Chapters 5 and 6 lay out the U.S. Constitutional basis for the “equal footing” doctrine, and past as well as more recent Supreme Court cases explicating the doctrine. The doctrine originated in debates and enactments incident to the formation of the Union. It was seen as fundamentally important that all of the states, the thirteen original states, and states subsequently formed, be equal in every respect. There was to be no second-class statehood. This history was most fully laid out in the 1894 case, Shively v. Bowlby. Shively made clear that the common law of England dictated intertidal land law in the colonies. It went on to note: “Upon the American Revolution, these rights, charged with a like trust, were vested in the original states within their respective borders….” The court went on: “The new states admitted into the Union since the adoption of the Constitution have the same rights as the original states in the tide water and in the lands under them within their respective jurisdictions.” This surely must include Maine.
Focusing more directly on the case at hand, Shively noted: “From all this it appears that when the State of Oregon was admitted into the Union, the tide lands became its property and subject to its jurisdiction and disposal….” The Shively court also recognized that it was the Oregon legislature (not its courts) that for marine commerce or other public purposes had the power to alienate (transfer title to) discreet parcels of intertidal land and land underlying navigable waters. It pointedly noted:
“The authority conferred by the statutes of Oregon upon upland owners on navigable rivers [or abutting tide lands] to construct wharves in front of their land did not vest any right until exercised, but was a mere license revocable at the pleasure of the legislature until acted upon.”
This nuanced approach to the alienation of trust property is identical to the approach taken in the previously noted Illinois Central case.
Earlier and later U.S. Supreme Court cases support and reinforce the Shively holding. In 1842 Martin v. Lessee of Waddell was decided. The court held: “…when the Revolution took place, the people of each state became themselves sovereign; and in that character hold the absolute right to all their navigable waters and the soils under them….” A prior British grant, similar to the Colonial Ordinance, no longer had legal force.
In 1845 Pollard v Hagan was decided. The court, citing the Congressional Act of 1787, held that whenever a proposed state shall have sixty thousand free inhabitants “…such state shall be admitted …into the Congress of the United States, on an equal footing with the original states in all respects whatever. Addressing the issue before it Pollard noted: Then to Alabama belong the navigable waters, and the soils under them, in controversy in this case….” Prior Spanish grants no longer had legal force.
In 1891 Knight v. United States was decided. The court noted: “It is the settled rule of law in this court that the absolute property in, and dominium and sovereignty over, the soils under the tide waters in the original states were reserved to the several states, and the new States since admitted have the same rights … as the original states possess….”
In 1947 United States v. California was decided. The court, citing the “equal footing” doctrine and the Martin and Pollard cases, held that “…the original states owned in trust for their people the navigable tide waters between high and low water mark … and the soil under them….” It follows then that “California has … ownership of lands under inland navigable waters such as, rivers, harbors, and even tidelands down to the low water mark.”
In 1988, after Bell I was decided but well before the Bell II decision, the Supreme Court decided Phillips Petroleum v. Mississippi . The Phillips court, citing Shively and Knight, noted: “At common law, the title and dominium in lands flowed by the tide water were in the King for the benefit of the nation….Upon the American Revolution, these rights, charged with a like trust, were vested in the original states within their respective borders…. The new States admitted into the Union since the adoption of the Constitution have the same rights as the original states….” Again, prior Spanish grants no longer had legal force.
In 2007 PPL Montana, LLC v. Montana was decided. The court noted: “The title consequences of the equal footing doctrine can be stated in summary form: Upon statehood, the state gains title within its borders to the beds of waters then navigable, or tidally influenced.”
In sum, the “equal footing” doctrine coupled with acceptance of English common law by the new nation accords Maine the same title to its intertidal lands and lands underlying navigable waters (including the right to alienate discreet parcels of such lands to meet marine commerce or other public needs) as Oregon, New Jersey, Alabama, California, Mississippi, and Montana were accorded by the unbroken line of Supreme Court cases noted above. Anything less renders the “equal footing” doctrine a nullity. The Bell cases, however, have erroneously and inexplicably ignored the doctrine, the fact that the new nation embraced common law principles with respect to ownership of lands underlying navigable waters and intertidal lands, and 170 years of Supreme Court case law. A reexamination of the Bell holdings by the Law Court (with respect to the issue of ownership of intertidal lands) is long overdue. Failing that, recourse to the U. S. Supreme Court, whose view on these matters seems clear, is both necessary and appropriate.