Opposition Brief — Fogerty v. California

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f %) JUL 29 1987

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Nos. 86-1877, 86-1901 ii a

In The ar

Supreme Court of the United States

October Term, 1986

sy.

CHARLES F. FOGERTY, et al.,

Petitioners,

STATE OF CALIFORNIA, et al.,

Respondents.

TAHOE SHOREZONE REPRESENTATION,

Petitioner,

STATE OF CALIFORNTA, et al.,

Respondents.

tt.

—

ON PETITIONS FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF

THE STATE OF CALIFORNIA

FOR THE THIRD APPELLATE DISTRICT

RESPONDENTS’ BRIEF IN OPPOSITION

—

JOHN K. VAN DE KAMP DAVID B. JUDSON

Attorney General of the Deputy Attorney General

State of California 1515 K Street

N. GREGORY TAYLOR Post Office Box 944255

Assistant Attorney General Sacramento, CA 94244-2550

Supervising Deputy Attorney

General/Counsel of Record

Attorneys for Respondents

State of California, et al.

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

or call collect (402) 342-2831

QUESTIONS PRESENTED

1. Whether a state, having relinquished its fee title

to the beds of non-tidal, navigable waters between low and

high water, is prohibited by the United States Constitu-

tion from retaining a public trust interest therein.

2. Whether a substantial federal question is pre-

sented by a state court decision setting the high water

mark on a navigable lake based on the lake’s long-estab-

lished current levels rather than some earlier, pre-regu-

lated elevation.

3. Whether a state court’s determination of high

water mark on a navigable lake violates any federallvy-

established rights of littoral owners in the absence of a

showing that they have been denied any uses of the af-

fected lands.

PARTIES

We concur with petitioners’ enumeration of parties

with one exception: The California Department of Fish

and Game is not a party to this action.

JURISDICTION _........

ill

TABLE OF CONTENTS

Page

CONSTITUTIONAL PROVISIONS AND STAT-

I cc esmemcsetcntanie

STATEMENT OF THE CASE ..

REASONS FOR DENYING THE WRIT |.

epi einccnolniincerionetiie

THE STATES RECEIVED THE BEDS OF

THEIR NAVIGABLE WATERS TO HIGH

WATER MARK ON THEIR ADMISSION

TO THE UNION. STATE LAW DETER-

MINES THE NATURE AND EXTENT TO

WHICH THESE LANDS MAY BE SUB-

SEQUENTLY TRANSFERRED...

A. State Law Governs The Disposition Of

SE EE

B. A Rinarian Boundary Is Ambulatory.

State Law Controls The Effects Of Ac-

eretion, Erosion, Reliction. And Sub-

a LE a

C. Petitioners Had Amnle Remedies Under

State Law For Any Rights Lost By The

Raising Of Dam Levels .2......cccccccccc ccc.

THE ACQUISITION OF SOVEREIGN

RIGHTS UNDER STATE LAW GOVERN-

ING AMBULATORY WATER BOUND-

ARTES IS NOT RESTRICTED TO THE

LOCATION OF THOSE BOUNDARIES

Ea el RE ee

PETITIONERS, HAVING FAILED TO

ALLEGE ANY DENTIAT OF ECONOMIC

USE OF THEIR PROPERTY, DO NOT

RAISE A FEDERAL QUESTION COG-

NIZABLE BY THIS COURT www.

ag ci) SEE a

OO A ON Ie

TABLE OF AUTHORITIES

Page

CasEs

Anderson v. Ray, 37 8.D. 17, 156 N.W. 591 (1916) ..... 13

Appleby v. New York, 271 U.S. 364 (1926) 12

Ariyoshi v. Robinson, 106 S.Ct. 3269, on remand,

796 F.2d 339 (9th Cir. 1986) 9, 27

Arnold v. Mundy, 6 N.J.L. 1 (1821) 12

Attorney General v. Revere Copper, 152 Mass. [

444, 25 N.E. 605 (1890) 14

Barney v. Keokuk, 94 U.S. 324 (1876) 11,15

Bohn v. Albertson, 107 Cal.App.2d 738 (1951) 0... 17

Boone v. Kingsbury, 206 Cal. 148, 273 P. 797 (1928),

appeal dism. and cert. den., 280 U.S. 517 (1929) ....5, 25

Bowman’s Divisees v. Wathen, 2 McLean 382 (1842)... 11

Brewer-Elliott Ou and Gas Co. v. United States,

260 U.S. 77 (1922) . 2

Carpenter v. City of Santa Monica, 63 Cal.App.2d

772, 147 P.2d 964 (1944) 16

Chowchilla Farms, Inc. v. Martin, 219 Cal. 1 (1933) ........ 16

City of Berkeley v. Superior Court, 26 Cal.3d 515,

606 P.2d 362, 162 Cal.Rptr. 327, cert. den., 449

U.S. 840 (1980) .............. 4,5, 12, 24

City of Los Angeles v. Aitken, 10 Cal.App.2d

460 (1935) 16, 19, 20

City of Los Angeles v. Venice Peninsula Proper-

oe aE” 5 5 ean Alpen ae 21

City of Oakland v. Oakland Water Front Co., 118

Cal. 160, 50 P. 277 (1897) 11

Clement v. State Reclamation Board, 35 Cal.2d

628 (1950) 16, 19

Coastal Petroleum Co. v. American Cyanamid

Co., 492 S.2d 339 (1986), cert. den. sub nom.

Mobil Oil Corp. v. Board of Trustees, 107 S.Ct.

950 (1987) 13

‘

TABLE OF AUTHORITIES—Continued

Page

Colberg v. State of California, 67 Cal.2d 408, 62

Cal.Rptr. 401, 432 P.2d 3 (1967), cert. den. 390

U.S. 949 (1968) 10, 24

Connally v. Pension Benefit.Guaranty Corp., 106

S.Ct. 1018 (1986) 7,8

County of St. Clair v. Lovingston, 90 U.S. (23

Wall) 46 (1874) ....... 15, 16

Diana Shooting Club v. Lamoreauaz, 114 Wis. 44,

89 N.W. 880 (1902) ... 16, 17

Evitts v. Lucey, 469 U.S. 387 (1985) ......... 8

First English Evangelical Lutheran Church v.

County of Los Angeles, 107 S.Ct. 2378 (1987) ............ 1, 9, 26

Flisrand v. Madison, 35 §.D. 457, 152 N.W. 796

|} eee 13, 14

Fogerty v. State (Fogerty II), 187 Cal.App.3d

224, 231 Cal.Rptr. 810 (Cal. App. 1986) 6, 24

Forestier v. Johnson, 164 Cal. 24, 127 P. 156 (1912) ...... 11

Fox River Co. v. R.R. Comm., 274 U.S. 651 (1927) ..... 28

Gibson v. Kelly, 15 Montana 417, 39 P. 517 (1895) ..... 14

Goodrich v. McMulan, 187 N.W. 368 (Mich. 1922) .......... 18

Gt. Northern Ry. v. Sunburst Co., 287 U.S. 358 (1932) 23

Hardin v. Jordan, 140 U.S. 371 (1891) : 14

Hass v. McManus, 126 N.W. 462 (Mich. 1910) 18

Hillebrand v. Knapp, 65 §8.D. 414, 274 N.W. 821

(1937) 14

Hodel v. Virginia Surface Mining and Reclama-

tion Assn., 452 U.S. 264 (1981) 9

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

387 (1892) 5, 12, 25

TABLE OF AUTHORITIES—Continued

Page

Illinois Steel Co. v. Bilot, 109 Wis. 418, 85 N.W.

| 14

Keystone Bituminous Coal Ass’n v. DeBenedictis,

107 S.Ct. 1232 (1987) 7

Kimball v. MacPherson, 46 Cal. 103 (1873) ...ccccccccccoo 12

Lake Country Estates v. Tahoe Planning Agency,

gk S| a 3

Lyon v. California, 454 U.S. 865 (1981) 5

MacDonald, Sommer & Frates v. Yolo County,

106 B.Ct. 3661 (1966) 1, 7, 8, 9, 26

Martin v. Smith, 184 Cal.App.2d 571, 7 Cal.Rptr.

