The Public Trust Doctrine: A Cracked Foundation
April 15, 2021 by Camilla Brandfield-Harvey
By Myles Douglas Young, Administrative Editor
The utilization of the Public Trust Doctrine in litigations is often premised on its supposed ancient Roman pedigree. This article explores the origins of the doctrine and finds that, in fact, the ancient doctrine was quite different from the one we see in the United States today. What errors do scholars make, and what do those errors mean for the survival of the modern doctrine?
The Public Trust Doctrine has been a major player in environmental law and property law since the 1800s. The first major case to address the Public Trust Doctrine in the United States was Arnold v. Mundy, in which the New Jersey Supreme Court held that the public, rather than the King or the federal government, owns the nation’s navigable waters, which are held by the government in trust. After that first case, the Public Trust Doctrine expanded. In Illinois Central Railroad Co. v. Illinois, the United States Supreme Court, expanding the Doctrine, held that Illinois’ title in lands under the navigable waters of Lake Michigan were not only held in trust for the public, but that they were held in trust for the purpose of navigation, fishing, and commerce. That ruling, and those before it, were based upon U.S. courts’ interpretation of Roman and English law; an understanding, as is discussed below, which is incorrect. That misguided interpretation of ancient laws has the potential to corrode the Public Trust Doctrine as a mechanism for environmental change, especially since contemporary courts have already started narrowing the Doctrine.
In the time of the Roman emperors, laws were amorphous. The law was comprised of promulgations from emperors, usually sent as letters in response to inquiries, which were often contradictory. For this reason, as well as the use of the ius gentium, or the law of nations, laws were seldom applied in the same way throughout the Empire. To attempt to remedy this issue, Emperor Justinian created a commission to consolidate existing laws. The eventual result of the commission’s labor was the Corpus Iuris Civilis, a compendium of all outstanding civil laws. It is in this compendium where the first traces of the modern Public Trust Doctrine appear:
Et quidem naturali iure communis sunt omnium haec : aer et aqua profluens et mare et per hoc litora maris. Nemo igitur ad litus maris accedere prohibitur, dum tamen villis et monumentis et aedificiis abstineat, quia non sunt iuris gentium, sicut et mare. Flumina autem omnia et portus publica sunt : ideoque ius piscandi omnibus commune est in portibus fluminibusque. Est autem litus maris, quatenus hibernus fluctus maximus excurrit. Riparum quoque usus publicus est iuris gentium sicut ipsius fluminis : itaque navem ad eas appellere, funes ex arboribus ibi natis religare, onus aliquid in his reponere cuilibet liberum est, sicuti per ipsum flumen navigare.
And so, all these things are communal by natural right: the air, flowing water, the sea, and, through this, the shores of the sea. No one, therefore, is prohibited from approaching the seashore, so long as he abstains from villas, monuments, and buildings, because they are not subject to the laws of nations, as the sea is. So too all rivers and ports are public: and, therefore, the right to fish is communal to all in ports and rivers. So too the public use of the banks of the river is the law of nations, just as the rivers themselves: and so, anyone who pleases to bring his ship to the banks, to attach his ropes from the trees growing there, to place any part of his cargo on them, is free to do so, just as he is free to navigate the river itself.
There have been many critiques of using this passage as a foundation for the wide-reaching Public Trust Doctrine we see today. The most damning of these arguments is that there was, in fact, no guarantee of public use of lands in Roman times. The Roman sense of the phrase “common to all,” was more Lockean in nature. As soon as one staked a claim to land that was public, it immediately became private, owned by that individual. This is in great conflict with the modern conceptualization of the Public Trust Doctrine, where states can be disallowed from selling land under navigable waters held in the public trust. The only possible course of action in Roman times was to bring an injunction against the individual impeding access to navigable waterways and ports. Even then, the available remedy and often the merit of the claim were left up to the sole will of the provincial governor.Additionally, the Romans made no distinction between the private assets of the emperor and those he held in trust for the people until very late in the Empire’s existence. Therefore, the assets supposedly held in common were his to dispose of as he saw fit, so long the emperor had staked a claim to them. For these reasons, the Corpus Iuris Civilis has proven an unstable foundation for the modern iteration of the Public Trust Doctrine.
The next trace of the Public Trust Doctrine appeared in the Magna Carta. The Magna Carta was a series of agreements between King John and the barons, or nobleman, of England, that was issued in order to assure the barons’ allegiance to the Crown and avoid civil war. This document guaranteed the barons certain rights in exchange for their loyalty. The passages upon which parts of the modern Public Trust Doctrine are premised discuss fish weirs and the defense of certain lands by soldiers of the barons:
Omnes kidelli decetero deponantur penitus per Tamisiam et Medeweiam et per totam Angliam nisi per costeram maris.
Henceforth, all fish weirs shall be put down harshly throughout the Thames, the Medway, and all of England, unless on the coast of the sea.
Nulla riparia decetero defendatur, nisi ille fuerunt in defense tempore regis Henrici avi nostri, per eadem loca et eosdem terminus sicut esse sonsueverunt tempore suo.
Henceforth, no shores of rivers shall be defended, unless they are those which were defended in the time of King Henry, our grandfather, at the same location and same boundaries as they were held in his time.
