United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 20, 2010 Decided January 11, 2011

No. 09-5363

UNITED STATES OF AMERICA,

APPELLANT

v.

OLD DOMINION BOAT CLUB,

APPELLEE

Consolidated with 09-5369

Appeals from the United States District Court

for the District of Columbia

(Nos. 1:73-cv-01903 & 1:73-cv-02211)

Kathryn E. Kovacs, Attorney, U.S. Department of Justice, 

argued the cause for appellant. With her on the briefs was 

Michael T. Gray, Attorney. David C. Shilton, Attorney, 

entered an appearance.

Hugh Nugent argued the cause for appellee Old 

Dominion Boat Club. With him on the brief were Paul J. 

Kiernan and Harry P. Hart.
2

Before: TATEL, GARLAND, and KAVANAUGH, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Through this action to quiet title to 

certain “filled,” i.e., reclaimed, lands lying on the bed of the 

Potomac River, the United States seeks to secure public 

access to the Alexandria, Virginia, waterfront. Defendant, the 

Old Dominion Boat Club, is an Alexandria private social club 

the bulk of whose property lies on that filled land. The 

district court held that despite the United States’ ownership of 

the riverbed, Old Dominion had not trespassed nor was it 

obligated to provide public access because, as a riparian 

owner abutting District of Columbia waters, it had the right to 

lay fill and build wharves. Since binding circuit precedent 

recognizes just such a right, we affirm.

I.

In 1632, King Charles I granted a charter for Maryland to 

Cecilius Calvert, Lord Baltimore. That grant included the bed 

of the Potomac River, thus establishing the boundary line 

between Maryland and Virginia at the Virginia shore. See 

Morris v. United States, 174 U.S. 196, 223, 225 (1899). A 

century and a half later, in 1791, Maryland, having succeeded 

to title from Lord Baltimore following the Revolutionary 

War, ceded a portion of its territory, including a piece of the 

riverbed, to the United States for formation of a seat of 

government pursuant to Article I, Section 8, Clause 17 of the 

Constitution. Id. at 230. Although Virginia also ceded 

territory on its side of the river, including Alexandria, the 

1791 high-water mark became the District’s border and 

marked the edge of the federally owned riverbed when the 

United States retroceded Alexandria to Virginia in 1846. Act 

of July 9, 1846, § 1, 9 Stat. 35, 35–36. In 1945, Congress 
3

moved the boundary to the then-existing high-water mark but 

clarified that “[n]othing in this Act shall be construed as 

relinquishing any right, title, or interest of the United States to 

the lands lying between the mean high-water mark as it 

existed January 24, 1791, and the boundary line as [now 

established].” See Act of Oct. 31, 1945, Pub. L. No. 79-208,

§§ 101, 103, 59 Stat. 552, 552.

Early in the twentieth century, Old Dominion, formed as 

a private social club in 1880, purchased two adjacent parcels

on the Alexandria waterfront. Both parcels occupy reclaimed 

lands filled after 1791. Old Dominion operates a private 

clubhouse and marina on one of the parcels and a private 

parking lot on the other. Both are fenced.

In 1973, the United States commenced this action against 

thirty-four Alexandria riparian owners pursuant to two 

statutes that authorize the Attorney General to bring quiet title 

actions against parcels of dry or submerged land in the 

District of Columbia. Act of April 27, 1912, Pub. L. No. 62-

138 § 1, 37 Stat. 93; Pub. L. No. 79-208 § 103. Claiming

ownership of all filled and submerged lands on the District of

Columbia side of the 1791 high-water mark, the government

argued that those riparian owners, including Old Dominion 

and its predecessors in interest, had no right to fill the land at 

issue. Praying for neither trespass damages nor ejection, the 

government seeks only to establish public access to the 

Alexandria waterfront, or, at the very least, a public view of 

the waterfront. See Recording of Oral Arg. at 28:35–28:55 

(describing that if “you’re walking down” toward the water

by Old Dominion’s parcel “you can’t see anything because on 

one side there’s a privacy fence and on the other side there is 

a parking lot with a chain link fence”). Most of the thirty-four

defendants settled, agreeing to some degree of public access. 
4

Old Dominion and three other defendants, owning a total of 

seven parcels, have continued to defend the lawsuit.

