I don’t think that we’ve had time to assimilate the massive spasm of privatization that has seized the federal government. To my knowledge the consequences of this wholesale abdication of governmental function to private industry are yet to be understood. This climate of ardent preference for private over public seems to have infected the Washington State Supreme Court, causing it to turn the public trust doctrine on its head. This doctrine derives from the notion that navigable waterways are held in trust by the government for the people of the community. It has been applied to tidelands and access rights to waterways. For years people have speculated how the doctrine could be applied to public lands as well. The policy underlying the doctrine seemed to have broad application and might well be used as a curb of the use of public lands in a manner that promotes private interests over public interest.
In 1987 Orion Corp v. State was decided and seemed to many to signal that the court would take a more solicitous attitude toward the public interest when it came in conflict with private interests. This case involved tide lands that a developer proposed to backfill. The tidelands had been transferred by the State to the developer without restriction, but in an uncharacteristically bold decision the court held that the public trust doctrine was like a covenant running with the land and the private developer took title subject to the public trust doctrine, which would not permit the destruction of the tide lands. Prior to this decision the public trust doctrine had not played an important role in the Court’s decisions but public interest advocates hoped that this decision signaled a more active role by the court as the state’s population swelled and community groups squared off against developers. To many the decision seemed pregnant with possibility; perhaps the Court would be more willing to apply established doctrines (the public trust doctrine came to us from England as a part of our common law heritage and originated in ancient Roman law) to protect against environmental incursions from over-zealous developers and at times apathetic governmental action or inaction. This decision was attention grabbing because in this case the public trust doctrine was being applied to private property.
These hopes for the use of the public trust doctrine as tool for environmentalists were stillborn as in the seventeen appellate cases (both published and unpublished) that considered the public trust doctrine after Orion Corp., not one invoked the doctrine to support its decision. Attempts to utilize the doctrine were slapped down each time.
That is they were slapped down until the recent decision Biggers v. the City of Bainbridge Island, where the public trust doctrine was invoked by the Court to terminate Bainbridge Island’s moratorium on the development of tidelands while it studied the environmental effects of such development. Clearly the moratorium had lasted longer than the Court thought reasonable but the invocation of the public trust doctrine to allow building permits over the local government’s objection takes the Court about as far away from the purpose of that doctrine as it could possibly be. Justice Johnson wrote the opinion, which was joined in by Justices Alexander, Sanders and Bridge (now retired). This seems to be an unusually activist group of justices, using the public trust doctrine to allow private development over the environmental concerns of local government. For these jurists the public trust doctrine has died and been reborn to thwart the purposes for which it has been applied since roughly two thousand years ago.