PHILLIPS PETROLEUM CO. v. MISSISSIPPI
ORAL ARGUMENT OF EUGENE GRESSMAN ON BEHALF OF PETITIONERS
Chief Justice William H. Rehnquist: We will hear argument this morning in No. 86-870, Phillips Petroleum Company v. Mississippi and Saga Petroleum.
Mr. Gressman, you may proceed whenever you are ready.
Mr. Gressman: Than you, Your Honor.
Mr. Chief Justice, and may it please the Court:
This is an equal-footing case.
It arises out of the fact that Mississippi became a member of the Union in 1817 on an equal footing with the original 13 states.
The "equal footing" doctrine in this context means that each new state that enters the Union, like Mississippi, acquires sovereign title from the United States to certain underwater lands to be held in trust for the benefit of all the public.
Now, in this situation, and in an unbroken line of decisions of this Court, dating back 145 years, to the case of Martin v. Waddell, this Court has uniformly stated that the sovereign title that attaches to a subsequently-admitted state, relates only to lands beneath navigable waters that are usable by the public for commercial purposes of navigation or other commercial activities, such as fishing.
This has been the unbroken line of authority in this Court, that state sovereignty equals title to lands under commercially navigable streams, rivers and lakes.
And by "navigable", this Court has always meant "navigable in fact".
Now, it is our position that the decision below by the Mississippi supreme court is diametrically opposed to this long line of authority in this Court.
For example, on page 10A in the Opinion below, as it appears in the Appendix to the Petition, the supreme court of Mississippi says that the top of the page that,
"It is our view that as a matter of federal law, the United States granted to this State in 1817 all lands subject to the ebb and flow of the tide and up to the then-mean high water liable without regard to navigability. "
Now that is incorrect; it is inconsistent; it is in conflict with every decision that this Court has ever rendered.
He cites, for example, the court cites Illinois Central Rail Road Company v. Illinois.
One turns to that reference, that citation to the Illinois Central case and we find the Court announcing that
"ownership by the crown... and therefore, by any sovereign State, of title to lands under waters, is founded not upon the existence of tide over the lands, but upon the fact that the waters are navigable. "
Unidentified Justice: Mr. Gressman, excuse me.
Is it not possible to read all of those cases as extending the doctrine rather than limiting it; that is, as saying,
"if waters are navigable, the. "
"doctrine applies, whether or not the oceans' ebb and flow extends to those waters. "
Is that interpretation not... although if the ebb and flow does extend to the waters, the "trust" doctrine does extend to the waters, the "trust" doctrine applies despite their non-navigability.
Is it not possible to interpret all of... is there any of those cases that would be inconsistent with such a theory?
That is, navigability is the extension of the "ebb and flow" jurisdiction?
Mr. Gressman: No, Your Honor, I do not think that is a fair reading of the Decisions of this Court.
I do not think that this Court has ever addressed a case before today where all that you had were non-navigable waters plus a tidal influence.
In every case--
Unidentified Justice: We have not addressed it either way: we have not said "yes", and we have not said "no".
Mr. Gressman: --That is true, but I think that if you look at the purposes of the "public trust" doctrine, this Court has consistently said that the purpose of the doctrine, the purpose of the "equal footing" doctrine, is premised on the public need to use the waters as navigable highways of commerce, and that is the critical fact that justifies reading the Decisions of this Court as meaning that, if you have a non-navigable body of water that happens to be subject to tidal influence, that kind of underwater land can never become part of the public trust domain for the very reason that there is no purpose served; there is no commercial navigability that is possible.
And therefore, the reason--
Unidentified Justice: What do you do about the last ten feet of the ocean, near the shore, which last ten feet are not navigable?
Does that mean that that portion is not subject to--
Mr. Gressman: --Certainly not, Your Honor.
Unidentified Justice: --And why is that?
Mr. Gressman: Every navigable body of water, be it the ocean, the Mississippi River, or any other large body of water, has at its shore, or at its edges, a non-navigable shoreline.
Unidentified Justice: Right, now, how do you know where the ocean ends?
Why is it not reasonable to say that the ocean ends at the point where the ebb and flow stops?
