Public Trust Doctrine

Many often refer to this, but are unclear what it means. Here it is in its basic language, with more references to come.

Feel free to copy it and carry it with you if ever harassed about fishing, and if you are in the right. We cannot move forward without knowledge of our rights.

As always, please be respectful and do not argue or become loud if you are challenged. It's not worth getting arrested over. However, in the future, if this continues, we may have to consider getting groups of fishermen together to challenge the laws, and come prepared with copies of this and other documentation.

Exciting times ahead, folks.


The Public Trust Doctrine
http://stripersandanglers.com/Forum/...ead.php?t=1044

The set of laws that guarantees all people rights to the water. First set by the Roman Emperor Justinian around A.D. 500 as part of Roman civil law, the Public Trust Doctrine establishes the public's right to full use of the seashore as declared in the following quotation from Book II of the Institutes of Justinian:

“By the law of nature these things are common to all mankind – the air, running water, the sea, and consequently the shores of the sea.

No one, therefore, is forbidden to approach the seashore, provided that he respects habitations, monuments, and the buildings, which are not, like the sea, subject only to the law of nations.”

Influenced by Roman civil law, the tenets of public trust were maintained through English common Law and adopted by the original 13 colonies.

Following the American Revolution, the royal right to tidelands was vested to the 13 new states, then to each subsequent state, and has remained a part of public policy into the present time.

Through various judicial decisions, the right of use upheld by the Public Trust Doctrine has been incorporated into many state constitutions and statutes, allowing the public the right to all lands, water and resources held in the public trust by the state, including those in New Jersey.



Here's the link:

http://www.nj.gov/dep/cmp/access/pub...s_handbook.pdf

The Public Trust Doctrine has made its appearance in many court challenges. I have outlined the result of one case Tucci V. Salzhauer (336 NYS2d 721). This was a case involving the use of land in Hempstead Harbor in which the court defined the public's rights as:

"When the tide is in, he may use the water covering the foreshore for boating, bathing, fishing, and other lawful purposes; and when the tide is out, he may pass and repass over the foreshore as means of access to reach the water for the same purposes and to lounge and recline thereon."


In recent days there has been much talk and controversy over the right to access Shoreham Beach. Please post any other information or cases you find. This will help prove that under the Public Trust Doctrine our rights are protected.

I found an original case from 1892 Illinois Central Railroad V. Illinois, 146 U.S.387 (1892). In this case the Supreme Court held that the state cannot divest itself of its public trust interest. The court said that the state’s title to underwater land:

"….. is a title different in character from that which the state holds in land intended 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 therein freed from the obstruction or interference of private parties."

In 1992 the legislature amended the Public Lands Law (Law of 1992), c.791) codifying, in part, the Public Trust Doctrine. The intent of the amendment was to also ensure:

That the waterfront owners’ reasonable exercise of riparian rights and access to navigable waters did not adversely affect the public’s rights. The legislature state that use of trust lands is to be consistent with the public interest in reasonable use and responsible management of waterways for the purposes of navigation, commerce, fishing, bathing, recreation, environmental and aesthetic protection, and access to the navigable waters and lands underwater of the State.

As stated…..

The single most important feature of Public Trust Law is its ability to override prior legal claims. As a result, water rights that are demonstrably harmful to a navigable river or estuary can be set aside by application of the Doctrine, regardless of how old those prior claims may be. Thus the rights claimed by developers denying access or polluters preventing fishing are superceded by the Public Trust Doctrine.

Very cool, like how you guys started lining up and citing the case law. :thumbsup: Towns think we are stupid and can't use the net for research, they take us for idiots, and little by little think it's ok to restrict our access rights. Time to fight back.

Quote:

---

Originally Posted by DarkSkies

Very cool, like how you guys started lining up and citing the case law. :thumbsup: Towns think we are stupid and can't use the net for research, they take us for idiots, and little by little think it's ok to restrict our access rights. Time to fight back.

