In The

Supreme Court of the United States




Decided February 23, 1988

Justice O’Connor, Dissenting

Topic: Miscellaneous*Court vote: 5–3
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Joining O'Connor opinion: Justice SCALIA Justice SCALIA Justice STEVENS Justice STEVENS
Citation: 484 U.S. 469 Docket: 86–870Audio: Listen to this case's oral arguments at Oyez

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Breaking a chain of title that reaches back more than 150 years, the Court today announces a rule that will disrupt the settled expectations of landowners not only in Mississippi but in every coastal State. Neither our precedents nor equitable principles require this result, and I respectfully dissent from this undoing of settled history.


As the Court acknowledges, ante at 484 U. S. 478, this case presents an issue that we never have decided: whether a State holds in public trust all land underlying tidally influenced waters that are neither navigable themselves nor part of any navigable body of water. In holding that it does, the majority relies on general language in opinions that recognized state claims to land underlying tidewaters. But those cases concerned land lying beneath waters that were in fact navigable, e.g., Shively v. Bowlby, 152 U. S. 1 (1894) (Columbia River in Oregon), or beneath waters that were part of or immediately bordering a navigable body of water, e.g., Mann v. Tacoma Land Co., 153 U. S. 273 (1894) (shallow tidelands in Commencement Bay in Washington). Until today, none of our decisions recognized a State's public trust title to land underlying a discrete and wholly nonnavigable body of water that is properly viewed as separate from any navigable body of water.

In my view, the public trust properly extends only to land underlying navigable bodies of water and their borders, bays, and inlets. This Court has defined the public trust repeatedly in terms of navigability. E.g., Utah Div. of State Lands v. United States, 482 U. S. 193 (1987); Montana v. United States, 450 U. S. 544, 450 U. S. 551 (1981); Utah v. United States, 403 U. S. 9, 403 U. S. 10 (1971); United States v. Oregon, 295 U. S. 1, 295 U. S. 14 (1935); United States v. Utah, 283 U. S. 64, 283 U. S. 75 (1931); United States v. Holt State Bank, 270 U. S. 49, 270 U. S. 54 -55 (1926); Brewer-Elliott Oil & Gas Co. v. United States, 260 U. S. 77, 260 U. S. 84 -85 (1922); Oklahoma v. Texas, 258 U. S. 574, 258 U. S. 583 (1922); Pollard's Lessee v. Hagan, 3 How. 212, 44 U. S. 230 (1845). It is true that these cases did not involve waters subject to the ebb and flow of the tide. But there is no reason to think that different tests of the scope of the public trust apply to saltwater and to freshwater. Navigability, not tidal influence, ought to be acknowledged as the universal hallmark of the public trust.

The public trust doctrine has its roots in English common law. Traditionally, all navigable waterways in England were by law common highways for the public. M. Hale, De Jure Maris et Brachiorum ejusdem, cap. iii (1667), reprinted in R. Hall, Essay on the Rights of the Crown and the Privileges of the Subject in the Sea Shores of the Realm, App. v (2d ed. 1875). Furthermore, the King held title to the soil beneath the sea and the arms of the sea, "where the sea flows and reflows." Hale, cap. iv, reprinted in Hall, supra, at App. vii, ix. When the first American States became sovereign after our Revolution, their governments succeeded to the King's rights with respect to waters within their borders. Martin v. Waddell, 16 Pet. 367, 41 U. S. 410 (1842). New States like Mississippi, upon entering the Union, acquired equivalent rights under the equal-footing doctrine. Pollard's Lessee v. Hagan, supra, at 44 U. S. 228 -229. Hence, both petitioners and respondents have made an effort to ascertain the extent of the King's rights under English common law.

Unfortunately, English cases of the late 18th and early 19th centuries did not directly address whether the King held title to lands underlying tidally influenced, nonnavigable waters. Certainly the public's right of navigation was limited to waterways that were navigable in fact, and did not extend to every waterway subject to the ebb and flow of the tide. As Lord Mansfield explained:

How does it appear that this is a navigable river? The flowing and reflowing of the tide does not make it so, for there are many places into which the tide flows that are not navigable rivers; and the place in question may be a creek in their own private estate.

