Amicus Curiae Brief — Phillips Petroleum Co. v. Mississippi

Supreme Court, U.S,

ha FILED

No. 86-870 mm 1108

OL, JR.

In The CLERK

Supreme Court of the Unite States

October Term, 1986

ty

—_—

PHILLIPS PETROLEUM COMPANY AND

CINQUE BAMBINI PARTNERSHIP,

Petitioners,

Vv.

STATE OF MISSISSIPPI, AND

SAGA PETROLEUM U.3S., INC.

Respondents.

O-

On Writ of Certiorari

to the Supreme Court of Mississippi

ty

BRIEF OF THE STATES OF CALIFORNIA,

ALABAMA, ALASKA, ARIZONA, FLORIDA,

HAWAII, LOUISIANA, NORTH CAROLINA,

OREGON, TEXAS, AND WASHINGTON AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

—_,

Ww

Jouw K. Van pe Kamp

Attorney General

Anprea SHeRmDAN OnpDIN

Chief Assistant Attorney General

N. Grecory Tayvor, Assistant

Attorney General

Jan Srevens, Supervising

Deputy Attorney General

Counsel of Record

Micnae. L. Crow

Deputy Attorney General

1515 K Street

Post Office Box 944255

Sacramento, CA 94244-2550

Telephone: (916) 324-5495

Attorneys for Amicus Curiae

State of California (other counsel

listed on inside front cover)

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

LISTING OF STATE ATTORNEYS GENERAL

OTHER THAN CALIFORNIA

Dow SrecELMAN

Attorney General

State of Alabama

Grace Bera ScHAIBLE

Attorney General

State of Alaska

Ropert K. Corsrye

Attorney General

State of Arizona

Rospert A. ButTTeRworTH

Attorney General

State of Florida

Warren Paroeg, III

Attorney Genera!

State of Hawaii

WrtuM J. Gusrez, Jr

Attorney General

State of Louisiana

Lacy H. THornwseure

Attorney General

State of North Carolina

Dave FrRoHNMAYER

Attorney General

State of Oreron

Jim MartTrTox

Attorney General

State of Texas

Kenneta ©. EIKENBERR)

Attornev General

State of Washington

QUESTION PRESENTED

Whether, by expanding the common law defintion of

navigability to apply to inland waters, non-tidal but navi-

le in fact, this Court deprived the states of rights here

fere existing in their tidal waters.

TABLE OF CONTENTS

Page

INTEREST OF AMICI 1

SUMMARY OF ARGUMENT iii. escccscsccecssescssssssesseeee l

ARGU MENT 4

I. THE STATES ACQUIRED SOVEREIGN

TITLE TO ALL LANDS UNDERLYING

TIDEWATERS UPON THEIR ADMISSION

INTO THE UNION

Il. THE PROPERTY LAW OF THE STATES

DEVELOPED IN RELIANCE ON THEIR

CONTROL OF TIDAL WATERS. A CHANGE

IN THE RULES OF LITTORAL OWNER-

SHIP WOULD CAUSE ENDLESS CON-

FUSION

II. THE STATES’ TITLE TO TIDAL LANDS

WAS CONFIRMED BY THE SUBMERGED

LANDS ACT

IV. PUBLIC TRUST INTERESTS PROVIDING

THE BASIS FOR SOVEREIGN OWNERSHIP

APPLY TO ALL TIDAL WATERS

CONCLUSION

19

lil

TABLE OF AUTHORITIES

Page

Cases

Adams v. Pease, 2 Conn. 481 (1818) 8

Appleby v. City of New York, 271 U.S. 364 (1926) 6

Application of Ashford, 50 Haw. 314, 440 P.2d

76 (1968) 22

Arnold v. Mundy, 6 N.J.L. (1 Hal.) 1 (1821) 24, 25

Barney v. Keokuk, 94 U.S. 324 (1876) 3, 8, 15, 17, 28

Berry v. Carle. 3 Me. (3 Green.) 269 (1825) S

Bonelli Cattle Co. v. Arizona. 414 U.S. 313 (1973) 20

Borax Ltd. v. Los Angeles, 296 U.S. 10 (1935) 17

RBorouah of Neptune City v. Avon by the Sea. 61

N..J. 296, 294 A.2d 47 (1972) 25

Bullock v. Wilson, 2 Port. 436 (Ala. 1835) 7

California ex rel. Lands Comm’n. v. U.S., 457

U.S. 273 (1982) =

Claminiti v. Boyle. 107 Wash.2d 662. 732 F.2d YSY

(1987) 14

Carson v. Blazer, 2 Binn. 475 (Pa. 1810) 7, 28

(‘ates v. Wadlinaton, 1 MeCord 356 (S.C. 1822) 8

City of Long Beach v. Mansell, 3 Cal.3d 462, 476

P.2d 423, 91 Cal.Rptr. 23 (1970) 24

Cobb v. Davenport, 32 N.J.L. (3 Vroom) 369 (1879) 16

Collins v. Benbury, 25 N.C. (3 Lred.) 277 (1842) 8

Collins v. Benbury (11), 27 N.C. 118 (1884) 22

Commiussione rs of the Canal Fund v. Ke mpshall,

26 Wend. 404 (N.Y. 1841) A

Commonwealth v. Alger, 61 Mass. (7 Cush.) 53 (1851) 22

Commonwealth v. Chapin, 292 Mass. (5 Pick.) 203

(1827) .

iv

TABLE OF AUTHORITIES—Continued

Giavitt v. Chambers, 3 Ohio 495 (1828)

Hardin v. Jordan, 140 U.S. 371 (1891) 10, 11,

Hayes v. Bowman, 22 Va. (1 Rand.) 417 (1823)

Illinois Central Railroad v. Illinois, 146 U.S. 387

(1892)

Ingram v. Threadgill, 14 N.C. (3 Dev. 59 (1831)

Inhahitants of West Roxbury v. Stoddard, 89 Mass.

