FEDERAL COMMON LAW AND ITS APPLICATION TO DISPUTES INVOLVING ACCRETIVE AND AVULSIVE CHANGES IN THE BOUNDS OF NAVIGABLE WATERS

By John C. Cabaniss*


This article will explore the need and basis for applying a uniform federal common law of riparian rights1 to determine property ownership when a change occurs in the bounds of a navigable watercourse. The declaration of a uniform federal rule is one of two alternatives open to a federal court once it has been established that federal interests require the use of federal common law.2 The other available alternative is the adoption of state law as the federal rule of decision.3

Several areas of potential federal interest will be discussed after the current state of the law in each area is set forth. The proper choice of law for establishing the initial boundary of a federal patent will first be addressed. This will be followed by a review of whether federal or state law governs the riparian rights possessed by one whose property was the subject of a prestatehood federal patent when that property has been affected by a poststatehood accretive4 or avulsive5 change. Then, a portion of this note will focus on the similar but distinct issue of what federal interests are present in determining the type and scope of title acquired by the public land states upon their admission to statehood under the equal footing doctrine.6 This topic is one of recent inconsistent decisions by the United States Supreme Court. Also, the choice of law rule for locating an interstate boundary which has been affected by an accretive or avulsive change will be set forth. Finally, this note will consider what law should be employed when an accretive or avulsive change affects property held in trust by the federal government for an Indian tribe.

I. HISTORY OF LAND AND WATER RIGHTS IN THE UNITED STATES

When the colonies achieved independence from British rule, each of the thirteen original states, as a sovereign, succeeded to all interests in title previously held by the Crown in the waters and riverbeds within their boundaries.7 In comparison, most of the western states were formed out of land that had been held by the federal government in trust for the establishment of future states.8 These western states are termed the "public land states" as a consequence of the federal government's role as sovereign prior to formation of the states.9

Because the public land states were once governed only by the federal government, resolution of certain disputes which might adversely affect the scope of title conveyed by the federal government prior to statehood must be examined pursuant to federal law.10 In contrast, states without a history of federal land ownership do not have this federal involvement. This disparity in treatment accorded to various states has resulted from the diversity of state title histories. Additionally, the varied history of land titles among the states has resulted in a diversity of legal rules for determining ownership of the land beneath the high-water mark of the water in each state.11 In most states, ownership of such land depends upon whether or not the water is classified as navigable.12 If the water is deemed non-navigable, generally, the title to the beds can be held by a private party.15 However, if the water is classified as navigable, then the land is held by most states in their sovereign capacity in order to further the public need associated with navigation and fishery.14

Within the public lands, prior to statehood, the federal government held title to the beds beneath the navigable waters.15 As states were formed out of this land, they were admitted on an "equal footing" with the existing states.16 This admission upon equal footing was held to be constitutionally required so that new states would be admitted with the same sovereign rights accorded to the original thirteen states.17 Further, it was held that this doctrine required the federal government to relinquish its interest in title to the land beneath the navigable waters of the public lands to the new states upon their admission to the union. Although this doctrine mandated a conveyance to the states of the beds beneath their navigable waters on the date when statehood was granted, it did not completely eradicate the federal interests present.19 The determination of what waters were navigable at the time statehood was granted was held to be a federal question to be measured by the federal test of navigability.20 Thus, federal courts decide what subaqueous lands were conveyed to the states upon their admission to the union pursuant to federal standards.

Federal title in non-navigable waters and the beds beneath them continued within the newly formed states.21 This federal ownership complemented the large quantity of land owned by the federal government. The extent of the federal interests created a potential water use conflict between persons who were appropriating water pursuant to state appropriation systems and persons that would subsequently acquire title as federal patentees.22 The appropriators feared that the federal courts might recognize riparian rights in patentees that would diminish their right to an established quantity of water. By adopting an appropriation system of water use, the western states acted to encourage development in an arid region where assurance of a constant water supply was essential to induce settlement.23 To quell state concerns over federal interference with state systems of water allocation, Congress passed the Acts of 186624 and 187025 which gave vested state water use rights priority over the claims of federal patentees.26 These Acts, however, left open the possibility that a federal patentee's riparian rights to the water might be accorded higher priority than the rights of a subsequent state appropriator. Congress acted to remedy this oversight by passing the Desert Land Act of 1877.27 This Act has been held to have severed the unappropriated waters from the federal lands riparian to them.28 This severance was based on the federal proprietary right to the water and allowed the states to establish their own independent systems of water use allocation.29 However, the Act failed to specify what rights, if any, were retained by federal riparian land patentees. The states have contended that the Desert Land Act was nothing short of a complete surrender of federal power over water use rights to the states.30 This assertion of absolute state power was rejected by the Court when it held the Act inapplicable to lands held in trust by the federal government for Indian tribes. This holding was based on the Court's finding that implied in reservation treaties were reserved rights to enough water to permit its use on all irrigable reservation lands.31

