"The Public Trust Doctrine provides that public trust lands, waters, and living resources in a State are held by the State in trust for the benefit of all of the people, and establishes the right of the public to fully enjoy public trust lands, waters and living resources for a wide variety of recognized public uses". *

In New York State the public trust waters are the waters of the State, and the public trust lands are the lands now, or formerly, beneath those waters to the high water mark. The living resources inhabiting or dependent on these lands and waters are also subject to the Public Trust Doctrine. On Long Island, as a result of colonial era grants, some of these public trust lands are held by the towns.

The Public Trust Doctrine is particularly important in establishing the public's right to use and pass over the foreshore of tidal waters. In Tucci v. Salzhauer (336 NYS2d 721), a case involving the use of land in Hempstead Harbor, the court defined the public's rights in the foreshore:

When the tide is in, he may use the water covering the foreshore for boating, bathing, fishing, and other lawful purposes; and when the tide is out, he may pass and repass over the foreshore as a means of access to reach the water for the same purposes and to lounge and recline thereon.

New York courts have long upheld the principle stated in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892). In this landmark case, the Supreme Court held that the state cannot divest itself of its public trust interest. The court said that the state's title to underwater land:

. . . is a title different in character from that which the state holds in lands intended 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 therein freed from the obstruction or interference of private parties.

Rivers whose bed and banks are in private ownership may also provide opportunities for public use, including incidental portage on riparian lands, if they are navigable-in-fact. The ability of a river to accommodate recreational uses, such as canoeing and kayaking, can establish that a river is navigable-in-fact, Adirondack League Club v. Sierra Club, 92 N.Y. 2d 591 (1998).

New York State has the power to grant interests in state-owned underwater lands to owners of adjacent uplands, subject to the restrictions of the Public Trust Doctrine. In Coxe v. State, 144 N.Y. 396 (1895), the Court of Appeals said that the title of the state to the foreshore is:

[A] sovereign right, and it has been said that a trust is engrafted upon this title for the benefit of the public of which the state is powerless to divest itself . . .The title which the state holds and the power of disposition is an incident and part of its sovereignty that cannot be surrendered, alienated or delegated, except for some public purpose, or some reasonable use which can fairly be said to be for the public benefit.

In 1992, the legislature amended the Public Lands Law (Laws of 1992, c. 791) codifying, in part, the Public Trust Doctrine. The legislature found that regulation of projects and structures, proposed to be constructed in or over public trust lands and waters, was necessary to responsibly manage the public's interests in trust lands. Additionally, the law restricts alienation into private ownership of public trust lands owned by the state. The intent of the amendment was also to ensure that waterfront owners' reasonable exercise of riparian rights and access to navigable waters did not adversely affect the public's rights. The legislature stated that use of trust lands is to be consistent with the public interest in reasonable use and responsible management of waterways for the purposes of navigation, commerce, fishing, bathing, recreation, environmental and aesthetic protection, and access to the navigable waters and lands underwater of the State.

Riparian and littoral property owners, have a right to use or cross public trust lands and waters to gain access to navigable waters. However, the method and manner by which they gain access is determined and limited by the effects on the public's rights, local conditions and custom, and applicable State and local regulations.

Understanding both what the Public Trust Doctrine says about the rights of the public and the rights of riparian or littoral property owners in general and what the specific history of how public trust lands have been managed along a community's shoreline is critical in managing the waterfront.

In the 19th and 20th centuries many grants of public trust lands were made to private interests to promote the commerce of the State and for other purposes. These grants were particularly prevalent in the cities and villages of the State where development was concentrated. In many instances the underwater lands conveyed were subsequently filled. As a result a community's current shoreline is often not its original natural shoreline. Since these filled lands were imbued with the public trust and the conveyances were usually less than a fee interest or had conditions attached, certain public rights in these lands may continue to exist. This situation can be particularly useful in obtaining public access and other public benefits as the waterfront is redeveloped for new uses. Also the State may revoke grants when the uses proposed are not in conformity with the Public Trust Doctrine, Smith v. State 153 A. D. 2d 737 45 N.Y.S. 2d 203 (2nd Dept. 1989).

The New York State Office of General Services is generally the current custodian of public trust lands. They have records of all conveyances and the original shoreline, which may be of use to communities working on plans or projects to make the most of their waterfront.

References:

Long Island Sound Coastal Management Program Volume II, New York State Department of State, 1999, pp.178-185. This document discusses the Public Trust Doctrine for the Long Island Sound shore of New York State.

*Putting the Public Trust Doctrine to Work, Coastal States Organization, 1997.

Underwater Lands and the Public Trust Doctrine (a working paper of the Long Island South Shore Estuary Comprehensive Plan), New York State Department of State, 1997.

Village of Mamaroneck Underwater Lands Study, Final Report, Village of Mamaroneck Coastal Zone Management Commission, 1989. This study is a good example of a complete survey of the status of public trust lands in one community. Appendix D is a detailed description of the information available from the NYSOGS.