The Practicality of Private Waterways

For centuries, few have questioned the idea that waterways—streams, rivers, lakes, and oceans—are or should be “public property.” The doctrine of “public trust,” with roots in both Roman and English common law, holds that these resources should not be privately owned but rather held in trust by government for use by all. The United States Supreme Court cited this doctrine in 1892, ruling that state governments properly hold title to waterways such as lakes and rivers, “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.”1

This “public ownership,” however, is increasingly thwarting the life-serving nature of waterways as sources of drinking water, fish, and recreation. Predictably, when a resource—whether a park, an alleyway, or a pond—is owned by “everyone,” its users have less incentive to protect or improve its long-term value than they would if it were owned by an individual or a corporation. Users of “public property” tend to use the resource for short-term gain, often causing the deterioration of its long-term value—the well-known “tragedy of the commons.” This phenomenon is perhaps nowhere clearer than in the case of waterways.

“Public ownership” of waterways has led to, among other problems, harmful levels of pollution and depleted fish populations. Many waterways around the world have become so polluted that they are no longer fit for human use. In 2004, the Environmental Protection Agency reported that one-third of America’s lakes and nearly one-fourth of its rivers were under fish-consumption advisories due to polluted waters.2 In 2005, officials in China estimated that 75 percent of that nation’s lakes were contaminated with potentially toxic algal blooms caused by sewage and industrial waste.3 And the World Commission on Water has found that half the world’s rivers are either seriously polluted or running dry from irrigation and other human uses or both.4 By one estimate, the contaminated drinking water and poor sanitation that result from pollution and low water levels account for five to ten million deaths per year worldwide.5

In addition to containing harmful levels of pollution, many of the world’s waterways are being fished in a manner that is depleting fish populations and threatening with extinction fish species such as red snapper, white sturgeon, and bluefin tuna—species highly valuable to human life.6 By 2003, primarily due to fishing practices associated with public waterways, 27 percent of the world’s fisheries (zones where fish and other seafood is caught) had “collapsed”—the term used by scientists to denote fish populations that drop to 10 percent or less of their historical highs.7 In 2006, the journal Science published a study that offered a grim prediction: All of the world’s fisheries will collapse by 2048.8 Whether or not all of the world’s fisheries will collapse in a mere forty years, the data clearly show that current fishing practices are depleting supplies of many species of consumable fish. At best, at the current rate of fish depletion, many fishermen will lose their livelihoods and consumers will have fewer and fewer species from which to choose, species that will become more and more expensive.

What solutions have been proposed? Federal and state governments have attempted to remedy these problems through regulation—violating rights and creating new problems in the process. For example, twenty-five states prohibit or severely restrict the use of laundry detergents containing phosphates, substances that harm aquatic life when present in water in high quantities.9 A growing number of state and local governments—including Westchester County, New York, and Annapolis, Maryland—are enacting similar regulations on phosphate-containing fertilizers.10 These laws violate the rights of detergent and fertilizer manufacturers by precluding them from creating the products they choose to create—and they violate the rights of consumers who want to buy such products rather than more-expensive, less-effective alternatives. Further, these rights-violating prohibitions have proven impractical in achieving their purpose: Despite many such regulations having been in effect for nearly forty years,11 an estimated two-thirds of America’s bays and estuaries still contain harmful amounts of phosphates.12

Regulations regarding sewage treatment have proven similarly impractical: Since 1972, the federal government has forced water utilities to spend billions of dollars upgrading water treatment facilities, and yet, during the past four years, record numbers of beaches have closed due to pollution from sewage.13 And, for what it is worth, the EPA predicts that by 2016 American rivers will be as polluted by sewage as they were in the 1970s.14

