicts sought to be resolved by Magna Carta reflected preexisting understandings of rights in the resources at issue. It was generally accepted that from the Norman Conquest, the Crown held title to all lands and waters. It was also understood that private parties could acquire title by crown grant. In dispute were which lands and waters had been granted and what rights were reserved in the Crown. In fact, many private holdings had been acquired by appro-priation of unoccupied lands, so there was no small dose of fiction in the notion that all private rights were by grant from the Crown.45 But it was the case that “[b]y the reign of King John almost all of the foreshore and the rivers of the king-dom either were still held by the Crown as private property or had been granted in fee to individual holders.”46 Magna Carta acknowledged these private claims, but none resem-bling a general public right of access. Indeed, recognizing the claims of the barons confirmed that the Crown could neither exclude them from their private lands and waters nor mandate that they provide for the King’s access to his private domain, and also that they (the barons) could exclude the public from their private lands and fisheries.

Although 13th century jurist Bracton introduced the Roman idea of public rights in navigable waters to English

was not seen as an obstacle to the granting of exclusive fisheries, Carter v. 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 (K.B. 1762).

42. Deveney, supra note 30, at 40.43. Magna Carta Chapter 23 (Eng. 1225), http://www.bsswebsite.me.uk/Histo-

ry/MagnaCarta/magnacarta-1225.html. The same language appears in Chap-ter 33 of the 1215 version, available at http://www.bsswebsite.me.uk/History/MagnaCarta/magnacarta-1215.html.

44. The exception of weares upon the sea-coast[s] . . . make it appear that there might be such private interests not only in point of liberty, but in point of propriety, on the sea-coast and below the low-water mark . . . . But in all of these statutes, though they prohibit the thing, yet they do admit, that there may be such an interest lodged in a sub-ject, not only in navigable rivers, but even in the ports of the sea itself contiguous to the shore, though below the low-water mark, whereby a subject may not only have a liberty, but also a right of property of soil.

Hale, supra note 40, at 389.45. Huffman, supra note 16, at 22–23.46. Deveney, supra note 30, at 39.

law, five centuries would pass before an English court would rule that the Crown could not grant exclusive fisheries to pri-vate parties.47 By then, however, most of the valuable fisheries had already been granted. In an unreported case decided in 1632, an English court held that submerged and tidal lands were presumed to remain with the King unless expressly granted.48 Although not cited by another English court for 163 years,49 nor relied upon by a jury for another nearly a centuryafter that,50 this so-called prima facie rule is often ref-erenced today as precedent for presumptive state title to sub-merged and tidal lands with the suggestion that the rule is founded on a public right in those lands. While presumptive state title to submerged and tidal lands is understood today as recognition of the importance of such lands to the public, the English rule is hardly convincing precedent since it was invented to support the King’s claim to lands long in pri-vate use and possession, but without proof of Crown grant. And whatever its nefarious English roots, the prima facie rule recognizes the validity of express government grants of sub-merged lands.51

III. Early American Law

On most questions of English law, 19th century American courts and commentators looked first to William Black-stone’s Commentaries on the Laws of England. But on the law of the sea, their primary source was Lord Chief Justice Matthew Hale’s treatise De Jure Maris.52 Consistent with 19th century English law, Hale accepted the prima facie rule but was clear that title to submerged lands could be, and in large part had been, acquired for private use.53 In his discus-sion of the law relating to the use of navigable waters, Hale identified three categories of coastal property: jus privatum, the proprietary title in individuals or the Crown; jus regium, the royal right or what we would call police power; and jus publicum.54 With respect to the latter Hale wrote:

[T]he people have a publick [sic] interest, a jus publicum, of passage and repassage [sic] with their goods by water, and must not be obstructed by nuisances or impeached by exac-tions . . . . [F]or the jus privatum of the owner or propri-etor is charged with and subject to that jus publicum which belongs to the king’s subjects; as the soil of an highway is,

47. Carter v. Murcot (1768) 98 Eng. Rep. 2162.48. See Attorney General v. Philpott (1632), reported only in Stuart A. Moore,

A History of the Foreshore and the Law Relating Thereto 895–907 (1888). The case was decided by a corrupt court at the King’s urging and may never have been acted upon.

49. See Attorney General v. Richards (1795) 145 Eng. Rep. 980 at 981. Moore, supra note 48, at 263.

50. Moore, supra note 48, at 616.51. Huffman, supra note 16, at 23–34.52.

The treatise of Sir Matthew Hale, De Jure Maris, has been so often recognized in this country, and in England, that it has become the text book, from which, when properly understood, there seems to be no appeal either by sovereign or subject, upon any question relating to their respective rights, either in the sea, arms of the sea, or private streams of water.

Ex parte Jennings, 6 Cow. 518 (N.Y. Sup. Ct. 1826).53. Hale, supra note 40, at 327.54. Id. at 372–74.


which though in point of property it may be a private man’s freehold, yet it is charged with a publick [sic] interest of the people, which may not be prejudiced or damnified.55

Thus, under English law as understood by 19th century American courts and commentators, there were three aspects to coastal property: the land (possessed by individuals, the Crown, or the state), the right of navigation over and past the land (possessed by the public in the form of an easement), and the power of the state to enforce the public right (the royal right or police power). The pervasive fisheries grants in England confirmed that there was no public right to fish unless granted by the landowner.56 The pervasive private ownership of submerged and riparian lands confirmed that there was no prohibition on crown or state alienation of the land, although the public right to navigate would be unaf-fected. Neither Hale nor Blackstone mention a public trust doctrine, but by the time of American independence, English law (and thus the law of the American colonies) recognized a public right to navigate on navigable (defined as tidal) waters and a public right to fish in waters where no exclusive fishery had been retained by the crown or granted to individuals.

With American independence, sovereignty shifted from the Crown to the state governments. Several questions rel-evant to the public trust doctrine had to be resolved as a consequence of there being a new sovereign: First, what laws apply? Second, who owns what, and particularly, who has title to submerged and riparian lands? Lastly, what rights does the public, the true sovereign, possess?

With respect to the laws under which government is orga-nized, the change was revolutionary. The states each enacted constitutions to replace the unwritten constitution under which the Crown and parliament exercised sovereignty. With respect to the powers of the sovereign, there was little change in terms of the scope of powers, but revolutionary change in the inclusion of written bills of rights constraining the exer-cise of those powers.57 By way of confirming that the com-mon law of England would remain the law, the new states enacted laws confirming the “reception” of English common law, subject, of course, to changes made by the newly sover-eign state legislatures.

Among the received English law principles was that every-thing is owned, either by government or privately.58 With

55. Id. at 404–05.56.

But though the king is the owner of this great wast [the sea], and as a 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, as a publick [sic] common of piscary, and may not without injury to their right be restrained of it, unless such places or creeks or navigable rivers, where either the king or some particular subject hath gained a propriety exclusive of that common liberty.

Id. at 377.57. Many in the founding generation would have said that their bills of rights were

not revolutionary, but rather the expression of the already existing rights of Englishmen that had been abridged in the colonies. Not every state enacted a bill of rights along with their first constitution.

58. The principle of universal title in the Crown, combined with the king’s power to grant title and the concepts of customary use and prescrip-tion, made it possible “to assign a particular proprietor to every thing

respect to the ownership of lands, the states, as the new sov-ereigns, succeeded to the Crown’s titles including those held in the name of the former colonies. Because grants previously made by the crown or by the colonial authorities were gen-erally respected, significant portions of the states remained as private property. As one of the compromises leading to the Constitution of 1787, the extensive western land claims of several states were ceded to the new federal government, making the United States a large landowner a dozen years after the Revolution. With the exception of lands required for government facilities and functions, the expectation with respect to both state and federal lands was that they would, in due course, be conveyed or transferred to private owners. Conforming with the retained English common law, submerged lands on non-navigable waters were owned by the riparian owner to the thread of the stream or river,59 and submerged lands on navigable waters were owned by the state unless previously granted to a private party.60 Lord Hale summarized the English rule as follows:

In case of private rivers, the lords having the soil is good evidence to prove he hath the right of fishing, and it puts the proof on them who claim liberam piscariam. But in case of a river that flows and reflows prima facie it is common to all. If any claim it to himself, the proof lieth on his side; and it is a good justification to say, the locus in quo is a branch of the sea, and that the subjects of the king are entitled to a free fishery.61

Thus, where ownership of submerged lands beneath navi-gable waters was in doubt, retained English law invoked the prima facie rule—absent evidence of prior grant or user, the state is the presumptive owner. But American courts came to view the prima facie rule not as one of evidence, as it was in England, but as a rule of title. This seemingly subtle shift from the English precedents contributed to modern confu-sion about the relationship between state ownership of sub-merged lands and the public trust doctrine. Under English law, the evidentiary presumption of state ownership reflected that original title was understood to be in the Crown, mean-ing that any private claims would require proof of subsequent legal acquisition. As a rule of title, the presumption of state ownership was easily understood to derive from the public’s navigation and fishing rights, notwithstanding that the exer-cise of those rights was in no way dependent on state owner-ship as confirmed by Lord Hale62 and as evidenced by the many 19th and 20th century grants of submerged lands for

capable of ownership, leaving as little as may be in common, to be the source of contention and strife.”

Huffman, supra note 16, at 28 (quoting Browne v. Kennedy, 5 H. & J. 195, 208 (Md. 1821) (Earle, J., dissenting)).

59. “[B]y the rules and authorities of the common law, every river where the sea does not ebb and flow, was an inland river not navigable, and belonged to the owners of the adjoining soil.” Palmer v. Mulligan, 3 Cai. R. 307, 318 (N.Y. Sup. Ct. 1805) (Kent, C.J., concurring).

60. Ex parte Jennings, 6 Cow. 518 (N.Y. Sup. Ct. 1826).61. Arnold v. Mundy, 6 N.J.L. 1, 60 (N.J. Sup. Ct. 1821) (Rossell, J.).62.

Lord Hale’s tripartite division of rights in the coastal area in no way linked the jus publicum to the king (or the state) having title to the submerged or riparian lands. As Hale defined it, the jus publicum is a


private use. Thus, an evidentiary rule invented by the Crown for the purpose of expropriating title from private owners unable to prove title beyond long-term use was transformed into the notion that public rights of navigation and fishing in navigable waters precludes private ownership of submerged lands beneath those waters (and to assert public title to sub-merged lands long understood to be private property).63

The prima facie rule as a rule of title was applied by Chief Justice Andrew Kirkpatrick in Arnold v. Mundy,64 often cited as the foundational case of the American public trust doc-trine. The plaintiff claimed the defendant trespassed (and appropriated oysters) on his private oyster beds in the tidal mud flats of the Rariton River at Perth Amboy in New Jersey. The claim of title was based on a survey made under New Jer-sey law, the plaintiffs having planted and tended the oysters, and a chain of title dating from the twenty-four proprietors of East New Jersey and the King of England. The defendant claimed he had a right shared in common with fellow citi-zens to take oysters in the navigable waters of the state. The issue, wrote Kirkpatrick (who had already ruled on the case at trial), was “[a]s to the right of the proprietors to convey.”65 Distinguishing between public and common property, Kirk-patrick found that under English law the King may not, “appropriate it to himself, or to the fiscal purposes of the nation, the enjoyment of it is a natural right which cannot be infringed or taken away, unless by arbitrary power; and that, in theory at least, could not exist in a free government, such as England has always claimed to be.”66 Thus, the King’s grant to the twenty-four proprietors via their predecessors in title did not allow for any private rights to the oyster beds in question. The fact that such private grants were pervasive in England and New Jersey alike only indicated the extent of the “usurpation of . . . ancient common rights.”67

The original grants on which the Arnold plaintiff based his claim were made under the full force of English law. But, of course, the case was being heard under New Jersey law, which, only a year before Kirkpatrick wrote, was supple-mented by the New Jersey Legislature with an act authoriz-ing individuals owning lands adjacent to waters “wherein oysters do or will grow” to plant and have the exclusive right of harvesting oysters.68 Not only did Kirkpatrick ignore the legislative act, but he proclaimed a theory of public rights that explains why the case remains a favorite of those advo-cating an expansive public trust doctrine:

public right in the nature of an easement whether the land is owned by the king, by a private party, or by no one.

Huffman, supra note 16, at 30.63. See PPL Montana, LLC v. Montana, 565 U.S. 576 (2012) (in which the state

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-mous Smackdown of a State Land Grab, 2011−2012 Cato Sup. Ct, Rev. 167 (2012).

64. 6 N.J.L. 1, 9 (N.J. Sup. Ct. 1821) (Kirkpatrick, C.J.).65. Id. at 69 (Kirkpatrick, C.J.).66. Id. at 72–73 (Kirkpatrick, C.J.).67. Id. at 73 (Kirkpatrick, C.J.).68. Act for the Preservation of Clams and Oysters, 1820 N.J. Laws 162 § 9.

Upon the whole, therefore, I am of opinion, as I was at the trial, that by the law of nature, which is the only true foun-dation of all the social rights; that by the civil law, which for-merly governed almost the whole civilized world, and which is still the foundation of the polity of almost every nation in Europe; that by the common law of England, of which our ancestors boasted, and to which it were well if we ourselves paid a more sacred regard; I say I am of opinion, that by all these, the navigable rivers in which the tide ebbs and flows, the ports, the bays, the coasts of the sea, including both the water and the land under the water, for the purpose of pass-ing and repassing, navigation, fishing, fowling, sustenance, and all the other uses of the water and its products (a few things excepted) are common to all the citizens, and that each has a right to use them according to his necessities, subject only to the laws which regulate that use . . . .69

Kirkpatrick acknowledged that the legislature, empowered by the people,

may lawfully bank off the water of those rivers, ports, and bays, and reclaim the land upon the shores; they may build dams, locks, and bridges for the improvement of the naviga-tion and the ease of passage; they may clear out and improve fishing places to increase the product of the fishery; they may create, improve, and enlarge oyster beds, by planting oysters thereon, in order to procure a more ample supply; they may do all this themselves at the public expense, or they may authorize others to do it by their own labour, and at their own cost, giving them reasonable tolls, rents, profits, or exclusive enjoyments.70

But he dismissed these powers as “nothing more than what is called the jus regium, the right of regulating, improv-ing, and securing for the common benefit of every individual citizen.”71 “[D]ivesting all the citizens of their common right . . . would be a grievance which never could be long borne by a free people.”72 Kirkpatrick did not address how the powers of a democratic sovereign might be different from those of a King, or how the rights of a free people (public rights as distinct from private rights) can be violated by an act of a legislature elected by those same people.

That question was addressed twenty-one years later in Martin v. Waddell’s Lessee,73 albeit by the dissent. On its facts, Martin looked very much like Arnold with one critical differ-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 private claimants, Chief Justice Taney, writing for the major-ity, relied on Arnold to support a ruling for the defendant. With reference to the plaintiff’s claim, Taney cited two Eng-

69. Arnold, 6 N.J.L. at 76–77 (Kirkpatrick, C.J.).70. Id. at 13.71. Id. at 78.72. Id. at 13 (alterations in original).73. 41 U.S. 367, 420 (1842).74. Id. Defendant’s grant was made pursuant to the Act of November 25, 1824.

1824 N.J. Laws 28 §§ 3–6 (encouraging and regulating the planting of oysters in the township of Perth Amboy).


lish cases in asserting that “the question must be regarded as settled in England, against the right of the king, since Magna Carta, to make such a grant.”75 It was left to Justice Smith Thompson in dissent to observe that “if the king held such lands as trustee, for the common benefit of all his subjects, and inalienable as private property, I am unable to discover, on what ground the state of New Jersey can hold the land discharged of such trust, and can assume to dispose of it to the private and exclusive use of individuals.”76 Thompson’s conclusion was that the King, like the state (his successor in title), did have power to alienate the lands in question, mak-ing the dispute over which party held the better title to an exclusive right in the oyster beds. Ten years later, in a similar dispute in Den v. Ass’n of New Jersey, Taney would cite Martin in finding for the state’s grantee, but without any mention of the Crown grant being an infringement on public rights.77

It may seem puzzling that Martin is frequently cited as early American precedent for the public trust doctrine given that in both Martin and Den the court upheld private claims of right in tidal lands. It is true that in Martin, for the first time in a U.S. Supreme Court opinion, the concept of a pub-lic trust was raised in the context of navigable waters juris-prudence. “The country mentioned in the letters-patent,” wrote Taney, “was held by the king in his public and regal character, as the representative of the nation, and in trust for them.”78 But this use of the term trust could have either of two meanings. It could mean, as advocates of an expansive public trust doctrine would have it, that the lands in ques-tion could not be alienated, or at least were subject to the whatever public easements the trust might guarantee. But “the country mentioned in the letters-patent” would come to constitute the eastern half of the state of New Jersey, most of which was long since alienated and in the exclusive con-trol (subject to the state’s police power) of private owners. So, Taney’s use of the term trust can only mean that a free people (the sovereign people of New Jersey) have a right to have their government rule in service of the public good, including in the disposition and regulation of navigable waters and sub-merged lands. The grant of letters of patent conveyed to the twenty-four proprietors was first and foremost a delegation of political authority over the entirety of East New Jersey and by default a grant of title to crown lands within that territory.

Thus, Martin provides little support for modern claims of expansive public rights relating to natural resources and the environment. Taney was wrong in concluding that the origi-nal grant from the King was either proprietary or sovereign, but not both. As Thompson noted in dissent (citing Hale), the “king of England hath a double right in the sea, viz., a right of jurisdiction, which he ordinarily exercises by his admiral,

75. Martin, 41 U.S. at 410. Neither of the two cases cited by Taney (Blundell v. Catterall, 106 Eng. Rep. 1190, 1197, 1199–1200, 1203, 1205 (K.B. 1821), and Duke of Somerset v. Fogwell, 108 Eng. Rep. 325, 328–29 (1829)) support his conclusion. In Blundell, the defendant acknowledged the plaintiff’s title to shore lands and adjacent fisheries, claiming only a right of access and to bathe. In applying the prima facie rule, the Somerset court acknowledge the King’s authority to grant exclusive fisheries. See Huffman, supra note 16, at 46–48.

76. Huffman, supra note 16, at 44–45.77. 56 U.S. 426, 432–33 (1853).78. Martin, 41 U.S. at 409.

and a right of propriety or ownership.”79 The letters of pat-ent conveyed both. Taney was also wrong to conclude that the law governing the letters of patent precluded alienation of the oyster fishery. The applicable law, noted Thompson, “is, that prima facie a fishery in a navigable river is com-mon, and he who sets up an exclusive right, must show title, either by grant or prescription.”80 The state of New Jersey was presumed to have title to submerged lands under navi-gable waters but, like the King, could grant exclusive rights in those lands where, in the judgment of the sovereign people as represented in their legislature, it would serve the public. Furthermore, Taney’s argument with respect to a public trust was pure dicta given that both parties to the lawsuit asserted an exclusive private right.

It is also noteworthy that eight years after Martin, Arnold v. Mundy was effectively (though not expressly) reversed by the New Jersey Supreme Court in Gough v. Bell.81 The Gough court observed that the Arnold ruling was in conflict with several legislative acts which authorized the erection of dams, bridges, piers and docks and the appropriation of oyster beds. For the majority, Chief Justice Henry Green cited Massa-chusetts Chief Justice Lemuel Shaw, who stated “a navigable stream may cease to be such, by the appropriation of the soil, under legislative authority, to other purposes . . .”82; and Chief Justice John Marshall, who wrote “[the placing of a dam in a navigable waterway] is an affair between the government of Delaware and its citizens . . . .”83 Green concluded that

If, by this proposition [no alienation of public trust resources], it is meant only to assert that a grant of all the waters of the state, to the utter destruction of the rights of navigation and fishery, would be an insufferable grievance, it is undoubtedly true . . . . But if it be intended to deny the power of the legislature, by grant, to limit common rights or to appropriate lands covered by water to individual enjoy-ment, to the exclusion of the public common rights of navi-gation or fishery, the position is too broadly stated.84

New Jersey Chief Justice Green’s reasoning in Gough was supported four decades later by the Supreme Court in Illi-nois Central Railroad v. Illinois (Illinois Central). Although the Illinois Central case is routinely cited as the holy grail of expanded American public trust doctrine, the Supreme Court did not rule that the state of Illinois could not alienate submerged lands, nor did it extend the public trust doctrine beyond navigable waters or to public uses other than naviga-tion and fishing.85 Five times in his opinion for the major-ity in Illinois Central, Justice Field reiterated that the state could alienate submerged and riparian lands unless doing so

79. Id. at 422 (Thompson, J., dissenting).80. Id. at 424 (Thompson, J., dissenting).81. 22 N.J.L. 441 (N.J. 1850).82. Charlestown v. Cty. Comm’rs of Middlesex, 44 Mass. 202, 203 (Mass. 1841).83. Willson v. Back Bird Creek Marsh Co., 27 U.S. 245, 251 (1829).84. Gough, 22 N.J.L. at 459.85. Nor is Illinois Central a confirmation of a public-spirited action by the Illinois

Legislature in revoking its original grant to the railroad. The history of the case from beginning to end is one of political self-dealing. See Joseph D. Kearney & Thomas W. Merrill, The Origins of the American Public Trust Doctrine: What Really Happened in Illinois Central, 71 U. Chi. L. Rev. 799 (2004).


obstructed the public’s rights to navigate and fish in navi-gable waters.86 Indeed, he observed that “[t]he interest of the people in the navigation of the waters and in commerce over them may be improved in many instances by the erection of wharves, docks, and piers therein, for which purpose the state may grant parcels of the submerged lands . . . .”87 Justice Field also stated that the lands in question were “held in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein, freed from the obstruction or interference of private parties.”88 Navigation and fishing—nothing more.

Illinois Central did confirm one apparent difference between the American and English public trust doctrines. In both jurisdictions, the doctrine limited the use of lands beneath navigable waters. Due to England having few navi-gable waters not affected by the tides, the test for navigability was generally determined by the reach of the tides. Ameri-can courts were quick to recognize that on a continent with numerous navigable rivers and lakes, the public’s interest in free navigation would not be adequately served if limited to waters affected by the tides. That is, the purpose of the com-mon-law rule would not be served unless navigable waters were understood to include navigable-in-fact waters, whether or not affected by the tides.

While this application of the public trust doctrine to navigable-in-fact waters served the purposes of the doctrine, it had the effect, given the American understanding of the prima facie rule as one of title, of also establishing state title to lands beneath those waters. This explains the state of Illinois’ ownership of the submerged lands off the Chicago waterfront. But the public’s right to navigate and fish in those

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 as follows:

It is the settled law of this country that the ownership of and do-minion and sovereignty over lands covered by tide waters, within the limits of the several states, belong to the respective states . . . with the consequent right to use or dispose of any portion thereof, when that can be done without substantial impairment of the interest of the public in the waters . . . .

Id. at 435;It is grants of parcels of lands under navigable waters that may afford foundation for wharves, piers, docks, and other structures in aid of commerce, and grants of parcels which, being occupied, do not sub-stantially impair the public interest in the land and waters remaining, that are chiefly considered and sustained in the adjudged cases as a valid exercise of legislative power consistently with the trust to the public upon which such lands are held by the state.

Id. at 452;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 public therein, or can be disposed of without any substantial impair-ment of the public interest in the lands and waters remaining.

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-tioned for the improvement of the navigation and use of the waters, or when parcels can be disposed of without impairment of the public interest in what remains, than it can abdicate its police powers . . . .

Id.; “The trust with which they are held . . . cannot be alienated, except in those instances mentioned of parcels used in the improvement of the interest held, or when parcels can be disposed of without detriment to the public interest in the lands and waters remaining.” Id. at 455–56.

87. Id. at 452.88. Id.

waters was not dependent on the state holding title. Those rights existed without regard to ownership of the submerged lands and served as a limitation on the use of those lands.

With respect to the nature and extent of public rights in navigable waters, there was nothing new or revolutionary in the Illinois Central decision. It supplies no precedent for an expansion of the land or resources to which the doctrine applies or of the public rights of use of public trust resources. But the decision did contribute to a confusion between the police power and the public trust that has bedeviled public trust law over the ensuing 125 years. Citing Arnold, Justice Field wrote that “[t]he sovereign power, itself . . . cannot con-sistently with the principles of the law of nature and the con-stitution of a well-ordered society, make a direct and absolute grant of the waters of the state, divesting all the citizens of their common right.”89 In dissent, Justice George Shiras objected that a grant of state property to Illinois Central in no way compromised the sovereign powers of the state.90 As Shiras explained, the sovereign power of the state is not the same thing as the public trust. The former are the powers inherent in all governments, though subject to any consti-tutional limits.91 The latter are the rights held in common by all citizens in the nature of an easement on both private and public properties.92 Justice Field further confused the matter by stating that the state’s title to the submerged lands under Lake Michigan “necessarily carries with it control over the waters above them, whenever the lands are subjected to use.”93 But the state’s responsibility to secure the public’s right to navigate and fish in the lake existed whether or not the state held title to the lakebed.

IV. 20th Century American Law

Since its decision in Illinois Central, the Supreme Court has cited that case in a total of thirty other opinions, twenty-three of which were rendered in the three decades following Illinois Central. In almost all of those opinions, the reference to Illinois Central related not to the public trust doctrine, but rather to disputes over title to submerged lands. Whereas state title to lands under both tidal and navigable fresh waters was often attributed to the public’s rights to navigate and fish in the overlying waters, the court consistently recognized “the consequent right [of the state] to use or dispose of any portion thereof, when that can be done without substantial impairment of the interest of the public in such water, and subject to the paramount right of congress to control their navigation so far as may be necessary for the regulation of commerce.”94 Under American law, the prima facie rule had thus come to function as a rule of title, but not a prohibition

89. Id. at 456.90. Id. at 467 (Shiras, J., dissenting).91. The jus regium in Hale or the police power in modern parlance.92. For Hale, the public rights are the jus publicum and the private rights, whether

held by individuals or by the state, are the jus publicum.93. Ill. Cent. R.R., 146 U.S. at 452.94. See, e.g., id. at 435; Morris v. United States, 174 U.S. 196, 236 (1899); Kean

v. Calumet Canal & Improvement Co., 190 U.S. 452, 481–82 (1903); United States v. Chandler-Dunbar Water Power Co., 209 U.S. 447, 451–52 (1908); Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 333, 4 ELR 20094 (1973), over-


on public conveyance of submerged lands. Private ownership could derive from pre-Independence grants by the Crown or other sovereigns,95 from post-independence grants of ter-ritorial lands by the United States,96 from post-independence grants by the states, or from future grants by the states.97

With a single exception, the handful of post-Illinois Cen-tral Supreme Court decisions that address the public trust doctrine offer little to those seeking to liberate the doctrine from its historical shackles. In Appleby v. City of New York, the Court made clear that Illinois Central did not preclude state alienation of submerged lands and that the public trust doctrine is one of state, not federal, law. Chief Justice Wil-liam Taft quoted the following from a New York Court of Errors opinion:

[T]here can be no doubt of the right of Parliament in Eng-land, or the Legislature of this state, to make such grants, when they do not interfere with the vested rights of par-ticular individuals. The right to navigate the public waters of the state and to fish therein, and the right to use the pub-lic highways, are all public rights belonging to the people at large. They are not the private unalienable rights of each individual. Hence the Legislature as the representatives of the public may restrict and regulate the exercise of those rights in such manner as may be deemed most beneficial to the public at large: Provided they do not interfere with vested rights which have been granted to individuals.98

Writing for a unanimous court, Taft would explain that a grant of the entire waterfront of Chicago is different from the grant of submerged lands for the construction of a wharf and other commercial facilities, but his brief quotation from the New York court encapsulated the essence of the public

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).

95. Summa Corp. v. Cal. ex rel. State Lands Comm’n, 466 U.S. 198, 209, 14 ELR 20464 (1984).

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 the soils under them, whether within or above the ebb and flow of the tide . . . shall not be granted away during the period of territorial government.” Shively v. Bowlby, 152 U.S. 1, 49 (1894). But three decades later, the court affirmed that Congress did not always adhere to the theory:

[T]he United States early adopted and constantly has adhered to the policy of regarding lands under navigable waters in acquired territory, 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 in exceptional instances when impelled to particular disposals by some international duty or public exigency. It follows from this that dispos-als by the United States during the territorial period are not lightly to be inferred, and should not be regarded as intended unless the inten-tion was definitely declared or otherwise made very plain.

United States v. Holt State Bank, 270 U.S. 49, 55 (1926).97.

As the king, by his charter, put the colonial government in his place, they held the right in and over the arms of the sea, navigable rivers, and the land in the colony, for the benefit of the people of the colony, as a public trust, not as a private estate; the people of the colony had the right of fishing, navigating and passing freely in and over the pub-lic waters, subject to such grants of franchise or property as might have been made, or which should be made in future.

Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 36 U.S. 420, 650 (1837).

98. Appleby v. City of New York, 271 U.S. 364, 382 (1926) (quoting Lansing v. Smith, 4 Wend. 9 (N.Y. 1829)).

trust doctrine. There is a public right to navigate and fish in navigable waters, and thus a restriction on uses of those waters and their underlying submerged lands that interfere with the public right. Because public rights belong to the people at large and are distinct from the vested rights of indi-viduals, the legislature, as representatives of the public, may alienate submerged lands and authorize the obstruction of navigable waters in whatever manner deemed beneficial to the public—so long as they do not violate vested individual rights. Illinois Central was different (and unusual) in that a grant of the entire harbor could not pass muster as consistent with the public right.

Since Appleby, the Supreme Court has addressed the pub-lic trust doctrine in only four cases, all involving issues of title to submerged lands. In Summa Corp. v. California ex rel. State Lands Commissions, the court acknowledged in a foot-note (citing Illinois Central) that “alienation of the beds of navigable waters will not be lightly inferred,” but recognized that “property underlying navigable waters can be conveyed in recognition of ‘international duty.’”99 In Phillips Petroleum v. Mississippi, the court ruled that notwithstanding Phillips Petroleum’s recorded titles, years of property tax payments and a chain of title dating back over 150 years to Spanish land grants, the state of Mississippi had title to disputed tide lands pursuant to the equal footing doctrine.100 In Idaho v. Coeur d’Alene Tribe of Idaho, the court ruled that the Coeur d’Alene Tribe of Idaho was prevented by the Eleventh Amendment from asserting its claim to title to submerged lands under Lake Coeur d’Alene in federal court.101 Justice Anthony Kennedy’s opinion announcing the 5−4 ruling of the court included an extensive discourse on the public rights in navigable waters.102 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, while again opining on the public trust doctrine.103

Although all four cases relate to title to submerged lands and therefore are not properly understood as public trust doctrine cases, the last three contribute, in dicta, to the ever-expanding distortions of the history of the doctrine. In Phillips Petroleum, Justice Byron White first ties state title to the public trust and then abandons navigability as the test for the extent of lands affected with a public trust.104 Because “the states have interests in lands beneath tidal waters which have nothing to do with navigation,” Justice

99. Summa Corp., 466 U.S. at 207 (citing Montana v. United States, 450 U.S. 544, 552 (1981)).

100. See Phillips Petroleum v. Mississippi, 484 U.S. 469, 484, 18 ELR 20483 (1988). “There can be no distinction between those states which acquired their independence by force of arms and those which acquired it by the peaceful consent of older states. The Constitution says, the latter must be admitted into the union on an equal footing with the rest.” Pollard v. Hagan, 44 U.S. 212, 216 (1845).