BN CIID accccieuisninemsinishnesnineeoennienteesnenmemsteesiasesasetaninnpttaeent 5

Martin v. Waddell, 41 U.S. (16 Pet) 367 (1842) ...11, 12, 23

Matcha v. Mattox, 711 S.W.2d 95 (Texas 1986)

cert. den., 107 S.Ct. 1911 (1987) 15, 23

Matthews v. Bay Head Imp. Assn., 471 A.2d 355

(N.J. 1984), cert. den. 469 U.S. 820 ne eeemnenemnnnenne 24

Miiler v. Lutheran Conference and Camp Associa-

tion, 331 Pa. 241, 200 A. 646 (1938) cence eenmnneenn 14

Moore v. Sims, 442 U.S. 415 (1979) ccccccccccccnrnnnnmumnn 8

Murdock v. City of Memphis, 87 U.S. (20 Wall.)

ITT 7 ssn iaheulpabieaheliasaenineiene 1

Natural Soda Prod. Co. v. City of Los Angeles,

23 Cal.2d 193 (1943), cert. den. 321 U.S. 793

III 1. sceisinensnnianinsennenisebsnaiisaeapbieceieniiaailpeaniieatie 16, 19, 20

Nedtweg v. Wallace, 237 Mich. 14, 208 N.W. 51

(1926), affd. on rehearing, 211 N.W. 647 (1927) .... 14

Nevada v. United States, 463 U.S. 110 (1983) 0... 6

Oregon ex rel. State Land Board v. Corvallis

Sand & Gravel Co., 429 U.S. 363 (1977) 1, 7, 10, 11, 12, 27

Vil

TABLE OF AUTHORITIES—Continued

Page

Packer v. Bird, 137 U.S. 661 (1891) 10

People v. California Fish Co., 166 Cal. 576, 138

Bo. I linia tae ee 4, 5, 7 12, 25

People v. Gold Run D € M Co., 66 Cal. 138,

fe: £: Ere es 13

People v. Kerber, 152 Cal. 731 (1908) ... 12

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

| Fe Lae Rr tee ee ne CS eV +

San Diego Gas & Electric Co. v. San Diego, 450

a , BARR ee Tee 7,8

Shivley v. Bowlby, 152 U.S. 1 (1893) 00 11, 27

Sloan v. Biemiller, 34 Ohio St. 492 (1878) 4

Smith v. Youmans, 70 N.W. 1115 (Wis. 1897) 18

St. Louis v. Rutz, 138 U.S. 226 (1891) 14, 15

State v. Cleveland & Pittsburgh Railroad Co., 94

Ohio St. 61, 113 N.E. 677 (1916) 0d

State v. Malmquist, 40 A.2d 534 (Vt. 1945) 18

State v. Parker, 200 S.W. 1014 (Ark. 1917) 0 17

State v. Sorenson, 271 N.W. 234 (Iowa 1937) 17,18

State v. Superior Court (Fogerty 1), 29 Cal.3d

240, 625 P.2d 256, 172 Cal. = 713, cert. —

454 U.S. 865 (1981) . Sane Kakiitinaseias

State v. Superior Court ( pra 29 Cal.3d 210,

625 P.2d 239, 172 Cal.Rptr. 696, cert. den., 454

Ff Se fs eR eerie 4, 5, 12, 13, 26

Summa Corp. v. California ex rel. State Lands

Comm., 466 U.S. 198 (1983) . 21

Swanson v. United States, 789 F.2d 1368 (9th

Cir. 1986) .... 16, 24

vill

TABLE OF AUTHORITIES—Continued

Page

Taggert v. Jaffrey, 76 A123 (NH. 190) nn nnccccee conn nne 18

Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency, 638 F.Supp. 126

(D. Nev. a appeal docketed, No. 86-2266

(Sa Gis: SORT Gi, Te) cn. 3

Taylor v. Underhill, 40 Cal. 471 (1871) . 12

Tidal Oil Co. v. Flanagan, 263 U.S. 444 (1924) 23

United States v. Akers, 651 F.Supp. 320 (E.D. Cal.

1987) 24

United States v. Cherokee Nation of Oklahoma,

107 S.Ct. 1487, 94 L.Ed.2d 704 (1987) 23, 24

United States v. Little Lake Misere Land Co., 412

U.S. 580 (1973) {ts fd eerie a LE OO 27

United States v. Rands, 389 U.S. 121 (1967) 23, 24

United States v. Riverside Bayview Homes, Inc.,

106 S.Ct. 455 (1985) .. sia 9

United States v. Salerno, 107 S.Ct. 2095 (1987) ........ 8

United States v. Willow River Co., 324 U.S. 499 (1944) 24

Village uci Pewaukee v. = 79 N.W. 436 a

1899) .. ali cealasiii eine 17, 18

Wilbour v. “Gellagher, 462 P.2d 232 > (Wa. 00),

cert. den. 450 U.S. 878 (1970) nnn ccceccesesssssnsesemnnseeen 16, 18, 19, 20

Williamson County Regional Planning Comm’n v.

Hamilton Bank, 473 U.S. 172 (1985) ..... miele & BE

Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970) .......... scans ae

TABLE OF AUTHORITIES—Continued

Page

STaTuTES

28 United States Code section 1257(3) (1982) .......... 1, 8,10

42 United States Code section 1983 ....... 4

California Civil Code section 830 2

California Civil Code section 1014 ccc 16

California Public Resources Code section 6312. SS aaaen 25

TExtTs

Althaus, Public Trust Rights, U.S. Dept. of Inter-

ior (Nov. 3, 1978) 11

1 Clark, Waters and Water Rights, § 36.4(A) (1967

ed.) . 11

Pedihink. The Law of Waters and Water Rights,

§ 59, p. 272 (1904 ed.) 17

F. Clark, The Law of Surveying and Boundaries,

§ 572 (4th ed. 1976) . 16

Sax, The Public Trust Doctrine in Natural Re-

source Law: Effective Judicial Intervention,

eR 11

Solicitor’s Opinion, ————- of Interior, 25

L.D. 510 (1897) . rack ena 11

Tiffany, Law of Real Dintinis § 1222 (3d ed.

1939) 16

MISCELLANEOUS

United States Constitution, article IIT, section 2,

a ERT a ce rsa) nee ee 1,10

California Constitution, article X, section 4 (1986),

enacted in 1879 as article XV, section 2 2,3

30 Ops.Cal.Atty.Gen. 262 (1957) 15, 20, 24

43 Ops.Cal.Atty.Gen. 291 (1964) cscs 11, 19

JURISDICTION

Petitioners in these cases seek to invoke this Court’s

jurisdiction under 28 United States Code section 1257(3)

(1982). This Court lacks jurisdiction for at least two

basic reasons.

1. Assuming petitioners’ claims that the decisions

of the courts below could give rise to an uncompensated

‘‘taking’’ in violation of the Constitution, California has

not rendered a final determination of petitioners’ rights

that can give rise to a ripe taking claim under Williamson

County Regional Planning Comm’n v. Hamilton Bank, 473

U.S. 172 (1985), and its progeny, MacDonald, Sommer &

Frates v. Yolo County 106 S.Ct. 2561 (1986), and First

English Evangelical Lutheran Church v. County of Los

Angeles, 107 S.Ct. 2378 (1987).

2. Pursuant to Oregon ex rel. State Land Board v.

Corvallis Sand & Gravel Co., 429 U.S. 363 (1977), the

Court of Appeal decision at issue merely applies state

property law relating to the extent of public and private

interests in California’s navigable waters and their under-

lying beds, and thus does not present a substantial federal

question. (See Murdock v. City of Memphis, 87 U.S. (20

Wall.) 590 (1875).)

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The principal provision of the Constitution at issue

is article ITI, section 2, clause 1, which provides in part:

‘‘The judicial Power [of the United States] shall

extend to... Cases... [and] to Controversies. ...’’

