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Tidelands and the Public Trust: an Application for South Carolina*

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Tidelands and the Public Trust: an Application for South Carolina* Tidelands and the Public Trust: An Application for South Carolina* Bradford W. Wyche** INTRODUCTION Once regarded as "utterly worthless as property," 1 the tidelands2 of the coastal states-land located between the mean low and mean high wa- ter marks3-are now recognized widely as resources of immense public value.' The Connecticut Superior Court documents this changed attitude in 5 Rykar Industrial Corporation v. Gill: [W]e now know that salt marshes have a much greater value. As hydrologic sponges they absorb large quantities of water during severe tides, thus containing the spread of flood waters. As balance wheels in the ecosystem, they sop up excess nutrients for later release when the nutrient supply is low. As sedimentary catch ba- * Some portions of this Article are adapted from Wyche, The Law of Tidelands in South Carolina, in ENVIRONMENTAL LAW IN SOUTH CAROLINA: SELECTED Topics 81 (U.S. Dep't of Housing & Urban Dev. Rep. No. SC-40-0014-1157, 1977). ** A.B. 1972, Princeton University; M.F.S. 1974, Yale University; J.D. 1978, University of Virginia. The author would like to thank Mr. William C. Moser, staff attorney with the South Carolina Water Resources Commission, for his many helpful suggestions and comments. 1. State v. Pacific Guano Co., 22 S.C. 50, 66 (1884). See also Chisolm v. Caines, 67 F. 285, 291 (D. S.C. 1894) ("Mhese mud shoals . .are not aids to, but obstructions to, navigation. ...). Such attitudes, coupled with the development of the nation's coastal zone to accommodate population and industrial growth, led to widespread destruction of the tide- lands. From 1922 to 1954, more than one-quarter of the country's tidal marsh was destroyed by filling, diking, draining, and other construction. S. REP. No. 733, 92nd Cong., 2nd Sess. 2 (1972) (quoting THE INSTITUTE OF ECOLOGY, MAN IN THE LIVING ENVIRONMENT 244 (Workshop on Global Ecological Problems Report, 1971)). 2. Salt marsh, marshland, tidal marsh, estuarine land, foreshore, and intertidal zone are other terms commonly used to describe this area. An estuary may be defined as "a semi- enclosed coastal body of water which has a free connection with the open sea." E. ODUM, FUNDAMENTALS OF ECOLOGY 352 (3d ed. 1971). Strictly speaking, estuarine lands include both the tidelands and submerged lands. 3. The United States Supreme Court has approved the generally accepted definition of mean high water mark as "the average height of all the high waters over. a period of 18.6 years." Borax Consolidated, Ltd. v. City of Los Angeles, 296 U.S. 10, 26-27 (1935), rehearing denied, 296 U.S. 664 (1935). See generally Maloney & Ausness, The Use and Legal Significance of the Mean High Water Mark in Coastal Boundary Mapping, 53 N.C. L. REV. 185 (1974). 4. See generally J. CLARK, COASTAL ECOSYSTEMS: ECOLOGICAL CONSIDERATIONS FOR MANAGEMENT OF THE COASTAL ZONE (1975); D. GATES, SEASONS OF THE SALT MARSH (1975); E. ODUM, supra note 2, at 352-62; D. RANWEL, ECOLOGY OF SALT MARSHES AND SAND DUNES (1972); J. TEAL & M. TEAL, LIFE AND DEATH OF THE SALT MARSH (1969); Laurie, Salt Marsh:A Question of Survival, S.C. WILDLIFE, March-Apr., 1975, at 36. 5. 4 E.L.R. 20,226 (Conn. Super. Ct. 1973). ECOLOGY LAW QUARTERLY [Vol. 7:137 sins, they serve as natural depositories for accumulations of sedi- ment brought in by the tide, thus keeping the channels free for navigation. As nurseries, they supply nutrients to shell-fish, crusta- ceans and other marine life. As natural refuges they act as habitats for wild life and as a way station for migratory waterfowl. For all these reasons, it is obvious that the state has a great stake in the 6 preservation of tidal marshland. Because these lands are of such great importance, courts have generally applied the public trust doctrine to tidelands. Under the doctrine, tidelands, as well as lands underlying navigable, non-tidal waters, are held in trust for the benefit of the public. 7 The owner is deemed to hold his title-the jus privatum-subject to the paramount rights of the public in the lands-the jus publicum.' Courts have relied on this doctrine to enjoin a private tidelands owner from using his property in a manner injurious to the public9 and to rescind a legislative grant of state-owned tidelands to a private person solely for private purposes. 