Tag: Public Trust Doctrine

Lake Erie: Clean It Up or Admit It’s a Sacrifice Zone

Published on September 10th, 2019 by - Blog Posts, News

Photo: the algae bloom fed by excess nutrients from agricultural runoff returns to western Lake Erie each summer.

By Dave Dempsey

As the sickening annual western Lake Erie bloom neared its summer peak, news came that the major source in northwest Ohio of the excess nutrients feeding the bloom is agricultural runoff.

But this is really not news at all.

For almost 10 years, the scientific consensus has pinpointed agriculture — both the commercial fertilizer it uses and the vast quantities of animal waste it discharges — as the leading contributor to the problem. Unable to wish the problem away, but unwilling to take serious action, government officials entered into much-heralded pacts like the Western Basin of Lake Erie Collaborative Agreement to combat the algae. The June 2015 agreement called for a 20% reduction in phosphorus loading by 2020 and 40% by 2025. Yet here we are, nearing the end of 2019 with western Lake Erie resembling pea soup.  There is no reason to believe next year’s 20% target will be achieved.

It’s been five years since the August 2014 bloom that contaminated Toledo’s water supply for a weekend, leaving half a million people without drinking water — an event that many compared to the 1969 fire on the Cuyahoga River at Cleveland. The fire is said to have outraged America and played a major role in the enactment of the Clean Water Act in 1972.

Where’s the outrage and action now on Lake Erie?

All we have to show for the last five years of “cleanup” for Lake Erie is hundreds of millions, if not billions, of taxpayer dollars spent on agricultural incentives, partnerships, and research. But there is no plan to do anything serious regarding agriculture, in which a transformation is needed if the lake is to be restored.  Unconventional ideas may have to be employed, such as reverting parts of Ohio’s Great Black Swamp back to its natural state.

An equally unconventional idea is to treat factory farm pollutants as we treat other industrial sources of pollution — with tough, but fair, regulation and enforcement. But holding agricultural accountable is one of the great taboos in current U.S. politics. The lobby groups that represent agribusiness interests won’t let it happen. Only a strong wave of public opinion can erode that wall, because governments can’t or won’t do so.

In effect, without saying so, our governments are telling us that the price of food and biofuels production is a deeply compromised and impaired Lake Erie. If we want the food grown in its basin, they say, we’ll have to tolerate large algae blooms and the public health, environmental, and economic impacts they cause.

There is a better way.

After years of dragging its feet, the State of Ohio listed the waters of Lake Erie as “impaired” under the definition of the Clean Water Act.  That means it goes on a list of water bodies for which a pollution limit is established and reductions in pollution are allocated among various categories of sources. But given the unflinching opposition of the agricultural lobby to change, that process will take many years. The Toledo “bill of rights” for Lake Erie ordinance is a bold attempt to create a legal foothold for citizens and Toledo to force real change, but it remains uncertain whether this will be more than a forceful political statement with the teeth to enforce the necessary phosphorus reductions to restore the lake.

Importantly, the words “impaired” and “impairment” are associated with the public trust doctrine, a centuries-old common law principle that is also the central organizing purpose of FLOW. Among other things, the doctrine holds that governments are trustees of waters like Lake Erie and must protect them from impairment of public uses that include swimming, fishing, and boating. But the state governments whose waters directly feed into Lake Erie are failing this duty. What needs to be understood is that once public trust waters are “impaired,” as with the destruction of Lake Erie from algal blooms, citizens are the legally recognized beneficiaries of this trust, and they have the common law right as to enforce it in the courts.

Five years ago, in a report recommending steep reductions in phosphorus pollution, the International Joint Commission also recommended (at FLOW’s request) that the Lake Erie states use the public trust doctrine as a backstop when statutory laws aren’t doing the job. But it appears the states won’t fulfill their trustee obligations unless the public forces them to.

The only way to compel a cleanup of Lake Erie in our time is for citizens to bring a public trust action in the courts.  Lacking such action, we can look forward only to further lost summers in the western basin — a sacrifice zone to unsustainable agriculture.

Dave Dempsey is FLOW’s Senior Policy Adviser.

Government Must Protect the Great Lakes, our Greatest Source of Natural Capital

Published on September 4th, 2019 by - Blog Posts, High water, News

Report author Skip Pruss

By Skip Pruss

This article is excerpted from the second of four policy briefs by former FLOW board chair, and former director of the Michigan Department of Energy, Labor and Economic Growth, Skip Pruss that make the economic case for government’s role in protecting the environment.

The second policy brief, “Resetting Expectations: The Value of Natural Systems and Government’s Role in Protecting Water,” is available here to read or download as an executive summary or full report. FLOW will unveil the last two briefs in the coming months. (Pruss’ first report in the series also is available here in executive summary and in full.)

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Michigan lies at the heart of the Great Lakes, the largest fresh surface water system in the world. Harboring 95 percent of all fresh surface water in United States and 84 percent of all fresh surface water in North America, the Lakes are an enormous source of natural capital, providing direct health, economic, environmental, and ecological services to 40 million people. The Great Lakes system is a magnificent natural endowment. Sculpted by ancient retreating glaciers that left the largest interconnected body of fresh surface water in the world, the Great Lakes are truly globally unique.

We in Michigan are water rich. The Great Lakes support a $6 trillion regional economy. Water is our most valuable source of natural capital, bestowing billions of dollars in ecological services by providing fresh, potable water for consumption, recreation, agriculture, and industry. Freshwater aquatic ecosystems — our lakes, streams, rivers, groundwater and wetlands — provide drinking water, produce fish, nourish unique biological niches at the land and water interface, and provide diverse recreational opportunities. Wetlands are prolific biological nurseries harboring birds, insects, waterfowl, and aquatic organisms throughout the food chain, while purifying water, storing stormwater, recharging aquifers, and buffering nutrients — essential services that are largely unknown and unappreciated. Great Lakes fisheries alone provide more than $7 billion in annual economic benefits and support more than 75,000 jobs.

Photo: Great Lakes fisheries alone provide more than $7 billion in annual economic benefits and support more than 75,000 jobs.

With our water wealth comes special obligations of stewardship. The Great Lakes and their tributary rivers and streams belong to the public and are held in a public trust. Government, as trustee, has the responsibility to protect the trust waters from impairment and cannot allow diminishment of water quantity or water quality. Our people, our businesses, and our economy depend on the health and viability of our Great Lakes, and others less gifted by geography will set their sights on the Great Lakes. There will soon come a time when discussions about human rights in water, growing water scarcity, and the need for a more “equitable” distribution of Great Lakes’ water wealth will elevate in Congress and state legislatures.

A recent study conducted under the Resources Planning Act, a federal law requiring periodic resource assessments on forest lands and rangelands, indicates that of the 204 water basins in the United States, 145 basins will show decreases in yield over the coming decades and nearly half may experience monthly water shortages. While climate change is projected to increase precipitation in some northern regions of the United States, increased frequency of droughts will result in reduced river flows, less reservoir capacity, and decreases in soil moisture. Globally, the situation is much worse. The United Nations reports that today “over 2 billion people live in countries experiencing high water stress, and about 4 billion people experience severe water scarcity during at least one month of the year.”

