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The Disregarded Common Parentage of the Equal Footing and Public Trust Doctrines

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Brigham Young University Law School BYU Law Digital Commons Faculty Scholarship 1-1-1997 The Disregarded Common Parentage of the Equal Footing and Public Trust Doctrines James R. Rasband BYU Law Follow this and additional works at: https://digitalcommons.law.byu.edu/faculty_scholarship Part of the Admiralty Commons, and the Land Use Law Commons Recommended Citation James R. Rasband, The Disregarded Common Parentage of the Equal Footing and Public Trust Doctrines, 32 Lᴀɴᴅ & Wᴀᴛᴇʀ L. Rᴇᴠ., 1 (1997). This Article is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of BYU Law Digital Commons. For more information, please contact [email protected]. University of Wyoming College of Law LANDANDWATER LAW REVIEW VOLUME XXXII 1997 NUMBER 1 TIE DISREGARDED COMMON PARENTAGE OF THE EQUAL FOOTING AND PUBLIC TRUST DOCTRINES James R. Rasband' I. introduction ................................. 3 II. English Common Law on Sovereign Rights and Responsibilities with Respect to Land Under Navigable Water ............. 8 A. Early Understandings of Sovereign Power to Grant Land Under Navigable Water and Associated Resources .................................. 8 B. The Development of the Prima Facie Theory .......... 11 IlI. The Incorporation of the Prima Facie Theory into the Early Common Law of the United States .................... 14 A. Early Courts and Commentators' Adherence to the Prima Facie Theory ........................... 14 1. Copyright © 1996 by James R. Rasband. Associate Professor of Law, J. Reuben Clark Law School, Brigham Young University. B.A. 1986, Brigham Young University; J.D. 1989 Harvard Law School. I am grateful to Kif Augustine Adams, Harrison Dunning, Albert Gidari Jr., and Kevin Worthen for their comments on earlier drafts. I am also grateful to Nathan Benson, Emily Lauritzen, Michelle Olsen, and Kevin Wilkinson for their research assistance. LAND AND WATER LAW REVIEW Val. XXXII B. The Greater Validity of Applying the Prima Facie Theory in the American Situation ....................... 18 C. A Critical Departure from the Prima Facie Theory: Arnold v. Mundy .................................. 22 IV. Martin v. Waddell's Lessee: The Supreme Court's First Pronouncement on the Nature of Public Rights to Land Under Navigable Water ................................ 25 V. The United States' Power and Obligations with Respect to Land Under Navigable Water in the Territories Outside the Original 13 States ........................ 30 A. The Origin of the "Equal Footing" Terminology and Concept ................................. 30 B. Pollardv. Hagan and the Development of the Equal Footing Doctrine ............................ 34 C. The Development of the Equal Footing Doctrine from Pollardto Shively ............................ 38 VI. Unpacking the Rhetorical Confusion in Equal Footing Cases and Commentary ................................. 45 A. Application of the Equal Footing Doctrine after Shively. 45 B. Congress' Power under the Property Clause to Convey Land Under Navigable Water Prior to Statehood ........... 48 C. Application of the Presumption Against United States' Retention of Overflowed Lands ................... 57 VII. The Departure From the Prima Facie Theory in Public Trust Case Law .................................. 62 A. Illinois Central ............................. 63 B. Shively and Illinois Central Are Irreconcilable ......... 66 C. The Intent/Power Distinction in Illinois Central and Subsequent Public Trust Cases .................. 70 VIII. Implications of the Common Heritage of the Equal Footing and Public Trust Doctrines ......................... 74 A. Equal Footing in Winters v. United States Compared with Public Trust in Mono Lake ...................... 76 B. Equal Footing in Montana v. United States Compared with Public Trust in Illinois Central .................. 81 IX. A Unified Standard for Sovereign Conveyances of Land Under Navigable Water to Third Parties .................... 85 X. Conclusion .................................. 88 1997 EQUAL FOOTING AND PUBLIC TRUST DOCTRINES 1. INTRODUCTION Courts and commentators generally regard the issue of state owner- ship of and power over lands under navigable water and associated public resources as a function of two separate doctrines: the equal footing doc- trine and the public trust doctrine.' The equal footing doctrine defines the United States' power to convey or retain land under navigable water prior to statehood and therefore describes the lands under navigable waters which a state acquires at statehood.' The public trust doctrine defines a state's power over the land under navigable water that it acquired at statehood.' Despite the fact that both doctrines describe sovereign power 2. The equal footing doctrine has been the subject of relatively few articles and notes. See, e.g., John Hanna, Equal Footing in the Admission of States, 3 BAYLOR L. REV. 519 (1951); C. Perry Patterson, The Relation of the Federal Government to