Extending the Public Trust Doctrine: A Framework for Protecting Culturally Significant Works of Art

Americans love property. Property rights in home ownership are a cornerstone of the American Dream. For some, the ability to acquire and use property enables personal independence. Former President Barack Obama once wrote that the ownership of private property is at the “very heart of our system of liberty”;1 the protection of property rights was a main objective motivating the establishment of the Constitution itself.

At the same time, property ownership can be a source of conflict, especially when dealing with finite natural resources. For example, some natural resources—like precious ecosystems, wildlife, waterways, and shorelands—are too valuable to be exploited by any one set of hands. The public trust doctrine plays an integral role in safeguarding these types of resources for future generations to enjoy.

But what about cultural resources? Are there certain social resources—like a unique, irreproducible, culturally significant piece of artwork—that merit the same protections?

The goals of this Essay are threefold: (1) to chart the public trust doctrine’s history and evolution in the United States, (2) to map this evolution and framework onto culturally significant artwork, and (3) to reflect on the attempts of several foreign nations to accomplish similar objectives to get a sense for whether such an application is feasible.

I.  The Public Trust Doctrine

A.  The Doctrine’s Function

The public trust doctrine is a common law principle that protects the private exploitation of certain natural resources. The owner of such resources holds them in trust for the people; therefore, the resources do not grant owners the same bundle of rights as other general or real property does. Generally, public trust resources must be held available for use by the general public, may not be sold, and must be maintained for certain types of uses. The role of the doctrine, therefore, is to incorporate limits and duties on owners in the stewardship of natural resources.

B. The Doctrine’s History and Evolution

The public trust doctrine is thought to stem from Roman law, which understood access to natural resources as an inalienable right, intrinsically valuable to the public. The concept appeared in the Magna Carta, King Henry III’s Charter of the Forest, and early cases in English law. When the United States at its founding incorporated English common law, it adopted the doctrine as well. Each of the original states thus became “trustee of the tidelands” for the common use of its people. 

Since then, the doctrine’s applicability and scope have steadily expanded. In 1842, the Supreme Court held that land under navigable waters is intended to be kept in public trust for the benefit of the community, rather than strictly as private property. Fifty years later, the Court added that all owners of public trust land—governmental or private—must serve the public trust. Nearly a hundred years later, the Court reaffirmed this stance.

In 1896, the Supreme Court expanded the public trust to include wildlife. Subsequently, the California Supreme Court held in 1983 that recreational and ecological values—such as protection of “the scenic views of the lake and its shore, the purity of the air, and the use of the lake for nesting”—were “among the purposes of the public trust.” This influential holding opened the door for courts to consider the doctrine more broadly in protecting public trust values and is often cited by advocates for the doctrine’s expansion.

C. The Doctrine’s Modern Usage

The public trust doctrine continues to evolve. Public trusts for natural resources exist today in every state in some form. States and courts have expanded the definitions of public uses and navigable waters, broadening the reach of the doctrine beyond navigation, commerce, and fishing to protect public uses such as the ability to swim and bathe at the beach. Courts have extended the doctrine to marine life, dry sand at the beach, rural parklands, historic battlefields, and archeological remains. Some have gone as far as to protect “scenic viewing.”

Despite its common law roots, the Doctrine in recent years appears more frequently in statutes and state constitutions, such as in those of Hawaii and North Carolina. The doctrine has increasingly transformed from a mere affirmation of sovereign authority over navigable waterways to a mechanism to enforce sovereign responsibility regarding protection of significant trust resources. 

The doctrine’s expansion and novel applications demonstrate its flexibility and capacity to address difficult collective resource problems. In the wildlife management sector, it serves as an “alternative framework . . . that is more compatible with modern ecological and societal goals.” It also has been lauded as a mechanism to protect and expand New York’s Forest Preserves.

With a little creativity, then, the doctrine can also be used to protect culturally significant works of art.

II.  Mapping the Public Trust onto Culturally Significant Artwork

This section argues that constraining the public trust to natural resources alone is unnecessarily limiting for three reasons: (1) the doctrine’s principle as a means to promote national wellbeing serves the preservation of cultural objects and (2) the doctrine’s application to art comports smoothly with established property law tenets.

