TIDELANDS

The Public Trust Tidelands have been subject to numerous court decisions. In 1857, the Mississippi Supreme Court held in Martin v. O’Brien that “the shores of the sea below high-water mark belong to the state as trustee for the public….” In Cinque Bambini Partnership v. State, the Court declared “title to all lands naturally subject to tidal influence, inland to today’s mean high-water mark, is held by the State of Mississippi in trust.” In Phillips Petroleum Company v. Mississippi the United States Supreme Court affirmed the Cinque Bambini decision that the State of Mississippi owns in trust for the public all land subject to the ebb and flow of the tide, up to the line of mean high tide, regardless of the navigability of the waters over them.

In 1989, the Mississippi Legislature enacted the Public Trust Tidelands Act. Mindful of the many and sometimes conflicting public purposes of the trust, the Legislature declared it “to be the public policy of this state to favor the preservation of the natural state of the public trust tidelands and their ecosystems and to prevent the despoliation and destruction of them, except where a specific alteration of specific public trust tidelands would serve a higher public interest in compliance with the public purposes of the public trust in which such tidelands are held.” Justice Robertson noted in Cinque Bambini “the public purposes to which these lands and waters placed in the public trust may be devoted are not static.” The public purposes include navigation and transportation; commerce; fishing; bathing, swimming, and other recreational activities; development of mineral resources; environmental protection and preservation; and the enhancement of aquatic, avian, marine life and sea agriculture.

Because the Mississippi Constitution prohibits donating State-owned lands to individuals or private corporations, for profit corporate and gaming use of Public Trust Tidelands require a tidelands lease. The Secretary of State is authorized to “rent or lease surface lands, tidelands or submerged lands owned or controlled by the State of Mississippi lying in or adjacent to the Mississippi Sound or Gulf of Mexico or streams emptying therein.” The leasing authority is discretionary; the Secretary “may lease or rent surface lands, tidelands or submerged lands....”

Under this discretionary authority, the Secretary may decide a particular proposed alteration of Public Trust Tidelands does not serve a higher public interest in compliance with the purposes of the trust and decline a lease application. If leasing is allowed, the Secretary sets the initial rent which is statutorily adjusted by an appraisal or the Consumer Price Index on a regular basis.

Rents collected by the Secretary from Tidelands leases are deposited in the Public Trust Tidelands Fund. Additionally, assessments paid by on-shore gaming operations are deposited into the Public Trust Assessment Fund. Each year the Secretary transfers these Funds to the Mississippi Department of Marine Resources following their appropriation by the Legislature for “new and extra programs of tidelands management, such as conservation, reclamation, preservation, acquisition, education or the enhancement of public access to the public trust tidelands or public improvement projects as they relate to such lands.” Since 1997, the Secretary has transferred more than $187 million to MDMR. These Funds have allowed the three coast counties and included cities to build public piers and boat launches, and to improve and build marinas and harbors. These Funds have also allowed MDMR to establish and monitor fishing reefs in the Mississippi Sound; to acquire environmentally important habitat for Mississippi’s Coastal Preserves; and to conduct important scientific research on subjects like fisheries stocks, red tide, and submerged seagrasses.

The importance of the Public Trust Tidelands cannot be overstated. Our office is focused on balancing their preservation and economic development to benefit future generations of Mississippians. Maintaining a “One Coast” approach is key to ensuring that happens.