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Rockaway Museum regular hours are Mondays, Wednesdays, and Thursdays from noon to 4 p.m. http://www.newsday.com/features/ny-feat-fcov0807.story Precious Past, Uncertain FutureThe 93 historic bungalows at West Meadow Beach are slated for state-ordered demolition in 2004, but the owners aren’t giving up without a fightBy Katti Gray Constructed of scrap lumber from old Camp Yaphank, it is a three-room cottage
of some ruggedness and age, without motor-driven air-conditioning, unvarnished
and unrefined. It holds the original kitchen sink and grandma's old rocking
chairs in triplicate, refinished by Laurie Walcott, the Walcott kids' mother and
current lady of the summer house. Its windows are raised the old-fashioned way,
with stone and pulley. A screened-in front porch holds at bay the biting gnats and mosquitoes and
provides a perch for catching the breeze and a rarefied horizon, a sunset
melting into the sea.In the backyard, there is a pit for barbecues and
clambakes, which inhabitants in this and the 92 other old bungalows at West
Meadow Beach host with some routine. But those generations of shoreline living
are slated to end in 2004. Then, by state order, there will be no more leasing
of public parkland to hold the bungalows, and the cottages must either be moved
to privately owned land or face demolition. "This cottage is incredibly precious to Bob,” Laurie Walcott said of the
structure and her husband, who spent his boyhood in Cottage 85. "His parents are
both dead. Our children have no grandparents on that side, but they can come
here to where their grandparents were.” "My family's been here a long time,” said Alexander Walcott, 14, the oldest
of the Walcott offspring, just returned from hanging with the kids in the
bungalow next door. "It's the only place where I get a sense of ancestry, of
that generation having been here before me.” He tells his Colorado chums about the fun to be had at West Meadow, of
baseball games on the sandbar rising high and wide when the tide recedes, the
waterskiing and tubing. In a manner of speaking, he has had the ocean as his
playground. But many in Brookhaven believe that no part of that playground
should ever have been offered for anyone's private use. They have been saying as
much since 1903, when the first bungalow was built. To them, the Walcotts and their neighbors have retained an unfair advantage
and access to the shore. In 1970, a then-Democratic-controlled Brook.haven Town Board designated West
Meadow a public beach; cottage opponents contend that many considered the space
public long before that. Even so, the matter continued to tumble in and out of
court. Defying one order that the cottages be immediately razed, GOP town
officials voted in 1992 to rent land to the cottage owners for another 12 years.
Cottage critics sued again and, in 1994, a State Supreme Court judge demanded
that the cottages come down. Trying to appease cottage owners and their critics,
state lawmakers set the demolition deadline for 2004, when the public beach is
scheduled to be fully restored. After the demolition, the cottage owners will
not be compensated for their loss. But they have chosen to remain on the
beachfront and have known clearly what they risked, critics said. "It is as much public parkland as Central Park or Jones Beach or Niagara
Falls. It is protected under the same laws and has the same level of expectation
as to how it is handled as a public trust, so that you do not end up with these
pockets of exclusivity,” said Assemb. Steve Englebright (D-Setauket), a
geologist whose district encompasses West Meadow Beach. He was chief architect
of the state law, which was designed to give bungalow owners time to wean
themselves from their beloved property, while paying town officials a fee to
help fund an endowment for development and upkeep of the public beach to come in
2004. The bulk of the cottages were built in the 1920s and 1930s, during what some
say was a flu epidemic believed to be less threatening to those who stayed at
the waterside. "There is no proof of that. It's not mentioned anywhere in the official
record,” said Jane Gombi.eski, a local historian who is writing a book on the
cottages and wants them torn down. Toward the goal of keeping them intact, cottage owners are still lobbying
lawmakers to spare their houses. And in September, architectural historian and
folk.lorist Nancy Solomon will be leading another of her historic tours of the
bungalows, in part to raise awareness of what she considers to be precious and
pristine. "It's a natural heritage resource. There is not much anywhere that is
comparable to this,” said Sol.omon, executive director of Long Island Traditions
and author of "On The Bay: Bay Houses & Maritime Culture of Long Island.” Indeed, an assortment of shanties and lusher quarters dot the shores of Long
Island. But those in West Meadow Beach are the only ones built on public land. Those bungalows were built on the prescribed 50- by-50-foot lots, and each
sits 150 feet from the high- tide mark. They are strewn along about a mile of
the beach. Most were built with one or two bedrooms. The most untouched of them
are distinguished by their architecture, including fireplaces, porches and walls
that are opened at floor and ceiling to allow ventilation. Some of the
structures are close to their original form, and others have been modernized. A couple of bungalow owners keep watch over the area year-round, given that
arsonists have torched a few unoccupied cottages over the years. By law,
everyone else is allowed the pleasure of their bungalows from April through
November. About a half-dozen of the current cottage inhabitants, including the
Walcotts, hail from families that have passed the prop.erty down from one
generation to the next. The first among cottage inhabitants included individuals such as Bob
Walcott's grandfather Wendell Still, who, in his time, owned Suffolk County's
largest chicken farm. The Swezeys, of local department store fame, have owned
there. So did the Knapp and Terry families, for whom some local streets are
named. Critics of the cottages say they were established for and by the politically
connected in Brookhaven, where the GOP rules. That has meant Republican town
supervisors, highway department officials, county .judges (including sitting
Judge Gail Prudenti), and soon. "My children never got to use those 52 acres. A generation of children never
got access to that land,” said Herb Mones, a high school social studies teacher
and plaintiff in the lawsuit yielding the 2004 demolition plan. "The pattern of
exclusion is evident when a few people control parkland.” Richard Confoy, a retired mortgage banker and president of the West Meadow
Bungalow Association, said he bought his cottage 28 years ago as a getaway for
himself, his wife and six children. Far from being politically connected, he
said he simply knew a local real-estate agent who tipped him to what was on the
market. "When I walked in the back door, I could see straight through to the water,”
Confoy said. He paid $14,000 for the cottage back then. Now, he and the other owners each
pay $6,000 a year to the town; the fee goes up to $7,000 next year. In
refurbishing his bungalow, Confoy added a screened-in porch and upper deck,
enlarged the lower deck and brought the number of bedrooms to four. His is the