(7 Allen) 158 (Mass. 1863)

Jackvony v. Powel, 67 R.I. 218, 21 A.2d 554 (1941)

Just v. Marinette County, 56 Wis.2d 7, 201 N.W.

2d 761 (1972)

Luttes v. State. 159 Texas 500. 324 S.W.2d 167

(Tex. 1958)

Mann v. Tacoma Land Co.. 153 U.S. 273 (1894)

—

Marks v. Whitney, 6 Cal.3d 251, 491 P.2d 374,

98 Cal.Rptr. 790 (1971)

Martin v. Waddell, 41 U.S. (16 Pet.) 409 (1842) 9, 22, 2:

Matthews v. Bay Head Improvement Assn., 95

N.J. 306, 471 A.2d 355 (1984), cert. den. 469

U.S. 821

McKeen v. Delancy’s Lessee, 9 U.S. (5 Cranch)

22 (1809)

McManus v. Carmichae lL, 3 lowa 1 (1856)

Middletown v. Pritchard, 4 IL (3 Seam.) 519 (1842

Pages

Elwood v. City of New York, 450 F.Supp. 846 (1978)

6

TABLE OF AUTHOR. TIES—Continued

Pages

Mononaahela Bridae Co. v. Kirk, 46 Penn. St.

112 (1863) q

Morse v. Oregon Div. of State Lands, 34 Or. App.

853, 581 P.2d 520 (1978) 26

Murdock v. Stickney, 62 Mass. (8 Cushing) 113 (1851) 10

National Audubon Society v. Los Angeles Dept.

of Water and Power. 33 Cal.3d 419, 658 P.2d 709,

189 Cal. Rptr. 346 (1983), cert. den. 464 U.S. 977

(1983) 26

Oregon ex rel. State Land Board v. Corvallis

Land & Gravel Co.. 429 U.S. 363 (1977) 1, 12, 15, 16, 99

Packer v. Bird, 71 Cal. 134, 11 P. 873 (1886) 12

Packer v. Bird, 137 U.S. 661 (1891) 9

Py ople »v. California Fish Co.. 166 Cal. 576, 138

P, 79 (1913) 14, 17, 23

Pollard’s Lessee Vv. Hlaqan, 44 U.S. (3 How. ) 212

(1845) 4,5, 7,12

Robinson v. Silver Lake Ry. & Lumber Co., 153

Wash. 261 (1929) 14

Ross v. Burkhard Investment Co., 90 Cal.App.

201, 265 P. 982 (1928) 19

Scott v. Willson. 3 N.H. 321 (1825) &

Shively v. Bowlby, 152 U.S. 1 (1893) passim

Simmons v. French, 25 Conn. 346 (1856) 1]

State v. Bradford. 50 S.W.2d 1065 (Tex. 1932) 23

Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842) 21

The Prope lle rT (renessee Chief v. Fitzhuah. 53 LS.

(12 How.) 443 (1851) 7, 28

l nite d State Ss .

vil

TABLE OF AUTHORITIES

Continued

California, 332 U.S. 19 (1947)

LT nite d States 9). De I's lice , 641 F.2d 1169 (5th Cir.

1981)

United States v. Mission Rock Co., 189 U.S. 391

(1903)

United States v.

120 (D. Mass. 1981)

U.S. v. Oregon, 295 U.S. 1 (1935)

Ward v. Mulford. 32 Cal. 365 (1867)

1.58 Acres of Land, 523 F.Supp.

We ber Y. Board of Harbor (‘ommissioners. RO

U.S. (18 Wall.) 57 (1873)

Wilcox v. Jackson, 38 U.S. (13 Pet.) 498 (1839)

Wright v. Seymour. 69 Cal. 122, 10 P. 323 (1886)

STATUTES

Alaska Stat. 28.05.965( 21)

Cal. Civ. Code 6 670 (West 1982)

1715 N.C. Session Laws, ch. 6

1777 N.C. Session Laws, ch. 114, 4 10

Submerged Lands Act of 1953 (43

43

301-1315 (1982) )

U.S.C.A. § 1301(a)

43 U.S.C.A. § 1311(a)

U.S.C.A. § 1312

43

‘>*)

we)

(

'.F LR. § 323.2 (July 1, 1986)

TEexTs

W.

surby, Handbook on) the Law o! Ri

18 (3d ed. 1965)

Pages

al Property,

vil

TABLE OF AUTHORITIES—Continued

Pages

4 R. Clark, Waters and Water Rights 195 (1970

ed. ) 6

Comment, The Tideland Trust: Economic Cur-

rents in a Traditional Legal Doctrine, 21

U.C.L.A. L.Rev. 826 (1974) 16

J. Gould, Treatise on the Law of Waters, 100 (3d

ed. 1900), citing Commonwealth v. Vincent, 108

Mass. 441 (1871) 6,7,8

3 J. Kent, Commentaries on American Law 413

(14th ed. 1896) 6

MacGrady, The Navigability Concept in the Civil

and Common Law: Historical Development,

Current Importanee, and Some Doctrines That

Don’t Hold Water, 3 Florida State U.L. Rev.

511 (1975) 6

G. Nash, The California State Land Office, 1858

1897, 27 Huntington Library Q. No. 4 (Aug.

1964) 24

M. Oxfield, Federal Land Grants To the States

With Special Reference to Minnesota (unpub-

lished paper, Univ. Minn. 1915) 17

Sax, The Public Trust Doctrine in Natural Resource

Law: Effective Judicial Intervention, 68 Mich.

L.Rev. 471 (1970) 25

H. Schultes, An Essay on Aquatic Rights 21 (1839 ed.) 7

Selvin, The Public Trust Doctrine in American

Law and Economie Policy, 1789-1920, 1980 Wise.

