Under its constitutional power over foreign and interstate commerce, the United States has authority over control and improvement of navigation. This authority has been interpreted as conferring on the United States the navigational servitude, a dominant servitude on land within the boundaries of navigable waters that entitles the United States to use the land for purposes related to navigation and commerce, regardless of ownership and without compensation. The Aquatic Resources Division of the Washington State Department of Natural Resources, manager of the state's aquatic public lands, recently completed a study of the nature and scope of state and federal rights in aquatic lands, including the federal navigational servitude. The purpose of the study was to develop a set of guidelines to apply at specific sites. The study disclosed a set of factors that appear to define the substantive and procedural legitimacy of actions taken under the federal navigational servitude and revealed how the factors coalesce into a six-part test to determine the validity of these government activities. This Comment grew out of the study and its findings. Part II of the Comment reviews the basis and nature of the navigational servitude. Part III examines the factors that define the scope of the servitude. Part IV describes how these factors coalesce into a six-part test to decide if government activities are protected under the navigational servitude. Part V concludes that while the navigational servitude is used in conjunction with the Takings Clause 5 there is a separate and discernible process that is due when the United States attempts to take the use of property located within navigable waters. The United States must demonstrate that it is taking only property originally located within navigable waters and absent a congressional waiver, the government must have a Commerce Clause purpose of furthering navigation. Furthermore, in addition to meeting the requirements of the six-part test, governmental actions taken under the navigational servitude must be reasonable and afford property owners fundamental due process rights.
Testing The Limits Of The Federal Navigational Servitude,
Ocean & Coastal L.J.
Available at: https://digitalcommons.mainelaw.maine.edu/oclj/vol2/iss2/8