largest cottage, Confoy said. "The kids learned to fish and boat and do all the right things here,” he
said. "With the slow tide, it is such a safe place.” Parker Hough and his brother Shawn, former construction workers now in real
estate, purchased a cottage in 1991 for $35,000 and modernized it. (Their
parents sold one in the 1970s.) Dick Russell, a retired deputy director of the International Trademark
Association, and Carol Russell, his wife, a real-estate agent, spent $130,000 a
month ago for a cottage of their own. "It's a roll of the dice,” said Dick Russell, president of the Long Island
Museum's board of directors. "We think there are reasonable logical arguments as
to why they shouldn't be bulldozed.” Although scientist-turned-lawmaker Englebright dismisses their reasoning as
bad science, the West Meadow association commissioned a study 10 years ago. It
concluded that the cottages protected the salt marshes behind them and the beach
in front of them. "We believe it is a bulwark,” Confoy said, keeping the marsh and beach from
eroding. "That,” Englebright said, "is not supported by fact or observation.” There
are, he added, beaches to the left and right of West Meadow that are fashioned
similarly and held together by nature. No cottages are situated there, he said. If anything, critics say, the existence of the bungalows, their attendant
septic tanks and such threaten the natural environment and habitat for, among
other creatures, the piping plover, a bird on the federal list of endangered
species. The cottage owners say they recognize how fragile their environs are. "By and
large, we are very friendly stewards of the land,” said Bob Walcott, who owns
and operates apartment buildings in Colorado. His cousin, one of the Stills,
lives next door. They also understand how perilous perception can be, they said. In the
mid-1990s, they began removing the "No Parking” and "No Trespassing” signs they
had posted -- critics call that a bid to polish their image -- and say they
allow fishermen and others easy access to the public sands and waters in front
of the bungalows, letting them park vehicles on and walk across the leased lots
to their preferred spots. What draws cottage owners to the same places, said Carol Russell, are the
birds that begin singing in the predawn and the ripened beach plums canned and
stored for consumption long after the bungalows are boarded up for another
season. "You don't have a lot of manicured lawns out here,” she said. "You see the
trees and the tall grass and the beach plums and the boats passing by.” "The sense of history here is astounding. Everybody you meet in the area
knows the cottages,” said Sandra Sprows, an English pro.fessor and Parker
Hough's wife. That is a pretty picture but not a full one, historian Gombieski said. "People look back on their days -- even I do -- and get all misty-eyed,
romantic and rosy. The cottages are a great place but, by God, people have to
remember how they came to be.” Those in the bungalows say their living is much less exclusive than critics
contend. They say cottages have been known to change hands -- Confoy's daughter
sold one a few years back to help finance the purchase of her dream home on an
ocean bluff nearby -- and that any Brookhaven resident with the means and right
timing can buy one. "These are not million-dollar beach houses,” Dick Russell said. "It's not pretentious. It's not CEO living next to CEO living next to CEO. It is a place unhampered by progress. Unexpanded and unchanged.” Copyright © 2002, Newsday, Inc. For updates
click here Access to New Jersey Beaches: The Public Trust Doctrine -- by Karen A. Negris Faced with ever growing demand for a limited supply of public beaches, the Supreme Court of New Jersey has increased access to that state's beaches in a number of recent cases by broadening the scope of the public trust doctrine. As it had evolved under the common law, the public trust doctrine facilitated commercial activities such as navigation and fishing by preserving a public right of access to navigable waters. In recent years, however, the high court of New Jersey has ventured well beyond this original function and has invoked the doctrine to restrict the rights of beach owners to exclude the public from private beaches. This article traces the development of the public trust doctrine from its common law origins to its recent rapid growth in New Jersey. The article also argues that the extension of the doctrine in Matthews v. Bay Head Improvement Association to privately owned dry sand beaches violated the fifth and fourteenth amendments by taking private property for public use without compensation. Access to All Beaches along our Coast: Anyone visiting the beach in the last year or planning to go this summer? Anyone enjoyed boating or fishing here on the Atlantic Coast and Bays? Well, do any of you know why you have the right to be there, to be out on the water or walking along the beach? There's a legal doctrine called the Public Trust Doctrine that was handed down from Roman times to U.S. law and it says that coastal and water resources are so unique that they are held in trust for the citizens. In other words, all along our coast the beaches are kept in trust for all citizens. This all came about in this country because a man was trying to harvest oysters. In order to get to the oysters, he had to pass along the beach and then move through the waterways. After being halted, he challenged the decision and took his case all the way to the Supreme Court. The court stated that, indeed, these resources are so unique that they are held in trust for all of us. National Public Trust Study Putting the Public Trust Doctrine to Work E X E C U T I V E S U M M A R Y Prepared by The Coastal States Organization Funded Through a CZMA Section 309 Grant State of Connecticut, Grantee November 1990 THIS REPORT WAS PREPARED BY THE
PUTTING THE PUBLIC TRUST DOCTRINE TO WORK The Application of the Public Trust Doctrine To Lands and Waters in the Coastal States Prepared By David C. Slack, Esq. Project Manager, National Public Trust Study General Counsel Coastal States Organization -With- Margaret M. Fleming R Kerry Kehoe, Lq. Coastal States Organization -and- Michael 1. Glennon David F. Tavella Legal Research Assistants Illustrations by Donna Dickan NATIONAL PUBLIC TRUST STUDY STEERING COMMITTEE Mr. Arthur J. Rocque, Jr. Director Coastal Resources Management Division Department of Environmental Protection State of Connecticut Mr. Chris Shafer Chief, Great Lakes Shoreland Section Department of Natural Resources State of Michigan Dr. H. Wayne Beam Executive Director South Carolina Coastal Council Mr. David Worly Office of Coastal Mangement Dept. of Environmental Regulation Star of Florida Mr. Richard Delaney Director, Urban Harbors Institute University of Massachusetts Mr. Rod Mack Supervisor, Shorelands Division Department of Ecology State of Washington Mr. Murray Towill First Deputy Director Office of State Planning Office of the Governor State of Hawaii ACKNOWLEDGMENTS Many legal practitioners, including those in attorney general offices as well as coastal programs. in the twenty nine participating States dedicated several thousand hours collectively towards the research of this Compilation It is impossible to list an of those who contributed to this effort. Listed here are the individuals who headed up the research effort within each of the States and prepared the responses utilized in this Compilation.
