# United States v. Louisiana (363 U.S. 1)/Concurrence-dissent Black

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Frankfurter
* Concurrence/Dissent Black
* Dissenting Opinion Douglas
United States Supreme Court
363 U.S. 1
UNITED STATES, v. LOUISIANA, et al.
No. 10, Original. Argued: October 12-15, 1959. --- Decided: May 31, 1960.
Mr. Justice BLACK, concurring in part and dissenting in part.
I concur in the Court's judgment that Texas owns the belt of submerged lands extending three marine leagues from that State's coastline into the Gulf of Mexico (including oil and other resources), but dissent from denial of like claims by Louisiana, Mississippi and Alabama.
The claims of all these States depend on our interpretation and application of the Submerged Lands Act passed in 1953. Two bills previously passed by Congress, substantially the same as the 1953 Act, were vetoed by the President. After the first veto we refused to hold that California, Texas and Louisiana owned or had ever owned legal title to the submerged lands adjacent to their coasts. We held that the United States, not the States, had paramount rights in and power over such lands and their products, including oil. Congress accepted our holdings as declaring the then-existing law that these States had never owned the offshore lands-but believed that all coastal States were equitably entitled to keep all the submerged lands they had long treated as their own, without regard to technical legal ownership or boundaries. Accordingly, Congress exercised its power by passing the Submerged Lands Act in an attempt to restore the 'rights and powers of the States and those holding under (them) * * * as they existed prior to the decision of the Supreme Court of the United States in the California case.'
To accomplish this purpose the Act first provides for an outright grant to all the coastal States of a boundary three geographical miles from their coastlines. The Gulf States, however, were not satisfied with three miles but claimed that special circumstances entitled them to three leagues (about 10 1/2 miles) or more. They urged, among other things, that claims of the Gulf States and their predecessors in title had always been more expansive than claims of coastal States in other parts of the country; that when admitted to the Union their constitutions contained definitions which, properly interpreted, described boundaries extending three to six leagues seaward; that the Gulf States had not only claimed these more expansive boundaries, but had always exercised possessory and ownership rights over these marginal lands and their products at will without regard to any three-mile limitations; and that historically the United States had never questioned any of their claims until disputes arose regarding oil leases during the late 1930's. Moved by these arguments, strongly supported by evidence and concessions, Congress did not limit its grant to the Gulf States to three miles of submerged lands, but granted a belt extending all the way to each State's 'boundaries * * * as they existed at the time such State became a member of the Union * * * but in no event * * * more than * * * three marine leagues into the Gulf of Mexico. * * *' 43 U.S.C. § 1301(b), 43 U.S.C.A. § 1301(b). We have upheld the power of Congress to convey these marginal lands to the States. State of Alabama v. State of Texas, 347 U.S. 272, 74 S.Ct. 481, 98 L.Ed. 689.
The statute neither defines the kind of 'boundary' which is to measure Congress' grants to these States, nor particularizes the criteria for deciding it. We may agree with the Government that the term 'boundary' was used here in its usual sense to mean the limit of territory, which, in the case of a coastal boundary, would mean the outer limit of the territorial sea. But this does not get us very far in determining the location of these States' boundaries. For a number of reasons I cannot accept the Government's contention that each State must show a 'legal' or 'legally accepted' boundary as of the date it became a member of the Union. I cannot see how we can be expected retroactively to reconstruct a technically defined legal boundary, extending out into the lands under the Gulf, if the States never technically owned any of these lands. In United States v. State of California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889, and the cases which followed it, this Court held that the States of California, Texas and Louisiana did not own or have title to the offshore lands they claimed. If we were now to hold that these States must prove technical title as of the early 1800's in order to satisfy the Submerged Lands Act and that they have succeeded in doing so, we would in effect be overruling our prior cases, cases expressly accepted by Congress as declaring the law when the 1953 Act was passed. I cannot believe that Congress intended us to try to use again the same 'legal' test of ownership we had applied in holding that the States did not own any part of their marginal lands, particularly since Congress passed the 1953 Act to allow the States' rights to be determined under established equitable, not strictly legal, principles. The opinion of Mr. Justice DOUGLAS forcefully points out the difficulty, if not the impossibility, of finding that any of these States ever had a technical legal boundary out in the ocean. Even if a technical determination of boundaries were intended by Congress, rather than attempt that impossible task, I would prefer to return the Act to Congress for a more precise expression of its will. Cf. United States v. Alcea Band of Tillamooks, 329 U.S. 40, 54, 67 S.Ct. 167, 174, 91 L.Ed. 29 (concurring opinion); Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 354-358, 65 S.Ct. 690, 700-702, 89 L.Ed. 985 (concurring opinion).