101. See Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 27 ELR 21227 (1997). Subsequently, the United States sued the state of Idaho in its guardian capacity asserting the tribe’s claim to title. In another 5–4 decision, the Su-preme Court ruled that the lands in question had been reserved by the United States for the benefit of the tribe and did not pass to the state of Idaho when it became a state. See Idaho v. United States, 533 U.S. 262, 281 (2001).

102. Coeur d’Alene Tribe of Idaho, 521 U.S. at 286.103. See PPL Mont., LLC v. Montana, 565 U.S. 576 (2012).104. Phillips Petroleum, 484 U.S. at 476, 479–80.


White concludes that the state of Mississippi has title to the tidelands in question.105 But the existence of state inter-ests in particular lands, even in navigation over those lands, does not establish state title to those lands. Both private and public lands can be affected by, or subject to, the pub-lic trust. Because American law treated the English prima facie rule as a rule of original state title in submerged lands under navigable waters, it should be expected that the extent of the public trust would parallel the extent of state title. But that does not mean that state title necessarily extends to all lands subject to the public trust, or that all lands to which the state holds title are subject to the trust. As Justice Sandra Day O’Connor observed in dissent, the seemingly “belated and opportunistic”106 claims of the state of Missis-sippi “could dispossess thousands of blameless record own-ers and leaseholders of land that they and their predecessors in interest reasonably believed was lawfully theirs.”107

Justice O’Connor’s dissent, joined by Justices John Paul Stevens and Antonin Scalia, in Phillips Petroleum, underscores a key reason for environmentalists’ pursuit of an expanded public trust doctrine. By definition, the public rights guar-anteed by the public trust are senior and therefore superior to any conflicting claims of private right. For example, the private owner of submerged lands has the right to construct a wharf in a navigable waterway, but not one that obstructs navigation. This is so without regard for the date or terms of the private right because the public right is understood to have existed from time immemorial. No statute, regulation, deed, or other evidence of the creation of the public right is required. Thus, an expansion of either the geographic extent of the public right or the uses guaranteed by that right will, as Justice O’Connor makes clear, unavoidably dispossess private rights holders of property they “reasonably believed was lawfully theirs.”108 Reasonable beliefs with respect to property rights, or any rights for that matter, are founded on established laws and judicial precedents, not on the ambi-tions, however estimable, of those who would change the law. That those who advocate for an expanded public trust doctrine acknowledge this commitment to the rule of law is underscored by their undying efforts to rewrite the his-tory, and the precedent, of the doctrine. When they succeed, as the state of Mississippi did in Phillips Petroleum, private property is taken for a public use without just compensa-tion. In rewriting the history of the public trust doctrine, the Phillips Petroleum majority ignored Justice Oliver Wendell Holmes’ caution that “[w]e are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”109

In Idaho v. Coeur d’Alene Tribe of Idaho, Justice Kennedy describes the state’s title to the submerged lands in dispute as

105. Id. at 476.106. Id. at 492. The state of Mississippi did not seek to protect the lands at issue

from environmental degradation. To the contrary, the state sought to benefit from the royalties generated from petroleum development of those lands.

107. Id. at 493.108. Id.109. Pa. Coal Co. v. Mahon, 260 U.S. 393, 416 (1922).

“an essential attribute of sovereignty.”110 He cites Martin v. Waddell’s Lessee and Pollard v. Hagan, the latter for the prop-osition “that States entering the Union after 1789 did so on an ‘equal footing’ with the original States and so have simi-lar ownership over these ‘sovereign lands.’”111 “The principle which underlies the equal footing doctrine and the strong presumption of state ownership,” writes Kennedy “is that navigable waters uniquely implicate sovereign interests.”112 He goes on to reference Justinian, Bracton, Magna Carta, Hale, Arnold v. Mundy and Illinois Central in support.113 But if submerged lands “uniquely implicate sovereign interests” and state ownership of those lands is “an essential attribute of sovereignty,” Justice Kennedy fails to explain why the United States could dispose of those lands during the ter-ritorial period when “the intention was definitely declared or otherwise made very plain.”114 In support of his assertion that ownership of submerged lands is an essential attribute of sovereignty Justice Kennedy notes that “[i]n England, from the time of Lord Hale, it has been treated as settled that the title in the soil of the sea, or of arms of the sea, below ordinary high water mark, is in the King,” but he fails to explain why the King’s sovereignty was not compromised when “an individual or a corporation . . . acquired rights in it by express grant, or by prescription or usage.”115 Justice Kennedy did seek to distance the sovereign states from the crown by asserting that “American law, moreover, did not recognize the sovereign’s rights of private property ( jus priva-tum) that existed in England, apart from the public’s rights to this land ( jus publicum).”116 But this is simply wrong. The reality is that states and the United States have disposed of submerged lands while retaining sovereign jurisdiction over those lands. This makes clear that under American law, like English law, the state has distinct proprietary and sovereign interests in land. While states do have proprietary title to submerged lands under navigable waters, claiming that state ownership of those lands is essential to state sovereignty is like the assertion in Geer v. Connecticut that the states own wildlife.117 In the words of Justice Marshall writing for the majority in Douglas v. Seacoast Products, Inc., it is “no more than a 19th century legal fiction expressing ‘the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.’”118 There is much fiction in Justice Kennedy’s historical discourse in Idaho v Coeur d’Alene Tribe of Idaho.

Most recently, in PPL Montana v. Montana, Justice Ken-nedy writing for a unanimous court again genuflected to the “ancient origin[s]” of the public trust doctrine. But that

110. Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 283, 27 ELR 21227 (1997) (quoting Utah Div. of State Lands v. United States, 482 U.S. 193, 195 (1987)).

111. Id.; Pollard, 44 U.S. at 222.112. Coeur d’Alene Tribe of Idaho, 521 U.S. at 284.113. Id. at 284–85.114. Id. (quoting United States v. Holt State Bank, 270 U.S. 49, 55 (1926)).115. Id. at 284 (quoting Shively v. Bowlby, 152 U.S. 1, 13 (1894)).116. Id. at 286.117. 161 U.S. 519 (1896).118. 431 U.S. 265, 284, 7 ELR 20442 (1977) (quoting Toomer v. Witsell, 334 U.S.

385, 402 (1948)).


doctrine, whatever its origins, said Justice Kennedy, was not relevant to resolving the title dispute between PPL Montana and the state of Montana:

Unlike the equal-footing doctrine . . . which is the consti-tutional foundation for the navigability rule of riverbed title . . . the public trust doctrine remains a matter of state law . . . While equal-footing cases have noted that the State takes title to the navigable waters and their beds in trust for the public . . . the contours of that public trust do not depend upon the Constitution. Under accepted principles of federalism, the States retain residual power to determine the scope of the public trust over waters within their borders, while federal law determines riverbed title under the equal-footing doctrine.119

Despite Justice Kennedy’s recounting of the modern myths of public trust doctrine history in Couer d’Alene Tribe of Idaho and PPL Montana, the court’s unanimous ruling in the latter case makes clear that much of what is relied upon as Supreme Court public trust precedent is largely dicta. Every “public trust” opinion of the Supreme Court is really about title to submerged lands, not the public trust doctrine. The court’s repeated reminder that submerged lands are held sub-ject to public rights of navigation and fishing is historically correct. But the existence of those public rights is neither contingent on public title to the underlying lands nor the basis of public title to those lands. The only historical link between the law of title to submerged lands and the public trust doctrine is that a presumption of the former and the rationale of the latter is a strong public interest in navigation and fishing on navigable waters.

At this point in the American part of the story, one might reasonably ask why, with a few exceptions, the focus has been on Supreme Court cases. If the public trust doctrine is one of state law, as Justice Kennedy asserts in PPL Montana, shouldn’t we be looking at state court decisions? And if the public trust doctrine is neither the foundation for state title to submerged lands nor confined in its application to sub-merged lands owned by the state, why have most of the cases discussed involved title disputes rather than claims of public right? It is true that in all the cases discussed, the courts have had reference to public trust rights, but from Arnold to PPL Montana the matter in dispute has been title.

V. Meanwhile, in the State Courts

Only six state court decisions from a total of four states have been mentioned in the foregoing discussion of Ameri-can public trust law.120 There are, of course, many more, and what would be clear from reading all of them is that, in the words of Professor Sax, “[public trust law] coverage includes, with some variation among states, that aspect of the public domain below the low-water mark on the margin of

119. PPL Mont., LLC, 565 U.S. at 603–04.120. Browne v. Kennedy, 5 H. & J. 195, 208 (Md. 1821); Charlestown v. Cty.

Comm’rs of Middlesex, 44 Mass. 202, 203 (Mass. 1841); Arnold v. Mundy, 6 N.J.L. 1 (N.J. 1821); Gough v. Bell, 22 N.J.L. 441 (N.J. 1850); Ex parte Jen-nings, 6 Cow. 518 (N.Y. 1826); Palmer v. Mulligan, 3 Cal. 307 (N.Y. Sup. Ct. 1805).

the sea and the great lakes, the waters over those lands, and the waters within rivers and streams of any consequence.”121 In terms of the narrow geographic scope of the doctrine as propounded by state courts before and up to the time of his 1969 article, Sax’s summary is accurate, although 19th and early 20th century state courts generally described the affected rivers and streams as navigable-in-fact rather than as “of consequence.”122 Sax’s summary also fails to state that the public rights of use in those narrowly defined waters were (as of 1969) similarly narrow—navigation and fishing (with a few cases including bathing).123

But like some of the courts whose decisions he reports, Sax conflates the public trust doctrine with the law relating to title to submerged lands. Indeed, consistent with his ambitions for the doctrine as a tool of judicially enforced “democratiza-tion” of natural resource policy-making, Sax asserts that the public trust doctrine also covers parklands “especially if they have been donated to the public for specific purposes.”124 Here, again like some of the courts he cites,125 Sax confuses the state’s responsibility as a trustee under the law of trusts with the public trust doctrine’s limits on state management and disposition of state-owned submerged lands. The pub-lic’s interest in and the states’ authorities and responsibilities for the management and disposition of the public domain, including those arising from trust arrangements, are distinct from, though not unrelated to, the public’s rights and the states’ responsibilities under the public trust doctrine. The two state cases cited by Sax as foundational do not make this mistake. In Commonwealth v. Alger, the Massachusetts court did not question the defendant’s title to tidelands while rul-ing that the owner is not therefore entitled to obstruct navi-gation.126 In State v. Cleveland and Pittsburgh Railway, the Ohio court accepted that while a riparian owner was entitled to build on state owned submerged lands, he could not there-fore obstruct navigation.127 Both courts recognized that the public rights of navigation and fishing on navigable waters, guaranteed by the public trust doctrine, exist without regard for ownership of the submerged lands.

121. Sax, supra note 11, at 556.122. After using this language Sax goes on to say the “[s]ometimes the coverage of

the trust depends on a judicial definition of navigability, but that is a rather 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).124. Id.125. Illustrative are Pennsylvania and New York cases in which the state’s trust re-

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. Ct. 2009) (“[W]hen land has been dedicated and accepted for public use, a political subdivision is estopped from interfering with or revoking the grant at 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 of New York, 750 N.E.2d 1050, 1053 (N.Y. 2001) (reaffirming “the principle that parkland is impressed with a public trust, requiring legislative approval 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. of the Univ. of Pa., 96 A. 123, 123–25 (Pa. 1915); Brooklyn Park Comm’rs v. Armstrong, 45 N.Y. 234, 243 (N.Y. 1871).

126. Sax, supra note 11, at 487 (citing Commonwealth v. Alger, 61 Mass. 53, 74–75 (Mass. 1851)).

127. Id. at 487–88 (citing State v. Cleveland & Pittsburgh R.R., 94 Ohio St. 61, 79 (Ohio 1916)).


All of the California and Wisconsin cases Sax offers to illustrate the “contemporary doctrine of the public trust” involve disputes relating to lands beneath navigable water,128 some over the validity of private claims of title to submerged lands.129 While many courts have stated in dicta that public trust lands cannot be alienated,130 Sax correctly concluded that, “there is no general prohibition against disposition of trust properties, even on a large scale.”131 Illinois Central is “one of the very few opinions in which an express convey-ance of trust lands has been held to be beyond the power of the state legislature.”132 Other cited cases do not assess the validity of private grants but rather involve claims that pri-vate uses of submerged lands violate public rights.133 Where the courts find that public rights guaranteed by the public trust doctrine have been infringed, the offending uses are almost invariably ones that obstruct navigation or fishing in navigable waters.134

Although Sax accepted that, with few exceptions, state courts limited their application of the public trust doctrine to circumstances involving threats to public rights of navigation and fishing in tidelands and navigable waters, he began his discussion of the contemporary doctrine with a Massachu-setts case, unrelated to waters of any kind. Sax claimed that Gould v. Greylock Reservation Commission135 was “the first major step in developing the doctrine applicable to changes in the use of lands dedicated to the public interest.”136 Gould was notable for requiring explicit legislative direction to alter public land use, but it had nothing to do with the public trust doctrine. At issue was a proposal to develop a ski area and associated commercial facilities within a legislatively estab-lished, 9,000-acre Greylock Reserve on Mount Greylock.137 The Massachusetts Supreme Court ruled that the lease and management agreement under which the ski area was to be developed exceeded the Tramway Authority’s legislative grant of authority.138 Though seemingly a simple case of stat-

128. Id. at 509–46.129. 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 and conversion to cropland as not for a public purpose); see also Kimball v. MacPherson, 46 Cal. 103, 108 (Cal. 1873) (requiring “very explicit provision” 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) (“An individual may abandon his private property, but a public trustee cannot abandon public property.”); see also Brickell v. Trammell, 77 Fla. 544, 559 (Fla. 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 486.132. 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 to hunt and fish); Forestier v. Johnson, 164 Cal. 24 (Cal. 1912) (barring a private grantee of tidelands from excluding the public’s exercise of its public 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 holdings in which “consummation of the scheme would have materially af-fected the rights of the public to the navigable waters of the lakes . . . .”); see also People v. Cal. Fish Co., 138 P. 79, 83 (Cal. 1913) (holding that the grantee of tidelands takes “the title to the soil . . . subject to the public right of navigation”).

135. 350 Mass. 410 (Mass. 1966).136. Sax, supra note 11, at 492.137. Gould, 350 Mass. at 415−16.138. Id. at 426.

utory interpretation, Sax characterized its significance more broadly. He wrote, “[i]t is . . . a judicial response to a situation in which public powers were being used to achieve a most peculiar purpose.”139 The determinative “peculiar purpose” identified by Sax and the Gould court was the creation of “a commercial venture for private profit” for which the court could “find no express grant . . . of power to permit use of public lands.”140

Such rent seeking is too commonplace to be aptly described as peculiar; more peculiar is Sax’s description of Gould as a public trust doctrine case. The court’s opinion never mentions the ‘public trust doctrine’ or uses the term ‘public trust.’ Indeed, the word ‘trust’ appears only in ref-erence to “any trust agreement issued for the protection of bondholders” in the financing scheme for the proposed development.141 Even distinguished scholar Joe Sax cannot turn a statutory interpretation case into a public trust case simply by describing it as “an important case in the develop-ment of the public trust doctrine.”142 If trust has anything to do with the Gould case, it is the trust that citizens in a demo-cratic republic place in those they elect to represent them. The Gould court was surely correct to demand clear evidence that the people’s interests as declared in the legislature were served by the Tramway Authority, but such oversight of the democratic process has nothing to do with the common-law public trust doctrine.

Sax described the Gould opinion as involving “a simple but ingenious flick of the doctrinal wrist,”143 but it is really Sax who flicks the doctrinal wrist in an effort to create a new future for the public trust doctrine. Although he acknowl-edged “a continued reluctance [by state courts] to recognize the public trust,”144 he saw in it “a considerable opportunity for fruitful judicial intervention . . . .”145 “Perhaps the most striking impression produced by a review of public trust cases in various jurisdictions,” concluded Sax, “is a striking sense of openness which the law provides; there is generally sup-port for whatever decision a court might wish to adopt.”146 A decade later, Sax would recognize that, notwithstanding the openness he perceived in the case law, courts were not tak-ing up the invitation to fruitful intervention.147 The courts, for the most part, were sticking with the common law as it is, rather than as Sax and a growing army of environmental advocates wished it to be.

VI. The Public Trust Doctrine After Sax

The foregoing is as much about what the history of the public trust doctrine was not about, than what it was. What the history of the doctrine actually was could be recounted in a

139. Sax, supra note 11 at 494.140. Id. (quoting Gould v. Greylock Reservation Comm’n, 350 Mass. 410, 426

(1966)).141. Gould, 350 Mass. at 417.142. Sax, supra note 11 at 556.143. Id. at 498.144. Id. at 551.145. Id. at 544.146. Id. at 553.147. Sax, supra note 14, at 185–86.


much shorter article. But because the history of the doctrine has been so often romanticized, if not purposely distorted, and because repetition seems to turn fiction into truth, this article attempts, once again, to set the record straight.

It might be objected that the history discussed is incom-plete—that nearly half a century has passed since the last state case mentioned here was decided, which may be a fair concern. What is the history of the public trust doctrine since Professor Sax invited fruitful judicial intervention and the breaking of historical shackles? Despite the best efforts of Sax’s most imaginative acolytes, the geographic scope of the public trust doctrine remains, with rare exceptions, confined to tidelands and lands riparian to and beneath navigable waters. The public’s rights have remained tied, again with rare exceptions, to navigation, fishing and bathing.

Just about the time Sax published his 1969 article, three state courts decided cases that would join the pantheon of progressive public trust decisions. In 1969, the Oregon Supreme Court ruled in State of Oregon ex rel. Thornton v. Hay that, notwithstanding long-vested private title to the dry sand beaches on the Oregon coast, there is a public right of access to those beaches under the common-law doctrine of custom.148 Although not a public trust case by its own terms, it was very much in the spirit of Sax’s call for judicial creativ-ity given that the Oregon court cited only a single American case as precedent, and that was a very old case from another jurisdiction.149 Two years later, the California Supreme Court ruled similarly with respect to the dry sand beaches of its state. In Marks v. Whitney, the California court relied on the public trust doctrine to describe the public’s right of access as

[p]ublic trust easements . . . traditionally defined in terms of navigation, commerce and fisheries. They have been held to include the right to fish, hunt, bathe, swim, to use for boat-ing and general recreation purposes the navigable waters of the state, and to use the bottom of the navigable waters for anchoring, standing, or other purposes.150

The following year, the Wisconsin Supreme Court ruled in Just v. Marinette County that the public’s rights in the use of submerged lands extended to privately owned wetlands tributary to navigable waters and imposed “a duty [on the state] to eradicate the present pollution and to prevent fur-ther pollution in its navigable waters.”151 While the three cases expand both the geographic reach of the historic public trust doctrine (to dry sand beaches and non-navigable, but tributary wetlands) and the public rights guaranteed by the doctrine (to general recreation and pollution prevention), the doctrine remained firmly immersed in water.

Over the ensuing decades, other state courts embraced the limited geographic and public use expansions reflected in these cases. In 1983, the California Supreme Court ruled,

148. 254 Or. 584, 587 (Or. 1969) (finding that the public had acquired an ease-ment to go onto this land for recreational purposes); id. at 598–99 (affirming the trial court in upholding state custom as a source of law).

149. Id. at 597 (citing Perley v. Langley, 7 N.H. 233 (N.H. 1834)).150. 6 Cal. 3d 251, 259, 2 ELR 20049 (Cal. 1971).151. 56 Wis. 2d 7, 16, 3 ELR 20167 (Wis. 1972).

as the Wisconsin court had in Just, that the public trust doctrine applied to non-navigable tributaries of navigable waters where the public rights in those navigable waters were obstructed.152 The next year, the Montana Supreme Court extended the doctrine’s geographic reach by redefining the test for navigability as all waters that can be used for recre-ation.153 This synergetic link between the expansion of the geographic reach of the doctrine and the public uses pro-tected had been underscored several years earlier by the Ohio Court of Appeals, which observed “that the modern utiliza-tion of our waters by our citizens requires that our courts, in their judicial interpretation of the navigability of such waters, consider their recreational use as well as the more traditional criteria of commercial use.”154

Some state courts have followed the lead of those men-tioned above while others have declined to do so. That is the way of a federal system. But among those state courts that have embraced the New Jersey Supreme Court’s view that “[t]he public trust doctrine, like all common law principles, should not be considered fixed or static, but should be molded and extended to meet changing conditions and needs of the public it was created to benefit,” none have broken the his-torical shackles of the doctrine in the ways that Professor Sax envisioned. The doctrine remains firmly linked to water and limited to commercial and recreational use of those waters.

State court decisions extending the public trust doctrine with respect to either geography or public rights are few and far between. The Just court’s conclusion that the public trust doctrine imposes affirmative duties on the state to regulate water pollution derives from a not uncommon confusion of the state’s responsibilities under the public trust doctrine with its authority under the police power. Indeed the Wis-consin Supreme Court would later correct that error, while also restoring the traditional definition of navigable waters, ruling in Rock-Koshkonong Lake District v. State Department of Natural Resources that because the public trust doctrine applies only to navigable waters, the regulation of pollution on uplands had to have been founded on the police power.155

In a case widely cited by commentators, the California Court of Appeals stated “that it has long been recognized that wildlife are protected by the public trust doctrine.”156 In support of this claim, the court quoted from an article of mine, in which I wrote: “Because wildlife are generally transient and not easily confined, through the centuries and across societies they have been held to belong to no one and therefore to belong to everyone in common.”157 Contrary to the California court’s conclusion, this did not mean that wildlife are subject to the public trust, but rather that wildlife are res nullius and therefore subject to ownership by capture. Although the English Crown, like many monarchs, often

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).154. State ex rel. Brown v. Newport Concrete Co., 44 Ohio App. 2d 121, 127

(Ohio Ct. App. 1975).155. 350 Wis. 2d 45, 80–81 (Wis. 2013).156. Ctr. for Biological Diversity, Inc. v. FPL Grp., Inc., 166 Cal. App. 4th 1349,

1361 (Cal. Ct. App. 2008) (as modified on denial of reh’g (Oct. 9, 2008)).157. Id. at 1361–62 (quoting Huffman, supra note 16, at 86.).


claimed ownership for themselves, the state’s authority with respect to wildlife in American law has included the regula-tion of capture and the protection of habitat pursuant to the states’ police powers. It is those police power authorities that the California court in Center for Biological Diversity v. FPL says the state has a duty to perform. Despite the expansive public trust language, the court looks to statutes for defini-tion of the state’s responsibilities and acknowledges the sepa-ration of powers obstacles to actually ordering state agencies to take particular actions beyond complying with established process.158 In a subsequent case, the California Court of Appeals cited Center for Biological Diversity v. Florida Power and Light for the proposition that the Department of Fish and Wildlife must “take its public trust responsibilities into account in providing its review and comment,”159 leading to the conclusion in yet another court of appeals case that there is “no distinction between compliance with the act and the public trust doctrine.”160 But this reduces the public trust doctrine as applied to wildlife to nothing more than a sort of special appeal for exercise of the police power in pursuit of favored ends.

Because reliance on trust-like language in statutes has the effect of merging the public trust doctrine with the police power, advocates of an expanded public trust doctrine have also looked to environmental rights amendments in a few state constitutions when raising separation of powers obsta-cles for the courts.161 In a recent decision, the Pennsylvania Supreme Court ruled, however, “that Pennsylvania has no established public trust principles applicable to Section 27 [the environmental rights amendment to the Pennsylvania Constitution].”162 Rather, the court looked to the law of trusts in finding that royalties from state oil and gas leases of “public natural resources,” of which the state is declared a “trustee” by Section 27,163 must be “used for conservation and maintenance purposes” and not deposited in the state’s general fund. In dissent, Justice Max Baer acknowledged that “[u]ntil the late 1960s, the . . . [public trust doctrine] applied primarily to navigable waterways,”164 but he urged that “the terminology used by the drafters of Section 27

158. 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 only would threaten duplication of effort and inconsistency of results, but would require courts to perform an ongoing regulatory role as technology evolves and conditions change.

Ctr. for Biological Diversity, 166 Cal. App. 4th at 1371.159. Ctr. for Biological Diversity v. Cal. Dep’t of Forestry & Fire Prot., 232 Cal.

App. 4th 931, 953 (Cal. Ct. App. 2014).160. Citizens for E. Shore Parks v. Cal. State Lands Comm’n, 202 Cal. App. 4th

549, 577 (Cal. Ct. App. 2011) (as modified on denial of reh’g (Jan. 27, 2012)).161. See, e.g., Montana, Rhode Island, Pennsylvania.162. Pa. Envtl. Def. Found. v. Commonwealth, 161 A.3d 911, 933 n.26, 47 ELR

20081 (Pa. 2017).163. “The people have a right to clean air, pure water, and to the preservation of the

natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.” Pa. Const. art. I, § 27.

164. See Pa. Envtl. Def. Found., 161 A.3d at 943.

evokes the public trust doctrine.”165 The objective of those who drafted Section 27, he suggested, was for Pennsylvania to join “a movement . . . to expand the previously limited doctrine to encompass natural resources generally.”166 As of last year, Pennsylvania had not done so.

Other states with constitutional guarantees of envi-ronmental rights include Hawaii, Illinois, Massachusetts, Montana, and Rhode Island. Although it has been urged that these provisions, like Pennsylvania’s Article I, Section 27, constitutionalize the public trust doctrine, the states’ courts have not agreed. Article XI of the Illinois Constitu-tion provides that “the duty of each person is to provide and maintain a healthful environment for the benefit of this and future generations” and empowers private citizens to “enforce this right against any party, governmental or private.”167 The Illinois Supreme Court, making no mention of the public trust doctrine, has ruled that Article XI “does not create any new causes of action, but rather, does away with the ‘special injury’ requirement typically employed in environmental nuisance cases.”168 Article II, Section 3 of the Montana Con-stitution enumerates “certain inalienable rights . . . [includ-ing] ‘the right to a clean and healthful environment . . .’”169 After stating that “[t]he public trust doctrine in Montana’s Constitution grants public ownership in water,” the Mon-tana Supreme Court found unconstitutional provisions of a stream access law that violated the property rights of riparian landowners, rights also enumerated as inalienable in Article II, Section 3.170 As Justice Jean Turnage remarked in concur-rence, “it is not . . . necessary to resort to the theory of Public Trust Doctrine to find a right to the use of surface waters in this State . . . .” That right, stated Turnage, is recognized “in the express language of Article IX, Section 3(3) of the Montana Constitution, which provides: ‘All surface, under-ground, flood and atmospheric waters within the boundar-ies of the state are the property of the state for the use of its people and subject to appropriation for beneficial uses as provided by law.’”171 Justice Turnage’s point was that, like the controlling statute in the California case above, the public 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-setts Constitution imposes public trust duties preventing a

165. See id. at 942.166. See id. at 943.167. Ill. Const., art. XI.168. See City of Elgin v. Cty. of Cook, 169 Ill. 2d 53, 85 (Ill. 1995); see also Citizens

Opposing Pollution v. ExxonMobil Coal U.S.A., 962 N.E.2d 956, 967 (Ill. 2012).

169. Mont. Const., art. II, § 3.170. See Galt v. State, 731 P.2d 912, 915, 916 (Mont. 1987).171. See id. at 916.172.

The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the peo-ple in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose . . . Lands and easements taken or acquired for such purposes shall not be used for other pur-poses or otherwise disposed of except by laws enacted by a two thirds vote, taken by yeas and nays, of each branch of the general court.


local government from conveying property acquired by the town as a tax forfeiture, the Massachusetts Land Court relied on the Supreme Judicial Court’s earlier ruling that Article 97 only limited alienation of public property “specifically designated for conservation.”173 “The public trust doctrine,” said the Land Court, “[is] expressed as the government’s obli-gation to protect the public’s interest in . . . the Common-wealth’s waterways [sic]. Under the public trust doctrine, the Commonwealth holds tidelands [sic] in trust for traditional public uses of fishing, fowling, and navigation.”174 In other words, the Massachusetts public trust doctrine conforms to the historic common law, unaffected by Article 97. The same can be said of Article I, Section 17, of the Rhode Island Constitution.175 “Under the public trust doctrine,” wrote the Rhode Island Supreme Court in 1999, “the state holds title to all land below the high water mark in a proprietary capac-ity for the benefit of the public.”176 “The state’s authority over that land,” wrote the court, is limited by Article 1, Section 17, of the Rhode Island Constitution, which provides that the people shall continue to enjoy “‘the privileges of the shore,’ including the right to fish, to swim, and to pass along the shore.” Thus, by its own terms, “rights . . . to which they [the people] have been heretofore entitled” and as interpreted by the Rhode Island Supreme Court, Article I, Section 17, only confirms public rights in the use of state waters always held by the people.

That leaves the Hawaii Constitution as the best hope of those who would rely upon state constitutions for an expanded public trust doctrine. Article XI, Section 9 of the Hawaii Constitution provides:

Each person has the right to a clean and healthful environ-ment, as defined by laws relating to environmental quality, including control of pollution and conservation, protec-tion and enhancement of natural resources. Any person may enforce this right against any party, public or private,

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 1569480, at *4 (Mass. Land Ct. Apr. 17, 2014) (citing Hanson v. Lindsey, 444 Mass. 502 (Mass. 2005).

174. Id. at 6.175.

The people shall continue to enjoy and freely exercise all the rights of fishery, and the privileges of the shore, to which they have been heretofore entitled under the charter and usages of this state, including but not limited to fishing from the shore, the gathering of seaweed, leaving the shore to swim in the sea and passage along the shore; and they shall be secure in their rights to the use and enjoyment of the 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 other natural resources of the state, and to adopt all means necessary and proper by law to protect the natural environment of the people of the state by providing adequate resource planning for the control and regulation for the use of the natural resources of the state and for the preservation, regeneration and restoration of the natural environment of the state.

