Foreshore land

Notes by: Clifford Enoc1

I do not know what I may appear to the world, but to myself I seem to have been only
like a boy playing on the seashore, and diverting myself in now and then finding a
smoother pebble or a prettier shell than ordinary, whilst the great ocean of truth lay all
undiscovered before me.  Isaac Newton

Historical background
Republic Act No. 1899 entitled "An Act to Authorize the Reclamation of Foreshore
Lands by Chartered Cities and Municipalities" was passed on June 22, 1957. Section 1 of
the law provides:

“ "Section 1. Authority is hereby granted to all municipalities and chartered cities to undertake
and carry out at their own expense the reclamation by dredging, filling, or other means, of any
foreshore lands bordering them, and to establish, provide, construct, maintain and repair proper
and adequate docking and harbor facilities as such municipalities and chartered cities may
determine in consultation with the Secretary of Finance and the Secretary of Public Works and
Communications."

R.A. No. 1899 authorizes municipalities and chartered cities to undertake and carry out
at their own expense the reclamation by dredging, filling or other means, of any foreshore
lands bordering their respective territories. The law itself specifies what lands may be
reclaimed and these are foreshore lands. It did not, however, define the term foreshore
lands.2

Four years before R.A. No. 1899 was passed, the term "foreshore lands" was defined
by the Court of Appeals in the case of Hacut v. Director of Lands3 which involved a parcel
of land along Basilan Island. The appellate court, quoting from Bouvier's Law Dictionary,
defined foreshore lands as:

“ "that part of the land immediately in front of the shore; the part which is between high and low
water marks, and alternately covered with water and left dry by the flux and reflux of the tides. It is
indicated by a middle line between the highest and lowest tides."4
 "Foreshore lands" has a settled meaning. It was the dictionary meaning of the term
that the Court of Appeals adopted in Hacut. The Supreme Court upheld this dictionary
meaning in 1965 in the cases of Ponce v.Gomez 5 and Ponce v. City of Cebu.6 In these
cases, the City of Cebu entered into a reclamation contract with the Cebu Development
Corporation to reclaim foreshore land along the coast of Cebu City pursuant to R.A. 1899.
This Court declared that the authority to reclaim granted to chartered cities and
municipalities under R.A. 1899 is limited to foreshore lands only which, quoting Corpus
Juris,:

“ "is that part of the land adjacent to the sea which is alternately covered and left dry by the
ordinary flow of the tides."

According to this Court, this is how the term "foreshore" is "generally understood."7

Almost twenty years thereafter, this Court again defined foreshore lands in the 1984
case of Republic v. Court of Appeals.8 The case involved the registration of a parcel of
land reclaimed by adjoining owners along the shores of the Laguna de Bay. The Director of
Lands opposed the application on the ground that the subject land was foreshore land and
part of the lake bed. Although the case did not involve the sea, this Court, again citing
Bouvier's Law Dictionary, applied the definition of foreshore land.

The term "foreshore lands" clearly does not include submerged lands. If it were
otherwise, there would have been no need for the legislative and executive branches of
government to include "submerged area" or "areas under water" in subsequent laws.9

The foreshore lands and those under water were controlled by the government as
agent of the State and were held in trust for the benefit of the public.10

Figure 1 Salvage Zone as One of the Key Coastal Features11

 Definitions

Foreshore land is the land which lies between the high and low water marks, and that
is alternatively wet and dry according to the flow of the tide. It is that part of the land
which is between high and low water and left dry by the flux and reflux of the tides. It is a
strip of land that lies between the high and low water marks and that is alternatively wet
and dry according to the flow of the tide.13

FORESHORE. The term "foreshore land" has been defined as "that strip of land that lies
between the high and low tide water marks and that is alternatively wet and dry according
to the flow of the tide" or a strip of land margining a body of water (as a lake or stream);
the part of a seashore between the low-water line usually at the seaward margin of a low-
tide terrace and the upper limit of wave wash at high tide usually marked by a beach scarp
or berm.1415

That part of the land adjacent to the sea which is alternatively covered to the sea
which alternatively covered and left dry by the ordinary flow of the tides; i.e., by the
medium line between the greatest and least range of tide (spring tides and neap tides)
16

means the shore of the sea or of channels or creeks that is alternatively covered
and uncovered by the sea at the highest and lowest tides.17

SHORES. Articles 13 of the Spanish Law of Waters of 1866 provide:

“  The Shores. By the shore is understood that space covered and uncovered by the
movement of the tide.

Its interior or terrestrial limit is the line reached by the highest equinoctial tides. Where the
tides are not appreciable, the shore begins on the land side at the line reached by the sea during
ordinary storms or tempests."

Land on the margin of the sea, a lake or a river, -- especially a large river, in which the
water ebbs and flows. Strictly and technically, lands adjacent to the sea or other tidal
waters; the lands adjoining navigable waters, where the tide flows and reflows, which at
high tides are submerged, and at low tides are bare. The "shore" is therefore the space
bounded by the high and low water marks. And this is also true even though the lands may
lie along nonnavigable bodies of water. But where a grant is made of lands adjacent to a
lake or stream unaffected by tides, the "shore" of such lake or stream is the land adjacent
to the water, and in the absence of banks or other highland mark the boundary, the only
definite line is the water's edge.18
 SHORE LANDS. Those lands lying between the lines of high and low water mark. Lands
bordering on the shores of navigable lakes and rivers below the line of ordinary high water.
19

SEASHORE. When the seashore is referred to as a boundary, the meaning must be

understood to be margin of the sea in its usual and ordinary state; the ground between the
ordinary high-water mark and low-water mark is the shore. Hence a deed of land bounded
at or by the "shore" will convey the flats as appurtenant.20

RECLAMATION OF LAND or "RECLAMATION" includes the construction of causeways,

bridges, viaducts, piers, docks, quays, wharves, embankments, sea-walls, landing-places
and other structures.171

