Renouncing the Public Trust Doctrine: An Assessment of the Validity of Idaho House Bill 794

45 Pages Posted: 29 Nov 2005  

Michael C. Blumm

Lewis & Clark Law School

Harrison Dunning

University of California, Davis

Scott W. Reed

Stanford Law School

Abstract

Under the influence of powerful irrigation and timber lobbies, the state of Idaho enacted a law in 1996 which renounced the application of the public trust doctrine to water rights and public land decisionmaking, in an effort to overturn several decisions of the Idaho Supreme Court. This article explains the genesis of that law, exposes its flaws, and questions its validity.

In particular, we maintain that the rights that Idaho legislature attempted to terminate are in fact inalienable, sovereign rights that a state cannot renounce. We also argue that a state cannot, consistent with the federal law, terminate public rights in lands conveyed to the state under the equal footing doctrine. Finally, we contend that the Idaho statute violates the state constitution's declaration of the public character of water within the state. The article notes that its analysis may have use beyond the state of Idaho, as several other western states have constitutional provisions that could be interpreted to incorporate the public trust doctrine.

Keywords: environmental law, natural resources law, public trust doctrine, water law

JEL Classification: K11, K32, Q26

Suggested Citation

Blumm, Michael C. and Dunning, Harrison and Reed, Scott W., Renouncing the Public Trust Doctrine: An Assessment of the Validity of Idaho House Bill 794. Ecology Law Quarterly 461, Vol. 24, No. 3, 1997. Available at SSRN: https://ssrn.com/abstract=851585

Michael C. Blumm (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States
503-768-6824 (Phone)
503-768-6701 (Fax)

Harrison Dunning

University of California, Davis ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States
530-752-2898 (Phone)

Scott W. Reed

Stanford Law School

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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