National University of Advanced Legal Studies

The History of The Public Trust Doctrine

History of Statutory Presumptions Project
Vishal M Achanta No.632

11

The Birth of Public Trust and its definition:

The Doctrine of Public Trust is an ancient one, but its history and development have been interrupted at various times by the need for industrial development and the general attitude of callousness with which the treatment of the Earth by human beings has been characterised. It enshrines the well worn truth that the Earth and the bounties of Nature are the common property of all human beings. This simple fact was well understood and even revered by the human beings of antiquity, but as society and civilization grew exponentially and ate into the environment, conflicts started to crop up between humans themselves, over the fruits of Nature, and between humans and Nature itself. The occurrence of the former was mainly driven by the enormous growth in human population over the millennia. Humans began competing for resources, and this led to the birth of statutes that sought to prevent humans from appropriating natural resources as theirs and theirs alone. Thus emerged the doctrine that certain parts of Nature were not exclusive to any group of humans but were the property of all. Later on during the 20th century, with the rise of the environmental movement, the doctrine was applied by numerous judiciaries to safeguard the environment, extending its scope to include the State, in particular the States duty to protect the environment. Across cultures and continents, communities have always imbued certain natural resources with a sense of permanent public ownership. This unique status for these resources such as the ocean, certain water bodies, shorelines, submerged lands, and the air reflects their immense importance to individuals and society as a whole. These resources belong to the public, and no private entity can ever acquire the right to monopolize or deprive the public of the right to use and enjoy them.1 The traditional public trust doctrine is property law. It defines an easement that members of the public hold in common.2

Restoring the Trust: Water Resources and the Public Trust Doctrine, A Manual for Advocates, Alexandra B. Klass and Ling-Yee Huang
2

James Huffman, A Fish Out of Water: The Public Trust in a Constitutional Democracy 19 Envtl. L.

Rev. 527 (1989).

The Stockholm Declaration of United Nations on Human Environment evidences this seminal proposition: "The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural system, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate... "3

The importance of Pubic Trust and its importance:

The importance of the doctrine and its continued development cannot be over emphasised, especially since the environment is now in such a perilous and fragile state. The continued and accelerated rate of growth of human population will place further stress on natural resources, and it is of paramount importance that their ownership is clarified and that they are available to all humans. In India, this is a particularly grave concern, since our natural resources are rapidly dwindling and our population is showing unprecedented rates of growth. Here it is necessary to qualify the term natural resources. The term has a very wide scope, but when we are considering the doctrine of public trust, it could mean something as simple as a stretch of beach or a bench in a park. The right of the public to use and enjoy those natural resources is the essence of the doctrine of public trust. This doctrine has been primarily significant in two areas: land access and use, and natural resource law. The doctrine has been used to defend the environment extensively, in particular the seashore and other maritime and aquatic resources. Sometimes these actions have been against the government and at others they have been against private persons or companies. The Public Trust Doctrine can also be used as leverage during policy deliberations. This requires agencies to prove that their actions are not environmentally harmful to the extent that they will maim a public resource. If the agencies fail to provide a more environmentally benign alternative, then a Public Trust lawsuit can be brought against

http://www.unep.org/Documents.multilingual/Default.asp?DocumentID=97&ArticleID=1503

the agency. Even though the court process may be prolonged and difficult, many important precedents have been established.4 Similar to any legal trust, the public trust doctrine has three primary components: the trustee, the trust principal, and the beneficiaries of the trust. In the public trust framework, the state is the trustee, which manages specific natural resources the trust principal for the benefit of the current and future generations the beneficiaries. A beneficiary of any legal trust can sue the trustee for harm to the trust principal. To date, the greatest and most consistent successes of the Public Trust Doctrine involve cases of public access rather than resource protection emphasizing the present beneficiaries of the trust rather than fortifying the principal of the trust. A handful of cases, however, have succeeded in fortifying the trust principal by requiring improved natural resources management. These cases fall into two broad categories: Environmental groups cite the doctrine as a limit on state action that relinquishes or compromises trust resources, or The state cites the doctrine to support state action that protects trust resources from private actions.5 In the seminal academic study on the doctrine by Prof. Joseph Sax, he asserts that,it was understood that in certain common properties - such as the seashore, highways and running water - `perpetual use was dedicated to the public', Three types of restrictions on governmental authority are often thought to be imposed by the public trust: first; the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third the property must be maintained for particular types of uses."6 The doctrine of public trust has evolved over the years to emerge as a cardinal principle for the judiciary to determine the validity of governmental action that interferes with the use by the general public of certain natural resources. The
4

