b174-248 hunter 1988 article

Citation: 12 Harv. Envtl. L. Rev. 311 1988

Content downloaded/printed from HeinOnline (http://heinonline.org)Thu Jun 14 01:54:56 2012

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from uncorrected OCR text.

-- To obtain permission to use this article beyond the scope of your HeinOnline license, please use:

https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0147-8257

<T>1,2<END1>1<END2>12<END3>(504.96,1.92)<E4>22</E4>0<E5>0<E6>0<E7>11<E8>6/28/2012 12:00:00 AM10:44:27.5234924<E9></T>

AN ECOLOGICAL PERSPECTIVE ON PROPERTY: ACALL FOR JUDICIAL PROTECTION OF THE

PUBLIC'S INTEREST IN ENVIRONMENTALLYCRITICAL RESOURCES

David B. Hunter*

All thinking worthy of the name must now be ecological.'

This article brings an ecological perspective to the conflictbetween private and public rights in land and other environmentalresources. Central to this ecological perspective is the belief thatour laws and values cannot continue to ignore the restraints im-posed on human activity by our natural environment. Currentconceptions of land as a form of economic property subject onlyto the whims of the marketplace ignore these environmental re-straints. The courts, in the past responsible for the current eco-nomic conceptions of land, must expand their view and upholdthe public's legitimate interest in ecological stability and integrity.

The fifth amendment is the primary battlefield upon which theconflict between public and private rights in property is fought.There the conflict is reduced to the question of when a validexercise of the police power impermissibly interferes with privateproperty rights so as to trigger the fifth amendment's mandate ofjust compensation. 2 This article critiques the narrow economicperspective of current takings doctrine and argues that ecologicalfactors must be considered in takings cases. Rather than manipu-late economics-based takings analyses to include ecological fac-tors, as the environmentally-aware judge must do today, courtsmust overtly expand the inquiry to account for the crucial ecolog-ical role of land.

Although the article's primary focus is on the law's treatmentof land in the context of fifth amendment takings cases, the article

* B.A. 1983, University of Michigan; J.D. 1986, Harvard Law School.1. D. WORSTER, RIVERS OF EMPIRE: WATER, ARIDITY AND THE GROWTH OF THE

AMERICAN WEST 17 (1985) (quoting L. MUMFORD, THE PENTAGON OF POWER (1970)).2. The fifth amendment states: "[N]or shall private property be taken without just

compensation." U.S. CONsT. amend. V. Much has been written on the fifth amendment,see infra note 31, but few authors have viewed land as an ecological, rather than economic,unit. But see Large, This Land is Whose Land? Changing Concepts of Land as Property,1973 Wis. L. REV. 1039 (describing how environmentalism is changing our conceptions ofproperty).

HeinOnline -- 12 Harv. Envtl. L. Rev. 311 1988

Harvard Environmental Law Review [Vol. 12:311

also examines the public trust and the navigation servitude - tworelated doctrines that have been developed to define public rightsin environmental resources. The two doctrines, which are fre-quently raised as defenses against takings claims, have historicallygranted the public certain rights in water and wetlands. Unfortu-nately, the doctrines are frequently defined by reference to archaiclegalisms rather than an understanding of ecology. This articleidentifies recent trends and applications of the doctrines that raisethe hope that the courts are slowly awakening to the ecologicalimportance of certain undeveloped lands. The article also explainshow these recent developments can fit together to form a coherentand ecology-driven jurisprudence that will lead to a more environ-mentally stable land-use policy.

The ecology-driven analysis set forth in this article leads tothree separate insights into the law's current treatment of land.First, to ecologists land is different from other forms of economicproperty because of its critical environmental role. An understand-ing of this role quickly leads to the conclusion that all land-usedecisions should not be determined by a view of land simply asone more economic factor of production. This economic view ofland has dominated takings jurisprudence, apparently becausecourts have been slow to recognize the ecological importance ofland and quick to make decisions which maximize short-term eco-nomic returns. Environmental awareness would not only injectecological factors into the analysis but would question morebroadly why courts feel constitutionally compelled to maximizeeconomic development.

In short, this article argues that the courts must refer to theenvironmental sciences in defining private property rights in land.Different types of land vary fundamentally in their ecological at-tributes and should be treated as fundamentally different by thecourts. For example, when the property in question is wetlandsrather than a parking lot, the courts must be willing to expand theinquiry to include ecological factors. Recognizing these factorswii-DiaIdad the courts to reject a solely economics-based approachto land-use, to address the public interest in preserving the eco-logical role of land and, in some cases, to deny owners of partic-ularly sensitive land the right to destroy its ecological integrity.'

3. See infra text accompanying notes 216-22.


Takings and Ecology

Even when courts uphold private development rights, forcing themto address explicitly land's ecological role will rationalize our ap-proach to land-use.

The second insight offered by the ecological perspective ofthis article is that use restrictions intended to preserve the ecolog-ical integrity of sensitive lands are different from other use restric-tions. In regard to the former, society's decisions are compelledby a recognition of the external ecological effects private land-usedecisions can have; in the latter, they are driven by majoritarianvalue judgments. This insight differentiates ecologically necessaryexercises of the police power and refers the inquiry to the envi-ronmental sciences. Thus, the inherent manipulability that plaguestraditional takings doctrines, as exemplified by the harm/benefitdistinction, 4 is avoided.

Third, an ecological perspective teaches that the public trustand navigation servitude doctrines should be extended by refer-ence to environmental science. The public should have a right inthe ecological integrity of land on which our survival depends. Asthe public trust and navigation servitude are extended to embraceecological integrity, the type of land subject to these doctrinesshould be defined by ecological principles. In some instances,wetland owners should be denied the right to alter the physicalcharacter of those wetlands, when such alteration affects the pub-lic's right in the ecological stability of the land.5

I. AN INTRODUCTION TO ECOLOGY

A. Everything Is Connected to Everything Else: An EcologicalView of Law

"Ecology" is "a branch of science concerned with the inter-relationship of organisms and their environment."'6

The basic insight of ecology is that all living things exist ininterrelated systems; nothing exists in isolation. The worldsystem is weblike; to pluck one strand is to cause all to vibrate;

4. See infra text accompanying notes 58-69.5. See infra text accompanying notes 148-76.6. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 720 (P. Gove ed. 1976).

1988]



whatever happens to one part has ramifications for all the rest.Our actions are not individual but social; they reverberatethroughout the whole ecosystem. 7

Society's recent interest in ecology has resulted in large partfrom the realization in the late 1960's of the dangerous impact ofpersistent pesticides on birds and mammals.8 The recognition ofthe effects of these pesticides raised our consciousness as to theecological consequences of our actions and helped lead us to theunderstanding that humans are still a part of the environment.Although technology frequently seduces us into believing that weare immune from the limits and dangers of the natural community,we are slowly realizing that we will never survive apart from thatcommunity. In short, we are beginning to learn the first law ofecology, "everything is connected to everything else,"9 with humanbeings not excepted.

Another major ecological tenet is that the world is finite. Theearth can support only so many people and only so much humanactivity before limits are reached. This lesson was driven home bythe oil crisis of the 1970's ' as well as by the pesticide scare of the1960's. The current deterioration of the ozone layer is anothervivid example of the complex, unpredictable and potentially cat-astrophic effects posed by our disregard of the environmentallimits to economic growth." The absolute finiteness of the envi-ronment, when coupled with human dependency on the environ-ment, leads to the unquestionable result that human activities willat some point be constrained. "[H]uman activity finds in the naturalworld its external limits."'1 2 In short, the environment imposesconstraints on our freedom; these constraints are not the productof value choices but of the scientific imperative of the environ-

7. SCIENCE ACTION COALITION, WITH A. FRITSCH, ENVIRONMENTAL ETHICS:CHOICES FOR CONCERNED CITIZENS 3-4 (1980); see also W. BERRY, THE UNSETTLING OFAMERICA: CULTURE & AGRICULTURE 22 (1977); B. COMMONER, THE CLOSING CIRCLE:NATURE, MAN AND TECHNOLOGY 33 (1971); Naess, The Shallow and the Deep, Long-Range Ecology Movement: A Summary, 16 INQUIRY 95 (1973).

8. See, e.g., R. CARSON, SILENT SPRING (1962).9. B. COMMONER, supra note 7, at 33.10. See generally Stobaugh & Yergin, The End of Easy Oil, in ENERGY FUTURE 3

(3d. ed. 1983); see also A New Oil Crunch, NEWSWEEK, Feb. 19, 1979, at 20; The OilSqueeze of '79, TIME, Mar. 12, 1979, at 44.

11. Industry Acts To Curb Peril in Ozone Loss, N.Y. Times, Mar, 21, 1988 at Al,col. 1.

12. A. GoPz, ECOLOGY AS POLITICS 13 (1980).


Takings and Ecology

ment's limitations. Reliance on improving technology can delaytemporarily, but not forever, the inevitable constraints. "There isa limit to the capacity of the environment to service ... growth,both in providing raw materials and in assimilating by-productwastes due to consumption. The largesse of technology can onlypostpone or disguise the inevitable. 13

Professor Barbara Ward has written of this ecological imper-ative in particularly vivid language:

We can forget moral imperatives. But today the morals ofrespect and care and modesty come to us in a form we cannotevade. We cannot cheat on DNA. We cannot get round pho-tosynthesis. We cannot say I am not going to give a damn aboutphytoplankton. All these tiny mechanisms provide the precon-ditions of our planetary life. To say we do not care is to say inthe most literal sense that "we choose death. 14

There is a commonly-recognized link between laws and socialvalues, 15 but to ecologists a balance between laws and values isnot alone sufficient to ensure a stable relationship between humansand their environment. Laws and values must also contend withthe constraints imposed by the outside environment. 16 Unfortu-nately, current legal doctrine rarely accounts for such constraints,and thus environmental stability is threatened.

Historically, we have changed the environment to fit our con-ceptions of property. We have fenced, plowed and paved. Theenvironment has proven malleable and to a large extent still is.But there is a limit to this malleability, and certain types of eco-logically important resources - for example, wetlands and riparianforests - can no longer be destroyed without enormous long-termeffects on environmental and therefore social stability. To ecolo-gists, the need for preserving sensitive resources does not reflectvalue choices but rather is the necessary result of objective ob-servations of the laws of nature.17

13. A. FRITSCH, supra note 7, at 5.14. Ward, Speech for Stockholm, in WHO SPEAKS FOR EARTH 31 (M. Strong ed.

1973).15. See, e.g., D. BELL, THE CULTURAL CONTRADICTIONS OF CAPITALISM 245 (1976);

K. BOULDING, ECODYNAMICS: A NEW THEORY OF SOCIETAL EVOLUTION 196-97 (1978).16. See, e.g., R. HEILBRONER, BEYOND BOOM AND CRASH 80-86 (1978).17. See, e.g., B. Ward, supra note 14, at 30 ("And the vital and absorbing thing

about this new moral [ecological] reality is that it is not just based simply upon the insightof sages and prophets. It can now be based upon a most accurate and scientific vision ofhow this universe actually works.").

1988]



In sum, ecologists view the environmental sciences as provid-ing us with certain laws of nature. These laws, just like our ownlaws, restrict our freedom of conduct and choice. Unlike our laws,the laws of nature cannot be changed by legislative fiat; they areimposed on us by the natural world. An understanding of the lawsof nature must therefore inform all of our social institutions.

Recognizing this ecological imperative still does not provethat we must change our laws; we could wait for social values tochange, and they in turn would pressure our laws to change. Thereare two responses to this. First, the enormous growth in land-useregulations suggests that social values have already changed. Ap-parently, society is now beginning to understand the importanceof preserving ecologically critical land. 18 The courts, however,have been reluctant to adopt wholeheartedly these value changes.Foremost among the legal doctrines stifling the emergence of thesevalue changes is the takings clause of the fifth amendment whichhas been labelled "the major obstacle to effective environmentalland-use regulation." 19 Admittedly, protecting individual propertyholders from arbitrary majoritarian value choices is the fifthamendment's primary purpose. However, the need to preserve theecological functions of certain types of land is not a majoritarianvalue choice but an ecological imperative, thus differentiating land-use restrictions on ecologically essential lands from other propertyrestrictions. Moreover, the individual rights found to be violatedby these environmental regulations are economic rights generatedby a judicial presumption that our Constitution creates a guaranteeof development and profit for all property owners. Courts haveyet to confront this judicial presumption with contemporary soci-ety's evident concern for environmental protection.

The second reason justifying a move towards an environmen-tally sound property law is that we cannot afford to wait for socialvalue changes to be reflected more boldly in the political process.Ecologists see the scientific imperative of their view as legitimatingthe imposition of new laws on a society that perhaps has not yetbeen steeped in the environmental sciences. As George Sessionshas written:

18. See infra text accompanying notes 126-47 (discussing the growth of wetlandsregulations).

19. Developments in the Law-Zoning, 91 HARV. L. REV. 1427, 1620 (1978).

316


Takings and Ecology

The immediacy of the environmental crisis does not afford usthe luxury of waiting for the rest of mankind to make the radicalparadigm shift to a Spinozistic-Leopoldian ethical posture. Forthe immediate future, Nature must be protected from the un-controverted and the ecologically ignorant by a vast interlock-ing system of national and international law.20

This position may be novel, but it is the necessary result of rec-ognizing that the environment can no longer wait for broaderpolitical support.

The call for judicial activism in upholding environmental land-use restrictions is tempered considerably by the recognition thatmany courts have already been displaying an increased environ-mental awareness. As a result, several trends are gradually leadingus to an environmentally sound jurisprudence. With respect totakings jurisprudence, the public trust and the navigation servi-tude, certain developments provide hope that the courts will soonestablish a view of property that obligates private property ownersto steward their land and thus ensure that human relationshipswith the land can be determined by an ecologically-sound landethic.

B. The Land Ethic

Fortunately, we need not look far for a land ethic. It hasalready been detailed in Aldo Leopold's classic, A Sand CountyAlmanac.21 Leopold sees the historical development of ethics asan inevitable sequence-the first set of ethics developed betweenindividuals and the second set between individuals and society.22

20. Sessions, Anthropocentrism and the Environmental Crisis, HUMBOLDT J. Soc.REL., Fall-Winter 1974, at 71, 80. The term "Spinozistic" refers to the teachings of BaruchSpinoza, a seventeenth century philosopher. For a discussion of Spinoza's contribution toecological thought, see Devall, The Deep Ecology Movement, 20 NAT. REsoURcES J. 299,303-08 (1979); Sessions, Spinoza and Jeffers on Man in Nature, 20 INQUIRY 481 (1977).The term "Leopoldian" refers to Aldo Leopold, whose views on human relationships toland are discussed infra text accompanying notes 21-29, 102, 107.

21. A. LEOPOLD, A SAND COUNTY ALMANAC (3rd ed. 1966).22. Leopold saw ethics as a study in cooperation:

This extension of ethics, so far studied only by philosophers, is actually aprocess in ecological evolution. Its sequences may be described in ecologicalas well as in philosophical terms. An ethic, ecologically, is a limitation onfreedom of action in the struggle for existence. An ethic, philosophically, is adifferentiation of social from anti-social conduct. These are two definitions of

1988]



The third set of ethics is the relationship of individuals to theirenvironment. 23

Unfortunately, this third set of ethics does not yet exist. Leo-pold observes that "There is as yet no ethic dealing with man'srelation to land and to the animals and plants which grow upon it.... The land-relation is still strictly economic, entailing privi-leges but not obligations. 24

Leopold proposes the following land ethic:

All ethics so far evolved rest upon a single premise: that theindividual is a member of a community of interdependent parts.His instincts prompt him to compete for his place in the com-munity, but his ethics prompt him also to co-operate (perhapsin order that there may be a place to compete for).

The land ethic simply enlarges the boundaries of the com-munity to include soils, waters, plants, and animals, or collec-tively: the-land.25

This land ethic does not suggest that land cannot be owned; itdoes suggest that land cannot be viewed as existing in isolatedparcels. A property owner's obligations cannot be limited to theproperty's boundaries. At a minimum the land ethic dictates thatland can only be used subject to the understanding that what isowned is part of a community. That community gives certain rightsbut extracts certain obligations. "A land ethic, then, reflects theexistence of an ecological conscience, and this in turn reflects aconviction of individual responsibility for the health of the land." 26

one thing. The thing has its origins in the tendency of interdependent individualsor groups to evolve modes of co-operation.

Id. at 217-18.23. This relationship has generally been viewed legally as the interaction between

individuals and society. Although intuitively correct because the collective society enforcesany ethic between humans and the environment, this view fails to see the inherent inde-pendent force of an environmentally imposed ethic.

24. A. LEOPOLD, supra note 21, at 238.25. Id. at 239.26. Id. at 258. The stewardship obligation that this article suggests should stem from

a land ethic also can be found in religion. Everyone has heard the Old Testament dictateto go forth and "subdue" the earth; commonly overlooked in our efforts to justify devel-opment is that the same verse includes the mandate to "replenish" the earth. Genesis 1:28.Indeed, the Judeo-Christian tenets can be seen as obligating property owners to act asstewards. Humans are the managers of land owned only by God. See, e.g., Leviticus 25:3-6 (creating a sabbatical year every seventh year in which the land is given a rest). Seegenerally A. FlITSCH, supra note 7, at 233-53 (discussing the theological roots ofstewardship).


Takings and Ecology

Thus the key concept of the land ethic is the idea of steward-ship. Humans as the dominant members of the land communityare obligated to protect and preserve the integrity-the perpetualhealth-of the environment. The obligation of stewardship27 neednot be rooted in altruism; it necessarily results from human de-pendency on a finite environment.

Stewardship ... refers to management, a management whichuses no more of the available resources than needed ....which does not allow damage to go unattended ... , whichincludes a proper dominion ... , and which looks out forothers' needs .... Wealth, power, or resources are held in trustand include serious social responsibilities. 28

The central aspect of stewardship-that attached to propertyownership are certain obligations to the community-is not newto property law. Property has for a long time been viewed as theinterplay between private rights and obligations to the community.Only here the obligations are not defined by the "state," but ratherby the nature of the land itself: land as part of a larger ecosystemimposes its own obligations. The obligations imposed on land own-ers by the environment are independent of the obligations imposedby the "state. '29 The state's apparatus is only necessary to inter-pret and enforce the land's demands on property owners.

To the extent that current land-use restrictions reflect a height-ened understanding of the ecological constraints on society, theybegin-to inject the land ethic's principle of stewardship into prop-erty law. These land-use restrictions, like all other limitations onproperty rights, run afoul of current fifth amendment tests becausethe legal system only views the conflict as between individuals andsociety. As noted above, however, some land-use restrictions aredifferent in that they are compelled by environmental limitations.Viewing the conflict between property rights and these ecologi-cally-compelled land-use restrictions as merely a clash between

27. The idea of stewardship, as well as other ecological concepts, can also be foundin many other cultures-particularly those of native North Americans. See generally ToTOUCH THE EARTH (T. McLuhan ed. 1971); Large, supra note 2, at 1041-44 (contrastingthe native North American's view of land with that of white settlers).

28. A. FRITSCH, supra note 7, at 248.29. The environmental community imposes obligations in two separate ways. First,

from an anthropocentric view because of the ecological limits of our biosphere, and second,in more of the Leopoldian spirit, because of the moral obligation we owe to the landcommunity.

19881



individuals and malleable social values ignores the 'ecological im-perative of the restrictions. The restrictions are the only mecha-nism for enforcing obligations placed on individual owners by thelaws of nature.

Almost all commentators on the takings question ignore theenvironmental role of land and the obligation of stewardship. Notsurprisingly, current takings doctrine does not explicitly embodyany of the land ethic's principle of stewardship. Nor does currenttakings doctrine adequately permit the government sufficient lati-tude to enforce the obligations land owners have towards the "landcommunity." As the following discussion and critique of currenttakings doctrine indicates, the economic conception of propertynow in favor leaves little room for an ecologically sound propertylaw.

