STATE LAND BOARD v. CORVALLIS SAND & GRAVEL CO.

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Argument of Robert Mix

Chief Justice Warren E. Burger: We will hear arguments next in 75-567 and 577, Oregon v. Corvallis Sand & Gravel and the related case.

Mr. Mix may you proceed.

Mr. Robert Mix: Mr. Chief Justice, and may it please the Court.

Gentlemen, I am Robert Mix appearing here on behalf of Corvallis Sand & Gravel Company.

The issues in the case are essentially the following.

Those made by the State are: Was the change in channel of the Willamette River from a loop approximately three miles in length to a basically straight channel across the neck of the loop avulsive.

In that connection, it should be pointed out that the land involved in this case is not only the changed channel but a portion of the river as it had historically flowed in its natural pit.

The other issue made by the State is whether or not the change of channel transferred private dry land to the State is fee simple, by virtue of the presence of the water, which had submerged the private land.

The issues made by Corvallis Sand are the following.

Does the State has sufficient title to maintain ejectment, to recover the bed of the river when its title is based on sovereignty and when there is no issue in the case as to interference with the public right of navigation and fishery by Corvallis Sand?

In this connection, the Sand & Gravel materials that were removed from the river, were removed under permits issued by the Core of Engineers.

The second issue made by Corvallis Sand, does the State by virtue of its sovereignty has sufficient title to recover money damages for removal by Corvallis Sand of Sand and gravel materials from the bed of the stream.

Again, there being no issue as to interference with navigation or fishery by Corvallis Sand.

In support of its position --

Justice William H. Rehnquist: Mr. Mix, isn’t one of the underlying issues in the case at least if you take some of the amicus briefs that a question of what law governs on this issue of title whether it is Oregon law or Federal Common law?

Mr. Robert Mix: Yes, Your Honor, it is my understanding of the Bonelli decision that we are now in an area to be controlled by Federal Common Law and that decision is at the core of the courts receiving this case, and the Court is expelled out as a matter of Common Law the extent of the State’s title.

Justice William H. Rehnquist: Well, of course, Bonelli is distinguished below its fact, isn’t it?

There you were dealing with what had been an interstate boundary and the Court in its original jurisdiction cases had always treated that as a matter of Federal Common Law.

But, the Willamette River at Corvallis has never been an interstate boundary.

Mr. Robert Mix: That is correct, Your Honor.

As to the Willamette River, it is my understanding of Bonelli that the Court said that first the State’s title to the bed is a limited title, that the State’s interest in the bed must be related to navigation.

Third, that that title is determinable if the navigable aspect of the use of the bed ceases.

Fourthly, that the State’s interest in the bed is “as a bed”, and in that connection, the court sighted that the case of State v. Gill from Alabama, in which the Alabama court held that the State holds title to the bed “as a bed” and not to the individual grains of sand or lumps of mud.

The first basis on which Corvallis Sand claims that the State cannot maintain the ejectment, is that the Common Law concept of the ownership of the beds of navigable fresh water streams controls in this situation.

That doctrine was announced by this Court in the case of Jones v. Soulard, decided in 1860.

Oregon was admitted to the Union in 1859, and it is submitted that as of the time Oregon became a State, the Common Law controlled the ownership of the beds of navigable streams and under the Common Law, the State interest did not extend above tide water.

Unknown Speaker: How is the basis of the Federal Court jurisdiction in Jones v. Soulard do you remember?

Mr. Robert Mix: Your Honor, it is not made clear in the decision.

As to jurisdiction, we take the position there is jurisdiction here.

All the property that has been involved in this case originally was patented out by the Federal Government.

Secondly, on the basis of the equal-footing doctrine, which was a basis for jurisdiction also as I understand it in the Bonelli case.

Also on the basis of the fact that the Willamette River is navigable, and I hope to talk about that later at least until the Bonelli decision.

Also on the basis that the Oregon Courts ruling, which in effect said that the State has a fee simple title to the bed is contrary to Bonelli.

Justice William H. Rehnquist: If your first basis for jurisdiction were federal jurisdiction, the idea that the land was originally patented by the Federal Government were adequate to sustain it.

Any real property dispute that a role is west of the Appellation Mountains you could bring in Federal Court, could you not?

Mr. Robert Mix: Yes, Your Honor, and the Court has stated this as a basis for jurisdiction.

Unknown Speaker: Hughes v. Washington, that was --

Mr. Robert Mix: In Hughes v. Washington and also in Borax Limited.

And also as I -- well, not in Bonelli.

No I do not think the federal aspect.

The federal patent aspect is mentioned in Bonelli.

Now, Your Honor, my recollection maybe in errand -- apparently, it is.

It was not my understanding that Bonelli involved a boundary between two states.

Another basis for jurisdiction is the problem of due process.

This again, I hope to discuss later, but it is on the basis that the riparians became vested with certain rights that they were granted under the Common Law and that those rights have been divested and particularly in this situation, and it should be pointed out that the states -- at least I have not questioned jurisdiction in previous cases.

Continuing with the basis of Corvallis or the Common Law as being controlling here, under the Common Law, the State had no interest in the beds of navigable fresh water streams.

Again, Oregon became a State in 1859 and the Common Law was controlling, in my view, until at least 1876.

When the court gave the opinion in Barney v. Keokuk, the patents involved in this case are dated approximately 1853, 1859, 1865, and one of them involving one small government lot is dated 1883.

