Brusco Towboat Co. v. State, By and Through Straub
| Decision Date | 17 August 1977 |
| Citation | 567 P.2d 1037,30 Or.App. 509 |
| Parties | , 1978 A.M.C. 1384 BRUSCO TOWBOAT CO., Knappton Towboat Co., The Mirene Co., Pacific Inland Navigation Co., Ramona Towboat Co., Inc., Sause Bros. Ocean Towing Co., Inc., Shaver Transportation Co., Shepard Towing Co., Smith Tug & Barge Co., Tidewater Barge Lines, Inc., Western Transportation Co. and Willamette Tug & Barge Co., Appellants, v. The STATE of Oregon, acting By and Through Robert W. STRAUB, Clay Myers and James Redden, constituting the State Land Board, Respondent. The STATE of Oregon, Respondent, v. FORT VANCOUVER PLYWOOD CO., a corporation, Appellant. PORT OF ASTORIA, Port of Alsea, Port of Arlington, Port of Bay City, Port of Brookings, Port of Cascade Locks, Port of Coos Bay, Port of Gold Beach, Port of Hood River, Port of Morrow, Port of Newport, Port of Portland, Port of Port Orford, Port of Siuslaw, Port of St. Helens, Port of The Dalles, Port of Tillamook Bay, Port of Toledo, Port of Umatilla and Port of Umpqua, Appellants, v. STATE of Oregon, acting By and Through Robert W. STRAUB, Clay Myers and James Redden, constituting the State Land Board, Respondent. |
| Court | Oregon Court of Appeals |
Alex L. Parks, Portland, argued the cause for appellants. With him on the briefs were Malcolm J. Montague, Clemens E. Ady and White, Sutherland, Parks & Allen, Portland.
James C. Rhodes, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were James A. Redden, Atty. Gen., W. Michael Gillette, Sol. Gen., and Peter S. Herman, Senior Counsel, Salem.
Jane R. Hotneier and Jan S. Pauw, Tacoma, Wash., filed a brief amicus curiae for Weyerhaeuser Co.
Before SCHWAB, C. J., and THORNTON and TANZER, JJ.
The basic issue in each of these three consolidated cases is the validity of rules promulgated by the State Land Board requiring users to enter into leases and to pay rent for the use of submerged and submersible lands underlying navigable waterways throughout the state. 1
The first case, an action in ejectment, was commenced by the Board against the Fort Vancouver Plywood Company to compel it either to enter into a lease for or to vacate submerged lands which it used for a log boom. It was treated below as a suit for declaratory judgment and it will be so treated here. The other two cases are suits for declaratory judgment commenced by various tugboat companies and by several port districts seeking to have the Board's leasing program declared invalid. Judgments in all three cases upheld the lease program and this appeal followed. For convenience, all parties challenging the leasing program will be referred to herein as plaintiffs.
The rules in issue establish a program for leasing state-owned submerged and submersible lands:
"Any person engaged in a permanent or long-term use of state-owned submerged or submersible lands not exempted from leasing by statute or these regulations must obtain a lease from the Division. * * *" OAR 141-82-015(1).
Under the program, leases are required for most long-term uses of submerged and submersible lands which effectively preclude any other use and enjoyment of such lands and the overlying waters. Thus, leases are required for most industrial and commercial uses including log booms, aquatic cultivation facilities and marinas, as well as for private uses such as houseboat moorages and private docks. 2
The rules exempt from the lease program uses which are essentially navigational or in aid of navigation, such as vessels which are temporarily anchored or hove to and temporary log tie-ups. Buoys, channel markers and beacons authorized by state or federal authorities are also exempt. 3 In addition, the legislature has conferred upon riparian owners certain wharfing privileges which are not subject to the lease program. ORS 780.040 provides:
Under the rules, the leasing process is initiated by filing an application with the Board, OAR 141-82-015(1), which then establishes a minimum annual rental for the parcel sought. OAR 141-82-020(1)(d); ORS 274.040(6). Owners of land abutting the parcel are then notified that they have 14 days in which to exercise their statutory right to lease the land at the minimum rental. OAR 141-82-020(1)(e); ORS 274.040(2). If abutting landowners fail to exercise this right, the parcel is opened to competitive bidding. OAR 141-82-020(1)(f). The Board may reject lease applications which it deems to be contrary to the public interest. OAR 141-82-025(1). The Board is authorized, but not required, to conduct public hearings on the question of whether to issue a particular lease. OAR 141-82-020(2). Leases may be for a period of up to 20 years. OAR 141-82-030.
