Phillips Petroleum Co. v. Mississippi: A Hidden Victory for Private Property?

James L. Huffman

James L. Huffman is Professor of Law and Director of the Natural Resources Law Institute, Lewis and Clark Law School; Associate, Political Economy Research Center. B.S. 1967, Montana State University; M. A. 1969, Fletcher School of Law and Diplomacy; J.D. 1972, University of Chicago.

[19 ELR 10051]

In the June 1988 issue of the Environmental Law Reporter,¹ Laura Kosloff concludes that the Supreme Court decision in Phillips Petroleum Co. v. Mississippi² "can be interpreted as adding to the ammunition for wetlands protection the Supreme Court's seal of approval."³ No doubt an effect of the decision will be to strengthen the states' position in coastal wetlands regulation,⁴ but it is not clear that the Supreme Court has endorsed the notion that states can regulate all of the nation's wetlands without having regard for rights of private landowners. Indeed, the Court's opinion in Phillips Petroleum offers considerable promise to riparian landowners of nontidal waters, many of whom have felt besieged by state courts intent on finding all manner of public rights under the increasingly enigmatic public trust doctrine.

Because the trend in state court public trust decisions has been expansive,⁵ as the title of Kosloff's piece suggests,⁶ it is not surprising that the Phillips Petroleum decision would be viewed as part of that trend, particularly in light of dissenting votes by conservatives O'Connor and Scalia. But there are sound reasons to view the decision as a victory for some private property owners and a caution to state courts who would merge the public trust doctrine with the police power.⁷

The interpretation of the Phillips Petroleum decision proposed in this brief Article is rooted in three assertions that are explicitly or implicitly rejected in much public trust case law and commentary: (1) that reasonably clearly defined private rights in water and submerged lands exist; (2) that the United States Constitution (and most state constitutions) guarantees these property rights against expropriation and unreasonable regulation; and (3) that it is in the public interest to take these constitutional protections seriously. The reader who rejects these assertions will, of course, find the argument presented here less persuasive. The argument will proceed with a summary explanation of the public trust doctrine, a discussion of the Phillips Petroleum case, and a conclusion about the prospective implications of the decision.

The Public Trust Doctrine

The public trust doctrine has deep roots in Anglo-American common law. Although the doctrine's English origins have never been adequately traced,⁸ its American career is well known, if a bit checkered.⁹ The earliest American case was apparently Arnold v. Mundy,¹⁰ in which the New Jersey Supreme Court rejected the claim of a riparian landowner to exclusive rights in oyster beds in the tidal waters of the Raritan River. Chief Justice Kirkpatrick discussed at length the distinctions among private property, public property, and common property. The latter, said Kirkpatrick, includes "the air, the running water, the sea, the fish, and the wild beasts … things in which a sort of transient usufructuary possession only, can be had …."¹¹ The case is often cited for the proposition that "[t]he sovereign [19 ELR 10052] power … cannot … make a direct and absolute grant of the waters of the state, divesting all the citizens of their common right,"¹² although the opinion prefaced this statement with a generous list of developmental objectives that could be pursued through either public or private action.¹³

The United States Supreme Court first addressed the doctrine in Martin v. Waddell's Lessee,¹⁴ another case involving the tidal waters of New Jersey's Raritan Bay. Martin claimed exclusive rights in oyster beds adjacent to his riparian land pursuant to an enactment of the New Jersey legislature. Lessees of Waddell claimed exclusive rights in the same oyster beds pursuant to pre-statehood grants from the English Crown. The Supreme Court, relying entirely on English law,¹⁵ found for Martin on the theory that the public trust doctrine prevented the English Crown from granting the rights claimed by Waddell. Of course it is not unimportant that while rejecting the grant by the Crown, the Court upheld the grant by the New Jersey legislature, a fact often overlooked in modern references to the case.