"SEABED" means the bed of all territorial and inland tidal waters172 Initially, legislative
intent and later jurisprudential usage clearly delimited the term "foreshore lands" to that
part of the land where the tides literally converge, thus excluding submerged lands. This
restricted explication was unquestionably acknowledged by the other branches of
government when, in passing subsequent related statutes, they added the terms
"submerged areas" or "areas under water" to "foreshore lands". Under the principles of
legal construction, since R.A No. 1899 partakes of the nature of a legislative grant of a
sovereign right to municipalities and chartered cities, that is, the right "to reclaim," it must
be strictly construed against the latter.21

As a general rule, only the National Government can reclaim foreshore lands and other
submerged areas. At times, though, the State, to effectuate an expressed public, policy,
delegates some of its sovereign powers either to the legislature or to some of its alter
egos. One such instance was R.A. No. 1899 which was intended to increase the autonomy
of local governments, an innovation introduced by the Marcos administration. There is no
doubt, however, that R.A. No. 1899 was a mere public grant, a privilege which may be
withdrawn by the granting authority, the sovereign, in the exercise of police power. This is
precisely what President Marcos did when he issued P.D. No. 3A, a valid and effective
means of regaining the State's right to reclaim. It must be noted that this decree was not
revoked by President Aquino when she assumed the presidency.22

Clearly, the judiciary had adopted the dictionary meaning of "foreshore lands" years
before and after the enactment of R.A. No. 1899. Our courts applied this meaning
consistently without extending it to include submerged areas or areas under water. We
are seldom at liberty to set aside a rule of long standing. Our decisions from part of the law
of the land. And when they interpret certain statutes they should be taken into
consideration in construing subsequent statutes of similar nature. It is fair to assume that
the legislature, at the time of the enactment of a statute was advised of the prior holdings
of the courts, and that it would have specifically altered the courts' interpretation if it so
desired.23
 Salvage Zone / Easement
Under the Philippine law, the Salvage Zone is considered a legal easement24 and an
‘open space’,25 which is reserved only for the abovementioned specific public uses. The
Philippine Supreme Court considers this zone as part of the public dominion and is ‘beyond
the commerce of men’, which means that it is not subject to private ownership or any
private possessory right.26 As such, this zone is to be demarcated and excluded from any
survey claim for purposes of registering title to a land.27

No-Build Zone

The government also imposed a hazard zone classification of areas affected by

Haiyan. Under this policy, the government required the observance of the so-called ‘No-
Build Zone’, which is the prohibition to construct any house or private structures within
the Salvage Zone – a legal easement of 3, 20, or 40 metres (depending on whether the
concerned area is urban, agricultural or forest, respectively) from the shorelines or
riverbanks where no building construction is allowed, except for critical facilities (eg, for
fishing or salvage).1

 Joint DENRDILGDNDDPWHDOST Memorandum Circular No 201401,

Adoption of Hazard Zone Classification in Areas Affected by Typhoon Yoland
Haiyan) and Providing Guidelines for Activities Therein (05 November 2014
Philippines) s 6.2.1. ↩
Figure 2 Salvage Zone / Easement28

Salvage Zone - lands measuring twenty (20 meters measured landward from the
interior limit of the shoreline for easement purposes.29 The salvage zone described herein
shall not form part of the agreement.  Further, the lease is subject to easement reserved by
the Law on Waters and to the provisions of Sections 41, 109, 110, 111, 112, 113 and 114 of
C.A. 141 as amended.30

Article 51. The banks of rivers and streams and the shores of the seas, and throughout
their entire length and within a zone of three (3 meters in urban areas, twenty (20 meters
in agricultural areas and forty (40 meters in forest areas, along their margins, are subject
to the easement of public use in the interest of recreation, navigation, floatage, fishing and
salvage x x x “ P.d. NO. 106731

Modes of Disposition of foreshore

lands281
Existing modes of disposition of foreshore land
  Foreshore/Miscellaneous Lease Contract - is an agreement executed by and
between the DENR and the applicant to occupy, develop, utilize, and manage the
foreshore lands. It may also cover marshy land or lands covered with the water
bordering upon the shores or banks of navigable lakes or rivers. Duration : 25 Years

LEGAL BASIS Section 58 of C.A. No. 141

a. “Any tract of land of the public domain which being neither timber nor
mineral land is intended to be used for residential purposes, or for commercial,
industrial or other productive purposes other than agricultural and is open for
disposition or concession shall be disposed of under Chapter 9.”
b. Section 59, foreshore lands are disposable through lease.
c. DAO DENR 2004‐24 entitled : “Revised Rules and Regulations Governing
the Administration and Management of Foreshore Lands”

 Permits Approving authority: Regional Executive Director

Provisional Permit  A permit used for the temporary occupation and use of a tract of
land covered by a prescribed public land application. Duration : 1 Year

Revocable Permit - A permit used for the temporary occupation and use of a tract of
land not covered by a regular public land application. Duration : 1 Year

LEGAL BASIS Section 68 of C.A. No. 141

a. The Secretary of Agriculture and Natural Resources may grant to qualify persons
temporary permission, upon payment of a reasonable charge, for the use of any portion of
the lands covered by this chapter for any lawful private purpose, subject to revocation at
any time when, in his judgment, the public interest shall require it.

b. DANR Lands Administrative Order No. 8‐3 entitled: “Rules and Regulations
Governing the Issuance of temporary Permits of Occupation and Use of Non‐ Mineral, Non‐
Timber Public Lands, and of Lands and Other Real Properties of the Commonwealth of the
Philippines”

Foreshore lease application -

The type of application covering foreshore lands, marshy lands and other lands
bordering bodies of water for commercial, industrial or other productive purposes other
than agriculture.
 Miscellaneous Lease Application –

The type of application covering either a combination of dry land (part of the shore),
foreshore land or permanently underwater land depending on the limitations as certified by
PPA, PRA, DOT and DPWH.

