This essay was first published on On The Commons (http://onthecommons.org)
Dotty E. LeMieux
“By the law of nature these things are common to mankind---the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitations, monuments, and buildings which are not, like the sea, subject only to the law of nations.”
The quote above is from the Justinian Code of 530 AD, on what has become known as the Public Trust Doctrine in jurisprudence. Justinian, the sage Roman Emperor who gave us much of what we now think of as “common law, had more to say on the subject:
“The seashore extends as far as the greatest winter flood runs up.” He wasn’t through yet: “The public use of the seashore, too, is part of the law of nations, as is that of the sea itself; and, therefore, any person is at liberty to place on it a cottage, to which he may retreat, or to dry his nets there, and haul them from the sea; for the shores may be said to be the property of no man, but are subject to the same law as the sea itself, and the sand or ground beneath it.”
As one can imagine, the conflicts between those in the cottages and drying sheds along the shore and the rest of the public wanting to gather “cockles and mussels, alive alive oh” in the same area grew nastier and more complex as development increased and seashore living became a luxury for the leisure classes, instead of a necessity for the fisher folk.
Public Trust lands are strictly speaking the lands under the oceans and other waterways and are held in trust by the state for the people as a whole. They cannot be bought or sold, except in rare situations where the public trust itself will be benefited.
Enter the Courts
The seminal case which established the scope of this doctrine in the U.S. is Illinois Central Railroad v. Illinois , 146 U.S. 387 (1892). The State of Illinois wanted to grant the entire Chicago waterfront to Illinois Central Railroad. The United States Supreme Court determined that Illinois held title to these lands in trust for the public. They could only convey title to other entities id that conveyance would actually improve the public’s rights. This was not the case with the Railroad’s plans for the land, and the State prevailed.
In 1988 the Supreme Court expanded this doctrine by holding that the principles underlying it applied to all water influenced by the ocean’s tide, regardless of whether it was navigable or part of a navigable body of water in the case of Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988).
Early California case law and legislation determined that the public trust lands along the seashore extended to the “mean high tide” mark, and that landowners could own the land under the trust waters, they could not keep the public off it, or impede the public’s use of those lands up to the mean high tide. As late as the early 1970’s, litigants were wrangling over the definitions of these lands:
“Public trust easements are traditionally defined in terms of navigation, commerce and fisheries. They have been held to include the right to fish, hunt, bathe, swim, to use for boating and general recreation purposes the navigable waters of the state, and to use the bottom of the navigable waters for anchoring, standing, or other purposes.” (Marks v. Whitney, 1971, 6 Cal. 3d 251, 259.)
This case also recognized that an important use of the tidelands was “the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area.” (Ibid. at 259, 260.)
So it’s not just all navigation and fishing rights as it was defined in the old days. In California, the State is ultimate arbiter of whether the Public trust lands are serving their public trust purpose. This has led to a collision of competing water interests, when land owners or public agencies with the right to appropriate water from navigable waterways, including rivers, streams and lakes have locked horns with environmentalists.
The most celebrated case on this issue may be the Mono Lake diversion. In the case of Mono Lake, the Los Angeles Department of Public Works asserted their rights to the waters of tributaries to the Lake for the purpose of supplying the vast metropolitan L.A. basin. These tributaries were not themselves “navigable” waters, but supplied the Lake. Diminishment of their capacity was soon felt on the Lake itself, which was in danger of being drained with resultant loss in habitat and wildlife dependent on it. By 1979, the Lake had sunk 43 feet and diminished in size from 83 to 60 miles. Salinity levels were rising leading to changes in migratory bird patterns.
This was by far the most expansive use of appropriative water rights, and continued unabated for years. The damage to the Lake was impossible to ignore however, and environmentalists brought suit to stop the practice.
The California Supreme Court clarified existing law that protection of the environment was a reasonable use, and that the appropriative use did not take precedent over that environmental protection. National Audubon Society v. Superior Court Alpine County (1983, 33 Cal.3d 419).
The Ebb and Flow of Water Rights
Today, we see threats to our Public Trust doctrine under attack in the attempted sales of water rights to private contractors. Private entrepreneurs are attempting to buy “excess water” from California rivers to transport in giant water bags to sell to places in need of more water. This year, popular mystery writer, Marcia Muller, used a water grab in the fictitious town of Cape Perdido in one of her thrillers The “waterbaggers” as the locals called them, were forced to fold their bags and go home after a series of unfortunate events revealed them to be more than simply greedy. A good read, based in fact.
