UNITED STATES v. CALIFORNIA(1965)
The United States brought this suit in 1945 against California to determine dominion over the submerged lands and mineral rights under the three-mile belt of sea off the California coast. In 1947 this Court held ( 332 U.S. 19 ) that the United States possessed paramount rights in such lands and minerals underlying the Pacific Ocean seaward of the low-water mark on the California coast and outside of inland waters. Thereafter the Court appointed a Special Master to determine for specific coastal segments the line of ordinary low water and the outer limit of inland waters. In his Report, filed in 1952, the Master based his definition of inland waters on that applied by the United States in its foreign relations as of the date of the 1947 decree. Both parties noted exceptions to the Report, but before any further action, the Submerged Lands Act was enacted in 1953. This Act gave the States ownership of the lands beneath navigable waters within their boundaries, including the seaward boundaries "as they existed at the time such State became a member of the Union," but in no event to be interpreted as extending from the "coast line" more than three geographical miles into the Pacific Ocean. "Coast line" was derivatively defined in terms of the seaward limit of "inland waters," a term not defined by the Act. No action was taken on the Master's Report until 1963, when the United States filed an amended complaint reviving the Report and redescribing the issues as modified by the Submerged Lands Act. The United States contends that the Act simply moved the line out three miles from the line established by the 1947 decree, while California asserts that "inland waters" as used in the Act means not what the United States would claim as such in international relations but what the States historically considered to be inland when they joined the Union. Held:
Solicitor General Cox argued the cause for the United States. With him on the briefs were Stephen J. Pollak, George S. Swarth and Martin Green.
Richard H. Keatinge, Special Assistant Attorney General of California, argued the cause for defendant. With him on the briefs were Thomas C. Lynch, Attorney General, Stanley Mosk, former Attorney General, Charles E. Corker, Howard S. Goldin and Jay L. Shavelson, Assistant Attorneys General, and Warren J. Abbott and N. Gregory Taylor, Deputy Attorneys General.
George N. Hayes, Special Assistant Attorney General of Alaska, by special leave of Court, argued the cause for the State of Alaska, as amicus curiae. With him on the brief were Warren C. Colver, Attorney General, and Avrum M. Gross, Special Assistant Attorney General.
John B. Ogden filed briefs for Carl Whitson, as amicus curiae. [381 U.S. 139, 142]
MR. JUSTICE HARLAN delivered the opinion of the Court.
The present case requires us to determine the extent of submerged lands granted to the State of California by the Submerged Lands Act of 1953, 1 and in particular to declare whether specified bodies of water on the California coast are "inland waters" within the meaning of that Act. A substantial amount of background is necessary to place the issues in perspective.
The Submerged Lands Act 7 grants to the States "title to and ownership of the lands beneath navigable waters [381 U.S. 139, 146] within the boundaries of the respective States." 3 (a). "Boundaries" includes the seaward boundaries of a State "as they existed at the time such State became a member of the Union, or as heretofore approved by the Congress," but subject to the limitation that
In a later measure related to the Submerged Lands Act, Congress declared that the United States owned all submerged land in the continental shelf seaward of the lands granted to the States. Outer Continental Shelf Lands Act, 67 Stat. 462, 43 U.S.C. 1331 et seq.
The passage of the Submerged Lands Act marked the beginning of a long halt in the proceedings in this case. Depth of California's coastal waters increases very rapidly, and as of May 22, 1953, the date of enactment, it was impractical to drill for oil except close to the shore. By granting to California the mineral rights in the three-mile belt, the Act vested in California all the interests that were then thought to be important, and no further action was taken on the Special Master's Report. That Report was neither adopted, modified, nor rejected [381 U.S. 139, 149] by this Court, but was simply allowed to lie dormant. By 1963, however, drilling techniques had improved sufficiently to revitalize the importance of the demarcation line between state and federal submerged lands. The United States filed an amended complaint reviving the Special Master's Report and redescribing the issues as modified by the Submerged Lands Act; both the United States and California filed new exceptions to the Report, and the case is now ready for decision.
The basic contention of the United States is that the Act simply moved the line of demarcation out three miles from the line established by the California decree. Therefore, contends the United States, the Special Master's Report on the line of ordinary low water and the outer limit of inland waters as used in the California decree is just as relevant now as it was before Congress acted, and, with slight modifications, the line drawn by the Special Master should be taken as the "coast line" for purposes of the Submerged Lands Act. California asserts that whereas the Special Master determined inland waters to be those which the United States would have claimed as such for purposes of international relations, the Submerged Lands Act used the term in an entirely different sense to mean those waters which the States historically considered to be inland - in California's case, those waters which the State considered to be inland at the time it entered the Union. Therefore, according to California, the line drawn in the Special Master's Report was determined under standards wholly foreign to the Submerged Lands Act.
The focal point of this case is the interpretation to be placed on "inland waters" as used in the Act. Since the Act does not define the term, we look to the legislative history. [381 U.S. 139, 150]
(1) As first written, the bill defined inland waters to include
(2) The bill originally contained no limitation on the extent of historic boundaries that could be claimed. The provision limiting the extent of boundary claims to no more than three geographical miles from the coastline on the Atlantic and Pacific Oceans and three marine leagues on the Gulf of Mexico was added to the bill on the floor of the Senate in the late stages of the debates. 10
Removal of the definition for inland waters and the addition of the three-mile limitation in the Pacific, when taken together, unmistakably show that California cannot prevail in its contention that "as used in the Act, Congress intended inland waters to identify those areas which the states always thought were inland waters." 11 By deleting the original definition of "inland waters" [381 U.S. 139, 151] Congress made plain its intent to leave the meaning of the term to be elaborated by the courts, independently of the Submerged Lands Act.
In response to substantial objections made in the hearings to the original bill's broad definition of inland waters on grounds that it would prejudice and limit the position which the United States could take in its future conduct of foreign affairs, 12 Senator Cordon, the manager of the bill, recommended and obtained elimination of the definition. The Committee Report which he authored explained:
Reference to Senator Cordon's request to the Senate Committee for deletion of the objectionable clause confirms that understanding. He said:
If such a view of the bill's purpose is accepted as of the time that the Committee Report was written, there is, nonetheless, no inconsistency whatsoever between that [381 U.S. 139, 154] purpose and a legislative intent to leave the definition of inland waters to the courts without restriction; at that time the limitation on boundary claims had not yet been incorporated into the Act; thus as the Act was then written, States could have claimed all submerged lands within their historic boundaries, no matter how "inland waters" was defined. The definition would have affected only those States which, not having adequate pre-existing seaward boundaries, chose to extend their boundaries three miles from the coastline pursuant to 4 of the Act. As stated by Senator Cordon during the Hearings.
The Special Master found that there was no internationally accepted definition for inland waters and decided, in those circumstances, that it was the position which the United States took on the question in the conduct of its foreign affairs which should be controlling. He considered the relevant date on which to determine our foreign policy position to be the date of the California decree, October 27, 1947. He therefore rejected the assertion that letters from the State Department written in 1951 and 1952 26 declaring the then present policy of the United States were conclusive on the question before him. At the same time that decision required the Special Master to consider a great many foreign policy materials dating back to 1793 in an attempt to discern a consistent thread of United States policy on the definition of inland waters. He ultimately decided that as of 1947 the United States had taken the position that a bay was inland water only if a closing line could be drawn across its mouth less than 10 miles long enclosing a sufficient water area to satisfy the Boggs formula. 27
Since the filing of the Special Master's Report the policy of the United States has changed significantly. Indeed it may now be said that there is a settled international rule defining inland waters. On March 24, 1961, the [381 U.S. 139, 164] United States ratified the Convention on the Territorial Sea and the Contiguous Zone (T. I. A. S. No. 5639) and on September 10, 1964, when the requisite number of nations had ratified it, the Convention went into force. For nations which do not use a straight-base-line method 28 to define inland waters (see United Kingdom v. Norway, 1951. I. C. J. Rep. 116), the Convention permits a 24-mile maximum closing line for bays and a "semicircle" test for testing the sufficiency of the water area enclosed. The semicircle test requires that a bay must comprise at least as much water area within its closing line as would be contained in a semicircle with a diameter equal to the length of the closing line. Unquestionably the 24-mile closing line together with the semicircle test now represents the position of the United States. 29
The United States contends that we must ignore the Convention on the Territorial Sea and the Contiguous Zone in performing our duty of giving content to "inland waters" as used in the Submerged Lands Act, and must restrict ourselves to determining what our decision would have been had the question been presented to us for decision on May 22, 1953, the date of enactment. At that time there was no international accord on any definition of inland waters, and the best evidence (although strenuously contested by California) of the position of the United States was the letters of the State Department which the Special Master refused to treat as conclusive.
