Tag: Public Trust

The Public Trust Doctrine in Action

Published on January 30th, 2018 by - Public Trust Tuesday

byzantine-empire-public-land.-trusts

Editor’s note: 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. Today’s thoughts are from FLOW’s board chair, Skip Pruss.

“We must connect the dots between climate change, water scarcity, energy shortages, global health, food security and women’s empowerment. Solutions to one problem must be solutions for all.”   — Ban Ki-moon, Secretary-General of the United Nations, 2011 Address

It’s time that we better manage our natural resources by broadly applying the Public Trust Doctrine.

Our water, air, and other public resources are facing multiple threats and unprecedented challenges. The threats to our environment are complex and systemic, and current government efforts are inadequate and ineffective.  The public trust doctrine provides government with a framework to identify, comprehend, and address environmental threats at their root cause.

Last week at World Economic Forum (WEF) in Davos, Switzerland, political and business leaders, social activists, and philanthropy came together to assess the current state of the world and prioritize problems and solutions.

To inform the discussions of the attending global elite and set the agenda, a series of reports issued including Harnessing the Fourth Industrial Revolution for Life on Land and The Global Risk Report 2018.  The former indicates that a survey of earth systems science finds that stresses on the planet’s environmental systems have worsened considerably in the last 25 years.  The Global Risk Report – which has measured and categorized global risk annually for the last 13 years – found that environmental challenges from water scarcity, climate change, biodiversity loss, and pollution of air, soil and water now pose the greatest global dangers in terms of both potential catastrophic impacts and imminent threats.

The WEF warns that governments thus far are ill-equipped to respond to complex interactions and systemic threats that can quickly cascade into calamitous and costly events.

In the Great Lakes Region, the WEF’s warnings are validated by new emerging science:

A broader approach to address these growing systemic threats is needed; one that focuses on the public interest and on protecting human health and the environment as a fundamental guiding principle.

The public trust doctrine starts with the proposition that the natural resources on which we all depend – our water, air, forests and wildlife – are essential to our wellbeing and must be protected from impairment and degradation.

Our nation’s highest courts have long embraced the public trust doctrine as an overarching legal principle.  In a landmark case involving Lake Michigan, the United States Supreme Court spoke unequivocally to government’s fundamental duty to protect public trust resources:

“The State can no more abdicate its trust over property in which the whole people are interested like navigable waters and the soils beneath them…than it can abdicate its police powers in the administration of justice and the preservation of peace.”

The Michigan Supreme Court has found that the doctrine establishes a “high, solemn and perpetual duty” of proactive environmental stewardship.  The protections afforded by the public trust doctrine are recognized by Michigan’s Constitution, which states: “The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people.”  Wisconsin’s highest court has found that the public trust doctrine “requires the law-making body to act in all cases where action is necessary, not only to preserve the trust but to promote it,” and has applied the doctrine to protect public rights in sailing, rowing, canoeing, bathing, fishing, hunting, skating, and “scenic beauty.”  California’s highest court has found that the doctrine demands that the best science must inform government’s responsibility to protect public trust resources and that prior governmental decisions must even be reexamined in light of new scientific knowledge if such information indicates public trust interests are affected.

The Public Trust Doctrine at Work

Our nation’s courts have been clear and unambiguous, stating repeatedly that the public trust doctrine creates an affirmative legal duty to protect public resources from degradation and impairment.  So how might government apply the public trust doctrine to address complex and challenging environmental threats?

The doctrine operates as a shield to prevent activities that impair the public’s interest in public trust resources or conveys public rights in public trust resources to private parties.  But beyond that, the public trust doctrine also empowers local, state and national governments to proactively manage and supervise activities that threaten public resources.

It provides, for instance, government with legal authority to require septic systems to be inspected and repaired if they are failing.  If fish or aquatic resources are threatened by harmful wastes or chemicals, government is empowered to stop the pollution at its source.  When it was found in the 1980’s that the operation of the Ludington Pump Storage Facility killed large numbers of fish in Lake Michigan, the then attorney general asked the courts to require measures that abated the fish mortality.  The Michigan Court of Appeals stated, “Because the fish resources destroyed by the plant are held in trust by the state for the people, the state is empowered to bring a civil action to protect those resources.”

