As we approach the new year, many of us take inventory. We take a look at the goals we have set for ourselves, set new ones – or the same ones again – and we head into 2018 with a fresh perspective. I will have a physique like Arnold Schwarzenegger by this time next year. I will find the cure for cancer and world poverty by March, and donate the proceeds to FLOW. And so on.
I can see some of you shaking your head, doubting my abilities. But the main reason I could not accomplish these goals is that I do not have the resources to do so. While having an Olympic gym and personal trainer would be nice, I do not have the means to train that way with my current lifestyle. I also do not have the time or the means to unlock the secret link between cancer and poverty, or to change them.
Instead, some of my main goals will be focused on the Great Lakes, and the water in the Great Lakes Basin. One is to shut down the Line 5 pipeline in the Straits of Mackinac, removing the oil and associated risk of harm from the water. Another is to educate others about bottled water and reverse the trend of valuing convenience over the health of the Great Lakes and the human right to water. To create a world without disposable bottles full of water and without water full of disposable bottles.
These goals are not less daunting than my original goals. These are still enormous goals. The enormous difference is that I have the resources to help me accomplish these goals. Most of those resources are the people I interact with regularly at FLOW, as well as our supporters and partner organizations.
Nayt Boyt
I have been at FLOW just over a year, and even now, these people impress me so much with their abilities and dedication to the Great Lakes. Each individual is like one of the lakes, expansive and awe-inspiring, and I feel genuine gratitude to be able to work with them. It is the same gratitude I have for our Great Lakes.
As we head into the new year, I look forward to the resources I have around me – the globally unique resources in our backyard, and the ones who help protect them.
In a season of gift-giving, it’s timely to remember that the people of the Great Lakes Basin inherited the greatest freshwater gift in the world.
We are slightly more than half a percent of the population of the world, but live among 20% of the surface freshwater of the world. That’s a great asset – and an outsize responsibility.
There is nothing like them, as authors and poets attest:
In The Living Great Lakes: Searching for the Heart of the Inland Seas, author Jerry Dennis wrote, “To appreciate the magnitude of the Great Lakes you must get close to them. Launch a boat on their waters or hike their beaches or climb the dunes, bluffs, and rocky promontories that surround them and you will see, as people have seen since the age of glaciers, that these lakes are pretty damned big. It’s no wonder they’re sometimes upgraded to ‘Inland Seas’ and ‘Sweetwater Seas.’ Calling them lakes is like calling the Rockies hills.”
In Moby Dick, author Herman Melville wrote, “For in their interflowing aggregate, those grand freshwater seas of ours–Erie, and Ontario, and Huron, and Superior, and Michigan–possess an ocean-like expansiveness, with many of the ocean’s noblest traits.”
Poet Alison Swan said, “To know Superior, Michigan, Huron, Erie, and Ontario, one must visit them in all kinds of weather, at all times of year, and at all times of day, and even then they turn up surprises.”
Writing about what it means to be a Middle Westerner, author Kurt Vonnegut observed, “But the more I pondered the people of Chicago, the more aware I became of an enormous presence there. It was almost like music, music unheard in New York or Boston or San Francisco or New Orleans. It was Lake Michigan, an ocean of pure water, the most precious substance in all this world…Get this: When we were born, there had to have been incredible quantities of fresh water all around us, in lakes and streams and rivers and raindrops and snowdrift, and no undrinkable salt water anywhere!”
Dave Dempsey, Senior Advisor
But the Great Lakes are not limitless. Frank Ettawageshik, Executive Director of the United Tribes of Michigan, once said, “One hundred and fifty years ago we had a resource in the Great Lakes region that was considered inexhaustible. It lasted barely two generations. This was the White Pine forest. The White Pine of this century is Water.”
In a time of runaway population growth, accelerating climate change and growing global demand for fresh water, we cannot take our endowment for granted. We have indeed received a precious gift. It is our job to care for it.
My children and I recently celebrated the season by watching a wonderful Nutcracker ballet production at the Interlochen Arts Academy. Reading the back of the playbill, I was amazed to learn that this extraordinary music and ballet – now an American classic – was conceived one hundred and twenty-five years ago in the winter of 1892. The premiere of the Nutcracker Ballet performed in St. Petersburg, Russia, however, was not an instant success.
In fact, it was not until the late 1960s that the Nutcracker was embraced as a beloved American classic performed by countless ballet companies, primarily during the Christmas season. The melodies of Tchaikovsky resonated so deeply in me, drawing me into Clara’s enchanted world. And I remember thinking how few things are as powerful and evocative as music.
