The public-trust doctrine and environmental stewardship in coastal New Hampshire.

Abstract

Landscape ecologists have identified several logical requirements for ecosystem management tools, including applicability over broad areas, effectiveness at varying scales, and responsiveness to changing conditions. The public-trust doctrine has been postulated to meet these criteria. It is a vehicle for identifying resources that provide special public benefits, it places the stream of public benefits within its mandate under the guardianship of a public trustee, and, as part of the body of common law, the doctrine can evolve in response to new conditions and information. This study poses several questions. What evidence is there that the public-trust doctrine can and has successfully protected public environmental interests? How have communities historically applied the doctrine within their borders? Has the public-trust doctrine evolved to fit changing conditions, and if so, did that flexibility promote or hinder public interests in the resources? To answer these questions I examined the history of public-trust resources in two New Hampshire towns--Hampton and Rye. Throughout the doctrine's history in these towns, it has been an instrument to protect economic uses of resources with broad public benefit. What was considered useful and publically beneficial changed over time, however, and the promotion of one use, such as tourism development, precluded other uses. As a result, the doctrine's geographical reach shrank dramatically during the twentieth century, the benefit stream contracted, and public access to the coast was constricted. The study revealed that, in some cases, there may be a difference between the functional and the legal trustee of public-trust resources and that the viewpoint of the acting trustee is critical to the effectiveness of the doctrine as a support for environmental management. Although the New Hampshire state legislature is the formal trustee, the towns are functional trustees over many public-trust resources. Therefore, local communities should be the focus of efforts to develop adequate institutional checks and balances to counter the influence of short-term interests over resource-management decisions. Townspeople need more tools to learn about the cumulative impacts of their decisions regarding valued public resources, and the impasses between the requirements of local government versus regional environmental planning must be overcome.