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The legalities of floating on Colorado Waters

 

Public Trust Doctrine.

The Federal Public Trust Doctrine is predicated on the recognition that there are certain public rights or public interests which cannot be alienated or brought under the control of a particular individual to the exclusion of all others. For instance, the necessity for essentially unimpeded travel by waterways and the use of waterways for commerce requires a society to be able to set aside those waterways for the benefit and the use of the public. It must be able to prevent a private individual from effectively holding travel and commerce to ransom.

Obviously all waterways don't qualify for this characterization. It would be impractical. Therefore the qualification developed that the waterways be "navigable". This characterization applied in England where most notable waterways were thereafter "tidal" because of the proximity of those waterways to the sea or in tidal rivers.

Where a waterway was determined to be "navigable" title vested in the public. Hence the determination of navigability was a process of determining title to the bed and riparian areas of a waterway. It is not just a process of identifying competing private and public interests and ranking them against each other. It is a process of destroying what the alleged owner thought were his property rights and vesting them in the public. It is the recognition that there is a form of "public property". In a legal system which has as its foundation the recognition and protection of private property any mechanism which permits discovery of the fact that land which the owner thought was private and maintained it accordingly is in fact public property must be viewed very seriously. Its exercise has the capacity to create enormous tensions.

It has been suggested by a number of writers and judges that since Roman times it has been accepted that certain resources belong to the public and are not alienable. It has also been suggested that this was subsequently the position in the English Common law and later adopted in the United States.

In fact this simplistic notion which has gained much judicial support in the US is inaccurate to the extent that it equates public rights (jus publicum) to public ownership and with it a ban on alienation. The jus publicum is probably better described as a public easement which exists giving the public access and enjoyment subject to certain limitations over land which might be held by the government or by certain individuals. In other words, the subtle distinction between outright ownership and the mere right to enjoy another's property subject to limitation was lost. The fact that a private person might own a river bed and banks, did not prevent the public from exercising the jus publicum or public right to travel over that waterway. The private and public rights could easily co-exist.

Most commentaries on the Public Trust Doctrine begin with the Justinian quote "[A]ll of these things are by natural law common to all: air, flowing water, the sea and, consequently, the shores of the sea." He also wrote "[a]ll rivers and harbors ... are public, and therefore there is a right of fishing, common to all, therein."  [The Institutes of Justinian 2.1.1 T. Cooper trans & ed (1841)]. For some this is the source of the argument that the public have rights to natural resources and therefore there is a legal basis for judicially recognizing the public right to such resources to the exclusion of individuals. In other words it is an argument for an expanded concept of public property. [See Professor Sax - The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention, 68 Mich L. rev 471 (1970)].

However contrary to the views expressed by those who see an opportunity to expand the concept of "public property" in claiming the authority of Justinian's brief recitation of Roman Law it has been pointed out that in Justinian's time the sea shore could be appropriated to private use [Patrick Deveney - Title, Jus Publicum, and the Public Trust" An Historical Analysis - 1 Sea Grant L.J. 13,37 (1970) and see also Glenn MacGrady - The Navigability Concept in the Civil and Common Law: Historical Development, Current Importance, and Some Doctrines that Don't Hold Water - 3 FL St. Ul L. Rev 513 (1975)].

There were however remedies private citizens could seek if, for instance, stream flows were blocked or diverted, or if a citizen wanted to challenge an obstruction to navigation or docking [James L Huffman - Speaking of Inconvenient Truths - A History of the Public Trust Doctrine Erskine Wood Sr Professor of Law Lewis and Clark School p 10. citing MacGready ibid]. Those scholars who have spent the time necessary to obtain a deep understand of the Roman position have concluded that there was no equivalent of the modern public trust doctrine in Roman law [Deveney ibid @ 21] despite the claims of many modern writers.

Historically the modern notions of a trust evolved in England out of a medieval use [see generally Holdsworth, A History of English Law Vol. 4.3rd ed. 1945, @ 407-80]. The essence of a trust is the division of the legal and beneficial ownership of property. The subject of the trust must be property. The object of the trust is usually described as a beneficiary. Trusts for public purposes are one of the few exceptions to the rule requiring certainty of object. This is contrasted with an easement where title, both legal and beneficial remains in the owner of the property but the property is charged with an encumbrance in the form of the easement which benefits another person or the public depending on the nature of the easement.

Proponents of the historical sources of the doctrine also point to the Magna Carta, to the Common Law and to Hale.

The Magna Carta was not a general statement of the rights of the public but a protest by Barons who were concerned at various actions by King John. In fact the Magna Carta was not a single document but a series of different principles which were revised and altered over time. Immediately after the Barons left upon the execution of the original document at Runymede in 1215 King John renounced the "security clause" which resulted in the ensuing First Barons War.

Proponents of the modern public trust doctrine claim Chapter 16 [ of the 1225 version of the Magna Carta] as a source of authority because it provided that "No riverbanks shall be placed in defense from henceforth except such as were so placed in the time of King Henry, our grandfather, by the same places and the same bounds as they were wont to be in his time".

