History, Theory and Policy
Considerations in applying the
Public Trust Doctrine to
Groundwater
Sacramento Groundwater Authority
Meeting of the Board of Directors
August 8, 2013
Tony Francois
Staff Attorney, Pacific Legal Foundation
(916) 419-7111, tfrancois@pacificlegal.org, www.pacificlegal.org
1
Proposed:
 The Public Trust Doctrine does not apply to
percolating groundwater and, therefore, provides no
basis for state or local regulation of groundwater
production and use
2
Takeaway Points
 The Public Trust Doctrine as now interpreted by the California
courts has essentially no historical support
 Expansion of the Public Trust Doctrine is bad for legal and policy
reasons
 Legal reason: expands the scope of “background principles” of
property law in a way that undercuts settled property expectations
and may lead to takings liability
 Policy reason: usurps the role of the legislature to make important
public resource decisions
3
The story according to the
California Supreme Court
“From this origin in Roman law, the English common
law evolved the concept of the public trust, under
which the sovereign owns all of its navigable
waterways and the lands lying beneath them as trustee
of a public trust for the benefit of the people. The
State of California acquired title as trustee to such
lands and waterways upon its admission to the union.”
Nat’l Audubon Soc’y v. Superior Court, 33 Cal. 3d 419,
434 (1983).
4
Sources
 Glenn J. MacGrady, The Navigability Concept in the
Civil and Common Law: Historical Development,
Current Importance, and Some Doctrines that Don’t
Hold Water, 3 Fla. St. U.L. Rev. 511 (1975).
 Patrick Deveney, Title, Jus Publicum, and the Public
Trust: An Historical Analysis, 1 Sea Grant L.J. 13 (1976).
 James L. Huffman, Speaking of Inconvenient Truths---A
History of the Public Trust Doctrine, 18 Duke Envtl. L.
& Pol’y Forum 1 (2007).
5
Did the public trust exist
in Roman law?
“Things common to mankind by the law of nature, are
the air, running water, the sea, and, consequently, the
shores of the sea; no man therefore is prohibited from
approaching any part of the seashore while he abstains
from damaging farms, monuments, and buildings,
which are not in common as the sea is.” Institutes 2.1.1
6
The real meaning of
“things common to all” in Roman law
 “‘[T]hings common to all’ were so in part because of
the physical nature of the particular resources and the
limits of technology.” (Huffman).
 “In actuality, the sea and the seashore were ‘common
to all’ only insofar are they were not yet appropriated
to the use of anyone or allocated by the state. . . . It
was their character as ‘things common to all’ that
made the sea and seashore capable of individual
appropriation.” (Deveney).
7
 “If I drive piles into the sea . . . And if I build an island in the sea,
it becomes mine at once, because what is the property of no one
becomes that of the occupier.” (Digest 41.1.30.4).
 “What a person builds on the seashore becomes his, because
beaches are not public in the same way as those things which are
in the patrimony of the people, but as those things which were at
first produced by nature and which have not yet come into the
ownership of anyone. . . .” (Digest 41.1.14).
 “Roman law was innocent of the idea of trusts, had no idea at all
of a ‘public’ . . . as the beneficiary of such a trust, allowed no
legal remedies whatever against state allotment of land,
exploited by private monopolies everything (including the sea
and the seashore) that was worth exploiting, and had a general
idea of public rights that is quite alien to our own.” (Deveney).
 “What pleases the emperor, has the force of law.” (Institutes
1.2.6).
8
Did the public trust doctrine
exist in England?
 “There was no concept of a public trust in the early common
law—that is, the idea that the title of certain lands was held
inalienably by the Crown for the common use.” (Deveney).
 “No line is drawn . . . between those proprietary rights which the
king has as king and those which he has in his private capacity.
The nation, the state, is not personified; there are no lands
which belong to the nation or to the state.” (1 Pollock &
Maitland 518, quoted in Deveney).
 “By the reign of King John almost all the foreshore and the rivers
of the kingdom either were still held by the Crown as private
property or had been granted in fee to individual holders.”
(MacGrady).
9
Lord Hale and
the “prima facie” rule
 Thomas Digges, Elizabethan courtier: “Those thinges
whiche by the lawe of nature were left in common, are
by the lawes of this realme to the prince propre and
peculiare” and can be owned by private persons only
by “especiall graunte” of the king.
 Lord Hale’s De Jure Maris et Brachiorum Ejusdem
 “lands were presumed to remain with the king unless
expressly granted.” (Huffman).
10
Lord Hale’s tripartite understanding
of coastal property
 Jus privatum
 Jus regium
 Jus publicum
11
Jus publicum
 “The jus publicum in Hale’s view is solely an interest in
navigation and a public right to have navigable rivers
and the ports of the kingdom free of nuisances,
whether caused by the Crown or by a subject.”
(Deveney).
 To prevent even the Crown from authorizing a
nuisance.
12
What about Parliament?
