Amicus Curiae Brief — United States v. Maine

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INDEX

MOTION FOR LEAVE TO FILE _..

INTEREST OF AMICUS CURIAE ._.. .---

QUESTION PRESENTED

SUMMARY OF ARGUMENT

ARGUMENT

II.

III.

The formation of our nation and adoption

of our Constitution did not confer or

allocate exclusive legal rights in the

outer continental shelf (hereinafter

“Shelf’”’) as between the states of the

Union (hereinafter “States”) and the

Federal Government of the United

Neither ancient grants nor territorial

boundaries limit either State or Federal

legal rights in the Shelf... _--________

The policy basis underlying the first

California submerged lands case has

been reversed by Congress, leaving it

without controlling or even persuasive

force in deciding the present controversy.

SORA LD SLRS HEEL ROE LOS IIL

VI.

VIL

IV.

CONCLUSION

CERTIFICATE OF SERVICE

. INDEX (cont.)

The Constitutional powers delegated to

the Federal Government by the States

cannot be shown to require exclusive

Federal jurisdiction over the Shelf. ____..

The coastal States have some,legal rights

in and may exercise jurisdiction over the

Shelf unless these ‘rights and powers

have been Constitutionally taken by the

Federal Government since 1945.

Neither Congress nor the Executive has

excluded all coastal State rights in and

" jurisdiction over the Shelf and its re-

sources.

The Court should declare the concurrent

Federal-State rights in and jurisdiction

over the resources of the Shelf and leave

the continuing political questions to be

resolved by the Executive and Legisla-

tive Branches and the coastal States. __

APPENDIX:

Excerpt from the Legislative History of the

Submerged Lands Act and the Outer Continen-

tal Shelf Lands Act, H.R. Rep. No. 215, 88rd

Cong,, 1st’ Sess.; 1958 U.S. Code Cong. and >

Admin. News, Vok 2, 1417-1422.

Page

CITATIONS

Case

Cook v. Wilson,

193 S.W.2d 818 (1946)

Harcourt v. Gaillard,

Huron Portland Cement Co. v. Detroit,

Matson Navigation Co. v. United States (The

- Montebello), 141 F.Supp. 929 (Ct. Cl., 1956) . 11

Missouri v. Holland,

252 U.S. 416 ; ; 24

North Sea Continental Shelf Cases,

(1969) LCJ. 3

Rodrique v. Aetna Casualty Co.,

Sarpey County, Nebraska v. United States,

386 F.2d 453 (Ct. Cl., 1957) -: 3

Texas Oil and Gas Corp. v. Phillips Petroleum Co.,

277 F.Supp. 366 (1967) : 87, 49

United States v. California, .

332 U.S. 19 15, 17, 18, 19, 20, 21, 38, 46

‘4 \ ‘ ‘

CITATIONS (cont.)

Case Page

United States v. Cohn Grocery Co.,

225'U.S. 81 41

United States v. Florida,

i iieerencencinidineed 15, 23, 39, 57

United States v. Louisiana,

ee 15, 17, 19, 20, 38

United States v. Louisiana,

eb OLE SSEROMTO TE LT CO 15, 28

United States v. Ray,

423 F.2d 16 (1970) 39

United States v. Texas,

389 U.S. 707 oepiciewitinntokhe May hay aes ae

)

Washington v. United States,

(eee Oe a

Wilson v. Cook,

827 U.S. 474 ie ae

Zechernig v. Miller,

389 U.S. 429 RES 24

CITATIONS (cont.)

Page

CONSTITUTION, TREATY AND STATUTES

Articles of Confederation, Art. IX 6

Constitution of the United States of America

SU i te Me OO aint 6

og i ENE LE LES OLE RS RITA OE 41

Amend. X . eldiienin’

Convention on the Continental Shelf, 15 U.S.T.

Se ee i a i ee 22, 28

Federal Water Pollution Control Act, 84 Stat. 91;

Se Uwe § tie a : 47

Outer Continental Shelf Lands Act of 1953, 67 Stat.

462; 43 U.S.C. §§ 1831-1843 _ 16, 17, 22, 28, 38, 41,

42, 45, 48

Submerged Lands Act of 1958, 67 Stat. 29; 43

U.S.C. §§ 1801-1815 _. 15, 18, 20, 41

Water Quality Improvement Act of 1970, Pub. L.

No. 91-224, Title I (Apr. 3, 1970)

CITATIONS (cont.)

MISCELLANEOUS

Page

American Jurisprudence 2d, Vol. 2, Admiralty

(1962) 24

Bouvier’s Law Dictionary, Vol. 2, Right (1897) __. 9

Corpus Juris Secundum, Vol. 77, Right (1952) ____. 9

Dept. of the Interior Press Release, Aug. 14, 1969 30

Dept. of State Bull., Vol. 50 (Jan. 13, 1964) _..____. 37

Draft United Nations Convention on the Interna-

tional Sea-Bed Area (Working Paper Sub-

mitted by the United States to the United Na-

tions Committee on the Peaceful Uses of the

Sea-Bed and the Ocean Floor Beyond the

Limits of National Jurisdiction), 25 U.N.

GAOR, Supp. No. 21 (A/8021) (1970) 21

Executive Order No. 9633; 10 F.R. 12305; 3 C.F.R.

437 (Supp., 1957) _._.................-. 13, 15, 23, 36, 42, 45

Executive Order No. 10,426; 18 F.R. 405; 3 C.F.R.

924 (Supp., 1958) 2 14, 28, 45

Griffin, Accommodation of Conflicting Uses of

Ocean Space with Special Reference to Naviga-

tion Safety Lanes, in Proceedings of the Sec-

ond Annual Conference of the Law of the Sea

Institute (1968) 26

vii

CITATIONS (cont.)

; Page

Gutteridge, the 1958 Geneva Convention on the Con-

tinental Shelf, XXXV Brit. Yb. Int'l. L. 102

ERE receded acersceminsccendtrtseinesundicseniiesealnbevasccasitintewncoen 10

Heinzen, The Three Mile Limit: Preserving the

Freedom of the Seas, 11 Stan. L. Rev. 597

(1959) ecananchidieneoniaiaagiitie 14

H.R. Rep. No. 215, 83d Cong., 1st Sess. (1953)... —s_-86

H.R. Rep. No. 418, 88d Cong., Ist Sess. (1953) 16

H.R. Rep. No. 1778, 88d Cong., Ist Sess. (1953) __. 9

McDougal and Burke, The Public Order of the

Oceans (1962) seinignat COC Ramat nei 24

McKelvey and Wang, World Subsea Mineral Re-

sources (Dept. of the Interior, U.S. Geol. Sur-

vey, 1969) _..... soedpsteslesicesedbenlchaniedna scmeetlon 30-32, 33

Nanda and Stiles, Offshore Oil Spills: An Evalua-

tion of Recent United States Responses, 7 San

Diego L. Rev. 519 (1970) 54

New York Times, Sep. 3, 1971 54

Presidential Message to Congress, Jun. 11, 1970;

116 Cong. Rec., No. 96, p. S8823 53

. . Nae bis Dace Mv RR Stee Tl

_— FRIES EA LAER G8 SEL RN POET FRAP OY ERE OL FELT

viii

CITATIONS (cont.)

Page

Presidential Proclamation No. 2667, Sep. 28, 1945;

a FG aise ciincs 10, 18, 15, 23, 36, 45

Presidential Statement [on Ocean Policy], 116 Cong.

Rec. X, p. S7747 (May 25, 1970) -...........---.---- 21

Report of the President to Congress on Marine Re-

sources and Engineering Development, April,

1970 51, 52

Report of the President to Congress on Marine Re-

sources and Engineering Development, April,

1971 52

Restatement II, Conflict of Laws, Proposed Official _,

Draft (1968) 38

Restatement II, Foreign Relations Law of the

United States (1965) _.. 38

Sutherland, Statutory Construction, Vol. 2 (8d ed.,

1943) 41

1958 U.S. Code Cong. and Admin. News,

Vol. 2 aceeaaon 9, 43, App.

White House Press Release, Sep. 28, 1945 _.......... 13, 36

Whiteman, Digest of International Law, Vol. 4

(Dept. of State Publication 7825, 1965) — 18, 14, 19,

‘28, 85

ABBREVIATIONS AND USAGE IN THIS BRIEF

California case United States v. California, 382

U.S. 19 (1947).

ICJ Opinion North Sea Continental Shelf

Cases, 1969 I.C.J. 3 (1969).

OCSLA Outer Continental Shelf Lands

Act, 67 Stat. 462; 43 U.S.C.

$$ 1331-1343 (1953).

Shelf Continental Shelf; 43 U.S.C.

§ 1831 (a) ; 15 U.S.T. (Pt. 1)

ATI, Art. 1.

Shelf Convention Vd 1958 Geneva Convention on the

| Continental Shelf, 15 U.S.T.

| (Pt. 1) 471.

State \ State of the United States.

SLA " Submerged Lands Act, 67 Stat.

. 29; 43 U.S.C. §§ 1801-1815 -

(19538).

Truman Proclamation Presidential Proclamation No.

2667, Sep. 28, 1945, 59 Stat.

884 (1945).

U.S. Brief Brief for the United States in

Support of Motion for Judg-

. ment in this case.

Whiteman Digest Whiteman, Digest of Interna-

tional Law, Vol. 4 (Depart-

ment of State Publication

No. 7825, 1965).

a NONE LIE PLIERS LOLI LLM OLE DP LITE EEE NL ETE

Se Poe eee

pth tie

ORCI NIE EFS SAS

M-1

in the

Supreme Court

of the

Gnited States

OCTOBER TERM, 1971

No. 35, ORIGINAL

UNITED STATES OF AMERICA,

Plaintiff,

vs.

STATES OF MAINE, NEW HAMPSHIRE, MASSACHU-

SETTS, RHODE ISLAND, NEW YORK, NEW

JERSEY, DELAWARE, MARYLAND, VIRGINIA,

NORTH CAROLINA, SOUTH CAROLINA, AND

GEORGIA

MOTION FOR LEAVE TO FILE BRIEF

AS AMICUS CURIAE

The undersigned as counsel for The Florida Council

of 100, Inc., a non-profit corporation of the State of Flor-

ida, move for leave to file the attached brief as amicus

curiae in the present controversy—in order to present to

M -2

this Court: a) a new line of argument which has never

been presented to or considered by this Court in the pres-

ent or in prior submerged lands cases; and b) argument

and a recommended conclusion different from the posi-

tions assérted by the Plaintiff and Defendants in the pres-

ent controversy, specifically an argument of concurrent

Federal and State jurisdiction which is unlikely to be ad-

vocated by any of the parties in this case. The interests of

justice will be served if the parties in this case respond

to the arguments in the attached brief.

Koi M Morras

Dennis M. O’Conrior

illard D. Dover

Counsel

Return address:

Box 8061

Coral Gables, Florida 33124

EEO LEYLA IIRL GEIR BORER IE OED IEEE NY EGE ISP LEDESMA PEE

in the

‘Supreme Court

of the

Gnited States

OCTOBER TERM, 1971

No. 35, ORIGINAL

THE UNITED STATES OF AMERICA

v8.

THE STATE OF MAINE, et al.

BRIEF OF AMICUS CURIAE

INTEREST OF AMICUS CURIAE

The Florida Council of 100, Inc., a non-profit cor-

poration of the State of Florida founded in 1964, is dedi-

cated to the purposes of improvement and development

of the economic climate of the State and the nation.

Issues of the optimum development and conservation of

the submerged lands of the Atlantic Continental Shelf

and the continental shelf of the United States are within

these interests. The Executive Committee of the Florida

Council of 100 has authorized the submission of this

brief.

Counsel individually also have a professional interest

in the resolution of the present controversy through the

rational development and determination of the law re-

lating to the issues of this case. Dennis M. O’Connor is

Professor of Law and Marine Sciences, and Director of

the Ocean Law Program, at the University of Miami.

Willard D. Dover has served as Chairman of the Bound-

aries Committee, and as a Commissioner, of the Florida

Commission on Marine Sciences and Technology.

Appreciation is expressed to the Florida Commission

on Marine Sciences and Technology for a research grant

to the University of Miami which permitted completion

of certain research upon which this brief is in part based.

STATEMENT

This suit was brought to establish as against the

defendant States exclusive rights over the seabed and

subsoil of the continental shelf lying off their shores

under the Atlantic Ocean. The State of Maine issued a

prospecting permit for oil and gas exploration on the

continental shelf lying off its shores. The other defend-

ant States had made various claims to assert some rights

in and jurisdiction over the portions of the continental

shelf off their shores. When the Executive Branch found

after communication with these States that they would

not relinquish entirely all claims to some rights in and

jurisdiction over the continental shelf, the Federal Gov-

ernment brought this suit “for a declaration of the

exclusive rights of the United States, as against the de-

fendant States, in the subsoil, seabed, and natural resources

underlying the Atlantic Ocean, including the Straits of

Florida, more than three geographical miles from the

ordinary low-water line and from the outer limit of inland

waters ...” (Complaint, p. 10.) |

QUESTION PRESENTED

Whether rights in and jurisdiction over exploration

and exploitation of the resources of the continental shelf

underlying the Atlantic Ocean beyond three miles from

the coastline belong to the United States or to the de-

fendant States exclusively or concurrently.