the Territories and the States in Landholding, 28 TEX. L. REv. 43 (1949). It has, however, received significant attention in several others. See, e.g., Louis Touton, Note, The Propery Power, Federalism, and the Equal Footing Doctrine, 80 COLUM. L. REV. 817 (1980); Peter N. Davis, State Ownership ofBeds ofInland Waters-A Summary and Reexamination, 57 NEB. L. REV. 665, 666-68 (1978). The number of analyses of the equal foot- ing doctrine pales in comparison to the vast literature on the public trust doctrine. Since Professor Sax's seminal article in 1970, see Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective JudicialIntervention, 68 MICH. L. REv. 471 (1970), very few interested in natural resource law have been able to resist the temptation of weighing in on the public trust doctrine. See, e.g., Richard J. Lazarus, Changing Conceptions of Property and Sovereignty in Natural Resources: Ques- tioning the Public Trust Doctrine, 71 IOWA L. REv. 631, 633-34 (1986); George A. Gould, The Pub- lic Trust Doctrine and Water Rights, 34 ROCKy MTN.MIN. L. INsT. 25-1 (1988); Harrison C. Dun- ning, The Public Trust Doctrine and Western Water Law: Discord or Harmony?, 30 ROCKY MTN. MIN. L. INsT. 17-1 (1985); James L. Huffman, Trusting the Public Interest to Judges: A Comment on the Public Trust Writing of Professors Sax, Wikinson, Dunning and Johnson, 63 DEN. U. L. REV. 565 (1986) [hereinafter Trusting the Public Interest to Judges]. For additional articles on the public trust doctrine, see Symposium: The Public Trust Doctrine in Natural Resources Law and Manage- ment, 14 U.C. DAvis L. REv. 181 (1980), and Symposium: The Public Trust and the Waters of the American West: Yesterday, Today and Tomorrow, 19 ENTVL. L. 425 (1989). While these articles on the public mist and equal footing doctrines often make passing reference to the other doctrine, they generally do not explore the common principles that animate both doctrines or try to explain why, and if, two disparate standards should exist. That is the task of this article. 3. The equal footing doctrine, of course, applies to more than the issue of pre-statehood United States' conveyances of land under navigable water. See infra Part VI.B. More generally, it is the doctrine that requires that new states be admitted to the Union on an equal sovereign footing with their sister states. Thus, aside from its application to land under navigable water, the equal footing doctrine is a mle that requires political equality for states entering the Union. See id. Absent specific references to this broader context, however, this article's use of the term "equal footing doctrine" re- fers to the doctrine in the context of its application to ownership of land under navigable water. 4. At common law in England, the term navigable waters had application almost exclusively to the waters that ebbed and flowed with the tide. Barney v. Keokuk, 94 U.S. 324, 338 (1877). In the United States, by contrast, navigable waters have been expanded to include all water bodies that are navigable in fact. Illinois Cent. R.R. v. Illinois, 146 U.S. 387, 435-36 (1892) [hereinafter Illinois Central]; Packer v. Bird, 137 U.S. 661, 667 (1891); Barney, 94 U.S. at 338; The Genesee Chief v. LAND AND WATER LAW REVIEW Vol. XXXII over submerged lands5 and spring from the same source, courts and com- mentators have analyzed equal footing and public trust questions under different standards. Under the equal footing doctrine, the United States is understood to have the power to convey land under navigable water prior to statehood but is presumed not to have made any pre-statehood convey- ance of such lands absent very plain and explicit language evidencing Congress' intent.6 Under the public trust doctrine, by contrast, the inquiry generally does not focus on state intent to convey land under navigable water. It is rather a question of state power to grant land beneath naviga- ble water, a question that turns on the size of the grant and the nature of the public's interest in the land granted.7 In further contrast, the equal Fitzhugh, 53 U.S. (12 How.) 443, 455 (1851) (holding that the admiralty and maritime jurisdiction of the United States extend to all public, navigable waters although above the flow of the tide). The equal footing doctrine applies to all land under water navigable in fact. In keeping with its English tidewater heritage, however, the doctrine has also been held to apply to land subject to the ebb and flow of the tide even if the tidewaters are not navigable in fact. Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988). The scope of the public trust doctrine was also initially limited to land under water navigable in fact but its reach has been expanded, particularly in recent years. See infra notes 9, 265-66. 5. The use of the term "submerged" lands here and elsewhere in the article is used to de- scribe lands under navigable water subject to the equal footing doctrine. This non-technical use of the word "submerged" accords with language in a variety of equal footing cases, although it is not strict- ly accurate.
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