News for October 2011

Giant Goldfish Threaten Michigan

In a new phase of the decades-long feud over the degradation of the Great Lakes, Michigan has sued Illinois again, this time over Michigan’s worries about “the threatened invasion of the Great Lakes by injurious fish species — resulting from the Lake Michigan diversion project created and as now maintained by Illinois, the [Metropolitan Water Reclamation District of Greater Chicago] District, and the [U.S. Army] Corps [of Engineers].” As an Original lawsuit, the case will be tried directly in the Supreme Court, if the Justices agree to allow it.

A fact sheet describing the background of the new fish controversy is here. A news release from the Michigan attorney general’s office is here.  The text of a motion for a preliminary injunction is here.  The lawsuit itself — technically, a motion to reopen a 1967  Supreme Court decree (amended in 1980) and to issue a new ruling on the fish migration question – can be found here. A 142-page appendix is here.

Michigan is one of several upper Midwest states that have returned to the Court several times to challenge the state of Illinois’ and Chicago’s dealings with sewage problems in waterways in and around the city. Michigan’s lawsuit in 1922 was designated No. 2 Original.  It has kept that number through reopenings in later years.  Whether it retains that number with its new challenge has not yet been determined by the Court.  (The Court has a new numbering system now for Original cases, with the numbers running serially rather than by Term.)

Beginning with the construction in the 1890s of a diversion canal, designed to keep Chicago’s sewage from flowing into Lake Michigan and contaminating the city’s water supply, the controversy over water flows in the upper Midwest has led to decrees by the Supreme Court in 1930, 1933, 1956, 1967 and 1980.  Illinois’ neighbors have complained that the diversion efforts have reduced their own water supplies, and have led to pollution of their waterways.

After the Court restricted the amounts of diverted water, it has allowed Illinois’ neighboring states to return if they had new or additional complaints.  Michigan is relying upon that continuing jurisdiction as a basis for its new lawsuit.  That is why its case is styled a plea for reopening an existing decree, with supplemental relief focused entirely on creating temporary and longer-term barriers to the migration of Asian carp species into Lake Michigan through connecting waterways.

The state’s basic new plea is that the Court declare Illinois and its partners in the diversion project to be creating a “public nuisance” by raising the risk that bighead and silver carp will make their way into the Great Lakes.  The state wants a permanent Court order requiring Illinois, Chicago’s sanitary district, and the Corps of Engineers to modify control facilities to ensure that the carp do not migrate into Lake Michigan, in particular.

Michigan’s lawsuit notes that federal wildlife officials have concluded that Asian carp, imported in the 1960s to control plant growth in fish farms along the Mississippi River, reproduce rapidly and have huge appetites that consume aquatic food that would normally be eaten by local species of fish.  They thus pose a significant risk, according to Michigan, to its fishing industry and to sport fishing.

Under the Court’s Rules, Illinois, the Chicago sanitary district, and the Corps of Engineers have 60 days to file opposition to the new challenge.

Posted: October 25th, 2011
Categories: Blog
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Monkey self-portrait copyright monkey

Techdirt asks: Can A Monkey License Its Copyrights To A News Agency? and David Post explains why the answer must be yes.   Apparently, David Slater, a well-known nature photographer, left his camera on the ground in an Indonesian national park, and a macaque monkey walked over and snapped a bunch of photos, including this (remarkable!) self-portrait:

MONKEY SELF-PORTRAIT

Nice bokeh.  Two of the photos in the set of monkey self-portraits bear a copyright notice: “Copyright Caters News Service.” Raising the odd but critical question: who assigned the copyright to the News Service? Slater? Maybe, but that can’t be a valid assignment, for the simple reason that he doesn’t own the copyright just because his camera was used to snap the photo.

That leaves the monkey.

The question is not an entirely ridiculous one — well, OK, it is a ridiculous one, but it is at least closely related to some very difficult and interesting copyright questions about the requirement (if there is one) that human creativity is a requirement for copyright to exist in a work of authorship — questions that come up in contexts ranging from the ridiculous (creations by psychics ostensibly “channeling” voices from beyond the grave, animal creations — monkey photos, elephant drawings, chimpanzee-created music) to the sublime (the copyright status of works “authored” by computer programs or Artifical Intelligence engines). Post’s friend and colleague Annemarie Bridy recently completed a very interesting draft of an article exploring these issues, soon to be published, entitled “Coding Creativity: Copyright and the Artificially Intelligent Author”).

 

Posted: October 24th, 2011
Categories: Copyright, Monkeys
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Don’t Need No Roads

Chest bump to the Tenth Circuit, chest bump to the 2001 roadless rule.  The biggest remaining swath of unprotected wild America is now, finally, protected.

