STATE OWNERSHIP OF LANDS UNDER INLAND WATERS AFFIRMED IN MARGINAL SEA DECISIONS It is fundamental that no "tidelands, inland waterways, navigable streams or States rights," are included in the Supreme Court decision. Time and again the advocates of the quitclaim legislation have raised the specter of a vast scheme on the part of the Federal Government, proceeding under the authority of the marginal sea cases, to seize without compensation anything within the boundaries of any State that the Federal Government wanted, and that the Supreme Court might say that the national interest required. I have always been inclined to believe that these arguments were raised in order to disguise the purpose of 3 States which will benefit greatly by State ownership, to frighten the other 45 States into making them a present of these immensely valuable resources that belong to all the people of the United States. Certainly it does not follow from the fact that the Supreme Court in the California cases refused to extend out into the ocean rule of State ownership of inland waters, exemplified in Pollard's Lessee v. Hagan (44 U. S. 212), that the inland-water rule has been impaired or discredited in the slightest degree. Quite on the contrary, the Court recognized the continued force and existence of the inland-water rule as applied within the boundaries of the respective States. Thus the Supreme Court in the California decision expresses its conception of the doctrine of the Pollard case (332 U. S. 19, 30), as follows: "In the Pollard case it was held, in effect, that the original States owned in trust for their people the navigable tidewaters between high- and low-water mark within each State's boundaries, and the soil under them, as an inseparable attribute of State sovereignty." The question before the Supreme Court in the California case was not whether the rule of the Pollard case should be abandoned, or impaired, or even qualified. The question was, as the Supreme Court itself said, whether the rule of the Pollard case this rule of State ownership of tidelands and inland watersshould be extended beyond tidelands and out into the open sea. The Court on page 36 of the California case (332 U. S. 19, 36), while recognizing the continuing force of the Pollard rule, refused so to extend it in the following statement: "Consequently, we are not persuaded to transplant the Pollard rule of ownership as an incident of State sovereignty in relation to inland waters out into the soil beneath the ocean, so much more a matter of national concern." So to me it is perfectly plain that the Supreme Court in the California case, far from impairing or overruling the Pollard rule of State ownership of inland waters, recognized and reaffirmed the doctrine of that case; but refused to extend it to an area to which it had never-in spite of the dicta upon which California relied-been applied in any case involving the question of the ownership of the marginal sea. The quitclaim advocates have repeatedly stated their unalterable opposition to any proposed legislation which would merely confirm the rule of the Pollard case, and vest in the States title to all State lands which would have qualified as such under the principle of the Pollard case, at the time of the Supreme Court's decision in United States against California. Why are they so strongly opposed to legislation that would completely and for all time remove the very apprehension upon the basis of which they urge the necessity of quitclaiming not merely the inland waters, but also the marginal sea oil to the three States of California, Texas, and Louisiana? By a quitclaim measure merely confirming State ownership under the principles of the Pollard case, they would be afforded a complete and final protection against the very thing they claim most to fear, and yet they have consistently and even violently rejected it. It is to be noted above all else that such a measure would not operate as a protection and a benefit to 3 States merely, but it would operate to the benefit, actual or supposed, of all 48 States. Yet they reject it and insist, upon some line of reasoning that I cannot follow, and that I challenge anyone to follow, that the way to remove this supposed threat to the property of all the States, is not merely to remove it specifically by legislation, but in addition for 45 States to deed away their oil property in the ocean solely to the enrichment of the 3 Coastal States which lie adjacent thereto. To me this situation speaks so strongly for itself that I cannot see that further comment is called for. There is, of course, no question that the Congress can deed or transfer the publicly owned sea bottom lands, seaward from the mean low tide, to the contiguous States as well as any of the publicly owned land within the public land States--but certainly no State can claim a right to such transfer. STATE OWNERSHIP OF THE LANDS UNDER THE GREAT LAKES IS CONFIRMED There is no basis for the claims that the Supreme Court decision affects any inland waters including the Great Lakes-in fact the reverse is true--because the decisions in the sea bottom lands cases establish even more firmly that the States own the land under their inland navigable waters. The proponents of the quitclaim legislation claim that the United States under the Supreme Court sea bottom lands decisions now have the authority to go out and seize the lands underlying the Great Lakes. For this proposition there has been cited the case of Illinois Central Railroad Co. v. Illinois (146 U. S. 387). It is said that this case holds that the Great Lakes are like the open seas and not like inland waters. From this, as I gather, it is to be inferred that the Supreme Court will next say that the Great Lakes are not like the State-owned tidelands whose status is governed by the Pollard rule which the Supreme Court expressly recognized and