Research on the Protection of the Public Trust Doctrine on Urban Parks〔*〕

Wang Lingbo

(College of Political Science and Law Jiangxi Normal University,Nanchang Jiangxi 330022)

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Research on the Protection of the Public Trust Doctrine on Urban Parks〔*〕

Wang Lingbo

(College of Political Science and Law Jiangxi Normal University,Nanchang Jiangxi 330022)

The public trust doctrine is based on the belief that certain common properties — such as running water,the seashore,and air — perpetual use was dedicated to the public,government to accept the people’s trust is entitled to the ownership of the property.Urban parks as the public trust property would impose restriction on attempts by governments to transfer the possession of parks held in trust or to devote it a private use.It could even impose restriction on the capability of government to divert parks from park use to another.

urban parks;the public trust doctrine;the case of Overton Park;public trust property;public forum

Ⅰ.Basic attributes of urban parks

The city’s public parks were at one time regarded as public places for recreation and leisure,which could promote public health and improve the quality of life of urban residents.In addition to a place of recreation,physical exercise,and relaxation,these public green spaces furnish cities with touchable profits.For instance,urban parks can reduce city’s air and environmental pollution,stabilize real estate market,attract business investment and reduce crime and so on.At the same time,urban parks are public forum,traditional places for freedom of expression.

1.Urban parks as public trust property

In the 1970s,the environmental movement had begun with vigour and vitality in the United States.The environmental movement has also caused changes in philosophy.“Human chauvinism” gradually turned to “enlightened anthropocentrism”,even turned to the recognition of the rights of animals,plants,and natural landscapes.This environmental movement,as well as the philosophical turn,began to affect the understanding of public trust property.As mentioned,traditional public trust doctrine was only applicable to navigable and non-navigable waters,its purpose was to protect navigation trade in the waters.Modern public trust doctrine has been completely beyond the scope of traditional system,and its purpose is more emphasis on environmental protection.For example,in response to the 1970s of environmental movement,the Pennsylvania Constitution has added articleⅠ,section 27,states in part: “The people have a right to clean air,pure water,and the preservation of the natural,scenic,historic and esthetic values of the environment.Pennsylvania’s public natural resources are the common property of all the people,including generations yet to come.As trustee of these resources,the Commonwealth shall conserve and maintain them for the benefit of all the people.”〔1〕According to this provision,parks are part of the public natural resources that are protected by the public trust doctrine.In theory,all human activity could have certain degrees of damage to the natural,scenic and aesthetic value of an environment.This provision of the Pennsylvania Constitution has been interpreted as allowing to manage urban parks with the concept of public trust in order to ensure its development: control development of urban parks,not prohibit development.

Courts in the United States also employed the public trust doctrine in the case of parks protection.For example,invoking Illinois Central Railroad v.Illinois,the Illinois Supreme Court adjudged that the government enjoy the ownership of parks in trust for the public and promote the interests of the public in Paepke v.Public Bldg.Commn.The Illinois General Assembly had dedicated the park involved in the case as a public park,so the institutions to administer the park must hold the property in trust for the public and promote the interests of the public.Courts in New York have also taken the view that parks in New York are endowed with public trust.In Grayson v.Town of Huntington,the court cited Brooklyn Park Commissioners v.Armstrong in 1871 as the basis for the park public trust doctrine in the state of New York.Although the New York court did not mention that public trust was originally applied to navigable water,the court employed the same concept of public trust to public parks,and protected it as a natural resource for public use.

Therefore,the state and its municipalities are required to undertake the responsibility of the public trust to protect parks as natural resource by urban residents seeking to protect and maintain parks.Parks as the public trust property would impose restriction on attempts by governments to transfer the possession of parks held in trust or to devote it a private use.It could even impose restriction on the capability of government to divert parks from park use to another.

2.Urban parks as public forum

According to Tocqueville’s investigation,how is it that each person of America is involved in the affairs of his town,of his district,and of the entire State as his very own?Because each person,in his sphere,takes an active part in the government of society.The common man in the United States has understood the influence that general prosperity exercises over his own happiness,an idea so simple and yet so little known by the people.He has,moreover,become accustomed to regarding this prosperity as his work.So,in public fortune,he sees his own,and he works for the good of the State,not only by duty or by pride,but by cupidity.〔2〕

The public trust doctrine also strongly protects the right of citizens to political participation in public trust property.Effective democratic governance shall endow Citizens with a positive public discursive right on a wide range of social issues.“Orderly political participation of citizens can not be separated from the role of civil rights and civil society.”〔3〕For this purpose,citizens must have the right to freely debate in public trust property.By providing the platform for free exchange of human beings,the doctrine of public trust cultivates a participatory political culture,thus enriching socialization of human and promoting democratic governance,and finally achieving the goal of governing themselves.

