“FLOW is responsible for the major success we’ve had so far as a movement in halting the Line 5 pipeline that crosses the Straits of Mackinac,” said FLOW senior policy advisor Dave Dempsey in this testimonial about the impact we’ve had during the past decade.
During 2021, our 10th anniversary year, FLOW supporters and collaborators are sharing reflections on what our work together has meant to them and to the freshwaters of the Great Lakes Basin.
“Without the public trust doctrine that Jim Olson and Liz Kirkwood have been advocating, that pipeline would be set to operate for another 50 years, and I think we’re in a position to shut it down, thanks for FLOW’s work on this. I think of the public trust doctrine as the key that can unlock all the environmental doors for us. It can protect our water, protect our air, protect us from climate change. It’s the secret weapon.”
Watch a video below of Dave Dempsey’s testimonial:
“It was 10 years ago that I first met Jim Olson, and I invited him to be a guest speaker for Green Elk Rapids,” recalls Royce Ragland, the organization’s co-founder and a founding FLOW board member. “He talked about his favorite thing—the public trust. I was just so taken with the idea. It’s an old thought. It combines everything from policy to stewardship to theology to philosophy. I loved it.”
For 10 years FLOW has worked to keep our water public and protected. During 2021, our 10th anniversary year, FLOW supporters and collaborators are sharing reflections on what our work together has mean to them and to the freshwaters of the Great Lakes Basin.
“FLOW gave me an understanding of the importance of policy,” said Ragland. “It gave me an appreciation of the role and the link between policy, which is what FLOW works so mightily on, and the role of everyday life and needing our water, caring about our water. It just merges it all together.
“I chair the planning commission in Elk Rapids, where we seek to raise awareness about environmental ordinances—especially water ordinances. This is the work of everyday citizens trying to alert each other about how we need to take care of these issues, these elements. When friends and neighbors know you’re involved with an organization or a board, it’s an endless opportunity to educate.
“It’s easy to take it for granted. It’s easy to lose an understanding for how policy relates to laws and legislation and advocacy.”
Watch Royce Ragland’s FLOW video testimonial below.
Jim Olson is FLOW’s Founder, President, and Legal Advisor
By Jim Olson
The federal lawsuit Enbridge filed Tuesday is an attack on the State of Michigan’s sovereign title and authority to protect the public trust in the Straits and Great Lakes from Line 5. The federal government can regulate safety, but it can never control the location and use of the State of Michigan’s own public trust waters and bottomlands of the Great Lakes, except as it relates to navigation.
Michigan has never surrendered and could never surrender its public trust authority and responsibility to protect the waters of the Great Lakes from the clear and present danger presented by Enbridge’s old and failing Line 5 oil pipeline system. The public rights in navigable waters, according to Michigan’s Supreme Court, “are protected by a high, solemn, and perpetual trust, which it is the duty of the state to forever maintain.”
State of Michigan Conducted an Exhaustive Review of Enbridge’s Line 5 Easement Violations
After a comprehensive, 15-month review of Line 5’s operations and potential for catastrophic harm from a rupture or leak in the heart of the Great Lakes, the State of Michigan determined on November 13 that Enbridge’s easement to use the bottomlands of Lake Michigan must be revoked and terminated because of “longstanding, persistent, and incurable violations of the Easement’s conditions and standard of due care.” The action represents a major milestone in Michigan’s environmental history.
The state’s title and public trust interest and duty in the Great Lakes have been established by the Michigan and United States Supreme Courts for more than 125 years. Every state received title to the lands and waters that were navigable at the time of statehood—for Michigan, 1837, including all of the Great Lakes and its inland lakes, rivers, and streams. The state’s public trust title in navigable waters and lands beneath them is a matter of federal constitutional principle. Once the state has title, it is absolute, cannot be alienated or transferred away, and the state as trustee determines the extent and nature of any activity or use of the public trust waters and lands of the Great Lakes.
