Coastal Services Center

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Arguing the Law (1 of 2)

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Public Trust Cases: Past vs. Present

In deciding Public Trust cases, courts are often hampered by legislative acts and prior judicial opinions to the seeming detriment of the trust. Cases can often be distinguished by noting that

• Judicial statements in derogation of the Public Trust are not material to the case (for example, statements by courts that undermine the Public Trust often appear in cases in which the state was not a party)
• The factual context of the case is substantially different

When cases are directly in conflict, it may be better to argue that a prior case should no longer be followed, rather than attempt to reconcile the differences:

• The dynamic nature of the Public Trust Doctrine affords some logic for disregarding past precedent.
• Changes in interpretation can frequently be documented with legislation, legislative findings and purposes, and public and scientific reports that illustrate evolving circumstances, uses, and the finiteness and fragility of resources within the trust.