Tuesday, June 5, 2018

I ran headlong into Ohio's wacky and unsettled Public Trust Doctrine today in doing some research.

Article III, Section II of the U.S. Constitution gives the courts jurisdiction over admiralty and maritime jurisdiction, which by extension gives Congress the authority to regulate navigable waters. Article I, Section 8, Clause 3 (the "Commerce Clause") reinforces this authority, and extends it to oceans and seas (not just inland waters).

Common law (English, and that going as far back as the Roman Emperor Justinian) also held that navigable waters, tidal waters, and the submerged lands beneath them were held in a "public trust" by the Crown. These waters and lands could not be alienated, except in the public benefit. And the state could resume title to these lands if the private owner violated that trust.

Beginning with Illinois Central Railroad v. Illinois in 1892, the U.S. Supreme Court began moving public trust common law toward judicially-determined law. This also had the effect of fragmenting the Public Trust Doctrine into 50 or more distinct pieces, because the Supreme Court refused to recognize a Public Trust Doctrine at the federal level except insofar as the Constitution explicitly delineated it.

Many states have, since the early 1970s, expanded the Public Trust Doctrine to include a wide range of natural and cultural resources. Whereas the doctrine once applied only to navigable waters and submerged land, it now may also apply to public access, water rights, water quality, fish and wildlife resources, and air quality.

Ohio's Public Trust Doctrine is a freaking MESS. The state supreme court keeps refusing to interpret it, and the legislature keeps refuing to interpret it, and no one knows what's going on. Much less me...

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