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Monday, August 27, 2007

Craig on the Public Trust

Robin Kundis Craig (Florida State) has posted A Comparative Guide to the Eastern Public Trust Doctrine: Classifications of States, Property Rights, and State Summaries on SSRN.  Here's the abstract:

Public trust doctrine literature to date has displayed two distinct tendencies, both of which limit comprehensive discussion of the American public trust doctrines. At one end of the spectrum, articles focused on broader legal principles tend to discuss the public trust doctrine, as though a single public trust doctrine pervaded the United States. At the other end, articles focus on how one particular state implements its particular state public trust doctrine. Few articles have grappled with the richness and complexity of public trust philosophies that more comparative approaches to the nation's public trust doctrines – emphasis on the plural – can reveal.

This Article seeks to begin to restore that sense of comparative complexity to the discussion of public trust principles. It focuses on the public trust doctrines of 31 eastern states – all of the states east of the Mississippi River, plus the five states – Minnesota, Iowa, Missouri, Arkansas, and Louisiana – bordering the western bank of the Mississippi River. Moreover, it includes in an Appendix state-by-state summaries of the public trust doctrines in each of the 31 eastern states examined.

These eastern states provide a particularly rich subset of states for public trust discussion purposes. At its most basic, a state's public trust doctrine outlines public and private rights in water by delineating five definitional components of those rights: (1) the waters subject to state/public ownership; (2) the line or lines dividing private from public title in those waters; (3) the waters subject to public use rights; (4) the line or lines in those waters that mark the limit of public use rights; and (5) the public uses that the doctrine will protect in the waters where the public has use rights. The history of the eastern states' public trust doctrines has led to multiple variations in how these states define and assemble these five components. In particular, far more often than is the case in the later-settled West, public trust use rights in the East intrude – and for practical purposes always have intruded – upon privately owned riparian and littoral property.

Ben Barros

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