(Essay Continues): What is the “Public Trust” and how does it affect beach access in Fairfield?
A moment to relax, & enjoy the lure of the sea
3] APPLICATION OF THE PUBLIC TRUST DOCTRINE
The Public Trust Doctrine been primarily significant in two areas: land access and use (modification of natural environments or wilderness by humans into "built environments"); and natural resources law. Natural resources law enfolds land, wildlife, air water, and other resources, and is regulated by common law, statutes, treaties, conventions, regulations, and policies.
Natural resources laws are purposed for reducing or minimizing the impact of human activity: both on the environment (as a general societal goal), and on humankind itself. The doctrine has also been used to provide public access across, and provide for continued public interest in, those areas where land beneath tidally influenced waters has been filled. In some cases the uses of that land have been limited (for example, to transportation), and at other times, there has been provision ensuring public access across the land at low tide.
Cosmo: the sheriff is back in town
The doctrine has been utilized to assert public interest in oil resources discovered on lands subject to tides (in Mississippi and California); and has also been used to circumvent efforts to assert claims of private ownership over fish stocks and crustacean beds. The determination as to whether a body of water (examples: a river, canal, or lake) is subject to the Trust is determined by a test of navigability (see The Public Trust Doctrine: Scope). Such waterway is navigable if it is deep, wide, and slow enough for a vessel to pass.
Navigable waters of the United States are defined in 33 CFR 329 as waters that are "subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce while the waterway is in its ordinary condition." In most states, lakes and streams that are
navigable-in-fact are maintained with dual purpose for drinking and recreation purposes compatible to a management plan framed by the public trust.
Milo: first foray...
Held “In Trust”:
in the best interest of all the state’s citizens...
Pursuant to the doctrine, courts and state legislatures have recognized the basic obligation of the sovereign to act in the best interests of its citizens, and developed legal authorities for states, across a range of circumstances, to control the management and use of fishery, wildlife, and water resources that are held in trust for the public.
Reviewing the case law, Joseph Sax discussed that the PTD is neither unbendable nor immobile, and is used to define and meet the contemporary needs of the public. Flexibility, he argued, is considered its primary strength, and must be, as capability to respond to contemporary concerns assures its effectiveness for future generations. Other dynamics he cited include the general public’s necessary understanding that it describes a legal right (citizens would have standing in the courts to bring actions for the protection of the public trust), and that it be enforceable against the government. Under Sax’s vision, citizens would take the lead in environmental law by balancing the general interest of the public against government, business, and individuals who threaten harm
to the environment.
Marked expansion of the doctrine through recent case law enfold concerns over wildlife habitat, environmental protection from development, recreational activities and historic monuments, scenic beauty, diversion of water for domestic, industrial, and agricultural purposes, and more. Ecological protection of lands in their natural state as a public interest was asserted by the CA Supreme Court in Marks v. Whitney, (2 ELR 20049: 1971). In that opinion, the court opined that the needs of the public may change, and as such the state was not bound to protect just the traditional interests addressed by early case law. Moreover, any member of the public held standing to raise the issue of vulnerability of lands subject to the trust; and the court itself might determine the public trust issue on its own motion, whether raised by the parties or not.
Leyla: innocent luminescence
Ecological protection of lands in their natural state as a public interest was asserted by the CA Supreme Court in Marks v. Whitney, (2 ELR 20049: 1971). In that opinion, the court opined that the needs of the public may change, and as such the state was not bound to protect just the traditional interests addressed by early case law. Moreover, any member of the public held standing to raise the issue of vulnerability of lands subject to the trust; and the court itself might determine the public trust issue on its own motion, whether raised by the parties or not.
In 2013, the PA Supreme Court struck down the Pennsylvania (PA) Oil and Gas Act (“Act 13”) through a powerful embrace of the doctrine in Robinson Twp. v. Commonwealth J-127A-D-2012. A state statute that promoted fracking, Act 13 became a theatre of war over the controversial practice of hydraulic fracturing to release natural gas from shale deposits generally located thousands of feet below aquifers. Decrying the Act as overbroad, in particular supporting environmental exploitation in a geological formation known as the Marcellus Shale, the court held that the air, groundwater, and other resources are held in public trust and that all levels of government have a fiduciary duty to protect these assets.
ENDNOTES (this page):
 Connecticut utlizes both the federal standard of navigability but also the navigable-in-fact test.See: Enfield Toll Bridge Co. v. Hartford N.H. R. Co., 17 Conn. 40, 1845 WL 431, at *5 (Conn. 1845):In deciding the issue of whether the Connecticut River was to be considered a public river (and thus covered by the trust), the CT Supreme Court adopted the navigable-in-fact test and concluded that the CT River is navigable even above tide water influence. In this test, a river is deemed navigable in fact if it is used or subject to being used in its natural condition as a highway for commerce on which trade or travel are or may be conducted in the commonplace modes of travel on water.Similar to the federal test of navigability (a broader commerce test), it is the potential for use, not the actual scope or manner, that determines the navigability of a waterway.
Oreo: assessing the competition
A waterway may be navigable-in-fact even if it would be impossible to navigate against its current and even if the capacity of the waterway to bear navigation is not continuous over time. As long as the capability necessary to support navigation sustains for a adequate length of time to make the stream useful as a highway for trade, travel or transport, qualifications as public trust water exists.Further, a waterway may be navigable in fact even though it enfolds intermittent rapids, falls, dams or other natural or man-made obstructions.
