Title: Execuive Council Summary of the Sovereignty Lands Problem
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Permanent Link: http://ufdc.ufl.edu/WL00000953/00001
 Material Information
Title: Execuive Council Summary of the Sovereignty Lands Problem
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Execuive Council Summary of the Sovereignty Lands Problem Proposed Solution
General Note: Box 7, Folder 4 ( Vail Conference 1989 - 1989 ), Item 52
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00000953
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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I/PPT, Executive Council Summary of

the Sovereignty Lands Problem


I. Historical Background of State Lands and Genesis of the Problem:

The State of Florida upon becoming a state automatically acquired title to lands under
navigable waters (so called "Sovereignty Lands") through the "equal footing" doctrine. Shortly
after Florida became a state, the United States commissioned a survey of the State of Florida,
directing its surveyors to "accurately meander, by course and distance all navigable rivers ... all
navigable bayous flowing from or into such rivers; [and] all lakes or deep ponds." These surveys
were completed, submitted to the state and approved.

In 1850, Congress granted the state title to over 20 million acres of "Swamp and Over-
flowed" (S&O) lands. The lands were patented using the descriptions from the official U.S.
Government surveys, making no mention of any unmeandered waterbodies shown on the property.
After the S&O lands were patented, the state began actively selling off the S&O lands, again
utilizing the descriptions contained in the U.S. Government surveys. The deeds were absolute on
their face and purported to convey all of the Trustees' interest in the land. They made no
mention of unmeandered waterbodies, even when such waterbodies were dearly shown on the
surveys. Moreover, the landowners paid a set price per acre, with the total based on the total
acreage in the parcel, again without any adjustment for any waterbodies. The purchasers paid
taxes on the land, farmed and built homes and other structures, all without any indication that
the state might claim some interest in the property described in their deeds.

II. Governing Legal Doctrines:

There are basically five legal doctrines which come into play in this area. They are:

A. If a given waterbody was navigable on March 3, 1845, (the date of Statehood) the
lands under that waterbody are Sovereignty Lands and ownership passed to the State by
virtue of it becoming a state (the Equal Footing Doctrine). Note that the test is navig-
ability when Florida became a state, not current navigability.

B. The dividing line between public and private ownership of lands adjacent to state-
owned freshwater waterbodies is the Ordinary High-Water Line (OHWL). The most recent
Florida case addressing the issue, concluded It]he ordinary high water line (OHWL) is
described as 'the point up to which the presence and action of the water is so continuous
as to destroy the value of the land for agricultural purposes by preventing the growth of
vegetation. Board of Tnrstue v. Waker Ranch 496 So. 2d 153, 155 (Fla. 5th D.CA. 1986)
quoting Tden v. Smith 94 Fla. 502, 113 So. 708,712 (1927).

C. Changes in the OHWL resulting from slow, natural processes (accretion, reliction and
erosion) change the dividing line between public and private ownership. Avulsive changes
resulting from sudden or artificial changes affecting the OHWL do not affect the boundary
between state and private ownership. Thus, as the natural movement of waters build up or
erode lands along one side of a waterbody, the line of demarcation between public and
private ownership adjusts to correspond to the then existing OHWL. On the other hand,
avulsive changes do not change this line of demarcation and over time a significant gap may
develop between the water-line and the public-private boundary.

D. There is a rebuttable presumption that waterbodies which were meandered in the

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original U.S. government surveys were navigable and conversely that unmeandered water-
bodies were not. This however is not an absolute rule, but may be challenged in court.

E. The state does not lose title to any Sovereignty Lands through the application of the
Marketable Record Title Act, the doctrine of contemporaneous determination (determination
by the original surveyors), or the doctrine of legal estoppel (if you sell something you don't
own and later acquire it, title passes automatically). This was the holding of Coastal

III. The Problem:

The problem in the wake of the Coastal decision is one of uncertainty. For years, the
practicing bar, relying on a series of cases implicitly overruled by Coastal had believed that if
the state sold land to you, and that deed contained no exclusion for waterbodies and the official
survey showed no navigable waterbody, you owned the land. Moreover, the bar believed that
MRTA and other title doctrines confirmed this common-sense result.

Coastal held that MRTA could not be used to quiet title to Sovereignty Lands, leaving it to
lower courts to decide (1) whether a given waterbody was navigable in 1845 and (2) where the
OHWL would be had there been no avulsive changes in the last 140 years. Both of these
determinations are difficult, requiring fact and expert intensive proofs, and are likely to yield
uncertain and inconsistent results.

