The Lost Takings Test

Josh Eagle, University of South Carolina - Columbia


In recent decades, the Supreme Court has used oceanfront property as a principal vehicle for the development of Fifth Amendment takings law. Cases alleging that a state government has taken oceanfront land have produced landmark opinions such as Nollan v. California Coastal Commission (1987), Lucas v. South Carolina Coastal Council (1992), and Stop the Beach Renourishment v. Florida Department of Environmental Protection (2010). In each of these cases, the Court has applied its standard, positivist takings analysis: first, identifying the rights of the landowner; then, weighing the extent to which the government’s action has limited those rights. This Article argues that the use of this approach in claims involving oceanfront land is inconsistent with both the legal relationship between the parties and a substantial body of common law precedent.

In the nineteenth century, courts – including the Supreme Court – recognized that public-private disputes along the waterfront were unique because the upland owner and the state were both landowners. Moreover, these landowners shared a common boundary and a common interest in services, such as navigability, provided by rivers and the sea. To resolve disputes between states and upland owners, courts developed what I call "the lost takings test." Unlike the positivist approach used by the Court in modern oceanfront cases, the lost test de-emphasizes established rights and puts a premium on the use of public and private land in furtherance of activities that provide value to both parties. Consistent with the common interests of the state and upland owners, and along the lines of private nuisance law, the lost takings test seeks to harmonize uses by focusing on unreasonable interference. After examining the history and rationale of the lost takings test, the Article explains how the test would have produced more fitting results in the Court’s recent oceanfront property decisions and why the Court should rediscover the lost takings test for use in future cases.

By providing the first detailed example of a property-specific takings test, the Article raises a host of interesting questions. For example, what are the implications of using unusual forms of property for the development of broadly applicable takings law? Could the post-positive approach embodied in the lost test be appropriate for use in other takings contexts? Are there other alternatives to the Court’s traditional focus on state limitation of positive rights?