C O N C E S S I O N A I R E A C T I V I T I E S ON P U B L I C L A N D S :
P U B L I C R I G H T S T O A C C E S S
C E C I L K U H N E
63

Cecil Kuhne
Concessionaire Activities on Public Landsi
Public Rights to Access
Texas Tech University
School of Lav
April 2Q
9
1978
Law 721
64

Concessionaire Activities on Public Landst public Rights to Access
I. River Recreation Management
II. Statutes Governing River Use
III. public Trust Doctrine
IV. Judicial Decisions Concerning River Management
V. Recommendations
VI® Conclusion
65

Concessionaire Activities on Public Landst
Public Rights to Access
I. River Recreation Managementi An Overview
In the early l970*s most popular Western rivers began experiencing levels of recreational use unprecedented in their history* The Colorado River through the
Grand Canyon is a good example. In the year 1972,
16,432 people floated through the Grand Canyon, more than the total number of people who floated the Canyon during the period from 1869 through 1969. On the wild segment of the Rogue River in Oregon, total use increased from an estimated 2,800 visitors in 1971 to 7,200 visitors in 1974. Similarly, use on the Rio Grande in New Mexico increased from a total of 17,000 visitor days in 1968 to
108,000 in 1974. in 1973 recreational use on the Stanislaus
River in California was estimated at 31,000 visitor days, but since then it has increased at a rate of 10 to 15 per cent each year* Noncommercial use alone rose 250 per cent between 1973 and 1974 in Desolation Canyon
(Green River) and 380 per cent in Westwater Canyon (Colorado
66

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R iver)
This massive increase in recreational use rightfully has concerned the agencies managing these rivers, and the concept of limiting use by imposing yearly ceilings on
2 use was introduced* The prevalent view among managing agencies maintains that unless controls are placed on the number of people who are allowed to float these rivers, the resource itself might become permanently damaged?
After a ceiling on use has been established, the issue then becomes how much a limited resoux-ce should be allocated to the various groups who wish to use it.
In the past agencies have rigidly divided proportions among the various interested groups. In the case of river running, this policy has resulted in the granting of a fixed percentage of the yearly allocation to commercial outfitters, while non-commercial users receive the remainder of the allocation. On most rivers the relative percentages were determined by "historical precedent." At the time the ceiling is introduced, the relative percentages are set at the level of actual use during the last year of unlimited use. Since the allocation remains fixed, such a system does not account for later
4 changes, often dramatic, which occur m later years.
The Grand Canyon is one of the best examples of
67

such changing patterns. After the 1972 season a ceiling was established for the following years, with the 1972 use pattern set as the "historical precedent" for determining the allocation. This historical precedent granted 92% of the allocation to commercial rafting companies, with the remaining 8% for non-commercial
6
The table below represents the number of non-commercial trip applications in the years from 1972 to 1977, the number of permits issued and the relative "percentage of success" in obtaining a non-commercial permitt
Year Number of Number of
Applications Permits Issued
1972 47 47
1973 74 49
1974 84 41
1975 173 42
1976 425 36
1977 515 37
Percentage of Success
100%
64%
49%
24%
8 %
7%
In each year since 1972, the commercial outfitters have failed to use the total allocation available to them, with the unused commercial allocation at times compromising
60% of the total non-commercial use allowed. Although many commercial outfitters use all of their individual allocation, many others do not. On the date that rejection
68

notices were sent to 93% of those who applied for non-commercial trips in 1977, space was widely available on most commercial trips, which demonstrates the relative ease of floating the river on a commercial
. 7 trip as opposed to a non-commercial trip*
And yet the commercial/non-commercial allocation in the Grand Canyon is not atypical. Only 10% of the allowed use on the Colorado River through Cataract
Canyon and 13% on the Green and Yampa Rivers through
Dinosaur National Monument is allocated for non-commercial on those rivers with fixed allocations, is 50%.
Commercial outfitters contend that their services provide benefits to the general public. They maintain that their services increase the access of the public boatmen, as well as a "quality river experience."
Since the primary justification of commercial outfitters rests upon their ability to run rivers non-commercial trips are likewise capable. Despite the mystique surrounding rafting, river rafting is can learn to guide a raft through rapids. The marketplace has also responded to the increase in river recreation,
69

