Jim Olson is FLOW’s Founder, President, and Legal Advisor
By Jim Olson
In the end, their legal duty under public trust law, and the clear and present danger from the anchor strikes and currents of the 67-year-old dual oil pipelines, left only one choice for Michigan Governor Gretchen Whitmer and her Department of Natural Resources Director Daniel Eichinger: Revoke and terminate the easement allowing Line 5 to occupy the Straits of Mackinac, as they did on November 13 in a strong and necessary action.
The Governor and other top state officials have a duty as trustees under the Public Trust Doctrine to prevent unacceptable harm to the Great Lakes and the public’s right to use them. This duty lasts forever. By the very nature of its easement to use public trust bottomlands and waters in the Straits, Line 5-owner Enbridge accepted the easement subject to the state’s paramount perpetual duty to prevent injury to the public trust in the Great Lakes. The dual pipelines and conditions in 2020 surrounding it are not the same as the original understanding of engineers and State officials back in 1953, when Line 5 was installed in the open waters of the Straits connecting Lake Michigan and Lake Huron. Under public trust law, the Governor and state officials’ hands are not tied by what state officials understood and did 67 years ago.
Public trust law and circumstances would condemn any state leader, elected or appointed, for gross negligence and reckless breach of their trust duty if he or she failed to take action. When Michigan joined the Union in 1837, it took title to all navigable waters, including the bottomlands and waters of the Great Lakes. It took the title subject to an irrepealable public trust duty to prevent alienation of this title for private purposes and to prevent impairment of these trust lands and waters from impairment in perpetuity—meaning for present and future generations.
Attorney General Dana Nessel and her experienced and seasoned staff have been steadfast in enforcing the binding rule of public trust law that protects the Great Lakes and the public’s trust interests as legal beneficiaries. No matter what Enbridge argues, the Canadian company took the easement to use the bottomlands and waters of the Straits of Mackinac subject to the Public Trust Doctrine, recognized by the courts of every state and the United States Supreme Court, including in the landmark 1892 Illinois Central Railroad case.
That decision revoked a grant of the bottomlands of Lake Michigan for a private industrial complex on Chicago’s waterfront because it violated the public trust law that protects the Great Lakes. Grants of easements or the right to use public trust lands and waters have always been, and always will be, subject to the inherent legal condition that it can be revoked when the risk or danger of devastating harm passes the threshold of a risk of impairment; that is, what would be an unacceptable set of conditions and danger to a reasonable, sensible person.
Line 5 passed that threshold many years ago.
To reach that conclusion, Michigan’s leaders dug into the facts, data, and studies finally disclosed by Enbridge after demands from the DNR, the Department of Environment, Great Lakes, and Energy (EGLE), and the Attorney General’s office, and the order entered by the Circuit Court for Ingham County last summer. The reality is that strong currents, anchor and cable strikes, storms, continued scouring of bottomlands under the pipes, the suspension of more than 3 miles of pipeline on 228 anchor posts screwed into the bottomlands as “repairs”—when, in fact, there has been an overall, massive design change in the structure—have put the dual pipes in the Straits on the brink. This danger is compounded by the fact that these newly discovered and uncontrollable conditions, events, and grave dangers have never been evaluated or authorized under the State’s public trust laws by any governmental agency.
Enbridge has enjoyed a nearly free ride, reaping several hundred million dollars a year in revenues from Line 5 the past two decades; the dual lines, in fact all of Line 5, are well past the safe and reasonable life of a pipeline built 67 years ago. The company now has 6 months to make the transition to a permanent shutdown of Line 5, and there will be little if any negative effect on gasoline prices and energy supplies, according to extensive research, as well as recent experience, when damage to Line 5 in the Straits caused it to be fully and then partially closed for several weeks this past summer. Meanwhile, the positive effect will be that all can rest more peacefully knowing that a bright line is drawn and the time is coming for Enbridge to adjust its massive North American pipeline network to meet any needs not filled by competing pipeline companies for crude oil at regional refineries.
There will be plenty of jobs tied to the proper decommissioning of the lines, and more jobs in adjusting the existing capacity of Enbridge’s overall pipeline system in Michigan, like the extra 400,000 barrels of oil per day of design capacity in Line 78 that replaced Enbridge’s smaller Line 6B that ruptured in 2010 and devastated the Kalamazoo River. And clean energy will provide many more Michigan jobs than Enrbidge ever has, without risking the Great Lakes.
A risk and economic study commissioned by FLOW and conducted by a Michigan State University ecological economist estimated that the damages from a spill or leak from the dual pipes in the Straits would exceed $6 billion. Although the concerns about propane supplies for customers in rural areas of the Upper Peninsula are important, the U.P. Energy Task Force propane report and other independent reports show that new competition and infrastructure adjustments for propane service in the U.P. should be encouraged and can be in place by May of 2021. Moreover, the reality right now is that the need for crude oil is rapidly declining because of the United States’ and the world’s shift to renewable energy to diminish the deadly, crippling, and unaffordable and irreparable damage from climate change.
This is not 1953, when Line 5 was built and color TV was a brand new innovation in the United States. This is not 2003 either, when Line 5 reached the end of its intended lifespan and Enbridge started adding screw anchors in an attempt to “repair” a failing design because of unanticipated strong currents in the Straits of Mackinac—well documented by data and science. This is 2020, a far different world, facing a climate crisis and global freshwater scarcity. It’s a world in which our leaders are elected to make hard decisions to protect their citizens, as any trustee has a fiduciary duty to do regardless of politics or popularity. The Great Lakes, and the protected public trust rights therein to drink, fish, boat, bathe, and otherwise benefit from these public waters, are paramount.
