These state court rulings are corrupt-----there may be a situation where a manufacturing plant locates on a waterway for business but the entire periphery of coastline, whether ocean or harbor cannot be captured to private means. We are watching in Baltimore as waterfront communities global Wall Street Baltimore Development PRETEND are open to all 99% of citizens are being made more and more exclusive---tied to who works or lives on a global corporate campus. Offshore, these ties to US business are not to be found-----it is all multi-national----it is all tied to global banking 1% -----none of which are AMERICAN.
UNDERARMOUR COVE POINT given rights to a WATER TAXI business and marinas being called MARITIME. Having an industry like SPARROW'S POINT STEEL MILL taking a small section of waterfront property private is not the same as MOVING FORWARD where all coastal and waterfront properties are being tied to global corporations.
We see below CA as MD is ground zero for protests and lawsuits fighting for 99% access to PUBLIC TRUST TERRITORIAL WATER.
The Public Trust Doctrine
California State Lands Commission
Origins of the Public Trust
The origins of the public trust doctrine are traceable to Roman law concepts of common property. Under Roman law, the air, the rivers, the sea and the seashore were incapable of private ownership; they were dedicated to the use of the public. This concept that tide and submerged lands are unique and that the state holds them in trust for the people has endured throughout the ages. In 13th century Spain, for example, public rights in navigable waterways were recognized in Las Siete Partidas, the laws of Spain set forth by Alfonso the Wise. Under English common law, this principle evolved into the public trust doctrine pursuant to which the sovereign held the navigable waterways and submerged lands, not in a proprietary capacity, but rather “as trustee of a public trust for the benefit of the people” for uses such as commerce, navigation and fishing.
After the American Revolution, each of the original states succeeded to this sovereign right and duty. Each became trustee of the tide and submerged lands within its boundaries for the common use of the people. Subsequently admitted states, like California, possess the same sovereign rights over their tide and submerged lands as the original thirteen states under the equal-footing doctrine. That is, title to lands under navigable waters up to the high water mark is held by the state in trust for the people. These lands are not alienable in that all of the public’s interest in them cannot be extinguished.
Purpose of the Public Trust
The United States Supreme Court issued its landmark opinion on the nature of a state’s title to its tide and submerged lands nearly 110 years ago, and although courts have reviewed tidelands trust issues many times since then, the basic premise of the trust remains fundamentally unchanged. The Court said then that a state’s title to its tide and submerged lands is different from that to the lands it holds for sale. “It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing” free from obstruction or interference from private parties. In other words, the public trust is an affirmation of the duty of the state to protect the people’s common heritage of tide and submerged lands for their common use.
But to what common uses may tide and submerged lands be put? Traditionally, public trust uses were limited to water-related commerce, navigation, and fishing. In more recent years, however, the California Supreme Court has said that the public trust embraces the right of the public to use the navigable waters of the state for bathing, swimming, boating, and general recreational purposes. It is sufficiently flexible to encompass changing public needs, such as the preservation of the lands in their natural state for scientific study, as open space and as wildlife habitat. The administrator of the public trust “is not burdened with an outmoded classification favoring one mode of utilization over another."
The Legislature, acting within the confines of the common law public trust doctrine, is the ultimate administrator of the tidelands trust and often may be the ultimate arbiter of permissible uses of trust lands. All uses, including those specifically authorized by the Legislature, must take into account the overarching principle of the public trust doctrine that trust lands belong to the public and are to be used to promote public rather than exclusively private purposes. The Legislature cannot commit trust lands irretrievably to private development because it would be abdicating the public trust. Within these confines, however, the Legislature has considerable discretion.
The Legislature already may have spoken to the issue of the uses to which particular tide and submerged lands may be put when making grants of these lands in trust to local government entities. Statutory trust grants are not all the same--some authorize the construction of ports and airports, others allow only recreational uses and still others allow a broad range of uses.
A further and often complicating factor is that granted and un-granted lands already may have been developed for particular trust uses that are incompatible with other trust uses or may have become antiquated. Some tidelands have been dedicated exclusively to industrial port uses, for example, and in these areas, recreational uses, even if also authorized by the trust grant, may be incompatible. Similarly, tidelands set aside for public beaches may not be suitable for construction of a cannery, even though a cannery may be an acceptable trust use. Piers, wharves and warehouses that once served commercial navigation but no longer can serve modern container shipping may have to be removed or converted to a more productive trust use. Historic public trust uses may have been replaced by new technologies. Antiquated structures on the waterfront may be an impediment rather than a magnet for public access and use of the waters. Public trust uses may and often do conflict with one another. The state and local tidelands grantees, as administrators of their respective public trust lands, are charged with choosing among these conflicting uses, with the Legislature as the ultimate arbiter of their choices. For all these reasons, a list of uses or a list of cases without more may not be as useful as an analysis of public trust law applied to a specific factual situation.
The Leasing of Tidelands
A few principles established by the courts are instructive in analyzing under the public trust doctrine the leasing of public trust lands for particular uses. For example, it was settled long ago that tidelands granted in trust to local entities may be leased and improved if the leases and improvements promote uses authorized by the statutory trust grant and the public trust. Leases for the construction of wharves and warehouses and for railroad uses, i.e., structures that directly promote port development, were approved early in the 20th century. Later, leases for structures incidental to the promotion of port commerce, such as the Port of Oakland’s convention center, were held to be valid because although they did not directly support port business, they encouraged trade, shipping, and commercial associations to become familiar with the port and its assets. Visitor-serving facilities, such as restaurants, hotels, shops, and parking areas, were also approved as appropriate uses because as places of public accommodation, they allow broad public access to the tidelands and, therefore, enhance the public’s enjoyment of these lands historically set apart for their benefit.
These cases provide three guidelines for achieving compliance with the public trust when leasing tidelands for construction of permanent structures to serve a lessee’s development project: (1) the structure must directly promote uses authorized by the statutory trust grant and trust law generally, (2) the structure must be incidental to the promotion of such uses, or (3) the structure must accommodate or enhance the public’s enjoyment of the trust lands. Nonetheless, when considering what constitutes a trust use, it is critical to keep in mind the following counsel from the California Supreme Court: The objective of the public trust is always evolving so that a trustee is not burdened with outmoded classifications favoring the original and traditional triad of commerce, navigation and fisheries over those uses encompassing changing public needs.
