71 Pages Posted: 29 Sep 2011 Last revised: 20 Jul 2012
Date Written: September 28, 2011
Since the 1970s, articles on the public trust doctrine — as articulated in judicial opinions, constitutional provisions, and statutes — are replete in legal literature. Yet, few articles discuss the actual implementation of the doctrine, and none are informed by qualitative research interviews with water managers. This Article explores this missing dimension through an empirical study of the “on the ground” trustees of Wisconsin — its water managers. Wisconsin’s legal framework is an example of a cutting-edge articulation of the public trust doctrine. Because Wisconsin has been on the forefront of developing the legal doctrine, and its water managers face budgetary constraints and conflicts between public rights and private property rights not unique to the state, this empirical study illustrates for those working in other states the tensions and structures that impede or enhance public trust protections. After exposing the systems that prevent water managers from fully carrying out their trustee duties, this Article provides several modest policy proposals for moving forward in a way that empowers water managers to satisfactorily meet their duties as trustees.
Keywords: public trust doctrine, water, riparian, Wisconsin, Department of Natural Resources, empirical study, qualitative research interviews, shoreland, piers, enforcement, politics, water policy, common pool resources, water commons
JEL Classification: K32
Suggested Citation: Suggested Citation
Scanlan, Melissa K., Implementing the Public Trust Doctrine: A Lakeside View into the Trustees' World (September 28, 2011). Ecology Law Quarterly, Vol 39: 123, 2012; University of Wisconsin Legal Studies Research Paper 1174. Available at SSRN: https://ssrn.com/abstract=1934972