Takings in the public trust
Part two of a three-part series
by Cat Urbigkit

On June 24 at a meeting in Lusk, the Wyoming Game and Fish Commission is slated to decide whether WG&F Department publications will refer to and advocate the use of the public trust doctrine. The issue came about as a result of the commission's review of the department's instream flow five-year plan, which advocated a need to change "the legal component" of Wyoming's instream flow program through the use of the public trust doctrine.

It's the threat to private property rights posed by this expanding legal doctrine that has members of the public concerned that it will be advanced by a state agency. The "taking" of private property is a very real threat, according to property rights experts.

According to Paul Bray of the Government Law Center at Albany Law School: "Local governments in the USA have become reluctant to exercise their powers to regulate land use because of U.S. Supreme Court decisions that certain acts of regulation constituted a taking of private property for which the private owner must be compensated. Some scholars have expressed the view that the common law PTD may protect governmental regulation of land which is in furtherance of an ecologically based real property law."

That's a possibility that could send shivers down the spines of property rights advocates.

Stuart Lieberman posed this scenario: "Imagine this. You purchase a prime piece of ocean-front property and spend a million dollars to acquire your dream. Then you throw in another $2 million for a house, dock for your yacht and a swimming pool. At last you have arrived. You have your own exclusive oceanfront getaway. Not so fast.

"You see, it is becoming more and more apparent that there is no such thing as a truly private beach in many parts of the United States of America. Blame it on an old Roman law called the public trust doctrine."

Lieberman wrote that even though a person may have a plat demonstrating ownership of a parcel of beach, they really don't have exclusive ownership.

"They may own the sand, they may be able to erect some improvements on the sand, but in most instances they do not have exclusive use and control of the wet sand," Lieberman wrote. "They have a partner. The state."

The book "Putting the public trust doctrine to work," stated that although claims of private property takings and charges of governmental interference in property rights can be expected, when acting under the authority of the PDT, state agencies "are in a strong position to defend against takings claims."

A1988 Harvard Environmental Law Review article suggested that consideration of fifth amendment takings claims "ought to be influenced by the recognition that use restrictions to protect environmentally sensitive lands are fundamentally different from other restrictions" and "the public has a legal right to the ecological integrity of lands depended upon for survival; consequently, legal interpretations of the public trust doctrine must be enhanced by ecological science, thus preserving those initial lands."

University of Michigan law professor Joseph Sax wrote: "Certainly the principle of the public trust is broader than its traditional application indicates. It may eventually be necessary to confront the question of whether certain restrictions, imposed either by courts or by other governmental agencies, constitute a taking of private property; but a great deal of needed protection for the public can be provided long before that question is reached."

Sax continued: "New needs have always generated new doctrines and, thereby, new property rights."

In a PTD roundtable in 1999, Jim Burling of the Pacific Legal Foundation noted: "The basic theme to these cases is that courts are finding new impediments and new limitations on private property rights that we did not know existed before, and some of these seem to be created out of whole cloth." Burling said, "Like it or not, judges do not necessarily see the law as something that's written in stone, and property rights are subject to this kind of evolution."

Lewis and Clark law school Professor James Huffman said he could imagine "a system that says that you own a piece of property, subject to the state's ability to change the conditions and limits of your ownership. And I can imagine you buying a piece of property on those terms, although I can't imagine you paying very much for it under those terms. That is a plausible system, but a lousy one, if we're interested in the wise use of resources. Modern public trust doctrine has moved property law in this unfortunate direction.

Huffman said, "[I]t's perverse, at best, that you take a doctrine that was designed to constrain the crown and use it to constrain liberty, which is precisely what it seems to me that we've done."

Huffman maintains that "the expansion of the doctrine and the even more dramatic ways it's been proposed to be expanded will eventually destroy the concept of private property with respect to those resources where the public trust doctrine applies."

In the end, perhaps Sax is right. He said, "Only time will reveal the appropriate limits of the public trust doctrine as a useful judicial instrument."