KANABEC COUNTY COOPERATIVE OIL ASSOCIATION, Senator H. H. HUMPHREY, United States Senate, Washington, D. C. DEAR SENATOR HUMPHREY: The board of directors of our association in their monthly meeting yesterday, February 27, passed the following resolution which they instructed me to send to you: "Whereas the vast deposits of oil valued at upward of $50 billion, which lie far out beneath the coastal waters of the Gulf of Mexico and the Pacific Ocean, rightfully belong to all of the people of the United States as the Supreme Court of the United States has repeatedly held; and "Because it would be unjust to surrender the ownership of these vast natural resources to the States of Texas, California, and Louisiana since they lie outside of the recognized tidelands which belong to these States. "Therefore, you are respectfully urged to use your influence to retain the ownership of those resources under the control of all of the States as they are at present." We hope that you will give this important matter your careful attention as it is of vital importance to all of the people of the United States. If the oil lobby succeeds in their efforts to take this oil from all of the States in favor of three States, it may someday greatly embarrass our Republican administration. Respectfully yours, CARL J. JOHNSON, A RESOLUTION OF THE MEMBERS OF THE DEMOCRATIC PARTY OF THE HOUSE OF REPRESENTATIVES OF THE 33D LEGISLATIVE ASSEMBLY OF THE STATE OF MONTANA RESPECTFULLY URGING THAT THOSE OIL-RICH LANDS OF THE OPEN SEAS ADJOINING THESE UNITED STATES BE RETAINED BY THE FEDERAL GOVERNMENT; THAT IMMEDIATE DEVELOPMENT OF THIS NATURAL RESOURCE PROCEED AND THE INCOME THEREFROM BE USED FOR THE NATIONAL DEFENSE OR OTHER ESSENTIAL GOVERNMENTAL PROJECTS Whereas the American people are offered an opportunity to assist their national-defense program, or other worthy governmental projects, making use of income from oil-rich lands lying beneath the open seas adjoining these United States; and, Whereas the Government of the United States has asserted jurisdiction over these areas against all other nations, from the year 1793, and at no time has relinquished its sovereignty over these open seas; and, Whereas there is no tidelands controversy, and contrary to widespread misunderstanding, the area does not involve any tidelands, which are lands covered and uncovered by the daily ebb and flow of the tides; nor does it involve any lands under bays, ports, rivers, or other inland waters, so that there is no threat to or cloud upon the titles of the several States to actual tidelands or the improvements thereon; and, Whereas the Supreme Court of the United States has 3 times declared that these oil-rich lands which are submerged by the open seas belong to all the peoples of these 48 States, and not to the adjoining States alone; and, Whereas, the moneys from this natural resource of the Nation should be dedicated to the long-range needs of the national-defense program or other essential governmental projects; and Whereas oil for national defense proposes no new departure into unknown realms, but is only a continuation of the policy of the wisdom of our forefathers who provided the States with millions of acres of public lands to establish and support our schools: Therefore be it Resolved by the Democratic Members of the House of Representatives of the 33d Legislative Assembly of the State of Montana, That we most respectively do urge that those oil-rich lands of the marginal seas be retained by these United States; that immediate development of those oil resources may proceed, and the revenues thereon be used for our national defense or other commendable governmental enterprise, and thereby aid in securing the future safety and well-being of our Nation. In witness whereof the undersigned being all the Democratic Members of the House of Representatives of the 33d Legislative Assembly of the State of Montana, ve aflixed their signatures hereto this 26th day of February A. D. 1953. John J. MacDonald, Garfield County; Leo C. Graybill, Cascade County; HOUSE RESOLUTION 24 Whereas the Supreme Court of the United States has judicially determined that the oil off the coast of the coastal States belongs to all the States; and Whereas there is a plan whereby a part of the revenues derived by the United States Government from such oil would be distributed to each of the several States for educational purposes; and Whereas there is now pending before Congress proposed legislation which would give such oil to those States adjacent to the coastal area, and thus deprive most of the other States, of which Tennessee is one, of any benefit from the production of such oil, and this deprives the school children of their birthright: Now, therefore, be it Resolved by the house of representatives, That any such legislation is detrimental to the school children of Tennessee, and should be defeated; be it further Resolved, That a copy of this resolution be furnished to each member of the Tennessee delegation in Congress. SENATE RESOLUTION 12 RESOLUTION RELATING TO THE TIDELANDS AND SUBMERGED LANDS ISSUE PENDING BEFORE THE CONGRESS OF THE UNITED STATES Whereas for more than 150 years the original colonies now embraced within the various States of the Union and the States since their admission to the Union have been recognized as the owners of the tidelands adjacent to their boundaries on the Atlantic and