Over My Waders

The Public Trust Doctrine and Riverine Rights

by Reed F. Curry

"By the law of nature these things are common to all mankind, the air, running water, the sea and consequently the shores of the sea." (Institutes of Justinian)

Perhaps no element of our law, both federal and state, has such a venerable history as that of the "Public Trust Doctrine". The Public Trust Doctrine is, essentially, an element of common law, though it has found its way into the Constitutions of numerous states. The essence of the doctrine is the legal right of the public to use certain lands and waters. The rights of the public are vested in each state as owner and trustee of Trust lands, with the protection of those rights remaining in Federal hands. Generally, tidewaters to their farthest reach, tidelands, navigable waters, and permanently submerged lands, including those extending lakeward or seaward to the limit of state ownership, are subject to the Public Trust Doctrine. Black's Law Dictionary defines the public trust doctrine as that which:

Provides that submerged and submersible lands are preserved for public use in navigation, fishing, and recreation and the state, as trustee for the people, bears responsibility of preserving and protecting the right of the public to the use of the these lands and the waters above them for those purposes.

The public trust doctrine has its roots in the "Institutes of Justinian," the body of Roman civil law that was put together by a commission of ten legal experts under the direction of the Roman Emperor Justinian in 530 A.D. England in adopting much of the Roman law recognized waters and shores as public in nature. As commerce became more important, so did the public's interest in the shores. For example, the Magna Carta in Clause 33 presages later environmental laws: "(33) All fish-weirs shall be removed from the Thames, the Medway, and throughout the whole of England, except on the sea coast". Henry Bracton's De Legibus et Consuetudinibus Angliae ("The Laws and Customs of England") written in 1250 cites the common law regarding rivers as "all rivers and ports are public, hence, the right of fishing in a port or in rivers is common. The use of the banks also is as public as the rivers." As the Public Trust Doctrine was eventually interpreted in England, the king actually owned public lands, but held them in trust for the public. Thus the notion of "sovereign" property ("Crown property" in Canada) was born, and with sovereignty under the Public Trust Doctrine came the inescapable duty of state stewardship, a concept that survives today in all manifestations of the doctrine - the governing bodies, both federal and state, are stewards of our public lands and waters.

Through colonial charters from the Kings of England, the law of public shore lands and navigable waters came to America. The waterways were so vital for commerce and sustenance that the original thirteen states kept the shore lands and navigable waterways under their control. As the rest of the states joined the Union, they did so on equal footing with the original thirteen.

As an example of the public trust doctrine codified, Article IX, Section 1 of the Wisconsin Constitution provides that

...the river Mississippi and the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the state as to the citizens of the United States...

The Scope of the Public Trust Doctrine

Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892) was the landmark case in establishing the scope of the public trust doctrine in America. The issue was whether the Illinois legislature could grant nearly the entire waterfront area of Chicago to the Illinois Central Railroad. The Supreme Court of the United States held that Illinois had title to the land underneath the navigable waters of Lake Michigan and that it held this title in trust for the public's use. Illinois was not allowed to convey this land if the effect would be to destroy the public's right of navigation and fishing. However, the Court also held that Illinois could convey parcels of trust land to private individuals so long as the overall effect was to improve the public's ability to exercise its trust rights. The conveyance to Illinois Central did not meet this criterion and was therefore void.

Fairly recently Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988) posed the question whether Phillips had title to land beneath eleven drainage streams, tributaries that flowed into the Gulf of Mexico. The streams were not navigable and Phillips claimed that its title could be traced back to a pre-statehood grant. The Supreme Court expanded the scope of the public trust doctrine by holding that the doctrine applied to all water influenced by the ocean's tide, regardless of whether it was navigable or part of a navigable body of water. The Court said that Mississippi has title to the land under the tributaries since the time of its entrance into the Union.

The Concept of Private Property

No other constitutional right has the immediacy as the right of private property. From the derelict living in a cardboard box, to a suburbanite, everyone has opinions regarding his property rights. When those rights come in conflict with the public weal, the timorous joins the vociferous in defense of private property.

