Open Letter to Daniel Injerd, Director, Office of Water Resources, Illinois Department of Natural Resources:

We are advised in a Public Notice from the Office of Water Resources of IDNR that Northwestern University has filed an application to construct a private student Lakefront Athletics and Recreational Complex (LARC) on approximately five acres of “disturbed dunes” along Lake Michigan, land that was created by filling in approximately 85 acres of Lake Michigan conveyed by the Illinois legislature in 1961.  Catherine Bird, the University’s archeological consultant on the LARC project, stated in her letter dated April 14, 2015, to Mark J. O’Leary of SmithGroupJJR, that the land at issue was “open water in Lake Michigan in 1962.” 

We understand from NU’s permit application that the five acres of “disturbed dunes” will be additionally filled, to accommodate the proposed building’s substructure. …

Accordingly, under the public trust doctrine recognized in Illinois and federal common law, case law, and Illinois statute, we as taxpayers and representatives of taxpayers who are beneficiaries of the public trust doctrine, state an objection to NU’s application for its LARC construction project.  It should not be permitted as proposed.

The public trust doctrine provides that dominion and sovereignty over submerged lands in Lake Michigan belong to the state where the land is found, and must be held in trust for the people. 

More than a century ago, the U.S. Supreme Court stated unequivocally that title to the bed of Lake Michigan adjoining the State of Illinois was a “title held in trust for the people of the State that they may enjoy the navigation of its waters, carry on commerce over them, and have the liberty of fishing therein free from obstruction or interference of private parties.” 

The Court further stated, “The State can no more 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 peace.”  

In that case, the Court invalidated the transfer of 1,000 acres of submerged lands in Lake Michigan to the Illinois Central Railroad.

In the years since 1892, the Illinois Supreme Court has also stated that the conveyance of land submerged in the waters of Lake Michigan to private entities such as the railroad or U.S. Steel Corporation is a breach of the public trust doctrine.

More recently, the federal district court in Chicago prohibited Loyola University from filling in 18.5 acres of Lake Michigan to enlarge its Rogers Park campus, citing the public trust doctrine. This filling of land that formerly was “open water in Lake Michigan” is precisely what NU seeks in its pending permit application, and courts have stated unequivocally that it is unlawful.

It is clear from the map and other documents that NU has submitted in support of its current application that the five acres of “disturbed dunes” area where it proposes to construct the LARC, with additional fill and subsurface structures to support it, was once open water and part of Lake Michigan.  It is filled area of former lake bottom that IDNR must protect from being “seized or used by any private interest in any way.”

In 1962, NU filled in approximately 85 acres of 152 acres of Lake Michigan bottom that the State of Illinois had conveyed to it.  IDNR must act with the legal responsibility given to it by the Illinois legislature to “jealously guard” the five acres of the shoreline of Lake Michigan that are targeted for NU’s project, as proposed. 

If IDNR does not act now to deny the permit application, as proposed, will it ever be able to halt NU in a future attempt to fill any of the remaining 67 acres of Lake Michigan bottom to which it apparently claims title?

Mr. Walsh is president of th eCentral Street Neighbors Association