Under public trust law, Michigan’s Governor, Attorney General, and DNR Director have put the public interest and good of all above the self-interests of a private corporation that will continue to survive only if it accepts that it is doing business in 2020, not 1953. Indeed, it’s time for all of us to accept and conform to this realization.
FLOW is taking advantage of 2020 Shop Your Community Days in Traverse City, November 12-14, to celebrate our Business Partners who are supporting FLOW and our effort to protect the Great Lakes. Please support these businesses during Shop Your Community Days and the upcoming holiday shopping season. When you do, 5% of your purchase amount will be donated to one of 35 charities of your choice — including FLOW!
FLOW Development Specialist Calli Crow recently chatted with Matt Myers, co-founder of the apparel brand M22, about their support for FLOW and protecting fresh water.
FLOW: What is your favorite aspect of living near so much beautiful, freshwater?
Matt Myers: Being active on the water, that’s what I live for. The kiteboarding, surfing, paddling, foiling, open water swimming – I love it all, and there is no better place in the world than the Great Lakes in the summer. Wind, waves and freshwater – it’s a dream!
FLOW: What do you think is the biggest threat to the Great Lakes?
Matt Myers: Contaminants — fertilizer, sewage, waste from slaughterhouses, leaky outdated oil pipelines … those are the things that worry me most. As we increasingly populate the shoreline, more and more people doing little things can add up and possibly devastated the natural ecosystem.
FLOW: How did you learn about FLOW and why do you support our work?
Matt Myers: We grew up watching and learning from Jim Olson, the founder of FLOW (and current President and Legal Advisor) — he is the water man! Even when I was a little kid I remember him talking about the lakes and water. He is a genius (truly) and has dedicated his life to protecting the Great Lakes. I deeply admire the energy, thought, care and perseverance he continues to pour into his work. Jim is the man on the ground making real change.
Facing the Reality of a Climate Change along the Great Lakes
Beach erosion photo by Roger Cargill
By Jim Olson
Water levels in Lake Huron and Lake Michigan won’t drop anytime soon. Private waterfront homeowners rush to save their homes from loss. Citizens seek to preserve their public right to a walkable beach along the shore below the natural high water mark, and the State of Michigan and municipalities struggle to save valuable infrastructure for water, sewage, roads, dams, parks, and recreation. (See FLOW’s continuing high-water coverage here).
One of the most controversial struggles pits landowners on the Great Lakes against the public who flock to the beaches for access for fishing, swimming, and strolling along the shore. Landowners rush to gain permits from the Department of Environment, Great Lakes, and Energy (EGLE) under emergency laws to install seawalls or riprap. This hard armoring inevitably impairs, if not blocks, beach-walking and erodes beach and property next door, kicking off a domino effect of one protective structure after another.
Ironically, both landowners and the public suffer losses to rights to use and enjoy these Great Lakes and their shores. No one wins with high water. The erosion of beach and bluffs by wave action is inevitable, and the shore becomes impassable either from obstruction or topographical and geographical features—skilled rock climbers aside, I’ve yet to see a private landowner build a dock or citizen walk the shore of a precipitous clay bank or cliff.
It is time for all of us to face reality—the new normal.
Public Trust Doctrine Establishes and Prioritizes Public Rights to Access Water
Conflicts in this country over the rights of private waterfront landowners and the public have been around since the American Revolution. When Benjamin Mundy took the oysters from the beds Robert Arnold had prepared in the mudflats of New Jersey, the dispute soon ended up in the state’s Supreme Court. In 1821, following common law and custom from England with roots in the Magna Carta, the court ruled that Mundy had a right to walk the bottomlands and gather the oysters, because the waters and bottomlands below the high water mark were held in trust for the public for access, fishing, navigation and sustenance. Not long after, our state courts and the United States Supreme Court recognized the public trust doctrine in all navigable waters.
In 1892, the U.S. Supreme Court held that on joining the Union, a state as sovereign takes title in trust for the public to all of the navigable waters and bottomlands to the ordinary or natural high water mark. As a result, the Court ruled that this trust—known as the public trust doctrine—extended to the navigable waters of the Great Lakes, including Lake Michigan and Lake Huron, scientifically a single hydrologic lake system. Michigan follows this same public trust doctrine.
Under the public trust doctrine, the rights of the public are exclusive and legally superior to private shore owners provided the public use remains below the high water mark and does not interfere with the private landowner’s riparian rights for mooring and docking boats, navigation, and reasonable use of the water in connection with the upland. These public rights include access, navigation, fishing, boating, swimming, and beachwalking, but these rights do not include picnicking and sunbathing; these occupancy type uses must take place at road ends or public beaches. The public trust is perpetual, meaning it extends to future generations, and that the government has a duty to protect the trust and these public rights from interference or impairment by private owners or others. The state title is exclusive to the natural or ordinary highwater mark, and the public trust and public rights cannot be repealed by a legislature because they are embedded in the common law.
But if Mundy had taken anything from Arnold’s land above the normal or ordinary high water mark above the mudflats, he would have been liable for trespass. The shore and land above the natural or ordinary high water mark belongs exclusively to the owner, and the owner has the exclusive rights attached to the soil for docking, mooring, and enjoying access for her or his boats to the navigable waters. Below this high water mark, the public has every right to enjoy protected public trust uses without interference from the owner. It’s often said that the riparian and public rights are to be exercised side-by-side—more aptly put, where possible a principle of accommodation between the public and riparian owners over the use of the common zone between the water’s edge and the high water mark.
