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.
I don't know the answer, but I don't know if state law control necessarily follows from B. When each of 13 colonies joined the United States they ceeded some of their rights as sovereigns to the new federal government. If one of those rights they seeded was title rights to navigable waters those rights would have returned to the states equally under federal law.?ÿ
Well, many states even in the PLSS were including recreational use in commerce.?ÿ So I would look to see how they have adapted after the 2012 decision.?ÿ My theory is the commerce clause rescues public rights again, or over-reaches private rights depending on what bakes your cake:) So, if a stream was never in the public trust due to the narrow federal interpretation, then public rights never existed on that stream or section of stream, so nothing for the state to convey or retain under that doctrine.?ÿ Now we have to move to navigation law under the commerce clause for public rights of passage for recreation as a form of commerce.?ÿ Lot of legal scholars hate this law as well because it looks like taking rights without compensation.
As a surveyor I will continue to show small streams and label with "possible public easement" or something like that.
The land at issue in Martin v Lessee of Waddell (41 US 367, 16 Pet. 367, 1842) was tide and submerged lands at or near a coastal river mouth, all being subject to tides.?ÿ It stated that the beds of navigable waterways were sovereign lands but did not address any sort of test for navigability for title purposes for non-tidal waterways.?ÿ I haven't read NC v Alcoa to see how they relied on Waddell, but have downloaded it for weekend leisure reading.
The equal footing doctrine states that there is no seniority between the original 13 states as they became states at the same time (Lessee of Pollard v. Hagen, 44 US 212, 3 How. 212, 1845), and the court essentially created new common law by extrapolating that equal footing to all subsequently admitted states out of a sense of fairness, and perhaps with intelligent foresight of the legal mess that would ensue if states did have Sr./Jr. relationships between them.
Sovereignty passed from the British Crown to the original 13 at the time the colonies gained independence.?ÿ That occurred a decade before the Constitution was ratified.?ÿ Under British common law, navigability by which sovereign title was determined was limited to those waterways affected by the ebb & flow of the tides, with the limit of sovereign title being at the OHWM.?ÿ British common law didn't address non-tidal waterways, so sovereign title was not asserted over the beds of those waterways.
In the US, it wasn't until the mid-1800s when our courts realized that the size of many of the inland waterways being significantly greater than most non-tidal waterways in the British Isles made them equally as useful for commercial navigation as the tidally influenced rivers in England (The Propeller Genessee Chief, 53 US 443, 12 How 443, 1851), leading them to later rule that navigable in fact = navigable in law (The Daniel Ball, 77 US 557, 10 Wall 557, 1870).?ÿ However, they didn't discuss whether the original 13, having had their sovereignty pass from the Crown rather than from the US Federal government were exempt from the ruling.?ÿ They have some language in the Genessee ruling that lends itself to arguments either way, mentioning specifically the larger waterways of "the western states", but also discussing the retroactive nature of their finding that navigability for admiralty jurisdiction is not limited to tidal waterways.
Waddell is far from an orphan case.?ÿ It's foundational as to the principle of sovereign title of navigable waterways and has been cited by about 2000 subsequent cases.?ÿ It does not apply to a test of navigability, and if used in that context by the majority, would be a reasonable point of attack on the ruling.
SCOTUS has recognized the state's rights to assert their sovereign title to different points on the bank, or not at all (Barney v Keokuk, 94 US 324, 4 Otto 324, 1877), but has also stated that the states are not absolved of their responsibility to preserve the public's ability to use navigable waterways for all of the legitimate public uses of navigable waterways (a.k.a. the Public Trust Doctrine;?ÿ Illinois Central RR Co. v. Illinois, 146 US 387, 1892).
They also clarified that navigability for title purposes is subject to a Federal test, not to criteria promulgated or adopted by the individual states (US v. Oregon, 395 US 1, 1935).
Individual states can employ different criteria for waterways which are not navigable by federal criteria yet are navigable for lesser purposes.?ÿ On the waterways meeting those individual state criteria, such as the ability to float a certain size log downstream, or in CA's case "if navigable by small motor propelled craft or oar", then a more limited right of only navigation may exist for the public.
The elements of the Federal test for navigability for title purposes is that the waterway must have been:
- Susceptible to (commercial) navigation
- in its natural and ordinary condition
- at the time of statehood
- using the means of (commercial) waterborne travel for that time and place.
