issues and then show how they tie into the facts that are laid the key issues here as presented by the city are the st is whether or not the creation of the obama presidential center in jackson hawks is authorized by the museum act and the nd and i believe more important issue is if it is authorized by the act or whether or not it death and pos what the requirements of the pups in this particular case the city has taken two positions both of which we strongly disagree with the st position that it takes is that the only thing that has to be done with respect to jackson pollock given that it was quote never on submerged land never submerged there is to show that there is sufficient statutory authorization  for this thing and that there is no independent requirement that you know on that all of the controls are to be regarded as simply pools and the nd position they say is that's not is wrong then there is a kind of a trust duty involved but the trust today is one which says that quote unquote if there is any benefit whatsoever that the city derives from this particular transaction when does not have to look at the costs associated with this particular office and we think that the following situations if the st of these propositions is indeed correct then it's not just that you can give away the one thousand acres of jackson park that is going to be devoted to the scent but you could give all of jackson pollock to the obama foundation empty to any other kind of so that position is so extreme that it cannot be correct because what it means is that the public trust doctrine is essentially a dead letter even though it's real i will say later it is something which isn't sent xilinx designed to override any subsequent conve understand that they would have standing in illinois state courts but illinois state courts have their own thing and we're bound by article three so explain to me what my siblings of the cognized will interest is if you look at the past cases they said each and every citizen has an undivided interest a particular property that has been dedicated to the past and it turns out that it then says this under illinois law but it's a it's not the only way that the public trust stock will have any vitality any meaning if it turns out that ordinary individuals are allowed to enforce it so the position that we have taken which was taken in the lucas case is that given that undivided interest given the fact that there's a public trust in the eyes of all there is under the th amendment a procedural due process sufficient to bring well let's say you you would be able as a citizen taxpayer to vitiate rights under the public trust doctrine in illinois state court and to the extent they are using a public trust doct of as a vehicle for making your procedural due process you know as the vehicle for saying that you have a property right and you know it's illegal pending i mean it looks a lot to me like lou it seems to me like this undifferentiated interests that illinois state courts can enforce well i mean that is undifferentiated i think there's no reason to say that it's not but it's also the kind of issue that has to be enforced  following sense it's like a charitable situation and whenever you're dealing with charitable trust or dealing with derivative actions the point is that any given person is allowed to bring that action for the benefit of everybody else and i don't think that given the fact that they're standing both in the sensually means that for any particular kind of transaction that you have other was always going to be some kind of benefit that you can identify and if you ignore all the costs that are associated with the operation that test is essentially a rubber stamp which says there will never well for example that the the best way i think to do this is to say st of all as a general matter the fiduciary duty board's duties only kick in those particular situations where there's some c v serious deviation from what would be the appropriate  we have tried to outline in great detail all the irregularities that were associated with the way in which the zoning board delegated we believe the authority to the obama foundation to make this better kind of decision secondly it turns out that if you look at the pepsi case which is the key way to look at peculiar world and so what happens is the courts both in illinois and everywhere else then introduce these five pesky factis to see what kinds of deviations that you could make from the uncompromising state would be permi and there was a long line of cases before which dealt with this on the most notable of the supreme court cases is a case called reichl derfner i think i pronounced it correctly in which the issue was whether or not when you had public trust land supposed to be held free case what they did is they developed and this was done strict in mind illinois court a series of five test we think that in fact each and every one of those tests violated in this particular case and if you start to go down in the st of these things the starts to happened is these two thousand and fifteen resolution when it was originally put into place announced that what it was going to do was to create a lease of ninety nine years with maneuverable terms when the lucas decision came down it became clear in that case the judge down decided that a lease was tantamount to an outright transfer of a property interest therefore or by the public trust doctrine so the city went back to the boards again and what it did is it transferred this lease agreement into a use agreement but there was no difference whatsoever in any of the substantive terms of the formal east and the use agreement they are both authentic also this is just a question of words in other situations there have been many other kinds of arrangements that the city has made in the park the parliament is made they use different terminology they have different ways but in this particular case the key point is that this is should be treated as though it were an outright transfer of the interest the ten dollars the only issue that is retained is a conditional  is that they diminish an area has to be small relative to the entire and there is a very interesting question of how you calculate both the numerator and the denominator in this particular what the city says it's a mere three point four percent of the are but they were one thousand dollars points to be eight percent but get me in addition in order to complete this project you're going to have to widen lake shore drive going south and stony island they have a new one to the west and went to the east of this that's going to take up another nine point then  you also going to rip up most of cornell avenue and that's going to take out about another five to six a if you look at the total denominator that's a very misleading because it turns out that old a half of jackson park where about half particular case is essentially taking away probably ninety to ninety five percent of the value judged by the number of cars that have to use lakeshore drive and so and so what it is is this is a mass transfer in terms of the total value of the issue it's the high valued uses that are done the city claims well other roadway is busy and it's noisy it is certainly busy it is not that noisy but what's happening is you have then completely disrupted all of the previous uses that word exist answer any question i have a question mr yes yes so it's not quite that the pesky factors say that the change has to be negligible it says that it has to be negligible and compared to the greater convenience to be afforded those terms of it and