Won’t Assert Ownership Over Reclaimed Lands, State Officials Say : High Court Tidelands Ruling Called Status Quo

The warning from insurers of land titles was dire: “Millions of landowners” nationwide stood to suffer under a Feb. 23 Supreme Court ruling that gave coastal states claim to all lands touched by tidewaters.

In the title insurers’ nightmare, the states would be free to lay claim to lands where private developers long ago filled in bays and tidal rivers and constructed everything from residential tracts in Newport Beach and Long Beach to airports in San Francisco and San Diego.

“This will encourage the state to be more aggressive, to go after lands that have been filled in and developed years ago,” said Edgar Washburn, a San Francisco attorney who filed a Supreme Court brief for the American Land Title Assn.

Despite Washburn’s warning, however, California officials say they have no plans to use the Supreme Court ruling to assert state ownership of reclaimed lands.

California Considered Typical

And California, which historically has laid claim to all lands touched by tidewaters even at high tide but has commonly granted private ownership to reclaimed lands, appears to be typical of the 30 states that are washed by the tides.

“This decision just reaffirms the status quo,” said Deputy California Atty. Gen. Michael Crow, adding that the state planned no change in policy because of the ruling. As far back as 1886, Crow said, the state Supreme Court ruled that the state owned all land swept by the tides, and that has been the state’s legal position since then.

The U.S. Supreme Court ruling did not focus on the question of reclaimed tidal land.

Instead, on a 5-3 vote, the high court ruled that states own all lands subject to the ebb and flow of the tides, whether or not the waters are navigable.

The case involved 42 acres of Mississippi swamplands to which the Phillips Petroleum Co. said it had a valid title because they were miles from the ocean or a navigable waterway--one traditional test of whether a waterway should be public. Mississippi’s own claim to the land lay dormant until the 1970s, when Phillips began preparing to drill for oil on it.

Puts Sail on Toothpick

The Mississippi Supreme Court, devising a novel legal test, determined that the wetlands were navigable and that the state’s claim to the land was therefore valid. If “one may hoist a sail upon a toothpick and without interruption navigate” that toothpick from the tidal swamp to the sea, the Mississippi court said in 1986, that swamp is part of the navigable tidal waters.

Justice Byron R. White, writing for the Supreme Court’s five-member majority, ignored the “toothpick test” and ruled simply that the states owned all tidelands. Citing an 1886 ruling involving California’s Russian River, White held that it was irrelevant whether the disputed waters were navigable.

White indicated that his ruling applied to lands once--but no longer--washed by the tides. “The states, upon entry into the Union, received ownership of all lands under waters subject to the ebb and flow of the tide,” he wrote.

But at the same time, he tried to allay fears that the Supreme Court might allow states to renege on earlier agreements to allow private parties to own current and former tidelands. “Our decision today does nothing to change ownership rights in states which previously relinquished a public trust claim to tidelands such as those at issue here,” he wrote.

‘Prevailing Understanding’

White insisted that the ruling would do little more “than confirm the prevailing understanding” about tideland ownership in coastal states.

That was not how Justice Sandra Day O’Connor read the impact of the court’s ruling. On behalf of the three dissenting justices, she warned: “The court’s decision today could dispossess thousands of blameless record owners and leaseholders of land that they and their predecessors in interest reasonably believed was lawfully theirs.”

“Although there is no way to predict exactly how much land will be affected by the court’s decision,” she said, “the magnitude of the problem is suggested by the fact that more than 9 million acres have been classified as fresh or saline coastal wetlands.”

Citing Supreme Court cases involving non-tidal waterways, O’Connor argued that the court has consistently upheld public ownership only of navigable waters. And she held that the Mississippi swamplands were not navigable, the state Supreme Court’s toothpick test notwithstanding.

Echoes Insurers Concerns

O’Connor’s dissent echoed the concerns of the title insurers and their lawyers, particularly over lands that developers had reclaimed from the tides.

San Francisco attorney Washburn, who has battled with state lawyers on the issue for 20 years, did not predict that the states would actually try to wrest reclaimed lands from their current owners. But he said that thanks to the Supreme Court ruling, owners of such property could find themselves confronting state claims when they tried to sell their lands.

Washburn maintained that the high court, by upholding the claim that states owned all tidal lands at the time they joined the Union, would permit state officials to rely on century-old maps to assert claims to former tidal areas.

“In some cases, we’re talking about lands that were filled in 130 years ago,” Washburn said, adding that the state of California has been particularly active in asserting claims to lands around San Francisco Bay and in the Sacramento Delta. He conceded, however, that “they don’t go after homeowners.”

Some Attorneys Puzzled

California state attorneys in the attorney general’s office and the State Lands Commission say they are puzzled by what they view as the title lawyers’ overreaction to the high court ruling.

Decades ago, the state and private land companies settled title disputes involving Los Angeles Harbor, San Francisco Bay, the ports of San Diego and Oakland, Newport Bay and other areas subject to the tidal flow. The state attorneys see no reason or legal basis for reopening these cases.

“I don’t understand the parade of horribles they (title lawyers) cite,” said N. Gregory Taylor, the assistant state attorney general in Los Angeles who is in charge of the lands division. “We have been through all this years ago and settled these situations.”

Many of the former tidelands are not easily recognized today. The airports in San Francisco, Oakland and San Diego are built on land that was once under water, as is Candlestick Park just north of the San Francisco International Airport, Taylor said. In these cases, the state turned over the land to the cities.

Includes Residential Areas

Residential developments in Newport Beach, Long Beach and San Diego and other seaside cities were built on tidelands, but the state settled claims with private developers before any homes were built.

“In 90% of these cases, we hear about it when a developer comes to us,” Taylor said. “No one is going to insure a title until any state claims are resolved. And that’s when we settle them.”

Jan Stevens, a deputy attorney general in Sacramento, confirmed that it was “highly unlikely, virtually impossible” that a developed piece of property would have an unresolved state claim attached to it.

He said the only recent disputes have concerned small parcels of farmland along the Sacramento River or some landfill areas in north San Francisco Bay.

“Just coming in and filling up a waterway doesn’t give you title to the land,” Stevens said.

The ownership of reclaimed wetlands remains a hotter legal topic in New Jersey.

‘A Massive Problem’

“We’ve had a massive problem here,” said John R. Weigel, a Princeton, N.J., lawyer who represents title insurers. “The state has asserted claim to many parcels--in the thousands--that had been filled in and had homes built on them.”

In the late 1950s, New Jersey began mapping portions of the state that once were lined with tidal streams and laying claim to lands that covered the ancient creek beds. Since then, in hundreds of separate actions, New Jersey has demanded and won claims from property owners.

When New Jersey legalized gambling in Atlantic City in the late 1970s, several major property owners who planned to build high-rise hotels and casinos discovered that they held tidal land. But Weigel noted that those claims were settled and the hotels went up.

“I’ve been fighting these battles for 25 years,” said Weigel. “But I don’t see this (Supreme Court decision) as having much effect because that’s been New Jersey’s rule for at least the last 30 years.”

Says New Jersey Delayed

David C. Slade, counsel for the Coastal States Organization in Washington, said New Jersey’s situation was unusual because the state was so late in asserting its claims.

“It’s fair to say that some of the blame lies with the state for being lax,” said Slade, whose organization represents the governors of the 30 coastal states. “Wetlands were filled in. Deeds were filed with the counties, and the state wasn’t on top of it.”

But elsewhere along the East and West coasts, states have been diligent for years in asserting their claims and protecting tidal areas from unwarranted and illegal development.