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July 16, 2012

Forum: State betrays public trust

Michigan's Great Lakes bottomlands and waters have been titled in the State under a public trust since joining the Union in 1837.

Based on U.S. and state Supreme Court decisions, this trust prohibits the state from transferring title or control of these waters and bottomlands to private persons for primarily private purposes.

When Gov. Rick Snyder recently signed the "beach grooming" bill, he and the Legislature transferred to waterfront landowners exclusive control to alter, grade, remove vegetation or otherwise change bottomlands belonging to the state and citizens.

For decades, no alteration or use of waters or bottomlands could take place because the Legislature had not authorized them. In the 1950s, the Legislature passed the Great Lakes Submerged Lands Act, authorizing limited use by Great Lakes riparian landowners.

Under this Act, landowners could only obtain a permit if the use would promote a public purpose and not impair the bottomlands, water, fish and fish habitat, or public uses thereof, such as swimming, boating, fishing, and recreation.

In the 1960s, the Michigan Supreme Court issued several important decisions reaffirming the Great Lakes Submerged Lands Act and declared the Great Lakes and bottomlands a "high, solemn and perpetual trust," making them off limits for private alteration and use unless expressly authorized by the State according to public trust principles.

The "beach grooming" bill takes what is public and hands it over to private landowners who can now unilaterally decide what to do about conditions created by changing Great Lakes water levels. While certain measures may be taken by landowners to prevent or remedy nuisance conditions caused by low water levels or invasive species, this does not mean the public's rights in our Great Lakes can or should be turned over to private interests.

The governor could and should have followed the law as the law demands, and required landowners to apply for authorization only after a careful review supported findings of a real concern in the public interest and no harm to water, fish, or bottomlands due to the landowner's proposed actions.

Without these findings and express authorization, the law is void, and the public trust violated. Expedience trumps principle with our current Legislature and Administration.

What message are the governor and Legislature sending to a thirsty world in the midst of climate change and looming water crisis?

Will our disregard for the public trust be viewed as a signal that these precious waters and bottomlands are up for grabs?

Fortunately, the flawed "beach grooming" bill should and can be fixed immediately by following the rules that apply to this important perpetual trust that protects the integrity of our Great Lakes now and for future generations.

We must amend the bill to require authorization and findings to assure this sacred trust in the Great Lakes has not been broken.

If the Legislature refuses to fix the bill, then we citizens must ask the courts to declare this disregard of the public trust void.

It is our right and duty to do so.

About the author: Jim Olson is a Traverse City-based environmental attorney and chair of the Flow for Water Public Trust Policy Center; on the web at: www.flowforwater.org

About the forum: The forum is a periodic column of opinion written by Record-Eagle readers in their areas of interest or expertise. Submissions of 500 words or less may be made by e-mailing letters@record-eagle.com. Please include biographical information and a photo.

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