The public trust doctrine, Parens patriae, and the attorney general as the guardian of the states's natural resources

Duke Environmental Law and Policy Forum

Volumn 16, Issue 1, 2005, Pages

  Kanner, Allan ^a,b,c  

^a Allan Kanner and Associates   (United States)

^b DUKE UNIVERSITY   (United States)

^c TULANE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL PROTECTION; NATURAL RESOURCE; STATE ROLE;

EID: 33745241102     PISSN: 10643958     EISSN: 10643958     Source Type: Journal    
DOI: None     Document Type: Article

References (475)

1. See Allan Kanner, Toxic Tort Litigation in a Regulatory World, 41 WASHBURN L.J. 535 (2002);
2. Allan Kanner, Rethinking Superfund, 20 NAT'L ASS'N ENVTL. PROFLS NEWS 19 (1995).
3. See infra Part III.
4. See infra Part IV.
5. See WILLIAM H. RODGERS, HORNBOOK ON ENVIRONMENTAL LAW 176 (1977 & Supp. 1984) (stating that the public trust doctrine can be invoked offensively by the government to collect damages to trust property).
6. Id. at 175.
7. EDWARD H.P. BRANS, LIABILITY FOR DAMAGE TO PUBLIC NATURAL RESOURCES 52-53 (2001).
8. See id. at 53
9. (citingState v. Dickinson Cheese Co., 200 N.W.2d 59 (N.D. 1972);
10. Commonwealth v. Agway Inc., 232 A.2d 69 (Pa. Super. Ct. 1967)). In both cases, state claims for the loss of fish failed because of the state's lack of property interest in the fish.
11. Carter H. Strickland Jr., The Scope of Authority of Natural Resource Trustees 20 COLUM. J. ENVTL. L. 301, 318 (1995).
12. Seegenerally Ailan Kanner & Tibor Nagy, The Use of Contingent Fees in Natural Resource Damage and Other Parens Patriae Cases, 19 BNA TOXICS L. REP. 745 (2004).
13. CTR. ON BUDGET & POLICY PRIORITIES, A BRIEF OVERVIEW OF STATE FISCAL CONDITIONS AND THE EFFECTS OF FEDERAL POLICIES ON STATE UDGETS 1 (2004), available at http://www.cbpp.org/10-22-03sfp4.pdf.
14. Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9675 (2000).
15. See, e.g., Kanner, Rethinking Superfund, supra note 1, at 19.
16. Robert W. McGee, Superfund. It's Time for Repeal After a Decade of Failure, 12 UCLA J. ENVTL. L. & POL'Y 165, 170 (1993) ("Much of the Superfund budget is being consumed by repetitive feasibility studies, administrative costs, and litigation rather than actual cleanup expenditures.").
17. See id. at 172-75. The joint and several liability approach to Superfund cases has led to an explosion in litigation in which the EPA has pursued big companies with deep pockets while ignoring the less wealthy waste generators, who are often the most culpable for the problems.
18. Id. at 175.
19. STAFF OF S. COMM. ON ENVTL. & PUB. WORKS, 97TH CONG. REPORT ON CERCLA LEGAL REMEDIES 1, (Comm. Print 1982). An exception was made to liberalize state discovery rules which determine the trigger for running of statute of limitations.
20. See Allan Kanner & Eunice Trevor, Federal Expansion of the State Statute of Limitations in Hazardous Materials Cases, 29 THE BARRISTER 34 (1988).
21. See McGee, supra note 13, at 168-70.
22. Michael Weisskopf, Administrative Costs Drain 'Superfund,' Few Toxic Waste Sites Actually Cleaned Up, WASH. POST, June 19, 1991, at A1.
23. It can be said that site remediation was nevertheless costly to the responsible businesses. For the most part, nothing has been spent on natural resource damages.
24. See McGee, supra note 13, at 169.
25. See James Bovard, The Real Superfund Scandal, 89 CATO INST. POL'Y ANALYSIS 13 (1987).
26. Id.
27. See Weisskopf, supra note 18.
28. See, e.g., Darren K. Cottriel, The Right to Hunt in the Twenty-First Century: Can the Public Trust Doctrine Save an American Tradition?, 27 PAC. L.J. 1235, 1261 (1996).
29. There might be an exception relating to some transaction costs, such as the costs of suit.
30. Distinctly, and beyond the scope of this paper, a state may also bring an action in its proprietary capacity to recover damages to its property. See, e.g., Submerged Lands Act of 1953, 43 U.S.C. §§ 1301-1315 (2000) (granting title to the state to all lands lying beneath navigable waters within three miles of the coastline).
31. See Askew v. Am. Waterways Operators, Inc., 401 U.S. 325 (1973) (regarding state legislation of water pollution).
32. Matthews v. Bay Head Improvement Ass'n., 471 A.2d 355, 358 (N.J. 1984) ("The public's right to use the tidal lands and waters encompasses navigation, fishing, and recreational uses, including bathing, swimming, and other shore activities.");
33. Borough of Neptune City v. Borough of Avon-by-the-Sea, 294 A.2d 47, 54 (N.J. 1972);
34. Arnold v. Mundy, 6 N.J.L. 1, 12 (N.J. 1821);
35. Van Ness v. Borough of Deal, 393 A.2d 571, 573 (N.J. 1978).
36. Many bodies of water are thus deemed quasi-public property, giving the sovereign special prerogatives at the expense of private parties. III. Cent. R.R. Co. v. Illinois, 146 U.S. 387 (1892) (certain lands are held by the state in trust for the people, and legislative actions are void or voidable if the court finds they violate the trust);
37. Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988) (public trust extends to all tidal waters, not just navigable waters).
38. Mary Kyle McCurdy, Public Trust Protection for Wetlands, 19 ENVTL. L. 683, 683-84 (1989).
39. As a practical matter, public trust is akin to standing, and a separate claim for public nuisance, trespass, strict liability, or unjust enrichment must be proven.
40. See Susan Morath Horner, Embryo, Not Fossil: Breathing Life into the Public Trust Doctrine in Wildlife, 35 LAND & WATER L. REV. 23, 31-35 (2000) (describing the public trust doctrine as having roots in early Roman civil law).
41. DENNIS J. COYLE, PROPERTY RIGHTS AND THE CONSTITUTION: SHAPING SOCIETY THROUGH LAND USE REGULATION 224 (1993);
42. Richard J. Lazarus, Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine, 71 IOWA L. REV. 631, 636 (1986).
43. Lazarus, supra note 31, at 633.
44. See Horner, supra note 30, at 31 (noting that some commentators believe that the public trust doctrine may have roots in ancient Greece).
45. See J. Stevens, The Public Trust: A Sovereign's Ancient Prerogative Becomes the People's Environmental Right, 14 U.C. DAVIS L. REV. 195, 196-98 (1980).
46. J. INST. 35 § 2.1.1 (J. B. Moyle trans., 5th ed. 1913).
47. In the United States, the Fifth Amendment to the Constitution imposes an obligation on the national government to exercise due process of law in taking private property, as well as an obligation to pay for it: "No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." U.S. CONST. amend. V.
48. Jonathan P. Whalen, The Qualitative vs. Quantitative Approach to Nonconforming Uses Under Section 52-61 of the New York City Zoning Resolution: The Toys Case, 62 ALB. L. REV. 323, 323 (1998).
