Property Rights of States to Soil Under Navigable Waters

SECTION 3. Clause 1. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.


Annotations

The “equal footing” doctrine has had an important effect on the property rights of new states to soil under navigable waters292 and tidally influenced waters.293 In Pollard’s Lessee v. Hagan,294 as was observed above, the Court held that the original states had reserved to themselves the ownership of the shores of navigable waters and the soils under them, and that under the principle of equality the title to the soils beneath navigable water passes to a new state upon admission. The principle of this case, which also applies to tidally influenced waters, supplies the rule of decision in many property-claims cases.295

After refusing to extend the inland-water rule of Pollard’s Lessee to the three mile marginal belt under the ocean along the coast,296 the Court applied the principle in reverse in United States v. Texas.297 Because the original states had been found not to own the soil under the three mile belt, Texas, which concededly did own this soil before its annexation to the United States, was held to have surrendered its dominion and sovereignty over it, upon entering the Union on terms of equality with the existing states. To this extent, the earlier rule that unless otherwise declared by Congress the title to every species of property owned by a territory passes to the state upon admission298 has been qualified. However, when Congress, through passage of the Submerged Lands Act of 1953,299 surrendered its paramount rights to natural resources in the marginal seas to certain states, without any corresponding cession to all states, the transfer was held to entail no abdication of national sovereignty over control and use of the oceans in a manner destructive of the equality of the states.300

While the territorial status continues, the United States has power to convey property rights, such as rights in soil below the high-water mark along navigable waters,301 or the right to fish in designated waters,302 which will be binding on the state.


292 “Navigable waters”, for equal footing purposes, are those waters used, or susceptible to use, for trade and travel at the time of statehood. PPL Montana, LLC v. Montana, 565 U.S. ___, No. 10–218, slip op. at 11–13 (2012).

293 E.g., Knight v. U.S. Land Association, 142 U.S. 161, 183 (1891).

294 44 U.S. (3 How.) 212, 223 (1845). See also Martin v. Waddell, 41 U.S. (16 Pet.) 367, 410 (1842).

295 See PPL Montana, LLC v. Montana, 565 U.S. ___, No. 10–218, slip op. (2012) (Montana not able to charge rent to hydroelectric facilities located on portions of rivers that were impassable when Montana became a State); Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988) (confirming language in earlier cases recognizing state sovereignty over tidal but nonnavigable lands); Utah Division of State Lands v. United States, 482 U.S. 193 (1987) (applying presumption against congressional intent to defeat state title to find inadequate federal reservation of lake bed); Idaho v. United States, 533 U.S. 262 (2001) (presumption rebutted by indications—some occurring after statehood—that Congress intended to reserve certain submerged lands for benefit of an Indian tribe); Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363 (1977) (doctrine requires utilization of state common law rather than federal to determine ownership of land underlying river that is navigable but not an interstate boundary); Shively v. Bowlby, 152 U.S. 1 (1894) (whether Oregon or a pre-statehood grantee from the United States of riparian lands near mouth of Columbia River owned soil below high-water mark).

296 United States v. California, 332 U.S. 19, 38 (1947); United States v. Louisiana, 339 U.S. 699 (1950).

297 339 U.S. 707, 716 (1950). See United States v. Maine, 420 U.S. 515 (1975) (unanimously reaffirming the California, Louisiana, and Texas cases).

298 Brown v. Grant, 116 U.S. 207, 212 (1886).

299 67 Stat. 29, 43 U.S.C. §§ 1301–1315.

300 Alabama v. Texas, 347 U.S. 272, 274–77, 281 (1954). Justice Black and Douglas dissented.

301 Shively v. Bowlby, 152 U.S. 1, 47 (1894). See also Joy v. St. Louis, 201 U.S. 332 (1906).

302 United States v. Winans, 198 U.S. 371, 378 (1905); Seufert Bros. v. United States, 249 U.S. 194 (1919). A fishing right granted by treaty to Indians does not necessarily preclude the application to Indians of state game laws regulating the time and manner of taking fish. New York ex rel. Kennedy v. Becker, 241 U.S. 556 (1916). See also Metlakatla Indians v. Egan, 369 U.S. 45, 54, 57–59 (1962); Kake Village v. Egan, 369 U.S. 60, 64–65, 67–69, 75–76 (1962). But it has been held to be violated by exacting a license fee that is both regulatory and revenue-producing. Tulee v. Washington, 315 U.S. 681 (1942).