It should also be noted that the owner’s and public trust rights often are on the same side against threats from others or natural causes—low and high waters are a case in point. Both the public and private landowners lose shoreline and the enjoyment of public and private rights. But the alignment is not always harmonious. During low water, the beach is wide, in some instances hundreds of feet, so there is little conflict, except for the threat of large-scale diversions of water out of Lakes Michigan and Huron, now prohibited by the Great Lakes Compact.
The Invisible Line Between Private Shoreline and Public Bottomlands
In the last several months, Michigan legislators passed and Governor Whitmer signed amendments to the Shoreland Protection Act (“SPA”) that provide emergency relief for homeowners so they can quickly obtain permits to install seawalls, sheets of steel, or riprap (large, rounded stones) to curtail the effects of unprecedented high water attributable to climate change. However, this law regulates and allows these structures on the shore above the high water mark, not below it, and requires a consideration of impacts on the public trust and neighboring riparian landowners’ shore.
If a landowner wants to install structures below the high water mark, another law applies, the Great Lakes Submerged Lands Act (“GLSA”), which codifies the protection of waters, bottomlands, and public rights under the public trust doctrine. Under the GLSLA, except for seasonal docks and overnight mooring, any permanent occupancy, structure, or alteration of these public trust waters and bottomlands is prohibited except where a riparian owner applies for and obtains authorization based on a showing that the proposed conduct falls within one of two narrow exceptions: (1) the proposed use promotes an improvement of the public trust, such as a public fishing dock or marina, or habitat work; or (2) there is no impairment or interference with the public trust or public trust uses such as, fishing, swimming, or beach-walking. The GLSLA also requires notice and in some instances the consent of adjacent riparian landowners and the local government where the land and waters in question are located.
The conflicts between the riparian owners under the SPA and the public under the public trust and GLSLA are readily apparent. Owners face significant financial and property loss, but the structures block public trust rights and exacerbate erosion and loss of beach on adjacent properties, triggering a domino effect of one owner after another being forced to build intrusive protective structures, casting the damage on to others, the shore, and public trust uses and natural resources.
The right to walk a beach does not end if riprap or a seawall is installed, but it creates a dilemma—walk over the riprap or through the water. If you walk above the normal high water mark, as long as there is immediate evidence of the presence of water or wave action on the riprap or beach in front of it, you are likely protected by the public trust doctrine, and not trespassing, although it is not necessarily safe. If it is impassable, there are two choices: turn back or walk above the seawall or riprap to avoid the danger. In the common law, a person’s trespass is sometimes justified if danger is imminent and the trespass is necessary to avoid it—sometimes called the “choice of evils” defense. But the choice may not avoid a conflict with the owner, should a landowner contest your right to do so. So, if you can ask permission, do so; if not, it’s a matter of good judgment.
It is not only members of the public who have a right to oppose interference with the use of the public trust beach area. An adjacent riparian landowner may also oppose a structure that will worsen the erosion to her or his property. Quite often, adjacent riparians will oppose a seawall or riprap not only to protect their property, but to also preserve their own rights as members of the public to enjoy walking along the beach.
The State of Michigan’s Dilemma during High Water
Given these competing or conflicting positions, the state often faces difficult choices between helping landowners and protecting the public and trust resources. Because the public trust rights are superior, the state must first assure that its choice will do no harm to the public trust; second, the state must determine whether the proposed seawall, riprap, or other structure meets the permitting requirements of the SPA and GLSLA, described above. Generally, this means the structure cannot interfere with or impair the public trust and neighboring riparian property. If there are alternatives to the proposed intervention or interference, the landower would have to implement the alternative so long as it is not cost prohibitive. If possible, the state should seek to accommodate the landowner’s need to protect a home so long as the impairment is kept to a minimum and public trust or public rights are not substantially impaired. In some instances, a well-designed riprap installation using round, smooth stones work best because the multiple curved surfaces dissipate the energy and lessen erosive effects.
Over the long-term, the reality is that high water erodes shoreline along Lake Michigan and Lake Huron year after year. Bluffs recede over time (although not so much in the dry, low water level years), significantly during years of high water, and dramatically during the unprecedented all-time high water levels in 2020 and the foreseeable future. We should also be aware that everyone in Michigan and along Lakes Huron and Michigan faces major damage and loss. So, the best approach is one of balancing and accommodation, if protective measures can be made that do not impair or significantly interfere with public trust resources and rights. This means communication, common sense, and compliance with the SPA, GLSLA, and the paramount rights of the public, including future generations. Communication can be critical for the landowner, because consent from adjacent riparian landowners and local governments may be required. This requires the government, landowners, and the public to understand that the integrity of our shores, beaches, lakebed, habitat, water quality, and fishing come first. In some cases, it may mean moving a home back from the bluff. In others it may mean accepting some riprap that provides necessary protection and minimizes loss of neighboring properties and interference with public passage.
The decision in each case will depend on the circumstances, awareness, and involvement of all neighbors and the public, keeping in mind the overarching public trust principles and the topographical and geographical conditions at each location. In times of high water, if the public keeps their feet in the water or wet the zone created from wave action, the exercise of public trust rights generally will be lawful. As noted at the outset, not every shoreline during high water is safe for any activity. I have yet to see anyone beach-walk the face of a rocky cliff no matter where the water level is. Ultimately, the exercise of public trust rights always turns on personal judgment that it is safe to walk the beach. The same is true for riparian owners.