Alabama: Laura S. Howorth Esq. Staff Attorney. Missisippi-Alabama Sea Grant Legal Program, Alaska: G. Thomas Koester, Esq. Assistant Attorney General State of Alaska American Samoa: Caroline Crenna, Esq. Assistant Attorney General, Territory of American Samoa California: Dennis Eagan, Esq. Assistant Attorney General State of California Robert Rudolph, Acting Administrator Coastal Resources Management Connecticut: Jane Stall, Esq.. and Yvonne Bolton, Esq; Coastal Resources Management Division Delaware: Christine M. Venard Legal Assistant Department of Natural Resources Florida: Clare E. Gray, Esq. Governor's Legal Counsel, State of Florida Hawaii: William Tam, Esq. Deputy Attorney General, State of Hawaii Illinois: Daniel Injerd, Chief Lake Michigan Management Section, State of Illinois Louisiana: James G. Wilkins, Esq. Louisiana Sea Grant Legal Program Maine: Allison Rieser Marine Law Institute, University of Maine Maryland: Lee Epstein, Esq. Office of Attorney General, State of Maryland Massachusetts: Mary C. Kingsley, Esq. Special Assistant Council, CMZ Program Michigan: Chris K Shafer, Chief Great Lakes Shorelands Section Mississippi Helen Wetherbee, Esq. Special Assistant Attorney General, State of Mississippi New Hampshire: Ann L. Renner. Esq. Assistant Attorney General, State of New Hampshire New Jersey: William Anderson, Esq. Deputy Attorney General, State of New Jersey New York: William Sharp Esq. Bryan Cullen, Esq, Counsel. CMZ Program North Carolina: Robin W. Smith, Esq. Assistant Attorney General, State of North Carolina Ohio: Kyme Wall Rennick, Esq. General Counsel, Ohio Department of Natural Resources Oregon: Lucinda Moyano, Esq Dept of Land Conservation and Development Pennsylvania: Scott K. Thistle, Esq. Assistant Counsel, Department of Environmental Resources Rhode Island: Brian K Goldman, Esq. R.I. Coastal Resources Management Council State of Rhode Island South Carolina: E Newman Smith, Esq. Staff Attorney, Nancy Tecklenburg, Esq., Staff Attorney Texas: Tom Nuckols, Esq. Texas General lands Office, State of Texas Virgin Islands: Margaret Magras, Esq. Counsel's Office, Department of Planning and Natural Resources, United States Virgin Islands Virginia: Frederick S. Fisher, Esq Assistant Attorney General, Commonwealth of Virginia Washington: Kathleen Ryan, Esq. Shorelands and CMZ Program, Department of Ecology State of Washington
TABLE OF CONTENTS What is the Public Trust Doctrine? 1 Origins and History of the Public Trust Doctrine 1 Lands, Waters and Living Resources Subject to the Public Trust Doctrine 2 The Dual Title in Public Trust Lands: Jus Publicum & Jus Privatum 3 upper Boundary of Public Trust Lands 4 Boundaries of Public Trust Land: A Moveable Freehold 5 Lands Exempt from the Public Trust Doctrine 5 Public Uses Protected by the Public Trust Doctrine 6 The Conveyance of Public Trust Land 6 The Nature of the Remaining Public Trust Servitude 7 State Exercise of its Public Trust Authority 7 "Takings" Claims and the Public Trust Doctrine 8 Federal Preemption and the Public Trust Doctrine 9 Asserting the Public Trust Doctrine Through the CZMA 10 The Public Trust Doctrine and Selected Coastal Management Issues 10 1. Access to Public Trust Lands and Waters 10 Based on The Public Trust Doctrine 2. Private Docks and wharves 12 3. Tidelands Oil and Gas Development 12 4. Acuaculture 13 5. Environmental Protection 14 6. Waterfront, Harbor and Marina Development 14 Conclusion 15
What is the public Trust Doctrine? In the United States, beaches, bottomlands, tidelands, tidewaters, navigable freshwaters and the plant and animal life living in these waters are accorded special treatment under State and Federal law. For the most part, these lands, waters and wildlife are owned by the public, but held in trust by the State for the benefit of the public. Generically, the body of law pertaining to these lands, waters and living resources is called the public Trust Doctrine.
