DOCTRINE IN PLANNING AND
MANAGEMENT OF THE NEW YORK
STATE CANAL SYSTEM
Paul M. Bray*
I. A HISTORICAL LOOK AT THE CANAL SYSTEM
The New York State Barge Canal System has fulfilled an early prophecy that it would be "'a work more stupendous, more magnificent and more beneficial, than has heretofore been achieved by the human race.'"' Consisting of the Erie, the Champlain, the Oswego, and the Cayuga-Seneca canals, and linked to the Hudson River and the Great Lakes, the Canal System spans 524 miles and directly touches eighteen of the state's sixty-two counties.' With such an expansive reach, the New York State Barge Canal System has made a significant contribution to the Empire State's superiority in commerce.
After improvements to the barge canal were completed to form the Canal System as it exists today, many eminent authorities called the New York State Barge Canal System "one of the greatest engineering works of the . . . [early twentieth century], rival ing," if not surpassing, the Panama Canal.3
The lands of the Canal System were recognized, treated, and protected "for the commercial advancement and prosperity of the state and of its people."4 New York courts have found that the legislature intended the state to hold canal lands as sovereign "for the public, in trust for a public purpose."5
Article XV of the New York State Constitution prohibits the legislature from "sell[ing], lease[ing], abandon[ing], or otherwise dispos[ing] of the now existing or future improved barge canal" and further declares that the barge "canal and terminals shall remain the property of the state and under its management and control forever.' Likewise, Article XIV, which was adopted primarily to preserve the watershed of the state's commercial waterways and the natural resources of the state for public use, protects state-owned forest lands .7 Consequently, approximately two million acres of forest preserve in the Adirondack Park are protected' and "shall be forever kept as wild forest lands." The Adirondack Park is the only constitutionally protected forest land in the nation.10 Historically, the Canal System has been protected primarily because of public interest in this vast public facility that shapes and utilizes the state's natural resources.
Today, the Canal System continues to be a state treasure, but one that is greatly underutilized.11 The system has been a victim of changing patterns in commercial transportation. Its rebirth may depend upon the success of efforts to develop and manage the Canal System as a major recreation and tourism area.
By the 1970's, it was clear that as the volume of commercial vessels using the Canal System declined, the volume of recreational boats steadily increased." In 1975, the New York State Office of Parks and Recreation and the New York State Department of Transportation decided to develop the canal into a major recreationway. 13 The decision was made after reviewing a 1973 pilot project, which established six canal parks and three trails and attracted over 200,000 visitors in one season,"' and upon finding that:
1. New York's waterways touch 85 percent of the State's population.
2. Water connected and associated activities are the most popular forms of recreation.
3. Abandoned railroad rights-of-way, utility lines, canal towpaths, etc. constitute the easiest to establish and most highly desirable routes for trails and bikeway systems.
4. Many unused or underused state properties are located along these waterways.
5. Pollution control efforts are rapidly cleaning up these waterways, thereby enhancing recreational opportunities. 15
In the early 1980's, urban cultural parks were developed along the canal to foster community improvement, and revitalization began in the villages of Whitehall, Waterford, and Seneca Falls, and in the cities of Schenectady and Syracuse." Similar to the way development of many large and small urban areas had been supported by commerce from canal system use, urban planning and redevelopment could be based on the urban cultural park approach by directing a new emphasis on historic preservation, recreation, and tourism development."
