George Lucas wants to replace a parking lot with a museum. It would go on Chicago's lakefront, between the Chicago Bears' stadium and a huge multi-use building that hosts trade shows, and a short walk from three legendary museums named for and funded by giants of capitalism. It's across a harbor from what used to be an airport, which the previous mayor literally seized in the dark of night. The mayor wants it there; City Council wants it there; the Park District wants it there; the legislature wants it there. A 2014 Tribune poll suggests more people want it there than don't (although the plurality doesn't care).
And unless the lawsuit against it takes an unexpected turn, it won't go there.
That's weird, right? A small advocacy group can prevent the redevelopment of a parking lot, typically a bete noir of urbanists and environmentalists, into a museum that would be spitting distance from one of the most famous groupings of museums in the world. And a lot of rich, powerful people want it there. And this is Chicago.
It is weird, because the law is weird, and the process through which we came to have this law weighing in on this plan was weird. It easily could have been quite different, had a handful of people—influential, and not disinterested—not changed its path at a few critical, unexpected points.
And that path starts a long, long time ago in a kingdom not too far away.
Episode I: The Public-Private Partnership Awakens
Despite America's acrimonious split from England, the fledgling country borrowed many aspects of English law. One of those aspects was how America governed its navigable waterways. In essence, the king was the owner of navigable waterways, but as a fiduciary for the public, with the purpose of allowing free navigation.
Due to a quirk in English common law, public stewardship of the Great Lakes (which would not have been considered navigable in England, but obviously served that purpose in America) was disputed for some time, but eventually courts came around to the understanding that states possessed the submerged land under the Great Lakes in order to promote public interests.
The turning point—or at least the first one—came in 1892, with the Illinois Central Railroad Company v. Illinois Supreme Court decision, a rebuke to (what some might call) a raw deal that may sound eerily familiar. In the early 1850s, the city entered into what we'd think of today as a public-private partnership: The railroad built a breakwater to protect Michigan Avenue and Lake Park (now Grant Park), creating a recreational lagoon in the process. In exchange, it got a 300-foot-wide right-of-way to run tracks over the breakfront to Randolph Street, near the mouth of the Chicago River.
Timothy Gilfoyle, historian and author of Millennium Park, calls it a "Faustian bargain," because the area between Randolph Street and the river, the terminus of the railroad line, built up with terminals and warehouses taking advantage of it, and the right-of-way was eventually expanded to 1,300 feet at Randolph Street.
An even greater attempt at a public-private partnership followed. The Lake Front Act of 1869 transferred a large share of lakefront from the state to the Illinois Central for the purpose of building an outer harbor. The balance between public and private struck by the deal will be familiar, for better or worse: The railroad would have to pay seven percent of its income on the property to the state, which would regulate dockage rates.
And—stop me if you've seen this tactic before—the consortium of railroads going in on the deal would have to pay $800,000 into the city's park fund.
And stop me if you've heard the reaction, too: Governor Palmer said the market value was over three times the amount set to buy off the city. But the legislature overrode his veto, clearing the way for the harbor.
But it never happened. The project got tied up in the courts long enough for political winds to shift against it, and for the 1871 Great Fire and a recession to delay economic need for it. Charges that the railroad had won the legislative victory through corruption, certainly plausible in the culture of Springfield but not confirmed, undermined the plan. In 1873, the legislature repealed the bill with a near-unanimous vote in both houses. So the matter got tabled until it could get even more complicated.
In 1881, after the city and economy had recovered and rail traffic was beginning to push the capabilities of the lakefront track, the railroad attempted again to expand its infrastructure on the disputed lakefront land; this time, the Army ceased its work until the War Department decided whether it would "injuriously affect its usefulness in the interest in navigation." Now the feds were a party to the mess, joining the railroad, the city, and the state in an increasingly tangled, still-undecided legal morass.
It wouldn't be settled until over a decade later, in the 1892 Supreme Court decision Illinois Central Railroad vs. Illinois, which finally, finally established the public trust doctrine, meaning that the navigable waters were held in trust by the state. Justice Stephen Johnson Field delivered the opinion of a slim majority.