Mr. Gressman: Because--
Unidentified Justice: Once you have accepted the principle that "navigability" is not the test... as you just have... you have to decide where the ocean ends: why does it not end where the ebb and flow start?
Mr. Gressman: --There are various explanations of that.
That is a natural phenomenon, of course, and if the body of water is subject to tidal influence, such as an ocean, one can measure the extent of that navigable body of water by the mean high water mark of the tide.
That is not to say that you are granting state ownership of the entire body of water because of the tidal influence, because you are simply measuring the inner boundary of that body of water by the tide.
At the same time, you see, this was part of the confusion that grew out of the English experience where all navigable rivers, due to the geography of England, were the same as tidally-influenced waters: the tide ebbed and flowed to the ends of most of the navigable rivers.
And so it became... a synonymous expression of the royal ownership of the navigable of the tidally-influenced waters of England.
But we found in this country that that kind of reliance or reference to tidal influence certainly does not explain how the state gets domain over fresh-water streams that have no tidal influence.
And it took a number of cases, particularly the Genesee Chief case, which dealt with the Admiralty jurisdiction, to dispel the notion that the critical element with respect to the extent of federal admiralty jurisdiction extended only to those rivers that were tidally influenced.
Another point, Your Honor--
Unidentified Justice: Mr. Gressman, certainly Chief Justice Taney's Opinion in Genesee Chief, as Justice Scalia says, extends Admiralty jurisdiction to navigable waters that were non-tidal, there is nothing indicating that all tidal waters were not also included.
Mr. Gressman: --As long as they were navigable.
Unidentified Justice: Well, but I do not... when you say that Admiralty jurisdiction extends to "tidal waters", and then you go on and say
"even if they are not tidal, it extends to them if they are navigable. "
I do not know if the necessary inference is that the tidal waters which are not navigable are excluded?
Mr. Gressman: Not necessarily, as long as they are navigable.
Take the Mississippi River, for example.
And this is the problem... one of the problems that Genesee Chief was talking about: you take the Mississippi River.
Now, the Mississippi River is navigable for 1,000 miles, but the tidal influence is only for 30 miles up the river.
Now, if you were to say that the public domain or Admiralty jurisdiction extends only for 30 miles, as long as there is a tidal influence, that made it impossible to extend Admiralty jurisdiction to the remaining navigable port... freshwater portions, of the Mississippi River.
And this is intolerable.
Unidentified Justice: The collision of the Genesee Chief took place on Lake Ontario, I thought?
Mr. Gressman: Well, but I think that an example, perhaps, is better shown... I think he talked about examples of various rivers in this country, like the Mississippi, but I think that affords an example of what he was talking about.
Let me also add that what we are dealing with in this case is not a navigable body of water that happens to have a non-navigable shoreline.
What we are talking about here is a discrete, inland tributary that contributes fresh water from the uplands and flows into a navigable body of water known as the Jordan River.
Now, it cannot be said that the "public trust" doctrine was ever designed to extend public ownership up into interior streams completely surrounded by private riparian owners, streams that do not constitute part of the shoreline of a navigable body of water.
I give an example of that from Justice Fields' concurring Opinion in the Knight v. U.S. Land Association case, where he pointed out that it would be absurd to suggest that the Chesapeake Bay, which obviously is a navigable body of water tidally-influenced, that you would consider as part of Chesapeake Bay, the Potomac River as far up as the tide affects the Potomac River, and it does affect the tide all the way up to Washington, D.C.--
"it is absolutely absurd to say that the Potomac River is a part of the shoreland, or the boundary, of the Chesapeake Bay; that the tidal influence that is effected on this independent river, or stream, must stand or fall on its own navigability, not derivative from the body of water into which it flows and is not... certainly, does not constitute part of the shorelands or the tidelands of the navigable Chesapeake Bay. "
And he said,
"It was incredible that anybody should suggest that. "
Yet that is exactly what the State of Mississippi is claiming here: they are claiming that, because this little, discrete, independent drainage stream that has no more use, no more function than to drain the heavy excess rainwater off the uplands, that because that has some tidal influence, therefore that must be considered part of the public domain, as if it were constituted some kind of a shoreland or a tideland or a tidewater of some other concededly navigable body of water.
