UNDERSTANDING AMERICAN PROPERTY RIGHTS
SECTION 3 : THE COMMERCE CLAUSE
The federal government has no authority to enact uniform national legislation merely on the basis that an issue involves more than one State. Barring a legitimate nexus in interstate commerce, States may settle differences or form agreements by interstate compact - subject to approval by Congress, or by Supreme Court adjudication.
DEVELOPMENTS IN THE COMMERCE CLAUSE
U.S. v. LOPEZ
NAVIGABLE WATERS AND THE COMMERCE CLAUSE
[Comments regarding Ken Maurer's request to the State of California (State Lands Commission) to have the Scott River declared "navigable"]
ADMIRALTY & MARITIME JURISDICTION
Article III, Section 2, Clause 1 of the Constitution; English definition of "admiralty" and "maritime"; Judiciary Act of 1789; broadening of definition to that of the Law of Nations; admiralty v. State jurisdiction (U.S.v. Bevans.)
MODIFICATION of MARITIME LAW THROUGH THE COMMERCE CLAUSE
Maritime law -licensing of vessels and promulgation of rules as to their operation; modification initially based on Article I, Section 8, Clause 3 of the Constitution;; later change to use of so-called "Admiralty Grant" (second prong of "Necessary & Proper" Clause) as foundation for legislation in areas of maritime law.
GIBBONS v. OGDEN
ADMIRALTY - "NAVIGABLE IN FACT"
Traditional English rule - high seas and rivers influenced by the ebb and flow of tide; Americanization to natural and artificial waterbodies capable of carrying on commerce regardless of tidal influence.
COMMERCE CLAUSE - "NAVIGABLE IN FACT"
The Daniel Ball - capable of use in ordinary condition as highways of commerce; natural state - not artificial; customary mode of water trade and travel; generally useful and beneficial to commerce and agricultural trade; not irregular or temporary use; power to remove and erect obstructions, prescribe form and size or vessels, regulate and license construction of vessels, improve navigability of watercourse.
"NAVIGABLE WATERS" of THE STATES
Public "ways" in navigable rivers internal to the States; Common Law - State sovereign lands or "public trust" in bed and banks to high water mark of tidal navigable waterways, low water mark of non-tidal waterways; private ownership of bed and banks of non-navigable waterbodies.
STATE DETERMINED RIPARIAN OWNERSHIP
Common Law rights of riparian owners below high water mark of navigable streams and in bed and banks of nonviable streams; landings, wharves, piers; free communication between upland to point of navigable channel; reclamation of submerged lands; right of flow for water power; dams
Riparian rights in navigable waters subordinate to public's common right of navigation - no compensation for "takings"; navigational servitude standard of legitimate purposes of protecting and improving public navigation; servitude does not extend above high water mark; riparians on non-navigable streams not subject to servitude - compensation for "takings."
SUBORDINATED RIPARIAN RIGHTS
"PURPOSE OF NAVIGATION"
BED AND BANKS
NOT SUBJECT TO SERVITUDE
"NAVIGABLE WATERS" of THE UNITED STATES
Form in ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce carried on with other States or foreign countries by customary modes; navigable waters accessible from a State other than that in which they lie; substantial and permanent character of commerce; not waterbodies where commerce internal to States; not small streams that are not habitually used as arteries of interstate commerce.
CONTINUOUS HIGHWAY or CHANNEL IN NATURAL STATE
"DORMANT" COMMERCE CLAUSE
State powers of internal improvement in public ways (bridges, turnpikes, streets, canals, ferries, railroads;) State "police powers" to protect peace, order, health, life and safety of citizens; State law stands unless repugnant to Constitution or pre-emptive federal law; commercial power of Congress on subjects of "national character" that require uniform regulation - not of a local character; inaction of Congress = assumed consent; exclusive State jurisdiction, concurrent jurisdiction, exclusive federal jurisdiction.
FEDERAL STATE INTERFACE
WILLAMETTE IRON BRIDGE v. HATCH
No common law of United States prohibiting obstructions and nuisances in navigable rivers - unless action falls under maritime law.
RIVERS & HARBORS APPROPRIATION ACT (1890 & 1892)
Requirement for Secretary of War to approve location and construction plans for all bridges, bridge-draws, bridge piers and abutments, and other works over navigable waterways of U.S.; power to require alterations or removal of bridges that cause obstructions to navigation; prohibition on excavation, fill, alteration or modification of channel course, location, condition or capacity without approval and authorization by Secretary; power to establish "harbor lines" beyond which riparian owners may not extend structures (wharves, piers, dolphins, booms, dams, weirs, breakwaters, jetties); Is in addition to requirement for State approval of when and where a bridge may be built; dependent upon factual obstruction of navigational capacity; does not disturb appropriative water rights on non-navigable streams.
EFFECTS OF ACT
RIVERS & HARBORS APPROPRIATION ACT (1899)
Adds modification of ports, roadsteads, havens, harbors, canal, lake, refuge or breakwater inclosure to modifications of channels as prohibited without recommendation by the Chief of Engineers and approval by the Secretary of Army; States to retain concurrent jurisdiction in regards to original authorization; power of flood control extends to tributaries of navigable streams in order to protect the "navigable capacity" of the navigable stream; a dam constructed for electrical generation was considered within jurisdiction of the Commerce Clause as long as project also served flood control purposes .
NAVIGABLE CAPACITY - FLOOD CONTROL
FEDERAL WATER POWER ACT - PRE-EMPTION OF STATE "POLICE POWERS"
PURPOSE OF THE ACT
NAVIGABLE CAPACITY "IMPROVED CONDITION"
FEDERAL JURISDICTION - "PURPOSES OF COMMERCE"
FISH AND GAME - The Commerce Clause and the State "police powers"
REGULATION OF FISH AND WILDLIFE
STATE CLAIMS OF OWNERSHIP
UNDERLYING FEUDAL - BY VIRTUE OF SOVEREIGN CAPACITY
IN PUBLIC TRUST OF THE "COMMONS"
GEER v. CONNECTICUT (1) (2)
MCCREADY v. STATE OF VIRGINIA
HUGHES v. OKLAHOMA, OVERTURNING GEER v. CONNECTICUT
STATE POWER TO DETERMINE PROPERTY
CONSERVATION -REGULATION OF FISHING & HUNTING - POLICE POWERS
SECTION 4: IMPLEMENTATION OF TREATIES
Executive and Senate treaty powers; "Self executing" Treaty provisions; statutory implementation; lack of special status of federal statutes implementing a treaty; supremacy of Constitution over a Treaty; supremacy of a treaty over State law to contrary; federal systems and binding powers of a Treaty.
[It should be noted that the author is not an attorney. The comments presented are the author's opinion and should not be construed in any manner as legal advice or counsel. Concepts presented are intended for discussion purposes only. Full text of Supreme Court decisions may be located though "FindLaw" on the Internet. ]
Copyright 1998, 1999,2000 Marcia H. Armstrong. All rights reserved. Permission granted for non-commercial use and distribution with appropriate attribution to sources.