Report to the International Joint Commission on the Principles of the Public Trust Doctrine

Transcription

1 Request for Great Lakes Commons and Public Trust Principles for the International Joint Commission Report to the International Joint Commission on the Principles of the Public Trust Doctrine >>>> TABBED APPENDIX OF SUPPORTING MATERIALS <<<< November 30, 2011 Submitted on Behalf of Counsel of Canadians (Le Counseil des Canadiens) and Flow for Water (Couler pour L eau) Maude Barlow, Chair Council of Canadians James M. Olson, Chair Flow for Water

2 TABBED APPENDIX OF SUPPORTING MATERIALS TAB 1A TAB 1B TAB 1C TAB 2 TAB 3 Declaration that Great Lakes is a Commons with statement of principles based on Public Trust in the Great Lakes to protect these waters and their ecosystem as a shared living commons for present and future generations. Proposed new Guiding Principle for IJC based on the principles and standards of the public trust doctrine in order to integrate the IJC s decisions and programs, including the Great Lakes Water Quality Agreement, to protect the integrity of both the quantity and quality of the Great Lakes and the Great Lakes ecosystem. Proposed Public Trust Additions to Great Lakes Water Quality Agreement, as amended or renewed, to establish an affirmative duty to account for and integrate water quality and quantity effects on the integrity of the Great Lakes and ecosystem and rights of public use of these waters for present and future generations. Mission Statement and Goals and Guiding Principles of IJC. Memorandum of the History of Decisions, References, and Policies of IJC under the Boundary Waters Treaty. TAB 4 Illinois Central Railroad v Illinois, 146 U.S. 387 (1892). TAB 5 TAB 6 TAB 7 TAB 8 Memorandum on Treaty Rights of Native Americans, First Peoples, Great Lakes and the Public Trust Doctrine. Joint Letters From Requesting Presentation before the International Joint Commission, Sept. 8, IJC Acceptance and Invitation to, Oct. 13, Statement of Governor William G. Milliken on Water and Legacy of Public Trust. TAB 9 Boundary Waters Treaty of TAB 10 Summary of Threats, Losses, and Issues in Great Lakes Basin. -i-

3 Tab 1A Declaration that the Great Lakes Boundary Waters Are a Shared Commons and Public Trust The International Joint Commission does hereby resolve, declare and affirm: Whereas the International Joint Commission has jurisdiction over the Great Lakes boundary waters pursuant to the Boundary Waters Treaty of 1909, which declares the right of the public to use of these boundary waters is free and open; Whereas the International Joint Commission has jurisdiction over and is charged with the responsibility to protect the quantity or flows and levels and the quality free from pollution of these navigable waters; Whereas the Great Lakes boundary waters are a shared public resource held in public trust for the benefit, use and enjoyment of the citizens and inhabitants of the Great Lakes region and beyond; THEREFORE it is resolved and declared as follows: 1. That the Great Lakes boundary waters, including their navigable tributary waters, are a shared public resource held in public trust by the respective governments, or their respective provinces and states, for the benefit and protection of this right of public use and the use and enjoyment of present and future generations; 2. That the International Joint Commission shall ensure that these waters and the public trust in these waters shall not be alienated, subordinated, transferred, diverted, or removed for private purposes, ownership, or control. 3. That the International Joint Commission has a duty to ensure that these waters and the public trust in these waters shall not be impaired or polluted by any direct or indirect action or conduct affecting the quantity, quality, or ecosystem of these waters. 4. That the International Joint Commission and any governments, government boards commissions, or bodies, or governmental agencies, have a duty, in the exercise of their authority and responsibilities under the Boundary Waters Treaty, to consider and determine the effects, including cumulative effects, of any proposed use, diversion, obstruction or alteration of these waters, or public trust in these waters. That the cumulative effects of any past or proposed use will be considered, and if there is insufficient data, methodology, or insufficient reasonable scientific certainty, then the cumulative effect of impairment or pollution shall be presumed unless such presumption is overcome with sufficient and competent data and reasonable scientific certainty. In applying this burden of proof to protect the public trust in these waters, the Commission shall apply a precautionary approach as set forth in its Mission Statement and Guiding Principles, No

4 Tab 1A 5. That the substantial value to the government and the public of these waters and their use shall be presumed, and that the burden of proof is on those who have or propose to alter or use these waters, including the burden of proof regarding as to affect on the quantity, quality and biological, chemical, and physical integrity of the ecosystem. 2

5 Tab 1B Add Public Principles to the Mission Statement and Guiding Principles of the International Joint Commission The International Joint Commission Resolves to Amend its Mission Statement and Guiding Principles (shown in italics) as follows: MISSION STATEMENT The International Joint Commission prevents and resolves disputes between the United States of America and Canada under the Boundary Waters Treaty and pursues the common good of both countries as independent and objective adviser to the two governments. In particular, the Commission rules upon applications for approval of projects affecting the boundary waters and may regulate the operation of these projects; it assists the two countries in the protection of the transboundary waters, including the Great Lakes boundary waters, and the public trust in those boundary waters that are navigable; including the implementation of the Great Lakes Water Quality Agreement and the improvement of air quality; and it alerts the governments to emerging issues along the boundary that may give rise to bilateral disputes. GUIDING PRINCIPLES * * * 10. In water quantity, quality, and other environmental matters, the Commission affirms the concept of sustainable development, the ecosystem approach, the virtual elimination and zero discharge of persistent toxic substances, and that those boundary waters that are navigable are a shared public resource held in public trust for the benefit, health, safety, and general welfare of citizens who live within or are inhabitants of the Great Lakes basin or a transboundary river basin. While emphasizing the importance of a sound scientific basis for its conclusions and recommendations, the Commission also recognizes that it may sometimes be necessary to adopt a precautionary approach and to act even in the absence of a scientific consensus where prudence is essential to protect the public welfare and the public trust in the those boundary waters that are navigable from improper diversion, use, alienation, impairment or pollution. 1

6 Tab 1B For purposes of protecting the public trust for present and future generations, the Commission has a duty to prevent alienation, transfer, diversion, removal of such navigable waters for private purposes or control in violation of the public trust in those waters; and the Commission has a duty to protect the public trust in these waters, and right of protected public trust uses, from significant impairment or interference; and the Commission shall have the duty to consider and determine the effects, including cumulative effects, on the public trust, before it makes any decision, conclusion or recommendation, including implementation of the Great Lakes Water Quality Agreement; in connection with the precautionary principle approach, the Commission, to the extent of those matters affecting the public trust waters, uses thereof, or the ecosystem related to such waters, the substantial public value of these public trust waters shall be presumed; the burden of proof will be on those who propose to use, divert, or alter the public trust, or public trust waters, to show that such proposed action or conduct will not alienate, impair, or pollute the public trust waters, protected public uses, and their ecosystem. In order to protect the public trust in these waters, the Commission will consider and determine, in its conclusions and recommendations, the likely affects or impairment on the public trust in, or public trust uses of, those boundary waters that are navigable. 2

7 Tab 1C Declaration Regarding A Commons Framework and Public Trust Principles for the Great Lakes Water Quality Agreement The International Joint Commission does hereby resolve, declare and affirm: ACKNOWLEDGING that the Great Lakes Boundary Waters are a shared commons and public resource held in public trust for the benefit of the citizens for present and future generations; ACKNOWLEDGING that the shared commons in the Great Lakes Boundary Waters means that there is a shared responsibility by governments, including provinces and states, as trustees and careful stewards, to protect and restore these public trust waters and ecosystem for present generation and future generations; ACKNOWLEDGING that the protection and restoration of these public trust waters and ecosystem include both the interaction of quantity and quality of these waters, and their public trust uses, and the affects on flows or levels, pollution, or impairment of the Great Lakes boundary waters and ecosystem; IT IS AGREED as follows: 1. That the Great Lakes Boundary Waters as defined in the Treaty of 1909, and their navigable tributary waters, are held in public trust, and shall be managed and protected and restored consistent with this public trust. 2. That the protection and restoration of public trust in Great Lakes boundary waters, and ecosystem, will include a recognition that these waters are part of a single hydrological system within the Great Lakes Basin, including groundwater and non navigable tributary lakes, streams, or other connecting waters, as well as the hydrological cycle and potential affects from climate change. 3. That the principles under a commons framework and public trust in the Great Lakes Boundary Waters for purposes of the implementation of the Great Lakes Water Quality Agreement, as established, renewed, or amended from time tot time, shall include: a. The public trust waters, ecosystem, and the public right to use thereof, shall not be polluted or impaired, and that if it is determined that they have been polluted or impaired, there is a duty to restored to maintain the biological, chemical, and physical integrity of these waters and ecosystem.

8 Tab 1C b. The governments, boards, commissions, and other bodies or organizations charged with implementing the Great Lakes Water Quality Agreement will consider and determine the interactive affects on quantity and quality of these boundary waters and ecosystem. c. The governments shall implement the Great Lakes Water Quality Agreement through an affirmative duty to protect and restore these waters, the public trust in these waters, and the Great Lakes ecosystem. d. The substantial public and ecological value of these waters and their use shall be presumed, and that the burden of proof is on those who have or propose to alter or use these waters or public trust in these waters, including the burden of proof regarding affects on the quantity, quality and biological, chemical, and physical integrity of the Great Lakes ecosystem. e. That the duty to protect and restore these waters and public trust in these waters shall require a consideration and determination that there is and will not be likely impairment or pollution of the quantity and quality, or the interaction of quantity and quality, of these waters from any existing or proposed use, diversion, obstruction or alteration of these waters. f. That the cumulative effects of any proposed use will be considered and determined; and if there is insufficient data or insufficient methodology, or a lack of reasonable scientific certainty, then the cumulative effect of impairment or pollution shall be presumed unless such presumption is overcome with sufficient and competent data, methodologies, and reasonable scientific certainty.

9 Tab 2 ~.~ THE INTERNATIONAL JOINT COMMISSION AND THE BOUNDARY WATERS TREATY OF 1909 I

10 Tab 2 Iv MISSION STATEMENT & GUIDING PRINCIPLES MISSION STATEMENT The International Joint Commission prevents and resolves disputes between the Unit ed States of America and Canada under the 1909 Boundary Waters Treaty and pur sues the common good of both countries as an independent and objective adviser to the two governments. In particular, the Commission rules upon applications for approval of projects affect ing boundary or transboundary waters and may regulate the operation of these pro jects; it assists the two countries in the protection of the transboundary environment, including the implementation of the Great Lakes Water Quality Agreement and the improvement of transboundary air quality; and it alerts the governments to emerging issues along the boundary that may give rise to bilateral disputes. GUIDING PRINCIPLES 1. The Commission gives full effect to the spirit and purpose of its mandate as expressed in relevant agreements and references. 2. As a binational institution, the Commission maintains strict impartiality in the per formance of its duties. 3. Commissioners represent only the Commission and not the government that has appointed them. Advisers and staff members serve only the Commission and not their respective governments. Members of the Commission s boards or similar bodies serve on such bodies in their personal and professional capacity and not as representatives of the agencies or organizations that employ them. 4. While the Commission comprises two sections and maintains offices in Washing ton, Ottawa and Windsor, it remains a single integrated body working collegially in a 31

11 Tab 2 spirit of openness, mutual trust and confidence, and in the common interest of both countries. 5. The Commission seeks to achieve consensus wherever possible, both in its own deliberations and those of its boards and similar bodies. 6. The Commission employs joint fact-finding as a foundation for building consensus and determining appropriate action. 7. The Commission affords all parties interested in any matter before it a convenient opportunity to be heard. It promotes the engagement of state, provincial and munic ipal governments and other authorities in the resolution of these matters. 8. While directing its advice and assistance to governments, the Commission takes account of the need to foster public awareness of the issue in question and ensure that the public is able to contribute to the consideration and implementation of its assess ments by governments. 9. The Commission s advice must be not only independent and objective but also timely, well- founded, honest, and relevant. 10. In environmental matters, the Commission affirms the concept of sustainable development, the ecosystem approach, and the virtual elimination and zero discharge of persistent toxic substances. While emphasizing the importance of a sound scientif ic basis for its conclusions and recommendations, the Commission also recognizes that it may sometimes be necessary to adopt a precautionary approach and to act even in the absence of a scientific consensus where prudence is essential to protect the public welfare. 11. The Commission s rules of procedure must be in accordance with justice and equi ty. 12. The Commission adheres to the highest ethical standards in all its activities, 13. The Commission seeks to ensure the inclusion of appropriate expertise in the membership of its boards, while drawing that expertise from a diversity of sources on anon- discriminatory basis.. 32

12 Tab 3 MEMORANDUM To: Jim Olson From: Molly Krauza Re: Historical Analysis of IJC Decisions Related to a Commons Approach Date: 11/21/2011 I. Introduction This memorandum addresses whether the decisions of the International Joint Commission point to principles of a Commons approach and the public trust principle. The IJC has issued over 100 decisions since its creation in 1909 and many of the decisions, including the early ones, contain language and reasoning that is applicable to a Commons approach. In the following section, the decisions are split up based on the article of the Boundary Waters Treaty or Great Lakes Water Quality Agreement which grants the IJC jurisdiction over the matter. Each subsection begins with a statement of the rule(s) with regard to the matter being addressed by the IJC and then goes on to analyze whether this rule furthers a Commons approach. II. IJC Decisions and their Relationship to a Commons Approach The IJC s jurisdiction was granted in the Boundary Waters Treaty of 1909 (hereinafter the Treaty). Under article VII, the IJC shall have jurisdiction over and shall pass upon all cases involving the use or obstruction or diversion of the waters with respect to article III and IV of this treaty. 1 In order for a matter to come before the IJC, it should meet two requirements: 1) it must involve a boundary water, as defined in the preliminary article of the Boundary Waters Treaty (hereinafter the Treaty); and 2) it must regard an use, obstruction, or diversion that materially affects the level or flow of the boundary waters, or pollution by one party that injures the health or property of the other. 2 The term boundary water includes the waters from main shore to main shore of the lakes and rivers and connecting waterways along which the international boundary between the United States and the Dominion of Canada passes, including all bays, arms, and inlets thereof, but not including tributary waters which in their natural channels would flow into such lakes, rivers, and waterways, or waters flowing from such lakes, rivers, and waterways, or the water of rivers flowing across the boundary. 3 Boundary Waters In the 1925 Rainy Lake Reference, the IJC further clarified the term boundary waters in saying, boundary waters remain boundary waters until they finally leave the boundary, 1 Boundary Waters Treaty, art. VIII, Jan. 11, Id. at art. III & IV. 3 Id. at preliminary article. 1

13 Tab 3 irrespective of whether or not these waters, at any given point, flow in equal volume on both sides of that imaginary line which constitutes the international boundary Boundary waters are still boundary waters even though part of those waters flows in a channel through which the boundary passes and part of the waters flow through a Canadian channel, or through a channel entirely within the United States. Water which once is a boundary water remains a boundary water insofar as its use under the treaty is concerned, no matter where the water flows, until it finally leaves the boundary and flows through either Canada or the United States to its ultimate destination in their ocean. 4 Several other orders of approval and references further flesh out what a boundary water is in terms of the IJC s jurisdiction over such waters. 5 An expansive definition of the boundary waters allows for the Commission to address the majority of uses, obstructions, or diversions within the Great Lakes, providing for impartial and fair management of these waters. Additionally, the Great Lakes Water Quality Agreement of 1978 (hereinafter the Agreement) expanded and affirmed the powers, responsibilities, and functions of the IJC. First, the IJC was given increased information-gathering power under article IX, and certain provisions of article VII of the Agreement. 6 Second, the IJC is responsible for tendering advice and recommendations to the Parties and to the States and Provincial governments relating to the quality of the boundary waters of the Great Lakes system. Third, the Agreement affirmed the IJC s powers to conferred upon it by the Boundary Waters Treaty and by any legislation passed pursuant thereto including the power to conduct public hearings and to compel the testimony of witnesses and the production of documents. 7 Use or Obstruction or Diversion That Materially Affects the Other Party Article III of the Treaty requires the IJC s approval of any use, obstruction or diversion, whether temporary or permanent, of boundary waters on either side of the line, which affect the natural level or flow of those waters. 8 In the IJC s first opinion, the Commission describes the terms of article III as plain, simple, and direct. 9 Article III requires that applications to the commission must show a proposed use, obstruction or diversion of the kind and character described in the article ( affecting the natural level or flow of the boundary waters on the other side of the line ). 10 For example, in 1965 the St. Croix Paper Company requested that the IJC approve the construction of a replacement storage dam and fish passage facility at the foot of 4 Id. at, art. III & IV. 5 Final Report of the Commission on the Rainy Lake Reference, Docket 20R (1934); Final Report of the Commission in the Matter of Reference by the U.S. and Canada Relative to the Pollution of Boundary Waters, Docket 4R, p. 5 (8/1/1912). 6 Great Lakes Water Quality Agreement, art. VII(a)-(b); art. IX, Nov. 18, Id. at art. VII(2) (emphasis added). 8 Supra note 1, art. III. 9 In the Matter of the Application of Rainy River Improvement Co. for Approval of Plans at Kettles Falls, Order of Approval, Docket 1A, p.7 (4/13/1913). 10 Id. See also Boundary Waters Treaty art. III. 2

14 Tab 3 Spednik Lake. This proposed use and/or obstruction would have the effect of reducing the levels of Spednik Lake, and it would also be potentially detrimental to fish life, pollution abatement, and recreation downstream in the St. Croix River. 11 Because this case was one of the kind and character described in article III of the Treaty, the IJC s authority allowed it to render a decision on whether to approve the re-building of this dam. The Commission s first opinion also noted an important purpose of article III, which is to, at minimum, prevent irritation and resentment, or potential international controversy when one party s actions injuriously affect the other party. In using an approach of common control over the uses of boundary waters, the IJC has the power to condition proposed uses, obstructions, or diversions on construction or remedial protective works on the other side, or on providing for protection and indemnity against injury to interests on the other side, 12 so as to maintain comity between the two Parties. Again using the St. Croix Paper Co. matter as an example, the conditions imposed on the company s approval included that St. Croix Paper Co., and St. Croix Water Co. are responsible for physical injury or damage to persons or property in the United States and Canada, respectively, for claims in connection with the construction, maintenance, and operation of the storage dam. 13 This provision furthers the Commons principles of the joint responsibility of citizens and their elected governments based on notions of social equity, ecological survival, and governance by the persons most impacted. 14 Moreover, it holds the person who is responsible for the injury accountable and allows for the persons most impacted to seek redress. This power to protect and indemnify the injured interests of another, and the power to condition approvals on remedial or protective works are found in article VIII of the Treaty. 15 These types of conditions have been applied to several IJC Orders of Approval over the last century, like the application for construction and operation of Grand Coulee Dam and Reservoir, which would raise the natural water level by approximately two feet. 16 In this approval, the IJC s first condition was that the Applicant make adequate and suitable provision, to the satisfaction of the Commission, of the indemnification of all interests of British Columbia by reason of 11 In the matter of the Application of the St. Croix Paper Co. of Woodland, Maine, For Approval of the Construction of a Storage Dam in the St. Croix River at Vanceboro, Maine, & St. Croix, New Brunswick, Order of Approval, Docket No. 80, p. 2 (10/15/1965). 12 Supra note 9, p Supra note 11, p See MAUDE BARLOW, OUR GREAT LAKES COMMONS: A PEOPLE S PLAN TO PROTECT THE GREAT LAKES FOREVER, 24 (The Council of Canadians, 2010). 15 Supra note 1, art. VIII. ( The Commission in its discretion may make its approval in any case conditional upon the construction of remedial or protective works to compensate so far as possible for the particular use or diversion proposed, and in such cases may require that suitable and adequate provisions, approved by the Commission, be made for the protection and indemnity against injury of any interests on either side of the boundary. This also applies to cases involving the elevation the natural levels of waters on either side of the line as a result of the construction or maintenance on the other side.) 16 In the matter of the Application of the U.S. for Construction & Operation of Grand Coulee Dam & Reservoir, Order of Approval, Docket 44A (12/15/1941). 3

