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Public Trust
Dave Wilson, Jr.
Maryland Coastal Bays Program
 aws
restraining personal behavior for the common good, such as those relating
to guns, drunk driving, drugs or otherwise ill-advised use of personal
belongings have immediate and evident consequences. However, when
these belongings take the form of land or water, it requires more
foresight to see the cumulative and long-term impacts to the public
trust.
 he
Public Trust Doctrine, part of common law, recognizes this in the
United States by giving the public the right to safely fish, navigate
and recreate in tidal waters, lakes, rivers, and streams. The essence
of the law, whose jurisdiction lies largely with federal and state
governments, is to insure personal behavior on land or water does
not impede on this right. It holds that "all natural resources are
held in trust by the state" and conveys a right to use and enjoyment
of those resources so long as that use does not impede on another's
enjoyment.
he
notion of natural resources being the property of all provided the
foundation for the passage and legal backing of the Marine Mammal
Protection Act, Clean Water Act, Migratory Bird Treaty, Endangered
Species Act, and Environmental Protection Act- to name a few. In the
1970's it was largely used by commercial fishing interests who had
seen their livelihoods destroyed by industry.
he
doctrine and the notion of public trust runs counter to the argument
of property rights activists who have held that their rights to do
as they wish with their property supercedes the harm that things like
deforestation, nutrient and chemical runoff, careless development
or shooting endangered wildlife have on the long-term enjoyment of
people, wildlife and on future economic prosperity.
 ften
today, the Public Trust Doctrine is most relevant in cases where cumulative
impacts are affecting wildlife and/or water quality. Zoning, wetlands
laws, or fishing and hunting regulations are common examples. By asking
individuals to make minor sacrifices, by not filling wetlands or by
limiting their take of fish, fowl or other wildlife, the law recognizes
that the common good is more important than the appetite that has
historically been pervasive in the United States. It says the future
health of the country should not be compromised by a few.
 n
this vein, the Public Trust Doctrine says the state must recognize
the "jus privatum" or private property rights so long as they remain
subservient to the inalienable public trust over land and water. In
other words, property rights are acknowledgeable until they have a
significant impact on water quality or wildlife. The doctrine does
not address the ad hominem argument some use when they argue that
it's not fair that a given individual could do something a year ago
that is today illegal. When applied to slavery, witch burning, or
genocide the flaws in such arguments become apparent. All laws create
new restrictions on behavior.
 nd
private property restrictions are not new. It was in 530 A.D. when
the Roman Emperor Justinian in his famous "Institutes of Justinian"
decreed "By the law of nature, these things are common to all mankind:
the air, running water, the sea, and... the shores of the sea." As
Roman law formed the basis for that of many European countries, the
doctrine was adopted by England whose charters would form the basis
of law in America, which recognized the importance of rivers, bays
and oceans for commerce.
n
1842, the Supreme Court ruled that the Magna Carta made it clear that
King Charles II could not give away the dominion and property of land
in colonial America because fish and wildlife were held in public
trust. Since then, numerous court cases have upheld the notion of
the environmental and social welfare superceding individual desires.
 ublic
Trust Doctrine aside, environmental responsibility lies in our capacity
to forego a modicum of our rights and to act beyond the sphere of
law to do what we have learned is right for the community. Law simply
requires us to do the things we should already be doing voluntarily
for those who remain when we are gone.
For more information about the Maryland Coastal Bays Program (MCBP) go to:
 Maryland Coastal Bays Program
Previous Watersheds.tv feature on MCBP — More
Information Video
Email Dave
Wilson, Jr.
See past topics of In the Flow here!
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