United States v. Rands

PETITIONER:United States
RESPONDENT:Rands
LOCATION:WAFB TV

DOCKET NO.: 54
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 389 US 121 (1967)
ARGUED: Oct 18, 1967
DECIDED: Nov 13, 1967

Facts of the case

Question

Audio Transcription for Oral Argument – October 18, 1967 in United States v. Rands

Earl Warren:

No.54 United States Petitioner versus R. B. Rands et al.

Gentlemen, before Mr. Gooch and Mr. Douglas, I’d just like to say that this is another case where counsel is representing an indigent defendant.

And I want to tell you what a comfort it is to the Court to know that lawyers and various communities are willing to give their services to a cause of this kind because every man, rich or poor should have a defense through counsel.

So, I appreciate very much and in behalf of the Court, I express it to you, Mr. Gooch, for having accepted this responsibility.

And Mr. Douglas, of course, we appreciate the manner in which you represent the State of Texas in this manner.

Mr. Rifkind.

Robert S. Rifkind:

Mr. Chief Justice, may it please the Court.

This case involving the condemnation of respondent’s land is here on writ of certiorari for the Ninth Circuit.

It raises an aspect of the recurring problem of the relationship of the property rights of riparian landowners to the power of the Federal Government over navigation and navigable waters.

In particular, the question presented here is whether when the United States condemns riparian land for use in a river improvement project it must pay the owner not only for the land’s value as upland, but also for such incremental value as the land may have as a site for a port.

Respondents owned two tracks of undeveloped land containing a total of approximately 260 acres lying along the Oregon Shore of the Columbia River some 250 miles up from the Pacific.

It was taken in connection with the John Day Lock and Dam; a project authorized by Congress in 1950 as part of a comprehensive program for the development of the Columbia River and distributaries.

The John Day Dam is a multipurpose project designed for flood control, hydroelectric power, and navigation.

And I think that there can be no doubt here that the project serves a bona fide navigational purpose.

When completed, the dam will create a lake of some 75 miles which will fill an important missing link between the lakes created downstream and upstream by prior dam projects.

It does complete a slack water navigational passage running hundreds of miles from the Pacific Coast into the interiors, all the way to Idaho.

It was estimated in 1950 that the gain to the economy from the dam’s navigational function alone exceeded in $1,948 dollars, a million and three quarter — one and three quarter million dollars per year.

The creation of the lake which will be approximately 100 feet deep at the dam site inevitably involves a degree of flooding of uplands because respondent’s tracks are within the area to be flooded.

The United States commence this condemnation proceeding in 1963.

The sole question litigated below was the amount that the United States must pay for the property taken.

Although respondents sought to raise other issues both courts below held that they had not done so in a timely fashion.

And that aspect of the case has not been brought before this Court.

We do not have here therefore any challenge to the validity of the taking as it proper exercise of the Government’s powers of eminent domain, nor any question as to the use that may subsequently be made of the land taken.

With respect to the issue of compensation, respondents indicated before trial, they would seek to prove that most of the land was useful for agriculture and for the extraction of gravel and sand.

But that a small portion of the land had a higher value because of its utility as a port site.

The reasons which I will return to in a moment, the District Court excluded all evidence of port site value.

A jury awarded some $7,000 for one fact on the basis of agricultural and mineral uses.

And the party stipulated that $2,400 was appropriate compensation for the other track.

William J. Brennan, Jr.:

Well, was there any evidence at all of whether the value for — as to port site?

Robert S. Rifkind:

There was an offer of proof after the district judge’s ruling.

Robert S. Rifkind:

And there is an affidavit of a sea captain, river captain who says I think that a — not less than $50,000 would be appropriate for the port site.

William J. Brennan, Jr.:

Quite very large for a port site?

Robert S. Rifkind:

It’s a — as far as I can tell, it’s not entirely clear but both facts weren’t litigated but I think it’s something like 30 acres.

There is evidence or there is an offer of evidence that historically there was a landing of a sort not developed but simply a place where a boat could pull up alongside the shoreline.

And the water was deep there.

The district —

Earl Warren:

What is the value of the land that it has — from the judgment?

Robert S. Rifkind:

The combined judgment covering both tracks of 260 acres is $9,000.

Earl Warren:

$9,000?

Robert S. Rifkind:

$9,000 somewhat.

Earl Warren:

And the land — I understand this land has since been leased or was leased before that?

Robert S. Rifkind:

It has subsequently been sold —

Earl Warren:

Pardon?

Robert S. Rifkind:

It has subsequently been sold together with several thousand other acres to the State of Oregon by the United States, the United States reserving an easement to flow so that this land can be underwater as far as the Federal Government is concerned.

The State of Oregon has some interest in developing the whole area as an industrial park, I believe for the Boeing Corporation.

Earl Warren:

Is there anything there would indicate what the rental value of this particular piece of property is?

Robert S. Rifkind:

Well, there is this evidence — this offer would have to be tested and I don’t know whether it was an offer made in light of the Government’s project already underfoot.

But there was a negotiation between the State of Oregon and respondents and an agreement between them which was — for an option to purchase this land.

At which time, the State of Oregon I believe, agreed to an option price for purchase of $400 per acre for the port site part of the land.

Earl Warren:

30 acres?

Robert S. Rifkind:

Something like 30 maybe 50 acres, something like that.

I’m sorry I can’t be more precise about what is actually the port site but the evidence is quite incomplete.

The District Court’s decision that the respondents are not entitled to compensation for the land’s utility as a port site was based on the premise that such utility was entirely dependent of the land’s location on and access to a navigable river.

And that such use was therefore subject to the historic servitude or power of the Federal Government over the navigable waters of the United States.

In this respect, the District Court believed correctly we submit that it was bound by this Court’s decisions in United States v. Twin City and United States v. Virginia Electric Power.

