The Public Trust in Surface Waterways and Submerged Lands of the Great Lakes States

The modern public trust doctrine compels each Great Lakes state to protect the sustainable future of the Lakes and to preserve traditional public uses. At the same time, the doctrine constrains the states’ powers to allow exploitation of trust resources. This Article provides a brief historical overview of the public trust doctrine in waterways and their submerged lands. It next explores how the eight Great Lakes states have applied the doctrine, discusses the surprising number of differences in the doctrine’s development from state to state, and provides comparison charts. After analyzing the variety of approaches used by the eight states to implement the doctrine, the Article builds upon some of those approaches to craft a new model.

The Article proposes three levels of analysis for applying the trust doctrine in the Great Lakes states. The first level addresses the geographic scope of the doctrine in waterways. The second level analyzes public rights of access to waterways. The third level examines which uses of the waterways should be protected and how impairments of those uses should be remedied. The Article offers new tests at each level for implementing the trust.

While the Article argues for an expansive application of the public trust doctrine in the Great Lakes, the Article also reviews a number of arguments about the nature of the doctrine and whether it is compatible with private property rights. Finally, the Article concludes that, if ever there was a natural system on earth so fundamental to a region and worthy of protection under a public trust, it is the Great Lakes system.