The principal federal statutory provision at issue in this

case is 28 United States Code section 1257 (1982), which

provides in part:

‘‘Final judgments or decrees rendered by the

highest court of a State in which a decision could be

had, may be reviewed by the Supreme Court... .”’

Also relevant is California Constitution article X, sec-

tion 4 (1986), enacted in 1879 as article XV, section 2, prior

to issuance of several of the grants in the instant cases,

which in pertinent part provides:

‘No individual, partnership, or corporation claim-

ing or possessing the frontage or tidal lands of a har-

bor, bay, inlet, estuary, or other navigable water in

this State, shall be permitted to exclude the right of

way to such water whenever it is required for any

public purpose, nor to destroy or obstruct the free

navigation of such water; and the Legislature shall

enact such laws as will give the most liberal construc-

tion to this provision, so that access to the navigable

waters of this State shall be always attainable for the

people thereof.’’

ray

STATEMENT OF THE CASE

These cases arise out of disputes over interests of

the public, and private shoreowners, involving California’s

largest lake, Lake Tahoe. Originally, the parties saw the

matters as winner-take-all boundary disputes. California,

invoking her sovereign title to the beds of navigable, non-

tidal lakes and rivers, claimed a high-water boundary, and

full ownership rights up to that line. The shoreowners,

petitioners herein, claimed the State did not have what it

claimed because, among other reasons, California Civil

Code section 830, passed in 1872, relinquished the State’s

interest between high and low-water. Both sides have lost

on these broad claims. The California court held that the

State’s title to lands between high and low water had

been given up, but that a public trust interest had been

retained. Petitioners here attack the validity of the public

trust doctrine on its face. This Court is asked to aid the

shoreowners in their battle to overturn the Supreme Court

of California’s balanced and middle path, one which has

never been applied specifically to petitioners; which draws

for its authority upon common law precepts well within

the realm of petitioners’ expectations; and which, on its

face, only prohibits petitioners from developing Lake

Tahoe however they please.

1. Lake Tahoe, California’s largest lake, like all of

California’s navigable waters, has witnessed a crushing

assault of development in recent years. (See Lake Coun-

try Estates v. Tahoe Planning Agency, 440 U.S. 391, 393,

n. 2 (1979); Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Regional Planning Agency, 638 F.Supp. 126, 128-

129 (D. Nev. 1986), appeal docketed, No. 86-2266 (9th Cir.

July 3, 1987).)

2. Petitioners are owners of littoral lands bordering

the lake, and trace their title to federal grants, some made

after the passage of what is now article X, section 4 of

the California Constitution. Neither the petitions for

certiorari, nor the record in general, disclose exactly what

petitioners do with their lands, what they want to do with

them, or what they need to do with them to sustain rea-

sonable and profitable use. (But see this Court’s rule 21.5

1986).) They believe generally, however, that Cali-

fornia’s retained ‘‘public trust’’ interest in littoral prop-

erty overlaps and exceeds ‘‘reasonable land use planning

through adoption of zoning laws under the police power’?

(petition at 9), regardless of the different nature of the

doctrine and how unobtrusive it may be in a particular

case.

3. In 1977, the Attorney General of California sought

to establish that the State owned in full every property

interest in the lands underlying Lake Tahoe up to the

high water mark, based on claims to the beds of navigable,

non-tidal lakes and rivers held by California by reason of

her sovereignty. After the petitioners sued under both

state law and 42 United States Code section 1983 to block

the State Land Commission’s attempt to record such

claims in the offices of county recorders throughout Cali-

fornia, the Supreme Court of California rejected che

State’s claims.

In its companion decisions in State v. Superior Court

(Fogerty I), 29 Cal.3d 240, 247, 625 P.2d 256, 172 Cal.

Rptr. 713, cert. den., 454 U.S. 865 (1981) (Petitioners’ Ap-

pendix A-21) and State v. Superior Court (Lyon), 29

Cal.3d 210, 625 P.2d 239, 172 Cal.Rptr. 696, cert. den., 454

U.S. 865 (1981) (Petitioners’ Appendix A-35), the state

court held that although California had received the beds

of its navigable waters to the high-water mark on state-

hood in 1850, the enactment of California Civil Code sec-

tion 830 in 1872 should, in light of subsequent construction,

be viewed as destroying the State’s fee title between high

and low water. (See Lyon, supra, 29 Cal.3d at 225-226.) |

The Supreme Court of California made clear that before

the State could interfere in any manner with ‘‘ previously

constructed docks, piers and other structures in the shore-

zone’’ (Fogerty I, supra, 29 Cal.3d at 249), full and ade-

quate compensation must be paid under both state and

federal law.

4. At the same time, that court ruled that Civil Code .

section 830 showed no intent on the part of the Legisla-

ture, with respect to lands between low and high-water, to

abrogate ‘‘the trust described in City of Berkeley v. Super-

ior Court, 26 Cal.3d 515, 606 P.2d 362, 162 Cal.Rptr. 327,

cert. den., 449 U.S. 840 (1980).’’ (Lyon, supra, 29 Cal.3d

at 226.) City of Berkeley relied on a long line of California

decisions, e.g., People v. California Fish Co., 166 Cal. 576,

138 P. 79 (1913), which in turn found persuasive support

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

(1892).

5. The Lyon and Fogerty I decisions, from which

these cases arise, reaffirm ‘‘that these plaintiffs [along

Lake Tahoe’s shore] may use the shorezone for any pur-

poses which are not incompatible with the public trust’’

(Fogerty I, supra, 29 Cal.3d at 249 (citing City of Berke-

ley)), never stating whether any purpose petitioners in

fact entertain was barred under state law. And prior Cali-

fornia case law, not in any way limited by Fogerty I, rec-

ognized many uses compatible with the trust interest, in-

cluding mineral exploration (Boone v. Kingsbury, 206 Cal.

148, 273 P. 797 (1928), appeal dism. and cert. den., 280 U.S.

517 (1929)), and the construction of additional docks,

wharves, motels, restaurants, shopping complexes, and,

even, parking lots. (Martin v. Smith, 184 Cal.App.2d 571,

7 Cal.Rptr. 725 (1960).) Petitioners sought certiorari.

This Court denied review. (Lyon v. California, 454 U.S.

865 (1981).)

6. To determine the high-water mark for Lake Tahoe,

and hence the potential reach of the public trust doctrine,

the Supreme Court of California was required to decide

between petitioners’ claim for ‘‘the ‘last natural’ water

mark of the lake,’’ and the State’s claim that ‘‘the bound-

ary should be fixed by assessing the lake in its current

condition.’’ (Fogerty I, supra, 29 Cal.3d at 247-248.) The

state court adopted the ‘‘current level’’ test, noting that

petitioners’ expectation interests in the ‘‘natural’’ level

had been eroded over a period of a century by the dam in

the Truckee River, into which Lake Tahoe empties, now ad-

min a

ministered by the United States pursuant to the Newlands

Reclamation Project. (See Nevada v. United States, 463

U.S. 110 (1983).)

7. The Court of Appeal decision of which petitioners

complain (Fogerty v. State, 187 Cal.App.3d 224, 231 Cal.