Those cases both held that when the United States takes land — riparian to a navigable stream, it need not pay compensation for so Much of the value of that land as may be attributable to power site value.

The District Court found that it could not distinguish between power site value and port site value.

It pointed out that both involved the exploitation of the navigable stream and both can’t be operated without the navigable stream.

Earl Warren:

That port site value, what area do — would you include?

How much of it could the Government consider as a port site in the situation of this kind so as to reduce the judgment?

Robert S. Rifkind:

Well, we were willing to — we were willing and more or less to agree that anything they said was a port site.

We just said we didn’t have to pay for the port site value in anything.

Earl Warren:

Yes, by port site, do you include this — I understand this was made an industrial park where —

Robert S. Rifkind:

Well —

Earl Warren:

— suppose where industries could buy in the land and put up industries barely close to the port and so forth as a —

Robert S. Rifkind:

Well, let me be –Do you think

Earl Warren:

the Government — made the Government have that to develop the water way?

Robert S. Rifkind:

Well I’m not clear.

It — I’d like to make it clear that my respondent’s land is completely underwater or will be very shortly so that it —

Earl Warren:

Well, there is a difference —

Robert S. Rifkind:

Potentially — yes sir.

Potentially it’s a port site only in the sense that the State of Oregon may sink piles in the mud.

If there’s going to be a port in the future there, it isn’t the port that the Rands owned or thought they owned.

Byron R. White:

Well, I thought the Federal Government would have transferred the land to Oregon for the condition on it that this land would be used as a port site or it can revert for United States.

Robert S. Rifkind:

Well, this and the several thousands or 2,000 other acres were to be developed for industrial and port purposes.

I don’t know exactly what that means in view of the fact that this land is underwater.

I assume it means that Oregon ought to dredge it and put up buoys or put up down piles for piers.

Byron R. White:

Well, it seems to me that if you are going to cover this land so that it would have no value as a port site, wouldn’t have any value as of — as in a — as land on which you operate a port.If you’re going to cover it up well that’s the easy answer to the United States against the — this case.

This didn’t have any value for the port sites.

Robert S. Rifkind:

Well, it had so —

Byron R. White:

It seems to me with the United States so as the State of Oregon you either use it for a port or you got to give it back to us.

They — you do say that it doesn’t have a port site value.

It doesn’t answer whether you have to pay for it.

Robert S. Rifkind:

Right,

Byron R. White:

It’s another question.

Robert S. Rifkind:

I suppose what the United States is stating to Oregon is, that you use this entire track on the portion of which is going to be underwater, as a port site to the extent that it can be utilized as a port site.

The portion that’s underwater is utilized as a port site only to the extent that it supports piles.

William J. Brennan, Jr.:

And the fact that it — that some of it was used as an industrial park, it doesn’t mean there won’t be a port there.

That’s another track for having a port site.

Robert S. Rifkind:

Absolutely, I gather that’s a very — the substantial reason for having.

Robert S. Rifkind:

We’re here concerned with two constitutional provisions, the Commerce Clause which has long been held to include the power in the United States to control navigation, and the waters on which navigation is conducted.

And the Fifth Amendments command that private property not be taken without just compensation.

I think I might mention first the perfectly familiar proposition that while the Fifth Amendment undertakes to redistribute to the public, certain economic losses inflicted by public improvements, it surely does not redistribute all such losses.

It redistributes only those which result from uptaking of private property.

And not all economic interests have been regarded traditionally as private property or indeed it’s a property.

And not all loses of value result from takings.

The respondents undeniably had a valuable economic interest in the utility of their land as a port site.

We don’t deny that in transactions between private individuals, they might or might not have realized some value for that utility.

Abe Fortas:

Aren’t there two possible constructions in the term port site on that it’s a port site without reference to what the United States did to the stream and two, that it’s a port site in terms of the U.S. development of the stream and which you are talking about here.

Robert S. Rifkind:

Well, I take it and there I think in fairness their offer of proof indicates that it had historically been used as a landing before any (Voice Overlap) acts —

Abe Fortas:

As I understand that but the value that it had as a historic landing might be considerably less than its value as a port site after the U.S. development.

Robert S. Rifkind:

I think that’s right.

No one ever reached the point of determining how much of the port site —

Abe Fortas:

Yes, but what is it theoretically and conceptually?

Let us say if you assume that the respondent is entitled to compensation for the port site value, are we talking about the port site value before or after the improvement?

Robert S. Rifkind:

I think by traditional rules they were — it was the port site value before the John Day project.

Abe Fortas:

Yes.

Robert S. Rifkind:

But after sec — projects that could be regarded as separate by Bonneville, Grand Coulee, whatever else we might bear on.

Abe Fortas:

Why is that?

I thought — if that is so, why wouldn’t it be after the John Dam improvement period, Bonneville and the others were improvements by the United States.

Robert S. Rifkind:

Well, my understanding is that to take it out of the navigational context, the Government doesn’t pay enhancement resulting from the very project of these — for the taking.

But it does pay such enhancement as it results from other activities the Federal Government has engaged in.

Abe Fortas:

Was that the rule of law?

Robert S. Rifkind:

I think —

Abe Fortas:

(Inaudible)

Robert S. Rifkind:

— this Court has decided that.

Abe Fortas:

I beg your pardon.

Robert S. Rifkind:

I think this Court has so held in a fair number of cases.

Abe Fortas:

That you do pay thinking of counting the incremental value from government projects except for the one that led to the taking?

Robert S. Rifkind:

I think it would — it lead to impossibility if you didn’t say that because you’d think — begin to worry about the value of having the military.

Abe Fortas:

But I’m not sure that —

Robert S. Rifkind:

I don’t think that’s the question that any court here has reached nor that this Court has to reach now.

