Takings and Public Trust Doctrine

1. Takings and Public Trust Doctrine Beth C. Bryant, J.D. University of Washington School of Marine Affairs

2. Origins of Public Trust Doctrine “By the law of nature these three things are common to mankind -- the air, running water, the sea, and consequently the shores of the sea” -- Justinian Institute

3. The “Bundle of Sticks” Property Rights Analogy

4. Property titles in trust resources Jus publicum: the collective rights of the public to fully use and enjoy trust lands and waters… for public purposes Jus privatum: private proprietary rights in the use and possession of trust lands, subservient to the jus publicum

5. Resources recognized by PTD • Navigable waters • Submerged lands • Tidelands • Shorelands • Living resources in waters and on lands • The precise contours of public trust resources vary from state to state

6. Protected public trust rights • Fishing • Swimming • Boating • Public access • Commerce • Travel • These rights are not fixed or static, and may change over time and vary among states

8. Defining public-private boundary of coastal lands: A matter of state law

9. Unique ownership situation in Washington state • Washington asserted ownership over “beds and shores of all navigable waters in the state” in 1889 • Washington allowed upland owners to purchase aquatic lands until 1971 • Today, virtually all bedlands of navigable waters are state owned, along with 30% of tidelands and 75% of shorelands Source: Washington Department of Natural Resources

10. Determining ownership in Washington state • Is the water body navigable or influenced by tides? • Were the aquatic lands sold prior to 1971? • How has the shoreline changed over time?

11. How do shoreline changes affect ownership? Erosion or accretion (gradual): Ownership boundaries change Avulsion (sudden): Ownership boundaries do not change

12. Eminent Domain and Regulatory Takings U.S. Constitution, Fifth Amendment No person shall be … deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation.

13. What constitutes a regulatory taking? • Physical occupation of private land • Regulation that “goes too far” • Permit condition lacks a rational connection or “essential nexus” with a valid public purpose • No “rough proportionality” between permit condition and impact of development • Total deprivation of economic use • Interference with “reasonable investment-backed expectations” • Compensable taking may occur even when restriction is temporary

14. Problem: Bulkheads accelerate erosion, loss of intertidal area

15. Some parting thoughts “Law is not at its best when applied to nature’s whims” -- the constant physical change and interplay of land and water make it difficult to formulate permanent legal rules for shoreline management (Wilkins & Wascom 1992)

16. Tension between competing rationales for property use Public trust: Land as active, functional, interconnected system: “economy of nature” Takings: Land as property to be improved by owners: “transformative economy” (Kleinsasser 2005)

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