What Is the Public Trust?
Think of public parks, beaches, the waters and submerged lands beneath them, the fish, and the Great Lakes ecosystem. Who owns these public spaces and resources? The short answer is that you do, meaning you, the public.
This concept of public spaces and resources like water being owned and shared by the public is not a new one; in fact, it dates back at least 1,800 years, three centuries before the times of Roman Emperor Justinian, who re-codified Roman Law. It has been a part of English common law and our U.S. jurisprudence and democracy for centuries.
Under Roman law, the public’s right to use common resources like the waters and surrounding shores was paramount. “By the law of nature these things are common to mankind, the air, running water, the sea, and consequently the shores of the sea.” Under the 1215 Magna Carta, the British Crown was prohibited from transferring valuable coastal fisheries to private lords because the seabeds and tributary rivers belonged to the people. In 1821, a New Jersey Supreme Court adopted these principles for special public property common to all citizens, like navigable waters and the lands beneath them. This is what we now call the Public Trust Doctrine.
This legal concept has taken hold worldwide, protecting resources for the public ranging from beaches (below the ordinary high-water mark line) to navigable waterways and harbors, to wetlands and wildlife, to tributary streams and groundwater. And this idea of protecting public places for public uses, such as navigation, commerce, fishing, sustenance, drinking water, boating, swimming, and other recreational purposes, makes sense. In fact, a state’s sovereign ownership of and solemn duty to protect public trust waters and lands and the right of each person, as a member of the public, although shared with others, is inalienable, in the same way as each person is protected in their ownership and use of private property and right to breathe the air.
Making Sense of the Public Trust Doctrine
The Public Trust Doctrine holds that certain natural resources like navigable waters are preserved in perpetuity for the benefit of the public to use and enjoy. Applying a banking analogy, the people as sovereign own the public trust resources, and the state serves as a trustee to maintain and protect the trust or common trust resources for the benefit of current and future generations, who are the legal beneficiaries. Just as private trustees are judicially accountable to their beneficiaries, so too are state trustees in managing those public trust resources.
In addition, any private, public or commercial existing or proposed use, diversion or discharge cannot harm the waters of the Great Lakes by materially reducing the flow, changing the levels, or polluting the waters of the Great Lakes Basin. Furthermore, those who seek to use, divert or alter the waters of the Great Lakes Basin have the burden of proof to show they will not impair, pollute or harm the water. If they do not satisfy this burden of proof, the proposed action is not permitted under the public trust.
Lastly, under the public trust, the waters of the Great Lakes Basin can never be controlled by or transferred to private interests for private purposes or gain. Our rights to use the water of the Great Lakes Basin cannot be alienated or subordinated by our governments to special private interests; this means that all reasonable private use and public uses may be accommodated so long as the public trust waters and ecosystem are not harmed and paramount public right to public uses are not subordinated or impaired. Because many citizens are not aware that the public trust doctrine is part of their bundle of rights in our democracy, many of our leaders and special interests are ignoring and violating these principles.
Why Public Trust? | How Does it Work? | Public Trust Principles | Protected Uses
Hello, I hope working together to unite the people in how we depend on our trust with all levels of government. Transparency is vital when it comes to our water, air and land. Can we work together? Please visit OurPublicTrust.com and let me know?
United we the people are strong, divided we make little headway in TRANSPARENCY from any government around the world.
I live in York Region, Ontario Canada, while we do not have water shortages what we have is very irresponsible Municipal Government which allows fill importation sites in or adjacent to groundwater recharge areas. I would like help and any information you can provide on mitigating this situation before the upland fill sites contaminate a small farm property I manage for a disabled trust beneficiary and his children in order to ensure clean water is available for them and for future generations.
Any help is appreciated
I suggest you contact your Provincial agency responsible for environmental protection programs. They should have regulatory programs that control disposal operations that threaten groundwater resources.
Does Public Trust pertain to other navigable rivers or lake in Michigan ?
Example: Tittabawassee River and chain of lakes; Wixom,Sanford, Smallwood and Secord Lakes?
Or does it just pertain to the Great Lakes?
Does it include damage from Dams?
Thank You
Marsha,
The public trust doctrine applies to all navigable waters of Michigan, Great Lakes and inland lakes and rivers or streams. The state became vested with the title to all navigable waters and the lands beneath them up to the ordinary, now natural ordinary, high water market on admission to the Union–statehood in 1837, Once titled vested in the states, it did so subject to the public trust doctrine, thereafter defined by the courts of each state under the common law (or in some instances state legislators so long as statutory terms do not weaken the public trust and responsibilities or duties of the State on statehood.
The federal government reserved only a navigational servitude on those navigable waters or use of submerged lands under them. Otherwise, the extent and nature of public trust law is defined by the states. Under state law a lake or stream is navigable when it is determined that it was used for or was or is capable of floating logs, as determined by the timber log-floating era in Michigan.See Mich S Court decision in Bott v Department of Natural Resources. However, Michigan courts ruled that the title to the land under a lake or river belongs to the adjacent landowner, to the center of the lake or a river, sometimes a surveyor’s nightmare. Collins v Gerhardt; Nedtweg v Wallace (1926). Yet the water remains in the ownership and control of the state as trustee under the public trust doctrine, and the lands and riparian rights of the adjacent landowner of an inland lake or river are subject to the public trust doctrine.
Because of this, a riparian landowner’s title is considered a “qualified title,” because the ownership and use of the submerged lands under inland lakes and rivers are subject the paramount rights of citizens for navigation, fishing, boating, swimming, drinking water, and sustenance, The public trust, paramount rights of citizens, and duties of the state to prevent interference, subordination of the public trust, or impairment of public trust public rights and uses are perpetual and inalienable.
The waters and bottomlands of the Great Lakes are owned by the State in public trust for citizens for those public trust uses enumerated above.
Jim Olson
FLOW’s Founder & Senior Legal Advisor
Greetings.
Exactly which recreational activities are allowed up to the OHWM on the beaches of Lake Michigan?
At a local County Park, as well as other areas, there are signs (some posted by the County and some by residents along the lakeshore, that state that anything other than walking on the beach would be considered trespassing. After checking with the local DNR Customer Service, I was informed that, at least, fishing is allowed. Looking further into the matter, I cannot find where other activities are listed as allowed. At a minimum, I want to fish, unharassed by local law enforcement. At a maximum, I would like to navigate up and down the shoreline in a non-motorized boat, for multiple days, camping along the beach at night (like back when the Trust was adopted).
Regards,
Tim
What is the role of irrigation, food production, hydroelectriciy, mining, and other water uses necessary for life and economy, under the public trust doctrine?