Congressional legislation concerning waterways and land riparian thereto has usually been based on the Commerce and/or Property clauses.32 The navigational power, which flows from the Commerce clause,33 has been construed to give the federal government a navigational servitude that extends to the ordinary high-water mark.34 This servitude has been held to be superior to private property interests found to interfere with the federal government's interest in navigation.'5 In contrast to the unquestioned superiority of the federal navigational power when exercised in conflict with a state or individual interest, it is unclear how the property clause applies to the resolution of federal-state disputes.36 In decisions considering reserved water rights for Indian reservation land, the power of the federal government to grant implied reservations has been held to flow from the Property and Commerce clauses.37 The Court in dicta in Paul v. United States38 seemed to accept the view that federal property, acquired without state consent, would be held as if held by any other private owner subject to rights defined by state law.39 This view of the Property clause's scope was repudiated by the Court in Kleppe v. New Mexico.40 There, it was held that, regardless of state consent, the Property clause empowered Congress to exercise "the powers both of a proprietor and of a legislature over the public domain."41 Hence, Congressional authority over the public lands is not controlled by state law.42 However, state law can limit the use of federal property to the extent it does not affect the government's title or interfere with its right of disposal.43

The problems considered by this article arise when the bounds of a water body change. Under both federal and state law, when such a change is deemed to be the result of accretion, riparian owners gain title to any resulting additions to their property.44 Conversely, when erosion occurs the riparian owner loses title to the land that is consumed by the water.45 The application of the accretion doctrine is premised on the rationale that an upland owner's access to the water should be maintained whenever possible without creating an undue hardship on abutting property owners. It has been stated that the effect of the accretion doctrine is to give riparian owners a fee that is determinable upon the occupancy of their land by the river.46 Likewise, title to the riverbed is subject to defeasance upon a reliction by the river.47 In comparison, the avulsion doctrine48 is used to maintain title boundaries where they were prior to a sudden and drastic change in a watercourse even if this results in a loss of accessto the water for some property owners.49 This doctrine is employed when necessary to minimize the hardship that would result to abutting landowners if the accretion doctrine was followed.50 The courts have thus recognized that if followed without exception, the accretion doctrine would on occasion result in an inequitable redistribution of property among property owners following a drastic change in the bounds of a waterway.

II. FACTORS AFFECTING THE USE AND CONTENT OF FEDERAL COMMON LAW

Under Swift v. Tyson,51 the Rules of Decision Act was held to allow the federal courts to develop a general body of common law applicable to all disputes that were not strictly matters of "local law".52 This remained the law of the land until 1938 when the Supreme Court, in Erie Railroad Co. v. Tompkims,53 a suit based on diversity jurisdiction, overruled Swift by holding that state law applied, including state decisional law, unless supplanted by the Constitution or an act of Congress. Following Erie, the test of what law, federal or state, is used in diversity actions has evolved into a consideration of the policies that underlie Erie.54 These policies were held to be "discouragement of forum-shopping and avoidance of inequitable administration of the laws."55 Although at first glance Erie might appear to eliminate any use of federal common law, the Court, on the same day Erie was issued, held that federal common law governed resolution of a dispute between two states involving apportionment of waters in an interstate stream.56 Thus, federal common law does exist.

Before a federal court can adjudicate a dispute, it must generally be demonstrated that either federal question or diversity jurisdiction exists.57 Actions based on claims arising under federal law-Constitution, laws of the United States, or treaties-are within the federal question jurisdiction of the federal courts.58 However, there are several situations where the Court has recognized the need for granting federal question jurisdiction despite the fact that the issue presented did not arise directly from the Constitution, laws, or treaties of the United States. The Court in Clearfield Trust Co. V. United, States59 held that when Congress has not addressed an issue which is "substantially related to an established program of governmental operation,"60 federal courts must fill the existing gaps in federal law according to federal standards.61 Also, in United, States V. Standard, Oil Co.,62 the Court held that the federal nature of the relationship between a soldier and the government required federal common law to govern the legal consequences of that relationship.63 In both of these situations the Court developed federal common law.64 The Court has also held that federal common law can independently supply the necessary federal question jurisdiction since it is included within the constitutional meaning of "laws of the United States."65

Once the source of law is found to be federal, then the federal courts must apply a federal rule of decision. If the issue presented in a particular case is not resolved expressly by reference to the Constitution, laws, or treaties of the United States, then federal common law controls. In applying federal common law, a court must choose whether to adopt state law or develop a uniform federal rule as the rule of decision.66 A test for determining what law to apply has not been consistently used by the Court. However, certain factors have reappeared in the cases. The Court has sometimes used a balancing test which weighs the federal and state interests.67 On other occasions the Court has only focused on a more limited set of factors which it considers controlling while ignoring any comprehensive review of the factors it has previously deemed important.68 This inconsistent approach makes it difficult to predict with any confidence what the Court will find relevant in a particular situation.

In Clearfield Trust,69 the Supreme Court opted for the use of a uniform federal rule by dismissing adoption because it would subject the rights and duties of the United States "to the vagaries of the laws of the several states."70 The Court found the federal interest in having identical law apply to the numerous transactions in federal commercial paper to outweigh the state interest in having state law govern completely the commercial transaction at issue. 71 Despite Clearfield Trust's emphasis on uniformity for cases dealing with federal commercial paper, in Bank of America v. Parnell,72 the Court held that issues regarding rights in federal commercial paper that do not touch on the rights and duties of the federal government were matters to be resolved by state law even though a companion issue was present that had to be governed by federal law.7' Thus, Parnell stands for the proposition that even though the federal government may have an interest in particular property, unless its interests are affected by the decision, state law should apply.