Many of the same critiques befall these passages of the Magna Carta as those of the Corpus Iuris Civilis. At the time the Magna Carta was written, it was agreed that the Crown held title to all lands and waters. The Magna Carta did not change that fact. The only reconceptualization of property rights realized in the Magna Carta was the right of barons to deny the Crown and the public access to their private lands. The passages above, in fact, only provide for two changes, neither of which are compatible with our modern conception of the Public Trust Doctrine. Clause 23 prevents the creation of fish weirs “henceforth,” thereby consolidating the power not of the common class, but of the barons themselves. Clause 16, likewise, did nothing for commoners, but rather limited the Crown’s ability to restrict the fishing rights of others until the King had completed his recreation in a body of water. Again, this consolidates not the power of the common people, but that of the barons. Neither of these excerpts creates any public right. Additionally, like their Roman counterparts, the English (at this time) had not yet made any distinction between lands which the King held privately and those which he held in public trust.
For these reasons, reliance on ancient Roman and English law is misplaced. The Roman “Public Trust Doctrine” dealt entirely with private claims to coastal land, while the English version dealt solely with securing water rights of Barons as against the Crown.
So, what does this misplaced reliance on ancient passages mean? When we cite them for our modern understanding of the Public Trust Doctrine, we do so incorrectly. These incorrect interpretations are at this point almost ancient themselves. The earliest American case utilizing these fallacies dates back to 1821, and the Supreme Court validated them in 1876. Every state which has been founded since that first ruling likely inherited the widespread misinterpretation of the Doctrine into their constitutions, rendering their mistake permanent, save an amendment. The only possible danger facing the modern Public Trust Doctrine as it stands today is the United States Supreme Court. The growing power of originalist theory in federal courts gives rise to this potential concern. An originalist interpretation of the federal Public Trust Doctrine, which is indeed based upon the ancient form of the Doctrine, could invalidate the modern federal form altogether. A “pure” originalist would argue that, since the purpose of the original, ancient doctrine was simply to (i) allow citizens to claim land alongside navigable waters; (ii) avoid the establishment of royal fish weirs, which deplete the downstream fish population; and (iii) deny citizens the ability to fish when the King is also fishing, there is no basis for the modern interpretation of the Doctrine, and it should therefore be abandoned. Beyond that initial argument, originalists could also argue that these concerns are addressed by federal fishing law, federal property law, and federal regulations, superseding any potential claims that common law should prevail.
As discussed above, erroneous interpretations of the Public Trust Doctrine have permeated the American legal landscape for centuries. Should the Supreme Court decide to correct the record and overrule Illinois Central Railroad, the Court could remove the Doctrine from federal “common law” altogether. As the Court becomes more politicized, those Justices who disfavor climate-friendly outcomes may feel inclined to do so, especially those who are “pure” originalists. However, this move would require the overturning of many cases, destroy centuries-old precedent, and certainly create an uproar amongst legal scholars, making it unlikely, at least for now. The takeaway, then, is that despite its false founding, the Public Trust Doctrine will likely remain in its current form for years to come.
 Carolyn Kelly, Where the Water Meets the Sky: How an Unbroken Line of Precedent from Justinian to Juliana Supports the Possibility of a Federal Atmospheric Public Trust Doctrine, 17 N.Y.U. Envtl. L. J. 183(2019).
 Mundy, 6 N.J.L. 1, 11–12 (1821).
 146 U.S. 387, 435, 452 (1892).
 Id. at 458.
 See, e.g., Juliana v. United States. 947 F.3d 1159 (9th Cir. 2020); Chernaik v. Kitzhaber, 328 P.3d 799, 800 (Or. Ct. App. 2014).
 John N. Hazard, Roman Law, Encyclopaedia Britannica, https://www.britannica.com/topic/Roman-law (last visited Jan. 22, 2021).
 The ius gentium was a form of law that applied a mixture of local customs and Roman law, somewhat mirroring the considerations of courts of equity. This form of law became more widely used as the Roman Empire continued to spread. See Ius Gentium, in Encyclopaedia Britannica, https://www.britannica.com/topic/jus-gentium-Roman-law (last visited Jan. 22, 2021).
 See, e.g., Hazard, supra note 1.
 J. Inst. 2.1.1–4
 Id. (Myles Douglas Young, trans.)
 See, e.g., Patrick Deveney, Title, Jus Publicum, and the Public Trust: An Historical Analysis, 1 Sea Grant L. J. 13, 37 (1976).
 See James L. Huffman, Speaking of Inconvenient Truths – A History of the Public Trust Doctrine, 18 dukelpf 1, 14 (2007); See also James L. Huffman, The Public Trust Doctrine: A Brief (and True) History, 10 Geo. Wash. J. Energy & Envtl. L. 15, 15–17 [hereinafter A Brief History].
 Huffman, Speaking of Inconvenient Truths, supra note 9, at 17.
 Id. at 15.
 Deveney, supra note 8.
 Id. at 21.
 Doris Mary Stenton, Magna Carta, Encyclopaedia Britannica, https://www.britannica.com/topic/Magna-Carta (last visited Jan. 22, 2021).
 Magna Carta clause 23 (1225).
 Id. (Myles Douglas Young, trans.).
 Id. clause 16 (1225).
 Id. (Myles Douglas Young, trans.).
 Huffman, The Public Trust Doctrine: A Brief (and True) History, supra note 9, at 19.
 A term for a particular type of fishing trap used in a body of water with a current.
 Matthew Hale, A Treatise De Jure Maris et Brachiorum Ejusdem (1670), reprinted in Start A. Moore, A History of the Foreshore and the Law Relating Thereto. 370, 373 (1888).
 See A Brief History, supra note 9, at 19.
 Mundy, 6 N.J.L. 1 (1821).
 Barney v. Keokuk, 94 U.S. 324 (1876).
 Those who believe that original meaning can overcome stare decisis. See Zachary B. Pohlman, Stare Decisis: What States Can Learn from Gamble, Note, 95 Notre Dame L. Rev. 1731, 1733–42 (2020).