(The statement referred to follows:)

STATEMENT OF HON. CHARLES H. RUSSELL, A MEMBER OF THE HOUSE OF
REPRESENTATIVES FROM THE STATE OF NEVADA

Mr. Chairman and gentlemen, in response to your invitation of February 10 to appear and be heard in support of my bill, H. R. 5228, 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, I welcome this opportunity to file with your committee a statement setting forth my reasons why I believe this measure should be enacted into law.

I fully realize that my bill, H. R. 5228, is just one of many which have been introduced by interested Members of Congress to attempt to settle once and for all the confused question of ownership of the lands beneath navigable waters. I received from the attorney general for the State of Nevada, the Honorable Alan Bible, on October 15, 1947, a letter setting forth his views, on the adversity of the decision rendered by the Supreme Court in the case of United States v. California decided on June 3, 1947. It was General Bible's opinion, and I hasten to state that I heartily agree, that “I believe that our fundamental theory of dual sovereignties and States' rights are endangered by the claim of superior Federal powers over State lands and resoruces. It is not only vital to our own State but to our whole system of State-Federal relations that Congress pass an act next session recognizing State ownership of lands beneath navigable waters within their respective boundaries and denying Federal control of such lands and resources except insofar as necessary for proper exercises of constitutionally delegated Federal powers." Nevada's Governor, the Honorable Vail Pittman, joined the governors of 43 other States in the resolution propounded at the Salt Lake City conference in July of last year, in emphasizing the need for congressional action on this subject. The resolution, a copy of which I am sure the committee has, asked Congress to pass an act recognizing State ownership. Thus these two officials of my State have taken the position that it is essential for the Congress to enact legislation which will nullify the ruling of the Supreme Court.

We people in Nevada aren't necessarily affected by the ruling of the Supreme Court if that ruling were narrowly construed and applied in the future to merely navigable waters and the title to land and resources beneath these waters. But we are vitally interested and affected by any future claim that the Federal Government might wish to exercise over lands and resources within our State if the "paramount power" over the land for some pretension purpose were exercised by some one official of the Federal Government on the theory that national defense was affected by the ownership of a copper mine, or some other metallic venture. We do not wish to see more Federal encroachment in a field which has never been known to be part and parcel of the Federal sphere.

It is my view in which I am sure the majority of my constituents will agree, that the underlying encroachment of States' rights by the Federal Government by virtue of judge-made law should be abrogated in order for assurance to be given that the Federal Government does not have a "paramount right."

It is up to the Congress, not the Court to determine "rules and regulations respecting the territory or other property belonging to the United States." It would seem to be therefore, that the enactment of legislation determining, confirming, and establishing the title of the States on this question should relieve all of us of further possibilities of the Federal Government acting in a field which is clearly outside their scope and review.

As far as national defense is concerned, I am sure that no American would think for a moment that when his country's welfare was at stake that the product of the resources would not be made available to the United States. I urge that every effort be made by the committee to grant us the opportunity to vote on this measure.

Mr. COVERT. At this time I present for inclusion in the record a memorandum, brief, and analysis by the Honorable Robert Lee Bobbitt, former attorney general of the State of Texas, and ask that it be included in the record.

Senator MOORE. It will be received and made a part of the record.

(The document referred to follows:)

MEMORANDUM, BRIEF, AND ANALYSIS BY ROBERT LEE BOBBITT, CHAIRMAN, TIDELANDS COMMITTEE, TEXAS STATE BAR, WITH REGARD TO S. 1988

The enactment of S. 1988 by the Congress of the United States will settle, once and for all, the confusion and injustices which have arisen as a result of the California decision.

I have reference to the announcement of this strange, novel, foreign doctrine that the Federal responsibilities of "national defense" and "foreign relations" confer upon the Federal Government rights equivalent to ultimate ownership of lands and resources over which these responsibilities rest.

In plain and forthright language, that is the California decision.

Its basis is universally applicable. The doctrine of the "paramount rights and powers" of the Federal Government itself applies over all lands and resources within the boundaries of the United States.

Accept that, and you have the basis of the fears, the worries, the anxieties, and the very presence of these able representatives of 46 sovereign States appearing before you. You have the bases of the resolutions of the American Bar Association, the Texas State Bar, and many others.