William O. Douglas:

Does the record show any tonnage of wheat rather than (Inaudible) passes through this area where the port is located?

Robert S. Rifkind:

I don’t think it shows anything in very mathematical terms.

The affidavit submitted is an offer of proofs by the captain, indicated that he had been bringing grain and lumber back and forth.

And undoubtedly, we would certainly concede that at least since the Federal Government started working on the Columbia River, the amount of commerce has increased very substantially.

William O. Douglas:

Where does it (Inaudible)?

Robert S. Rifkind:

It is at some points how busy it is at this particular juncture where navigation has been so much more difficult than lower down.

I don’t know.

Perhaps you know better than I.

Now we submit that a port site in the sense that respondents use it in the sense that it’s just not the water is nothing more or less than a stepping stone into the water, the inter-navigable water.

Its value is precisely the value of access to and the use of an artery of commerce.

That right of access and use as we recognize among the bundle of rights that have been traditionally protected under state law as riparian rights.

But like all other riparian rights access and use is a qualified right, qualified traditionally by the compatible interest of other riparian owners.

And it is also clear that on a navigable stream, riparian rights are subject to the paramount qualification that has been termed the Federal Government’s navigational servitude.

That is to say that the exercise of its powers under the Commerce Clause, Congress may authorize projects which will impair or utterly destroy riparian rights as recognized by the state law on navigable waters without compensation.

That proposition is established by decisions of this Court going back more than a century.

And I don’t think it is seriously open to dispute today where that respondent’s dispute it.

It is based, we believe, on the very wise perception.

But the great navigable waterways of a nation, waterways down which flow the commerce of the nation.

Waterways which were of critical importance to opening up the continent and waterways on which we just currently spend something like a billion dollars a year to perfect and improve that those waterways are national assets.

As the Court said in Gilman v. Philadelphia and 3 Wall, for purposes of commerce, the navigable waters are the public property of the nation.

Under these circumstances to require the United States to pay for riparian rights destroyed through river harbor improvements would be to create private planes in the public domain as this Court said in Twin City.

In some, vis-à-vis the United States, riparian owners enjoy no private right to exploit navigable waters for which they must be compensated under the Fifth Amendment.

Now to be sure in the present case, there’s a taking of fast land.

That is land above the high water mark of the river.

For the val — land’s value as upland, we concededly must pay just compensation but we deny that the United States must pay for the privilege previously enjoyed, the special advantage previously enjoyed by respondents abusing a public waterway.

I think there is an analogy here to the decision of this Court in United States v. Powelson, where the Court rejected the contention that the landowner’s privilege to use the power of eminent domain under a state grand enhance the value of the condemned property because it created a possibility of uniting it with other tracks.

The Court said that the landowner’s privileged there was not private property as contemplated by the Fifth Amendment.

And that an award based on that privilege, on that advantage, would be an appropriation of public authority to a holy private end.

Robert S. Rifkind:

Precisely here, we think that the advantage of using that water, water which is — belongs to the public is not the sort of economic interest for which the public has to pay when it wants to improve that waterway.

Now even more in point of course, other courts relatively recent positions in Twin City and Virginia Electric.

In both cases, the Court held that the landowners were not entitled to compensation with the power site value of their lands.

Mr. Justice Stewart wrote for the Court in Virginia Electric, “Just as the navigational privilege permits the Government to reduce the value of riparian lands by denying the riparian owner access to the stream without compensation.

It also permits the Government to disregard the value arising from the same fact of riparian location in compensating the owner when fast lands are taken”.

That I believe is precisely our case.

Now to distinguish the power site cases, respondents urge the Congress has established a much more rigorous system of regulation of power sites under the Federal Power Act than — over port sites under the Rivers and Harbors Act.

But the type of regulation that has been found desirable on either subject can tell us nothing about what is permissible under the Commerce Clause or required under the Fifth Amendment.

The fact that Congress has found a more relaxed mode of regulation but not a missing mode of regulation appropriate for ports and harbors, doesn’t tell you that that exhaust their authority.

And it certainly doesn’t tell you the full scope of the Government’s navigational servitude.

There’s also a suggestion which may have been shared by the court below that because this Court has always spoken of the flow of the stream as that in which there is no private interest, it referred only to moving water and ports don’t require moving water although power sites do.

But I think that that must be fanciful.

I just can’t see — no one has been able to explain how any constitutional doctrine can depend on the rapidity with which the water moves.

There has never been a suggestion by this Court that the Federal Government’s interest is limited to the motion of the water as opposed to the water itself in whatever state it may be.

There is also a suggestion —

Potter Stewart:

But it is limited to a navigational servitude whatever that might be, isn’t it?

Robert S. Rifkind:

That’s right.

And I would suppose there has to be a navigational purpose or at least some purpose within the ambit of the Commerce Clause.

Potter Stewart:

I know.

Byron R. White:

Does someone who wants to develop a port on a stream like this have to have a permit from the Federal Government?

Robert S. Rifkind:

The rules as I understand it are that until the Corps of Engineers establishes a harbor line, you have to get permission to build anything.

Now, I suspect that small scale that’s honored in the bridge but in theory at least until a harbor line is drawn, you’ve got to get approval from the Corp of Engineers.

Once a harbor line is drawn, you can build up to the harbor line and not beyond and you have to get permission to do anything other than that.

Byron R. White:

Would the United States within its navigational servitude have the right to say of a port should not be located at this point, at point A but rather at point B?

Robert S. Rifkind:

Unquestionably.

It seems to me that if —

Byron R. White:

So if the United States decided that there should be a port on this area but at point B, there will not be one at point A, this land would’ve had no value as a port site.

Robert S. Rifkind:

I think that’s right.