Government efforts to address depleted fish populations have proven similarly impractical. The history of the halibut industry in Alaska is an illuminating case in point. In the 1970s, the International Pacific Halibut Commission (IPHC)—a U.S.-backed intergovernmental regulatory agency—established a five-month fishing season in public waters off the Alaskan coast with the hope of maintaining halibut populations, which had become severely depleted. But forcibly limiting the time during which fishermen could operate did little to improve the fishery’s viability: Fishermen simply worked more vigorously during the season, and the halibut population remained at historically low levels. So, in the 1980s, the IPHC attempted to remedy the problem by reducing the five-month fishing season dramatically—to as few as two days.15 During these shortened windows of opportunity, fishermen took extreme risks to maximize their catches, only to be “rewarded” onshore with the plummeting prices of a glutted market. And, in the end, the huge catches brought in by fishermen on these days were still large enough to jeopardize the halibut population.16 So, in 1995, the IPHC dropped the idea of a short fishing season and instead introduced a “catch share program,” through which it limits each fisherman’s yearly catch to a percentage of what it deems to be a “safe” overall halibut harvest. But neither has this policy helped the situation; today, after more than two decades of shifting regulations, the usable halibut population in Alaskan waters is less than in 1985.17

Although some claim that still more government regulations are required to combat the ongoing problems of pollution and depleted fish populations, any such coercive measures are in principle doomed to failure because they attempt to treat problems in the waterways while ignoring their actual cause: “public ownership.” Government force may provide a disincentive for certain behaviors, but this disincentive does not motivate the users of waterways to maintain or enhance the life-serving value of these resources. As a result, America’s waterways remain largely and significantly polluted, and fish populations, even where they are stabilizing, remain at levels insufficient to meet the growing demand for seafood.

If “public” waterways offer little incentive for users to mitigate pollution and increase fish populations, then how do waterways fare when privately owned? Although “public” waterways are overwhelmingly the norm, the few instances of private waterways that do exist demonstrate that, to the extent that their right to property is recognized and protected, the owners of these resources have a strong incentive to maintain and enhance their life-serving value.

Although nearly every state in the United States prohibits private ownership of streams, streams in a small section of Montana’s Yellowstone Valley remarkably have not been subjected to the “public trust” doctrine. In this section of Yellowstone, streams are owned by individuals who profit from their property by leasing fishing rights to sports fishermen.18 Stream owners have an incentive to keep their streams clean and well-stocked for their customers, which they accomplish by voluntarily limiting both access to their property and the grazing of livestock nearby. The owners set these limits according to their own best judgment and toward the goal of long-term profits. Their streams, which are clean and teeming with fish, are in sharp contrast to “public” streams in the United States, many of which are too polluted for swimming or fishing19 and in which populations of such freshwater species as trout and bullheads are declining.20

A similar contrast between “public” and private ownership can be seen in Scotland. Although the waterways themselves are “publicly owned,” the salmon fisheries within nontidal streams in Scotland have been privately owned for centuries.21 As is the case in Yellowstone Valley, many owners of salmon fisheries in Scotland lease fishing rights to sports fishermen as a source of income and, so that they may continue to profit long-term, protect their property against fish depletion, pollution, and other threats.22 The difference in pollution levels between the privately controlled nontidal streams and those that are open to use by all is telling: In a 1985 study, the Fisheries and Aquaculture Department of the United Nations found that more than 95 percent of privately controlled streams in Scotland were unpolluted, whereas less than 67 percent of streams open to the public were unpolluted.23 In both Yellowstone and Scotland, the owners of private waterways and fisheries have an incentive to improve and maintain their property, an incentive that users of similar “public” resources lack. The results are cleaner waters and increased fish populations.