II. TRADITIONAL INVERSE CONDEMNATION LAW

The takings clause poses the question: when does the validexercise of the police power ° become so burdensome as to effec-tuate a taking for which just compensation must be paid?31 Thequestion may sound simple, but the Supreme Court has yet toprovide a coherent framework for solving the inverse condemna-tion puzzle. In addressing this puzzle, the Supreme Court origi-

30. The ancillary question of what is a valid exercise of the police power is beyondthe scope of this article. In general, the courts are very deferential to a legislative deter-mination that a certain measure protects the community's health, welfare, safety andmorals, requiring only that the legislation be "reasonable." See, e.g., Lawton v. Steele,152 U.S. 133, 137 (1894) (reasonableness depends on whether "the interests of the public... require such interference," and whether "the means are reasonably necessary"); Gold-blatt v. Town of Hempstead, 369 U.S. 590, 595 (1962) (reasonableness depends on thenature of the menace, other available alternatives, and the potential loss); Sproles v.Binford, 286 U.S. 374, 388 (1932) ("[Dlebatable questions as to reasonableness are not forthe courts but for the Legislature."). Challengers to the regulation have the burden ofproving unreasonableness. See, e.g., Goldblatt, 369 U.S. at 596; Bibb v. Navajo FreightLines Inc., 359 U.S. 520, 529 (1959); Salsburg v. Maryland, 346 U.S. 545, 553 (1954).

31. A host of authors have written on the subject. See, e.g., B. ACKERMAN, PRIVATEPROPERTY AND THE CONSTITUTION (1977); Berger, A Policy Analysis of the Taking Prob-lem, 49 N.Y.U.L. REV. 165 (1974); Costonis, "Fair" Compensation and the AccomodationPower: Antidotes for the Taking Impasse in Land Use Controversies, 75 COLUM. L. REV.1021 (1975); Sax, Takings, Private Property and Public Rights, 81 YALE L.J. 149 (1971)[hereinafter Sax, Private Property]; Michelman, Property, Utility and Fairness: Commentson the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165 (1967);Sax, Takings and the Police Power, 74 YALE L.J. 36 (1964) [hereinafter Sax, Police Power],


Takings and Ecology

nally focused primarily on the nature of the government action.3 2

After the 1922 decision in Pennsylvania Coal Co. v. Mahon,33

however, the Court's focus has switched almost entirely to eco-nomics. 34 What follows is not an attempt to introduce a coherentframework on regulatory takings, but instead to briefly summarizethe major inverse condemnation theories and to critique them froman ecological perspective. This ecological perspective offers aframework for that subset of inverse condemnation cases involvingthe public's interest in controlling the development of environ-mentally sensitive land.

A. The Physical Invasion Doctrine

Perhaps the only clear rule within current inverse condem-nation doctrine is that when the government physically trespassesupon or occupies private property, it has "taken" property just asif it had gone through formal condemnation proceedings. As Pro-fessor Michelman has stated: "The modern significance of physicaloccupation is that courts, while they sometimes do hold non-trespassory injuries compensable, never deny compensation for aphysical takeover. '35

The best known physical-invasion cases involve claims thatairplane overflights have taken a property owner's airspace. 6 Forexample, in United States v. Causby,37 low-flying planes frightenedMr. Causby's chickens, thus prohibiting the use of his property asan egg farm. Similarly, in Griggs v. County ofAllegheny,38 airplanenoise made it impossible for the Griggs to sleep. In both cases theCourt did not hesitate to find a taking, primarily because theaircraft invaded the plaintiffs' property right in the airspace abovethe land. Other examples where the Supreme Court has relied atleast partly on the physical invasion doctrine to find a taking

32. See infra text accompanying notes 35-45 (discussing the physical invasion doc-trine), and notes 46-70 (discussing the harm/benefit distinction).

33. 260 U.S. 393 (1922).34. See infra text accompanying notes 71-78 (discussing the diminution in value

test), and notes 79-91 (discussing the investment-backed expectations doctrine).35. Michelman, supra note 31, at 1184 (emphasis in original).36. See, e.g., United States v. Causby, 328 U.S. 256 (1946); Griggs v. County of

Allegheny, 369 U.S. 84 (1962).37. 328 U.S. 256 (1946).38. 369 U.S. 84 (1962).

1988]



include cases where the government fired weapons over the land,3 9

or permitted periodic flooding.40

The physical invasion doctrine still rules today. In 1982 inLoretto v. Teleprompter Manhattan CATV Corp.,41 the SupremeCourt held that imposing a foot-wide cable television box on roof-tops constituted a taking. The Court adopted a per se rule: "apermanent physical occupation authorized by government is ataking without regard to the public interests it may serve. '42 Giventhe triviality of the government regulation, the case strongly re-affirms the primacy of the physical invasion doctrine. Moreover,the Court's 1987 decision in Nollan v. California CoastalCommission43 is probably best understood as a reflection of theCourt's dislike for physical invasions. In Nollan, the Court struckdown a condition on a California development permit that wouldhave required the property owner to allow the public permanentaccess to the land. Although the Court ruled that such a conditionwas not reasonably related to the legislation, the case may reflectnothing more than the Court's view that forcing a private developerto allow public access is similar to ordering a physical invasion.

Although there is some intuitive appeal to the physical inva-sion doctrine, its flaws as an organizing principle for inverse con-demnation actions are readily apparent from the cases notedabove. First, the extent of the injury may in no way be related towhether there was a physical invasion. For example, the injurycaused by airplane overflights is no less to neighboring landownersthan to those over whose property the aircraft fly directly. Whetherthe plane physically invades the airspace may be irrelevant towhether the owner's use of her land has been inhibited. 44 Second,strict adherence to a physical invasion theory may lead to an

39. Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327 (1922).40. United States v. Cress, 243 U.S. 316 (1917); see also Pumpelly v. Green Bay

Co., 80 U.S. 166 (1871) (declaring that the government takes property when it permitsbackwater of a dam to inundate private land).

41. 458 U.S. 419 (1982).42. Id. at 426.43. 107 S. Ct. 3141 (1987).44. See Martin v. Port of Seattle, 64 Wash. 2d 309, 318, 391 P.2d 540, 546 (1964),

cert. denied, 379 U.S. 989 (1965) (criticizing the physical invasion test in holding that "nooverflight or direct physical invasion of the airspace over the land is necessary in order tomaintain an action under the 'taking or damaging' provisions of the state constitution.");see also Michelman, supra note 31.


Takings and Ecology

inverse condemnation finding in cases posing only trivial burdenson property owners. 45

Finally, the largest shortcoming of the physical invasion doc-trine is its inherent narrowness. The doctrine only informs deci-sionmaking in those cases where there is a physical invasion. Wehave come too far to ignore that takings can occur without anysuch invasion.

B. The Harm/Benefit Distinction

A second major doctrine, espoused by commentators andrelied upon to a certain extent by the courts, emphasizes how theregulation relates to the property. Valid exercises of the policepower are those that regulate the noxious use of land, thus pre-venting the property owner from inflicting a harm on society.Invalid takings occur when the government tries to procure apublic benefit through regulating the land.46

This doctrine permits the prevention of a nuisance withoutcompensation-even if the resulting value of the land is zero. 47

The doctrine has its roots in the case of Mugler v. Kansas,48 wherethe Court found no taking when the government outlawed theoperation of a brewery. Although the plaintiff's building had noother profitable use, the Court refused to find a taking because theregulation did "not disturb the owner in the control or use of hisproperty for lawful purposes, nor restrict his right to dispose of it,but [wa]s only a declaration by the State that its use by any one,

45. Loretto, 485 U.S. 419, the case involving the cable television box, is one exampleof a trivial invasion placed on property owners being struck down. Loretto may nonethelessbe rightly decided, especially if one subscribes to the property-as-personhood theory. See,e.g., Radin, Property and Personhood, 34 STAN. L. REV. 957, 1002-08 (1982). Indeed sucha theory may justify a strict adherence to the direct physical invasion doctrine.

46. For an interesting twist on the harm/benefit distinction, see Sax, Police Power,supra note 31 (distinguishing between the state acting in an appropriative and in a regulatorycapacity); see also Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 135, reh'gdenied, 439 U.S. 883 (1978) (refusing to view landmark preservation as an instance wherethe "government, acting in an enterprise capacity, has appropriated ... property for somestrictly governmental purpose.").

47. For example, Justice Brandeis dissenting in Pennsylvania Coal Co. v. Mahon,260 U.S. 393, 418 (1922), stated that "Restriction upon use does not become inappropriateas a means, merely because it deprives the owner of the only use to which the propertycan then be profitably put."

48. 123 U.S. 623 (1887).

1988]



for certain forbidden purposes, [wa]s prejudicial to the public in-terests." 49 The Court distinguished the police power from eminentdomain by noting that in the former "a nuisance only is abated; inthe other, unoffending property is taken away from an innocentowner."

50

The harm/benefit distinction explains Justice Brandeis' dissentin Pennsylvania Coal Co. v. Mahon.51 To Brandeis, forbiddingcoal mining is "merely the prohihition of a noxious use. The prop-erty so restricted remains in the possession of its owner. The Statedoes not appropriate it or make any use of it. The State merelyprevents the owner from making a use which interferes with par-amount rights of the public. ' 52

Note that the harm/benefit distinction is not concerned withthe residual economic value of the land. Even where the regulationpermits no profitable use of the land, there is no taking. Thus inMugler, the fact that the plaintiffs' building had no value exceptas a brewery did not matter. Similarly in Hadachek v. Sebastian,53

the fact that the land was "far more valuable" as a brickyard thanfor any other purpose did not deter the court from prohibitingbrickmaking under the police power.

The Court's most recent reliance on this view may be in the1987 Keystone Bituminous Coal Ass'n v. DeBenedictis54 decision,where the Court upheld a Pennsylvania subsidence mining law notunlike the one struck down in Pennsylvania Coal. The majority,in an effort to distinguish Pennsylvania Coal, emphasized the le-gitimacy of the exercise of police power in the case at bar.55 Thedissent claimed that the majority created a new "nuisance exemp-tion," ruling that any valid exercise of the police power is auto-matically immune from a takings claim. 56 In the long run, KeystoneBituminous will probably be seen as a unique takings case offeringonly a narrow distinction from Pennsylvania Coal and not a broad

49. Id. at 669.50. Id.51. 260 U.S. 393 (1922), discussed infra text accompanying notes 71-75.52. Id. at 417 (Brandeis, J., dissenting).53. 239 U.S. 394 (1915); see also Goldblatt v. Town of Hempstead, 369 U.S. 590

(1962).54. 107 S. Ct. 1232 (1987).55. Id. at 1242.56. Id. at 1256.


Takings and Ecology

endorsement that police power exercised to mitigate a nuisance isfree from taking challenges. 7

Although a harm/benefit distinction is useful rhetorically, ithas limits as an organizing principle for analyzing regulatory tak-ings. Since nuisances are often nothing more than the right thingin the wrong place-for example, "a pig in the parlor instead ofthe barnyard," 58 or a brickyard in residential Los Angeles5 9 -it isimpossible to tell which of two conflicting uses should be givenpriority. How do we decide that the brickyard owner is causing apublic harm and not the residents who build their homes nextdoor?60 Deferring to legislative determinations would leave indi-vidual property owners vulnerable to the majority's changing val-ues. Perhaps the most vivid illustration of this is Miller v.Schoene,61 where Virginia decided it preferred apple trees to cedartrees because the former were more economically important. Thestate thus ordered the destruction of red cedar trees because theysometimes produce a fungus fatal to nearby apple trees. When aprivate property owner brought a takings claim, the Court heldthat the state had not exceeded "its constitutional powers by de-ciding upon the destruction of one class of property [without com-pensation] in order to save another which, in the judgment of thelegislature, is of greater value to the public. '62 Similar reasoninghas led the Court to uphold prohibitions on brickyards, 63 liverystables, 64 billiard halls, 65 breweries, 66 oil tanks67 and, most recently,a gravel mine.68

57. This is especially so in light of the Court's other 1987 takings case-Nollan v.California Coastal Commission, 107 S. Ct. 3141 (1987).

58. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926).59. Hadachek v. Sebastian, 239 U.S. 394, 394 (1915).60. For a thoughtful decision recognizing this attribute of nuisances in the context

of a suit between two private landowners, see Spur Industries, Inc. v. Del E. Webb Dev.Co., 108 Ariz. 178, 494 P.2d 700 (1972) (enjoining the continued use of a feedyard, butfinding that the housing developers should pay its upheaval costs).

61. 276 U.S. 272 (1928).62. Id. at 279.63. Hadachek, 239 U.S. 394.64. Reinman v. City of Little Rock, 237 U.S. 171 (1915).65. Murphy v. California, 225 U.S. 623 (1912).66. Mugler v. Kansas, 123 U.S. 623 (1887).67. Pierce Oil Corp. v. City of Hope, 248 U.S. 498 (1919).68. Goldblatt v. Town of Hempstead, 369 U.S. 590, 592-93 (1962). The record

presented to the Court, however, failed to demonstrate any reduction in property values.Id. at 595.

19881



More critically, many regulations prohibiting a "public harm"can just as easily be characterized as procuring a public benefit.For example, when the government prohibits dredging or filling ofwetlands, this action can be viewed as either merely prohibiting anoxious use or as providing the public with the benefits of openmarshes. Thus the unadorned harm/benefit distinction fails to il-luminate the takings inquiry because of its inherentmanipulability.

69

Nonetheless, the harm/benefit distinction provides a betterframework than most because it does not rely solely on economicsand permits the courts to incorporate other concerns such as ecol-ogy into the decisionmaking process. Moreover, the doctrine'sshortcomings can be limited by referring to the environmentalsciences-whether the state is curing a harm or providing a benefitcan, with respect to environmentally motivated land-use restric-tions, be determined objectively. 70

C. The Diminution of Value Test and the Rise of Economics

Perhaps the most widely acclaimed-though by no meansuniversally accepted-regulatory takings test is the diminution invalue test offered by Justice Holmes in Pennsylvania Coal Co. v.Mahon.71 According to this test, the regulation of property is acompensable taking if it deprives the plaintiff of all or most of theeconomic value of his land. In Pennsylvania Coal, the coal com-pany had sold to Mr. Mahon the surface rights to some land; thecoal company explicitly reserved the land's subsurface mineralrights. Subsequent legislation prohibited mining where a companydid not own the land's surface. Justice Holmes held that the leg-islation effectuated a taking of the company's subsurface mineralrights. Although Holmes introduced the extent of the diminution

69. For a discussion of wetlands cases using the harm/benefit distinction, see infratext accompanying notes 164-69.

70. Reference to the environmental sciences limits the manipulability of the harm/benefit distinction more "objectively" than reference to economics, because the environ-mental sciences are relatively free from the influence of social institutions or sociopoliticalchoices (such as the choice of free-market capitalism as opposed to socialism).

71. 260 U.S. 393 (1922).

326


Takings and Ecology

of value as "[o]ne fact for consideration, ' 72 he stated that "[whenthe extent of the diminution] reaches a certain magnitude, in mostif not all cases there must be an exercise of eminent domain andcompensation to sustain the act. '73 Relying on this, as well asother language, 74 state and lower courts have often looked only tothe regulation's economic impact on the property to find a taking.75

Thus even though Pennsylvania Coal saw economics as only onefactor for consideration, it signaled the rise of a solely economicview of property in determining regulatory takings issues.

Putting aside for now an ecological critique of viewing land inpurely economic terms, 76 the diminution in value test is still flawed.First, it does not tell us where to draw the line-it just tells uswhere to look. In other words, it fails to determine how muchdiminution is too much or to explain why all diminution shouldnot be recompensed. There is also the practical difficulty, notedby Professor Michelman, 77 in defining what the property is. Toreturn again to wetlands for an example: if an owner owns twoacres-one of uplands free of restrictions and another of wetlandsso thoroughly regulated that no profitable use exists-the questionis whether the economic diminution should be judged accordingto the decrease in the value of the entire two acres or just that ofthe wetlands.78

D. The Reasonable Investment-Backed Expectation Doctrine

In Penn Central Transportation Co. v. City of New York, 79

the Supreme Court modified the economic diminution in value testfrom one that looks solely at the loss in the property's value toone that focuses on the frustration of the land owner's reasonable

72. Id. at 413. This has lead many commentators to argue that Holmes favored abalancing test in which economic deprivation was always relevant, but never dispositive.See, e.g., Michelman, supra note 31, at 1190 n.53.

73. Pennsylvania Coal, 260 U.S. at 413.74. See, e.g., id. at 415.75. See, e.g., Bartlett v. Zoning Comm'n, 161 Conn. 24, 282 A.2d 907 (1971); State

v. Johnson, 265 A.2d 711 (Me. 1970); Morris County Land Improvement Co. v. Parsippany-Troy Hills, 40 N.J. 539, 193 A.2d 232 (1963).

76. See infra text accompanying notes 100-09.77. Michelman, supra note 31, at 1192-93.78. See infra text accompanying notes 170-74 (discussing wetlands cases ruling on

this issue).79. 438 U.S. 104, reh'g denied, 439 U.S. 883 (1978).

19881



"investment-backed expectations."80 Penn Central involved a chal-lenge to New York City's Landmarks Preservation Law.8' The lawempowered a city commission to designate certain buildings aslandmarks. The owners of these designated landmarks had to keepthem in "good repair" and could not alter their exterior withoutthe commission's approval. To alleviate any hardships on land-mark owners, the ordinance allowed tax breaks and permitted thetransfer of development rights to other holdings in the city.82

Penn Central planned to build a fifty-five-story building on topof the Grand Central Terminal in midtown Manhattan. However,the New York Landmarks Commission denied Penn Central's ap-plication. Penn Central sued, claiming that the denial of the de-velopment permit effectuated a taking.

The Court stated, "The economic impact of the regulation onthe claimant and, particularly, the extent to which the regulationhas interfered with distinct investment-backed expectations are,of course, relevant considerations. 8 3 The investment-backed ex-pectations approach improved on the diminution in value ap-proach, if only by clarifying the doctrine. The Penn Central Courtruled that:

[T]he submission that appellants may establish a "taking" sim-ply by showing that they have been denied the ability to exploita property interest that they heretofore had believed was avail-able for development is quite simply untenable.

Th[is]... dispose[s] of any contention that might be based onPennsylvania Coal ... , that full use of air rights is so boundup with the investment-backed expectations of appellants thatgovernmental deprivation of these rights invariably-i.e., irre-

80. Id. at 124.81. N.Y.C. ADMIN. CODE ch. 8-A, § 205-1.0 (1976).82. The use of transferable development rights has sparked great interest among

academics. See, e.g., Costonis, Development Rights Transfer: An Exploratory Essay, 83YALE L.J. 75 (1973); Randle, The National Reserve System and Transferable DevelopmentRights: Is the New Jersey Pinelands Plan an Unconstitutional "Taking"?, 10 B.C. ENVTL.AFF. L. REV. 183 (1982).

83. Penn Central, 438 U.S. at 124. Another factor mentioned in Penn Central was"the character of the governmental action." Id. Later cases have reaffirmed the PennCentral formulation, stating that the relevant factors in a takings analysis are "the characterof the government action, its economic impact, and its interference with reasonable in-vestment-backed expectations." PruneYard Shopping Center v. Robins, 447 U.S. 74, 83(1980); see also United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985);Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005 (1984); Kaiser Aetna v. United States,444 U.S. 164, 175 (1979).


Takings and Ecology

spective of the impact of the restriction on the value of theparcel as a whole-constitutes a "taking." 84

The investment-backed expectations doctrine is not withoutits shortcomings. Largest among these is the fluidity of expecta-tions as a legal concept. To look to expectations in defining thelaw either locks us into obsolete laws or tells us nothing, for aswe change the law we can state confidently that expectations willshortly follow.8 5

The Penn Central decision warrants special attention not onlyfor its contribution to takings law in general but also for its enor-mous implications for land-use restrictions prohibiting the devel-opment of ecologically sensitive lands. In both situations, the gov-ernment denies property owners the right to develop their propertyat all in order to further the public's interest in the existing natureof the property. Not surprisingly, therefore, the Penn Central caseilluminates many issues central to this article. For example, thePenn Central Court stressed that the landmarks law did not forbidany current uses of the building and thus did not interfere withPenn Central's reasonable expectations:

Unlike the governmental acts in Goldblatt, Miller, Causby,Griggs, and Hadacheck, the New York City law does notinterfere in any way with the present uses of the Terminal. Itsdesignation as a landmark not only permits but contemplatesthat appellants may continue to use the property precisely asit has been used for the past 65 years: as a railroad terminalcontaining office space and concessions. So the law does notinterfere with what must be regarded as Penn Central's primaryexpectation concerning the use of the parcel. 86

The idea that reasonable expectations should include only currentuses or uses possible on the property in its current state offers aparticularly good rationale for regulating the development of en-vironmentally sensitive lands .87

84. Penn Central, 438 U.S. at 130 & n.27.85. See infra text accompanying notes 313-16 (discussing further the relationship

between expectations and fairness).86. Penn Central, 438 U.S. at 136. The Court continued: "More importantly, on this

record, we must regard the New York City law as permitting Penn Central not only toprofit from the Terminal but also to obtain a 'reasonable return' on its investment." Id.