The transition continued with the establishment of a canal recreationway commission," known as the New York State Barge Canal Planning and Development Board," to encourage the "coordinated promotion, planning, and development of the state's canals for tourism purposes."20 The plan presented by the Board in 1989 found "very real benefits to New York in the areas of recreation and tourism. . . . [along with other benefits in] flood and ice control, bulk transport, water supply, water quality, irrigation, generation of hydro power, commercial process water, and fish and wildlife habitat. 1121 The plan proposed designating the entire canal corridor as a "Recreation and Tourism Zone'112 and also proposed a constitutional amendment to remove the prohibitions on fees for canal use and leasing of canal landS.23
The New York Constitution was amended in 1991 to allow the proposed fees and leasing," and 1992 legislation" formally organized the transition of the Canal System from primarily a commercial transportation facility to a state recreationway."The powers and duties of the New York State Department of Transportation relating to the canal and canal lands were transferred to the New York State Thruway Authority.27 A canal recreationway commission was established to prepare a plan to effectuate the goal of developing the canal into a recreationway system." Other provisions in the legislation include authority to lease canal land consistent with the recreationway plan 21' and to establish a Canal System development fund for the maintenance, development, and promotion of the Canal System from moneys collected, in part, from fees and leases.30
Meanwhile, the dream of the revival of the Canal System as a commercial waterway is still alive in a plan called the "All American Seaway System."" The plan provides for "deepen[ing] New York's Barge Canal and link[ing] it up, via Lake Superior ... and the Mississippi River, down to the Gulf of Mexico."32 Thus, the traditional commercial transportation role of the Canal System should not be completely discounted for the future.
New York's Canal System is poised at a critical juncture, and many hope that the Canal System will recapture its role as a driving force in advancing the state's prosperity and welfare through opportunities for recreation and tourism development." An expanded range and number of land use and resource management decisions will result from this transformation as the canal system becomes an increasingly influential factor in regional planning, conservation, and development. The legislature has designated entities and created tools to bring these opportunities to fruition, but to succeed, the legislature must also navigate through a field of complex and sometimes contradictory legal, institutional, social, economic, and environmental interests and concerns. The public trust-like protections that have preserved the resources of the Canal System to date are likely to encounter new challenges and threats from such interests.
II. THE PUBLIC TRUST DOCTRINE
The question raised today is whether the notion of the public trust can serve as an umbrella and provide guidance for the design of a framework for the comprehensive management of New York's Canal System and its associated land within ecological, geographic, and political boundaries."'
In particular, will the public's interest in canal resources be protected? Will new challenges for stewardship resulting from the leasing of canal land and leading to a potentially greater diversity of activities be met? Can this vast transportation facility and environmental and economic resource which traverses the state be managed as a totality? The remainder of this article will explore how the public trust doctrine can guide the planning and management of the Canal System.
The advantages of area-wide management were set forth in a report prepared in conjunction with the National Project on the Public Trust Doctrine." The report stated that "area-wide management programs may be structured, using the public trust doctrine and the state's police powers in tandem, to encourage comprehensive management over lands, waters and resources within the area, and thus avoid the limitations inherent in ad hoc permitting decisions."36
The public trust doctrine had its origins in Roman and English civil law" and provides that "title to tidal and navigable freshwaters, the lands beneath, as well as the living resources inhabiting these waters,"38 is vested in the sovereign for the benefit of the people .39 The definition of what is included within such title, hereinafter referred to as the Common, may change according to the public interest in natural and cultural resources."
Comprehensive management of New York's Canal System using public trust principles begins with identifying the system's common resources, the public interest in such resources, and uses for them. The Common of the Canal System includes the waterway, its supporting facilities, public land associated with the system, the ecological structure, which ranges from watershed lands to fish and wildlife habitats, open space, historical and cultural resources," and visual resources. Together these resources make up the totality of the Canal System which must be managed to protect and foster the public interest. Generally, the public interest in the Common includes navigation, recreation, public access, environmental quality, protection of cultural resources and open space, and certain economic objectives such as tourism, commercial transportation, and community development." The public interest forms the basis for identifying and ranking the use of public trust resources. Generally, the public trust doctrine has given navigation priority over other uses,43 but "the doctrine's traditional flexibility permits States to weigh social [and environmental values and change priorities] ... at different times .... For example, access to public trust beaches has become a public trust use of high priority in some States ...."44
After identification of the Common and public interest therein, management grounded in public trust principles would prioritize public trust uses.45 Uses detrimental to the trust would be restricted or prohibited while permissible uses would be specified and ranked .46 Determinations would then be based on detriments and benefits to the trust as a whole.47
"The Public Trust Doctrine justifies distinguishing between
permissible trust uses and impermissible non-trust uses. Here
the doctrine's effect is clearest: impermissible uses can be prohibited
by the trustee with much less risk of successful takings claims.
