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November 17, 2004

Is Protecting the Oceans a Public Trust?

Fish farming in the coastal waters of the US brings up environmental and commons issues.

JUSTINIAN IS OFTEN CALLED ROME’S LAST GREAT EMPEROR. His 38-year rule in the sixth century restored some of the foundering empire’s cultural and political glory. A mark of his triumph, the stunning Hagia Sofia cathedral that he constructed, still soars in the Istanbul skyline.

But Justinian’s greatest monument was of a different kind: the creation of a unified code of imperial law based on the edicts and unpublished rules of his predecessors. Hoping to clean up a messy legal system, the emperor assigned 10 legal experts to deliver a new code of law. In addition to producing the Codex Justinianus, these experts also compiled a digest of the opinions of earlier Roman legal thinkers. Among them was an idea expressed by the jurist Marcius two centuries earlier:

“By the law of nature these things are common to all mankind: the air, running water, the sea, and consequently the shores of the sea.”

This principle — the public trust doctrine — percolated through centuries of war, successor empires, and eventually the rise of the United States. Succinct but sweeping, the doctrine is one of the longest surviving elements in common law and one of the biggest obstacles faced by the Bush Administration in its plan to promote ocean aquaculture.

The Administration has proposed leasing vast regions of the waters between 3 and 200 miles offshore to industrial fish farmers, who now use freshwater sites and relatively small saltwater farms close to shore. The success of this plan will hinge on the courts’ interpretation of the public trust doctrine, a tool that environmentalists will likely employ to slow offshore fish farming because of its potential ecological harm.

Under the president’s plan, high-tech aquaculturalists in U.S. territory, like those elsewhere, would suspend huge cages in the cool, calm waters deep below waves and surface currents in what oceanographers call the pelagic zone. In this scenario, salmon, cod, amberjack, red snapper, and other fish are raised in the cages and are fed ground fish meal from rafts on the surface. When the fish are grown and ready for market, their cages are raised to the surface for harvest, providing cheap fish for American markets and helping the country reduce the $7 billion deficit created by the fact that more than 75 percent of the seafood eaten in the United States comes from overseas.

Introduced in Norway in the late 1960s, ocean aquaculture has become common in cold-water inlets around the United States, making salmon cheaply available in American restaurants and grocery stores year-round. But environmentalists aren’t happy with such “ocean ranching,” arguing that ocean aquaculture and its “floating pig farms” are already creating serious ecological challenges.

Fish that escape from aquaculture cages pose the most serious risk. In these tightly packed feedlots, they are more likely to pick up diseases or parasites, which they can spread to the open ocean, possibly in virulent forms because of the antibiotics used in the fish pens. Escaped fish also interbreed with wild stock and can compromise the gene pool, eliminating physical traits that help the fish survive in the wild. Environmentalists also believe that relocating fish farms from shorelines to the open ocean would limit public scrutiny.

The National Oceanic and Atmospheric Administration, which is currently drafting a bill for Congress that would allow and regulate this ocean aquaculture, claims to be aware of the hazards of aquaculture and has promised to include environmental impact analysis and regulatory oversight requirements in the proposed legislation.

But if the new law is enacted, opponents will likely challenge it in federal court. There, judges will grapple with questions about environmental harm and the status of territory beyond the three-mile limit of waters clearly earmarked for state governments. The farmers will need the government to grant them strong property rights in those waters before they are willing to invest in the farms. But there is no clear legal basis for granting such rights, said Alison Rieser, a professor at the University of Maine School of Law.

At the heart of the ownership issue lies the public trust doctrine and the question of whether it can continue to do what it has done for 15 centuries: defend the shorelines of Europe and, more recently, North America, as “common to all mankind.” Since the founding of the United States, American coastal waters have been protected by the federal and state governments and left open for navigation, recreation, and the licensed catching of wild fish. What right, plaintiffs trying to slow the projects will ask, does the U.S. government have to lease ocean water to anyone, particularly if doing so could harm fish in the rest of the sea?

SINCE ITS INTRODUCTION BY JUSTINIAN, the public trust doctrine has disappeared and reappeared, depending on political climates and official attitudes toward commonly owned land and resources. It appears in various forms in the legal codes of former Roman and Byzantine provinces, including Gaul, which was becoming France. By the 11th century, the French kingdom had a trust law: “The public highways and byways, running water and springs, meadows, pastures, forests, heaths and rocks . . . are not to be held by lords, . . . nor are they to be maintained . . . in any other way than that their people may always be able to use them.”

When England built its colonial empire in North America, this doctrine was adopted as an element of common law, and French and Spanish colonies often relied on similar legal principles. It was accepted by the 13 original American colonies without argument, and passed to all states that subsequently joined the colonies under the equal footing provision, which said that all new states entered the Union on the same terms as the original states. In the United States, as elsewhere, it became a matter of accepted usage, articulated in court judgments.

In early American history, the doctrine was used almost exclusively to protect the public’s interest in water. Shorelines, beaches, river bottoms, and navigable water — whether in the sea or flowing to it — were the common property of the nation’s citizens. State courts ruled that this water was owned by everyone and no one at once, and that the government, as the water’s steward, gave every citizen an unwritten easement to it. In the years that followed, American courts — state and federal — upheld that interpretation.