Promotion of Trust Uses and Public Enjoyment of Trust Lands
Installations not directly connected with water-related commerce are appropriate trust uses when they must be located on, over or adjacent to water to accommodate or foster commercial enterprises. Examples include oil production facilities, freeway bridges and nuclear power plants. Hotels, restaurants, shops and parking areas are appropriate because they accommodate or enhance the public’s ability to enjoy tide and submerged lands and navigable waterways. The tidelands trust is intended to promote rather than serve as an impediment to essential commercial services benefiting the people and the ability of the people to enjoy trust lands.
Nevertheless, the essential trust purposes have always been, and remain, water related, and the essential obligation of the state is to manage the tidelands in order to implement and facilitate those trust purposes for all of the people of the state.
Therefore, uses that do not accommodate, promote, foster or enhance the statewide public’s need for essential commercial services or their enjoyment tidelands are not appropriate uses for public trust lands. These would include commercial installations that could as easily be sited on uplands and strictly local or “neighborhood-serving” uses that confer no significant benefit to Californians statewide. Examples may include hospitals, supermarkets, department stores, and local government buildings and private office buildings that serve general rather than specifically trust-related functions.
Mixed-use development proposals for filled and unfilled tide and submerged lands have generally consisted of several structures, including non-trust use structures or structures where only the ground floor contains a trust use. While mixed-use developments on tidelands may provide a stable population base for the development, may draw the public to the development, or may yield the financing to pay for the trust uses to be included in the development, they ought not be approved as consistent with statutory trust grants and the public trust for these reasons. These reasons simply make the development financially attractive to a developer. Projects must have a connection to water-related activities that provide benefits to the public statewide, which is the hallmark of the public trust doctrine. Failure to achieve this goal, simply to make a development financially attractive, sacrifices public benefit for private or purely local advantage. A mixed-use development may not be compatible with the public trust, not because it may contain some non-trust elements, but because it promotes a “commercial enterprise unaffected by a public use” rather than promoting, fostering, accommodating or enhancing a public trust use. That use, however, need not be restricted to the traditional triad of commerce, navigation and fishing. It is an evolving use that is responsive to changing public needs for trust lands and for the benefits these lands provide.
Moreover, commercial enterprises without a statewide public trust use may violate the terms of statutory trust grants. Typically, grants allow tidelands to be leased, but only for purposes “consistent with the trust upon which said lands are held.” This term is not equivalent to “not required for trust uses” or “not interfering with trust uses.” Since leases of tidelands must be consistent with statutory trust grant purposes, leases which expressly contemplate the promotion of non-trust uses rather than trust uses would not comply with the terms of the trust grants.
For these reasons, non-trust uses on tidelands, whether considered separately or part of a mixed-use development, are not mitigable. That is, unlike some environmental contexts where developments with harmful impacts may be approved so long as the impacts are appropriately mitigated by the developer, in the tidelands trust context, mitigation of a non-trust use has never been recognized by the courts. To the contrary, the California Supreme Court has said that just as the state is prohibited from selling its tidelands, it is similarly prohibited from freeing tidelands from the trust and dedicating them to other uses while they remain useable for or susceptible of being used for water-related activities.
Incidental Non-Trust Use
All structures built on tide and submerged lands should have as their main purpose the furtherance of a public trust use. Any structure designed or used primarily for a non-trust purpose would be suspect. Mixed-use development proposals, however, frequently justify non-trust uses as “incidental” to the entire project. The only published case in California in which a non-trust use of tidelands has been allowed focused on the fact that the real or main purpose of the structure was a public trust use and that the non-trust use would be incidental to the main purpose of the structure. In this context, the court noted that because the real or main purpose of the structure was to promote public trust uses, non-trust groups could also use the facility, but the non-trust uses must remain incidental to the main purpose of the structure. This is the state of the law, and it is supported by good policy reasons as well. If the test for whether a non-trust use is incidental to the main purpose of a development were not applied on a structure-by-structure basis, pressure for more dense coastal development may increase as developers seek to maximize the square feet of allowable non-trust uses. Disputes may arise as to how to calculate the square footage attributable to the proper trust uses versus non-trust uses, with open waterways and parking garages likely being the dominant trust uses and structures being devoted to non-trust uses.
It is beyond contention that the state cannot grant tidelands free of the trust merely because the grant serves some public purpose, such as increasing tax revenues or because the grantee might put the property to a commercial use. The same reasoning applies to putting tidelands to enduring non-trust uses by building structures on them. Accordingly, the only enduring non-trust uses that may be made of tidelands without specific legislative authorization are those incidental to the main trust purpose applied on a structure-by-structure basis. Each structure in a mixed-use development on tidelands must have as its primary purpose an appropriate public trust use. If its real or main purpose is a trust use, portions of the structure not needed for trust purposes may be leased temporarily to non-trust tenants, provided that the non-trust use is incidental to the main purpose of the structure.
The Role of the Legislature
The Legislature is the representative of all the people and, subject to judicial review, is the ultimate arbiter of uses to which public trust lands may be put. The Legislature may create, alter, amend, modify, or revoke a trust grant so that the tidelands are administered in a manner most suitable to the needs of the people of the state. The Legislature has the power to authorize the non-trust use of tidelands. It has done so rarely, and then on a case-specific basis. Many of its actions have been a recognition of incidental non-trust uses or of a use that must be located on the tidelands. When these legislative actions have been challenged in court, the courts, understandably, have been very deferential, upholding the actions and the findings supporting them.
The Legislature has provided a statutory framework for the leasing of tidelands for non-trust uses by the cities of Long Beach and San Francisco grounded on findings that the tidelands are not required for (San Francisco) or not required for and will not interfere with (Long Beach) the uses and purposes of the granting statute. Where, as in these two statutes, the Legislature has authorized in general terms the use of tidelands for non-trust purposes, the statutes’ provisions must be interpreted so as to be consistent with the paramount rights of commerce, navigation, fishery, recreation and environmental protection. This means that the tidelands may be devoted to purposes unrelated to the common law public trust to the extent that these purposes are incidental to and accommodate projects that must be located on, over or adjacent to the tidelands. These non-trust uses are not unlimited, for there are limits on the Legislature’s authority to free tidelands from trust use restrictions.
