Sustainably managing marine ecosystems has proved nearly impossible, with few success stories. Ecosystem management failures largely stem from the traditional sector-by-sector, issue-by-issue approach to managing ocean-borne activities—an approach that is fundamentally unable to keep pace with the dynamics of coupled human, ecologi cal and oceanographic systems. In the United States today there are over twenty federal agencies and thirty-five coastal states and territories operating under dozens of statutory authorities shaping coastal and ocean policy. Among marine ecologists and policy experts there is an emerging consensus that a major overhaul in U.S. ocean governance is necessary. This Article suggests that the public trust doctrine—an ancient legal concept that is already incorporated in U.S. state coastal laws—can uniquely provide a unifying concept for U.S. federal ocean governance.
Though the public trust concept can be located in the legal systems of many countries, it robustly manifests in the United States, where it has historically protected the public’s rights to fishing, navigation, and commerce in and over navigable waterways and tidal waters. In its most basic form, the doctrine obliges governments to manage common natural resources, the body of the trust, in the best interest of their citizens, the beneficiaries of the trust. Today the public trust doctrin e is integral to the protection of coastal ecosystems and beach access in many states and has even made its way into state constitutions. It would be simple, and seemingly logical, to assume that the same fiduciary responsibility of states to protect public trust uses of their waters extends to all marine resources within the United States’ 200-mile Exclusive Economic Zone (EEZ). However an artificial line has been drawn around state waters, and the legal authority and responsibility of the U.S. government to protect public trust resources in the vast space of its EEZ (the largest of any country on earth) have never been fully and expressly established. Securing the place of the public trust doctrine in U.S. federal oceans management would be valuable, given the immense pressure to exploit EEZ resources, the failure of the current regulatory approach, improved scientific understanding of the interconnected nature of ocean ecosystems, and the growing demand for sustainable management of ocean resources.
This Article will outline the development of states’ public trust doctrines; discuss the expansion of U.S. sovereignty over its neighboring ocean waters during the twentieth century; analyze possible avenues for expanding the doctrine to federal waters; and consider how a federal public trust doctrine could clarify some specific emerging issues in U.S. oceans management. At the heart of our analysis lie three questions: (1) does a federal public trust doctrine exist; (2) if so, can we rightfully extend it to include the entirety of the U.S. ocean waters; and (3) could the doctrine provide the missing catalyst for federal agencies to manage the use of U.S. ocean resources in a coordinated, sustainable fashion?
Mary Turnipseed et al., The Silver Anniversary of the United States’ Exclusive Economic Zone: Twenty-Five Years of Ocean Use and Abuse, and the Possibility of a Blue Water Public Trust Doctrine, 36 Ecology Law Quarterly 1-70 (2009)
Library of Congress Subject Headings
Ecosystem management, Marine resources, Nature conservation