New Zealand’s Public Trust Doctrine

<p>This paper presents an argument that there is a public trust doctrine which is part of New Zealand’s common law. The public doctrine imposes an obligation on administrative decision-makers, with respect to decisions that impact commonly held natural resources, to act in the interests of the public. I argue the doctrine was inherited by New Zealand in 1840, as part of the English common law, and that it has been subsequently recognised in the New Zealand common law. I also argue that the doctrine has not been extinguished by the Resource Management Act 1991 or the Marine Coastal Area (Takutai Moana) Act 2011: the common law doctrine supplements these regulatory regimes. My argument concludes that the doctrine is best conceived of as a ground of judicial review, perhaps under the heading of illegality, and that there are strong normative arguments for its augmentation by common law development or legislative codification.</p>

New Zealand’s Public Trust Doctrine

<p>This paper presents an argument that there is a public trust doctrine which is part of New Zealand’s common law. The public doctrine imposes an obligation on administrative decision-makers, with respect to decisions that impact commonly held natural resources, to act in the interests of the public. I argue the doctrine was inherited by New Zealand in 1840, as part of the English common law, and that it has been subsequently recognised in the New Zealand common law. I also argue that the doctrine has not been extinguished by the Resource Management Act 1991 or the Marine Coastal Area (Takutai Moana) Act 2011: the common law doctrine supplements these regulatory regimes. My argument concludes that the doctrine is best conceived of as a ground of judicial review, perhaps under the heading of illegality, and that there are strong normative arguments for its augmentation by common law development or legislative codification.</p>

The Struggle for Streeterville

This chapter assesses the implications of natural accretion, unauthorized landfilling, and a legally sanctioned public works project on the neighborhood known today as Streeterville. It illustrates the three periods following the struggle for control of the land of Streeterville: the first was relatively decorous, consisting largely of litigation over rights to land formed by natural accretion, the second was intense and largely extralegal, and the third period was when the wealthy landowners who claimed the land by riparian rights consolidated their control over the area, abetted by construction undertaken by institutions of impeccable social standing, such as Northwestern University. The chapter investigates why it took so long for the struggle over Streeterville to be resolved, arguing resolution came only when the claimants with the most resources started to build substantial structures on the land. It also examines why the filled land in this area of the lakefront is overwhelmingly held in private hands, whereas the land south of the Chicago River, in what is now Grant Park, is public. Ultimately, the chapter reviews how the public trust doctrine was invoked in challenging the artificial filling of submerged land in Streeterville, and analyzes the Illinois Supreme Court decision following the case.

The Lakefront Today

This chapter reviews how the political settlements and legal understandings canvassed in the account continue to affect the Chicago lakefront today. It offers brief snapshots of five more recent developments on the lakefront that reflect the influence of the past — and that may be indicative of the future. The chapter begins by recounting the boundary-line agreement of 1912 which planted the seeds of the Illinois Central's demise on the lakefront. Today, the railroad has largely disappeared from the lakefront, in both name and fact. The chapter then shifts to discuss the Ward cases, which continue to affect the shape of the lakefront. It chronicles the success of Millennium Park and the Illinois Supreme Court's demotion of the public dedication doctrine to a statutory right limited to Grant Park. The chapter also recounts the Deep Tunnel project and the challenges in the South Works site. Ultimately, it discusses the appearance of the public trust doctrine on the lakefront, being invoked by preservationist groups to challenge both a new museum and the construction of President Barack Obama's presidential library (called the Obama Presidential Center).

The Transformation of the Public Trust Doctrine

This chapter focuses on a remarkable rebirth of the public trust doctrine and traces the arc of its development on the Chicago lakefront in the twentieth century. It discusses how the public trust doctrine became the primary legal rubric for resolving controversies about what is permitted and forbidden on the lakefront. The chapter then asserts that the purpose of the doctrine has changed dramatically. It was originally to preserve public access to navigable waters, in order to allow the public to engage in commerce or fishing, then the focus changed with the environmental revolution in the 1970s. Today, the purpose is understood to be the preservation of public resources in the hands of public institutions. Ultimately, the chapter analyses how the doctrine became an antiprivatization doctrine for certain select categories of public property.

The Lake Front Case

This chapter discusses the most important decisions about property rights in American law: the Lake Front Case of 1892. It argues that the decision stands for the proposition that certain critical resources, most notably those associated with navigable waterways, must remain under the control of public authorities. The chapter examines how the central device of the Lake Front Case — the public trust doctrine — became a product of the exigencies of litigation. It also introduces Justice Stephen Field and his doctrinal basis to defeat the Illinois Central's powerful vested rights argument. The chapter then highlights the significance and consequences of the enactment and repeal of the Lake Front Act. It analyses how the public trust doctrine was not deployed in the litigation to freeze the submerged land in its original condition. Ultimately, the chapter reviews the longstanding controversy generated by the Illinois Central's presence on the lakefront.

Natural Resources and Natural Law Part II: The Public Trust Doctrine

Natural Resources and Natural Law Part I: Prior Appropriation analyzed claims by some western ranchers, grounded in natural law, that they have property rights in grazing resources on federal public lands through prior appropriation. Those individuals advocated their position in part through civil disobedience and armed standoffs with federal officials. They also asserted that their duty to obey theistic natural law overrode any duty to obey the Nation’s positive law. Similar claims that individual religious beliefs override positive law have been made recently regarding a range of other controversial issues, such as same-sex marriage, public insurance for birth control, and the right to bear arms. Prior appropriation doctrine is consistent with secular natural law theory. Existing positive law, however, accepts prior appropriation for western water rights but rejects its application to grazing rights on federal public lands, for reasons consistent with secular natural law. Natural law doctrine allows citizens to advocate for change but requires them to respect the positive law of the societies in which they live. Separation of church and state also bars natural law claims based on religious doctrine unless those principles are also adopted in secular positive law. This sequel addresses claims from the opposite side of the political-environmental spectrum, that natural law provides one justification for the public trust doctrine, and that courts should enforce an atmospheric public trust to redress catastrophic global climate change. Although some religious groups have embraced environmental agendas supported by religious doctrine, public trust claims are secular in origin. Just as natural law provides support for prior appropriation, it supports the idea that some resources, such as water, wildlife, and air, should be held in common rather than made available for private ownership. From this perspective, the two doctrines merge into a single issue of resource allocation. Which resources are best made available for appropriation as private property, and which are best left in common? Natural law theory helps to explain the liberty and welfare goals that inform those choices. Positive law embraces the public trust doctrine with respect to some natural resources, and does not preclude its applicability to the atmosphere or other common resources.