The Public Trust Doctrine provides that title to navigable waters, the lands beneath, as well as the living resources inhabiting these waters within a state is a special title. It is a title held by the State in trust for the benefit of the public, and establishes the right of the public to use and enjoy these trust waters, lands an resources for a wide variety of recognized public uses. Of great importance, it is also a title with two components: the public's trust title (jus publicum) and a private proprietary title (jus privatum), discussed more fully below. In the United States there are 79,481 square miles of inland navigable waters, 74,364 square miles of coastal waters, and an estimated 37,500 square miles of ocean waters within the jurisdiction of the coastal states. This totals approximately 191,000 square miles of navigable waters within the boundaries of the states -- roughly equal in size to Maryland, Virginia, North Carolina, South Carolina and Georgia combined -- all of which is subject to the public Trust Doctrine. Further, there are 88,633 miles of tidelands and l0,031 miles of Great Lakes shoreline, for a total of 98,664 miles of trust shoreland. The Public Trust Doctrine is a very important part of the body of law that applies to this tremendous and special area of lands and waters. Origins and History of the Public Trust Doctrine The public Trust Doctrine dates back to the sixth century Institutes of Justinian and the accompanying Digest, which collectively formed Roman civil law, codified under the reign of the Roman Emperor Justinian between 529 and 534 A.D. The sixth century Institutes of Justinian, however, were based, often verbatim, upon the second century Institutes and Journal of Gaius. The Institutes of Justinian remain the touchstone of today public Trust Doctrine. The Institutes assured the citizens of Rome that all could "approach the seashore, provided that he respects habitations, monuments, and the buildings, which are not, like the sea, subject only to the law of nations." Further, the right to build a cottage, dry or repair nets, fish, or use the banks of rivers to tie boats to trees, and to place any part of their cargo there, even though the banks of a river are private property, were assured by the Institutes. Roman civil law eventually influenced the jurisprudence of all western European nations. Most important to American jurisprudence, Roman civil law was adapted in substance (with modifications) by English Common law after the Magna Carta. English common law in turn recognized the special nature of the tidelands and waters, giving them protection in the king's name for all English subjects. From England to the American colonies, through the American Revolution to the Thirteen Original States, tempered by the United States Constitution and the evolution of modern society, the Public Trust Doctrine survives in the United States as "one of the most important and far-reaching doctrines of American property law." Lands. Waters and Living Resources Subject to the Public Trust Doctrine To apply the Public Trust Doctrine, it must first be determined whether the land, water or living resources in question are indeed within the geographic scope of the doctrine. Generally speaking, all "navigable waters," the lands beneath these waters and the living resources inhabiting them are subject to the Public Trust Doctrine. What is meant by the term "navigable waters" has been the source of confusion for centuries in both State and Federal courts. Under the English common law, due to the geography of England, the term "tidewaters" and "navigable waters" were synonymous. The presumption was that tidelands were owned by the king, although a grant of the private jus privatum interest could be conveyed into private hands. In such a case, the public's jus publicum interest remained paramount over the jus privatum interest. English common law became the law of the thirteen colonies, and then of the Thirteen original States. Each of the Thirteen Original States held, and continues to hold, a public trust interest in their shorelands subject to the ebb and flow of the tide, up to the ordinary high water line. Each also had, and continues to have, the authority to define the boundary limits of the lands held in public trust as well as the authority to recognize private rights in their trust lands, and thus diminish the public's rights therein. As the Thirteen Original States held their lands beneath navigable waters in trust, so did the 37 new States receive them on an equal footing with the Thirteen Original States. The question of what lands each of the 37 new States, in contrast to the Thirteen Original States, received in trust upon entering the Union is a Federal question. Because the term 'navigable waters' has evolved and changed over time, one must look to the Federal law at the time the State entered the Union to determine what trust lands passed to the State upon statehood. After statehood, State law (if not in conflict with Federal law) applies to determine ownership of the lands beneath navigable waters, as well as the public rights in those waters. As a result, as the definition of navigable water has changed and evolved on both the federal and state level, so too has the area of lands and. Waters subject to the Public Trust Doctrine.
The Dual Title in Public Trust Lands: Jus Publicum & Jus Privatum
Public trust lands, i.e. tidelands, freshwater shorelands and submerged lands, are special in nature. Because of the salt content, weathering action, constant flooding and adverse environment, they are useless for nearly all types of agriculture. Structures built on trust lands must Because of the special nature and public character of these lands, the title is not a singular title in the manner of most other real estate titles. Rather, public trust land is vested with two titles: the jus publicum -- the collective rights of the public to fully use and enjoy trust lands and waters for commerce, navigation, fishing, bathing and other related public purposes -- and the jus privatum, or the private proprietary rights in the use and possession of trust lands.
The jus publicum interest cannot be conveyed or alienated to private ownership, for the State cannot abdicate its trust responsibilities to the people. These collective rights are the public's property rights in these lands, waters and resources, rights that are held in trust by the State. On the other hand, the jus privatum interest may be and often is conveyed into private ownership. Nearly one-third of all public trust land is privately owned. When a private individual or firm "owns" tidelands1 shorelands, or submerged lands, he or she holds only the jus privatum interest, an interest that remains subservient to the public's dominant jus publicum interest. It is commonly stated that trust lands are either publicly or privately owned. In both instances, however, the State retains and holds in trust the public's jus publicum interest. For 'publicly' owned trust lands, the State also holds the jus privatum title, whereas for 'privately' owned trust lands the State has conveyed the jus privatum into private ownership. Thus, the difference between publicly owned and privately owned trust lands is whether the State has validly conveyed the jus privatum.
Upper Boundary of Public Trust Lands
In general, the upper boundary of public trust shorelands, whether those lands are privately or publicly held, is the ordinary high water line. For tidal shorelands, this term is generally defined as the mean high tide line, although many exceptions and diverse interpretations exist throughout the country. For freshwater shore-lands, this term generally means the line to which high water reaches under normal conditions, not the line reached in floods nor by the great annual rises of a river. In all situations, however, the location and description of the upper boundary of trust shorelands is determined by local law custom and practice. A growing number of states recognize some public trust interests in privately owned "dry sand" areas immediately upland of the mean high tide line, usually extending up to the vegetation or debris line. Further, there may be public trust considerations concerning the use of non-navigable tributaries to navigable freshwaters and public trust uses therein.
Boundaries of Public Trust Land: A Moveable Freehold Natural, gradual and imperceptible changes in the shoreline (erosion and accretion) generally act to change the boundaries of both the privately owned uplands and the public trust lands. Natural, sudden changes in the shoreline, such as those caused by severe storms or earthquakes (avulsion), usually do not act to change boundary lines. Man-induced changes such as filling or other modifications of the shoreline by the upland owner normally do not act to change boundary lines unless a clear legislative grant provides otherwise. Some States do provide, however, that accretion or erosion resulting from artificial changes to the shoreline, such as groins and jetties, will change the upland boundary line if the upland owner is a "stranger' to the man-induced change.
