# Amicus Curiae Brief — Phillips Petroleum Co. v. Mississippi > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1122%3A19 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1988 - **Citation:** 484 U.S. 469 ## Text 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? 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 , ’ 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 ~ . » ‘ ~ ’ ~ 7 ¢ . 7 ~ | . : - ; ~ &§ 2 . : . ~ F . ~ » ¥ : 7 ~ | ~ ; ; : : ; ~ ~ : ~ 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 } T , , hese are lands PATIV Geelsions charactel Le ke | AisS©O lnhai fants ; 1] , i ivw + “*) Mass. (7 Allen) 158 (Mass. 18 t | : | Tsu cry iT ' . 4 = , 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-? ‘ ‘ : tea is ODbDel | i¢*é : : ‘ ‘ z- ‘ if od and nabditat nit . r} ve ; ’ ’ ++ ; . . ’ ii : , " a ' ' 77 : ’ i? iz. j ’ ‘ ; ; ‘4 » 4 ' i i (4 m™ { hk } j j \ , a j | ' | it ij 1) 7. \ } .) ‘ rryé uTé put té ’ ‘ ‘ ' ‘ ‘ ‘ ‘ 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 : \ J , ¢ ; ~ . ‘ ~~ » * rry | ; rt st tes r> ’ ’ 4 : , ‘ : : ‘ : ’ +) ’ ’ 1 . a reo ‘ ; ’ ’ ’ : Ir ; ‘ > +) ’ | . ' = : . ~ ; : . ‘ = . ~ . 4 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1122%3A19. Public record. Not legal advice.