just and Unjust Compensation: The Future of the Navigational Servitude in Condemnation Cases

In 1967, the U.S. Supreme Court, in United States v. Rands, expanded the navigational servitude doctrine governing the federal government’s power over land adjoining a navigable waterway by severely qualifying the government’s Fifth Amendment obligation to compensate the landowner. This Article addresses the issue in the following ways: Part I surveys Congress’ power to regulate navigable waters under the Commerce Clause. Part II summarizes the development of the navigational servitude doctrine and some of its inhibitory effects on waterfront development, especially under Rands. It explains the fundamental unfairness of the Rands principle and demonstrates why this constitutional rule represents an illegitimate extension of the original navigational servitude doctrine, which permits Congress to take private property within the waterway (i.e., below its high water mark) without incurring the obligation to pay just compensation. Part III turns to Section 111 of the Rivers and Harbors Act of 1970 and examines cases and statutory language to illustrate its operation. Finally, Part IV of this Article puts Section 111 in the context of instances in which Congress has acted to restore rights to property owners in other situations, and suggests revisions to Section 111 that would bring the rules governing the determination of just compensation in riparian condemnations into full conformity with those applicable to non-riparian condemnations.