According to the public trust doctrine,public trust property should be open for all,everyone can freely express his or her opinions,offer proposals,exchange information,and introduce questions.The openness of public trust property essentially allows public to freely express opinion for participating in democratic governance.Urban parks are significant places for public to communicate effectively.Any interferences which impose restrictions on the openness of urban parks as public trust property would suppress freedom of speech and harm public’s right of participation in democratic governance.Therefore,many courts in United States have cited the doctrine of public trust to ensure that urban parks as the public forum for all people to express freely his or her opinion.For instance,the U.S.Supreme Court held in Hague v.Committee for Industrial Organization that “wherever the title of streets and parks may rest,they have immemorially been held in trust for the use of the public and,time out of mind,have been used for purposes of assembly,communicating thoughts between citizens,and discussing public questions.Such use of the streets and public places has,from ancient times,been a part of the privileges,immunities,rights,and liberties of citizens.”〔4〕

Ⅱ.Protecting urban parks with the public trust doctrine

Urban parks are property protected by the doctrine of public trust,there is an equitable title vested in the public,and a ownership of common law vested in government.The government’s role as the owner of common law assumes certain environmental responsibility to the public.Government can not damage or abalienate its title of urban parks except under certain,very narrow circumstances.Although government has a wide range of discretion in implementing fiduciary duties entrusted by the public trust doctrine,government is not free to transfer or eliminate the trust.Government is imposed to bear an positive responsibility to protect urban parks.Urban parks constitute principal of the public trust assets,at the most basic level,government must bear the role of trustee in its management of urban parks.When government changes the use of urban parks,courts have generally applied two tests to analyze whether government’s behavior violate requirements of the public trust doctrine: (1) Government shall not change the use of urban parks protected by the doctrine of public trust except basing on direct and special authorization by law-making organ of a state.(2) Urban parks as public trust property can be transferred or alienated only when it is in line with the substantive standards set by courts.

1.Legislative protection: direct and special authorization

The first approach of protection,or the legislative protection,forbids the transformation or alienation of urban parks in the absence of specific legislative authorization.This rule has two meanings: first,the use of urban parks can be changed by government only when there is a direct and special authorization;second,the relevant provisions of enabling clause will be sternly be explicated by courts which will not admit activities inconformity with the legislative authorization.Professor Sax hold that courts will not simply comply with decision of a legislature,but will consider it with considerable skepticism.If courts were legislature’s rubber stamp,the public trust doctrine would become no teeth.A legislature should not violate the doctrine of public trust by briefly elaborating some public benefit.For this purpose,there are two standards to examine the appropriateness of the legislative intent: (1) the law-making organ must confirm particular urban parks;and (2) a presentation of the new public use must emerge in the legislation together with a presentation revealing the existing park use.This approach of unequivocal legislative authorization has been criticized that it impose an inadequate burden on legislative body which often fails to meet the requirements.

In the case of Overton Park,the section 4(f) of the Department of Transportation Act definitely and specifically stipulated lawful condition of changing the use of urban parks.The policy of the section 4(f) was due to public show solicitude for the deteriorating natural resources: “It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands,wildlife and waterfowl refuges,and historic sites.”〔5〕To that end,the Minister of transport was forbidden from ratifying any expressway plan or project that required public green space only if there was no feasible and prudent options of urban parks.

2.Judicial protection: review government’s behaviors

Professor Corwin believed that “The right reason which lies at the basis of the common law,on the other hand,was from the beginning judicial right reason.Considered as an act of knowledge or discovery,the common law was the act of experts,and increasingly so,with the ever firmer establishment of the doctrine of stare decisis.”〔6〕The common law is the part of the law created by courts.Judges in the common law are always the discovers of the law.As the basic system of the common law,the doctrine of public trust depends on judges’ right reason,and increasingly so,with the establishment of the doctrine of stare decisis.Basing on judge’s right reason and the doctrine of stare decisis,father Figgis has remarked: “The Common Law is the perfect ideal of law;for it is natural reason developed and expound by a collective wisdom of many generations.”〔7〕

In order to protect interests of the public in urban parks,judicial protection provided by courts is the second approach.The institutional principles of the common law are rooted in social functions of courts.The primary duty of courts is reviewing behaviors of government to deal with urban parks from the physical and procedural aspects.The core of judicial review is to investigate whether government has fulfilled its responsibilities as the trustee of urban parks.Government bears the responsibility of entities and procedures in the management of urban parks.