The public rights under the Public Trust Doctrine are protected, according to the Michigan Supreme Court, by a “high, solemn and perpetual trust which it is the duty of the state to forever maintain.” The state’s interest and its public trust responsibilities are held forever. Thus, any authorization, like the Enbridge Line 5 easement granted by the Department of Conservation in 1953 remains subject to the state’s duty to protect the state’s title as well as Michigan citizens’ paramount rights that are protected by public trust law. The United States Supreme Court explicitly acknowledged a state’s paramount rights in the landmark case, Illinois Central Railroad Co v Illinois, finding that a grant of property rights in public trust resources “is necessarily revocable, and the exercise of the trust by which the property was held by the state can be resumed at any time.”
Catastrophe Does Not Have to Occur Before the State Acts to Protect the Public Trust
When Enbridge received its easement for its dual lines in 1953, it did so subject to the state’s authority and duty to protect its sovereign public trust title and rights of citizens in the waters and bottomlands of the Straits of Mackinac. No private interest can be granted permission to use these public trust waters and bottomlands for any private or public use without the express authorization by law, and only if the state finds at the time the public’s uses and the public trust will be improved or not impaired.
Enbridge’s easement is basically a license to use these public trust lands and waters subject to revocation if there are dangers that would violate the public trust. If later it is discovered that conditions exist that were not initially understood or new information comes to light indicating public trust resources are at risk or threaten the public’s rights in fishing, navigation, boating, and drinking water, or recreation, the state has the inherent right to revoke the use. No state nor its citizens has to wait until a catastrophe occurs before the state can revoke a use to protect this perpetual trust.
Only the State of Michigan, through its Governor and Department of Natural Resources Director and the Attorney General as trustees and “sworn guardians” of this public trust, has the authority over who, where, and when another person or corporation can use the Straits of Mackinac, such as Enbridge’s use for the dual lines in 1953 and in 2020. Because the circumstances, conditions, and events—anchor strikes, cable strikes, scoured spans under the pipes, and stronger currents—violate the terms of the 1953 easement and endanger the Straits and hundreds of miles of Lake Michigan and Lake Huron, the state has every right to revoke the Enbridge easement. Enbridge’s use of Lake Michigan bottomlands has always been limited by the Public Trust Doctrine and the state’s perpetual authority to revoke the use when the public trust is endangered.
State of Michigan, not a Federal Agency, Controls the Public Trust Lands and Waters of the Great Lakes
Enbridge falsely claims that the safety code requirements under the federal Pipeline and Hazardous Materials Safety Administration (PHMSA) supersede the state’s authority and public trust duty to protect the Great Lakes. The claim confuses the federal power to regulate a pipeline’s safety once it is built with the state’s sovereign authority to decide if a corporation or Enbridge can use the public trust lands and waters of the Great Lakes in the first place.
There is nothing in PHMSA regulations or any federal law that remotely attempts to assert control over the use of a state’s public trust lands and waters, nor could the federal government do so. The authority for use of these public trust lands and waters falls entirely within the authority and duties of the State of Michigan, and there is nothing the federal government, Canadian government, or Enbridge can do to impinge on this paramount public trust title and the rights of the citizens of Michigan in the Great Lakes.
The bottom line is that the Great Lakes belong to all of us, and the State of Michigan is doing its duty as trustee to protect our public trust resources so that, now and in the future, we are assured the right to drink from, bathe, fish, and swim in, and boat upon oil-free waters. Alternatives exist for supplying oil and propane without spikes in fuel prices, but our magnificent fresh waters are irreplaceable. Please join FLOW in thanking Gov. Whitmer for standing up to Enbridge and standing up for our Great Lakes.
The State of Michigan’s decision last Friday to revoke and terminate the 67-year-old easement across the Straits of Mackinac granted to Enbridge for the Line 5 petroleum product pipelines was more than that day’s news—it was an event that will be remembered in the state’s environmental history.