49. See Gerald Torres, Who Owns the Sky, 18 PACE ENVTL. L. REV. 227, 241-42 (2001) ("If a thing were set aside for public use by public functionaries or political community, it was categorized as res publicae. Public buildings and the furniture within them are examples of this category of property.").
50. See Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. CHI. L. REV. 711, 774 (1986) ("The 'public' in question was the 'public at large;' sometimes it acted through organized governments, but it was also capable of acting through the medium of the customs and habits of a civilized citizenry.").
51. Fred P. Bosselman, Limitations Inherent in the Title to Wetlands at Common Law, 15 STAN. ENVTL. L.J. 247, 273-74 (1996).
52. Lynda L. Butler, The Commons Concept: An Historical Concept with Modem Relevance, 23 WM. & MARY L. REV. 835, 855 (1982).
53. Id.;
54. Bosselman, supra note 40, at 276.
55. Butler, supra note 41, at 853.
56. JOHN MANWOOD, A TREATISE ON THE LAWES OF THE FOREST ch. IV, at §§ 1-2 (William S. Hein & Co. 2003) (1598).
57. John Manwood defined the forest as "a certaine Territorie of woody grounds and fruitfull pastures, privileged for wild beasts and fowles ... to rest and abide in, in the safe protection of the king, for his princely delight and pleasure, which Territorie of ground ... is [legally defined] ... for the preservation and continuance of which said place ... there are certaine particular Lawes, Privileges and Officers." Id. at ch. 1, § 1;
58. " Id. at ch. 1, § 1;
59. see also E. P. THOMPSON, WHIGS AND HUNTERS 28-32 (1975);
60. G. J. Turner, 18 Select Please of the Forest ix (G. J. Turner ed. & trans., Selden Society Publishers) (1901).
61. MANWOOD, supra note 44, at ch. 1, § 1. The "vert"-"every plant, that doth grow within the Forest and beare greene leafe"-was protective to preserve the "Venison"-a term that at the time meant flesh of any of the animals of the chase. In Manwood's flowery phrasing, "therefore you shall understand, that even as the old Foresters & good Woodmen, doe ... by this generall word Venison, understand every beast of Forest and Chase, as a word of art proper to beasts of Forest, and beasts of Chase, and to none other."
62. Id. at ch. VI, § 1; ch. V, § 1.
63. Id. at ch. VIII, § 2;
64. see also Thomas A. Lund, British Wildlife Law Before the American Revolution: Lessons from the Past, 74 MICH. L. REV. 49, 60-62 (1975) (arguing that the forest laws were intended at least in part to create "wildlife rights").
65. MANWOOD, supra note 44, at ch. XVIII, § 1.
66. Statute of Westminster II, 1285, 13 Edw., c. 47 (Eng.). The statute is not unique. See, e.g., The Penalty for Unlawfully Hunting the Hare, 1523, 14 & 15 Hen. 8, c. 10 (Eng.);
67. To Avoid Destroying of Wild-Fowl, 1533, 25 Hen. 8, c. 11, § 2 (Eng.);
68. An Act ... for the Preservation of the Game in Pheasants and Partridges, and against the Destroying of Hares with Hare-Pipes and Tracing Hares in the Snow, 1604, 2 Jam. 1, c. 27, § 6 (Eng.).
69. Justices of the Peace Shall be Conservators of the Statutes Made Touching Salmons, 1393, 17 Rich. 2, c. 9 (Eng.).
70. An Act for the More Easy Discovery and Conviction of Such as Shall Destroy the Game of this Kingdom, 1692, 4 Wm. & M., c. 23, § 9 (Eng.). When the statute prohibiting the burning of heath proved insufficient to deter illegal habitat destruction, Parliament prohibited unlicensed persons from selling fern ashes.
71. An Act for the Better Preservation of the Game, 1706, 6 Ann., c. 16, § 10 (Eng.).
72. See also An Act for the Preventing the Burning or Destroying of Goss, Furze or Ferne, in Forests or Chaces, 1755, 28 Geo. 2, c. 19, § 3 (Eng.).
73. See, e.g, An Act for Preservation of Spawn and Fry to Fish, 1558, 1 Eliz., c. 17, § 2 (Eng.).
74. See, e.g., No Man Shall Fasten Nets to Any Thing over Rivers, 1423, 2 Hen. 6, c. 15 (Eng.);
75. An Act for the Preservation of Fishing in the River Severn, 1678, 30 Car. 2, c. 9 (Eng.).
76. The English also addressed their natural environment in other ways. In 1306, King Edward decreed "all but smith to eschew the obnoxious material [i.e., coal] and return to the fuel of old." See ALLAN KANNER, ENVIRONMENTAL AND TOXIC TORT TRIALS 1-2, n.3 (2d. ed. 2001) (citation omitted).
77. Robert C. Ellickson, Property in Land, 102 YALE L.J. 1315, 1391 (1993). The enclosure movement: in England took place in waves during the period 1450-1849. The earliest enclosures were carried out unilaterally by manorial lords; the later ones, by act of Parliament. In essence, an enclosure erased some or all of the preexisting rights in common lands in a specific village, laid out new roadways, and repartitioned the affected territory into private parcels that were larger and more compact than open-field strips, but smaller than the open fields themselves.
78. Id.
79. Sarah C. Smith, A Public Trust Argument for Public Access to Private Conservation Land, 52 DUKE L.J. 629, 639 (2002).
80. Carol M. Rose, Takings, Public Trust, Unhappy Truths, and Helpless Giants: A Review of Professor Joseph Sax's Defense of the Environment Through Academic Scholarship: Joseph Sax and the Idea of the Public Trust, 25 ECOLOGY L.Q. 351, 351 (1998) (alluding to the role of the public trust in debates on the royal prerogative).
81. Smith, supra note 56, at 639
82. (citing to Lazarus, supre note 31, at 636) (stating that the nineteenth century jurists specifically included jus publicum, the rights of the general public, in their division of water rights).
83. Zachary C. Kleinsasser, The Law and Planning of Public Open Space: Boston's Big Dig and Beyond, 32 B.C. ENVTL. AFF. L. REV. 421, 433-34 (2005) (citation omitted).
84. Shannon Peterson, Bison to Blue Whales: Protecting Endangered Species Before the Endangered Species Act of 1973, 22 ENVIRONS L. & POL'Y J. 71, 73 (1999).
85. See Thomas A. Lund, Early American Wildlife Law, 51 N.Y.U. L. REV. 703, 720 n. 139 (1976).
86. See Dean Lueck, Property Rights and the Economic Logic of Wildlife Institutions, 35 NAT. RESOURCES J. 625, 633 (1995).
87. See, e.g., John F. Hart, Colonial Land Use Law and Its Significance for Modern Takings Doctrine, 109 HARV. L. REV. 1252, 1294-95 (1996).
88. See, e.g., Curtis v. Hudburt, 2 Conn. 309 (1817);
89. Eastman v. Curtis, 1 Conn. 323 (1815);
90. Cottrill v. Myrick, 12 Me. 222 (1835);
91. Vinton v. Walsh, 26 Mass. (9 Pick.) 87 (1829);
92. Stoughton v. Baker, 4 Mass. 522 (1808);
93. Sickles v. Sharp, 13 Johns. 497 (N.Y. Sup. Ct. 1816);
94. State v. Glen, 52 N.C. 321 (1859);
95. Fagan v. Armistead, 33 N.C. (1 Ired.) 433 (1850);
96. Hart v. Hill, 1 Whart. 124 (Pa. 1835);
97. Boatwright v. Bookman, 24 S.C.L. (Rice) 447 (S.C.L. 1839).
98. THEODORE STEINBERG, NATURE INCORPORATED 174-75 (1991);
99. see also Peter M. Molloy, Nineteenth Century Hydropower: Design and Construction of Lawrence Dam, 1845-1848, 15 WINTERTHUR PORTFOLIO 315 (1980).
