Tossing Mullet

Harvey Jackson is a professor of history at Jacksonville State University up “north” who recently wrote (Jan. 23, Anniston Star) a biting commentary on the recent victory of local residents on the coast who defeated the efforts to build additional launching ramps. It would suffice to simply reprint his column except there may be a larger and more problematic issue that we are going to have to deal with in the region.

This particular case involved an unholy alliance between ardent conservationists and the property owners in the gated community of Ono Island. The State owns a small disconnected fragment of natural dune habitat on Perdido Key. The resource planners in Orange Beach proposed the conversion of the five or so acres into a public boat launching ramp for the general public.

They have been faced with serious issues of trailer parking and road congestion during the boating/fishing seasons (which are about nine out of 12 months around here) for a number of years. The ramps at Cotton Bayou and Boggy Point are clearly at capacity. The City of Orange Beach has demonstrated the capacity to build and maintain really lovely public venues and there is no reason to think this would have been anything else.

The State has an inherent interest in providing public access to the coastal waters, which are deeper and more abiding than most people realize. The ocean, the waters, the living resources therein, and the bottom land below are held in trust by the State for the public. We, collectively, hold the real title to that resource and the State has the obligation of any trustee under “trust law” to manage that in our best interests—all of us!

My position is rooted deep in the Corpus Juris Civilis (Body of Civil Law). The code was drawn up by a committee of leading lawyers who were appointed by Emperor Justinian I in A.D. 528. It remains in the legal vocabulary as “the public trust doctrine.” The principle was re-invigorated almost 20 years ago in “Putting the Public Trust Doctrine to Work,” first published in 1990 by David Slade.

Mr. Slade is a constitutional lawyer who described the process as “waking up Rip van Winkle” because the very legal principle had not been utilized in the body of American civil law for decades, but he recognized the power that it represented. At the time he was chief counsel for the Coastal States Organization. It’s not an obligation that the State can ignore if we bring it to court - it’s real and the judges are beginning to recognize it for what it is - a legal right of the real owners of the resource base and we are guaranteed access!

Needless to say the Ono Island property owners had willing dupes in the environmental community that has been pushed to the point where they feel compelled to try to protect every scrap of habitat without exception. They have plenty of reason on their side as we have watched the decimation of the dunelands of the Alabama coast and the demise of the native species peculiarly adapted to that environment. Unfortunately the site in question is completely surrounded by human development and has been impacted by our adjacency for many years.

Surveys of the site have not found any remaining beach mice and Dr. Jackson tells an old story that the old-time developers deliberately released cats in the area to complete the extirpation of the resident population. It looks like there is precious little fresh water on the site. U.S. Fish and Wildlife has learned to their sorrow that the critical habitat of the beach mouse includes the higher elevations where additional vegetation and water can be found. I say “to their sorrow” because they made the mistake of letting development interests pressure them into a premature mapping of beach mouse critical habitat and then having to expand it when more data became available. It is all too likely that this fragment of land will do little to preserve the species.

On the other hand, a safe launch facility close to the mouth of Perdido Bay would resolve some of the traffic problems, and the boat wakes that have so damaged our shorelines and grass beds would be diminished dramatically. I doubt this issue was ever pressed in the debate (frankly it just occurred to me). At any rate, the unlikely alliance managed to convince a majority of the Orange Beach City Council it was a bad idea and without their support the Alabama Department of Conservation and Natural Resources backed away from their responsibility under the Public Trust Doctrine and abandoned the project on their land above our high water mark of public ownership!

The greater insult to the doctrine is considerably more difficult to deal with. The aftermath of Ivan/Katrina/Rita has provided enormous focus on “resilient” communities and storm “resistant” structures at scales ranging from single-family dwellings to (very) high rise condominiums. And the fact has emerged that we can build these structures so that they will survive many levels of many storms—they can! But, and it’s a big but, it will cost significantly more than we have been used to paying.

Just being on the coast is part of that public trust. The law speaks directly to navigation, conducting commerce, fishing, recreation and similar uses and other states have added bird watching, baby strollers, etc. to a growing list of entitled activities.

My growing concern is that even fewer people than before will be able to afford even a time share on the beach or a three-day weekend at the mullet toss! But the issues of eroding shore lines and greater storm activity at any level force us to face the engineering demands.

The point being that as much as I appreciate the few dunelands that we have left, I have to think public access should have trumped preservation of this isolated habitat fragment. The folks that already have a great deal managed to keep a lot of people from even getting a look at what little they had left!

George Crozier is Lagniappe columnist. Contact him at GCrozier@bellwether-group.com.

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