Governor Gretchen Whitmer, Department of Natural Resources (DNR) Director Dan Eichinger, and Attorney General Dana Nessel announced the decision based on Enbridge’s consistent track record of deception, subterfuge, and poor stewardship, which put at risk a large area of the Great Lakes and the people, industries, aesthetics, and public uses dependent on them. Legally, it was a sound decision under the Public Trust Doctrine, but politically it was difficult. The same is true of most of the milestones in our environmental past. Dedicating Northern Michigan lands to building a public forest out of ravaged land in the early 1900s, standing up to developers who wanted to despoil the Porcupine Mountains in the 1950s and 1960s, and laying down the law on flagrant polluters in the 1960s and 1970s all took political guts, supported by law.
The Line 5 shutdown announcement brought to mind the epic fight over protection of the Pigeon River Country State Forest in the 1970s and early 1980s. This northern Lower Peninsula gem had fed the imagination of a young Ernest Hemingway and had been cobbled together by P.S. Lovejoy, considered Michigan’s equivalent of Aldo Leopold. Lovejoy dubbed the preserve “The Big Wild” and said it “should be left plenty bumpy and bushy and some so you go in on foot—or don’t go at all.”
The discovery of petroleum reserves under the Pigeon River Country State Forest in 1970 fueled an unwise decision by the DNR to offer drilling leases to petroleum companies. Determined to fight for the Big Wild, a legion of individuals, conservation and environmental groups, and editorial writers turned the battle into a test of state priorities. Specifically, weren’t there some publicly owned areas of the state that should be off limits to resource exploitation because of their beauty and significance, and the risk of a catastrophic accident? Governor William Milliken, urged on by First Lady Helen Milliken, took the side of the protectors.
The contest rose all the way to the Michigan Supreme Court, which ruled in 1979, under the Michigan Environmental Protection Act, that drilling could result in unacceptable destruction of the Forest’s herd of 255 elk. Coupled with another Supreme Court decision the same month on a separate drilling appeal in the Forest, the decision effectively barred drilling there.
It was a monumental victory for the forest protectors, but it also sowed the seeds of a partial defeat. Michigan’s economy was struggling and oil companies wooed lawmakers with visions of riches from petroleum development. Rather than lose everything, some members of the coalition of forest guardians compromised on a limited, phased development plan. And out of the controversy rose the idea of dedicating revenues from petroleum development on state lands to public land acquisition. That idea grew into the constitutionally protected Michigan Natural Resources Trust Fund, which has now spent more than $1 billion to give the public access to state and local parks, Great Lakes shoreline, scenic wonders, hunting and fishing recreation, public forestland, and more.
The parallel to Line 5 is not exact except in its lesson that a persistent, well-organized, and well-informed citizen coalition is critical to protecting the best of Michigan. And it shows that public officials who look beyond the moment can take action with significance for decades to come.
Last week’s announcement was one of the finest hours in Michigan’s conservation history. The battle is far from over, but it is headed toward protection of our Great Lakes. I am proud that FLOW and its public trust law and advocacy were a big part of it.
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.
Jim Olson is FLOW’s Founder, President, and Legal Advisor
By Jim Olson
The citizens of Toledo, Ohio, desperate to end the continuing plague of toxic algal blooms covering the western one-third of Lake Erie, in February 2019 passed by referendum a municipal ordinance that enacted the “Lake Erie Bill of Rights.” The Bill of Rights holds that “Lake Erie, and the Lake Erie watershed, possess the right to exist, flourish, and naturally evolve.” The State of Ohio, joined at the hip by big agricultural corporations, challenged the ordinance in the courts and, for the moment, put an end to this new municipal law that sought to create rights of nature.
The Lake Erie Bill of Rights is part of a larger stage: The rapidly increasing worldwide movement to recognize nature as a being or “person,” has become a rallying cry to address the growing irrefutable evidence of the connection between systemic threats to water and the environment, and human and cultural survival.
Actor and producer Mark Ruffalo’s compelling documentary on the rights of nature movement, Invisible Hand, illustrates the gravity of the systemic threats to earth and water on which health and all life depends.
Like the movement to shift our perception that in the 1970s resulted in the rights of citizens to bring lawsuits to protect the air, water, and environment, Ruffalo’s film dramatizes the declaration of the rights of nature itself, concluding that nature, its rivers, lakes, and biotic systems must be protected by government as living beings. Indeed, if government fails to fulfill its duty to protect nature as it would any person, then, in the same way people can bring lawsuits to protect themselves and the environment, natural living ecosystems, such as Lake Erie, under some type of guardianship can, too.
