PUBLIC TRUST DOCTRINE AND NATURAL LAW: EMANATIONS WITHIN A PENUMBRA, THE

Abstract:

In American jurisprudence, the public trust doctrine emerg as a means of protecting certain limited environmental interests, of the like kind as coastal waterways and fishing areas, which were preserv for the benefit of the public and distinguished from grants of private ownership. However, fresh scholars have called for an expansive application of the public trust doctrine, citing the growing inventory of "changing public needs" in the environmental adjoining matter such as the need for improved air and water quality, and the conservation of natural landscape. This Article examines the history and mark of the public trust doctrine to determine by what means modern resource management fits within the doctrine's exhibition under the Constitution and belonging to all law. Such an examination is incomplete without reviewing the important principles of Natural Law underlying the original doctrine. In the extreme point the Article concludes that recent trust expansion should be limited within the ancient values of principled economic reasoning.

INTRODUCTION

Joseph Sax one time commented, "Of all the universals known to American law, solitary the public trust doctrine appears to have the breadth and substantive satisfied which might make it useful as a tool of general application for citizens seeking to make known a comprehensive legal approach to resource management problems"1

For centuries, nation have utilized some version of this doctrine by dint of preserving portions of the environment for the greater public profitable recognizing that the air, water, and seashores were "common to all by the agency of natural law."2 This act of public preservation is administered by means of the state on behalf of its populace and look fors to protect natural resources for the benefit of the community at large.

Early American jurisprudence applied this conception to certain limited interests, of the like kind as coastal waterways and fishing areas, which were preserv for the benefit of the public and -distinguished from grants of private ownership.3 This has been confineed by some as the "classic list of saveed [public] interests."4 And yet, the doctrine has been cited in answer to a growing inventory of "changing public needs" in the environmental connection such as the need for improved air and water quality, and the conservation of natural landscape.5

Indeed, the Sax vision is a call to arms for environmentalists to utilize the public trust doctrine as a sword for greater judicial protection and a shield from peculiarity rights advocates.6 But, given the wide array of public interests and competing public rights, should the public trust doctrine be used as like a vehicle for expansive environmental protection?

This Article will examine the history and drift of the public trust doctrine to determine in what way Sax's vision for resource management fits within the doctrine's disentanglement under the Constitution and for the use of all law7-most notably, how does the influence of Natural Law relate to the function of the public trust doctrine. one time this historical assessment is thorough the Article will shift to an examination of fresh public trust application in the environmental and land use arenas and trial whether it should be used to expand its traditional coverage beneath the Natural Law perspective. Although the notions of the Natural Law are penumbric, they nonetheless provide a foundational bearing-or direction-for legitimizing the application of the public trust doctrine and, as the case may be, restraining its application. In a real real way, then, this doctrine is an emanation within a penumbra, on the other hand one that is validated because of this real relationship. It can be correctly thinking of as having a yin-yang-or positive-negative-relationship with the Natural Law. Although this relationship may also be seen as tenuous, it is far better than unbridled, subjective judicial activism which has no guideposts at all for its voracious appetite.

The thesis of this Article is that rather than continuing to expand the broad reach of the public trust doctrine in the near design of a crazy patch-work quilt, its expansion should be the pair measured and restrained by the "common good" Applying this standard-which look fors to balance the legitimate expectations and real interests of individual characteristic owners with the need for enhanced public resource preservation-will normally originate in validating the legitimate economic interests of the attribute owners.

The proposed balancing experiment is both informed and shaped through the Natural Law. A primary way of thinking of its recognition and protection of "individual goods" or rights, of the like kind as property ownership, is measured against the "common good"8 It is for the states to manage the directions that the public trust takes in recent society. In setting the framework for analysis of issues resolving trust expansion, the Natural Law template or proof of reasoned balance can be a vade mecum or guide for one as well as the other legislators and judges confronted through this challenging issue.

I. DIGGING FOR THE ANCIENT bottoms OF THE PUBLIC TRUST

As this Article risks to examine the breadth of the public trust in American jurisprudence, it is important to investigate the doctrine's historical underpinnings and the intentions which it serves.9 The American dominion of law regarding property rights and the public trust is premised on an inherited line of reasoning from ancient Roman law and English public law.10