The public's trust rights in "new" shoreland resulting from natural, gradual and imperceptible forces remain unchanged. The public's trust rights to use shoreland within the boundaries of the upland owner due to avulsion, however, remain unclear. The public's trust rights to use filled trust land also is unclear, with significant variation between State court rulings on the point.
Lands Exempt from the Public Trust Doctrine Lands beneath tidal and navigable fresh waters and below the ordinary high water mark are presumptively subject to the Public Trust Doctrine. In fact, many States apply the Public Trust Doctrine to all tide waters, navigable fresh waters and the lands below these waters within their respective jurisdictions without exception. Exceptions do exist, however, although their occurrence is infrequent and usually strictly limited. Nonetheless, these exceptions are important, for if presumably public trust lands are found to fall within one or more of these excepttons1 the Public Trust Doctrine does not apply. Exceptions include conveyances of shorelands prior to Statehood, conveyances in accordance with international obligations, federal condemnation of State public trust land, Indian treaties, artificially created shorelands, exceptions trust land, Indian and other minor.
Public Uses Protected by the Public Trust Doctrine The original purpose of the doctrine was to assure public access to navigable waters for navigation and commerce (waterways being the principal transportation arteries of early days) and for fishing, an important source of food. Thus, historically, the common law rights of the public in trust lands and waters were related to navigation, commerce and fishing. But State and Federal courts have recognized that "when administering the trust the State is not burdened with an outmoded classification favoring one mode of utilization over another." As society and technology have evolved, however, the public's use of trust lands and waters has necessarily changed. Over the centuries the Public Trust Doctrine has kept pace with the changing times, assuring the public's continued use and enjoyment of these lands and waters. Recognized public uses of trust lands today include fishing, bathing, sun bathing, swimming, strolling, pushing a baby stroller, hunting, fowling, both recreational and commercial navigation, environmental protection, preservation of scenic beauty, and perhaps the most basic use, just being there. The Public Trust Doctrine has evolved from preserving the public's rights to use trust lands and waters for commerce, navigation and fishing, to protecting modern uses that are "related to the natural uses peculiar to that resource." This dynamic nature, firmly documented by the courts over the centuries and fundamental to the application of the doctrine, has enabled it to persist for over 1,500 years. Strip away the inherent flexibility of the doctrine to assure public access to, and use of, trust lands, waters and living resources and the doctrine would slowly whither away.
The Conveyance of Public Trust Land As noted, the jus publicum interest in trust lands cannot be conveyed or alienated to private ownership, for the State cannot abdicate its trust responsibilities to the people. The jus privatum interest, however, may be and often is, conveyed into private ownership. There are strict limitations upon the State in order to convey the jus privatum to private ownership. The Legislature must act through legislation to authorize the conveyance. The conveyance must be described in clear and definite language, with all ambiguities construed in favor of the State and against the grantee. The conveyance must primarily further the public interest, with benefits to private parties being secondary or corollary. There must be no substantial impairment of the public interest in the lands and waters remaining. Non-compliance with any of these requirements violates the Public Trust Doctrine, and can render the conveyance void. Courts will strictly scrutinize a conveyance of public trust lands for compliance with all of the above requirements. In addition, if a State legislature later determines that a prior conveyance of trust land has the effect of diminishing or destroying its control of the jus publicum, the conveyance may be lawfully revoked. The majority of states hold themselves immune from losing title of public trust lands by adverse possession, although a handful of states recognize adverse possession against trust lands. The public's trust interests in trust lands and waters can only be terminated in small parcels, usually those necessary for the construction of docks and wharves to further waterborne commerce. The termination must further the public's trust interests, although some courts have accepted the furtherance of any public interest -- regardless of whether it is related to trust lands and waters -- as sufficient to terminate the trust.
The Nature of the Remaining Public Trust Servitude Once the jus privatum interest has been conveyed from the State to private hands, the public's remaining trust rights, collectively known as the public's trust servitude, are usually diminished. The nature of the remaining public trust servitude in privately held trust lands varies from State to State. In one State, the servitude may not include many rights of the public, not even the right to use trust lands solely for recreational purposes. In other states, the bundle of rights held by the public remain so broad, and the corresponding private rights so limited, that the private owner's title has been described as a 'naked fee.' In either case, all of the public's trust rights are dominant to the private rights.
State Exercise of its Public Trust Authority Authority vested in the State through the Public Trust Doctrine is based upon its power over State property, rather than a State's regulatory powers through its sovereign "police powers." Thus, if the lands, waters or living resources are within the scope of the doctrine, then the State can govern and manage them as its own property. This is in sharp contrast to a State regulating a citizen's private property through its police powers. At the same time, whenever a State exercises its public trust authority, it does so immediately adjacent to some of the most expensive real estate in America -- waterfront property. Waterfront property owners hold extremely strong property interests, especially if they also own the jus privatum rights in the adjacent public trust land. Usually a private jus privatum owner of public trust land pays property taxes on the trust lands, lending a certain credence to the perception that he or she has sole possession and control of the property, exclusive of the public. Adding to the confusion, boundary descriptions in deeds and property titles of waterfront property often are silent as to any jus publicum retained by the State, giving the landowner the further expectation that he or she has exclusive rights of possession and use of the land. Boundary descriptions may simply state that the property extends "to the water'1 or even to the "low water mark" or some similar phrase. Waterfront property owners commonly regard their property as extending to where the water is, unaware that the State has a reserved jus publicum interest up to the "ordinary high water mark" -- a boundary line that is often difficult to factually determine. It is also very common for a commercial upland owner, such as a resort or marina owner, to have a strong economic interest in the use of adjacent publicly owned trust lands and waters. Given the strong property interests of private upland owners, coupled with the confusion over the distinction of the jus publicum and jus privatum in trust lands and how the Public Trust Doctrine applies, coastal managers need to be keenly aware that their actions under the doctrine may be met with strong resistance. Claims of "takings" and charges of governmental interference in private property rights can, and should, be expected.
