navigable waters of this state are inalienably 

 impressed '* " 



D. Limitations on Tideland Disposal 



The principal limitations on tideland destruc- 

 tion have been (1) State constitutional or statu- 

 tory limitations on their disposal and (2) protec- 

 tion of navigation under the Federal navigational 

 servitude (see next section). State constitutional 

 and statutory prolubitions on the sale of tidelands 

 generally have many exceptions and limitations, 

 the effect of which is shown in high percentage of 

 loss of marsh and tidelands in recent years. For 

 instance, California's Public Resources Code with- 

 holds tidelands from sale^' and its constitution 

 prohibits sale of tidelands within two miles of any 

 incorporated city, county, or town on the water- 

 front of any harbor or bay used for navigation,"^ 

 yet California has lost a larger percentage of fish 

 and wildUfe estuarine habitat than any other State 

 in the last 20 years." ^ 



Florida recently has clarified its previous law 

 authorizing sale of tidelands by the Trustees of the 

 Internal Improvement Fund if not "contrary to 

 the public interest," and now requires determina- 

 tion of the extent to which such sale: 



would interfere with the conservation of fish, 

 marine and wildlife or other natural resources, 

 including beaches and shores, and would result in 

 destruction of oyster beds, clam beds or marine 

 productivity, including, but not limited to, de- 

 struction or marine habitats, grass flats suitable as 

 nursery or feeding grounds for marine life, and 

 established marine soils suitable for producing 

 plant growth of a type useful as nursery or feeding 

 grounds for marine life, and if so, in what respect 



""Fla. Stats. §253.122 (1967). 



"' California Public Resources Code §7991. 



"^California Constitution, ait. 15, §3. 



"^See Estuarine Areas: Hearings Before the Sub- 

 committee on Fisheries and Wildlife Conservation of the 

 Committee on Merchant Marine and Fisheries, House of 

 Representatives, 90th Cong. 1st Sess., 1967, p. 30. Similar 

 results have occurred in the State of Washington, where 

 its constitution forbids sale of tidelands within one mile 

 of incorporated cities (art. XV, §1) and asserts State 

 ownership of tidelands (art. XVII, §1) which, absent 

 overall poUcy regarding use and disposal of tidelands, 

 resulted in disposal of much State-owned land. See 

 Hughes V. State, 67 Wash. 2d 799, 410 P. 2d 20, 23 

 (1966). We note, however, the recent reversal of that 

 trend by the State legislature by its establishment of a 

 State seashore conservation area and controls over the 

 sale of publicly owned lands. 



and to what extent and they shall consider any 

 other factors affecting the public interests.'^'* 



The statute contemplates use of biological, eco- 

 logical, and, if necessary, hydrographic studies to 

 aid the Trustees in their determination and, 

 furthermore, requires public hearings before sale 

 of tidelands. 



A grant of tidelands by the States does not 

 generally extinguish public rights in them until the 

 tidelands are so physically changed, according to 

 the grant terms, that those rights can no longer be 

 exercised, at which time the riparian owner's rights 

 become absolute."' 



However, some cases suggest that public rights 

 in tidelands may be extinguished before the 

 tidelands are changed physically, if lost "in pro- 

 moting the interests of the pubUc,""^ such as 

 adapting the land to the best use for navigation. 



// in so adapting the tidelands for this use it is 

 found necessary or advisable in any of the use to 

 cut off portions of it from access to navigable 

 water so that it becomes unavailable for naviga- 

 tion, the state has power to exclude such portions 

 from the public use and to that extent revoke the 

 original dedication. When this has been done in the 

 regular administration of the trust, the land thus 

 excluded from use for navigation may become 

 proprietory land not subject to the public use and 

 it may then be alienated irrevocably by the state 

 for private use to private individuals. . . . But 

 statutes purporting to authorize an abandonment 

 of such public use will be carefully scanned to 

 ascertain whether or not such was the legislative 

 intention and that intent must be clearly expressed 

 or necessarily implied. . . . " ' 



In still other cases, where the State has granted 

 title to tide and submerged lands subject to a 

 public trust for certain purposes, the State may 



""Fla. Code, §253.12(2) (Supp. 1968). 



"'See Atwood v. Hammond, 4 Cal. 2d 31, 48 P. 2d 20, 

 24 (1955); Allen v. Allen, 19 R.I. 114, 132 Atl. 166 

 ' (1895); City of Boston v. Richardson, 105 Mass. 351, 362 

 (1870);5rafe \ . Black River Phosphate Co., 32 Fla. 82, 13 

 So. 2d 640, 649 (1893); Holland v. F. I. Pearce Fin. & 

 Const Co., 157 Fla. 649, 27 So. 2d 76, 81-82 (1946). 



"*See Illinois Central R.R. v. Illinois, 146 U.S. 387, 

 453(1892). 



'^''People V. California Fish Co., 16 Cal. 576, 138 Pac. 

 79,87(1913). 



III-113 



333-093 O - 69 