 

Old Dominion filed a motion for summary judgment, 

which the district court granted. United States v. Robertson 

Terminal Warehouse, Inc., 575 F. Supp. 2d 210, 213 (D.D.C. 

2008). The district court began its analysis with a threshold 

question: who owns the riverbed beneath Old Dominion’s 

filled parcels? The court concluded that the United States 

holds “fee title” to the bed of the Potomac River to the 1791

high-water mark, including Old Dominion’s parcels. The 

United States’ “fee title” is “subject to a public trust for 

navigation and fishery, and the United States cannot use or 

dispose of the bed of the Potomac River in such a way that 

would interfere with this trust.” Id. at 216. The district court 

also held that Old Dominion had never gained title to the 

filled riverbed via the doctrine of accretion, which “refers to 

the increase of riparian land by the gradual deposit, by water, 

of solid material . . . so as to cause that to become dry land 

which was before covered by water.” Id. at 219 (explaining 

that accretion “does not refer to the purposeful addition of 

land to waterfront property through laying fill and 

construction of wharves”). 

The district court next considered whether Old Dominion

and its predecessors in interest, as riparian owners, had the 

right to lay fill and build wharves. Reviewing applicable law, 

the district court held that Old Dominion had such a right, 

meaning that its fill and wharves were non-trespassory and 

that it had exclusive possessory rights to both. Robertson 

Terminal Warehouse, Inc., 575 F. Supp. 2d at 219–29. 

According to the district court, this conclusion was driven by

three decisions of this court, United States v. Belt, 142 F.2d 

761 (D.C. Cir. 1944), United States v. Martin, 177 F.2d 733 
5

(D.C. Cir. 1949), and Martin v. Standard Oil Co. of N.J., 198 

F.2d 523 (D.C. Cir. 1952). 

The United States now appeals, arguing, among other 

things, that Belt, Martin, and Standard Oil are not binding. 

Our review is de novo. Hendricks v. Geithner, 568 F.3d 1008, 

1011–12 (D.C. Cir. 2009) (“We review a district court’s 

granting of summary judgment de novo.”).

II.

Although neither party challenges the district court’s 

choice of law—Maryland law of 1801—we begin by 

explaining why that choice was correct. This case concerns

Old Dominion’s riparian rights, and the scope of such rights is

determined by the law of the sovereign having authority over 

the body of navigable water in question. See Weems 

Steamboat Co. of Baltimore v. People’s Steamboat Co., 214 

U.S. 345, 355 (1909) (“The rights of a riparian owner upon a 

navigable stream in this country are governed by the law of 

the state in which the stream is situated.”); Shively v. Bowlby, 

152 U.S. 1, 26, 36–37 (1894) (same). Here the sovereign is 

the United States. See Morris, 174 U.S. at 230. When 

Congress accepted the given territories, however, it declared 

that Maryland law would continue to govern in the territories 

ceded by Maryland, Act of July 16, 1790, Ch. 28, § 1, 1 Stat. 

130, 130, and then later when it created a judicial system for 

the District of Columbia in 1801, it provided that the laws of 

Maryland “as they now exist[] shall be and continue in force 

in that part of the said district, which was ceded by that state 

to the United States,” Act of Feb. 27, 1801, Ch. 15, § 1, 2 

Stat. 103, 103–05. Thus, despite the fact that the plaintiff is 

the United States, the defendant is a private club in Virginia,

and the year is 2011, the district court correctly held that 

“[r]iparian rights within the District of Columbia are governed 

by Maryland law as it existed in 1801.” Robertson Terminal 
6

Warehouse, Inc., 575 F. Supp. 2d at 221 (relying on Morris, 

174 U.S. at 225–30).

As noted above, in concluding that Old Dominion had the 

right to lay fill and build wharves, the district court relied on 

Belt, Martin, and Standard Oil (throughout this opinion we 

shall refer to these cases as the “Belt trio”). In each of those 

cases, we faced actions similar to the one we consider today, 

and in each we determined that Maryland recognized just 

such a right. Specifically, in Belt we noted in dicta that the 

rights of riparian owners include the right to “access . . . the 

navigable part of the [r]iver, with the right to make a landing, 

wharf, or pier, subject to such general rules and regulations as 

the State may think proper for the protection of the public.” 