Rptr. 810 (Cal. App. 1986) (Fogerty II) (Petitioners’ Ap-

pendix A-1) simply implements the 1981 California Su-

preme Court ruling with respect to fixing the high-water

mark, without passing on any of the uses that may be

‘incompatible with the public trust.’’ The Court of Ap-

peal declared the high-water mark to be located at the

highest elevation actually reached by the lake in five

sequential years, the period required for the acquisition

of prescriptive rights in California. Other than the fixing

of this upper boundary at 6,228.75 feet above sea level,

nothing has changed since this Court denied review in

- 1981. No actions for injunctive relief have been brought

by the Attorney General, or anyone else; motorboats still

pull up to the docks at Lake Tahoe; private residents,

so far as the record discloses, still exclude the public gen-

erally from their property by the usual signs, fences,

hedges, and lawsuits for trespass and ejectment. Consist-

ent with planning schemes administered by local govern-

ment and the bi-state regional planning agency, as well as

regulation of the U.S. Army Corps of Engineers, land use

in the shorezone continues unaffected by these decisions.

fay

REASONS FOR DENYING THE WRIT

INTRODUCTION

Comparison of the record in this case with the factors

that counsel plenary review under the certiorari jurisdic-

tion show that this case is completely unworthy of this

Court’s limited resources. Even assuming that petition-

ers’ theory of ‘‘judicial takings’’ may have merit in ‘‘ex-

treme case[s]’’ (Petition at 16), no such ‘‘dramatic result’’

(td.) is at issue here. All the Supreme Court of California

has done is tentatively recognize that lands below the

current high-water mark in Lake Tahoe are potentially

subject to judicially-fashioned trust interests, all of which

may be curtailed or adapted to dovetail with private needs

(and even wants). Unless this Court is ready to abandon

its well-entrenched rules against consideration of broad

facial challenges under the Takings Clause (rules which

have been reiterated every term since review was last

denied), or desires to overrule its considered opinion in

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

Gravel Co., supra, 429 U.S. 363, there is no proper federal

question on this record. Either the petition must be dis-

missed for want of a final judgment, per San Diego Gas

& Electric Co. v. San Diego, 450 U.S. 621 (1981), or the

writ should be denied under the reasoning of MacDonald,

Sommer & Frates v. Yolo County, supra, 106 S.Ct. 2561.

Because petitioners are essentially challenging the

public trust doctrine on its face, they confront an ‘uphill

battle’? on an ‘‘especially steep’’ slope. (Keystone Bi-

tuminous Coal Ass’n v. DeBenedictis, 107 S.Ct. 1232, 1247

(1987).) In such cases, this Court ‘‘properly refuses to

look into the possibility that harsh results [will oceur].’’

(Connally v. Pension Benefit Guaranty Corp., 106 S.Ct.

1018, 1032 (1986) (O’Connor, J., concurring).) As this

Court noted this past term, ‘‘[a] facial challenge .. .

is, of course, the most difficult challenge to mount suc-

cessfully, since the challenger must establish that no

set of circumstances exists under which the [law] would

be valid.’? (United States v. Salerno, 107 S.Ct. 2095, 2100

(1987).) Petitioners gain nothing by pointing out that

trust interests may be implicated in over 4,000 miles of

California shorezone. To use this case as a vehicle for

aborting state court processes yet to be had with respect

to thousands of parcels is just one more factor counsel-

ing against review. As in Moore v. Sims, 442 U.S. 415

(1979), here ‘‘the broader the challenge, the more evident

[petitioners’ ripeness problem] becomes.’’ (Jd., at 428.)

Nor should it be of any concern to this Court that the

instant judgment would be final if, for example, petition-

ers complained of a breach of procedural due process dur-

- ing the appellate process (cf. Evitts v. Lucey, 469 U.S. 387,

393 (1985)), instead of a violation of the Takings Clause

arising out of the substantive decisions of the California

courts. For this court has long recognized that when ‘‘fur-

ther proceedings are necessary to resolve the federal ques-

tion whether there has been a taking at all,’’ this Court

has no jurisdiction under 28 United States Code section

1257 (1982). (San Diego Gas & Elec. v. San Diego, supra,

450 U.S. at 633.) Likewise, when for purposes of its own

procedure a state court has dismissed a taking claim with-

out prejudice to its renewal following further proceedings

under the finality rule, this court has treated such deci-

sions as ‘‘final’’ for purposes of section 1257, but has af-

firmed on the ground that the answer to whether ‘‘prop- .

erty has been taken’’ is still unknown. (MacDonald, supra,

106 S.Ct. at 2568-2569.) These ‘‘normal delays’’ in litiga-

tion are simply not takings (First English, supra, 107 S.Ct.

at 2389), and adjudication in this Court is thus precluded

by ‘‘the very nature of the inquiry required by the Just

Compensation Clause.’’ (Williamson County, supra, 473

U.S. at 190.)

Here, California’s courts, as is their right, have bifur-

cated the inquiry over the public trust interest in the Lake

Tahoe shorezone. The first part of the litigation, recog-

nizing that such an interest may be asserted, is over and

is probably final for purposes of section 1257, just as the

state court judgment in MacDonald was final. The second,

and crucial part of the case, concerning whether and how

the public trust will be applied, has yet to commence for

the basic reason that no one has sought to invoke the trust.

Petitioners have not been harmed any more than any land-

owner is harmed by the passage of a general zoning or

regulatory law for which variances and exemptions can

be obtained. Indeed, because no one has asserted a trust

interest, petitioners are harmed a lot less. The suggestion

that this Court’s scarce resources are needed at this time

to save petitioners from the Supreme Court of California

is wholly fanciful. This case is in exactly the posture of

the MacDonald and Willtamson County cases as well as

United States v. Riverside Bayview Homes, Inc., 106 S.Ct.

455 (1986) and Hodel v. Virginia Surface Mining and Rec-

lamation Assn., 452 U.S. 264 (1981). It should for this rea-

son be rejected for review, just as this Court has rejected

similar claims that the courts of our sister states have un-

lawfully ‘‘taken’’ property by judicial decree. See Ariyoshi

v. Robinsion, 106 S.Ct. 3269-3270, on remand, 796 F.2d 339

(9th Cir. 1986).

More fundamentally, petitioners’ protests notwith-

standing, granting review in this case would only plunge

this Court into a swamp that not even the most activist

Justices of the Lochner era would have entered. No one

disputes that state courts are subject to the strictures of

the Fourteenth Amendment, but it would be astonishing if

the rulings of the Supreme Court of California on matters

as vital to California’s sovereignty as the status of the

beds underlying its navigable waters could provide ‘‘an

appropriate vehicle for a needed declaration that the Con-

stitution still protects real property against expropria-

tion.’’ (Petition at 17.) At worst, and giving our state

courts no deference on matters of local property law, this

case only reflects high-stakes litigation of the kind that

often takes place in state courts, but which this Court, for

many reasons, does not, and should not, review under

article III and 28 United States Code section 1257(3).

1. THE STATES RECEIVED THE BEDS OF

THEIR NAVIGABLE WATERS TO HIGH

WATER MARK ON THEIR ADMISSION

TO THE UNION. STATE LAW DETER-

MINES THE NATURE AND EXTENT TO

WHICH THESE LANDS MAY BE SUB-

SEQUENTLY TRANFERRED

A. State Law Governs The Disposition Of

Sovereign Lands

California acquired the beds of all her navigable wa-

ters on statehood under the constitutional equal footing

doctrine. (Oregon ex rel. State Land Board v. Corvallis

Sand & Gravel Co., supra, 429 U.S. 363.) It was clear early

on that the navigable waters acquirec by the states were

all waters navigable in fact, and not merely tidal waters.

(See Packer v. Bird, 137 U.S. 661, 670 (1891).) See also

Colberg v. State of California, 67 Cal.2d 408, 423, 62 Cal.

Rptr. 401, 432 P.2d 3 (1967), cert. den, 390 U.S. 949 (1968).

The initial landward boundary of these sovereign lands

is fixed by federal law. (Oregon ex rel. State Land Board

v. Corvallis Sand € Gravel Co., supra, 429 U.S. 363 at 376.)

And that initial boundary, under federal law, is high water.

(Barney v. Keokuk, 94 U.S. 324, 338 (1876) ; see Solicitor’s

Opinion, Departmert of Interior, 25 L.D. 510, 511 (1897) ;

Shively v. Bowlby, 152 U.S. 1, 42-43 (1893); Martin v.

Waddell, 41 U.S. (16 Pet) 367 (1842); Pollard’s Lessee v.

