# More insight of the PTD



## toto (Feb 16, 2000)

We have discussed in the past, the Public Trust Doctrine, and its meaning for our Natural Resources.

It needs to be understood the power of the PTD, and just what was derived from it. There are, in this country four documents that make up the "organic laws of the United States", and these 4, Declaration of Independence, The Constitution, The Articles of Confederation, and the Northwest Ordinance.

Its the NW Ordinance which is of concern here, as this document was derived, at least partially by the PTD. The NW Ordinance is as important to day as the other three documents, with the exception of the constitution, as it reigns supreme in our country.

If we consider that the NW Ordinance was brought about by the PTD, then why wouldn't it be illegal to go against the PTD? The simple truth is, it isn't. Each state has a PTD, and everyone of them does one major thing, and that is protect its citizens from takings, or locking out the citizens from using the public resources, in this case our woods, and waters.

In the NW Ordinance, it is stated the people are free to use the waters from the Mississippi, to the St. Lawrence, and all waters running to, for any purpose, such as batheing, commercial, swimming, and of course fishing. What should noted, again, is the NW ordinance was used to clarify the Indian Fishing Treaty rights in Michigan, pointing out that this is still valid today.

What we, some of us as a group, are trying to point out to our legislature is that what they are doing on the gear regs is unlawful, unless science shows that these regs are needed, which they haven't done. In fact, in an article to Mlive, it was stated by one of our chief DNR personnel, these new regs aren't about saving a fishery, but about a social issue. So if this is social, then why the regs? There is nothing in the 4 pillars that states that any laws are for social reasons when it concerns our outdoor pursuits.

Hopefully now you understand our stance, and just what the PTD, and NW Ordinance are. Its too bad they don't teach this stuff in school anymore, but I digress.

http://adask.wordpress.com/2011/05/30/the-organic-laws-of-the-united-states-of-america/


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## Splitshot (Nov 30, 2000)

Bill, very well stated!


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## bonefishbill (Nov 1, 2009)

There are plenty of waters in Michigan in which those that wish to fish their spinning, spin casting, --and worms, bait etc. The small percentage protected by gear regs are done for good reason. It is less damaging to a fish when caught on flies, in the mouth then hooked in the gut with a large hook -often treble --hence--better recovery when released...when gear regs are in effect. It's a good thing for the resource, and the economy of Michigan..

Why not just fish the "non regs" waters as you wish, or pick up a fly rod--and enjoy the benefit that "gear regs"--has all ready produced.


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## troutguy26 (Apr 28, 2011)

Have you ever read the study on hooking wild trout done in wisconsin? Its a pretty good read.


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## WILDCATWICK (Mar 11, 2002)

Toto, thanks for providing me some links in the past to look at. I have been extremely busy and haven't gotten around to looking at some of this information until recent.


The Northwest Ordinance argument has me a bit perplexed. I've read the whole document and it sounds like what is being referenced is Article IV.

This article states, "The said territory, and the States which may be formed therein, shall forever remain a part of this confederacy of the United States of America, subject to the articles of Confederation, and to such alterations therein as shall be constitutionally made; and to all the acts and ordinances of the United States in Congress assembled, conformable thereto. The inhabitants and settlers in the said territory shall be subject to pay a part of the Federal debts, contracted, or to be contracted, and a proportional part of the expenses of government to be apportioned on them by Congress, according to the same common rule and measure by which apportionments thereof shall be made on the other States; and the taxes for paying their proportion shall be laid and levied by the authority and direction of the legislatures of the district, or districts, or new States, as in the original States, within the time agreed upon by the United States in Congress assembled. The legislatures of those districts, or new States, shall never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find necessary for securing the title in such soil to the bonafide purchasers. No tax shall be imposed on lands the property of the United States; and in no case shall nonresident proprietors be taxed higher than residents. The navigable waters leading into the Mississippi and Saint Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other States that may be admitted into the confederacy, without any tax, impost, or duty therefore."

I guess I don't see how the article and it's referencing to the taxation of waterways is jurisdiction to creating regulations on use. "Free" in this context is of a monetary sense not in a "rules" context that has been argued here often.


