Public Trust Doctrine and Confronting Elected and Appointed Officials

What is The Public Trust Doctrine?

The Public Trust Doctrine is the citizen’s sword and shield. It is a judicial remedy for calling public officials to account for their conduct.

In Wisconsin, it applies most frequently to water. In North Dakota it applies to water, renewable resources of the state and, I argue, it also applies historic values.

Where is it from?

The public trust doctrine is a judicially fashioned remedy for abuse of power by elected and appointed officials. Historically, it was the gift of Emperor Justinian to the people of the Christian World. Justinian ruled in Constantinople. He presided over the Empire before it split the East and West sections.

He directed legal scholars of his era to codify decisions of Romans law judges.  The simplicity of the principles state that air, water, access to rivers and roads, and access to historic sites were property rights to be guaranteed even to those who had been conquered by Roman armies. With that came the right to use the fruits the conquered lands. That judicial protection assured the conquered people that their endeavors to provide for themselves and do business were not going to be dishonored by the Roman conquerors. The right to use the fruits of the soil is called “usufructs.”

The word contains two parts “use and fruits.” The advantage to Rome was provision of a predictable and honorable judicial system that probably prevented guerrilla warfare and discouraged rebellion.

As Americans, we live in a legal system which has blended Roman, Anglo and American legal traditions. The Anglo connection is shown a mural in the Wisconsin Supreme Court chamber. It discloses King John of England about to sign the Magna Carta or the Great Charter of Rights. He did so under threat of death. The Magna Carta presents a list of his wrongs and requires him to acknowledge his wrongs or face an overwhelming force of bishops and armed knights.

For our purposes, the most important section of the Magna Carta had to do with the Forest Laws which provided a means of assuring the various classes of English citizens protection of their rights to use the fruits of the land. The King had replanted forests which had been cleared by English peasants. They used those lands as commons to graze their sheep and used the forest to gather fuel to heat their homes. King John’s sin was to invite his French cousins to romp around England hunting and raping.

He had actually replanted forests to enhance habitats for his quarry. The Forest Laws required him to deforest the land and set up a series of courts to protect the rights of use of Englishmen. The same farmer/rancher suspicious of preservationists and wildlife promoters is evident in North Dakota today. Even the Farmers Union opposes funding of conservation measures which might buy up farm and ranch land and set it aside for wildlife and recreational use.

How does it apply?

In North Dakota today, the issue of preeminent concern is water. Water is, by statute and judicial decision, property held in common for the citizens of the state of North Dakota.

In North Dakota millions of gallons of water are used in the Bakken fracking process. The North Dakota Water Conservation Commission issues permits for withdrawing water from ponds, rivers, and wells. The permit holders do not pay for the water they pump.

These permit holders are allowed to charge fees for the water they pump. We will call these loading fees. The water appropriator does not own the water but merely has a right to devote the water to a permitted use either his own as an irrigator or industrial user or for the very unique use of fracking.

How do we distinguish between use of water for irrigation, watering livestock, and use in industrial purposes such as cooling towers at electric utilities from uses in the Bakken which transform the freshwater into brine?

We look at the hydrologic cycle. Irrigation, watering livestock, and water used in industrial purposes such as cooling towers at electric utilities all return the water to the hydrologic cycle as runoff or vapor. This is perhaps the first time in the history of North Dakota that any or at least significant quantities of fresh water are so transformed that return of those waters to the hydrologic cycle is prohibited. The brine switch called fracture return flows are so toxic that they must be disposed of in deep wells. The water must be pumped into the salt zone and separated from the freshwater zones. We call that use “consumptive.”

Water is trust property.  Recently, the North Dakota legislature has refused to impose a per gallon charge upon the oil industry which has by use of freshwater transformed into brine water enabled our state to become either the second or perhaps soon to be the first most productive oil-producing state in America. All this economic activity requires consumptive use of water which is entrusted to the legislators care for the benefit of the citizens of North Dakota. Under North Dakota statutes, rules, and administrative practice there is no commensurate exchange of value for the water utilized by the oil industry. This is the case even though the water is consumed in the fracking process rather than being return to the hydrologic system as is the case in irrigation, watering livestock, and water used in conventional industrial purposes such as cooling towers.

Who may confront an elected or public official?

In Trust Law, a beneficial owner of a property held in trust may confront the trustee for breach of duties. This suggests that any citizen may challenge the elected and appointed officials and present a charge to the court that a breach of trust duties has occurred. Likewise, associations of farmers, ranchers and citizens who are interested in accountability or concerned about the consumptive use of a scarce commodity have the right to sue. The right to sue is called standing.