Equality of States, of course, does not mean equality in size or in the amount of navigable waters within a State. Of necessity some States are larger than others. Some have lakes and rivers and others do not. Lands beneath navigable waters whether on the coast line or inland, are owned by the States as sovereigns. So long as each State owns all such lands within its boundaries there is full equality of sovereignty. The proposed resolutions recognize this sovereignty by quieting title of each State to the lands within the boundaries of that State. It is sometimes implied that this controversy relates primarily to oil. From the fact that 46 attorneys general support this measure, it is obvious that that is not true. It is not even true as to California. As I said, California has 1,000 miles of coast line. Not more than 15 miles contain any oil wells. There are two small sections near Santa Barbara, another at Long Beach, and another at Huntington Beach, and that is all. California has six major harbors, and a number of smaller ones. The six major harbors are Oakland, San Francisco, Stockton, Los Angeles, Long Beach, and San Diego. Of these Long Beach is the only one directly concerned with oil production. These harbors have all been developed by the State or the municipalities involved. They are all built on filled and reclaimed lands, much of them below lowwater mark, and largely with State and municipal funds. Mr. Eldridge of the Los Angeles Harbor Commission is here in Washington and will give you further facts regarding that harbor. The total value of these six harbors probably exceeds $200,000,000 and the total revenue, apart from oil, exceeds $10,000,000. These figures are for improvements only, and include nothing for the value of the reclaimed and submerged lands. Nor do these figures include large private investments which have been made in and adjacent to these harbors on the strength of State titles. Furthermore, in the case of San Francisco a large part of the business district, including many skyscrapers, is located on filled tidelands. Likewise, in San Diego the entire manufacturing plant of the Consolidated Aircraft Co., the Solar Aircraft Co., Lindbergh Field, San Diego Civic Center, and many private enterprises are located on filled-in land. In conclusion, I would say this; it is conclusively established that these resolutions will convey no land and no property right as to which the United States has any legitimate claim. Nevertheless, a serious cloud has been created on titles in every State in the Union. That cloud can be removed permanently and effectively only by congressional action. As 1 of the attorneys general of 46 States of this Union, I urge the adoption of this resolution. I would like, now, Mr. Chairman, to submit this brief I mentioned at the outset. There will be copies available for the members of the committee. The CHAIRMAN. If it is not too long, it might go in the record. Mr. KENNY. It would be a great honor if it were printed, Mr. Chairman. The CHAIRMAN. We are very much obliged to you. (The brief referred to is as follows:) BRIEF OF ATTORNEYS GENERAL IN SUPPORT OF JOINT RESOLUTIONS QUIETING TITLES OF STATES TO LANDS BENEATH TIDEWATERS AND NAVIGABLE WATERS (The following resolutions, substantially identical in form, are now pending in Congress:) Senate Joint Resolution 48, Senator McCarran, Nevada. MEMORANDUM OF LAW IN SUPPORT OF PROPOSED JOINT RESOLUTIONS QUIETING TITLES TO LANDS BENEATH TIDEWATERS AND NAVIGABLE WATERS BACKGROUND OF PROPOSED LEGISLATION Ever since the creation of the Federal Government it has been a uniformly established rule of constitutional law that all lands beneath tidewater and navigable water are the absolute property of the respective States in which such lands are situated. For more than 100 years prior to 1937 this rule was uniformly recognized and respected by all departments of the Federal Government. However, in April 1937 and 1938 resolutions known as the Nye resolution were introduced in the Senate and similar resolutions in the House, in which the assertion was made that all tide and submerged lands within the 3-mile limit were "the property of the United States." Notwithstanding that these resolutions failed of passage, the claims set forth therein and the arguments made by officials of the United States before the congressional committees have operated to cast a cloud upon the States' titles to all lands beneath tidal and navigable waters. Furthermore, officials in the Department of the Interior have not allowed the matter to rest but have continued actively to advocate action similar to that sought by the Nye resolution. In recent months the matter has become acute by reason of the public statements of Secretary of the Interior Ickes that he intends to grant certain applications for Federal oil and gas leases on tide and submerged lands. The issuance of such leases