I think tomorrow the Corps of Engineers could decide with the interest of navigation required making the Oregon side of the stream the navigable channel and that all appears must be on the Washington side of the stream.

Byron R. White:

But there’s no riparian right to use the water for a port — leaving and coming to land.

Robert S. Rifkind:

Absolutely not.

Indeed as Justice Black wrote for the Court, there is no right to fish in the stream if the Federal Government has a valid basis for excluding you from the stream.

Indeed, not withstanding the attempts to distinguish the power site cases, we think that if any distinction between the two situations is to be recognized, it surely must be that historically and logically, port sites are more obviously embraced by a navigational servitude than power sites.

River and postal traffic was one of the original and principal concerns of the Commerce Clause.

Until this century, waterpower was at most a relatively peripheral matter.

Indeed federal hydroelectric projects have generally been justified as ancillary to some navigational purpose.

And while power projects can utilize both navigation — navigable and non-navigable waters, of course, navigability and navigable waters is the very essence of a port’s utility.

We submit that that Government’s position here is not to be distinguished from the power site cases but rather follows a fortiori from them.

And in conclusion, we urge that the Fifth Amendment does not require the public to pay for terminating the special advantage previously enjoyed by respondents in this artery of commerce.

We urge that the Court of Appeals decision be reversed and that of the District Court reinstated.

Earl Warren:

Mr. Parks.

Alex L. Parks:

Mr. Chief Justice, may it please the Court.

We submit that in this particular case the Government position — Government’s position ignores the basic distinction between ownership on the one hand and control on the other.

We freely concede the Government’s undoubted power of absolute control over navigation and all the incidents of navigation.

We’re not therefore concerned with such situations as occasion which the build — the government itself may build docks and wharves in front of the riparian owner’s property and thereby cutoff his access.

This was the situation in Gibson versus United States and Scranton versus Wheeler.

We’re not concerned about the Government moving back the harbor line as it is done in one instance in the past, and sustained by this Court in GreenLeaf versus — GreenLeaf Johnson Lumber Company.

We’re not concerned about the Government dredging up materials into passing them in front of our lands.

This is the Commodore (Inaudible).

We’re not concerned about the value of the uplands because of the value in the flow a stream.

That is in the movement of the water passed the riparian owner’s properties.

This was a situation in Chandler-Dunbar, in Twin City, and also in Virginia Power.

What we really are concerned about is, can the value of land taken under the power of eminent domain and that’s how the Government proceeded in this case.

Can it be ignored because of its riparian location rather than perhaps increased in value as one would logically assume would be the case.

Byron R. White:

But the value that you’re talking about is a value as an enhancement which flows from the use of water in some way maybe not in the flow but in the use of it.

Alex L. Parks:

Oh, yes of course (Voice Overlap) —

Byron R. White:

We’re not just talking about enhancement from location.

You’re talking — it’s got to be used of the water.

I suppose if the Government were condemning lands which have been used as houses is the — there — if the property has more value because if — had a pretty view and was alongside the river, you might recognize that value because of its location.

This value you’re talking about is involves the — flows from the use of water, participated in use — in the use of the water at the port site.

Alex L. Parks:

I think this necessarily follows, —

Byron R. White:

Yes.

Alex L. Parks:

–Mr. Justice White.

And in connection with your question of counsel a moment ago, I think I should clarify that the value of this land is depended upon its value at the time of taking.

And the time of taking of course is prior to the completion of John Day Dam.

And therefore its value and its natural state prior to the elevation of the pool level.We of course could claim no incremental value nor would we in the event the land were valued after the dam had been built if this is conceivable.

This in essence was a situation in the River Rouge Improvement Case.

There, the Court sent back the case to the lower court because of improper constructions by the lower court relative to the value to be deducted because of the existence of the Government’s improvement.

As a matter of fact we rely very heavily on River Rouge as well as Chandler-Dunbar in connection with our claim that we’re entitled to compensation as a port site.

Our lands were for practical purposes of little value except as a port site.

It’s what is commonly known in Oregon as jackrabbit land.

It was certainly with very little as grazing land.

Historically this particular location, this site was the old Castle Rock landing at which turn wheelers and barges landed and discharged various cargos, wool, oil and wheat.

Now clearly the State of Oregon regarded these lands as being of considerable value as a port site because they sought an auction from the owner for $400 an acre for use as a port site.

Keep in mind that at this time the State of Oregon desperately had to have this waterfront land in order to complete its Boeing Space Age Park, is what they called it.

This was a concept by the State of Oregon in which they exchanged and purchased lands for the United States to create a large missile testing site which then they in turn at least devoid.

By contrast of course under the award, the value received by the owner was approximately according to the Government’s brief of $36 and not calculated at 20.

Nonetheless, as if to add insult to injury, the Government condemned.

They refused to pay 1 cent for the port site value.

They immediately turned around and conveyed the lands to the State of Oregon.

Byron R. White:

What statute was it condemnable?

Alex L. Parks:

It was condemned on the Rivers and Harbors Act.

There’s no question about it being (Voice Overlap) —

Byron R. White:

Is there any standard of value in the Rivers and Harbors Act?

Does it say fair market value or what does it say?

Alex L. Parks:

Its fair market value, yes sir.

Byron R. White:

Well, there’s no doubt that between private parties, this land could’ve been bought and sold at a —

Alex L. Parks:

Substantial.

Byron R. White:

— considerably enhanced price because of its value as a port.

Alex L. Parks:

No question about it Your Honor.

Byron R. White:

So a — but you aren’t arguing but — and but United States — even if it has a fair market value in the private market as a port site, the Government is arguing what, that a –?

Alex L. Parks:

It’s arguing that it can take it in not pay one cent for the value as a port site.

Byron R. White:

Because it’s constitutionally entitled to do that?

