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The Origins of the American Public Trust Doctrine

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The Origins of the American Public Trust Doctrine The Originsof the American Public Trust Doctrine: WhatReally Happened in Illinois Central JosephD. Kearney& Thomas W Merrillt Introduction..................................... 800 I. The StandardIllinois Central Narrative .805 II. Settingthe Stage ..811 A. The Lay ofthe Land .811 B. LegalUncertainty over Property Rights in SubmergedLands ....826 C. Implicationsfor the Lakefront .836 III. 1867:The Lakefrontin Play ..838 IV. 1868:Debating the Future of the Lakefront . .842 V. 1869:Chicago and the Illinois Central Go to Springfield.. 853 A. A Noteon Newspapersand State Legislatures in the Mid-NineteenthCentury .853 B. TheLake FrontAct of 1869 .860 C. TheMotives of the Illinois Central .877 D. The PublicInterest .881 E. The Questionof Corruption .887 VI. Afterthe Act ....................................... 894 A. 1869-1870:North Lake Park..................................... 895 B. 1870-1872:The OuterHarbor ..................................... 900 C. 1873:Repeal ..................................... 905 VII. TheLake FrontCase ..................................... 912 VIII. WhatIllinois Central Really Tells Us aboutthe PublicTrust Doctrine .. ...................................924 Conclusion..................................... .. 930 t Kearneyis Dean and Professorof Law,Marquette University Law School.Merrill is CharlesKeller Beekman Professor of Law,Columbia Law School.The authorswould like to thankRichard A. Epstein,Robert A. Ferguson,Richard H. Helmholz,John H. Langbein,Henry E. Smith,James B. Speta,and John Fabian Witt for helpful comments and suggestions on earlier drafts,and to thankthe participants in facultyworkshops at theUniversity of Chicago,Colum- bia,and Yale law schoolsfor stimulating feedback. The authorsare also gratefulto a numberof librariansand archivistsfor their assistance, including Robert E. Baileyat theIllinois State Ar- chives,Steven M. Barkanat theUniversity of Wisconsin School of Law,Christopher Simoni at NorthwesternUniversity School of Law, Julia A. Wentzat LoyolaUniversity School of Law, and to thereference staff at theChicago Historical Society, Marquette University Law School,the NewberryLibrary, and theUniversity of ChicagoLaw School.Daniel L. Abelson,Andrew B. Armstrong,Cynthia J. Cole, David M. Marquez,Jeremy R. McKenzie,Eric D. Meyer,Christo- pherS. Norborg,Annie L. Owens,Megan E. Pullem,and Jeremy J.Westlake provided invaluable helpas researchassistants. 799 This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 800 TheUniversity ofChicago Law Review [71:799 INTRODUCTION The publictrust doctrine has alwaysbeen controversial. The gen- eral rulein Americanlaw favorsownership of naturalresources as privateproperty. The publictrust doctrine, a jarring exception of un- certaindimensions, posits that some resources are subject to a perpet- ual trustthat forecloses private exclusion rights. For environmentalists and preservationistswho viewprivate ownership as a sourceof the degradationof our naturaland historicalresources, the public trust doctrineholds out thehope of salvationthrough what amounts to a judiciallyenforced inalienability rule that locks resources into public ownership.'For those who view private property as thebulwark of the freeenterprise system and constitutional liberty, the doctrine looms as a vaguethreat. Althoughproponents and detractorsof thepublic trust doctrine disputemuch, all agreethat the leading case establishingthe doctrine in theUnited States-the "lodestar" of themodem public trust doc- trine3-isthe United States Supreme Court's 1892 decision in Illinois CentralRailroad Companyv Illinois.4The decisionarose out of a dis- puteover control of the bed ofLake Michiganeast of downtown Chi- cago.Four contestants wrangled over this resource: the Illinois Central RailroadCompany, the City of Chicago,the State of Illinois,and the UnitedStates government. Each had a plausiblelegal theory support- ingits claims,and each had reasonto fearthe consequences should anothergain supremacyover developmentof the lakefront.Their struggle,beginning in thelate 1860s,resulted in theenactment of the Lake FrontAct bythe Illinois legislature in 1869,which awarded the IllinoisCentral both a portionof thelakeshore for a newdepot and overone thousandacres of submerged land for the development of an 1 See, forexample, Charles F.Wilkinson, The Public TrustDoctrine in Public Land Law, 14 UC Davis L Rev 269, 299 (1980) (creditingthe public trustdoctrine with preserving public resources). 