Our abundant water resources will increasingly weigh to Michigan’s competitive advantage, but, more likely than not, Michigan will face future challenges from states that will be stressed by inadequate water supplies and who will look to our region with the belief and expectation that our water resources need to serve a larger geography. Our water wealth will be certain to attract a broad universe of water-dependent agricultural, commercial, and industrial private interests as well. At the same time, the chasm between the water rich and the water poor will grow. Great Lakes freshwater resources and the vital services they provide will only increase in value in a future where national and international water supplies become more stressed and attenuated.

Government, as the fiduciary charged with the protection of public trust resources, must use the tools and resources it has in terms of laws, regulations, and best practices to conserve and protect our water as a public good. Greater public understanding of the vital services water resources provide would empower citizens to participate more effectively in the political process and demand that policymakers and legislators take active measures to protect water. Intelligent, sensible water management and conservation practices and effective application of laws and regulations on the part of government to protect the waters upon which we all depend are imperative. Ultimately, our legal and moral authority to resist appropriation of our water wealth will be a function of how adept and effective we are as Great Lakes stewards in the conservation and protection of our waters.

And we must learn from our mistakes.

In Honor of Ted Curran: Friend and Founding Board Member of FLOW

Published on August 23rd, 2019 by - Blog Posts, News

Photo by Marcia Curran

By Jim Olson

President and Founder, FLOW

Ted Curran and his wife Marcia walked into my life and FLOW’s life during the fight by the Michigan Citizens for Water Conservation (MCWC) for the soul of Michigan’s public water and the Great Lakes in its lawsuit against bottled water-giant Nestlé.

I served as legal counsel in MCWC’s battle, and it was during a citizens’ meeting in the lower level of Horizon Books in downtown Traverse City that Ted and Marcia showed up to support us. When they introduced themselves after the meeting, and offered their assistance, I realized they were there because they cared not just about a single issue, but cared deeply about the common good.

Ted became a stalwart supporter of FLOW during our early years from 2009-2011 when we formed as a coalition to work to close the dangerous loopholes in the Great Lakes Compact diversion ban for bottled water and water as a product. Little did I know when I first met Ted that when he chose to work on something, he wouldn’t stop until he saw it succeed. 

Thankfully, Ted, along with our other MCWC board members, meant just that. Then he continued as a founding member of FLOW’s Board of Directors. Our mission—“Keep it plain and simple,” Ted urged: Save and sustain the waters of the Great Lakes Basin from diversion, impairment, and private control by establishing a framework and body of principles for generational stewardship.

This framework and body of principles are rooted in what is known as the common law public trust doctrine— principles that impose a duty on government, as trustee, to protect the integrity of common public waters like the Great Lakes, for citizens, as beneficiaries, from one generation to the next. Ted understood the importance of these principles, but he also understood the majestic beauty and importance of 20 percent of the world’s fresh surface water.

He rolled up his sleeves, attended most every meeting, and began to demand that we continually define and hone our mission and goals. Shortly after we formed FLOW, Ted invited me to his home on the Lake Michigan shore near Frankfort to talk over coffee. He stressed clarity in our work, and contacts with others, especially in raising funds. He urged me to reach out and follow up, and to not shy away from asking for donations, something I’ve never been very good at. He cared for FLOW, but he knew caring and missions also demanded professionalism for an organization to succeed and serve the common good.

Ted was a mentor, sharp observer, astute organizer, and quiet leader—he encouraged, asked questions to force you to think clearly, and guided strategy and direction. Ted drew on his wealth of diplomatic experience around the world—often in hot-spots like the Middle East–during his career as a one of the highest-ranking members in the United States Foreign Service, and on his deep passion for peaceful solutions in serving the common good throughout his life.

Ted’s idea of peace was not quietism when he was with us. As FLOW co-founding member Bob Otwell, former Executive Director of TART Trails, recalled, “Ted was a warm, gracious man, and at board meetings, his comments always helped move us forward with more wisdom.” Former FLOW Board Chair Mike Dettmer said, “Ted’s work, dedication, and involvement cannot be overstated. He was, and always will be a guiding light, someone who kept us moving in the right direction, and when we strayed, he gently, firmly called us on it.”

As FLOW Executive Director Liz Kirkwood said, “Ted was there in the early days, for meetings, events, outreach, and fundraising. He would always take me aside, reminding me about details, people to contact, and always to keep raising funds. His words and actions were, and remain, an encouragement and reminder that good things come about with faith and action.”

These qualities of clarity, grace, wisdom, and a keen sense of the right thing to do, and then to do it, are something that he and Marcia seemed to have shared throughout their entire life of more than 60 years together.

Ted, you lived for community and the common good of humanity. We miss you. Thank you for your solid, kind service and friendship to all of us here in Northern Michigan. We’ll always think of you when we look at the majestic Great Lakes that you cherished. You have been, and will continue to be, a beacon of light.

A memorial service is planned at St. Andrews Presbyterian Church, Beulah, Michigan, for 2 p.m., Friday, Aug. 23, 2019. For more on Ted’s full life, read his beautiful obituary here.

Resetting Expectations: the Value of Natural Systems and Government’s Role in Protecting Water

Published on August 9th, 2019 by - Blog Posts, News, Reports & Media Releases

Report author Skip Pruss

This is the second of four policy briefs by former FLOW board chair, and former director of the Michigan Department of Energy, Labor and Economic Growth, Skip Pruss that make the economic case for government’s role in protecting the environment. FLOW will unveil the last two briefs in the coming months.

Click here to read the full 2nd report. 

And in case you missed it, click here to read the full 1st report in the series and here to access its executive summary.

The health and well-being of our state, our country, and our planet are dependent on maintaining the productive capacity of nature and the services it provides. Though not widely recognized or acknowledged, “natural capital” and the services provided by healthy ecosystems have always been the foundation upon which societies thrive and prosper.

The relatively new science of ecological economics now provides the means of assessing and quantifying the value of natural capital and related ecological services. The science indicates that natural systems endow trillions of dollars of annual benefits that society overlooks and takes for granted, yet undergird all global economies. Determining the value of natural capital and the associated ecological services provides a means of measuring and understanding the economic value of the natural world. Accurate data and unbiased information about the value of nature and the services natural systems provide are essential to inform public policy and legislative action.

Although there are many human impacts that impair and diminish natural systems, reducing the value and economic efficiency of natural systems, no greater threat exists than the warming of the planet caused by the continued emission of anthropogenic greenhouse gases, primarily from the combustion of fossil fuels. Recent assessments indicate that greenhouse gas emissions will cause future damages of more than $50 trillion by 2050, and the economic burden will disproportionally fall on developing economies. Decarbonization of the global economy by transition to clean energy sources is imperative. The good news is that there is a clear consensus emerging that the energy transition is not only technically and economically feasible, but also that the global economic benefits from decarbonizing the global economy are substantial, including safeguarding the Great Lakes freshwater system from the worst effects of climate change. Government’s role in accelerating the energy transition is essential.

Michigan’s water resources are a rich source of natural capital and provide significant ecological services that will become more valuable over time. Our abundant water resources will increasingly weigh to Michigan’s competitive advantage, but more likely than not, Michigan will face future challenges from states that will be stressed by inadequate water supplies and from water-dependent agricultural, commercial, and industrial interests. Our legal and moral authority to resist appropriation of our water wealth will be a function of how adept and effective we are as Great Lakes stewards in the conservation and protection of our water.