1141 Because a state holds a continuing interest in trust resources,
it manages these resources as a property owner without having
to rely solely on police power for regulation.49
Implementation of rules prioritizing uses could be further refined by a public purpose test:
The management framework. . . allows State trustees to set limits [in performance standards based] upon the cumulative effects of large numbers of individual projects affecting [the Common] .... Acting on its obligation to preserve trust property, and recognizing the cumulative effects problem, a State may decide that the in creased rate of development threatens this public interest and must be limited to prevent such harm.50
The described management framework can serve as an umbrella over local zoning and planning and state police power regulation applicable to the canal system. New York's cumulative impact law, directing the Department of Environmental Conservation to "take into account the cumulative impact upon all ... [water, land, fish, wildlife, and air] resources in making any determination, "51 the Environmental Quality Review Act,52 the freshwater wetlands law '53 and other police power regulation, can be used to integrate and buttress public trust management. Local zoning and planning consistent with public trust uses should remain flexible to shape communities according to local standards. Perhaps the most valuable aspect of the public trust approach is the opportunity to have overarching standards to guide localities on matters of state interest. It is beyond the scope of this article to suggest a formal implementation strategy that is dependent upon how the Common, public interests, and objectives are defined in the planning process. Options, though, include designing incentives for local governments to conform their zoning and planning to the standards presented in the canal recreationway plan, and enacting additional laws for regional or state review of projects in critical environmental areas and projects substantially affecting regional and state interests.
Identified in the report for The National Project on the Public Trust Doctrine"" are three items used to determine whether a state's area-wide management program for an estuarine ecosystem maximizes the benefits of the public trust doctrine." Each item is equally relevant to the recently amended canal system law" as it pertains to the public trust doctrine. The recommended items are:
The legislature must clearly express its public trust interest. This requires specific legislative findings regarding the unique values of estuarine resources and a clear declaration of legislative policies and goals.
The legislature must mandate comprehensive plans for the coastal area that identify areas of critical concern, such as estuaries; define appropriate and inappropriate uses; and delineate local versus State jurisdiction.
The legislation and the management plan, including the special area management plans, must provide for area-wide balancing of public trust uses and other uses that benefit the public, and for substantial public review.57
The New York State legislature recognized the public trust interest in the Canal System in declaring that the Canal System "is an integral part of New York's . . . [common] heritage, and it is essential that the beauty and environmental integrity of the canals be preserved for future generations. "58 Furthermore, the goals of improving and maintaining the system for future recreational and transportational users are recited by the legislature.59
Provisions were made in the canal system law for a comprehensive recreationway management plan to be prepared by a Canal Recreationway Commission." The canal recreationway plan provides for identifying critical environmental areas and, by implication, agricultural areas, business areas that support outdoor recreation activities, open space areas that foster the beauty and environmental integrity of the canals, and commercial areas that support the shipping interest in the Canal System."
A formulation of public trust rights is adopted in the Canal System law which directs that the plan should contain:
provisions which protect the public interest in such lands and waters for purposes of commerce, navigation, fishing, hunting, bathing, recreation and access to the lands and waters of the state, and otherwise encourage increased public access to the canal through the establishment of parks, scenic by ways and recreational trails on the canal system. Such provisions shall ensure the public safety .... 62
Also, development is required to be clustered to protect open space between urban areas "which will be conducive to the preservation of waterfowl, fish and wildlife habitats . . . ."63 With evident regard for the area-wide balancing of public trust uses, a specific provision in the canal system law is made for regional and local governmental input and public comment as part of the planning process." Thus, the policies, goals, and directives of the canal Sys tem law point the way and support area-wide management of New York's Canal System based on public trust principles.
