11 history, theory and policy considerations in applying the public trust doctrine to groundwater...
TRANSCRIPT
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History, Theory and Policy Considerations in applying the Public Trust Doctrine
to Groundwater
Sacramento Groundwater Authority
Meeting of the Board of DirectorsAugust 8, 2013
Tony Francois
Staff Attorney, Pacific Legal Foundation(916) 419-7111, [email protected],
www.pacificlegal.org
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Proposed:
The Public Trust Doctrine does not apply to percolating groundwater and, therefore, provides no basis for state or local regulation of groundwater production and use
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Takeaway PointsThe Public Trust Doctrine as now interpreted by the
California courts has essentially no historical support
Expansion of the Public Trust Doctrine is bad for legal and policy reasonsLegal reason: expands the scope of “background
principles” of property law in a way that undercuts settled property expectations and may lead to takings liability
Policy reason: usurps the role of the legislature to make important public resource decisions
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The story according to the California Supreme Court
“From this origin in Roman law, the English common law evolved the concept of the public trust, under which the sovereign owns all of its navigable waterways and the lands lying beneath them as trustee of a public trust for the benefit of the people. The State of California acquired title as trustee to such lands and waterways upon its admission to the union.” Nat’l Audubon Soc’y v. Superior Court, 33 Cal. 3d 419, 434 (1983).
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Sources
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 (1975).
Patrick Deveney, Title, Jus Publicum, and the Public Trust: An Historical Analysis, 1 Sea Grant L.J. 13 (1976).
James L. Huffman, Speaking of Inconvenient Truths---A History of the Public Trust Doctrine, 18 Duke Envtl. L. & Pol’y Forum 1 (2007).
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Did the public trust existin Roman law?
“Things 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 part of the seashore while he abstains from damaging farms, monuments, and buildings, which are not in common as the sea is.” Institutes 2.1.1
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The real meaning of“things common to all” in
Roman law“‘[T]hings common to all’ were so in part
because of the physical nature of the particular resources and the limits of technology.” (Huffman).
“In actuality, the sea and the seashore were ‘common to all’ only insofar are they were not yet appropriated to the use of anyone or allocated by the state. . . . It was their character as ‘things common to all’ that made the sea and seashore capable of individual appropriation.” (Deveney).
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“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 occupier.” (Digest 41.1.30.4).
“What a person builds on the seashore becomes his, because beaches are not public in the same way as those things which are in the patrimony of the people, but as those things which were at first produced by nature and which have not yet come into the ownership of anyone. . . .” (Digest 41.1.14).
“Roman law was innocent of the idea of trusts, had no idea at all of a ‘public’ . . . as the beneficiary of such a trust, allowed no legal remedies whatever against state allotment of land, exploited by private monopolies everything (including the sea and the seashore) that was worth exploiting, and had a general idea of public rights that is quite alien to our own.” (Deveney).
“What pleases the emperor, has the force of law.” (Institutes 1.2.6).
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Did the public trust doctrine exist in England?
“There was no concept of a public trust in the early common law—that is, the idea that the title of certain lands was held inalienably by the Crown for the common use.” (Deveney).
“No line is drawn . . . between those proprietary rights which the king has as king and those which he has in his private capacity. The nation, the state, is not personified; there are no lands which belong to the nation or to the state.” (1 Pollock & Maitland 518, quoted in Deveney).
“By the reign of King John almost all the foreshore and the rivers of the kingdom either were still held by the Crown as private property or had been granted in fee to individual holders.” (MacGrady).
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Lord Hale andthe “prima facie” rule
Thomas Digges, Elizabethan courtier: “Those thinges whiche by the lawe of nature were left in common, are by the lawes of this realme to the prince propre and peculiare” and can be owned by private persons only by “especiall graunte” of the king.
Lord Hale’s De Jure Maris et Brachiorum Ejusdem“lands were presumed to remain with the king
unless expressly granted.” (Huffman).
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Lord Hale’s tripartite understanding
of coastal property
Jus privatum
Jus regium
Jus publicum
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Jus publicum
“The jus publicum in Hale’s view is solely an interest in navigation and a public right to have navigable rivers and the ports of the kingdom free of nuisances, whether caused by the Crown or by a subject.” (Deveney).