In this, governance in Michigan is failing. The Flint water crisis is a stark lesson in the pitfalls of overriding and ignoring government standards intended to safeguard public health and safety. The PFAS crisis is attributable to the inadequacies of existing environmental laws, exacerbated by failed government leadership that ignored the findings and recommendations of the scientific professionals. Both the Flint crisis and PFAS concerns are incidents of a much larger systemic problem—groundwater contamination that is pervasive, yet is being ignored by policymakers and political leaders.

The water-related exigencies Michigan is experiencing call for broader application of the Public Trust Doctrine to reestablish and reaffirm government’s responsibility to protect and safeguard water resources for the benefit of the public. Recognizing the interdependence of natural systems and the importance and value of the ecological services that water resources provide, the Public Trust Doctrine must be applied aggressively and proactively to address conditions that have the potential to harm or impair commonly held water resources.

Report’s Key Facts

  • Science informs us that nature and natural systems endow trillions of dollars of annual benefits that society overlooks and takes for granted, yet undergird all global economies.
  • Though not widely recognized or acknowledged, “natural capital” and the services provided by healthy ecosystems have always been the foundation upon which societies thrive and prosper.
  • There is not only an absence of tension between environmental protection and economic performance, but in fact, the health of the environment and long-term economic growth and prosperity are mutually dependent and inextricably interconnected.
  • Although there are many human impacts that impair and diminish natural systems reducing the value and economic efficiency of natural systems, no greater threat exists than the warming of the planet caused by the continued emission of anthropogenic greenhouse gases, primarily from the combustion of fossil fuels.
  • Recent assessments indicate that greenhouse gas emissions will cause future damages of more than $50 trillion by 2050 and the economic burden will disproportionally fall on developing economies.
  • Climate changes predicted for the Great Lakes Region include increased precipitation with a larger percentage of annual rainfall occurring in heavy precipitation events causing flooding, increasing soil erosion and nutrient loadings to tributary streams and rivers. More precipitation will also increase the frequency and amount of sewage overflows and further the propagation of algae, including cyanobacteria resulting in declining water quality and beach health. 
  • Warmer lake water temperatures will affect the distribution of fish by advantaging warm-water species over cold-water species, change aquatic plants and benthic communities, and accelerate eutrophication.
  • Decarbonization of the global economy by transition to clean energy sources including safeguarding the Great Lakes freshwater system from the worst effects of climate change is imperative. The good news is that there is a clear consensus emerging that the energy transition is not only technically and economically feasible, the economic benefit of the global energy transition would range from $65-160 trillion by 2050.
  • Safeguarding water resources and the ecological services they provide will become more challenging in a world where rising demand encounters growing water scarcity.
  • Escalating future demand and competition for water resources, intensified by a warming climate, will enhance the value of Great Lakes water, potentially increasing the chasm between the water rich and water poor.
  • Policymakers must come to recognize the importance of applying the Public Trust Doctrine to modern societal needs, the imperatives of evolving science, and to ensure water equity.
  • FLOW advocates for an expanded application of the Public Trust Doctrine to act as a shield for protecting water resources against activities that would reduce the quantity or quality of water or threaten to diminish or reduce the value of the ecological services the waters provide to the public.

Government’s Role in Protecting Human Health and the Environment

Since the 1970s, history has shown that government interventions requiring protection for human health and the environment through more stringent environmental laws have not only improved baseline conditions of our environment like air and water quality, but have also improved overall economic conditions. These studies, some of which were described in the first policy brief in this series, demonstrate the economic value of government-mandated protective standards by quantifying the benefits of protections aimed at improving public health and safeguarding the environment, as well as the high cost to the economy and public health of failing to protect the environment through adequate regulation.

Our politics fail to take into account the overwhelming benefits accruing to the public by the protections and safeguards effectuated by environmental standards. Though the political narrative has recently evolved to the point where some political leaders publicly acknowledge that there is “no conflict between economic performance and environmental protection” recognizing that society can have both, the reality, clearly found in the relatively new field of environmental economics, is that economic prosperity, indeed the world’s economies, are ultimately dependent on protecting the planet and the valuable resources that well-balanced natural systems provide. In economic terms, there is not only an absence of tension between environmental protection and economic performance, but in fact, the health of the environment and long-term economic sustainability and prosperity are mutually dependent and inextricably interconnected.

It is imperative that political leaders, policymakers, and citizens come to understand this critical association.

No ‘Line 5’ Oil Tunnel in the Great Lakes!

Published on August 7th, 2019 by - Blog Posts, News

Photo: FLOW Deputy Director Kelly Thayer speaks to the Grand Traverse County Board in opposition to a pro-oil tunnel resolution.

By Kelly Thayer

Confronted at 8 a.m. on a Wednesday by a full audience passionately and unanimously against a proposed Line 5 oil tunnel in the Straits of Mackinac, the Grand Traverse County Board of Commissioners voted today to temporarily table a misguided and error-filled resolution supporting the oil tunnel. (Click here to view a video of the meeting, once posted by the county).

Some commissioners also could be heard chatting among themselves before the meeting about the voluminous amount of emailed comments against the oil tunnel that they also received in the hours leading up to the session, as local citizen groups spread the word of the pending vote.

While the outcome was received as a temporary victory in the moment by many in attendance, vigilance still is required. The resolution, which had been expected to gain quick approval, will likely come back for reconsideration — perhaps at a tentatively scheduled 8 a.m., August 14, study session — and then a possible vote at the Grand Traverse County Board’s next regular meeting at 8 a.m. on Wednesday, August 21, at the Governmental Center at 400 Boardman Ave. in Traverse City.

“I was elected to work for the public interest and the people of Grand Traverse County, not the bottom line of a foreign oil company with a troubling safety record and equally troubling transparency practices,” said Commissioner Betsy Coffia after the meeting, who was prepared to oppose the symbolic resolution. “Enbridge pays a lot of lobbyists and lawyers to carry water for them. I don’t think it’s the job of the Grand Traverse County Commission to do that work for them.”

Only one county in Michigan—Dickinson in the Upper Peninsula—to date has approved the model resolution that bears close resemblance to talking points that Line 5-owner Enbridge has circulated for many months. The resolution tabled by Grand Traverse County Commissioners proposes to send “this resolution to all counties of Michigan as an invitation to join in expressing support” for the oil tunnel owned by Canadian-based Enbridge.

Dozens of people representing themselves, families, Indian tribes, businesses, environmental groups, and others attended and many spoke up against the oil tunnel and for protection of the Great Lakes, drinking water, public trust and tribal rights, and the Pure Michigan tourist economy.

FLOW and its team of lawyers, scientists, engineers, and an international risk expert since 2013 have studied the increasing threat from Line 5 in the Straits of Mackinac and, more recently, the proposed Line 5 oil tunnel.

FLOW Deputy Director Kelly Thayer read a statement calling on the county board to reject the oil tunnel resolution, which in its first sentence, incorrectly states the age of the decaying pipeline and claims an admirable safety record that is at odds with the reality that Line 5 has leaked at least 33 times, spilling a total of 1.1 million gallons of oil in Michigan and Wisconsin.

