When the Idaho Land Board disclaims state ownership of formerly submerged land, can it require a 25-foot public-use easement in exchange without it being an unconstitutional taking?
Plain-English summary
Under the Equal Footing Doctrine, Idaho took title to the beds and banks of all navigable waterways below the ordinary high water mark when it became a state in 1890. Those submerged lands sit in trust for the public, with the Idaho State Board of Land Commissioners as the trustee. Over time, water can move and what used to be submerged can become dry land. Riparian owners (the people who own land next to the water) sometimes try to claim that formerly submerged area as their own under doctrines like accretion or adverse possession. The State, as trustee, sometimes pushes back.
The Land Board has had a long-standing practice for resolving these disputes short of litigation: it offers a "disclaimer" of the State's interest in the formerly submerged parcel, but only in exchange for a 25-foot public-use easement that preserves public access to the waterline. The Director of the Department of Lands asked the AG to confirm that practice was legally defensible and not an unconstitutional taking.
The AG concluded the practice was sound. First, under Kootenai Environmental Alliance v. Panhandle Yacht Club (1983), Idaho's submerged lands are subject to the common-law Public Trust Doctrine, meaning the Board owes a fiduciary duty to keep public access for navigation, commerce, fishing, hunting, swimming, and other recognized public uses. The Board cannot just give those lands away. Second, the dispute over where the historical ordinary high water mark was located is genuine, factually difficult, and expensive to litigate; cases like Idaho Forest Industries (1987) and Raide v. Dollar (1921) make clear how complex that determination is. Third, the disclaimer transaction looks like a private boundary settlement under Downing v. Boehringer (1960): two adjoining owners with overlapping claims agreeing on a line and exchanging consideration. Fourth, because the State acts in its proprietary capacity (as a landowner) rather than its regulatory capacity, the takings cases that turn on regulatory or physical invasion (Penn Central, Loretto, Lucas, etc.) do not apply. The Eleventh Circuit said the same thing in Marine One, Inc. v. Manatee County (1990).
The bottom line: a riparian owner who wants the State to release its claim to formerly submerged land has to pay for the release, and the price the State asks (a 25-foot public-use easement) reflects its fiduciary duty to the public. Owners who don't like the price are free to walk away from the disclaimer process and litigate.
Currency note
This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
What is the ordinary high water mark?
The ordinary high water mark, or OHWM, is the line water marks on the soil by covering it long enough to deprive the soil of vegetation and destroy its agricultural value. The standard came from the Idaho Supreme Court's decision in Raide v. Dollar (1921) and was codified at Idaho Code § 58-104(9). The State owns everything below the OHWM as it stood at statehood (1890), subject to the Public Trust Doctrine. Locating that historical line on the ground is often difficult, especially where dams, dredging, or other man-made changes have moved the river.
What is accretion?
The gradual deposit of soil by water that turns formerly submerged land into dry land. The riparian (waterfront) owner generally takes title to gradual accretions on their side of the line (Aldape v. Akins (1983); Nesbitt v. Wolfkiel (1979)). The presumption is that any change to submerged land happened by accretion, but the State or other parties can rebut that with evidence of avulsion (a sudden change in the river's bed), in which case title stays with the original owner (Joplin v. Kitchens (1964)).
Can someone adverse-possess formerly submerged land from the State?
In limited circumstances. Rutledge v. State (1971) held that formerly submerged lands can be adversely possessed if they have lost their value as a public-trust resource through, for example, having dried up and been put to private use over a long period. But Justice Huntley's controlling concurrence in Idaho Forest Industries (1987) carved out an important defense: man-made alterations (like drain-and-fill operations) below the OHWM cannot result in loss of public-trust resources to adverse possession. Otherwise, the AG noted, "the state would be left vulnerable to surreptitious drain and fill operations which would destroy important wetlands."
Why is the 25-foot easement not a taking?
Because the State is not regulating the riparian owner, it is settling a competing ownership claim. A taking happens when the government either physically invades a private owner's property or restricts the owner's use through regulation. Here, the State has its own colorable claim of title to the disputed parcel, the riparian owner has a competing claim, and they are negotiating a deal: the State gives up its claim to the parcel in exchange for a 25-foot public-access strip. The owner is free to walk away if the price is too high. The AG analogized this to a private boundary-by-agreement under Downing v. Boehringer (1960), where neighbors with uncertain or disputed property lines settle by agreement. The Eleventh Circuit reached the same kind of result in Marine One, Inc. v. Manatee County (1990).
