USA v. California State Lands Commiss, et al

Filing

FILED OPINION (HARRY PREGERSON, RONALD M. GOULD and RICHARD C. TALLMAN) AFFIRMED. Judge: RMG Authoring, FILED AND ENTERED JUDGMENT. [8214187]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
32.42 ACRES OF LAND, More or
Less, Located in San Diego
County, State of California; SAN
DIEGO UNIFIED PORT DISTRICT,
Defendants,
and
CALIFORNIA STATE LANDS
COMMISSION,
Defendant-Appellant.


No. 10-56568



D.C. No.
3:05-cv-01137DMS-WMC
OPINION



Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued and Submitted
March 8, 2012—Pasadena, California
Filed June 14, 2012
Before: Harry Pregerson, Ronald M. Gould, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Gould

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COUNSEL
Alan V. Hager (argued), Christina Bull Arndt, and John A.
Saurenman, Office of the California Attorney General, Los
Angeles, California, for defendant-appellant California State
Lands Commission.
John Emad Arbab (argued), Michael T. Gray, and Marc E.
Gordon, U.S. Department of Justice, Environment & Natural
Resources Division, Washington, DC, for plaintiff-appellee
United States.
Georgia Garthwaite, U.S. Department of Justice, Land Acquisition Section, Washington, DC, for plaintiff-appellee United
States.

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UNITED STATES v. CALIFORNIA STATE LANDS

Thomas C. Stahl, Office of the US Attorney, Washington,
DC, for plaintiff-appellee United States.

OPINION
GOULD, Circuit Judge:
The California State Lands Commission (the “Lands Commission”) appeals the district court’s final judgment in this
eminent domain case, wherein the United States took a fee
simple interest in about 32.42 acres of land (the “Property”)
on behalf of the Navy, which has continuously leased this parcel since 1949. In condemning the Property, the United States
sought to extinguish California’s public trust rights. The
Lands Commission contends that California’s public trust
rights cannot be extinguished by the United States’ power of
eminent domain. The Lands Commission does not dispute the
United States’ power to take and use the land without trust
restrictions. Instead, it asks us to hold that California’s public
trust rights become “quiescent” while the United States owns
the land but will “re-emerge” if the United States seeks to
transfer the Property to a private party.
The district court held that the United States’ condemnation
extinguished California’s public trust on the entire parcel, and
that the 27.54 acres which are filled can be conveyed to a private party free of any trust, but that the 4.88 acres that
remained tidelands at the time of the taking are now subject
to a federal public trust and may not be conveyed to a private
party. The issue before us is whether the United States can
extinguish California’s public trust rights when exercising its
federal power of eminent domain. We hold that it can, and
affirm the judgment of the district court.
I
The Lands Commission is a unit of California’s state government that provides stewardship of the lands, waterways,

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and resources entrusted to its care. The Lands Commission
does this by economic development, protection, preservation,
and restoration of lands. The Lands Commission has all jurisdiction remaining in the state as to tidelands and submerged
lands granted in trust by the Legislature to local government
entities. CAL. PUB. RES. § 6301.
The Property is located in the City of San Diego (“City”)
on the south side of North Harbor Drive at Nimitz Boulevard,
and is now occupied by the Navy’s Fleet Anti-Submarine
Warfare Training Center. In 1850, the State of California
acquired this land as an attribute of its sovereignty upon
admission to the Union. In 1911, the California Legislature
granted the Property to the City, subject to California’s common law public trust. In 1949, the Property was leased to the
Navy for 50 years, with a right to renew for an additional 50
years, as part of a land exchange with the City. In 1963, the
City transferred the lands to the newly formed San Diego Port
District (“Port”) subject to the public trust and the Navy lease.
Over time, the Property has been filled to expand the Navy’s
Training Station. Today only 15% of it (4.88 acres) is covered
with water. But the entire parcel was subject to California’s
public tidelands trust at the time of the federal condemnation
action because it was entirely underwater when California
joined the Union in 1850.
When the Navy sought to exercise its exclusive option to
renew the lease in 1996, the Port and the Lands Commission
opposed the extension, and the United States brought a condemnation action to enforce its rights under the lease. See
generally United States v. Polar Star, 668 F.3d 1119, 1124
(9th Cir. 2012) (“An eminent domain claim can be used by
the Government to quiet title to its [leasehold] interest in a
property”). The district court granted summary judgment in
favor of the United States, but that order was later withdrawn
as part of a settlement agreement dismissing California’s
appeal from that order and granting the United States a lease
in the Property through August 2049. In 2005, the Navy