“It is critical for the Grand Traverse Board of County Commissioners to understand that—with the proposed resolution in your packet—the Board is being asked to interfere in ongoing litigation between the State of Michigan and Enbridge,” Thayer said. “In addition, there are at least four other active lawsuits against Enbridge and Line 5. Therefore, this type of resolution is misguided and not in Grand Traverse County’s, nor the public, interest.”

In March, Michigan Attorney General Dana Nessel found that the tunnel bill that became law was unconstitutional. In early June, Enbridge sued the State of Michigan to resuscitate the tunnel legislation. And in late June, the State of Michigan sued Enbridge to revoke the 1953 easement that conditionally authorized Enbridge to pump oil through the twin pipelines.

Attorney General Nessel’s lawsuit alleges that Enbridge’s continued operation of Line 5 in the Straits violates the Public Trust Doctrine, is a common law public nuisance, and violates the Michigan Environmental Protection Act based on potential pollution, impairment, and destruction of water and other natural resources.

“Why would the current Grand Traverse County Board, which—to our knowledge—has never studied nor discussed the threat from Line 5, take a leap of faith in supporting a Canadian oil pipeline company’s alternative that diverts attention from the real problem—the bent, cracked, and encrusted oil pipelines in the Straits?,” Thayer asked.

Enbridge wants the right to bore a tunnel in the next 5-10 years for Line 5 through State of Michigan public trust bottomlands under the Straits, where Lake Michigan meets Lake Huron.

Enbridge also wants to keep pumping up to 23 million gallons of oil and natural gas liquids a day through the decaying, 66-year-old Line 5 pipelines in the Straits during tunnel feasibility studies and construction. An oil tunnel also would fail to address the risk posed by Line 5’s more than 400 stream and river crossings in the Upper and Lower Peninsulas and would conflict with Michigan Gov. Gretchen Whitmer’s plans to combat climate change.

The City of Mackinac Island, Grand Traverse Band of Ottawa and Chippewa Indians, and the Straits of Mackinac Alliance citizen group also have filed a contested case challenging Enbridge’s claim that installing hundreds of anchor supports to shore up the decaying Line 5 is mere maintenance, rather than a major redesign requiring an application and alternatives analysis under the 1955 Great Lakes Submerged Lands Act (GLSLA) and public trust law that apply to the soils and waters of the Great Lakes. Line 5-related lawsuits against the U.S. Coast Guard and against Enbridge in Wisconsin also continue.

FLOW and other Great Lakes advocates have long called for shutting down Line 5, which primarily serves Canada’s, not Michigan’s, needs and threatens the Great Lakes. FLOW research shows that viable alternatives exist to deliver propane to Michigan and oil to regional refineries, and Gov. Whitmer has formed an Upper Peninsula Energy Task Force to identify energy supply options. The system can adjust with smart planning.

You can learn more by visiting FLOW’s Line 5 program page and by downloading a copy of FLOW’s latest:

And you can contact the Grand Traverse County Board of Commissioners here:

  • Rob Hentschel, chair, rhentschel@grandtraverse.org or 231-946-4277
  • Ron Clous, vice chair, rclous@grandtraverse.org or 231-590-3316
  • Brad Jewett (introduced the pro-tunnel resolution) bjewett@grandtraverse.org or 231-633-9421
  • Betsy Coffia, bcoffia@grandtraverse.org or 231-714-9598
  • Bryce Hundley, bhundley@grandtraverse.org or 231-753-8602
  • Gordie LaPointe, glapointe@grandtraverse.org or 231-409-2607
  • Sonny Wheelock, swheelock@grandtraverse.org or 231-947-3277

The Public Trust and YOU

Published on July 1st, 2019 by - Blog Posts, News

“The Great Lakes belong to all of us. It’s in our DNA,” said FLOW executive director Liz Kirkwood. “We know that those waters that surround us, that bathe us, that nurture us underneath our feet, are inalienable rights for all.”

During this high-water month of July, FLOW will publish video postcards each weekday that feature Michiganders (and citizens of the Great Lakes Basin) explaining what the Public Trust Doctrine means to us and how our precious, publicly-owned fresh water shapes our lives and relationship to this place we call home.

“We chose July because this is the height of summer and the connections people have with our waters,” added Kirkwood. “This is an opportunity for us to renew our commitment to the Great Lakes and think about what stewardship really means. What will we do to make sure these waters are protected for our children and our children’s children?”

At its core, the Public Trust is a set of legal principles establishing the public right to our natural resources. It also establishes the government’s responsibility to protect public health and public rights to use those natural resources. Our goal is to increase everyday awareness about the Public Trust and make it feel less like a legal term and more like an existential code by which we all live.

We saw the Public Trust Doctrine in action last week when the State of Michigan and Attorney General Dana Nessel took the important step of defending the Great Lakes by suing Enbridge and alleging that its occupation of Line 5 violates the Public Trust.

“When Michigan and other states joined this country, the states took title to all navigable waters and the soils beneath them like the Great Lakes in trust for the benefit of its citizens,” said Jim Olson, FLOW president and founder and nationally recognized expert on public trust law. “This means the State has a duty to protect these waters, soils, natural resources, and the rights and uses of citizens from one generation to the next.

“Every citizen is a legally recognized beneficiary for use and enjoyment of these public trust resources for fishing, boating, drinking water, bathing, swimming, and other recreational activities. Governments and private persons cannot interfere with, impair, dispose of or alienate these public trust resources or preferred public rights and uses.”

Olson underscored the importance of the Public Trust Doctrine and its principles at this time in history.

“Whether oil pipelines in the Great Lakes, toxic algae and ‘dead zones’ in Lake Erie, Green Bay, or along Sleeping Bear Dunes, the sale and private control of public water, changes in water levels, erosion, flooding and damage to piers, docks, roads, water infrastructure from global warming and climate climate, the public trust in our waters offers all of us a path forward to address the existing damage and threats, and the world water and climate crisis. When government fails or others refuse to change, citizens have the right to enforce the law to protect their rights and the common good of the community, and their children and grandchildren.”

Our Public Trust video postcards this month will feature everyone from a U.S. Senator and a state Attorney General, to leading environmental advocates, to poets and dancers, to boaters and fishermen, to everyday citizens recreating, beach walking and swimming in their public waters. Through these videos, we hope to empower citizens, educate people about beach access rights, discuss the importance of protecting our groundwater, and reinforce the importance of protecting our freshwater in the age of Climate Change.

On the Fourth of July, we’ll also unveil an online “Public Trust Passport” that you can view, download or print, and use as a handy guide to learn more about your freshwater recreation rights.

Stay tuned to FLOW’s social media feed to learn why Sen. Gary Peters loves backpacking at Isle Royal National Park, why poet Anne-Marie Oomen loves to paddleboard, why toddler Judah Heitman digs swimming and kayaking, and the lifelong resonance of fly fishing with her father on the Boardman River for dancer Sarah Wolff.

Attorney General Nessel, Governor Whitmer Take Bold Legal Actions to Shut Down Line 5 and Apply Rule of Law

Published on June 27th, 2019 by - Blog Posts, News

Today represents a historic turning point for all Michiganders. Attorney General (AG) Dana Nessel took decisive legal action on Pipeline 5 in the Straits of Mackinac when she filed suit in Ingham County Circuit Court to revoke the 1953 Easement that conditionally authorized Enbridge to pump oil through twin pipelines.