- The navigation did not need to have been without difficulty
- nor did it need to be continuous.
This criteria was first articulated in Howard v. Ingersoll (54 US 381, 13 How. 381, 1852).?ÿ It has been refined many times since but has not been substantially changed.?ÿ The last two elements, as applied generally, consider relatively short portages to avoid falls and rapids, and it would be a stretch to apply it to waterways having several miles of non-navigable stretches between navigable ones.
So all of this explains that, generally, the federal test applies to the test of navigability for determining title of the beds and whether the public has all the rights associated with the Public Trust Doctrine over the waterway, and explains, at least in part, the difference that Duane mentioned between tidal and non-tidal waterways in the NYS courts.?ÿ But as I read it, SCOTUS has not clearly stated whether the Federal test for title navigability described in cases where more western waterways were at issue also applies in the original 13 states for the purposes of determining the extent of sovereign ownership and/or extent of the public trust.
As I said, it seems that good arguments could be made either way.?ÿ I'd like to see this case or a similar one go to SCOTUS for a definitive answer.
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The commerce clause is not applicable to questions of sovereign ownership or rights of the public under the Public Trust Doctrine.?ÿ It's applicable to other regulatory jurisdictional questions and has prevailed solely for those purposes on some waterways which do not meet the criteria for title navigability.?ÿ The Federal Energy Regulatory Commission (FERC) is a common party to these types of cases where regulation of some power generation project affecting or proposing to affect waterways is at issue.
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The federal test for title navigability might be narrow or it may be quite broad.?ÿ The difference will typically hinge on what constituted common means of commercial waterborne travel at the time of statehood on the particular waterway, or at the particular location on the waterway.
For some waterways at the time some states came into being, that means of travel might be a 100' barge or paddlewheeler, or it may have been a 20' long by 3' wide canoe having only a few inches of draft.?ÿ If SCOTUS were to rule that the federal test applies to waterways in all states, I would imagine that in 1783, for many waterways, commercial travel might have been closer to the canoe than the big barge.
"Stare decisis aside in the long haul of history, the Law of Nature will ultimately determine whether the Moose River is navigable, no matter what litigants, lawyers, judges or juries may say on the subject."
The NY courts do not believe the Federal rule applies (as far as I can tell), but rather use common law, navigation law,?ÿand NY court decisions.?ÿ As I mentioned above, navigation law plays a part when discussing rights of passage or extent of those rights.
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"Stare decisis aside in the long haul of history, the Law of Nature will ultimately determine whether the Moose River is navigable, no matter what litigants, lawyers, judges or juries may say on the subject."
The NY courts do not believe the Federal rule applies (as far as I can tell), but rather use common law, navigation law,?ÿand NY court decisions.?ÿ As I mentioned above, navigation law plays a part when discussing rights of passage or extent of those rights.
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You are comparing apples and oranges here. The 2012 4th circuit was considering navigability for title purposes. Your NY case was considering navigability as a dertminate for the existence of a public easement. It is well established that state law is appropriate here (unless the title is held by the federal government).?ÿ
I think others in this thread are making that mistake too. Navigability for title is a different than navigability for commerce navigability for environmental?ÿ laws, and for state defined rights of passage.?ÿ
If the state of North Carolina has established law that provides the right of passage along rivers, the 2012 case would not change that. In order to determine what rights the public have the state law would have to be applied to this particular segment of river. The decision only means that North Carolina does not have title to the bed.?ÿ
"Stare decisis aside in the long haul of history, the Law of Nature will ultimately determine whether the Moose River is navigable, no matter what litigants, lawyers, judges or juries may say on the subject."
The NY courts do not believe the Federal rule applies (as far as I can tell), but rather use common law, navigation law,?ÿand NY court decisions.?ÿ As I mentioned above, navigation law plays a part when discussing rights of passage or extent of those rights.