Episode II. Attack of the SCOTUS
"Justice Field was the quintessential Jacksonian Democrat, who believed in rugged individualism, robust market competition, the yeoman farmer, and all that stuff. And was intensely mistrustful of corporations, and public grants of prerogatives to big companies. He thought this was an attempt to use government to suppress the little man," says Thomas Merrill, a law professor at Columbia University. Merrill, along with Marquette Law dean Joseph Kearney, has authored three articles on the development of the public trust doctrine, the public dedication doctrine (we'll get to that in a bit), and how they evolved in the context of cases involving Chicago lakefront land from Illinois Central Railroad to Montgomery Ward to the creation of Millennium Park. (They're great, and, even if law review articles aren't your taste, rich in the always-tangled motives of Chicago and Illinois history.)
"Justice Field views [the railroad case] through his ideological lens, and sees this big railroad company," Merrill says. "He viewed the Illinois Central as this big, octopus-like corporation trying to shut everybody else out."
Which is not to say Justice Field was generally in favor of broad government controls—quite the opposite. Ian Millheiser, at the liberal outlet ThinkProgress, argues that "the cause of Field's life" was "neutering the government's power to enact economic and business regulations," naming him one of the five worst Supreme Court justices of all time. Libertarians, on the other hand, love Field's work. This piece by Damon Root in the libertarian magazine Reason explains why, and gets at the heart of Justice Field's influential opinion in Illinois Central Railroad.
Years before the Illinois case, Field wrote the dissent in the 1873 Slaughterhouse case that is now one of the most important dissents in the court's history, more influential on later law than many majority opinions. In that case, the state of Louisiana granted a 25-year monopoly to a slaughterhouse, requiring New Orleans-area butchers to do their slaughtering in a single location—centralizing it to control the foul pollution created by the city's many slaughterhouses—and to pay a fee to do so. It was actually much like Chicago's deal with the railroad. A government that couldn't afford critical economic infrastructure on its own entered into a public-private partnership, under plausible but unsubstantiated charges of corruption, that contracted out the work and paid for it through fees.
Justice Field dissented on the grounds of the Fourteenth Amendment. "He asserted that the [privileges and immunities] clause had revolutionized the constitutional system by giving the federal government and—most importantly—the federal courts the authority to protect all fundamental rights from state interference," writes Michael A. Ross. Later the Court would come around to Field's dissent, paving the way, as Damon Root explains, for decisions "to further expand the rights protected against state violation."
Field's majority opinion in Illinois Central Railroad was about preventing the state from disposing of the land to a monopoly, not about extending the powers of the state. And it certainly wasn't an anti-capitalist decision. "Field did not think that submerged land should remain frozen in its original condition," Merrill and Kearney write. "He was all in favor of isolated grants of lands for wharves and docks. What he opposed was what he imagined to be the conferral of a monopoly over the Chicago harbor on a private corporation. His public trust doctrine was designed to preserve access to the lake for commercial vessels at competitive prices, not to preserve Lake Park or the shoreline from further economic development." (Emphasis mine.)
And so he unloaded on the state in his opinion:
The state can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties, except in the instance of parcels mentioned for the improvement of the navigation and use of the waters, or when parcels can be disposed of without impairment of the public interest in what remains, than it can abdicate its police powers in the administration of government and the preservation of the peace.
This is the case that Judge John Darrah, in rejecting the attempt to dismiss the Friends of the Parks's lawsuit in March of last year, calls "the seminal opinion on this issue."
And there are two critical points to this passage, which Darrah quoted that opinion. First, navigable waters and the soils under them. The Lucas Museum, of course, would not be on a navigable waterway nor on the soil under it. But the land used to be the soil under a navigable waterway, so the new, infilled land passed on to the state, still governed as a public trust.
