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.