The appeals court reinstated the rule, which blocks logging and road construction on 49 million acres of public forests. In a mammoth 120 page opinion, the court overturned a Wyoming federal court’s decision in 2008 that the rule illegally usurped congressional power to designate wilderness.The decision resolves a federal court split, but raises questions about Colorado’s proposed state-specific approach to managing national forests.

Clinton famously passed the rule in final hours of his administration, and the Bush administration spent eight years trying to unpass it. Hundreds of communities around the country get their water from roadless areas. Roadless forests are a source of clean water. They are often where our imperiled wildlife clings for survival. And, they are where millions of people go to recreate and experience wild country.

Colorado officials, you can be sure, are reviewing the decision carefully. Nothing in the decision appears to prohibit state-specific rules for protecting national forests. And Colorado natural resources officials have developed their own, nuanced, tiered-protection plan for protecting 4.2 million acres of roadless national forest in the state.

It would protect only about 13 percent of the 4.4 million acres of national forest in Colorado protected by the national rule. The Colorado proposal would make exceptions for mining, logging and ski-area expansion.

Today’s federal appeals court decision “does not preclude further litigation, which could continue to create uncertainty,” King said.

State officials, he said, will keep working to finalize the state-specific rule.

If the Tenth Circuit Court of Appeals had backed the 2008 Wyoming federal court’s ruling, federal land managers’ power to prevent logging and road-building would have been limited.

Attorneys for Wyoming and Colorado Mining Association argued that the Forest Service was trying to create de facto wilderness areas. The Wyoming court agreed with them, saying the roadless rule violated the 1964 Wilderness Act that requires congressional actions to create wilderness.

But the federal appeals judges reversed that, finding that the Wyoming court abused judicial discretion.

Colorado Mining Association President Stuart Sanderson said the industry is “disappointed with the ruling” and is “carefully evaluating next steps.” The decision “does not reflect a practical understanding of the impact that the Clinton Rule will have upon mining jobs in Colorado and the United States,” Sanderson said.

Practically speaking, without the roadless rule, protection of these national forests would be left to a patchwork management system that in the past resulted in millions of acres lost to logging, drilling and other industrial development. When Clinton officials in 2001 issued the Roadless Area Conservation Rule, it was designed to protect nearly 60 million acres, or about a third of the undeveloped U.S. Forest Service lands.

Bush administration officials in 2005 tried to replace that rule with a state-based approach to managing forests.

In 2009, the Ninth Circuit Court of Appeals in California upheld a lower court decision to reinstate the roadless rule for the majority of roadless areas. Obama administration officials then expressed support for a national rule and asked the Tenth Circuit Court of Appeals to uphold the national rule.

 

 

Posted: October 23rd, 2011
Categories: Blog, Forests
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Ryobi stuck with $1.5 million verdict

On Friday, the First Circuit upheld the $1.5 million damages award in Carlos Osorio table saw case.  Osorio, a carpenter untrained in the table saw, lost his hand to a Ryobi table saw after removing all of the saw’s safety features.  The decision was made because Ryobi had neglected to incorporate flesh-sensing brake technology into the saw. In light of the ruling, the Consumer Product Safety Commission voted to propose a tablesaw safety standard that would mandate that saws all sense fingers and retract their blades instantly.

Problem is, only one man has flesh-sensing brake technology.  His patent is so broadly worded that no one else has been able to develop a comparable technology, and his licensing terms have made it impossible for competitors to adopt his invention without pricing their saws out of the market,.  The implications of this ruling for the industry are massive.

In 2004, SawStop’s first cabinet saw hit the market, it offered an amazing and unprecedented safety feature: a blade that instantly senses contact with flesh and snaps out of sight before any real damage can be done. The inventor, Dr. Steve Gass, had tamed carpentry’s most dangerous tool, an amazing feat in itself.  On top of that, unlike thousands of other inventors, Gass actually brought his product to market–himself. Since then, Gass has introduced smaller models of the saw, and sold over 28,000 machines in all.

Osorio suffered a hand injury while he operated a Ryobi Model BTS 15 benchtop table saw (BTS 15). Osorio sued Ryobi, the manufacturer, claiming negligence and breach of the implied warranty of merchantability. At trial, Osorio argued that the BTS 15 was unacceptably dangerous due to defective design. The jury found for Osorio, and Ryobi appealed.

Among its appellate claims, Ryobi argued that Osorio did not present sufficient evidence to prove a design defect. Ryobi argued that Osorio failed to meet a prima facie obligation to present a reasonable alternative design that accounted for the weight, cost, and other features particular to the BTS 15.

Osorio’s defective design theory largely relied on the testimony of his expert witness, Dr. Gass himself.  Dr. Gass testified that he had offered to license SawStop’s flesh-detection technology to Ryobi, but the company was not interested.  Osorio offered a second expert, Robert Holt, to support Dr. Gass’ testimony. Holt accepted Dr. Gass’ claim that SawStop Technology would add about $150 to the price of the table saw. (For saw-pricing context, Osorio’s employer purchased the BTS 15 for $179.)

