public trust doctrine in Iowa

2021One could respond, I suppose, by noting the very generous language in State v. Sorenson, 436 N.W.2d 358, 363 (Iowa 1989), which stated that although we do not necessarily subscribe to the broad application of the doctrine, “the public trust doctrine . . . applies broadly to the public’s use of property, such as waterways, without ironclad parameters on the types of uses to be protected.” (Emphasis omitted.) I do not join the majority’s essay on the question or any of its narrow pronouncements oddly made in a case where a party has conceded, for purposes of a motion to dismiss, that the scope o

2021One could respond, I suppose, by noting the very generous language in State v. Sorenson, 436 N.W.2d 358, 363 (Iowa 1989), which stated that although we do not necessarily subscribe to the broad application of the doctrine, “the public trust doctrine . . . applies broadly to the public’s use of property, such as waterways, without ironclad parameters on the types of uses to be protected.” (Emphasis omitted.) I do not join the majority’s essay on the question or any of its narrow pronouncements oddly made in a case where a party has conceded, for purposes of a motion to dismiss, that the scope o

2021Although the merits of this case are not before us, some understanding of the public trust doctrine is required to address the standing and justiciability issues that are before us.1 The public trust doctrine “is based on the notion that the State is a steward of our natural resources.” Fencl v. City of Harpers Ferry, 620 N.W.2d 808, 814 (Iowa 2000) (en banc).

2021In Bushby v. Washington County Conservation Board, we explained that “[t]he purpose of the public- trust doctrine is to prohibit states from ‘conveying important natural resources’ to private parties.” 654 N.W.2d 494, 497 (Iowa 2002) (quoting Fencl, 620 N.W.2d at 814 ).

2021See State v. Pettijohn, 899 N.W.2d 1, 35 (Iowa 2017) (explaining that the doctrine involves “the ‘paramount’ right of Iowans to use state waterways for navigational and recreational purposes” and noting that Congress declared the navigable waters leading into the Mississippi to be “common highways, and forever free as well to the inhabitants of said State, as to all other citizens of the United States”); Orr v. Mortvedt, 735 N.W.2d 610, 615 (Iowa 2007) (“The public generally has a right of access to navigable watercourses.”); State v. Sorensen, 436 N.W.2d 358, 362 (Iowa 1989) (noting “the stri

2021See State v. Pettijohn, 899 N.W.2d 1, 35 (Iowa 2017) (explaining that the doctrine involves “the ‘paramount’ right of Iowans to use state waterways for navigational and recreational purposes” and noting that Congress declared the navigable waters leading into the Mississippi to be “common highways, and forever free as well to the inhabitants of said State, as to all other citizens of the United States”); Orr v. Mortvedt, 735 N.W.2d 610, 615 (Iowa 2007) (“The public generally has a right of access to navigable watercourses.”); State v. Sorensen, 436 N.W.2d 358, 362 (Iowa 1989) (noting “the stri

2021In Bushby v. Washington County Conservation Board, we explained that “[t]he purpose of the public- trust doctrine is to prohibit states from ‘conveying important natural resources’ to private parties.” 654 N.W.2d 494, 497 (Iowa 2002) (quoting Fencl, 620 N.W.2d at 814 ).

2021Conservation Bd., 654 N.W.2d 494, 497 (Iowa 2002) (holding private citizens had standing under the public trust doctrine and resolving the case on the merits); Witke v. State Conservation Comm’n, 244 Iowa 261 , 271–72, 56 N.W.2d 582 , 588–89 (1953) (reaching merits of the claim and stating “the state may not restrict or charge for the use of the waters of navigable streams or lakes, and an attempt on its part to do so is a deprivation of the citizen of his property without due process of law, and without compensation, and so in violation of Sections 9 and 18 of Article I of the Constitution of