The landmark public trust decision in American law is Illinois Central Railroad v. Illinois.¹⁶ In 1869 the Illinois legislature granted lands along Chicago's lakeshore to the Illinois Central Railroad. In 1873 the legislature had a change of heart and repealed the 1869 Act. The Railroad, of course, was not pleased with this turn of events. The Railroad claimed, quite correctly, that the legislature had granted a fee simple interest in the lands, subject to a prohibition on subsequent conveyance and a proviso that the public right of navigation was not to be impaired. The repeal of the grant was alleged to be an unconstitutional impairment of the obligation of contract and a taking of private property without due process of law. The Supreme Court ruled, however, that the 1869 grant violated "a trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties."¹⁷

Although the Illinois Central case is clear in its outcome, it is much less clear in terms of its reasons for invalidating the 1869 grant. Indeed, the Court was equivocal as to whether the 1869 grant was invalid on its own terms or was validly repealed by the 1873 Act.¹⁸ Both the Illinois Central decision and subsequent case law make it clear that the State of Illinois possessed some authority to alienate submerged lands,¹⁹ so one must conclude that the problem with the 1869 Act was that it granted too much land: virtually the entire lake front of the City of Chicago.²⁰ The Court's concern was not that the submerged lands would be developed by the Railroad to the detriment of the lake environment, but rather that the Railroad would use its monopolistic position to stand in the way of development of the waterfront.²¹

Prior to the Illinois Central case, the dispute in public trust cases was generally between competing private claims under prestatehood and poststatehood grants. This continued to be the context of most public trust cases in the decades after 1892, but the Illinois Central case opened the door to the idea that state grants of submerged lands were sometimes simply beyond the legitimate authority of state legislatures. Once it was accepted that legislative authority could be limited by something other than the constitution, it was inevitable that other limits on legislative authority would be proposed to the courts. Although some observers have been troubled by these implicit limits on democratic government,²² Professor Sax has developed an influential rationalization for the doctrine rooted in the maintenance of democratic principles.²³

Over the last two decades many state courts have enthusiastically embraced the public trust doctrine,²⁴ with its constraints on past and present legislative action, as a tool for the pursuit of environmental values.²⁵ Legislatures and administrators have also been attracted to the doctrine [19 ELR 10053] because it provides a rationale for state action while avoiding the claims of private property owners who are affected by such action. The rationale is that the state is merely acting as trustee to protect public rights that have existed, if not from the beginning of time, at least from the beginning of the American experiment in constitutional government. And so it was that the State of Mississippi saw in the public trust doctrine a basis for claiming title to submerged lands from which it hoped to generate royalty income through oil and gas leases.

Phillips Petroleum v. Mississippi

In 1986, the Mississippi Supreme Court decided what it described as merely a "title suit," although the court recognized that "great public interests and neither insignificant nor illegitimate private interests" were affected.²⁶ The case involved competing private and public claims to nonnavigable, inland, tidal lands.²⁷ Both the state and the private claimants sought to lease the tidelands for petroleum development. The Mississippi court concluded that the state had the better claim, notwithstanding that the private claimants had paid property taxes and had record title in a chain of title extending over a century and a half.

The Supreme Court of the United States, with Justice White writing for a majority of five, agreed with the Mississippi court that the issue in the case is one of title and affirmed that the state is the legal owner of the tidelands in question.²⁸ Justice O'Connor, joined by Justices Stevens and Scalia, dissented, asserting that the majority decision establishes a rule that "will disrupt the settled expectations of landowners not only in Mississippi but in every coastal State."²⁹

At issue in the case was the narrow question of whether lands under nonnavigable, inland waters affected by the ocean tides are among those lands that the states acquired upon joining the union. If so, title would remain in the state unless it was subsequently granted bythe state or unless a prestatehood grant was recognized at the time of statehood. The private claimant alleged no poststatehood grant, but rather relied upon a prestatehood Spanish grant. Thus, the issue was whether the submerged lands in question were part and parcel of the privately owned riparian lands to which they are adjacent or part and parcel of the lands to which Mississippi gained title upon its admission to the Union.

The resolution of this title dispute involved the public trust doctrine because the equal footing doctrine,³⁰ pursuant to which Mississippi acquired title to certain submerged lands, depends on the public trust doctrine to define the extent of those lands. This reliance dates at least from Pollard's Lessee v. Hagan, in which the United States Supreme Court held that the equal footing doctrine meant that alabama was successor in title to the submerged lands to which the Crown held title prior to the Revolution. "When the Revolution took place, the people of each state became themselves sovereign; and in that character hold 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."³¹ Navigability thus appeared to be the critical factor that defines both the geographical reach of the public trust doctrine and the extent of the states' title under the equal footing doctrine.

