Friday, July 07, 2006

Public Trust Doctrine Could Stop Balloon Tract Retail Development

By Elaine Weinreb, Humboldt Advocate

July 7, 2006

Although Security National’s proposed Balloon Tract development in Eureka is named the Marina Center, it does not contain a marina – or anything else that is related to water, boats, or the bayshore on which it is located.

This, according to the project’s opponents, could be the downfall of the project. Aldaron Laird, a local consultant specializing in regulatory compliance for water-related projects, has uncovered a doctrine buried deep in the heart of the California legal system that could bring the development to a stop, if anybody wanted to take it to court.

In researching old historical documents and records, Laird discovered that the Balloon Tract was once a tideland, an area that was covered and uncovered twice each day by the waters of Humboldt Bay. Even though the area was subsequently diked and filled, Laird says that legally the land remains subject to the doctrine of public trust.

The doctrine of public trust, which goes back to Roman times, and is the underlying basis of common law, says that resources such as the seashore, must be used in a way that benefits the entire public, not just a few people.

"The doctrine of public trust says that you can’t own the seashore, the air, the ocean, or the navigable waterways," Laird told the Humboldt Advocate.

"That became the basis of English common law. When California joined the Union in 1850, all its tidelands became its sovereign lands. All those lands are encumbered with the public trust."

Laird said that early state legislatures were under a lot of pressure to sell off tidelands, so that they could be diked and used for agriculture. "In the 1800’s, people had to raise all their food around here; they couldn’t bring it in. Flat land was at a premium, so the state legislature allowed the sale of all these tidelands. But the fact that they sold it doesn’t remove the public’s trust easement that’s associated with those lands. They can’t sell off the public trust easement."

"If you’re going to use Public Trust lands, they have to be used for a water-related purpose, because public trust lands are associated with public trust waters. Public trust can include industrial uses, and commercial uses, and recreation. But it has to be water-related. It has to have something to do with being on the seashore. You can’t just occupy the seashore for something that has no seashore relationship," said Laird.

Laird adds that public trust uses associated with shorelines include shipping, boating, fishing, swimming, the maintenance of open space, and the maintenance of natural ecosystems. Several court decisions have demonstrated that this legal principle is alive and well, and can trump other aspects of the law.

"There was a famous court case in Illinois," he said, "where the Illinois state legislature granted all the lakeshore frontage in Chicago to the railroad. They got sued, and the case went to the Supreme Court which said, ‘You can sell the underlying dirt, but you can’t sell the public’s right to use the shoreline of Lake Michigan.’ So the court reversed the state legislature and they took all the land back.

"A 1971 court case, called Marks v. Whitney, dealt with tidelands along Bodega Bay [in Marin County]. There was a property owner that owned the shoreline and wanted to block off access to the bay. All the other people said, ‘you can’t do that. What you bought is former tideland. We all have a right to go up there.’" The courts eventually ruled in favor of public access.

Unlike most legislation in the U.S., public trust doctrine can operate retroactively. "Look at the famous Mono Lake case in 1983," Laird said. "The city of Los Angeles was diverting all the streams that went into Mono Lake, so the lake was drying up. The court determined, based on the Marks v. Whitney case, that the public trust protects and preserves the natural ecosystem. The ecosystem of Mono Lake was dying. So they reversed the water rights granted to LA.

"LA said ‘You can’t do that. You gave them to us,’ and they said, "No, we own the water, we can take it back whenever there’s a valid reason. And protecting the public’s right to use Mono Lake and have a natural ecosystem trumps your right as a water right permit holder. So they reversed it."

Larry Glass, a spokesperson for Citizens for Real Economic Growth (CREG), a group that opposes the proposed "Marina Center" on the Balloon Tract, told the Humboldt Advocate that he was amazed to discover historical photographs of the Balloon Tract, showing large portions of it underwater.

