Naturally, as a State we feel that Indiana is perfectly capable of administering its public trust in navigable waters and the lands underlying them. At least it has been doing so for many years during which the Federal Government has exhibited no interest in them. It is only natural that the State of Indiana should desire to preserve its income from minerals in submerged lands.

Of course, that is considering from the proprietary angle.

It has been the experience of Indiana that the royalties derived from the removal of minerals from its lands can only result from constant vigilance in preventing unlawful removal without permission. It should be apparent that the conservation department of the State, with its staff of employees, constantly patrolling the waters for the enforcement of its conservation laws and with its more intimate knowledge of local activities and conditions can exercise this constant vigilance without the creation of a separate and expensive administrative machinery.

The Federal Government, on the other hand, having no such staff must either create such a policing organization extending throughout the country or suffer the loss of much revenue through poaching. From the standpoint of governmental efficiency State administration is more desirable.

In that, I might interpolate that we have a good example of that now where someone has been removing gravel from the White River about 30 miles below Indianapolis, and is removing it in great quanti

ties.

As a State, we presently have a suit to file to enjoin the removal of that gravel.

Concluding, we feel that Senate bill No. 1988 provides the best permanent solution to the controversy, and should be enacted by Congress.

Senator DONNELL. Was that suit filed quite promptly after the removal of the gravel?

Mr. FOUST. It was brought quite promptly. As soon as it was brought to our attention; yes.

Mr. WOODWARD. I call your attention to the language of the Supreme Court in the Illinois Central Railroad Company case (146 U. S. 367), involving as you know, the ownership of filled-in land in Lake Michigan on the waterfront of the city of Chicago.

In that case, the Court said:

* *

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 and subject also to the paramount rights of Congress to control their navigation, and so forth.

Then quoting further from the same opinion:

We hold, therefore, that the same doctrine as to the dominion and sovereignty over and ownership of land under the navigable waters of the Great Lakes applies, which obtains at the common law as to the dominion and sovereignty over and the ownership of lands under tidewaters on the borders of the sea, and that the lands are held by the same right in one case as in the other, and subject to the same trusts and limitations.

In view of that pronouncement of the law in the Illinois-Central Railroad case, is it your opinion that the State of Indiana has any right in the submerged lands of Lake Michigan since the decision was handed down in the California case?

Mr. FOUST. May I answer that this way, that I think whatever rights the State of Indiana-and I am going to say this, too-that the State of Indiana has always assumed that it owns the bed of Lake Michigan out to the State borders, not only because of the doctrine of riparian

ownership or marginal sea ownership, but also because the State boundaries actually do go that far.

Since that time, however, and because of the language used in the case, and because the paramount-rights doctrine fundamentally appears to be based upon that national defense and foreign commerce, we have felt that with one extension to that, it could be applied to the bed of Lake Michigan.

For that reason we have felt that the title has been clouded, and should be cleared.

Mr. WOODWARD. What is the exception in your peculiar circumstances that causes you to draw a distinction between Lake Michigan and the ocean front in California?

Mr. FoUST. I am not sure that it is an exception. It may be just a difference in fact. The situation is that there was a compact with Congress at the time of the admission of the State to shorten the boundaries down and extend them in that little angle into Lake Michigan.

That may be a difference in fact which doesn't create the exception. M. WOODWARD. Did not the State of California also have its constitution approved by an act of Congress which fixed its boundary? Mr. FoUST. I think it did; yes.

Mr. WOODWARD. Then there would be no distinction in that fact, and in what Indiana did, would there, as a matter of law?

M. Fot. T. I doubt if there is an exception as a matter of law. Yes; I think I would be inclined to agree with you there.

Senator MOORE. All right, sir. That is all.

(The prepared statement of Mr. Foust follows:)

STATEMENT OF CLEON H. FOUST, ATTORNEY GENERAL, STATE OF INDIANA

On behalf of the State of Indiana, we desire to submit the following memorandum for consideration by your subcommittee. We ask that this memorandum be made a part of the record in the hearings by your subcommittee on the above bill.