The disagreement between the majority and the dissent in Phillips Petroleum turned in large part on the relevance of the navigability of waters overlying the disputed lands. The majority concluded that the decisive factor is whether or not the waters are affected by the tide, and that navigability was used in the English common law as a convenient test for determining the extent of tidal waters.³² The dissent contended that the critical question is whether the waters are in fact navigable.³³ Although both opinions cite abundant authority, the law on the subject was in doubt with respect to inland, nonnavigable tidal waters.³⁴ The issue had never been clearly adjudicated, so it fell to the Supreme Court, as it often does, to settle the matter.

Equity was surely on the side of the private claimants who had record title on the basis of which they had paid property taxes for decades. But, said the Supreme Court, the lands in question are affected by the tide and Mississippi thus gained title to the lands when it became a state in 1817. The private claim, based on the earlier Spanish land grant, was invalid because it was not within the authority of the federal government to recognize such prestatehood grants. Because Mississippi law does not permit adverse possession against the state,³⁵ and because the state has never granted or conveyed title to the lands in question, the private claimants were simply out of luck. They, and all their predecessors in title for a century and a half, were unfortunately mistaken in believing they owned the lands, notwithstanding that the state and its agents had willingly collected taxes and had never indicated any interest in the lands until the prospect of petroleum royalties arose.³⁶

[19 ELR 10054]

Phillips Petroleum and the Limits of the Public Trust Doctrine

Justice O'Connor points out in her dissent that the Phillips Petroleum decision will have a dramatic impact on private claims to coastal lands affected by the tides. By her estimate the decision "will disrupt the settled expectations of landowners not only in Mississippi but in every coastal State"³⁷ on as many as nine million acres of land.³⁸ Few would deny that individuals with record title and a history of paid property taxes are entitled to surprise, if not compensation, at learning that the state really owns these lands. However, although the decision may be bad policy, it is not necessarily bad law. The majority's analysis of the chain of title is really more persuasive than the dissent's, if equitable considerations are put aside.

It has long been accepted, and it was not challenged in Phillips Petroleum, that the states acquired title to the lands underlying nonnavigable coastal waters, all of which are affected by the tides. As the majority observed, it did not aid the petitioners' case to concede "that the States own the tidelands bordering the oceans, bays, and estuaries —even where these areas by no means could be considered navigable, as is always the case near the shore."³⁹ If navigability is not the test along the coastal shore, there seems little reason to insist that it is the test along the shores of inland, tidal waters. The ebb and flow of the tides is at least as certain a test as navigability and one that will provide a consistent rule for both coastal and inland tidal waters.

The Court's opinion, then, clarifies theextent of public trust lands on the coast: the trust encompasses all submerged lands subject to the ebb and flow of the tide. That the "tidal influence" test includes extensive coastal wetlands is the reason that Phillips Petroleum is celebrated by many environmentalists. What, however, are the implications of the case for nontidal waters — including the many freshwater wetlands far removed from the sea?

The Phillips Petroleum case confirmed two precepts related to nontidal property. First, the opinion reaffirms that the test to delineate nontidal public trust lands is traditional navigability in fact. Second, the opinion links state title at the time of statehood with the public trust doctrine, and seems to regard them as co-extensive. The combined effect of these two principles may be to establish that nontidal, nonnavigable wetlands are beyond the reach of the public trust doctrine.

If the Phillips Petroleum "tidal influence" rule were applied to lands underlying inland, nontidal waters, the states would have no title to those lands. Thus, tidal influence cannot be the sole test for state title to submerged lands because it is beyond argument that the states have title to some submerged lands that are not affected by the tides. The extent of state title to nontidal submerged lands is of enormous importance to virtually every state and to many more landowners than are impacted by the holding in Phillips Petroleum. But unlike the lands in issue in that case, there can be little debate about ownership of lands underlying nontidal waters. The states have title to land underlying waters that were navigable in fact at the time of statehood,⁴⁰ and riparian landowners have title to all other submerged lands.⁴¹

