[From the seminal article by Joseph L. Sax, “The Public Trust Doctrine,” in the Michigan Law Review. January 1970. Volume 68, pp. 470-566.]

++++++++++++

The greatest problem in today’s world is the excessive exercise of control by the State.  Therefore, any discussion about balancing the ‘public need’ with the needs of the ‘private interest’ held by developers or ordinary citizens have become so incomprehensibly blurred.   In the times when Joseph Sax wrote his essential article on the Public Trust Doctrine, the United States of America was dominated by an individualist ideology that was as imperturbable as the walls of a great fortress.  I was born in October of that very same year that his article was published, born into a world of lush trees and grey rocky outcroppings along the shorelines of the islands of New Providence and Great Abaco stretching as far as the eye could see!

Imagine the vast plains of the great continents that lay untouched in the northerly world of Joseph Sax, the great acreages of land that he saw being swallowed up by development.  Indeed, this is what must have driven him to research in such great detail.  All around the United States wealth resulted in land development but some communities were better than others in holding up a cautionary hand and saying to the State, “pause here, please.”  These communities were probably comprised of relatively educated people who enjoyed a great balance between nature, modernity and wealth.  They perhaps wanted the best of both worlds believing that it would be ideal to streamline the cities with concrete, metal and technology while leaving the towns and countryside more pristine, gently handled, as untouched as possible without losing the advantages of modern amenities.

What would Joseph Sax have had to say to Ayn Rand?  Probably very little.  Perhaps he would have been polite and thought, “best she keeps to city life which is so very lush and luxurious compared to Soviet Russia—frigid, barren, wasteland!”  Sax and Rand straddled the wide girth of modern America thinking that they had not yet become greedy.  Wealthy and successful it was, but greedy, no.  It was a land of hard-working, up-by-your-bootstraps people who exercised generosity to the less fortunate and were known to rebuild whole communities for developing and third world countries around the world.  Sax watched a disappearing environment while Rand was anxious to protect the individualistic outlook that had made America great from its very beginnings (minus a few troubling institutions such as genocide and slavery).

I believe 1970’s America had a good-sized middle class, fairly well-educated but largely liberalized and falling away from stringent Christian values in the cities while still conservative in the town culture.  However, the power of media had begun to shape fashion, music and outlook in waves that were coming faster and faster onshore. The undergirding foundation of 1970 American ideology was drastically changing.  You could talk about what you wanted or didn’t want, but you couldn’t talk about State interference with a straight face.  The fact is that back then, the State held the reigns of fiscal control in American life.   Budgets for government representation had grown, and numbers of state employees continued to burgeon.

The status quo of American life became a culture of law suits and taking matters before the court.  As legal opinions proliferated through the States, so did State power to make more laws and to enact them.  Enforcing them required more and more police power, therefore establishing increasing power to the Executive, or as some might say, the Figurehead.  And so it is the paradox of Ayn Rand’s doctrine that she sat in favor before the very elite that continued to swell on the crest of the great wave called State Power.   She preached the doctrine of the Individualist but the only individual rising in power in her America was the State.  This was the crushing truth of her period.

Not only did the power of the executive become great in Rand’s America, but so did the power of the judiciary whose ranks and its subsequent supporting bodies swelled.   All of this required further personnel and most certainly an increasing budget whose requirements gave the State more incentive to tax its citizens.  It goes without saying that the legislature grew in the States as population growth and wealth perpetuated more and more needs which required the State’s maintenance via the public purse.  Go back in time to the 1920s and 1930s and you will venture to the towns and cities where many services were performed pro bono by the citizens (who also rose in power and influence on a private level).  However, by the end of the Second World War Sax and Rand confronted a liberalized America where the needs of its society were complex minutiae being handled by the many-arms of the State machinery.  In all fairness to Rand and her successor, Leonard Peikhoff, they attempted to warn their readers that the State machinery was leaning heavily towards a new sort of fascism. It is the powerful influence of Rand and Peikhoff that has made Nazism a discussion of every pundit having overdone on paltry issues while omitted on issues where it is needed most. In other words, the pundits band the Nazi discussion mostly in the absence of an opposing voice.  As the true face of Nazism is most dangerous where there is an undefended minority among us, no one has had the courage to address the blank Face of the State.