Regulatory Jurisdictions of Other

Agencies over Foreshore Areas282
DENR – survey and management of alienable and disposable public land, issuance of
leases and permits & over matters of forestry, mining and environmental concerns C.A.
141/EO 192

DPWH – over cases involving construction and developments along foreshore areas.
C.A. 141, Sec.66

PPA– issuance of permit regarding construction of pier/port. PD No. 857, Dec. 23,
1975

BFAR – issues or cancels Fishpond Lease Agreements. Fisheries Code of 1998

PRA – responsible over activities pertaining to reclamation. E.O. 525 & 654

DOT – responsible over the development of an area as a tourism zone and marine
reserves. LGC 81, June 4, 1981

LGU – regulate the use such as constructions and building activities covered by
ordinances; prepare comprehensive land use plan; issue building permits. LGC 57, August
10, 1979 & R.A. 7160

HLURB – promulgates zoning and land use standards & guidelines governing land use
plans and zoning ordinances of LGUs. E.O. 648 & 72, R.A. 7279

Common Usage of Foreshore lands

 wharves, piers, ports, docking or dockyard
fish canneries, ice plants, warehouses, fixed industrial machineries & other related
structures
beach resorts, including hotels, rest houses, restaurants
recreational places, parks
village (residential), commercial & industrial estates developed by cities,
municipalities, lately by PRA(reclamation)
fishponds in bays along the shores of navigable lakes and rivers
drying of copra, fishers & fishnets
bathing, plantation, hydro-power, etc.

Damages / Exploitation of Foreshore

Areas
Berm damaged
sink of human refuse and wastes
over-exploitation
climate change phenomenon
invasion of private properties by the movement of the sea/ rising sea levels
illegal construction of improvement from foreshore to offshore
uncontrolled influx of informal settlers
lack of access
informal occupation
unauthorized or illegal reclamation activities
 Public Domain
When the sea moved towards the estate and the tide invaded it, the invaded property
became foreshore land and passed to the realm of the public domain. The Court in
Government v. Cabañgis annulled the registration of land subject of cadastral proceedings
when the parcel subsequently became foreshore land. In another case, the Court voided
the registration decree of a trial court and held that said court has no jurisdiction to award
foreshore land to any person or entity. The subject land in this case, being foreshore land,
should therefore be returned to the public domain.32

Where a certificate of title is issued for a foreshore land, the Republic has legitimate
reason to demand its cancellation and the land reverted back to the State. In that case, res
judicata or estoppel is no defense.33

The ownership of lands reclaimed from

foreshore and submerged areas
The ownership of lands reclaimed from foreshore and submerged areas is rooted in
the Regalian doctrine which holds that the State owns all lands and waters of the public
domain. Upon the Spanish conquest of the Philippines, ownership of all "lands, territories
and possessions" in the Philippines passed to the Spanish Crown.1 The King, as the
sovereign ruler and representative of the people, acquired and owned all lands and
territories in the Philippines except those he disposed of by grant or sale to private
individuals.

The 1935, 1973 and 1987 Constitutions adopted the Regalian doctrine substituting,
however, the State, in lieu of the King, as the owner of all lands and waters of the public
domain.The Regalian doctrine is the foundation of the time-honored principle of land
ownership that "all lands that were not acquired from the Government, either by purchase
or by grant, belong to the public domain."2 Article 339 of the Civil Code of 1889, which is
now Article 420 of the Civil Code of 1950, incorporated the Regalian doctrine. #codal

Foreshore lands are lands of public dominion intended for public use.5 So too are
lands reclaimed by the government by dredging, filling, or other means. Act 1654
mandated that the control and disposition of the foreshore and lands under water
remained in the national government. Said law allowed only the "leasing" of reclaimed
land. The Public Land Acts of 1919 and 1936 also declared that the foreshore and lands
reclaimed by the government were to be "disposed of to private parties by lease only and
not otherwise." Before leasing, however, the Governor General, upon recommendation of
the Secretary of Agriculture and Natural Resources, had first to determine that the land
reclaimed was not necessary for the public service. This requisite must have been met
before the land could be disposed of. But even then, the foreshore and lands under water
were not to be alienated and sold to private parties. The disposition of the reclaimed land
was only by lease. The land remained property of the State.6

 The Recopilacion de Leyes de las Indias declared that: "We, having acquired full
sovereignty over the Indies, and all lands, territories, and possessions not heretofore
ceded away by our royal predecessors, or by us, or in our name, still pertaining to the
royal crown and patrimony, it is our will that all lands which are held without proper
and true deeds of grant be restored to us according as they belong to us, in order
that after reserving before all what to us or to our viceroys, audiencias, and
governors may seem necessary for public squares, ways, pastures, and commons in
those places which are peopled, taking into consideration not only their present
condition, but also their future and their probable increase, and after distributing to
the natives what may be necessary for tillage and pasturage, confirming them in
what they now have and giving them more if necessary, all the rest of said lands may
remain free and unencumbered for us to dispose of as we may wish."3↩

 Cariño v. Insular Government, 41 Phil. 935 1909. The exception mentioned in

Cariño, referring to lands in the possession of an occupant and of his predecessors-
in-interest, since time immemorial, is actually a species of a grant by the State. The
United States Supreme Court, speaking through Justice Oliver Wendell Holmes, Jr.,
declared in Cariño: "Prescription is mentioned again in the royal cedula of October 15,
1754, cited in 3 Philippine, 546; 'Where such possessors shall not be able to produce
title deeds, it shall be sufficient if they shall show that ancient possession, as a valid
title by prescription.' It may be that this means possession from before 1700; but, at
all events, the principle is admitted. As prescription, even against the Crown lands,
was recognized by the laws of Spain, we see no sufficient reason for hesitating to
admit that it was recognized in the Philippines in regard to lands over which Spain
had only a paper sovereignty."4↩

 Lee Hong Hok v. David, supra, at 378; Valenton v. Murciano, supra, at 542543.
↩
 See_ also Republic v. Lee, 197 SCRA 13 1991 ↩
 Article 420 of the Civil Code of 1950 #codal ↩

 Republic Real Estate Corporation v. Court of Appeals, supra note 13. ↩

What are Submerged Areas?