Climate Change and High Water are the New Reality
High water levels like those in 2020 mean change, now and for the foreseeable future. And, high water levels are not just about beach walking or building seawalls and riprap. Water levels affect parks, breakwalls and marinas, water-dependent or shoreline businesses, near shore or lowland private and community septic and sewage systems, water sources, roads, bridges, dams like the recent failure in Midland County, drainage and storm-water systems, wetlands and floodplains, land use, zoning, and capital expenditures. Existing infrastructure is obsolete, both because of age or failure and the fact that it was designed in an era where rainfall or precipitation was considered stable. Most drainage, erosion measures, septic and sewage systems, and structures are designed for 25 to 100-year back-to-back storm events. As experience taught us with the dam failure in Midland a few weeks ago, the road and bridge damage in the western Upper Peninsula last year, and Manistee County a few years back, precipitation or storm events previously thought to occur every 500 or 1000 years have become far more frequent and intense.
Some massive losses will be unavoidable, but others can be minimized or even avoided. Federal, state, and local governments must enact laws and ordinances that provide for smart planning, land use, water protection, health, and safety—in short, government officials and all of us must accept the reality, and work together to shift to a new paradigm of what we can and cannot do because of the uncertainty of unpredictable extreme weather caused by climate change and natural forces.
We must seek resiliency, for ourselves, others, communities, and the natural world on which our life depends. We must make wise choices about capital expenditures to avoid wasted resources and continuing damage. For example, wetlands that prevent flooding, provide critical habitat for wildlife, and recharge clean water into groundwater or lakes and streams will disappear and become submerged. Floodplains will become wetlands. Lowlands will become floodplains. Or, closer to home on Lakes Huron and Michigan, the government, property owners, and the public can work together to find the best long-term resilient actions through shared cost and responsibility.
We Forget that the Water Cycle and the Life Cycle Are One
If we are willing to face the reality and build resilience into our lives, not unlike COVID-19 or the movement for racial equality that has erupted once more in the last few weeks, we will make it, maybe not with the same expectations, but with greater security of life, property, community, and economy—and with the peace that finally we will face the new reality. This shift had been needed for a long time. Let’s not only protect the public trust in our beaches; let’s protect and respect the entire water cycle as a public trust.
“We forget that the water cycle and the life cycle are one,” Jacques Cousteau famously said. And, at the same time, let’s restore the public trust in government at all levels and in ourselves! Let’s follow the good that can come out of this, no matter where we live or who we are.
 Illinois Central Railroad v Illinois, 146 U.S. 387 (1892).
 Obrecht v National Gypsum Co., 361 Mich 399 (1960).
 Glass v Goeckel, 473 Mich 667 (2005).
 Id.; Gunderson v State of Indiana, 67 N.E.3d 1050 (2018).
 Part 323, NREPA, MCL 324.32301 et seq.; see https://www.michigan.gov/egle/0,9429,7-135-3313_3677_3700—,00.html
Thousands urge MPSC to bring Enbridge under rule of law to protect Great Lakes
By Emma Moulton, FLOW Milliken Intern for Communications
By Emma Moulton, FLOW Milliken Intern for Communications
During a three-week comment period that ended in mid-May, the Michigan Public Service Commission (MPSC) received a flood of more than 3,100 public comments, with a strong majority firmly opposed, on Enbridge’s request to bypass the legal review process and plow forward with other permitting required to replace and relocate the decaying Line 5 oil pipelines crossing the Straits of Mackinac with a proposed 18- to 21-foot diameter tunnel housing a new pipeline.
MPSC spokesman Matt Helms called the volume of comments “definitely a high amount” even for an agency whose utility rate-setting cases sometimes draw intense public scrutiny. The submissions poured in from individuals, families, tribes, environmental groups, elected officials, business owners, political groups, and many others opposed to the Canadian company’s attempted legal maneuver.
Many comments, including from FLOW, highlighted deep concerns over due process, the rule of law, and tribal treaty rights in response to Enbridge’s request for a declaratory ruling that no approval from the MPSC is even necessary. The Canadian pipeline company justifies its request by claiming that a new, roughly 4-mile long tunnel through the bedrock and loose soil of the public trust bottomlands should be considered mere “maintenance” on the old Line 5 pipelines in the open waters that the MPSC approved 67 years ago.
It’s 2020, Not 1953, and A Momentous Decision Awaits
An overarching theme of the comments was that this is no longer 1953, when Dwight Eisenhower was president and color TV was new to America. Now climate change, water scarcity, privatization, and oil spills must be taken into account when considering this massive, new fossil-fuel infrastructure. The public comments demand that MPSC’s decision be based on actual necessity in light of societal clean-energy goals and public interest in a sustainable future. Line 5 only grows more dangerous with age, and it is decision time for Michigan’s leaders.
“There’s no free pass here,” said Jim Olson, FLOW founder and legal advisor. “The MPSC is charged with the responsibility of assuring this project is necessary and in the public interest of the people of Michigan in 2020, not 1953. The world has changed and with the current COVID-19 pandemic and global climate crisis, the MPSC’s decision will be momentous.”
Groups Point to Risks, Legal Tactics, Lack of Public Necessity
In their comments, many environmental groups spoke to the unacceptable risk a tunnel would pose to natural resources in Michigan. Several submissions cited the major catastrophe that would be unleashed by an oil spill under and gushing into the Great Lakes, including the damage to drinking water supplies, public health, jobs and the economy, public and private property, aquatic life and habitat, current and future generations, and a way of life in the Great Lakes State.
And the groups directly addressed the criteria the MPSC considers in weighing Enbridge’s request for a declaratory ruling. The Sierra Club, for instance, insisted that the MPSC deny Enbridge’s request, as it, “asks the Commission to ignore that its proposal is in fact to replace the dual Line 5 pipelines by building a new single pipeline, of a different size, in a new location”—noting that Sierra Club members from Michigan rely on the Great Lakes for their clean water and their livelihoods.