What does the Land Board do if it cannot work out a disclaimer?
It can litigate. The opinion lists examples like Erickson v. State (1998) (contesting an alleged OHWM elevation on Lake Coeur d'Alene), Idaho Forest Industries (1987) (challenging ownership claims on Hayden Lake), and Heckman Ranches v. State (1979) (Salmon River OHWM). These cases are expensive and slow, which is exactly why the disclaimer process exists. Both the State and the riparian owner often prefer to settle.
What about the Lake Protection Act?
The Lake Protection Act (Title 58, Chapter 13, Idaho Code) is the statute that lets the Land Board approve encroachments and issue leases on submerged lands of navigable lakes, but only in ways consistent with the Public Trust Doctrine. Approved encroachments must be in aid of commerce, navigation, and recreation, and must not substantially impair the public interest in the remaining submerged lands and waters (KEA, 105 Idaho at 626).
Background and statutory framework
When Idaho was admitted to the Union in 1890, it received title to the beds and banks of navigable waters below the ordinary high water mark under the Equal Footing Doctrine, as confirmed by the U.S. Supreme Court in Shively v. Bowlby (1894). Direction, control, and disposition of those submerged lands are vested in the Idaho State Board of Land Commissioners under Idaho Code § 58-104(9).
The State's ownership is subject to the Public Trust Doctrine, recognized in Idaho through Kootenai Environmental Alliance v. Panhandle Yacht Club (1983). Under that doctrine, the State holds title for the use and benefit of the public; the historic public uses are navigation, commerce, and fishing, and the modern set has expanded to include other recreational uses like hunting and swimming. The Board, as trustee, cannot abdicate this responsibility in favor of private parties, cannot dispose of public-trust lands without explicit legislative authority, and must follow open and visible processes when it acts. Even legitimately allocated public-trust resources remain subject to potential reallocation if circumstances change.
The historical OHWM was codified at Idaho Code § 58-104(9) using the Raide v. Dollar (1921) standard. Original government land surveys used "meander lines," which approximate but do not establish the OHWM (Smith v. Long (1955)). Disputes over where the historical line was are factually intricate; man-made hydrologic changes only complicate the analysis further.
The Takings Clause analysis comes from the Fifth Amendment and the U.S. Supreme Court's takings cases (Penn Central, Loretto, Lucas, First English Evangelical Lutheran Church). The AG's analysis distinguishes regulatory takings from proprietary actions: when the State acts as a landowner negotiating with another landowner over a disputed boundary, it is not regulating private use, and the takings cases that turn on regulatory or physical invasion do not apply.
Citations
U.S. Constitution: Fifth Amendment.
Federal statute: Idaho Admission Act, 26 Stat. 215 (1890).
Idaho Code: §§ 58-104(9), 58-1301; Title 58, Chapter 13.
U.S. Supreme Court: Armstrong v. United States, 364 U.S. 40 (1960); First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S. 304 (1987); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982); Penn Central Transportation Company v. New York City, 438 U.S. 104 (1978); Shively v. Bowlby, 152 U.S. 1 (1894); United States v. 564.54 Acres of Land, 441 U.S. 506 (1979).
Idaho cases: Aldape v. Akins, 105 Idaho 254, 668 P.2d 130 (1983); Downing v. Boehringer, 82 Idaho 52, 349 P.2d 306 (1960); Erickson v. State, 132 Idaho 208, 970 P.2d 1 (1998); Heckman Ranches, Inc. v. State, 99 Idaho 793, 589 P.2d 540 (1979); Idaho Forest Industries, Inc. v. Hayden Lake Watershed Improvement District, 112 Idaho 512, 733 P.2d 733 (1987); Joplin v. Kitchens, 87 Idaho 530, 394 P.2d 313 (1964); Kootenai Environmental Alliance v. Panhandle Yacht Club, 105 Idaho 622, 671 P.2d 1085 (1983); Nesbitt v. Wolfkiel, 100 Idaho 396, 598 P.2d 1046 (1979); Raide v. Dollar, 34 Idaho 682, 203 P. 469 (1921); Rutledge v. State, 94 Idaho 121, 482 P.2d 515 (1971); Smith v. Long, 76 Idaho 265, 281 P.2d 483 (1955); State of Idaho v. U.S. Department of the Interior, No. 97-0426-BLW (D. Idaho 2002).
Other federal cases: Marine One, Inc. v. Manatee County, 898 F.2d 1490 (11th Cir. 1990).