87. This article discusses a "natural use" theory of property, which can be includedwithin this "current use" rhetoric. See infra text accompanying notes 177-222.

19881



In addition to looking at whether present uses were beingaffected, the Court addressed other factors, which suggests thatinvestment-backed expectations analysis is perhaps best viewedas an umbrella subsuming all arguments of fairness. These factorsincluded: what post-regulation uses remained,8 8 the regulation'seffect on the whole parcel,8 9 the expectation of the property owner,the arbitrariness of the governmental decision, 90 and whether theplaintiff received any reciprocal benefits. 91 These factors provideample room in which to discuss and protect the ecological role ofproperty, but only if the courts treat the ecological obligations thatcome from land ownership on an equal footing with economicrights.

E. Takings Today: The Primacy of Economics

As seen above, the Supreme Court has identified many doc-trines as relevant to regulatory takings cases. The various doc-trines are perhaps best viewed not as determinative tests, but asfactors to be weighed and analyzed in each case. These factorshave recently been summarized by the Florida Supreme Court:

1. Whether there is a physical invasion of the property.2. The degree to which there is a diminution in value of

the property. Or stated another way, whether the regulationprecludes all economically profitable uses of the property.

3. Whether the regulation confers a public benefit or pre-vents a public harm.

4. Whether the regulation promotes the health, safety,welfare, or morals of the public.

5. Whether the regulation is arbitrarily and capriciouslyapplied.

6. The extent to which the regulation curtails investment-backed expectations. 92

88. Penn Central, 438 U.S. at 136-37. In this regard, the Court noted that smallerproject proposals might not be denied and that the company received transferable devel-opment rights.

89. Id. at 130-31.90. Id. at 131-32.91. Id. at 134.92. Graham v. Estuary Properties, Inc., 399 So. 2d 1374, 1380-81 (Fla. 1981).


1988] Takings and Ecology

Not all of these factors have been weighed equally and someof them are only occasionally relevant. First, where the govern-ment physically invades the property (factor 1), there will be ataking-even if the invasion is trivial. 93 The irrational woodennessof this rule is tempered by the fact that it does not arise in manyregulatory takings cases. 94 Second, the harm/benefit distinction(factor 3) has not been determinative in any recent Supreme Courtcase except perhaps for Keystone Bituminous which may quicklybe forgotten. 95 Whether the regulation promotes the health, safety,welfare or morals (factor 4) is really an ancillary question towhether the action is a legitimate exercise of the police power.96

Finally, the arbitrariness of the government action (factor 5) isproperly viewed as a due process inquiry, not as a takings inquiry.

Where a physical invasion is not present, the economic effectof the regulation has clearly predominated the Court's recent opin-ions. Economics underlies the doctrines in both Penn Central andPennsylvania Coal, and the Court has again and again emphasizedthe primacy of economics in determining when a taking has oc-curred. Those rare cases where the Court has ignored the eco-nomic implications of the restriction are not widely followed. 97

93. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982),discussed supra text accompanying notes 41-42.

94. Cases where the government demands that the public be given a right of accessare discussed infra text accompanying notes 223-62 (discussing the navigation servitude),and infra text accompanying notes 263-309 (discussing the public trust doctrine). The courtsin those cases do not employ the physical invasion doctrine.

95. But see cases cited supra note 83 (stating that the "character of governmentaction" is an important factor, but these recent cases are probably just referring to thephysical invasion doctrine).

96. See cases cited supra note 30 (discussing the ancillary question of whether thelegislation is reasonable)

97. The recent case of Andrus v. Allard, 444 U.S. 51 (1979), is a prime example.There, a prohibition on the sale of eagles or their parts stripped the plaintiffs of allcommercial value of their eagle feathers. The Court nonetheless upheld the legislation,stating that:

In the instant case, it is not clear that appellees will be unable to deriveeconomic benefit from the artifacts; for example, they might exhibit the artifactsfor an admissions charge. At any rate, loss of future profits-unaccompaniedby any physical property restriction-provides a slender reed upon which torest a takings claim. Prediction of profitability is essentially a matter of reasonedspeculation that courts are not especially competent to perform. Further, per-haps because of its very uncertainty, the interest in anticipated gains hastraditionally been viewed as less compelling than other property-relatedinterests.

Id. at 66.



In recent years, the most common incarnation of an inversecondemnation theory has been the two-part test first articulated in1980 in Agins v. City of Tiburon.98 The Agins Court stated that aland-use regulation effectuates a taking "if the Ordinance does notsubstantially advance legitimate state interests, . . . or denies anowner economically viable use of his land. . ."99 The "legitimatestate interest" prong of the two-part test is essentially a due pro-cess inquiry into the legitimacy of the particular exercise of policepower. The "economic viability" prong of the Agins test clearlyreinforces the primacy of economics in controlling the judicialoversight of land-use controls.

F. An Ecological Critique of Traditional Takings Doctrine

Not surprisingly, the above survey of traditional takings doc-trine reveals that the land ethic's principle of stewardship de-scribed in Part I is absent from current judicial conceptions ofproperty. Instead, the courts-led by the decisions in Penn Centraland Pennsylvania Coal-have increasingly looked to economicsto solve regulatory takings cases. In so doing, the land is viewedsolely as an economic factor of production to be developed in anever-ending march towards a larger gross national product.

This economic view is the greatest obstacle to an ecologicallysound theory of property. The courts' adherence to an economics-based takings doctrine imposes on our society a particular eco-nomic system that prefers unchecked growth and developmentover stewardship and conservation. Just as the now-discreditedsubstantive due process cases of the Lochner era vacated earlyNew Deal legislation because of a judicial preference for a free-market economic system, 100 current takings doctrine vacates eco-

98. 447 U.S. 255 (1980); see also, e.g., Nollan v. California Coastal Comm'n, 107 S.Ct. 3141, 3146 (1987); Keystone Bituminous Coal Ass'n v. DeBenedictis, 107 S. Ct. 1232,1242 (1987).

99. Agins, 447 U.S. at 260.100. The Lochner era of substantive due process began with Lochner v. New York,

198 U.S. 45 (1905). During the subsequent 32 years, the Supreme Court struck down a longlist of legislation. The Lochner era ended abruptly with West Coast Hotel v. Parrish, 300U.S. 379 (1937). For a discussion of the rise and fall of economic substantive due process,see L. TRIBE, AMERICAN CONSTITUTIONAL LAW, 553-86 (1988). For an insightful com-parison of current takings doctrine and the Lochner era, see McGinley, Regulatory "Tak-ings": The Remarkable Reconstruction of Economic Substantive Due Process Analysis inConstitutional Law, 17 Envtl. L. Rep. (Envtl. L. Inst.) 10,369 (1987); see also L. TIB,


Takings and Ecology

logically sensitive legislation in favor of a growth-at-all-costs eco-nomic system. Thus, the courts repeatedly strike down legislativedeterminations that, in some instances, short-term growth anddevelopment must yield to long-term ecological stability. Thecourts are essentially applying the fifth amendment to preservewhat they see as a socially desirable and constitutionally compelledgoal of growth.

In addition to being no more constitutionally defensible thanwas the Lochner era's stoic defense of the free market, the courts'current preference for a growth and development-based economicsystem (as reflected in current takings jurisprudence) clashes cat-aclysmically with ecological limits to growth. Ecologists reject theidea that economic development is always desirable because theyrecognize that growth and development are often in direct conflictwith the laws of nature. For example, E.F. Schumacher, both aneconomist and an ecologist, has noted that economic growth

must necessarily run into decisive bottlenecks when viewedfrom the point of view of the environmental sciences. An atti-tude to life which seeks fulfillment in the single-minded pursuitof wealth-in short, materialism-does not fit into this world,because it contains within itself no limiting principle, while theenvironment in which it is placed is strictly limited. I0'

The ecologists' views that more growth is not always betterleads to the belief that economics (i.e., the exploitation of naturalresources) should not solely determine the relationship betweenland and people. For example, Aldo Leopold, no less eloquentwhen condemning economics than when promoting ecology, hasstated that the key to attaining a land ethic is to

quit thinking about decent land-use as solely an economic prob-lem. Examine each question in terms of what is ethically andaesthetically right, as well as what is economically expedient.A thing is right when it tends to preserve the integrity, stability,and beauty of the biotic community. It is wrong when it tendsotherwise.

CONSTITUTIONAL CHOICES 178 (1985) (recognizing that the courts' view of property is not"inevitable," but is "increasingly the Constitution as Lochner-style common law").

101. E.F. SCHUMACHER, SMALL IS BEAUTIFUL 29-30 (1973).

1988]



... The fallacy the economic determinists have tiedaround our collective neck, and which we now need to castoff, is the belief that economics determines all land-use. Thisis simply not true. An innumerable host of actions and attitudes,comprising perhaps the bulk of all land relations, is determinedby the land-users' tastes and predilections, rather than by hispurse.102

Current takings jurisprudence, of course, rejects Leopold's moreecologically coherent view of land and perpetuates a relationshipbetween people and land defined solely by exploitation.

From an ecologist's view, there are several other major prob-lems with thinking of property merely in exploitative terms. Thecurrent economic view of property is ecologically myopic: it islimited to the boundaries of the individual parcel of property inquestion. Yet ecology teaches us that every parcel of land mustbe viewed as part of an interconnected web. By ignoring land'secological role, the current economic conception of property failsto account for all the extra-territorial impacts of changes on indi-vidual pieces of land.103

Concern about these "externalities" often informs legislativedecisions in imposing land-use restrictions. The legislatures havesimply balanced the social costs and benefits of the regulation.Unfortunately, these land-use restrictions will be struck down be-cause the courts' approach only looks to the private costs andbenefits internalized by the individual landowners. Strictly speak-ing, this is not a failure of economics; 1 4 it is a failure to applyeconomics correctly and is caused by the courts' interest in onlythose economic costs and benefits internalized by the individualproperty owner. If an owner loses all the value of her land becausea restriction prohibits her from inflicting huge social costs on theenvironmental community, the court will find a taking. In short,

102. A. LEOPOLD, supra note 21, at 262-63 (emphasis in original).103. These "external" effects are well known to both economists and ecologists, but

only the economists believe such effects can be quantified. Ecologists recognize that thecomplexity of most ecosystems precludes the satisfactory quantification of environmentalexternalities.

104. Note that in this context, the public harm/benefit distinction, discussed supratext accompanying notes 46-70, offers an ecologically superior standard than does aneconomics-based doctrine.


Takings and Ecology

current takings doctrine does not consider the relevance of socialcosts and benefits.

The second fundamental problem with the current economicview of property is that, even if the courts incorporated the socialcosts of development into their decisionmaking, much of the land'svalue to the ecological community is not cognizable in the languageof economics. Most environmental amenities cannot adequatelybe monetized, not because they are not valuable, but because theyare not supplied through a market. Market prices, based on con-sumer willingness and ability to pay, reveal the value of newhouses, office buildings and apartment complexes, but there is nosimilar market mechanism for quantifying the value of a cleanstream or an open prairie. 105 Although economists have developedmethods of estimating consumer willingness and ability to pay forenvironmental amenities, these methods are all too often inade-quate and are in any event ignored in current takings jurispru-dence.10 6 Thus decisions about property, when made on the basisof economics and in the language of economics, are necessarilybiased against protecting environmental amenities. Not surpris-ingly, Aldo Leopold recognized this imbalance created by an eco-nomic view of land as well:

To sum up: a system of conservation based solely on economicself-interest is hopelessly lopsided. It tends to ignore, and thuseventually to eliminate, many elements in the land communitythat lack commercial value, but that are (as far as we know)essential to its healthy functioning. It assumes, falsely, I think,that the economic parts of the biotic clock will function withoutthe uneconomic parts. It tends to relegate to government many

105. See A. FRITSCH, supra note 7, at 2-3 ("Our economic system does not grant anintrinsic value to often unquantifiable environmental components. There's no price tag ona breath of air-fresh or otherwise-or a view of a wild river."); see also id. at 32-37. Thetruly ironic aspect of environmental degradation, however, is that as environmental commonproperty resources become scarce, they become more like other market goods. Beaches,wetlands and forests are privatized and become less widely available. Those who can affordto own them or travel to them can still enjoy them by paying for them. Those who arepoor must do without. Although this situation may be palatable for beaches, wetlands andforests, it is most certainly not for breathable air and drinkable water.

106. See generally THE CONSERVATION FOUNDATION, COsT-BENEFIT ANALYSISAND ENVIRONMENTAL REGULATIONS: POLITICS, ETHICS, AND METHODS (1982); A. FREE-MAN III, THE BENEFITS OF ENVIRONMENTAL IMPROVEMENT: THEORY AND PRACTICE(1979).

1988]



functions eventually too large, too complex, or too widelydispersed to be performed by government. 10 7

A third major problem with economics is its short time frame.Economists' time horizons for decisionmaking extends only ten totwenty years into the future. Economists factor the element oftime into their decisionmaking through use of a discount rate.Debates over the extent to which the interests of future generationsshould be considered are reduced to debates over the proper ratefor discounting future dollars of benefits or costs. 108 Even the mostfuture-conscious discount rates are inadequate in accounting foran environmentally-relevant time frame. But decisions of land-usedevelopment often have irreversible effects extending forever.Placing discounted values on harmful effects that will arise pri-marily in the distant future leads to the gross underrepresentationof the interests of future generations. In addition, such valuationof future effects wrongly presumes that tomorrow's generationswill value environmental amenities the same way that today'sgenerations do.

The above critique of economics as an organizing principlefor regulatory takings cases can be summarized in a slightly dif-ferent way. The economics-based view of land currently in favorwith the courts fails to appreciate completely the dual role of land.Land is the base of the ecological pyramid as well as being aneconomic factor of production to be bought and sold in a market-place. The problem with viewing regulatory takings problems ineconomic terms is that the language of economics does not ade-quately embrace the land's ecological role. Discussions of "dol-lars" and "development" leave little room to consider biologicalpyramids and ecological integrity. 10 9 In sum, an economic view ofland fails to value, and thus to protect, the land's function as thebase of the ecological pyramid on which human beings depend.

107. A. LEOPOLD, supra note 21, at 251.108. See, e.g., Sierra Club v, Froehlke, 359 F. Supp. 1289, 1362-64 (S.D. Tex. 1973)

(discussing the use of a discount rate in a case under the National Environmental PolicyAct).

109. Cf infra note 160 (discussing how the choice of language influences substantivedecisions).

336



III. WETLANDS AND THE FIFTH AMENDMENT

A. An Overview of the Wetlands Problem

Having reviewed traditional takings doctrine generally, thissection turns to the law's treatment of a particular ecotype ofland-wetlands. 110 Stressing one ecotype of land might seem for-eign to American jurisprudence, but it reflects the essence of anecological approach to property-different ecotypes of land maydeserve different treatment under the laws. In addition, a focus onone type of land will better illuminate how an economics-basedapproach to land-use has had devastating effects on our nation'secological well-being. It will also provide a practical frameworkfor exploring an ecologically sound alternative to current.takingsdoctrine.

Wetlands are chosen for several reasons. First, wetlands arewidely recognized as an ecologically important type of land.'Second, the ecological importance of wetlands has led to manyrestrictions on their use," 2 leading to many "takings" claims. 13

Third, wetlands takings cases have often been treated specially,arguably because of their ecological context. This special treat-

110. The first hurdle in discussing wetlands is definitional. The definition found inthe regulations promulgated under section 404 of the Clean Water Act, 33 U.S.C. § 1344(1982), provides a good starting point, not only because it is the federal definition, but alsobecause it is based on the same three general characteristics found in most state definitions:hydrology, soil type and vegetation. The definition reads:

The term "wetlands" means those areas that are inundated or saturated bysurface or ground water at a frequency and duration sufficient to support, andthat under normal circumstances do support, a prevalence of vegetation typi-cally adapted for life in saturated soil conditions. Wetlands generally includeswamps, marshes, bogs and similar areas.

33 C.F.R. § 328.3(b) (1987); see also Avoyelles Sportsmen's League, Inc. v. Alexander,511 F. Supp. 278, 289 (W.D. La. 1981); United States v. City of Fort Pierre, 580 F. Supp.1036, 1039 (D.S.D. 1983).

State definitions may vary from the federal definition. For example, the Delawarestatute relies in part on the elevation of the land with respect to the mean high-water markand the land's capacity to grow crops. DEL. CODE ANN. tit. 7, § 6603(h) (1974). The effectof tidal action is also frequently relevant, at least for coastal wetlands. See, e.g., MAINEREV. STAT. ANN. tit. 38, § 472 (Supp. 1987).

111. See infra text accompanying notes 118-21.112. See infra text accompanying notes 126-47.113. See infra text accompanying notes 148-60.



ment is often couched in the language of traditional takings doc-trine or through other doctrines such as the public trust 14 and thenavigation servitude.1 5 For these reasons, many scholars havefocused on wetlands takings cases. Some have viewed wetlandsas posing a unique problem for takings law," 6 and some as thebest example of a general problem in takings law. 17

B. An Introduction to Wetlands

1. The Ecological Importance of Wetlands

Wetlands have characteristics of both water and uplands, andserve as an important link between the two. Because of this mixednature and because of their role as a transitional habitat, wetlandsare a critically important ecotype."8

Wetlands act as giant strainers, purifying the water as it flowsthrough them. The integrity of our groundwater-indeed of ourentire hydrologic system-depends on wetlands to cleanse thewater, not only of natural pollutants but also of the many syntheticchemicals that are increasingly discharged into our environment.In many respects, our current problems with groundwater contam-ination result as much from the destruction of nature's capacity toassimilate chemical substances as it does from the wanton disposalof such substances. Our current groundwater problems are com-pounded by the loss of undeveloped land, including wetlands,which are critical for recharging groundwater. Thus, maintainingboth the quantity and the quality of our groundwater resourceswill depend tremendously on our ability to protect and preservewetlands.

114. See infra text accompanying notes 263-309.115. See infra text accompanying notes 223-62.116. See, e.g., Binder, Taking Versus Reasonable Regulation: A Reappraisal in Light

of Regional Planning and Wetlands, 25 U. FLA. L. REV. 1 (1972); Large, supra note 2(land is different than other types of property).

117. See, e.g., B. ACKERMAN, supra note 31; Michelman, supra note 31.118. On the importance of wetlands, see generally COUNCIL ON ENVIRONMENTAL

QUALITY, OUR NATION'S WETLANDS 19-28 (1978); U.S. FISH & WILDLIFE SERV., U.S.DEP'T OF INTERIOR, WETLANDS OF THE UNITED STATES: CURRENT STATUS AND RECENTTRENDS (1984) [hereinafter WETLANDS INVENTORY]; J. KUSLER, OUR NATIONAL WETLANDHERITAGE: A PROTECTION GUIDEBOOK (Envtl. L. Inst. 1983); Binder, supra note 116, at18-25.


Takings and Ecology

In addition, wetlands serve as important buffer zones betweenwater and land. They are nature's form of flood control; soakingup water like a giant sponge, wetlands are often synonymous withfloodplains. Coastal marshes, for example, temper everything fromhurricanes to the daily tides.

Wetlands also serve a myriad of biological functions. Theyoffer breeding areas for many fish, birds and mammals-many ofwhich have historical and economic importahce to humans. Morethan one-third of our endangered species rely on wetlands forsurvival. 1 9 Wetlands support this diverse Wildlife because theysupport a strong plant community. In fact, wetlands are one of themost productive areas in the world. Coastal marshlands produceten tons of plants per acre annually-six times the world's averagewheat production '2" and just below that of our most productivecornfields.' 21

2. The Regulation of Wetlands

Despite their vast importance, wetlands have been disappear-ing at an alarming rate, replaced by highways, parking lots andshopping malls. Estimates suggest that we have destroyed any-where from one-third 22 to two-thirds of North America's wet-lands.' 23 Wetlands destruction continues with annual loss estimatesranging from 300,000 acres' 24 to over 450,000 acres.1 25 Moreover,

119. J. KUSLER, supra note 118, at 3.120. J. CLARK, FISH AND MAN: CONFLICT IN THE ATLANTIC ESTUARIES 3 (1967).

For the classic discussion of coastal marshes, see J. TEAL & M. TEAL, THE LIFE ANDDEATH OF A SALT MARSH (1974).

