Eminent Domain and the Public Trust

What happens when the eminent domain power is used to obtain title to lands or other properties in which there are public trust responsibilities?  The U.S. Court of Appeals for the Ninth Circuit confronted this question in U.S. v. California State Lands Commission (aka U.S. v. 32.42 Acres of Land. In particular, the court considered whether the federal government’s use of eminent domain authority to acquire land for military operations necessarily extinguished California public trust rights, such that any subsequent owner would not take possession subject to the public trust burden. In a unanimous opinion issued last week, the Ninth Circuit concluded eminent domain creates a new title, completely unencumbered by any prior public trust rights. As the opinion concludes:

In the well-chosen words of Justice Holmes, “if there is such a thing as a new title known to the law, one founded upon the taking by the right of eminent domain is as clear an example as can be found.” Emery v. Boston Terminal Co., 178 Mass. 172, 184 (1901). The United States seeks to establish such a new title here, and has paid the $2,910,000 a jurydetermined was just compensation to extinguish the property rights of California and the San Diego Port District. Having paid just compensation, the United States is entitled to the interest it sought in its complaint in condemnation: full fee simple, free of California’s public trust. We have concluded that neither the equal-footing doctrine nor the public trust doctrine prevents the federal government from taking that interest in the land unencumbered.

This is but another example of how the expansive use of eminent domain can threaten environmental conservation.

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