To ensure that the exercise of the Long Beach and San Francisco statutes is consistent with the common law public trust, the tidelands to be leased for non-trust uses must have been filled and reclaimed and no longer be tidelands or submerged lands and must be leased for a limited term. The space occupied by the non-trust use, whether measured by the percentage of the land area or the percentage of the structure, should be relatively small.
Finally, any structure with a non-trust use should be compatible with the overall project. Findings such as these are necessary because legislative authorizations to devote substantial portions of tidelands to long-term non-trust uses have generally been considered by the courts as tantamount to alienation.
In several out-of-state cases, specific, express legislative authorizations of incidental leasing of publicly-financed office building space to private tenants solely for the purpose of producing revenue have been subject to close judicial scrutiny, although they did not involve tidelands trust use restrictions. One case involved construction of an international trade center at Baltimore’s Inner Harbor with public financing where legislation expressly permitted portions of the structure to be leased to private tenants for the production of income. Another was a condemnation case where the statute authorizing the New York Port Authority to acquire a site on which to build the World Trade Center was challenged on the basis that it allowed portions of the new structure to be used for no other purpose than the raising of revenue. In both cases, opponents of the projects argued that a publicly financed office building should not be permitted to have any private commercial tenants even though the respective legislatures had expressly allowed incidental private use of each building. The state courts in both Maryland and New York held that so long as the primary purpose of the office building was for maritime purposes connected with the port, legislation authorizing the leasing to private tenants was valid. Although both cases involve challenges to financing and condemnation statutes and do not involve the public trust, they are instructive because they demonstrate the importance to the courts, even in the context of public financing and condemnation, that when a portion of a structure is to be leased for the purpose of raising revenues to offset expenses, this incidental non-public leasing must have been legislatively authorized.
Exchanges of Lands
Situations where a local government or a private party acquires a right to use former trust property free of trust restrictions are rare. In order for such a right to be valid, the Legislature must have intended to grant the right free of the trust and the grant must serve the purpose of the trust. Public Resources Code section 6307 is an example of the rare situation where abandonment of the public trust is consistent with the purposes of the trust.
Section 6307 authorizes the Commission to exchange lands of equal value, whether filled or unfilled, whenever it finds that it is “in the best interests of the state, for the improvement of navigation, aid in reclamation, for flood control protection, or to enhance the configuration of the shoreline for the improvement of the water and upland, on navigable rivers, sloughs, streams, lakes, bays, estuaries, inlets, or straits, and that it will not substantially interfere with the right of navigation and fishing in the waters involved.” The lands exchanged may be improved, filled and reclaimed by the grantee, and upon adoption by the Commission of a resolution finding that such lands (1) have been improved, filled, and reclaimed, and (2) have thereby been excluded from the public channels and are no longer available or useful or susceptible of being used for navigation and fishing, and (3) are no longer in fact tidelands and submerged lands, the lands are thereupon free from the public trust. The grantee may thereafter make any use of the lands, free of trust restrictions.
In order for such an exchange of lands to take place, the Commission must find that the lands to be exchanged are no longer available or useful or susceptible of being used for navigation and fishing, taking into consideration whether adjacent lands remaining subject to the trust are sufficient for public access and future trust needs; that non-trust use of the lands to be freed of the public trust will not interfere with the public’s use of adjacent trust lands; and that the lands that will be received by the state in the exchange not only are of equal, or greater, monetary value but also have value to the tidelands trust, since they will take on the status of public trust lands after the exchange. Only then can the Commission find that the transaction is in the best interests of the state, that the exchange of lands will promote the public trust and that it will not result in any substantial interference with the public interest in the lands and waters remaining.
Our west and east coast beaches are MOVING FORWARD to being devastated with environmental pollution and contamination------so if we do not act as REAL left social progressive 99% -----our health will be harmed by simply coming near our US coast and waterfront PUBLIC territorial waters.
Both CA and MD are staging a complete takeover of offshore territorial and EEZ waters by global corporate massive platforms owned and operated by multi-national corporations.
'Governor Jerry Brown vetoed legislation by state Senator Jerry Hill that would have enabled the state to purchase the easement leading to Martins Beach'.
So, states allowed to be called DEMOCRATIC ---NY, MD, CA are passing illegal laws trying to end PUBLIC TRUST because they work for global banking 1%-----killing 99% of US WE THE PEOPLE
The Fight for Public Access to Martins Beach Rages On
California Policy Manager, Surfrider Foundation
Attempts to wrest back access to Martins Beach from billionaire Vinod Khosla ramped up last year culminating in both good news – a court victory – and bad – Governor Jerry Brown vetoed legislation by state Senator Jerry Hill that would have enabled the state to purchase the easement leading to Martins Beach.
The Surfrider Foundation has worked diligently to open Martins Beach since 2010, when property owner Vinod Khosla locked the gates permanently to keep the public out. Surfrider has attempted to engage Khosla to work out a reasonable access plan, but has been met with litigious responses and accusations of blackmail. To open access to Martins Beach, Surfrider has worked on several fronts in addition to this litigation, including advocating to the Board of Supervisors in San Mateo County; advocating for the State Lands Commission to exercise eminent domain to acquire an easement to the beach; supporting state Senator Jerry Hill’s legislation SB 968 and SB 42, and supporting the defense of the Martins Beach 5.
In 2018, we remain determined to regain the right-of-way thousands of visitors to Martins Beach enjoyed prior to Khosla’s illegal closing of the gate. After all, California’s Coastal Act guarantees what should be a right everywhere, that all people can enjoy the ocean, beaches and waves regardless of income, background or where they own property.
Among our actions:
Surfrider Foundation’s California staff and legal team is continuing to support Senator Hill’s efforts around eminent domain.
We’re preparing to, if necessary, argue our case at the U.S. Supreme Court. Khosla’s lawyers have until February 22 to file a request to be heard at the top level.