L..Rev. 1403 g

Stevens, The Public Trust: A Sovereign’s Ancient

Prerogative Becomes the People’s Environ

mental Right, 14 U.C. Davis L.Rev. 195 (1980) 16

Wetlands: Their Use and Regulation, at 57-60

(U.S. Congress, Office of Technology Assess

ment, 1984) 27

\|

!

HORTTIES

nT nued

l4

14

14

INTEREST OF AMICI

The interest of California and other states in this

issue is clear. This Court has consistently held that the

absolute property in and dominion and sovereignty ove!

all soils under the tide water belongs to the states as an

attribute of their sovereignty (Weber v. Board of Har

bor Commusstoners, 85 U.S. (18 Wall.) 57. 65 (1873): a

cord, j nv / j Ninateec VWiss On Ro i f : TsO | ~ sO]

1905S } Th an | tle passes not by grrace of (Congress, but

by virtue of the United States Constitution i((/reqon ex

rel. State Land Board v. Corvallis Land d Gravel Co.. 429

U.S. 363 (1977).) Although individual states fashioned

ng or renouncing these lands in

whol r part, Tew of them gave up their tidal waters.

whether or not thev were navigable in fact ‘or tidelands

ire among the most important lands the state controls,

and the disposition historically has been restricted both

by common law and state constitutiona! limitations

SUMMARY OF ARGUMENT

T") iss nresents | novel and unprecedented chal

nee TO state tT the To The heds ot tidal waters kor nearly

—

rivers and lakes that are navigable in fact. Petitioners

now seek to reverse the direction of this juridical flow,

arguing that state title to tidal waters should be lim'ted

to those which are also navigable in fact. There is no

basis in precedent or policy for this new limitation. As a

matter of federal constitutional law the equal footing doe

trine, confirmed by Congress in the Submerged Lands

Act, vests title to the beds of all tidally influenced and

navigable waters in the individual states as an inherent

aspect of state sovereignty. Accordingly, the decision

helow should be affirmed.

The doctrine of state sovereign ownership of sub

merged lands was developed by this Court from the com

mon law of England. The common perception of Ameri

can courts at that time was that under common law the

crown held all tidal waters: because they were incapable

of cultivation, because under concepts of civil law they

were incapable of ordinary ownership, and because they

constituted part of the seas over which the crown exer

cised admiralty power

‘*Navigability’’ in English law, was a term of art

based on whether waters were subject to tidal influence

Even in early times, however, some American courts recog

nized that the English definition of navigability was too

restrictive; and that the same protections of public owner

ship should extend to the non-tidal rivers and lakes that

constituted ‘‘common highways’’ for the new nation. This

concept—that waters navigable in fact should be navigable

in law—was adopted by this court in determining admiralty

jurisdiction, in applving the commerce clause and, eventu

allv, in determining the boundaries of sovereign ownership

3

under the equal footing doctrine (Barne uv. K eok uk. Q4

Us. 324, 337-338 (1876).)

Over a hundred years after these germinal decisions,

this Court is now asked to decide whether, in extending the

definition of navigability to non-tidal waters navigable in

fact, it intended to repeal the old tidality test, or to merely

supplement it. Neither the decisions of this Court nor the

acts of Congress suggest an intent to effect such a repeal

and to withdraw tidelands from the states—if indeed that

is constitutionally possible

Any other ruling would wreck havoe on established

rules of property based upon the long-held and reasonable

expectations of the states that title to the beds of tidally

influenced waters vested in them at statehood. Nothing in

the decisions of this Court respecting sovereign lands sug

gests that the extension of the doctrine of sovereign own

ership to inland waters that are navigable in fact amounts

to a repeal of the long-standing common law rule that all

tidal waters were navigable in law In the Submerged

Lands Act, Congress unambiguously retained the distine

tion between tidal waters nd lands beneath waters navi

gable in fact, and confirmed the states’ title to both. Al!

though individual states may adopt more restrictive rules

of property, this Court has not. In California, as in other

states, over a hundred vears of litigation and legislation

have brought about a painfully fashioned scheme of titles,

depending on whether lands were tidal or non tidal: navi

gable or non-navigable. It is too late in the day to un

ravel these legal skeins and introduce a new and novel |

tation on the test of navigability for title

4

ARGUMENT

Nearly 150 years ago, Justice Catron described the

issue now once again before this Court as ‘‘the most im

portant controversy ever brought before this court, either

as it respects the amount of property involved, or the

principles on which the present judgment proceeds

(Pollard’s Lessee +. Hagan. 44 U.S. (3 How.) 212, 235

(1845).) This is so because it has to do with basic princi

ples of federalism: the relationship of state and federal

sovereigns. In Pollard’s Lessee, Justice Catron made es

sentially the same argument that petitioners have raised

here. It was rejected by this Court in 1845, and one might

well have assumed the point to have been settled.

The rule under which states claim their tidal waters is

one basic to our constitutional system. It is based on the

premise that ‘‘when the Revolution took place the people

of each state became themselves sovereign’’ (id. at 410),

and ‘‘all the rights of the Crown and of Parliament vested

in the several States, subject to the rights surrendered to

the national government by the Constitution of the United

States.’’ (Shively v. Bowlby, 152 U.S. 1, 15 (1893).) Thus,

‘‘itihe shores of navigable waters, and the soils unde

them, were not granted by the Constitution of the United

States, but were reserved to the states respectively.’’