Absent the serendipitous location of some ancient document demonstrating navigability, there
is no direct manner of determining whether a given waterbody was navigable on the date of
statehood. The determination of the OHWL is more complex still--it requires an analysis of all
avulsive changes since statehood. In order to determine the boundary between state and private
land--which owing to avulsive changes, likely does not coincide with the current OHWL--co(
must analyze the interaction of a host of complex factors.

This uncertainty was brought to the forefront in Coastal where the state claimed (1) that
the Peace and Alafia Rivers, North of Township 39 South, although not meandered, were navig-
able and thus state property, and (2) that because of avulsive lowering of the water, the area
owned by the state extended hundreds of yards beyond the physical river, past a cypress swamp
to the upland edge of an area of mixed hardwoods. Such expansive state claims cast a "sover-
eignty cloud" over much of the land in this state. Absent a judicial declaration, no one can
state with certainty whether a given parcel close to an arguably navigable waterbody (whether or
not riparian) is in fact avulsively exposed sovereignty land. The fact that an individual has a
deed from the state, has improved the property and has paid taxes does not matter. It may still
be state land.

Even though "avulsive change" is a seemingly innocuous standard, its potential scope is
broad and subject to no proximate cause type limitations. In Coastal the Trustees alleged three
separate categories of first-order artificial change: (1) Pumping of ground water in surrounding
areas, (2) elimination of some fifty square miles of tributary drainage area upriver, through
building and the like, and (3) installation of dams on a series of lakes which control flow into
the upriver collection areas. One can plausibly allege that these factors impacted on almost
every waterbody in Florida.

Moreover, there are no limits on the types of impact which can be argued. Potential argu-
ments include: (1) that increased water pumping from the Green Swamp in northern Polk County
lowered the Floridan aquifer, thus lowering the waterlevels in Lake Hancock and the Peace River.
(2) The same argument could be made regarding pumping further north in Lake City and in









Okefenokee swamp. (3) Likewise one can allege an impact by the incomplete Cross Florida Barge
Canal on the aquifer.

The end result is great uncertainty about whether a waterbody was navigable in 1845, and if
so, how wide it would be today, had there been no avulsive change. One simply can't tell
whether a given parcel of riparian property belongs to the state; nor can most individual
landowners afford the great costs of litigating such a fact and expert intensive quiet title action
to completion.

IV. The Proposed Solution:

While the proposed legislation is lengthy, owing to a need for avoiding numerous constit-
utional pratfalls, the substantive provisions fall into neat steps:

A. D.N.R. is directed to compile a list of all waterbodies which are currently navigable.

B. After review and approval by the Governor and Cabinet, any state claim to lands not
included on the list of currently navigable waters would be released to the record title
holder. This would occur regardless of 1845 navigability and will immediately eliminate the
uncertainty surrounding the ownership of lands adjacent to the great majority of smaller
waterbodies.

C. As to waterbodies determined to be currently navigable, D.N.R. (again subject to
confirmation by the Trustees) would be directed to determine and formally describe the
current OHWL. This avoids the need to determine where the OHWL was 140 years ago and
any need to address the purely hypothetical question of where it would be today but for
intervening avulsive changes.

D. The lands lying above the current OHWL (as determined above) would be confirmed in
the landowner of record, and unless the landowner objects, the lands below that line in the
state. This legislative confirmation permanently resolves the problem of changes which
occurred over the preceding 140 years. No administrative body would be able to successfully
allege that lands above the determined OHWL were actually state lands as a result of past
avulsive changes, nor would a private landowner be able to assert ownership to currently
navigable waters.

E. The upland landowner would be granted a limited Special Riparian Easement in non-
meandered waters. This special riparian easement would permit the landowner to continue
making limited use of the lands under the waterbody, subject to regulatory authority and
public navigation, for such things as docks and fences. As the easement is only granted in
waters which were not originally meandered, it will, for the most part, not affect larger
waterbodies. Likewise, given long standing usage and a justifiable belief that these were
privately owned lands, such an easement is equitable.

F. Future changes in the OHWL, whether avulsive or not, would be governed by the
current body of common law. Private riparian rights would continue largely unaffected.
Although this leaves the potential for future avulsive changes to recreate the problem in
another 100 or so years, the initial hurdle of navigability will be behind us. Moreover, it is
thought that in light of current practices of recording waterlevels and controlling ground
water usage that it will be easier to identify and measure the impact of future avulsive
changes.