SUMMARY OF ARGUMENT

The formation of our nation and adoption of our

Constitution did not confer or allocate, prior to this Cen-

tury, exclusive legal rights in the Atlantic Continental

Shelf as between the States of the Union and the Federal

Government of the United States for at least two reasons:

first, our constitutional history did not assign any terri-

torial or sovereign rights to the Federal Government with-

out the consent of the States; and secondly, legal rights

(as compared to inherent sovereign rights) in the Shelf

came into existence only in the Twentieth Century. Neither

ancient grants nor successions from foreign Crowns limit

the contemporary assertion of either Federal or State

rights in the Shelf, as Shelf rights, unlike an unknown

resource content of a known territory or property which

was validly conveyed, are of a new type based upon the

inherent power of a sovereign to assert a jurisdiction be-

yond its territory and boundaries on the bases of both

the contiguity of seabed resources and the expected impact

of their exploration and exploitation upon its territory.

The policy basis underlying the submerged lands cases

which held that coastal States did not have rights in seabed

resources beyond their coastline has been reversed by Con-

| regis: Te

gress when it transferred all the submerged lands then in

controversy (from the coastline three miles seaward, and

within “boundaries” as defined in legislation) to exclusive

State jurisdiction for purposes of exploration and exploita-

tion of seabed resources. This Congressional action left

such cases without controlling or even persuasive force in

deciding the present controversy.

The Constitutional Powers of foreign relations, de-

fense, interstate commerce and conservation which have

been delegated \to the Federal Government cannot be shown

to require exclusive federal jurisdiction over the Shelf for

other er No “aspect of external sovereignty” is

presented by domestic allocation within the framework

of our Constitution and national laws of Federal and State

jurisdiction over the resources of the Shelf, as our nation

possesses these resources exclusively relative to the other

nations of the world. Because of their contiguity, and the

expected impact of their development, Shelf resources may

be the subject of rights and jurisdiction both of coastal

nations and coastal States. The principles of jurisdiction

applied in our national law operate alike for both States

and the Federal Government; and the capacity of the

States to exercise jurisdiction is limited only by the con-

stitutional delegation of powers to the Federal Government

‘and by the Federal exercise of competence within the

proper sphere of Federal authority. As neither Congress

nor the Executive has\taken all legal rights in the Shelf

since these arose in the wentieth Century, nor has claimed

nor by preemption exclusive jurisdiction over

Shelf resources, the coastal States may exercise a con-

current jurisdiction over the Shelf with the Federal Gov-

ernment.

—

Resolution of the political questions subsequent to

finding of concurrent Federal-State jurisdiction over the

Shelf is best left to Congress, the Executive and the

Coastal States rather than continue protracted litigation

of the unfolding issues in a multiplicity of cases.

THE FORMATION OF OUR NATION AND

ADOPTION OF OUR CONSTITUTION DID

NOT CONFER OR ALLOCATE EXCLUSIVE

LEGAL RIGHTS IN THE OUTER CONTI-

NENTAL SHELF (HEREINAFTER “SHELF”)

AS BETWEEN THE STATES OF THE UNION

(HEREINAFTER “STATES”) AND THE

FEDERAL GOVERNMENT OF THE UNITED

STATES.

A. Our Constitution and Constitutional History did

not confer or allocate exclusive legal rights in the Shelf

as between the States and the Federal Government.

(1) In describing the creation and flow of legal

territorial rights because of and during the Revolution

against England, this Court held, regarding acts which

took place in 1777:

“ . . There was uc territory within the United

States that was claimed in any other right than

that of some one of the confederated States ; there-

fore, there could be no acquisition of territory

made by the United States, distinct from or in-

dependent of, some one of the States. . .” Har-

court v. Gaillard, 12 Wheat. 523, 526 (1827).

(2) The Articles of Confederation specifically

negatived any claim by the national government to terri-

torial rights at the expense of the States, stating i in Article

IX:

. no State shall be deprived of territory for

the benefit of the United States.”

(3) The Constitution was also carefully drawn to

forfend the very type of unwarranted assertions of sover-

' eign power and property rights by the central government

‘ which are involved in this case. As to territorial and prop-

erty rights, the Constitution is clear, concluding, as it

does, with the statement in Article IV, Section 3, Clause 2:

“The Congress shall have Power to dispose of and

make all needful Rules and Regulations respect-

ing the Territory or other Property belonging to

the United States, and nothing in this Constitu-

tion shall be so construed as to Prejudice any

Claims of the United States, or of any particular

State.” (Esiphaate added).

(4) As to governmental powers (sovereign rights)

which may be applied to events occurring beyond or within

the territory of the States, the Bill of Rights in Amend-

ment X made it perfectly plain that:

“The powers not delegated to the United States

by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively,

or to the people.”

(5) There is no expressed rule or principle of the

Constitution purporting to grant, dispose of, or apportion

exclusive sovereign or property rights in subsequently-

acquired contiguous territory or areas as between the

adjacent State and the Federal Government. The law and

practice in instances of acquisition of contiguous areas is

further discussed below in Part V, B (2) of this brief.

(6) The basic claim of the Federal Government, that

the only rights which the States. may have in the Shelf are

those which may have been granted to them by the Federal

Government, is unfounded and unsound. Underlying its

entire position, and containing the real gist of its theory

of the case, is the claim stated in the Brief for the United

States in Support of Motion for Judgment (hereinafter

“U.S. Brief”) at page 20:

“C. EXCEPT AS GRANTED BY CONGRESS

SINCE STATEHOOD, THE COASTAL STATES

HAVE NO RIGHTS IN THE SUBMERGED

LANDS OR NATURAL RESOURCES SEA-

WARD OF THE COASTLINE.”

This is a spurious claim, without foundation in con-

stitutional law or policy. As seen above, our Constitution

does not grant, dispose of, or apportion exclusively sover-

eign or property rights as between the States and the

Federal Government without the consent of the States.

Therefore, any exclusive rights the Federal Government

has in the Shelf, under national law, must derive either

from: (a) the States of the Union (though not at the

time the Union was formed) ; or (b) the inherent rights

of states generally.

ee ee

(7) The groundless assumption that the -whole

bundle of rights in the Shelf must belong to one party to

the exclusion of the other (U.S. Brief, 7, “Question Pre-

sented,” and Answers of Various of the States Defend-

ants filed in 1969) also flies in the face of our federal

system. The simple and beautiful truth about our form of

government is that it is based upon a duality of rights

and powers. To say that all Shelf rights must necessarily

remain as a whole in the States or pass exclusively to the

central government upon the formation of the Union is to

deny the very soul and structure of that Union, as many

rights are neither exclusively Federal nor State.

(8) Based upon the foregoing, we submit that the

Constitution of the United States and the formation of the

Union did not confer, allocate, grant or dispose of exclusive

rights in the Shelf as between the States and the Federal

Government. The effects of the delegated powers of the

United States and the reserved sovereignty of the States

relative to present day allocation of Shelf rights are dis-

cussed more fully in Parts IV and V of this Brief.

B. Legal Rights in the Shelf came into existence

in the._Twentieth Century.

(1) Some of the confusion in the U.S. Brief stems

from its allegation that no Shelf rights existed at the time

of the Revolution and its inconsistent conclusion that such

rights passed to the United States upon the formation of

the Union. (U.S. Brief, 11-12.) We submit that the stated

conclusion is rendered false by the truth of the allegation.

(2) The Government makes the point that “exploitive

rights” in the Shelf did not exist at the time that our

Union was formed. (U.S. Brief, at 11.) In the sense that

the term “exploitive rights” is used as meaning “legal

rights to exploit,” we agree.

(3) Whether viewed as property rights or sovereign

rights, all rights in the Shelf (termed variously “rights,”

“sovereign rights” and “exploitive rights” in the U.S.

Brief) came into existence as legal rights only after two

things happened: (a) such rights were perceived with at-

tendant claims being made to them; and (b) the means

for assertion and exercise of such rights became available

by reason of the advance of civilization and technology.

As used in jurisprudence the term “right” connotes a well-

founded legal claim, or the capacity to assert a legally

enforceable claim. Bouvier’s Law Dictionary, Vol. 2 Right,

pp. 927-929 (1897). 77 C.J.S. Right, 392 (1952).

(4) In our national law, the coastal States began to

perceive and assert legal rights in the Shelf about 1921

with the California leasing statute. Other States subse-

quently made similar claims, asserting and bringing into

exercise claims sometimes said to have been derived from

their Constitutions.or our constitutional history. No Fed-

eral assertion of any claims to legal rights in the Shelf

was made until 1937, when the Secretary of the Interior,

Harold Ickes, began to have “doubts” as to whether the

Federal or State governments owned the submerged lands.

Legislative History — Submerged Lands Act, Prior Com-

mittee Reports, Appendix I, H. R. Rep. No. 1778 (88d

Cong., 1st Sess.; 1953 U.S. Code Cong. and Admin. News,

1415, 1417-1418, 1426-1427 (1953) (excerpt, pp. 1417-

1422, is reproduced in Appendix to this Brief). The tem-.

Bre 1 POEM i ONE SERN I EMT ENE TE FNM MANE LY LYE IT ROM NEAR MRM SS TUT RIT iy CTY Rit

poral relationship of these Federal and State claims is

not, however, dispositive of the sovereign or property rights

which may exist in the Shelf. Under national law, as dis-

cussed herein and below, it is our Constitution and laws

which are controlling both (a) as to the distribution of

sovereign powers within our nation, and (b) as to the

allocation of, and power of disposition over, property rights

as between the States and the Federal Government.

(5) The phrase “continental shelf’ was invented and

used in a geological and geographical sense in 1887, but its

emergence in a juridical context was precipitated by the

Truman Proclamation of 1945 (Presidential Proclamation

No. 2667, September 28, 1945, 59 Stat. 884 (hereinafter

“Truman Proclamation’) ). Gutteridge, The 1958 Geneva

Convention on the Continental Shelf, XXXV Brit. Yb.

Int'l. L. 102 (1959)

(6) The submerged portions of the continent existed

prior to the advent of civilization and law, although the

characteristics of these portions were not recognized until

recent decades. They became the subject of legal rights

only in the Twentieth Century. In the most recent authori-

tative judicial pronouncement on the subject, the Inter-

national Court of Justice put it this way:

“97, .. . The natural resources of the subsoil of

the sea in those parts which consist of continental

shelf are the very object of the legal regime es-

tablished subsequent to the Truman Proclama-

tion . . .”’ North Sea Continental Shelf Cases, —

_ (1969) I.C.J. 8, at 51. (Hereinafter “ICJ Opin-

ion.”’)

(7) Juridical development of legal rights in and to

the Shelf began in 1945, and those legal rights came into

being prospectively only, not retroactively. See Matson

Navigation Company v. United States (The Montebello) ,

141 F.Supp. 929 (Ct. Cl., 1956).

(8) Legal rights in the Shelf, therefore, could not

have been acquired by, or granted to, any entity until the

Twentieth Century. The inherent rights in the Shelf asso-

ciated with the sovereignty and sovereign powers of coastal

States and nations are discussed more fully below in Parts

IV and V of this Brief.

Il.

NEITHER ANCIENT GRANTS NOR TERRI-

TORIAL BOUNDARIES LIMIT EITHER

STATE OR FEDERAL LEGAL RIGHTS IN

THE SHELF.

A. Ancient grants from, and successions to, the

Crowns of England, Holland or Spain are not essential to

the resolution of this case and reference to them serves

only to obfuscate the real issues.

(1) It is axiomatic that a general conveyance of

real property or a cession of territory also transfers rights

to the minerals and other resources located therein. But

legal rights in the Shelf or jurisdiction over its resources

(which lie beyond the territory of States) are a new type

of property or sovereign rights not subject to the princi-

ples of implied conveyance or limited by express limitation

of conveyance. The asserted ancient grants and executory

—_ tas PDE ENE PLE LATO HIE REEL RS NNT, ERE EF

LN ETN AAS ELAR MR ON ES .

4 I”

—~

12 :

conveyances of rights in the offshore submerged lands may

be affirmatively controlling if a State is recognized as the

beneficiary of an effective grant, but their absence does

not limit either State or Federal legal rights in the Shelf.

(2) The Federal. Government proceeds at some

length to demonstrate that there were no legal or exploitive

rights in the English Crown and makes what it seems to

think is a telling point: that the Crown did not pass these

nonexistent rights on to Canada or Australia (or, by in-

ference, to the American Colonies) (U.S. Brief, 24-30). The

Government also undertakes to prove that no Shelf rights

existed in England and Canada until after 1876 or 1878

(U.S. Brief, 25). We agree, but point out that it was only

long after those dates that any such rights came into exist-

ence. (See Part I, B of this Brief.)

(3) How rights which did not exist and were com-

pletely unknown could have been passed on to anyone is left

unexplained. But the really exquisite nature of this series

of non-sequiturs becomes apparent only when they are

distilled and put together to form the Federal Govern-

ment’s thesis: Since exploitive rights were unknown and

did not exist in the Crown of England, and since the Crown

did not pass on to the Colonies those unknown and non-

existent rights, the Colonies passed such rights to the Fed-

eral Government of the United States at the time of for-

mation of the Union. The magical process by which an

unknown nothing was transformed into an unknown some-

thing, underwent a mythical passage to a central govern-

ment, and then remained unknown for more we: 150

years, is still secret.

(4) Rejecting these sophistries, we suggest that law

and plain common sense require the conclusion that neither

the States nor the Federal Government enjoyed any legal

or exploitive rights in the Shelf before, upon, or imme-

diately after the formation of the Union for one simple

reason: those rights came into existence more than a cen-

‘tury: later.

