The South Fork of the Walla Walla River and the Public Trust Doctrine Legal Tools for Promoting Environmental Justice

The South Fork of the Walla Walla River and the Public Trust Doctrine: Legal Tools for Promoting Environmental Justice A thesis submitted in partial fulfillment of the requirements for graduation with Honors in Politics-Environmental Studies. 2021 ________________________ ii Table of Contents Acknowledgements ........................................................................................................................................iv List of Figures ................................................................................................................................................. v I. Introduction ......................................................................................................................................... 1 II. Fee Simple Property and ‘Slow Violence’ ......................................................................................... 7 John Locke and the Hegemony of Fee Simple Property ............................................................................. 7 Slow Violence: Settler-Colonialism and the Eradication of Indigenous Peoples’ Natural Resource Holdings .................................................................................................................................................... 10 III. The Foundation and Evolution of the Public Trust Doctrine........................................................ 14 Early American Public Trust Law ............................................................................................................. 15 Joseph Sax and the Public Trust Doctrine ................................................................................................. 17 The Mono Lake Case ................................................................................................................................. 19 IV. Valuable Legal Tools Gained from the Public Trust Doctrine ..................................................... 24 Governmental Obligation to Protect Natural Resources Held in Public Trust .......................................... 24 Nuisance Law and the Public Trust ........................................................................................................... 28 Externalities of Fee Simple Ownership ..................................................................................................... 30 V. Conclusion: A Return to the South Fork of the Walla Walla River ............................................. 34 Bibliography ................................................................................................................................................. 38 iii Acknowledgements Thanks to my family for encouraging me to take my own path, explore, and be curious. Thank you Clouds for your constant support and to all my friends and housemates for offering mutual encouragement. iv List of Figures Figure 1: South Fork of the Walla Walla River Drainage and Approximate Road, August 2020 ……………………………………………………………………………………… 3 v I. Introduction My shoulders ached, the right sagging under the weight of a chainsaw as sweat dripped into my eyes from under my yellow hard hat. I was hiking up the South Fork of the Walla Walla River canyon with two other members of the Umatilla National Forest trail crew clearing fallen trees and rerouting the trail away from flood damaged areas. At least that’s what our typical day looked like, but this morning we had been beaten to the task. Our mandate was to maintain a trail corridor just wide enough for an ATV to pass, although the trail was primarily used by hikers, horseback riders, and mountain bikers. What we found up the canyon on that dry August morning was much different from our prescribed work: a newly established ten-foot-wide corridor open enough to accommodate a pickup truck. Sawdust lined the edges of the new road where green trees had been cut back and the gray gravel underfoot had been freshly packed by the tracks of a bulldozer. While it’s not uncommon for trees to be cut unpermitted out in the unsupervised backwoods of the National Forest, an entire unauthorized road construction project is entirely unheard of. Without speaking, we each put the pieces together of who might have been responsible. A group of landowners who own parcels of a small inholding along the Umatilla National Forest a few miles up the South Fork Walla Walla river drainage (SFWW) have been pushing for many years to expand access to their property upstream. While an old Boise Cascade logging road meandered up the valley bottom crossing the river twelve times, access was limited to this road after designation of the Bureau of Land Management (BLM) parcel as an Area of Critical Environmental Concern in 1992. The designation was corroborated following the Endangered Species Act listing of bull trout in 1998 and Mid-Columbia steelhead in 1999, both of which rely on the prime spawning habitat to be found in the cool spring water and basalt gravels of the South Fork Walla Walla river.1 The landowners wanted to expand and improve the road with heavy machinery and have access to their property for a six-month period of time in late summer through fall. Given the cultural reliance of the people of the Confederated Tribes of the Umatilla Indian Reservation (CTUIR) on anadromous and resident fish population as food source, the tribal group took a stake in maintaining the South Fork as unmolested as possible by vehicle disturbance: “In 2004, the [CTUIR] informed the BLM that they had initiated a program to restock the SFWW River with spring Chinook salmon, and expressed concern that this [proposed action] would be detrimental to their four-year old replanting program in the SFWW.” 2 The BLM, who administers the land, and the Forest Service who hold an easement for the trails investigated the possibility of road improvements for landowners and increased access balanced with concerns of the CTUIR in a 2005 Environmental Assessment as mandated by the National Environmental Policy Act.3 Ultimately, the Environmental Assessment issued a Finding of No Significant Impact for the no-action alternative which allowed for the 6-week window of road access from July 1 - August 15 to continue and that landowners were “... not allowed to maintain the road or use heavy machinery in the river.” 4 This short window has been renewed annually through the summer of 2020, when catastrophic floods destroyed much of the 1 Bureau of Land Management, Vale District. “South Fork Walla Walla Landowner Access Environmental Assessment (EA) # OR-035-06-03,” 2005, 5. 2 Ibid. 3 Ibid., 4. 4 Ibid. 2 Forest Service trail network in the SFWW river drainage, along with the unmaintained remnants of the old Boise Cascade road.5 After decades of unsuccessfully attempting to improve the old road and expand their time access window, upstream landowners may have seen an opportunity to illicitly expand access independent of the mechanisms of government by simply renting a bulldozer and spending a weekend pushing debris into the river channel. Figure 1: South Fork Walla Walla River Drainage and Approximate Road, August 2020 6 While the road-building perpetrators remain unproven, this specific instance of resource degradation is unlikely to be attributed to anyone but the upstream landholders loosely citing ‘property access rights’ as reasoning for such an invasive construction action. It will take many years and perhaps decades for any backlash to meet the 5 “Order No. 06-14-06-20-31 Trail Closure Umatilla National Forest.” USDA Forest Service, August 20, 2020, 4. 