The Phillips Petroleum majority acknowledged that the Supreme Court's "decisions in The Genesee Chief and Barney v. Keokuk extended admiralty and public trust doctrine to navigable fresh waters and the land beneath them."⁴² This extension of the English rule was justified in Barney v. Keokuk as based on "sound principles of public policy," and a reflection of "the broad differences existing between the extent and topography of the British island and that of the American continent."⁴³ The Barney v. Keokuk Court, like the Phillips Petroleum Court, was concerned about the extent of the public trust doctrine because it was faced with a title dispute. It was the Court's opinion, again as in Phillips Petroleum, that the state acquired title to those lands underlying waters subject to the public trust.

Although the Phillips Petroleum majority was concerned to point out that the American departure from the English rule did not "simultaneously withdraw[ing] from public trust coverage those lands which had been consistently recognized … as being within that doctrine's scope . ..,"⁴⁴ it is also clear that the extension retained the link between state title and public trust. In other words, Barney v. Keokuk confirmed a public trust in certain nontidal inland waterways where no trust existed under English law, and on that basis concluded that the states held title to the associated submerged lands. Thus, at the time of statehood, the states acquired title to all lands affected by the tide and all lands underlying navigable waters because these lands are subject to the public trust.

There can be no dispute under existing law that the states acquired title only to those lands underlying inland waters that were navigable in fact at the time of statehood.⁴⁵ No one would seriously argue that the states hold title to lands underlying nonnavigable, inland waters, nor would anyone dispute that navigability in fact at the time of statehood is the applicable test. Yet it is often argued, and increasingly accepted by state courts, that the public trust doctrine extends to waters that are nonnavigable under the accepted navigability test for state title purposes. It is this extension of the public trust doctrine that the Phillips Petroleum analysis calls into question. The public trust doctrine cannot be both the measure of state title and a [19 ELR 10055] basis for asserting public rights in privately owned submerged lands.⁴⁶

What has led many state courts astray is the mistaken notion that the states have plenary authority to determine the extent of public trust lands. This misunderstanding seems to stem from language in some late 19th century Supreme Court cases. In Hardin v. Jordan Justice Bradley stated that "it depends on the law of each State to what waters and to what extent this prerogative of the State over the lands under water shall be exercised."⁴⁷ In his dissent in the same case Justice Brewer found it "[b]eyond all dispute, the settled law of this court, established by repeated decisions, … that the question how far the title of a riparian owner extends is one of local law."⁴⁸ In Shively v. Bowlby,⁴⁹ after surveying the laws of the original states on the subject of title to tide waters, Justice Gray stated that "[t]he foregoing summary … shows that there is no universal and uniform law upon the subject …."⁵⁰ The Phillips Petroleum Court cites this statement from Shively as authority for the conclusion that "it 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."⁵¹ In her analysis of the case, Kosloff states that "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."⁵²

The notion that the states can extend the reach of the public trust doctrine is simply contrary to all federal law on the subject. Statements like those in Hardin and Shively do not mean that the states are free to extend the geographical application of the public trust doctrine. Such a conclusion runs counter not only to the Constitution, but to a common sense understanding of what was at issue in almost every public trust case. If the State of Mississippi is free to extend the reach of the public trust doctrine, there would be little point in pursuing a protracted legal battle through the Mississippi courts to the United States Supreme Court when a simple legislative act would do. Indeed, if the extent of the doctrine is purely an issue of state law there would be no federal question to justify Supreme Court review. But there was a federal question, and that was the extent of state title to tidal lands, which in turn depends upon the extent of the public trust doctrine. The Supreme Court does not expressly address the question of state authority to extend the reach of the public trust doctrine. However, its reliance on the reach of the public trust in determining the extent of state title requires that the geographic extent of the public trust be fixed. Its point in citing Shively must be that state title can be diminished from that outer limit.

What the misunderstood statements about state authority mean is that the states are free, subject to the limits of the public trust, to expand the rights of riparians. Immediately after citing Shively and making the above-quoted statement,⁵³ the Phillips Petroleum majority points out that "[s]ome of the original States … did recognize more private interests 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 The same is true with respect to private interests in submerged, inland waters. Under the common law the state had title up to the high water mark, but in some states private rights are recognized down to the low water mark. There is no question that the states were free to alienate title to the land between the high and low water marks.

