This case involved an effort by the City of Seattle to prevent, on the basis of the public trust doctrine, the development of property that the State of Washington sold as buildable property. The public trust doctrine holds that land under water is owned by the state and held by the state in trust for the public. Historically, states have alienated significant parcels of property free of the public trust or subject to limited public trust restrictions. In recent years, the environmental movement has tried to re-assert the public trust doctrine to prevent development of such property without payment of compensation for a regulatory taking.
In 1991, Esplanade Properties (“Esplanade”) bought the property already platted as housing lots and zoned residential by the City of Seattle. In 1992, Esplanade sought zoning relief to develop the property. The City of Seattle ultimately denied Esplanade the ability to develop the property in any manner, citing its right under the public trust doctrine to preserve the area for recreational purposes. Esplanade commenced a regulatory taking action in the United States District Court for the Western District of Washington. The District Court granted summary judgment to Seattle on its public trust defense. The District Court’s decision was affirmed by the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit decision contained some particularly broad and overinclusive language that retains public trust jurisdiction forever over all property that has ever been under water, no matter how long ago it was filled.
Pacific Legal Foundation, representing Esplanade, filed a petition for certiorari and NELF filed an amicus brief in support of that petition. NELF’s brief discussed the significant amount of alienated public trust property in New England, highlighting the national scope of the problem of state re-assertion of public trust restrictions over alienated property. NELF argued that federal courts need to protect property owners of former public trust properties and limited public trust properties from novel interpretations of the public trust that would retroactively eviscerate property owners’ long-held expectations for productive use of their properties. On June 16, 2003 the Court denied the petition for writ of certiorari.