Tag: Public Trust Tuesday

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

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


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

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

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

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

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

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

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

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

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

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


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

[2] Id.

[3] Id.

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

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

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

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

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

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

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


Interview with Chris Doyal of the Grand Traverse Bay Underwater Preserve Council

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Michigan is the 22nd largest state if you consider only the land within its borders that is above water.  But if you add its submerged lands, it’s the 11th largest. Much of the approximately 40,000 square miles of Michigan under water consists of Great Lakes submerged lands, which belong to the public and are managed by the state as trustee.

 A 1980 state law authorizes the creation of underwater preserves in these submerged lands.  Michigan’s thirteen underwater preserves include approximately 7,200 square miles of Great Lakes bottomland – an area larger than the states of Connecticut and Rhode Island combined. The underwater preserves protect some of the region’s most sensitive underwater resources.

The legislation imposes stiff penalties for disturbing shipwrecks and their artifacts. It is a felony to remove or disturb artifacts in Michigan’s Great Lakes.

 Divers were a principal force in the drafting of the 1980 law and today provide voluntary support to the preserve system. Supporters of the Grand Traverse Bay Underwater Preserve are becoming active in exploring and mapping the 295-square mile preserve. We interviewed Chris Doyal, president of the Grand Traverse Bay Underwater Preserve Council, Inc., to find out what the group is up to.


A carriage that fell through ice onto the floor of Grand Traverse Bay in the early 1900s.

How large is the group and how diverse the backgrounds?

We are currently in the process of reforming. The preserve was essentially defunct for a few years. We have reformed and now have a board of directors comprised of six people. All of our board members are local divers.

 

How did you personally get involved?

I was contacted soon after the preserve was formed in 2007. My expertise is in underwater photography, and I was asked to photograph the shipwrecks.

 

How can someone join?

We currently aren’t a group that has an official membership. We may head that direction in the future. People usually approach us to share additional historical information about the various sites within the preserve. Local knowledge is the best.

 

Is there a newsletter/regular email?

No, but we maintain a Facebook page and a website.

 

What are some of the more noteworthy discoveries the GTBUP group has made?

Our primary goal has been to do an inventory of the known shipwrecks within the preserve. If we come across something new, that’s great. But we still have a lot of work to do documenting the known sites. We’re currently working with the Grand Traverse Lighthouse Museum to locate and document shipwrecks around Northport.

 

What is your partnership with MDNR/MDEQ like?

Since we don’t excavate or disturb sites in any way, we’ve not had any contact with them. However, we are looking into the possibility of installing buoys on some of the sites and that will likely need their support.

 

In addition to shipwrecks, are their environmental or aboriginal features of interest?

Absolutely. There are many important historical sites within the preserve. For example, Rev. Peter Dougherty’s pier remains are still easily seen from a boat. This was constructed around 1839. There are also several native American settlements within the preserve.

 

What is the preserve’s greatest need — e.g., awareness, funding, legislation & policy, protection?

It’s really too soon to tell what our needs will be. The restructured preserve is still in the process of defining its focus for the future.

 

Do you think people respect that these submerged lands are owned by the public?

Yes, but more education is always needed. The lands are managed by the state but owned by all of us. People really need to know how fragile these sites are.

“Look but don’t touch” certainly applies here.

 

 Whom should interested readers contact?

The contact section on the website is the best way to connect with us.


Running Michigan’s Water Into the Ground

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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, these 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. 

Last week, Michigan Radio broadcast a two-part series on Michigan’s groundwater. They found that there are more than 2,000 places around Michigan where, instead of cleaning up contaminated groundwater, the state bars people from using it or even touching the soil — and this is an extremely conservative estimate.

How did we get to this point? Groundwater is profoundly important to our state. Michigan has more private drinking water wells than any other state. About 45% of the state’s population depends on groundwater as its drinking water source. Manufacturing industries and agriculture depend heavily on groundwater. As much as 42% of the water in the Great Lakes originates from groundwater.
 
And yet state policy treats it as disposable.
 
Michigan water quality protections in theory already extend to groundwater. As defined in state statute, “Waters of the state” means groundwaters, lakes, rivers, and streams and all other watercourses and waters, including the Great Lakes within Michigan’s boundaries.
 
Michigan’s Natural Resources and Environmental Protection Act (NREPA), Part 327, declares that groundwater and surface water are one single hydrologic system. Groundwater can recharge surface water, and surface water on occasion loses water to recharge groundwater. The waters of the state should be considered one resource for any groundwater protection regulation or standard.
 

