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Show THE DAILY RECORD Office of the Attorney General Calvin L; Ramptun Governor, State of Utah State Capitol Building Hon. Salt Lake City, Utah of interstate commerce does not relieve commercial carriers from the obligation of acquiring appropriate easements and rights-of-wfor the conduct of their operations. The State of Utah owns the bed of the Great Salt Lake, and on August 16, 1956, granted to Southern Pacific Company an easement for the purpose of constructing and operating the causeway across the Lake, subject to the express condition that the Company "compensate surface owners or lessees for all damages done during construction of the railroad and during its subsequent operations." While the State is a "surface owner," it is unnecessary to focus on the stated condition, because the easement granted necessarily was subject to the state's dominant servitude over navigable waters. ay 84114 Dear Governor Rampton: in response to your inquiry concerning the legal options available to the State of Utah to require modifications in the Southern Pacific causeway in order to permit the mineral concentration in the brines of the Great Salt Lake to equalize in the North and South arms of the Lake. My office has researched this matter, and a summary of conclusions reached is set forth below. This State of Utah letter is The Problem Southern Pacific Company, pursuant to an easement obtained from the State of Utah in 1956, constructed an earth fill causeway across the northern part of the Great Salt Lake to replace the trestle that earlier had been used to support the railroad tracks. The causeway is solid fill across the Lake, except for two rather small culverts. As a result, the Lake has been divided into two separate parts or arms, restricting and in many instances preventing travel by water craft between the two arms of the Lake. Another the result, and one of substantial present concern, is that more arm become have northern minerals in the brines of the concentrated while those in the aouthern arm have been diluted. This arises in part from the fact that the tributary inflow of fresh water to the southern arm is much greater than the northern, and the causeway serves as a barrier to prevent an equalization of minerals in the brines. As a consequence, the southern arm has become less productive for the extraction of salts and minerals fiom the brines, and The the present task is to assess the legal basis for state action restore the mineral balance. which might in some measure I Historical Basis. of State Navigation servitude In England, the crown and Parliament held proprietary and governmental rights in all navigable waters in a trust capacity for the purpose of protecting public navigation and fishing (R. Hall, Essay on the Rights of the Crown and the Privileges (2d ed. of the Subject in the sea Shores of the Realm, 106-0- 8 152 U.S.l (1894)). 1875); Shlvley v. Bowlby, Great Salt Lake is a navigable body of water and the State, in both a proprietary and governmental capacity, has jurisdiction over the waters and bed of the Lake, and over all activities conducted thereon. This jurisdiction arises as an aspect of a public trust whereby the State is obligated to protect the public .interest in navigable waters. The If the State elects, as an exercise of its jurisdiction over navigable waters, to require Southern Pacific to modify its causeway, it is unlikely that anyone could successfully question the State's power to so act. The only question would be whether Southern Pacific would be compensated for the costs involved, and it appears that there would be no constitutional or other "right" to compensation, but that the State as a matter of legislative policy could elect to pay compensation for all or part of such costs. Discussion Scope of State Regulatory Power letter does not purport to exhaust the range of State regulatory powers over the Great Salt Lake. There are a number of regulatory powers which are in no way dependent upon the concept of navigability. For example, the State can control water pollution on the Lake, and may enjoin any activities which alter the chemical quality of water (Title 73, Chapter. 14, Utah Code Annotated); and can take such action as is necessary to promote water conservation on the Lake Utah Code Annotated); and can require (Sections conservation measures to prevent waste or loss of minerals Utah Code Annotated) ; and can do any(Sections This 65-8-4- ,5, 65-1-15- ,46, thing reasonable or necessary in aid of public health, safety or welfare, including taking private property by eminent domain But the powers mentioned above are subject to some uncertainties and other difficulties so far as the causeway is Thus, water pollution controls ordinarily are imposed only upon those who discharge contaminants into waters concerned. or permit contaminants from their operations (e.g,, feedyards) to drain into waters; water conservation controls ordinarily are imposed only upon those who use water inefficiently or wastefully; likewise, measures to conserve minerals and maximize total ultimate recovery ordinarily are imposed only upon those extracting, processing, or wasting such minerals; and property taken by eminent domain under the police power requires payment of just compensation as a matter of constitutional due process. not fall within traditional 1 2, para. 1; Martin Ill, Gibbons v. Ogden, 22 U.S. it The Southern Pacific Easement The commerce Southern Pacific company is engaged in interstate and, as such, is subject to regulation by the Federal Interstate commerce Commission. However, Federal regulation thirteen v. Waddell, 1 (1824)). 