Supreme Court hears lively debate on protecting wetlands, led in part by Justice Jackson.
By the time the Supreme Court was ready to take up the fate of Tennessee’s wetlands on June 3, 1925, it was beginning to be clear which side the justices had sided with as issues of water rights reemerged.
The question was whether the federal government had the power to control and regulate a state’s use of its own private water. It did, and Tennessee won by a 7-2 vote.
What Tennessee did not win was the question of how it should manage its wetlands. The state, as Jackson wrote, had been on the losing end of a case brought by the United States, which contended that the state had “abused rights reserved by [the] law, a right to the free use of its own unappropriated waters in the construction of canals, and other works for the public use” (Tilghman v. Grimes, 255 U.S. 38, 41 [16 S.Ct. 319]).
The case had been brought by the state of North Carolina, then under consideration by the U.S. Supreme Court for the case on review in 1925. The state, then embroiled in a long-running battle with the federal government over the management of its own wetlands, had argued that the federal government could not use “its legitimate power of taxation to interfere with the rights of citizens of the State of North Carolina over and above the mere appropriation to their use of waters that are not in the flow of streams.”
U.S. Supreme Court, 1925 U.S. Supreme Court, 1925 U.S. Supreme Court, 1925
As Jackson noted in his concurrence, the federal government had argued in Tilghman that
[t]he federal government had taken title to all the land within the boundaries of the state in question and the right to all water, which flows in the stream of navigable rivers for the purpose of constructing canals and other works for the public use through which the stream and the water may be, as a general rule, utilized in carrying on commercial