Uniformity, as recognized by the Court in Clearfield Trust, is a major factor which supports the use of a uniform federal rule. In some cases the Court has weighed against the need for uniformity the state interest in having its own law apply because the issue presented was one of traditionally local concern.74 Also, the Court has sometimes considered whether a conflict exists between the application of a particular state law and federal interests.75 In United States V. Little Lake Misere, the Court did not adopt the available state law because it was found to be hostile to the purposes of the federal program at issue.76 However, the Court left open the possibility that a nonconflicting state statute dealing with the same issue might be adopted if a similar dispute arose in another state.77 This approach suggests that the Court desires a case by case appraisal of the interests present. Contrary to the Erie diversity situation where there is a lack of court competence to decide substantive issues, in this situation a court remains free to control the extent and effect of adoption so that federal interests will be protected.78

It has been suggested that a federal court, in deciding whether to adopt state law, should additionally consider the effect of ifs decision on the distribution of power between the federal and state courts.79 Also of importance is the ability of each court system to handle the issue presented. For example, the call for "uniformity" usually is the chief argument in support of establishing a uniform federal rule; yet, the only way a truly uniform rule can be promulgated is by Supreme Court action. This fact precludes the use of a uniform rule in many areas because the Court's workload is so heavy that it does not have the time to develop detailed substantive rules.80 These factors should always be considered by the courts as part of a balancing approach to help determine, as a matter of judicial policy, what law is most appropriate for use in the case at bar.81

III. CURRENT USE OF FEDERAL COMMON LAW

A. Scope of a Federal Grant
The city of Los Angeles brought an action to quiet title in Borax Consolidate, Ltd. V. Los Angeles.82 There, the Court addressed a dispute involving the issue of whether land that had been conveyed under a federal patent was upland or tideland at the time of the federal grant. If tideland, it was erroneously included in the federal patent since upon California's admission to the union it acquired all right, title and interest in the tidelands. Conversely, if found to have been upland, it was properly included in the federal patent. The Court determined that the primary question posed by this case was the extent of the federal patent. Since the question presented involved "the validity and effect of an act done by the United States," it was held to implicate a federal interest.83 Thus, the Court established where the boundary between the upland and tideland was according to federal principles.84 Although the Court in Borax held that federal law governed the scope of title acquired by a federal patentee, in subsequent cases the Court has held that state law controls with respect to the property rights afforded to private owners.85
B. Rights of a Federal Patentee Following an Accretive or Avulsive Change
The Borax holding was expanded by the Court in Hughes V. Washington86 to aid the Court in deciding whether federal or state law applied to determine the ownership of land gradually deposited by the ocean on upland property. In Hughes, the upland property had been conveyed by the federal government to the petitioner's predecessor in title prior to Washington's grant of statehood.87 If the land in question had been accreted prior to statehood, under a uniform federal rule the riparian owner would have been entitled to it.88 Washington claimed that Article 17,  1 of its Constitution provided that it would gain title to any coastal accretions occurring after 1889.50 This was the State's position despite the fact that the Washington Supreme Court had previously rejected that interpretation in Ghione V. State.90

In Hughes, the Supreme Court of Washington reversed its prior holding and found that the State's Constitution of 1889 had eliminated the application of the riparian doctrine of accretion to property riparian to the Pacific Ocean. Thus, the court held that the State held title to all land formed by coastal accretions.91 The case then went to the United States Supreme Court where the applicability of federal law was at issue. The state argued there was no federal interest present and that Borax was inapplicable because it did not deal with riparian rights. Notwithstanding this argument, the Court found that there was no "significant difference" between this case and Borax. Consequently, it held that the question of what rights were included in the initial federal grant was sufficient to justify the exercise of federal question jurisdiction. Moreover, the use of a uniform rule was found to be necessary to protect the scope of the federal patentee's title.92 It was noted that to hold otherwise would leave riparian owners in danger of losing the most valuable feature of their land - access to the water.93

The Court's majority opinion in Hughes relied on Borax in holding that the issue presented required in effect a determination of a federal patent's original scope. In reaching its decision the Court did not discuss or attempt to distinguish Borax and Hughes from its earlier decision in Joy V. City of St. Louis.94 In Joy, a riparian owner, whose title descended from a prestatehood federal grant, claimed that the federal origin of his title implicated a sufficient federal interest to support federal question jurisdiction in a dispute involving ownership of accretions deposited adjacent to his land.95 The Court, however, held that the federal origin of the grant did not by itself present a federal question.96 The Court went on to note that the dispute did not involve the land actually conveyed or an act of Congress. Consequently, the lower court's dismissal for lack of jurisdiction was affirmed. Joy, thus, stands for the well settled rule that federal law should not be applied merely because the United States happens to be a party in the chain of title.97
C. The Type and Scope of Title Acquired by the Public Land States Upon Their Admission to the Union Under the Equal Footing Doctrine
The Court extended the use of federal common law in Bonelli Cattle Co. V. Arizona.98 This ease involved a dispute over land that was included in a prestatehood federal patent to a railroad company. The land was riparian to the Colorado River and upon admission to the union, Arizona succeeded to the federal government's title in the bed of the river.99 Over the years, the river gradually moved eastward engulfing the subject land. As this process occurred the State mechanically acquired title to the land as part of the riverbed.100 When the cattle company acquired its title in 1955, most of the property conveyed by the original grant was under water and, therefore, held by the State. In 1959, a project by the Federal Bureau of Reclamation deepened and rechanneled the river, thereby resulting in the re-emergence of a substantial portion of the original parcel.101 The State claimed this change was avulsive, and argued that title to the land which formed the bed of the river prior to reclamation remained in the state by virtue of the equal footing doctrine and the Submerged Lands Act.102 The cattle company alleged the change to be accretive. Alternatively, the company asserted that even if the change was deemed avulsive, it had reacquired title under the doctrine of reemergence.103 The Arizona Supreme Court, however, rejected the company's position and held the change to be avulsive with title vested in the State.104

