It is not believed that this exploitation could be successfully stopped by merely setting aside such petroleum areas as defensive sea areas under the provisions of the foregoing act of May 22, 1917, since the primary purpose of that act seems to be to give protection and defense to "any submarine mine or torpedo or fortification or harbor-defense system owned or constructed or in process of construction by the United States," and the conservation of petroleum products in the submerged lands is considered too remote a purpose to be sustained as a direct defensive aid under the circumstances. It would, however, be proper and legal for the Congress to enact somewhat similar legislation expressly declaring that the conservation of the petroleum deposits in the submerged lands within the 3-mile limit is essential for the purposes of national defense and maintenance of the Navy, and authorizing their reservation and appropriation for those purposes.

It is, therefore, recommended that the joint resolution, Senate Joint Resolution 208, be amended by striking out the word "That", at beginning of line 3, page 2, and inserting in lieu thereof the following:

"That the conservation of petroleum deposits underlying the submerged lands aforesaid are hereby declared to be essential for purposes of national defense and future maintenance of the Navy, and the President is hereby authorized, from time to time, as may be deemed necessary in his discretion, to reserve, set aside, and appropriate any and all of such submerged lands as are considered to contain petroleum deposits, for the purpose of establishing naval petroleum reserves thereon, subject to the same control and limitations as are provided for other naval petroleum reserves; and that.”

As thus amended, the joint resolution, Senate Joint Resolution 208, if enacted, would accomplish the desired purpose, and therefore its early enactment is recommended.

Respectfully,

CLAUDE A. SWANSON.

Mr. DANIEL. Now, this is from the same hearing, the same report. Mr. WOODWARD. Give the pages, please, General.

Mr. DANIEL. Yes, sir; pages 54 to 59, this letter from Mr. Swanson. And from the same committee report, I would like to introduce in evidence the full statement of this Navy Judge Advocate, Philip Buettner, presenting a brief on exactly the same contentions as Judge Hobbs and Secretary Swanson. That will be found on pages 258 to 260. (The statement referred to is as follows:)

ADDITIONAL STATEMENT BY PHILIP BUETTNER, PRINCIPAL ATTORNEY, OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE NAVY

During my appearance before your committee on February 23, 1938, to explain the Secretary of the Navy's letter of February 2, 1938, addressed to the chairman of your committee my testimony was cut short by the desire of your committee to hear from a representative of the Department of Justice on the question as to who has title to the submerged lands along and adjacent to the costs of the United States. I have listened to the testimony that was ably and forcibly presented here in most glorifying and oratorical terms in opposition to Senate Joint Resolution 208 on behalf of various coastal States by their representatives composed of men of high official standing and great ability. Their pleas were eloquent and of considerable public interest, but they failed to disprove the views of the Navy Department as expressed in its Itetter of February 2, 1938, above referred to.

The views thus expressed in the Secretary's letter are amply supported by the legal authorities cited. However, in the testimony submitted in opposition to Joint Resolution 208 the Navy Department's position has been misrepresented so that it is feared your committee may not realize its true significance. Therefore, the following brief explanatory statement is submitted for the record in the hope that it will be helpful to your committee. For more complete details your attention is directed to the letter itself.

Now, briefly, on the question of title to the submerged lands, it is our position that the title to the submerged lands of the oceans is not a title in fee. If anything, it is a title in common vested in the public of the world represented by the sovereign nations of the world. Within the 3-mile belt along and adjoining the coasts of the United States the other sovereign nations by the acceptance of the

law of nations have quitclaimed their sovereignty and the title of their people. Therefore, when the 13 original States obtained their freedom, they each became separate full sovereign States, and the title to the submerged lands in the 3-mile belt became vested in the public of those States to be held by the States in trust. Upon the adoption of the Constitution of the United States the original States by that document conferred national sovereignty upon the United States by specifically granting to the Congress certain national powers, among which are the power to regulate commerce, to provide for national defense, and to provide and maintain a Navy. The States retained only municipal sovereignty in the submerged lands in the tidewaters off the coasts, and the title which they continued to hold in trust became encumbered with the paramount rights of the United States that were surrendered in the foregoing grants of powers to Congress, included among which are, as stated above, the power to regulate commerce, to provide for national defense, and to provide and maintain a Navy.

