By abandoning traditional tests of navigability and defining new criteria for applicability of the navigation servitude, the Supreme Court has overlooked historical and precedential bases of the navigation servitude. The most important policy justifications for the doctrine are the need for federal dominance over waters with potential utility for recreation, defense, and commerce, and a desire to safeguard the public's right of access to commonly owned waterways. By considering factors such as the source of improvements upon a waterway and the possible inequity of the traditional noncompensation and notice theories, the Supreme Court has indicated a willingness to subrogate such public policies to the interests of private developers. In addition, the Kaiser Aetna Court's formulation of the navigation servitude is more difficult to apply than the traditional definition because it requires that future courts engage in a bifurcated mode of analysis. First, courts must ascertain whether navigability exists by utilizing one of several tests. Second, because the navigation servitude no longer attaches automatically upon a finding of navigability, judges must weigh the relative impact of numerous factors heretofore considered irrelevant. To account for this change in the law courts should apply a uniform rule of limited compensation once it is determined that the servitude attaches. This scheme would facilitate application of the revised doctrine and ensure a proper balance between traditional public interests and the needs of modern developers.
Theresa D. Taylor,
Determining the Parameters of the Navigation Servitude Doctrine,
34 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol34/iss2/7