121. WETLANDS INVENTORY, supra note 118, at 19. Studies of specific areas revealthe amazing productivity of coastal wetlands. For example, freshwater marshes in Georgiaproduce 75 pounds of fish per acre annually and Connecticut's Niantic River produces 300pounds of scallops per acre annually, which exceeds the productivity of our best grazingresources. See COUNCIL ON ENVIRONMENTAL QUALITY, supra note 118, at 19-21.

122. COUNCIL ON ENVIRONMENTAL QUALITY, 11TH ANNUAL REPORT 327 (1980)[hereinafter 1980 CEQ REPORT].

123. Most estimates hover around 50%. See, e.g., WETLANDS INVENTORY, supranote 118, at vii (116 of 215 million acres destroyed (54%)); Binder, supra note 116, at 26(52 of 127 million acres destroyed (41%)).

124. 1980 CEQ REPORT, supra note 122, at 327.125. WETLANDS INVENTORY, supra note 118, at vii. A state-by-state analysis reveals

even more startling figures, as wetlands destruction has not been scattered evenly. Hardesthit are the farm states, as 87% of annual wetland destruction is due to agriculture. Id. Forexample, Iowa has lost 97% of its wetlands-from 4,000,000 acres down to just 27,000.Gucciardo, Wetlands for Iowa Program, NAT'L WETLANDS NEWSL., Mar.-Apr. 1986, at8. In fact, as early as 1938, most midwestern states had reportedly lost all but ten percent

1988] 339


340 Harvard Environmental Law Review [Vol. 12:311

development pressures on wetlands will undoubtedly increase asAmerica's population grows and continues to seek coastalresidences.

The increasing scarcity of wetlands coupled with a greaterawareness of their importance has spawned growing regulation.On the federal level, policymakers have recognized the importanceof wetlands and sought to protect them. 2 6 For example, PresidentCarter issued an Executive Order making wetlands protection theofficial policy of all federal agencies. 127 More important, the CleanWater Act of 1977 strengthened the Army Corps of Engineers'(the "Corps") control over the filling of wetlands,'128 authorizedgrants to state wetlands progrdms 29 and provided six million dol-lars for a National Wetlands Inventory. 30 In addition, section tenof the Rivers and Harbors Act of 1899 requires a Corps permit forany dredging, filling or obstructing of navigable waters. 3, Finally,the federal government's most important role is to manage thelarge number of wetlands that are part of our vast public lands.

State regulation of wetlands is even more extensive and im-portant than federal regulation. For example, almost every coastalstate in the continental United States regulates coastal wetlands. 132

In addition, many states regulate coastal wetlands indirectlythrough shoreland zoning acts, state-wide land-use programs or

of their original wetlands. P. JOHNSON, WETLANDS PRESERVATION (1969). Our urban North-east has also suffered huge wetland losses. For example, the City of Boston now covers2,055 acres of what was once wetlands. See J. TEAL & M. TEAL, supra note 120, at 235.

126. The federal authority to regulate wetlands stems from the commerce clausepower over interstate waters. The scope of this power is immense. Issues of whetherspecific waters or wetlands fall within Congress' regulatory power over "navigable waters"are generally ones of statutory intent, not of any constitutional limitation on federal au-thority. See, e.g., United States v. Ashland Oil & Transp. Co., 504 F.2d 1317 (6th Cir.1974) (extending the regulatory reach of the Clean Water Act to nonnavigable tributariesof navigable waters); United States v. Byrd, 609 F.2d 1204, 1210-11 (7th Cir. 1979) (con-cluding that Congress can "constitutionally ... extend its regulatory control of navigablewaters under the Commerce Clause to wetlands which adjoin or are contiguous to intrastatelakes that are used by interstate travelers .... "); cf. United States v. Riverside BayviewHomes, Inc., 474 U.S. 121 (1985) (upholding Army Corps jurisdiction over wetlands adja-cent to navigable waters, based solely on a statutory interpretation of the Clean WaterAct). For a general overview of federal wetlands regulations, see Want, Federal WetlandsLaw: Cases and Problems, 8 HARV. ENVTL. L. REV. 1 (1984).

127. Exec. Order No. 11,990, reprinted in 1977 U.S. CODE CONG. & ADMIN. NEWS4667.

128. See 33 U.S.C. § 1344 (1982).129. See id. § 1285(g).130. See id. § 1288(i)(2).131. See id. § 403.132. WETLANDS INVENTORY, supra note 118, at 37.


Takings and Ecology

state-wide "critical areas" programs. 133 Inland wetlands enjoy con-siderably less protection; only eight states explicitly regulate inlandwetlands development.134 Other states protect inland wetlands in-directly by controls on dredging and filling in state waters, flood-plain controls, shoreland zoning ordinances, and state wild andscenic river systems.' 35

Local governments also play an important role in wetlandprotection through zoning and other regulations.' 36 Four statesrequire local regulation of wetlands, and over 1,000 communitieshave met these requirements. 137 Even more communities havechosen to protect wetlands under broader, nonmandatory zoningenabling acts. Also important are the growth of local floodplainregulations. More than 17,000 communities are expected to adoptfloodplain regulations.'38

Private response to declining wetlands is also increasing. Forexample, national groups like the Nature Conservancy are dedi-cated to preserving ecologically sensitive land-including wet-lands. 39 There are also organizations, like the Iowa Natural Her-itage Foundation, that work to preserve ecosystems in particularstates.' 40 In some areas, private protection of wetlands is beingencouraged through taxes and subsidies. ' 4' Perhaps most importantare the efforts-often by private sector organizations-to educatethe public. These efforts include books, seminars, conferences andeven a bimonthly wetlands newsletter.142

133. J. KUSLER, supra note 118, at 65.134. Id. These include Connecticut, Massachusetts, Michigan, Minnesota, New

Hampshire, New York, Pennsylvania, Rhode Island, Wisconsin and most recently Maine.See WETLANDS INVENTORY, supra note 118, at 56, Fig. 50; Witherill, Freshwater Wetlands:New Legislation for Maine, NAT'L WETLANDS NEWSL., Jan.-Feb. 1986, at 10.

135. See WETLANDS INVENTORY, supra note 118, at 56, Fig. 50.136. See generally J. KUSLER, supra note 118, at 71-82.137. Id. at 71.138. Id.139. The Nature Conservancy is a national, nonprofit organization headquartered in

Washington, D.C.140. The Iowa Natural Heritage Foundation is a private nonprofit organization which

has saved over 700 acres through its "Wetlands for Iowa Program." See Gucciardo, supranote 125, at 8-9.

141. See, e.g., Madison, Wetlands Restoration on Private Lands- A Pilot Effort,NAT'L WETLANDS NEWSL., Sept.-Oct. 1985, at 10 (describing a Fish & Wildlife Serviceprogram, partially funded by private groups, which leases previously drained wetlands withthe hopes of rehabilitation).

142. The National Wetlands Newsletter, available bimonthly from the EnvironmentalLaw Institute, lists recent publications, seminars and conferences pertaining to wetlands.

1988]



In addition to all of this domestic attention, wetlands are thesubject of the only international treaty aimed at a specific habitattype. The Convention on Wetlands of International ImportanceEspecially as Waterfowl Habitat ("the Ramsar Convention") 43 isintended "to stem the progressive encroachment on and loss ofwetlands now and in the future." 144 The Ramsar Convention hasthirty-eight signatories including most of the major industrial coun-tries; 145 noticeably absent is the United States. Each signatorymust dedicate at least one wetland for protection on the List ofWetlands of International Importance.146 To date, the list includesnearly 300 sites covering almost twenty million hectares. 147

The phenomenal growth in public and private efforts to protectwetlands signifies a fundamental value shift resulting from a grow-ing recognition of the importance of wetlands to a stable environ-ment. Our system of constitutional adjudication fails to the extentthat the courts fail to incorporate our growing understanding ofthe importance of wetlands into takings clause doctrine.

C. Applying Traditional Takings Doctrine to Wetlands

Given the enormous growth in the desire and ability to developwetlands and the concomitant growth in the need to regulate wet-lands development, it is no surprise that the courts have facedmany wetlands takings claims. In this section, some of these casesare grouped into two categories. First, cases that most closelyfollow traditional takings doctrine are discussed. The courts fre-quently strike down regulations concerning wetlands on thegrounds that they place too onerous an economic burden on prop-

143. Feb. 2, 1971, 996 U.N.T.S. 245, reprinted in S. LYSTER, INTERNATIONAL WILD-LIFE LAW 345-54 (1985). The treaty was signed on February 2, 1971 in the Iranian city ofRamsar, by which the Convention is commonly known. For a discussion of the treaty, seeS. LYSTER, supra, at 183-207.

144. Ramsar Convention Article I(1), reprinted in S. LYSTER, supra note 143, at 345.Wetlands are defined broadly to include "areas of marsh, fen peatland or water, whethernatural or artificial, permanent or temporary, with water that is static or flowing, fresh,brackish or salt, including areas of marine water the depth of which at low tide does notexceed six metres." Id. Article 2(1), S. LYSTER at 346.

145. See S. LYSTER, supra note 143, at 184. The list includes, among others: Aus-tralia, Canada, East Germany, West Germany, India, Japan, South Africa, the Soviet Unionand the United Kingdom.

146. Ramsar Convention Article 2(l), reprinted in S. LYSTER, supra note 143, at 346.147. S. LYSTER, supra note 143, at 184.


Takings and Ecology

erty owners. 148 The second category of cases includes those inwhich courts uphold wetlands restrictions by taking advantage ofthe inherent manipulability of traditional takings rhetoric. 149 Al-though these courts deserve environmentalists' praise for findingwhat are often innovative ways to preserve wetlands within theconfines of existing doctrine, they should be criticized for notchallenging explicitly the prevailing economic view of property.The judicial debate must shift from its current emphasis on eco-nomics and focus on the ecological role of land.

1. Striking Down Wetlands Laws

In the paradigm case, an owner-developer seeks to fill or drainher wetlands in order to build on her property. Local, state orfederal regulations, however, require the owner to obtain a permit.Denial of the permit or the imposition of onerous conditions leadsthe owner to claim that the government action effectively takesher property.1 50 A purely economic analysis will often result in afinding that the regulation constituted a taking because very little"economic" use of wetlands is possible without dredging or filling.

Dooley v. Town Plan & Zoning Commission'5' offers a goodexample of the economics-based approach. In Dooley, the plain-tiffs challenged the zoning of their land as a "floodplain district."They claimed that the classification denied them the right to re-move soil from or to fill any part of their property and that it thusdenied them any "practical use" of their land. The ConnecticutSupreme Court agreed, stating that the regulation as applied totheir property

deprived [the plaintiffs]... of any worthwhile rights or benefitsin their land. Where most of the value of a person's propertyhas to be sacrificed so that community welfare may be served,and where the owner does not directly benefit from the evil

148. See infra text accompanying notes 150-60.149. See infra text accompanying notes 161-74.150. Claims that the statute is invalid on its face, though occasionally raised, are

rarely upheld. See, e.g., United States v. Riverside Bayview Homes, Inc., 474 U.S. 121(1985) (holding that merely asserting regulatory jurisdiction over property is not sufficientgrounds for a taking). But see Morris County Land Improvement Co. v. Township ofParsippany-Troy Hills, 40 N.J. 539, 193 A.2d 232 (1963) (upholding a facial challenge to astatute).

151. 151 Conn. 304, 197 A.2d 770 (1964).

1988]



avoided . . . , the occasion is appropriate for the exercise ofeminent domain. 152

Perhaps an even more informative case is Morris County LandImprovement Co. v. Township of Parsippany-Troy Hills,13 inwhich the court struck down regulations that permitted the ownersno "productive use" of the land. 154 The court recognized that itwas the land's ecology-i.e., the instability of the soils-in concertwith the regulations that made economic use of the land impossi-ble: "Without reclamation, nothing but a passive use is possi-ble .... The case is unique in that reclamation is necessary beforeany worthwhile use is possible, except the commercial removal ofthe sand and gravel natural resource.' 1 55 The court exposed itseconomic view of "productive uses" by stating: "All in all, aboutthe only practical use which can be made of property in the zoneis a hunting or fishing preserve or a wildlife sanctuary, none ofwhich can be considered productive.' 1 56

The pattern is repeated in State v. Johnson,157 in which theMaine Supreme Judicial Court found that denial of a permit to fillthree acres of Maine marshland constituted a taking. The courtthought that the land had "no commercial value" if left unfilled: 15 8

"To leave appellants with commercially valueless land in upholdingthe restriction presently imposed, is to charge them with morethan their just share of the cost of this state-wide conservationprogram, granting fully its commendable purpose.' 1 59

152. Id. at 312, 197 A.2d at 774; see also Commissioner of Natural Resources v.Volpe & Co., 349 Mass. 104, 206 N.E.2d 666 (1965) (holding that denial of a developmentpermit is a taking if it denies the owner of all practical uses of the land).

153. 40 N.J. 539, 193 A.2d 232 (1963).154. This finding of facial invalidity is now rare in land-use takings law, and may

stem from Morris County's archaic view of permissible zoning purposes. Throughout theopinion, the court stressed that the zoning ordinance was intended to "maintain the naturalstate of the land," apparently believing that this was an improper zoning goal.

155. Id. at 557-58, 193 A.2d at 243. This passage illustrates the power of languageand the hidden values underlying the choice of language. Commercial and economic usesof land capable only after "reclamation" are "worthwhile" and "productive." Ecologicaluses of land are "passive." The implications are not subtle. Commercial development isgood and to be encouraged; ecological uses are to be ignored.

156. Id. at 552, 193 A.2d at 240.157. 265 A.2d 711 (Me. 1970).158. Id. at 714; cf. In re Maine Clean Fuels, Inc., 310 A.2d 736 (Me. 1973) (distin-

guishing Johnson because here the plaintiff had not demonstrated any diminution-in-value);In re Spring Valley Dev., 300 A.2d 736 (Me. 1973) (distinguishing Johnson in upholding azoning restriction because plaintiff failed to show that land was left commercially valueless).

159. Johnson, 265 A.2d at 716.


1988] Takings and Ecology 345

Whether the courts use the words "commercial," "productive"or "reasonable," 16° the results are always the same when land isviewed in exclusively economic terms: wetlands regulations arestruck down. Indeed, if the courts always took the economic viewseriously they would always strike down prohibitions against wet-land development.

2. Regulations Held Valid

Despite the current emphasis on economic analysis, courtsapplying traditional takings doctrine do not always invalidate de-velopment restrictions. Even when they wholeheartedly adopt tak-ings rhetoric intended to ensure economic return, the courts mayfind that there has been no showing of a substantial diminution ofvalue.161 More interesting is their frequent refusal to apply theeconomic diminution in value test in wetlands cases. Often thecourts, in their desire to approve legislative protection of wetlands,resort to less rigid formulations of takings doctrine.

For example, a recent New Hampshire case relied on the"reasonable investment-backed expectations" theory of Penn Cen-tral to uphold the denial of a development permit. 162 Determinative

160. Sometimes the courts do not use these general terms, but instead explicitlydiscuss the property's specific diminution in value. For example, in Bartlett v. ZoningComm'n, 161 Conn. 24, 282 A.2d 907 (1971), the court found that without the restriction,the plaintiff's tidal-marshland was worth $32,000, but with the restriction, the land wasworth only $1,000. Accordingly, the court found the restriction "unreasonable, confiscatoryand unconstitutional." Id. at 31,282 A.2d at 910. All these terms have something in common(as does the word "develop"); they all imply that the only "good" use of land is economic(as opposed to ecological) use. One commentator has discribed the power of language inthis context:

The fact that language betrays our attitudes and assumptions is evidenced bythe popular use of the word development to signify conversion of forests toagricultural lands or conversion of agricultural lands to a residential subdivi-sion. Unlike the neutral word change or the negative word sprawl, the use ofthe word development carries with it the assumption that the change is good.Environmentalists upset with urban sprawl have on occasion attempted tocounter this tendency by labeling as land rapists those previously called realestate developers. See, e.g., G. MARINE, AMERICA THE RAPED (1971). On themanipulation of language to influence patterns of thought, see G. ORWELL,1984 (1949).

Large, supra note 2, at 1044 n.23.161. See, e.g., Spring Valley, 300 A.2d 736; Maine Clean Fuels, 310 A.2d 736.162. Claridge v. New Hampshire Wetlands Bd., 125 N.H. 745, 485 A.2d 287 (1984).



in the court's view was that the properties were purchased yearsafter the restrictive statute's enactment:

A person who purchases land with notice of statutory impedi-ments to the right to develop that land can justify few, if any,legitimate investment backed expectations of developmentrights which rise to the level of constitutionally protected prop-erty rights .... The state cannot be guarantor, via inversecondemnation proceedings, of the investment risks which peo-ple chose to take in the face of statutory or regulatoryimpediments. 163

The court was of course correct in its view concerning the law'srelation to expectations, but the investment-backed expectationstest is too malleable to provide a meaningful check on governmentaction. Constitutionally relevant expectations should not bechangeable by legislative fiat.

Note that even this innovative use of expectations will notlead to ecologically sound treatment of wetlands in all cases, be-cause those who own wetlands at the time restrictive legislation ispassed can sue for the diminution in the retail value of their prop-erty. The resulting burden on government finances might be suf-ficient to preclude most attempts at regulation. More importantly,such use of expectations does nothing to address explicitly thereal justification for regulation: ecologically important land shouldbe treated differently than other forms of property.

The same problems plague reliance on the harm/benefit dis-tinction. 164 Potomac Sand & Gravel Co. v. Governor ofMaryland 65 provides perhaps the best example of how harm/ben-

163. Id. at 751, 485 A.2d at 291; see also Chokecherry Hills Estates, Inc. v. DeuelCounty, 294 N.W.2d 654 (S.D. 1980) (upholding a restrictive classification of plaintiff'sland as a "natural resource district," because the plaintiff had known of the regulationswhen he purchased the land).

164. See supra text accompanying notes 46-70.165. 266 Md. 358, 293 A.2d 241, cert. denied, 409 U.S. 1040 (1972); see also, e.g.,

Iowa Natural Resources Council v. Van Zee, 261 Iowa 287, 158 N.W,2d I11 (1968) (up-holding a permit requirement on floodplains as a valid police power use restriction); Can-dlestick Properties, Inc. v. San Francisco Bay Conservation & Dev. Comm'n, 11 Cal. App.3d 557, 573, 89 Cal. Rptr. 897, 906 (1970) ("[I]t cannot be said that refusing to allowappellant to fill its bay land amounts to an undue restriction on its use."); Smoke Rise, Inc.v. Washington Suburban Sanitary Comm'n, 400 F. Supp. 1369, 1382 (D. Md. 1975) (notaking because "sewer-service moratoria ... constitute an attempt, not to create a public


Takings and Ecology

efit rhetoric can be used to preserve wetlands. The legislationchallenged in Potomac Sand made it "unlawful to dredge for sand,gravel or other aggregates or minerals, in any of the tidal watersor marshlands of Charles County. 1 66 Even though the biologicalfeatures of the land made gravel mining the only conceivable eco-nomic use, the court concluded that there was no taking. The statewas only prohibiting the property owner from perpetrating a harm:

[The statute] is a legitimate exercise of the police power by theLegislature to regulate and restrain a particular use, that wouldbe inconsistent with or injurious to the rights of the public, ofproperty within control of the State. Such regulation and re-straint is not an unconstitutional taking of private property

167

The Potomac Sand case is impressive in its solicitude of the en-vironment,168 but it accepts unadorned the hollow safety of theharm/benefit distinction; thus it fails completely to develop a unify-ing theory of property that embodies environmental solicitude. 169

Other rhetoric occasionally used by the courts to uphold land-use restrictions is rooted in Penn Central. In that case, the Su-preme Court indicated that the burdens of regulation must bejudged in relation to the benefits that a property owner expects toderive from her entire parcel of land. The Court stated:

"Taking" jurisprudence does not divide a single parcel intodiscrete segments and attempt to determine whether rights in

benefit, but to prevent a public harm to the natural character of the waters of the state.").But see Annicelli v. Town of South Kingston, 463 A.2d 133, 140 (R.I. 1983):

Our determination that the town should have exercised its power of eminentdomain rather than its police power is further premised on the fact that theoverall purpose of the ordinance in question is to benefit the public welfare byprotecting vital natural resources, here barrier beaches, and preserving themfor posterity.

166. 1971 Md. Laws 792; CHARLES COUNTY, MD., CODE OF PUBLIc LAWS art. 9,§ 337A (1969).

167. Potomac Sand, 266 Md. at 367, 293 A.2d at 246. Of course, the regulation alsopreserved the property in its natural state, thus providing Maryland with the substantialbenefits of the creek bed and partially submerged island at issue in the case.

