Supreme Court Declares State Law Controls Riverbed Title Issues

Overturning a three-year-old decision, the United States Supreme Court on January 12 declared that ownership disputes concerning the beds of intrastate navigable water henceforth must be decided as a matter of state law, rather than federal common law. Oregon ex rel. State Land Board v. Corvallis Sand and Gravel Co.,¹ in which the state sought to eject a sand company from parcels it had been mining in Oregon's Willamette River, signals a retrenchment by the Court from adjudicating complicated riparian rights controversies that it feels can adequately be decided by state courts. In narrowing the scope of federal common law,² the Court has thrust upon the states the added responsibility of ensuring that the results of such land disputes do not impair the public trust in state riverbed resources.

The controversy in Corvallis arose out of the State of Oregon's action to eject the sand company from parcels on which it had been mining for over 40 years. The parcels, in what is known as the Fischer Cut, were not part of the riverbed when Oregon was admitted to the Union. After a gradual shift in the river's course across Fischer Cut during its high-water stages and following a major flood in 1909, the parcels became part of the river's main channel.

The Oregon courts determined, under the guidance of the Supreme Court's 1973 decision in Bonelli Cattle Co. v. Arizona,³ that federal common law principles required the conclusion that Corvallis owned the lands. The lower courts found that the state's sovereign title to the riverbed lands does not move with the course of the river and that the state's interest in river navigation and fishing did not entail ownership of the new riverbed. Concluding that the state's right in the riverbed relates only to a limited, navigational purpose, the Oregon Court of Appeals declared that this right could be served equally by assertion of a navigation servitude without the state's holding complete title.⁴

Reversing this holding, the Supreme Court held that Bonelli had overextended a line of cases, beginning with Pollard's Lessee v. Hagan,⁵ that concerned states' rights in navigable waters. In those cases, the Court had developed and applied the "equal footing doctrine" which holds that new states, upon admission to the Union, acquire title to the lands underlying navigable waters within their boundaries. The Court in Bonelli interpreted the relevant inquiry to be a determination of:

how far the State's sovereign right extends under the equal-footing doctrine and the Submerged Lands Act — whether the State retains title to the lands formerly beneath the stream of the Colorado River or whether that title is defeasible by the withdrawal of those waters.⁶

The Court in Bonelli held that this inquiry was a matter of federal law. In Corvallis, though, the Court retracted this assertion of continuing federal interest in navigable, intrastate riverbeds:

Although federal law may fix the initial boundary line between fast lands and the riverbeds at the time of the State's admission to the Union, the State's title to the riverbed vests absolutely as of the time of its admission and is not subject to later defeasance by operation of any doctrine of federal common law.⁷

While thus limiting the equal footing doctrine to the initial fixing of boundaries along intrastate navigable waters, the Court expressly reserved its traditional role of arbitrating under its original jurisdiction disputes between states concerning interstate boundaries along rivers.This body of law, the Court said, had developed parallel to the pre-Bonelli cases⁸ that held state law applicable to riparian disputes.

Justice Marshall, in dissent, criticized the majority for depriving federal riparian grantees of their right to ambulatory boundaries and the concomitant protections of federal common law. His criticism could to some extent be anticipated since he wrote the Bonelli opinion. Interestingly, the dissent seems to have a firmer grasp of the federal-state issue than did the majority. The majority adverted to this substantial issue only in the context of its break with the principle of stare decisis in overruling Bonelli. Justice Marshall, on the other hand, immediately recognized that the federal common law rules applied in Bonelli act as a fundamental limitation on state power. He buttressed this assertion by pointing out that the United States Solicitor General had not been asked by the Court to submit an amicus brief on the impact of the ruling on the federal government.

Justice Marshall's views can be put in context by briefly analyzing the Bonelli decision and its subsequent impact. The Bonelli land bordering the Colorado River eroded over time but then reemerged following a federal rechanneling project that deepended the river. This land had not been part of the riverbed at the time Arizona became a state and had been granted by federal patent to Bonelli's predecessor in title. The Arizona court held that, under Arizona law, the state obtained title to the riverbed during the river's migration and that the reemergence, as an avulsive change, did not divest the state of its title to the exposed land.

