Response--Public Trust Doctrine

We welcome Craig's support for the notion that establishing public trust doctrine principles in the United States Exclusive Economic Zone (EEZ) could prove important to federal oceans law and policy. Notwithstanding her concerns, the doctrine has burst out of its original confines—courts in many states (such as Florida, Louisiana, New Jersey, and Virginia) have expanded the doctrine's scope to protect various natural resources and public uses, and in so doing have authorized the protection of aquatic ecosystems ([ 1 ][1]–[ 4 ][2]). Additionally, several courts have concluded that the corpus of public trusts must be preserved—not just for the benefit of the current generation, but also for future generations [e.g., ([ 5 ][3])]. Thus, far from enshrining a right of today's citizens to fish, applying the public trust doctrine would impose an obligation to manage fishing in federal ocean waters in a sustainable manner. Moreover, improved understanding of the interconnectedness of ocean ecosystems lends weight to the conclusion that ensuring the ability of future generations to fish will require an ecosystem-based management regime created by means of a coastal and marine spatial planning framework ([ 6 ][4], [ 7 ][5]). Guerra-Pujol asserts that we promote a public trust doctrine–based ocean policy at the expense of property rights–based management programs. However, a federal public trust doctrine would not preclude the establishment of, for example, oil, gas, and renewable energy leases and fisheries catch-share programs; instead, it would guide the development of these policies such that they protect the public interest ([ 8 ][6]). Finally, Portman questions the added value of a federal ocean public trust doctrine when ocean-related agencies already have various mandates to act for the benefit of the U.S. public. But firmly establishing the public trust doctrine in the EEZ would explicitly impart a suite of specific duties and responsibilities to federal ocean trustees of the kind that are assumed by trustees of public, private, and charitable trusts ([ 8 ][6], [ 9 ][7]). The duties include those mentioned above—to preserve the trust corpus and to deal impartially among all beneficiaries (both present and future)—as well as the duties to administer the trust solely in the interest of the beneficiaries and to provide complete and accurate information to trust beneficiaries regarding the management of the trust ([ 10 ][8]). The Massachusetts Public Waterfront Act regulatory framework has not been successful because of noncompliance and lack of enforcement. Such a circumstance should not disqualify the public trust doctrine from informing national ocean policy. Indeed, it did not prevent the Massachusetts Ocean Management Plan from identifying its impetus as the state's public trust doctrine ([ 11 ][9]). Would applying the public trust doctrine to the EEZ help to establish the necessary incentives, responsibilities, and powers for federal agencies to work in an integrated fashion toward long-term sustainable ocean management? We think so; by providing a common, overarching public trust mandate, as well as a suite of enforceable trusteeship duties, the doctrine would work at multiple levels to help Congress and federal agencies reshape the regulatory framework used to manage U.S. ocean space and resources. It would provide the bedrock for the new national ocean policy envisioned by the president—a policy that emphasizes both intergenerational ecosystem protection and stewardship ([ 7 ][5]). 1. [↵][10] Coastal Petroleum Co. v. Chiles , 701 So. 2d 619, 624 (Fla. 1st Dist. Ct. App 1997). 2. Avenal v. State , 886 So. 2d 1085, 1101–1102 (La. 2004). 3. State Department of Environmental Protection v. Jersey Cent. Power and Light Co. , 308 A. 2d 671, 674 (N.J. Super. Ct. Law Div. 1973), reviewed on other grounds, 351 A. 2d 337 (N.J. 1976). 4. [↵][11] In re Steuart Transp. Co., 495 F. Supp. 38, 40 (E.D. Va. 1980). 5. [↵][12] W. J. F. Realty Corp. v. State , 672 N.Y.S. 2d 1007, 1012 (N.Y. Sup. Ct. 1998). 6. [↵][13]1. K. L. McLeod, 2. H. Leslie , Eds., Ecosystem-Based Management for the Oceans (Island Press, Washington, DC, 2009). 7. [↵][14]Presidential Memorandum, “National Policy for the Oceans, Our Coasts, and the Great Lakes,” 74 Fed. Reg. 28591 (2009). [OpenUrl][15] 8. [↵][16]1. G. Osherenko , J. Environ. L. Litig. 21, 317 (2006). [OpenUrl][17] 9. [↵][18]Restatement (Third) of Trusts § 76–84 (2007). 10. [↵][19] Slocum v. Borough of Belmar , 569 A. 2d 312, 317 (N.J. Super. Ct. Law Div. 1989). (“A public trustee is endowed with the same duties and obligations as an ordinary trustee. That is, the trustee owes to the beneficiary a duty of loyalty, a duty of care, and a duty of full disclosure.”) 11. [↵][20]Massachusetts Executive Office for Energy and Environmental Affairs, Massachusetts Ocean Management Plan (draft) , (Massachusetts Executive Office for Energy and Environmental Affairs, Boston, MA, 2009). 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