SUMMARY

1. Although the submerged lands to which the State of Indiana claims title cannot be enumerated with the particularity which would seem desirable, the following information can be given with reasonable acuracy:

(0) Lake Michigan lands: Indiana has a shore line of 42 miles on Lake Michigan. By the acts of Congress establishing the borders of this State, the northern and western borders extended into Lake Michigan until they intersect, thereby incorporating into the State of Indiana approximately 147,200 acres.

(b) Inland waters: There are approximately 179,200 acres of submerged lands within the State including all lakes, rivers, and streams. Of course, it is impossible to say definitely which were navigable at the time of the admission of Indiana into the Union. A large part of the Wabash and White Rivers were navigable in fact. The extent to which other rivers such as the St. Joseph, Elkhart, Maumee, Eel, Kankakee, Whitewater, and others were navigable has never been determined. Undoubtedly, however, some portions of the former rivers were in fact navigable and usde for navigation. The same may be true of some of the larger inland lakes in the northern part of the State. At the present time there is litigation involving the navigability of the Western Fork of White River near Indianapolis.

2. From the time of its admission into the Union as a State Indiana has exereised jurisdiction and ownership of its known navigable waters and at the present time is receiving royalties for the production of sand, gravel, and oil from the soil underlying these waters. Last year the revenue from oil royalties was $12,559.75. The revenues from sand and gravel were $42,167.01 and from coal $3,917.80. appendix A for list of oil leases and statutory references.

73335-48-23

See

3. Whatever the language of the decision in the United States v. California and however the particular situation there presented might be limited in its specific application by incumbent executive departments, the extensive discussion of that case and the varied interpretations placed on it, together with the possibility that it presages an extension of the paramount-rights doctrine to other waters such as the Great Lakes and the inland streams, creates a cloud on the State of Indiana to submerged lands. This cloud on the State's title may operate to embarrass the State in obtaining the benefit of ownership of these waters.

4. Speaking solely for Indiana, it is therefore earnestly submitted that Senate bill No. 1988 should be adopted in order to eliminate any question of the extension of the paramount-rights doctrine to inland waters and to set at rest any question concerning the historical ownership of submerged lands by the State of Indiana. We attach here a more complete memorandum detailing and supporting the points here summarized.

MEMORANDUM OF INFORMATION SUPPORTING THE STATEMENT OF THE STATE OF INDIANA IN REGARD TO SENATE BILL 1988

I. The ordinance of Congress of July 13, 1787, concerning the Northwest Territory, divided the Northwest Territory into three proposed States, one of which, the present State of Indiana, in approximately its present width extended to the Canadian border.

By act of Virginia of December 30, 1788, this division of territory was affirmed and ratified.

However, upon admission of the State of Indiana to the Union, the new State, at the request of the Congress, voluntarily agreed to establish its northern boundary as an east-and-west line drawn through a point 10 miles north of the southern extreme of Lake Michigan; and the enabling act of Congress described the western and northern boundaries of Indiana as follows:

* * on the west, by a line drawn along the middle of the Wabash, from its mouth to a point where a due-north line drawn from the town of Vincennes would last touch the northwestern shore of the said river; and from thence, by a due north line, until the same shall intersect an east-and-west line drawn through a point 10 miles north of the southern extreme of Lake Michigan; on the north, by the said east-and-west line, until the same shall intersect the first-mentioned meridian line, which forms the western boundary of the State of Ohio: Provided, That the convention hereinafter provided for, when formed, shall ratify the boundaries aforesaid; otherwise they shall be and remain as now prescribed by the ordinance for the government of the territory northwest of the River Ohio

*

It is thus apparent that by solemn compact between the State of Indiana and the Congress of the United States the boundaries of the State of Indiana extend into and include an area of Lake Michigan.

II. Shortly after admission to statehood, the General Assembly of Indiana began to exercise jurisdiction over the rivers and streams of the State. In 1821 a large number of rivers were declared to be public highways. Thereafter throughout the flatboat era and the era of the canals, the State exercised jurisdiction over these rivers and sought to improve them for navigation. Millions of dollars were spent by the State on the Wabash and Erie Canal and on other canals within the State. Within the decline of river traffic, State activity subsided to some extent.

