Using the Public Trust Doctrine to Impose Non-discretionary Duties on Government Officials

In an effort to protect the redwood forests in California from encroaching lumbering interests, Congress in 1968 passed a bill establishing the Redwood National Park in Del Norte and Humboldt Counties. The purpose of the Act was "to preserve significant examples of the primeval coastal redwood (Sequoia sempervirens) forests and the streams and seashores with which they are associated for purposes of public inspiration, enjoyment, and scientific study…."¹ The bill establishing the park provided for the initial boundaries and also authorized the Secretary of the Interior to acquire additional lands to a maximum of 58,000 acres. The Secretary was given a number of other powers regarding the park, including authorization to acquire interests in land on the periphery of the park and along waterways leading into it as might be necessary to prevent timber harvesting and other activities which, although outside the park itself, could have deleterious effects on the publicly owned land. Such acquired interests were designed to include both management easements and outright ownership, but the latter was only to be used when the former proved to be excessively expensive.

On January 8, 1973, the Sierra Club, aware that logging in the hills adjacent to the park was having exactly the harmful effects which Congress had feared, filed a complaint against the Department of the Interior in an effort to force the agency to take whatever action might be necessary to end such activities. To meet the standing requirements, the Sierra Club asserted that timber harvesting of privately owned slopes overlooking Redwood Creek had seriously impaired visitors', including Club members', aesthetic enjoyment of the parkland. The complaint charged that the trees in the park were in serious danger as a result of the logger's actions. Owing to the steepness of the hillsides, the complaint stated, the usual practice of loggers in the area surrounding the park was first to fell all "whitewoods" e.g. Douglas fir, western hemlock, Sitka spruce, and white fir — and then, after cutting them into logs, to haul them in bulldozers to waiting trucks. Again due to the steepness of the slopes, the bulldozer driver must lower the bulldozer blade into the ground ahead of him to slow his descent and prevent his machine from hurtling down the slope. In the process, a swath is gouged out of the soil. Later, bulldozers prepare strips of broken ground, up to twenty feet wide and three hundred feet long, to cushion the redwoods as they are felled. Again, the downed trees are cut into logs, the logs [4 ELR 10090] attached to bulldozers, and the blade lowered to serve as a brake. The Club contended that the result is damage to about 80 percent of the surface area being harvested, including cuts as much as twenty to thirty feet deep and equally wide. After the bulldozers leave, rain washes the loosened soil into the streams that feed the Redwood Creek, which dumps the debris in the Park downstream. As the soil is capable of retaining far less moisture after clearcutting, the danger of fire increases, heightened further by the presence of accumulated debris. Finally, the trees within the park, especially those near the boundaries, are threatened by windstorms which can blow unshielded trees to the ground.

The Sierra Club preceded the filing of its suit with a year and a half of urging the Secretary of the Interior to rectify the situation. The only positive response by the Secretary was to ask the loggers involved to cease clearcutting voluntarily. They did not comply with the request. The Secretary alsocommissioned a special Department of the Interior task force to prepare a report on the situation in and around Redwood National Park. The Sierra Club, pursuant to the Freedom of Information Act, requested release of the report by the Secretary; the Secretary neither supplied the report nor explicitly turned down the Club's request, whereupon the Club sued to obtain a copy.

In June of 1973, the Club filed an amended complaint which, in addition to restating its request for the task force report, included a second claim for relief. This second claim forms the issue in Sierra Club v. Dept. of the Interior,² a case which could have far-reaching implications for the field of environmental law. The amended complaint contended that the Department of the Interior has breached its duties of administering the Park, and cited several studies authorized by the government to support its assertion. In November, 1971, for example, the National Park Service reported that unless steps were taken pursuant to the Redwood National Park Act to control clearcutting practices in the area, "Old growth redwood within the park will be subject to windthrow. Steep slopes will erode severely producing jams or slides … (and) water quality of park streams will deteriorate as a result of siltation." The report urged acquisition of management easements in some areas and fee simple title along some of the tributaries of Redwood Creek. A subsequent report, dated February 1973, warned that unless the timber industry changed its practices, "there is nothing to prevent the tributaries in the park from becoming the night-marish tangle of debris and downed trees as were observed along some of the tributaries above the park." That study, done by Dr. Richard Curry of the Interior Department, noted that Tall Trees Grove, site of the world's tallest trees, was among the areas of the park most susceptible to damage from the upstream logging activities.

