Public Trust Doctrine

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The Public Trust Doctrine is a legal principle that requires a state to keep navigable waters within that state a public resource available for citizens to use for navigation, commerce and fishing, generally up to the average high water mark. The idea of a state holding navigable waters in trust for all citizens is rooted in English Common Law. Some states have expanded this doctrine to including recreation, scenic beauty and environmental protection, including for flora and fauna. The Public Trust Doctrine is important to fracking because environmental groups have begun using it as a means for suing to stop or limit fracking.[1]

Background

The Public Trust Doctrine has been shaped and expanded by decisions in the federal judiciary and by laws passed in the United States Congress. The U.S. Supreme Court's decision in Illinois Central Railroad v. Illinois (1892) allowed each state to hold submerged lands permanently in the public trust, a landmark case that has been cited by several states when they affirm their authority in public trust matters. The court followed up in 1896 by declaring that states hold wild game in the public trust as well. In 1918, after Congress passed the Migratory Bird Treaty Act, the Supreme Court said that public trust doctrine also applied to migratory birds. Although the Supreme Court said in 1978 that federal authority may supersede state authority in some public doctrine issues (specifically in some instances involving wildlife), the debate over public trust doctrine as it relates to states' rights and federal authority has not been clearly settled. Public trust doctrine has also expanded over the years to include hunting, swimming, land preservation for scenic beauty and recreational boating, although laws differ from state to state.[2][3]

Current issues

California

Groundwater has been the subject of a public trust doctrine debate in California. Environmental groups such as the Environmental Law Foundation have claimed that groundwater should be held in public trust by the state government, since groundwater can affect the navigable streams that already fall under public trust. On July 15, 2014, a state court in Sacramento County, California issued a decision stating that groundwater pumping harmed the flow of streams and fish in the Scott River, and that the county government where the river is located must consider public trust doctrine before issuing permits to drill wells in the area. The state court, while it did not call groundwater a public trust resource, said that the doctrine applied if groundwater withdrawals affect a surface water such as a stream or a river. The case is significant for the future of groundwater regulation in California.[4][5]

See also

References