Ryobi insisted that Osorio’s design, with SawStop, falls short of being a viable alternative.

The First Circuit disagreed with Ryobi, finding that neither the added cost nor the increased weight of Osorio’s proposed alternative design were fatal to his case as a matter of law. Ultimately, the First Circuit determined that it was the jury’s job to determine whether the relevant factors suggest defective design.

It is surprising that Ryobi appealed on the sufficiency of Osorio’s defective design evidence, but didn’t challenge Dr. Gass’ expert classification. While jurors determine how much weight to afford to testimony, it seems unusual that a court would permit expert classification for someone who clearly has a stake in the outcome of the case.

 

Posted: October 17th, 2011
Categories: Blog, Wood
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Beachcomber’s “Unauthorized Removal” of Floaties Now Authorized

A Norfolk U.S. District Court reverses a criminal conviction for “unauthorized removal” of personal property, for a woman who cut a length of rope from a beached fishing vessel at Chincoteague National Wildlife Refuge, and took a life preserver from the boat, the Freda Marie, that was floating nearby.
Tait v. U.S. (VLW 011-3-037) (31 pp.)

Posted: October 16th, 2011
Categories: Virginia Cases
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Microeconomics of Green Jobs

Does a particular green policy create more jobs than it destroys?

A policy is green if it lowers our use of resources and/or environmental impact.  If a green policy is also a net creator of jobs, everyone should agree that it is a good policy. It should be implemented.  End of story.  Green policies which destroy jobs, on the other hand, will require further analysis as to whether the environmental and health benefits outweigh the economic losses.  That’s a question which requires putting relative value on various benefits, and cannot be resolved purely by economic reasoning.  But  the first point bears repeating: if a green policy is also net job creator, everyone should agree that it is a good policy and should be implemented.  Identifying those policies is simple.

Which Policies are Net Job Creators?

There are two ways a policy can increase or decrease economic activity and hence number of jobs.

  1. Jobs can be created or destroyed by substituting labor for capital, energy, and/or other resources in production.
  2. If a policy increases economic efficiency, it will increase economic activity and create jobs. If it decreases economic efficiency, it will reduce economic activity and destroy jobs.

Substituting Labor for Energy or Capital

Marginal rate of Technical Substitution.

Image Source: Wikipedia

A basic tenet of microeconomics is that there is a tradeoff between capital, labor and natural resources such as energy in the production function. In particular, you can substitute capital for labor (by mechanization) or labor for capital (by using shovels and picks instead of bulldozers.) Now add energy into the mix: you can substitute fossil energy for either capital or labor to attain the same production.

For example, a hybrid car.  It substitutes capital and resources (in the form of an electric motor and batteries) for energy (less fuel consumed to do the same work.) A bus substitutes labor (the bus driver) for capital, resources and energy (lots of cars and fuel consumed.) A green building substitutes labor (better architecture/construction) and some resources (extra insulation) for energy.

From this perspective, any policy that promotes the substitution of labor for energy will create green jobs, since you get more work and less energy consumed. Shifting people out of their cars and onto mass transit will create jobs because there will have to be drivers and people managing the transit system, where before no one was paid to drive. To the extent that the transit system can be paid for out of the reduced fuel costs and car ownership costs of the former drivers turned riders, the number of jobs created will be a pure economic gain.

Multiplier Effects

Which brings us to the other major potential source of jobs from green policies: economic multiplier effects.

To the extent that green policies improve economic efficiency by overcoming the barriers to cost effective green solutions, these policies will result in greater economic activity, and hence more jobs. The strongest critique of “green jobs” initiatives is that they simply shift economic activity from out-of-favor “brown” sectors to more politically correct green ones. Yet when a policy improves economic efficiency, it does not just shift jobs and capital around in the economy: it creates economic activity and jobs.

Not all green policies improve economic efficiency. For example, subsidies for not-yet-economic types of renewable energy like wave power and solar installations may be justifiable on the grounds that they are helping to promote needed future technologies, but they probably come at a net cost to near-term jobs (even if they may create more jobs in the long term by allowing the creation of new types of businesses.)

On the other hand, policies to promote energy efficiency will be strong net creators of jobs, because the cost of energy efficiency is typically only a fraction of the cost of the energy saved. The very existence of opportunities to save significantly on energy bills at modest cost is proof that the energy market is inefficient. In an efficient market, all such opportunities would have already been taken.

After the energy efficiency measure has been installed, the cost savings can be used for useful economic activity, rather than wasted on unneeded fuel. This money will then spur additional activity and stimulate jobs.

