House Bill 68 and the Public Trust Doctrine | USAC overview 2013
The federal public trust doctrine – whose roots can be traced back to Roman law – essentially provides that navigable waters and their beds are to be preserved to the general public for uses such as commerce, navigation, and fishing. Variations of the doctrine have been applied in state courts to ensure that state public trust resource decisions are for the principle benefit of the trust resource and the public.
Under HB68 (McIff)
- the state’s public trust duties would be limited to the public resources and duties defined by (a) federal law applicable to beds of navigable waters, (b) the Utah Constitution, incl. art. 20’s sovereign, SITLA and other state trust lands, (c) sovereign lands as defined by Utah Code 65A-1-1(5), and (d) public waters as described in Utah Code Ann. 73-1-1
- the state would fulfill its limited public trust duties via legislation regulating trust lands and public waters
- a water right – that is, a right to use public waters for a beneficial purpose as established by diligence (prestatehood) or pursuant to statute (post-statehood) – is given constitutional ’private property’ property status
- the state could not, in fulfilling its public trust duties, take or damage private property or reduce the quantity of a vested water right without just compensation.
While Rep. McIff states that HB68 is merely a compilation of existing Utah law and is otherwise defensible in court, he said the same thing about HB141. At least one Utah judge has disagreed with him on HB141 and, in the process, prompted Rep. McIff to run HB68 in the first place. In reality, HB68 is likely to be challenged and limited in its impact in one or both of the Utah Stream Access Coalition’s stream access cases and in other cases as well.
HB68’s potential impact on stream access:
- Public waters and the public’s right to use public waters in place may both be public trust resources.
- The state’s trust duties regarding public waters and the public’s right to use public waters in place, as well as other trust resources, may require nothing more of the state than retaining title to and ultimate control of the trust resource – that is, in the stream access context, public waters and the public’s right to use those waters in place.
- Stated otherwise, the state, in regulating the public’s right to use public waters in place, may not be required to do so for the principle benefit of the public, the trust beneficiaries (e.g., to protect the resource against overuse) or to fulfill some greater public purpose.
- Instead, HB68 may authorize the state to do as it will with regard to public waters and the public’s right to use public waters in place – for example, to wholly privatize the use of a public water with little or no public benefit – so long as the state retained title to and control of the water and the public’s right to use it place.
- Finally, in declaring that by simply legislating with regard to a trust resource the state fulfills its trust obligations, HB68 ostensibly limits the public’s ability to challenge public trust resource decisions when, in fact, it will likely invite those challenges and judicial review of those decisions.
In sum, because HB68 seeks to limit public court challenges to public trust decisions and could and likely would be interpreted by some as authorizing the legislature to do with regard to all trust resources what it did to stream access rights in HB141, it is quite likely to foster more litigation. Further, while HB68 is unlikely to derail the Coalition’s two stream access lawsuits, it will if anything present additional challenges in those cases and to the Coalition’s fight to restore and preserve the public’s right to use its public waters in place.