Dave Dempsey, FLOW Senior Advisor

Part 327 recognizes water in the Great Lakes basin and Michigan is held in trust for the benefit of citizens. This principle should govern every water statute, and any statute regulating activities that protect groundwater, to assure that contaminants do not impair the public trust in connected wetlands, creeks, streams, and lakes, and Great Lakes.

 
In short, the public trust doctrine applies to groundwater, part of the larger hydrologic system. FLOW will be working to affirm this — and to make sure these vital waters are protected.

Common Water, Public Health, and the Common Good: Just What Does the Term “Public Trust” Mean Anyway?

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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, these 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.


The words “public trust” appear in many news and social media articles these days, and the meanings of the phrase often overlap as they should.

First, for those who follow FLOW’s mission and work or the news about the world water crisis, there is the public trust in our bodies of water, like our lakes and streams, or the groundwater that replenishes them. This is known as the public trust doctrine, an ancient principle in our common law that imposes an affirmative duty on government officials to protect the paramount rights of citizens concerning fishing, aquatic wildlife and habitat, boating, swimming, and access to safe and affordable drinking water. A breach of this public trust duty is legally enforceable when government fails to act or acts in a way that interferes with these rights or impairs these waters and uses. Government cannot sell off the bottomlands and waters of the Great Lakes, for instance, for a purely private purpose or gain. Government can’t authorize a landowner to fill in the bottomlands of a lake for a permanent private deck, because it would exclude the right of the public to the use of the surface of the lake for these protected public trust rights and uses. A private cabin owner can’t fence a stream and block fly fishers from wading and casting for fish. Cities can’t divert a tributary stream that impairs a downstream navigable lake. A federal judge in Oregon recently ruled that the public trust in bodies of water can force the government from dragging its feet to implement the reduction of carbon dioxide in our atmosphere, which contributes to global warming, and extreme weather that interferes with or harms citizens’ right to drinking water, fishing, swimming, and boating.

Second, public trust refers to a public official’s conflict of interest or self-dealing, or breach of governmental office. This most often means an official in her or his official capacity uses that capacity to help approve a business contract for a partner or family member. Or, it might mean an official takes a bribe to vote for a lobbyist’s pet project or to influence an agency to grant a permit for a land development, mall, or perhaps a new urban water infrastructure deal that forces local governments to go along with privatizing the water services system, because the city can’t raise the taxes or collect enough user fees to fix a broken system or find a new water source.

Third, there have been charges of breach of public trust over state and federal agencies’ callous inaction or deliberate indifference toward the health and well-being of citizens– that is, the failure of government to fulfill its duty to promote the common good and public health, safety, and welfare. This could well encompass what happened in the Flint water tragedy, where officials rushing to transfer Flint’s water supply from the established Detroit system to a local water plant that withdrew water from a seriously polluted river. Or, perhaps, it would cover the Detroit water shutoff of tens of thousands of poor home occupants who cannot afford a $200 a month water bill.

All of these charges of breach of public trust have one common denominator: the breach of a legally enforceable duty or ethical expectation and duty to protect the common good in public land, water, health, and the general welfare. Regrettably, with increasing frequency, these breaches of public trust overlap. The water in Detroit is withdrawn from the Detroit River and Lake Huron, both public trust bodies of water. The State forced Detroit to suspend and transfer its power to an emergency manager appointed by the governor to fix the city’s bankruptcy. The emergency manager began getting rid of deadbeat customers by cutting them off from the water services, because they didn’t pay. Within a year, the once highly regarded Detroit regional water system ended up in the hands of a government created Great Lakes Water Authority, controlled by the suburbs, so Detroit could exit bankruptcy. In Flint, inaction or deliberate indifference by state and federal officials failed to prevent continued exposure to lead in the drinking water when another emergency manager, appointed to take charge of the city, hurried the switch to the Flint River. The same inaction has led to the continuing massive algal blooms that have ravaged western Lake Erie. Here, the breach of the traditional public trust duty toward protecting the destruction of fishing, boating, swimming, and recreation in Lake Erie soon led to the exposure of more than 400,000 residents served by Toledo’s public water system, a deliberate refusal to take action against influential corporate farming interests to reduce phosphorus loading from fertilizer runoff exacerbated by extreme weather caused by climate change.

All three of these meanings of public trust point to one thing: more and more, governmental officials are fixated on protecting and promoting profit, gain, and private interests over the common good of the public– whether breach of public trust in our common waters, a breach of a duty and charge to protect the health of citizens or peddling and using influence to ignore doing the right thing in favor of a personal favor. 