100. In Martin v. Waddell, 41 U.S. 367, 416 (1842), the Supreme Court held that the English public trust doctrine had survived the American Revolution: "[W] hen the people of New Jersey took possession of the reins of government, and took into their own hands the powers of sovereignty the prerogatives and regalities which before belonged either to the crown or the parliament, became immediately and rightfully vested in the state."
101. See Lazarus, supra note 31, at 636-40.
102. Sharon M. Kelly, Note, The Public Trust and the Constitution: Routes to Judicial Overview of Resource Management Decisions in Virginia, 75 VA. L. REV. 895, 897 (1989) ("In recent years, these uses have been expanded to include hunting, swimming, recreational boating, aesthefics, climate, scientific study, environmental and ecological quality, open space, wildlife habitat preservation, and water allocation.").
103. Robin Kindus Craig, Comment, Of Fish, Federal Dams, and State Protections: A State's Options Against the Federal Government for Dam-Related Fish Kills on the Columbia River, 26 ENVTL. L. 355, 360 (1996) ("Under the wildlife laws of the United States, management of fish and wildlife is the states'-not the federal government's-prerogative. As early as 1895, the United States Supreme Court held that the power to regulate wild animals passed from England through the colonial governments to the states.").
104. 6 N.J.L. 1 (N.J. 1821).
105. New Jersey was the first state in the country to consider the applicability of the public trust doctrine and has applied the doctrine expansively. "[The state's natural] resources are vital for the economic, recreational, and aesthetic benefits central to the health and well being of the citizens of this State." New Jersey Council on Environmental Quality, N.J. Stat. Ann. § 13:1DD-1 (2003).
106. "[T]he discharge of petroleum products and other hazardous substances within or outside the jurisdiction of this State constitutes a threat to the economy and environment of this State." New Jersey Spill Compensation and Control Act, N.J. Stat. Ann. § 58:10-23.11a (2003).
107. Arnold, 6 N.J.L. at 42.
108. WILLIAM BLACKSTONE, 2 COMMENTARIES *261.
109. EMMERICH DE VATTEL, THE LAW OF NATIONS 120 (1758).
110. Arnold, 6 N.J.L. at 62.
111. Corfield v. Coryell, 6 F. Ca. 546, 550-53 (C.C.E.D. Pa. 1823).
112. See Martin v. Waddell, 41 U.S. 367 (1842),
113. Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845),
114. Smith v. Maryland, 59 U.S. 71, 73 (1855),
115. McCready v. Virginia, 94 U.S. 391 (1876),
116. and Manchester v. Massachusetts, 139 U.S. 240 (1890) (tracing subsequent developments).
117. See, e.g., Woodring v. Forks Twp., 28 Pa. 355, 361 (1857).
118. Raymond R. Coletta, Reciprocity of Advantageand Regulatory Takings: Toward a New Theory of Takings Jurisprudence, 40 AM. U. L. REV. 297, 361 (1990) ("The laissez faire philosophies of Locke, Smith, and Bentham contributed to this perception of the absolute and individualistic nature of private property. Property bespoke individual rights which tolerated only minimal interference by the state.").
119. See Gardenshire v. State, 221 P. 228, 229 (Adz. 1923).
120. See St. Louis v. Polar Wave Ice & Fuel Co., 296 S.W. 993, 994 (Mo. 1927).
121. See Gardenshire, 221 P. at 229.
122. Most controls of land use come from government regulation, but some arise at common law. One is the concept of nuisance. Another is the notion of waste, which can arise when people share interests and rights in a resource. Waste is committing acts upon the land that are harmful to the rights of the party not in possession. A tenant who cuts down all the trees in a landlord's yard, for example, would be guilty of waste. Waste can be affirmative (cutting down the trees) or permissive (allowing a roof to deteriorate so that rain damages the interior of the house). The remedy for waste can be money damages, an injunction to stop the conduct that is causing the harm, or some combination of the two. See, e.g., Lynda L. Butler, Defining a Water Ethic Through Comprehensive Reform: A Suggested Framework for Analysis, 1986 U. ILL. L. REV. 439, 445 (1986).
123. Charles F. Wilkinson, The Headwaters of the Public Trust Some Thoughts on the Source and Scope, 19 ENVTL. L. 425, 454-55 (1989).
124. See COYLE, supra note 31, at 224-25 (arguing that the public trust doctrine has been applied beyond its original commercial intentions to include preservation and environmental motives).
125. 146 U.S. 387 (1892).
126. Id. at 448.
127. Id. at 449.
128. Id. at 439.
129. Id. at 418.
130. Id. at 464-65.
131. See Jose L. Fernandez, Untwisting the Common Law: Public Trust and the Massachusetts Colonial Ordinance, 62 ALB. L. REV. 623, 645 (1998).
132. III. Cent. R.R. Co., 146 U.S. at 453. The Court held that because the state holds submerged lands in trust for the people, it cannot convey those lands without some clear benefit to the trust: The trust devolving upon the state for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. The control of the state for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining .... A grant of all the lands under the navigable waters of a state has never been adjudged to be within the legislative power; and any attempted grant of the kind would be held, if not absolutely void on its face, as subject to revocation. The state can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties, except in the instance of parcels mentioned for the improvement of the navigation and use of the waters, or when parcels can be disposed of without impairment of the public interest in what remains, then it can abdicate its police powers in the administration of government and the preservation of the peace. In the administration of government the use of such powers may for a limited period be delegated to a municipality or other body, but there always remains with the state the right to revoke those powers and exercise them in a more direct manner, and one more conformable to its wishes. So with trusts connected with public property, or property of a special character, like lands under navigable waters; they cannot be placed entirely beyond the direction and control of the state.
133. The Court held that because the state holds submerged lands in trust for the people, it cannot convey those lands without some clear benefit to the trust: The trust devolving upon the state for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. The control of the state for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining .... A grant of all the lands under the navigable waters of a state has never been adjudged to be within the legislative power; and any attempted grant of the kind would be held, if not absolutely void on its face, as subject to revocation.
134. Id. at 452.
135. Id. at 455-56.
136. City of Oakland v. Oakland Water-Front Co., 50 P. 277, 285 (Cal. 1897);
137. People ex inf. Webb v. Cal. Fish Co., 138 P. 79, 86 (Cal. 1913).
138. See Oakland Water-Front Co., 50 P. at 286;
139. Cal. Fish Co., 138 P. at 87.
140. E. Pearson, Illinois Central and the Public Trust Doctrine in State Law, 15 VA. ENVTL. LAW 713, 714 (1996);
141. see, e.g., Cal. Trout, Inc. v. State Water Res. Control Bd., 255 Cal. Rptr. 184, 211-12 (Cal. Ct. App. 1989) (applying public trust doctrine to fish);
142. Wade v. Kramer, 459 N.E. 2d 1025 (III. App. Ct. 1984) (applying public trust doctrine to wildlife).
143. See G. Meyers, Variation on a Theme: Expanding the Public Trust Doctrine Wildlife, 19 ENVTL. L. 723, 730-31 (1989);
144. see, e.g., ALASKA CONST. art. VIII, § 3;
145. La. CONST. art. IX §§ 1, 7;
146. N.C. GEN. STAT. § 113-133.1 (2000).
147. See Rose, supra note 57, at 352 (arguing that Professor Sax "ushered in the ... most recent major revival of the public trust concept" by "unhook[ing] it from its traditional moorings on or around water bodies and appl[ying] it to dry land"
148. (citing Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law. Effective Judicial Intervention, 68 MICH. L. REV. 471 (1970))).