We do not think that the Submerged Lands Act has so restricted us. Congress, in passing the Act, left the responsibility for defining inland waters to this Court. 30 We think that it did not tie our hands at the same time. [381 U.S. 139, 165] Had Congress wished us simply to rubber-stamp the statements of the State Department as to its policy in 1953, it could readily have done so itself. 31 It is our opinion that we best fill our responsibility of giving content to the words which Congress employed by adopting the best and most workable definitions available. The Convention on the Territorial Sea and the Contiguous Zone, approved by the Senate and ratified by the President, 32 provides such definitions. We adopt them for purposes of the Submerged Lands Act. This establishes a single coastline for both the administration of the Submerged Lands Act and the conduct of our future international relations (barring an unexpected change in the rules established by the Convention). Furthermore the comprehensiveness of the Convention provides answers to many of the lesser problems related to coastlines which, absent the Convention, would be most troublesome. 33 [381 U.S. 139, 166]
California argues, alternatively to its claim that "inland waters" embraces all ocean areas lying within a State's historic seaward boundaries, that if Congress intended "inland waters" to be judicially defined in accordance with international usage, such definition should possess an ambulatory quality so as to encompass future changes in international law or practice. Thus, if 10 years from now the definitions of the Convention were amended, California would say that the extent of the Submerged Lands Act grant would automatically shift, at least if the effect of such amendment were to enlarge the extent of submerged lands available to the States. We reject this open-ended view of the Act for several reasons. Before today's decision no one could say with assurance where lay the line of inland waters as contemplated by the Act; hence there could have been no tenable reliance on any particular line. After today that situation will have changed. Expectations will be established and reliance placed on the line we define. Allowing future shifts of international understanding respecting inland waters to alter the extent of the Submerged Lands Act grant would substantially undercut the definiteness of expectation which should attend it. Moreover, such a view might unduly inhibit the United States in the conduct of its [381 U.S. 139, 167] foreign relations by making its ownership of submerged lands vis-a-vis the States continually dependent upon the position it takes with foreign nations. "Freezing" the meaning of "inland waters" in terms of the Convention definition largely avoids this, and also serves to fulfill the requirements of definiteness and stability which should attend any congressional grant of property rights belonging to the United States.
1. Straight Base Lines. - California argues that because the Convention permits a nation to use the straight-base-line method for determining its seaward boundaries if its "coast line is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity." California is therefore free to use such boundary lines across the openings of its bays and around its islands. 34 We agree with the United States that the Convention recognizes [381 U.S. 139, 168] the validity of straight base lines used by other countries, Norway for instance, and would permit the United States to use such base lines if it chose, but that California may not use such base lines to extend our international boundaries beyond their traditional international limits against the expressed opposition of the United States. The national responsibility for conducting our international relations obviously must be accommodated with the legitimate interests of the States in the territory over which they are sovereign. Thus a contraction of a State's recognized territory imposed by the Federal Government in the name of foreign policy would be highly questionable. But an extension of state sovereignty to an international area by claiming it as inland water would necessarily also extend national sovereignty, and unless the Federal Government's responsibility for questions of external sovereignty is hollow, it must have the power to prevent States from so enlarging themselves. We conclude that the choice under the Convention to use the straight-base-line method for determining inland waters claimed against other nations is one that rests with the Federal Government, and not with the individual States.
California relies upon Manchester v. Massachusetts, 139 U.S. 240 , for the proposition that a State may draw its boundaries as it pleases within limits recognized by the law of nations regardless of the position taken by the United States. Although some dicta in the case may be read to support that view, we do not so interpret the opinion. The case involved neither an expansion of our [381 U.S. 139, 169] traditional international boundary nor opposition by the United States to the position taken by the State.
2. Twenty-four-mile Closing Rule. - The Convention recognizes, and it is the present United States position, 35 that a 24-mile closing rule together with the semicircle test should be used for classifying bays in the United States. 36 Applying these tests to the segments of California's [381 U.S. 139, 170] coast here in dispute, it appears that Monterey Bay is inland water and that none of the other coastal segments in dispute 37 fulfill these aspects of the Convention test. We so hold.
California asserts that the Santa Barbara Channel may be considered a "fictitious bay" because the openings at both ends of the channel and between the islands are each less than 24 miles. 38 The United States argues that the channel is no bay at all; that it is a strait which serves as [381 U.S. 139, 171] a useful route of communication between two areas of open sea and as such may not be classified as inland waters. 39
By way of analogy California directs our attention to the Breton and Chandeleur Sounds off Louisiana which the United States claims as inland waters, United States v. Louisiana, 363 U.S. 1, 66 -67, n. 108. Each of these analogies only serves to point up the validity of the United States' argument that the Santa Barbara Channel should not be treated as a bay. The Breton Sound is a cul de sac. The Chandeleur Sound, if considered separately from the Breton Sound which it joins, leads only to the Breton Sound. Neither is used as a route of passage between two areas of open sea. In fact both are so shallow as to not be readily navigable. 40 California also points to the Strait of Juan de Fuca. That strait is not claimed by the United States as a "fictitious bay" and it does not connect two areas of open sea.
Evidence submitted to the Special Master on the extent of international use made of the Santa Barbara Channel was sparse. What evidence there was indicated the usefulness of the route, but did not specify whether the ships so using it were domestic or international. 41 California [381 U.S. 139, 172] now regards the point as important, for under international law as expressed in the Corfu Channel Case, 1949. I. C. J. Rep. 4, the International Court of Justice held that a country could not claim a strait as inland water if, in its natural state, it served as a useful route for international passage. We do not consider the point of controlling importance. The United States has not in the past claimed the Santa Barbara Channel as inland water and opposes any such claim now. The channel has not been regarded as a bay either historically or geographically. In these circumstances, as with the drawing of straight base lines, we hold that if the United States does not choose to employ the concept of a "fictitious bay" in order to extend our international boundaries around the islands framing Santa Barbara Channel, it cannot be forced to do so by California. It is, therefore, unnecessary to reinstitute proceedings before a master to determine the factual question of whether the passageway is internationally useful.
3. Historic Inland Waters. - By the terms of the Convention the 24-mile closing rule does not apply to so-called "historic" bays. 42 Essentially these are bays over which a coastal nation has traditionally asserted and maintained dominion with the acquiescence of foreign nations. 43 California claims that virtually all the waters here in dispute are historic inland waters as the term is internationally understood. It relies primarily on an interpretation of its State Constitution to the effect that [381 U.S. 139, 173] the state boundaries run three miles outside the islands and bays, 44 plus several court decisions which so interpret it as applied to Monterey, Santa Monica, and San Pedro Bays. 45 The United States counters that, as with straight base lines, California can maintain no claim to historic inland waters unless the claim is endorsed by the United States. The Special Master found it unnecessary to decide that question because, on the evidence before him, he concluded that California had not traditionally exercised dominion over any of the claimed waters.
Since the 24-mile rule includes Monterey Bay, we do not consider it here. As to Santa Monica Bay, San Pedro Bay, and the other water areas in dispute, we agree with the Special Master that they are not historic inland waters of the United States.
California contends that two studies of the criteria for determining historic waters have been made since the Special Master filed his report 46 which show that he applied the wrong standards, thus vitiating his conclusions. In particular it is said that the Special Master [381 U.S. 139, 174] erroneously thought the concept of historic waters to be an exception to the general rule of inland waters requiring a rigorous standard of proof. We find no substantial indication of this in his report.
