Boston College Environmental Affairs Law Review Volume 44 | Issue 1 Article 2 4-6-2017 The Public rT ust as an Antimonopoly Doctrine Michael C. Blumm Lewis & Clark Law School, [email protected] Aurora Paulsen Moses Vermont Law School Follow this and additional works at: http://lawdigitalcommons.bc.edu/ealr Part of the Antitrust and Trade Regulation Commons, Energy and Utilities Law Commons, Environmental Law Commons, Land Use Law Commons, Natural Resources Law Commons, Oil, Gas, and Mineral Law Commons, Property Law and Real Estate Commons, and the Water Law Commons Recommended Citation Michael C. Blumm & Aurora P. Moses, The Public Trust as an Antimonopoly Doctrine, 44 B.C. Envtl. Aff. L. Rev. 1 (2017), http://lawdigitalcommons.bc.edu/ealr/vol44/iss1/2 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Environmental Affairs Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. THE PUBLIC TRUST AS AN ANTIMONOPOLY DOCTRINE MICHAEL C. BLUMM* AURORA PAULSEN MOSES** INTRODUCTION ................................................................................................................................ 2 I. THE FOUNDATION OF THE AMERICAN PUBLIC TRUST DOCTRINE: ANTIMONOPOLIZATION OF PUBLIC RESOURCES ......................................................................................................................... 6 A. Prohibiting Landowner Monopolization of Public Water Resources ..................................... 8 1. Preventing Monopolization of Wildlife Resources in Tidal Waters .................................. 9 2. Extending Antimonopoly Protection to Inland Waters .................................................... 14 B. Restraining Privatization of Public Trust Resources............................................................ 15 1. Restraining Privatization of Water Resources ................................................................. 16 2. Restraining Privatization of Wildlife ............................................................................... 18 II. THE EVOLUTION OF THE PUBLIC TRUST: EXPANDING ANTIMONOPOLY PROTECTION ............ 19 A. Protecting Public Resource Uses Beyond Commerce, Navigation, and Fishing ................. 21 1. Recreation........................................................................................................................ 22 2. Ecological Preservation ................................................................................................... 25 B. Expanding Public Trust Resources ...................................................................................... 31 1. Non-Navigable-in-Fact Waters ........................................................................................ 32 2. Beaches ........................................................................................................................... 35 3. Parks ................................................................................................................................ 37 4. Wildlife ........................................................................................................................... 39 5. The Atmosphere .............................................................................................................. 41 C. Preventing Privatization of Public Trust Resources ............................................................ 43 1. Restraining Alienation of the Beds of Navigable Waters ................................................ 43 2. Restraints on Alienation in State Constitutions ............................................................... 48 CONCLUSION ................................................................................................................................. 52 POSTSCRIPT ................................................................................................................................... 53 Abstract: The public trust doctrine originated—and has persisted in American law—as antimonopoly protection. From the time of its recognition by American courts in the early nineteenth century, the doctrine has protected the public against private monopolization of natural resources, beginning with tidal waters and wild animals. Ensuing public trust case law has extended the scope of trust © 2017, Michael C. Blumm & Aurora Paulsen Moses. All rights reserved. * Jeffrey Bain Faculty Scholar & Professor of Law, Lewis & Clark Law School. ** Clinical Assistant Professor of Law, Food & Agriculture Clinic, Center for Agriculture & Food Systems, Vermont Law School. 1 2 Environmental Affairs [Vol. 44:1 protection to other important natural resources, including non-tidal and non- navigable waters, and land-based resources like parks. Courts are now consider- ing the trust doctrine’s application to the atmosphere. Although there is a con- siderable body of legal scholarship on the public trust, the doctrine’s antimo- nopoly core has not been explored. In this Article, we remedy that oversight by examining the public trust’s justification as an antimonopoly sentiment. Anti- monopoly policy is at least as old in American law as the public trust and cer- tainly more politically prominent. Viewing the public trust through the lens of antimonopoly helps to explain the history and evolution of this doctrine and its overriding goal of preventing irreversible commitments of natural resources to private monopolization. INTRODUCTION For nearly two hundred years, the public trust doctrine (“PTD”) has ensured that Americans have access to select natural resources, protecting those resources from privatization.1 At its core, the PTD prohibits sover- eigns from alienating these natural resources2 and requires sovereign pro- tection of trust resources for future public use and enjoyment.3 As this Arti- cle explains, antimonopoly is the essence of the PTD, preventing privatiza- tion of certain resources used by the public, such as tidal waters and wild- life. Without this limit on alienation many valuable natural resources would, by now, be privately owned and thus inaccessible to the public. The roots of the PTD lie in seventeenth-century English political thought, particularly the writings of John Locke. According to Locke, a per- son should only be able to acquire property that he could productively use, “whatever is beyond this, is more than his share, and belongs to others.”4 1 See Arnold v. Mundy, 6 N.J.L. 1, 76–77 (N.J. 1821) (rejecting an attempted landowner monopolization of tidal oyster beds). 2 See id. (protecting public access to tidal oyster beds); Joseph L. Sax, The Public Trust Doc- trine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 471, 477 (1970) (stating that public trust property “must not only be used for a public purpose, but it must be held available for use by the general public”). 3 See Michael C. Blumm & Aurora Paulsen, The Public Trust in Wildlife, 2013 UTAH L. REV. 1437, 1466 (asserting that “preservation of access to wildlife lies at the heart of the American public trust doctrine”); Michael C. Blumm & Lynn S. Schaffer, The Federal Public Trust Doc- trine: Misinterpreting Justice Kennedy and Illinois Central Railroad, 45 ENVTL. L. 399, 419 (2015) (asserting “a public trust claim inquires as to whether the sovereign is protecting trust as- sets sufficiently to safeguard the interest of present and future beneficiaries”). 4 JOHN LOCKE, SECOND TREATISE OF GOVERNMENT 14 (1690). Locke posited: Nature did well in setting limits to private property through limits to how much men can work and limits to how much they need. No man’s labour could tame or appro- priate all the land; no man’s enjoyment could consume more than a small part; so that it was impossible for any man in this way to infringe on the right of another, or acquire property to the disadvantage of his neighbor . Id. 2017] The Public Trust as an Antimonopoly Doctrine 3 This Lockean sentiment migrated to American political thought, most prom- inently through Thomas Jefferson’s advocacy of a republic of small land- holders and widespread distribution of resources.5 Preserving public rights to access natural resources, including navigable waters, served Jacksonian America’s aversion to concentrated wealth and special privileges for elites.6 Later in the nineteenth century, monopolization became a widespread public concern as corporations amassed economic and political power and threat- ened to assert exclusive use of natural resources.7 The rise of concentrated industrial power in the years following the Civil War led to reform move- ments like state efforts to regulate railroads and the federal enactment of the Interstate Commerce Commission and Sherman Antitrust Acts, which sought to protect the public from the adverse effects of monopolization.8 Promoting widespread public access to navigable waters—the essential arteries of commerce—developed as part of a larger effort in nineteenth- century America to resist monopoly power.9 Antimonopoly sentiment pro- duced limits on land acquisition in federal homestead and preemption laws10 and was at the center of the founding of western water law, which rejected common law riparian water rights because they gave monopoly rights to 5 See PAUL W. GATES, HISTORY OF PUBLIC LAND LAW DEVELOPMENT 62 (1968) (“The small landholders are the most precious part