B. Modern boundaries and the delimitation of terri-

tory do not limit either State or Federal jurisdiction in

this case, for the legal rights in and jurisdiction over the

Shelf lie beyond the boundaries of all parties.

(1) The Truman Proclamation made no mention of

boundaries, but clearly was intended to apply beyond the

territorial sea of the United States, the limits of which are

commonly recognized as our nation’s most seaward terri-

torial boundary. The White House Press Release which

accompanied the Truman Proclamation spoke of a depth

of contour line of about 100 fathoms, which line lies in

most areas beyond the limits of the territorial sea. White-

man, Digest of International Law, Vol. 4, pp. 757-758

(Department of State Publication 7825, 1965) (hereinafter

“Whiteman Digest”). The concurrent Executive Order

(No. 9633; 10 F. R. 12805; 3 C.F.R. 487 (Supp., 1957) )

preserved the rights of the States and the Federal Govern-

ment in the Shelf outside as well as within the three-mile

limit with the following language:

“... Neither this Order nor the aforesaid proc-

lamation shall be deemed to affect the determina-

tion by legislation or judicial decree of any issues

between the United States and the several states,

a NOLS ORIEL ROR ERLE ER EME SRE ELE EL PR OY

relating to the ownership or control of the subsoil

and sea bed of the continental shelf within or

outside of the three-mile limit.” 1945 U.S. Code

Cong. Service, p. 1315 (1945). Whiteman Digest,

758-759.

Revocation of this Executive Order and establish-

ment of a naval petroleum reserve (solely for oil and gas

exploration and exploitation) by Executive Order No.

10426 (18 F.R. 405; 3 C.F.R. 924-925 (Supp., 1958)) did

not affect the legal situation of whatever rights the States

may have had in the Shelf. It clearly did not attempt to

exclude all rights of the States in the Shelf, as it established

a reserve “for oil and gas only,” and it was declared

“[s]ubject to valid existing rights.” Jd. § 1 (a) and (b).

(2) The geographic marine surface boundaries for

purposes of jurisdiction over navigation and other uses

of the watcr column, such as fishing, do not limit juris-

diction over the submerged portion of the continent. In

point of time, such boundaries were claimed and set long

before there was any knowledge of, much less claims to, the

use and development of the Shelf. Whiteman Digest, Ch.

IX, §1 (pp. 1-14) and §2 (pp. 14-137), Ch. XI, §1 (pp.

740-764). “By 1900, the three-mile or one-league limit

had been positively adopted or acknowledged as law by

twenty of the twenty-one states which claimed or acknowl-

edged a territorial sea at that time. The twenty states

were... and the United States.” Heinzen, The Three Mile

Limit: Preserving the Freedom of the Seas, 11 Stan. L.

Rev. 597, 632-634 (1959).

(3) In the first California, Louisiana and Texas

cases, the States argued that boundaries should control.

“The basis of California’s asserted ownership is that a

belt extending three English miles from low water mark

lies within the original boundaries of the state...” U.S.

v. California, 332 U.S. 19, at 23 (1947) (hereinafter “Cali-

fornia case”). See also, U. S. v. Louisiana, 339 U.S. 699,

705 (1950), and U. S. v. Texas, 339 U.S. 707, 711 (1950).

The holdings were that boundaries did not control. Cali-

fornia case at 31; U.S. v. Louisiana, 339 U.S. 699, 705;

U. S. v. Texas, 889 U.S. 707, 720; (U.S. Brief, 22-23).

(4) In submerged lands legislation the term “bound-

aries” has been relevant only in the Submerged Lands Act

of 1953 (67 Stat. 29, 43 U.S.C. §§ 1801-1315) (hereinafter

“SLA”’). Even there, however, the term “boundaries” was

used only to define the express quitclaim by the Federal

Government to ya proprietary interest within the ac-

cepted State “boundaries.” “Boundaries” as used therein

did not purport to determine any matters relating to the

seabed beyond such areas. To the contrary, except for the

quitclaim of, submerged lands under the U.S. territorial

sea, the SEA expressly preserved whatever rights the

United Sfates may have had in the Shelf (43 U.S.C. §1302)

(just as\did the Truman Proclamation, with its attendant

Executive Order, some eight years prior to the SLA).

(5) Approval by this Court of a 3-league, or 9-mile,

boundary for Texas and Florida in the Gulf of Mexico

subsequent to the SLA had the effect of according these

coastal States exclusive legal rights in the natural resources

of the Shelf beyond the boundaries of the United States.

U.S. v. Louisiana, 363 U.S. 1, 84 (1960) ; U.S. v. Florida, »

363 U.S. 121, 129 (1960). The language of the SLA con-

firming United States Shelf jurisdiction beyond bound-

aries was held further in U.S. v. Louisiana et al. 368 U.S.

LY PREM RELI. DLT EGE OL ABE LOOT 2 RE EE PEI TES RE TG

1, 83-85 to give exclusive jurisdiction to the United States,

a matter which this brief discusses below in Part VI.

(6) The Outer Continental Shelf Lands Act (67

Stat. 462, 43 U.S.C. $$1831-1843) (hereinafter “OCSLA”)

dealt with lands or rights entirely beyond the boundaries

of the States and the nation, that is, the area in question

in this case. But nothing in that Act purports to divest

States of the Union of any rights, although the States’

power to apply taxation laws to the Shelf was limited.

Congress merely exercised its undoubted authority to set

up its own rules for Federal leasing on the Shelf. The leg-

islative history of the OCSLA is clear. The Committee Re-

port states:

“Purpose of the Bill

“The purpose of H.R. 5134 is to amend the Sub-

merged Lands Act in order that the area in the

outer Continental Shelf beyond the boundaries of

the States may be leased and developed by the

Federal Government. At the present time the

Submerged Lands Act merely established that

the seabed and subsoil in the Outer Continental

Shelf beyond State boundaries appertained in

[sic] the United States and was | subject to its

jurisdiction and icin

“There are no provisions for the leasing and de-

velopment of the area by the Federal Government

nor are provisions made for the exchange of State

leases for Federal leases‘in the same area.

“This bill contains provisions to accomplish those

very objectives.” H.R. Rep. No. 413, 83rd Cong.,

Ist Sess. (1953); 1953 U.S. Code Cong. and

Admin. News, Vol. 2, pp. 2177-2178 (1953).

Indeed, the claim language in the OCSLA is unmistak-

ably, and, we believe, significantly, similar to the Truman

Proclamation (adding only the phrase “power of dispo-

sition” to cover and authorize the leasing program being

established in the Act). 43 U.S.C. $1832. Setting up a

leasing program in an area where the Federal Govern-

ment unquestienably has rights (though non-exclusive) is

an entirely different thing from an attempt 4o divest the

States of all Shelf rights. As the Court well knows, Con-

gress considered this whole matter for many years, and

suffered some vetoes, before the 1953 legislation was finally

drafted, passed and approved by the President. The volu-

minous Committee Reports (See, e.g. excerpt in Appendix

to this Brief), as well as the California (332 U.S. 19),

Louisiana (339 U.S. 699) and Texas (339 U.S. 707) cases,

are replete with discussions of boundaries. Had Congress

later wanted to base an attempted divestitude of the Shelf

rights of States on boundaries, it most certainly would

have said so. The feeble and contrived allegation of the

Federal Government on this point serves to emphasize the

validity of our position. The Government states (U.S.

Brief, 23-24) :

“So, also, although Congress did not purport

to foreclose greater claims, the underlying prem-

ise of the Submerged Lands Act — which in 1953

granted a three mile belt to the State bordering

on the Atlantic Ocean — is that the present de-

fendants theretofore held no rights in the bed

of the territorial sea and thereafter would hold

none farther seaward, where federal administra-

tion was provided for under the Outer Continen-

tal\Shelf Lands Act enacted in the same year

” (Emphasis added.)

This \allegation says that, although Congress did not

purport to foreclose the States’ claims on the Shelf, such

claims were automatically foreclosed’ by an underlying

premise of\the SLA.’ We suggest that such a conclusion

is patently unwarranted, and that boundaries simply have

no bearing on the matter of Shelf rights for this clear

reason: Shelf rights’ are generally beyond territorial

boundaries and Congress did not change this legal situa-

tion.

III. \

THE POLICY BASIS UNDERLYING THE

FIRST CALIFORNIA SUBMERGED LANDS

CASE HAS BEEN REVERSED BY CON-

GRESS, LEAVING IT WITHOUT CONTROL-

LING OR EVEN PERSUASIVE FORCE IN

DECIDING THE PRESENT CONTROVERSY.

(1) In the case of United States v. California there

were only two real issues on the merits, and they were

decided under the heading “third” in the Opinion (332

U.S. 19, at 29-89). The Court held:

(a) that California had not produced enough ref-

erences and evidence i prove: :

poses)

a SON) BB ann cet

‘,.. that the thirteen original colonies separately

acquired ownership to the three-mile belt or the '

soil under it, even if they did acquire elements of

the sovereignty of the English Crown by their

revolution against it.” (332 U.S. 19, at 31); and

(b) the commerce, defense and foreign relations

‘powers of the national government required:

. that the Federal Government rather than

the state has paramount rights in and power over

_ that belt [the three-mile territorial sea], an inci-

dent to which is full dominion over the resources

of the soil undér that water area, including oil.”

(332, U.S. 19, at 38-39; parenthetical matter

ee:

(2) Holding (a) is not controlling in this case oi

cause, firstly, it dealt with a matter of evidence and proof.

Review of the Whiteman Digest, Ch. IX, indicates that

most authorities on the territorial sea were subsequent to

the formation of our nation. Additionally, the fact that

California failed to prove that the 13 original States exer-

cised dominium over the territorial sea cannot be held

against the parties in this case, 10 of whom are original

States. Secondly, legal rights in the Shelf were not ac-

' quired by either the States or the Federal Government un-

til much later than the revolution against England.

(3) Holding (b) is clearly based on policy consid-

erations determined by the Court to exist at that time in

1947. Such a policy was also a clear basis for the 1950

Louisiana decision (839 U.S. 699, at 705) and the 1950

Texas decision (389 U.S. 707, 712). But the policies re-

_ lied on by the Court in 1947 and 1950 to allocate the sea-

bed from the coastline out to three miles from shore to the

Federal Government were reversed by action of the Con-

gress and the President in 1953 by enactment of the SLA.

See Appendix to this Brief. We are mindful of the pro-

vision of the SLA that it shall not be “deemed to affect in

any wise the rights of the United States...” (43 U.S.C.

$1302): on the Shelf (outside of the State and the United

States boundaries). It is clear that this language in the

SLA does not give anyone any rights in the Shelf and its

resources. What it does accomplish is a reversal of the

policy basis for the holdings in the California case and the

Louisiana (339 U.S. 699) and Texas cases (339 U.S. 707).

Without that policy basis, the reasoning in those cases

cannot be sustained unless there is some other compelling

reason why the long-recognized claims of States. must be

forfeit. But the Federal Government does not even allege

any other or new policy, basing its present claims squarely

on the previous cases (U.S. Brief, 22-24). Indeed, the Gov-

ernment (U.S. Brief, 22) itemizes the same policy bases

for its present claims as: “... defense, international re-

lations, and external sovereignty ...” “External sover-

eignty” presumably refers to foreign commerce, unless

' it is merely redundant to “international relations.”

_(4) Stripped of its policy rationale by Congress, the

California case today offers no impediment to a review of

the factors involved in determining the allocation of Shelf

rights. That case was decided in the aftermath of World

War II, only six years after an attack on Pearl Harbor,

_ and only five years after blackouts and hysteria on the

Pacific coast resulting from the fear of a Japanese am- ~

phibious assault. Memories of the plans of enemy con-

soll

er il

De hl

quest and control of natural resources in Asia, and of a

Nazi proximity to the oil reserves of the Middle East (El

Alamein) were fresh and potent. The “Cold War” was

just beginning and the United Nations was in a pre-

carious struggle for life. Criticism is not here intended.

To the contrary, we are urging that time and the histori-

cal perspective of nearly a quarter century reveal far-

reaching changes both within and outside our nation.

(5) Currently, the security fear is not of loss of

essential natural resources. Nowhere does the Government

allege any fear of an invasion frum the Shelf or a threat

of loss of Shelf resources to foreign nations. To the con-

trary, the official U.S. position as presented internation-

ally is to demand a “narrow” Shelf (stopping at the 200

meter isobath) with a dedication of the remainder of the

ocean floor to the benefit of international community in a

“trusteeship zone” and an international regime. Presi-

dential Statement, 116 Cong. Rec. X 87747-7748 (May |

25, 1970); and Draft United Nations Convention on the

International Sea-Bed Area (Working Paper Submitted

by the United States to the United Nations Committee on

the Peaceful Uses of the Sea-Bed and the Ocean Floor Be-

yond the Limits of National Jurisdiction), Arts. 1, 2, 3, 26

and 27, 25 U.N. GAOR, Supp. No. 21 (A/8021), pp. 130,

132-133, 138-139 (1970).

(6) The security, foreign relations and commerce

issues are examined more fully below in Part IV of this

Brief. The point being made here is that new policies

consistent with those laid down by Congress and the Execu-

tive and attuned to the present realities are not fore-

closed by the prior decisions of the Court, all of which

were based on the California case.

OS a LRA COI pCR REO TELAT

IV.

