United States v. Old Dominion Boat Club , 630 F.3d 1039 ( 2011 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 20, 2010 Decided January 11, 2011
No. 09-5363
UNITED STATES OF AMERICA,
APPELLANT
v.
OLD DOMINION BOAT CLUB,
APPELLEE
Consolidated with 09-5369
Appeals from the United States District Court
for the District of Columbia
(Nos. 1:73-cv-01903 & 1:73-cv-02211)
Kathryn E. Kovacs, Attorney, U.S. Department of Justice,
argued the cause for appellant. With her on the briefs was
Michael T. Gray, Attorney. David C. Shilton, Attorney,
entered an appearance.
Hugh Nugent argued the cause for appellee Old
Dominion Boat Club. With him on the brief were Paul J.
Kiernan and Harry P. Hart.
2
Before: TATEL, GARLAND, and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Through this action to quiet title to
certain “filled,” i.e., reclaimed, lands lying on the bed of the
Potomac River, the United States seeks to secure public
access to the Alexandria, Virginia, waterfront. Defendant, the
Old Dominion Boat Club, is an Alexandria private social club
the bulk of whose property lies on that filled land. The
district court held that despite the United States’ ownership of
the riverbed, Old Dominion had not trespassed nor was it
obligated to provide public access because, as a riparian
owner abutting District of Columbia waters, it had the right to
lay fill and build wharves. Since binding circuit precedent
recognizes just such a right, we affirm.
I.
In 1632, King Charles I granted a charter for Maryland to
Cecilius Calvert, Lord Baltimore. That grant included the bed
of the Potomac River, thus establishing the boundary line
between Maryland and Virginia at the Virginia shore. See
Morris v. United States, 174 U.S. 196, 223, 225 (1899). A
century and a half later, in 1791, Maryland, having succeeded
to title from Lord Baltimore following the Revolutionary
War, ceded a portion of its territory, including a piece of the
riverbed, to the United States for formation of a seat of
government pursuant to Article I, Section 8, Clause 17 of the
Constitution. Id. at 230. Although Virginia also ceded
territory on its side of the river, including Alexandria, the
1791 high-water mark became the District’s border and
marked the edge of the federally owned riverbed when the
United States retroceded Alexandria to Virginia in 1846. Act
of July 9, 1846, § 1, 9 Stat. 35, 35–36. In 1945, Congress
3
moved the boundary to the then-existing high-water mark but
clarified that “[n]othing in this Act shall be construed as
relinquishing any right, title, or interest of the United States to
the lands lying between the mean high-water mark as it
existed January 24, 1791, and the boundary line as [now
established].” See Act of Oct. 31, 1945, Pub. L. No. 79-208,
§§ 101, 103, 59 Stat. 552, 552.
Early in the twentieth century, Old Dominion, formed as
a private social club in 1880, purchased two adjacent parcels
on the Alexandria waterfront. Both parcels occupy reclaimed
lands filled after 1791. Old Dominion operates a private
clubhouse and marina on one of the parcels and a private
parking lot on the other. Both are fenced.
In 1973, the United States commenced this action against
thirty-four Alexandria riparian owners pursuant to two
statutes that authorize the Attorney General to bring quiet title
actions against parcels of dry or submerged land in the
District of Columbia. Act of April 27, 1912, Pub. L. No. 62-
138 § 1, 37 Stat. 93; Pub. L. No. 79-208 § 103. Claiming
ownership of all filled and submerged lands on the District of
Columbia side of the 1791 high-water mark, the government
argued that those riparian owners, including Old Dominion
and its predecessors in interest, had no right to fill the land at
issue. Praying for neither trespass damages nor ejection, the
government seeks only to establish public access to the
Alexandria waterfront, or, at the very least, a public view of
the waterfront. See Recording of Oral Arg. at 28:35–28:55
(describing that if “you’re walking down” toward the water
by Old Dominion’s parcel “you can’t see anything because on
one side there’s a privacy fence and on the other side there is
a parking lot with a chain link fence”). Most of the thirty-four
defendants settled, agreeing to some degree of public access.