Mayor of Lynn v. Turner, 1 Cowp. 86, 98 Eng.Rep. 980, 981 (K.B. 1774). This principle of British law has proved enduring. See Rex v. Montague, 4 B. & C. 598, 602, 107 Eng.Rep. 1183, 1184 (K.B. 1825); S. Hobday, Coulson & Forbes on the Law of Waters 100-101 (6th ed.1952). It appears, however, that the King's title to submerged land was not coextensive with the public's right of navigation. Thus in Murphy v. Ryan, 2 Ir. R.-C. L. 143, 152 (1868), the court explained that the King did not hold title to the land underlying navigable waters, unless they were influenced by the tide. Accord, Earl of Ilchester v. Raishleigh, 61 L.T.R.(n.s.) 477, 479 (Ch. 1889); Hobday, supra, at 102. It may be that the King also did not hold title to land underlying tidally influenced waters, unless they were navigable. Certainly there are cases that describe the King's proprietary rights as pertaining to land underneath navigable water. Rex v. Smith, 2 Dougl. 441, 446, 99 Eng.Rep. 283, 285 (K.B. 1780); Lord Advocate for Scotland v. Hamilton, 1 Macq. 46, 49 (H.L. 1852); Le Roy v. Trinity House, 1 Sid. 86, 82 Eng.Rep. 986 (K.B. 1662). This strongly suggests that English common law did not authorize the claims that Mississippi makes in this case.

American cases have developed the public trust doctrine in a way that is consistent with its common law heritage. Our precedents explain that the public trust extends to navigable waterways because its fundamental purpose is to preserve them for common use for transportation.

It is, indeed, the susceptibility to use as highways of commerce which gives sanction to the public right of control over navigation upon [navigable waterways], and consequently to the exclusion of private ownership, either of the waters or the soils under them.

Packer v. Bird, 137 U. S. 661, 137 U. S. 667 (1891). Similarly, the Court has emphasized that the public trust doctrine "is founded upon the necessity of preserving to the public the use of navigable waters from private interruption and encroachment." Illinois Central R. Co. v. Illinois, 146 U. S. 387, 146 U. S. 436 (1892).

Although the States may commit public trust waterways to uses other than transportation, such as fishing or land reclamation, this exercise of sovereign discretion does not enlarge the scope of the public trust. Even the majority does not claim that the public trust extends to every waterway that can be used for fishing or for land reclamation. Nor does the majority explain why its tidal test is superior to a navigability test for the purpose of identifying waterways that are suited to these other uses.

Because the fundamental purpose of the public trust is to protect commerce, the scope of the public trust should parallel the scope of federal admiralty jurisdiction. This Court long ago abandoned the tidal test in favor of the navigability test for defining federal admiralty jurisdiction, describing the ebb and flow test as "purely artificial and arbitrary, as well as unjust." The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 53 U. S. 457 (1852). The Court recognized that whether waters are influenced by the tide is irrelevant to the purposes of admiralty jurisdiction, which are to facilitate commerce in times of peace and to administer the special rules of war. Id. at 53 U. S. 454. Subsequent admiralty cases confirm that "the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all of the navigability of waters." The Daniel Ball, 10 Wall. 557, 77 U. S. 563 (1871).

Having defined admiralty jurisdiction in terms of navigability, the Court applied the same reasoning to the problem of defining the public trust. The Court explained that

the public authorities ought to have entire control of the great passageways of commerce and navigation, to be exercised for the public advantage and convenience.

Barney v. Keokuk, 94 U. S. 324, 94 U. S. 338 (1877). And it sweepingly concluded that the tidal test "had no place in American jurisprudence since the decision in the case of The Propeller Genesee Chief v. Fitzhugh, 12 How. 443." McGilyra v. Ross, 215 U. S. 70, 215 U. S. 78 (1909). These cases defined the public trust in the context of inland waterways. But the same reasoning applies to waterways influenced by the tide. Navigability, not tidal influence, characterizes the waterways that are suited to the purposes of the public trust.

Congress also has evidenced its belief that the States' public trusts are limited to lands underlying navigable waters. In 1953, Congress passed the Submerged Lands Act, 43 U.S.C. §§ 1301-1315. Congress intended to confirm the States' existing rights to lands beneath navigable waters. S.Rep. No. 133, 83d Cong., 1st Sess., pt. 1, p. 8 (1953); H.R.Rep. No. 1778, 80th Cong., 2d Sess., p. 3 (1948); Bonelli Cattle Co. v. Arizona, 414 U. S. 313, 414 U. S. 324 (1973). The Act defines "lands beneath navigable waters" as including lands "covered by tidal waters." 43 U.S.C. § 1301(a)(2). If tidal waters included discrete bodies of nonnavigable water, this definition would be self-contradictory. Thus it appears that Congress understood "tidal waters" as referring to the boundaries of the navigable ocean. As Senator Cordon explained, "lands beneath navigable waters" identifies lands "as being under nontidal waters in the upper areas or being in tidal waters and -and I want this emphasized -outside inland waters." 99 Cong.Rec. 2632 (1953). Although the Submerged Lands Act is not at issue in this case, it is evidence of Congress' interpretation of the public trust doctrine, and that interpretation is entitled to consideration.

