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Ocean and Coastal Law
University of North Carolina School of Law
Eagle, Josh

Coastal Law Outline

Josh Eagle 2012

Class and outside participation factored into grade.

Context of coastal law:

Physical context: instability

Upland: private

Submerged: Public

Chapter 1. The Coastal Law Context

1. The Geology of Instability

2. Border Ecology




Large scale public purchases

3. Natural Disasters and Vulnerability

4. Water-Dependant and Downstream of Everywhere

B. Conflicts Among Private and Public Interests

1. The Roots of Conflict

Chapter 2. The Legal Geography of the Coast

A. Legal Geography and the Common Law

The Public Trust Doctrine:

Scope: Public trust lands are lands beneath navigable waters. However, the term navigable has no plain meaning in law and can only be defined in the statutory or common law context.

The North Carolina Supreme Court found that if water is navigable for pleasure boating, it is navigable at law even if the water has never been used for trade or commerce. Gwathmey.

1. Tidal Influence and Navigability

Illinois Central Railroad v. Illinois

Issue: Does the State of Illinois, as sovereign, hold legal title to the submerged lands of Lake Michigan?

Holding: Yes.

Reasons: (1) Commerce


Phillips Petroleum Co. v. Mississippi

Record titleholders of Mississippi land underlying bayou and number of streams brought action against state to remove clouds from title resulting from oil leases granted by state. The Chancery Court, Hancock County, William L. Stewart, Chancellor, set geographical contours of public trust over tidelands, and record titleholders appealed. The Mississippi Supreme Court affirmed in part and reversed in part and remanded. Record titleholders petitioned for writ of certiorari. The Supreme Court, Justice White, held that: (1) Mississippi, upon entering Union, took title to lands lying under waters that were influenced by tide running in Gulf of Mexico but were not navigable-in-fact, and (2) decision passing title to state was not inequitable and would not upset legitimate property expectations.

Equal Footing Doctrine: see below.

Gwathmey v. State of North Carolina

Owners of marshlands filed separate actions against state, seeking determination of quality of their titles to marshlands and other relief after state purported to reserve public trust rights in marshlands. The Supreme Court held that: (1) lunar tides test under English common law did not determine navigability for purposes of determining whether land under water was subject to public trust doctrine, abrogating Hatfield , 29 N.C. 139, Parmele , 235 N.C. 689, 71 S.E.2d 474; (2) if body of water in its natural condition could be navigated by watercraft, then it was navigable in fact and in law, and lands lying beneath it were thus subject to public trust doctrine; (3) no statute ever expressly granted State Board of Education (SBE) fee simple title to marshlands free of all public trust rights and, thus, SBE’s sales of marshlands to owners’ predecessors could not convey title free of public trust rights to extent that marshlands were covered by navigable waters; and (4) statute expressly reserving public trust rights in marshlands did not impose any public trust rights on marshlands not covered by navigable waters.

In North Carolina, the general rule is that waters that are navigable-in-fact in their natural condition are open to public use.

Which waters are public trust waters?

Those waters that are navigable in law in that state.

Navigable waters = public waters

Navigable in law = navigable for the purpose of the public trust doctrine.

Navigable in fact = some physical characteristic that allows to move something on the waters surface. For example- toothpick, pleasure craft, commercial.

What about the fringes of bays? Physically part of navigable in fact waters.

2. Locating the Exact Boundary Separating Uplands from Public Waterways: More on the Legal Coastline

Just as states have some freedom in defining public waterways, they also have some discretion in locating the legal coastline that separates those waterways from private uplands.

There are two categories of rules states use to locate this line. Most states set the legal coastline at the high-water mark. Some of these states have statues that specifically define “high water,” while others have left the chore to the courts (see cases below). Seven states extend the area capable of ordinary private ownership to the low-water mark.

What are the advantages and disadvantages of alternative rules?

Advantages of setting the mark at the high water mark:

Walkable beach, some times.

Where does public waterways end and private property begin? Low water mark means no walkable beach. This historically provided an incentive for upland owners to construct facilities to connect to navigable water.

Next two cases are examples of how states resolve the question.