R.I. Const., art. 1, § 17.176. Town of Warren v. Thornton-Whitehouse, 740 A.2d 1255, 1259–60 (R.I.

1999) (citing Greater Providence Chamber of Commerce v. State, 657 A.2d 1038, 1041 (R.I. 1995); Nugent ex rel. Collins v. Vallone, 91 R.I. 145, 152, 161 (R.I. 1960); Bailey v. Burges, 11 R.I. 330, 331 (R.I. 1876)).

through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law.

While the Hawaii Supreme Court has held that this provi-sion is self-executing and therefore a basis for private actions to enforce laws intended to protect the environment,177 it has effectively precluded linking it to the public trust doc-trine’s rights of use in trust resources by allowing that any substantive rights are to be determined by the legislature.178 The court has also limited private rights of actions to those in which the plaintiff has a “personal stake” as distinct from “general constitutional and statutory rights . . . [held] in common with the general public.”179

The court has, however, found that sections 1 and 7 of Article XI import the public trust doctrine into Hawaiian Constitution law. Section 1 provides:

For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii’s natural beauty and all natural resources, includ-ing land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in fur-therance of the self-sufficiency of the State. All public natu-ral resources are held in trust by the State for the benefit of the people.

Section 7 provides:

The State has an obligation to protect, control and regu-late the use of Hawaii’s water resources for the benefit of its people. The legislature shall provide for a water resources agency which, as provided by law, shall set overall water conservation, quality and use polices; define beneficial and reasonable uses; protect ground and surface water resources, watersheds and natural stream environments; establish crite-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.

In In re Water Use Permit Applications, the Hawaii Supreme Court held “that Article XI, Section 1 and Article XI, Section 7 adopt the public trust doctrine as a fundamen-tal principle of constitutional law in Hawaii.”180 Given the facts in the case then before the court, the significance of this holding in terms of the scope of the public trust doctrine in Hawaii is unclear. Under existing Hawaii law, Sections 1 and 7 were not essential to the court’s ruling. The public trust doctrine was long recognized181 and its application to trib-

177. Cty. of Haw. v. Ala Loop Homeowners, 235 P.3d 1103, 1129 (Haw. 2010).178. “[Section 9] has both a substantive and a procedural component. First, it rec-

ognizes a substantive right ‘to a clean and healthful environment,’ with the content of that right to be established not by judicial decisions but rather “as defined by laws relating to environmental quality.” Second, it provides for the enforcement of that right by “any person” against “any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law.” Id. at 409.

179. Bremner v. City & Cty. of Honolulu, 96 Haw. 134, 142 (Haw. Ct. App. 2001).

180. 9 P.3d 409, 443–44 (Haw. 2000).181. King v. Oahu Ry. & Land Co., 11 Haw. 717, 725 (Haw. 1899).


utary groundwaters was consistent with an earlier supreme court ruling, “that where surface water and groundwater can be demonstrated to be physically interrelated as parts of a single system, established surface water rights may be pro-tected against diversions that injure those rights, whether the diversion involves surface water or groundwater.”182 Ground-water diversions that impacted public rights in surface waters would be as much a violation of the public trust as diversion of surface waters with the same effect. In addition to thus expanding the geographic (hydrologic) reach of the public trust doctrine, the Hawaii court expanded the uses to which the public has a right in public trust waters to include “main-tenance of waters in their natural state.”183

Notwithstanding that the court’s ruling in In re Water Use Permit Application did not stray from the water-bound roots of the public trust doctrine, the court stated as a holding “that article XI, Section 1 and Article XI, Section 730 adopt the public trust doctrine as a fundamental principle of con-stitutional law in Hawaii.”184 While Section 7 speaks only to water resources, Section 1 addresses Hawaiian governments’ responsibilities with respect to “natural beauty and all natu-ral resources, including land, water, air, minerals and energy sources.” If the Hawaii public trust doctrine applies to all of that, the liberation of the doctrine from its historical shackles will exceed Professor Sax’s wildest dreams. But both Sections 1 and 7 complicate the matter by recognizing the legitimacy of resource use and development. Section 1 requires Hawaii’s governments to “promote the development and utilization of these resources in a manner consistent with their conserva-tion and in furtherance of the self-sufficiency of the State.” Section 7 mandates the creation of a water resources agency to “set overall water conservation, quality and use policies.” “The state water resources trust,” noted the court, “thus embodies a dual mandate of (1) protection and (2) maximum reasonable and beneficial.”185 In a lengthy discourse the court makes a valiant effort to establish, in the absence of any sup-porting language in either sections, that mandate 1 (address-ing protection) trumps mandate 2 (addressing use).

That is where reading the public trust doctrine into Sec-tions 1 and 7 comes in handy. The court acknowledges that making water policy in compliance with Section 7 requires government to “weigh competing public and private water uses on a case-by-case basis, according to any appropriate standards provided by law.”186 This sounds like the sort of balancing governments must do all the time in making pol-icy, but because this task is constitutionally mandated, gov-ernmental compliance is subject to judicial review. How will a court determine whether a government’s policy decisions comply with Sections 1 and 7? By “reading the constitution to establish a ‘rule of reasonableness’ requiring the balancing of environmental costs and benefits against economic, social,

182. Reppun v. Bd. of Water Supply, 65 Haw. 531, 555 (Haw. 1982).183. In re Water Use Permit Applications, 9 P.3d at 448.184. Id. at 132.185. Id. at 139.186. Id. at 142.

and other factors.”187 Taking into account “the constitutional requirements of ‘protection’ and ‘conservation’” but not the constitutional requirements of “beneficial and reasonable” use, “the historical and continuing understanding of the trust as a guarantee of public rights,” and “the ‘zero-sum’ game between competing water uses demands,” governments (and presumably the courts in reviewing what governmental actions), should “bring a presumption in favor of public use, access, and enjoyment.”188 In terms more familiar to judicial review, the public trust content of Section 7, and presumably Section 1, “prescribes a ‘higher level of scrutiny’ for private commercial uses . . . .”189 Just to make completely clear that the balancing inherent in natural resource policy-making will rest finally with the courts, the Court notes that because “[t]he public trust . . . is a state constitutional doctrine . . . , [a]s with other state constitutional guarantees, the ultimate authority to interpret and defend the public trust in Hawai’i rests with the courts of this state.”190

VII. Why Getting the History Right Matters

Over the half century since Professor Sax first urged that the public trust doctrine could be a tool for “effective judi-cial intervention,” the doctrine has evolved in directions Sax would praise. But it has not been transformed into the mighty instrument of environmental reform he envisaged. Perhaps, that is yet to come. Certainly, there is no short-age of advocates for the realization of Sax’s vision. That the courts have only occasionally been persuaded to expand the doctrine’s historic reach is testimony to the generally strong commitment of most judges to the rule of law and the separa-tion of powers.

Proponents of an expanded public trust doctrine and those courts that have endorsed expansions over the past sev-eral decades appear to agree that history matters to the rule of law. They seem to find it necessary, after all, to reference Justinian, Magna Carta, Illinois Central, and other prece-dents. Presumably, they recognize that unless one is prepared to forswear the rule of law and embrace judicial governance, there is really no choice but to rely on historical rules and principles. But if the reason for referencing history is to estab-lish that judicial decisions are based on preexisting law and not policy or personal preferences of advocates and judges, it is essential that we review the history accurately. Otherwise, we are only pretending to adhere to the rule of law.

As noted above,191 Professor Sax acknowledged in his 1980 article that the historical shackles of the doctrine were con-straining the achievement of his vision for the public trust doctrine as an all-purpose tool in environmental litigation. But he knew that would be a problem from the beginning. 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 1152, 14 ELR 20790 (La. 1984).

188. Id. at 142.189. Id.190. Id. at 143.191. See discussion supra The Public Trust Doctrine After Sax.


from what happened a few centuries ago in England.”192 Sax wrote for a second time on the public trust doctrine because the courts had not taken up his invitation to “effective judi-cial intervention” expressed in his 1980 article. Like Professor Wood’s present-day call for judicial intervention in the name of an imagined “atmospheric trust doctrine,”193 Sax was urg-ing the courts to intervene not because the law required it, but because the other two branches of government had failed to take what he perceived to be necessary actions.

Both the rule of law and the constitutional separation of powers dictate against such judicial law making. Defenders of judicial expansion of the historic public trust doctrine con-tend that common-law courts have always had authority to adapt the law to changed circumstances.194 For example, as noted above, American courts changed the definition of nav-igable waters from waters affected by the tides to waters that are navigable-in-fact.195 But that adaptation allowed for the public trust doctrine to serve the same ends on the expansive North American continent as it served in Great Britain. The adapted rule would more likely conform to, rather than con-flict with, the reasonable expectations of both owners of sub-merged lands those engaged in commerce and fishing. This is a far cry from what, for example, the Montana Court did in redefining navigable waters to include those susceptible to recreation. By granting access to thousands of miles of water-ways from which the public previously could be excluded at the discretion of property owners, the Montana Court upset the reasonable expectations of those property owners while granting welcome, but unexpected, public access. A greater leap would be a judicial ruling that a public right to be free from climate change is merely an adaptation of the public trust right to fish and navigate in navigable waters.

It may be true that climate change is the most pressing issue of our time. It is certainly true that the public has a strong interest in the conservation and wise use of the planet’s finite resources. But as Justice Holmes wrote nearly a century ago in Pennsylvania Coal v. Mahon, we cannot forget “that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the consti-tutional way . . . .”196 The constitutional way, under both the federal and state constitutions, is for the legislature to make the law, the executive to implement the law, and the courts to adjudicate disputes and enforce the law. All of this is to be done in conformance with due process, at the heart of which is allegiance to the rule of law. Neither imagined nor real neces-sity amends the Constitution or justifies the rule of judges.

192. See Sax, supra note 11, at 485.193. 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 was created to benefit.” Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N.J. 296, 309, 2 ELR 20519 (N.J. 1972).

195. See discussion supra Early American Law.196. 260 U.S. 393, 416 (1922).

Judge Ann Aiken concludes her opinion in Juliana v. United States with the oft-repeated declaration by Chief Jus-tice John Marshall in Marbury v. Madison that it is “emphati-cally the province and duty of the judicial department to say what the law is.”197 But no serious student of American con-stitutional law would understand Chief Justice Marshall’s statement to mean judges have the power to say what the law will be. Rather, Chief Justice Marshall’s point, and the basis for the Supreme Court’s willingness to rule on Marbury’s claim, was that when faced with an alleged conflict between legislative action and the Constitution, it is the responsibil-ity of the courts to determine whether or not the challenged action violates the Constitution—ergo, to say what the law is. Courts are necessarily confined to examination of authori-tative legal sources in determining what the law is—namely constitutions, statutes, legal regulations, and precedent, or in other words, history.

The best argument proponents of an expanded pub-lic trust doctrine have is that we face serious environmen-tal challenges, those challenges have not been adequately addressed by the legislative or executive branches of govern-ment, and the courts must therefore intervene. Professor Sax made this argument in his foundational 1969 article, as has Professor Wood in making the case for her atmospheric trust theory.198 In an article about Juliana, Professor Wood called climate change a threat of “mind-blowing urgency” requir-ing judicial intervention because “[t]he international treaty process will probably fail, the legislature will not act, and the president will do too little too late.”199 However, in a rule of law system with constitutional separation of powers, that argument is not good enough. The history of the public trust doctrine confirms that the public has the right to fish and navigate in navigable waters without regard for ownership of the submerged lands. It is not the province and duty of the judicial department to rewrite history in the name of estab-lishing new public rights.

It is the case, as evidenced in the California, Montana, Ore-gon, and Wisconsin judicial rulings cited above, that judicial modifications of the traditional common-law public trust doc-trine become precedent and law on which future courts can and will rely. Indeed, Juliana is part of a nationwide barrage of law-suits in search of judges willing to make new law in the name of urgency or necessity. If after the appeals are exhausted, new, judicially created, public rights become the law of the land, they will have arisen not from the wisdom of Justinian, but from the imaginations of activist judges. The history of the doctrine will not support such blatant law making, and the rule of law will have suffered.

197. 217 F. Supp. 3d 1224, 1263, 46 ELR 20175 (quoting Marbury v. Madison, 5 U.S. 137, 177 (1803)).

198. See Sax, supra note 11.199. Mary Democker, Natural Law, U. of Or.: Or. Q. (Aug. 1, 2014, 12:00 AM),

https://around.uoregon.edu/oq/natural-law [https://perma.cc/6AXE-A852].


The Anthropocene era has triggered a recent wave of judicial and legislative developments in the United States and abroad that seek enhanced government

stewardship responsibilities of the atmosphere and natural resources, and legal protections for future generations. The recent case, Juliana v. United States, attempts to secure these protections for future generations in the United States.1 This promising and hopeful case is attracting national and inter-national attention, and has been characterized as “no ordi-nary lawsuit”2 and the “trial of the century.”3 This article traces the developments that led to this historic moment in U.S. environmental law and discusses the opportunity that this case may present for potential recognition of a constitu-tional right to a stable climate system in the United States.

Inherited from English common law, the public trust doctrine4 is the earliest example of environmental rights-based thinking in U.S. environmental law jurisprudence. The concept of government stewardship of resources—and corresponding rights of the people to enjoyment and protec-tion of resources—can serve as the foundation for a broader

1. 217 F. Supp. 3d 1224, 46 ELR 20175 (D. Or. 2016).2. Id. at 1234 (“This is no ordinary lawsuit.”). See also Michael C. Blumm &

Mary C. Wood, “No Ordinary Lawsuit”: Climate Change, Due Process, and the Public Trust Doctrine, 67 Am. U. L. Rev. 1 (2017).

3. See Karen Hollweg, Trial of the Century: Juliana v. U.S. Trial Set for October 29, 2018, N. Am. Ass’n Envtl. Educ. (Apr. 17, 2018), https://naaee.org/eepro/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 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 Conservative Reconstruction & Defense, 15 SE Envtl. L.J. 47, 67 (2006). The public interests at the foundation of the public trust doctrine were naviga-tion, commerce, and fishing, but those interests later expanded to include other public values. See id. at 67−70 (recreation, environmental protection, aesthetics); Gerald Torres & Nathan Bellinger, The Public Trust Doctrine: The Law’s DNA, 4 Wake Forest J.L. & Pol’y 281, 297 (2014) (groundwa-ter, wetlands).

rights-based jurisprudence in U.S. environmental law. The atmospheric trust litigation theory advanced in the Juliana case builds on this public trust doctrine foundation and pro-vides an opportunity to develop federal constitutional envi-ronmental rights and responsibilities in the United States. Regardless of the outcome of the Juliana litigation, Juliana will continue to build public awareness and lay a strong con-ceptual foundation for climate justice initiatives in federal and state constitutional and legislative contexts.

Part I of this Article discusses the environmental justice movement and how it served as a platform for climate justice litigation, which in turn laid a common-law foundation for atmospheric trust litigation. Part II examines the evolution of atmospheric trust litigation (“ATL”) and discusses how it represents an ambitious but appropriate expansion of the traditional foundations of the public trust doctrine. Part III analyzes how the Juliana case can secure a right to a stable climate system because such a right, like the right to marry,5 serves as a foundation for the enjoyment of other constitu-tionally protected rights under the Due Process Clause.

I. Evolution of the Rights-Based Approach to U.S. Environmental Law

Environmental law in the United States began as a cru-sade to protect natural resources. Federal laws mandat-ing government stewardship of resources in national parks and wilderness area were enacted to protect those resources for their intrinsic value and to ensure that humans respect and appreciate nature’s splendor in these areas.6 This pres-ervationist paradigm shifted with the advent of the federal pollution control laws of the 1970s and their “command-and-control”7regulation of contamination of air, water, land, and

5. For a discussion of Judge Ann Aiken’s reasoning in which she analogizes the right to a stable climate system to the right to marry as comparable founda-tional fundamental rights, see infra Part III.

6. See, e.g., National Park Service Organic Act, 16 U.S.C. §§ 1-460bbbb-7 (2018); Wilderness Act of 1964, 16 U.S.C. §§ 1131−1136 (2018).

7. Command-and-control regulation refers to federal or state government regula-tors establishing standards to which the regulated community must adhere such as an emissions limitation or a performance requirement. Government

Atmospheric Trust Litigation: Foundation for a Constitutional

Right to a Stable Climate System?Randall S. Abate∗

* Randall S. Abate is the Rechnitz Family/Urban Coast Institute Endowed Chair in Marine and Environmental Law and Policy and a Professor in the Department of Political Science and Sociology at Monmouth University in West Long Branch, New Jersey.


other human health-based objectives.8 Rather than focusing on the intrinsic value of resources, the regulatory imperative to protect the environment shifted in these laws to address the ways in which human health had become imperiled from the rise in pollution in the industrial age.

Until recently, rights-based thinking was confined to the social justice domain of American jurisprudence, whereas environmental law was governed almost exclusively through “command-and-control” regulation.9 Although the com-mand-and-control regime was highly successful in cleaning up the air, water, and land from the scourge of pollution that inspired the enactment of these laws, a glaring gap in these laws started to surface in the late 1980s. Human health was not being protected in an evenhanded manner in how these laws were enforced and in the degree to which environmen-tal contamination problems manifested in communities throughout the nation. Minority and low-income commu-nities were bearing a disproportionate share of the environ-mental contamination burden in the United States, and there was no mechanism in these federal environmental laws to address that inequity. Environmental protection was devel-oping a human face. The environmental justice movement was born.10

Environmental justice litigation ensued, seeking to inject a civil rights-based theory throughout the nation by seeking remedies for how contamination burdens were dispropor-tionately burdening minority and low-income communities. These early efforts to apply Fourteenth Amendment protec-tion to these communities ultimately failed in the federal courts,11 resulting in a devastating setback for the environ-

enforcement actions, as well as citizen suits under several federal environmental laws, can seek to compel compliance with the standards that have been violated and can seek penalties for the noncompliance. OpenStax, 12.2 Command-and-Control Regulation, Principles of Economics (2017), https://opentextbc.ca/principlesofeconomics/chapter/12-2-command-and-control-regulation/ [https://perma.cc/8NSL-5A57].

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 (RCRA), 42 U.S.C. §§ 6901−6992k, ELR Stat. RCRA §§ 1001−11011 (2018); Toxic Substances Control Act (TCSA), 15 U.S.C. §§ 2601−2692, ELR Stat. TCSA §§ 2−412 (2018).

9. Openstax, supra note 7.10. “Environmental Justice is rooted in several social movements within the United

States, including the Civil Rights Movement of the 1950s, 1960s, and 1970s; the Anti-Toxics Movement; the struggles of indigenous communities; the La-bor Movement; and the traditional environmental movement.” Elizabeth Ann Kronk Warner & Randall S. Abate, International and Domestic Law Dimensions of Climate Justice for Arctic Indigenous Peoples, 43 Ottawa L.J. 113, 120−21 (2013) (internal citations omitted). For a discussion of the background of the environmental justice movement, see generally Robert D. Bullard: Dump-ing in Dixie: Race, Class, and Environmental Quality (3d ed. 2008); Luke W. Cole & Sheila R. Foster, From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement (2001). For a comprehensive evaluation of the legal framework for environmental justice claims, see generally Barry E. Hill, Environmental Justice: Legal Theory and Practice (4th ed. 2018); Michael B. Gerrard & Sheila R. Foster eds., The Law of Environmental Justice: Theories and Proce-dures to Address Disproportionate Risks (2d ed. 2009).

11. Two cases closed the door on this potential avenue of relief for environmental justice litigants. See Alexander v. Sandoval, 532 U.S. 275 (2001) (holding that Title VI of the Civil Rights Act does not authorize a private right of action alleging evidence of disparate impact); S. Camden Citizens in Action v. N.J. Dep’t of Envtl. Prot., 274 F.3d 771, 32 ELR 20425 (3d Cir. 2001) (holding

mental justice movement.12 However, these advocates had just begun to fight. The effort to constitutionalize environ-mental rights was an important first step in what would be revisited and conveyed in a more compelling manner under the Due Process Clause just 15 years later in the Juliana case. The constitutional foundation was different (Due Process Clause rather than the Equal Protection Clause) and the plaintiffs were different (youth and future generations, rather than minority and low-income communities), but the under-lying theory was the same: the U.S. Constitution should be interpreted to protect environmental human rights through some mechanism and to some degree.13

Just a few years after the disappointing setbacks in 2001, environmental justice thinking was embraced to help pro-pel the emerging climate justice movement. Two significant developments in this domain were the Inuit petition14 and the Kivalina15 case. The Inuit petition before the Inter-Amer-ican Commission on Human Rights in 2005 can be credited with establishing the connection between climate change impacts and possible human rights violations.16 Alleging a broad spectrum of human rights violations—ranging from the concrete (rights to property, health, food, and life) to the more conceptual (rights to culture and rights to self-deter-mination)—the Inuit characterized the collective impacts of climate change on all of these rights as a deprivation of their collective “right to be cold.”17

Perhaps the most valuable lesson from the environmen-tal justice movement that continues to be relevant today is that the command-and-control approach to environ-mental problems cannot be the exclusive response to envi-ronmental degradation. Common-law and constitutional law theories that address the human rights dimensions of environmental problems need to be included as a weapon in the environmental lawyer’s arsenal. During the peak of the command-and-control era in the 1970s and 1980s, the common-law domain was not entirely supplanted; however, common-law theories in environmental litigation were used

that evidence of intentional discrimination is required in private right of action under Title VI).

12. See generally John Arthur Laufer, Alexander v. Sandoval and Its Implications for Disparate Impact Regimes, 102 Colum. L. Rev. 1613 (2002); Brendan Cody, South Camden Citizens in Action: Siting Decisions, Disparate Impact Discrimina-tion, and Section 1983, 29 Ecology L.Q. 231 (2002).

13. A possible federal constitutional amendment addressing environmental pro-tection has been considered in the United States and has been the subject of debate for decades. See generally Robin Kundis Craig, Should There Be a Constitutional Right to a Clean/Healthy Environment?, 34 ELR 11013 (Dec. 2004); J.B. Ruhl, The Metrics of Constitutional Amendments: And Why Proposed Environmental Quality Amendments Don’t Measure Up, 74 Notre Dame L. Rev. 245 (1999); Richard O. Brooks, A Constitutional Right to a Healthful Environment, 16 Vt. L. Rev. 1063 (1992).

14. Inuit Circumpolar Conference, Petition to the Inter-American Commission on Human Rights Seeking Relief From Violations Resulting From Global Warming Caused by Acts and Omissions of the United States, Dec. 7, 2005, http://blogs2. law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non- us-case-documents/2005/20051208_na_petition.pdf.

15. Native Vill. of Kivalina v. ExxonMobil Corp. (Kivalina II), 696 F.3d 849, 42 ELR 20195 (9th Cir. 2012), cert. denied, 133 S. Ct. 2390 (2013).

16. Petition to the Inter-American Commission, supra note 14.17. See generally Sheila Watt-Cloutier, The Right to Be Cold: One Woman’s

Story of Protecting Her Culture, The Arctic and the Whole Planet (2016) (exploring the parallels between the melting Arctic and the loss of the Inuit’s culture).

Summer 2019 ATMOSPHERIC TRUST LITIGATION 35

intermittently at best, and in limited circumstances.18 That approach provided a foundation for a creative combination of public nuisance doctrine and the federal common law of interstate pollution in a line of climate change litigation cases in U.S. courts.19

The Kivalina case was the best opportunity to date for the climate justice movement to gain traction in the U.S. court system. A Native Alaskan Village of 400 residents sued the 24 leading multinational oil and energy companies seeking to recover the estimated $400 million necessary to relocate the village 10 miles inland.20 It was predicted that the village would have to evacuate its existing location due to the threat of inundation from sea-level rise.21 The case was dismissed on standing and political question grounds in the U.S. Dis-trict Court for the Northern District of California.22 The U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal, and the U.S. Supreme Court subsequently denied certiorari in the case.23 For purposes of advancing the climate justice movement, however, both the Inuit petition and the Kivalina case can best be characterized as “losing the battle, but winning the war.” The best evidence of the success of these creative climate justice litigation efforts is that the use of these theories to seek governmental and private-sector accountability for climate change impacts continues to this day in the United States and abroad.

The most recent—and potentially most promising—development in this line of public nuisance climate justice litigation is the efforts of cities in California seeking to rely on state public nuisance law to recover for climate change impacts in their cities. The federal displacement doctrine from American Electric Power Co. v. Connecticut applies only to public nuisance claims under federal common law.24 This case left the door open for potential recovery on public nui-sance claims under state law, which in now being tested in the courts.

In the first of these cases, County of Santa Cruz v. Chevron Corp., the city and county of Santa Cruz, California, sued 29 fossil fuel companies for a wide range of climate change impacts the city and county were experiencing, including

18. See e.g., Bruce Yandle, The Common Law and the Environment in the Courts: Discussion of Code Law and Common Law, 58 Case W. Res. L. Rev. 647, 648–54 (2008).

19. The Kivalina case built on a progression of cases in the federal courts relying on public nuisance and the federal common law of interstate pollution to seek redress for climate change mitigation and adaption (American Elec. Power Co. v. Connecticut, California v. General Motors Corp., and Comer v. Murphy Oil USA) that laid a foundation for the Kivalina theory to proceed. For a detailed discussion of this line of cases, see generally Randall S. Abate, Public Nuisance Suits for the Climate Justice Movement: The Right Thing and the Right Time, 85 Wash. L. Rev. 197 (2010). For a compelling and heart-wrenching account of the legal and cultural context of the Kivalina litigation, see generally Chris-tine Shearer, Kivalina: A Climate Change Story (2011).

20. Native Vill. of Kivalina v. ExxonMobil Corp. (Kivalina I), 663 F. Supp. 2d 863, 869, 39 ELR 20236 (N.D. Cal. 2009).

21. Kivalina II, 696 F.3d at 853 n.2 (citing U.S. Gov’t Accountability Office, GAO 04−142, Alaska Native Villages: Most Are Affected by Flooding and Erosion, but Few Qualify for Federal Assistance 30, 32 (2003)).

22. Kivalina I, 663 F. Supp. 2d at 868.23. 133 S. Ct. 2390 (2013).24. Tracy D. Hester, A New Front Blowing in: State Law and the Future of Climate

Change Public Nuisance Litigation, 31 Stan. Envtl. L.J. 49, 52 (2012) (citing American Elec. Power v. Connecticut, 131 S. Ct. 2527, 41 ELR 20210 (2011)).

sea-level rise, more frequent and severe storms, drought, and heatwaves.25 In their complaint, filed in December 2017, the plaintiffs sought compensatory and punitive damages, abatement of the nuisance, and disgorgement of profits for climate change-related injuries from defendants’ production and promotion of fossil fuel products, concealment of known hazards of those products, and championing of anti-science campaigns.26 The plaintiffs relied on several state common-law theories to advance their claims, including public and private nuisance, strict liability based on design defect and failure to warn, and trespass. One month after the city and county of Santa Cruz filed against Chevron Corp., the city of Richmond, California, also filed suit against Chevron Corp., asserting the same legal theories.27

This progression of retooling and refining climate justice litigation theory reflects a long, successful history of creativ-ity and persistence on the part of environmental lawyers in seeking recovery for environmental damage under common-law theories. The success of environmental litigation against the asbestos, lead paint, and tobacco industries, and federal and state legislation regulating these activities that followed shortly thereafter, offers compelling and inspiring examples of the creativity and persistence of the environmental bar. Climate justice litigation appears to be the next success in this storied tradition. The only question remaining is how soon that success will materialize.

II. From Public Trust to Atmospheric Trust Litigation

In a related but separate theater in the battle for climate justice, the atmospheric trust litigation (ATL) theory was launched in the wake of the Kivalina litigation. In a bold and ambitious step, the environmental nongovernmental organi-zation, Our Children’s Trust, launched cases throughout the nation with youth plaintiffs leading the charge.28 The ATL theory sought to extend the public trust to compel federal and state governmental entities to protect the atmosphere for

25. Complaint at 2, County of Santa Cruz v. Chevron Corp., No. 17CV03242 (Cal. Super. Ct., filed Dec. 20, 2017), http://blogs2.law.columbia.edu/cli-mate-change-litigation/wp-content/uploads/sites/16/case-documents/2017/ 20171220_docket-17CV03242-_complaint.pdf.

26. Id. at 123.27. Complaint, City of Richmond v. Chevron Corp., No. C18-00055 (Cal. Super.

Ct., filed Jan. 22, 2018), http://blogs2.law.columbia.edu/climate-change-lit-igation/wp-content/uploads/sites/16/case-documents/2018/20180122_dock-et-C18-00055_complaint.pdf. On July 18, 2018, the U.S. District Court for the Northern District of California granted the city of Richmond’s and the city and county of Santa Cruz’s motion to remand the case to state court, http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/ 16/case-documents/2018/20180710_docket-518-cv-00450_order-1.pdf. As of this writing, the defendants’ appeal of the remand order is pending.

28. See, e.g., Press Release, Our Children’s Trust, Youth Sue the Government to Preserve the Future and Halt Climate Change (May 4, 2011), https:// static1.squarespace.com/static/571d109b04426270152febe0/t/576d76cb3e00 bec5631952d1/1466791631209/iMatter_Legal_Release_11.05.01.pdf [https: //perma.cc/DXH4-E4LD]; Press Release, Our Children’s Trust, Kansas Youth Files Climate Change Lawsuit (Oct. 18, 2012), https://static1.square space.com/static/571d109b04426270152febe0/t/576d6a2237c581d6b14799 b2/1466788389238/2012.10.18-KansasPR_0.pdf [https://perma.cc/DRL6- 7YRY].


the benefit of their citizens.29 Case law had already extended the reach of the public trust doctrine in incremental steps beyond the scope of the uses in the traditional triad (navi-gation, commerce, and fishing) to reach the protection of groundwater, wetlands recreation, and wildlife. If courts have recognized coverage of resources beyond the traditional triad, then extending public trust to the protection of the atmosphere may logically follow.30

The first wave of ATL cases was filed against many state governments and the federal government. These state cases enjoyed some preliminary success and favorable language from the courts,31 but progress has been slow to material-ize. Moreover, the federal case, Alec L. v. Jackson,32 ran into trouble regarding whether the public trust doctrine could be applied to the federal government. The court concluded that it could not be applied to the federal government and dis-missed the case.33 In the Juliana case, the plaintiffs retooled the theory and added constitutional claims based on the Equal Protection Clause, the Due Process Clause, and the Ninth Amendment.34

ATL advances two trends in environmental protection. First, it seeks enhanced duties on regulators to promote stew-ardship of resources. Second, it seeks to promote rights-based protections of individuals and consideration of future genera-tions’ interests. These two strands are reflected in the Juli-ana litigation.35 The young plaintiffs alleged that the federal government’s affirmative actions in establishing a national energy system that accelerates global climate change violated their due process rights to life, liberty, and property and has failed to protect public trust resources.36

In 2016, the government filed a motion to dismiss the claims in Juliana,37 which presented Judge Ann Aiken of the United States District Court for the District of Oregon with an opportunity to rule on the validity of this retooled ver-sion of the ATL theory. In a landmark decision, Judge Aiken

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.stanford.edu/2017/07/05/atmospheric-trust-litigation-paving-the-way-for-a-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 Mary Christina Wood, Nature’s Trust: Environmental Law for a New Ecological Age (2013); Mary Christina Wood, Atmospheric Trust Litigation, in Adjudicating Climate Change: State, National, and International Approaches 99−125 (William C.G. Burns & Hari M. Osofsky eds., 2009); Blumm & Wood, supra note 2; Mary Christina Wood & Charles W. Wood-ward, IV, Atmospheric Trust Litigation and the Constitutional Right to a Healthy Climate System: Judicial Recognition at Last, 6 Wash. J. Envtl. L. & Pol’y 663 (2016).