In Bonelli, the United States Supreme Court first had to decide whether ownership of the subject land was to be governed by state or federal law. The Court stated its continued adherence to the principle that state law should determine rights in the beds of navigable waters whose title was indefeasibly vested by federal law in the states. It was noted by the Court, however, that the issue was not what rights the state had accorded to private owners, but what type of title the state had acquired under the equal footing doctrine and Submerged Lands Act.105 The Court found that construction of this doctrine and the Act involved a "right asserted under federal law"; therefore, it presented a federal question.106 After an examination of the policies behind the avulsion and accretion doctrines, the Court held that the state had acquired a fee determinable to the land that had gradually eroded into the river.107 When this land re-emerged, the state's interest in the former riverbed was held to be defeased and title reverted to the riparian owner. The Court reasoned that when the water receded from the subject property there was no longer a public purpose being served by state retention of title to the re-emerged tract.108 Further, it was stated that, if allowed, continued state ownership of this property would have allowed the deprived private owner to possibly raise a constitutional objection that the state's assertion of title had resulted in a taking without just compensation.109 This issue was not addressed by the Court because, after balancing the federal and state interests, it held that title to the re-emerged land should be governed by the federal principle of accretion to protect the riparian owner's right of access to the water and to prevent the state's receipt of a land windfall.110

Growth of the federal common law of riparian rights was curtailed and severely restricted when the Court overruled Bonelli in Oregon V. Corvallis Sand & Gravel Co.111 The dispute in Corvallis centered on the issue of whether the State or the Corvallis Sand and Gravel Company owned land which formed a peninsula known as the Fischer Cut.112 The Willamette River flowed around this peninsula, but by 1890 a channel had formed across its neck. During periods when the river's flow was intermediate to high, the new channel would carry part of the resulting flow. In 1909, a major flood occurred which resulted in the entire Fischer Cut being submerged. Subsequent to this change the company used the area in its digging operations for 40-50 years. Oregon brought suit to eject Corvallis Sand from the property claiming that it was owner in fee simple of the disputed land. This claim was based on the assertion that as new beds were formed under navigable waters, fee simple title to them automatically vested in the state as an incident of sovereignty under the equal footing doctrine.113 The Oregon courts used federal common law as set forth in Bonelli to award the disputed land to Corvallis Sand under either the avulsion theory or pursuant to an exception to the accretion rule.114

The Supreme Court in Corvallis held that the state court had erred in treating the equal footing doctrine as the source of a federal interest which required application of a uniform federal rule to questions concerning title acquired by the states from the federal government to the riverbeds beneath navigable waters.115 Not only was this basis for federal question jurisdiction rejected, but the Court also stated that the mere fact a parcel of land had originally been conveyed by a federal grant does not give rise to a controversy arising under the laws of the United States.116 Borax was explained by the Court as only being applicable to disputes involving the location of an original boundary.117 Hughes was not considered since it was not cited below by the Oregon courts. This abrupt change in the Court's analysis resulted in the quick burial of Bonelli as the basis for applying federal common law. Consequently, it appears that disputes concerning land ownership will now be resolved solely as a matter of state law unless a federal interest other than federal origin of title or conveyance under the equal footing doctrine can be established.118
D. Disputes Over Interstate Boundaries
Disputes involving the location of interstate boundaries affected by accretive or avulsive changes have consistently been recognized by the courts and commentators as requiring the use of a uniform federal rule.119 The Supreme Court has held that even though the issue is not governed explicitly by the Constitution or federal statute, federal common law principles of accretion and avulsion must necessarily be developed and used to avoid the problems inherent in adopting state law to resolve interstate conflicts.120 This approach was used in Arkansas v. Tennessee,121 where a river, which indicated the interstate boundary, suddenly changed course. The Court declared that state law would determine the rights of riparian owners within their own state, but that a state could not render a decision that might affect an interstate boundary.122 Since classification of a change as accretive or avulsive can determine whether a state gains or loses property along an interstate boundary, the Court used a uniform federal rule to resolve the issue of what type of change occurred.123

E. Disputes Over Land Held in Trust by the Federal Government
The Courts have recognized a federal interest in protecting lands held in trust by the United States for American Indian tribes. Most of the Indian tribes occupy reservations that were set aside for them by federal treaty or executive order.124 Within reservation boundaries, property and sovereign rights exist that cannot be derogated by state or federal law.125 Furthermore, the existence of reservations and commerce with them is controlled by the federal government.126 In Oneida Indian Nation v. County of Oneida,127 the Court held that the issue of whether the Oneidas had a valid claim to possession of disputed property pursuant to a treaty with the federal government was a matter governed by federal law.