However, that was a homestead, not a donation land claim and the entryman had made his entry in his filing in 1875.

We took the position in the Oregon Courts that his riparian rights related back to 1875, which would be before Barney v. Keokuk.

The Oregon Court rejected that position.

The Oregon Court did not, to the best of my knowledge until 1908, in the case of Hume v. Rogue River Packing Company make a ruling that the beds of navigable fresh water streams belong to the State.

And, by that time, all of these rights had been vested.

The Oregon Legislature did not until 1967 pass a statute claiming that the State owned the beds of navigable fresh water rivers.

Now the second and alternative ground for ownership by Corvallis Sand is as follows.

Accepting the line of decisions of the court which began with Barney v. Keokuk in 1876 that the State owns the bed of navigable fresh water streams, but that the State has the right to grant to the riparian, whatever portion of that title it wishes.

In applying that line of decisions, it is our position that in 1859, when Oregon became a State by constitutional provision yet adopted the Common Law.

This was accomplished by continuing enforce of the statutes of the territory and, one of those statutes made the Common Law controlling in Oregon.

Then it is our position that in 1859 Oregon, even though it owned the beds of the navigable fresh water streams, made an election to apply the Common Law and that the riparian received his traditional rights and that it is a denial of due process to now try to take those rights away from him.

Justice William H. Rehnquist: Would you analogize that situation to a case where Oregon had received lands from the Federal Government at the time of Statehood, which were unrestricted (Inaudible) and turned around and conveyed them to private individuals?

Mr. Robert Mix: Yes, Your Honor.

In that situation, I assume we are talking about lieu lands, and in that situation, the State of Oregon would be in the position of a private land owner.

When it granted, if it gave land that was riparian, and did not reserve any rights from the deed.

The entire title would pass including the traditional Common Law of riparian rights.

The third basis for the position that the State cannot maintain the ejectment is based on Bonelli, which approaches in many ways, at least in my view, the Common Law and again, Bonelli held the State’s title is limited.

It must be related to navigation, it is determinable, the State’s interest in the bed is as a bed and my interpretation of that is that as part of the navigational servitude.

The public would have the right to anchor on the bed as part of the fishing servitude for example, it would have the right to way down the bed, to have used the bed for spawning salmon and so on.

But, that it is not proprietary.

On the basis of the --

Chief Justice Warren E. Burger: did I ot understand you say that at no time as Sand & Gravel Company every interfered or conducted activities that would interfere with these various rights?

Mr. Robert Mix: Yes, Your Honor, and my basis for saying them is this.

The Core of Engineers, under the commerce clause issued permits for removal of Sand & Gravel materials and it is our position those permits would not be if -- that the court would not issue those permits if navigation were being interfered with.

And the second basis is that the State at no time pleaded or offered any evidence that there was any interference with navigation or fishery, throughout the case we have maintained there was no interference, and to the best of my knowledge a State has never said there was any interference.

The fourth ground relates solely to the judgment for money damages recovered by the State and the State recovered a judgment based on the number of cubic yards of material removed from the river.

At Common Law the riparian had the right to remove Sand & Gravel so long as he did not interfere with the public rights.

Bonelli, holds again, the State owns the bed as a bed citing State v. Gill, and then Gill, the Alabama Court said, “The title to the State does not extend to the individual grains of sand or lumps of mud”.

And on that basis, we submit that the proprietary right of removing Sand & Gravel is not owned by the State, but belongs to the riparian and the State cannot recover damages.

Chief Justice Warren E. Burger: Your argument is that the bed is still the bed even if some of the surface material is taken off of it.

Mr. Robert Mix: Yes, Your Honor, and as a matter of river hydraulics, the river normally replaces the Sand & Gravel you remove it in the next spring or in the next high water, it washes more material though.

There is a related matter, it is not an issue directly but it is important and that is the definition of navigable or navigability.

There is no question, but that in 1971 when this case was tried, that the definition of navigable applied to any stream which had historically been navigated irrespective of subsequent events.

The Willamette River was used in the early days as the main artery of commerce in the Willamette River, and again, I am referring to the area above Corvallis, which is the disputed part.

Justice William H. Rehnquist: When you say ‘above’, do you mean upstream from or downstream from?

Mr. Robert Mix: Upstream from Corvallis, Your Honor.

But at the end of the rail road and the truck, commerce disappeared.

Today the stream is used, fishermen floating down or people floating down canoes and inner tubes and such.

The historical definitions of navigable are derived from two sources.

First, in the Genesee Chief in 1851, the court for purposes of admiralty jurisdiction held that admiralty jurisdiction does extend to navigable fresh water.

In 1870, in the case of Daniel Ball, the Court held it for purposes of the commerce clause.

Navigable is to be defined as far as fresh water is concerned, as all streams or bodies, which are capably of being used commercially for trade and travel.

Now, the law has been undisputed until Bonelli that if a stream was historically navigable the State’s ownership continued.

It is submitted that definitions of navigability, for purposes of the commerce clause and for purposes of admiralty jurisdiction should be brought for protection of the public.

However, when we come to define navigable, for the purpose of taking from the riparian his rights and giving those to the State, the definition should be restrictive, and a suggested definition is that a stream will be considered navigable for purposes of the State’s interest in the stream.

So long as it continues to be usable for commercial purposes of trade and travel, and the lament at this time, in my judgment at least is not suitable for that purpose.