On the evidence, California's claim that its constitution set a boundary beyond the bays and islands is arguable, but many of the state statutes drawing county boundaries which supposedly run to the limit of the state boundaries cut the other way by indicating a line only three miles from shore. 47 Furthermore, a legislative declaration of jurisdiction without evidence of further active and continuous assertion of dominion over the waters is not sufficient to establish the claim. 48 There is a federal district court opinion. United States v. Carrillo, 13 F. Supp. 121 (1935), which dismissed federal criminal charges for an offense which took place more than three miles from the shore of San Pedro Bay on the ground that the bay was within California, not federal, jurisdiction; but it is difficult to see this dismissal as an assertion of dominion. In Santa Monica Bay, California did successfully prosecute a criminal offense which took place more than three miles from the shore, People v. Stralla, 14 Cal. 2d 617, 96 P.2d 941 (1939). However, the decision stands as the only [381 U.S. 139, 175] assertion of criminal jurisdiction of which we have been made aware. 49
The United States disclaims that any of the disputed areas are historic inland waters. We are reluctant to hold that such a disclaimer would be decisive in all circumstances, for a case might arise in which the historic evidence was clear beyond doubt. But in the case before us, with its questionable evidence of continuous and exclusive assertions of dominion over the disputed waters, we think the disclaimer decisive.
4. Harbors and Roadsteads. - The parties disagree as to whether inland waters should encompass anchorages beyond the outer harborworks of harbors. The Convention on the Territorial Sea and the Contiguous Zone (Art. 8) states without qualification that "the outermost permanent harbour works which form an integral part of the harbour system shall be regarded as forming part of the coast." We take that to be the line incorporated in the Submerged Lands Act.
As to open roadsteads used for loading, unloading and anchoring ships, the Convention (Art. 9) provides that such areas should be included in the territorial sea, and, by implication, that they are not to be considered inland waters. We adopt that interpretation.
5. The Line of Ordinary Low Water. - Along the California coast there are two low tides each day, one of which is generally lower than the other. The assertion of the United States, with which the Special Master agreed, is that the line of ordinary low water is obtained by taking [381 U.S. 139, 176] the average of all the low tides. California would average only the lower low tides.
We hold that California's position represents the better view of the matter. The Submerged Lands Act defines coastline in terms of the "line of ordinary low water." The Convention (Art. 3) uses "the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State" (i. e., the United States). We interpret the two lines thus indicated to conform, and on the official United States coastal charts of the Pacific Coast prepared by the United States Coast and Geodetic Survey, it is the lower low water line which is marked.
6. Artificial Accretions. - When this case was before the Special Master, the United States contended that it owned all mineral rights to lands outside inland waters which were submerged at the date California entered the Union, even though since enclosed or reclaimed by means of artificial structures. The Special Master ruled that lands so enclosed or filled belonged to California because such artificial changes were clearly recognized by international law to change the coastline. Furthermore, the Special Master recognized that the United States, through its control over navigable waters, had power to protect its interests from encroachment by unwarranted artificial structures, and that the effect of any future changes could thus be the subject of agreement between the parties.
The United States now contends that whereas the Submerged Lands Act recognized and confirmed state title within all artificial as well as natural modifications to the shoreline prior to the passage of the Act, Congress meant to recognize only natural modifications after the date of the Act. The Act, however, makes no specific reference to artificial accretions, and nowhere in the legislative history did anyone focus on the question. 50 The United [381 U.S. 139, 177] States points by analogy to the rule of property law that artificial fill belongs to the owner of the submerged land onto which it is deposited. Marine R. & Coal Co. v. United States, 257 U.S. 47, 65 . We think the situation different when a State extends its land domain by pushing back the sea; in that case its sovereignty should extend to the new land, as was generally thought to be the case prior to the 1947 California opinion. 51 The considerations which led us to reject the possibility of wholesale changes in the location of the line of inland waters caused by future changes in international law, supra, pp. 166-167, do not apply with force to the relatively slight and sporadic changes which can be brought about artificially. Arguments based on the inequity to the United States of allowing California to effect changes in the boundary between federal and state submerged lands by making future artificial changes in the coastline are met, as the Special Master pointed out, by the ability of the United States to protect itself through its power over navigable waters.
With the modifications set out in this opinion we approve the recommendations of the Special Master. The parties, or either of them, may, before September 1, 1965, submit a proposed decree to carry this opinion into [381 U.S. 139, 178] effect, failing which the Court will prepare and enter an appropriate decree at the next Term of Court.
[ Footnote 2 ] The late William H. Davis of New York City.
[ Footnote 3 ] The segments were as follows:
1. From Point Conception to Point Hueneme:
2. San Pedro Bay;
3. From the southern extremity of San Pedro Bay to the western headland at Newport Bay;
4. Crescent City Bay;
5. Monterey Bay;
6. San Luis Obispo Bay;
7. Santa Monica Bay;
We directed the Special Master to recommend answers to the following questions:
[ Footnote 4 ] California's claim to the "overall unit area" runs from Point Conception to Richardson Rock (21 miles across water), to San Miguel Island, to Santa Rosa Island, to Gull Island; thence to Begg Rock (35.8 miles), to San Nicolas Island, to San Clemente Island (43 miles); thence back to the mainland at Point Loma (56.8 miles). San Nicolas and San Clemente Islands are over 50 miles from shore. See Map attached as Appendix C to the dissenting opinion, post, at 178.
[ Footnote 5 ] To determine whether a coastal indentation is of sufficient depth and shape to be inland water, the Boggs formula would (1) draw the closing line across the mouth of the indentation; (2) draw a belt around the shore of the indentation (similar to a small marginal belt) having a width equal to one-fourth the length of the closing line across the entrance; (3) compare the remaining area inside the closing line with the area of a semicircle having a diameter equal to one-half of the length of the closing line, and if the enclosed area is larger than that of the semicircle, the indentation is inland water. Boggs, Delimitation of the Territorial Sea, 24 Am. J. Int'l L. 541, 548.
[ Footnote 6 ] The Special Master recommended as follows:
[ Footnote 7 ] The Submerged Lands Act provides in relevant part:
[ Footnote 8 ] One English, statute, or land mile equals approximately .87 geographical, marine, or nautical mile. The conventional "3-mile limit" under international law refers to three geographical miles, or approximately 3.45 land miles.
[ Footnote 9 ] S. Rep. No. 133, 83d Cong., 1st Sess., 18.
[ Footnote 10 ] 99 Cong. Rec. 4116. Senator Anderson proposed a similar amendment while the bill was in committee. Hearings before the Senate Committee on Interior and Insular Affairs on S. J. Res. 13 and other bills, 83d Cong., 1st Sess., 1348 (hereinafter cited as Senate Hearings). After discussion the proposal was voted down, id., at 1416.
[ Footnote 11 ] Closing Brief of California 14.
[ Footnote 12 ] Senate Hearings 312-315, 1064-1065, 1085, 1304, 1378.
[ Footnote 13 ] See also Senate Hearings 1285 (remarks of Senator Cordon).
[ Footnote 14 ] Senate Hearings 275-280.
[ Footnote 15 ] Id., at 1052.
[ Footnote 16 ] Id., at 1374-1380.
[ Footnote 17 ] Id., at 1380-1385.
[ Footnote 18 ] In the later debates, Senator Cordon answered an assertion that the committee had rejected the Boggs formula by saying, "The committee, as I recall, and I think I am correct, neither accepted nor rejected the Boggs formula or any other formula." 99 Cong. Rec. 2633. And see the material quoted in n. 23, infra.
[ Footnote 19 ] See Senate Hearings 1415 (remarks of Senator Cordon).
[ Footnote 20 ] See, e. g., 99 Cong. Rec. 2881, 2916, 3038-3040, 3549-3564, 3655-3656, 3884-3886, 4085-4086, 4094-4099, 4109.
[ Footnote 21 ] 99 Cong. Rec. 3655 (remarks of Senator Kilgore).
[ Footnote 22 ] 99 Cong. Rec. 2695, 3039 (remarks of Senator Daniel), 2746 (remarks of Senator Holland), 2881 (remarks of Senator Anderson), 2916 (remarks of Senators Anderson and Douglas). Senate Hearings 957 (remarks of Senator Holland).
[ Footnote 23 ] Several amendments were offered and defeated which would have limited the grant to the international three-mile limit or to three miles from the shoreline around the entire coastal perimeter of the United States, thus cutting off any claims to a three-league limit by the Gulf Coast States. See 99 Cong. Rec. 4157, 4203, 4473-4478. The reason for the unacceptability of these amendments to the leaders of the measure, largely composed of Senators from the Gulf Coast States, is obvious, and had nothing to do with any particular concept of inland waters.
