SUBMERGED LANDS FRIDAY, FEBRUARY 20, 1953 UNITED STATES SENATE, COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, Washington, D. C. The committee met at 10 a. m., pursuant to recess, in room 318 of the Senate Office Building, Senator Guy Cordon presiding. Present: Senators Hugh Butler, Nebraska (chairman); Eugene D. Millikin, Colorado; Guy Cordon, Oregon (presiding); George W. Malone, Nevada; Arthur V. Watkins, Utah; Henry C. Dworshak, Idaho; Thomas H. Kuchel, California; Frank A. Barrett, Wyoming; James E. Murray, Montana; Clinton P. Anderson, New Mexico; Russell B. Long, Louisiana; George A. Smathers, Florida; and Price Daniel, Texas. Present also: Senator Spessard Holland, Florida; and Representative Edwin E. Willis, Louisiana. Present also: Kirkley S. Coulter, chief clerk; N. D. McSherry, assistant chief clerk; and Stewart French, staff counsel. Senator CORDON. The committee will come to order. At this point there will be inserted in the record a memorandum by District Attorney L. H. Perez of Plaquemines Parish, La., with respect to the proposed legislation. (The memorandum referred to is as follows:) MEMORANDUM BY DISTRICT ATTORNEY L. H. PEREZ OF PLAQUEMINES PARISH, LA., WITH RESPECT TO PROPOSED LEGISLATION TO CONFIRM AND ESTABLISH THE TITLES OF THE STATES TO LANDS BENEATH NAVIGABLE WATERS, AND TO SUCH WATERS, WITHIN STATE BOUNDARIES, FIXED FOR HEARING BEFORE THE UNITED STATES SENATE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS ON FEBRUARY 16, 1953 This memorandum is in support of the right and title of the States to their lands beneath navigable waters, and to such waters, within historic State boundaries, in accordance with the purpose of Senate Joint Resolution 13. The question of title to navigable waters and the submerged lands under them in this country requires consideration of their historic ownership and laws pertaining thereto, and what the United States Supreme Court, in scores of cases over a century and a quarter, adjudicated to be the settled rule of law applicable thereto. ORIGIN OF TITLES The title to all lands and waters in this country originated by discovery in the name of the Spanish, British, and French Crowns. ORIGINAL STATES The Thirteen Original States came out of British colonial grants and the historic title of such property public by nature, such as the rivers, the seas and their shores within the Original States, was governed by the old common law.1 Martin v. Waddell ((1842), 16 Peters 367); Shively v. Bowlby ((1894), 152 U. S. 1, 14). LOUISIANA TERRITORY The Louisiana Territory, out of which several States were created, was acquired originally by France, then ceded by France to Spain and by Spain back to France, and by France to the United States, in the condition in which it was in Spain and as France held the same in 1803. Therefore, the ancient laws of France and Spain controlled the historic title of submerged lands and navigable waters in that area. TEXAS AND WESTERN STATES The territory out of which the States of Texas, west to California developed were originally discovered and held by Spain and partly by France, with conflicting claims to parts thereof which were settled by treaties. Therefore, the historic titles of that area which composed practically the balance of the States of the Union were controlled by the old Spanish and French laws.3 The laws relating to navigable waters and the soils under them, were the same under the old common law, Spanish and French laws, as has been confirmed by review and decision of the United States Supreme Court as occasion presented. The Court cited approvingly from the old British common law that, as to the navigable waters and the sea on the coasts within the jurisdiction of the British Crown, that the King was the owner of this great coast, and held the lands under these waters as a public trust for the benefit of the whole community, and that this dominion and propriety was held by him as a prerogative right, associated with the powers of government.* Likewise, the Court cited approvingly from the old Spanish and French laws that property public by nature, such as the rivers, the seas, and their shores, was held by the Crown in trust for the common use of the people; that they were not a part of the public domain, or Crown lands, which the King could sell and convey." TITLE OF ORIGINAL STATES The Court held repeatedly that it was settled jurisprudence in this country that upon the settlement of the Colonies, the rights passed to grantees in the royal charters in trust for the communities to be established. That when the Revolution took place the people of each State became themselves sovereign, and in that character hold the absolute right to all their