4
Old Dominion and three other defendants, owning a total of
seven parcels, have continued to defend the lawsuit.
Old Dominion filed a motion for summary judgment,
which the district court granted. United States v. Robertson
Terminal Warehouse, Inc., 575 F. Supp. 2d 210, 213 (D.D.C.
2008). The district court began its analysis with a threshold
question: who owns the riverbed beneath Old Dominion’s
filled parcels? The court concluded that the United States
holds “fee title” to the bed of the Potomac River to the 1791
high-water mark, including Old Dominion’s parcels. The
United States’ “fee title” is “subject to a public trust for
navigation and fishery, and the United States cannot use or
dispose of the bed of the Potomac River in such a way that
would interfere with this trust.” Id. at 216. The district court
also held that Old Dominion had never gained title to the
filled riverbed via the doctrine of accretion, which “refers to
the increase of riparian land by the gradual deposit, by water,
of solid material . . . so as to cause that to become dry land
which was before covered by water.” Id. at 219 (explaining
that accretion “does not refer to the purposeful addition of
land to waterfront property through laying fill and
construction of wharves”).
The district court next considered whether Old Dominion
and its predecessors in interest, as riparian owners, had the
right to lay fill and build wharves. Reviewing applicable law,
the district court held that Old Dominion had such a right,
meaning that its fill and wharves were non-trespassory and
that it had exclusive possessory rights to both. Robertson
Terminal Warehouse, Inc., 575 F. Supp. 2d at 219–29.
According to the district court, this conclusion was driven by
three decisions of this court, United States v. Belt, 142 F.2d
761 (D.C. Cir. 1944), United States v. Martin, 177 F.2d 7335
(D.C. Cir. 1949), and Martin v. Standard Oil Co. of N.J., 198
F.2d 523 (D.C. Cir. 1952).
The United States now appeals, arguing, among other
things, that Belt, Martin, and Standard Oil are not binding.
Our review is de novo. Hendricks v. Geithner, 568 F.3d 1008,
1011–12 (D.C. Cir. 2009) (“We review a district court’s
granting of summary judgment de novo.”).
II.
Although neither party challenges the district court’s
choice of law—Maryland law of 1801—we begin by
explaining why that choice was correct. This case concerns
Old Dominion’s riparian rights, and the scope of such rights is
determined by the law of the sovereign having authority over
the body of navigable water in question. See Weems
Steamboat Co. of Baltimore v. People’s Steamboat Co., 214
U.S. 345, 355 (1909) (“The rights of a riparian owner upon a
navigable stream in this country are governed by the law of
the state in which the stream is situated.”); Shively v. Bowlby,
152 U.S. 1, 26, 36–37 (1894) (same). Here the sovereign is
the United States. See Morris, 174 U.S. at 230. When
Congress accepted the given territories, however, it declared
that Maryland law would continue to govern in the territories
ceded by Maryland, Act of July 16, 1790, Ch. 28, § 1, 1 Stat.
130, 130, and then later when it created a judicial system for
the District of Columbia in 1801, it provided that the laws of
Maryland “as they now exist[] shall be and continue in force
in that part of the said district, which was ceded by that state
to the United States,” Act of Feb. 27, 1801, Ch. 15, § 1, 2
Stat. 103, 103–05. Thus, despite the fact that the plaintiff is
the United States, the defendant is a private club in Virginia,
and the year is 2011, the district court correctly held that
“[r]iparian rights within the District of Columbia are governed
by Maryland law as it existed in 1801.” Robertson Terminal
6
Warehouse, Inc., 575 F. Supp. 2d at 221 (relying on Morris,
174 U.S. at 225–30).
As noted above, in concluding that Old Dominion had the
right to lay fill and build wharves, the district court relied on
Belt, Martin, and Standard Oil (throughout this opinion we
shall refer to these cases as the “Belt trio”). In each of those
cases, we faced actions similar to the one we consider today,
and in each we determined that Maryland recognized just
such a right. Specifically, in Belt we noted in dicta that the
rights of riparian owners include the right to “access . . . the
navigable part of the [r]iver, with the right to make a landing,
wharf, or pier, subject to such general rules and regulations as
the State may think proper for the protection of the public.”
