The Supreme Court, however, pitched the main part of its decision on the equal-footing clause rather than on the other argument. We made both contentions. They pitched, as I say, their decision on the equal-footing clause in the Constitution. Senator LONG. As I understand it, Texas had reserved her public lands. Mr. PERLMAN. That is right. Senator LONG. And so, if the Supreme Court had held the marginal sea and the beds under the marginal sea to be public lands, then Texas would have been logically in possession of those lands; would she not? Mr. PERLMAN. That is right. Senator LONG. And, in order to conclude that Texas did not possess her tidelands, it was logically necessary that the Court would conclude that that was not public lands. Mr. PERLMAN. I think so. That is what our contention was in that case. We do not think they are public lands, and we also do not think that the Mineral Leasing Act applies. Senator LONG. That is all the questions I have. Do you have any further questions, Senator Cordon? Senator CORDON. I have one I would like to ask of Mr. White. Senator LONG. The witness has been tireless in answering all these questions today, and we appreciate him staying through all this crossexamination. Senator CORDON. With some little provocation at times, I suspect. Mr. PERLMAN. Thank you very much. I hope I have not been too inaccurate. I have tried to give you all the information I have and to be as frank as I could on it. Senator LONG. Thank you very much. (Mr. Perlman subsequently submitted the following letter relative to S. 940.) Hon. JOSEPH C. O'MAHONEY, Chairman, Committee on Interior and Insular Affairs, United States Senate, Washington, D. O. APRIL 2, 1951. MY DEAR SENATOR: I desire to bring to the attention of the committee a matter which was not fully discussed during my appearance at the hearing held March 28, 1951, relative to S. 940. This relates to the area of submerged ocean lands which the proposed legislation would purport to surrender to the respective coastal States of the Union. Section 2 (a) of S. 940 would define the area to be affected by the measure as that extending seaward to a line three geographical miles distant from the coast line of each coastal State and to the boundary line of each such State where in any case such boundary, as it existed at the time such State became a member of the Union, or as heretofore or hereafter approved by Congress, extends seaward beyond three geographical miles. It is the position of the Department of Justice that such a provision, if enacted, would inject into this matter a problem which has no real relation to the issues involved. As I advised the committee when I appeared before it on February 19, 1951, the Supreme Court has held that the question of boundary is one thing and the matter of ownership of, or paramount rights over, the lands and resources within that boundary is something entirely different. It is for this reason, as I informed the committee, that the United States sought successfully in the cases of United States v. Louisiana (339 U. S. 699), and United States v. Texas (339 U. S. 707), to exclude the question as to the validity of the unilateral claims presently asserted by those States to jurisdictional boundaries situated farther seaward than the 3-mile limit claimed by the United States. Louisiana presently claims, by State statute, a line 27 marine miles from shore, while Texas, by act of its legislature, has purported to extend its seaward boundary to the outer edge of the Continental Shelf, a line varying from 60 to 140 miles offshore. The Department of Justice is, as has been indicated, strongly opposed to the enactment of S. 940 in any form. However, since the measure proposes to surrender to the coastal States rights of the United States which begin at low-water mark, regardless of the claimed jurisdictional boundaries of a particular State, the bill, if enacted, would result in an inequality of treatment as between the several coastal States to be benefited by its provisions. In this connection, it may be mentioned that the contentions which would probably be made by certain coastal States as to their original or subsequently approved seaward boundaries would undoubtedly lead to much difficulty and confusion. A few examples of such probable contentions are as follows: The State of Texas claims that it entered the Union with a seaward boundary situated 3 leagues from shore, this being the boundary theretofore claimed by the Republic of Texas, although the joint resolution of December 29, 1845 (9 Stat. 108), admitting Texas to the Union, referred to the area covered thereby only as "the territory properly included within, and rightfully belonging to, the Republic of Texas * * As we advised the Supreme Court during the argument of the Texas case, the concept of the marginal sea, as we know it today, did not exist in international law in 1845. The State of Florida, when admitted to the Union by the act of March 3, 1845 (5 Stat. 742), made no specific claim with respect to its seaward boundary. However, by the third State constitution adopted February 25, 1868, Florida claimed a seaward boundary situated in the Atlantic Ocean along the edge of the Gulf Stream (4 to 25 miles off the east coast) and in the Gulf of Mexico the seaward boundary of the State was fixed in this 1868 constitution at 3 leagues from shore. The act of Congress recognizing this constitution as "republican" in form (act of June 25, 1868, 15 Stat. 73) made no mention whatever of the boundary provisions set forth in the constitution. It has been indicated that certain other States may possibly assert that their seaward boundaries are situated more than 3 miles from shore, although their boundaries have never been specifically so described. For example, the seaward boundaries of the States of Alabama and Mississippi are originally described as "the Gulf of Mexico * * * including all islands within 6 leagues of the shore." (See act of March 2, 1819, 3 Stat. 489 (Alabama) and the act of March 1, 1817, 3 Stat. 348 (Mississippi).) Similarly, the original seaward boundary of Louisiana was not set forth in its act of admission of April 8, 1812 (2 Stat. 