Hagen, 44 U.S. (3 How) 212 (1845); Bowman’s Devisees

v. Wathen, 2 McLean 382 (1842). The extent of public and

private rights in a state’s navigable waters, thereafter, is

to be determined by state law. (Barney v. Keokuk, supra,

94 U.S. 324; Oregon ex rel. State Land Board v. Corvallis

Sand & Gravel Co., supra, 429 U.S. 363.) The established

law in California, as in many other states (see Sax, The

Public Trust Doctrine in Natural Resource Law: Effective

Judicial Intervention, 68 Mich. L.Rev. 471 (1970) ; 1 Clark,

Waters and Water Rights, § 36.4(A), pp. 196-197 (1967

ed.) ; Althaus, Public Trust Rights, U.S. Dept. of Interior

(Nov. 3, 1978)), is to the effect that, absent clear and ex-

press indications of legislative intent, the courts will not

construe a grant of sovereign lands as extinguishing the

public easement for commerce, navigation and fisheries

with which such lands are impressed. (E.g., People v.

California Fish Co., supra, 166 Cal. 576; Forestier v.

Johnson, 164 Cal. 24, 127 P. 156 (1912); City of Oak-

land v, Oakland Water Front Co., 118 Cal. 160, 50 P. 277

1897).) Indeed, a State attorney general’s opinion relied

on by petitioners expressly states that all lands below nav-

igable waters, whether tidal or non-tidal, are held in trust

to the high-water mark. (43 Ops.Cal.Atty.Gen. 291, 294

(1964).) Accordingly, the ruling of the California Supreme

Court that the 1872 Legislature had passed the State’s fee

title to riparian owners but had failed to terminate the

public trust interests to high-water in Fogerty I was wholly

predictable and consistent with settled principles of state

law.'

This rule is not peculiar to California. It was enun-

ciated by the New Jersey court as early as 1821 in Arnold

v. Mundy, 6 N.J.L. 1 (1821), and first recognized by this

Court in Martin v. Waddell, supra, 41 U.S. (16 Pet) 367,

409-413. A thorough discussion of the principles under-

lying it was undertaken by this Court in Jllinois Central

Railroad v. Illinois, supra, 146 U.S. 387.2, More recently

the Supreme Court of Florida confirmed public rights to

navigable waters irrespective of whether the beds have

1. Indeed the court's ruling reflects a retraction of a state

rule that was originally much more harsh. Early California cases

held that grants of sovereign trust lands made without express

legislative authorization were totally void. (E.g., People v. Ker-

ber, 152 Cal. 731 (1908); Kimball v. MacPherson, 46 Cal. 103

(1873); Taylor v. Underhill, 40 Cal. 471 (1871).)

Later cases, represented by People v. California Fish Co.,

supra, 166 Cal. 576, construed such grants to be valid, but sub-

ject to a retained public trust interest. This was the holding in

Lyon and Fogerty I.

2. Although Illinois Central Railroad v. Illinois, supra, 146

U.S. 387, described variously as the “lodestar” of public trust

law (Sax, supra, at 489), and the “seminal case” in this field

(City of Berkeley v. Superior Court, supra, 26 Cal.3d at 521), was

approvingly cited in the Lyon decision for the proposition that ’

state sovereign lands remain subject to the public trust (State

v. Superior Court (Lyon), supra, 29 Cal.3d at 227), neither Lyon

nor Fogerty / treats Illinois Central in any way other than what

it is: an eloquent expression of the common law rule that state

sovereign lands are impressed with a near-inalienable public

trust, and that grants of such lands remain impressed with the

public trust.

This construction makes it unnecessary to discuss petition-

ers’ startling suggestion that the //linois Central opinion was

somehow reversed by Oregon ex rel. State Land Board v. Cor-

vallis Sand & Gravel Co., supra, 429 U.S. 363. (Fogerty petition,

p. 11, n. 7.) Illinois Central may have been a pre-Erie decision,

but nonetheless it applied Illinois law. (See Appleby v. New

York, 271 U.S. 364 (1926).)

been transferred into private ownership. (Coastal Petro-

leum Co. v. American Cyanamid Co., 492 8.2d 339 (1986),

cert. den. sub nom. Mobil Oil Corp. v. Board of Trustees,

107 S.Ct. 950 (1987).)

Its application to nontidal, as well as tidal, navigable

waters in California is beyond question. Long before the

Lyon and Fogerty I decisions, the California court held in

1884, with reference to the Sacramento and American

Rivers:

‘‘The State holds the absolute right to all navi-

gable waters and the soils under them, subject, of

course, to any rights in them which may have been

surrendered to the general Government ... The soil

she holds as trustee of a public trust for the benefit

of the people; and she may, by her legislature, grant

it to an individual; but she cannot grant the rights

of the people to the use of the navigable waters flow-

ing over it; these are inalienable.’’ (People v. Gold

Run D & M Co., 66 Cal. 138, 151-152, 4 P. 1152, 1159

(1884).)

There is nothing unusual or unprecedented in a rule

of state law that leaves public trust rights impressed on

grants to private parties. For example, South Dakota and

North Dakota both have statutes similar to California’s

Civil Code section 830. In both states, these provisions

were held, as in California, to give a fee interest to up-

land owners down to low-water. Nevertheless, it was held

that the statutes did not extinguish public trust rights:

‘*While the title of the riparian owner on nav-

igable or public waters extends to ordinary low-water

mark, still his title is not absolute, except to ordinary

high-water mark, and as to the intervening shore space

between high and low water mark the title of the ripar-

ian owner is qualified or limited by and subject to the

rights of the public.’’ (Anderson v. Ray, 37 S.D. 17,

24, 156 N.W. 591, 595 (1916). Accord, Flisrand v.

Madison, 35 S.D. 457, 152 N.W. 796 (1915) ; Hillebrand

v. Knapp, 65 8.D. 414, 274 N.W. 821 (1937); Sloan v.

Biemiller, 34 Ohio St. 492 (1878); State v. Cleveland

&€ Pittsburgh Railroad Co., 94 Ohio St. 61, 113 N.E.

677 (1916).)

In Montana, which has a similar statute, the rule is

the same:

‘*It is true that, while the abutting owner owns

to the low water mark on navigable rivers, still the

public have certain rights of navigation and fishery

upon... the strip in question (between high and low

water).’’ (Gibson v. Kelly, 15 Montana 417, 39 P. 517,

519 (1895).)

Other courts have also held that the trust attaches to lands

between high and low-water when the sovereign bed ex-

tends only to low-water. (See, e.g., Nedtweg v. Wallace,

237 Mich. 14, 208 N.W. 51 (1926), affd. on rehearing, 211

N.W. 647 (1927); Illinois Steel Co. v. Bilot, 109 Wis. 418,

85 N.W. 402 (1901); Miller v. Lutheran Conference and

Camp Association, 331 Pa. 241, 200 A. 646 (1938) ; Attorney

General v. Revere Copper, 152 Mass. 444, 25 N.E. 605

(1890).)

B. A Riparian Boundary Is Ambulatory.

State Law Controls The Effects Of Ac-

cretion, Erosion, Reliction, And Sub-

mergence

The boundary between public and private interests on

navigable waters is an ambulatory one, determined by state

law. (Hardin v. Jordan, 140 U.S. 371, 382 (1891).) State

law controls the nature of the fee acquired by upland own-

ers, Whether increased or diminished by the processes of

accretion, erosion, reliction, avulsion or, as here, submerg-

ence. The title to land acquired by accretion or its counter.

part, submergence, has long been held to be *‘... a title

acquired under operation of the law of the State, which

each State determines for itself.’’ (St. Louis v. Rutz, 138

U.S. 226, 250 (1891); Barney v. Keokuk, 94 U.S. 324, 337

(1896).)

The owner of lakefront land, like the holder of a beach

house (cf. Matcha v. Mattox, 711 S.W.2d 95 (Texas 1986)

cert. den., 107 S.Ct. 1911 (1987)), may suffer from the

effects of erosion or submergence, whether natural or

artificial, and may benefit from accretion. Under the

common law there is no distinction as to whether changes

in water boundaries were artificially or naturally caused.

(County of St. Clair v. Lovingston, 90 U.S. (23 Wall) 46

(1874).)

Here, the courts chose to apply these common law

principles, and fix the high and low water marks at the

actual, established levels of Lake Tahoe with which littoral]

owners have been living for many years.’ (Fogerty I,

supra, 29 Cal.3d at 247-249.) Its opinion is both well-

founded in precedent and practical.