142 F.2d at 767. In reaching this conclusion, we relied on the 

Maryland Court of Appeals decision in Baltimore & Ohio 

Railroad Co. v. Chase, in which that court described riparian 

rights as follows: 

[I]n addition to [the] right by reliction or accretion, 

the riparian proprietor, whose land is bounded by a 

navigable river, whether his title extends beyond the 

dry land or not, has the right of access to the 

navigable part of the river from the front of his lot, 

and the right to make a landing, wharf or pier for his 

own use, or for the use of the public, subject to such 

general rules and regulations as the Legislature may 

think proper to prescribe for the protection of the 

rights of the public, whatever those rights may be.

43 Md. 23, 35 (1875). Citing Belt, we expressly held in 

Martin that “[a]n owner of riparian land . . . has a qualified 

right to make fills and build wharves in the river.” 177 F.2d 

at 734 (internal quotation marks omitted). We reached the 
7

same conclusion in Standard Oil, relying on both Belt and 

Chase. 198 F.2d at 526. 

Because these holdings definitively dictate the scope of 

Old Dominion’s rights, this appeal turns entirely on whether 

they are in fact binding. Although a panel of this court is 

generally bound by our earlier decisions, Davis v. U.S. Dep’t

of Justice, 610 F.3d 750, 753 (D.C. Cir. 2010), the 

government argues that we are not so bound here because the 

Belt trio is inconsistent with (1) subsequent Maryland law and 

(2) older circuit precedent.

Beginning with the government’s first argument, we 

agree that because the Maryland Court of Appeals serves as

the ultimate arbiter of Maryland law, we must depart from our 

precedent if subsequent decisions of that court make clear that 

the interpretation of Maryland law set forth in our prior 

opinions is wrong. See, e.g., Jaworowski v. Ciasulli, 490 F.3d 

331, 332 n.1 (3d Cir. 2007) (“[W]hen we are applying state 

law we are, of course, free to reexamine the validity of our 

state law interpretation based on subsequent decisions of the 

state supreme court.” (internal quotation marks omitted));

Woodling v. Garrett Corp., 813 F.2d 543, 557 (2d Cir. 1987)

(same). The government argues that this is just such a case

because, according to it, decisions of the Maryland Court of 

Appeals subsequent to the Belt trio make clear that Chase, on 

which all three decisions rest, was wrong when it stated that 

Marylanders had common law rights to lay fill and build 

wharves. Instead, the government argues, such rights derive 

only from statute, and no applicable statute existed in 1801. 

Although we agree that no applicable statute existed in 1801, 

we disagree that post-Belt Maryland decisions undermine 

Chase. Not only has the Maryland Court of Appeals 

continued to rely on Chase for exactly the principle quoted 

above, see White v. Pines Cmty. Improvement Ass’n, 939 A.2d 
8

165, 166–67 (Md. 2008) (citing Chase approvingly, 

characterizing it as a description of “the common law of 

riparian rights”), but nothing in the three subsequent 

Maryland cases on which the government relies definitively 

establishes that no right to fill and wharf existed at common 

law as of 1801. 

In the first of the cases the government cites, People’s 

Counsel v. Maryland Marine Manufacturing Co., the 

Maryland Court of Appeals did indeed say that it “ha[d] held 

that the right to build a wharf or other structure into the water 

can be derived only from a grant or permission of the State, 

because virtually all land under water belongs to the State.” 

