american littoral society logo 200Society opposes additional barriers to tidal waters in statement to NJ Assembly Appropriations Committee

June 15, 2015 - Trenton, NJ - Fishermen, swimmers, surfers, bathers, birders and other members of the public do not need additional barriers between them and the tidal waters of New Jersey. Which is why the American Littoral Association strongly opposes A. 3547/S. 2143.

Tim Dillingham, executive director of the American Littoral Society, will voice that opposition in a statement before the NJ Assembly Appropriations Committee on Monday, June 15, 2015.

A. 3547 aims to correct a conflict in existing New Jersey law over adverse possession of real estate. However, while the bill might "address the plight of a few, it would impact the interests and rights of many," Dillingham says. "By placing public lands into private hands without compensation, the Bill would cause a loss of public access to the waterfront and loss of revenues for the School Fund."

As proposed, the bill would create the potential for roadblocks to public use of public land that is held in trust by the state, Dillingham says. Moreover, the law would be unconstitutional for a number of reasons, not least because it removes a source of funding for the state School Fund. This opinion is echoed by the New Jersey Office of Legislative Services.

For Dillingham's complete remarks, please read the statement appended to the end of this release.

For more information about the American Littoral Society or to become a member, please visit www.littoralsociety.org or call 732-291-0055.   

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Full text of statement:

The American Littoral Society strongly opposes A. 3547/S.2143.

While we understand this bill is intended to address the plight of a few, it would impact the interests and rights of many. By placing public lands into private hands without compensation, the Bill would cause a loss of public access to the waterfront and loss of revenues for the School Fund.Tidelands are lands that are flowed by the tide and lands that have been duly designated by the State as having been formerly flowed by the tide.

Tidelands are held by the State in trust for the use and enjoyment of the residents of New Jersey. This is called the Public Trust Doctrine. It is a concept that dates back to the Roman Empire and that was incorporated into the so-called "Magna Charta of New Jersey" in 1664. It has been recognized by New Jersey courts as the law of state for nearly 200 hundred years.The State is able to sell grants and licenses to such lands at fair market value, but (1) our State Constitution requires that money go directly to the School Fund, and (2) the State never waives the right to regulate the use of tidelands. So even after tidelands are granted and filled, they remain subject to State regulation and public use. The Hudson River Walkway is an example of how the Public Trust Doctrine still benefits residents of New Jersey today.A3547/S. 2143 would change this firmly established law to the detriment of the public. Tidelands that have not been tidally flowed for 40 years would cease to be "tidelands". Such lands could suddenly be off limits to the public, and could be taken out of State ownership without any compensation paid to the School Fund.--The bill would effectively create additional barriers between tidal waters and fishermen, swimmers, surfers, bathers, birders and other members of the public.--The bill would also effectively give owners of illegally filled tidelands a get out of jail free card.

This bill has been revised to exclude properties that the State and local governments "used or intended to be used" for recreational purposes.--The Public Trust Doctrine allows public use of all tidelands, not just those the government says it is okay to use.

This bill also purports to exclude properties that the State or local governments "held in public trust".

--This signals that the drafters do not adequately understand the Public Trust Doctrine. By their very definition, all tidelands were held and continue to be held by the State in trust for the public. Thus, the goal of the bill would appear be nullified by its own terms.Finally, there is a question of this bill's constitutionality. The New Jersey Constitution was amended in 1981 to require the State to bring timely tidelands claims. However, provided the State asserts a timely claim, the State Constitution puts no limit on the duration of the State's interest in tidelands. This legislation would.It seems to me that such a limitation could only be achieved through a duly adopted Constitutional amendment. As you may know, the voters rejected a similar Constitutional amendment in 1982. As you may also know, the Office of Legislative Services has also rendered an opinion as to A3547/S 2143 and found it to be unconstitutional for this and other reasons. I have a copy of that opinion which I will submit into the hearing record.

This concludes my remarks. Thank you.