Letter to the Gov. Part ll
Part II - Letter to the Governor
Public Trust Doctrine provides oversight of true fundamental public interest, and protection against corruption and the abuse of power. Historically rooted in Roman Civil Law and English Common Law, Public Trust Doctrine complements the representative democracy of American government. This Common Law dictates that the navigable waterways of our country are owned by the people, and held in trust by the State; not the United States Army. The management of Public Trust is a responsibility of State legislatures.
Public Trust Doctrine is Common Law that is dynamic and continuously evolving, as surely as the living document that is our Constitution. The courts have consistently found the use of our navigable waters for travel, fishing, and water related commerce, is traditionally a Public Trust application, with each State managing the resource for its people. Where concurrent state and federal authorities have indeed been present, they are implied as equal, with the balance of authority shifting according to the interests at stake. The courts will examine the circumstances and purpose of any federal or state action before applying the general principles of supremacy, or preemption; one over the other. Where federal authority relies on navigation servitude, it is limited to activities related to maintaining and improving navigation. Federal navigational servitude will not preempt State regulation of waters unless an act of congress is specific to the contrary, or, there is evidence that mismanagement by the state impedes interstate commerce.
The Supreme Court maintains a presumption against federal preemption in the area of traditional state authority. Where a state attempts to protect its public trust resources, its actions are less likely to be preempted, even where concurrent authority exists. The legal system is rife with case law upholding the principles of Public Trust Doctrine; far more often than not. It is up to the State to assert its sovereignty over its navigable waters, and protect the interests of the people. Tennessee has gone beyond the assumptions of Common Law, and is historically and legally on record, defining our navigable waters as “public highways” (TCA § 69-1-101). Further, the laws of our State protect our ownership of our rivers through TCA § 69-1-117 (a) “...no person shall authorize, undertake, or engage in any activity, practice, or project that has or is likely to have the effect of impairing or obstructing the navigability of any river...” (b) Consistent with the provisions of state common law and statutory law on navigability, the commissioner of environment and conservation shall promulgate rules, in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to establish and implement the permitting system required by subsection (a). No permit shall be issued for any activity, practice, or project that would violate the provisions of state common law or statutory law on the navigability of rivers, lakes, streams, and watercourses.
The State has the affirmative duty to fulfill trust responsibilities. It should not sit by idly while trust resources are seized. The State has an obligation to its people to fight for the retention of our rights as owners of our waters.
The USACE has wrongfully and autonomously usurped its authority in assuming control, and implied ownership, of prime sections of Tennessee’s Cumberland River. It has, in fact, used its own internal policy - without public input, or input from the Office of the Governor - to order the barricading of waters belonging to the people of Tennessee. The policy that the Corps insists forces its hand is 17 years old. None of the 6 previous commanders within that time has interpreted that policy to mean blocking access to our waters.
· They are not improving navigation.
· There has been neither acts of congress nor application of court orders that has preempted the State of Tennessee’s authority to manage the resource that is the Cumberland River.
· There is no evidence that action by the State of Tennessee has impeded interstate commerce along the Cumberland River.
· There is no history of concurrent authority in the managing of the tail-waters below Cumberland River Dams in Tennessee. TWRA has exercised oversight of our rivers.
· The USACE is not functioning, “... in the public interest.”
· There is no plausible rationale for the USACE to spend $2.6 million of federal funds to block access to our rivers, and impede the economic recovery of Tennessee’s outdoor, travel, and tourism industries.
We implore the Governor to exercise with all possible expediency, supreme executive power on behalf of the people of Tennessee. We beg that you set into motion the legal means at your disposal to stop all barricade construction along the Cumberland River in Tennessee, until such time as the USACE can legally justify preempting the State’s authority to manage the people’s river.
Thank you for your service to the people of Tennessee.
Most Sincerely,
Rick Duty – Gallatin
cc:
Robert E. Cooper Jr. – Attorney General
Claude Ramsey – Deputy to the Governor
Herbert Slatery – Counsel to the Governor
Bob Martineau Jr. – Commissioner – Environment and Conservation
Susan Whitaker – Commissioner – Tourist Development
John Schroder – Commissioner – Transportation
Barry Turner – Deputy Attorney General
Doug Markham – Doug Markham Outdoors
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