16 Pet. 367 (1842); As a matter of constitutional equal footing with the original states, all states subsequently admitted to the Union enjoy the same proprietary rights and governmental power over 3 their navigable waters (Pollard v. Hagan, How. 212, 229 (1845) Speaking with reference to the protection of fishery resources, the United States Supreme Court has said that the power of the states under the public trust over navigable waters is based on both ownership and regulatory jurisdiction; . This power results from the ownership of the soil rbed , from the legislative jurisdiction of the state over it, and from its the State's duty to preserve those public uses for which the soil is held. (Smith v. Maryland, 18 How. 71, 75 (1855)). The Rule of No Compensation States to regulate navigation, and the accompanying public trust duty, subjects all such waters and shorelands to a servitude which may be exercised without regard to the damage that might be inflicted in private property The power of the i interests. This rule has been justified on the ground that the navigation servitude existed before any private rights attached in, on, or adjacent to navigable waters, and that private rights from their inception have been conditional upon and subject to exercise of the navigation servitude. With respect to states created from Federal territory, the Federal Government held the navigable waters in trust for future states when created (Shively v. Bowlby. 152 U.S. 1 (1894)), and private rights are thus subject to the state's navigation servitude. Stated in simplest pre-stateh- ood terms, the rule of no compensation is based on the concept that private rights associated with navigable waters are and always have been subject to the state's superior power to regulate those waters and activities thereon; and that when regulatory measures promulgated by the state damage or destroy private interests, there is no invasion of private rights; and no compensation is required. The same holds true with respect to the Federal navigation servitude on those waters which are navigable in interstate or foreign commerce. While the Great Salt Lake is navigable intrastate only, and is not subject to the Federal servitude, the parallel Federal cases are instructive. Perhaps the best summary is set forth in United States v. Rands, 389 U.S. 121 (1967), where the Court observed: This power to regulate navigation confers upon the United States a "dominant servitude, " citation omitted which extends to the entire stream and the stream bed below ordinary high water mark. The proper exercise of this power is not an invasion of any private property rights in the stream or lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to concepts of water pollution, water conservation, or mineral conservation, and eminent domain procedures would contemplate paying compensation for damages sustained by Southern Pacific. While the powers mentioned above are not to be discounted either as to their importance or their applicability to the problem at hand, will be seen that the State's power over navigable waters is subject. to fewer uncertainties and may be exercised without payment of compensation. American Revolution, the certain superior regulatory rietary rights, but did grant were which over waters those power navigable in interstate or commerce. (U.S. Const., art. I; 8, para. 3, and art. foreign Quite obviously, operation and maintenance of the cause- way do result of the colonies succeeded to all of the rights of both the Crown and Parliament in and to navigable waters, their beds, and adjacent shores; and when these colonies formed the Federal Union, and became the original states, they did not surrender any prop- ) Conclusion a As which the interests of always been subject. lira riparian owners have otate navigation servitude rests on basis, although the states have not been uniform as a inecidiT matter of policy, the rule of no compensation should be applied. The determination as to when should be applied is within the discretion of the the rule legislature and. if the. policy adopted is one of denying compensation the courts will abide by that policy. One of the most troublesome of the rule is when is applied when the regulation aspects it is only incidentally in aid of navigation and primarily for some other purpose. California when, |