(Pollard’s Lessee v. Hagan, supra, 44 U.S. (3 How.) 212,

230.) These interests, acquired by the original colonies

and all subsequently admitted states, are consistently char

acterized as inherent attributes of sovereignty, ‘‘so identi

fied with the sovereign power of government that a pr

sumption against their separation from sovereignty mus!

be indulged, in construing either grants by the sovereig:

or transfer of sovereignty itself.”’ (US. wv. Ore gon,

-

295 U.S. 1. 14 (1935).) Thus. since the tidal!

waters at is

sue here passed to the states as states, As part of thelr

constitutional birthright. this Court will necessari! he

cautious in holding that the subsequent extension of the

definition of navigability acted to divest those interests

from states that chose to retain them

I

THE STATES ACQUIRED SOVEREIGN TITLE

TO ALL LANDS UNDERLYING TIDEWA

TERS UPON THEIR ADMISSION INTO THE

UNION

very de« SIdT) om? th ~ s

cy r? arTTiy ng ; ta =

SO I “4 nterest in t ll wate has ‘ Wit! t re

ere e to na vamiity } et (ithe? < . }

ther ! | Vnose ere | : ‘

int | iw W ef ; ’ _ ’ ’ ‘ ;

for tit] lhe tidelands at issue im th 18] 1uing

j rd ] ‘ Hadar “pr 44 US iH

were not ni na M4 ‘ | | | ; :

ror ! / liow. at 2vt

| nas | = «7 ‘ |

| ’ Ti | ry ‘

} 4] oot nv tT? th iT Y : Ss il /

; J tT? j ; ;

’ mae? ; j ; 2 j "

, ry Nfote t} The Tiss | ert ’ ont ’ a ‘

’ ‘,? ’ : ’ ’ : ~ . ’

’ r? 7y

rig na vat tl :

: ai |

nt! “ i

Sf a the . ' f

‘ 4 eT i ; | fi

; " 4 " - | _ ~ ' ' ty

+o

7

mentator wrote, the king, by common law, had title to the

bed of the Thames ‘‘as high as the tide flowed,’’ and a

grant of the sovereign’s interest to the City of London

included ‘‘all the issues, breaches, creeks, and grounds

overflown, as far as the water ebbeth and floweth....’’

(H. Schultes, An Essay on Aquatic Rights 21, 22 (1839

ed.).) This assumption rested variously on the theory

that in Great Britain rivers ceased being useful for nav-

igability beyond the zone of tidal influence (The Propeller

Genessee Chief v. Fitzhugh, 53 U.S. (12 How.) 443, 454-455

(1851); that such rivers were considered to be a ‘‘branch

of the sea,’’ (H. Schultes, supra, at 50); that the King’s

admiralty jurisdiction extended to all tidal waters; and

that lands covered entirely or periodically by salt water

were incapable of cultivation or use. (E.g., Shively v. Bowl-

by, supra, 152 U.S. at 57; J. Gould, supra, at 39 n. 1.) As

a result, navigability was determined by whether the lands

in question were subject to tidal influence, and rivers were

considered navigable to the extent of tidal flows. (H.

Sehultes, supra, at 50.)

But the rights and jurisdiction of states as sovereigns

were not governed by ‘‘the common law of England as it

prevailed in the colonies before the Revolution, but as

modified by our own institutions.’’ (Pollard’s Lessee v.

Hagan, supra, 44 U.S. (3 How.) at 229.) In the early nine-

teenth century, state courts showed an increasing realiza-

tien that the rivers of the United States that were nav-

iwable in fact should be treated as sovereign waters ir-

respective of their tidality. (E.g., Carson v. Blazer, 2 Binn.

475 (Pa. 1810) (Susquehanna River): ‘‘[S]ince the revolu-

no part of the common law has been adopted except

that which was proper for our country.’’ (/d., at 477.)

(Aceord, Bullock v. Wilson, 2 Port. 436 (Ala. 1835) (Coosa

8

River); Collins v. Benbury, 25 N.C. (3 Tred.) 277 (1842)

(Albermarle and Pamlico Sounds); Jngram v. Threadgill,

14 N.C. (3 Dev.) 59 (1831) (Pedee River); and Cates v.

Wadlington, 1 MeCord 356 (S.C. 1822) (Knoree River).)

Some states, however, retained the English common law

rule and applied the tidal test. (See Adams v. Pease, 2

Conn. 481 (1818); J/tddletown v. Pritchard, 4 Ul. (3 Seam.)

519 (1842); Commonwealth v. Chapin, 22 Mass. (5 Pick.)

203 (1827); Berry v. Carle, 3 Me. (3 Green.) 269 (1825) ;

Scott v. Willson, 3 N.H. 321 (1825); Commissioners of the

Canal Fund v. Kempshall, 26 Wend. 404 (N.Y. 1841);

Gavitt v. Chambers, 3 Ohio 495 (1828); and Hayes v. Bow-

man, 22 Va. (1 Rand.) 417 (1823).) (See generally, Selvin,

The Public Trust Doctrine in American Law and Eco-

nomic Policy, 1789-1920, 1980 Wise. L.Rev. 1403, 1407, n.

10.)

What is important for these purposes is the percep-

tion American courts had of the law at the time the

equal footing doctrine evolved. That perception was that

the English test depended wholly on tidality. As Justice

Field flatly stated in his “lodestone’’ Illinois Central de-

cision, ‘‘In England the ebb and flow of the tide constitute

the legal test of the navigability of waters.’’ (Jllimots Cen

tral Railroad Co. v. lilinois, 146 U.S. 387, 435 (1892); see

also, Weber v. Harbor Commisstoners, supra, 85 U.S. (18

Wall.) at 65: ‘‘By (the common) law the title to the shore

of the sea, and of the arms of the sea, and in the soils un

der tidewaters is, in England, in the king, and, in this

country, in the State.’’ (Accord, Barney v. Keokuk, supra,

94 U.S. 324, 336; W. Burby, Handbook on the Law of Real

Property, 4 18, p. 45 (3d ed. 1965), citing Gould on Waters

(3d ed.) § 42; Shively v. Bowlby, supra, 152 U.S. 1, 11:

9

‘*By the common law, both the title and the dominion of

the sea, and of rivers and arms of the sea, where the tide

ebbs and flows, and of all the lands below high water mark,

within the jurisdiction of the Crown of England, are in the

King.’’

