Ecology Law Quarterly
This Article addresses the public trust doctrine as applicable to waterways and their shores, with a particular focus on emerging trends in the state of New Jersey. Several disparate factors have aggravated disputes between competing visions for waterfront areas. The U.S. population has increased much more in coastal than inland areas. The decline in heavy industry along with dramatic increases in real estate values have led to intensive development and redevelopment in waterfront areas, including the re-opening of areas functionally closed to the public for well over one hundred years. As communities have discovered the values of attractive waterfront areas, conflicts have arisen as to who will share in the benefits. Will waterfronts become a public asset, a hybrid of a grand promenade and linear park for access and recreational use, or an asset to be privatized for exclusive profit and utilization?
Since New Jersey is the most densely populated and developed coastal state, its shoreline has been a battleground for competing public and private demands for access and use. Every one of New Jersey's 8.5 million residents lives within sixty miles of the Atlantic Ocean or one of its bays or estuaries. Therefore, New Jersey provides ample fodder for the exploration of the changing contours of the public trust doctrine as applied to waterways and their shores, particularly in light of its very high real estate values and long, flat shoreline vulnerable to storm damage.
Part I of this Article discusses a brief history of the public trust doctrine, while Part II defines the role of this common law doctrine in New Jersey. Part III details the scope of public access to and use of the Atlantic Ocean and the adjacent dry sand beaches in New Jersey. Part III also examines the doctrine in the context of regulatory takings jurisprudence, confronts recent criticisms of New Jersey court decisions that expand public rights to the state's beaches, and comments on the utility of other common law principles to further broaden these rights. Part IV briefly summarizes contemporary public trust issues relating to waterways in other coastal states. Finally, Part V identifies several alternative methods that New Jersey has recently used to uphold the public trust doctrine and anticipates issues that the judicial system could soon face regarding the public trust doctrine as applied to New Jersey's coastline.
University of California Berkeley School of Law
Timothy M. Mulvaney & Brian Weeks,
"Waterlocked": Public Access to New Jersey's Coastline,
Available at: https://scholarship.law.tamu.edu/facscholar/560