To prevent even the Crown from authorizing a nuisance.
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What about Parliament?“[T]here has never been a doctrine of the public trust
in England. What the king alone might not be able to do after 1701 has never been beyond the power of the king and Parliament together to do, or beyond the power of Parliament alone.” (Deveney).
“[T]here was no public trust doctrine in England related to Crown ownership of submerged beds and the foreshore at the time of the American Revolution. As a matter of English fact, the beds and shores of virtually all navigable waters, tidal and nontidal, were privately owned.” (MacGrady).
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SCOTUS invents a history
“[W]hen the Revolution took place, the people of each state became themselves sovereign; and in that character hold the absolute right to all their navigable waters and the soils under them for their own common use. . . . The dominion and property in navigable waters, and in the lands under them, [were] held by the king as a public trust. . . . ” Martin v. Lessee of Waddell, 41 U.S. 367, 410-11 (1842).
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Scope of the Public Trust Doctrine
“Public trust easements are 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 boating and general recreation purposes the navigable waters of the state. . . . There is a growing public recognition that one of the most important public uses of the tidelands . . . is the preservation of those lands in their natural state. . . .” Marks v. Whitney, 6 Cal. 3d 251, 259 (1971).
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Why expanding the doctrine
is problematicIt conflates the jus publicum with the jus regium
It unfairly expands the background principles of property law
“Any limitation so severe cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership.” Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1029 (1992).
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Judicial Takings“If a legislature or a court declares that what was once
an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation.” Stop the Beach Renourishment v. Fla. Dep’t of Envtl. Prot., 130 S. Ct. 2592, 2602 (2010) (plurality opinion).
“If a judicial decision, as opposed to an act of the executive or the legislature, eliminates an established property right, the judgment could be set aside as a deprivation of property without due process of law.” Id. at 2614 (Kennedy, J., concurring in part and concurring in the judgment).
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The policy problems withexpanding the public trust doctrine“Any body of law will be fuzzy around the edges; that
cannot be helped. But the notion of an evolving unbounded set of communal rights—whether they are constitutional or common law, procedural or substantive, in all public and private property strips clarity, certainty, and predictability from the very core of the public trust doctrine. The modern American public trust doctrine, resting on its narrow and inapposite English precedential bed, has become little more than a convenient hook on which those who would create and preserve certain communal interests in real property have hung their litigious hats.” Lloyd R. Cohen, The Public Trust Doctrine: An Economic Perspective, 29 Cal. W. L. Rev. 239, 275 (1992).
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“It is not too late for the courts to take a hard look at this doctrine [of public trust] and to recognize it for what it has become in many jurisdictions. Rather than a protection of long-recognized public rights, which it was, it has become a means for the states to regulate and take private property without having to give even passing consideration to the fifth amendment.” James L. Huffman, Avoiding the Takings Clause Through the Myth of Public Rights: The Public Trust and Reserved Rights Doctrines at Work, 3 J. Land Use & Envtl. L. 171, 211 (1987).
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“Expansion of the public trust doctrine for no other reason than to protect the environment simply ignores the economic precedent established by the original doctrine itself. Any furtherance of the doctrine must be based upon rational thinking and advancing the ‘common good.’ . . . [T]he most principled approach to advancing the common good is balancing the legitimate economic interests of individual property owners against public resource preservation. When this is executed, rarely can it be shown that the benefits of resource preservation outweigh the economic concerns of property owners. Thus, any expansion of the doctrine should be slow and scrutinized to the highest degree and with a spirit of judicial restraint.” George P. Smith II & Michael W. Sweeney, The Public Trust Doctrine and Natural Law: Emanations Within a Penumbra, 33 B.C. Envtl. Aff. L. Rev. 307, 342-43 (2006) (footnote omitted).
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The Public Trust Doctrineand Groundwater
Subterranean streams and percolating groundwater. Cf. Water Code s. 1200.
Extraction of groundwater is a usufructury right, divisible into overlying, appropriative, and prescriptive types.
Rules of “reasonable use” and “correlative rights.” Katz v. Walkinshaw, 141 Cal. 116, 121-22, 135-36 (1903).
Public trust limitations have never been implied into the rules of reasonable use and correlative rights.
