As to “navigable waters” issues, it is a confusing mess because both the federal and state courts are involved, and the state legislatures.
The textbook by Sax, Leshy et all state that there are 5 different navigability doctrines test. The treatise by Wilinson, Coggins, Glicksman et al agrees.
The federal test for nav. is from the seminal admiralty case of In re The Daniel Ball, and it is referred to as “The Daniel Ball Test.” In that case, the question was about admiralty jurisdiction, but the test applies outside of admiralty. That test is not as extreme as that which the state legislatres have made under “navigability for title” and the application of the courts has not been consistent. There is such thing as a federal navigational servitude and a state floatage easement (in some). Just because there is a servitude or floatage easment does not mean that you can walk around or drop an anchor.
The basis of it all is that in Roman civil law, the empire owned the streambed of all navigable waters and streams, and held it in trust for the use of all the citizens of the empire. The Romans spread that doctrine throughout Europe through conquest, and it stuck after the fall of the empire. It made its way into the English common law, and was the law of the land here in the original 13 colonies before there was a nation or constitution. That is known as the “public trust doctrine.” The commentators who are experts on the subject, i.e. Leshy, Sax, Wilkinson, Coggins, Glicksman, state that the PTD is a federal commonlaw doctrine. It is important to note and somewhat problematic that others contend it to be a state common law doctrine. Among them is Scalia, who in dicta in the Coer d’Alene case in 1996 which decided a case in favor of the State of Idaho on 11th Amend sovereing immunity grounds argued that it was a state law doctrine. That is problematic, and coupled with sovereign immunity issues and the prospects of Scalia’s future position on the SCOTUS, could spell real problems for the future of the PTD. For the record, there are a bunch of SCOTUS cases addressing the EFD and the PTD. The SCOTUS has limited jurisdiction, and most of it is optional via certiorari; there is little mandatory appellate jurisdiction. Morevoer, the SCOTUS does not have the general power to decide whether issues of state law are correct. The typical instances in which cases involving state law get there is when there is a federal constnl question (i.e. conflict with US constn) or a preemption question i.e. preemption by federal law.
There is another misunderstood and misapplied doctrine called the equal footing doctrine. The EFD, in essence, is a mirror image rule. Under it, all later- admitted states had to have the same rights, privileges, etc. as the original states. Some have remarked that the EFD is a constnl doctrine, but it does not appear anywhere in the constn, and in fact, the first time that it appeared was in the Ohio Statehood Act. Therefore, there are those who argued that it was Congressional policy rather than a constnl doctrine.
The relevance of the EFD to the PTD is that, if the original colonies (and by extension the origianl states) were vested with ownership of streambeds of navigable streams under the PTD, then under the EFD, the later admitted states had to won them too. Pollard v. Hagan enunciated the rule that upon statehood, new states acquired title to beds of waters that were subject to the tides or were navigable AT THE MOMENT OF STATEHOOD. (An important point here.) The state acuired the bed and banks up to the high water mark. SCOTUS decided in Phillips Petroleum v. Missippi that states succeed to the title of submerged lands subject to the ebb and flow of the tide whether the water was navigable or not. There was no explicit grant by the fed govt, the title passed automatically at statehood. It was possible for the fed govt to reserve ownership of such lands to itself when creating the state, but the reservation has to be expclicit and specific.
Under the SCOTUS decision in Illinois Central R.R. v. Illinois, the court held that the states can make adjustments to the scope somewhat, but can not abandon it altogether. The court nullified the conveyance of the property in the bed of the great lake to the railroad because the transfer would violate the PTD. The court clearly exercised jurisdiction and made the decision, which raises the question of how it could have donse such a thing if the PTD were a creature of state law.
The eastern states in essence passed restrictive navigability for title statutes to allow farmers to build fences across streams to contain livestock. If the stream were navigable, the farmers would have to leave it open for navigation and could not build fences. Some eastern states have said that there is no land is public trust, which is nuts, in light of the Illinois Central case. Moreover, if the PTD did not exist in those eastern states, and the EFD was a mechanism for extending the characteristics, rights etc. to the later-admitted states, how is it that the western states ended up with the PTD? It could only have gotten there by extension from the east.
That part about Georgia above is not quite right. We have a very restrictive test for whether water is navigable, you essentially have to show that barges can operate in it.
I look forward to the day that someone calls me with the chance to challenge the Georgia statute.
