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Abstract

In its recent decision, Bell v. Town of Wells, the Maine Law Court declined to grapple with one of the major legal conceptual problems presented by the case. The court failed entirely to reckon with the intersection of two competing, dynamic principles of American property law; these principles are increasingly significant in an era of growing conflict between public and private interests in land and natural resources. The first principle protects particular expectations of private owners of property through application of the just compensation (or "takings") clause of the fifth amendment. The second principle recognizes that certain property is held by the law to be "inherently public" and therefore is afforded special consideration by courts and legislatures. Navigable waterways, the waters of the sea, and the lands covered by the tides are included in this special category. The purposes of this Article are threefold. First, the Article discusses the Bell II court's evaluation of the takings clause challenge to the Public Trust in Intertidal Land Act; it outlines the major authority upon which the Bell II court relied for its finding that the Act violated the constitutional provision that property shall not be taken for public purpose without just compensation. The Law Court also drew considerable support from an advisory opinion by the Massachusetts Supreme Judicial Court that contained many analytical deficiencies. Second, a brief review of recent United States Supreme Court cases demonstrates the court's error in ignoring these important federal decisions. Two Supreme Court decisions are discussed in particular: Nollan v. California Coastal Commission, in which the Court invalidated a public beach access condition under the just compensation clause, and Phillips Petroleum Co. v. Mississippi, in which the Court made important findings concerning the application of state property law to define rights in tidally-influenced lands. The Article concludes with a discussion of how just compensation clause challenges to particular classes of governmental actions—those aimed at vindicating public rights in waters and tidally-influenced lands—should be evaluated by the courts. It outlines an alternative mode of analysis that, had it been followed, would have made an important contribution, both within the state and beyond, to the ongoing debate about the boundary between public and private expectations in land and natural resources.

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