reaformed in the California case, but, on the contrary, are like the sea bottom lands under the marginal sea, which the Court in the same decision said is subject to the paramount rights of the United States. But on its face, as clearly as language could possibly express it, the Illinois decision states just the opposite position, namely, that the Great Lakes are governed by the Pollard rule, and are owned by the States just as fully as any State owns its tidelands. I am in fact greatly surprised that such a contention should have been advanced before the committee. I have carefully considered the language of the Supreme Court in this Illinois decision, and I have obtained the views of several able lawyers as to the Supreme Court's holdings in that case. Without exception their views have concurred with my own, and I have coneluded not only that the Illinois decision squarely decides that it is the States, and not the Federal Government, that own the bottom of the Great Lakes, but also that this ownership arises by virtue of the force and application of the rule of the Pollard case. In my opinion, the contention I am considering is refuted and entirely disposed of by the following statement of the Supreme Court appearing at pages 434-435 of the Illinois decision: "The State of Illinois was admitted into the Union in 1818 on an equal footing with the original States in all respects. The boundaries of the States were prescribed by Congress and accepted by the State in its original constitution. They are given in the bill. It is sufficient for our purpose to observe that they include within their eastern line all that portion of Lake Michigan lying east of the main land of the State and the middle of the lake "It is the settled law of this country that the ownership of and dominion and sovereignty over lands covered by tidewaters, within the limits of the several States belong to the respective States within which they are found. This doctrine has been often announced by this court, and is not questioned by counsel of any of the parties. Pollard v. Hagan, 44 U. S. 212, 3 How. 212. "This same doctrine is in this country held to be applicable to lands covered by fresh water in the Great Lakes over which conducted an extended commerce with different States and foreign nations. These lakes possess all the general characteristics of open seas, except in the freshness of their waters, and in the absence of the ebb and flow of the tide. In other respects they are inland seas, and there is no reason or principle for the assertion of dominion and sovereignty over and ownership by the State of lands covered by tidewaters that is not equally applicable to its ownership of and dominion and sovereignty over lands covered by the fresh waters of these lakes.” [Italics supplied.] NO STATES' RIGHTS INVOLVED There are no States' rights involved in this controversy concerning the sea bottom lands of the marginal sea. In the course of the hearings and of previous debates, both this year and in past years, I have heard bandied about a great many references to States' rights and many implications and assertions that the Supreme Court's decisions in the 30045-53-59 submerged lands cases stood in violation of the provisions of the 10th amendment of the Constitution. The 10th amendment, of course, provides "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." While I do not profess to be an authority on constitutional law, this argument which, as I understand it, is apparently to the effect that the Supreme Court by its decisions in the submerged lands cases unlawfully invaded States' rights in violation of the 10th amendment, and in my judgment these statements are without foundation. The Supreme Court in the California decision (332 U. S. 19, 37) said that "*** It [the question of ownership of the sea bottom lands] is squarely presented for the first time." It is also established that the statute of limitations does not run against the Government-therefore when the Court said that "California is not the owner of the 3-mile marginal belt along its coast" (U. S. v. California, 332 U. S. 19, 29– 39) it declared that California had no interest in the sea bottom lands and no right could be established by virtue of prior claims. Chief Justice Hughes, I am told, once said that the Constitution is what the Supreme Court says it is, and certainly no truer words have ever been spoken. The Supreme Court in the California case said that, since the States had by the Federal Constitution delegated to the National Government exclusive powers in the fields of war, commerce, and international affairs, the proper exercise of those exclusive functions, under the Constitution, required that the Federal Government, and not the States, have paramount rights in the marginal sea. And inasmuch as these constitutional powers have been delegated by the States to the National Government with respect to these marginal sea lands, these powers are expressly excepted by the terms of the 10th amendment itself from the reservations of power which are preserved to the States thereby. In the light of these undeniable considerations, I must confess that I am unable to follow their reasoning when they say that the Supreme Court went counter to the 10th amendment. SEA BOTTOM LANDS ARE "PUBLIC LANDS" Many of the proponents of quitclaim legislation and former members of the Departments of Justice and Interior claim that the sea bottom lands under the marginal sea are federally owned but are not "public lands." The former Solicitor for the Department of the Interior took the position that the National Oil and Gas Leasing Act of 1920 applies to "public lands," but that it does not apply to the federally owned sea bottom lands because those lands do not qualify as "public lands." On that basis the Department of the Interior has refused to grant permits to applicants under the Oil