By Professor Bret Birdsong
The re-emergence of the public trust doctrine has been among the most significant episodes in the coming of age of American environmental and natural resources law over recent decades. Nevada joined this important trend in Lawrence v. Clark County, 254 P.3d 606 (Nev. 2011). The public trust doctrine holds that the public holds inviolable rights in certain natural resources that a sovereign state owning such resources is constrained to act as a trustee for those public rights. In this case, involving the state's attempted sale of lands in the Colorado River valley to Clark County, the Court explicitly adopted the public trust doctrine as the law of Nevada and described how it constrains the state’s disposal of trust resources. The decision, though particular in its factual scope, is a careful, sweeping, and singing recognition of the public's interest in natural resources owned and managed by the state.
A persistent theoretical problem for the public trust doctrine is its source as a principle of law capable of binding state legislatures. If, as is sometimes stated, it is a common law doctrine traceable through the common law courts of England to Roman law, then how can it constrain the power of the legislature, which generally has the authority to amend the common law? The Court explained that Nevada's public trust doctrine finds its source in the Nevada Constitution's gift clause, various Nevada statutes addressing state lands and water resources, and "inherent limitations on the state’s sovereign power."
The precise manner in which the public trust doctrine limits legislative authority has also been problematic for states recognizing the doctrine. Does it prohibit the transfer of public trust resources altogether, or does it protect the public's interest through substantive and procedural limitations on legislative action? Addressing this question directly, the Court explained that Nevada courts must assess the transfer of public trust resources with attention not only to whether the dispensation serves a public purpose and the state receives fair consideration, but also the state's special obligation to maintain trust resources for present and future generations.
