Mr. WARREN. It is just exactly what we have done in building all of our ports in California.

Mr. MICHENER. If the California jurisdictional line runs 3 miles from the shore, that would include the two islands?

Mr. WARREN. Oh, yes; but only the submerged tidelands. The islands belong to the Government, we claim only the submerged tidelands.

Mr. REED. When did the Government obtain those two islands; by the treaty with Mexico?

Mr. WARREN. Yes; because they were on high land, but as to the submerged tidelands that were surrounding them, and were built up, they remained in the same character of ownership, namely, the State of California, after it came into the Union on an equal footing with the other States.

Mr. ROBSION. How about the submerged tidelands. You claim that all you are claiming is the right and title to the submerged land?

Mr. WARREN. Oh, yes.

Now, gentlemen, I have not been as brief as I promised to be, but if there is anyone who would like to have me trace the title of California from the Treaty of Guadalupe on down to the present time, I will do it.

Mr. MICHENER. That is a pretty well-beaten path.

Mr. WARREN. I believe so, and I hesitate to do it. May I just say to you again, gentlemen, that I do appreciate your courtesy to us, and there is only one thing that we ask of you, and that is that after 90 years of ownership of these tidelands, according to the decisions of the Supreme Court of the United States of America, upon which we all rely, that you do not at this time declare any policy which will be the foundation for a claim of ownership on the part of the United States Government, or any other agency that will cast a cloud upon our property rights in the State of California, and in that way upon the sovereignty of the State of California.

Mr. ROBSION. Do you think that a resolution directing the Attorney General to file a suit would be the proper thing?

Mr. WARREN. No, sir; we believe that the decisions of the Supreme Court of the United States are so clear and so decisive of the question that any cloud that you would cast upon the title of any of these coastal States would be an injustice.

Mr. ROBSION. It seems to me that if the Department of Justice was active enough to bring a suit to recover two little islands, I could hardly see, or I am just wondering why they have waited all of these years to bring a suit to recover all of these acres.

Mr. WARREN. If I could answer that question, I would say that it was because the Department of Justice of the United States never had confidence in the title of the United States Government in those submerged tidelands, and it does not believe that.

Mr. ROBSION. You do not want us to push the Department of Justice into a lawsuit on that?

Mr. WARREN. No; we never look for a law suit.

Mr. MURDOCK. Do you want to submit your brief?

Mr. WARREN. Yes.

Mr. MURDOCK. It is received and incorporated into the record.

(The document above referred to was incorporated into the record as follows:)

BEFORE THE COMMITTEE OF THE JUDICIARY OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA-BRIEF OF THE STATE OF CALIFORNIA IN OPPOSITION TO HOUSE JOINT RESOLUTIONS NO. 176 AND No. 181, RELATING TO THE ESTABLISHMENT OF TITLE OF THE UNITED STATES TO CERTAIN SUBMERGED LANDS AND TO THE ESTABLISHMENT OF A NAVAL PETROLEUM RESERVE IN SUCH LANDS

This brief is submitted by the undersigned on behalf of the people of California with the approval of the Governor' and the Legislature of said state and of the entire California delegation of this Congress in the House of Representatives.$

In presenting the case of California on these Resolutions, we desire to state at the outset that we are in sympathy with the desire of the Navy to secure for itself an adequate supply of oil and other facilities for its present and future needs, and with its endeavor to establish naval oil reserves as a vital part of the National defense. We desire to be cooperative and helpful in the accomplishment of these objectives. Our present Governor, the Honorable Culbert L. Olson, has not only pledged his administration to a general program of conservation of our natural resources, but specifically to protect the publicly owned oil deposits from spoliation by private operations on littoral lands.