The recognition of rights of nature or a body of water attracts more and more support worldwide because it is something ordinary people and communities facing serious threats to water from climate change and government indifference can understand and support. It establishes a scaffolding for humans to shift the way we see nature in the first place—a shift from a “property” or physical orientation to one that embraces relationship to a tree, lake, or a river. This is not new for many indigenous people around the world who see nature as not apart, but beings in relation to themselves. But it is new to those more accustomed to seeing everything autonomously, each object bouncing back and forth as separate, unrelated pith balls in a Newtonian world.
Yet while a change like the Lake Erie Bill of Rights calls for more humility and fundamental respect toward nature, from a purely legal or legal policy standpoint, it doesn’t change the basic reality that if government fails to protect nature as a “person” or “natural object,” a person has to step in as an appointed guardian to speak for this new “person.” In most countries, and all of the states or provinces in North America, the only way to do this is for people to march to the state or provincial capitol or file lawsuits on behalf of nature in the courts.
In the 1970s, the states and federal government passed laws giving citizens the legal “standing” to file lawsuits to protect their use and dependence on the environment. The rights of nature movement, if enacted as in New Zealand and attempted for Lake Erie, whether by constitutional amendment or a new law, would grant legal “standing” to the lake, river, forest, or watershed itself. But if this happens, and it should, does it change the fact that citizens, that is human beings, must still insist on that protection by filing lawsuits based on legal standing as they have done since the 1970s?
Toledo’s Lake Erie Bill of Rights clearly created the right, or standing, for citizens to go after the state, but it didn’t establish a remedy. The court ruled the city didn’t have the power to pass a law to protect Lake Erie because it is the state that holds Lake Erie for the benefit of citizens, and only it could pass laws to protect it. Clearly, then, legal standing is not enough.
I suppose a state can pass a new law that grants legal rights to a lake or river, and that because of this, a person could file a lawsuit, perhaps as appointed guardian, in the name of a natural living feature like Lake Erie. And, I suppose, too, that a court would be compelled to grant standing to the lake or river that has been or is threatened with harm, and protect the water and ecosystem that is part of this “person,” as authorized by the new law. Is this different from what people do now? People have been filing lawsuits to protect nature for the last 50 years. But here we are in 2020, facing the cataclysmic demise of the earth and its water—the fading blue planet we’ve seen from outer space during this same 50 years—despite being armed with laws and the right to sue when government and corporations pollute, impair, or destroy anatural systems.
However, this does not mean from a cultural, educational, and advocacy viewpoint, the rights of nature are not important. I think they are. Here’s why.
The Importance of the Rights of Nature and Its Link to the Public Trust Doctrine
First, with the recognition of rights of nature, as noted above, people experience a relationship between themselves and nature, both connected and worthy of protection as “beings” or a life form. When this happens, people are more likely to protect that relationship when it is harmed or threatened with harm, and expect the law to recognize it as the status quo of a viable and sustainable being. Courts or legislatures are more likely to be receptive and understand this, too, and therefore articulate new laws or pass constitutional provisions that declare rights, protection, and enforcement of the violation of the duty to protect or sustain these rights of nature. Perhaps equally important, if not more so, people will become more likely to see nature, ontologically speaking, as beingness. In this way, people can bring civil actions to insist that those new “rights of nature” by a local initiative or law are protected, and the burden is shifted to those who threaten or or alter these rights of nature or being to prove that there is no likely harm to water and nature..