Senator Douglas introduced amendments specifically designed to prevent States from claiming as inland waters those water areas between the mainland and remote islands. Section 2 (c), as amended, would have read: "The term `coast line' means the line of ordinary low water along that portion of the coast of the main continent which is in direct contact with the open sea and the line marking the seaward limit of inland waters, and in the case of any island seaward of such coast, means the line of ordinary low water around such island." 99 Cong. Rec. 4240. (Amendments italicized.) The colloquy leading to the rejection of these amendments is extremely revealing in the total absence of hostility to the basic idea which Senator Douglas was pursuing and the absence of any understanding by the leaders of the measure that it embodied an historical definition of inland waters.
[ Footnote 24 ] See, e. g., 99 Cong. Rec. 3110-3112 (remarks of Senator Hill).
[ Footnote 25 ] The 1947 case raised the purely legal question - who owned the lands and mineral rights beneath the marginal sea belt? In deciding that they belonged to the United States the Court relied heavily on the international responsibilities of the Federal Government.
Resolution of that question will (1) determine for the present the location of the marginal belt which we claim against other nations, and (2) define the areas within which ships of foreign nations have no right of innocent passage. Unquestionably, the definitions of what constitutes open sea and inland waters is, to borrow the words of the 1947 opinion, "a subject upon which the nation may enter into and assume treaty or similar international obligations." Negotiations at [381 U.S. 139, 163] The Hague beginning in 1930 were directed to just that end, and the Convention on the Territorial Sea and the Contiguous Zone, to which we became a party in 1961, now establishes rules for separating the open sea from inland waters.
[ Footnote 26 ] Letter from Acting Secretary of State Webb to Attorney General McGrath, November 13, 1951, Senate Hearings 460: letter from Secretary of State Acheson to Attorney General McGrath, February 12, 1952, Senate Hearings 462.
[ Footnote 27 ] See n. 5, supra. Neither the Special Master nor the United States treated the Boggs formula as having been the "definitive" United States position. The Special Master recommended it as an "appropriate technical method" for measuring the sufficiency of the depth of bays. Report of Special Master 26.
[ Footnote 28 ] See n. 34, infra.
[ Footnote 29 ] Letter from Dean Rusk, Secretary of State, to Robert Kennedy, Attorney General, January 15, 1963, II International Legal Materials 527.
[ Footnote 30 ] See discussion and legislative history, Part II, supra.
[ Footnote 31 ] See 99 Cong. Rec. 2633 (remarks of Senators Long and Cordon).
[ Footnote 32 ] The Convention was approved by the Senate May 26, 1960, 106 Cong. Rec. 11196, and was ratified by the President March 24, 1961, 44 State Dept. Bull. 609. See Treaties in Force - January 1, 1965, 263.
[ Footnote 33 ] In support of the position that we should ignore the developments in the law and practice of nations respecting the concept of inland waters which have transpired subsequent to the passage of the Submerged Lands Act - a position which the Solicitor General frankly recognized in his oral presentation was not an easy one for the Government to maintain - the United States cites a statement made by Senator Cordon during the hearings.
[ Footnote 34 ] Article 4 of the Convention provides:
[ Footnote 35 ] Letter from Dean Rusk, Secretary of State, to Robert Kennedy, Attorney General, January 15, 1963, II International Legal Materials 527; Brief for the United States in Answer to California's Exceptions 148.
[ Footnote 36 ] The full text of Article 7 is as follows:
[ Footnote 37 ] The parties stated that Crescent City Bay is no longer an area in dispute.
[ Footnote 38 ] The United States asserts that "international law recognizes no principle of `fictitious bays.'" We find it unnecessary to decide that question. The Government states:
[ Footnote 39 ] See Letter from Acting Secretary of State Webb to Attorney General McGrath, November 13, 1951. Senate Hearings 460. See also Senate Hearings 1084-1085 (remarks of Jack B. Tate).
[ Footnote 40 ] The depth in general ranges between 6 and 12 feet according to Coast and Geodetic Survey Chart No. 1270, but there is no passage as much as 12 feet deep connecting the ends of the sounds. The sounds are "navigable waters" in the legal sense even in the parts too shallow for navigation. See United States v. Turner, 175 F.2d 644, 647, cert. denied, 338 U.S. 851 .
[ Footnote 41 ] Testimony before the Special Master indicated that the channel provided a substantial amount of protection from the rough seas of the Pacific and was used as an alternate route of passage for ships "coming down from the Pacific Northwest." (Tr. 595. See also Tr. 608.) In its appendix, p. 57, California points to a statement in [381 U.S. 139, 172] Davidson, Coast Pilot of California, Oregon, and Washington (4th ed. 1889), p. 53, "The islands break the force of the large westerly swell of the Pacific along the coast-line, and in winter afford good lee from the full force of the southeast gales."
[ Footnote 42 ] See Art. 7, 6, supra, n. 36.
[ Footnote 43 ] See generally, Juridical Regime of Historic Waters, Including Historic Bays, U. N. Doc. A/CN.4/143 (1962).
[ Footnote 44 ] Article XII of the California Constitution of 1849 described the sea boundary of the State of California as follows:
[ Footnote 45 ] Ocean Industries, Inc. v. Superior Court, 200 Cal. 235, 252 P. 722 (1927); Ocean Industries, Inc. v. Greene, 15 F.2d 862 (D.C. N. D. Cal. 1926) (Monterey Bay). People v. Stralla, 14 Cal. 2d 617, 96 P.2d 941 (1939) (Santa Monica Bay). United States v. Carrillo, 13 F. Supp. 121 (1935) (San Pedro Bay).
[ Footnote 46 ] Historic Bays, U. N. Doc. A/CN.13/1 (1957), and Juridical Regime of Historic Waters, Including Historic Bays, U. N. Doc. A/CN.4/143 (1962).
[ Footnote 47 ] E. g., for San Diego County, see Cal. Stat. 1850, c. 15, 2, p. 58; Cal. Stat. 1851, c. 14, 2, p. 172; Cal. Political Code 1872, 3907, 3944; Cal. Political Code 1923, 3945; Cal. Stat. 1919, c. 470, 38, p. 895; Cal. Stat. 1923, c. 160, 38, p. 361; Cal. Govt. Code 23137; Cal. Stat. 1947, c. 424, p. 1069. For Los Angeles County, see Cal. Stat. 1850, c. 15, 3, p. 59; Cal. Stat. 1851, c. 14, 3, p. 172; Cal. Stat. 1856, c. 46, 1, p. 53; Cal. Political Code 1872, 3945; Cal. Stat. 1919, c. 470, 20, p. 877; Cal. Political Code 1923, 3927; Cal. Stat. 1923, c. 160, 20, p. 343; Cal. Govt. Code 23119; Cal. Stat. 1947, c. 424, p. 1055.
[ Footnote 48 ] See generally, Juridical Regime of Historic Waters, Including Historic Bays, U. N. Doc. A/CN.4/143, §§ 80-105 (1962).
[ Footnote 49 ] The United States Attorney for the Southern District of California participated as an amicus curiae in the Stralla case and supported the position of California. We do not consider this action so significant as to foreclose the United States in the controversy before us. Compare the discussion of actions taken by the Secretary of the Interior in United States v. California, 332 U.S. 19, 39 -40.
[ Footnote 50 ] See, e. g., 99 Cong. Rec. 2697 (remarks of Senator Cordon): Senate Hearings 1344-1345, 1353-1358, 1374.
[ Footnote 51 ] See, e. g., Statement of Robert Moses and the discussion following it. Senate Hearings 137.
The United States points by analogy to judicial interpretations of the Swamp Land Act of 1850, 9 Stat. 519, to the effect that it granted only those lands which were swamp at the date of its passage. However, the terms of that Act were specific: ". . . those swamp and overflowed lands . . . which shall remain unsold at the passage of this act, shall be, and the same are hereby, granted . . .": and it granted lands sovereignty over which had never been thought to change because the nature of the land changed.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, dissenting.