So what does Tchaikovsky’s ballet have to do with public trust law in America? Good question. It may seem like an odd connection but it’s not, because 125 years ago marks the seminal Supreme Court decision – Illinois Central Railroad v. Illinois – that established U.S. states as trustees over public trust waters and bottomlands for the benefit of citizens in perpetuity. One hundred and twenty-five years ago, the public trust doctrine became the law of the land. After nearly thirty years of controversy, the Supreme Court affirmatively nullified the deed the Illinois legislature had granted the Illinois Central Railroad. As a result, the public gained back a quarter-square mile of the downtown waterfront of Chicago and understood that they could hold their state governments accountable for protecting the paramount interests of the public waters.
The importance of this legal decision cannot be underscored. If the Supreme Court had not ruled in favor of the public and asserted the inalienable nature of public trust waters and bottomlands, Chicago’s downtown waterfront would have been privately owned, and there would be no Millennium Park.
Liz Kirkwood, Executive Director
One hundred and twenty-five years is a long time. And yet, I reflect on how timeless and powerful Tchaikovsky’s music and ballet remains. What if the public’s understanding of public trust law had been similarly embraced? What if states like Michigan upheld their public trust duties and enforced easements in public trust waters to prevent a private oil company from threatening our public waters? What if more citizens knew that their state leaders – governors, attorney generals, and agencies – were required by law to protect the paramount interests of navigable waters and tributaries? And what if more citizens demanded public trust protections of our greatest natural resource – water? Just imagine how powerful a stewardship tool we would have today. Let’s remember the gift the Supreme Court gave us 125 years ago and bring it back to life for the sake of the Lakes and our children’s future.
As a native Michigander and optimist, I’ve always welcomed the first day of winter as a harbinger of longer, hopefully sunnier days just over the horizon. But I was recently reminded by a friend that, of course, the winter solstice that occurred Thursday at 11:28 a.m. Eastern Standard Time, actually marks the shortest day and longest night in the Northern Hemisphere.
So depending on the tilt of your perspective, the solstice is cause for deepening dread, a condition aptly summed up as “SAD,” or relative hope: There’s scientific evidence to suggest that without the tilt of the earth’s axis, we might not be here at all.
As we at FLOW take stock of our shared efforts in 2017 to prioritize and protect the Great Lakes and look ahead to challenges and opportunities to come in the new year, consider this dichotomy related to the battle to shut down the decaying Line 5 oil pipelines in the Mackinac Straits that suggest from my viewpoint that Great Lakes protectors are growing stronger and there indeed are brighter days ahead.
First the Dark: In October, Enbridge admitted misleading both Michigan and federal officials on the condition of its Line 5 oil pipelines for over three years, concealing the existence of at least 48 bare metal spots and/or coating gaps near anchor locations in the straits.
Then in late November, Michigan Governor Rick Snyder bypassed his own advisory board and announced his sweetheart, backroom deal with Enbridge to tilt the search for alternatives to a looming Great Lakes oil spill disaster toward a tunnel under the Mackinac Straits. Gov. Snyder, however, inadvertently lit a spark under those who recognize that the drinking water supply for half of all Michiganders is no place for oil pipelines.
Then the Firelight: FLOW Executive Director Liz Kirkwood correctly called it a “reward for failure” for bumbling Enbridge. The governor’s spurned advisory board found its voice in early December and passed resolutions, in part, calling for an amendment to the deal to require the temporary shutdown of Line 5 until there has been the full inspection of and repair of the coating breaches and urging the state to conduct a much more robust assessment of alternatives to Line 5.
Apparently preferring a rubber-stamp board, Gov. Snyder was quick to dismiss his advisors, saying, “I’m not sure I view that as a regular meeting in terms of that resolution.” But the public was buoyed by the board’s backbone, with hundreds of outraged residents turning out and piping up in public meetings in Taylor, St. Ignace, and Traverse City to object to the governor’s deal and support a shutdown.
More Illumination in 2018: Stay tuned in early 2018 when the campaign will release its detailed plan to decommission Line 5 while ensuring propane still flows to the Upper Peninsula and Michigan’s other energy needs are met. FLOW’s technical advisors have done some of that decommissioning groundwork, as summarized in fact sheets here and here.
Shining Brighter Together: For FLOW, the broader context is that the Great Lakes belong to all of us, so all of us who love and benefit from these magnificent waters must share in the vital task of helping protect them.
