(concurring in part; dissenting in part).
While I agree with much that is in the majority opinion, I cannot concur with my brothers in their conclusion that the destruction of the plaintiffs’ oyster beds was a maritime tort falling within the admiralty jurisdiction of the court. My reading of Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), indicates that the maritime nexus requisite for admiralty jurisdiction is a “relationship between the tort and traditional maritime activities, involving navigation or commerce on navigable waters.” (Emphasis Added) Id., at 256, 93 S.Ct. at 498. We recognized the restrictive nature of such a nexus in declining admiralty jurisdiction of the aquatic accidents in Crosson v. Vance, 484 F.2d 840 (4 Cir. 1973), and Onley v. South Carolina Electric & Gas Co., 488 F.2d 758 (4 Cir. 1973), and in my opinion the cultivation of oysters is not a traditional form of maritime commerce and navigation which would support admiralty *1036jurisdiction in this case. I think my conclusion on this point is consonant with the jurisdictional philosophy of Executive Jet but it does not rest on that alone for it is based upon decisions of the Court extending back well into the last century.
In Smith v. Maryland, 18 How. 71, 59 U.S. 71, 15 L.Ed. 269 (1855), a Maryland statute regulating the harvesting of oysters in its waters was challenged on the grounds that it was repugnant to the commerce clause of the Constitution and conflicted with the admiralty jurisdiction of the United States. In upholding the statute, the Court noted that “[wjhatever soil below low-water mark is the subject of exclusive propriety and ownership, belongs to the State on whose maritime border, and within whose territory it lies, subject to any lawful grants of that soil by the State, * * Id., at 74. On the question of admiralty jurisdiction the Court said:
“But we consider it to have been settled by this court in United States v. Bevans, 3 Wheat. 386, that this clause in the constitution did not affect the jurisdiction, nor the legislative power of the States, over so much of their territory as lies below high-water márk, save that they parted with the power so to legislate as to conflict with the admiralty jurisdiction or laws of the United States. As this law conflicts neither with the admiralty jurisdiction of any court of the United States conferred by congress, nor with any law of congress whatever, we are of opinion it is not repugnant to this clause of the constitution.” Id., at 76.
Some years later in McCready v. Virginia, 4 Otto, 391, 94 U.S. 391, 24 L.Ed. 248 (1876), the Court had occasion to consider the authority of Virginia to regulate oyster cultivation in its tidal rivers. Again recognizing that each state owns the beds of all tidal waters within its jurisdiction, the Court stated:
“The title thus held is subject to the paramount right of navigation, the regulation of which, in respect to foreign and inter-state commerce, has been granted to the United States. There has been, however, no such grant of power over the fisheries. These remain under the exclusive control of the State, * * *.” Id., at 394-395.
Concluding that the Virginia statute did not violate the commerce clause, the Court observed that “[tjhere is here no question of transportation or exchange of commodities, but only of cultivation and production.” Id., at 396. The jurisdictional principles of Smith and McCready were recognized and reaffirmed in Manchester v. Massachusetts, 139 U.S. 240, 11 S.Ct. 559, 35 L.Ed. 159 (1891).
Additionally, the authority of the states over shellfish cultivation was specifically recognized by the Congress in the Submerged Lands Act of 1953,43 U.S.C. § 1301, et seg.9 The construction and application of this legislation has been consistent with the venerable decisions upon which I rely, and in Corsa v. Tawes, 149 F.Supp. 771 (D.Md. 1957), aff’d 355 U.S. 37, 78 S.Ct. 116, 2 L.Ed.2d 70, Judge Sobeloff discerned the legislative purpose as follows:
“Congress has not sought to impose uniformity, but has been content to leave the matter to local authority and has recently made this intention explicit in the Submerged Lands Act of 1953.” Id., at 773.
While it is true the Act provides that nothing in it shall affect the constitutional rights of the United States to regulate or improve navigation or to provide for flood control or the production of power,10 none *1037of these rights so reserved have any operative bearing upon the case before us.