560 A.2d 32, 37 (Md. 1989). The other two cases, Worton 

Creek Marina and Harbor Island Marina, say essentially the 

same thing. See Worton Creek Marina, LLC v. Claggett, 850 

A.2d 1169, 1174 (Md. 2004) (“At common law, ‘the 

fundamental riparian right—on which all others depend[ed] 

. . . —[was] access to water.’ . . . [S]tatutory rights include the 

right to make improvements into the water in front of riparian 

property.” (quoting People’s Counsel, 560 A.2d at 37)); 

Harbor Island Marina, Inc. v. Bd. of Cnty. Comm’rs, 407 

A.2d 738, 745 (Md. 1979) (“[T]here have sporadically been

legislative enactments recognizing, expanding, and redefining 

the rights and privileges [of] riparian owners . . . . Of 

particular importance to this case was the inclusion as a 

riparian right of the privilege to make improvements into the 

water by the riparian owner from his property.”). In our view, 

however, these cases do not support the government’s 

argument that Maryland riparian owners had no right at 

common law to lay fill and build wharves. Rather, the cases

indicate the possibility that Maryland courts once recognized 

a right to “wharf out” incident to the paramount riparian right 

of access to the navigable waters, but that whatever common 

law rights may have existed were preempted by a series of 
9

Maryland statutes enacted in the eighteenth and nineteenth 

centuries. 

In People’s Counsel, the Maryland Court of Appeals, far 

from rejecting Chase as aberrant, cast it as a decision that 

recognized the right to fill and build as a means of access, and 

the court cited Maryland cases both confirming and 

contradicting the existence of such a right. See People’s 

Counsel, 560 A.2d at 37 n.5. In Worton Creek, the Court of 

Appeals again emphasized the importance of access and then 

discussed statutory improvement rights solely as they related 

to the building of waterfowl hunting blinds—a riparian use 

unrelated to access to navigable waters. Worton Creek, 850 

A.2d at 1174–75. Although nothing in either decision

explicitly makes this distinction between the right to wharf as 

an independent right—as discussed by the parties in this 

case—and the narrower right incident to access, the latter 

concept is well-established. See 1 Henry Philip Farnham, The 

Law of Waters and Water Rights 279 (1904) (“[T]he right of 

access . . . includes the right to erect wharves to reach the 

navigable portion of the stream.”); see also United States v. 

River Rouge Improvement Co., 269 U.S. 411, 418 (1926) 

(explaining that, as a matter of general common law, a 

riparian owner had a right of access and could, where not 

otherwise forbidden, “construct landings, wharves or piers for 

this purpose”). This distinction between access and nonaccess-related improvements may not reconcile the entire 

body of Maryland case law on this issue, but, at the very least, 

it calls into question the government’s assertion that the Belt

trio, to the extent it relies on Chase, is inconsistent with 

subsequent Maryland cases.

To support its argument that Chase was incorrectly 

decided, the government also relies on the series of Maryland 

statutes that gradually extended the right to lay fill and wharf 
10

out to additional riparian lands. According to the 

government, Harbor Island, Worton Creek, and People’s 

Counsel confirm that these statutes created rights that had not 

existed at common law and that Maryland riparian owners 

have no rights beyond those granted by statute. But we read 

these cases as demonstrating only that the Maryland 

legislature has preempted any common law that may have 

existed and therefore that today Maryland riparian owners 

have no rights beyond those granted them by statute. Critical 

to the issue before us, these cases say nothing about when that 

preemption may have occurred. Moreover, by characterizing

Maryland statutes as “confer[ring] a right to construct 

improvements for purposes beyond mere access to the 

navigable portion of the water,” People’s Counsel suggests

that the statutory rights represented an expansion—not an 

initial creation—of improvement rights. 560 A.2d at 38 

(emphasis added). Thus, nothing in Harbor Island, Worton 

Creek, or People’s Counsel contradicts the propositions

underlying our Belt trio holdings—that some right to fill and 

build existed at common law, that these statutes expanded 

rather than created the right to fill and build wharves, and that 

as of 1801 they had yet to preempt the older common law 

rights. 