Of course, the doctrine is limited in its application in the California case. But it is limited there only in its application; for only the 3-mile off-shore belt was there in issue. The bases of the doctrine and the doctrine itself apply, as Mr. Justice Reed poignantly set forth, to “every river, farm, mine, and factory of the Nation." Gentlemen, those are not my words, those are the words of Mr. Justice Reed, who presumptively sat with the majority of the Court in its consultation on the case. If anyone may judge the intendment of the words of the Court, it would be a member of the Court. So that those are not alone my fears, but his fears. Those were the fears of Mr. Justice Frankfurter when he pointed to the fact that mineral deposits, "whereever they may be," may be subjected to the application of such doctrine.

This is nationalization of the natural resources industry. Oil produced from the interior United States has been the subject of "international dispute." Recall and witness the relations between the United States and Japan prior to 1941 and the many contemporary foreign relations with regard to the subject of oil and other resources.

Will "just compensation" be paid upon the application of this doctrine? There was not one word of "compensation" in the California decision. The principle announced therein that these dual Federal responsibilities confer rights equivalent to ultimate ownership is a newly announced extension of an old principle, and only within the present Supreme Court resides the knowledge as to whether "just compensation" must be paid, if a "mere property owner" or a "bare legal title" is present. Since this "paramount power" most certainly does not flow from any provision of our Federal Constitution, we are at loss to know whether its application may, in any way, be governed or limited by the provisions of that Constitution.

May I point out that the mere fact that six members of the present Supreme Court held as they did does not mean that that is the law as a matter of fact. It is simply the opinion of the six members of the Court as to what they believe the law to be. This is so indicated by these words in the majority opinion:

"As previously stated, this Court has followed and reasserted the basic doctrine of the Pollard case many times. And in doing so it has used language strong enough to indicate that the Court then believed that States not only owned tidelands and soils under navigable inland waters, but also owned soils under all navigable waters within their territorial jurisdiction, whether inland or not." I should like to point out that there is no indication that the predecessor members of the Court "ever changed their view" that submerged lands were owned by the States. And there were over 200 members of the Supreme Court that entertained that view. In plain fact, there has never been an indication to the contrary until the California decision. That statement further supports my observation that this Court is merely stating its opinion of what the law is. It is, if you please, six present Justices differing with over 200 predecessor Justices over what was the law prior to and subsequent to 1789.

If we assume for the moment that there was no square case on the question of ownership of submerged coastal lands below low tide prior to the California decision that does not detract from the fact that over 200 Justices in "many deci

sions," at least 53 cases, expressed their views as to what they thought and "believed" the law to be. The fact that they may not have had before them a case involving directly these lands cannot detract from the weight of the application of a broad principle nor the weight of their opinions. To these 200 or more opinions I should add the 244 decisions by State and Federal courts, accepting the views expressed in the 53 Supreme Court cases. Against this grand array of at least 450 American judges and justices, and two incumbent Supreme Court Justices, we have 6 Justices opining to the contrary.

If such an age-old and well-established rule as is involved in the California decision-expressed as early as 1598-may be overturned in one decision, do you not understand why I join with these officials appearing before you in expressing fear and anxiety as to the impact of this decision on State and private ownership of natural resources? Is this not emphasized when we read phrases bespeaking of a "mere property owner" and "bare legal title"? Wherein has any court ever used such disparaging language of fee title or ownership of natural resources? If such ownership of such long recognition may be dissolved by one decision, without regard to stare decisis, does not one fear the dissolution of property concepts of ownership in every "river, farm, mine, and factory of the Nation"? Is not that of what Justice Reeds speaks? Are we entering a new era of universal Federal right to ultimate ownership of the resources within this Nation?

The suggestion by some of the officials of the Federal Government that S. 1988 is a "donation," or gift, of lands and resources of the Federal Government is devoid of any real merit.

To begin with, this could not be a "donation" in the sense that it is a gift to a foreign government, like some necessary congressional legislation. For if it is a "donation" by the Federal Government, it is a "donation" by the representatives of the people to the people. I heartily state that the appearance of the local representatives of some 46 States in this hearing demonstrates readily that this is a "petition by the people" for the confirmation of the ownership of these lands in their local governments. Surely, such local representatives enjoy the familiar geographical advantage of close association with the people.

This matter is not one that has arisen overnight. It has been pending before the courts and the Congress for over 10 years and, I dare say, the people have been well informed and expressed their views to these local representatives. It is my opinion that these local representatives express the views of the people of the United States.