15 Tab 3 damage resulting from the construction and operation of Grand Coulee Dam and Reservoir. 17 The IJC approvals, conditioned on protecting and indemnifying the injured interests of another, employ the polluter-pays principle and ensure that any adverse effects of an use, obstruction, or diversion will not be borne by the public. A final note on article III is that it does not give IJC authority to hear cases of special agreement. These are cases in which there is a mutual arrangement between the two Parties, expressed through concurrent or reciprocal legislation on behalf of Congress and Parliament. 18 In these cases, the parties, through mutual agreement, have eliminated the need for the IJC s jurisdiction over a certain matter. Special agreements should be just as effective as IJC decisions, though, because they still require the Parties and persons interested in the boundary waters to manage and protect the Great Lakes cooperatively. Transboundary Pollution Since its creation, the IJC has been investigating and addressing pollution of the boundary waters, per its obligation under article IV that the boundary waters and waters flowing across the boundary shall not be polluted on either side to the injury or health or property on the other. 19 In 1912, the Parties asked the IJC to examine and report on the extent to which the boundary waters are so polluted as to be injurious to the public health and unfit for domestic or other use. 20 A reference such as this can be very powerful because the outcome has the potential to affect the physical health of millions of people who dwell along these waters, as well as the financial and other interests of the eight states and three provinces. 21 Over time, the IJC continued to make recommendations and draw conclusions based on the pollution problems throughout the Great Lakes. One critical component of these opinions is that they address transboundary effect(s) injurious to health or property. 22 However, in the first pollution reference, the Commission refuses to accept a literal interpretation of Article IV s language in that it can only address pollution which actually crosses the boundary line and has a transboundary effect. 23 Additionally, even in cases where transboundary evil results cannot be proved the probability of the pollution on one side passing over or affecting the waters of the other side of the boundary line is so great that the inhabitants on the latter side should not be forced to run the consequent risk to life, health, and property Id. at p Supra note 9, p Supra note 1, art. IV. 20 Final Report of the Commission in the Matter of Reference by the U.S. and Canada Relative to the Pollution of Boundary Waters, Docket 4R, p. 5 (8/1/1912). 21 Id. at, p Id. at p Id. at p Id. at p

16 Tab 3 Furthermore, this first pollution reference provides reasoning as to why article IV was included in the Treaty: it might not be straining too much of the language of the treaty to regard it as indicative of national ownership or sovereignty rather than location this construction, for instance, would prohibit the pollution of Canadian boundary waters that might injure citizens of the United States who for the time being were exercising their right to free and open navigation of these waters. 25 Essentially, this provision has the same effect as the IJC s jurisdiction over the uses, obstructions, and diversions which allow for the harmonious and cooperative management of the Great Lakes Basin; to protect all of the interests on each side of the boundary to the extent practically possible. The principles of beneficial use and cooperative management of the boundary waters, especially in regards to pollution of those waters, are in accordance with the common law public trust doctrine. The first pollution reference reasoned that a riparian owner is allowed the ordinary and reasonable use of water on his or her property; in other words, it gave every riparian owner a right to the water of his stream, in its natural flow, without a sensible alteration in its character or quality. 26 Additionally, these principles are applicable to public bodies as well as private persons. While private rights, however, may be overridden by the acquisition of a prescriptive right, public rights cannot. 27 In applying this doctrine, it seems that the IJC is recognizing an important Commons principle, which is that the natural resources central to our existence must be protected for the public, and persons cannot be denied access to those resources. 28 Finally, this reference noted the importance of local power and management over boundary waters. The reference stated that, in treating sewage, the extent of treatment required is controlled by local, rather than general conditions. By this statement it is meant that while conditions exist in many instances which are in substantial contravention of treaty obligations, their immediate local effect is much more serious than their effect upon the stream as a whole. Remedies sufficient to meet the local conditions would be ample to meet the international situation. 29 A Commons approach encourages this local level decision-making, and for sufficient remedies at the local level which do not have the race to the bottom effect. 30 The Commission revisited the problem of pollution in 1946, reporting on the pollution in the St. Claire River and Detroit River. Unfortunately, the IJC saw an increase in pollution from all the infamous sources: municipal, industrial, navigation, and dredging. 31 This pollution reference also established water quality objectives; a concept which is incorporated into the Great Lakes Water Quality Agreement. The general objective for this watershed is to ensure that wastes that are discharged will not create conditions in the boundary waters which will 25 Id. at Id. at Id. 28 Supra note 14 at Supra note 21 at Supra note 14 at Report of the Commission on the Pollution of Boundary Waters, Docket 54, p.6 (10/11/1950). 5

17 Tab 3 adversely affect the use of those waters for the following purposes: source of domestic water supply, source of industrial water supply, navigation, fish and wildlife, bathing, recreation, agricultural, and other riparian activities. 32 The IJC Report on the Pollution of the Red River has similar objectives to that of the general objectives established in the preceding report, and these objectives are to be employed by the two Parties, as well as the States of Minnesota and North Dakota. 33 Essentially, the general objectives in regards to pollution of the boundary waters are to keep the waters drinkable, fishable, swimmable, recreation-friendly, and to be able to sustain agricultural uses. Likewise, in the Pollution of Lake Erie Report, the IJC proposes general objectives for the Parties when battling pollution, but these objectives are more specific, and eventually become adopted into the Great Lakes Water Quality Agreement. 34 These objectives include: being free from industrial and municipal pollution, which will free citizens of this watershed from sludge deposits, floating debris, oil, and scum, toxic or harmful discharges, nutrient growth, or other nuisance-like conditions. 35 Other pollution references have been made regarding air pollution 36 and non-point source pollution 37. References related to other sources of pollution indicate a willingness to take an ecosystem approach to pollution in the Basin and show a recognition of the effect of land activities on water quality, which is important for the holistic protection of the Great Lakes Basin Ecosystem. Other Questions of Rights, Obligations, or Interests of the Parties that Relate to the Boundary Waters. In addition to the Article III and IV cases which come before the IJC, article IX of the Treaty allows the Parties to refer any other questions or matters of difference arising between [the Parties] involving the rights, obligations or interests of either in relation to the other or to the inhabitants of the other, along the common frontier between [the two countries, to the Commission. 38 However, any IJC conclusions or recommendations regarding matters brought under article IX shall not be regarded as decisions of the questions or matters so submitted either on the facts or the law." 39 Still, though, the IJC has provided advice under this provision several times, and the matters at issue ranged from determining tidal power potential to 32 Id. 33 Report of the commission of the Pollution of the Red River, Docket 81, p. 30 (April 1968). 34 See supra note 6, art. III (general objectives). 35 Pollution of Lake Erie, Lake Ontario, and the Int l Section of the St. Lawrence River, Docket 83R, p. 85 (1964). 36 Termination of the Commission Activities on Vessel Smoke Survelliance in the Detroit River under the 1949 Air Pollution Reference, Docket 61R (1/12/1949); Transboundary Air Pollution: Detroit & St. Clair River Areas, Docket 85R (1972); Air Quality in the Detroit-Windsor & Port Huron-Sarnia Region, Docket 99R (Feb. 1992). 37 Pollution in the Great Lakes Basin from Land Use Activities, Docket 99R (March 1980). 38 Supra note 1, art. IX. See also Final Report of the Commission on the Rainy Lake Reference, Docket 20R (5/1/1934). 39 Supra note 1, art. IX. 6

18 Tab 3 determining whether regulating of lake levels is necessary; 40 and often this provision is determining the beneficial use of a certain boundary water or boundary watershed. 41 Including a catch-all provision such as this allows for flexibility in addressing Great Lakes issues that affect the Boundary Waters, but may not fall neatly into the categories of use, diversion, or obstruction, or transboundary pollution. The Many Uses of the Boundary Waters Article VIII of the Boundary Waters Treaty sets an order of precedence for use of these waters, and a use will not be permitted if it materially conflicts or restrains a use with a higher preference. The order of preference is the following: 1) uses for domestic and sanitary purposes; 2) uses for navigation; and 3) uses for power and irrigation purposes. 42 The fact that some uses have precedence over others is evidenced in decisions and recommendations made by the IJC. For example, in 1968 the Raisin Region Conservation Authority applied to the Commission asking to divert water from the St. Lawrence River to the Raisin River watershed, for the purposes of providing a reliable source of water for farms and villages, an improvement environment for fish and wildlife, and an increase in the recreational and aesthetic values of the Raisin River. In this case, the diversion was alleged to affect the hydro-power interests of the Hydro-Electric Power Commission of Ontario and the Power Authority of New York, and New York opposed this diversion because it would affect power interests. 43 However, testimony from the International St. Lawrence River Control Board stated that this proposed diversion would have no measurable effect on downstream uses. In the end, the Commission approved the diversion to provide a reliable source of water for the public use, while still providing for conditions which protect against the potential adverse effects on another use (power). 44 The IJC s already-established precedence of uses seems to align with certain principles of a Commons approach to the Great Lakes, like the idea that the waters must be equitably and justly shared among many competing interests, and that water systems of the Great Lakes Communities should remain under the public management. Setting a precedence of uses where domestic and sanitary uses come first, and prohibiting pollution of the boundary waters, 40 Report of Commission To U.S. & Canada on the Int l Passamaquoddy Tidal Power Project, Docket 72R (April 1961); Final Report of the Commission on the Lake of the Woods Reference, Docket 3R (6/12/1917). 41 Id. See also: Interim Report to the Gov ts of U.S. & Canada on the Water Resources of St. John River Basin, Docket 63 (1/27/1954) (whether the waters of the St. John River Basin can be more beneficially conserved and regulated, and determine if this would be practical and in the public interest); A Reference to Investigate and Report on Improving St. Lawrence Navigation and Power, Docket 17R, p.9 (1/6/1921)(the Parties referred questions involving the beneficial use of the waters of the St. Lawrence River, between Montreal and Ontairio, in the interests of both countries, and in general, the rights, obligations, or interests of either in relation to the other, or to the inhabitants of the other along their common frontier ). 42 Supra note 1, art. VIII. 43 In the matter of the Application of the Raisin Region Conservation Authority for Approval of Diversion of Water from Lake St. Lawrence in the St. Lawrence River to the Raisin River Watershed in Ontario, Order of Approval, Docket 88A (12/31/1968). 44 Id. at p.5. 7

19 Tab 3 emphasizes the Parties obligation to ensure that there is enough fresh water for all citizens of the Great Lakes, on both sides of the boundary waters. For assistance in managing the many uses, obstructions, and diversions approved in the boundary waters, International Control Boards are appointed by the Commission to regulate at a more local level. These control boards are given the authority to enforce orders of approval. 45 Again, the control boards exemplify more commons principles, namely that constant and careful management of the Basin is taking place, and that decisions are made on a more local level. In asking questions about uses, the Parties are often wondering whether a use is practicable and desirable for public convenience and necessity. 46 This concern seems to favor the public use of the water, i.e. for domestic and sanitary purposes, as opposed to private interests, which is often the case in navigation, power, and irrigation purposes. In addition, issues related to regulation of the boundary waters depend on whether the regulation will maximize the beneficial use of the lakes, while not adversely affecting any other interests in the Basin. In the IJC reference exploring further regulation of the Great Lakes, the Commission looked at how man has affected the natural levels of the boundary waters, and how regulation of the boundary water levels affects the following interests: private and public shore property; fish, wildlife, and recreation; boating and navigation; and hydro-electric power production. 47 In this reference, the Commission did not find any significant change in the natural levels of the lake due to man-made activities, but it did still emphasize the importance of evaluating proposed uses of the waters on a basin-wide level. 48 Furthermore, this reference expressly recognized the importance of the Great Lakes as a massive ecological and economical centerpiece for the whole mid-continent, affecting its industry, its agriculture, its total lifestyle and character, and must be seen therefore as a whole bi-national treasure and as a bi-national responsibility. 49 In sum, the Treaty and the IJC s decisions take into account the many potential uses of the Great Lakes and holds the public s domestic and sanitary use of the water at a higher level than other uses, which is consistent with the Commons approach and the public trust doctrine. Through the treaty, and subsequently the Agreement, Canada and the United States have 45 An Application by Creston Reclamation Co. Ltd. to reclaim flooded lands in Duck Lake, Order of Approval, Docket 48A (8/6/1949). Several other matters on the IJC docket are enforced by Control Boards, including matters discussed in the following: Docket 3R (establishes the Int l Lake of the Woods Board of Control); Dockets 6A, 8A (Int l Lake Superior Board of Control); Dockets 10A, 18A, 28A, 32A (Int l St. Croix River Board); Dockets 27A, 29A, 34A, 39A (Int l Kootenay Board of Control) ; Docket 38A (Int l Lake Champlain Board); Docket 40A, Docket 50A (Int l Rainy River Board of Control); Docket 41 (Int l Souis River Board); Docket 44A (Int l Colombia River Board of Control), and many more. For full IJC docket, see Boundary Waters Treaty Centennial Website, (last viewed 11/21/2011) (follow For Researchers link, and gain access to the IJC docket). 46 Report of the Commission on an International Passamaquoddy Tidal Power Project, Docket 60R, p.1 (11/9/1948). 47 Further Regulation of the Great Lakes, Reference, Docket 82R, p. 1 (6/3/1976). 48 Id. at 5 (discussing how the interests of an upstream property owner often conflict with the interests of another user, i.e. a downstream property owner, which is why uses should not be considered individually). 49 Id. at 3. 8

20 Tab 3 acknowledged their duty to protect the boundary waters for all citizens of the Basin, and not just the citizens of their respective countries. III. Conclusions Several provisions of the Boundary Waters Treaty grant the Commission the ability to manage and protect the boundary waters on a bi-national scale. Article III prevents either party from using, obstructing, or diverting these waters to the detriment of the other party. Similarly, article IV prohibits transboundary pollution, and several recommendations of the IJC relate to curing the pollution problems of the Great Lakes Basin, especially nearshore pollution problems. Further, when the Parties feel that matters need to be addressed by the IJC, article IX provides an avenue for advice on other questions of rights, obligations, or interests of the Parties related to the boundary waters. Finally, article VIII lists an order of preferred uses in the Basin, and has the effect of forcing decision-makers to continuously balance all interests involved, giving precedence to certain uses when two or more are in conflict with each other. All of these provisions support, to some degree, the implementation of a Commons approach in the Great Lakes Basin, but they have not in fact led to an accepted Commons approach in the Basin. The many uses of the Great Lakes and the constantly competing interests in this amazing, interconnected freshwater system necessitate a common, holistic approach in order to adequately protect and maintain the boundary waters, and the legal framework for doing so already exists. 9

21 Tab 4 13 S.Ct. 110 Page U.S. 387, 13 S.Ct. 110, 36 L.Ed (Cite as: 146 U.S. 387, 13 S.Ct. 110) Supreme Court of the United States. ILLINOIS CENT. R. CO. v. STATE OF ILLINOIS et al. CITY OF CHICAGO v. ILLINOIS CENT. R. CO. et al. STATE OF ILLINOIS v. ILLINOIS CENT. R. Co. et al. Nos. 419, 608, 609. December 5, Appeals from the circuit court of the United States for the northern district of Illinois. Modified and affirmed. Water Law Water Law West Headnotes 405XV Navigable Waters 405XV(B) Rights of Public 405XV(B)5 Obstruction of Navigation in General, Injury, and Remedies 405k2616 Piers, Dams, and Cables 405k2618 k. Authority to construct and maintain, or to authorize construction and maintenance. Most Cited Cases (Formerly 270k22(1) Navigable Waters) In respect to the lots lying north of Randolph street, in Chicago, and the lots in front of Michigan avenue, all bordering on the lake, and to which defendant railroad company acquired the fee by purchase, it was vested with riparian rights, and thereby became entitled to construct piers, not extending beyond the point of navigability. Water Law Water Law 405XV Navigable Waters 405XV(C) Lands Under Water 405XV(C)1 Ownership and Control in General 405k2646 Ownership by State 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

22 Tab 4 13 S.Ct. 110 Page U.S. 387, 13 S.Ct. 110, 36 L.Ed (Cite as: 146 U.S. 387, 13 S.Ct. 110) 405k2647 k. In general. Most Cited Cases (Formerly 270k36(1) Navigable Waters) The common-law doctrine as to the dominion, sovereignty, and ownership of lands under tide waters on the borders of the sea applies equally to the lands beneath the navigable waters of the Great Lakes; and in this country such dominion, sovereignty, and ownership belongs to the states, respectively, within whose borders such lands are situated, subject always to the right of congress to control the navigation so far as may be necessary for the regulation of foreign and interstate commerce. Water Law Water Law 405XV Navigable Waters 405XV(C) Lands Under Water 405XV(C)2 Grants to and Acquisition by Private Owners or Municipalities 405k2676 k. Power to grant. Most Cited Cases (Formerly 270k37(2) Navigable Waters) The title which a state holds to lands under tide waters bordering on the sea or under the navigable waters of the Great Lakes, lying within her limits, is different in character from the title of the state to lands intended for sale, or from that of the United States to the public lands which are open to pre-emption and sale. It is a title held in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein, free from obstruction or interference by private parties, and it is not within the legislative power of the state to abdicate this trust by a grant whereby it surrenders its property and general control over the lands of an entire harbor, bay, sea, or lake, though it may grant parcels thereof for the foundations of wharves, piers, docks, and other structures in aid of commerce, or parcels which, being occupied, do not substantially impair the public interest in the waters remaining. Water Law Water Law 405XV Navigable Waters 405XV(C) Lands Under Water 405XV(C)2 Grants to and Acquisition by Private Owners or Municipalities 405k2676 k. Power to grant. Most Cited Cases (Formerly 270k37(2) Navigable Waters) Act Ill. April 16, 1869, Laws p. 245, purporting to grant to the Illinois Central Railroad Company all the right and title of the state to the submerged lands constituting the bed of Lake Michigan, for one mile from the shore opposite the company's tracks and breakwater in the city of Chicago, to be held in perpetuity without power to alienate the fee, was in excess of the legislative power of the state, and inoperative to affect, modify, or in any respect control the sovereignty and dominion of the state over such lands, or its ownership thereof, and was annulled by the repealing act of April 15, 1873, which was valid and effective to that extent. Water Law Water Law 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

23 Tab 4 13 S.Ct. 110 Page U.S. 387, 13 S.Ct. 110, 36 L.Ed (Cite as: 146 U.S. 387, 13 S.Ct. 110) 405XV Navigable Waters 405XV(C) Lands Under Water 405XV(C)3 Reclamation and Improvement 405k2702 k. Abatement and injunction. Most Cited Cases (Formerly 270k38 Navigable Waters) The reclamation by the Illinois Central Railroad Company from the waters of Lake Michigan of a tract 200 feet wide, extending along the front of the city of Chicago, and the construction of its tracks, crossings, guards, etc., and the erection of the breakwater on the east thereof, and the necessary works for the protection of the shore on the west, all as required by the ordinance under which it was permitted to enter the city, did not interfere with any useful freedom in the use of the waters of the lake for commerce,-foreign, interstate, or domestic,-or constitute such an encroachment upon the domain of the state as to require the interposition of a court for their removal, or for any restraint in their use. Water Law Water Law 405XV Navigable Waters 405XV(C) Lands Under Water 405XV(C)3 Reclamation and Improvement 405k2690 k. In general. Most Cited Cases (Formerly 270k38 Navigable Waters) The railroad company did not, however, acquire, by such reclamation, an absolute fee in the lands reclaimed, or any right of use, disposal, or control, except for a right of way and for railroad purposes; nor did it thereby acquire any rights, as a riparian owner, to reclaim still further lands from the lake for its use, or for the construction of piers, docks, and wharves in furtherance of its business. Water Law Water Law 405XV Navigable Waters 405XV(C) Lands Under Water 405XV(C)3 Reclamation and Improvement 405k2691 k. Right to reclaim or improve submerged lands in general. Most Cited Cases (Formerly 270k38 Navigable Waters) In respect to the lots lying north of Randolph street in Chicago, and the lots in front of Michigan avenue, all bordering on the lake, and to which defendant railroad company acquired the fee by purchase, it was vested with riparian rights, and thereby became entitled to fill up the shallow waters of the lake. Water Law Water Law 405VI Riparian and Littoral Rights 405VI(A) In General 405k1228 Nature and Extent of Rights in General 405k1231 k. Title and rights in general. Most Cited Cases 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

24 Tab 4 13 S.Ct. 110 Page U.S. 387, 13 S.Ct. 110, 36 L.Ed (Cite as: 146 U.S. 387, 13 S.Ct. 110) (Formerly 270k39(1) Navigable Waters) The fee in the streets, alleys, commons, and public grounds, as exhibited on the maps of subdivision of fractional sections 10 and 15, lying in the lake front of Chicago, is vested in the city, together with the riparian rights appertaining thereto; and these rights were not divested by the fact that the Illinois Central Railroad occupied the lands underlying the immediate front, and filled them in for its right of way, under authority of a city ordinance; and the city still has the right to exercise such riparian rights, subject to the terms of the ordinance and to the authority of the state to prescribe the lines beyond which no structures may be extended, and also subject to such supervision and control as the United States may lawfully exercise. Water Law Water Law 405VI Riparian and Littoral Rights 405VI(A) In General 405k1246 Right to Wharf Out, Build Docks, and Support Shore 405k1248 k. Right to construct or maintain. Most Cited Cases (Formerly 270k43(2) Navigable Waters) In respect to the lots lying north of Randolph street, and the lots in front of Michigan avenue, in the city of Chicago, all bordering on the lake, and to which a railroad company acquired the fee by purchase, it was vested with riparian rights, and thereby became entitled to fill up the shallow waters of the lake, and to construct piers, wharves, docks, and slips not extending beyond the point of navigability. **110 *414 B. F. Ayers and *430 John N. Jewett, for Illinois Cent. R. co. *419 John S. Miller and *423 S. S. Gregory, for the City of Chicago. *429 George Hunt, for the State of Illinois. *433 Mr. Justice FIELD delivered the opinion of the court. This suit was commenced on the 1st of March, 1883, in a circuit court of Illinois, by an information or bill in equity filed by the attorney general of the state, in the name of its people, against the Illinois Central Railroad Company, a corporation created under its laws, and against the city of Chicago. The United States were also named as a party defendant, but they never appeared in the suit, and it was impossible to bring them in as a party without their consent. The alleged grievances arose solely from the acts and claims of the railroad company, but the city of Chicago was made a defendant because of its interest in the subject of the litigation. The railroad company filed its answer in the state court at the first term after the commencement of the suit, and upon its petition the case was removed to the circuit court of the United States for the northern district of Illinois. In May following the city appeared to the suit and filed its answer, admitting all the allegations of fact in the bill. A subsequent motion by the complainant to remand the case to the state court was denied. 16 Fed. Rep The pleadings were afterwards altered in various particulars. An amended information or bill was filed by the **111 attorney general, and the city filed a cross bill for affirmative relief against the state and the company. The latter appeared to the cross bill, and answered it, as did the attorney general for the state. Each party has prosecuted a separate appeal Thomson Reuters. No Claim to Orig. US Gov. Works.

