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Show GENERAL 67 grees recognized some private riparian rights in the shorelands of navigable waters, and some have even recognized private ownership of the beds of navigable waters (thus treating navigable waters essentially the same as if they were nonnavigable). While any State is free to surrender ordinary State-owned property interests to ad- jacent riparian owners (if that is the will of the State legislature and if such action is not found to be special legislation for the benefit of a selected few), there is a serious (question as to whether, or to what extent, State statutes and administrative actions can diminish the special trust that is to be held and adminisered for public use. It is likely that the public trust can only be limited or extinguished when such action serves a more important public pur- pose. And it seems that the legality of any such action is to be tested in State, rather than Federal, courts, since the nature and extent of the public trust is defined by State, rather than Federal, decisional law. On the other hand, some States have expanded the public trust by adopting a more inclusive test of navigability. This has been accom- plished by declaring waters to be navigable if they can float logs or canoes, or if they are valuable for recreational purposes, without regard to the utility of the water to support commercial waterborne commerce. The effect of this approach is to render navigable many waters which previously were nonnavigable, and thus to ex- tend the public trust. Here a different kind of legal problem arises, and the question is whether the State in the guise of public regula- tion has in fact taken private property interests without following procedures of due process and payment of just compensation. It is quite clear that a more expansive test of navigability cannot convert privately owned beds of previously nonnavigable waters into publicly owned beds of navigable waters. But the courts have sustained the more inclusive tests of navigability for the purpose of bringing more waters within the reach of the public trust and thus subjecting them to public use for fishing and other public recreation (even though the privately owned beds remain privately owned). In speaking of the different tests of navigability employed by the various States for purposes of the public trust, it should be noted that there are also some variations in the test of navigability as applied by the Federal courts. For example, it has been held that the Federal power to regulate navigation may extend to certain waters which are not navigable in interstate commerce in their natural and ordinary condition, but which may be made navigable by reasonable improvements and aids to navigation. Of course, the Federal test of navigability for purposes of State title considers the watercourse only in its natural condition, and does not consider artificial dredging or other improvements which may convert a non- navigable waterway into a navigable one. Therefore, it follows that for purposes of State title a watercourse may be held to be nonnavigable in its natural condition, and the State will not obtain title to the bed and shorelands by virtue of the equal footing doctrine, and there will be no public trust to be ad- ministered in favor of public use. The bed of such a water- course would be owned by riparian owners who own the adjacent up- 499-242-73- |