 Submerged areas form part of the public domain, and in that state, are inalienable and
outside the commerce of man. Until reclaimed from the sea, these submerged areas are,
under the Constitution, "waters... owned by the State",34 forming part of the public
domain and consequently inalienable. Only when actually reclaimed from the sea can these
submerged areas be classified as public agricultural lands, which under the Constitution
are the only natural resources that the State may alienate. Once reclaimed and transformed
into public agricultural lands, the government may then officially classify these lands as
alienable or disposable lands open to disposition. Thereafter, the government may declare
these lands no longer needed for public service35. Only then can these reclaimed lands be
considered alienable or disposable lands of the public domain and within the commerce of
man.36

Laguna de Bay
Laguna de Bay has long been recognized as a lake.1 Thus:

Laguna de Bay is a body of water formed in depressions of the earth; it contains fresh
water coming from rivers and brooks or springs, and is connected with Manila Bay by the
Pasig River. According to the definition just quoted, Laguna de Bay is a lake.2

 The Government of the Philippine Islands v. Colegio de San Jose, 53 Phil. 423
1929; also Republic v. Court of Appeals, Nos. L43105, L43190, August 31, 1984,
131 SCRA 532.↩

 Supra, 426. According to this decision, LAKE ... [means] [a] body of water
formed in depressions of the earth. Ordinarily fresh water, coming from rivers,
brooks, or springs are connected with the sea by them. ↩

If the submergence of the land is due to precipitation, it does not become foreshore,
despite its proximity to the waters.37

highest depth
And, "inasmuch as Laguna de Bay is a lake, so Colegio de San Jose1 further tells us,
"we must resort to the legal provisions governing the ownership and use of lakes and their
beds and shores, in order to determine the character and ownership of the parcels of land
in question.1 The recourse to legal provisions is necessary, for under Article 74 of the
Law of Waters, The natural bed or basin of lakes ... is the ground covered by their waters
when at their highest ordinary depth.2 and in which case, it forms part of the national
dominion. When Laguna de Bay's waters are at their highest ordinary depth has been
defined as:

“ ... the highest depth of the waters of Laguna de Bay during the dry season, such depth being
the regular, common, natural, which occurs always or most of the time during the year . . . 3

 Supra, 426427. ↩
 Spanish Law of Waters (1866, supra, art. 74. ↩
 Republic v. Court of Appeals, supra , 538, citing Government v. Colegio de San
Jose, supra, at 426. ↩

Otherwise, where the rise in water level is due to the extraordinary action of nature,
rainfall for instance, the portions inundated thereby are not considered part of the bed or
basin of the body of water in question. It cannot therefore be said to be foreshore land but
land outside of the public dominion, and land capable of registration as private property.

The Director of Lands contends that since a portion of the land sought to be registered
is covered with water four to five months a year, the same is part of the lake bed of Laguna
de Bay, or is at least, a foreshore land, which brings it within the enumeration in Article 502
of the New Civil Code and therefore, it cannot be the subject of registration. The Court
clarified the phrase "highest ordinary depth" in connection with the determination of
foreshore land.

The extend of a lake bed is defined in Article 74 of the Law of Waters of 1866, as
follows: "The natural bed or basin of lakes, ponds, or pools, is the ground covered by their
waters when at their highest ordinary depth."

The phrase "highest ordinary depth" in the above definition has been interpreted in the
case of Government of Philippine Islands v. Colegio de San Jose38 to be the highest depth
of the waters of Laguna de Bay during the dry season, such depth being the "regular,
common, natural, which occurs always or most of the time during the year."

While the waters of a lake are also subject to the same gravitational forces that cause
the formation of tides in seas and oceans, this phenomenon is not a regular daily
occurrence in the case of lakes. Rather, it is the rains which bring about the inundation of a
portion of land in question.
 Since the rise in the water level which causes the submersion of the land occurs during
a shorter period (four or five months a year) than the level of the water at which the land is
completely dry, the latter should be considered as the "highest ordinary depth" of Laguna
de Bay. Therefore. the land sought to be registered is not part of the bed or basin of
Laguna de Bay. Neither can it be considered as foreshore land.39

Disposition of Reclaimed Lands as to Ownership

The Spanish Law of Waters of 1866 was the first statutory law governing the
ownership and disposition of reclaimed lands in the Philippines. On May 18, 1907, the
Philippine Commission enacted Act No. 1654 which provided for the lease, but not the
sale, of reclaimed lands of the government to corporations and individuals. Later, on
November 29, 1919, the Philippine Legislature approved Act No. 2874, the Public Land Act,
which authorized the lease, but not the sale, of reclaimed lands of the government to
corporations and individuals. On November 7, 1936, the National Assembly passed
Commonwealth Act No. 141, also known as the Public Land Act, which authorized the
lease, but not the sale, of reclaimed lands of the government to corporations and
individuals. CA No. 141 continues to this day as the general law governing the
classification and disposition of lands of the public domain.40

PD No. 1084 Creating the Public Estates Authority

Under EO No. 525, in relation to P.D. No. 3A and P.D. No. 1084, Public Estates
Authority (PEA became the primary implementing agency of the national government to
reclaim foreshore and submerged lands of the public domain. Foreshore and submerged
areas indisputably belong to the public domain and are inalienable unless reclaimed,
classified as alienable lands open to disposition, and further declared no longer needed
for public service. Since large portions of these reclaimed lands would obviously be
needed for public service, there must be a formal declaration segregating reclaimed lands
no longer needed for public service from those still needed for public service. Section 3 of
E.O. No. 525, by declaring that all lands reclaimed by PEA "shall belong to or be owned by
the PEA" could not automatically operate to classify inalienable lands into alienable or
disposable lands of the public domain.

On February 4, 1977, then President Ferdinand Marcos issued Presidential Decree No.
1084 creating PEA, a wholly government owned and controlled corporation with a special
charter. Sections 4 and 8 of PD No. 1084, vests PEA with the following purposes and
powers:

"Sec. 4. Purpose. The Authority is hereby created for the following purposes:
 (a) To reclaim land, including foreshore and submerged areas, by dredging, filling
or other means, or to acquire reclaimed land;

(b) To develop, improve, acquire, administer, deal in, subdivide, dispose, lease and
sell any and all kinds of lands, buildings, estates and other forms of real property, owned,
managed, controlled and/or operated by the government;

(c) To provide for, operate or administer such service as may be necessary for the
efficient, economical and beneficial utilization of the above properties.

