Public Trust Doctrine Question

[Brad L]

I am hoping to get some better understanding of the rights bestowed upon the State, municipality and private owner on land related to salt marshes and tidelands. The understanding I have of my situation is:
-In 1870 the Board of Tide Land Commissioners prepared a map of salt marshes and tide lands
Prior to 1872 portions of the above referenced map was sold to private individuals
-In 1915 Kundson v Kearney held the grants were in fee simple and not subject to the right of the public
-In 1913 & 1925 the State Lands Grants "all the right, title and interest of the State of California, ... below the line of mean high tide" to the municipality. These grants include property sold to private individuals.
-The marshes and tide lands shown on the 1870 map and as stated in the State Grants were to be used to promote navigation which appears to be the Public Trust exception in People vs. California Fish Co. (1913)
-In 1980, City of Berkeley vs Superior Court, confirms conveyance under the 1870 that are subject to the public trust unless they have been filled.

From the information I have reviewed, I came the following conclusions:
-The State Land Grant in 1913 & 1925 to the municipality should be viewed as a quitclaim and could not convey the public trust, nor any right that was previously conveyed.
-the private individuals still own the underlying fee (naked fee), but cannot fill nor improve the land as it is subject completely to the public trust
-Jurisdiction over the navigability of the public trust falls to the Army Corps of Engineers.

Any additional insight is greatly appreciated.

[Ian Wilson]

Sits back, waits for Evan Page to find this. Lessons to be learned, here. Evan should be by soon. If you haven't already read his posts, you're in for a treat. We may not always agree on everything, but I almost always learn something from Evan.

And...

Cue Evan...

[LS_8750]

Where's the popcorn.

[E_Page]

Ian, that's just about the highest praise I can imagine as a professional surveyor. You honor me, and I'm just about as humbled as I am able to be (of course that's a relative thing, so some may not be able to recognize humility in me ;-)

Brad,

You seem to have most of the points in order with your conclusions except for the jurisdictional part. Actually, the jurisdictional part can be pretty convoluted with a lot of overlapping authority among agencies.

First and most basic, the Public Trust stems from the sovereign ownership by the State in the beds of navigable waterways and tidelands, which it assumed upon statehood in September, 1850. Quite a bit of tidelands were sold by the State up through about 1870 or so, but essentially stopped with a comprehensive bill in 1872 which served to correct title to improperly conveyed tidelands and swamp & overflowed lands, and pretty much halt further tideland sales.

Being aware of the BTLC maps and conveyances, you are aware that the State had sold many hundreds of acres of tidelands (and originally planned to sell a lot more) according to the BTLC maps, which were subdivision maps of tideland parcels, complete with Blocks, lots, and public ways (for canal or road, depending upon which was more appropriate to the specific location). You also have the landmark case (Berkeley v Superior Court) regarding existence of the Public Trust over conveyed tidelands. The bottom line with that is that the private ownership of tidelands isn't a heck of a lot different than owning the fee to the ground underneath a highway adjacent to your parcel. You get to pay taxes on it, but any other use is very limited to those things which are considered to be compatible with the purpose of the public easement over the fee-owned lands.

At the time that the State was conveying tidelands, there wasn't a lot of guidance from the courts and there was some confusion as to the distinct nature (both physical and title) of tidelands from that of swamp & overflowed lands. Many of the earliest tideland patents from the State were in the form of S&O patents, but have since been corrected by legislation. The State should have been aware of the sovereign nature of the title which was defined in Martin v. Waddell, 41 US 367 (1842), but may not have fully understood the State's responsibilities and authority relative to such lands until sometime later as those ideas continued to be developed or recognized in case law.

The ability of the State to dispose of, or sell sovereign lands and the implications of such sales to the Public Trust weren't really cleared up until later in the 1870s with Barney v. Keokuk, 94 US 324 (1876), and then again in the 1890s with two cases that made it quite clear. With Illinois Central Railroad v. Illinois, 146 US 387 (1892), the US Supreme Court explained that a State was not capable of selling or disposing of sovereign lands in a manner which alienated the Public Trust from those lands. And in Shively v. Bowlby, 152 US 1 (1894), they clarified that in some instances, the State could convey the fee title to sovereign lands, but only in such a way that the public's right and ability to use those lands was not impaired.

Getting back to the specifics of your post, salt marsh is similar in appearance and physical character to many swamp & overflowed lands except that S&O lands are, by definition, above the line of ordinary high water (or the Mean High Water Line along tidally influenced waterways), and salt marsh, by definition lies below the MHTL, making them tidelands.