2021Conservation Bd., 654 N.W.2d 494, 497 (Iowa 2002) (holding private citizens had standing under the public trust doctrine and resolving the case on the merits); Witke v. State Conservation Comm’n, 244 Iowa 261 , 271–72, 56 N.W.2d 582 , 588–89 (1953) (reaching merits of the claim and stating “the state may not restrict or charge for the use of the waters of navigable streams or lakes, and an attempt on its part to do so is a deprivation of the citizen of his property without due process of law, and without compensation, and so in violation of Sections 9 and 18 of Article I of the Constitution of

2021Conservation Bd., 654 N.W.2d 494, 497 (Iowa 2002) (holding private citizens had standing under the public trust doctrine and resolving the case on the merits); Witke v. State Conservation Comm’n, 244 Iowa 261 , 271–72, 56 N.W.2d 582 , 588–89 (1953) (reaching merits of the claim and stating “the state may not restrict or charge for the use of the waters of navigable streams or lakes, and an attempt on its part to do so is a deprivation of the citizen of his property without due process of law, and without compensation, and so in violation of Sections 9 and 18 of Article I of the Constitution of

2021Corp., 520 N.W.2d 294, 299 (Iowa 1994), abrogated on other grounds by Barreca v. Nickolas, 683 N.W.2d 111, 121 (Iowa 2004); see also State v. Pettijohn, 899 N.W.2d 1, 35 (Iowa 2017) (describing recreational use of navigable waters as a “ ‘paramount’ right” under the public trust doctrine); McCauley v. Salmon, 234 Iowa 1020, 1022 , 14 N.W.2d 715, 716 (1944) (“The right of the public to navigate the water is paramount.

2021Corp., 520 N.W.2d 294, 299 (Iowa 1994), abrogated on other grounds by Barreca v. Nickolas, 683 N.W.2d 111, 121 (Iowa 2004); see also State v. Pettijohn, 899 N.W.2d 1, 35 (Iowa 2017) (describing recreational use of navigable waters as a “ ‘paramount’ right” under the public trust doctrine); McCauley v. Salmon, 234 Iowa 1020, 1022 , 14 N.W.2d 715, 716 (1944) (“The right of the public to navigate the water is paramount.

2021See Nat’l Audubon Soc’y v. Superior Ct., 658 P.2d 709, 712 (Cal. 1983) (applying public trust doctrine in environmental setting); In re Water Use Permit Applications, 9 P.3d at 447 (holding that public trust applies to ground water and surface water); Lamprey v. Metcalf, 53 N.W. 1139, 1143 (Minn. 1893) (noting that public trust doctrine applies to use of waterways “and other public purposes which cannot now be enumerated or even anticipated”); Ralph W.

2021See Nat’l Audubon Soc’y v. Superior Ct., 658 P.2d 709, 712 (Cal. 1983) (applying public trust doctrine in environmental setting); In re Water Use Permit Applications, 9 P.3d at 447 (holding that public trust applies to ground water and surface water); Lamprey v. Metcalf, 53 N.W. 1139, 1143 (Minn. 1893) (noting that public trust doctrine applies to use of waterways “and other public purposes which cannot now be enumerated or even anticipated”); Ralph W.

2021Corp., 520 N.W.2d 294, 299 (Iowa 1994), abrogated on other grounds by Barreca v. Nickolas, 683 N.W.2d 111, 121 (Iowa 2004); see also State v. Pettijohn, 899 N.W.2d 1, 35 (Iowa 2017) (describing recreational use of navigable waters as a “ ‘paramount’ right” under the public trust doctrine); McCauley v. Salmon, 234 Iowa 1020, 1022 , 14 N.W.2d 715, 716 (1944) (“The right of the public to navigate the water is paramount.

2021Corp., 520 N.W.2d 294, 299 (Iowa 1994), abrogated on other grounds by Barreca v. Nickolas, 683 N.W.2d 111, 121 (Iowa 2004); see also State v. Pettijohn, 899 N.W.2d 1, 35 (Iowa 2017) (describing recreational use of navigable waters as a “ ‘paramount’ right” under the public trust doctrine); McCauley v. Salmon, 234 Iowa 1020, 1022 , 14 N.W.2d 715, 716 (1944) (“The right of the public to navigate the water is paramount.

