PUB00109

• Year: 1995
• Title: Califormia Water
• CWCB Section: Interstate & Federal
• Author: Arthur L. Littlewort
• Description: History, overview, and explanation of water rights and legislation of California
• Publications - Doc Type: Historical

be capable of an interpretation consistent with contemporary
concerns for environmental quality.2

The public trust doctrine has certainly proven to have all of
these attributes. In the past twenty years it has been used very
effeEtively against the government in a manner consistent with
environmental quality concerns. Because it has become such an
integral component of California water law, it is the subject of a
fairly lengthy discussion here.

The Public Trust Doctrine Comes to the United States
The public trust doctrine arises from the belief that certain properties
should not be owned by private parties. Rather, they should be held
by the government for the benefit of all its citizens.
Professor Sax described the public trust doctrine in the follow-
ing manner-

. . . no grant may be made to a private party if that grant is of such
amplitude that the state will effectively have given up its authority
to govern, but a grant is not illegal solely because it diminishes in
some degree the quantum of traditional public uses.3

The origins of the public trust doctrine are found in the work of
Justinian, whose statement of the principles of Roman law included
the following concept-

By the law of nature these things are common to mankind-the air,
running water, the sea and consequently the shores of the sea.4

These things were held in trust by the state for the benefit of
all people, and this concept of common ownership ensured unlim-
ited public rights for commerce, fishing, and navigation.
The starting point of the public trust doctrine in the United
States is generally considered to be Arnold v. Mundy (1821) 1 Halsted,
1; 6 N.J.L.1,5 a case centered around the rights to an oyster bed in
Raritan Bay, New Jersey. Mundy claimed that he had a public right
to take oysters from beneath the navigable waters of the bay, while
Arnold, who owned property adjacent to the oyster bed, claimed the
sole right to do so. In supporting Mundy's claim, the court developed

2 Sax, "The Public Trust Doctrine in Natural Resource Law: Effective
Judicial Intervention," Volwne 68, Afich. L.Rev., page 471.
3 Sax, pages 488-489.
4 The Institute of Justinian 2.1.1, T. Cooper Translation, 2nd Edition, 1841.
5 Dunning, "The Public Trust Doctrine in "",,'estern \'Vater Law: Discord or
Harmony," 1984, 30 Rocky Mt. Min. L. Inst.. page 17-6.

The public trust doctrine is based on the
premise that certain things should be held
by the government for the benefit of all its
citizens.

The starting point of the public trust doc-
trine in the l.Inited States is an 1821 court
decision.

Chapter 3 Consumptive and Environmental Uses 73