The State of Mississippi has never revealed what navigable body of water these little, discrete streams are a part of.
Are they a part of... are they a tideland of the Jordan River, or are they the tidelands of the Bay of St. Louis?
An inlet of the Gulf?
Or are they the tideland of the Gulf of Mexico, which is only five or six miles away?
We do not know.
Unidentified Justice: Of course, Mr. Gressman, under their theory it really does not matter, does it?
Mr. Gressman: Well, it does not matter except to say that it is totally incorrect as a statement of the basis on which you impose public trust dominion.
Public trust dominion, as this Court has said over and over again, depends upon the navigability of the body of water over which the state seeks this trust dominion.
And now, if it is a true tideland; if it is a shoreland; a mudflat; a beach of a navigable body of water, that need not deter us because that is simply a physical fact that most navigable bodies of water do have non-navigable shorelands... tidelands, tidewaters... however you want to describe them?
Unidentified Justice: Mr. Gressman, the Submerged Lands Act, of course, has language that your opponent suggests affects the resolution of the problem: it says that all lands permanently or periodically covered by tidal waters are included as lands beneath navigable waters.
Do you think that that has some bearing on this case?
Mr. Gressman: No, Your Honor.
The submerged land act... and this was fully explored, by the way in Justice Rhenquist's Opinion in the State Land Board v. Corvallis Company in footnote no. 4 of that Opinion, at 429 at page 371 that the effect of the Submerged Lands Act merely was to confirm the states' title to beds of navigable waters within their boundaries as against the United States claims.
And it does not alter the scope or effect of the "equal footing" doctrine.
And quoting from the Bonelli case, which in other respects was overruled in Corvallis, quoting the Bonelli case, this Court stated... and I think this is a critical restatement of the... applicable law here:
"A state cannot base its claims to lands... that means underwater lands... that are unnecessary to a navigational purpose. "
Now, that means that the state can claim domain only over those waters considered by and of themselves that are necessary to serve as public highways of commerce a navigational purpose... a commercially navigational purpose.
And that is the whole history; that is the whole meaning; that is the whole rationale... for the "public trust" doctrine, which has been incorporated into the "equal footing" doctrine.
And the Court below simply turns away from that long history and states that lands... that title: property title, can be based solely upon the ebb and flow of the tide without regard to navigability.
That is just totally inconsistent with this Court's long line of decisions.
I do not know any case that has ever said that you can base public title solely on the basis of the ebb and flow of the tide.
Unidentified Justice: Oh, no.
I do not think it says you cannot, either.
Mr. Gressman: Well, the inference is that if, from the fact that, if public title, public trust title, is the equivalent of navigability purposes, shall we say... that necessarily excludes from the public trust concept those waters that are not suitable for commercial navigation.
And that is what this Court must have met in Illinois Central, and in other repeated declarations when it said that, "tidal" depends not on
"ebb and flow of the tide. "
but on the "susceptibility to commercial navigation".
And that is the whole reason behind the doctrine, that is, to preserve the highways of commerce.
Unidentified Justice: But that was not the reason.
That was not the sole reason at common law, Mr. Gressman.
There were all sorts of things that attached... in particular, fishing rights, whether it was navigable or not... the fishing rights in ebb and flow waters belonged to the king, and not to private owners.
Mr. Gressman: No, Your Honor, the English common law, going back as far as 1604, in the River Banne case... and that has never been questioned in subsequent cases as far as I know... stated that there is a clear distinction between a navigable water and a non-navigable stream.
And that the king owns and controls the navigable waters, but the non-navigable waters are subject to private riparian ownership, and that has been the history of the common law in this country.
Unidentified Justice: Even if the tide reaches them?
Mr. Gressman: I would say
"yes, if it is not navigable by virtue of the tide reaching them. "
Unidentified Justice: But if you read Chief Justice Taney's Opinion in Genesee Chief, you get the impression that at least that Court thought that navigability and tidal characters were coterminous in England.
Mr. Gressman: Well, they were because of the peculiar geography of England... such a small country that all this was set forth, explained not only in Genesee Chief, but down through the years and Illinois Central repeats this history again--
Unidentified Justice: But then you never would get a situation in England where the river was navigable but non-tidal, or tidal but non-navigable.