Recently, the "Californication" of the eastern slopes of the Rockies has created a wealth of law suits over trespass and the public trust. Affluent "outsiders" looking for a quiet refuge have purchased ranches and ranchettes from Idaho to New Mexico. Often, the properties contain trout streams. Since the proprietor may have miles of land surface on both banks of the stream, he, quite understandably, may feel that unauthorized entry upon "his" stream is trespass. Each instance of criminal trespass prosecuted seems to have a different spin as regards the laws of western states, yet, overall, the Public Trust doctrine as a limb of federal law has held sway. Some interesting recent federal decisions are the following:

In 1982 in Loving v. Alexander, 548 F.Supp. 1079 (W.D.Va. 1982), aff'd, 745 F.2d 861 (4th Cir. 1984), several riparian landowners asked the court to declare the Jackson River closed to canoeists, or, if it were to remain open to canoeing, to pay them for the "taking" of their property rights, since they owned the bed of the river under state law. The federal court confirmed that they do own the bed of that river, but also confirmed the public right to canoe on such rivers. The court overruled three previous state court decisions to the contrary, including a state supreme court decision, holding that the public's right to canoe on such rivers is a matter of federal law, not state law, and that allowing the public to canoe on rivers is not a "taking." The court noted that the Jackson River is "narrow, crooked, rocky, and shallow," with a depth of "about ten inches to six feet," an average gradient of 21 feet per mile, an average flow of 486 cubic feet per second, and a low flow of less than one cubic foot per second. These same characteristics are typical of rivers in Colorado used by canoeists, kayakers, and rafters.

In 1987 in Goodman v. City of Crystal River, , 669 F.Supp. 394 (M.D.Fla. 1987) the owner of the land under and around a spring-fed pond sought to prevent the public from canoeing and kayaking into the pond from an adjacent river, passing through a narrow, shallow channel. He said this boating was trespassing and a "taking of his property for public use without just compensation." He had stretched a cable across the mouth of the channel to block boaters. The court agreed that he owned the bed and banks of the pond under state law, but held that that the public's right to canoe and kayak on such waters is a matter of federal law, not state law, and that allowing canoeing and kayaking is not a "taking."

In 1997 in Atlanta School of Kayaking v. Douglasville County Water, 981 F.Supp. 1469 (N.D.Ga. 1997) a county government agency sought to prevent the public from canoeing and kayaking the Dog River through private land, then taking out at a reservoir. The government agency claimed that there is not a public right to boat on such small, shallow rivers, noting that canoeists and kayakers describe the Dog River as a whitewater river that is enjoyable "only after rainfall, and then only for a brief period of time," and that even American Whitewater magazine said that the river "is generally considered a high water run that is runnable on an infrequent basis at best." But the court held that "the answers to these questions are determined by federal law," and held that the public does indeed have the right to canoe and kayak on such rivers under federal law. (National Rivers: Colorado River Law, Online, http://www.nationalrivers.org/states/co-law-boat-rights.htm , 03/16/2004)

I have seen the conflict between private landowner and public river user from both sides. Sitting on the deck of a friend's camp on the Ausable river one sunny afternoon, I watched a seemingly endless parade of aluminum canoes, often ineptly paddled by loud drunken revelers. Since there are three canoe liveries in Grayling, each with 200+ canoes, the traffic on the pure waters of the Ausable on a weekend can be best described as a clanging pandemonium. Were I a landowner on the river, I would resent the boorish intrusion of these floating bacchanals. On the other hand, as a fisherman I greatly enjoy wading the sandy-bottomed river, quietly casting to the elusive brown trout. I realize that I, too, am intruding on the viewscape of riverfront property owners - sometimes, late at night, inadvertently waking their dogs to howl and bark at the stranger in the river.

What is the resolution of this problem? How can we as citizens continue to enjoy the waters and shores that are our public inheritance and at the same time savor the privacy that we assume comes with land ownership? Frankly, there is no solution that can give the owners of "private property" their peace without stealing from the public trust. Perhaps education of the landowners will suffice, though I strongly doubt it. Even if it was made clear to all owners of shorefront properties that no "taking" is occurring, that the right to enjoyment of the waters is inherently vested in all citizens, it would still be a bitter pill to swallow.

All content copyright Reed Curry © 2006.
Cartoon by Walter Young © 1961, used by permission.