Navigational Servitude May Not Be A "Blanket Exception" To The Takings Clause...But It's Still A Big One

In Kaiser Aetna v. United States, 444 U.S. 164 (1979), a case won by my Damon Key partners Charlie Bocken and Diane Hastert, the Court held the navigational servitude does not create a "blanket exception to the Takings Clause whenever Congress exercises its Commerce Clause authority to promote navigation." The servitude gives the public a right of access to waters that in their natural condition are actually navigable, and absolves the federal government from liability for compensation when land subject to the servitude is taken or damaged, the the theory being that navigable waters are not part of a riparian or littoral owner's "bundle of rights" --  

The navigational servitude is an expression of the notion that the determination whether a taking has occurred must take into consideration the important public interest in the flow of interstate waters that in their natural condition are in fact capable of supporting public navigation. See United States v. Cress, 243 U.S. 316  (1917). Thus, in United States v. Chandler-Dunbar Co., supra, at 69, this Court stated that "the running water in a great navigable stream is [incapable] of private ownership. . . ."

But the government doesn't automatically win just by invoking the servitude. In Kaiser Aetna, the Court held the scope of the navigational servitude did not have the same breadth as the government's regulatory power over navigable waters which is nearly all-encompassing. The servitude is narrower, and if the government wants to compel public use of waters subject only to regulation, it must condemn and pay just compensation. After Kaiser Aetna, the test for whether the servitude applies is whether a waterway is navigable in its natural state. The case was the result of an unusual fact pattern, but its principles are not limited, as noted in its companion case, Vaughn v. Vermilion Corp., 444 U.S 206 (1979) (per curiam), and in later cases such as Alameda Gateway, Ltd. v. United States, 45 Fed. Cl. 757 (1999). Those cases held that if land not subject to the servitude is made navigable by dredging or other private improvement, the newly-created navigable water may not automatically be subject to the servitude. 

What does the above have to do with the Federal Circuit's opinion in Northwest Louisiana Fish & Game Preserve Comm'n v. United States, No. 2008-5039 (July 31, 2009), a case involving the navigational servitude?  In reality not much, since the opinion appears to be a straightforward application of the navigational servitude to deny compensation after the federal government took actions that resulted in unwanted aquatic growth in a lake maintained by the Commission. But the case gives us an excuse to talk about the edges of the navigational servitude doctrine, which have always been more interesting than its more routine applications.

Northwest Louisiana is one of those typically fact-intensive servitude cases involving reclamation and flood prevention projects, and the thigh-bone-is-connected-to-the-hip-bone tracing of waterways. In this case, it's about the Red River, the Saline Bayou, and the Black/Clear Lake, a system that starts in Texas and ends up in Louisiana. Read the opinion for the details, but the short story is that the Army Corps of Engineers raised the water level of one of the lock and dams along the Red River, which prevented the Commission from releasing water from a dam, which in turn caused "uncontrolled growth of aquatic weeds in Black/Clear Lake, rendering portions of it useless for recreation.

The Court of Federal Claims, as we noted here, dismissed the Commission's inverse condemnation claim and the Federal Circuit affirmed. Since the Black/Clear Lake is navigable, any damage to the lake below the ordinary mean high water mark (OHWM) is noncompensable. The reason we mention the "blanket exception" language from Kaiser Aetna is that the court disposed of a claim by the Commission that the lake was exempt from the servitude:

Turning to the Appellant’s second argument, the Government’s navigational servitude does not create a blanket exception to Fifth Amendment takings. See Kaiser Aetna v. United States, 444 U.S. 164 (1979) (considering whether there was a physical invasion)....The Appellants submit that Black/Clear Lake falls well outside the physical OHWM of the Red River and that, even if the Government’s actions were within the OHWM, the effects spread outside of the OHWM and amount to a compensable taking.

This court has recognized that Government action with effects outside the OHWM may amount to a compensable taking. See Owen, 851 F.2d at 1418. In Owen, the Corps dredged and widened portions of the Tombigbee River. Id. at 1406-07. The dredging caused an increase in water speed and drastically increased erosion of the river bank. The erosion eventually undermined the land owner’s property and caused her house to collapse into the river. Id. In weighing Owen’s property interest against the Government’s interest in controlling navigable waters, this court concluded that a compensable taking had occurred, even though the water had not been raised above its OHWM and was therefore technically within the government’s dominant servitude[.]...This case, however, does not present a situation analogous to Owen.

Here, the Commission’s property interest—the ability to draw down the Black/Clear Lake in order to control unwanted aquatic weed growth—arises from access to, and use of navigable waters. See, e.g., Willow, 324 U.S. at 503. As such, the Court of Federal Claims properly found that the Commission’s economic value in the property arose from access to and use of a navigable waterway. Thus, the navigational servitude bars the Commission’s taking claim.

Slip op. at 10-11.

The most curious part of the opinion is Judge Rader's short concurrence:

While I endorse the reasoning and results of the panel, I write separately to highlight a distressing ambiguity in this court’s binding precedent. Neither this court nor the Supreme Court has proffered any material basis justifying a different treatment of navigation versus other Fifth Amendment public purposes. Why should navigation be received any differently than highway transportation, public safety, or environmental protection? In light of the special protections afforded to navigation, it seems only prudent that such a material basis be provided.

Judge Rader has a point, and it is difficult to draw a principled distinction between a taking for navigation and all other public purpose takings. Will the Supreme Court take up Judge Rader's challenge and clarify whether the navigational servitude has outlived its usefulness? Don't hold your breath on that one -- the servitude has been around since at least Roman times, and it's unlikely to disappear any time soon.