Now Bonelli --

Unknown Speaker: Is that kind of a new definition of navigability?

Mr. Robert Mix: The idea of the continuing navigability is new Your Honor, that is correct.

The Bonelli --

Unknown Speaker: You defined in here, do we not to the contrary, at least on a different -- maybe you would say a different kind of a definition?

Mr. Robert Mix: Let me make it very clear, the last thing Corvallis Sand wants to do is to try to defeat the jurisdiction of the Court.

The stream was navigable, the Court found it was navigable, our Trial Court, and I stipulated that it was navigable and it was navigable.

My concern is this.

The states have liberalized this definition of navigable for the purpose of claiming ownership to additional land.

And Bonelli, at least implies that the states’ interest ceases if the land ceases to be necessary for purposes of navigation.

Justice William H. Rehnquist: Even if we were to adopt your restricted definition of navigability, so that Bonelli would not apply, the Supreme Court of Oregon could still develop its own body of law, could it not as to whether or not you, your client, or the State own this particular land?

Mr. Robert Mix: That is not my understanding, Your Honor.

The definition of navigability or navigable as for the federal courts, and it is along the line of decisions holding this.

Secondly, again, and I only state my understanding of Bonelli.

My understanding of Bonelli is that it said that this area of the law in the future is to be the subject of Federal Common Law.

The situation there was a very limited situation involving some dry land, which had been artificially accreted.

Again, it is my understanding that here we are seeking to explore what law should be applicable on a broader scale --

Justice William H. Rehnquist: You are trying to avoid the application of Bonelli, as I understand your argument by limiting the definition of navigability, is that correct?

Mr. Robert Mix: No, Your Honor, that is not my position.

Justice William H. Rehnquist: What is your reason and for wanting a narrow definition of navigability?

Mr. Robert Mix: For this reason, Your Honor, again the states have taken upon themselves to liberalize the definition to take on more property.

And again, if my understanding of Bonelli is correct, the implication at least is that the State’s interest only continues so long as the water is usable for purposes of navigation.

Justice William H. Rehnquist: So doesn’t that prove what I just asked you that you a want a narrow definition of navigability so that Bonelli will have less application?

Mr. Robert Mix: Well, it would limit the -- shall we say the land area under water in that sense?

Yes, Your Honor.

Justice William H. Rehnquist: Yeah, okay then, supposing we were to conclude for one reason under that Bonelli did not govern this case, then wouldn’t it be up to the Supreme Court of Oregon to decide by Oregon law who got the proper that is in conflict here?

Mr. Robert Mix: Not, if my understanding is correct Your Honor that we also have a problem of due process here, in the sense that these rights became vested.

Justice William H. Rehnquist: Well, subject to constitutional limitations but to what body of real property law would you look if Bonelli were not applicable to this case?

Mr. Robert Mix: Your Honor, prior to Bonelli the states had free reigned to decide what they chose.

Excuse me! I have requested to reserve ten minutes, Your Honor.

Chief Justice Warren E. Burger: Very well Mr. Mix.

Mr. Yurinick.

Argument of Russell Iungerich

Mr. Russell Iungerich: Mr. Chief justice, may it please the Court.

I might begin by thanking the State of Oregon for permitting State of California and the 29 other states, which joint it advancing the position expressed in our Amici briefs in this case.

An opportunity to present our position to the Court had oral argument.

Our position is it neither this case nor the earlier decision of Bonelli Cattle Company v. Arizona, presented a federal question arising under Federal Common Law.

And I submit that this is a very critical question to the states.

Until Bonelli, the nature and extent of the rights of each state and it is land, navigable waters within each State’s boundaries, were questions of State Law exclusively confided to State courts --

Unknown Speaker: How about Hughes v. Washington?

Mr. Russell Iungerich: Hughes v. Washington, Your Honor I submit, relied upon a construction of a federal patent and it is a question there, it involved the federal patent and the boundary that we were talking about.

We are talking about actually defining one of the boundaries of a federal patent where you have a federal patent and the construction of that patent and its scope and giving a force and effect such as in use or in Borax question, we concede that there is a federal question.

However, the normal rule is under Joy v. City of St. Louis, which is mentioned in one of the Amici briefs, is that the mere fact that a federal patent was the source of title does not conferred jurisdiction on any court.

There has to be an issue about construction.

In this case there was no issue of construction of the patent; the issue here is the effect of a change brought about by a flood on the Willamette River.

We submit that, that is a question purely and simply of State Law, what the effect of that change was?

Now, effectively what we are arguing for is with regard, we submit it first under the equal-footing doctrine.

The equal-footing doctrine is properly interpreted, leaves to the State courts the right to determine under their own rules of property and in their own forum, all questions with regard to the beds of navigable rivers and all questions with regard to the changes in those beds that occurred later.

Simply stated that means that all these questions are State Law questions as we see them.

An alternative view, we believe essentially that, that construction is the proper.

An alternative, and perhaps equally acceptable construction to the states that argue is Amici, is about if the equal-footing doctrine does confer jurisdiction under the Federal Constitution on this Court, it confers it to define what the incidence of sovereignty are and no more.

It does not confer a basis for determining questions under Federal Common Law, and to explain that point and what I mean by that is this.

The Court could say that as of the date of admission to the Union, the states involved by under the equal-footing doctrine were vested with the fee simple title in the beds of all navigable rivers as to wherever those beds might move in the future.

