Phillips Petroleum Co. v. Mississippi: Is the Public Trust Becoming Synonymous with the Public Interest?

Laura H. Kosloff

Editors' Summary: The public trust doctrine is an amorphous legal concept that generally provides that states hold certain submerged land and tidelands in trust for their citizens. In Phillips Petroleum Co. v. Mississippi, the Supreme Court held that state ownership of lands subject to the public trust includes nonnavigable lands that are subject to the influence of the tide. This Comment analyzes the Court's decision, which could bring millions of acres of wetlands within the reach of the public trust. The author traces the development of the public trust doctrine and the impact of the Court's decision on the scope of the doctrine. The author observes that the Court, in adopting tidal influence as the test for application of the public trust doctrine, may have recognized the difficulties courts have had interpreting the traditional navigability test. The decision also provides an important policy statement in favor of the state's role in wetlands protection.

[18 ELR 10200]

In a 5 to 3 decision, the United States Supreme Court recently ruled in Phillips Petroleum Co. v. Mississippi that state ownership of lands subject to the public trust doctrine includes nonnavigable tidal lands.¹ The decision could allow states to regulate huge areas of coastal wetlands for a variety of public needs and impose on private landowners in many states a requirement of public access and use. Regardless of whether the decision only confirms and clarifies "long-standing precedents"² (in the words of the majority), or will cause a "grave injustice to be done to innocent property holders in coastal States"³ (in the view of the dissent), the impacts of the decision could be monumental, thrusting millions of acres of wetlands squarely into the reach of the public trust, a legal doctrine that is shrouded in the mists of history and uncertain in its ultimate scope.

In the opening paragraph of its decision in this case, the Mississippi Supreme Court stated:

Though great public interests and neither insignificant nor illegitimate private interests are present and in conflict, this in the end is a title suit.⁴

This statement has a deceptively simple and attractive clarity. It is true that in the end all the court had to determine was who owned 42 acres of disputed land — a simple, straightforward question of traditional property law. But when wetlands (or tidelands, or marshlands, or shore-zone) are at stake, the seemingly straightforward principles of property law become hazy. Tidelands, enveloped as they are on the one hand within ancient notions of public rights and sovereign prerogatives and intimately connected on the other with high property values and development potential, have been the cause of an untold number of "simple" title suits over the years. Even if one assumes that the state has title to all tidelands — a question that given the Court's split clearly was not obvious to all — one must define "tidelands,"⁵ as well as determine the point at which the tidelands end and truly dry land begins.⁶ As one commentator has noted, "[A]cademic questions become crucial when ownership and control of marshes becomes the issue."⁷

The source of this controversy is an arcane doctrine, usually ascribed to concepts derived from ancient Roman law, called the public trust doctrine. Since the doctrine, as it has developed, has more often than not involved [18 ELR 10201] tidelands, it is alternatively called the tidelands doctrine. Whatever its name, to call it a "doctrine" may be a misnomer, as there are as many variations on the concept as there are states in the Union. Moreover, the concept has undergone a radical metamorphosis in recent years. As a result, some authorities have asserted that there is a serious "title dilemma" in this country with respect to tidelands, casting a cloud on the title of numerous record landowners and thus potentially casting significant barriers to private development.⁸ The dissent in Phillips Petroleum would emphatically agree.

The public trust doctrine in its basic form stands for the proposition that the public has certain rights to the use of those submerged lands and tidelands that the individual states took title to upon their entrance into the United States. Until Phillips Petroleum, the navigability of the water overlying those lands was thought by many to be the test for determining the state's ownership. In its decision, the Court appears to be abandoning the traditional navigability test for purposes of determining state title of tidelands, if in fact it had ever really adopted it. Whether this move is simply an honest statement by the Court of a long line of precedent, a recognition of the difficulties courts have had in interpreting the traditional navigability test, or an illogical leap from previous case law is the subject of this Comment.

The Evolution of the Public Trust Doctrine

What It Was: The Origins of Public Use

The concept of common ownership of resources has its origins in Roman law, where "running waters, like the air and the sea, were res communes — things common to all and property of none."⁹ Ownership is perhaps the wrong word, since that concept arose much later, in England, where the "common law abhorred ownerless things."¹⁰ To reconcile the notion of the public's right to use the "running waters" in an era when private ownership reigned supreme, it was deemed that the king as sovereign owned the waterways. The courts began to speak in terms of sovereign ownership of the beds of navigable waters or of the lands between the high and low water marks.¹¹ The trust imposed responsibility on the sovereign to hold the lands for the use of the people. The people's rights extended to use of trust areas for navigation and fishing.

The 13 original states succeeded the English king as the sovereign owner of the navigable waters and tidelands when the United States was formed; under the equal footing doctrine,¹² states later formed out of the territories inherited all the rights and privileges of the original states. Evidence of judicial recognition of the public trust doctrine in this country dates back at least to a New Jersey case from the early 19th century.¹³ The United States Supreme Court recognized the concept of public use of certain waters shortly afterwards, when it stated:

The people of each State became themselves sovereign; and in that character held the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution to the general government.¹⁴

What It Is: The Doctrine's Metamorphosis into a Broad Environmental Tool

In its early form in this country, the public trust was applied to the same uses to which it had applied in England: commerce, navigation, and fishing. Over time, it has been expanded to include hunting,¹⁵ swimming, bathing,¹⁶ and mineral and energy development.¹⁷

In recent years, the public trust doctrine has been extended even farther. Although some older cases suggested that the trust could be applied to recreational purposes,¹⁸ in the 1970s the permission became explicit.¹⁹ Since 1973 the public trust doctrine has been held to apply to general recreational purposes,²⁰ the allocation of water rights under western appropriative water law principles,²¹ and the issuance of hazardous waste permits.²² The principle behind [18 ELR 10202] this expansion has perhaps best been explained by the California Supreme Court in Marks v. Whitney:

The public uses to which tidelands are subject are sufficiently flexible to encompass changing public needs. In administering the trust, the state is not burdened with an outmoded classification favoring one mode of utilization over another.²³

Wetlands protection has figured prominently in many of the recent cases involving the public trust. The courts' treatment of wetlands values has paralleled the growth of environmental concerns over the past two decades. Marks v. Whitney is perhaps the extreme example of a court interpreting the public trust doctrine to provide the broadest possible protection for wetlands areas, holding that preservation of such areas in their "natural state" is a use within the meaning of the doctrine.²⁴ And in State v. Superior Court of Placer County,²⁵ the California court found significant public policy reasons for protecting shorezone areas aside from the traditional public trust uses:

The shorezone is a fragile and complex resource. It provides the environment necessary for the survival of numerous types of fish …, birds …, and many other species of wildlife and plants. These areas are ideally suited for scientific study, since they provide a gene pool for the preservation of biological diversity. In addition, the shorezone in its natural condition is essential to the maintenance of good water quality, and the vegetation acts as a buffer against floods and erosion.²⁶

What It Does: Public Trust and Private Ownership

Although it has been said that the state, as the sovereign trustee, may not alienate lands subject to the trust,²⁷ this is something of an oversimplification. States have, quite often, conveyed tidelands to private parties. However, the pattern of the courts' — both state and federal — treatment of such grants indicates that they will be construed narrowly.²⁸ Moreover, even if the grant is upheld, the trust is usually not extinguished; the private party generally will receive ownership subject to trust limitations.²⁹ What the state cannot alienate is its "general control … over lands under the navigable waters of an entire harbor or bay, or of sea or lake."³⁰ The trust can be terminated for small parcels if the grant furthers trust purposes and does not "substantially impair the public interest in the lands and waters remaining."³¹