Sec. 5. Powers and functions of the Authority. The Authority shall, in carrying out the
purposes for which it is created, have the following powers and functions:

(a)To prescribe its by-laws.

xxx

(i) To hold lands of the public domain in excess of the area permitted to private
corporations by statute.

(j) To reclaim lands and to construct work across, or otherwise, any stream,
watercourse, canal, ditch, flume x x x.

xxx

(o) To perform such acts and exercise such functions as may be necessary for the
attainment of the purposes and objectives herein specified." Emphasis supplied)

PD No. 1084 authorizes PEA to reclaim both foreshore and submerged areas of the
public domain. Foreshore areas are those covered and uncovered by the ebb and flow of
the tide.61 Submerged areas are those permanently under water regardless of the ebb
and flow of the tide.62 Foreshore and submerged areas indisputably belong to the public
domain63 and are inalienable unless reclaimed, classified as alienable lands open to
disposition, and further declared no longer needed for public service.

The ban in the 1973 Constitution on private corporations from acquiring alienable
lands of the public domain did not apply to PEA since it was then, and until today, a fully
owned government corporation. The constitutional ban applied then, as it still applies
now, only to "private corporations and associations." PD No. 1084 expressly empowers
PEA "to hold lands of the public domain" even "in excess of the area permitted to private
corporations by statute." Thus, PEA can hold title to private lands, as well as title to
lands of the public domain.
 In order for PEA to sell its reclaimed foreshore and submerged alienable lands of the
public domain, there must be legislative authority empowering PEA to sell these lands.
This legislative authority is necessary in view of Section 60 of CA No.141, which states –

"Sec. 60. x x x; but the land so granted, donated or transferred to a province,

municipality, or branch or subdivision of the Government shall not be alienated,
encumbered or otherwise disposed of in a manner affecting its title, except when
authorized by Congress; x x x." Emphasis supplied)

Without such legislative authority, PEA could not sell but only lease its reclaimed
foreshore and submerged alienable lands of the public domain. Nevertheless, any
legislative authority granted to PEA to sell its reclaimed alienable lands of the public
domain would be subject to the constitutional ban on private corporations from acquiring
alienable lands of the public domain. Hence, such legislative authority could only benefit
private individuals.

Classification of Reclaimed Foreshore Lands and

Submerged Areas

Under Section 2 of Art. XII of the Constitution, the foreshore and submerged areas of
Manila Bay are part of the "lands of public domain, waters and other natural resources" and
consequently "owned by the State." As such foreshore and submerged areas "shall not be
alienated," unless they are classified as "agricultural lands" of the public domain. The mere
reclamation of these areas by Public Estates Authority (PEA does not convert these
inalienable natural resources of the State into alienable or disposable lands of the public
domain.

There must be a law or presidential proclamation officially classifying these reclaimed

lands as alienable or disposable and open to disposition or concession. Moreover, these
reclaimed lands cannot be classified as alienable or disposable if the law has reserved
them for some public or quasi-public use.41361 Admittedly, it cannot be said that MO No.
415, Proclamations Nos. 39 and 465 are explicit declarations that the lands to be reclaimed
are classified as alienable and disposable. The Court finds that such conclusion is derived
and implicit from the authority given to the NHA to transfer the reclaimed lands to qualified
beneficiaries.42

Section 8 of CA No. 141 provides that "only those lands shall be declared open to
disposition or concession which have been officially delimited and classified."43 The
President has the authority to classify inalienable lands of the public domain into alienable
or disposable lands of the public domain, pursuant to Section 6 of CA No. 141.

In Laurel vs. Garcia,44 the Executive Department attempted to sell the Roppongi
property in Tokyo, Japan, which was acquired by the Philippine Government for use as the
Chancery of the Philippine Embassy. Although the Chancery had transferred to another
location thirteen years earlier, the Court still ruled that, under Article 42245 of the Civil
Code, a property of public dominion retains such character until formally declared
otherwise. The Court ruled that –

“ "The fact that the Roppongi site has not been used for a long time for actual Embassy service
does not automatically convert it to patrimonial property. Any such conversion happens only if the
property is withdrawn from public use 46 A property continues to be part of the public domain, not
available for private appropriation or ownership 'until there is a formal declaration on the part of the
government to withdraw it from being such' 47 Emphasis supplied)

Presidential Decree No. 1085, issued on February 4, 1977, authorized the issuance of
special land patents for lands reclaimed by PEA from the foreshore or submerged areas of
Manila Bay. On January 19, 1988 then President Corazon C. Aquino issued Special Patent
No. 3517 in the name of PEA for the 157.84 hectares comprising the partially reclaimed
Freedom Islands. Subsequently, on April 9, 1999 the Register of Deeds of the Municipality
of Paranaque issued TCT Nos. 7309, 7311 and 7312 in the name of PEA pursuant to Section
103 of PD No. 1529 authorizing the issuance of certificates of title corresponding to land
patents. To this day, these certificates of title are still in the name of PEA.

Presidential Decree No. 1085, coupled with President Aquino's actual issuance of a
special patent covering the Freedom Islands, is equivalent to an official proclamation
classifying the Freedom Islands as alienable or disposable lands of the public domain. PD
No. 1085 and President Aquino's issuance of a land patent also constitute a declaration
that the Freedom Islands are no longer needed for public service. The Freedom Islands are
thus alienable or disposable lands of the public domain, open to disposition or concession
to qualified parties.

At the time then President Aquino issued Special Patent No. 3517, PEA had already
reclaimed the Freedom Islands although subsequently there were partial erosions on some
areas. The government had also completed the necessary surveys on these islands. Thus,
the Freedom Islands were no longer part of Manila Bay but part of the land mass. Section
3, Article XII of the 1987 Constitution classifies lands of the public domain into "agricultural,
forest or timber, mineral lands, and national parks." Being neither timber, mineral, nor
national park lands, the reclaimed Freedom Islands necessarily fall under the classification
of agricultural lands of the public domain. Under the 1987 Constitution, agricultural lands of
the public domain are the only natural resources that the State may alienate to qualified
private parties. All other natural resources, such as the seas or bays, are "waters x x x
owned by the State" forming part of the public domain, and are inalienable pursuant to
Section 2, Article XII of the 1987 Constitution.