and durable and reasonably priced rafts and other related
13 equipment are now easily available*
River management plans, in so far as they guarantee a certain percentage of commercial user days, limit public use to the portion of the public who use the services of commercial outfitters. The central problem concerns whether this curtailment of use to non-commercial groups is a proper exercise of discretion by government agencies under the governing statutes and court decisions.
The problem demands an examination of the government's duty to the public in regulating public lands.
II. Statutes Governing River Use
Most of the rivers in this country are managed either by the U.S. Forest Service or by the National
Park Service. The general authority of the Forest
Service is governed by the statute which provides that the Secretary of Agriculture may act to "regulate the
14 . . occupancy and use" of public lands. Commercial activities on national forest lands are governed by another statute which requires commercial enterprises to obtain a special permit from the Forest Service before commencing their commercial activities. The statute specifically statesi
"The authority provided by this section shall be exercised
70

in such manner as not to preclude the general public from full enjoyment of the natural, scenic, recreational,
15 and other aspects of the national forest."
The Organic Park Act, which is applicable to the
National Park Service, similarly provides for access by the general publici "no natural curiosities, wonders, or objects of interest shall be leased, rented, or granted to them by the public;..."^ The Concessions Policy Act of 1965, referring to commercial activities, uses even more restrictive language! " [i] t is the policy of the
Congress that such development [commercial] shall be limited to those that are necessary and appropriate in which they are located..." (Emphasis added) If the public is able to recognize the recreational purpose of rivers without concessionaire services, then commercial
18
The Wild and Scenic Rivers Act sets forth directives for the management of the classified riverst
Each component of the national wild and scenic rivers system shall be administered in such manner as to protect and enhance the values which caused it to be included in said system, without, insofar as is consistent therewith, limiting other uses that do not substantially interfere with public use and enjoyment of these values. In such administration, primary emphasis shall be given to protecting its esthetic, scenic, historic, archeologic
71

and scientific features. Management plans for any such component may establish varying degrees of intensity for its protection and development based on the special attributes of the area.
The Act classifies rivers as "wild," "scenic," and
"recreational" according to the river's degree of development. Each river is to be managed in order to
. , , . . 19 preserve it as it existed in its free flowing condition.
One of the first questions to resolve under the
Act is whether the legislative intent of the Act seeks to maximize unconditionally the recreational use of wild rivers, perhaps the recreational function of commercial outfitters is justified on rivers which have been designated as "recreational" under the Act.
This classification permits other concessionaires such as lodges and resorts, and it envisions development and private enterprises on the river. In the context of a "wild" river classification, however, legislative history indicates that the promotion of recreation is not always compatible with the preservation of wilderness aesthetics. A House Report recognized the potential conflict between recreational use and wilderness aesthetics!
A third principle embodied in H.R. 18260 an earlier variant of the Wild and Scenic Rivers
Act is its recognition that different streams need to be protected and preserved for different reasons. Some deserve protection solely for their value as completely natural streams.
Others deserve protection because of the recreational opportunities they afford. In some instances, these two objectives may be compatible; in others they will be incompatible.
2 0

If river sections designated as "wild" under the
Act must be compatible with preservation of a wilderness aesthetic, the issue then is whether large commercial parties are inconsistent with wild river aesthetics.
In addition to areas classified as "Wilderness Areas"
21 by the Wilderness Act, the Act has also become recognized as a useful guide for the management of wild river sections.
22
The Act specifically states "there shall be no commercial enterprise in the Wilderness," with the exception that
"commercial service may be performed within Wilderness
Areas...to the extent necessaty for activities which are proper for realizing the recreational or other wilderness purposes of the areas." If concessionaire activities are not necessary and proper for realizing the recreational potential of these Wilderness Rivers, the managing agency is acting outside the provisions of the Wilderness Act.
To determine if commercial services are necessary and proper, two questions ariset Assuming no commercial services are available, what level of public use would occur?
To what extent will non-commercial use realize the recreational or other wilderness purposes of these areas?
III. Public Trust Doctrine
23
An ancient doctrine is currently enjoying a renewed vigor in determinations of public land litigation