The question arises, what is “excess water?” where the public trust is concerned. Can there be such a thing? An even trickier question is how to treat ground water, that water lying under ground, hidden from the public eye, but often feeding local water wells essential to human and agricultural consumption?
Traditionally, the public trust relates to navigable waterways only. In Mono Lake, the doctrine was found to extend to instances when diversion from a tributary to a navigable waterway damages that water, in that case, Mono Lake.
Ground water, that body of water lying under the ground, in springs for instance, is not so protected. Although ground and surface water are interconnected, there is no permit process for the use of ground water the way there is for surface water.
Consequently, it is often treated like a commodity, to be bought and sold. If you drink water out of a plastic bottle, chances are it comes from a groundwater source and it may be having a devastating effect on the environment.
Case in point: Recently the Nestle Corporation entered into a contract with the water agency in McCloud to sell ground water for bottling. Locals sued and the court ruled this spring that they needed to do an environmental impact report before entering into the contract. So the project is on hold for now. However, resolution of the issue of whether this use will impinge upon the public trust will have to wait for another day.
This is an ever-evolving area of the law and public policy. Many third world countries are now obliged to buy their own water from private corporations. In fact, the World Bank encourages privatization as an answer to dwindling water resources. NAFTA and the WTO consider water as a “good” and failure to treat it as such by signatory countries can result in trade sanctions. This is a devastating development as water resources are literally drying up in many places on the globe.
The commons are in trouble, not only in the third world but here at home. The City of Atlanta turned to water privatization as a way out of a failing public system. Only recently did the City take back control of its own water supplies. If the Atlanta experience is any indicator, people in this country are not willing to have the public trust sold to the highest bidder. Not yet anyway.
A Walk on the Beach
Earlier this summer, two state Supreme courts issued landmark ruling upholding the Public trust doctrine to shoreline areas. The Michigan Supreme Court’s ruling overturned seventy years of appellate court decisions in favor of private property rights over the public’s access to shoreline. In that case, the justices found that the public’s right to beachfront access extended to the “ordinary high water line,” not just to the actual water itself.
A similar outcome resulted from a case in New Jersey in which a private club tried to limit public access to the Beach. There, the court found that the public’s rights to enjoy the beachfront to the mean high tide did not depend on that line being under water, as contended by the property owners.
Property rights advocates are in a tizzy over these rulings, and urging the US Supreme court to overturn them.
In California, our rights to walk on the beach are still protected to the mean high tide line, whether on wet or dry ground. Here, the issue is mostly over access to the beach, with fierce battles being waged by property owners in tony beachfront communities like Malibu, not wanting the great unwashed to pass their multimillion dollar investment homes on the way to the public beaches.
In Seadrift, at Stinson Beach, property owners, in an attempt to stem the rising tide of storm washed seawater, built rock bulkheads without benefit of permits in the early 1990’s. After a long court battle with the Coastal Commission, the State caved into the owners’ demands and agreed to limit the public access. Frightened homeowners were terrified at the specter of scruffy beachgoers standing atop their seawall for a look at how the other half lives. Or so they claimed.
A group of citizens (represented by volunteer attorneys, the author of this piece among them) brought their own suit claiming an “implied dedication” to the entire beach, meaning the public had used the beach for so many years as if it were a public beach, that dedication for public use could be implied. This case, Citizens for Open Access to Sand and Tide, was heartbreakingly dismissed on the eve of trial for lack of standing. The court found that the earlier Coastal Commission settlement determined the public’s rights and no one else was allowed to sue to protect them. (See Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053)
Beach goers and their legal teams are avidly watching the two newly decided cases opening up access in Michigan and New Jersey (as well as a similar case working its way through the Washington State court system) with a certain amount of trepidation. Will a more conservative property rights oriented United State Supreme Court reverse the Michigan and New Jersey cases , and if so, what is the implication for California and the other states which already had a more expansive view of the Public Trust doctrine? That is the question on everyone’s minds.
Dotty E. LeMieux is an environmental attorney in Marin County California, working on land use issues in the public interest. You can read her updates on her blog at www.landusenews.blogspot.com.