THE CONSTITUTIONAL POWERS. DELE-

GATED TO THE FEDERAL GOVERNMENT

BY THE STATES CANNOT BE SHOWN TO

REQUIRE EXCLUSIVE FEDERAL JURIS-

DICTION OVER THE SHELF.

THe exercise of exclusive Federal Powers by the

United States carries with it paramount rights limited to

those reasonably necessary to effectuate their specific

purposes. It does not establish exclusive rights generally

nor establish all rights for all purposes. The need must —

be evident or shown in each case to the Court.

A. The Foreign Relations Power does not require

exclusive Federal rights in and jurisdiction over the

Shelf for purposes other than Foreign Relations.

(1) The fact that the Shelf lies in general beyond

the limits of the territorial sea does not raise foreign

policy problems which*prohibit the exercise of some State

jurisdiction over the Shelf. The 1958 Geneva Convention

on the Continental Shelf (15 U.S.T. (Pt. 1) 471) (herein- ~

after “Shelf Convention”) recognizes the water column

above the Shelf as international waters (Art.-3) (White-

man Digest, 920). And the OCSLA specifically recognizes

the water column above the Shelf as international waters

(43 U.S.C. $1832 (b)). Both these international and na-

tional prescriptions, and the ocean law associated with

them, are binding upon the States in their exercise of any

jurisdiction which they may have over the Shelf. The De-

partment of State did not object to language in the Execu-

‘tive Order which accompanied the Truman Proclamation

and provided that the Order and the Proclamation did not

affect the determination of issues between the Federal

Government and the States. Whiteman Digest, 755-756.

(2) The United States has not based its territorial

sea or international boundary claims on Shelf considera-

tions. Quite to the contrary, it has consistently opposed

and protested the claims of other nations (particularly in

Latin America) to extensive territorial seas based on an

interpretation by those nations that such claims follow the

Truman Proclamation. Whiteman Digest, 793-814 and

874-882.

(3) No foreign affairs problems have been caused

by the recognition by the Court on the basis of the SLA

of a nine-mile boundary in the Gulf of Mexico for sub-

merged lands of Florida and Texas — six miles into or

beneath international waters. It was held by the Court

in those cases that the question of State and Federal juris-

diction over these areas of the Shelf was a matter of do-

_ Mestie concern. U.S. v. Louisiana et al., 363 U.S. 1, 64,

84; U.S. v. Florida, 363 U.S. 121, 129.

(4) International Law, codified in the Shelf Conven-

tion and confirmed in the ICJ Opinion, recognizes that the

Shelf rights of the coastal nation are exclusive as regards

any other nation, regardless whether the coastal state

asserts any claim. Shelf Convention, Art. 2. No other

nation has any interest. Thus, the allocation of such rights

internally within a nation cannot be the concern of any

other nation.

(5) The States presently exercise a jurisdiction to

prescribe laws in some cases for foreign ships in the terri-

torial sea, and in ports and other internal waters. Even

for admiralty questions, which are generally within fed-

eral jurisdiction, the States prescribe law for such matters

as leins, local regulations and torts. 2 Am.Jur. 2d Admi-

ralty §7, pp. 723-724 (1962). See also the discussion of

authority over internal waters, the territorial sea and

adjacent ocean areas in McDougal and Burke, The Pub-

lic Order of the Oceans, Chs. 2, 3 and 6 (1962). Thereis |

considerable commerce by foreign ships in these waters,

and this State jurisdiction does not harmfully impinge on

foreign relations or adversely affect foreign affairs or

security interests to the detriment of our nation. A for-

tiori, when the jurisdiction of the United States is ex-

clusive relative to the interests of the other nations of the

world, as it is on the Shelf, there can be no question of

any undesirable effects on foreign affairs by State exer-

cise of jurisdiction.

(6) There is no question of the authority of the

Executive to conclude international agreements regarding

the Shelf for any foreign relations purpose, which agree-

ments may determine the extent of jurisdiction (Federal

and State) over the Shelf and the manner in which such

jurisdiction may be exercised. In the case of Missouri v.

Holland, 252 U.S. 416 (1920) this Court upheld as against

the jurisdiction and police power of a State, a treaty and

pursuant legislation of Congress providing for reciprocal

protection of migratory birds which make seasonal flights

between Canada and the United States. If the United States

chooses to enter into an international agreement or treaty

defining or limiting Shelf rights there is simply no ques-

tion of the legal efficacy of this exercise of the foreign

relations power, both as to Federal and State jurisdiction

over and rights in the Shelf. The mere possibility of an

international agreement which might require a consequen-

tial limitation of the rights or powers of the States does

not, however, operate to limit or divest such rights or

powers.

(7) Finally, were a coastal State to undertake activi-

ties on the Shelf, or to exercise any jurisdiction over the

Shelf, in a manner adversely affecting the conduct of

foreign relations this Court has the power to declare such

activities or jurisdiction unconstitutional even absent any

specific prohibitory legislation by Congress or prescriptions

of the Executive. Zschernig v. Miller 389 U.S. 429 (1968).

(8) ‘In sum, the foreign relations power delegated to

the Federal Government by the States in our Constitution

is adequate for its purpose on the Shelf and at sea as well

as on land. It does not require exclusive Federal jurisdic-

tion over the Shelf any more than exclusive Federal juris-

diction over aliens and foreign enterprises or State prop-

erty on land. To the contrary, as United States legal rights

on the Shelf are exclusive relative to other nations the

question of Federal and State jurisdiction is purely one of

domestic concern and is regulated solely by our national

law. While it may be desirable in the future conduct of

United States foreign relations to make international

agreements limiting or regulating United States jurisdic-

tion over the Shelf, our existing Constitutional Law is

entirely adequate to make any such agreements binding

upon the States as well as the Federal Government. More-

over, if the States exercise any jurisdiction over the Shelf

which adversely affects the foreign relations of the United

States, the Legislative, Executive or Judicial Branches of

our Federal Government can curtail such an exercise of

jurisdiction. As the foreign relations power is adequate

and exclusively federal it cannot afford a basis for allocat-

ing legal rights on the Shelf to the Federal Government for

purposes other than foreign relations.

*B. The Defense and Commerce Powers do not re-

quire exclusive Federal rights in and jurisdiction over the |

Shelf.

(1) No instance can be found where the Defense

Power, assigned exclusively to the Federal Government in

our Constitution, is inadequate in the territory or property

of any State. The Defense Power of the Executive is gen-

eral and does not require exclusive ownership of the Shelf

or any other category of property to protect the security

interests of the United States. Nor does the Defense Power

operate to divest the States of other sovereign powers.

(2) The States regularly cooperate with the Federal

Executive on defense matters relative to territorial and

territorial sea areas under their jurisdiction, and there is

no reason to suppose that State cooperation in such matters

would be any less for any jurisdiction which they may

have over the Shelf. The only instance related to jurisdic-

tion over the resources of submerged lands of the Shelf

and: territorial sea in which the States might have stood

in opposition to the Federal Defense Power was precisely

one in which all interested Federal agencies, including the

Department of Defense, were met in cooperation by State

officials in the establishment of safety fairways in the

Gulf of Mexico. See Griffin, Accommodation of Conflicting

Uses of Ocean Space with Special Reference to Navigation

_—

Safety Lanes, in Proceedings of the Second Annual Con-

ference of the Law of the Sea Institute, at pp. 73, 79-81

(1968). sued

(3) In sum, the Defense Power assigned by our

Constitution exclusively to the Federal Government is

adequate for its purpose, and does not require exclusive

Federal jurisdiction for purposés other than defense for

its efficacy or implementation.

(4) The Commerce Power delegated to the Federal

Government in our Constitution, and conservation inter-

ests, do not require ownership either of territory or of a

class of property by the Federal Government for their

effectuation. To the contrary, the Power and associated

interests and powers are required solely to regulate the

use of property by others and to limit the exercise of State

and local jurisdiction within our Constitutional framework.

(5) That questions of interstate and foreign com-

merce may arise as a result of State jurisdiction over the

Shelf cannot be questioned. The Legislative, Executive and

Judicial Branches of the Federal Government may deal

with such questions, however, both by applying our Consti-

tutional and general laws and by prescribing new law

within their respective competences.

(6) Conservation of the resources of the Shelf

similarly does not present any novel or insoluble problem

in our Constitutional framework. The Federal Government

can always control or prevent the production of oil and gas

(or other resources) on the Shelf in the same way it does

on dry land. Conservation is not impaired in any way.

Declaration of specific powers for conservation and re-

stricted exploitation of oil and gas resources of the Shelf

by Executive Order (No. 10,426; 18 F.R. 405; 3 C.F.R.

924-925 (Supp., 1958) ) was expanded by Congress in the

OCSLA (48 U.S.C. $1841). There is simply no question of

needed reserves being dissipated, and the national interest

jeopardized, by irresponsible exploitation.

Vv.

THE COASTAL STATES HAVE SOME LEGAL

RIGHTS IN AND MAY EXERCISE JURISDIC-

TION OVER THE SHELF UNLESS THESE

RIGHTS AND POWERS HAVE BEEN CON-

STITUTIONALLY TAKEN BY THE FEDER-

AL GOVERNMENT.

A. The Coastal States Have Some Rights in the

Shelf.

(1) The coastal sovereign entity always had inherent

rights in the Shelf, but as seen above and reinforced herein

these inherent rights did not ripen into legal rights until

the Twentieth Century.

(2) The ICJ Opinion and the contemporary opinions

of scientists are alike in associating the Shelf with the

adjacent land. The ICJ opinion speaks of the origin and

nature of both inherent and legal Shelf rights:

“95. The institution of the continental shelf

has arisen out of the recognitién of a physical

fact; and’the link between this fact and the law,

without which that institution would never have

existed, remains an important element for the

application of its legal regime. The continental

shelf is, by definition, an area physically ex-

tending the territory of most coastal States into

a species of platform which has attracted the

attention first of geographers and hydrogra-

phers and then of jurists. The importance of the

geological aspect is emphasized by the care

which, at the beginning of its investigation, the

International Law Commission took to acquire ex-

act information as to its characteristics, as can

be seen in particular from the definitions to be

found on page 131 of Volume 1 of the Yearbook of

the International Law Commission for 1956. The

appurtenance of the shelf to the countries in

front of whose coastlines it lies, is therefore a

fact, and it can be useful to consider the geology

of that shelf...

“96. The doctrine of the continental shelf is a

recent instance of encroachment on maritime ex-

panses which, during the greater part of history,

appertained to no one. The contiguous zone and

the continental shelf are in this respect concepts

of the same kind. In both instances the principle

is applied that the land dominates the sea...

“97. ...the natural resources’of the subsoil of

the sea in those parts which consist of continen-

tal shelf are the very object of the legal regime

established subsequent to the Truman Proclama-

tion...” ICJ Opinion, at 51.

Scientists now know that the continents and the deep

ocean floor are different in kind. The continents are

primarily composed of granitic rock, rich in silica and

the alkalis (sometimes nicknamed “white rock’), while

the deep ocean floor is mainly basaltic rock, rich in heavy

“minerals (hence, “black rock”). The most fundamental

and remarkable physiographic feature of our planet is

the tremendous scarp at the interface of the continents

with the deep ocean floor. Simply put, the solid earth is

covered, on a world-wide basis, with a relatively thin layer

or crust of basaltic rock. The continents float on this

basaltic rock. The continents float on this basaltic layer

in a manner which has been likened to an iceberg in the

sea. In a study prepared at the request of the National

Council on Marine Resources and Engineering Develop-

ment and officially presented by the United States to a

United Nations Committee (Department of the Interior

Press Release, Aug. 14, 1969), Federal Government

scientists summed up the point this way:

“GEOLOGIC AND PHYSIOGRAPHIC PROV-

INCES AND THEIR BEARING ON POTEN-

TIAL SEABED MINERAL RESOURCES

“The solid earth’s surface consists of two great

physiographic divisions, the ocean basins, and

the continents that rise to mean heights of 4,300

to 5,800 meters above the ocean floor. The ocean

basins, of course, are filled with sea water — more

than filled, in fact, for the ocean extends over

the margins of the continental masses for dis-

tances ranging from a few to more than 1,300

km. The boundary between the continental masses

and the ocean basins thus lies beneath the sea,

generally at depths ranging from 2,000 to 4,000

meters.

“The physiographic contrast between the con-

tinents and the ocean basins reflects fundamental

geologic differences between them. The continental

crust is richer in silica and.the alkalis and poorer

in iron and magnesia than the oceanic crust.

Although the continental crust averages about

- 85 km. in thickness compared with about 5 km.

for the oceanic crust, its density is less (fig. 4).

The continental and oceanic masses are in flota-

‘tional equilibrium with the underlying mantle,

and the lighter continents rise above the ocean

basins, much as does an iceberg in the sea.

Ocean Continent > __

ics se on te ee

*". 5 Graniti¢ tayer’ * ,”

Oa ‘adhdaad

See

k-—35 Km

65 Km

Figure 4. Idealized cross section showing the

flotational equilibrium between oceanic and

continental crust. (Takeuchi and others, 1967).

“The igneous rocks of the continental crust

consist mainly of granite and related rocks rel-

atively rich in silica und the alkalis, although

some basalt and other rocks rich in iron and

magnesia are also present. In many areas these

granitic rocks intrude, or are overlain by, thick

accumulations of sediments, deposited in ancient

seas that spread over the continents, and in

marginal oceanic basins — sediments derived in

large part from the weathering and erosion of

adjacent land. Oil, gas, sulfur, saline minerals,

coal and other deposits occur in these sedimentary

basins. Oceanic crust, in contrast, is largely

composed of basalt and related rock; and, except

near the continental margin where erosional

debris from the land may be present, it is gener-

ally overlain by no more than a few hundred

meters of sediments.