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/Opinion07-1.pdf
Original opinion text
STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN
ATTORNEY GENERAL OPINION NO. 07-1
To: George Bacon, Director
Idaho Department of Lands
STATEHOUSE MAIL
Per Request for Attorney General's Opinion
INTRODUCTION
At the March 13, 2007, meeting of the State Board of Land Commissioners
("Board"), a formal Attorney General's opinion was requested regarding the legal basis
for the Board's practice of requiring a 25-foot public easement in exchange for a
disclaimer of the State's ownership of formerly submerged lands.
QUESTIONS PRESENTED
- What is the Board's role with respect to management of submerged lands?
- What are the legal principles that establish the State's interest to lands adjacent to navigable streams?
- What is the legal basis for the Board's long-standing practice of requiring the exchange of a 25-foot public use easement for the grant of a disclaimer of the State's interest to formerly submerged lands?
- Does the exchange of a 25-foot public use easement for the grant of a disclaimer of the State's interest to formerly submerged lands constitute a taking of private property for a public purpose?
CONCLUSIONS
-
The State of Idaho received title to the submerged lands underlying navigable water bodies below the ordinary high water mark ("OHWM") under the Equal Footing Doctrine upon statehood. Submerged lands are held in trust by the State for the benefit of the public. The Board was statutorily designated as the trustee of submerged lands within Idaho.
-
The legal principles of accretion, reliction and avulsion govern the ownership of submerged and formerly submerged lands below and adjacent to navigable waterways.
-
The legal basis for the Board's long-standing practice of requiring the exchange of a 25-foot public use easement for the grant of a disclaimer of the State's interest in formerly submerged lands is in the nature of the settlement of a private boundary dispute based upon competing proprietary claims.
-
The exchange of a 25-foot public use easement for the grant of a disclaimer of the State's interest in formerly submerged lands does not constitute a taking of private property for a public purpose without just compensation because the easement represents valuable consideration for the State's relinquishment of its claim to ownership of the parcel of land in dispute.
ANALYSIS
A. Under the Public Trust Doctrine, the Board Serves as a Trustee With a Fiduciary Responsibility to Assure Public Access to the Beds and Banks of Navigable Waterways
Under the Equal Footing Doctrine, the State obtained title to the beds and banks of navigable water bodies upon its admission into the Union in 1890. The power to direct, control and dispose of submerged lands is vested in the Board pursuant to Idaho Code § 58-104(9). The State's ownership and the Board's management responsibilities are not without limitation. In Kootenai Environmental Alliance v. Panhandle Yacht Club, 105 Idaho 622, 671 P.2d 1085 (1983) ("KEA"), the Idaho Supreme Court ruled that Idaho's submerged lands are subject to the common law Public Trust Doctrine.
The Public Trust Doctrine requires that the State, through the Board, hold title to the beds and banks of navigable water bodies below the OHWM for the use and benefit of the public. The beneficial uses reserved to the public historically included navigation, commerce and fishing. More recently, courts have recognized a broader range of public uses including public recreational activities such as fishing, hunting and swimming.
The core element of the State's public trust responsibility is that, as trustee on behalf of the public, the State may not abdicate its responsibility for submerged lands in favor of private parties. Nor can the Board dispose of public trust lands unless explicitly authorized by the legislature.
B. The Ownership of the State's Public Trust Resources Cannot Easily Be Factually or Legally Ascertained
The location of the OHWM was established by Idaho common law in Raide v. Dollar, 34 Idaho 682, 203 P. 469 (1921). In Dollar, the court determined that:
The high water mark of the river, not subject to tide, is the line which the river impresses on the soil by covering it for sufficient periods to deprive it of vegetation and to destroy its value for agriculture.
This standard was subsequently codified at Idaho Code § 58-104(9). Determining the State's ownership is predicated upon the physical location of the line that water impresses on the soil at the time of statehood. Because of man's modification of river flows and intervening hydrologic events, establishment of the OHWM is highly complex and difficult.
An owner of riparian property may attempt to prove that the State does not own title to property because it is above the OHWM. In addition, a riparian owner may also attempt to prove that they have acquired ownership of formerly submerged lands under the theory of accretion. Accretion has been defined as the addition of riparian property by the gradual deposit, by water, of solid material causing to become dry land what was previously covered by water. Aldape v. Akins, 105 Idaho 254, 668 P.2d 130 (1983).