25 Tab 4 13 S.Ct. 110 Page U.S. 387, 13 S.Ct. 110, 36 L.Ed (Cite as: 146 U.S. 387, 13 S.Ct. 110) The object of the suit is to obtain a judicial determination of the title of certain lands on the east or lake front of the city of Chicago, situated between the Chicago river and Sixteenth street, which have been reclaimed from the waters of the lake, and are occupied by the tracks, depots, warehouses, piers, and other structures used by the railroad company in its business, and also of the title claimed by the company to the submerged lands, constituting the bed of the lake, lying east of its tracks, within the corporate limits of the city, for the distance of a mile, and between the south line of the south pier near Chicago river, extended eastwardly, and a line *434 extended in the same direction from the south line of lot 21 near the company's roundhouse and machine shops. The determination of the title of the company will involve a consideration of its right to construct, for its own business, as well as for public convenience, wharves, piers, and docks in the harbor. We agree with the court below that, to a clear understanding of the numerous questions presented in this case, it was necessary to trace the history of the title to the several parcels of land claimed by the company; and the court, in its elaborate opinion, (33 Fed. Rep. 730,) for that purpose referred to the legislation of the United States and of the state, and to ordinances of the city and proceedings thereunder, and stated, with great minuteness of detail, every material provision of law and every step taken. We have with great care gone over the history detailed, and are satisfied with its entire accuracy. It would therefore serve no useful purpose to repeat what is, in our opinion, clearly and fully narrated. In what we may say of the rights of the railroad company, of the state, and of the city, remaining after the legislation and proceedings taken, we shall assume the correctness of that history. The state of Illinois was admitted into the Union in 1818 on an equal footing with the original states, in all respects. Such was one of the conditions of the cession from Virginia of the territory notrhwest of the Ohio river, out of which the state was formed. But the equality prescribed would have existed if it had not been thus stipulated. There can be no distinction between the several states of the Union in the character of th jurisdiction, sovereignty, and dominion which they may possess and exercise over persons and subjects within their respective limits. The boundaries of the state were prescribed by congress and accepted by the state in its original constitution. They are given in the bill. It is sufficient for our purpose to observe that they include within their eastern line all that portion of Lake Michigan lying east of the mainland of the state and the middle of the lake, south of latitude 42 degrees and 30 minutes. *435 It is the settled law of this country that the ownership of and dominion and sovereignty over lands covered by tide waters, within the limits of the several states, belong to the respective states within which they are found, with the consequent right to use or dispose of any portion thereof, when that can be done without substantial impairment of the interest of the public in the waters, and subject always to the paramount right of congress to control their navigation so far as may be necessary for the regulation of commerce with foreign nations and among the states. This doctrine has been often announced by this court, and is not questioned by counsel of any of the parties. Pollard's Lessee v. Hagan, 3 How. 212; Weber v. Commissioners, 18 Wall. 57. The same doctrine is in this country held to be applicable to lands covered by fresh water in the Great Lakes, over which is conducted an extended commerce with different states and foreign nations. These laker possess all the general characteristics of open seas, except in the freshness of their waters, and in the absence of the ebb and flow of the tide. In other respects they are inland seas, and there is no reason or principle for the assertion of dominion and sovereignty over and ownership by the state of lands covered by tide waters that is not equally applicable to its ownership of and dominion and sovereignty over lands covered by the fresh waters of these lakes. At one time the existence of tide waters was deemed essential in determining the admiralty jurisdiction of courts in England. That doctrine is now repudiated in this country as wholly inapplicable to our condition. In England the ebb and flow of the tide constitute the legal test of the navigability of waters. There no waters are navigable in fact, at least to any great extent, which are not subject to the tide. There, as said in the case of The Genesee Chief, 12 How. 443, 455, tide water,' and navigable water are 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

26 Tab 4 13 S.Ct. 110 Page U.S. 387, 13 S.Ct. 110, 36 L.Ed (Cite as: 146 U.S. 387, 13 S.Ct. 110) synonymous terms, and tide water, with a few small and unimportant exceptions, meant nothing more than public rivers, as contradistinguished from private ones;' and writers on the subject of admiralty jurisdiction took the ebb and flow of the tide as the test, because it was a convenient one, and more easily determined *436 the character of the river. Hence the establishes doctrine in England, that the admiralty jurisdiction is confined to the ebb and flow of the tide. In other words, it is confined to public navigable waters. But in this country the case is different. Some of our rivers are navigable for great distances above the flow of the tide,-indeed, for hundreds of miles,-by the largest vessels used in commerce. As said in the case cited: There is certainly nothing in the ebb and flow of the tide that makes the waters peculiarly suitable for admiralty jurisdiction, **112 nor anything in the absence of a tide that renders it unfit. If it is a public, navigable water, on which commerce is carried on between different states or nations, the reason for the jurisdiction is precisely the same, and, if a distinction is made on that account, it is merely arbitrary, without any foundation in reason, and, indeed, would seem to be inconsistent with it. The Great Lakes are not in any appreciable respect affected by the tide, and yet on their waters, as said above, a large commerce is carried on, exceeding in many instances the entire commerce of states on th borders of the sea. When the reason of the limitation of admiralty jurisdiction in England was found inapplicable to the condition of navigable waters in this country, the limitation and all its incidents were discarded. So also, by the common law, the doctrine of the dominion over and ownership by the crown of lands within the realm under tide waters is not founded upon the existence of the tide over the lands, but upon the fact that the waters are navigable; tide waters' and navigable waters, as already said, being used as synonymous terms in England. The public being interested in the use of such waters, the possession by private individuals of lands under them could not be permitted except by license of the crown, which could alone exercise such dominion over the waters as would insure freedom in their use so far as consistent with the public interest. The doctrine is founded upon the necessity of preserving to the public the use of navigable waters from private interruption and encroachment,-a reason as applicable to navigable fresh waters as to waters moved by the tide. We hold, therefore,*437 that the same doctrine as to the dominion and sovereignty over and ownership of lands under the navigable waters of the Great Lakes applies which obtains at the common law as to the dominion and sovereignty over and ownership of lands under tide waters in the borders of the sea, and that the lands are held by the same right in the one case as in the other, and subject to the same trusts and limitations. Upon that theory we shall examine how far such dominion, sovereignty, and proprietary right have been encroached upon by the railroad company, and how far that company had at the time the assent of the state to such encroachment, and also the validity of the claim which the company asserts, of a right to make further encroachments thereon by virtue of a grant from the state in April, The city of Chicago is situated upon the southwestern shore of Lake Michigan, and includes, with other territory, fractional sections 10 and 15, in township 39 N., range 14 E. of the third P. M., bordering on the lake, which forms their eastern boundary. For a long time after the organization of the city, its harbor was the Chicago river, a small, narrow stream opening into the lake near the center of the east and west line of section 10; and in it the shipping arriving from other ports of the lake and navigable waters was moored or anchored, and along it were docks and wharves. The growth of the city in subsequent years, in population, business, and commerce, required a larger and more convenient harbor, and the United States, in view of such expansion and growth, commenced the construction of a system of breakwaters and other harbor protections in the waters of the lake in front of the fractional sections mentioned. In the prosecution of this work there was constructed a line of breakwaters or cribs of wood and stone covering the front of the city between the Chicago river and Twelfth street, with openings in the piers or lines of cribs for the entrance and departure of vessels; thus inclosing a large part of the lake for the uses of shipping and commerce, and creating an outer harbor for Chicago. It comprises a space about one mile and one half in length from north to south, and *438 is of a width from east to west varying from 1,000 to 4,000 feet. As commerce and shipping expand, the harbor will be further extended towards the 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

27 Tab 4 13 S.Ct. 110 Page U.S. 387, 13 S.Ct. 110, 36 L.Ed (Cite as: 146 U.S. 387, 13 S.Ct. 110) south; and, as alleged by the amended bill, it is expected that the necessities of commerce will soon require its enlargement so as to include a great part of the entire lake front of the city. It is stated, and not denied, that the authorities of the United States have in a general way indicated a plan for the improvement and use of the harbor which had been inclosed as mentioned, by which a portion is devoted as a harbor of refuge, where ships may ride at anchor with security and within protecting walls, and another portion of such inclosure, nearer the shore of the lake, may be devoted to wharves and piers, alongside of which ships may load and unload, and upon which warehouses may be constructed and other structures erected for the convenience of lake commerce. The case proceeds upon the theory and allegation that the defendant the Illinois Central Railroad Company has, without lawful authority, encroached, and continues to encroach, upon the domain of the state, and its original ownership and control of the waters of the harbor and of the lands thereunder, upon a claim of rights acquired under a grant from the state and ordinace of the city to enter the city and appropriate land and water 200 feet wide, in order to construct a track for a railway and to erect thereon warehouses, piers, and other structures in front of the city, and upon a claim of riparian rights acquired by virtue of ownership of lands originally bordering on the lake in front of the city. It also proceeds against the claim asserted by the railroad company, of a grant by the state in 1869 of its right and title to the submerged lands constituting the bed of Lake Michigan, lying east of the tracks and breakwater of the company for the distance of one mile, and between the south line of the south pier extended eastwardly and a line extended in the same direction **113 from the south line of lot 21 south of and near the machine shops and roundhouse of the company, and of a right thereby to construct at its pleasure, in the hardor wharves, piers, and other works for its use. *439 The state prays a decree establishing and confirming its title to the bed of Lake Michigan, and exclusive right to develop and improve the harbor of Chicago by the construction of docks, wharves, piers, and other improvements, against the claim of the railroad company that it has an absolute title to such submerged lands by the act of 1869, and the right, subject only to the paramount authority of the United States in the regulation of commerce, to fill all the bed of the lake within the limits above stated, for the purpose of its business, and the right, by the construction and maintenance of wharves, docks and piers, to improve the shore of the lake for the promotion generally of commerce and navigation. And the state, insisting that the company has, without right, erected, and proposes to continue to erect, wharves and piers upon its domain, asks that such alleged unlawful structures may be ordered to be removed, and the company be enjoined from erecting further structures of any kind. And first as to lands in the harbor of Chicago possessed and used by the railroad company under the act of congress of September 20, 1850, (9 St. p. 466, c. 61,) and the ordinance of the city of June 14, By that act congress granted to the state of Illinois a right of way, not exceeding 100 feet in width, on each side of its length, through the public lands, for the construction of a railroad from the southern terminus of the Illinois & Michigan Canal to a point at or near the junction of the Ohio and Mississippi rivers, with a branch to Chicago, and another, via the town of Galena, to a point opposite Dubuque, in the state of Lowa, with the right to take the necessary materials for its construction; and to aid in the construction of the railroad and branches, by the same act it granted to the state six alternate sections of land, designated by even numbers, on each side of the road and branches, with the usual reservation of any portion found to be sold by the United States, or to which the right of pre-emption had attached at the time the route of the road and branches was definitely fixed, in which case provision was made for the selection of equivalent lands in contiguous sections. *440 The lands granted were made subject to the disposition of the legislature of hte state; and it was declared that the railroad and its branches should be and remain a public highway for the use of the government of the United States, free from toll or other charge upon the transportation of their property or troops Thomson Reuters. No Claim to Orig. US Gov. Works.

28 Tab 4 13 S.Ct. 110 Page U.S. 387, 13 S.Ct. 110, 36 L.Ed (Cite as: 146 U.S. 387, 13 S.Ct. 110) The act was formally accepted by the legislature of the state, February 17, 1851, (Laws 1851, pp. 192, 193.) A few days before and on the 10th of that month, the Illinois Central Railroad Company was incorporated. It was invested generally with the powers, privileges, immunities, and franchises chises of corporations, and specifically with the power of acquiring by purchase or otherwise, and of holding and conveying, real and personal estate which might be needful to carry into effect, fully, the purposes of the act. It was also authorized to survey, locate, construct, and operate a railroad, with one or more tracks or lines of rails, between the points designated and the branches mentioned; and it was declared that the company should have a right of way upon, and might appropriate to its sole use and control, for the purposes contemplated, land not exceeding 200 feet in width throughout its entire length, and might enter upon and take possession of and use any lands, streams, and materials of every kind, for the location of depots and stopping stages, for the purpose of constructing bridges, dams, embankments, engine houses, shops, and other buildings necessary for completing, maintaining, and operating the road. All such lands, waters, materials, and privileges belonging to the state were granted to the corporation for that purpose; and it was provided that when owned by or belonging to any person, company, or corporation, and they could not be obtained by voluntary grant or release, the same might be taken and paid for by proceedings for condemnation, as prescribed by law. It was also enacted that nothing in the act should authorize the corporation to make a location of its road within any city without the consent of its common council. This consent was given by an ordinance of the common council of Chicago, *441 adopted June 14, By its first section it granted permission to the company to lay down, construct, and maintain within the limits of the city, and along the margin of the lake within and adjacent to the same, a railroad, with one or more tracks, and to operate the same with locomotive engines and cars, under such rules and regulations, with reference to speed of trains, the receipt, safe-keeping, and delivery of freight, and arrangements for the accommodation and conveyance of passengers, not inconsistent with the public safety, as the company might from time to time establish, and to have the right of way and all powers incident to and necessary therefor, in the manner and upon the following terms and conditions, namely: That the road should enter the city at or near the intersection of its then southern boundary with Lake Michigan, and follow the shore on or near the margin of the lake northerly to the southern bounds of the open space known as Lake Park, in front of canal section 15, and continue northerly across the open space in front of that section to such grounds as the company might acquire between the north line of Randolph street and the Chicago river, in the Ft. Dearborn addition, upon which grounds should be located the depot of the railroad company within the city, and such **114 other buildings, slips, or apparatus as might be necessary and convenient for its business. But it was suderstood that the city did not undertake to obtain for the company any right of way, or other right, privilege, or easement, not then in its power to grant, or to assume any liability or responsibility for the acts of the company. It also declared tht the company might enter upon and use in perpetuity for its line of road, and other works necessary to protect the same from the lake, a width of 300 feet from the southern boundary of the public ground near Twelfth street, to the northern line of Randolph street; the inner or west line of the ground to be not less than 400 feet east from the west line of Michigan avenue, and parallel thereto; and it was authorized to extend its works and fill out into the lake to a point in the southern pier not less than 400 feet west from the then east end of the same, thence parallel with Michigan *442 avenue to the north side of Randolph street extended; but it was stated that the common council did not grant any right or privilege beyond the limits above specified, nor beyond the line that might be actually occupied by the works of the company. By the ordinance the company was required to erect and maintain on the western or inner line of the ground pointed out for its main tracks on the lake shore such suitable walls, fences, or other sufficient works as would prevent animals from straying upon or obstructing its tracks, and secure persons and property from danger, and to construct such suitable gates at proper places at the ends of the streets, which were then or might thereafter be laid out, as required by the 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

29 Tab 4 13 S.Ct. 110 Page U.S. 387, 13 S.Ct. 110, 36 L.Ed (Cite as: 146 U.S. 387, 13 S.Ct. 110) common council, to afford safe access to the lake; and provided that, in the case of the construction of an outside harbor, streets might be laid out to approach the same in the manner provided by law. The company was also rquired to erect and complete within three years after it should have accepted the ordinance, and forever thereafter maintain, a continuous wall or structure of stone masonry, pier work, or other sufficient material, of regular and sightly appearance, and not to exceed in height the general level of Michigan avenue, opposite thereto, from the north side of Randolph street to the southern bound of Lake Park, at a distance of not more than 300 feet east from and parallel with the western or inner line of the company, and continue the works to the southern boundary of the city, at such distance outside of the track of the road as might be expedient, which structure and works should be of sufficient strength and magnitude to protect the entire front of the city, between the north line of Randolph street and its southern boundary, from further damage or injury from the action of the waters of Lake Michigan; and that that part of the structure south of Lake Park should be commenced and prosecuted with reasonable dispatch after acceptance of the ordinance. It was also enacted that the company should not in any manner, nor for any purpose whatever, occupy, use, or intrude upon the open ground known as Lake Park, belonging to the city of Chicago, lying between Michigan avenue and the western or inner line before mentioned, except so far *443 as the common council may consent, for the convenience of said company, while constructing or repairing the works in front of said ground;' and it was declared that the company should erect no buildings between the north line of Randolph street and the south side of the said Lake Park, nor occupy nor use the works proposed to be constructed between these points, except for the passage of or for making up or distributing their trains, nor place upon any part of their works between said points any obstruction to the view of the lake from the shore, nor suffer their locomotives, cars, or other articles to remain upon their tracks, but only erect such works as are proper for the construction of their necessary tracks, and protection of the same. The company was allowed 90 days to accept this ordinance, and it was provided that upon such acceptance a contract embodying its provisions should be executed and delivered between the city and the company, and that the rights and privileges conferred upon the company should depend upon the performance on its part of the requirements made. The ordinance was accepted and the required agreement drawn and executed on the 28th of March, Under the authority of this ordinance the railroad company located its tracks within the corporate limits of the city. Those running northward from Twelfth street were laid upon pilling in the waters of the lake. The shore line of the lake was at that time at Park Row, about 400 feet from the west line of Michigan avenue, and at Randolph street, about 112 1/2 feet. Since then the space between the shore line and the tracks of the railroad company has been filled with earth under the direction of the city, and is now solid ground. After the tracks were constructed the company erected a break water east of its roadway upon a line parallel with the west line of Michigan avenue, and afterwards filled up the space between the breakwater and its tracks with earth and stone. We do not deem it material, for the determination of any questions presented in this case, to describe in detail the extensive works of the railroad company under the permission given *444 to locate its road within the city by the ordinance. It is sufficient to say that, when this suit was commenced, it had reclaimed from the waters of the lake a tract 200 feet in width, for the whole distance allowed for its entry within the city, and constructed thereon the tracks needed for its railway, with all the guards against danger in its approach and crossings as specified in the ordinance, and erected the designated breakwater beyond its tracks on the east, and the necessary works for the protection of the shore on **115 the west. Its works in no respect interfered with any useful freedom in the use of the waters of the lake for commerce,-foreign, interstate, or domestic. They were constructed under the authority of the law by the requirement of the city, as a condition of its consent that the company might locate its road within its limits, and cannot be regarded as such an encroachment upon the domain of the state as to require the interposition of the court for their removal or for 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

