Document Type

Article

Publication Date

2009

Abstract

Despite continuing hostility towards the public trust doctrine because of its potential to defeat private property rights and the will of elected representatives, the doctrine refuses to die. It continues to assure public access to and protection of certain natural resources of communal value; in fact, the doctrine's geographic reach and the activities it protects have expanded beyond its original conception. It is this doctrinal accretion that has drawn the attention of Professor James Huffman, who in a recent article criticizes the "ambitions" of public trust scholars who see in "an expansive public trust doctrine . . . a powerful tool for the protection and preservation of natural resources and the environment" because, among other failings, they rely on a "mythological history of the doctrine." This essay is intended as a response to Professor Huffman's critique.

Professor Huffinan's critical assessment of the alleged mythological history of the public trust doctrine is beside the point. Indeed, as he suggests, he is "tilting at windmills in trying to set the story straight." The story he criticizes has become a "fact" in the minds of judges who use it to justify a particular application of the doctrine. Retelling the story to prevent future applications of the doctrine could destabilize property law, which has embraced the doctrine for centuries. Even if the doctrine is a myth invented by legal scholars and judges, the legal fiction doctrine, which Professor Huffman's argument implicates, justifies it. Indeed, this essay argues that the public trust doctrine is a good legal fiction because it enables new uses of the doctrine to perform a gap-filling function in the absence of positive law and, therefore, that it deserves to continue unchallenged.

Because much has been written on the topic of the public trust doctrine, part II of the essay very briefly describes the doctrine's origins, its major features, and its most common uses. Part III sets out Professor Huffman's critique of the doctrine's origins and poses as a rejoinder the legal fiction doctrine, which justifies the use of fictions in similar situations. Part IV of the essay looks specifically at the Exclusive Economic Zone (EEZ), where numbers of wild fish are in a free fall because there is no coherent, comprehensive program to regulate activities in the area. This part of the essay also discusses the phenomenon of a regulatory commons, which, according to Professor William Buzbee, arises when there is not "a matching political-legal regime," leaving the underlying social ill unattended. The essay suggests that the public trust doctrine can fill the regulatory gap on the EEZ by offering an interim management regime with protective normative standards and other management tools, and thus end the stasis created by the regulatory commons that has left the EEZ's resources unprotected. By highlighting the underlying social ill, application of the doctrine may actually encourage the enactment of positive law that can displace the stop gap common law regime and bring more regulatory certainty and uniformity to the area.

The essay closes by asserting that, for these reasons, the public trust doctrine is a good legal fiction. Not only is the doctrine doing no harm, but its potential expansion could fill gaps in positive law and offer much needed protection for vulnerable resources of communal value. Therefore, Professor Huffman's cavil against further expansion of the doctrine because of its "mythic" origins deserves no more attention than it has been given here.

Publication Citation

61 S.C. L. Rev. 393-414 (2009)