Public and Private Property Rights: Regulatory and Physical Takings and the Public Trust Doctrine

Abstract

In Lucas v. South Carolina Coastal Council, the Supreme Court held that, when a regulation has deprived a landowner of all economically beneficial use, a threshold issue in determining whether compensation is due is whether the landowner’s rights of ownership are confined by the limitations on the use of land which “inhere in the title itself.” For land that may fall within the public trust doctrine, Lucas’s threshold determination has significant consequences. Because the public trust doctrine is a “background principle,” buyers and sellers of real property may not be able to claim full title, and should be cognizant of the potential application of the doctrine to their land. Further, state and local regulatory bodies should strategically employ the public trust doctrine in environmental protection regulation. Finally, the public trust doctrine’s role in a takings analysis suggests that property rights are perhaps more communal than generally acknowledged, and reveals that it may make sense to evaluate property rights from a community-based perspective.