149. Sax, supra note 98, at 556.
150. Id. at 556-57.
151. In the 1980s, it appeared that the public trust expansion was ending, and that contraction was in sight. See Lazarus, supra note 31, at 713-14 (arguing that recent Supreme Court cases, including Kaiser Aetna v. United States, 444 U.S. 164 (1979), presaged the beginning of the end for the "environmental" public trust doctrine). The Supreme Court, however, seems to have avoided a repudiation of an environmental interpretation of the public trust doctine.
152. See Phillips Petroleum Co. v. Mississippi, 484 U.S. 475 (1988) (holding that states have the right to determine the extent of their public trusts).
153. 161 U.S. 519 (1896), overruled on other grounds by Hughes v. Oklahoma, 441 U.S. 322 (1979).
154. Id. at 522.
155. Id. at 527-28. The Supreme Court stated, with regard to the chain of title at the close of the nineteenth century: [The] attribute of government to control the taking of animals ferae naturae, which was recognized and enforced by the common law of England, was vested in the colonial governments .... It is also certain that the power which the colonies thus possessed passed to the states with the separation from the mother country, and remains in them at the present day, in so far as its exercise may not be incompatible with, or restrained by, the rights conveyed to the federal government by the constitution.
156. Id. with regard to the chain of title at the close of the nineteenth century: [The] attribute of government to control the taking of animals ferae naturae, which was recognized and enforced by the common law of England, was vested in the colonial governments .... It is also certain that the power which the colonies thus possessed passed to the states with the separation from the mother country, and remains in them at the present day, in so far as its exercise may not be incompatible with, or restrained by, the rights conveyed to the federal government by the constitution
157. Id. at 528-30. with regard to the chain of title at the close of the nineteenth century: [The] attribute of government to control the taking of animals ferae naturae, which was recognized and enforced by the common law of England, was vested in the colonial governments .... It is also certain that the power which the colonies thus possessed passed to the states with the separation from the mother country, and remains in them at the present day, in so far as its exercise may not be incompatible with, or restrained by, the rights conveyed to the federal government by the constitution
158. Id. at 529. with regard to the chain of title at the close of the nineteenth century: [The] attribute of government to control the taking of animals ferae naturae, which was recognized and enforced by the common law of England, was vested in the colonial governments .... It is also certain that the power which the colonies thus possessed passed to the states with the separation from the mother country, and remains in them at the present day, in so far as its exercise may not be incompatible with, or restrained by, the rights conveyed to the federal government by the constitution
159. Id. at 534 with regard to the chain of title at the close of the nineteenth century: [The] attribute of government to control the taking of animals ferae naturae, which was recognized and enforced by the common law of England, was vested in the colonial governments .... It is also certain that the power which the colonies thus possessed passed to the states with the separation from the mother country, and remains in them at the present day, in so far as its exercise may not be incompatible with, or restrained by, the rights conveyed to the federal government by the constitution
160. (quoting Magner v. The People, 97 III. 320, 333 (1881)).
161. Proponents of the state ownership doctrine ignored the Supreme Court's careful qualification that the state power extended only "so far as its exercise may not be incompatible with, or restrained by, the rights [sic] conveyed to the Federal government by the Constitution." Id. at 528.
162. See general MICHAEL J. BEAN & MELAINE J. ROWLAND, THE EVOLUTION OF NATIONAL WILDLIFE LAW 12-17 (3d ed. 1983).
163. 441 U.S. 322 (1979).
164. Id. at 338.
165. Id. at 334
166. (quoting Toomer v. Witsell, 334 U.S. 385, 402 (1948)).
167. See, e.g., Clajon Produce Corp. v. Petera, 854 F. Supp. 843, 851 (D. Wyo. 1994) (concluding that, after Hughes, the state's role in governing and conserving wildlife remains unchanged);
168. State v. Fertterer, 841 P.2d 467, 470 (Mont. 1992) (holding that state holds wildlife "in its sovereign capacity for the use and benefit of the people generally"), overruled on other grounds by State v. Gatts, 928 P.2d 114 (Mont. 1996);
169. O'Brien v. Wyoming, 711 P.2d 1144, 1148 (Wyo. 1986) (stating that "by W.S. 23-1-103, all wildlife in Wyoming is declared to be the property of the state").
170. "[I]t is the policy of this State to restore, enhance and maintain the chemical, physical, and biological integrity of its waters, to protect public health, to safeguard fish and aquatic life and scenic and ecological values, and to enhance the domestic, municipal, recreational, industrial and other uses of water." Water Pollution Control Act, N.J. STAT. ANN. § 58:10A-2 (2003).
171. See Lazarus, supra note 31, at 649.
172. In re Steurt Transp. Co., 495 F. Supp. 38, 39 (E.D. Va. 1980).
173. Id.
174. Id. at 40.
175. See, e.g., Nat'l Audubon Soc'y v. Super. Ct. of Alpine Gounty, 658 P.2d 709, 720-21 (Cal. 1983), cert. denied, 464 U.S. 977 (1986) (court applied doctrine to non-navigable waters);
176. Gould v. Greylock Reservation Comm'n, 215 N.E. 2d 114, 121 (Mass. 1966) (court held that rural park lands were part of the public trust);
177. see also Cynthia Carlson, Making CERCLA Natural Resource Damage Regulations Work: The Use of The Public Trust Doctrine and Other State Remedies, 18 ENVTL. L. REP. NEWS & ANALYSIS 10,299, 10,302 (1988).
178. Marks v. Whitney, 491 P.2d 374, 380 (Cal. 1971);
179. United Plainsman Ass'n v. N.D. State Water Conservation Comm'n., 247 N.W. 2d 457, 462-63 (N.D. 1976);
180. Borough of Neptune City v. Borough of Avon-by-the-Sea, 294 A.2d 47, 54-55 (N.J. 1972);
181. Carlson, supra note 119, at 10,302. other State Remedies
182. Nat'l Audubon Soc'y, 658 P.2d at 718;
183. seealso Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 471, 475 (1970);
184. Charles F. Wilkinson, The Public Trust Doctrine in Public Land Law, 14 U.C. DAVIS L. REV. 269, 315 (1980).
185. III. Cent. R.R. Co. v. Illinois, 146 U.S. 387, 460 (1892) (certain lands are held by the state in trust for the people, and legislative actions are void or voidable if the court finds they violate the trust);
186. Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 484-85 (1988) (public trust extends to all tidal waters, not just navigable waters).
187. See Whitney, 491 P.2d at 381;
188. see also Carlson, supra note 119, at 10,302 (1988); other State Remedies
189. H. Kenison, et al., State Actions for Natural Resource Damages: Enforcement of the Public Trust, 17 ENVTL. L. REP. NEWS & ANALYSIS 10,434 (1987);
190. F. Halter & J. Thomas, Recovery of Damages by States for Fish and Wildlife Losses Caused by Pollution, 10 ECOLOGY L.Q. 5 (1982).