Second, entirely under the use and control of private parties. Especially that word entirely. At first glance, it may seem absurd that a professional football team can have a stadium on public land, while something comparatively refined like a museum is being kept off it. But Soldier Field is owned by the park district; the Bears only moved in in 1971, 47 years after it was built; the team rents the stadium for $5.7 million a year (which adjusts for inflation over time); the most recent lease was one-third the length of the proposed Lucas Museum lease; the Bears only use it for part of the year, mostly for games and practices but with a limited number of additional days spelled out in the lease. During the rest of the year, it gets used for everything from Beyonce concerts to teen job fairs.
It's not a park, but it is a park facility, and a useful one in a city that's having trouble finding space for its immense number of big musical events. Meanwhile, as Judge Darrah emphasizes, the Memorandum of Understanding about the Lucas Museum of Narrative Art says that the "LMNA will have the exclusive right to occupy, use, maintain, manage, and control the Museum Building and the Museum Site."
"This language," Darrah writes, "could be reasonably construed that the parties intend any future operating agreement will give LMNA exclusive control over the land." The Park District would still be leasing the land to LMNA, not selling it, but the amount of control the MOU describes runs up against the opinion in Illinois Central Railroad. Plus the lease would run 99 years. The Bears are renting for a generation; the Lucas Museum, for more than a lifetime.
Fine, but then how did we end up with three world-famous museums on the lakefront?
Episode III. The Phantom Mogul
Basically, no one tried to use the public trust doctrine to stop it. At the time, the public dedication doctrine seemed like the most powerful tool to challenge lakefront building. That's the one invoking the determination that what would become Grant Park was a "Public Ground—A Common to Remain Open, Clear, and Free of Any Building, or Other Obstruction Whatsoever," from Randolph to 11th Street. That's the one that Montgomery Ward would use to keep it that way, fighting a multi-front battle over 20 years, leading to four state Supreme Court decisions that have governed its use ever since. It's secondary to the importance of the public trust doctrine in terms of the Lucas Museum, but its rhetorical, political, and aesthetic ideals, as contemporary Chicagoans have inherited them in their views of the city's lakefront, are undeniably important.
Yet Ward's battle was not always internally consistent, and not necessarily done without considerable self-interest. He made no effort to oppose the construction of the Art Institute, completed in 1893, despite having filed his first complaint in 1890 enjoining the city against construction in the park. (Probably not coincidentally, that was the same year Ward finished his company's skyscraper on Michigan between Madison and Washington.) The construction of the Art Institute was fitfully opposed by other Michigan Avenue property owners, while Ward actually served as a governing member as early as 1888.
His crusade actually began against what might have been, for Ward, more abrasive uses of the park—a temporary wigwam for the Democratic National Convention, a circus, a bicycle track. It wasn't until the beginning of the new century that Ward decided to throw down against the construction of the Field Museum and a public library funded by the estate of railroad mogul John Crerar. In this case, Ward went up against both the local elite and the public, somewhat like the Friends of the Parks has done today. And he won. The library ended up just west of Michigan Avenue; it's now the Chicago Cultural Center. The Field Museum, and later the Shedd Aquarium and the Adler Planetarium, ended up just south of 11th Street, just outside the reach of the public dedication doctrine.
Why did Ward go from staying out of the brief Art Institute spat to throwing his weight against a library and museum? He told the Tribune that he was okay with the museum, but believed the South Park Commission would go much further, saying that it had nineteen structures planned for the area. He even offered to accept the construction of the Field Museum as long as they stopped there, but the commissioners refused to negotiate.
Had the South Park Commission continued to build in Grant Park, it ran the risk of interfering with Ward's aesthetics, real estate interests, or both. Ward was, of course, a property owner on Michigan Avenue. Merrill and Kearney argue that Ward may have been something of a naturalist, who told a reporter after a European vacation that the city should imitate the Continent and "give us beautiful fountains, pleasant walks and green lawns where tired humanity may disport at will, unhampered by any restriction whatsoever."
But this happened to coincide with a lack of restrictions for his views, and subsequently for his property values. And his interest in keeping the park forever clear and free is bookended by his ownership of property on it.
"He's viewed as a secular saint, but he starts litigating against all these projects in Grant Park as soon as becomes this major real estate owner, and then as soon as he sells off the property, he just stops," Merrill says. "He's very selective in terms of what he does and doesn't challenge."