2021Id. at 495– 12 96; see also Magers-Fionof v. State, 555 N.W.2d 672, 674 (Iowa 1996) (stating it was “very doubtful” that the public trust doctrine provided a cause of action against the state for injury to trees grown in state parks).

2021Id. at 495– 12 96; see also Magers-Fionof v. State, 555 N.W.2d 672, 674 (Iowa 1996) (stating it was “very doubtful” that the public trust doctrine provided a cause of action against the state for injury to trees grown in state parks).

2021See Luse, 254 N.W.2d at 327–28 (“Iowa courts have power to adjudicate substantial claims of deprivation of federal or Iowa constitutional rights . . . .”).12 With respect to standing, I believe the plaintiffs’ request for a declaration of their rights and the State’s obligations meets the redressability threshold, assuming redressability applies as the majority insists.

2021See Luse, 254 N.W.2d at 327–28 (“Iowa courts have power to adjudicate substantial claims of deprivation of federal or Iowa constitutional rights . . . .”).12 With respect to standing, I believe the plaintiffs’ request for a declaration of their rights and the State’s obligations meets the redressability threshold, assuming redressability applies as the majority insists.

2021Corp., 520 N.W.2d 294, 299 (Iowa 1994), abrogated on other grounds by Barreca v. Nickolas, 683 N.W.2d 111, 121 (Iowa 2004); see also State v. Pettijohn, 899 N.W.2d 1, 35 (Iowa 2017) (describing recreational use of navigable waters as a “ ‘paramount’ right” under the public trust doctrine); McCauley v. Salmon, 234 Iowa 1020, 1022 , 14 N.W.2d 715, 716 (1944) (“The right of the public to navigate the water is paramount.

2021Corp., 520 N.W.2d 294, 299 (Iowa 1994), abrogated on other grounds by Barreca v. Nickolas, 683 N.W.2d 111, 121 (Iowa 2004); see also State v. Pettijohn, 899 N.W.2d 1, 35 (Iowa 2017) (describing recreational use of navigable waters as a “ ‘paramount’ right” under the public trust doctrine); McCauley v. Salmon, 234 Iowa 1020, 1022 , 14 N.W.2d 715, 716 (1944) (“The right of the public to navigate the water is paramount.

2021While giving lip service to the doctrinal notion that “standing does not depend on the legal merits of a claim,” Godfrey v. State, 752 N.W.2d 413, 420 (Iowa 2008), the majority necessarily addresses the merits by basing its standing holding on the premise that the public trust doctrine does not provide the protections the plaintiffs allege.

2021While giving lip service to the doctrinal notion that “standing does not depend on the legal merits of a claim,” Godfrey v. State, 752 N.W.2d 413, 420 (Iowa 2008), the majority necessarily addresses the merits by basing its standing holding on the premise that the public trust doctrine does not provide the protections the plaintiffs allege.

2021See Marks v. Whitney, 491 P.2d 374, 380 (Cal. 1971) (en banc) (“In administering the trust the state is not burdened with an outmoded classification favoring one mode of utilization over another.”); In re Water Use Permit Applications, 9 P.3d 409, 450 (Haw. 2000) (declaring that purposes or uses of the public trust doctrine have “evolved over time”); Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355, 365 (N.J. 1984) (declaring public trust doctrine is not “ ‘fixed or static,’ but one to ‘be molded and extended to meet changing conditions and needs of the public it was created to benefit.’ ”

2021See Marks v. Whitney, 491 P.2d 374, 380 (Cal. 1971) (en banc) (“In administering the trust the state is not burdened with an outmoded classification favoring one mode of utilization over another.”); In re Water Use Permit Applications, 9 P.3d 409, 450 (Haw. 2000) (declaring that purposes or uses of the public trust doctrine have “evolved over time”); Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355, 365 (N.J. 1984) (declaring public trust doctrine is not “ ‘fixed or static,’ but one to ‘be molded and extended to meet changing conditions and needs of the public it was created to benefit.’ ”

2021Johnson, Water Pollution and the Public Trust Doctrine, 19 Env’t L. 485, 488 & n.13 (1989) (“[I]n recent years, courts have increasingly identified water quality as a separate or specific, rather than derivative, interest protected by the public trust doctrine.” (citing Nat’l Audubon Soc’y v. Superior Ct., 658 P.2d 709 (Cal. 1983))).