However, relying on the analysis of Bonelli, the effect of that decision would be that it would quite title to the beds of navigable rivers in all States.

In the State, in full proprietary and all other sovereign aspects and would do so as a matter constitutional law no longer bringing cases like this before this Court.

Because any effect of where the river happened to be flowing and change by a flood would live those cases out of Court.

However, if Bonelli is applied under those circumstances it would mean; State cannot rely upon the equal-footing doctrine as a source of title for relicted beds or reemerged land.

But we submit that still does not present a federal question.

What it creates is a title vacuum, and that is really what the issue was in Bonelli.

In other words, the Court as we see it should have gone no further than to decide in Bonelli that equal-footing did not confer title on the State?

It should not then have gone and created a Federal Common Law rule, which disposed of the relicted bed of the river and granted it to Bonelli Cattle Company.

Because the question there presented is really a question of State Law as the cases of this Court indicate.

The effects of accretion, the effects of avulsion, the effects of reliction, all of those questions have always been held by this Court to be questions for the State courts, not questions for the federal courts to determine.

And we submit that the basis for this second alternative is essentially that when you decide that equal-footing determines that there was no claim in Bonelli.

That equal-footing could be a basis for the State’s title.

Really it should be up to the State Court to decide the disposition of the property in question at that point, because the third section of the Bonelli opinion begins by stating the question that remains is asked to who owns the subject land under the applicable Federal Common Law.

I submit however, that the parties in Bonelli, and having read the briefs, I submit this, indicated that there was no difference between State and Federal Law in this case and they did not bring out any source of federal jurisdiction for creating a Federal Common Law or principle.

We are told in Erie Railroad v. Tompkins that there is no longer any general Federal Common Law.

So we must look to one of the several sources of specialized common law.

None of them, which our brief points out are applicable in the case of the Federal Common Law rules created in the Bonelli decision and I think --

Justice William H. Rehnquist: What about interstate boundaries?

Mr. Russell Iungerich: Well, the Court did not rely on the interstate boundary in Bonelli, and I would point out that we were only talking about land that was wholly within Arizona and Bonelli.

Another words, we were talking about Arizona owned from the middle of the river to the new high water mark.

Justice William H. Rehnquist: But the river had been at one time the interstate boundary had it not?

Mr. Russell Iungerich: It had at one time, well, it is still is the interstate boundary.

Justice William H. Rehnquist: The channeling?

Mr. Russell Iungerich: The channel, the river.

I do not know exactly the effect of the compact between Arizona and California on that point.

At this precise location, which of course affects that, but the interstate boundary was not the critical question.

If it were, we would not be here because I would submit if there is an interstate boundary and you are talking about a conflict between two states over an interstate boundary that is one of the areas where specialized Federal Common Law does apply.

And we would agree under those circumstances.

But it was land wholly within Arizona; it was the land between the new high water mark and the old high water mark.

And, there was a question purely and simply of State Law that should have been applied.

Unknown Speaker: Do you think State Law has forced in that one to hear a court to the case -- over to the case to give the State title to the land under a river, which has changed -- a navigable river which has changed its course noticeably by an ablution rather than accretion?

Mr. Russell Iungerich: I think the State could so hope, yes.

Unknown Speaker: At the time of the statehood, the rivers in a certain place on the equal-footing doctrine the State gets the title to the riverbed as it been is.

Then the river changes course, mark at least, saya, a quarter of a mile and the person over whose land the river now flows losses title to the riverbed.

Mr. Russell Iungerich: That is right.

Unknown Speaker: Do you think the State could have that sort of a rule?

Mr. Russell Iungerich: Yes, I do believe.

Unknown Speaker: Without any reliance on any equal-footing doctrine.

Mr. Russell Iungerich: Yes, I do, Your Honor.

I think the reason for that is the whole --

Unknown Speaker: You have to say deposition?

Mr. Russell Iungerich: Yes, Your Honor because the whole purpose of protecting the public’s rights, the commerce, navigation and fisheries depends as the cases of this board teaches upon the ownership of the bed.

The two are related, and so the State holds that bed in trust to protect those public purposes and it really makes no sense to talk about the State not owning the bed of a major artery such as the Willamette River, a major navigable river which is so important to commerce and to a State and to its public.

So that you have some portions that are held in private ownership and other portions that are held in public ownership.

Justice William H. Rehnquist: Would you deny that the Oregon courts could conclude as a matter of Oregon Law that the State of Oregon did not have title to this river or to the bed of the river?

Mr. Russell Iungerich: I think the State of Oregon could so decide, and under those circumstances many states such as I believe Wisconsin and Illinois have taken the position that the riparian land owner owns to the.

Unknown Speaker: Middle of the stream.

Mr. Russell Iungerich: Middle of the stream and if the State decides to do that, I submit that is within the State’s prerogative.

But the problem here is whether or not a Federal Common Law rule should compel that result that the State gave up title to the bed of the river, and that is I think the critical issue of State sovereignty that is presented in this case.

Unknown Speaker: Of course, the State got the part of this land and the bed of a new river in this case.

Mr. Russell Iungerich: They got part of the land, yes.

The question is the remainder.

Thank you.

Chief Justice Warren E. Burger: Mr. Herman.

Argument of Petern S. Herman

Mr. Petern S. Herman: Mr. Chief Justice, and may it please the Court.

My name is Peter Herman, I represent the Attorney General’s office, State of Oregon and I am here on behalf of the State Land Board.