In 1947 in United States v. California, 332 U.S. 19 , this Court held that the United States had paramount rights in the waters and submerged lands lying adjacent to its coastlines. A Special Master was appointed to apply the rule of that case to segments of submerged land off the mainland of California. In 1953 Congress, believing that this Court's decision unfairly denied to the coastal States submerged lands within their historic boundaries, passed the Submerged Lands Act to upset that decision and restore to the States what Congress believed had historically and rightfully been theirs. The Court today decides this case on the basis of the 13-year-old Master's Report which attempted to carry out the 1947 California opinion and decree. Instead of relying on that 1952 Report which was based on a decision which Congress in 1953 forcefully and emphatically rejected in the Submerged Lands Act, I would refer this case to a Master for new hearings, findings and recommendations to be made in light of the Submerged Lands Act, the controlling statutory law as it now exists.
The issue in this case is whether California or the United States is the owner of seven segments of land lying under the sea off the mainland of California. 1 Most [381 U.S. 139, 179] of the segments lie under or outside what are called bays in popular usage, and as to them the question is whether and how much of the land underlying them and the marginal sea beyond belongs to California. 2 One large segment, which also includes two of the bays in issue, touches the sea opposite a chain of islands which lie up to approximately 50 miles off the mainland, separated by the Santa Barbara Channel, the San Pedro Channel, and the Gulf of Santa Catalina. 3 As to that segment, California claims ownership of the sea bottom under the water separating the islands from the mainland and three miles beyond the islands, while the United States argues that California owns only a strip three geographic miles wide around each island and one extending three geographic miles from the mainland shore, with the intervening submerged land all belonging to the Federal Government. In order to understand the present contentions of the parties, it is necessary to go back to the years before 1945, the year in which the dispute of which the present controversy is an aftermath came before this Court.
For many decades some of the States bordering on the sea had claimed dominion over water and submerged lands lying off their shores. Their claims usually were stated as extending into the open sea a distance of three statute [381 U.S. 139, 180] miles, three geographic miles, or three marine leagues from their "coast lines." 4 But "coast line," as the term was used in many such claims, and as it is used in modern geographic descriptions, does not mean simply the low-water mark of the mainland shore; rather, it means a legally recognized line which follows the low-water mark of the shore where the shore is relatively straight and facing open sea, and which at other points follows the recognized outside limits of "inland waters." which flow into the sea or form indentations in the land. Such "inland waters" may include certain estuaries, bays and harbors, and waters between a mainland and offshore islands.
For many years the Federal Government raised no objection to the various States' claims that their boundaries, including claims to the marginal sea, extended outward for various distances into the sea. However, by the 1930's it became apparent that the submerged lands off the shores of certain States contained rich and valuable oil reserves and other natural resources. In the late 1930's it was for the first time asserted that in spite of the States' historic claims the United States, and not the respective coastal States, was the owner of all submerged lands lying both within and without the three-mile limits, except for land under "inland waters." 5 California and other States claimed that they were the owners of all submerged lands within their historic boundaries dating back to their respective admissions to the Union, including of course both historic inland waters and a three-mile or three-league strip of marginal sea beyond. To settle this controversy the United States in 1945 [381 U.S. 139, 181] brought in this Court the action against California of which today's decision is an aftermath, alleging that the United States was "the owner in fee simple of, or possessed of paramount rights in and powers over, the lands, minerals and other things of value underlying the Pacific Ocean, lying seaward of the ordinary low water mark on the coast of California and outside of the inland waters of the State, extending seaward three nautical miles . . . ." California objected immediately that the complaint was vague because the Government did not make clear how broadly or narrowly it defined "inland waters." California also answered that its historic boundaries as set out in its constitution in 1849, approved when it was admitted to the Union, included not only a strip out to three miles from its coast, but also "all the islands, harbors, and bays along and adjacent to the Pacific coast," and that therefore "all lands under all navigable waters within the boundaries of the State" belonged to it. This Court then held in 1947 in United States v. California, 332 U.S. 19 , that the United States and not California had paramount rights in all the waters and submerged lands within the three-mile belt of marginal sea "outside of the inland waters." 332 U.S. 804, 805 . See also United States v. Louisiana, 339 U.S. 699 ; United States v. Texas, 339 U.S. 707 . As for the problem of deciding what were inland waters and what were not, and of drawing an exact demarcation between the inland waters and a three-mile strip of marginal sea, this Court said that "there is no reason why, after determining in general who owns the three-mile belt here involved, the Court might not later, if necessary, have more detailed hearings in order to determine with greater definiteness particular segments of the boundary." 332 U.S., at 26 .
It was not long before such hearings did become necessary, for the United States and California found themselves in sharp disagreement as to what the term "inland [381 U.S. 139, 182] waters" meant when applied to specific segments of the California coast. Both parties assumed at that time, long before the Submerged Lands Act was passed, that the term was to be given a content derived from the usage of international law and the United States' foreign relations, since the California decision in upholding the claim of the United States to land under the three-mile belt of marginal sea had relied on the necessity of federal protection and control of the territorial seas as an incident of national sovereignty. But the doctrines of international law were so confused and contradictory as to exactly what measurements a bay must have to be inland water, and under what conditions a channel between islands and the mainland was inland water, that both sides were able to find precedents supporting them. This Court therefore submitted the case to a Special Master to make findings of fact and recommendations of law as to whether each of seven segments of submerged land off the mainland of California, the same seven now in dispute, should be treated as "inland waters" within the meaning of the California opinion and decree, and therefore the property of the State. 6 342 U.S. 891 . On October 14, 1952, the Master filed his Report, 344 U.S. 872 , in which he said he assumed that the test of whether the land in dispute belonged to California depended on whether it was inland water "by (1) any customary, generally recognized rule of international law . . . or by (2) effective assertion by the United States on its own behalf in its international relations." He thus considered any claim based on the historic boundaries of the State as totally irrelevant, as having been rejected in this Court's 1947 opinion, and he ruled in substance that the United States was the owner of the submerged lands in question to the extent it claimed. [381 U.S. 139, 183] Whether the test he used correctly interpreted the opinion need not concern us at this point. California of course filed exceptions, as did the United States. Then in 1953 Congress entered the picture by passing the Submerged Lands Act, and for more than 10 years, during which neither of the parties took any further steps in this Court and the Master's Report lay dormant, it appeared that the Act of Congress had determined the dispute.
The Submerged Lands Act of 1953 7 gave to the coastal States "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 . . . ." 8 It defined "lands beneath navigable waters" as all submerged land lying within three geographic miles seaward of the "coast line" of the State, 9 which was in turn stated to be the low-water mark where the mainland was in direct contact with the open sea, and elsewhere the seaward limit of the "inland waters." 10 The Act said, in language of extreme importance to the resolution of the present dispute at the present time, that each State was to have title to submerged lands "to the boundary line of each such State" 11 with the term "boundaries" meaning "the seaward boundaries of a State . . . as they existed at the time such State became a member of the Union, or as heretofore approved by the Congress," 12 up to a limit of three geographic miles from the coastline in the Atlantic and Pacific Oceans, and three leagues from the coastline in the Gulf of Mexico. 13 Thus each State was given title to the submerged lands [381 U.S. 139, 184] off its shores out as far as its boundaries at the time the State entered the Union, which were stated not to go more than three miles (or leagues) beyond its "coast line." The "coast line" was the outer limit of its "inland waters." The basic question here is whether the State's "coast line" as the term is used in the Act is to be determined by looking at the State's historic boundaries when it entered the Union, or by the standard used by the Master in carrying out the California decree.