It is equally clear that the states do not have the authority to assert title to lands that they did not acquire at the time of statehood pursuant to the equal footing doctrine. Indeed, when the Barney v. Keokuk Court recognized that good public policy justified extension of the public trust doctrine to inland, navigable waters, it also stated that the states would have to determine whether "as rules of property, it would now be safe to change these doctrines …."⁵⁵ In Martin v. Waddell's Lessee, which was expressly relied on in Barney, the Court acknowledged that "if the proprietors had been deprived of their just rights by the erroneous judgment of the State Court; it would, perhaps, be difficult to maintain that this decision of itself bound the conscience of this Court."⁵⁶ The 5th and 14th amendments to the Constitution would permit no other conclusion.

Yet state courts, at least since an 1893 Minnesota decision in Lamprey v. State,⁵⁷ have increasingly insisted that state law determines the geographical extent of the public trust doctrine as a source of public rights.⁵⁸ In Lamprey the court was so bold as to suggest that it could adjust the definition of navigability for title purposes in accordance with prevailing "conditions and habits."⁵⁹ When it later became clear that state title depended upon navigability as defined under federal law,⁶⁰ the states sought to [19 ELR 10056] distinguish navigability for public use purposes from navigability for title purposes. The Montana Supreme Court stated this position in a somewhat confused 1984 decision.⁶¹ Citing Lamprey as authority, the Montana Court proposed to "abandon the tool of defining 'navigability' and simply direct[ing] the inquiry to whether the water is susceptible to public use. Under this concept, the question of title to the underlying streambed is irrelevant …. Thus the issue becomes one of use, not title."⁶² Having proposed to abandon the navigability test, the Court then goes on to state, "Navigability for use is a matter governed by state law. It is a separate concept from the federal question of determining navigability for title purposes."⁶³

To achieve this separation of title and use it is necessary to conclude that the public trust doctrine applies to submerged lands to which the state does not have title.⁶⁴ This conclusion is clearly contradicted by the analysis in Phillips Petroleum, which relies on the geographical reach of the public trust doctrine to determine the extent of state title. Of course Phillips Petroleum did not involve non-tidal, inland waters, but there is no logical basis for contending that state title is determined by the public trust doctrine on the coastal waters and not on inland waters. Public trust determines title in both cases. What varies is the test for the geographical extent of the public trust doctrine: on the coast it is tides, and inland it is navigability.

If this analysis is correct, the implications for modern public trust law are significant. The Montana court, for example, would have to conclude that the public trust doctrine does not apply to the 17,000 miles of state waters that are amenable to recreational use,⁶⁵ but only to the 2,000 miles of waters that are navigable under the federal test for state title. Advocates of many public uses of the nation's waters would lament this outcome. But, in the words of Justice Holmes, "[we] are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change."⁶⁶

The linkage of public trust and state title is rooted in the historical purpose of the doctrine, which was to protect against the Crown's abuse of the power inherent in ownership of lands beneath navigable and tidal waters. Both logic and the Supreme Court's decision in Phillips Petroleum require that state title and the public trust doctrine remain geographically coterminous. To contend that the state may assert public rights of use in waters and submerged lands previously in fee simple, private ownership is to assert that the state may take private property without compensation. That private submerged lands acquired from the state are subject to the continued right of the public to enjoy public trust uses does not in any way imply that the public can assert rights in lands not previously in state ownership. Even a casual reading of the Supreme Court's public trust cases⁶⁷ confirms that modern state cases asserting vast public rights in nonnavigable and nontidal waters are rooted entirely in mythology and a desire to achieve public purposes without incurring public expense.

Kosloff states that the decision in Phillips Petroleum "could allow states to regulate huge areas of wetlands for a variety of public needs …."⁶⁸ No doubt it could, but if the implication is that such regulation cannot be achieved without the extension of the public trust doctrine, the statement is misleading. The assertion that great public purposes require extensions of the public trust doctrine is simply not true. The states have alternative, constitutional means to achieve important public purposes. They may regulate pursuant to the police power, and where the police powers are insufficient the states may acquire private rights by eminent domain.

