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The public trust doctrine is the principle that the sovereign holds in trust for public use some resources such as shoreline between the high and low tide lines, regardless of private property ownership. [1]
The ancient laws of the Byzantine Emperor Justinian held that the sea, the shores of the sea, the air and running water were common to everyone. [2] The seashore, later defined as waters affected by the ebb and flow of the tides could not be appropriated for private use and was open to all.
This principle became the law in England as well.[ citation needed ] Centuries later, Magna Carta further strengthened public rights. At the insistence of English nobles, fishing weirs which obstructed free navigation were to be removed from rivers.
All fish-weirs are in future to be entirely removed from the Thames and the Medway, and throughout the whole of England, except on the sea-coast.
These rights were further strengthened by later laws in England and subsequently became part of the common law of the United States. The Supreme Court first accepted the public trust doctrine in Martin v. Waddell’s Lessee in 1842, confirming it several decades later in Illinois Central Railroad v. Illinois , 146 U.S. 387 (1892). In the latter case the Illinois Legislature had granted an enormous portion of the Chicago harbor to the Illinois Central Railroad. A subsequent legislature sought to revoke the grant, claiming that original grant should not have been permitted in the first place. The court held that common law public trust doctrine prevented the government from alienating the public right to the lands under navigable waters (except in the case of very small portions of land which would have no effect on free access or navigation).
The public trust applies to both waters influenced by the tides and waters that are navigable in fact. The public trust also applies to the natural resources (mineral or animal) contained in the soil and water over those public trust lands.
This doctrine has been primarily significant in two areas: land access and use, and natural resource law.
The doctrine is most often invoked in connection with access to the seashore. In the United States, the law differs among the fifty states but in general limits the rights of ocean-front property owners to exclude the public below the mean high tide line.
Massachusetts and Maine (which share a common legal heritage) recognize private property ownership to the mean low tide line—but allow public access to the seashore between the low and high tide lines for "fishing, fowling and navigation," traditional rights going back to the Colonial Ordinance of 1647. [3] Maine's Supreme Court in 2011 expanded the public trust doctrine by concluding fishing, fowling and navigation are not an exclusive list; the court allowed the general public to cross private shoreline for scuba diving. [4]
The public trust doctrine also finds expression in the Great Pond law, a traditional right codified in case law and statutes in Massachusetts, Maine, and New Hampshire. [5] The state is said to own the land below the low water mark under great ponds (ponds over ten acres), and the public retains in effect an access easement over unimproved private property for uses such as fishing, cutting ice, and hunting. [6]
In Oregon, a 1967 "Beach Bill" affirmed the state's public trust doctrine, and the right of the public to have access to the seashore virtually everywhere between the low and high tide marks. In California the situation is more complicated: private landowners often try to block traditional public beach access, which can result in protracted litigation. [7] Freshwater use rights have also been subject to litigation in California, under the public trust doctrine. [8]
In England and Wales, there is no general public right to access the foreshore. Most land between the high and low water marks is owned by the Crown Estate, who permit access for recreation, but the courts confirmed in 1821 in the case of Blundell v Catterall that there is no right of access such as the public trust doctrine. [9] The only public right over the foreshore is to pass over it, on water in a boat, for the purposes of fishing. [10]
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 (to transportation, for instance) and in others, there has been provision for public access across them.
The doctrine has been employed to assert public interest in oil resources discovered on tidally influenced lands (Mississippi, California) and has also been used to prevent the private ownership of fish stocks and crustacean beds.
In most states in the United States, lakes and navigable-in-fact streams are maintained for drinking and recreation purposes under a public-trust doctrine.
In some countries,[ which? ] the public trust doctrine has been applied to provide environmental protection to natural resources in order to uphold human rights. [11] A recent study also demonstrated that public trust doctrines are transnationalizing. [12]
[The] Maine Supreme Judicial Court affirmed ... that the public has a right to walk across [privately owned] inter-tidal lands to reach the ocean for purposes of scuba diving.
The freedom to roam, or "everyman's right", is the general public's right to access certain public or privately owned land, lakes, and rivers for recreation and exercise. The right is sometimes called the right of public access to the wilderness or the "right to roam".
Water resources law is the field of law dealing with the ownership, control, and use of water as a resource. It is most closely related to property law, and is distinct from laws governing water quality.
Riparian water rights is a system for allocating water among those who possess land along its path. It has its origins in English common law. Riparian water rights exist in many jurisdictions with a common law heritage, such as Canada, Australia, New Zealand, and states in the eastern United States.
Water right in water law is the right of a user to use water from a water source, e.g., a river, stream, pond or source of groundwater. In areas with plentiful water and few users, such systems are generally not complicated or contentious. In other areas, especially arid areas where irrigation is practiced, such systems are often the source of conflict, both legal and physical. Some systems treat surface water and ground water in the same manner, while others use different principles for each.
A body of water, such as a river, canal or lake, is navigable if it is deep, wide and calm enough for a water vessel to pass safely. Such a navigable water is called a waterway, and is preferably with few obstructions against direct traverse that needed avoiding, such as rocks, reefs or trees. Bridges built over waterways must have sufficient clearance. High flow speed may make a channel unnavigable due to risk of ship collisions. Waters may be unnavigable because of ice, particularly in winter or high-latitude regions. Navigability also depends on context: a small river may be navigable by smaller craft such as a motorboat or a kayak, but unnavigable by a larger freighter or cruise ship. Shallow rivers may be made navigable by the installation of locks that regulate flow and increase upstream water level, or by dredging that deepens parts of the stream bed.
