Marks v. Whitney Expands the Scope of Protection for Lands in the Public Trust

The California Supreme Court has restated and clarified the law concerning the protection of lands subject to the public trust.¹ See Marks v. Whitney, 2 ELR 20049 (Calif. Dec. 9, 1971). For moving papers available from ELI, see ELR Dig. [187]. In Marks, the court explicitly expanded the public trust notion to include the preservation of lands in their natural state. Equally important, the court found that any member of the public has standing to raise the issue of threatened impairment of lands subject to the trust. Indeed, a court may determine the public trust issue on its own motion, whether raised by the parties or not.

The case arose in the context of a private action to quiet title to tidelands belonging to Marks under a patent granted to his predecessor by the State in 1874. His tidelands constituted almost the entire shoreland in front of Whitney's holdings. Marks proposed to fill the tidelands for the purpose of development, reserving only a 7 foot wide easement of passage to the bay for Whitney. The California court found that the 1874 patent had not conveyed an unfettered fee simple interest, but that owners of the land took the tidelands subject to a trust in favor of the public.

The case has extraordinary importance to Californians interest in preserving their coastline.² Tidelands now have double protection. Developers wishing to "improve" their natural land must first overcome the hurdle of People v. White, 1 Civil No. 28156 (Calif. Ct. Ap., 1st Dist. Dec. 2, 1971), which held that there is a presumption against a grant of tidelands which may be overcome only by explicit language in the deed. Moreover, they must argue that if their deed includes tidelands they are not subject to the public trust preventing development. Other lands subject to public trust (such as submerged lands) will have the protection of the Marks case at the minimum.³

Even outside California, the case will be widely quoted for its expansion of the coverage of the public trust doctrine. Traditionally the public trust has been construed to include protection of the public's rights of navigation, commerce and fisheries. The California court brushed aside any such restrictive interpretation of the trust:

The public uses to which tidelands are subject are sufficiently flexible to encompass changing public needs…. There is a growing public recognition that one of the most important public uses of the tidelands — a use encompassed within the tidelands trust — is the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area. 2 ELR 20050.

This broad interpretation of the nature of the trust leaves the owner of lands with little more than a primary right to the fee simple if the public trust should be removed in the future. While his lands are subject to the trust, however, he must permit members of the public to enjoy the land for the protected uses.

Removal of the land from the public trust may be accomplished by the legislature. In the ordinary case, a legislative finding that particular property ought to be released from the public trust is sufficient to protect such a transfer.⁴ Thus, any protected area remains potentially subject to a politically popular scheme or to a development desired by a group skillful at dealing with the legislature. In New Jersey Sports & Exposition Authority v. McCrane, 2 ELR 20052 (Superior Ct. Bergen Cty., N.J. Nov. 15, 1971), for example, a plan to build a massive sports and horse racing complex on the Hackensack Meadowland (concededly an area subject to the public trust) was upheld by the court on the ground that the legislature had expressly found that the project was for the public benefit. The legislative determination alone was sufficient to shield the plan.⁵ Nonetheless, while environmental concerns remain visible and politically popular, the necessity for legislative action gives opponents of developments on land subject to the trust a public forum in which to [2 ELR 10008] argue their case.

At the moment, then, the public trust doctrine will be a valuable aid for preventing low-visibility nibbling away at protected areas by small developments; it offers little protection to schemes large enough or with sufficient local favor to obtain legislative sanction. Only constitutional action will protect such areas.⁶

1. Any study of the public trust doctrine must begin with a close reading of the leading article in the field, Sax, "The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention," 68 Mich.L.Rev. 471 (1970).

2. It has been estimated that between 1940 and 1966 California lost 67% of its remaining estuary acreage. See 113 Cong. Rec. 16706 (1967) (speech by Rep. T. Kupferman) cited in Earnhardt, Defining Navigable Waters and the Application of the Public-Trust Doctrine in North Carolina" 49 N.C.L.Rev. 888 (1971).

3. The court in Marks made it clear that its holding applied to the entire coast of California. An intervenor, Westbay Community Associates, specifically asked the court to limit its holding to Tomales Bay, but the opinion contains no such limitation. See 2 ELR 20050, ftn. 3.

4. In Illinois Central Railroad Company v. Illinois, 146 U.S. 387 (1892), the state granted an entire waterfront area in a wholesale transfer. That flagrant excess of generosity was not protected by the legislative action.

5. Marks v. Whitney also recognizes this rule, stating, "It is a political question, within the wisdom and power of the Legislature, acting within the scope of its duties as trustee, to determine whether public trust uses should be modified or extinguished (see City of Long Beach v. Mansell [3 Cal. 3d 462 (1970) at pg. 482, ftn. 17]), and to take the necessary steps to free them from such burden." 2 ELR 20051.

6. See, e.g., the "Forever Wild" provision of the Constitution of the State of New York, Article XIV.