Mr. Gressman: --Possibly not, but that was... that situation did not exist in this country.
I mean, it was an entirely different situation, because here, as I used in the Mississippi River example.
You have a certain portion of it that is both tidal and navigable.
Whereas above the tidal influence, you have waters that are not subject to the tide.
Unidentified Justice: Yes, but what I am uncertain about is how good an authority your River Banne case in England is in 1604?
Which simply is applying the "public trust" doctrine in England where the two were really coterminous?
Mr. Gressman: Well, even in England, I suppose there are little streams... discrete little steams... tributaries, that are not navigable.
I mean, that is the way Nature is.
I mean, they can... Nature makes these large, navigable bodies of water by having a series of discrete, little streams and rivers.
And that reference appears in a lot of the early common law cases, that it is these discrete, little streams and rivers that do not pass through the control of the Crown, but they are reserved for the private riparian landowner, and that has been the history in this country.
The little streams that run through farmlands, or somebody's back yard; a little creek... that is not subject to state control.
And if it just happens to have... unless it rises to the level of navigability.
Navigability is the one criterion that is consistently referred to as the test of the "public trust" doctrine.
I wish to reserve the rest of my time for rebuttal.
Chief Justice William H. Rehnquist: Thank you, Mr. Gressman.
We will hear now from you, Ms. Sones.
ORAL ARGUMENT OF KATHY D. SONES, ESQ. ON BEHALF OF RESPONDENT
Kathy D Sones: Mr. Chief Justice and may it please the Court:
The case, as Mr. Gressman stated, is one of the "equal footing" doctrine and the limits of each state's public trust, the question can be answered when we review these two doctrines together.
Each new state upon entering the Union did so on an equal footing with the original 13 states and received all lands that were subject to the ebb and flow of tide regardless of the navigability of the water.
Each new state could define the nature of her boundaries and the physical extent of the public trust lands, as the original 13 states did.
Each of the original 13 recognized a public trust interest to shorelands that were subject to the ebb and flow of the tide and then defined the extent of the public trust shorelands either judicially or legislatively.
The State of Mississippi's main concern is to preserve the ownership of the lands in question for the use and benefit of the public and this, by necessity, included the development of mineral resources.
The ownership of the properties in question remained unchallenged until these leases were issued on these state waters for ail and gas purposes.
At that time, the individuals who owned the lands adjacent to these tidelands sought to take these tidelands from Mississippi's public trust lands.
The State then proceeded to defend its title in these lands, and this case is significant not only to Mississippi, but to all states which have a coastline.
This case can potentially impact thousands of acres nationwide where states have relied upon their theories of what they owned in their public trust lands.
Unidentified Justice: Well, Ms. Sones, I guess the... Petitioners here had been paying taxes on these lands all these years on the assumption they owned them?
Kathy D Sones: Your Honor, the lower court ruled on the issue that the payment of taxes was not at issue in this case simply because--
Unidentified Justice: That may be, but is it not correct?
I mean, the assumption of everyone had been that the lands had been owned by the Petitioners for the years since Statehood and before?
Kathy D Sones: --Justice O'Connor, it is true that the Petitioners allege that they had paid taxes on the lands in question, but the State's--
Unidentified Justice: Well, and they held some titles that purported to cover the lands in question?
Kathy D Sones: --The title which they had were quitclaim deeds... in the nature of quitclaim deeds, by Acts of Congress.
Unidentified Justice: And they had paid taxes on it and that was the common assumption until the State issued the mineral leases?
Is that right?
Kathy D Sones: That was their assumption.
Unidentified Justice: Well, is that right?
She is asking just a fact.
Kathy D Sones: It is correct, Your Honor.
Unidentified Justice: Yes, thank you.
Kathy D Sones: One fundamental principle of law that we are concerned with here--
Unidentified Justice: It is a long time... it is over 150 years that they have been paying taxes, is it not?
Kathy D Sones: --Your Honor, we would assert that the payment of taxes on these lands really did not affect what ownership that the State had in these properties.
Unidentified Justice: Yes, but the State of Mississippi or its subordinate municipalities gladly accepted the payment of taxes?