But shortly after the turn of the century the State became aware of the value of the natural resources being withdrawn from the beds of its navigable streams. At that time the principal items were sand and gravel. Through its conservation department the State issued permits upon a royalty basis for the taking of sand and gravel from the bed of Lake Michigan and from the beds of the navigable streams. The revenue from oil leases executed prior to March 13, 1947, becomes a part of the revolving fund in the division of lands and waters of the department of conservation. From that revolving fund this income may be used in the maintenance of the Indiana State park system. All of the royalties shown herein are derived from leases executed prior to the date above mentioned. The revenue from leases executed subsequent to March 13, except for administrative expense, becomes a part of the general fund of the State. The revenue from coal, sand, gravel, and other mineral permits becomes a part of the rotary fund for the division of lands and waters.

With the development of oil and gas in the southwestern part of the State of Indiana there is every expectation that the amount of revenue to the State will increase.

Pursuant to chapter 91 of the Acts of the General Assembly of Indiana for 1907, as amended in 1915, section 62-701 et seq., Burns 1933 Revised Statutes, 998 acres of land have been reclaimed from Lake Michigan by various corporations and patents therefore received from the State. The companies which have built a large part of their industrial plants on this "made land" are: At Gary, Carnegie-Illinois Steel plant, American Sheet & Tin Plate Co.; at East Chicago, Inland Steel Co., Youngstown Sheet & Tube Co.; at Hammond, Chicago District Generating Co.; at Michigan City, Northern Indiana Public Service Co.

The cities of Hammond and Whiting have filled in lake-front land for park and waterworks purposes and the city of East Chicago is planning an extensive park development on filled-in land.

Completely accurate figures are not available but it is estimated that the value of industrial plants situated on filled or riparian lands is approximately $100,000,000. All of this investment is dependent upon the title of the State of Indiana to submerged lands under navigable waters. The development has proceeded with the knowledge of the United States Government and the express approval of the War Department which issues permits from the standpoint of navigation. See Wisconsin v. Illinois (278 U. S. 367, 411-414 (1928)). In addition there are harbor installations at Michigan City, Indiana Harbor, Gary Harbor, and Buffington Harbor, for Indiana statutory authority to patent reclaimed Lake Michigan lands see appendix B.

III. The decision of the United States Supreme Court in United States v. California (67 S. Ct. 1658 (1947)), either establishes a new doctrine of ownership or is not clear. It has provoked discussion throughout the country and hardly two lawyers can agree as to its full implications. It did not expressly overrule the long line of decision establishing title of the States to the beds of navigable inlaud streams and lakes. However, the paramount-rights doctrine there enunciated is based on the Federal war power and Federal control of foreign relations and might be applied to inland waters with very little extension. Whether extended or not it will forever remain a cloud upon the title of the States. It has been said that the inland States need not fear an extension of the doctrine by Federal executive and administrative officials. That, of course, depends upon the state of mind of the then incumbent Federal officials.

That the Attorney General of the United States apparently considered it as a doctrine of ownership seems apparent from his letter to the President of the United States, dated October 7, 1947, in which he said:

* * The States concerned and those who have operated under State law should be relieved from any liability for damage and trespass for any past development of the submerged lands.

"Congress is now in a position to determine how the assets which have been declared to be the property of the United States shall be administered."

The result of this decision is that doubt has been cast on the title of the States to the submerged lands under inland navigable waters and particularly under the Great Lakes. Those who invest money in oil wells do not risk that money on insecure or doubtful titles. Those who wish to make expensive installations on reclaimed lands along Lake Michigan will not wish to do so upon a clouded title. IV. From the standpoint of Federal-State relationship, the controversy over submerged lands has served to generate discord on both sides. The individual States suspect that the Federal claim must be predicated on the theory that States are incapable of managing a public trust in submerged lands under navigable waters. The Federal officials seem to consider that the States are exhibiting a rather exaggerated States'-rights attitude. But irrespective of that every present indication is that unless the title to submerged lands is definitely settled the controversy can only lead to endless confusion and litigation. Naturally as a State we feel that Indiana is perfectly capable of administering its public trust in navigable waters and the lands underlying them. At least it has been doing so for many years during which the Federal Government has exhibited no interest in them. It is only natural that the State of Indiana should desire to preserve its income from minerals in submerged lands.

