The Public Trust Doctrine and Casino Development Along the Mississippi Gulf Coast

Abstract

439 THE LEGAL QUESTIONS RAISED when the longestablished public trust doctrine intersects with casino siting issues is unique to Mississippi. While gaming facilities are located along the U.S. coastline in such notable places as Atlantic City and Puerto Rico, the legal requirement that Mississippi’s casinos actually float on the waters along the coast invokes an entirely different body of law which other states have not chosen to confront. This article will begin with a historical overview of the public trust doctrine, beginning with its English common law roots and following its centuries old evolution to its modern day application in commercial, residential, and recreational contexts. As will be seen, the public trust is unique in American law in that, while it does not rise to the level of Constitutional protection, it is much more difficult to circumvent than mere statutory law. It is essentially permanent protection for the nation’s coastal areas—a covenant that runs with the land, barring alienation of many of the rights that usually accompany an ownership interest. Next, a history of Mississippi’s coastal casino development will provide the backdrop for the legal questions which inevitably arose. In less than five short years following the legalization of gaming in Mississippi, a number of casinos and environmental groups began to question what authority the State of Mississippi had in regulating the coastal waters and beaches which were experiencing new development for the first time in decades. Licenses, permits, and leases which for years had been under the jurisdiction of local authorities were becoming the purview of the state, and many people questioned whether the interpretation of coastal law was merely following the influx of astounding amounts of new investment money. Finally, the historic and controversial “Mississippi Land Swap” opened a new set of questions regarding the future of the public trust doctrine. Though lauded by many conservation groups and developers alike, closer scrutiny of the swap would seem to undermine the very purpose of public trust tidelands and set a precedent for further erosion of the doctrine which has preserved public access to beaches and water transportation routes since the Revolutionary War. While this article will provide few answers to what may be legal, permissible, or popular in regard to the public trust doctrine, it should be a useful guide to its evolution and an aid in the understanding of the perspectives of the parties involved. After all, as with any trust, the public trust involves beneficiaries, who are in this case all Americans.