Thus, the dredging of a small section of tidelands for the purposes of improving navigation and commerce in the overall waterway would generally be upheld. But, as the Supreme Court held in the oft-cited case of Illinois Central Railroad Co. v. Illinois, the state cannot convey into private ownership the entire waterfront of Chicago along Lake Michigan.³² Nor can a state convey, free of the trust, 22,000 acres of bay area tidelands³³ or allow the draining of an entire navigable lake by private parties.³⁴

Many of the conflicts that have caused the greatest controversy regarding the public trust doctrine have involved early tidelands grants by the state to private individuals. Later — perhaps years later — the state decides to assert the public trust interest. Illinois Central is an extreme example; there, the state legislature changed its mind about its enormous conveyance a scant four years after having done so, and revoked the grant. The Supreme Court held that this was appropriate. But the situation that occurs more often is the one that occurred in Mississippi and resulted in Phillips Petroleum. There, 150 years after statehood, the state decided to issue oil and gas leases in the name of the public trust in coastal wetlands areas that had long been in private hands. The physical amount of acreage specifically in dispute in this case was quite small. Its claim to all coastal wetlands, however, could throw the titles of many landowners into disarray.

The Facts and the Decisions Below

In 1973, Mississippi enacted the Coastal Wetlands Protection Law.³⁵ The statute defined "coastal wetlands" to include "all publicly owned lands subject to the ebb and flow of the tide."³⁶ The law required a state agency, the Marine Resources Council, initially to identify state-owned wetlands. The Council took aerial photographs of the state's wetlands and made estimates of wetlands boundaries. Another state agency, the state Mineral Lease Commission, subsequently sold oil and gas leases on the lands depicted as wetlands in the maps, on the grounds that all [18 ELR 10203] lands in the state subject to tidal influence were subject to the public trust even if nominally in private ownership.³⁷

The petitioners in Phillips Petroleum were among those whose lands were affected, and included several oil and energy development companies and individuals. The landowners dated their title to prestatehood Spanish land grants dating from 1813,³⁸ and from various federal and state patents, and they or their predecessors in interest had paid taxes on the properties for over 150 years.³⁹ The bayous and unnamed drainage streams flowing over these lands are not navigable. Some of the land is completely submerged, and some are tidelands.⁴⁰ Certain areas "consist of little more than a film of moisture around the roots of trees and grasses."⁴¹ The lands and streams are, however, adjacent to a navigable river that flows into the Gulf of Mexico five or six miles downstream. Some of the acreage had been used for agricultural purposes, including crop growing and cattle grazing.⁴²

Petitioners brought a quiet title action to prevent Mississippi from issuing the gas leases. The trial court held that the state succeeded to ownership to all tidelands, regardless of navigability, when it became a state in 1817. It found just under 141 acres to fall within the ambit of the public trust doctrine.⁴³

The Mississippi Supreme Court affirmed the trial court's ruling regarding the scope of the public trust doctrine.⁴⁴ It reversed the trial court with respect to a portion of the 141 acres, holding that only 42 acres were within the reach of the public trust.⁴⁵ The court also held that petitioners' Spanish land grants were of no effect because there had been no treaty between Spain and the United States involving these particular lands; thus, the "grants" made to petitioners' predecessors in interest were actually only Spanish claims to the land.⁴⁶ Thus, whether petitioners held their property free of the public trust doctrine and whether the state had authority to proceed without effecting an unlawful taking depended on what the state took title to upon entering the United States in 1817.

The Supreme Court's Decision

The Majority

The Court affirmed the Mississippi Supreme Court, holding that title to "all lands beneath waters subject to the tide's influence" passed to the state upon its entrance into the Union.⁴⁷ The Court rejected the petitioners' interpretation of state cases on the public trust doctrine, their reliance on the public trust doctrine as it developed in England, and their characterization of the Court's own public trust precedent.

The Court found that its early public trust case law clearly indicated that the test for determining which land the states gained title to when entering the Union was tidal influence rather than navigability. In Shively v. Bowlby,⁴⁸ which petitioners characterized as the Court's "seminal case in American public trust jurisprudence,"⁴⁹ a phrase cited by the Court with apparent approval,⁵⁰ the Court had referred to "the title and dominion in lands flowed by the tide water … vest[ing] in the … States."⁵¹ The Court concluded that Shively was the product of earlier decisions that had made "similar, sweeping statements of States' dominion over lands beneath tidal waters,"⁵² and that subsequent decisions had only reaffirmed this holding.⁵³

Moreover, the Court emphasized, the public trust doctrine is essentially a creature of state law:

[I]t has been long-established that the individual States have the authority to define the limits of the lands held in public trust and to recognize private rights in such lands as they see fit. Some of the original States, for example, did recognize more private interest in tidelands than did others of the 13 — more private interests than were recognized at common law, or in the dictates of our public trusts cases.⁵⁴

In other words, although federal law established what the states took title to when they joined the Union, subsequent development of the public trust doctrine is completely within the realm of the sovereign states. And, the Court determined, the Mississippi courts had "consistently held" that the public trust — in Mississippi — includes all tidelands.⁵⁵ Thus, the Court concluded, its decision in this case will do no more "than confirm the prevailing understanding."⁵⁶ In some states, this "understanding" is that tidelands are in state ownership and subject to the trust. Others [18 ELR 10204] have conveyed portions of their tidelands to private owners, free of the trust; this decision, said the Court, makes no change in this situation.⁵⁷

Petitioners had not argued before the Court that "tidelands" was a completely irrelevant term. They recognized that the term had been used in the case law, both here and in England. What they argued was that "tidelands" or "tidewaters" were used as synonyms for navigability.⁵⁸ The Court concluded that the case law relied upon by petitioners for the proposition that the test in England was navigability is inapposite. The Court agreed with the petitioners that virtually all navigable rivers in England are tidally influenced; thus, application of the public trust doctrine in that country to tidelands meant, by definition, application of the doctrine to navigable waters.⁵⁹ The English courts did not have to face the issue of whether the trust applied to tidal, nonnavigable waters, however, and thus have no value beyond the situation in England.⁶⁰

The Court concluded that regardless of the English common law, the development of the doctrine in the United States established that tidal influence — the ebb and flow of the tide — was the test for state ownership of tidelands.⁶¹ The Court had rejected the ebb and flow test for admiralty jurisdiction in The Propeller Genesee Chief v. Fitzhugh⁶² because of the vast amount of inland navigable waters in this country that were not subject to the tides. It also specifically held, in a later case, that navigable freshwater rivers and lakes fell within the trust.⁶³ The Court noted that in a more recent case it had characterized these earlier decisions as an extension of the tidelands trust,⁶⁴ and refused to hold that its extension of the trust to navigable waters simultaneously withdrew tidal lands from public trust coverage.