In Packer v. Bird, 137 U.S. 661, 668-669 (1891), Justice

Field quotes the Pennsylvania court’s description of the

common law rule with apparent approval:

‘*We are aware that by the common law of Eng

land such streams as the Mississippi, the Missouri, the

rivers Amazon and Platte, the Rhine, the Danube, the

Po, the Nile, the Euphrates, the Ganges and the Indus,

were not navigable rivers, but were the subject of pri

vate property, whilst an insignificant creek in a small

island was elevated to the dignity of a public river,

because it was so near the ocean that the tide ebbed

and flowed up the whole of its petty course. The Ro-

man law, which has pervaded Continental Europe, and

which took its rise in a country where there was a tide.

less sea, recognized all rivers as navigable which were

really so, and this common sense view was adopted by

the early founders of Pennsylvania, whose province

was intersected by large and valuable streams, some

of which are a mile in breadth.”’ (Monongahela Bridge

Co. v. Kirk, 46 Penn. St. 112, 120 (1865).)

Indeed, tidality was the common law test of naviga

bility when this Court expanded the definition for admir-

alty purposes. (The Propeller Genessee Chief v. Fitzhugh,

supra, 53 U.S. (12 How.) at 456-457.)

The American view of English common law was set

forth clearly in Shively v. Bowlby, supra, 152 U.S. 1, 49:

citing Justice Taney’s classic opinion in Martin v. Waddell,

41 U.S. (16 Pet.) at 409-411 (1842) (emphasis added) :

‘*The title and dominion of the fide waters and

of the soil under them, in each colony, passed by the

royal charter to the grantees as ‘a trust for the com

mon use of the new community about to be estab

10

lished;’ and, upon the American Revolution, vested

absolutely in the people of each State ‘for their own

common use, subject only to the rights since surren-

dered by the Constitution to the general government.’ ”’

Or, as Justice Bradley put it in Hardin v. Jordan, 140

U.S. 371, 381 (1891): **The title to the shore and lands

under tide water... ‘is regarded as incidental to the sover

eignty of the State—a portion of the royalties belonging

thereto, and held in trust for the public purposes of naviga

tion & fishery.’’’ (Shively v. Bowley, supra, 152 U.S.

at 49.)

The title and dominion of the tidewaters and the lands

under them are held by the United States for the benefit

of the whole people, and, as this Court has often said, ‘‘in

trust for the future States.’’ (J/bid.)

Karly state decisions applying the tidality test to de

termine title to waters which were not navigable in fact

are common. In Wright v. Seymour, 69 Cal. 122, 10 P. 323

(1886), the California Supreme Court was confronted with

a patent describing lands meandered along the Russian

River. The river at the location in question was tidal but

concededly not navigable in fact. Nevertheless the court

held that under the common law test, the State owned its

bed:

‘*In the sense of the common law, Russian River,

at the point indicated, is as completely a navigable

stream as the Hudson at New York or the Thames at

London.’’ (/d., at 124.)

Such lands under tidal waters belong to the state by

virtue of its sovereignty, the court held. (/d., at 126.) In

Murdock v. Stickney, 62 Mass. (8 Cushing) 113, 115 (1851)

the court held that a creek within the ebb and flow of the

,

. . » . . . . * .

tide was navigable in ‘‘its technical sense’’ since all! tidal

waters are navigable under common law, and thus did not

fall within a statute allowing construction of water mills

1]

on non-navigable streams upon payment of an annual fee.

The Connecticut court held that the tidal ‘‘flats’’ adjoining

an arm of the sea were in public ownership. (Simmons v.

French, 25 Conn. 346, 352 (1856).)

The American courts’ concept of English common law

was clear. As the lowa court put it:

‘‘'T }he ebb and flow of the tide was, at common

law, the most usual test of navigabilitv, vet it was not

necessarily the onlv one ... But on the other hand,

there are in England and in this country, many arms

of the sea, which, though not navigable in fact, are so

legally."” (McManus v. Carmichael, 3 lowa 1, 27

(1856).)

In characterizing the Mississippi River as navigable in the

title sense, the court made it clear that the tests of tidality

and navigability in fact were concurrent ones; that the

later test did not displace the former one:

‘‘Tt is true that this legality (navigability) at

taches to some waters that which do not possess the

requisite quality in fact, but this arises from their re

lation to the high seas, and to admiralty, and to the

difficulty of making a hundred exceptions.’’ (/d.,

at 30.)

Later opinions of this Court reinforce the conclusion

that in extending the doctrine of ‘‘navigability’’ to include

waters above the head of tide, the Court did not reject the

settled doctrine that states have sovereign ownership of

lands subject to the ebb and flow of the tides. For exam

ple, it is stated:

“This right of the State s to re qulate and control

the shores of tide waters, and the land under tlem., is

the same as that which is exercised by the Crown in

England. In this country the same rule jas been e2

tended to our great navigable lakes, which are treated

as inland seas; and also, in some of the States, io nav:

gable rivers, as the Mississippi... .’’ (Hardm v. Jo:

12

dan, supra, 140 U.S. 371, 382, cited in Shively v. Bowl-

by, supra, at 46; emphasis added.)

In Oregon ex rel. State Land Board v. Corvallis Sand

& Gravel Co., supra, 429 U.S. 363, the court cited Weber

v. Board of Harbor Commisstoners, supra, 85 U.S. (18

Wall.), 65-66, reaffirming the doctrine of Pollard’s Lessee:

‘** *Upon the admission of California into the Union

upon equal footing with the original States, absolute

property m, and domimion and sovereignty over, all

sous under the tidewaters within her limits passed to

the State, with the consequent right to dispose of the

title to any part of said soils im such manner as she

might deem proper, subject only to the paramount rigiit

of navigation over the waters ...."’ [Emphasis in

original |

‘‘In Barney v. Keokuk, 94 U.S. 324, 338 (1877),

the Court extended the doctrmme to waters which wer:

nontidal but nonetheless navigable, consistent with its

earlier extension of admiralty jurisdiction to such wa-

ters in The Propeller Genesce Chief v. Fitzhugh, 12

How. 443 (1852).’’ (Oregon ex rel. State Land Board

v. Corvallis Sand & Gravel Co., supra, 429 U.S. at 374-

375; emphasis added.)