Using Fossil Resources to Stimulate Growth is Like Stimulating Growth With Debt

Short term jobs (green or otherwise) should not be the only consideration when forming policy. A short term focus on jobs today can end up doing long term economic harm. For instance, if we spend too much borrowed money to create jobs today, the long term drag on the economy caused by paying back the debt will leave everyone worse off.

Economic growth fueled by the extraction of non-renewable resources — natural gas, oil, coal — is no different from economic growth fueled by debt. When we extract these resources and use them, we increase economic activity today, but their non-renewable nature means that we lose the opportunity to extract and use them tomorrow. Hence, the economic stimulus today comes at the cost of a recession tomorrow, and the future recession will generally be larger than today’s stimulus, since improving technology should allow us to get more benefit from each unit of resource in the future.

Using renewable resources to stimulate growth does not have this problem: Tapping the wind or the sun for energy today does nothing to diminish the wind or sun tomorrow. Hence, to the extent a green job relies on renewable resources and a brown job relies on fossil resources, the green job should be preferred every time, even before taking the environmental benefits into account.

Policy Implications

If we only consider job creation, the focus on policy should be on creating jobs and economic activity, with a preference for green jobs, since those impose less of a cost on future economic activity than jobs based on extractive industries.

Green jobs can be created either by substituting labor for energy and capital, or by reducing energy waste so that the money previously wasted on energy can be put to more productive uses. For policy makers who wish to create green jobs, the implications are clear.

Green job programs should focus on two types of opportunities:

  1. Industries where labor can usefully be substituted for energy or capital, like mass transit.
  2. Breaking down the barriers to energy efficiency which can stimulate economic activity by allowing money that would otherwise have been wasted.

The converse is also true: if the goal is to create jobs and stimulate economic activity, subsidies and other policies which encourage the substitution of capital and energy for labor should be ended, especially those subsidies which encourage the extraction of non-renewable resources which only create jobs today at the cost of future jobs.

The most cost effective policies for creating jobs will be those that break down the barriers to the adoption of cost-effective green technologies, especially energy efficiency. Ironically, most energy subsidies have gone into capital intensive sectors such as nuclear and extractive sectors such as oil and gas.

A very cost effective way to produce jobs would then simply be to remove subsidies from fossil fuels and nuclear energy and redirect them towards the most cost effective clean technologies.

Increased support for and promotion of public transit could do much more to reduce our dependence on imported oil than support for domestic natural gas drilling (which will only make us more dependent on imported oil in the future by using up domestic resources sooner) while also creating jobs.

Meanwhile, energy efficiency programs such as cash for caulkers can cost-effectively reduce energy bills and free up money for other sorts of consumption while also creating jobs in the depressed housing sector.

Posted: October 16th, 2011
Categories: Climate change, Employment, Energy
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How to be a musician now that music is free

 

Musicians! Check out this survey from the Future of Music Coalition.  The study tracks artist revenue streams in the post-Napster era, and captures the ways in which US musicians generate income from songs, recordings, or performances.

Obviously, this is not your grandpa’s music industry.  The past ten years transformed the ways in which music created and distributed. The advent of streaming services and webcasting stations eliminated the cost barriers to the distribution and sale of music, and loads of new platforms and technologies — from Bandcamp to blogs to Twitter feeds — now help musicians connect with fans.

The press is quick to categorize these structural changes as positive improvements for musicians, particularly when compared with the music industry of the past — remember FM radio?  While it’s true that these changes improved musicians’ access to the marketplace, they have not necessarily improved musicians ability to generate revenue from their work.  Almost all analyses of the effects of these changes rest purely on assumptions that they have improved musicians’ bottom lines, or on top-level assessments of the music industry writ large, based on traditional metrics: number of albums sold, number of spins on radio, even stock price valuations.

The results provide some insight into complex nature of being a musician in the 21st century, particularly the financial realities of copyrights, licensing, and royalties.

Posted: October 10th, 2011
Categories: Copyright, Music Law
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Elf Off the Shelf back on the shelf

A new copyright and trademark parody case, CCA and B, LLC v. F + W Media, Inc. (N.D. Ga. Sept. 22, 2011), finds that the parody Elf off the Shelf  likely does not infringe the copyright or trademark in plaintiff’s Elf on the Shelf.

Posted: October 8th, 2011
Categories: Copyright
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Sex, Drugs, and the Public Trust

Let’s talk about this.  From the beginning, there was no private ownership of water.  Under Roman law, tidewaters (like rivers and seas) and submerged lands (stream beds and shoreline) were community property, held in trust by the state for the benefit of the public.  This approach to water management endured for most of human history.  Consider, for example, 13th century Spain.  Las Siete Partidas, the laws of Spain set forth by Alfonso the Wise, recognized public rights in navigable waterways.  In England, this principle evolved into the common law public trust doctrine: the king held all waterways and submerged lands, not for himself, but rather “as trustee of a public trust for the benefit of the people” for uses like commerce, boating, and fishing.