Given this factual setting, the suit argued that the Park's resources are held in trust by the United States and its officials for the use and enjoyment of the public. Correspondingly, the following fiduciary duties are imposed upon the Department of the Interior and its officers by statute: to use reasonable care to preserve the trust property against harm, waste, or destruction from any source; to take reasonable steps to establish and enforce claims against third persons and to prevent or redress harm to the property by such persons; to administer the trust solely in the interest of its beneficiaries; and to carry out the duties assigned by statute for the protection of the park's lands and resources. The Club alleged that Interior has failed to carry out its fiduciary responsibility to protect the Redwood National Park and that such inaction is an arbitrary and capricious abuse of discretion. The complaint went on to state the contention around which the case hinges: "Defendants have no power, authority, or discretion under any statute to refuse to protect the Park's lands and resources or to permit the waste, damage, and ultimate destruction of the Park…. Defendants have specifically violated their non-discretionary duty under said Redwood National Park Act …" The Club, however, did not address the issue of whether the authority held by the agency is wholly non-discretionary or rather discretionary in general but not in this particular case becausethe lands involved are within the public trust.

The Department of the Interior responded to the complaint with a motion to dismiss contending that even if the factual allegations made by the Club were true, the defendants were under no obligation, statutory or otherwise, to act. Rather, they claimed, the authority which they possess is discretionary both in general and in this particular case, and a court may not order its exercise. To support their claim that the Secretary's authority is discretionary and subject only to congressional review, the defendants cited the facts that the Secretary may not take action until he submits a report to Congress and that no time limitations are imposed, in addition to their contention that the language implies that the Secretary should take such action only as he sees fit.

The court, in holding for the Sierra Club, fails to explain clearly the legal basis of its decision, and wavers between terming the authority vested in the Secretary discretionary or non-discretionary. Actually, the court holds that the question of what action to take under the Act is at the discretion of the Secretary, but that the Secretary's failure to exercise his authority to protect a threatened park in this case constitutes an abuse of that discretion. The statute's grant of discretionary authority to the Secretary, the court rules, is qualified by a non-statutory but judicially enforceable "permanent legal duty" imposed by the public trust doctrine.

Using the public trust doctrine in this manner is not entirely without precedent. Basically, the doctrine stipulates that certain lands are owned by the sovereign and held in trust for the public's use and enjoyment. Its main historical application has been in regard to beach areas, as in [4 ELR 10091] Borough of Neptune City v. Borough of Avon-By-The-Sea,³ but it has other applications as well. The most important feature of the public trust doctrine is inalienability; lands held in this manner may not be alienated by the sovereign to a private party except where such action is shown to be in the public's interest. Underneath this principle lies the concept that certain interests (especially natural wonders) are so important to every citizen that each person has a right to have the sovereign maintain and protect that interest for the public.⁴ The conceptual problem in Sierra Club v. Dept. of the Interior is that no alienation of land held in the public trust has occurred; in fact no positive action has been taken by the government to jeopardize the public land. Rather, the Sierra Club was attempting to use the doctrine to create a fiduciary duty of due care and to impose that duty upon the Department of the Interior. In this sense, the suit is analogous to a corporate derivative suit in which the plaintiff, as a member of the larger group holding an interest in the activities of the corporation, sues the directors in the right of the corporation for breach of fiduciary duty. Here, the duty involved is maintenance and protection of the Redwood National Park, which is held in the public trust for the public benefit. Correspondingly, the government contended that it has a wide flexibility to exercise its "business judgment" in the absence of an explicit statutory command forcing such action.

In Citizens to Preserve Overton Park, Inc. v. Volpe,⁵ the Secretary of Transportation's approval of an interstate highway through Overton Park was brought under judicial review in light of statutory prohibitions against routing a highway through a park except where viable alternatives are unavailable. The Supreme Court held that according to § 706 of the Administrative Procedure Act, a reviewing court must determine whether an administrative agency's action was arbitrary, capricious, an abuse of discretion, not in accordance with the law, or not consistent with procedural and constitutional requirements. The Court went on to hold that agency action is only considered discretionary and beyond the scope of judicial review in the narrowest of cases, where Congress explicitly so provides.