701), as the "Gulf of Mexico * * * including all islands within 3 leagues of the coast." In the view of this Department, the inclusion of all islands within a certain distance of the coast does not extend the seaward boundary of a State to a line that distance from shore or enlarge the marginal sea so as to embrace all waters between the mainland and any island within such distance. Indeed, some of the early colonial charters granted by the English crown included all islands with such distance as 5 leagues, 10 leagues, or even 100 miles of the coast, but it was never suggested that all waters within such distances were within the boundaries of the Colonies. As a matter of fact, the first State on the Atlantic seaboard to extend its seaward boundary out to the 3-mile limit was Massachusetts, and this action was not taken until 1859 (Mass. Acts, 1859, c. 289, p. 640). It may also be mentioned that this interpretation of the meaning of the language "including all islands within 3 leagues of the coast" seems to have been concurred in by the attorney general of Louisiana, who, in a 1934 opinion, ruled that at that time the southern or seaward boundary of the State of Louisiana, as described in the 1812 act of admission, was the Gulf of Mexico (Opinions and Reports of the Attorney General of Louisiana, 1934–36, p. 685). Another difficulty may be encountered as a result of a claim recently made by the State of California. The Constitution of California, referred to in the act of admission of September 9, 1850 (9 Stat. 452), describes the western boundary of the State as located 3 English miles in the Pacific Ocean and as including "all the islands, harbors, and bays along and adjacent to the Pacific coast." By an act of its legislature approved April 25, 1949 (ch. 65, California Statutes, 1949), California has attempted to implement this description of its seaward boundary by providing that the base line from which the 3 English miles are to be measured shall be a series of straight lines drawn along the outer side of the outermost of all the islands, reefs, and rocks along the coast of California, some of which are almost 60 miles from the mainland. Some of the coastal States have not yet claimed a boundary of 3 miles from the lowwater mark. Any effort to give rights in submerged lands according to claimed boundaries would result in great discriminations and cause pressure for more legislation. Such difficulties as those I have described would result not only in unequal treatment of the various coastal States but also in potential embarrassment to the Federal Government in its conduct of foreign relations. As I recently advised the committee, the United States, as a Nation, has adhered to the doctrine of the freedom of the seas, and to a maximum limit of 3 miles as the width of territorial waters. It has been determined to be in the interest of the United States, as a Nation, to maintain this position and to protest certain claims by other nations to marginal sea belts of greater width. Some of these situations are in various stages of present discussions, and it is fair to say that they are of great importance because of their impact on many aspects of international relationships. It is obvious, therefore, that any congressional recognition of State boundaries situated more than 3 miles from shore, particularly in a bill of this character, which was apparently prepared without any full study of the international problems involved, would result in considerable difficulty for the United States in the conduct of foreign relations. It will be greatly appreciated if this communication is made a part of the printed record of the hearings on this matter. Sincerely yours, PHILIP B. PERLMAN, STATEMENT OF MASTIN G. WHITE, SOLICITOR, DEPARTMENT OF THE INTERIOR Senator CORDON. Mr. White, is it now not settled law that, with reference to the public domain, no land, even though there may be nothing of record with respect to any entry thereon, is deemed to be unappropriated, subject to an entry, while it is in the actual possession of some person? Mr. WHITE. I think, generally speaking, that is true, Senator. Senator CORDON. I think you will find a series of decisions right to the point on it. It goes even to perhaps all entries. Mr. WHITE. Let me say, just by way of a further supplement to my brief remarks a moment ago about the scrip applications, that the question of the validity of those applications is presently before me for decision, and that I shall be obliged in due course to render a decision on the point. I merely wanted to outline the problem in answer to Senator Long's question. It is true that the Department of the Interior has received quite a number of scrip applications for submerged coastal lands during recent years. The first ones that were filed with the department, insofar as submerged coastal lands are concerned, related to lands along the coast of California. But in more recent years we have had quite a number of filings with respect to submerged lands in the Gulf of Mexico, and I believe that, as Senator Long stated, most of those filings, or perhaps all of them, relate to lands which are now producing oil or which are thought to contain oil. The matter of the validity of the filings has been referred to me by the Secretary of Interior for the rendering of an opinion, and the matter is presently under consideration in the Solicitor's office. Senator LONG. As I understand it, you have ruled on previous occasions that these submerged lands are not public lands? Mr. WHITE. That is true, Senator. In the opinion which I rendered on August 8, 1947, with respect to the applicability of the Mineral Leasing Act to the submerged coastal lands, I based the negative decision, among other grounds, on the ground that these are not public lands and consequently are not subject to the Mineral Leasing Act, which earlier decisions of Attorneys General had held to be limited in scope and applicable only to public lands or the public domain. Senator LONG. I understand from Senator Wheeler's testimony that you had seen some merit to the position that he was urging: That these lease applicants under the Federal leasing law