On May 3, Gov. Phil Murphy signed into law a proposal that codified the public trust doctrine, a somewhat amorphous common law principle recognized by the New Jersey courts for nearly 200 years. Senate, No. 1074/Assembly No. 4221. In a press release issued by his office, the governor noted: “By strengthening the public's right to access our beaches, we are ensuring that all New Jersey residents and visitors can enjoy our beautiful shore this summer and for generations to come.”

The Doctrine's Evolution

According to the Supreme Court in 1972: “There is not the slightest doubt that New Jersey has always recognized the [public] trust doctrine. The basic case is Arnold v. Mundy, 6 N.J.L. 1 (Sup. Ct. 1821) ….” Bor. of Neptune City v. Bor. of Avon-by-the Sea, 61 N.J. 296, 305 (1972). Establishing the doctrine was one thing, applying its tenets over time has been another.

Arnold concerned harvesting oysters in the Raritan River. In resolving the competing claims, the court referred to its origin in ancient Roman civil law and its refinement in the laws of England, which distinguished between private and public property:

Those things not divided among the individuals [that is, private property] still belong to the nation, and are called public property. Of these, again, some are reserved for the necessities of the state, and are used for the public benefit …, others remain common to all the citizens, who take of them and use them, each according to his necessities, and according to the laws which regulate their use, and are called common property. Of this latter kind … are the air, the running water, the sea, the fish, and the wild beasts. [6 N.J.L. at 71].

Over the ensuing 150 years, Arnold's reasoning was applied in other fishery cases. It took on greater significance as the state's population grew exponentially, and disputes arose that involved the use and development of the tidal waterways and shores.

It was in the beach access and fee litigation, starting with Neptune City in 1972, that the public trust doctrine would gain its modern currency. The issue there was the validity of a municipal ordinance that charged out-of-towners more than residents for use of the local beach. The ordinance was invalidated on the grounds that “the public trust doctrine dictates that the beach and the ocean waters must be open to all on equal terms and without preference.” In subsequent years, the court reiterated its no discrimination rationale and set aside attempts to limit Neptune City's reach.

DEP Rulemaking Failures

While DEP has been delegated broad rulemaking authority, in the absence of an express delegation its authority to adopt rules is limited. In 2007, it adopted Public Access Rules that required municipal beach owners and operators to obtain the agency's permission to close beaches, and conditioned shore protection funding on providing a specified number of parking spaces and restrooms for beachgoers. That attempt to rely on the public trust doctrine for authority to adopt these rules was rejected in Bor. of Avalon v. DEP, 403 N.J. Super. 590 (2008), certif. denied, 199 N.J. 133 (2009).

By 2012 the administration had changed and DEP took a second pass at adopting Public Access Rules. That effort did not impose requirements on the ocean-front municipalities; rather it encouraged them to adopt public access plans. The agency again claimed that the rules were authorized by the public trust doctrine. But the Appellate Division concluded “absent a specific legislative grant of authority, DEP was not authorized by the public trust doctrine to promulgate the Rules.” Hackensack Riverkeeper, Inc. v. DEP, 443 N.J. Super. 293, 314 (App. Div. 2015), certif. denied, 226 N.J. 212 (2016). For additional discussion of these unsuccessful efforts to regulate public access, see L. Goldshore, “Public Access Redux,” 208 N.J.L.J. 186  (Apr. 16, 2012), and “DEP's Public Access Rules Invalidated,” 222 N.J.L.J. 186 (Jan. 18, 2016). In response to Hackensack Riverkeeper, the DEP was authorized to condition Waterfront Development Law and CAFRA approvals on the provision of public access. L.2015, c. 260.

Legislative Remedy

The stage was set for a more comprehensive legislative remedy. Sen. Bob Smith (D-Middlesex), chair of the Senate Environment and Energy Committee, appointed a taskforce composed of environmental and business representatives to assist in reaching a consensus. The proposal that emerged reflected the group's efforts, although some of its participants were dissatisfied with compromises included in Assembly Committee amendments.

The bill is concise and consists of just nine sections. Its central theme directs DEP to utilize the public trust doctrine and statutory law “to protect the public's right of access to tidally flowed waters and their adjacent shorelines.” That goal is to be implemented by way of the following provisions:

• Section 1: Legislative finding and declaration: This provision summarizes the public trust doctrine case law including that “it is to be molded and extended to meet changing conditions and the needs of the public.” It instructs DEP to protect the public's right of access to tidal waters and adjacent shores “to the greatest extent practicable.” The description of “public access” is noteworthy: It includes visual and physical access, as well as “the necessary support amenities … including … public parking and restrooms.”

• Section 2: DEP actions and funding decisions: The department shall ensure that its permits, approvals, other actions and funding decisions are consistent with the public trust doctrine.

• Section 3: Exceptions: Precludes DEP from adopting any rule or taking any action that requires on-site public access at certain secure facilities, airports, railyards or nuclear power plants. 

• Section 4: Permit conditions: In considering permit or other approval applications that involve certain changes to a structure or use, beach replenishment, or beach and dune maintenance, DEP shall determine whether to condition approval on additional public access consistent with the public trust doctrine.

• Section 5: Marinas, permits and approvals: Detailed public access requirements are provided for DEP permits and approvals for existing marinas and for the development of a marina property that proposes to increase the existing development area by 50% or more.

• Section 6: Habitat and species protection: Authorizes DEP to restrict access to tidal waters and adjacent shorelines to protect critical habitat and threatened and endangered species.

• Section 7: Amends Municipal Land Use Law, master plan contents: authorizes the master plan to include a public access plan element that provides for, encourages and promotes public access consistent with the public trust doctrine.

• Section 8: DEP rulemaking: authorizes the agency to adopt administrative rules to implement the statute.

• Section 9: Effective date: 60 days following enactment.

Reactions

It was neither easy nor quick to seek consensus regarding the public trust doctrine legislation. In light of the competing interests, its passage was clearly a major accomplishment.

For many in the environmental community, compromise is unwelcome and they are inclined to dispute anything that would potentially soften the proposal's impact. It was not surprising that Jeff Tittel, director of the New Jersey Sierra Club, objected to Assembly Committee amendments: “Every time you put 'may' [in place of shall] in a bill it generally means it may never happen. It puts too much discretion with the people who have been part of the problem.” NJSpotlight, Feb. 20, 2019.

Sen. Smith, a champion for the enactment of landmark environmental legislation, took the longer view: “The bill provides statutory recognition of the public trust doctrine and is a critical step in protecting the public's right to access the state's beaches and tidal waterways.” But he acknowledged that additional legislation will be required to complete the task: “To encourage and facilitate public access, adequate parking and restroom facilities will need to be provided at convenient locations, and we will also need to address how those improvements will be funded. Those who found the first step in this process challenging will find the next step to be even more challenging.”

Lewis Goldshore practices in Princeton. His practice is devoted to environmental, land use and municipal law. He is the author of New Jersey Environmental Law (ICLE 2010).