142 F.2d at 767. In reaching this conclusion, we relied on the
Maryland Court of Appeals decision in Baltimore & Ohio
Railroad Co. v. Chase, in which that court described riparian
rights as follows:
[I]n addition to [the] right by reliction or accretion,
the riparian proprietor, whose land is bounded by a
navigable river, whether his title extends beyond the
dry land or not, has the right of access to the
navigable part of the river from the front of his lot,
and the right to make a landing, wharf or pier for his
own use, or for the use of the public, subject to such
general rules and regulations as the Legislature may
think proper to prescribe for the protection of the
rights of the public, whatever those rights may be.
43 Md. 23, 35 (1875). Citing Belt, we expressly held in
Martin that “[a]n owner of riparian land . . . has a qualified
right to make fills and build wharves in the river.” 177 F.2d
at 734 (internal quotation marks omitted). We reached the
7
same conclusion in Standard Oil, relying on both Belt and
Chase. 198 F.2d at 526.
Because these holdings definitively dictate the scope of
Old Dominion’s rights, this appeal turns entirely on whether
they are in fact binding. Although a panel of this court is
generally bound by our earlier decisions, Davis v. U.S. Dep’t
of Justice, 610 F.3d 750, 753 (D.C. Cir. 2010), the
government argues that we are not so bound here because the
Belt trio is inconsistent with (1) subsequent Maryland law and
(2) older circuit precedent.
Beginning with the government’s first argument, we
agree that because the Maryland Court of Appeals serves as
the ultimate arbiter of Maryland law, we must depart from our
precedent if subsequent decisions of that court make clear that
the interpretation of Maryland law set forth in our prior
opinions is wrong. See, e.g., Jaworowski v. Ciasulli, 490 F.3d
331, 332 n.1 (3d Cir. 2007) (“[W]hen we are applying state
law we are, of course, free to reexamine the validity of our
state law interpretation based on subsequent decisions of the
state supreme court.” (internal quotation marks omitted));
Woodling v. Garrett Corp., 813 F.2d 543, 557 (2d Cir. 1987)
(same). The government argues that this is just such a case
because, according to it, decisions of the Maryland Court of
Appeals subsequent to the Belt trio make clear that Chase, on
which all three decisions rest, was wrong when it stated that
Marylanders had common law rights to lay fill and build
wharves. Instead, the government argues, such rights derive
only from statute, and no applicable statute existed in 1801.
Although we agree that no applicable statute existed in 1801,
we disagree that post-Belt Maryland decisions undermine
Chase. Not only has the Maryland Court of Appeals
continued to rely on Chase for exactly the principle quoted
above, see White v. Pines Cmty. Improvement Ass’n, 939 A.2d
8
165, 166–67 (Md. 2008) (citing Chase approvingly,
characterizing it as a description of “the common law of
riparian rights”), but nothing in the three subsequent
Maryland cases on which the government relies definitively
establishes that no right to fill and wharf existed at common
law as of 1801.
In the first of the cases the government cites, People’s
Counsel v. Maryland Marine Manufacturing Co., the
Maryland Court of Appeals did indeed say that it “ha[d] held
that the right to build a wharf or other structure into the water
can be derived only from a grant or permission of the State,
because virtually all land under water belongs to the State.”
