Illinois Central and the Public Trust Doctrine in State Law
By Eric Pearson
INTRODUCTION
A. The Classic Public Trust Doctrine
The public trust doctrine is a longstanding component of natural resources law. More easily acknowledged than described, the doctrine in its classic form is derived from the law of property and applies to a particular natural resource, namely stream beds underlying navigable and tidal waterways. In this classic form, the doctrine operates to deny states any power to convey these “trust resources,” to which they typically hold title, to private persons or entities if the transfer would diminish or defeat traditional public access to and use of those resources. Thus, the classic doctrine seems analogous to a conventional real property trust: the state, as title holder, assumes the role of trustee and must honor the interest of the trust's beneficiaries, the public, in its management decisions. The doctrine rests on the idea that natural resources, such as the sea and the air, ought to be immune from private purchase. In other words, natural resources should serve as a “commons” for all persons to use and enjoy without being forced to yield to the personal interests of private entities.
B. The Modern Public Trust Doctrine
Courts continue to use the public trust doctrine in this classic form, but also have applied the doctrine to a host of resources other than submerged lands, including marine life, wildlife, sand and gravel, rural park lands, battlefields, archeological remains, and a downtown area. Courts also use the doctrine to protect such time-honored public pursuits as hunting, fishing, boating, scientific study, wildlife habitat preservation, swimming, the maintenance of ecological integrity and aesthetic beauty, and the retention of open space. Thus, a doctrine originally applicable to submerged lands may now serve to promote resource conservation and protection.
In addition to extending the reach of the public trust doctrine, courts have changed its form. For example, courts have used the doctrine as a measure to assess the credibility of private property claims. The doctrine has also been used to protect states from claims based on adverse possession, laches, and other equitable theories. More importantly, the doctrine has evolved into an affirmative power, supplemental to and consistent with traditional police powers, to promote public rights in the use of resources. For instance, the Montana Supreme Court applied the doctrine to expand public rights in the use of navigable and nonnavigable waters beyond what the state's common law may have otherwise supplied. Also, courts have used the public trust doctrine to minimize preexisting private property rights, as was done by the California Supreme Court in the famous Mono Lake case. In Mono Lake, the City of Los Angeles had secured water rights in Mono Lake's nonnavigable feeder streams under the state's prior appropriation water rights allocation system. However, the city's water diversions were adversely affecting the ecological integrity of this second largest California lake, revered as a “scenic and ecological treasure of national significance.” Faced with a classic confrontation between public and private water rights, the court held for the public, saying the public trust doctrine prevented any party from acquiring vested property rights to appropriate water in a manner injurious to the interests protected by the trust.
Although the modern growth of the public trust doctrine may create the appearance of ineluctability, the widespread adoption of the doctrine was unforeseeable. In its classic form, the public trust doctrine addresses an exceedingly narrow band of state action: the conveyance of submerged lands when contrary to the public interest. That the laws of all states would address this narrow band of action is idiosyncratic to say the least. Doctrines do not generally emerge to govern every aspect of state action, however infrequent and unusual the action may be. Furthermore, the doctrine can unsettle the delicate balance of powers among branches of government by promoting judicial nullifications of legislative or agency actions merely because those actions represent seemingly unwise policy choices. Finally, the expansion of the public trust doctrine is surprising given the breadth of states' police powers, which allow states to protect fully natural resources and public rights in their use.
C.Illinois Central Railroad v. Illinois: The Linchpin in the Public Trust Doctrine's Development
However surprising, all states have a public trust doctrine, and some have had one for many years. Some states incorporated the doctrine because they favored the pro-conservation message the doctrine espouses. Other states adopted the doctrine at least in part because they felt they had little choice, given what might be termed the “chain of title” theory. Under this theory, the federal government held title to submerged lands “in trust” for the people, and when that title transferred to states, the title interests came complete with the preexisting trust obligation attached. This theory seems plainly unsound, as it misunderstands the trust obligation in federal law, and assumes incorrectly that the state's inherent police power is insufficient to determine the contours of the property rights regime within the state itself, even when title is secured from the federal government. In addition, not all states were carved out of federal lands.
The more significant reason for the public trust doctrine's robust status among the states, however, is the Supreme Court's landmark decision in Illinois Central Railroad v. Illinois. In Illinois Central, the Court announced unequivocally that lands underlying navigable waterways are titled to states “in trust” for the citizens' commercial and recreational use. The Court said that “[t]he State can no more abdicate its trust over property in which the whole people are interested . . . than it can abdicate its police powers . . . .”