2 See, forexample, Lloyd R. Cohen, The Public TrustDoctrine: An Economic Perspective, 29 Cal W L Rev 239,275 (1992) (arguingthat the publictrust doctrine undermines the security of propertyrights); James L. Huffman,A Fish Out of Water:The Public TrustDoctrine in a Con- stitutionalDemocracy, 19 EnvirL 527,565 (1989) (statingthat "the doctrineoften permits non- democraticcourts to overrulethe decisions of theoreticallydemocratic legislatures"). 3 JosephL. Sax, The Public TrustDoctrine in NaturalResource Law: EffectiveJudicial In- tervention,68 Mich L Rev 471,489 (1970). 4 146 US 387 (1892). For examplesof testamentsto theimportance of Illinois Central, see Daniel R. Coquillette,Mosses froman Old Manse: AnotherLook at Some HistoricProperty Cases about the Environment,64 Cornell L Rev 761, 764, 810 (1979) (calling the case one of "threefamous cases on Anglo-Americanproperty doctrine" and notingthat "[tihe debate over the case has raged fornearly ninety years"); Carol Rose, The Comedyof theCommons: Custom, Commerce,and InherentlyPublic Property,53 U Chi L Rev 711,737 (1986) (describingIllinois Centralas the"most famous assertion of thepublic trust theory"); Gerald Torres,Seventh Annual Lloyd K GarrisonLecture on EnvironmentalLaw- Who Owns theSky?, 19 Pace EnvirL Rev 515,520 (2002) (notingthat the decisionis "one of [theSupreme Court's] most famous cases"). This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 801 outerharbor for Chicago. Just four years later, however, during the populistagitation known as theGranger Movement, the grant was re- pealed.For this and otherreasons the legal dispute continued, leading to thelitigation that eventually worked its way to theSupreme Court in 1892. The IllinoisCentral decision, as an exercisein disputeresolution, providedsomething for everyone. The Courtheld that the State of Il- linois,not the federalgovernment or the ownersof riparianlands abuttingthe lake, was giventitle to thebed ofLake Michiganwhen Il- linoiswas admittedto theUnion in 1818.5It confirmedthat the City of Chicagohad titleto thestrip of landknown as Lake Park(today ex- pandedand renamedGrant Park) abuttingthe lake in the centerof the City.6It acknowledgedthat the Illinois Central Railroad was the riparianowner north and southof Lake Park,and intimatedthat the railroad'sexisting landfills and improvementsin these areas as wellas itsright of way though Lake Parkwould be allowedto remainundis- turbed.7And it reaffirmedthat the federal government had complete controlover navigationin the harbor,to whichthe interestsof all otherproperty rights in thelakebed were subordinated.8 The mostdifficult issue -and the one whoseresolution was to have consequencesextending far beyond the specificcontroversy- concernedthe IllinoisCentral's claim that the 1869 Lake FrontAct had conveyedvested rights of propertywhich the legislaturewas powerlessto repealin 1873.This was a forcefulclaim in thenineteenth century,as the Courthad held in Fletcherv Peck9that the Contracts Clause protectedagainst repeal of a completedconveyance of prop- ertyby a stategovernment.10 Writing for a bare majorityof fourJus- ticesin Illinois Central(only seven participated in thedecision), Jus- tice StephenField deflectedthis claim by holdingthat the Statehad no powerto alienatethe land in the firstplace."1 Although the State held titleto the bed of the lake,Justice Field explained,this title - giventhe surpassing public interest in preservingthe lake fornaviga- tion-was held in trustfor the people.12The State had violatedthis Illinois Central,146 US at 434-37. 6 Id at 462-63. 7 Id at 445-48. 8 Id at 463. 9 10 US (6 Cranch)87 (1810). 10 Id at 137.See also DouglasL. Grant,Underpinnings of the Public TrustDoctrine: Les- sonsfrom Illinois Central Railroad, 33 ArizSt L J849 (2001)(noting the importance of Fletcher to therailroad's argument and interpreting the Court's opinion as a responseto that argument). 11 IllinoisCentral, 146 US at 453 ("A grantof all thelands under the navigable waters of a Statehas never been adjudged to be withinthe legislative power; and any attempted grant of the kindwould be held,if not absolutely void on itsface, as subjectto revocation."). 12 Id at 452 (statingthat the State's "title to thelands under the navigable waters of Lake Michigan,within its limits," is "differentincharacter" from other types of titles, for " [i]tis a title This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 802 TheUniversity ofChicago Law Review [71:799 trustwhen it conveyedownership of the lakebedto therailroad in 1869.Justice Field wrote as follows: The Statecan no moreabdicate its trust over property in which thewhole people are interested,like navigable waters and soils underthem, so as to leave thementirely under the use and con- trolof private parties,... than it can abdicateits police powers
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