The case that speaks to the sovereign ownership of tidelands regardless of their susceptibility to actual navigation is a relatively recent one, Phillips Petroleum Co. v. Mississippi, 484 US 469 (1988). In that case, SCOTUS stated that the bed of tidally influenced waterways and their tidelands are, for title purposes, considered to be navigable whether or not it is actually possible to navigate them. Hence, they are fully subject to the Public Trust as stated in Berkeley.

In the Berkeley decision, Stanley Mosk (Ch. Justice Supreme Court of CA) writes of Knudson v. Kearney (and of Alameda Conservation Association v. City of Alameda): "We conclude that these decisions were erroneous and must be overturned, but that tracts of land granted by the board that have been improved or filled are, to the degree hereinafter described, free of the public trust." (emphasis, mine)

Among CA's justices, Mosk wrote many of the clearest and most soundly founded decisions on boundary and land use cases.

Where the proposed use is for the purposes of promoting navigation (or other PT uses), it's not really an exception, but there is a finding that such proposed use is compatible with the Public Trust.

Although navigation is one of the uses under the Public Trust, it's not the only one. Traditionally, the PT uses were 1) navigation, 2) travel & commerce, and 3) fishing. Case law, particularly through the latter half of the 20th century have expanded the definition of the public's or State's right of use under the Public Trust.

The COE has jurisdiction where the impact on actual navigability is concerned. The COE and various other agencies have jurisdiction where environmental matters are concerned if a proposed activity on the land in question would directly or indirectly affect waters or lands which are more directly under the jurisdiction of those agencies. The COE was reigned in to some extent by SCOTUS in the (IIRC) Rasmussen decision a few years back after several years of presuming to expand their areas of authority through regulation having no basis in authority granted by statute.

Where the impact on the full scope of Public Trust uses is concerned, the State has jurisdiction over that by virtue of their status as the sovereign entity when the tidelands were granted. The State Lands Commission is the agency authorized by statute to administer the laws pertaining to sovereign lands (and certain other specific lands) and the Public Trust uses & impacts associated with the sovereign nature of the land. You can contact me directly and I can direct you to the appropriate person within the CSLC to begin inquiries regarding the use of such lands.

If your client has a proposed use in mind, I suggest starting with the State Lands Commission because if there isn't a finding by the CSLC that the proposed use is compatible with the Public Trust, the project won't be able to proceed with any other agency beyond the idea (or wishful thinking) stage. If the use is not strictly compatible with the Public Trust, but not necessarily wholly incompatible, in some cases, land exchanges with the State for other lands which are not sovereign but would be beneficial to enhance the ability to engage in Public Trust uses on nearby sovereign lands can be negotiated. As to the specific circumstances by which that avenue would be available, you would need to start with the appropriate Land Manager at the CSLC. That person would either be able to answer those questions better, or coordinate among boundary and legal staff to bring the answers together for you.

[LA Stevens]

Thanks Evan for the brief history lesson!

[Ian Wilson]

I rest my case.

Thanks, Evan. And thanks for proving my point!

Ian

[LS_8750]

Is that all you got?

[LS_8750]

Mr. Page, would you consider doing a "working man's" synopsis of Mr. Flushman's "Water Boundaries"?

Somewhere in there is a great piece of work and value to the practicing land surveyor.

[Brad L]

Thanks for your input Evan. We are proposing to install additional buoys around our perimeter and several are where a private owners have naked fee. I wanted additional input before explaining to our planning staff the proper channels to accomplish the tasks. So it sounds like we need to touch base with the Corps to ensure we are not inhibiting navigation, get an "encroachment permit" from State Lands and pay the fee owner a rent to anchor on their land.

We are composed primarily of S&O, TL and State Grants, so even though there is not much changing with our boundary, I try to keep informed.

[E_Page]

Brad,

Not really a permit from State Lands so much as a determination that the use is one that's compatible to the Public Trust and doesn't unduly impair other PT uses. Assuming you get a favorable finding, in this circumstance, we will typically issue a letter of non-objection. The other agencies that have some manner of jurisdiction will usually want to have a copy of the letter before providing their approval.

If the bed were still State-owned sovereign land, then there would also be a lease, but you have the gist of it. Buoys for navigation or mooring are typically considered an incidental use to navigation, but the specific purpose and placement may affect the answer you get. When you contact State Lands, ask for the Land Manager for the Bay Region.


Clark,

I like Flushman's book quite a lot. But his writing style is different from that of most authors of technical or legal textbooks, so I can understand where that style wouldn't suit some readers. I have something that may be a start to what you are asking about. Check your email.