HISTORY OF PUBLIC TRUST DOCTRINE
The public trust doctrine has its roots in the ancient Roman concept of natural law that held certain things, including the shores of water, were by their nature common to all.
“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, provided that he respects habitations, monuments, and buildings which are not, like the sea, subject only to the law of nations.” Justinian Code of 530 AD
The doctrine was adopted under English common law under which the tidelands and navigable waters were held by the king in trust for the general public, a kind of noblesse oblige. These public rights were also vested in the colonies of America, and following the American Revolution, all the rights of the king were vested in the several states, subject to the rights the states surrendered to the national government under the U.S. Constitution.
So today the states have public trust authority as common law to the extent they wish to exercise it and subject to rulings by state courts. This has varied greatly from state to state with Hawaii being the only state which extends public trust to groundwater and Vermont which recently passed a law which included public trust as a matter of state policy.
The seminal work on public trust doctrine was written by Joseph L. Sax in 1970: “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention,” Michigan Law Review 69 (1970) available in a law library if anyone wants to read it. For the leading case on public trust law of the states, and the role of the U.S. Supreme Court and state courts to assure the trust is not violated, see Illinois Central Railroad v Illinois (1892). This case is described more fully at the end of this paper. You will also find more on the history at end of this paper.
PRINCIPLES FOR PUBLIC TRUST LAW
As I discussed with Jim Olson, Michigan attorney representing Michigan Citizens for Water Conservation and author of several law review articles on public trust , public trust law should:
Declare that the streams, lakes, and rivers, and tributary groundwater of a state are a single hydrological system and impressed with a public trust; that the state holds and manages its water consistent with this public trust.
Ensure that when approving, licensing, permitting the use, diversion, reallocation of the flows and levels of the waters of the state, no such approval should be authorized if the standards of the public trust doctrine have not been met. These are that –
they serve a primary public purpose;
there is no material impairment of water, water dependent natural resources, or use and enjoyment of citizens.
Ensure that citizens whose use and interest are likely or will be affected by conduct or by approvals, licenses, permits of the state or any subdivision or local unit of government, have the right to bring an action in the courts to protect the public trust in its water and related natural resources by declaratory and injunctive or other equitable relief. Similarly citizens can act to protect the integrity and health of ecological systems. (Note: This is an extension of the common meaning of public trust. See below.)
Nothing in state law shall diminish the right of local jurisdictions to act to in keeping with the public trust to safeguard the community, including its ecosystem.
PUBLIC TRUST AND RIGHTS OF NATURE
These are two very different framings. In public trust law, the state has the duty to act on behalf of its citizens to protect their rightful interest in using natural resources, particularly water, for essential public needs; fishing; public recreation such as boating and swimming; and commerce, as long as the common rights of others are protected.
In rights of nature law, nature has certain inalienable rights. Because nature cannot speak for itself in courts of law, its rights must be upheld by people acting not out of economic self-interest treating nature as property, but rather out of a moral code that views humans as an integral part of nature, not as dominant over nature.
CAN PUBLIC TRUST BE BROADENED TO INCLUDE THE RIGHTS OF NATURE?
Assuming that Maine Water Allies share the goal of protecting the rights of nature, how could a public trust referendum be drafted to encompass this concept?
Rather than the state holding water in public trust for the common use, pleasure and benefit by the people of the state, the people of the state could hold all streams, lakes, rivers, marshes and groundwater in public trust to protect the integrity of the ecosystems on which all life depends.
This then would give the people of the state the authority to take such action as necessary to protect the integrity and health of ecological systems, having been entrusted by the state via referendum and law with this public trust responsibility.
A good example is the Michigan’s Environmental Protection Act, which grants standing to citizens to bring lawsuits to prevent likely pollution, impairment, or destruction of the air, water, or natural resources or the public trust in those resources, which does not need to be based solely on the impact on people. Several other states including Minnesota and Connecticut have passed similar laws, and there is substantial court precedent interpreting these laws that embrace the role of citizens to bring lawsuits to protect nature.
How this authority is carried out could vary from town to town just as the Shapleigh and Newfield laws leave it to the local citizens to decide how to uphold the rights of nature.
Note that the Maine 1910 Conant vs Jordan decision described below could be interpreted to support this line of reasoning.