Our people, acting through our state and local governments, have always cooperated with the Navy, and I do not hesitate to predict that there never will be any difficulty in working out plans for more adequate maintenance of the Navy whenever the problem is approached on a sound and fair basis. We have functioned in this manner for almost ninety years. The relationship has always been cooperative. The United States Government has always to this day recognized the sovereignty of California by asking and receiving what it needed for its Army and Navy in tidelands. port facilities, etc. There is no port city in California which has not, either through its State Board of Harbor Commissioners or its local port authority, made grants in fee to the United States Government for purposes of National defense. The grants have been requested by the Government, made by the state or its subdivisions and finally accepted by Congress. On San Francisco Bay only a few years ago the City of Alameda ceded six hundred acres of its submerged tidelands to the United States Government for an air base. The neighboring city of Oakland, represented in Congress by the Honorable John H. Tolan, a distinguished member of this committee, recently granted in fee to the Federal Government approximately four hundred acres of submerged lands for a naval supply depot; and again during the past week the electorate of the City of Alameda overwhelmingly approved the grant of a reclaimed island to the United States for its coast guard operations.

These grants are not uncommon. On the contrary, they are habitually made whenever the Government shows a necessity or desire for such land. The cities of San Francisco, Los Angeles, San Diego, and Long Beach have all made similar grants and without compensation from the government.

Why then this precipitous legislation concerning our oil deposits in the submerged tidelands, which as far as we now know are to be found in but six out of a twelve-hundred-mile coast line? Has the Government made known its wants and attempted to negotiate with us for our property? Does it question the willingness of our people to deal fairly with our Government as we have in the past? Or does it take this unprecedented action merely because the usual negotiations would result in a claim of compensation for the taking of our valuable property?

I sincerely trust that the members of this Committee and the entire Congress have a sufficiently high regard for the loyalty and integrity of the people of California to believe that whether they are negotiating in land, oil, or for port facilities they will deal fairly and unselfishly with their Government, and that

1 Letter of Hon. Culbert L. Olson, Governor of California, dated February 10, 1939, Appendix-Exhibit A.

Senate Joint Resolution No. 4 of the California State Legislature, dated January 24, 1939, Appendix-Exhibit B.

Letter of California delegation in House of Representatives, dated January 26, 1939, Appendix-Exhibit C.

all they ask in return is that their fundamental rights be protected and that 203 their state be treated the same as others similarly situated.

We are in opposition to the Hobbs and O'Connor Resolutions in the House of Representatives (H. J. Res. 176 and 181, respectively) and to the Nye and Walsh Resolutions in the Senate (S. J. Res. 24 and 83 respectively) and believe that one is as objectionable as the others. Indeed it is our belief that although differently stated there is no substantial difference between them. ponents of the legislation are identical and the obvious purpose is the same. The proAll of them propose to take that which belongs to one sovereignty and give it to another, but with the slight variation that two of them propose to accomplish in one act what the others would do piecemeal.

The Nye and O'Connor Resolutions as originally introduced apply in general terms to all coastal States, while the Hobbs and Walsh Resolutions are specifically limited to one State-the State of California. But I believe that even the proponents of the various measures will concede that the elimination of certain states was prompted by expediency rather than principle and that the change was an attempt to divide the opposition and eliminate a portion of it in order that the desired results might at least be accomplished piecemeal. If California is stripped of her lands this year, Texas, Louisiana, Mississippi, et al. will run the gauntlet next session.

So far as the Hobbs and Walsh Resolutions are concerned, we respectfully represent to this Committee that regardless of the needs of the Government with relation to interstate commerce and in connection with the mainenance of a Navy, no argument, legal, moral, patriotic, or otherwise, could be made, justifying the taking, merely by assertion of ownership, of the submerged tidelands of a single State or of the oil pools thereunder. in no different position in the sisterhood of States than does any other State Surely, California should stand similarly situated.

We believe that as presented, none of these resolutions are conservation measures and that if any of them should be adopted and subsequent litigation commenced it would merely result in complete spoliation of submerged tideland oil pools by private operators without any resulting benefit either to the State of California or to the Nation.

