Green wood in the bundle of sticks: Fitting environmental ethics and ecology into real property law

Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1030 (1992) (footnote omitted). 344 Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 STAN. L. REV. 1433,1452 (1993) [hereinafter Sax, Property Rights].

345 Id. at 1453. 346 The principle is known as the unified "quantum" theory of property. 347 Lucas, 505 U.S. at 1003. 348 OLIVER WENDELL HOLMES, THE COMMON LAW 5 (1881).

349 Some commentators have questioned whether the import of the Lucas decision is a direct challenge to regulation based purely on ecological bases. "In general, Lucas addresses legislation imposed to maintain ecological services performed by land in its natural state." Sax, Property Rights, sup note 344, at 1439. 350 In Colorado Dept. of Health v. The Mill, 887 P.2d 993, 997 (Colo. 1994), the Supreme Court of Colorado held that under the common law of the state, any land use that causes pollution is a nuisance. 351 Lucas, 505 U.S. at 1027. 352 Id. 353 Sax, Property Rights, supra note 344, at 1446. 354 See id. 355 "An adjustment may even be effected between economic and aesthetic values. The landowner will not be compelled to forego every profitable use of his land, but in some jurisdictions it is at least an open question whether a restriction may not be placed upon the construction of unsightly signs." CARDOZO, supra note 45, at 58-59. 356 See generally KENNETH M. STAPP, THE PECULIAR INSTITUTION: SLAVERY IN THE ANTE-BELLUM SOUTH (1956).

357 The Court stated the following:

The many statutes on the books, both state and federal, that provide for the use of eminent domain to impose servitudes on private scenic lands preventing developmental uses, or to acquire such lands altogether, suggest the practical equivalence in this setting of negative regulation and appropriation. See, e.g., 16 U.S.C. sec 410ff-1(a) (authorizing acquisition of 'qands, waters, or interests [within Channel Islands National Park] (including but not limited to scenic easements)"); sec 460aa-2(a) (authorizing acquisition of "any lands, or lesser interests therein, including mineral interests and scenic easements" within Sawtooth National Recreation Area); 3921-3923 (authorizing acquisition of wetlands); N. C. Gen. Stat. 113A-38 (1990) (authorizing acquisition of, inter alia, "scenic easements" within the North Carolina natural and scenic rivers system); Tenn. Code Ann. 11-15-101-11-15-108 (1987) (authorizing acquisition of "protective easements" and other rights in real property adjacent to State's historic, architectural, archaeological, or cultural resources).

Lucas v. South Carolina Coastal Council, 505 U.S. 1003,1018-19 (1991).

358 In Del Monte Dunes at Monterey v. City of Monterey, 95 F.3d 1422, 1429 (9th Cir. 1996), the Court of Appeals for the Ninth Circuit evaluated the trial court's jury instruction, which contained the following

Public bodies, such as the city, have the authority to take actions which substantially advance legitimate public interest and legitimate public interest can include protecting the environment, preserving open space agriculture, protecting the health and safety of its citizens, and regulating the quality of the community by looking at development. So one of your jobs as jurors is to decide if the city's decision here substantially advanced any such legitimate public purpose.