Nessel’s lawsuit alleges that Enbridge’s continued operation of the Straits Pipelines violates the Public Trust Doctrine, is a common law public nuisance, and violates the Michigan Environmental Protection Act because it is likely to cause pollution, impairment, and destruction of water and other natural resources. Simultaneously, Governor Whitmer and the natural resources and environmental protection agencies have taken action through the AG to dismiss Enbridge’s June 6 lawsuit to defend the public’s rights and waters of the Great Lakes. 

“I have consistently stated that Enbridge’s pipelines in the Straits need to be shut down as soon as possible because they present an unacceptable risk to the Great Lakes,” said the Attorney General. “Governor Whitmer tried her best to reach an agreement that would remove the pipelines from the Straits on an expedited basis, but Enbridge walked away from negotiations and instead filed a lawsuit against the state. Once that occurred, there was no need for further delay.”

Gov. Gretchen Whitmer also ordered the Michigan Department of Natural Resources to review violations of the Line 5 easement. As the state’s top leader and public trustee, Whitmer has the express legal authority to revoke the easement to start decommissioning the pipeline.

“The governor’s primary goal has always been and remains to get the Line 5 dual pipelines out of the Straits of Mackinac as soon as possible,” said Whitmer’s press secretary Tiffany Brown today in a statement. “The risk of a catastrophic oil spill in the Great Lakes, and the harm that would follow to Michigan’s economy, tourism, and our way of life, is far too great to allow the pipelines to continue to operate indefinitely. As a recent National Transportation Safety Board report documented, any doubt as to the risk posed by Line 5 was erased in April 2018 when a barge dragging a 12,000-pound anchor nearly caused disaster.” 

FLOW (For Love of Water) commends Attorney General Nessel’s and Governor Whitmer’s legal actions against Enbridge. It’s about time Michigan’s government is standing up for our public waters — waters located in arguably the worst possible place in the Great Lakes for an oil spill to happen.

“Today, Attorney General Nessel returns Michigan and the protection of its citizens, taxpayers, and the Great Lakes to the rule of law,” said Jim Olson, president and founder of FLOW. “Governor Whitmer’s action on behalf of the state to nullify the lame-duck tunnel agreements also returns Michigan to the rule of law. They should be thanked. No, they should be applauded.”

Nessel’s move comes three weeks after Enbridge sued the State of Michigan on June 6 to claim its right to continue operating Line 5 and to build and operate a tunnel under the Great Lakes for the next 99 years. It comes just over six months after former Governor Snyder, former Attorney General Schuette and lawmakers gifted Enbridge a one-sided law and set of agreements during their last days in office that handed control of Great Lakes waters and soils beneath the Straits of Mackinac to a private Canadian company for its private gain.

Act 359 and the agreements during the 2018 lame-duck session were designed to allow Enbridge to continue the dangerous and unacceptably grave risks of a failing Line 5 design until the company builds a tunnel to lease for the next 99 years, with massive potential liabilities for the State and citizen taxpayers.

“The deal was approved by a lame-duck session law that was based on dubious constitutional and legal grounds, and sought to suspend the rule of law in Michigan, binding citizens and the state to the control of part of the Great Lakes for the next century,” said Olson. “The Snyder administration helped Enbridge run around our state constitution and evade the rule of law that protects the public’s ownership and rights in the Great Lakes.”

 

New year, new administration

After taking office on Jan. 1, Governor Whitmer’s first move was to direct Attorney General Nessel to examine the legality of the lame-duck tunnel deal. AG Nessel ruled in March that Act 359 violated Michigan law and openly violated the state constitution. Whitmer quickly ordered the executive branch to adhere to Nessel’s opinion, preventing the implementation by state agencies of the unlawful deal.

On June 6, Enbridge reacted by filing a lawsuit against the State in an attempt to resuscitate the lame-duck law and agreements, claiming easements and the right to continue using the existing Line 5 in the Straits indefinitely—or until it gets a 99-year tunnel and new pipeline to transport crude oil from Alberta and through Michigan into Ontario.

The Attorney General telegraphed her decision to stand with the Great Lakes. At the Mackinac Policy Conference in late May she told WWMT-TV in West Michigan, “I’m tired of it and we can’t have a private company be more important than the natural resources and residents of our state. They don’t own us, they don’t own the natural resources in this state and I think it’s time that we had elected leaders in office that recognize that.”

On the campaign trail in 2018, Nessel ran on a message to shut down Line 5.

“No state can cede the Great Lakes or soils under them to a person or private corporation,” said Olson. “These lakes and the soils under them are held in public trust for fishing, boating, drinking water, recreation, bathing, swimming for all citizens. This trust cannot be suspended by private agreements. The use of these trust waters and soils can only be authorized under law with transparent findings that there is no private deal or gain and no risk of impairment of current and future generations.”

 

Pure Michigan

Our freshwater seas are of paramount importance to Michiganders, and citizens throughout the Great Lakes basin. They uphold our economy and represent our very way of life. According to the Great Lakes Commission, Michigan has more than 3,000 miles of freshwater coastline and 11,000 inland lakes that provide residents, businesses, and visitors with access to nearly 20 percent of the world’s surface freshwater. More than 800,000 Michigan jobs and $62 billion in resulting annual wages are directly linked to the Great Lakes. 

An oil spill in the turbulent Straits of Mackinac between Lakes Michigan and Huron, where the currents create a washing machine effect, could jeopardize all that we are as Michiganders.

“This is a watershed moment in the battle to decommission Line 5, prevent a catastrophic oil spill, and protect the Great Lakes, an economic engine for our state and the source of drinking water for millions,” said FLOW executive director Liz Kirkwood. “Attorney General Nessel and Governor Whitmer made strong campaign promises to shut down Line 5, and now our elected leaders are making good on their commitment to protect the Great Lakes.” 

Reactions from local leaders — both in city hall and in the private sector — were strong.

“Shutting down Line 5 is a priority to those in northern Michigan who rely on the economic benefits of the natural resources we have in our Great Lakes,” said Traverse City Mayor Jim Carruthers. “Our Attorney General is right for supporting the immediate shut down of this aging Enbridge Pipeline under our Straits, to ward off the devastating effects of a breach that will destroy all that is important to life ‘up north’. As the mayor of Traverse City, I wholeheartedly support these actions to protect the waters around my city for all to enjoy and benefit from.”

Business owners like Brian Schwartz of eightyfive MILES, a lifestyle apparel and accessory brand company, reflected on the economic value and significance of the Great Lakes.

“I am the owner of a Great Lakes’ inspired start-up and former hedge manager, and I don’t see Enbridge’s enthusiasm or desire to fund a $500 million tunnel project,” he said. “We believe it’s a faulty plan and the time is now to shut down Line 5. We support Attorney General Dana Nessel in the State’s battle to shut down this aging pipeline. Our company contributes a share of revenues to support Great Lakes’ conservation and it would be an ecological disaster and economic catastrophe to Michigan if the pipe were to burst. There’s no need to put the State’s livelihood and environment at risk.”

