Protecting "The Wastes of the Foreshore": The Federal Navigational Servitude and Its Origins in State Public Trust Doctrine

Abstract

The federal navigational servitude provides that when the federal gov? ernment regulates tidal or navigable fresh waters in order to protect naviga? tion, it need not compensate for any loss caused to private interests in these waters. This Note considers the question of whether this takings defense should also apply when the federal government regulates waterways for con? servation purposes. It argues that the federal navigational servitude has the same common law roots as state public trust doctrines, most of which would provide a takings defense for a state's conservation-promoting action. The navigational focus of the federal navigational servitude was the result of early limits on the federal government's Commerce Clause powers, rather than limits inherent in the federal navigational servitude. Thus, where the Commerce Clause now allows conservation-promoting federal action, the fed? eral government should benefit from the same takings defense that state pub? lic trust doctrines would provide to similar state government action.