I feel some clarifying statements here on order in terms of stating the case, I would like to call the Court’s attention to pages 40 and 41 of the joint appendix, the brown document.

The chart on the left shows the river as it was in 1890, and the Court will note two points A and B.

This is the neck of the Peninsula, and the overflow channel that was discovered on that date.

The photograph or the channel on the right, page 41 it shows an enlarged overflow channel and the smaller channel going around the Oxbow.

That was a river as an existed in 1911 after the change took place.

Now, the holding of the Bonelli Cattle Company, as we interpreted the decision, was that public title follows the river and its change is to guarantee full public use and enjoyment.

That when the river recedes from riparian property, the exposed land is no longer needed by the State for public purpose, and therefore title goes to the riparian owner, and whether the change is sudden or artificial, acceptable or not, makes no difference.

We submit that the rationale should be applied in this case to the fact involving Fischer Cut and in any event, even if traditional avulsion doctrine is to be applied, we submit as a matter of law that no avulsion did in fact occur.

And in effect what the court is being called upon to do here is to review the legal conclusions the Oregon courts drew and then essentially agreed upon factual setting.

Now, what happened here was --

Unknown Speaker: Precisely, what are the issues that State raised in its petition for Certiorari?

I take it that you have got title to three of these parcels.

Mr. Petern S. Herman: Well, as far as this --

Unknown Speaker: And beyond those parcels -- what issues here, you aren’t raising any issues to those parcels?

Mr. Petern S. Herman: We are not raising any issues as to parcels that the State was awarded title.

Unknown Speaker: All right now then, what are the --

Mr. Petern S. Herman: The issues we are talking about are sensibly parcels 2A, 2B and a portion of parcel three, which are called Fischer Cut.

That is the overflow channel that the Court sees on page 40 and the enlarged channel that the Court sees on page 41 with the word ‘Fischer’ in it.

Over a 20-year period, there is much flooding, recurrent storms, some major storms.

In 1890 this channel current water and in the intermediate stage of five feet.

By 1906, one-fourth of the river was flowing through this channel at the four-foot stage, which is again an intermediate stage.

There were some more major storms, and by November -- sometime after November 25 of 1909, the main flow of the river was found coursing through this overflow channel.

Now, the Trial Court held that this constitute an avulsion that the change was sudden and violent.

The Oregon Court of Appeals and the Supreme Court essentially agreed, and ruled that the State had no title to the bed in this portion of the river.

Now this section of the river is approximately 2,500 feet long, but the Court sent the case back to the Trial Court to determine the precise limits of the avulsion.

Now the issue we raised in our petition is whether under these facts, it was proper for the Court to conclude that an avulsion did occur, and that the public did not have a title in this bed.

Stated in other way, we are contending that this was not an avulsion that the public’s title to the river followed the river as it enlarged over the years this overflow channel.

Essentially, what you had here was a river flow and around an island at an intermediate stage --

Justice John Paul Stevens: Mr. Herman, if it isn’t an avulsion, do you concede that the State does not have title to the bed, the Fischer’s Cut?

Mr. Petern S. Herman: Well, if avulsion doctrine applies, Your Honor, that would have to be the concession, yes.

Our position on that is several points.

First, is a matter of law there was no avulsion here.

There was no sudden change of channel, you had an existence two channels.

Justice John Paul Stevens: Yes, but let us assume it is.

I want to be sure about this.

If it were an avulsion then, you are contempt to have a situation or the State of Oregon does not own that portion of the bed of the river.

Mr. Petern S. Herman: If avulsion -- if this Court is to continue holding an avulsion doctrine applies then that ends the case.

We submit that --

Justice John Paul Stevens: I thought the Supreme Court -- State Supreme Court awarded you three tracks of land, 2A, 2B and 2C.

Mr. Petern S. Herman: Your Honor -- those are the track sovereign issues.

Justice John Paul Stevens: All right, what did they award you?

Mr. Petern S. Herman: They awarded us tracks one, five, six, and four --

Justice John Paul Stevens: Oh I see and are they under the old channel?

Mr. Petern S. Herman: Well, actually, you have got a combination here of old channel and new channel.

The river falling in Oxbow prior to 1890 and part of the property and dispute here is that same river.

What happened was there was an overflow channel across the neck of the Oxbow and that is the area of the river that is in issue here in this Court today, because we are saying that the State has titled to the bed or under that former overflow channel, which is now the main bed of the river.

There is no contention from us concerning the parcels that the --

Unknown Speaker: Oh no, I take it that -- I do not see any claim in your brief, perhaps it is there, and asking us to overrule Bonelli?

Mr. Petern S. Herman: No, we are not asking to Court to overrule Bonelli providing that the Court applies what we think is the logical rationality.

Unknown Speaker: Let us just assume for the moment that State Law would apply in this case, and Oregon Law would apply the avulsion and accretion law.

I think that you would come out about the same way under this --

Mr. Petern S. Herman: No, we would not come out the same way, Your Honor, because of the State -- I assume if the State court applied avulsion doctrine they withhold that we did not have title for the bed in this overflow channel, which is now the main channel on the river.

Unknown Speaker: Well, they held that you did not have title.

Mr. Petern S. Herman: That is correct, but they held it on the basis of Bonelli, they applied --

Unknown Speaker: I understand, but under State Law, you would come out about the same way at least as of these three tracks, if there was an avulsion.