After the American Revolution, each of the original states succeeded to this sovereign right and duty.  Each became trustee of the tide and submerged lands within its boundaries for the common use of the people.  Subsequently admitted states, like California, have the same sovereign rights under the equal footing doctrine.   That is, title to lands under navigable waters is held by the state in trust for the public good.  These lands are not alienable, as the public’s interest in them cannot be extinguished.

II. Purpose of the Public Trust

The Supreme Court described the nature of a state’s title to its tide and submerged lands in 1892, and although courts have reviewed tidelands trust issues many times since then, the Court’s premise remains fundamentally unchanged: a state’s title to its tide and submerged lands is different from that to the lands it holds for sale.  “It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing” free from obstruction or interference from private parties.  Illinois Central R.R. Co. v Illinois (1892) 146 U.S. 387, 452.  In other words, the public trust is an affirmation of the duty of the state to protect the public’s common uses of its waterways.

Are what are these common uses?  Traditionally, public trust uses were limited to water-bourne commerce, navigation, and fishing.  In more recent years, however, the California Supreme Court has said that the public trust embraces the right of the public to use the navigable waters of the state for bathing, swimming, boating, and general recreational purposes.  It is flexible enough to accommodate changing public needs, such as the preservation of the lands in their natural state for scientific study, as open space and as wildlife habitat.  The administrator of the public trust “is not burdened with an outmoded classification favoring one mode of utilization over another.”

The state legislature, acting within the confines of the common law public trust doctrine, is the ultimate administrator of the trust and often may be the ultimate arbiter of permissible uses of trust lands.  All uses, including those specifically authorized by the Legislature, must take into account the overarching principle of the public trust doctrine that trust lands belong to the public and are to be used to promote public rather than exclusively private purposes.  For this reason, the legislature cannot commit trust lands to private development because it would be abdicating its duty as a trustee.   Within these confines, however, the legislature has considerable discretion.

 The legislature speaks to the issue of permissible uses when it assigns trust lands to local governments.  Statutory trust grants are not all the same–some authorize the construction of ports and airports, others allow only recreational uses and still others allow a broad range of uses.

A further and often complicating factor is that granted and ungranted lands already may have been developed for particular trust uses that are incompatible with other trust uses or may have become antiquated. Some tidelands have been dedicated exclusively to industrial port uses, for example, and in these areas, recreational uses, even if also authorized by the trust grant, may be incompatible.  Similarly, tidelands set aside for public beaches may not be suitable for construction of a cannery, even though a cannery may be an acceptable trust use.  Piers, wharves and warehouses that once served commercial

navigation but no longer can serve modern container shipping may have to be removed or converted to a more productive trust use.  Historic public trust uses may have been replaced by new technologies.  Antiquated structures on the waterfront may be an impediment rather than a magnet for public access and use of the waters.  Public trust uses may and often do

conflict with one another.  The state and local tidelands grantees, as administrators of their

 

 

10Illinois Central Railroad v. Illinois, supra, at 452-53.

 

respective public trust lands, are charged with choosing among these conflicting uses, with the Legislature as the ultimate arbiter of their choices.

For all these reasons, a list of uses or a list of cases without more may not be as useful as an analysis of public trust law applied to a specific factual situation.

III. The Leasing of Tidelands

 

 

A few principles established by the courts are instructive in analyzing under the public trust doctrine the leasing of public trust lands for particular uses.  For example, it was settled long ago that tidelands granted in trust to local entities may be leased and improved if the leases and improvements promote uses authorized by the statutory trust grant and the public trust.  Leases for the construction of wharves and warehouses and for

railroad uses, i.e., structures that directly promote port developme nt, were approved early in the 20th century.11   Later, leases for structures incidental to the promotion of port commerce, such as the Port of Oakland’s convention center, were held to be valid because although they did not directly support port business, they encouraged trade, shipping, and commercial associations to become familiar with the port and its assets.12   Visitor-serving facilities, such as restaurants, hotels, shops, and parking areas, were also approved as

appropriate uses because as places of public accommodation, they allow broad public

 

 

 

 

11San Pedro etc. R.R. Co. v. Hamilton (1911) 161 Cal. 610; Koyner v. Miner (1916) 172

Cal. 448; Oakland v. Larue Wharf & Warehouse Co. (1918) 179 Cal. 207; City of Oakland v. Williams (1929) 206 Cal. 315.

 

12Haggerty v. City of Oakland (1958) 161 Cal.App.2d 407, 413-414.