That’s why we work so hard to educate the public and ensure these freshwater inland seas remain and become even more drinkable, fishable, and swimmable for generations to come. Together we must understand the risks facing our Great Lakes and very way of life so that we can pursue real solutions rooted in the public trust. And one very real solution is for the state of Michigan to shut down Line 5.
Almost everyone agrees: the old state fish hatchery on the Au Sable River in Grayling is the worst place you could pick for a commercial fish farming operation. It is on the East Branch, just upstream from the famed Holy Waters, the heart of Michigan’s blue ribbon trout fishing industry, and the premier wild trout fishing destination east of the Mississippi. But due to a combination of factors, including politics, greed and governmental lawlessness at the state and local level, that’s exactly what is happening.
The state deeded the hatchery to Crawford County subject to a statute passed by the legislature and a deed which limited use of the property to public recreation and museum purposes, and which required the county to preserve the public’s right of ingress and egress for fishing. But in 2012, the Director of the Department of Natural Resources signed away the state’s right to enforce those restrictions. Crawford County leased the hatchery to the fish farm for 20 years for $1. The river is fenced off. In October of this year, a judge ruled that operation of the fish farm “clearly violates the statute and deed,” but the DNR has been sluggish at best in rectifying the situation.
The fish farm will pollute the river, so it needs a Clean Water Act pollution discharge permit, which was willingly granted by the Department of Environmental Quality with the urging of the Department of Agriculture and the Farm Bureau. It was justified on the basis that the operator would profit, 2-3 jobs would be created, and the hatchery would stay open as a tourist attraction in the summer (which could have been accomplished without degrading the river with a fish farm). Damage to the multi-million dollar sport fishing industry in the area, and the jobs it supports, was not even considered.
Photo credit: John Russell
At permit limits, the fish farm will discharge about 160,000 pounds of solids (fish feces and uneaten feed) and over 1,600 pounds of phosphorous into the river every year. It currently has no water treatment system, and none is planned, other than a low-tech “system” of “quiescent zones” which might be implemented at an unknown time in the future. The pollution will cause algae to grow, and the solids will create sludge beds. These will harm aquatic insects which the fish eat, reduce dissolved oxygen which they need to breathe, and increase the risk of Whirling Disease, which can decimate a fishery if it reaches epidemic levels. Escaping fish could breed and dilute the wild trout gene pool. Technology exists to remedy the problem, but the operator says it is too expensive.
All of this violated the property transfer statute, the deed, state and federal clean water laws, the non-degradation rule, and regulatory standards for phosphorous and dissolved oxygen in cold-water streams. And it violates the public trust right of the people to have access to the river for fishing and other recreational pursuits. It appropriates public trust waters for private gain.
The case is in litigation. Attorney, experts and other costs have exceeded $400,000 so far, with a long way to go.
The state’s approval of this operation shows either a lack of understanding of its public trust responsibilities – or a willful disregard of them. It will once again be up to citizens to do what their state government is supposed to do – assure there is no impairment of public waters for private benefit.
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Tom Baird is a board member of FLOW and the past President of the Anglers of the Au Sable.
Good evening, and thank you for the opportunity to comment on what is unfortunately
a deeply flawed final Line 5 alternatives study. The people of Michigan are ill-served
by this study. It cannot serve as a basis for an informed and intelligent decision about
the fate of this profound threat to the Great Lakes.
Members of the Advisory Board who represent citizens, businesses, tribes, and
conservation agree that this final report is flawed and demanded this past Monday by
resolution a more robust and comprehensive study on existing pipeline infrastructure
and Michigan’s (not Enbridge’s) energy needs.
Here are only a few of our major concerns with this final report:
1: Assumes that the state must guarantee that Enbridge is able to deliver 23 million gallons of oil daily through Line 5. The legal agreement to occupy our
public waters is not a covenant to keep oil pipelines operating indefinitely and at full
capacity. This bias results in the tunnel option appearing as a favored report
alternative.
2: Dismisses the most credible alternative of existing pipeline infrastructure. As
documented in FLOW’s 2015 expert report, existing pipeline infrastructure, including
Enbridge’s newly doubled capacity in Line 6B, is a practical alternative for
Michigan’s energy needs. The report acknowledges that excess pipeline capacity
exists on Enbridge Line 6B (renamed 78) now and that the Mid-Valley Pipeline could
supply much of the remaining needs of the Detroit and Toledo refineries. (5-2; 4-18).