The object of Chapter 16 was to prevent the continuation of the practice of the crown taking out a writ which forced a riparian landowner to repair roads and bridges at his own expense for the benefit of the King when undertaking fishing expeditions. So far from being a simple coherent historical antecedent of the modern public trust it took until the 19th Century before the interpretation of Chapter 16 was that it constituted a prohibition on the King's granting of exclusive fisheries [ Gann v Free Fishers, 11 Eng. Rep 1305 (H.L. 1865); Malcomson v O'Dea, 11 Eng. Rep. 1155 (H.L. 1863)].

The other source claimed by some writers was Chapter 23 which prevented weirs on the Thames and Medway. This was simply a mechanism to prevent the King from building obstructions to fish movement rather than an impediment on title.

Again, neither of these provisions contemplated the necessary division of the legal and beneficial ownership which is essential to characterize the encumbrance as a trust.

The other eminent English source was Lord Chief Justice Matthew Hale's treatise De Jure Maris et Brachiorum Ejusdem (S. Moore, A history of the foreshore and the Law relating there to (1888)) wherein he recognized a public right to " passage and repassage with their goods by water, and must not be obstructed by nuisances or impeached by exactions ..." [ibid @ 336]. But again the existence of a public right of movement does not create a public trust in the underlying property. It is more correctly described merely as a public easement which is an impediment on the title of the private owner.

Therefore the history of the Public Trust Doctrine in the US is a little murky because it is arguable that the original decisions were not actually reflective of the English precedents. The background is now only of historical interest because the modern public trust doctrine is part of the US law. However it is important to recognize that far from having the unimpeachable parentage of Roman and English law, the US modern public trust is more a figment of the fertile imagination of some American jurists who tended to look at the desired outcome and then shape the reasoning to suit the outcome rather than resolutely and strictly following the actual precedents.

And the process of judicially legislating for evolutions in the public trust doctrine is not done. A recent example is the Supreme Court of Montana decision in Montana Coalition for Stream Access v Curran 210 Mont 38; 682 P. 2d. 163 (1984) where, the majority of the court expanded its view of the public trust doctrine to include a test of recreational use.

Be that as it may, one of the high water marks of the US position is Arnold v Mundy [6 N.J.L. 1(Sup Ct 1821)] wherein the plaintiff claimed an exclusive right to an oyster bed which he tended. His title was traced back to a grant from Charles II, King of England, in 1664 and 1674. The defendant claimed the right to take oysters from the bed to the high water mark as part of the navigable waters of the Rariton River. Essentially Kirkpatrick, writing for the majority found that the land covered by navigable waters to the high water mark, were not capable of being exclusively alienated to an individual.

There is reasonable doubt as to the correctness of Kirkpatrick's reasoning. At the time there were cases of land in navigable waterways being alienated to private individuals with permission for them to erect structures such as piers and wharves. So it was obviously possible to transfer land to private individuals on terms which reserved to the public sufficient interest to preserve the object of maintaining the equivalent of a public easement over the relevant property.

In fact Arnold v Mundy (ibid) was actually overturned some eight years later [Gough v Bell 22 N.J.L. 441 (Sup Ct 1850)], yet the observations have become part of the precedent proscribing the notion of public trust law in the United States. Justice Kirkpatrick summed up his position in the following language:

  "Upon the whole, therefore, I am of opinion, as I was at the trial, that by the law of nature, which is the only true foundation of all the social rights; that by the civil law, which formerly governed almost the whole civilized world, and which is still the foundation of the polity of almost every nation in Europe, that by the common law of England, of which our ancestors boasted, and to which it were well if we ourselves paid a more sacred regard, I say I am of opinion, that by all these, the navigable rivers in which the tide ebbs and flow, the ports, the bays, the coasts of the sea, including both the water and the land under the water, for the purpose of passing and repassing, navigation, fishing, fowling, sustenance, and all the other uses of the water and its products (a few things excepted) are common to all the citizens, and that each has a right to use them according to his necessities, subject only to the laws which regulate that use ... [ibid @52]"

A careful reading of the decision will note the reference to the sea and tidal waters. However subsequent decisions in the US have extended that to navigable waters which are not tidal in nature. It was therefore a short step to take the view that any waterway which satisfied a definition of "navigability" was susceptible to the claim of inalienability under the public trust doctrine.

Part of the debate over the correctness of the doctrine is whether it prevents alienation of proscribed property in the first place, or whether it should be read as merely preventing the alienation of the property exclusively. In other words, property can be alienated subject to a public right to enjoy it in a proscribed manner and subject to regulation.

