The Ancient Mariner of constitutional law: the historical, yet declining role of navigability.

• Author: Adler, Robert W.
• Position: Introduction through II. The Evolution of Federal Navigability C. Navigability and the Commerce Clause, p. 1643-1676

It is an ancyent Mariner, And he stoppeth one of three: "By thy long grey beard and thy glittering eye "Now wherefore stoppest thou me? (1)

1. Introduction

   "Navigability" (2)--the degree to which a particular water body can be used by various boats and other watercraft--has a long, important history in federal constitutional and statutory law. (3) U.S. Supreme Court cases involving navigability (4) helped to shape the scope of federal authority under the Commerce Clause (5) and the Necessary and Proper Clause (6) of the U.S. Constitution. The legal concept of navigability has also been critical in defining private versus public property rights in water bodies, (7) allocating property between the federal and state governments, (8) and delineating the scope of Article III federal court admiralty jurisdiction. (9) Navigability also played a key role in the evolution of various common law doctrines, and the connections between those doctrines and the Constitution remain unclear. (10)

   Given this pedigree, to borrow from the poet Coleridge, wherefore should we stop today to question the relevance of navigability to constitutional law? In several ways the role of navigability in constitutional law began to decline long ago. Dramatic changes in the U.S. economy and in our understanding and valuation of aquatic ecosystems and resources help explain why navigability may be even less important today than it has been in the past. The role and significance of navigability, however, varies greatly depending on the purpose of the differing legal doctrines for which it is used.

   During its October 2011 term, for the first time in more than three decades, (11) the U.S. Supreme Court decided a case (12) about the meaning of the term "navigability" to establish "navigability for title," i.e., whether a state holds title to the beds and banks of its waterways under the equal footing doctrine of the U.S. Constitution (13) and for purposes of the public trust doctrine as defined by that state's law. (14) The Court granted certiorari on the single issue of whether the Montana Supreme Court applied the correct federal legal standard (15) for determining whether the Missouri, Clark Fork, and Madison Rivers were navigable at the time of statehood. (16)

   Petitioner PPL Montana (PPL) raised three narrow challenges to the Montana Supreme Court's approach to determining navigability for title: first, whether the Montana court focused on the navigability of particular river segments rather than the river as a whole; second, whether the Montana court erred by considering evidence of current-day navigability as probative of navigability at statehood; and third, whether the Montana court employed too liberal a standard for navigability. (17) The U.S. Supreme Court ruled unanimously in PPL's favor on the first two issues, (18) holding that the seventeen-mile Great Falls reach of the Missouri River was not navigable for title and remanding with respect to the remaining disputed segments. (19) Given the Court's unanimous decision on evidentiary grounds, why is this case important?

   At a basic level, PPL Montana will dictate the litigation burden states will bear in proving navigability for title, and in some cases, their ability to do so at all. In PPL Montana, the State offered as evidence a fascinating set of historical records, including the journals of the Lewis and Clark expedition, (20) which navigated many of the waters in question in dugout canoes in the early nineteenth century. (21) PPL argued that historical records and expert affidavits regarding authenticity were inadmissible hearsay because no one alive today can testify to the validity of historical accounts based on personal knowledge. (22) If neither historical records nor current evidence of navigability may be used, however, it is not clear what evidence would be both probative and admissible on the issue of navigability at statehood, making it difficult if not impossible for a state to prove its case. (23) Except perhaps in Alaska (24) and Hawaii, (25) no one alive today can testify to navigability at statehood based on personal knowledge or observation. (26)

   The Montana courts rejected PPL's hearsay objection, (27) and the U.S. Supreme Court has also decided navigability cases using similar historical evidence. (28) For most waterways, however, states do not have the luxury of relying on the most famous journals of exploration in U.S. history to prove their case. Historical records of navigation may be sparse or nonexistent for many water bodies. According to one survey, only three states have conducted comprehensive inventories of navigable streams, and those inventories were based on cursory examinations of available historical records. (29) Because settlement was often sparse at statehood, the relevant legal test is the susceptibility to navigation at statehood rather than actual commercial use. (30) Evidence of the physical condition of a waterway at statehood, however, will be even more scant if no one plied those waters at the time and therefore left no records to be evaluated. If evidence of current-day navigability is not admissible, it will be increasingly difficult to prove navigability for title. (31)