191. "The State has not only the right but also the affirmative fiduciary obligation to ensure that the rights of the public to a viable marine environment are protected, and to seek compensation for any diminution in that trust corpus." State Dep't of Envtl. Prot. v. Jersey Cent. Power & Light Co., 308 A.2d 671, 674 (N.J. Super. Ct. Law Div. 1973), affd., 336 A.2d 750 (N.J. Super. Ct. App. Div. 1975), rev'd on other grounds, 351 A.2d 337 (N.J. 1976).
192. "The state has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible." Natl Audubon Soc'y, 658 P.2d at 728.
193. This duty includes the power of the state to reconsider any diversions that were previously authorized in accordance with public trust values. Id. This duty includes the power of the state to reconsider any diversions that were previously authorized in accordance with public trust values. Id.
194. D. Musiker et al., The Public Trust Parens Patriae Doctrines: Protecting Wildlife in Uncertain Political Times, 16 PUB. LAND L. REV. 87, 89 (1995);
195. accord Sax, supra note 120, at 489-91.
196. III. Cent. R.R. Co., 146 U.S. at 452-54;
197. see also, M. Blumm et al., Renouncing the Public Trust Doctrine: The Validity of Idaho House Bill 794,24 ECOLOGY L.Q. 461, 493 (1997).
198. Seth Macinko, Public or Private?: United States Commercial Fisheries Management and the Public Trust Doctrine, Reciprocal Challenges, 33 NAT. RESOURCES J. 919, 951 (1993)
199. (citing M. Mantell, Frontier Issues, in MANAGING NATIONAL PARK SYSTEM RESOURCES: A HANDBOOK ON LEGAL DUTIES, OPPORTUNITIES, AND TOOLS 235, 244 (M. Mantell ed., 1990)).
200. Id. at 952
201. (citing G. Cook, The Public Trust Doctrine in Alaska, in RECENT DEVELOPMENT IN WILDLIFE AND FISHERIES LAW IN ALASKA 29 (1992)).
202. RODGERS, supra note 4, at 171-72.
203. City of Milwaukee v. State, 214 N.W. 820, 830 (Wis. 1927).
204. See Slocum v. Borough of Belmar, 569 A.2d 312, 317 (N.J. Super. Ct. Law Div. 1989) (holding that state has duties applicable to any other trustee).
205. Memorandum from Steven Shareff, Senior Attorney, National Legal Research Group, Inc., to Stephen S. Joiner (Feb. 4, 1998), http://www.nlrg.com/ samples/shareff.pdf.
206. See 76 AM. JUR. 2D Trusts § 511 (2005);
207. see also RESTATEMENT (SECOND) OF TRUSTS § 171 (1959).
208. See RESTATEMENT (SECOND) OF TRUSTS supra note 133, at § 175 cmt. f.
209. Cont'l Bank & Trust Co. v. County Club Mobile Estates, 632 P.2d 869, 872 (Utah 1981).
210. Sax, supra note 121, at 521.
211. Id. at 490.
212. Musiker, supra note 125, at 96 (citations omitted);
213. see, e.g., Nat'l Audubon Soc'y v. Super. Ct. of Alpine County, 658 P.2d 709, 709 (Cal. 1983), cert. denied, 464 U.S. 977 (1986).
214. 438 U.S. 645 (1978).
215. However, once water, such as the groundwater, is properly reduced to
216. 209 U.S. 349, 356-57 (1908) (holding that its vast underground waters which feed its streams and inland lakes are "a great public good ... [that]... it may keep and give no one a reason for its will").
217. See Borough of Neptune City v. Borough of Avon-by-the-Sea, 294 A.2d 47, 54-55 (N.J. 1972) (noting that "[t]he public trust doctrine, like all common law principles, should not be considered fixed or static, but should be molded and extended to meet changing conditions and needs of the public it was created to benefit").
218. Id. at 55.
219. See Van Ness v. Borough of Deal, 393 A.2d 571, 574 (N.J. 1972) (holding that dry beach is part of the New Jersey public trust, even when the beach has been substantially improved by a private owner).
220. See Marks v. Whitney, 491 P.2d 374, 380 (defining these terms to include "the rights to fish, hunt, bathe, swim, and use for boating or general recreation purposes the navigable waters of the state").
221. See City of Los Angeles v. Venice Peninsula Props., 644 P.2d 792, 794 (Cal. 1982) (describing how the owner traced title to a Mexican grant that was affirmed by federal patent processes);
222. City of Berkeley v. Super. Ct. of Alameda County, 606 P.2d 362, 363 (Cal. 1980) (stating that the private company had purchased the land from the state in a sale that was authorized for the benefit of the public trust);
223. COYLE, supra note 31, at 131-32 (discussing the importance of Berkeley and Venice Peninsula in setting new public trust precedent).
224. California v. Super. Ct. of Lake County, 625 P.2d 239, 252 (Cal. 1981) (holding that an owner of land along the shorelines of navigable nontidal waters in this case, Clear Lake, had title to land between the high and low water marks, but that the title was subject to the public trust);
225. California v. Super. Ct. of Placer County, 625 P.2d 256, 260 (Cal. 1981) (holding that boundaries between public and private lands should be determined with reference to the lake's current condition, in this case, Lake Tahoe).
226. COYLE, supra note 31, at 133.
227. Nat'l Audubon Soc'y v. Super. Ct. of Alpine County,658 P.2d 709, 709 (Cal. 1983) cert. denied, 464 U.S. 977 (1986).
228. Id. at 711.
229. Id. at 720-21.
230. John Alton Duff & Kristen Michele Fletcher, Augmenting the Public Trust: The Secretary of State's Efforts to Create a Public Trust Ecosystem Regime in Mississippi, 67 MISS. L.J. 645, 677-78 (1998).
231. See M. J. SELBY, HILLSCOPE MATERIALS AND PROCESSES 214-18 (2d ed. 1993) (explaining how rainfall runs across and through the ground to reach streams and rivers).
232. See Sax, supra note 121, at 545.
233. See, e.g., Larman v. State, 552 N.W. 2d 158, 161 (Iowa 1996) (stating that the public trust doctrine encompasses recreational uses);
234. State v. Longshore, 5 P.3d 1256, 1262 (Wash. 2000) (declaring that the public trust in Washington includes "incidental rights" such as boating and swimming as well as the right to navigation).
235. Wade v. Kramer, 459 N.E. 2d 1025, 1027-29 (III. App. Ct. 1984) (recognizing that wildlife is part of the Illinois public trust, but reasoning that the legislature has the authority to determine when public need for transportation overrides the public interest in wildlife, and refusing to stop the construction of a bridge that would cause some environmental damage).
236. Lazarus, supra note.31, at 649.
237. Gion v. City of Santa Cruz, 465 P.2d 50, 58-60 (Cal. 1970) (holding that the California public trust recreational interest is superior to the private property interest).
238. But see Burch v. Gombos, 98 Cal. Rptr. 2d 119, 125 (Cal. Ct. App. 2000) (noting that enactment of Civil Code Section 1009 and amendments to Civil Code Section 813 were in reaction to Gion and "largely abrogated its holding").
239. See also Gerwitz v. City of Long Beach, 330 N.Y.S. 2d 495, 511-12 (N.Y. 1972) (holding that the New York public trust recreational interest is superior to a municipal interest).
240. Hixon v. Pub. Serv. Comm'n, 146 N.W. 2d 577, 582 (Wis. 1966).
241. See Weden v. San Juan County, 958 P.2d 273, 283-85 (Wash. 1998) (upholding a San Juan County ordinance which denied public access to certain recreational boating vehicles that were harmful to the environment).
