Several people responded to the post about denial of Alcoa’s 401 Certification with questions or comments about public trust law and ownership of the bed of the Yadkin River. Based on the comments, some additional explanation of public trust law (and clarification of the earlier post) may be helpful. Note: I did not intend to address the merits of the State’s claim to the bed of the Yadkin River under the Alcoa dams in the earlier post and will not do that here — I don’t have all of the facts available to Alcoa and the state’s lawyers.
Both state and federal court decisions have recognized state ownership of lands under waters that are navigable for trade and commerce. The American colonies inherited English common law recognizing the King’s ownership of lands under waters subject to the ebb and flow of the tides. After independence, state courts quickly recognized that using the tides to identify navigable waters did not work well in American where large, navigable rivers extended far inland. In Wilson v. Forbes, 13 N.C. 30 (1828), North Carolina became one of the first states to recognize public trust ownership of lands under all commercially navigable rivers. The case marked the beginning of North Carolina’s use of the “sea vessel” test for state public trust ownership.
By the late 19th century, the U.S. Supreme Court joined state courts in recognizing public trust ownership of lands under rivers that were not tidal but were “navigable in fact”. The U.S. Supreme Court has said that waters are navigable in fact if they are “used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.” (From an 1871 U.S. Supreme Court decision in The Daniel Ball.) Under both state and federal court decisions, lands under other rivers and streams can be privately owned but there may be a public right of navigation.
A 2012 U.S. Supreme Court (PPL Montana, LLC v. Montana) highlighted two limitations on finding state ownership of a river bed under the “navigable in fact” test:
1. For the state to own the bed of a river, the river had to be navigable for commerce at the time of statehood. Later improvements that make a river segment navigable do not give the state title to the river bed. (So admiralty jurisdiction may be broader than state public trust ownership.)
2. The navigability test must be applied to each discrete segment of the river. The state does not have public trust ownership of the river bed in river segments that were not navigable for commerce at the time of statehood — even if most of the river would be considered “navigable in fact”. So the need to portage for a significant distance around a natural feature, such as a fall, may cause a segment of river to fail the test for state ownership of the river bed.
You can find the full U.S. Supreme Court decision in the Montana case here. The case resulted from the State of Montana’s claim of ownership to the bed of several rivers where a company, PPL Montana, had operated hydroelectric power generation facilities for decades. The Montana Supreme Court ruled in the state’s favor, but the U.S. Supreme Court reversed the state court decision. The U.S. Supreme Court directed the Montana court to reconsider the case based on the two limitations mentioned above – for purposes of state ownership, the river had to be navigable for commercial purposes when Montana became a state and navigability must be determined for each discrete stretch of river.
A few other points about public trust law:
For the most part, public trust law has been developed by the states. A number of the original 13 states extended public trust ownership to non-tidal commercially navigable rivers well before the U.S. Supreme Court addressed the issue. Since then, the role of the U.S. Supreme Court has largely been to define the property interest in navigable waters that states joining the Union after independence acquired at statehood. Once public trust ownership of a river bed has been established under the “navigable in fact” standard, state law takes over. The individual states identify the uses allowed and protected on public trust lands. State law also governs the sale of public trust lands.
Federal regulatory definitions of “navigable waters” do not determine state public trust ownership. The term “navigable waters” has also been used to describe federal regulatory jurisdiction under the Clean Water Act and the Rivers and Harbors Act of 1899, but the regulatory definition of “navigable waters” does not determine state ownership of the river bed. Many water bodies considered navigable waters under the Clean Water Act do not meet the “navigable in fact” test for public trust ownership. Public trust decisions recognize two categories of navigable waters — 1. those that were navigable for purposes of commerce at the time of independence (or statehood); and 2. those that were not. Waters that were not commercially navigable at statehood, may be commercially navigable now because of later improvements. Or those waters may be navigable for more limited purposes (i.e., floatable by a canoe, but not by larger vessels or navigable for only short distances because of obstructions).
The states own the beds of rivers that fall into the first category. The beds of rivers (or river segments) that fall into the second category can be privately owned. But Clean Water Act regulatory jurisdiction applies to navigable waters in both categories and there may be waters in both categories that also fall under admiralty jurisdiction. The simple rule to remember — public trust doctrine only gave the state ownership of lands under water bodies that were navigable for commerce in their natural condition at statehood. (Simple to state, but open to some interpretation — and then there is the problem of applying the simple rule to the specific history and condition of each river.)
Having a deed to land under coastal waters or under a river does not necessarily establish private ownership. If N.C. acquired public trust ownership at independence (and that will be a question to be decided based on the “navigable in fact” test), only a colonial grant or express authorization by the General Assembly could transfer title of those lands to a private property owner.
More than you ever wanted to know about the public trust doctrine…