By Hamza Karoumia & Erica Peralta
Broadly speaking the equal footing doctrine stipulates that all states admitted to the Union under the Constitution in 1789 enter on “equal footing” with the 13 states already in the Union. This doctrine has implications for natural resources law, specifically, state’s title interests in their public lands. Under the Equal Footing Doctrine States’ have title to land that was navigable at the time the State entered the Union. This established equality between the states regarding their political power and state sovereignty. Several landmark cases illustrate this point.
In Pollard v. Hagan, the Supreme Court held that the shores of and land beneath navigable waters were reserved for that state. The proper test to determine navigability for Equal Footing purposes is the Daniel Ball test. The test necessitates making a factual determination about whether a source of water was navigable at the time of a state’s unionization. For example, in Ball the issue was whether a federal law mandating a permit to transport merchandise or passengers extended to wholly state activity. The court determined that it was navigable because the water way’s capacity was customarily used as a “highway for commerce” and “travel”, implicating the commerce clause.
Hagan outlined the limitations on Federal power on state lands. This case was decided during a period of growth for state rights advocacy which may have had a slight influence on the outcome of the case. The issue was whether Alabama had title to the submerged lands between the shores of navigable waters within their border. The court held that Alabama had title to the lands since the land underneath navigable waters was vested to the states under the Equal Footing Doctrine. Even dried lands that are intrastate and are modestly used for commerce are subject to the Equal Footing Doctrine (see Utah v US). The implications of that are that states hold title via the Equal Footing Doctrine but are limited in use by the Public Trust Doctrine.
In contrast, the Public Trust Doctrine comes from state law and controls what the states can and cannot do with lands underneath navigable and tidal waters that were acquired under the Equal Footing Doctrine. However, this discretion is limited by the federal government. States cannot abdicate this trust duty in the same way they cannot give up their police power (Defenders of Wildlife v. Hull (2001)). States may also not discriminate between residents and non-residents in granting access to these areas that fall under the Public Trust Doctrine (Neptune City v. Avon-By-The-Sea (1972)).
Despite these federal limits, the scope of the public trust is quite expansive and includes non-navigable tributaries (National Audubon Society v. Superior Court (1983)), as well as lands influenced by the tides, whether or not they are navigable (Philips Petroleum Co v. Mississippi (1988)).
The purpose of the public trust is to provide for navigation, commerce, fishing, and preservation (Illinois Central Railroad Co v. Illinois (1892)). The navigability “for title” test is further broken down into navigable in fact and tidal. Whether the state, using the Public Trust Doctrine, has discretion depends on whether the waters were navigable at the time the state entered the union, which falls under the Equal Footing Doctrine.
While the Public Trust Doctrine provides a method for separating public waters from private waters based on the federal Daniel Ball test, this distinction is further complicated by recreation. This led to the development of the navigability “for use” test. States vary in their application of this test. Some states like Colorado hold there is no right to recreational use over private property containing non-navigable waters (People v. Emmert (1979)) whereas other states like Montana hold that there is (Montana Coalition for Stream Access, Inc. V. Hildreth (1984)).
In conclusion there are similarities between the two doctrines, but they operate differently. The Equal Footing Doctrine allows states equal title for lands underneath navigable waters. While the states are limited by this federal doctrine, the Public Trust Doctrine allows for discretion by the states through the use of the other navigability tests.
Sermo Civilis 