The citizen-led Straits of Mackinac Alliance questioned the necessity of the tunnel given the economic downturn here and beyond, writing, “Any projection of tunnel use beyond the next decade is highly speculative” due to Michigan’s change in oil demand. “Michigan’s need for oil products in 2020 is totally different than it was in 1953… Current demands for oil have dropped dramatically and industry projections for shale oil sources do not look promising. The shale oil producers may not be in business when the tunnel project is completed.”
Tribes Voice Concerns over Treaty Rights and Survival
Throughout the comments, there is a powerful presence of tribal organizations voicing their critical position on the request, most often citing the 1836 Treaty of Washington, which preceded Michigan’s statehood in 1837 reserved the tribes’ rights to hunt, fish, and gather throughout the territory, and asserted the need for an environment in which fish can thrive.
In addressing tribal rights, attorney Bzdok highlights the lack of tribal collaboration in the MPSC’s original 1953 decision on Line 5: “The Tribes – at least two of which will be intervening in this case – were the original occupants of the property that will be occupied by the project. They retain certain reserved rights to natural resources in the project area under the Treaty of Washington.”
On behalf of the Little Traverse Bay Bands of Odawa Indians, Tribal Chairperson Regina Gasco-Bentley states that the reserved treaty rights “remain central to our culture, economy, and physical and spiritual well-being. The Straits of Mackinac are the life blood of our Tribe. An oil spill or geologic mishap from tunneling under the Straits would devastate our Tribe beyond any economic valuation.”
Next Steps from the MPSC on a Line 5 Oil Tunnel
The MPSC through May 27 accepted any replies on the public comment that was submitted by the May 13 deadline. The public body expects to decide on Enbridge’s request for a declaratory ruling at a June or July meeting, or shortly after, according to spokesman Helms.
If the MPSC rightly rejects the request, then, according to FLOW’s Jim Olson, the MPSC in its review of Enbridge’s April 17 tunnel application should “fully consider and determine the effect on, and potential impairment to, the substantial risks, alternatives, costs, and damages, and the future of the State of Michigan under the public trust in the Great Lakes, environment, fishing, fishery habitat, and the communities, including tribal interests under long-standing treaties” of Enbridge’s tunnel pipeline proposal under the Straits of Mackinac to replace its existing four-mile Line 5 pipeline on the lakebed.
This story originally appeared on NatureChange.org, Joe VanderMeulen’s online publication that features conversations about conservation and climate in northern Michigan.
The beaches along Michigan’s west coast have all but disappeared under the rising water levels of Lake Michigan as well as the other Great Lakes. In fact, lake levels haven’t been this high in well over 100 years. They reached an all-time low in 2013 before a meteoric rise brought them to an all-time high in just 7 years.
If you love taking long walks along the lake shore, the high water and waves might just push you inland and on to private property. What can you do? Do you still have a right to walk the Great Lakes shorelines?
NatureChange.org talked with FLOW founder, president, and highly-respected environmental attorney, Jim Olson, about the changing coastline of Lake Michigan and the public’s right to walk the lake shore. As Olson describes, the land under the waters of Lake Michigan (and the water itself) along Michigan’s coast is held in public trust by the State. For a very long time, the public has had the right to walk along the beach below the Ordinary Natural High Water Mark — an obvious physical line of topography and vegetation created over many years by wave action. However, the rapid change in water levels and coastal erosion has overwhelmed the Ordinary Natural High Water Mark. So, where can we walk?
Olson says, “you have the right to still walk the beach, but you’re going to have to have your toe in the water or walk in the wet sand to be [legally] safe because we don’t know where that new natural ordinary high is. But we certainly know that if you’re within the wet sand, you’re certainly within the wave action and have a right under the public trust doctrine to access and walk along the beaches and shoreline of the Great Lakes.”
An educator for Michigan Sea Grant, Mark Breederland adds that the water levels in Lake Michigan are predicted to continue breaking records for many months, causing even more coastal erosion. In many places, high shore land bluffs and fallen trees can present real hazards to beach walkers. And if beach walkers need help to get out of a difficult situation, the first responders will be put at risk too.
“I think,” Breederland says, “our beach walking is going to have to be adjusted, for sure, for 2020.”
Linda Dewey, a journalist for the Glen Arbor Sun newspaper and Lake Michigan shoreline property owner, reminds everyone that walking the shoreline of Lake Michigan is a delightful, shared activity — with limits. When in front of private property, walkers are not permitted to stop, sit and settle in. That has always been true, but now there are new hazards. Where there are fallen trees, private docks or other structures blocking the shoreline, beach walkers are not allowed to walk inland on private property.
According to Dewey, if you encounter an obstruction and can’t go around it in the water, “You’re going to have to turn around.”
The following 4-minute video offers clear explanations and illustrations.
FLOW Urges Mackinac Straits Corridor Authority to Halt Action on Unauthorized ‘Line 5’ Oil Tunnel
Proposed project Fails to Comply with Great Lakes Submerged Lands Act and Public Trust Law
FLOW, an independent Great Lakes law and policy center based in Traverse City, Michigan, filed formal comments today with the Mackinac Straits Corridor Authority, calling on the body to halt any further implementation of Enbridge Energy’s proposed Line 5 oil pipeline tunnel until the authorizations and approvals required by public trust common law and statute have been applied for and obtained.
