This measure is applicable not only to lands and resources underlying bays, harbors, and other navigable inland waters, but also to lands and resources of the Continental Shelf beneath the portions of the open ocean that are within the exterior boundaries of the coastal States.

With respect to lands and resources beneath bays, harbors, and other navigable inland waters, the Federal Government has not asserted, and does not now assert, any claim. In order to provide more certain assurances in this respect, the Department of Justice, the National Military Establishment (now the Department of Defense), and the Department of the Interior jointly drafted a bill relative to this subject and submitted it to the eightieth and eighty-first Congresses. That bill was introduced in the eightieth Congress as S. 2222 and H. R. 5529, and in the eighty-first Congress as S. 2153. Under the provisions of the draft of legislation proposed by the executive branch of the Government on this subject, the United States would quitclaim to the States any interest or title which it may have in and to lands and resources beneath bays, harbors and other navigable inland waters or within areas covered and uncovered by the tides.

However, with respect to the lands of the Continental Shelf beneath the open waters of the sea contiguous to the shore line of the United States, this Department knows of no reasonable justification for making a gift of them, together with their oil and other resources, to the coastal States within whose seaward boundaries they are situated. On the contrary, as the President said in his message on the state of the Union delivered to the Congress on January 4, 1949:

"We must adopt a program for the planned use of the petroleum reserves under the sea, which are and must remain-vested in the Federal Government. * * *""

The Supreme Court of the United States, in United States v. California (332 U. S. 19), in United States v. Louisiana (339 U. S. 699), and in United States v. Texas (339 U. S. 707), decided the question of the respective rights of the United States, on the one hand, and of the coastal States, on the other hand, in and to the submerged coastal lands. The Court's decisions were favorable to the Federal Government. In my judgment, the national interest requires that all the lands and the incalulable resources thus determined to be assets of all the people of the United States shall be held by and developed under the supervision of the Government for the benefit and security of all the people.

For the reasons set out above, this Department is opposed to the enactment of S. 940.

The Bureau of the Budget has advised me that enactment of S. 940 would not be in accord with the program of the President. Sincerely yours,

Hon. JOSEPH C. O'MAHONEY,

OSCAR L. CHAPMAN, Secretary of the Interior.

Chairman, Interior and Insular Affairs Committee,

United States Senate, Washington, D. C.

MY DEAR SENATOR: This is in response to your letter of February 23, 1951, requesting the views of the Department of Justice relative to the bill (S. 940) to confirm and establish the title of the States to lands beneath navigable waters within State boundaries and natural resources within such lands and waters and to provide for the use and control of said lands and resources.

The proposed legislation would attempt to confirm in, and release and relinquish to, the several States all right, title, and interest of the United States in and to all "lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands. The phrase "lands beneath navigable waters" would be defined so as to include not only all lands beneath inland navigable waters, but also all such lands, both submerged and reclaimed, underlying the ocean, extending seaward to a line 3 geographical miles from the shore or to the seaward boundary of a coastal State where such boundary extends seaward beyond 3 geographical miles. There would be excepted from the operation of the measure all lands acquired by the United States by cession, grant, quitclaim or condemnation, lands to which the United States is

entitled under the laws of the respective States, and lands held for the benefit of Indians. An exception would also be made with respect to the activities of the United States in connection with control of navigation, flood control or the production or distribution of power. The question as to the ownership of the subsoil and sea bed of the Continental Shelf, seaward of the boundary of any coastal State would be reserved for subsequent determination by legislation or judicial decree.

The Department of Justice is strongly opposed to the enactment of the proposed legislation.

This measure has as its objective the nullification of the decisions of the Supreme Court in United States v. California (332 U. S. 19), United States v. Louisiana (339 U. S. 699), and United States v. Texas (339 U. S. 707). In those cases the Supreme Court held that the respective States do not own the lands underlying the ocean adjacent to their shores and that the power to control the development and disposition of the mineral resources situated in such offshore lands is vested in the United States and not in the coastal States. As a consequence, the proposed legislation, notwithstanding its broad scope and its use of language implying a confirmation or quitclaim, would constitute an outright gift or transfer to three coastal States of valuable resources which belong to the people of all of the States. The Supreme Court has held that the three coastal States involved in the litigation do not and never have owned these resources. They belong to all of the people of this country. Section 1 of the bill, therefore, misstates the facts and the law, as found and determined by the Supreme Court. This Department has consistently opposed bills of this character introduced in earlier Congresses (see H. J. Res. 225, 79th Cong.; S. 1988, 80th Cong.; and S. 1545, 81st Cong.). During the present national emergency, when the very existence of this country may well depend on the proper conservation and development of its petroleum resources, it is all the more important that the United States should not, by action of this type, attempt to abdicate its rights and responsibilities in the tremendously valuable submerged ocean lands adjacent to its shores. Indeed, in view of the reasoning employed by the Supreme Court in the Offishore litigation, this Department entertains a grave doubt as to the validity of a measure designed to surrender to certain States those rights and dominion of the United States which are held as incidents of its national sovereignty, since, as the Court pointed out in the California case, "the State is not equipped in our constitutional system with the powers or the facilities for exercising the responsibilities which would be concomitant with" such rights and dominion (332 U. S. 19, 35).