6 Created by George Jutras using CalTopo software. Not an official publication as none exists. Depicts approximations of features only. 3 landowners given the overlapping jurisdictions of the BLM and Forest Service, the understaffed BLM office in Baker City, and the unclear regulations and restrictions that may or may not have been violated by the landowner’s action. As there is no clear legal recourse, the CTUIR will once again bear the burden of resource exploitation in the Walla Walla Valley that further endangers anadromous and resident fish spawning habitat. I personally witnessed a continuation of settler-colonialism in the Walla Walla Valley, where non-native private property owners continued to inflict unjust natural resource degradation on the local indigenous peoples as represented by the CTUIR.7 I ask, how can an unjust action that is complicated by the involvement of several parties, law structures, and overlapping property rights ever be untangled? How do the roles of fee simple property ownership, an environmental interpretation of the public trust doctrine, and federal Native American law interact with one another both in the context of the SFWW river drainage and the broader American landscape? The public trust doctrine (PTD) is a foundational principle of environmental law that demonstrates a right of public access to natural resources held in trust by a government against private exploitation. I argue (1) that the public trust doctrine, as it has evolved since its formal inception in the late 19th century, has developed three key legal tools that will allow it to be expanded into a wider scope beyond navigation and 7 ‘Natural resource’: while typically used to describe resources with intrinsic economic value such as oil, coal, gold, timber, or other similar entities, I use the term in an attempt to uncouple it from its colloquial use by re-broadening the term to reflect any aspect of the natural world which a human may value for any reason, whether economic, subsistence, aesthetic, spiritual, or otherwise. ‘Indian,’ ‘Native American,’ and ‘Indigenous’: While some may use these terms interchangeably, I use these terms based on how they are found most commonly in publications. I avoid using the term ‘Indian’ as it is not an accurate identifier for peoples inhabiting the American continent before European arrival. I use ‘Native American’ and ‘Indigenous’ more interchangeably, although ‘Native American’ appears more commonly in legal contexts and ‘Indigenous’ typically appears in more anthropological contexts. 4 ecological conservation and into environmental justice applications: the governmental obligation to hold public easements to natural resources in trust, a widespread legal basis of nuisance law that can be broadly applied to many cases argued in the vein of the public trust doctrine, and the use of the PTD as a mechanism for internalizing market externalities; and (2), that Indigenous legal activists could use the PTD as a mechanism of social and environmental justice, working within a white euro-American legal system to potentially acknowledge some of the land and resource debasement of Indigenous peoples that have been aided by the legal system itself. While there are an unquantified number of injustices that have occurred to Indigenous peoples across the Americas through a variety of both individual and structural mechanisms, in this paper I primarily focus on the concept of the public trust doctrine as it relates to natural resource access and tools which the doctrine provides. I argue that the public trust doctrine is an applicable and available tool for Indigenous legal activists to use to seek environmental justice, not that it is meant to be carried out by white environmentalists wishing to fulfill a savior complex. Environmental justice violations are not fixed by a single action, policy change, or court case, but rather must be chipped away at slowly, with hard-fought legal battles and laws slowly encouraging societal progress. The goal of environmental justice efforts is therefore greater than many recognize: the goal must be to not only achieve equitable distribution of natural resource access, but also equitable access to the political structures which regulate and demarcate natural resource access.8 Ultimately, the public trust doctrine and the tools it represents 8 David Schlosberg, “Reconceiving Environmental Justice: Global Movements and Political Theories” Environmental Politics 13, no. 3 (September 2004), 2. 5 are simply one method of many that may be used by Indigenous people to carry environmental justice efforts forward. In order to understand a potential application of the public trust doctrine to environmental justice issues by Indigenous activists, we must first take a look at the roots of private property law in the United States and concurrent exploitation of Native Americans and their customary natural resources. In order to extract common tools of the PTD, I then take us through the evolution of the public doctrine itself; why the doctrine was founded, common principles and cases such as Illinois Central Railroad Company v. Illinois, and the expanded vision carried to the doctrine in the 1970s and 1980s in the form of the revolutionizing steps taken by Joseph Sax and legal activists in the National Audubon Society v. The Superior Court of Alpine County (Mono Lake) case. We then turn to an evaluation of what I argue are the three major tools that can be drawn from a century and a half of case law before demonstrating a few circumstances in which Indigenous legal activists could potentially utilize these tools in contemporary natural resource issues seeking environmental justice for Native Americans. Lastly, we return once more to the South Fork of the Walla Walla River to consider the public trust doctrine and its key tools in the context of the unlitigated incident in the river drainage in August of 2020. This paper relies on the court opinions from more than a dozen cases to illustrate the evolving nature of the public trust doctrine as it has appeared in US law in the last 150 years. I also rely heavily on analysis in secondary sources from legal thinkers such as Michael Blumm, Mary Wood, and Joseph Sax, the latter figure largely responsible for updating the public trust doctrine in the late 20th century. 6 II. Fee Simple Property and ‘Slow Violence’ John Locke and the Hegemony of Fee Simple Property Since John Locke wrote about the ‘natural right’ of men to own property in the 17th century as a rebuttal to King Charles II’s aggressive land control maneuvers in England, the title to fee simple property has carried a level of authority that did not exist in the manorial system of the Middle Ages. “Private property was a natural right of individuals, Locke proclaimed, arising out of the mists of time. Government was the sworn protector of private property, not its creator.”9 Locke’s argument was born out of a struggle against oppressive land management in England by the Crown, pushing for land ownership as means of opportunity for stability of the English people and a grounding in a subsistence farming economy for the nation. In the United States, key political figures such as Thomas Jefferson and Benjamin Franklin carried this idea of private property ownership as a right into early governmental structures; Jefferson hoping the concept would create economic stability through developing a nation of yeoman farmers.10 Franklin and other thinkers such as English utilitarian philosopher Jeremy Bentham picked up and expanded on the second part of Locke’s statement above: the nature of the relationship between property owners and the government. Locke stated that “Government was the sworn protector of private property, not its creator,” 11 but Bentham completed this line of thinking that although government might not be the 9 Freyfogle, Eric T. The Land We Share: Private Property and the Common Good. Washington, D.C: Island Press, 2003, 4. 10 Ibid., 5. 11 Ibid. 7 creator of private property, “‘Property and law are born together, and die together. Before laws were made there was no property; take away laws and property ceases.’”12 The foundation of American civil government is on this notion that government exists at least in part to protect the natural right of property ownership. As the early American federal government consisted of a democracy of white male landowners, American government also wouldn’t exist without a foundation in property ownership. While this Lockean notion of a natural right to property ownership has become so deeply entrenched in American society that we almost don’t recognize it anymore, it doesn’t mean that some of the logical fallacies that were present in its 17th and 18th century founding aren’t still buried at the core of our private property system. These issues began to present themselves quickly after the establishment of the nation, concurrent with the rapid expansion of land development, industrialization, and population growth through the 19th century. Eric Freyfogle argues that the early disputes between private landowners established what is now known as nuisance law, a corner of legal dispute resolution that addresses issues pertaining to overlapping rights. While there are many cases that involve an element of nuisance law, the fairly recent case Bormann v. Board of Supervisors13 can provide a good example. In this Iowa case the Bormann family neighbored a 960-acre tract of land whose owner wanted to use the land for a Contained Animal Feeding Operation (CAFO). The plaintiffs accused that a CAFO could cause a nuisance by the intrusion of odors, pests, and pollution, and therefore infringed on their right to enjoy their property peacefully. The premise of the defense was that the land was privately owned and therefore the landowners could do 12 13 Freyfogle, The Land We Share, 4. Bormann v. KOSSUTH COUNTY BD. OF SUP'RS, 584 N.W.2d 309 (Iowa 1998). 