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decided that it wanted to own the Property in fee simple. In
May 2005, the United States filed a complaint in condemnation and declaration of taking in the Southern District of California. The complaint explicitly lists “any tidelands trust
rights of the State of California” as part of the estate to be
taken.
The Port objected to the taking on many grounds. The district court overruled those objections and they are not part of
this appeal. At issue is the Lands Commission’s motion for
summary judgment, wherein it contends that the United States
could not extinguish California’s public trust rights. The district court denied the Lands Commission’s motion in April
2006, holding that the United States’ condemnation of the
Property extinguished California’s public trust in the entire
parcel, that the 27.54 acres of filled land are free of any public
trust restrictions, but that the 4.88 acres that remain tidelands
are now subject to a federal public trust. A trial followed to
determine the amount of just compensation, estimated by the
Untied States at $237,000, but set by a jury at $2,910,000.
The district court entered final judgment in August 2010, and
the Lands Commission timely appealed. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
II
[1] We review the district court’s denial of summary judgment de novo. Russell Country Sportsmen v. U.S. Forest
Serv., 668 F.3d 1037, 1041 (9th Cir. 2011). Eminent domain
is a proceeding in rem that permits the United States to take
all interests in a property. A.W. Duckett & Co. v. United
States, 266 U.S. 149, 151 (1924). Through eminent domain,
the United States takes not just the rights of designated persons in the property, but the property itself, establishing a new
title and obliterating previous interests not specifically
excepted. Burkhart v. United States, 227 F.2d 659, 661-62
(9th Cir. 1955). The United States’ power of eminent domain
is supreme when exercised within its constitutional powers.

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United States v. Carmack, 329 U.S. 230, 240 (1946); U.S.
Const., art. VI, cl. 2. The federal government does not need
the consent of a state or local subdivision to take its property
for public use, so long as the federal government acts within
its constitutional authority and pays just compensation. Carmack, 329 U.S. at 240-42.
Here, the United States is taking a full fee simple interest
in the Property under its powers to “provide for the common
Defense,” to “provide and maintain a Navy,” and to “make all
Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers.” U.S. Const. art. I, § 8, cl.
1, 13, 18. The United States has followed the procedure outlined in 40 U.S.C. § 3114, and its action was duly authorized
by 10 U.S.C. § 2672 (2005) at the time of the taking.1 The
declaration of taking specifically lists “any tidelands trust
rights of the State of California” in the Property as part of the
estate to be taken. The parties agree that the federal government may take the Property, and that so long as it owns the
Property it may put it to any use, including non-trust uses.
They disagree about what will happen if the United States
transfers ownership of the Property to a private party in the
future.
[2] The Lands Commission contends that the public trust
is an aspect of state sovereignty that the federal government
is without power to extinguish, or at least has no power to
extinguish in this case. The Lands Commission argues that
California’s interest in its public trust rights is as important as
the United States’ interest in its power of eminent domain.
The Lands Commission urges us to reconcile these interests
by holding that the declaration of taking does not extinguish
public trust rights, but instead only makes the public trust
“quiescent,” such that the public trust has no effect while the
United States owns the Property, but can “re-emerge” if the
1

Section 2672 has since been recodified at 10 U.S.C. § 2663(c) by Pub.
L. No. 109-163, § 2821(a)(2), 119 Stat. 3511 (2006).