Mr. Petern S. Herman: Come out the same way as federal law, is that --

Unknown Speaker: No, as the court -- as the result here, you would have the same result as to ownership with respect --

Mr. Petern S. Herman: That is correct.

If a State Law was applied -- well, I am going to have to recede from that.

I do not think there has been another case in the State of Oregon in which the principle of avulsion has been applied against the sovereign.

It is been applied in boundary disputes to claim riparian owners, where a river was a monument or a boundary between two riparian owners.

It has not to my knowledge, has been applied to say the State does not have title in the case of an avulsion, and that of course is our principle contention here that avulsion doctrine has no place in the case such as this?

Unknown Speaker: This is why you surprised me in your possession about avulsion.

Mr. Petern S. Herman: Well, maybe I misunderstood the courts.

I caught myself, because if the court of course the Oregon Court applies avulsion doctrine relying on Bonelli, I assume that it would apply the same doctrine even if Bonelli was not relied upon.

However, we would in argue in the Court, if we remanded back that avulsion is not appropriately applied to a situation like this, because avulsion is a boundary concept to mark the boundaries between riparian owners.

It is inappropriately applied in a situation where the sovereign title is an issue and if you are going to have an avulsion doctrine, you are always going to have uncertainty as to ownership of the riverbed.

Because you are always in the situation of trying to evaluate changes of the river and there has been hundreds of changes of the Willamette River since 1859.

And you might just as well say that public does not have a title, there is no for public use and enjoyment because you are in the position of always having to litigate, was this or was this not an avulsion.

We like the Bonelli rationale, which says, that the public title follows the river.

There was some language in the opinion that indicates that it only follows the river as to gradual changes.

We think this ‘word’ gradual raises the same problem again.

The Court was relying upon boundary cases, where the issue is, where the land is between two states when the river changes and those cases where there is a sudden change you can observe where the river was, and the former channel of the river remains the boundary.

But that rationale is inappropriately applied to a case like this.

Justice William H. Rehnquist: Well, but according to the findings that the Supreme Court of Oregon you could certainly tell the day that Fischer’s Cut began to carry the majority of the stream.

Mr. Petern S. Herman: Well, I do not know whether you could or not, Your Honor, nobody was there to see it, the witness isn’t there.

Justice William H. Rehnquist: Well, nobody has been there in the case of most things it has been found to be avulsion, it is all a bunch of early settlers or Indians testifying about boats going up and down the river and that sort of things, isn’t it?

Mr. Petern S. Herman: Yes, well, Your Honor, I would answer your question this way.

You have an avulsion if you are going to apply the traditional doctrine whether it is a channel change, but I submit there is no channel change when you have got both channels there and it is just a question of the water in one channel changing from the major flow to that channel to the major to the other channel and even if it is sub, it is not really --

Justice William H. Rehnquist: No, but there is a respectable authority contrary to your position.

As in the various State courts would you treat my questions in one of the State Law in certain case.

Mr. Petern S. Herman: I am not sure, which court -- the case the court, what do you mean, referring to.

There are actually very few cases that have dealt with this issue it is mostly boundary disputes.

The Commissioner’s case was the closest case that I know of, and that involved a none-navigable stream and a boundary dispute between two riparian owners.

The Court relied on that to come up with the result it did in this case.

I would like to make one comment about the business of the rights of riparian owners under Oregon Law.

Oregon Law grants the riparian owner no rights below high water, unless by affirmative statute or deed it has been the Common Law of our State that the riparian owner owns only the high water.

And that what rights he has is by grant of the State, and that has been a sovereign law in our State.

And going back at least for Bowlby v. Shively in 1892, which was in this Court on Appeal.

Our suggestion to this Court is that, if federal law is to be applied and, we do agree with Amici California to this extent that the State should have title and the State Court should have the right to decide title in all cases of river changes, and that the fact there has been is so called avulsion change does not deprive the public of title.

And, the State can decide whether the public is to have title on that case or the riparian owner.

Justice William H. Rehnquist: Well, then you are asking for a change in the Bonelli doctrine, aren’t you?

Mr. Petern S. Herman: You mean change as to what Court decide -- is to decide the issue?

Justice William H. Rehnquist: Yeah.

Mr. Petern S. Herman: We have not asked for that, no, because we got -- what we considered to be an unsatisfactory result in the Oregon Court and we were happy to petition this Court to have that result corrected.

It would help the State if the Court agrees with our contention and rules that it has jurisdiction.

It would also help the State of this Court rules that it is up to the State to decide under these circumstances whether the riparian or the State has a title.

Justice William H. Rehnquist: But we cannot do that and leave Bonelli completely intact, can we?

Mr. Petern S. Herman: The Court would have to modify Bonelli, I presume as to the comments of Federal Common Law, yes.

Unknown Speaker: How would you assess the satisfaction up here with Bonelli?

Mr. Petern S. Herman: Assess the satisfaction nationwide with Bonelli, Your Honor.

Unknown Speaker: I wonder why you do not want to hit it head-off?

Mr. Petern S. Herman: Well, I like the result of Bonelli or we like the result of Bonelli.

If the Court had stopped at the point of saying that Arizona has no title under the equal-footing doctrine to this bare land and the rest of the opinions stood the implication would be very clear that the State would still have title no matter how the river change.

Chief Justice Warren E. Burger: And are you suggesting that we modify or reexamine at least to merely the dicta in Bonelli?

