Can Public Trust Rights Re-Emerge?: The Takings Clause Implications of United States v. 32.42 Acres of Land

Abstract

In 2005, the United States took by eminent domain about 32.42 acres of prime San Diego coastland that had been subject to California’s public tidelands trust. In the Ninth Circuit Court of Appeals, the California State Lands Commission argued that although the state public trust may not apply to the land while in federal hands post-taking, the trust should re-emerge to burden the property if the federal government later transfers it to a private party. In 2012, the Ninth Circuit rejected this argument, holding in United States v. 32.42 Acres of Land that the federal taking permanently extinguished the state public tidelands trust applicable to the property. This Comment argues that in terminating the state public trust on the San Diego property, the Ninth Circuit failed to consider the degree to which its decision enables unconstitutional evasion of the public use requirement of the Takings Clause by facilitating economic development takings that eliminate a vast amount of public benefit but create relatively little in return.