 

Deception campaign

“Despite the posturing and rhetoric of Enbridge’s media scheme, there are alternatives to the existing Line 5 that do not require a tunnel,” said Olson. “These include delivering propane for those pockets of customers in the Upper Peninsula, and the use of excess capacity in other Enbridge lines that run across southern Michigan and northern Indiana to Canada and Detroit. We don’t need a 99-year tunnel and pipeline in light of plummeting demand for crude oil as the world economy rapidly shifts to renewable energy.”

“The Enbridge lawsuit is a diversion from the reality that the 540,000 barrels of oil are pulsating through a 66-year old pipeline, which is peppered with design flaws, gouges, corrosion, and unavoidably threatened with another anchor strike at any time.”

Enbridge has failed to prove itself as a trustworthy and transparent partner. Time and time again, Enbridge has withheld information, attempting to hide Line 5’s design flaws, pipeline coating, cracks, gouges, corrosion, and the April 1, 2018 anchor strike that nearly caused a calamitous spill, anchor strikes, and more. Enbridge’s operational track record is dismal. Its Line 6B Kalamazoo River disaster in 2010, one of the largest inland oil spills in U.S. history, cost $1.3 billion in damages. Line 5 has suffered 33 known spills, leaking approximately 1.1 million gallons of oil into Michigan’s environment.

An increasingly desperate Enbridge is enlisting allies to engage in what can only be deemed a deceitful Chicken Little campaign. The Canadian company wildly alleges that “shutting down Line 5, even temporarily, would mean lost union jobs, refinery closures, gas price spikes and greater harm to the regional economy every year.” The campaign is designed to scare officials into giving the company what it wants — a 99-year lease to use the people’s waters and lakebed to transport refined dirty tar sands oil from western Canada primarily to Sarnia, Ontario.

Enbridge makes the absurd claim that the PBF refinery in Toledo, Ohio, would lose a thousand jobs if Line 5 is shut down. But that directly contradicts statements PBF says in its own investor filings, as well as reports from market analysts, emphasizing the refinery has several sources of supply and can adjust them depending on market conditions. PBF also claims that 40% of the jet fuel used at Detroit Metropolitan Airport comes from refined Line 5 petroleum. But PBF and the Marathon Detroit refineries appear to supply only about 9% of the jet fuel used at the airport each day. Alternative pipeline sources can more than make that up. Impacts of a Line 5 shutdown on Metro Airport jet fuel have never before been raised as an issue in the Line 5 debate or when Line 6B ruptured and closed in 2010. Its introduction at the 11th hour after more than five years of controversy over the fate of Line 5 is a transparent effort to alarm the public.

Enbridge has alternatives within its pipeline system to meet all of its and Michigan’s needs without using the Mackinac Straits and the Great Lakes. There are several good solutions to assure continued delivery of propane to rural areas in the Upper Peninsula. It may even save Enbridge and its shareholders from shouldering a future stranded asset, as the need for Alberta crude oil, including through Line 5, will plummet in the next decade with the rise of the new renewable energy economy backed by public demand.

Enbridge has a track record of misleading the public and governments about its performance, and its recent efforts are consistent with the company’s apparent philosophy of saying anything to keep Line 5 petroleum — and profits — flowing.

FLOW applauds Michigan’s top leaders — Gov. Whitmer and AG Nessel — for their leadership in defending the people’s rights and public waters of the Great Lakes.

Resetting Expectations: Government’s Role in Protecting Human Health and the Environment

Published on June 19th, 2019 by - Blog Posts, News, Reports & Media Releases

Report author Skip Pruss

Why Good Regulations are Good for our Great Lakes

This is the first of four reports by former FLOW board chair, and former director of the Michigan Department of Energy, Labor and Economic Growth, Skip Pruss that make the economic case for government’s role in protecting the environment. FLOW will unveil one report each month.

Click here to read the first report in the series.

 

How We Got Here: The Rise of Modern Environmental Protection

Fifty years ago—on June 22, 1969—industrial waste covering the surface of the Cuyahoga River in Cleveland, Ohio, burst into flames. The fire was so intense it badly damaged two railway bridges crossing the river.  It was not the first time the Cuyahoga had caught fire. Described by Time magazine as a river that “oozed rather than flowed,” the Cuyahoga had erupted in flames many times over decades, with the largest fire dating back to 1952. Yet it was the 1969 fire that ignited public concern and helped galvanize political action, culminating in the passage of the Clean Water Act in 1972.

The Cuyahoga emptied its industrial wastes into Lake Erie as did the Detroit, Sandusky, Raisin, and Maumee Rivers. Many other rivers delivered nutrient loadings of nitrogen and phosphorus from agricultural watersheds and municipal sewer systems. Untreated wastes and nutrients took their toll, and Lake Erie, an integral part of the largest freshwater system in the world, was declared dead.

The foundational laws and regulations in the modern era aimed at protecting public health and the environment were born in crises.

The last half century has witnessed sweeping changes in the public perception of government and its role in advancing the public interest and improving public welfare. Surveys today show public trust in government is in sharp decline and criticism of government has become a bipartisan social norm. To many, “government regulation” connotes undue interference with markets, competition, and the economy, yet, at the same time, surveys show overwhelming bipartisan support for the protection of air, water, public lands, and natural resources – an essential function of government.

To explain these contradictory outlooks, FLOW is publishing a series of four policy papers that trace the history of environmental regulation, illustrating how it protects individuals, families, and communities while fostering innovation and economic gains. FLOW advocates for greater application of the Public Trust Doctrine, a model for stewarding public resources, addressing the growing challenges of maintaining water quality and confronting the climate crisis, and at the same time, restoring public trust in government’s critical oversight role.

FLOW’s four policy papers—to be published once a month between late June and late September—will articulate the costs and benefits of environmental regulatory systems, explain how environmental regulations prevent harm, narrate how regulations protect people and support our economy, and cover market failures, subsidies, and negative externalities.

Report’s Key Facts

  • Surveys show overwhelming bipartisan support for the protection of our air, water, public lands, and natural resources. But the public lacks confidence in the effectiveness and competency of government to afford such protections.
  • “Deregulation” has become a meme that resonates to many as a desirable goal and a public good, but is rarely contextualized as undoing necessary, appropriate, and successful government interventions.
  • Absent from the public dialogue are informed discussions of the purpose and value of the protections afforded by regulations and the wide array of benefits that regulatory structures provide to the public.
  • Studies show that the quantifiable benefits of environmental regulations greatly exceed the costs imposed on business and the economy.
  • The Office of Management and Budget (OMB), under President Trump, has found that the benefits of major regulations have exceeded costs by hundreds of billions of dollars.
  • OMB also found that the benefits provided by EPA regulations are the most efficient in terms of providing the most benefits at the least cost.
  • Environmental protections afforded by federal law are under siege as the Trump administration aggressively pursues efforts to broadly roll back environmental regulations and expedite fossil fuel development, while expressing open contempt for climate concerns.
  • Government, according to the Michigan Supreme Court, has a “high, solemn and perpetual” fiduciary responsibility as trustee, under the doctrine, to protect and preserve the trust for future generations.
  • The accepted means of determining the economic impact of regulations—cost-benefit analysis—has been subverted under the Trump administration, producing an imbalanced accounting of costs over benefits.
  • The Public Trust Doctrine has the potential to apply as a compelling legal framework to protect the public interest in all commonly held natural resources—our air, our non-navigable waters, wetlands, forests, and public lands.