For 10 years after the Act was passed transferring title to these submerged lands to the States, no further action in the case pending in this Court was taken by either the United States or California. 14 California's original claim that these bays and channels were inland waters within the meaning of this Court's decree had ceased to be so important, since the States had been given title to all the submerged lands out to their historic boundaries, including recognition of their claims to three miles or leagues of the marginal sea. After 10 years had passed, however, exploitation of undersea oil resources had become possible in deep water at great distances from the mainland, and the United States raised this present dispute with California concerning where the outer limit of the submerged land given the State by the Submerged Lands Act lay. The United States contends that this depends on the location of the "coast line" since the State's added rights extended three miles from the "coast line," and that the location of the "coast line" depends in turn on the location of the seaward edge of the "inland waters," which the United States argues should be measured according to the definition of "inland waters" used by the Master in his hearings in the California case; the United States further argues that the report of the Master settled the case, and that the subsequent passage of the Submerged [381 U.S. 139, 185] Lands Act had no effect on the correctness of the standard he used. California replies that since the stated purpose of the Act was to restore the States' claims to the submerged lands within their historic boundaries, which included all waters within the States' boundaries as inland waters and three miles beyond into the territorial sea, the "coast line" or seaward edge of the "inland waters" was to be defined in terms of what a State had historically claimed was its coastline, the line from which it had measured its boundary, by its three-mile claim to the marginal sea. In other words, the United States proposes that in measuring California's submerged lands even under the Submerged Lands Act this Court should start with a line of internationally defined "inland waters" as applied by the Master in carrying out the decree in the California case, and measure three miles out. California argues that since the effect of the California case was rejected by the Submerged Lands Act, this Court should look only to the Submerged Lands Act for the governing law and in defining the State's boundary should start with the coastline as historically recognized when the State was admitted to the Union, from which the State measured its three-mile claim of marginal sea, and measure three miles outward from that historic coastline, thus restoring the State's historic boundaries. I think that the language and purpose of the Submerged Lands Act of 1953 show that California is right.
This Court's 1947 holding precipitated one of the most hotly contested political issues of the post-war decade. Critics of the decision said that it had come as a complete surprise and had effectively taken away from the coastal States what they and others had thought from the time they entered the Union and before belonged to them. In 1952 a resolution passed both houses of Congress designed to "restore" to the States the submerged lands which they [381 U.S. 139, 186] had thought they owned before the California decision. 15 Many opposed this bill as a "give away" of the federal public domain, and President Truman prevented the bill's passage by vetoing it. 16 Even in so doing, however, he recognized frankly that "Even so careful and zealous a guardian of the public interest as the late Secretary of the Interior, Harold Ickes, at first assumed that the undersea lands were owned by the States." 17
The controversy over whether to upset the Federal Government's title which this Court had declared in the 1947 decision continued, however, and on January 9, 1953, Senator Holland of Florida on behalf of himself and 39 other Senators introduced a bill, Senate Joint Resolution 13, 18 which was identical with the bill which had passed the previous year and which, with various amendments, passed both houses of Congress, was signed by President Eisenhower, and became law as the Submerged Lands Act of 1953. The stated purpose of the law as enacted was
We start then from the conceded fact that the bill as originally introduced gave California title to all the submerged lands off its shore out to its historic boundaries, whatever they might prove to be. The Court, however, pins its case for denying California those historic boundaries on what it calls two "relevant," indeed fundamental, changes, ante, p. 150, made in the bill prior to its passage, which the Court says show that the bill's sponsors suddenly altered their intent and decided instead of restoring to California and other States mineral rights within their historic boundaries, to limit them to a three-mile or three-league [381 U.S. 139, 189] strip of marginal waters along "coast lines" which were to be restrictively defined according to current policies of international relations adhered to by the State Department. A study of the legislative history convinces me that in making the two changes on which the Court relies, the Senators intended in no way to alter the purpose of the original Holland bill to restore to the States all the waters and submerged lands within their historic constitutional boundaries. They expressly, vigorously and repeatedly avowed that the original purpose was unchanged.
This change which its sponsor thought was "minor" and which the Court thinks is fundamental, and on which the Court's whole argument depends, merely modified the definition of "boundaries" in 2 of the Act by adding:
This three-mile or three-league limitation amendment was added for a very simple reason, which is plain in the Congressional Record and which shows that the sponsors of the bill were reaffirming rather than abandoning their basic original purpose in offering this and similar bills: they wished to restore to the States the submerged lands out to their historic boundaries, including three miles or leagues of marginal sea, but no farther. As reported from Committee, the bill gave the States submerged lands out to their boundaries at the time they entered the Union "or as heretofore or hereafter approved by Congress" without any limitation. It was feared by some that one or more of the States, none of which had ever claimed more than three miles (or leagues) of the marginal sea, might suddenly assert claims that their boundaries extended out hundreds of miles to the very limits of the Continental Shelf. 53 If allowed to do this, the fear was expressed, such States would be taking title to mineral wealth far beyond the historic boundaries to which the sponsors of the bill wished to confine them. The sponsors stated that their purpose was merely to "restore" to the States what they had thought they had had as boundaries - the outer part of the Continental Shelf was to belong to the Federal Government. 54 In order to prevent any States from trying to use the word "boundaries" in the Act to push their boundaries out beyond their historic [381 U.S. 139, 200] three-mile or three-league claims to the marginal sea, Senator Holland himself introduced this amendment. It deleted the words "or hereafter," thus limiting the States to any boundaries which they had previously claimed, in spite of any claims they might make in the future; and it also set forth as a limitation the Senators' understanding of the maximum extent of the marginal sea historically claimed by any State from or as a part of its historic boundaries: three geographical miles in the Atlantic and Pacific Oceans, and three leagues in the Gulf of Mexico. As Senator Holland explained, a limitation to existing boundaries had been the intention of the bill's sponsors all along, and it had been and was the understanding of the sponsors that no States claimed that their historic boundaries extended more than three miles from their coastlines in the Atlantic or Pacific Oceans. He said the three-mile limitation was "just a minor change of verbiage" 55 made in order "to make very clear that Congress at this time is seeking to do only those things which the authors and supporters of the joint resolution have so very fully, and rather repeatedly, stated for the RECORD heretofore during the course of the debate." 56 He reiterated that
Time and time again the proponents of the bill stated before the amendment was passed that no State claimed [381 U.S. 139, 201] more than three miles or leagues of marginal sea as part of its historic boundaries, and no State would be given rights by the bill beyond those original claims. Said Senator Holland, "I emphasize the fact that this joint resolution does not extend the boundary of any State beyond the 3-mile limit." 59 Said Senator Daniel, again before the amendment:
The Court's opinion lays great stress on an opinion expressed by Senator Holland that California's claim that its historic boundary of inland waters and marginal sea extended out to and three miles beyond its offshore islands was not persuasive. The Court leaves the impression that Senator Holland made a ruling that California's claim would not be covered by the Act. In fact he did nothing of the kind, but merely expressed the opinion to opponents of the bill who said that restoring the States to their historic boundaries would give them too large an area of submerged lands and who cited California's claim to the channel as an example, that he thought California would have a difficult time in proving that its historic boundary extended so far. The context of Senator Holland's remarks is important to set out in full, since when read in context his opinion, which he later repeated on several occasions, serves to emphasize that he intended that each State be allowed to prove where its historic boundaries lay, which is all that California is asking that it be allowed to do here, and which is what the Court now denies it.
The exchange began when Senator Long of Louisiana asked Senator Holland about how far seaward Louisiana's boundary would extend under the bill. Senator Long said:
As a further indication that the three-miles-from-coastline amendment was not intended to affect States' claims to their historic boundaries, the record shows that opponents of the bill subsequently tried to amend it to restrict the line from which the three-mile limits would be measured, and failed. Senator Douglas of Illinois, a leader of the opposition, proposed an amendment which would have changed the definition of "coast line" in the bill so that the three miles would be measured only from the main continent, and separately around any islands, thus cutting off California's claim to the submerged lands between the islands and the mainland, which is largely the issue before us now. Senator Douglas indicated specifically that his proposed amendment was intended to destroy California's claim to those submerged lands, and that he had warned Senator Kuchel of California of his intention to introduce it. 66 Senator Long of Louisiana objected that "the Senator from Illinois is submitting his own definition of inland waters." 67 Senator Douglas' amendment was defeated, 68 and California's historic [381 U.S. 139, 205] claims, for whatever they might prove to be worth, were left, as Senator Holland had stated, undiminished.
I think that this review of the relevant hearings and debates in the Senate makes clear three things: (1) As originally proposed, the bill was intended to "restore" to the States title to submerged lands within their historic boundaries, whatever those might prove to be. (2) The removal of the explicit definition of inland waters, far from being, as the Court views it, fundamental, was not a "change of substance" 69 and was "not done in any manner to prejudice the rights of the States"; 70 it was intended merely to avoid possible embarrassment in the field of international relations from a bill which had nothing [381 U.S. 139, 206] to do with international relations or international law, being merely a "transfer of title." 71 (3) The addition of the limitation of boundaries to three miles beyond the coastline, far from being, as the Court views it, fundamental, was "just a minor change of verbiage" 72 intended to make clear what the bill's sponsors had intended all along: that the bill was not designed to allow States in the future to push their boundaries out to the limits of the Continental Shelf, but rather to limit them to everything within their historic boundaries, including historic coastlines and historic three-mile or three-league claims to the marginal sea beyond.
