The US Supreme Court has denied North Carolina's appeal of the 4th Circuit's decision in NC v Alcoa Power Gernerating, INC.. Every PLS in NC needs to be aware of this as it changes the test of a riparian boundary's navigability from the previous standard set in 1995. Please read the case, but here is a coarse summary:
Leaning heavily upon a Montana decision (PPL Montana, LLC v. Montana, 132 S. Ct. 1215 (2012) ) the court ruled that the classification of Navigable Waterway should be tested on a segment by segment basis, based on the water's navigability at the time of statehood (1789 for NC) and with watercraft commonly used at that time.
The previous NC definition hinged on commerce, which included rafting and kayaking. If a raft could float down the creek, then it was a navigable waterway and my client's boundary ended at mean high water. Every technological advancement in watercraft buoyancy could render a new navigable waterway. Now I only need to prove that it was common to portage around a particular section of larger rivers or to show that a dugout or skin-on-frame canoe or some other type of small vessel would not commonly be used on the segment.
There is no new definition of navigability in this case. This case is about the federal definition of navigability. Not the North Carolina definition.
I don't know anything about the NC definition, but under the federal definition there could never be new navigable water bodies created. The test of navigability is (and was) whether or not a river was navigable at statehood. So, in Alaska more modern forms of transportation would be considered than in North Carolona, but the advancements since North Carolina statehood have no effect on navigability there.
This case is?ÿ an application?ÿ of existing law to a particular situation. They do seem to leave a misleading impression on the power of portages to defeat a claim of navigability though. I am sure we will see this case misapplied in the future.?ÿ?ÿ
Thanks for bringing another interesting case to our attention.
In New York state we have two definitions for Navigable waterways.
The public maintains different sets of rights, depending on whether the stream is non-tidal and navigable-in-fact or tidal and navigable-in-law. For navigable-in-law waters, those in which the tide ebbs and flows, such as tidal waters, boundary waters and the Great Lakes, the public has a right to navigate and fish. However, for non-tidal rivers, where the tide does not ebb and flow (classified as navigable-in-fact), the public may navigate the waters, but may not use them for other purposes; the landowners retain the ??exclusive rights to the fisheries therein.?
In New York state we have two definitions for Navigable waterways.
The public maintains different sets of rights, depending on whether the stream is non-tidal and navigable-in-fact or tidal and navigable-in-law. For navigable-in-law waters, those in which the tide ebbs and flows, such as tidal waters, boundary waters and the Great Lakes, the public has a right to navigate and fish. However, for non-tidal rivers, where the tide does not ebb and flow (classified as navigable-in-fact), the public may navigate the waters, but may not use them for other purposes; the landowners retain the ??exclusive rights to the fisheries therein.?
Many states have passed laws regulating,differntiating, or even disposing their navigable waters. What the states do with their navigable waters is?ÿ question of state law (mostly).?ÿ Which waters are navigable is usually a question of federal law.
This gets more compmicated when states adopt a different definition of navigability under state law. When that happens federal law still controls?ÿwhich water bodies became state land at statehood, but state law will control which water bodies the state retains when private title originated with the state.?ÿ
There is no new definition of navigability in this case. This case is about the federal definition of navigability. Not the North Carolina definition.
I don't know anything about the NC definition, but under the federal definition there could never be new navigable water bodies created. The test of navigability is (and was) whether or not a river was navigable at statehood. So, in Alaska more modern forms of transportation would be considered than in North Carolona, but the advancements since North Carolina statehood have no effect on navigability there.
This case is?ÿ an application?ÿ of existing law to a particular situation. They do seem to leave a misleading impression on the power of portages to defeat a claim of navigability though. I am sure we will see this case misapplied in the future.?ÿ?ÿ
Thanks for bringing another interesting case to our attention.
This case was discussed at a continuing education class by Jerry Nave who is a professor of geomatics at NC A&T and Gary Thomson of NCGS.?ÿ I've learned to give them the benefit of the doubt and they both believe that this case limits or removes NC's ability to (re)define a navigable waterway.?ÿ This ruling seems to establish that title to river beds was transferred from Britain to each of the sovereign colonies then through the Constitution.?ÿ If the rights passed through the Constitution, then there is no congressional action (short of an constitutional amendment) that can make a more restrictive definition of a body of water's navigability, as NC did with their bizarre commerce ruling in 1995.