31. For a discussion of these ATL cases from New Mexico, Oregon, Texas, and Washington, see Randall S. Abate, Atmospheric Trust Litigation in the United States: Pipe Dream or Pipeline to Justice for Future Generations?, in Climate Justice: Case Studies in Global and Regional Governance Challenges 554−58 (Randall S. Abate ed., 2016). For updates on ATL cases in the U.S. and abroad, consult the Our Children’s Trust website, www.ourchildrenstrust.org/.

32. 863 F. Supp. 2d 11, 42 ELR 20115 (D.D.C. 2012), aff’d sub nom., Alec L. ex rel. Loorz v. McCarthy, 561 Fed. App’x 7, 44 ELR 20130 (D.C. Cir. 2014).

33. Id. at 15.34. See Juliana v. United States, 217 F. Supp. 3d 1224, 1233−34, 46 ELR 20175

(D. Or. 2016).35. Id.36. Id.37. Id. at 1233.

denied the federal government’s motion to dismiss the case and held that the plaintiffs’ claims against the federal govern-ment could proceed to trial.38

In the wake of Judge Aiken’s decision, and for the next three years, the federal government made multiple attempts to dismiss the case by employing a wide range of procedural mechanisms.39 The case was originally set for trial in Octo-ber 2018,40 but the Ninth Circuit granted the federal gov-ernment’s request for a temporary stay of the district court’s proceedings.41 In November 2018, Judge Aiken issued an order certifying the case for interlocutory appeal to the Ninth Circuit. As this writing is sent to print, the Ninth Cir-cuit heard oral arguments on the interlocutory appeal in June 2019 in Portland, Oregon.42

III. Toward a Constitutional Right to a Stable Climate System

The momentum that the Juliana plaintiffs appear to have going into the potential trial in 2019 is promising. This wave of success and optimism would not have been possible with-out a variety of synergistic developments in related contexts. Rights-based theories for environmental protection have enjoyed many significant victories in the past few years. The public trust doctrine has been used with some success as a rights-based theory for relief in recent climate change cases outside the United States in nations such as Pakistan, the Philippines, and Ukraine.43 In addition, within the span of one week in March 2017, legal personhood protections were secured for the Whanganui River in New Zealand44 and the Ganges and Yunama Rivers in India.45 It is significant for purposes of ATL momentum that the rights-based protec-tions for the rivers in India were secured in court.46

Since 2014, the Nonhuman Rights Project (NhRP) has pursued similar efforts in the animal protection domain in a line of ongoing cases seeking to free chimpanzees from unwarranted captivity pursuant to a habeas corpus peti-tion.47 Like the state-level ATL cases, some courts in these

38. Id.39. For a detailed discussion of these developments, see Our Children’s Trust, Ju-

liana v United States: Youth Climate Lawsuit, https://www.ourchildrenstrust.org/juliana-v-us.

40. Id.41. Id.42. Id.43. United Nations Env’t Programme, The Status of Climate Change Liti-

gation: A Global Overview 23−24 (May 2017), https://www.unenviron-ment.org/resources/publication/status-climate-change-litigation-global-review [https://perma.cc/JVN3-NC9U].

44. New Zealand’s Whanganui River Granted Legal Status as a Person After 170-Year Battle, ABC.net, Mar. 15, 2017, http://www.abc.net.au/news/2017-03-16/nz-whanganui-river-gets-legal-status-as-person-after-170-years/8358434.

45. Shynam Krishnakumar, Could Making the Ganges a “Person” Save India’s Holiest River?, BBC.com, Apr. 5, 2017, https://www.bbc.com/news/world- asia-india-39488527.

46. Salim v. State of Uttarakhand, No. 126 of 2015, High Court of Uttarakhand (Mar. 20, 2017), http://hindi.indiawaterportal.org/sites/hindi.indiawaterpor-tal.org/files/WPPIL-126-14%20HC-UTTARAKHAND%20ORDER%20ON%20GANGA%20AND%20YAMUNA%20RIVER%20RIGHTS-1.pdf.

47. See generally Randall S. Abate & Jonathan Crowe, From Inside the Cage to Out-side the Box: Natural Resources as a Platform for Nonhuman Animal Personhood 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 but were not prepared to rule in favor of the plaintiffs’ peti-tions. Nevertheless, two related rights-based efforts to pro-tect animals from abuse and unwarranted captivity were successful in 2016. First, Ringling Brothers agreed to dis-continue the use of elephants in its traveling circus shows,48 curtailing a 150-year tradition; second, SeaWorld agreed to discontinue its orca-captive breeding program49 after its practices came under public scrutiny following a lawsuit and high-profile documentary.50

Most importantly, and in a seemingly unrelated success, the recognition under the Due Process Clause of the right to same-sex marriage in Obergefell v. Hodges51 has laid perhaps the most compelling foundation on which the Juliana plain-tiffs may prevail. Many of the most significant constitution-ally protected rights in the United States have been initially derived from Supreme Court jurisprudence, such as a wom-an’s right to choose in Roe v. Wade.52 The Supreme Court has long recognized the Due Process Clause as a gateway for the recognition of unenumerated fundamental rights. The Due Process Clause’s protection of life, liberty, and property—read in conjunction with the Ninth Amendment53—has enabled the Court to recognize evolving societal values and articulate unenumerated fundamental rights without engag-ing the constitutional amendment process.

The list of unenumerated rights is well-entrenched in the Court’s jurisprudence and spans decades of groundbreaking jurisprudence. This list of rights includes abortion, contracep-tion, upbringing of children, procreation, sexual intimacy, marriage, and most recently, same-sex marriage.54 Admit-tedly, many of these rights are rooted in privacy-related pro-tections. Trying to connect a constitutional environmental right to the foundation of these privacy-based liberty pro-tections is ambitious and may explain why such efforts have been unsuccessful in the past. But the Obergefell decision opened a door for a Due Process Clause foundation for a constitutional right to a stable climate system in a way that the previous line of Due Process recognition of unenumer-ated rights could not offer.

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-Human Rights Project, https://www.nonhumanrights.org/litigation (last visited July 22, 2018).

48. Susan Zalkind, “The End of an Era”: Ringling Bros Circus Closes Curtain on Elephant Shows, The Guardian, May 2, 2016, https://www.theguardian.com/stage/2016/may/02/ringling-brothers-elephants-circus-final-show.

49. Brian Clark Howard, SeaWorld to End Controversial Orca Shows and Breeding, Nat’l Geographic, Mar. 17, 2016, https://news.nationalgeo graphic.com/2016/03/160317-seaworld-orcas-killer-whales-captivity-breeding- shamu-tilikum/ (last visited July 22, 2018).

50. See Tilikum v. SeaWorld Parks & Entm’t, Inc., 842 F. Supp. 2d 1259 (S.D. Cal. 2012); Blackfish (CNN Films 2013).

51. 135 S. Ct. 2584 (2015).52. 410 U.S. 113 (1973).53. The Ninth Amendment provides, “The enumeration in the Constitution, of

certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. Const. amend. IX.

54. Brief of Amicus Curiae Law Professors for D. Or., at 15−16, United States v. United States Dist. Court for the Dist. of Oregon, No. 6:15-cv-01517- TC-AA (9th Cir. 2017), https://static1.squarespace.com/static/571d109b 04426270152febe0/t/59af3d0d3e00be820ce723b6/1504656654021/Law+Prof+Motion+and+Amicus+Brief.pdf [https://perma.cc/7JY8-GN9S].

In what has been widely recognized as a groundbreaking decision, Judge Aiken’s reasoning in Juliana provides fer-tile opportunities for the ATL theory in this case to open the door for possible Due Process Clause protection of the right to a stable climate system. Judge Aiken’s decision laid a valuable foundation for extending fundamental rights juris-prudence under the Due Process Clause to environmental rights. In concluding that the case could proceed to trial, Judge Aiken noted that “Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it.”55

Judge Aiken noted that “[t]he identification and protec-tion of fundamental rights . . . has not been reduced to any formula.”56 Judge Aiken concluded that the plaintiffs had adequately alleged infringement of a fundamental right, explaining that “[t]o hold otherwise would be to say that the Constitution affords no protection against a government’s knowing decision to poison the air its citizens breathe or the water its citizens drink.”57

Judge Aiken relied heavily on the reasoning in Oberge-fell, which recognized “marriage as a right underlying and supporting other liberties” and as “a keystone of our social order.”58 Relying on Justice Kennedy’s reasoning in his majority opinion in Obergefell, Judge Aiken connected the reasoning on same-sex marriage to the stable climate con-text in Juliana.59 In “[e]xercising [her] ‘reasoned judgment,’” Judge Aiken had “no doubt that the right to a climate sys-tem capable of sustaining human life is fundamental to a free and ordered 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 nor progress.’”60 Accepting as true plaintiffs’ alle-gations that the government

played a unique and central role in the creation of our cur-rent climate crisis; that they contributed to the crisis with full knowledge of the significant and unreasonable risks posed by climate change; and that the Due Process Clause therefore imposes a special duty on defendants to use their statutory and regulatory authority to reduce greenhouse gas emissions,

Judge Aiken held that plaintiffs adequately alleged their claim and may proceed to trial on the due process issues.61

The youth plaintiffs also made public trust claims.62 These claims arose “from the application of the public trust doc-trine to essential natural resources.”63 The plaintiffs stated that with respect to these essential resources, “the sovereign’s

55. Juliana, 217 F. Supp. 3d at 1262.56. Id. at 1249 (quoting Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015)).57. Id. at 1250.58. Obergefell, 135 S. Ct. at 2601.59. Juliana, 217 F. Supp. 3d at 1249−51.60. Id. at 1250. Plaintiffs asserted that if the government’s actions that contributed

to climate change were to “continue unchecked,” such actions would “perma-nently and irreversibly damage plaintiffs’ property, their economic livelihood, their recreational opportunities, their health, and ultimately their (and their children’s) ability to live long, healthy lives.” Id.

61. Id. at 1251–52.62. Id. at 1253.63. Id.


public trust obligations prevent it from ‘depriving a future legislature of the natural resources necessary to provide for the well-being and survival of its citizens.’”64

Judge Aiken stated, “the government, as trustee, has a fiduciary duty to protect the trust assets from dam-age so that current and future trust beneficiaries will be able to enjoy the benefits of the trust.”65 She concluded that plaintiffs had adequately alleged harm to public trust assets because “[t]he federal government holds title to the submerged lands between three and twelve miles from the coastlines of the United States” and “a number of plaintiffs’ injuries relate to the effects of ocean acidi-fication and rising ocean temperatures.”66 Judge Aiken also stated that plaintiffs’ federal public trust claims are recognized in federal court and that “the federal govern-ment, like the states, holds public assets—at a minimum, the territorial seas—in trust for the people.”67 Judge Aiken further determined that “[p]ublic trust claims are unique because they concern inherent attributes of sovereignty.”68 “The public trust imposes . . . an obliga-tion [on the government] to protect the res of the trust”; a significant “feature of that obligation is that it cannot be legislated away.”69 Thus, “[b]ecause of the nature of pub-lic trust claims, a displacement analysis simply does not apply.”70 Judge Aiken noted that “[a]lthough the public

64. Id.65. Id. at 1254.66. Id. at 1255–56.67. Id. at 1259.68. Id. at 1260.69. Id.70. Id.

trust predates the Constitution, plaintiffs’ right of action to enforce the government’s obligations as trustee arises from the Constitution.”71

Judge Aiken further observed that this action is of a dif-ferent order than the typical environmental case. It alleges that “[the government’s] actions and inactions—regardless of whether they violate any specific statutory duty—have so profoundly damaged our home planet that they threaten plaintiffs’ fundamental constitutional rights to life and liberty.”72 In addition, “[e]ven when a case implicates hotly contested political issues, the judiciary must not shrink from its role as a coequal branch of government.”73

Judge Aiken’s decision could secure a historic victory for environmental rights in the U.S. federal court system, but it has a long way to go. The outcome in Obergefell appeared to be similarly improbable just five years ago as it was work-ing its way through the federal courts, and yet the right to same-sex marriage is now constitutionally enshrined under the Due Process Clause. The Juliana case will likely remain in the U.S. federal courts for years to come as it makes its way to the Supreme Court. In the meantime, the ATL movement will continue to be propelled forward by favorable tail winds in the United States and abroad as it seeks to secure recogni-tion of a constitutional right to a stable climate system under 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 space.com/static/571d109b04426270152febe0/t/5ad6274f575d1f452d0e0015/ 1523984211940/2018.04.15.FL.Complaint.FINAL.pdf [https://perma.cc/2XS9- AYLZ]; see also Press Release, Our Children’s Trust, Constitutional Climate Lawsuit Brought by Young Alaskans Heard in Anchorage (Apr. 30, 2018), https://static1.squarespace.com/static/571d109b04426270152febe0/t/5ae7f3f770a6ad3043d94eec/1525150712298/2018.04.30+Sinnok+v.+Alaska+hear 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 CommonsErin Ryan*

∗ 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.

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.


Table of ContentsIntroduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1I. Legal Doctrines Governing Public and Private Interests in Water Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1

A. Legal Origins of the Public Trust Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 21. The Roman and Byzantine Empires . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 22. The Magna Carta and Forest Charter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 23. British Common Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3

B. Reception in the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 31. American Common Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 32. Affirmation by the U.S. Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 43. Illinois Central Railroad v. Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 54. State Constitutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 6

C. The Law of Private Water Allocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 71. Riparian Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 72. Prior Appropriations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 8

II. Building the Los Angeles Aqueduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 8A. The Owens Valley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 9B. The Mono Lake Basin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 0C. The Mono Basin Extension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 1D. The Impacts of Diversions in the Mono Basin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2

III. National Audubon Society v. Superior Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3A. The Legal Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3B. The Court’s Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 4C. The Aftermath: The Water Board’s Decision 1631 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 5

IV. Unpacking the Mono Lake Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 6A. The Nature of the Public Trust Doctrine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 6B. Doctrinal Extensions on Values, Tributaries, and Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 7

1. Environmental Public Trust Values . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 72. Non-Navigable Tributaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 83. Duty of Ongoing Supervision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 8

C. Post-Decision Pushback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 9V. The Contested Future: An Atmospheric Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 0Conclusion: Navigating Public and Private Interests in Natural Resource Commons . . . . . . . . . . . . . . . . . . . . . . 6 4

Summer 2019 FROM MONO LAKE TO THE ATMOSPHERIC TRUST 41

Introduction

It is a pleasure to share with this symposium one of the all-time great stories of American environmental, property, and water law—the saga of National Audubon Society v. Superior Court, better known as the Mono Lake case.1 It recounts the epic conflict over water between the city of Los Angeles and advocates for the Mono Basin, the eastern watershed of the high Sierra Nevada crest at Yosemite National Park, some four hundred miles to the north. In 1983, the California Supreme Court took the first steps toward resolving that con-flict by drawing on an ancient common-law doctrine with roots in early Roman and British law—the public trust doc-trine—which entrusts the state to manage certain natural resource commons for the benefit of the public. Since then, the Mono Lake case has remained the leading example of modern public trust litigation in the United States, inspiring a new age of public trust advocacy throughout the country and even the world.2

The Mono Lake story prompts reflection about the way the public trust doctrine navigates complex conflicts between public and private rights in natural resource commons, from ancient protections for waterways to contested claims for atmospheric resources. It is a wonderful tale to tell, and it is also very dear to me personally, because it includes the case that brought me into the law. During the aftermath of the California Supreme Court’s decision in the case, I served as an interpretive ranger with the U.S. Forest Service (Forest Service) on the Mono Lake District of the Inyo National For-est. There, it was my job to share this story with the general public, cast as “the Water Issue,” until it eventually inspired me to leave the Forest Service for law school. Some twenty years later, I had the opportunity to write the full history of the case in a law review article3 that I was then invited to turn into a book,4 and I am delighted to be able to share some of that work as part of this public trust symposium.5

In this Article, I partner a summary of the Mono Lake story with additional historical context, expanded legal analysis, and new reporting on important public trust devel-opments, including its application in takings litigation,6 to fracking regulation in Pennsylvania,7 groundwater in

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 Nath, (1996) 1 S.C.C. 388 (India), in I United Nations Environment Programme Compendium of Judicial Decisions in Matters Related to the Environment, National Decisions 259 (1998) (discussing the role of the public trust doctrine in Indian law and quoting the California Supreme Court’s description of the doctrine in Mono Lake).

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. 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).

5. This is in reference to the 2018 J.B. & Maurice C. Shapiro Environmental Law Symposium, “The Public Trust Doctrine in the 21st Century” hosted at The George Washington University Law School on March 15, 2018.

6. See infra notes 75–79 and accompanying text, discussing use of the public trust doctrine to defend takings claims.

7. Pa. Envtl. Def. Found. v. Commonwealth, 161 A.3d 911, 47 ELR 20081 (Pa. 2017); Robinson Township v. Commonwealth, 83 A.3d 901, 43 ELR 20276 (Pa. 2013). See infra notes 86–90.

California,8 and the atmospheric trust climate advocacy unfolding as this piece goes to press.9 Part I introduces the public trust doctrine itself, including its origins in Roman and British common law. I trace how the public trust doc-trine has developed in American law since its reception in the early 19th century, culminating in the U.S. Supreme Court’s 1892 affirmation of the public trust doctrine in Illi-nois Central Railroad v. Illinois.10 From there, the Article briefly introduces the law of private water allocation in both the eastern and western United States, contrasting how the public commons theory that underlies the public trust doc-trine intersects with the privatization theory that undergirds the western doctrine of prior appropriations. The discussion there prepares us to analyze the conflict between them that played out at Mono Lake.

Part II sets the stage for the case that followed, recount-ing the extension of the Los Angeles Aqueduct to the Mono Basin, the impacts of diversions on the Mono Lake ecosys-tem, and how they galvanized a determined group of local, state, and national plaintiffs to try and “Save Mono Lake.” Part III begins the legal analysis of the Mono Lake case. After summarizing the parties’ legal arguments, it reviews the California Supreme Court’s groundbreaking conclu-sion and the legal aftermath that culminated in the Water Board’s decision to limit water diversions as needed to pro-tect Mono Lake.

Part IV analyzes the precedent created by Mono Lake. It explores the nature of the public trust doctrine as a limit on sovereign authority, highlights noteworthy legal inno-vations in the decision, and reviews doctrinal progeny of the case, including the recent Scott River case extending the Mono Lake rationale to groundwater resources.11 It also summarizes the main schools of criticisms generated by the decision, primarily among advocates for property rights, the separation of powers, and environmentalists. Finally, Part V considers the next generation of public trust advo-cacy following in the footsteps of the Mono Lake case, espe-cially Juliana v. United States and related climate litigation emerging worldwide.12 The Article concludes with reflec-tions on the role of the doctrine in helping us navigate the public and private interests in public natural resource com-mons more generally.

I. Legal Doctrines Governing Public and Private Interests in Water Resources

In the Mono Lake case, advocates invoked the public trust doctrine to protect public law interests in the environmental values associated with a navigable waterway against private

8. Envtl. Law Found. v. State Water Res. Control Bd., Case No.: 34-2010-80000583 (Cal. 3d App. Dist., Aug. 29, 2018) [hereinafter Scott River case]. See infra notes 284–89.

9. Juliana v. United States, 217 F. Supp. 3d 1224, 46 ELR 20072 (D. Or. 2016). See supra Part V.

10. 146 U.S. 387, 435 (1892).11. Scott River, Case No.: 34-2010-80000583 (Cal. 3d App. Dist., Aug. 29, 2018).12. See Juliana, 217 F. Supp. 3d 1224, and the other atmospheric trust cases dis-

cussed infra Part IV.


law claims to the actual water within it.13 To understand how these public and private interests came into conflict at Mono Lake, it is important to understand the different legal doc-trines that govern water resources in the United States. This part introduces the public trust doctrine, which establishes public rights and responsibilities in water, and more curso-rily, the law of private water allocation, which assigns private rights to use the water within those waterways. And as the Mono Lake conflict demonstrates, these two sets of laws will not always play nicely.

Part I.A. introduces the public trust doctrine and its his-torical origins, tracing the public trust principle from ancient Rome, through early British law, to its formal reception in the United States. Because the law of private allocation also plays an important role in the Mono Lake conflict, Part I.B. provides a light introduction to the primary doctrines of private water allocation: the riparian rights doctrine of the eastern United States, inherited from British law, and the prior appropriations doctrine that evolved later in the west-ern United States.

A. Legal Origins of the Public Trust Doctrine

Modern public trust principles, which assign state respon-sibility for natural resources held in trust for the public, are most famously associated with American law.14 However, the public trust doctrine has roots in some of the oldest doctrines of the common-law tradition15—with many accounts dating its origins to early British law, and some all the way back to ancient Rome.16 This section presents the conventional historical account of the development of the modern public trust doctrine.

1. The Roman and Byzantine Empires

In the 6th century A.D., the Byzantine Emperor Justinian I set to work codifying Roman Common Law of the previ-ous era, for the combined purpose of fortifying legal educa-

13. Mono Lake, 658 P.2d at 726–27.14. See, e.g., M.C. Mehta v. Kamal Nath, (1996) 1 S.C.C. 388 (India), in I

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-pressed in the Mono Lake case, in adopting similar public trust principles as a feature of Indian constitutional law). See also Alexandra B. Klass, Mod-ern Public Trust Principles: Recognizing Rights and Integrating Standards, 82 Notre Dame L. Rev. 699, 701 (2006) (discussing American versions of public trust doctrine in general, and referring to various expressions of the trust as “public trust principles”).

15. See, e.g., Joseph Sax, The Public Trust Doctrine in Natural Resource Law: Ef-fective Judicial Intervention, 68 Mich. L. Rev. 471, 475 (1970) (laying the seminal academic foundations for the public trust doctrine as a tool to aid in the protection of natural resources, and crediting its origins to early British and Roman law); but see James L. Huffman, Speaking of Inconvenient Truths—A History of the Public Trust Doctrine, 18 Duke Envtl. L. & Pol’y F. 1, 21 (2007) (critiquing the conventional account of this history).

16. J. Inst. Proemium, 2.1.1. (T. Sandars trans., 4th ed. 1867) (translation from the Institutes of Justinian, by the Byzantine Emperor, Justinian I.). But see J.B. Ruhl & Thomas McGinn, The Roman Public Trust Doctrine—Not Public, Not a Trust, Not a Doctrine, But Not Nothing (forthcoming 2019) (critiquing the standard account of the Justinian roots of the doctrine).

tion and restating the law for enforcement purposes.17 In the Institutes of Justinian, published in 533, he documented the jus publicum, a principle addressing the common ownership of certain natural resources: “By natural law, these things are the common property of all: the air, the running water, the sea, and with it, the shores of the sea.”18 Thousands of years later, it is hard to know exactly how these principles helped govern the Roman Empire,19 but this commanding early statement of public commons has redounded through com-mon-law jurisprudence ever since, in both judicial decisions and constitutional affirmations.20 Analogous principles of public commons ownership, especially pertaining to water-ways, also appear in civil law countries with legal codes that draw on ancient Roman law, including France, Spain, and other post-colonial nations with related legal systems.21

In the Mono Lake story that is the focus of this Article, we will hear a lot about the intersection of these public trust principles with water resources, and indeed, the doctrine is most often invoked in application to waterways. But before moving on, we might pause here for a moment to acknowl-edge the very first item in Justinian’s list—“the air”—because that will become an important element in the modern pub-lic trust developments reviewed toward the end of our story, now that advocates are deploying public trust principles in the context of climate governance.22

2. The Magna Carta and Forest Charter

Some jus publicum principles were later incorporated into early British law, beginning with the Magna Carta. In 1215, King John of England issued the Magna Carta (Great Char-ter), promising his rebellious barons that he and all future sovereigns would operate within the rule of law.23 Although the Magna Carta was unsuccessful in the first instance, it eventually provided the foundations of the modern English legal system, and it is credited as a progenitor of Western democracy and constitutional law.24 In addition to declaring 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 certain principles of Roman common law, including elements of the jus publicum. For example, Chapter 23 of the Magna

17. Herbert F. Jolowicz & Barry Nicholas, Historical Introduction to the Study of Roman Law 492−93 (3d ed. 1972).

18. Id.19. See Huffman, supra note 15; Ruhl & McGinn, supra note 16.20. See Ryan, supra note 4, at Chapter VIII (The Evolving PTD) (tracing the evo-

lution of the doctrine in the U.S. and international jurisdictions).21. See, e.g., Glenn J. Macgrady, The Navigability Concept in the Civil and Com-

mon Law: Historical Development, Current Importance, and Some Doctrines That Don’t Hold Water, 3 Fla. St. U. L. Rev. 513, 536–45 (1975), https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=1801&context=lr [https://perma.cc/E9BF-2FQD] (reviewing Roman-inspired doctrines of public ownership over navigable waterways in Spain, France, and other civil law countries).

22. See Juliana v. United States, 217 F. Supp. 3d 1224, 46 ELR 20072 (D. Or. 2016); discussed infra Part IV.

23. See Andrew Blick, Beyond Magna Carta: A Constitution for the Unit-ed Kingdom (Bloomsbury, 2015).

24. See Doris Mary Stenton, Magna Carta, Encyclopedia Britannica, https://www.britannica.com/topic/Magna-Carta [https://perma.cc/6ZXC-9QQ3].

25. Id.


Carta required the removal of all weirs in the Thames and Medway Rivers “throughout all of England” that interfered with fishing or navigation.26 The Magna Carta was negoti-ated between a proto-public commons over navigable waters for these purposes.27

The Charter of the Forest, added to the Magna Carta in 1217 by King Henry III, further protected public rights to access natural resources on certain undeveloped royal lands (not just forests), and it remained in effect for centuries there-after.28 Re-establishing traditional rights of public commons that had been eroded by William the Conqueror, the For-est Charter promised that the King would not interfere with commoners’ rights to graze animals, forage, plant crops, and collect lumber on open lands subject to Forest Law.29 Nota-bly, this law still governs the New Forest territory in southern England.30 While these provisions do not necessarily follow from the Justinian references to common property in air, water, and coastlines, they do express an early affirmation of what would develop into more modern public trust principles of public rights in natural resource commons.

3. British Common Law

Early British common law also made reference to public trust principles in a series of cases and authorities affirming sovereign authority over submerged tidelands.31 In the 1611 Royal Fishery of River Banne case, the Kings Bench held that while the beds of nonnavigable waterways could be privately held, navigable waters were owned by the sovereign for public use.32 Sir Matthew Hale, in his renowned 1670 Treatise on English Maritime Law later described sovereign ownership of tidelands in his account of the three different kinds of coastal land: (1) that under the royal right (or police power); (2) that available for public navigational access; and (3) that which was privately owned.33

Critics of this conventional historical account, including Prof. James Huffman, have pointed out that unlike contem-porary statements of the public trust doctrine, Chapter 23 of

26. Magna Carta, Chapter 23 (Eng. 1215). See also Michael C. Blumm & Court-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 2019) (discussing the implementation of Justinian public trust principles in the Magna Carta).

27. Magna Carta, Chapter 33 (Eng. 1215). See also Blumm & Courtney Engel, supra note 26, at 9 (discussing the implementation of Justinian public trust principles in the Magna Carta).

28. Magna Carta, Chapter 12 (Eng. 1217). See Sarah Nield, The New Forest: An-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 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 and Chases of England and Wales, c. 1000 to c. 1850, St. John’s College Research Center, http://info.sjc.ox.ac.uk/forests/Carta.htm [https://perma.cc/KLP2-M2A4].