A.  The Doctrine Is Well Suited to Promote National Wellbeing by Preserving Culturally Significant Art

The doctrine’s recent developments value the protection of resources for their aesthetic beauty, rather than merely their utility. Already, “most States have expanded the protected public rights in water to include a wide range of values, including aesthetics.” The Wisconsin Supreme Court has noted that “the enjoyment of scenic beauty is a public right.” Seeing beautiful natural scenery is of great intrinsic importance to the public, and some have argued that the doctrine’s dynamic notions of sovereign responsibility are capable of protecting “scenic, historic, and aesthetic value” in addition to nature.

To venture from “natural scenery should be protected for its aesthetic beauty” to “the doctrine should apply to beautiful artwork” is a logical step.

But it is not enough to say that all beautiful art should be protected by the Doctrine, just as not all beautiful natural resources are protected. The subject’s cultural significance plays a large role. At its inception in English common law, the Doctrine protected the “traditional triad” of waterway uses: navigation, fishing, and commerce. These uses were so crucial to the health and wellbeing of the nation—two fundamental tenets of the doctrine—that their protection was necessary for national flourishing.

Analogously, the doctrine should extend to the preservation of objects of cultural significance: a pursuit the Supreme Court has deemed “an entirely permissible governmental goal.” Importantly, the health of a nation is measured in part by “social well-being.” A strong cultural identity provides a crucial sense of belonging and can significantly improve mental health. In fact, scientific studies have shown a positive association between cultural participation and improved mental health, well-being, and social relations. 

B.  Property Law Would Easily Accept This Expansion

Extending the Doctrine to culturally significant artwork both preserves aesthetic beauty and enhances cultural wellbeing. But would that extension disrupt established property law norms?

Likely not. 

The public trust doctrine requires that trustees of public resources prevent their destruction. Although the right to destroy property is inherent in an owner’s bundle of rights, it is not without limits. Courts have recognized that an individual property owner’s right to destroy may at times yield to the community’s interests at large. In this vein, some property is “so connected to a community’s identity that the community’s right to preserve its heritage may trump a property owner’s right to destroy.” Professor Joseph Sax, a leading voice in property law, has advocated for “depriving owners of the right to destroy works of art, literary works,” and other items of cultural significance.2 It would be on par for a court to say that owners of public trust artworks may not destroy them.

The doctrine also has been formulated to guarantee the public reasonable access to public trust resources. For instance, courts have held that the public must have access to dry sand areas, even if privately owned, in order to use the public trust foreshore and sea. In a separate, comparable application, the government may require public access to certain types of private property by means of public accommodation law, which grants the public full and equal enjoyment of places of public accommodation. The premise is simple: If you operate a public accommodation, a business crucial to American socioeconomic culture, you must welcome business from all people. Analogously, if you own a culturally significant piece of American art, the doctrine would specify that you must steward the piece in a way that permits access to all people.

III.  Previous Efforts to Expand the Doctrine to Culturally Significant Art

Most domestic efforts to expand the public trust doctrine to artwork thus far have appeared in the museum context. Because museums perform an important cultural role in educating the public and preserving significant artworks, museum deaccessioning and disposing of collection pieces will often raise public trust questions. The American Alliance of Museums charges museums with the duty to steward their collections so the public can study, enjoy, and learn from them, extending the notion of public trust to both natural and cultural resources. Even when commentators suggest that the use of “public trust” in the museum space differs from the governmentally-driven public trust doctrine, there is an underlying acknowledgement that art “uniquely represents our shared aesthetic, intellectual, and cultural heritage.”

However, courts have yet to extend the doctrine to artwork. Some have explicitly declined to be the first to do so: One California court wrote, “[N]o court has ever held that this wide range of protected uses extends to viewing public art. We decline to be the first. While we have no doubt that public art is a valuable resource that should be available to all members of the public, it is not a natural resource.” Most recent American jurisprudence expanding the doctrine has occurred within the environmental protection context, applying it to the atmosphere, agricultural pollution of rivers and lakes, and undomesticated birds and wildlife.