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## toto (Feb 16, 2000)

Article IV is correct, but in reading different interpretations of this document, everyone of them maintains the free part isn't about taxation, but rather free, as in freedom to use.

You can argue the hooking mortality studies all you wish, but the bottom line is this, once a high ranking DNR official states in a newspaper article this isn't about science, its a social issue than all bets are off. If you read the NW a little closer, you will find that these issues are only to be created for conservation issues, and a social issue isn't a conservation, or a scientic reason for doing so. Put another way, by doing these new regs, its very possible that these new regs are unconstitutional.

Maybe this will help a little

http://www.adventuresports.com/river/nors/us-law-public.htm


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## WILDCATWICK (Mar 11, 2002)

> Article IV is correct, but in reading different interpretations of this document, everyone of them maintains the free part isn't about taxation, but rather free, as in freedom to use.
> 
> Read more at Michigan-Sportsman.com: The Michigan Sportsman Forums - Reply to Topic http://www.michigan-sportsman.com/forum/newreply.php?do=newreply&noquote=1&p=3715158#ixzz1RivexatK


I would love to read these interpretations. Because as it reads, all one sentence, there is no doubt it is free from tax, impost, and duty. It's as clear as can be, there need be no interpretations when it's stated. If you have time please link me those interpretations. I could not find any.




> f you read the NW a little closer, you will find that these issues are only to be created for conservation issues, and a social issue isn't a conservation, or a scientic reason for doing so.
> 
> Read more at Michigan-Sportsman.com: The Michigan Sportsman Forums - Reply to Topic http://www.michigan-sportsman.com/forum/newreply.php?do=newreply&noquote=1&p=3715158#ixzz1RixbRyDG


Can you show me this specifically Toto? I've read the whole document and did not see this at all. 

There are many social laws out there that have no science. Just because something is social certainly doesn't mean it's unconstitutional. All individuals can fish in Michigan. All have access. Is it unconstitutional that I can't use a motor on certain waterways or lakes when there is no safety issue or science to show it should not be allowed? 

I'll read the link you provided, thanks.


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## toto (Feb 16, 2000)

Read the 2nd link closely, remember I didn't write that. But, if you take the time to study the Public Trust Doctrine, and the Northwest Ordinance, you will find that what we believe, is correct. Remembering also, the NW is one of the "organic laws" of the United States.


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## WILDCATWICK (Mar 11, 2002)

O.K. I had a chance to read it and I assume you are referring to the statment,


> So what are the public&#8217;s rights to fish and boat on various rivers? As explained above, there are three levels of public rights to rivers and streams:
> 
> First, the public has the right to use all running waters, (even streams that are not physically navigable,) for activities such as fishing, (subject to state regulations to conserve fisheries,) and to walk along the banks as necessary to use these waters, in the manner that is least intrusive to private land.


If it is I'm perplexed on it's validity. The statement that is made is by an organization, not law or a Judges statement or more important ruling. Most of the page references historical judgments that has helped to shape The Public Trust Doctrine. Yet when it comes to the statement "to conserve fisheries" there is no reference to the court case. And it was not stated "above" on the page. I also read through numerous cases that were referenced above there was nothing found. It seems to me that it was just a word that was thrown in and has zero legal weight.

The Public Trust Doctrine is much more complicated than the extremely straight forward Northwest Ordinance because the Public Trust Doctrine is being shaped and re-shaped all the time by the courts. 

I can't find any specific wording that would support your claims. It seems you have spent a lot of time researching state and federal rulings that have shaped the Public Trust Doctrine. Maybe you can just reference us the exact laws or cases that show your argument. 

If you will please show me interpretations by Judges that show a different use of the word "Free" than for "tax, impost, and duty". 

And also where a law or Judge has stated that rules and laws are to only be created out of science and pure conservation. 

I appreciate the links that you have spent the time sending . But as of yet the evidence doesn't seem to support the claim.


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## toto (Feb 16, 2000)

I don't have a link to it right now, but look up the Mono Lake decision in California. The Supreme Court of Ca stated: The Public Trust in an affirmation of the duty of the state to protect the peoples common heritage of streams, lakes, marshland, and tidelands. This was 1983

Also, Joseph Sax is the acknowledged expert on the Public Truse Doctrine, so you could look up some of his work.