 

access to the tidelands and, therefore, enhance the public’s enjoyment of these lands historically set apart for their benefit.13

These cases provide three guidelines for achieving compliance with the public trust when leasing tidelands for construction of permanent structures to serve a lessee’s development project:  (1) the structure must directly promote uses authorized by the statutory trust grant and trust law generally, (2) the structure must be incidental to the promotion of such uses, or (3) the structure must accommodate or enhance the public’s enjoyment of the trust lands.  Nonetheless, when considering what constitutes a trust use, it is critical to keep in mind the following counsel from the California Supreme Court: The objective of the public trust is always evolving so that a trustee is not burdened with outmoded classifications favoring the original and traditional triad of commerce, navigation

and fisheries over those uses encompassing changing public needs.14

 

 

 

 

 

 

 

 

 

 

 

IV. Promotion of Trust Uses and Public Enjoyment of Trust Lands

 

 

 

 

 

 

13Id. at p. 414; Martin v. Smith (1960) 184 Cal.App.2d 571, 577-78.

 

14National Audubon Society v. Superior Court, supra, at p. 434.

 

Installations not directly connected with water-related commerce are appropriate trust uses when they must be located on, over or adjacent to water to accommodate or

foster commercial enterprises.  Examples include oil production facilities, freeway bridges and nuclear power plants.15   Hotels, restaurants, shops and parking areas are appropriate because they accommodate or enhance the public’s ability to enjoy tide and submerged lands and navigable waterways.  The tidelands trust is intended to promote rather than serve as an impediment to essential commercial services benefiting the people and the ability of the people to enjoy trust lands.16

Nevertheless, the essential trust pur poses have always been, and remain, water

 

 

related, and the essential obligation of the state is to manage the tidelands in order to implement and facilitate those trust purposes for all of the people of the state.17

Therefore, uses that do not accommodate, promote, foster or enhance the statewide public’s need for essential commercial services or their enjoyment tidelands are not appropriate uses for public trust lands.  These would include commercial installations that could as easily be sited on uplands and strictly local or “neighborhood-serving” uses that confer no significant benefit to Californians statewide.  Examples may include hospitals,

supermarkets, department stores, and local government buildings and private office

 

 

 

15See Boone v. Kingsbury (1928) 206 Cal.148, 183; Colberg, Inc. v. State of California ex rel. Dept. Pub. Work, supra, at pp. 421-22; and Carstens v. California Coastal Com. (1986) 182

Cal.App.3d 277, 289.

 

16Carstens v. California Coastal Com., supra, at p. 289.

 

buildings that serve general  rather than specifically trust-related functions.

 

 

V. Mixed-Use Developments

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

17Joseph L. Sax, AThe Public Trust in Stormy Western Waters,@ October 1997.

 

Mixed-use development proposals for filled and unfilled tide and submerged lands have generally consisted of several structures, including non-trust use structures or structures where only the ground floor contains a trust use.  While mixed-use developments on tidelands may provide a stable population base for the development, may draw the public to the development, or may yield the financing to pay for the trust uses to be included in the development, they ought not be approved as consistent with statutory trust grants and the public trust for these reasons.  These reasons simply make the development financially attractive to a developer.  Projects must have a connection to water-related activities that provide benefits to the public statewide, which is the hallmark of the public trust doctrine. Failure to achieve this goal, simply to make a development financially attractive, sacrifices public benefit for private or purely local advantage.  A mixed-use development may not be compatible with the public trust, not because it may contain some non-trust elements, but

because it promotes a “commercial enterprise unaffected by a public use”18  rather than

 

promoting, fostering, accommodating or enhancing a public trust use.19   That use, however, need not be restricted to the traditional triad of commerce, navigation and fishing.  It is an evolving use that is responsive to changing public needs for trust lands and for the benefits

 

 

18City of Long Beach v. Morse (1947) 31 Cal.2d 254, 261.

 

19Haggerty v. City of Oakland, supra, at pp. 413-14.

 

these lands provide.20

 

Moreover, commercial enterprises without a statewide public trust use may violate the terms of statutory trust grants.  Typically, grants allow tidelands to be leased, but only for purposes “consistent with the trust upon which said lands are held.”  This term is not equivalent to “not required for trust uses” or “not interfering with trust uses.”  Since leases of tidelands must be consistent with statutory trust grant purposes, leases which expressly contemplate the promotion of non-trust uses rather than trust uses would not comply with

the terms of the trust grants.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

20National Audubon Society v. Superior Court, supra, at p. 434.