The Oneida holding was recently reaffirmed by the Court in Wilson v. Omaha Indian Tribe.128 In Wilson a dispute arose over ownership of land that originally was included in the Omaha Indian tribe's reservation which was located in 1867 on the west bank of the Missouri River in Nebraska. Following the establishment of the reservation, the river changed course several times with the result that a portion of the original reservation ended up on the east side of the river in Iowa. This land was subsequently settled by non-Indians. The federal government and the Omahas brought suit to quiet title in the disputed lands claiming that the changes in the Missouri river's course had been avulsive and, therefore, the boundaries of the reservation should remain unaffected. The non-Indian residents argued that the changes in the river's course resulted from a gradual process of erosion and accretion, thereby passing title to the east bank riparian owners.129 The Court held that the Indians' claim to the property was to be resolved by federal law citing Oneida to support its holding that questions regarding Indian occupancy of reservations are "exclusively [within] the province of federal law."130 While adopting the Oneida holding that the adjudication of rights involving reservation lands implicates a federal interest requiring use of a federal common law, the Wilson Court held that state law should be adopted as the federal rule of decision.131

The Court reached its decision after considering the factors it set forth in United States v. Kimbell Foods, Inc.132 There it had grappled with a choice between adopting state law or applying a uniform federal rule to govern the relative priority between a private lien and a federally created lien. In Wilson the Court concluded that there was no need to develop a uniform federal rule since an interstate boundary was not in dispute. Further, the Court expressed concern that a uniform federal rule would result in disparaging treatment of the private property owners located next to the Indian reservation. The fear was that they might have their boundary disputes resolved differently than persons who were not similarly located adjacent to an Indian reservation.133 The Court also asserted that state law would be applied in an equitable fashion and that a tribe might gain as well as lose land. Finally, the Court stated that it would not accept "generalized pleas for uniformity as substitutes for concrete evidence that adopting state law would adversely affect [federal interests] "154

IV. ANALYSIS

A. Extent of a Federal Grant
In Borax the Court held that the initial boundaries of federal grants are to be determined according to federal rules of construction. This approach was chosen as necessary to protect private interests acquired pursuant to federal dispositions of property. If state law were allowed to deter mine the scope of federal grants, it could operate to impair the validity of the congressional act which authorized the conveyance. This would run afoul of the supremacy clause135 and Congress' power to dispose of federal property pursuant to the property clause.136 Since disputes involving the extent of a federal grant present questions regarding rights accorded by federal law, federal question jurisdiction is present to govern such disputes.137 It should be noted that Borax was decided prior to Erie and it, therefore, contained no discussion of adopting state law as the federal rule of decision.
B. Rights of a Federal Patentee After an Accretive or Avulsive Change
The Court has left unresolved the direct conflict between Hughes and the Corvallis and Joy line of cases. Corvallis and Joy considered the issue of whether a federal patent provided a basis for federal question jurisdiction, thereby enabling the courts to use federal common law to determine whether a poststatehood change was accretive or avulsive.135 In Corvallis, the Court refused to reconsider Hughes since it was not relied on below. The Court did hint in a footnote that the fact Hughes involved a parcel of land on the boundary of an international sea might have been sufficient to justify the use of federal common law.139 If the federal courts do indeed have the power to determine the future right to accretions on such oceanfront property based upon the federal interests involved in the location of an international boundary, then the equal footing doctrine would be as offended as it is in similar non-oceanfront disputes since federal law has not been applied to govern a change that affected oceanfront property in one of the original 13 states.140 Thus, this distinction lacks merit. Either the prestatehood federal grant is a basis for federal question jurisdiction or it is not, and the weight of authority is that it is not. Therefore, the continued validity of the majority opinion in Hughes on this point is doubtful and it appears to be an isolated decision with little validity after Corvallis.

Joy held that state law should control to determine whether an accretive or avulsive change had occurred when such a change affected land that had been the subject of a prestatehood federal grant.141 In its holding the Court noted that state law could impair the federal patentee's use and enjoyment of his property, but the Court failed to adequately explore the effect of this limitation on state court authority to deny a riparian owner water access. Thus, the Court ignored the possibility that a right granted by federal law could be eroded by state law. This result was supported by the assertion that the Constitution requires, via the equal footing doctrine, that the states established subsequent to our nation's founding acquire the same sovereign rights as the original 13 states. Although the equal footing doctrine does require equality of sovereign rights, it is inevitable, as a consequence of the federal government's initial ownership of large quantities of western land, that the federal impact there will be greater than in the east. The federal government conveyed property by grants prior to statehood in the territories. By virtue of this federal origin of title, the application of federal law is required to determine the extent of these original conveyances.142 The result is a displacement of state rules of construction. In the founding 13 states, this application of federal principles is not required. However, it is not asserted that this federal involvement infringes on state sovereignty, rather, it is perceived as a reflection of the need to protect the scope of the federal title conveyed.

Although at first glance the foregoing analysis may seem to be inapposite to the equal footing doctrine, it might only be the result of the varied histories and not an interference with state sovereignty. The Court has noted that the equal footing doctrine was not intended to destroy all differences but was only intended to insure parity with regard to political standing and sovereignty.143 The state's sovereign rights were not deemed to have been undermined by granting the riparian owner the right to accretions under federal law by the Hughes Court, but Hughes now appears to be little more than an aberration.

The federal jurisdiction in Hughes rested solely on the fact that the petitioner could trace her title to a prestatehood federal grant. This is precisely the type of case where as a general rule state law has governed.144 The Hughes decision was reached as a result of a misplaced expansion of Borax. The Court in Borax explicitly stated that the only issue present was whether the land in controversy was upland or tideland when California was admitted to the union. If found to be tideland then the Court recognized that the State's title would be complete and, therefore, nondefeasable.146 Consequently, where Borax dealt exclusively with the scope of title initially conveyed by federal grant, the Hughes Court attempted to use it to justify a continuing federal interpretation of poststatehood property changes. This approach ignored and placed little weight on the history of state control over real property issues which had long been recognized and protected by application of the equal footing doctrine. Further, as an indication of the Court's brief and faulty analysis in Hughes, the Court there stated that it could choose to select state law as the federal rule but declined to do so by asserting that Borax had held that no such choice should be made in this area of the law.147 What the Court failed to recognize was that Borax was decided prior to Erie when there was no adoption of state law, and, thus, that possibility had not been considered as an option. Consequently, Borax should not have been cited as controlling on that issue.