Clearly, the mere physical act of reclamation by PEA of foreshore or submerged areas
does not make the reclaimed lands alienable or disposable lands of the public domain,
much less patrimonial lands of PEA. Likewise, the mere transfer by the National
Government of lands of the public domain to PEA does not make the lands alienable or
disposable lands of the public domain, much less patrimonial lands of PEA.362

There must be a formal declaration

There must be a formal declaration through the executive or legislative branches of
government that land reclaimed from the sea was no longer needed for coast guard
service, for public use or for special industries in order that such land could be considered
as having ceased to part of the public domain and was now available for private
appropriation or ownership.1 Absent a valid grant and declaration from the State, any
land reclaimed from the sea, whether foreshore or under water, remained property of the
State.

 Ignacio v. Dir. of Lands, 108 Phil. 335, 339 1960 ; Joven v. Director of Lands, 93
Phil. 134, 136137 1953 ; See Aquino, The Civil Code of the Philippines, vol. 1, p. 449
1990 ↩

Absent two official acts – a classification that these lands are alienable or disposable
and open to disposition and a declaration that these lands are not needed for public
service, lands reclaimed by PEA remain inalienable lands of the public domain. Only such
an official classification and formal declaration can convert reclaimed lands into alienable
or disposable lands of the public domain, open to disposition under the Constitution, Title I
and Title III 48 of CA No. 141 and other applicable laws.49

The reclaimed lands being leased or sold by PEA are not private lands, in the same
manner that DENR, when it disposes of other alienable lands, does not dispose of private
lands but alienable lands of the public domain. Only when qualified private parties acquire
these lands will the lands become private lands. In the hands of the government agency
tasked and authorized to dispose of alienable of disposable lands of the public domain,
these lands are still public, not private lands.50 Furthermore, PEA's charter expressly
states that PEA "shall hold lands of the public domain" as well as "any and all kinds of
lands." PEA can hold both lands of the public domain and private lands. Thus, the mere fact
that alienable lands of the public domain like the Freedom Islands are transferred to PEA
and issued land patents or certificates of title in PEA's name does not automatically make
such land private.51

To allow vast areas of reclaimed lands of the public domain to be transferred to PEA as
private lands will sanction a gross violation of the constitutional ban on private
corporations from acquiring any kind of alienable land of the public domain.421

Likewise, it worthy to mention Section 14, Chapter 4, Title I, Book III of the
Administrative Code of 1987, thus:

Sec. 14. Power to Reserve Lands of the Public and Private

Dominion of the Government. -

1 The President shall have the power to reserve for settlement or public use, and for
specific public purposes, any of the lands of the public domain, the use of which is not
otherwise directed by law. The reserved land shall thereafter remain subject to the
specific public purpose indicated until otherwise provided by law or proclamation.

Reclaimed lands such as the subject lands in issue are reserved lands for public use. They
are properties of public dominion. The ownership of such lands remains with the State
unless they are withdrawn by law or presidential proclamation from public use.52

When did the declaration took effect?

It did so only after the special patents covering the reclaimed areas were issued. It is
only on such date that the reclaimed lands became alienable and disposable lands of the
public domain. This is in line with the ruling in the PEA Case where said issue was clarified:

“ Presidential Decree 1085, coupled with President Aquino's actual issuance of a special patent
covering the Freedom Islands, is equivalent to an official proclamation classifying the Freedom
Islands as alienable and disposable lands of the public domain. P.D. No. 1085 and President Aquino's
issuance of a land patent also constitute a declaration that the Freedom Islands are no longer
needed for public service. The Freedom Islands are thus alienable and disposable lands of the public
domain, open to disposition and concession to qualified parties.53

Thus, MO. No. 415 and Proclamations Nos. 39 and 465 cumulatively and jointly taken
together with Special Patent Nos. 3591, 3592, and 3598 more than satisfy the requirement
in the PEA Case that "there must be a law or presidential proclamation officially classifying
these reclaimed lands as alienable or disposable and open to disposition and concession."
54

With reference to the requisite law categorizing reclaimed land as alienable and
disposable, the Court finds that R.A. No. 6957 Built-Operate-and-Transfer [BOT Law]), as
amended by R.A. No. 7718, provides ample authority for the classification of reclaimed land
in the SMDRP for the repayment scheme of the BOT project as alienable and disposable
lands of public domain. Section 6 of the said law as amended provides:

“ For the financing, construction, operation and maintenance of any infrastructure projects
undertaken through the build-operate-and-transfer arrangement or any of its variations pursuant to
the provisions of this Act, the project proponent may likewise be repaid in the form of a share in the
revenue of the project or other non-monetary payments, such as, but not limited to, the grant of a
portion or percentage of the reclaimed land, subject to the constitutional requirements with respect
to the ownership of the land.

While RA 6957 as modified by RA 771855 does not expressly declare that the
reclaimed lands that shall serve as payment to the project proponent have become
alienable and disposable lands and opened for disposition; nonetheless, this conclusion is
necessarily implied, for how else can the land be used as the enabling component for the
Project if such classification is not deemed made?

It may argued that the grant of authority to sell public lands, pursuant to the PEA Case,
does not convert alienable lands of public domain into private or patrimonial lands.56 The
Court ruled in the PEA Case that "alienable lands of the public domain must be transferred
to qualified private parties, to government entities not tasked to dispose of public lands,
before these lands can become private or patrimonial lands."

To lands reclaimed by PEA or through a contract with a private person or entity, such
reclaimed lands still remain alienable lands of public domain which can be transferred only
to Filipino citizens but not to a private corporation. This is because PEA, under P.D. No.
1084 and E.O. No. 525, is tasked to hold and dispose of alienable lands of public domain
and it is only when it is transferred to Filipino citizens that it becomes patrimonial property.
On the other hand, the NHA is a government agency not tasked to dispose of public lands
under its charter - P.D. No. 727. THe NHA is an "end-user agency" authorized by law to
administer and dispose of reclaimed lands. The moment titles over reclaimed lands based
on the special patents are transferred to the NHA by the Register of Deeds, they are
automatically converted to patrimonial properties of the State which can be sold to
Filipino citizens and private corporations, 60% of which are owned by Filipinos. The
reason is clear: if the reclaimed land is not converted to patrimonial land once transferred
to NHA, then it would be useless to transfer it to the NHA since it cannot legally transfer or
alienate lands of public domain. More importantly, it cannot attain its avowed purposes and
goals since it can only transfer patrimonial lands to qualified beneficiaries and prospective
buyers to raise funds for the SMDRP.