Each State admitted thereafter subscribed to that Constitution and conse quently was admitted on an equal footing, retaining only municipal sovereignty, regardless of its previous status, that is, whether it was a part of the public domain, whether it was acquired by purchase, or whether it existed as an independent republic. They all conferred those certain expressed powers upon the Congress which it may exercise as a Nation in the interest of the public of the United States; and the title to the submerged lands which they hold in trust is likewise encumbered by those powers that were surrendered by the Constitution. Therefore it seems clear that the title to the submerged lands that is held by the several States in trust is in its essence similar to that of a riparian owner which has been defined as a qualified, bare, and technical one, not at his absolute disposal, as is his upland, but to be held at all times subordinate to such use of the submerged lands and of the waters flowing over them as may be consistent with or demanded by the public rights (Scranton v. Wheeler, 179 U. S. 141, 163). In other words, the States may be said to hold such qualified title to the submerged land in trust, subject at all times to the use of the United States of the submerged lands and their products and the overflowing waters for any of the purposes for which powers were surrendered to Congress by the Constitution. These matters are more fully treated in the Secretary's letter of February 2, 1938, to which reference is made.

The question of title is not controlling since the Government's paramount rights in the navigable waters and the submerged lands underneath are not dependent on its title thereto. It was early held by the Supreme Court that the control and use of navigable waters and submerged lands are attributes of sovereignty and no claim of title can defeat the exercise of the proper and prescribed sovereign rights. (Pollard v. Hagan, 3 Howard 238.) Hence Congress in the exercise of its national sovereign rights can authorize their control and use for any of the national purposes specified in the Constitution, and the State may exercise municipal sovereign rights until Congress intervenes and assumes control under its paramount power. The control and use of navigable waters and submerged lands for either national sovereign or municipal sovereign purposes may include the taking of fish, oysters, sponges, and, gravel, petroleum, or other products from the submerged soil.

Some of the States may be, and probably are, within their proper municipal rights in drilling for and disposing of petroleum products in the submerged lands for the benefit of their citizens and there seems to be no way to stop them unless Congress intervenes under its paramount power on behalf of all of the people of the United States and takes steps to conserve the petroleum products for national purposes set forth in the Constitution. It will not do to wait until there is a national emergency. Like building of battleships, the national defense and maintenance of the Navy must be provided for in advance so as to be available when hostilities occur.

Under their municipal sovereignty these States cannot exercise exclusive control and use of the navigable waters and submerged lands. Their control and use are concurrent with those of the United States, but the Congress may intervene and assert its paramount and exclusive control and use when it sees fit. This is true as to taking fish from the waters and oil from the soil. Congress can prevent both in the interest of the general public.

The proposed amendment of Senate Joint Resolution 208, if enacted. is merely an assertion of the Government's rights by the Congress representing all of the people of the United States. It is not even in the smallest degree an interference with the municipal rights of the coastal States concerned. The reservation of naval petroleum reserves would be "subject to any superior

right, title, or interest of any person, partnership, corporation, municipal or local subdivision, or State, other than the United States." It recognizes and excepts all rights superior to those of the Government and it operates only on that which is decided in appropriate judicial proceedings to be its own right. This is far different from the testimony submitted by the opposition which it is feared may have created a wrong impression with the committee.