In Rockridge v. Lincoln,⁶ the Ninth Circuit Court of Appeals applied Overton Park in a case involving agency inaction where plaintiffs had demanded action to protect beneficiaries of a trust relationship. The court held that the failure of the Secretary of the Interior to enforce regulations governing traders doing business with Navajo Indians constituted a violation of the legal guardian-ward trust relationship between the Department of the Interior and the Tribe, as well as a breach of a fiduciary duty imposed under that trust relationship. As in Sierra Club v. Dept. of the Interior, the statute which authorized the Secretary to act was stated in discretionary terms, but the court, by establishing a trust relationship between the parties, asserted that there was "no valid distinction between the public official who has a statutory duty to act and does not and one who has a duty not to act and does."

The court in Sierra Club v. Dept. of the Interior draws an analogy between the trust relationships involved in Rockridge and in the Redwood National Park, and in so doing takes the concept of judicial review of government activity another step. The major difference which the court bridges, and one that is important to those involved with environmental law, is that in the latter case, the trust relationship is not between a class of persons and the agency but rather between the public and the government. Taking this to its logical end point means that any organization with standing to sue is entitled to judicial review of agency activities in a case where government action of inaction is having a detrimental effect upon lands held in the public trust. Admittedly, the public trust doctrine is only applicable in cases involving land specifically held in trust by the government and cannot be used to impose fiduciary duties upon government officials regarding other rights. Yet to assert that government officials must not only refrain from violating the law by their actions, but must also make a reasonable effort to use their authority to maximize the protection of public trust lands under penalty of suit for breach of fiduciary duty would seem to expand significantly the scope of environmental protection afforded by the judicial system.

There are two directions in which such an expansion might go. The first involves the conversion of discretionary protective powers held by public lands officials into non-discretionary powers which must be exercised except when injury to the public welfare would result. Rockridge and Sierra Club seem to point definitely in this direction provided that a trust relationship can be established. The major step in this development then would be a case which mandates the use of administrative authority where such power is stated as discretionary and there is no trust relationship. The vague language in Sierra Club, which fails to stipulate clearly that it was the public trust relationship which made the Secretary's use of authority non-discretionary, may make such an expansion into non-trust cases more likely. But even if this jump is not made, the use of the public trust (as opposed to more specific trust relationships such as guardian-ward as used in Rockridge) opens the way for numerous suits to protect public holdings.

This last point receives added importance from the second possible avenue of judicial development. Sierra Club does not directly discuss the ramifications of agency action relevant to lands outside the actual domain of the [4 ELR 10092] public trust because in that case the Secretary was clearly empowered by statute to take action regarding such peripheral lands. But given the fact that lands held in the public trust (parks, beaches, recreation areas, etc.) are in general highly susceptible to environmental destruction caused by actions peripheral to the protected land itself, the assumption that the granting of this power was valid and the holding that the Secretary had a non-discretionary duty to use such authority over peripheral lands suggests the possibility that the public trust doctrine may be used to force regulation of privately-held lands in order to protect publicly-held lands, even though no statute specifically provides for that type of protection. For example, an extension of Sierra Club could mean that the Secretary of the Interior may protect lands held in the public trust from clear and present dangers inflicted from outside sources in the absence of statutory authorization just because of the responsibility imposed upon him as a fiduciary of the public trust, and this power could be construed as non-discretionary.Were this so, then considerable authority to plan and regulate for the public welfare would be imposed upon government officials.

The combination of an expansion of the delegation of non-discretionary, judicially reviewable authority upon government officials along with an expansion of the public trust doctrine to include lands not publicly owned amounts to the imposition of a non-discretionary duty upon officials to take whatever steps are deemed necessary to protect any lands or holdings in which the public has an interest. Clearly, Sierra Club does not so hold, but it does constitute one step in a legal progression which could move to that end.

1. 16 U.S.C. 79a.

2. Sierra Club v. Dept. of the Interior, 4 ELR 20444 (N.D. Cal. May 18, 1974).

3. 2 ELR 20520 (Sup. Ct. N.J. July 25, (1972)).

4. J. Sax, "The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention," 68 Mich. L.Rev. 484 (1970).

5. 1 ELR 20110.

6. 449 F.2d 567.