Second, as people search our existing laws, particularly the common law associated with common property of a special character like oceans, rivers, lakes, streams, and their tributary groundwater, they will discover there already exists a legal protection of our relationship to nature as if nature is a being. It’s called the public trust doctrine. The doctrine applies to watersheds and the waters that flow through and define them. Under the public trust doctrine, government has a high, solemn, and perpetual duty to protect these special commons and the public’s use of them from impairment, subordination, or alienation for private control. This trust establishes a legal relationship, just like a trust created with a bank as trustee, among the trustee, beneficiaries, and the commons in nature like water, which establishes a three-way relationship. If the government breaches or fails its duty as trustee to protect the rights or beingness of nature, citizens as legal beneficiaries have a legal right, standing, and claim or civil action against government as trustee to protect both the commons, the natural beingness, and the people and species who depend on it.
Like “rights of nature,” the public trust doctrine calls for respect of the beingness or personhood of nature, and at the same time protects a citizen’s right to bring an action to protect this personhood and the essential protected use of water or ecosystems, such as fishing, drinking water, sustenance, and health.
Citizens have successfully protected water and other special natural commons through numerous public trust cases for more than 100 years. The most visible examples are the beachwalking cases, e.g. National Audubon v Los Angeles Superior Court (“Mono Lake” case), Illinois Central Railroad v Illinois (the Great Lakes are held in public trust), and Glass v Goeckle in Michigan or the Gunderson v Indiana cases (the right of the public to beach access to navigable waters). The children’s trust and other public trust cases, like Juliana v U.S., also seek to address the systemic effects of human behavior, like the diversion of a river, the conversion of a lake to a private industrial complex, or the ruin of a rainforest, and the massive, myriad irreparable harms and disease caused by climate change to the public trust in our waters and the ecosystems, watersheds, and people who depend on them.
Michigan a Forerunner with the MEPA
In Michigan, for example, the Legislature in 1970 established the right of citizens to bring claims against those who pollute, impair, or destroy the air, water, and natural resources or the public trust in those resources. (To trace Michigan’s related history, seeThe MEPA Turns 50). So, there is the right, standing, and the claim by statute, and as described above, under the common law of public trust. Because these claims already exist, the declaration of the rights of Lake Erie or nature are an inspiration and aspiration, the public trust doctrine or statutes like the Michigan Environmental Protection Act (“MEPA”) provide the standing, claim, and remedy for damages or court orders to stop the conduct causing or contributing to the harm. The Environmental Law and Policy Center filed suit under the Clean Water Act and forced the U.S. EPA and State of Ohio to declare the open waters and shore waters of Lake Erie “impaired.” As a complement to an often long process to establish enforceable phosphorus limits, known as total maximum daily loads (TMDLs), the public trust doctrine and the MEPA provide immediate claim for impairment of Lake Erie based on these findings that Lake Erie is impaired.
If the connection between the rights and respect toward nature and the public trust in water underlying nature is recognized, and if they are married to each other, viewed as inseparable, then the rights of nature and the public trust doctrine become the umbrella, the backstop, the overarching framework to protect nature and humans as persons or beingness, as a whole. Under public trust law, people and natural beings don’t have to wait for a state or nation to enact a constitutional amendment or new law declaring “rights of nature,” people and nature’s commons don’t have to wait another 4 or 5 years for governments to adopt a phosphorous standard to end the destruction of western Lake Erie. They can bring a lawsuit, and ask the court to protect Lake Erie as a being or body of the trust, and the rights that they enjoy and depend on for drinking water, fish, economy, and sustenance of life.
In short, the rights of nature or rights of Lake Erie are the flags to rally around, and the public trust doctrine is the legal framework and set of principles to halt the undisputed impairment from toxic algal blooms of Lake Erie to protect the rights of nature. People and nature don’t have to suffer the continuing destruction of Lake Erie, they, as persons, have a right and remedy that saves Lake Erie:
It’s time for Mark Ruffalo to produce his next film, a sequel and love story— “The Marriage between the Rights of Nature and the Public Trust Doctrine!”
While legitimately showcasing much good news about policies and programs benefiting the Lakes, the report joined the ranks of many that don’t say enough about the conditions of the Great Lakes themselves.
It wasn’t supposed to be this way. When the Michigan Legislature and Governor in 1985 enacted a statutory requirement for an annual report on the state of the Great Lakes, they envisioned a science-based report card on the health of the waters and related resources of the Lakes themselves. Which pollutants are increasing and which are decreasing in Great Lakes waters? What are quantitative trends in beach closings and key populations of critical aquatic species? What indicators of climate change are manifesting in the Great Lakes?