The Mackinac Straits Corridor Authority and Enbridge have not applied for, nor received, the required legal authorization from the Michigan Department of Environment, Great Lakes, and Energy to proceed with the oil pipeline tunnel. Canadian-based Enbridge hatched the tunnel scheme with the former Snyder administration to replace the 67-year-old decaying Line 5 pipelines in the open waters of the Straits of Mackinac, where Lake Michigan meets Lake Huron.
“The oil tunnel negotiators and parties’ attempt to bypass the Great Lakes Submerged Lands Act (GLSLA) and the public trust law constitute one of the most egregious attacks on citizens’ rights and sovereign public trust interests in the Great Lakes in the history of the State of Michigan,” saidFLOW Founder and President Jim Olson.
“The Mackinac Straits Corridor Authority must understand that it is subject to the public trust doctrine and law that applies to the Great Lakes and the soils under them,” said Olson, a water law and environmental attorney. “When Michigan joined the United States in 1837, it took title as sovereign for its citizens under the ‘equal footing’ doctrine to all of the navigable waters in its territory, including the Great Lakes, and ‘all of the soils under them’ below the natural ordinary high-water mark. These waters and the soils beneath them are held in, and protected by, a public trust.”
The public trust doctrine means that the state holds these waters and soils beneath them in trust for the public for the protection of preferred or dedicated public trust uses of navigation, fishing, boating, swimming, bathing, drinking water, and other recreation. There can be no disposition, transfer, conveyance, occupancy or use of any kind of these public trust waters and the soils beneath them, unless there is a statute or law that expressly authorizes that action.
The State and Enbridge must first obtain authorization under the GLSLA for the public-private partnership to establish a long-term agreement for the 99-year lease and occupancy agreement for a tunnel or pipeline in or through the soils and bottomlands of the Straits of Mackinac.
FLOW, as well as a coalition of state-wide public interest organization making up the Oil & Water Don’t Mix campaign, contends that boring an oil tunnel in and through the soils for an oil tunnel is not only subject to these public trust laws, but that crude oil pipelines in the or under the Great Lakes are not a solution given the risks and threats to the Great Lakes, its people, businesses, and communities. FLOW, OWDM, and other communities and organizations have also called for the shutdown of the 67-year old existing line 5 because of the immediate threat to the Straits and the risks posed by the pipeline’s more than 400 stream and river crossings in the Upper and Lower Peninsulas. Enbridge’s proposal to allow electrical lines and other infrastructure to occupy the proposed oil pipeline tunnel is a bad idea that poses an explosion risk. There is adequate capacity in the thousands of miles of the Enbridge crude oil pipeline system to meet its needs for Michigan and Canada without the perilous existing Line 5 or crude oil tunnel for another 67 years.
Revisiting the Foxconn Great Lakes Water Diversion in Wisconsin
By Jim Olson
Last summer I wrote about a Wisconsin administrative judge’s ruling that the diversion of 7 million gallons a minute — or 2 billion gallons of Great Lakes water per year — to the private corporation Foxconn to build a 22 million square-foot plant for 13,000 jobs should not qualify as a “public water supply”.
FLOW filed an amicus brief in the case, arguing in support of Wisconsin citizens and organizations that the Foxconn diversion was not exempt from the Great Lakes Compact, because it did not constitute a public water supply. Under the Compact and Wisconsin law, public water supply means “primarily residential” customers. To ensure a public service and purpose, the law and anti-diversion Compact are quite clear: If it’s not for many people who live in a straddling community but outside the basin, the water of the Great Lakes cannot be diverted. The law is also clear that it cannot be diverted for private purposes.
What happened in the Foxconn case was politics, plain and simple. Former Wisconsin Governor Scott Walker teamed up with the Taiwanese multinational electronics manufacturing company to commit $3 billion and 2 billion gallons of Great Lakes water for Foxconn’s promise of a 22 million square-foot facility and 13,000 jobs. Every business has to plan and decide for itself whether to build, finance, and operate an expansion. But 2018 was an election year, and Walker dangled everything he could to stir excitement for Wisconsin’s citizens. He rode the promises of Foxconn for tax base and jobs. Walker, a Republican, lost to now Governor Tony Evers, a Democrat. Foxconn didn’t uphold its part of the bargain with Walker. The company has downsized its facility to 1 million square feet, will offer a small fraction of the jobs, and will need much less water.
But no one has asked the real question: What do taxes, jobs, and transferring billions of gallons of Great Lakes water outside the Basin have to do with public water supply? What does this have to do with public services or public purpose? The answer is nothing.
The question now is: What is Governor Evers and Wisconsin citizens, and those of us in the Great Lakes Basin going to do about it? Under Scott Walker, Wisconsin bent the law and the Compact, but the new administration hasn’t done anything to remedy that. It’s time to take off the rose-colored glasses and protect the waters of the Great Lakes from becoming a subsidy and reservoir for private corporations outside the Basin.
FLOW founder and president Jim Olson delivered the following remarks — inspired by Dr. Martin Luther King Jr’s “I Have a Dream” speech — on January 12 at the Unitarian Universalist Congregation of Grand Traverse.
By Jim Olson
I had a dream in 2009 and 2010. I had a dream to bring the public trust doctrine into the debate over the battle for control of our world’s water commons and what to do about the challenge to halt its destruction and control by private corporations in an increasingly intense world water crisis.
This dream grew out of the legal battle here in Michigan over the privatization of water and damage to our headwater creeks, lakes, and wetlands by Nestlé. For the first time, corporations like Nestlé sought to convert what all understood as a right to reasonably use water, to the sale of water. This was, in effect, an unprecedented massive scale of the privatization of the commons in water for exorbitant profits without paying anything. Nestlé and other corporations around the world (check out the World Water Forum) wanted to take over the public’s sovereign water—which, if it succeeded, would make every person and living being on the planet its slave.