168. See, e.g., id. at 362, 373-74, 293 A.2d at 243, 249 (noting the dredging effectson the water's turbidity and on diving ducks' attempts at feeding).

169. Id. The natural use theory promoted in this article can be looked at as merelyan improvement of the harm/benefit distinction. See infra text accompanying notes 177-222.

1988]



a particular segment have been entirely abrogated. In decidingwhether a particular governmental regulation has effected ataking, this Court focuses rather both on the character of theaction and on the nature and extent of the interference withrights in the parcel as a whole .... 17o

Many courts have used the Penn Central approach in caseswhere government regulation affects only a portion of a landown-er's property. For example, a New Jersey Superior Court uphelda filling restriction on eighty acres of a 2,500 acre parcel.17' Thecourt stated:

In the determination that the prohibition of deposit of dredgespoils on the 80-acre tract is not a "taking" we are not limitedto a consideration of the 80-acre tract per se; considerationmay be given of the entirety of the 2,500 acres. Each segmentis not to be viewed microscopically; rather, the vista mustencompass the whole. 172

The Court of Claims applied this same reasoning to developmentactivity on Florida's Marco Island in Deltona Corp. v. UnitedStates. 73 In rejecting a takings claim the court relied on the factthat the restricted lots were only twenty percent of the originalpurchases and that those lots included 111 acres of developableuplands. 174

D. Summary

Not surprisingly, the above discussion indicates that takingsanalysis in wetlands cases reflects the lack of an organizing prin-ciple in general takings doctrine. The courts have not developeda coherent method of determining when a wetlands regulation is

170. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 130-31, reh'g denied,439 U.S. 883 (1978) (emphasis added).

171. American Dredging Co. v. State Dep't of Envtl. Protection, 161 N.J. Super.504, 514, 391 A.2d 1265, 1270 (1978); see also Deltona Corp. v. United States, 657 F.2d1184, 1192 (Ct. Cl. 1981), cert. denied, 455 U.S. 1017 (1982) (noting that the Corps permitdenial affected less than 20% of the parcel); Jentgen v. United States, 657 F.2d 1210 (Ct.Cl. 1981), cert. denied, 455 U.S. 1017 (1982) (looking at the entire parcel-wetlands anduplands-in denying a takings claim).

172. American Dredging, 161 N.J. Super. at 514, 391 A.2d at 1270.173. 657 F.2d 1184 (Ct. Cl. 1981), cert. denied, 455 U.S. 1017 (1982).174. Id. at 1192.


Takings and Ecology

or is not a taking. Indeed, there seems to be no intelligible meansof determining even what the inquiry is supposed to be. As aresult, we are left with an unpredictable doctrine that courts feelfree to manipulate. 175

More importantly, those courts which have sought to protectwetlands have been compelled to justify their decisions by refer-ence to the language and assumptions of an economic, growth-oriented doctrine. This has not stopped all courts from upholdingenvironmental land-use controls, but it has prevented the courtsfrom explicitly defining rights in land by reference to the land'secological role. Only when the courts move away from their strictreliance on economics will they be able to focus openly on theecological importance of land and hold that an owner's relationshipto her land includes ecological obligations. The Wisconsin Su-preme Court's decision in Just v. Marinette County176 and the caseswhich have followed it indicate that a few courts already havebegun to adopt such a view.

IV. JUST V. MARINETTE COUNTY AND AN ECOLOGICALLY

SOUND NATURAL USE THEORY

A. Just v. Marinette County

In 1965, the Wisconsin legislature enacted the Water QualityAct 177 which, among other things, created a state-wide program of

175. There really is little other way to explain the divergent outcomes in wetlandstakings cases, except to surrender to the idea that "property," even when used in ourfederal Constitution, is whatever a state says it is. "Property interests... are not createdby the Constitution. Rather, they are created and their dimensions are defined by existingrules or understandings that stem from an independent source such as state law." Board ofRegents v. Roth, 408 U.S. 564, 577 (1972), quoted in Ruckelshaus v. Monsanto Co., 467U.S. 986, 1001 (1984). The ecological perspective offered in this article is based on thebelief that, regardless of whether property is defined by the state or federal government,rights in land should be defined (at least in part) by reference to the environmental sciences.

176. 56 Wis. 2d 7, 201 N.W.2d 761 (1972).177. Water Quality Act of 1965, ch. 614, Wis. STAT. ANN. §§ 59.971, 144.26 (West

1974 & Supp. 1987).

1988]



shorelands regulation. 178 Pursuant to this program, MarinetteCounty adopted Shoreland Zoning Ordinance Number twenty-fouron September 19, 1967.179 The ordinance divided shorelands intothree categories: general purpose districts, general recreation dis-tricts, and conservancy districts. 80 Certain uses of shorelandswere expressly permitted-wild crop harvesting, sustained yieldforestry, transmission lines, hunting and fishing, preservation, hik-ing or riding trails, and wildlife raising.' 8' The ordinance also de-fined conditional uses-uses conditioned on the issuance of a per-mit by the zoning board and, in some circumstances, by theWisconsin Department of Resource Development. These "condi-tional uses" included farming; damming or relocating any waterflow; filling, draining or dredging any wetlands; removing soil;operating a cranberry bog; and building piers, docks, orboathouses.

18 2

In 1961, six years before the Shoreland Zoning Ordinance waspassed, Ronald and Kathryn Just bought over thirty-six acres ofland near Lake Noquebay in Marinette County, with over 1200feet of lakefront. From 1964 to 1967, the Justs subdivided the landinto six parcels, selling five and retaining one. Under the ZoningOrdinance, the remaining parcel was categorized as "wetlands"'8 3

178. The statute defined shorelands as lands

within the following distances from the ordinary high-water mark of navigablewaters.... (a) One thousand feet from a lake, pond, or flowage. If the navig-able water is a glacial pothole lake, this distance shall be measured from thehigh-water mark of the lake, (b) three hundred feet from a river or stream orto the landward side of the flood plain, which ever distance is greater.

I'd. § 59.971(1); see also 12 Wis. ADMIN. CODE § [WDNR] 115.03 (May 1971) (WisconsinDepartment of Natural Resources standards). The legislature directed the Wisconsin De-partment of Natural Resources ("WDNR," formerly called the Wisconsin Department ofResource Development) to publish standards for counties to follow in enacting zoningordinances to regulate shorelands. Id. § [WDNR] 115.04. All counties must submit shore-land zoning ordinances to the WDNR for approval. If the state rejects the ordinance, or ifa county fails to enact a shoreland zoning ordinance, the WDNR may enact an ordinancefor the county. Wis. STAT. ANN. § 59.971(6) (West Supp. 1987).

179. ("Marinette County, Wis., Special Zoning Ordinance No. 24, § 3.40 (Sept. 19,1967); see also Just, 56 Wis. 2d at 9, 201 N.W.2d at 764.

180. Marinette County, Wis., Special Zoning Ordinance No. 24, § 3.40 (Sept. 19,1967).

181. Id. § 3.41.182. Id. § 3.42.183. Id. § 2.29. The ordinance defined "wetlands" as "[a]reas where ground water is

at or near the surface much of the year or where any segment of plant cover is deemed anaquatic according to N.C. Fassett's 'Manual of Aquatic Plants."' Id.


Takings and Ecology

within a conservancy district.184 Accordingly, the Justs were pro-hibited from profitably using their land unless they obtained a"Conditional Use Permit."

Without seeking such a permit, Ronald Just began filling wet-lands on his property. Marinette County sought to enjoin this fillingas a violation of the ordinance. The Justs counter-sued, claiming,among other things, that the ordinance was unconstitutional. Thetrial court agreed with the county, enjoined the Justs from fillingany more of their wetlands without a permit, and fined them $100.They appealed to the Wisconsin Supreme Court where the stateof Wisconsin intervened on behalf of the county-recognizing thatthe Justs were essentially challenging the statewide shoreland reg-ulation scheme.

The court viewed the case as a "conflict between the publicinterest in stopping the despoilation of natural resources, whichour citizens until recently have taken as inevitable and for granted,and an owner's asserted right to use his property as he wishes." 185

The court then proceeded to speak in general terms about inversecondemnation cases, emphasizing the harm/benefit distinction. Butthe court did not view the case as a generic inverse condemnationcase; it recognized the importance of ecology.

What makes this case different from most condemnation orpolice power zoning cases is the interrelationship of the wet-lands, the swamps and the natural environment of shorelandsto the purity of the water and to such natural resources asnavigation, fishing, and scenic beauty. Swamps and wetlandswere once considered wasteland, undesirable, and not pictur-esque. But as the people became more sophisticated, an ap-preciation was acquired that swamps and wetlands serve a vitalrole in nature, are part of the balance of nature and are essentialto the purity of the water in our lakes and streams. Swampsand wetlands are a necessary part of the ecological creationand now, even to the uninitiated, possess their own beauty innature. 186

After recognizing the ecological role of wetlands, the courtrephrased the issue: "Is the ownership of a parcel of land so

184. Just, 56 Wis. 2d at 11, 201 N.W.2d at 766. Accordingly, the Justs' land wasdesignated as swamps or marshes on the United Stdtes Geographical Survey maps.

185. Id. at 14-15, 201 N.W.2d at 767.186. Id. at 16-17, 201 N.W.2d at 768.

19881



absolute that man can change its nature to suit any of his pur-poses?" To the court, the question answered itself:

An owner of land has no absolute and unlimited right to changethe essential natural character of his land so as to use it for apurpose for which it was unsuited in its natural state and whichinjures the rights of others. The exercise of the police powerin zoning must be reasonable and we think it is not an unrea-sonable exercise of that power to prevent harm to public rightsby limiting the use of private property to its natural uses.18 7

The Wisconsin court thus explicitly adopted a theory of propertybased on the natural character of the land in question. In thecourt's view, wetlands were different than less ecologically im-portant types of land and deserved special treatment; the courtrefused to view all land in exclusively economic terms.

This, of course, is not enough; to recognize ecological differ-ences in property does not inform us as to what rights the ownersretain. For the Just court, the answer could be found in the publictrust duty of Wisconsin to keep its waters pure. This duty, whencoupled with the essential role of wetlands in purifying water,forced the court to uphold the public right in wetlands preserva-tion: "This is not a case of an isolated swamp unrelated to anavigable lake or stream, the change of which would cause noharm to public rights. Lands adjacent to or near navigable watersexist in a special relationship to the state."1 88

In many ways, the Just decision was not particularly unusual;the court implied that it would not overrule earlier cases wheretakings were found because in those cases "the unreasonablenessof the exercise of the police power lay in excessive restriction ofthe natural use of the land or rights in relation thereto."'18 9 Thus,flooding caused by a public utility's dam,190 prohibitions against

187. Id. at 17, 201 N.W.2d at 768.188. The public trust aspect of Just offers an easy way of distinguishing the case in

all states that have never recognized a duty to keep navigable waters clean. See WisconsinPower & Light Co. v. Public Serv. Comm'n, 5 Wis. 2d 167, 92 N.W.2d 241 (1958). Note,too, that wetlands not adjacent to navigable waters would thus not be covered by the Justdoctrine. Such a result ignores the ecological importance of nonnavigable wetlands, espe-cially for purifying groundwater and supplying valuable wildlife habitats. Cf. United Statesv. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), discussed infra text accompanyingnotes 251-58 (extending federal regulatory authority over "navigable waters" to nonnavig-able wetlands saturated only by groundwater).

189. Just, 56 Wis. 2d at 20, 201 N.W.2d at 769.190. Benka v. Consolidated Water Power Co., 198 Wis. 472, 224 N.W. 718 (1929).


Takings and Ecology

hunting that could lead to "unnatural" concentrations of wildlife, 191

and prohibitions against swimming or boating in a lake 92 were stillunconstitutional takings.193The Just court tried to reconcile itsholding with general takings law. For example, it addressed theharm/benefit distinction when it stated that preventing pollution"is not, in a legal sense, a gain or a securing of a benefit by themaintaining of the natural status quo of the environment.' ' 94 Thecourt also responded to the economic deprivation line of cases:

The Justs argue their property has been severely depreciatedin value. But this depreciation of value is not based on the useof the land in its natural state but on what the land would beworth if it could be filled and used for the location of a dwelling.While loss of value is to be considered in determining whethera restriction is a constructive taking, value based upon changingthe character of the land at the expense of harm to public fightsis not an essential factor or controlling.195

These attempts to reconcile the decision with past takings doctrineare of course a necessary part of the judicial function. Further,they help to show how a natural use theory does not depart radi-cally from existing conceptions of property. By addressing otherdoctrines, however, the Just court obscured its greatest insights:that land plays a unique role of critical importance to the public;and that the ownership of land does not carry with it the right todestroy this role.

B. Post-Just Cases

The Just case has received considerable academic attention, 96

and some courts have adopted its view of property. Courts in

191. See State v. Herwig, 17 Wis. 2d 442, 117 N.W.2d 335 (1962); State v. Becker,215 Wis. 564, 255 N.W. 144 (1934). The "unnatural" concentration presumably resultedfrom animals migrating from adjoining hunting lands to these "preserves."

192. Bino v. City of Hurley, 273 Wis. 10, 76 N.W.2d 571 (1956). The prohibitionagainst bathing, swimming, and boating was an attempt to keep the lake clean. Arguably,therefore, Bino was undercut by the recognition of the public trust duty to keep navigablewaters clean recognized two years later in Wisconsin Power & Light, and depended on inJust.

193. Just, 56 Wis. 2d at 19-20, 201 N.W.2d at 769.194. Id. at 16, 201 N.W.2d at 768.195. Id. at 23, 201 N.W.2d at 771.196. See, e.g., Large, supra note 2, at 1074-83; Savage & Sierchio, The Adirondack

Park Agency Act: A Regional Land Use Plan Confronts "The Taking Issue," 40 ALa. L.

1988]



Florida, 197 South Carolina, 198 New Hampshire, 199 and NorthCarolina 2 have approved of the natural use theory.201 Of theseother jurisdictions, New Hampshire has contributed most to thedoctrine, beginning with Sibson v. State.20 2

The facts in Sibson are typical. The Sibsons purchased sixacres of saltmarsh for $18,500 in 1968. They promptly filed twoacres and built a house. In 1972 they sold that lot, receiving $50,000for the house and $25,000 for the two acres. They subsequentlysought to fill their remaining four acres of salt marsh, but a 1973amendment to New Hampshire law20 3 clearly required a permit.After the state denied their permit application, the Sibsons ap-pealed first to a judicial referee and then to the New HampshireSupreme Court.

The judicial referee, as quoted by the court, found that the"unfilled portion of the marsh is of practically no pecuniary valueto the plaintiffs. ' '2 4 The court could easily have found a takingunder Holmes' economics-based Pennsylvania Coal analysis, butinstead it seemed to adopt the state's view that the Pennsylvania

REv. 447, 475-76 (1976); Developments in the Law-Zoning, supra note 19, at 1620-21.But see Bryden, A Phantom Doctrine: The Origins and Effects of Just v. Marinette County,1978 AM. B. FOUND. RESEARCH J. 397 (1978) (arguing that Just's practical effect is nil).

197. Graham v. Estuary Props., Inc., 399 So. 2d 1374 (Fla.), cert. denied, 454 U.S.1083 (1981).

198. Carter v. South Carolina Coastal Council, 281 S.C. 201, 314 S.E.2d 327 (1984).199. Claridge v. New Hampshire Wetlands Bd., 125 N.H. 745, 485 A.2d 287 (1984);

Sibson v. State, 115 N.H. 124, 336 A.2d 239 (1975), overruled on other grounds, Burrowsv. City of Keene, 121 N.H. 590, 601, 432 A.2d 15, 21 (1981); State v. McCarthy, 117 N.H.799, 379 A.2d 1251 (1977).

200. Smithwick v. Alexander, 17 Erv't Rep. Cas. (BNA) 2126 (E.D.N.C. 1982). InSmithwick, North Carolina's Eastern District Court viewed the takings issue within thetraditional rhetoric of "reasonable uses," but followed Just in holding that reasonable usesnecessarily include natural uses. In upholding an Army Corps denial of a dredging permitfor 20 acres of North Carolina marshland, the court stated:

Reasonable uses are not confined to the most commercially profitable uses,but necessarily include natural uses of the property as well. The denial of thepermit application in this case did not depreciate the value of plaintiff's prop-erty. Its value was the same after the denial as before. Nor did the denialchange the current use of the property.

Id. at 2131.201. Other courts have cited Just with approval, but they usually view it as presenting

the traditional harm/benefit test. See, e.g., Chokecherry Hills Estates, Inc., v. DeuelCounty, 294 N.W.2d 654, 657 (S.D. 1980).

202. 115 N.H. 124, 336 A.2d 239 (1975), overruled on other grounds, Burrows v.City of Keene, 121 N.H. 590, 601, 432 A.2d 15, 12 (1981).

203. N.H. REv. STAT. ANN. § 483-A:1-a (1983 & Supp. 1987).204. Sibson, 115 N.H. at 126, 336 A.2d at 240.


Takings and Ecology

Coal standard was "imprecise and unsuited to the problems in-volved in the preservation of wetlands. ' 20 5

An economics-based approach could also have been used touphold the restriction on narrow, factual grounds. The refereefound that the Sibsons received a reasonable return on their in-vestment through the 1972 sale of the two acres. 2 6 Thus "theirland was not rendered useless, ... they had only been deprivedof a speculative profit. '207 Nonetheless, the court preferred to limitits view of the case to the remaining four acres.

Having rejected any analysis based on economic conceptionsof property, the court turned to the now familiar harm/benefitdistinction and held that the state's actions constituted a validexercise of the police power. Denial of the permit was "not anappropriation of the property to a public use, but the restraint ofan injurious private use . ... 208 The court could have stoppedthere, but it .did not: Instead, the court embraced the natural usetheory of property proposed in Just:

Moreover, the rights of the plaintiffs in this case do not havethe substantial character of a current use. The denial of thepermit by the board did not depreciate the value of the marsh-land or cause it to become "of practically no pecuniary value."Its value was the same after the denial of the permit as beforeand it remained as it had been for milleniums. The refereecorrectly found that the action of the board denied plaintiffsnone of the normal traditional uses of the marshland includingwildlife observation, hunting, haying of marshgrass, clam andshellfish harvesting, and aesthetic purposes. The board has notdenied plaintiffs' current uses of their marsh but prevented amajor change in the marsh that plaintiffs seek to make forspeculative profit. "An owner of land has no absolute andunlimited right to change the essential natural character of his

205. Id. at 127, 336 A.2d at 241. The court, quoting from Goldblatt v. Town ofHempstead, 369 U.S. 590, 594 (1962), viewed any reduction in the economic value of landas just one factor to be considered: "There is no set formula to determine where regulationends and taking begins. Although a comparison of values before and after is relevant ...it is by no means conclusive .... Id. at 127, 336 A.2d at 241.

206. Cf. supra text accompanying notes 170-74 (discussing cases where permit de-nials are upheld because restricted wetlands are only part of the entire parcel).

207. Sibson, 115 N.H. at 127, 336 A.2d at 241; see also Steel Hill Dev., Inc., v.Town of Sanbornton, 469 F.2d 956 (1st Cir. 1972).

208. Sibson, 115 N.H. at 128, 336 A.2d at 242 (quoting Commonwealth v. Alger, 61Mass. (7 Cush.) 53, 85-86 (1851) (Shaw, C.J.)).

1988]



land so as to use it for a purpose for which it was unsuited inits natural state and which injures the rights of others. ' 2°9

In 1981 the New Hampshire Supreme Court seemed to with-draw from Sibson,210 but recent cases have revitalized it. Forexample, in State of New Hampshire Wetlands Board v. Mar-shall,211 the court in affirming Sibson also recognized the keydistinction between wetlands regulations and other land-use re-strictions: "In Sibson, we recognized the environmental unique-ness of wetlands and its importance to the public health and wel-fare. Unlike many other property regulation situations, the fillingof wetlands alters the property itself and changes its basic char-acter, to the detriment of the public good. 21 2

The New Hampshire courts thus recognize that owners ofland own different fights depending on their land's natural uses-in other words, the land's ecology. The opinions all emphasize theimportance of wetlands;21 3 the natural use approach enabled thecourt to blend its perception that wetlands are ecologically essen-tial with a unifying theory of property.214 Although the Sibson courtreferred to this theory at different times as "current uses" and"traditional uses," the basic idea is the same: private land ownersown a slice of an ecosystem-if not affirmatively obligated to

209. Id. at 129-30, 336 A.2d at 243 (quoting Just v. Marinette County, 56 Wis. 2d 7,17, 201 N.W.2d 761, 768 (1972)).

210. See Burrows v. City of Keene, 121 N.H. 590, 432 A.2d 15 (1981).211. 127 N.H. 240, 247-48, 500 A.2d 685, 689 (1985).212. Id.; see also Candlestick Properties, Inc. v. San Francisco Bay Conservation

& Dev. Comm'n, 11 Cal. App. 3d 557, 89 Cal. Rptr. 897 (1970). Written two years beforeJust, Candlestick Properties foreshadowed this particular aspect of the natural use theory.In upholding a restriction leaving a wetlands owner with no economic value, the courtdistinguished other cases by stating that the legislation was not meant merely to preserveopen space, but to "preserve the existing character of... [San Francisco Bay] while itdetermined how the bay should be developed in the future." Id. at 572, 89 Cal. Rptr. at906.