The New York State Canal System is a state treasure within the scope of the public trust doctrine. The state holds canal lands as sovereign for the public, and the public's rights and interests in the canal system have been preserved by the New York Constitution,65 the courts,66 and the legislature.67 As the Canal System transforms to serve an expanded set of purposes, the public trust doctrine provides the bridge to increase the set of rights and is an articulation of public interests to protect trust resources for future generations. The first test of whether we meet this challenge and opportunity will be seen with implementation of the canal recreationway plan. Will it effectively use public trust principles to protect the public interest? If not, the courts may be required to apply the public trust doctrine to protect the Common of the Canal System.
1 Roy G. FINCH, THE STORY OF THE NEW YORK STATE CANALS 7 (1925) (quoting the writer of the New York Memorial).
2 NEW YORK STATE BARGE CANAL PLANNING & DEv. BD., DEVELOPMENT OF TOURISM AND ECONOMIC POTENTIAL ON NEW YORK'S CANALS 5 (1989) [hereinafter CANAL PLANNING & DEV. BD.J.
3 FINCH, supra note 1, at 11.
4 Banner Milling Co. v. State, 191 N.Y.S. 143, 147 (Ct. Cl. 1921), aff'd, 205 N.Y.S. 911 (App. Div. 1924), affd, 148 N.E. 668 (N.Y.), cert. denied, 269 U.S. 582 (1925).
5 People v. Baldwin, 188 N.Y.S. 542, 544 (App. Div. 1921), aff'd, 135 N.E. 964 (N.Y. 1922); see also Burbank v. Fay, 65 N.Y. 57, 72-73 (1875); 2 C.J.S. Adverse Possession § 14(c), at 658-59 (1972) (explaining that lands held in trust by a state are not subject to adverse possession claims by private parties to acquire title to such lands).
6 N.Y. CONST. art. XV, § 1.
7 Id. art. XIV, § 2.
8 Association for the Protection of the Adirondacks v. MacDonald, 170 N.E. 902, 903 (N.Y. 1930).
9 N.Y. CONST. art. XIV, § 1.
10 See supra notes 8-9 and accompanying text.
11CANAL PLANNING & DEv. BD., supra note 2, at 1.
12 Id.; see also NEW YORK STATE OFFICE OF PARKS AND RECREATION & NEW
YORK STATE DEP'T OF TRANSP., NEW YORK STATE CANAL RECREATION DEVELOP
MENT PROGRAM (1975) [hereinafter PARKS AND RECREATION & DEP'T OF TRANSP.]
(describing the growth of recreational uses of the canal and proposing a plan for a
canal recreationway system).
13 PARKS AND RECREATION & DEP'T OF TRANSP., supra note 12, at 4.
14 Id. at 8.
15 Id. at 6-7.
16 CANAL PLANNING & DEV. BD., supra note 2, at 24.
18 Act of Aug. 3, 1992, ch. 766, §§ 1, 17, 1992 N.Y. Laws 3948, 3949, 3957 (codified at N.Y. CANAL LAW § 138-a (McKinney Supp. 1994)).
19 CANAL PLANNING & DEV. BD., supra note 2, at 5.
20 Id. at 1.
22 Id. at 3.
23 Id. at 2.
24 N.Y. CONST. art. XV, § 1 (amended Nov. 5, 1991).
25 See supra note 18 and accompanying text.
26 Act of Aug. 3, 1992, §§ 1, 17, 1992 N.Y. Laws at 3949, 3958 (codified at N.Y. CANAL LAW § 138-b (McKinney Supp. 1994)).