Private ownership has proven similarly effective when it comes to maintaining and improving offshore waterways for long-term value. In the 1970s, the Mexican government granted the indigenous Seri tribe legal title to Tiburón Island and the adjacent coastline.24 The waters on one side of the island, which the Seri cannot effectively patrol and which are thus open to poachers, suffer the same plight as “publicly owned” waters elsewhere in the Gulf of California: Fish populations are largely depleted. But in Infiernillo Channel, between Tiburón and the mainland, the Seri can patrol and protect the fishery, enabling them to maintain and enhance its value. With individual members of the tribe working cooperatively to mutual profit, the Seri, reports biologist Aaron E. Hirsh, “have managed their resource for [long-term] yield rather than short-term gain, and today, Infiernillo Channel harbors the richest shellfish beds in the region.”25

A similar offshore example is that of Matinicus Island, Maine, where lobster fishermen have claimed ownership of about eighty square miles around the island. With an incentive to profit in the long term, the fishermen limit who may use the fishery and set the conditions of use.26 The fishermen’s careful management of the fishery has led to increased lobster populations, abundant lobster yields—and incomes that are almost 40 percent higher than those of lobster fishermen in “publicly owned” areas of Maine.27

In contrast to the users of “public” waterways, the owners of these private waterways have a strong incentive to keep their properties clean and well-stocked with fish, and their ownership enables them to do so.

Private waterways provide incentive to reduce pollution and increase the populations of marketable fish. But although the practicality of private ownership in these respects seems clear, would not private ownership of waterways be impractical in other respects?

Take any large river as an example: How would we possibly determine who owns it? For years, shipping companies have used it to transport goods, fishermen have made their livelihoods in its waters, landowners have extended their piers across its surface, and beaches and boat ramps have given the public recreational access to it. Which of these parties, if any, properly owns the river or some portion thereof? And even if we were able to determine the ownership of the river, would privatizing it not lead to a host of other problems? If the river were owned by one or a few or many parties, would nonowners be able to use it? If so, how? What would prevent the owner of a mill from pouring waste into his portion of a river, thereby contaminating the property of others downstream? What would stop a shipping company from building a tollgate in the middle of the channel it owns and charging all passersby for the ability to navigate their vessels upstream?

All of these concerns are legitimate—and all are answerable. Privatizing waterways is entirely practical, but to see this we must grasp the nature of property and the principle and purpose of property rights. Let us first consider the nature of property.

Man needs food, shelter, clothing, and other material values to sustain and enjoy his life. If he does not create these things himself, then he must produce some other value with which to trade grocers, builders, clothiers, and others for the things he needs. The need for the concept “property” arises from the fact that human survival depends on such value creation, that in order for an individual to make use of the values he creates, others must recognize those values as his. Property refers to that which belongs to a person by virtue of his having created it. John Locke recognized this fact when he argued that an individual’s application of effort to a natural resource gives him a claim of ownership to the products of his labor.28 Ayn Rand elaborated this point and went deeper, identifying the fact that the effort involved in value creation is not only physical but also and more fundamentally cognitive: “Any material element or resource which, in order to become of use or value to men, requires the application of human knowledge and effort, should be private property—by the right of those who apply the knowledge and effort.”29 In short, as Craig Biddle puts it, property “is the law of causality applied to production”: An individual who causes a resource to be transformed into a life-sustaining human value thereby becomes its owner.

An understanding of the nature of property enables us to properly identify that which is owned. If a hunter fells a deer with an arrow, then, given the nature of his act and its result, that deer is rightfully his; through his thought and effort, he has transformed the deer from a wild, useless creature into food for himself and his family. Similarly, if he transforms raw clay into a pot, the pot is his; through his thought and effort, mere mud has become a vessel for storing water and foodstuffs. And if he turns barren land into a fertile farm, he owns the farm; through his thought and effort, the land has become a value that sustains human life.

An understanding of the nature of property also enables us to identify that which is unowned. Until an individual (or group of individuals) exerts the thought and effort necessary to transform a resource into a human value, that resource belongs to no one. A wild deer running freely across the countryside is unowned until someone transforms it into a value. Clay deep beneath the surface remains unowned until someone extracts it for human use. Barren land remains unowned until someone cultivates it into farmland, or establishes a homestead on it, or otherwise transforms it into any of a multitude of possible human values. Until someone transforms a resource from its natural state into a life-serving value, it remains unowned, available to anyone who chooses to make use of it.