* * *

“ |. Petroleum, coal, sulfur, salt, potash, phos-

phate rock, limestone, and many other minerals

have been concentrated by biologic and sedimen- ,

tary processes in sedimentary rocks...

“In spite of their smaller size compared to the

floor of the large ocean basins, the submerged

parts of the continents, the continental rises, and

the small ocean basins contain the greater part of

the potential subsea mineral resources, both in

terms of the variety of minerals that exist and

the value of those that are likely to be recovered

within the next few decades. Most important

among these minerals is petroleum, the bulk of

which likely occurs in the continental terraces and

rises and the small ocean basins. . .” (McKelvey,

V.E., and Wang, Frank F. H., World Subsea

Mineral Resources, pp. 5-7 (Department of the

Interior, U.S. Geological Survey, 1969).

__ ——— - 4

i ’ i

(3) ‘The essential harmony between the ICJ Opinion

and the present knowledge of the scientific community is

, apparent: The Shelf is a part of the land mass which is

. submerged temporarily in terms of geologic time. Legal

rights connected with it have only recently been claimed

or acknowledged. Whatever rights coastal entities had to

the Shelf in times past were inherent rights only, and not

legal rights, until acknowledged and clothed with the pro-

tection of law. And the legal rights established in the

attendant and appurtenant Shelf belong to the coastal

sovereign. ;

(4) The emptiness of the claim that all rights in the

Shelf must emanate from the central government in Wash-—

ington, D.C., is emphasized by the fact that the resources

~ in question (mainly petroleum and related minerals) oc-

cur in the sedimentary rock of the Shelf. These same sedi-

‘ments were eroded from the dry land of the continent.

before being deposited on the Shelf. Thus, the components

of the mineral deposits themselves actually “derived in

large part from the weathering and erosion of adjacent

land.” (McKelvey and Wang, supra, p. 5). The “adjacent

land” in this case is necessarily the coastal States.

. (5) In sum, the inherent rights in the Shelf were

inherent both as being at one time potential rights and

also as inhering in the coastal sovereign entity. Why, we

ask, must the legal rights maturing from the inherent

rights of coastal States be deemed to be Federal when the

rock itself came from areas which are now the States?

(6) The ICJ Opinion sums up the matter of inherent

Shelf rights clearly and, we believe, persuasively (at p. 22) :

“19. More important is . . . what the Court

entertains no doubt is the most fundamental of

all the rules of law relating to the continental

shelf, enshrined in Article 2 of the 1958 Geneva

‘Convention, though quite independent of it, —

namely that the rights of the coastal State in re-

spect of the area of continental shelf that con-

stitutes a.natural prolongation of its land

territory into and under the sea exist ipso facto

and ab initio, by virtue of its sovereignty over

the land, and as an extension of it in an exercise

of sovereign rights for the purpose of exploring

the seabed and exploiting its natural resources.

In short, there is an inherent right. In order to

exercise it, no special legal process has to be

gone through, nor have_any special legal acts to

be performed. Its existence can be declared (and

many States have done this) but does not need to

be constituted. Furthermore, the right does not

depend on its being exercised .. . ” (Emphasis

' added.)

And (at P. $1):

“43. More fundamental than the notion of

proximity appears to be the principle —con-

stantly relied upon by all the Parties —of the

natural prolongation or continuation of the land

territory. or domain, or land sovereignty of the

coastal State, into and under the high seas, via

the bed of its territorial sea which is under the

full sovereignty of that State.‘ There are various

ways of formulating this principle, but the under-

lying idea, namely of an extension of something

a e

already possessed, is the same, and it is this idea

of extension which is, in the Court’s opinion, de-

terminant... ” ’

(7) Recognition that the ICJ Opinion was dealing

with nation-states on the international level does not im-

pair the applicability of these principles to coastal states

generally, including the States. As seen above, it is abun-

dantly clear that the Shelf is an extension from the land

domain of the coastal States as well as that of the United

States. The very rock which contains the sought-afte.

minerals originated by erosion from the areas of the ‘coastal

States. Thus, the “natural prolongation” could hardly be

more natural as regards the coastal States.

(8) From the ICJ Opinion, as well as from com-

pelling logic, it is clear that the coastal] sovereign entity,

by whatever name or designation, always had inherent

rights to the submerged portion of the continent. But

these rights were not perceived or claimed until the

Twentieth Century, and did not begin to ripen into legal

rights until the specific claim of the 1945 Truman Proc-

lamation (with its attendant disclaimer of any disposition

of rights of the States vis-a-vis the Federal Government).

(9) In this connection, it is most. revealing to look

at the declaration of the Executive Branch regarding the

formulation of law for the Shelf, which is contained in the

official State, Department Whiteman Digest under the

heading “History of the Truman Proclamation” :

“ ... This Nation’s claim to the natural re-

sources was strengthened by the earlier action

of some of the States in leasing, and consequently

bringing about the actual use and occupancy of

the Continental Shelf .. . ” Report from the

Committee on the Judiciary, Mar. 27, 1953, to

accompany H.R. 4198, Submerged Lands Act,

H.R. Rep. No. 215, 83d Cong., Ist Sess., p. 7.

(Emphasis added.) Whiteman Digest, 759.

(10) The emergence of the Shelf in international

law cannot be construed, even remotely, to deprive the

States of their inherent or legal rights in the Shelf. The

argument of the U.S. Brief may be misleading when it

asserts that the Truman Proclamation operated “[d]Jo-

mestically” (U.S. Brief, p. 13). That Proclamation oper-

ated to claim rights for the United States internationally,

while the accompanying Executive Order (No. 9633; 10

F.R. 12305; 3 C.F.R. 437 (Supp., 1957) ) and White House

Press Release (Whiteman Digest, 757-758 and U.S. Brief,

18) make it clear that domestically no effect on the States

was intended.

(11) The conclusion, therefore, is that unless all

sovereign and property rights in the Shelf have been posi-

tively taken from the States since 1945, the coastal States,

consistently with the developing international and national

law of the Shelf, may claim, assert and exercise some

jurisdiction on the Shelf. ,

B. The coastal States may exercise jurisdiction over

Shelf resources.

(1) It is axiomatic that 2 State may exercise a juris-

diction to protect a right.

FE TSOP TS

(2) The law and practice in instances of acquisition

of contiguous areas indicates that, rather than a band of

new federal jurisdiction being created surrounding our

States, the territory of the States of the United States

is established or expanded. In the instance of the Chamizal,

for example, in which an area was added to the United

States by the migration of the Rio Grande River between

the United States and Mexico, it was accepted that the

area belonged to Texas and was subject to its jurisdiction.

See ‘Remarks of the President, 50 Dept. of State Bull., pp.

' 49-50 (Jan. 18, 1964). The Shelf resources similarly are

the subject of rights and jurisdiction arising subsequent

to the formation of the States and the United States. It

cannot be shown that our Constitution and laws require

different types of subsequently acquired property to be the

subject of different relative Federal and State rights.

(3) As regards sovereign powers, the reserved

sovereignty and associated general police powers of the

States may extend to the Shelf even though it lies beyond

the boundaries of the States and of the United States,

unless and until their application is excluded by Congress.

This Court has upheld the applicability of State police

powers to federally licensed activities on the navigable

waters of the United States, in Huron Portland Cement

Co. v. Detroit, 362 U.S. 440. And application of State

forced pooling orders to federally granted oil and gas

leases on lands in the federal public domain is a proper

exercise of State jurisdiction if not excluded by Congress.

Texas Oil and Gas Corp. v. Phillips Petroleum Co., 277

F.Supp. 366 (1967), aff'd. 406 F.2d 1303 (1969). Con-

gress has not excluded the exercise of State jurisdiction

over the Shelf (see Part VI of this brief below). And the

legislatures of the coastal States have not ceded or relin-

core ae PEER OEE PERLE LCE IEE AA LE LEE LEE ALES. EERIE

quished all claims to jurisdiction. Consequently, the coastal

States may exercise police powers over the Shelf for a num-

ber of purposes. Such purposes may include enforcement

of pooling’ policies, conservation laws, safety, and other

laws associated with police powers.

(4) The jurisdiction exercised by coastal States over

the Shelf is blso consistent with the principles of compe-

tence to prescribe with respect to events having an effect

within territory. See Restatement II, Foreign Relations

Law of the United States, §§ 18-21 (1965). It is also con-

sistent with the principles of the exercise of jurisdiction

over the Continental Shelf. Jd., § 23. And with the juris-

dictional conflict of laws rules. See Restatement II, Con-

flict of Laws, Proposed Official Draft, Part I, §§ 10, 24,

56 (1967).

(5) The principles of concurrent Federal and State

rights in and jurisdiction over the Shelf were not squarely

presented to or considered by the Court in prior cases, and

the present defendant States are not bound by causes or

decrees to which they were not parties.

(6) The Federal Government has, however, claimed

fee simple ownership in the Shelf in earlier cases. Now for

reasons indicated herein it is claiming today “something

less than fee simple.” Neither Congress nor the Court has

ever supported the fee simple claim of the Federal Gov-

ernment. The decisions in the California case (at p. 36)

and the Louisiana (339 U.S. 699, 704) and Texas (339

U.S. 707, 719) cases spoke of “paramount rights in” and

“power over” the Shelf, when defining the interest of the

Federal Government. The OCSLA was notably silent about

this fee simple claim, reverting to the language of the Tru-

EERE IEE FST ON

man Proclamation, i.e., “appertained”, “jurisiction”, and

“control”. 43 U.S.C. § 1332. The phrase “power of dispo-

sition” in the OCSLA referred only to the leasing program

therein established.

(7) In the face of this restraint by the other two

Branches of government, the Executive began retreating

from its early, exaggerated, claim to fee simple ownership

and in later cases is claiming progressively less. For exam-

ple, in the 1960 Louisiana case, the complaint alleged that

the government was “entitled to exclusive possession of,

and full dominion and power over” the Shelf. (363 U.S.

1,5.) In U.S. v. Ray, in 1970 — ten years later, the Fifth

Circuit stated, at the specific instance of the Executive,

that the rights of the United States in the Shelf were

“something less than fee simple.” (423 F.2d. 16, 18-19

(1970) ) (The language of the paragraph crossing pages

19-20 was amended to include the last three sentences by

slip opinion dated Apr. 10, 1970.) In the instant case, the

Complaint, p. 11, claims for the United States only “sov-

ereign rights .... (on the Shelf) ... . for the purposes of

exploring the area and exploiting its natural resources...”

(8) The concurrent jurisdiction of the Federal Gov-

ernment and the States is nothing startling or revolu-

tionary. It already exists and is recognized for numerous

situations, including events on the Shelf, even though

State jurisdiction is not necessarily co-equal or co-exten-

sive with Federal jurisdiction in such cases. State law

has been adopted as surrogate Federal law for the Shelf.

Rodrique v. Aetna Casualty Co., 395 U.S. 352, 357. Exam-

ples of concurrent jurisdiction include crimes on federal

property or against federal officers} the jurisdiction of

state and federal agencies (including the Coast Guard)

———— LRTI LN LE I EL OND, LI LESSIG MOGI LE NIELS, GEE ELEMENT

within territorial and inland navigable waters; injury on,

or damage to, offshore drilling rigs beyond the three or -

nine mile limits; and oil pollution beyond the three or nine -

mile territorial limits( with respect to collection of dam- -

ages by third parties). This Court has upheld application : :

of State law (a tax on the severance of timber) on federal -

reserve lands where private companies had contracts wi =

the Federal Government, because Congress had not as- _

sumed exclusive legislative jurisdiction over the lands.

Wilson v. Cook, 327 U.S. 474, 487 (1945). Conformed to in

Cook v. Wilson, 198 S.W. 2d. 818 (1946).

(9) In sum, state laws and police powers extend

over the Shelf and over the extraction of its resources,

even though the Shelf is beyond state boundaries, unless

and until Congress determines to exclude their applica-

tion.

VI.

NEITHER CONGRESS NOR THE EXECU-

TIVE HAS EXCLUDED ALL COASTAL

STATE RIGHTS IN AND JURISDICTION

OVER THE SHELF AND ITS RESOURCES.

(1) Assuming that the Federal Government has a

species of plenary power which enables it to take all Shelf

rights away from the States and to exclude any exercise

of State jurisdiction over the Shelf, there has been no at-

tempt to do so. It is no answer to assert, as does the U. S.

Brief, that the failure of Congress to make the attempt

somehow resulted in its accomplishment (U.S. Brief

23-24).

(2) Acceptance of a theory of a secret and a silent

taking of Shelf rights by Congress after its fourteen years

of deliberation on submerged land matters, would be to

impute to Congress base motives and an intent to violate

our Constitution. Any interpretation of the OCSLA as

such a taking would render it unconstitutional as a dep-

rivation of property without just compensation —a di-

rect violation of our Constitution, Amendment V. Public

entities, including the states, are entitled to compensation

for property taken from them by the Federal Government.

State of Washington v. United States, 214 F.2d 33 (1954),

Cert. Den., 348 US 862; Sarpey County, Nebraska v.