It's not without some historical irony that the mixed motives of one controlling mogul are being invoked to prevent the mixed motives of another. But Ward's legacy, as a legal matter, is tangential to the Lucas Museum, as its planned site lies outside of Grant Park. More important for its future is the public trust doctrine, which, perhaps, could have been used against the construction of the Museum Campus. But at the time, Merrill and Kearney write, "a well-informed observer, considering the way the two doctrines had been applied on the Chicago lakefront up to, say, 1912, would likely conclude that the public dedication doctrine was quite powerful, whereas the public trust doctrine was relatively weak."
And the latter would remain so. "As the twentieth century advanced, the public trust doctrine remained relatively impotent," they write. "The Illinois courts had little trouble approving projects to build a large water filtration plant on landfill in the lake and a massive convention center on landfill just south of Grant Park and the Field Museum."
In fact, they argue that the public trust doctrine doesn't cease to be impotent until 1970, until another Chicago case, Paepcke v. Public Building Commission of Chicago, in which the city tried, and ultimately succeeded, to build schools within Washington and Douglas parks. And as with Illinois Central Railroad, the timing was critical in the context of political opinion.
Episode IV. Return of the Public Trust Doctrine
Though the Illinois Supreme Court dismissed the Paepcke lawsuit, it did so in such a way that strengthened the public trust doctrine. "Overruling prior decisions, it held that any taxpayer was entitled to sue to enforce the public trust," Merrill and Kearney write. It's Paepcke that gives Friends of the Parks standing to block the Lucas Museum in the first place.
The decision cited a now-seminal article written in 1969 by a University of Michigan law professor named Joseph Sax—a graduate of the University of Chicago law school— arguing for a greatly expanded public trust doctrine (grounded, in part, on Illinois Central).
Though it’s not a particularly well written article, Merrill says, it landed in green fields: "It's had this unbelievably powerful influence, because, I guess, the vision he portrayed of the public trust doctrine as this potentially much broader doctrine that gives the courts the authority to review these proposed transfers of ownership, or changes in use of things like parks and wilderness areas, was seized upon by the environmental movement."
The Illinois Supreme Court got in early on Sax's revolution, citing Illinois Central, Bliss v. Ward (one of the Montgomery Ward decisions), and Sax's article high up in Paepcke.
Sax shows up again six years later in 1976 in another crucial case, People Ex Rel. Scott v. Chicago Park District. This was another long, winding case reminiscent of Illinois Central. Way back in 1963, the Illinois legislature passed a bill that allowed the state to sell almost 200 acres of submerged land to U.S. Steel on the far south side, far from the aesthetically contested downtown lakefront, to expand the plant. A man named Albert Droste tried to sue; he was represented by Calvin Sawyier, a partner at the powerful Winston & Strawn law firm, a future executive director of the Metropolitan Planning Commission who had previously tried to stop the construction of McCormick Place, and who would be the lawyer for the plaintiffs in Paepcke. But Droste would lose the case; before Paepcke, he didn't have standing.
Still, he got the plan tied up in the courts until 1967, and U.S. Steel didn't get around to taking advantage of the authorization until 1973. At that point Illinois had a different governor, and more importantly, a different attorney general, William Scott—operating in a new era of environmental consciousness and willing to file suit to halt the project.
"[Scott] was a Republican, and wanted to run for the Senate—I think he had his eyeballs on the 1980 Senate race—he, sort of like Nixon, was courting the environmentalist vote, he filed all these lawsuits against Milwaukee for polluting the lake with sewage overflows," Merrill says.
Then he set his sights on the U.S. Steel expansion, which had already fended off the 1967 lawsuit. Merrill says, “Scott comes in and files this lawsuit saying that it violates the public trust doctrine, you can't landfill the lake for this private corporation. He was joined by Governor Walker, a Democrat, who was positioning himself as an environmental champion. So the attorney general and governor are both opposed to this thing that's been approved by the state legislature and supported by the city Democrats [and labor unions]. And the Illinois Supreme Court agrees. In 1976 they basically invalidate the state statute that authorizes the landfilling for the expansion of the steel mill."