HISTORY OF PUBLIC TRUST LAW IN MAINE
Colonial Ordinance of 1641-47: Public Trust in Great Ponds
Every inhabitant . . . shall have free fishing and fowling, in any Great Ponds, bays, coves and rivers so far as the sea ebbs and flows . . . .Provided that no town shall appropriate to any particular person or persons, any Great Pond containing more than ten acres of land; and that no man shall come upon another’s property without their leave otherwise than as hereafter expressed . . . . And for Great Ponds lying in common . .. it shall be free for any man to fish and fowl there, and may pass and repass on foot through any man’s property for that end, so they trespass not upon any man’s corn (old English word for crops), or meadow (hay).
Great Ponds Act of 1820
“In 1820, when Maine separated from Massachusetts, we carried over with us in the Articles of Separation, this ordinance which is now referred to as the Great Ponds Act. A
great pond is any body of water, ten acres or larger, in its natural state, or any flowed body of water 30 acres or larger.
1910 ruling in Conant vs Jordan
“In 1910, in a landmark decision, the Supreme Court of Maine ruled in Conant vs Jordan that even though the ordinance was written in Massachusetts, and even though Massachusetts took the position that the Commonwealth held the water in trust for the people, the court found that not to be true in Maine.
“Since the ordinance said ‘any man,’ the court found that the water belonged in common to the people and not the state. This means that all the people in Maine from Kittery to Fort Kent own an equal share in all the water in Maine from Kittery to Fort Kent”
1985 The Public Trust in Intertidal Lands
MRS Title 12, Chapter 202-A: 12 §571. Legislative findings and purpose
The Legislature finds and declares that the intertidal lands of the State are impressed with a public trust and that the State is responsible for protection of the public’s interest in this land.
The Legislature further finds and declares that this public trust is part of the common law of Maine and generally derived from the practices, conditions and needs in Maine, from English Common Law and from the Massachusetts Colonial Ordinance of 1641-47. The public trust is an evolving doctrine reflective of the customs, traditions, heritage and habits of the Maine people. In Maine, the doctrine has diverged from the laws of England and Massachusetts.
The public trust encompasses those uses of intertidal land essential to the health and welfare of the Maine people, which uses include, but are not limited to, fishing, fowling, navigation, use as a footway between points along the shore and use for recreational purposes.
These recreational uses are among the most important to the Maine people today who use intertidal land for relaxation from the pressures of modern society and for enjoyment of nature’s beauty. [1985, c. 782, (NEW).]
The Legislature further finds and declares that the protection of the public uses referred to in this chapter is of great public interest and grave concern to the State. 12 §573. Public trust rights in intertidal land…..
2. Limitations. The rights described in subsection 1 do not include:
A. The removal from the intertidal land of any sand, soil, rocks or other minerals; [1985, c. 782,(NEW).]…….
[Note: This is one step toward the concept of protecting an ecosystem.]
3. Police powers. Municipalities shall have jurisdiction to exercise their police powers to control public use of intertidal land, except where such exercise is superseded by any state law.
TWO KEY PUBLIC TRUST COURT CASES: Illinois Central Railroad and Mono Lake
1892 U.S. Supreme Court Case Illinois Central Railroad Co v Illinois
“the leading case establishing the doctrine in the United States-the “lodestar” of the modern public trust doctrine” according the University of Chicago Law Review in 2004 quoting Joseph Sax’s 1968 Michigan Law Review article.
The Court held that “public trust submerged lands belong to the respective States within which they are found, with the consequent right to use or dispose of any portion thereof, when that can be done without substantial impairment of the interest of the public in the waters….” 146 U.S. 387, 435 setting a precedent for strict scrutiny of any private taking of public trust land. Applying this scrutiny to the legislature’s grant and deed of Lake Michigan bottomlands and waters, the Court voided the deed because under public trust law it did not promote a primary public purpose.
There are many references to public trust in the decision (see attachment); however, if you read the very tedious case, you will discover that the case hinges on the questions of impairment and public purpose as opposed to private purpose or gain. This fundamental principle stands even when specific interpretations may be more limiting, eg, in part of this case the court was concerned about the narrower question of whether the railroad would will interfere with the navigability on the lake.
The challenge is in drawing the line as to where an action is primarily private gain or has a clear public purpose. For example, the court in this case considered these narrower technical issues in reaching its decision:
when title to each particular parcel of waterfront property was conveyed or not conveyed to the railroad
whether a prior state law conveying the land to the railroad was valid or not, partly turning on whether or not the bill was read three times before passage,
whether it is the railroad or the state which has the rights to build piers etc. on the waterfront and
whether the piers will interfere with the navigability on the lake.