The petitioners’ apparent contention that the States’

sovereign boundaries on non-tidal waters extend to the

ordinary high (or low) water mark of the waterway in its

‘‘last natural condition’’ has no support under traditional]

common law principles or under California’s interpretation

of the common law. Under common law, the general rule

is that title to the land follows changes in the shoreline,

regardless of whether those changes are naturally or arti-

ficially caused. (See County of St. Clair v. Lovingston,

3. Indeed, when the artificial levels of the Lake were es-

tablished in the 1930’s, a higher level than the one in question

was approved by a poll of property owners. (Defendants’ Exh.

11, CT 3150; 30 Ops.Cal.Atty.Gen. 262, 266.)

Te TE

supra, 90 U.S. (23 Wall.) at 68.)* The courts also have

long held, without reference to prescriptive rules governing

upland boundary disputes, that long-established water lev-

els give rise to property rights regardless of their cause.

(City of Los Angeles v. Aitken, 10 Cal.App.2d 460 (1935) ; 1

see also Clement v. State Reclamation Board, 35 Cal.2d 628 |

(1950); Natural Soda Prod. Co. v. City of Los Angeles,

23 Cal.2d 193 (1943), cert. den. 321 U.S. 793 (1944):

Chowchilla Farms, Inc. v. Martin, 219 Cal. 1 (1933); Wil-

bour v. Gallagher, 462 P.2d 232 (Wn. 1969), cert. den. 450

U.S. 878 (1970); Diana Shooting Club v. Lamoreaua, 114

Wis. 44, 89 N.W. 880 (1902).)° |

The prescriptive rationale further supports this. Thus |

the state’s boundary continues to move landward when

water levels rise as a result of a dam or like condition,

causing ‘‘artificial submergence.’’ In opinions character-

ized by petitioners as ‘‘one old case from Arkansas and |

4. There are a few exceptions to this general rule, none

of which are applicable here. Under common law, the bound-

ary does not shift where there has been a sudden and percep-

tible “avulsion” or, analogously, where a lakebed has been

uncovered by intentional drainage, reclamation or diversions.

(E.g., F. Clark, The Law of Surveying and Boundaries, § 572 (4th

ed. 1976); Tiffany, Law of Real Property, § 1222 at 1083 (3d ed.

1939).) The state court’s determination that these rules did not

apply to this situation is conclusive here.

In addition, California Civil Code section 1014 limits an

upland owner’s right to accretions to those caused by natural

forces only. (Carpenter v. City of Santa Monica, 63 Cal.App.2d |

772, 787-788, 147 P.2d 964, 971-973 (1944).) Section 1014 is

inapplicable here because the artificial raising of Lake Tahoe

by means of a dam has resulted in submergence of upland—

not an accretion. Again, the state court's interpretation of the

meaning of California law is conclusive in this Court.

5. A federal appellate court recently applied this rule to

hold the Corps of Engineers had acquired jurisdiction over the

artificially submerged portions of Lake Pend Oreille. (Swanson

v. United States, 789 F.2d 1368 (9th Cir. 1986).)

another from Iowa’’ (Fogerty petn., p. 14) the Arkansas

and Iowa courts held that land submerged by the erection

of a dam or levee system on a navigable lake becomes the

property of the State, as ‘‘trustee for the public,’’ by vir-

tue of prescription. (State v. Parker, 200 S.W. 1014, 1015-

1016 (Ark. 1917); State v» Sorenson, 271 N.W. 234, 238-

239 (lowa 1937); see also Village of Pewaukee v. Savoy,

79 N.W. 436, 437 (Wis. 1899); Diana Shooting Club v.

Lamoreauz, supra, 89 N.W. at 884; Farnham, The Law

of Waters and Water Rights, §59, p. 272 (1904 ed.).)

Petitioners’ characterization of the considered opinions

of the highest courts of these sovereign states does

not do them justice. It does, however, recognize that

is neither new nor novel to adopt a rule of property

based on long-established water levels. Significantly,

the Parker case revolved around a conflict over pub-

lic trust uses—one between members of the public and

members of The Five Lakes Outing Club, over use of some

1,000 acres inundated by a levee in 1905. Although the

club retained ownership of the underlying bed of this lake,

the court held that it could not exclude the public from

the waters, because the state, as trustee for the public,

had acquired title by prescription. (Zd., 200 S.W. at 1015.)°®

6. The Parker case similarly belies petitioners’ conten-

tions that prescriptive rights must arise only if the water levels

are raised by the state. In Parker, the dam had been built by

a local levee district, not the state. (/bid.) California case law

is directly consistent in this regard. In Bohn v. Albertson, 107

Cal.App.2d 738 (1951), Frank’s Tract, formerly privately owned

farmland, was inundated by a breach in a delta levee. Although

the owner retained title to the bed, the court held that he had

no power to exclude members of the public seeking entry by

boat for public trust purposes—i.e., hunting and fishing. At

most he retained power to reclaim the land within a reasonable

time. (/d., 107 Cal.App.2d at 749; see also Forestier v. Johnson,

(Continued on following page)

The Washington Supreme Court used much the same

reasoning in Wilbour v. Gallagher, supra, 462 P.2d 232,

cert. den. 400 U.S. 878. In that case, the court enjoined

a fill placed on land periodically submerged by operation

of a dam across the outlet of Lake Chelan. The land was

held in fee by the defendants. Absent the raising of water

levels by the dam, the defendants’ land would have been

permanently dry. The court ordered defendants to re-

move the fill since it obstructed navigation, then discussed

the effect of the dam on the lake:

‘*. . . where the waters of a navigable body are

periodically raised and lowered by artificial means,

the artificial fluctuations should be considered the

same as a natural fluctuation with the rights of the

public being the same in both situations....”’ (Jd.,

462 P.2d at 238.)

(Accord, Goodrich v. McMullan, 187 N.W. 368 (Mich. 1922)

[dam owner acquired prescriptive right to overflow littoral

lands and maintain lake level three feet above natural

level]; Hass v. McManus, 126 N.W. 462 (Mich. 1910)

[riparian owners have right to maintenance of existing

dam-regulated levels]; Smith v. Yowmans, 70 N.W. 1115

(Wis. 1897) [artificial outlet maintained for 20 years ‘‘be-

came the natural outlet with all its legal incidents and con-

sequences’’; dam operators acquired prescriptive right to

flood plaintiff’s land to new high-water level]; Village of

Pewaukee v. Savoy, supra, 79 N.W. 436.)

(Continued from previous page)

supra, 164 Cal. 24 (public’s right to fish, hunt over periodically

submerged tidelands granted in fee to private owners); Taggert

v. Jaffrey, 76 A. 123, 125 (N.H. 1910): “The stream had been

changed in a manner to indicate that the alteration was per-

manent. There are prescriptive rights’; State v. Malmquist, 40.

A.2d 534, 538 (Vt. 1945) (artificial, dam-established lake level

“has become the natural level’; owner could not lower against

objections of littoral landowners.)

Of course this theory works on behalf of upland land-

owners as well as the sovereign state. The appellate

courts of this state have held a number of times the land-

owner may acquire a vested interest in a long-continued

diversion of waters (Clement v. State Reclamation Board,

supra, 35 Cal.2d 628; Natwral Soda Prod. Co. v. City of

Los Angeles, supra, 23 Cal.2d at 197; Chowchilla Farms,

Inc. v. Marti, supra, 219 Cal. at 18) and may recover

damages if the level of a lake is lowered against his long-

established expectations. (City of Los Angeles v. Attken,

supra, 10 Cal.App.2d at 472, cited in Fogerty I, supra, 29

Cal.3d at 248, fn. 5.)