In the Matter of Ashford

Action to register title to land. The Land Court, City and County of Honolulu, Samuel P. King, J., made findings and landowners appealed. The Supreme Court, Richardson, C. J., held that location of boundary described as ‘ma ke kai’ was along upper reaches of wash of waves, usually evidenced by edge of vegetation or by line of debris left by wash of waves.

Mean high tide line- average tides over 18.6 years. Not constantly adjusting, do once every 18.6 years.

State argues that it goes all the way to the end of the “beach.”

Custom argument here.

State v. Ibbison

Defendants were convicted in District Court of criminal trespass in violation of municipal code which prohibits person from knowingly entering upon land of another without having been requested or invited to do so by owner or occupant of land, and they appealed. The Supreme Court held that: (1) for purposes of constitutional article governing fishery rights and shore privileges, mean-high-tide line is landward boundary of shore; (2) dismissals would be affirmed on due process grounds; and (3) any municipality that intends to impose criminal penalties for trespass on waterfront property above mean-high-tide line must prove beyond reasonable doubt that defendant knew location of boundary line and intentionally trespassed across it.

Mean-high-tide line

3. The Seaward End of Public Waterways

United States v. California

How far seaward do California’s rights extend?

In response to the Court’s decision United States v. California, Congress quickly passed the Submerged Lands Act of 1953. The Act granted states title to offshore lands, as well as the natural resources on or within those lands, located within the states’ historical boundaries. While the federal government relinquished its claims to those lands and resources, it retained the right to regulate in furtherance of national defense, international affairs, navigation, and commerce.

Seaward end of state jurisdiction.


Public trust not consistent with open ocean.

Ocean Law

Three Sources of Ocean law:

(1) Treaties

(2) Customary law

(3) Legal scholars

Submerged Lands Act of 1953

State waters = 3 miles, except Texas and Florida.

International law of the sea (Note 1, p.111)

UNCLOS divides the sea into two components, the water column and the sea floor. With respect ot the water column and the se

s, and with the Indian Tribes.”

(2) Congress can act in order to protect a form of property interest it holds in those waterways: the federal “navigational servitude.”

While the government qua regulator may have to pay when its rules or actions impact private property interests, the government qua holder of the servitudes does not.

Kaiser Aetna v. United States

United States brought action against owners of marina seeking to resolve dispute as to whether owners were required to obtain authorization from Corps of Engineers before making future improvements in the marina and whether owners could deny public access to marina because, as result of improvements, marina had become a navigable water of United States. On certiorari, the Court held that although marina fell within definition of “navigable waters of the United States” when owners dredged it and then connected it to a bay in the Pacific Ocean, so as to be subject to regulation by Corps of Engineers, acting under authority delegated it by Congress in Rivers and Harbors Appropriation Act, Government could not require owners to make marina open to the public without compensating the owners.

The Navigational Servitude:

“Navigational servitude” is an expression of notion that determination whether a taking has occurred must take into consideration important public interest in flow of interstate waters that in their natural condition are in fact capable of supporting navigation.

When government . . . under the navigational servitude it doesn’t have to compensate.

Relationship between state public trust doctrines and the navigational servitude:

While both ensure public access to public waterways, they differ in two ways:

(1) The servitude traditionally protects only the public use of navigation, while the public trust doctrine protects other uses, such as fishing.

(2) At least according to the majority in Kaiser Aetna, the definition of public waterways is narrower in the context of the servitude, and generally speaking is “navigable-in-fact.”

Should the government be protected form takings claims by the navigational servitude when it acts to promote conservation in these tidelands?

2. … And Non-Navigable Waterways and Uplands

The power to regulate the use of uplands comes primarily from the Commerce Clause, although other sources of authority such as the Property Clause and the treaty power can also be used in the appropriate context.

Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers

Consortium of municipalities sued the United States Army Corps of Engineers, challenging Corps’ exercise of jurisdiction over abandoned sand and gravel pit on which consortium planned to develop disposal site for nonhazardous solid waste and denial of a Clean Water Act (CWA) permit for that purpose. The Court, held that Corps’ rule extending definition of “navigable waters” under CWA to include intrastate waters used as habitat by migratory birds exceeded authority granted to Corps under CWA.