A long simmering point of contention between State and Federal governments in the City of San Diego is the fate of the property now occupied by the United States Navy’s Fleet Antisubmarine Warfare Training Center in San Diego Bay. The issue is whether the Federal government, having decided that a 50 year extension of its existing lease over the property is not long enough, can extinguish California’s public tidelands trust rights, granted to the State upon its admission to statehood in 1850, through condemnation of 27.54 filled acres in perpetuity; or whether, as the State claims, California’s public trust rights reemerge if the property is subsequently sold to a private party. The question is of general importance, not only because many states hold public tidelands in trust, but also because the issue represents a test of the scope of the supremacy clause of the United States Constitution, and the doctrine of federal preemption that arises from it. On June 14, 2012, the Ninth Circuit Federal Court of Appeals decided the question in United States of America v. 32.42 Acres of Land, No. 10-56568, D.C. No. 3:05-CV-01137-DMS-WMC (“California Lands”).
The Ninth Circuit affirmed the trial court’s decision that the Federal government’s use of eminent domain did indeed extinguish California’s public trust right over the filled acres permanently, leaving only the 4.88 acres that remained underwater within the public trust. Whether the United States’ power of eminent domain is normally supreme over state property generally was not so much the subject of dispute, see United States Constitution, Article VI, Clause 2, and Article I, Section 8 [under the mandate to “provide for the common defense” and the “necessary and proper” clause which implements it]. Rather, the question was United States’ power of eminent domain over public tidelands trust property and, more specifically, “what will happen if the United States transfers ownership of the property to a private party in the future.”
The State’s claim rests on the “Equal Footing Doctrine” which it argues creates an interest as important as the United States’ interest in its power of eminent domain. The Equal Footing Doctrine, which emerged as early as 1845, see Pollards Lessee v. Hagen, 44 U.S. 212, 230 (1845), holds that when a new state is admitted to the Union it gains “the same rights, sovereignty and jurisdiction in that behalf as the original states possess within their respective borders,” Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 474 (1998), including “absolute property in, and dominion and sovereignty over, the soil under the tidewaters.” Id. The State argued that the Equal Footing Doctrine, in essence, raises the standard of review in eminent domain over tidelands to require the Federal government to have a “compelling reason” for taking away the public trust rights belonging to the states.
The Ninth Circuit found the State’s argument based on a false premise, because the “property clause,” United States Constitution, Article IV, Section 3, Clause 2, gives the United States power to divest a state of its entire title to submerged lands so long as it makes its intention plain, and the conveyance is for a public purpose. This is so even though, when deciding questions of title under the Equal Footing Doctrine, “a strong presumption against defeat of a state title” exists, United States v. Alaska, 521 U.S. 1, 34 (1997). The Ninth Circuit went on to find that the presumption had been rebutted in this case by the Congressional policy of not retransferring submerged lands to private parties except under “exceptional circumstances.” Id.
Ultimately, rejecting the State’s remaining arguments, the Ninth Circuit determined that “while the Equal Footing Doctrine is grounded in the Constitution, ‘the Public Trust Doctrine remains a matter of state law,’ the contours of which are determined by the states, not the United States Constitution.” California Lands, supra, quoting PPL Montana, LLC v. Montana, 132 S.Ct. 1215, 1235 (2012). On that basis, the Court held that neither the Equal Footing Doctrine nor the Public Trust Doctrine prevents the Federal government from taking an interest in the land unencumbered, because, to hold otherwise, would be to subjugate the Federal government’s eminent domain power to state law Public Trust Doctrine.
The Ninth Circuit’s determination has implications for other Circuits as well. Not only will the decision give significant heartburn to states’ rights advocates, but also, the parsing of the Equal Footing Doctrine from the Public Trust Doctrine, and its relegation to a matter of state law, raises the question of how “equal” can the Equal Footing Doctrine make states’ rights over their tidelands in the face of the expanding scope of Federal preemption. It would not be surprising to see the issue reappear on the docket of the United States Supreme Court during the next session.