Moreover, the Submerged Lands Act prescribes no standards for determining a strictly 'legal' boundary according to the conveyancer's art. There are, of course, no markers out in the Gulf of Mexico to show where the boundaries were when the States were admitted. Since some were admitted anywhere from 140 to 150 years ago there are no living witnesses to testify where their boundaries were at that time. But despite these difficulties, it is our duty to give effect to the congressional act as best we can. It is therefore my view that since we cannot look to legalistic tests of title, we must look to the claims, understandings, expectations and uses of the States throughout their history. This is because of the congressional expressions, stated time and time again that the Act's purpose was to restore to the States what Congress deemed to have been their historical rights and powers. Nor can I accept the Government's argument that these States' interests in the marginal seas must be determined in accord with the national policy of foreign relations. Everything in the very extended congressional hearings and reports refutes any such idea. Instead, these sources indicate that Congress passed the Act to apply broad principles of equity-not as we see it but as Congress saw it. In determining the boundaries of these States, we must, I think, recognize and follow the same principles if we are to effectuate the congressional purpose that produced this Act. That is what I would do. A few references to the legislative background will illustrate the guides Congress intended we should apply in interpreting its Act.
Senator Ellender of Louisiana invoked the equitable sense of Congress. Senator Holland of Florida, the author of the bill, urged Congress to 'look into the equities and the moral considerations that are involved. * * *' The presiding officer of the Senate Committee, who conducted the hearings and reported the bill, told the Congress that 'justice, equity, and the best interests of the Nation will be served by the enactment of this legislation.' The Senate Committee Report on an earlier bill, printed and adopted as a part of the Report on the 1953 Act, declared that 'The Congress, in the exercise of its policy powers, is not and should not be confined to the same technical rules that bind the courts in their determination of legal rights of litigants. * * * The committee believes that, as a matter of policy in this instance, the same equitable principles and high standards that apply between individuals, should be applied by Congress as between the National Government and the sovereign states.' The very last paragraph of the report on the bill referred to it as 'an act of simple justice to each of the 48 States in that it reestablishes in them as a matter of law that possession and control of the lands beneath navigable waters inside their boundaries which have existed in fact since the beginning of our Nation. It is not a gift; it is a restitution.'
Congress has thus repeatedly emphasized its desire to have the States' rights in these submerged lands determined not under 'technical rules' but, as the Senate Committee said, in accordance with 'equitable principles and high standards' of justice. To point out specifically what it meant, that Committee referred to three similar cases of this Court. One, which is illustrative, was State of Indiana v. State of Kentucky, 136 U.S. 479, 10 S.Ct. 1051, 34 L.Ed. 329. That case involved a boundary dispute between Indiana and Kentucky. The crucial question was the determination in 1890 of the location of the Kentucky boundary when Kentucky became a State in 1792. That same kind of backward-looking determination of boundaries is involved here with reference to the Gulf States. In the Indiana-Kentucky case, as here, there were no satisfactory markers, and testimony of living witnesses was deemed to be of little value. There was much evidence in the Indiana-Kentucky case, however, that Kentucky had exercised authority over the disputed territory since it first became a State and that Indiana had never challenged the boundary or the authority of Kentucky. Emphasizing the great value of that evidence this Court said: 'This long acquiescence in the exercise by Kentucky of dominion and jurisdiction over the island is more potential than the recollection of all the witnesses produced on either side. * * * It is a principle of public law universally recognized, that long acquiescence in the possession of territory, and in the exercise of dominion and sovereignty over it, is conclusive of the nation's title and rightful authority.' 136 U.S. at page 510, 10 S.Ct. at page 1054. The Court went on to quote the following from State of Rhode Island v. State of Massachusetts, 4 How. 591, 639, 11 L.Ed. 1116, 'For the security of rights, whether of state or individuals, long possession under a claim of title is protected; and there is no controversy in which this great principle may be invoked with greater justice and propriety than in a case of disputed boundary.' 136 U.S. at page 511, 10 S.Ct. at page 1054.
