Coastal & Ocean Law- Fall 2015
Governing the Commons
· Hardin- Each individual will seek to maximize his gain in a common resource.
· In a pure open access commons, there is no incentive to encourage restraint of what they are doing.
· “tragedy of the commons”- overexploitation of a common resource
· If ONE does do something different (reseed the grass for instance), then everyone else can take advantage- IE nice guys finish last
· Privatization-give property rights like fencing in different plots in a field, and giving each farmer a piece. Not always pos
· sible (such as the high seas). Easier to do with land- just put a fence up. One way to avoid tragedy.
· Centralization- put the responsibility on one central government- how the US does most of it. The Fed. Or state gov’t manages the commons.
· Hardin speaks about Coercion to stop the tragedy. (like parking meters- or taxes)
· Hardin also speaks of prohibiting the conduct to stop it. (like prohibiting bank robbers)
· In US, most of our environmental laws don’t prohibit, but coerce. “you can’t cause SO much pollution,” not “you cannot pollute”
· Hardin only recommends “mutual coercion”- the majority agrees upon the law.
· Ostrom- she was exploring a coercion system- but one that is a social agreement, NOT governmental. Fishermen coming together to figure out how to manage the resources.
· Large scale mutual coercion is tough- easier with small scales such a small group of fishermen- BUT what about on the entire east coast?
· Rose- the free rider problem- Think welfare- “we take the benefits that common resource provides, and we are not going to do our part”
· Rose spoke the development of a social norm- like a company going green. The idea that we are all going to use the resource, but we all need to have some restraint in doing it.
Public Trust Doctrine (via Webinar)
· one of the foundational elements for the use and development of our coast
· roman law and English common law give us the notion that land under the sea can be held by title
· 535 in the Justinian “air, running water, sea, and shores”- law of nature
· Extent of the “seashore” is different in different places (state v. state for example)
· Public right to fish in navigable water is also rooted in roman law
· Public use of bank of river and seashore is also part of the law of nature in roman times
· Public free to beach vessels, place cottages, etc on the seashore in roman times
· PTD is very unique to the US (as compared to England)
· Arnold v. Mundy and Martin v. Waddell- fights over oysters, and the right to fish in a 100 acre oyster bed. One says “I own the land” and the other says “public has the right to fish”
§ Mundy and Martin where like “na we have a lease to harvest oysters, so we can do it”
§ Others like, “nah I own the land”
§ Arnold case is state supreme court- ruled that navigable water is held in trust for the benefit of the citizens
§ Therefore, landowner doesn’t have the right to do that
§ Waddell then tried to challenge the state’s right in owning the land in trust for the public
§ It was a “Test case”- designed to challenge
§ Waddell claimed he had a right to oyster bed through title- given by King of England
§ Defendants claimed that the title was ineffective- basically challenging the chain of title
§ The court drew upon Magna Carta and an English treatise “juris Moris”, which recognized a common right to these resources
§ The court decided that the state of new jersey ended up with title when they became independent of England (in revolutionary war)- had right to land under water for the benefit and public use of their citizens
o States ownership of these lands differs from a citizens’ rights to private land is the fact that a a state has “title” by holding it in trust for the public.. they have rights and responsibilities to the land, but not complete ownership— cant sell it, for example
o Private property/ public property/ common property- Common property remains common to all citizens who use the resources (air, animal, water, fish, etc)
· Pollard v. Haygan
o Parties fighting over submerged lands
o Haygen’s claim to land was from a prior Spanish land grant
o A dispute between two private properties- a federal patent vs. a Spanish land grant (which goes back further)
o The court said, before states, when just territories, the federal government held that land in a trust to hold for the new states (same “trust” concept)
o “equal footing doctrine”- how the court dealt with the original 13 colonies, who got the title from the crown, and the new states that came in.. said the new states came in with “equal footing as the original 13” and have the same rights and responsibilities over the submerged land
o Court said that Haygen (Spanish land grant) had the title to the land- because the federal gov’t didn’t have the right to transfer the land while it was a territory. The federal gov’t never acquired it, because Spanish had given it before!
· These are first cases to extend the idea of land under tidal waters
· Navigable waters are MORE than tidal waters (ms river for example)
· Following these cases, the state’s courts started to split over whether the PTD should apply to FRESH WATER navigable waters
PTD-(HER WORKING OUTLINE)
o who holds title to Submerged lands?
§ the original 13 colony’s (martin v. Waddell) as successor to the English crown.
§ Subsequent states through the equal footing doctrine (Pollard and Shively cases)
§ Private parties (in rare cases) if conveyed through valid foreign land grants (Haygen)
o Which submerged lands? (usually High water mark- which is the mean high tide line)
§ Those under tidal, navigable waters (Arnold, Martin, and Pollard all involved coastal land)
§ Those under fresh navigable water (Illinois central)
§ Subject to the flow of the tides (shallow waters- moving the PTD UP)
· TRUSTEE RESPONSIBLITIES
o Hold the land in trust
o A duty NOT TO dispose
§ CAN dispose if 1), conveyance is made w/o detriment to public interest, 2)conveyance through legislature, and 3) conveyance is made in furtherance of a public interest
beach in this town- so second factor is big
o It was the only direct route to the water
o SO.. nah.. you can’t do that, you dirty private beach club
Public Trust Doctrine- Keepin’ it comin’
· MccGarvey v. Whittredge
o Neighbor owned scuba diving company.. had to cross other neighbor’s intertidal land to get to the ocean- that neighbor didn’t like that
o Here, fighting over “intertidal area” or “foreshore”- area covered twice a day by the tides- between the HWM and the LWM
o Maine (here) is a low water state- so the citizens own up to the LWM
o Even though a citizen in Maine can own the intertidal land, it is STILL subject to public trust rights
o Does scuba diving come within “navigation, fishing, and fowling”?
§ Does the intended activity fall within one of these categories? –not really (the concurrence says YES, it falls within navigation)
§ Should Maine common law include it?- yeah it should
o This doctrine is EVOLVING- it’s not fixed. Should add stuff like scuba diving because this common law is flexible, and can evolve over time, to reflect the changing time
o Court breaks the land into three different zones (IMPORTANT)
§ The Submerged lands
§ The Intertidal lands
§ The area above the HWM
o The colonial ordinance is still on the books- they “absorbed it” into the common law- the CO gave Maine citizen rights to own up to the LWM (not really imp., but w/e)- why we have low water states
o Maine doesn’t give a general recreational easement, however.
· Surfrider Foundation v. Martins Beach
o Martins beach is a popular surfing beach- guy bought it and started denying access to surfer bro’s
o Bro’s saying that PTD and California constitution denies someone from blocking off use to navigable waters
o Has the new owner “developed the land” under the coastal act?
o Court says yes- building gates and putting up signs to keep people out is development- and he “changed the intensity of use of the beach”
o Therefore, he needed a development permit under the act! And he didn’t get one!
· New Haven Port v. East Sussex County Council
o A case out of the UK
o NHP restricted access to a beach that had been used publicly for over 80 years
o The UK supreme court has held that there is no general common law right to beach access- big difference between US and UK
o Public in Britain does have broad rights for fishing and navigation, but not for recreational purposes
o Interesting that the UK is looking to the US and our PTD in trying to come up with a decision