The Boston Waterfront and the Public Trust Doctrine: The Eroding Public Interest in Tidelands.

• Author: Formoza, Mikayla

"Well into the twenty-first century, the ancient public trust doctrine that protects critical public rights to the Massachusetts tidal shoreline below the historic high water line remains legally controlling but is persistently challenged by private waterfront developers." (1)

1. INTRODUCTION

   The Boston waterfront is home to a number of hotels, restaurants, and apartment buildings. (2) Although this waterfront property appears to be private land owned by developers, the public still has access to, and an interest in, this shoreline via the public trust doctrine. (3) Nevertheless, the waterfront's increasing private redevelopment, coupled with an eroding coastline due to climate change, calls into question whether the Commonwealth is adequately preserving the public's access to the waterfront. (4)

   Shorelines across the United States are subject to a form of the public trust doctrine, which allows certain public areas, typically along shorelines, to have public access and governmental protection. (5) Throughout most of the United States, the public has access to all tidelands, which are the areas of land along the shore between the high tide and low tide line. (6) Massachusetts, however, is unique in that the public had unencumbered access all the way up to the low tide line until the Colonial Ordinances of 1641-1647 (Colonial Ordinances), which allowed private ownership of the tidelands. (7) Because the Colonial Ordinances permitted private ownership of Massachusetts's shorelines and tidelands, private developers owned waterfront property in fee simple, despite the public trust doctrine providing for public access to tidelands. (8) The new private ownership interests, however, did also create a restriction that prevented private owners from excluding the public from using the tidelands for navigation, fishing, and fowling. (9) The expansion of private ownership rights created tension between public and private interests, and that tension is reflected in proposed legislative amendments to Chapter 91 of the General Laws of Massachusetts (Waterways Act)--the controlling statute for tidelands. (10)

   Since the Colonial Ordinances, Massachusetts has attempted to reconcile the public's rights regarding tidelands with society's changing expectations of its ability to use and have access to the waterfront. (11) After the Massachusetts Supreme Judicial Court (SJC) questioned the original public purpose condition in the statute, the Waterways Act Amendments of 1983 (1983 Amendments) codified new standards for licensing tidelands that allow for more than just the originally contended maritime commercial uses. (12) Tideland owners seek licenses when they wish to alter or start construction on tidelands. (13) The 1983 Amendments help interpret the Boston Waterfront Development Corp. v. Commonwealth decision and modernize the potential use and impact of the public trust doctrine, especially regarding construction on the waterfront. (14) The Waterways Act continues the goal of the public trust aspect of the Colonial Ordinances and establishes that the Massachusetts Department of Environmental Protection (DEP) will protect the public's interests in the waterfront. (15) The question remains: While the public has these reserved rights, in light of the increasing private, commercial development of the Boston waterfront, is the DEP overlooking them? (16)

   Since the Colonial Ordinances, the Legislature has been responsible for protecting the interests of the public and appointing a licensing authority, the DEP. (17) Political pressures on the DEP sometimes, however, leave the public without the opportunity to participate in the DEP's licensing process for developing waterfront properties. (18) The DEP's discretionary power over waterfront development may hinder the public's interests in the tidelands, and licensing cases often end up before the courts. (19) There are also several loopholes within the Waterways Act that allow developers to avoid public participation in the licensing process, thus effectively undermining the public's ability to assert its interest in the coastline. (20)

   These questions regarding public access to tidelands and the relevant licensing loopholes become more complicated in the context of climate change. (21) Climate change will inevitably erode the coastline, and land formerly exempt from tideland licensing could become subject to the Waterways Act. (22) The effect of this changing coastline may impede the public's access to the coastline because of its potential to affect private licenses, as the DEP must bring landlocked tidelands that were not previously subject to the Waterways Act into compliance. (23)