the public trust doctrine. The doctrine, simply stated, maintains that the government holds public lands in trust for the indefinite public. The trust is a relationship between parties in which the court will hold the trustee to strict standards of performing certain duties for the
25 benefit of the beneficiary. In this case the government
26 is the trustee and the indefinite public is the beneficiary.
The public trust doctrine and its legally enforceable consequences apply to all decisions affecting the use of public lands, including river management plans.
Two modern examples demonstrate the use of the public trust doctrine. A public commission in Massachusetts received legislative authority to construct a tramway and other facilities at a park site under its jurisdiction-
The commission expanded somewhat on the legislative authorization and planned a major development for the
Greylock Reservation Commission, held that a change in the character of the use of public lands is impermissable without a clear showing of legislative approval, which the court found to be lacking. The court continued!
There seems to be implicit in the cases a feeling that there is something questionable about the uses of government authority to restrict, rather than to spread, public benefits. At the extreme, that attitude is reflected in the judicial rule that government may not act for a purely private purpose. 28
74

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A similar case in California involved a controversy between the town of Emeryville and the San Francisco Bay
29
Conservation and Development Commission (BCDC). The town claimed that a landfill project begun prior to the creation of the BCDC was exempted by a grandfather clause in the statute. The Commission sought an injunction because the large-scale development planned by Emeryville was far different from the limited plans announced by the town at the inception of the project. The court granted the injunction.
It is clear that the public trust doctrine applies to the streams and rivers of the nation as well as the
30 public lands. In Hillebrand v. Knapp the court recognized this application of the doctrine to a broad category of watersi "sometimes the coverage of the trust depends on a judicial definition of navigability, but that is a rather vague concept which may be so broad as to include all waters which are suitable for public recreation." Likewise, another state court applied the public trust doctrine to prohibit the conversion of a river bed into private farm land, holding that "public trust lands can be devoted for the change."
Thus, the burden of justifying an allocation of public lands or rivers to accomodate commercial uses

lies upon the governmental agency making the allocation.
The agencies administering these lands, however, have generally operated in the reverse manner by holding hearings which require the public to attend and voice opinions why lands should not be largely allocated to commercial uses. This hearing policy shifts the burden of justification upon the public, while the public trust doctrine requires that the government justify its allocation of public trust lands to private concerns.
The most celebrated public trust case in American law concerned the legality of a governmental unit conveying the shoreline of Lake Michigan to a private railroad. The U.S. Supreme Court held that the action was invalid under the public trust doctrine on the grounds that when a state holds a resource which is available for the free use of the general public, a court will look with considerable skepticism upon any governmental conduct which is calculated either to reallocate that resource to more restricted uses or to subject public uses to the self interest of private
32 parties.
What constitutes the "free use by the general public" which is protected by the public trust doctrine?
Free use by the general public does not mean that agencies have no authority to restrict public uses on rivers.

An overall restriction of user days is clearly justified under the general welfare and police power doctrines &nd to achieve the intent of legislation, such as the Wild and
Scenic Rivers Act and the Wilderness Act.
Free use by the general public, however, does connotate certain factorsi
(1) Absence of specific financial qualification,
(2) Absence of any commercial middlemen whose services must be purchased by the general public in order to obtain access to public lands or rivers, and
(3) Absence of any limits on use by the general indefinite public which would favor use by a more discrete portion of the public.
The essential feature of a public use is that it is not confined to privileged individuals but is open to the indefinite public, and it is this indefiniteness
33 or unrestricted quality which gives it its public character.
The Massachusetts Supreme Court applied the public trust doctrine to invalidate the action of a state forest commission in granting a permit allowing a ski resort to operate on public landsi
This recreational scheme [a ski resort]...is to compete with private recreational ventures of similar character. The profit sharing feature and some aspects of the project itself suggest a commercial enterprise. In addition to the absence of any clear or express statutory authority authorization...we find no express grant to the
Authority of power to permit use of public lands... for what seems, in part at least, a commercial venture for private profit. 34
77