Too bad the SCOTUS didn't take this one on.?ÿ I suspect that in light of this ruling, hydro companies situated in other eastern states will force the issue.?ÿ In this case, Alcoa can now convey title to around 40 miles of river bed.?ÿ I wonder what that's worth??ÿ
Oh, I dont doubt that it has important implications for?ÿ North Carolinians I was just pointing out that there was no new definition for navigability. The important part of this case was the jurisdictional issue. Property that does not trace its title back to the state needs to use the federal definition, which this case didn't change.?ÿ
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Point taken.?ÿ My surveying career has been limited to the colonies.?ÿ In Maine, the rough test was whether or not the brook could be used to float timber.?ÿ I didn't realize that most of the country worked under the navigability at statehood criteria.
I wonder how this ruling would affect a parcel located in those areas of Tennessee that were considered NC at statehood?
I think the only difference in Tennessee would be the date used to determine navigability would be 7 years latter. Although Tennessee was part of the the state of North Carolina for about 5 months, it was ceded to the federal government before Tennessee statehood, so any rights to navigable rivers held by North Carolina were extinguished and gained be Tennessee, subject to any changes in navigability in the intervening 7 years.
I wonder if this issue has ever come up in a state formed directly from another state (e.g. Maine and West Virginia) ?
I learned a little something there...they say it had been argued in the past that the original 13 states gained their navigable riverbeds from the crown but this court says that is not the case, all States are the same having their riverbeds conferred by the Constitution at statehood.?ÿ The Equal Footing Doctrine applied that to the next 37 states.
Wow!?ÿ
Things could get interesting in some of the original 13 colonies.?ÿ Like NC, NY highest court has interpreted the law differently, and I believe has considered their opinion the highest controlling authority on the matter.?ÿ I know I didn't change my water law instruction based on the 2012 case; read it to not apply to the original 13 colonies.
Nav in fact has been liberally construed in NY because it only applied to a right of passage, not State ownership.?ÿ Under NY rulings portages don't preclude nav., and modes of transportation for commerce include recreation whether those modes were used at statehood or not.
I predict we'll still have nav in fact for right of passage unchanged.?ÿ But nav in fact for title under the federal?ÿinterpretation since 2012?ÿwill mean more lake beds are (or were initially) State owned.
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Wow!?ÿ
Things could get interesting in some of the original 13 colonies.?ÿ Like NC, NY highest court has interpreted the law differently, and I believe has considered their opinion the highest controlling authority on the matter.?ÿ I know I didn't change my water law instruction based on the 2012 case; read it to not apply to the original 13 colonies.
Nav in fact has been liberally construed in NY because it only applied to a right of passage, not State ownership.?ÿ Under NY rulings portages don't preclude nav., and modes of transportation for commerce include recreation whether those modes were used at statehood or not.
I predict we'll still have nav in fact for right of passage unchanged.?ÿ But nav in fact for title under the federal?ÿinterpretation since 2012?ÿwill mean more lake beds are (or were initially) State owned.
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The dissenting opinion is interesting.?ÿ I don't know enough to know which is correct but the dissent is fairly scathing and it disagrees that the Constitution conveyed the sovereign lands calling Waddell's Lessee (an 1842 case relied upon by the Majority) more or less an orphan case (my words).
from the dissent:
In Waddell??s Lessee, the Court did not rely on or even mention a federal navigability test. Furthermore, the Court did not apply any federal legal principles to its assessment of the issues. Even more notable is that Waddell??s Lessee has not been relied upon by any court ?? at least until today ?? to support the proposition that, when issues of land title are presented, the navigability of waters within the Original States must be solely assessed under a federal navigability test, creating federal jurisdiction. Nor has that decision been utilized by any tribunal to conclude that the Constitution gave unto the Thirteen Original States any land titles. That proposition is entirely contrary to those States having gained land titles as a matter of sovereignty upon cession from the Crown.
I like this, it is artful:
"Nevertheless, the Jurisdiction Order of the district court ploughed an entirely new furrow by concluding that the [Equal Footing Doctrine] applies to the waters and riverbeds of North Carolina."
Yes, I agree with dissent in that it's new law.?ÿ There are ways this could go that would lead NYS to try and bring it to the supreme court.