In the Scott decision, "That's the one case where the Illinois Supreme Court has done something truly dramatic in the name of the public trust doctrine," Merrill says.
And this is the first thing the decision has to say about the public trust doctrine:
Any discussion of the public trust doctrine in Illinois must begin with Illinois Central Railroad Co. v. Illinois… which has been described as "The Lodestar in American Public Trust Law." (Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471, 489 (1970).)
Later they kick it back to Sax again:
"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 parties."
From this, they lay out a conclusion that's resonant for the Lucas Museum (emphasis mine):
In order to preserve meaning and vitality in the public trust doctrine, when a grant of submerged land beneath waters of Lake Michigan is proposed under the circumstances here, the public purpose to be served cannot be only incidental and remote. The claimed benefit here to the public through additional employment and economic improvement is too indirect, intangible and elusive to satisfy the requirement of a public purpose.
And in doing so, the court explained away the existence of the water filtration plant and McCormick Place—which the court viewed as largely beneficial to the public—while addressing what it viewed as the sole exception of giving away previously submerged land to private owners. That one exception, Moloney v. Kirk, dates back to 1896, when the city extended Lake Shore Drive north of Ohio Street, creating 93 acres of land reclaimed from the lake, which was sold in order to fund the extension. Creation of a public road "was the main purpose of the act," the decision found, "but, in order to facilitate the work, it was proper to defray the cost of the work in the same act." The public use of the filtration plant is self-evident; McCormick Place may seem to be a stretch, but the gist of the decision allowing it was described in a later appellate court decision (emphasis mine):
The court held that property of a municipal corporation or political subdivision not restricted or dedicated to a particular use was subject to the will of the legislature. The planned facility was in the public interest and had been approved by the proper authorities. Therefore, no violation of the public trust over submerged lands had occurred.
Unlike McCormick Place, the Lucas Museum, of course, would be dedicated to a particular use; this is probably the biggest obstacle to its construction.
Episode V. Revenge of the Paepcke Decision
U.S. Steel may have been a big bad industrial corporation trying to expand its production during the flourishing of the environmental movement, but the genteel Jesuits at Loyola ran into the increasingly strengthened public trust doctrine when, in 1988, they tried to fill about 20 acres of Lake Michigan for erosion control. Like basically any college campus and Loyola itself, the addition to its campus would have been open to the public. They promised to expand a neighboring park, and add a beach and a walkway on an easement granted to the Park District. The university did plan to build a "soccer field, running track, a softball field, and a fitness center" on what was obviously public land, but that land was at the bottom of Lake Michigan.
"How it is handled," Harold Henderson wrote in the Reader at the time, "will set a precedent for the future treatment of the best thing about Chicago."
The project was approved by the legislature, signed into contract with the city and Park District, and favored by the Tribune and Crain’s. But then a watchdog group, the Lake Michigan Federation, filed a suit that argued that the Army Corps of Engineers hadn't sufficiently vetted the environmental aspects of the expansion—a non-trivial concern, given that Northwestern's lakefill expansion in the 1960s was blamed for erosion to the south (and still is). The case was handled by a federal district judge (like the Lucas Museum case), Marvin Aspen, who was perhaps more insulated from influence by an establishment that largely favored the project. Aspen drew a strict line on what had looked like a borderline case:
Applying these criteria [in Illinois Central Railroad, Moloney v. Kirk, Paepcke, and Scott] to the legislative grant of the lakebed to Loyola, it is apparent that the transfer violates the public trust doctrine. First, while the project has some aspects which are beneficial to the public, the primary purpose of the grant is to satisfy a private interest. Loyola sought and received the grant in order to satisfy its desire for a larger campus. The improvement of Hartigan Park Beach, erosion protection and other measures may benefit the public, but these benefits are only incidental to the primary and private goal of enlarging the Loyola campus. While such improvements may have made the project more palatable to Illinois legislators, the inescapable truth is that the lakebed property will be sacrificed to satisfy Loyola's private needs. Under the public trust doctrine, such a sacrifice cannot be tolerated.