2021Johnson, Water Pollution and the Public Trust Doctrine, 19 Env’t L. 485, 488 & n.13 (1989) (“[I]n recent years, courts have increasingly identified water quality as a separate or specific, rather than derivative, interest protected by the public trust doctrine.” (citing Nat’l Audubon Soc’y v. Superior Ct., 658 P.2d 709 (Cal. 1983))).

2021In the procedural posture presented, the plaintiffs have thus asserted a cognizable legal claim. “[A] plaintiff . . . has what we have come to call ‘standing,’ whenever he has a legally cognizable cause of action, regardless of whether he can show a separate, stand-alone factual injury.” Sierra v. City of Hallandale Beach, 996 F.3d 1110, 1115 (11th Cir. 2021) (Newsom, J., concurring); id. at 1131 (“The question whether a plaintiff has ‘standing’ really just boils down to the question of whether he has a cause of action—whether his legal rights have been infringed and whether the positive law a

2021In the procedural posture presented, the plaintiffs have thus asserted a cognizable legal claim. “[A] plaintiff . . . has what we have come to call ‘standing,’ whenever he has a legally cognizable cause of action, regardless of whether he can show a separate, stand-alone factual injury.” Sierra v. City of Hallandale Beach, 996 F.3d 1110, 1115 (11th Cir. 2021) (Newsom, J., concurring); id. at 1131 (“The question whether a plaintiff has ‘standing’ really just boils down to the question of whether he has a cause of action—whether his legal rights have been infringed and whether the positive law a

2021See Marks v. Whitney, 491 P.2d 374, 380 (Cal. 1971) (en banc) (“In administering the trust the state is not burdened with an outmoded classification favoring one mode of utilization over another.”); In re Water Use Permit Applications, 9 P.3d 409, 450 (Haw. 2000) (declaring that purposes or uses of the public trust doctrine have “evolved over time”); Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355, 365 (N.J. 1984) (declaring public trust doctrine is not “ ‘fixed or static,’ but one to ‘be molded and extended to meet changing conditions and needs of the public it was created to benefit.’ ”

2021See Marks v. Whitney, 491 P.2d 374, 380 (Cal. 1971) (en banc) (“In administering the trust the state is not burdened with an outmoded classification favoring one mode of utilization over another.”); In re Water Use Permit Applications, 9 P.3d 409, 450 (Haw. 2000) (declaring that purposes or uses of the public trust doctrine have “evolved over time”); Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355, 365 (N.J. 1984) (declaring public trust doctrine is not “ ‘fixed or static,’ but one to ‘be molded and extended to meet changing conditions and needs of the public it was created to benefit.’ ”

2021Int. v. Hassell, 837 P.2d 158, 169 (Ariz. Ct. App. 1991) (citation omitted) (“The check and balance of judicial review provides a level of protection against improvident dissipation of an irreplaceable res.”); see also Kootenai Env’t All., Inc. v. Panhandle Yacht Club, Inc., 671 P.2d 1085, 1092 (Idaho 1983) (“Final determination whether the alienation or impairment of a public trust resource violates the public trust doctrine will be made by the judiciary. . . . [T]his court will take a ‘close look’ at the action to determine if it complies with the public trust doctrine and it will not act me

