10.4 Navigability, the Commerce Clause, and State Sovereignty

• Library: Real Estate Practice Deskbook (2019 Ed.)

2. (§10.4) Navigability, the Commerce Clause, and State Sovereignty

Federal jurisprudence has applied various principles of federalism to preserve the ability of Congress to exercise its enumerated power to regulate commerce, while recognizing the sovereignty of the respective states with regard to navigable waters.

The "equal-footing doctrine" and the "public trust doctrine" generally establish title to navigable riverbeds. Under the equal-footing doctrine, "the people of each State, based on principles of sovereignty, 'hold the absolute right to all their navigable waters and the soils under them,' subject only to rights surrendered and powers granted by the Constitution to the Federal Government." PPL Mont., LLC v. Mont., 565 U.S. 576, 590 (2012).

States take title to the land under navigable waters pursuant to the equal-footing doctrine. States, in their sovereign capacity, are free to retain ownership of navigable riverbeds or "resign to the riparian

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