8 what they wanted with their land, including hold the right to operate a CAFO.14 Ultimately, the Iowa Supreme Court sided in favor of the plaintiffs, demonstrating the Bormann v. Board of Supervisors case as one of the critical limits of the fee simple property scheme: “Landownership includes more than just the right to put land to use; it also includes the indispensable right to complain when other landowners materially interfere with one’s quiet enjoyment. Inevitably, these rights are relative: one owner’s right to use land is tempered by his neighbor’s right to remain undisturbed.”15 Here we arrive at the fallacy of ‘absolute ownership,’ or the idea that one truly owns all rights associated with a property. The nature of the fee simple property system as implemented in the United States fundamentally eliminates ‘absolute ownership’ simply by granting all US citizens the right to own property. With more than one property owner, rights are distributed in an overlapping manner that inevitably creates conflict. Issuance of overlapping rights and the ensuing conflicts have only increased in the United States as subsistence agriculture has developed to industrialized manufacturing and extractive industries through settler-colonial epistemologies of expansion, progress, and modernization. Legal doctrines, such as the public trust doctrine, have then developed to address cases such as Bormann where conflict is not only between multiple private party interests, but between the industriousness of private interests with the public interests of long-term sustainability of natural resources. 14 15 Bormann at 311. Freyfogle, The Land We Share, 17. 9 Slow Violence: Settler-Colonialism and the Eradication of Indigenous Peoples’ Natural Resource Holdings As Lockean property schemes were brought to the Atlantic coast with European settlement to be instituted for the first time on ‘virgin’ lands, these private property norms with all their complications and hypocrisies were imposed on civilizations which already had strong existing land use systems. Over time, Euro-American property law shifted from the enclosure of land and the exclusion of Indigenous people from specific resources in the 17th and 18th centuries to explicit federal laws such as Andrew Jackson’s 1830 Indian Removal Act which forcibly removed entire tribes in a death march from traditional lands. In the context of the collective memory of federal ‘Indian Removal’ policies, Robin Wall Kimmerer writes of the experience of her people, the Citizen Potawatomi: Children, language, lands: almost everything was stripped away, stolen when you weren’t looking because you were trying to stay alive. In the face of such a loss, one thing our people could not surrender was the meaning of land. In the settler mind, land was property, real estate, capital, or natural resources. But to our people, it was everything: identity, the connection to our ancestors, the home of our nonhuman kinfolk, our pharmacy, our library, the source of all that sustained us.16 While Indigenous experience cannot be generalized, all Native American tribes have faced some kind of removal policy or reduction in access to customary lands since settler- 16 Robin Wall Kimmerer, Braiding Sweetgrass: Indigenous Wisdom, Scientific Knowledge and the Teachings of Plants. Minneapolis, Minn: Milkweed Editions, 2013, 17. 10 colonialism has expanded through the North American continent. This context of removal and land enclosure is the foundation on which contemporary land law and politics is constructed on. Traditional access-based use was purposefully and maliciously replaced by a fee simple property structure that inherently disadvantaged the people for whom that system was not developed for. Land exploitation via the new imposed legal system is a prime example of what Rob Nixon calls ‘slow violence:’ “By slow violence I mean a violence that occurs gradually and out of sight, a violence of delayed destruction that is dispersed across time and space, an attritional violence that is typically not viewed as violence at all.” 17 Nixon’s definition of the term ‘slow violence’ pertains to the inherent need for justice efforts to compensate for environmental issues which have caused the prolonged systemic damage to the cultural traditions and current livelihoods of Indigenous peoples. The current fee simple private property scheme in place in the United States is an example of the principle of ‘slow violence,’ where an artificial legal property system was imposed on native peoples which, as Robin Wall Kimmerer wrote, stripped much of the meaning and value from the land. This land grab is then an instance of environmental racism, or “‘racial discrimination in environmental policy making, and the unequal enforcement of environmental regulations and laws.’ The idea that people of color are subjected to environmental discrimination, that they suffer disproportionately from the country’s environmental degradation, has spawned the environmental justice movement.”18 Environmental justice efforts have been raised by tribe members from across the United 17 Rob Nixon, Slow Violence and the Environmentalism of the Poor. Cambridge, Mass: Harvard University Press, 2011, 2. 18 Serena Williams, “The Anticipatory Nuisance Doctrine: One Common Law Theory for Use in Environmental Justice Cases” 1995, 1. 11 States to address a wide spectrum of issues, with property law being only one. Environmental justice efforts are not new either, rather the terminology is only now catching up with actions as early Indigenous activists of access to natural resources were openly persecuted by the federal government. For example, Chief Joseph, leader of the Wallowa band of Nez Perce at the turn of the 20th century, stood up to the US Army and fought back as his band was chased out of the Wallowa Valley by cavalry troops to the Canadian border. After promises of reservation land in Western Idaho were made for the band, Chief Joseph surrendered and his people were betrayed and ultimately settled on the Colville reservation with an amalgam of other unrelated tribes.19 These early environmental justice efforts by tribal members, often in protest of federal treaty violations, are a key part of the foundation and contemporary complexity of Tribal law. Tribal law is fundamentally the relationship between the federal government, state governments, and federally recognized sovereign Native American Tribal nations. While Tribal nations may be regaining some power in recent decades in the “SelfDetermination” era,20 relationships between Tribal nations and the federal government will be forever marred by the foundation of treaty violations and environmental and social injustices. Some injustices, such as land and natural resource use, remain constant. An overriding threat facing native nations today is the deterioration of their land base. The tribal territory forms the geographical limits of the tribe's jurisdiction, supports a residing population, is the basis of a tribal economy, and provides an irreplaceable forum for religious practices and cultural traditions often premised 19 Editors of Encyclopaedia Britannica, "Chief Joseph" Encyclopedia Britannica, September 17, 2020. https://www.britannica.com/biography/Chief-Joseph. 20 Mary Wood, “Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited.” Utah Law Review, 1994, 3. 12 on the sacredness of land… the native land base is imperiled by rapid development, pollution, and loss of resources occurring within and around Indian reservations. 21 The public trust doctrine is complicated considerably by tribal sovereignty law considering the doctrine’s founding in relationships between individual entities rather than sovereign nations. However, as demonstrated in later sections, the PTD retains many broad principles to be applied to natural resource access discussions between Native American Tribes and other entities. 21 Wood, “Indian Land and the Promise of Native Sovereignty,” 3. 13 III. The Foundation and Evolution of the Public Trust Doctrine In the American judicial context, the concept of the public trust as a legal doctrine has grown and changed over many decades but is still perceived to have a certain founding in historic ideals: “The public trust doctrine (PTD), an ancient doctrine governing the management of natural resources, first surfaced in Roman law, reemerged in medieval England, and then was transported across the Atlantic to the United States in the early nineteenth century. Functioning as a public property doctrine, the PTD imposes limits on governmental action and provides public access rights to trust resources.” 22 The concept of public access to natural resources is not new, either to American or European property law, as early tendrils of property law can be seen snaking from Roman public access policy to pre-Modern English consideration of the ‘commons.’ Many cases and articles referencing the Public Trust Doctrine cite the Roman Emperor Justinian, in The Institutes of Justinian as he reorganized the laws of his empire: “Things common to mankind by the law of nature, are the air, running water, the sea, and, consequently the shores of the sea.”23 Justinian, in his 6th century proclamation, outlines public access to various natural resources. While it has been commonly problematized that Justinian’s statement 22 Michael Blumm and Mary Wood, The Public Trust Doctrine in Environmental and Natural Resources Law, Durham, North Carolina: Carolina Academic Press, 2015, 3. 23 Justinian I, trans. Thomas Sandars, The Institutes of Justinian: With English Introduction, Translation and Notes. London; New York, 1900, 2.1.1. 14 shouldn’t be considered with too much weight,24 the proclamation is still considered a conceptual foundation of what would become the American Public Trust Doctrine. Early American Public Trust Law A few notable early American cases established some of the foundational legal precedents on which the entire doctrine is based today. Arnold v. Mundy 25 and Martin v. Waddell’s Lessee 26 are both cases from the first half of the 19th century which established and corroborated state sovereignty over submerged lands, outlining the very first legal public resource in the nascent United States. In both cases, the plaintiffs claimed that defendants were illegally harvesting oysters that had been planted by the plaintiffs in the mud bottom of the Raritan River, and both cases were ultimately resolved in the defendant’s favor demonstrating for the first time a public right to access a specific natural resource held in public trust by the state of New Jersey. While these two cases were some of the earliest relevant to the American establishment of the public trust doctrine, it is the Supreme Court decision Illinois Central Railroad Company v. Illinois27 that has had the most effect on the later development of the public trust doctrine and which has been the most commonly and continually cited case. In 1869, in the rapidly industrializing post-civil war Midwest, the state of Illinois granted the Illinois Central Railroad Company an extensive tract of land in fee simple along the shorefront and submerged under lake Michigan that ran along nearly the 24 James Huffman, “Speaking of Inconvenient Truths - A History of the Public Trust Doctrine,” 2007, 5. Arnold v. Mundy, 6 N.J.L. 1 (Supreme Court 1821) 26 Martin v. Lessee of Waddell, 41 U.S. 367, 10 L. Ed. 997, 25 S. Ct. 276 (1842). 27 Illinois Central R. Co. v. Illinois, 146 U.S. 387, 13 S. Ct. 110, 36 L. Ed. 1018 (1892). 25 15 entirety of the Chicago business district. A few years later, the legislature repealed the grant essentially taking the land back under state ownership.28 In the court case following years of ownership disputes, the State of Illinois sued the Illinois Central Railroad over the fundamental ability of the company to own the waterfront and harbor of the city of Chicago. “The case proceeds upon the theory and allegation that the defendant, the Illinois Central Railroad Company, has, without lawful authority, encroached, and continues to encroach, upon the domain of the State, and its original ownership and control of the waters of the harbor and of the lands thereunder.” 29 The case of Illinois Central Railroad Company v. Illinois combined the previous establishment of ideas gained from Arnold v. Mundy and Martin v. Waddell’s Lessee that all states had title over submerged lands and navigable waterways within their borders and therefore that the state has a responsibility to its citizens to maintain control over those lands and waters by not granting those spaces in fee simple to a private entity. “What a state may not do, the Court said, is to divest itself of authority to govern the whole of an area in which it has responsibility to exercise its police power.” 30 Here the idea of the public trust is first translated and applied to American property law. The Illinois Central case is not without its shortcomings, however. Kearney and Merrill argue that the public trust doctrine Justice Field aimed to create: “was designed to preserve access to the lake for commercial vessels at competitive prices, not to preserve Lake Park or the shoreline from further economic development… Thus, the public trust doctrine, as invoked in the Illinois Central litigation, was scarcely an anti-development 28 Joseph Sax, “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention.” Michigan Law Review (1970), 489. 29 Illinois Central at 438. 30 Joseph Sax, “The Public Trust Doctrine,” 489. 16 doctrine.” 31 In different terms, the public trust doctrine as set with the Illinois Central precedent, has always intended to conserve natural resources for the “wise use” 32 by the American people rather than preserve a resource to prioritize ecological health in perpetuity. The difference in intent between preservation and conservation is a key foundation to distinguish, particularly as the public trust doctrine has been expanded in recent decades. The Illinois case did not discuss many of the modern interpretations we may have of public trust claims such as coastal access, the right to water usage, or even more modern discussion of rights to certain air and water qualities or spiritual use. Rather, this case validly discussed a foundational relationship between a government and its people where the government has a responsibility to hold access and use rights to certain valuable areas in trust for the public. Joseph Sax and the Public Trust Doctrine The Public Trust Doctrine may very well still be limited in scope to various claims about navigation and commerce on waterways if not for a seminal piece published by Joseph Sax in 1970, “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention.” Sax identified case precedents from the previous century developing those notions into new theory that has come to serve as a foundation of legal concept and for the modern era of environmental law. Rose writes, “Sax returned to the 31 Joseph Kearney and Thomas Merrill, “The Origins of the American Public Trust Doctrine: What Really Happened in Illinois Central” (The University of Chicago Law Review, 2004), 924. 32 “According to Pinchot, conservation stood first and foremost for the development of natural resources. They should be used, not preserved... [Resource development] should be practiced in such a way as to increase efficiency, reduce waste, and provide benefits to all Americans.” Randall Wilson, America’s Public Lands: From Yellowstone to Smokey Bear and Beyond (Lanham: Rowman & Littlefield, 2014), 47. 17 old but persistent legal idea –– that at least some resources or properties are especially subject to public claims –– but unhooked it from its traditional moorings on or around water bodies and applied it to dry land as well.” 33 While the public trust doctrine is not a new legal theory, Joseph Sax expanded the public trust doctrine beyond the limiting scope of previous case law arguing that the doctrine could be applied more broadly to other aspects of environmental law, specifically in diversifying what could be interpreted as held in “the public trust,” such as ecological value. In his 1970 paper, Sax reminds us that the Constitution of the United States was founded on ideas of liberal freedoms in direct opposition to English monarchical law, and that the ability of citizens to access fisheries and move trade goods on navigable bodies of water was a major component in the separation of political ideology between an independent United States and British colonial rule in the late 18th century. “An allied principle holds that certain interests are so particularly the gifts of nature’s bounty that they ought to be reserved for the whole of the populace.” 34 While remnants of this principle may have rolled into the ‘wise use’ resource doctrine of the late 19th and 20th centuries, the founding fathers of public legal thought would have been keenly conscious of the widespread natural resource supply on the American continent. Sax argues that this awareness of natural resource value should extend to a value of ecological health. Six years prior to Sax’s paper publication, environmental law pivoted around the 1964 Wilderness Act which legislated that preserving natural resources simply for the value of ecological health rather than a monetary value of extracted material was an appropriate 33 Carol M. Rose, “Joseph Sax and the Idea of the Public Trust” Issues in Legal Scholarship 3, no. 1 (January 8, 2003), 352. 34 Joseph Sax, “The Public Trust Doctrine,” 484. 