Accepting, as I think we should, the desire of Congress to have the ancient boundaries of these Gulf States determined on the basis of their long-unchallenged claims, rather than by the use of subtle and refined legal inferences, I am led to the conclusion that the other Gulf States, as well as Texas, are entitled to prevail over the Government here. It is admitted that prior to 1937 the United States never claimed any title to, or exercised any possession over, any part of these marginal lands, either within or without three-mile limits, except under grants from the States. On the other hand, each of the Gulf States began to exercise acts of possession, ownership, dominion and sovereignty over the marginal belt from the time of admission into the Union, without regard to any three-mile limit. The hearings of Congressional Committees show and their reports assert that very large sums of money have been spent by the States and their public agencies and grantees in the development and improvement of the marginal submerged lands adjacent to the States' borders. Not only have the States' possession, dominion and sovereignty over these marginal belts been open and notorious, but that is coupled with the fact that for much more than a century federal departments and agencies not only acquiesced in but unequivocally recognized the States' rightful claims to these belts. It is conceded that in many instances the Government itself has deemed it necessary to acquire title from these States before attempting to exercise any power of its own. There is nothing to indicate that the claims or uses of the marginal lands were ever limited to three miles. Certainly there is no evidence before us, and there was none before the Congress, that up to 1937 the United States had ever attempted to limit the sovereignty of the Gulf States within boundaries three miles from their coasts. On the other hand, evidence considered by the Congressional Committees and argued to us provides ample support for holding that the Gulf States did not consider their boundaries as limited to three miles.
The constitutions of all these States defined their boundaries when they were admitted into the Union. The first Texas Constitution kept in force the same boundary, three leagues into the Gulf, claimed for the Republic of Texas before it became a State. This definition was presented to Congress as a reason why Texas should be granted three leagues. The constitutions of all of the other States involved here defined their coastal boundaries as extending from one Gulf point to another 'including all islands' three or six leagues from the shore or coastline. The legislative history of the Submerged Lands Act shows that these definitions were repeatedly called to the attention of Congress as a reason why these Gulf States should be granted three leagues or more. From the standpoint of the paper boundary claims, Texas urges, on the basis of the more precise definition of its seaward boundary, that it has a stronger case than the other States. Although all these paper claims were considered by Congress, none was treated as decisive of the question of state boundaries, as is clearly shown by Congress' refusal to make Texas and Florida the exclusive beneficiaries of this Act simply because their constitutions had specifically defined a three-league seaward boundary. Nevertheless, each constitutional definition provides some color of title for each State's claim of a boundary extending at least three leagues from its coastline. The paper claims of each State, therefore, merely add some weight to the overwhelming fact, as Congress saw it, that for more than 100 years all the Gulf States exercised the only possession, dominion and sovereignty over the submerged lands adjacent to their coastlines that was ever exercised at all. The admitted facts with reference to these state boundaries thus entitle all the States to three-league marginal belts, if we fairly apply the equitable principles of prescription under which Congress declared this controversy between the Federal Government and the Gulf States should be settled.'
The result of the Court's holding in this and the Florida case is that Texas and Florida will have marginal belts that uniformly extend three leagues from their shores. The other Gulf States, however, are not so fortunate. Their boundaries will extend only three miles in some places. The Government concedes, however, that their boundaries extend three miles beyond the coastline of their islands-which may be as far as six leagues from the mainland. Thus, Louisiana, Mississippi and Alabama will have irregular saw-toothed boundaries projecting six leagues at some points and retreating to within three miles of the mainland at other points. This condition follows from the Government's concession that all lands between the States' islands and the mainland are lands beneath inland waters. The mere exercise of jurisdiction over such jagged boundaries as these raises serious problems. Moreover, there is an element of fundamental unfairness about granting Texas and Florida ownership and sovereignty over three-league marginal belts while denying it to their sister States bordering the Gulf of Mexico. This is bound to frustrate the intent of Congress to settle this whole Gulf States controversy at this time.
The unfairness of the Court's result is particularly emphasized when we consider the plight in which it leaves Louisiana. One of the grounds that Congress assigned for its desire to restore these lands to the States was its strong belief that the States rather than the Federal Government should exploit their offshore oil. This desire rested on two conclusions: (1) that the States would do it better and more effectively for the interests of the public at large, and (2) that it would be unconscionable to take this oil away from the States after they had been solely responsible for bringing it into the public use. The record shows that Louisiana had leased land out more than three leagues from its coastline as early as 1920. There are still oil wells out there. For many years royalties from those wells have gone into the public treasury of the State of Louisiana. This income has become a part of the very life of the State. It constitutes a large part of the support of the State's public-school system. To take these marginal lands away from the State of Louisiana and give Texas the lands it claims-when Texas apparently has no wells at all beyond the three-mile limit-seems to me completely incompatible with the kind of justice and fairness that the Congress wanted to bring about by this Act. Moreover, I am not at all sure but that this result will completely upset the congressional desire to bring about once and for all a settlement of this long-standing controversy by passage of the Submerged Lands Act.