---

:clapping:

Didn't know much about the legal side till I saw it here, thanks for posting, guys.

This explains some more:

The Public Trust Doctrine generally extends to all lands below the historic mean high tide line. This means that bulkheaded lands or wetlands and tidal areas filled-in at any time in the past are protected under the Public Trust Doctrine.

Further explanation of the PTD:


Whenever private privilege is unfairly elevated over public rights, whenever a government regulator fails to enforce enivo laws, that is a violation of the Public Trust Doctrine.

This is what happens when towns try to restrict public access in violation of the Public Trust Doctrine:


Court opens private N.J. beach to all
Advocates of public access say ruling could ripple all along Shore
Wednesday, July 27, 2005
BY TOM FEENEY
Star-Ledger Staff
The public's right to enjoy the beach extends from the surf to the dry sand above it, even if that sand is privately owned, the state Supreme Court ruled yesterday in a landmark beach-access case.

The state's highest court ruled the owner of the private Atlantis Beach Club in Lower Township, Cape May County, must allow anyone willing to pay $3 for a daily beach badge to have full access to the beach, from the mean high-tide line back to the dunes.

It was the first beach-access case to reach the court in 21 years, and though the ruling stemmed from a case involving one private club at the southern tip of New Jersey, advocates and lawyers said it could change the way private beaches all along the state's 127-mile coastline are used by the public.


Beach-access advocates hailed the 5-2 ruling, which upheld a 2004 appellate court decision. The advocates said more than a quarter of the beaches along the New Jersey Shore are controlled by private owners, many of whom have resisted public access.

"The public now has a clearer right to access privately owned beaches, and the private property owners now have fewer rights than they did in the past," said Tim Dillingham, executive director of the American Littoral Society, which filed a friend-of-the-court brief in favor of greater public access.

The ruling establishes the principle that the owners of private beaches must make some of the dry sand above the high-tide line available to the public. The ruling makes no distinction between private beaches that operate as businesses, such as beach clubs, and homeowners.

"The ruling makes clear that all private beach owners have to make a reasonable amount of the dry sand beach available to the public," said Assistant Attorney General Stephanie Brand, who argued for the state in favor of greater public access.

At the same time, the decisionaffirms the right of private beach owners to charge reasonable fees to cover the cost of lifeguards and other expenses, and the standing of the state Department of Environmental Resources to regulate those fees.

The long-range impact of the ruling was unclear, but beach-access advocates said the court established a precedent that could be used to open other privately owned beaches to the public.

In the case of the Atlantis Beach Club, the court ruled the public must have access to the entire beach -- from the spot where the surf reaches at high tide to the high dunes between the beach and the condominium towers just west of it, a distance of more than 300 feet.

"The court held that the public trust doctrine applies on private beaches with the same vigor it applies on public beaches," said Stuart J. Lieberman, who represented a neighborhood group that sued to gain access to the beach. "But it will still be a case-by-case analysis to determine how much of the beach will be public."

The Atlantis Beach Club is a stretch of sand south of Wildwood Crest, in the Diamond Beach section of Lower Township. To the south of it is U.S. Coast Guard property closed to beachgoers for most of the summer in order to protect the piping plovers that nest there. To the north is a private beach where the public is already granted access.

The only building on the beach is a small shack where refreshments are sold. The club keeps the beach clean and secure, provides lifeguards and maintains a shower for visitors who are leaving the beach.

The owners of the property, Robert Ciampitti and Silverio Basile, allowed residents to use the beach for free until 1996. They formed the beach club that year and limited access by charging $300 for a family membership. By 2003, the annual price had climbed to $700.

Signs were posted on the small beach warning nonmembers to steer clear. Regulations also were posted, warning, "Anyone attempting to use, enter upon or cross over club property for any reason without club permission or who is not in possession of a valid tag and authorized to use such tag will be subject to prosecution."