Jim Olson, President and Founder

Perhaps, upholding the public trust in our water, health, ethics, and the common good is the litmus test for the coming decade for anyone elected or appointed for public office. Ultimately, it is up to citizens to see, claim, and enforce the public trust for the good of all.  It might even make for better business, jobs, economy, and quality of life that will be more lasting.


Public Trust Tuesday: Private Fish Farms in Public Waters

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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.


Lawmakers in Michigan should learn from the experience in Washington state, where the legislature just voted to ban Atlantic salmon fish farming in Puget Sound, and expressly prohibit factory fish farms in the Great Lakes and its tributaries before corporate proposals to privatize and farm Michigan-controlled waters take root.

As FLOW has outlined in its recent Great Lakes fish farming issue brief, the lessons from across the nation and globe are clear:

  • Non-native fish in floating cages or net-pens occupying public waters inevitably escape and compete with wild fish for food, spread disease, and threaten genetic diversity.
  • Private fish farms in public waterways undermine public access, recreation, drinking water supplies, sport fishing, and jobs.
  • Factory fish farming concentrates and releases untreated waste, excess nutrients, and antibiotics and other pharmaceuticals, spurring outbreaks of disease and algae growth.

The bottom line is that it’s the government’s perpetual duty under public trust common law to protect the Great Lakes and its tributaries for the public’s current and future benefit, including for drinking, boating, fishing, swimming, sustenance, and navigation for the enjoyment of current and future generations. Ongoing efforts by the state of Michigan, aided by Michigan State University Extension, to justify and minimize – rather than prohibit – private farming of fish in public waters are completely misguided.

It’s time for Michigan lawmakers to follow the lead of Senator Rick Jones, R-Grand Ledge, and Rep. Gary Howell, R-North Branch, who have introduced legislation to ban open-water fish farms in Michigan’s Great Lakes waters to protect “our clean water, our water-based economy, and our outdoor way of life.”

Click here to learn more about FLOW’s program to challenge aquaculture in the Great Lakes.


Once More: Line 5 and the Public Trust

byzantine-empire-public-land.-trusts

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


Perhaps if they hear it often enough, they’ll act.

Michigan’s Pipeline Safety Advisory Board, established by Governor Snyder in September 2015, heard Monday from FLOW Executive Director Liz Kirkwood about the state’s public trust responsibilities.

It was FLOW that identified these responsibilities as the debate over unsafe Enbridge Line 5 at the Straits of Mackinac intensified several years ago.  Simply put, the public owns the lakebed under the Straits that Line 5 crosses – and state government, as the trustee, has the authority and the obligation to assure that any party granted an easement to use the public’s lakebed is not compromising the public uses protected by the trust.  The Legislature passed a law in 1953 granting Enbridge an easement across the Straits – subject to the public trust.

Enbridge has clearly fallen short of that standard with shoddy maintenance, concealment of damaging information and a track record of failure, culminating in the mammoth spill into the Kalamazoo River watershed in 2010. 

FLOW’s message Monday – Enbridge can comply with public trust interests and state law only if the state compels it to submit an application for the entire massive overhaul of Line 5 it seeks to undertake, and only with simultaneous consideration of feasible and prudent alternatives – including using other means to deliver the petroleum currently served up by Line 5.

Here are a few of Liz’s comments from Monday: 

“We are approaching the hour of decision on the fate of Line 5.  This process has been an epic example of how not to protect a world-class resource.  Transparency, corporate integrity and the rule of law have all been casualties. But there is one last chance to make it right.

“Enbridge has never applied for and DEQ has never comprehensively reviewed, considered, or authorized the new design with 128 screw anchors elevating the Line 5 pipelines off the lakebed.  This new design was not contemplated in 1953.  Moreover, the Great Lakes Submerged Lands Act does not authorize ‘activity’ permits that actually constitute a new design, permanent structures, and improvements on bottomlands or suspended in water areas above the bottomlands; rather, a new application is required in conformance with the public trust.

“The Great Lakes are held in trust by the State of Michigan as public trustee for the benefit of its citizens. The 1953 easement with Enbridge was issued fully subject to the public trust, and the U.S. Supreme Court has held states have the power to resume the trust whenever the State judges best.  The state owes Enbridge nothing.  Enbridge owes the people of Michigan the respect they deserve by ending its efforts to skirt statutes and the public trust.”


Public Trust Tuesday:  A Big Win for the Public Trust

byzantine-empire-public-land.-trusts

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


Score a big win for the public trust doctrine.

In what can be termed literally a landmark decision, the Indiana Supreme Court on February 14 ruled that the state’s public trust rights to the Lake Michigan shore extend to the ordinary high-water mark.