While domestic efforts to apply the doctrine to culturally significant art have yet to gain sufficient traction, public trust philosophy has risen to prominence internationally. A glance into several international case studies helps provide footing for application of the doctrine in the United States.

IV.  International Applications

The public trust doctrine is a development of American law, not international law. However, as one scholar writes, “public trust principles now appear in legal systems throughout the world, including India, South Africa, Pakistan, Kenya, Brazil and Canada.” Notably, several European approaches to preservation of culturally significant art lend insight into how American courts and legislatures may address the issues discussed above. I consider three approaches here: the United Kingdom’s (U.K.’s) Waverley Criteria, Italy’s Cultural Heritage Code, and Germany’s Act on the Protection of Cultural Property.

A. The United Kingdom and the Waverly Criteria

In the U.K., pursuant to the Export Control Act of 2002, Parliament introduced the Export of Objects of Cultural Interest (Control) Order, under which any regulated object must be licensed by the Secretary of State in order to leave the country. Objects of important, U.K.-based, cultural significance—like theoretical computer scientist Alan Turing’s groundbreaking wartime research, a gold ring owned by renowned author Jane Austen, or Queen Victoria’s wedding coronet—may be subject to a temporary export bar in order to give the government an opportunity to keep “national treasures” in the country. In determining what qualifies as a worthy cultural object, a special Reviewing Committee takes into account three questions, known as the Waverley Criteria: (1) is the object closely connected with U.K. history and national life; (2) is it of outstanding aesthetic importance; and (3) is it of outstanding significance for the study of some branch of art, learning, or history? If an object meets even one of these three criteria, the Committee recommends that the export license be deferred until institutions or individuals within the U.K. have the chance to raise funds and purchase the item.

B. Italy and the Cultural Heritage Code

In Italy, pursuant to articles of the Cultural Heritage Code, certain categories of goods cannot be exported permanently outside of Italian territories. These categories include “goods with an artistic, historical, archaeological and ethno-anthropological interest” or certain goods “classified as cultural goods by the Ministry of Cultural Heritage.” Italy imposes both a time threshold and a value threshold in determining whether works are culturally significant. Article 3 of the Code explicitly states that the goal of protecting cultural heritage objects is “ensuring the protection and conservation of the aforesaid heritage for purposes of public enjoyment.”

C. Germany’s Act on the Protection of Cultural Property

In 2016, Germany completed a comprehensive reform of its legislation on the protection of cultural heritage objects. The culmination of these efforts, the Act on the Protection of Cultural Property (Kulturgutschutzgesetz), protects objects of “artistic, historical or archeological value” from “removal from the federal territory.” In classifying objects as cultural property, Germany conducts an inquiry similar to the U.K.’s Waverley Criteria, aiming to “secure and preserve vital testimonies to humanity’s past and ensure that they remain available to future generations and publicly accessible.” Notably, Germany recognizes that, besides inherent aesthetic value, “works of art and cultural objects serve a communicative role [ ] in respect of a country’s own cultural self-understanding” and that “protecting these objects invariably benefits the general public.”

Conclusion

These three international approaches demonstrate a broad sentiment: Art, insofar as it represents a shared culture, historical archive, or national treasure, is worth protecting. Although each approach has shortcomings—such as interfering with the free art market or resulting in locked up artwork inside state vaults—these examples serve as a reference point for American courts considering how to apply public trust ideals to culturally significant art. 

American courts already utilize the doctrine to hold governments accountable for the “broad public interest in preserving nature . . . as a trust for future generations.” There is more to our collective history than the land and resources comprising it. There is more to be protected than navigable waterways and dry sand beaches. Culturally significant art has a story to tell: a story of our cultural identity, shared history, and the community that unites us. The public trust doctrine, nestled neatly within established tenets of property law, provides a viable pathway to safeguard that story for future generations. 

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Simon T. Whiteman is a J.D. Candidate at The University of Chicago Law School, Class of 2027.

• Barack Obama, The Audacity of Hope: Thoughts on Reclaiming the American Dream 149–150 (2006).
• Joseph L. Sax, Playing Darts with a Rembrandt: Public and Private Rights in Cultural Treasures (2001).