State courts have relied on Illinois Central to different degrees when adopting the public trust doctrine. In some states, such as Idaho and Louisiana, Illinois Central is the specific legal foundation supporting the judicial adoption of the doctrine. In other states, such as Florida, Alaska, and Arizona, the case is a persuasive, if not a compelling, legal basis for the adoption of the public trust doctrine. In states such as Iowa and Wisconsin, the case played a supporting role in pro-trust holdings.
Overall, the effect of Illinois Central has been profound. The case has been cited hundreds of times in state cases and has become standard fare in law schools. This Article examines whether Illinois Central deserves such a central position in natural resources law. In particular, this Article analyzes whether Illinois Central is binding on the states, or is merely persuasive authority.Currently, many state courts cite Illinois Central for the proposition that the public trust doctrine constitutes an inviolable feature of state law, requiring them to protect natural resources beyond what state law would otherwise require.
As one commentator opined:
The public trust doctrine imposes an obligation on the states, as trustees, to preserve navigable waters for use by the public. At a minimum, a state may not affirmatively act in derogation of the trust. For example, the doctrine prohibits the state from filling a bed or draining a marsh for non-water resource uses. . . . It also requires the state to identify impacts upon trust waters as part of a planning process.
The public trust doctrine forbids the state from ignoring its obligation to protect the waters and stream beds which constitute the corpus of the trust. The state may not abdicate its obligation by conveyance of the trust corpus to private interests.
Resolving the status of Illinois Central proves significant because, if the case is understood to be only persuasive, rather than mandatory, authority, states may contract, eliminate, or halt the expansion of the doctrine.
Thus, Part II of this Article begins with a close review of the history of the Illinois Central litigation, and then proceeds to an analysis of the Supreme Court's decision in the case. With that groundwork in place, Part III contends that the Supreme Court's decision in Illinois Central is neither credible nor binding on the states for five reasons. First, the decision emerges from a conceptual misreading of the nature of state power. Second, the decision misuses precedent. Third, the decision suffers from serious inadequacies in constitutional analysis. Fourth, the decision's public trust pronouncements are dictum. Finally, the Court has abandoned Illinois Central in later judicial decisions.
A. The Classic Public Trust Doctrine
The public trust doctrine is a longstanding component of natural resources law. More easily acknowledged than described, the doctrine in its classic form is derived from the law of property and applies to a particular natural resource, namely stream beds underlying navigable and tidal waterways. In this classic form, the doctrine operates to deny states any power to convey these “trust resources,” to which they typically hold title, to private persons or entities if the transfer would diminish or defeat traditional public access to and use of those resources. Thus, the classic doctrine seems analogous to a conventional real property trust: the state, as title holder, assumes the role of trustee and must honor the interest of the trust's beneficiaries, the public, in its management decisions. The doctrine rests on the idea that natural resources, such as the sea and the air, ought to be immune from private purchase. In other words, natural resources should serve as a “commons” for all persons to use and enjoy without being forced to yield to the personal interests of private entities.
B. The Modern Public Trust Doctrine
Courts continue to use the public trust doctrine in this classic form, but also have applied the doctrine to a host of resources other than submerged lands, including marine life, wildlife, sand and gravel, rural park lands, battlefields, archeological remains, and a downtown area. Courts also use the doctrine to protect such time-honored public pursuits as hunting, fishing, boating, scientific study, wildlife habitat preservation, swimming, the maintenance of ecological integrity and aesthetic beauty, and the retention of open space. Thus, a doctrine originally applicable to submerged lands may now serve to promote resource conservation and protection.
In addition to extending the reach of the public trust doctrine, courts have changed its form. For example, courts have used the doctrine as a measure to assess the credibility of private property claims. The doctrine has also been used to protect states from claims based on adverse possession, laches, and other equitable theories. More importantly, the doctrine has evolved into an affirmative power, supplemental to and consistent with traditional police powers, to promote public rights in the use of resources. For instance, the Montana Supreme Court applied the doctrine to expand public rights in the use of navigable and nonnavigable waters beyond what the state's common law may have otherwise supplied. Also, courts have used the public trust doctrine to minimize preexisting private property rights, as was done by the California Supreme Court in the famous Mono Lake case. In Mono Lake, the City of Los Angeles had secured water rights in Mono Lake's nonnavigable feeder streams under the state's prior appropriation water rights allocation system. However, the city's water diversions were adversely affecting the ecological integrity of this second largest California lake, revered as a “scenic and ecological treasure of national significance.” Faced with a classic confrontation between public and private water rights, the court held for the public, saying the public trust doctrine prevented any party from acquiring vested property rights to appropriate water in a manner injurious to the interests protected by the trust.