From the foregoing considerations, the Court finds that the 79-hectare reclaimed land
has been declared alienable and disposable of the public domain; and in the hands of NHA,
it has been reclassified as patrimonial property. The conduct of the survey, the preparation
of the survey plan, the computation of the technical description, and the processing and
preparation of the special patent are matters within the technical area of expertise of
administrative agencies like the DENR and the Land Management Bureau, and are generally
accorded not only the respect, but at times even finality.57 Preparation of special patents
calls for technical examination and a specialized review of calculations and specific details
which the court are ill-equipped to undertake; hence, the latter defer to the administrative
agency which is trained and knowledgeable on such matters.58

The special patents issued in the name of the NHA and submitted to the Register of
Deeds of the City of Manila for registration, and issuance of corresponding certificate of
titles over the reclaimed lots were based on said special patents. The issuance of
certificate of titles in NHA's name automatically converts the reclaimed lands to patrimonial
properties of the NHA. Otherwise, the lots would not be of use to the NHA's housing
project or as payment to the BOT contractor as the enabling component of the BOT
contract. The laws of the land have to be applied and interpreted depending on the
changing conditions and times.

Tempora mutantur et legis mutantur in illis

Time changes and laws change with it)

One such law that should be treated differently is the BOT Law (R.A. No. 6957 which
brought about a novel way of implementing government contracts by allowing reclaimed
land as part or full payment to the contractor of a government project to satisfy the huge
financial requirements of the undertaking. The NHA holds the lands covered by Special
Patents NOs. 3592 and 3598 solely for the purpose of the SMDRP undertaken by authority
of the BOT Law and for disposition in accordance with said special law. The lands become
alienable and disposable lands of public domain upon issuance of the special patents and
become patrimonial properties of the Government from the time the titles are issued to the
NHA.

Petitioner's sole reliance on Proclamations Nos. 39 and 465 without taking into
consideration the special patents issued by the DENR demonstrates the inherent weakness
of his proposition. As was ruled in the PEA Case cited by petitioner himself, "P.D. No. 1085,
coupled with President Aquino's actual issuance of a special patent covering the Freedom
Islands is equivalent to an official proclamation classifying the Freedom Islands as alienable
and disposable of public domain." In a similar vein, the combined and collective effect of
Proclamations Nos. 39 and 465 with Special Patent Nos. 3592 and 3598 is tantamount to
and can be considered to be an official declaration that the reclaimed lots are alienable or
disposable lands of the public domain.59

Lease contract; foreshore land

Process steps for the issuance of lease contract:

 Acceptance of Application (CENRO

 Verification, recording, numbering and filing.
 Encoding and scanning of application.
 Referral to Land Investigator/Deputy Public Land Investigator
 Conduct Ocular Inspection/Investigation/Geo-tagged.
 Preparation and submission of Report.
 Conduct of Appraisal
 Research (zonal value and market value)
 Preparation and submission of Appraisal Committee Report.
 Indorsement/Transmittal of Application with Appraisal Report to PENRO
 Checking/Review of requirements.
 Preparation and Transmittal of Appraisal Report to PENRO.
 Indorsement/Transmittal of Regional Executive Director to Land Management
Bureau.
 Review and evaluation of documents.
 Transmittal and recommendation of Appraisal Report in CSW form.
 Indorsement/Transmittal of Land Management Bureau to the Secretary.
 Final review and evaluation of documents
 Transmittal and recommendation of Appraisal Report in CSW form.
 Approval of Appraisal and grant of authority to lease thru bidding by the
Secretary
 Indorsement/Transmittal of approved Appraisal Report to Regional Office.
 Indorsement/Transmittal of approved Appraisal Report to PENRO.
 Indorsement/Transmittal of approved Appraisal Report to CENRO.
 Indorsement/Transmittal of PENRO to the Regional Executive Director.
 Public Bidding and Issuance of Order of Award.
 Act of Bidding
 Preparation of Report of Bidding and Recommendation of Bid of Award
 Preparation of Order of Award and Lease Contract
 Indorsement/Transmittal of Award and Lease Contract to PENRO
 Indorsement/Transmittal of Order of Award and Lease Contract to Regional
Executive Director
 Indorsement/Transmittal of Order of Award and Lease Contract to LMB.
 Final review and evaluation of documents, Order of Award and Lease
Contract
 Transmittal and recommendation of Order of Award and Lease Contract in
CSW form
 Approval of Order of Award (1,000 square meters and above) and Lease Contract
by the Secretary
 Transmittal of the Approved Order of Award and Lease Contract to Regional
Executive Director.
 Transmittal of the Approved Order of Award and Lease Contract to PENRO.
 Transmittal of the Approved Order of Award and Lease Contract to CENRO.
 Transmittal of the Approved Order of Award and Lease Contract to applicant.