By enabling us to identify that which is owned and unowned, an understanding of the nature of property also enables us to determine the extent of ownership. Note that the hunter, through his efforts, has become the owner of the deer but not necessarily the owner of the hunting grounds. Unless the hunter transforms the hunting grounds into a new value, for instance, by improving the habitat by digging ponds and planting vegetation to water and nourish the deer, the grounds remain unowned. The hunter’s ownership extends to the deer, but not to the grounds as such. Similarly, the site from which he took the clay remains unowned unless he has done something to bestow value upon the site as such, for instance, by establishing a permanent excavation. By contrast, the farmer’s ownership extends to both the plants he grows and to the land upon which he grows them. He has transformed the land itself through his thought and effort and is thus its rightful owner.

How does all of this apply to waterways? If we take into account the nature of property, we see that waterways, in their natural, unimproved state, are unowned. As in the case of the deer hunter, a fisherman who catches wild trout in a natural stream acquires ownership of the fish he has caught, but not the stream itself. His ownership extends only to the fish because his thought and effort extended only to catching the fish. Similarly, barge owners who navigate a river or hikers who fill their bottles with creek water or farmers who dump waste into a stream do not, by virtue of simply using these waterways, acquire ownership of them. Merely using a waterway in its natural state does not constitute a claim of ownership over any part of that resource. Until someone somehow improves the waterway—transforming it from its wild natural state into a new source of human values—it remains unowned and should be recognized as such.

What, then, would constitute acquiring ownership of a waterway? Just as various exertions of mental and physical effort constitute acquiring ownership on land, so various efforts could constitute acquiring ownership over a waterway or portion thereof. The following are a few examples to indicate the causal connection between effort and property in this regard:

• A man (or group of men) who creates a waterway, such as a canal or lake, is thereby the owner of that waterway.
• Those who dredge a waterway in order to make it navigable by larger vessels rightfully own the section of the waterway they have improved.
• Those who construct wharves, piers, and ports to provide greater access to the waterway are properly the owners of the portion of waterway immediately surrounding the structures they have built.
• A miller who establishes a water-powered mill alongside a river owns the portion of the river necessary to power and operate his mill.
• The builder of an offshore oil platform owns the surrounding waterway necessary to run his operation.
• The builder of a beach for purposes of human recreation owns a portion of the adjacent waterway consonant with that use.
• A fisherman who, to increase the fish population, takes measures to improve the habitat within a fishery is the legitimate owner of that portion of the waterway he has improved.
• Those who construct permanent underwater enclosures in which to raise and harvest fish (known as “fish farms” or “aquaculture”) transform the corresponding portion of the waterway into a new value and are thus the rightful owners of that portion.

One who engages in an effort such as these creates a human value that did not exist in nature. Thus, he owns that value—and others morally must acknowledge and respect the fact of his ownership.

To the extent that others forcibly prevent a man from using his property, it ceases to serve its purpose as a means to further his life. Because man needs property in order to live, we need a means by which to protect each individual’s freedom to keep, use, and dispose of his property while living in the midst of others. This is the purpose of the principle of property rights, which holds that because a person rightfully owns that which he produces (or purchases with that which he produces), others may not deny him the freedom to use or dispose of it as he sees fit.

For example, if a hunter slays a deer, then the deer is rightfully his, and the principle of property rights morally prohibits others from interfering with his use or disposal of it. They may not steal his deer or damage it or impose via threat of force any conditions on its use. Similarly, if a farmer cultivates a plot of land, then the plot is rightfully his, and the principle of property rights morally prohibits others from taking his crops or trampling them or otherwise interfering with his right to use his property according to his judgment.