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land is later sold to a private party. This solution might be
considered if we were charged with reconciling immovable
public trust rights with the powerful force of eminent domain.
But no such conflict of values exists. None of the authorities
discussing the equal-footing doctrine cited by the Lands Commission inhibits or restricts the federal government from exercising its constitutional power of eminent domain. When and
to the extent that state law public trust rights conflict with federal takings law, the Supremacy Clause dictates that federal
takings law prevails. U.S. Const., art. VI, cl. 2.
III
The Lands Commission’s argument misapprehends the
equal-footing doctrine, which gives a state presumptive title
to its submerged lands when it joins the Union. The United
States Supreme Court dealt with title to tidal and submerged
land in the original thirteen states in Martin v. Waddell’s Lessee, 41 U.S. 367 (1842). There, the Supreme Court resolved
a property dispute over who had the right to harvest oysters
in a certain oyster bed in New Jersey. Id. at 407. The plaintiff
claimed the tideland by tracing title back to the charters given
to the Duke of York in the late 1600s and his subsequent grant
to the 24 Proprietors of East New Jersey. The defendant
claimed his right under an 1824 New Jersey law allowing him
to lease oyster land from the state. Id. at 408. To resolve the
case, the Court had to determine who held title to the oyster
bed: the plaintiff or the State of New Jersey.
The Supreme Court concluded that New Jersey held title,
reasoning that the title to land under navigable water was not
a private property right retained by the Proprietors, but one of
the royal rights held by the sovereign in public trust for the
benefit of the community. Id. at 413-16. As such, it was one
of the rights surrendered to Queen Anne by the Proprietors in
1702, and then passed to the State of New Jersey at the time
of the Revolution. Id. at 415-16. The practical effect of Martin was to establish that the original thirteen states held clear

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title to their navigable waters and tidelands, absent the use of
“clear and especial words” suggesting otherwise, in a preRevolution grant of land. Id. at 411-12.
[3] Three years later the Supreme Court first applied the
equal-footing doctrine to hold that new states also received
clear title to their navigable waters and tidelands from the
United States when they entered the Union. Pollard’s Lessee
v. Hagan, 44 U.S. 212, 230 (1845). Under the equal-footing
doctrine, when a new state is admitted into 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) (quoting Knight v. U.S. Land Ass’n, 142 U.S. 161, 183
(1891)). These rights include “absolute property in, and
dominion and sovereignty over, the soils under the tide
waters,” id. (quoting Knight, 142 U.S. at 183), as well as the
“lands under navigable freshwater lakes and rivers,” id. at
479. Before a state’s admission to the Union, these rights “are
held by the United States for the benefit of the whole people,”
and “in trust for the future States.” Shively v. Bowlby, 152
U.S. 1, 49 (1894).
A
[4] The Lands Commission contends that the equal-footing
doctrine required the United States to have “some compelling
reason for granting away” submerged lands because courts
did not “lightly infer” such a grant when the United States
held title to submerged lands before statehood. It goes on to
argue that the power of eminent domain should not be construed to “allow Congress to do what it could not do when the
states were but territories,” free land from the state’s public
trust without a compelling reason for doing so, and so the
equal-footing doctrine prevents the United States from extinguishing California’s public trust rights. We reject this argument because it is based on a false premise. The Property
Clause gives the United States power to divest a future state

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of its entire title in submerged lands so long as the federal
government makes its intention to do so plain and the conveyance is for a public purpose. U.S. Const. art. IV, § 3, cl. 2;
United States v. Alaska, 521 U.S. 1, 33 (1997).
[5] When deciding questions of title to submerged lands
under the equal-footing doctrine, a court begins “with a strong
presumption against defeat of a State’s title.” Id. at 34 (quotation marks omitted). This presumption can be rebutted if the
submerged land was conveyed to a third party or set aside as
a federal reservation before statehood, but only if the intention
to do so “was definitely declared or otherwise made very
plain.” United States v. Holt State Bank, 270 U.S. 49, 55
(1926). The United States has, as a policy matter, refrained
from granting submerged lands to third parties absent “exceptional instances.” Id. This was a policy choice by Congress,
not a limitation on Congress’s power imposed by the equalfooting doctrine. Alaska, 521 U.S. at 40.
B
The Lands Commission argues that the equal-footing doctrine prevents the United States from extinguishing California’s public trust rights by eminent domain because
“[n]othing but the Constitution can take away from the states
what they received under the equal footing doctrine.” The
Lands Commission presents out of context quotations from
cases such as Oregon ex rel. State Land Bd. v. Corvallis Sand
& Gravel Co., 429 U.S. 363 (1977) and Pollard’s Lessee,
where the Supreme Court held that the federal government
did not have any title in a state’s submerged lands to convey
to third parties after the state had entered the Union, and from
this seeks to fashion a limitation on the United States’ eminent domain power. Corvallis Sand states that “the Federal
Government has no power to convey lands which are rightfully the State’s under the equal-footing doctrine,” 429 U.S.
at 376, while Pollard’s Lessee reasons that:

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To give to the United States the right to transfer to
a citizen the title to the shores and the soils under the
navigable waters, would be placing in their hands a
weapon which might be wielded greatly to the injury
of state sovereignty, and deprive the states of the
power to exercise a numerous and important class of
police powers.
44 U.S. at 230.
In our view, the above quoted cases do not at all support
the Lands Commission’s argument. Under the rule in Pollard’s Lessee, the equal-footing doctrine vested new states
with title to their submerged lands at the time they entered the
Union. Alaska, 521 U.S. at 4. Once title was vested, “the force
of that doctrine was spent,” so subsequent questions of land
title, such as ownership of land uncovered when a river
moves, are a matter of state law. Corvallis Sand, 429 U.S. at
370-71. This means that a state’s title to lands which passed
to it under the equal-footing doctrine are “not subject to
defeasance” by operation of federal law when the lands are
uncovered; rather “state law governs subsequent dispositions”
of submerged lands. Id. at 378.
The equal-footing doctrine prevented the United States
from transferring title in these cases because the grants at
issue were post-statehood grants of land that had already
passed to the state. See Corvallis Sand, 429 U.S. at 365-68;
State ex rel. State Land Bd. v. Corvallis Sand & Gravel Co.,
283 Ore. 147, 151 n.4 (1978); Pollard’s Lessee, 44 U.S. at
222-24. The state held title to the land, so the federal government had no property rights to grant to third parties. That the
United States cannot grant property rights it does not have
does not mean that it cannot gain new property rights through
its power of eminent domain.
C
[6] The Lands Commission relies on the law of federal
navigational servitude in trying to make its case. We are not

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persuaded. The federal navigational servitude derives from
the Commerce Clause, ensuring that:
All navigable waters are under the control of the
United States for the purpose of regulating and
improving navigation, and although the title to the
shore and submerged soil is in the various states and
individual owners under them, it is always subject to
the servitude in respect of navigation created in favor
of the federal government by the constitution.
Corvallis Sand, 429 U.S. at 375-76 (quoting Gibson v. United
States, 166 U.S. 269, 271-72 (1897)). The Lands Commission
contends that the federal navigational servitude defines “the
extent to which the states have surrendered their public trust
rights by the Constitution.” It relies on quotations such as:
Upon the admission of California into the Union
upon equal footing with the original States, absolute
property in, and dominion and sovereignty over, all
soils under the tidewaters within her limits passed to
the State, with the consequent right to dispose of the
title to any part of said soils in such manner as she
might deem proper, subject only to the paramount
right of navigation over the waters, so far as such
navigation might be required by the necessities of
commerce with foreign nations or among the several
States, the regulation of which was vested in the
General government.
Weber v. Bd. of Harbor Comm’rs, 85 U.S. 57, 65-66 (1873).
The Lands Commission argues that “the scope of that surrender determines the limits of the federal government’s eminent
domain authority over” California’s public trust rights, and
that these surrendered rights “do not include the ability of the
states to protect their sovereign lands from the federal government’s selling those lands free of the public trust.” Again, the
Lands Commission mistakenly equates a restriction on what

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the United States may do when it does not have title to land
into a limitation on when the United States may take unencumbered title through eminent domain. There is no precedent
nor any good reason to thus limit the federal constitutional
power to take land for public use while paying just compensation. We hold that the scope of the federal navigational servitude does not limit the United States’ power of eminent
domain.
IV
The Lands Commission contends that the public trust doctrine restricts the ability of both federal and state governments
to alienate public trust lands free of the public trust. It invokes
Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892),
where the Supreme Court held that a grant of submerged land
by the Illinois Legislature was necessarily revocable, such
that the legislature’s subsequent repeal of that grant did not
violate the Fourteenth Amendment or the Contracts Clause.
The legislature had granted Illinois Central Railroad substantial portions of the Chicago waterfront and all of the Chicago
harbor for its private use. In holding that grant revocable, the
Court reasoned that:
The ownership of the navigable waters of the harbor
and of the lands under them is a subject of public
concern to the whole people of the State. The trust
with which they are held, therefore, is governmental
and cannot be alienated, except in those instances
mentioned of parcels used in the improvement of the
interest thus held, or when parcels can be disposed
of without detriment to the public interest in the
lands and waters remaining.
Id. at 455-56. The Lands Commission argues that this reasoning distinguishes California’s title in “sovereign public trust
lands” from its interest in “proprietary lands,” and that its
public trust rights cannot be extinguished because they are an