18 use of resources. The revolutionary stance that Sax took was that conserving natural resources for their ecological value was also viable use, proposing that ecological value to be weighed in the same system that addressed the more easily quantifiable elements of fee simple property. As case law was established by Arnold v. Mundy, Martin v. Waddell, and Illinois Central Railroad Co. V. Illinois, evolving public uses of natural resources called for an evolving public trust doctrine to reflect those uses. Sax argued that just as the public trust doctrine evolved through its nascent years in the 19th century, the public trust doctrine needed to grow and expand based on the demands and applications of the 20th century. The Mono Lake Case In the time leading up to Sax’s 1970 paper publication, the Public Trust Doctrine had long been applied to the trilogy of commerce, navigation, and fishing as represented in early cases that defined the public trust doctrine such as Illinois Central. However, several cases relying on Sax’s argument quickly set a precedent for expansion of the Public Trust Doctrine to be considered in a broader ecological context such as Marks v. Whitney in 1971 which established that conservation of tidelands against development for ecological purposes as a valid public use35 and a 1972 Wisconsin case in which privately owned wetlands could be barred from being filled in order to preserve those wetlands in their natural condition.36 By far the most impactful case that expanded application of the Public Trust Doctrine into ecological applications was the 1983 case of National 35 36 Marks v. Whitney, 491 P.2d 374, 6 Cal. 3d 251, 98 (Cal. Supreme Ct. 1971) at 260. Just v. Marinette County, 201 N.W.2d 761, 56 Wis. 2d 7, 56 Wis. 7 (Sup. Ct. of Wisconsin 1972) at 768. 19 Audubon Society v. The Superior Court of Alpine County (Mono Lake).37 This case built on Marks v. Whitney but looked at the validity of ecological protection by the public trust in the context of inland bodies of water rather than tidelands. In Mono Lake, the California Supreme Court decided that the Public Trust Doctrine may actually apply in greater circumstances than in previous decades. The Mono Lake case resulted from the mechanism of prior appropriation used by the City of Los Angeles to divert inflows to Mono Lake from the Sierra Nevada range, the lake’s primary form of recharge, which ultimately led to lowered lake levels and ecological damage. As a result of these diversions, the level of the lake has dropped; the surface area has diminished by one-third; one of the two principal islands in the lake has become a peninsula, exposing the gull rookery there to coyotes and other predators and causing the gulls to abandon the former island. The ultimate effect of continued diversions is a matter of intense dispute, but there seems little doubt that both the scenic beauty and the ecological values of Mono Lake are imperiled.38 Dramatically reduced inflows to the lake caused significant alterations to the water body itself and concurrently caused ecological damage primarily in the form of nesting bird habitat, but also in potentially altering the food supply of brine shrimp for migratory birds. 37 National Audubon Society v. Superior Court (Mono Lake), 658 P.2d 709, 33 Cal. 3d 419, 189 Cal. Rptr. 346 (Cal. Sup. Ct. 1983). 38 Mono Lake at 423. 20 Justice Broussard saw a conflict between two valid uses of a resource, one that specifically allowed for the diversion of water and an equal use that required the presence of water in Mono Lake, in this case for ecological protection. This case brings together for the first time two systems of legal thought: the appropriative water rights system which since the days of the gold rush has dominated California water law, and the public trust doctrine which, after evolving as a shield for the protection of tidelands, now extends its protective scope to navigable lakes. Ever since we first recognized that the public trust protects environmental and recreational values (Marks v. Whitney (1971)), the two systems of legal thought have been on a collision course. 39 The doctrine of prior appropriation has been the dominant system of water law since settlement began in the American West in the early 19th century. In this system, consumptive water use is rewarded by allowing the water right owners with the earliest claims to divert as much as their claim allows for consumptive purposes, regardless of how much the water source produces and how much later claimants may need or desire.40 The prior appropriation doctrine has faced many criticisms for its simplicity, lack of equitable resource allocation, and inability to consider non-consumptive uses, however the doctrine has remained the dominant water law method in California and other western states. Through the prior appropriation doctrine, the City of Los Angeles claimed that it owned the right to withdraw a prescribed amount of water for consumptive use (in this instance nearly the entirety of the supply) from the tributaries of Mono Lake. At the same 39 Mono Lake at 425. Erin Ryan, “The Public Trust Doctrine, Private Water Allocation, and Mono Lake: The Historic Saga of ‘National Audubon Society v. Superior Court,’” 2015, 576. 40 21 time, the National Audubon Society was arguing a newer but also potentially valid perspective that the state of California had an obligation to maintain jurisdictional control over navigable inland waterways for the purpose of maintaining the public right to utilize those resources. Specifically, the National Audubon Society argued that maintenance of ecological habitat for migratory and nesting birds was a valid public use of the water flowing into Mono Lake. In the 1983 Mono Lake opinion, Justice Broussard wrote that given the precedent of Marks v. Whitney, which demonstrated ecological application of the public trust doctrine, the prior appropriation doctrine and the public trust doctrine were set on a collision course and there must be space to solve problems using the tools that both systems offer. “In our opinion, both the public trust doctrine and the water rights system embody important precepts which make the law more responsive to the diverse needs and interests involved in the planning and allocation of water resources.”41 The public trust doctrine doesn’t usurp the power of prior appropriation and take away property rights, but rather should be considered to fill in the use and allotment gaps that prior appropriation doesn’t accurately consider. This principle of accommodation, as written about by Michael Blumm, is a primary use for the public trust doctrine: “The [public trust] doctrine actually functions to mediate between public and private rights, and thus is hardly the antithesis of private property; instead, it functions to transform, not eradicate, private property rights.” 42 This recognition of intersection of legal doctrine is key in positioning Mono Lake within the context of an evolving public trust doctrine. By 41 Mono Lake at 445. Michael Blumm, “The Public Trust Doctrine and Private Property: The Accommodation Principle” (2010), 650. 42 22 demonstrating a precedent for how the PTD may interact with other hegemonic private property doctrines, the PTD and its tools grew a similar weight to be potentially carried forward into interactions with private property law and Native American law. 23 IV. Valuable Legal Tools Gained from the Public Trust Doctrine Attempts to expand the public trust doctrine in scope have been made since Joseph Sax published his seminal piece on the doctrine in 1970 and many, such as Marks v. Whitney and Mono Lake have succeeded in their goals of expanding the PTD to include ecological conservation. However, the public trust doctrine could be expanded further yet by highlighting and focusing on a few specific attributes that are more universal than the foundation of the doctrine in navigational rights of public waterways. There are three key tools gained from the public trust doctrine that could broaden the scope of its application: Governmental obligation to hold public easements to natural resources in trust, a widespread legal basis of nuisance law that can be broadly applied to many cases argued in the vein of the public trust doctrine, and the use of the PTD as a mechanism for internalizing market externalities. Governmental Obligation to Protect Natural Resources Held in Public Trust Through its evolution and growth, the public trust doctrine has developed several key legal tools which have been commonly applied in cases citing the doctrine. These tools enable the public trust doctrine to be considered in a wider range of applications than the original precedents in case law may represent. The Mono Lake case, in line with 24 the precedent of Illinois Central, illustrated the first of these three tools; that the government has a responsibility to hold resources in trust for the public: “The state cannot abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties” 43 The modern public trust typically is seen to hold public resources in the form of public access easements, where the ‘bundle of sticks’ for a particular natural resource may be split between public and private interests. The ‘bundle of sticks’ is a common legal metaphor for explaining the allocation of various property rights, in which sticks represent rights that can be added or subtracted from the overall estate bundle.44 The legal consideration for the bifurcation of property rights in the context of the public trust are typically referred to as the jus publicum and jus privatum, or the public and private rights of a property. At the most basic level of the public trust doctrine in relation to submerged lands law, the jus privatum/ jus publicum split may appear like this: “The jus privatum is the naked legal title to submerged lands, which may in fact end up in private ownership. However, private title to such lands generally excludes the difficult-to-alienate jus publicum, which protects public access to and rights to use navigable waters.” 