Having rejected the government’s claim that subsequent 

Maryland case law renders the Belt trio non-binding, we turn 

to the government’s alternative claim that the trio conflicts

with prior circuit precedent. Again, we agree with the 

principle underlying the government’s argument—when a 

conflict exists within our own precedent, we are bound by the 

earlier decision. See Indep. Cmty. Bankers of Am. v. Bd. of 

Governors of the Fed. Reserve Sys., 195 F.3d 28, 34 (D.C. 

Cir. 1999) (“[W]hen faced with an intra-circuit conflict, a 

panel should follow earlier, settled precedent over a

subsequent deviation therefrom.” (internal quotation marks 
11

omitted)). Of course, courts must be careful when invoking 

this principle, lest they too readily discard a later precedent 

that distinguished—or is distinguishable from—an earlier 

decision. In any event, in this case we find no such 

inconsistency. 

The government cites three pre-Belt trio cases—two from 

this court and one from the Supreme Court. In the first,

Marine Railway & Coal Co. v. United States, 265 F. 437 

(D.C. Cir. 1920), the United States sought ejection of a 

riparian owner in Virginia whose property abutted the 

federally owned portion of the Potomac and who had taken 

possession of land reclaimed during a federal dredging 

project. Id. at 438–39. Ruling for the government, we held

that the United States retains title to submerged lands covered 

by artificial fill and that the rights of riparian owners “must 

yield to commercial necessity.” Id. at 443. In other words, a

riparian owner has no right to procedural due process or just 

compensation if its riparian rights—whatever those may be—

have been cut off by federal efforts to preserve or improve the 

navigability of a waterway held by the federal government in 

the public trust. Id. Contrary to the government’s argument, 

Marine Railway, which says nothing about the scope of 

riparian rights where the federal government is acting for any 

purpose aside from promoting the navigability of waterways, 

is consistent with our later cases. As we explained in Martin, 

[a]n owner of riparian land . . . has a qualified right 

to make fills and build wharves in the river. But 

exercise of this qualified right does not affect the 

power of the United States with regard to navigation. 

‘Structures in the bed of a navigable stream . . . may 

be injured or destroyed without compensation by a 

federal improvement of navigable capacity.’
12

Martin, 177 F.2d at 734 (quoting United States v. Chi., 

Milwaukee, St. Paul & Pac. R.R. Co., 312 U.S. 592, 599 

(1941)) (internal citation omitted) (ellipses in original). True,

Martin suggests that a riparian owner can, contrary to Marine 

Railway, obtain title to reclaimed lands, but title is not at issue 

in this appeal. Accordingly, Marine Railway, which 

addresses the power of the United States to interfere with 

riparian rights to protect navigation, is consistent with the Belt 

trio, which makes clear that riparian rights are qualified by 

Congress’s “paramount power over the navigable waters of 

the United States in the regulation of commerce and 

navigation.” Belt, 142 F.2d at 767.

We are similarly unpersuaded by the government’s 

discussion of the other two pre-Belt trio federal cases: Shively 

v. Bowlby, 152 U.S. 1 (1894), and United States ex rel. 

Greathouse v. Hurley, 60 Wash. L. Rep. 162 (D.C. 1932), 

aff’d 63 F.2d 137 (D.C. Cir.), aff’d sub nom. United States ex 

rel. Greathouse v. Dern, 289 U.S. 352 (1933). Although 

Shively characterizes the right to wharf out and lay fill in 

Maryland as a statutory rather than a common law right, the 

case, decided in 1894, merely offers a contemporary 

assessment of riparian rights and thus says nothing about the 

state of Maryland law in 1801. Shively, 152 U.S. at 23–24.

The final decision, Greathouse, deals with a riparian owner’s 

request that the court compel the Secretary of War to grant a 

permit to build where no harbor line had been established. 

Greathouse, 63 F.2d at 138. In the Rivers and Harbors Act of 

1899, Congress had authorized the Secretary of War to draw 

such lines and had prohibited building without a permit either 

beyond those lines or where no such lines had been drawn. 

