TITLE TO SUBMERGED LANDS BENEATH TIDAL

AND NAVIGABLE WATERS

SATURDAY, MARCH 6, 1948

SUBCOMMITTEE OF THE COMMITTEE ON THE
JUDICIARY OF THE UNITED STATES SENATE,

AND

SUBCOMMITTEE No. 1 OF THE COMMITTEE ON THE JUDICIARY OF THE HOUSE OF REPRESENTATIVES, Washington, D. C. The subcommittee met in joint session, pursuant to recess, at 9:30 a. m., in room 318, Senate Office Building, Senator E. H. Moore (chairman of the Senate subcommittee) presiding.

Present: Senators Moore (chairman of the Senate subcommittee), Donnell, and McCarran; Representative Gossett.

Also present: Senator Connally; Guy Woodward, administrative assistant to Senator Moore; and Maurice W. Covert, member, professional staff of Senate committee.

Senator MOORE. You may proceed with your statement, sir.

STATEMENT OF HON. SAM HOBBS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ALABAMA

Representative HOBBS. Mr. Chairman, I had 18 engagements yesterday, including three bills on the floor which I was vitally interested in as a member of the Judiciary Committee of the House. I had to defend its position against the provisions of the appropriation bill, so I have not had any time whatever to dictate any statement. I will do so and submit it.

Senator MOORE. You will do that and file it later?

Representative HOBBS. What I would like to do would be to submit myself to any cross-examination that anybody might wish. Very briefly, my position is exactly as it has been all the time.

Senator MOORE. I am not too familiar with that position, Judge. Representative HOBBS. When I was appearing before this same committee through the years when the Nye resolution and my resolution and the other resolutions and bills that had been presented from time to time were under consideration, I took the position that the Pollard against Hagen case was clear and the law never overruled, explained, or qualified. It is the law now just as it was more than a hundred years ago when it was rendered.

In substance, it said that while the sovereignty of Alabama extended into the sea, it was there, as it was on shore, but municipal power, subject to the paramount right of Federal Government for all constitutional purposes.

Senator MOORE. We know that. It still is, and it still would be, as we contend-and I think it is correct-that the constitutional powers of the Federal Government and any grants, other grants, that have been made, would still obtain.

Representative HOBBS. Of course. Any grants properly and legally

made.

My position always has been and is now that the constitutional powers granted to the Federal Government power are four: To build and maintain an Army and Navy

Senator MOORE. Just repeat that. I do not believe I understood that.

Representative HOBBS. To create or build an Army and a Navy and maintain them, to defend the coasts; to operate a Coast Guard and to collect import and export duties, which comes under the revenue phase of Federal power; and to regulate interstate and foreign commerce. Senator MOORE. Commerce?

Representative HOBBS. Of course, the commerce power includes navigation and the control of that.

So we realize now, as we all did then, that those rights of the Federal Government were paramount to the municipal power of the States to control what was within their territorial waters. That is the contention that I made against the Nye resolution.

Senator MOORE. I am sorry, I just cannot tell you what the Nye resolution was.

Representative HOBBS. The Nye resolution which passed the Senate was a claim of title in the Federal Government.

Senator MOORE. The sea belt; the tidelands?

Representative HOBBS. Yes, sir. The sea belt and the tidelands are two entirely different areas.

Senator MOORE. Yes; I know they are.

Representative HOBBS. Of course; the tideland phrase was invented not by you but by those who were seeking to further their selfish end, which you are not; you are standing on your constitutional and legal rights. I realize that fully. But I maintain, and always have, that the tideland phrase was invented to make the public think that this fight was something which it was absolutely not.

Senator MOORE. What we are really talking about, Judge, as I understand it, we are talking about the 3-mile belt.

Representative HOBBS. Yes, sir.

Senator MOORE. Three miles out from the shore. We understand that.

Representative HOBBS. That is right. Three miles out from lowwater mark.

The Nye resolution claimed title. In the Judiciary Committee of the House I resisted that resolution.

