October 24, 2017

PLF reminds California that the Constitution protects property rights

By Jeffrey W. McCoy Attorney

Today, PLF submitted comments to the California State Lands Commission on its Draft Public Access Guide to California’s Navigable Waters. The Guide purports to restate the law related to public use of waterways within the state, but it leaves much to be desired – especially for property owners. Specifically, the Guide implies that California has much greater authority over private property than is justified by the relevant law.

Much of the Guide’s statements are based on the “public trust doctrine” a common law principle that protected the public’s use of tidal waters for navigation, commerce, and fishing. Over time, the doctrine was expanded to non-tidal navigable waters. California has gone even further, expanding the scope of the doctrine to diversions from tributaries of navigable waters and shorezones of waters where the public trust doctrine applies. California has also expanded the types of uses allowed under the doctrine, claiming that it protects recreational and ecological uses.

The draft Guide recognizes few limits to the scope of the public trust doctrine, which threatens private property rights of California land owners. An ever-expanding doctrine will upset the settled expectations of property owners on how they can use the land that they own. Some supporters of an expansive public trust doctrine have even admitted that they want to expand the doctrine’s scope in order to avoid paying just compensation for takings. Unfortunately for them, and fortunately for property owners, the Constitution remains the supreme law of the land.

As PLF states in its comments, the public trust doctrine cannot be used to circumvent the Constitution. When the state encroaches upon or interferes with property rights, a taking occurs and the state must pay just compensation. State agencies should understand that they cannot infringe upon property owners’ rights, and if they do, they must pay the price. PLF hopes that the Commission will amend its Guide to accurately state the law, and ensure that state agencies clearly understand their duties and obligations under the Constitution.

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