Near the conclusion of the debates on the bill Senator Holland in explaining its purpose used these words, which I do not think show any fundamental or even perceptible changes or modifications of philosophy from those he had used in his first speech on the bill:
This, then, is the legislative history of the Submerged Lands Act, both in the Senate and in the House, which, according to the Court, shows that the sponsors and supporters of the Act completely altered their intention of restoring to the States the submerged lands within their historic boundaries, and instead left the States with what the Court allows them today. I think that the statements and actions of the supporters of the bill show on the contrary that the intention of restoring all submerged lands under all waters within historic state boundaries was plainly and explicitly stated and understood by all from the beginning, and, despite attacks from opponents of the bill, never varied. Time and time again the Senators and Congressmen repeated that the bill had not been changed in any way to diminish the rights granted to the States in the bill as originally introduced - rights which, as the Court does not dispute, included the right to all submerged lands under all waters within historic state boundaries. I would follow the understanding of the authors and supporters of the bill, and I would take them at their word. [381 U.S. 139, 210]
In light of this legislative history, of which I have set forth only a small part, I think that under the Submerged Lands Act California is entitled to all the submerged lands within its historic boundaries, and that it should be given an opportunity to try to prove in hearings before a Master where those historic boundaries were. The Court says that Congress left it up to this Court to expound the legal principles which shall determine California's claims, without any reference to the Submerged Lands Act's stated purpose to restore the mineral rights of the States in submerged lands within their historic boundaries. I think the Court is completely misreading the intentions of the authors and supporters of the Act. If there is anything clear in the legislative history, it is that Congress was not satisfied with the way in which this Court had decided the California case and did not approve of the considerations of external sovereignty used there in determining a domestic dispute over title. It seems to me the height of irony to hold that an Act passed expressly to escape the effect of this Court's opinion in this field is now construed as leaving us free to announce principles directly antithetic to the basic purpose of Congress of deciding that question for itself once and for all. True, the Congress left to the courts the exercise of their historic function to decide the factual question of where a State's historic boundaries, based on those approved when it was admitted to the Union, lie. But I think the Court errs in arguing repeatedly that by leaving it to the courts to decide the issues of fact in particular cases, Congress meant to leave it to this Court to determine the legal principles governing California's claim, and in particular to do so by adopting a formula of its own devising based on one used by the State Department in its handling of foreign affairs. [381 U.S. 139, 211]
California has never been given an opportunity to appear at a hearing to determine where its boundaries were when it came into the Union. The 13-year-old report of the Master quite naturally considered this issue irrelevant since the Submerged Lands Act had not been passed at the time that report was made. Certainly it cannot be asserted that California's claim that its 1849 boundaries included these areas is frivolous. By the terms of its constitution approved by Congress when the State was admitted to the Union in 1850, and over the years, California appears to have claimed that its boundaries extended beyond its outlying islands and has claimed as inland waters within those boundaries all the bays, harbors and channels in question in this lawsuit. A statement in the original California Constitution, 82 several official maps, including the one used at the California [381 U.S. 139, 212] constitutional convention in 1849, 83 and other evidence tend to support California's contention that it historically owned these bays and the channel between the islands and the mainland. Both state and federal court decisions have held as a matter of fact and law that some of the very bays in question here, which the Government argues are not inland waters in the international sense, were within the boundaries of the State and subject to its jurisdiction. Ocean Industries, Inc. v. Greene, 15 F.2d 862 (D.C. N. D. Cal.) (Monterey Bay); United States v. Carrillo, 13 F. Supp. 121 (D.C. S. D. Cal.) (San Pedro Bay); People v. Stralla, 14 Cal. 2d 617, 96 P.2d 941 (Santa Monica Bay); Ocean Industries, Inc. v. Superior Court, 200 Cal. 235, 252 P. 722 (Monterey Bay). Indeed, in one of these cases, People v. Stralla, supra, the United States Attorney with the authorization of the Attorney General of the United States appeared as amicus curiae agreeing with the State's attorney that all of the bay in question there as here was within California's boundaries and subject to its exclusive territorial jurisdiction. 84
There may be evidence which tends to disprove the historic validity of California's claims. But what California has asked here is an opportunity to prove where its boundaries historically were, to use the test of ownership fixed by Congress in the Submerged Lands Act rather than the foreign-relations tests set up by the Special Master 13 years ago and approved by this Court today for the first time. I think that the legislative history of the Submerged Lands Act shows without question that the definitions in it were to be read as preserving to the maritime States their claims to submerged lands and waters within [381 U.S. 139, 213] their historic boundaries, and that those who offered and supported the bill regarded California's claim to these bays, harbors and the channel out to its offshore islands as something the State would be allowed to try to prove. In litigation to determine the extent of the outer limits of the States' historic boundaries in the marginal sea in the Gulf of Mexico, Texas and Florida were allowed to prove their historic boundaries and won in United States v. Louisiana, 363 U.S. 1 , and United States v. Florida, 363 U.S. 121 , respectively. Louisiana, Mississippi, and Alabama based their claims in the Gulf of Mexico on historic boundaries and this Court decided against them on the facts in United States v. Louisiana, supra. All five of those States were given an opportunity to try to prove their historic boundaries, in order to determine the extent of the submerged lands to which they were entitled by the Submerged Lands Act. California has had no such opportunity. California set up as an affirmative defense in 1946 that its boundaries extended to the point it presently claims. We did not pass on this contention then, for we held that regardless of where the historic boundaries were, the United States had paramount rights in all its marginal sea. The Court today still leaves the question of the State's historic boundaries undecided, except insofar as relevant to international claims of the United States, and instead decides this case on the basis of standards of international law derived from the reasoning of the 1947 California case. Congress did not, I think, mean to readopt the standards of the California case, which the authors of the Submerged Lands Act so violently criticized, and to cut California off without any chance at all to establish ownership of these bays and channels by proving that they were within the State's historic boundaries. In order to carry out what I believe to be the congressional command in the Submerged Lands Act, I would refer the case to a Special Master to give California that chance.
[ Footnote 1 ] See Appendix A.
[ Footnote 2 ] See Appendix B, which shows Monterey Bay, one of the bays in question. California claims that all the submerged land and waters landward of the line drawn across the headlands are inland waters within the historic coastline of the State, and that its historic boundary, the outer limit of its rights under the Submerged Lands Act, extends three miles seaward of that line. The United States claims that California owns only a belt of submerged lands within three miles of the low-water mark of the mainland shore.
[ Footnote 3 ] See Appendix C. California claims all the submerged land between the line drawn along the islands from the mainland, and a belt of marginal sea three miles to seaward of that line. The United States contends that California is entitled only to a belt within three miles of the mainland shore and three miles around each of the islands.
[ Footnote 4 ] One geographic (or marine or nautical) mile equals approximately 1.15 statute (or land or English) miles. One marine league equals three geographic miles or approximately 3.45 statute miles.
[ Footnote 5 ] See S. Rep. No. 133, 83d Cong., 1st Sess. (hereafter cited as Senate Report), 21.
[ Footnote 6 ] The Master was asked also to consider what criteria were proper for measuring the ordinary low-water mark on the shore.
[ Footnote 7 ] 67 Stat. 29, 43 U.S.C. 1301-1315 (1958 ed.).
[ Footnote 8 ] 3, 67 Stat. 29, 30, 43 U.S.C. 1311 (1958 ed.).
[ Footnote 9 ] 2 (a) (2), 67 Stat. 29, 43 U.S.C. 1301 (a) (2) (1958 ed.).
[ Footnote 10 ] 2 (c), 67 Stat. 29, 43 U.S.C. 1301 (c) (1958 ed.).
[ Footnote 11 ] 2 (a) (2).
[ Footnote 12 ] 2 (b), 67 Stat. 29, 43 U.S.C. 1301 (b) (1958 ed.). (Emphasis supplied.)
[ Footnote 13 ] Ibid.
[ Footnote 14 ] The constitutional power of Congress to enact the Submerged Lands Act was upheld in Alabama v. Texas, 347 U.S. 272 .