30 Tab 4 13 S.Ct. 110 Page U.S. 387, 13 S.Ct. 110, 36 L.Ed (Cite as: 146 U.S. 387, 13 S.Ct. 110) any restraint in their use. The railroad company never acquired by the reclamation from the waters of the lake of the land upon which its tracks are laid, or by the construction of the road and works connected therewith, an absolute fee in the tract reclaimed, with a consequent right to dispose of the same to other parties, or to use it for any other purpose than the one designated,-the construction and operation of a railroad thereon, with one or more tracks and works in connection with the road or in aid thereof. The act incorporating the company only granted to it a right of way over the public lands for its use and control, for the purpose contemplated, which was to enable it to survey, locate, and construct and operate a railroad. All lands, waters, materials, and privileges belonging to the state were granted solely for that purpose. It did not contemplate, much less authorize, any diversion of the property to any other purpose. The use of it was restricted to the purpose expressed. While the grant to it included waters of streams in the line of the right of way belonging to the state, it was accompanied with a declaration that it should not be so construed as to authorize the corporation to interrupt the navigation of the streams. If the waters of the lake may be deemed to be included in the *445 designation of streams, then their use would be held equally restricted. The prohibition upon the company to make a location of its road within any city, without the consent of its common council, necessarily empowered that body to prescribe the conditions of the entry, so far at least as to designate the place where it should be made, the character of the tracks to be laid, and the protection and guards that should be constructed to insure their safety. Nor did the railroad company acquire, by the mere construction of its road and other works, any rights as a riparian owner to reclaim still further lands from the waters of the lake for its use, or the construction of piers, docks, and wharves in the furtherance of its business. The extent to which it could reclaim the land under the waters was limited by the conditions of the ordinance, which was simply for the construction of a railroad on a track not to exceed a specified width, and of works connected therewith. We shall hereafter consider what rights the company acquired as a riparian owner from its acquisition of title to lands on the shore of the lake, but at present we are speaking only of what rights it acquired from the reclamation of the tract upon which the railroad and the works in connection with its are built. The construction of a pier or the extension of any land into navigable waters for a railroad or other purposes, by one not the owner of lands on the shore, does not give the builder of such pier or extension, whether an individual or corporation, any riparian rights. Those rights are incident to riparian ownership. They exist with such ownership, and pass with the transfer of the land; and the land must not only be contiguous to the water, but in contact with it. Proximity, without contact, is insufficient. The riparian right attaches to land on the border of navigable water, without any declaration to that effect from the former owner, and its designation in a conveyance by him would be surplusage. See Gould, Waters, 148, and authorities there cited. The riparian proprietor is entitled, among other rights, as held in Yates v. Milwaukee, 10 Wall. 497, 504, to access to the navigable part of the water on the front of which lies his land, and for that purpose to make a landing, wharf, or pier for his *446 own use or for the use of the public, subject to such general rules and regulations as the legislature may prescribe for the protection of the rights of the public. In the case cited the court held that this riparian right was property, and valuable, and, though it must be enjoyed in due subjection to the rights of the public, it could not be arbitrarily or capriciously impaired. It had been held in the previous case of Dutton v. Strong, 1 Black, 23, 33, that, whenever the water of the shore was too shoal to be navigable, there was the same necessity for wharves, piers, and landing places as in the bays and arms of the sea; that, where that necessity existed, it was difficult to see any reason for denying to the adjacent owner the right to supply it; but that the right must be understood as terminating at the point of navigability, where the necessity for such erections ordinarily ceased. In this case it appears that fractional section 10, which was included within the city limits bordering on the lake front, was, many years before this suit was brought, divided, under the authority of the United States, into blocks and lots, and the lots sold. The proceedings taken and the laws passed on the subject for the sale of the lots are stated with great 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

31 Tab 4 13 S.Ct. 110 Page U.S. 387, 13 S.Ct. 110, 36 L.Ed (Cite as: 146 U.S. 387, 13 S.Ct. 110) particularity in the opinion of the court below, but for our purpose it is sufficient to mention that the lots laid out in fractional section 10 belonging to the United States were sold, and, either directly or from purchasers, the title to some of them fronting on the lake north of Randolph street became vested in the railroad company, and the company, finding the lake in front of those lots shallow, filled it in, and upon the reclaimed land constructed slips, wharves, and piers, the last three piers in , 1880, and 1881, which it claims to own and to have the right to use in its business. According to the law of riparian ownership **116 which we have stated, this claim is well founded, so far as the piers do not extend beyond the point of navigability in the waters of the lake. We are not fully satisfied that such is the case, from the evidence which the company has produced, and the fact is not conceded. Nor does the court below find that such navigable point had been established by any public authority *447 or judicial decision, or that it had any foundation, other than the judgment of the railroad company. The same position may be taken as to the claim of the company to the pier and docks erected in front of Michigan avenue between the lines of Twelfth and Sixteenth streets extended. The company had previously acquired the title to certain lots fronting on the lake at that point, and, upon its claim of riparian rights from that ownership, had erected the structures in question. Its ownership of then likewise depends upon the question whether they are extended beyond or are limited to the navigable point of the waters of the lake, of which no satisfactory evidence was offered. Upon the land reclaimed by the railroad company as riparian proprietor in front of lots into which section 10 was divided, which it had purchased, its passenger depot was erected north of Randolph street; and to facilitate its approach the common council, by ordinance adopted September 10, 1855, authorized it to curve its tracks westwardly of the line fixed by the ordinance of 1852, so as to cross that line at a point not more than 200 feet south of Randolph street, in accordance with a specified plan. This permission was given upon the condition that the company should lay out upon its own land, west of and alongside its passenger house, a street 50 feet wide, extending from Water street to Randolph street, and fill the same up its entire length, within two years from the passage of the ordinance. The company's tracks were curved as permitted, the street referred to was opened, the required filling was done, and the street has ever since been used by the public. It being necessary that the railroad company should have additional means of approaching and using its station grounds between Randolph street and the Chicago river, the city, by another ordinance, adopted September 15, 1856, granted it permission to enter and use, in perpetuity, for its line of railroad and other works necessary to protect the same from the lake, the space between its then breakwater and a line drawn from a point thereon 700 feet south of the north line of Randolph street extended, and running thence on a straight line to the southeast corner of *448 its present breakwater, thence to the river, and the space thus indicated the railroad company occupied and continued to hold pursuant to this ordinance; and we do not perceive any valid objection to its continued holding of the same for the purposes declared,-that is, as additional means of approaching and using its station grounds. We proceed to consider the claim of the railroad company to the ownership of submerged lands in the harbor, and the right to construct such wharves, piers, docks, and other works therein as it maky deem proper for its interest and business. The claim is founded upon the third section of the act of the legislature of the state passed on the 16th of April, 1869, the material part of which is as follows: Sec. 3. The right of the Illinois Central Railroad Company under the grant from the state in its charter, which said grant constitutes a part of the consideration for which the said company pays to the state at least seven per cent. of its gross earnings, and under and by virtue of its appropriation, occupancy, use, and control, and the riparian ownership incident to such grant, appropriation, occupancy, use, and control, in and to the lands submerged or otherwise lying east of the said line running parallel with and 400 feet east of the west line of Michigan avenue, in fractional sections ten and fifteen, township and range as aforesaid, is hereby confirmed; and all the right and title of the state of Illinois in and to 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

32 Tab 4 13 S.Ct. 110 Page U.S. 387, 13 S.Ct. 110, 36 L.Ed (Cite as: 146 U.S. 387, 13 S.Ct. 110) the submerged lands constituting the bed of Lake Michigan, and lying east of the tracks and breakwater of the Illinois Central Railroad Company, for a distance of one mile, and between the south line of the south pier extended eastwardly and a line extended eastward from the south line of lot twenty-one, south of and near to the roundhouse and machine shops of said company, in the south division of the said city of Chicago, are hereby granted in fee to the said Illinois Central Railroad Company, its successors and assigns: provided, however, that the fee to said lands shall be held by said company in perpetuity, and that the said company shall not have power to grant, sell, or convey the fee to the same, and that all gross receipts from use, profits, leases, or otherwise, of said lands, or the improvements *449 thereon, or that may hereafter be made thereon, shall form a part of the gross proceeds, receipts, and income of the said Illinois Central Railroad Company, upon which said company shall forever pay into the state treasury, semiannually, the per centum provided for in its charter, in accordance with the requirements of said charter: and provided, also, that nothing herein contained shall authorize obstructions to the Chicago harbor, or impair the public right of navigation, nor shall this act be construed to exempt the Illinois Central Railroad Company, its lessees or assigns, from any act of the general assembly which may be hereafter passed, regulating the rates of wharfage and dockage to be charged in said harbor. The act of which this section is a part was accepted by a resolution of the board of directors of the company at its office in the city of New York, July 6, 1870, but the acceptance was not communicated to the state until the 18th of November, A copy of the resolution was on that day forwarded to the secretary of state, and filed and recorded **117 by him in the records of his office. On the 15th of April, 1873, the legislature of Illinois repealed the act. The questions presented relate to the validity of the section cited, of the act, and the effect of the repeal upon its operation. The section in question has two objects in view: One was to confirm certain alleged rights of the railroad company under the grant from the state in its charter and under and by virtue of its appropriation, occupancy, use, and control, and the riparian ownership incident thereto, in and to the lands submerged or otherwise lying east of a line parallel with and 400 feet east of the west line of Michigan avenue, in fractional sections 10 and 15. The other object was to grant to the railroad company submerged lands in the harbor. The confirmation made, whatever the operation claimed for it in other respects, cannot be invoked so as to extend the riparian right which the company possessed from its ownership of lands in sections 10 and 15 on the shore of the lake. Whether the piers or docks constructed by it after the passage of the act of 1869 extend beyond the point of navigability in the waters of the lake must be the subject of judicial *450 inquiry upon the execution of this decree in the court below. If it be ascertained upon such inquiry and determined that such piers and docks do not extend beyond the point of practicable navigability, the claim of the railroad company to their title and possession will be confirmed; but if they or either of them are found, on such inquiry, to extend beyond the point of such navigability, then the state will be entitled to a decree that they, or the one thus extended, be abated and removed to the extent shown, or for such other disposition of the extension as, upon the application of the state and the facts established, may be authorized by law. As to the grant of the submerged lands, the act declares that all the right and title of the state in and to the submergel lands, constituting the bed of Lake Michigan, and lying east of the tracks and breakwater of the company for the distance of one mile, and between the south line of the south pier extended eastwardly and a line extended eastwardly from the south line of lot 21, south of and near to the roundhouse and machine shops of the company, are granted in fee to the railroad company, its successors and assigns. The grant is accompanied with a proviso that the fee of the lands shall be held by the company in perpetuity, and that it shall not have the power to grant, sell, or convey the fee thereof. It also declares that nothing therein shall authorize obstructions to the harbor, or impair the public right of navigation, or be construed to exempt the company from any act regulating the rates of wharfage and dockage to be charged in the harbor. This clause is treated by the counsel of the company as an absolute conveyance to it of title to the submerged lands, 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

33 Tab 4 13 S.Ct. 110 Page U.S. 387, 13 S.Ct. 110, 36 L.Ed (Cite as: 146 U.S. 387, 13 S.Ct. 110) giving it as full and complete power to use and dispose of the same, except in the technical transfer of the fee, in any manner it may choose, as if they were uplands, in no respect covered or affected by navigable waters, and not as a license to use the lands subject to revocation by the state. Treating it as such a conveyance, its validity must be determined by the consideration whether the legislature was competent to make a grant of the kind. The act, if valid and operative to the extent claimed, placed *451 under the control of the railroad company nearly the whole of the submerged lands of the harbor, subject only to the limitations that it should not authorize obstructions to the harbor, or impair the public right of navigation, or exclude the legislature from regulating the rates of wharfage or dockage to be charged. With these limitations, the act put it in the power of the company to delay indefinitely the improvement of the harbor, or to construct as many docks, piers, and wharves and other works as it might choose, and at such positions in the harbor as might suit its purposes, and permit any kind of business to be conducted thereon, and to lease them out on its own terms for indefinite periods. The inhibition against the technical transfer of the fee of any portion of the submerged lands was of little consequence when it could make a lease for any period, and renew it at its pleasure; and the inhibitions against authorizing obstructions to the harbor and impairing the public right of navigation placed no impediments upon the action of the railroad company which did not previously exist. A corporation created for one purpose, the construction and operation of a railroad between designated points, is by the act converted into a corporation to manage and practically control the harbor of Chicago, not simply for its own purpose as a railroad corporation, but for its own profit generally. The circumstances attending the passage of the act through the legislature were on the hearing the subject of much criticism. As originally introduced, the purpose of the act was to enable the city of Chicago to enlarge its harbor, and to grant to it the title and interest of the state to certain lands adjacent to the shore of Lake Michigan, on the eastern front of the city, and place the harbor under its control; giving it all the necessary powers for its wise management. But during the passage of the act its purport was changed. Instead of providing for the cession of the submerged lands to the city, it provided for a cession of them to the railroad company. It was urged that the title of the act was not changed to correspond with its changed purpose, and an objection was taken to its validity on that account. But the majority of the court were of opinion that the evidence was insufficient to show that *452 the requirement of the constitution of the state, in its passage, was not complied with. **118 The question, therefore, to be considered, is whether the legislature was competent to thus deprive the state of its ownership of the submerged lands in the harbor of Chicago, and of the consequent control of its waters; or, in other words, whether the railroad corporation can hold the lands and control the waters by the grant, against any future exercise of power over them by the state. That the state holds the title to the lands under the navigable waters of Lake Michigan, within its limits, in the same manner that the state holds title to soils under tide water, by the common law, we have already shown; and that title necessarily carries with it control over the waters above them, whenever the lands are subjected to use. But it is a title different in character from that which the state holds in lands intended for sale. It is different from the title which the United States hold in the public lands which are open to pre-emption and sale. It is a title held in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein, freed from the obstruction or interference of private parties. The interest of the people in the navigation of the waters and in commerce over them may be improved in many instances by the erection of wharves, docks, and piers therein, for which purpose the state may grant parcels of the submerged lands; and, so long as their disposition is made for such purpose, no valid objections can be made to the grants. It is grants of parcels of lands under navigable waters that may afford foundation for wharves, piers, docks, and other structures in aid of commerce, and grants of parcels which, being occupied, do not substantially impair the public interest in the lands and waters remaining, that are chiefly 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

34 Tab 4 13 S.Ct. 110 Page U.S. 387, 13 S.Ct. 110, 36 L.Ed (Cite as: 146 U.S. 387, 13 S.Ct. 110) considered and sustained in the adjudged cases as a valid exercise of legislative power consistently with the trust to the public upon which such lands are held by the state. But that is a very different doctrine from the one which would sanction the abdication of the general control of the state over lands under the *453 navigable waters of an entire harbor or bay, or of a sea or lake. Such abdication is not consistent with the exercise of that trust which requires the government of the state to preserve such waters for the use of the public. The trust devolving upon the state for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. The control of the state for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining. It is only by observing the distinction between a grant of such parcels for the improvement of the public interest, or which when occupied do not substantially impair the public interest in the lands and waters remaining, and a grant of the whole property in which the public is interested, that the language of the adjudged cases can be reconciled. General language sometimes found in opinions of the courts, expressive of absolute ownership and control by the state of lands under navigable waters, irrespective of any trust as to their use and disposition, must be read and construed with reference to the special facts of the particular cases. A grant of all the lands under the navigable waters of a state has never been adjudged to be within the legislative power; and any attempted grant of the kind would be held, if not absolutely void on its face, as subject to revocation. The state can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties, except in the instance of parcels mentioned for the improvement of the navigation and use of the waters, or when parcels can be disposed of without impairment of the public interest in what remains, than it can abdicate its police powers in the administration of government and the preservation of the peace. In the administration of government the use of such powers may for a limited period be delegated to a municipality or other body, but there always remains with the state the right to *454 revoke those powers and exercise them in a more direct manner, and one more conformable to its wishes. So with trusts connected with public property, or property of a special character, like lands under navigable waters; they cannot be placed entirely beyond the direction and control of the state. The harbor of Chicago is of immense value to the people of the state of Illinois, in the facilities it affords to its vast and constantly increasing commerce; and the idea that its legislature can deprive the state of control over its bed and waters, and place the same in the hands of a private corporation, created for a different purpose,-one limited to transportation of passengers and freight between distant points and the city,-is a proposition that cannot be defended. The area of the submerged lands proposed to be ceded by the act in question to the railroad company embraces something more than 1,000 acres, being, as stated by counsel, more than three times the area of the outer harbor, and not only including all of that harbor, but embracing adjoining submerged lands, which will, in all probability, be hereafter included in the harbor. It is as large as that embraced by all the merchandise docks along the Thames at London; is much larger than that included in the famous docks and basins at Liverpool; is twice that of the port of Marseilles, and nearly, if not quite, equal to the pier area along the water front of the city of New York. And the arrivals and clearings of vessels at the port exceed in number those of New York, and are **119 equal to those of New York and Boston combined. Chicago has nearly 25 per cent. of the lake carrying trade, as compared with the arrivals and clearings of all the leading ports of our great inland seas. In the year ending June 30, 1886, the joint arrivals and clearances of vessels at that port amounted to 22,096, with a tonnage of over 7,000,000; and in 1890 the tonnage of the vessels reached nearly 9,000,000. As stated by counsel, since the passage of the lake front act, in 1869, the population of the city has increased nearly 1,000,000 souls, and the increase of commerce has kept pace with it. It is hardly conceivable that the legislature can divest the state of the control *455 and management of this harbor, and vest it absolutely in a private corporation. Surely an act of the legislature transferring the title to its submerged lands and the power claimed by the railroad company to a foreign state or nation would be repudiated, without hesitation, as a gross perversion of the trust over the property under 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

35 Tab 4 13 S.Ct. 110 Page U.S. 387, 13 S.Ct. 110, 36 L.Ed (Cite as: 146 U.S. 387, 13 S.Ct. 110) which it is held. So would a similar transfer to a corporation of another state. It would not be listened to that the control and management of the harbor of that great city-a subject of concern to the whole people of the state-should thus be placed elsewhere than in the state itself. All the objections which can be urged to such attempted transfer may be urged to a transfer to a private corporation like the railroad company in this case. Any grant of the kind is necessarily revocable, and the exercise of the trust by which the property was held by the state can be resumed at any time. Undoubtedly there may be expenses incurred in improvements made under such a grant, which the state ought to pay; but, be that as it may, the power to resume the trust whenever the state judges best is, we think, incontrovertible. The position advanced by the railroad company in support of its claim to the ownership of the submerged lands, and the right to the erection of wharves, piers, and docks at its pleasure, or for its business in the harbor of Chicago, would place every harbor in the country at the mercy of a majority of the legislature of the state in which the harbor is situated. We cannot, it is true, cite any authority where a grant of this kind has been held invalid, for we believe that no instance exists where the harbor of a great city and its commerce have been allowed to pass into the control of any private corporation. But the decisions are numerous which declare that such property is held by the stae, by virtue of its sovereignty, in trust for the public. The ownership of the navigable waters of the harbor, and of the lands under them, is a subject of public concern to the whole people of the state. The trust with which they are held, therefore, is governmental, and cannot be alienated, except in those instances mentioned, of parcels used in the improvement of the interest thus held, or when parcels *456 can be disposed of without detriment to the public interest in the lands and waters remaining, This follows necessarily from the public character of the property, being held by the whole people for purposes in which the whole people are interested. As said by Chief Justice Taney in Martin v. Waddell, 16 Pet. 367, 410: When the Revolution took place the people of each state became themselves sovereign, and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution to the general government. In Arnold v. Mundy, 6 N. J. Law, 1, which is cited by this court in Martin v. Waddell, 16 Pet. 418, and spoken of by Chief Justice Taney as entitled to great weight, and in which the decision was made with great deliberation and research, the supreme court of New Jersey comments upon the rights of the state in the bed of navigable waters, and, after observing that the power exercised by the state over the lands and waters is nothing more than what is called the jus regium, the right of regulating, improving, and securing them for the benefit of every individual citizen, adds: The sovereign power itself, therefore, cannot, consistently with the principles of the law of nature and the constitution of a well-ordered society, make a direct and absolute grant of the waters of the state, divesting all the citizens of their common right. It would be a grievance which never could be long borne by a free people. Necessarily must the control of the waters of a state over all lands under them pass when the lands are conveyed in fee to private parties, and are by them subjected to use. In the case of Stockton v. Railroad Co., 32 Fed. Rep. 9, which involved a consideration by Mr. Justice Bradley, late of this court, of the nature of the ownership by the state of lands under the navigable waters of the United States, he said: It is insisted that the property of the state in lands under its navigable waters is private property, and comes strictly within the constitutional provision. It is significantly asked, *457 can the United States take the state house at Trenton, and the surrounding grounds belonging to the state, and appropriate them to the purposes of a railroad depot, or to any other of the general government, without compensation? We do not apprehend that the decision of the present case involves or requires a serious answer to this question. The cases are clearly not parallel. The character of the title or ownership by which the state holds the state house is quite different from that by which it holds the land under the 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