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You are comparing apples and oranges here. The 2012 4th circuit was considering navigability for title purposes. Your NY case was considering navigability as a dertminate for the existence of a public easement. It is well established that state law is appropriate here (unless the title is held by the federal government).?ÿ
I think others in this thread are making that mistake too. Navigability for title is different law than navigability for commerce, navigability for environmental?ÿ laws, and for state defined rights of passage.?ÿ
If the state of North Carolina has established law that provides the right of passage along rivers, the 2012 case would not change that. In order to determine what rights the public have the state law would have to be applied to this particular segment of river. The decision only means that North Carolina does not have title to the bed.?ÿ
Not a mistake. That's the point of it, and why the Alcoa decision is troubling. Many states (plss & colonial alike) have interpreted nav in fact differently than that 2012 decision.?ÿ Apples and Oranges.?ÿ There are varying reasons for that.?ÿ Alcoa says states don't have the authority over their own waters to do that. And for the colonial states in particular it says that's the test for title, which is also apples & oranges to state precedent.?ÿ For federal regulatory purposes the test is completely different and a different subject still under scrutiny (nexus to federally nav waters, or not, depending on political outcome).
Adarondack Club V. Sierra Club does not consider the issue of title to the bed of the river:
"Defendants counter that because the South Branch is navigable-in-fact, they were entitled to use the easement reserved to the public in all such waterways. "
"If, however, a river is navigable-in-fact, it is considered a public highway, notwithstanding the fact that its banks and bed are in private hands"
It is confusing that application?ÿ of both the New York law governing public rights to waterways and federal law governing title to the beds use what is called "navigability".?ÿ But they are separate laws that are only related if state law ties their definition of navigability to the federal definition of navigability for title. Otherwise, one is to be defined by the federal courts (according to the 4th circuit) and the other by the state courts and statutes. Nothing in the 4th circuit opinion contradicts or or overrules state law, unless the state is claiming title to the bed from statehood.?ÿ
Even within federal law, the definition of navigability for title purposes is separate and independent from navigability for all other purposes. Again, its confusing because the same exact term is used to mean different things.?ÿ See?ÿKaiser Aetna et al. v. United States, 444 U.S. 164
(1979)
I want to be clear that I am not?ÿnecessarily arguing that this case was decided correctly. I am just pointing out that its ramifications are more limited than some seem to believe.?ÿ
I finally have had time to read the dissent. I won't venture an opinion on the application of the Equal Footing Doctrine, but I think this is a crucial point:?ÿ "The court failed to conduct a segment-by-segment analysis of the disputed segment, consistent with the Supreme Court's PPL Montana decision".
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Adarondack Club V. Sierra Club does not consider the issue of title to the bed of the river:
"Defendants counter that because the South Branch is navigable-in-fact, they were entitled to use the easement reserved to the public in all such waterways. "
"If, however, a river is navigable-in-fact, it is considered a public highway, notwithstanding the fact that its banks and bed are in private hands"
It is confusing that application?ÿ of both the New York law governing public rights to waterways and federal law governing title to the beds use what is called "navigability".?ÿ But they are separate laws that are only related if state law ties their definition of navigability to the federal definition of navigability for title. Otherwise, one is to be defined by the federal courts (according to the 4th circuit) and the other by the state courts and statutes. Nothing in the 4th circuit opinion contradicts or or overrules state law, unless the state is claiming title to the bed from statehood.?ÿ
Even within federal law, the definition of navigability for title purposes is separate and independent from navigability for all other purposes. Again, its confusing because the same exact term is used to mean different things.?ÿ See?ÿKaiser Aetna et al. v. United States, 444 U.S. 164
(1979)I want to be clear that I am not?ÿnecessarily arguing that this case was decided correctly. I am just pointing out that its ramifications are more limited than some seem to believe.?ÿ
Right, but still missing the point imho.?ÿ?ÿ Good discussion, but we disagree.?ÿ I look forward to reading cases that come out of this.?ÿ I think there will be some.?ÿ
I finally have had time to read the dissent. I won't venture an opinion on the application of the Equal Footing Doctrine, but I think this is a crucial point:?ÿ "The court failed to conduct a segment-by-segment analysis of the disputed segment, consistent with the Supreme Court's PPL Montana decision".
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Yes I saw that too, interesting and persuasive but not to the majority.
Probably not germane to the issue at hand, but of great interest to folks in Utah.
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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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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.
Federal law can't override state law in a way that gives the state more land.
Why is that?
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.
Federal law can't override state law in a way that gives the state more land.
Why is that?
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.
?ÿ
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.
Federal law can't override state law in a way that gives the state more land.
Why is that?