Dredging up the Butler Act
The Butler Act was passed in 1921 and essentially reenacted the earlier Riparian Act of 1856. Like the Riparian Act, the purpose of the Butler Act was to create and stimulate commerce and to encourage upland riparian owners to improve their waterfront property.1 In order to accomplish this purpose, waterfront owners were permitted under the act to obtain title to submerged lands adjacent to their uplands by bulkheading, filling, or permanently improving the submerged lands.2 Although it was repealed by implication in 1951,3 and expressly in 1957,4 the Butler Act continues to affect the title to submerged lands that were so improved prior to its repeal.
In the recent decision, City of West Palm Beach v. Board of Trustees of the Internal Improvement Trust Fund, 714 So. 2d 1060 (Fla. 4th DCA 1998), the Fourth District Court of Appeal, on motion for rehearing, withdrew its earlier opinion5 adopting the rationale utilized by the Third District Court of Appeal in State Board of Trustees of the Internal Improvement Trust Fund v. Key West Conch Harbor, Inc., 683 So. 2d 144 (Fla. 3d DCA 1996), substituting in its place a conflicting opinion holding that dredging is not a “permanent improvement” under the Butler Act.6
Reversing not only itself but also a slow trend of judicial expansion of the activities considered to be permanent improvements under the Butler Act, the Fourth District Court of Appeal rejected the Third District’s case-by-case approach to determining whether certain types of dredging operated to convey title under the act. Although soon the Florida Supreme Court should render the ultimate pronouncement on the issue,7 the court, along with the First and Third districts, has, at least tacitly, already decided it.
In Holland v. Fort Pierce Financing & Construction Co., 27 So. 2d 76 (Fla. 1946), the court addressed the applicability of the Butler Act to extensive improvements the Fort Pierce Financing and Construction Company had made to its riparian uplands and the abutting submerged lands. Among the “improvements” recognized by the court and included within the grant of title under the Butler Act was the dredging of channels, boat slips, turning basins, and a deep water channel across the Indian River.8 the court noted that each of these activities was necessary to make the improvement usable as a whole.9
The Train Begins to Roll
Later, in Jacksonville Shipyards, Inc. v. Department of Natural Resources, 466 So. 2d 389 (Fla. 1st DCA 1985), the First District Court of Appeal used the term “improvements” to describe, inter alia, dredging of open waters between piers and docks.10 Although it did not explicitly rule that dredging constituted a permanent improvement under the act, the court clearly recognized the dredged area as an improvement, and included the dredged area within the submerged lands disclaimed to Jacksonville Shipyards, Inc., under the Butler Act.11
Finally, the Third District Court of Appeal expressly addressed the issue of whether dredging constituted a permanent improvement under the Butler Act in Key West Conch Harbor.12 the first court to address the question specifically, the Third District, found that the dredging at issue constituted a permanent improvement, but declined to rule as such across the board, deferring to a case-by-case approach.13 To assist in making this determination, the court required that the surrounding land and other improvements qualifying under the Butler Act be considered in addition to the dredged land.14
In holding that the dredging at issue was a permanent improvement under the Butler Act, the court recognized that the dredged area was adjacent to other improvements and, without the dredging, the improvements otherwise qualifying under the act would be useless.15 the court distinguished dredging around a pier for access to the pier from dredging offshore simply for the purpose of providing fill. The court found that the latter would not transfer title under the Butler Act.16
The specific issue of whether dredging constitutes a permanent improvement under the Butler Act was not addressed again until taken up by the Fourth District Court of Appeal in City of West Palm Beach v. Board of Trustees of the Internal Improvement Trust Fund.17 In City of West Palm Beach, the court initially reversed the trial court’s decision to disclaim to the city only the submerged lands directly beneath four piers in the Palm Harbor Marina and its holding that the dredged area between and around the piers did not constitute a “permanent improvement” under the Butler Act.18 Relying on the Third District’s opinion in Key West as “particularly instructive,” the court found that the piers in the Palm Harbor Marina would be useless without the incidental dredging.19 the court noted that, similar to the dredging in Key West, the dredging was not done for the sole purpose of filling other land.20 the court went on to adopt the Third District’s case-by-case approach, including consideration of the surrounding lands and other qualifying improvements made.21
Fourth District
Hits the Brakes
Almost one year later, the Fourth District Court granted the Board of Trustees’ motion for rehearing and substituted a conflicting opinion for its prior one, this time affirming the trial court’s decision to disclaim to the City of West Palm Beach only the submerged lands immediately beneath four piers in the Palm Harbor Marina.22 On rehearing, the court began its analysis by noting that the case was not about “the City’s ability to continue to dredge in the area surrounding the piers, so that the marina will continue to be viable.”23