The court ruled that the earlier laws passed by the state legislature granting the land to the railroad were invalid and “the State of Illinois is the owner in fee of the submerged lands constituting the bed of Lake Michigan…..” However, the court goes on to say that if certain other piers do not interfere with navigability, then the railroad’s title to those piers and presumably the submerged land on which they are built land should be affirmed.
The point is that the notion of public trust provides substantive limitations on the state’s ability to sell pubic trust lands and waters, but this principle can get pretty muddy in its application as the court considers technicalities in the specifics of the case. (see attachment).
The difference between public trust law, which draws this line between private and public purpose use of public lands and water, and the rights of nature is that in rights of nature, nature itself has rights separate and apart from any private/public purpose or ownership.
Mono Lake: Public Trust extended to non-navigable tributaries and protection of ecological system
In 1983, the Supreme Court of California significantly expanded the application of public trust, in its decision on Mono Lake. In the case brought by National Audubon Society and others, the court ruled that the LA Dept of Water and Power, which was diverting large amounts of water from Mono Lake through an aquaduct for use by the city, would have to take into account the public trust values of the lake.
The court said that the public trust doctrine protects navigable waters from harm caused by the diversion of non-navigable tributaries, and that the state “has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible.” National Audubon Society v. Superior Court Alpine County (1983, 33 Cal.3d 419).
The ruling was not actually enforced until 1994 when the State Water Resources Control Board ruled that the level of the lake would have to be maintained so as to protect the public trust values and ecology of the lake. Since that time there has been some significant improvement in Mono Lake.
Unfortunately, subsequent decisions by the CA court with regard to natural resources have not referenced Mono Lake so the case remains as somewhat of an outlier.
ATTACHMENT: Excerpts from Illinois Central Railroad v Illinois referencing “Public Trust” or Simply “Trust” shown in bold
“There can be no irrepealable contract in conveyance of property by a grantor in disregard of public trust, under which he was bound to hold and manage it” p 146 US 389
“The Great Lakes are not in any appreciable respect affected by the tide, and yet on their waters, as said above, a large commerce is carried on, exceeding in many instances the entire commerce of states on the borders of the sea. When the reason of the limitation of admiralty jurisdiction in England was found inapplicable to the condition of navigable waters in this country, the limitation and all its incidents were discarded. So also, by the common law, the doctrine of the dominion over and ownership by the crown of lands within the realm under tidewaters is not founded upon the existence of the tide over the lands, but upon the fact that the waters are navigable, “tidewaters” and “navigable waters,” as already said, being used as synonymous terms in England. The public being interested in the use of such waters, the possession by private individuals of lands under them could not be permitted except by license of the Crown, which could alone exercise such dominion over the waters as would insure freedom in their use so far as consistent with the public interest. The doctrine is founded upon the necessity of preserving to the public the use of navigable waters from private interruption and encroachment — a reason as applicable to navigable fresh waters as to waters moved by the tide. We hold, therefore, that the same doctrine as to the dominion and sovereignty over and ownership of lands under the navigable waters of the Great Lakes applies which obtains at the common law as to the dominion and sovereignty over and ownership of lands under tidewaters in the borders of the sea, and that the lands are held by the same right in the one case as in the other, and subject to the same trusts and limitations. Upon that theory, we shall examine how far such dominion, sovereignty, and proprietary right have been encroached upon by the railroad company, and how far that company had at the time the assent of the state to such encroachment, and also the validity of the claim which the company asserts, of a right to make further encroachments thereon by virtue of a grant from the state in April, 1869. 