30. See Nield, supra note 28, at 303.31. See Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently

Public Property, 53 U. Chi. L. Rev. 711, 727–30 (1986).32. 80 Eng. Rep. 540–43 (K.B. 1611).33. Matthew Hale, A Treatise De Jure Maris et Brachiorum Ejusdem, in Stuart

A. Moore, A History of the Foreshore and the Law Relating Thereto 370−72 (1880).

the Magna Carta protected only British nobility, rather than the general public, and that the King’s prerogatives under British common law did not include trust-like responsibili-ties until the 19th century.34 Others, including Profs. J.B. Ruhl and Tom McGinn question the relevance of the Jus-tinian statement of the Jus Publicum to actual Roman legal practice.35 Indeed, it may be that the ideals of the Forest Charter come closer to the public trust principles that would ultimately evolve in the United States.36 Nevertheless, the early American courts that adopted the public trust doctrine referred copiously (and perhaps defensively) to its roots in British law.37

B. Reception in the United States

The principle of sovereign authority over submerged lands was received in the United States through the individual states’ reception of British common law, and it began mak-ing appearances in litigation in the early 19th century.38 The American version of the doctrine expanded to embrace not only the submerged lands beneath coastal tidelands, those of principal value in Britain, but also those under other large navigable waterways to which there were no true British ana-logs, including America’s Great Lakes and enormous rivers.39 In this way, the American public trust doctrine developed beyond its British origins, although early American cases fre-quently referred back to Roman and English common law for support. This section reviews the reception of the doc-trine by individual states in their common law and constitu-tions, and its recognition by the Supreme Court in Illinois Central Railroad v. Illinois.40

1. American Common Law

In the 1821 case of Arnold v. Mundy, one of the first to refer to the public trust doctrine’s Roman and English roots, the Supreme Court of New Jersey quoted Justinian and the vari-ous limitations on the English Crown in holding that the land and resources beneath navigable water—here, oys-ter beds—were common property.41 The plaintiff property owner had purchased a farm adjacent to a navigable river, where he planted oysters and staked off the resulting bed.42 He subsequently sued a defendant for taking oysters from this bed, but the defendant claimed that he and all citizens of the state had the right to take oysters where they would be naturally present in a navigable riverbed.43 The Chief Justice determined that the plaintiff must have title to the oyster

34. Huffman, supra note 15, at 21.35. Ruhl & McGinn, supra note 16.36. Robinson, supra note 28.37. Id.38. For additional historical account of the early American public trust doctrine,

see Ryan, supra note 4, at Chapter II.39. See Ill. Cent. R.R. v. Illinois, 146 U.S. 387, 453 (1892).40. 146 U.S. 387 (1892).41. 6 N.J.L. 1, 71–72 (1821).42. Id. at 65–66.43. Id.


bed to prevail in his suit,44 but that he could not satisfy this requirement, as his private rights extended only as far as the landward side of the high-water mark.45

The Chief Justice found that the land under navigable water is considered common property,46 and that proprietors have no more power than the English crown to convert lands beneath them into private property.47 Referencing Justinian, the Chief Justice characterized common property as “the air, the running water, the sea, the fish, and the wild beasts,” and held that title to these were in the sovereign, to “be held, protected, and regulated for the common use and benefit.”48 Writing with strong tones of judicial gravity, he concluded:

The sovereign power itself, therefore, cannot, consistently with the principles of the law of nature and the constitution of a well ordered society, make a direct and absolute grant of the waters of the state, divesting all the citizens of their common right. It would be a grievance which never could be long borne by a free people.49

With these words, he became the first American jurist to tie the public commons element of the public trust doctrine to the orderly functioning of democracy.

2. Affirmation by the U.S. Supreme Court

The Supreme Court first formally invoked the public trust doctrine in 1842, in the case Martin v. Waddell, where it affirmed the sovereign ownership of navigable waters and their submerged resources, resolving another dispute over oyster beds.50 The Court held that proprietors claiming title to New Jersey oyster beds under a charter originally dating back from the British King Charles to the Duke of York could not prevail, because even a royal grant was subject to public trust rights of common fishery for the common peo-ple.51 In defending its conclusion, the Court referenced the presence of the doctrine in English law as far back as the Magna Carta:

[T]he lands under the navigable waters [within the limits of the charter] passed to the grantee, as one of the royalties incident to the powers of government; and were to be held by him in the same manner, and for the same purposes, that the navigable waters of England and the soils under them, are held by the Crown.

The policy of England since Magna Carta—for the last six hundred years—has been carefully preserved to secure the common right of piscary for the benefit of the public.

44. Id. at 9–10.45. Id. at 67.46. Id. at 71–72.47. Id. at 78.48. Id. at 71.49. Id. at 78.50. 41 U.S. 367 (1842).51. Id. at 407‒18, 423.

[I]t would require plain language in these letters-patent [to the Duke of York] to persuade . . . [the Court] that the pub-lic and common right of fishery in navigable waters, which has been so long and so carefully guarded in England, and which was preserved in every other colony founded on the Atlantic borders, was intended, in this one instance, to be taken away.52

Three years later, in Pollard v. Hagan, the Supreme Court reached a similar conclusion on the basis of the same prin-ciples in resolving a dispute over the ownership of submerged lands in Alabama and Georgia.53 The Court rejected an argu-ment that territory in Alabama that had originally been ceded by Spain should not be subject to the British rule of sover-eign ownership of submerged lands.54 Instead, it determined that when Alabama was admitted to the Union, it entered on “equal footing” with neighboring states, such as Geor-gia, and thereby succeeded to all the rights of sovereignty, jurisdiction, and eminent domain as these other states.55 The Court held that the land under navigable water was reserved to the states, and that new states have the same sovereignty and rights over navigable waters as did the original states.56

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 definitive treatment of the public trust doctrine in Shively v. Bowlby,58 an 1894 case quieting title to submerged lands beneath a state-sanctioned wharf on the Columbia River in Oregon.59

In a meticulous exposition, the Court traced how the doctrine of public rights in submerged lands had progressed from English common law into the original thirteen states and those that had followed, identifying the overwhelming majority that had explicitly adopted the public trust. Cit-ing both Martin v. Wadell and Pollard v. Hagan, the Court once again affirmed that submerged lands had been held by the English King for the benefit of the public,60 that those rights became vested in the original states after the American Revolution,61 and that all U.S. territory ever-after would be subject to the same public trust limitations on submerged lands.62 The Court held that whenever territory came into the United States by whatever means, the same public ownership of submerged lands below the mean high-water mark passed to the federal government, held in trust for the new states that would be carved from this territory.63

52. Id. at 413−14.53. 44 U.S. 212 (1845).54. Id. at 228−29.55. Id. at 223, 228−29.56. Id. at 230.57. See Michael C. Blumm, Public Property and the Democratization of Western Wa-

ter Law: A Modern View of the Public Trust Doctrine, 19 Envtl. L. 573, 580 (1989).

58. 152 U.S. 1, 57 (1894).59. Id.60. Shively v. Bowlby, 152 U.S. 1, 49 (1894).61. Id. at 14-15, 57.62. Id. at 57.63. Id.


In so doing, the Supreme Court affirmed the general prov-enance of American lands submerged in navigable waters (below the mean high-water mark) as owned by the sovereign and held in trust for the benefit of the public.

3. Illinois Central Railroad v. Illinois

Although Shively v. Bowlby was the Supreme Court’s most definitive treatment of the public trust doctrine, its most famous statement of the doctrine came from a decision issued two years earlier, the 1892 case of Illinois Central Railroad v. Illinois.64 There, the Court provided a crisp statement of the traditional public trust principles of American law:

[T]he State holds the title to the lands under navigable waters . . . in trust for the people of the State, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties.65

In this seminal decision, the Court not only affirmed sovereign authority over submerged lands, but clarified the nature of its obligation to the public as trustee of those lands.66 And indeed, the Illinois Central case demonstrates just how powerful the public trust obligation can be.

To give a sense of the enormous power packed in this seemingly simple doctrine, consider the striking facts of the case. Boiling the story down to its core: in 1869, the state legislature conveyed the bed of Chicago Harbor—the most valuable submerged lands in all of Lake Michigan—to a private railroad, presumably to spur economic devel-opment.67 The people of Illinois were dubious. While they hoped economic development would eventually confer pub-lic benefits, the gift smacked of patronage and cronyism, and it generated considerable public outrage.68 When both the Chicago Tribune and the Chicago Times condemned the conveyance, legislative support for the deal began to collapse, and the Illinois House and Senate created com-mittees to investigate the possibility of corruption.69 When the legislative session finally turned over, one of the new legislature’s first acts was to repeal the old legislature’s gift to the railroad.70 Now the railroad was the outraged party, and this famous litigation ensued.

In court, the railroad argued that the new legislature lacked the authority to repeal the Chicago Harbor convey-ance made by the prior legislature.71 The conveyance was

64. 146 U.S. 387 (1892) [hereinafter Ill. Centr. R.R.].65. Id. at 452.66. Ryan, The Historic Saga, supra note 3, at 568.67. Ill. Cent. R.R., 146 U.S. at 438–39 (making “a grant by the State, in

1869, of its right and title to the submerged lands, constituting the bed of Lake Michigan”).

68. Joseph D. Kearney & Thomas W. Merrill, The Origins of the American Public Trust Doctrine: What Really Happened in Illinois Central, 71 U. Chi. L. Rev. 799, 805–06, 840–42 (2004).

69. Id. (describing public outrage over the conveyance); id. at 889–90 (describing legislative committees created to investigate potential corruption).

70. Id. at 911 (indicating the legislative turnover that followed); Ill. Cent. R.R., 146 U.S. at 449 (“On the 15th of April, 1873, the legislature of Illinois re-pealed the act.”).

71. Ill. Cent. R.R., 146 U.S. at 438–39; 450–51.

extremely valuable, and ordinarily, neither the government nor any other owner can simply “take back” a thing of value this way.72 However, the state defended itself by deploying public trust principles as a novel legal shield. Conceding that 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 an actual problem, because—thanks to the public trust doc-trine—there had not been any actual gift.73 The state effec-tively acknowledged that it may have looked as though the previous legislature had conveyed the bed of Chicago Harbor to this private party, but argued that in fact, no such thing had happened.74 The bed of Chicago Harbor was subject to the public trust doctrine—held by the state in trust for the public—and therefore, as a matter of law, could not be con-veyed this way.75

The state argued that the previous legislature had lacked the power to make a gift of lands encumbered by the public trust.76 Such an act would be ultra vires—literally, beyond the authority of the state—at least without taking more heroic measures to clarify why such an unusual conveyance actu-ally did accord its public trust obligations.77 As a result, there was no actual gift, and accordingly no harm in repealing it, and therefore, no legal foul. The Supreme Court agreed with the state’s argument, affirming the public trust doctrine as a foundational element of state natural resources law.78

In doing so, Illinois Central enshrined the public trust doctrine among what later Fifth Amendment takings juris-prudence would refer to as the “background principles” of state common law.79 In the early 1990s, the Supreme Court clarified that takings liability applies whenever state regula-tion obstructs all economically viable use of private property, no matter what public interests are at stake—unless the chal-lenged regulation is already among the “background prin-ciples” of state property law that limit an owner’s reasonable expectations about how they should be able to use their prop-

72. Indeed—as any self-respecting toddler would know, “No take backsies!”73. Ill. Cent. R.R., 146 U.S. at 439.74. See id. at 439.75. See id. at 439, 453.76. See id. at 453 (“The trust devolving upon the State for the public, and which

can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. The control of the State for the purposes of the trust can never be lost. . . .”).

77. Id.78. Id.79. 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 background principle of law that can constrain the reasonable expectations of a property owner alleging a taking); id. at 137–40 (2006) (discussing use of the public trust doctrine to defend takings claims by defusing the reasonableness of claimants’ expectations). See also John D. Echeverria, The Public Trust Doc-trine as a Background Principles Defense in Takings Litigation, 45 U.C. Davis L. Rev. 931, 931–34 (2012) (analyzing use of the doctrine as a takings defense in light of two California cases that did not allow it); J. Peter Byrne, The Pub-lic Trust Doctrine, Legislation, and Green Property: A Future Convergence?, 45 U.C. Davis L. Rev. 915, 916 (2012) (suggesting that the doctrine be used as a defense to innovative regulatory takings claims and to “sustain environmental legislation against judicial hostility”). But see Barton H. Thompson Jr., Judicial Takings, 76 Va. L. Rev. 1449, 1532–33 (1990) (criticizing use of the doctrine to avoid just compensation for what otherwise looks like a taking).


erty, such as the common law of nuisance.80 The Court’s old recognition in Illinois Central that the public trust doctrine is a foundational element of state law has renewed importance since its newer takings jurisprudence expanded potential takings liability for environmental regulations that interfere with economic use.81 The doctrine is increasingly invoked by state and municipal parties defending takings claims against regulations involving construction on tidelands and wetlands, public access to waterways, and interference with water rights. So far, most cases have affirmed the doctrine as a defense to takings claims in these circumstances, including decisions in New Jersey, South Carolina, and the U.S. Court of Appeals for the Ninth Circuit,82 but the Federal Court of Claims has rejected the background principle defense.83

More importantly, perhaps, Illinois Central demonstrates that the public trust doctrine functions not only as a grant of affirmative state authority over submerged lands, but also as a limit on state authority with regard to the management of those lands, because the state is required to manage them as trustee for the public benefit.84 The public, as the beneficiary of this trust relationship, is entitled to call the state to account for errant management choices in the courts. If members of the public believe the state has failed its obligations as trustee, they can sue. Over the years, as plaintiffs across the country have litigated to vindicate and define public trust obligations, the doctrine has developed differently from one state to the next. Some states protect different resources under the doc-trine and some assign different levels of protection to com-mon trust resources,85 but at a minimum, most share the common principle of sovereign authority over lands beneath navigable waters held in trust for the public.86

80. Lucas v. S.C. Coastal Comm’n, 505 U.S. 1003, 1027–30, 22 ELR 21104 (1992). See also Palazzolo v. Rhode Island, 533 U.S. 606, 626–30, 32 ELR 20516 (2001).

81. See, e.g., Echeverria, supra note 79; Richard M. Frank, The Public Trust Doc-trine: Assessing Its Recent Past & Charting Its Future, 45 U.C. Davis L. Rev. 665, 682–84 (2012).

82. Esplanade Properties, LLC v. City of Seattle, 307 F.3d 978 (9th Cir. 2002) (affirming the city’s refusal to allow construction of residences on an elevated platform above tidelands, because the public trust doctrine vitiated any en-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 blocked tidelands development without compensation, even when the lands at issue became submerged after the owner took title); Nat’l Ass’n of Homebuild-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 walkways along the water, because the public trust doctrine prevents owners from claiming any entitlement to exclude).

83. 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 the public trust doctrine would not have barred the claim); Tulare Lake Basin Water Dist. v. United States, 49 Fed. Cl. 313 (2001) (in an opinion by the same judge as Casitas, rejecting the state’s public trust “background principle” defense against a takings claim by California irrigators after water delivery un-der a state contract was temporary suspended while the state complied with restrictions under the Endangered Species Act).

84. Ryan, The Historic Saga, supra note 3, at 571, 574.85. See Ryan, supra note 4, at Chapter VIII (The Evolving PTD) (describing differ-

ent versions of the doctrine in different U.S. states). For example, most states protect public access to submerged lands below the high water mark, but New Jersey protects access to dry sand beaches as well. Matthews v. Bay Head Imp. Ass’n, 471 A.2d 355, 363 (N.J. 1984).

86. See Ryan, supra note 4, at Chapter VIII (The Evolving PTD).

4. State Constitutions

Finally, it is worth noting that public trust principles have been incorporated into a number of state constitutions within the United States,87 even where the doctrine is also part of state common law.88 Some constitutionalized versions look very similar to the common-law statement of the public trust doctrine affirmed in Illinois Central. For example, Flor-ida’s Constitution includes a provision that recognizes public ownership of critical water commons and confers traditional protections for submerged lands beneath navigable waters:

The title to land under navigable waters, within the bound-aries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state by virtue of its sovereignty, in trust for all the people.89

Alternatively, some state constitutions have taken a more modern approach, applying public trust principles to addi-tional resources, or expanding protections for specific pur-poses. For example, Article I, Section 27 of the Pennsylvania Constitution states:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, includ-ing generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.90

Pennsylvania’s super-statutory public trust doctrine, known as the Environmental Rights Amendment to the state constitution, recently played a pivotal role in a spec-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.91 In a move that surprised commentators, a plurality of the Penn-sylvania Supreme Court invoked the doctrine sua sponte to overturn a state statute that had prevented municipalities from regulating the location of fracking operations through zoning.92 A few years later, a clear majority of the same court confirmed that Pennsylvania is obligated to manage its state parks and forests, including the oil and minerals therein, as a trustee in accordance with the public trust principles of the

87. Ryan, The Historic Saga, supra note 3, at 572−73. See also Barton H. Thompson Jr., Environmental Policy and State Constitutions: The Potential Role of Substan-tive Guidance, 27 Rutgers L.J. 863, 866 (1996) (“[T]he ‘public trust’ doctrine plays a constitutional role in most states even though less than a handful of states refer to the trust in the constitution itself.”).

88. Klass, supra note 14, at 714.89. Fla. Const. art. X, § 11.90. Pa. Const. art. I, § 27.91. John C. Dernbach, The Potential Meanings of a Constitutional Public Trust, 45

Envtl. L. 463, 464 (2015).92. Robinson Township v. Commonwealth, 83 A.3d 901, 43 ELR 20276 (Pa.

2013).


Environmental Rights Amendment.93 They reasoned that the clear language expressly affirms both the right of the people to enjoy these public natural resources and the Common-wealth’s obligation to maintain them.94

Constitutionalized versions of the doctrine have thus pro-vided additional means of protecting public trust resources and expanded recognition for new public trust values beyond those traditionally protected at common law. How-ever, scholars like Alexandra Klass have expressed concerns that the constitutionalization of public trust principles may displace common-law versions of the doctrine, undermining the further development of public trust principles through traditional common-law processes.95 Some states, such as Idaho, have committed the public trust doctrine to statute specifically to prevent the further development of the com-mon-law doctrine.96

C. The Law of Private Water Allocation

This introduction to the public trust doctrine reveals it as a public commons-based theory of public rights and respon-sibilities with regard to navigable waterways, and perhaps other critical natural resources.97 However, at least when applied to American waterways, the public trust doctrine is inevitably destined to collide with a wholly separate body of law, and one that is often based on a contrasting theory of private rights. The law of water allocation, by which rights are granted for the use or extraction of water from public commons waterways, enables individuals and groups to claim water for specific private purposes. Especially in the western United States, these allocation laws are generally based on a privatization model.98

The problem becomes immediately obvious: the water governed under both sets of laws is, after all, the same exact water. The water to which individuals and other entities can obtain private rights of use under the law of water alloca-tion is the very same water that makes up the waterways pro-tected by the public trust doctrine. Yet, these two bodies of law—the public trust doctrine and the law of private water allocation—are doctrinally orthogonal to one another. Each developed independently of the other, as though they have neither a legal nor a substantive relationship at all.99

93. Pa. Envtl. Def. Found. v. Commonwealth, 161 A.3d 911, 47 ELR 20081 (Pa. 2017).

94. Id. at 916.95. Klass, supra note 14, at 699.96. Idaho Code tit. 58, ch. 12 § 58-1201–1203 (1996) (Chapter 12. Public Trust

Doctrine). The Idaho example is discussed fully infra notes 266–71. Klass, supra note 14, at 718–19.

97. See Michael C. Blumm & Mary Christina Wood, The Public Trust Doc-trine in Environmental and Natural Resources Law (2013) (discussing application of the public trust doctrine to other resources, including wildlife and atmospheric resources). See also Juliana v. United States, 217 F. Supp. 3d 1224, 46 ELR 20072 (D. Or. 2016).

98. Ryan, The Historic Saga, supra note 3, at 576−78.99. Id. at 576.

1. Riparian Rights

Like the public trust doctrine, there is regional variation in the law of private water allocation. Water allocation is a fea-ture of state law, and there is a notably different valance to water allocation law in the eastern and western United States. Eastern states generally follow a modern version of the origi-nal British doctrine of “riparian rights,” which assigns cor-relative rights for reasonable use of water resources among all riparians along a watercourse.100 Under the riparian rights doctrine, reasonableness is contextual, and generally deter-mined by the total set of individual demands for the water.101 Many riparian rights jurisdictions have modernized the doc-trine to de-privilege riparian ownership, allowing water to be exported from the riparian tract and treating all users under the same rubric for assigning claims.102

In most respects, however, both traditional and modern riparian rights regimes take a public commons approach to allocating the resource. These laws treat the water sub-ject to allocation as a public commons or a common pool, allocating correlative rights in water in which users’ rights are limited by the rights of other users.103 As a rule, every-body has to share.104 For example, in 1888, the Connecticut Supreme Court in Mason v. Hoyle enjoined one mill owner from impounding a stream to the detriment of other down-stream mill operators.105 Emphasizing the reciprocal nature of rights and duties among riparian claimants, the court articulated the five core principles for “reasonably” allocat-ing water under the common-law “reasonable use” doctrine of riparian rights:

(1) All riparians have an equal opportunity to use the stream;

(2) No owner may use his own property so as to injure another;

(3) Adjudicators should consider the character and capacity of the stream;

(4) The burden of foreseeable shortages should be allocated fairly among all riparians; and

(5) Customary practices provide a foundation for evaluat-ing “reasonableness.”106

Modern riparianism jurisdictions continue to apply the cor-relative spirit of reasonable use riparianism in considering

100. See Christine Klein et al., Modernizing Water Law: The Example of Florida, 61 Fla. L. Rev. 403, 406 (2009):

The wetter eastern states . . . view the right to use water as an attribute of the ownership of riparian land. This is primarily a torts regime, prohibiting one riparian landowner from inflicting unreasonable harm upon another. In contrast, the arid western states historically have followed the prior appropriation doctrine, protecting the right to use water according to temporal priority of use.

101. Id. at 407.102. Ryan, The Historic Saga, supra note 3, at 576.103. Id.104. Klein et al., supra note 100, at 407.105. 14 A. 786 (Conn. 1888); 56 Conn. 255 (1888).106. Id.


the interests of all claimants on a waterway before assign-ing definitive rights to any. For example, in the 2005 case of Michigan Citizens for Water Conservation v. Nestle Waters North America, the Michigan Court of Appeals enjoined some—but not all—of the Nestle Corporation’s claims to withdraw water from a stream that also served boating, swimming, fishing, wildlife, and aesthetic purposes.107 The court emphasized its responsibility to fairly allocate water to preserve as many different uses of a waterway as possible.108

2. Prior Appropriations

Most states in the American West, however, allocate water rights under an appropriative rights regime based on priority in time—essentially ‘first come, first served.’109 Under this pure “prior appropriations” doctrine, rights to appropriate water from the public commons are not correlative, and ear-lier claims are not diminished by the needs of later-comers.110 Whoever is the first to take a defined quantity of water out of the watercourse and put it to “beneficial use”—defined as domestic or economically viable use—can claim a right to continue withdrawing the same amount of water for the same purpose, potentially indefinitely, and excluding all oth-ers who come later.111

In contrast to riparian rights, the prior appropriation doc-trine takes a privatization approach to resource allocation—the very opposite of the public commons approach.112 Not only does the doctrine reward early movers, granting them a protectable right to exclude those who seek to establish claims afterward, it rewards those who fully remove the water they claim from the waterway, leaving none behind for other uses. At least historically, an appropriator must literally withdraw water from the stream to perfect a claim; appropriative rights were not available for instream uses like fishing, swimming, for wildlife, or aesthetic purposes.

For example, in the 1882 case of Coffin v. Left Hand Ditch Co., the first case to formally apply the new doctrine of appropriative rights, the Colorado Supreme Court affirmed the rights of an irrigator removing water from the stream over the claims of a downstream riparian farmer.113 The irri-gator was the first to actually remove water from the water-course, creating a right to continue appropriating that water for himself regardless of the needs of a downstream user who had failed to perfect an appropriative claim.114 Similarly, in Empire Water & Power v. Cascade Town, the U.S. Court of Appeals for the Eighth Circuit applied the Colorado prior 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

107. 709 N.W.2d 174, 194−95 (Mich. Ct. App. 2005).108. Id.109. Klein et al., supra note 100, at 406 (“[T]he arid western states historically have

followed the prior appropriation doctrine, protecting the right to use water according to temporal priority of use.”).

110. Id. at 408.111. Id. at 408–09.112. Ryan, The Historic Saga, supra note 3, at 576–77.113. 6 Colo. 443 (1882).114. Id.

Creek Canyon and waterfalls around which the plaintiff resort town economy was centered.115

Some modern appropriative rights jurisdictions have added additional statutory criteria, including a public inter-est analysis, that require consideration of additional factors before new rights are assigned, but in most respects, the heart of the analysis remains the traditional rules of prior appro-priations.116 Many jurisdictions have also provided greater statutory protections for instream flow values, mitigating the enormous pressure to withdraw from the stream in order to receive a legally protected water right—but even so, very few states treat these the same way they do conventional appropriations, and only three allow private parties to hold them.117 A handful of especially confusing states, including California, allocate water under both riparian and appropria-tive rights regimes simultaneously.118

Accordingly, while the public trust doctrine requires the state to protect navigable waterways in trust for the public, the doctrines of private water allocation—especially West-ern prior appropriations—govern how the state gives away the waters within them. And while the public trust doctrine and riparian rights doctrine are grounded in a public com-mons theory of waterways, emphasizing correlative rights and shared duties, the prior appropriations doctrine tends toward a pure privatization model—first in time rights to exclude others.

For these reasons, a conflict between the public trust doctrine and private water allocation law was inevitable, especially in the arid West. There, state law applies a priva-tization approach to the allocation of water rights for water taken from waterways at the very same time that it applies a public commons approach to protect the underlying water-ways—which are composed of the very same water.119 These contrasting approaches set in motion a legal collision that was inevitable—and the conflict erupted most spectacularly at Mono Lake.

II. Building the Los Angeles Aqueduct

The Mono Lake case reached the California Supreme Court in the early 1980s, but the crisis that led to the case began

115. 205 Fed. 123 (1913).116. See, e.g., Shokal v. Dunn, 707 P.2d 441 (Idaho 1985).117. Barton Thompson et al., Legal Control of Water Resources 216 (5th

ed., 2013) (noting that while most states now allow some sort of appropria-tion to protect instream flows, only Alaska, Arizona, and Nevada allow private entitles to claim them).

118. In California, the owners of land abutting watercourses hold some traditional riparian rights, which coexist with the more abundant appropriative rights that are unconnected to riparian land ownership but subject to similar requirements of reasonable and beneficial use. See Thompson et al., supra note 117, at 200 (discussing California’s hybrid system of water law); see also Cal. Const. art. X, § 2 (confirming the protection of riparian rights and discussing the require-ment of beneficial use). However, prior appropriations remains the defining doctrinal approach in the state. See Thompson et al., supra note 117, at 208 (explaining how the doctrines interact with one another in California); see also John Franklin Smith, The Public Trust Doctrine and National Audubon Society v. Superior Court: A Hard Case Makes Bad Law, or the Consistent Evolution of California Water Rights, 6 Glendale L. Rev. 201, 207–09 (1984) (outlining the history of California’s dual water rights system).

119. Klein, supra note 100, at 406.


almost a century earlier, when the growing city of Los Ange-les first began to run out of water.

Potable water has long been considered “wet gold” in Los Angeles, the second most populated desert city on Earth.120 Located on the southern California coast, Los Angeles is one of the largest cities in the United States, with a metropolitan population of about ten million people.121 The Los Angeles River runs through the city, now mostly encased in concrete, but has approximately enough water to supply a population of only a few hundred thousand—a pretty large overdraft.122 For that reason, moving water to Los Angeles has been a Cal-ifornia state priority since the turn of the last century, when groundwater supplies began to run out.123

Los Angeles lies in the arid bottom of the state, far from the many Sierra Nevada rivers that furnish northern Cali-fornians with more abundant water resources.124 However, three snaking aqueducts converge at the city, delivering redi-rected water to the large population centers in and around Los Angeles.125 The Los Angeles Aqueduct, tapping the east-ern slope of the Sierra Nevada and Tehachapi Mountains, runs four hundred miles north from Los Angeles all the way to Mono Lake, which is due east of San Francisco, near the California-Nevada state line.126 Today, it is flanked by the Colorado River Aqueduct, which brings water from states to the East, and the California Aqueduct, which taps the wet-ter, western slope of the Sierra Nevada Range. But the Los Angeles Aqueduct is the oldest, the most colorful historically, and doubtlessly the most notorious of the three,127 and with it begins our story.

What follows in Parts II and III summarizes the Mono Lake story, told in even greater detail elsewhere,128 to bridge the historical and doctrinal material of Part I with further analysis of public trust issues and new litigation develop-ments in Parts IV and V. This part recounts the arrival of the Los Angeles Aqueduct, first in the Owens Valley and

120. Ryan, The Historic Saga, supra note 3, at 578. Among desert cities worldwide, only the Egyptian city of Cairo boasts a larger population. See Marc Reisner, Cadillac Desert: The American West and Its Disappearing Water 60 (New York: Viking Press, 1986).

121. U.S. Census Bureau, State & County QuickFacts: Los Angeles County, California, https://www.census.gov/quickfacts/fact/table/losangelescountycalifornia,US/PST045217 [https://perma.cc/2RCE-UQ6K].

122. See Kai Ryssdal, The Aqueduct That Gave Rise to Los Angeles, Marketplace (American Public Media), Mar. 31, 2015, http://www.marketplace.org/topics/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 estimated that natural sources serving the Los Angeles basin could support a population of 200,000 or so, in typical years.”); Reisner, supra note 120, at 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).

123. Ryan, The Historic Saga, supra note 3, at 578.124. See California: Physical Features, http://www.csun.edu/~cfe/maps/CA_Physi-

cal.pdf [https://perma.cc/H5K2-967Z].125. See Cal. Nev. River Forecast Ctr., CNRFC Interactive Map Interface: Rivers,

http://www.cnrfc.noaa.gov (last visited Apr. 17, 2015).126. See Louis Sahagun, “There It Is—Take It”: A Story of Marvel and Controver-

sy, L.A. Times, Oct. 28, 2013, http://graphics.latimes.com/me-aqueduct/ [https://perma.cc/VJU5-NJDY] (describing the path and history of the Los Angeles Aqueduct).

127. American Society of Engineers, First Owens River—Los Angeles Aqueduct, ASCE.org, https://www.asce.org/project/first-owens-river-los-angeles-aque-duct/ [https://perma.cc/S9LT-P2DP].

128. For the full story, see Ryan, The Historic Saga, supra note 3, at 578–603; Ryan, supra note 4, at Chapters III-V.

then the Mono Basin. It introduces the Mono Basin ecosys-tem and reviews the devastating impacts of water diversions through the Aqueduct to Los Angeles.

A. The Owens Valley

The Los Angeles Aqueduct now ends at Mono Lake, but that was not always so. The first place the city looked to for water was the Owens Valley, an unlikely oasis in the south-ern California desert, roughly halfway between Los Angeles and Mono Lake. The first few chapters of this story center on the Owens Valley and the devastating impacts that water diversions posed for the local environment and economy there over the first half of the 20th century. I have previously chronicled these chapters in vivid detail,129 because they are of cinematic proportions (indeed, this part of the story inspired the film noir classic, Chinatown,130 starring Jack Nicholson). While this Article will not re-tell the full Owens Valley story that is detailed in prior work,131 I’ll give just enough overview to provide needed context for the Mono Lake chapters that follow.