242. Id.
243. See Horner, supra note 30, at 58-72 (describing the varying approaches that Louisiana, Pennsylvania, Hawaii, Alaska, and Florida have taken in codifying the public trust).
244. See Opinion of the Justices to the House of Representatives, 313 N.E. 2d 561, 566 (Mass. 1974) (holding that the Massachusetts public trust doctrine does not include the right to walk on the beach for bathing).
245. Id.
246. Dep't of Natural Res. v. Mayor & Council of Ocean City, 332 A.2d 630, 638 (Md. 1975) (rejecting an extension of Maryland's public trust doctrine to include recreational interests).
247. III. Cent. R.R. Co. v. Illinois, 146 U.S. 387, 452 (1892).
248. Borough of Neptune City v. Borough of Avon-by-the-Sea, 294 A.2d 47, 54 (N.J. 1972).
249. Marks v. Whitney, 491 P.2d 374, 380 (Cal. 1970).
250. EDWARD H.P. BRANS, LIABILITY FOR DAMAGE TO PUBLIC NATURAL RESOURCES, Kluwer Law Int'l 51 (The Hague: 2001) (citations omitted).
251. See, e.g., Patrick Ryan, Application of the Public Trust Doctrine and Principles of Natural Resource Management to Electromagnetic Spectrum, 10 MICH. TELECOMM. & TECH. L. REV. 285 (2004) (revealing that the public trust doctrine acts as a check and balance against government miscalculations, allowing states to modify its scope when necessary).
252. See also infra note 176.
253. Rettkowski v. Dep't of Ecology, 858 P.2d 232, 239 (Wash. 1993).
254. See id. (holding that the public trust doctrine should not be extended to the groundwater at issue in the case).
255. See Ralph W. Johnson, Public Trust Protection for Stream Flows and Lake Levels, 14 U.C. DAVIS L. REV. 233, 240 (1980).
256. See Shively v. Bowlby, 152 U.S. 1 (1894).
257. Erik Swenson, Public Trust Doctrine and Groundwater Rights, 53 U. MIAMI L. REV. 363, 363-64 (1999).
258. Marks v. Whitney, 491 P.2d 374, 380 (Cal. 1970) (citations omitted).
259. Bruce Ledewitz & Robert Taylor, Law and the Coming Environmental Catastrophe, 21 WM. & MARY ENVTL. L. & POL'Y REV. 599, 619-20 n.96 (1997) (citations omitted).
260. Purdue Univ. Dept of Agricultural and Biological Engineering, The Importance of Groundwater, available at http://pasture.ecn.purdue.edu/ ~agenhtml/agen521/epadir/qrndwtr/importance.html (last visited Sep. 14, 2005).
261. Id.
262. Id.
263. Id.
264. World Meteorological Ass'n, Groundwater: The Invisible Resource, available at http://www.wmo.ch/web-en/Wdwfea.html (last visited Sept. 14, 2005).
265. See A. DAN TARLOCK, LAW OF WATER RIGHTS AND RESOURCES § 4.11 (1997).
266. C.W. FETTER, APPLIED HYDROGEOLOGY 5, 45-48 (2d ed. 1988).
267. See id. at 4-6 (discussing the main aspects of the hydrologic cycle). (discussing the main aspects of the hydrologic cycle)
268. Id. at 5, 45-48. (discussing the main aspects of the hydrologic cycle)
269. See, e.g., PA. CONST. art. I, § 27; FLA. CONST. art. X, § 11; HAW. CONST. art. XII, § 4.
270. See, e.g., Save Ourselves, Inc. v. La. Envtl. Control Comm'n, 452 So. 2d 1152, 1158 (La. 1984).
271. PA. CONST. art. I, § 27.
272. Erin Ryan, Public Trust and Distrust. The Theoretical Implications of the Public Trust Doctrine for Natural Resource Management, 31 ENVTL. L. 477, 478 (2001).
273. FLA. CONST. art. X, § 11.
274. HAW. CONST. art. XII, § 4.
275. See, e.g., ALA. CONST. art. I, § 24; MINN. CONST. art. II, § 2; S.C. CONST. art. 14, § § 1 & 4; WIS. CONST. art. IX, § 1.
276. Barton H. Thompson, Environmental Policy and State Constitutions: The Potential Role of Substantive Guidance, 27 RUTGERS L.J. 863, 871 (1996) (citations omitted).
277. Save Ourselves, Inc. v. La. Envtl. Control Comm'n, 452 So. 2d 1152,1158 (La. 1984).
278. LA. CONST. art. IX, § 1.
279. See, e.g., Webb v. Cal. Fish Co., 138 P. 79, 87 (Cal. 1913) (holding that tidelands are held in public trust by the state, and that the California state constitution commits the execution of the public trust to the legislature).
280. See Life of the Land v. Land Use Comm'n, 623 P.2d 431, 441 (Haw. 1981) (relying on public trust clause of the Hawaiian Constitution to grant standing to an environmental activist group).
281. McCulloch v. Maryland, 17 U.S. 316, 407 (1819) (emphasis in original).
282. Id. at 421.
283. W. WILSON, CONSTITUTIONAL GOVERNMENT IN THE UNITED STATES 69 (1911).
284. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 408 (1978) (Blackmun, J., concurring).
285. Id. (emphasis in original).
286. See Meyers, supra note 97, at 731 (regarding the subsequent judicial expansion of the doctrine to include fish and wildlife);
287. Lazarus, supra note 31, at 658-60.
288. See RODGERS, supra note 4;
289. Carlson, supra note 119, at 10,302.
290. III. Cent. R.R. Co. v. Illinois, 146 U.S. 387, 452-53 (1892).
291. See RODGERS, supra, note 4, at 172 ("The recurring questions call for an identification of the resources impressed with the trust and the public uses encumbering them.").
292. See id. (explaining that the public trust demands fair procedures, decisions that are justified, and results that are consistent with protecting and perpetuating the resource).
293. See RODGERS, supra note 202.
294. BLACK'S LAW DICTIONARY 818 (7th ed. 1999) (interference).
295. Id. at 550 (enjoyment). (enjoyment)
296. See RODGERS, supra note 4, at 175.
297. Md. Dep't of Nat. Res. v. Amerada Hess Corp., 350 F. Supp. 1060 (D. Md. 1972).
298. Id. at 1062.
299. Id. at 1066.
300. Id. at 1067.
301. 313 N.E. 2d 409, 411 (Ohio 1974).
302. Id.
303. 200 N.W. 2d 59, 61 (N.D. 1972).
304. Id.
305. Commonwealth v. Agway, Inc., 232 A.2d 69, 71 (Pa. Super. Ct. 1967).
306. "The state has an affirmative duty to take the public trust into account in the planning and allocafion of water resources, and to protect public trust uses whenever feasible." Natl Audubon Soc'y v. Super. Ct. of Alpine County, 658 P.2d 709, 728 (Cal. 1983), cert. denied, 464 U.S. 977 (1986).
307. This duty includes the power of the state to reconsider any diversions that were previously authorized in accordance with public trust values. Id.;
308. see also Matthews v. Bay Head Improvement Ass'n, 471 A.2d 355, 365 (N.J. 1984).
309. See, e.g., Puerto Rico v. SS Zoe Colocotroni, 628 F.2d 652, 671 (1st Cir. 1980) (rejecting defendants argument that states have no trust right in wildlife).