Senator MOORE. When was that introduced? Do you remember? It is in the record here, no doubt.

Representative HOBBS. Way back, 1937 or 1938.

Senator DONNELL. The Seventy-fifth Congress, third session, was it not, Senate Joint Resolution 208? I am referring now to your brief of March 22, 1939, where you say:

Senate Joint Resolution 208 was introduced by Senator Nye in the Seventy-fifth Congress, third session; it passed the Senate, was amended by the Committee on

the Judiciary, House of Representatives, was amended and favorably reported May 19, 1938.

Is that the bill to which you refer?

Representative HOBBS. Yes, sir.

Senator MOORE. It was not passed by the House.

Senator DONNELL. Its passage was recommended by the Departments of Justice, Interior, and Navy. It failed of enactment.

Representative HOBBS. That is the recommendation I disagreed with and opposed. I reached the conclusion after a very careful study of all the authorities, and I read every one that has ever been written on the subject.

Senator MOORE. Just for my information-I am sorry to take up the time this was introduced, I assume, because of a claim that had been made that the Federal Government did own it. I assume that was correct.

Representative HOBBS. Senator Nye's resolution made that claim and he maintained that position.

Senator DONNELL. His position was that who owned it, Judge? Representative HOBBS. The Federal Government. And it passed the Senate. But when it came to the House committee, I was appointed by the House committee to brief the case and reached the conclusion that the distinguished Senator was not right. So I fought it and maintained, and still maintain, that no one owns the oceans, that they are the common property of the family of nations, but that each littoral nation has the rights and privileges which inure to their sovereignty and that because of that sovereignty they have certain paramount rights.

I used an illustration there which has helped in the explanation of my position to which a great many people who are not as familiar with the law as you distinguished lawyers and jurists are.

Senator MOORE. That is a customary tribute that you pay to the committees, is it?

Representative HOBBS. No, sir; it is not. It is simply an effort of a country boy who is awed always by your distinguished body, and your individual and collective presence.

Senator MOORE. That is very complimentary.

Senator DONNELL. I think we have a good witness before us this morning, Mr. Chairman.

Representative HOBBS. Thank you, sir. That illustration, Mr. Chairman and gentlemen, was that no one owned the air, nor was any right to appropriate any part of it granted by any muniment of title, but so fixed and clear was the right of every child born into the world to use so much of the air as might be necessary to sustain his life that when one deprived the child of it, for a sufficient length of time, we called it murder. That is the kind of right that has inured to every littoral sovereignty in the world.

I think that is important for us to make clear in each other's thinking at the very outset of a statement of my position, not that what I say amounts to anything. What I say does not. But that is where I want to stand and that is where I do stand.

From the time of Regina V. Keene, when the fight was between the Crown of England and the Prince of Wales over the subocean coal lands, up to the time the 3-mile zone was agreed upon, and from that

time to this it has never been disputed, for it is the only boundary which has ever been agreed upon by the family of nations.

Of course, for years there was serious contention that sword's length with arm extended was the limit of sovereignty of a littoral nation. Then it was the spear point. And when it was the arrow shot. And then the crossbow. And then the musket shot, and finally the ultimate was thought reached when the cannon propelled its ball for 3 miles. It was a practical success, all nations, I think, with the exception of two very minor ones, agreed to it.

That history is of no importance. But that is the way this thing developed. And the underlying philosophy in all the texts and in all the decisions has been all the time, and undisputed, that it was that rim around the coast of every littoral nation which was capable of being defended and patrolled, for revenue and coast-guard purposes and repelling invasion.

So the theory which I proposed then to the President of the United States was that the Continental Shelf, the outer limit of the Continental Shelf, should be for convenient purposes and to insure the agreement of the family of nations, proclaimed as the new belt, assuring, as did the dropping of the atomic bomb, and the bombs before the atomic bomb, that wherever an airplane could go in its flight and defend the Nation and resist invasion or what-not, which is several hundred miles further than the extent of the Continental Shelf, was within the area that the littoral nation could defend. And that now the 3-mile zone was outmoded.