This principle applies equally to property in waterways. It morally prohibits others from interfering with an owner’s right to use his portion of the waterway as he chooses. Others may not steal his fish or pollute his stream or impose via threat of force any conditions on his use of his portion of the waterway. Any such action would prevent the owner from using his property as he sees fit and is thus prohibited by the principle of property rights.

Applying this principle—recognizing the nature of property and the context of a given situation—is the means by which to determine who, if anyone, owns a waterway (or portion thereof) and the means by which to settle any dispute that might arise with regard to waterways. Although the types of disputes that can arise in regard to waterways may appear to be more difficult to settle than those that arise in regard to land, the principle of property rights is as applicable to the former as to the latter. To grasp why this is so, we must bear in mind the following corollaries of the principle.

One’s ownership of a resource extends only so far as one’s improvement.

The nature and extent of one’s ownership over a resource corresponds precisely to the nature and extent of the transformation one has caused. Just as the hunter, through his tracking and slaying, acquired a deer but not the hunting grounds, so a farmer, through his sowing and reaping, owns the fields he has transformed, but no more. His property does not extend without limits in any direction, neither to the center of the earth nor endlessly into space. His ownership extends only so far as is necessary to enable him to farm: He owns precisely enough of the sky above his fields and enough of the ground below them to sow and reap unhindered. If a mining company extracts minerals from beneath his farm, causing no interference to the farmer’s use of his property in the process, then those minerals and the tunnels necessary to extract them are the rightful property of the mining company by virtue of the thought and effort it—and not the farmer—exerted to extract them.30

Similarly, the boundaries an owner properly claims for his property in a waterway correspond to his creation and the corresponding parameters of use. A fisherman who creates a lobster fishery offshore does not own the entire ocean, nor all of the earth below, nor all of the sky above, nor even the surface of the water directly above his fishery. His property consists of the area of seafloor and the area of water he has improved, any equipment or structures he has added to the area, the lobsters he is raising, and no more.31 Others may establish fisheries in nearby parcels of sea. Others may drill beneath his fishery or fly overhead or travel the waterway above his fishery so long as they do not harm his portion by, for instance, dumping toxic chemicals into the water or creating noise or turbulence that negatively (and demonstrably) impacts the lobster population underneath. Nor may they prevent him from harvesting the lobsters below, for instance by anchoring over the fishery such that he cannot access it: His right to his property on the seafloor necessitates that he be free to use the water surface above.

Similarly, his right to the use of his fishery necessitates that the path leading to it remain unobstructed. For instance, an oil company may not build a platform that completely blocks the only channel the fisherman can use to reach his fishery, thus depriving the fisherman of the use of his property. Another corollary comes into play in such cases.

One may not deprive an owner of the preexisting use of his property.

The principle of “first come, first served”32 holds that, in establishing a new property, one may not deprive another of the preexisting use of his property. In the above example, the lobster fisherman established his property first—and that property is a value to him only insofar as he is able to access it, in this case by traveling through the channel. Thus the oil company may not block the channel, as that would deprive the fisherman of the right to use his property. The lobster fisherman established his property first; thus he has a right to continue to use it in accordance with the purpose for which he established it. By contrast, the oil company, because it has yet to transform the channel into a value, has no property in the channel and thus cannot claim a violation of its rights when the fisherman insists that he be allowed to travel unhindered through the channel. The oil company must find a new site for its platform or construct the platform such that the fisherman and others who use the channel may pass or negotiate some other mutually agreeable solution. So long as the fisherman continues to use his property, he retains ownership, and other men may not block his access to it. If, however, he abandons his property, that changes the situation.

This brings us to a third corollary.

Ownership is an ongoing responsibility.

An individual comes to own a natural resource such as a waterway by transforming it into a human value. In order to retain ownership of that resource, the owner must maintain it as a human value. If he ceases to harvest lobsters from the fishery or allows the fishery to return to its natural state or fails to transform the fishery into a different value, such as, say, a fishing platform, then he abandons the resource, relinquishes his right to it, and thus opens it to use by all unless or until someone else exerts the thought and effort necessary to convert it into property.