Well, what if Congress intended to give you the value of the port site?

I guess there’s — it’s not against that — that doesn’t make them unconstitutionally?

Alex L. Parks:

Apparently not if they give it away.

Only if they take it.

Byron R. White:

I know but if they say, “We will pay the fair market value of the land”, then the issue becomes what is fair marketing — what its fair market value mean in the intent of Congress.

Alex L. Parks:

That is correct.

And generally speaking in term —

Byron R. White:

And they constitutionally been able to exclude the port site value but did it?

Alex L. Parks:

We contend it did not.

Fair market value has been construed by enumerable cases both by these Courts — by this Court and all the courts in this country as being its highest and best use.

Unquestionably the highest and best use of this particular land was as a port site.

It certainly was worth very little, it was grazing land.

Now and the Government condemned, refused to pay a cent, conveyed the lands to the State of Oregon for the express purpose —

Earl Warren:

Mr. Parks, could you speak a little (Voice Overlap) —

Alex L. Parks:

I’m very sorry.

Earl Warren:

— more direct into the microphone please.

Alex L. Parks:

After having received the conveyance, the State of Oregon then in turn lease the lands to the Boeing Company.

And both conveyance is subject to port site was discussed.

And the Government’s quitclaim deed, they recognized that these lands were valuable as port site and industrial lands.

And obviously, the only ones who have — which were of any considerable value as a port site would be those in front of the water after the elevation of the pool.

I might also comment on — for whatever bearing it may have on the facts that not all of the respondent’s lands are being emendated.

It’s true that the pool elevation does bring the water level up and cover part of the lands but not all of the lands.

Most important is we view the matter, it doesn’t require the completion of John Day Dam to render these particular port site lands valuable as port sites.

The water depth in the Columbia River even before John Day was authorized were some 15 feet directly in front of these properties, and was thus more than, equipped with barge transportation with or without John Day Dam.

I might say that hadn’t this had not been the case.

And I think it rather doubtful that we would have been entitled to any compensation at all these port site lands.

It has to be the state of the lands prior to the governmental improvement not afterwards.

Alex L. Parks:

And it also has to be whether or not they were valuable as a port site at the time of taking.

We rely of course most heavily on the Chandler-Dunbar, which of course was the case that was primarily the basis for the United States versus Twin City.

And Twin City and Virginia Power of course, are the two cases upon which the Government most heavily relies.

It will be noted that in Chandler-Dunbar which primarily concerned hydroelectric site development, there was no award given for lack in canal purposes.

There was also an award given without any argument, any contention on the part of the Government for wharves and docks.

And that’s the same situation we have here, we call it a port site.

It’s valuable as a port site only because of the right to wharf out.

Abe Fortas:

Did you have wharves and docks at this port site before flooding?

Alex L. Parks:

We did not at the time of taking, Mr. Justice Fortas.

Abe Fortas:

Was it developed at all?

Alex L. Parks:

It had been used historically and there was a whole landing there at one time.

Abe Fortas:

Well, was it developed at all as a port?

Were there any structures which were used as port facilities?

Alex L. Parks:

Not at the time of taking.

No sir.

Abe Fortas:

Well, had there been historically?

Alex L. Parks:

Yes sir.

Abe Fortas:

And how long ago had they existed?

Alex L. Parks:

Around the turn of a century, as near as we can tell.

Byron R. White:

Also the state (Inaudible) on this land for port development purposes?

Alex L. Parks:

Yes, they — they’ve secured an option from us only —

Byron R. White:

For $50,000?

Alex L. Parks:

Sir?

Byron R. White:

For $50,000?

Alex L. Parks:

Well, it — roughly around that figure.

It was $400 an acre for a certain number of acres.

Interestingly enough, the state’s option was on a lease which they got from us for $1 a year.

And then after they found that they were going to have the Federal Government condemn them instead of pay for it, they turned around and held the land under the terms of the tenure leased.

It’s a very interesting proposition.

Byron R. White:

Have they paid the Government 17 for it?

Alex L. Parks:

Sir?

Byron R. White:

Had they — had the — how much did Oregon pay the United States for the land?

Alex L. Parks:

Approximately for this section, $20 an acre, essentially what —

Byron R. White:

$17,000?

Alex L. Parks:

Somewhere around there sir.

But you see there was a lot more land involved in the conveyance so it’s a little difficult to segregate the two transfers.

Now, in this connection that is with respect to wharves and docks and the Chandler-Dunbar cases, this Court said, these two parcels seemed to have been connected by a costly fill.

They front it upon deep water above the head of the rapids.

They have therefore a special value for wharves and docks and so forth, and have been so used.

The gross sum awarded included the following elements.

(A) For general wharfage, dock and warehouse purposes disconnecting with the development of power in the rapids.

Subsequently, this Court have self-noted in Twin City that Chandler-Dunbar gave compensation for canals and locks.

The Court stated in part in a Footnote, it may be that the Court was influenced by the fact that on a special fact of the case, the use of the land for canals and locks was only consistent for the dominant navigational servitude of the United States and indeed they aided navigation.

The Court could just as easily have used the term wharves and docks as these two usually were held compensable in Chandler versus Dunbar.

And of course, Chandler-Dunbar was expressly stated in the Twin City case as the case which controls Twin City.

It’s never been overruled, nor until this case arose, has the correctness for the payment of compensation for wharves and docks ever been questioned.

This is the first time the question has ever risen.

As a collateral matter, as I pointed out earlier, we think that River Rouge is also directly applicable because this is the case that arose under 33 U.S.C. (a) — 595, which provides that in ascertaining the value of properties, you shall not take into consideration any increment of value by reason of the Government’s improvement.

In that particular case, they — there were some confusion over what are riparian rights?

What do they mean?

Are they rights of substantial value?