navigable waters and the soils under them for their own common use, and the prerogatives and regalities which had belonged either to the Crown or the Parliament became immediately and rightfully vested in the States. This fact was confirmed by the Treaty of Independence with the British Crown in 1783, following the successful Revolutionary War, which provided that the British Crown recognized each of the Thirteen Original States as free, sovereign, and independent States and treated with them as such and reliquished all claims to the Government, proprietary and territorial rights of the same and every part thereof." The Court held that by the treaty which concluded the war of our Revolution Great Britain relinquished all claim, not only to the Government but to the proprietary and territorial rights of the United States; and the powers of government and the right to soil which had previously been in Great Britain passed definitely to these States; and that there was no territory within the United States that was claimed in any other right than that of some one of the Confederate States; therefore, there could be no acquisition of territory within the area of the Original States made by the United States distinct from or independent of some one of the States.' Upon adoption of the United States Constitution in 1789-6 years later-the Original States reserved their property right, territorial jurisdiction, and sovereignty over their rivers, their seas, and their shores, subject only to the para 2 See map attached, p. 10. New Orleans v. United States ((1836), 10 Peters 662). 4 Martin v. Waddell ((1842) 16 Peters 367); Shively v. Bowlby, footnote I above. New Orleans v. United States, footnote 3 above. Johnson v. McIntosh ((1823), 8 Wheat. 543, 584): Harcourt v. Gaillard ((1827), 12 Wheat. 523); Martin v. Waddell. footnote 1 above; Pollard v. Hagan ((1845), 3 How. 212); Mumford v. Wardwell ((1867), 6 Wall. 423): Morris v. United States ((1898), 174 U. S. 196); Shively v. Bowlby, footnote 1 above; Massachusetts v. New York ((1926), 271 U. S. 65. 85-86). Johnson v. McIntosh, Harcourt v. Gaillard, footnote 6 above. it right of navigation, the regulation of which in respect to foreign and terstate commerce were granted to the United States.* NO „KANT OF TITLE TO UNITED STATES-TITLE IN TRUST FOR States later ADMITTED As repeatedly held by the Court, it was the settled rule of law that the naviwaters and the soils under the same in the Original States were not granted - Constitution to the United States, but were reserved to the several States, ad hat the new States since admitted have the same rights, sovereignty, and estetion in that behalf as the Original States possessed within their respective oners, because "upon the acquisition of territory by the United States, whether Mi cession from one of the States or by treaty with a foreign country or by Ls very and settlement, the same title and dominion over lands under navigable waters and the soils under them passed to the United States in trust for the veral States to be ultimately created out of the territory."" SAME OWNERSHIP BY GREAT LAKE STATES The Court held that the same doctrine is in this country held to be applicable te alus covered by fresh water in the Great Lakes, because these lakes possess all » «neral characteristics of open seas, except in the freshness of their waters, # n the absence of the ebb and flow of the tide; and "there is no reason or je...ple for the assertion of dominion and sovereignty over and ownership by State of lands covered by tide waters that is not equally applicable to its abership of and dominion and sovereignty over lands covered by the fresh woners of these lakes," " and that the same principle of State ownership applies to aid navigable waters within the States." ALL STATES SAME Ne Court further held, "There can be no distinction between the several "a"-s of the Union in the character of the jurisdiction, sovereignty and do on which they may possess and exercise over persons and subjects within tr respective limits." 12 So, there is no State in the Union in any "separate category" with respect to •L.- 8.! ject. “PUBLIC LANDS" DO NOT INCLUDE "SUBMERGED LANDS” T'e term "public lands" did not include tide lands or submerged lands under any navizable waters in this country, because public lands are habitually used our legislation to include only those subject to sale or disposal under our pral laws,** Grants by Congress of portions of the public lands within a territory to setters thereto, though bordering on or bounded by navigable waters, convey, of their own force, no title or right below high-water marks, and do not impair the *.te and dominion of the future State when created; but leave the question of the te of the shores by the owners of uplands to the sovereign control of each State, sugest only to the rights vested by the Constitution in the United States for the regulation of navigation and interstate and foreign commerce. The nature and *M-Cready v. Virginia ((1877), 94 U. S. 291); Shively v. Bowlby, footnote 1 above; Ma v. I nited States ((1898), 174 U. S. 196); Seattle v. Oregon & Washington R. R, Co. **7201, 255 U. 8. 