Even under the navigability test put forth by petitioners, the fact that certain areas of a navigable waterway might not be navigable does not negate state ownership. The Court had some difficulty with the landowners' concession that the states thus own seashore tidelands, even if nonnavigable, finding that the difference between those tidelands and the tidelands at issue in this case is only a matter of degree.⁶⁵

Finally, the Court rejected the petitioners' equitable arguments, finding that petitioners had no reasonable expectations based upon their record title to the lands or their payment of taxes.⁶⁶ The fact that Mississippi law appears to have consistently held that the public trust extends to all tidal lands factored into the Court's decision. The Court did not find it important that the Mississippi Supreme Court believed that the issue of whether the trust applied to nonnavigable tidal lands was a question of first impression before it, finding that petitioners — or their predecessors — should have known of the state's claim to the tidelands based on "clear and unequivocal" language in earlier state court decisions.⁶⁷ The Court noted that the public trust in Mississippi had been extended to include lands used for bathing, swimming, recreation, fishing, and mineral development; this, too,should have put private landowners on notice.⁶⁸

The Dissent

The dissent would have held that the public trust extends only to land underlying navigable bodies of water, disagreeing with the majority's characterization of the Court's public trust precedent. Although recognizing that the trust has been characterized both in terms of tidelands and navigable waters, the dissent agreed with petitioners that the key term is navigability.⁶⁹ The dissent would also follow English common law more closely than did the majority.

In the dissent's view, the primary purpose of the public trust is to protect commerce; therefore, the scope of the trust should parallel the scope of federal admiralty jurisdiction, for which the Court adheres to the navigability test.⁷⁰ The dissent characterized the Court's decision in The Propeller Genesee Chief somewhat differently than the majority; rather than extending existing admiralty jurisdiction over tidewaters to include inland nontidal navigable waters, the dissent interpreted the decision to have "abandoned" the ebb and flow tidal test on the grounds that it was "purely artificial and arbitrary as well as unjust."⁷¹ Moreover, said the dissent, the Court has rejected the ebb and flow test in the public trust context as well.⁷²

The dissent noted that Mississippi showed no interest in the disputed land from the time it became a state in 1817 until the 1970s; its interest now is to lease the land for minerals, rather than to protect traditional trust uses. This, to the dissent, is critical: the state's "novel undertaking has caused it to press for a radical expansion of the historical limits of the public trust."⁷³

The dissent also strongly disagreed with the majority's viewpoint that the decision will not have inequitable results. As a result of the Court's holding, the dissent believes that title to the more than nine million acres of fresh or saline coastal wetlands in this country could be clouded.⁷⁴ The dissent found no comfort in the Court's suggestion that states could consider the equities when deciding individual claims to public trust lands, since the Mississippi court had held that estoppel did not apply even though the state had collected taxes from the landowners for some 150 years and yet previously had made no mention of its claim.⁷⁵

The Relevance of Navigability and Tidal Influence

The uses to which the trust applies have no relevance if [18 ELR 10205] one cannot determine the lands on which those uses are protected. Those lands have variously been described as "navigable waters" and lands underlying waters "subject to the ebb and flow of the tide."⁷⁶ Quite often, the terms have been used interchangeably in the same judicial decision. This is the source of the dispute that ended up in the Supreme Court in Phillips Petroleum.

Defining Navigability: Federal Jurisdiction

It was accepted by all the parties in Phillips Petroleum that the ebb and flow test was originally the test in England for determining the lands to which the trust applied, although the term "navigable waters" also appears in the English case law.⁷⁷ But this does not automatically answer the question in favor of the state, since virtually all streams in England were both navigable and subject to tidal influence. Navigability, however, was often defined in terms of ebb and flow.⁷⁸

In this country, at least three meanings of navigability have developed. These are navigability for purposes of federal regulatory jurisdiction under the Commerce Clause, navigability for purposes of determining state title to submerged lands, and public navigation rights under state law.⁷⁹

The ebb and flow test was initially imported by the American courts and was explicitly adopted for purposes of federal admiralty jurisdiction. However, it became clear that there were some significant differences between the two countries, the one relevant here being that the vast size of the United States meant that it had numerous inland rivers suitable for navigation and commerce — but which were not subject to the ebb and flow of the tide. If the ebb and flow test had once been a suitable determinant, it clearly was no longer so.

Thus, in The Propeller Genesee Chief v. Fitzhugh,⁸⁰ the United States Supreme Court abandoned the ebb and flow test, at least for purposes of admiralty jurisdiction. The Court adopted a seemingly simple test: navigability in fact. Rivers were deemed to fall within federal jurisdiction when they were "used, or susceptible of being used, in their ordinary condition as highways for commerce."⁸¹ The definition of "navigability in fact" was later extended, under a broad interpretation of the federal government's authority under the Commerce Clause to regulate navigation, to include waters that could be made navigable with reasonable improvements.⁸² Thus, a nonnavigable waterway may later become navigable for purposes of federal regulation; even, conceivably, many years later.⁸³

Defining Navigability: The Equal Footing Doctrine and States' Title

The second definition of navigability applies to lands that the states took title to upon entering the Union. Since the public trust involves those submerged lands and tidelands owned by the state, determined as of the date the state is formed, the second definition is crucial to developing an understanding of the Phillips Petroleum decision. The definition of navigability for state title is slightly different than for federal jurisdiction. Although the navigability in fact test is still used, it is the earlier, narrower test that applies; the river or stream must be navigable in fact in its "ordinary condition." Moreover, it is determined, once and for all, as of the date the state enters the Union. For the true submerged lands, the lands below the low water mark, this has not been much of an issue. The application of this test to tidelands, is, of course, the crux of the issue in Phillips Petroleum.

One of the arguments put forth by the petitioners in Phillips Petroleum was that in The Propeller Genesee Chief the Court had completely rejected the ebb and flow test, not only for determining the waters over which the federal government had regulatory jurisdiction, but also for determining the lands to which the states took ownership when they became states. The Court, as we have seen, rejected the basic premise of this argument, holding that tidal influence hadn't been rejected at all; the sources for federal jurisdiction had simply been expanded.⁸⁴

Intimately related to the navigability concept is the equal footing doctrine. The equal footing doctrine provides that all states entering the Union after the original 13 succeeded to all the rights and privileges of the original states.⁸⁵ Both [18 ELR 10206] the equal footing doctrine and the public trust doctrine arise from the same principle that the sovereign holds the submerged lands and tidelands in trust for the people.⁸⁶ As was discussed earlier,⁸⁷ the original states inherited the trust responsibility from the English king when the United States was formed. Fairly soon after its decision in The Propeller Genesee Chief, the Court relied on the equal footing doctrine and that decision to extend state ownership to lands underlying nontidal, but navigable, waters.⁸⁸ But the reverse situation — tidal, nonnavigable lands — does not appear to have been explicitly faced by a federal court previously.⁸⁹ The question in Phillips Petroleum was whether Mississippi had assumed title in 1817 only to all the lands underlying "navigable waters," according to petitioners, or to all those lands and all tidelands (i.e., lands underneath water subject to the "ebb and flow" of the tides regardless of their navigability in fact) according to the state. The Court's decision in Phillips Petroleum and its interpretation of its earlier cases indicates that Mississippi was correct.

