Unreasonable Expectations: Why Palazzolo Has No Right to Turn a Silk Purse into a Sow's Ear

Abstract

Did the State of Rhode Island commit a regulatory taking when it denied Anthony Palazzolo the right to fill the salt marsh on his property? The answer suggested here is no. Under “background principles” of state property and nuisance law, in particular the public trust doctrine, owners of coastal property in Rhode Island have never enjoyed an unqualified right to fill tidal wetlands. In the absence of the express or implied permission of the state, no one has the right to fill, and thereby destroy, these important public trust resources. The remand of the Palazzolo case affords the Rhode Island courts an opportunity to clarify the scope and effect of the public trust doctrine and provide guidance for other state courts facing similar challenges.