With summer coming and the pandemic receding, Chicagoans are returning to their beloved lakefront. But there, as for almost two centuries, they will find battles over Chicago’s greatest natural resource.
The most recent is another lawsuit seeking to block the Obama Presidential Center in Jackson Park. Last year, opponents lost in federal court. A new federal suit argues that various federal permits needed for construction were improperly issued.
Other controversies involve Lake Shore Drive. A Wisconsin developer is pushing a $20 billion megaproject called One Central, to be “decked over” the Metra rail tracks along the drive between the Field Museum and McCormick Place. On the North Side, city planners want to overhaul Lake Shore Drive. Their plans call for filling in more of the lake, shifting beaches, building a sturdier sea wall, expanding the drive to include bus lanes and constructing new bike and pedestrian paths.
One response to such controversies has been floated by the advocacy group Preservation Chicago: turn the lakefront into a national park. The idea has some obvious appeal.
City politicians have long been happy to use the lakefront for practically anything other than an open green space for the public. In the 1850s, they let the Illinois Central Railroad locate its tracks and terminal there, so by the 1920s the lakefront was basically one massive rail yard. They wanted to put the Field Museum, a library and even City Hall in Grant Park, until that idea was blocked by Montgomery Ward.
More recently, they rebuilt Soldier Field for the Chicago Bears, and almost succeeded in letting George Lucas build a self-referential museum near McCormick Place. If the lakefront were run by the National Park Service, with its strong mandate to preserve natural resources and maintain park facilities, the constant threat of new projects would probably be reduced.
Another possible attraction is budgetary. Turning the lakefront over to the federal government would transfer the operating costs to federal taxpayers. But many national parks have been authorized to charge admission fees to partially fund a serious problem of deferred maintenance. Do Chicagoans want to pay for the privilege of using lakefront parks or beaches?
Other considerations also suggest that the proposal requires careful thought. For one, giving control of the lakefront to the National Park Service bureaucracy might go too far in locking in the status quo. Legislation creating a Lakefront National Park could be written to preserve existing things not ordinarily found in a national park — such as museums, softball diamonds and golf courses. But the lakefront’s history has involved continual evolution. What if the Museum of Science and Industry or Shedd Aquarium needed to expand? The park service does not look kindly on expanding existing structures in national parks. And creating a national park would divest local planners of final authority over any revisions to Lake Shore Drive and associated parks, on both sides of town.
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There are also some substantial legal reasons to worry about turning the lakefront over to the National Park Service.
The two legal doctrines used to greatest effect by citizens resisting proposals to pour concrete on the lakefront have been the public trust doctrine and the public dedication doctrine. The public trust doctrine was born on the lakefront, with a famous U.S. Supreme Court decision in 1892 allowing Illinois to repeal the grant of 1,000 acres in the lake to the Illinois Central. The public dedication doctrine was used by Montgomery Ward and others to prevent the city from putting buildings in Grant Park.
These are both state law doctrines, so they do not apply to the federal government. Turning the lakefront over to the National Park Service would effectively strip the citizens of Chicago of the two legal weapons they have wielded to try to thwart proposals for lakefront development projects. Perhaps federal authorities — Congress, ultimately — would turn a deaf ear to the entreaties of politicians and developers. But there would clearly be a risk of amendments to the national park legislation, authorizing new projects. And in that event, the local citizenry would have been disarmed from doing anything about it.
Finally, serious thought should be given to the democratic implications of turning Chicago’s most treasured asset over to a Washington bureaucracy. Yes, there has been constant controversy about the lakefront — whether it should be used to promote commerce, to preserve the property values of the elite residents enjoying lake views, or as a place of refuge and recreation for the public. The fights have not always come out the same way.
But they have been Chicago’s fights. The people have argued, protested, finagled and sued, and, in the end, created the most spectacular waterfront in the nation, perhaps the world. That the process has been messy, and some bad outcomes reached, should not obscure that self-government has produced something truly remarkable. Chicagoans should think long and hard before putting the lakefront’s fate into someone else’s hands.
Joseph D. Kearney is dean and professor of law at Marquette University in Milwaukee. Thomas W. Merrill is Charles Evans Hughes Professor of Law at Columbia University in New York City. Their book, “Lakefront: Public Trust and Private Rights in Chicago,” is published by Cornell University Press.
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