It should be kept in mind that the State of California has not gone into the oil business as such for the purpose of draining these oil pools. It has only done so for the limited purpose of preventing private operators on lands adjacent to those on which these pools are located from draining them by such private operations. And whatever deficiencies California may be guilty of in connection with these oil deposits, come not from a desire to deplete the reserves, but from the fact that it stood by too long while the lands were being drained through operations on adjacent lands. It must be remembered that none of

these oil pools are totally under submerged tidelands. The proportions of the pools that are actually submerged range from 1 percent to 80 percent. almost every instance the pool could be drained by neighboring wells which were first drilled on private property. If the offset wells on the tidelands In authorized by the State are closed by legislation such as that now proposed and by litigation that would follow, then there would be an open field for private operations.

It might also be of interest to know that the earliest well drilled by authority of the State was put down over 40 years ago with the acquiescence of the Federal Government and in that particular field almost 98 percent of the total of the oil deposit has been extracted. By and large, over all the tideland drilling operations, an average of approximately 59 percent of the total oil deposits have been extracted up to the present time. It should also be remembered in this regard that the California tideland fields have not been the only public lands that have been thus drained because the Federal Government has itself opened up its naval reserves to private developments for similar reasons. the contest goes on between public and private rights as it does in these cases. In the end the same result will obtain, namely, that the pools will be depleted There and the only question is whether or not the public obtains its fair share of the oil pools or whether it permits them to be exploited entirely by private operators. If new deposits are discovered and they are entirely under submerged tidelands of the State, there will be no depletion, and they will remain intact until public necessity calls them into use. as protected and equally as available in time of emergency as they would be So, in this respect the pools will be equally in the ownership or under the protection of the Federal Government.

The State of California is opposed to each of the four resolutions above referred to for the following reasons:

First, that if adopted and if the litigation following should be successful, the Federal Government would be taking that which always has and which now belongs to the State of California; namely, the submerged tidelands along the 1,200 miles of coast of the State.

Second, whether successful or not, the legislation and subsequent litigation would cloud the title to practically all of the port facilities in California, whether such facilities are State or municipally owned.

Third, the passage of any such resolution would effectively stop financing of waterfront development because of an uncertainty of titles.

Fourth, such action would deprive the State annually of approximately $1,000,000 in royalties which have been contracted and which belong to it of right. Furthermore, it would be deprived of its taxing power with relation to these operations.

Fifth, such claims of ownership on the part of the Federal Government as are embodied in these resolutions have no legal justification.

Sixth, and lastly, the raising of such issues constitutes a gross discrimination against the State of California, which, with its migrant and other problems, has already a back-breaking burden to carry.

It must be evident that the passage of any one of the four resolutions referred to on the part of the legislative branch of the Federal Government would be fraught with peril so far as the financing and development of ports and water-front properties generally is concerned. Any such measure, coming as it does from the legislative branch of the Federal Government, would necessarily raise doubts, no matter how erroneously founded, as to the merchantability of the title of all water-front interests.

Speculation would follow immediately as to whether outstanding bond issues could ever be paid off. It would seem inevitable that no new projects could or would be undertaken until the court of last resort had spoken. If it were known that title to all the port facilities upon which reliance was placed to provide funds to retire a prospective bond issue was challenged, it seems highly improbable that there would be any market whatsoever for new issues. Furthermore, the financing of any further development of water-front property by tax levy would be considered extremely bad business until the issue were thoroughly settled. It is quite evident, therefore, that the passage of any of these resolutions would serve to stagnate water-front development throughout the country for a substantial period of time, irrespective of whether the Federal claim has any sound basis in fact or law, and irrespective of the ultimate outcome of any litigation that would follow the adoption of the resolution.

In matters of this kind, we should not have to rely upon anything except the law applicable to the situation. Considerations of desirability or expediency should be given no weight in the face of established legal principles. If these tidelands belong to the State, and if the courts have so held, and the Federal Government has acquiesced in that view for a century and a half, then under no circumstances, regardless of necessity or desirability, should the government undertake to divest the State of its ownership in this manner. There are constitutional methods of acquiring that which is needed by the Federal Government.

