When considering acquisition of land from a municipality or other government agency for purposes of development, it is imperative to determine whether the desired land is held in the public trust. That could significantly derail development plans.
Typically, when land held in the public trust is conveyed, such land must remain subject to any public trust easement already burdening it. Therefore, although public trust land may be conveyed to a private entity, the land may not be redeveloped for a purpose inconsistent with the public trust purpose.
Violations of the public trust doctrine could result in injunctive relief to enjoin harm to trust land and resources and actions for damages. This article will discuss the basic principles of the public trust doctrine and will explore the application of the doctrine by several states, which in some cases has resulted in the broad interpretation of the doctrine to include nontraditional uses of public trust lands, such as recreation.
The public trust doctrine is an ancient common law principle of property law that establishes the obligation of the government to hold certain natural resources in trust for the public’s benefit. Historically, these protected resources have included lands under navigable waters, which are bodies of water that provide a channel for commerce and transportation of people and goods. Under the doctrine, these waters must remain open to the public for commerce, navigation, fishing, and recreation.
Rooted in the notion that government is better suited than private property owners to manage certain natural resources, the doctrine imposes on the government an affirmative duty to protect, maintain, and hold these resources in trust for the public’s benefit. Accordingly, the government may not abdicate its role as fiduciary of trust property, nor alienate or extinguish the trust by granting land held in trust to a private entity for nonpublic trust purposes.
The federal courts affirmed the public trust doctrine as early as the 19th century. Most notably, in 1892 the US Supreme Court concluded that Illinois held title to submerged land in navigable waters in the public trust and therefore could not convey the land to a railroad company if the grant impaired the public interest. The state could transfer the land only in strict subordination to the public trust easement created by the public right.
As highlighted below, state courts have since tailored the public trust doctrine based on changing public needs and societal concerns. In some states, the doctrine has been greatly expanded to protect nontraditional interests in trust resources, such as wildlife habitats, water conservation, and public access, as well as resources other than submerged lands, such as wildlife, including fish, waterfowl and inland wild animals, parklands, nonsubmerged public land, and subsurface waters. On the other hand, some states have recognized changing public needs, but have taken a more restrictive approach to interpreting the doctrine. The doctrine has also been applied to prevent changes in use from one public purpose to another.
New York has broadly interpreted the public trust doctrine. Depending on the natural resource, the doctrine in New York could cover a wide range of uses that would benefit the public. The doctrine has been extended to protect many nontraditional uses of public trust lands, such as boating, bathing, fishing, and leisure on the shore. Once a natural resource is subject to the public trust doctrine, the state will protect the resource for recreational use in addition to uses for which it was traditionally protected. New York has also created a historical and natural preserve trust to protect lands that are of special natural beauty, wilderness character, or geological, ecological, or historical significance. Such land must be preserved for natural areas, field laboratories for scientific research, and passive recreational opportunities.
New York has also focused the doctrine on protecting parkland for the public’s benefit. A parcel of land may constitute a park either expressly, such as by deed or legislative enactment, or by implication, such as by a continuous use of the property as a public park. Accordingly, New York courts have been tasked with determining what constitutes a “park.” In one case, a court concluded that an amphitheater could satisfy the requirement that land held in trust continue to be used for park purposes. And in 2017, the state’s Court of Appeals determined that the development of a retail complex, which would have included restaurants, public performance spaces, meeting places, and a rooftop farm for educational purposes, on a parking lot where Shea Stadium formerly stood would not constitute a continuing “park” purpose consistent with the historical use of such parkland as a baseball stadium, even if the purpose of the development would have been in the public interest.
California has expanded the public trust doctrine to include recreational interests, including the right to access navigable waters for swimming, boating, and engaging in other forms of water recreation, as well as to ecological interests to preserve natural resources in their natural state with the goal of protecting scenic and wildlife habitat values, including scenic views, clean air and water, and adequate habitat to support wildlife.
In addition to regulating fish and wildlife as provided under the common law public trust doctrine, California courts have imposed a duty on the government to protect these resources. For instance, in a 2008 case concerning wind farm operators, the plaintiff environmental group alleged that the operation of the turbine generators killed and injured thousands of birds, and the court reaffirmed that the public trust doctrine extends to wildlife, including birds, and concluded that members of the public may bring an action to compel the applicable authorizing state agency to enforce the trust over wildlife.
As early as 1821, the New Jersey Supreme Court has held that the coast and the sea are protected for all people for the purposes of access, navigation, fishing, fowling, sustenance, and all other uses of the water and its products, and that each person has the right to use such resources for his or her pleasure. Like other states, New Jersey has also focused on protecting recreational interests such as sunbathing, swimming, and engaging in shore activities, and such right may even extend to privately owned beaches in some cases. New Jersey courts have viewed the doctrine as ever-changing based on the needs of the population in the state. In one case, a court maintained that public access to the beach was protected for all people, and therefore municipalities could not charge user fees for the beach based on whether the beach-goer was a resident or nonresident.
Historically, the public trust doctrine in Massachusetts has been limited to protecting fishing, fowling, and navigation in navigable waters. This principle was codified as early as the Colonial Ordinance of 1641. The commonwealth maintains control over tidal lands for such purposes in the public’s interest. Public access to the seashore between the low and high tide lines is permitted for navigation, fishing, and fowling, but courts have held that use of privately owned land subject to the public trust doctrine for fishing, fowling, and navigation does not include the right to simply stroll, sunbathe, or otherwise engage in recreation unrelated to fishing, fowling, or navigation. Without permission from the landowner, general recreational activity would constitute trespassing. As with other states, land subject to the doctrine may only be conveyed if such land would continue to be used for the public trust purposes.
The primary rights recognized by the public trust doctrine in Pennsylvania are the public rights to fish and navigate. Pennsylvania courts have since expanded the doctrine to include protections for clean air, pure water, and the natural, scenic, historic, and esthetic values of the environment, based on the notion that public natural resources are the common property of all people. As such, the commonwealth is tasked with conserving and maintaining these resources for the benefit of all people.
Like in other states, navigable waters in Texas are protected for the public’s interest, and covered rights include navigation and fishing. Texas courts have recognized a public trust in all natural resources of the state, including the air, atmosphere, and aquatic life, and has preserved public access to the state’s beaches along the Gulf Coast.
The scope of the public trust doctrine will continue to evolve based on public needs and societal concerns in each state. As climate change concerns increase, it is likely that states will expand the doctrine to include even more nontraditional resources and uses, which in turn could impact the development potential of certain lands. Understanding the status of a property as a public trust resource is crucial to the due diligence process for potential development.
When purchasing land from municipalities or other government agencies, it is critical to determine if such land is subject to a public trust—a risk that could prevent development or change of use of the land.