United States, 386 F.2d 453, 181 Ct. Cl. 666 (1967). Fur-

ther, it is a basic rule of statutory construction that the

Court will not opt for an interpretation which would

render a statute unconstitutional if there is-any fair read-

ing of it which would keep it within the framework of

our Constitution. United States v. Cohn Grocery Co., 225

U.S. 81 (1920) ; Sutherland, Statutory Construction, Vol.

2, §§ 2401, 4509, pp. 174-175, 326-327 (3rd ed., 1943).

(8) Congress was well aware of the legal and con-

stitutional problems involved in the submerged lands con-

troversy. Further, it was sympathetic to the position of

the States and was dismayed and troubled by the impli-

cations of the decision in the California submerged lands

ease. There is no indication of any intent to deprive the

states of all their rights in the Shelf. In fact, the legisla-

tive history of both the SLA and the OCSLA discloses that

Congress was very careful to refrain from making any

federal claims which would deprive the constitutional or

legal rights of anyone, including the States. The portion of

the legislative history of the SLA printed as an Appendix

of this Brief is indicative of this intent of Congress. See

Appendix to this Brief.

i 2 AD EEL PEE OL LE AERA TIONED LIOLOE BEN EL IE MEE ELE IG EE IS

mm.

(4) The OCSLA leasing program is a constitutional

exercise of power by Congress, but it does not exclude all

exercise of rights and jurisdiction by the States over the

Shelf. The establishment of a leasing program, and of a

single leasing entity for the Shelf resources was within

the powers of Congress. The necessity for certainty of

rights so that large capital investments could be made

and the need to fix a federal severance charge or royalty

for the extraction of Shelf resources were properly within

the powers exercised by Congress. Unless the intent of

Congress was to exclude the exercise of all State rights and

jurisdiction over the Shelf, the federal leasing program

would not of itself preclude exercise by the States of a

jurisdiction over the Shelf and its resources for purposes

of conservation, safety, the accommodation of conflicting

uses where there may be economic impairment, the en-

forcement of pooling orders, and the exaction of taxes or

other payments for the severance or production of re-

surces from the Shelf. The federal leasing program estab-

lished in OCSLA was simply a confirmation and legislative

authorization of the federal leasing which had been going

on under the 1945 Executive Order for eight years.

(5) The legislative intent of Congress is revealed

clearly in the history of the OCSLA. The intent to con-

firm and give validity to the Truman Proclamation, and

to vest the power to take or dispose of the natural re-

sources of the Shelf’ beyond States’ boundaries in the Sec-

retary of the Interior, are noted. The language of the

first substantive section in OCSLA, 43 U.S.C. § 1832, de-

claring the policy of the United States “that the subsoil

and the seabed of the outer Continental Shelf appertain

to the United States and are subject to its jurisdiction,

control, and power of disposition as provided in this sub-

chapter,” was stated in the committee report on H.R. 4198

(in which Sept. 8(a) contained substantially the same

language) to assert “as against the other nations of the

world the claim of the United States to the natural re-

sources in the Continental Shelf.” 1953 US Code Con-

gressional and Administrative News, Vol. 2, pp. 1390,

1391 (1953).

(6) Further indication of the intent of Congress may

be seen from the language of the entire Sect. 8(a) in H.R.

4198 as it passed the House of Representatives in 1953:

“TITLE III

“OUTER CONTINENTAL SHELF OUTSIDE _

STATE BOUNDARIES

“Sec. 8. JURISDICTION OVER OUTER

CONTINENTAL SHELF.— (a) It is hereby

deviared to be the policy of the United States that

the natural resources of the subsoil and seabed of

the outer continental shelf appertain to the

United States and are subject to its jurisdiction,

control, and power of disposition as provided in

this Act. Federal laws now in effect or hereafter

adopted shall apply to the entire area of the

outer continental shelf. The Secretary is hereby

empowered and authorized to administer the pro-

visions of this title, and to adopt rules and regula-

tions not inconsistent with Federal laws to apply

to the area.

“Except to the extent that they are inconsistent

with applicable Federal laws now in effect or

hereafter enacted, or such regulations as the

Secretary may adopt, the laws and police powers

of each coastal State which so provides shall be

applicable to that portion of the adjacent outer

continental shelf which would be within the area

of the State if its boundaries were extended sea-

ward to the outer margin of the outer continental

shelf, and the Secretary shall determine and pub-

lish lines defining each such area of State juris-

diction: Provided, That State taxation laws

within such area shall be limited to severance or

production taxes and may be levied only by those

States which apply and administer their conser-

vation laws and other State governmental func-

tions in said area: Provided further, That the

rate of such severance or production tax shall not

be in excess of the rate of said tax within State

boundaries.

“This Act shall be construed in such manner

that the character as high seas of the waters

above the outer continental shelf and the right

to their free and unimpeded navigation and navi-

gational servitude shall not be affected.

“(b) Oil and gas deposits in the outer continen-

tal shelf shall be subject to control and disposal

only in accordance with the provisions of this

Act and no rights in or claims to such deposits,

whether based upon applications filed or other

action taken heretofore or hereafter, shall be

- recognized except in accordance with the pro-

visions of this Act.” (Emphasis added.)

—_— COPE he FY LORE COE IO EE EIEN ILE IVANELL EIA FLD LAELIA

The emphasized portion of the second paragraph of

Sec. 8(a) comprises 43 U.S.C. Sec. §1388(a) (2) with

modifications, and the enacted version of OCSLA went on

in the same Section to exclude the application of State

taxation laws on the Shelf. This further provided that ap-

plicable State laws will be administered and enforced by

the officers and courts of the United States. Thus, except

for provision for a single, federal leasing entity, and the

exclusion of the application of State taxation laws on the

Shelf, Congress did not exclude the application of other

State laws to the exploration and exploitation of the re-

sources of the Shelf. ;

(7) - Viewed in proper perspective, then, and giving

Congress the benefit of constitutional awareness and mo-

tives, the OCSLA was merely a confirmation of what Con-

gress believed was the previously existing situation on the

Shelf, with the establishment of a single, federal leasing

program, and the exclusion of the application of State

taxation laws on the Shelf. But, as shown above, the pre-

viously existing situation on the Shelf included the sov-

ereign and property rights of the States, subject, of course:

1) to the supremacy of federal powers within their proper

Sphere, and, 2) to the capacity to exercise jurisdiction

over the Shelf as over other United States public lands

for a variety of purposes other than taxation.

(8) The only relevant official actions of the Execu-

tive were contained in the Executive Order of the President

which accompanied the Truman Proclamation. Exec. Order

No. 9633, 3 C.F.R. 437 (Supp., 1957) (which specifically

preserved the rights and jurisdiction of the States in the

Shelf) and the Executive Order establishing a naval pe-

troleum reserve, which was declared expressly subject to

existing rights and for oil and gas only. Exec. Order No.

10,426, 3 C.F.R. 924 (Supp., 1958).

(9) The conclusions thus far are clear: since Shelf

rights crystalized into legal rights and the capacity to

exercise jurisdiction around 1945, and these rights and

powers have not been foreclosed by necessary construction

of the powers delegated to the Federal Government by our

Constitution, and have not positively taken away from

the States by Congress or the Executive since that time,

they still subsist.

Vic.

THE COURT SHOULD DECLARE THE CON-

CURRENT FEDERAL-STATE RIGHTS IN

AND JURISDICTION OVER THE RE-

SOURCES OF THE SHELF AND LEAVE THE

CONTINUING POLITICAL QUESTIONS TO

BE RESOLVED BY THE EXECUTIVE AND

LEGISLATIVE BRANCHES AND THE

COASTAL STATES.

A. The courts are not the appropriate arena for

decisions on the political aspects of submerged lands

matters.

(1) The burden of this Court from submerged lands

litigation during the quarter century since the California

case has been enormous. Yet there has been no real reso-

lution of the basic controversies. Only portions of the Cali-

fornia, Louisiana and Texas coasts have been delimited by

judicial decree. A vast amount of work remains to be done

by the Court, and by Masters it appoints, on baseline ques-

tions alone if the previously established patterns of de-

cision are continued. Myriad other controversies will

probably be presented if present trends continue. And the

issue of Federal and State jurisdiction over the Shelf (be-

yond the three-mile territorial sea) is only now for the

first time being squarely presented to the Court.

(2) Claims of coastal States for an involvement in

the decisions concerning the Shelf and its resources can

be expected to increase. Demands to apply State laws for

purposes of conservation, environmental protection and

safety have been heard where the States are specially .in-

terested in ocean activities which affect nearby Shelf re-

sources or the integrity of-the marine environment, or

which damage their shores or injure their citizens. In

recognition of these demands Congress in the Water Qual-

ity Improvement Act of 1970, Sec. 11(0) (2), assigned cer-

tain. additional authority to the States concerning. oil

pollution from ships, onshore and offshore facilities: =

“Nothing in this section shall be construed as

preempting any State or political subdivision

thereof from imposing any requirement or lia-

bility with respect to the discharge of oil into any

waters within such State.” (Emphasis added.)

Pub. L. No. 91-224, Title I (Apr. 3, 1970); 84

Stat. 91; 33 U.S.C.A. 1161 (0) (2) (1970).

Congress had earlier stated:

. - [I]t is declared to be the policy of Congress

to recognize, preserve, and protect the primary

responsibilities and rights of the States in pre-

-.. ” —_———e

oj — —— -

venting and controlling water pollution, to sup-

port and aid technical research relating to the

prevention and control of water pollution, and

to provide Federal technical services and finan-

cial aid to State and interstate agencies and to

municipalities in connection with the prevention

and control of water pollution.” Fed. Water Pol-

lution Control Act, Sec. 1.(b) ; 33 U.S.C.A. 1151

~ (1970).

(8) Congressional establishment of a federal leas-

_ ing program and exclusion of State taxing power over

Shelf resources do not amount to an exhaustion of the field

of legal problems which may arise relative to rights in and

jurisdiction over the resources of the Shelf and associated

activities. The public interest at the time Congress enacted

the OCSLA demanded some certainty in Shelf exploration

and exploitation. Congress responded with an interim go-

lution which, as can be seen from the claims of all the <

parties to this case, is incomplete. Many other decisions

will be necessary to establish in detail and with finality

the equitable division of both benefits and burdens asso-

ciated with rights in and jurisdiction over Shelf resources. —

One question as yet unanswered is whether the States may

obtain any revenues from the Shelf resources other than

by “taxation” which is precluded by the OCSLA. 43 U.S.C.

§ 1332(a) (2). May a State-imposed severance charge be

considered not inconsistent with, but supplemental to, the

federal law and thus required under the terms of the

OCSLA to be implemented by federal officers?

(4) The demand of the Federal Government in this

case for a declaration of “exclusive rights” in the resources

ria etl

of the Atlantic Continental Shelf as against the defendant

States (Complaint, p. 10) is essentially a political demand

which leaves obscure many justiciable issues such as these:

May a coastal State (such a Maine) require and issue a

prospecting permit for Shelf exploration pursuant to its

conservation, safety and mineral exploitation powers? (See

Wilson v. Cook, 327 U.S. 474, and Texas Oil and Gas Corp.

v. Phillips Petroleum; 277 F.Supp. 366 (1967) which

authorized the application of State taxation laws and

pooling orders relative to the extraction of resources from

federal lands, and Part V. B. of this Brief, above). May

a coastal State exercise some jurisdiction over Shelf 4

resources, and the exploration and exploitation activities |

associated with them under its general police powers?

(5) The enormous gaps in present law concerning

the Shelf are best filled by suitable legislation of the

Federal Government and the States, and by Federal-State

Compacts. Rather than seek a general declaration of

exclusivity by this Court, with resultant prolongation and

continued refinement of litigation on a myriad of izsues,

many of them political, the Executive Branch could seek

action by Congress within the sphere of Federal Powers

and concurrent action with the coastal States on matters

where this is appropriate. Surely, obsolete and bankrupt

technical arguments~ about King George and his Realm

cannot be allowed to control the destiny of our States and

the United States on matters so involved with present

national interest as the development and conservation of

Shelf resources. (Compare the “first hurdle” argument

advanced in the U.S. Brief, 24-30.) Although we have

inherited English common law for the protection of private

rights and interests, the powers of the English Crown and

*” arr

————

the extent of its “Realm” should not be allowed to determine

today relative Federal-State rights and interests in the

Shelf established under our federal system.

(6) Rejecting anachronistic fetters such as a pre-

sumed disposition of Shelf rights and jurisdiction by the

conception of territory two centuries ago, or by our Consti-

tution (which does not dispose of territorial rights of the

States without their consent, and which delegates less than

all sovereign powers to the Federal Government), or by

the assumption in the California case that the seabed area

ther in issue (within the three-mile territorial sea) was

beyond boundaries and therefore should be beyond State

jurisdiction, the path is opened to a recognition of con-

current jurisdiction whereby both the States and the

Federal Government may operate within their proper

Constitutional spheres of jurisdiction on contemporary

Shelf legal problems.

(7) As the development and conservation of Shelf

resources and the protection of the marine environment

continue to present ever more immense, and intricate

issues, the good will and cooperation of the States, rather

than their exclusion from participation, best serves the

resolution of these issues., Instead of denying the con-

siderable contribution which can be made by the States,

their cooperation within the framework of our constitu-

tional system is established by a finding of concurrency.

The political issues and many of the details of Federal and

State rights in and jurisdiction over the Shelf can be

resolved by the other Branches of government and the

coastal States, with the Judicial Branch considering only

the more defined issues of a justiciable character.

