Page 2 Hackensack Tidelines, Summer 2001
PUBLIC TRUST DOCTRINE
By Kathy Urffer
We here at Hackensack Riverkeeper occasionally get calls from concerned people who want to put their canoe or kayak in the water to enjoy a day on their local river, but are afraid of being harassed for "trespassing" on their way to the water. They (and you) shouldn't be. Why? Because of the Public Trust Doctrine.
The Public Trust Doctrine is a legal precedent dating back to the Code of Justinian in Roman times. It holds that navigable rivers, streams, wetlands, seashores and bays belong to the people; who have a right to access and use the waterfront for traditional purposes such as swimming, navigation, commerce, and fishing.
The Doctrine was preserved through the Magna Carta, which limited the King's ability to sell the beach to private owners, and became a mainstay of English Common Law, upon which our Constitution is based.
The Doctrine has had the force of law in the United States since the American Revolution and has upheld the right of the people to access the navigable waters, which are owned by them, and held in trust for them by the state.
In its modern form, the Doctrine has been held by the courts to embody both a right of the people to access, use, and enjoy the water; and a duty on the part of the states to protect and care for the water, waterfront resources and wetlands that it holds in trust for the people, even if those lands are privately owned. Under the Doctrine, the state can sell tidally flowed land, but it cannot sell the public's rights in that land and is bound to protect those rights. In other words, the Public Trust dictates that the people have a right to access tidal areas.
Since the Public Trust Doctrine is common law, each state interprets it slightly differently – in terms of where the public portion of the waterfront begins and ends, the relationship between public rights and private rights, the applicability of the Doctrine to non-tidal water, etc. But regardless of the interpretations, the Supreme Court has held that no state has the power to alienate the public's rights in the waterfront for the benefit of a private interest.
The Public Trust Doctrine protects the public's right to physically access the waterfront. Generally, the portion of the waterfront subject to the public's access rights is the foreshore or "wet sand" area seaward of the mean high tide line. The owner of the "dry sand" are landward of that line—be it the government or a private party—may not keep the public from accessing, fishing, navigating or recreating on the wet sand below. The law varies from sate to state as to whether the public is allowed vertical access across the dry sand to reach the foreshore. In New Jersey – whose Public Trust Doctrine protections are among the strongest in the country—members of the public are entitled to "reasonable" access across privately owned dry sand area to reach the wet sand.
We have been so influenced by the pre-eminence of private property "rights" that we have forgotten public rights. The right to have a healthy environment and to be able to enjoy that environment in order to feed our body and soul; the right to clean air, and clean water and the access to both, and the consideration of the life and health of plants and animals with whom we share this small planet.
So, get out there and paddle!!! We only protect what we love, and love what we know, and we can't know the river if we falsely believe that we have no right to access it.
Portions of this article were reprinted with permission from NY/NJ Baykeeper. For more information on the Public Trust Doctrine and litigation history, please contact the NY/NJ Baykeeper at 732-291-0176. (www.nynjbaykeeper.org)