Because the public trust doctrine has been a powerful weapon for environmentalists, they have been inclined to celebrate the Phillips Petroleum decision. But the case is a mixed blessing at best for those who seek to protect the nation's waters from the ravages of development. What the Mississippi public gets from the Supreme Court's decision in their favor is royalties, not environmental protection. Furthermore, Justice White expressly states that public trust lands may be "reclaimed to create land for urban expansion,"⁶⁹ an interpretation the environmentalists will abhor.

The outcome of the Supreme Court ruling in the Mississippi case is thus mixed. The environmentalists may perceive that they have won a victory in the Supreme Court's recognition that inland, nonnavigable, tidal waters are within the public trust. But it is a victory difficult to celebrate since the particular lands in question will produce petroleum, and other developmental uses are clearly within the Court's definition of the public trust.

Although the private claimants lost in the Mississippi case, many other private property owners should find their rights protected in future public trust litigation. If the Supreme Court adheres to its Phillips Petroleum analysis of the public trust doctrine, and if state courts are required to respect this interpretation, private rights on nontidal nonnavigable waters will be secure against the voracious appetites of those who would provide public benefits at private expense by extending public rights over lands that have been unquestionably in private ownership since statehood. It may just be one of those rare victories for private property rights.

1. Kosloff, Phillips Petroleum Co. v. Mississippi: Is the Public Trust Becoming Synonymous with the Public Interest?, 18 ELR 10200 (June 1988).

2. 108 S. Ct. 791, 18 ELR 20483 (Feb. 23, 1988).

3. Kosloff, supra note 1, at 10209.

4. As the facts of the case demonstrate, a state's interest in asserting title to submerged lands will not necessarily be for the purpose of protecting wetlands. However, if the state chooses to protect wetlands its task will be much less complicated if it has title to the affected lands.

5. For several articles discussing modern developments in public trust law, see The Public Trust Doctrine in Natural Resources Law and Management: A Symposium, 14 U.C. DAVIS L. REV. 181-429 (1980).

6. The title reads: Is the Public Trust Becoming Synonymous with the Public Interest?" See Kosloff, supra note 1, at 10200.

7. For an explanation of how some state courts have merged the public trust doctrine with the police power and thus effectively evaded the limits of the takings clause, see Huffman, Avoiding the Takings Clause Through the Myth of Public Rights: The Public Trust and Reserved Rights Doctrines at Work, 3 J. OF LAND USE & ENVTL. L. 171 (1987).

8. Numerous authors and judges have referred to English cases and some have even attributed the doctrine to the Romans, but no one has undertaken a systematic study of the evolution of the doctrine in its historical context. Thus most references to English and Roman law are suspect at best.

9. For a description of this checkered career and a pro-environmentalist argument for abandoning the modern public trust approach, see Lazarus, Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine, 71 IOWA L. REV. 631 (1986).

10. 6 N.J.L. 1 (1821).

11. Id. at 71.

12. Id. at 78.

13. The court stated that the people of New Jersey, through their legislature, "may lawfully erect ports, harbours, basins, docks and wharves; … may bank off those waters and reclaim the land upon the shores; … may build dams, locks and bridges; … may clear and improve fishing places; … [and] may create, enlarge, and improve oyster beds … at the public expense or they may authorize others to do it by their own labour, and at their own expense, giving them reasonable tolls, rents, profits, or exclusive and temporary enjoyments." Id. at 78 (emphasis by court).

14. 41 U.S. (16 Pet.) 367 (1842).

15. The opinion does discuss the Arnold v. Mundy case, but holds "[i]ndependently … of this decision of the Supreme Court of New Jersey … that the proprietors are not entitled to the rights in question." Id. at 418.

16. 146 U.S. 387 (1892).

17. Id. at 452.

18. The Court stated that the 1869 Act "was inoperative to affect, modify, or in any respect to control the sovereignty and dominion of the State over the lands, or its ownership thereof, and … any such attempted operation of the act was annulled by the repealing act." Id. at 460.

19. "The control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining." Id. at 453.

20. "A grant of all the lands under the navigable waters of a State has never been adjudged to be within the legislative power; and any attempted grant of the kind would be held, if not absolutely void on its face, as subject to revocation." Id.

