Unintended Consequences: Lucas, the Public Trust Doctrine, and the Erosion of Private Property Rights Under the Takings Clause

Abstract

This Note considers the relationship between the public trust doctrine and private property rights under the Takings Clause. Traditionally, the public trust doctrine vests authority in state governments to protect navigable waterways and related lands. But in recent years, state governments and state courts have begun to use the doctrine to achieve broader environmental ends. While increased environmental protection at the state level serves vital public interests, it is not an unambiguous good. Under current takings analysis, the public trust doctrine constitutes one of several affirmative defenses to just compensation liability; where state governments invoke the public trust doctrine, they are not required to pay just compensation to property owners, even for complete takings. The expanded public trust doctrine can therefore frustrate constitutionally rooted private property rights. This Note proffers some recommendations to resolve the tension between states' interest in environmental protection and private property owners' constitutional guarantee of just compensation. Under a codification and declaration regime, states can continue to expand their public trust doctrines while at the same time providing property owners more meaningful protections. Normal 0 false false false EN-US X-NONE X-NONE /* Style Definitions */ table.MsoNormalTable {mso-style-name:Table Normal; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin-top:0in; mso-para-margin-right:0in; mso-para-margin-bottom:10.0pt; mso-para-margin-left:0in; line-height:115%; mso-pagination:widow-orphan; font-size:11.0pt; font-family:Calibri,sans-serif; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin;}