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This article argues that the Court's reliance on the law of property neither creates an internal inconsistency in takings law nor necessarily leads to further destruction of natural resources. Background principles of property law, such as custom and public trust, have long provided a basis for government protection of the public's interest in certain types of land, like the barrier beach David Lucas sought to develop.

Thus, the Lucas case need not be perceived as casting a constitutional cloud over laws protecting important ecosystems like wetlands and barrier beaches. The decision may not place these resources in greater danger from property rights zealots and the courts than the resources were before Lucas. By allowing the government to rely on background principles of common law to justify regulatory action, the Supreme Court has conceptually expanded the "harmful" or "noxious uses" principle of takings jurisprudence, giving the principle new vitality. Those who view Lucas as a cataclysmic decision for environmental regulation may be in danger of reading too much into the creation of a new categorical rule based on economic value and too little into the exceptions to that rule.

The remainder of this article lays out the support for this thesis. Part II summarizes the regulatory takings doctrine and the nuisance principle and outlines both the facts of the Lucas case and the Supreme Court's decision. Part III examines the common law doctrines of custom and public trust and how, as "background principles" of the law of property, they fit within the exception to the bright line takings rule created by the Lucas Court. The analysis reveals the vitality and elasticity of these doctrines in state law, and how, rather than acting as a limit on state regulatory authority, they may enable proscriptive regulatory initiatives, such as those protecting wetlands and coastal barrier beaches. Part III concludes with a discussion of the applicability of these two common law doctrines to barrier beaches and wetlands, drawing theoretical support from the work of Carol Rose on "inherently public property."

Part IV shows how public trust and custom can defeat a takings claim and explains that this should not destabilize expectations about property rights. This article argues that these doctrines not only accord with public expectations about the use of barrier beaches and wetlands, but also help these lands to fulfill certain important societal and ecological functions thwarted by current understandings of regulatory takings doctrine. Nonetheless, a theoretical understanding of the public's superior interest in land protected by the doctrines of public trust and custom may founder on the reality of the landowner's justifiable frustration when her expectations about the use of her land are not in accord with public expectations based on obscure doctrinal principles. In fact, by infusing common law doctrines capable of evolution into the regulatory takings formula, the Lucas court has increased the opportunities for government to frustrate the expectations of private landowners. Thus, the article concludes by cautioning that over-use or misapplication of the common law doctrines of custom and public trust could jeopardize both these doctrines and the environmental laws they help support.

Publication Citation

19 Harv. Envtl. L. Rev. 1-67 (1995)