Executive Summary:

Using the Public Trust Doctrine to fight the war against government 

Environmental regulations are often assailed as unduly interfering with free markets, undermining competitiveness, and adding unnecessary costs to the production of goods and services. At the same time, public surveys and polling show strong and consistent support for efforts to protect natural resources and the environment.

While the public at large displays a strong consensus for measures that protect our air and water, the public has less appreciation for the full array of benefits government regulations provide and lacks confidence in the effectiveness and competency of government to afford such protections. 

The benefits of government regulation are measurable and are overwhelmingly favorable in the realm of environmental protection, where the quantifiable benefits of regulations greatly exceed the costs imposed on business and the economy.

The discontinuity between the need for regulatory interventions to protect human health and the environment and the distrust of government’s regulatory mandate is attributable, at least in part, to a strong line of critical commentary from conservative “think tanks” and right-of-center media animating suspicion and distrust in government’s effort to advance the public interest.

Environmental protections afforded by federal law are under siege as the Trump administration aggressively pursues efforts to broadly roll back environmental regulations and expedite fossil fuel development, while expressing open contempt for climate concerns. Meanwhile, former Governor Rick Snyder in late 2018 signed into law a bill that limits new regulations in Michigan to the weakened regulatory standards defined by federal law.

The field of government regulatory activities is vast. This paper provides a historical perspective on environmental regulations, illustrating the many ways government regulatory systems provide cost-effective interventions that protect human health and the environment. The effect of regulations can and should be measured and monetized as a means of ensuring sound government policies that minimize harm to the public and avoid imprudent and costly impacts.

Environmental regulations are intended to protect every citizen’s common interest in this wondrous natural resource heritage and to prevent further harm so that future generations can continue to enjoy and derive the same benefits we have today. We have charged government with this awesome responsibility and the corresponding “duty to protect” and safeguard our common natural resources is deeply embedded in Michigan’s jurisprudence.

The Public Trust Doctrine is the legal framework to protect shared natural resources also referred to as “the commons.” The Doctrine holds that the Great Lakes and their tributary waters, and by extension, all water-dependent natural resources, are held in trust for the benefit of the people. Government, according to the Michigan Supreme Court, has a “high, solemn and perpetual” fiduciary responsibility as trustee, under the doctrine, to protect and preserve the trust for future generations. In so doing, public trust in government can be enhanced as well.

Michigan lies at the heart of the Great Lakes—the most magnificent freshwater system on the planet.  The good news is that there exists a broad public consensus to protect this extraordinary natural resource endowment, as well as the availability of a long-standing set of legal principles that, if better appreciated and activated, can empower our citizens and leaders to hold government accountable for protecting our commonly held natural resource heritage.

The paper offers the long-recognized Public Trust Doctrine as a legal framework to address the challenges of protecting and enhancing our natural resources and combatting climate change while rebuilding public confidence in the role of government.

Walking the Water Line — a Legal Right, But Difficult as Great Lakes Levels Rise

Published on June 3rd, 2019 by - Blog Posts, News

Pack away those dreams of walking miles from bay to bay along the shores of Lake Michigan this summer—unless you want to get wet, that is—reports Linda Dewey for the Glen Arbor Sun.

The U.S. Supreme Court reaffirmed the public’s right to walk the Great Lakes shoreline in February when it declined to hear an Indiana case filed by riparian landowners who live along the south shore of Lake Michigan. But with near-record breaking high water levels this spring, the reality isn’t so simple.

“Public spaces, infrastructure, and Great Lakes beaches are underwater,” says FLOW founder and president Jim Olson. “We see the effects of rising Great Lake water levels everywhere, from Chicago’s treasured waterfront, to Sleeping Bear Dunes National Lakeshore, to Clinch Park here in Traverse City.”

“The question becomes: What does this mean, and what might citizens do about it?”

Legally, the Public Trust Doctrine protects the rights of citizens to walk along the beach or shore in the area below the Natural or Ordinary High Water Mark (OHWM) along the Great Lakes, along with the rights of fishing, boating, and swimming, explains Olson. But what happens when the water rises above the Natural High Water level or mark?

The Public Trust Doctrine assures walking the beach along the shore above the Natural High Water Mark as long as people walk within the so-called “swosh” or wet zone. This is why the doctrine relies on the definition of “natural”—the beach defined by wave action and other natural forces. Generally, this means that if you stay within the wet, compacted sand or stones you are safe and not trespassing on the property of riparian landowners.

So when the water is high, that means that walking the Great Lakes shoreline along private property is allowed. Plopping down with your beach towels, cooler, or firewood is not.

Climate Change Infringes on Public Trust

“The public is also right to wonder: what happens when the water rises to the toe or up a bluff, completely shutting off public access along the shore?” Olson said.

Legally, the Public Trust Doctrine prohibits any interference or impairment of the public’s right to access and walk along the shore. Members of the public can insist, by court action if necessary, that the interference or impairment must be prevented or minimized by those who are responsible.

In the case of the current extremely high water levels, the most recent United Nations International Panel on Climate Change pins the cause of  unprecedented high water levels in the Great Lakes on the effects on climate, evaporation, precipitation caused by greenhouse gases.

So, legally, citizens have a right to demand—through lawsuits if necessary—that government and industries causing higher and higher levels of global warming reduce their greenhouse gases. Why? Because their action or inaction is impairing one of the public’s valuable protected rights—access to walk along the shore–in violation of the Public Trust Doctrine.

Danger at Sleeping Bear Dunes

The Glen Arbor Sun reports that with the “Ordinary High Water Mark” on Sleeping Bear Bay currently under water and cliffs marking the Natural High Water Mark, the question of where one can walk the beach becomes more than a question of trespassing or the Public Trust. Now the issue is safety.

That has prompted staff at Sleeping Bear Dunes National Lakeshore, in northwest lower Michigan to discourage the public from running down popular water-facing dunes or cliffs like the overlook from Pierce Stocking Scenic Drive.

The issue is serious—and potentially dangerous. National Lakeshore Deputy Superintendent Tom Ulrich said that Lakeshore staff recently had a meeting to figure out how to help climbers stuck on the dune below the Pierce Stocking overlook. They used to help those not in need of immediate life support walk back down to the shoreline and then south to North Bar Lake (sometimes with the help of their ATV, if needed).

“No more!” Ulrich said. “That route is impossible now. You cannot walk to North Bar Lake.” The only alternative is calling a boat out of Leland, which will take an additional 30-60 minutes to arrive.

“That’s why, this year, we’re going to try to let people know this is a really bad choice … to descend that slope, because our rescue is so limited.”

The problem exists up and down the Lake Michigan shoreline. One beach at the Indiana Dunes National Park is temporarily closed because wave action has created a cliff-enclosed beach. Walkers are also warned not to walk out on piers when waves break over them for fear they will be washed away.

On May 20, ABC Channel 57 in Indiana reported that last year was the deadliest ever for Lake Michigan with 42 deaths. This year has already seen seven fatalities, according to the Great Lakes Surf Rescue Project.