45 In this circumstance, rights are not wholly allocated to one party or another, but rather the public trust can hold an easement on behalf of the public in which case some rights to a piece of submerged land may be both privately and publicly owned. 43 Blumm and Wood, The Public Trust Doctrine in Environmental and Natural Resources Law, 314. Myrl L. Duncan, “Reconceiving the Bundle of Sticks: Land as a Community-Based Resource” (Environmental Law 2002), 774. 45 Robin Kundis Craig, “A Comparative Guide to the Western States’ Public Trust Doctrines: Public Values, Private Rights, and the Evolution Toward an Ecological Public Trust” (Ecology Law Quarterly 2010), 59. 44 25 The bifurcation of property rights is demonstrated by several modern cases, including Lucas v. South Carolina Coastal Council in which Lucas purchased two plots of land adjacent to a public beach for the purpose of constructing new residential homes for resale. Two years after the purchase, the South Carolina legislature passed a bill restricting construction in many beachfront areas for the purpose of limiting erosion and maintaining the beach which is held in the public trust. In his decision, Supreme Court Justice Antonin Scalia affirmed the South Carolina law and denied 5th amendment compensation on the ground that the government had taken nothing as private development rights were essentially held instead as ecological protection rights in the public trust. “A number of post-Lucas decisions have confirmed Justice Scalia’s insight that the public trust serves to limit property owner’s reasonable expectations to such an extent that loss of their development rights does not give rise to constitutional compensation.” 46 In addition, “If the public trust doctrine means that the public owns an easement in trust lands, this argument goes, then private property within the trust area is purchased subject to trust uses, and private owners need not be compensated for regulations that maintain public trust purposes.”47 As Lucas determined, if the public trust owns an easement on a particular private property parcel then the government is not subject to paying just compensation as the government is not taking property, but rather moderating a dispute between two property owners. Given the two boundaries provided by Illinois Central and Lucas, we learn that the government has an obligation to hold public resources in trust instead of privatizing them, and that the government isn’t obliged to pay 5th amendment compensation on 46 47 Michael Blumm, “The Accommodation Principle,” 649. Carol Rose, “Joseph Sax and the Idea of the Public Trust,” 358. 26 property rights that are already held as a public ownership easement when enforcing the public trust. These precedents have potential for far-reaching implications, as far more enforcement of public trust resources can occur with the precedent demonstrating that a local, state, or federal government does not pay constitutional compensation for property easements that it already holds in trust for the public. With the obligation to protect public resources and the power to enforce rights to access what may actually be a public resource without the threat of ‘takings’ compensation, Indigenous legal activists may reach further in pushing local, state, or the federal government in promoting cases for environmental justice. This could be particularly relevant to contemporary cases such as the protection of the ‘1002 section’ of the Arctic National Wildlife Refuge, an area which the Alaska State Legislature has lobbied the Department of the Interior to open to oil exploration by private companies. Public resources are directed into public ownership frequently, and the famous Illinois Central includes a prescription that while the state has the obligation to hold trust resources, the state can dispose of trust property as long as the action has little “impairment of the interest of the public.”48 However, the most recent case, GWICH'IN STEERING COMMITTEE v. US Department of the Interior 49 argues the interest of the public could be impaired as there has been inadequate transparency in permit proceedings. The Gwich'in Steering Committee first sued the State of Alaska in 2000 and later the Department of Interior in 2019 over unfulfilled Public Records Act and Freedom of Information Act requests. No privatization action can be judged as holding no 48 Illinois Central at 435. GWICH'IN STEERING COMMITTEE v. US Department of the Interior, No. 3: 19-cv-0208-HRH (D. Alaska 2019). 49 27 “impairment of the interest of the public” 50 if the public is not able to gain information transparently about a proposed action. While currently being decided over the minutiae of permit proceedings, the public trust principle demonstrating a governmental obligation to protect natural resources could potentially be relevant in future developments of the case if Indigenous legal activists choose to use the available tool. Nuisance Law and the Public Trust If we return to the ‘bundle of sticks’ metaphor briefly to consider how the sticks in the bundle may be divided between private and public holders, or the jus privatum and jus publicum, a significant central problem arises with the metaphor that reflects issues with the traditional view of property rights. “By considering the bundle [of sticks] complete in and of itself, the metaphor ignores the fact that landowners, and his bundles, interact not only with neighboring landowners but with the public at large in ways that affect society’s desire and need for a healthy environment. The metaphor also fails to account for the fact that parcels of land interact with each other within the nonhuman world.” 51 The misrepresentation carried by the ‘bundle of sticks’ metaphor relates to the field of nuisance law where issues involving overlapping or misaligned property rights of multiple parties are dealt with. According to Joseph Sax in another of his highly regarded works on property and environmental law, Defending the Environment, nuisance law: 50 51 Illinois Central at 435. Duncan, “Reconceiving the Bundle of Sticks,” 775. 28 … has not been carried over to protect those important public interests which are not ordinarily the subjects of private ownership — such as the ambient air, water, open space, the seashore, and all the other resources which comprise the repositories of environmental quality. It should not be understood by these comments that there is no legal protection for air, water, and open space; rather the point is that there is no legal protection enforceable as a right by a citizen in his capacity as a member of the public.52 Sax is saying that there is currently no tool available to the public for use to resolve conflicts between public property owners and private property owners despite the legal precedents demonstrating the legitimacy of public property ownership through the Public Trust Doctrine. “If we could get the courts to adapt the nuisance concept to public rights in environmental quality, we would be far down the road toward coping with the problems of environmental quality.” 53 Concepts from nuisance law, which already serve as an established tool for conflict resolution between private property owners, could be reformed into tools for dispute settlement between private property owners and public property owners. There are many contemporary cases where there are opposing and overlapping property rights in which nuisance law could be relevant. An example can be found in the 2017 case Standing Rock Sioux Tribe v. US ARMY CORPS: “the Tribes protest [the Dakota Access Pipeline’s] crossing at Lake Oahe, a federally regulated body of water that borders their reservations. Created by the Corps in 1958 via a dam constructed on the 52 Sax, Defending the Environment Ch. “The Public Trust: A New Charter of Environmental Rights” (New York: Knopf, 1971), 160. 