10.3 Public Trust Tidelands & Mean High Water on the Mississippi Coast

The public trust in tidal lands

At statehood on December 10, 1817, Mississippi received, under the equal-footing doctrine, title to the beds of its tidal waters, held in trust for navigation, fishing, commerce, and related public uses. The Mississippi Supreme Court held in Cinque Bambini Partnership v. State, 491 So. 2d 508 (Miss. 1986) that the trust reaches all lands naturally subject to the ebb and flow of the tide, not only navigable waters. The U.S. Supreme Court affirmed in Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988), a 5–3 decision by Justice White.

The facts in Phillips. The land was slightly more than 42 acres under the north branch of Bayou LaCroix and 11 small drainage streams in southwestern Mississippi. The streams were several miles north of the Gulf and not navigable in fact, but they were tidal because they were tributary to the Jourdan River. The private parties held record title traced to pre-statehood grants and had paid taxes for generations. The State issued oil and gas leases, and the owners sued to quiet title.

The holdings.

1. The States took title at statehood to all lands beneath waters influenced by the ebb and flow of the tide, navigable or not.
2. Each State may define the limits of its trust lands and the rights of private owners under state law.
3. Record title and tax payments did not defeat the State's title under Mississippi law. Constitutional § 104 separately provides that statutes of limitation do not run against the State.

Lands lying under artificially created waters (two artificial lakes) were left out of the State's claim, which is why the land finally at issue was just over 42 acres.

The Public Trust Tidelands Act (1989)

The Legislature found that doubt over coastal titles was damaging the coast's economy and enacted the Tidelands Act (Laws 1989, ch. 495, approved March 31, 1989; §§ 29-15-1 et seq.).

Definitions (§ 29-15-1)

Trust and littoral rights (§ 29-15-5). Tidelands and submerged lands are held by the State in trust for all the people. Littoral and riparian owners keep their common-law and statutory rights under the Coastal Wetlands Protection Law. Since 2012, residential owners do not need a tidelands lease to exercise those littoral and riparian rights.

The tidelands map (§ 29-15-7).

• The Secretary of State prepared a Preliminary Map of Public Trust Tidelands. Where the shoreline is undeveloped, the map shows the boundary at the current mean high water line. In developed or encroached areas, it shows the determinable mean high water line nearest the effective date of the Coastal Wetlands Protection Act (enacted 1973).
• The boundary is ambulatory. Natural inland expansion of the tide adds land to the trust. Natural accretion (gradual, imperceptible accumulation) and reliction (permanent withdrawal of the water) reduce the trust and increase the contiguous upland owner's property.
• After public notice and comment (60 days), the certified map was recorded in the chancery clerks' land records in Hancock, Harrison, and Jackson counties. The Secretary of State issues certificates to consenting owners whose property lies outside the trust.

Money and mapping. Lease rentals go to the Public Trust Tidelands Fund, administered by the Secretary of State, after administrative costs. The money pays first to replace lost ad valorem taxes, then for Department of Marine Resources tidelands programs (§ 29-15-9). A lessee of trust land pays any tax on the leasehold (§ 29-15-11). Public conservation and access projects are exempt from use fees (§ 29-15-13). The Commission on Marine Resources runs the continuing boundary-mapping program (§ 29-15-17).

Constitutional backdrop. Mississippi Constitution § 81 bars the Legislature from authorizing the permanent obstruction of navigable waters, and § 95 bars donating state lands to private corporations or individuals.

Locating mean high water

Mean high water is an elevation, not a debris line. The workflow:

1. Tidal datum. Obtain the MHW value for a NOAA tide station near the site, or establish a local tidal datum, on the current National Tidal Datum Epoch (1983–2001). Nineteen years captures the 18.6-year lunar nodal cycle.
2. Relate to a geodetic datum. Use the station's published relationship between MHW and NAVD 88 to get the MHW elevation on the survey's vertical datum.
3. Carry elevations to the site by differential leveling or suitable GNSS methods. For a Class A survey, Rule 7.5 requires elevations for tide-controlled boundaries to be accurate to ±0.05 ft, based on NGVD or NAVD (Section 3.4).
4. Trace the contour (staking method) or model it from topography (topographic method), then plot the line and its date. The line moves over time.
5. Check against the biology. In Gulf Coast marshes, smooth cordgrass (Spartina alterniflora) typically occupies the regularly flooded low marsh, and black needlerush (Juncus roemerianus) the higher marsh. Such indicators help confirm the computed line, but the elevation controls.

Common errors: using the wrack line of storm or spring-tide debris, using a FEMA flood elevation, or using mean higher high water (MHHW) or mean lower low water (MLLW) in place of MHW.

Littoral rights and permits

Upland owners bordering tidal water have littoral rights, including reasonable access to the water. Structures and fill in coastal wetlands still require permits under the Coastal Wetlands Protection Law (§ 49-27-1 et seq.), administered by the Department of Marine Resources. Commercial uses of trust lands require a tidelands lease from the Secretary of State.

Exam traps

• "The bayou is too small to navigate, so it's private." Not if it is tidal (Phillips).
• "Paying taxes for 80 years gives title." Not against the State's trust title (Phillips; Miss. Const. § 104).
• "MHW is the visible high-tide line." It is a datum elevation defined over a nineteen-year epoch (§ 29-15-1).
• "The tidelands boundary never moves." The statute recognizes an ambulatory boundary that moves with natural accretion, reliction, and tidal expansion (§ 29-15-7).