"I’ve been stunned to learn about the true history and reality of the Balloon Tract, that actually half of it was part of Humboldt Bay, that within the past 60 years it was part of the bay, and that part that wasn’t part of the bay was mud flats," he said, holding out a large black-and-white photograph of a watery Balloon Tract. "I’d been led to believe that this had been a railyard since the 1800’s, but based on this 1948 picture, they had just started filling in the Balloon Tract in 1948 with dredgings from the bay.

"Sixty or seventy years ago, Clark Slough was a large freshwater stream that flowed all the way from a spring near Bucksport to the Balloon Tract," he continued. "This area was an important part of the ecosystem of Humboldt Bay. There’s a historical document, in which railroad passengers were complaining to the railroad about the naked children swimming in Clark Slough. Now the slough is just a little culvert, going under Waterfront Drive. That gives you an idea as to how much the environment has changed over this 60-year period of time."

CREG’s position is that the City of Eureka should have studied the area comprehensively and forced the Union Pacific Railroad to clean up the polluted site, before consenting to its development. The city, at one point, was offered a $45,000 grant from the Headwaters Foundation to develop a master plan for the Balloon Tract, but turned it down. Glass said that four of the five City Council members were heavily influenced by Rob Arkley, the owner of Security National, the company which is presently planning on developing the site.

"The city has never even asked the railroad to clean the site up or consulted with any agencies about getting it cleaned it up," Glass said. "This isn’t some poor little struggling railroad. This is Union Pacific, one of the fattest corporations out there right now, and Cherie Arkley’s worse case scenario of $12 million to fully clean the site, is four days’ profit for Union Pacific."

Another local group, the Humboldt Baykeeper, took matters into its own hands and took legal action against Union Pacific, to try to force them to clean up the site.

"Back in March we filed a 60-day notice against Union Pacific," Pete Nichols, spokesperson for the Humboldt Baykeeper, told the Humboldt Advocate. "The 60 days has since passed, so in early June we filed our lawsuit with the courts. We have two claims under the Clean Water act and another federal statute called the Resources Recovery Conservation Act.

"We’re saying that Union Pacific needs to be held responsible for cleaning up the contaminants on the Balloon Tract that are entering Humboldt Bay. Those contaminants are causing immanent and substantial endangerment to the environment."

Security National, the project’s developer, has said that they will place a cap over the polluted land, but Nichols has said that is inadequate and the site needs a much more extensive cleanup.

Nichols said that the case was being heard in the 9th Circuit Federal Court in San Francisco. Mark Lovelace, representing the local group called Healthy Humboldt, agrees with Laird and Glass, and says the "Marina Center" is an example of poor city planning.

"The Humboldt Bay Harbor Management Plan, the Humboldt Bay Harbor Revitalization Plan, the City of Eureka’s Zoning and General Plan, the Local Coastal Plan, and Eureka’s ‘Prosperity!’ strategy all say what should or should not happen on this property---and they effectively say ‘don’t do this here,’" he said.

"Public trust doctrine speaks to lands that are common to everyone," Lovelace said. "Ownership of these lands does not mean that you have the right to do something that is against the public interest. No one, regardless of their ability to own land, has the right to destroy resources that are needed for the common good."

Lovelace also faulted the City Council for not taking a more active role in planning for other possible uses of the Balloon Tract, and forcing the railroad to clean up after itself.

"The city has renovated its waterfront, and redefined itself as an attractive Victorian seaport," he said. "This is a property that has a 230 degree panorama of Humboldt Bay, over _ mile of waterfront frontage, and if that were ready for development you could pick and choose the type of developer you wanted. The city could be in the catbird seat. But because they haven’t said ‘word one’ about Union Pacific living up to its basic responsibilities, it’s been left in such a poor condition that people aren’t clamoring to build there."

"Two of those four city council members could turn this thing around and do something that they’ll be proud to have their name on, in the future, and not defending for the rest of their careers.

"Measure J from 1999 was very clear. It asked if the city should change the zoning of the Balloon Tract to Service-Commercial. 61 percent of the public said ‘No.’ It’s the only property in all of Eureka whose use has ever been put to a vote of the public. It’s the only use that the public has said we don’t want. But that use is exactly what they’re asking for now."

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