We’re continuing to advocate at the California Coastal Commission and State Lands Commission to ensure our state agencies are pursuing all available options.
Khosla’s actions are not only illegal, but heartbreaking for so many longtime visitors to Martins Beach. Like Marilyn Barcellos, who wrote a letter to the California Coastal Commission last year and has allowed Surfrider to share it:
“Martin’s Beach is the only beach our families have been going to for over 120 years. It’s our favorite beach in the world. My mother is 93 and her parents took her there when she was a child… We have been sickened these recent years not having access to this beach… it’s completely heartbreaking. My husband’s family and my family have been going there since the beginning probably. I know my grandfather went there, and his parents probably took him there… My Grandfather died around 1973 at the age of 81. My mother is 93 now and still sharp as a tack. She spoke at one of your meetings last year, of her lifelong experience being able to go to Martin’s Beach. I’m 69 now and I’ve been going there since we were tiny kids. My mother’s grandchildren and our nephews and nieces and THEIR children have been going there… until the gate got LOCKED by some ‘rich’ guy. So unkind… if you do the math above you can figure out that our families have been going there, weekly, monthly to enjoy the beach as families and to fish. The fishing there was always great! We’ve been going to this beach as far back as 1880 or before… Doesn’t the public deserve continued access to this beach based on precedence? I wouldn’t think it would hurt someone to share the beach with people who absolutely love it and have been respectful of it for so many years. WE ALL MISS MARTINS BEACH. IT WAS OUR FAMILY MEETING GROUND.”
What may seem like a small issue, the closure or prevention of full public access to a single beach in an area that’s relatively remote, we see as a matter of principle. The beach belongs to us all.
'The Texas Open Beaches Act (TOBA) was passed in 1959 to assure that the public has the “free and unrestricted right of ingress and egress to and from” public beaches, defined as the area between the line of vegetation and the mean low tide line. Because the vegetation and low tide line shift due to natural coastal processes, the demarcation lines for public beaches are not static. The public’s right of access, or easement, moves as well'.
Here we are in 1959 TEXAS with laws strengthening PUBLIC TRUST along coastal waterfront----here is the public battle today. Our citizens allowed to build on top of waterfront are now angry as coastal erosion explodes----so too sea level rise taking away their rights as homeowners along the beach. These citizens are mad at 99% of WE THE PEOPLE fighting for public access to beach and shoreline.
PLEASE THINK WHICH OF THESE RIGHTS ARE CRITICAL FOR 99% OF US WE THE PEOPLE-----A SEVERAL HUNDRED YEAR OLD PUBLIC TRUST DOCTRINE----OR A FEW DECADES OF LIVING ALONG THE BEACH. LOSE THE BEACH HOUSE AND FIGHT FOR PUBLIC EASEMENT ALONG COASTS AND WATERFRONT.
Notice, the STATE owns these waterfronts ----not EEZ UNITED NATIONS.
Rolling Easements & the Texas Open Beaches Act
In all of the Gulf States, state ownership of submerged bay-side wetlands will migrate inland as tidal wetlands migrate with rising sea level, due to the common law rules of erosion and the public trust doctrine. In effect, then, a kind of rolling easement already exists on the bay shores in all five states. Wetlands, and the legal protections they enjoy, will migrate inland where topography and lack of development permit the migration.
This de-facto rolling easement, however, has one very significant difference compared to the Texas Open Beaches Act: the common law rules are ineffective in areas were bulkheads have been constructed to hold back the sea since the shoreline does not change as a result of the bulkheading. The boundary line between public and private property has been fixed. Where development occurs landward of coastal wetlands on the bay side, none of the Gulf states would force the movement of bulkheaded structures inland of the new mean high water mark in the case of sea level rise, in effect recognizing the permanence of the bulkheaded structure.
About the Texas Open Beaches Act
Unique among most states, Texas maintains a “rolling easement” on the Gulf shores to protect public access to the state’s beaches. The concept embodied in the TOBA has been termed a “rolling easement” and it evolved from Texas common law which recognized that Gulf beaches have been used by the public since “time immemorial” and that barrier islands are constantly shifting. The TOBA allows private land owners to develop their beachfront property as long as that development does not interfere with public access. As the vegetation line gradually moves the public access easement takes effect
The Texas Open Beaches Act (TOBA) was passed in 1959 to assure that the public has the “free and unrestricted right of ingress and egress to and from” public beaches, defined as the area between the line of vegetation and the mean low tide line. Because the vegetation and low tide line shift due to natural coastal processes, the demarcation lines for public beaches are not static. The public’s right of access, or easement, moves as well.
The TOBA prohibits the construction of an “obstruction, barrier, or restraint of any nature which would interfere with the free and unrestricted right of the public” to access the beach. Holding back the sea, either through bulkheading or seawalls is, therefore, not permitted along public beaches. One thing that should be noted is that the public easement created by the TOBA does not affect the title to the property to which it attaches. The TOBA, however, makes that ownership subject to an easement that allows the public free and unrestricted use of the beach.
Challenges to Texas Open Beaches Act
homes that must be removed after hurricane Ike, aerial image
Aerial photograph of the west end of Galveston Island right after Hurricane Ike (courtesy NOAA). The vegetation line in this photo has shifted well inland of the first row of houses, and in some cases beyond the second row. If the new line proves to be stable for more than a year, some of these homes will have to be moved out of the public easement.
Buildings located seaward of the vegetation line must be removed if those buildings become an impediment to public access to the beach, as they do when the vegetation line shifts. A structure is an impediment to public access merely by being in the public access zone. As might be expected, property owners affected by changing vegetation lines do not take kindly to having to move their houses. Litigation occurs after every major storm when any number of houses end up seaward of the vegetation line, but the Texas courts have uniformly upheld the validity of this law since its inception in 1959 until 2012.
The majority of the challenges to the TOBA are based on the Takings Clause of the Fifth Amendment which requires the government to compensate landowners when their property is taken for public use. Government regulation can result in compensatory takings if a property owner loses all economically viable use the land.( Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 (1992)) Texas has partially protected itself against takings claims under the TOBA. The Act requires that deeds for properties sold after October 1, 1986 contain a disclosure statement to warn buyers of the potential loss of their homes or buildings due to the movement of the vegetation lines. Such statements notify owners that they do not have a right to maintain structures seaward of the vegetation line.