Similarly, the contention that the passage of this legislation would cast a cloud upon submerged lands is too ridiculous to receive serious consideration. The status of the submerged lands today is definitely fixed by the powers granted to the Congress in the Constitution. These powers may be exercised at any time and that fact is known, or is presumed to be known, by all parties who occupy or use such submerged lands. How can the actual exercise of the power by Congress increase the cloud already upon the use and possession of the submerged lands? It is well settled by the courts that persons who place improvements on such submerged lands do so with notice that such improvements may at any time be destroyed, without compensation therefor, in the exercise of a governmental power under the Constitution (Greenleaf Johnson Lumber Co. v. Garrison, 237 U. S. 251). They have notice of the Government's paramount right in the matter. The Secretary of the Navy's letter of February 2, 1938, gave a résumé of cases where the Government by authorization so asserted its paramount right. This phase of the matter was amplified and more fully explained by Commander H. Biesemeier, United States Navy, in his testimony before your committee.

Due to the qualified title in the submerged lands which differs from the complete fee title of uplands the courts generally do not recognize private property rights therein as against the Government. In uplands where private property is taken for public use just compensation is provided therefor, but it is not so when so-called property in submerged lands is taken or destroyed, which again shows the substantial right and interest of the Government in the submerged lands. The fact is that the Government has a perpetual easement for the use of those submerged lands for the constitutional purposes referred to, and it may use them exclusively whenever Congress so directs. Whether Congress elects to use them or not, the right that exists to control and use them constitutes a definite encumbrance on and interest in those submerged lands even though they are not actually taken under control and use. Of course, until Congress, as the representative of the people of the United States, by some act authorizes the executive department of the Government to occupy and use such submerged lands for a constitutional purposes, it is extremely doubtful whether any kind of a suit on behalf of the Government could be successfully maintained in the courts. The powers in the Constitution referred to were granted to Congress and not to any executive department.

The enactment of the proposed amended draft of Senate Joint Resolution 208 authorizing the establishment of naval petroleum reserves is recommended as a definite step in the interests of national defense and in the general public interest. The opposition has made extravagant claims and has gone to great lengths to cast doubt upon the Government's rights in this matter. We would welcome an opportunity to have these rights tested and determined in proper judicial proceedings. This, it seems, can only be accomplished after congressional authorization.

Senator DONNELL. On the point of the comparative amount of acreage or mileage involved in this 3-mile belt, as compared to the entire area of the United States, as shown on this map, I believe you said that the coastal area, the 3-mile coastal area, is 26,000 square miles?

Mr. DANIEL. That is 3 miles, except on the Gulf Coast, where it is 3 leagues.

Senator DONNELL. That amounts to 26,608 square miles?

Mr. DANIEL. Yes, sir.

Senator DONNELL. Do you know what the area of Missouri is?

Mr. DANIEL. No, sir; I do not.

Senator DONNELL. I think it is somewhere around 90,000 square miles. I might be off on that considerably, of course, but if it be that, the coastal area, which the Government would here be giving to the

States, as I see it, under this S. 1988 would be pretty close to somewhere between 25 and 30 percent of the area of that State, which would be presented by the United States Government, as I see it, to these coastal States. So that is a pretty good-sized portion of land in itself; is it not?

Mr. DANIEL. Well, it is not half as much as is inside the Great Lakes in the State of Michigan.

Senator DONNELL. That may well be true. But I think if the Government is giving away pieces of land in the aggregate of somewhere in the neighborhood of 25 or 30 percent of the entire area of the State of Missouri

Mr. DANIEL. I see Missouri is listed here as 69,000 square miles.

Senator DONNELL. Well, if it is 69,000 square miles, 26,600 square miles is pretty close to 40 percent; about 371⁄2 percent, I should say roughly, without figuring it accurately.

Senator MOORE. Practically all of Missouri south of the river, I suppose or north.

Senator DONNELL. And we might take all our good land north of the river, also. It would be about three-eighths, say, of the State of Missouri. I do not think that is quite de minimis. Would you think so, General?