56). New Orleans v. U. S. ((1836), 10 Peters 662) Pollard v. Hagan, footnote 6 above; Gottstle v. Kibbe ((1850), 9 How. 471); Mumford v. Wardwell, footnote 6 above: Weber State Harbor Commissioners ((1873), 85 U. §. 57); St. Clair v. Lovingston ((1874), 23 質 461 - San Francisco v. Le Roy ((1890), 138 U. S. 656); Knight v. United Land Assn. 1891). 142 U. S 161); I. C. R. R. Co. v. Illinois ((1892), 146 U. S. 387); Shirely v. why, footnote 6 above; The Abbe Dodge v. U. 8. ((1811), 223 U. S. 166): Port of settle y Oregon & Wash, R. R. Co. ((1920), 255 U. S. 56); United States v. Holt State Park (1925), 270 U. S. 54): United States v. Utah ((1930), 283 U. S. 64); Boraz fisiol dated v. Los Angeles ((1935), 296 U. S. 10); Hynes v. Grimes Packing Co. ((1949), LET 8 $6). IRR. Co. v. Illinois, footnote 9 above. · Hallett v Beebe ((1851), 13 How. 25); Smith v. Maryland ((1855), 18 How. 11); Giman V Philadelphia ((1863), 70 U. S. 713); Barney v. Keokuk ((1876), 94 U. S. 324); Wendy v Virginia ((1876), 94 U. S. 391); Sands v. Manistee River Imp. Co. ((1887), 12 8 288); Mobile v. Kimball ((1880) 102 U. S. 691); Morris v. United States ((1898) 174 TS 196). · House ▼, Glover ((1886) 119 U. S. 543); I. C. R. R. Co. v. Illinois, footnote 10 above; Rodgers ((1893) 150 U. S. 247). Boraz Consolidated V. Los Angeles, footnote 9 above; Mann v. Tacoma ((1893), 153 CS 271). extent of the rights of a State and of riparian owners in navigable waters within the State and to the soil beneath them are matters of State law. A compilation of United States Supreme Court decisions, all holding for State ownership of their submerged lands, or tidelands, is shown by appendix annexed. Congress has not undertaken by general laws to dispose of submerged lands under navigable waters in any territory of the United States." IN 1949, UNITED STATES SUPREME COURT AFFIRMED ACT OF CONGRESS PROVIDING FOR STATE OWNERSHIP OF TIDELANDS To the contrary, recognizing the well settled rule of law in this country, that the United States held title to navigable waters and the soils under them in any territory which it might acquire, in trust for any State to be ultimately created out of such territory, the Congress of the United States passed an act on May 14, 1898, 30 Stats. 409, in which it was provided as follows: "That nothing in this Act contained shall be construed as impairing in any degree the title of any State that may hereafter be erected out of said District. or any part thereof, to tide lands and beds of any of its navigable waters, or the right of such State to regulate the use thereof, nor the right of the United States to resume possession of such lands, it being declared that all such rights shall continue to be held by the United States in trust for the people of any State or States which may hereafter be erected out of said district. The term 'navigable waters,' as herein used, shall be held to include all tidal waters up to the line of ordinary high tide and all nontidal waters navigable in fact up to the line of ordinary high-water mark." Strange as it may seem, the United States Supreme Court, composed of the same membership in 1949, 2 years after their decision in the California tideland case, referred approvingly to the above legislation, and cited in support of its opinion therefor the case of Knight v. United Land Association (142 U. S. 161), in which the Court said: "Upon the acquisition of the territory from Mexico the United States acquired the title to tidelands equally with the title to upland; but with respect to the former they held it only in trust for the future States that might be erected out of such territory." In contrast with all these, and other decisions of the United States Supreme Court, holding that every State of the Union is the absolute owner of its submerged lands under navigable water, and all navigable waters within its boundaries, subject only to the paramount right of navigation, the regulation of which in respect to foreign and interstate commerce granted to the United States in the Constitution compare the crux of the Court's decision in the case of United States v. California ((1947), 67 S. Ct. 1658), followed in the Texas and Louisiana cases in 1950, that: "The United States here asserts