The narrower view is that the public does have certain inalienable rights of navigation over navigable waters, therefore any dealing with that land must recognize the public's inalienable rights. This narrower view was the one suggested in Gough v Bell (supra) and later in Illinois Central Railroad v Illinois (146 U.S. 387, 13 S.Ct 110 (1892)) wherein it was recognized that land beneath a navigable waterway can be alienated provided the effect of the alienation is consistent with the public interest and the public right to enjoy the navigable waterway. In other words, the alienation of land for a pier might in fact enhance public use of a waterway for the purposes of transportation and commerce, therefore the alienation is not inconsistent with the public benefit.

The subtlety of the distinction, though interesting to legal scholars, is not important now given that a century of cases has permitted the doctrine to evolve wherein now it actually operates as a mechanism for determining title and the consequential prohibition on alienation.

Why would this distinction evolve in the first place? One view is that in the formative years of the United States, fears of legislative corruption might have given the judiciary a motive to develop a form of judicial sanction which could not be overridden by a legislature [Kearney & Merrill - The Origins of the American Public Trust Doctrine: What really Happened in Illinois Central, 71 U. Chicago L. Rev. 799 (2004)]. This is emblematic of the judicial activism which has distinguished the US Supreme Court from the House of Lords and the Australian High Court over the years. Basically a belief exists in the US that certain decisions cannot be left to a legislature because they are corruptible and a form of judicially imposed restraint is desirable.

The other point is that no matter which way the court might lean in the future, in terms of the narrow question of public access to a navigable waterways, provided the waterway in question satisfies the definition of "navigable" from a commercial or transportation perspective for the purposes of the Commerce Clause the public should not be denied access at the very least for those purposes.

Consequences of the application of the Public Trust Doctrine.

If a waterway is found to be navigable, what is the consequence? Essentially it is owned by the state. It is a process for determining title. This is a consequence of the "equal footing" doctrine which held that all states newly admitted to the Union owned the land beneath their navigable waterways on an equal footing with the originally admitted 13 states [Pollard's Lessee v Hagan 3 Howard 212 (1845)].

Consequently, the land beneath the waterway to the highwater mark will become vested in the State to be held in trust for the public in perpetuity.

Because land is held subject to the public trust it is essentially inalienable. Obviously private interests can be granted to portions of the land such as in the building of structures like piers and dams but the grant will always be subject to the paramount rights of the public which cannot be extinguished. Nor can the private grant be inimical to the public interest. It must be consistent with it or enhance it.

State legislatures will be precluded from passing any laws overriding that public trust and any attempt to do so will be invalid. Federal power will be paramount.

State Public Trust doctrines.

So far the discussion has been confined to the Federal Public Trust Doctrine. It would be a mistake to think that the evolution of the Public Trust Doctrines in the various states followed from the Federal position. In fact the Federal doctrine was not definitively laid out until the Illinois Central Railroad v Illinois (supra) in 1892. Many of the eastern states had been grappling with issues of navigability and public waterways for a long time prior to this decision. As a consequence, the states which had to address these important commercial and community issues had developed their own versions of the public trust doctrine relying on their English antecedence.

Thus there is a rich and diverse body of interesting case law which evidences the manner in which various courts and legislatures have developed their doctrines which might usefully be referenced in understanding the subtleties of the various approaches which have evolved. Thus, for instance, some states, being geographically small and adjacent to tidal waters, have not been disposed to adopt some of the broader tests of navigability which have applied in states where waters are predominantly non-tidal [Maryland, Massachusetts and New Jersey]. Other states developed tests which predated the Federal tests and thereafter moved to incorporate Federal tests when circumstances dictated [e.g. Connecticut, Delaware]. This exemplifies the willingness of state courts to evolve their approaches over time in tandem or as a response to evolving community standards and public requirements. The key to understanding the role of the Public Trust Doctrine is to attempt to identify the factors which have operated in the minds of various courts over time in the course of evolving their respective doctrines. Thus it is a mistake to speak of a singular "Public Trust Doctrine" with general application. There is a Federal doctrine but there are a range of state doctrines and tests.

For the purposes of our discussion though, the reference to the "public trust doctrine" will be to the Federal doctrine simply because Colorado has never adopted any form of test or approach for its own purposes. Given the relevance of the Federal doctrine in a vacuum, this seems to be the most efficient way of approaching this discussion. But recognition of the willingness of the various states to fashion their own remedies for their own circumstances is key in understanding the fluidity of the law and the possibilities for development in Colorado. It would be a fatal error for anyone to think that this area of law is settled. And there are enough examples,[most recently Conatser v. Johnson Supreme Court of Utah July 18, 2008 2008 WL 2776716 (Utah 2008)] where landowners have been caught unawares by unanticipated court decisions to serve as a warning that flexibility in approach is key to giving rise to a mutually satisfactory outcome. Currently the Utah Legislature is enacting legislation which will limit the effect of Conatser but the decision caused a lot of unnecessary scrambling which a more thoughtful anticipation might have avoided.

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Please note that these notes are only the opinion of the author on the law in Colorado and are not therefore determinative of the issue. In the event that for whatever reason it is necessary to explore these issues further, the reader should obtain appropriate legal advice.

 

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