Defining Navigability: The Public Use Doctrine

A third concept of navigability has been used in connection with its development under state law. Since the question in Phillips Petroleum dealt with navigability as of the date a state entered into the Union, a state's subsequent interpretation of navigability would not seem to be directly relevant. The states' interpretation of navigability, however, provides insights into the evolution of the public trust doctrine. The term "public use" has been used to describe cases where public navigation rights in waters that are not commercially navigable but have recreational value have been protected in one way or another regardless of ownership of the lands underlying the waters.⁹⁰

On one level this leads one to the conclusion that the petitioners in Phillips Petroleum might have a case; after all, at least some of these courts and commentators assume that these nonnavigable waters are owned by private parties rather than the state. But the references to a "public use" doctrine can also be used to demonstrate two other points. The first is a point emphasized by the Supreme Court in Phillips Petroleum, which is that the public trust doctrine is what the state makes it. Thus, on this level the public use cases can only demonstrate that in some states, perhaps nonnavigable waters are privately owned. Moreover, the public use concept does not appear to be dependent on tidal influence, either, so it does not necessarily apply only to tidelands. At least one commentator believes the concept of a public use doctrine to really be a "different form of expression" of the public trust doctrine.⁹¹

The truth is that the definition of navigability in fact has not proven satisfactory. American courts have been defining the term out of useful existence. They have been holding streams to be "navigable" that could hardly be called so, in an effort to protect public rights that have expanded over the years. The trend in the application of the public trust doctrine has been to include waters that do not meet the federal navigable-in-fact test but that do satisfy a more relaxed state standard. This has resulted in a "dramatic" movement in application of the public trust doctrine away from submerged lands to water resources generally.⁹² The distinct trend is towards a "standard requiring only that the water body be susceptible to recreational use."⁹³

Thus, we see a court holding navigable a river that varied seasonally from eight inches to two feet in depth, which sometimes had no water at all in it.⁹⁴ We see that court later ruling that a river is navigable in fact if it "is capable of floating any boat, skiff or canoe, of the shallowest draft used for recreational purposes,"⁹⁵ and another holding that all that is required is navigation by "oar or motor-propelled small craft."⁹⁶ We have seen that courts have applied the public trust doctrine to broad recreational purposes and to the study of tidelands in their natural state. Some courts have explicitly abandoned the traditional navigability title test when considering public use.⁹⁷ As a result, many states have had the authority to assert public trust interests over a much broader range of areas than they originally did, even if navigability rather than tidelands is the key factor.

The second point is that only one thing is crystal clear, and that is there is very little about the public trust doctrine that is clear at all. The existence of a subset of cases referring to a "public use" doctrine simply adds fuel to an already raging fire. "Navigability" and "tidelands" have been used, together and separately, for so long that the original truth as to which one determined title, if there [18 ELR 10207] was one, has long been totally obscured. Both the private parties and the state in Phillips Petroleum presented cogent arguments as to why either the former or the latter should be given credence. The Court could have gone either way, and indeed, only two justices made the difference.

The Demise of Navigability in Fact?

The Court's characterization in Phillips Petroleum of its earlier cases appears in some ways to be a little too convenient. But this may not be important. The Propeller Genesee Chief Court's intentions are, perhaps, irrelevant today. The Phillips Petroleum Court may have been attempting to recognize, in its own roundabout way, that the baggage carried by the navigability in fact definition simply has become too heavy to carry. A more likely and narrower conclusion is that the Court simply adopted Mississippi's view, which was that the navigability in fact test applies to state ownership of waters above the tide,⁹⁸ and navigability in fact still is determinative for waters below the tide.

Many court decisions and commentators⁹⁹ refer to "navigability" when discussing what it was that states took title to upon entering the Union. A recent statement of this can be found in Oregon ex rel. State Land Board v. Corvallis Sand and Gravel Co., in which the Oregon Supreme Court, on remand from the United States Supreme Court, observed that "[t]he waters to which these general rules apply are those which, at the time of admission to statehood, were navigable in fact according to the federal test of navigability."¹⁰⁰ The United States Supreme Court itself, in Illinois Central Railroad Co. v. Illinois, makes several references to navigability. The Court noted that the public trust can be improved by the construction of wharves and docks; the state may grant "lands under navigable waters" for such purposes.¹⁰¹ It also observed that such grants are very different from "the abdication of the general control of the State over lands under the navigable waters of an entire harbor or bay, or of sea or lake."¹⁰² State court decisions attempting to interpret Illinois Central have understood it to have relied on navigability:

[Illinois Central] held very clearly that the applicability of the public trust doctrine does not turn upon whether a body of water is subject to the ebb and flow of the tide, but upon whether it is navigable in fact … navigability is the touchstone in determining whether or not the public trust applies."¹⁰³

But the opposite statement also holds true; numerous court decisions, from a variety of states, suggest that tidal influence is the test for applicability of the doctrine. The California Supreme Court, for example, stated many years ago that the public trust applies to the "entire sea beach from the Oregon line to Mexico and the shores of every bay, inlet, estuary, and navigable stream as far up as tide water goes and until it meets the lands made swampy by the overflow and seepage of fresh water streams."¹⁰⁴ The Missouri Supreme Court declined to hold a private individual to be a trespasser even though he had climbed over a fence across a nonnavigable stream, floated in his canoe, and fished in a stream.¹⁰⁵ The Wisconsin Supreme Court noted in Just v. Marinette County that "[t]his is not a case of an isolated swamp unrelated to a navigable lake or stream, the change of which would cause no harm to public rights. Lands adjacent to or near navigable waters exist in a special relationship to the state … and are subject to the state public trust powers."¹⁰⁶

Even states that adhere to the navigability test have argued for its demolition. The State of Nevada recently argued before its supreme court that "[a]n extension of historic common law public trust principles associated with navigable waterways to non-navigable recreational waters, a step that nearly every other state has made, logically follows from this Court's prior precedents."¹⁰⁷

As with the argument that navigability is the crux of the matter, observers in the field have made statements suggesting that the ebb and flow of the tide is really the key factor. At least several states have asserted or are asserting sovereign interests in marshlands that are not necessarily navigable.¹⁰⁸ In a discussion of states' conveyances of "submerged lands" to private owners and "adjacent tidelands" to upland owners, Professor Joseph Sax speaks in a manner that seems to assume these are all trust lands.¹⁰⁹ Later he more explicitly states that "[s]ometimes the coverage of the trust depends on a judicial definition of navigability, but that is a rather vague concept which may be so broad as to include all waters which are suitable for public recreation."¹¹⁰

Even if navigability was the original "sine qua non" of the public trust doctrine,¹¹¹ one can reasonably ask if there [18 ELR 10208] is any meaning left to the term "navigability in fact" under these circumstances; what are the distinctions between a navigable tideland that is worthy of being preserved and one that is not? Are there truly valuable recreational uses in navigable areas that do not exist in tidal, nonnavigable waters? As one commentator has observed, "'Navigable' is a word of art, perhaps even of sorcery…. The concept is confusing, slippery, unpredictable, antique and irrelevant to today's problems."¹¹²

Thus, it is no wonder that the Mississippi Supreme Court wished to focus on the pure title aspects of the suit before it. But contrary to the Mississippi court's characterization of the issue, the emphasis should really be on the two competing interests that have historically been at opposite purposes to each other, rather than on a pure question of title. On the one hand, we have a long-established tradition in our common law, often codified in state constitutions or statutes, of a public interest in shore areas as well as the state's recognized authority as sovereign to regulate land use. On the other, our society has traditionally had considerable respect for private property rights, which are embodied in the Constitution in the form of rights to due process before a landowner's right to use property is removed and protection against the government's taking of private property without paying for its use.¹¹³