rights in two capacities transcending those of a mere property owner. In one capacity it asserts the right and responsibility to exercise whatever power and dominion are necessary to protect this country against dangers to the security and tranquility of its people, incident to the fact that the United States is located immediately adjacent to the ocean. Government also appears in its capacity as a member of the family of nations." (P. 1663 *** *.) The "And insofar as the Nation asserts its rights under international law, whatever of value may be discovered in the seas next to its shores and within its protective belt, will most naturally be appropriated for its use." (P. 1666.) Following this line of reasoning (?) the Court concluded that the United States had "paramount rights in, and full dominion and power over, the lands, minerals, and other things underlying the Pacific Ocean," within California's 3-mile belt. The Court did observe, however, that they could not assume that Congress would execute its constitutional powers in such way as to bring about injustices to States. Congress has twice enacted legislation to recognize the title of the States to their submerged lands within their boundaries, in keeping with the well-settled rule of law in this country prior to these last three Court decisions. It is respectfully submitted that Senate Joint Resolution 13, introduced by 14 Wear V. Kansas ((1917) 245 U. S. 154); Independence Coal & Coke Co. v. United States ((1926) 274 U. S. 640); Archer v. Greenville Sand & G. Co. ((1913) 233 U. S. 60); S. v. Holt State Bank ((1925) 270 U. S. 47). Senator Holland, of Florida, for himself and 39 other Senators, should be enacted into law, after minor clarifications, to restore the status quo ante attempted nationalization of State and other properties in this country. APPENDIX The following is a partial list of United States Supreme Court decisions in which the principle of State ownership of lands beneath tidal and navigable waters has been upheld: TIDELANDS Johnson v. McIntosh (1823), 8 Wheat. 583 (Virginia-All waters within territorial boundary). Harcourt v. Gaillard (1827), 12 Wheat. 523 (Georgia and South CarolinaInland and maritime waters within boundary). New Orleans v. United States (1836), 10 Pet. 662 (Louisiana-The rivers, the seas, and their shores within State boundary). Martin v. Waddell (1842), 16 Pet. 367 (New Jersey-Raritan Bay). Pollard's Lessee v. Hagan (1845), 3 How. (44 U. S.) 212, 229, 230 (AlabamaMobile Bay-United States patent held invalid). Goodtitle v. Kibbe (1850), 9 How. (50 U. S.) 471, 478 (Alabama-Shore of a navigable tidewater river). Smith v. Maryland (1855), 18 How. (59 U. S.) 71, 74 (Maryland-Soil below low-water mark in the Chesapeake Bay). Withers v. Buckley (1857), 20 How. 84 (Mississippi-Mississippi River). Mumford v. Wardwell (1867), 6 Wall. (73 U. S.) 423, 435, 436 (CaliforniaNavigable waters and soil under same). Weber v. Board of Harbor Commissioners (1873), 18 Wall. (85 U. S.) 57, 65, 66 (California-"Shore of the sea, and of the arms of the sea"). McCready v. Virginia (1876), 94 U. S. 391, 394, 395 (Virginia-Oyster beds in tidewaters). Manchester v. Massachusetts (1890), 139 U. S. 240, 259, 260 (MassachusettsBuzzard's Bay). San Francisco v. LeRoy (1891), 138 U. S. 656, 670-672 (California-Tidelands, San Francisco Bay). Knight v. U. S. Land Association (1891), 142 U. S. 161, 183, 201 (CaliforniaSan Francisco Bay). Mann v. Tacoma Land Co. (1893), 153 U. S. 271 (Washington-Commencement Bay). Shively v. Bowlby (1894), 152 U. S. 1, 57, 58 (Oregon-Tidelands at mouth of Columbia River). Mobile Transportation Co. v. Mobile (1903), 187 U. S. 479, 482 (Alabama-Mobile River). United States v. Mission Rock Co. (1903), 189 U. S. 391, 404 (California-Submerged as well as tidelands, San Francisco Bay). Louisiana v. Mississippi (1905), 202 U. S. 1 (Louisiana and Mississippi—Maritime belt in States' boundaries). The Abby Dodge (1912), 223 U. S. 166 (Florida-Sponge beds in Gulf of Mexico). Greenleaf Lumber Co. v. Garrison (1913), 237 U. S. 251, 259 (Virginia-Elizabeth River). Port of Seattle v. Oregon & W. R. R. Co. (1921), 255 U. S. 56, 63 (Washington— Port of Seattle). Foster-Fountain Packing Co. v. Haydel (1928), 278 U. S. 1 (Louisiana-Bays and Gulf). Boraz Consolidated v. City of Los Angeles (1935), 296 U. S. 10, 15, 16 (California-Tidelands, San Pedro Bay). United States v. O'Donnell (1938), 303 U. S. 501, 519 (California-San Francisco Bay). Illinois Central v. Illinois (1892), 146 U. S. 387 (Illinois-Shores and submerged lands, Lake Michigan). U. S. v. Rodgers (1893), 150 U. S. 247. Massachusetts v. New York (1926), 271 U. S. 65 (New York-submerged lands, Lake Ontario). 30045-53--20 |