C. Petitioners Had Ample Remedies Under

State Law For Any Rights Lost By The

Raising Of Dam Levels

Littoral owners whose lands are affected by an arti-

ficial raising or lowering of waters have ample remedies

under state law. (City of Los Angeles v. Aitkin, supra, 10

Cal.App.2d 460.) However, if they fail to assert them in a

timely manner, both state and private owners may become

entitled to rely on the established artificial levels. (Nat-

ural Soda Products v. City of Los Angeles, supra, 23

Cal.2d at 197; Chowchilla Farms, Inc. v. Martin, supra, 219

Cal. at 18, cited in Fogerty I, supra, 29 Cal.3d at 248.)7

As petitioner Tahoe Shorezone Representation con-

cedes, the right to object to the elevated waters of the lake

7. See also 43 Ops.Cal.Atty.Gen. 291, 298 (1964) pointing

out that “an artificially caused change in the water line of a

lake or stream may come to be regarded as permanent,” al-

though the opinion goes on to state:

“(I]t is possible that the artificial change would not

result in a boundary change .. . if further changes in the

artificially influenced waters could be enjoined, the prac-

tical effect would be to change the boundaries.” (/d., at

298-299.)

and the corresponding public uses up to the elevation of

6229.1 has long since been lost (TSK petition, 18-19). The

Attorney General’s opinion cited by petitioner bears this

out in discussing the effect of the Truckee River Decree

on rights of the littoral owners:

‘*In our opinion, the right to an injunction is also

now barred, even assuming that the acts of the federal

officials in flooding littoral lands through operation

of the dam, without the United States first having ac-

quired rights to do so by condemnation, could have

been enjoined when the flooding first occurred [cita-

tions omitted]. Since- the littoral landowners have

failed for more than 40 years to obtain injunctive re-

lief, the equitable doctrine of laches would seem to bar

the granting of such relief now. Irrespective of the

applicability of any statute of limitations on such an

action, it is a familiar principle of equity that ‘unless

a litigant can show that he acted with reasonable dili-

gence in the assertion of his equitable rights, a court

of equity will turn a deaf ear to his plea.’ (Williams

v. Stilwell (1933), 217 Cal. 487, 490; Gillons v. Shell

Co. of California (9th Cir. 1936), 86 F.2d 600, 609-

619).’’ (30 Ops.Cal.Atty.Gen. 262, 272 (1957).)

The same reasoning obviously applies as between lit-

toral landowners and the State of California.

Obviously, littoral owners whose lands are affected

by an artificial raising or lowering of waters have ample

remedies under state law. They may seek injunctive relief,

or they may seek compensation. (City of Los Angeles v.

Aitken, supra, 10 Cal.App.2d 460.) However, if they fail

to do so in a timely manner, both state and private owners

may become entitled to rely on the established artificial

levels. (Natural Soda Products Co. v. City of Los Angeles,

supra, 23 Cal. 2d at 197; Chowchilla Farms, Inc. v. Martin,

supra, 219 Cal. at 18.) ;

The California court has accurately concluded, there-

fore, that the condition of the lake as it has existed since

the construction of a dam in 1870 should be utilized in

determining the lake’s high-water mark.®

2. THE ACQUISITION OF SOVEREIGN

RIGHTS UNDER STATE LAW GOVERN-

ING AMBULATORY WATER BOUND-

ARIES IS NOT RESTRICTED TO THE LO-

CATION OF THOSE BOUNDARIES IN 1850

Petitioners’ contention that the trust cannot exist on

lands to which the state did not acquire title at statehood

fails to comprehend the concept that riparian boundaries

are ambulatory in nature, and can rise or fall with water

levels. Furthermore, this proposition was expressly dis-

approved as a matter of state law in City of Los Angeles

v. Venice Peninsula Properties, 31 Cal.3d 288, 299, fn. 11

(1982). The subsequent reversal of that case by this Court

on other grounds in Swmma Corp. v. California ex rel.

State Lands Comm., 466 U.S. 198 (1983) did not affect that

holding.

In fact, this Court in Summa recognized the nature

and extent of the state’s public trust doctrine and indicated

that in circumstances where the 1851 federal validating act

controlling the transfer in question was not applicable, as

in the instant case, a different result would follow:

8. The cour pointed out in Fogerty | that adoption of

this method of fixing boundaries will make clarification of both

private and public rights considerably easier in a state where

virtually all of the lakes and rivers have been artificially regulated

since the nineteenth century. It is no rebuttal to this application

of state law to contend, as do petitioners Fogerty et al., that a

1957 study purported to fix a natural high waterline. (Petn., pp.

3-4, n. 1.) That study did not in fact or even purport to fix or

establish in any way a natural high-water line of Lake Tahoe.

It was a comprehensive water supply study of the lake which

included an estimate of what the levels might have been after

1900 in the absence of the dam constructed at the lake’s outlet

(TR 3367 et seq.). Moreover, even the petitioners did not urge

the elevation they suggest here in the proceedings below.

‘‘The Federal Government, of course, cannot dispose

of a right possessed by the State under the equal-

footing doctrine of the United States Constitution.

Pollard’s Lessee v. Hagan, 3 How. 212 (1845). Thus,

an ordinary federal patent purporting to convey tide-

lands located within a State to a private individual is

invalid, since the United States holds such tidelands

only in trust for the State. Boraz, Lid. v. Los An-

geles, 296 U.S. 10, 15-16 (1935). But the Court in

Borax recognized that a different result would follow

if the private lands had been patented under the 1851

Act. Id., at 19. Patents confirmed under the author-

ity of the 1851 Act were issued ‘pursuant to the au-

thority reserved to the United States to enable it to

discharge its international duty with respect to land

which, although tideland, had not passed to the State.’

Id. at 21. See also Oregon ex rel. State Land Board

v. Corvallis Sand & Gravel Co., 429 U.S. 363, 375

(1977); Knight v. United States Land Assn., 142 U.S.

161 (1891).’’ (466 U.S. at 205.)

Petitioners look to Brewer-Elliott Oil and Gas Co. v.

United States, 260 U.S. 77 (1922) to support their posi-

tion that the public trust easement cannot move up the

lakeshore as the waters rise. (Fogerty, petn. at p. 15.)

More to the point, this Court stated in the next sentence to

that quoted by petitioners:

‘**It is true that, where the United States has not

in any way provided otherwise, the ordinary incidents

attaching to a title traced to a patent of the United

States under the public land laws may be determined

according to local rules; but this is subject to the quali-

fication that the local rules do not impair the efficacy

of the grant or the use and enjoyment of the property

by the grantee. Thus the right of the riparian owner

under such grant may be lamited by the law of the

State either to high or low water mark or extended to

the middle of the stream. Packer v. Bird, 137 U.S:

661, 669.’ (Brewer-Elliot Ou and Gas Co. v. United

States, supra, 260 U.S. at 88; emphasis added. )

A water boundary is an ambulatory boundary. Its

movement, as between the state and private upland owners,

is determined by state law, and has been ever since Martin

v. Waddell, supra, 41 U.S. (16 Pet.) 367, if not before. It

does not present a federal question. (E.g., Matcha v. Mat-

tox, supra, 711 S.W.2d 95 (Texas, 1986), cert. den., 107

S.Ct. 1911.)

3. PETITIONERS, HAVING FAILED TO AL-

LEGE ANY DENIAL OF ECONOMIC USE

OF THEIR PROPERTY, DO NOT RAISE A

FEDERAL QUESTION COGNIZABLE BY

THIS COURT.

Petitioners have urged that the existence of a public

trust on privately held property between high and low-

water imposes invalid restrictions on their use of such

property. Assuming for purposes of argument, that a

state court’s declaration of common law can effect a tak-

ing,? their complaint fails to assert such a claim.

The possible exercise of the public trust on navigable

waters is no more a taking than is the proper exercise of

the navigational servitude. It is, ‘‘... not an invasion of

any private property rights in the stream or the lands un-

derlying it, for the damage sustained does not result from

taking property from riparian owners within the meaning

of the Fifth Amendment but from the lawful exercise of a

power to which the interests of riparian owners have al-

ways been subject.’? (United States v. Rands, 389 U.S. 121,

123 (1967); accord United States v. Cherokee Nation of

Oklahoma, 107 S.Ct. 1487, 94 L.Ed.2d 704 (1987).)