In Nazi Germany, the laws were painstakingly carved in stone over at least a twelve-year period, an exacting science of pushing out the Jews, the intellectuals and even the Gypsies.  The State worked as a machine to drill every one into line without crushing big business.  Ring any bells? Joseph Sax heard the bell toll for a way of life that was fast-disappearing.  He attempted to demonstrate that case after case the story line was the same:  the absence of agreement underlying the use of land held in the public interest.

Eastern view from the top of the Hotel Montague (now demolished).

Let’s take an example in modern New Providence that would be just perfect:  the public park at Montague, its prime value rest on the eastern tip of a bulging city just opposite one of the greatest pleasure islands in the world.   Fort Montague sits like a craggy warrior existing from a time when Nassau people would have given their inside guts just to have a cold soda on a hot day, so underdeveloped and stark was life then!  As a child, we would drive to the Fort, climb out of the car and run up to climb its rocky, cool mildewed walls and stare down eastward at the mounds of seaweed clinging to the sand at the abutment where seagulls screamed and squawked like a scene from the movie “The Birds.”   It was unthinkable that we should swim there (just yards from where the men cleaned the fish and conch and “threw the guts back into the water,” as my aunt put it).  We watched as the poor families swam and frolicked at Montague Beach, probably having no car to drive to a better beach or perhaps they never tasted the sweet heaven of a white, clean beach in the Western District.  I recall watching the people for hours and wondering what could possess someone to take their leg out of the car and place it in the water at Montague.  Yes, baptisms were done there on Easter Sundays or public holidays and you could tolerate that thought because they were just dipped and would not stay to swim.  The beach was clammy clay and the stench from the fish and conch vendors unthinkable.  I would hear other people say that when Hotel Montague was there, the beach was better before the dredging. At that time Hotel Montague had not yet been torn down and it looked upon Montague with tantalizing memories of Errol Flynn and the swashbuckling days of Nassau. Before it was torn down, we went up there and took pictures which I still hold to this day.

The author and her sister, Joy Sweeting at the top of the Hotel Montague (now demolished).

Now the Montague Park has been adopted by benefactors.  Only a year ago, the restaurant that had been there all of my life burned down, some say not by accident.  The men still sit out there to play dominoes, the seagulls still squawk like nobody’s business, and the poor families still bring their children to swim not because they don’t have a car or because they don’t know the sweet taste of a blisteringly white beach out west, but because they can’t afford the gas or can’t find a spot on the crowded beaches elsewhere.   The park has no public bathrooms and the rats run out like buck-teethed sentries, aggressive enough to approach the children as they climb the big tree in the center of the park.  People continue to drop garbage while some of us pick it up.  There are no wardens in Nassau so drug loonies drift in and out of the park staring glazy-eyed at the children or forage for dried coconuts that have fallen from the trees.  The park will sit there in this state until the government does something about it in conjunction with the body proper which represents the benefactors.

Friends and siblings exploring the Hotel Montague (now demolished)

When I was a child, there was space for us all.  We didn’t have to cramp up here and there because there were countless places to swim along the coastline of New Providence.  Fort Montague and its corresponding park and beach sites represent a reminder of how the vast wealth of a country can be siphoned off for so many things but can easily not reach those who need it most.   There is space at Montague for public facilities.  There is room in the budget for wardens to ensure that people don’t leave their garbage and that lunatics leave their pitbulls home, away from mothers with children. To ensure that families can take their children to the bathroom, to ensure that something like the restaurant that had been there for at least forty years is remembered in the upcoming design and to remember the poor and disenfranchised among us at a time when the disparity of wealth seems to be most pronounced.  There is room in the government budget to ensure that the memory of the people is protected and sacred in what is considered for the years ahead.