"Takings" Claims and the Public Trust Doctrine A central strength of the Public Trust Doctrine is that it allows the State to manage its trust resources as a property owner, rather than having to exercise either its regulatory police powers or its powers of eminent domain. In other words, most claims that the State has unlawfully "taken'1 private property when it manages its trust properties would be unfounded. This is not to say that "takings" challenges won't occur. Rather, the chances of a private party prevailing against the State on a takings claim are very small, with all of the burden of proof on the private party making the claim. Nonetheless, challenges can be expected. As States exercise their public trust authority, their actions are likely to conflict with the interests of private upland owners. This is especially so where the Public Trust Doctrine has not been enforced over a period of tine and the private upland owners expectations of exclusive possession have grown in the interim. When trust land is wholly publicly owned, it is clear that a private upland owner would have no property interest in that land, except as a member of the general public. Thus, it appears impossible for any action a State takes under its public trust authority on publicly owned trust lands to result in a taking of private property without just compensation. The question becomes more complex, however, in the many instances where the jus privatum interest in certain trust land has been conveyed into private hands. In such a case, if the State's actions are clearly within its public trust authority, the private trust land owner's interest in the trust land are subservient to the jus publicum. Further, the privately held trust land was conveyed subject to the Public Trust Doctrine from the outset and therefore nothing has been taken. As a result, a private owner cannot have any reasonable investment-backed expectations. When a State attempts to govern privately held trust land, either through regulations or statute, in a manner broader than its trust authority, it clearly is subject to a takings claim. For example, in Washington, the state attempted to limit or prohibit uses that could be made of it public trust lands and waters. Upon challenge, the Washington Supreme Court held in part that the regulations limited or prohibited uses of the land that were permissible under the Public Trust Doctrine. To this extent the regulations were more restrictive than the doctrine, and thus constituted a "taking" in violation of the U.S Constitution. This example demonstrates that any action taken by a State under its public trust authority should clearly be within the scope of the Public Trust Doctrine within that State.
Federal Preemption and the Public Trust Doctrine A series of United States Supreme Court cases has held that upon the American Revolution, absolute property in, and dominion and sovereignty over, all lands under navigable waters were held in trust by the Thirteen original States. Further, upon adoption of the United States Constitution, the Thirteen Original States withheld their tidelands and navigable waters from the United States, and did not cede these lands over to the new Federal Government. As a result, coastal State authority over trust lands is plenary, subject only to the powers surrendered to the Federal Government upon ratification of the Constitution of the United States. What powers over State trust lands were surrendered to the Federal Government by the Constitution? First, the Constitution provides that the Constitution, all federal laws and international treaties "shall be the supreme law of the land." State laws that irreconcilably conflict with federal statutes are preempted, in accordance with the Supremacy clause, by the federal statute. There is no clear and distinct formula, however, that is applied by the courts in preemption cases. State law may be allowed to stand under various circumstances. Where a state's historic police powers are at issue, it is presumed that the federal law does not preempt the state law unless Congress clearly manifests this intent in the federal statute. Courts will also carefully scrutinize the federal statute for indications that Congress did not intend federal regulation to be exclusive, or whether federal agencies are required to consult with State authorities and to comply with their regulations. Finally, in the absence of an actual conflict between the State and Federal law, courts have found that there is no preemption. The constitution also provides that Congress has plenary authority "to regulate Commerce with foreign nations, and among the several states." The Commerce Clause permits Congress to exercise extensive authority over the nation's waters, especially over navigation. Despite Congress's unquestioned paramount power over State law in the area of navigation, State regulation of navigation is afforded substantial leeway when there is no directly applicable federal law, no need for a uniform national rule, and no evidence that the State action impedes the free and efficient flow of interstate or foreign commerce. Finally, federally conducted activities may not be subject to a State's public trust authority on the basis of sovereign immunity. The presumption of federal sovereign immunity for federal actions is only overcome by an explicit waiver of such immunity in federal law. Nevertheless, both Congress and the courts have repeatedly made it clear that some degree of State control over federal activities within its borders is not only permitted but often desirable. Long standing public policies recognize that the federal and state governments share responsibility over managing certain resources. Without an express waiver of sovereign immunity, however, a State is greatly limited in exercising direct regulatory control over federal activities.
Asserting the Public Trust Doctrine Through the Coastal Zone Management Act Sections 307(c) (1) and (3) of the Coastal Zone Management Act (CZMA) provide important and substantial authority for the States to require federally conducted and federally permitted projects to comply with a State's public Trust Doctrine. For example, federal agencies planning construction projects in the coastal zone may be required to modify or forego such projects if they adversely affect the public's trust interests. Further, federal agencies may be limited by the public Trust Doctrine if they sell trust lands to private parties. With respect to federally permitted projects, public trust principles may be used to require project modifications or to prohibit the projects altogether if they unacceptably affect the public's trust interests. Thus, Army Corps of Engineers "404" permits, or the Environmental protection Agency's "NPDES" permits may be reviewed by a State in light of the State's Public Trust Doctrine. In order to utilize the consistency provisions of the CZMA for implementing a State's Public Trust Doctrine, however, a State must clearly incorporate its Public Trust Doctrine into the "enforceable policies" of its federally-approved coastal zone management plan. Otherwise, the State's public trust law may either be preempted or severely limited by federal law governing these projects.