Nothing in the Act itself indicates that Texas was to be given any more consideration in this case than Louisiana, Mississippi and Alabama. Had Congress wanted to give the land to Texas and refuse to give it to the other States it easily could have done so. In fact, this was specifically suggested to Congress by the Attorney General of the United States, and the Congress rejected it. Time and again Congress emphasized that its interests were focused on the problem of these lands because of the unfairness it saw in taking them from the Gulf States.
As Congress indicated, it is time that the problem be solved, the title be quieted and the controversy be stilled. In my judgment to interpret this Act in a way which grants the land to Texas and Florida and withholds it from the other Gulf States simply prolongs this costly and disquieting controversy. It will not be finally settled until it is settled the way Congress believes is right, and I do not think Congress will believe it right to award these marginal lands to Texas and Florida and deny them to the other Gulf States.
[For opinion of MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE BRENNAN, MR. JUSTICE WHITTAKER and MR. JUSTICE STEWART, see post, p. 129. (363 U.S. 129, 80 S.Ct. 1030.)]
Mr. Justice DOUGLAS, dissenting in part.

## Notes

* ↑ 67 Stat. 29, 43 U.S.C. §§ 1301-1315, 43 U.S.C.A. §§ 1301 1315.
* ↑ H.J.Res. 225, 79th Cong., 2d Sess., 92 Cong.Rec. 10660; S.J.Res. 20, 82d Cong., 2d Sess., 98 Cong.Rec. 6251.
* ↑ United States v. State of Texas, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 1221; United States v. State of Louisiana, 339 U.S. 699, 70 S.Ct. 914, 94 L.Ed. 1216; United States v. State of California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889.
* ↑ '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.' S.Rep. No. 133, 83d Cong., 1st Sess. 56, from the reprint, in Appendix E, of S.Rep. No. 1592, 80th Cong., 2d Sess., U.S.Code Cong. and Adm.News 1953, p. 1385 et seq.
* ↑ 'Finally, it is the intent and purpose of this bill to establish the law for the future so that the rights and powers of the States and those holding under State authority may be preserved as they existed prior to the decision of the Supreme Court of the United States in the California case.' S.Rep. No. 133, 83d Cong., 1st Sess. 75. This is the closing paragraph of S.Rep. No. 1592, 80th Cong., 2d Sess., printed as an Appendix to the Report on the 1953 Act. See also S.Rep. No. 133, 83d Cong., 1st Sess. 6: 'The offshore rights which are confirmed to the States and their grantees are rights growing out of the concept of ownership and proprietary use and development-rights which were first asserted by the Federal Government in recent years and which it has never exercised nor enjoyed. These rights, legally vested in the States and their grantees by Senate Joint Resolution 13, have in fact been enjoyed and exercised by them from the beginning of our history as a nation until the date of the California decision.' And see Hearings before the Senate Interior and Insular Affairs Committee on S.J.Res. 13, etc., 83d Cong., 1st Sess. 32.
* ↑ 'It is * * * declared to be in the public interest that * * * title to * * * the lands beneath navigable waters within the boundaries of the respective States * * * be * * * vested in and assigned to the respective States * * *.' 43 U.S.C. § 1311(a), 43 U.S.C.A. § 1311(a). 'The term 'lands beneath navigable waters' means * * * (2) all lands * * * seaward to a line three geographical miles distant from the coast line of each such State * * *.' § 1301(a).
* ↑ 'Moreover, at the time Louisiana and Texas extended their seaward boundaries to 27 marine miles, the United States was not claiming ownership or jurisdiction and control over the Continental Shelf. Actually, some years earlier the State Department had taken the position that the United States had no jurisdiction over the ocean bottom of the Gulf of Mexico beyond the territorial waters adjacent to the coast and that therefore it was not in a position to grant a lease on this area. * * *
* ↑ Under the heading 'Equity best served by establishing State ownership,' the earlier Senate Report incorporated in the Report on the 1953 Act summarizes the equitable features involved:
* ↑ 99 Cong.Rec. 4393-4394.
