Is the public trust doctrine a threat to private property? Is it a vital, evolving common law doctrine? Or a metastasizing source of governmental authority over private land? The Federalist Society’s Environmental Law and Property Rights Practice Group took up these questions in a panel Thursday at the Society’s National Lawyers Convention in Washington, D.C. The remainder of this post summarizes the highlights of the session, interspersed with some of my own commentary.

Leading off, Lewis & Clark Law School Dean Jim Huffman noted that the public trust doctrine, as initially conceived, was very limited. As developed under Roman law and later English law, the public trust only applied to very limited areas – navigable waters and submerged lands under the waters – and only protected a very limited set of uses, such as fishing, navigation and bathing. Government actions could not limit the public’s access to such areas for such uses, nor could the rights to such uses on these lands be privatized. As initially conceived it was a doctrine designed to prevent a despotic state from limiting the public’s liberties in the public’s resources.

In more recent years, however, environmental activists have sought to use the doctrine to control land-use – in effect using a doctrine designed to limit government power over private liberties to expand government power over private lands. By expanding the public trust doctrine to more lands and more uses, the doctrine has the potential to authorize land-use restrictions without triggering the Fifth Amendment. As Rhode Island Special Assistant Attorney General Michael Rubin commented, if land is covered by the public trust doctrine, it is by definition not within the protection of the Fifth Amendment’s takings clause. To claim that land is within the public trust then it cannot be taken, as it already belongs to the “public,” and the takings clause is irrelevant. According to Rubin, the existence of public ownership in some submerged lands – such as the land below open water – is undisputed. The real questions are how far such ownership extends, and what happens when land is converted from private land into public land, such as when private lands become submerged when coastlines shift over time. According to Rubin, the slow erosion of land due to shifting tides can well result in the shift of title from private to “public” hands by operation of law (yet should not occur due to a sudden “lurch” by state courts to redefine private rights).

Attorney Shawn Gunnarson of White & Case noted that property owners’ concerns about the operation of the doctrine are not purely theoretical. In McQueen v. South Acarolina Department of Health and Environmental Control (a case Gunnarson litigated), the South Carolina Supreme Court recently held that the public trust doctrine provides a categorical defense to Fifth Amendment takings claims. Although Sam McQueen’s property was rendered economically worthless by the government’s refusal to grant permits to develop to lots in North Myrtle Beach, and would therefore constitute a “total taking” for which compensation was required, there was no taking because the tidal wetlands on McQueen’s lots were within the public trust, even though all of the surrounding properties were already developed. In effect, the South Carolina Supreme Court expanded the public trust doctrine to cover unsubmerged lands and thereby allowed the state to evade its constitutional obligation to compensate McQueen for effectively taking his land. According to Gunnarson, this case demonstrates the threat posed by an expansive interpretation of the public trust doctrine to private property.

John Echeverria of the Georgetown Environmental Law and Policy Institute (subbing for Robert F. Kennedy Jr. who begged off) suggested there are two important aspects to the public trust doctrine. One aspect of the public trust doctrine suggests that the government has both substantive and procedural duties to protect the resources covered by the public trust. This is a problematic formulation, Echeverria suggests, as it lends itself to judicial activism. The other aspect of the doctrine is that it limits the scope of private property. This aspect of the doctrine is unproblematic, Echeverria argued, that fits comfortably within current takings doctrine insofar as it helps define the contours of private property under state law. It is a common law doctrine and, therefore, evolves over time. Thus, the doctrine could limit property rights in the present or future in ways that it did not limit private rights in the past. McQueen should not be a controversial case, Echeverria argued, as it was a “pedestrian” application of the public trust doctrine (a point seconded by Rubin given the nature of the marsh grasses growing on McQueen’s land). Nor would it be particularly controversial for the doctrine to continue to evolve and expand to cover additional environmental resources that are not easily amenable to private ownership, including air and wildlife.

The Justice Department’s Jeffrey Clark noted that most of the debate over the public trust doctrine has been a debate within the left over how best to expand regulatory control over private land. Whereas Joseph Sax called for using the public trust doctrine in the courts to defend – if not actually impose – land use controls, Richard Lazarus suggested democratically adopted land-use controls would provide more lasting environmental protections. Both assume environmental protection is best advanced by controlling land-use, a presumption that persists today. As framed by some academics today, Clark noted, the public trust doctrine potentially embraces any and all environmental resources in which the public claims a subjective interest, even if purely aesthetic or visceral. Also, Clark noted, while the contours of property rights may well change over time, it is not legitimate to engineer this process to produce predetermined regulatory ends. The common law may evolve, but state governments cannot simply redefine preexisting property rights by legislative fiat.

In comments, Huffman agreed that public trust resources are beyond the scope of the takings clause, but defining what is public and what is private “is the whole ball game.” Applying the public trust doctrine to, say, air and wildlife would have the potential of expanding it over all private land. At the same time, there is no reason to assume that certain resources, such as water or submerged lands, are by their very nature not amenable to private ownership. Expanding the public trust doctrine, as encouraged by some environmentalists and academics, effectively narrows the scope of private property and private ordering. Although done in the name of the "public," it transfers power to the government. "Public" properties, today, are political properties, which explains quite a bit about how they are managed.