Kathy D Sones: The municipality, even though it may have accepted payment of taxes on these properties, the lower court ruled that this issue did not resolve the question as to the title.
Unidentified Justice: I know what the lower court ruled, but the fact is there.
And you cannot overcome it, can you, as a factual matter?
If you prevail in this case, I suppose those taxes will no longer be paid.
Kathy D Sones: On these 42 acres, they would not be.
Unidentified Justice: Well, do you not suppose that if we were to Affirm, there would be additional lands that are now in private hands, or use, that Mississippi would in the future claim as part of its public trust?
I suppose that we would not expect the State of Mississippi to stop with these 42 acres.
Undoubtedly there would be other lands in the State that Mississippi would extend its claims to, if we were to Affirm?
Kathy D Sones: Your Honor, this is not a new issue in the State of Mississippi.
The State has always claimed--
Unidentified Justice: But is that correct?
Kathy D Sones: --Your Honor, there would be other lands that are affected by this.
Unidentified Justice: Yes?
How much land do you suppose, in all?
Kathy D Sones: The State of Mississippi currently has at least around 600 acres that are tidally-influenced.
We do not suggest that this would change any rights of ownership that these people have in them.
These are lands which the State claims by virtue of the ebb and flow of the tide.
We only have the one other case that is at issue with this one, where the same issue is involved.
So as far as we know, the stability of titles will remain as they are with the exception of the one other case that we have.
Unidentified Justice: Ms. Sones, with respect to the 42 acres that are in dispute here, would taxes paid on that as a separate parcel, so that a separate tax payment was made for lands entirely subject to tidal influence, or was it just a part of a larger parcel?
Kathy D Sones: These lands were not issued separately.
They were all one big parcel.
The parcel that Petitioners own would have been in the nature of 640 acres, more or less, and they would have paid taxes on the whole amount, without any exceptions to this.
Unidentified Justice: And now 42 acres of that 640 are being disputed by the State?
Kathy D Sones: Yes, Your Honor.
Unidentified Justice: And the State did accept the money as a tax payment, did not understand that it was tendered to purchase the property, did it not?
Kathy D Sones: No, Your Honor, these were donation claims where the Petitioners actually got their property.
To determine the property rights of states and of individuals in the Public Trust area, we must look to the law of this nation as it existed in 1817 when Mississippi came into Statehood.
Mississippi came into Statehood on an equal footing with the other states, and title to the lands which the federal sovereign held in trust vested in Mississippi at that time.
The public trust was created and funded and title to these lands in the trust became the property of Mississippi.
Mississippi adopted the common law of England which divided lands into three categories.
Lord Hale in De Jure Maris, stated that there were fresh water streams, the seabed, and tidal waters.
The tidewaters at page 378 included,
"arms and creeks of the sea so far as the ebb and flow of the tide, as well as the foreshore between the high water mark and the low water mark. "
In reliance upon the English common law, 14 states use the main high tide line in determining their line of ownership.
Some states use the low water line; and other states... the other coastal states... use some variation of the main high tide line.
These compilations can be found in a 1960 report that Colonel Gee made to the American Society of Civil Engineers.
As the Coastal States' amicus brief indicates, there is no uniformity in the law as to what each state has done with the lands under its public trust.
The lead case in this area is that of Shively v. Bowlby, an 1892 case which discussed at great length what the common law of England purported to do.
The test asserted by Petitioners is that of a "navigability-in-fact" standard, something that was added once the propellered Genesee Chief case was handed down.
And this was to give the Western interior states public trust lands which they did not have since they did not have a coastline.
Shively, in summarizing the original 13 states law, made it clear that there was no uniformity in what each state had done with the lands under its tidewaters within its borders, but clearly stated at page 341,
"each state has dealt with these lands according to its own views of justice and policy, reserving its own controls over such lands as it considered for the best interest of the public. "
"Great caution is necessary in applying precedents in one state to cases arising in another. "
Mississippi has always used the "ebb and flow" rule, and employed it to the parcels here in question.
All of these parcels, these 42 acres, have daily tidal influence and are truly
"arms and creeks of the sea. "
as discussed in the treatise discussed by Lord Hale.
