Joseph Sax

Public Land, Public Trust

Recorded: September 15, 2013

What is the public trust doctrine?  The modern version of the doctrine was first articulated by Joseph Sax in a classic article, and explicitly used by the California Supreme Court in the famous 1983 Mono Lake case. Dr. Sax tells the story about the origins of the public trust doctrine, its value in natural resources law and why we should all care about it.

Joseph L. Sax is the James H. House & Hiram Hurd Endowment Professor, emeritus, at the University of California (Berkeley). From 1966-1986 he was the Philip Hart Distinguished University Professor at the University of Michigan, and prior to that taught at the University of Colorado and practiced law in Washington, D.C. Sax served as a visiting professor at the University of Paris I(Panthéon-Sorbonne) and Stanford University among others, and has lectured at the Ecole des hautes études en sciences sociales (Paris).

In 1994-1996 he served as Counselor to the U.S. Secretary of the Interior, where his responsibilities included federal water resource policy, endangered species law enforcement, and property rights legislation. At that time he represented the U.S. on a water delegation to Turkey, and consulted on water and environmental provisions for the new constitution for South Africa.

He has taught environmental law, water law, public land law, and property rights since 1962. Sax is the author of Defending the Environment (1970), Mountains Without Handrails (1980), and Playing Darts with a Rembrandt (2000); and co-author of Legal Control of Water Resources, 4th edition (2006). He is a contributing author to numerous books, and has written more than 150 articles in scholarly journals.

While teaching at the University of Michigan Law School, Professor Sax analyzed the public trust doctrine, publishing articles about it in 1970 and 1980. In his innovative scholarship he translated the doctrine into a modern form, as a check on the performance of regulatory agencies. His articles on the public trust helped persuade the California Supreme Court to reopen Los Angeles’ water rights to protect and repair Mono Lake and its tributaries.

Professor Sax is a graduate of Harvard College and the University of Chicago Law School. He holds an honorary doctor of law degree from the Illinois Institute of Technology. He is a Fellow of the American Academy of Arts and Sciences; and was a Fellow at the Center for Advanced Study in the Behavioral Sciences, at Stanford.

He is the recipient of many awards, including most recently the Blue Planet Prize (Japan, 2007); the Elizabeth Haub Award (Belgium, Gold Medal); U.S. Environmental Protection Agency Environmental Quality Award; Wm. O Douglas Legal Achievement Award of the Sierra Club; National Wildlife Federation Resource Defense Award; Professional Achievement Citation, University of Chicago Alumni Assn.; Environmental Law Institute Award; University of Michigan Press Biennial Book Award; Detroit Audubon Conservationist of the Year Award; University of Michigan Distinguished Faculty Achievement Award; American Motors Conservation Award; Water Education Foundation Distinguished Water Attorney Award.

From time to time, he serves as an expert witness, and recently provided an expert report in an original jurisdiction case before the United States Supreme Court involving a dispute over the Delaware River between the States of Delaware and New Jersey. He testified as an expert on public trust issues for the State of Mississippi in a case involving submerged lands under the Gulf of Mexico and has served as an expert for the U.S. Department of State in an international dispute over mining in the California Desert Conservation Area.

Joseph Sax lived in San Francisco and was married to Eleanor C. Gettes Sax.  Eleanor passed away December 24, 2013 and Joseph died March 9, 2014. They have three daughters and four grandchildren, all of whom live in California.

Joseph Sax:    In the beginning I was a law professor at the University of Colorado and I taught what were then the standard natural resources courses, which was water law, mining law, and oil and gas law.  And it occurred to me at some point that these were all taught as sort of private subjects, you know, that the mining was there for the minerals that you could pull out and the trees for harvesting and so forth, and that there was – that even though much of this activity was being done on public lands as is common in the western states, that there was really no public element in the laws that were governing these activities.