and Gas Leasing Act, and has denied the application of those who have filed for prospecting permits and leases under that act. These lands could be leased under the Oil and Gas Leasing Act now if it were not for what I consider erroneous opinions given by members of the previous administration. The case of Hynes v. Grimes Packing Co. (337 U. S. 86) decided by the Supreme Court of the United States on May 31, 1949, has come to my attention, and I believe that the decision definitely and finally determines that the land under the marginal sea is "public land." The issue in that case was whether certain Indians in Alaska had the right to fish for salmon in the marginal sea off the Alaska coast. The existence of this right depended upon whether the marginal sea lands were covered by a statute, the body of which specifically declared that it should apply to the "public lands" of the United States in accordance with the explicit requirements of the statute under which the rights of the Indians were claimed. The material part of the statute in question (S. 2 of the act of May 1, 1936, 49 Stat. 1250, sec. 337 U. S. 86, 91) provided: "SEC. 2. That the Secretary of the Interior is hereby authorized to designate as an Indian reservation any area of land which has been reserved for the use and occupance of Indians or Eskimos *** together with additional public lands adjacent thereto, within the Territory of Alaska, or any other public lands which are actually occupied by Indians or Eskimos within said Territory * * Here, then, was a measure which by its own plain and explicit terms was stated by the Congress to be applicable to "public lands" of the United States. The Supreme Court reversed a decision of the circuit court of appeals which had held that the statute did not apply to the marginal sea lands by reason of the “public lands” limitation in the text of the act. in reversing the court of appeals, the Supreme Court held, exactly to the contrary, that this statute, applicable to "public lands" does apply to the marginal sea. Unless it is to be argued that the two situations are different because one involves oil, and the other involved fish, I see no escape from the conclusion that the marginal-sea lands, wherever situated, are "public lands" under the authority of the Supreme Court's decision in this case of Hynes v. Grimes Packing Co. VESTED RIGHTS MUST BE PROTECTED The point has been raised and statements made to the effect that there is no need for an amendment to the proposed legislation before this committee, because vested rights could not be destroyed by legislation. The former Senator Burton K. Wheeler's testimony before this committee very ably explained why a saving clause is necessary. I join with Senator Wheeler in his statement that such a provision is necessary and that the congressional precedent in safeguarding such rights is both necessary and customary-when he said: "At previous hearings I have been asked, since vested rights cannot in any event be destroyed by legislation, why I nevertheless am asking for a specific saving clause in the bill to protect those rights. While from the academic standpoint of abstract theory that might be a good question, yet anyone who has had practical experience as a lawyer must know that where a piece of legislation sets about to destroy vested rights, the chances of the people affected to have their rights vindicated in judicial proceedings are often jeopardized and very unfairly prejudiced. As a practical matter, these people will have to overcome both the presumption which the courts say exists in favor of the constitutionality of all acts of Congress, and the reluctance of the courts to apply this drastic remedy which would nullify a congressional enactment in order to save private rights which enjoy the higher protection of the Constitution. Now I have no doubt that these applicants would ultimately succeed in having this legislation stricken down on that basis; but I only say that failure to include a saving clause protecting their rights will impose upon them an unfair and entirely unnecessary burden in the courts." As a practical matter I believe this committee, which has spent so much time and effort to hear all sides of this controversy, should take every precaution to protect its own legislation from attack on the grounds of constitutionality. Historically it has been the policy of Congress to protect prior rights and claims whenever disposition was made of lands and mineral deposits belonging to the United States, In at least 19 acts of Congress, vested rights were specifically protected. In the Mineral Leasing Act itself prior claims were protected in section 37 of that act. As another example when the Congress passed the Acquired Lands Act of August 7, 1947, it inserted a savings clause which not only protects all prior rights but even went so far as to reinstate any valid applications filed on such lands under the Oil and Gas Leasing Act of 1920. Inasmuch as the policy of Congress has been to include a savings clause in its acts in making disposition of lands with mineral deposits, I see no reason why that policy should now be changed. GRANT OWNERSHIP OF MINERALS TO ALL THE STATES Mr. Chairman, it has long been the policy of the Federal Government in its disposition of public lands to withhold rights in the subsoil containing known mineral deposits. For the benefit of the record I wish to include as part of this statement a letter from Mr. William Pincus, Assistant Director of the Bureau of Land Management of the Department of Interior, setting forth this well-established policy. DEPARTMENT OF THE INTERIOR, Hon. GEORGE W. MALONE, United States Senate, Washington 25, D. C. MY DEAR SENATOR MALONE: You have asked for a brief statement outlining the conditions under which minerals are reserved by the United States in grants of land made under acts of Congress. |