Myth 10: Marine Conservation Agreements create conflicts with existing rights held by native peoples, the public and private entities.
Fact 10: While there are several existing rights to be aware of, fewer conflicts occur between Marine Conservation Agreements and existing rights than occur between other private uses of the ocean and existing rights.
Marine Conservation Agreements (MCAs) often support many of the goals of native peoples, the public and private entities in ocean and coastal areas because MCAs are for non-profit purposes that improve environmental conditions for all to enjoy. Private commercial, residential and recreational entities, however, have used lands and resources lying within ocean and coastal waters for centuries, often for purposes that degrade the environment. In many cases, these private uses have also fully excluded native peoples, the public, and private individuals from the areas of their operations.
Actions undertaken through MCAs are usually compatible with and in many situations improve the rights of native peoples, the public and private individuals, so there is little reason why private conservation organizations should have fewer opportunities than private commercial, residential and recreational entities simply because there are real or perceived conflicts. Having established this, conservation organizations should always attempt to maximize collaboration and compatibility with groups that have existing rights.
- Native peoples' rights: Native peoples (such as Native American Indians, Eskimos, and Native Hawaiians) may have rights and privileges to marine lands and resources that other public and private entities do not have. It is vital to understand if such rights exist to lands and resources targeted for conservation. In most cases, acquisition or management of rights through some form of MCA should not (and legally cannot) affect the rights of native peoples, unless the acquisition or management is made directly through the native peoples themselves. Otherwise, conservation organizations may hold perfectly legal leases or deeds to areas, but the rights of native peoples to fish, hunt, and gather (among other possible rights) may continue to exist on the sites. The rights of native peoples can be complicated and vary from location to location and from group to group. Many of the rights may be determined through treaties, tradition and court determinations. If such rights exist, it will be important to work with the relevant groups to determine common goals for the lands and resources and if the conservation activities of the private organization can co-exist with the rights of the native peoples. Ultimately, conservation goals of private organizations may serve to improve the lands and resources that native peoples value and use.
- Public rights: The general public may also have rights to lands and resources lying below the high tide line. In the United States, these public rights stem from the public trust doctrine, which traditionally reserved the public rights of fishing, fowling, and navigation. However, each state in the U.S. has interpreted and applied the public trust doctrine somewhat differently. As a result, the exact rights afforded the public are state-specific, but can include activities such as fishing, fowling, navigation, public access, public recreation, commerce, environmental protection, and water quality. Similar to the rights of native peoples, the rights of the public to lands and resources lying below the high water line may exist regardless of whether the site is otherwise used by a private entity. If this is the case, private organizations should evaluate if they can meet their conservation objectives on sites given the public rights that continue to exist there. If they cannot, organizations should then determine: 1) if they will be more successful at other sites; 2) if they want to attempt to exclude the public from exercising their rights on the sites; or 3) if they want to use Alternative conservation strategies. While exclusion of public rights is possible in many situations (it is often done for private commercial operations), it can be controversial and complicated. As such, limited or full exclusion of the public should be carefully considered. As with the rights of native peoples, the conservation goals of private organizations may serve to improve the lands and resources that the public uses. For more information, a training course is available on the public trust doctrine.
- Private rights: There is often a presumption by private entities and individuals that they hold inherent rights to lands and resources lying below the high tide line. However, if the private entities or individuals are not adjacent upland owners, or lessees or owners of intertidal or subtidal lands and resources, then there are usually no or extremely limited private rights to ocean and coastal lands and resources. For example, claims by private entities that they have the right to lease public submerged lands for aquaculture or moorage purposes are often unfounded. These claims may be caused by long-held beliefs about the proper use and purpose of submerged lands as opposed to existing private rights. Adjacent upland owners can be the exception. In many states, and possibly some countries outside of the U.S., adjacent upland owners may hold littoral rights to coastal areas. Littoral rights are state and country-specific, but often include rights to wharf out, harvest or cultivate shellfish, and to access the water via navigation. Private organizations seeking to enter into MCAs should determine if nearby landowners have littoral rights that may be incompatible with their conservation objectives. If possible, organizations should work cooperatively with adjacent landowners to determine and fulfill mutual goals for the areas.