The construction of permanent facilities such as those subject to the Board's lease program requires a permit from the United States Army Corps of Engineers. Issuance of such a federal permit is without prejudice to rights of the state regarding construction. Conversely, the Board's rules provide that a lease from the state does not obviate the need for compliance with the Corps of Engineers' permit requirement. OAR 141-82-025.
All of the plaintiffs, in connection with the ordinary conduct of their business, maintain permanent facilities overlying submerged and submersible lands which are not exempted from the Board's leasing program. With minor exceptions, these facilities preclude the public's use and enjoyment of the lands and waters which overlie them. At least some of the plaintiffs are riparian landowners. 4
Plaintiffs challenge the validity of the Board's leasing program on several grounds. They contend that the state's proprietary interest in submerged and submersible lands underlying navigable waters does not empower it to convey leasehold interests in such land to private parties. The riparian landowner plaintiffs argue that they have the right to erect structures in aid of navigation on submerged and submersible land and that the charging of rent for the exercise of that riparian right is an unlawful taking of property without compensation. Plaintiffs also contend that the leasing program is beyond the statutory authority of the State Land Board and that the program violates various provisions of the Oregon and United States Constitutions.
Resolution of these challenges requires that we draw the line which separates the opposing property rights of the state and of the riparian owners. That in turn requires an understanding of the nature and extent of each.
The sovereign interest of the State of Oregon in submerged and submersible lands underlying navigable waters is substantially the same as that enjoyed at common law by the English king. Although the existence of the interest is well settled, its origin and its precise nature is obscured by an historical sequence of cases, most of which deal peripherally and imprecisely with the interest of the sovereign.
Under English common law, title to lands underlying tidal waters was held by the king as an element of sovereignty. After the American Revolution, each of the original colonies assumed its own sovereign powers, one aspect of which was ownership of all submerged and submersible lands underlying navigable waters. 5 Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894); Mumford v. Wardwell, 73 U.S. (6 Wall.) 423, 18 L.Ed. 756 (1867); Pollard's Lessee v. Hagan et al., 44 U.S. (3 How.) 212, 11 L.Ed. 565 (1845); Martin v. Waddell, 41 U.S. (16 Pet.) 367, 410, 10 L.Ed. 997 (1842). Title to such land was not surrendered to the federal government upon adoption of the constitution. Rather, by virtue of the Tenth Amendment, 6 it was reserved to the states, subject only to limitations imposed by expressly conferred federal powers, such as the regulation of interstate commerce. United States v. Holt Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465 (1926); Scott v. Lattig, 227 U.S. 229, 33 S.Ct. 242, 57 L.Ed. 490, 44 LRA,NS, 107 (1913); Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894); Mumford v. Wardwell, supra.
By the terms of the Oregon Admission Act, Oregon entered the union "on an equal footing with the other States * * *." Thus, upon its admission in 1859, title to submerged and submersible lands underlying navigable waters devolved upon the state as sovereign. 7 Oregon v. Corvallis Sand & Gravel Co., 429 U.S. 363, 97 S.Ct. 582, 50 L.Ed.2d 550 (1977); Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 94 S.Ct. 517, 38 L.Ed.2d 526 (1973); United States v. Holt Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465 (1926); Scott v. Lattig, supra; Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894); Smith Tug v. Columbia-Pac. Towing, 250 Or. 612, 443 P.2d 205 (1967).
The state's ownership of submerged and submersible land is not, however, limited to the incidents of legal title. Rather, it is comprised of an interrelationship of two distinct aspects, each possessing its own characteristics.
As sovereign, the state holds full proprietary rights in such land; it is invested with a fee simple title. This first element of the state's interest is called the jus privatum. See, Shively v. Bowlby, 152 U.S. 1, 11, 14...
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