36 Tab 4 13 S.Ct. 110 Page U.S. 387, 13 S.Ct. 110, 36 L.Ed (Cite as: 146 U.S. 387, 13 S.Ct. 110) navigable waters in and around its territory. The information rightly states that prior to the Revolution the shore and lands under water of the navigable **120 streams and waters of the province of New Jersey belonged to the king of Great Britain, as part of the jura regalia of the crown, and devolved to the state by right of conquest. The information does not state, however, what is equally true, that after the conquest the said lands were held by the state, as they were by the king, in trust for the public uses of navigation and fishery, and the erection thereon of wharves, piers, light-houses, beacons, and other facilities of navigation and commerce. Being subject to this trust, they were publici juris; in other words, they were held for the use of the people at large. It is true that to utilize the fisheries, especially those of shell fish, it was necessary to parcel them out to particular operators, and employ the rent or consideration for the benefit of the whole people; but this did not alter the character of the title. The land remained subject to all other public uses as before, especially to those of navigation and commerce, which are always paramount to those of public fisheries. It is also true that portions of the submerged shoals and flats, which really interfered with navigation, and could better subserve the purposes of commerce by being filled up and reclaimed, were disposed of to individuals for that purpose. But neither did these dispositions of useless parts affect the character of the title to the remainder. Many other cases might be cited where it has been decided that the bed or soil of navigable waters is held by the people of the state in their character as sovereign in trust for public *458 uses for which they are adapted. Martin v. Waddell, 16 Pet. 367, 410; Pollard's Lessee v. Hagan, 3 How. 212, 220; McCready v. Virginia, 94 U. S. 391, 394. In People v. Ferry Co., 68 N. Y. 71, 76, the court of appeals of New York said: The title to lands under tide waters, within the realm of England, were by the common law deemed to be vested in the king as a public trust, to subserve and protect the public right to use them as common highways for commerce, trade, and intercourse. The king, by virtue of his proprietary interest, could grant the soil so that it should become private property, but his grant was subject to the paramount right of public use of navigable waters, which he could neither destroy nor abridge. In every such grant there was an implied reservation of the public right, and so far as it assumed to interfere with it, or to confer a right to impede or obstruct navigation, or to make an exclusive appropriation of the use of navigable waters, the grant was void. In his treatise De Jure Maris (page 22) Lord Hale says: The jus privatum that is acquired by the subject, either by patent or prescription, must not prejudice the jus publicum, wherewith public rivers and the arms of the sea are affected to public use. And Mr. Justice Best, in Blundell v. Catterall, 5 Barn. & Ald. 268, in speaking of the subject, says: The soil can only be transferred subject to the public trust, and general usage shows that the public right has been excepted out of the grant of the soil. * * * The principle of the common law to which we have adverted is founded upon the most obvious principles of public policy. The sea and navigable rivers are natural highways, and any obstruction to the common right, or exclusive appropriation of their use, is injurious to commerce, and, if permitted at the will of the sovereign, would be very likely to end in materially crippling, if not detroying, it. The laws of most nations have sedulously guarded the public use of navigable waters within their limits against infringement, subjecting it only to such regulation by the state, in the interest of the public, as is deemed consistent with the preservation of the public right. *459 While the opinion of the New York court contains some expressions which may required explanation when detached from the particular facts of that case, the general observations we cite are just and pertinent. The soil under navigable waters being held by the people of the state in trust for the common use and as a portion of their inherent sovereignty, any act of legislation concerning their use affects the public welfare. It is therefore appropriately within the exercise of the police power of the state Thomson Reuters. No Claim to Orig. US Gov. Works.

37 Tab 4 13 S.Ct. 110 Page U.S. 387, 13 S.Ct. 110, 36 L.Ed (Cite as: 146 U.S. 387, 13 S.Ct. 110) In Newton v. Commissioners, 100 U. S. 548, it appeared that by an act passed by the legislature of Ohio in 1846 it was provided that upon the fulfillment of certain conditions by the proprietors or citizens of the town of Canfield the county seat should be permanently established in that town. Those conditions having been complied with, the county seat was established therein accordingly. In 1874 the legislature passed an act for the removal of the county seat to another town. Certain citizens of Canfield thereupon filed their bill setting forth the act of 1846, and claiming that the proceedings constituted an executed contract, and prayed for an injunction against the contemplated removal. But the court refused the injunction, holding that there could be no contract and no irrepealable law upon governmental subjects, observing that legislative acts concerning public interests are necessarily public laws; that every succeeding legislature possesses the same jurisdiction and power as its predecessor; that the latter have the same power of repeal and modification which the former had of enactment,-neither more nor less; that all occupy in this respect a footing of perfect equality; that this is necessarily so, in the nature of things; that it is vital to the public welfare that each one should be able at all times to do whatever the varying circumstances and present exigencies attending the subject may require; and that a different result would be fraught with evil. As counsel observe, if this is true doctrine **121 as to the location of a county seat, it is apparent that it must apply with greater force to the control of the soils and beds of navigable waters in the great public harbors held by the people in trust for *460 their common use and of common right, as an incident to their sovereignty. The legislature could not give away nor sell the discretion of its successors in respect to matters, the government of which, from the very nature of things, must vary with varying circumstances. The legislation which may be needed one day for the harbor may be different from the legislation that may be required at another day Every legislature must, at the time of its existence, exercise the power of the state in the execution of the trust devolved upon it. We hold, therefore, that any attempted cession of the ownership and control of the state in and over the submerged lands in Lake Michigan, by the act of April 16, 1869, was inoperative to affect, modify, or in any respect to control the sovereignty and dominion of the state over the lands, or its ownership thereof, and that any such attempted operation of the act was annulled by the repealing act of April 15, 1873, which to that extent was valid and effective. There can be no irrepealable contract in a conveyance of property by a grantor in disregard of a public trust, under which he was bound to hold and manage it. The legislation of the state in the lake front act, purporting to grant the fee of the submerged lands mentioned to the railroad company, was considered by the court below, in view of the preceding measures taken for the improvement of the harbor, and because further improvement in the same direction was contemplated, as a mere license to the company to prosecute such further improvement as an agency of the state, and that to this end the state has placed certain of its resources at the command of the company, with such an enlargement of its powers and privileges as enabled it to accomplish the objects in view; and the court below, after observing that the act might be assumed as investing the railroad company with the power, not given in its original charter, of erecting and maintaining wharves docks, and piers in the interest of commerce, and beyond the necessities or legitimate purposes of its own business as a railroad corporation, added that it was unable to perceive why it was not competent for the state, by subsequent legislation, to repeal the act and withdraw the additional powers of the company, thereby restricting it to the *461 business for which it was incorporated, and to resume control of the resources and property which it had placed at the command of the company for the improvement of the harbor. The court, treating the act as a license to the company, also observed that it was deemed best, when that act was passed, for the public interest, that the improvement of the harbor should be effected by the instrumentality of a railroad corporation interested to some extent in the accomplishment of that result, and said: But if the state subsequently determined, upon consideration of public policy, that this great work should not be intrusted to any railroad corporation, and that a corporation should not be the owner of even a qualified fee in the soil under the navigable waters of the harbor, no provision of the national or state constitution forbade the general assembly 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

38 Tab 4 13 S.Ct. 110 Page U.S. 387, 13 S.Ct. 110, 36 L.Ed (Cite as: 146 U.S. 387, 13 S.Ct. 110) of Illinois from giving effect by legislation to this change of policy. It cannot be claimed that the repeal of the act of 1869 took from the company a single right conferred upon it by its original charter. That act only granted additional powers and privileges, for which the railroad company paid nothing, although, in consideration of the grant of such additional powers and privileges, it agreed to pay a certain per centum of the gross proceeds, receipts, and incomes which it might derive either from the lands granted by the act, or from any improvements erected thereon. But it was not absolutely bound, by anything contained in the act, to make use of the submerged lands for the purposes contemplated by the legislature,-certainly not within any given time,-and could not have been called upon to pay such per centum until after the lands were used and improved, and income derived therefrom. The repeal of the act relieved the corporation from any obligation to pay the per centum referred to, because it had the effect to take from it the property from which alone the contemplated income could be derived. So that the effect of the act of 1873 was only to remit the railroad company to the exercise of the powers, privileges, and franchises granted in its original charter, and withdraw from it the additional powers given by the act of 1869 for the accomplishment of certain public objects. If the act in question *462 be treated as a mere license to the company to make the improvement in the harbor contemplated as an agency of the state, then we think the right to cancel the agency and revoke its power is unquestionable. It remains to consider the claim of the city of Chicago to portions of the east water front, and how such claim, and the rights attached to it, are interfered with by the railroad company. The claim of the city is to the ownership in fee of the streets, alleys, ways, commons, and other public grounds on the east front of the city boidering on the lake, as exhibited on the maps showing the subdivision of fractional sections 10 and 15, prepared under the supervision and direction of United States officers in the one case, and by the canal commissioners in the other, and duly recorded, and the riparian rights attached to such ownership. By a statute of Illinois the making, acknowledging, and recording of the plats operated to vest the title to the streets, alleys, ways, and commons, and other public grounds designated on such plats, in the city, in trust for the public uses to which they were applicable. **122 Trustees v. Havens, 11 Ill. 556; Chicago v. Rumsey, 87 Ill Such property, besides other parcels, included the whole of that portion of fractional section 15 which constitutes Michigan avenue, and that part of the fractional section lying east of the west line of Michigan avenue, and that portion of fractional section 10 designated on one of the plats as Public Ground, which was always to remain open and free from any buildings. The estate, real and personal, held by the trustees of the town of Chicago, was vested in the city of Chicago by the act of March 4, It followed that when the lake front act of 1869 was passed the fee was in the city, subject to the public uses designated, of all the portions of sections 10 and 15 particularly described in the decree below. And we agree with the court below that the fee of the made or reclaimed ground between Randolph street and Park row, embracking the ground upon which rest the tracks and the *463 break water of the railroad company south of Randolph street, was in the city. The fact that the land which the city had a right to fill in and appropriate by virtue of its ownership of the grounds in front of the lake had been filled in by the railroad company in the construction of the tracks for its railroad and for the break water on the shore west of it did not deprive the city of its riparian rights. The exercise of those rights was only subject to the condition of the agreement with the city under which the tracks and breakwater were constructed by the railroad company, and that was for a perpetual right of way over the ground for its tracks of railway, and, necessarily, the continuance of the break water as a protection of its works and the shore from the violence of the lake. With this reservation of the right of the railroad company to its use of the tracts of ground reclaimed by it and the continuance of the break water, the city possesses the same right of riparian ownership, and is at full liberty to exercise it, which it ever did Thomson Reuters. No Claim to Orig. US Gov. Works.

39 Tab 4 13 S.Ct. 110 Page U.S. 387, 13 S.Ct. 110, 36 L.Ed (Cite as: 146 U.S. 387, 13 S.Ct. 110) We also agree with the court below that the city of Chicago, as riparian owner of the grounds on its east or lake front of the city, between the north line of Randolph street and the north line of block 23, each of the lines being produced to Lake Michigan, and in virtue of authority conferred by its charter, has the power to construct and keep in repair on the lake front, east of said premises, within the lines mentioned, public landing places, wharves, docks, and levees, subject, however, in the execution of that power, to the authority of the state to prescribe the lines beyond which piers, docks, wharves, and other strcutures, other than those erected by the general government, may not be extended into the navigable waters of the harbor, and to such supervision and control as the United States may rightfully exercise. It follows from the views expressed, and it is so declared and adjudged, that the state of Illinois is the owner in fee of the submerged lands constituting the ded of Lake Michigan, which the third section of the act of April 16, 1869, purported to grant to the Illinois Central Railroad Company, and that the act of April 15, 1873, repealing the same, is valid and effective *464 for the purpose of restoring to the state the same control, dominion, and ownership of said lands that it had prior to the passage of the act of April 16, But the decree below, as it respects the pier commenced in 1872, and the piers completed in 1880 and 1881, marked 1, 2, and 3, near Chicago river, and the pier and docks between and in front of Twelfth and Sixteenth streets, is modified so as to direct the court below to order such investigation to be made as may enable it to determine whether those piers erected by the company, by virtue of its riparian proprietorship of lots formerly constituting part of section 10, extend into the lake beyond the point of practical navigability, having reference to the manner in which commerce in vessels is conducted on the lake, and if it be determined upon such investigation that said piers, or any of them, do not extend beyond such point, then that the title and possession of the railroad company to such piers shall be affirmed by the court; but if it be ascertained and determined that such piers, or any of them, do extend beyond such navigable point, then the said court shall direct the said pier or piers, to the excess ascertained, to be abated and removed, or that other proceedings relating thereto be taken on the application of the state as may be authorized by law, and also to order that similar proceedings be taken to ascertain and determine whether or not the pier and dock constructed by the railroad company in front of the shore between Twelfth and Sixteenth streets extend beyond the point of navigability, and to affirm the title and possession of the company if they do not extend beyond such point, and, if they do extend beyond such point, to order the abatement and removal of the excess, or that other proceedings relating thereto be taken on application of the state as may be authorized by law. Except as modified in the particulars mentioned, the decree in each of the three cases on appeal must be affirmed, with costs against the railroad company, and it is so ordered. The CHIEF JUSTICE, having been of counsel in the court below, and Mr. Justice BLATCHFORD, being a stockholder in the Illinois Central Railroad Company, did not take any part in the consideration or decision of these cases. Mr. Justice SHIRAS, dissenting. *465 That the ownership of a state in the lands underlying its navigable waters is as complete, and its power to make them the subject of conveyance and grant is as full, as such ownership and power to grant in the case of the other public lands of the state, I have supposed to be well settled. **123 Thus it was said in Weber v. Commissioners, 18 Wall. 57, 65, that, upon the admission of California into the Union upon equal footing with the original states, absolute property in, and dominion and sovereignty over, all soils under the tide waters within her limits, passed to the state, with the consequent right to dispose of the title to any part of said soils in such manner as she might deem proper, subject only to the paramount right of navigation over the waters, so far as such navigation might be required by the necessities of commerce with foreign nations or among the several states, the regulation of which was vested in the general government Thomson Reuters. No Claim to Orig. US Gov. Works.

40 Tab 4 13 S.Ct. 110 Page U.S. 387, 13 S.Ct. 110, 36 L.Ed (Cite as: 146 U.S. 387, 13 S.Ct. 110) In Hoboken v. Railroad Co., 124 U. S. 657, 8 Sup. Ct. Rep. 643,-a case in many respects like the present,-it was said: Lands below high-water mark on navigable waters are the absolute property of the state, subject only to the power conferred upon congress to regulate foreign commerce and commerce between the states, and they may be granted by the state, either to the riparian proprietors or to a stranger, as the state may see fit; and accordingly it was held that the grant by the state of New Jersey to the United Companies by the act of March 31, 1869, was intended to secure, and does secure, to the respective grantees, the whole beneficial interest in their respective properties, for their exclusive use for the purposes expressed in the grants. In Stevens v. Railroad Co., 34 N. J. Law, 532, it was declared by the court of errors and appeals of New Jersey that it was competent for the state to grant to a stranger lands constituting the shore of a navigable river under tide water below the tide-water mark, to be occupied and used with structures and improvements. Langdon v. Mayor, etc., 93 N. Y. 129, 155, was a case in which it was said by the court of appeals of New York: From the earliest times in England the law has vested the *466 title to, and the control over, the navigable waters therein, in the crown and parliament. A distinction was taken between the mere ownership of the soil under water and the control over it for public purposes. The ownership of the soil, analogous to the ownership of dry land, was regarded as jus privatum, and was vested in the crown. But the right to use and control both the land and water was deemed a jus publicum, and was vested in parliament. The crown could convey the soil under water so as to give private rights therein, but the dominion and control over the waters, in the interest of commerce and navigation, for the benefit of all the subjects of the kingdom, could be exercised only by parliament. In this country the state has succeeded to all the rights of both crown and parliament in the navigable waters and the soil under them, and here the jus privatum and the jus publicum are both vested in the state. These citations might be indefinitely multiplied from authorities both federal and state. The state of Illinois, by her information or bill of complaint in this case, alleges that the claims of the defendants are a great and irreparable injury to the state of Illinois as a proprietor and owner of the bed of the lake, throwing doubts and clouds upon its title thereto, and preventing an advantageous sale or other disposition thereof; and in the prayer for relief the state asks that its title may be established and confirmed; that the claims made by the railroad company may be declared to be unfounded; and that the state of Illinois may be declared to have the sole and exclusive right to develop the harbor of Chicago by the construction of docks, wharves, etc., and to dispose of such rights at its pleasure. Indeed, the logic of the state's case, as well as her pleadings, attributes to the state entire power to hold and dispose of, by grant or lease, the lands in question; and her case is put upon the alleged invalidity of the title of the railroad company, arising out of the asserted unconstitutionality of the act of 1869, which act made the grant, by reason of certain irregularities in its passage and title, or, that ground failing, upon the right of the state to arbitrarily revoke the grant, as a *467 mere license, and which right she claims to have duly exercised by the passage of the act of The opinion of the majority, if I rightly apprehend it, like wise concedes that a state does possess the power to grant the rights of property and possession in such lands to private parties, but the power is stated to be in some way restricted to small parcels, or where such parcels can be disposed of without detriment to the public interests in the lands and waters remaining. But it is difficult to see how the validity of the exercise of the power, if the power exists, can depend upon the size of the parcel granted, or how, if it be possible to imagine that the power is subject to such a limitation, the present case would be affected, as the grant in question, though doubtless a large and valuable one, is, relatively to the remaining soil and waters, if not insignificant, yet certainly, in view of the purposes to be effected, not unreasonable. It is matter of common knowledge that a great railroad system, like that of the Illinois Central Railroad Company, requires 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