Navigability or tidal influence aside, the core of the public trust doctrine today — and it is only today's public trust doctrine, in the end, that is relevant — is its elevation of the public's use of land and water for purposes such as fishing and recreation to a status equivalent to the rights long enjoyed in this country by private landowners. Concentrating on archaic principles of property law only serve to further obfuscate issues that desperately need to be clarified. As one commentator has stated, "It is time to stop worrying about 'navigability' and 'title'; they do not contribute to a solution, and they distract and divert our attention from what is relevant to a solution."¹¹⁴

Reasonable Expectations of Record Landowners: Practical Impacts of Phillips Petroleum

One of the primary concerns of petitioners and the dissent in Phillips Petroleum was the disastrous unsettling impacts they believed the decision would have on private titles.¹¹⁵ The Court, according to them, was changing all the rules of the game that had existed for several hundred years with respect to ownership of the country's tidelands. Orderly development of property requires certainty; no one wishes to purchase any interest in property that has a lien on it or some other potential cloud on the title. And this holding, said the petitioners and the dissent, casts a raging thunderstorm upon the title of millions of acres.

Title, even when referring to the navigability test, has often been expressed in terms of the soil underlying the water up to the mean high water mark. But many tidal areas above the mean high water mark are subject to the "ebb and flow" of the tides. Even if private landowners should know that states have a claim to the land up to that mean high water mark, the Court's decision, according to the dissent, extends the potential state influence far beyond what the reasonable private landowner could ever expect. If the states have title to all these lands that until now no one knew they had title to, who knows what stringent protective regulations they will impose? The dissent believes the adverse effects on development could be tremendous, and cites evidence suggesting that this has been the case in at least one state, New Jersey, which has long claimed title to all tidelands in the state.¹¹⁶

This scenario is unlikely. "The essence of property law is respect for reasonable expectations," notes Professor Sax, a long-time observer on the public trust doctrine.¹¹⁷ The doctrine, he argues, is not a barrier to change, but an attempt by the courts to keep change reasonable, to avoid "the imposition of destabilizing forces that prevent effective adaptation."¹¹⁸ This viewpoint actually states the judicial trend fairly accurately. The courts have required the state, as the sovereign trustee for the public's rights, to take steps to protect those rights — but not at the complete expense of private expectations. Yes, the courts have held that lands long held by private parties are subject to a public trust easement, despite the private landowners' belief that the land was held free of the trust. Yes, the courts have actually completely invalidated conveyances after the fact. But they have also held that parcels of lands can be conveyed free of the trust, and the Court in Phillips Petroleum specifically noted that not all states assert the claim that Mississippi made.

It is more likely that should a specific fact situation come before the Court in which landowners alleged that they had engaged in development activity based on their reasonable expectations, the Court would take an equitable approach to the problem. If the tidelands had been dredged and filled, or the private landowners had made substantial investments related to development that were irrevocable, the Court would balance this against any public use that had historically occurred. In some circumstances, this could result in a grant being totally revoked; in others, the private interests would outweigh the public and the trust would be deemed to have been extinguished. In some situations, such as occurred in Phillips Petroleum, private landowners would still hold title, subject to certain trust limitations on development.¹¹⁹ This is consistent with Professor [18 ELR 10209] Sax's thesis that the roots of the public trust doctrine are really in the medieval tradition of the commons; the core of the doctrine is expectations rather than title.¹²⁰

Phillips Petroleum is not the easiest case, since the record did not indicate evidence of either private or public use. The extent of private activity on the tidelands had apparently been fairly small over the years.¹²¹ On the other hand, there doesn't seem to have been a significant history of public use, either.¹²² Arguably, the fact that petitioners and their predecessors in interest had paid taxes for some 150 years constituted a degree of detrimental reliance; yet the Court did not find this sufficient to negate the trust.¹²³ The public interest, whether it be the needs of energy development or the protection of fragile wetlands areas, is strong.¹²⁴

Conclusions

With its decision in Phillips Petroleum, the Court is perhaps arguably finally being honest about the problems surrounding application of the "navigability in fact" test that many courts have addressed in aroundabout fashion by simply defining navigability out of existence. It may also intend to send the public trust doctrine back to the essence of its historical roots — not a debate over ownership, but an equitable balancing act between private expectations and the public interest, taking into account modern concepts surrounding private ownership and sovereign responsibilities for natural resources.¹²⁵

In the end, the public trust doctrine is essentially an equitable doctrine fashioned by the courts to ensure that the state fulfills its responsibilities to its citizens: "The 'public trust' has no life of its own and no intrinsic content. It is no more — and no less — than a name courts give to their concerns about the insufficiencies of the democratic process."¹²⁶

The impact of Phillips Petroleum on wetlands regulation is not absolutely clear. It is perhaps more likely to have policy value than provide legally enforceable tools. The Court's decision only has the effect of telling us what the states took title to when they joined the Union; since that time, each state has been free to develop the public trust under its own law. But as a statement of policy, the Court may have made a stronger statement with respect to the balancing of private and public interests and the states' role in wetlands protection. Many of the state cases that have significantly expanded the scope of the public trust have focused on the importance of wetlands.¹²⁷ Phillips Petroleum can be interpreted as adding to the ammunition for wetlands protection the Supreme Court's seal of approval.

1. Phillips Petroleum Co. v. Mississippi, 108 S. Ct. 791, 18 ELR 20483 (Feb. 23, 1988).

2. Id., 18 ELR at 20484.

3. Id., 18 ELR at 20489.

4. Cinque Bambini Partnership v. State, 491 So. 2d 508, 510 (Miss. 1986).

5. The state in Phillips Petroleum, for example, considered only coastal wetlands to be tidelands, as distinguished from "marshy or swamp area[s] inland." Respondent's Brief at 9.

Black's Law Dictionary defines tidelands as "[l]and between the lines of the ordinary high and low tides, covered and uncovered successively by the ebb and flow thereof; land covered and uncovered by the ordinary tides; land over which the tide ebbs and flows." BLACK'S LAW DICTIONARY 1329 (5th ed. 1979).

6. Boundary determinations involve the application of complex technical and scientific models, a fact that one commentator has charged is often overlooked by lawyers and policymakers engrossed by modern application of ancient doctrines. Porro, Invisible Boundary: Private and Sovereign Marshland Interests, 3 NAT. RESOURCES LAW. 512, 519 (1970).

7. F. DAIBER, CONSERVATION OF TIDAL MARSHES 253 (1986). In Phillips Petroleum, the bottom line was who was going to reap the benefits from oil and gas exploration.

8. Porro, supra note 6, at 519. See also Porro and Teleky, Marshland Title Dilemma: A Tidal Phenomenon, 3 SETON HALL L. REV. 323 (1972) ("New Jersey has engaged in combat with thousands of recorded and previously recognized titles by the sweeping application" of the public trust doctrine to wetlands).

9. U.S. v. Gerlach Live Stock Co., 339 U.S. 724, 744 (1950). The Court's assessment of Roman law actually derives from the Institutes of Justinian, which stated that "[b]y the law of nature these things are common to mankind — the air, running water, the sea and consequently the shores of the sea." THE INSTITUTES OF JUSTINIAN 2.1.1 (T. Cooper trans. & ed. 1841), cited in Stevens, The Public Trust: A Sovereign's Ancient Prerogative Becomes the People's Environmental Right, 14 U.C. DAVIS L. REV. 195, 196-97 (1980).

