08/01/2024
Well said, DEEP:
SPOTLIGHTED COASTAL RESOURCE: The Public Trust Area
Connecticut has one of the highest coastal population densities in the nation, which has led to the development and private ownership of, and a shortage of public access to, most of our shoreline. One avenue that ensures the public has a protected right to shoreline access is the public trust area, which has been upheld across the world for centuries by the Public Trust Doctrine.
The Public Trust Doctrine, which grants the public rights to access the submerged lands of navigable waters, has origins dating back to Roman civil law under the reign of Emperor Justinian in the sixth century A.D., with roots as far back as the natural law of Greek philosophers in the second century. A section of Book II of the Institutes of Justinian remains the foundation of today’s Public Trust Doctrine:
“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.”
English common law would adopt the Public Trust Doctrine from Roman civil law, recognizing the special nature of tidelands and navigable waters and giving them protection under the king’s name and ownership for all English subjects. This would later transfer to the American Colonies and be upheld by the Thirteen Colonies after the American Revolution. The Public Trust Doctrine continues to be one of the most important doctrines of property law in the United States.
While public trust lands are generally understood as the lands beneath tidal and navigable waters with the landward boundary being the mean high water line, there is some variation in how states interpret the public’s rights in these areas. For instance, our neighbor to the east, Rhode Island, gives the public a larger public trust area by allowing the public access rights up to 10 feet landward of the mean high tide line. Conversely, our neighbor to the north, Massachusetts, only recognizes the rights to fish, fowl (hunt birds), and navigate, including the movement, loading, and unloading of watercraft. Massachusetts courts have repeatedly made clear that the public does not have the right to stroll, sunbathe, or engage in recreation outside of fishing, fowling, and navigation on tidelands that are privately owned, as the state allows private property ownership up to the low tide line.
Here in Connecticut, the public trust area includes submerged lands and waters waterward of the mean high water line in tidal, coastal, or navigable waters of the state. This determination has been upheld through a number of state Supreme Court cases dating back to the earliest days of our nation. On land, the public trust area generally extends from the water up to a prominent water mark or debris line that indicates the mean high water line. The public trust area helps to alleviate the impacts of roadblocks to coastal public access. Connecticut residents have the right to fish, shellfish, boat, hunt, bathe, gather seaweed, and pass and repass freely in the public trust area, as private property in almost all cases ends at the mean high water line.
Activists have historically used the public trust area to bring attention to coastal access issues and educate the public on their rights in the public trust area. By the early 1970s, almost all of Connecticut's coastline was privately owned or restricted to town residents only, with the exception being a few miles of public beach at three state beaches. In an effort to bring attention to the lack of public access, activist Ned Coll famously used the public trust area to walk the entire length of the Connecticut coastline, which led to several confrontations with hostile property owners who attempted to deny him access to the shores adjacent to their land and in one case earned him a black eye. In another act to publicize privatization of Connecticut’s coast in 1974, Coll arranged for a parachutist carrying a banner reading "Free America's Beaches" to land in the water near the Madison Beach Club, as Coll and a group of 65 mothers, children, and volunteers hopped off three boats and came ashore. Coll triumphantly planted an American flag in the sand as the group enjoyed the public beach below the mean high water line.
As mentioned in the preceding article, Connecticut’s lighthouses are important feats of engineering and relics of our state's maritime history. However, they also provide examples of limited public access to Connecitcut's historic resources, especially for people eager to visit and photograph these scenic lighthouses. While the public trust area can be used to navigate around some of these land access issues, long stretches of private upland along the shore with no public access sites can obstruct the public from effectively using their rights to pass and recreate in the public trust area and to find closer views of the lighthouses. However, in cases where a nearby public access site gives residents a place to park and access the public trust area, a closer view of one of Connecticut's distinctive lighthouses that would be otherwise impossible to access from inland roads may be a short walk or paddle away. And in cases where municipalities, whether independently or through partnerships with the Coast Guard or non-profits, work to provide public access at or near a lighthouse, these sites become iconic destinations on our coast where people can come to enjoy both the historic value of the lights and the recreational opportunity to experience the vastness of Long Island Sound, which the Public Trust Doctrine preserves as belonging to everyone.
The DEEP Land and Water Resources Division is committed to preserving and expanding public access wherever possible, and realizing that goal becomes much easier when citizens, non-profits, and municipal officials are willing to come together to form a broad coalition and create change in the spirit of Ned Coll's lifelong fight for public access to our coastline. The greater the area accessible to the public, the more we can exercise our rights within the public trust area.