Pacific Oceans and on the Gulf of Mexico and under the inland waters in the various States of the Union, this principle having been recognized by a decision of the Supreme Court of the United States in 1845 in the case of Pollard v. Hagan (3 How. (U. S.) 391) and followed in more than 50 other decisions of the Supreme Court of the United States and approved in more than 250 opinions of the Federal courts of the United States and in opinions of the Supreme Court of the various States; and Whereas this recognition of ownership in the States prevailed until the split decision of the United States Supreme Court in the case of U. 8. v. California (332 U. S. 19), in 1946, with ringing dissents from the majority opinion in that case by Mr. Justice Frankfurter and Mr. Justice Reed, with Mr. Justice Jackson not participating in the opinion; and Whereas the question was again before the Court in the case of U. §. v. Teras (339 U. S. 707), in which the doctrine embraced in the decision in the California case was affirmed in a split decision by Mr. Justice Douglas, with Mr. Justice Jackson and Mr. Justice Clark taking no part in the consideration of this case and with Mr. Justice Reed, Mr. Justice Minton, and Mr. Justice Frankfurter dissenting, leaving the decision to be handed down by 4 members of the Supreme Court of the United States with 3 dissents and 2 members not participating; and Whereas, by a like decision by Mr. Justice Douglas in the case of U. S. v. Louisiana, the doctrine in the California case was reaffirmed; and Whereas the Supreme Court never has yet held that the United States owns these tidelands and submerged lands but has only held that the United States Government "has the paramount right and power" over these lands; and Whereas bills have been passed by the Congress of the United States in two instances within recent years quitclaiming these tidelands and submerged lands to the respective States adjacent to them and said bills have on both occasions been vetoed by the President; and Whereas there is now pending before the Congress of the United States various bills authorizing that these lands be quitclaimed, one of which is known as Senate Joint Resolution No. 13, by Senator Holland, of Florida, and 39 other Senators, and which is identical in its terms with the so-called tidelands bill enacted by the Congress in 1952 and known as Senate Joint Resolution No. 20, which was vetoed by President Truman; and Whereas President Eisenhower has stated in his campaign for election and has given the Members of the Senate of the United States to understand that if this bill or a similar bill is passed by the present Congress, he will approve it, thereby quitclaiming these lands and restoring them to the States under their original boundaries where they were recognized to belong since the foundation of the United States of America; and Whereas every State in the Union has an interest in the submerged lands and especially does the State of Tennessee have 182,400 acres of submerged lands under the navigable streams and lakes in the State, which with the submerged lands under the Great Lakes and other navigable streams in the various States amount to 38,595,840 acres and the tidelands or marginal sea lands amount to 17,029,120 acres; and Whereas the enactment of this legislation, or similar legislation, has been endorsed by the following organizations: The Council of State Governments, the Governors Conference, National Association of Attorneys General, National Association of Public Land Officials, National Association of County Officials, National Conference of Mayors, American Association of Port Authorities, the American Bar Association, American Title Association, United States Chamber of Commerce, United States Junior Chamber of Commerce, National Water Conservation Association, American Municipal Association (representing 10,150 municipalities), and the National Institute of Municipal Law Officers: Now, therefore, be it Resolved by the Senate of the 78th General Assembly of Tennessee, as follows: 1. That the Senate of the State of Tennessee goes on record as urging the adoption of Senate Joint Resolution 13 pending in the Congress of the United States and introduced by Senator Holland, of Florida, and 39 other Senators, by which the title to these submerged lands beneath navigable waters within the States and adjacent to the States where they border on the oceans and Gulf of Mexico, will be confirmed and established as belonging to the States rather than to the Federal Government, subject, however, to the right of the Federal Government to control them in the interest of national defense, flood control, and navigation, as provided in said resolution. 