It has been the experience of Indiana that the royalties derived from the removal of minerals from its lands can only result from constant vigilance in preventing unlawful removal without permission. It should be apparent that the conservation department of the State, with its staff of employees constantly patrolling the waters for the enforcement of its conservation laws and with its more intimate knowledge of local activities and conditions can exercise this constant vigilance without the creation of a separate and expensive administrative machinery. The Federal Government, on the other hand, having no such staff,

must either create such a policing organization extending throughout the country or suffer the loss of much revenue through poaching. From the standpoint of governmental efficiency State administration is more desirable.

We feel that Senate bill No. 1988 provides the best permanent solution to the controversy and should be enacted by Congress.

(The appendixes referred to are on file with the committee.)

Mr. JOHNSON. Mr. Chairman and members of the committee, at this time I would like to present Mr. Nathaniel B. Bidwell, special assistant to the attorney general of Massachusetts.

He appears here in two capacities, as representative of the State Governor and the attorney general, also as a member of the National Water Conservation Conference.

Mr. BIDWELL. Mr. Chairman and members of the committee, before I proceed with my statement, just before luncheon Mr. George J. Leary, the assistant corporation counsel of Boston, handed me a copy of his presentation and asked me to present it to the committee and ask that it be filed, because he and his senior, who is corporation counsel of the city of Boston, I understood were called back to Boston, although they had been here several days.

Senator MOORE. That will be placed in the record.

The statement of Mr. Leary is as follows:

STATEMENT OF GEORGE J. LEARY, SPECIAL ASSISTANT CORPORATION COUNSEL FOR BOSTON, MASS.

My name is George J. Leary. I represent the city of Boston as special assistant corporation counsel. I am here today asking your honorable committee to record the city of Boston as being in favor of Senate bill No. 1988.

You may properly inquire as to the necessity of a municipality being represented at a legislative hearing where the attorney general for the Commonwealth, through has special assistant, has so ably presented to your committee his views in support of legislation on this subject matter.

I shall try to point out briefly why the people of Boston are so vitally interested. Boston is one of the oldest municipalities in the country. It obtained its charter from the State legislature in 1822. What was once a portion of Boston Harbor is now the South Bay section of Boston and all of the water-front property has been built on filled land.

What was originally the banks of the Charles River is now the Back Bay of Boston, the most valuable section of the city with respect to taxable property. Both of our railroad terminals, and many of our large buildings, including the customhouse, the Federal building, the public library, and the Copley Plaza Hotel are all built on filled land.

The areas that I have described represent about one-half the total are of the city of Boston. The land and the buildings thereon are assessed for over $600,000,000, and when you consider that the total assessed valuation of all the taxable property in the city amounts to $1,350,000,000, you can appreciate how important this legislation is to Boston.

If there be a doubt as to the title of this land, then, of course, such doubt would create a cloud on the title. What would happen if the right of the municipality to tax these properties was questioned? If there be a cloud on the title you may have someone seeking to have Federal Government rights paramount to and superior to the rights of those who are grantees of the State.

In this petition for legislation you are not being asked to have the Federal Government actually convey something to the States which they do not now have. You are asked to confirm and establish the titles of the States to lands and resources in and beneath navigable waters within State boundaries and to provide for the use and control of said lands and resources.

For these reasons, and others too, we move the passage of this bill. Out of the California decision untold confusion has arisen and will continue in these United States. Its interpretation as it may be viewed in the field of law challenges the reasoning of over 175 years of jurisprudence, and may very easily do violence to our American way of life.