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MONDAY, JUNE 18, 1945

HOUSE OF REPRESENTATIVES,
COMMITTEE ON THE JUDICIARY,

Washington, D. C. The committee met at 10 a. m., the Honorable Hatton W. Sumners (chairman) presiding.

Present also: Senator Pat McCarran, Chairman, Committee on the Judiciary of the United States Senate.

The CHAIRMAN. The committee will be in order. We are expecting some Members of the Senate Judiciary Committee here very soon, and some additional Members of our committee no doubt will be here.

(Senator H. Alexander Smith of New Jersey arrived a few minutes I later.)

There are several bills; I think they are practically identical. I assume that most of you who are here are familiar with the bills, so i we will not call attention to each of them. I have before me a bill

introduced by Mr. 'Hébert, which will be put in the record at this point, and following that will appear a list of each of the other bills.

(The bill is as follows:)

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(H. J. Res. 118, 79th Cong., 1st sess.] JOINT RESOLUTION To quiet the titles of the respective States and others to lands beneath tidewaters

and lands beneath navigable waters within the boundaries of such States and to prevent further clouding of such titles

Whereas at the conclusion of the Revolution, each of the Original Thirteen States became and was, by virtue of its sovereignty, the absolute owner of all lands beneath tidewaters and lands beneath navigable waters within its boundaries; and

Whereas the Constitution of the United States has at all times required that all States thereafter admitted to the Union must be admitted upon a basis of equality in this respect with said Original Thirteen States; and

Whereas throughout a period of cne hundred years, all courts of the Nation and all courts of the respective States which have passed upon the question have held with complete uniformity that such State thereafter formed, upon its admission, became vested by virtue of its sovereignty with the absolute ownership of all lands beneath tidewaters and all lands beneath navigable waters within its boundaries (except such thereof, if any, as had previously been granted into other ownership by a sovereign having dominion over the territory thereof prior to the acquisition of that territory by the United States of America); and

Whereas throughout a period of one hundred years, the executive department of the Government of the United States has recognized and acted in accordance with this rule of law with complete uniformity; and

Whereas said court decisions and said uniform course of conduct of the executive department have resulted in an established and long settled rule of property, and States, cities, counties, port authorities, harbor districts, and other public agencies, as well as many private citizens, have invested or expended in the aggregate huge sums of money in justified reliance upon said rule of property; and

Whereas during the past ten years, certain persons have filed or caused to be filed applications under the Mineral Leasing Act of 1920 for prospecting permits and for oil and gas leases upon lands beneath tidewaters and lands beneath

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navigable waters, and have filed other applications for the location of Valentine scrip upon such lands, and have asserted in connection therewith that the United States is the owner of all such lands, thus creating clouds upon the titles of the true owners thereof; and

Whereas some of said applicants have engaged in the business of obtaining moneys from credulous investors in return for assignments of fractional interests in such applications and obtaining other moneys from the true owners, in order to clear their respective titles from such cloud; and

Whereas it is to the best interest of the people of the Nation that all such clouds upon title be removed and that the opportunity for creating other similar clouds upon the titles to such lands be ended: Now, therefore, be it

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That, in consideration of the premises, the United States of America hereby releases, remises, and quitclaims all right, title, interest, claim, or demand of the United States of America in and to all lands beneath tidewaters and all lands beneath navigable waters within the boundaries of each of the respective States, unto each of such States and unto the respective grantees or successors in interest thereof, and unto the respective present owners of such lands of which title has been confirmed by official action of the United States of America; excepting therefrom such lands beneath tidewaters and such lands beneath navigable waters as have been acquired by the United States of America from any State, its grantees or successors in interest, by cession, grant, quitclaim, or condemnation, or from any other owner or owners thereof by conveyance or by condemnation; retaining, however, to the United States of America its powers of regulation and control for the purposes of commerce, navigation, and the national defense.

As used in this joint resolution the phrase "land beneath tidewater" shall include all lands permanently or periodically covered by tidal waters up to but not above the line of mean high tide and oceanward from the coast line a distance of three geographical miles and to the boundary line of each respective State where in any case such boundary line extends oceanward beyond three geographical miles; the phrase "lands beneath navigable waters” snall include all other lands covered by waters which are navigable under the laws of the United States.

(The list of bills above referred to is as follows:)
Senate Joint Resolution 48, Senator McCarran, Nevada.
House Joint Resolution 118, Representative Hébert, Louisiana.
House Joint Resolution 119, Representative Brooks, Louisiana.
House Joint Resolution 122, Representative Doyle, California.
House Joint Resolution 123, Representative Boykin, Alabama.
House Joint Resolution 124, Representative Celler, New York.
House Joint Resolution 125, Representative Tolan, California.
House Joint Resolution 128, Representative Bender, Ohio.
House Joint Resolution 129, Representative Reed, Illinois.
House Joint Resolution 130, Representative Havenner, California.
House Joint Resolution 134, Representative Allen, Louisiana.
House Joint Resolution 137, Representative Colmer, Mississippi.
House Joint Resolution 138, Representative Hale, Maine.
House Joint Resolution 146, Representative Patterson, California.
Gouse Joint Resolution 148, Representative Welch, California.
House Joint Resolution 153, Representative Phillips, California.
House Joint Resolution 172, Representative Johnson, California.
House Joint Resolution 193, Representative Healy, California.
House Joint Resolution 217, by Representative McDonough, California.