 

For these reasons, non-trust uses on tidelands, whether considered separately or part of a mixed-use development, are not mitigable.  That is, unlike some environmental

contexts where developments with harmful impacts may be approved so long as the impacts are appropriately mitigated by the developer, in the tidelands trust context, mitigation of a non-trust use has never been recognized by the courts.  To the contrary, the California Supreme Court has said that just as the state is prohibited from selling its tidelands, it is similarly prohibited from freeing tidelands from the trust and dedicating them to other uses

while they remain useable for or susceptible of being used for water-related activities.21

 

 

VI.         Incidental Non-Trust Use

All structures built on tide and submerged lands should have as their main purpose the furtherance of a public trust use.  Any structure designed or used primarily for a non- trust purpose would be suspect.  Mixed-use development proposals, however, frequently justify non-trust uses as “incidental” to the entire project.  The only published case in California in which a non-trust use of tidelands has been allowed focused on the fact that the real or main purpose of the structure was a public trust use and that the non-trust use would be incidental to the main purpose of the structure.22   In this context, the court noted

that because the real or main purpose of the structure was to promote public trust uses, non- trust groups could also use the facility, but the non-trust uses must remain incidental to the

 

 

 

 

21Atwood v. Hammond (1935) 4 Cal.2d 31, 42-43.

 

22Haggerty v. City of Oakland, supra, at p. 413.

 

main purpose of the structure.23   This is the state of the law, and it is supported by good policy reasons as well.  If the test for whether a non-trust use i s incidental to the main purpose of a development were not applied on a structure-by-structure basis, pressure for more dense coastal development may increase as developers seek to maximize the square feet of allowable non-trust uses.  Disputes may arise as to how to calculate the square footage attributable to the proper trust uses versus non-trust uses, with open waterways and

parking garages likely being the dominant trust uses and structures being devoted to non- trust uses.

It is beyond contention that the state cannot grant tidelands free of the trust merely because the grant serves some public purpose, such as increasing tax revenues or because the grantee might put the property to a commercial use.24   The same reasoning applies to putting tidelands to enduring non-trust uses by building structures on them.  Accordingly, the only enduring non-trust uses that may be made of tidelands without specific legislative authorization are those incidental to the main trust purpose applied on a structure-by- structure basis.  Each structure in a mixed-use development on tidelands must have as its primary purpose an appropriate public trust use.  If its real or main purpose is a trust use, portions of the structure not needed for trust purposes may be leased temporarily to non- trust tenants, provided that the non-trust use is incidental to the main purpose of the

structure.

 

 

 

23Ibid.

 

VII. The Role of the Legislature

 

 

The Legislature is the representative of all the people and, subject to judicial review, is the ultimate arbiter of uses to which public trust lands may be put.  The Legislature may create, alter, amend, modify, or revoke a trust grant so that the tidelands are administered in a manner most suitable to the needs of the people of the state.25   The Legislature has the power to authorize the non-trust use of tidelands.  It has done so rarely, and then on a case- specific basis.26   Many of its actions have been a recognition of incidental non-trust uses or of a use that must be located on the tidelands. When these legislative actions have been challenged in court, the courts, understandably, have been very deferential, upholding the actions and the findings supporting them.27

The Legislature has provided a statutory framework for the leasing of tidelands for

non-trust uses by the cities of Long Beach and San Francisco grounded on findings that the tidelands are not required for (San Francisco) or not required for and will not interfere

 

 

 

 

 

 

 

24National Audubon Society v. Superior Court, supra, at p. 440.

 

25City of Coronado v. San Diego Unified Port District (1964) 227 Cal.App.2d 455, 474.

 

26For example, in Chapter 728, Statutes of 1994, the Legislature authorized tidelands in

Newport Beach to continue to be put to non-trust uses for a limited term after it was determined that the tidelands had been erroneously characterized and treated as uplands by the city due to incorrect placement of the tidelands boundary.

 

27See, e.g., Boone v. Kingsbury, supra, at p. 183 and City of Coronado v. San Diego

Unified Port District, supra, at pp. 474-75; but see Mallon v. City of Long Beach (1955) 44

Cal.2d 199, 206-07, 212.

 

with (Long Beach) the uses and purposes of the granting statute.28   Where, as in these two statutes, the Legislature has authorized in general terms the use of tidelands for non-trust purposes, the statutes’ provisions must be interpreted so as to be consistent with the paramount rights of commerce, navigation, fishery, recreation and environmental protection.  This means that the tidelands may be devoted to purposes unrelated to the common law public trust to the extent that these purposes are incidental to and

accommodate projects that must be located on, over or adjacent to the tidelands.  These non-trust uses are not unlimited, for there are limits on the Legislature’s authority to free tidelands from trust use restrictions.29

To ensure that the exercise of the Long Beach and San Francisco statutes is

 

 

consistent with the common law public trust, the tidelands to be leased for non-trust uses must have been filled and reclaimed and no longer be tidelands or submerged lands and must be leased for a limited term. The space occupied by the non-trust use, whether measured by the percentage of the land area or the percentage of the structure, should be relatively small. Finally, any structure with a non-trust use should be compatible with the overall project. Findings such as these are necessary because legislative authorizations to devote substantial portions of tidelands to long-term non-trust uses have generally been considered by the

 

 

 

 

 

28Ch. 1560, Stats. 1959; Ch. 422, Stats. 1975. These statutes also provide for, inter alia, the lease revenues to be used to further trust uses and purposes.