Other cases demonstrate that the highest degree of judicial scrutiny w i n be exercised upon decisions which transfer the use of public lands to restricted
35 and, especially, profit producing uses. An Ohio court expressed this aspect of the doclzrinei
The state as trustee for the public cannot by acquiescence abandon the trust property or enable a diversion of it to private ends different from the object for which the trust was created.
It is thus inconsistent with the public trust doctrine for government trustees to administers the lands or rivers contained in the trust for the benefit and economic well being of private concerns rather than for the benefit of the public beneficiaries.
IV. Judicial Decisions Concerning River Management
In an earlier day there was a uniform acceptance by the public that the government should manage public lands as it saw fit. The management policies of these government agencies, however, are now being increasingly challenged by the public. The case of Sierra Club v.
37
Morton encouraged this trend by recognizing that
"interested parties" such as the Sierra Club had the right to bring suit against the decision maker when its decision might injure the aesthetics or ecology of
78
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a preserved paikarea. The Court defined "interested parties" as a person or group who has used the area in question for recreational activities. One need not have an economic or proprietary interest in the land in order to obtain judicial review of an agency's decision affecting the land.
River management plans, for their legal basis, rely upon the statute allowing the agency to regulate the
38 use and occupancy of public lands. The meaning of this provision has been litigated in several contexts, and the court decisions offer a means of measuring
The court in United States v. Reeves held that a regulation prohibiting the running of dogs at large in the Ozark National Forest was properi "As long as such rules and regulations tend to protect the lands and faithfully preserve the interest of the people of the whole country in the lands, the courts should enforce such rules and regulations. National Forests are established for the benefit of the public and if the best interests of the public require that unconfined dogs shall not be permitted thereon...the same is valid."
(Emphasis added) The court thus measured the validity of the regulations in accordance with whether they promoted the interests of the public as opposed to some discrete interest group.

40
In McMichael v. United States the court upheld the validity of prohibitions against motor vehicle use in wilderness areas on the grounds that the regulation was a reasonable means of providing the public with a wilderness area. As in United States v. Reeves, supra, the emphasis is upon measuring the benefit to the indefinite public at large and the compatability of the regulation with the applicable legislation.
41
In a later case. Heath v. Aspen Skiing Corp., the court reviewed the validity of granting special permits to a corporation to operate a ski school on public lands.
After finding that it was in the public interest to have well-developed, financially sound ski areas, the court went on to find that "the use of slopes for instruction by the ski school will be regulated to prevent interference with public use."
From the holdings of these cases emerge two principles as to the validity of regulations affecting public landsi
(1) The regulations must benefit the public as a whole, and
(2) The regulations must be reasonably related to promoting the intention of the specific legislation involved.

From these considerations arise the question of
Whether regulations granting river permits to commercial outfitters, while denying permits to non-commercial groups, meets these two criteria. The managing agency, it would seem, must explain the public benefits provided by its regulations which, on their face, appear to diminish the rights of non-commercial users.
The authorization of concessionaire activities may be a proper method of public land management if those activities promote the public use of those lands»
The Secretary of the Interior is responsible for maintaining our national parks, and for providing facilities and services for their public enjoyment through concessionaires or otherwise. 42
It is clear that the Secretary of the Interior, acting through the National Park Service, has the authority to determine what use of park resources are appropriate public uses, and what proportion of a park*s
4 3 limited resources are available for such use. The prerogative of secretarial determination was recognized by the Supreme Court in Udall v. 'Washington, Virginia and Maryland Coach Co.<
Here the task of weighing the competing uses of federal property has been delegated by Congress to the Secretary of the Interior.
The balance which he strikes will not be judicially upset unless it is arbitrary or beyond his authority.
81
•16

The Court went on to say that its inquiry was completed when it found a rational basis for the i
Where administrative control has been congressionally authorized the judicial function is exhausted once there is found some "rational basis" for the action t a k e n
Although the managing agency may allow concessionaire activities on public lands, the concessionaires are not always satisfied with those agency decisions.
Several commercial operators in the Grand Canyon challenged the overall user ceiling established by the
46
National Park Service. The 1972 allotment for commercial use was 105,000 user days, but the 1973 interim management plan set the allotment at 89,000, which was based on the level of actual use in 1972. The court dismissed the action, holding that the Department of the Interior and the National Park Service had acted within their statutory authority and upon a reasonable and rational basis in connection with their management of river running activities.
The first case specifically dealing with allocations
Wilderness public Rights Fund v. Kleppe, involving commercial allocations in the Grand Canyon. The plantiff, the Wilderness Public Rights Fund, moved for a preliminary injunction to prevent the Department of the