2021Int. v. Hassell, 837 P.2d 158, 169 (Ariz. Ct. App. 1991) (citation omitted) (“The check and balance of judicial review provides a level of protection against improvident dissipation of an irreplaceable res.”); see also Kootenai Env’t All., Inc. v. Panhandle Yacht Club, Inc., 671 P.2d 1085, 1092 (Idaho 1983) (“Final determination whether the alienation or impairment of a public trust resource violates the public trust doctrine will be made by the judiciary. . . . [T]his court will take a ‘close look’ at the action to determine if it complies with the public trust doctrine and it will not act me

2021See Marks v. Whitney, 491 P.2d 374, 380 (Cal. 1971) (en banc) (“In administering the trust the state is not burdened with an outmoded classification favoring one mode of utilization over another.”); In re Water Use Permit Applications, 9 P.3d 409, 450 (Haw. 2000) (declaring that purposes or uses of the public trust doctrine have “evolved over time”); Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355, 365 (N.J. 1984) (declaring public trust doctrine is not “ ‘fixed or static,’ but one to ‘be molded and extended to meet changing conditions and needs of the public it was created to benefit.’ ”

2021See Marks v. Whitney, 491 P.2d 374, 380 (Cal. 1971) (en banc) (“In administering the trust the state is not burdened with an outmoded classification favoring one mode of utilization over another.”); In re Water Use Permit Applications, 9 P.3d 409, 450 (Haw. 2000) (declaring that purposes or uses of the public trust doctrine have “evolved over time”); Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355, 365 (N.J. 1984) (declaring public trust doctrine is not “ ‘fixed or static,’ but one to ‘be molded and extended to meet changing conditions and needs of the public it was created to benefit.’ ”

2021Int. v. Hassell, 837 P.2d 158, 169 (Ariz. Ct. App. 1991) (citation omitted) (“The check and balance of judicial review provides a level of protection against improvident dissipation of an irreplaceable res.”); see also Kootenai Env’t All., Inc. v. Panhandle Yacht Club, Inc., 671 P.2d 1085, 1092 (Idaho 1983) (“Final determination whether the alienation or impairment of a public trust resource violates the public trust doctrine will be made by the judiciary. . . . [T]his court will take a ‘close look’ at the action to determine if it complies with the public trust doctrine and it will not act me

2021Int. v. Hassell, 837 P.2d 158, 169 (Ariz. Ct. App. 1991) (citation omitted) (“The check and balance of judicial review provides a level of protection against improvident dissipation of an irreplaceable res.”); see also Kootenai Env’t All., Inc. v. Panhandle Yacht Club, Inc., 671 P.2d 1085, 1092 (Idaho 1983) (“Final determination whether the alienation or impairment of a public trust resource violates the public trust doctrine will be made by the judiciary. . . . [T]his court will take a ‘close look’ at the action to determine if it complies with the public trust doctrine and it will not act me

2021See Marks v. Whitney, 491 P.2d 374, 380 (Cal. 1971) (en banc) (“In administering the trust the state is not burdened with an outmoded classification favoring one mode of utilization over another.”); In re Water Use Permit Applications, 9 P.3d 409, 450 (Haw. 2000) (declaring that purposes or uses of the public trust doctrine have “evolved over time”); Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355, 365 (N.J. 1984) (declaring public trust doctrine is not “ ‘fixed or static,’ but one to ‘be molded and extended to meet changing conditions and needs of the public it was created to benefit.’ ”

2021See Marks v. Whitney, 491 P.2d 374, 380 (Cal. 1971) (en banc) (“In administering the trust the state is not burdened with an outmoded classification favoring one mode of utilization over another.”); In re Water Use Permit Applications, 9 P.3d 409, 450 (Haw. 2000) (declaring that purposes or uses of the public trust doctrine have “evolved over time”); Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355, 365 (N.J. 1984) (declaring public trust doctrine is not “ ‘fixed or static,’ but one to ‘be molded and extended to meet changing conditions and needs of the public it was created to benefit.’ ”

2021Corp., 520 N.W.2d 294, 299 (Iowa 1994), abrogated on other grounds by Barreca v. Nickolas, 683 N.W.2d 111, 121 (Iowa 2004); see also State v. Pettijohn, 899 N.W.2d 1, 35 (Iowa 2017) (describing recreational use of navigable waters as a “ ‘paramount’ right” under the public trust doctrine); McCauley v. Salmon, 234 Iowa 1020, 1022 , 14 N.W.2d 715, 716 (1944) (“The right of the public to navigate the water is paramount.