This statement indicates that the court assumed that the city’s lack of fee simple title to the submerged lands would have no significant bearing on whether it would later be permitted to dredge the area surrounding the piers. Apparently, this assumption was sufficient to permit the court to disregard the Third District’s approach of considering the utility of the improvement absent incidental dredging. In practice, however, dredging of submerged lands is frowned upon by regulatory and proprietary agencies, and the city’s ability to maintain the viability of the marina without having title to the submerged lands is far from absolute. Concerned over what the city might do with title to the submerged lands, the court ignored what the city likely would not be able to do without title.24
The court then proceeded to detail the history of the Butler Act and its purpose, concluding with a strict construction of the act that served to convey title only with the building of wharves, the filling of land with the erection of permanent buildings upon the fill, or, at the very least, the construction of permanent structures on the submerged lands.25 Although the court’s strict construction argument, an argument espoused by the Board of Trustees for some time, has some merit, the court neglected to address the effect on its construction of the Butler Act’s disjunctive phrase “bulkheaded or filled in or permanently improved”26 which formed the basis of prior contrary opinions. The court’s summary dismissal of this established precedent strains the credibility of its opinion.
In the opinion, the Fourth District first states that no Supreme Court case holds that dredging in conjunction with the erection of piers constitutes a permanent improvement under the Butler Act.27 However, no Supreme Court case specifically holds that it does not. Moreover, while not specifically holding that dredging confers title under the act, the Supreme Court in Holland recognized that the dredging of channels and turning basins were improvements that made the filled lands usable and resulted in beneficial commerce, “one of the objectives contemplated by the Legislature in the enactment of the [Act].”28 This finding lends support to the Third District’s case-by-case approach, looking to the effect of the dredging on the utility of other improvements.
The Fourth District Court then distinguished Jacksonville Shipyards, stating that the First District “never honed in” on whether the dredged land involved was subject to the act.29 To the contrary, the First District Court twice recognized in its opinion that the area subject to disclaimer included dredging.30
The Fourth District followed its dismissal of Jacksonville Shipyards by criticizing the Key West decision, labeling the Third District Court’s view as “too myopic” for failing to look beyond Jacksonville Shipyards for precedent.31 the Fourth District, however, disregarded pertinent language within the act, choosing not to recognize the implicit holding in Jacksonville Shipyards and failing to note that dredged areas were also labeled “improvements” in Holland. The Fourth District Court then returned to its earlier argument to distinguish Key West and bolster its strict construction of the act, reasoning that incidental dredging to keep the Palm Harbor Marina functional “would not be precluded because the State, and not the landowner, holds title to the submerged land.”32 the court further noted that the record before it reflected that when the Butler Act was in effect, the state freely granted upland owners permission to dredge, but reserved the rights of the public to the open waters.33
The court, perhaps unwittingly, has struck upon the true issue facing upland owners of riparian improvements. The state no longer freely grants leases of sovereign submerged lands or permission to dredge these lands. If permission is granted, it comes with a significant price, and leases of submerged lands are for a term and not automatically renewable. A modern day owner of improvements such as those disclaimed in Holland, Jacksonville Shipyards, Key West, and City of West Palm Beach could easily find the improvements unusable, or usable only at a high premium, due to the present policies of the state’s proprietary and regulatory agencies. Whether this change in how submerged lands are valued will be reflected in the Supreme Court’s resolution of the conflict soon should be known.
Conclusion
The Third District Court’s case-by-case approach, also implicitly applied in Holland and Jacksonville Shipyards, seems to be the best balance between the true purpose of the Butler Act—to encourage and benefit commerce and navigation—and the changed perspective of the state’s balance between preservation and progress. Ironically, those individuals who risked their dollars to further the state’s old policies may be the same souls now forced to pay for its new ones.
q
1 Jacksonville Shipyards, Inc. v. Department of Natural Resources, 466 So. 2d 389, 391 (Fla. 1st D.C.A. 1985).
2 1921 Fla. Laws ch. 8537, §1.
3 57 Fla. Op. Att’y Gen. 215 (1957); but see Department of Natural Resources v. Industrial Plastics Technology, Inc. , 603 So. 2d 1303 (Fla. 5th D.C.A. 1992).