560 A.2d 32, 37 (Md. 1989). The other two cases, Worton
Creek Marina and Harbor Island Marina, say essentially the
same thing. See Worton Creek Marina, LLC v. Claggett, 850
A.2d 1169, 1174 (Md. 2004) (“At common law, ‘the
fundamental riparian right—on which all others depend[ed]
. . . —[was] access to water.’ . . . [S]tatutory rights include the
right to make improvements into the water in front of riparian
property.” (quoting People’s Counsel, 560 A.2d at 37));
Harbor Island Marina, Inc. v. Bd. of Cnty. Comm’rs, 407
A.2d 738, 745 (Md. 1979) (“[T]here have sporadically been
legislative enactments recognizing, expanding, and redefining
the rights and privileges [of] riparian owners . . . . Of
particular importance to this case was the inclusion as a
riparian right of the privilege to make improvements into the
water by the riparian owner from his property.”). In our view,
however, these cases do not support the government’s
argument that Maryland riparian owners had no right at
common law to lay fill and build wharves. Rather, the cases
indicate the possibility that Maryland courts once recognized
a right to “wharf out” incident to the paramount riparian right
of access to the navigable waters, but that whatever common
law rights may have existed were preempted by a series of
9
Maryland statutes enacted in the eighteenth and nineteenth
centuries.
In People’s Counsel, the Maryland Court of Appeals, far
from rejecting Chase as aberrant, cast it as a decision that
recognized the right to fill and build as a means of access, and
the court cited Maryland cases both confirming and
contradicting the existence of such a right. See People’s
Counsel, 560 A.2d at 37 n.5. In Worton Creek, the Court of
Appeals again emphasized the importance of access and then
discussed statutory improvement rights solely as they related
to the building of waterfowl hunting blinds—a riparian use
unrelated to access to navigable waters. Worton Creek, 850
A.2d at 1174–75. Although nothing in either decision
explicitly makes this distinction between the right to wharf as
an independent right—as discussed by the parties in this
case—and the narrower right incident to access, the latter
concept is well-established. See 1 Henry Philip Farnham, The
Law of Waters and Water Rights 279 (1904) (“[T]he right of
access . . . includes the right to erect wharves to reach the
navigable portion of the stream.”); see also United States v.
River Rouge Improvement Co., 269 U.S. 411, 418 (1926)
(explaining that, as a matter of general common law, a
riparian owner had a right of access and could, where not
otherwise forbidden, “construct landings, wharves or piers for
this purpose”). This distinction between access and non-
access-related improvements may not reconcile the entire
body of Maryland case law on this issue, but, at the very least,
it calls into question the government’s assertion that the Belt
trio, to the extent it relies on Chase, is inconsistent with
subsequent Maryland cases.
To support its argument that Chase was incorrectly
decided, the government also relies on the series of Maryland
statutes that gradually extended the right to lay fill and wharf
10
out to additional riparian lands. According to the
government, Harbor Island, Worton Creek, and People’s
Counsel confirm that these statutes created rights that had not
existed at common law and that Maryland riparian owners
have no rights beyond those granted by statute. But we read
these cases as demonstrating only that the Maryland
legislature has preempted any common law that may have
existed and therefore that today Maryland riparian owners
have no rights beyond those granted them by statute. Critical
to the issue before us, these cases say nothing about when that
preemption may have occurred. Moreover, by characterizing
Maryland statutes as “confer[ring] a right to construct
improvements for purposes beyond mere access to the
navigable portion of the water,” People’s Counsel suggests
that the statutory rights represented an expansion—not an
initial creation—of improvement rights. 560 A.2d at 38
(emphasis added). Thus, nothing in Harbor Island, Worton
Creek, or People’s Counsel contradicts the propositions
underlying our Belt trio holdings—that some right to fill and
build existed at common law, that these statutes expanded
rather than created the right to fill and build wharves, and that
as of 1801 they had yet to preempt the older common law
rights.