The Supreme Court reversed, holding that Arizona's interest in protecting navigation and fisheries was insufficient, [7 ELR 10046] under federal common law, to overcome Bonelli's interest as riparian owner. Characterizing the state's interest in the reemerged lands as very narrow, the Court determined that federal common law doctrines required the application of accretion⁹ principles (a process the Arizona court described as avulsion) and thus Bonelli retained the land as riparian owner. In so doing, the Court treated Arizona as merely a proprietor rather than attempting to fashion a rule governing the state's sovereign duties concerning this fast land by analogy to its sovereign duties concerning navigable waters.

The majority in Corvallis said that Bonelli should be viewed as an aberrant overextension of the Pollard's Lessee-Borax¹⁰ line of cases. Thus, adherence to stability in the land title area in the majority's view compelled overruling Bonelli rather than blind adherence to stare decisis. Although the Court did not take time to follow the impact of Bonelli on subsequently-decided cases before overruling it, the decision seems to have caused more confusion than clarity. Inconsequentially mentioned by the Supreme Court only once,¹¹ Bonelli has been relied on by two circuits, in United States v. 1,629.6 Acres of Land¹² and Ritter v. Morton,¹³ for the separable propositions that a riparian owner gains title when eroded land reemerges, and that federal law governs the boundaries of a federal patent. This disparity was combined in a somewhat confusing manner by one district court decision, Confederated Salish and Kootenai Tribes v. Namen,¹⁴ in which the court explained Bonelli as reiterating the general rule that the extent of a federal grant on a navigable stream is a federal question while the rights of riparians are governed by state law. In Bonelli, however, the Court had actually decided that federal law determines the extent of riparian rights in navigable streams.

State courts have been more critical of Bonelli than have the federal courts. The Supreme Court of Mississippi¹⁵ and the Washington Court of Appeals¹⁶ have accused the Supreme Court in Bonelli of incorrectly describing the law of accretion. The Louisiana Supreme Court strictly limited Bonelli's application to only those portions of riverbeds above the high-water mark.¹⁷ And, the same court a year later declared¹⁸ that Bonelli stood for the long-established principle that states hold title to their navigable riverbeds in trust for the people,¹⁹ although Bonelli's limitations on states' ability to control the uses of navigable riverbeds actually subjected that trust duty to possibly inconsistent federal common law.

This disparity in state court decisions dealing with riparian ownership may now become more pronounced since Corvallis overruled Bonelli's limitation of state law in this area. The 26 states that urged in three amicus briefs in Corvallis that Bonelli be overturned achieved their goal and now must assume responsibility for deciding riverbed land title cases not involving interstate boundaries. Corvallis implies that states are not restricted to navigation-related purposes in justifying regulation or ownership of relicted or accreted riparian lands. Whether states will responsibly exercise this power depends on the various states' laws of riparian rights and is consequently had to predict. One inference that can be made is that the public trust doctrine, which provides a significant grant as well as limitation on state powers regarding navigable waters and riverbottoms, may receive increasing judicial attention.²⁰

There is, to be sure, the criticism voiced by Justice Marshall that federal common law provides a more certain base for navigable waters-riparian rights decisions than do the laws of the various states. Considering the confusion engendered by the Court's reasoning in Bonelli, however, the necessary certainty is not an automatic result of Supreme Court disposition of riparian rights cases.

Whether for this reason, or for reason that the Court appears anxious to forego examining difficult factual, nonconstitutional cases such as Corvallis and Bonelli, the Court has carved out for itself in this area only the limited issue of interstate boundary disputes, which it will hear under its original jurisdiction. The implications of this position on the federal level may possibly be substantial. Federal lands bordering rivers are now subject to state riparian rules, a fact which may affect the scope and nature of federal water projects. Indeed, Congress will have no voice in the question of land titles relating to navigable waters, since the Court held²¹ that state titles are constitutionally conferred and thus immune from congressional control.²² The true impact of Corvallis thus [7 ELR 10047] may not become known for some time. Definition of the exact relationship between Congress' powers under the Commerce Clause and its navigational servitude on the one hand and states' rights in navigable riverbeds on the other will require substantial interplay between subsequent federal legislation, state court decisions, and future Supreme Court action, all of which will almost certainly follow in the wake of Corvallis.