Legal Service India. com, Tanvi Kapoor Restoring the Trust: Water Resources and the Public Trust Doctrine, A Manual for Advocates, Alexandra B. Klass and Ling-Yee Huang
5 6

Prof. Joseph Sax."Public Trust Doctrine in Natural Resource Law : Effective Judicial Intervention"

Michigan Law Review; Vol. 68, Part 1 p. 473,

application of the doctrine has resulted in the imposition of a check upon governmental authorities who seek to divest State control over such natural resources in favour of private interests.7 The Supreme Court of California has broadened the definition of public trust by including ecological and aesthetic considerations. Although the public trusts doctrine has faced criticism, it is being increasingly related to sustainable development, the precautionary principle and bio-diversity protection. The doctrine combines the guarantee of public access to public trust resources with a requirement of public accountability in respect of decision-making regarding such resources.8 The public trust doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public's reasonable use. There also exists the intergenerational aspect, since we are the keepers of the environment for the enjoyment of future generations. These resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interests of both the State and mankind at large to do so.9

The History of the Doctrine of Public Trust:

It is clearly evident that elements of the doctrine related to fish, shorelines and water have come to us from codified dictates enacted by the Roman Emperor Justinian in about 530 A.D., though some sources attribute the date to 533 A.D.10 The roots in history of the doctrine are traced to Justinian. In Book II of his Institutes, Justinian proclaims: By the law of nature these things are common to mankind---the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore.

S.A. Karthik, The Doctrine of Public Trust and Environmental Protection in India.

8 9

Legal Service India. com, Tanvi Kapoor Id, para. 10 10 Slade, David C. Esq. The Public Trust Doctrine: A Gift From A Roman Emperor,

The establishment of this principle in the Byzantine (Ancient Roman) Empire was the first appearance of the doctrine in a legal statute, and the roots of the doctrine in Justinians Institutes are recognised both by academics and by various judiciaries. It was an established principle during those times, but was not to reappear significantly until another great declaration of rights many centuries later in England. This principle became the law in England as well. The English monarchy added strength and recognition to the public trust doctrine with the signing of the Magna Carta in 1215. In the Magna Carta in England public rights were further strengthened at the insistence of the nobles that fishing wires which obstructed free navigation be removed from rivers. Changes in English common law enacted in 1641, and additional modifications enacted by Colonial Ordinance in 1647, reaffirmed the public trust doctrine concept that government has an affirmative duty to care for, protect, manage and conserve fish and wildlife; hence, the government cannot relinquish its obligations to a popular vote to establish administrative management, protection, and conservation practices for renewable wildlife and marine resources. In other words, ballot measures cannot supersede governmental rule. These rights were further strengthened by later laws in England. It is a common law concept, defined and addressed by academics in the United States and the United Kingdom. In the United States, the concept of public trust took hold quickly, aided by the common law roots of the American judiciary, and several landmark judgements that held up the doctrine. The Congress also played its part in this process, framing many environment-friendly laws. In 1842 the Supreme Court ruled that the Magna Carta had settled the question of who owns fish and wildlife and that King Charles II did not have the authority to give away the dominion and property of lands in colonial America. A 1983 California Supreme Court ruling held that the State has an "affirmative duty to take the public trust into account" in making decisions affecting public trust resources, and also the duty of continuing supervision over these resources which allows and may require modification of such decisions.11

11

National Audubon Society v. Superior Court, 33 C3rd 419.