10. Stevens, supra note 9, at 197-98.

11. [B]oth the title and the dominion of the sea, and the rivers and arms of the sea, where the tide ebbs and flows, and of all the lands below high watermark, within the jurisdiction of the Crown of England, are in the King. Such waters … are public in their nature, for highways of navigation and commerce, domestic and foreign, and for the purpose of fishing by all the King's subjects.

Shively v. Bowlby, 152 U.S. 1, 11 (1894).

12. See infra text accompanying notes 85-89.

13. See Arnold v. Mundy, 6 N.J.L. 1 (N.J. 1821). The fact that an American court did not address the issue until 1821, however, is not indicative of a rejection of the concept until that point. To the contrary, the concept of the people's interest in public waters existed in colonial times. See Stevens, supra note 9, at 199.

14. Martin v. Waddell's Lessee, 41 U.S. (16 Pet.) 367 (1842).

15. Diana Shooting Club v. Husting, 156 Wis. 261, 145 N.W. 816 (1911).

16. See, e.g., Lamprey v. State, 52 Minn. 181, 53 N.W. 1139 (1893).

17. Boone v. Kingsbury, 206 Cal. 148, 273 P. 797 (1928), appeal dismissed and cert. denied, 280 U.S. 517 (1929); Superior Public Rights, Inc. v. Department of Natural Resources, 6 ELR 20435 (Mich. Cir. Ct. Mar. 2, 1976), aff'd, 263 N.W.2d 290, 8 ELR 20382 (Mich. Ct. App. 1977). See also Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 471, 545 (1970).

18. Diana Shooting Club v. Husting, 156 Wis. 261, 145 N.W. 816 (1911); Lamprey v. State, 52 Minn. 181, 53 N.W. 1139 (1893).

19. See, e.g., People ex rel. Baker v. Mack, 19 Cal. App. 3d 1040, 1050 (1971).

20. See, e.g., Marks v. Whitney, 6 Cal. 3d 251, 491 P.2d 374, 2 ELR 20049 (1971); Morse v. Oregon Division of State Lands, 285 Or. 197, 590 P.2d 709, 9 ELR 20459 (1979).

21. National Audubon Society v. Superior Court of Alpine County, 33 Cal. 3d 419, 658 P.2d 709, 13 ELR 20272 (1983); United Plainsmen v. North Dakota State Water Conservation Commission, 247 N.W.2d 457, 7 ELR 20117 (N.D. 1976). For a discussion of the decision in National Audubon, see, e.g., Dunning, The Mono Lake Decision: Protecting a Common Heritage Resource from Death by Diversion, 13 ELR 10144 (May 1983); Rossman, Public Trust in Appropriated Waters: California Supreme Court Decides Mono Lake Case, 13 ELR 10109 (Apr. 1983).

22. Save Ourselves, Inc. v. Louisiana Environmental Control Commission, 452 So. 2d 1152, 14 ELR 20790 (La. 1984).

Although this expansion suggests that courts are willing to apply the public trust doctrine to any use of water, and indeed, to leave the boundaries of the waterways completely, courts do draw the line. See City of Eau Claire v. Department of Natural Resources, 2 ELR 20512, 20513 (Cir. Ct. Dane County, Wis. 1972) (refusing to extend public trust doctrine to groundwater).

23. 6 Cal. 3d at 259-60, 491 P.2d at 380, 2 ELR at 20050.

24. Id. For a discussion of the decision in Marks v. Whitney, see, e.g., Comment, Marks v. Whitney Expands the Scope of Protection for Lands in the Public Trust, 2 ELR 10007 (1971).

25. 29 Cal. 3d 240, 625 P.2d 256, 11 ELR 20483 (Cal. 1981).

26. Id., 11 ELR at 20484.

27. See, e.g., Priewe v. Wisconsin State Land and Improvement Co., 103 Wis. 537, 79 N.W. 780 (1899) (the "legislature has no more authority to emancipate itself from the obligation resting upon it … than it has to donate the school fund or the state capitol to a private purpose"). See also Wilson, Private Property and the Public Trust: A Theory for Preserving the Coastal Zone, 4 UCLA J. ENVTL. L. & POL'Y 57, 82 (1984) ("the state may not delegate its authority over public trust land to private parties").

28. See Sax, supra note 17, at 488-89.

29. See, e.g., Orion Corp. v. State, 109 P.2d 621, 747 P.2d 1062, 18 ELR 20697 (Wash. 1987) (privately owned tidelands in Padilla Bay subject to public trust); City of Berkeley v. Superior Court of Alameda County, 26 Cal. 3d 515, 606 P.2d 362, 10 ELR 20394, cert. denied 449 U.S. 840 (1980) (22,000 acres by privately owned tidelands and submerged lands in San Francisco Bay, including entire Berkeley waterfront, remain subject to public trust); People v. California Fish Co., 166 Cal. 576, 588, 138 P. 79, 84 (1913) (patent issued in 1887 passed "at most, only the title to the soil subject to the public right of navigation").

Several commentators have described the private party's ownership as a "naked fee." See Stevens, supra note 9, at 215 (private party receives a "naked fee", with the public trust lingering over the land like the smile of a juridical Cheshire cat"); Taylor, Patented Tidelands: A Naked Fee?, 47 CAL. ST. B.J. 420 (1972).

30. Illinois Central Railroad Co. v. Illinois, 146 U.S. 387, 452-53 (1892).

31. Id. at 453. See also City of Berkeley, 26 Cal. 3d at 528-29, 606 P.2d at 369-70, 10 ELR at 20396 ("the intent to abandon must be clearly expressed or necessarily implied").

32. 146 U.S. 387.

33. City of Berkeley, 26 Cal. 3d 515, 606 P.2d 362, 10 ELR 20394.

34. Priewe v. Wisconsin State Land and Improvement Co., 103 Wis. 537, 79 N.W. 780 (1899).

35. MISS. CODE ANN. §§ 49-27-1 through 49-27-69 (Supp. 1986).

36. Id. at § 49-27-5.

37. Cinque Bambini Partnership, 491 So. 2d at 511.

38. These grants would, if valid, result in the lands being free of any public trust easement, regardless of how one defined the scope of the trust, since Mississippi did not become a state until 1817.

39. Petitioners' Opening Brief at 8.

40. Respondent's Brief at 7.

41. Petitioner's Opening Brief at 6.

42. Petitioners' Opening Brief at 7.

43. Cinque Bambini Partnership, 491 So. 2d at 510. The original action was to quiet title on 2,400 acres. The state had issued leases on 600 acres, but title to all of that 600 acres was not in dispute. Respondent's Brief at 6.

44. Cinque Bambini Partnership, 491 So. 2d at 516.

45. Id. at 520. The remainder of the acreage consisted of two artificial lakes, created by dredging for fill material during the construction of an interstate highway. The court held that these two lakes do not belong to the state, to the extent that they were not subject to the ebb and flow of the tide as of the date dredging began. Id.