In the light of this legislation and the decisions of the Court, I think it is clear that the cultivation of oysters in the Warwick River was a purely local activity subject to the laws and jurisdiction of the State of Virginia, and that the City’s negligent intrusion upon the plaintiffs’ oyster beds was not a maritime tort.11 Under these circumstances, the plaintiffs do not fall within the admiralty exception to the statutory notice requirement, and their failure to comply therewith barred their cause of action against the City.
On Petition for Rehearing En Banc
Before HAYNSWORTH, Chief Judge, WINTER, CRAVEN,* BUTZNER and RUSSELL, Circuit Judges; FIELD, Senior Circuit Judge, WIDENER and HALL, Circuit Judges, sitting en banc. FIELD, Senior Circuit Judge:The plaintiffs filed this action charging that their oyster beds leased to them by the Commonwealth of Virginia had been destroyed as the result of the improper operation of a sewage disposal system by the defendants, City of Newport News (City) and Hampton Roads Sanitation Commission (Commission). Jurisdiction was asserted under 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1333 (admiralty and maritime jurisdiction). The district court entered final judgment in favor of the defendants and the plaintiffs have appealed.
At the close of the plaintiffs’ evidence the district court granted the Commission’s motion for a directed verdict upon the ground that there was no evidence of negligence or other conduct on its part which would give rise to any liability. The trial continued with respect to the City and the jury found it guilty of actionable negligence. Despite the jury’s finding, the court granted the City’s motion for judgment n.o.v., concluding that the doctrine of sovereign immunity relieved it from liability from any negligent conduct. Alternatively, the court found that the failure of the plaintiffs to give the sixty day statutory notice of their claims as required by Section 8-653, Va.Ann.Code, 1957 Repl.Vol.,1 barred them from recovery. Upon appeal the plair challenged the conclusion of the distrk t, mt upon both of these issues.
When this appeal was initially heard a majority of the panel concluded that this case fell within the admiralty and maritime jurisdiction of the court, and that under the weight of admiralty authority neither the Virginia doctrine of sovereign immunity nor the statutory notice requirement would bar the plaintiffs from recovery.2 Rehearing en banc was ordered for consideration of the admiralty jurisdiction issue.
In finding that there was admiralty jurisdiction the panel majority observed that, like fishing, the harvesting of oysters is a traditionally maritime activity, and that the cultivation of oysters is so closely related to the harvesting that any interference therewith meets the situs and nexus test of Executive Jet Aviation v. Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). We are unable to agree, however, that the present case should be viewed in the perspective of the entire spectrum of the oystering industry. Rather, in our opinion, the interests of the plaintiffs are purely local in their nature, and any alleged impairment thereof falls within the jurisdiction of the *1038state and not the admiralty jurisdiction of the federal courts.
As heretofore stated, the plaintiffs’ property rights in the oyster beds were derived by leases from the State of Virginia. Recognition of the sovereignty and title of the states to lands underlying navigable waters within their boundaries goes back to the early days of the Republic. Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 11 L.Ed. 565 (1845). The title of the state to such land stems from the Constitution itself, and the nature of such ownership was stated in Weber v. Harbor Commissioners, 85 U.S. (18 Wall.) 57, 65-66, 21 L.Ed. 798 (1873):
“Upon the admission of California into the Union upon equal footing with the original States, absolute property in, and dominion and sovereignty over, all soils under the tidewaters within her limits passed to the State, with the consequent right to dispose of the title to any part of said soils in such manner as she might deem proper, subject only to the paramount right of navigation over the waters * * *.” (Emphasis added.)
The sovereignty and jurisdiction of the states was recognized in Smith v. Maryland, 59 U.S. (18 How.) 71, 15 L.Ed. 269 (1855), where a Maryland statute regulating the harvesting of oysters in its waters was challenged on the grounds that it was repugnant to the commerce clause of the Constitution and conflicted with the admiralty jurisdiction of the United States. In upholding the statute, the Court noted that “[wjhatever soil below low-water mark is the subject of exclusive propriety and ownership, belongs to the State on whose maritime border, and within whose territory it lies, subject to any lawful grants of that soil by the State, * * Id., at 74. On the question of admiralty jurisdiction the Court said:
“But we consider it to have been settled by this court, in United States v. Bevans, 3 Wheat [336] 386, [4 L.Ed. 404], that this clause in the constitution did not affect the jurisdiction, nor the legislative power of the States, over so much of their territory as lies below high-water mark, save that they parted with the power so to legislate as to conflict with the admiralty jurisdiction or laws of the United States. As this law conflicts neither with the admiralty jurisdiction of any court of the United States conferred by congress, nor with any law of congress whatever, we are of opinion it is not repugnant to this clause of the constitution.” Id., at 76.