Having rejected the government’s claim that subsequent
Maryland case law renders the Belt trio non-binding, we turn
to the government’s alternative claim that the trio conflicts
with prior circuit precedent. Again, we agree with the
principle underlying the government’s argument—when a
conflict exists within our own precedent, we are bound by the
earlier decision. See Indep. Cmty. Bankers of Am. v. Bd. of
Governors of the Fed. Reserve Sys., 195 F.3d 28, 34 (D.C.
Cir. 1999) (“[W]hen faced with an intra-circuit conflict, a
panel should follow earlier, settled precedent over a
subsequent deviation therefrom.” (internal quotation marks
11
omitted)). Of course, courts must be careful when invoking
this principle, lest they too readily discard a later precedent
that distinguished—or is distinguishable from—an earlier
decision. In any event, in this case we find no such
inconsistency.
The government cites three pre-Belt trio cases—two from
this court and one from the Supreme Court. In the first,
Marine Railway & Coal Co. v. United States, 265 F. 437(D.C. Cir. 1920), the United States sought ejection of a
riparian owner in Virginia whose property abutted the
federally owned portion of the Potomac and who had taken
possession of land reclaimed during a federal dredging
project. Id. at 438–39. Ruling for the government, we held
that the United States retains title to submerged lands covered
by artificial fill and that the rights of riparian owners “must
yield to commercial necessity.” Id. at 443. In other words, a
riparian owner has no right to procedural due process or just
compensation if its riparian rights—whatever those may be—
have been cut off by federal efforts to preserve or improve the
navigability of a waterway held by the federal government in
the public trust. Id. Contrary to the government’s argument,
Marine Railway, which says nothing about the scope of
riparian rights where the federal government is acting for any
purpose aside from promoting the navigability of waterways,
is consistent with our later cases. As we explained in Martin,
[a]n owner of riparian land . . . has a qualified right
to make fills and build wharves in the river. But
exercise of this qualified right does not affect the
power of the United States with regard to navigation.
‘Structures in the bed of a navigable stream . . . may
be injured or destroyed without compensation by a
federal improvement of navigable capacity.’
12
Martin, 177 F.2d at 734 (quoting United States v. Chi.,
Milwaukee, St. Paul & Pac. R.R. Co., 312 U.S. 592, 599
(1941)) (internal citation omitted) (ellipses in original). True,
Martin suggests that a riparian owner can, contrary to Marine
Railway, obtain title to reclaimed lands, but title is not at issue
in this appeal. Accordingly, Marine Railway, which
addresses the power of the United States to interfere with
riparian rights to protect navigation, is consistent with the Belt
trio, which makes clear that riparian rights are qualified by
Congress’s “paramount power over the navigable waters of
the United States in the regulation of commerce and
navigation.” Belt, 142 F.2d at 767.
We are similarly unpersuaded by the government’s
discussion of the other two pre-Belt trio federal cases: Shively
v. Bowlby, 152 U.S. 1 (1894), and United States ex rel.
Greathouse v. Hurley, 60 Wash. L. Rep. 162 (D.C. 1932),
aff’d 63 F.2d 137 (D.C. Cir.), aff’d sub nom. United States ex
rel. Greathouse v. Dern, 289 U.S. 352 (1933). Although
Shively characterizes the right to wharf out and lay fill in
Maryland as a statutory rather than a common law right, the
case, decided in 1894, merely offers a contemporary
assessment of riparian rights and thus says nothing about the
state of Maryland law in 1801. Shively, 152 U.S. at 23–24.
The final decision, Greathouse, deals with a riparian owner’s
request that the court compel the Secretary of War to grant a
permit to build where no harbor line had been established.
Greathouse, 63 F.2d at 138. In the Rivers and Harbors Act of
1899, Congress had authorized the Secretary of War to draw
such lines and had prohibited building without a permit either
beyond those lines or where no such lines had been drawn.
