Public Property and the Democratization of Western Water Law: A Modern View of the Public Trust Doctrine

Abstract

Professor Blumm traces the evolution of the modern public trust doctrine in the West. He claims the doctrine is best understood by focusing on the remedies courts prescribe for trust violations. Although he sees four distinct categories of remedies in the case law, he asserts that they all possess the unifying theme of promoting public access to trust resources or to decision makers with authority to allocate those resources. Thus, the trust doctrine is a democratizing force ― preventing monopolizing of trust resources and promoting decision making that is accountable to the public. Professor Blumm predicts that state courts will continue to expand the public trust, relying especially on constitutional provisions declaring water to be publicly owned. Finally, replying to Professor Huffman's criticisms of the public trust doctrine, he argues that the doctrine is a coherent body of law that supplies a necessary complement to prior appropriation principles, is not inconsistent with fifth amendment "takings" jurisprudence, and has sufficient grounding in various state constitutions and statutes to continue to infuse public concerns into Western water law in the years ahead.

Although except for Hawaii there have been no wholesale applications of the trust doctrine to Western water during the last quarter-century, the arguments advanced by this article may still be pressed in Western states. Given looming water shortages, they should be tried.

Keywords: Environmental Law, Public Trust Doctrine, Natural Resources Law, Water Law, Role of the Courts

JEL Classification: K11, K23, K32, N42, N51, P14, Q15, Q24, Q25, Q28, Q34