3: Operates from a bias in favoring a tunnel in the Straits of Mackinac. A tunnel
will not eliminate the risk to the public trust waters of the Great Lakes. Line 5
traverses 245 other water crossings, including ones that are tributaries of Lakes
Michigan, Superior, and Huron. A tunnel is no gift to Michiganders. It threatens
economic and ecological disruption to the region and contravenes Michigan’s policy
ban against directional drilling for oil and gas in the Great Lakes; And fundamentally,
why would Michigan want a Canadian company’s tunnel located under the planet’s
largest fresh system water systems and potentially usher in heavy tar sands transport
back to Canada? This makes no sense.
4: Continues to underestimates the economic damage of a Line 5 spill at a $100-200 million. This number defies logic in light of Enbridge’s 2010 $1.2 billion Kalamazoo disaster and the potential catastrophic harm for affected shoreline communities, tourism revenue, drinking water, fisheries, etc.
So where does this leave us? Though this report fails on many levels, it does substantiate the fact that Line 5 can be decommissioned with little disruption and minimal increased costs to Michigan consumers and businesses.
The report affirms that there are feasible and prudent alternatives readily available that both meet Michigan’s energy needs currently served by Line 5 and completely eliminate the risk to the Great Lakes.
The time for studies has ended. It is time for action as the PSAB Resolution affirmed on Monday. That action should start with shutting down Line 5 immediately and ultimately end with state’s revocation of the easement and the decommissioning of Line 5.
The Great Lakes are held in trust by the State of Michigan as public trustee for the benefit of its citizens. The 1953 easement with Enbridge was issued fully subject to the public trust- and the U.S. Supreme Court agrees. The public is the ultimate decision-maker.
Governor Snyder tried to circumvent them through private agreement with Enbridge. Michigan citizens deserve better.
FLOW has contacted key Michigan lawmakers to ask them to defend the public's Great Lakes waters and submerged lands from intrusion.
Legislation before the House Committee on Natural Resources exceeds the Legislature's powers and puts publicly owned waters and submerged lands at risk. S.B. 409 allows private riparian landowners to occupy Great Lakes submerged lands (which belong to the public) and construct private noncommercial harbors adjacent to their upland riparian property.
FLOW said this sets a terrible precedent that could lead to other private interests seeking to make private ownership claims on the Great Lakes and their submerged lands. In an 1892 decision, the U.S. Supreme Court ruled that states cannot cede these submerged lands and waters to private parties because the title to them is "held in trust for the people of the state, that they may enjoy the navigation of waters, carry on commerce over them, and have liberty of fishing therein free from the obstruction or interference of private parties.”
S.B. 409 runs afoul of Supreme Court precedent and sound stewardship of our waters, and should be rejected.
The City of Flint, through its city council, just approved a deal to return to and stay on Detroit water, now managed and sold by the suburban Great Lakes Water Authority (GLWA). This decision must be viewed as the next step, not the final outcome. Even though the city and residents will get the benefit of federal dollars, they lost their autonomy in this process and were under the coercion of a court order and the “carrot” of essential federal funding.
But the city will be hit twice with water bills. Flint not only will buy water from the GLWA (formerly Detroit Board), but is also required to fulfill its $340 million obligation to the new KWA authority in Genesee County.
Flint bought water from what is now the GLWA for decades before the fast, hurried switch to Flint River water for short-term gain poisoned and endangered Flint residents, and the state and federal EPA dragged their feet to recognize or do anything about it for what looks like more than a year. Led by an emergency manager appointed by the governor, the city was under pressure to get off of Detroit water back in 2014, and to pick up and connect to the KWA for Flint water as soon as a massive pipeline from Lake Huron was completed.
Under the court order and Flint’s council vote approving purchase contract for GLWA (Detroit water), the residents of Flint now have to pay rates that pay for the $340 million obligation to KWA and for water from the GLWA! They can’t afford one obligation, let alone pay twice, but that’s basically what has happened. And what about their health, independent and continuous testing, monitoring, lead line replacement and abatement, medical services, and reparations to what residents suffered? This must be part of federal aid, but it is also the responsibility of the State and all of those who are responsible for this tragic fiasco of narrow self-interests gone awry.
But this doesn’t do it either. We have a huge disparity, inequity, and lack of public oversight and protection of water and health when it comes to Michigan’s water and Great Lakes and our water services to residents. It is time for Michigan to establish a comprehensive “Public Water, Public Infrastructure and Water Justice Act” for all our cities and rural communities and residents. This is what Christmas and Thanksgiving and New Year should be about.
