Navigability

Question 1

Navigability for Title

Answer 1

Used to determine who took bed at time of statehood.
State v. private party (how you know it’s navigability for title case).
The tension is between if state or upland owner (federal government) owns land.
Determined using the Daniel Ball Test.
See PPL v. Montana.

Question 2

Daniel Ball Test

Answer 2

To determine navigability in fact, test asks whether waters were…
1. Used or susceptible of being used
2. In their ordinary condition
3. As a highway for commerce over which trade and travel are or may be conducted
4. In the customary modes of trade and travel on water
5. At time of statehood
6. Segment by segment (PPL)

Question 3

Federal Navigation Servitude

Answer 3

No matter who holds titled to submerged lands, federal government retains easement for navigation.
To safeguard public’s interest in navigable waters, navigational servitude allows federal government to displace or destroy state-recognized property rights without providing compensation
E.g., state law commonly gives riparian landowner right to “wharf out” to gain access to deeper water to dock boat. But if waterway is navigable in fact, and U.S. deems wharf an obstruction to navigation, it can require its removal and not pay compensation.
Can be defense to property takings claim (not water rights takings claim)
See Willow River Power

Question 4

Differences in Test for Navigability in Title and for Servitude

Answer 4

Timing
1. Navigability for title measured at precise moment in time—statehood
2. Navigability for purposes of navigation servitude measured by river’s condition at time the government seeks to exercise the servitude
Extent
1. Servitude may extend in some instances beyond the navigable watercourse itself to non-navigable tributaries
a. Diminishes compensation that an owner of fast lands adjacent to navigable waters may recover when government occupies those lands to facilitate navigability

Question 5

Federal Navigability for Regulation

Answer 5

Commerce clause justification for exercise of federal congressional power.
e.g., CWA and FPA; to regulate something in waters of U.S.
Not federal government as property owner, but as regulator (e.g., EPA)
Continuous surface connection allows federal government authority over non-navigable water (e.g., farmer can own bed of tiny non-navigable creek but still be subject to CWA).

Question 6

How do you determine if a place is subject to the public trust doctrine?

Answer 6

Determine what waters were navigable in fact at the time of statehood.
Daniel Ball Test