In sum, the purpose of the public trust, the analogy to federal admiralty jurisdiction, and the legislative history of the Submerged Lands Act all indicate that the States hold title only to lands underlying navigable waters. The term "navigable waters" is not self-defining, however. It must be construed with reference to cases in which this Court has described the boundaries of the public trust.

For public trust purposes, navigable bodies of water include the nonnavigable areas at their boundaries. The question whether a body of water is navigable is answered waterway by waterway, not inch by inch. The borders of the ocean, which certainly is navigable, extend to the mean high tide line as a matter of federal common law. United States v. Pacheco, 2 Wall. 587, 69 U. S. 590 (1865); see Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U. S. 363, 429 U. S. 376 (1977). Hence, the States' public trusts include the ocean shore over which the tide ebbs and flows. This explains why there is language in our cases describing the public trust in terms of tidewaters: each of those cases concerned the shores of a navigable body of water. See, e.g., Borax Consolidated, Ltd. v. Los Angeles, 296 U. S. 10, 296 U. S. 16 (1935); United States v. Mission Rock Co., 189 U. S. 391, 189 U. S. 404 -405 (1903); Knight v. United States Land Assn., 142 U. S. 161, 142 U. S. 183 (1891). This does not imply, however, that all tidally influenced waters are part of the sea, any more than it implies that the Missouri River is part of the Gulf of Mexico.

The Court holds today that the public trust includes not only tidewaters along the ocean shore but also discrete bodies of water that are influenced by the tide but far removed from the ocean or any navigable tidal water, such as the separate little streams and bayous at issue here. The majority doubts whether a satisfactory test could be devised for distinguishing between the two types of tidally influenced waters. Ante at 484 U. S. 481. It therefore adopts a test that will include in the public trust every body of water that is interconnected to the ocean, even indirectly, no matter how remote it is from navigable water. This is wholly inconsistent with the federal law that identifies what inland freshwaters belong to the public trust. For example, if part of a freshwater river is navigable in fact, it does not follow that all contiguous parts of the river belong to the public trust, no matter how distant they are from the navigable part. Conversely, federal law does not exclude from the public trust all nonnavigable portions of a navigable river, such as shallow areas near the banks.

The question here is not with respect to a short interruption of navigability in a stream otherwise navigable, or of a negligible part, which boats may use, of a stream otherwise nonnavigable. We are concerned with long reaches with particular characteristics of navigability or nonnavigability....

United States v. Utah, 283 U.S. at 283 U. S. 77 (footnote omitted). See Oklahoma v. Texas, 258 U. S. 574 (1922) (applying the navigability test to identify what parts of the Red and Arkansas Rivers belong to the public trust). To decide whether the tidewaters at issue in this case belong to the public trust, the Court should apply the same fact-specific navigability test that it applies to inland waters. It should distinguish between navigable bodies of water and connected, but discrete, bodies of tidally influenced water. To this end, Justice Field once applied the headland-to-headland test, a "universal rule governing the measurement of waters," and drew a boundary dividing the navigable waters of San Francisco Bay from the tidally influenced waters of Mission Creek. Knight v. United States Land Assn., supra, at 142 U. S. 207 (concurring opinion). Only waterways that are part of a navigable body of water belong to the public trust.


The controversy in this case concerns more than cold legal doctrine. The particular facts of this case, to which the Court's opinion gives short shrift, illustrate how unfortunate it is for the Court to recognize a claim that appears belated and opportunistic.

Mississippi showed no interest in the disputed land from the time it became a State until the 1970's. Petitioners, or prior titleholders, recorded deeds on the land and paid property taxes throughout this period. App. to Pet. for Cert. 41a. In 1973, Mississippi passed the Coastal Wetlands Protection Law. Miss.Code Ann. §§ 49-27-1 to 49-27-69 (Supp.1987). This statute directed the Mississippi Marine Resources Council to prepare maps identifying state-owned wetlands. The maps, drawn from aerial photographs, were intended to show the probable scope of state-owned wetlands in order to aid state agencies in planning to protect them. § 49-27-65. But the Mineral Lease Commission decided to use the maps as a basis for issuing oil and gas leases on what appeared to be state-owned lands. The Commission leased 600 acres to respondent Saga Petroleum U.S. Inc.