The ten-cent overview is that state and city leaders were seeking new water supplies for Los Angeles, and they real-ized that there was water to be had some two hundred miles to the north, in a valley capturing rainwater from two sur-rounding mountain ranges.132 The Owens Valley lies in a high-elevation desert, carved out by the improbably robust flow of the Owens River. The river winds south between the White Mountains to the east and the Sierra Nevada to the west, culminating in the vast but shallow Owens Lake.133 A thriving agricultural community dependent on the river developed alongside it, the only sweet water in the region.134 Los Angeles engineers realized that they could divert this water south to Los Angeles using only the force of gravity, rather than relying on the kind of expensive pumps that would be required to move water from elsewhere.135 How-ever, city leaders accurately predicted that the community 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.136

Agents for the city approached Owens Valley farmers pretending to be farmers, and they gradually bought up most of the farmland and associated water rights surround-ing the Owens River. When it was too late to stop them, they started diverting all available surface water south to Los Angeles.137 When they needed still more water, they began

129. Id. at 580−89.130. Chinatown (Paramount Pictures 1974).131. See supra note 127.132. Reisner, supra note 120, at 61–63.133. Id. at 61.134. Ryan, The Historic Saga, supra note 3, at 583.135. Id.136. Eric Malnic, The Aqueduct: DWP Smoothes Out Rough Edges on the 74-Year

Old Engineering Marvel, L.A. Times (Oct. 18, 1987), http://articles.latimes. com/1987-10-18/local/me-15046_1_los-angeles-river [https://perma.cc/7GMQ- ZL5J].

137. Id.


pumping ground water below their land and sent that south as well.138 Before the local community had really figured out what was afoot, the vast majority of the region’s water was being redirected to Los Angeles, and the Owens Valley was effectively divested of its water.139 Once the local farmers did figure things out, they were enraged; they famously dyna-mited the Aqueduct, and the National Guard was called in to restore order.140 Headline-making drama ensued, but at the end of the day, Los Angeles secured the water rights, the Owens River was diverted, and Owens Lake at its terminus was drawn dry.141

Today, there is an expansive salt sump where the majes-tic Owens Lake once anchored the valley and its wildlife, including vast populations of migratory birds that no longer appear.142 The Owens Valley tragedy is compounded by the fact that the exposed lakebed is composed of fine alkali salts that are toxic to breathe. These very fine particulates are con-stantly being churned up by the strong winds whipping off the vertical escarpment of the eastern Sierra Nevada, form-ing cancer-causing alkali dust storms.143 In fact, the Owens Valley often ranks as the most polluted place in the United States by particulate matter standards.144

B. The Mono Lake Basin

Some forty years after the Aqueduct first began tapping the Owens Valley, Los Angeles leaders realized that the growing city still needed more water.145 They also realized that there was a wealth of additional, unappropriated water in the next watershed up from the Owens Valley, just two hundred miles to the north—the Mono Lake Basin. This Section briefly introduces the unique place that became the focus of the famous public trust litigation in the Mono Lake case.

Mono Lake drains the eastern slope of the high Sierra Nevada crest, just east of Yosemite National Park.146 To call it a lake is almost a misnomer; it is more of an inland sea, twice the size of the city of San Francisco, five times deeper than the Great Salt Lake in Utah, and three times saltier than the

138. Id.139. 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 municipal project was won in Congress two weeks later.”).

140. See Scott Harrison, Dynamite Attacks on the Los Angeles Aqueduct, L.A. Times, Feb. 6, 2013, http://framework.latimes.com/2013/02/06/los-angeles-aque-duct-2/#/0 (last visited Apr. 17, 2015).

141. Ryan, The Historic Saga, supra note 3, at 586.142. See Marith C. Reheis, Dust Deposition Downwind of Owens (Dry) Lake,

1991–1994—Preliminary Findings, 102 J. Geophysical Res. (Atmospheres) 25999–26008 (1997) (describing the post-aqueduct deposits of minerals ac-cumulated in Owens Lake over thousands of years).

143. Sarah Kittle, Great Basin Unified Air Pollution Control District, Survey of Re-ported Health Effects of Owens Lake Particulate Matter, https://gbuapcd.org/District/Background/ReferenceLibrary/pmHealthEffects.html [https://perma.cc/5HMK-VU6Q].

144. U.S. Envtl. Prot. Agency, Owens Valley, CA Particulate Matter Plan, https://19january2017snapshot.epa.gov/www3/region9/air/owens/index.html [https://perma.cc/G5RH-7EKS] (describing Owens Lake as “the nation’s worst particulate air pollution problem”).

145. Ryan, The Historic Saga, supra note 3, at 596.146. See Sahagun, supra note 126.

Pacific ocean.147 Estimated to be between one and three mil-lion years old, it is roughly tied with Lake Tahoe as the old-est continuous lake in North America.148 Like Owens Lake, Mono Lake is a terminal lake, which means that water flows in, but there is no way for the water to leave except by sur-face evaporation.149 For those three million years, water car-rying trace elements and minerals has flowed into the basin and then evaporated off the surface, leaving those minerals behind to form a hypersaline body comparable to parts of the Great Salt Lake.150 As a result, the Mono Lake Basin is not only a very beautiful location, it is a unique ecosystem, the site of important scientific research, and home to important communities and cultures, including the Kutzadika’a Paiute who have lived there for generations.151

Mono Lake is part of a unique ecosystem. The lake is too salty for fish to survive, so the enormous lake contains not a single species of fish—but they are plentiful in the feeder creeks that carry snowmelt down from the adjacent Sierra Nevada into the lake basin.152 Instead, the lake is home to trillions of tiny brine shrimp, a species that exists only at Mono Lake.153 Brine shrimp populate the lake so thickly that if you took a coffee cup and scooped out some summer lake water, there could be as many as ten or even twenty shrimp in your cup.154 The lake is also home to hordes of tiny alkali flies, which are tasty as pupae and have long been a dietary staple of the local Kuzediaka’a Paiute community.155 The eco-system is thriving, but simple: the flies and shrimp survive on the base of the lake’s food chain, benthic algae, and virtu-ally everything else in the ecosystem—including the native people—survives by eating the flies and shrimp.156 There is

147. Compare Mono Lake Comm., Quick Facts, http://www.monolake.org/about/stats [https://perma.cc/PK4K-TT5M] [hereinafter Mono Lake Facts], with U.S. Census Bureau, San Francisco County, California, https://www.census.gov/quickfacts/fact/table/sanfranciscocountycalifornia/PST045218 [https://perma.cc/4SZ7-5QZ7] (noting San Francisco County’s land area is 46.87 square miles); Univ. of Utah, Physical Characteristics of Great Salt Lake, http://learn.genetics.utah.edu/content/gsl/physical_char/ [https://perma.cc/KD7W-AS7M] (comparing the depths of the Great Salt Lake and Mono Lake). See also John Hart, Storm Over Mono: The Mono Lake Battle and the California Water Future 5–7 (1996) (Univ. Cal. Press 1996).

148. See Hart, supra note 147; Tahoe Fund, Lake Tahoe Fun Facts, http://www.tahoefund.org/about-tahoe/recreational-paradise/ [https://perma.cc/ZQ3U-X7ZH]; Genetic Science Learning Center, Univ. of Utah, Physical Character-istics of the Great Salt Lake, https://learn.genetics.utah.edu/content/gsl/physi-cal_char/ [https://perma.cc/YFD7-Z2UE].

149. Cal. Dep’t of Water Resources, The Importance of the Salton Sea and Other Terminal Lakes in Supporting Birds of the Pacific Flyway 1 (Dec. 2004), http://www.water.ca.gov/saltonsea/historicalcalendar/docs/Ter-minalLakes.pdf.

150. See Hart, supra note 147, at 5–7; World’s Saltiest Bodies of Water, World Atlas, https://www.worldatlas.com/articles/the-world-s-most-saline-bodies-of-water.html [https://perma.cc/G3LD-CJUX] (noting salinity ranges of the Pacific Ocean at 3.5%, Mono Lake at 5-9.9%, and the Great Salt Lake at 5–27%).

151. See Hart, supra note 147, at 22–24 (describing the traditional lifestyle and culture of the Kutzadika’a).

152. See id. at 16.153. Mono Lake Comm., Brine Shrimp: Mono Lake’s Unique Species, http://www.

monolake.org/about/ecoshrimp [https://perma.cc/7HUT-D7VK].154. Ryan, The Historic Saga, supra note 3, at 590, 592–93.155. Mono Lake, 658 P.2d 711; Brine Shrimp: Mono Lake’s Unique Species, supra

note 153; Mono Lake Comm., Mono’s Alkali Fly the First Fly You’ll Ever Love, https://www.monolake.org/about/ecoflies [https://perma.cc/SB88-G86B].

156. Ryan, The Historic Saga, supra note 3, at 591–92.


not much stabilizing redundancy if any of the basic elements are compromised.

Mono Lake is thus a giant bowl of shrimp soup, deli-ciously garnished with alkali flies. As such, it attracts enor-mous flocks of migratory birds making their way along the Pacific Flyway from as far north as the Arctic and as far south as Latin America.157 The lake provides them a criti-cal sanctuary during the vast desert expanse of their jour-ney, allowing them to replenish themselves before continuing on for many more hundreds of desert miles.158 Millions of individuals from some three hundred species of birds come to the lake.159 One of the islands in the lake is the breeding ground for more than 85% of the California’s population of California gulls.160 The freshwater creeks that feed the lake are also important parts of the ecosystem, providing criti-cal regional fisheries, riparian habitat for wildlife, and local cultural values.161

Just south of the lake is the youngest volcanic range in North America: the Mono Craters, a short chain of 10,000-feet-high volcanoes.162 These volcanoes are relatively recent, and the chain ploughs right through the lake, creat-ing the black and white islands within it.163 The volcanically influenced chemistry and geology of the lake is so unusual that it has been an important research destination for study-ing underwater volcanism, and NASA has even conducted research at Mono Lake to imagine what life on other planets with unusual terrestrial profiles might look like.164

Unlike Los Angeles, however, the Mono Basin is not a major population center. The tiny town of Lee Vining is located on the western edge of Mono Lake, just below the 13,000-feet peaks of the High Sierra.165 The town was home to only 300 year-round residents when I lived there, but there is some commercially valuable local industry. A nearby pum-ice mine harvests commercially valuable rock from the Mono Craters.166 The brine shrimp plant on the western edge of the lake harvests Mono Lake shrimp to be sold as freeze-dried fish food.167 But the most important regional industry of all are the surrounding public lands, including national and state parklands that bring hundreds of thousands of visitors to the Mono Basin each year from around the world, all to

157. Kevin Neal, TED Case Studies, The Los Angeles Aqueduct and the Owens and Mono Lakes (Mono Case), http://archive.today/jhRr [https://perma.cc/LX3Q-NNR5].

158. Mono Lake Comm., Birds of the Basin: The Migratory Millions of Mono, http://www.monolake.org/about/ecobirds [https://perma.cc/3LG7-JALJ].

159. See generally Mono Lake Facts, supra note 147.160. See generally id.161. See generally id.162. History: Evidence of Recent Eruptions, Mono Lake Comm, http://www.mono-

lake.org/about/geovolcanic [https://perma.cc/JR6H-N73V].163. Id.164. NASA, Discovery of “Arsenic-Bug” Expands Definition of Life, NASA Sci-

ence News, Dec. 2, 2010, http://science.nasa.gov/science-news/science-at-nasa/2010/02dec_monolake/ [https://perma.cc/VCA8-MWNC].

165. See Lee Vining, California, City-Data.com, http://www.city-data.com/city/Lee-Vining-California.html (last visited Apr. 17, 2015).

166. See U.S. Bureau of Land Mgmt. Map of Mono Basin, available at http://www.blm.gov/style/medialib/blm/ca/pdf/bakersfield/geology.Par.25066.File.dat/ovm07_geology_maps.pdf.

167. See, e.g., Mono Lake, 658 P.2d 719; Brine Shrimp: Mono Lake’s Unique Species, supra note 153.

enjoy the stunning vistas, unique wildlife, fascinating geol-ogy, and cultural history of the area.168

C. The Mono Basin Extension

When I was a grunt-level Forest Service ranger at Mono Lake, I lived in the Ranger Station Barracks at the foot of Lee Vining Canyon, the glacially carved route into the High Sierra peaks at Tioga Pass. But practically across the street, there was an official and foreboding sign that warned, “City of Los Angeles—Private Property!” Indeed, many decades before, Los Angeles had already managed to acquire much of the privately available land there, in order to secure the riparian rights associated with this land and lay claim to the remaining water in the Basin under the prior appropriations doctrine.169

The city accomplished this feat during the 1940s, in a much less notorious way than it had acquired the Owens Val-ley water rights. Unlike the Owens Valley story, there were no tricks or foul play, and no city agents masqueraded as local farmers. Los Angeles simply announced its intentions to appropriate waters that had been flowing, hitherto wasted, into the useless salt lake, with plans to export it for more pro-ductive municipal use downstate.170 This was the easy part—the water flowing into the lake had never been diverted for a beneficial use cognizable under the doctrine of prior appro-priations, so it was, for all legal purposes, available for new claims by the first comer. And that comer just happened to be the city of Los Angeles.

City officials also began acquiring all riparian lands whose owners might someday lay claim to Mono Basin water. They accomplished this mostly by consensual sales, but where there was resistance, they made it known that they would invoke the powers of eminent domain that are statutorily available to California municipalities seeking additional water resources, even extraterritorially.171 Ulti-mately, the city did have to resort to eminent domain to acquire the property from a few local holdouts, and it pre-vailed in subsequent law suits.172

In this way, Los Angeles was able to acquire most ripar-ian rights in the Mono Basin and assert appropriative claims to the remaining water flowing into Mono Lake.173 How-ever, there was one additional obstacle before water could be sent south. Pursuant to California laws not yet in place when Los Angeles began taking water from the Owens Val-ley, the city also needed the State Water Resources Control

168. See Peter Fimrite, Mono Lake Efforts May Be Undone by Park Closures, SF Gate, July 24, 2011, https://www.sfgate.com/green/article/Mono-Lake-efforts-may-be-undone-by-park-closures-2353453.php (last visited Apr. 1, 2019) (describ-ing Lee Vining as a “community that relies on the 271,000 annual visitors who come to the area solely because of [Mono Lake]”).

169. Ryan, The Historic Saga, supra note 3, at 596−98.170. Id. at 594–95.171. Id. at 597.172. See also Andrew H. Sawyer, Changing Landscape and Evolving Law: Lessons

From Mono Lake on Takings and the Public Trust, 50 Okla. L. Rev. 311, 323–24 (1997).

173. Ryan, The Historic Saga, supra note 3, at 594−98.


Board to sanction the new withdrawals with a permit.174 Yet, the Owens Valley tragedy left the state water board genu-inely torn about allowing the same situation to take place at Mono Lake. Water board officials had just seen this sad story play out just a few hundred miles to the south. They worried openly about the same devastating harms befalling the Mono Basin, and they even memorialized these concerns in their final decision.175

Nevertheless, they granted the permits in full, conclud-ing that under existing California water law, their hands were tied.176 They believed that they had no choice but to approve Los Angeles’ requested permits, because the city planned to put unappropriated waters to beneficial use—and municipal use at that, the most privileged category of beneficial use.177 The Board read the California Constitu-tion and water statutes to require the facilitation of munici-pal access to needed water resources as their highest legal obligation.178 Accordingly, the Board issued the permits in 1940, although even as it did so, its members enshrined their grave hesitations in writing.179

With all legal approvals in place, the Los Angeles Depart-ment of Water and Power (DWP), the agency charged with securing and delivering water to the city, set to work complet-ing the Mono Basin Extension of the Aqueduct. The Aque-duct would eventually extend to farthest reaches of the Mono Basin mountain streams, and then shunt the water through an eleven-mile tunnel underneath the dormant Mono Cra-ters volcanoes that lay between Mono Lake and the upper reaches of the Owens River. Infamously, construction of the Mono Craters tunnel famously cost one man’s life for each mile of tunnel—showing that water was even more valuable than gold in California, worth its weight in human blood.180

Water began to flow south to Los Angeles, and the lake gradually began to decline. As it had for the past three million years, water in the lake continued to evaporate off the surface, leaving dissolved salts behind. However, the fresh water that once flowed down from the mountains to replenish it was now being diverted directly from those mountain creeks into a series of mechanical intakes.181 These intakes shepherded Mono Basin water under the Mono Crater volcanoes and into the headwaters of the Owens River, where it was routed into the original appara-tus of the Los Angeles Aquifer.

Thirty years later, when continued development in Los Angeles led the city to require still more water supply, DWP realized that there was potential for yet more harvest from the Mono Basin.182 Due to capacity limitations of the exist-

174. See William R. Attwater & James Markle, Overview of California Water Rights and Water Quality Law, 19 Pac. L.J. 957, 972–73 (1988) (noting that the Water Commission Act required permits to establish new rights in previously unappropriated water).

175. Ryan, The Historic Saga, supra note 3, at 595−96.176. Id.177. Mono Lake, 658 P.2d at 714.178. Id.179. Id. at 711, 714.180. See Hart, supra note 147, at 43.181. Ryan, The Historic Saga, supra note 3, at 596−97.182. Id.

ing infrastructure, not all available water was being diverted into the Aqueduct; some was still making it into the lake. Accordingly, in the early 1970s, DWP solved this problem by building a second aqueduct—the “Second Barrel” of the Mono Basin Extension.183 The Second Barrel was essentially another long tube paralleling the first one.184 With it in place, Los Angeles was able to import between 12−20% of its water supply from the Mono Basin, four hundred miles away.185

D. The Impacts of Diversions in the Mono Basin

Mono Lake had been slowly declining ever since the arrival of the Aqueduct, but when Second Barrel was installed in 1971, the lake began to decline much more quickly.186 In 1962, the lake had already lost twenty-five vertical feet from its original elevation before diversions began in the 1940s.187 After the Second Barrel went in, the lake lost nearly as much height in half the time. By the time of the litigation that fol-lowed in the early 1980s, the lake had lost forty-five vertical feet and half of its entire volume to water exports through the Aqueduct.188

As the lake declined, limestone tufa towers that develop beneath the surface became exposed.189 These otherworldly geological structures form at the mouth of underground springs, where calcium-rich fresh water meets the carbon-ates suspended in the alkaline lake water, precipitating out as calcium carbonate and growing only as high as the water level.190 As the lake receded, the decline could be marked by how much tufa had become exposed above the surface. One famous cluster of human-height tufa towers near the north shore became known as the “Benchmark” tufa, because they provided a useful visual benchmark of Mono Lake’s disappearance.191 In 1962, when the lake had lost twenty-five vertical feet, the tops of the Benchmark tufa were just beginning to appear over the surface. By 1968, they were exposed at the base, on a tiny island of relicted lakebed near the water’s edge. By 1995, after twenty years of augmented exports through the Second Barrel, they stood a mile from the new shoreline.192

The falling lake level caused formidable air quality prob-lems for the region, as lakebed that had been submerged for millennia became increasingly exposed and airborne.193 The bed of Mono Lake is similar to the toxic salt flats exposed after Owens Lake was drained, except that Mono Lake is much more alkaline, as it has been accumulating mineral deposits for exponentially more time. Satellite images from space revealed the emerging bathtub ring of white alkali salt

183. See Hart, supra note 147, at 56-57.184. Id. at 42–43.185. Mono Lake, 658 P.2d at 714.186. Ryan, The Historic Saga, supra note 3, at 590, 592–93.187. See Hart, supra note 147, at 49, 51; Mono Lake Comm., The Mono Lake Story,

https://www.monolake.org/about/story [https://perma.cc/8D88-KHJB].188. Mono Lake Facts, supra note 147.189. See Hart, supra note 147, at 50–51.190. Id.191. See id.192. See Andrew Ford, Mono Basin: Tufa, http://public.wsu.edu/~forda/tufa1.html

(last visited Apr. 17, 2015).193. See Hart, supra note 147, at 52–54.


flats as the lake declined,194 and the same air quality problems that plague the Owens Valley began to threaten the Mono Basin. Strong winds off the steep Eastern Sierra escarpment spawned toxic dust storms that left the Mono Basin in fre-quent violation of the Clean Air Act.195

Meanwhile, the decreasing amount of water in Mono Lake caused enormous problems for its ecosystem. When the lake lost half its water volume to unreplenished evapora-tion, that caused the salinity of the remaining lake water to double.196 The sharply increased salinity placed stress on the brine shrimp, who had long thrived in the lake. I remem-ber that they began to change color, turning slightly red-dish, possibly indicating parasitic infections to which they had become more vulnerable under stress. Their reproduc-tive rate slowed down, threatening the simple Mono Lake ecosystem and portending impacts for the millions of birds who came to the lake for nourishment during their long jour-neys.197 Negit Island, the small black volcano that had been the historic breeding ground for California gulls, became bridged to the north shore, exposing the gulls to the coyotes that regularly decimated the new chick populations.198 The mountain creeks were desiccated below the diversion points, destroying critical freshwater fisheries and riparian habitat.199

These environmental problems led to related issues for the local community, including economic losses, threats to pub-lic health, and general quality of life impacts.200 As it became increasingly clear that the Mono Basin ecosystem and com-munity were on the brink of collapse, a concerned group of scientists, environmentalists, landowners, and other local cit-izens decided to fight back.201 They formed the Mono Lake Committee to advocate for the protection and restoration of Mono Lake, ideally without transferring the same environ-mental problems to another remote location.202 They trav-eled the state, raising consciousness about the importance of water conservation and the impacts of water diversions on places like the Mono Basin, and advocating for legislation to protect it.203 “Save Mono Lake” bumper stickers became a common sight throughout California, and occasionally even farther afield.204

The Mono Lake Committee operated on many levels to save the lake, and one of the many ideas they pursued

194. See Maggie H. Villines, NASA’s Creature at Bottom of Mono Lake: Remnants of Previous Earth Inhabitants?, Maggie’s Notebook, http://www.maggiesnote-book.com/2010/12/nasas-creature-at-bottom-of-mono-lake-remnants-of-pre-vious-earth-inhabitants/ [https://perma.cc/RHA4-GTVR].

195. See Hart, supra note 147, at 154−55.196. Id. at 69.197. See id. (discussing shrimp reproductive issues).198. Id. at 72, 88.199. Id. at 54−56; Michael Blumm & Thea Schwartz, Mono Lake and the Evolving

Public Trust in Western Water, 37 Ariz. L. Rev. 701, 717–18 (1995).200. Ryan, The Historic Saga, supra note 3, at 597−98.201. See Mono Lake Comm., History of the Mono Lake Committee, http://www.

monolake.org/mlc/history [https://perma.cc/25YM-EVYG].202. See id.203. See id.204. Jane Kay, It’s Rising and Healthy: Three Decades Ago, a Bunch of College Stu-

dents Reported on and Worried About the Fate of Mono Lake. This Month, They Celebrated Its Recovery, SF Gate, July 29, 2006, http://www.sfgate.com/green/article/it-s-rising-and-healthy-three-decades-ago-a-2515840.php (last visited Apr. 17, 2015).

was the litigation that is the next chapter of the story. They centered their lawsuit on an idea inspired by a modest law review article, authored in 1970 by Prof. Joseph Sax.205 In the pages of the Michigan Law Review, Joe Sax was the first to recognize that the public trust doctrine could require the protection of environmental values associated with navigable waterways.206 His insight that state sovereign authority over navigable waterways could also imply sovereign responsibil-ity for environmental protection was entirely new at the time, but it would soon change the landscape of natural resource management and water governance in California.207

III. National Audubon Society v. Superior Court

Drawing on the insights of Professor Sax, the Mono Lake Committee filed a lawsuit claiming that the state could not allow the destruction of Mono Lake, a navigable waterway, because it would violate the public trust doctrine.208 Their lawsuit was eventually joined by a number of other environ-mental organizations and national and state agencies with interests in the case, including the National Audubon Soci-ety, which helped fund it.209 But Los Angeles vigorously defended the suit, claiming that there was no such violation, and that California law guaranteed their ongoing rights to continue diverting Mono Basin water.210 Reduced to their essence, and with rhetorical help from the Illinois Central case, here are the arguments they made.211

A. The Legal Arguments

The plaintiff argued that the state of California could not allow Los Angeles to continue water exports that were destroying Mono Lake, a navigable water held by the state in trust for the people.212 The city claimed appropriative rights to this water, but the plaintiffs maintained that these rights had been illegally granted in violation of the public trust doc-trine, which prevents the state from alienating or allowing the casual destruction of navigable waterways.213 The doc-trine acts as a limit on state sovereignty, they argued, and thus it must trump whatever appropriative rights the state might try to grant in dereliction of its duty as trustee.214

205. Joseph Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970).

206. Id.207. See id. I always make this point when teaching the Mono Lake case to law re-

view editors—and especially the most beleaguered ones—to remind them that what they are doing really is important, because law review articles really can change the world!

208. Mono Lake, 658 P.2d at 716 (“[P]laintiffs filed suit for injunctive and declara-tory relief in the Superior Court for Mono County on May 21, 1979.”).

209. Mono Lake Basin Water Right Decision 1631, 7, 19–20 (State of Calif. Water Res. Control Bd. Sept. 28, 1994), http://www.waterboards.ca.gov/publica-tions_forms/publications/general/docs/monolake_wr_dec1631_a.pdf ) (here-inafter Decision 1631).

210. Mono Lake, 658 P.2d at 716, 727.211. Id. For a fuller discussion of these arguments, see Ryan, The Historic Saga, supra

note 2, at 603–15; Ryan, supra note 4, at Chapters VI–VII.212. Id. at 716.213. Id. at 712.214. Id. at 712−14.


Because the state had an obligation to protect Mono Lake in trust for the public,215 the Water Board, acting for the state, lacked authority to permit Los Angeles to destroy it by drain-ing it away.216

The plaintiffs argued that the original 1940 diversion licenses had been granted in violation of the public trust doc-trine, because the Water Board had failed to consider the resulting harms to the public trust values it was obliged to protect at Mono Lake.217 To support their contention, they pointed to the Board’s own written record of its concerns at the time, in which they had wrung their hands about the apparent fact that there was nothing they could do to pre-vent the Owens Valley tragedy from being repeating at Mono Lake.218 These writings either demonstrated that they had not considered their obligations under the public trust doctrine, or that if they had considered them, they ignored them.219 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, which the Supreme Court had pointedly affirmed the state could not do.

Los Angeles had a lot at stake, and it ferociously defended the lawsuit. City leaders realized that if they lost, they not only stood to lose up to 20% of their already strained water sup-plies. In addition, the negative precedent the case might cre-ate could threaten their ability to import other critical water supplies from other distant, out-of-basin locations.220 From their perspective, Los Angeles had complied with both the letter and the spirit of California water law, which has always sought to facilitate municipal access to water resources for beneficial use in urban areas.221 They were even reluctant to implement the water conservation efforts urged by the Mono Lake advocates and incentivized by offers of state and federal funding.222 The prior appropriations regime may even have contributed to this decision, because as a “use-it-or-lose-it” system, a user who manages to conserve water risks forfeiture of their rights to use that water in the future.223

According to Los Angeles, then, the plaintiffs had it all wrong. The city was hardly violating the public trust doctrine, which protects only navigable waterways, and the city was drawing water not from the hypersaline lake, but Mono’s non-navigable feeder creeks.224 Moreover, Los

215. Id. at 728−29.216. Id.217. Id. at 712−14.218. Id. at 714.219. 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, which the Supreme Court had pointedly affirmed the state could not do. Ryan, The Historic Saga, supra note 3, at 568.

220. Id. at 604.221. Ryan, The Historic Saga, supra note 3, at 604, 606–07.222. Id. at 602 (2015).223. Id. See, e.g., Salt River Valley Water User’s Assn. v. Kovacovich, 411 P.2d 201

(Ariz. 1966) (concluding that an irrigator who implemented water conserving technology was not entitled to the conserved water under his appropriative right). Today, most prior appropriation states have amended their water laws to provide greater incentives for water users to conserve and protect them against forfeiture. For example, California now entitles those who conserve water to use, sell, or lease conserved water yielded by these efforts. Cal. Water Code § 1011.

224. Mono Lake, 658 P.2d at 716, 727.

Angeles argued, the public trust was the wrong doctrine to focus on. The dispositive law was that of prior appropria-tions, with which the city had diligently complied. It had sought and perfected permits under California’s statutory water code, and it was putting this water to municipal use, the highest echelon of beneficial use.225 (It might argue that the Illinois Central analogy would fail on this point, as this was nothing like giving away Chicago Harbor: the city is a public body, and this water was for the good people of Los Angeles to drink!)

Even if none of that were enough, however, the city argued that the plaintiffs could not rely on the public trust doctrine to interfere with appropriative water rights, because of the customary relationship between statutory and common law.226 It argued that the California Water Code, incorpo-rating the prior appropriations doctrine by statute, should be construed to override the public trust doctrine.227 After all, that is how the legal system ordinarily works: the com-mon law fills gaps until the legislature passes a relevant stat-ute, which effectively abrogates any contradictory common law.228

In essence, then, the Mono Lake advocates argued that the common-law public trust doctrine, in defining a core requirement of state sovereign ownership of waterways, should trump any contrary claims under the statutory law of prior applications—while Los Angeles argued that the prior appropriations doctrine, an abrogating act of statutory law, should trump the common-law public trust.229 The two parties deadlocked on the seemingly irreconcilable issue of which rule of law reigns supreme.

B. The Court’s Decision

The California Supreme Court issued a memorable opinion that both affirmed and disappointed the central arguments made by both sides. The prior appropriations statute does not foreclose the common-law public trust doctrine,230 it concluded, but neither did the public trust doctrine deter-mine the future of California’s massive and entrenched water works.231 Solomon-like, the court announced that neither of the two sets of law at issue trumps the other, and that the state must somehow find an accommodation between them.232

Its most significant holding, that the prior appropria-tions doctrine did not abrogate California’s public trust, was cause for celebration among the Mono Lake Advo-cates.233 But the court declined their invitation to exalt the public trust above all other considerations, holding that the entrenched legal and mechanical infrastructure con-

225. Ryan, The Historic Saga, supra note 3, at 604.226. Id. at 607−08.227. Mono Lake, 658 P.2d at 716, 727; Ryan, The Historic Saga, supra note 3, at

607−08.228. Ryan, The Historic Saga, supra note 3, at 603.229. Id.230. Id. at 712.231. Id. at 712, 727.232. Mono Lake, 658 P.2d at 716, 727. For fuller analysis of the court’s decision, see

Ryan, The Historic Saga, supra note 3, at 605–11.233. Mono Lake, 658 P.2d at 712.


structed to move water resources around California could not be wishes away, nor should it.234 The court observed that the state is dependent on such waterworks, and that it would be “disingenuous” to pretend otherwise.235 For that reason, it concluded, the law cannot casually dismiss the appropriative rights upon which holders, especially major metropolitan areas, have come to rely.236

Nevertheless, the court concluded that the public trust doctrine is also the law of the land, and that the state may not ignore the obligations it imposes.237 While the doctrine is designed to protect navigable waterways, the court rec-ognized that under circumstances like these, the waterway cannot be meaningfully separated from its non-navigable tributaries.238 The court found that the state had clearly failed to consider the public trust implications of the 1940 licensing decision, and since the state cannot neglect its public trust obligations,239 it must reconsider these licenses anew, weigh-ing Los Angeles’ legitimate needs for water against the sce-nic, ecological, and recreational public trust values at stake in the Mono Basin.240

Of note, the court did not provide much guidance about how, exactly, the state should proceed in balancing legitimate but incommensurate interests beyond the admonition that it must. Analytically, it is useful to consider whether the deci-sion creates a mere procedural requirement—a command to think carefully before deciding to compromise trust values, such as the “look before you leap” analysis required by the National Environmental Policy Act of 1969 (NEPA)241—or whether it creates a substantive command to protect public trust values. The procedural requirement is clear, as the deci-sion was premised on the state’s failure to consider public trust obligations at Mono Lake in the original licensing deci-sion. But was there more?