Not only does the challenged legislation give away public trust property to satisfy a private interest, but it also constitutes an attempt to relinquish state power over this property. Upon completion of the project, Loyola will become the owner of 18.5 acres of land which previously belonged to the state. Accordingly, the state will relinquish its control over the and its corresponding ability to safeguard the interests of the public as to this land.
It's really a remarkable decision. Aspen upholds the public's right to the submerged land under Lake Michigan, off a then-private shoreline, over the access it would get to a new, public beach. The court ruled that Loyola’s argument that the lakefill would allow the public to enjoy the lake more was “seriously flawed,” because the public already “has unrestricted access to the submerged lands”—legally unrestricted, sure, but awfully restricted considering it is submerged.
One could plausibly make an argument that adding a beach would improve access to the lake in the manner that the public actually uses it, and that the legislature was acting to do so on behalf of the public. That didn't matter to Aspen: "We find that the legislative determination that the lakefill would serve the public is no obstacle to our conclusion that the grant was in breach of the public trust."
The Loyola decision comes up in Judge Darrah's March 2015 Lucas Museum opinion as well, quoting a damning passage:
Three basic principles can be distilled from this body of public trust case law. First, courts should be critical of attempts by the state to surrender valuable public resources to a private entity…. Second, the public trust is violated when the primary purpose of a legislative grant is to benefit a private interest…. Finally, any attempt by the state to relinquish its power over a public resource should be invalidated under the doctrine.
It sets up yet another immense hurdle for the Lucas Museum to clear.
Episode VI. A New Hope?
The majesty of the law took a long, complex journey to get to this robust interpretation of the public trust doctrine; the result is a wall of interpretation that doesn't leave much to slip a museum through. But maybe there's a bit of daylight.
Stephen Patton, the city's corporation counsel, wrote an opinion piece for the Tribune in January making its case. Darrah seemingly dispatched a lot of it in his March opinion, at least enough to let the case continue. But this argument is compelling:
Simply because the proposed museum site was formerly "submerged lake bed land" does not mean the state of Illinois is either its owner or "exclusive trustee." In fact, the Illinois General Assembly transferred title to this and other lakefront property to the Park District's predecessor in 1903 and specifically authorized the Park District to contract with private organizations to construct, operate and maintain museums on this and other parkland starting in 1911.
That is why 11 museums currently occupy sites on Park District land without violating the public trust or any other legal doctrine. This currently includes on formerly submerged lake bed: the Field Museum, the Adler Planetarium, the Art Institute and the Shedd Aquarium, and their numerous recent additions.
Judge Darrah addresses this as well, but it's tricky.
Patton is correct that the Park District was authorized to allow the construction of museums on parkland in 1911, but the reasons behind it are a bit of a mess. In 1903, the state passed a Museum Act that allowed for museums in parks, but it "limited the privilege to museums located in a public park on the first day of July, 1903" because it was meant to (and did) apply only to the Field Museum, which had begun construction that year.
In 1911, the legislature realized that giving the Field Museum special treatment was probably not constitutional, and changed it to give "the corporate authorities of park districts power to erect and maintain museums within any park, and to permit the directors of trustees of any museum [emphasis added] to erect the same in any park." The governor agreed, urging the legislature to change the law so that the Field Museum's offer "not be allowed to elapse through a defect in the law."
The plaintiffs in the Lucas Museum lawsuit contend that, despite the law reading "any" museum, "the legislature did not intend to give the Park District such broad authority." The city, of course, contends that it did.
Darrah's response is clipped: "When statutory language 'has a plain and unambiguous meaning with regard to the particular dispute in the case,' that meaning controls and the court's 'inquiry must cease.'" Any seems awfully plain and unambiguous … but generally speaking, the plain meaning rule does not prevent the court from examining the original legislative intent. As Justice Holmes writes in United States v. American Trucking Association, “when aid to the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on ‘superficial examination.’” At any rate, it's not enough for Darrah to dismiss the count—he goes right back to the public trust doctrine—but it bears watching.