Formerly submerged lands of the State may also be acquired by adverse possession. Rutledge v. State, 94 Idaho 121, 482 P.2d 515 (1971). However, in order for formerly submerged lands to be adversely possessed, the lands must have lost their value as a public trust resource. There is a defense, however, to a claim of title to the formerly submerged lands under a claim of adverse possession. In Idaho Forest Industries, Justice Huntley's concurrence cited with approval the principle that man-made alterations below the OHWM will not result in the loss of public trust resources.
C. The Board's Long-Standing Practice of Requiring the Exchange of a 25-Foot Public Use Right-of-way for the Grant of a Disclaimer of the State's Interest to Formerly Submerged Lands is a Programmatic Means of Resolving Boundary Disputes Consistent With the Board's Fiduciary Duty to Protect Public Trust Lands
Given the complexity and expense of resolving disputes between the State and riparian owners, the Board often chooses to compromise disputes relative to the State ownership of submerged land. The State's disclaimer process provides a legally defensible means of resolving disputed claims between the riparian owner and the Board. Claims to the State's formerly submerged lands constitute an expansion of the adjoining riparian owner's property, not a contraction of the riparian owner's claim to title.
The Board adopted the policy of requiring a 25-foot public right-of-way when disclaiming title to formerly submerged lands. The right-of-way preserves the public trust value while providing clear title to the adjoining landowner.
The Department's disclaimer policy is analogous to the resolution of a private boundary dispute by two contiguous real property owners. The Idaho Supreme Court has consistently recognized the validity of agreements between adjoining property owners to establish a disputed property line by agreement. In Downing v. Boehringer, 82 Idaho 52, 349 P.2d 306 (1960), the Idaho Supreme Court explained the doctrine of boundary agreement.
In boundary by agreement, the parties forego litigation in the form of a quiet title action or adverse possession action and compromise on the appropriate boundary. The compromise may involve the payment of compensation or a compromise dividing the disputed property line along an agreed allocated basis.
The Board's long-standing practice of requiring the exchange of a 25-foot public use right-of-way for the grant of a disclaimer of the State's interest to formerly submerged lands is a legitimate compromise in settlement of a disputed property line between adjacent property owners. It is a voluntary agreement entered into between willing parties to resolve a disputed boundary line. It does not constitute a claim by the State against the riparian owner, nor does it represent the Department or the Board acting in its regulatory capacity.
D. The Exchange of a 25-Foot Public Use Right-of-way for the Grant of a Disclaimer of the State's Interest to Formerly Submerged Lands Does not Constitute a Taking of Private Property for a Public Purpose
The Takings Clause of the Fifth Amendment provides: "Nor shall private property be taken for public use, without just compensation." U.S. Const. amend. V.
The Board's long-standing practice of requiring an exchange of a 25-foot public use easement for the granting of a disclaimer of the State's interest to formerly submerged lands is an exercise of the State's proprietary role as the owner of the State's public trust resource. Therefore, cases relating to takings based upon the State's regulatory authority are inapplicable.
The State is giving up its interest to formerly submerged lands over which it could exert a claim. In doing so, the State retains the right of public access over a small portion of those formerly submerged lands thereby satisfying its fiduciary role to the public. The Board's policy requiring the exchange of a 25-foot public use easement in exchange for a disclaimer constitutes the settlement of the State's claim to title to formerly submerged lands. The riparian owner gains unencumbered title to the State's formerly submerged lands. The State satisfies its fiduciary responsibility under the public trust by providing public access but surrenders its legally cognizable defenses to the riparian owner's claim to title. A riparian owner that enters into a disclaimer agreement with the State has entered into a legally binding contractual agreement regarding the coterminous boundary of the riparian land and public trust land. This agreement is not a regulatory function and therefore cannot constitute a taking of private property for a public purpose.
CONCLUSION
The Board has a fiduciary responsibility under the Public Trust Doctrine to maintain public access to the submerged lands underlying navigable waterways. Private interests may attempt to claim formerly submerged lands. However, due to the complexity of the legal and factual prerequisites to a claim of title, the Board is justified in requiring compensation in the form of a 25-foot public use right-of-way from the party claiming title. This compensation is a settlement of a disputed boundary and does not constitute the taking of private property for a public purpose. The Board is acting in a proprietary capacity in compromising a disputed claim to public trust resources.
DATED this 7th day of May, 2007.
LAWRENCE G. WASDEN
Attorney General
Analysis by:
C. NICHOLAS KREMA
Deputy Attorney General
Department of Lands