Similarly, Attorney General Bill Schuette could bring and action to close Line 5, the 65-year-old oil pipeline crossing the Straights of Mackinaw, because it presents a known catastrophic risk to public trust resources and waters of the Great Lakes.

The public trust doctrine could be used to address climate change by requiring utilities to transition to available, low-cost, zero-carbon energy resources.  Because clean energy is now widely acknowledged to be the energy source of the future, there is no good reason to allow the continued loading of acid gases, heavy metals, and carbon pollution into our Great Lakes, rivers and streams.

Skip Pruss

The public trust doctrine will become increasingly important as issues of water availability, water quality, and water scarcity become more frequent and more contentious.  The doctrine could provide a means of directly countering the present actions of the federal government to dismantle environmental laws and regulations.  The doctrine can also enable communities to maintain high standards for the protection of natural resources and environmental values while being proactive in preventing problems before they arise.

The public trust doctrine is uniquely compelling as a means to address large-scale complex problems.  With so much at stake, a broad application of the public trust doctrine is needed now.

Public Trust Tuesday: A Spreading Stain

Published on January 23rd, 2018 by - 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 1500-year-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.

New York’s Love Canal was once an instantly recognizable label to most Americans.  In 1980, after toxic waste from an old chemical dump began to ooze up in the yards of a housing development built atop the dump, authorities evacuated the neighborhood.  Love Canal became a national symbol of chemical mismanagement, and the impetus for the Superfund cleanup program.

Michigan officials looking for toxic waste dumps and spill sites affecting groundwater found them everywhere.  That, coupled with public concern about everything from health effects to depressed property values, prompted the Legislature and voters to kick in more than $1 billion in state funds for groundwater cleanup.

And then something happened.

In 1995, state policy changed.  Instead of striving to remove all contamination, Michigan went to a risk-based approach – meaning contamination could remain in the ground if means could be put to work to limit the exposure of human beings to these poisons.  These means could be everything from a concrete cap atop contaminated soil to a local ordinance prohibiting the drilling of new wells into contaminated groundwater. 

That saved businesses legally responsible for the contamination considerable money, but it also fostered the spread of contaminants in groundwater in many locations – often groundwater once used for drinking water.

Some areas with spreading contamination have recently attracted media attention, including sites associated with Wurtsmith Air Force Base, Wolverine Worldwide and Mancelona.

The Michigan DEQ estimates that contaminated groundwater is coming out of the ground and discharging to lakes, streams or wetlands at approximately 1,000 locations in Michigan.  It’s as if 1,000 new (and sloppy) chemical plants were sited in Michigan and were allowed to have lax or no controls on the pollution they are sending into our common waters.

The public trust doctrine holds that certain natural resources like navigable waters are preserved in perpetuity for public use and enjoyment, and that government has a duty to safeguard these uses as a trustee on behalf of the public.  By allowing contaminated groundwater to spread and pollute surface water, the State of Michigan has failed to fulfill its public trust obligations.  It’s not only a breach of the public trust in water, it’s a potentially grave threat to the health of our citizens.

Lake Erie and the Public Trust Doctrine

Published on January 22nd, 2018 by - Blog Posts

Last week, the U.S. EPA acknowledged the serious algae problem sickening western Lake Erie.  It withdrew its approval of the State of Ohio’s decision not to declare the western Erie basin to be impaired.

Does that mean the lake will be cleaned up soon?  Hardly.

EPA’s determination bounces the ball back to Ohio for reconsideration.  If the Ohio EPA changes its mind, western Lake Erie will join the impaired list (where reality has already placed it), and a process to identify all relevant phosphorus sources and decide who must reduce by how much will begin.  Years may pass before meaningful reductions are achieved.