would, of course, be an actual assertion of title by an important department of the Federal Government and would further cloud titles to all tide and submerged lands of the States. CLAIMS OF THE INTERIOR DEPARTMENT ARE AN ATTACK ON STATE SOVEREIGNTY AND AFFECT EVERY STATE In what appears to be an attempt to prevent united and coordinated action by the States, the Interior Department has maintained that tidelands or submerged lands of one State may be taken by the Federal Government without affecting the legal rights of other States. An examination of the principle of law under which tidelands are held will demonstrate the fallacy of such a claim. Each of the States owns its tide and submerged lands by virtue of the principle of State sovereignty. The United States cannot successfully assert title to tidelands in any one State without destroying this principle. If the Federal Government is successful in destroying the legal basis of State ownership in one State it will automatically follow that the principle will no longer apply in any State. Indeed, it was frankly admitted by Mr. Ickes in a statement made publicly, at a press conference on March 6, 1945, that this policy would "have to be a general policy * * * "" Furthermore, those who took part in the hearings on the Nye resolution will recall that its advocates frankly admitted that if the law were construed in accordance with their claims it would "necessarily follow * * *"" that the Federal Government “would have the right to go into all the ports and take the ports' property or all the property that has been constructed thereon and therein." (Senate committee hearings on S. J. Res. 83 and S. J. Res. 92, March 27-30, 1939, p. 422.) Title to lands beneath inland navigable waters, including lakes and rivers, is held by the States under the same legal principle as tidelands. All inland States are, therefore, subjected to the same threat as the coastal States. It is obvious that the threat which now has become acute is not limited to any one State but affects, directly or indirectly, the sovereign rights of every State in the Union. States should not be misled by the suggestion that an attack on the sovereignty of one State is of no concern to other States. There is and can be no middle ground. If Mr. Ickes can seize 1 square foot of tide or submerged lands in any State and maintain his seizure, it will be the official duty of Federal officers everywhere to complete the conquest of all like areas in all the States. NATURE OF PROPOSED LEGISLATION The title of the States to their lands beneath tidal and navigable water should be permanently quieted by congressional action. The proposed resolutions will accomplish this in the simplest and most effective way, namely, by a release or quitclaim from the United States running directly to the States, respectively, and their grantees. This release will convey nothing to which the United States now has any legitimate claim but will simply serve to clear the titles of State properties from the unwarranted cloud which has been cast upon them. The Supreme Court has repeatedly declared as a matter of law that these lands belong to the States. These resolutions confirm those declarations. The following is a brief statement of the legal basis of the States' ownership of lands beneath tidewaters and navigable waters: LEGAL BASIS OF STATES' OWNERSHIP OF TIDELANDS Each of the Original Thirteen States became, at the conclusion of the Revolution, the absolute owner of all lands beneath tidal waters and navigable waters within its boundary (except such portions thereof, if any, as had previously been granted out by the former sovereign). The original States did not surrender their lands beneath tidal waters and navigable waters to the Federal Government either by the Constitution or otherwise. In a few instances States have voluntarily ceded or conveyed small portions of such lands to the United States for purpose of national defense or for the improvement of navigation, and in other instances the United States has acquired portions thereof by condemnation. The States have also in some instances granted or leased portions of their lands beneath tidal waters and navigable waters to private citizens. Except for the portions of such lands so acquired by the United States and by private citizens, the original States today retain absolute title to and ownership of all such lands within their respective boundaries. It has been held by the United States Supreme Court in many cases that all States subsequently admitted to the Union became the owners of the lands beneath their tide and navigable waters equally with the Original Thirteen States (Pollard v. Hagan (1845), 3 How. (44 U. S.) 212, 228). It follows that all States of the Union are, subject to the exceptions mentioned in the preceding paragraph, the absolute owners of the lands beneath tidal waters and navigable