should have their rights protected, or at least that they had the right to file. Now, was your opinion at that time given before the Texas decision? Mr. WHITE. The former Senator Wheeler was probably referring to a conference in my office which was held after the California decision was rendered but prior to the time when the Louisiana and Texas decisions were rendered by the Supreme Court. He probably had reference to a statement which I made at that time, and which in substance was about as follows: that if the question as to the applicability of the Mineral Leasing Act to the submerged coastal land had been the first question ever to arise with respect to the scope of the Mineral Leasing Act, and if it had been presented to me for decision, I would probably have been inclined to say that the Mineral Leasing Act did apply, because it provides in general language that the Secretary of Interior may issue leases on deposits of sodium, potassium, phosphate, coal, oil, gas, and oil shale, and lands containing such deposits, owned by the United States. Those are very broad expressions. And at the time that we were discussing the matter I construed the California decision as being to the effect that the United States owns the submerged coastal lands of the Continental Shelf extending seaward from the ordinary low-water mark on the coast and lying outside of inland waters. However, I went on to explain to Senator Wheeler the long history that was pertinent with respect to the interpretation of the Mineral Leasing Act and the meaning of those words, the substance of which I recited a moment ago. I called his attention to the fact that the question presented to me in 1947 was certainly not the first one that had arisen with respect to the scope and meaning of the Mineral Leasing Act. I called his attention to the fact that as early as 1924 an Attorney General of the United States had been called upon to determine the scope of the Mineral Leasing Act, and that he had decided that the Mineral Leasing Act was limited in scope and was applicable only to public lands or the public domain of the United States. I recited to Senator Wheeler, further, that a later Attorney General of the United States had reviewed that question in 1941 and had reaffirmed the view expressed by Attorney General Stone in 1924, to the effect that the Mineral Leasing Act is applicable only to public lands or the public domain of the United States. Then I further recited the fact that Congress itself, when it passed the Mineral Leasing Act for Acquired Lands in 1947 for the purpose of extending the scope of the Mineral Leasing Act of 1920 to Government-owned lands other than the public domain, had expressly excepted submerged lands and tidelands from the scope of this amendatory statute which was designed to extend the applicability of the Mineral Leasing Act. I stated to Senator Wheeler that in the face of the history of the interpretation by Attorneys General of the scope of this statute, and in the face of the action by Congress itself in 1947, clearly indicating a belief upon the part of Congress that submerged coastal lands were not then subject to the Mineral Leasing Act and ought not to be made subject to the Mineral Leasing Act, I had no alternative in rendering my opinion of August 8, 1947, but to say that the Mineral Leasing Act does not apply to submerged coastal lands. Senator LONG. Now, had the United States courts ever spoken on that question, particularly the Supreme Court, at the time you told Senator Wheeler what your opinion was in this matter? Mr. WHITE. The Supreme Court had expressed the view that the term "public land," when used in statutes relating to the disposition of land, did not go so far as to include lands below the ordinary highwater mark on the coast. Senator LONG. The courts at that time had made that statement? Mr. WHITE. That is correct. Senator LONG. The Supreme Court? Mr. WHITE. That is right, sir. Senator LONG. In other words, what you told Senator Wheeler was to the effect that if you were passing on this question independently, and were the first one to pass on it, that you would think well of his argument, but that the Congress had passed on it, the courts had passed on it, and Attorneys General of the United States had passed on it, and they had all disagreed with him? Mr. WHITE. That is right, in substance. Senator LONG. Now, that was prior to the decision in the Texas case; was it not? Mr. WHITE. That is correct, Senator. Senator LONG. Now, in the Texas case the Court was presented with the problem that Texas had reserved its vacant and unappropriated lands and its public land, as I understand it, and that that reservation of its public land did not reserve its tidelands. Now, that would seem to me to say in effect that tidelands are not public lands. Mr. WHITE. Well, I certainly agree with you, Senator. The only thing that I had in mind in discussing this problem with Senator Wheeler was whether the Mineral Leasing Act itself was limited to public lands, and as to that I was bound by decisions of Attorneys General to the effect that the Mineral Leasing Act was so limited. Senator LONG. Yes. Mr. WHITE. I do not think there is any doubt, at least I have no doubt, on the question as to whether these lands beneath the open sea, lying seaward of the low-water mark and outside of inland waters, are or are not public lands, in the sense in which that term is customarily used in Federal statutes respecting the disposition of land. They are not public lands, in my opinion. Senator LONG. I see. That is one point I wanted to clear up. Suppose you go ahead with the other statement you had in mind now. Did you have a prepared statement, Mr. White? Mr. WHITE. No, Mr. Chairman, I do not have a prepared statement, but I should like to take advantage of this opportunity by supplementing very briefly Solicitor General Perlman's testimony with respect to S. 940. I appear here pursuant to the invitation of Chairman O'Mahoney, and in accordance with an oral authorization and direction from Secretary Chapman to appear before the committee for the purpose of making known to the committee his strong opposition to S. 940, A |