The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention
Joseph L. Sax
I. THE NATURE OF THE PUBLIC TRUST DOCTRINE
A. The Historical Background
The source of modern public trust law is found in a concept that received much attention in Roman and English law—the nature of property rights in rivers, the sea, and the seashore. That history has been given considerable attention in the legal literature, and need not be repeated in detail here. But two points should be emphasized. First, certain interests, such as navigation and fishing, were sought to be preserved for the benefit of the public; accordingly, property used for those purposes was distinguished from general public property which the sovereign could routinely grant to private owners. Second, while it was understood that in certain common properties—such as the seashore, highways, and running water—“perpetual use was dedicated to the public,rsquo;rsquo; it has never been clear whether the public had an enforceable right to prevent infringement of those interests. Although the state apparently did protect public uses, no evidence is available that public rights could be legally asserted against a recalcitrant government. It has been said of the elaborate categories of common properties in Roman law that In England, the history of public uses is closely involved with a struggle between the Crown and Parliament. As a result,
there was a time when the Crown could grant away to the subject the royal demesnes and landed possessions at pleasure; but now, by statute law, such royal grants are prohibited, and the Crown lands cannot be so aliened. So much, therefore, of the seashore as has not actually been aliened by grant, and bestowed on lords of manors and other subjects, remains vested in the Crown, incapable of alienation.
But it is important to realize that the inability of the Sovereign to alienate Crown lands was not a restriction upon government generally, but only upon the King:
The ownership of the shore, as between the public and the King, has been settled in favor of the King; but, as before observed, this ownership is, and had been immemorially, liable to certain general rights of egress and regress, for fishing, trading, and other uses claimed and used by his subjects. These rights are variously modified, promoted, or restrained by the common law, and by numerous acts of parliament, relating to the fisheries, the revenues and the public safety.
Thus, whatever restraints the law might have imposed upon the King, it was nonetheless within the authority of Parliament, exercising what we would call the police power, to enlarge or diminish the public rights for some legitimate public purpose.
As carried over to American law, his history has produced great confusion. Our system has adopted a dual approach to public property which reflects both the Roman and the English notion that certain public uses ought to be specially protected. Thus, for example, it has been understood that the seashore between high and low tide may not be routinely granted to private owners as was the general public domain under the Homestead Act and similar laws. It has rather been a general rule that land titles from the federal government run down only to the high water mark, with title seaward of that point remaining in the states, which, upon their admission to the Union, took such shore lands in “trusteeship” for the public.
Whether and to what extent that trusteeship constrains the states in their dealings with such lands has, however, been a subject of much controversy. If the trusteeship puts such lands wholly beyond the police power of the state, making them inalienable and unchangeable in use, then the public right is quite an extraordinary one, restraining government in ways that neither Roman nor English law seems to have contemplated. Conversely, if the trust in American law implies nothing more than that state authority must be exercised consistent with the general police power, then the trust imposes no restraint on government beyond that which is implicit in all judicial review of state action—the challenged conduct, to be valid, must be exercised for a public purpose and must not merely be a gift of public property for a strictly private purpose.
The question, then, is whether the public trust concept has some meaning between the two poles; whether there is, in the name of the public trust, any judicially enforceable right which restrains governmental activities dealing with particular interests such as shore lands or parklands, and which is more stringent than are the restraints applicable to governmental dealings generally.
Three types of restrictions on governmental authority are often thought to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third, the property must be maintained for particular types of uses. The last claim is expressed in two ways. Either it is urged that the resource must be held available for certain traditional uses, such as navigation, recreation, or fishery, or it is said that the uses which are made of the property must be in some sense related to the natural uses peculiar to that resource. As an example of the latter view, San Francisco Bay might be said to have a trust imposed upon it so that it may be used for only water-related commercial or amenity uses. A dock or marina might be an appropriate use, but it would be inappropriate to fill the bay for trash disposal or for a housing project.