To residents of the neighborhood near the club, the Atlantis offered the only access to the beach in a nine-block area. They believed they had a right to use the Atlantis beach and began protesting the steep membership fees.

The conflict came to a head in June 2002, when a local resident was issued a summons for walking across the sand without a membership.

After that incident, the beach club filed legal action in which it argued it had no responsibility to provide public access to its beach; the neighborhood group, known as the Raleigh Avenue Beach Association, filed a lawsuit claiming the opposite. Those two cases were merged into one. The neighborhood group won rulings from a trial court in 2003 and an appellate court last year.

Writing for the majority in the Supreme Court ruling yesterday, Chief Justice Deborah T. Poritz said, "The public trust doctrine requires the Atlantis property to be open to the general public at a reasonable fee for services provided by the owner and approved by the Department of Environmental Protection."

In a dissenting opinion, Justice John E. Wallace argued in favor of limiting public access on private beaches to the 10-foot-wide strip of sand above the high-tide line.

Attorney Robert J. Gilson, representing the beach club, said, "We were looking to have the balance between public and private rights struck the way the dissenting opinion strikes it."

Gilson said the club could apply to have the case heard by the U.S. Supreme Court but has not decided on that yet.

The state Supreme Court upheld the appellate ruling that allows the owners to charge the public enough to recoup their expenses but prohibits them from charging so much that they would profit from a public resource.

Since the appellate judges directed the DEP to set a reasonable fee schedule, the club has offered daily badges for $3, weekly badges for $15 and seasonal badges for $55.

Those rates have been in place all summer. As a result, yesterday's ruling caused barely a ripple on the beach at the Atlantis Club. Most beachgoers were unaware the court was considering the issue and expected they would be able to continue buying daily and weekly passes.

Owners and managers of private beach clubs elsewhere along the Shore were trying to figure out how the ruling affects them.

"This is a very beach-friendly, people-friendly beach club," said Mario LeTore, director of the Breakwater Beach Club in Elberon. "I don't think this is going to be a situation we at the Breakwater are going to be concerned with."

LeTore said anyone is free to use the club's beach, while the pool, cabanas and other facilities of the beach club itself, on the bluff above the beach, are reserved for members.

DEP Commissioner Bradley Campbell said he expects the most immediate impact of the court's decision to be on the attitudes of beach owners who have been reluctant to let the public onto their sand.

"The ruling should send a strong signal to the towns that have fought public access that it's time to comply with the law," he said.

Here is a URL for the opinion document:

http://lawlibrary.rutgers.edu/courts...40-04.opn.html

^I'll have to get an extra large cup of coffee before I read it. Thanks for posting, these towns have got to stop weaseling around this.

Quote:

---

Originally Posted by njdiver

Here is a URL for the opinion document:

http://lawlibrary.rutgers.edu/courts...40-04.opn.html

---

That's a famous case I read about a few years ago, thanks for posting the legal part. :clapping:

John Weber.He talks about access and the public trust doctrine
http://jerseyshore.surfrider.org/cam.../beach-access/




http://www.youtube.com/watch?feature...;v=OdTlqPuWyvg

With the heavy interest in NJ back bay fishing this Spring, I had an encounter this week that was won, in part because of my knowledge of the Public Trust Doctrine. If you want to know your rights, feel free to C&P that doctrine and carry it with you....or keep the link to this thread on your phone.

Also know that Riparian rights are separate and distinct from Public Trust Access. If this is something you are not sure about, please take a look at this thread and other threads in this section discussing Riparian rights.

This is another link posted by njdiver that could be helpful as well;

Quote:

---

Originally Posted by njdiver

Here is a URL for the opinion document:

http://lawlibrary.rutgers.edu/courts...40-04.opn.html

---

Above all, please be respectful and courteous if you do get hassled for fishing somewhere...we are all ambassadors of our sport. Negative behavior by one, reflects poorly on us all. Thanks.