A Comparative Guide to the Western States' Public Trust Doctrines: Public Values, Private Rights, and the Evolution Toward an Ecological 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 19 western states. In so doing, this Article seeks to make the larger point that, while the broad contours of the public trust doctrine, especially regarding state ownership of the beds and banks of navigable waters, have a federal law basis, 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, perceived needs, and perceived problems of each state.

This Article notes 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 shortages of water, submerged lands, and environmental amenities; and (4) a willingness to raise water and other environmental issues to constitutional status 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.

The Article includes an extensive Appendix that summarizes each of the 19 states’ public trust doctrines. These summaries include relevant constitutional provisions, statutory provisions, and cases.

Number of Pages in PDF File: 146

Keywords: public trust doctrine, common law, ecosystem services, prior appropriation, public rights, public values, ecological

Accepted Paper Series