The Court's real concern in Hughes might have been that addressed by Justice Stewart in his concurring opinion. In it, he accepted the state's power to change and fully determine the laws governing riparian rights. He saw this power as an incident of the state's constitutionally delegated control over real property matters. Justice Stewart did not think this delegation of authority to the states should be manipulated to prevent state abuses. Instead, he found that the needed protection for individual property owners was provided by the fifth and fourteenth amendments' proscription against state confiscation of property rights without just compensation.148 This proposed use of constitutional safeguards to protect valuable riparian rights would have allowed the Court to accord proper deference to state real property law while preventing the type of state abuse which prompted the Court to manipulate the equal footing doctrine. So far the Court has not acted to so extend fifth and fourteenth amendment protections.

A Hawaii federal district court in Robinson V. Ariyoshi149 held that a radical departure by the Supreme Court of Hawaii in its interpretation of well established water law resulted in the taking of private property without just compensation.150 This constitutional violation was found to support the court's exercise of federal question jurisdiction. In reaching this conclusion, the court relied heavily on Justice Stewart's concurrence in Hughes. Also, its finding was based by implication on the assumption that since the fourteenth amendment applied to courts in other areas, that the fifth amendment's proscription against taking without just compensation as applied to the states by incorporation through the fourteenth amendment also applied and limited the state judiciary.151 The taking analysis employed in Robinson by the court has been termed by a commentator as the laymen's view.152 Using this approach, the court quantitatively compared the private property rights possessed before and after the state court's decision. Since the private property rights had diminished, the court held that the state court decision had resulted in an unconstitutional taking of property rights without just compensation. 153

The Hawaii federal court's finding that it possessed original jurisdiction to determine whether the state court's action in this matter was constitutional was rejected by the fifth circuit in Reynolds V. Georgia.154 The plaintiff in Reynolds claimed that an unpredictable decision by a state court had deprived her of fifth amendment rights. Although the fifth circuit accepted the proposition that a state court decision could operate unconstitutionally to deprive a person of their property, it held that this determination was for an appellate court to make. Consequently, the court in Reynolds held that federal district courts are not empowered to hear appellate issues since they only possess original jurisdiction. In support of its decision, the Reynolds court cited Rooker V. Fidelity Trust Co.155 There, the Supreme Court held that a federal district court lacked jurisdiction to hear a claim that a state's highest court had acted unconstitutionally. Thus, although the Robinson decision has not been overturned, it stands alone for the proposition it sets forth.

Without using constitutional safeguards, the Court has attempted on occasion to broaden the scope of federal interests to impose some federal protection for riparian rights.lse In Hughes, the Court implicitly recognized that without federal protection the state judiciary would be able to deprive the riparian federal patentee of the most valuable attribute of her land-her right of access to the water. The Court there relied on Borax in finding that deprivation of this riparian right was not distinguishable from allowing state law to interpret the original extent of federal grants.157 In both instances, if state law were controlling, it would have enabled the state to diminish the value of a grant that was created by federal law pursuant to constitutionally delegated powers.

In conclusion, although absolute equality of treatment for the states is impossible, the Court should require an overwhelming justification for imposing federal common law on the states in an area of predominantly state concern. In Hughes there was some justification as described above for finding federal question jurisdiction but, if allowed on the basis of a federal patent alone, it would be such a broad expansion of jurisdiction that federal regard for the states' right to control real property would be significantly diminished. Therefore, the needed protection might be better provided by the fifth and fourteenth amendment to the Constitution.
C. The Type and Scope of Title Conveyed to the Public Land States Under the Equal Footing Doctrine
Bonelli, like Hughes, was an expansion by the Court of Borax. In Bonelli, the Court held that federal law applied because the issue involved the extent of title acquired by Arizona under the equal footing doctrine and Submerged Lands Act. The Court acknowledged that if the land in question had vested in the state there would be no federal question jurisdiction present.158 However, the Court held that Arizona had not acquired a fee simple to the bed of the river upon its admission to statehood. Instead, it found that the State bad a fee determinable upon the reliction of the water. Thus, when the land in dispute re-emerged, the state no longer had an interest in the property, and it reverted to the riparian owner. This novel approach allowed the Court to sidestep consideration of the assertion that retention by the state of title would amount to a taking without just compensation.159 Additionally, the Court failed to adequately explain why the equal footing doctrine would not preclude this approach. Jurisdiction on these facts boiled down to the fact that the federal government as sovereign had owned the riverbed prior to Arizona's statehood and, therefore, it could determine the type of title conveyed to the state. However, no such federal interest is present in the original thirteen states which lack a history of federal ownership. This is precisely the type of disparity the equal footing doctrine was intended to prevent, and several Supreme Court decisions have held that the new states have the same rights to the soil beneath their waters as do the original states.160

In Weber V. Harbor Commissioners, the Court stated that California upon admission to the union had acquired "absolute property in, and dominion and sovereignty over, all soils under the [waters]" and consequently the state could dispose of title to the beds in any manner it might deem proper.161 The only mentioned limitation on this absolute right was the federal navigational servitude which was not at issue in Bonelli.162 Surely, if Arizona had exercised its right to convey the submerged property to a private owner prior to its re-emergence, the Court would not have found the owner's fee determinable upon the water's reliction. Furthermore, as in Hughes, the Bonelli Court failed to recognize that Borax only applies to questions regarding the extent of title conveyed at the time statehood was granted.

