IMPLEMENTING THE PUBLIC TRUST DOCTRINE: A LAKESIDE VIEW INTO THE TRUSTEES’ WORLD

Melissa K. Scanlan

Abstract

Since the 1970s, the literature has been replete with articles on the public trust doctrine, as articulated by judicial opinions, constitutional provisions, and statutes. Yet, not much is known about the actual implementation of the doctrine. This article explores this missing dimension through an empirical study of water managers in Wisconsin, the “on the ground” trustees.

Wisconsin is one of a handful of states that have been on the cutting edge of articulating the public trust doctrine. Because Wisconsin has been on the forefront of developing the legal doctrine, and the budgetary and other dynamics are not unique, this empirical study illustrates for those working in other states the tensions and structures that impede or enhance public trust protections. After laying bare the systems that prevent water managers from fully carrying out their trustee duties, the article provides several modest proposals for moving forward.