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The remainder of the proposed legislation sets forth detailed methods to be used in deter-
mining navigability, the current OHWL (avoiding arguments made in Coastal for a subtly differ(
more inclusive OHWL), and identifying swamp lands. It also includes the following provisions
designed to avoid constitutional challenges alleging a taking of property or an improper dis-
position of Sovereignty Lands:

1. An express finding that the grant of what may have been sovereignty lands is in the public
interest. Such is necessary in order to comply with Art X, section 11 of the Florida Con-
stitution. As the constitution does not specify who must make the finding, the statute includes
findings by both the Legislature and the Trustees of the Internal Improvement Trust Fund.

2. There are a number of provisions designed to afford protections to the riparian landowner
and to preserve the statute over a taking claim. These are as follows:

a. The Governor and Cabinet must review the designation of waterbodies as navigable and
the determinations of ordinary high water line. It is not simply an administrative determin-
ation by D.N.R.

b. There are express procedures by which the riparian landowner can object to a designa-
tion of a waterbody as being navigable. Upon objection to the designation,

i. The matter is reviewed by the Governor and Cabinet, who are expressly directed
to consider whether the property may have previously vested in the landowner and
have authority to change the designation.

ii. Upon an unsatisfactory resolution by the Governor and Cabinet, the landowner
can file an action. In this action, the landowner can elect to challenge the des(
nation on the basis of present navigability or based on the common-law test or
whether the waterbody was navigable on the date Florida became a state. This is
necessary to avoid a successful taking challenge.

d. The landowner can object to the determination of the current OHWL, alleging that the
actual line is somewhere else, or to the use of a current OHWL standard. Such a challenge
is brought directly to court without administrative/trustees review. The proofs are too
factually intensive to be effectively handled in an administrative or political forum. In
order to survive constitutional scrutiny, the landowner is given the option of adopting the
current OHWL standard or of relying on the common-law test of where the OHWL would
fall, but for avulsive changes.

3. In recognition of the equities, the state and persons claiming through them are barred from
pursuing any claims against landowners for prior usage of sovereignty lands. The statute
provides a means by which other parties can file suit (if ripe) or a notice of claim (if not ripe)
to preserve their existing rights and claims. The filing period is limited.

BENEFITS OF THE LEGISLATION:

1. Certainty of Title.

2. Confirms state title to presently navigable waterbodies, without putting state in position of
proving that an unmeandered waterbody was navigable in 1845 over the presumption of non-
navigability. There are a number of waterbodies, where whole segments can be shown not to
have been navigable in 1845, which today, due to dredging and filling are navigable. Th(









waterbodies/segments are not presently state owned, although there may be an easement by
O longstanding usage. The flip side of this is equally true, the State will lose title to some now-
exposed sovereignty lands. This is the necessary trade off for acquiring title to presently
navigable waterbodies which were either not navigable in 1845 or which were created avulsively.

3. Confirms title of what have long thought to be, and taxed as, privately owned uplands in
the record owner.

4. Legislatively confirms the common law definition of OHWL and avoids subtle administrative
redefinition. The definition adopted comports with traditional understandings of the boundary
line between public and private ownership.

DRAWBACKS OF THE LEGISLATION:

1. Cost! This argument takes two forms. First, the cost of meandering potentially thousands
of miles of shoreline will be significant. Unlike the cost of litigating over many small parcels or
the impact of eroding the tax base on many of Florida's most valuable properties, this is a
current cost. Second, there have been a number of situations in which administrative bodies
have denied permits alleging that a project encroaches on sovereignty lands. D.N.R. then offers
to sell or lease the area of encroachment to the upland owner, for not insignificant fees. In the
future, as greater use is made of waterfront properties, the revenue to the state from this source
can be expected to increase.

2. Arguably reduced environmental protections of sensitive wetlands. As this legislation will
confirm some putative state lands in private ownership, it will undoubtedly convey some wetlands.
The question then becomes one of whether the wetlands can be as well protected through
wetlands regulation (as presently exists) as it can through state ownership.

3. The granting of the special riparian easement will permit encroachments into public water-
ways. Even though the encroachments are expressly restricted to areas where they will not
impact on public use of the waterbody and are subject to state regulation, there will be an
impact. This must be balanced against the benefit to usage of confirming that a given waterbody
is public.



















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