Coastal Services Center

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For Further Consideration

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Don’t Overstate the Principles of the Trust

The principles discussed in Illinois Central are frequently overstated as absolutes. As with all other Public Trust cases, consider the basis of the Illinois Central decision as a unique set of circumstances before the court.

Acknowledge the Obvious

Despite the principles set forth in Illinois Central, the private occupation of vast areas of Public Trust lands is obvious. Illinois Central does not say that private interests cannot be created in Public Trust resources. The decision provides standards to apply to the creation of private interests.

What Signifies Clear and Unequivocal Intent?

Courts place the burden of proving intent to extinguish the Public Trust interest in lands on the plaintiff claiming the interest. Examine legislative acts to see how courts have interpreted them when deciding whether there is a continuing Public Trust interest in lands in which a private interest has been created.

Courts don’t just decide issues based on the law. Courts consider the equities involved, as well as the law, in reaching a decision.

Suggested Case Studies

For a discussion of the limitations imposed on states by the Public Trust Doctrine and other potential legal challenges to legislative transfers of interests in Public Trust lands, see Arizona Center for Law in the Public Interest v. Hassell, Pacific Reporter, Volume 837, Page 158 (Arizona Appeals Reports, Div. 1, 1991);

For an example of an invalid delegation of Public Trust authority to a political subdivision, see Squire v. Cleveland, Ohio State Reports, Volume 150, Page 303 (1948).

Further Reading

Archer, Jack H., The Public Trust Doctrine and the Management of America’s Coasts, Chapter. V, “Evolution of a State Public Trust Doctrine Program: Massachusetts Chapter 91,” University of Massachusetts Press (1994).

Sax, Joseph, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, Michigan Law Review, Volume 68, Pages 474 and 477 (1970).

Slade, David, Putting the Public Trust Doctrine to Work, 2nd edition, Coastal States Organization, Washington, DC (1997).