Severance v. Paterson
In 2012, the Texas Supreme Court weakened the Texas Open Beaches Act. After Hurricane Rita, Texas sought to enforce TOBA on properties on Galveston Island that were now (though not previously) located seaward of the vegetation line. The owners sued the State in Federal District Court, though the TOBA rolling easements were upheld. The landowners appealed to the Fifth Circuit, which asked the Texas Supreme Court to determine if TOBA rolling easements applied to sudden changes in the shore, such as what happens with hurricane damage.
The Texas Supreme Court ruled that the TOBA rolling easement did not automatically apply (or spring forward so to speak) to eroded beaches and adjacent property after storm events. Upholding a property owners right to exclude others from one’s property, the Court ruled that the State could only take property via eminent domain with just compensation, an appropriate use of state police power, a legal easement, or other pre-existing limitation on property. The Texas Supreme Court ruled that none of these conditions were satisfied by the State argument. Through the State argued that property owners were aware of the TOBA requirements, the Court found that this knowledge did not displace an owners right of to exclude.
Therefore, the previous rolling easement line of TOBA was found to remain in place after sudden storm events, but could migrate with gradual natural changes to the beach. This ruling invalidates the rolling easement concept as it applies to sudden storm events. However, the rolling easement was upheld for gradual coastal change.
H.B. 3459: 2013 Amendment to TOBA
After the Severance v. Paterson ruling, the TOBA was amended by H.B. 3459 to grant decision-making authority to the General Land Office. The General Land Office was granted the authority to suspend the determination of the line of vegetation after it is destroyed by a sudden “meteorological event”, and to determine the new location of the line of vegetation. This authority is discretionary, and whether or not it is exercised to uphold private property rights or public access rights will be determined by the Commissioner of the General Land Office.
No Protection Landward of Vegetation Line
The Texas Open Beaches Act does not explicitly prohibit bulkhead construction landward of the vegetation line. What then, impedes developers from constructing bulkheads inland of the vegetation line? In point of fact, nothing in the law prohibits such construction. Many single-family homes on or near the beach in Texas are built on pilings or stilts to achieve the elevation needed to obtain insurance (17 feet). Little or no bulkheading accompanies stilt-built structures as a matter of practice.
There are, however, several high-rise condominium structures going up on the east side of Galveston Island. This part of Galveston Island is one of the relatively few areas on the Texas coast that are undergoing accretion rather than erosion, and the investors must feel there will be enough time to recoup their investment before the vegetation line moves. Other high-rise structures found along the beach in Texas on the vegetation line or just seaward of it were likely grandfathered in place.
We shared a video of a Hollywood movie showing an extreme case of EMINENT DOMAIN and the fight against Federal or state grab of private land or property-----but today these attacks using eminent domain are SOARING. It is not a WARTIME ACT----as our movie showed.
CLINTON/BUSH/OBAMA are far-right wing global banking 1% neo-liberals/neo-cons that have always been LIBERTARIAN. Neo-liberal is basically LIBERTARIAN so yes, their view is there will be NO PUBLIC PROPERTY. That is to where court challenges are going and it is to where EEZ and UNITED NATIONS is taking our US sovereign coast/waterfront standings. What do far-right wing PRETENDING to be left social progressives do? They use progressive terms to hide the fact that all public access areas and laws are being protected INSIDE GLOBAL CORPORATE CAMPUSES. It's private but we zoned it public access.
Where Maryland citizens are seeing the hardest hits are EMINENT DOMAIN for what is a massive statewide global corporate campus industrialization and all the roads, pipelines et al attached to creating Chinese-style FOREIGN ECONOMIC ZONES. This attack is extended offshore in Maryland and Baltimore MOVING FORWARD at the speed of light while 99% of WE THE PEOPLE watch CNN tabloid FAKE news on sexual liaisons and Russian conspiracies.
When we have MUNICIPAL BONDS that hide who is tied to that land development------and those tied to that land development are global banking 1% having nothing to do with our US city-----happening every day in BALTIMORE-----offshore in MARYLAND-----serious sovereign issues for our US 99% of WE THE PEOPLE are sliding under the radar.
ANY GROUP OR POL CLAIMING TO BE 'LEFT' WOULD HAVE BEEN SHOUTING AGAINST FOREIGN ECONOMIC ZONES, EEZ, EMINENT DOMAIN, PUBLIC TRUSTS HELD BY GLOBAL NGO FOUNDATIONS.
PACE ENVIRONMENTAL LAW REVIEW
The Public Trust Doctrine and Private Property:
The Accommodation Principle
The public trust doctrine has been attacked by libertarian property rights advocates for being grounded on shaky history, inefficient, a threat to private property, and inconsistent with the rule of law.
Some libertarians see application of the public
trust doctrine as an evisceration of private property rights.
In reality, such claims are hyperbolic. The doctrine actually functions to mediate between public and private rights, and thus is hardly the antithesis of private property; instead, it functions to transform, not eradicate, private property rights.
.This is the goal of global banking 1% CLINTON/BUSH/OBAMA now Trump------in redefining PUBLIC TRUST DOCTRINE that moved away from KINGS AND QUEENS or global 1% having control of all aspects of waterways-----pre-MAGNA CARTA-----to returning to that very condition eliminating several hundred centuries of citizens and public domain.
This is why all these GLOBAL GREEN CORPORATION policies that are NOT GREEN and actually cause CLIMATE CHANGE to soar-----are being used as the reason to END SOVEREIGNTY RIGHTS TIED TO PUBLIC TRUST DOCTRINE----and return to the days of MEDIEVAL OLD WORLD MERCHANTS OF VENICE GLOBAL 1% control of any and all land issues in US.
In the interests of saving the planet from a climate change the global banking 1% created and are sending to LEVEL 5 ====global corporate platforms termed as GREEN or SUSTAINABLE negate our AGE OF ENLIGHTENMENT PUBLIC TRUST DOCTRINE.