213. See, e.g., Sibson, 115 N.H. at 126, 336 A.2d at 240 ("In part the findingsconcluded that plaintiffs' four acres were part of a valuable ecological asset of the seacoastarea and that the proposed fill 'would do irreparable damage to an already dangerouslydiminished and irreplaceable natural asset."').

214. Note that Justice Grimes filed a partial dissent in the case. In his view, the statecould deny the permit only for the lands below the "mean high water mark of the AtlanticOcean ... because the State has an interest in the public waters which would be reducedby the fill." Id. at 130, 336 A.2d at 243 (Grimes, J., dissenting). This argument parallels thepublic trust view also found in the Just case. It thus suffers from the same infirmities; itfails to recognize the ecological law that what alters the land above the high-water markinevitably, and adversely, affects the "public waters," often just as much as activity belowthe mean high-water mark.


Takings and Ecology

protect the ecological role of their land, owners nonetheless donot have the right to alter the land's natural integrity by using itin a way that is incompatible with that role.

C. The Natural Use Theory's Relationship to Ecology

The natural use theory of property developed in the Just v.Marinette County line of cases successfully incorporates some keyprinciples of ecology. First, it recognizes that land, unlike muchof what we call property, is part of the natural ecosystem on whichwe depend. Second, the theory recognizes that land is at the baseof the ecological pyramid and that people's impact on land rever-berates throughout the ecosystem. More importantly, the theoryenforces the responsibility of landowners toward the ecosystemby denying them the "right" to destroy the land's ecologicalcapacity.

Examination of a paradigm case will illustrate the utility ofthe approach: the governing agency denies the wetlands owner adredging or filling permit because, upon reviewing the area, theagency finds that the wetlands are "ecologically important" andthat filling or dredging the wetlands will impair the ecological valueof the land. The property owner then sues, claiming that the gov-ernment action amounts to a taking. To make it an extreme butrealistic case, assume the property has no economic value if itcannot be dredged or filled. Under traditional takings doctrine, thecourt will probably find that there was a taking.

Under the natural use theory, the court would review theagency decision that the lands are ecologically important and thatthe plaintiff's plans involve a use that will destroy the property'secological value. Plaintiffs would be given a chance to prove thatthe agency's decision was arbitrary and capricious; 215 i.e., that theland has only negligible ecological value or that the planned usesof the land will have only negligible effects on the property'secology. A determination that the land is ecologically valuablewould result in a finding that there was no taking.

Now let's change the paradigm. Suppose that instead of deny-ing a development permit, the government tries to secure a public

215. For an example of this type of analysis, see 1902 Atlantic, Ltd. v. Hudson, 574F. Supp. 1381 (E.D. Va. 1983).

1988]



right of access to private lands. Under current conceptions ofproperty, unless the government can successfully invoke the publictrust doctrine or navigation servitude, the action undoubtedly willbe held to violate the takings clause. This result would not changeunder a natural use theory of property; the property owner's rightto exclude others would remain unchanged because the exerciseof that right would not adversely affect the land's ecology.

D. Implications for Traditional Takings Doctrine

In a sense, Just v. Marinette County and its successors merelyapply an improved version of the harm/benefit distinction. 216

Whereas the traditional harm/benefit test is malleable to the pointof offering no real limits on legislative or judicial value choices ,217

introduction of the environmental sciences into the test helps toprovide such limits. 21 8

Concerns over how far the public may encroach on privateproperty rights in the name of a natural use theory are met byanalyzing the limits of the ecological imperative. Although all landsare connected to the ecosystem, not all lands are as fragile andecologically essential as wetlands. Lands that are not consideredto be ecologically essential would not receive special treatmentunder a natural use theory. Similarly, lands that are determined tobe ecologically important (e.g., wetlands, riparian forests, tropical

216. The District Court of Maryland made this explicit:

In the instant case, the sewer-service moratoria ... constitute an attempt, notto create a public benefit, but to prevent a public harm to the natural characterof the waters of the state. In their natural state, the streams and rivers ... areunpolluted. Through the public trust doctrine, the State of Maryland has theduty of preserving the natural, unpolluted condition of these waterways. In alegal sense, the various moratoria orders, designed to prevent further overflowsof raw sewage into the streams and rivers of the state, serve not to secure abenefit, but to remedy a public harm which the state long ago had the duty toaddress.

Smoke Rise, Inc. v. Washington Suburban Sanitary Comm'n, 400 F. Supp. 1369, 1382 (D.Md. 1975).

217. See supra text accompanying notes 46-70.218. Among other things, the scientific aspect of the ecologically-driven harm/benefit

distinction offers private property owners more protection than they enjoy under thetraditional harm/benefit analysis. The claim that a use-restriction is ecologically compelledcan be tested in court; the claim that society simply prefers one type of use over anothercannot be so tested.


Takings and Ecology

rainforests) could be developed if development would not destroytheir ecological function. Only when denial of a permit is basedon the state's legitimate regulatory interest in protecting the eco-logical role of the land would a takings claim fail.

Of course, identification of ecologically critical lands may notalways be easy. But once protection of such lands is determinedto be a valid exercise of state regulatory power, the courts will beable to focus their constitutional inquiry in a way that leads togreater certainty for all concerned. Consistency in takings caseswill improve, because manipulation of legal rules will be moredifficult. Decisions in individual cases will be more predictable,because factual determinations will turn on objective scientificdata. Consistency in the application of legal rules and objectivebases for decisionmaking are particularly desirable in takings casesas predictability will reduce unfairness.

The utility of the natural use theory is apparent when naturaluse regulations are contrasted with other use restrictions (where,for example, society decides that it does not like breweries2 9 orcement factories220 near cities, or cedar trees near apple or-chards).221 In these other cases the malleability of the harm/benefitdoctrine is problematical because of the difficulty in determiningwhere to vest the right (e.g., in the cedar trees or the apple or-chards). With ecologically critical lands, the choice is imposed onus by the environment's inherent limitations on human activity.The right was vested by the laws of nature milleniums ago. Fur-thermore, the correctness of the decision can be measured againstthe tenets of the environmental sciences. 222

The preceding discussion of the natural use theory's implica-tions for traditional takings doctrine cannot be complete withouta discussion of two doctrines frequently raised as defenses intakings cases-the navigation servitude and public trust doctrine-both of which currently define the public's rights in certain typesof land. In addition to their importance as defenses in takingscases, the navigation servitude and public trust doctrine deserveour close attention because the courts have recently shown anincreasing ecological awareness in applying them. Although the

219. Mugler v. Kansas, 123 U.S. 623 (1887).220. Hadacheck v. Los Angeles, 239 U.S. 394 (1915).221. Miller v. Schoene, 276 U.S. 272 (1928)222. See supra text accompanying notes 6-29.

1988]



doctrines are mired in historical rhetoric that drastically curtailstheir ability to incorporate new advances in the environmentalsciences, they nonetheless offer an important opportunity to injectecologically sound principles into our land-use policies.

V. THE FEDERAL NAVIGATION SERVITUDE AND WETLANDSTAKINGS

The navigation servitude vests property rights in navigablewaters with the United States. 223 Although it is unclear how thenavigation servitude developed, it is probably best thought of asan adjunct to the commerce power.224 Historically, the servitudepermitted the public free and complete access to all navigablewaters and gave the federal government the right to regulate thosewaters and the underlying lands, thus denying all private propertyinterests in such areas. 22 Therefore, the navigation servitude is''an interest which permits the federal government to displace ordestroy state-recognized property rights in navigable waters...without having to pay compensation. '226

Before discussing the relationship between the navigation ser-vitude and takings analysis, it is necessary to understand the in-terplay between the federal regulatory authority over navigablewaters and the federal property interest associated with the navi-gation servitude. Until recently, these two federal interests were

223. Since at least 1851, the federal government has claimed an interest in all navig-able waters. See The Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443, (1851)(extending federal admiralty jurisdiction to the freshwater, navigable Great Lakes). Seealso generally Bartke, The Navigation Servitude and Just Compensation-Struggle for aDoctrine, 48 OR. L. REV. 1, 8 (1968). Note that the regulatory authority over navigablewaters may extend to waters not embraced by the navigation servitude. See Kaiser Aetnav. United States, 444 U.S. 164 (1979).

224. Cf Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713, 724-25 (1865):

Commerce includes navigation. The power to regulate commerce comprehendsthe control for that purpose, and to the extent necessary, of all the navigablewaters of the United States which are accessible from a State other than thosein which they lie. For this purpose they are the public property of the nation,and subject to all requisite legislation by Congress.

(emphasis added); see also United States v. Appalachian Elec. Power Co., 311 U.S. 377,426-27 (1940); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189 (1824).

225. See infra text accompanying notes 237-40 (discussing Kaiser Aetna v. UnitedStates, 444 U.S. 164 (1979)).

226. J. SAX & R. ABRAMs, LEGAL CONTROL OF WATER RESOURCES 96 (1986).


Takings and Ecology

thought to be coextensive. In Kaiser Aetna v. United States,227

however, the Supreme Court suggested that the federal regulatoryauthority extends further than the navigation servitude. This resultwas implicitly reaffirmed in the Court's most recent pronounce-ment on federal wetlands regulation-United States v. RiversideBayview Homes, Inc.228

A. The Navigation Servitude Before Kaiser Aetna

Prior to Kaiser Aetna, it seemed that no private propertyrights could stand in the way of the federal government's naviga-tion servitude. At various times the Court has stated that: "[T]hepower [of the servitude] is a dominant one which can be assertedto the exclusion of any competing or conflicting one"; 229 "therunning water in a great navigable stream is [incapable] of privateownership"; 20 and "[w]hen the [g]overnment exercises this ser-vitude, it is exercising its paramount power in the interest ofnavigation, rather than taking the private property of anyone." 231

As a result of these statements, lower courts frequently re-fused to find takings where the federal government was "merely"exercising the navigation servitude power. These lower court de-cisions were often perfunctory and conclusory. Zabel v. Tabb232 isa good example. In Zabel, two owners of land underlying thenavigable waters of Florida's Boca Ciega Bay applied to the ArmyCorps for a permit to fill eleven acres of submerged tidelands.Although the landowners raised a takings claim, the primary issuewas whether the government had authority under section ten ofthe Rivers and Harbors Act233 to deny dredge and fill permits fora purely ecological reason-namely, to protect the wildlife in thenavigable waters. In the court's words, the issue presented was

227. 444 U.S. 164 (1979).228. 474 U.S. 121 (1985).229. United States v. Twin City Power Co., 350 U.S. 222, 224-25 (1956).230. Kaiser Aetna, 444 U.S. at 175 (quoting United States v. Chandler-Dunbar Co.,

229 U.S. 53, 69 (1913)).231. United States v. Kansas City Life Ins. Co. 339 U.S. 799, 808 (1950). The Court

continued, "[the owner's use of property riparian to a navigable stream long has beenlimited by the right of the public to use the stream in the interest of navigation." Id.

232. 430 F.2d 199 (5th Cir. 1970).233. 33 U.S.C. § 403 (1982).

1988]



whether the Corps could include conservation considerations asconditions to approving the proposed project. 234

Writing in the early seventies, the Fifth Circuit showed asurprisingly heightened environmental awareness 235 This aware-ness undoubtedly contributed to its decision that the governmenthad the power to deny a filling permit simply in order to protectwildlife. Zabel was the first case to extend the federal interest innavigable waters to ecological concerns having no relation what-soever to navigation. In so holding, the court recognized andupheld the government's responsibility to protect the environment.More importantly, the court paved the way for the Corps to pre-serve valuable environmental resources by blocking ecologicallydisastrous projects.

This extension of the federal regulatory authority is not threat-ened by Kaiser Aetna, as the Zabel court also denied the takingsclaim on the ground that the navigation servitude and the regula-tory authority were coextensive. The court needed only one shortparagraph to dispense with the fifth amendment issue: "Our dis-cussion of this contention begins and ends with the idea that thereis no taking. The waters and underlying land are subject to theparamount servitude in the federal government .... "236

B. Kaiser Aetna and Beyond

The continued vitality of the takings analysis in Zabel andperhaps of the navigation servitude generally is now in doubt. In

234. Zabel, 430 F.2d at 207.235. In addition to quoting the barely relevant National Environmental Policy Act

in its entirety, the court stated:

The establishment was entitled, if not required, to consider ecological factorsand, being persuaded by them, to deny that which might have been grantedroutinely five, ten, or fifteen years ago before man's explosive increase madeall, including Congress, aware of civilization's potential destruction frombreathing its own polluted air and drinking its own infected water and theimmeasurable loss from a silent-spring-like disturbance of nature's economy.

Id. at 201.236. Id. at 215; see also United States v. Appalachian Elec. Power Co., 311 U.S.

377, 424 (1940) ("The flow of a navigable stream is in no sense private property .... ");United States v. Lewis, 355 F. Supp. 1132, 1141 (S.D. Ga. 1973) ("[Tlhe exercise of federalregulatory authority over lands below ordinary high water mark is not an invasion ofcompensable property rights. There is 'no taking' in such a case.").



1979, the Supreme Court suggested in Kaiser Aetna that the nav-igation servitude did not create a "blanket exception" to the fifthamendment. 237 Specifically, the Court ruled that if the governmentwanted to grant the public access to what was formerly a privatepond, it could only do so through eminent domain.

The facts in Kaiser Aetna are important. The case involvedKuapa Pond, a lagoon in Hawaii contiguous to the Pacific Oceanbut separated from it by a barrier beach. Such ponds have alwaysbeen considered private property under Hawaiian law. In 1961,Kaiser Aetna, with Corps permission, excavated a channel so thatboats could pass between the pond and the ocean. In 1972, theCorps demanded that Kaiser Aetna permit public access to thepond because, as a result of the improvements, the pond wassubject to the navigation servitude. 238

Kaiser Aetna is important because the Court indicated thatthe federal regulatory authority over navigable waters extendedfurther than did the navigation servitude. 239 Whereas the Corpscould regulate the plaintiff's pond, the public did not have a rightof access to it. Kaiser Aetna paved the way for courts to applynormal takings analysis in evaluating federal regulatory authorityover at least nonnavigable wetlands.240

237. Kaiser Aetna v. United States, 444 U.S. 164, 172 (1979).238. The fact that the property owner's efforts transformed what was indisputably a

private pond under Hawaii's unique property laws into navigable waters may distinguishKaiser Aetna from most other navigation servitude cases. Indeed in a companion case,Vaughn v. Vermillion Corp., 444 U.S. 206 (1979), the Court reaffirmed Kaiser Aetna butremanded for a determination of whether the canals at issue had been formed by divertingor destroying a "natural navigable waterway." The Court noted that proof of such diversionor destruction would justify extension of the servitude to the canals.

239. The Court stated that:

We have not the slightest doubt that the Government could have refused toallow such dredging on the ground that it would have impaired navigation inthe bay, or could have conditioned its approval of the dredging on petitioners'agreement to comply with various measures that it deemed appropriate for thepromotion of navigation.

Kaiser Aetna, 444 U.S. at 179. The Court then relied on Kaiser Aetna's expectations thatit would be able to exclude the public after incurring the dredging expenses. Any attemptby the government to procure a public easement to use the land would have to be paid for.Note that the property right involved was the right to exclude the unwelcome public. Bypermitting access, the Court would have been allowing an intrusion closely akin to physicalinvasion.

240. Note that the navigation servitude may still block a takings claim where navig-able wetlands are at stake. Thus, cases like Zabel may still be valid.



The inevitable occurred in 1983, when a district court for thefirst time found a taking in a federal wetlands case. In 1902 Atlan-tic, Ltd. v. Hudson,24' the Corps denied a permit to fill an artifi-cially constructed, nonnavigable borrow-pit. In addition to findingthat the denial was arbitrary and capricious, 242 the court appliedtraditional takings doctrine to find that the permit denial was ataking. It relied heavily on the finding that "without a permit tofill the borrow pit, no economically viable use c[ould] be made ofthe pit. ' 243 The court rejected the Corps' navigation servitudeargument on the ground that the borrow pit had no connection tonavigation.

244

1902 Atlantic may be a signal that other courts will apply thenavigation servitude less often, but it may ultimately be limited toits unique facts: the borrow pit, and thus the wetlands, wereartificially made;245 the proposed project would result in no netdestruction of wetlands ;246 the wetlands provided only "negligible"flood damage protection; 247 the project would not adversely effectwater quality;248 and the borrow pit had no historical or recrea-tional value.249 The court emphasized the unusual circumstancesin the case when it stated that "The factual situation in this caseis so different from typical wetlands cases as to make it distin-

")250guishable on its facts from those cases ....Although the Supreme Court has yet to rule on whether the

post-Kaiser Aetna navigation servitude extends to land adjacentto navigable waters, recent dicta indicates that it probably doesnot. In United States v. Riverside Bayview Homes, Inc.,251 anowner of eighty acres of marsh property near Michigan's Lake St.Clair filled his land in anticipation of constructing a large housingproject. The Corps sought to enjoin this activity until the respon-dent obtained a permit. According to the Corps, the property was

241. 574 F. Supp. 1381 (E.D. Va. 1983).242. Id. at 1404.243. Id. at 1405.244. The court found that "the plaintiff's borrow pit is not navigable in fact, and is

incapable of use as a continuous highway for the purpose of navigation in interstatecommerce." Id.

245. Id. at 1384.246. Id. at 1400-01.247. Id. at 1400.248. Id. at 1401.249. Id. at 1401-02.250. Id. at 1405 n.19.251. 474 U.S. 121 (1985).



an "adjacent wetland" as defined in regulations implementing theClean Water Act. 2 z The respondent challenged the Corps' exerciseof jurisdiction on the grounds that the property was not an "adja-cent wetland" within the meaning of the Corps' definition and thatthe regulations were an invalid interpretation of the Clean WaterAct.

Although the property supported wetlands vegetation, the soilwas saturated only with groundwater2 3 Nonetheless, the Courtruled that the respondent's property met the regulatory definitionof a "wetland adjacent to a navigable waterway."' 254 It then upheldthe regulation as a valid construction of the term "waters of theUnited States" as used in the Clean Water Act. 255 In so doing, theCourt extended federal authority to protect the hydrologic cycle. 216

This interpretation of the Corps' regulatory authority was ecolog-ically sound because it recognized the futility of trying to protectnavigable waters without protecting the lands that affect waterquality.2 7

252. 40 Fed. Reg. 31,320 (1975). The Sixth Circuit rejected the Corps' assertion ofjurisdiction over the respondent's property by construing the regulatory definition of "ad-jacent wetlands" as excluding wetlands not flooded by adjacent surface waters. UnitedStates v. Riverside Bayview Homes, Inc. 729 F.2d 391 (6th Cir. 1984), rev'd, 474 U.S. 121(1985). The court chose this narrow construction to avoid what it saw as imminent andserious takings problems.

253. The lower court also found that the "respondent's property was adjacent to abody of navigable water, since the area characterized by saturated soil conditions andwetland vegetation extended beyond the boundary of respondent's property to Black Creek,a navigable waterway." Riverside Bayview Homes, 474 U.S. at 131.

254. Id.; see also 33 C.F.R. §§ 323.2, 328.3 (1985).255. 33 U.S.C. § 1362(7) (1982).256. The Court reserved the question of whether the Corps could regulate the filling

of wetlands "not adjacent to bodies of open water .... Riverside Bayview Homes, 474U.S. at 131 n.8; see also 33 C.F.R. § 328.3 (1987).

