Published in Providence Business News (April 12-18, 2004)

If you think the appetite of unelected bureaucrats for gobbling up private property rights is ever satisfied, take a look at what is going on in Massachusetts concerning coastal regulations. And hope it doesn't spread to Rhode Island.

A special task force on ocean management issues created by Governor Romey's administration issued its preliminary report in December on guiding principles for the use and management of Massachusetts waters and ocean resources.

And while the report made a number of reasonable and sensible recommendations to eliminate overlapping jurisdiction, streamline permitting, improve and standardize data collected, and strengthen environmental protection, strong suggestions of Soviet-style collectivism could be found between the lines.

Consider their thoughts on the Public Trust Doctrine, a common law doctrine, different in each state, which defines the state's interest in its tidal land and waters for the benefit of the public. Massachusetts courts have defined the interest of the state in such land and waters as being subject to a trust for the purposes of fishing, fowling and navigation. The report sees the purpose of the trust "to manage resources in a way that preserves and enhances the public's right to use and enjoy the resources and when appropriate to allow certain private uses of trust resources".

Pretty broad. And keep in mind the Massachusetts Supreme Judicial Court, which should know, has specifically limited public trust purposes to the historic ones of fishing, fowling and navigation and rejected the concept that public trust uses extend to passage along the shore, bathing on the beaches or recreational uses.

The task force report indicates it was issued after "months of research". No doubt, but they may want to turn their attention to what Massachusetts chief authority on the common law, its Supreme Judicial Court, has to say about the scope of the common law doctrine of the public trust.

The distinction is not academic if you are a waterfront property owner, as you may not want the bureaucrats or the politicos on Beacon Hill telling you your beachfront cottage should be a new public beach resort.

But the assault on private property rights is just warming up. Seems the task force is not content with just setting "rental payments" from those who occupy tidelands and tidewater. Recall that in Massachusetts it was determined that certain property created by filling below mean high tide is owned by the State, for which rental is paid. (Rhode Island's Supreme Court wisely avoided this approach.)

Now it seems rental type payments aren't enough. The report says these fees are "artificially low" and should be "tied to the impacts caused by the regulated activity and/or the economic value of the regulated activity itself (along the lines of the royalty-type payments)"!

In other words, those who are willing to put their capital at risk, or who already have their capital at risk, since the report does not limit its recommendation only to future development, would have a new "investment partner" - the Commonwealth of Massachusetts.

Well, not exactly an investment partner, as presumably the thinking is that the Commonwealth participates only on the upside and because the report does not limit its recommendation only to new projects, presumably the long arm of the State could be reaching into the pocket of businesses already located in tidal lands if some on the task force have their way.

The Public Trust Doctrine was never intended to be a revenue-raising tool and the Commonwealth would be well advised to reconsider this proposal.

In the interim, watch out Rhode Islanders. Bad ideas which promise the state investment revenue without investment risk are like a virus - easy to catch and hard to get rid of.