These three arguments have been at the center of the controversy and confusion that have swirled around the public trust doctrine in American law. Confusion has arisen from the failur
剩余内容已隐藏，支付完成后下载完整资料
原文节选：
The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention
Joseph L. Sax
I. THE NATURE OF THE PUBLIC TRUST DOCTRINE
A. The Historical Background
The source of modern public trust law is found in a concept that received much attention in Roman and English law—the nature of property rights in rivers, the sea, and the seashore. That history has been given considerable attention in the legal literature, and need not be repeated in detail here. But two points should be emphasized. First, certain interests, such as navigation and fishing, were sought to be preserved for the benefit of the public; accordingly, property used for those purposes was distinguished from general public property which the sovereign could routinely grant to private owners. Second, while it was understood that in certain common properties—such as the seashore, highways, and running water—“perpetual use was dedicated to the public,rsquo;rsquo; it has never been clear whether the public had an enforceable right to prevent infringement of those interests. Although the state apparently did protect public uses, no evidence is available that public rights could be legally asserted against a recalcitrant government. It has been said of the elaborate categories of common properties in Roman law that In England, the history of public uses is closely involved with a struggle between the Crown and Parliament. As a result,
there was a time when the Crown could grant away to the subject the royal demesnes and landed possessions at pleasure; but now, by statute law, such royal grants are prohibited, and the Crown lands cannot be so aliened. So much, therefore, of the seashore as has not actually been aliened by grant, and bestowed on lords of manors and other subjects, remains vested in the Crown, incapable of alienation.
But it is important to realize that the inability of the Sovereign to alienate Crown lands was not a restriction upon government generally, but only upon the King:
The ownership of the shore, as between the public and the King, has been settled in favor of the King; but, as before observed, this ownership is, and had been immemorially, liable to certain general rights of egress and regress, for fishing, trading, and other uses claimed and used by his subjects. These rights are variously modified, promoted, or restrained by the common law, and by numerous acts of parliament, relating to the fisheries, the revenues and the public safety.
Thus, whatever restraints the law might have imposed upon the King, it was nonetheless within the authority of Parliament, exercising what we would call the police power, to enlarge or diminish the public rights for some legitimate public purpose.
As carried over to American law, his history has produced great confusion. Our system has adopted a dual approach to public property which reflects both the Roman and the English notion that certain public uses ought to be specially protected. Thus, for example, it has been understood that the seashore between high and low tide may not be routinely granted to private owners as was the general public domain under the Homestead Act and similar laws. It has rather been a general rule that land titles from the federal government run down only to the high water mark, with title seaward of that point remaining in the states, which, upon their admission to the Union, took such shore lands in “trusteeship” for the public.
Whether and to what extent that trusteeship constrains the states in their dealings with such lands has, however, been a subject of much controversy. If the trusteeship puts such lands wholly beyond the police power of the state, making them inalienable and unchangeable in use, then the public right is quite an extraordinary one, restraining government in ways that neither Roman nor English law seems to have contemplated. Conversely, if the trust in American law implies nothing more than that state authority must be exercised consistent with the general police power, then the trust imposes no restraint on government beyond that which is implicit in all judicial review of state action—the challenged conduct, to be valid, must be exercised for a public purpose and must not merely be a gift of public property for a strictly private purpose.
The question, then, is whether the public trust concept has some meaning between the two poles; whether there is, in the name of the public trust, any judicially enforceable right which restrains governmental activities dealing with particular interests such as shore lands or parklands, and which is more stringent than are the restraints applicable to governmental dealings generally.
Three types of restrictions on governmental authority are often thought to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third, the property must be maintained for particular types of uses. The last claim is expressed in two ways. Either it is urged that the resource must be held available for certain traditional uses, such as navigation, recreation, or fishery, or it is said that the uses which are made of the property must be in some sense related to the natural uses peculiar to that resource. As an example of the latter view, San Francisco Bay might be said to have a trust imposed upon it so that it may be used for only water-related commercial or amenity uses. A dock or marina might be an appropriate use, but it would be inappropriate to fill the bay for trash disposal or for a housing project.
These three arguments have been at the center of the controversy and confusion that have swirled around the public trust doctrine in American law. Confusi
剩余内容已隐藏，支付完成后下载完整资料
资料编号：[239644]，资料为PDF文档或Word文档，PDF文档可免费转换为Word
以上是毕业论文外文翻译，课题毕业论文、任务书、文献综述、开题报告、程序设计、图纸设计等资料可联系客服协助查找。