none of the other cases including petty require that the government relocate roads we have tried to estimate that the value of the land here perfect and it was probably close to two hundred million dollars being given away and as it turns  shifting when you're talking about the roads and whether they should be kept in the price it's not so much about the public trust act and that's about the cost of the project no no the public trust doctrine requires that you make an assessment of the assess and the minuses of the project and the project can court here anymore into the business judgment rule if what you decided to do was to widen cornell drive it to change a stoplight or something of the sort this is something which completely destroys the essence and the overall character it will surely require that the improper delegation which in this case this surely was because the entire decision wasn't made by the city council what they said is they would defer to the sound judgment quote unquote of the obama foundation to give an idea of how little control that the city had over this east of lake shore drive with massive traffic disruption i mean if it turns out that the public trust auckland simply says if the city authorizes this and nothing else matters then clearly we lose but in this particular case the petty cases you can't do this if you look at the last paragraph it says that we always have to compromise between keeping the pristine conditions that are associated with this and making some adjustments at the margin to allow for other things if one does a simple comparison by way of foundation is nothing like the situations we have putting a firehouse here extending a road they are putting a bridge in this particular case and all but soldier field a soldier field was a different case in time where they did not reroute at all anything associated with lake shore drive they did not cut down any trees what they did is they made a financial arrangement which essentially changed the internal structure and  a magical injury is a sham or a disability can you think of any other kid in which the common law right was for one that is held in common by the public as opposed to a common law right of property or contra this case there is obviously a commitment by the parties to the forum as well and the resolution of the state law issue as planned moment is extremely clear and you know beyond that and because the foundations core mission is to build and operate the o p c ride these benefits to the public the foundations private interests is nearly incidental to the  which it begins by saying in passing and so those are not the factors or that he's the issues that can show under illinois law where controls is simply whether there is presidential center is a forever one c three that a charitable organization similar to the foundations and institutions that run the other museums in chicago part of it is committed by the use nuns maintaining hours consistent with other museums in public parks it has the park land open during the same hours that chicago are just or parts are open it works with n good as paper records and there will be access to those records at the museum so it is a very very humbling purpose and as a result of that  mean we would certainly take the position that it wouldn't matter if the actual commitment of property for a large area but it isn't and the important thing here is that the use simply as a car with grass and trees for the cultural and recreational purposes the parts provide and we will now have a par with other heart says namely the cultural draft reports and as things that don't go to the question of the legality of the transfer under illinois law you know i do see them as something separate but i am wondering what effect if any they might have on this on the  as illustrations about the way in which the overall sense so one cannot treat this is though it's a kind of ad hoc importation from another state it turns out that it was created here nd i would like to say that there is if you look at illinois central no category whatsoever known as formally submerged land with a standard of liability different from that from never submerged the passage that was quoted on page four hundred and fifty two dollars of the illinois central case does not stand for the subject to and the alien ability then there's a nd class of land which you can take out and sell privately in parcels and that is just plain old ordinary land there is no distinction that was made in that case the words formally submersed nowhere in that opinion essentially if one thinks about the logic of a public trust not the only sensible way in which to interpret this is one of the ways in which you're going to start to deal with land going forward and if land is not submerged today the fact that it may have been submerged two hundred years ago is not going to make the slightest bit of difference what judge lucas what judge doris said in the lucas case was that there was a form of heightened scrutiny that applied to a quote basically to never submerged lands we submit that that is the same test with lands if they were dry if you look at kathy itself this is clearly a case in which the lands were never submerged if you then take the next stage forward on this and you look at some of the earlier cases including the mill how cases that had to do with building an elevated train and that too was subject to a standard public trust doctrine in which the analysis was there was insufficient consideration given for the deal it was a comparable farce and so therefore it should be set aside alas i would like to say that i think the council has misconstrued the museum act with respect to this transaction it covers museums it would cover ancillary facilities there is no way that one could read the museum it authorization to say that it's going to cover an athletic stilling on the one hand or a public library on the other hand those a completely separate and different kinds of organisations the statute which says one does not authorize the and finally with respect to the report that one had an analysis the dynamics a completely different you do not have to wreck any road you do not have to cut down any trees you don't have to do anything of the kind of destructive nature with respect to jackson park in when you go to washington park you would have to expand the roads a little bit and perhaps make some alterations but by law if this case were built in schedule as was originally designed by the way in washington we would not have bothered to bring suit because the changes would have been so the important thing to understand is that the social benefits that exist with respect to the city at large and so forth come from having an obama presidential center in the city in fact when the university of chicago did its reports it said washington park was a better location because the traffic jams getting at the jackson park by the lake a far greater given the public transportation that's available in washington park and so and now there's also land right next to washington park the suitable size dimension a to hold this which would be the drive so one of the things that becomes clearly relevant on to all of these statues is can you avoid needless environmental harm by kicking an alternative site can you mitigate that particular home or rather minimize th illinois court to synthesise cases elsewhere they were not lifted from not mentioned in nowhere referred to in the two wisconsin cases which would just use this illustration to say that if you build something inside one of the lakes in wisconsin it is not necessarily a