 “[T]here has never been a doctrine of the public trust in England.
What the king alone might not be able to do after 1701 has never
been beyond the power of the king and Parliament together to
do, or beyond the power of Parliament alone.” (Deveney).
 “[T]here was no public trust doctrine in England related to
Crown ownership of submerged beds and the foreshore at the
time of the American Revolution. As a matter of English fact,
the beds and shores of virtually all navigable waters, tidal and
nontidal, were privately owned.” (MacGrady).
13
SCOTUS invents a history
“[W]hen the Revolution took place, the people of each
state became themselves sovereign; and in that
character hold the absolute right to all their navigable
waters and the soils under them for their own common
use. . . . The dominion and property in navigable
waters, and in the lands under them, [were] held by
the king as a public trust. . . . ” Martin v. Lessee of
Waddell, 41 U.S. 367, 410-11 (1842).
14
Scope of the Public Trust Doctrine
“Public trust easements are traditionally defined in
terms of navigation, commerce and fisheries. They
have been held to include the right to fish, hunt,
bathe, swim, to use for boating and general recreation
purposes the navigable waters of the state. . . . There is
a growing public recognition that one of the most
important public uses of the tidelands . . . is the
preservation of those lands in their natural state. . . .”
Marks v. Whitney, 6 Cal. 3d 251, 259 (1971).
15
Why expanding the doctrine
is problematic
 It conflates the jus publicum with the jus regium
 It unfairly expands the background principles of
property law
 “Any limitation so severe cannot be newly legislated or
decreed (without compensation), but must inhere in
the title itself, in the restrictions that background
principles of the State's law of property and nuisance
already place upon land ownership.” Lucas v. S.C.
Coastal Council, 505 U.S. 1003, 1029 (1992).
16
Judicial Takings
“If a legislature or a court declares that what was once an
established right of private property no longer exists, it has taken
that property, no less than if the State had physically
appropriated it or destroyed its value by regulation.” Stop the
Beach Renourishment v. Fla. Dep’t of Envtl. Prot., 130 S. Ct. 2592,
2602 (2010) (plurality opinion).
“If a judicial decision, as opposed to an act of the executive or the
legislature, eliminates an established property right, the
judgment could be set aside as a deprivation of property without
due process of law.” Id. at 2614 (Kennedy, J., concurring in part
and concurring in the judgment).
17
The policy problems with
expanding the public trust doctrine
“Any body of law will be fuzzy around the edges; that cannot be
helped. But the notion of an evolving unbounded set of
communal rights—whether they are constitutional or common
law, procedural or substantive, in all public and private property
strips clarity, certainty, and predictability from the very core of
the public trust doctrine. The modern American public trust
doctrine, resting on its narrow and inapposite English
precedential bed, has become little more than a convenient hook
on which those who would create and preserve certain
communal interests in real property have hung their litigious
hats.” Lloyd R. Cohen, The Public Trust Doctrine: An Economic
Perspective, 29 Cal. W. L. Rev. 239, 275 (1992).
18
“It is not too late for the courts to take a hard look at this
doctrine [of public trust] and to recognize it for what it
has become in many jurisdictions. Rather than a
protection of long-recognized public rights, which it
was, it has become a means for the states to regulate
and take private property without having to give even
passing consideration to the fifth amendment.” James
L. Huffman, Avoiding the Takings Clause Through the
Myth of Public Rights: The Public Trust and Reserved
Rights Doctrines at Work, 3 J. Land Use & Envtl. L. 171,
211 (1987).
19
“Expansion of the public trust doctrine for no other reason than to
protect the environment simply ignores the economic precedent
established by the original doctrine itself. Any furtherance of
the doctrine must be based upon rational thinking and
advancing the ‘common good.’ . . . [T]he most principled
approach to advancing the common good is balancing the
legitimate economic interests of individual property owners
against public resource preservation. When this is executed,
rarely can it be shown that the benefits of resource preservation
outweigh the economic concerns of property owners. Thus, any
expansion of the doctrine should be slow and scrutinized to the
highest degree and with a spirit of judicial restraint.” George P.
Smith II & Michael W. Sweeney, The Public Trust Doctrine and
Natural Law: Emanations Within a Penumbra, 33 B.C. Envtl. Aff.
L. Rev. 307, 342-43 (2006) (footnote omitted).
20
The Public Trust Doctrine
and Groundwater
 Subterranean streams and percolating groundwater. Cf. Water
Code s. 1200.
 Extraction of groundwater is a usufructury right, divisible into
overlying, appropriative, and prescriptive types.
 Rules of “reasonable use” and “correlative rights.” Katz v.
Walkinshaw, 141 Cal. 116, 121-22, 135-36 (1903).
 Public trust limitations have never been implied into the rules of
reasonable use and correlative rights.
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Q&A
Pacific Legal Foundation
Pacificlegal.org; twitter.com/PacificLegal
tfrancois@pacificlegal.org
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