257. The Corps' findings, accepted by the Court, are a model in ecologically soundpolicymaking because they recognize the hydrologic cycle's interconnectedness:

The regulation of activities that cause water pollution cannot rely on ...artificial lines ... but must focus on all waters that together form the entireaquatic system. Water moves in hydrologic cycles, and the pollution of thispart of the aquatic system, regardless of whether it is above or below anordinary high water mark, or mean high tide line, will affect the water qualityof the other waters within that aquatic system.

For this reason, the landward limit of federal jurisdiction under Section404 must include any adjacent wetlands that form the border of or are inreasonable proximity to other waters of the United States, as these wetlandsare part of this aquatic system.

Riverside Bayview Homes, 474 U.S. at 133 (quoting 42 Fed. Reg. 37,128 (1977)).



Riverside Bayview Homes is not a takings case, but by ex-tending the Corps' Clean Water Act jurisdiction to wetlands theSupreme Court increased the future number of federal takingsclaims. The Court thus felt compelled to address, in dicta, thetakings issue. Not surprisingly, it supported the application oftraditional takings doctrine to federal regulations over wetlands:"Whether the denial of a permit would constitute a taking in anygiven case would depend upon the effect of the denial on theowner's ability to put the property to productive use." 8

This indicates that the public's interest in the navigation ser-vitude will not be extended to privately owned wetlands. TheCourt's analysis is unfortunate, but not surprising given the equallyunfortunate holding in Kaiser Aetna. The result will be continuingtension between economics-based property conceptions and theneed to protect the role of wetlands in the hydrologic cycle. BeforeKaiser Aetna, the navigation servitude offered a means of avoid-ing, albeit not reconciling, this conflict.2Y9 Kaiser Aetna and Riv-erside Bayview Homes have diminished the usefulness of the nav-igation servitude for injecting ecologically sound policies intotakings jurisprudence.

Although this article argues for a new, broader conception ofproperty based on a recognition of the ecological importance ofland, a moderate extension of the navigation servitude would bean alternative means of bringing federal takings doctrine into bal-ance with the ecology of the hydrologic cycle. Moreover, such anextension of the navigation servitude could be reconciled withKaiser Aetna, which involved public access to private wetlands.Public access to wetlands is in no way ecologically compelled.260

Thus cases such as Zabel, in which the government denies aconstruction permit in order to protect ecologically critical land,would entail no taking; cases like Kaiser Aetna, in which the

258. Id. at 127 n.4. The decision thus both opens and closes the door on an ecolog-ically sound policy towards wetlands.

259. Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970).260. If the courts look to environmental science and the preservation of land's

ecological integrity as the standard by which regulations should be judged, the privatelandowner's right to exclude the public from her land would not be infringed. Public accesswould in no way preserve the ecological integrity of land, and might actually lead to atypical "tragedy of the commons" with its concomitant overutilization of the land. SeeHardin, The Tragedy of the Commons, 162 SCIENCE 1243 (1968).


Takings and Ecology

government attempts to secure access to private property, wouldconstitute a taking.2 61

This same distinction between public rights of access andpublic rights to ecological integrity appears again in the followingdiscussion of the public trust doctrine. The section shows how anecological view of property can "liberate the public trust doctrinefrom its historical shackles. '26 2

VI. THE PUBLIC TRUST DOCTRINE

The public trust doctrine is a state doctrine263 somewhat anal-ogous to the federal navigation servitude in that it recognizespublic rights in private property-most often property underlyingnavigable waters. The public trust doctrine permits the states toavoid traditional takings inquiries when they are merely fulfillingtheir obligations as trustees of the public's interest in private lands.The doctrine is important because it empowers states to placeonerous regulations on certain lands-most frequently tidelands-while successfully avoiding the takings problem. It also has greatpotential for injecting a land ethic into property law. This potentialis being realized in several recent lines of cases that have extendedthe reach of the public trust doctrine to certain ecologically im-portant lands.

A. Background: Historical Limits to the Public Trust Doctrine

So much has been written recently on the historical develop-ment of the public trust doctrine that only a brief analysis is

261. Cases like Zabel and Kaiser Aetna can also be distinguished if permitting publicaccess to the property is viewed as a physical trespass. Cf. supra text accompanying notes35-45 (discussing the courts' wooden dislike for physical invasions of property).

262. The phrase is borrowed from Sax, Liberating the Public Trust Doctrine FromIts Historical Shackles, 14 U.C. DAvis L. Rv. 185 (1980).

263. See District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1084 (D.C. Cir.1984) (refusing to decide whether the public trust doctrine applied to the federal govern-ment). But see United States v. 1.58 Acres of Land, 523 F. Supp. 120, 124-25 (D. Mass.1981) (holding that land below the low-water mark is part of the public trust of both thefederal and state governments and should be jointly administered); In re Steuart Transp.Co., 495 F. Supp. 38, 40 (E.D. Va. 1980) (applying the public trust doctrine to both Virginiaand the United States).

1988]


368 Harvard Environmental Law Review [Vol. 12:311

necessary here. 264 The public trust is rooted in the Roman conceptof common property (res communis): "By the law of nature thesethings are common to mankind-the air, running water, the seaand consequently the shores of the sea.126 First English266 andthen American267 common law applied this idea of common prop-erty interests to certain natural resources-most notably navigablewaters and the lands "below the mean high water mark. ' '268 Theseresources could only be transferred to private ownership subjectto the public's property interest in them. The public's interestextended only to certain traditional uses-navigation, commerceand fishing.2 69

In Illinois Central Railroad Co. v. Illinois,270 the SupremeCourt refused to allow a state to divest itself of the trust byalienating public lands. The case involved a state grant of over athousand acres of Lake Michigan bottomland to the railroad. Four

264. The seminal article on the public trust doctrine is Sax, The Public Trust Doctrinein Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 471 (1970).For a concise review of the doctrine's historical evolution, see Stevens, The Public Trust:A Sovereign's Ancient Prerogative Becomes the People's Environmental Right, 14 U.C.DAvis L. REV. 195 (1980); see also, e.g., Sax, Private Property, supra note 31; Wilson,The Public Trust Doctrine in Massachusetts Land Law, 11 B.C. ENVTL. AFF. L. REV. 839(1984); Wilson, Private Property and the Public Trust: A Theory for Preserving the CoastalZone, 4 U.C.L.A. J. ENVTL. L. & POL'Y 57 (1984); Note, The Public Trust in Tidal Areas:A Sometimes Submerged Judicial Doctrine, 79 YALE L.J. 762 (1970); The Public TrustDoctrine in Natural Resources Law and Management: A Symposium, 14 U.C. DAVIS L.REV. 181 (1980).

265. National Audubon Soc'y v. Superior Court of Alpine County, 33 Cal. 3d 419,433, 658 P.2d 709, 718, 189 Cal. Rptr. 346, 355 (1983) (quoting J. INsT. 2.1.1); see also J.SAX, DEFENDING THE ENVIRONMENT: A STRATEGY FOR CITIZEN ACTION 164 (1970)(quoting R. Lee) ("Under the Roman law ... 'the shore was not owned by individuals.One text suggests that it was the property of the Roman people. More often it is regardedas owned by no one, the public having undefined rights of use and enjoyment.").

266. See J. SAX, supra note 265, at 164 (quoting R. Hall) (.'[T]he ownership of theshore, as between the public and the King, has been settled in favor of the King: but ...this ownership is, and had been immemorially, liable to certain general rights of egress andregress, for fishing, trading, and other uses claimed and used by his subjects."').

267. See Martin v. Waddell's Lessee, 41 U.S. (16 Pet.) 367, 410 (1842) ("[W]hen theRevolution took place, the people of each state became themselves sovereign; and in thatcharacter hold the absolute right to all their navigable waters and the soils under them fortheir own common use .... "). Each state that came into the Union after the Revolutionobtained the same rights through the "equal footing doctrine." See, e.g., California ex rel.State Lands Comm'n v. United States, 457 U.S. 273, 281 n.9 (1982); Pollard's Lessee v.Hagan, 44 U.S. (3 How.) 212, 219 (1845).

268. The Supreme Court has defined the "mean high watermark" as "the averageheight of all the high waters at that place over.., a period of 18.6 years." Borax Consol.,Ltd. v. City of Los Angeles, 296 U.S. 10, 26-27, reh'g denied, 296 U.S. 664 (1935).

269. Marks v. Whitney, 6 Cal. 3d 251, 259, 491 P.2d 374, 380, 98 Cal. Rptr. 790, 796(1971).

270. 146 U.S. 387 (1892).


Takings and Ecology

years after the sale the state recanted and sued to have the grantinvalidated. The Court did invalidate the grant, at least in part onthe ground that state ownership of shorelands was somehow dif-ferent from that of other land:

[The] title [is] different in character from that which the stateholds in lands intended for sale .... It is a title held in trustfor the people of the state that they may enjoy the navigationof the waters, carry on commerce over them, and have libertyof fishing therein freed from the obstruction or interferences ofprivate parties. 271

Illinois Central thus invited state courts to check arbitrarypublic land give-aways. Later cases have interpreted Illinois Cen-tral to offer a two-part test for determining when a legislative grantof public trust resources is valid: "One, is the grant in aid ofnavigation, commerce or other trust purposes, and two, does itsubstantially impair the public interest in the lands and watersremaining?" 272 Some state courts, such as those in Minnesota27 3

and Tennessee, 274 prohibit outright the alienation of trust lands.Other states, such as Wisconsin 275 and Massachusetts, 276 permitthe legislature to alienate trust land only by a clear, explicit, andopen showing of intent. Finally, some states, such as Idaho277 andCalifornia, 278 permit alienation of trust lands, but the lands are

271. Id. at 452.272. Kootena Envtl. Alliance v. Panhandle Yacht Club, Inc., 105 Idaho 622, 626,

671 P.2d 1085, 1089 (1983).273. See State v. Korrer, 127 Minn. 60, 148 N.W. 1095 (1914).274. See State ex rel. Cates v. West Tenn. Land Co., 127 Tenn. 575, 158 S.W. 746

(1913).275. See State v. Public Serv. Comm'n, 275 Wis. 112, 81 N.W.2d 71 (1957); In re

Crawford County Levee & Drainage Dist. No. 1, 182 Wis. 404, 196 N.W. 874, cert. denied,264 U.S. 598 (1924); see generally Sax, supra note 264, at 509-23 (discussing Wisconsin'sdevelopment of the "concept that public trust lands can be devoted to private uses only ifthere is a clear justification for the change.").

276. See Sacco v. Department of Pub. Works, 352 Mass. 670, 227 N.E.2d 478 (1967);Gould v. Greylock Reservation Comm'n, 350 Mass. 410, 215 N.E.2d 114 (1966). Seegenerally Sax, supra note 264, at 491-502 ("[The Massachusetts court has developed arule that a change in the use of public lands is impermissible without a clear showing oflegislative approval." Id. at 492); Wilson, supra note 264.

277. See Kootenai Envtl. Alliance v, Panhandle Yacht Club, Inc., 105 Idaho 622,671 P.2d 1085 (1983).

278. National Audubon Soc'y v. Superior Court, 33 Cal. 3d 419, 658 P.2d 709, 189Cal. Rptr. 346, cert. denied sub nom., Los Angeles Dep't of Water & Power v. NationalAudubon Soc'y, 464 U.S. 977 (1983).

1988]



subject to the public trust forever and the state is not precludedfrom determining whether a conveyance is in the public interest. 27 9

In addition to restricting government action, the public trustdoctrine also restricts private landowners. Courts have forcedowners of certain trust lands-primarily tidelands-to provide ac-cess to the public.280 This right of access is most prominent in NewJersey281 and California. 282 The courts more recently have begunto restrict private uses of trust lands. For example, building per-mits have been granted only on the condition that private uses notinterfere with the public's interest, 283 and private water rights havebeen held subject to the trust.284

279. These judicially-imposed restraints on governmental alienation of trust landsare often motivated by concerns of legislative self-dealing. The public trust doctrine is thusseen as a check on the ability of officials to give friends and supporters valuable publiclands. See generally Sax, supra note 264. But note that there is no inherent reason whythe courts must find fraud, self-dealing or other illicit motives to hold legislative alienationof commonly held resources to a higher level of scrutiny. Even if we assume that privati-zation of certain trust lands did indeed reflect the will of the majority of citizens currentlyliving, the courts should be more protective of future generations who have no voice incurrent lawmaking, but suffer nonetheless from shrinking common property resources.

280. Public rights of access can also be established in several other ways. First, ofcourse, is the federal navigation servitude discussed supra text accompanying notes 223-62. Second, adverse possession permits one person to gain title to the property of another,but only if the use is continuous, open, notorious, exclusive and hostile. J. DUKEMINIER& J. KRIER, PROPERTY 94-95 (1981). These criteria will undoubtedly not be met very oftenin the context of pubic use of lands, given that public use is often permitted and is neverexclusive. Third, the public could gain a prescriptive easement in private property throughthe regular use of the property. See, e.g., Gion v. Santa Cruz, 2 Cal. 3d 29, 465 P.2d 50,84 Cal. Rptr. 162, (1970) (applying an "implied dedication" doctrine, where the beach wasused for more than five years with the owner's knowledge and acquiescence). Finally, thereis custom, which grants the public a right in private property where the public has alvaysused the lands. Custom formed the basis for the grant of public access to all the dry sandbeaches of Oregon. See State ex rel Thornton v. Hay, 254 Or. 584, 595-97, 462 P.2d 671,677 (1969); see also Knowles v. Dow, 22 N.H. 387, 409 (1851) (upholding on the basis ofcustom the public's right to enter private property to collect seaweed); Application ofAshford, 50 Haw. 314, 440 P.2d 76 (1968) (relying on Hawaiian custom, which set coastalproperty boundaries at vegetation line to grant beach access).

281. See, e.g., Neptune City v. Avon-by-the-Sea, 61 N.J. 296, 294 A.2d 47 (1972);Matthews v. Bay Head Improvement Ass'n, 95 N.J. 306, 471 A.2d 355 (1984).

282. See, e.g., Whaler's Village Club v. California Coastal Comm'n, 173 Cal. App.3d 240, 220 Cal. Rptr. 2 (1985); see also Montana Coalition for Stream Access v. Curran,682 P.2d 163 (Mont. 1984); Montana Coalition for Stream Access v. Hildreth, 684 P.2d 1088(Mont. 1984).

283. See, e.g., Grupe v. California Coastal Comm'n, 166 Cal. App. 3d 148, 212 Cal.Rptr. 578 (1985) (upholding California's conditions on a landowner's development permitthat the landowner provide a public easement across the property to a beach); Just v.Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761 (1972) (denying a filling permit where thefilling would effect the public's right in navigable waters).

284. National Audubon Soc'y v. Superior Court, 33 Cal. 3d 419, 658 P.2d 709, 189Cal. Rptr. 346, cert. denied sub noma., Los Angelos Dep't of Water & Power v. NationalAudubon Soc'y, 464 U.S. 977 (1983).


Takings and Ecology

The public trust doctrine, like the navigation servitude, oftenacts as a complete bar to takings claims. Because it is based onthe concept of common ownership and embodies the principle ofstewardship, it has the potential to contribute to an ecologicallysound property law. Unfortunately, however, the doctrine has beenlimited by its historical roots. Courts, when faced with a publictrust claim, look to the historical development of property in thestate to see whether the property is subject to a trust.285 Such aninquiry obscures the real issue of which types of property shouldbe held in common and why. The answer should not lie in ananalysis of ancient land grants, but rather in an analysis of currentviews of land. Getting the courts to switch the debate to morerelevant concerns-such as the property owner's expectations indeveloping the land or the public's expectations in preserving theland as common property-would itself be a positive first step inintegrating the doctrine into a general property theory. Nothinginherent in the public trust doctrine necessitates a purely historicalmode of analysis or its current narrowness.

The courts are beginning to agree. Recent cases have extendedthe public trust doctrine both to new types of land and to newuses of land. The District of Columbia Circuit recently noted thedoctrine's flexibility:

Recently, courts and commentators have found in the [publictrust] doctrine a dynamic common-law principle flexible enoughto meet diverse modem needs. The doctrine has been expandedto protect additional water-related uses such as swimming andsimilar recreation, aesthetic enjoyment of rivers and lakes, andpreservation of flora and fauna indigenous to public trust lands.It has evolved from a primarily negative restraint on states'ability to alienate trust lands into a source of positive stateduties.286

The public trust is best analyzed by focusing on two separatequestions: first, which types of interests are protected by the publictrust doctrine; second, which lands are subject to the trust? These

285. See, e.g., Summa Corp. v. California ex rel State Lands Comm'n, 466 U.S. 198(1984); Livingston, Ownership of Virginia's Submerged Lands; Commonwealth v. Morganand Beyond, 4 VA. J. NAT. RESOURCES L. 325 (1985).

286. District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1083 (D.C. Cir. 1984).

19881



questions are discussed below in light of our quest for an ecolog-ically coherent theory of property.

B. Marks v. Whitney: Extending the Purposes of the PublicTrust Doctrine

In Marks v. Whitney,287 a private landowner claimed, as amember of the public, 288 rights in a neighbor's land. Whitneysought to stop Marks from filling and developing Marks' tidelandsbecause in his view such action violated the public's right in thetidelands .289

The court unanimously upheld Whitney's claim and ex-pounded on the scope of the public's right generally. The courtdid not stop at listing the traditional public interests in the land;2 0

it infused into the public trust doctrine a new-found flexibility:

The public uses to which tidelands are subject are sufficientlyflexible to encompass changing public needs .... There is agrowing public recognition that one of the most important pub-lic uses of the tidelands-a use encompassed within the tide-lands trust-is the preservation of those lands in their naturalstate, so that they may serve as ecological units for scientificstudy, as open space, and as environments which provide foodand habitat for birds and marine life, and which favorably affectthe scenery and climate of the area.291

287. 6 Cal. 3d 251, 491 P.2d 374, 98 Cal. Rptr. 790 (1971).288. The trial court held that Whitney lacked standing to invoke the public trust

doctrine. The California Supreme Court reversed, stating that if Marks were permitted todevelop the tidelands, he would be "taking away from Whitney rights to which he is entitledas a member of the general public." Id. at 261, 491 P.2d at 381, 98 Cal, Rptr. at 797 (notingalso that the court could have raised this issue on its own).

289. The precise posture of the case made Whitney the defendant. It was a "quiettitle action ... to enjoin ... [Whitney] from any claim or right in or to the property ......Id. at 256, 491 P.2d at 377, 98 Cal. Rptr. at 793.

290. The court first noted that:

Public trust easements are traditionally defined in terms of navigation, com-merce and fisheries. They have been held to include the right to fish, hunt,bathe, swim, to use for boating and general recreation purposes the navigablewaters of the state, and to use the bottom of the navigable waters for anchoring,standing, or other purposes. The public has the same rights in and to tidelands.

Id. at 259, 491 P.2d at 377, 98 Cal. Rptr. at 796 (citations omitted).291. Id.


Takings and Ecology

Although Marks did not involve an attempt to protect anyspecific uses, its dissertation on the public trust's purpose hasbeen accepted in later California cases. For example, in NationalAudubon Society v. Superior Court ("the Mono Lake case"), 292 theCalifornia Supreme Court clearly held that protecting the ecolog-ical integrity of the land was within the purpose of the public trustdoctrine. After reciting the above language of Marks, the courtstated:

The principal values plaintiffs seek to protect ... are recrea-tional and ecological-the scenic views of the lake and itsshore, the purity of the air, and the use of the lake for nestingand feeding by birds. Under [Marks] . . . , it is clear that pro-tection of these values is among the purposes of the publictrust.2 93

Marks and the Mono Lake case thus recognize a public rightto the preservation of California tidelands in their natural state.Moreover, Marks is based at least in part on the ecological impor-tance of tidelands. In short, tideland owners in California ownsomething different than upland owners. Tideland owners owntheir land subject to a common easement which can prevent theowner from upsetting the natural balance of the land. Owners ofCalifornia forest lands, on the other hand, are as yet subject to nosuch easement. What accounts for this difference? The reason ishistorical-the courts have been more willing to expand the pur-poses of the public trust in cases involving lands traditionallysubject to the doctrine, such as tidelands, navigable waters, andsubmerged lands. Even the Marks court showed a reluctance todepart from the doctrine's historical association with "the shoresof bays and navigable streams as far up as tide water goes anduntil it meets the lands made swampy by the overflow and seepageof freshwater streams. '294 The court thought it necessary to statethat "[n]o issue is here presented of swamp or overflowed lands." 295

292. 33 Cal. 3d 419, 658 P.2d 709, 189 Cal. Rptr. 346, cert. denied sub. nom., LosAngeles Dep't of Water & Power v. National Audubon Soc'y, 464 U.S. 977 (1983). TheMono Lake case is discussed more fully infra text accompanying notes 302-05.

