Friday, June 25, 2010
Omar Gonzalez-Pagan (J.D. Candidate, Pennsylvania) has posted The Lucas Exemption: How Takings Can Prevent the Erosion of the Public Trust Due to the Reclamation of Submerged Lands, Real Estate Law Journal, Vol. 38, Winter 2009. The abstract:
Two fundamental principles of property law - the public trust doctrine and the takings clause of the Fifth Amendment = are coming to a clash due to climate change. While it has long been accepted that states possess title to most tidal lands and waters below the mean high-tide line through the public trust doctrine, the public trust has, in essence, been eroded through the reclamation of submerged lands.
This paper argues that the reclamation of submerged lands erodes the public trust. Moreover, it posits that the takings clause is an adequate remedy to restore the public trust without resorting to compensation. Such argument is based on the premise that “takings” of reclaimed submerged lands falls under one of the exceptions established by the Supreme Court in Lucas v. South Carolina Coastal Council - that of background principles of property and common law.
The paper focuses on the Supreme Court of Puerto Rico case of San Geronimo Caribe Project, Inc. v. Puerto Rico as an example of how takings could have avoided the erosion of the public trust through the reclamation of submerged lands.