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Opinion of the Court

§ 7 (Supp. 1996); Idaho Code $$ 58–101, 58–104(9) (1994 and Supp. 1996).

Not only would the relief block all attempts by these officials to exercise jurisdiction over a substantial portion of land but also would divest the State of its sovereign control over submerged lands, lands with a unique status in the law and infused with a public trust the State itself is bound to respect. As we stressed in Utah Div. of State Lands v. United States, 482 U. S. 193, 195–198 (1987), lands underlying navigable waters have historically been considered “sovereign lands.” State ownership of them has been “considered an essential attribute of sovereignty.Id., at 195. The Court from an early date has acknowledged that the people of each of the Thirteen Colonies at the time of independence “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 to the general government.” Martin v. Lessee of Waddell, 16 Pet. 367, 410 (1842). Then, in Lessee of Pollard v. Hagan, 3 How. 212 (1845), the Court concluded that States entering the Union after 1789 did so on an “equal footing” with the original States and so have similar ownership over these “sovereign lands." Id., at 228–229. In consequence of this rule, a State's title to these sovereign lands arises from the equal footing doctrine and is "conferred not by Congress but by the Constitution itself.” Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U. S. 363, 374 (1977). The importance of these lands to state sovereignty explains our longstanding commitment to the principle that the United States is presumed to have held navigable waters in acquired territory for the ultimate benefit of future States and "that disposals by the United States during the territorial period are not lightly to be inferred, and should not be regarded as intended unless the intention was definitely declared or

Opinion of the Court

otherwise made very plain.” United States v. Holt State Bank, 270 U. S. 49, 55 (1926).

The principle which underlies the equal footing doctrine and the strong presumption of state ownership is that navigable waters uniquely implicate sovereign interests. The principle arises from ancient doctrines. See, e. g., Institutes of Justinian, Lib. II, Tit. 1, $ 2 (T. Cooper transl. 2d ed. 1841) (“Rivers and ports are public; hence the right of fishing in a port, or in rivers are in common”). The special treatment of navigable waters in English law was recognized in Bracton's time. He stated that “[a]ll rivers and ports are public, so that the right to fish therein is common to all persons. The use of river banks, as of the river itself, is also public.” 2 H. Bracton, De Legibus et Consuetudinibus Angliae 40 (S. Thorne transl. 1968). The Magna Carta provided that the Crown would remove "all fish-weirs ... from the Thames and the Medway and throughout all England, except on the sea coast.” M. Evans & R. Jack, Sources of English Legal and Constitutional History 53 (1984); see also Waddell, supra, at 410-413 (tracing tidelands trusteeship back to Magna Carta).

The Court in Shively v. Bowlby, 152 U. S. 1, 13 (1894), summarizing English common law, stated:

“In England, from the time of Lord Hale, it has been treated as settled that the title in the soil of the sea, or of arms of the sea, below ordinary high water mark, is in the King; except so far as an individual or a corporation has acquired rights in it by express grant, or by prescription or usage ... and that this title, jus privatum, whether in the King or in a subject, is held subject to the public right, jus publicum, of navigation and fishing.”

Not surprisingly, American law adopted as its own much of the English law respecting navigable waters, including the principle that submerged lands are held for a public purpose.

Opinion of the Court

See Arnold v. Mundy, 6 N. J. L. 1 (1821). A prominent example is Illinois Central R. Co. v. Illinois, 146 U. S. 387 (1892), where the Court held that the Illinois Legislature did not have the authority to vest the State's right and title to a portion of the navigable waters of Lake Michigan in a private party even though a proviso in the grant declared that it did not authorize obstructions to the harbor, impairment of the public right of navigation, or exemption of the private party from any act regulating rates of wharfage and dockage to be charged in the harbor. An attempted transfer was beyond the authority of the legislature since it amounted to abdication of its obligation to regulate, improve, and secure submerged lands for the benefit of every individual. Id., at 455–460. While Illinois Central was “necessarily a statement of Illinois law,” Appleby v. City of New York, 271 U. S. 364, 395 (1926), it invoked the principle in American law recognizing the weighty public interests in submerged lands.

