Public Property and the Democratization of Western Water Law: A Modern View of the Public Trust Doctrine

Abstract:     
This article traces the evolution of the public trust doctrine in Western water law. It claims that the doctrine is best understood through the remedies courts have prescribed concerning trust violations. Although there are four distinct categories of remedies in the case law, all promote either public access to trust resources or to decisionmakers who allocate them. Thus, according to the article, the public trust doctrine is a democratizing force - preventing monopolization of trust resources and requiring decisionmaking that is accountable to the public. The article predicts that state courts will continue to expand the public trust doctrine, relying especially on state constitutional provisions declaring water to be publicly owned. Finally, the article responds criticisms of the public trust doctrine by Professor Huffman by maintaining that the doctrine is a coherent body of law providing a necessary complement to prior appropriation principles, is not inconsistent with takings jurisprudence, and has sufficient grounding in state constitutions and statutes to continue to infuse public concerns into Western water law decisionmaking in the years ahead.

Keywords: Property law, Environmental Law, Water Law

JEL Classifications: K11, K32

Accepted Paper Series