The Volokh Conspiracy

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Lakefront and the Confoundments of the Public Trust Doctrine

Basic questions inherent in the public trust doctrine make it hard for the doctrine to develop in a legally principled way.


The American public trust doctrine—a kind of anti-privatization rule for certain kinds of resources—made its spectacular debut in the Illinois Central decision of 1892, as we described in our initial guest post (with thanks also to Eugene Volokh for his introduction of our series). The stakes in the case were high: the question was whether the submerged land in Lake Michigan, just east of downtown Chicago, would be given over to a rail and harbor complex, to be owned by a private railroad, or would be kept forever open to the general public. The decision was by the most prominent of tribunals—the Supreme Court of the United States. And the rhetoric of Justice Stephen J. Field's majority opinion, speaking of navigable waters and the land beneath them as belonging to the state "in trust" for the public, was stirring.

Unsurprisingly, the decision spawned a significant body of cases in Illinois and in many other states. Our new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press), allows us to probe more deeply into what kind of "trust" was created by this doctrine, when viewed as a species of trust law more generally. While we use the Chicago lakefront, or Illinois, as an extended case study, the issues explored are important wherever the public trust doctrine can be found. This second of our five posts suggests some questions inherent in the doctrine and perhaps inimical to its development.

Here is one question of obvious importance: who is the trustee? The Supreme Court did not specifically address the question in Illinois Central, except insofar as it implicitly regarded itself as the trustee. The issue soon arose explicitly in a case called People ex rel. Moloney v. Kirk (1896), where the question was whether the state could transfer submerged land to a park district, on the understanding that the park district would then sell some of the land to fund a segment of Chicago's Lake Shore Drive.

The Illinois Supreme Court held that the state legislature was the trustee of the resources impressed with the trust. The state owned the land subject to the trust, the court ruled, but the legislature was in control of the trust: "The legislature represents not only the State, which holds the title …, but the legislature also represents the public, for whose benefit the title is held …." If the legislature is the trustee, then Illinois Central and Kirk describe a trustee with great discretionary powers. The legislature as trustee can transfer trust lands to private parties, if it determines this to be consistent with the trust (Kirk). Or, it can revoke a transfer of trust lands to a private party, if it concludes that to be consistent with the trust (Illinois Central).

Another question: who has standing to assert that the trust has been violated? Here, the Illinois courts have oscillated between two analogies. First, they thought the proper analogy to be public nuisance law, which makes the principal legal officer of the state (as relevant here, the state attorney general) the proper party to represent the public in bringing an action alleging a breach of the public trust. Later, after an intense internal debate, the Illinois Supreme Court decided that the better analogy is to certain state constitutional provisions regarding misuse of public funds, which had been held to allow any taxpayer to sue.

Today, then, any Illinois taxpayer can bring an action claiming a violation of the public trust. As the Seventh Circuit held last August, in an opinion by then Seventh Circuit Judge Amy Coney Barrett, this means that Illinois permits suits to enforce the public trust without a plaintiff's having suffered injury in fact, as is required by Article III for an action in federal court.

A third question: if the attorney general or an Illinois taxpayer gets to court and asserts a violation of the public trust, what standard of review will the court apply in deciding whether the state legislature, as trustee, has breached its fiduciary duty to the public? On this question, the decisions are very difficult to reconcile. Some, like the Kirk case, seem to say that the legislature has virtually unreviewable discretion. Others have invoked a standard that sounds almost like strict scrutiny.

In a recent decision involving a public trust challenge to the construction of the Obama Presidential Center in Chicago's Jackson Park, along the lakefront some seven miles south of downtown, U.S. District Judge John Robert Blakey thought that a different standard of review applies depending on whether the proposition is to fill land under the lake, to change the use of previously filled land, or to challenge the use of public land that was never under the lake. (In rejecting a challenge to the project, Blakey concluded that the Obama library is slated to be built on land that was never under the lake; Blakey's decision was vacated on jurisdictional grounds by the Seventh Circuit decision mentioned above.)

And, finally, perhaps the most important question: what resources are covered by this public trust? What is the res of the trust? Illinois Central and most succeeding cases were reasonably clear: the trust is designed to ensure that "the people of the State . . . may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties." Hence, the trust applies to navigable waters and the land beneath them.

For the most part, the Illinois decisions have remained faithful to this understanding. The one major exception involves a decision in 1970 (Paepcke v. Public Building Commission) that concerned a proposal to build a schoolhouse in a public park created on land that had never been submerged. But the Illinois Supreme Court in that case, though viewing the park as impressed with a public trust, never explained why this should be so—and no consequences attached to the view, as the court rejected the claim that placing a school building there would violate the trust.

The theory of Illinois Central in 1892 was that the trust applies to navigable waters, and the land beneath, because these resources were conveyed to the state when it was admitted to the union on the (implicit) understanding that these resources were to be held in trust for the public. A public park on land that was never submerged can be acquired in multiple ways—by donation, purchase, or condemnation—with or without any condition that the park be held in trust for the public.

It is probably a good idea to provide some legal check on decisions by local politicians to turn parks into other uses. Perhaps such actions should require the explicit approval of the state legislature. But there is no clear theory that would allow the public trust recognized in Illinois Central to expand beyond the nexus to navigable waters, on the mere say-so of the courts—that is, no theory that would explain why the title to parks, or why only some parks, should be viewed as held in a trust of that sort.

All in all, the public trust doctrine, when viewed as a type of trust law, is afflicted with, if not imponderables, then questions not readily susceptible to principled or especially persuasive resolution. Who is the trustee? Who can sue to enforce the trust? What is the standard of review in determining whether an action breaches the trust? What is the trust res? Courts have struggled to answer these questions, leaving us with a doctrine that is most uncertain in its scope and application.

We will spend more time with the public trust doctrine, as it has developed, in subsequent posts, but we will next focus on this: Given the confounding questions presented by the public trust doctrine, how did Chicago succeed in creating and then preserving a splendid lakefront? The answer lies in part in a doctrine that we will consider in our next (third) post: the similar-sounding, but quite different, public dedication doctrine.