American law, in some ways, enhanced and extended the public aspects of submerged lands. English law made a distinction between waterways subject to the ebb and flow of the tide and large enough to accommodate boats (royal rivers) and nontidal waterways (public highways). With respect to the royal rivers, the King was presumed to hold title to the riverbed and soil while the public retained the right of passage and the right to fish. With public highways, as the name suggests, the public retained the right of passage, but title was typically held by a private party. See J. Angell, A Treatise on The Common Law in relation to Water-Courses 14-18 (1824). The riparian proprietor was presumed to hold title to the stream to the center thread of the waters (usque ad filum aquae), which accorded him the exclusive right of fishery in the stream and entitled him to compensation for any impairment of his right to the enjoyment of his property caused by construction. The State's obligation to pay compensation could result in substantial liability. Shrunk v. Schuylkill, 14 Serg. & Rawle 71, 80 (Pa.

Opinion of the Court

1826). State courts, however, early on in Pennsylvania, South Carolina, Alabama, and North Carolina rejected the distinction and concluded the State presumptively held title regardless of whether the waterway was subject to the ebb and flow of the tide. See, e.g., Carson v. Blazer, 2 Binn. 475 (Pa. 1810); Cates v. Wadlington, 1 McCord 580 (S. C. 1822); Bullock v. Wilson, 2 Port. 436 (Ala. 1835); Collins v. Benbury, 3 Iredell 277 (N. C. 1842); but see Hooker v. Cummings, 20 Johns. 90 (N. Y. 1822). And this Court in describing the concept of sovereign lands rejected the requirement that navigable waters need be affected by the tides. Barney v. Keokuk, 94 U. S. 324, 337–338 (1877); cf. Propeller Genesee Chief v. Fitzhugh, 12 How. 443 (1852).

American law, moreover, did not recognize the sovereign's rights of private property (jus privatum) that existed in England, apart from the public's rights to this land (jus publicum). In England, for instance, the Crown had the exclusive right to hunt the "grand fishes,” e. g., whales and sturgeons, of the sea. J. Angell, A Treatise on the Right of Property in Tide Waters and in the Soil and Shores Thereof 18–19 (1847). There was a particular aversion to recognizing in States the Crown's jus privatum right to seize private structures on shores and marshes reclaimed from tidewaters. See J. Gould, A Treatise on the Law of Waters including Riparian Rights, and Public And Private Rights In Waters Tidal And Inland $ 32 (2d ed. 1891). All these developments in American law are a natural outgrowth of the perceived public character of submerged lands, a perception which underlies and informs the principle that these lands are tied in a unique way to sovereignty.

Idaho views its interest in the submerged lands in similar terms. Idaho law provides: “Water being essential to the industrial prosperity of the state, and all agricultural development ... its control shall be in the state, which, in providing for its use, shall equally guard all the various interests involved. All the waters of the state, when flowing in their

Opinion of the Court

natural channels ... are declared to be the property of the state.” Idaho Code $ 42–101 (1990). Title to these public waters is held by the State of Idaho in its sovereign capacity for the purpose of ensuring that it is used for the public benefit. Poole v. Olaveson, 82 Idaho 496, 503, 356 P. 2d 61, 65 (1960). There are specific statutory provisions concerning Lake Coeur d'Alene. The Lake is held in trust by the Governor for the people of the State of Idaho. The “preservation of [Lake Coeur d'Alene) for scenic beauty, health, recreation, transportation and commercial purposes [being] necessary and desirable for all the inhabitants of the state is hereby declared to be a beneficial use of such water.” Idaho Code $ 67–4304 (1989). The “lands belonging to the state of Idaho between the ordinary high and low water mark at [Lake Coeur d'Alene) ... are hereby declared to be devoted to a public use in connection with the preservation of said lak[e] in [its) present condition as a health resort and recreation place for the inhabitants of the state.” Idaho Code $67–4305 (Supp. 1996).

Our recitation of the ties between the submerged lands and the State's own sovereignty, and of the severance and diminishment of state sovereignty were the declaratory and injunctive relief to be granted, is not in derogation of the Tribe's own claim. As the Tribe views the case, the lands are just as necessary, perhaps even more so, to its own dignity and ancient right. The question before us is not the merit of either party's claim, however, but the relation between the sovereign lands at issue and the immunity the State asserts.

It is apparent, then, that if the Tribe were to prevail, Idaho's sovereign interest in its lands and waters would be affected in a degree fully as intrusive as almost any conceivable retroactive levy upon funds in its Treasury. Under these particular and special circumstances, we find the Young exception inapplicable. The dignity and status of its statehood allow Idaho to rely on its Eleventh Amendment

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