The Public Trust Doctrine And Selected Coastal Management Issues 1. Access to public Trust Lands and Waters Based on The public Trust Doctrine It has been recognized by several courts that in order for the Public Trust Doctrine to have substance, the public must have reasonable access to trust lands and waters. "Without some means of access" a New Jersey court has written, "the public right to use the fore shore would be meaningless." With little exception, however, the Public Trust Doctrine grants no right or privilege to the public for perpendicular access over privately held land to reach public trust lands or waters. Most often public rights of perpendicular access across private land are based on theories of custom, implied dedication, prescription, public easement, or as a condition for either a shoreland development permit, or a lease of State trust lands. Rarely is perpendicular access based on the Public Trust Doctrine. A few states do, however, have constitutional provisions that in effect codify the Public Trust Doctrine and operate to provide the public with certain perpendicular access rights over private land. In all States, the Public Trust Doctrine assures the public some right of lateral access along shorelands between the ordinary high and low water lines. For the most part, the public's lateral access includes recreational use of the shorelands. Maine and Massachusetts, however, do not recognize the public's right to use the tidelands for solely recreational purposes. A limited but growing number of states are finding that the public's full exercise and enjoyment of their public trust rights requires limited access to the "dry sand" beach immediately above the ordinary high water line. The extent of the public's right to use the privately owned dry sand beach may take one of two forms: the right to cross in order to gain access to the trust shorelands below mean high tide line, or the right to sunbathe and generally pursue recreational activities on the dry sand beach. New Jersey case law has clearly articulated the public trust necessity, though not the right, to use the dry sand area. "To say that the public trust doctrine entitles the public to swim in the ocean and to use the foreshore in connection therewith without assuring the public of a feasible access route would seriously impinge, if not effectively eliminate, the rights of the public trust doctrine." However, "[This does not mean the public has an unrestricted right to cross at will over any and all property bordering on the common property. The public interest is satisfied so long as there is reasonable access to the sea." The privately owned dry sand beach in New Jersey may also be subject to the public's right to sunbathe and generally enjoy recreational activities. "Reasonable enjoyment of the foreshore and the sea cannot be realized unless some enjoyment of the dry sand area is also allowed." Thus, "where use of dry sand is essential or reasonably necessary for enjoyment of the ocean, the doctrine warrants the public's use of the upland dry sand area subject to an accommodation of the interests of the owner." 2. Private Docks and Wharves Waterfront property owners often assume that their property's location entitles them to special rights to the adjacent shorelands and water. Over the centuries, both the common law and legislation have granted or upheld their right to build private docks and wharves on abutting public trust land to gain access to the navigable waters. In general, courts have tended to uphold such rights to the extent that they promote some public purpose without substantially impairing the public's interest in or use of trust lands. As noted above, all of the public's trust rights are dominant to the private rights, such as any riparian or littoral "rights." Nonetheless, the traditional common law right to wharf out does not, in the absence of a statute to the contrary, require prior state approval. This "right" to wharf out is really a privilege, however, in that the right is merely implied from the state, and exists only so long as the State so permits. In the event of a conflict between the construction or use of a private dock or wharf and the public's trust interests, a State can either order the removal of the dock or wharf or restrict the riparian's use of it. Either approach presents the coastal manager with potential "takings" claims, however. A state can best carry out its public trust responsibilities by affirmatively regulating docks and wharves through legislation. By statute, a state could require an express grant or other authorization before waterfront property owners can erect new docks or wharves. Once the State regulates the construction and use of docks and wharves through legislation, a waterfront owner has no right to compensation for limitations or prohibitions placed on his docks or wharves. For those waterfront owners with docks and wharves existing prior to any legislation, the statute could grant automatic leases. This would in effect "grandfather" in all existing docks and wharves, but allow the state future control over them. "Dockominiums" are a special category of private docks and wharves. A dockominium is a private dock or slip space which an individual purportedly owns under a condominium-type ownership arrangement, rather than leases from the State. This private ownership of public trust lands and waters can terminate all public rights therein if granted without proper conditions. The private and exclusive nature of dockominiums, where trust land is conveyed by the state legislature to private hands without furthering any trust interest, violates the Public Trust Doctrine. Nor should any conveyance of a property interest in trust lands to private ownership be unconditionally irrevocable.
3. Tidelands Oil and Gas Development The public Trust Doctrine has been applied in several states to regulate the exploration, development and production of oil and gas found on public trust lands. The power of a state to convey leaseholds in trust lands for oil and gas production has been confirmed. At the same time, these conveyances have been held to be nothing more than permission for such persons to explore or produce the oil and gas resource, while remaining subject to the public's continued trust rights to use the area in accordance with the Public Trust Doctrine in that State. The production of oil and gas from State trust lands has been found to further the public's trust interests by promoting both commerce and navigation, and therefore is a proper use of public trust land. Revenue flowing to the State from oil and gas production is often partly or fully appropriated to study, preserve and manage coastal resources. Such funds clearly provide a public benefit for the public's trust resources.