The Public Trust Doctrine and the Implications of the Walker Lake Litigation

Published on June 19th, 2018 by - Blog Posts, Public Trust Tuesday

byzantine-empire-public-land.-trusts

FLOW’s organizing principle is the public trust doctrine.  What sounds like an exotic concept is quite simple.  This centuries-old principle of common law holds that there are some resources, like water and submerged lands, that by their nature cannot be privately owned.  Rather, this commons – including the Great Lakes — belongs to the public.  And governments, like the State of Michigan, have a responsibility to protect public uses of these resources.  We explicitly address public trust concerns on what we’re calling Public Trust Tuesday.

An upcoming decision by the Supreme Court of Nevada may have major implications on the public trust doctrine’s ability to protect the public’s water resources.

The Walker River Basin is over 4,000 square miles and stretches from the Sierra Nevada Mountains to its terminus, Walker Lake.[1] Walker Lake is located in Mineral County, Nevada and is roughly thirteen miles long and over five miles wide.[2] The lake is primarily fed by the Walker River, which flows sixty-two miles from California to its mouth on Walker Lake. Unfortunately, Walker Lake has seen a massive decrease in water levels since the state of Nevada started allocating water rights from the Walker River to farmers and ranchers upstream. These water diversions have been so impactful that they have caused the Walker River to run dry before reaching the lake for an almost continuous ten-year period.[3] Reminiscent of Russia’s massive draining of the Aral Sea, since irrigation began on the Walker River, the lake has lost approximately 171 vertical feet of water and is now one third the size it once was.[4]

Not surprisingly, the dramatic decrease in water levels to Walker Lake has also led to significant water quality issues. The lake’s impaired water quality threatens native fish species as well as several bird species that use the lake as a resting stop along their migratory journeys.[5] The diminished water quality of the lake has also affected recreation activities such as boating, swimming, and of course fishing. To help restore Walker Lake, Mineral County has intervened in on-going litigation to challenge previous allocated water rights of farmers and ranchers from the Walker River.

This litigation revolves around a prior appropriation battle that has been on-going since 1924. A previous 1909 court case created the “Rickey decree,” which allocated water rights from the Walker River to over 150 different users.[6] In 1924, the Walker River Paiute Tribe and the United States sued the Walker River Irrigation District (“WRID”) to win recognition of the Tribe’s right to additional water rights from the Walker River.[7] Mineral County has now intervened to win recognition of the rights of its citizens under a legal theory known as the public trust doctrine.  

The public trust doctrine is a common law doctrine that dates back to Roman law. The public trust doctrine provides that sovereign states hold “all of [their] navigable waterways and the lands lying beneath them ‘as trustee of a public trust for the benefit of the people.’ ”[8] This principle has been affirmed by the Supreme Court of the United States for over a century, and has been applied not only to navigable waters, but also to tributaries and ground water aquifers that feed navigable waters.[9]

Even though the public trust doctrine has been firmly established in the United States, how the public trust doctrine interacts with the Western United States prior appropriation system of water rights is still being navigated. Under the prior appropriation system, which is commonly found in the arid Western United States, water rights are generally allocated based on a “first come, first serve” system. In neighboring California which also recognizes prior appropriation and riparian law, the Supreme Court of California held in the seminal 1983 Mono Lake case that the public trust doctrine creates an affirmative duty for the state to take the public trust into account when planning or allocating water resources, and to protect public trust uses (such as swimming, boating, and fishing) whenever feasible.”[10] The Supreme Court of California further went on to hold that the prior allocated water rights out of Mono Lake are still subject to the public trust doctrine, and as such must comply with the public trust duties of the state.

The question of how the public trust interacts with previously appropriated water rights is still unanswered by the courts in Nevada. Nonetheless, the public trust in water resources is generally recognized as paramount to private use of water. A linchpin of the Supreme Court of California’s decision to protect Mono Lake from excessive upstream water diversions was the irrevocable nature of the public trust doctrine and the duties of the state as trustee of Mono Lake. The discovered harm to public trust waters and dependent water resources and uses substantiated the Court’s authority to limit previously appropriated water rights to protect the public trust. Mineral County’s challenge to previously allocated water rights from the Walker River is therefore dependent whether the Supreme Court of Nevada’s will follow the Supreme Court of California and rule that the public trust doctrine is paramount to prior allocated water rights in Nevada. 

If the Supreme Court of Nevada does indeed follow its neighbor to the west, the state of Nevada must fulfill a duty to continually supervise the taking and use of appropriated water rights. Nevada would not be confined to prior allocated water rights, but rather would evaluate these previously allocated water rights to ensure that such rights do not negatively affect the public’s interest in the water resources of Nevada. It is a hard task to balance the needs of farmers and ranchers with the public’s interest in restoring Walker Lake. However, Nevada must resolve this complex question of how to best manage these perpetual competing interests in its freshwater resources for future water security.

To ensure the long-term sustainability and future of Nevada’s finite fresh water resources, the Supreme Court of Nevada should conclude that the state has an affirmative duty to consider the impacts on public trust resources for both future allocations and maintenance of previously allocated water rights. This conclusion would allow Nevada to restore Walker Lake and more importantly guarantee that the state could effectively manage other public trust resources, so that all citizens of Nevada may always enjoy them. Additionally, a decision from the Supreme Court of Nevada that establishes the public trust doctrine as paramount over prior allocated water rights would likely affect how other courts view future challenges to the public trust doctrine across the West and throughout the United States.

In conclusion, even though the litigation surrounding the devastated Walker Lake is binding only in the state of Nevada, the decisions made in this case surrounding the public trust doctrine have the potential to ripple across the nation. The public trust doctrine allows citizens to hold governments accountable for their decisions concerning our public resources. It is a paramount right that is inalienable and perpetual in nature. The Supreme Court of Nevada must now come to a just conclusion and strengthen our ability as citizens to protect the water and natural resource we so deeply depend on and care about.

[1] United States v. Walker River Irrigation District, No. 3:73-cv-00128-RCJ-WGC, 2015 WL 3439122, *1-10, *1 (9th Cir. May 28, 2015).

[2] Id.

[3] Id.

[4] Walker Lake Crusaders,  http://www.walkerlakecrusaders.com/ (last visited Jun. 11, 2018)

[5] Staci Emm and Kellie Zuniga, Walker Lake: A snapshot of Water Flow and Water Quality, (2008), https://www.unce.unr.edu/publications/files/nr/2008/fs0808.pdf

[6] Daniel Rothberg, 9th Circuit Ruling on Walker Lake Puts Far-Reaching Water Rights Issue Before Nevada Supreme Court, The Nevada Independent (May 27, 2018).

[7] United States v. Walker River Irrigation District, No. 15-16478, 2018 WL 2306279, at *1-10, 1 (9th Cir. May 22, 2018)

[8]  National Audubon Society v. The Superior Court of Alpine County, 658 P.2d 709, 718 (Cal. 1983)(quoting Colberg, Inc v. Sate of California ex rel. Dept. Pub Works, 432 P.2d 3 (Cal. 1967))

[9] James Olson, All Aboard: Navigating the Course for Universal Adoption of the Public Trust Doctrine, 15 Vt. J. Envtl. L. 361, 401 (2014).

[10] National Audubon Society v. The Superior Court of Alpine County, 658 P.2d at 712.