This Court held that the instructions of the trial court to the jury on this question did not sufficiently emphasize the historical value of riparian rights and therefore that the jury undoubtedly did not deduct enough from the award relative to the increment in value by reason of the improvement.

Now it seems impossible to us to acquaint the result in River Rouge with the contention now being made by the Government.

If any increment in value due to the waterway improvement must be deducted, how can it logically be argued that it’s fair and proper to disregard the initial value which existed long prior to the development?

In fact, it’s rather interesting that the lower court’s instruction in the River Rouge Case is essentially what the Government is contending today.

When River Rouge was being argued before this Court, I would — the Government took just the opposite position.

Now it’s true as the counsel pointed out that we contend that there’s no dependency here on the floor of the stream.

Mr. Justice White, you pointed out correctly so sir that the presence of water is absolutely necessary, or else you don’t have a port site.

However, hydroelectric site that is a wholly dependent upon the flow of the stream, in this case no such dependency exists.

As results have pointed out in Twin City was respect to the Court’s reasoning in Chandler-Dunbar, the use of respondent’s port site lands is wholly consistent with the dominant navigational servitude of the Government and in fact would actually aid navigation.

Alex L. Parks:

A hydroelectric power site to be of value requires the dam across the entire reach of the stream.

And thus, in a sense, is inimical to navigation unless locks are installed in the dam.

Port site value exist however particularly in this case whether or not a dam has ever constructed.

Hydroelectric power site value is relatively new in concept, it having come into existence chiefly in the last 50 to 75 years.

On the other hand, port site values date back to the inception of English jurisprudence and have always been recognized as valuable riparian rights.

We further contend the Congress has in the Submerged Lands Act indicated a national policy to protect and preserve the property rights of the states and their grantees in submerged imminent waters.

It will indeed be anomalous to preserve such rights in submerged lands and deny those same rights with respect to upland properties.Our stating at another fashion, the Submerged Lands Act makes it perfectly clear that ownership of riparian lands is vested in the states and their grantees, control of the navigation remains in the Federal Government.

In this case having elected to proceed by the condemnation route, the Government is obliged to pay just compensation.

Abe Fortas:

But suppose that the — beginning of a century, you’d have — or assume we have assumed that after this technology permitted, it had on this land a wheel that forgives the electric power.

And suppose the Government took that for this purpose, would the Government have to pay me for the value as a site for water power?

Alex L. Parks:

No sir.

Abe Fortas:

But for — what’s the difference?

I think that’s a problem here.

What is the difference between that and the — this parti — in this case that we haven’t before us now?

Alex L. Parks:

I think the essential difference is — differences I should say, plural or two.

One is that historically, riparian property rights have always been recognized as valuable property rights; the right of access, the right of fishery, the right of — in and over the land between high and low watermark.

This concept has never changed at least until this case arose.

But more important, the development of hydroelectric power is not an aid of navigation.

It has nothing to do with the navigability of the stream.

It’s a by-product as it were of the flow of the stream.

Abe Fortas:

Well, that can be argued both ways.

Alex L. Parks:

Unfortunately I can’t.

Abe Fortas:

Unfortunately.

Alex L. Parks:

At first blush, it might seem rather unusual that the Submerged Lands Act would deem to apply to this case at all.

It’s true —

Abe Fortas:

Well, is that your answer to me that you distinguish between the established doctrines to distinguish where the established doctrine about non-compensability of power sites, hydroelectric power sites.

And your claim here on the grounds that one is that there has been a departure from historic doctrine in the case of power sites.

Is that your total answer to me?

Alex L. Parks:

No sir, I would hope not.

Its — may I phrase it in the converse?

Alex L. Parks:

That again to reiterate hydroelectric power is a byproduct of the flow of the stream and has nothing to do with navigation or the navigational servitude.

Moreover it — in a sense is —

Abe Fortas:

Well, that — it seem to be a fortiori but where a riparian right such as the port site where riparian right such as port site is taken over.

Since it does have an intimate relation to the navigability of the stream it seems largely that the Federal Government could take it without compensation.

What’s your answer to that?

Alex L. Parks:

Oh, I have this answer, sir.

I think we’re again confusing perhaps control versus for proprietorship.

No one disputes the right of the Federal Government to build a dike in front of our property and cut off access.

They could do it under the navigational servitude and we have no complaint.

They could dredge.

And pile all of their spoils directly in front of the property and render it absolutely valueless as a port site.

Again, we’re talking about control over navigation — in the navigational servitude.

But when they come to taking actual fee ownership of the property, this is a different story.

They are then taking from the owner some compensable property interest which either before had.

This I think is the basic distinction in this case.

The Government elected itself to proceed on the principles of eminent domain and not by way of control where the streams flow.

This was of course one of the things that was involved in the Submerged Lands Act.

The Court will recall that the primary controversy over the Submerged Lands Act was the impact of the famous decisions of this Court with respect to ownership with the titled lands and the oil lands just offshore.

However, contained in the Submerged Lands Act was also another clause and another provision which in order as Senator Holland said to make assurance doubly sure, they wish to confirm title, actual proprietorship, confirm title to all riparian owners and to the states primarily into their grantees.

But they made one express exclusion in this little Section.

They excluded waterpower or the use of water for the protection of power.

They granted all other proprietary rights to the states and to their grantees.

And as Senator Holland pointed out and I quote, and he said this is his direct statements on the floor of the Senate.

“Taking the nation as a whole there are undoubtedly several billion dollars worth of port facilities alone located on inland waters are on built uplands which were once inland waters”.

So it’s easy to understand why the attorneys general, municipal officers, port authorities, and other similar officials, are deeply concerned in this fight.

And they’re insistent that the Congress show effectually — released to the state and to their grantees all property rights in the inland waters and their beds saving only to the Federal Government those rights which will enable it to perform its constitutional functions.