Act of Mar. 3, 1899 ch. 425, §§ 10–11, 30 Stat. 1121, 1151
(codified at 33 U.S.C. §§ 401–404); 33 U.S.C. § 405(extending coverage of the Act to the Potomac River).
Greathouse does not support the government’s argument. To
13
begin with, only the Supreme Court of the District of
Columbia—a trial level court—actually reached the question
of the scope of riparian rights under Maryland law of 1801.
Moreover, although that court made some general statements
about the nonexistence of common law rights to build, its
holding dealt not with whether the riparian owner could build
at all—the issue in this case—but with whether the owner had
a vested right to build that could not, prior to building, be
taken by Congressional action. Greathouse, 60 Wash. L. Rep.
at 166. As we explained, supra at 11–12, the rights in
question in this case are qualified—i.e., they are subject to
congressional regulation. Indeed, the traditional common law
rule was that where such rights existed, they vested only when
exercised. See, e.g., Scranton v. Wheeler, 179 U.S. 141, 158
(1900) (explaining that the qualified right of access to
navigable waters, as manifested in the building of wharves, is
a constitutionally protected property right that vests only
when those wharves are built). Because Old Dominion has
already exercised its rights, the trial court’s opinion in
Greathouse is inapplicable. To be sure, the Supreme Court,
considering the case on writ of certiorari, referred to the
existence of the common law right in Maryland as “doubtful,”
but it did so in the course of noting that mandamus is
unavailable where the right in question is unclear.
Greathouse, 289 U.S. at 357–58. The existence of the
Maryland common law right was one of a long list of
uncertain propositions that would have to have been true to
justify mandamus in that case. Id.In conclusion, because the Belt trio is consistent with
both subsequent Maryland case law and older federal case
law, we are bound by its interpretation of Maryland law.
14
III.
Alternatively, the government urges us to certify to the
Maryland Court of Appeals the question of what rights Old
Dominion has. See Md. Code Ann., Cts. & Jud. Proc. § 12-
603 (authorizing the Maryland Court of Appeals to accept
certified questions from federal courts). “In deciding whether
to certify a case we look to whether local law is genuinely
uncertain with respect to a dispositive question . . . . If,
however, there is a discernible path for the court to follow,
then we do not stop short of deciding the question.” Dial A
Car, Inc. v. Transp., Inc., 132 F.3d 743, 746 (D.C. Cir. 1998)
(internal citations and quotation marks omitted); see also 17A
Charles Alan Wright et al., Federal Practice and Procedure §
4248, at 502–07 (3d ed. 2007) (listing considerations relevant
to the determination of whether to certify, including the
frequency with which the question will come up, the practical
limitations of the certification process, and the extent to which
considerations of comity are relevant). Certification is thus
inappropriate where, as here, we have examined state law and
have found a “discernible path” that is consistent with our
precedent.
We are unwilling to certify this case for two additional
reasons. First, because in the 1800s Maryland adopted a
comprehensive statutory framework dealing with the right to
wharf out, the state common-law rule at issue here has
absolutely no applicability for any riparian land outside of the
District of Columbia (and probably not even any applicability
beyond the seven parcels at issue in this case, see Recording
of Oral Arg. at 11:04–11:15, 13:34–14:10, 29:09–30:04). We
cannot imagine why the Maryland Court of Appeals would
want to spend its limited time on an issue of no consequence
to the state of Maryland. Second, this case has been in
litigation since 1973, and Maryland law is hardly uncertain
enough to justify further delay.
15
For all these reasons we decline, as counsel for Old
Dominion put it at oral argument, to “refer to Maryland courts
a question of whether panels of this court in the mid-twentieth
century misinterpreted the dictum of a Maryland nineteenth
century case applying a mid-eighteenth century Maryland
statute that modified sixteenth century common law.”
Recording of Oral Arg. at 20:41–21:08. We affirm the
district court’s grant of summary judgment for Old Dominion.
So ordered.