Act of Mar. 3, 1899 ch. 425, §§ 10–11, 30 Stat. 1121, 1151

(codified at 33 U.S.C. §§ 401–404); 33 U.S.C. § 405 

(extending coverage of the Act to the Potomac River). 

Greathouse does not support the government’s argument. To 
13

begin with, only the Supreme Court of the District of 

Columbia—a trial level court—actually reached the question 

of the scope of riparian rights under Maryland law of 1801. 

Moreover, although that court made some general statements 

about the nonexistence of common law rights to build, its 

holding dealt not with whether the riparian owner could build 

at all—the issue in this case—but with whether the owner had 

a vested right to build that could not, prior to building, be 

taken by Congressional action. Greathouse, 60 Wash. L. Rep. 

at 166. As we explained, supra at 11–12, the rights in 

question in this case are qualified—i.e., they are subject to 

congressional regulation. Indeed, the traditional common law 

rule was that where such rights existed, they vested only when

exercised. See, e.g., Scranton v. Wheeler, 179 U.S. 141, 158 

(1900) (explaining that the qualified right of access to 

navigable waters, as manifested in the building of wharves, is 

a constitutionally protected property right that vests only 

when those wharves are built). Because Old Dominion has 

already exercised its rights, the trial court’s opinion in 

Greathouse is inapplicable. To be sure, the Supreme Court, 

considering the case on writ of certiorari, referred to the 

existence of the common law right in Maryland as “doubtful,” 

but it did so in the course of noting that mandamus is 

unavailable where the right in question is unclear. 

Greathouse, 289 U.S. at 357–58. The existence of the 

Maryland common law right was one of a long list of 

uncertain propositions that would have to have been true to 

justify mandamus in that case. Id.

In conclusion, because the Belt trio is consistent with 

both subsequent Maryland case law and older federal case 

law, we are bound by its interpretation of Maryland law. 
14

III.

Alternatively, the government urges us to certify to the 

Maryland Court of Appeals the question of what rights Old 

Dominion has. See Md. Code Ann., Cts. & Jud. Proc. § 12-

603 (authorizing the Maryland Court of Appeals to accept 

certified questions from federal courts). “In deciding whether 

to certify a case we look to whether local law is genuinely 

uncertain with respect to a dispositive question . . . . If, 

however, there is a discernible path for the court to follow, 

then we do not stop short of deciding the question.” Dial A 

Car, Inc. v. Transp., Inc., 132 F.3d 743, 746 (D.C. Cir. 1998) 

(internal citations and quotation marks omitted); see also 17A 

Charles Alan Wright et al., Federal Practice and Procedure § 

4248, at 502–07 (3d ed. 2007) (listing considerations relevant 

to the determination of whether to certify, including the 

frequency with which the question will come up, the practical 

limitations of the certification process, and the extent to which 

considerations of comity are relevant). Certification is thus

inappropriate where, as here, we have examined state law and 

have found a “discernible path” that is consistent with our 

precedent. 

We are unwilling to certify this case for two additional 

reasons. First, because in the 1800s Maryland adopted a

comprehensive statutory framework dealing with the right to 

wharf out, the state common-law rule at issue here has 

absolutely no applicability for any riparian land outside of the 

District of Columbia (and probably not even any applicability 

beyond the seven parcels at issue in this case, see Recording 

of Oral Arg. at 11:04–11:15, 13:34–14:10, 29:09–30:04). We 

cannot imagine why the Maryland Court of Appeals would 

want to spend its limited time on an issue of no consequence 

to the state of Maryland. Second, this case has been in 

litigation since 1973, and Maryland law is hardly uncertain

enough to justify further delay. 
15

For all these reasons we decline, as counsel for Old 

Dominion put it at oral argument, to “refer to Maryland courts 

a question of whether panels of this court in the mid-twentieth 

century misinterpreted the dictum of a Maryland nineteenth 

century case applying a mid-eighteenth century Maryland 

statute that modified sixteenth century common law.” 

Recording of Oral Arg. at 20:41–21:08. We affirm the 

district court’s grant of summary judgment for Old Dominion. 

So ordered.