2021Corp., 520 N.W.2d 294, 299 (Iowa 1994), abrogated on other grounds by Barreca v. Nickolas, 683 N.W.2d 111, 121 (Iowa 2004); see also State v. Pettijohn, 899 N.W.2d 1, 35 (Iowa 2017) (describing recreational use of navigable waters as a “ ‘paramount’ right” under the public trust doctrine); McCauley v. Salmon, 234 Iowa 1020, 1022 , 14 N.W.2d 715, 716 (1944) (“The right of the public to navigate the water is paramount.

2021Int. v. Hassell, 837 P.2d 158, 169 (Ariz. Ct. App. 1991) (citation omitted) (“The check and balance of judicial review provides a level of protection against improvident dissipation of an irreplaceable res.”); see also Kootenai Env’t All., Inc. v. Panhandle Yacht Club, Inc., 671 P.2d 1085, 1092 (Idaho 1983) (“Final determination whether the alienation or impairment of a public trust resource violates the public trust doctrine will be made by the judiciary. . . . [T]his court will take a ‘close look’ at the action to determine if it complies with the public trust doctrine and it will not act me

2021Int. v. Hassell, 837 P.2d 158, 169 (Ariz. Ct. App. 1991) (citation omitted) (“The check and balance of judicial review provides a level of protection against improvident dissipation of an irreplaceable res.”); see also Kootenai Env’t All., Inc. v. Panhandle Yacht Club, Inc., 671 P.2d 1085, 1092 (Idaho 1983) (“Final determination whether the alienation or impairment of a public trust resource violates the public trust doctrine will be made by the judiciary. . . . [T]his court will take a ‘close look’ at the action to determine if it complies with the public trust doctrine and it will not act me

2021Piper v. State, the Washington Court of Appeals recently affirmed the dismissal on political question grounds of a lawsuit seeking to use the public trust doctrine to achieve the regulation of greenhouse gas emissions. 480 P.3d 438 , 447–49 (Wash. Ct. App. 2021); see also Kanuk, 335 P.3d at 1090–91 (finding claims seeking specific relief based on the public trust doctrine to be barred by the political question doctrine and that other, more general claims should have been dismissed on prudential grounds); Butler ex rel.

2021Piper v. State, the Washington Court of Appeals recently affirmed the dismissal on political question grounds of a lawsuit seeking to use the public trust doctrine to achieve the regulation of greenhouse gas emissions. 480 P.3d 438 , 447–49 (Wash. Ct. App. 2021); see also Kanuk, 335 P.3d at 1090–91 (finding claims seeking specific relief based on the public trust doctrine to be barred by the political question doctrine and that other, more general claims should have been dismissed on prudential grounds); Butler ex rel.

2017It also includes “the public’s right of access to public waters.” Larman, 552 N.W.2d at 161 .

2017See Larman, 552 N.W.2d at 161 (“[A]ccess is protected only to the extent the land providing such access is owned by the State.”).

2017See Estate of McFarlin v. State, 881 N.W.2d 51, 56-58 (Iowa 2016). 8 The Winterses claim the railroad has only an easement and not ownership of the property. 10 the county, the railroad, and allege the high water mark.” 9 The Winterses claim the county has only an easement and their ownership of the disputed property, as declared by the district court, is thus “subject to [the] County Road Right-of- Way (Riverview Road) and Railroad Right-Of-Way (Dakota, Minnesota, and Eastern Railroad Company.).” Even if this were to give rise to a factual dispute over whether the property was owned by the co