 

29Illinois Central R.R. Co. v. Illinois, supra, at pp. 452-54.

 

courts as tantamount to alienation.30

 

 

In several out-of-state cases, specific, express legislative authorizations of

 

 

incidental leasing of publicly-financed office building space to private tenants solely for the purpose of producing revenue have been subject to close judicial scrutiny, although they did not involve tidelands trust use restrictions.31   One case involved construction of an international trade center at Baltimore’s Inner Harbor with public financing where

legislation expressly permitted portions of the structure to be leased to private tenants for the production of income.  Another was a condemnation case where the statute authorizing the New York Port Authority to acquire a site on which to build the World Trade Center was challenged on the basis that it allowed portions of the new structure to be used for no other purpose than the raising of revenue.   In both cases, opponents of the projects argued that a publicly financed office building should not be permitted to have any private commercial tenants even though the respective legislatures had expressly allowed incidental private use of each building.  The state courts in both Maryland and New York held that so long as the primary purpose of the office building was for maritime purposes connected with the port,

legislation authorizing the leasing to private tenants was valid.32   Although both cases

 

 

involve challenges to financing and condemnation statutes and do not involve the public

 

 

 

30Atwood v. Hammond, supra, at p. 42; see also Illinois Central R.R. Co. v. Illinois, supra,

at pp. 454-53.

 

31Lerch v. Maryland Port Authority (1965) 240 Md. 438; Courtesy Sandwich Shop, Inc. v. Port of New York Authority (1963) 12 N.Y.2d 379.

 

32Ibid.

 

trust, they are instructive because they demonstrate the importance to the courts, even in

 

 

the context of public financing and condemnation, that when a portion of a structure is to be leased for the purpose of raising revenues to offset expenses, this incidental non-public leasing must have been legislatively authorized.

VIII. Exchanges of Lands

 

 

Situations where a local government or a private party acquires a right to use former trust property free of trust restrictions are r are.33   In order for such a right to be valid, the Legislature must have intended to grant the right free of the trust and the grant must serve the purpose of the trust.  Public Resources Code section 6307 is an example of the rare situation where abandonment of the public trust is consistent with the purposes of the trust. Section 6307 authorizes the Commission to exchange lands of equal value, whether filled or unfilled, whenever it finds that it is “in the best interests of the state, for the improvement of navigation, aid in reclamation, for flood control protection, or to enhance the configuration of the shoreline for the improvement of the water and upland, on

navigable rivers, sloughs, streams, lakes, bays, estuaries, inlets, or straits, and that it will not substantially interfere with the right of navigation and fishing in the waters involved.” The lands exchanged may be improved, filled and reclaimed by the grantee, and upon adoption by the Commission of a resolution finding that such lands (1) have been improved, filled, and

reclaimed, and (2) have thereby been excluded from the public channels and are no longer

 

 

 

 

33National Audubon Society v. Superior Court, supra, at p. 440.

 

available or useful or susceptible of being used for navigation and fishing, and (3) are no longer in fact tidelands and submerged lands, the lands are thereupon free from the public trust.  The grantee may thereafter make any use of the lands, free of trust restrictions.

In order for such an exchange of lands to take place, the Commission must find that the lands to be exchanged are no longer available or useful or susceptible of being used for navigation and fishing, taking into consideration whether adjacent lands remaining subject to the trust are sufficient for public access and future trust needs; that non-trust use of the

lands to be freed of the public trust will not interfere with the public’s use of adjacent trust lands; and that the lands that will be received by the state in the exchange not only are of equal, or greater, monetary value but also have value to the tidelands trust, since they will take on the status of public trust lands after the exchange.  Only then can the Commission find that the transaction is in the best interests of the state, that the exchange of lands will promote the public trust and that it will not result in any substantial interference with the public interest in the lands and waters remaining.

Posted: October 7th, 2011
Categories: Endangered Species Act, Energy, Property
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Knox Out!

After 11 hours of deliberation, an Italian jury overturned the conviction of Amanda Knox and Raffaele Sollecito in the murder of Meredith Kircher, Knox’s former roommate.  Knox testified in her own defense in the appeal (which is allowed in Italy; the appellate court can revisit the facts). She told the eight-member jury, in Italian, “I’m not a promiscuous vamp. I’m not violent … I have not killed, I have not raped, I was not there, I was not present.”

Congratulations to Knox, who is now free to sell the movie rights.

Posted: October 4th, 2011
Categories: Blog
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