Footnotes

1056 Twin City Power, 350 U.S. 222, 225 (1956); accord United States v. Certain Parcels in Valdez, 666 F.2d 1236, 1238 (9th Cir. 1982).1057 United States v. Va. Elec. & Power Co., 365 U.S. 624, 628 (1961). Federal courts have used the terms high-water mark and ordinary high-watermark interchangeably in describing the boundary of the federal navigational servitude. Banks v. United States, 71 Fed. Cl. 501, 506 (2006) (noting both terms “refer to the same boundary” despite “any distinction in nomenclature” and citing cases).

1059 See Kaiser Aetna v. United States, 444 U.S. 164, 170-79 (1979); see also PPL Montana, LLC v. Montana 132 S. Ct. 1215, 1228-29 (2012); The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 454-57 (1851) (exploring inadequacy of English common-law concept of navigable waters, based on ebb and flow of tide, for American geography); Kaiser Aetna, 444 U.S. at 182-83 (Blackmun, J., dissenting) (discussing same); cf. Rapanos v.

1058 Cherokee Nation, 480 U.S. at 704; Rands, 389 U.S. at 123; United States v. Kan. City Life Ins. Co., 339 U.S. 799, 804 (1950); see Lucas, 505 U.S. at 1028-29; United States v. 30.54 Acres of Land in Greene Cty. (Filiaggi), 90 F.3d 790, 795 (3d Cir. 1996) (“Exercise of the servitude did nothing more than realize a limitation always inherent in the landowners’ title. It was not a taking.”); Pub. Util. Dist. No. 1 v. City of Seattle, 382 F.2d 666, 669 (9th Cir. 1967) (“[T]he navigational servitude, by its nature, does not destroy or exclude all property rights in the beds and banks of navigable streams. Such rights continue to exist but are held subject to the…

1049 Rands, 389 U.S. at 122-26; see United States v. Willow River Power Co., 324 U.S. 499, 509 (1945); see also United States v. Va. Elec. & Power Co., 365U.S. 624, 628-29 (1961); cf. Cherokee Nation, 480 U.S. at 704; Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979) (“fast lands”); Scranton, 179

1060 E.g., United States v. Appalachian Elec. Power Co., 311 U.S. 377, 406 & n.21 (1940); see Kaiser Aetna, 444 U.S. at 175.1061 The Daniel Ball, 77 U.S. 557, 563 (1870); see Arizona v. California, 283 U.S. 423, 452 n.2 (1931) (citing cases).

1052 Gilman, 70 U.S. at 724; accord Gibbons, 22 U.S. at 190 (“All America understands, and has uniformly understood, the word ‘commerce,’ to comprehend navigation. It was so understood, and must have been so understood, when the constitution was framed. The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government, and must have been contemplated in forming it.”); see United States v. Appalachian Elec. Power Co., 311 U.S. 377, 426-27 (1940).1053 Rands, 389 U.S. at 123; accord Cherokee Nation, 480 U.S. at 704.

1064 See, e.g., Owen v. United States, 851 F.2d 1404 (Fed. Cir. 1988); Banks, 71 Fed. Cl. 501; Alameda Gateway, Ltd. v. United States, 45 Fed. Cl. 757 (1999). The issue arises less frequently in other types of federal acquisitions. See, e.g., La. Jetty, 2015 WL 5794073; see also United States v. 30.54 Acres of Land in Greene Cty. (Filiaggi), 90 F.3d 790 (3d Cir. 1996).

1055 Gibson v. United States, 166 U.S. 269, 272 (1897); s ee Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1028-29 (1992) (“a pre-existing limitation upon the land owner’s title”); Rands, 389 U.S. at 123 (“a power to which the interests of riparian owners have always been subject”); Scranton v. Wheeler, 179U.S. 141, 163 (1900); see also Lambert Gravel Co. v. J.A. Jones Constr. Co., 835 F.2d 1105, 1112 (5th Cir. 1988); cf. Ronald C. Allen, Federal Evaluation of Riparian Property: Section 111 of the Rivers and Harbors Act of 1970, 24 me. l. reV. 175, 197-98 (1972) (“[The] servitude exemplifies the only clear cut instance when we as a nation have maintained a common property right exclusively for common…

1054 Gilman, 70 U.S. at 725 (“For [navigation] purposes, Congress possesses all the powers which existed in the States before the adoption of the national Constitution, and which have always existed in the Parliament in England.”); see United States v. Chandler-Dunbar Water Power Co., 229U.S. 53, 69 (1913) (“that the running water in a great navigable stream is capable of private ownership is inconceivable”).

1053 Rands, 389 U.S. at 123; accord Cherokee Nation, 480 U.S. at 704.1054 Gilman, 70 U.S. at 725 (“For [navigation] purposes, Congress possesses all the powers which existed in the States before the adoption of the national Constitution, and which have always existed in the Parliament in England.”); see United States v. Chandler-Dunbar Water Power Co., 229