21. "With these limitations the act put it in the power of the company to delay indefinitely the improvement of the harbor …." Id. at 451.

22. See Huffman, Trusting the Public Interest to Judges: A Comment on the Public Trust Writings of Professors Sax, Wilkinson, Dunning and Johnson, 63 DENVER U.L. REV. 565, 570 (1986).

23. "The public trust concept is not so much a substantive set of standards … as it is a technique by which courts may mend perceived imperfections in the legislative and administrative processes." The doctrine, says Sax, is "a medium for democratization." Sax, The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention, 68 MICH. L. REV. 471, 509 (1970). Sax's thesis is based on the assumption that democratic institutions occasionally fail to reflect the majority preference, due to certain malfunctions in the institutions. For example, an administrative action may fail to implement the democratically determined objectives of the authorizing legislation. Even the legislature may make undemocratic decisions, as happens in a poorly apportioned legislature. Sax's thesis is similar to the more general justification of judicial review articulated in J. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1981).

24. A good summary of the modern case law is in Lazarus, supra note 9, at 643-656.

25. Professor Sax urged that "only the public trust doctrine seems to have the breadth and substantive content which might make it useful as a tool of general application for citizens seeking to develop a comprehensive legal approach to resource management problems." See Sax, supra note 23, at 474. For illustrations of how state courts have accepted Sax's invitation, see Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N.J. 296, 294 A.2d 47, 2 ELR 20519 (1972); Matthews v. Bay Head Improvement Ass'n, 471 A.2d 355 (N.J. 1984); National Audubon Society v. Superior Court of Alpine County, 33 Cal. 3d 419, 658 P.2d 709, 13 ELR 20272 (1983); Montana Coalition for Stream Access v. Curran, 682 P.2d 163 (Mont. 1984); and Montana Coalition for Stream Access v. Hildreth, 684 P.2d 1088 (Mont. 1984).

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

27. Inland, tidal waters are those affected by the tides but not adjacent to the coast. For example, the Sacramento River in California is affected by the tide for many miles upstream from the coast. Some of these inland, tidal waters are navigable, others nonnavigable.

28. Phillips Petroleum, 108 S. Ct. at 799, 18 ELR at 20486.

29. 108 S. Ct. at 800, 18 ELR at 20486 (O'Connor, J., Dissenting).

30. The equal footing doctrine was enunciated in Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212, 223 (1844). "When Alabama was admitted to the Union, on an equal footing with the original States, she succeeded to all the rights of sovereignty, jurisdiction and eminent domain …." The language derived from the Northwest Ordinance of July 13, 1787, 1 Stat. 51, 53.

31. 44 U.S. (3 How.) at 229. The language is quoted from Martin v. Waddell's Lessee, 41 U.S. (16 Pet.) at 410.

32. "[T]his Court has consistently interpreted the common law as providing that the lands beneath waters under tidal influence were given States upon their admission into the Union." 108 S. Ct. at 797, 18 ELR at 20485.

33. "Navigability, not tidal influence, ought to be acknowledged as the universal hallmark of the public trust." 108 S. Ct. at 800, 18 ELR at 20487 (O'Connor, J., dissenting).

34. "It is true that none of these cases actually dealt with lands such as those involved in this case …." 108 S. Ct. at 796, 18 ELR at 20485. The earlier cases involved lands submerged under either nonnavigable coastal waters or navigable, inland, tidal waters. Phillips Petroleum is the first Supreme Court case to involve nonnavigable, inland, tidal waters. Thus, it was possible to conclude that with respect to inland waters the critical variable is navigability, rather than tidality.

35. 108 S. Ct. at 799, 18 ELR at 20486.

36. Kosloff does suggest that equity might require a different result where there has been development activity. See Kosloff, supra note 1, at 10208. The distinction between investment in development and investment in acquisition or taxes, however, is unclear.

37. 108 S. Ct. at 800, 18 ELR at 20486 (O'Connor, J., dissenting).

38. 108 S. Ct. at 804, 18 ELR at 20489 (O'Connor, J., dissenting).

39. 108 S. Ct. at 797, 18 ELR at 20485.