4. Aquaculture Fish are held in trust by the State for the public, and the State is obligated to preserve and protect this trust. Regulations governing the artificial cultivation of fish and shellfish are clearly within the scope of the public Trust Doctrine, and in fact should incorporate public trust principles. In the issuance of leases or permits for aguaculture, many states include provisions that the aquaculture operation will not interfere with other public uses of the area, such as fishing, lobstering, shellfishing, bathing or boating. Such express limitations on the operations are encouraged to clearly inform all parties that the aquaculture operation is subject to the State's Public Trust Doctrine. Limitations have been placed on aquaculture, such as artificial oyster propagation, in order to protect naturally occurring marine species. For example, private shellfish aquaculture operations often are not allowed on public trust lands where natural shellfish beds occur. The issuance of leaseholds or permits for aguaculture becomes more problematical when the trust land is privately owned. In this case, the State will be in the position of asserting that aquaculture is one of the public trust uses that, like navigation, commerce and fishing, was reserved by the State when the conveyance was made. In other words, the State must assert that aquaculture is part of the jus publicum interest reserved by the State, and was not included in the jus privatum conveyance to the private trust land owner. If the aguaculture leaseholder is different from the private trust landowner, questions will naturally arise as to how the rights of the two parties compare. Although it is broadly held that the public's jus publicum rights are superior to any jus privatum rights, it has been held in Massachusetts that a license to shellfish must not impair the private rights of the landowner to moor his boat in the area covered by the license, even if at low tide the boat would rest on, and therefore damage, the shellfish beds. 5. Environmental Protection Historically, the common law rights of the public in trust lands and waters were related to navigation, commerce and fishing. Recently, however, several states have recognized that in order for the public to exercise their right of fishing, there must be fish. That is, there must be a sustaining environment within which the fish can live. Thus, the step from managing trust fisheries to preserving the ecological integrity of trust waters is not such a large one... As a result, the Public Trust Doctrine serves as a solid basis for environmental protection legislation or regulations. Some State courts have upheld the regulation, and prohibition, of certain activities in order to protect water quality in accordance with the Public Trust Doctrine. A limitation on the diversion of water from tributaries feeding into navigable trust waters, which would result in a deterioration of trust water quality, as well as a moratorium on shorefront building permits have both been upheld by the courts based on public trust grounds. A major problem confronting coastal resource managers is the deterioration of water quality due to non-point pollution resulting from upland land use practices. To date, no court has upheld an expansion of the doctrine as a basis for regulating land use above the ordinary high water mark. Even as a basis for such regulation below the high water mark, applying the public trust doctrine to water quality protection may be challenged in court. While water quality regulations would serve the public interest in one respect, they are likely to restrict other uses which the doctrine protects. For this reason, a coastal resource management agency would be in a much stronger position to condition or reject permit applications in order to preserve water quality if there was legislation incorporating public trust principles under which the manager could act.
6. Waterfront, Harbor and Marina Development Urban harbors and waterfronts have historically been the center of commercial activity, providing for widespread employment and generating tax revenues for State and local governments. Until recently, however, harbors and waterfronts have seen the economic and physical decline and decay resulting from a similar economic decline in activities protected by the Public Trust Doctrine, namely commercial and recreational fishing, fish processing, as well as ship maintenance and repair. Over time many waterfronts have become the least attractive areas of communities, marked by deteriorating wharves and warehouses, vacant buildings, incinerators, power plants and other facilities deemed too undesirable t6 go anywhere else. The clear trend in these economically decayed waterfront areas is for the historical and traditional water-dependent uses to be replaced by non-water dependent facilities -- those that do not need a waterfront location but seek to maximize their value with water vistas and the general maritime ambience. This trend provides a vivid illustration of the dilemmas and the extraordinarily difficult balancing process facing those charged with managing public trust lands and resources. In making the difficult decisions about how to allocate the limited waterfront resources among competing uses, coastal resource managers can make effective use of the Public Trust Doctrine because it affords them a legal basis for preferring water dependent uses and preventing undue encroachment of non-water dependent and private development near the water's edge without running afoul of takings challenges from upland property owners. Marinas inherently symbolize these dilemmas. They are an omnipresent feature of most harbors, and serve a solid public trust purpose by serving the need for recreational boating facilities and furthering both commerce and navigation. They are clearly water-dependent uses. At the same time, their construction and operation can adversely affect public navigation, fisheries, water quality and ecologically sensitive areas. Moreover, their exclusive use of limited shorespace may lead to restricting rather than expanding public access to the trust waters; Tremendous demand to build marinas also raises the necessity of considering the cumulative impact of their construction and operation. The scheme of permitting marinas that most accommodates the Public Trust Doctrine is to lease the trust lands to the marina owner for a specified length of time at a reasonable lease rater provide for sufficient public access and use (for a reasonable fee) while the State appropriates a significant portion of the lease revenues towards coastal resource management.
Conclusion The Public Trust Doctrine, although based on long-standing traditional uses and principles, offers a coastal resource manager a powerful tool in addition to a State's police power. The doctrine places the coastal manager in a strong position of requiring all uses of trust lands and waters to be water dependent. Further, although much trust land is privately owned, these private rights in trust land are for the great part subject to the dominant rights of the public to use these same lands for a wide variety of recognized uses. The Public Trust Doctrine is tremendously versatile. It can be used to address problems as diverse as public access to coastal areas, oil and gas production, and environmental quality. For example, negotiations on a permit application for a marina development, the promulgation of regulations to improve water quality, statutory restrictions on conveyances of trust lands to private ownership, or assessing leases and royalties on leasehold or mineral development, can all be based upon the Public Trust Doctrine. In short, the Public Trust Doctrine is applicable whenever navigable waters or the lands beneath are altered, developed, conveyed, or otherwise managed or preserved. It applies whether the trust lands are publicly or privately owned. The doctrine articulates not only the public rights in these lands and waters. It also sets limitations on the States, the public, and private owners, as well as establishing duties and responsibilities of the States when managing these public trust assets. In addition, exercising a State's public trust authority is to exercise power over a State's own property. This places the coastal resource manager in a well protected position from successful "takings" arguments. The State and Federal case law concerning the "taking" of private property by a government without "just compensation" stems almost solely from the exercise of State police power; i.e. when the State attempts to regulate the use of someone else's property. By exercising its public trust authority, however, a State is regulating its own property. Nearly all of the "takings" case law is thus irrelevant to this situation. In the final analysis, the Public Trust Doctrine is a valuable legal legacy from Roman emperors and English kings to the American public -- the right to use and enjoy America's trust lands, waters and resources for a wide variety of legally protected public uses. This legal doctrine places over 191,000 square miles of lands and waters and the aquatic life therein, plus the 98,664 miles of shoreland below the ordinary high water line, in trust for the benefit of the public. As the publics trustee of these assets, each State is an important steward over what Roman Emperor Justinian claimed by the law of nature to be common to all mankind.
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be strongly reinforced to weather the tremendous forces of wind, wave and ice placed upon them. Most permanent structures built on trust lands further navigation. Trust lands are generally useful only for public purposes. 