Although the modern growth of the public trust doctrine may create the appearance of ineluctability, the widespread adoption of the doctrine was unforeseeable. In its classic form, the public trust doctrine addresses an exceedingly narrow band of state action: the conveyance of submerged lands when contrary to the public interest. That the laws of all states would address this narrow band of action is idiosyncratic to say the least. Doctrines do not generally emerge to govern every aspect of state action, however infrequent and unusual the action may be. Furthermore, the doctrine can unsettle the delicate balance of powers among branches of government by promoting judicial nullifications of legislative or agency actions merely because those actions represent seemingly unwise policy choices. Finally, the expansion of the public trust doctrine is surprising given the breadth of states' police powers, which allow states to protect fully natural resources and public rights in their use.
C.Illinois Central Railroad v. Illinois: The Linchpin in the Public Trust Doctrine's Development
However surprising, all states have a public trust doctrine, and some have had one for many years. Some states incorporated the doctrine because they favored the pro-conservation message the doctrine espouses. Other states adopted the doctrine at least in part because they felt they had little choice, given what might be termed the “chain of title” theory. Under this theory, the federal government held title to submerged lands “in trust” for the people, and when that title transferred to states, the title interests came complete with the preexisting trust obligation attached. This theory seems plainly unsound, as it misunderstands the trust obligation in federal law, and assumes incorrectly that the state's inherent police power is insufficient to determine the contours of the property rights regime within the state itself, even when title is secured from the federal government. In addition, not all states were carved out of federal lands.
The more significant reason for the public trust doctrine's robust status among the states, however, is the Supreme Court's landmark decision in Illinois Central Railroad v. Illinois. In Illinois Central, the Court announced unequivocally that lands underlying navigable waterways are titled to states “in trust” for the citizens' commercial and recreational use. The Court said that “[t]he State can no more abdicate its trust over property in which the whole people are interested . . . than it can abdicate its police powers . . . .”
State courts have relied on Illinois Central to different degrees when adopting the public trust doctrine. In some states, such as Idaho and Louisiana, Illinois Central is the specific legal foundation supporting the judicial adoption of the doctrine. In other states, such as Florida, Alaska, and Arizona, the case is a persuasive, if not a compelling, legal basis for the adoption of the public trust doctrine. In states such as Iowa and Wisconsin, the case played a supporting role in pro-trust holdings.
Overall, the effect of Illinois Central has been profound. The case has been cited hundreds of times in state cases and has become standard fare in law schools. This Article examines whether Illinois Central deserves such a central position in natural resources law. In particular, this Article analyzes whether Illinois Central is binding on the states, or is merely persuasive authority.Currently, many state courts cite Illinois Central for the proposition that the public trust doctrine constitutes an inviolable feature of state law, requiring them to protect natural resources beyond what state law would otherwise require.
As one commentator opined:
The public trust doctrine imposes an obligation on the states, as trustees, to preserve navigable waters for use by the public. At a minimum, a state may not affirmatively act in derogation of the trust. For example, the doctrine prohibits the state from filling a bed or draining a marsh for non-water resource uses. . . . It also requires the state to identify impacts upon trust waters as part of a planning process.
The public trust doctrine forbids the state from ignoring its obligation to protect the waters and stream beds which constitute the corpus of the trust. The state may not abdicate its obligation by conveyance of the trust corpus to private interests.
Resolving the status of Illinois Central proves significant because, if the case is understood to be only persuasive, rather than mandatory, authority, states may contract, eliminate, or halt the expansion of the doctrine.
Thus, Part II of this Article begins with a close review of the history of the Illinois Central litigation, and then proceeds to an analysis of the Supreme Court's decision in the case. With that groundwork in place, Part III contends that the Supreme Court's decision in Illinois Central is neither credible nor binding on the states for five reasons. First, the decision emerges from a conceptual misreading of the nature of state power. Second, the decision misuses precedent. Third, the decision suffers from serious inadequacies in constitutional analysis. Fourth, the decision's public trust pronouncements are dictum. Finally, the Court has abandoned Illinois Central in later judicial decisions.