The decision is so understated on this point that it takes a careful reader to find it, but the court did in fact articulate a substantive, if weak, command—to protect public trust val-ues as much as possible.242 The court directed that “before state courts and agencies approve water diversions they should consider the effect of such diversions upon interests protected by the public trust, and attempt, so far as feasible, to avoid or minimize any harm to those interests.”243 Requiring the state to avoid harming trust values as much as is “fea-sible” leaves an awful lot to state discretion, but it does imbue a substantive dimension to California’s public trust doctrine that distinguishes it from the purely procedural requirements of NEPA. Such breadth of discretion begs questions about whether the command has real bite, but the court’s language does provide both a moral impetus for state action and a legal hook for public and judicial oversight.

234. Id. at 712, 727.235. Id. at 712.236. Id.237. Id.238. Id.239. Id.240. Id. at 728–29.241. 42 U.S.C. §§ 4321–4370(h) (2012).242. Mono Lake, 658 P.2d at 728.243. Id. (emphasis added).

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

After the California Supreme Court’s decision, the Water Resources Control Board spent the next ten years trying to calculate the proper balance between these competing inter-ests. With the benefit of substantial research and exhaustive public input, the Water Board eventually worked out a more limited schedule of diversions that would allow Los Angeles to continue taking water, so long as critical public trust val-ues at Mono Lake remained protected.244 Famously known as “Decision 1631,” the decision represented a compromise, not unlike the Supreme Court’s decision.245 It set a designated recovery level for the lake at 6,392 feet above sea level, a point roughly between the original, pre-diversion lake level (6,417 feet) and the level at the time of litigation (6,372 feet).246

This 6,392-foot recovery level was chosen for several rea-sons. It would stabilize the salinity of the lake at a level the brine shrimp could survive, thus protecting the fragile Mono Lake ecosystem.247 It would cover the most hazardous salt flats, limiting toxic dust storms and thus protecting the pub-lic health.248 It would also protect the scenic and recreational values of Mono Lake, and with it, the local communities and economies that depend on it.249 Finally, it would still allow Los Angeles to export needed water supply, so long as desig-nated benchmarks and recovery levels were met and main-tained.250 Eventually, when the lake reached the recovery level, exports would be unlimited, so long as the lake remains at the target level.251 Twenty-four years later, the target has still not been achieved; the lake currently averages around 6,381 feet of elevation, not quite halfway toward the goal.252 Unfortunately, California’s ongoing water woes and unpre-dictable weather patterns cast doubt on when, if ever, that goal will be met.

Decision 1631 marked a true turning point for the Mono Lake story, but an equally significant moment followed shortly thereafter. While the court’s decision set forth rules of law, it was the Water Board’s decision that would deter-mine the actual fate of both the city’s water diversions and the lake. All parties had awaited its ruling with bated breath over each of the previous ten years. Everyone knew that from the perspective of Los Angeles, giving up any claim to the water the city had once relied on would be a painful loss.253 Los Angeles had fought the Mono Lake lawsuit with all its might, because nothing made the city more vulnerable than the loss of access to water. Moreover, given the reasoning

244. Ryan, The Historic Saga, supra note 3, at 611.245. Decision 1631, supra note 209, at 154–55.246. Id. at 158.247. Id. at 77–78, 82.248. Id. at 3.249. Id.250. Id. at 156–57. Decision 1631 articulated a complicated series of interim

benchmarks and recovery levels with corresponding permissible diversions. Ex-ports were initially prohibited until the lake level reached the first benchmark, after which reduced exports would be permitted until the next benchmark was reached, and so on. Decision 1631, supra note 209.

251. Id. at 156.252. Mono Lake Levels 1979-Present, Mono Lake Committee, http://www.mono-

basinresearch.org/data/levelmonthly.php [https://perma.cc/NC5K-SCS7].253. Ryan, The Historic Saga, supra note 3, at 612–13.


behind the court’s decision, Los Angeles now had to worry not only about losing Mono Basin water, but potentially all of its water supply—much of which was imported from dis-tant watersheds.254

For that reason, when the Water Board ruled that the city would have to stop exporting all Mono Basin water until interim benchmarks were met, many perceived the decision not as a compromise between the interests of both sides, but as a serious loss for Los Angeles. The big question on everyone’s mind was whether the city would appeal the Water Board’s decision.255 That would have brought many more years of liti-gation, and even more serious environmental impacts for the Mono Basin during the interim. Many observers anticipated that Los Angeles, who had so bitterly fought the underlying litigation, would certainly appeal.

Yet, in a remarkable turnaround, the city changed course. Much like the citizens of Illinois in the Illinois Central story,256 the good people of Los Angeles voted in new city leadership, and those new leaders took office with a new platform and a new approach: Conservation.257

Rather than carrying on the same old battle, the city decided to cooperate with the Mono Basin advocates they’d been fighting in court, resolving to work together toward increased water conservation in the Los Angeles basin and restoration of the deteriorated resources of the Mono Basin.258 Instead of appealing Decision 1631, they took advantage of the state and federal grants that have been previously offered to implement large-scale water conservation projects.259 Through a series of programmatic conservation efforts, from facilitating industrial water recycling to subsidizing low flush toilet installation and other household-based limits on con-sumption, the city made remarkable progress—recovering through conservation alone the entire loss of water supply that had been coming from the Mono Basin.260 Los Angeles deserves enormous credit for its leadership in water conserva-tion and recycling ever since.

IV. Unpacking the Mono Lake Decision

The Mono Lake case not only saved Mono Lake, it established several important legal principles, interpreting the scope of public trust protections for different values, in application to different resources, and even the operation of the doctrine over time. But before assessing them, I’d like to consider the issue the court resolved that carries the most theoretical heft: the implications of the decision for the legal nature of the public trust doctrine itself.

254. Id. at 613.255. Id.256. See supra notes 60−85 and accompanying text, discussing Illinois Central.257. Ryan, The Historic Saga, supra note 3, at 612–13.258. Id.259. Hart, supra note 56, at 149.260. Mono Lake Comm., Mono Lake FAQ: Frequently Asked Questions About Mono

Lake, http://www.monolake.org/about/faq [https://perma.cc/UVC4-QQPV] (noting that Los Angeles conservation efforts have more than replaced water no longer diverted from Mono Lake).

A. The Nature of the Public Trust Doctrine

As noted, the court concluded that California’s statutorily adopted prior appropriations doctrine did not abrogate its common-law public trust doctrine, and that neither trumps the other.261 Both sets of legal requirements must be con-sidered together, and perhaps balanced against one another, when the state makes management decisions about water resources subject to the public trust like Mono Lake.262 Yet, this grand gesture of legal compromise highlights a singular feature of the public trust doctrine, and how it departs from the usual legal norms. Because at first blush, Los Angeles’s argument on this point seems correct—normally, statutory law does trump the common law.263

This seemingly paradoxical result makes sense, however, if the doctrine originated as a constitutive grant of author-ity and obligation regarding the management of public com-mons water resources. If the public trust doctrine serves to both grant and limit sovereign authority—granting the sov-ereign ownership of these resources but obligating it to man-age them in trust for the public—then, of course, it would be self-defeating to allow the state to abolish the limit leg-islatively.264 Some have argued that this gives the doctrine a quasi-constitutional foundation, an underlying legal con-straint that statutory law can build upon but not undermine, which makes it inherently different from more conventional, garden-variety common-law doctrines.265 Some have argued that this interpretation of the public trust doctrine is a nec-essary implication of the equal footing doctrine,266 which is also recognized as a principle of U.S. constitutional law267—even though, like the words “public trust,” the words “equal footing” appear nowhere in the U.S. Constitution.

While many jurisdictions have followed California’s model,268 it is important to note that at least one American jurisdiction, Idaho, has taken a markedly different approach,

261. Id. at 727.262. Id.263. Ryan, The Historic Saga, supra note 3, at 604.264. Id. at 573−74.265. See, e.g., Michael Blumm & Mary Christina Wood, “No Ordinary Lawsuit”:

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-stitutional limit on sovereignty”); Michael C. Blumm et al., Renouncing the Public Trust Doctrine: An Assessment of the Validity of Idaho House Bill 794, 24 Ecology L.Q. 461 (1997).

266. See, e.g., Michael Blumm & Lynn Schaffer, The Federal Public Trust Doctrine: Misinterpreting Justice Kennedy and Illinois Central Railroad, 45 Envtl. L. 257, 400–01 (2015); James R. Rasband, The Disregarded Common Parentage 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).

267. 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).

268. See, e.g., Lawrence v. Clark Cnty., 254 P.3d 606, 613 (Nev. 2011) (“The final underpinning of our formal adoption of the public trust doctrine arises from 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., 777 A.2d 1015, 1034 (N.J. Super. A.D. 2001) (noting that “tidally-flowed land has always been subject to the public trust doctrine . . . [which] provides that the sovereign never waives its right to regulate the use of public trust property”); Caminiti v. Boyle, 732 P.2d 989, 994 (1987) (“The state can no more convey or


prompting both political and scholarly controversy.269 After the Idaho Supreme Court issued a series of public trust deci-sions converging on the California Supreme Court’s interpre-tation in Mono Lake,270 the state legislature enacted a statute that expressly foreclosed this interpretive path.271 The legis-lation declared that the public trust doctrine did limit the state’s ability to alienate title to the beds of navigable waters, but that it had little impact beyond that,272 preventing the doctrine from impacting the allocation of prior appropriative water rights or state decisions about the commercial, agricul-tural, or recreational uses of public trust waterways.273

Environmental advocates and scholars condemned the Idaho statute as an illegitimate legislative move,274 but in fair-ness, that depends on the nature of the doctrine at its core. If the public trust doctrine does include a constitutive limit on sovereign authority over natural resource public com-mons, then yes, the Idaho Legislature’s move to abrogate this limit was ultra vires. That view is reflected in the California approach, mirrored in other states with strong common-law doctrines, such as Hawaii, New Jersey, and Washington, and those with express constitutional trusts, such as Pennsylva-nia.275 But the Idaho Legislature treated the doctrine as just another conventional expression of ordinary state authority, which is normally subject to legislative change. The Idaho example poses a strong challenge to the constitutive public trust model, indicating both the variability of the doctrine among U.S. jurisdictions and also this critical underlying theoretical dilemma.

The contest between the California and Idaho models is significant, because it reveals precisely this unresolved theo-retical question at the heart of the public trust doctrine. Is it a constitutive element of sovereign authority that cannot be casually dissolved by the one wielding that sovereign author-ity at any given moment in time? Or is it an expression of the state’s conventional police power to protect the public wel-

give away this jus publicum interest than it can ‘abdicate its police powers in the administration of government and the preservation of the peace.’”).

269. James M. Kearney, Recent Statute: Closing the Floodgates? Idaho’s Statutory Limi-tation on the Public Trust Doctrine, 34 Idaho L. Rev. 91 at 94 (1997); Blumm, Dunning, & Reed, supra note 265, at 472 (noting that the new statute “was the legislature’s response to judicial public trust declarations” in a series of Idaho Supreme Court cases).

270. See, e.g., Selkirk-Priest Basin Ass’n v. State ex rel. Andrus, 127 Idaho 239, 240 (1995) (suggesting that the public trust doctrine might be used to constrain harm from logging activities to an impacted water body); Idaho Conserva-tion League v. State, 911 P.2d 748 (Idaho 1995) (declining intervention by environmental groups to raise public trust issues where state ownership was not at issue, but suggesting in dicta that the public trust doctrine could take precedence over vested water rights). See also Kearney, supra note 269 at 95−96 (discussing the reaction of the legislature to these cases).

271. Idaho Code tit. 58, ch. 12 §§ 58-1201−1203 (1996) (Chapter 12. Public Trust Doctrine).

272. Id. at § 58-1201(4) and (6) (defines public trust doctrine as guiding alienation of the title of the beds of navigable waters and clarifies that the purpose of the act is to define limits on the public trust doctrine); id. at § 58-1203(1) (limits the public trust doctrine to “solely a limitation on the power of the state to alienate or encumber the title to the beds of navigable waters”).

273. Id. at § 58-1203(3) (does not limit the state to authorize public and private use or alienation of title to the beds of navigable waters if the state board of land commissioners determines that it is in accordance with Idaho statutes and con-stitution and for the purposes of navigation, commerce, recreation, agriculture, mining, forestry, or other uses).

274. See, e.g., Kearney, supra note 269; Blumm et al., supra note 265.275. See sources cited supra, notes 90 & 268.

fare, which can always be revisited by future legislative deci-sionmakers? If we assume that the public trust doctrine in every state evolved from a single, unified principle, then the contrary approaches taken by these states pose a thorny legal problem, because it would seem that they cannot both be right. Either the doctrine originated as a modifiable expres-sion of conventional state authority, or it has always been a less negotiable constraint on sovereign power.276

If California is right, then unlike the conventional com-mon law, the public trust doctrine represents a quasi-consti-tutional limit on sovereign authority that cannot be so easily legislated away. But if Idaho is right, then the doctrine is just another common-law rule that is forever subject to new sov-ereign consensus. Neither of these principles can reduce to the other without constitutional change. The Idaho approach could not legitimately evolve from the California model, nor could the California approach evolve from the Idaho model, because either path threatens conventional rule of law prin-ciples. At least in the United States, sovereign authority can-not free itself of constitutional constraints, nor does ordinary common law assume constitutive status through conven-tional common-law processes.

The disjuncture begs the question: which is it? And indeed, debate over the answer continues to unfold in centers of judi-cial, legislative, and executive decisionmaking across the nation, especially prompted by the unfolding atmospheric trust litigation.277 It demonstrates that the project of inter-preting the public trust doctrine remains a work in progress, and we are all bearing witness to this ongoing debate.

B. Doctrinal Extensions on Values, Tributaries, and Time

That statutory water allocation law did not displace the Cali-fornia public trust doctrine may be the most significant part of the holding as a matter of legal theory, but the decision also included several other important extensions of the doctrine, expanding the scope of doctrinal protections to environmen-tal values, non-navigable tributaries, and over time.278

1. Environmental Public Trust Values

The one for which Mono Lake is most often celebrated is the recognition that the public trust doctrine protects not only the navigation and fishing values traditionally associ-ated with the common-law doctrine but also the ecological,

276. If there is one, an alternative explanation would probably require the operation of something like the controversial “Constitutional Moments” higher lawmak-ing hypothesis offered by Prof. Bruce Ackerman to explain the adoption of constitutional principles outside the formal amendment process (justifying, for example, the canonization of Fourteenth Amendment principles within the U.S. constitutional framework notwithstanding problems with the post-civil war amendment process). Bruce Ackerman, We the People: Foundations 6–7, 110–11 (1991). Ackerman’s theory, of course, has itself been the object of intense criticism. See, e.g., Michael J. Klarman, Review: Constitutional Fact/Constitutional Fiction: A Critique of Bruce Ackerman’s Theory of Constitutional Moments, 44 Stanford L. Rev. 759 (1992).

277. See infra Part IV.278. For a fuller analysis, see Ryan, The Historic Saga, supra note 3, at 609−12;

Ryan, supra note 4, at Chapter VI.


scenic, and recreational values at stake at Mono Lake.279 The Mono Basin makes a great poster child for this proposition, because it is such a visually stunning place, with a unique and life-productive ecosystem, attracting hundreds of thou-sands of recreational visitors each year.

In this regard, however, Mono Lake is really just riding the coat-tails of a slightly earlier California case, Marks v. Whit-ney, in which the California Supreme Court first allowed for consideration of these extended environmental values.280 Mono Lake was the later comer, relying itself on the precedent set forth in Marks, but Marks was a relatively dry and technical case that adjudicated rights of access to privately-owned tidelands, about which ordinary people could not get terribly excited.281 Mono Lake has perhaps stolen Marks’s rightful thunder, but the Mono Lake story was so much more engaging that it has come to stand for this legal innovation in the public consciousness more compellingly than Marks was able to do.

2. Non-Navigable Tributaries

Notably, Mono Lake also extended the public trust doctrine to the non-navigable tributaries on which a navigable water-way relies.282 Spanning 45,000 acres and reaching depths of hundreds of feet, Mono Lake is unquestionably a navigable waterway.283 It has been commercially navigated since the time of the California Gold Rush, when it was used to trans-port logs from the Jeffrey Pine forest south of the lake to Bodie, one of the principal Gold Rush boom towns north of the Basin.284 Yet, Los Angeles was not diverting water directly from Mono Lake, whose salty waters are manifestly non-potable. Water was diverted from the freshwater Mono Basin creeks that flow down from the Sierra Nevada into the lake, and these steep, rocky creeks were not navigable at the point of diversion.285 Los Angeles attempted to leverage this distinction, but the Court held that the tributaries of a protected waterway must also be protected if the alternative would result in the destruction of the protected waterway.286

The extension of public trust protection to non-navigable tributaries at Mono Lake continues to play a pivotal role in the unfolding power of the doctrine to protect Califor-nia waterways. Most recently, the Mono Lake case proved foundational in a public trust decision extending the non-navigable tributary rule to groundwater.287 The Scott River in central California is a navigable river substantially fed by groundwater sources, and the river has declined seriously as these sources are increasingly exploited.288 The plaintiffs in

279. Ryan, The Historic Saga, supra note 3, at 606; Blumm, supra note 8, at 591; Frank, supra note 81, at 670; Timothy J. Conway, National Audubon Society v. Superior Court: The Expanding Public Trust Doctrine, 14 Envtl. L. 617, 631 (1984).

280. 491 P.2d 374, 380, 2 ELR 20049 (Cal. 1971) (expanding public trust protec-tions to ecological, habitat, open space, climatic, and scenic values).

281. See id.282. Mono Lake, 658 P.2d at 720–21.283. Hart, supra note 56, at 24–25.284. Id.285. Ryan, The Historic Saga, supra note 3, at 607−10.286. Mono Lake, 658 P.2d at 721.287. Scott River, Case No.: 34-2010-80000583 (Cal. 3d App. Dist., Aug. 29, 2018).288. Id. at 2.

the Scott River case sought to extend the Mono Lake rule to groundwater on exactly the same theory—that even though groundwater tributaries are non-navigable, withdrawals must be limited to protect the navigable waterway that depends on them.

In 2018, the California Court of Appeals affirmed that the state has the authority and obligation under the public trust doctrine to regulate extractions of groundwater that affect public trust uses in the Scott River.289 The decision was her-alded by environmentalists, who have long urged that water law better account for the interdependence of ground and surface water resources.290 However, it was equally decried by advocates for property rights holders, including the farmers and ranchers who had been withdrawing groundwater that was the subject of this litigation for commercial purposes.291 Later that year, when the defendant county appealed this decision to the California Supreme Court, the high court denied review, making the Court of Appeal’s decision the final word in the case.292

3. Duty of Ongoing Supervision

Finally, and perhaps most concerning to water manag-ers throughout the western United States, the California Supreme Court articulated in Mono Lake a duty of ongo-ing oversight for public trust resources.293 Conceptually, this was necessary to overcome the time lag between Los Angeles’ original grant of the diversion licenses in 1940 and the filing of litigation forty years later.294 Mono Lake was not the first case to apply the doctrine in the context of water rights—it followed a recent North Dakota case requiring consideration of the impacts of a new consumptive permit on existing and future supply295—but it was the first to do so retroactively. In the Mono Lake case, the court held that there is no statute of limitations on public trust claims; the state has an ongo-ing duty to supervise public trust resources and consider its responsibilities under the doctrine.296 This ongoing obliga-

289. Id.290. Richard Frank, California Court Finds Public Trust Doctrine Applies to

State Groundwater Resources, Legal Planet (Aug. 29, 2018), legal-planet.org/2018/08/29/california-court-finds-public-trust-doctrine-applies-to-state-groundwater-resources/ (reporting that the court declared that “California’s powerful public trust doctrine applies to at least some of the state’s overtaxed groundwater resources . . . [and] rejects the argument that California’s Sus-tainable Groundwater Management Act displaces the public trust doctrine’s applicability to groundwater resources”).

291. Pacific Legal Foundation, The State Has No “Public Trust” Power Over Ground-water, https://pacificlegal.org/case/environmental-law-foundation-v-state-wa-ter-resources-control-board/ [https://perma.cc/S9BG-GBZ2] (“As amicus on behalf of property owners and farmers, PLF asks the Court of Appeal to reverse this unwarranted, vast expansion of the public trust doctrine.”).

292. 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 been spilled over the implications of the decision for California water law and how it may affect the development and review of groundwater sustainability plans under California’s 2014 Sustainable Groundwater Management Act. Sus-tainable Groundwater Management Act, Cal. Water Code §§ 10720–10737.8, added by Stats.204, c. 346 (S.B. 1168, eff. Jan 1, 2015).

293. Mono Lake, 658 P.2d at 727.294. Ryan, The Historic Saga, supra note 3, at 606.295. United Plainsmen Ass’n v. N.D. State Water Conservation Comm’n, 247

N.W.2d 457, 463, 7 ELR 20117 (N.D. 1976).296. Mono Lake, 658 P.2d at 727–28, 732.


tion of oversight both allowed and required the Water Board to revisit its past decision, when that decision had failed to take account of public trust obligations.

In terms of practical impact, this might have been the biggest legal innovation of all. By implication, it meant that the state might have to revisit its Mono Lake diversion decision again in another forty years’ time—or sooner than that, or later—as circumstances evolve.297 Indeed, it could require the state to revisit any past decision involving a navigable waterway for the same reason, or if circumstances significantly alter the calculus underlying a past decision. At least in theory, all water allocation or management deci-sions impacting public trust waterways could be up for renegotiation, as would be all future decisions.298 The poten-tial ramifications of this duty of ongoing supervision sent shock waves through the arid west, where diverters feared what this could mean for the certainty of their rights and infrastructure.299 The prospect of revisiting management decisions made without consideration of public trust val-ues threatened to upend many seemingly settled allocation plans, because before the Mono Lake case called attention to them, public trust issues were unlikely to have been raised during the decisionmaking process.300

This point generated considerable controversy, and indeed, no state has adopted the full Mono Lake doctrine of ongoing oversight301 except Hawaii, a riparian rights state that oper-ates under a wholly different set of legal and hydrological con-straints.302 As noted, some states have gone out of their way to ensure that they do not follow in California’s footsteps, as the Idaho Legislature did in statutorily limiting the judicial evolution of the doctrine.303 Outside of the Mono Basin, even California has not made much use of the doctrine retrospec-tively, although the doctrine does now play an important role in prospective administrative decisionmaking.304

C. Post-Decision Pushback

In the context of the Mono Lake story, it is easy to paint a heroic portrait of the public trust doctrine. After the Mono Lake litigation, the doctrine emerged as a darling of the wider environmentalist community—the unlikely savior of a trea-sured place against the forces of those with far greater power. Many celebrated the David-and-Goliath result, in which a rag-tag collection of local scientists and bird watchers orga-nized around a kitchen table somehow defeated one of the largest and most powerful cities in the world.305 However, not everyone was so enamored with the doctrine. Important

297. Ryan, The Historic Saga, supra note 3, at 608.298. Id. at 611–12.299. Id. at 608−11.300. Id. at 609, 611−12.301. Id.302. In re Water Use Permit Applications for the Waiahole Ditch, 9 P.3d 409, 445

(Haw. 2000).303. See supra notes 269−74 and accompanying text (discussing Idaho’s legislative

abrogation of the common-law doctrine).304. See generally David Owen, The Mono Lake Case, the Public Trust Doctrine, and

the Administrative State, 45 U.C. Davis L. Rev. 1099 (2012).305. Ryan, The Historic Saga, supra note 3, at 603–09.

critiques soon emerged from advocates for private property rights, advocates for greater separation of powers, and even some environmentalists.306

The most vociferous critique comes from the property rights community. Property rights advocates worry about how quickly the modern public trust doctrine has devel-oped, and the new interests it has been interpreted to pro-tect.307 They decry the way they see the doctrine putting a fist on the scale on the side of public interests at the expense of established private interests in water resources protected by the trust.308 They are concerned about the trajectory of public trust disputes when the doctrine seems so malleable, encompassing new values as they become recognized—and especially if public trust decisions can be revisited over time through a duty of ongoing oversight.309

Another critique has arisen from those concerned with the legal process ramifications of the public trust doctrine.310 These critics worry about the separation of powers implica-tion of a doctrine that allows the judiciary to second-guess legislative and executive decisionmaking.311 They view judi-cial encroachment on policy decisions with skepticism, given that the judiciary is “the least democratic branch,” in com-parison with the others that are more directly beholden to electing constituents.312 Legal Process critics are troubled by the idea that unelected judges could countermand the popu-lar will, and that even in states where judges are elected, their decisions could maintain precedential value long after a judge leaves office.313 To these champions of the political branches, the public trust doctrine seems not only antidemocratic but potentially destabilizing to the rule of law.314

Finally, while most environmentalist love the public trust doctrine, the Mono Lake decision also produced an environ-mentalist critique, one that I have previously referred to as “The Green Dissent.”315 Leading that charge thirty years ago

306. For a fuller analysis, see id. at 617–22; Ryan, supra note 4, at Chapter VII.307. 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-fying the doctrine as a creature of property law that has been distorted by the courts beyond its proper boundaries); Barton H. Thompson Jr., The Public Trust Doctrine: A Conservative Reconstruction and Defense, 15 Se. Envtl. L.J. 47, 49 (2006) (suggesting reconstruction of the public trust doctrine in re-sponse to libertarian and property rights critiques); Lloyd R. Cohen, The Pub-lic Trust Doctrine: An Economic Perspective, 29 Cal. W. L. Rev. 239, 274–76 (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-flict between the public trust and private property rights and considering what type of property can, under competing notions of public trust, be considered 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-larly libertarian, property rights perspective, but supporting it as a natural limi-tation on government power, comparable to restrictions on eminent domain).

308. Ryan, The Historic Saga, supra note 3, at 615, 618–19.309. Id. at 615−19; Thompson, supra note 307, at 47, 48–49.310. See, e.g., Ryan, The Historic Saga, supra note 3, at 617–18; Thompson, supra

note 307, at 48–49; William D. Araiza, Democracy, Distrust, and the Public Trust: Process-Based Constitutional Theory, the Public Trust Doctrine, and the Search for a Substantive Environmental Value, 45 UCLA L. Rev. 385, 432 (1997).

311. Ryan, The Historic Saga, supra note 3, at 618.312. Id.313. See Huffman, supra note 307, at 533.314. Id.315. See, e.g., Erin Ryan, Public Trust & Distrust: Theoretical Implications of the Pub-

lic Trust Doctrine for Natural Resource Management, 31 Envtl. L. 477, 492–93


was Richard Lazarus, now a leading professor of environ-mental law at Harvard Law School.316 He famously criticized the environmentalist embrace of the doctrine, arguing that it would take the burgeoning environmental law movement—which had come of age barely ten years earlier in the 1970s—in the entirely wrong direction.317

Central to the Green Dissent was the position that it was a mistake to embrace the tools and vocabulary of property law to accomplish the stewardship-oriented goals of environ-mental law.318 As Lazarus explained, the public trust doc-trine emphasizes such property law concepts as public and private ownership of resources, trustees and beneficiaries, and so forth.319 Instead of infusing environmental law with property concepts, he maintained that environmental law should embrace stewardship concepts more consistent with new environmental statutes such as NEPA and the Clean Air and Water Acts, and the emerging principles of administra-tive law.320 The stewardship approach obliges the state to pro-tect valued resource independently from ownership, public or otherwise.321 After all, if we base environmental protec-tion obligations on public ownership, then what happens if a fickle public suddenly decides it would be more valuable to put up a parking lot?

Accordingly, not everybody loves the public trust doctrine as it stands, nor does everyone cheer where it may be headed. These critiques warrant mention, especially as new develop-ments push the doctrine into territory not previously recog-nized in U.S. law.

V. The Contested Future: An Atmospheric Trust

After Mono Lake, environmentalist appeals to the doctrine surged, although successes were mostly limited to contexts involving waterways.322 There have been important new applications in the context of water resources, including Cal-ifornia’s extension of the Mono Lake doctrine to groundwater tributaries in the Scott River case,323 the protection of public beach access in New Jersey,324 public walking rights along Great Lakes shores,325 and the protection of public drinking water from hydraulic fracturing under Pennsylvania’s consti-tutionalized version of the doctrine.326

(2001); Ryan, The Historic Saga, supra note 3, at 616, 620–21; Thompson, supra note 307, at 48–49; Richard J. Lazarus, Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine, 71 Iowa L. Rev. 631, 715–16 (1986); Araiza, supra note 310, at 387–89.

316. See, e.g., Lazarus, supra note 315, at 715–16.317. Id.318. Ryan, The Historic Saga, supra note 3, at 617−620.319. Lazarus, supra note 315, at 648, 642−43.320. Id. at 680−81 n.308, 684; Ryan, The Historic Saga, supra note 3, at 617−20.321. Id.322. Ryan, The Historic Saga, supra note 3, at 490.323. See supra notes 287−91.324. Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355, 363 (N.J. 1984).325. Glass v. Goeckel, 703 N.W.2d 58 (Mich. 2005); Scott River Litigation: Envtl.

Law Found. v. Cty. of Siskiyou, No. C083239 (Cal. Ct. App. 3d Dist. 2018); see also Ryan, The Historic Saga, supra note 3, at 625.