41 Tab 4 13 S.Ct. 110 Page U.S. 387, 13 S.Ct. 110, 36 L.Ed (Cite as: 146 U.S. 387, 13 S.Ct. 110) an extensive and constantly increasing territory for its terminal facilities. It would seem to be plain that, if the state of Illinois has the power, by her legislature, to grant private rights and interests in parcels of soil under her navigable waters, the extent of such a grant, and its effect upon the public interests in the lands and waters remaining, are matters of legislative discretion. Assuming, then, that the state of Illinois possesses the power to confer by grant, upon the Illinois Central Railroad Company, private rights and property in the lands of the **124 state underlying the waters of the lake, we come to inquire whether she has exercised that power by a valid enactment, and, if so, whether the grant so made has been legally revoked. It was contended, on behalf of the state, that the act of 1869, purporting to confer upon the railroad company certain rights in the lands in question, did not really so operate, because the record of proceedings in the senate does not show that the bill was read three times during its passage, and because the title of the bill does not sufficiently express the purpose of the *468 bill, both of which are constitutional requisites to valid legislation. It is unnecessary to discuss these objections in this opinion, because the court below held them untenable, and because the opinion of the majority in this court adopts the reasoning and conclusion of the court below in this regard. It was further contended, on behalf of the state, that, even if the act of 1869 were a valid exercise of legislative power, yet the grant thereby made did not vest in the railroad company rights and franchises in the nature of private property, but merely conferred upon the company certain powers for public purposes, which were taken and held by the company as an agency of the state, and which accordingly could be recalled by the state whenever, in her wisdom, she deemed it for the public interest to do so, without thereby infringing a contract existing between her and the railroad company. This is a question that must be decided by the terms of the grant, read in the light of the nature of the power exercised, of the character of the railroad company as a corporation created to carry out public purposes, and of the facts and circumstances disclosed by the record. It must be conceded, in limine, that in construing this grant the state is entitled to the benefit of certain well-settled canons of construction that pertain to grants by the state to private persons or corporations, as, for instance, that, if there is any ambiguity or uncertainty in the act, that interpretation must be put upon it which is most favorable to the state; that the words of the grant, being attributable to the party procuring the legislation, are to receive a strict construction as against the grantee; and that, as the state acts for the public good, we should expect to find the grant consistent with good morals and the general welfare of the state at large, and of the particular community to be affected. These are large concessions, and of course, in order to defeat the grant, they ought not to be pushed beyond the bounds of reason, so as to result in a strained and improbable construction. Reasonable effect must be given to the language employed, and the manifest intent of the enactment must prevail. *469 By an act of congress approved September 20, 1850, (9 St. p. 466,) the right of way not exceeding 200 feet in width through the public lands was granted to the state of Illinois for the construction of a railroad from the southern terminus of the Illinois & Michian Canal in that state (at La Salle) to Cairo, at the confluence of the Ohio and Mississippi rivers, with a branch from that line to Chicago, and another, via the city of Galena, to Dubuque, in the state of Iowa. A grant of public lands was also made to the state to aid in the construction of the railroad and branches, which by the terms of the act were to be and remain a public highway for the use of the government of the United States, free from toll or 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

42 Tab 4 13 S.Ct. 110 Page U.S. 387, 13 S.Ct. 110, 36 L.Ed (Cite as: 146 U.S. 387, 13 S.Ct. 110) other charge upon the transportation of any property or troops of the United States. It was also provided that the United States mail should at all times be transported on the said railroad, under the direction of the post-office department, at such price as the congress might by law direct. This act of congress was formally accepted by the legislature of the state February 17, Laws 1851, pp. 192, 193. Seven days before the acceptance-february 10, 1851-the Illinois Central Railroad Company was incorporated for the purpose of constructing, maintaining, and operating the railroad and branches contemplated in the act of congress. By the second section of its charter the company was authorized and empowered to survey, locate, construct, complete, alter, maintain, and operate a railroad, with one or more tracks or lines of rails, from the southern terminus of the Illinois & Michigan Canal to a point at the city of Cairo, with a branch of the same to the city of Chicago, on Lake Michigan, and also a branch via the city of Galena to a point on the Mississippi river opposite the town of Dubuque, in the state of Iowa. It was provided in the third section that the said corporation shall have right of way upon, and may appropriate to its sole use and control for the purposes contemplated herein, land not exceeding two hundred feet in width through its entire length; may enter upon and take possession of and use, all and *470 singular, any lands, streams, and materials of every kind, for the location of depots and stopping stages, for the purpose of constructing bridges, dams, embankments, excavations, station grounds, spoil banks, turnouts, engine houses, shops, and other buildings necessary for the construction, completing, altering, maintaining, preserving, and complete operation of said road. All such lands, waters, materials, and privileges belonging to the state are hereby granted to said corporation for said purposes; but when owned or belonging to any person, company, or corporation, and cannot be obtained by voluntary grant or release, the same may be taken and paid for, if any damages are awarded, in the manner provided in An act to provide for a general system of railroad incorporations, **125 approved November 5, 1849, and the final decision or award shall vest in the corporation hereby created all the rights, franchises, and immunities in said act contemplated and provided.' The eighth section had the following provision: Nothing in this act contained shall authorize said corporation to make a location of their track within any city without the consent of the common council of said city. By the fifteenth section the right of way and all the lands granted to the state by the act of congress before mentioned, and also the right of way over and through lands owned by the state, were ceded and granted to the corporation for the purpose of surveying, locating, constructing, completing, altering, maintaining, and operating said road and branches. There was a requirement in this section (clause 3) that the railroad should be built into the city of Chicago. By the eighteenth section the company was required, in consideration of the grants, privileges, and franchises conferred, to pay into the treasury of the state, on the first Monday of December and June of each year, 5 per centum of the gross receipts of the road and branches for the six months then next preceding. The twenty-second section provided for the assessment of an annual tax for state purposes upon all the property and assets of the corporation; and if this tax and the 5 per cent. charge upon the gross receipts should not amount to 7 per cent. *471 of the total proceeds, receipts, or income of the company, it was required to pay the difference into the state treasury, so as to make the whole amount paid equal at least to seven per cent. of the gross receipts of said corporation. Exemption was granted in that section from all taxation of every kind, except as herein provided for. The act of November 5, 1849, referred to in the third section of the charter, provided a mode for condemning land required for railroad uses, and contained an express provision that upon the entry of judgment the corporation shall 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

43 Tab 4 13 S.Ct. 110 Page U.S. 387, 13 S.Ct. 110, 36 L.Ed (Cite as: 146 U.S. 387, 13 S.Ct. 110) become seised in fee of all the lands and real estate described during the continuance of the corporation. 2 Laws 1849, p. 27. The consent of the common council to the location of the railroad within the city of Chicago was given by an ordinance passed June 14, On the 16th of April, 1869, an act was passed by the legislature of Illinois, entitled An act in relation to a portion of the submerged lands and Lake Park grounds lying on and adjacent to the shore of Lake Michigan, on the eastern frontage of the city of Chicago. The third section of this act provided as follows: Sec. 3. The right of the Illinois Central Railroad Company, under the grant from the state in its charter, which said grant constitutes a part of the consideration for which the said company pays to the state at least seven per cent. of its gross earnings, and under and by virtue of its appropriation, occupancy, use, and control, and the riparian ownership incident to such grant, appropriation, occupancy, use, and control, in and to the lands submerged or otherwise lying east of the said line running parallel with and four hundred feet east of the west line of Michigan avenue, in fractional sections ten (10) and fifteen, (15,) township and range as aforesaid, is hereby confirmed; and all the right and title of the state of Illinois in and to the submerged lands constituting the bed of Lake Michigan, and lying east of the tracks and breakwater of the Illinois Central Railroad Company for the distance of one mile, and between the south line of the south pier extended eastwardly and a line extended eastward from the south line *472 of lot twentyone, south of and near to the roundhouse and machine shops of said company, in the south division of the said city of Chicago, are hereby granted, in fee, to the said Illinois Central Railroad Company, its successors and assigns: provided, however, that the fee to said lands shall be held by said company in perpetuity, and that the said company shall not have power to grant, sell, or convey the fee to the same, and that all gross receipts from use, profits, leases, or otherwise of said land, or the improvements thereon, or that may hereafter be made thereon, shall form a part of the gross proceeds, receipts, and income of the said Illinois Central Railroad Company, upon which said company shall forever pay into the state treasury, semiannually, the per centum provided for in its charter, in accordance with the requirements of said charter: and provided, also, that nothing herein contained shall authorize obstructions to the Chicago harbor, or impair the public right of navigation, nor shall this act be construed to exempt the Illinois Central Railroad Company, its lessees or assigns, from any act of the general assembly, which may be hereafter passed, regulating the rates of wharfage and dockage to be charged in said harbor; and provided, further, that any of the lands hereby granted to the Illinois Central Railroad Company, and the improvements now or which may hereafter be on the same, which shall hereafter be leased by said Illinois Central Railroad Company to any person or corporation, or which may hereafter be occupied by any person or corporation other than said Illinois Central Railroad Company, shall not, during the continuance of such leasehold estate or of such occupancy, be exempt from municipal or other taxation. Laws 1869, pp By this act the right of the railroad company to all the lands it had appropriated and occupied, lying east of a line drawn parallel to and 400 feet east of the west line of Michigan avenue, in fractional sections 10 and 15, was confirmed; and a further grant was made to the company of the submerged lands lying east of its tracks and break water, within **126 the distance of one mile therefrom, between the south line of the south pier extended eastwardly and a line extended eastward from the south line of lot 21. *473 What is the fair and natural import of the language used? So long as the act stands in force, there seems to me to exist a contract whereby the Illinois Central Company is to have and enjoy perpetual possession and control of the lands in question, with right to improve the same and take the rents, issues, and profits thereof, provided always that the company shall not have the power to sell or alien such lands, 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

44 Tab 4 13 S.Ct. 110 Page U.S. 387, 13 S.Ct. 110, 36 L.Ed (Cite as: 146 U.S. 387, 13 S.Ct. 110) nor shall the company be authorized to maintain obstructions to the Chicago harbor, or to impair the public right of navigation; nor shall the company, its lessees of assigns, be exempted from any act of the general assembly which may be hereafter passed, regulating the rates of wharfage and dockage to be charged in said harbor, and whereby, in consideration of the grant of these rights and privileges, it shall be the duty of the company to pay, and the right of the state to receive, 7 per cent. of the gross receipts of the railroad company from use, profits, leases, or otherwise, of said land, or the improvements thereon, or that may be hereafter made thereon. Should the railroad company attempt to disregard the restraint on alienating the said lands, the state can, by judicial proceeding, enjoin such an act, or can treat it as a legal ground of forfeiting the grant; or, if the railroad company fails or refuses to pay the per centum provided for, the state can enforce such payment by suit at law, and possibly by proceedings to forfeit the grant. But, so long as the railroad company shall fulfill its part of the agreement, so long is the state of Illinois inhibited by the constitution of the United States from passing any act impairing the obligation of the contract. Doubtless there are limitations, both express and implied, on the title to and control over these lands by the company. As we have seen, the company is expressly forbidden to obstruct Chicago harbor, or to impair the public right of navigation. So, from the nature of the railroad corporation and of its relation to the state and the public, the improvements put upon these lands by the company must be consistent with their duties as common carriers, and must be calculated to *474 promote the efficiency of the railroad in the receipt and shipment of freight from and by the lake. But these are incidents of the grant, and do not operate to defeat it. To prevent misapprehension, it many be well to say that it is not pretended, in this view of the case, that the state can part, or has parted, by contract, with her sovereign powers. The railroad company takes and holds these lands subject at all times to the same sovereign powers in the state as obtain in the case of other owners of property. Nor can the grant in this case be regarded as in any way hostile to the powers of the general government in the control of harbors and navigable waters. The able and interesting statement, in the opinion of the majority, of the rights of the public in the navigable waters, and of the limitation of the powers of the state to part with its control over them, is not dissented from. But its pertinency in the present discussion is not clearly seen. It will be time enough to invoke the doctrine of the inviolability of public rights when and if the railroad company shall attempt to disregard them. Should the state of Illinois see in the great and unforeseen growth of the city of Chicago and of the lake commerce reason to doubt the prudence of her legislature in entering into the contract created by the passage and acceptance of the act of 1869, she can take the rights and property of the railroad company in these lands by a constitutional condemnation of them. So, freed from the shackles of an undesirable contract, she can make, as she expresses in her bill a desire to do, a more advantageous sale or disposition to other parties, without offense to the law of the land. The dectrine that a state, by making a grant to a corporation of her own creation, subjects herself to the restraints of law judicially interpreted, has been impugned by able political thinkers, who may perhaps find in the decision of the court in the present case some countenance of their views. But I am unable to suppose that there is any intention on the part of this court to depart from its doctrine so often expressed. *475 We have no knowledge of any authority or principle which could support the doctrine that a legislative grant is revocable in its own nature, and held only durante bens placito. Such a doctrine * * * is utterly inconsistent with a great and fundamental principle of a republican government,-the right of the citizens to the free enjoyment of their property 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

45 Tab 4 13 S.Ct. 110 Page U.S. 387, 13 S.Ct. 110, 36 L.Ed (Cite as: 146 U.S. 387, 13 S.Ct. 110) legally acquired. A private corporation created by the legislature may lose its franchises by a misuser or nonuser of them, and they may be resumed by the government under a judicial judgment upon a quo warranto to ascertain and enforce the forfeiture. * * * But that the legislature can repeal statutes creating private corporations, or confirming to them property already acquired under the faith of previous laws, and by such repeal can vest the property of such corporations exclusively in the state, or dispose of the same to such purposes as they may please, without the consent or default of the corporators, we are not prepared to admit; and we think ourselves standing upon the principles of natural justice, upon the fundamental laws of every free government, upon the spirit and the letter of the constitution of the United States, and upon the decisions of most respectable judicial tribunals, in resisting such a doctrine. Terrett v. Taylor, 9 Cranch, 43. **127 In Stone v. Mississippi, 101 U. S. 814, Chief Justice Waite, in delivering the opinion of the court, said: It is now too late to contend that any contract which a state actually enters into, when granting a charter to a private corporation, is not within the protection of the clause in the constitution of the United States that prohibits states from passing laws impairing the obligation of contracts. The doctrines of Trustees v. Woodward, 4 Wheat. 518, announced by this court more than sixty years ago, have become so imbedded in the jurisprudence of the United States as to make them, to all intents and purposes, a part of the constitution itself. The obvious conclusion from the foregoing view of the case is that the act of 1873, as an arbitrary act of revocation, not passed in the exercise of any reserved power, is void; that the *476 decree of the court below should be reversed; and that that court should be directed to enter a decree dismissing the bill of the state of Illinois and the cross bill of the city of Chicago. I am authorized to state that Mr. Justice GRAY and Mr. Justice BROWN concur in this dissent. U.S Illinois Cent. R. Co. v. State of Illinois 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed END OF DOCUMENT 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

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48 Tab 6 Page 1 of 6 September 8, 2011 Hon. Joseph Comuzzi Chair, Canadian Section International Joint Commission 234 Laurier Avenue West 22nd Floor Ottawa, Ontario KIP 6K6 Re: Abstract for a Joint Presentation to the International Joint Commission: Renewal of Great Lakes Water Quality Agreement: The Integration of Water Quality, Quantity, and Ecosystems as Commons Held in Public Trust Dear Canadian Chair Joseph Comuzzi: This letter is submitted as an abstract and request for a joint presentation 1 by Canadian Maude Barlow, National Chairperson, Council of the Canadians, and American, James Olson, Chair, Flow for Water Great Lakes, to the International Joint Commission ( IJC ). 2 The joint presentation would provide a timely opportunity for the IJC, its boards and staff, and the public to review, study and consider the integration of water quantity under Article III of the Boundary Water Treaty and quality and protection of the Great Lakes ecosystem under Article IV of the Treaty and the Great Lakes Water Quality Agreement and related documents ( WQA ). This request specifically asks the IJC to set aside time for a joint presentation by Ms. Barlow and Mr. Olson at a regular or special meeting of the IJC sometime after the Biennial WQA Meeting in Detroit, October 12-14, While the subject matter of the joint presentation is germane to the Water Quality Agreement Biennial meeting, the subject matter of 1 James Olson is sending a separate but nearly identical request for a joint presentation to the IJC to American Co-Chair Lana Pollack. 2 Maude Barlow is a world leader for the human right to water and the Great Lakes as a Commons, author of several books, Senior Advisor on Water to the 63rd President of the United Nations General Assembly, widely respected lecturer and policy leader. She chairs the Council of Canadians, one of Canada s largest public interest non-profit organizations. James Olson has been a leading public interest, water, and environmental lawyer for more than 35 years, including his work in Michigan Citizens for Water Conservation v Nestlé, a case that became a catalyst for the negotiation of the Great Lakes Compact. He has written books and articles and lectured on water, public trust, the Great Lakes Compact and International Trade Law. He chairs Flow for Water, a Great Lakes coalition of more than a dozen non-profit organizations that seek to protect the integrity of Great Lakes waters from abuse, diversion and export.

49 Tab 6 Page 2 of 6 the requested joint presentation seems more appropriate for special attention at an IJC s meeting in the near future. James Olson will present a briefing paper on the legal foundation for integrating water quantity and water quality based on the Boundary Waters Treaty of 1909, the WQA and related programs, and the historical legal basis for the management of water as commons and public trust. Maude Barlow will present a briefing paper Our Great Lakes Commons: A Plan to Protect the Great Lakes Forever, which calls for the declaration of the Great Lakes and its ecosystem as a living shared commons for the future health, livelihood, security, prosperity of the countries and their 40 million citizens who live on or near the Great Lakes. Together Ms. Barlow and Mr. Olson will stress the importance of a commons and public trust principles as a framework for integrating and protecting water quality and quantity under the Boundary Waters and the WQA, thus providing for a comprehensive response to the rapidly increasing and myriad threats to the Great Lakes ecosystem. The looming global and North American water crisis demands a proactive response in the same way the vision of the 1972 WQA fostered a dynamic proactive response to water pollution almost years ago. The magnitude of the water crisis 3 (such as the unprecedented choke-point between demands for energy, food and water documented by Water News, 4 coupled with climate change and other threats, such as invasive species, nuclear waste shipments, fracking deep shale, sewage overflows, non-point runoff, invasive species, including Asian Carp, continued loss of wetlands, and shifts toward private markets and control of water) will challenge the current framework of the WQA. Climate change, diversions, withdrawals, and uses of water affect flows and levels. In turn, these effects affect the biological, chemical, and physical integrity of water and the Great Lakes ecosystem. The controversial Substitute House Bill 231 recently passed by the Ohio legislature demonstrates how quickly water quantity can be transferred to a threat to water quality. A shift of water toward private interests by preemptive massive water withdrawals or declaring Lake Erie a commodity 5 would threaten a competition for water and cumulative effect on flows and levels of boundary waters and the Great Lakes ecosystem. Under the Ohio legislation, international treaties and trade laws like NAFTA could have been construed to authorize the export of water out of the Great Lakes despite the diversion ban in the Great Lakes Compact. 6 3 Prude Homme, Alex, The Ripple Effect: The Fate of Freshwater in the Twenty First Century (Scribner 2011). According to U.N. reports more than 1 billion people in the world do not have access to clean water, and it could increase to as more than 3 billion in 15 to 20 years. 4 Schneider, Keith, ChokePoint U.S.: Understanding the Tightening Conflict Between Energy and Water in the Era of Climate Change, Water News, Circle of Blue (Sept. 2010). 5 Sec. 4, Sub. H.B. No. 231 (as passed by Senate) (Ohio, 129 th General Assembly, Reg. Session , July, 2011). 6 Olson, James M., Navigating the Great Lakes Compact, Water, Public Trust, and International Trade Agreements, 2006 Mich. St. Law Rev 1103 (2007) Av. Laurier Ave West/Ouest, Ottawa, Ontario K1P 5V5 Tel: (613) , Fax/Téléc: (613) inquiries@canadians.org

50 Tab 6 Page 3 of 6 However, Articles III and IV of the Boundary Waters Treaty could be used to study and address the various threats to the boundary waters by integrating water quantity and quality under the WQA or a similar parallel agreement. Alternatively, based on the evolution of the ecosystem approach under the WQA, the IJC could foster an integration of quality or pollution goals with quantity or flow and level goals for the next 40 years. Boundary Waters Treaty The Boundary Water Treaty empowers the IJC to protect quality and quantity by protecting flows and levels of boundary waters:... no further or other uses or obstructions or diversions... of boundary waters on either side of the line, affecting the natural level or flow of boundary waters... shall be made except by authority of the United States or the Dominion of Canada within their respective jurisdictions and with the approval... of... the International Joint Commission. 7 The Treaty also empowers the IJC to protect the quality of these waters from pollution:... the waters herein defined as boundary waters and waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the other. Article VIII vests the IJC with the jurisdiction to approve uses, diversions or obstructions that may affect flows and levels. Each country has equal rights to rights in the use of the waters without disturbance of existing uses or diminishment of the amount available for use. 8 Decisions are subject to principles of equal use except for a preference for domestic and sanitary purposes, navigation, power and irrigation. 9 Water Quality Agreement In 1972, the IJC in adopting the WQA launched a long-term effort to protect the boundary waters. The WQA has evolved into an ecosystem approach that integrates water quality with water and land uses, air deposition, direct and non point discharges, and overland stormwater drainage and run off. Flows and levels, whether induced or caused by human activities, are an integral part of water quality and the health and integrity of the Great Lakes ecosystem Art III, Treaty between the Untied States and Great Britain Relating to Boundary Waters Between the United States and Canada of 1909 (referred to herein as Boundary Waters Treaty ). Article III also addresses the jurisdiction of the International Joint Commission over water works projects provided the works do not materially affect the flow of boundary waters on the other side. 8 Id., Article VIII. 9 Id. 10 The IJC already collects data on flows and levels of boundary waters Av. Laurier Ave West/Ouest, Ottawa, Ontario K1P 5V5 Tel: (613) , Fax/Téléc: (613) inquiries@canadians.org

