Should Lucas v. South Carolina Coastal Council Protect Where the Wild Things Are? Of Beavers, Bob-o-Links, and other Things that Go Bump in the Night

Abstract

This Article suggests that Lucas v. South Carolina Coastal was primarily an attempt by the Court to simplify the judicial task of resolving what Robert Gordon refers to as the hard cases involving land use disputes, and that, with respect to laws protecting wildlife, the Court did not succeed in its quest. The article briefly discusses the effect of wildlife protection regulations on private land use, and the equity issues raised by their idiosyncratic application. The article shows how English understandings about the rights and duties of landowners influenced colonial expectations about similar matters at the time of the founding of this country. It also shows how early colonial law harbored a deep-seated hostility toward wilderness and explains how some English property doctrines were changed in this country to facilitate cultivation of wild (or waste) lands - the very lands that are prized today as wildlife habitat. The Article traces the common law roots of modern wildlife laws and demonstrates how the common law doctrines of state wildlife trust and public trust have protected wildlife in this country because of their importance as communal resources, and discusses the theoretical aspects of these doctrines.