326. See Dernbach, supra note 91, at 464; see also Ryan, The Historic Saga, supra note 3, at 624.

Yet, all along, litigants and scholars have tried to under-stand the proper extent of the doctrine. Is it a background principle of state law that can function as a defense to takings litigation?327 If it applies to waterways, then which water-ways? All of them, or only some subset?328 And if it protects waterways as public commons against private monopoly or appropriation, then why not apply the same rule to other critical natural resources that are also susceptible to appro-priation or monopoly?329 Why not to fisheries? Why not to biodiversity? And perhaps most to the point, as we face down the increasingly violent effects of climate change, why not to the atmospheric commons?

Indeed, recall the original Justinian statement of the doc-trine that I introduced at the beginning of this Article, which explicitly named “the air” among the select public commons protected by the doctrine, together with the running water, the sea, and the shores.330

To that end, University of Oregon Prof. Mary Wood has advocated that the public trust doctrine should apply to the atmosphere.331 She argues that we should seek public trust protection for the air commons and the climate system bound up with that enables life on earth as we know it.332 Inspired by her scholarship, environmental advocates have launched the atmospheric trust litigation project,333 now spearheaded by the nonprofit organization, Our Children’s Trust,334 which has assisted youth plaintiffs around the coun-try in bringing suits and administrative action seeking public trust protection for the atmosphere.335 The named plaintiff in the most important of these cases, Juliana v. United States,

327. See supra notes 78–82 and accompanying text, discussing the use of the doc-trine as a defense to takings claims.

328. See, e.g., Kramer v. City of Lake Oswego, 285 Or. App. 181, 196-291 (2017) (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).

329. Ryan, The Historic Saga, supra note 3, at 622.330. See J. Inst. Proemium, 2.1.1., supra note 16; see also supra Section I.A.1.331. See generally Mary Christina Wood, Nature’s Trust: Environmental Law

for a New Ecological Age (2014).332. Id.333. See, e.g., Erin Ryan et al., Juliana v. United States: Debating the Fundamentals of

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 of Juliana v. United States) [hereinafter Ryan et al., Debating Juliana]; Blumm & Wood, supra note 265 (discussing Juliana v. United States and all other at-mospheric trust litigation and administrative actions); Randall S. Abate, At-mospheric Trust Litigation in the United States: Pipe Dream or Pipeline to Justice for Future Generations?, in Climate Justice: Case Studies in Global and Regional Governance Challenges 542 (Randall S. Abate ed., 2016); Ryan, The Historic Saga, supra note 3, at 629.

334. 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 present and future generations. . . . We lead a game-changing legal campaign seeking systemic, science-based emissions reductions and climate recovery policy at all levels of government. We give young people, those with most at stake in the climate crisis, a voice to favor-ably impact their futures.

335. See State Judicial Actions Now Pending, Our Children’s Trust, https://www.ourchildrenstrust.org/pending-state-actions [https://perma.cc/GX2C-W5F9] (describing pending actions in Alaska, Colorado, Florida, Maine, Massachu-setts, New Mexico, North Carolina, Oregon, and Washington); Other Proceed-ings in All 50 States, Our Children’s Trust, https://www.ourchildrenstrust.org/other-proceedings-in-all-50-states [https://perma.cc/LVC7-8R62].


was a teenager when she and eighteen other youth plaintiffs first filed the case in 2015.336

The plaintiffs in these cases maintain that the govern-ment holds the air commons in trust for the people, just as it does navigable waterways—and that both federal and state governments are failing their trust obligations to protect it from polluters, who are wrongfully using the atmosphere as a carbon sink.337 More importantly, they say, the atmospheric commons is a congestible resource that is being used up. The specific public trust argument is that by not regulating greenhouse gas pollution, the federal and state governments are allowing private appropriators to appropriate the air com-mons as a private dumping ground, and at the expense of the public interest for future generations in a livable world.338 The fact that the youth plaintiffs are, themselves, members of the future generation makes their claim all the more arresting.339

Juliana had been slated for trial before Judge Ann Aiken of the Federal District of Oregon in October of 2018, having defeated several motions to dismiss.340 However, the case was stalled after the Donald Trump Administration filed mul-tiple petitions for the writ of mandamus, a rare judicial rem-edy by which the Administration sought to convince a higher court to force Judge Aiken to reverse herself and dismiss the case.341 Two of these petitions were appealed unsuccessfully to the Supreme Court, but the latter received noteworthy attention in the order denying it.342 The Court once again declined the petition,343 but the order included language sug-gesting this was because relief might still be available from a preferable judicial forum, the Ninth Circuit.344 Despite

336. 217 F. Supp. 3d 1224, 46 ELR 20072 (D. Or. 2016). Together with other public trust scholars, I have participated in the professor amicus briefs on the side of the plaintiffs in this case.

337. Id. at 1233, 1253.338. Id. at 1233, 1245; see also Ryan et al., Debating Juliana, supra note 333 (Wood

on government responsibility for climate change); see also Ryan, The Historic Saga, supra note 3, at 625–31 (discussing the atmospheric trust project before the filing of Juliana v. United States, which corrected some of the strategic is-sues in the first batch of cases).

339. Ryan, The Historic Saga, supra note 3, at 627.340. See Juliana v. United States—Major Court Orders and Filings, Our Chil-

dren’s Trust, https://www.ourchildrenstrust.org/court-orders-and-pleadings [https://perma.cc/U66Z-JGY5] (listing all motions).

341. Id.; Adam Wernick, Circuit Court Declines to Halt Climate Case Brought by Youth Plaintiffs, Pub. Radio Int’l (Apr. 14, 2018), https://www.pri.org/sto-ries/2018-04-14/circuit-court-declines-halt-climate-case-brought-youth-plaintiffs [https://perma.cc/46LF-T6RE]; see also In re United States, 884 F.3d 830, 838 (9th Cir. 2018).

342. In re United States, 139 S. Ct. 452, 586 U.S. (No. 18A410, Nov. 2, 2018), https://www.scotusblog.com/wp-content/uploads/2018/11/18A410-In-Re-United-States-Order.pdf.

343. Id.344. The Court’s order implied that the Ninth Circuit had previously dismissed the

government’s efforts to dismiss the case for reasons that may no longer be valid:At this time . . . the Government’s petition for a writ of mandamus does not have a “fair prospect” of success in this Court because adequate relief may be available in the United States Court of Appeals for the Ninth Circuit. . . . Although the Ninth Circuit has twice denied the Government’s request for mandamus relief, it did so without prejudice. And the court’s basis for denying relief rested, in large part, on the early stage of the litigation, the likelihood that plain-tiffs’ claims would narrow as the case progressed, and the possibility of attaining relief through ordinary dispositive motions. Those reasons are, to a large extent, no longer pertinent. The 50-day trial was sched-uled to begin on October 29, 2018, and is being held in abeyance only because of the current administrative stay.

Id.

her previous decision to allow the case to go forward, Judge Aiken acknowledged the Supreme Court’s implied sugges-tion by certifying the question of whether the trial should proceed to the Ninth Circuit on interlocutory appeal.345 As this piece goes to press, the trial is once again on hold. After hearing arguments on the motion to dismiss in early June 2019, the Ninth Circuit is now deliberating whether to allow the case to go to trial.346

Juliana has generated enormous interest, but the case faces high legal hurdles.347 First, the plaintiffs must convince the federal judiciary that the obligations of the public trust apply to the federal government, which is best positioned to regu-late greenhouse gas pollution in the United States.348 In fact, the Supreme Court recently issued dicta emphasizing that the doctrine is strictly a matter of state law, which will be a challenge for the plaintiffs.349 Nevertheless, the plaintiffs seek to distinguish this dicta based on its context,350 and empha-size that if the public trust doctrine is an attribute of sover-eign authority, then it must be an attribute of all sovereign authority, and not just that at the state level.351 In addition, states beyond the original thirteen colonies that inherited the public trust doctrine as an attribute of sovereignty upon statehood must have received it through the sovereignty con-ferred by the federal government, suggesting a further basis for a federal trust obligation.352

Perhaps more importantly, the plaintiffs must convince the court that the public trust doctrine should apply to atmo-spheric resources, which would represent a substantial exten-sion of the doctrine as it has been thus far understood in the United States. Judge Aiken initially sustained the claim against a motion to dismiss on this ground, sidestepping the atmospheric trust issue by holding that the plaintiffs had also alleged cognizable claims of harm to coastal resources that are clearly protected by the public trust doctrine.353 However, the Juliana plaintiffs have bolstered this element of their law-

345. Order at 6, Juliana v. United States, No. 6:15-CV-01517-AA, 2018 WL 6303774 (D. Or. filed Nov. 21, 2018).

346. See Brandi Buchman, Inaugural Hearing of House Climate Group Gathers Young Voices, Courthouse News Serv. (Apr. 4, 2019), https://www.courthouse-news.com/inaugural-hearing-of-house-climate-group-gathers-young-voices/ [https://perma.cc/MU8D-SXMY] (reporting the anticipated trial date); Juli-ana v. United States—Youth Climate Lawsuit, Our Children’s Trust, https://www.ourchildrenstrust.org/juliana-v-us [https://perma.cc/LV8J-EQBM].

347. See, e.g., Alec L. ex rel. Loorz v. McCarthy, 561 F. App’x 7, 44 ELR 20130 (D.C. Cir. 2014), cert. denied, No. 14-405, 2014 WL 6860603 (U.S. Dec. 8, 2014) (dismissing a similar claim brought in the U.S. Court of Appeals for the District of Columbia (D.C.) Circuit in 2014); see also Ryan, The Historic Saga, supra note 3, at 628–30 (discussing legal hurdles for the atmospheric trust litigation, but before the filing of Juliana v. United States, which corrected some of the strategic issues in the early cases).

348. Ryan, The Historical Saga, supra note 3, at 628–29.349. See PPL Montana, LLC v. Montana, 556 U.S. 576 (2012).350. See Ryan et al., Debating Juliana, supra note 333 (presenting Rick Frank’s argu-

ment that Court’s passing statement in the PPL Montana dicta cannot resolve the larger issue in a fully different factual context).

351. See Juliana v. United States, 217 F. Supp. 3d 1224, 46 ELR 20072 (D. Or. 2016); see also supra Part IV.A. (discussing the public trust doctrine as a constraint on sovereignty); Ryan, The Historic Saga, supra note 3, at 574−75 (discussing scholarly interpretations of the public trust doctrine as an at-tribute of sovereignty).

352. Ryan, The Historic Saga, supra note 3, at 575, 45; Michael Blumm & Lynn Schaffer, The Federal Public Trust Doctrine: Misinterpreting Justice Kennedy and Illinois Central Railroad, 45 Envtl. L. 257, 399−405 (2015).

353. Juliana, 217 F. Supp. 3d 1224.


suit by adding an ambitious substantive due process claim for violation of their fundamental right to a livable climate, implicating both the Due Process Clause of the Fourteenth Amendment and the doctrine of unenumerated fundamental rights under the Ninth Amendment.354

In her dramatic ruling on the defendant’s motion to dis-miss, Judge Aiken originally held that the plaintiffs could move forward with their suit, concluding that there was a substantive due process right to a climate system capable of sustaining human life.355 Analogizing to the fundamental right to marry that the Supreme Court had recognized earlier the same year,356 Judge Aiken opined:

“[As to t]he idea is that certain rights may be necessary to enable the exercise of other rights, whether enumerated or unenumerated. . . . Exercising my ‘reasoned judgment,’ I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered 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 nor progress.”357

Importantly, Judge Aiken did not conclude that the plain-tiffs’ rights had actually been violated in this case, only that they would have the opportunity to try and prove that viola-tion in court. Even if the plaintiffs prevail at the district court level, the odds are stacked against them on appeal, especially if the case reaches the Supreme Court.358 Nevertheless, the recognition of a fundamental right to climate security would be a landmark ruling for the federal bench, if it is not extin-guished by a contrary decision by the Ninth Circuit in the summer of 2019.

On top of everything else, the case raises difficult ques-tions of remedy: if the plaintiffs actually prevail, what can they realistically expect a court to do to vindicate their claim?359 Courts ordinarily do not order legislative or execu-tive action. But these plaintiffs argue that climate change, and what they allege as the government’s complicity in cre-ating it, is no ordinary circumstance.360 In addressing the issue of redressability to achieve standing to bring their suit, the plaintiffs persuaded at least Judge Aiken that they had framed a violation of their rights that was the proper subject

354. Id.355. Id. at 1231–32; see also Ryan et al., Debating Juliana, supra note 333 (Wood

and Irma Russel discussing the fundamental right to a livable climate).356. Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (holding that the fundamental

right to marry under the Due Process Clause of the Fourteenth Amendment applies equally, across all fifty states, to same-sex couples as it does to opposite-sex couples).

357. Juliana, 217 F. Supp. 3d at 1231−32.358. Ryan et al., Debating Juliana, supra note 333 (Huffman on the assertion of a

positive right, Frank on the odds of overturning a decision favorable to the plaintiffs on appeal).

359. Juliana v. United States, 217 F. Supp. 3d 1224, 46 ELR 20072 (D. Or. 2016) (briefing on requested remedy).

360. Ryan et al., Debating Juliana, supra note 333 (Huffman and Wood debating the requested remedy); Brief for Petitioner at 23–28, Juliana v. United States, No. 18-36082 (9th Cir. filed Feb. 26, 2019).

of judicial review,361 and that the defendant agencies pos-sessed the power to redress their claim, using existing reg-ulatory resources, by developing a remedial plan to reduce greenhouse gas emissions.362

Juliana is not the first legal action premised on the atmo-spheric trust, nor will it be the last.363 Parallel atmospheric trust cases have been unfolding throughout the nation at the state and federal levels, with incremental judicial success364 and some noteworthy success through administrative pro-cess.365 One atmospheric trust petition successfully forced the creation of an executive climate action plan in Massa-chusetts.366 Atmospheric trust cases are also being brought in other countries, including Uganda and India,367 inspired not only by Juliana but by the 2015 Urgenda Foundation v. Netherlands climate lawsuit that, citing a sovereign obligation

361. Juliana, 217 F. Supp. 3d at 41–44.362. Id.; see also Blumm & Wood, supra note 265, at 71–72.363. Blumm & Wood, supra note 265, 67–77 (discussing state-based atmospheric

trust litigation).364. The early judicial cases show a mix of failures and incremental successes. Many

were dismissed on displacement, preemption, or political question grounds. E.g., Alec L. v. Jackson, 863 F. Supp. 2d 11, 15, 42 ELR 20115 (D.D.C. 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) (reversing lower court’s dismissal based on the political question doctrine, sep-aration-of-powers doctrine, sovereign immunity, and the court’s perceived lack of authority to grant requested relief ).

Later cases began to erode initially negative precedent, though few pro-duced the sought-after relief. See, e.g., Kanuk ex rel. Kanuk v. State of Alaska, Dep’t of Natural Res., 335 P.3d 1088 (Alaska 2014) (holding that the politi-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. 2015) (holding that the New Mexico constitution recognizes public trust protection of the atmosphere but concluding that claims must be based on 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. Ct. July 9, 2012), vacated, 438 S.W.3d 887 (Tex. App. 2014) (in a case later vacated on unrelated grounds, rejecting the agency’s determination that the 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”).

Several provide useful foundation for future success in atmospheric trust cases by recognizing the application of the public trust doctrine to the atmo-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, 2015) (expressly holding that the public trust includes air and atmosphere); Butler ex rel. Peshlakai v. Brewer, No. 1 CA-CV 12-0347, 2013 WL 1091209 (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).

365. Blumm & Wood, supra note 265, 73–77 (discussing administrative relief in Massachusetts and Washington).

366. 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. See Legal Updates: Sept. 16, 2016, Our Children’s Trust, https://www.our-childrenstrust.org/massachusetts/ [https://perma.cc/H27W-DG89]; see also Blumm & Wood, supra note 265, 272–74 (discussing Kain v. Mass. Dep’t of Envtl. Protection, 49 N.E.3d 1124, 1128 (Mass. 2016), the litigation leading to this executive order).

367. Mbabazi & Others v. Attorney Gen. & Nat’l Envtl. Mgmt. Auth., Civil Suit No. 283, High Court of Uganda Holden at Kampala (Sept. 20, 2012) (de-cision pending), http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2012/20120920_Civil-Suit-No.-283-of-2012_complaint-1.pdf; Pandey v. India, National Green Tri-bunal at Principal Bench, New Delhi (2017) (undecided), http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us- case-documents/2017/20170325_Original-Application-No.-___-of-2017_petition-1.pdf; see also Climate Litigation Databases, Sabin Center for Climate Change Law (2019), http://climatecasechart.com/?cn-reloaded=1.


to protect the environment, required the Dutch government to reduce greenhouse gas emissions by 25%.368

It will be fascinating to see how Juliana and the other atmospheric trust claims unfold. Many have speculated that these cases simply reach too far from established legal norms, and that they will inevitably fail as they progress through legal channels toward the Supreme Court, even if they succeed at trial or on appeal to the Ninth Circuit.369 The claims implicate each of the critiques raised after the Mono Lake case: property rights advocates worry about the ever-expanding doctrine that eats all in its path, environmental critics worry about the bad precedent that losses along the way might create for more promising avenues of regulating greenhouse gases, and legal process critics worry about the separation of powers implications of the requested remedy.370

Nevertheless, the Juliana case recalls of one of the most powerful features of the public trust doctrine, one that impli-cates the separation of powers controversy, but with a twist. It is the way that the doctrine enables citizens to use the levers made available by the horizontal separation of pow-ers to increase their efficacy in democratic participation, by invoking judicial review of legislative or executive action that violates legal rules. This is a feature of our democratic design, hallowed in the United States since Marbury v. Madi-son.371 The Juliana plaintiffs may not succeed in their law-suit, but the very act of bringing it, and generating so much public support for their claim, puts pressure on the political branches in ways that amplify their voices as individual vot-ers and constituents.372

For example, the Juliana case has generated grassroots support from over 36,000 individual young people, each of whom signed on to an open amicus brief supporting the plaintiffs’ claims, and the list of supporters continues to grow.373 The children’s brief, as it has become known, begins:

Children are people and citizens. The Constitution protects the fundamental rights of children as fully as it does the rights of adults. The Constitution states clearly it intends to “secure the Blessings of Liberty to ourselves and our Poster-ity.” We are the Posterity the Constitution protects. Scien-tific studies show that government actions today, including its actions of authorizing greenhouse gas discharges and sub-sidizing fossil fuel extraction, development, consumption, and exportation, imperil plaintiffs’ constitutional rights to

368. C/09/456689/HA ZA 13-1396 (Neth. June 24, 2015), https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2015:7196.

369. E.g., Ryan et al., Debating Juliana, supra note 333 (Huffman critiquing the claims on these grounds).

370. Ryan, The Historic Saga, supra note 3, at 621−22 (and sources cited therein).371. 5 U.S. (1 Cranch) 137 (1803) (establishing the principle that courts may strike

down government actions that violate constitutional rules).372. Ryan, The Historic Saga, supra note 3, at 630−31.373. Brief of Amicus Curiae Zero Hour on Behalf of Approximately 32,340 Children

and Young People in Support of Plaintiffs-Appellees, Juliana v. United States, 217 F. Supp. 3d 1224, 46 ELR 20072 (D. Or. 2016), https://www.joinjuliana.org/joinjuliana_files/201931FinalYoungPeoplesBrief.pdf (last visited Apr. 10, 2019); see also Zero Hour Movement, Join the Youth Legal Action for a Safe Climate, https://www.joinjuliana.org [https://perma.cc/EV8Y-3ENT] (not-ing that the brief was filed with over 36,000 names in support, and inviting continued signatories while the case works its anticipated way toward the Supreme Court).

life, liberty, and property. The government’s fossil fuel poli-cies and actions threaten to push our climate system over tipping points into catastrophe. We ask the Court to grant plaintiffs the opportunity to try their case and prove the harms caused and intensified by governmental action.374

On the matter of the atmospheric trust, the brief continues:

As the Constitution protects our fundamental rights, the Public Trust Principle protects our inheritance of resources. It articulates the legal duty of the government, as the trustee of property held in common, to conserve our vital natural resources. The government holds and manages the public trust for us, the trust beneficiaries. The government is obli-gated to protect our inheritance of, and refrain from sub-stantially impairing and alienating, the natural resources upon which all life and liberty depend. “The beneficiaries of the public trust are not just present generations but those to come.”375

Widespread attention generated by cases like Juliana and Urgenda, together with other focal points of youth activism, including the leadership of Swedish teenager Greta Thun-berg, have inspired a growing chorus of youth climate pro-tests worldwide, including the International Climate Strike on March 15, 2019, in which young people from every inhabited continent marched out of school to protest their governments’ failures to respond to the increasing urgency of scientific climate predictions.376 Even if Juliana is dis-missed by the Ninth Circuit, the case has helped coalesce a youth movement that no motion to dismiss can undo.

Indeed, the atmospheric trust cases reveal that “the separa-tion of powers” is not the same thing as those powers working in complete isolation.377 Citizens’ appeal to the judicial pro-cess is rightly part of the wider political process. The ability to seek judicial review is especially important when citizens have felt silenced within the wider political process for unjust reasons, such as invidious discrimination378 or government corruption.379 The public trust doctrine thus facilitates a con-versation between the three branches of government about the disposition of critical public natural resource commons

374. Brief of Amicus Curiae, supra note 373, at 5–6.375. Id. (quoting Ariz. Ctr. for Law in the Pub. Interest v. Hassell, 837 P.2d 158,

169, 23 ELR 20348 (Ariz. Ct. App. 1991)).376. 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-ment, inspired by the actions of 16-year-old Swedish environmental activist Greta Thunberg, spanned more than 100 countries and 1,500 cities, where students gathered in the streets and at their state capitols to call for action.”); see also Pictures From Youth Climate Strikes Around the World, N.Y. Times (Mar. 15, 2019), at https://www.nytimes.com/2019/03/15/climate/climate-school-strikes.html:

From Sydney to Seoul, Cape Town to New York, children skipped school en masse Friday to demand action on climate change. It was a stark display of the alarm of a generation. It was also a glimpse of the anger directed at older people who have not, in the protesters’ view, taken global warming seriously enough.

377. Ryan et al., Debating Juliana, supra note 333 (Ryan opening statement).378. E.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954).379. See supra notes 60−85 and accompanying text, discussing the Illinois Central.


in which all citizens have a stake, but which are often man-aged far beyond the reach of the average voter’s influence.380

Viewed this way, it is not that the judiciary is antidemo-cratically second-guessing the political branches—the sec-ond-guessing at issue is by citizens legitimately invoking their rights to the judicial process. And especially for the Juliana plaintiffs and supporters, many of whom are too young to vote, it is one of their only means of democratic participation.

Viewed this way, the role of judicial review within the political process is a gambit of good governance. We would not want every disgruntled voter to make a federal case out of every grievance, and to that end, the rules of standing generally operate to screen out those with least merit. But the gambit succeeds if the claim is legitimate enough to withstand procedural barriers, and compelling enough to motivate public support within the wider political process. In the ongoing and recursive dialectic between law and culture, a compelling case can sometimes change the con-versation, even if it does not immediately change the law. For another example, consider the evolution of the Supreme Court’s gay rights jurisprudence over the last thirty years—a stunning progression that tracked the evolution of cultural norms, themselves influenced by compelling examples of civil rights litigation.381

Juliana and the other atmospheric trust cases may yet prove a successful gambit for the plaintiffs, even if they fail to prevail in the judicial process. The children bring-ing these suits have generated unusual public support and international interest.382 Something about their argument has struck a chord with many ordinary people, motivating greater interest in the efficacy of good climate governance to protect the atmospheric commons on which we all depend. The Juliana public trust claim reaches them in the same way the Mono Lake case reached ordinary people who never mus-tered excitement about the important public trust legal devel-opments in Marks.383 And indeed, this is how our political process, incorporating all three branches of government, is supposed to work. As in all complex policy dilemmas, the procedural mechanics of governance are reinforced by politi-cal safeguards.384

Conclusion: Navigating Public and Private Interests in Natural Resource Commons

The public trust doctrine has long played a critical role in helping us navigate the protection of public and private inter-ests that collide in natural resource commons. All public resource commons are complicated by the demands that indi-

380. Ryan, The Historic Saga, supra note 3, at 630−31.381. Compare Bowers v. Hardwick, 478 U.S. 186 (1986) (upholding state laws

criminalizing gay sex), with Lawrence v. Texas, 539 U.S. 553 (2003) (overturn-ing Bowers), and Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (establishing a constitutional right to gay marriage).

382. See, e.g., Wernick, supra note 341.383. 491 P.2d 374, 380, 2 ELR 20049 (Cal. 1971) (expanding public trust protec-

tions to ecological, habitat, open space, climatic, and scenic values).384. Cf. Jesse H. Choper, Judicial Review and the National Political

Process (1980) (discussing the importance of political safeguards in good governance).

viduals place on their share of a common pool. Sometimes, the common pool is more easily disaggregated, as when one individual takes a quantity of water from a waterway, or a single member from a species of biodiversity. Other times, it may be harder to disaggregate commons values, as when one individual erects a weir preventing all else from navigating the waterway, or in the climate context, where one polluter’s use of the atmosphere as a carbon sink equally compromises everyone else’s share. But in all cases, over-exploitation of the commons by some individuals can compromise the resource for all—or in the worst case, destroy it.

The public trust doctrine represents one of the earliest known mechanisms for regulating natural resource commons problems. It first did so by recognizing these resources as public commons, belonging to everyone equally, as set forth in ancient Roman law.385 Later, it added recognition of the sovereign authority to maintain these resources for the pub-lic, as affirmed by early British386 and American law.387 More recently, it has been understood to confer sovereign respon-sibility to affirmatively protect these resources for the public, as recognized by the Mono Lake case and its progeny.388

As the California Supreme Court recognized in Mono Lake, the doctrine does not foreclose private use of public commons. The Mono Lake case affirmed a variety of legiti-mate private uses of the water commons at issue there—rec-reational use, scientific inquiry, commercial exploitation, and sheer aesthetic beauty, among others—so long as these pri-vate uses did not compromise the sustainability of the under-lying res, the thing held in trust. For example, the public trust doctrine did not prevent the state’s decision to allocate Mono Basin water for municipal use in Los Angeles—so long as doing so did not destroy the public trust values at Mono Lake. The Scott River case does not forbid all groundwater extraction in the basis, so long as public trust values in the river are maintained. The Juliana plaintiffs are seeking a cli-mate action plan that balances legitimate needs for economic development against fundamental rights to climate security. But the Mono Lake case and its progeny leave much to resolve in interpreting the role of the public trust doctrine in protect-ing resource commons going forward.

Each of these cases raise the question: to what resources should the doctrine apply? Mono Lake applied the doctrine squarely within the traditional public trust purview of navi-gable waterways—but the case extended the protections of the doctrine to new environmental values, farther up the watershed, and farther out in time. The Scott River followed directly from Mono Lake, applying the new doctrine pro-tecting non-navigable tributaries of a dependent navigable waterway—but it extended that rationale to the new con-text of groundwater management. The Scott River decision is satisfying to water scholars who critique groundwater law as long hampered by scientifically uninformed legal doctrines that artificially separate hydrologically intertwined ground

385. See supra Part I.A.1.386. See supra Part I.A.2.–3.387. See supra Part I.A.4.–6.388. See supra Part III–IV.


and surface waters—yet it threatens settled expectations cre-ated by the old legal regime. Meanwhile, the Juliana case takes the same public trust rationale—sovereign obligation to protect a critical public commons from private misappro-priation—and applies it in a wholly new context. The idea of treating the atmosphere as a public commons is as old as Justinian, but applying the public trust doctrine to protect it is a relatively new idea.

Next, who should administer the public trust? A defin-ing feature of the common-law doctrine is that it empowers ordinary citizens to seek redress for public trust violations in court. Separation-of-powers critics worry that the doctrine thereby overpowers the judiciary, enabling it to override leg-islative policymaking. Yet, this critique may be overblown, not only because it discounts the way that judicial review further empowers democratic participation, but also because traditionally the law of trusts has always been interpreted and enforced by courts. If the trust analogy holds, then who better than judges to oversee the public beneficiary’s interest in trust resources against self-serving or neglectful manage-ment by the legislative trustee? The government is always under a duty to protect the public; it is the veritable pur-pose of government, and the charge underlying the police power from which it generally operates. But while govern-ment decisions under the police power get a lot of judicial discretion, some public trust obligations are less open to interpretation. Courts may be the best venue for evaluat-ing government decisions that may transgress the acceptable margins of interpretation.

Finally, what is the nature of the constraint, and to what authority does it apply? These are, perhaps, the most inter-esting and difficult questions raised by the Mono Lake case and its progeny. The Mono Lake case established the nature of the trust as something beyond the ken of ordinary com-mon law, without fully resolving the question of its consti-tutive status. As discussed in Part IV, the extent to which the common-law doctrine exceeds conventional common-

law limitations remains debated, although most states that have addressed the matter follow the California approach of placing it beyond the reach of ordinary statutory abroga-tion. This approach seems most consistent with a doctrine that meaningfully constrains sovereign authority over public trust resources—limiting what the sovereign can and cannot do—because a constraint that the sovereign can easily extin-guish has no real force.

As for whose sovereign authority it constrains—state or federal or both—the most theoretically and historically con-sistent answer is that it constrains all sovereign authority. There is no doubt that the doctrine constrains the states, based on centuries of U.S. case law. But if it is appropriately understood as a limit on sovereign authority over public commons, then as an intellectual matter, it should not matter whose sovereign authority is at issue—it constrains whatever authority governs the relevant commons. This answer also best accounts for the history of state and federal turn-taking on managing public trust resources, given that most states inherited their trust-impressed resources through the intervening medium of fed-eral sovereign authority, by which the U.S. government held these resources until they could be disbursed to new states.389 The Supreme Court’s dicta in PPL Montana characterizing the doctrine as a feature of state law is definitely problematic for claims that depend on a federal trust—but that passing, out-of-context reference should not be authoritative when the Court properly considers this issue for the first time.390 As it may well do in the next few years, if the Juliana case or a related claim makes it to the High Court.

In the meantime, the state and lower courts—and increas-ingly, legislative and executive actors—will continue to shep-herd the protection of public trust values in the separate but interlocking roles within the political processes of good gov-ernance. The doctrine will continue to help us navigate the inevitable clash between public and private interests in natu-ral resource commons, a clash that is destined to intensify with the increasing pressure we are putting on public com-mons resources like air, water, biodiversity, and climate—and perhaps other commons the law has yet to address. So long as the doctrine is functioning, under whatever operative legal theory, we can all take comfort in the knowledge that critical public commons will have a legal sentry and safeguard.

389. 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.

390. See Ryan et al., Debating Juliana, supra note 333 (Frank discussing the PPL Montana dicta).

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