Let’s remove the Grinch-like selfishness we have seen from government leaders over the past four years from our public water. It all comes from the single hydrological system of water in the Great Lakes basin. This water is held in public trust, that is the government, and everyone has a stewardship obligation to assure integrity of water and health for all of the people of Michigan, especially those least able to afford it.
What rights does the public have to access the shore? By deciding not to hear an appeal brought by a right-wing foundation on behalf of a coastal property owner, the U.S. Supreme Court has provided an answer, for now.
The Court of Appeals decision whose challenge the Supreme Court refused to hear upheld a local ordinance in North Carolina. The ordinance restricts a beach landowner’s rights to leave or place fixtures or equipment which have the effect of excluding the public along the public access/public trust beach area, below the ordinary mean high-water mark on the beach. Pacific Legal Foundation took up the landowner’s claim that the ordinance constituted a taking of their use of riparian beachfront.
The Court of Appeals noted that custom and law in North Carolina is that ocean beaches below vegetation and other evidence of the high mean water mark are open to the public under the public trust doctrine, and that public access needs to be kept open, especially for emergency vehicles that are necessary for the safety of the public’s use and enjoyment.
Pacific Legal petitioned the Supreme Court to hear an appeal. The Court’s rejection of the request signals that public trust and riparian landowner fights involve the property and public trust law of the states, and that a local ordinance protecting the public’s use of the foreshore of ocean beach within the public trust foreshow does not interfere with or take any property rights of those owning riparian land above the ordinary mean high-water mark.
So, now those of us in the Great Lakes region will wait for the Indiana Supreme Court to decide the fate of long-standing public trust uses below the ordinary high-water mark of Lake Michigan along Indiana’s nearly 50 miles of shoreline. Last week waterfront lot owners in the town of Long Beach, Indiana argued their claim to control and ownership down to the water’s edge in oral arguments to the Indiana Supreme Court. They claim a more than 100-year-old deed to the “low water mark” gives them the right to block public access and walking up and down the foreshore of Lake Michigan.
The attorney representing the residents of Long Beach who have used the beach almost as long argued that the original owner could not deed what he didn’t have. The attorney also argued that the riparian title to land ends at the ordinary high-water mark, and the riparian right to use the land below that goes to the water’s edge or low water mark, but is subject to the state’s and citizens’ access rights under the public trust below the ordinary high-water mark.
The Indiana Attorney General made similar arguments on behalf of the state DNR and public, and Jeff Hyman, the executive director of the Conservation Law Clinic at the University of Indiana Law School, argued that the state received when it joined the U.S., like all states, sovereign title to the waters and land of the Great Lakes below the ordinary high-water mark. All that waterfront lot owners have is a right to use, not own, and that right has always been subordinate to the rights of the state and the public in these sovereign lands under the public trust doctrine.
One can only hope the Indiana Supreme Court sees that centuries of law and tradition protect the public’s right to access the shore.
An important court case in Wisconsin will offer one answer to that question – – and it could have important implications for public access and open space in the redevelopment of Michigan’s and Great Lakes’ shorelines.
The case, which is on appeal from a trial court that sided with the public’s interests, involves a developer’s proposal to build a hotel on the shores of Sturgeon Bay, on land that was formerly submerged and belonging to the state and citizens before being unlawfully filled in during the last century.
Some community officials back the development as economic development that benefits the city. But a group of concerned citizens and public trust defenders, called Friends of Sturgeon Bay, has sued the city to block the developers’ attempt to lock up shoreline. They pose the question: why would rare public filled land be privately developed, when private land can be acquired for the development on adjacent private lands, and the open space can be preserved? Wisconsin citizens asked FLOW’s founder, Jim Olson, to file an amicus brief on their side. We posed questions to Jim about the case and why FLOW has chosen to get involved.
How did your brief come to be?
An attorney from Madison, Wisconsin, contacted me by phone in early June to ask me if I would be willing to write an amicus brief for FLOW to submit to the Court of Appeals in Wisconsin. Because of FLOW’s mission to protect citizens’ rights in our lands and waters protected by the 150-year-old public trust in the Great Lakes basin, she asked us to support the trial court decision blocking the City of Sturgeon Bay’s sale of historically filled bottomlands of Lake Michigan. It’s in the middle of the waterfront in Sturgeon Bay, Wisconsin, which is a popular tourist destination on the Door Peninsula.
What is the fundamental public trust issue at stake in the Sturgeon Bay litigation?