“THE GLOBAL PUBLIC TRUST, ANTHROPOGENIC CLIMATE CHANGE, AND UNIVERSAL HUMAN RIGHTS: IMPLICATIONS FOR GLOBAL GOVERNANCE AND INTERNATIONAL LAW”
Christian E. Banck Seminar on International Law of Armed Conflict ****FOR WRITING REQUIREMENT****** Prof. Jeanne M. Woods 4.28.2014
Introduction: The Global Public Trust Doctrine
The size and scale of human civilization as it has grown in complexity, population, and interconnectivity over the last 150 years and has grown to pose a clear and present danger to the continued survival of human civilization on this planet in the form of anthropogenic climate change. Anthropogenic climate change is defined in article 1 of the U.N. Framework Convention on Climate Change as “a change of climate which attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods.”
The fundamental natural processes associated with climate change are problems that future generations will continue to grapple with.
Simply put, meeting the challenge requires not just emission cuts, but a fundamental rethinking of how the legal systems of the advanced industrial societies function.
The current legal emphasis on the sanctity of private property rights is unsustainable because as currently seen individual private property rights are seen as holding primacy over collective rights, like the right to a clean environment.
The current economic emphasis on global capitalism is also unsustainable in its current form. The current international law regarding armed conflict is also insufficient to meet the challenge presented by climate change as ecosystems become more vulnerable and resource wars become more likely. Adapting to the reality of a changed global climate represents a paradigm shift that requires solutions that can be sustained for generations going forward.
What I am proposing should properly understood as a synthesis of several previously concepts namely the concept of collective rights and duties, the concept of government by the consent of the government as a trust between the government and the individual members of the community, the concept of the public trust doctrine to be expanded globally beyond the limited constraints of individual domestic law of nations and the concept of a global public trust doctrine as containing a fundamental human right that is granted as an individual right and an collective obligation owed by every human person on earth to each other supplies the necessary legal framework to balance the needs of first generation human rights with collectively held third generation human rights;
such a doctrine can ensure the preservation of second generation human rights in the developed world; it can work to promote the sustainable economic development of the undeveloped world; it provides a legal mechanism to limit the damage to the natural environment during armed conflict; and it has the potential to be a vehicle that protects the rights of unborn generations, while balancing the needs of the current generation.
Additionally, this would address the problem that climate change presents to security issues, as ecological systems degrade and we become more reliant on surviving vulnerable ecologies and these ecologies become likely targets and the danger represented by lone nations taking unilateral action to modify the global climate through a process of geo-engineering, like cloud salting, or the seeding of genetically altered plankton in the oceans to induce algae blooms to feed on carbon-dioxide and convert it to oxygen
'We want to go back to Roman times, the Magna Carta, the Charter of the Forest, the public trust doctrine, and points in between, to regenerate a body of “ commons law” that can provide new legal justifications for the commons. We call this the Commons Law Project, a multi-year effort to explore ecological governance in ... '
Lot's of use of the word COMMONER in this MOVING FORWARD back to DARK AGES stance on redefining PUBLIC TRUST DOCTRINE------United Nations is of course those global 1% banking OLD WORLD MERCHANTS OF VENICE from DARK AGES thinking of 99% of WE THE PEOPLE as COMMONERS----as in COMMONER CORE.
All of this is centered on the GLOBAL CORPORATE SUSTAINABILITY FAKE green/environmentalism.
Love that global carbon trading fraud led by United Nations to move sovereign land on water and land in this redefinition of PUBLIC TRUST DOCTRINE.
OUR WORLD--- 'OUR REVOLUTION'---- UNITED NATIONS GLOBAL 1%.
Can the Commons Move from Margins to Mainstream?
DEVELOPMENT & SOCIETY : Biodiversity, Economics
2012•02•27 David Bollier
Photo by Zach Klein.
So much of nature, culture and economic activity utterly depend upon the commons — the atmosphere, the oceans, wildlife and seeds as well as the Internet, scientific knowledge and creative works, among countless other commons. And yet corporate-dominated markets are doing everything they can to privatize and commodify our commons. After all, there is big money to be made in mining the deepsea ocean floor, patenting the genes of plants and animals, claiming proprietary control of agricultural seeds, owning new sorts of synthetic nano-matter that can replace ordinary substances, and owning mathematical algorithms that power software programs.
The great, unacknowledged scandal of our times is the market enclosure of things that belong to all of us. Instead of having free or low-cost access to the shared resources that belong to all of us, companies are privatizing them and forcing us to pay. This story is well-told by such books as Raj Patel’s The Value of Nothing, Lawrence Lessig’s Free Culture, Lewis Hyde’s Common as Air and my own Silent Theft.
Rather than review this history of contemporary enclosures, I want to focus here on what we going to do about them. How can we be more effective in combating enclosure and in making the commons paradigm more visible and consequential in politics, economics and culture?
The great, unacknowledged scandal of our times is the market enclosure of things that belong to all of us.
We must first recognize that the commons inhabits a political environment that is often quite hostile to it. In fact, the State and Market often have their own very good reasons for disliking the commons. For one thing, both are hungry for the revenues that come from exploiting the commons — and both State and Market often find it useful to support each other’s political objectives.
The market/state duopoly, as I sometimes call it, has another reason for disliking the commons: The commons often requires significant transfers of power to the commoners and new forms of social equity. So there is often a shared political interest for doing the wrong thing — that is, to enclose the commons.
Many resources that belong to us all are being privatized and commodified because corporations see them as cheap or free fodder for the voracious market machine. At the same time, these resources represent a cheap and convenient waste dump — a place to get rid of all the nasty externalities that businesses don’t want to internalize into their cost structures.
Comparing commons and market stories
If we are going to raise awareness of the commons and make it a serious element in policy discussions, then we are going to have to talk more aggressively about enclosure — because the privatization of the commons is in fact a profound disenfranchisement of people.
Having said this, we commoners need to do a better job of articulating and advancing what I call the value proposition of the commons. Here’s what I mean by that. The market has its own well-developed, aggressively promoted story about how material wealth is created and human progress is advanced. It’s a story about how private property rights, money and market exchange generate wealth. It’s a process that considers Gross Domestic Product a proxy for happiness. The market story is a story of bigger, better and faster, and it is the dominant norm of our time, a global religious catechism that is only now starting to come unravelled, thanks to the economic crisis of 2008.