But almost since the first day, and especially under former Gov. John Engler, Michigan’s Great Lakes report has amounted mostly to agency self-praise for a job well done.
Likewise, other Great Lakes institutions have had struggles coming up with objective indicators measuring the health of the Lakes, although they are now making some progress. Under the US-CanadaGreat Lakes Water Quality Agreement of 2012, the two nations are required to issue a State of the Great Lakes report every three years. Released in May, themost recent report finds:
“Overall, the Great Lakes are assessed as Fair and Unchanging. While progress to restore and protect the Great Lakes has occurred, including the reduction of toxic chemicals, the indicator assessments demonstrate that there are still significant challenges, including the impacts of nutrients and invasive species. The continued actions of many groups and individuals are contributing to the improvements in the Great Lakes.”
The assessment may be overly generous — but even if accurate, its “fair and unchanging” verdict translates at best to a C+. That is far from great effort on behalf of the Great Lakes. We can and must do better.
Back to the new Michigan report: It doesn’t attempt such a report card, but does deliver interesting news on drinking water rules for PFAS and other contaminants, high Great Lakes water levels, Asian carp and research on harmful algae blooms. As a “State of Great Lakes Programs” report, it offers some food for thought — but it doesn’t tell you scientifically where the health of the Lakes is headed.
One highlight of the EGLE report, however, is a discussion of the public trust doctrine, FLOW’s central organizing principle. The report observes:
“The basic premise behind much of the Great Lakes legal protection is the idea that surface water itself is not property of the state, but a public good. Over the years, a number of court cases have firmly established this legal principle, known as the ‘public trust doctrine.’ The public trust doctrine means protecting public water resources for the use and enjoyment of all. Under the public trust doctrine, the state acts as a trustee who is empowered to protect the water.”
We applaud EGLE’s recognition of its trustee role, and encourage Gov, Gretchen Whitmer and EGLE Director Liesl Clark to rely on the public trust doctrine to guide them as they consider their decisions on Line 5, Nestlé water withdrawals, and other weighty matters.
Sometimes Michiganders take for granted the abundance of water that surrounds us and flows beneath us. In the midst of Michigan Great Lakes and Fresh Water Week (August 8-16), reflecting on that endowment is timely.
We often forget that a large proportion of Michigan is underwater. Considering only the land area of Michigan, it’s the 22nd largest state; add in the more than 38,000 square miles of land underwater that belongs to Michigan in four of the five Great Lakes, and Michigan vaults to 11th place. In fact, Michigan has more land underwater than Indiana has above water. These lands and the waters over them are protected by the public trust doctrine and are to be protected in a manner that does not impair public uses.
The sheer size of Lake Superior is also not to be taken for granted. The largest lake by surface area in the world, Superior is as large as the other four Great Lakes—plus three additional Lake Eries.
Groundwater is often overlooked because we see it only when we use it. But it supplies 45% of Michigan’s population with drinking water, and the volume of groundwater in the Great Lakes basin is equivalent to that of Lake Huron—making it, in FLOW’s analogy, the Sixth Great Lake.
Michigan has over 36,000 miles of streams and rivers, 11,000 inland lakes, and approximately 6.5 million acres of wetlands (down from approximately 10.7 million acres before European settlement began).
Finally, Michigan has about 3,300 miles of Great Lakes shoreline. (For comparison, the flight distance from Detroit to Los Angeles is approximately 2,000 miles.)
Michigan Great Lakes and Fresh Water Week is designed to encourage the public to take direct action to protect our waters. What will you do?
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
Line 5 in Court: Watch Live on Friday, May 22, at 9 a.m. EST
The public can watch this legal effort by the State of Michigan to shut down Line 5, which is supported FLOW and other organizations standing up for the public trust in our Great Lakes. This case is set for oral argument at 9 a.m. on Friday, May 22. According to the Court, you may watch the hearing by tuning in to the livestream on Judge Jamo’s YouTube Channel.