2. Be it further enacted, that copy of this resolution be furnished to Hon. Spessard L. Holland, Senator from Florida, who is in charge of the effort to pass Senate Joint Resolution 13, for such use as he may see fit to use said resolution. Adopted March 11, 1953. JARED MADDUX, Speaker of the Senate. JOINT MEMORANDUM IN SUPPORT OF REHEARING IN UNITED STATES V. TEXAS By Joseph Walter Bingham, C. John Colombos, Gilbert Gidel, Manley O. Hudson, Charles Cheney Hyde, Hans Kelsen, William E. Masterson, Roscoe Pound, Stefan A. Riesenfeld, and Felipe Sanchez Roman PERSONAL DATA Joseph Walter Bingham: Chairman, the International Law Association Committee on Rights in the Sea Bed and Its Subsoil, American branch; professor of international law, Stanford University, 1907-44; author, Report on the International Law of Pacific Coastal Fisheries and numerous articles on international law. William W. Bishop, Jr.: Assistant to legal adviser, Department of State, 1939-47; legal adviser, United States delegation, Council of Foreign Ministers and Paris Peace *.ference, 1946: author, The Exercise of Jurisdiction for Special Purposes in High Sea Areas Beyond the Outer Limit of Territorial Waters, 1949. John Colombos: King's counsel; rapporteur, International Law Association's Committee on Neutrolity, 1924, 1926, 1928, and 1932: author, International Law of the Sea (1943), A Treatise on the Law of Price (3d ed., 1949), and other works on international law. Gilbert Gidel: Member of the Institute of International Law; president of the Curatorium of the Academy of International Law at The Hague; French delegate, 1930 Hague Conference for Codification of the Law of Territorial Waters; author, Le droit international tablie de la mer (The Public International Law of the Sea) (1932-34), 3 vols. (4th volume preparation) Manley O. Hudson: Member and first chairman, United Nations International Law Commission; Judge Permanent Court of International Justice, 1936 46: American adviser, 11930 Hague Conference for the Codification of International Law; Bemis professor of International Law, Harvard University, 1923 to present; author of over 300 articles and Dublications on international law. Charles Cheney Hyde: Former Solicitor of the Department of State under Secretaries Hughes and Kellogg: professor of international law and diplomacy, Columbia University, 1925-45; author, International Law Chiefly as Interpreted and Applied by the United States (2d rev. ed. 1945), 3 vols., and other works on international law; president of the American Society of International Law, 1946-49. Hans Kelsen: Legal adviser to the Austrian Government and draftsman of the Federal Constitution of Austria, 1919-22; member of the Constitutional Court of Austria, 1921 29: Author, General Theory of International Law (1934), General Theory of Law and the State (1944), and other works on international law and jurisprudence. William E. Masterson: Department of State consultant, 1944 47; adviser on research in international law, Harvard Law School, author, Jurisdiction in Marginal Seas (1929); co author. The International Law of the Future (1944), and author of numerous articles on international law, constitutional law, and jurisprudence. Roscoe Pound: Professor of Jurisprudence and dean of Harvard Law School, 1910-36; director of National Conference of Judicial Councils, 1938 to date; author of more than 850 books, articles, and addresses on jurisprudence, international law, constitutional law, etc. Stefan A. Riesenfeld: Professor of law, University of Minnesota, 1938 to date; special consultant, Board of Economic Warfare. 1942-43; author, Protection of Coastal Fisheries Under International Law (1942), and of numerous articles on international and comparative law in German and American legal periodicals. Felipe Sanchez Roman: Former member of the Permanent Court of Arbitration at the Hague; member of the Spanish National Academy of Jurisprudence and Legislation: legal adviser to Spanish and Mexican Governments; professor of civil law at the Central University of Madrid, 1916-36. JOINT MEMORANDUM Based upon our individual research and consideration of the pleadings, briefs, and evidentiary materials, each of us has prepared a separate memorandum opinion on the title to the lands and minerals underlying the Gulf of Mexico within the original boundaries of the State of Texas and the rules of international law applicable thereto. These memoranda were written at the request of the attorney general of Texas prior to the Court's decision of June 5, 1950. Without collaboration, each of us concluded: 1. The Republic of Texas, as an independent nation, had full sovereignty over and ownership of the lands and minerals underlying that portion of the Gulf of Mexico within its original boundaries 3 leagues from shore.' Under international law and under the domestic law adopted by the Republic of Texas, the ownership (dominium) of the subjacent soil and minerals was severable from the paramount governmental powers (imperium) employed in the original acquisition and in the regulation and control of commerce, navigation, defense, and international relations. 2. The transfer of national sovereignty and governmental powers relating to interstate and foreign commerce, navigation, defense, and international relations from the Republic of Texas to the United States in 1845 did not effect a transfer or relinquishment of the ownership of the lands and minerals above described. International law, as it existed in 1845, did not imply or require a cession of these proprietary rights with a transfer of national sovereignty. 3. The Republic of Texas, upon annexation, did not cede to the United States the ownership of the controverted 2,608,774 acres of lands and minerals within its original boundaries, but specifically retained this ownership under the terms of the agreement between the Republic of Texas and the United States. 4. A contrary position, first asserted by the United States 103 years after the international agreement of annexation, creates a dispute as to the meaning of the controlling documents. Under such circumstances either litigant should be entitled to present evidence bearing upon the intention of the contracting parties. 