Every navigable waterway has certain areas which are not navigable in fact, as Justice Scalia indicated.
There would be some areas close to the shore; there would be estuaries which would not be navigable... even on a fresh water river, there would be areas near the river bank which would not actually be navigable, but this does not take away the definition of a navigable waterway.
The law looks for certainty, and there is certainty to the main high tide line which Mississippi uses.
By taking the main high tide line, a finite line is established by the use of surveying instruments, by the use of tidal datums over an 18.6 year period; and to use any other rule in our State to determine where the ownership of the State lands ends, just would not be consistent with the public trust lands in the decisions of our State.
Unidentified Justice: Let us not exaggerate it too much: there is a certain amount of... a degree of uncertainty, in the "tidelands" rule as well.
I mean, to determine how far up a river the tide actually ebbs and flows... I assume it diminishes little by little until there is finally one molecule of water that moves up and down.
That is not a very easy thing to calculate, is it?
Kathy D Sones: It is not an easy thing to calculate, Justice Scalia, but it can be done.
It is something that the National Ocean Survey does by the use of tidal datums by gauges they place in the water, and these... the actual boundaries of the main high tide line can be established by the use of these gauges and by the use of photogrammetry, which is the use of taking aerial photographs and actually marking out where the tide line would be established, and this is done by a metes and bounds description.
It is a finite description of how far the tidal influence reaches.
This is done over a period actually over 18.5 years for the tidal epic, but this is something that can be done by watching the gauge rise and fall every day, and they take the mean high tide line of all the high tides and the low tides together.
Unidentified Justice: May I ask you a question... excuse me?
We are talking about in this case tributaries to the Jordan River, is that right?
Kathy D Sones: These are tributaries on the east bank of the Jordan River... I am sorry, the west bank of the Jordan River, and this land is bounded on the south by Bayou LaCroix, which is a navigable, in-fact, waterway.
Unidentified Justice: Now, is the Jordan River a fresh-water river or a salt-water river?
Kathy D Sones: The Jordan River is salt-water river.
Unidentified Justice: And are the tributaries also salt-water?
Kathy D Sones: These tributaries are also salt-water.
They, like any other waterway, also have fresh water that comes into them by drainage... you know, every time it rains you have a runoff.
And so, at times, these rivers may in fact, be more fresh-water than salt-water.
Unidentified Justice: To the extent they contribute anything to the Jordan River, are they not fresh?
Kathy D Sones: They are salt-water as... at times they would be fresh-water.
Unidentified Justice: To the extent they contribute water to the Jordan River, are they not entirely fresh?
Kathy D Sones: To the extent they contribute to it, the Jordan River backs up into these tributaries.
Unidentified Justice: So that it is the effect of the backup that raises the level.
Well, would it not be possible that a tributary that your rule would apply to would be made up entirely of fresh water?
And just have the tidal influence raise the level of the water somewhat by reason of the backup?
Kathy D Sones: It is possible that they could be mostly fresh water, if you go for a long period of time without any rain, then the salinity content of any of these areas would be very high.
These would be times--
Unidentified Justice: Well, I suppose in that case, they probably would not get much influence from the tide, either, would they?
Kathy D Sones: --Well, the tide would not change, since it is coming in from the Gulf of Mexico.
The tidal influence would always be the same.
It is the amount of the fresh water, the actual runoff form the rain that would make a difference.
Unidentified Justice: What is the purpose... and your opponent argues that the purpose of the "public trust" doctrine should be kept in mine, and it focuses on discrete bodies of water that can be named either as "bays", and so-forth... what is the purpose of the "public trust" doctrine as to what we are talking about in this case?
Kathy D Sones: The "public trust" doctrine is used in Mississippi and the Record indicated what interest the public actually has in this land.
There were testimony of at least seven witnesses who indicated that they had fished in these waters, in these 42 acres.
They had fished for some salt water fish, including flounder and bluegill and catfish, and these areas were used by the public at least for 50 years, by one witness.
Another witness stated that the mouths of the little bayous were fished because the fish would come out with the tide.
These also were used by the public for hurricane protection of their vessels.
When a hurricane was coming in, everybody would take their boat in and hide them in some of these estuaries that are in question.