After 6 years of stalling and unfulfilled promises by former Governor Rick Snyder’s administration and former Attorney General Bill Schuette, Michigan voters in 2018 ushered in new leaders—Governor Gretchen Whitmer and Attorney General Dana Nessel, who pledged to end Line 5’s threat to the Straits, where Lake Michigan converges and collides with Lake Huron.
Last June, Attorney General Nessel fulfilled her promise to take swift, strong action to bring an end to the unacceptable, massive, catastrophic risk of damage to the Great Lakes posed by Enbridge’s 67-year-old Line 5 the Straits of Mackinac.
Growing Pile of Evidence against Line 5
The State of Michigan’s legal action comes in response to growing evidence of Line 5’s failed design, anchor strikes, strong currents, sloughing and shored-up pipelines operating beyond their life expectancy, admitted inability to clean up a spill, and a conservative, worst-case scenario rupture from an anchor strike (which actually happened on April 1, 2018, narrowly avoiding a spill) forecast to trigger more than $6 billion of measurable damages. Scientific studies show that a spill would smother several hundred miles of shoreline, affect up to 60 percent of Lake Huron’s surface area and a substantial portion of Lake Michigan, close drinking water and sanitation systems of cities like Mackinac Island, shut down fishing, kill fish and fish habitat, halt shipping, and cause irreparable damage and impairment of public uses, private property, businesses, and the ecological diversity of the upper reaches of two Great Lakes.
As the chief legal officer of the people of Michigan, A.G. Nessel filed a lawsuit, not just as an attorney, but as the named Plaintiff for the People of Michigan—she is bringing this action as Attorney General and on behalf of the citizens of Michigan to decommission and shut down Line 5 because of its unlawful breach of the public trust in the Great Lakes, failing design and imminent risks in the Straits of Mackinac.
Historic Public Trust Case the First brought by a Michigan Attorney General for the People in 60 Years
The attorney general’s action is truly historic. Why?
It has been 60 years since an Attorney General of Michigan filed a lawsuit to protect the paramount public trust in the Great Lakes and legal rights of citizens as beneficiaries to enjoy and use our waters for navigation, fishing, boating, drinking water, swimming, historic and biological research, and recreation. That’s right. It’s been 60 years since then Michigan Attorney General, later state Supreme Court Justice, Paul Adams won a landmark victory in 1960 in Obrecht v National Gypsum Co. (361 Mich 399 (1960)), a landmark Michigan Supreme Court case putting a stop to unauthorized industrial encroachment and risk to the public trust and paramount protected uses of our Great Lakes.
Cottage owners and citizens along the shore of Lake Huron filed a lawsuit to stop the encroachment of a large industrial loading dock to reach ships a quarter-mile into Lake Huron. Justice Adams intervened as a party in the case and aligned himself and the People of Michigan with the cottagers and citizens whose use and enjoyment of the trust waters of Lake Huron would be subordinated to the private use of the industrial dock and mining company. After an extensive battle in the lower courts and arguments in the Supreme Court, the Court sided with Justice Adams and the people of Michigan.
Writing for the Court, Justice Black, a lawyer from the shoreline City of Port Huron, foreshadowed the future battles over the Great Lakes:
The last great frontiers of Michigan’s public domain lie submerged between her thousands of miles of shoreline… [T]he courts of these inland coastal states may well brace themselves for a series of new questions having to do with the nature and alienability of sovereign title to such domain and the inevitable collision of riparian rights… with the sovereign responsibility [of the state] as permanent trustee thereof. These cases become a notable forerunner. (Id. 361 Mich at 403)
The defendant National Gypsum Corporation claimed the private riparian right as owner of lake frontage to build a dock into the lake as far as needed to reach deep-draft ships. Justice Adams and his allies argued that the private right was subordinate to the public trust rights of citizens. Reaching back to 100 years of court fights over the St. Clair Flats and Lake Michigan, and relying on the 1892 U.S. Supreme Court Illinois Central case that ruled the Great Lakes were subject to the public trust doctrine, our Michigan Court ruled that a private corporation could not subordinate or alienate the public trust in the Great Lakes:
No part of the beds of the Great Lakes, belonging to Michigan can be alienated or otherwise devoted to private use in the absence of due finding of one of two exceptional reasons for such alienation or devotion to non-public use.