A tidal water is navigable at law throughout its mud

flats, inlets and estuaries. As the court observed with re

spect to the Sacramento River: ‘* ‘There is but one river,

and that a navigable one. The waters on each side of the

island constitute parts of one navigable stream.’ ’ /’acke:

v. Burd, 71 Cal. 134, 135, 11 P. 873 (1886), aff’d 157 U.S.

661 (1891).)*

4. Indeed, counsel for the amicus American Land Title

Association shared this undisputed assumption in an earlier

proceeding, in which he stated:

“|Mly understanding is that for purposes of the Pollard

rule, all tidal waters are treated as navigable and a determination

of actual navigability is therefore not necessary as it would be

with respect to lakes or other nontidal inland waters.” (Argu-

ment of then Deputy Solicitor General Louis B. Claiborne, in

U.S. v. Alaska, No. 84 Original, vol. XVII, transcript of oral

argument on questions 6, 8, 9, 10 and 11 at p. 2433 (March 4

1985).)

thereof.’’ La

‘ nst it. AV, 2.4 pDnasis aaded

ie) 1. few vears later, the California Supreme Court

‘ The T ‘ mas ‘ en eould be granted onl\ sup rect

trust. as including potentially ‘‘the entire sea

the Oreo ne to Mexico and the shores ol

1 i il na vanpie stirea is [al

uter nd unt t meets the lands made swa

art nad PPT ure , fresh water strea

j fogrs a eh f 166 (‘al 57 6. ~Q) 122 P 7G

. e California (¢ | Code nacted af

‘ State . thy . or ‘ a land : ln ; 1¢

1 be y ordinar high water mark, bordering

Deo The

r |1ana Pari lake or strean

a \\ 2? ™

’ » to? +. tas@ :

AS 4th). = SiPi¢ ons ; (yT nrovides

‘*‘The state of Washington asserts its owners!

,

’ the heds and snores oT all na gable waters in thie

. : >

stat i to and the line of ordinary hig!

‘ ’ ifers nere Ti tide ebppDs and flows. and uD

i if Md tre ne o! ordinar high vater W th r

ivigable rivers and lakes Wn

‘ > raed 7 ’

'

y Sunreme (‘ourt has recentiy stated that t

: : y

I vas DUL a IO! ul declaratior b the peopie oO

’ ’ : af Té nos<esseci | \ rive OT - ;

: , ,

ny j ” " SJ ; / Iké Ry j smrpoe?7

Va 261. 274. 279 (P. 1109 (192

‘ ‘ ett, I »7 ‘ ; ne , the r. Ss) | ’ : ’

‘ itat ’ | nif 5 fi¢ iy Wa

im) “7 | ey

. . - > , ’ tira

iif Oris , Sil ia inciudce

‘ ‘) . +) ~* até ryiie lO! a1T

| ideland s detined |

IT

THE PROPERTY LAW OF THE STATES DE

VELOPED IN RELIANCE ON THEIR CON

TROL OF TIDAL WATERS. A CHANGE IN

THE RULES OF LITTORAL OWNERSHIP

WOULD CAUSE ENDLESS CONFUSION

Snihpeta ,

: | COT yy hodies mT

16

New Jersey.’ They may retain jurisdiction over waters

both tidal and navigable in fact, or they may draw their

boundaries at high water or low water.

Many states have made grants of their tidelands, and

the nature and effect of the state patents again is con-

strued under state law. Such a grant, depending on the

jurisdiction, may constitute a complete fee. It may pass

title subject to a retained public trust interest, it may pass

revocable title, or it may be totally void. (See Stevens,

The Public Trust: A Sovereign’s Ancient Prerogative

Becomes the People’s Environmental Right, 14 U.C. Davis

L. Rev. 195, 214-220 (1980): Comment, The Tideland Trus!

Economic Currents in a Traditional Legal Doctrine, 21

U.C.L.A. L. Rev. 826 (1974).)

Only one federal question properly exists: What

was the nature of the lands that passed to the state by

5 in Cobb v. Davenport, 32 N.j.1 + Vroom) 369, 379

1867), the court, in considering the question of the title to

the bed of a lake. said

The tidal test, as distinguishing waters in which the

property is in the sovereign, from those in which it is in

private individuals, was said on the argument to be found

ed in no principle. Many of the rules of the common law

by which rights are ascertained and property is acquired

held, and transmitted, if subjected to such criticism would

be found to be equally devoid of principle. As a rule by

which individuals may be guided in ascertaining what

rights belong to them, as a portion of the public, and what

are exclusively within the domain of private ownership,

it has the merit of uniformity and certainty, and is easy

of application. The criterion suggested in the argument

of holding all rivers which are navigable in fact to be public

rivers, and those which are not navigable in fact to be

private rivers, is wanting in that accuracy and certainty at

which the law aims. It can only be made certain by the

addition of some arbitrary rule, such as depth of water

quantity of tonnage, or the like, and even then is still open

to the objection that no man can tell whether he is exer

cising a public right, or trespassing upon a private right

without entering upon an investigation, and thus the way

is open for discussion and disturbances.’

~

IT

THE STATES’ TITLE TO TIDAL LANDS

WAS CONFIRMED BY THE SUBMERGED

LANDS ACT

~ . » ‘ ~

’

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ng doctrine, the State can no more base its claim to

nds unnecessary to a navigational purpose on the

Submerged Lands Act than on that doctrine.’’ (Jd.,

at 324-325; emphasis added.)

urt reaffirmed its interpretation of the effect of the

Ss erged Lands Act in California ex rel. Lands Comm'n.

