A New Water Law Vista: Rooting the Public Trust Doctrine in the Courts

52 Pages Posted: 6 Nov 2018

Date Written: September 9, 2018

Abstract

Courts largely view the public trust doctrine as limited by state legislative and executive policy. According to this widespread theory, states may be required to hold in trust a handful of historically-big waterbodies (referred to as “navigable” waters) for certain uses like commerce, but beyond that, states are free to dispose of water without considering the public’s interests.36 So there is no requirement that states consider, for example, the public’s interest in conserving Walker Lake, a lake much older that the state of Nevada itself. And not only can the public not meaningfully challenge a state’s legislative or executive decisions in state courts—but they can’t challenge the state’s abdication of the public trust in federal court, either. Because the scope of the trust is supposedly a state-law matter.

Courts and litigants have struggled to craft a theory that will allow the state’s trust duties to extend to more water and more uses, and perhaps most importantly, enforceable in both state and federal courts. I suggest such a theory here.

In short, this article explains why we should view the public trust doctrine as reflecting very basic principles of limited state authority over water. This limitation prevents states from seriously infringing on the public’s interest in all flowing water. In other words: when states (and occasionally the federal government) abdicate their public trust duties, they are permitting an infringement on the public’s fundamental right to water—a violation of due process and a violation of the states’ sovereign authority.

This theoretical framework allows federal courts to review a state’s decision to forego its trust duties, even when it needs to go beyond those historical, navigable waters. After all, viewed this way, enforcing the public trust is a remedy to protect the public’s interest in natural waters generally. Not only should litigants be able to argue for an expansion of trust duties in state courts under state constitutions, they should also be able to argue for this expansion in federal courts under the U.S. Constitution.

Interpreting which waters and uses are protected by the trust is, in effect, interpreting the extent of sovereign authority over water. That is a job uniquely for the judiciary. The court doors should be flung wide open in even the most restrictive of states, allowing citizens to challenge legislative and administrative decisions about water allocation. Courts will be empowered to expand the public trust even in the face of legislative and administrative obstinance.

Suggested Citation

Regalia, Joseph, A New Water Law Vista: Rooting the Public Trust Doctrine in the Courts (September 9, 2018). Available at SSRN: https://ssrn.com/abstract=3246518 or http://dx.doi.org/10.2139/ssrn.3246518

Joseph Regalia (Contact Author)

Loyola University Chicago Law ( email )

IL

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