[ Footnote 15 ] S. J. Res. 20, 82d Cong., 2d Sess. For a summary of earlier proposed legislation dealing with submerged lands, see United States v. Louisiana, 363 U.S. 1, 6 , n. 4.
[ Footnote 16 ] Message from the President, May 29, 1952, S. Doc. No. 139, 82d Cong., 2d Sess.
[ Footnote 17 ] Id., p. 2.
[ Footnote 18 ] S. J. Res. 13, 83d Cong., 1st Sess. A substantially identical bill, H. R. 2948, 83d Cong., 1st Sess., was introduced in the House.
[ Footnote 19 ] 67 Stat. 29. (Emphasis supplied.) The latter clause, dealing with the outer Continental Shelf, was added to the original bill in committee.
[ Footnote 20 ] Hearings before the Senate Committee on Interior and Insular Affairs on S. J. Res. 13 and Other Bills, 83d Cong., 1st Sess. (hereafter cited as Senate Hearings), 31-32. (Emphasis supplied.)
[ Footnote 21 ] Senate Hearings 49.
[ Footnote 22 ] Id., 34.
[ Footnote 23 ] Id., 512. Unlike the Truman Administration, the Eisenhower Administration supported legislation to grant mineral rights in submerged offshore lands to the adjacent States.
[ Footnote 24 ] Brief of the State of Texas, United States v. Louisiana, 363 U.S. 1 , p. 50.
[ Footnote 25 ] See Senate Report 14.
[ Footnote 26 ] Senate Hearings 1378 (Senator Cordon). Compare United States v. Louisiana, 363 U.S. 1, 33 .
[ Footnote 27 ] Id., 1053 (Deputy Legal Adviser Tate). Compare United States v. Louisiana, 363 U.S. 1, 30 -32.
[ Footnote 28 ] Id., 926. Attorney General Brownell suggested that a line be drawn on a map as part of the bill. He said that if the Committee tried "to describe in words bays or other characteristics of the coast, unnecessary litigation will almost surely result." Ibid.
[ Footnote 29 ] Senate Hearings 1304.
[ Footnote 30 ] Id., 1378.
[ Footnote 31 ] Id., 1383.
[ Footnote 32 ] Id., 1384.
[ Footnote 33 ] Ibid.
[ Footnote 34 ] Id., 1385.
[ Footnote 35 ] 99 Cong. Rec. 2746.
[ Footnote 36 ] Ibid.
[ Footnote 37 ] Id., 2634.
[ Footnote 38 ] Id., 2744. (Emphasis supplied.)
[ Footnote 39 ] Id., 2830.
[ Footnote 40 ] Senate Report 2. (Emphasis supplied.)
[ Footnote 41 ] Id., 18. (Emphasis supplied.)
[ Footnote 42 ] Senate Hearings 1211-1229.
[ Footnote 43 ] The Committee Report also reprinted the favorable report of a Senate Committee during a previous session of a bill which the Committee said was "identical in substance with Senate Joint Resolution 13 as introduced." Senate Report 49. That earlier report, S. Rep. No. 1592, 80th Cong., 2d Sess., as quoted, criticised the California decision for creating great uncertainty as to what areas would be "inland waters" within the reasoning of the opinion. Under the federal-external-sovereignty reasoning of the California case the Committee saw no clear answer to such questions as:
[ Footnote 44 ] Senate Report 18.
[ Footnote 45 ] See infra, p. 212. "[T]he sponsors understood this Court to have established, prior to the California decision, a rule of state ownership itself defined in terms of state territorial boundaries . . . ." United States v. Louisiana, 363 U.S. 1, 19 -20.
[ Footnote 46 ] Senate Hearings 1383 (Senator Cordon).
[ Footnote 47 ] 99 Cong. Rec. 2984. (Emphasis supplied.)
[ Footnote 48 ] Senate Report 18, supra, n. 44.
[ Footnote 49 ] 99 Cong. Rec. 4115.
[ Footnote 50 ] Id., at 4114.
[ Footnote 51 ] Ibid.
[ Footnote 52 ] 2 (b), 67 Stat. 29, 43 U.S.C. 1301 (b) (1958 ed.).
[ Footnote 53 ] See, e. g., 99 Cong. Rec. 2917, 2975-2977, 3040, 3273, 3336-3337, 3381, 3549, 3552-3553, 3655, 3885-3886, 4085.
[ Footnote 54 ] Compare the Outer Continental Shelf Lands Act, 67 Stat. 462. 43 U.S.C. 1331-1343 (1958 ed.), passed the same year, claiming for the United States "jurisdiction, control, and power of disposition" of all submerged lands seaward of the area granted the States in the Submerged Lands Act.
[ Footnote 55 ] 99 Cong. Rec. 4115.
[ Footnote 56 ] Ibid.
[ Footnote 57 ] Ibid. (Emphasis supplied.)
[ Footnote 58 ] See, e. g., Senate Hearings 48-49.
[ Footnote 59 ] 99 Cong. Rec. 2746.
[ Footnote 60 ] Id., 3039.
[ Footnote 61 ] Id., 3051.
[ Footnote 62 ] Senate Hearings 48. (Emphasis supplied.)
[ Footnote 63 ] Id., 48-49. (Emphasis supplied.)
[ Footnote 64 ] Id., 50-51.
[ Footnote 65 ] 99 Cong. Rec. 4175. See also id., 4477, 4478 (remarks of Senator Daniel).
[ Footnote 66 ] Id., 4240. Senator Douglas said that his amendment was aimed at "preventing coastal States from pushing their coastal boundaries out to a line along the outer shores of remote islands and claiming everything in between." Id., 4242.
[ Footnote 67 ] Id., 4241.
[ Footnote 68 ] Id., 4242. An earlier attempt by Senator Douglas and others to strike from the bill reference to the historic boundaries of the States when they entered the Union, and substitute a limitation based on the marginal waters claimed by the Federal Government [381 U.S. 139, 205] under international law, had also failed. See 99 Cong. Rec. 3957-3960, 4114. Senator Cordon had objected that the "net result" of the amendment "would be that an arbitrary 3-mile limit would be established, rather than to follow the philosophy of the joint resolution itself. The resolution provides that the limit be the statutory boundary with which a State entered the Union, or as such boundary may have been subsequently approved by an act of the Congress." 99 Cong. Rec. 4106.
Several similar attempts by opponents of the bill to amend it to restrict the States to a belt within three miles of their mainland shores also failed. Senator Monroney introduced an amendment to limit the area restored to the States to three miles seaward of the low-tide mark on the shore. 99 Cong. Rec. 4157. Senator Long, a supporter of the bill (which already contained the two changes which the Court says were fundamental) protested:
[ Footnote 69 ] Senate Report 2.
[ Footnote 70 ] Senate Hearings 1384 (Senator Daniel).
[ Footnote 71 ] Id., 1304 (Senator Cordon).
[ Footnote 72 ] 99 Cong. Rec. 4115 (Senator Holland).
[ Footnote 73 ] Id., 4361.
[ Footnote 74 ] H. R. 2948, 83d Cong., 1st Sess. See H. R. Rep. No. 215, 83d Cong., 1st Sess. (hereafter cited as House Report), 3.
[ Footnote 75 ] H. R. 4198, 83d Cong., 1st Sess.
[ Footnote 76 ] Hearings before Subcommittee No. 1, House Committee on the Judiciary, on H. R. 2948 and Similar Bills, 83d Cong., 1st Sess., 219-220.
[ Footnote 77 ] House Report 14.
[ Footnote 78 ] 99 Cong. Rec. 2504.
[ Footnote 79 ] Id., 2567.
[ Footnote 80 ] Id., 4897.
[ Footnote 81 ] Ibid. (Emphasis supplied.)
[ Footnote 82 ] Article XII of the California Constitution of 1849, approved when the State was admitted to the Union (Act of Sept. 9, 1850, 9 Stat. 452), provides:
[ Footnote 83 ] Reproduced in part in Appendix D, infra.
[ Footnote 84 ] The brief of the United States Attorney, filed sub nom. People v. Adams, is reprinted as Appendix 3 to the Brief for the State of California in the Proceedings Before the Special Master, pp. 6-22. [381 U.S. 139, 214]