What the public trust doctrine can teach us about the police power, Penn Central, and the public interest in natural resource regulation: a tribute to Joe Sax.

• Author: Craig, Robin Kundis
• Position: Developments in the Public Trust

1. INTRODUCTION II. THE PUBLIC AS THE OTHER OWNER OR OTHER RIGHTS HOLDER A. The Public as "Other Owner": Public Ownership of Submerged Lands and the Doctrine of Accretion B. The Public as "Other Rights Holder": The Federal Navigation Servitude III. MEASURES TAKEN TO BENEFIT THE PUBLIC ALSO BENEFIT PRIVATE CITIZENS AND PRIVATE PROPERTY IV. WE'RE IN THIS FOR THE LONG HAUL--WE HOPE V. CONCLUSION I. INTRODUCTION

   The Utah courts recognize two sets of public rights in waters: a standard public trust doctrine that limits the state's ability to dispose of trust lands, including the submerged lands beneath navigable waters, and that protects the public's rights of navigation, commerce, fishing, and recreation and, somewhat unusually, ecological integrity; (1) and a "public easement" to float on all waters of the state, regardless of bed ownership. (2) Faced in 2013 with the issue of whether legislative regulation of this public easement, taken too far, could amount to an unconstitutional disposal of public rights, the Fourth Judicial District Court for Wasatch County, Utah, applied an inverted version of regulatory takings doctrine, examining "the character of the government action and whether it is so onerous as to be tantamount to a disposal of the public's easement." (3)

   In so doing, the Utah district court did something fairly remarkable: It recognized, in a regulatory takings-like context, that the interests and rights of the State of Utah are not coequal with the interests and rights of the Utah public. Indeed, by de-conflating those interests, it could impose limits both on the Utah legislature's authority to limit public use of waters within the state and on the public's recently expanding demands to use those waters.

   This, as Joseph Sax recognized, is one of the great values of the public trust doctrine: it forces courts and legislatures to recognize the public as an independent rights holder. Indeed, one of Sax's recurring scholarly concerns was how to effectuate and preserve the substantial and long-term public interest, even public rights, in natural resources. (4) Like many of us who have been drawn to this problem, Sax recognized that property law provided the most immediate nexus for examining this public-private balance of rights.' However, whereas proponents of increased protections for private property are drawn to constitutional takings doctrine, (6) Sax and those of us who follow in his footsteps are drawn to those property law doctrines that explicitly recognize that public rights and interests in resources do exist: the navigation servitude, public necessity, and--most crucially in Sax's case--the public trust doctrine.

   Specific emphasis in legal policies wax and wane over time in response to the pendulum swings of public values and to the emergence of new legal and policy issues. Nevertheless, it is fair to say that, from the time that Sax began writing his crucial articles on property and the public trust doctrine, the courts' emphasis on private property rights has been more or less continually waxing, while judicial and legislative recognition of public rights has generally been waning. One consequence has been a drive to formalize and freeze property rights as of the moment of creation into particular parcels. For example, in the U.S. Supreme Court's 1992 decision, Lucas v. South Carolina Coastal Council (Lucas), (7) the Court quite famously eliminated the police power defense to regulatory takings claims, stating instead that "[w]here the State seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner's estate shows that the proscribed use interests were not part of his title to begin with." (8) While this sentence can be interpreted in many ways, (9) it very clearly conveys a vision of private property rights as relatively unmalleable, creating a regulatory takings doctrine that is designed to inhibit government innovation to address new problems, such as coastal inundation. Sax had essentially the same reaction to the case, albeit from the perspective of a different kind of innovation, and concluded that Justice Scalia was sending a "clear message" that "States may not regulate land use solely by requiring landowners to maintain their property in its natural state as part of a functioning ecosystem, even though those natural functions may be important to the ecosystem." (10) The goal, Sax concluded, was to "limit the legal foundation" for any emerging conception that "land [is] a part of an ecosystem, rather than .. purely private property" (11)--i.e., that private property partakes in uber-qualities that extend beyond the definitions of private property itself.

   As such, regulatory takings doctrine elides increasingly important public aspects of private property. As Sax himself noted in 1971, "takings doctrine is tied to an assumption that the right to compensation, and the amount to be paid, can be determined by examining the economic effects that occur solely within the physical boundaries of one's property." (12) Part of Sax's enduring contribution to legal scholarship was to recognize the naivety of this perspective, particularly when it comes to natural resources: "Property does not exist in isolation." (13)

   Notably, a variety of property doctrines do acknowledge this relational aspect of property rights. A chart of those doctrines. appears in Table 1, which is purposely organized for structural suggestiveness.

   Table 1 reveals, among other things, that property law has a recurring interest in the third-party impacts of property-related actions. As such, it is instructive to identify when the law will provide a remedy for such third-party impacts--and when it will not. Thus, ignoring for the moment the two constitutional takings at each end of the table, Table 1 suggests an important structural consistency among these property doctrines: When the actor acts to his, her, or its own benefit and impacts a third party, regardless of whether the third party is public or private, that third party can invoke a legal doctrine to provide the third party with a remedy, namely trespass, private nuisance, private necessity, or public nuisance. (26) Conversely, and again leaving aside for the moment constitutional takings, when a government acts to protect the rights and interests of the "public"--that nongovernmental assemblage of individuals that represents the collective interests and rights of the citizenry and residents of the United States--impacted private interests generally have no remedy, as demonstrated by the doctrines of navigation servitude, public necessity, and public trust. (27) Instead, the private conduct is deemed at best subordinate to public rights and interests and at worst simply illegal. (28)

   So far, so good. Constitutional takings analyses, however, appear--at least at first blush--to complicate the structural simplicity of this typology. What I would like to suggest as a starting point for this Article is that takings doctrine has conflated the identities of the government and the public in ways that frustrate the structural archetypes that otherwise underlie property law. This conflation undermines proper recognition of public rights and interests in the takings analysis. Moreover, this Article suggests that the public trust doctrine can help to illuminate why this conflation is important. Specifically, when courts conflate the government with the public in regulatory takings analyses, they both ignore the fact that there are many times when private property owners benefit from being members of the public and elide the independent and long-term importance of protecting public rights in natural resources.

   True, there are many times and instances where the relevant government is in fact a stand-in--or, in the language of the public trust doctrine, the trustee--for the public as a whole. Perhaps the most important instance of government-as-public-trustee for this Article is state ownership of the beds and banks of navigable waters, which the state holds in trust for the people of that state (29)--i.e., for the public. Part II will further examine this relationship, arguing that, under the public trust doctrine, it becomes important to recognize that when the government is in fact acting as the trustee for the public, it represents a set of enforceable legal rights and interests that can be in direct competition with private rights and interests. As such, property rights analyses are best served by treating the government-public as a legitimate second property owner, not as an interfering regulator. The federal navigation servitude underscores this point by protecting the public's right of navigation as a dominant property interest that both limits and helps to define the scope of riparian private property.

   Parts III and IV of this Article, in contrast, examine contexts in which the government truly is a regulator. In this capacity, governments do not act in a direct trustee relationship with the public, and both governments and the people who make up governments can have interests and goals contrary to--or at least different from--those of the public they supposedly serve. The federal government's constitutional right to suspend habeas corpus under certain circumstances (30) and its denial of basic due process rights to Guantanamo Bay detainees (31) both evidence this potential separation of interests between the government and the public.

   Acknowledging this separation between government and public interests can make structural sense of constitutional takings law as it originally existed in the United States. In the classic view of the Fifth and Fourteenth Amendments' prohibitions on taking private property without just compensation, (32) the federal, state, and local governments owed compensation only when they actually...