53 Ibid., 160. 29 Missouri River, the Lake is a primary source of water for the Tribes, and it is considered sacred to their spiritual practices.” 54 Although it was ultimately found that the USACE was insufficient in its use of the National Environmental Policy Act processes, the case began as a complaint “asserting that the ongoing clearing and grading of the land along DAPL's route disrupted sacred Tribal sites.” 55 Essentially, the Standing Rock case began in nuisance law as a complaint where the development rights of Dakota Access, LLC came into conflict with the spiritual use rights of the Standing Rock Sioux Tribe. While the case evolved to hinge on the particulars of NEPA assessment, as argued by Joseph Sax nuisance law can be successfully applied to cases far outside the realm of fee simple property cases. The Standing Rock case is a good precedent for how nuisance law can be utilized in a broader range of cases than seen previously. Externalities of Fee Simple Ownership The concept of market externalities has been applied in economic theory since British economist Arthur Cecil Pigou published The Economics of Welfare in 1920. The fundamental argument is that there are some costs of actions by individuals or corporations that are not incorporated into a financial transaction and are therefore external from the transaction.56 These externalized costs are then unjustly paid by society (because all costs must be paid by some party), demonstrating an inefficient market. In the 1920s, this concept would have emerged following mass localized pollution of English rivers and city air from the rapid industrial growth of the previous century. For 54 Standing Rock Sioux Tribe v. US Army Corps, 205 F. Supp. 3d 4 (D.C. 2016) at 94. Ibid., 95. 56 A.C. Pigou, The Economics of Welfare (London: Macmillan and, Co., 1932), 210. 55 30 example, factories could dump manufacturing waste into a river for free. However, it costs something to dispose of waste, and that disposal cost was placed on society in the form of decreased value of fisheries, lower water quality, and later, monetarily, in river clean-up costs. In this case, despite the industrial interest diverging from the social interest, the industrialist would have no economic incentive to change the pollution habits as the cost of waste management is external to his business transaction. Left-leaning economists such as Pigou suggested the solution for a more efficient market which better internalized costs of business would be for a government regulation, or a ‘Pigouvian Tax’, to, in the case of river pollution, elevate the cost of dumping waste into a public space to potentially persuade the industrialist to find a cheaper, private alternative or at least provide some funding to the public to repay the value that was taken from the river once it became polluted.57 The local externality concept has been translated into larger-scale externality problems, such as atmospheric pollution with greenhouse gases: “If no one owns the atmosphere, the lack of enforceable property rights results in what economists call an externality: those using air for effluent disposal (e.g., carbon monoxide from cars) impose costs on the rest of society without consent or compensation for those who wish to breathe clean air. If polluters do not take into account all costs they impose, the atmospheric commons is overused by the polluters, just as an open access fishery is overfished.”58 Many academics and politicians have proposed economic solutions or ‘Pigouvian Taxes’ of some form such as the carbon taxes or controversial cap-and-trade 57 Pigou, The Economics of Welfare, 212. Terry Anderson and Fred McChesney, Property Rights: Cooperation, Conflict, and Law (Princeton, N.J.: Princeton University Press, 2003), 255. 58 31 programs that have been implemented around the world to address the atmospheric externality. However, Anderson and McChesney clearly cite part of the externality problem as arising from the lack of clear and enforceable public property rights in ownership of the atmosphere. A potential solution, or at least a method for internalization of external factors, is then a legal one. Examples such as Mono Lake demonstrate the capacity of the judicial system and the public trust doctrine to internalize external factors, like conserving habitat for migratory birds by challenging the hegemony of prior appropriation water law. By carrying forward the historical precedents illustrating public ownership of property rights to that natural resource, the doctrine internalized a value that could not be previously quantified by the water market. Within Native American legal histories, spiritual use or sacred value, ecosystem conservation for subsistence hunting, fishing, and gathering, and ecosystem services are all externalities that have not been considered within the existing legal framework in the United States.59 As there is no easily quantifiable economic value to these activities, the capitalist Euro-American legal system generally hasn’t incorporated these values well. The use of the public trust doctrine to internalize externalities could be potentially applied in many future cases where the current legal or economic system doesn’t well incorporate a non-monetary value of a natural resource, such as sacred value. This could be particularly relevant to the ongoing case spearheaded by the Bears Ears Inter-Tribal Coalition (Hopi, Zuni, Ute Mountain Ute, Diné, and Ute Tribes) 60 as the Bears Ears National Monument was illegally partially dissolved by President Trump in 2017 and 59 Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 108 S. Ct. 1319, 99 L. Ed. 2d 534 (U.S. Supreme Court 1988). 60 Hopi Tribe v. Donald J. Trump, 17-cv-2590 (D.C. 2019). 32 new gas, uranium, and mineral mining leases have been signed in the area. For decades Utah has been clamoring for the federal government to allow greater resource extraction on public lands in the southeastern corner of the state. When deciding appropriate ‘use’ for an area, federal agencies such as the Bureau of Land Management may weigh different public uses of an area. While the monetary value of oil, gas, and mineral development is easy to quantify, the value of the ecological health, cultural history, and spiritual connections61 are incredibly difficult for the Euro-American capitalist system to weigh. The methods of internalization of these factors that are external to the market through the precedent of Mono Lake demonstrate that alternative measures of value can be accommodated against the hegemony of prior appropriation water rights, the fee simple property scheme, or the leasing structure of the Bureau of Land Management so ultimately the three tools offered by the doctrine could be applied in many cases concretely by Indigenous activists in pursuit of environmental justice. 61 Kyle Renninger, “Native American Connections.” Bears Ears Inter-Tribal Coalition (web). https://bearsearscoalition.org/ancestral-and-modern-day-land-users/. 33 V. Conclusion: A Return to the South Fork of the Walla Walla River Back in the South Fork of the Walla Walla River drainage, the three tools of the public trust doctrine may be useful to legal activists who are members of the Confederated Tribes of the Umatilla Indian Reservation who could potentially sue the private landowners, BLM, and Forest Service for violations of their rights as held in the public trust doctrine. Whether legal activists choose to do so or not, I argue that the tools of the public trust doctrine exist and could potentially be applied to any case which arises out of the 2020 SFWW road incident. First, Indigenous legal activists could argue that the BLM violated its obligation to hold natural resources in trust for the use of the people by not protecting the watershed as a resource against the roadbuilding maneuver. While the BLM didn’t condone the construction, the BLM did nothing to prevent the road from being constructed, including continuing to unlock the gate on July 1st despite there no longer being a designated road on which to drive. Indigenous legal activists can cite the necessity of the government to protect public resources such as the healthy spawning grounds for anadromous fish, and the inadequacy of the BLM’s previous policing. A second potential consideration for an environmental justice case in the SFWW drainage is the solid legal basis of nuisance law: While the landowners cite the right to use an easement on the old Boise-Cascade logging road,62 it could be argued that the landowners interfered with the right of CTUIR 62 Bureau of Land Management, “South Fork Walla Walla Landowner Access Environmental Assessment” 2005. 