1. 45 U.S.L.W. 4105, 7 ELR 20137 (U.S. Jan. 12, 1977).

2. The scope of federal common law has been narrowed in recent federal decisions. Comment, Two Circuits Scuttle Expansion of Federal Common Law, 6 ELR 10256 (Nov. 1976).

3. 414 U.S. 313, 4 ELR 20094 (1973), noted in 50 Wash. L. Rev. 777 (1975).

4. State v. Corvallis Sand & Gravel Co., 18 Ore. App. 524, 526 P.2d 469 (1974), aff'd as modified, __ Ore. __, 536 P.2d 517, rehearing denied, __ Ore. __, 538 P.2d 70 (1975), rev'd, Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 45 U.S.L.W. 4105, 7 ELR 20137 (U.S. Jan. 12, 1977).

5. 44 U.S. (3 How.) 212 (1845).

6. Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 319-20, 4 ELR 20094, 20095 (1973).

7. Oregon v. Corvallis Sand & Gravel Co., 41 U.S.L.W. 4105, 4107, 7 ELR 20137, 20139 (U.S. Jan. 12, 1977).

8. Borax, Ltd. v. Los Angeles, 296 U.S. 10 (1935); Shively v. Bowlby, 152 U.S. 1 (1894); Barney v. Keokuk, 94 U.S. 324 (1876).

9. Accretion is the increase of land by the gradual or imperceptible action of water. Its converse, reliction, is the gradual recession of water leaving permanently uncovered land. Avulsion is the sudden cutting off of land by flood, currents, or change in course of a body of water.

10. Borax, Ltd. v. Los Angeles, 296 U.S. 10 (1935) (boundary between upland and tideland at time of state's admission to Union a matter of federal law).

11. See Arkansas v. Mississippi, 415 U.S. 289, 291 (1974) (interstate boundary dispute).

12. 503 F.2d 764 (3d Cir. 1974).

13. 513 F.2d 942 (9th Cir. 1975).

14. 380 F. Supp. 452 (D. Mont. 1974).

15. H.K. Porter Co. v. Board of Supervisors, __ Miss. __, 324 So. 2d 746, 750 (1975).

16. Strom v. Sheldon, 12 Wash. App.2d 70, 527 P.2d 1382 (1974).

17. State v. Placid Oil Co., 300 So. 2d 154 (La. 1974).

18. Gulf Oil Co. v. State Mineral Board, 317 So. 2d 576 (La. 1975), noted in 50 Tulane L. Rev. 193 (1975), 36 La. L. Rev. 694 (1976).

19. See Illinois Central R. Co. v. Illinois, 146 U.S. 387 (1892).

20. See., e.g., State v. Ashmore, 236 Ga. 401, 224 S.E.2d 334, 6 ELR 20438 (1976), noted in 27 Mercer L. Rev. 1229 (1976); criticized in Note, The Georgia Foreshore and State v. Ashmore: The Legislature Giveth and the Judiciary Taketh Away, 7 Env. L. 153 (1976). See generally Comment, Recent State Watlands Cases: The Continuing Battle Over the Proper Scope of Regulation, 6 ELR 10125 (June 1976).

21. Oregon v. Corvallis Sand & Gravel Co., 45 U.S.L.W. 4105, 4108, 7 ELR 20137, 20140 (U.S. Jan. 12, 1977).

22. To the extent that federal property is involved, Congress may have power under the Property Clause, U.S. Const. art. IV, § 3, to preempt state law. See Kleppe v. New Mexico, 426 U.S. 529, 6 ELR 20545 (1976); Comment, Supreme Court Confirms Supremacy of Federal Authority to Manage Wildlife on Federal Lands, 6 ELR 10171 (Aug. 1976).