This is a shame for one of the world’s largest and most biologically productive lakes.  Toxic algae cut off the public water supply of the Toledo area for a weekend in 2014, and large green blobs have plagued the western lake for a dozen years.  It shouldn’t take years and years merely to launch a cleanup effort.

There is a better way to get action – the public trust doctrine.

In 2014, the International Joint Commission, which monitors the boundary waters shared by the U.S. and Canada, called for a 46 percent cut in the average annual phosphorus load in Lake Erie’s central and western basins to reduce the hypoxic dead zone, and a 39 percent cut in the average annual phosphorus contributed by the Maumee River to reduce harmful algal blooms.

At the urging of FLOW, the Commission recommended achieving those reductions by applying Public Trust Doctrine legal principles to write and enforce restrictions unattainable using conventional regulation.  The Public Trust Doctrine, based on ancient governing and legal principles, establishes the Great Lakes as a “commons,” community assets to be collectively protected and shared.

The Commission called the doctrine a vital tool to update federal and state water pollution statutes, which essentially give cities, industries, and farmers the authority to pour specific amounts of contamination into the lakes.  By acknowledging the Great Lakes as a commons, the doctrine could give governments fresh authority to protect waters from any source that would cause harm.

Functionally, the public trust guarantees each person as a member of the public the right to fish, boat, swim, and recreate in Lake Erie, and to enjoy the protection of the water quality and quantity of these waters, free of impairment.  The effects of harmful algal blooms – from “dead zones” that suffocate aquatic species, to toxic secretions that close beaches and pose health hazards to boaters, fishers, and swimmers – are clear violations of the public trust.  Thus, as sworn guardians of the Great Lakes waters under the public trust, the states have a duty to take reasonable measures to restore the water quality and ensure that the public can fully enjoy their protected water uses.

There are two choices – a seemingly unending process of study and delay using conventional approaches, or strong action by the states, compelled by their citizens, to fulfil their obligations as trustees of Lake Erie.  The fate of the lake hangs in the balance.

The Dunes and the Water

Published on January 19th, 2018 by - Blog Posts

“It is said in the desert that possession of water in great amount can inflict a man with fatal carelessness.” 
― Frank Herbert, Dune

As a youngster, my favorite novel was Frank Herbert’s Dune, which takes place on a fictional desert planet. Unsurprisingly, this planet houses plenty of sand but precious little water.

Climbing the sand dunes of Sleeping Bear, I would pretend to be walking alongside the protagonist, Paul, struggling across the barren and dry land. I would climb as high as I could and feign shock when I caught my first glimpse of Lake Michigan, pure water as far as the eye could see.

I would turn to Paul and say, “All of our fears were for naught.” He would say nothing, being wiser than me, knowing that a large supply of water came with its own problems of carelessness, greed, and ignorance. Around this time, my parents would reach the top of the dune and worry about me as I stood and talked to myself.

“A man’s flesh is his own; the water belongs to the tribe.” 
― Frank Herbert, Dune

In Paul’s world, water is sacred. People use full body suits to recycle as much water as possible simply to stay alive. Everyone actively shares the water, as it is vital to the survival of all.

“All the water that will ever be is, right now.”
― National Geographic

Nayt Boyt

In our own fictional worlds each day, we turn a lever that produces water. “Produce” is the verb we use, but it is not an accurate one. Water is not being assembled or created, simply transferred from one location to another. It is the same water whether in Lake Michigan, our body, or in the ground – whether solid, liquid, or gas. Water is not produced. It already exists.

The Great Lakes and the Earth face powerful threats to their water in the near future. Like Paul, we have a limited amount of our shared water. We must protect it fiercely.

Public Trust and the Story of Water

Published on January 16th, 2018 by - Public Trust Tuesday

byzantine-empire-public-land.-trusts

At the core of its plain meaning, public trust means that future generations depend on us – trust us – to protect the water, air, and land upon which their wellbeing will depend. Public trust principles are enshrined in law. The people who serve in positions of leadership and authority are legally responsible to all of us and to our children for protecting the vital natural resources that we all own in common. It’s really not that hard to understand. If only being able to grasp the principles of the public trust doctrine was the end of the story.