Interior from renewing commercial permits for more than one year pending disposition of the case. The court denied the motion since the Department of the
Interior had introduced into evidence the text of the recent three year permits for the period of 1977 to
1979.
The government then moved for summary judgment in their favor. The court ruled in favor of the government* holding that the plantiff had not proven that the
Secretary had acted arbitrarily and capricously in the adoption of the allocation formula.
A similar case to that of Wilderness Public
48
Rights Fund, is Eiseman v. Andrus. Both the plantiff and the defendant filed cross motions for summary judgment; the court granted the defendant's motion.
The court held that the interim management plan adopted by the National Park Service was not an abuse of discretion because the allocation was based on historical use of the river and the best information available. a "valid and rational" basis for allocation of user days pending completion of formal research and public hearings. The court then concluded that the "allocation of usage furthers the legitimate governmental objective of providing for the greatest possible public enjoyment

-10 of the river experience subject to ecological, environmental
The court, however, did not preclude further inquiry into the allocations currently adopted* The court pointed out that the allocation established by the interim plan was never intended to be permanent but instead was only to be effective until new research and management plans are completed. The court, however, stated that there is greater demand for concessionaire
51 services than for noncommercial trips* * but m actuality demand for non-commercial trips has increased
52 at a faster pace than demand for commercial trips.
And it is also possible that much of the demand for concessionaire services are stimulated by advertising.
The court also notes that there are a limited qualifications to run the river on private trips.
With the advent of more sophisticated equipment at lower prices and the increasing numbers of experienced
54 private river runners, this statement appears questionable.

V. Recommendations
Any equitable system designed to solve the problems of river use allocation must bet
(1) Fair to all individuals
(2) Adaptable to changing user demands
(3) Free from manipulation
(4) Simple for the applicant
(5) Efficient for river managers
One of the most widely proposed systems is the lottery* The simplest form of the lottery system is similar to a big game permit. All persons desiring a trip on a particular river apply to the managing agency for a permit® Their naraes are chosen by a random drawing until all available spaces on the river are filled® Those applications selected would then decide whether to travel the river by private or commercial trip*
A more sophisticated version of the lottery system has also been proposed® In this system everyone applies for a permit but they note on their application whether the trip will be private or commercial* At the designated date, the applications are separated according to this non-commercial/commercial, basis, and the percentage of demand for each type of
85

trip is then established* Finally, the applications are drawn randonmly according to this percentage®
For example, if the percentage is 60% non-commercial and 40% commercial, with 100 users days 60 of those days will be allocated for non-commercial use and
40 days for commercial use*
There are several advantages of the lottery system, the moat notable of which is its nonpartisan nature® The weighted lottery system, too
6
indicates the demand of the public for either private or commercial trips® The system is simple for the user® and the managing agency is no longer required to determine which is the "most" qualified among qualified private applicants.
The system would also make the unused portion of the commercial allocation available to the non-commercial sector* It is further suggested that the system would aid those using commercial services by eliminating the current monopoly situation of outfitters and thus providing competition among those outfitters* This competition, hopefully, would lead to improved services and lowrr prices®
Hie lottery system also has a number of unresolved problems* as well as apparent disadvantages® Some opponents claim that outfitters will be forced out
86
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of business by the uncertainty caused by a lottery system* Fluctuations will undoubtedly occur in the non-commercial/commercial allocations from year to year* These fluctuations will occur as the result of chance or demand, depending upon the lottery system used* If commercial services are to be adequately provided, there must be soma assurance of service from one year to the next® But it is also necessary to note that a concessionaire's permit is merely a license to operate and not a guarantee of income«
A lottery system has other drawbacks* It is time consuming and cumbersome for the managing agency®
It might also encourage each sector to increase their size, and the private sector could not compete with the advertising of the commercial sector® And unregulated competition among outfitters could possibly force small outfitters out of business®
VI. Conclusion
In the adoption of river management plans, agencies have generally looked to a previous year to establish allotment criteria for the future® As a result* commercial outfitters have received the majority of

available user days. A great increase in the demand for non-commercial trips has occurred, but many of those requests must be denied. Under the present statutes and mandates of the public trust doctrine, the issue arises as to whether governmental agencies are acting within legal authority by adoption of present river management plans» The real problems arise in the adoption of a workable management plan which meets competing interests and .requirements of private and commercial groups. Several recommendations have been offered but these proposals are not without problems, especially in the continuity of service by concessionaires. In any event, the legitimate rights of private groups seem to deserve greater recognition in the management of public lands.
23-
88