Mr. Petern S. Herman: Yes, although I think the Federal Common law is more than a dicta; because the Court relive on that to say that Arizona did not have titled to the bare land, although the Court could have said it did not have titled of the bare land just based on the equal-footing doctrine.

I think it is appropriate here to sum up what our position is.

If the Bonelli case is to apply, we submit that it should apply on this case and the Oregon Court would have to be reversed, because the rationale of Bonelli is that title follows the river.

And, the character of the change is immaterial, both is to the riparian and is to the public.

We feel that same rationale should apply to both sides.

If the Court is to modify Bonelli, it seems to us that part of the opinion that in effect rules the State has title under the Constitution or under the equal-footing doctrine as to the river wherever it lies.

That would require remand back to the case to the Oregon courts to deal with the fact that their decision is inconsistent with the way this Court would interpret Bonelli under those circumstances and leave to the Oregon courts and legislature to decide how the title should be apportioned between the riparian owner and the State.

Unknown Speaker: Do, you understand your State towards Bonelli that there was an avulsion in this case?

Mr. Petern S. Herman: They held there was an avulsion in this case, yes.

Unknown Speaker: And now, do you think that if Federal Law applies that we should not necessarily accept their finding as to avulsion?

Mr. Petern S. Herman: They should not accept it, because we submit both as a matter of law, whether you are looking at traditional avulsion doctrine or looking at the equal-footing doctrine under Bonelli, this was not an avulsion, and it was not an avulsion because it was a 20-year process in fact.

One-fourth of the river was going through this channel in 1906 and it did not change until November of 1909.

So I submit that this is a matter of classic avulsion; that is not an avulsion.

Unknown Speaker: If you accept the finding of avulsion, I take it so much you have said before would anticipate the same result under Oregon law as under federal law, if this was an avulsion.

Mr. Petern S. Herman: Well, if it is in the Court rules it is still up to the State to decide, to --

Unknown Speaker: Let us assume that we decided that Federal Law governs, the federal law does not cover but State Law does.

Would you think that Oregon courts would come out with the same result?

Mr. Petern S. Herman: Well, I think I would rather not predict that, because I would want to argue to the point that this really is not an appropriate doctrine to apply when the State is the sovereign and the owner of the bed and the issue is whether the State has title to where the river now flows.

I would want to argue that, we would want to argue that point again and get the Court to reexamine its thinking.

Particularly since this is a first case that where the State was involved in this manner that’s come up in the State of Oregon that I am aware of.

Unknown Speaker: So the Oregon Court here got around saying that they did not think the State really needed the ownership of these tracks under this navigable stream.

The State’s total sovereign interest could be served by in other ways.

Mr. Petern S. Herman: The State was answering our contention or it interpreted our argument to mean that we should get title because we needed it, even though, it was avulsive and our argument of course was that we needed title and it was not an avulsion and that our argument had substance to it, it was just a technical contention that we should have titled because it was nice to have title.

Chief Justice Warren E. Burger: Under Oregon Law, Mr. Herman, is the determination of an avulsive change of mixed question of the law in fact.

Mr. Petern S. Herman: I think that states purposing Mr. Justice Burger because the facts in this case really are not in dispute, it is the conclusions of the Court drew from those facts that we are arguing about.

Chief Justice Warren E. Burger: Do you think we have any authority to draw different inferences and conclusions?

Mr. Petern S. Herman: I submit you do Your Honor, and agreed upon setting the facts.

You are not really making a different finding of fact, because what the Oregon courts did was draw a legal conclusion that from these facts we hold an avulsion occurred.

It really was more of a legal conclusion because the facts are essentially an agreement.

Chief Justice Warren E. Burger: Well, but when -- does this Court ordinarily reexamine the highest courts of the State on the determination of the State Law?

Mr. Petern S. Herman: Well, this was not a determination of State Law --

Chief Justice Warren E. Burger: I am just taking one-step at a time.

On State Law we do not reexamine, do we?

Mr. Petern S. Herman: If there is a federal question involved, the Court will reexamine the inferences or conclusions that are drawn from the agreed upon facts.

Chief Justice Warren E. Burger: That is what you are suggesting now, is that because the federal question is at least hovering here --

Mr. Petern S. Herman: Yes.

Chief Justice Warren E. Burger: Not yet, then we can say that this was not an impulsive change, because it took at least three years for it to occur.

Mr. Petern S. Herman: Actually, it took about 20.

Chief Justice Warren E. Burger: Yes, but at least three.

Mr. Petern S. Herman: Yes, the federal question aspect of it is critical of course, if there is no federal question here, if the states not ascertain to write under a federal law, then we have no basis to ask the court.

Chief Justice Warren E. Burger: We are not here at all.

Mr. Petern S. Herman: Right.

Justice William H. Rehnquist: Mr. Herman, you say this was not a classical avulsion, it is certainly was not a classical accretion neither was it?

Mr. Petern S. Herman: It falls for almost precisely within the case of Commissioner’s -- I think the United States, Your Honor, which has cited in the brief.

The classified is an exception to the accretion doctrine, because what the river did was to fall around and create a new channel and how long that took we do not know?

But we know it took 20 years after the channel was discovered before it became the main channel of the river.

Justice William H. Rehnquist: But we also know there was a precise point in time at which one channel seize to bare the main part of the current than the other one did from the findings to the Court doing that.

Mr. Petern S. Herman: That is correct, Your Honor, sometime after November 25 of 1909.