310. See supra Parts III(D)(2)(a) & 3(a).
311. Michael R. Rodburg & Richard F. Ricci, Top Ten Reasons Why New Jersey Businesses Should Be Concerned About Natural Resource Damages, THE METRO. CORPORATE COUNSEL (April 2003), availableat http://www.lowenstein.com/new/TMCC0403.pdf.
312. Id.
313. NAACP v. NAACP Legal Def. & Educ. Fund, Inc., 753 F.2d 131, 137 (D.C. Cir. 1985).
314. Id.
315. Lynda J. Oswald, New Directions in Joint and Several Liability Under CERCLA?, 28 U.C. DAVIS L. REV. 299, 311 (1995) (Courts have begun "to impose joint and several liability more frequently in such cases by finding that the harm created by multiple polluters was indivisible.").
316. Smith v. Lightning Bolt Prods. Inc., 861 F.2d 363, 374 (2d Cir. 1988)
317. (citing Velazquez v. Water Taxi, Inc., 49 N.Y.2d 762, 764 (N.Y. 1980)).
318. See United States v. Texas, 507 U.S. 529, 534 (1993) ("[T]o abrogate a common-law principle, the statute must 'speak directly'to the question addressed by the common law.") (citations omitted).
319. CERCLA provides some guidance here. Despite CERCLA's common law joint and several liability, Congress recommended that "[i]n resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate." 42 U.S.C. § 9613(f)(1) (2000).
320. 42 U.S.C. § 9607(b).
321. See M. STUART MADDEN, LAW OF ENVIRONMENTAL AND TOXIC TORTS 673-76 (2d ed. 2001).
322. See New Mexico v. Gen. Elec. Co., 335 F. Supp. 2d 1185 (D.N.M. 2004);
323. New Mexico v. Gen. Elec. Co., 335 F. Supp. 2d 1266 (D.N.M. 2004);
324. New Mexico v. Gen. Elec. Co., CIV 99-1118 BSJ/KBM & CIV 99-1254 BSJ /ACT (consolidated) (D.N.M.).
325. DOUGLAS LAYCOCK, MODERN AMERICAN REMEDIES 15-16 (3d ed. 2002).
326. Id. at 17.
327. Id. at 19.
328. See Dep't of Envtl. Prot. v. Jersey Cent. Power & Light Co., 336 A.2d at 750, 759 (N.J. Super. Ct. 1975) (New Jersey Court of Appeals held that the state, as public trustee, had a right to seek compensatory damages for a fish kill caused by the defendant's release of toxic pollutants);
329. see also Md. Dep't of Natural Res. v. Amerada Hess Corp., 350 F. Supp. 1060 (D. Md. 1972);
330. Maine v. M/V Tomano, 357 F. Supp. 1097 (S.D. Me. 1973).
331. Report of the National Oceanic and Atmospheric Administration Panel on Contingent Valuation, 58 Fed. Reg. 4601, 4611 (Jan. 15, 1993) (codified at 15 C.F.R. pt. 990).
332. Richard B. Stewart, et al., Evaluating the Present Natural Resource Damages Regime: The Lawyer's Perspective, in NATURAL RESOURCE DAMAGES: A LEGAL, ECONOMIC, AND POLICY ANALYSIS 163 (Richard B. Stewart ed., 1995).
333. See infra Part III(H)(2).
334. Frank B. Cross, Natural Resource Damage Valuation, 42 VAND. L. REV. 269, 302-03 (1989).
335. Id. at 303.
336. Id.
337. Id. (citations omitted).
338. Id. at 309.
339. Id. at 285.
340. Id. at 285-86.
341. Id.
342. Arne Naess, The Shallow and the Deep, Long-Range Ecology Movement: A Summary, 16 INQUIRY 95, 96 (1973), available at http://www.alamut.com/ subj/ideologies/pessimism/NaessdeepEcology.html.
343. 426 N.E. 2d 644 (Ind. 1981).
344. Id. at 645.
345. Id. at 645, 647 n.3.
346. Id. at 647.
347. Henry Brean, Western States to Miss Drought Plan Deadline, LAS VEGAS REVIEW-JOURNAL, March 31, 2005, at B4.
348. See Steven D. Barnes, Conserve Water Now or Pay Up in the Future, ORLANDO SENTINEL, May 30, 2005, at F1.
349. Shawn Tully, Water, Water Everywhere, FORTUNE, May 15, 2000, at 342, 343.
350. Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 265 (1946).
351. 628 F.2d 652, 675-77 (1st Cir., 1980).
352. Id. at 675.
353. 531 F. Supp. 267 (S.D. Fla. 1981).
354. Id. at 275.
355. See, e.g., Nichols v. Burke Royalty Co., 576 P.2d 317, 322 (Okla. Ct. App. 1977).
356. Id.
357. See, e.g., Atlas Chem. Indus., Inc. v. Anderson, 524 S.W. 2d 681, 689 (Tex. 1975).
358. See generally Allan Kanner & Tibor Nagy, Measuring Loss of Use Damages in Natural Resource Damage Actions, 30 COLUM. J. ENVTL. L. 417 (2005).
359. See United States v. Hatahley, 257 F.2d 920 (10th Cir. 1958) (considering loss of use damages for Native Americans whose horses were killed by the United States government).
360. See In re Montaux Oil Transp. Corp. v. S.S. Mut. Underwriting Ass'n, Ltd., No. 90 CIV 5702, 1996 WL 340000, at *2 (S.D.N.Y. June 19, 1996) (holding loss of use damages are recoverable under the Clean Water Act);
361. Gen. Elec. Co. v. U.S. Dep't of Commerce, 128 F.3d 767, 770 (D.C. Cir. 1997) (holding loss of use damages are recoverable under CERCLA).
362. 16 U.S.C. § 19jj(b)(1)(A) (2000).
363. Steven Edwards, In Defense of Environmental Economics, 9 ENVTL. ETHICS 73, 79 (1987).
364. Id.
365. Id.
366. William W. Shaw, Problems in Wildlife Valuation in Natural Resource Management, in VALUATION OF WILDLIFE RESOURCE BENEFITS 221, 225 (G. Peterson & A. Randall eds., 1984)
367. (citing studies that show that 20 million Americans spent more than 478 million days engaged in consumptive use sport hunting in 1975 compared to the 49 million Americans that spent 1.6 billion days participating in wildlife observation).
368. Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 600 (1982);
369. Hawaii v. Stanford Oil Co. of Cal., 405 U.S. 251, 257 (1972).
370. Note, The Original Jurisdiction of the United States Supreme Court, 11 STAN. L. REV. 665, 671 n.47 (1959);
371. see Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 57-58 (1890).
372. Note, State Protection of its Economy and Environment Parens Patriae Suits for Damages, 6 COLUM. J. L. & SOC. PROBS. 411, 412-13 (1970).
373. Georgia v. Tenn. Copper Co., 206 U.S. 230, 237 (1907);
374. Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387, 393-94 (1938).
375. See, e.g., Alfred L. Snapp & Son, Inc., 458 U.S. at 600-01.
376. The doctrinal labels used to support states' actions on behalf of their citizenry vary. Sometimes no doctrinal labels are used. See, e.g., Wyandotte Transp. Co. v. United States, 389 U.S. 191 (1967) (cause of action for costs of cleanup). Sometimes the state's action is framed as one brought by the trustee of property for the benefit of the public. State v. City of Bowling Green, 313 N.E.2d 409 (Ohio 1974) (cause of action for damages describing parens patriae);
377. Alfred L. Snapp & Son, Inc., 458 U.S. at 608-09 (cause of action to protect economic interests of a class of workers).