Articles:
THE STATE OF PHILIPPINE FORESHORE LAND MANAGEMENT -
https://www.doe.gov.ph/sites/default/files/pdf/eicc/eicc-planning-conference-materials-
lmb-foreshore-presentation.pdf

Related:

Title IV  Some Special Properties > Article 502

Eminent Domain
The Regalian Doctrine

 First Year, Juris Doctor, University of San Jose Recoletos School of Law. Personal
website: www.cliffordx.com ) ↩
 Republic Real Estate Corporation v. Court of Appeals, G.R. No. 103882, November
25, 1998, See concurring opinion of Justice Renato S. Puno. ↩
 6724R, 49 O.G. No. 5, p. 1863 1953 ↩
 Id., at 1865 ↩
 L21870, February 3, 1965 ↩

 L22669, February 3, 1965. Before the Ponce cases, the Supreme Court, in an
obiter dictum in Ignacio v. Director of Lands12 declared that foreshore land is covered
by the ebb and flow of the tide, and, pursuant to the Spanish Law of Waters of 1866,
formed part of the public domain.↩

 Republic Real Estate Corporation v. Court of Appeals, supra. see concurring

opinion of Justice Renato S. Puno. ↩
  131 SCRA 532, 539 1984 ↩
 Republic Real Estate Corporation v. Court of Appeals, supra. see concurring
opinion of Justice Renato S. Puno. ↩
 Kock Wing v. Phil. Railway Co.,G.R. No. 31662, February 14, 1930 ↩
 Department of Environment and Natural Resources, Bureau of Fisheries and
Aquatic Resources of the Department of Agriculture, and Department of Interior and
Local Government, Philippine Coastal Management Guidebook No 8 Coastal Law
Enforcement (2001 27 ↩
 108 Phil. 335, 337338 1960 ↩
 Republic v. Lensico, G.R. No. 158919, August 9, 2005; Republic v. Alagad, G.R. No.
L66807, January 26, 1989; Republic v. Imperial, Jr., 103 SCAD 380, 303 SCRA 127
1999; Republic v. Court of Appeals, supra , 539; The Government of the Philippine
Islands v. Colegio de San Jose, 53 Phil. 423 1929 at 428429. ↩
 Webster's Third New International Dictionary ↩
 See Republic v. Court of Appeals, G.R. No. 103882 and 105276, November 25,
1998, 299 SCRA 199; Sec. 446, R.A. No. 8550 or The Fisheries Code of 1998. ↩
 Black's Law Dictionary, 3rd Edition, page 800. ↩

 TUVALU, Foreshore and Land Reclamation Act, 2008, page. 5↩↩↩

 Black's Law Dictionary, 3rd Edition, page 1623. ↩

 Ibid. ↩
 Ibid. ↩
 Justice Romero, Separate Opinion, Republic v. Court of Appeals, G.R. No. 103882
and 105276, November 25, 1998, 299 SCRA 199 ↩
 Ibid. ↩
 State v. Stueve, 150 N.W. 2d 597, 599 Iowa 1967; see also Sutherland, supra, at
256261. ↩
 arts 613, 614, New Civil Code ↩
 P.D. No 1216, Defining Open Space in Residential Subdivisions and Amending
Section 31 of Presidential Decree No 957 Requiring Subdivision Owners to Provide
Roads, Alleys, Sidewalks and Reserve Open Space for Parks for Recreational Use
Philippines) s 1 ↩
 Spouses Gulla v Heirs of Labrador, GR No 149418, 27 July 2006 Supreme Court
of the Philippines); Pilar Development Corp v Dumadag, GR No 194336, 11 March 2013
Supreme Court of the Philippines) ↩
 ↩

 Source:https://www.doe.gov.ph/sites/default/files/pdf/eicc/eicc-planning-
conference-materials-lmb-foreshore-presentation.pdf↩↩↩

 DAO DENR 2004‐24, SECTION 2(f) ↩

 DAO DENR 2004‐24, SECTION 147 ↩
 DAO No. 9921, June 11, 1999 ↩
 Republic v. Court of Appeals and Morato, G.R. No. 100709, November 14, 1997,
281 SCRA 639. ↩
 Republic v. Alagad, G.R. No.66807, January 26, 1989, 169 SCRA 455 ↩
 Art. XII, Sec. 2, 1987 Constitution. ↩
 See Article 424  2 Property for public service ↩

 Chavez v. Public Estates Authority and AMARI Coastal Bay Development Corp.,
G.R. No. 133250, July 9, 2002↩↩↩

 Republic v. Alagad, G.R. No. L66807, January 26, 1989 ↩

 The Government of the Philippine Islands v. Colegio de San Jose, 53 Phil. 423
1929 ↩
 Meneses v. Court of Appeals, G.R. No. 82220, July 14, 1995 ↩
 Chavez v. Public Estates Authority, supra. ↩
 Section 8 of CA No. 141 ↩

 Chavez v. Public Estates Authority, supra.↩↩

 Emphasis supplied. ↩

 187 SCRA 797 1990. ↩

 Article 422 of the Civil Code states as follows: "Property of public dominion, when
no longer needed for public use or public service, shall form part of the patrimonial
property of the State." #codal ↩

 Cebu Oxygen and Acetylene Co. v. Bercilles, 66 SCRA 481 1975 ↩
 Ignacio v. Director of Lands, 108 Phil. 335 1960 " ↩
 On "Lands for Residential, Commercial, or Industrial and other Similar Purposes."
↩

 RA No. 293, enacted on June 16, 1948, authorized the sale of marshy lands under
certain conditions. Section 1 of RA No. 293 provided as follows: "The provisions of
section sixty-one of Commonwealth Act Numbered One hundred and forty-one to the
contrary notwithstanding, marshy lands and lands under water bordering on shores or
banks or navigable lakes or rivers which are covered by subsisting leases or leases
which may hereafter be duly granted under the provisions of the said Act and are
already improved and have been utilized for farming, fishpond, or similar purposes for
at least five years from the date of the contract of lease, may be sold to the lessees
thereof under the provisions of Chapter Five of the said Act as soon as the President,
upon recommendation of the Secretary of Agriculture and Natural Resources, shall
declare that the same are not necessary for the public service."↩
 Republic of the Philippines v. City of Parañaque, G.R. No. 191109, July 18, 2012 ↩
 Ibid ↩
 Real Property: Ownership and Registration, Mamalateo, 2021, p. 23 ↩
 G.R. No. 157036, June 9, 2004, 431 SCRA 534, 555; citing EO 292, Book IV,
Chapter 7. ↩
 Supra note 50, at 216. ↩
 BOT Law ↩
 Id. at 235. ↩
 Republic of the Philippines v. Manila Electric Company, G.R. No. 141314, April 9,
2003, 401 SCRA 130, 141. ↩
 Id. at 142 ↩

 Chavez v. National Housing Authority, RII Builders, et al., G.R. No. 164527, August
15, 2007↩