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

• Author: Adler, Robert W.
• Position: II. The Evolution of Federal Navigability D. The Federal Navigational Servitude through Conclusion, with footnotes, p. 1676-1706

4. The Federal Navigational Servitude

   Navigability is intuitively relevant in defining the geographic scope of a doctrine the Supreme Court has variously labeled a "superior navigation easement," (209) a "dominant public interest in navigation," (210) or a "servitude in respect of navigation." (211) Commentators refer to this doctrine as the "navigational servitude" or the "navigation servitude." (212) If this doctrine supports the federal government's interest in navigation, logically it should not extend beyond "navigable" water bodies. Although the Court might amend the navigability test to reflect changing circumstances, the continuing relevance of navigability should never be in doubt. This seemingly irrefutable conclusion, however, is complicated by confusion surrounding the federal navigation servitude's historical origins, legal underpinnings, scope, and relationship to other constitutional doctrines, in particular the takings clause of the Fifth Amendment. That confusion can only be clarified by evaluating the relationship between the navigational servitude and the Commerce Clause and title doctrines.

   The first Supreme Court opinion based expressly on the navigational servitude, Gibson v. United States, was not issued until 1897, (214) although it had antecedents in the Court's Commerce Clause cases. (215) Facially, the Supreme Court grounds the navigational servitude in the federal government's plenary authority over interstate commerce. (216) The "servitude" and "easement" terminology, however, suggest a federal proprietary interest in navigable waters, and in some cases the Court has added that, for Commerce Clause purposes, navigable waters "are the public property of the nation." (217) Further, in United States v. Chandler-Dunbar Water Power Co., the Court described my private title to the beds of navigable waters as a "technical title," which is "qualified" and "subordinate to the public rights of navigation, and however helpful in protecting the owner against the acts of third parties, is of no avail against the exercise of the great and absolute power of Congress over the improvement of navigable rivers." (218) In United States v. Twin City Power Co., Justice Douglas (writing for a five-Justice majority) attempted to clarify the inconsistency as follows:

   The interest of the United States in the flow of a navigable stream originates in the Commerce Clause. That Clause speaks in terms of power, not of property. But the power is a dominant one which can be asserted to the exclusion of any competing or conflicting one. The power is a privilege which we have called "a dominant servitude," or "a superior navigation easement." (219) Some commentators, however, argue that the servitude is in fact more properly based in proprietary interests than in Commerce Clause authority, or in both, and therefore that the "interest should be recognized for what it is and be dealt with in the context of the property clause of the Constitution." (220) Characterizing the navigation servitude as adjunct to Commerce Clause authority or as a proprietary interest, respectively, has significant implications for the relevance of the navigability test to delineate the scope of the doctrine.

   Once the Court announced in Gibbons that the "power of Congress comprehends navigation, within the limits of every State in the Union, so far as that navigation may be, in any manner, connected with" interstate or foreign commerce, the door was opened for several different manifestations of that power. For example, Congress could pass laws determining whether bridges or other structures may permissibly obstruct navigable waters for other legitimate purposes; (222) requiring inspection, licensing and regulation of steamboats on navigable waters; (223) taking affirmative steps to improve navigability of rivers and other waters, including channelization projects, lighthouses, jetties, etc.; (224) prohibiting or regulating actions by others deemed to impede navigation and commerce; (225) and authorizing construction or regulation of dams and related structures to improve navigation, among other objectives. (226)

   None of the above examples, however, require a separate doctrine known as the "navigational servitude." Federal action can be judged based on its connection to interstate commerce for any of the reasons found acceptable by the Supreme Court. (227) A navigability test delineates what federal actions fall within the navigable waters subcategory of Commerce Clause regulation, but it does not limit Commerce Clause authority to that subcategory, even for water that affects interstate commerce in some other way. (228) After the Supreme Court's decision in Appalachian Electric Power Co., (229) federal actions on non-navigable tributaries or other waters, the use or impairment of which might affect navigation or other components of interstate commerce, also met Commerce Clause scrutiny.