Senator Holland also continued, he was the principal proponent of the Senate Joint Resolution 13 which later became known as the Submerged Lands Act.

That such developed lands belonging to private grantees greatly exceeded the value of public developments because there are only tens of thousands of such developments in the inland waters of our nation.

A review of the entire congressional record in the debates on the Submerged Lands Act indicates it practically, every decision of this Court for the last hundred years resided.

It’s quite clear that the rationale of the Chandler-Dunbar Case was clearly understood and for that reason a specific exclusion of waterpower, and the usual water for the production of power was put into the Act and no proprietary rights therein were granted to the states where their successors where it signed.

Alex L. Parks:

But I think that clearly the converse appears except for water power and the usual water to produce the power.

The Federal Government in the Submerged Lands Act expressly disclaimed any interest in and in effect quitclaimed all of the proprietary rights in a pertinent to submerge lands lying under navigable waters.

Now interestingly enough the Submerged Lands Act was not cited in either Twin City or Virginia Power Company.

But I think this submission is not at all surprising.

In the first place, the issue in both cases involved only waterpower of the use of water to produce power.

There were no other fast land value such as we find in Chandler-Dunbar, those were not involved in Twin City and Virginia Power.

Potter Stewart:

I thought they were involved in the Virginia Electric Case.

That’s what the case was about, one of the (Voice Overlap) —

Alex L. Parks:

They were fast land values, Mr. Justice Stewart.

Potter Stewart:

Agriculture and timber values and the —

Alex L. Parks:

Yes sir.

Those were the value —

Potter Stewart:

— those were the value of compensation in that case.

Alex L. Parks:

And of course the Court disallowed any fast land values attributable to the waterpower or production (Voice Overlap) —

Potter Stewart:

To their riparian nature of the land?

Alex L. Parks:

I should have stated that no other fast land values of a riparian —

Potter Stewart:

(Inaudible)

Alex L. Parks:

— of riparian nature (Voice Overlap) —

Potter Stewart:

I understand.

Alex L. Parks:

I beg your pardon.

Now attached to Senate Report Number 30 — 133, a supporting authority to the majority report on the Submerged Lands Act was a brief submitted to the committee by the national association of attorneys general.

After deciding several decisions relating to the state proprietorship of submerged lands, the following language appears.

The states submit that the Federal Government has paramount powers over navigable waters to improve and keep them open for public use.

And that the Government has paramount constitutional powers of government over these lands for national defense, commerce and international affairs.

They asked merely that governmental powers be maintained separate and distinct from proprietorship.

And that no exercise of governmental powers be allowed to acquire without compensation resources that have here — before have been considered as part of unattached to ownership with the soil.

The debates in the Senate alone on the Submerged Lands Act occupy some 3,000 pages in the congressional record.

The measure being discussed while technically labeled, Senate Joint Resolution 13 was merely the successor to a host of prior measures to which were passed and then vetoed by the President.

The precise legal issue now before this Court was not specifically discussed as such in those 3,000 pages or at least if it was, I’ve not been able to find it.

But the intent of Congress in passing the Submerged Lands Act to protect all property rights in hearing in waterfront ownership, on inland and coastal waters with the sole exception of waterpower or the usual water for the production of power shows through with complete clarity.

Alex L. Parks:

The importance of the decision in this Court on a national level cannot be overemphasized.

Billions of dollars have been spent in this country to acquire waterfront sites not for the production of power but to enable its owners to have access to navigable water for commercial and recreational purposes.

The economic impact upon waterfront owners throughout the nation with the government’s position is sustained in this case would be catastrophic and would throw in serious doubt the ownership and the use of the riparian lands.

For example, since 1952 more than 6,500 plants have been constructed on the nation’s 25,000 odd miles of commercially navigable stream.

The value of these plants all of whom — all of which are water oriented, that is with docks, and wharves, and facilities, exceed $115 billion.

Over $1 billion was spent last year — in the last 5 years on one stretch of the Mississippi River between New Orleans and Baton Rouge representing 472 individual plants and terminals.

The public investment and public port facilities on our inland waters and harbors is of an excessive $7 billion today.

Let’s take this quick illustration.

Byron R. White:

Well here — I guess — suppose your argument would be to the conclusion wholly commentary to what the counsel for the Government should involve (Inaudible).

You would say the riparian owner (Inaudible) Submerged Lands Act does have the power which the Government (Inaudible) to have the port, that’s point A —

Alex L. Parks:

He could be —

Byron R. White:

And your riparian owner, he should develop a port there.

That’s how we do it.

Alex L. Parks:

No sir, I’m not saying that.

The Government could deny him the right to have a port there by virtue.

Byron R. White:

Well, what — how could you say that the Submerged Lands Act (Inaudible) riparian owners, that is port facilities or (Inaudible)?

Alex L. Parks:

No.

It’s a difference again between ownership and control.

It confirmed ownership in those upland owners and in the riparian owners.

It left control in the Federal Government.

The Federal Government could by placing a harbor line right in front of this land and putting it actually up on the dry land.

Byron R. White:

All I am trying to say is (Inaudible).

Alex L. Parks:

They could even do that.

Byron R. White:

(Inaudible) by someone else, suppose to do it.

Alex L. Parks:

They could even do that.

William J. Brennan, Jr.:

They could do that?

Alex L. Parks:

Yes sir.

Byron R. White:

What that really means there is, the Government still owns the water, right?

Alex L. Parks:

Yes sir.

Byron R. White:

And that they could control the use of it.

Alex L. Parks:

It could control the use of the water.

Byron R. White:

And your value — you’re talking about perhaps on the use of the water.

Alex L. Parks:

I don’t see it that way Your Honor.