46. Id. at 518; Respondent's Brief at 7.

47. Phillips Petroleum, 108 S. Ct. 791, 18 ELR at 20486.

It is interesting to note the difference in how the opposing parties framed the issue. The landowners emphasized the concept of navigability. They characterized the issue as being "[w]hether, at the time of Mississippi's statehood in 1817, the lands under the non-navigable but tidally influenced inland waters were conveyed by the United States to Mississippi as part of the state-owned public trust." Petitioners' Opening Brief at (i). The state, however, made no mention of navigability and emphasized the equal footing doctrine in its statement that the issue before the Court was whether "[a]t the time Mississippi entered the Union in 1817, under the common law and on an equal footing with the original states, did the public trust lands conveyed by the United States to Mississippi include all tidelands within its boundaries." Respondent's Brief at (i). See infra discussions of navigability and the equal footing doctrine at text accompanying notes 76-89.

48. 152 U.S. 1 (1894).

49. Petitioners' Reply Brief at 11.

50. 108 S. Ct. 791, 18 ELR at 20483.

51. Id., citing Shively v. Bowlby, 152 U.S. at 57. Petitioners had recognized this language. They had argued, however, that Shively was referring to tide waters that were valuable for commerce, navigation, and fishing. Petitioners' Reply Brief at 11. Thus, according to petitioners, the test was really one of navigability regardless of the term used.

52. 108 S. Ct. 791, 18 ELR at 20484.

53. Id. & n.2.

54. Id., 18 ELR at 20484 (citations omitted).

55. Id., 18 ELR at 20486.

56. Id.

57. Id.

58. Petitioners' Brief at 17-18.

59. 108 S. Ct. 791, 18 ELR at 20485.

60. Id.

61. Id.

62. 53 U.S. (12 How.) 443 (1852).

63. Barney v. Keokuk, 94 U.S. (4 Otto) 324 (1877).

64. 108 S. Ct. 791, 18 ELR at 20485, citing Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 374, 7 ELR 20137, 20140 (1977).

65. 108 S. Ct. 791, 18 ELR at 20485.

66. Id., 18 ELR at 20486.

67. Id.

68. Id.

69. Id., 18 ELR at 20487.

70. Id.

71. Id., citing The Propeller Genesee Chief, 53 U.S. (12 How.) at 457.

72. Id., 18 ELR at 20487.

73. Id., 18 ELR at 20488.

74. Id., 18 ELR at 20489.

75. Id.

76. Submerged lands are universally considered the lands below the low water mark, which does not raise an ownership dispute. At least one court has made a specific distinction between the limitations the public trust imposes on submerged lands and those on tidelands, holding that the state can never alienate the former although it may alienate tidelands. See cases cited in Comment, Regulating Fills in Estuarts. The Public Trust in Oregon, 61 OR. L. REV. 523, 528 n. 20 (1982) [hereinafter Regulating Fills].

77. Petitioners' Brief at 17; Respondent's Brief at 12. See also Stevens, supra note 9, at 201. With respect to Roman law, one commentator has noted that the tidal nature of water was irrelevant to the development of the concept of common ownership of resources, since the Mediterranean is tideless. Comment, The Public Trust Doctrine in Maine's Submerged Lands: Public Rights, State Obligations and the Role of the Courts, 37 ME. L. REV. 105, 108 n.22 (1985).

78. Respondent's Brief at 12, citing the definition of "navigable" from several sources. But see Petitioners' Brief at 19-20, citing several English cases that suggest that tidal influence alone is insufficient to demonstrate navigability.

79. Stevens, supra note 9, at 203. Federal admiralty jurisdiction, discussed below at text accompanying note 81, can be considered a subset of the broad federal regulatory power under the Commerce Clause.

80. 53 U.S. (12 How.) 443 (1851).

81. The Daniel Ball, 77 U.S. (10 Wall) 557, 563 (1870).

82. U.S. v. Appalachian Power Co., 311 U.S. 377 (1940).

83. The Supreme Court has suggested that despite the federal government's broad authority to regulate commerce, its authority to regulate waterways for other purposes may be more circumscribed than the state-developed public trust doctrine. Kaiser Aetna v. United States, 444 U.S. 164, 10 ELR 20042 (1979). See Lazarus, Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine, 71 IOWA L. REV. 631, 647 (1986); Wilson, supra note 27, at 89 ("If Kaiser Aetna was analyzed with the public trust doctrine in mind, the result likely would be different."). See also Johnson, Public Trust Protection for Stream Flows and Lake Levels, 14 U.C. DAVIS L. REV. 233, 246-47 (1980) (suggesting that at least some of the navigational servitude case law is properly part of the public trust doctrine).

In Kaiser Aetna, the Court held that a privately owned, non-navigable tidally influenced fishpond, which was dredged and transformed into a navigable marina, was not subject to public access under the federal navigational servitude. If the federal government insisted on free public access, the Court held, it would have to pay the private owner just compensation. The pond was considered private under Hawaiian law. Interestingly, the three dissenting justices in Kaiser Aetna, who would have held the pond navigable under the traditional ebb and flow test, constitute three of the five justices in the majority in Phillips Petroleum.

84. 108 S. Ct. 791, 18 ELR at 20485. See also supra text accompanying notes 62-64.

85. The most recent Supreme Court decision on the equal footing doctrine is Utah Division of State Lands v. United States, 107 S. Ct. 2318 (1987). The case that stands for extension of public trust principles to all subsequently admitted states is Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212 (1845).

The language "equal footing" derives from the Northwest Ordinance, which was enacted by the Continental Congress and set out guidelines for settlement and governance of the Northwest Territory and provided for establishment of new states out of the territory. The ordinance stated that new states "shall be admitted … on an equal footing with the original States, in all respects whatever." ORDINANCE OF 1787: THE NORTHWEST TERRITORIAL GOVERNMENT, Art. V. Ch. 8, 1 Stat. 50 (1789), cited in Respondent's Brief at 21-22.

86. Petitioners' Brief at 35.

87. See supra text accompanying notes 12-14.

88. Barney v. Keokuk, 94 U.S. (4 Otto) 324 (1877).

89. One case apparently involved nonnavigable tidal waters, but the Court did not expressly deal with the issue when holding the lands in dispute to fall with the public trust. Mann v. Tacoma Land Co., 153 U.S. 273 (1894). See Phillips Petroleum, 108 S. Ct. 791, 18 ELR at 20485 n.8; Cinque Bambini Partnership, 491 So. 2d at 514. The precise situation had not been faced by the Mississippi court, either. Id. at 516.

90. See Johnson, supra note 83, at 248; Stevens, supra note 9, at 203.

91. Johnson, supra note 83, at 249. See also Stone, Legal Background on Recreational Use of Montana Waters, 32 MONT. L. REV. 1, 6-7 971).

92. Lazarus, supra note 83, at 647-48.

93. Id. at 648 n.90.

94. Diana Shooting Club v. Husting, 156 Wis. 261, 145 N.W. 816 (1914).

95. Muench v. Public Service Commission, 261 Wis. 492, 53 N.W.2d 514, 519 (1952).

96. People ex rel. Baker v. Mack, 19 Cal. App. 3d 1040, 1050 (1971).

97. See, e.g., Montana Coalition for Stream Access v. Curran, 682 P.2d 163, 169-70 (Mont. 1984). The rejection of the navigability test is not limited to recent decisions. see, e.g., Lamprey v. State, 52 Minn. 181, 199-200, 53 N.W. 1139, 1143 (1893), in which the court noted that

[m]any, if not the most, of the meandered lakes of this state, are not adapted to … commercial navigation; but they are used … by the people for sailing, rowing, fishing, bathing, skating … and other public purposes…. To hand over all these lakes to private ownership, under any old or narrow test of navigability, would be a great wrong upon the public for all time, the extent of which cannot, perhaps, be now even anticipated.