378. See, e.g.,LA. CONST. pmbl. (The state exists to "promote the health, safety ... and welfare of the people.").
379. See, e.g., Kansas v. Colorado, 206 U.S. 46, 117 (1907).
380. See, e.g., Idaho v. S. Refrigerated Transp., Inc., No. 88-1279, 1991 WL 22479, at *5 (D. Idaho Jan. 24,1991) (allowing state parens patriae negligence action as alternative to CERCLA claim for damages to fish);
381. State v. M/V Tamano, 357 F. Supp. 1097 (D. Me. 1973) (damages for harm to coastal waters and marine life caused by oil spill);
382. Romualdo P. Eclavea, Annotation, States Standing to Sue on Behalf of Citizens, 42 A.L.R. FED. 23, § 6 (1979) (collecting authorities);
383. see also Feather River Lumber Co. v. United States,30 F.2d 642, 644 (9th Cir. 1929) (cost of replanting recoverable from negligent starter of fire that destroyed young growth in public forest);
384. Spokane Int'l Ry. Co. v. United States, 72 F.2d 440, 443 (9th Cir. 1934).
385. See, e.g., State ex rel. leyoubv. Bordens, Inc., 684 So. 2d 1024, 1026 (La. Ct. App. 1996)
386. (citing Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982)), writ denied, 690 So. 2d 42 (La. 1997).
387. 458 U.S. at 600.
388. Id. at 597.
389. Id. at 598.
390. Id. at 601.
391. Id.
392. The Supreme Court recognized a second sovereign interest of less relevance here-the demand for recognition from other sovereigns, which usually involves the maintenance and recognition of borders.
393. 458 U.S. at 601-02.
394. Id. at 602.
395. Id.
396. Id.
397. 176 U.S. 1 (1900).
398. Id. at 19.
399. Missouri v. Illinois, 180 U.S. 208 (1901).
400. North Dakota v. Minnesota, 263 U.S. 365 (1923).
401. New York v. New Jersey, 256 U.S. 296 (1921).
402. Wyoming v. Colorado, 259 U.S. 419 (1922);
403. Kansas v. Colorado, 206 U.S. 46 (1907);
404. Kansas v. Colorado, 185 U.S. 125 (1902).
405. Georgia v. Tenn. Copper Co., 206 U.S. 230 (1907).
406. 180 U.S. 208 (1901).
407. Id. at 241.
408. 206 U.S. 230 (1907).
409. Id. at 237.
410. Alfred L. Snapp& Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982), writ denied, 690 So. 2d 42 (La. 1997).
411. Id. at 605.
412. 262 U.S. 553 (1923).
413. Id. at 592.
414. 324 U.S. 439 (1945).
415. Id. at 443.
416. Id. at 450.
417. Id. at 451.
418. State v. Am. Tobacco Co., 14 F. Supp. 2d 956 (E.D. Tex. 1997).
419. Id. at 962.
420. Id.
421. Id.
422. Id.
423. Id. at 962-63 (citations omitted).
424. Id. at 962.
425. Georgia v. Tenn. Copper Co., 206 U.S. 230, 237 (1907).
426. Id. at 238-39.
427. Id.
428. Id.
429. Id.
430. 304 U.S. 387, 396 (1938).
431. Tenn. Copper Co., 206 U.S. at 237.
432. 357 F. Supp. 1097 (S.D. Me. 1973).
433. Id. at 1098-99.
434. Id. at 1099.
435. Id. at 1100-01.
436. Id. at 1101;
437. see also In re Oswego Barge Corp., 439 F. Supp. 312, 322 (N.D.N.Y. 1977) (upholding New York's claim as parens patriae to recover costs of cleaning oil spilled in the St. Lawrence Waterway).
438. 308 A.2d 671 (N.J. Super. Ct. 1973), aff'd, 336 A.2d 750 (N.J. Super. Ct. 1975), rev'd on other grounds, 351 A.2d 337 (N.J. 1976).
439. Jersey Central Power and Light Co., 336 A.2d at 752-53, 759.
440. Id at 758-59.
441. Id. at 759.
442. Id.
443. Id. at 758.
444. Id. at 758-59.
445. Id. at 750;
446. Maine v. M/V Tamano, 357 F. Supp. 1097 (S.D. Me. 1973);
447. Md. Dep't of Natural Res. v. Amerada Hess Corp., 350 F. Supp. 1060 (D. Md. 1972).
448. Missouri v. Illinois, 180 U.S. 208 (1901);
449. New York v. New Jersey, 256 U.S. 296 (1921).
450. Kansas v. Colorado, 206 U.S. 46 (1907).
451. North Dakota v. Minnesota, 263 U.S. 365 (1923).
452. Nebraska v. Cent. Interstate Low-Level Radioactive Waste Comm'n, 834 F. Supp. 1205, 1210-11 (D. Neb. 1993), aff'd, 26 F.3d 77 (8th Cir. 1994).
453. People v. Mid Hudson Med. Group, P.C., 877 F. Supp. 143 (S.D.N.Y. 1995).
454. Alaska v. First Nat'l Bank of Anchorage, 660 P.2d 406, 421 (Alaska 1982) (collecting cases).
455. Pennsylvania v. West Virginia, 262 U.S. 553 (1923).
456. 417 N.W. 2d 102 (Minn. Ct. App. 1987).
457. Id. at 112 (citations omitted).
458. 568 F. Supp. 556 (D. Minn. 1983).
459. Ri-Mel, Inc., 417 N.W. 2d at 112.
460. Id.
461. 271 Cal. Rptr. 596 (Cal. Ct. App. 1990).
462. Id. at 605.
463. Id.
464. See Hawaii v. Standard Oil Co. of Cal., 405 U.S. 251, 259 (1972) (holding that the claim cannot be resolved simply by reference to the general principle of parens patriae; in jury must be compensable under statute).
465. See Georgia v. Tenn. Copper Co., 206 U.S. 230 (1907) (enjoining copper companies from discharging noxious gas on nuisance theory);
466. see also Missouri v. Illinois, 180 U.S. 208 (1901) (granting Missouri standing to sue Illinois under nuisance theory for sewage discharges into the Mississippi River);
467. In re Oswego Barge Corp., 439 F. Supp. 312(N.D.N.Y. 1977) (granting New York standing to recover oil spill cleanup costs as parens patriae under nuisance theory).
468. See Tenn. Copper Co., 206 U.S. at 230.
469. Elizabeth C. McNichol, Ctr. on Budget & Policy Priorities, Using Income Taxes to Address State Budget Shortfalls (2003), at http://www.cbpp.org/2-11-03sfp.pdf.
470. See THOMAS F. BURKE, LAWYERS, LAWSUITS, AND LEGAL RIGHTS 179 (1st ed. 2002).
471. See, e.g., Jenny Hunsperger, State Budget Crisis Hinders Dam Safety, HATTIESBURG AMERICAN, Dec. 29, 2004.
472. See Laura Kujawski, Federal Budget Situation Worsens, State to Carry Burden, PNN Online News Network, Jan. 4, 2005, available at http://pnnonline.org/article.php?sid=5668.
473. Id.
474. Id.
475. See Philip Dawdy, Election 2004: On the Tree Stump, SEATTLE WEEKLY, Oct. 24, 2004 at 18.