   In reality, the federal navigational servitude arose not simply as a species of Commerce Clause authority, but to address cases in which exercise of that authority may conflict with private property. In three cases predating Gibson, the Supreme Court upheld compensation or prohibited a taking for projects to improve navigable waters. (230) "Congress has supreme control over the regulation of commerce, but if, in exercising that supreme control, it deems it necessary to take private property, then it must proceed subject to the limitations imposed by [the] Fifth Amendment, and can take only on payment of just compensation." (231)

   In Gibson, however, the Court declined to require compensation for incidental damages to river access caused by a dike designed to improve navigation, holding that such a property right "is always subject to the servitude in respect of navigation created in favor of the federal government by the constitution." (232)" A series of later cases the consistency of which has been questioned in ways not relevant to the thesis of this Article (233)--upheld federal authority against takings claims with respect to navigational projects, including a pier that blocked a landowner's existing stream access; (234) projects that reduced water power benefits on navigable rivers; (235) dredging that destroyed oyster beds;" river widening that increased value of remaining portions of condemned lands; (237) a project that damaged structures on riparian lands below high water mark; (238) dredging that destroyed the navigability of one water to improve navigation in another, to the detriment of residential landowners; (239) and a project and associated condemnation without compensation for port site value. (240)

   It is difficult to explain these decisions on Commerce Clause grounds alone. (241) Clearly, the holdings cannot be explained absent federal authority to construct navigation projects or to enact the regulatory schemes in question. But no other federal Commerce Clause actions are simply immune from Fifth Amendment takings protections. (242) In part, the Court has distinguished situations in which federal action invades fast land, which require compensation, from those in which federal activities impair riparian rights below the high water mark of the navigable waterway. (243) But physical invasion is only one basis for a takings claim, and the fact that it may be more difficult to prove a claim under other branches of the Court's takings analysis (244) is different from eliminating the possibility altogether. Similarly, although it may be more difficult to prove a compensable taking for impairment of a location value or other rights short of full fee title, the Court has entertained takings claims in analogous situations, such as impairment of air rights. (245) Clearly, from relatively early on in U.S. constitutional history, the Supreme Court has viewed navigability as a particularly important public value, perhaps logically connected to its historic relationship to national defense and foreign affairs.

   The geographic scope of the federal navigational servitude, therefore, is particularly important to its relationship to the Fifth Amendment. But the doctrine did not even exist when the Supreme Court established the foundation for all of the federal navigability tests in The Daniel Ball. (246) Thus, given its Commerce Clause roots, from the outset the navigational servitude applied at least to all waters deemed "navigable in fact." (247) After the Court expanded the scope of Commerce Clause regulatory authority in Appalachian Electric Power Co., however, the logical question was whether the same scope would apply to navigational servitude cases as to other Commerce Clause cases based on impacts to navigable waters?

   In United States v. Twin City Power Co., (248) the Court held that furtherance of other project purposes does not prevent assertion of the servitude so long as "the interests of navigation are served" in some way, (249) as was true in upholding federal regulatory authority for multipurpose projects in Appalachian Electric Power Co. Similarly, in United States v. Grand River Dam Authority, (250) the Court rejected a takings claim regarding a comprehensive navigation, flood control, and power project to protect the navigability of the Arkansas River downstream, (251) as was true for the Red River and Mississippi River in Oklahoma ex rel Phillips. (252) Thus, although labeled with navigability nomenclature, the doctrine could be used to vindicate the broader range of public uses and values in water bodies subject to Commerce Clause powers.

   The Supreme Court tempered this jurisdictional expansion of the navigational servitude in Kaiser Aetna v. United States, (253) in which Justice Rehnquist ruled that navigability is not as extensive for the navigational servitude as it is for other Commerce Clause purposes. (254) Justice Rehnquist reaffirmed the ruling in Appalachian Electric Power Co. that "navigability ... adds little if...