51 Tab 6 Page 4 of 6 The pioneering work of the IJC and its Science Advisory and Water Quality Boards has focused on critical water pollution issues, including phosphorous, toxics, non point and direct discharges, sewage, invasive species, and shipping impacts. More recently the focus has turned to the integrity of the ecosystem or "interacting components of air, land, water, and living organisms, including humans, within the drainage basin..." 11 One of the IJC s specific goals adopts an "Ecosystem Objective" that seeks to "maintain the chemical, physical and biological integrity of the waters of the Great Lakes Basin Ecosystem." 12 Under the Boundary Waters Treaty and/or the WQA and its integrated ecosystem approach, the IJC could be instrumental in promoting research, exploration, public education, and oversight of the affects of uses, diversions, exports, obstructions, climate change, and other activities on the flows and levels and ecosystem of the Great Lakes. Once again, by acting now the IJC can play a lead role in managing and protecting boundary waters and the ecosystem through a context and framework that integrates quantity and pollution threats that face both countries, their communities, citizens, and businesses in the Twenty First Century. Water Commons and Public Trust Law Canadian and United States water law supports the integration of water quality and quantity to protect the integrity of the Great Lakes ecosystem. Water has been considered public and a commons for nearly 2000 years. 13 This basic principle is embedded in the common law. Water is common to all citizens and is therefore protected and regulated for the common use and benefit of citizens. 14 The basic principle is also inherent in Canadian law, where landowners have rights to use water, but do not own it outright since it remains and is owned by the Crown. Like the U.S. states, Canada and its provinces share constitutional and statutory powers to manage and protect water for the public good. 15 The Great Lakes Compact between the Great Lakes states declares the waters of the Great Lakes a precious public natural resource shared and held in by the states. 16 The parallel agreement between Ontario and Quebec and the states 11 WQA, Art 1 (g)( Great Lakes ecosystem). 12 Id. 13 Institutes of Justinian, (529 A.D): By the law of nature, these things are common to [humankind]: the air, running water, the sea, and consequently the shores of the sea. 14 Arnold v Mundy, 6 N.J.L.1, 71 (1821). Others [property] remain common to all the citizens... Of this later kind are the air, the running water, the sea, the fish, and the wild beasts... But inasmuch as the things which constitute this common property are things in which a sort of transient usufructuary possession, only, can be had;... the wisdom of the law has placed it in the hands of the sovereign power, to be held, protected, and regulated for the common use and benefit. This basic principle has been uniformly recognized by the states <CITE>. 15 Sec. 109, Constitution Act (1867). Public lands, and uses thereof, such as water, belongs to the Crown, but the beneficial use of public lands is given to the provinces. 16 Sec a.. and b., Great Lakes-St. Lawrence River Basin Water Resources Compact Av. Laurier Ave West/Ouest, Ottawa, Ontario K1P 5V5 Tel: (613) , Fax/Téléc: (613) inquiries@canadians.org

52 Tab 6 Page 5 of 6 declares the waters of the Great Lakes are a shared public treasure and the States and Provinces as stewards have a shared duty to protect, conserve and manage these waters. 17 U.S. courts have ruled that the waters of the Great Lakes and their tributary lakes and streams are owned by the states and, in most instances, held as a public trust for the benefit of its citizens. In 1892, the U.S. Supreme Court, in the Illinois Central Railroad v Illinois case, extended the public trust doctrine to the Great Lakes. 18 The Court ruled that waters of the Great Lakes could not be transferred for primarily private purposes and that no private or public use could materially impair public trust waters or uses. Great Lakes states have applied the public trust doctrine to the Great Lakes and inland lakes and streams. 19 More recently, several jurisdictions have extended the doctrine to groundwater because of its seamless single hydrologic connection to lakes and streams. 20 In the past decade, Canada has witnessed a keen interest in the public trust doctrine or its principles as part of its fundamental law. 21 One court has foreshadowed the recognition of the public trust doctrine for special or unique public resources, like water. 22 Canadian water policy experts have called for the evaluation and potential application of the public trust doctrine in Canada because the two countries share the same legal heritage of at least 100 significant water bodies Preamble, Great Lakes-St. Lawrence River Basin Water Resources Agreement, Dec. 13, U.S. 387 (1892). ( The trust devolving upon the state for the public... cannot be relinquished by a transfer... ). See generally, Sax, Joseph L., The Public Trust Doctrine in Natural Resources Law, 68 Mich L Rev 471 (1970). 19 E.g. Obrecht v National Gypsum Co., 105 NW2d 143 (Mich. 1960); Scott v Chicago Park District, 360 NE2d 773 (Ill. 1976). See also Scanlan, Melissa, The Evolution of the Public Trust Doctrine [in Wisconsin], 27 Ecology L. Q. 135 (2000). Olson, James M., The Public Trust Doctrine [in Michigan], 1975 Det. Col. L. Rev. 161 (1975). 20 Nat l Audubon v Super. Ct. Alpine County, 658 P2d 709 (Cal. 1983)(tributary waters to public trust waters subject to protection under public trust doctrine); In re Water Use Permit Applications, 9 P3d 409 (Haw. 2000)(public trust in groundwater); In re Omya,(Opinion, Wright J., Vt. Tr. Ct. No , Feb. 28, 2011) (upheld public trust duty to protect groundwater under Vermont public trust statute). 21 Pentland, Ralph, The Public Trust Doctrine: Potential in Canadian Water and Environmental Management, POLIS Ecological Sustainability Project, Discussion Paper No , (B.C., June 2009); Canadian Forest Products v R in right of British Columbia, 2004 SCC 38 (2004); Maguire, John C., Fashioning an Equitable Vision for Public Resource Protection and Development in Canada, The Public Trust Doctrine Revisited, Journal of Environmental Law and Policy (1997). 22 Canadian Forest Products, n. 11, supra. 23 Pentland, Ralph, n. 11, supra. Alberta and British Columba water and policy experts are looking at the public trust doctrine as an umbrella context for provincial water allocation and even limited water marketing regimes. Brandes, Oliver M. and Christiansen, Randy, The Public Trust and Modern BC Water Act, POLIS (June 2010) Av. Laurier Ave West/Ouest, Ottawa, Ontario K1P 5V5 Tel: (613) , Fax/Téléc: (613) inquiries@canadians.org

53 Tab 6 Page 6 of 6 Summary In summary, this letter/abstract proposes a joint presentation that will brief and explore with the IJC, its boards and staff, other organizations, and the public the critical importance of integrating water quantity and flow and level issues with water quality and pollution covered by the current Great Lakes Water Quality Agreement, Annexes, and special objectives. Significant threats from the increasing intensity of the world water crisis and the demand for protection of both quality and the flows and levels of the Great Lakes and its ecosystem point toward an integration of water quantity and quality by the IJC under Articles III and IV of the Boundary Waters Treaty. As an overarching protection of the quality and quantity of the precious boundary waters between the U.S. and Canada, and the equal use of these waters, the IJC has the authority to adopt and should adopt a statement or declaration that the Great Lakes are a commons subject to and protected by the public trust. Your consideration of this submission and request for a joint presentation to the IJC is most appreciated. If you or other members of the Commission or its staff have any questions or need further information, please advise. Thank you. Sincerely, Maude Barlow National Chairperson Council of Canadians c.c. Lyall D. Knott, Commissioner Pierre Trépanier, Commissioner Av. Laurier Ave West/Ouest, Ottawa, Ontario K1P 5V5 Tel: (613) , Fax/Téléc: (613) inquiries@canadians.org

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61 Tab 8 Page 1 of 2 Great Lakes Water Legacy Fall 2011 As a lifelong and proud inhabitant of Michigan, I look to our water future with both apprehension and hope. The source of my apprehension is the ever-growing global demand for and threatened harm to fresh water. Since the Great Lakes contain almost one-fifth of the world s surface fresh water, it is a tempting target for those who wish to use it unsustainably or export it far beyond our borders. Another source of concern is the magnitude of harms that now threaten these waters. The effects of climate change, loss of fish and wildlife, invasive species, and dead zones so far exceed the extent of harms in the past that these waters may no longer be viable generation to generation. For centuries, our rivers and lakes have been considered a commons belonging to us all, available for use so long as that use does not impair the uses of others. Too, as a public trust resource, water has been defined as something that must remain in the watershed from which it comes to protect the uses, both private and public, that are allowed to take place there. Although we should enjoy our water wealth, it is important that the word wealth not be defined literally. Great Lakes water is not a commodity to be bought and sold, like oil or wasted like throw away garbage, but rather a common gift to all of us, which government must protect and we must defend and use sustainably here to grow and maintain a vital economy and quality of life. Any attempt to sell or export, or endanger this gift, is shortsighted and will endanger our prosperity and environment. The Great Lakes are literally and figuratively the headwaters of our history. Native Americans, First Peoples and European explorers used Great Lakes as a primary transportation route as well as a source of drinking water and food from fishing. They held the streams, rivers, and Great Lakes in awe. In their different ways, these communities viewed water as something sacred, not to be treated as a commodity for barter and trade, but a public trust. Our vision must remain thus.

62 Tab 8 Page 2 of 2 If we observe this principle in public policy and private actions, there will be no limit to our prosperity. Water will then continue to define us, enrich us in ways that include but reach far beyond dollar values, and be our legacy to generations to come. It is no wonder that the Supreme Court once declared that our streams, lakes, and Great Lakes are held in a high, solemn and perpetual trust. William G. Milliken

63 Tab 9 THE INTERNATIONAL JOINT CQMMISSION AND THE BOUNDARY WATERS TREATY OF 1909

64 Tab 9 II TREATY of January 11, 1909, between the United States and Great Britain RATIFICATION, PROCLAMATION, MEETING AND ADOPTION AND PUBLICATION OF RULES OF PROCEDURE Signed at Washington Ratification advised by the Senate Ratified by Great Britain Ratified by the President Ratifications exchanged at Washington Proclaimed January 11, 1909 March 3, 1909 March 31, 1910 April 1, 1910 May 5, 1910 May 13, 1910 INTERNATIONAL JOINT COMMISSION Meeting of Commission for organization under Article XII of the Treaty at Washington Adoption and publication of Rules of Procedure in accordance with Article XII Major Revision of the Rules of Procedure January 10, 1912 February 2, 1912 December 2,

65 Tab 9 TREATY BETWEEN THE UNITED STATES AND GREAT BRITAIN RELATING TO BOUNDARY WATERS, AND QUESTIONS ARISING BETWEEN THE UNITED STATES AND CANADA The United States of America and His Majesty the King of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas, Emperor of India, being equally desirous to prevent disputes regarding the use of boundary waters and to settle all questions which are now pending between the United States and the Dominion of Canada involving the rights, obligations, or interests of either in relation to the other or to. the inhabitants of the other, along their common frontier, and to make provision for the adjustment and settlement of all such questions as may here after arise, have resolved to conclude a treaty in furtherance of these ends, and for that purpose have appointed as their respective plenipotentiaries: The President of the United States of America, Elihu Root, Secretary of State of the United States; and His Britannic Majesty, the Right Honourable James Bryce, O.M., his Ambassador Extraordinary and Plenipotentiary at Washington; Who, after having communicated to one another their full powers, found in good and due form, have agreed upon the following articles: PRELIMINARY ARTICLE For the purpose of this treaty, boundary waters are defined as the waters from main shore to main shore of the lakes and rivers and connecting waterways, or the portions thereof, along which the international boundary between the United States and the Dominion of Canada passes, including all bays, arms, and inlets thereof, but not including tributary waters which in their natural channels would flow into such lakes, rivers, and waterways, or waters flowing from such lakes, rivers, and waterways, or the waters of rivers flowing across the boundary. ARTICLE I The High Contracting Parties agree that the navigation of all navigable boundary waters shall forever continue free and open for the purposes of commerce to the inhabitants and to the ships, vessels, and boats of both countries equally, subject, 6

66 Tab 9 however, to any laws and regulations of either country, within its own territory, not inconsistent with such privilege of free navigation and applying equally and without discrimination to the inhabitants, ships, vessels, and boats of both countries. It is further agreed that so long as this treaty shall remain in force, this same right of navigation shall extend to the waters of Lake Michigan and to all canals connecting boundary waters, and now existing or which may hereafter be constructed on either side of the line. Either of the High Contracting Parties may adopt rules and regula tions governing the use of such canals within its own territory and may charge tolls for the use thereof, but all such rules and regulations and all tolls charged shall apply alike to the subjects or citizens of the High Contracting Parties and the ships, vessels, and boats of both of the High Contracting Parties, and they shall be placed on terms of equality in the use thereof. ARTICLE II Each of the High Contracting Parties reserves to itself or to the several State Gov ernments on the one side and the Dominion or Provincial Governments on the other as the case may be, subject to any treaty provisions now existing with respect thereto, the exclusive jurisdiction and control over the use and diversion, whether temporary or permanent, of all waters on its own side of the line which in their natural channels would flow across the boundary or into boundary waters; but it is agreed that any interference with or diversion from their natural channel of such waters on either side of the boundary, resulting in any injury on the other side of the boundary, shall give rise to the same rights and entitle the injured parties to the same legal remedies as if such injury took place in the country where such diversion or interference occurs; but this provision shall not apply to cases already existing or to cases expressly covered by special agreement between the parties hereto. It is understood, however, that neither of the High Contracting Parties intends by the foregoing provision to surrender any right, which it may have, to object to any inter ference with or diversions of waters on the other side of the boundary the effect of which would be productive of material injury to the navigation interests on its own side of the boundary. ARTICLE III It is agreed that, in addition to the uses, obstructions, and diversions heretofore permitted or hereafter provided for by special agreement between the Parties hereto, no further or other uses or obstructions or diversions, whether temporary or permanent, of boundary waters on either side of the line, affecting the natural level or flow of boundary waters on the other side of the line shall be made except by authority of the United States or the Dominion of Canada within their respective jurisdictions and with the approval, as hereinafter provided, of a joint commission, to be known as the International Joint Commission. 7

67 Tab 9 The foregoing provisions are not intended to limit or interfere with the existing rights of the Goyerriment of the United States on the one side and the Government of the Dominion of Canada on the other, to undertake and carry on governmental works in boundary waters for the deepening of channels, the construction of breakwaters, the improvement of harbours, and other governmental works for the benefit of commerce and navigation, provided that such works are wholly on its own side of the line and do not materially affect the level or flow of the boundary waters on the other, nor are such provisions intended to interfere with the ordinary use of such waters for domestic and sanitary purposes. ARTICLE IV The High Contracting Parties agree that, except in cases provided for by special agree ment between them, they will not permit the construction or maintenance on their respective sides of the boundary of any remedial or protective works or any dams or other obstructions in waters flowing from boundary waters or in water~ at a lower level than the boundary in rivers flowing across the boundary, the effect of which is to raise the natural level of waters on the other side of the boundary unless the construction or maintenance thereof is approved by the aforesaid International Joint Commission. It is further agreed that the waters herein defined as boundary waters and waters flow ing across the boundary shall not be polluted on either side to the injury of health or property on the other. ARTICLE V The High Contracting Parties agree that it is expedient to limit the diversion of waters from the Niagara River so that the level of Lake Erie and the flow of the stream shall not be appreciably affected. It is the desire of both Parties to accomplish this object with the least possible injury to investments which have already been made in the construction of power plants on the United States side of the river under grants of authority from the State of New York, and on the Canadian side of the river under licences authorized by the Dominion of Canada and the Province of Ontario. So long as this treaty shall remain in force, no diversion of the waters of the Niagara River above the Falls from the natural course and stream thereof shall be permitted except for the purposes and to the extent hereinafter provided. *The United States may authorize and permit -the diversion within the State of New York of the waters of said river above the Falls of Niagara, for power purposes, not exceeding in the aggregate a daily diversion at the rate of twenty thousand cubic feet of water per second. *The United Kingdom, by the Dominion of Canada, or the Province of Ontario, may authorize and permit the diversion within the Province of Ontario of the waters of said 8

68 Tab 9 river above the Falls of Niagara, for power purposes, not exceeding in the aggregate a daily diversion at the rate of thirty-six thousand cubic feet of water per second, *The prohibitions of this article shall not apply to the diversion of water for sanitary or domestic purposes, or for the service of canals for the purposes of navigation. Note: The third, fourth and fifth paragraphs of Article V were terminated by the Canada-United States Treaty of February 27, 1950 concerning the diversion of the Niagara River. ARTICLE VI The High Contracting Parties agree that the St. Mary and Milk Rivers and their tributaries (in the State of Montana and the Provinces of Alberta and Saskatchewan) are to be treated as one stream for the purposes of irrigation and power, and the waters thereof shall be apportioned equally between the two countries, but in making such equal apportionment more than half may be taken from one river and less than half from the other by either country so as to afford a more beneficial use to each. It is fur ther agreed that in the division of such waters during the irrigation season, between the 1st of April and 31st of October, inclusive, annually, the United States is entitled to a prior appropriation of 500 cubic feet per second of the waters of the Milk River, or so much of such amount as constitutes three-fourths of its natural flow, and that Cana da is entitled to a prior appropriation of 500 cubic feet per second of the flow of St. Mary River, or so much of such amount as constitutes three-fourths of its natural flow. The channel of the Milk River in Canada may be used at the convenience of the Unit ed States for the conveyance, while passing through Canadian territory, of waters diverted from the St. Mary River. The provisions of Article II of this treaty shall apply to any injury resulting to property in Canada from the conveyance of such waters through the Milk River. The measurement and apportionment of the water to be used by each country shall from time to time be made jointly by the properly constituted reclamation officers of the United States and the properly constituted irrigation officers of His Majesty under the direction of the International Joint Commission. ARTICLE VII The High Contracting Parties agree to establish and maintain an International Joint Commission of the Untied States and Canada composed of six commissioners, three on the part of the United States appointed by the President thereof, and three on the part of the United Kingdom appointed by His Majesty on the recommendation of the Governor-in-Council of the Dominion of Canada. 9

69 Tab 9 ARTICLE VIII This International Joint Commission shall have jurisdiction over and shall pass upon all cases involving the use or obstruction or diversion of the waters with respect to which under Article III and IV of this treaty the approval of this Commission is required, and in passing upon such cases the Commission shall be governed by the following rules of principles which are adopted by the High Contracting Parties for this purpose: The High Contracting Parties shall have, each on its own side of the boundary, equal and similar rights in the use of the waters hereinbefore defined as boundary waters. The following order of precedence shall be observed among the various uses enumerat ed hereinafter for these waters, and no use shall be permitted which tends materially to conflict with or restrain any other use which is given preference over it in this order of precedence: (1) Uses for domestic and sanitary purposes; (2) Uses for navigation, including the service of canals for the purposes of navigation; (3) Uses for power and for irrigation purposes. The foregoing provisions shall not apply to or disturb any existing uses of boundary waters on either side of the boundary. The requirement for an equal division may in the discretion of the Commission be sus pended in cases of temporary diversions along boundary waters at points where such equal division can not be made advantageously on account of local conditions, and where such diversion does not diminish elsewhere the amount available for, use on the other side. - The Commission in its discretion may make its approval in any case conditional upon the construction of remedial or protective works to compensate so far as possible for the particular use or diversion proposed, and in such cases may require that suitable and adequate provision, approved by the Commission, be made for the protection and indemnity against injury of any interests on either side of the boundary. In cases involving the elevation of the natural level of waters on either side of the line as a result of the construction or maintenance on the other side of remedial or protec tive works or dams or other obstructions in boundary waters or in waters flowing there from or in waters below the boundary in rivers flowing across the boundary, the Com mission shall require, as a condition of its approval thereof, that suitable and adequate provision, approved by it, be made for the protection and indemnity of all interests on the other side of the line which may be injured thereby. The majority of the Commissioners shall have power to renckr a decision. In case the Commission is evenly divided, upon any question or matter presented to it for decision, separate reports shall be made by the Commissioners on each side to their own Coy- 10 ernment. The High Contracting Parties shall thereupon endeavour to agree upon an