B. Declaration of the concurrent Federal-State juris-

diction over the Shelf best serves the public interest.

(1) The public interest of the United States in-

cludes the interests of all citizens and is best served by

the concerted action of all levels of government including

those closest to, and most affected by, the problems with

which government deals. Advances in science and tech-

nology make the shared interest and concurrent jurisdic-

tion of the States and the Federal Government more vital

and important, as the opportunities and vulnerability of

each level of government increase both with expanding

- exploration and exploitation of Shelf resources and as a

result of actions taken by other government levels.

(2) The Executive recognizes the importance of the

roles of coastal States in ocean and coastal problems. In

the Annual Report of the President to the Congress on

Marine Resources and Engineering Development, dated

April, 1970, the President of the United States concluded

his “President’s Transmittal Message to Congress” with

the paragraph:

“The Federal government will continue to provide

leadership in the nation’s marine science program.

But it is also important that private industry,

State and local governments, academic, scientific

and other institutions, increase their own involve-

ment in this important field. The public and

private sectors of our society must work closely

together if we are to meet the great challenges

which are presented to us by the oceans of our

planet.

“/s/ Richard Nixon

The White House, April 1970.”

oS RATE RT EE RSET

This same Annual Report of the President is replete with

calls for greater State involvement. For example, referring

to the February 10, 1970, Environmental Message of the

President to the Corigress it states (p. 27) :

«... Important sections of the message ‘were

devoted to water pollution. The Government has

proposed legislation to encourage States to assume

a greater responsibility for planning, regulating

and managing their coastal areas... .”

And (at page 28) :

this year the President concluded his Letter of Transmittal _

“Our impact on the marine environment must be

regulated so that the coastal areas and the deep

ocean can be preserved, developed and used for

our continuing benefit. This can be accomplished

through comprehensive management, beneficial

use, protection and development of the coastal

areas employing Federal, State and local govern-

ments and public and private interests... .”

In his annual report on marine affairs to Congress

as follows:

“We have embarked on a strong marine science

program for the 1970’s. In the year ahead the

Federal Government will build upon these ac-

complishments. And we will look to all sectors of

the Nation’s marine science community — State

and local governments, industry and the univer-

sities — to contribute tothe fullest to the United

ea |

= SO SREP SE AIEEE EE NETL ATA NOE VREE FEEDS NRO RI

States’ efforts to make better use of the oceans

and to provide world leadership on the major

ocean issues before the community of nations.

“/s/ Richard Nixon

The White. House, April 7, 1971”

(3) Further dramatic evidence of recognition of the in-

terests of States in Shelf exploration and exploitation came

when the Chief Executive recently requested Congress to

cancel certain federally granted oil leases specifically be-

cause they Jay seaward of a State sanctuary. In the words

of the President to Congress:

“In 1955 the State of California took steps to

protect a particularly beautiful area of its coast-

line by creating a State Sanctuary extending six-

teen miles along the Santa Barbara Channel and

closing it to all petroleum exploration. About a

decade later, however, the federal government

issued leases for petroleum exploration immedi-

ately seaward from the State Sanctuary. Oil plat-

forms were soon constructed and petroleum drill-

ing began. In January, 1969, a blowout in the

_ Channel resulted in widespread oil pollution of the

Sanctuary.

_ “The twenty federal leases seaward from the

Sanctuary which were granted by the previous

Administration should be cancelled. Legislation

being submitted today would terminate these

leases and create a Marine Sanctuary... .

* °, ©

“This proposal for Santa Barbara illustrates

our strong commitment to use offshore lands in

a balanced and responsible manner. Jt recognizes

the earlier decision made by the people of Cali-

fornia to set aside a part of their coastline as a

sanctuary, and it extends the protected area

across the Channel to Santa Cruz Island... .”

(Emphasis added.) 6 Pres. Docs.-752-753 (Jun.

15, 1970) ; 116 Cong. Rec., No. 96, p. $8823

(Jun. 11, 1970).

Congress did not approve the President’s request, and

the Department of the Interior is considering resumption

of oil drilling in the Sanita Barbara Channel under more

stringent regulations. New York Times, Sep. 3, 1971, at

54, col. 1. One may conjecture that had the more severe

requirements of California been in effect for drilling on

the Shelf off its shores in 1969 the Santa Barbara spill

might have been avoided. See e.g. Nanda and Stiles, Off-

shore Oil Spills: An Evaluation of Recent United States

Responses, 7 San Diego L. Rev. 519, 528 (1970). Or that

had both the California decision to establish a sanctuary,

and the State drilling regulations prescribed specifically

for its geologic situation, been considered the spill might

have been avoided. It is certain, however, that the long

term public interest of our nation is best served not by

political interaction of the President and the Congress

but by regular participation of the States in making. law’

for the Shelf, both as to regulation of development activ-

ities, the conservation of resources, and the preservation

of the marine environment.

(4) It needs little reflection to realize that the land

bases and shore installations associated with offshore. re-

source development are a primary concern of the coastal

~ States. These exploration and exploitation activities involve

;

cnt et Cs —

eee re eS ee

ae FFE Ne TR eal

an integrated and continuous flow of persons and things

both outward from land into the ocean and inward from

the sea to the shore, from dry land to Shelf and from Shelf

to dry land. The process does not stop at any artificial

“boundary” line, to begin again beyond or inside such an

artificial line. Men, materials, supplies, ships, barges, tend-

ers, pipelines, electrical power and communications cables,

and drilling rigs themselves are all a part of this continuous

process of circular flow between the shore and the Shelf.

(5) Not only is the impact of Shelf activities and

development greatest on the adjacent coastal State, that

State invariably has strong grounds for jurisdiction on the

basis of its territorial competence over men and materials,

on the basis of citizenship (as it is in the main its residents

who do the work on the Shelf), and often on the basis of

jurisdiction over the ships and other vehicles and equip-

ment using its ports and frequently possessing its State

character through registration. And the resources extracted

from the Shelf frequently are processed in, sold in, and

used in the adjacent coastal State. Denying that State a

‘role in decision-making for activities on the Shelf which

affect it may limit only its bases for jurisdiction, not its

interest and concern for the entire process of resource

extraction and utilization.

(6) Further, the rapid progress in development of

fixed offshore platforms and underwater habitates affixed

to the Shelf, where human beings can live for extended

periods of time, is reported in numerous stories in the

public press as well as in scholarly journals and raises a

whole new set of factors which calls for State involvement.

Will the inhabitants on our Shelf be residents, hence

citizens, of the adjacent coastal State? Do they qualify as

electors? Must they pay State ad valorem taxes, State in-

come taxes and other State taxes? Do their children qualify

to attend State public schools? Are these children and their

parents “residents” so as to take advantage of the tuition

differential in State universities? Can such persons stand

for election to State office?

(7) In sum, there is ample scope for the action and

cooperation of all branches of government at both the Fed-

eral and State levels relative to thé exploration and ex-

ploitation of Shelf resources. Appropriate governmental

action and cooperation are fostered best by candid declara-

tion in this case that there exists concurrent Federal and

State jurisdiction over the Shelf and that the best course

of action is concerted cooperative action on the many

specific issues which are evoked.

(8) Declaration of concurrent Federal-State rights

in and jurisdiction over the Shelf by this Court will not

displace or impair the Pecntinne interest and powers of

the Federal Government within the areas of its delegated

soveréign powers; will not destroy the federal leasing pro-

gram established by nse 06 in the OCSLA; and will not

hinder the possibilities of Federal-State accommodation of

interests on the myriad problems and controversies which

will arise over the activities on and development of re-

sources of the Shelf. Rather, declaration of concurrent

rights and jurisdiction can be expected to promote Federal-

State cooperation and lead to resolution of those problems

in the Executive and Legislative arenas. Such arenas are

most suitable for the elaboration of decisions on baselines

and the accommodation of conflicting cleims on conserva-

tion, safety and other matters which are within the inter-

ests of the sovereigns concerned.

(9) As Justice Frankfurter stated in his concurring

opinion in the Florida case (363 U.S. 121, at 182 (1960) ):

“But in these matters we are dealing with great

acts of State, not with fine writing in an insur-

ance policy. . .”

Further “great acts of State,” blended with enlight-

ened and sympathetic statesmanship, will be the real source

of resolution of the interests of all parties. Bickering over

legalistic and technical points of language to resolve major

issues with polictical overtones does not fulfill this require-

ment. -

CONCLUSION :

For the reasons stated, we urge the Court to declare

that rights in and jurisdiction over exploration and ex-

ploitation of the resources of the Shelf underlying the

Atlantic Ocean beyond three miles from the coastline do

not belong exclusively either to the Plaintiff or to the

defendant States, and that concurrent Federal and State

rights and jurisdiction exist for the Shelf. The Court can

of course retain jurisdiction to rehear the case if the

political issues are not set to rest.

Respectfully submitted.

illard D. Dover

Counsel

Return address:

Box 8061

Coral Gables, Florida 33124

App. 1

APPENDIX

LEGISLATIVE HISTORY—SUBMERGED LANDS ACT

PRIOR COMMITTEE REPORTS, Appendix I,

House Report: No. 1778,

1953 U.S. Code Cong. and Admin. News, p. 1415, 1417-1422

(Footnotes omitted.)

lil. HISTORY OF LEGISLATION

One hundred and sixty years of unchallenged ownership

by the States

f Throughout our Nation’s history the States have been

in possession of and exercising all the rights and attri-

butes of ownership in the lands and resources beneath

the navigable waters within their boundaries During a

' period of more than 150 years of Americanj risprudence

the Supreme Court, in the words of Mr. Justice Black,

had—

“used language strong enough to indicate that the Court

then believed that the States also owned soils under all

navigable waters within their territorial jurisdiction,

whether inland or not.”

That same belief was expressed in scores of Supreme

Court opinions and in hundreds of lower Federal courts’

and State courts’ opinions. Similar beliefs were expressed

_* in rulings by Attorneys General of the United States, the

Department of the Interior, the War Department, and

- App. 2

the Navy Department. Lawyers, legal-publicists, and those

holding under State authority accepted this principle as

the well-settled law of the land.

As late as 1988, the then Secretary of the Interior,

Harold L. Ickes, in refusing to grant a Federal oil lease

on lands under the Pacific Ocean within the boundaries

of California, recognized :—

“Title to the soil under the ocean within the 3-mile

limit is in the State of California, and the land may not

be appropriate except by authority of the State.”

Claims of States first challenged by Federal officials in

1937 |

It was not until a few applicants for Federal oil leases

and their attorneys continued to insist that the United

States owned the soil under navigable waters, that, in the

words of Mr. Ickes, “doubt” arose in his mind as to which

Government owned the submerged lands. The “doubt” was

first publicly expressed in the Nye resolution introduced

in the Seventy-fifth Congress in 1938, and was subse-

quently expressed in the Hobbs and O’Connor resolutions

and the Nye and Walsh resolutions introduced in the

Seventy-sixth Congress in 1939, all of which failed of

enactment. Had the Congress followed the recommenda-

tions of the Departments of Interior, Justice, and Navy,

enacting any one of the resolutions, it would have at-

| mpted to appropriate for the United States, without

compensation to the States, the 3-mile marginal belt as a

naval petroleum reserve, and the Attorney General would

have been authorized to establish through judicial pro-

ceedings the Government’s title. .

App. 3

The theory advanced in 1938 and 1939 by the same

Federal departments which now oppose H.R. 5992 was

to the effect that the United States had no right to ap-

propriate the natural resources within the submerged

coastal lands unless the Congress, as the policy-making

branch of the Government, asserted what was contended

to be a dormant right. They spoke of the right as being

“novel” and one never before asserted by the United

States under the Constitution, and as being a right which

the States had been asserting and enjoying, and would

continue to assert and enjoy unless and until the Congress

changed the policy of the Federal Government. Congress,

however, did not change the long-existing and recognized

policy. Sa

Congress in 1946 recognized States’ claims

As a result of continuing threats of Secretary of the -

Interior Ickes to grant Federal leases on portions of the

submerged coastal lands, resolutions were introduced in

1945 in the Seventy-ninth Congress, quieting title to these

lands in the States. After extensive hearings, these reso-

lutions were passed in 1946 as House Joint Resolution 225.

However, the reaffirmation of the well-established policy

was voided through a veto by President Truman. The

House failed to override the veto.

While the Congress was considering House Joint Res-

olution 225, the Federal officials, being dissatisfied with

the continued refusal of Congress to appropriate-property

long claimed by the States, instituted on May 29, 1945, a

suit against the Pacific Western Oil Corp., a lessee of the

State of California to recover part of the submerged lands

claimed by California and its lessee.

App. 4

After House Joint Resolution 225 passed the House by

a large vote, and while it was pending in the Senate, the

suit against Pacific Western Oil Co. was voluntarily dis-

missed by Attorney General Clark, and an original action

was brought by him in the Supreme Court against the

State of California, wherein he alleged that the United

States “is the owner in fee simple of, or possessed of para-

mount rights in and power over” the submerged lands

within 3 miles of ‘the California coast. These two suits

were instituted and the latter one against California was

prosecuted after the Congress had refused in 1938 and

again in 1989 requests of the Attorney General and other

Federal officials for permission to institute a suit for that

purpose.

The House, in failing to override the veto of House

Joint Resolution 225 was no doubt influenced, as the

President had been, by the pending litigation.