10 Used in this manner, the public trust doctrine has proven to be an effective judicial tool for affording protection against the abuse and destruction of the remaining tidal areas. The protection of the tidelands is of national importance because the tidelands occupy a large portion of the nation's coastal zone and perform vital functions in the coastal ecosystem. Yet the public trust doctrine is a tool largely used by state courts to protect lands located in the particular state. Consequently, a specific analysis of the applicability of the doctrine and the attendant legal issues in one state will not only help to elucidate the law in that state, but will also indicate many of the issues that will be found in other jurisdictions. Protection of the tidelands is of particular interest in South Carolina. Nearly a half-million acres of tidelands lie along the South Carolina coast; 6. Id. at 20,228. 7. Stone, Public Rights in Water Uses and Private Rights in Land Adjacent to Water, in I WATER AND WATER RirHrrs 177, 197 (R. Clark ed. 1967). 8. Shively v. Bowlby, 152 U.S. 1, 57 (1894); Illinois Cent. R.R. v. Illinois, 146 U.S. 387, 452 (1897). See generally Berland, Toward the True Meaning of the Public Trust, 1 SEA GRANT L. J. 83 (1976); Deveney, Title, Jus Publicum, and the Public Trust: An HistoricalAnalysis, 1 SEA GRANT L. J. 13 (1976); Eikel & Williams, The Public Trust Doctrine and the California Coastline, 6 URB. LAW. 519 (1974); Frey, The Public Trust in Public Waterways, 7 URB. L. ANN. 219 (1974); Jaffee, The Public Trust Doctrine Is Alive and Kicking in New Jersey Tide- waters: Neptune City v. Avon-by-the Sea-A Case of Happy Atavism?, 14 NAT. RESOURCES J. 309 (1974); Olson, The Public Trust Doctrine:Procedural and Substantive Limitations on the Governmental Reallocation of NaturalResources in Michigan, 1975 DET. C. L. REV. 161; Sax, The Public Trust Doctrine in Natural Resource Law: Effective JudicialIntervention, 68 MIcH. L. REV. 471 (1970); Note, The Public Trust in Tidal Areas: A Sometime Submerged Judicial Doctrine, 79 YALE L. J. 762 (1970) [hereinafter cited as The Public Trust in Tidal Areas]; Comment, The Tideland Trust: Economic Currents in a Traditional Legal Doctrine, 21 U.C.L.A. L. REV. 826 (1974). 9. See, e.g., Marks v. Whitney, 6 Cal. 3d 251, 491 P.2d 374, 98 Cal. Rptr. 790 (1971). 10. See, e.g., People ex rel. Scott v. Chicago Park Dist., 66 Ill. 2d 65, 360 N.E.2d 773 (1976). See discussion accompanying notes 170-172 infra. 19781 TIDELANDS PUBLIC TRUST submerged twice daily by the tides, this vast area constitutes twenty-six percent of the total tidelands acreage on the Atlantic coast. " The size of the area and its ecological and recreational importance would seem to require the most stringent protection possible. Whether those tidelands are held in trust for the public benefit in South Carolina, however, is open to question. In State v. Hardee,12 Justice Bussey of the South Carolina Supreme Court concurred with the result reached in the majority decision, but concluded in a separate opinion that only sub- merged lands1 3 are held in the public trust. According to Justice Bussey, the tidelands are merely "vacant lands subject to grant and private ownership as any other vacant lands.' 14 Several commentators also support this posi- tion.15 The main purpose of this Article is to re-examine the conclusions drawn by Justice Bussey and others. By analyzing the common law, South Carolina statutory and case law, and the law in other jurisdictions, this Article seeks to demonstrate that a tidelands trust does exist in the state. An important preliminary question concerns the ownership of the tidelands. 1 6 I WHO OWNS THE TIDELANDS? A. Geographic Components of the CoastalZone The coastal zone of an American state can be divided, in order of emergence from the ocean bed, into the following geographic components: (1) outer continental shelf lands; (2) submerged lands; (3) tidelands; and (4) fast land. 7 Outer continental shelf lands refer to that area located seaward of the state's jurisdictional limit' s to the edge of the continental shelf. '9 Under 11. South Carolina Environmental Coalition, Tidelands 2 (1973) (brochure). 12. 259 S.C. 535, 193 S.E.2d 497 (1972). 13. Submerged lands are only those lands below the mean low water mark, whereas tidelands are those lands between the mean high water and mean low water marks. See Figure 1, and text accompanying note 17 infra. 14. 259 S.C. at 550, 193 S.E.2d at 504. 15. See, e.g., Horlbeck, Titles to Marshlandsin South Carolina (pts. 1-2), 14 S.C. L. Q. 288, 335 (1962); A. Baldwin, A Re-examination of the 1928 Cape Romain Decision in South Carolina (Comm. for Preservation of Privately-Owned Marshlands, Summerville, S.C., 1972); P. Middleton, A Review of the Law Pertaining to the Private Ownership of South Carolina Marshland (Comm. for Preservation of Privately-Owned Marshlands, 1975); Logan & Williams, Tidelands in South Carolina:A Study in the Law of Real Property, 15 S.C. L. REV. 657 (1963). 16. A discussion of state and federal statutory regulation of the tidelands is beyond the scope of this Article.
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