Setting public trust considerations aside, the interest

of a littoral owner between high and low-water is a quali-

9. See Gt. Northern Ry. v. Sunburst Co., 287 U.S. 358,

364-365 (1932); Tidal Oil Co. v. Flanagan, 263 U.S. 444, 450

(1924).

ee E

fied one to say the least. It is subject both to state and fed-

eral navigational servitudes to high-water. (See City of

Berkeley v. Superior Court, supra, 26 Cal.3d at 545, cert.

den. 449 U.S. 840; Colberg v. State of California, supra, j

67 Cal.2d 408, 416, cert. den. 390 U.S. 949; United States v.

Cherokee Nation of Okiahoma, supra, 107 S.Ct. 1487 ; United

States v. Rands, supra, 389 U.S. 121, 123; United States v.

Willow River Co., 324 U.S. 499, 509 (1944); see also

Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970).)" More-

over, consistent with the California rule, the federal navi-

gational servitude extends to the artificially-raised high-

water mark.'"' (Swanson v. United States, supra, 789 F.2d |

1368.) And at Lake Tahoe the littoral interest is subject to

periodic inundation up to an elevation above that set by

the California Court of Appeal whenever the federally-

appointed watermaster deems it appropriate. (See Foger-

ty II, supra, 187 Cal.App.3d at 224, 231, 235; see also 30

Ops.Cal.Atty.Gen. 262 (1957).)

The existence of a public trust on such lands does not

deprive petitioners of economic use of the lands between

high and low-water. Upland owners have taken a fee

subject w the retained public trust interest. The purchaser

of lands subject to the public trust ‘‘... may use the prop-

—_

10. The New Jersey Supreme Court has held that even

privately owned dry sand beaches controlled by a quasi-public

entity are subject to public right of access as reasonably neces-

sary. (Matthews v. Bay Head Imp. Assn., 471 A.2d 355 (N.J.

1984), cert. den. 469 U.S. 821.)

11. A federal district court recently affirmed applicability

of the Corps of Engineers’ jurisdiction over sdalhecrasted

wetlands under the Clean Water Act, as well, holding such lands

could be “navigable waters of the United States.” (United

States v. Akers, 651 F.Supp. 320 (E.D. Cal. 1987).)

erty as he sees fit, subject to the power of the state to

abate any nuisance he may create thereon, and to remove

any purpresture he may erect thereon.’’ Furthermore,

where improvements have been constructed on such lands

the state may not exercise the trust without compensating

the patentee. (People v. California Fish Co., supra, 166

Cal. at 599.)

Uses consistent with the public trust have been held,

under prior decisions of the California courts, to include

clearly economic and valuable ones, including mineral ex-

ploration (Boone v. Kingsbury, supra, 206 Cal. at 181-184)

and the construction of docks, wharves, motels, restaurants,

shopping complexes and parking areas. (Mariin v. Smith,

supra, 184 Cal.App.2d 571.) Waterfront docks, resorts and

buildings line the shores of San Franciseo Bay, Los Angeles

and San Diego harbors in mute reproach to petitioners’

dismal characterization of trust restraints. Petitioners

have been unable to cite a single instance in which littoral

landowners have been denied use of trust land held by them

in fee, nor have they found an instance in which the state

has exercised the trust and re-entered for the purpose of

furthering the trust.”

Petitioners cannot be heard to complain of being pre-

cluded from activities in which they have not even at-

tempted to engage. They are entirely free to pursue their

reasonable investment expectations by developing plans

and going through the same processes any other land-

owners must pursue. Indeed, the existence of the public

12. Even if it did so, of course, it would be required to

compensate the owner for any lawful improvements. (I/linois

Central Railroad Co. v. Illinois, supra, 146 U.S. at 455; People

v. California Fish Co., supra, 166 Cal. at 599; California Public

Resources Code section 6312.)

trust, while possibly inhibitive of fill or the construction

of incompatible improvements, does not, absent an im-

plementing statute or ordinance, even require petitioners

to obtain the affirmative approval of anyone. (Lyon,

supra, 29 Cal.3d at 232; Fogerty I, supra, 29 Cal.3d at 249.)

Indeed, before reaching some hypothetical public trust

barrier, would-be developers of Lake Tahoe’s shoreline

must first seek the approvals of the U.S. Army Corps of

Engineers and the regional and local planning agencies.

The record indicates that the applicable land use regula-

tions of these agencies would not permit any development

in the shorezone (to an elevation above the high water

mark in question) except for piers and other navigational

facilities which are also deemed consistent with the public

trust (TR 2708, 2719 et seq. ; 2740 et seq. ; 3030 et seq. ; 3148).

Thus, petitioners’ allegations that the mere existence

of the public trust along the shores of Lake Tahoe below

the high-water mark amounts to an unconstitutional taking

is unsupported by any facts. They do not present this

Court with a basis to judge whether their interests have

been adversely affected, reasonably or not. Clearly such

bald allegations are not ripe for consideration. (See Mac-

Donald Sommer @ Frates v. Yolo County, supra, 106 S.Ct.

2561; Williamson County Regional Planning Commission

v. Hamilton Bank, supra, 473 U.S. 172.)®

13. The question of the appropriateness of the damages

remedy for regulations which deny a landowner all use of hi

land as recently considered and explained by this Court in

First English Evangelical Lutheran Church of Glendale v. County

of Los Angeles, supra, 107 S.Ct. 2378, has not been, and cannot

be, rai in this case. Nor would it be appropriate in any

(Continued on following page)

This case was not ripe for review when petitioners

asked this court to review Fogerty I in 1981 (cert. den., 454

U.S. 865). It is no more ready now that an intermediate

appellate court has determined the location of Lake Tahoe’s

high-water mark at its current level. (See Ariyoshi v.

Robinson, supra, 106 S.Ct. 3269.)

CONCLUSION ;

In 1893 this Court observed that the states are free to

adopt their own rules of property, and that generalizations

should be undertaken with great caution. (Shively v.

Bowlby, supra, 152 U.S. at 26.)

As then-Justice Rehnquist stated in Oregon ex rel.

State Land Board v. Corvallis Sand & Gravel Co., supra,

429 U.S. 363:

‘*Under our federal system, property ownership

is not governed by a general federal law, but rather

by the laws of the several States. ‘The great body

of law in this country which controls acquisition, trans-

mission, and transfer of property, and defines the

rights of its owners in relation to the state or to pri-

vate parties, is found in the statutes and decisions of

the state.’ Davies Warehouse v. Bowles, 321 U.S. 144,

155 (1944). This is particularly true with respect to

real property, for even when federal common law was

in its heyday under the teachings of Swift v. Tyson,

16 Pet. 1 (1842), an exception was carved out for the

local law of real property. Jd., at 18. See United

States v. Little Lake Misere Land Co., 412 U.S. 580,

591 (1973).

(Continued from previous page).

event absent any showing of state implementation of the chal-

lenged decision which denied petitioners “all use” of their

property. (/d., at 2388-2389.)

‘‘This principle applies to the banks and shores

of waterways, and we have consistently so held.’’ (/d.,

at 378-379.)

Long ago, this Court wisely held that:

‘‘{I[]t is for the state court in cases such as this

to define rights in land located within the state, and

the Fourteenth Amendment, in the absence of an at-

tempt to forestall our review of the constitutional

question, affords no protection to supposed rights of

property which the state courts determined to be non-

existent.’’ (Fox River Co. v. R.R. Comm., 274 U.S.

651, 657 (1927).)

For these reasons, the petitions for a writ of certiorari

should be denied.

DATED: July, 1987.

Respectfully submitted,

Joun K. Van pe Kamp

Attorney General of the

State of California

N. Grecory Taytor

Assistant Attorney General

Davin B. Jupson

Deputy Attorney General

Jan S. STEVENS

Supervising Deputy Attorney

General/Counsel of Record

1515 K Street

Post Office Box 944255

Sacramento, CA 94244-2550

Telephone: (916) 324-5498

Attorneys for Respondents

State of California, et al.

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