The commons is a very different narrative — one that fills out that picture that this mainstream economic narrative omits. The value proposition of the commons cannot be expressed as a “bottom line” because it’s all about community empowerment and social equity and ecological security. Unfortunately, this is a fuzzy and complex storyline in the public mind, at least right now.
Some other reasons that the commons narrative has trouble going mainstream have everything to do with the intrinsic nature of the commons. Unlike the market narrative, which presumes to be standard and universal, the commons consists of countless distinctive and locally rooted examples, each different. The market celebrates quantitative measures of its performance, and so comparisons about who’s best, who’s richest, and so forth, are easy. By contrast, the value of the commons tends to be qualitative, social, spiritual, ecologically complex and long term. Needless to say, these values cannot be plugged into a spreadsheet and put into rankings, like the “Commons 500”. As a result, the commons is harder to see and name as a distinct sector — and therefore, it can be harder to reclaim a commons or build one from scratch.
The market story is a story of bigger, better and faster, and it is the dominant norm of our time, a global religious catechism that is only now starting to come unravelled, thanks to the economic crisis of 2008.
In addition, the commons storyline is relational, not transactional. While markets are focused on individual initiative, conflicts and competition and winners and losers, the commons is focused on stewardship, community benefit and sustainability. Guess which narrative is more dramatic and gripping to the media?
Paradoxically, the commons does all sorts of work that markets depend upon — but this work usually goes unacknowledged. The “caring economy” and other so-called “women’s work” is part of a vast, off-the-books shadow economy that invisibly props up the formal market economy. Nature is also part of this shadow economy. So is the public domain of information and culture. It tells you something about the vaunted “productivity” of the formal economy that it quietly relies upon so many invisible commons-based subsidies!
Whilst paywalls and patents are used to privatise access to technology and knowledge, other organisations are countering this by maintaining open access to medical findings, scientific knowledge and other cultural products.
Of course, many leaders of the market/state duopoly are not troubled by this. They prefer to keep the commons in the shadows. Why call attention to a valuable off-the-books subsidy? By keeping the commons unnamed, it is easier to neutralize it as a competitive power base. Without a vocabulary for naming the commons, the commons can be used and abused with impunity. It becomes harder to organize a community to defend it. Commons-based alternatives that might disrupt the status quo can be safely ignored.
Going mainstream with the commons discourse is difficult in many countries — most notably, the United States — because it clashes with the basic premises of laissez-faire individualism. When the US government tried to vanquish Native Americans in the 1800s, for example, the first thing that it insisted upon, as a legal precondition for US citizenship, was that Native Americans abandon their common ownership regimes and assign individual property rights to everyone. I can think of no better way of destroying a people.
The enclosure strategy is: Disassemble the connections that a community has to itself, its resources and its social traditions and rules. Convert commoners into consumers and make them dependent on the money economy.
This enclosure dynamic plays itself out repeatedly today. The strategy is: Disassemble the connections that a community has to itself, its resources and its social traditions and rules. Convert commoners into individual consumers and producers for the market system, and make them more dependent on the money economy. We must frankly recognize that “free markets” may entail a cultural agenda and identity shift.
Now, the argument is often made that the commons is simply a vestigial, pre-modern throwback. They say it’s impractical, it’s inefficient, it’s a “tragedy”. With the failures of communism and state socialism still hanging in the air, the claim is made that self-organized collective action threatens “freedom”. We need to fight these myths by asserting the real value-proposition of the commons.
Deepest of origins
I will concede, the critics get it partly right: the commons has pre-modern origins. I’ll go a step further. I’m convinced that the commons is as old as the human species. It predates the modern marketplace and state — and as the great historian of the commons Peter Linebaugh has put it, the commons is “independent of the temporality of the law and state”.
Evolutionary biologists, geneticists and anthropologists now tell us that cooperation is hard-wired into the human species. It is, they say, an “evolutionary stable strategy” — one that confers competitive advantages on homo sapiens in its ongoing struggle to survive. Scientists say that such evolutionary innovations as language, agriculture, altruism and even the whites of our eyes, reflect our natural propensity to cooperate and develop social trust.
As social order has evolved, so have the institutions that can protect our collective interests. In Roman times, the Emperor Justinian famously established several categories of law to reflect collective ownership. Things were considered res communes if they were owned in common by everyone as a whole. The Code of Justinian states: “By the law of the nature these things are common to mankind — the air, running water, the sea and consequently the shores of the sea.” Another category of property was things that belonged to the State -- res publicae. Things that belonged to no one — such as wild animals and abandoned property — were considered res nullius.
Another landmark in the history of the commons was the adoption of the Magna Carta in 1215 A.D. and a few years later, the Charter of the Forests. A series of conflicts and civil wars between the commoners and barons and the king eventually forced King John to formally recognize commoners’ rights — from due process rights and habeas corpus to the right to use the forest commons to supply their primary subsistence needs — for food, firewood and building materials.
I recall this history because it is another reason why the commons has been marginalized. Much of its history has been forgotten or bastardized. Consider our skewed remembrance of John Locke, who is responsible for the most celebrated and enduring theories of private property. Locke considered it a divine right for people to claim private property rights in things that they made with their own labor. What is usually omitted from Locke’s formulation of this right is his significant qualification — “…so long as there is enough, and good left in common for others.”
Recovering the history of commons law will show that human well-being is best served by respecting the integrity of regional ecosystems (which may or may not coincide with political boundaries) and the stability of local and regional communities.
In other words, private property rights can be justified only if the common pool resource is preserved intact. That often requires a commons. Let’s just say that the Wall Street Journal and Financial Times have forgotten such things. It reminds me of the novelist Milan Kundera’s famous line, “Man’s struggle against power is the struggle of memory against forgetfulness.”