40. The states acquired title to these lands at the time of statehood, and they retain title to those that have not been granted or otherwise alienated. An important aspect of the public trust doctrine, as reflected in the Illinois Central case, see supra notes 16-21 and accompanying text, is the requirement that alienations of public trust lands be consistent with the purposes of the trust.

41. The riparian landowners may be private parties, public entities, or the state itself in its proprietary capacity.

42. 108 S. Ct. at 797, 18 ELR at 20485.

43. 94 U.S. 324, 338 (1876). The Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443 (1852), had previously used a similar analysis to extend federal admiralty jurisdiction to nontidal, inland waters.

44. 108 S. Ct. at 797, 18 ELR at 20485.

45. The law is clearly summarized in D. GETCHES, WATER LAW IN A NUTSHELL 39 (1984). "First, navigability for title is determined as of the date each state came into the Union, not the time the determination is made. Second, navigability for title is determined by the natural and ordinary condition of the waterbody at statehood, … [not] by whether the waterbody could be made navigable by reasonable artificial improvements."

46. The public trust doctrine would justify public rights in privately owned submerged lands where those lands were previously held by the state and were alienated subject to the public trust. Thus the public trust applies to private lands between the low and high water marks on navigable waters because those lands were part of what the state acquired at the time of statehood.

47. 140 U.S. 371, 381-382 (1891).

48. Id. at 402.

49. 152 U.S. 1 (1893).

50. Id. at 26.

51. 108 S. Ct. at 794, 18 ELR at 20484.

52. Kosloff, supra note 1, at 10203. I assume that Kosloff means that although state title is fixed by federal law, the states may expand public trust uses and extend the geographic reach of the doctrine. Neither is an acceptable conclusion under a constitutional system that guarantees property rights.

53. See supra note 51 and accompanying text.

54. 108 S. Ct. at 794-95, 18 ELR at 20484.

55. 94 U.S. at 338.

56. 146 U.S. at 418.

57. 52 Minn. 181, 53 N.W. 1139 (1893).

58. State courts have also been aggressive in expanding the range of uses in which the public has a right to engage pursuant to the public trust doctrine. The Phillips Petroleum opinions disagree on this issue as well, the dissent insisting that the focus on the doctrine is on commerce, 108 S. Ct. at 861, 18 ELR at 20487 (O'Connor, J., dissenting), and the majority contending that other uses are protected, 108 S. Ct. at 795, 18 ELR at 20484. Although this question is not central to the issue addressed in this Article, it is worth noting that the majority's broader view of public trust uses is far narrower than the view taken by many state courts.

59. 53 N.W. at 1143. The court argued that "[t]o 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." Id. Of course the state could not "hand over" that which it did not own, and what it owned in the way of submerged lands was determined by the navigability of the overlying waters at the time of statehood.

60. See United States v. Utah, 283 U.S. 64 (1931); United States v. Holt State Bank, 270 U.S. 49 (1926); Brewer-Elliott Oil and Gas Co. v. United States, 260 U.S. 77 (1922).

61. Montana Coalition for Stream Access v. Curran, 682 P.2d 163 (1984).

62. Id. at 169-170.

63. Id. at 170.

64. It might be argued that the Montana court has relied on a doctrine of "public use" as distinct from the doctrine of "public trust," and thus that the geographic limits of the public trust do not constrain states in their exercise of some forms of dominion over submerged lands. However, to accept this argument one must abandon private property as a meaningful concept. The creation of public rights in property where none previously existed is dependent upon taking existing rights. When this is done in the name of an established common law doctrine like the public trust, there is at least a pretense of legality. See generally Huffman, supra note 7. However, when it is done in the name of a previously unknown doctrine, there is not even the appearance of legality.

65. Anderson, The Public Trust v. Traditional Property Rights: What Are the Alternatives? 13, in THE PUBLIC TRUST VS. THE PUBLIC INTEREST: WATER RIGHTS INTRANSITION (T. Anderson ed. 1986).

66. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922).

67. See, e.g., Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892); Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212 (1844); Martin v. Waddell's Lessee, 41 U.S. (16 Pet.) 367 (1842).

68. Kosloff, supra note 1, at 10200.

69. 108 S. Ct. at 795, 18 ELR at 20484.