They were used for loading dock... well, there was a loading dock adjacent to one of these parcels where actually one of them was used to haul paper wood and pulpwood across these waters.
The parcels were designated in the Record as a
"small bayou, a bayou, an inlet, a bayou with several tributaries, and as a channel. "
But all of these waterways connected to a navigable, in-fact, waterway: the Bayou LaCroix or the Jordan River.
So they are all actually "creeks of the sea".
"arms or creeks of the sea. "
They are important estuaries in that their fish and other aquatic life that grow and prosper, the waters with their underlying soils have historically belonged to the people of the State of Mississippi.
Unidentified Justice: Ms. Sones, if the decision below was correct, that the public trust land extends even to discrete, separate, small tributary streams, conveying fresh water into a tidally-influenced area, apparently, according to the brief of the American Land Title Association as amicus, if that is correct, there are literally millions of landowners throughout the United States who would be divested of their property contrary to the understanding and expectation of those owners and the title insurance company that have insured their title through the years.
Is that a concern that we should we should have in viewing this decision?
: Because it would extend, of course, beyond the boundaries of Mississippi.
Kathy D Sones: It is a factor, but not one that we feel is something that would actually change land titles.
For the states that have been using "ebb and flow" as the test of ownership, there would be no change in the title... the title, to tidally-influenced waters.
Their assertion is that it would impact on titles, but in Mississippi, this has always been the law that we use the "ebb and flow" test.
Because of this, we do not feel that it will disrupt titles in our State or others, as they have indicated.
Unidentified Justice: How deep are these bayous?
Are they as deep as the one in Louisiana?
Kathy D Sones: These bayous... some of them.
Some of these bayous are--
Unidentified Justice: That is pretty deep.
Kathy D Sones: --are I would say anywhere from two feet to four feet on up to 15 feet... the Jordan River itself is about 30 feet deep, and it is commercially navigable.
Unidentified Justice: But some small bayous are also deep?
Kathy D Sones: And some of these are also deep, particularly when the tide comes in.
They are bayous just like Louisiana's bayous.
The Submerged Lands act of 1953, which was discussed earlier, we feel confirms the State's title in tidally-influenced waters to the main high tide line.
We do not assert that this changes any title that the State has.
This is just a confirmation of what Mississippi already had in its tidally-influenced waters.
There additionally were instances in the Record which show that a 14 foot flatbottom boat could get in on these waterways and actually navigate on them.
These were people who came in to fish and to swim or to bathe.
These were uses that the public has made of these areas and if the public is deprived of these areas, we are... this will undermine an important right that they feel they have in these 42 acres.
We are looking to make sure that our land, as we have established it, the main high tide line, is used in this case, because the public needs to know where the definition of the boundary is.
This is something that they have always thought they had by virtue of the fact that testimony had revealed that they had gone up in these waterways and they have used it for all sorts of purposes, particularly fishing.
The test asserted by Petitioners, the "navigable-in-fact" test, was a test that was applied to interior waterways.
Now, because these two waterways which we have in question here, the Jordan River is a "navigable-in-fact" waterway; the Bayou LaCroix on the south boundary, is also navigable.
They do not assert any particular way to define where the cutoff will be.
We would have to employ some other arbitrary rule on these waterways to take them out of the public domain, such as the quantity of tonnage, or the depth of the waterway, or perhaps the type of vessel that could navigate on the waterways.
Unidentified Justice: And anyway for some tributaries further up the Mississippi, are you not... or is the Mississippi tidal... throughout the State?
Kathy D Sones: The Mississippi River, as Mr. Gressman indicated, is tidally-influenced up about 30 miles.
Unidentified Justice: So above that you are going to confront this same problem anyway.
It is not as though you are coming out the way you want as to... would avoid the necessity of determining where a navigable river ends, and how much of a tributary to a navigable river is part of the navigable river, that is still going to be a problem, is it not?
Kathy D Sones: It is our contention that where you have a "navigable-in-fact" waterway, you will always have some areas that you cannot navigate over.
It might be a few inches toward the shoreline, but if you had determined that it was navigable-in-fact waterway--
Unidentified Justice: I understand that, but are you going to answer my question?
Kathy D Sones: --I am sorry, Your Honor?