293. National Audubon Soc'y, 33 Cal. 3d at 435, 658 P.2d at 719, 189 Cal. Rptr. at356.

294. Marks v. Whitney, 6 Cal. 3d 251, 259, 491 P.2d 374, 380, 98 Cal. Reptr. 790,796 (1971).

295. Id.

1988]



There is no inherent reason, however, why the public trustdoctrine as expounded in Marks should not protect all ecologicallyimportant lands; for example, freshwater wetlands or riparian for-ests. If one of the purposes of the public trust is to protect theland's ecological integrity, 96 then ecology should be relevant todefining which lands are subject to the trust. Those lands associ-ated with particularly significant or scarce ecological resourceswarrant stewardship on behalf of the public and should be grantedprotection. The courts are finally beginning to adopt this reasoningand are expanding the public trust to encompass new types ofland.

C. Extending the Ecological Scope of the Public Trust Doctrine

In Phillips Petroleum Co. v. Mississippi,297 the Supreme Courtrecently upheld Mississippi's extension of the public trust doctrineto lands underlying nonnavigable tidal areas. The petitioners in thecase brought a quiet title suit to contest state issuance of oil andgas leases 298 for the property in question. The state claimed that ithad acquired, at the time of statehood, title to all land underlyingwaters influenced by the tide, and that it held such lands in thepublic trust. The petitioners countered with the argument thatnavigation, rather than tidal influence, was the basis for determin-ing which lands were subject to the trust. They tried to distinguishthe contested property from tidelands bordering the sea on theground that the property could not be considered to be part of anavigable body of water.

The Court rejected the argument that the boundaries of publictrust tidal lands should be defined by the navigability of thewaters. 299 Instead, it adopted an "ebb and flow" test; "the States,

296. See, e.g., National Audubon Soc'y, 33 Cal. 3d 419, 658 P.2d 709, 189 Cal. Rptr.346 (holding that one of the purposes of the public trust is to protect ecological values); cf.Phillips Petroleum Co. v. Mississippi, 108 S. Ct. 791, 795 n.5 (1988) (rejecting the "dissent'sassertion that 'the fundamental purpose of the public trust is to protect commerce').

297. 108 S. Ct. 791 (1988).298. Id. at 793.299. The Court rejected an argument that its earlier extension of admiralty jurisdic-

tion and the public trust to navigable fresh waters meant that the ebb and flow test hadbeen displaced by a general navigability test. Id. at 797. The opinion suggests that differenttests may exist for different types of land, depending on the historical means of definingthe scope of the public's interest. Navigability may remain the test for freshwater areas. Ifso, a party attempting to extend the trust to nonnavigable freshwater wetlands or riparian


Takings and Ecology

upon entry into the Union, received ownership of all lands underwaters subject to the ebb andflow of the tide. '" 300

Although the Phillips Petroleum Court relied on historicalarguments to conclude that tidal influence defined the extent ofthe public's interest, it adopted ecological concepts to determinewhich lands can be considered tidelands:

Admittedly, there is a difference in degree between the watersin this case, and non-navigable waters on the seashore that areaffected by the tide. But there is no difference in kind. For inthe end, all tide waters are connected to the sea: the waters inthis case, for example, by a navigable, tidal river. Perhaps thelands at issue here differ in some ways from tidelands directlyadjacent to the sea; nonetheless, they still share those "geo-graphical, chemical and environmental" qualities that makelands beneath tidal waters unique. 301

Thus, the majority's holding rested on the theory that the publictrust, whatever its purposes or origins, historically gave the publicrights in at least one type of ecosystem. As a result, at least sometrust lands can be identified by certain common ecologicalcharacteristics.

Although the Supreme Court has yet to rule directly on thepublic trust doctrine's applicability to nonnavigable freshwater,other courts have addressed the question. Most notable was theMono Lake case, 302 in which the California Supreme Court facedthe issue of "whether the public trust limits conduct affectingnonnavigable tributaries to navigable waterways. 3 3

The court relied on two turn of the century cases 30 4 in con-cluding "that the public trust doctrine, as recognized and devel-

zones would have a difficult time, because the extent of the public trust's coverage offreshwater lands has historically been defined in economic, rather than ecological, terms.

300. Id. at 795 (emphasis added).301. Id. at 797 (quoting Kaiser Aetna v. United States, 444 U.S. 164, 183 (1979)

(Blackmun, J., dissenting)).302. National Audubon Soc'y v. Superior Court, 33 Cal. 3d 419, 658 P.2d 709, 189

Cal. Rptr. 346, cert. denied sub. nom., City of Los Angeles Dep't of Water & Power v.National Audubon Soc'y, 464 U.S. 977 (1983).

303. Id. at 435, 658 P.2d at 720, 189 Cal. Rptr. at 357.304. People v. Gold Run D. & M. Co., 66 Cal. 138, 4 P. 1152 (1884) (enjoining the

dumping of gold mine tailings in a nonnavigable tributary of the Sacramento River becausethe dumping impaired the Sacramento River's navigability, caused pollution, and threatenedto cause flooding); People v. Russ, 132 Cal. 102, 64 P. 111 (1901) (holding that the nonna-vigable nature of two sloughs adjoining the navigable Salt River did not preclude findingthat damming the sloughs was a public nuisance, if it affected the river's navigability).

1988]



oped in California decisions, protects navigable waters from harmcaused by diversion of nonnavigable tributaries. ' 30 5 It thus foundhidden in the historical roots of the doctrine the idea that ownersof nonnavigable tributaries cannot use their property to impair thepublic's common property interest in navigable waters.

California is not alone in expanding the ecological reach ofthe public trust doctrine. Other states are invoking the doctrine togrant the public rights in new types of property. For example,Montana recently recognized the public's right of access to allwaters of the state-nonnavigable as well as navigable-up to theordinary high-water mark.306 And in New Jersey, the public trustdoctrine has been expanded to secure a right of access across dry-sand beaches immediately landward of the high-water mark. 3 7

D. Implications of the Public Trust Doctrine for Takings

Under decisions such as Phillips Petroleum and the MonoLake case, states received property interests in millions of acresthat were formerly under exclusively private control. Private prop-erty owners, on the other hand, were divested of rights they pre-viously believed were their own. The same result occurred inMontana, New Jersey and other states in which the doctrine wasextended.

But how do these rearrangements of public and private rightssurvive takings claims? The answer, just as was true with thenavigation servitude, is simple-there are no takings because theland owners never owned the land clear of prior public rights. Inother words, nothing was taken away because the original bundleof property rights never included the right to deny the public access

305. National Audubon Soc'y, 33 Cal. 3d at 437, 658 P.2d at 721, 189 Cal. Rptr. at357 (footnotes omitted).

306. See Montana Coalition for Stream Access v. Curran, 682 P.2d 163 (Mont. 1984);Montana Coalition for Stream Access v. Hildreth, 684 P.2d 1088 (Mont. 1984). In Curran,the court stated: "Streambed ownership by a private party is irrelevant. If the waters areowned by the State and held in trust for the people by the State, no private party may barthe use of those waters by the people." Curran, 682 P.2d at 170. For a criticism of thesecases, see Blood, Creation of Common Property Spells Uncertain Future for Montana'sWetlands, NAT'L WETLANDS NEWSL., Sept.-Oct. 1985, at 11 (arguing that allowing publicaccess will create a "tragedy of the commons").

307. See, e.g., Lusardi v. Curtis Point Property Owners Ass'n, 86 N.J. 217, 430 A.2d881 (1981); Neptune City v. Avon-By-The-Sea, 61 N.J. 296, 294 A.2d 47 (1972); cf. Stateex rel Thornton v. Hay, 254 Or. 584, 462 P.2d 671 (1969) (basing access to Oregon beacheson custom); Application of Ashford, 50 Haw. 314, 440 P.2d 76 (1968) (same for Hawaii).


Takings and Ecology

to Montana surface waters or New Jersey beaches, or to useCalifornia's nonnavigable tributaries to the detriment of the ad-joining navigable waters. The Phillips Petroleum Court addressedthis conflict between the public trust doctrine and the fifth amend-ment in terms of the reasonable expectations of property owners,holding that property owners in Mississippi had been on noticethat the state claimed or could claim an ownership interest in theirsubmerged tidelands.

The import of the expanding public trust doctrine for wetlandsand riparian forests should be clear. As already noted, the publictrust doctrine is historically rooted in a view of water resourcespredating modern knowledge of the hydrologic cycle. The ecolog-ically coherent view of the cycle, found in the Mono Lake case,makes wetlands and riparian forests prime candidates for publictrust protection. In the Mono Lake case, nonnavigable tributarieswere held subject to the trust because of their ecological intercon-nectedness with navigable waters. This extension of the doctrineshould at least lead California to hold that all riparian lands eco-logically impacting navigable waters are subject to the public trust.It is a relatively small step from the California Supreme Court'sopinion in the Mono Lake case to the claim that wetlands ownerscannot fill their wetlands if doing so affects navigable waters.

More broadly, there is no reason other than ancient rhetoricthat the public trust doctrine should not be expanded to all eco-logically important lands-even those not clearly related to wateror the hydrologic cycle. 30 8 The doctrine developed to protect onlywater resources in part because the courts viewed our relationshipto natural resources purely in terms of short-term exploitation.Thus, the trust was historically merely a means of securing com-mercial exploitation (i.e., navigation) of the nation's rivers. Thecourts have ignored the possibility that the public also should havea right in the long-term stability and maintenance of trust re-sources. As our understanding of ecology increases, the courtshave found it increasingly difficult to recognize a public right inisolated resources, without extending some protection to adjacentareas. Thus, even if the public trust remains limited to the "air,running water and the sea," our growing understanding of ecology

308. Note, however, that according to the first law of ecology all land is connectedtogether; thus, all land would be linked to the hydrologic cycle.

1988]



should lead to certain obligations on all land owners in order toprotect the public's interest in those resources.

The public trust doctrine is helpful because, like the navigationservitude, it offers a historical peg on which the court can hangits ecological hat. Invoking the public trust to avoid takings prob-lems, however, is still a second-best solution as long as the courtscontinue to hide their ecological concerns behind ancient rheto-ric.309 A more desirable trend would be to switch the debate inpublic trust cases from a discussion of the doctrine's historicalroots to a discussion of the ecological values that should be pro-tected in the public interest. In short, the public trust doctrine,like the navigation servitude and traditional takings law, should beshaped by environmental limitations on human activity.

E. Towards a Land Ethic

Legislatures and local land-use agencies have begun to un-derstand the critical importance of preserving the ecological integ-rity of certain undeveloped lands. As a result, land-use controlsthat impose an ecological obligation of stewardship on propertyowners have become increasingly common. Yet the courts fre-quently find that a growth-oriented, development-at-all-costs re-lationship between humans and land is constitutionally compelled.

As Justice Holmes reminded us when dissenting from theeconomic substantive due process of the Lochner era, "a consti-tution is not intended to embody a particular economic theory.... "310 Nonetheless, the courts have struck down ecologicallysound land-use controls in the belief that a private right to theunfettered development of land is an indisputable and constitu-tionally compelled part of our economic system. By viewing landownership only in terms of development for material uses, thecourts preserve an economic system predicated on the false as-sumption that all growth is good. At the same time, they system-atically underestimate the public's interest in controlling suchgrowth, even when development will have irreversible, cata-

309. In fact, the public trust doctrine's ancient rhetoric has also been its mostdebilitating factor for use in the wetlands area. Only recently have courts been willing toextend the public trust doctrine beyond its historical roots.

310. Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting).


Takings and Ecology

strophic effects on our quality of life and even our chances ofsurvival. In sum, the courts' current approach to land as merelyeconomic property perpetuates an economic system predicated onuncontrolled (and unsustainable) growth. This economic systemdirectly conflicts with the limits imposed by our finite environment.

As we have seen, some courts are beginning to recognize thatthe development of certain types of undeveloped and environmen-tally important lands31' have ramifications stretching far beyondtraditional notions of private or public nuisance. Accordingly, therudiments of an ecologically sound view of property are beginningto appear in some takings cases such as Just v. Marinette County312

which invoke a natural use theory of private property ownership.Similarly, extensions of the navigation servitude and public trustdoctrine indicate judicial recognition of the public's legitimate in-terest in protecting ecological values. These trends should be fusedto form an ecologically sound and coherent theory of property.

Such a theory would be based on an understanding that landplays a critical ecological role in shaping what type of environmentwe live in, the quality of our life, and even what we become. Itwould also be founded on the notion that private land-use deci-sions, if predicated solely on a growth-oriented, economics-basedview of land, will not lead to a stable environment or an acceptablequality of life. By turning to ecology, the courts would defineprivate and public rights in land by examining the objective tenetsof the environmental sciences. The Constitution, which must looksomewhere to define these public and private rights, would (atleast with respect to undeveloped land) look neither solely to themarketplace nor to changing public values, but rather to the lawsof nature.

The injection of environmental considerations into constitu-tional law is necessary in light of the limitations imposed by ashrinking land base. Nonetheless, precepts of fairness cannot be

311. Under this view, undeveloped, ecologically sensitive land will be treated differ-ently than other forms of property. Only by treating land as a distinct type of property canwe preserve land's role in the environment as well as its economic role. Property that isnot ecologically sensitive will continue to be viewed within the existing economics-orienteddoctrinal structure. This distinct treatment of land will be more justified as the economicrole of land continues to decline in relation to its ecological role and to the economic roleof other forms of property. See Large, supra note 2, at 1040-41 (observing that land isbecoming less important in its economic role and more important in its ecological role).

312. 56 Wis. 2d 7, 201 N.W.2d 761 (1972).

1988]



ignored in evaluating the desirability of an ecological conceptionof property.

In order to understand the fairness of an ecological theory, itis important to understand precisely how this theory of propertywould work. In a typical case, a court would face an environmentalland-use restriction that limits private development. Under theview of property law proposed here, the court would uphold theregulation if it finds that the regulation merely prevented the landowner from destroying the existing environmental character of theland. Alternatively, the regulation would be upheld if the courtfinds that the public was merely asserting its right to the ecologicalintegrity of the land pursuant to expanded versions of the navi-gation servitude or the public trust doctrine.

Regardless of whether the focus is on limiting private rightsor protecting the public's interest, the outcome would be the samebecause the court would base its decision on the same two-partinquiry. First, is the legislation reasonably related to the protectionof ecologically important land? Second, does the land in questionhave the environmental qualities protected by the legislation? Ifthe court answers both questions affirmatively, the legislationwould be upheld.

Current takings doctrine rightly considers the fairness of land-use restrictions, but it does so in the form of an inquiry into theinvestment-backed expectations of the property owner. Althoughexpectations provide a measure of fairness, they only measurefairness in a system that presumes growth and development as thecontrolling factors in the relationship between land and humans.The courts themselves are responsible for the unfortunate expec-tations associated with the present doctrine. This article suggeststhat, despite the courts' assumptions about the economic basis ofthe takings clause, property owners have no reason to view landsolely through a growth and development prism and instead shouldexpect to have obligations vis-a-vis the land. Once land is viewedas an environmental commodity that requires stewardship andmanagement, property owners will not be surprised to find theirdevelopment options limited.

In addition, more traditional notions of the interplay betweenlaw and expectations suggest that developing a new land ethic isfair. To the extent that it is merely a modification of establisheddoctrines, an ecology-based property theory is fair simply because


Takings and Ecology

some change in the law should be expected. The public trustdoctrine, navigation servitude and harm/benefit test are rooted ina historical process of growth and development. They reflect cur-rent conceptions of the proper balance between competing claimsto land. No one has a right to assume that the balance will notshift as the law adapts to our increased recognition of the land'simportance to environmental stability.

The argument regarding landowner expectations is compellingon a more basic level as well. After all, when a person buysundeveloped land with notice that the land cannot be developedwithout a permit, she is speculating on the ability to gain govern-mental approval. If she fails to obtain a permit, she has lost hergamble-but this is not necessarily unfair.313 Moreover, it is notany less fair when the rules of the gamble change after the spec-ulator buys. If property owners recognize that rule changes willact retrospectively, it only changes the nature of the gamble, notthe fairness of the result. Accordingly, if restrictive legislation ispassed after the property's purchase, compensation may not benecessary because changes in the law should be expected. Anyonewho has invested in real estate in recent years should know thatcertain undeveloped lands (e.g., wetlands) often invite special reg-ulations. 314 Any unfairness due to retrospective use-restrictionswill generally be mitigated by subsequent market adjustments. 315

The current expectations-based doctrine teaches us somethingelse about the fairness of a natural use theory. In Penn Central, itwas relevant that the state regulations did not change the presentuses of the terminal and thus did not interfere with Penn Central's

313. For an analysis of the efficiency of compensating investment-backed expecta-tions in takings cases, as well as generally, see Kaplow, An Economic Analysis of LegalTransitions, 99 HARV. L. REV. 509 (1986); see also Michelman, supra note 31, at 1238-39(arguing that no compensation may be fair if none expected).

314. The Court of Claims in Deltona Corp. v. United States found this argumentpersuasive:

Although [at the time of purchase] ... Deltona had every reason to believethat those permits would be forthcoming .... it also must have been awarethat the standards and conditions governing the issuance of permits couldchange. Deltona had no assurance that the permits would issue, but only anexpectation.

657 F.2d 1184, 1193 (Ct. Cl. 1981).315. Cf. Kaplow, supra note 313, at 602-06 (arguing that the unpredictability of

regulatory takings undermines the ability of market actors to make efficiant decisions).

1988]



primary expectations.31 6 In denying development permits (for en-vironmentally sensitive lands), states do nothing to interfere withcurrent uses. To the extent that expectations (which are equatedwith fairness) are based on current uses, no restrictions on changesin the current use of wetlands are unfair.

Finally, the fairness of denying individual landowners the rightto develop their land is apparent when it is realized that eachlandowner benefits from similar restrictions on other landowners.In Penn Central, the Court rejected the plaintiffs' argument thatthey were "solely burdened and unbenefited" by the regulationbecause many persons were carrying the burden.317 Moreover, theCourt noted that everyone, including the plaintiffs, enjoyed thebenefits-economic and aesthetic-of a more beautiful and inter-esting city. These arguments apply equally to many ecologicallyessential lands now regulated throughout the country. 318 Individualowners are not alone in carrying the burden of preservation, andeach owner receives the benefits of an ecologically stable world. 19

CONCLUSION

It is time that the ecological limits to development be moreboldly recognized in the law. The finiteness of the environmentand the interconnectedness of all natural systems mandate that wetreat land-in particular, ecologically sensitive land-in a differentfashion from other personal property. Humans must treat the landthat they own with environmental awareness and responsibility;they must conserve it, not exploit it.

Serious threats to our environment have led to a strikingincrease in the number of state laws enacted under the policepower. Far-sighted officials have responded to environmentalproblems with innovative and beneficial land-use regulations. All

316. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 130-3 1, reh'g denied,439 U.S. 883 (1978).

317. Id. at 131. The court noted that the landmarks ordinance applied to all thebuildings in thirty-one historic districts and to over 400 individual landmarks.

318. See supra text accompanying notes 126-38 (discussing the extensive regulationof wetlands).

319. Factors such as these informed the Deltona court's rejection of a takings claim:"[T]he Corps has been enforcing these new regulations on a uniform basis nationwide.Deltona will therefore share with other landowners both the benefits and burdens of theGovernment's exercise of its Commerce Clause powers." Deltona Corp. v. United States,657 F.2d 1184, 1192 (Ct. Cl. 1981).


Takings and Ecology

too often these efforts run afoul of a constitutional jurisprudencethat is rooted in an economic and development-oriented view ofland. Current takings analysis dates from an era when land seemedlimitless and the environment too awesome to threaten. Thosedays are gone. Legislatures and the general public have realizedthis, but courts have failed to instill the obligation of stewardshipin the institution of private property.

Having just celebrated its 200th birthday, our Constitution hasstood the test of time. It proved sufficiently flexible to surviveAmerica's transformation from an agrarian to an industrial society.Now it must survive a transition from environmental plentitude toscarcity. By moving towards an ecology-based definition of prop-erty, we can better balance our constitutional jurisprudence withthe limitations of nature. We must inject into our law a new logic,based not on economic conceptions, but on a vision of land'sbroader ecological role. It is a necessary step in ensuring thesurvival of our Constitution for another 200 years.

19881


b174-248 hunter 1988 article

Documents