David Anthony Newbold, et al. v. Kinder Morgan SNG Operator, L.L.C., et al.

This case raises a critical issue concerning the Fifth Circuit limiting the federal navigation servitude to the permanent channel of navigable waters, thereby ceding jurisdiction over the banks to the states. The servitude includes both the permanently flooded channel and its adjacent banks. The ordinary high-water mark defines the banks and establishes the upper limits of the servitude. Howard v. Ingersoll, 54 U.S. 381, 392 (1851). The banks are distinct from the permanently flooded channel, which is the ordinary low-water mark. Howard, 54 U.S. at 392; Handly v. Anthony, 18 U.S. 374, 380-81 (1820). Therefore, any attempts to merge these two lines will create an inconsistency in federal jurisdiction over navigable waters, and must be overruled. Here, the questions presented are:

1. Whether the Fifth Circuit erred in forming new tests that use the permanently flooded channel and the line where all vegetation ceases to exist to define the ordinary high-water mark, thereby merging the ordinary high- and low-water marks and ceding jurisdiction over the banks of navigable waters to the states;

2. Whether the correct terrestrial vegetation test to determine the ordinary high-water mark is “the line below which the waters have so visibly asserted their dominion that terrestrial plant life ceases to grow, and therefore, the value for agricultural purposes is destroyed.” Borough of Ford City v. United States, 345 F.2d 645, 648 (3d Cir. 1965).