The Public Trust Doctrine and Private Property: The Accommodation Principle

19 Pages Posted: 29 Jan 2010 Last revised: 13 Oct 2010

Michael C. Blumm

Lewis & Clark Law School

Date Written: January 28, 2010

Abstract

The public trust doctrine is often accused of undermining property rights, when in fact the doctrine is actually a property concept, and a venerable one. Instead of threatening property rights, the doctrine functions to harmonize public and private rights in important resources, mostly those close to the land-water edge. This article demonstrates how this reconciliation takes place by examining case law recognizing the lineal and conceptual divisions by which the doctrine separates public and private rights. It also considers other ways in which the public trust doctrine balances public and private rights, such as ratifying small privatizations of public resources, transforming fee simple absolutes into defeasible fees, and recognizing pubic easements on private land titles. The article concludes that the public trust doctrine, if properly understood, can perform the important function helping to modernize property law.

Keywords: public trust doctrine, private property, environmental law, natural resources law

JEL Classification: K11, K 32, Q22, Q24, Q25, R38, R52

Suggested Citation

Blumm, Michael C., The Public Trust Doctrine and Private Property: The Accommodation Principle (January 28, 2010). Pace Environmental Law (PELR) Review, Vol. 27, p. 649, 2010; Lewis & Clark Law School Legal Studies Research Paper No. 2010-8. Available at SSRN: https://ssrn.com/abstract=1543885

Michael C. Blumm (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States
503-768-6824 (Phone)
503-768-6701 (Fax)

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