Footnotes
1
Lewis & Marsh, Problems Resulting From The
Increased Recreational Use of Rivers in the West,
River Recreation Management and Research 27, 28 (1977),
2
These ceilings are ordinarily expressed in terms of total "user days®
1
* A user day represents one person on the river for one day or a portion of a day®
3
Rationing implies that some finite number of openings has been reached and because of excess demand for these openings, some mechanism for distribution has to be implemented® Thus, rationing depends upon the validity of the carrying capacity calculations. Carrying capacity, in actuality, is a judgmental issue® Managers first define the various constraints, and researchers then must supply clear measures of the implications of alternatives in order to allow the managers to make decisions concerning the carrying capacity®
4
S_e r e. Eiseman v» Andrus^ 433 F. Supp* 1103 (D.C. Ariz.
1977)
8
5
In terms of people traversing the Canyon® the figure is even more surprising* Since non-conmercial trips tend to be longer in duration than commercial trips
(and thus consumer more ''user days"), only 3% of the total
89

number of people who are allowed to traverse the Canyon constitute non-commercial trips® generally Johnson, .Colgjradci .River Research
Program Report No* 17 (1977).
8
See Interagency Whitewater Committee Guidelines {1911)*
9
The statistics of river use do not support the central assumption of this viewpoint! that concessionaires are indespensible to promote recreational use by the public®
On two of the West's most formidable rivers, the Middle
Fork of the Salmon and the Colorado through the Grand
Canyon? river managers have been denying permits to many applicants who wish to run these rivers without the services of a concessionaire. Even if no concessionaires ran these rivers, a sizeable and increasing use would prevail®
10
The Interagency Whitewater Committee Guidelines (1977) do not define what the parameters of such an experience might be® In fact, the Grand Canyon Reports supra note 6, indicates an opposite result —- that those on non-commercial trips have a better experience® See generally* Elliott,
Commercial River Outfitting! Its Educational Role and
Responsibilities, River Recreation Management and Research
214 (1977), lis,
The point of all this is that good river trips can be run by both commercial and non-commercial parties, and so can bad river trips®" Nash* River Recreation?...History:

and Future, River Recreation Management and Research 3®6
(1977). l2
H£S.i|mis» Whitewater Rafting 61 (1975)®
13
Huser* Industry Responds to the Explosion in River
Recreation^ River Recreation Management and t
Research 38 (1977)
1 4
16 U.S.C. 551 (1977).
1 5
16 U.S.C. 497 (1977). His
( 2721.53a) (may 1976) likewise provides!
f,
The issuance of outfitter-guide permits will not establish nor set up a system of area allocation or permanence of operation which might deny use by others®"
1 6
16 U.S.C. 3 (1977).
1 ?
16 U.S.C. 20 (1977)#
1 8
16 U.S.C. 1281(a) (2.977) ®
3 9
A
16 U.S.C. 1281, 2(b)(1)(2) (B) (197?)
Pie* 1623®
2 1
16 US.C. 1131 (1977).
2 2
18 U.S.C. 1131(b)(6) (1977)•
23
The public trust concept is as old as Rosaan law, with its origins rooted in the nature of the seashore as community property® Despite this long history, and its relatively early appearance in American jurisprudence* the doctrine remains relatively undeveloped®
91

known to American law, only the public trust doctrine seems to have the breadth and substantive context which might make it useful as a tool of general application for citizens seeking to develop a comprehensive legal approach to resource management problems®" J« Sax,
The Public Trust Doctrine in Natural...Resource. Laws
Effective. Judicial Intervention, 68 ,Mjch« Rev* 473,
474 (1970)®
25
The public trust doctrine first appeared in American jurisprudence in 1392, when the Supreme Court of the United
States decided the landmark case of Illinois Central
Railroad v. Illinois, 146 U.S. 387 (1892). The Supreme
Court held that title to land under navigable waters is held in trust for the people of a state,
H so that they may enjoy the navigation of the waters, carry or. commerce over them® and have liberty of fishery therein freed, from the obstruction or interference of private parties®" j^U at
452* The Court continuedi
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 except by a transfer of property. The control of the State for the purpose of the trust can never be lost* except as to such parcels as are used in promoting the interest of the public therein* or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining»•»The State can no more
92