Of course you could read this too:

http://www.michiganliberal.com/diary/15910/a-few-words-on-the-public-trust-doctrine

Wild, one thing to consider; when the forefathers were writing documents, they were using language different than what we have today. I'm no expert, but in some of studies in college, it was commonly agreed that when using words, such as free, they weren't talking about anything other than free, as in liberty, or freedom. But I'll admit, I could be wrong on that, again I'm no expert. Just have an open mind to what we are saying, and all the different things that are said about this document, and you'll soon realize it isn't just us.

Heres what has been said in the courts in Michigan:

So long as the water flows and the fish swim in (the rivers), the people may fish at the their pleasure in any part of the stream, subject only to the restraints and regulations imposed by the state. In this right they are protected by a high, solemn, and perpetual trust, which it is the duty of the state to forever maintain. Michigan Supreme Court, Collins v Gerhardt, 237 Mich. 38,49 (1926)

Of course you could read this, after all its only 95 pages:

http://www.bepress.com/ils/iss4/sax.pdf


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## WILDCATWICK (Mar 11, 2002)

> I don't have a link to it right now, but look up the Mono Lake decision in California. The Supreme Court of Ca stated: The Public Trust in an affirmation of the duty of the state to protect the peoples common heritage of streams, lakes, marshland, and tidelands. This was 1983
> 
> Read more at Michigan-Sportsman.com: The Michigan Sportsman Forums - Reply to Topic http://www.michigan-sportsman.com/forum/newreply.php?do=newreply&noquote=1&p=3716100#ixzz1RpU2vcs7


I had read the Mono Lake decision as it's a basis for many cases since. But no where in that case can one take that social rules are unconstitutional. 

I don't believe that claim is at all true. As long as your constitutional rights are not infringed on they can make laws, social or not. Social rules on lakes and rivers are constitutional. So I don't think you have a case there at all unless you can show a direct link. In the gear restriction context there is no constitutional infringement.



> Wild, one thing to consider; when the forefathers were writing documents, they were using language different than what we have today. I'm no expert, but in some of studies in college, it was commonly agreed that when using words, such as free, they weren't talking about anything other than free, as in liberty, or freedom.
> 
> Read more at Michigan-Sportsman.com: The Michigan Sportsman Forums - Reply to Topic http://www.michigan-sportsman.com/forum/newreply.php?do=newreply&noquote=1&p=3716100#ixzz1RpUYZyd4


When it comes to your other contention of "Free" there are several things to look at. Forefathers and people use the word free meaning different things. But when it is _spelled out in one sentence_ and _even explained in that sentence_, the context to how they are using "free" there is no way to claim it mean's anything other than _"free" of " without any tax, impost, or duty therefore"_. I don't see how there is any other interpretations. It's simple and straight forward. If they meant "free" in any other context they would have spelled that out in the same sentence as well. They spelled it out so there would be no confusion..should be none.



> Heres what has been said in the courts in Michigan:
> 
> So long as the water flows and the fish swim in (the rivers), the people may fish at the their pleasure in any part of the stream, *subject only to the restraints and regulations imposed by the state*. In this right they are protected by a high, solemn, and perpetual trust, which it is the duty of the state to forever maintain. Michigan Supreme Court, Collins v Gerhardt, 237 Mich. 38,49 (1926)
> 
> Read more at Michigan-Sportsman.com: The Michigan Sportsman Forums - Reply to Topic http://www.michigan-sportsman.com/forum/newreply.php?do=newreply&noquote=1&p=3716100#ixzz1RpW07G55


I have read a quite bit of the Joeseph L. Sax and the rest I scanned but I think I've read enough. There is nothing in that statement that says they can't regulate some rivers and lakes based on social desires. 

Most court cases that I have read that have used the Public Trust Doctrine for verdict have delt with charging usage fees, with not allowing access (fences, blockage, and privatization) in which the Judges reference Northwest Ordinance "Free". Many of these cases were in your first link. 

There is no doubt that the Government is held in trust. They can never convey those responsibilities to others. They can never tax or charge usage fees. They however can make rules that govern usage as long as those rules don't infringe on you constitutional rights. And no has yet to show a ruling that shows anything otherwise.