The CHAIRMAN. It would be well if we had at the outset a list of those who appear for this proposed legislation, and when we have completed that list, I should like to have a list of those who appear against the legislation.

(Those appearing for the legislation are as follows:) Robert W. Kenny, attorney general, California Leander I. Shelley, attorney for American Association of Port Authorities, New

York
Grover Sellers, attorney general, Texas
Hugh S. Jenkins, attorney general, Ohio
Richmond Keech, National Institute of Municipal Law Officers

Hirsh Freed, assistant corporation counsel, Boston
Orrin G. Judd, solicitor general, New York
Gessner McCorvey, special assistant attorney general, Alabama
Miss M. Vashti Burr, deputy attorney general, Pennsylvania
John L. Madden, assistant attorney general, Louisiana
Miss Lucille May Grace, registrar State land office, Louisiana
John Underwood, Seattle Chamber of Commerce, Washington
Hall Hammond, deputy attorney general, Maryland
Ralph W. Ferris, attorney general, Maine
Bascom Giles, State land commissioner, Texas
Claude A. Rankin, State land commissioner, Arkansas
Arthur Eldridge, harbor commissioner of Los Angeles, Calif.
Irving M. Smith, city attorney, Long Beach, Calif.
Harry L. Brooks, assistant attorney general, Connecticut
A. B. Mitchell, attorney general, Kansas
J. Tom Watson, attorney general, Florida
Greek L. Rice, attorney general, Mississippi
Hughes J. Rhodes, assistant attorney general, North Carolina
John J. Cooney, assistant attorney general, Rhode Island
John M. Daniel, attorney general, South Carolina
Herbert Wade, director of port authority, Virginia
Ira J. Partlow, attorney general, West Virginia
H. S. Broehel, port manager, Milwaukee, Wis.
C. D. Babcock, assistant city attorney, Milwaukee, Wis.
Carlyle F. Lynton, executive officer, State Land Commission, California
Myron G. Blalock, attorney, Marshall, Tex.

(No one appeared in opposition to the legislation.)

(The joint resolution by Mr. Angell, referred to in his statement, and also mer tioned by Hon. J. Tom Watson, attorney general of Florida, is as follows:)

[H.J. Res. 67, 79th Cong., 1st sess.) JOINT RESOLUTION To declare the policy of the Government of the United States in regard to tide

and submerged lands Whereas for over a century it has been the accepted and declared policy of the United States of America that the several States had title to tide and submerged lands within their respective boundary as an incident of sovereignty; and which said theory of ownership has been often confirmed by repeated decisions of the Supreme Court of the United States; and

Whereas said settled rule was first disturbed by the introduction in the United States Senate of S. J. Res. 92, known as the Nye bill; and more recently said heretofore unquestioned right of the several States has been further invaded by an action in eminent domain, filed in the United States District Court of Los Angeles, by the Department of Justice, condemning three hundred and thirty-three acres of submerged and tide lands located in and a part of the harbors of Los Angeles and Long Beach, in which said case the Attorney General of the United States is contending that the United States has the right to take said land without paying compensation therefor; and

Whereas while such S. J. Res. 92 has had the effect of disturbing what had been long considered vested rights, both public and private, this court procedure has now passed beyond the position of threat and has in fact invaded the domain of the State and the public rights thereof, and indeed of public functions of every port in America; and unless the course of such policy is changed, its disturbing, if not paralyzing, action will disastrously affect all harbors and tide and submerged lands within the United States, as well as our coastwise, intercoastal, and foreign commerce; and

Whereas this trespass into the legal field, under the guise of war necessity, of an untried and heretofore condemned theory, will disturb, if not destroy, the efficient control and operation of all United States ports; and may take, without compensation, harbors constructed at great cost, and inflict an inestimable injury to commerce: Therefore be it

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the doctrine that the title to submerged and tide lands is, and ought to be, vested in the respective States within whose boundaries such lands are situated, is hereby reaffirmed; and further that such harmful and needless disturbance not only of settled property rights of individuals, but of States, and their political subdivisions, is condemned, together with the unwarranted invasion of the jurisdiction of the public officers and bodies controlling the operation of harbors and the furthering of domestic and foreign commerce.

The CHAIRMAN. I assume that the proponents of this legislation have agreed upon procedure. Who is to introduce the witnesses?