Chief Justice Warren E. Burger: Thank you, Mr. Herman.

Mr. Mix you have about nine minutes left.

Rebuttal of Robert Mix

Mr. Robert Mix: Thank you, Your Honor.

Clearing up one basis fact matter, the land in dispute can be divided into two types.

A comparably small portion of it was under the channel that is being disputed as to whether or not it was revolted.

The balance of it, upstream was in the original bed of the river and I submit this creates two different problems.

My concern here is apply to the riparian.

Being very candid, if the Court had not starting with Barney v. Keokuk, handed down a line of decisions under federal authority taking the ownership of the bed from the riparian and giving it to the State.

We would not be here today, because all States except Louisiana adopted the Common Law, and there was no question as to what the Common Law meant.

It was only when the Court said the States own the beds but they may decide what disposition are going make of them, that we found ourselves in the situation we are in today.

On that basis, Bonelli becomes very important because it points the way to a return to what was the law of the land and it should be pointed out that in 1876 when Barney was decided, 38 states had already been admitted to the Union and in the territories not yet granted Statehood.

It is safe to assume that the principle riparian land had been occupied.

Justice William H. Rehnquist: Did the Court in Barney say what its authority was for deciding the matter as a federal question?

Mr. Robert Mix: It did not, Your Honor.

Justice William H. Rehnquist: Was it a diversity case?

Mr. Robert Mix: It was not as my understanding -- it could have been, it was a railroad case and the railroad might not have been a resident but the case does not say that.

Justice William H. Rehnquist: It conceivably it could have been in this Swift v. Tyson days, isn’t it?

Mr. Robert Mix: I am not familiar with the case, Your Honor.

Again, by 1876 most of the important riparian land in this country was occupied by riparians; and then Barney v. Keokuk was handed down and the riparian started to have his rights taken away from him.

And again, emphasizing the due process aspect, there is even more than that.

There is the problem of the Court taking jurisdiction a hundred years ago and if it is now are going to be declared that the Court does not have jurisdiction, the riparian is left at the mercy of the states.

And there is a very practical aspect of this.

Stating this hypothetically, but it is very real.

We take a riparian in State A, and State A Supreme Court has decided as Oregon has and as Mr. Herman says that the riparian has no right to below high water.

Immediately across this navigable river is State B, and State B is ruled that the riparian owns the middle of the stream.

They are both under the Common Law; they are both under applicable constitutions.

How in that situation do we explain to A the State can actually come in and take the portion of the bed in front of your river or of your property.

Sell it off so as long as it does not interfere with navigation and let us take between high and low of the water for example.

Someone can sell it in, build a building and you A have no rights left.

Now there at least, while Bonelli is in dispute here, there is certainly one thing said in Bonelli that should not in my judgment be in dispute.

And that is that riparian thus is important, and there is no reason under our jurisprudence pursuing to a riparian, you do not occupy the same status as other property owners in this country.

There is no reason to discriminate against the riparian when the courts are dedicated to protecting the property rights in other types of situations.

The common law as it applied until at least 1876 would resolve all of these problems.

We would not have argue -- yes Your Honor.

Justice John Paul Stevens: Mr. Mix, could you help me a little bit on the federal question?

You argue that a uniform role is desirable, but your theory in federal jurisdiction as I understand it is that there was their patents involved and the equal-footing doctrine matter of fact the river is navigable.

Those are your three bases for federal jurisdiction.

Would you explain to me what is the relevance of the fact that patented land involved?

Mr. Robert Mix: Referring to at least two decisions of this Court, the Borax Limited case and the Hughes case.

Justice John Paul Stevens: The Hughes they are construing the patent of the prior owner I believe, are they not?

Mr. Robert Mix: Yes, Your Honor.

Justice John Paul Stevens: But you are not arguing any basis of construction on it prior owner of this Fischer Cut, are you?

Mr. Robert Mix: We are contending Your Honor, yes.

We are the owners by mean conveyances of the property, which was originally patented out by the Federal Government.

And it is our position that when that property was received from the Federal Government as part of it the riparian rights passed, and that we have succeeded to those rights by the mean conveyances.

And that this a matter of Federal Law in interpreting that patent that the State cannot come along and say, “Now even though you have a federal patent, you have got nothing beyond the high water mark”.

Again, very briefly, the Common Law if it is applied we will not have these problems of avulsion, what is navigable, it is a very simple matter to determine the head of tide water.

Turning briefly to the State the matters of the State has raised.

The law goes back to the Romans, that if a river changes its channel and flows over private property, the private land owner does not lose his title.

We are not talking about riparian rights, we are talking about the law of submergence.

And the riparian continues to maintain title subject to the public navigational servitude and disagreeing with California’s position, the State does not need fee title to the bed to protect the public and we know this is true, because approximately 20 states within this country the State has declared or has adopted the Common Law and the riparian owns the bed.

And there is no record to my knowledge of the riparian successfully interfering with the public rights.

Unknown Speaker: And the Oregon courts decided likewise in this case, with respect to the avulsive channel.

Mr. Robert Mix: Yes, to the avulsive channel, yes Your Honor, that is correct.

And this is an illustration of the lack of need of fee title in the State and what we are disputing here really is proprietary rights of the riparian on the one hand versus the right of the public to use the water on the other.

And there is no real conflict except that one is created hypothetically by saying, well, we hold it in trust but I submit that is a misapplication of the trust doctrine.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.