In view of the opposition of this Department to S. 940 as a whole, no discussion of particular provisions thereof seems necessary. However, it may be mentioned that Section 6 of the bill, which would save for future determination any issues between the United States and the respective coastal States as to the ownership and control of the subsoil and seabed of the Continental Shelf outside of State boundaries, would appear to serve no useful purpose. A similar provision appeared in S. 1545, Eighty-first Congress, with which S. 940 seems to be identical. However, in the recent decisions in the Louisiana and Texas cases, referred to above, the Supreme Court disposed of these issues adversely to the claims of those coastal States.

The Director of the Bureau of the Budget has advised that there is no objection to the presentation of this report, since the enactment of the bill would not be in accord with the program of the President.

Yours sincerely,

PEYTON FORD, Deputy Attorney General.

The CHAIRMAN. There will also be inserted at this point in the record a letter from the Secretary of Defense, which is dated March 27, 1951.

(The letter referred to is as follows:)

THE SECRETARY OF DEFENSE, Washington, D. C., March 27, 1951.

Hon. JOSEPH C. O'MAHONEY,

Chairman, Committee on Interior and Insular Affairs,

United States Senate.

DEAR MR. CHAIRMAN: Reference is made to your recent request for a report by the Department of Defense with respect to S. 940, a bill to confirm and establish the title of the States to lands beneath navigable waters within State bound

aries and natural resources within such lands and waters and to provide for the use and control of said lands and resources.

We have reviewed the Department of Interior's report, dated 23 March 1951, with respect to this bill, and concur wholeheartedly in the views set forth therein.

For the reasons set forth in the Department of Interior's report, the Department of Defense is opposed to the enactment of S. 940.

The Bureau of the Budget reports that the enactment of S. 940 would not be in accordance with the program of the President.

Faithfully yours,

G. C. MARSHALL.

Senator ECTON. Could I ask you one question for your comment, Mr. Chairman?

The CHAIRMAN. Yes.

Senator ECTON. I understand that the Federal Government has jurisdiction over all navigable streams. Now, those are inland waters

The CHAIRMAN. By virtue of the Rivers and Harbors and Flood Control Acts.

Senator ECTON. I find it hard to reconcile that fact with the statement that you made that the Federal Government has never made any claim to inland waters.

The CHAIRMAN. I see the difficulty that has risen in the Senator's mind.

Senator BUTLER. I would like to give you an illustration in that connection, too.

The CHAIRMAN. But now I am talking about the principle which is involved.

Senator BUTLER. Yes.

The CHAIRMAN. The Federal right, the Federal jurisdiction over rivers and harbors, arises from constitutional power granted to the Federal Government to control navigation.

I have not any doubt-in fact, I know, and I do not mind saying this in the presence of the distinguished representative of the Department of the Interior-that the Department, through the Bureau of Reclamation particularly, on numerous occasions has endeavored to extend that power to take in jurisdiction which is not originally contemplated.

The control of navigation, however, must be distinguished from the right to the deposits in the lands under the navigable waters, and there is nothing of which I have any knowledge in the Constitution or in the laws upon which can be based a claim to the property rights on navigable waters in the United States.

Senator ECTON. It has made it even harder for me to reconcile the two statements, Mr. Chairman, in view of the fact that it has been represented that any stream large enough to float a log is supposed to be navigable and, therefore, under the jurisdiction of the Federal Government.

The CHAIRMAN. Please make the distinction between the jurisdiction over navigation, which is on the surface, and jurisdiction and ownership of the properties beneath the stream.

There can be no question that even with respect to such a navigable stream the property rights lie in the States through which the stream passes.

Senator BUTLER. I would like to ask in that connection then why it was necessary, when we passed a law here back around 1941, creat

ing the Tri-State Compact between and among Colorado, Nebraska, and Kansas, for the President to veto the first bill we put through, because in the bill we did not expressly admit that the stream was navigable, and it would not even float a log. I learned at that time that all streams are navigable, even the little tricklets at the upper end.