I —

Byron R. White:

(Inaudible)

Alex L. Parks:

I — like I said so, I could mean to.

Byron R. White:

(Inaudible) without the use of the water, the value you’re talking about is (Inaudible).

Alex L. Parks:

Yes sir, that is correct.

We do however have uplands involved in this case which are suitable for port sites.

That’s the point I’m trying to make.

Byron R. White:

I know but what’s a port site?

Alex L. Parks:

It’s a site located next to navigable waters.

Byron R. White:

Oh, well, it’s not a port site though except from the assumption that you can use the water.

Alex L. Parks:

Undoubtedly correct, sir.

We have to use the water, there’s no question about that.

Byron R. White:

This really comes to the Submerged Land Act (Inaudible).

Alex L. Parks:

Well if we are to believe what the Attorney General’s brief says, they’re interested in seeing that the Federal Government retains its control over navigable waterways.

But if they take it under the power of eminent domain, they wish to be compensated for it.

I think that’s the intent of the Submerged Lands Act.

Byron R. White:

Well, you know, if they take it that all the United States (Inaudible) you don’t have a water and we can control the — and then the value you’re talking about rest on the use of the water but you don’t own the right to use the water.

You just don’t know that fact at all so why is it (Inaudible).

You can suggest that the Government could’ve, to say without compensating you at all, that you may not use this site as a port.

Alex L. Parks:

I have said — I have agreed that they — under their power of control, they could do that.

Byron R. White:

Well, what is it then that you and the (Inaudible) but that wouldn’t give you a right for compensation.

Alex L. Parks:

May I call the Court’s attention to the Gerlach Livestock Case.

In this case a congressional declaration of policy had declared that the prior appropriation of irrigational water.

Now there again is a use of water.

But if they attempt to take that water or take the uplands which are being irrigated, they cannot do so without paying compensation.

And this is —

Byron R. White:

And what (Inaudible)?

Alex L. Parks:

As irrigation water.

Now here again, that requires the use of water.

I can’t — it’s inescapable.

It’s a question of whether or not Congress intended in the Submerged Lands Act to expand the doctrine to include not only irrigable water and irrigable lands but whether they also intended to cover riparian lands for use as a port.

Byron R. White:

(Inaudible)

Alex L. Parks:

Yes sir, considerably.

Earl Warren:

Mr. Rifkind.

Robert S. Rifkind:

Mr. Chief Justice, please the Court.

Perhaps I might start with the two statutory questions that have come up.

Mr. Justice White was concerned and probably so about the statutory authority under which the condemnation preceding — proceeded Section 591 of Title 33 says that the Secretary of the Army may proceed to condemn land in accordance with the law of condemnation.

It says nothing about any particular standard evaluation and it as far as I know, always been assumed that that was a reference to the constitutional standard of just compensation.

Byron R. White:

What other statutes — does that make any reference to another statute (Voice Overlap) —

Earl Warren:

Well, it just says the law of condemn —

Byron R. White:

(Inaudible)

Robert S. Rifkind:

The law of condemnation.

It doesn’t refer you to Title such and such.

Byron R. White:

(Inaudible) generally applicable, the condemnation statute which — under which the Government concedes the declaration of (Inaudible) etcetera?

Robert S. Rifkind:

There are provisions for expediting the taking and so on.

Byron R. White:

(Inaudible)

Robert S. Rifkind:

As far as I know at the moment, they all simply referred to the constitutional standard or have always been assumed to refer to that standard.

Byron R. White:

You mean, it expressed that there’s no such — that they shall be paid the fair market value (Voice Overlap) —

Robert S. Rifkind:

That’s right.

Byron R. White:

— anything like that?

Robert S. Rifkind:

There’s nothing like that as far as I know just compensation.

In that respect, it differs somewhat from the Federal Power Act which does provide a standard for recapture —

Byron R. White:

Well, if the — why would they (Inaudible)?

Robert S. Rifkind:

That’s all I can say.

Byron R. White:

That’s all the Twin City dealt with.

Robert S. Rifkind:

That’s all the Twin City dealt with.

It’s all that the Court of Appeals dealt with as far as I can say.

Robert S. Rifkind:

The other statutory aspect is the Submerged Lands Act.

And I think that can be dealt with briefly.

Not only did the Submerged Lands Act reserve were not include in its grant to the states or its confirmation to the states waterpower, it expressly reserve to the United States all its navigable servitude.

That is the only thing I think of the whole legislative history that tells you anything about it.

And so I assume that that language brings with it all the traditional language about what that navigable servitude includes.

I think it confuses things to suggest that there’s some inconsistency because the Submerged Lands Act was after all concerned with fee titles to subsoil underwater.

We’re not concerned with the fee title to anything.

We don’t claim that the United States owns the title of the lands underwater, never have.

Not since Pollard and Hagan at least.

It’s perfectly clear that the states owned that title and — or that they are grantees on it.

But that has always been thought consistent with the servitude of the United States for purposes of navigation.

Finally, let me turn briefly to the Chandler-Dunbar case.

Undoubtedly that is one of the cases on which the two power site cases depend.

It is true that in that case, a grant — a compensation was allowed for a piece of land that had utility as the potential site for a canal.

I think three things can be said about that aspect of Chandler-Dunbar because after all the principal thrust of that case is that the United States doesn’t have to pay for power site value.

The three things are all said in Twin City in a Footnote.

They are — perhaps the Court there thought that that was consistent with the navigable uses of the Government.

Perhaps the case ought to be limited to its facts.

And in any event, these were uses of the water — only the indirect sense that they provided a place where you could take boats away from the river, and away from the rapids.

In that sense, it wasn’t a use of the river.

In the sense of a port site or a power site, it was a substitute for the river.

Thank you Mr. Chief Justice.