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aspect of its sovereignty. But the Lands Commission presents
no valid reason why this state law distinction restricts federal
power.
Illinois Central has been cited by the Supreme Court of
California as “the primary authority even today, almost nine
decades after it was decided,” on the state’s sovereign duties
and powers as trustee of the public trust. Nat’l Audubon Soc’y
v. Superior Court, 33 Cal. 3d 419, 437 (1983). Illinois Central
has also been repeatedly recognized by the Supreme Court of
the United States as “necessarily a statement of Illinois law.”
PPL Montana, LLC v. Montana, 132 S. Ct. 1215, 1235 (2012)
(quoting Idaho v. Coeur D’Alene Tribe, 521 U.S. 261, 285
(1997)). It is state law that determines what rights and privileges in submerged lands may be granted by a state to private
individuals:
[E]ach State has dealt with the lands under the tide
waters within its borders according to its own views
of justice and policy, reserving its own control over
such lands, or granting rights therein to individuals
or corporations, whether owners of the adjoining
upland or not, as it considered for the best interests
of the public.
Shively, 152 U.S. at 26. The powers and privileges of states
are deeply respected in our federal system, but when there is
a conflict between state and federal law, it is federal law that
has supremacy. U.S. Const., art. VI, cl. 2; see id., amend. X.
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
by the United States Constitution. PPL Montana, 132 S. Ct.
1215 at 1235. Holding that California’s public trust interest in
the Property survives the federal government’s attempt to
condemn it would subjugate the federal government’s eminent domain power to California’s state law public trust doc-

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trine. See Carmack, 329 U.S. at 240-42; United States v.
11.037 Acres of Land, 685 F.Supp. 214, 217 (N.D. Cal. 1988)
(holding that California’s public trust is extinguished by
United States’ declaration of taking because state law public
trust is trumped by federal power). The Supremacy Clause
prevents this outcome. U.S. Const., art. VI, cl. 2.
V
[7] Finally, the Lands Commission argues that the United
States’ taking of the Property subject to a “quiescent” trust
would serve the Navy’s purpose equally well, so preserving
California’s public trust would not frustrate the federal government’s power of eminent domain. We reject this argument.
The United States is seeking to extinguish California’s public
trust, and whether it could accomplish its objective by taking
a lesser interest in the Property is irrelevant. “Once an administrative agency designated by Congress has been delegated
authority to take lands for a public use, the courts have no
jurisdiction to review action of that administrative agency in
its determination as to the parcels of land that are or are not
necessary to the project.” United States v. 0.95 Acres of Land,
994 F.2d 696, 699 (9th Cir. 1993) (quoting United States v.
80.5 Acres of Land, 448 F.2d 980, 983 (9th Cir. 1971)). The
United States Navy has determined that it wants to take the
Property in full fee simple, unencumbered by California’s
public trust, to fulfill its military mission for the nation. We
do not have jurisdiction to review the wisdom of that determination.
VI
In the well-chosen words of Justice Holmes, “if there is
such a thing as a new title known to the law, one founded
upon the taking by the right of eminent domain is as clear an
example as can be found.” Emery v. Boston Terminal Co., 178
Mass. 172, 184 (1901). The United States seeks to establish
such a new title here, and has paid the $2,910,000 a jury

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determined was just compensation to extinguish the property
rights of California and the San Diego Port District. Having
paid just compensation, the United States is entitled to the
interest it sought in its complaint in condemnation: full fee
simple, free of California’s public trust. We have concluded
that neither the equal-footing doctrine nor the public trust
doctrine prevents the federal government from taking that
interest in the land unencumbered.2
AFFIRMED.

2

Because the United States did not appeal from the district court’s determination that a federal public trust arises in the 4.88 acres of the Property
that currently remain tidelands, we do not address that determination.