(Continued): What is the Public Trust and how does it affect beach access in Fairfield?
Copper: unaware of her "twin"
2] SCOPE OF THE PUBLIC TRUST DOCTRINE
Formally recognized in Connecticut and all coastal states, the Public Trust Doctrine is considered a mix of common law, state law, property law, and a public right.This broad foundation makes the doctrine malleable and reflective of current thinking—but in parallel, a fundamental privilige of all citizens that cannot be subjugated to referendum, and which, in some instances, has been written directly into state charters as a "constitutional right."
The Public Trust Doctrine is centrally important within state instream flow programs because it forms the foundation of resource management metrics for land, fishery and wildlife management agencies; frames the accountability, obligations, and opportunities these agencies must pursue; and which reflect the importance and dynamic interrelationships of biological, phsycial, and hydrological processes. The doctrine is effected through statutes, regulations, and government policies, which represent legal remedies available to all citizens. Although the concepts may overlap, it is important to distinguish that the concept of public interest not be considered the same as public trust.
The Public Trust Doctrine requires that waters remain usable for the purposes of navigation (including small boats), related commerce, and fishing; that is, those water-based benefits held in trust for the enjoyment of each state’s citizens. In some jurisdictions (local ordinances can be supplemented), the doctrine has been interpreted to cover aesthetic beauty, recreation, and preservation of natural conditions of submerged and riparian lands. Assessing whether the doctrine applies hinges on a test of navigability of a subject waterway.
Offshore Ownership Boundaries (click to enlarge)
The Equal Footing Doctrine.
Title to soil underlying navigable waters was retained in the crown, such that these lands could be maintained as "public highways," and the original thirteen states own the beds and banks underlying tidal waters as a matter of their conquest of England. Other states acquired ownership of these waterways upon their statehood pursuant to the Equal Footing Doctrine, under which all subsequent states were admitted with the same rights as the original thirteen (with title to tidal and navigable waters fixed at the date of its admission to the United States).
In Martin v. Lessee of Waddell (1842) 41 U.S.(16 Pet.) 367, 410 [10 L.Ed. 997], the US Supreme Court wrote that each of the original thirteen colonies, at the time of their independence, "...became themselves sovereign; and in that character hold the absolute right to all their navigable waters and the soils under them for their own
In 1953, Congress validated this equal footing right of the states to submerged lands beneath inland navigable waters by enacting the Submerged Lands Act, (67 Stat. 29, 43 U.S.C. §1301) which confirmed and established States' title to and interest in "lands beneath navigable waters within the boundaries of the respective States" (United States v. Alaska (1996) 521 U.S. 1, 5-6, and reaffirmed in 2005 (Alaska V. US). Each coastal state (exceptions: Florida and Texas) owns the territory extending three nautical miles (3.45 land miles) from the shore at mean low tide, and has jurisdiction to decide whether or not, and under what terms, to lease the territory for commerce (example: oil and gas exploration and recovery).
Mac: a moment's repose in the warm sun
The Federal Title Test for “Navagability.”
The federal title test for navagability is based on a waterway being receptive to navigation as a highway for public passage or commerce in its ordinary and natural condition at the time of statehood.In 1870, the Supreme Court set precedents for this test in The Daniel Ball (77 U.S. 557) establishing that a waterway that is navigable in fact is navigable in law(and thereby subject to obligations
of the public trust).
If water was "navigable" under the federal test at the time of statehood, title to the bed of the stream, lake, other waterway or tidelands passed to the state upon admission to the Union. From Oregon v. Riverfront Protection Ass’n (9PthP Cir.1982) 672 F.2d 792, 794:“…Those rivers must be regarded as public navigable rivers in law which are navigable in fact.And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water…”
Although the river must be navigable at the time of statehood, this only means that, at the time of statehood, regardless of the actual use (or lack thereof) of the river, the river must have been disposed to use as a highway for transportation and commerce.Because navigation may be difficult and at places interrupted (examples: rapids, waterfalls, or sandbars, which may require portaging around) does not render a stream un-navigable. The characterization of a river as a public highway is not determined by the incidence of its use, but by its capacity for being used, and neither is it critical that the stream should be capable of being navigated at all seasons of the year.
Lauffer & Lucy: alabaster radiance
The congressional authority to establish navigability (and subsequent federal title) differs slightly.The natural & ordinary condition of the body of water at time of statehood determines navigability for title; whereas, the key issue for commerce and congressional management purposes is determined by whether the body of water could bemade navigable by reasonable artificial improvements.
The Commerce Clause Test.