Without a coherent, big-picture history of what I call “commons law,” it is hard for commoners to argue in courts and legislatures for what is theirs. The law frequently ignores or rejects commons-based approaches. That is why I am currently working with a noted international law and human rights professor, Burns Weston of the University of Iowa College of Law, to try to recover and refurbish this history. We want to go back to Roman times, the Magna Carta, the Charter of the Forest, the public trust doctrine, and points in between, to regenerate a body of “commons law” that can provide new legal justifications for the commons. We call this the Commons Law Project, a multi-year effort to explore ecological governance in partnership.
We need to recover the history of commons law, and regenerate it for our times, so that we can begin to imagine and invent new approaches to protecting our natural ecosystems. Existing law is predicated on the idea that the greatest benefits come from maximizing market exploitation of natural resources. It assumes that those resources are inexhaustible and that the byproducts of market activity (e.g., air and water pollution, toxic waste, climate change) are negligible. This is simply not true — yet the deep premises of modern law presume that maximizing private property rights, individual self-interest and market exchange will necessarily yield the greater public good, as Adam Smith’s Invisible Hand declares.
Recovering the history of commons law will show, on the contrary, that human well-being is best served by respecting the integrity of regional ecosystems (which may or may not coincide with political boundaries) and the stability of local and regional communities. The market needs to become the servant of these needs, not the master. Within a framework of law and public policy, communities must find new ways to limit their market-driven exploitation of nature. That’s where a new type of commons-based law can be helpful. It can help us invent new types of socio-legal mechanisms to protect ecological commons. It can also provide a valuable body of moral and legal principles to which contemporary environmental activists can appeal in their political advocacy.
In a larger sense, recovering the history of the commons can help us develop a new grand narrative for the commons. It can help us understand how the dynamics of enclosure in the past are repeating themselves today. It can help us recognize who are the victims of enclosure: chiefly women, the poor, the elderly and others who depend on the commons for subsistence.
Tearing fences down
The history of the commons is also a source of inspiration. It can validate the creativity of commoners of the past who struggled to protect their shared wealth and self-determination. I only recently learned about the medieval tradition of “beating the bounds” — an annual community perambulation around the perimeter of the commons — complete with good food and drink.
The event celebrated the community’s identity as commoners while providing a way to tear down any fences, hedges or other enclosures. I was astonished by this revelation — commoners once had the affirmative legal right to knock down enclosures of their shared resources! We need to recover and remember the history of the commons as a way to help understand some challenges facing us today.
I see great potential in the commons because it goes beyond political ideology to propose a paradigm shift, a different worldview. It knits together the economic, political, cultural and humanistic into one coherent discourse. It empowers individuals to help themselves. It helps reconnect people with each other, and with the earth. It helps regenerate personal meaning and social tradition. It helps foster sustainable management of ecological resources.
For me, it is the ethic of the commons that may be most valuable. Alain Lipietz, a French political figure and student of the commons, traces the word “commons” to William the Conqueror and the Normans. I love the etymology of the word. It comes from the Norman word commun, which comes from the word munus, which means both “gift” and “counter-gift,” as a duty. Munus is related to what the economist Karl Polanyi called “reciprocity”.
I think we need to recover a world in which we all receive gifts and we all have duties. This is a very important way of being human. Tragically, the expansion of centralized political and economic structures tends to eclipse our need for gifts and duties. We rely on money or the state for everything. And so we forget what Ivan Illich called the “vernacular domain” — the spaces in our everyday life in which we create and shape and negotiate our sense of how things should be: the commons.
The basic problem is that we need to rediscover “commoning” — the commons as a verb, the commons as a set of social practices. “The allure of commoning,” Peter Linebaugh has written, “arises from the mutualism of shared resources. Everything is used, nothing is wasted. Reciprocity, sense of self, willingness to argue, long memory, collective celebration and mutual aid are traits of the commoner.”
Now, the really great thing about commoning is that it is not just a figment of history. It’s alive and growing! In fact, today we see the rise of countless self-styled commoners — people who see the commons as a way of dramatically reframing how they might conduct politics, conceptualize economics and revitalize democracy.
Today we see the rise of countless self-styled commoners — people who see the commons as a way of dramatically reframing how they might conduct politics, conceptualize economics and revitalize democracy.
In November 2010, in Berlin, some 200 self-identified commoners from 34 countries gathered in Berlin at the first international commons conference, hosted by the Heinrich Böll Foundation and the Commons Strategy Group. It turns out that agricultural activists from the Philippines and computer hackers from Amsterdam and defenders of urban spaces in Croatia and free culture advocates from Brazil, despite their obvious differences, actually have a lot in common. They all celebrate an ethic of participation, inclusiveness, transparency, social equity and collective innovation.
There are some amazingly large and robust trans-national communities of commoners who are making serious progress in taking charge of the common wealth. These include a vast network of free software programmers who created GNU Linux and thousands of other shareable software programs; the Wikipedians in dozens of countries who edit the largest encyclopaedia in history; the millions of digital artists and authors in more than fifty countries who use Creative Commons licenses; the growing world of open access scholarly publishing, which has bypassed expensive commercial journals to make their work freely available in perpetuity; the Open Educational Resources movement, which creates and shares open textbooks and curricula and learning materials.
Beyond this exploding universe of digital commoners, there are self-identified commoners who are recovering urban land and community gardens; commoners who are fighting to keep genetic knowledge free and open; commoners who are building solar energy panels on public rights-of-way; commoners who are building open-source hardware and agricultural equipment; commoners who are ingeniously using Internet technologies to improve ecosystem protection. The list goes on and on.
So how do we open some new conversations and build some new alliances? I propose the following strategies:
- Let us recover and remember the history of the commons so that we can appreciate its role in different historical and political contexts.
- Let us develop a grand narrative about the commons that can be popularly understood, so that we can communicate the value proposition of the commons better.
- We should try to bridge the cultural divide between digital commoners and natural resource commoners, because there truly are important synergies between the two.
- We should try to formulate how the commons can work with existing state institutions and policy structures, while inventing new forms that are more appropriate to the commons.
- We must try to reframe mainstream political and economic discourse with a commons perspective, so that some bright, alternative futures can be seen.
- And finally, we must strengthen the linkages between commons scholars, practitioners and activists, so that we can learn from each other and support each other’s work.