Decision of Supreme Court denying California ownership

On June 23, 1947, the Supreme Court rendered its

opinion in the case of United States v. California, 332 U.S.

19, 67 S.Ct. 1658, and on October 27, 1947, a decree was

entered which reads, in part, as follows:

“1. The United States of America is now, and has

been at all times pertinent hereto, possessed of paramount

rights in, and full dominion and power over, the lands,

minerals, and other things underlying the Pacific Ocean

lying seaward of the ordinary low-water mark on the

coast of California, and outside of the inland waters, ex-

tending seaward three nautical miles and bounded on the

App. 5

north and south, respectively, by the northern and south-

ern boundaries of the State of California. The State of

California has no title thereto or property interest there-

in.”

In the Court’s majority opinion, Mr. Justice Black

said:

“The crucial question on the merits is not merely who

owns the bare legal title to the lands under the marginal

sea. The United States here asserts rights in two capaci-

ties transcending those of a mere property owner.”

He then proceeded to define those two capacities as

that of national defense and of conducting foreign rela-

tions.

Mr. Justice Black, in the majority opinion, stated

further:

“As previously stated this Court has followed and re-

asserted the basic doctrine of the Pollard case many times.

And in doing so it has used language strong enough to

indicate that the Court then believed that States not only

owned tidelands and soil under navigable inland waters,

but also owned soils under all navigable waters within

their territorial jurisdiction, whether inland or not.”

Thus the Court by its decision not only established

the law differently from what eminent jurists, lawyers,

and public officials for more than a century had believed

it to be, but also differently from what the Supreme

Court apparently had believed it to be..

Rese OA ED TENA RE RRO ru REAM ETRE Bi FA PURE TE TRE REI IMIR EN DRE 2 De YSERA BES

App. 6

This committee, having heard the testimony of many

able and distinguished State attorneys general, of rep-

resentatives of the American Bar Association and State

bar associations, and of other able and distinguished ju-

rists and lawyers, is of the opinion that no decision of the

Supreme Court in many years has caused such dissatis-

faction, confusion, and protest as has the California case.

We have heard it described in such terms as “novel,”

“strange,” “extraordinary and unusual,” “creating an

estate never before heard of,” “a reversal of what all

competent people believed the law to be,” “creating a new

property interest,” “a threat to our constitutional system

of dual sovereignty,” “a step toward the nationalization

of our natural resources,” “causing pandemonium,” etc.

Power of Congress to reestablish long-accepted policy of

State ownership

re committee recognizes that it is within the prov-

ince of the Supreme Court to define the law as the Court

believes it to be at the time of its opinion. However, the

Supreme Court does not pass upon the wisdom of the law.

That is exclusively within the congressional area of na-

tional power. Congress has the power to change the law,

just as the Supreme Court has the power to change its

interpretation of the law by overruling pronouncements

in its former opinions which have been accepted as the

law of the land. Therefore, in full acceptance of what the

Supreme Court has now found the law to be, Congress

may nevertheless enact such legislation as in its wisdom

it deems advisable to solve the problems arising out of

the decision.

App. 7

Indeed, the power of the Congress to establish the law

for the future as it was formerly believed to be, was, in

effect, recognized by the Court in the California case for”.

it held in connection with the lands in question that the

power of Congress under article IV, section 8, clause 2

of the Constitution to en of‘ territory or other prop-

erty of the United States was without limitation; and

that it would not be assumed that—

“Congress, which had constitutional control over Govern-

ment property, would execute its powers in such way as

to bring about injustices to States, their subdivisions, or

persons acting pursuant to their permission.”

’ Many witnesses testified that they construed the

opinion as an invitation! or recommendation to the Con-

gress to consider the legislative question as to whether

in the public interest the States should continue in pos-

session of, and exercise State control of, the submerged

lands within their boundaries, or the Federal Government

should take from the States these lands and hereafter

exercise all control over them.

IV. SUPREME COURT DECISION MAKES

LEGISLATION NECESSARY

When House Joint Resolution 225 was passed by the

Congress, there existed only a threat to the long-established

and settled policy of State ownership of these lands. Now,

as a result of the reversal of this policy by the Supreme

Court’s opinion in the California case, there exists, in the

words of Attorney General Clark, “ a variety of unusually

complex problems which must be resolved.”

ARON ENE

App. 8

The Committee deems it imperative that Congress

take action at the earliest possible date to clarify the end-

less confusion and multitude of problems resulting from

the California decision, and thereby bring to a speedy

termination this whole controversy. Otherwise inequities,

injustices, vexatious and interminable litigation, and the

retardment of the much-needed, development ef the re-

sources in these lands will inevitably result.

Issue of title is confused

While the Supreme Court decreed that California was

not the owner of the 3-mile marginal belt, it failed ex-

pressly to decree that the United States was the owner.

Furthermore, although requested by the Attorney Gen-

eral, and others appearing amici curiae, the Court re-

fused to hold that the United States was the “owner in

fee simple” or. had “paramount rights of proprietorship”

in such 3-mile belt.

“Fee simple” and “proprietorship” are words we

monly used in law to denote ownership, while the words

“paramount rights in and full dominion over” employed

by the Court are foreign to the law of real property.

Attorney General Clark expressing the view that

paramount rights and full dominion signified a title even

higher than a fee simple testified:

“They said to us in effect, go ahead and get the oil.

That is what the effect of the opinion is. What more could

the Supreme Court have held? If it held that we had fee

simple title, something might come up some day on this

App. 9

particular land. This is a novel decision. This land is under

water. It is in the 3-mile belt * * * So they did not want to

be bound by any fee simple proposition.

“So they could have said fee simple title, they could

have said any of the descriptive terms that we use with

reference to titles, but they might have found themselves

in difficulty later on when someone else might have

claimed that all you have said here is that the United

States had fee simple title.”

' Mr. Justice Frankfurter, in his dissenting opinion,

had difficulty in determining the meaning and legal sig-

nificance of the words used by Mr. Justice Black in the

majority opinion, stating that:

“The Court, however, grants the prayer but does not

do so by finding that the United States has proprietary

interests in the area. To be sure it denies such proprietary

rights in California.

“Of course the United States has “paramunt rights”

in the sea belt of California—the rights that are implied

by the power to regulate interstate and foreign com-

merce, the power of condemnation, the treaty-making

power, the war power. We have not now before us the va-

lidity of the exercise of any of these paramount rights.

Rights of ownership are here asserted—and rights of

ownership are something else. Ownership implies acquisi-

tion in the various ways in which land is acquired—by

conquest, by discovery and claim, by cession, by prescrip-

tion, by purchase, by condemnation. When and how did

the United States acquire this land?

App. 10

“The fact that these oil deposits in the open sea may

be vital to the national security, and important elements

in the conduct of our foreign affairs, is no more relevant

than is the existence of uranium deposits) wherever they

may be, in determining questions of trespass to the land

of which they form a part.”

| ™

Mr. Justice Reed oe in his dissent:

“This ownership in California would jsut interfere in

any way with the needs or rights of the (United States in

war or peace. The power of the United Btates is plenary

over these undersea lands precisely as|it is over every

river, farm, mine, and factory of the Nation.”

Many witnesses were of the opinion that the construc-

tion of paramount rights as including fee ownership

would, if carried to its logical conclusion, destroy the basic

legal distinction between governmental powers under the

Constitution on the one hand, and State or private owner-

ship of real property on the. other, because the “para-

mount powers” of the United States do not depend upon

whether the point at which they may need to be exercised

is above or below low-water mark or on one side or the

other of a line dividing a bay from the coastal waters,

Many witnesses expressed the opinion that the title

was left suspended in mid-air, leaving the property own-

erless, contrary to the basic concept of our common law

that legal title to every piece of property must exist in

someone; others expressed the view that the Supreme

Court held, in effect, that Congress, as the policy-making

branch of the Federal Government, had the power, in the

first instance, to determine who shall be the owner of the

lands.

App..11

The theory that title-to the 3-mile belt was in “the

family of nations,” expressed by Congressman Hobbs, of

Alabama, was also adhered to by representatives of the

Navy Department in 1938 and 1939. With respect to in-

land waters, Congressman Hobbs agreed that.the para-

mount rights of the Federal Government, as defined by

the Supreme Court-in U. S. v. California, 332 U.S. 19, 67

S.Ct. 1658, might likewise be exercised for the purposes

of national defense and international negotiations.

Mr. Justice Black, in speaking for the majority of the

Court in the California case, said:

“The very oil about which the State and Nation here

contend might well become the subject of international

dispute and settlement.”

If the Court in making the statement had reference

to the military power of a foreign nation to dispute the

rights of the States to take oil under submerged lands

within their boundaries, then the same statement could

correctly be made about oil under uplands, providing, of

course, the foreign nation possessed a military force strong

enough to compel a settlement by the United States. How-

ever, if the statement was made because the Congress had

never:legislatively asserted on behalf of the United States

or the States title to the submerged lands within their

boundaries, then we think that is all the more reason why

the Congress should now remove all doubt about the title

by ratifying and confirming the titles long asserted by the

various States, subject always, of course, to the paramount

powers of the Federal Government under the Constitution,

which titles have never been disputed by any foreign nation.

App. 12

The committee is unable to determine whether or not

the Supreme Court held that the United States has actual

title in and to the submerged coastal lands adjacent to

California, but it is obvious that Congress has the power

to legislate in any event, for, as the Court said, the Federal

Government has — i

“the paramount right and power to determine in the first

instance when, how, and by what agencies, foreign or

domestic, the oil and other resources of the soil of the

marginal sea, known or hereafter discovered, may be eéx-

ploited.” ‘ate

On the other hand, if the Federal Government does

have a fee simple title to these lands and even something

greater and paramount to title as contended by the At- |

torney General of the United States, then the Congress,

under the authority of article IV, section 3, clause 2, of

the Constitution, has unlimited control over such lands and

may dispose of them in such manner as it deems in the

public interest. The committee is, therefore, of the opinion.

that S.. 1988, if enacted, will establish, confirm, and vest

in the littoral States, which have since the formation of

our Union claimed title'to the marginal belt, such title and

rights as the Federal Government has, subject to the

reservations eontained therein.

CERTIFICATE OF SERVICE:

_ We certify that in compliance with Supreme Court

Rule 33 we have this day served a copy of the foregoing

Motion and Brief upon the Plaintiff and Defendants in’

this case by mailing a copy certified air mail, with postage

prepaid, to each of the following:

HonoraB_e Erwin N. Griswoip

Solicitor General of the United States

Department of Justice

Washington, D.C. 20530

_ HonoraBie James S. Erwin

Attorney General of Maine

Aunt Rakes G. Fuller, ea vas

Special Assistant Attorney General

State House

Augusta, Maine 04330

HonoraB_e Warren B. RupMan

Attotney General of New Hampshire

Att’n.: David'H. Sauter, Esquire

Assistant Attorney General

State House Annex

Concord, New Hampshire 03301

HonoraB_e Rosert H. Quinn,

Attorney General of Massac

Att’n.: Kevin P. Curry, Esquire

Assistant Attorney General

State House

Boston, Massachusetts 02133

HonoraB_e Hersert F. DeSimone

Attorney General of Rhode Island

Att’n.': W. Slater Allen, Jr., Esquire

Assistant Attorney General

' Providence County Court House

250 Benefit Street

Providence, Rhode Island 02903

HonoraB_e Louis J. LErKowitz ,

Attorney General of New York

Att’n.: Julius L. Sachman, Esquire

Assistant Attorney General

State Capitol

Albany, New York 12225

(Certificate of Service Continued on Next Page)

CERTIFICATE OF SERVICE (cont.)

HonoraBie Georce F. Kuc.er, Jr.

Attorney General of New Jersey

Att’n.: Elias Abelson, Esquire

Assistant Attorney General

State House Annex

Trenton, New Jersey 08625

Honoraste W. Larrp Sraswer, Jr.

‘ Attorney General of Deleware

Att’n.: nt Vienebee E. Campbell, Esquire

Assistant Attorney General

‘Public Building ~

Wilmington, ~ eli 19801

HonoraB_e Francis B. Burcu

‘ Atto General of Maryland

Att’n.: Henry R. Lord, Esquire

Assistant Attorney General

1200 One Charles Center

_' Baltimore, Maryland 21201

prac nanyy Sooner gar MILLER

torney of Virginia

Att’n.: Gerald L. Baliles, Esquire

‘ Assistant Atto General

Supreme Court Buildi

Richmond, Virginia 23219

yy mag RoBeRT Morcan

ttorney General of North Carolina

Awe n.: Jean A. Benoy, Esquire

Assistant Attorney G

Office of the Attorney General

P.O. Box 629

Raleigh, North Carolina 27602

Honoraste Daniev R. McLeop

Attorney General o South Carolina

Att’n.: Edward B. er, Esquire

Assistant Attor General

Hampton State ce Building

P. 0. Box 11537

Columbia, South Carolina 29211

ee: cca pe aor a

rney General o, rgia

Att’n.: Alfred L. Evans, Jr., Esquire

Assistant A General

132 State Judicial Building

Atlanta, Georgia 30334

(Certificate of Service Continued on Next Page)

{

CERTIFICATE OF SERVICE (cont.)

Hugh B. Cox, Esquire, and /

Brice M. Clagett, Esquire /

Covington a Burli

888 Sixteenth Street, N.W.

Washington, D.C. 26006

Dated: September 17, 1971.

| Ey ae UMorrnot

Lp —

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.