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No one… has the right to construct for private use a permanent deep-water dock or pier on the bottom lands of the Great Lakes… unless and until he has sought and received, from the legislature or its authorized agency, such assent based on the finding as will legally warrant the intended use of such lands. Indeed, and aside from the common law as expounded in Illinois Central, the legislature bids us construe its design and purpose ‘so as to preserve and protect the interests of the general public’ in such submerged lands and as authorizing the sale, lease, exchange or other disposition of such submerged lands when and only when it is ‘determined by the department of conservation that such lands have no substantial public value for hunting, fishing, swimming, pleasure boating or navigation and that the general public interest will not be impaired by such sales, lease or other disposition.’ (Id., at 412-413, citing and adopting Illinois Central R. Co. v. Illinois, 146 U.S. 387, 455-60 (1892)).
The Public Trust Imposes a High, Solemn Duty on the Government
Unlike other natural resource laws, the public trust imposes a high, solemn duty on the government to protect these waters, bottomlands, habitat, shorelines, and paramount public uses from private takeover or impairment (Collins v Gerhardt, 237 Mich 38, 49 (1926). The public trust doctrine imposes on the State as trustee “a high solemn and perpetual trust which it is the duty of the State to forever maintain.”). Justice Black and the Court agreed “with the attorney general that the public title and right is supreme as against National Gypsum’s asserted right of wharfage, and hold that the latter may be exercised by the Company only in accordance with the regulatory assent of the State. No such assent has been given and, for that reason alone, the chancellor erred in decreeing that National Gypsum might proceed with what in law has become, since entry of such decrees, an entry upon and unlawful detention of State property.” (Id., at 413-414)
So, in 2020 once again a collision looms over the right of a corporation to occupy for itself the state-titled trust bottomlands and waters of the Straits of Mackinac, the very heart of the Great Lakes, for its aged dual pipelines to transport crude oil to its private markets. It cannot do so without the assent of the State “in the absence of due findings” that the one or two of the narrow exceptions apply. In short, public trust law as one would expect does not authorize any deed, occupancy, or alienation of public trust bottomlands and waters except where there are findings that the private use protects and promotes the public trust interests and protected uses—navigation, fishing, boating, drinking water, swimming, and other recreational or ecological purposes—or that these treasured public trust resources have no such public value.
Courtroom Context on May 22
Let’s return to the present, May 2020. Like Paul Adams in 1960, our State Attorney General Dana Nessel and her lawyers Manning, Reichel, and Bock have filed briefs and will argue Friday that the 67-year-old Enbridge Line 5, like National Gypsum’s private industrial dock in 1960, is unlawful under the high, solemn public trust law and duties of government that apply to our Great Lakes.
The facts are undisputed. In 1953, after the legislature delegated authority to grant public utility easements over or under state lands, including our public trust Great Lakes, the Department of Conservation never made any findings that the easement to Enbridge for its dual crude oil pipelines (1) would preserve and protect the public’s public interests and uses, or (2) do not have substantial public value for navigation, fishing, boating, swimming, other accepted public trust uses. Without these findings, Line 5 must be terminated. The only way the Enbridge’s private use can be validated is for the company to apply to the State for findings in 2020 that the known risks of devastating unacceptable harm to the Great Lakes, communities, property owners, businesses and citizens is consistent with and will protect these paramount public trust uses, or that the Straits of Mackinac has no public value for these uses.
A Powerful Mix of Duty, Integrity, Courage on Display
We applaud Attorney General Nessel and her legal staff for their courage to take a stand in fulfillment of their solemn duty to protect and preserve the integrity of the public trust in our bottomlands and waters of or Great Lakes. Yes, this case is about integrity, and it has all the hallmarks to become the next historical milestone in the history and jurisprudence over the great frontier of those lands and waters between our shores.