I had a dream that our water commons would be protected by the framework and principles of the public trust doctrine—an ancient doctrine dating from days of Justinian in Rome, 1,500 year ago. The public trust doctrine puts our commons and the fundamental relationship of water to life paramount to all else, meaning it must be protected from one generation to the next. The public trust doctrine would transform us to protect the gift of water first, which in turn would sustain and foster and assure access to clean, safe water for all humanity, all living beings on this planet. Thus was born FLOW (For Love of Water).
Today, that dream is a reality because of the dedication, help, and support of many people who understand that at this time in history we cannot afford to view the natural world, especially our common water, as apart from us. It is a common gift from the creation. It preceded the human mind. The human mind is a tool, not an end in itself. If we honor this dream of the public trust in the water commons as part of our own beings, paramount to all life, we will then defeat our human desire to control, at short gain, and convert everything it can to profit, at tremendous cost to all life, the natural world, the hydrosphere itself.
I have a dream that this commons will be protected by this public trust doctrine, which many of you who have followed FLOW have heard us speak about and apply to the challenges we face here in the Great Lakes. This dream started centuries ago.
I have a dream that this commons and public trust, buried like an underground stream beneath the industrialization and capitalization of the planet in the past 200 years, will resurface and become central to our understanding and protection of the integrity of water as paramount, intrinsic in its own beingness. It will become part of our everyday life. We will then understand that if we do not protect water and all life as a commons under public trust principles, that private property and the accumulation of massive capital and wealth really has no value of all.
I have a dream that we understand that the hydrosphere itself is a being in a sense, a living water cycle in which we live will be seen as a commons.
I have a dream that this commons in the hydrosphere and the beings and life it supports are protected by the public trust doctrine, that government and personal decisions will put the commons and life first, as a primary public purpose, and that government and personal decisions must assure the protection of water from impairment from one generation to the next.
I have a dream that this will lead to dignity and respect for others and water. By following this paramount public trust framework, we and government will make very good decisions about water, health, land use, food, energy, environment, and economy.
I have a dream that if this public trust framework is not followed, that people will remove those in power by their voice, their hearts, their votes, or protest. If necessary, they will file lawsuits to stop the tyranny of private corporate control of our water commons, our health, drinking water, sustenance for life, that this will halt the tyranny of climate change, the tyranny of fires and death in Australia, California, around the world, the tyranny of massive storms, flooding, landslides.
I have a dream that this commons and public trust will stop the tyranny of the shutoff of water for more than 100,000 people in Detroit and across this world. I have a dream that there will be no water shutoffs for any person, child, or grandparent on this earth, because they don’t have the ability to pay for water.
I have a dream that this public trust and protection of the water commons will stop the destruction of lives like the exposure to lead of children and citizens of Flint or other cities and towns.
I have a dream that this public trust doctrine will assure that water is always public, that we will preserve water and treat it with dignity for all.
I have a dream that this public trust will assure that this water is a generational commons and public trust, serving all on earth for generations to come.
I have a dream that it will apply to and honor all people.
I have a dream that people will understand that we are a relationship to water, that the public trust doctrine does not just protect the water, it protects all life; that it protects the relationship between people and life.
I have a dream that if we understand this relationship between beings and life, we can protect our Great Lakes like Lake Erie, one-third of which is a green toxic soup, and our groundwater from toxins that should never be tolerated in the water we drink or use for food and bathing.
I have a dream that we understood that this water commons is us, and that in the future because of this, we will come to a peace on this earth—a peace that was created and continues in the relationship between the commons and us when the earth was formed, when we entered this earth, however that happened.
I have a dream that we can move forward together to accomplish the protection of water as commons and public trust because we come to understand that is what’s in our hearts.
Watch the full video below (Jim Olson begins speaking at 40:12).
Iowa state agencies and officials to stand trial for breach of Public Trust duty to prevent harm to streams, fishing, swimming, and drinking water
Jim Olson, FLOW President and Founder
By Jim Olson
The foot-dragging by public officials to take action against deadly algal blooms and pollution from bad farming practices finally has reached a tipping point.
It was just a matter of time before a court would step in to force state government to implement a plan to stop the high concentrations of phosphorus, nitrites, and other harmful substances reaching our public lakes and streams from large corporate farm runoff.
Last year, a federal court dismissed a a similar lawsuit filed under federal law. This time, citizens and Food and Water Watch, represented by Public Justice, a national public interest law firm started decades ago by the late Dean Robb of Suttons Bay, Michigan, filed a lawsuit to protect the public trust in the navigable waters. When each state joined the Union (Iowa obtained statehood in 1846), the state took sovereign title and control over all of the navigable waters in a state in public trust for its citizens. Under this public trust the state as trustee has an obligation to protect these waters for fishing, navigation, boating, and swimming. Iowa trial judge John Hanson has ordered a trial to hear evidence on whether the state has abdicated its duty to prevent the impairment and subordination of these public rights by private interests. If the litigants are successful, the trial court will order state officials and agencies to implement a comprehensive plan to halt the continuous pollution of the source of drinking water for over 500,000 people.
Judge Hanson got it exactly right in letting this case proceed to trial. There is a legal duty under public trust law, there has been a continuing breach of that duty by the state, and it has resulted in harm and impairment to the public trust waters, resources, and public trust uses. The direct connection between the effects of activities on land that flow into public trust waters and resources is no different than if someone discharged pollutants or sediments directly into the water. In either instance, it is a direct result of needless human conduct that interferes with the natural water cycle—water falls on earth, percolates into ground, runs off into lakes and streams. Those who interfere with or harm the water in this cycle should be held accountable for damaging and failing to protect downstream public trust waters and the rights of citizens.
