“That generations of trustees have slept on public rights
does not foreclose their successors from awakening.”
Supreme Court of Arizona, 1991

The Public Trust Doctrine In Motion is a great title for this book because it denotes action and movement, which is exactly what David Slade captures in this book - the evolution and application of the Public Trust Doctrine to new resource management issues and conflicts. From the oyster harvesting conflict on Raritan Bay in 1821 to controlling jet skis in Marin County, California in 2002, and from the harbor area of Provincetown, Massachusetts to the mountain streams and ditches of Hawaii, David Slade has comprehensively analyzed the Public Trust Doctrine historically, geographically and substantively.

The Public Trust Doctrine is an ancient and venerable concept that traces its lineage back to Roman Law and the Institutes of Justinean. It was later incorporated into English common law and initially applied by state and federal courts in this country to tidelands in the first half of the 1800’s. The doctrine then migrated up the Mississippi River in Barney v. Keokuk  in 1876, and finally into the Great Lakes in 1892 in the landmark case of Illinois Central Railroad Co. v. Illinois.  The basic tenant of the doctrine is that certain natural resources, especially the waters and submerged lands of the sea coast and navigable lakes and rivers, are of such importance to the public that they are incapable of purely private ownership and control. Originally the traditional uses protected by the Public Trust Doctrine were commerce, fishing and navigation. Beginning in 1971 and continuing for the next 25 years, state courts throughout the country but especially in California, Washington, Wisconsin and New Jersey, substantially expanded the uses and resources protected by the doctrine to include recreational and ecological values, wetlands protection, preventing diversion of water from a navigable lake, and assuring public access to coastal beaches for swimming and sunbathing. This historical evolution and inland migration of the Public Trust Doctrine was thoroughly analyzed in the first two treatises published by the Coastal States Organization (CSO) in 1990 and 1997, both of which David Slade was heavily involved with in researching, writing and managing the input from the 34 coastal states and territories.

In his new book, David Slade uses the last decade’s 285 “Public Trust Doctrine” court cases (the Study Cases) to bring us up to date in 2008 with the application of the Public Trust Doctrine to contemporary resource management conflicts such as fisheries management, controlling jet skis (or personal watercraft), withdrawals of groundwater that adversely affect navigable lakes and rivers, and the increasing clash between prior appropriation claims to surface water in the western states with public use values of fish and wildlife habitat, canoeing and recreational boating, and fishing. The Study Cases also include how the doctrine applies to such interesting topics as the modern harvesting of geoducks (a delectable mollusk) along the State of Washington’s shoreline, and the renovation of Soldier Field in Grant Park on the Chicago waterfront, where the Chicago Bears play a legendary brand of tough football.  As Mr. Slade notes in his conclusion to this book: “But with the Doctrine’s inherent flexibility to evolve as the mores and needs of our society evolve, as our scientific understanding advances, and as we recognize more everyday that our natural resources are suffering under the weight of a modern society, the Doctrine’s essential place in resource stewardship is abundantly clear.”

Equally important to the solid legal analysis and crisp writing style used by Mr. Slade, is his depiction of the people involved in the cases, some colorful, some conscientious and others very creative, to illustrate the human dimension of effective resource management and protection.  From Captain Mundy harvesting oysters on Raritan Bay in New Jersey, to Joan Glass trying to peacefully walk along the northern Lake Huron shoreline in Michigan, Mr. Slade has vividly personalized the importance of applying the Public Trust Doctrine to protect the public’s rights and interests along the Nation’s shorelines and submerged lands.

In Chapter III, Mr. Slade provides an excellent analysis of a complex and thorny subject - the “taking issue” - and how the Public Trust Doctrine operates as a “background principle” of a state’s property law under Lucas v. South Carolina Coastal Council to shield the state against taking claims when the state asserts its paramount Trust Power to protect essential coastal wetlands and the public’s right of access along coastal beaches. In Chapter IV, Mr. Slade offers very practical pointers for all coastal property owners, prospective purchasers, real estate agents and real property attorneys concerning the ambulatory nature of property boundaries along the shorelines of the oceans and the Great Lakes, some of the inherent limitations of title insurance, and the intricacies of resolving title disputes over filled bottomlands and whether the state’s jus publicum interest has truly been extinguished.

I have known David Slade for over 20 years and I can think of no one better qualified to write this book. Not just because of his extensive involvement in the first two CSO public trust treatises, not just because of his impeccable legal credentials, but because he brings a sincere dedication and genuine passion for applying the Public Trust Doctrine to resolve real resource management conflicts and issues and to protect the Nation’s valuable coastal resources.

Based on my over 30 years of researching, writing about and applying the Public Trust Doctrine, I highly recommend this book to all State coastal resource managers, assistant attorneys general, local shoreline land use and zoning officials, environmental activists, coastal property owners, real estate brokers, real property attorneys and all concerned citizens. I am confident that this book will prove to be a most useful and practical handbook as the Public Trust Doctrine continues to evolve, and it will occupy an honored place in my legal library.

Chris A. Shafer
Lansing, Michigan
August 4, 2008

© 2009 - PTDIM, LLC - All Rights Reserved.