In 1892, the Supreme Court declared that the "Sovereign Lands" of a state are held in trust by the State for all present and future generations, and that such land may not be sold for development incompatible with uses covered by the Public Trust Doctrine.12 In that case the Illinois Legislature had granted an enormous portion of the Chicago harbour to the Illinois Central Railroad. A subsequent legislature sought to revoke the grant, claiming that original grant should not have been permitted in the first place. The court held that common law public trust doctrine prevented the government from alienating the public right to the lands under navigable waters (except in the case of very small portions of land which would have no effect on free access or navigation). This case, Illinois Central, from 1892, is the best example of the doctrine as a limitation on state action, arising from a popular movement that challenged the legislatures grant of lakefront property to a private company. In ruling that a state cannot wholly grant control of trust resources to a private entity, the U.S. Supreme Court laid the foundation of the doctrine as an upper limit on state power. In 1896, the Supreme Court declared that the states property right in game was to be exercised as a trust for the benefit of the people of the state.13 This case is widely considered by many to be the core ruling of states public trust authority over wildlife. The New York State Supreme Court, Suffolk County upheld the Long Island Pine Barrens Act against a takings challenge by highlighting the public trust doctrine. The decision was handed down on April 22, 1998, Earth Day.14 Another court in the State of Iowa noted that the Public Trust Doctrine has, "emerged from the watery depths [of navigable waters] to embrace the dry sand area of a beach, rural parklands, a historic battlefield, wildlife, archaeological remains, and even a downtown area."15The Supreme Court of California in National Audubon Society v. Superior Court of Alpine County16, observed:"Thus, the public trust is more than an affirmation of State power to use public property for public purposes. It is an affirmation of the duty of the State to protect the people's common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in

12
13 14

Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892).

Greer v. Connecticut, 161 U.S. 519 (1896). W.J.F Realty Corporation and Reed Rubin v. The State of New York 15 An Introduction to the Public Trust Doctrine, Bray, Paul M, Government Law Center, Albany Law School. 16 (33 Cal. 3d 419)

rare cases when the abandonment of that right is consistent with the purposes of the trust....."

The Doctrine of Pubic Trust in India:

In India, the public trust doctrine has long been understood to be a part of the law of the land. It emerged in the wake of landmark judgements that clarified the judiciarys stand on the issue and asserted that the doctrine was implicit in Article 21.17The first such case was that of M. C. Mehta v. Kamal Nath.18The importance of this case is very great since it was the first time in India that the public trust doctrine was clearly defined and upheld by the apex court. The facts of the case were these: The Indian Express published an article reporting that Span Motels Private Limited, which owns Span Resorts, had floated another ambitious venture, Span Club. The family of Indian politician Kamal Nath had direct links with this company. The club was built after encroaching upon 27.12 bighas of land, including substantial forestland, in 1990. The land was later regularised and leased out to the company on April 11, 1994. The regularisation was done when Nath was Minister of Environment and Forests. This encroachment led to the swelling of the Beas River, and the swollen river changed its course and engulfed the Span Club and the adjoining lawns, washing it away. For almost five months, the Span Resorts management moved bulldozers and earth movers to turn the course of the Beas for a second time. A worrying thought was that of the river eating into the mountains, leading to landslides which were an occasional occurrence in that area. In September, these caused floods in the Beas and property estimated to be worth Rs. 105 crore was destroyed. The Government of India, Ministry of Environment and Forests by the letter dated 24.11.1993, addressed to the Secretary, Forest, Government of Himachal Pradesh, Shimla conveyed its prior approval in terms of Section 2 of the Forest (Conservation) Act, 1980 for leasing to the Motel 27 bighas and 12 biswas of forest land adjoining to the land already on lease with the Motel.