FLOW founder Jim Olson called the decision “exciting” and said it was an even bigger affirmation of the public trust doctrine than a 2005 Michigan Supreme Court ruling because it carefully explained the basis of sovereign public trust ownership by the state.

The ruling came in a case brought by landowners who sued the Indiana Department of Natural Resources, seeking exclusive access to all land up to the water’s edge. Public trust advocates argued that Indiana received land below the ordinary high-water mark at statehood under the public trust doctrine, and that an act of the legislature is required to deed such land to a private party.

But Olson said the Court should also have articulated a list of traditional and incidental public trust uses, like swimming, bathing, and staging, sitting or other uses that are incidental and necessary to those traditional uses that are protected by the public trust doctrine. “In finding ‘at a minimum’ walking the beach below the ordinary high-water mark is protected, the Court exercised restraint and left the scope of public trust uses unclear until enumerated by the legislature,” he said.

“The public trust is a dynamic and flexible doctrine, dependent on changing public needs and uses of public trust lands or waters,” Olson said. “Certainly, walking and fishing were predominant in earlier centuries, but the use of our public shores and beaches below the ordinary high-water mark for access and their public use and enjoyment has encompassed swimming, canoeing, kayaking, surfing, kite boarding, and similar uses. These uses for safety and convenience necessarily include staging, sitting, and even sunbathing incident to those traditionally protected uses.

The “public trust doctrine is a court-made doctrine common law doctrine, so the Court was well within its traditional judicial powers to enumerate those uses rather than defer to the legislature,” he added.


Public Trust Tuesday: Shutting Down Line 5

byzantine-empire-public-land.-trusts

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


The public trust doctrine is at the heart of FLOW’s efforts to shut down the antiquated Line 5 oil and gas pipelines that span the lakebed at the Straits of Mackinac.  Enbridge, the pipeline owner and operator, has access to the lakebed only because the State of Michigan provided an easement to the company’s predecessor in 1953, subject to the requirements of the public trust doctrine.

Under the terms of that easement, the State, acting as a trustee of the public interest in the Great Lakes, cannot allow impairment of public uses of the affected Great Lakes waters and submerged land.  Further, the State authorized the easement subject to Enbridge exercising “the due care of a reasonably prudent person for the safety and welfare of all persons and of all public and private property.”  Multiple disclosures by Enbridge of shoddy stewardship of Line 5 have demonstrated the lack of due care.

Last week, FLOW submitted to the State six pages of comments and additional exhibits making the case that Enbridge’s patchwork approach to maintaining Line 5 has fallen well short of that standard.  Further, FLOW argued that the major changes in structural support for the pipeline contemplated by Enbridge constitute a new project for the purposes of review by the state.  This requires the State to insist that Enbridge demonstrate the absence of feasible and prudent alternatives to the proposed pipeline support changes – including alternate routes for the transport of oil and gas.

FLOW concluded, “the burden rests with Enbridge – not the State of Michigan or its citizens – to establish that there are no unacceptable risks or likely effects to waters, fishing, navigation, commerce, and public and private uses, and that no feasible and prudent alternatives to Line 5 based on existing or feasible capacity of overall pipeline system in the Great Lakes; the required scope of this showing of no alternatives includes determination of whether existing or improved pipeline infrastructure within the Enbridge system into and out of Michigan are a feasible and prudent alternative.”

You can read the full comment letter here.


A Holistic View of the Public Trust Doctrine

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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 founder, Jim Olson.


This winter marks the fourth year of the water policy course at our Water Studies Institute, a two, four, and post-graduate degree program at Northwestern Michigan College. Each year is a cycle, with fresh information, insights and ideas. The approach to this new course is to explore and view water and the risks to water – locally or globally – holistically; that is, to see human behavior and risks in the context of the earth’s water cycle.  The water cycle consists of several arcs that make up the whole– precipitation, runoff, and percolation into and through soil to groundwater, groundwater flow to seeps, wetlands, springs, creeks, streams, lakes, rivers, oceans, evaporation, hydrosphere, condensation, and full cycle to precipitation. If we understand the relationship between human and natural effects and impacts on our hydrological cycle – our water – we can begin to find solutions to the threats to life, earth, people, and communities.

Water runs through every part of our life on this earth. What we do through impact on or use of water affects every arc of the water cycle. If pollutants discharge to groundwater, the groundwater transports the pollutants, like nitrates from fertilizers or pesticides, to streams or lakes, and evaporation lifts some toxic chemicals from pesticides into the atmosphere, then they fall back to earth and to our lakes, streams, and percolate into groundwater somewhere else. Several decades ago, a carcinogen known as toxaphene used on cotton crops in the southeastern U.S. was found on Isle Royale in Lake Superior. PCBs used by the electrical utility industry as a heat retardant in transformers hundreds of miles from where they were used. These chemicals show up in fish, other wildlife, and humans.