70 Tab 9 adjustment of the question or matter of difference, and if an agreement is reached between them, it shall be reduced to writing in the form of a protocol, and shall be communicated to the Commissioners, who shall take such further proceedings as may be necessary to carry out such agreement. ARTICLE IX The High Contracting Parties further agree that any other questions or matters of difference arising between them involving the rights, obligations, or interests of either in relation to the other or to the inhabitants of the other, along the common frontier between the United States and the Dominion of Canada, shall be referred from time to time to the International Joint Commission for examination and report, whenever either the Government of the United States or the Government of the Dominion of Canada shall request that such questions or matters of difference be so referred. The International Joint Commission is authorized in each case so referred to examine into and report upon the faêts and circumstances of the particular questions and mat ters referred, together with such conclusions and recommendations -as may be appro priate, subject, however, to any restrictions or exceptions which may be imposed with respect thereto by the terms of the reference. Such reports of the Commission shall not be regarded as decisions of the questions or matters so submitted either on the facts or the law, and shall in no way have the char acter of an arbitral award. The Commission shall make a joint report to both Governments in all cases in which all or a majority of the Commissioners agree, and in case of disagreement the minori ty may make a joint report to both Governments, or separate reports to their respec tive Governments. In case the Commission is evenly divided upon any question or matter referred to it for report, separate reports shall be made by the Commissioners on each side to their own Government. ARTICLE X Any questions or matters of difference arising between the High Contracting Parties involving the rights, obligations, or interests of the United States or of the Dominion of Canada either in relation to each other or to their respective inhabitants, may be referred for decision to the International Joint Commission by the consent of the two Parties, it being understood that on the part of the United States any such action will be by and with the advice and consent of the Senate, and on the part of His Majesty s Government with the consent of the Governor General in Council. In each case so referred, the said Commission is authorized to examine into and report upon the facts 11

71 Tab 9 and circumstances of the particular questions and matters referred, together with such conclusions and recommendations as may be appropriate, subject, however, to any restrictions or exceptions which may be imposed with respect thereto by the terms of the reference. A majority of the said Commission shall have power to render a decision or finding upon any of the questions or matters so referred. If the said Commission is equally divided or otherwise unable to render a decision or finding as to any questions or matters so referred, it shall be the duty of the Commissioners to make a joint report to both Gov ~rnments, or separate reports to their respective Governments, showing the different conclusions arrived at with regard to the matters or questions so referred, which ques tions or matters shall thereupon be referred for decision by the High Contracting Par ties to an umpire chosen in accordance with the procedure prescribed in the fourth, fifth and sixth paragraphs of Article XLV of the Hague Convention for the pacific set tlement of international disputes, dated October 18, Such umpire shall have power to render a final decision with respect to those matters and questions so referred on which the Commission fail to agree. ARTICLE XI ~: A duplicate original of all decisions rendered and joint reports made by the Comrnis sion shall be transmitted to and filed with the Secretary of State of the United States and the Governor General of the Dominion of Canada, and to them shall be addressed all communications of the Commission. ARTICLE XII The International Joint Commission shall meet and organize at Washington promptly after the members thereof are appointed, and when organized the Commission may fix such times and places for its meetings as may be necessary, subject at all times to special call or direction by the two Governments, Each Commissioner, upon the first joint meeting of the Commission after his appointment, shall, before proceeding with the work of the Commission, make and subscribe a solemn declaration in writing that he will faithfully and impartially perform the duties imposed upon him under this treaty, and such declaration shall be entered on the records of the proceedings of the Commission. 12 The United States and Canadian sections of the Commission may each appoint a sec retary, and these shall act as joint secretaries of the Commission at its joint sessions, and the Commission may employ engineers and clerical assistants from time to time as it may deem advisable. The salaries and personal expenses of the Commission and of the secretaries shall be paid by their respective Governments, and all reasonable and necessary joint expenses of the Commission, incurred by it, shall be paid in equal moieties by the High Contracting Parties.

72 Tab 9 The Commission shall have power to administer oaths to witnesses, and to take evi dence on oath whenever deemed necessary in any proceeding, or inquiry, or matter within its jurisdiction under this treaty and all parties interested therein shall be given convenient opportunity to be heard, and the High Contracting Parties agree to adopt such legislation as may be appropriate and necessary to give the Commission the pow ers above mentioned on each side of the boundary, and to provide for the issue of sub poenas and for compelling the attendance of witnesses in proceedings before the Commission. The Commission may adopt such rules of procedure as shall be in accordance with justice and equity, and may make such examination in person and through agents or employees as may be deemed advisable. ARTICLE XIII In all cases where special agreements between the High Contracting Parties hereto are referred to in the foregoing articles, such agreements are understood and intended to include not only direct agreements between the High Contracting Parties, but also any mutual arrangement between the United States and the Dominion of Canada expressed by concurrent or reciprocal legislation on the part of Congress and the Par liament of the Dominion. ARTICLE XIV The present treaty shall be ratified by the President of the United States of America, by and with the advice and consent of the Senate, thereof, and by His Britannic Majesty. The ratifications shall be exchanged at Washington as soon as possible and the treaty shall take effect on the date of the exchange of its ratifications. It shall remain in force for five years, dating from the day of exchange of ratifications, and thereafter until terminated by twelve months written notice given by either High Contracting Party to the other. In faith whereof the respective plenipotentiaries have signed this treaty in duplicate and have hereunto affixed their seals. Done at Washington the 1 1th day of January~ in the year of our Lord one thousand nine hundred and nine. (Signed) ELIHU ROOT [SEAL] (Signed) JAMES BRYCE [SEAL] 13

73 Tab 9 And WHEREAS the Senate of the United States by their resolution of March 3, 1909, (two-thirds of the Senators present concurring therein) did advise and consent to the ratification of the said Treaty with the following understanding to wit: Resolved further, (as a part of this ratification), that the United States approves this treaty with the understanding that nothing in this treaty shall be construed as affect ing, or changing, any existing territorial or riparian rights in the water, or rights of the owners of lands under, on either side of the international boundary at the rapids of the St. Mary s river at Sault Ste. Marie, in the use of water flowing over such lands, sub ject to the requirements of navigation in boundary waters and of navigation canals, and without prejudice to the existing right of the United States and Canada, each to use the waters of the St. Mary s river, within its own territory, and further, that noth ing in the treaty shall be construed to interfere with the drainage of wet swamp and overflowed lands into streams flowing into boundary waters, and that this interpreta tion will be mentioned in the ratification of this treaty as conveying the true meaning of the treaty, and will, in effect, form part of the treaty; AND WHEREAS the said understanding has been accepted by the Government of Great Britain, and the ratifications of the two Governments of the said Treaty were exchanged in the City of Washington, on the 5th day of May, one thousand nine hun dred and ten; NOW THEREFORE, be it known that I, William Howard Taft, President of the Unit ed States of America, have caused the said Treaty and the said understanding, as forming a part thereof, to be made public, to the end that the same and every article and clause thereof may be observed and fulfilled with good faith by the United States and the citizens thereof. In testimony whereof, I have hereunto set my hand and caused the seal of the United States to be affixed. Done at the City of Washington this thirteenth day of May in the year of our Lord one thousand nine hundred and ten, and of the Independence of the United States of America the one hundred and thirty-fourth. Wm. H. Taft [SEAL] By the President: P C Knox Secretary of State 14

74 Tab 9 PROTOCOL OF EXCHANGE On proceeding to the exchange of the ratifications of the treaty signed at Washington on January 11, 1909, between the United States and Great Britain, relating to bound ary waters and questions arising along the boundary between the United States and the Dominion of Canada, the undersigned plenipotentiaries, duly authorized thereto by their respective Governments, hereby declare that nothing in this treaty shall be construed as affecting, or changing, any existing territorial, or riparian rights in the water, or rights of the owners of lands under water, on either side of the international boundary at the rapids of St. Mary s River at Sault Ste. Marie, in the use of the waters flowing over such lands, subject to the requirements of navigation in boundary waters and of navigation canals, and without prejudice to the existing right of the United States and Canada, each to use the waters of the St. Mary s River, within its own ter ritory; and further, that nothing in this treaty shall be construed to interfere with the drainage of wet, swamp, and overflowed lands into streams flowing into boundary waters, and also that this declaration shall be deemed to have equal force and effect as the treaty itself and to form an integral part thereto. The exchange of ratifications then took place in the usual form. IN WITNESS WHEREOF, they have signed the present Protocol of Exchange and have affixed their seals thereto. DONE at Washington this 5th day of May, one thousand nine hundred and ten. PHILANDER C KNOX [SEAL] JAMES BRYCE [SEAL] 15

75 Tab 10 Page 1 of 6 Summary of Threats, Losses, and Issues in the Great Lakes Basin The following is an overview of several main issues facing our water resources with a particular focus on the Great Lakes Basin. The twenty-first century brings a more complex set of issues and while they are interconnected, we tried to separate them into individual threats for ease of reference. 1. High Demand for Energy Sources There is a many-fold increase in the demand for energy, which has untold effects on water and the environment. The most significant issue is hydraulic fracturing or fracking, an unconventional process with a demand for water that is magnitudes beyond conventional energy sources. Millions of gallons of water (estimates range from two to five million gallons per well) are used in thousands of wells in the country and there are an array of potentially harmful chemicals injected into the ground during the process. 1 The industry does not disclose the chemical inputs if it doesn t have to. It also results in contaminated water that must be properly disposed of as well as potentially harmful gasses that are escaping into the atmosphere both concerns as demand for energy increases. While recycling wastewater is an option to the disposal issue, some wells recycle less than half of the wastewater produced. 2 Wastewater is also an issue with other fossil-fuels including nuclear plant production. Furthermore, this pressure on the water supply is also affecting farmers who require water inputs in the form of irrigation and are competing with the energy companies for the same water. 3 The Great Lakes contribute to recreation, drinking water supplies, industries, and other activities that require clean freshwater. With water running out in other parts of the world, we must recognize the need to protect the region s abundance of water. The direct conflict between water availability for these activities and energy production is on the rise creating a chokepoint between farming, communities and the energy industry. In the western United States, it is estimated that the oil in the shale at least equals the reserves in Saudi Arabia. However, there may not be enough water causing major disruption with local communities, farmers and ranchers. 4 In order to achieve energy independence for the United States from these western reserves, water must be diverted to other regions of the continent, most likely the Great Lakes. 1 U.S. House, Committee on Energy and Commerce. Chemicals Used in Hydraulic Fracturing. April 2011, available at pdf. 2 Ian Urbina, Wastewater Recycling No Cure-All in Gas Process. New York Times. March 1, 2011, available at 3 Richard Heinberg, Earth s limits: Why growth won t return water. Energy Bulletin. March 4, 2011, available at 4 Unconventional Oil Reserves in and Around the US. Heating Oil.com. August 5, 2009, available at Unconventional-Oil-Reserves.pdf.

76 Tab 10 Page 2 of 6 2. Water Withdrawals, Exports and Diversions, including Gaps in the Great Lakes Compact, Relaxed Water Use Standards in the States, and Threat of NAFTA and International Trade Laws Exports from the Basin due to an export loophole in the Great Lakes St. Lawrence River Basin Compact diversion ban. The Compact is an anti-water diversion, water withdrawal, conservation and regional body agreement between the eight Great Lakes states and approved by Congress. It prohibits new or increased diversions of water out of the Basin with a few exceptions. One major exception is water that is used in the production process for a product that is then transferred out of the watershed. Product includes water produced by human or mechanical means and intended for intermediate or end use consumers. 5 This was not meant to exempt unlimited quantities of water in unlimited sized containers (as a product or export) from leaving the watershed. In addition, the courts in several states, including Ohio and Michigan, have shifted common law water use rights to include diversion and exports of water from watersheds that diminish flows and levels of streams. 6 This condones harm to the integrity of water and ecosystem of the Great Lakes and opens the door for international trade law claims under NAFTA and GATT. There is no consistency between water withdrawal permit legislation and threshold limits among the states even though they share the same body of water and thus the effects. In addition there continue to be a lack of funding and accountability for required data and information to make sound decisions concerning the effects of water diversions, uses, or discharges of contaminants. 3. Water Infrastructure and Privatization The shift of water supplies from private to public and slowly back to private is causing issues with providing affordable, safe water to all people. The United Nations record of proceedings before the General Assembly for the first time recognized water as both human right and public trust meaning that it is held by government for the benefit of peoples access and use of water, and that governments have an affirmative duty to protect peoples right to clean, safe water for drinking and domestic uses. 7 The recognition of water as a human right is consistent with Canadian and U.S. water law, at least in terms of safe drinking water and water infrastructure for the health, safety and welfare of people and communities. However, because of the financial crisis and the lack of funds to restore our cities infrastructure, there is continuing pressure on cities, like Milwaukee, Chicago, and Detroit, to privatize that is transfer municipal water 5 Great Lakes-St. Lawrence River Basin Water Resources Compact. (Public Law , December 2008). Text from: Public Laws by Law Number. Available from Thomas (Library of Congress), Accessed: 11/16/11. 6 Olson, James M., Navigating the Great Lakes Compact: Water, Public Trust, and International Trade Law, 2006 Mich St. L. Rev 1103, 1119 (2007). 7 United Nations General Assembly. The Human Right to Water and Sanitation. (Resolution 64/292, August 3, 2010). Text from: United Nations Documentation: Research Guide. Available from United Nations, Accessed: 11/17/11.

77 Tab 10 Page 3 of 6 withdrawn from or near the Great Lakes, infrastructure, services, operations, and rates to private water corporations. Generally, privatization of municipal water supplies has resulted in increased costs, higher rates and shut-offs for the poor and people of color, and deterioration of infrastructure. The focus should not be profit, but rather accessibility, sanitation, cost pricing, and good service. In addition, where water is withdrawn for privately controlled public water supplies for service or use outside the Basin such as Waukesha, WI, private persons are diverting water from the Great Lakes primarily for private gain. 4. 0Climate Change Examples exist throughout the Basin of effects that climate change have had. Temperatures are up throughout the lakes affecting fish production, tree and other plant growth, transportation, and agriculture among other issues. Water levels in the Great Lakes could drop anywhere between one and two feet in the next several decades. Other projections include as much as a 25 percent increase in precipitation during Michigan s spring and winter, one-third less snow days in Minnesota, and the destruction of crops by pests as a result of warmer temperatures. 8 The result could mean food shortages, a catastrophe in our already-struggling global economy, as well as projections of billions of dollars of The hydrologic cycle as applied specifically to the Great Lakes Basin. ( economic loss annually due to an uptick in severe weather events. 9 The United Nations Intergovernmental Panel on Climate Change has even released a report asking countries to devise disaster management plans as climate change effects become more pronounced. 10 Restoration and education efforts exist, but the complexity of the issue combine with the scale of the problem and the number of players involved is slowing any recovery that may exist. Climate change needs to be viewed as a diversion of water from the hydrologic cycle, and if we view and protect it as an overall commons and through the application of public trust principles, we can and will unify, integrate and complement existing federal and state water quality and quantity efforts and enforcement. 8 Union of Concerned Scientists. Confronting Climate Change in the U.S. Midwest. (2009). Available at 9 United Nations Environment Programme Finance Initiatives. Climate Change & The Financial Services Industry, Module 1 Threats and Opportunities. UNEP Finance Initiatives Climate Change Working Group. (July 2002). Text from and available from UNEPFI, Accessed: 11/18/ United Nations Intergovernmental Panel on Climate Change. Special Report on Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation. (2011). Available at

78 Tab 10 Page 4 of 6 5. Population Demands/Overpopulation There is increased pressure on water resources as populations grow in the Basin and beyond. There is a larger need for water services without the infrastructure to support them. 11 In addition, as mentioned previously, there is a larger need to fulfill growing energy demands which is only making water more necessary as our growing consumptive uses increase. United Nations projections indicate that food production needs to double by 2050 to meet the demand of population growth. 12 Food production is completely reliant upon natural resources and food security is a very real problem as we try to grapple with the factors that brought it about. The Great Lakes Basin needs ironclad protection from major diversions for production and use elsewhere. It s important to note that only one percent of the lakes are replenished each year via rain and snow. 13 All resources have limitations; public trust principles would allow for a more unified approach to handling these limitations. 6. Invasive Species, including Asia Carp Shipping has an historical significance to the Great Lakes Basin. Commerce has built many cities and communities in the area, but has introduced invasive species into the region. Since the 1800s more than 160 aquatic nuisance species (ANS) have entered the Great Lakes ecosystem. 14 One particularly dangerous ANS, the quagga mussel, was discovered in the Great Lakes Basin in the late 1980s (as was another closely related ANS, the zebra mussel) and is presumed to have arrived via ocean-going ships that traveled the St. Lawrence Seaway. One estimate from the National Oceanic and Atmospheric Administration sites that there are 437 trillion Quagga mussels just in Lake Michigan alone. 15 They have, however, infected all five Great Lakes, disrupting the food chain and interfering with the ecosystem. The U.S. Fish and Wildlife Service estimates the economic losses over the last decade at about $5 billion within the Great Lakes region alone. 16 Asian Carp, another significant danger to the Basin has crippled the fishing industry, a 7 billion dollar a year operation and has been named one of the greatest threats to the region. 17 While the Army Corps of Engineers has tried to alleviate concerns through a comprehensive research project to study the effects of Asian Carp on the region, it is not slated for completion until 2015 which communities have agreed could be 11 Shiney Varghese, Privatizing U.S. Water. Institute for Agriculture and Trade Policy. July 2007, available at 12 Food and Agriculture Organization of the United Nations. How to Feed the World in (2009). Text from and available from FAO, Accessed: 11/18/ Great Lakes Can t Handle Sale of Water. Associated Press. March 15, 2000, available at 14 Great Lakes Commission. Great Lakes Aquatic Nuisance Species. (2010). Available at 15 Ash-har Quraishi, Great Lakes Invasion: Quagga Mussels Wreak Havoc on Ecosystem. Chicago Tonight/WTTW- TV. November 15, 2011, available at 16 Ash-har Quraishi, Great Lakes Invasion: Quagga Mussels Wreak Havoc on Ecosystem. Chicago Tonight/WTTW- TV. November 15, 2011, available at 17 Nicole Thompson, Asian carp called the biggest threat to Great Lakes in years. Daily Herald. February 14, 2011, available at

79 Tab 10 Page 5 of 6 too late. Public trust principles under the International Joint Commission would require overall integrative look at the impacts of uses, diversions, obstructions or dams in the context of both water levels and flows and biological pollution. This would not only allow a stronger comprehensive integrated program of quantity and quality, but also require limitations on the diversions and use of water, including dams, and shipping ballast water regulations and enforcement where such uses impair public use contrary to public trust doctrine. 7. 0Pollution, such as Eutrophication in Lake Erie ( Dead zones ) Lake Erie, as you may already know, was nearly written off in the 1960s due to a process called eutrophication, a water quality issue that means nutrient overloading from fertilizers and human and animal waste. 18 The Great Lakes Water Quality Agreement signed by the United States and Canada in 1972 made inroads on the phosphorous levels and other pollutants in Lake Erie, but it is once again facing pollution issues that are a danger to the area Lake Erie at the mouth of the Maumee River, from a landsat satellite (bluewatersatellite.com). and its inhabitants (see image). Eutrophication, an unsupportable overload of plant life as well as the diminished presence of wetlands has turned the shallowest of the Great Lakes back into a growing wasteland full of algae blooms and dead zones. Industry and agriculture are prominent activities around Lake Erie and industrial dumping, runoff, and sanitation shortfalls are linked to the water s struggles. 19 While these issues can be seen most acutely in Lake Erie, point source and nonpoint source pollution are issues throughout the waters of the Great Lakes Basin. Regulations aren t consistent across watersheds, states, and provinces; pointing to the need for an all-encompassing approach putting public trust principles at the forefront in order to affect change. 8. Commodification and Abuses of water, such as Ohio House Bill 231 A recent and important example of abuses of water can be seen in Ohio House Bill 231 proposed legislation that would allow for unsustainable withdrawal limits and weakened permit standards for withdrawal, and would break the Great Lakes Compact, of which Ohio bound. The bill which would apply to the waters of Lake Erie would have relaxed 18 Nancy Macdonald, Canada s sickest lake. Maclean s Magazine. August 20, 2009, available at 19 Tony Dutzik and Amy Gomberg. Public Health at Risk, The Dangers Posed by Sewage Pollution in Ohio s Lake Erie Basin. Ohio PIRG Education Fund. Spring Text from and available at