The Commerce Clause Test is an enumerated power of the US Constitution (Article I, Section 8, Clause 3), through which the Supreme Court has described three ways that navigability can be recognized: 1) present use or suitability for use; 2) suitability for future use with reasonable enhancement; or 3) past use or suitability for past use. The extent and manner of use of a navigable waterway is unimportant as long as it holds capacity for use as an avenue of transportation and commerce.
Still, propensity for use as a highway for commerce should not be limited to “exceptional conditions or short periods of temporary high water”: that is, condition of the waterway should be to ordinarily assure regularity and
predictability of usage.As such, waterways that are determined non-navigable under the federal title test may nevertheless qualify under the federal commerce clause test for navigability, and through its commerce power, the US retains a navigational easement in the navigable waters for the benefit of the public, regardless of who “owns” the riverbed.Therefore, private ownership of property in the beds of navigable streams is conditioned by the exercise of the public right of navigation and title to the banks and bed of a navigable stream up to the high water mark (private ownership is subject to a “navigational servitude” which is the public right of navigation for the use of the people at large).
Danny: first light explorer
State Title for Navigability.
Similarly, a waterway found not to be navigable
for commerce clause purposes can be navigable for state
title purposes. A river which is not of itself a highway for
commerce with other States or foreign countries (does not
form a highway by its connection with other waters,
and is only navigable between different places within
the State), is not a navigable water
of the US, but only a navigable water of the State.
A finding of state ownership to the bed of a navigable waterway cannot be construed as a private property taking because under the equal footing doctrine, it passed from the federal government directly to the state upon granting of statehood (it was never in private ownership).
Clarence: a purpose, in freedom...
Vesting title to a waterway in the crown pursuant to the English common law test for navigability assessed "tidality" (whether a waterway is subject to the "ebb and flow" of tides), and Connecticut recognizes both this test and the federal navigable-in-fact test (see:"Notable CT Cases,"and also, "Application of the Public Trust Doctrine"); as well as congressionally identified (commerce-based) tidelands.
As common law (see: "Summary: The Public Trust Doctrine,"above), interpretation of the Public Trust Doctrine has developed differently in each state, but with the underlying framework that invariably requires subject waters, lands, and dependent fishery and wildlife resources be managed for the benefit of each state’s citizens to ensure long-term sustainability for trust purposes.
The Public Trust Doctrine
represents a clear fiduciary responsibility of the state government to manage specific resources for the general, sustained benefit of its citizens; and which responsibility cannot be discharged or subjugated to public referendum: the so-called “will of the moment.”
The Role of the Trustee Within a trust relationship the trustee manages assets that belong to others. The trustee therefore must be accountable to the beneficiaries of the trust. The PTD requires accountability of government for its actions in managing publicly owned assets. The public, as beneficiary of the trust, has legal rights to enforce accountability upon its government, typically through litigation and less commonly via elections or ballot initiatives.
ENDNOTES:  The law differs among the 50 states but generally limits the rights of ocean front property below the mean (average/ordinary) high tide line (ordinary high water mark, or OHWM).Connecticut has interpreted and enforces the doctrine this way.Massachusetts and Maine (which share a common legal heritage: the Massachusetts Colonial Ordinance of 1641-47) represent the exception and are the most restrictive: allowing private ownership as far as the mean low water line but excepting for public rights to fishing, fowling and navigation with permits.Most states allow free access to the intertidal zone for walking, swimming, sunbathing, et al.The intertidal zone (also known as the foreshore, and sometimes referred to as the littoral zone:see illustration) is the area that is exposed to air at low tide and submerged at high tide (briefly: the area between tide marks).In Connecticut, this does not enfold the right to cross private (littoral) property to reach the shore, but does preclude private property owners from excluding the public below the OHWM. This elevation is obtainable from standard references, including the U.S. Army Corps of Engineers Tidal Flood Profile charts. The OHWM is calculated as the average high tide line calculated across a 14.1 year cycle.In practical terms, this means that neither property owners nor the public would likely to be able to precisely identify its specific location.Since it would be probable then, that the public would miscalculate this location, the burden of proof would therefore fall on the individual property owner to demonstrate both action of and intent to trespass above the OHWM in an issue of dispute.
Intertidal zone: the intertidal zone (also known as the foreshore, and sometimes referred to as the littoral zone) is the area that is exposed to air at low tide and submerged at high tide (area between tide marks).
[2, 3] (Dawson, 1999; Joseph L. Sax: The Public Trust in Stormy Western Waters, 1997); and (Blease, 1999).