34 members to the public property rights of clean water and stable spawning grounds for anadromous fish. Both these sets of rights may very well be valid, which would lead to a situation where precedents from long history of nuisance law in relation to the public trust could potentially be used. As Michael Blumm wrote, the public trust doctrine serves to accommodate multiple interests, overlapping rights, and intersecting doctrines not by eliminating private property but rather by creating room for public trust easements.63 If Indigenous legal activists chose to do so, they could potentially frame a case in the SFWW as a nuisance law case, bringing public property rights onto the same figurative plane as the fee simple and easement property rights of the private property owners. Lastly, the public trust doctrine can serve as an excellent legal instrument for internalizing market externalities. The current legal system doesn’t appropriately value access to anadromous fish, for example. While it may be easy enough to quantify the cost necessary to operate a fish hatchery, the cultural value linking the First Foods movement 64 with a healthy anadromous fish population is not quantifiable in monetary value and ultimately should not be measured in Euro-American capitalist terms. Mono Lake sets forward a precedent demonstrating the potential of the public trust doctrine to bring ecological considerations into a legal conversation. A further externality challenge that a public trust doctrine case is yet to address is incorporating cultural and spiritual value of a natural resource which could be introduced in a case on the SFWW river incident. Indigenous peoples in the Americas have been politically and socially persecuted since initial European contact. After the establishment of a national government uniting 63 Blumm, “Accommodation Principle,” 650. Confederated Tribes of the Umatilla Indian Reservation, “First Foods & Life Cycles: The Heartbeat of Our Community” https://ctuir.org/about/first-foods/. 64 35 the States of America, federal policies debasing native peoples were implemented at the same time that our judicial-political system was constructed. The histories of exploitation of Indigenous people and the establishment of a white-centric judicial system are inextricable, and therefore Indigenous legal activists work much harder to argue for environmental justice causes in a space that was not created for them. I acknowledge that applying the public trust doctrine to contemporary cases continues to require Indigenous people to defend their rights within a biased system that originally created structural problems; however, I continue to advocate for the expansion of the doctrine within the current system for the pragmatic reason of the doctrine’s feasibility as a legitimate tool for environmental justice. Demonstrating the viability of the public trust doctrine and its components as legal tools in application to the SFWW road incident broadens the methods by which Indigenous legal activists may seek environmental justice. By considering the development of the judicial system concurrent with natural resource exploitation and the debasement of Indigenous peoples, we are able to both gain an understanding of how the public trust doctrine fits into modern natural resource policy, but also how its key tools may be utilized outside of the common scope for greater application in environmental justice cases brought by Indigenous legal activists. These three tools: the governmental obligation to hold public easements to natural resources in trust, a widespread legal basis of nuisance law that can be broadly applied to many cases argued in the vein of the public trust doctrine, and the use of the PTD as a mechanism for internalizing market externalities allow the doctrine to be potentially expanded beyond the original scope of holding rights to navigational access, the contemporary plane of 36 holding rights to healthy ecosystems, into a new realm prioritizing applications by Indigenous people that promote environmental justice. 37 Bibliography Anderson, Terry L., and McChesney, Fred S. Property Rights: Cooperation, Conflict, and Law. Princeton, N.J.: Princeton University Press, 2003. Arnold v. Mundy, 6 N.J.L. 1 (Supreme Court 1821) Blumm, Michael C., and Wood, Mary Christina. The Public Trust Doctrine in Environmental and Natural Resources Law. Second ed. Durham, North Carolina: Carolina Academic Press, 2015. Blumm, Michael C. “The Public Trust Doctrine and Private Property: The Accommodation Principle.” Pace Environmental Law Review, 2010. Bormann v. KOSSUTH COUNTY BD. OF SUP'RS, 584 N.W.2d 309 (Iowa 1998). Editors of Encyclopaedia Britannica. "Chief Joseph". Encyclopedia Britannica, 17 Sep. 2020, https://www.britannica.com/biography/Chief-Joseph. Accessed 18 April 2021. Bureau of Land Management, Vale District. “South Fork Walla Walla Landowner Access Environmental Assessment (EA) # OR-035-06-03,” 2005. Confederated Tribes of the Umatilla Indian Reservation. “First Foods & Life Cycles: The Heartbeat of Our Community.” Accessed April 19, 2021. https://ctuir.org/about/first-foods/. Craig, Robin Kundis. “A Comparative Guide to the Westem States’ Public Trust Doctrines: Public Values, Private Rights, and the Evolution Toward an Ecological Public Trust.” Ecology Law Quarterly, 2010. Duncan, Myrl L. “Reconceiving the Bundle of Sticks: Land as a Community-Based Resource.” Environmental Law, 2002. 38 Freyfogle, Eric T. The Land We Share: Private Property and the Common Good. Washington, D.C.: Island Press, 2003. GWICH'IN STEERING COMMITTEE v. US Department of the Interior, No. 3: 19-cv0208-HRH (D. Alaska Sept. 30, 2019). Hopi Tribe v. Donald J. Trump, 17-cv-2590 (D.C. 2019). Huffman, James. “Speaking of Inconvenient Truths - A History of the Public Trust Doctrine,” 2007. Illinois Central R. Co. v. Illinois, 146 U.S. 387, 13 S. Ct. 110, 36 L. Ed. 1018 (1892). Just v. Marinette County, 201 N.W.2d 761, 56 Wis. 2d 7, 56 Wis. 7 (Sup. Ct. of Wisconsin 1972). Kearney, Joseph, and Thomas Merrill. “The Origins of the American Public Trust Doctrine: What Really Happened in Illinois Central.” The University of Chicago Law Review, 2004. Kimmerer, Robin Wall. Braiding Sweetgrass: Indigenous Wisdom, Scientific Knowledge and the Teachings of Plants. 1. edition. Minneapolis, Minn: Milkweed Editions, 2013. Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 108 S. Ct. 1319, 99 L. Ed. 2d 534 (U.S. Supreme Court 1988). Marks v. Whitney, 491 P.2d 374, 6 Cal. 3d 251, 98 (Cal. Supreme Ct. 1971). Martin v. Lessee of Waddell, 41 U.S. 367, 10 L. Ed. 997, 25 S. Ct. 276 (1842). National Audubon Society v. Superior Court, 658 P.2d 709, 33 Cal. 3d 419, 189 Cal. Rptr. 346 (Cal. Sup. Ct. 1983) 39 Nixon, Rob. Slow Violence and the Environmentalism of the Poor. Cambridge, Mass: Harvard University Press, 2011. “Order No. 06-14-06-20-31 Trail Closure Umatilla National Forest.” USDA Forest Service, August 20, 2020. Pigou, A. C. The Economics of Welfare. Fourth ed. London: Macmillan, and Co. 1932. Renninger, Kyle. “Native American Connections.” Bears Ears Inter-Tribal Coalition (web). Accessed April 19, 2021. https://bearsearscoalition.org/ancestral-andmodern-day-land-users/. Rose, Carol M. “Joseph Sax and the Idea of the Public Trust.” Issues in Legal Scholarship 3, no. 1 (January 8, 2003). Ryan, Erin. “The Public Trust Doctrine, Private Water Allocation, and Mono Lake: The Historic Saga of ‘National Audubon Society v. Superior Court,’” 2015. Sandars, Thomas Collett, and Justinian I. The Institutes of Justinian: With English Introduction, Translation and Notes. London; New York: Longmans, Green, and Co. 1900. Sax, Joseph L. Defending the Environment; a Strategy for Citizen Action. 1st ed. New York: Knopf, 1971. Sax, Joseph L. “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention.” Michigan Law Review 68, no. 3 (1970): 471–566. Schlosberg, David. “Reconceiving Environmental Justice: Global Movements And Political Theories.” Environmental Politics 13, no. 3 (September 2004). 40 Standing Rock Sioux Tribe v. US Army Corps, 205 F. Supp. 3d 4 (D.C. 2016). Tiller, Emerson H., and Frank B. Cross. “What Is Legal Doctrine?” Northwestern University Law Review, 2005. https://doi.org/10.2139/ssrn.730284. Williams, Serena M. "The Anticipatory Nuisance Doctrine: One Common Law Theory for Use in Environmental Justice Cases." William and Mary Environmental Law and Policy Review 19, no. 2 (1995). Wilson, Randall K. America's Public Lands: From Yellowstone to Smokey Bear and beyond. Lanham: Rowman & Littlefield, 2014. Wood, Mary. “Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited.” Utah Law Review, 1994. 41