Precisely what amount of time needs to pass and what criteria need to be met in order to demonstrate that a given property has been abandoned is a matter for theoreticians in the philosophy of law. However, there is clearly a range within which any solution lies.

For instance, suppose a landowner builds a new pier through an oyster bed that he believes to be unowned—an oyster bed that a fisherman later claims has been his for decades. On the one hand, if the fisherman demarcated the oyster bed with buoys and visited it on a regular basis to harvest oysters or to improve their habitat, then his ownership is clearly established and the landowner should have recognized and yielded to that fact. On the other hand, if the fisherman had not marked the oyster bed and has not visited it in forty years, then he has clearly abandoned the property and cannot properly claim that the landowner violated his rights by building a pier there.

Determining the duration of nonuse (and other relevant indicators) that constitute abandonment in a given situation requires an assessment of the full context at hand and reference to the purpose of property rights, which is to make possible one’s use of one’s creations.

* * *

As our discussion to this point indicates, the principle of property rights applies to waterways just as it applies to resources on land. Although disputes may arise in waterways, they can be resolved by reference to this principle, the nature of property, and the context in which the dispute occurs. To further clarify this, let us consider a more complicated situation, one involving multiple parties.

Suppose a company has carved a deep channel through a riverbed, thus enabling large ships to travel farther upstream than otherwise would have been possible. In order to profit from and maintain its creation, the company constructs a tollbooth and charges all those who would pass through its channel. The owners of large ships gladly pay the tolls, delighted that they can now navigate their vessels upstream. However, others claim that the company has intruded on their right to use the river: A man claims that the company, in removing pilings placed there fifty years ago by his father, has destroyed the beginnings of his family’s fishing platform; a group of fishermen claims that its right to fish at the location of the channel is being violated by the large-ship traffic; the owner of a small fish farm a few hundred yards from the channel claims that the sound and fuel emissions from the large ships are disturbing his property; and the owners of small boats insist that the company has no right to charge them to navigate to their properties upstream when they have been able to do so for decades. Is there any validity to these claims?

The man who accuses the company of destroying his family’s property by removing the pilings his father built is mistaken: Although the piles driven into the riverbed were once the legitimate property of the man’s family, this property has been abandoned—the family has not taken action to build upon or otherwise use the piles for fifty years. The fishermen who claim that their right to fish at the channel has been violated are also mistaken: Unless they somehow improved the waterway at that location, these fishermen have no property there and thus no grounds on which to claim a violation of their rights. The owner of the fish farm, however, has improved a portion of the waterway and would have grounds to claim a rights violation if the ship traffic is demonstrably harmful to his property. In such a scenario the channel company morally must take action to eliminate or reduce the cause of the harm or else come to an agreement with the owner of the fish farm, perhaps paying him for damages to his property.

As for the owners of the small boats who claim that the tollbooth is infringing on their right to navigate the waterway unhindered: They are correct on two counts. First, the company’s ownership of the river does not extend to the surface of the river; its improvement, and thus its property, is confined to the channel it carved in the riverbed, through which large ships pass. Shallow vessels, such as barges, speedboats, and sailboats, do not use this property. Although the nature of the company’s improvement justifies its use of the surface, it does not give it ownership over the surface, much less a right to charge small vessels for passage thereon. Second, the principle of “first come, first served” applies here. Property owners upstream have for years used the river to access their property with small boats. Their ability to navigate the waterway is a large part of what gives their property its value. By obstructing the passage of small boats, the company would deprive owners upstream of the use of their preexisting property. The company morally must be free to use the surface to accept tolls from the ships that actually pass through its channel, and for this reason the small vessels may not hinder its ability to profit from its creation, by, for instance, blocking the channel. But the smaller vessels must also be free to use the surface in order to use their property, and for this reason the company may not hinder them by charging them tolls.