27 Id. §§ 1, 4, 1992 N.Y. Laws at 3949, 3950 (codified at N.Y. CANAL LAW § 5 (McKinney Supp. 1994)).
28 Id. § 1, 17, 1992 N.Y. Laws at 3949, 3957 (codified at N.Y. CANAL LAW § 138a) *
29 Id. § 10, 1992 N.Y, Laws at 3953-54 (codified at N.Y. CANAL LAW § 55 (McKinney Supp. 1994)).
30 Id, § 32, 1992 N.Y. Laws at 3967 (codified at N.Y. STATE FIN. LAW § 92-u (McKinney Supp. 1994)).
31Marilyn M. Wiles, Waterway Promises to Revive Albany's Role, CAP. Dis
33 CAN. PLANNING & DEv. BD., supra note 2, at 1.
34 Although a canal recreationway commission was established in the 1992 legislation, the planning and area-wide boundaries for the canal recreationway were not included. Instead, a regional approach will be used to deal with the ecological, economic, and social factors involved in the recreationway plan. Cf. N.Y. ENVTL. CONSERV. LAW § 44-109 (McKinney Supp. 1994) (designating the Hudson River Valley Greenway, which is also subject to a public trust resource- based regional planning process, to include almost all the counties on both sides of the Hudson River).
35 PUTTING THE PUBLIC TRUST DOCTRINE TO WORK: THE APPLICATION OF THE PUBLIC TRUST DOCTRINE TO THE MANAGEMENT OF LANDS, WATERS AND LIVING RESOURCES OF THE COASTAL STATES (David C. Slade ed., 1990) [hereinafter PUBLIC TRUST DOCTRINE].
36 Donald L. Connors et al., The Public Trust Doctrine and Coastal Resource Management, in PUBLIC TRUST DOCTRINE, supra note 35, at 229, 234. note
37 David C. Slade, Executive Summary, in PUBLIC TRUST DOCTRINE, supra 35 at xvii.
38 Id. at xvi.
39 See generally Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 471 (1970).
40 Id. at 484-85.
41 The entire canal system may be eligible for the National Register of Historic Places and represents a significant historic resource within the state. Great sensitivity is required when dealing with such a unique resource." Letter from Ivan P. Vamos, Deputy Commissioner for Planning and Development, New York State Office of Parks, Recreation and Historic Preservation to John Shafer, Executive Director, New York State Thruway Authority (Aug. 12, 1992) (on file with author).
42 See generally Act of Aug. 3, 1992, ch. 766, § 1, 1992 N.Y. Laws 3948, 3948
49; CANAL PLANNING & DEV. BD., supra note 2; PARKS AND RECREATION & DEP'T OF
TRANSP., supra note 12, at 8.
43 Connors et al., supra note 36, at 237.
44 Id. at 238 (listing states that have elevated beach access to priority status).
45 See id. at 234.
46 Id. at 234-35.
48 Id. at 238.
49 Id. at 224-25.
50 Id. at 238.
51 N.Y. ENVTL. CONSERV. LAW § 3-0301(l)(b) (McKinney 1984).
52 Id. §§ 8-0101 to -0117.
53 Id. §§ 24-0101 to -1305.
54 PUBLIC TRUST DOCTRINE, supra note 35.
55 Connors et al., supra note 36, at 257.
56 See Act of Aug. 3, 1992, § 1, 1992 N.Y. Laws at 3948-49.
57 Connors et al., supra note 36, at 257.
58 Act of Aug. 3, 1992, § 1, 1992 N.Y. Laws at 3948-49.
59 Id., 1992 N.Y. Laws at 3949.
60 Id. § 17, 1992 N.Y. Laws at 3957.
61 See generally N.Y. CANAL LAW § 1 38-c (McKinney Supp. 1994) (providing
criteria for developing a canal recreationway plan based on the necessary provi
sions and ultimate goals of such a plan).
62 Id. § 138-01)(d).
63 Id. § 138-c(l)(b).
64 Id. § 138-02), (3).
65 See supra notes 6-7, 9, 24 and accompanying text.
66 See supra notes 4-5 and accompanying text.
67 See supra notes 18, 26-30, 42, 56, 58-64 and accompanying text.