Academic journal article Boston College Law Review

Understanding the Public Trust Doctrine through Due Process

Academic journal article Boston College Law Review

Understanding the Public Trust Doctrine through Due Process

Article excerpt

INTRODUCTION

The archives at the Library of Congress can reveal some interesting quirks about the progression of American jurisprudence, particularly unofficial remarks by the Supreme Court justices that never made it into the reported texts.1 For example, the Blackmun papers reveal that the 1986 case Nollan v. California Coastal Commission involved more than the published opinions suggest, including an otherwise hidden discussion of the public trust doctrine ("PTD")-a doctrine that promotes the public's interest in certain essential resources against private exploitation by naming the sovereign as trustee of those resources.2 Nollan presented the issue of permitting exactions in land use law to the United States Supreme Court for the first time.3 A landowner sought a permit to replace his small, shorefront house with a significantly larger house 4 The Commission agreed to issue the permit if the landowner agreed to grant a public access easement below his seawall, allowing the public to move between the beaches a distance to the right and left of his property.5 In reviewing this condition, the Court ultimately held that such exactions require an essential nexus between the requested condition and the public purpose protected by the permit.6 The Court did not find a rational connection between the Commission's stated purpose-visibility of the beach-and a public access easement, so it invalidated the condition.7

Even though the Court seemingly resolved the case on substantive due process rationality grounds, the published majority opinion by Justice Antonin Scalia painted the exaction as a deprivation of property by describing the situation as a "takings" and analogizing to per se regulatory takings cases.8 This had the unfortunate effect of entangling the exactions context with takings jurisprudence.9 In dissent, Justice William Brennan attacked the scrutiny Justice Scalia seemed to apply in his "essential nexus" analysis and maintained, instead, that the Court should give greater deference to the state agency in its attempts to protect use of such an important resource.10 Justice Harry Blackmun also dissented, adding the seemingly unprompted comment that the case does not invoke the PTD.11

The Blackmun papers reveal, however, that Justice Brennan originally drafted a much longer dissent.12 The omitted pages discussed the PTD in length, including its history and development, its persistence in common law, the obligations it placed on the states as trustees, the limitations it placed on private holders of trust resources, and the mitigating effect that it had on the deprivation in this case.13 Justice Blackmun, though, suggested that Justice Brennan remove the PTD discussion out of concern that publishing such an exposition in dissent would associate the PTD with invalidated law and that Justice Scalia may expressly undermine the doctrine in his majority opinion.14 A back and forth of drafts proceeded between justices Brennan and Scalia, but, as the published opinions make evident, in the end the PTD fell out of the case.15 The short, precautionary statement that Justice Blackmun inserted into his dissent remains as the only official reference in the case.16

Justice Brennan's unpublished opinion invoked a classic formulation of the PTD that numerous federal and state courts have transcribed and applied.17 Like most similarly longstanding doctrines, much of the debate surrounding the PTD involves its application at the fringes of its scope.18 Unlike most other doctrines, though, its source remains hazy.19 Some scholars argue for a single source in federal law-either in federal common law or in the U.S. Constitution through the Commerce Clause, Property Clause, or from reserved-powers implicit in the Tenth Amendment.20 Others maintain that it exists entirely as a matter of state law and thus actually has fifty-one independent sources-the individual states and the federal government.21 If the PTD stood on firmer ground, Justice Brennan may not have dropped the PTD argument from his Nollan dissent, and exactions may not have stumbled into takings jurisprudence. …

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