That was the beginning of my interest in this area, it was – how come there’s no public dimension to natural resources law and the public who uses these areas and actually owns most of them, doesn’t have any say in what goes on?  Because the legal standard was that you have to have a legally definable interest in order to participate.  And whether it was a lawsuit or an administrative proceeding or anything that would determine how these areas would be used.  That meant that unless you had what was the kind of economic interest, such as a contract or for timber or something like that or you were a farmer, that members of the public had no say in the decisions that were made about how these lands would be used, and whether there would be any restrictions on them, whether there would be any protection for the wildlife.

And in fact in those days when we taught water law, the notion was that if you didn’t take the water out and apply it to agriculture or something like that, it was wasted.  And so the idea was that you had to use as much of the water as you possibly could and put it to economic use.  And of course that’s one of the reasons that so many of these western streams were dewatered and that no provision was made for the protection of fish or for the riparian areas and so forth.  So I began trying to find if there were any areas in which the law recognized public rights in natural resources, and that led me to a study of the Roman law because under Roman law, the sea and the seashore could not belong to anybody, they were public.  And I thought, “Well that’s, that’s a really good idea.  That idea could be brought up to date and put into a sort of modern guise.”  My goal in my thinking about this was, “I’m going to change this from private law to public law, and I’m going to do what I can to try to put the public as a legitimate participant into the center of these debates.”

And it just so happened that this was the time when there was a lot of controversy about development on the Colorado River.  And the Sierra Club, which was at that time a very small organization — I mean nothing like the national prominence that it came to have later — they were very interested in these developments that were going on, on the Colorado River, the notion of damming up the river so that it could be used for more irrigation and so forth.  And so that was, that was sort of the first active case or legal setting in which I began to get involved in controversy over the use of natural resources and the entitlement of the public to be a full participant in that decision.

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Joseph Sax:    The Public Trust has in the ensuing years become recognized in law, and it is acknowledged in many states, at least, you know within the state law.  And I mean in that sense, it’s had a good ride even though, even though it has never, it’s never been recognized that there was a federal Public Trust.  And that is partly because of a complex sort of legalistic issue, which is that the only obligations that the federal government has is what the Congress imposes on it.  It doesn’t sort of come ready made. Whereas in the laws of the states, the notion of Public Trust as a carryover from classical times and from the English law, seems more natural.  So that’s really the reason that what development there has been in Public Trust law, has been almost exclusively on the state level.  It’s kind of a historical anomaly in a way.  I’ve always thought there was at least one place where it would be a good idea to have a federal Public Trust or to try to develop it, and that’s in the offshore areas beyond the so called three-mile limit where the federal government still manages in a proprietary way, these areas.  And I thought that an obligation, a federal law obligation to protect the resources, for example in the context of oil and gas development would be a good development, but so far it hasn’t happened.  But I never give up. I mean, I’m still… I’m still hoping and thinking about it. And I suggest it from time to time, but it’s a steeper hill to climb than we’ve had in the states.

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Huey Johnson:    Any reflections on Mono Lake?

Joseph Sax:    Well, I mean yeah, I have reflections on Mono Lake.  I mean, it was perhaps the most significant water case of you know this modern era in the sense of the courts picking up the Public Trust concept and applying it in a way that moved it out of the purely bureaucratic setting, and recognized the importance of the Public Trust concept as an independent source of authority to protect natural systems and natural resources.  So I think it was the courts acting at their very best in recognizing the legal potential of environmental protection.

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Joseph Sax:    I think it’s important to not get discouraged, keep working at it and you know moments of opportunity arise.  That’s one thing I’ve learned from working in the public sphere a lot, and that is there are just – sometimes you can’t do anything but sometimes a moment of opportunity arises. Sometimes its just because of some event that captures people’s attention and that’s when you have to move, when the moment is there.  But it’s not a straight line. You just go forward, you go back sometimes, sometimes it can be discouraging. The wrong people — at least in terms of the priorities that you have — the wrong people get elected, they’re not interested, or they’re negative.  You just have to wait them out and eventually a moment will come.  So I think, I mean – I don’t mean it in a bad sense, but I think if you’re going to work on issues like environmental protection, you have to be opportunistic in the sense that you wait until the time is ripe and then you can get some things done.

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