NO ENTRY TO THE PUBLIC LANDS : towards a theory of a public trust servitude for a way over abutting private land (Shelby D. Green) Team Work: Andrea Mancuso.

NO ENTRY TO THE PUBLIC LANDS:

towards a theory of a public trust servitude for a way over abutting private

land(Shelby D. Green)

Team Work: Andrea Mancuso Morini

Elisabetta Montedoro

Dario PavaraniAnnamaria Rossi

Yellowstone National Park, WY, USA

Professor: Paolo Fabbri

RULES AND REGULATIONS

Government ownership: preservation

Homestead Act of 1862

Mining Law of 1872

Yellowstone National Park and the Forest Reserve Act

Organic Administration Act

Federal Land Management Policy Act

ACCESS AS A FUNDAMENTAL PUBLIC

VALUEDespite the inherent existential values of the

public lands, it can scarcely be argued that access to them by the general public animated early federal land policy.

Adequate access is defined as “a route and method of access to non-Federal land that provides for reasonable use and enjoyment of the non-Federal land consistent with similarly situated non-Federal land and that minimizes damage or disturbance to National Forest System lands and resources”.

In Fitzgerald v. United States, plaintiffs sought to quiet title to an easement across public lands to get to their inholdings within a national forest. The United States had insisted that the plaintiffs apply for and obtain a special use authorization to use a road then located on public land.

In recent years, Congress has required as a condition of transports, provisions in transport instruments guaranteeing public access to federal lands by reservation of easements.

CAMFIELD V. UNITED STATES

A landowner constructed a fence on his odd-numbered lots to enclose twenty thousand acres of public land, thereby appropriating it to the exclusive use of the landowner and his associates. The Court, citing nuisance law, concluded that the Act was an appropriate exercise of the police power in addressing what could be considered a nuisance.

LEO SHEEP CO. V. UNITED STATES

The Court rejected the assertion that there was a violation of the Act by a landowner who refused to allow the government to build an access road across its property allowing the public to reach a reservoir on public land.

The prohibitions under the Act, however, did not cover the landowner’s objection to a public road over its land.

ROLE OF EASEMENT

An agreement regulating a non-possessory interest in the land of another, giving the right to use or limit the owner’s acts.

Easement by prior use or by necessity.

Importance of open-access public lands in US

Anyway, right of private to control access on his land.

It cannot be assumed the right of public to cross private lands. Agreement in favour of the government could deny access to the public.

Cal-Neva Land & Timber vs. United States: Easement created for permitting access to BLM members. Access to public permitted by the court only because of specific words used (“the right and privilege to control the roadway”)

IMPORTANCE OF COMMON LAW

“Rules serving as guides for proper practice, since proper practice is normal practice”

Indeterminacy of rules, permits rules to develop during times, permitting continuity with tradition and introducing innovation

Old Montesquieu’s idea that property is absolute must be replaced. Property is not a natural right but created by society to serve human values.

PUBLIC TRUST DOCRTINE AS A PART OF EVOLVING

COMMON LAW:The earliest conception of the public trust

doctrine in the United States pertained to waters, in particular tidal waters.

According to professor Robin Craig we have to conceive the public trust as any other common law principle, one that expands and adjusts in response to an evolving and changing society.

Without some mean of access, the public right to use the resources preserved for public use would be meaningless.

THE ORIGIN OF PUBLIC TRUST BURDENS ON

FEDERAL LANDS:Despite the very clear federal land policy in favor

of preservation and conservation, there is yet no general agreement on the need of protection of the public lands by the public trust doctrine.

According to professor Joseph Sax:

Of all the concepts known to American law, only the public trust doctrine seems to have the breadth and substantive content which might make it useful as a tool of general application for the citizens seeking to develop a comprehensive legal approach to resource management problems.

THE PUBLIC TRUST DOCTRINE SERVITUDE:

More than anything, property is about expectations of continued control, exclusive possession, and return on investment.

David Hume in his Treatise of Human Nature, described property rights as “conventions” that arise spontaneously from:

A general sense of common interests, which all members of society express one to the other, and which induces them to regulate their conduct by certain rules

Conventions arise in response to a felt need. They guide behavior and set the contours of rights and obligations.

CONCLUSIONS:

The reasons why landowners should not be allowed to put up fences, even on their own land, if the effect is to hinder the public's access to public land are several.

First, it is opportunistic and unjustly interferes with citizens' ability to enjoy the interest they hold in public lands.

Second, it denies citizens access rights rooted in the common law.

Third, and perhaps most compelling, because of general notions of property ownership and the evolving public trust doctrine, the right to exclude the public to the extent of access to public lands never inhered in the adjoining private land title.