Second, the Seventh Circuit Court of Appeals could agree with the city's recent filing that the case doesn't belong in federal court, something that Merrill expressed surprise at. But an expert told the Tribune that it was a long shot.
Finally, perhaps Judge Darrah, or whoever the case eventually ends up in front of, could decide that the legal precedents have gone too far. Some of the earlier decisions in the case law suggest more deference to the legislature, especially compared to the Loyola decision. In Moloney v. Kirk, the court writes that "the people… have spoken through their representatives, who were clothed by them with full power to act. If the legislation was unwise or detrimental to the best interest of the state, the people cannot complain, because they alone are to blame in selecting men to represent them who were unfit to discharge the duties with which they were clothed."
It still limits what the legislature can do—"so long as the legislation does not conflict with the organic law of the state"—but it's a far sight from the Loyola ruling: "We find that the legislative determination that the lakefill would serve the public is no obstacle to our conclusion that the grant was in breach of the public trust."
Not all states use the public trust doctrine in this way, according to Merrill; others place more trust in the legislature than we do.
"New York, which I think has a more sensible doctrine, which I think could be adopted in Illinois with good effect, basically focuses on things like parks," he says. "A park is subject to public trust, which means it can't be changed to a non-park use without the express authorization of the state legislature. So the courts don't say it can never be changed, they just say, we want to see the legislature very clearly authorizing this before we allow some city to turn a park into a private real estate development.
"That version, if applied in Illinois—it's never been adopted in Illinois—would nicely apply to something like the Lucas Museum. You could debate whether or not turning the lakefront was or was not consistent with the public trust. And the legislature would have to authorize it, which of course they've already done. That would end that case."
The state’s case law has evolved from an archconservative judge keeping the lakefront open, clear, and free for unrestrained capitalism, to a federal judge having the absolute power to potentially quash the replacement of a parking lot by a museum. But it is also in keeping with Justice Field's overarching vision in 1892—that it was the job of the federal courts to protect citizens from their state governments. Somehow, the winding road came full circle …
Episode VII. Common Sense Strikes Back
… in which case, there may be no way out, and the best historical precedent would be the fate of the Field Museum. In 1907, the president of the museum's board of trustees, Harlow N. Higinbotham, told the Tribune that "Mr. [Marshall] Field provided for [the new Field Museum building] in his will, but to secure Mr. Field's bequest, we had to obtain a free site for the building [by 1912]. There is just one available site in the city, and that has been given to us. Now our rights are attacked. If Mr. Ward is successful it will mean, in effect, the ruin of what otherwise ultimately will be the greatest museum in the world." (Coincidentally, that’s how some feel now about the Lucas Museum. “As Mellody Hobson’s recent comments indicate, Chicago will lose the museum and its tremendous economic benefits if this lawsuit is not resolved,” the mayor said in a recent statement.)
Ward was, of course, successful in blocking the museum. With time running out on Field's bequest, the trustees settled on its current location. Hardly "the ruin of what otherwise ultimately will be the greatest museum in the world," the new location became the cornerstone of a new plan for the reclamation of the lake south of Grant Park, extending its parkland south to Jackson Park, on shoreline controlled by the railroad at the heart of this narrative. Plans for the Shedd Aquarium immediately followed; several years afterward, Holabird & Roche won the contract to design Soldier Field.
"The settlement [acquiring riparian rights from the Illinois Central] is worth all the opposition assert[s] the railroad company is getting just to have the Field Museum downtown. This is the biggest thing that has happened in Chicago since the World's Fair," Mayor Harrison told the Tribune in 1912. "It eventually will make an unbroken line of lake front from Sixty-seventh street on the south to the turn of Sheridan road on the north."
It's not that the museum's trustees didn't fight; they did, until their remedies were all but exhausted. If there is a thread to this history that is neither weird nor inconsistent, it is that the rich and powerful want what they want, where they want, when they want it, and no alternatives exist—until they do. The compromise was forced, but it was a compromise. Cast out of Grant Park, the Field Museum was able to stand on its own, as the city evolved around it.