Mr. DANIEL. Not the way you have stated it, Senator. If that ended it, and I did not say anything more, you would certainly be right. But, Senator, I have really been impressed with everything about this hearing. There was nothing that hurt my feelings in this hearing, except that one thing.

Senator DONNELL. What is that, General?

Mr. DANIEL. That is, your talk about "giving" or "donating" to the States. Now, I hate to get back on that, but you have gotten back on it. And here is the thing to remember: Submerged land is not inside of Missouri, except that which is under your navigable waters. This land that you talk about that is covered, out below low tide, is within the boundaries-26,000 square miles-the original boundaries of our States.

Senator DONNELL. Including California, as to which the record says California does not own the land.

Mr. DANIEL. But that is the only State so far. Now, if you want to talk about donating or giving something to California, I will tell you the truth of it, Senator. They have had it for 98 years, and they have it today, and possession being, as we have talked about, ninetenths of the law, you are giving them about one-tenth. Their legal title is all you would be confirming in that. You would be giving something that they have had for 98 years, and I would not call that a donation or a gift, and the greatest value that has been put on this whole area, the greatest estimate of possible value on this whole area, is less than half of what in another building the same administration favors giving to foreign countries of Europe.

Senator DONNELL. That is how much?

Mr. DANIEL. Two and a half billion is the highest estimate I have heard on the value of these lands; and I understand this first installment is over five billions, isn't it?

Senator DONNELL. Two and a half billion dollars is your estimate of the value of these coastal lands?

Mr. DANIEL. No, sir; that is not my estimate. I say that is the highest estimate I have heard here by the Government.

Senator DONNELL. That is the highest that you have heard. And included in that valuation is the value of the oil which, as we all realize, I take it, is of tremendous value, from the standpoint of national defense. That is true, is it not?

Mr. DANIEL. Yes, sir.

Senator DONNELL. Now, on the point of whether it is a donation or not, we just go round and round on it, but the fact is that the Court has stated that California is not the owner of the land. That is true, is it not? And after S. 1988 is passed, it will be the owner of something; that is true, is it not, General?

Mr. DANIEL. It will then have bare legal title to what it now has possession of, and has had for 98 years.

Senator DONNELL. And it will not have paid anything to the Government for the passage of S. 1988. That is true, is it not?

Mr. DANIEL. No more than what the European countries are paying to us for the $5,000,000,000 that we are going to give them, or donate to them.

Senator DONNELL. There is nothing that California is going to pay. Mr. DANIEL. In cash dollars and cents?

Senator DONNELL. Or any of these States? Are any of these States going to pay anything, under the terms of S. 1988, for what they get? Mr. DANIEL. No new consideration.

Senator DONNELL. They are not going to pay anything in consideration of the passage of S. 1988. That is true, is it not?

Mr. DANIEL. No new consideration.

Now, you know, the reason I am saying that, Senator, is that I think we have all paid good consideration for the Government being fair to us. We have given years to the service of the Government, and there are other things other than cash money that count as a consideration, to me.

Senator DONNELL. And this point about possession being ninetenths of the law: You do not mean that seriously, do you, General? That the mere fact that the State of California had possession means that nine-tenths of this statement of the Court that California is not the owner of the 3-mile marginal belt along its coast is obliterated? You do not mean that, do you?

Mr. DANIEL. No, sir. What I mean by that is that when you come to look at what is fair, and call it a gift or a donation, it is proper, I think, to look at the facts that nine-tenths, or what we call possession, they have already, and have always had it. You are giving them something they have had. You are giving them the legal title to something they have had under a good-faith claim for 98 years, and I do not think that that ought to be called a donation, in the sense in which we are giving something to the European countries. It is a different proposition.

Senator DONNELL. But the title that California has in and to these submerged lands, is zero, under the decision of the Supreme Court of the United States.

Mr. DANIEL. Under the decision of the Supreme Court, it is, and, Senator, the title that the Federal Government has to those lands is likewise zero.