Wow!?ÿ
Things could get interesting in some of the original 13 colonies.?ÿ Like NC, NY highest court has interpreted the law differently, and I believe has considered their opinion the highest controlling authority on the matter.?ÿ I know I didn't change my water law instruction based on the 2012 case; read it to not apply to the original 13 colonies.
Nav in fact has been liberally construed in NY because it only applied to a right of passage, not State ownership.?ÿ Under NY rulings portages don't preclude nav., and modes of transportation for commerce include recreation whether those modes were used at statehood or not.
I predict we'll still have nav in fact for right of passage unchanged.?ÿ But nav in fact for title under the federal?ÿinterpretation since 2012?ÿwill mean more lake beds are (or were initially) State owned.
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I dont think it can work like that. Federal law can't override state law in a way that gives the state more land. The states are free to developed their own state laws defining navigability, but what this case illustrates is they can't use that state law to claim more than what passed to them at statehood. There is nothing stopping the state from adopting there own laws divesting some of their rights. There is nothing in this case that would allow them to suddenly claim reclaim rights that have been disposed of by state law.
The case changes the accepted definition of nav in law waters in NC, NY, and probably some other states.?ÿ How that may be used by the state or private parties remains to be seen.?ÿ More precisely, the case says the interpretation of the definition of nav in fact is per federal law, and that interpretation differs than NY interpretation in the past (the definition itself is no different).?ÿ And it says this is the test for Title, which it has not been in NY.?ÿ It will most definitely bring about litigation in the Adirondack park, just as soon as some folks decide how they might use it to their advantage.?ÿ There is a decades old battle between the state and private parties wherein the state has been trying to keep open, or open up again, the public right of passage over old water trade routes for recreational purposes. It's complicated, and just became more so.
The case changes the accepted definition of nav in law waters in NC, NY, and probably some other states.?ÿ How that may be used by the state or private parties remains to be seen.?ÿ More precisely, the case says the interpretation of the definition of nav in fact is per federal law, and that interpretation differs than NY interpretation in the past (the definition itself is no different).?ÿ And it says this is the test for Title, which it has not been in NY.?ÿ It will most definitely bring about litigation in the Adirondack park, just as soon as some folks decide how they might use it to their advantage.?ÿ There is a decades old battle between the state and private parties wherein the state has been trying to keep open, or open up again, the public right of passage over old water trade routes for recreational purposes. It's complicated, and just became more so.
This case only claims that federal law controls what the state gained title to at statehood. It does not affect what the state did with the land they gained title to. I think the state has to retain some responsibility for the public trust, but title to the bed can still pass to private owners by state law after statehood.
This case certainly lays the groundwork for future lawsuits, but it is premature to apply this decision in New York without further guidance from the courts. The 4th circuit can not "plow an entirely new furrow" outside of the 4th circuit on their own. To become nationally accepted law there needs to be either agreement between circuit courts or a Supreme Court ruling. A good example of this is the drastic differences in RS-2477 right of ways between the 9th and 10th circuit.?ÿ
I think you're missing the point, but as always I could be wrong. States can kinda do what they want with public trust lands, but not necessarily anything; the law is divided on that point.?ÿ And it's not premature, it is the catalyst for new litigation. Make no mistake, this is new law (which some will always claim is not; that's the point of litigation) that folks will want to test one way or another. Further guidance only comes from further litigation.
It sounds like you are saying the same thing I am. It is premature for surveyors to apply this outside of the 4th circuit though.?ÿThis "new" law is currently the law in the 4th circuit, but shouldn't be applied by surveyors outside of the 4th circuit until further litigation or legislation takes place.?ÿ
No, states cant't do whatever they want with navigable water trust lands, but they can divest the fee title (subject to restrictions). There was a case about this but I couldn't find in with a quick search. I think it was Oregon or Washington.?ÿ
It seems like a big question the SC should get involved in.
A) Did all of the States get their sovereign lands when they were admitted to the Union under the current Constitution in?ÿ 1789 or B) did the original 13 States get their sovereign lands when they separated from the Crown in 1776??ÿ If A) then what was the status of those lands between 1776 and 1789??ÿ If B) then does State law control over Federal (almost certainly yes)?
I guess they are too busy worrying about cake bakers baking cakes.