Here’s a big-picture story that, for me, underlines the value and importance of public trust principles and public trust law to help protect the natural, social, and cultural resources upon which healthy and prosperous human communities depend:

The global population is booming. The global climate is changing, becoming warmer. Demands for fresh water are increasing and fresh water is becoming increasingly scarce. Water is becoming increasingly commodified, monetized, privatized, and politicized. Not every influential leader and organization believes that water is a human right, so there is a real and growing struggle for simple access to water. Even if people believe that access to fresh water is a human right, we don’t have in place shared protocols that will protect the water commons from tragic misuse.

We read this story locally in the affronts to public health, social justice, and responsible leadership that the water debacles in Flint and Detroit have tragically revealed. We read it in proposals to operate concentrated fish feeding operations – fish factories – in our lakes and rivers. We read it in actions by Nestle and other water-raiders that come back again and again to capture and carry off Great Lakes water. We read it in the protection of land-use practices that contaminate groundwater and feed toxic algae blooms in the Great Lakes. And we read it very clearly in the lethargic leadership that seems more willing to protect corporate interests in using Great Lakes water as a host for oil pipelines than to protect Michigan’s public interests in the ecological and economic value of water itself.

It is clear that many of the most important chapters in the story of water are being written right here in the Great Lakes basin. The Great Lakes encompass 20% of the fresh surface water on the planet. The waters of the Great Lakes directly service 40 million residents of the U.S. and Canada. Risks to the integrity and viability of the Great Lakes as a hydrological system are increasing. Those of us who live in the Great Lakes basin today have an affirmative duty to protect water, and the risks to that water are global and systemic. Public trust doctrine and law are tools for the execution of that duty.

The public trust doctrine tells us and empowers us to act as stewards of the unique and irreplaceable repository of fresh surface water. The Great Lakes watershed, in a very real sense, is a proving ground on which human leaders and communities are testing the proposition that it is either possible or not possible to create water-smart blue communities and vibrant blue economies. The proof of the proposition and the story of water that we leave to our children rests on our ability to empower ourselves and our fellow citizens to become water-literate lovers of waters, to educate and support water-responsible leaders, and to demand that decision-makers in the public and private sectors exercise their duties as trustees to protect the natural resources and public beauties that future generations will inherit.

What do you think?

Mike Vickery serves as vice-chair of FLOW’s board and as an advisor on strategic environmental communication, community engagement, and organizational capacity-building.  He is an Emeritus Professor of Communication, Public Affairs, and Environmental Studies at Alma College where he was founding chair of the Department of Communication and served as Co-Director of the Center for Responsible Leadership.

Mike holds a PhD in Communication.  His graduate work focused on public discourse and controversies related to technical and social value-conflicts.   He has taught graduate and undergraduate courses at the University of Texas-Austin, the University of Arizona, Texas A&M University, and the University of Wisconsin-Eau Claire.  His areas of teaching, consulting, and applied scholarship include environmental rhetoric, risk communication, public health communication, and organizational communication.

Considering Knowledge of the Great Lakes and Plastic Bottles

Published on January 12th, 2018 by - Blog Posts

Raised on Schoolhouse Rock!, I learned from a very young age that “knowledge is power.” While at first just a witticism I repeated in the show’s quirky inflection, the saying soon became real. This was one of the first bits of power I acquired, and I ran with it.

I learned to read at a young age, and I soaked up anecdotes and information as best I could. Though nowadays I enjoy spending my naptimes actually napping, I spent them as a youth reading rather than snoozing, and I quickly gained the wisdom of the Hardy Boys and Encyclopedia Brown. I memorized my favorite poems, by the great Shel Silverstein.

When I did not become the most powerful of all from this process, I realized that there are other forms of power as well. Unfortunately, not all of these other forms of power are as gentle or as honest as knowledge. Nonetheless, I always found the power of knowledge to be a worthy adversary, the one that wins out in the end, and I have stuck with it.