The CHAIRMAN. A stream that will float a toothpick is navigable in the mind of an attorney in the Bureau of Reclamation. With that point of view, I do not agree.

Senator BUTLER. Any stream whose water flows into a navigable stream-and that takes in every little tricklet in the United Statesis technically navigable under the law.

Senator WATKINS. If you want to get down to the fine points, you should follow the rain that comes down. It all gets into the navigable stream.

The CHAIRMAN. This controversy over the jurisdiction of navigable streams has arisen as the result of the development of modern projects, and the Bureau of Reclamation has undoubtedly sought to extend its power beyond what I regard to be the proper limit. But it remains clear that there is a distinction between jurisdiction over navigation and the property rights.

Senator BUTLER. Well, it is going to be a pretty difficult job to draw that distinction, I think, Mr. Chairman, because undoubtedly there are those in Government who figure that the Government, the Federal Government, owns the water back of the dams that are created on nonnavigable streams.

The CHAIRMAN. That is another question to be decided.

Senator BUTLER. But it just involves this whole question of what belongs to the States and what belongs to the Federal Government. The CHAIRMAN. We are now legislating on it, and we can clear that thing up, and I may say to the Senator I think I have very clearly and simply described the differences between the two points of view.

Senator LONG. Might I comment on your statement, Mr. Chairman? It will not take me more than 4 or 5 minutes.

The CHAIRMAN. Yes, indeed.

Senator LONG. I agree with the chairman that there is a great need for oil production; and, although I believe that the best solution to it would be by the type of legislation that 35 Senators have introduced as a quitclaim bill, insofar as the States' original boundaries are concerned-I believe that the remainder of the chairman's statement is an argument for the Federal Government side for greater national power.

Now, in the first place, there was language even in the California decision, in which Justice Black said that in all of the previous decisions of the Supreme Court there was certainly language strong enough to indicate that the previous courts of the United States believed that the States possessed the lands covered by the waters in their marginal sea falling within their original boundaries.

I do believe that the Congress itself should pass upon this argument that the States never possessed any sovereignty and, therefore, could have none, because if we hold that argument to be true and I believe it to be a complete distortion of the history of this Nation as well as a distortion of the law of this Nation-then we are going to

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find vast new powers in the Federal Government that hitherto we did not know to exist.

For example, this statement was made here today that the Federal Government's power over the navigable streams was based on the fact that the Federal Government was given the right to control navigation.

Now, originally, the States were held to own the bed of the streams on the ground that that was an attribute of sovereignty and that the Crown surrendered that particular attribute of sovereignty to the States individually, which meant that they owned the beds of the arms of the sea. It is my understanding that that doctrine itself evolved from the previous argument and accepted law of England that the Crown owned the bed to the marginal sea; and, owning the bed to the marginal sea, the crown also owned the arms of the sea affected by the rise and fall of the tide, which was described as tidewater.

Now, if we find that the States possessed no sovereignty then, certainly you could properly say they did not possess the beds of their navigable streams or the beds underlying their marginal waters; but it would seem to me completely unfair to say that as an attribute of sovereignty the States possessed the beds of all arms of the sea but did not possess the beds of the marginal sea falling within a State's boundary.

We are not contesting and arguing, so far as the quitclaim legislation is concerned, about land that falls outside the State's original boundaries. This is an argument over lands that fell within the State's original boundaries.

The States felt themselves to be sovereign at the time they joined in the Articles of Confederation. They stated that no State was surrendering its sovereignty or independence, and the Articles of Confederation provided, as I understand it, that, for it to become binding upon a State, nine States had to agree, and without a State's consent it was impossible to enforce anything upon the States.

The surrender by the Crown to the States used the word "individually" that the Crown surrendered individually to those States-and certainly over the period of the last 150 years a lot of people who thought there was a great significance to the fact that the States signed a Constitution that gave limited power to the Federal Government-that is what they thought—and I believe it is a distortion of history to say that the States were one nation before they ever signed the Articles of Confederation or the Constitution, because to say that would make a farce of article X, which says that all powers not given to the Federal Government are reserved to the States and to the people. I believe you will find that the Declaration of Independence was delayed in the Continental Congress in order to permit the forming of local governments, to be formed, according to the diary of John Adams, so that these local governments could claim their proper rights in claiming their independence. And all of those things, I believe, will show that the States did possess sovereignty. It would be a complete farce to me to go back now and say that there always did exist a United States of America even without a Constitution or anything of that sort. Certainly it would be ridiculous to say that as an attribute of State sovereignty the State possessed the beds of all