   The impact of environmental changes on the Boston waterfront has posed several challenges to the public trust concept of balancing the rights of private and public interests in tidelands. (24) This Note will examine the public trust doctrine's purpose to preserve public rights in tidelands. (25) Sections III.A and III.B of this Note will discuss the challenges the DEP faces in issuing licenses and the current licensing issues relating to the Boston waterfront. (26) Section III.C will address the complex issues relating to climate change, including the problems posed to licensing under the Waterways Act, how climate change may impact the tidelands, and in turn, the rights of the public. (27) Ultimately, Part IV of this Note will conclude that in order to preserve the public's interest in the Commonwealth's tidelands, the DEP must address the weaknesses in the tidelands licensure process by adding a heightened review process to prepare for climate change and the inevitable erosion of the coastline. (28)

2. HISTORY

   1. Origin of Public Trust Doctrine and the Colonial Ordinances of 1641-47

      The public trust doctrine "states that all rights in tidelands and the water itself are held by the state 'in trust' for the benefit of the public." (29) The public trust doctrine derives from the idea of common property, as seen in ancient Roman law, which established a common right to the sea and seashore. (30) Scholars also loosely trace the beginnings of the public trust doctrine to the Magna Carta and Colonial Ordinances. (31) Amended in 1647, the Colonial Ordinances incorporated English common law into the Massachusetts Bay Colony (Colony)-now the Commonwealth of Massachusetts--where the current public trust problem be gan. (32)

      Instead of only allowing private ownership of property up to the high tide mark, the Colonial Ordinances created a new interest for property owners in Massachusetts by permitting private ownership of the shoreline up until the low tide mark. (33) Private persons could own the area between the high tide mark and low tide mark--referred to as tidal flats or tidelands--subject to public use for fishing, fowling, and navigating. (34) This type of ownership is atypical, as most other states prohibit private ownership of coastlines beyond the high tide mark. (35) The likely objective of this new grant was to encourage maritime commerce such as wharf-building and increase economic activity in the port areas of the Colony. (36) While the Crown originally meant the Colonial Ordinances to encourage maritime commerce and serve a greater public purpose by conveying private interests, this private ownership has resulted in a lack of public access to tidelands today. (37) Early cases affirmed that while some tidelands are subject to private ownership, the tidelands still have conditions attached to them, and the Legislature may restrict their private use to maintain public access. (38)

   2. Boston Waterfront Development Corp. Decision of 1979

      The SJC examined the public trust doctrine in Boston Waterfront Development Corp. and questioned the modern implications of the Lewis Wharf statutes, which allowed for the private construction of wharfs on tidelands. (39) The property owner sought to register a parcel of land under Lewis Wharf. (40) The court held that the defendant property owner did not own land on Lewis Wharf in fee simple absolute and thus could not use the land for all purposes. (41) More importantly, this decision emphasized that tidelands conveyed by the Legislature are subject to the "condition subsequent" that they be used for proper public purposes. (42) What was disputed by the waterfront property owner was apparent to the court-that another's rights (the public's) restricted the property owner's use of their tidelands, leaving their property encumbered. (43)

      After the court in Boston Waterfront Development Corp. confirmed that public interests attach to tidelands, the Legislature proposed a bill that would potentially extinguish the public's rights to the tidelands. (44) The proposed legislation was not adopted; instead, the Legislature enacted the 1983 Amendments. (45)

   3. 1983 Amendments

      1. Codification of the Boston Waterfront Development Corp. Decision

         The Waterways Act, enacted in 1866, governs tidelands development "by establishing a licensing board to protect the public interest in tidelands." (46) A significant amendment to the Waterways Act, the 1983 Amendments essentially codified the Boston Waterfront Development Corp. decision-defining private tidelands and expanding the original public purpose of the Colonial Ordinance's grant to reflect the modern uses of tidelands. (47) The 1983 Amendments also appointed the DEP to act as the licensing authority of the tidelands in the Commonwealth, furthering the interests of the public trust doctrine by ensuring that the public maintains appropriate access to the property. (48) Section 14 and section 18 set forth the allowable water-dependent and nonwater-dependent uses for both private and commonwealth tidelands, demonstrating the departure from the original, limited proper public purpose of promoting maritime commerce found in the Colonial Ordinances. (49) While tidelands are classified in various ways, there are important...