Watch out, Ohio officials, you’re next. I’ve argued in past blogs that the public trust in our navigable lakes and streams means that no one can pollute or impair these streams or sacrifice and subordinate the public’s rights and interests in drinking water, fishing, boating, and swimming to private purposes or interests. Ohioans and Michiganders have been plagued with annual dead zones for years now. Every summer a thick, toxic mat of green algae spreads across the western one-third of Lake Erie, endangering drinking water, killing fish, shutting down beaches, swimming, and tourism. Every year the governor of Ohio and state officials promise to do something. Every year nothing happens to stop the runoff.
Ohio’s governors and state officials have tinkered with laws to allow farmers to take voluntary actions, but have never taken action under the public trust duty to protect Lake Erie from harm, undisputedly the result of runoff of phosphorous from intensive corporate farms and extreme weather from climate change. When our leaders in the executive and legislative branches of government fail us, it is time for citizens to call on the judicial branch. Our democracy is founded on the checks and balances of three branches of government, not two.
Last week, FLOW’s senior policy advisor and noted Great Lakes policy expert Dave Dempsey called on citizens in Ohio and Michigan to take to the courts to put an end to Ohio’s truculence. I and others have argued that Ohio officials and the polluting big farms should be forced by the courts in Ohio and Michigan (Monroe County is on Lake Erie) to put an end to this blatant private confiscation of a treasured water resource that belongs to all citizens of these and surrounding states.
On behalf of all of us who live here in the Great Lakes Basin, our state government leaders must pass laws and file lawsuits to stop the dead zones and billions of dollars in damages to the businesses, cities and towns, and people. If our leaders fail us, then like the citizens of Iowa, it is time for citizens in Ohio, Michigan, and Ontario to file lawsuits under the public trust doctrine. The time for action is now.
July is “Public Trust Month” at FLOW, a time to gather views and inspiration from people from all walks of life who live, use, enjoy, or depend on the waters of the Great Lakes Basin for life, recreation, and livelihood.
This is because FLOW’s mission is to assure that decisions and actions that affect the Great Lakes are undertaken in the framework of ancient principles, embedded in our law as deep as the Great Lakes and the soils beneath them. These principles, known as the public trust doctrine, recognize the duty of government as trustee to protect, and the rights of the public as beneficiaries to enjoy, these public trust waters and their paramount public nature and uses from one generation to the next.
On July 4, my wife Judy and I hosted a large family picnic at our house in Benzie County.After enjoying the food and multiple conversations going on at once, some of us, with pant legs rolled up above the knees, found ourselves wading in the Platte River with several grandchildren.Watching them totter and frolic in the fast current—their ages ranging from 3 to 23—I had this thought:Liberty includes the gift of freedom to enjoy public trust waters like the Platte River, here in Michigan, and the Great Lakes, and waters throughout the United States and beyond. The public trust in our water resources is a principle that protects and passes on this gift from one generation to the next.
The public trust doctrine is often traced from the Justinian Code 1,600 years ago: “By the law of Nature, these things are common to [humankind]: the air, running water, the sea, and consequently the shore of the sea.”The doctrine reappeared in 1215 in that “Great Charter of Liberty,” the Magna Carta, to restore the custom and rights of the people to access to the rivers and sea for food and sustenance.
On July 4, 1976, the Declaration of Independence declared:“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”
The U.S. Constitution was adopted and ratified between 1787 and 1788, and not long after, the Bill of Rights in 1791 declared that no government—federal, state, or local—can deprive a person of the right to “life, liberty, and property” or “other rights [not listed] retained by the people.”
In 1821, in the first of a long line of decisions adopted in similar form as the common law of the people by the courts of every state, the Supreme Court of New Jersey nullified an attempt by a landowner to exclude the public from the seabeds, navigable waters, and their near shores because these waters and special lands were public common property held in a public trust for the benefit of all citizens of a state.
In 1892, the United States Supreme Court reaffirmed the public trust doctrine in the navigable waters, the soils under them, and the shoreline below the high water mark.An influential railroad company hoodwinked a compliant Illinois legislature into granting it almost one square mile of Lake Michigan for a private industrial complex. This didn’t sit well with Illinois residents, especially those who lived in Chicago, and the next session of the legislature repealed the grant.The company, of course, notified the state that it was too late; they owned the bottomlands and waters of Lake Michigan.
The Supreme Court rejected the company’s claim, and in a landmark decision ruled that the grant to a private company or person was void because the special common public waters and lands owned and held by the states in public trust were “inalienable”! This means that no government can pass a law that deprives a citizen of the inalienable rights, as beneficiary of the public trust, to enjoy and use these waters and special trust lands for fishing, navigating, boating, swimming, bathing, and sustenance—drinking water and growing food.
Imagine that, an inalienable right derived from Roman law, the Magna Carta, and English common law came down to this country because of the “inalienable rights” covered by the Declaration of Independence and American Revolution, and that this “inalienable right” is protected by the public trust doctrine.It is a right that cannot be taken away or repealed, and it is protected by the rights to “life, liberty, and property” and the “other rights of the people” in our Constitution!
Today, courts around the country are recognizing that the rights of citizens to an individual and indivisible right under the public trust doctrine fall within our “life, liberty, and property” protected by our Constitution.
Talk about a gift for all of us to celebrate during the afterglow of Independence Day and throughout FLOW’s “Public Trust Month” of July. This is one to be thankful for, exercise, and protect for ourselves, our children, grandchildren, and all future generations.