First,to examine the substantive responsibilities of government,courts in United States have developed five standards for testing whether the government has fulfilled its s substantive responsibilities: “(1) that public bodies would control use of the area in question;(2) that the area would be devoted to public purposes and open to the public;(3) the diminution of the area of original use would be small compared with the entire area;(4) that none of the public uses of the original area would be destroyed or greatly impaired;and (5) that the disappointment of those wanting to use the area of new use for former purposes was negligible when compared to the greater convenience to be afforded those members of the public using the new facility.”〔8〕Courts utilizing these five standards issues the final decision of whether an alienation or transformation of a urban park runs counter to the doctrine of public trust.This means that urban parks as public trust propert can be transferred or alienated in compliance with legal standards.For example,the court in the case of Overton Park analyzed: “It is obvious that in most cases considerations of cost,directness of route,and community disruption will indicate that parkland should be used for highway construction whenever possible … And since people do not live or work in parks,if a highway is built on parkland no one will have to leave his home or give up his business … Congress clearly did not intend that cost and disruption of the community were to be ignored by the Secretary.But the very existence of the statutes indicates that protection of parkland was to be given paramount importance.The few green havens that are public parks were not to be lost unless there were truly unusual factors present.”〔9〕

Second,for procedural responsibilities,courts have investigated if governmental determination has fully taken into account the interests of stakeholders by means of fair and open procedures.For this purpose,government should make decisions with enough public announcement and provide public with ample time to prepare and organize to respond.For instance,the legislature may invite non-governmental environmental protection organizations to explain the impact of any planned new laws on urban parks.Courts can overturn any valid law in the absence of participation of the public representatives,or instruct the law-making organ to amend the law.

As with the legislative protection,courts will not allow legislatures to replace its judgment,but will closely examine the behaviors of government.However,if the doctrine of public trust were considered as furnishing judicial protection for urban parks,the protection of urban parks would be entirely enslaved to the discretion of courts.The protection of urban parks must be considered in the process of government’s decision under the public trust doctrine.

Ⅲ.Conclusion: the case of Overton Park is not over

On the basis of section 4(f) of the Department of Transportation Act,the citizen’s group as the plaintiff safeguarded the park from the expressway in the case of Overton Park.The park is still a part of Memphis’s landscape.However,the threats from governmental authority do exist in the Overton Park.the Parks and Recreation Committee of the City Council voted to construct a senior center with 40000 square feet in the Southeast corner of the park in September 1995.The Overton Park was once again threatened.Opponents considered that the construction of such a senior center would create traffic jams,violate the overall plan,limit the use of Overton Park.Instead,the senior center is constructed in Overton Park which would act against the doctrine of public trust: it would tarnish that indescribable relationship between the residents and the park.The suggest for construct a senior center was finally rejected,however,the threats from governmental authority is not over.

“When Justinian,the Emperor of the East,devised his code of civil law,he acknowledged the source of the right to the common enjoyment of air and water to be paramount to his authority,and bestowed,as a common boon,by the hand of nature,or,as we would express the same sentiment,by Nature’s God.”〔10〕The air,running water,and the sea are given to mankind,in common,by the law of nature.And urban parks are given to the present and future generations of mankind by themselves.

Urban parks provide a wide range of uses for the public,and maintain the sustainable development relationship between man and nature.Above all else,urban parks provide the public with places of relaxation and entertainment,so parks shall be free open to all the public.One general principle of the public trust: when a government has a urban park,a court must examine with considerable suspicion on any action by the government which will change the use of the park.This may indicate that the public trust doctrine does not completely prohibit urban parks from transferring or disposing.However,conveyance or disposition of urban parks must fit in with the basic principles set by the doctrine of public trust.As it should be,the public trust doctrine is a flexible doctrine that can be shaped to satisfy the ever-changing social conditions and needs of the public.

〔1〕Robin Kundis Craig,A Comparative Guide to the Eastern Public Trust Doctrines: Classifications of States,Property Rights,and State Summaries,Pennsylvania State Environmental Law Review,2007,16,p.21.

〔2〕Tocqueville,Democracy in America (Volume Ⅰ),translated by Dong Guoliang,Peking: the Commercial Press,2009,p.270.

〔3〕Guo Daohui,Social Power and Civil Society,Nanjing: Yilin Press,2009,p.254.

〔4〕Haochen Sun,Toward a New Social-Political Theory of the Public Trust Doctrine,Vermont Law Review,2011,35,p.593.

〔5〕The Department of Transportation Act,49 U.S.C.§ 1653(f) (1966).

〔6〕Edward S.Corwin,the “Higher Law” Background of American Constitutional Law,Harvard Law Review,1928,42,p.172.

〔7〕Edward S.Corwin,the “Higher Law” Background of American Constitutional Law,Harvard Law Review,1928,42,pp.179.

〔8〕Joseph L.Sax,The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention,Michigan Law Review,1970,68,p.517.

〔9〕Daniel A.Farber,Saving Overton Park: a Comment on Environmental Values,University of Pennsylvania Law Review,1998,146,p.1673.

〔10〕Patrick Deveney,Title,Jus Publicum,and the Public Trust: An Historical Analysis,Sea Grant Law Journal,1976,1,p.19.

About the author：Wang Lingbo(1984—),doctor of law,lecturer at College of Political Science and Law of Jiangxi Normal University,researcher at provincial excellent legal talents education and training base of Jiangxi Normal University,mainly engaging in the research on environmental administrative law.

〔*〕The paper is supported by the key project of National Social Science Fund of China “Study on the Allocation of the Right to Use the State Owned Natural Resources”,Project No.15AZD066.