Max IMG_8265.JPG

[3]
Application of the
Public Trust Doctrine

 

 

Land Access
and Use

 

 

Natural Resources Law

 
 
 Harry Fenn: Savannah River, GA (1894)

Harry Fenn: Savannah River, GA (1894)

 
 

The Public Trust Doctrine been primarily significant in two areas: land access and use[1] (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.

Access to land is governed through land tenure systems. Land tenure is the relationship, whether legally or customarily defined, among people, as individuals or groups, with respect to land. Rules of tenure define how property rights in land are to be distributed within societies, and attending responsibilities and contraints, and enfolds the concept of the “bundle of rights”: use rights, control rights, and transfer rights.

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.

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. 

 
 Milo: first foray to the shore... 

Milo: first foray to the shore... 

 

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[2] are maintained with dual purpose for drinking and recreation purposes compatible to a management plan framed by the public trust.

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 historical case law, Joseph Sax discussed that the doctrine 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 stability 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.[3]

 

All levels of government have a “fiduciary duty”" 
to protect public trust assets.

 

Marked expansion of the doctrine through recent case law enfolds 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.

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.

 
 Austin: "Time to go!" doesn't go over too well... 

Austin: "Time to go!" doesn't go over too well... 

 

Endnotes

[1]  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.

[2]  Connecticut utilizes 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. 

 D. W. Moody:  New Orleans from the Lower Cotton Press  (1852)

D. W. Moody: New Orleans from the Lower Cotton Press (1852)

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.

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: however, 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.

 Danny: "cucumber cool"...

Danny: "cucumber cool"...

Stand Alone and Case Specific determination of “Traditional Navigable Waters”

The US Army Corps of Engineers (USACE) also defines “Traditional Navigable Waters” (TNW) through “Stand-Alone” determinations, and has published a study on that issue.   TNW was further codified through the Corp’s 2008 Memorandum.  Determination that a specific “waterbody” is a TNW can be made by a USACE Division Commander: based on formal report of findings by district engineers, accompanied by legal opinion of District counsel, and forwarded to Division Commander for final decision.  That decision will be evaluated specifically pursuant to § 33 CFR 329.14.

Stand Alone TNW designation is for a specific point or segment of a waterbody, where it is made independently of a regulatory permit action or Alliance for Justice and Democracy (AJD: Mauritania) recommendation.  In this instance careful consideration of upstream and downstream limits and lake borders is integrated into the decision, and specific boundaries are set, which can inform future AJDs.  The Stand Alone TNW does not expire and is not subject to administrative appeal process (that is: there would be no “affected party” to challenge the decision).

A “Case-Specific” TNW determination is specific to use for an AJD recommendation, and cannot be relied upon by the public to inform for future use.   It is only for that specific point or segment of waterbody, and cannot establish limits of navigation generally, as it is part of a specific request  for an AJD or permit authorization, and requires extensive documentation as part of the specific AJD that supports that the waterbody is a TNW.  It is thus appealable, and expires with the specific project.

Relevant factors for consideration can include, but are not limited to: 

  • Corps regulations (33 CFR 329); 
  • Prior determinations by the Corps (Section 10 studies or standalone TNW determinations); 
  • Documented use of commercial navigation for the waterbody at issue, including commercial waterborne recreation; 
  • Historic use of Traditional Navigable Water for commercial navigation, including commercial waterborne recreation; 
  • Physical characteristics of the waterbody that support the capability of navigation (size and depth, volume and frequency of flow, water source, etc.); 
  • Public accessibility to the waterway, including but not limited to public roads or access points, boat ramps, or similar.

Nationwide Permit Program

The USACE Nationwide Permit (NWP) program involves a streamlined permitting process for “general activities” that involve discharges of dredged or fill material in jurisdictional wetlands and waters.  To qualify for these general permits, the activities must cause “no more than minimal” adverse environmental effects and have minimal cumulative effects on the environment. The nationwide permits are reissued every five years.  Examples include bank stabilization, transportation permits, habitat restoration and enhancement, residential development, temporary construction, access, and dewatering, maintenance dredging of existing basins, commercial and institutional development, land-based renewable energy generation facilities, and water-based renewable energy generation projects.  


 Penny: who's just arrived?

Penny: who's just arrived?

 
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...
— Lisel Mueller: "What the Dog Perhaps Hears"
 

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.

 Biscuit: dozy contentment in an unexpectedly warm October sun... 

Biscuit: dozy contentment in an unexpectedly warm October sun... 

 

This essay is written for informational purposes, not as legal scholarship, researched from publicly available sources and government documents.  We strive to keep these links current, but occasions may arise wherein upgrades to State of Connecticut sites or editing of other portals by their domain owners may cause the links to mis-direct. If this happens, let us know and we will work to correct.