4 1957 Fla. Laws ch. 362.
5 City of West Palm Beach v. Board of Trustees of the Internal Improvement Trust Fund , 1997 WL 529744 (Fla. 4th D.C.A. 1997).
6 1921 Fla. Laws ch. 8537 §1 (the “Butler Act”) provides, in pertinent part: “The State of Florida. . . subject to any inalienable trust under which the State holds said lands, divests itself of all right, title and interest to all lands covered by water lying in front of any tract of land owned by the United States or by any person, natural or artificial, or by any municipality, county or governmental corporation under the laws of Florida, lying upon any navigable stream or bay of the sea or harbor, as far as to the edge of the channel, and hereby vests the full title to the same, subject to said trust in and to the riparian proprietors, giving them the full right and privilege to build wharves into streams or waters of the bay or harbor as far as may be necessary to affect the purposes described, and to fill up from the shore, bank or beach as far as may be desired, not obstructing the channel, but leaving full space for the requirements of commerce, and upon lands so filled in to erect warehouses, dwellings or other buildings and also the right to prevent encroachments of any other person upon all such submerged land in the direction of their lines continued to the channel by bill in chancery or at law, and to have and maintain action of trespass in any court of competent jurisdiction in the State, for any interference with such property, also confirming to the riparian proprietors all improvements which may have heretofore been made upon submerged lands.
“Provided, that the grant herein made shall apply to and affect only those submerged lands which have been, or may be hereafter, actually bulk-headed or filled in or permanently improved continuously from high water mark in the direction of the channel, or as near in the direction of the channel as practicable to equitably distribute the submerged lands, and shall in no wise affect such submerged lands until actually filled in or permanently improved.”
7 The Fourth District certified conflict with Key West pursuant to Fla. R. App. P. 9.030(a)(2)(A)(vi).
8 Holland , 27 So. 2d at 82. The improvements noted by the court included dredging channels and turning basins, erecting piers, installing bulkheads, filling in land, and constructing docks, packinghouses and precooling plants.
9 Holland , 27 So. 2d at 82.
10 Jacksonville Shipyards , 466 So. 2d at 390.
11 Id . The improvements listed by the court consisted of, inter alia: a marine railway dry dock; two docks and a pier; two floating dry docks, two gantry cranes; 446.2 feet of bulkheading; dredging of the open waters between the piers and docks; three separate piers with warehouses and railroad tracks; and a concrete drive. Jacksonville Shipyards , 466 So. 2d at 390 n.3.
12 Key West Conch Harbor, Inc., 683 So. 2d 144.
13 Id .
14 Id . at 146.
15 Id. at 145.
16 Id.
17 City of West Palm Beach , 714 So. 2d 1060.
18 City of West Palm Beach v. Board of Trustees of the Internal Improvement Trust Fund , 1997 WL 529744 (Fla. 4th D.C.A. 1997).
19 Id . at 2.
20 Id .
21 Id . at 3.
22 City of West Palm Beach , 714 So. 2d 1060.
23 Id . at 1061.
24 The court noted an exchange between the city’s attorney and the trial court judge in concluding that transfer of fee simple title to dredged, submerged lands under the Butler Act could conceivably give rise to filling of the submerged lands for more intensive development. See id. at 1061 and note 2. Again, however, the court overlooked the formidable, if not impossible, task of obtaining a permit and lease from the state for such activities.
25 Id . at 1063.
26 (Emphasis supplied). The court also chose not to include in its quotation of §1 of the Butler Act the following phrase: “also confirming to the riparian proprietors all improvements which may have heretofore been made upon submerged lands.”
27 City of West Palm Beach, 714 So. 2d at 1065.
28 Holland, 27 So. 2d at 83.
29 City of West Palm Beach, 714 So. 2d at 1065.
30 Jacksonville Shipyards, 466 So. 2d at 390, 393.
31 City of West Palm Beach, 714 So. 2d at 1065.
32 Id . at 1066.
33 Id . at n.5.
Edwin A. Steinmeyer is an attorney with Lewis, Longman & Walker, P.A., in Tallahassee. Formerly a senior attorney with the Department of Environmental Protection, he received his B.S. in business administration and J.D. from the University of Florida. Mr. Steinmeyer practices primarily in the areas of environmental, administrative, and land use law.
This column is submitted on behalf of the Real Property, Probate and Trust Law Section, Bruce M. Stone, chair, and Brian C. Sparks and William P. Sklar, editors.