As an individual, the greatest way to impact the world I have found is through spreading that knowledge. It is the power that expands and grows as it is shared.

In my everyday life, I learn what I can. What is happening to the waters in our Great Lakes? Who is responsible for the decisions that impact the Lakes? Even simply: where does my drinking water come from? I do my best to distribute this power to friends, family, and even strangers. Though I do run into opposition, this is often excellent for the sake of knowledge. A debate often only leads to more knowledge gained on both ends.

If I see a friend of mine planning to purchase a plastic bottle full of water to accompany his sandwich for lunch, I will interrupt to offer my knowledge as well as several alternative solutions. Perhaps he could sip from the drinking fountain in plain sight. Or he could go grab the reusable water bottle in his nearby car. Or he could ask for tap water in a glass instead of bottled water.

These alternatives not only support the wallet, they support the health of the Great Lakes, and the right for safe, clean, and accessible water for everyone. Water is public. Water is a human right, and we should not be paying to allow a private company to profit from our water.

Nayt Boyt

We must share this knowledge, that the Great Lakes and their waters must be protected for our uses. That the ancient but relevant Public Trust Doctrine reinforces the fact that our leaders must protect those waters for our uses. We must first acknowledge any threats to these waters, and then eliminate them, so that this treasure will be here for our use and enjoyment, for our livelihood.

I expand my power of knowledge to you today, and by extension, to the people you interact with. The next time you plan to grab a bottle of water, or see another who does, consider the alternatives. Make sure the actions in your life support a thriving future for the Great Lakes, and for all of us.

Restoring Respect for the Public Trust

Published on January 9th, 2018 by - 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 1500-year 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 – like the Great Lakes — belongs to the public.  And governments, like the State of Michigan, have a responsibility to protect public uses of these resources.

In the coming year, we will explicitly address public trust concerns on what we’re calling Public Trust Tuesday.  Today, we begin with a roundup of critical public trust issues in Michigan in 2018.

Let’s look on the bright side, rather than dwelling on past failures. In the coming year, state officials and legislators have several opportunities to full their responsibilities as trustees of public trust resources:

Line 5:  The twin pipelines crossing the Straits of Mackinac underwater are there only because, in 1954, the state granted the company now called Enbridge the privilege.  State government never relinquished its ownership, on behalf of the public, of these waters and submerged lands. 

In 2017, a stream of disclosures about negligence, poor pipeline stewardship, and concealment of critical information by Enbridge dramatized the risk to the public interest posed by Line 5.  The Attorney General and Governor have the opportunity to eliminate this risk by revoking the Enbridge easement and phasing out or shutting down Line 5.

Nestle: The multinational corporate giant in 2016 asked the state DEQ for an increase in its already excessive pumping of groundwater for bottling and sale.  This despite evidence that Nestle’s existing withdrawal is lowering the water levels of streams fed by this groundwater, and harming fish and fishing.  The DEQ has an opportunity to protect the public trust by denying Nestle’s permit request.

Aquaculture:  Proponents are seeking a state law authorizing the installation of factory fish farms in Great Lakes waters.  These operations, which generate large amount of fish feces and could undermine the genetics of public fisheries, do not belong in public waters.  Further, the private occupancy of public waters by fish farms and other structures is wholly inconsistent with the public trust doctrine. The Legislature has the opportunity to protect the public trust by rejecting the legislation.

These are only some of the public trust concerns at stake in Michigan and the Great Lakes this year.  FLOW will work to restore awareness of and respect for the public trust doctrine among Michigan officials, and help the public bring pressure on them to fulfill their responsibilities.

Resources for the New Year

Published on December 29th, 2017 by - Blog Posts

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.

The Gift of Freshwater

Published on December 26th, 2017 by - Blog Posts

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.

The Nutcracker & The Public Trust

Published on December 26th, 2017 by - Blog Posts

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.