Mr. KENNY. Mr. Chairman, we had a meeting yesterday of the States interested in this, and they asked that I be the first speaker on the subject matter, and that I be followed by a gentleman from the Port Authority of New York. I think I can make an opening statement that will generally cover the matter, which will take only about 20 minutes, and that can be followed by the gentleman from New York, and then Mr. Grover Sellers, the attorney general from Texas, will follow the gentleman from New York. I rather think that will give you an over-all presentation. Then other gentlemen will want to give you certain factual data affecting their own States, and how those States would be affected by this proposed action of the Federal Government.

The CHAIRMAN. Perhaps I should say at this point that not longer than 3 days can be allocated to this hearing. We have another set of hearings coming on. I would like to present to those of you heremost of you know him-Senator McCarran, who is chairman of the Senate Judiciary Committee. He is doing us the honor and rendering us the assistance of attending these hearings, Senator McCarran, on my right, chairman of the Judiciary Committee of the Senate.

Senator, I believe you were to have some other members of your committee here.

Senator McCARRAN. I am in hopes that a number of our subcommittee may have the opportunity of sitting in with your able committee. May I say that I doubt very much that I can attend as frequently as

I I would like to, but I shall put in as much time at the hearings as is possible, in keeping with other matters that are pressing me.

I think by doing this, at your invitation, Mr. Chairman, we may be able to save money and save time, inasmuch as there is quite a group from the outside here who may have to return if we hold hearings again over in the Senate Judiciary Committee. Perhaps by getting the full report of this committee and having inserted in this hearing the correspondence that has come to me on the subject, we may be able to save the expense and time of both committees, and of those who have come here from out of town.

The CHAIRMAN. Senator McCarran, I am sure all the parties interested will very much appreciate this contribution to brevity and economy, and we are grateful to have you with us.

Now, Mr. Kenny, I believe you are the first witness.
Mr. KENNY. That is right, Mr. Chairman.
The CHAIRMAN. You may proceed.

STATEMENT OF HON. ROBERT W. KENNY, ATTORNEY GENERAL

FOR THE STATE OF CALIFORNIA

Mr. KENNY. My name is Robert W. Kenny; I am the attorney general of California. At the outset I would like to point out a few facts which show the Nation-wide interest in this legislation which is pending before this committee, and before the Senate Judiciary Committee.

Eighteen measures, substantially similar in, form, all designed to quiet the titles of the States in land beneath tidal and navigable waters, are under consideration at this hearing. These measures were introduced by Members of Congress from California, Nevada, Alabama, New York, Ohio, Illinois, Mississippi, and Maine.' The passage of the proposed legislation is urged by the attorneys general of 46 States who have signed a joint brief in its support. This joint brief will be offered for filing at the close of these remarks.

This brief is a landmark in legislative history. Never before have the attorneys general of 46 States joined in full cooperation and agreement on an important proposition of law and upon the necessity for a particular piece of congressional legislation.

Mr. SPRINGER. Which are the two States which have not joined?

Mr. KENNY. The two States which have not joined are Washington and Arizona, and both of them have expressed themselves generally in agreement in principle. Unfortunately, the Attorney General of Washington is in Germany with the armed forces, and he was a little difficult to reach on the matter.

As I say, I think this is really a landmark, where we have got 46 States acting in harmony, and never before have the attorneys general of as many States joined in full cooperation and agreement on an important proposition of law and on the necessity of a particular piece of congressional legislation.

It should be borne in mind that the attorney general is the highest legal officer of the State, and this combined expression of these people's lawyers, of legal opinion, is, I believe, entitled to great respect. Indeed, it would be impossible to present a more overwhelming case in support of the legal basis and the need for any piece of legislation.

The States' ownership of tidelands and of lands under navigable waters, has been recognized as settled law since 1776, and was never challenged by Federal officials, until 1937.

Throughout the entire United States, all harbor, port, and other improvements upon or adjacent to these lands, including fisheries, oyster culture, and the development of oil, iron ore, and other mineral products, have been made in reliance on this settled rule of law. These improvements represent investments on the part of public bodies and private citizens running into billions of dollars.

It is doubtful if Federal officials who seek to acquire title to these submerged lands realize the far-reaching and unsettling effect of their proposals. The settled doctrine of State ownership has resulted in an equally well settled separation of power and authority as between State and Federal Governments. Each of the States has its own laws, its own system of administration, and its own boards and officers for the control, administration, and use of all its navigable waters and the lands under them, subject, of course, to the right of the United States to regulate interstate and foreign commerce.

The attack by Federal officials on State titles to submerged lands is not only an attack on titles, but it is also an attack on the whole system under which administrative power is separated as between State and Federal authority. This attack has not only thrown a cloud on all titles but, if not terminated by Congress, it will disrupt this long-settled separation of powers and throw the whole question of authority and administration of lands under tidewaters and navigable waters into a state of confusion which might last for many years,

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