As previous public trust articles in this column have artfully noted, our navigable lakes and streams, including our inland seas like the Great Lakes, are owned by each state in a public trust for the benefit of citizens to protect our public rights in these public trust waters for navigation, fishing, swimming, boating, drinking water, and essential sustenance. Under the principles of this public trust doctrine, no one, including our government as trustee has a right to measurably impair or subordinate these preferred public trust uses; nor can government allow another person to privatize these public rights and uses for private gain. If a member of the public wants to fish or canoe in a public trust stream, private landowners along the stream enjoy their shore rights as private landowners, but they cannot interfere with these public uses; nor could a landowner pollute these public waters to the point it impairs these public uses or public health.

In the 1980s, a Wisconsin Supreme Court decision in Just v Marinette County held that wetlands could not be filled or dredged if the activity impaired public trust uses and aquatic resources in an adjacent stream. It was understood that wetlands and lakes or streams were arcs of a whole that were inextricably connected. Not long after, the California Supreme Court decided in what is known as the Mono Lake case that Los Angeles couldn’t divert water for its city water supply from a non-navigable tributary upgradient from the lake, because it impaired the wildlife, aquatic life, and public use and enjoyment of the public trust lake. In other words, an activity upstream that impairs the downstream public trust body of water violates the public trust doctrine as much as if you discharged pollutants or diverted water from a pipe directly from the downstream water.

If human activity including industry, farming, land developments on land or near water harms or impairs downstream public trust waters, is that upstream? And if it violates the public trust, is it a reasonable or lawful use of land?

In the first decade of the twenty-first century, courts in Hawaii, Wisconsin, California, and Vermont have extended the protection of public trust waters to groundwater. The Hawaiian courts viewed groundwater and lakes and streams as inseparable in the same way as the earlier Mono Lake and Just decisions, and declared them to be subject to the duties and rights of protection under the public trust doctrine. Hawaiian farming and development interests could not rob groundwater and lower the levels of streams where it degraded or impaired public trust rights and uses of the stream. In Wisconsin, the state could not permit a town’s groundwater withdrawal without considering and limiting impairment to the public trust uses of an adjacent lake. In Vermont, a landfill could not leach chemicals to groundwater where it is determined it impairs public trust wildlife, fish, or uses.

In the last few years, courts now recognize that there is little difference from a land use that discharges pollutants to or removes water directly from a stream, and a land use that discharges or leaves pollutants on the land, or alters the land through construction that robs water that would otherwise flow to the stream. Hawaiian courts have nullified zoning permits issued to land developers where local governments have failed to consider the effect of the change in land use on adjacent or hydrologically connected public trust streams. Just recently, a court granted citizens the right to intervene in a land use permit proceeding to protect their public trust interests in nearby public trust waters. Last month, here in Michigan, a trial judge in Otsego County recognized that anglers had standing to contest privatization by a private fish farm of the public waters of the Au Sable River.

To come full circle around the water cycle, last fall a federal district court in Oregon in a case called Juliana v United States ruled that children of families whose use and enjoyment of public trust in streams and rivers were or would be impaired from increasingly frequent and more intense storm events or droughts could bring a court action against the federal government for failing to take stronger actions to protect their public trust rights attributable to the U.S. portion of human induced greenhouse gases.

When what we humans do to land, the hydrosphere, groundwater or our lakes and streams impairs our fundamental rights in public trust waters for sustenance, survival, health, safety, fishing, boating, or drinking water, now and for future generations, we are subject to the paramount rights of all citizens and communities protected by the public trust doctrine.

Think about it. Private landowners and their uses of water sit side-by-side with these public uses protected by the public trust doctrine. Both private landowners and the public depend on the common water that runs through and defines their watersheds, livelihood, health, and quality of life. What value does land have if the use of land or water destroys the common waters that sustains the private and public or community uses in a community?

Jim Olson

So what does this mean for us in a city or rural village in the Great Lakes region? It means that collectively we can use the existing framework for local planning and zoning, water and health ordinances, and redesign local or watershed local regulations and infrastructure like water services, roads, development, stromwater and erosion controls. It means that the focal point of this redesign is water centered on a single backstop principle— the public trust in our water commons that calls for protection of water quality and quantity from impairment in each community. If we do this, we will make good decisions in our communities and the world at large about health, food, energy, land use, infrastructure and quality of life for current and future generations.


The Public Trust Doctrine in Action

byzantine-empire-public-land.-trusts

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

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.