++++++++++++

I brought up the budget for a reason.  It hearkens back to my first sentence in this article:  The greatest problem today in the world is that there is too much State control.   The simplest thing that should be done is often at an impasse because the people making the decisions sit in the labyrinth of the government system:  bureaucracy enforced by authority chiseled into the psyche of the collective over a long period of time.  That is the meaning of government and bureaucracy today in my humble opinion.  It was certainly not the definition of government in the 1920’s and 1930’s.  You may ask why I keep going back 100 years.  That is a good question and a valid one.  I go back 100 years because the power brokers of the world today are riding on the back of a horse whose saddle, reins, sturrups and bit are crafted from economic and democratic ideals of a 100 years worth and more.

When we beg the question of what role is to be played by representatives of the State when handling the changing needs of the public, this is where government workers tend to get on the defensive.  On one hand, the civil servant is working in an already-bureaucratic pigeonhole within the government system.  A answers to B answers to C who answers to Committee D or Tribunal E if the public’s ire is aroused.  A answers to B answers to C who answers to Politician D who is cutting a deal with Celebrity or Developer E on some great new thing that’s going to fill in some much-needed government revenue to build School F.  This is the labyrinth and everyone knows about it.  I wish to make five major points here that the Joseph Sax article enriches so immensely and then to close by introducing the reader to a wonderful article written in 1974 discussing another angle of the protection of precious land and environs for the greater good.

• PUBLIC LAND USE IS OFTEN NOT STAGNANT – This is actually an understatement.  The greatest challenge of government agencies is to consider when a resource use cries out for reconsideration:-

“As an example of the latter view, San Francisco Bay might be said to have a trust imposed upon it so that it may be used for only water-related commercial or amenity uses.  A dock or marina might be an appropriate use, but it would be inappropriate to fill the bay for trash disposal or for a housing project.”

• TACTICS ARE OFTEN USED TO SLIP DEVELOPMENTS THROUGH.

The arms of government move notoriously slow. Sax accumulated data on a number of devices that ran through the cases. It appeared that efforts had not been made to alert the local community to a proposed change of use of resource.

“There are a variety of other ways in which agencies minimize public participation in their deliberations.  For example, the duty to hold a public hearing may technically be satisfied by holding a hearing which is ‘announced’ to the public by posting a notice on an obscure bulletin board.”[2]

• THERE IS DIFFICULTY IN THE DUAL ROLE OF GOVERNMENT AS PUBLIC TRUSTEE DISPENSING, OR PUBLIC PROTECTOR OF, RESOURCES IN CASES OF CHANGING USE.

“These traditional cases suggest the extremes of the legal constraints upon the states: no grant may be made to a private party if that grant is of such amplitude that the state will effectively have given up its authority to govern, but a grant is not illegal solely because it diminishes to some degree the quantum of traditional public uses.”[3]

• PUBLIC LAND RESOURCES CAN BE SOLD OFF BY CAMOUFLAGED LEGAL JARGON WHEN PRIVATE INTERESTS & TITLE ARE TO BENEFIT.

The most important case given by Sax is that of Hunting Creek in Alexandria, Virginia circa 1964.  Certain parties owned land near the creek and in order to deflect public attention from the parties’ intention to purchase the public interest in order to fill in the creek, someone in government was persuaded to package the sale in Bill form, selling the ‘riparian’ rights of the creek (as though it was only just land near the creek); in this Bill form, it was attempted to allow certain public officials to ‘convey’ all the Commonwealth interests of the public, and the Bill initially slipped through in language as though a tiresome title defect was being mitigated. This case bears scrutiny by those interested in the public trust doctrine.

Sax takes particular care to present the obstacles to public attention on the matter:-

• Bill was passed unanimously in the Virginia House on a day when there were 100 bills considered and zipped through the Senate on a day when 59 other bills came up.[4]
• Bill’s language was so restrictive that “even the most alert legislator would probably not have realized the extent of the private benefit that the legislature was bestowing.”[5]
• Bill does not purport to deal with a public benefit at all “and appears as if it is nothing more than authority for a quitclaim conveyance to clear up a technically troublesome title problem…”[6]
• Bill is hardly dealing in good faith with query over private vs. public ownership because such complex legal issue would have been passed up higher to the Attorney General’s Office.[7]

Sax goes quite deep into this maze of where the legal responsibility falls.  He blames no one in particular, rather presents the labyrinth of bureaucracy in all its fullness, and the challenges faced in utilizing the breadth of the public trust doctrine in the interest of the wider community who is set to be most-often disadvantaged by certain types of development.  Certainly, few would dispute that the notion of filling in a creek for a landfill is not the best use of aquatic resources!