I grew up living right on a river and Lake Huron. I'm familiar with the debate and how the Public Trust Doctrine has been used in Michigan. It was great to read the court cases too. Thanks again.

I'm not huge on gear restrictions, but I think having some is fine. There are a ton of social rules out there dealing with the outdoors and there is always going to be grey area. I do agree that the last round of restrictions were way over the top. There was no need for an increase at all. But I do believe our resources should be managed to give different experiences. I.E. some areas with no motors, some lakes and rivers that are used for research. If we didn't do some of these things how would the scientific community know what works and what doesn't. I would even love to see the scientific community do more research on different stretches. Change some of the gear restriction stretches and open up the current ones. But they need to do studies if they ever did this.

I thank you for you links and demeanor in discussing this matter. I've enjoyed reading all the information. But my eyes are starting to get crossed!:lol: So if you have anything else that supports your contention directly then I'll read on!


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## toto (Feb 16, 2000)

I too, commend you for the way you are handling this debate, and I also commend you for reading the stuff I've sent, I know there is alot to read, but how else ya gonna know?

Anyways, on the Mono Lake issue, yes this was a water diversion issue, but I found it interesting that they used the public trust doctrine to back up their ruling. You are also correct in that most of the PTD issues are involving water ACCESS rights, and not necessarily fishing rights.

However, the next link may help to further my point a little further. You'll, unfortunately, have to read this one a little closer as it says some things in there, about 3 or 4 pages in, that I think will go to my point. They are speakng of "special interests" in this case. Let me know what you think.

http://www.ielrc.org/content/a0804.pdf


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## Ranger Ray (Mar 2, 2003)

I believe our own DNR used the Public Trust Doctrine to remove the first fly's only water in Michigan, because the fact it was not implemented on the basis of science. Is that a precedent? :lol:


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## toto (Feb 16, 2000)

Obviously, yes it is. I've tried to find that case law, but as of yet, no luck. But I know that ruling does exist.


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## swampbuck (Dec 23, 2004)

Mershon's *law* was repealed....I believe you should be looking at the legislative record for 1928. The MDNR has never had the authority to make or change laws. I would call you Rep. and ask him to find it, Too bad Bradymsu isnt around.


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## REG (Oct 25, 2002)

bonefishbill said:


> There are plenty of waters in Michigan in which those that wish to fish their spinning, spin casting, --and worms, bait etc. The small percentage protected by gear regs are done for good reason. It is less damaging to a fish when caught on flies, in the mouth then hooked in the gut with a large hook -often treble --hence--better recovery when released...when gear regs are in effect. It's a good thing for the resource, and the economy of Michigan..
> 
> Why not just fish the "non regs" waters as you wish, or pick up a fly rod--and enjoy the benefit that "gear regs"--has all ready produced.


Bonefishbill, it is unfortunate to see the dogma of "gear restrictions are good" still being trotted out despite our responses repeatly noting multiple examples of objective evidence to the contrary. And, having an opinion that defies any extant evidence is OK, I guess; that is until those opinions are collectively forced down the at large angling public's throats.

Is 21% of "Blue Ribbon" trout water a "small percentage"? I guess in your book that's a small percentage. 

As far as being "protected"? Protected from what? The general angling public?

I guess for some, no matter how much systematic objective evidence is presented, the earth will always be flat, human disease eminates from bad humors and gear regs will be good for trout populations. 

Excuse me for now, Elvis wants to take my cheeseburger order.


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## broncbuster2 (Apr 15, 2000)

Ya see Reg;
They only put those gear regs out so the other states will come here to fish..
I say, Close everything to the other States.
Don't want em here, and we deffinatly don't need there know-it-all opinions.
They should stay out of michigan and let michiganders worry about michigan.


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## REG (Oct 25, 2002)

broncbuster2 said:


> Ya see Reg;
> They only put those gear regs out so the other states will come here to fish..
> I say, Close everything to the other States.
> Don't want em here, and we deffinatly don't need there know-it-all opinions.
> They should stay out of michigan and let michiganders worry about michigan.


:lol:


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