Moreover, under the Government sponsored S. 2165, some 90 percent of the revenues of the oil produced from these off-shore lands is, to use the Government phrase, to be "donated" to the States. The Federal Government is to retain 10 percent. Out of this 10 percent must be borne the expenses of the Federal agency to administer these off-shore lands. So that even less than 10 percent is to be retained by the Government. The representatives of the Federal Government condemn S. 1988 as a "donation," and on the other hand, espouse the principle of "donation." To these representatives of the Government it seems more a matter of degree than principle.

The ownership of such lands and resources by the several States will not interfere in the least with such necessary powers of the Federal Government in international relations and national defense. S. 1988, in fact, recognizes these powers. Ownership by littoral States for over 150 years has not precluded or interfered in any manner with such plenary powers of the Federal Government. In fact, such powers have long been recognized by the several States.

We cannot go along with the assumption by the officials of the executive branch of the Government that S. 1988 is a “donation." The very term "donation" implies a title or ownership capable of being transferred gratuitously.

The Supreme Court did state that California is not the "owner" of the lands and resources underlying the 3-mile off-shore belt, but refused, on the other hand, to declare the Federal Government to be the "owner" in equally unequivocal language. This is emphasized by the fact that the Supreme Court deliberately struck the words "of proprietorship" from the Government's proposed decree.

This doctrine of "paramount rights and powers" has always existed in matters of external sovereignty, but has never heretofore been extended to include matters of internal sovereignty, such as the ownership of lands and minerals within the territorial boundaries of the several States, and over which these powers rest.

Whether these powers shall be so extended is an important matter of policy to be decided by Congress and Congress alone, as provided by the Constitution. We must, if humanly possible, live under settled rules of law.

We cannot live under a power wherein officials may state, in a hearing such as this, that they are studying whether to sue additional States for title to submerged coastal lands, and where varying opinions may be expressed as to the applicability of these powers. The certainty or validity of title to real property has never heretofore been subjected to the varying whims or the "changing of minds" by officials of the executive branch of the Government nor subjected to a variance with the personnel of the Government. This is entirely possible under the decision in the California case. The matter should be laid at rest by the Congress in the exercise of its constitutional power and responsibility.

The Supreme Court, in effect, undertook to legislate in the California case. The Supreme Court invaded the premise of the Congress in holding that "the Federal Government has paramount rights in and power over that belt, an incident to which is full dominion over the resources of the soil under that water area, including oil," for Congress has never defined the "public lands of the United States" to extend seaward "beyond the limits of high water." This has been held many times. See Barney v. Keokuk (1876, 94 U. S. 324); Mann v. Tacoma Land Company (1893, 153 U. S. 273); Borax, Ltd. v. Los Angeles (1935, 296 U. S. 10).

It has, it is true, exercised jurisdiction over the coastal belt to regulate "seals, fishing, pollution," et cetera, but this is not an assertion of ownership by the Federal Government and may not confer rights of ownership.

The United States may acquire new territory by war, by treaty or by discovery, but, as this Court said in Fleming v. Page (9 How. 602, 615 (1850)), such acquisitions "do not enlarge the boundaries of this Union." New territory thus acquired is "not made a part of the United States" in any other way than by congressional action. (Balsac v. Porto Rico, 258, U. S. 298, 308 (1922); Dorr v. United States, 195 U. S. 138 (1904); United States v. Arrendondo, 6 Pet. 691, 711 (1832); Foster v. Neilson, 2 Pet. 253, 309 (1829)).

So that in conferring paramount rights and powers on the Federal Government within this area, the Supreme Court has, in effect, extended the boundary of those lands owned by the Federal Government. This is recognized by the Supreme Court, but not followed, in these words:

"For article IV, section 3, clause 2 of the Constitution vests in Congress 'power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.' We have said that the constitutional power of Congress in this respect is without limitation. United States v. San Francisco (310 U. S. 16, 29-30). Thus neither the courts nor the executive agencies could proceed contrary to an act of Congress in this congressional area of national power."

As to the matter of Congress changing the law, it is not by enacting S. 1988. It is exercising the right it has under the Constitution.

It is exercising the right of "selection" as upheld in the California decision. It may be pointed out that if it be urged that by the passage of S. 1988 the Congress is changing the law, Congress changes the law every time it acts. The Congress should clarify the law as discussed by the Court in the California case.

The Supreme Court of the United States did state in the California decision that "California is not the owner of the 3-mile marginal belt along its coast,” but it did not in equal and unequivocal terms hold the Federal Government to be the owner of that "belt."