98. Respondent's Brief at 19. See also City of Berkeley, 26 Cal. 3d 515, 606 P.2d 362, 10 ELR at 20400 ("submerged lands as well as lands subject to tidal action" within scope of trust).

99. See, e.g., Stevens, supra note 9, at 196 (public trust doctrine applies to "sovereign's ownership of the beds of navigable waters"); Huffman, Avoiding the Takings Clause Through the Myth of Public Rights: The Public Trust and the Reserved Rights Doctrines at Work, 3 J. LAND USE & ENVTL. L. 171, 184 (1987) ("[l]ands under nonnavigable waters generally were owned by the riparian landowner").

100. 283 Or. 147, 582 P.2d 1352, 8 ELR 20841, 20843 (Or. 1978).

101. 146 U.S. 387, 452-53 (1892).

102. Id. Interestingly enough, Illinois Central apparently dealt with land below the low water mark, which are the true submerged lands. Comment, The Public Trust Doctrine Expansion and Integration: A Proposed Balancing Test, 23 SANTA CLARA L. REV. 211, 223 (1983) [hereinafter Expansion and Integration].

103. State v. Superior Court of Lake County, 29 Cal. 3d 210, 625 P.2d 239, 11 ELR at 20480.

104. People v. California Fish Co., 166 Cal. 576, 591, 189 P. 79, 85 (1913).

105. Elder v. Delcour, 364 Mo. 835, 269 S.W.2d 17 (1954), discussed in Stevens, supra note 9, at 227.

106. 56 Wis. 2d 7, 18, 201 N.W.2d 761, 769, 3 ELR 20167, 20169 (Wis. 1972) (citations omitted). See generally Comment, The Takings Doctrine in the Wisconsin Supreme Court: Just v. Marinette County, 3 ELR 10080 (1972).

107. Appellants' Opening Brief at 7, State v. Morros, ELR PEND. LIT. 65993, No. 18105 (Nev. opening brief filed Aug. 20, 1987).

108. Porro, supra note 6, at 519 (discussing Georgia, South Carolina, North Carolina, and New Jersey); Porro and Teleky, supra note 8, at 323 (New Jersey "has engaged in combat" with private landowners by its "sweeping application" of the public trust doctrine, which gave the king rights with respect to "all navigable streams and waterways and the adjacent land flowed by their tides").

109. Sax, supra note 17, at 503.

110. Id. at 556. Sax has also argued that the proper source of today's public trust doctrine is really the tradition of the commons in medieval Europe. Sax, Liberating the Public Trust Doctrine From Its Historical Shackles, 14 U.C. DAVIS L. REV. 185, 189 (1980). If this is the case, of course, navigability and tidal influence are purely irrelevant academic issues.

111. Petitioners' Brief at 31.

112. Johnson, supra note 83, at 250 n.66; see also Regulating Fills, supra note 76, at 527 n.19. Other writers have been more cynical, stating that "a navigable river is any river with enough water in it to float a Supreme Court opinion." C. MEYERS AND A. TARLOCK, WATER RESOURCES MANAGEMENT 240 (1971), quoted in United States v. Kaiser Aetna, 408 F. Supp. 42, 49, 6 ELR 20526 (digest) (D. Haw. 1976).

113. DAIBER, supra note 7, at 253.

114. Stone, supra note 91, at 10.

115. The dissent believes the result will "disrupt the settled expectations of landowners not only in Mississippi but in every coastal state." 108 S. Ct. 791, 18 ELR at 20486. The petitioners believe that the Court's decision will cause an "avalanche of ensuing litigation [that] will involve not only conflicting title claims but serious dislocations of the financial, inheritance and tax arrangements emanating from the long-held private dominion over these lands." Petitioners' Petition for Rehearing at 2.

116. 108 S. Ct. 791, 18 ELR at 20489, citing Porro and Teleky, supra note 8, at 325-26.

117. Sax, supra note 110, at 186-87.

118. Id. at 188. Another observer, however, characterizes the public trust doctrine as a "legal fiction" that "offers too tenuous a basis" for conservation objectives. Lazarus, supra note 83, at 710.

119. Thus, for example, the California Supreme Court held in City of Berkeley that those tidelands that had been filled in reliance upon grants were freed from trust obligations, but tidelands that had not yet been filled or improved remained subject to the trust. 26 Cal. 2d 515, 606 P.2d 262, 10 ELR at 20400. And in State v. Superior Court of Lake County, the California court held that the state succeeded to ownership of beds of nontidal navigable waters upon its admission to the Union up to the high water mark, but the private landowner had title, albeit subject to trust limitations, because of statutory language suggesting that the legislature had granted the lands between the high and low water marks to private persons, historical state interpretation, and the language of the grant from the state to the county. 29 Cal. 3d 210, 625 P.2d 239, 11 ELR 20476, 20479-80 (Cal. 1981).

120. Sax, supra note 110, at 192.

121. There had been some agricultural and grazing use over the years. Petitioners' Brief at 7.

122. Id. at 6 (referring to occasional use by fishermen).

123. 108 S. Ct. 791, 18 ELR at 20486. Cf. Kaiser Aetna v. United States, 444 U.S. 164, 10 ELR 10042 (1979) (Corps' approval of dredging permit for nonnavigable tidal fishpond contributed to landowner's "reasonable investment-backed expectations" that pond would remain private).

124. Despite the strength of the public interest, landowners are not left without strong remedies themselves. The existence of a public trust burden on private property does not necessarily negate the possibility of an unconstitutional taking of private property, depending on what uses the state allows. See Orion Corp. v. State, 109 Wash. 2d 621, 747 P.2d 1062, 18 ELR 20697 (Wash. 1987); Graham v. Estuary Properties, Inc., 399 So. 2d 1374 (Fla. 1981); but see Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761, 3 ELR 20167 (1972). See also Wilson, supra note 27, at 88.

125. For a proposed five-step balancing test to be considered in weighing the impact of the public trust on privately owned tidelands, see Expansion and Integration, supra note 102, at 233-34. The proposal was made in light of two California decisions expanding the public trust doctrine in that state to include inland, nontidal lakes. See State v. Superior Court of Lake County, 29 Cal. 3d 210, 625 P.2d 239, 11 ELR 20476 (1981); State v. Superior Court of Placer County, 29 Cal. 3d 240, 625 P.2d 256, 11 ELR 20483 (1981). The dissent in both cases had similar concerns to those of the petitioners and dissent in Phillips Petroleum.

126. Sax, supra note 17, at 521.

127. See, e.g., Just v. Marinette County, 56 Wis. 2d at 16-17, 201 N.W.2d at 768, 3 ELR at 20168 ("[w]hat makes this case different … is the interrelationship of the wetlands, the swamps and the natural environmental of shorelands to the purity of the water and to such natural resources as navigation, fishing, and scenic beauty"); Marks v. Whitney, 6 Cal. 3d 251, 491 P.2d 374, 2 ELR at 20050 (tidelands "serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life").