Important Federal Court Ruling on Potomac River Submerged Lands
The U.S. District Court for D.C. (Judge Henry Kennedy) has just issued an important decision regarding submerged lands underlying the Potomac River and public access and navigation rights. United States v. Robertson Terminal Warehouse, Inc. et al., Civ. Act. 73-01903 (HHK) (Sept. 3, 2008). It should resolve the continuing dispute on the upper Potomac involving the National Park Service (NPS), the private party claiming ownership of the riverbed, and float trip outfitters in the Harpers Ferry area. The Potomac River is a federally navigable river.
Over 20 years ago, the U.S. initiated a quiet title action against the Old Dominion Boat Club (ODBC) in Alexandria, VA. The claim was that ODBC had illegally filled and built docks on the Potomac River submerged lands owned by the U.S. These initially submerged lands were part of Maryland’s 1791 cession of lands and submerged lands to the U.S. to create the District of Columbia (the Potomac River is under the jurisdiction of D.C and Maryland; Virginia has no ownership interests in the River).
In a detailed history of the River’s ownership, the Court noted that fee title to the riverbed was held by the King of England and referred to as the “jus privatum”. Shively v. Bowlby, 152 U.S. 1 (1894). However, this fee title was subject to a public right of navigation and fishery known as the “jus publicum.” Shively at 11-13. Whoever owns the riverbed holds it subject to the jus publicum. Accordingly, the District Court ruled “neither the King nor those to whom the King granted title could interfere with the public right of navigation and fishery on these waters.” Decision at 8.
For the upper Potomac, this means that even though Maryland may have conveyed the riverbed to the predecessors of Potomac Shores, and Potomac Shores may in fact hold fee title to the submerged lands, its ownership remains subject to the jus publicum. That bars it from interfering with the public right of navigation including ingress and egress to the River from adjacent public lands.
The NPS lawyers are aware of this case. AO's attorney intends to use the ruling to overcome NPS's opposition to outfitters' access of the Potomac for float trips and ask for a definitive response that (1) NPS recognizes the jus publicum on the upper Potomac and (2) that Potomac Shores has no legitimate basis to object to the issuance of Commercial Use Authorizations that may lead to members of the public “trespassing” on privately owned riverbed.
How to Expand Your Market, Grow Your Business, and Have More Fun! Secrets from a Mystery Shopper's Diary
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