The Court stated that the question before it was "whether the State or the Federal Government has the paramount right and power to determine in the first instance when, how, and by what agencies, foreign or domestic, the oil and other resources of the soil of the marginal sea, known or hereafter discovered, may be exploited."

It held that "the Federal Government rather than the State has paramount rights in and power over that belt, and incident to which is full dominion over the resources of the soil under that water area, including oil."

What did the Court mean? It did not mean "dominion" in the sense of "proprietorship" for that word was struck from the Federal Government's proposed decree. Furthermore, if it had meant "proprietorship" or "ownership," it would have so stated. In the sentence following the above-quoted holding, the Supreme Court states, "Nor can we agree with California that the Federal Government's paramount rights have been lost by reason of the conduct of its agents."

To determine squarely the holding of the Supreme Court, we must look to the "question" it stated it had before it-which Government, State or Federal, had

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the "paramount right" to "determine when, how, and by what agencies, foreign or domestic, the oil and other resources of the marginal sea may be exploited." It said nothing of who was to receive the revenues from such exploitation. Presumptively those would go to those "agencies" selected to develop the resources.

We may say, therefore, that the Federal Government used the term "dominion" in the sense of the power "to determine" or select the “agencies” to develop the resources.

S. 1988 represents a request by the several States to continue their historical development of the resources. They simply ask to be the agencies so selected. There has been no complaint as to prior development by the States. Their ability was displayed in the recent war. Certainly, no "foreign" agency should develop these local resources. The States should develop them and should be so "selected."

Moreover, there can be no “donation” to the States of these lands in the lights of this construction of the Court's opinion.

The "paramount rights" theory as applied by the Supreme Court in the California case will result in confusions at home and abroad.

Congressman Hobbs promulgated the theory that a State has only a “qualified" ownership of the inland navigable waters. Such ownership, he claims, is subject to the ownership by the Federal Government of the natural resources within said inland waters We earnestly submit that there is no constitutional basis for such theory. The States as independent nations had long claimed ownership to such inland waters and resources therein. The delegation of certain powers to the Federal Government by the Constitution is not and cannot be construed as a cession of the lands and resources underlying navigable waters. This was specifically ruled in United States v. Bevans (3 Wheat.. 16 U. S. 336, 388 (1818)), wherein this Court held that the United States could not have exclusive jurisdiction in Boston Harbor unless Massachusetts had ceded the harbor, and that cession could not be deduced from the grant of admiralty and maritime jurisdiction in the Constitution. "This," said Chief Justice Marshall, "is a question on which the Court is incapable of feeling a doubt. The article which describes the judicial power of the United States is not intended for the cession of territory or of general jurisdiction." The same ruling was made as to the defense power in the Hamburg-American case, supra, page 6.

In Corfield v. Coryell (6 Fed. Cas. 551, No. 3230 C. C. Pa. (1823)), Washington, Circuit Judge, held that the commerce power did not interfere with New Jersey's right to regulate oyster fishing in New Jersey waters, and gave the same reason, page 551:

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"The grant to Congress to regulate commerce on the navigable waters belonging to the several States contains no cession, either express or implied, of territory or of public or private property."

Regulatory powers granted to the Federal Government are applicable throughout a State's territory, and have no relation to Federal ownership of land. Even when the United States exercises its control over navigation by building a dam in the bed of a navigable river, the bed of the river thus used by the Federal Government does not become Federal property unless the State cedes it. (James v. Drave Contracting Co., 302 U. S. 134, 140-141 (1937); Atkinson v. State Tax Commission, 303 U. S. 20, 22 (1938)). Moreover, the commerce power and the other powers cited by the Government, Brief, page 85, operate within harbors and on dry land, and are not peculiar to coastal waters or the soil under them.

Regardless of this well-founded, long-recognized rule, for the first time, the Supreme Court of the United States spoke of State ownership of inland navigable waters as a "qualified ownership." This is the same phrase Congressman Hobbs conjured. Presumptively, it must be used with the same intendment or meaning. Can the Supreme Court begin laying a predicate for some future case involving inland waters, wherein the Court may refer back and cite the phrase "qualified ownership"?

It may be that the present Attorney General does not intend to proceed against the States for the resources within the inland navigable waters, but his views and actions may not bind successor Attorneys General.

Congressman Hobbs, of Alabama, as we understand, developed the theory that the marginal belt is in the family of nations, subject to the right of the littoral nation to take resources for its own use without compensating anybody. Such theory, we respectfully submit, is dangerous, and certainly invites serious complications with other nations. For example, if an oil field is brought