   Aside from the economic stakes at issue in PPL Montana, (32) and the possible effects on similar litigation nationwide, (33) litigation over the meaning and significance of "navigability" suggests (but does not formally raise) a far more serious question: What is-or should be the continuing role of navigability as a central tenet of U.S. constitutional law? In addition to the navigability for title test, slightly different navigability tests govern the scope of: (1) federal authority under the Commerce Clause, (34) (2) the federal navigational servitude, (35) and (3) admiralty jurisdiction under Article III of the U.S. Constitution. (36) The fact that the Supreme Court has adopted multiple definitions of navigability may not be surprising given the diverse constitutional origins and purposes of these doctrines. Each doctrine dates to a time when rivers and other waterways were our most important avenues of commerce. (37) In those times, navigability was one of the most critical defining characteristics of a waterway, if not the most important. A navigability test made sense in defining which waters should be subject to public ownership and in delineating which waters should be subject to federal or state legislative and judicial control.

   Many inland U.S. waterways continue to serve as major avenues of commerce. (38) Through the lens of twenty-first century science and values, however, rivers and other waters serve a much broader range of public purposes and provide important ecosystem services, (39) such as water supply, (40) biodiversity and habitat, (41) fish and wildlife production, (42) recreational use, (43) flood control and watershed protection, (44) and pollution assimilation. (45) Under the public trust doctrine, states hold title to protect, pursuant to state law, common resources for the public at large, for purposes that typically include navigation but also fisheries and commerce. (46) Under modern state cases the doctrine can encompass ecological values as well, and earlier scholars have urged that it be extended to protect other uses and values. (47) But these issues of scope differ from the nature of water bodies reached by the public trust doctrine. In Commerce Clause cases, for which navigation played such an important early role, (48) navigation has faded into the background relative to other public values. (49) Yet the Supreme Court continues to struggle with Congress's continued use of the term "navigable waters" in federal statutes enacted under Commerce Clause authority, most recently the Clean Water Act. (50) The Court remains split over the jurisdictional role of navigability under those statutes, and while the Court thus far has addressed the scope of the Clean Water Act largely on statutory grounds, the Commerce Clause implications have lurked in the background. (51)

   For purposes of public versus private ownership, why do we continue to litigate whether a water body was navigable at statehood, which in most cases involves evidence of navigability dating back one to two centuries? What is the continuing significance of navigability to Commerce Clause jurisdiction when far more commerce is conducted over the Internet highway than on aquatic highways? Navigability is intuitively far more relevant to the scope of the federal navigational servitude and federal admiralty jurisdiction. Even in those areas, however, the role of navigability has diminished, perhaps because the law in those areas has been well settled (53) but also because of questions about the relationship between those doctrines and Commerce Clause authority. To borrow another phrase from The Rime of the Ancyent Marinere, to what extent is navigability an albatross around the neck of U.S. constitutional law? (54) And does the answer to that question differ for each of the navigability doctrines depending on their distinct purposes and historical evolution?

   Changing the focus of the legal tests for any of these doctrines, of course, could have significant implications for settled property rights and expectations, (55) and for the balance of power between the federal and state governments. (56) For example, if the scope of the federal navigational servitude expands to encompass waters that serve public values and functions beyond navigability, the federal government's obligation to compensate those with property rights in those waters would be reduced accordingly. Broadening the title test could enhance state authority if it resulted in state ownership of more waterways, but it could also expand federal authority relative to the states if courts recognized an even wider range of public interests in waters under the Commerce Clause. The Supreme Court has altered the scope...