1 The 1st Congress of the Republic of Texas, on December 19, 1836, fixed the boundaries as follows: " beginning at the mouth of the Sabine River, and running west along the Gulf of Mexico three leagues from land, to the mouth of the Rio Grande (1 Laws, Republic of Texas, p. 133; 1 Gammel's Laws of Texas 1193-1194). 5. Available evidence of the status of international law, reflected by the customs, usages, and practices of nations in 1845 and since that date, will support the foregoing conclusions of fact and law. After studying the majority and dissenting opinions of June 5, 1950, each of us has written a separate memorandum directed to issues raised by the majority opinion which we respectfully submit require a rehearing and judgment for Texas or at least a trial on the evidence. In the interest of brevity, this joint memorandum is submitted as a summary of our individual opinions and of the evidence of relevant customs, usages, and practices of nations which we will develop fully if given the opportunity at a trial of the case on its merits. I In the first instance, the majority opinion in its concept of the nature of a nation's sovereignty over and ownership of marginal belt lands and minerals is not in harmmony with international law as it existed in 1845 and as it continues to exist at the present time. The majority has written: ** once low-water mark is passed the international domain is reached. Property rights must then be so subordinated to political rights as in substance to coalesce and unite in the national sovereign ***"2 There is no accepted authority in international law for this notion of "international domain." To the contrary, it may be said that customs, usages, and practices of nations in and since 1845 indicate complete agreement that the territorial marginal sea and its subjacent soil and resources within its boundaries are under the full sovereignty of the littoral nation, subject only to the accepted rules of "innocent passage" through the overlying waters. Under the international law as it existed in and since 1845, the "international domain" did not, and does not now, begin at the low-water mark of a littoral state. Vis-a-vis other nations, the area of a littoral state between low-water mark and the seaward limit of its marginal belt was and is in the same category as its inland waters, uplands, and other territory within its boundaries. As said by Wheaton in 1836: "Within these limits, its rights of property and territorial jurisdiction are absolute and exclude those of every other nation." Wheaton, Elements of International law (Philadelphia, 1836), 142–143. Sala wrote in 1845 that customs and usages of nations have "converted the sea as to this portion thereof into property no different than the lands occupied by them." Hautefeuille described territorial seas as under littoral state domain "in the same manner and by the same title as the land." Many writers term it a continuation of the continental territory. Olivart says "the jurisdiction of the state over its territorial sea is exclusive as it is over its land territory."* Among the jurists and publicists there is almost complete unanimity of opinion on this point.' It is respectfully urged that no matter what the United States may gain in this case by a holding that the Texas marginal sea is "international domain,” such gain could be far outweighed by the consequent gratuity to other nations. Implicit in the denomination of the area as "international domain" is the possibility of other nations having rights therein other than innocent passage through the waters. Spain, Mexico, France, England, Russia, and other nations can make no reasonable assertion of an interest in the oil and other minerals 270 S. Ct. at 924. The only limitation or exception is that by mutual consent and established practice there exists a right of "innocent passage" for ships of other nations. But as said by the Italian publicist, Scipione Gemma: "The limitations implied by the right of innocent passage of foreign vessels and by certain exemptions applicable to them in matters of civil and criminal local jurisdictions exercised by the coastal nations are not enough to consider the littoral sea as something different from the national territory." Gemma, Appunti di diritto internazionale (Bologna, 1923) 187. Sala, Sala Mexicana, o sea La Ilustración al Derecho Real de España (Mexico, 1845), vol. 2, p. 11. Hautefeuille. Des droits et des devoirs des nations neutres en temps de guerre maritime (Paris, 1848) 231. He continued: "There is continuous, complete, and absolute possession, as there might be of a river, a lake, or a piece of land territory" (p. 232). 1 Olivart, Tratado de Derecho Internacional Público (Madrid, 1903) 204. See "Summary of Available Opinions of Jurists and Publicists-1670-1950," pp. 18-50 of the Appendix to Brief for the State of Texas in Opposition to Motion for Judgment. See especially quotations from Molloy and Pufendorf (p. 18), Vattel (p. 19), Lampredi (p. 20), Rayneval (p. 21), Azuni and Schmalz (p. 22), Wheaton (p. 24). Cussy and Gardner (p. 27), Casanova (p. 29), Field (p. 30), Fiore and Martens (p. 31), PradierFodéré (p. 33), Hershey (p. 38), Fenwick and Möller (p. 43), Bustamante (p. 45), Gidel and Baldoni (p. 46). |