The parties in Corvallis did not request that the Court reexamine Bonelli, but several states in amicus briefs did urge that Bonelli be reviewed and overturned. The Court reviewed Bonelli and found that in Bonelli it had erred in holding that federal common law governed resolution of the dispute there. Accordingly, the Court held that property once subject to state law was not subject to defeasance by operation of federal common law. After Corvallis, it appears that federal law will only be applied to determine the original boundary of property conveyed by the federal government.
D. Adoption of State Law When a Dispute Involves Land Held In Trust by the Federal Government
The Wilson holding reaffirms an Indian tribe's right to an adjudication before a federal forum whenever reservation land is involved in a title dispute. Despite this recognition of the need for federal protection of tribal land rights, the Court did not find it necessary to use a uniform federal rule of decision.163 Instead, the Court found that the Indians' interest in having a uniform federal rule apply was outweighed by a substantial state interest in having its own law apply. One factor that appeared to be important to the Court in making this determination was what it perceived would be the inequity, if it used a uniform federal rule, of having disputes involving private owners resolved in one manner under state law while disputes between private owners and an Indian tribe would be resolved in a different manner with a uniform federal rule.164 In contrast, the Court has not found a similarly substantial state interest in having state law govern disputes between private riparian owners that are situated on interstate boundaries, even though such owners have their disputes which involve the interstate boundary resolved by a uniform federal rule, while neighbors not on the boundary have similar disputes decided under state law. 165

The Wilson Court recognized in deciding whether to adopt state law as the federal rule of decision that it should consider a variety of factors that were relevant to the governmental interests involved.166 However, the Court's subsequent analysis was insufficient in that it relied exclusively upon the factors set forth in United States v. Kimbell Foods, Inc.167 The factors set forth in Kimbell were used to determine whether state law should be adopted in a controversy involving a nationwide federal commercial program. Accordingly, the Court in Kimbell did not set forth an exclusive list of factors to be used under all circumstances to determine whether state law should be adopted. The Wilson Court, however, failed to consider factors other than those set forth in the commercial law context of Kimbell. Specifically, it did not take notice of the fact that Indian reservations have a special, federally-created sovereign status that should have been considered in determining whether to use a uniform federal rule.168

In Wilson, the Court also failed to properly apply the uniformity factor used in Kimbell.169 In addition to the misplaced emphasis on intrastate uniformity as indicated above, uniformity was also used in a manner that failed to give appropriate weight to the fact that when the various American Indian tribes, including the Omahas, negotiated separately with the United States government for a resolution of the conflicts between them, they acted in a sovereign capacity and relied upon the authority of the federal government to conclude a treaty that would serve as a satisfactory indication of the rights each would possess in an ongoing relationship.170 By treaty the Omahas relinquished far-reaching territorial claims of sovereignty in exchange for a promise by the federal government that it would hold an established area of land in trust for the tribe to use and occupy.171 By failing to use the available federal principles of accretion and avulsion for disputes involving Indian land, the Court ignored the tribe's expectations of having complete federal protection for its interests. These expectations were created by the government's recognition of the tribe's status as a foreign nation during the treatying process as well as the need to protect tribal land and affairs from state governmental interference. Thus, it was reasonable that the tribe would assume that this type of dispute would be resolved by applying the well developed uniform federal principles of accretion and avulsion.172 However, the Omahas' expectation interests were ignored by the Court.

The Court also stated that federal jurisdiction alone would be sufficient to insure that federal interests were not impaired.173 This assertion, however, ignored the fact that -reservation land and water rights were granted to the tribe in its sovereign capacity with the expectation that federal law and principles would govern all aspects of the tribe's relationship with the federal government. Although federal courts can control when state law is adopted, this decision makes it possible that state law will be applied in certain cases to deprive an Indian tribe of riparian rights where federally developed principles would have protected such rights.174 The Court acknowledged this when it stated that although the application of state law could on occasion result in a tribe losing land, on other occasions the tribe would be as likely to gain property by virtue of the application of state law. Thus, in Wilson the Court found that the state interests in having state law apply outweighed the federal interest in treating similarly situated Indian tribes uniformly. The Court did not find state interests to so outweigh federal interests in Hughes where the federal interests present were not as substantial as they were in Wilson.

The federal courts, in developing a uniform federal rule of accretion and avulsion, have been sensitive to the underlying rationale of the doctrines whereas some state courts have stuck rigidly to the mechanical distinction between the definitions of accretion and avulsion in developing the law in this area with little regard for the underlying purposes of the doctrines.175 This difference should at least have been considered by the Court in evaluating the factors to be used in deciding whether to use a uniform federal rule. Additionally, the Court should have considered as relevant the fact that the use of a uniform federal rule to determine whether the change was accretive or avulsive would not have resulted in an undue burden on the judicial system since a federal body of law to govern such disputes has already been developed.176 This law could easily have been applied, and it would not have required any significant Supreme Court involvement. Also, the use of a uniform federal rule would assure that such disputes were resolved by the application of the principles underlying the accretion and avulsion doctrines and not by a state's reliance on a mechanical distinction based solely on the rate of change of a waterbody's bounds regardless of the equities involved.