Petitioners, holders of record title, filed a complaint in Chancery Court to quiet title to the 600 contested acres and an additional 1,800 acres in the area. The Chancery Court decided that the public trust included lands underlying all tidally influenced waters. Even under this test, only 140.863 acres of the land belonged to the State of Mississippi. On appeal, the Supreme Court of Mississippi reduced Mississippi's claim by another 98 acres to account for land underlying two artificial lakes. The land now claimed by Mississippi consists of slightly more than 42 acres underlying the north branch of Bayou LaCroix and 11 small drainage streams.

These waterways are not used for commercial navigation. None of the drainage streams is more than a mile long; all are nameless. Mississippi is not pressing its claim for the sake of facilitating commerce, or even to protect the public's interest in fishing or other traditional uses of the public trust. Instead, it is leasing the land to a private party for exploitation of underlying minerals. Mississippi's novel undertaking has caused it to press for a radical expansion of the historical limits of the public trust.

The Court's decision today could dispossess thousands of blameless record owners and leaseholders of land that they and their predecessors in interest reasonably believed was lawfully theirs. The Court concludes that a decision favoring petitioners would be even more disruptive, because titles may have been adjudicated on the assumption that a tidal test defines the public trust. Ante at 484 U. S. 483. There is no way to ascertain, as a general matter, what assumptions about the public trust underlie existing property titles. What evidence there is suggests that the majority's rule is the one that will upset settled expectations. For example, the State of New Jersey has decided to apply the Court's test. It now claims for its public trust all land underlying nonnavigable tidal waters, and all land that has been under tidal waters at any time since the American Revolution.

Due to this attempted expansion of the [public trust] doctrine, hundreds of properties in New Jersey have been taken and used for state purposes without compensating the record owners or lien holders; prior homeowners of many years are being threatened with loss of title; prior grants and state deeds are being ignored; properties are being arbitrarily claimed and conveyed by the State to persons other than the record owners; and hundreds of cases remain pending and untried before the state courts awaiting processing with the National Resource Council.

Porro & Teleky, Marshland Title Dilemma: A Tidal Phenomenon, 3 Seton Hall L.Rev. 323, 325-326 (1972) (footnotes omitted). See also Brief for the City of Elizabeth, New Jersey, et al. as Amici Curiae 17-20 (confirming that these problems have not abated). The Court's decision today endorses and encourages such action in other States.

Although there is no way to predict exactly how much land will be affected by the Court's decision, the magnitude of the problem is suggested by the fact that more than 9 million acres have been classified as fresh or saline coastal wetlands. S. Shaw & C. Fredine, Wetlands of the United States, United States Department of the Interior, Fish & Wildlife Service, Circular 39, p. 15 (1956). The Federal Government conveyed these lands to the States, which have conveyed many of them to individuals. To the extent that the conveyances to private parties purported to include public trust lands, the States may strike them down, if state law permits. Illinois Central R. Co. v. Illinois, 146 U.S. at 146 U. S. 452 -454; see Coastal Petroleum Co. v. American Cyanamid Co., 492 So.2d 339, 342-343 (Fla.1986), cert. denied sub nom. Mobil Oil Corp. v. Board of Trustees of Internal Improvement Trust Fund of Fla., 479 U.S. 1065 (1987); Brief for American Land Title Association as Amicus Curiae 2-3. The Court's broad definition of public trust lands will increase the amount of land that is vulnerable to such challenges.

The Court's suggestion, ante at 484 U. S. 484, that state law might honor the equitable considerations that support individual claims to public trust lands is not persuasive. Certainly the Mississippi Supreme Court's decision in this case attached little weight to petitioners' equitable claims. Although Mississippi collected taxes on the land and made no mention of its claim for over 150 years, the Mississippi Supreme Court held that Mississippi was not estopped from dispossessing petitioners. Cinque Bambini Partnership v. State, 491 So.2d 508, 521 (1986). The stakes are high when the land lies over valuable oil, gas, or mineral deposits.

The Court's decision departs from our precedents, and I fear that it may permit grave injustice to be done to innocent property holders in coastal States. I dissent.

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