Friday, November 14, 2014

Blumm & Schaffer on The Federal Public Trust Doctrine

Michael Blumm (Lewis & Clark) and Lynn Schaffer (Lewis & Clark) have posted The Federal Public Trust Doctrine: A Law Professors' Amicus Brief on SSRN.  Here's the abstract:

This amicus brief, signed by more than 50 law professors with over a collective 1100 years of teaching experience, argues that the D.C. Circuit's interpretation that the public trust doctrine is solely a product of state law -- and therefore inapplicable to the federal government -- was erroneous. The brief therefore urges the Supreme Court to review the lower court's decision in Alec L v. McCarthy, 561 F.Appx. 7 (D.C.Cir. 2014).

The brief claims that the public trust doctrine has been misunderstood as purely a matter of state common law when in fact it is an inherent limit on sovereignty antedating the U.S. Constitution, which was preserved by the Framers as a reserved power restriction on both the federal and state governments. Nothing in the Court’s recent decision in PPL Montana v. Montana, 132 S.Ct. 1215 (2012) -- which the lower court misinterpreted -- indicates otherwise.

The federal nature of the public trust doctrine was recognized over a century ago by the Supreme Court in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892). That decision has functioned as binding federal law and has been so understood by the vast majority of states. Interpreting that decision as an expression of state law is erroneous.

As a constitutionally recognized limit on sovereignty, the public trust doctrine -- unlike a common law doctrine -- is not subject to displacement by congressional statutes. The brief cites numerous opinions of the Supreme Court that have recognized the doctrine’s applicability to the federal government, which reinforce the notion that the Constitution recognizes the public trust doctrine as a reserved power withheld from both the federal and state governments.

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