But be that as it may, there have been only three changes in the picture during the last decade, so far as I recall: (1) The Presidential proclamation claiming control to the outer edge of the Continental Shelf; (2) the Supreme Court's decision of June 1947; and (3) the flock of new bills flying the States' rights' flag put out to sea, firing broadsides at every word of the Supreme Court's decision in the California case.

In one breath these bills say that everything should belong to the States, and that their titles should be quieted, and in the other breath this one proposal is that the fisheries right (which is a police power, of municipal character, that for 115 years has been universally conceded to be the right of the States, as an adjunct to their title to the bed of their territorial waters), is to be taken away from the States and given to the Federal Government. Of course, I am opposed to that contention and opposed to that bill, introduced by my dear friend, Congressman Colmer.

Mr. Chairman, there was a statement current some years ago, which every one of their proponents reiterated, that there had been 54 decisions, if my recollection is correct, and I believe it is, of the Supreme Court in favor of the California contention.

Senator MOORE. I believe it is 52 rather than 54.

Representative HOBBS. I think that the then members of the committee insisted that it was 54. I threw out the challenge then and it has never been accepted and I reiterate it now, that if anyone can show a decision of the Supreme Court, one, just one (not 54), that makes any such holding, I will eat my hat and buy him a new one. It is not in the books. It has never been. And it is so stated specifically in the latest case, the only case on the subject, which is U. S. versus California.

Mr. WOODWARD. Mr. Congressman, is it your opinion that the decision in the California case is based on the theory that the bed of the ocean is not capable of ownership by the United States as an entity?

Representative HOBBS. That, Mr. Woodward, is not clear in the decision, in my judgment, nor was it necessary. I do not know whether that was the philosophy underlying that decision or not. I was simply stating my humble opinion.

Of course, the sum and substance of that decision covers just these two points: (1) That there is vested in the Federal Government certain rights which are paramount to those of any one else; and (2) that the State of California has no right, title, interest, or claim in this belt. Mr. WOODWARD. You remember that the request of the Department of Justice to include "proprietorship" in the decree, was refused by the Court.

Representative HOBBS. Yes, sir.

Mr. WOODWARD. It preferred to let the opinion rest on the "paramount rights theory" asserted in the decision.

Representative HOBBS. That is right.

Mr. WOODWARD. An incident of which was full dominion.
Representative HOBBS. That is right.

Mr. WOODWARD. Does it not seem clear to you that the decision is based squarely on your theory?

Representative HOBBS. Some people think so. I do not think that that is clear. But I think it is sufficiently clear to establish the law, which is the law of the land, and must be respected whether we like it or not. I like it. Others still "kick against the pricks."

Mr. WOODWARD. It is clear that "paramount rights" includes fee simple?

Representative HOBBS. Oh, certainly not. If it meant title, it would have said so. I have never contended, and I know of no one else who has gone into this matter deeply, that makes any such contention. Senator MOORE, The Attorney General of the United States does. Representative HOBBS. No, sir.

Senator MOORE. In his testimony he said that

Representative HOBBS. No, sir. I read every word of it.

Senator MoORE. You do not think he does? You do not think he asserts that?

Representative HOBBS. I am sure he does not. I have just read it this morning to refresh my recollection. He has always contended that that decision vested certain rights in the Federal Government which were tantamount and superior even to title.

Senator MOORE. Yes. I read that.

Representative HOBBS. That is far different from a claim of title. So this seems to me to be-these proposed bills, this movement, this fight seems to me to be just as much out of order, yea, 54 times more so, than the old fights have been.

How any Member of the Congress, the Senate or the House, can support any of these bills under the circumstances and in the face of the decision of the Supreme Court of the United States I simply cannot imagine! Impairing, if not taking away from the Federal Government, its national-defense grant of power in the Constitution! Senator MOORE. You are talking about the constitutional grants. Representative HOBBS. That is right.