California State Lands Comm’n v. United States, 457 U.S. 273 (1982)

JUSTICE REHNQUIST, with whom JUSTICE STEVENS and JUSTICE O’CONNOR join, concurring in the judgment.

I concur in the judgment. I believe that our decision in Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979), requires the application of federal common law to resolve this title dispute between the United States and California, and that § 5(a) of the Submerged Lands Act indicates the source of that law.

The dispute in this case concerns the ownership of artificially caused accretions on oceanfront property belonging to the United States. The dispute centers on the legal effect of the movement of the "mean high-water mark." That mark separates the fastlands continuously owned by the United States from the "tidelands" -- the area of partially submerged lands between the mean high- and low-water marks. California’s claim of title to the tidelands is based upon the equal-footing doctrine. Because the tidelands belong to it, and because the accretions formed on the tidelands, California contends that state law applies to resolve this title dispute between it and the United States. The rule adopted by the California courts regarding artificially caused accretions holds that title to accreted land vests with the State, rather than the riparian or littoral owner. The United States contends that federal common law applies, and argues that the federal common law rule holds that title to land formed by accretion vests in the owner of the riparian land.

The dispute in this case is similar to that in Wilson v. Omaha Indian Tribe. We held in Wilson that federal common law and not state law governs title disputes resulting from changes in the course of a navigable stream where an instrumentality of the Federal Government is the riparian owner. 442 U.S. at 669-671. The rule of Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363 (1977), was distinguished. The Corvallis rule -- that state law governs -- applies where the dispute over the legal effect of a shifting riverbed does not involve claims of title by a federal instrumentality.

I agree with the Court that the Wilson rule applies to oceanfront property as well as riverfront property where the Federal Government is the littoral owner. Wilson should apply to the movement of the high-water mark along the ocean in a fashion similar to the way it applies to changes in the bed of a navigable stream. In the instant case, as in Wilson, it is irrelevant that the accretion, as a geographical "fact," formed on land within the State’s dominion, be it a river bottom or the ocean tidelands. The fact is that bothWilson and the instant case concern title disputes over changes in the shoreline where the Federal Government owns land along the shoreline.

In Wilson, we held that state law supplied the applicable rule of decision even though federal common law applied to resolve the title dispute. We found no need for a uniform national rule, and no reason why federal interests should not be treated under the same rules of property that would apply to private persons. In contrast to Wilson, however, I agree with the Court that Congress, in § 5(a) of the Submerged Lands Act,, has supplied the rule of decision. Section 5(a) withholds from the grant to the States all accretions to coastal lands acquired or reserved by the United States. I also agree with the Court that California did not acquire the disputed lands pursuant to the "made lands" provisions in § 2(a)(3).

Consequently, the Court’s discussion regarding the continuing vitality of Hughes v. Washington, 389 U.S. 290 (1967), is dicta. Hughes is unnecessary to the resolution of choice-of-law issues in title disputes between the Federal Government and a State or private person. Reliance on Hughes would be necessary only if we were to hold that federal common law, rather than state law, applied in a title dispute between a federal patentee and a State or private persons as to lands fronting an ocean. The instant case does not present that issue. It is difficult to reconcile Hughes with Corvallis, and we should postpone that endeavor until required to undertake it.

In summary, I think this case can be easily resolved as a title dispute between the United States and California concerning the legal effect of movement of the Pacific Ocean’s high-water mark. Wilson and the Submerged Lands Act resolve the dispute. The continuing vitality of Hughes should be left to another day.