The Public Trust Doctrine: A Tragedy of the Common Law

The Public Trust Doctrine: A Tragedy of Common Law OYSTER WARS AND THE PUBLIC TRUST: PROPERTY, LAW, AND ECOLOGY IN NEW JERSEY HISTORY. By Bonnie J. McCay.^ Tucson: The University of Arizona Press, 1998. Pp. xxxi, 246. $45.00.^^ I. Introduction During last thirty years, few issues in natural resources law have received scholarly attention than public trust doctrine, doctrine that a state legislature has a trust obligation to public at large which prohibits it from permanently privatizing certain natural resources.' The reasons for this interest are not particularly mysterious. For reformminded scholars disenchanted with historical eagerness of state legislatures to exploit and consume natural resources, public trust doctrine symbolizes something of a legal holy grail: an extra-constitutional, countermajoritarian check on natural resource allocation decisions of misguided legislative majorities.2 On another side of debate-the side on which I find myself-the public trust doctrine is viewed as akin to Sirens' song of Greek mythology: promise of reversing previous resource misallocations is alluring but price of that satisfaction is too steep. Application of doctrine can result not only in a dangerous usurpation of legislative authority3 but also in a potential violation of Fifth and Fourteenth Amendments when a prior grant of trust resources is revoked or modified without payment of just compensation.4 Unsurprisingly, competing perceptions of promise or peril of public trust doctrine have spawned a wide variety of law review articles.5 Dr. Bonnie McCay's Oyster Wars and Public Trust addresses an area neglected in legal literature: key role that nineteenth-century New Jersey oyster disputes played in development of public trust doctrine. To those unfamiliar with origins of doctrine, this focus may seem odd. Why New Jersey? Why oysters? In fact, focus is quite logical and creates some of book's value. It is logical because two seminal decisions that ultimately gave birth to modern public trust doctrine-Arnold v. Mundy6 and Martin v. Waddell's Lessee7-both grew out of nineteenth-century New Jersey oyster disputes. The focus on oyster industry adds value because public access to oyster resource presents an ideal case study for application of public trust principles. The core proposition of public trust doctrine is that state must hold land under navigable water (originally defined as those waters which ebbed and flowed with tide8) in trust for people, so that people may use those lands for purposes of navigation, commerce, and fishery.9 Oysters, which are physically tied to land under navigable water,10 and are part of ocean fishery, are thus prototypical public trust resource. Yet because oysters are attached to land, just like timber and minerals, they are also ideal candidates for privatization. Thus, from its beginnings, oyster industry was a flash point for public trust disputes. What early oyster disputes reveal about origins and evolution of public trust doctrine will be focus of this review. The review discusses two contributions that Oyster Wars makes to public trust literature. The first is a function of McCay's approach to tracing development of public trust doctrine. Rather than focusing solely on major court cases for both their content and their contributions to an evolving common law,11 McCay also takes what she terms a more anthropological approach: namely, she explores the events, issues, and people behind cases and decisions and how they might be connected with one another.12 This contextualized exploration of foundational cases of public trust doctrine is valuable because it provides new insights into those cases. The second contribution of Oyster Wars is simply its focus on oyster industry. …