In all the arguments that were propounded in favor of measures similar to this in the last session of Congress, we have found no possible legal theory that could be characterized as more than plausible in favor of these resolutions, and when those theories are carefully scrutinized even the cloak of plausibility vanishes. Nor have we found any case, either among those cited by the proponents or as a result of our own research, that supports the propositions contended for. On the other hand, there are many cases which support conclusions directly opposed to the contentions advanced. These decisions are so numerous and so uniform that it is somewhat difficult to know where to begin in arguing the question. It is also difficult to ascertain clearly what theory the proponents expect us to meet, because a reading of the record of hearing before this committee at the Seventy-fifth Congress on the Nye Resolution. S. J. Res. 208, leads one to the irresistible conclusion that there is no one theory upon which the proponents can agree. Each has his own theory. We believe it is fair to say from a reading of this record that the only point of agreement between them is that the wish to acquire these valuable oil deposits is the father to the thought.

In the following treatment of the law pertaining to this sitution we will 205 undertake to show:

1. That it was the settled rule in England that the title to the soil under tide and submerged lands belonged to the Crown as an attribute of its sovereignty. 2. That the same rule has been applied by the United States Courts consistently since the formation of the national government; and that these sovereign rights have always lodged in the respective states as distinguished from the Federal Government.

3. That the several state courts, and particularly the California courts, have followed this theory and assumed its correctness ever since they became a part of the United States.

4. That California entered the Union upon an equal footing in every respect with its predecessors and that there is no legal or practical distinction between California's title to its tide and submerged lands and that of any other state.

It is our contention that the original thirteen states themselves possessed the fee title to their tide and submerged lands and that they retained the same when they joined together to form a national government. In forming the national government they delegated such powers of a political nature as were necessary to enable it to properly function as an independent sovereign power. However, at no time and in no way did they part with the fee to the lands under navigable waters. They delegated certain express rights to the Federal Government as specified in the Constitution, together with such incidental rights as were necessary to carry out and effectuate those particularly specified.

Among these rights were the right to regulate interstate and foreign commerce, to provide for national defense, and to provide and maintain a navy.

When other states entered the union they did so in each instance upon the express provision that they should be upon the same footing as other states. In individual instances there were certain qualifications and reservations pertaining to such matters as the public domain. In no instance that we have found, however, does it appear that there was any reservation as to the title to lands under navigable waters. So far as we have been able to ascertain, the common understanding at the time of such reservation and ever since then has been that the public domain consisted of territory which was subject to use for purposes of agriculture, habitation, and similar domestic uses.

Each of the states appears after their admission to have understood that there was no reservation of any kind to the Federal Government as far as the title to tide lands is concerned. Each of the states proceeded to administer its water front, to enact legislation with respect thereto, to make grants to individuals and local authorities looking to the development and improvement of harbor facilities, and in all their actions they demonstrated an abiding faith in their right to have and dispose of such lands. Indeed, they had the example of all their predecessor states and also, what is more pertinent here, they had the full acquiescence and cooperation of the Federal Government acting through its three branches of government.

The highest court of our land has repeatedly and unqualifiedly affirmed the titles of the states, the administrative agencies of the government have accepted state ownership as a fact and Congress has legislated in conformity with it. No serious objections have ever been raised to this state of affairs, until now after a century and a half of national existence the astounding proposal encompassed by these resolutions disturbs the happy relationship between the United States Government and the several States.

We believe that the following authorities will establish beyond doubt legal and equitable title to the coastal States to the submerged tide lands along their respective shore lines.

I. AT COMMON LAW TITLE TO ALL TIDELANDS WAS IN THE KING

In Shively v. Bowlby, 152 U. S. 1, Mr. Justice Gray stated:

"By the common law, both the title and dominion of the sea, and of rivers and arms of the sea, where the tide ebbs and flows and of all lands below the high-water mark, within the jurisdiction of the Crown of England, are in the King."

The opinion proceeds to state that insofar as the title for proprietary purposes was concerned it belonged to the King as the sovereign, and that the political dominion over such area vested in the King as the representative of the nation and for the public benefit.

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