When Property Regimes Collide : The 'Takings' Problem

"Takings" are usually understood as government-imposed restraints on preexisting private property rights. But this is myopic. A cursory examination of actual takings cases reveals that disputes often arise where existing public and private property rights collide: where private lands meets public waters or where public wildlife have habitat on private lands. In these cases, the government is not just imposing on private property rights; it is also seeking to vindicate existing public property rights, for which no compensation should be required. This presents a boundary issue: where do private property rights end and public property rights begin? This chapter assesses the boundary problem in regulatory takings law by examining several important public-private boundary disputes, including Causby, Nollan, Pallazolo, Just, Christy, and Tulare Lake. The purpose is not to offer a comprehensive theory of when private property rights should trump public property rights, or vice versa. The boundary problem is simply too complex to permit a simple, theory-based solution. But neither can the problem be willed away - as the Supreme Court seems intent on doing - by ignoring the public property rights at stake in many regulatory takings disputes