S., 457 U.S. 273, 283 (1982), stating: ‘‘The act

ned the title of the States to the tidelands up to the

mean high tide.’’ Thus, Congress has recognized

nland submerged and submersible lands ‘‘perman-

yr periodically covered by tidal waters up to

ie of mean high tide’’ are sovereign state lands,

red at the time of statehood under the equal footing

«. This unambiguous language leaves no room for

statements of legislative history offered in the amicus

f American Land Title Association at 18, note 14.

Petitioner’s theory, if adopted, would raise grave

ys as to the authority of states to fashion their own

f property, one of the principal attributes of sov

tv. As this Court observed, ‘‘Under our federal

property ownership is not governed by a general

| law, but rather bv the law of the several states

As Chief Justice Marshall said, ‘‘{I]n construing

tatutes of a state on which land title depends, infin

schief would ensue should this court observe a dif

rule from that which has long been established in

tate... .’’ (McKeen v. Delancy’s Lessee, 9 U.S. (5

22, 32 (1809).) This is particularly true with re

to real property, for even when federal common law

its hevday under the teachings of Swift v. Tyson.

tt |S. (16 Pet.) 1 (1842). an exeention was carved out

local law of real property. (/d., at 18.) (State Land

Board v. Corvallis Sand & Gravel Co., supra, 429 U.S. at

378, 379.)

A new rule excluding lands beneath tidal waters from

state sovereign title would wreak havoe on established

state rules of property and effectively rescind the rules

first set down by this Court in Marti v. Waddell and

Shively v. Bowlby. Not only would those states in which

such lands are held be deprived of them; but the status

of titles conferred by tideland patents covering such lands

would be thrown into disarray.

A new, uniform federal rule could replace state rules

of property such as Hawaii’s, under which the state holds

the seashore to the line of vegetation. (Application of

Ashford, 50 Haw. 314, 316-317, 440 P.2d 76, 78 (1968));

or that of Texas, where the state, under civil law prin-

ciples, holds to a higher high tide, as distinguished from

the mean high tide of the common law, for lands granted

before Texas adopted the common law in 1840 (Luttes

». State. 159 Texas 500, 537, 324 S.W.2d 167, 191 (Tex.

1958)), or that of North Carolina, which has prohibited

the erant or private entry of lands subject to the ‘‘ebb and

flow of the sea; then as high as salt water is found, so

high the tide, the flow of water from the sea, ascends.’’

(Collins v. Benbury (IT), 27 N.C. 118, 126 (1884); 1777

N.C. Session Laws, ch. 114, 4 10; 1715 N.C. Session Laws,

ch. 6.) It could extinguish state rules under which public

trust rights to drv sand areas have been held to exist

(Matthews v. Bay Head Improvement Assn., 95 N.J. 306,

326, 471 A.2d 355, 364 (1984), cert. den. 469 U.S. 821);

or where, under a statute over 300 vears old, the upland

owner holds to low tide within a hundred rod limit. (Com

monwealth v. Alger, 61 Mass. (7 Cush.) 53, 67 (1851).)

yo

,

And it could change the law of Texas, under which the

state holds title to the beds of streams at least 30 feet

wide. (State v. Bradford. 50 S.W.2d 1065 (Tex. 1932).)

Historically, grants with the purpose of divesting the

sovereign of its interests, held on behalf of the people,

have been viewed by federal and state courts alike with

disfavor. (Illinois Central Railroad v. Illinois. 146 U.S

387, 493-454 (1892): Shively v. Bowlby, supra, 152 U.S. at

10, 13: Pe ople ». California Fish Co.. supra, 166 Cal. at

992, 138 P. at 86.) Thus, in Martin v. Waddell, supra, 41

U.S. (16 Pet.) 414, the court said:

‘*{T]t would require verv plain language .. . to

persuade us that the public and common right of fish

ing in navigable waters which has been so long and so

carefully guarded in England .. . was intended, in

this one instance, to he taken awav.’’

Or as the California court put it:

‘*Tt is not to be assumed that the state. which

is hound bv the publie trust to protect and preserve this

public easement and use, should have intentionally

abdicated the trust as to all land not within the very

limited areas of the reservations, and should have

directed the sale of anv and every other part of the

land alon’ the shores and beaches to exclusive private

use, to the destruction of the paramount public ease

ment, which it was its dutv to protect, and for the

protection and regulation of which it received its title

to such lands.’’ (People v. California Fish Co.. supra,

166 Cal. at 591, 138 P. at 85.)

The contentions of petitioner and its amici lead into

a quagmire from which there is no ready egress. Rather

than providing certainty, their adoption would lead to a

new series of land grabs, renewing the hopes of a multi

tude of claimants holding deeds to tidelands surveved

and patented in good or bad faith in the ‘‘ gilded age’’ o!

24

the nineteenth century. (See, e.g., G. Nash, The California

State Land Office, 1858-1897, 27 Huntington Library of

No. 4 (Aug. 1964); City of Long Beach v. Mansell, 3 Cal.

3d 462, 504, 476 P.2d 423, 455, 91 Cal. Rptr. 23, 55 (1970).)

Traditionally, each state has had a choice as to wheth-

er to claim all of the tidal lands within its jurisdiction, or

to adopt a different boundary. Each state has been free

to deal with its tidelands ‘‘according to its own views of

‘* )

justice and policy ....’’ (Shively v. Bowlby, supra, 152

U.S. at 26.)