Of course, disputes involving waterways can be far more complex than the situations we have discussed. Our goal has not been to exhaustively address the intricacies of every conceivable dispute but rather to indicate that all such disputes can, in principle, be resolved when the property in question is private and property rights are protected.

Let us now return to the issues with which we began—pollution and depleted fisheries—and consider how the principle of property rights applies.

Just as one morally may not dump toxic chemicals onto one’s yard if they will seep over to and poison a neighbor’s garden, so one may not foul a waterway if doing so will demonstrably thwart the ability of property owners in and along the waterway to use and enjoy the values they have created or earned. If an individual (or a corporation) dumps toxins into a river, thereby killing fish stocks or vegetation, or making the water unsafe for human or livestock consumption or for human recreation, he violates the rights of property owners in or along the waterway. Even in unowned waters, one may pollute only if and to the extent that one can do so without (demonstrably) damaging another’s property. But, given water’s free-flowing nature, the ability of individuals and corporations to pollute a waterway without violating another’s property rights is quite limited. Those who do harm another’s property—whether on land or in waterways—risk prosecution and punishment by a government dedicated to protecting its citizens’ rights.

As to the issue of depleted fisheries: Where unowned waters are concerned, the principle of property rights does not morally prohibit the taking of “too many” fish. Until someone comes to own these waters, any hindrance of fishermen to use them would constitute an infringement of their rights. But private ownership does something that “public ownership” does not: It enables men to profit from the values they create in the waterways and thus gives them incentive, as seen in earlier examples, to establish and maintain healthy fisheries containing an abundance of fish.

For example, a group of fishermen competing for limited supplies of trout in an unowned lake would have a strong incentive to cooperate such that, as a group, they could lay claim to it and thus be in a position to increase their individual fishing takes. By forming a corporation and making improvements to the lake—such as stocking the lake or improving the underwater habitat—these fishermen could lay claim to it and manage it in order to create a healthy fishery from which they could profit, either by selling fish to consumers or by leasing fishing rights to other fishermen. Although the principle of property rights does not prohibit these fishermen from depleting the fish supply in their own lake, it gives them no incentive to do so and it limits the extent of such destruction to their lake. As with pollution, those who demonstrably harm another’s property—by, for instance, harvesting fish without permission—risk prosecution and punishment by a government dedicated to protecting rights.

“Public” waterways are inherently impractical: By denying men the ability to establish property in waterways, the “public trust” doctrine reduces their incentive to maintain and improve waterways. By contrast, private waterways are entirely practical: By recognizing the creation of and right to use values in the waterways, private property and the principle of property rights enable men to profit by creating, maintaining, and enhancing values in the waterways.

Those concerned with the cleanliness of water, the health and viability of fish populations, and, more importantly, each man’s right to use his creations, must advocate the privatization of waterways and the protection of property rights therein. If the government—through a legislature that passed laws protecting value creation in the waterways and a judiciary that applied the principle of property rights when adjudicating disputes—recognized and protected private ownership in the waterways, then men could pursue value-creation therein, confident that they would have legal recourse should another violate their right to do so. The only alternative to such a system is the kind of system we already have: a legal and political framework that violates individual rights and quashes the incentive for men to maintain and improve the value of waterways. If we care about the health and viability of waterways, we must advocate their privatization.

About Alan Germani

Alan Germani is an associate editor of The Objective Standard.

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About J. Brian Phillips

J. Brian Phillips owns a contracting company based in Houston, Texas. He helped defeat zoning ordinances in Houston in 1993 and in Hobbs, New Mexico in 2007, and has actively fought other violations of property rights on the local level. His articles on property rights and related issues have appeared in The Freeman, Kiwanis Magazine, the Houston Chronicle, and the Orange County Register. He blogs on property rights at txpropertyrights.blogspot.com.

View all articles by J. Brian Phillips →