That the state holds the title to the lands under the navigable waters of Lake Michigan, within its limits in the same manner that the state holds title to soils under tidewater by the common law we have already shown, and that title necessarily carries with it control over the waters above them, whenever the lands are subjected to use. But it is a title different in character from that which the state holds in lands intended for sale. It is different from the title which the United States hold in the public lands which are open to preemption and sale. It is a title held in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein, freed from the obstruction or interference of private parties. The interest of the people in the navigation of the waters and in commerce over them may be improved in many instances by the erection of wharves, docks, and piers therein, for which purpose the state may grant parcels of the submerged lands; and so long as their disposition is made for such purpose, no valid objections can be made to the grants. It is grants of parcels of lands under navigable waters that may afford foundation for wharves, piers, docks, and other structures in aid of commerce, and grants of parcels which, being occupied, do not substantially impair the public interest in the lands and waters remaining, that are chiefly considered and sustained in the adjudged cases as a valid exercise of legislative power consistently with the trust to the public upon which such lands are held by the state. But that is a very different doctrine from the one which would sanction the abdication of the general control of the state over lands under the  navigable waters of an entire harbor or bay, or of a sea or lake. Such abdication is not consistent with the exercise of that trust which requires the government of the state to preserve such waters for the use of the public. The trust devolving upon the state for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. The control of the state for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining. It is only by observing the distinction between a grant of such parcels for the improvement of the public interest, or which, when occupied, do not substantially impair the public interest in the lands and waters remaining and a grant of the whole property in which the public is interested, that the language of the adjudged cases can be reconciled. General language sometimes found in opinions of the courts expressive of absolute ownership and control by the state of lands under navigable waters, irrespective of any trust as to their use and disposition, must be read and construed with reference to the special facts of the particular cases. A grant of all the lands under the navigable waters of a state has never been adjudged to be within the legislative power, and any attempted grant of the kind would be held, if not absolutely void on its face, as subject to revocation. The state can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties, except in the instance of parcels mentioned for the improvement of the navigation and use of the waters, or when parcels can be disposed of without impairment of the public interest in what remains, than it can abdicate its police powers in the administration of government and the preservation of the peace. In the administration of government, the use of such powers may for a limited period be delegated to a municipality or other body, but there always remains with the state the right to  revoke those powers and exercise them in a more direct manner, and one more conformable to its wishes. So with trusts connected with public property, or property of a special character, like lands under navigable waters; they cannot be placed entirely beyond the direction and control of the state……
Any grant of the kind is necessarily revocable, and the exercise of the trust by which the property was held by the state can be resumed at any time. Undoubtedly there may be expenses incurred in improvements made under such a grant which the state ought to pay, but, be that as it may, the power to resume the trust whenever the state judges best is, we think, incontrovertible. The position advanced by the railroad company in support of its claim to the ownership of the submerged lands, and the right to the erection of wharves, piers, and docks at its pleasure, or for its business in the harbor of Chicago would place every harbor in the country at the mercy of a majority of the legislature of the state in which the harbor is situated.
We cannot, it is true, cite any authority where a grant of this kind has been held invalid, for we believe that no instance exists where the harbor of a great city and its commerce have been allowed to pass into the control of any private corporation. But the decisions are numerous which declare that such property is held by the state, by virtue of its sovereignty, in trust for the public. The ownership of the navigable waters of the harbor and of the lands under them is a subject of public concern to the whole people of the state. The trust with which they are held therefore is governmental, and cannot be alienated, except in those instances mentioned of parcels used in the improvement of the interest thus held, or when parcels  can be disposed of without detriment to the public interest in the lands and waters remaining, 
“Public Trust Doctrine,” Michigan Environmental Law Deskbook, ICLE (1992)
(co-authored with J. Noonan)
“The Public Trust Doctrine,” 1975 Detroit College of Law Review 161 (1975)
The Community Environmental Legal Defense Fund (CELDF) has pioneered the concept of the rights of nature in the United States, working with local communities to write ordinances that acknowledge the rights of nature. Four towns in New Hampshire, two in Maine, one in Virginia and at least five in Pennsylvania now have local laws that recognize the rights of nature. See http://www.celdf.org/section.php?id=42
Source: HYPERLINK “http://www.maine.gov/doc/publications/traditional_use/TFMeetings/Meeting2/AmyMillspresentation11.pdf” www.maine.gov/doc/publications/traditional_use/TFMeetings/Meeting2/AmyMillspresentation11.pdf
Source: From All Maine Matters allmainematters.com/smallAMM-02-2006.pdf
Source: janus.state.me.us/legis/statutes/12/title12ch202-A.pdf http://supreme.justia.com/us/146/387/case.html
Source: HYPERLINK “http://supreme.justia.com/us/146/387/case.html” http://supreme.justia.com/us/146/387/case.html (and pages following marked in text within brackets)
In a later case (1976) the Illinois Supreme Court made clear that the watershed marker is whether or not the primary purpose of taking submerged lakeshore land is to benefit a private interest so they turned down a steel mill but it allowed the lakeshore to be extended for construction of Lake Shore Drive, which was deemed to be a public purpose.