In the 1892 landmark case of Illinois Central Railroad v. Illinois, the Supreme Court held that a state legislature could not grant ownership of land under navigable water to a private party. In 1869, the Illinois legislature had granted the railroad more than a thousand acres of shoreline and underwater land — nearly the entire Chicago waterfront. Four years later, the legislature passed a law repealing the grant. The court ruled the original grant invalid, saying that the state’s “abdication” of control over the underwater land was inconsistent with its responsibility “to preserve such waters for the use of the public.”

State courts since have repeatedly supported the public trust doctrine, particularly as it applies to water. In 1972, for example, in a case involving the question of whether a developer could fill in property alongside a river, a New York district court cited both the doctrine and its roots: “The control and regulation of navigable waters and tideways was a matter of deep concern to sovereign governments dating back to the Romans. . . . The entire ecological system supporting the waterways is an integral part of them (the waterways) and must necessarily be included within the purview of the trust.” In 1983, the California Supreme Court ruled that “the state has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible.”

More important, as the environmental movement gained steam a generation ago, several states wrote the ancient code directly into their constitutions in various forms. In Louisiana, for example, a 1974 amendment declares:

“The natural resources of the state, including air and water, and the healthful, scenic, historic, and aesthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people.”

THE OPEN OCEAN DOESN’T NEED PROTECTION by the public trust doctrine because it has long been considered open to all travelers and fishermen, and because it is protected by a series of international agreements. But there is a long ribbon of ocean water, 200 miles wide, hugging the coast of every continent, for which ownership rights and stewardship responsibility are unclear. It is in the outermost 188 miles of that ribbon off America’s coasts where the Bush Administration would like farmers to raise their cod and snapper, and that’s where the ancient doctrine might be the public’s best defense against the environmental damage that fish farming could bring about.

The Law of the Sea Treaty was drafted between 1973 and 1982, and it has now been signed and ratified by 145 nations. It extends the sovereign rights of all signatory nations to 200 nautical miles from their shorelines and over the enormous wealth of oil, gas, minerals, and foodstuffs in what are appropriately called Exclusive Economic Zones.

President Bill Clinton signed an amended version of the Law of the Sea Treaty in 1994. But in part out of deference to ocean-mining companies that sought unimpeded access to the entire ocean floor so they could extract minerals in a way that the treaty prohibited, Jesse Helms — the Republican from North Carolina who was then chairman of the Senate Foreign Relations Committee — declined to hold hearings that might have led to the Senate ratifying the treaty.

Last winter, however, the Senate Foreign Relations Committee recommended that the full Senate ratify the treaty. The isolationist Helms was gone, and a consensus had developed around the idea that the treaty would clarify the extent of U.S. ocean jurisdiction and make it easier for the Navy and the Coast Guard to have clear boundaries within which they could patrol.

A handful of conservative Republicans are now working to stop the United States from approving the Law of the Sea Treaty. But even if the Senate doesn’t ratify the treaty immediately, the law that creates the zone will play a major role in the legal battle over ocean fish ranching and will set the de facto borders to which the federal government’s control over the ocean extends. The government has acknowledged the geographic outlines of the zone in numerous reports and studies, and a 1992 Supreme Court decision noted, “The United States has not ratified [the treaty] but has recognized that its baseline provisions reflect customary international law.”

The more complicated question for aquaculture opponents and public trust advocates is one of federalism. The Supreme Court has upheld the public trust doctrine as a state matter numerous times, but it has never claimed it as federal common law, which could apply in ocean waters beyond the three-mile limit of the states. But that doesn’t mean the public trust doctrine is not federal; it just means it has never been established as such. That courts haven’t applied the doctrine doesn’t mean they can’t.

The American legal system was built on British common law, which included the public trust doctrine. The U.S. government thus took on an implied obligation to protect navigable waters in each territory until it was granted statehood. When it entered the Union, each new state assumed its own public trust obligation over its shoreline, and later out to the line three miles off its coast, which a 1953 law later defined as the boundary of state waters. But the federal government also maintained public trust responsibility over waters beyond state control and extending to the boundaries that marked the limits of its territorial waters. A series of international agreements and treaties placed these boundaries 12 miles out and the Law of the Sea Treaty has extended them another 188 miles.

In light of this history, the federal government continues to bear responsibility over navigable territorial waters — and the sea bed below them — between the 3-and 12-mile limits, and now into the Exclusive Economic Zones. Federal courts have indicated that the doctrine doesn’t apply outside “the territorial sea” but they haven’t defined where that ends, and groups will press for waters within the EEZ to be interpreted as “territorial.”

If the doctrine is applied in the EEZ, sea farmers will face the burden of proving to courts that their projects don’t cause so much environmental damage that courts should reject them on public trust grounds. In 1990, this happened as a result of state law in Alaska that banned fish farming. If the doctrine applies, environmentalists and other opponents of privatizing the open ocean will have a tool to block other future projects as well, such as mining or garbage dumping in what they call “the blue frontier.” This may be opposed by the Bush Administration, by Congress, by the farmers, and even by consumers particularly eager for cheap options at the Safeway fish counter. But it would surely be the outcome that Justinian had in mind.

Mark Dowie teaches science at the University of California Graduate School of Journalism. This article originally appeared in the September/October 2004 issue of Legal Affairs.