waters within their respective boundaries. The United States, through its Congress, is vested by article I, section 8, of the Constitution, with the power "to regulate commerce with foreign nations and among the several States." But this power in no way affects the absolute ownership by the States of the lands beneath tidal waters and navigable waters. The ownership of lands beneath tidal and navigable waters by the individual States is not a question of national policy which can be changed from time to time by Federal officials, but is a settled rule of constitutional law. The United States Supreme Court and all other courts which have passed upon the question have uniformly held in a multitude of decisions extending over a period of more than 100 years that lands of the character described in this resolution belong 75296 452 absolutely to the States. There is no decision to the contrary. The following excerpts from two of the leading decisions of the United States Supreme Court set forth concisely the rule as to tidelands: Knight v. U. S. Land Ass'n (1891), 142 U. S. 161, 183: "It is the settled rule of law * * * that absolute property in, and dominion and sovereignty over the soils under the tidewaters in the original States were reserved to the several States, and that the new States since admitted have the same rights, sovereignty, and jurisdiction * * Hardin v. Jordan (1891), 140 U. S. 371, 381: "With regard to grants of the Government for lands bordering on tidewater, it has been distinctly settled that they only extend to highwater mark, and that the title to the shore and lands under water in front of lands so granted enures to the State within which they are situated, if a State has been organized and established there. Such title to the shore and lands under water is regarded as incidental to the sovereignty of the State-a portion of the royalties belonging thereto and held in trust for the public purposes of navigation and fishery-and cannot be retained or granted out to individuals by the United States (Pollard v. Hagan, 3 How. 212; Goodtitle v. Kibbe, 9 How. (50 U. S.) 471; Weber v. Harbor Commissioners, 18 Wall. (85 U. S.) 57)." 1 THE STATES' OWNERSHIP OF TIDELANDS EXTENDS TO ALL LANDS COVERED BY TIDAL WATERS WITHIN THEIR RESPECTIVE BOUNDARIES The ownership of States to "the soils under the tidewaters" is not limited to the narrow strip along the coast over which the tide daily ebbs and flows, but includes all lands covered by the waters of the sea within the States' boundaries which in every case extends to a distance of at least 3 miles from the coast line. This proposition is expressed in Port of Seattle v. Oregon & W. R. R. Co. (1921), 255 U. S. 56, 63: "The right of the United States in the navigable waters within the several States is limited to the control. thereof for purposes of navigation. Subject to that right, Washington became, upon its organization as a State, the owner of the navigable waters within its boundaries and of the land under the same. * * * The character of the State's ownership in the land and in the waters is the full proprietary right. The State, being the absolute owner of the tidelands and of the waters over them, is free, in conveying tidelands, either to grant with them rights in the adjoining water area, or to completely withhold all such rights." Illinois Central R. R. Co. v. Illinois (1892), 146 U. S. 387, 435: "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, Martin v. Waddell (1842), 41 U. S. 366, 410: * * (* * * For when the Revolution took place, the people of each State became themselves sovereign; and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the Constitution to the general Government." (Namely, the rights of regulation incident to the regulation of commerce and navigation.) The ownership and jurisdiction of States bordering on the ocean extends in all cases at least 1 marine league or 3 geographical miles "from the coast on the open sea, This was definitely settled in the case of Manchester v. Massa chusetts (1890), 139 U. S. 240. In this case the court said (p. 257): 16* * * Therefore, if Massachusetts had continued to be an independent nation, her boundaries on the sea, as defined by her statutes, would unquestionably be acknowledged by all foreign nations, and her right to control the fisheries within those boundaries would be conceded. the limits of the right of a nation to control the fisheries on its seacoasts, and in the bays and arms of the sea within its territory, have never been placed at less than a marine league from the coast on the open sea; * * In the Massachusetts case the court also dealt with the ownership of the submerged land lying between the coast line and the boundary of the State which, in that case, as above stated, was a marine league from the coast. On this point, in referring to the earlier case of McCready v. Virginia, 94 U. S. 391, the