If a waterway is navigable-in-fact, the right to public navigation sanctions the public to walk a vessel around such obstacles or to carry around such obstacles on the shore, even over private property above the mean (ordinary) high water mark (OHWM), so long as the portage is by the most direct and least intrusive safe route possible, and the purpose is directly related to navigation.If a waterway (such as a river) is physically navigable, it is legally navigable, or navigable-in-law:no court or agency has to designate it as such.This right to navigation does not authorize the public to go on private land above the mean high water mark for purposes not directly related to navigation, (examples: hunting, camping, or hiking); nor may the public cross private property for the purpose of access to or egress from a navigable waterway.
Waterways that are affected by the tides are considered to be navigable in law and the public automatically has a right to navigate on these waters, regardless of who owns the bed or if the waterway is posted.It is a misconception that only certain substantial rivers, capable of navigation by motorized ships carrying commercial freight, are legally navigable, or that other rivers, where they flow through private land, are “owned” by adjacent landowners, and that while the public may “run” such rivers in certain cases, they may not touch the banks.Even rivers that are physically navigable only by canoe, kayak, and raft are still legally navigable, and courts have further ruled that commercial recreational river trips qualify as commerce. Because they are navigable-in-law, such rivers are held in trust for the public by the states, and the land is public land up to the OHWM, available for walking, fishing, resting, camping, and other non-destructive visits.
Another common mistake is the belief that the state "owns" the river and the land up to the OHWM, and can thus sell or give away the riverbed or its banks to private owners for various projects or private uses.The state does not actually own the river, it holds it in trust for the public for navigation, recreation, and fisheries. The state is obligated to preserve the river for these public benefits.
Ace: taking pause... who's just arrived?
 Land use refers to modification of natural environments or wilderness by humans into "built environments" (pasture, grazing land, and settlements), the effect of which is deforestation of temperate regions: which in modern times has led to soil degradation and erosion, soil salinization(excess accumulation of salts), and desertification(deterioration of land quality due to loss of vegetation and soil moisture; example: "urban sprawl").Change through land use, and adjunct reliance on uncontrolled consumption of fossil fuels, are the major man-made sources of carbon dioxide, a prevailing greenhouse gas.
Municipal land use regards zoning of parcels for approved uses and modifications in land use.Management of land use practices impact natural resources (water, soil and the nutrient balance therein, and flora & fauna), and land use information can be used to develop solutions for natural resource management issues.Land degradation needs to be viewed not in isolation as it regards an individually damaged parcel or area; but as change that may affect not only contiguous land, but the totality of the environment as a combination of individual and related and integrated environmental systems and subsystems.In the absence of comprehensive land use planning, or the orderly execution of land use planning, land degradation is exacerbated.When financial or legal incentives prevail that may lead to poor land use decisions, or central planning is pursued that over-utilizes land resources (example: public works projects that prioritize time, cost, or a combination thereof), valuable ecosystems may be irretrievably lost.
 Sax, Joseph L., The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, Environmental Law Review, NY: Clark Boardman, 1970; Annear, T.C.: Chapter 2, The Public Trust Doctrine, Instream Flows for Riverine Resource Stewardship; 2002; Stenehjem, W., ND Atty. Gen. Office Letter Opinion 2005-L-01, (2005); Henquinet, J.W. & T. Dobson, NYU Environmental Law Journal v. 14, The PTD and sustainable ecosystems, case study (2006).
This essay is written for informational purposes, not as legal scholarship, researched from publicly available sources and government documents.
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Sam & Mac: convivial competition
What’s out there?
Every species has its own perceptual world, which is called the species’ Umwelt.
It is a German word that is most commonly translated as
Jakob von Uexküll devised the term in 1907 to describe the phenomenon of organisms having different sensory experiences (even if they live in the same environment) because of varying capabilities of perception.
—Lisel Mueller: What The Dog Perhaps Hears
If an inaudible whistle blown between our lips can send him home to us, then silence is perhaps the sound of spiders breathing and roots mining the earth; it may be asparagus heaving, headfirst, into the light and the long brown sound of cracked cups, when it happens.
Yogi: ardent adventurer...
We would like to ask the dog
if there is a continuous whir
because the child in the house keeps growing,
if the snake really stretches full length without a click
and the sun breaks through clouds
without a decibel of effort;
whether in autumn,
when the trees dry up their wells,
there isn't a shudder too high for us to hear.
What is it like up there
above the shut-off level of our simple ears? For us there was no birth cry,
the newborn bird is suddenly here,
the egg broken, the nest alive, and we heard nothing when the world changed.
You can brighten the long, lonely day of a needy dog:consider volunteering at a shelter. Your used but servicable linens, towels, bathmats, or cushions can provide comfort while he waits. Need help affording veterinary care? click HERE • Find low-cost spay neuter services: click HERE
Food & Safety Recalls/FDA Advisories for Dog Foods: click HERE
To think about: American taxpayers spend more than $1 billion annually to fund municipal animal shelters.
In those facilities, 14,000 animals are killed each day, often brutally: even in archaic gas chambers...
many within merely hours of their arrival: why are they called shelters?