Unidentified Justice: My question is, the confusing difficulty you were just referring to, cannot be totally eliminated even if we come out the way you want us to on this case.
It is still going to be necessary to determine with respect to navigable rivers that are above the tidal level where the navigable river ends.
That is still going to be a problem is it not?
Kathy D Sones: That is still going to be a problem, but that is a different type of law employed for fresh water as opposed to tidally-influenced waters.
We would assert that the "ebb and flow" rule would be dispositive of this case because we are using it to mean "high tide line" as our definition of State boundaries.
We respectfully request that Mississippi be allowed to continue our stewardship of the public trust domain over all lands that are tidally-influenced up to the line of the main high tide, and to protect our investment in the future of our State's public lands.
Unidentified Justice: May I ask one other question before you sit down?
When I was asking you before about the fresh water and the salt water, you indicated that some of these tributaries were used for fishing.
I think your opponent's brief said that some of them had also been used for things like cattle grazing and normal pursuits that would not be associated normally with the "public trust" doctrine.
Is that correct as a matter of fact?
Kathy D Sones: There was a witness who testified in the lower court that he had cattle that he saw at times would graze down to some of these areas in question, and also the Jordan River, which is primarily a salt water river, but you would find this on any waterway that also flows from the Gulf of Mexico or any other salt water body where at certain times of the year, if you had a lot of rain, the cattle could come down there and graze, but at other times the salinity content would be so high that it would be impossible for them to drink out of that water.
He also further stated in his testimony that there were wells and other ponds on the land itself for the cattle to graze.
You know, this was just at odd times that the cattle could graze from these waters.
Unidentified Justice: Thank you.
Chief Justice William H. Rehnquist: Thank you, Ms. Sones.
Mr. Gressman, you have three minutes remaining.
Mr. Gressman: Thank you, Your Honor.
I would just say immediately that neither the Jordan River nor these little tributaries are primarily salt-water in content.
There is a very low salinity rate, and they are basically carrying fresh water either from the uplands or further back up the Jordan River area.
But in any event, I would certainly state in further confirmation of Justice O'Connor's query about the impact of an affirmance of this decision upon the many landowners who have for generations thought that they had title to the little streams and rivers that run through their property.
And by the way, Lord Hale, who Ms. Sones quoted, also said, among other things, that
"there are little rivers which are private forming no part of the King's Highways. "
Again, I reiterate, that the king's highways... the public highways today, are devoted... are there for the purpose of carrying on the commercial activities of the public, be it navigation, or fishing or whatever.
And when Ms. Sones refers to the fact that there was an occasional fisherman engaging in fishing operations, he was not doing that as a commercial operation; and in any event, our problem is not what some lonely fisherman may do today, it is what was the purpose?
Was there a commercial navigability purpose to these lands in 1817?
Because that is where the federal question begins and ends, and we are concerned only with whether these lands, underwater lands, were commercially navigable in 1817 at the time of Statehood?
And what has happened thereafter is of no consequence in determining that federal question.
Now, with respect to the impact of this: there are untold numbers of landowners in Mississippi whose title to non-navigable, little streams running through their property will be put in jeopardy.
More than that, there are before this court in the form of amicus curiae all twenty-two coastal states.
Upon the Affirmance of the Mississippi court doctrine--
Chief Justice William H. Rehnquist: Your time has expired, Mr. Gressman.
Mr. Gressman: --Yes, they would be--
Chief Justice William H. Rehnquist: The case is submitted.
Mr. Gressman: --The case is submitted, right, Your Honor.
Thank you very much.
Argument of Speaker
Mr. Speaker: the opinions of the Court in No. 86-870, Phillips Petroleum Company versus Mississippi and No. 86-939, and a companion case Etsi Pipelin Project versus Missouri will be announced by Justice White.
Argument of Justice White
Mr. White: The Phillips case is here from the judgment of the Supreme Court of Mississippi.
For reasons stated in an opinion on file with the Clerk, we affirm the judgment of the Mississippi Supreme Court.
Justice O'Connor filed a dissenting opinion and she is joined by Justices Stevens and Justice Scalia.
Justice Kennedy took no part in the consideration or decision of the case.