The fundamental issue for the citizens of Sturgeon Bay is the loss of a state-owned bottomlands parcel on the city’s waterfront. The city picked the parcel up from a foreclosure sale, packaged it with a redevelopment project, and entered into an agreement to sell it to a private developer. The rub? There is no legislative grant or disposition from the state to the city or any of the previous owners, as required by public trust common law.
Under the common law, states on behalf of citizens are the sovereign owner of the bottomlands and waters of the Great Lakes. Under this principle, state sovereign bottomlands cannot be transferred for purely private purposes. This is because there are certain commons like the Great Lakes that are not property. Government can’t sell off Great Lakes bottomlands for private gain, because it violates the limitations conferred by people on government under our state constitutions. Just because owners of adjacent private land fill up the Great Lakes over decades doesn’t change the constitutional and public trust limitation.
The City claims it had been filled for so long when it acquired the property, it took the title of the previous owner who the city claims acquired title by adverse possession (known colloquially as “squatter’s rights”) as the result of a fill and use that went on for more than 50 years. Under public trust law, filled or unfilled bottomlands below the Ordinary High Water Mark of the Great Lakes cannot be conveyed by the state or anyone for a private purpose or development. All a state can convey is occupancy to use, subject to reservation of state title, public trust and control, and revocation in the future. Private “squatters” can’t claim ownership over public trust bottomlands that the state can’t convey in the first place.
The fundamental legal question is whether a private person or the city can acquire filled bottomlands based on the legal doctrine of adverse possession. Can someone squat, in this case fill, state sovereign land for several decades, and claim ownership while no one was looking? This is the question I was asked to brief under public trust law, because if the state can’t convey public trust bottomlands, filled or otherwise, to a private or even public corporation, how can a title be acquired by adverse possession?
The answer is: “it can’t.” A landowner might drive over his neighbor’s side yard to get to the back forty for several decades in full view while the neighbor sits on his or her hands, and claim adverse possession, because state laws authorizes a court to grant relief as a result of the open trespass and inaction on the part of the neighbor. In effect, the legislature has declared that the neighbor has consented to a conveyance of the driveway because of the inaction. But when it comes to state public trust bottomlands of the Great Lakes, it can’t be done. Why? Because if the legislature doesn’t have the power to convey these public trust lands outright, it can’t pass a law that would authorize someone to own public trust land by walking through the back-door over a period of years.
What are the implications outside of Sturgeon Bay – in Michigan, for example?
The question is critical for citizens in states with hundreds of towns and cities, like Sturgeon Bay, on lakeshores and harbors of the Great Lakes. There are around 175 such communities in Michigan alone. If historically filled bottomlands can be taken by adverse possession, hundreds if not thousands of parcels owned by the states for the benefit of citizens could be up for grabs, at a time when public access, recreation, boating, navigation, open space, are more critical than ever for communities recovering from the taint of the rust-belt era. This is an opportunity for rust-belt communities to embrace their best public asset and become water-belt communities.
Why does it merit FLOW’s participation?
FLOW must participate to make sure the public trust doctrine is not distorted to justify loss of state public trust bottomlands to private control and ownership. One of our areas of concern has been to help cities and towns on the Great Lakes preserve public access, open space, and recreation and parkland along their waterfronts. With our expertise on public trust law, we determined that in most states, there is no adverse possession of public trust bottomlands, because it circumvents– end-runs –the rule that only a legislature can transfer within a very narrow range bottomlands to private or public entities, like a city, and it must be for a public trust use, like navigation, open space, recreation, boating, fishing; but the legislature has no power to convey its sovereign state title for purely private purpose development. We must make sure cities and developers don’t take public trust lands in which the whole people have a legal right of public access, use, and enjoyment by adverse possession.
I noticed in the brief you cite a recent Michigan court decision regarding Mackinac Island, a case in which you were involved. How does it relate to this case?
It’s directly relevant, because a private corporation bought a commercial docking operation, partly on top of historical fill dating back into the 1800s, and claimed it owned the filled land and dock on state public trust bottomlands based on adverse possession. The Court of Appeals, sitting as court of claims, granted summary disposition to the state, and tossed the private corporation’s claim out of court. The Court in effect declared, “These filled bottomlands cannot be owned privately by any one, because they rightly still belong to the state as trustees for the benefit of current and future generations.” States and citizens must vigilantly maintain and protect these public sovereign trust lands and waters, because they support the values important to all, including long-term quality of life and economic prosperity. There is a private market for private property, and that is for private development, not the Great Lakes.
understanding of its public trust responsibilities – or a willful disregard of them. It will once again be up to citizens to do what their state government is supposed to do – assure there is no impairment of public waters for private benefit.