• THERE IS A PUBLIC PERCEPTION THAT PUBLIC TRUST CASES FALL INTO TORT OF PUBLIC NUISANCE LAW BUT CASES CAN FAIL BEFORE THE COURT IF THERE IS CARELESS PREPARATION.

“Public nuisance law is the only likely doctrinal competitor. That approach, however, is encrusted with the rule that permits lawsuits to be initiated only by the state attorney general, and not by private citizens.  It also has an unfortunate historical association with abatement of brothels, gambling dens, and similar institutions, and the case law is therefore not easily transferable to natural resource problems.[8]

There is a beautiful and deeply moving article by Joel Franklin Brenner published in The Journal of Legal Studies in June 1974 and entitled Nuisance Law and the Industrial Revolution.  I was studying an article on tort (or civil action through the courts where there is blame or ‘culpability’).  This man’s carefully extracted research of the period was flawless.  Furthermore, he credited Dr. William Letwin and Professor W.R. Cornish of the London School of Economics for their “advice, learning and good sense.”[9]  He also did not hoard the glory where the unlayering of nineteenth century common law and unearthing of relevant statutes were undertaken by a female contemporary:-

I am also deeply indebted to Miss Betty R. Masters, Deputy Keeper of the Records for the Corporation of London for her kindness in researching on my behalf both the statutes relating to nuisances within the City of London and the records of two City magistrates courts.[10]

When land is being used for a public purpose and a private entity is to benefit from that land, the public trust doctrine kicks in.  When public land is encroached upon by private corporations or individuals whose actions cause grave environmental damage to the air, the water, the earth and the residents, the State is obliged to utilize the law of Public Nuisance.  However, it is a very complex legal circus in both cases unless State agencies are acting in the public interest or unless private aggrieved individuals can get decent legal representation to approach the State agencies where the issue of standing is appropriate.

In today’s world, very little legal doctrine is upheld without the State or its agencies.  In the case of the public trust doctrine, legislators must be bound by the noble idea that they read proposed development through the lens of protecting land and waters and resources generally held in the public interest.  When it comes to nuisance law in the interest of these public resources, the legal scope is quite confined by what laws have been written to protect the resources.  Mostly, an action has to be brought on behalf of private persons by the Office of the Attorney General.  And where government agencies have actually created damage to the environment through public works, too often government has unwittingly protected them either in too-broad statutory protections or omissions.  As the Biblical adage goes, “a house divided against itself cannot stand.”  So overall, government’s hands are tied against itself unless it upholds the doctrine of the separation of powers.  The challenges to this latter doctrine are manifold:  the cautious judiciary, the vote-happy legislature and the development-needy executive.

---

Sax, Joseph L., The Public Trust Doctrine,” in the Michigan Law Review. January 1970. Volume 68, pp. 470-566 at page 477.

[2] Ibid, footnote 76 on page 497.

[3] Ibid, page 488.

[4] Ibid., 506.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Ibid., quoting from Footnote No. 45, Sax.

[9] Brenner, Joel F., “Nuisance Law and the Industrial Revolution,” The Journal of Legal Studies Vol. 3., No. 2, June 1974, pp. 403-433 at 403.

[10]Ibid.  Footnote 49 at page 421.

	Melissa K. Sweeting – Perecentie, is a student of the University of London and has a long history with the Church. She has a passion for Creative Art, Social Justice, and business. She is the mother of two daughters, Hannah and Omega.
For further information on all articles provided by Melissa Sweeting – Percentie, you may contact her via email at mellaw1970@hotmail.com or visit www.lexjustis.com

Share on Facebook