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Opinion: Columnists

America can't trust the public trust

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In March 1972, in the case of Lynch v. Household Finance Corp., the U.S. Supreme Court ruled that "A fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other."

For good measure, the high court added, "[T]hat rights in property are basic civil rights has long been recognized."

In December 1973, professor Robert I. Reis told a conference at the liberal Albany Law School that the public trust doctrine was "an elastic and dynamic legal construct" that could expand so that "private rights or future privatization of rights would be precluded or significantly diminished."

The public trust doctrine is the principle that the government holds title to navigable waters and maintains them in trust for the public's reasonable use. The "elastic" part is what else besides navigable waters a lawyer can convince a court to define as being "cloaked with the public interest."

Reis gloated over the then-recent case of Just v. Marinette County. The Wisconsin Supreme Court's ruling was "the classic example of defining the property right out of existence. The landowner's only right was to use the land in its natural state."

Carol LaGrasse, founder and president of the New York-based Property Rights Foundation of America, attended that conference and wanted two minutes to rebut Reis' presentation. Patricia Salkin -- then-director of the sponsoring school's Government Law Center -- promised the time.

"However, I was denied the two minutes," LaGrasse told me, "and when I spoke forcefully from the floor, I was ignored. It was embarrassing, but I plowed up to the podium and critiqued the public trust doctrine.

"I had to speak over booing faculty and trust fund students with fingers in their ears, screaming at the top of their lungs, 'I can't hear you! I can't hear you!' "

That 1973 episode remains the archetype of liberals' "secret ego demanding to feel superior," as science fiction author Frank Herbert once wrote. His legendary audacity bared liberals' faux open-mindedness with this mocking mantra: "Only liberals really think. Only liberals are intellectual. Only liberals understand the needs of their fellows."

Two weeks ago, a California newspaper ran an op-ed titled "Restore public trust to water law" by San Francisco environmental attorney Antonio Rossmann. It began, "Trust. It's the most severely missing element in our public discourse."

Juxtaposing trust as "faith in another" and a trust as "holding property for another," Rossmann gave his pitch to place a public trust constitutional amendment on the 2014 statewide ballot.

The amendment would enshrine a 1983 California Supreme Court case, National Audubon Society v. Superior Court, which ruled that development "must be restrained by the public trust."

Audubon was Rossmann's holy green grail -- a decision that environmental quality should be preserved "whenever feasible ... surrendering that right of protection only in rare cases."

Noted property rights attorney Nancie Marzulla explained the Audubon case: "The public trust doctrine operates as a blank check," she told me, "in which the state can take for its own use vested rights in water and property merely by declaring that water or property is subject to the public trust doctrine."

How is that so different from ordinary eminent domain? Marzulla answered, "By relying on the public trust doctrine, the state can take whatever privately owned property it wants without paying for it."

Without paying for it! The public trust doctrine actually trumps the Constitution's just compensation clause. It's the police power inherent in government, not granted by the Constitution.

Should the public trust the concealed viciousness of so many liberal judges wielding such police power without constitutional fetters?

No, America can't trust the public trust.

Examiner Columnist Ron Arnold is executive vice president of the Center for the Defense of Free Enterprise.

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Ron Arnold

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The Washington Examiner