Since the federal government holds title to reservation lands, state law should govern only to the extent that it does not interfere with federal title.177 By adopting state law to govern when uniform federal rules have already been developed for similar disputes involving interstate boundaries, the Court has allowed state law to determine the extent of federally created property rights. This is inapposite to the Court's Borax holding.178 It also conflicts with the property clause which has been held to require that when state law is exercised to control rights affecting federal property, it must not interfere with the federal government's right of disposal.179 Here, as a result of adopting state principles of accretion and avulsion, the land has been held not to be part of the reservation. Therefore, the federal government has been deprived of any possible future right of disposal by the adoption of state law as the federal rule of decision.

It has been held that although the federal government did not expressly reserve water use rights for the Indian tribes in treaties with them, there are implied reservation rights which appropriate sufficient quantities of water for the irrigable land within the reservations.180 In developing this reserved water rights doctrine, the Court recognized the unique nature of society's obligation to the American Indians and its federal origin.181 The Court has applied this doctrine to permit withdrawal of water from state systems of appropriation. This infringement upon the state's sovereign power over water was deemed necessary to insure an adequate supply of water for the Indians in an arid region and it protected their expectation of a continued water supply. Just as reserved rights are of prime importance to the Indians, the right of access to water is equally important. After Wilson, if an accretive or avulsive change occurs in a waterbody bounding a reservation, state law will likely determine the nature of such a change. Thus, an Indian tribe could end up losing its right of access to water based upon the application of a state law that embodies a mechanical distinction between the accretion and avulsion doctrines. In Hughes, the Court recognized that the potential loss of access to the ocean by a federal patentee was not a loss that should be accepted; therefore, it required the use of a uniform federal rule to protect federal interests.182 Although Hughes is no longer "alive," the Court's recognition there of the importance of the need to protect access rights where there is a federal interest present by using a uniform federal rule should have been considered by the Court in Wilson. However, this factor was ignored and the Court failed to explain why the tribe's interests in having a uniform federal rule apply were not given appropriate consideration.

V. CONCLUSION

In Bonelli and Hughes, the Court's application of federal common law enabled the riparian owners to maintain the riparian character of their property. However, if state law had been applied, it would have resulted in a loss of access rights for the upland private property owners involved. Since the Supreme Court has repeatedly refused to apply fifth and fourteenth amendment protections to prevent state confiscation of riparian rights without just compensation, the Court in Bonelli and Hughes sought to provide the needed protection by applying federal common law. As the Court indicated in Corvallis, federal common law was improperly used in Bonelli, and the Bonelli majority's reasoning was flawed in that it did not adequately explain how title to property once passed from federal to state ownership could be subject to later defeasance. The Bonelli Court also failed to properly analyze the requirements of the equal footing doctrine. Although the Bonelli Court's legal analysis and reasoning was faulty, the Court correctly recognized that there were valuable private property rights -riparian rights, e.g., access rights - subject to being taken by the state without adequate protection being afforded by the law. Since in Corvallis the Court determined that federal common law could not be used to protect the riparian rights of private owners, other methods of protection should be considered to determine whether they might be applicable in a given situation to protect a private owner's riparian rights from confiscation by a state without just compensation.

Logically, the protection of private property rights would seem to be provided by the fifth and fourteenth amendments' prohibition against taking without just compensation. However, as indicated above, the Court has held that the taking of riparian rights does not require compensation under the fifth and fourteenth amendments. The case history that supports this position should be reexamined to determine whether it in fact justifies the Court's continuing exemption of riparian rights from the list of property rights that cannot be taken without just compensation by a state.

Some protection against an arbitrary taking of riparian rights by a state court can be provided by reliance on the cases that hold a state court cannot radically change the application of its law if such a change will diminish the rights of a private property owner. This approach could be used by federal courts to prevent state courts from altering the tests used to determine whether an accretive or avulsive change has occurred. Consequently, state courts would not be able to arbitrarily change the criteria used for deciding whether a change in a waterbody's bounds was avulsive or accretive. Absent the application of constitutional safeguards, state courts are completely free to apply the accretion and avulsion doctrines in whatever manner they desire, regardless of past practice and precedence. This could result in the acquisition of large tracts of land by a state without it having to tender just compensation.

The Court in Wilson properly resolved the property issue before it as a matter of federal law, but it failed to recognize a federal need for applying a uniform federal rule. In Wilson, the Court failed to go beyond the factors set forth in Kimbell to discuss the unique status, expectation and treaty rights of the Omaha Indian tribe. Additionally, the Court placed an undue amount of weight on the asserted need for intrastate uniformity when the Court should have looked at the need for uniform treatment of all tribal lands similarly situated. Thus, this holding was based upon an unnecessarily limited analysis of the factors that should have been considered by the Court and a faulty analysis of some of the factors it did consider.

Copyright(c) 1982 by the University of Wyoming
*Associate, Quarles & Brady, Milwaukee, Wisconsin; J.D., Wayne State University, 1981; B.S.M.E. Michigan Technological University, 1977; Member, Wisconsin State Bar. The author gratefully acknowledges the editorial assistance of Professor Robert Abrams and William Frey, Esq.

Notes:




[Land and Water Law Review, 1982]