Some years later in McCready v. Virginia, 94 U.S. (IV Otto) 391, 24 L.Ed. 248 (1876), the Court had occasion to consider the authority of Virginia to regulate oyster cultivation in its tidal rivers, and the purely local nature of such cultivation was stated as follows:
“The planting of oysters in the soil covered by water owned in common by the people of the State is not different in principle from that of planting corn upon dry land held in the same way. Both are for the purposes of cultivation and profit; and if the State, in the regulation of its public domain, can grant to its own citizens the exclusive use of dry lands, we see no reason why it may not do the same thing in respect to such as are covered by water.” Id., at 396.
Concluding that the Virginia legislation did not violate the commerce clause the Court observed that “[t]here is here no question of transportation or exchange of commodities, but only of cultivation and production. Commerce has nothing to do with land while producing, but only with the product after it has become the subject of trade.” Id., at 396.
In the light of these authorities, we think it is clear that the cultivation of oysters by the plaintiffs under leases from the State of Virginia is a purely local activity subject to the laws and jurisdiction of the state,3 and *1039that the City’s negligent intrusion upon the plaintiffs’ oyster beds was not a maritime tort. Our holding is, of course, a narrow one for we recognize that many activities incident to the harvesting of oysters may properly be the subject of admiralty. Concededly, a collision involving an oyster boat or injury to a crewman on board such a vessel is as “traditionally maritime” as any other commercial activity involving the use and operation of vessels on navigable waters. However, damage to the plaintiffs’ leaseholds from sewage discharges is not, in our opinion, related to the maritime aspects of the oystering industry.
The judgment of the district court is affirmed.
AFFIRMED.
Judge Winter and Judge Butzner dissent for the reasons stated by Judge Thomsen in the majority opinion for the panel that initially heard this case, Moore v. Hampton Roads Sanitation Commission, 557 F.2d 1030 (4th Cir. 1976).
. 43 U.S.C. § 1311(a) reads in pertinent part as follows:
“(a) It is determined and declared to be in the public interest that (1) title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters, and (2) the right and power to manage, administer, lease, develop, and use the said lands and natural resources all in accordance with applicable State law be, * * * vested in and assigned to the respective States.”
Oysters are included within the term “natural resources” as defined in the Act. 43 U.S.C. § 1301(e).
. 43 U.S.C. § 1311(d).
. The cases cited by the majority in support of its position on this point are not entirely apposite since each of them involved oil spills and liability was premised upon specific federal legislation, e. g., Rivers and Harbors Act of 1899, 33 U.S.C. § 407; Water Quality Improvement Act, 33 U.S.C. § 1161(b)(2); and Outer Continental Shelf Lands Act, 43 U.S.C. § 1331, et seq.
. Section 8-653 was amended in 1973 but the plaintiffs’ claims are governed by the statute as it stood prior to the amendment.
. Moore v. Hampton Roads Sanitation Commission, (4 Cir., 1976), 557 F.2d 1030.
. The authority of the states over shellfish cultivation was explicitly recognized by the Congress in the Submerged Lands Act of 1943, 43 U.S.C. § 1301, et seq.
43 U.S.C. § 1311(a) reads in pertinent part as follows:
“(a) It is determined and declared to be in the public interest that (1) title to and owner*1039ship of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters, and (2) the right and power to manage, administer, lease, develop, and use the said lands and natural resources all in accordanee with applicable State law be, * * * vested in and assigned to the respective States
Oysters are included within the term “natural resources” as defined in the Act. 43 U.S.C. § 1301(e).