The best things in life deserve legal protection: the shoreline and the Public Trust

We all know that the shoreline is special, both for its ecological role and for its inspirational value.

Remarkably, California law recognizes this specialness. The "Public Trust doctrine" guarantees that the state holds legal title to tidelands and the lands beneath navigable waters, in trust for the benefit of the people including obligations to future generations. The state can allow private uses of such lands, but the public aspect of title can't be alienated from public supervision. No matter how expensive the real estate, any private owner holds the property subject to the superior public interest.

Public access to navigable waters has historically been so important that these waters, along with the lands beneath them and the tidelands along their edges, have always been held in trust by states for public uses. The Public Trust was already part of territorial law when California became a state in 1850, and it was explicitly written into the Statehood Act. The clear threat of monopoly ownership of shoreline property on San Francisco Bay by powerful railroad companies induced tense discussions at the 1878 Constitutional Convention and resulted in explicit protections in the next year's revised State Constitution. The pressures of current shoreline development are certainly not new.

This doctrine is not merely a quaint survival, but a fundamental part of our social contract and a powerful tool for shaping waterfronts that better serve human and environmental needs. When disputes have reached the courts, the doctrine has repeatedly been proven as a basis for making responsible decisions protecting long-term public interests, especially where public and private interests were severely out of balance. For example, when a corrupt Illinois legislature deeded nearly the entire Chicago waterfront to a railroad company, the U.S. Supreme Court voided the transfer because the legislature didn't have the authority to surrender public control of an inherently public asset. When large portions of San Francisco Bay were slated for filling and development in the 1960s, California courts likewise upheld the Public Trust challenges by environmental advocates. Just this spring, the California Court of Appeals blocked a proposed exchange of trust land for less restricted non-trust land (which would have directly benefited a private developer) because the deal would have infringed on protected public values. The doctrine is very much a potent force in waterfront planning.

In the Bay Area the Public Trust applies to piers, wetlands, and many filled areas. The legal conventions which have grown from experience in applying the doctrine provide leverage to limit inappropriate shoreline development, protect open space, and promote ecological restoration where it is most needed. An expectation of exclusive private use on these lands can never formally vest. Thus, when the public acts to reclaim its trust interests, it is not taking private property and is not constitutionally required to pay compensation. Our courts have made it clear that past failures to protect public interets do not prevent current or future trustees from taking responsible action. These are sticks that shoreline developers, ever in search of public carrots, want to see changed, but they are historic public protections established with good reason.

One of the most important characteristics of the trust is that it evolves to accommodate changing public values and the growing need for publicly accessible open space. This becomes an important issue when public agencies try to acquire Bay wetlands (or some that have been only partially filled). Landowners insist on being paid "market" prices based on the potential for dense residential development - a use inconsistent with the Public Trust and often with local zoning. To blindly accept this stance is an unnecessary surrender to real-estate speculation. The Public Trust was designed to protect actual long-term public uses and to reduce the influence of people anticipating short-term private gain.

Public authorities are not just political representatives for the part of the public that makes the biggest campaign contributions, nor may they simply "split the difference" among competing proposals and interests. They are trustees with affirmative legal duties to protect public resources, and we all need to understand our responsibilities and rights from the start of development processes. But local governments, the concerned public, and even many of the non-profit organizations that represent our interests speak little about the Public Trust or how it can aid community campaigns to reclaim, shape, and protect the uniquely public characteristics of our shorelines.

It is time for broader and more informed community involvement in shoreline development. The public must be engaged as informed participants in all decisions about Public Trust lands, and historic public rights must not be lost through compromises reached in forums inaccessible to the communities directly affected. We need to learn how to approach our trustees and ask for more responsible development options. To protect our rights, we must know more about them and cite them when private developers advocate inappropriate development or complacent regulators vote to allow it. Our greatest risk is when we forget about these historic legal protections.

As David Brower said, "There's a weathervane on the top of every courthouse. It's our job to make sure there's a wind blowing from a healthy direction."

Michael Warburton, executive director, Public Trust Alliance

The goal of The Public Trust Alliance is to build the capacity of the public and of government representatives to use one of the most powerful tools available to preserve and defend valuable public resources. For more information, see its web site at www.publictrustalliance.org or call (510) 644-0752.