 Hydrology is the scientific study of the properties, distribution, and effects of water on the earth's surface, in the soil and underlying rocks, and in the atmosphere.actions can be taken in the public interest that harm the public trust.
Louie: surveys his province with due authority
 State governments are generally charged with acting in the public interest, and duly strive to base most decisions and actions on satisfying this requisite. Public interest relates primarily to economic or value considerations, and as such, almost any action that has public value or generates economic gain is in the public interest. Public trust, in contrast, refers to matters of common property (such as water, fish, or wildlife) that is held “in trust” by a sovereign (the state of Connecticut) for the use and benefit of its beneficiaries (present and future generations, typically, but not excluded to, citizens of the state).Even though the concept of public interest forms the basis of and does complement public trust, it is quite possible (and common) that actions taken in the public interest may harm the public trust.
Allyson: the worry-er...
 Riparian (adj.): of, pertaining to, or situated or dwelling on the bank of a river or other body of water (riparian villas); and in law: a person who owns land on the bank of a natural watercourse or body of water.
 Shortly later, in Lessee of Pllard v. Hagan, (1845) 44 U.S. (3 How.) 212, 228-9 [11 L.Ed. 565], the Court affirmed that states entering the union after 1789 did so on an "equal footing" with the original states and so have analogous possession over these "soverign lands."
 Exceptions to the three-mile limit are Texas and the west coast of Florida, which for historical reasons own the seabed out to three leagues (10.5 statute miles) from the shore.
 Edgar Wesley Owen (1975), Trek of the Oil Finders, American Association of Petroleum Geologist, Memoir, 6
Emily: Tentative trekker
 The federal tests of navigability for determining title and defining Congressional authority differ in focus. However, both delineate whether the body of water was navigable in fact/in law as of the date a state came into the Union,not at the time the determination of navigability was made.
 (United States v. Utah (1931) 283 U.S. 64, 83 [51 S.Ct. 438, 440, 75 L.Ed. 844]; In re: The Montello (1874) 87 U.S. (20 Wall.) 430 [22 L.Ed. 391].)
 (Economy Light & Power Co. v. U.S. (1921) 256 U.S. 113, 122 [65 L.Ed. 847, 850].
 Appalachian Electric Power, 311 U.S (1940)
 Courts examining the threshold of whether a body of water is “navigable” and subject to the Trust Doctrine have evolved their analysis over time, one of the more notable eary tests being Wisconsin’s "saw log test," which reflected the state’s interest in protecting commercial navigation: if a stream was capable of floating a “saw log” to market, the body of water was navigable.
 United States v. Utah (1931) 283 U.S. 64; Gollatte v. Harrell (1989) 731 F.Supp. 453, 458
Hermione: simple and complete, carefree abandon...
 State of Montana v. United States (1981) 450 U.S. 544, 555; Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., (1977) 429 U.S. 363; U.S.v.Cress (1917) 243 U.S. 316; U.S. v. 412.715 Acres of Land, Contra County, Cal. (D.C. 1944) 53 F.Supp. 143.
 Sierra Pacific Power Company v. Federal Energy Regulatory Commission (9PthP Cir. 1982) 681 F.2d 1134,1138; The Montello (1870) 78 U.S. (11 Wall.) 411, 415.
 Attorney General v. Chambers, 17 Eng. Ruling Cases 555 (1854): “The principle which gives the shore to the crown is that th eland not capable of ordinary cultivation or occupation (vegetation cannot grow)… land which for the most part is not dry or maniorable.”
This essay is written for informational purposes, not as legal scholarship, researched from publicly available sources and government documents.
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Teddy: snow plowing
The Mongrel In Havenpool Harbour the ebb was strong, And a man with a dog drew near and hung, And taxpaying day was coming along, So the mongrel had to be drowned. The man threw a stick from the paved wharf-side Into the midst of the ebbing tide, And the dog jumped after with ardent pride To bring the stick aground.
But no: the steady suck of the flood To seaward needed, to be withstood, More than the strength of mongrelhood To fight its trecherous trend. So, swimming for life with desperate will, The struggler with all his natant skill Kept bouyant in front of his master, still There standing to wait the end.
The loving eyes of the dog inclined To the man he held as a god enshrined, With no suspicion in his mind That this had all been meant. Till the effort not to drift from shore Of his little legs grew slower and slower, And the tide still outing with brookless power Outward the dog, too, went.
Just ere his sinking what does one see Break on the face of that devotee? A wakening to the treachery He had loved with love so blind? The faith that had shone in that mongrel's eye That his owner would save him by and by Turned to much like a curse as he sank to die, And a loathing of mankind.
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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?