CONSERVING CONSERVATION SERVITUDES: THE ROLE OF THE PRIOR PUBLIC USE DOCTRINE IN PROTECTING PRIVATELY CONSERVED LAND IN THE UNITED STATES AND AUSTRALIA

Both the United States and Australia would benefit from more conservation of private land, and conservation servitudes can help both countries achieve this. However, in the United States and Australia, the power of eminent domain is a threat to the perpetuity of conservation servitudes. The prior public use doctrine, a common law doctrine in the United States arising out of the public trust doctrine, could limit eminent domain in these cases and provide protection to conservation servitudes. This doctrine states that land devoted to one public use (such as conservation) may not be condemned for another inconsistent public use unless there is express legislative authority to do so. The argument that conservation servitudes serve a public use may be strengthened when affirmative steps are taken to monitor and manage encumbered land, an element that is required of conservation servitudes in Australia but not the United States. Further, the Australian legal system does not have an equivalent of the prior public use doctrine but may benefit from one. This Note examines the differences between conservation servitudes in the United States and Australia and analyzes the impact of the prior public use doctrine as a potential protection to conservation servitudes in each country. The prior public use doctrine is an important tool to protect the perpetuity of conservation servitudes. The application of this doctrine to conservation land raises important questions regarding what actions landowners must take to ensure public benefits are in fact derived from their conservation operations.