Historic protection for Florida's navigable rivers and lakes.

• Author: Reimer, Monica K.

This past spring, in what was perhaps the most controversial environmental issue of Florida's 2000 legislative session, the legislature considered but failed to pass legislation concerning ownership of "sovereignty lands"--Florida's publicly owned rivers and lakes.(1) During the session, it became evident that there was a substantial amount of confusion surrounding the Public Trust Doctrine. Originally a common law doctrine, the Public Trust Doctrine is now a constitutional doctrine which protects the public status of navigable water bodies. The purpose of this article is to provide the legal and historical foundation of this doctrine in an effort to assist in the understanding of the issues raised by the proposed legislation.

The Public Trust Doctrine

Navigable rivers, lakes, and tidelands are held in a public trust which imposes a legal duty upon the state to preserve and control them for public navigation, fishing, swimming, and other lawful uses.(2) Because the essential feature of the doctrine is that lands beneath navigable water bodies are not held for the purpose of sale or conversion into private ownership, strict limitations are imposed on the state's ability to transfer the water bodies, or parts thereof, into private hands.(3) Now incorporated into the Florida Constitution,(4) the Florida Supreme Court has stated that this constitution provision represents a codification of prior case law.(5) The doctrine is an expression of an ancient rule; water bodies capable of being utilized for useful public purposes were recognized and protected as public property by the laws of Spain,(6) England,(7) and even ancient Rome.(8)

Sovereignty Lands

Because title to lands beneath navigable water bodies passed "as an incident of sovereignty," the lands are legally referred to as "sovereignty lands."(9) The trust over these lands devolved in the new state by operation of law, without the necessity of any deed, inventory, patent, or survey by the federal government.(10) Ownership is not based on a legal description in a deed, but on the nature of the water body itself. Instead of record title, the navigable character of the water body creates notice of public ownership.(11) The boundary of navigable freshwater lakes and rivers is the ordinary high water line.(12) The public has the right to make all lawful uses of sovereignty lands up to this boundary line, including use of the shore or space between ordinary high and ordinary low water marks.(13)

Navigable Lakes and Rivers

The Public Trust Doctrine protects the public status of "navigable" water bodies. Florida case law defining "navigability" is clearly established. A waterway is navigable if at the time of statehood in 1845,(14) it was used or was capable of being used(15) as a highway for waterborne trade or travel(16) conducted by the customary modes of that period.(17) Navigability does not require year-round capacity for navigation, but does require capacity for navigation in the water body's ordinary state.(18) Contemporary capacity for navigation in vessels of the size used for transporting passengers and goods in the statehood period is substantial evidence of navigability.(19) Artificial water bodies or waterways rendered navigable through improvement by dredging are not legally navigable.(20) Customary modes of waterborne trade and travel in the mid-1800s included steamboats,(21) barges,(22) dug-out canoes,(23) and home-made skiffs,(24) all of which were used to transport passengers, products of the country, and produce from local farms.(25) Navigability must also be understood in the context of the land transportation system that existed at the time of statehood. Railroads were virtually nonexistent. In 1845, the only railroad in the state ran from Tallahassee to St. Marks, operated on wooden rails, and had carts pulled by mules.(26) Engines didn't arrive until 11 years later.(27) Roads were little better. The legislature declared that public roads were in satisfactory condition so long as the tree stumps left in the road were less than 12 inches high,(28) the few bridges that existed washed out during times of high water, and uncertain ferry service provided crossing of all the major streams.(29) As a result, lakes and streams were by far the most reliable public highways for moving goods and people.

Proving Navigability

Given the extensive recorded archives of Florida's rich history, facts establishing navigability are not difficult to ascertain. In the 1997 trial over a landowner's attempts to close Fisheating Creek to the public, the attorney general's office produced documentary evidence of an 1842 naval expedition on the creek using 30-foot-long dugout canoes and evidence of early 20th century navigation to trading posts on the waterway.(30) Based on this evidence, a jury deliberated less than two hours before returning a verdict that Fisheating Creek was navigable. In the previous navigability case which settled in 1987, the attorney general's office marshaled evidence of navigability of the upper reaches of the Peace River including historical newspaper accounts describing the navigability of the river for steamboats,(31) evidence of small scale traffic by commercial fishermen in more recent years,(32) and photographs of a sunken boat near the river's headwaters.(33) In both cases, the navigability of the respective waterways was common knowledge among the people of the locale because the rivers had been used for generations as public waterways.(34)

Federal Public Lands Surveys and Navigability

When the United States acquired Florida from Spain in 1821, the federal government established a new territory and began the task of surveying and selling the newly acquired federal lands.(35) Among many other tasks, surveyors were instructed to approximate the shoreline of navigable waters by surveying a series of straight-line segments called "meander" lines.(36) Lakes and rivers which were the subject of these meander surveys are referred to as "meandered" water bodies. Surveying conditions, however, were extremely adverse in the wilds of early Florida. Hostile Native Americans were a constant threat, as were the large numbers of alligators and snakes that populated the densely vegetated and marshy shores of Florida's lakes and streams. These conditions, combined with the complete absence of any consistent standard to guide meandering decisions of the surveyors in the field,(37) produced haphazard navigability determinations. In fact, only a very small number of Florida's navigable lakes and rivers were the subject of meander surveys--large portions of the St. Johns River, the Kissimmee River, the Chipola River, the Oklawaha River, and the Peace River were not meandered, even though all of these rivers bore steamboat traffic during the water transportation era.(38) Florida courts have recognized that meandering is an unreliable indicator of whether a particular water body was navigable. For that reason, meandered water bodies are given a weak presumption of navigability and nonmeandered lakes and streams are given a similarly weak presumption of nonnavigability when the issue of navigability is tried in court.(39)

Historical Deeds Did Not Convey Sovereignty Lands

Proponents of sovereignty lands legislation during the past session asserted that the proposed legislation represented good public policy because it protected the "private property rights" of landowners whose title derived from swamp deeds.(40) The "I have a deed" argument is not new. The first time the Florida Supreme Court rejected a riparian landowner's claim that a swamp deed conveyed sovereignty lands into private hands was in 1908,(41) and no subsequent case disturbed that long-standing rule.(42) Nevertheless, the legislative debate in the 2000 session revealed that the "I have a deed" argument retains emotional appeal, regardless of its legal and constitutional invalidity. That appeal is lost when the argument is placed in historical context.

Swamp Lands and the Internal Improvement Fund

Through acts of Congress, the federal government granted Florida various categories of land after it became a state. In 1845, the federal government granted the new state 500,000 acres of "internal improvement lands."(43) The intent of this grant was that the lands be sold to fund improvements to roads, canals, and navigable streams for the purpose of aiding internal communications.(44) In 1850, the federal government found itself in the position of holding vast areas of swamp lands in many of the new states including Florida.(45) Burdened by these unsaleable lands, Congress simply gave them away to the states in which they were located.(46) The expectation was that the states would convey these lands to large companies which would then be responsible for drainage and reclamation.(47) In an attempt to orderly manage these federal land grants, the 1855 Florida Legislature created the Internal Improvement Fund, which consisted of title to internal improvement lands and swamp lands and all proceeds from the sale of such lands.(48) The legislature then vested title to the internal improvement lands and swamp lands in the "Trustees of the Internal Improvement Fund" (the governor and cabinet)(49) and gave them authority to sell and transfer the lands as prescribed by statute.(50)

As anticipated, the trustees made bulk transfers of swamp lands to drainage companies, canal companies, and railroads. In terms of sheer scale, these transfers were immense. Some railroad companies were granted 10,000 to 25,000 acres of swamp land per mile of railroad or canal...