A Comparative Guide to the Western States' Public Trust Doctrine: Public Values, Private Rights, and the Evolution Toward an Environmental Public Trust

Abstract

This companion Article to the fall 2007 A Comparative Guide to the Eastern Public Trust Doctrines explores the state public trust doctrines— emphasis on the plural—in the nineteen western states. In so doing, this Article seeks to make the larger point that, while the broad contours of the public trust doctrine have a federal law basis, especially regarding state ownership of the beds and banks of navigable waters, the details of how public trust principles actually apply vary considerably from state to state. Public trust law, in other words, is very much a species of state common law. Moreover, as with other forms of common law, states have evolved their public trust doctrines in light of the particular histories and the perceived needs and problems of each state. This Article observes that, in the West, four factors have been most important in the evolution of state public trust doctrines: (1) the severing of water rights from real property ownership and the riparian rights doctrine; (2) subsequent state declarations of public ownership of fresh water; (3) clear and explicit perceptions of the scarcity of water and the importance of submerged lands and environmental amenities; and (4) a willingness to consider water and other environmental issues to be of constitutional importance and/or to incorporate broad public trust mandates into statutes. From these factors, two important trends in western states’ public trust doctrines have emerged: (1) the extension of public rights based on states’ ownership of the water itself; and (2) an increasing, and still cutting-edge, expansion of public trust concepts into ecological public trust doctrines that are increasingly protecting species, ecosystems, and the public values that they provide.