Posted on June 17, 2014 by H. Thomas Wells Jr.
The ownership of riverbeds can be an important question when development of minerals (coal, oil and gas, etc.) includes lands on which there are non-tidal surface streams. Under what is called the “equal footing doctrine”, each State owns the beds of all streams that were “navigable in fact” at the time that particular State entered the Union, or streams that were “tidal”, or subject to the ebb and flow of the tide.
Thus, claims of ownership of riverbeds of non-tidal streams depend upon the condition of the stream at the time of statehood, and upon the type of boats that were commonly used for commerce at that time. This becomes more of a historical research project than a legal analysis.
For example, in one recent case, involving Montana’s ownership claims to some streambeds, Justice Kennedy relied on the notes and letters of William Clark and Meriwether Lewis (of the famed Lewis and Clark Expedition) in ruling on the ownership claims. Montana, which was attempting to collect some $40 million in rent from the operator of hydroelectric dams, lost because Lewis’ and Clark’s notes showed there were five waterfalls, including one of over 80 feet, which required them to traverse overland via portage before finally putting their boats back in the water. Because of the need for portage around the waterfalls, the stream segments in question were not “navigable in fact”.
If you are involved in any matter involving the title to riverbeds, because of the equal footing doctrine, you need to be equally adept at historical, as well as legal, research.