abdicate its trust over property in which the whole people are interested*•* than it can abdicate its police powers in the administration of government and the preservation of the peace® Id® at 453«
26
"all of the public lands of the nation are held in trust for the people of the whole country®" United States v. Trinidad Coal Company, 137 U.S. 160 (1890)®
27
Gould v. Grey lock Reservation, Commission, 215 N.E»2d
29
People ex rel® San Francisco Bay Conservation and Development Commission v« Town of Emeryville, 446 p.2d
790 (1968).
"30
Hillebrand v. Knapp, 274 N.W. 821 (1937)®
31
In re Crawford County Levee and Drainage District
No® 1® 196 N.W. 874 (1924). Other states* however, which recognize that lands under navigable waters are subject to a public trust have declined to measure governmental action by the trust standard* In Rogers v* City of Mobile,
169 So. 2d 282 (1964) p
an Alabama court refused to review agency discretion to lease submerged lands, absent fraud, corruption or bad faith® And a Ttexas court refused to grant standing to oyster fishermen complaining that an agency order was allowing shell dredgers to destroy live oyster reefs* Texas Oyster Growers Association v. Odora,
93

385 S.W.2d 899 (Tex. Civ® App* 1965)®
32
Illinois Central Railroad Co* v. Illinois, 146 U.S.?
387 (1892)«
33
Garkane power Co® v* Public Service Commission*
100 p.2d 571 (1940)*
34
Gould v. Greylock Reservation Commission* 215 N.E«2d
114, 126 (1966)•
J5
£lf. Martin v. Smith, 184 Cal. App.2d 571 (1960)
f
in which a California court held that a lease of tidelands issued by the city of Sausalito for construction of a restaurant, bar, motel, shops and other commercial purposes was "consistent with the trust upon which said lands were conveyed to the city" by the state* Another
California court found nothing improper in the lease of tidelands for construction of an armed services YMCA, noting that the facility would promote navigation, serve visting ships, and aid harbor development* People v®
City of Long Beach, 338 P*2d 177 (Cal* App® 1959).
State v® Cleveland and Pittsburg Railroad, 113 N*E»
677, 682 (1916).
37
Sierra Club v. Morton, 92 S. Ct. 1361 (19 71)•
3 8
16 U*S»C» 551 (1977)®
39
United States ?. Reeves* 39 F* Supp* 580 (W*D* Ark*
(1941)*
94

40
McMichael v. United States, 355 F*2d 283 (9th Cir* 1965).
41
Heath v. Aspen Skiing Corps, 325 F. Supp. 223
(D«C» Colo- 1971)•
42
Universal Interpretive Shuttle Corp® v» Washington
Metropolitan Area Transit Commission, 393 U.S® 186
S
187
(1968)*
4 3
16 U.S.C. 3 (1977)*
44
Udall v. Washington® Virginia and Maryland Coach
Co., 398 F.2d
765, 769 (d.c
.Cir* 1968)» cert®denied
393 U.S.
1017 (i969 ) *
4 5
Id. at 769.
46
Western River Expeditions^ Inc. v. Morton, Civil
No. C-125-73 (D® Utah, June 4
9
1973)•
47
Wilderness Public Rights Fund* v« Kleppe® No® Civ®
76-187 CFP (N.D. Cal. Dec. 16, 1976).
Eiseman v. Andrus, 433 F. Supp. 1103 (D.C. Ariz. 1977).
4Q
Mjl at 1106®
5 1
M r at 1106 -1107.
-»2
See text supra pp« 1-3®
53
Eiseman v. Andrus, 433 F. Supp® 1103, 1107 (D.C* Ariz®
1977)s
95

54
The court notes at 433 F. Supp* 1105»
The plantiffs are persons who* because of excess demand for the limited number of non-commercial permits., have been denied permits to run the River privately rather than through the services of a park concessionaire® There is no question raised as to their equipment or qualifications for such a permit*