Of Constitutions and Cultures: The British Right to Roam and American Property Law

• Date: 01 October 2014

44 ELR 10898 ENVIRONMENTAL LAW REPORTER 10-2014

Of Constitutions

and Cultures:

The British Right

to Roam and

American

Property Law

by Jess Kyle

Jess Kyle is a J.D. Candidate, University of Maryland

Francis King Carey School of Law, 2015. is Article won

Honorable Mention in the 2013-2014 Beveridge & Diamond

Constitutional Environmental Law Writing Competition.

Summary

In 2000, England enacted the Countryside and Rights

of Way Act, which provides the public the right to

roam on certain private lands without compensation

to the landowners. ere are many constitutional and

cultural-historical issues pertinent to importing this

right to roam into the United States, in particular the

current constitutional barrier of the physical invasion

rule in Fifth Amendment Takings Clause. However,

signicant doctrinal weaknesses persist regarding the

“fundamental” right to exclude underpinning this

rule. A right to roam agenda might be successfully

interwoven into the American environmental justice

movement to apply some pressure for change.

I. The Right to Roam: An Overview

of Issues Raised From an American

Perspective

In the United States, the desire to preserve natural la nd-

scapes often cu lminates in the creation of public spaces

on government land.1 Yet, at least one rea son why envi-

ronmental preser vation is important to Americans is the

aesthetic enjoyment it brings,2 and our norms of public

access to land generally preclude public access to private

unimproved land without landowner consent, whatever its

aesthetic value. is seems “rather like hiding a Monet in

the attic.”3 Since 2000, Britons have enjoyed an expansive

statutory “right to roam”4 on certain private la nd areas

through enactment of the Countryside and Rights of Way

Act (CRoW).5 is Article considers whether such a right

to roa m—which does not provide landowner compensa-

tion for public access—could have any place within Ameri-

can property law.

Two key issues relevant to prospects for an American

right to roam are the protections aorded property inter-

ests in the U.S. Constitution,6 and Americans’ cultural and

historical compatibility w ith a right to roam. Lega l schol-

ars have reached dierent conclusions as to the implica-

tions of Fifth Amendment jurisprudence and our cultural

background for proposals of a right to roam in America.7

1. See Jerry L. Anderson,   

, 19 G. I’ E. L. R. 375, 395 (2007) [hereinaf-

ter ] (discussing how Americans create public spaces like national

parks on government property to maintain wilderness, while countries like

Britain address the goal of environmental protection through dierent—

nearly opposite—regulatory means).

2. See National Park Ser vice (NPS),  , http://www.nature .nps.

gov/ (last visited Apr. 1, 201 4) (celebrating the natural bea uty of Ameri-

can wildern ess).

3. See Anderson, , supra note 1, at 394.

4. Other countries, particularly in Scandinavia and on the European conti-

nent, and also Scotland, have even more expansive right-to-roam statutes

or customs. See John A. Lovett, Progressive Property in Action: e Land Re-

, 89 N. L. R. 739 (2011) (discussing the right

to roam in Scotland); Heidi Gorovitz Robertson, Public Access to Private

  

, 23 G. I’ E. L. R. 211 (2011)

(discussing the right to roam in Scandinavia and the European continent).

is Article narrows its scope to the more limited right-to- roam legislation

of CRoW, which raises suciently knotty issues when considered within the

context of the American system of law.

5. Countryside and Rights of Way Act, 2000, c. 37 (Eng.).

6. Particularly the Fifth Amendment, which states “nor shall private property be

taken for public use, without just compensation.” U.S. C. amend. V.

7. See Anderson, , supra note 1, at 426, 431 (claiming that CRoW

would be struck down as an unconstitutional taking in America, and that

even if this were not so, the legislation would be “extremely unlikely” in

America); Brian Sawers,   , 83

T. L. R. 665, 674, 689 (arguing that there is no constitutional right



          

   



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