IV

PUBLIC TRUST INTERESTS PROVIDING

THE BASIS FOR SOVEREIGN OWNERSHIP

APPLY TO ALL TIDAL WATERS

California and other states share an interest in the

beds of tidal waters acquired as an inherent attribute

of sovereignty. These lands are held in public trust for

the people of the states: for the historic purposes of com

merce, fishery and ecological preservation. These trust

purposes co far beyond those of historic navigability in

fact. In earliest times, the trust existed not only for com

merce, but for fishery as well. In fact the initial con

troversies leading to enunciation of the public trust doe

trine in this country were based on the right to utilize

oyster beds, not channels of commerce. (Arnold v. Mundy,

6 N.J.L. (1 Hal.) 1 (1821);’ Marti v. Waddell, supra,

Arnold v. Mundy, supra, 6 N.J.L. 1, revolved around

an oyster bed in the mouth of the Raritan River, on land “about

fifty yards below common low water mark (over which the

tide ebbed and flows); and frequently bare at the full and

change of the moon, and commonly, though not always so

in the fall and spring and the space between it and

the shore is what they call a mud flat. commonly covered with

water, but not a channel for vessels or other craft usually plying

in the river.” (d., at 66.)

+] U S (16 Pet 367 Today the valu ot ovster beds

and the more extended values of nonnavigable tidal waters

are well known They constitute breed ng grounds and

a souree of food for innume rable species Th | —_ -

f if T° ? . T; nc ‘ lis " se i. ‘ .

i] eTs, Dro eT \? cit pace VAL@T {) Ol cy hye }

Tunct on As part of the sea © ma TY) abl { Jay J V/ ,

1oO7o

ividg

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T , ,

hese are lands PATIV Geelsions charactel Le < e vy

common to ali the peo} ‘*Tor the purpose ot } nd

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ill the other uses of wats i its od

excepter ivy liu j Cry ) r ‘ 1] ‘

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ke | AisS©O lnhai fants ; 1] , i ivw + “*)

Mass. (7 Allen) 158 (Mass. 18 t

| : | Tsu cry iT '

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oOUcday tl p) i ‘ tl ST “ ‘ ’

)

i he 1) to ’ ; | ’

: = + P ; flayihbl ‘ 4 -

i Pci rhe ’ t, ‘ . ari +} 4

TY wis i 4 } ; tiny . : re : ; ‘

f eT anotney? hers Bia \ , , " .

that o7 ot th most _— rt ‘ ‘ 4 } ‘

| | } = COMDpA ect whe aar ‘ " "

Ss presel iT) oT thes ne ‘ 7

~ tnat Tivg T? | —s-? ‘ ‘ :

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26

As population pressures have grown, scientific studies

have shown increasingly the value of shrinking estuarine

areas as sources of food, cover, nesting and spawning ar-

eas for fish, shellfish, waterfowl and animals. It is the

sovereign’s trust duty ‘‘to protect the people’s common

heritage of streams, lakes, marshlands and tidelands. .

(National Audubon Society v. Los Angeles Dept. of Water

and Power, 33 Cal.3d 419, 441, 658 P.2d 709. 724, 189 Call.

Rptr. 346, 361 (1983), cert. den. 464 U.S. 977 (1983).)

As the Oregon court stated:

‘*Because the trust is for the public benefit, the

state’s trustee obligation is commonly deseribed as

the protection of specified public usages, e.g., naviga-

tion, fishery and, in more recent cases, recreation. The

severe restriction upon the power of the State as trus

tee to modify water resources is predicated not only

upon the importance of the public use of such waters

and lands but upon the exhaustible and irreplaceable

nature of the resources and its fundamental impor

tance to our society and to our environment. These

resources, after all, can only be spent once. There

fore, the law has historically and consistently recog-

nized that rivers and estuaries once destroyed or di-

minished may never be restored to the public and,

accordingly, has required the highest degree of pro

tection from the public trustee.”’ (Morse wv. Oregon

Div. of State Lands, 34 Or App. 853, 581 P.2d 520,

o24 (1978), aff’d., 285 Or 197, 590 P.2d 709 (1979)

[permit to fill 32 acres of estuary for airport runway

found inconsistent with the public trust|.)

Massachusetts has taken a similar position. In hold

ing that lands in the Boston waterfront were impressed

with the public trust coincidental with state sovereign own

ership, the federal court stated:

‘*‘For centuries, land below the low water mark

has been recognized as having a peculiar nature, sub-

>

ont + 7 ne decrees Lt ] Ae] , _ ,

» : . 7 4 : |

aaien message ortage. erce, ishing. rec

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Pid

are essential parts of the sea; for the propagation of wild-

life, and to cleanse polluted waters. The wisdom of the

eighteenth century public trust duty to hold these waters

for ‘‘fisheries’’ as well as commerce, becomes increasingly

apparent as scientific knowledge grows.

CONCLUSION

laced with such a consistent and strong judicial tradi

tion of construing grants of sovereign lan! against the

grantee, it is daring indeed to suggest that judicial de

cisions extending the common law of navigability to non

tidal waters had the effect of limiting application of the

equal footing doctrine to waters navigable in fact. And

if they did, would they have retroactive effect? Would

tidal waters be vested in the original 1% colonies, as they

were in the Crown, but not im states admitted later, after

the more expansive doctrine developed’! The ‘‘naviga

bility in faet’’ doetrine appears to have emerged no earler

than 1810, at best, in Carson v. Blazer, 2 Binn. 475 (Pa

1810) and its first application under the admiralty clause

occurred in 1851. (The Propeller Genessee Chief v. Fite

hugh, supra, 53 US. (12 How.) at 457.) This Court first

recognized applicability of the ‘‘navigability im fact’’ test

to titles received under the equal footing doctrine in Barney

v. Keokuk, supra, 94 US. 324. If the tidal navigability rule

has been superseded by one or more of these decisions,

would such a supersession be applied with total retroae

tivity to all the states, or only to states admitted after any

one of those significant juris lictional dates!

Petitioner here has raised an unprecedented attack on

an established rule of property; one involving the lands