ArtIV.S3.C1.5 Equal Footing and Property Rights in Submerged Lands

Article IV, Section 3, Clause 1:

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The equal footing doctrine has great significance for the property rights to land under navigable waters1 and tidally influenced waters.2 In Pollard’s Lessee v. Hagan, the Supreme Court held that the equal footing doctrine requires that the title to lands beneath navigable waters generally passes to a new state upon its admission.3 The principle of this case supplies the rule of decision for many property disputes decided by the Court.4 The Court has summarized title consequences of the equal footing doctrine as follows:

Upon statehood, the State gains title within its borders to the beds of waters then navigable (or tidally influenced). It may allocate and govern those lands according to state law subject only to the paramount power of the United States to control such waters for purposes of navigation in interstate and foreign commerce. The United States retains any title vested in it before statehood to any land beneath waters not then navigable (and not tidally influenced), to be transferred or licensed if and as it chooses.5

Beginning with the 1894 case Shively v. Bowlby, the Court has recognized the authority of the United States, while territorial status continues, to transfer title to land below navigable waters when necessary for “public purposes appropriate to the objects for which the United States hold the territory.” 6 Thus, despite the rule of Pollard’s Lessee, the United States may “defeat a prospective State’s title to land under navigable waters by a prestatehood conveyance of the land to a private party for a public purpose appropriate to the Territory.” 7 The United States may also defeat a prospective state’s title through a clear intention to reserve submerged lands to itself as part of a federal reservation, such as a wildlife refuge, or an Indian reservation.8

That said, because control over property underlying navigable waters is so closely tied to state sovereignty,9 states enjoy a strong “presumption of title” to submerged lands beneath inland navigable waters within their boundaries.10 To determine whether that presumption is overcome, courts apply a two-step test: (1) “whether the United States clearly intended to include submerged lands within the reservation” ; and (2) “whether the United States expressed its intent to retain federal title to [the] submerged lands.” 11 Intent by the United States to defeat state title must be “'definitely declared or otherwise made very plain.’” 12

In 1947, the Court in United States v. California refused to extend Pollard’s Lessee’s rule for land under inland navigable waters to submerged lands in the three-mile marginal belt under the ocean along a state’s coast.13 Whether the states or the federal government had rights to these lands “became of great potential importance at the beginning of [the twentieth] century when oil was discovered there.” 14 Examining the historical evidence, the Court held that, unlike inland navigable waters, the thirteen original colonies did not acquire ownership of the land under their marginal seas upon independence and that therefore “national rights are paramount.” 15

Indeed, the Court applied the Pollard’s Lessee principle in reverse for lands under marginal seas in United States v. Texas.16 Although Texas was an independent republic with conceded sovereignty over the submerged lands of its marginal sea before its annexation to the United States, Texas was held to have implicitly surrendered its sovereignty over these submerged lands upon admission.17 Congress responded to the California and Texas decisions in 1953 through the Submerged Lands Act18 and Outer Continental Shelf Lands Act.19 These laws divided jurisdiction over the continental shelf, with Congress generally ceding to the coastal states title to submerged lands at a specified distance from their coasts (generally three geographical miles).20 For its part, the United States confirmed its exclusive control over the outer continental shelf, meaning all submerged lands beyond those reserved to states and up the edge of the United States’ jurisdiction and control.21 The result of these laws is that, despite the Court’s decision in California, state claims to submerged lands beneath waters within three nautical miles of their coasts are analyzed under the Pollard’s Lessee framework.22

“Navigable waters,” for equal footing purposes, are those waters used, or susceptible to use, for trade and travel at the time of statehood. PPL Montana, LLC v. Montana, 565 U.S. 576, 590–92 (2012). Navigability of rivers is determined on a segment-by-segment basis, and lands under portions of a stream that were impassable at statehood were not conveyed by force of the doctrine. Id. at 594–60; see also United States v. Utah, 283 U.S. 64 (1931). back
See Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 476 (1988); Knight v. U.S. Land Ass’n, 142 U.S. 161, 183 (1891). back
44 U.S. (3 How.) 212, 223 (1845); see also Martin v. Waddell, 41 U.S. (16 Pet.) 367, 410 (1842). back
See, e.g., PPL Montana, LLC, 565 U.S. 576; Phillips Petroleum Co., 484 U.S. 469; Utah Div. of State Lands v. United States, 482 U.S. 193 (1987); Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363 (1977); Texas v. Louisiana, 410 U.S. 702 (1973); Bonelli Cattle Co. v. Arizona, 414 U.S. 313 (1973), overruled by Corvallis Sand & Gravel Co., 429 U.S. 363 (1977); Utah v. United States, 403 U.S. 9 (1971); Illinois Cent. R.R. v. Illinois, 146 U.S. 387 (1892); Hallett v. Beebe, 54 U.S. (13 How.) 25 (1851); Pollard v. Kibbe, 50 U.S. (9 How.) 471 (1850). back
PPL Montana LLC, 565 U.S. at 591 (citations and quotations omitted). back
Shively v. Bowlby, 152 U.S. 1, 48 (1894); see also Joy v. St. Louis, 201 U.S. 332 (1906). Shively explained that the United States might make such transfers “whenever it becomes necessary to perform international obligations, or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several states” or “in case of some international duty or public exigency.” 152 U.S. at 48, 50. back
Utah Div. of State Lands, 482 U.S. at 197; Choctaw Nation v. Oklahoma, 397 U.S. 620, 634–35 (1970). back
See, e.g., Alaska v. United States, 545 U.S. 75, 100 (2005) (United States reserved title to submerged lands under Glacier Bay); Idaho v. United States, 533 U.S. 262, 280–81 (2001) (United States reserved title to submerged lands under Lake Coeur d’Alene, in trust for the Coeur d’Alene Tribe); United States v. Alaska, 521 U.S. 1, 62 (1997) (United States reserved title to submerged lands beneath tidally influenced waters within the Arctic National Wildlife Refuge). back
Montana v. United States, 450 U.S. 544, 552 (1981). back
Alaska, 545 U.S. at 78–79. back
Id. at 100. back
Alaska, 521 U.S. at 34 (quoting United States v. Holt State Bank, 270 U.S. 49, 55 (1926)). back
United States v. California, 332 U.S. 19, 38 (1947); accord United States v. Louisiana, 339 U.S. 699 (1950). back
California, 332 U.S. at 38. back
Id. at 31, 36. back
339 U.S. 707, 716 (1950); see also United States v. Maine, 420 U.S. 515 (1975) (reaffirming the California, Louisiana, and Texas cases). back
Texas, 339 U.S. at 718. back
67 Stat. 29 (1953) (codified as amended at 43 U.S.C. §§ 1301–1315). The Court upheld the constitutionality of the Submerged Lands Act in Alabama v. Texas, 347 U.S. 272 (1954). back
67 Stat. 462 (1953) (codified as amended at 43 U.S.C. §§ 1331–1356b). back
43 U.S.C. §§ 1301(a)(1), 1311; see generally United States v. Alaska, 521 U.S. 1, 5–6 (1997); United States v. Louisiana, 363 U.S. 1, 6–10 (1960). back
43 U.S.C. §§ 1331–32; see generally Parker Drilling Mgmt. Servs. v. Newton, No. 18-389, slip op. at 3–4 (U.S. June 10, 2019). back
See Alaska v. United States, 545 U.S. 75, 78–79 (2005). back