Public Trust Doctrine: In Need of Integration

Abstract

The Policy Forum “Legal bedrock for rebuilding America's ocean ecosystems” (M. Turnipseed et al. , 10 April, p. [183][1]) brings much-needed attention to ocean policy reform. The authors address the problem of too many agencies having management authority with little overall coordination. The authors' focus on the public trust doctrine as a solution seems misplaced, however. Most of the agencies managing resources in the Exclusive Economic Zone (EEZ) already work under a public-benefit mandate. The problem is that these agencies do not coordinate or integrate their work. It is unclear how the extension of the public trust doctrine out to the EEZ through executive order, legislation, or judicial interpretation would lead to more integrated management. Before we introduce new laws and regulatory bodies or give existing agencies further mandates, we must research the success (or failure) of existing legislation that aims to protect the public trust. I worked for 8 years implementing the Massachusetts regulatory program that administers the state's Public Waterfront Act of 1866. The Act protects the public's right in tidelands for “fishing, fowling, and navigating” and draws its legal basis from the public trust doctrine ([ 1 ][2]). Many properties within the jurisdiction of this program are not in compliance. The problem is not the lack of a legal basis but rather the limited resources allocated for compliance and enforcement with the law's mandate ([ 2 ][3]). To jump-start integrated management in the EEZ, we need much more than legislative, judicial, or executive backing of fundamental principles. We need regulatory mechanisms that have been proven to be effective in other comparable contexts, as well as recognition of the regional benefits of the wise use of the sea. 1. [↵][4]Massachusetts General Law (MGL), Chapter 91, The Massachusetts Public Waterfront Act \[codified at 310 CMR 9.01(2)(a) and 310 CMR 9.02\] (2008). 2. [↵][5]1. M. E. Portman , J. Env. Pol. Plan. 8, 293 (2006). [OpenUrl][6][CrossRef][7] [1]: /lookup/doi/10.1126/science.1170889 [2]: #ref-1 [3]: #ref-2 [4]: #xref-ref-1-1 View reference 1 in text [5]: #xref-ref-2-1 View reference 2 in text [6]: {openurl}?query=rft.jtitle%253DJ.%2BEnv.%2BPol.%2BPlan.%26rft.volume%253D8%26rft.spage%253D293%26rft_id%253Dinfo%253Adoi%252F10.1080%252F15239080601084737%26rft.genre%253Darticle%26rft_val_fmt%253Dinfo%253Aofi%252Ffmt%253Akev%253Amtx%253Ajournal%26ctx_ver%253DZ39.88-2004%26url_ver%253DZ39.88-2004%26url_ctx_fmt%253Dinfo%253Aofi%252Ffmt%253Akev%253Amtx%253Actx [7]: /lookup/external-ref?access_num=10.1080/15239080601084737&link_type=DOI