Tuesday, November 29, 2005

Blumm, Dunning and Reed on Renouncing the Public Trust

Michael C. Blumm , Harrison Dunning and Scott W. Reed (Lewis & Clark Law School , UC Davis and Stanford Law School) have posted Renouncing the Public Trust Doctrine: An Assessment of the Validity of Idaho House Bill 794 on SSRN. Here is the abstract:

    Under the influence of powerful irrigation and timber lobbies, the state of Idaho enacted a law in 1996 which renounced the application of the public trust doctrine to water rights and public land decisionmaking, in an effort to overturn several decisions of the Idaho Supreme Court. This article explains the genesis of that law, exposes its flaws, and questions its validity.

    In particular, we maintain that the rights that Idaho legislature attempted to terminate are in fact inalienable, sovereign rights that a state cannot renounce. We also argue that a state cannot, consistent with the federal law, terminate public rights in lands conveyed to the state under the equal footing doctrine. Finally, we contend that the Idaho statute violates the state constitution's declaration of the public character of water within the state. The article notes that its analysis may have use beyond the state of Idaho, as several other western states have constitutional provisions that could be interpreted to incorporate the public trust doctrine.

Ben Barros

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Thanks for pointing to Blumm, Dunning, and Reed on Public Trust. It's a good paper--once you get to Section III. You might want to warn your readers about that, because Sections I and II are so tendentious that a reader might fling the paper across the room before discovering the good part.

The goodness doesn't extend to the conclusion, though, because while the middle of the paper argues powerfully that Idaho cannot abandon its public trust authority over navigable waterways, that part of the paper hardly even attempts to show why the Legislature can't repudiate a fairly recent judicial extension of public-trust law to non-navigable waterways, which is the big issue described so unfairly in the early parts of the paper.

I think that a writer(s) who yokes a piece of good scholarship to a polemic by wilfully confusing key terms, expecting the good part of the team to drag the reader home, acts dishonestly.

Posted by: Mark Seecof | Dec 7, 2005 6:44:56 PM

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