The Ancient Mariner of Constitutional Law: The Declining Role of Navigability

57 Pages Posted: 19 Apr 2012  

Robert W. Adler

University of Utah - S.J. Quinney College of Law

Date Written: April 18, 2012

Abstract

For the first time in three decades, in its 2011-2012 Term the U.S. Supreme Court decided a case involving “navigability for title,” in which the issue of whether a river or other body of water is navigable determines whether a state has owned the beds and banks of the waterway since statehood. PPL Montana, LLC v. State, __ S. Ct. __, No. 10-218, 2012 WL 555205 (2012). The Court held that, in determining navigability for title, courts must focus on discrete segments of the river rather than the river as a whole, and that evidence of current navigability can only be used in limited circumstances to prove navigability at statehood. Under this ruling, as time passes it will become increasingly difficult for states to prove that a river was navigable at statehood, particularly where historical records are scarce.

The PPL Montana case, however, raises more fundamental questions about the continuing role of navigability as a central tenet of U.S. constitutional law, for which it serves several distinct but related purposes. In addition to the navigability for title test, slightly different navigability tests govern the geographical scope of federal authority under the Commerce Clause and the federal navigational servitude, and of Article III admiralty jurisdiction. Each of these doctrines dates to a time when rivers were our most important avenues of commerce. Waterways continue to serve as major avenues of commerce. Through the lens of twenty-first century science and values, however, rivers serve a much broader range of public purposes, such as water supply, biodiversity and habitat, fish and wildlife production, recreational use, flood control and watershed protection, and pollution assimilation. The role of navigability has declined accordingly for Commerce Clause purposes, but not for purposes of allocating public versus private proprietary rights in rivers and other waters. This article suggests that while navigability obviously remains relevant for some constitutional purposes, its role should diminish as the value of navigation as the main public function of waterways continues to decline relative to other public uses and values.

Keywords: Constitutional Law, Environmental Law, Water Law

Suggested Citation

Adler, Robert W., The Ancient Mariner of Constitutional Law: The Declining Role of Navigability (April 18, 2012). Washington University Law Review, Vol. 90, 2013, Forthcoming; University of Utah College of Law Research Paper No. 1. Available at SSRN: https://ssrn.com/abstract=2042120

Robert W. Adler (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

332 S. 1400 East Room 101
Salt Lake City, UT 84112-0730
United States

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