The intertidal zone or foreshore is the area above water level at low tide and underwater at high tide: in other words, the part of the littoral zone within the tidal range. This area can include several types of habitats with various species of life, such as seastars, sea urchins, and many species of coral with regional differences in biodiversity. Sometimes it is referred to as the littoral zone or seashore, although those can be defined as a wider region.
Lansing v. Smith, 4 Wend. 9 (1829), is a case decided by the Court of Appeals of New York which is relevant to eminent domain law. The case held that:
People of a state are entitled to all rights which formerly belong to the King, by his prerogative.
The Rivers Access Campaign is an ongoing initiative by the British Canoe Union (BCU) to open up the inland waterways of England and Wales to the public. Under current English and Welsh law, public access to rivers is restricted, and only 2% of all rivers in England and Wales have public access rights.
Navigable servitude is a doctrine in United States constitutional law that gives the federal government the right to regulate navigable waterways as an extension of the Commerce Clause in Article I, Section 8 of the constitution. It is also sometimes called federal navigational servitude.
Robert Gillespie James is a senior United States district judge of the United States District Court for the Western District of Louisiana, and was one of the judges involved in a 2006 water rights legal case, Normal Parm v. Sheriff Mark Shumate.
The Supreme Court decision in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892), reaffirmed that each state in its sovereign capacity holds title to all submerged lands within its borders and holds these lands in public trust. This is a foundational case for the public trust doctrine. The Supreme Court held a four to three split decision that the State of Illinois did not possess the authority to grant fee title to submerged lands where doing so would preclude exercise of the public right to commercial navigation and fishing in navigable waters.
A great pond in the United States is a pond or lake that is held in trust by the state for public use. Generally, any natural body of water that is larger than 10 acres (40,000 m2) in size is public water. In certain New England states, this legal definition exists at both common law and statutory law.
Oswego Lake is a lake in Clackamas County, Oregon that is completely surrounded by the city of Lake Oswego. Though the lake is naturally occurring, it has been significantly altered because of the concrete dam that has increased its size to 431.7 acres (1.747 km2). The United States Geological Survey records the official name as Lake Oswego and, because of its artificially increased size, classifies it as a reservoir. To distinguish it from the city, however, the lake is usually called Oswego Lake.
The Montana Stream Access Law says that anglers, floaters and other recreationists in Montana have full use of most natural waterways between the high-water marks for fishing and floating, along with swimming and other river or stream-related activities. In 1984, the Montana Supreme Court held that the streambed of any river or stream that has the capability to be used for recreation can be accessed by the public regardless of whether the river is navigable or who owns the streambed property. On January 16, 2014, the Montana Supreme Court, in a lawsuit filed by the Public Land/Water Access Association over access via county bridges on the Ruby river in Madison County, Montana reaffirmed the Montana Stream Access Law and the public's right to access rivers in Montana from public easements.
The Oklahoma Water Resources Board (OWRB) is an agency in the government of Oklahoma under the Governor of Oklahoma. OWRB is responsible for managing and protection the water resources of Oklahoma as well as for planning for the state's long-range water needs. The Board is composed of nine members appointed by the Governor with the consent of the Oklahoma Senate. The Board, in turn, appoints an Executive Director to administer the agency.
Water law in the United States refers to the Water resources law laws regulating water as a resource in the United States. Beyond issues common to all jurisdictions attempting to regulate water's uses, water law in the United States must contend with:
Right of way is the legal right, established by grant from a landowner or long usage, to pass along a specific route through property belonging to another. A similar right of access also exists on land held by a government, lands that are typically called public land, state land, or Crown land. When one person owns a piece of land that is bordered on all sides by lands owned by others, an easement may exist or might be created so as to initiate a right of way through the bordering land.
National Audubon Society v. Superior Court was a key case in California highlighting the conflict between the public trust doctrine and appropriative water rights. The Public Trust Doctrine is based on the principle that certain resources are too valuable to be privately owned and must remain available for public use. In National Audubon Society v. Superior Court, the court held that the public trust doctrine restricts the amount of water that can be withdrawn from navigable waterways. The basis for the Public Trust Doctrine goes back to Roman law. Under Roman law, the air, the rivers, the sea and the seashore were incapable of private ownership; they were dedicated to the use of the public. In essence, the public trust doctrine establishes the role of the state as having trustee environmental duties owed to the public that are subsequently enforceable by the public. There is judicial recognition of this, dictating that certain rights of the public are key to individual common law rights. Judicial recognition of the public trust doctrine has been established for tidelands and non-navigable waterways, submerged land and the waters above them, and preservation of a public interest.
Moody Beach is a coastal neighborhood and private beach located in Wells, Maine, with about 100 homes adjoining the beach. Moody Beach has a blend of year-round and summer residents, as well as short-term vacationers from around New England and Quebec. The coastline stretches about a mile long, from Ogunquit Beach to Moody Point on Ocean Avenue.
In Re the Ninety-Mile Beach was a decision of the Court of Appeal of New Zealand holding that Maori could not hold title to the foreshore because of the effect of section 147 of the Harbours Act 1878 ; and because investigation of title to land adjacent to the sea by the Māori Land Court had extinguished rights to land below the high water mark. The decision was overturned in 2003 by Ngati Apa v Attorney-General.
