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“Progressive” Misrepresentations of the Public Trust Doctrine

A true environmentalist

A true environmentalist

While hosting a Montana radio talk show in the late 1990s, I interviewed a prominent left-wing environmental activist. He was promoting an anti-mining ballot measure. During the interview, he read from a 16th-century book that (he said) had shown that mining had all sorts of evil effects.

But something about the quote did not ring true. So I obtained a copy of the book myself.

When I read the passage the activist had read over the air, I found that my suspicions had been justified. He had taken the language completely out of context. The author was not against mining at all. He was listing exaggerated claims by mining opponents as a preliminary to rebutting them. The author was a professional mining engineer, and a big fan of mining.

Someone had lied to me, and to my radio audience. The guilty party was either the activist or the person who had, directly or indirectly, provided him with the quotation. I’ll never know the answer. When I contacted the activist to offer him an opportunity to explain, he failed to respond.

That’s when I learned that left-wing environmental activists sometimes abuse the truth. Subsequently, I learned that they abuse it quite a lot.

Consider how they depict the legal doctrine of “public trust.” The following gem comes from an outfit called the “Center for Progressive Reform:”

Across cultures and continents, communities have always imbued certain natural resources with a sense of permanent public ownership. . . . These resources belong to the public, and no private entity can ever acquire the right to monopolize or deprive the public of the right to use and enjoy them. In legal terms, this concept became known as the public trust doctrine, imported into the United States as common law from ancient Roman, Spanish, and English law.

Okay, then, the public trust doctrine is supposedly designed to restrict the freedom of “private entities.”

But re-read that passage carefully. Doesn’t it make you just a little suspicious? It states, “Communities have always imbued certain natural resources with a sense of permanent public ownership.” How would the Center for Progressive Reform know that? Do they know the history of how all communities have “always” worked? Are they gods?  Surely to support a generalization like that it is not enough to cite the law of Rome, Spain, and England. What of the rest of the world? What of other eras?

That’s the sort of smell that makes me hold my nose and dig a little further. It doesn’t take much digging to find out that someone at the Center for Progressive Reform is a fiction writer.  For example:

*    Their version of the public trust doctrine does not, in fact, come from “ancient Roman . . . law.” It’s just not there. Some writers do cite passages from Justinian’s Institutes or Digest. But like my 1990s radio guest, they tear the language out of context. Those passages do not address people’s rights over their own property. They refer only to the status of resources BEFORE those resources are reduced to private ownership.

*    Nor does their version of “public trust” come from the English common law. Although some point to Magna Carta, that document does not empower government against private citizens. On the contrary, it protects private citizens against the Crown.

*    Environmentalists are fond of claiming that the Supreme Court adopted their version of public trust in Illinois Central Railroad Co. v. Illinois (1892). But if you read that case, you find that it is really not about restricting private rights. The case held that a state government could not disregard its trust duties through a corrupt land sale.*

Is there a real public trust doctrine? Yes, there is.

But it is not about restricting private rights. It is about controlling government.

The historical (as opposed to fictional) public trust doctrine says that government’s agents are trustees or fiduciaries and are bound by the same duties that apply to private sector managers such as bankers, trustees, and guardians. Those duties include obligations of good faith (honesty), reasonableness, loyalty (including avoidance of conflict of interest), and impartiality (serving your beneficiaries fairly).

You can find the true public trust doctrine in the writings of Aristotle and Cicero and in essays by medieval scholars, British Presbyterian theorists, and early modern writers such as John Locke. From such sources many of the American Founders adopted the view that government actions in violation of fiduciary duties were void. That was basically the same approach the Supreme Court applied in the Illinois Central Railroad case.

The public trust doctrine was designed to control government, not to empower it. Claiming it as an instrument to allow government to control innocent citizens is not just a lie—it also turns the concept of “public trust” on its head.

You can read a corrective to the environmentalist public trust myth here and more about the real public trust doctrine here.

* * * *

* By the way, the Illinois Central Railroad case is pretty shaky as constitutional law. It was decided by a four-justice court minority, with three justices dissenting and two recusing themselves. The case held that the state had exceeded its “police power” through a land sale, but cited nothing in the U.S. Constitution supporting its decision. One might argue that the state violated the 14th Amendment, but the Court never said so.

Rob Natelson