What the Public Trust Doctrine Can Teach Us About the Police Power, Penn Central, and the Public Interest in Natural Resource Regulation Robin Kundis Craig William H. Leary Professor of Law University of Utah S.J. Quinney College of Law 2015 Lewis & Clark Environmental Law Symposium: Developments in the Public Trust April 10, 2015

The Tribute “Property does not exist in isolation.” HOWEVER, “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.” Joseph Sax, Takings, Private Property and Public Rights, 81 YALE L.J. 149, 152 (1971) 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. 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. Whereas proponents of increased protections for private property are drawn to constitutional takings doctrine, however, 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.

PRIVATE PROPERTY RIGHTS HOLDER The Takings Duality GOVERNMENT PRIVATE PROPERTY RIGHTS HOLDER The Penn Central balancing test for regulatory takings: The evaluation of a regulatory taking claim is essentially an ad hoc balancing of the three factors in the Penn Central test: 1) “The economic impact of the regulation on the claimant . . . ,” 2) “the extent to which the regulation has interfered with distinct investment-backed expectations . . . ,” and 3) “the character of the governmental action.” Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978). Under this test, the government becomes the representative of the public interest and any public rights, which come into play, if at all, under the third factor—”the character of the government action.”

What The Public Trust Reminds Us GOVERNMENT GOVERNMENT PRIVATE PROPERTY RIGHTS HOLDER PRIVATE PROPERTY RIGHTS HOLDER As Joseph Sax recognized, one of the great values of the public trust doctrine is that it forces courts and legislatures to recognize the public as an independent rights holder.

Consequence #1: The Public’s Right is Separate and Longer Term GOVERNMENT PRIVATE PROPERTY RIGHTS HOLDER Government regulates to protect a public resource – i.e., the fish in a navigable river. Private fishermen claim a taking of their exclusive rights to fish.

PRIVATE PROPERTY RIGHTS HOLDER Consequence #2: The Private Rights Holder Can Benefit from Being a Member of the Public THE PUBLIC GOVERNMENT PRIVATE PROPERTY RIGHTS HOLDER Government regulates to protect a public resource. However, the plaintiff property owner is both specially burdened and specially benefitted.

The Utah Twist: Legislative Takings of the Public’s PTD Rights? GOVERNMENT PRIVATE PROPERTY RIGHTS HOLDER Ruling and Order on Cross Motions for Summary Judgment re: Plaintiff’s Standing and the Public Trust Doctrine, Utah Stream Access Coalition v. VR Acquisitions, L.L.C., Case No. 100500558, Slip. Op. at 17 (Utah 4th Judicial District Ct. March 8, 2013). 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 which protects the public’s rights of navigation, commerce, fishing, and recreation and, somewhat unusually, ecological integrity; and a “public easement” to float on all waters of the state, regardless of bed ownership. 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.” 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 co-equal 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.

Concluding Remarks The public trust doctrine reminds us that the public—the relevant community that uses or depends upon aquatic resources—has rights that are both independent of and different from either the purely government interest or isolated private property rights. Full consideration of this independent public interest should inform the Penn Central regulatory taking analysis so that courts consider: Competing public rights to the resource; The long-term public interest in preserving the resource; and The benefits that property owners receive from the regulation at issue.