court said (p. 259): 61* * * In that case it was said, that the principle had long been settled in this court, that each State owns the beds of all tidewaters within its jurisdiction, unless they have been granted away; * * * "" 1 All emphasis herein is added. LANDS BENEATH INLAND NAVIGABLE WATERS ARE OWNED BY THE STATES ON THE SAME LEGAL BASIS AS TIDELANDS In the excerpt from the decision in Martin v. Waddell above quoted, it will be noted that the rule as to lands covered by the tidal waters of the sea applies as well to "all their navigable waters, and the soils under them." It is settled beyond question that this rule of law applies to all lands beneath inland waters, such as lakes and streams, which are navigable under the laws of the United States. In the leading case of Illinois Central R. R. v. Illinois (1892), 146 U. S. 387, at 435, the court, in dealing with this precise question as it pertains to Lake Michigan, 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, with the consequent right to use or dispose of any portion thereof, when that can be done without substantial impairment of the interest of the public in the waters, and subject always to the paramount right of Congress to control their navigation so far as may be necessary for the regulation of commerce with foreign nations and among the States. This doctrine has been often announced by this court * * * (Pollard's Lessee v. Hagan, 3 How. (44 U. S.) 212; Weber v. Harbor Commissioners, 18 Wall. (85 U. S.) 57). "The same doctrine is in this country held to be applicable to lands covered by fresh water in the Great Lakes over which is conducted an extended commerce with different States and foreign nations. These Lakes possess all the general characteristics of open seas, except in the freshness of their waters, and in the absence of the ebb and flow of the tide. In other respects they are inland seas, and there is no reason or principle for the assertion of dominion and sovereignty over and ownership by the State of lands covered by tidewaters that is not equally applicable to its ownership of and dominion and sovereignty over lands covered by the fresh waters of these Lakes." This rule was reaffirmed in the case of Massachusetts v. New York (1925), 271 U. S. 65, 89, and again in the late case of United States v. Utah (1930), 283, U. S. 64, in which the court said, at page 75: (* * * In accordance with the constitutional principle of the equality of States, the title to the beds of rivers within Utah passed to that State when it was admitted to the Union, if the rivers were then navigable; and, if they were not then navigable, the title to the river beds remained in the United States.' Attached to this brief as an appendix is a partial list of the decisions of the United States Supreme Court and of other courts, and references to other authorities, all of which further support the propositions above set forth. NECESSITY FOR LEGISLATION On the basis of the foregoing principles of constitutional law a rule of property has been established. The States of the Union and their various legal districts or subdivisions, as well as their citizens, in reliance upon this rule have expended enormous sums of money in the development of their lands beneath tidal and navigable waters both along the coast and inland. Large areas have been filled and reclaimed and expensive improvements erected thereon. Great harbors have been constructed and a multitude of other improvements made. In those States in which oil has been found in the lands covered by tidal waters or navigable waters, the States have made leases to private citizens and great sums have been spent in developing these oil resources. Not only have the States and their citizens made these improvements and expenditures in justified reliance on the rule of property above set forth, but the United States itself has, since it was established by the Constitution, recognized and acquiesced, in literally hundreds of ways, in the ownership of these lands by the individual States. When an unwarranted cloud exists upon the title to real property the proper and legal method by which such cloud should be removed is by a quitclaim or release. The proposed resolution will constitute just such a quitclaim or release, and nothing more. It releases no property and no property interest in which the United States now has any legitimate claim whatsoever. Its passage will serve to clear the titles of immensely important and valuable State and municipal properties throughout the Nation from the wholly unwarranted cloud which has been cast upon them as a result of the Nye resolution and of the more recent claims of the Department of the Interior. This alleged policy of that Department is not and never has been the true policy of the United States and is directly opposed to the legitimate and settled property rights of every State in the Union." |