17

Article 21: No person shall be deprived of his to life or personal liberty except according to procedure established by law. 18 (1997)1 SCC 388

The Supreme Court took notice of a news item regarding the above developments and proceeded to quash the prior approval granted by the central government for leasing out forest land and also the lease deed between the government of Himachal Pradesh and the company. The Court also directed the Government of Himachal Pradesh to take over the entire area and restore it to its natural, original state. In Majra Singh v Indian Oil Corporation,19the petitioner objected to the location of a plant for filling cylinders with LPG. It was held that the High Court can only examine whether authorities have taken all precautions with a view to see that laws dealing with environment and pollution have been given due care and attention. Though the case was decided on the basis of the precautionary principle, it confirmed that the public trust doctrine has become part of the Indian legal thought processes. In the High Court's opinion, the doctrines is a part and parcel of Article 21 of the Constitution and that there can be no dispute that the State is under an obligation to see that forests, lakes and wildlife and environment are duly protected. In M.I. Builders v Radhey Shyam Sahu20 the Lucknow Nagar Mahapalika granted permission to a private builder to construct an underground shopping complex on the location of a historically important park used by the public. The Court ordered Mahapalika to restore the park to its original position within a period of three months from the date of the judgment. On appeal by the builders, the Supreme Court held that the terms of agreement showed that the clauses of the agreement are unreasonable, unfair and atrocious. The Mahapalika, as a trustee for the proper management of the park, has to be more cautious in dealing with its properties. The Court added that the land of immense value had been handed over to it to construct an underground shopping complex in violation of the public trust doctrine. The Supreme Court, in M.I. Builders reconfirmed that the public trust doctrine is established in the Indian legal system and asserted that the public authorities should act as trustees of natural resources. Thus, under this doctrine, the state has a duty as a trustee under Article 48A to protect and improve the environment and safeguard the forests and wildlife of the country. While applying Article.21 (Right to Life), the state is obliged to take account of Article 48A, a Directive Principle of State Policy.

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AIR 1999 J&K 81 AIR 1999 SC 2468.

In the case of Rajendra Singh & Ors. V. Government Of Delhi & Ors21, the court held that, The Apex Court in various cases recognized some internationally accepted and important principles in matters pertaining to the environment, thus, resulting into development of environment jurisprudence in India whereby recognizing concept of sustainable development, doctrine of public trust, precautionary principle etc., combined with a liberal view towards ensuring social justice In the case of Intellectuals Forum Tirupathi v. State of A.P. & Ors22., the court, while recounting the decision in the M. C. Mehta case, had this to say: In the said decision, the Hon'ble Supreme Court liberally dealt with the doctrine of 'Public Trust" in the context of protection of natural resources such as lakes, forests etc., and held that such doctrine has now become part of Indian Jurisprudence. The Hon'ble Supreme Court held that the State is the trustee of all natural resources which are by nature meant for public use and enjoyment and therefore as a trustee. Later on, in the case of Karnataka Industrial Areas Development Board v. Sri. C. Kenchappa & Ors.23, the court held that, The concept of public trusteeship may be accepted as a basic principle for the protection of natural resources of the land and sea. The doctrine enjoins upon the Government and its instrumentalities to protect the resources for the enjoyment of the general public. The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The above mentioned case laws have set a strong precedent and have assured the future of the public trust doctrine as an important part of our environmental jurisprudence. In alliance with the polluter pays principle and the precautionary principle, the doctrine is a powerful sign of hope to those concerned with the

21

WP (C) No. 7506 of 2007

22

(2006) 3 SCC 549

23

(2006) 6 SCC 371

environment that we could yet enjoy the full scope of the rights guaranteed to us under Article 21.

Bibliography:
1An

Introduction to the Public Trust Doctrine, Bray, Paul M, Government Law

Center, Albany Law School. 2. S.A. Karthik, The Doctrine of Public Trust and Environmental Protection in India. 3. Slade, David C. Esq. The Public Trust Doctrine: A Gift From A Roman Emperor. 4. Legal Service India. com, Tanvi Kapoor 5. Prof. Joseph Sax."Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention" Michigan Law Review; Vol. 68. 6. Restoring the Trust: Water Resources and the Public Trust Doctrine, A Manual for Advocates, Alexandra B. Klass and Ling-Yee Huang. 7.http://www.unep.org/Documents.multilingual/Default.asp?DocumentID=97&Articl eID=1503 8. James Huffman, A Fish Out of Water: The Public Trust in a Constitutional Democracy 19 Envtl. L. Rev. 527 (1989). 9. V. N. Shukla, The Constitution of India, 2nd Edition, Universal Law Publishing Company.