* ↑ Hearings before the Senate Committee on Interior and Insular Affairs on S.J.Res. 13, etc., 83d Cong., 1st Sess. 69.
* ↑ 99 Cong.Rec. 4382.
* ↑ S.Rep. No. 133, 83d Cong., 1st Sess. 68, 67. And see statement of Senator Daniel in the Hearings before the Senate Interior and Insular Affairs Committee on S.J.Res. 13, etc., 83d Cong., 1st Sess. 695.
* ↑ Id., at 24.
* ↑ Text accompanying note 12, supra.
* ↑ The other two cases were United States v. State of Texas, 162 U.S. 1, 16 S.Ct. 725, 40 L.Ed. 867, and State of New Mexico v. State of Texas, 275 U.S. 279, 48 S.Ct. 126, 72 L.Ed. 280. S.Rep. No. 133, supra, at 67.
* ↑ See note 5, supra.
* ↑ 'States and their grantees have expended millions of dollars to build piers, breakwaters, jetties, and other structures, to install sewage-disposal systems and to fill in beaches and reclaim lands. During the past two decades California, Louisiana, and Texas have been leasing substantial portions of the lands in question for oil, gas, and mineral development. California commenced such leasing in 1921 and Texas in 1926. Other States, including Washington, Florida, Mississippi, North Carolina, and Maryland, have made leases for like purposes. States have levied and collected taxes upon interests in and improvements on these lands. It appears to the committee that the States have exercised every sovereign right incident to the utilization of these submerged coastal lands.' S.Rep.No.133, 83d Cong., 1st Sess. 64, from S.Rep.No.1592, 80th Cong., 2d Sess. Senator Holland placed the figure at 'billions of dollars of invested money.' Hearings before the Senate Interior and Insular Affairs Committee on S.J.Res. 13, etc., 83d Cong., 1st Sess. 74.
* ↑ President Truman, in his veto message of S.J.Res. 20, 82d Cong., 2d Sess., acknowledged that, 'Even so careful and zealous a guardian of the public interest as the late Secretary of the Interior, Harold Ickes, at first assumed that the undersea lands were owned by the States.' H.R.Rep.No.215, 83d Cong., 1st Sess. 104. And the Senate Report noted that 'The facts are conclusive that at least prior to 1937 the policy of the executive departments of the Government has consistently been to recognize State ownership of the submerged lands, whether inland or not, within the territorial jurisdiction of the State.' S.Rep.No.133, 83d Cong., 1st Sess. 65, from S.Rep.No.1592, 80th Cong. 2d Sess. A letter to this effect written by Secretary Ickes in 1933 was read at the Hearings before the Senate Interior and Insular Affairs Committee on S.J.Res. 13, etc., 83d Cong., 1st Sess. 68. And see note 7, supra, and accompanying text.
* ↑ Senator Holland mentioned an incomplete list prepared by California of 195 such instances involving all coastal States, and he discussed two specific grants from Florida to the Federal Government. Hearings before the Senate Interior and Insular Affairs Committee on S.J.Res. 13, etc., 83d Cong., 1st Sess. 63 64, 65, 66, and see Senator Daniel's statement at 233.
* ↑ Texas Const.1845, Art. XIII, § 3, Vernon's Ann.St.Tex., continued in effect 'All laws * * * in force in the Republic of Texas,' thus including the 1836 Boundary Act. Republic of Texas Boundary Act, December 19, 1836, 1 Laws of the Republic of Texas 133 (3 leagues).
* ↑ These provisions are found in Ala.Const., 1819, preamble 6 (leagues); Miss.Const., 1817, preamble (6 leagues); La.Const., 1812, LSA-Const., preamble (3 leagues).
* ↑ By another opinion, handed down this day, we have held that Florida is entitled to a three-league marginal belt because Congress in 1868, 15 Stat. 73, expressly approved the Florida Constitution which precisely defined a three-league seaward boundary. United States v. State of Florida, 362 U.S. at page 121, 80 S.Ct. at page 1026.
* ↑ See text accompanying notes 12 and 15, supra.
* ↑ See note 22, supra.
* ↑ 'The committee believes that failure to continue existing State control will result in delaying for an indefinite time the intensive development now under way on these lands and that any delay is, in the words of Secretary Forrestal, 'contrary to the best interest of the United States from the viewpoint of national security.' * * * Local controls and promptness of action are highly desirable. The fixed, inflexible rules and the delays and remoteness which are inseparable from a centralized national control would, in the committee's judgment, be improvident.' S.Rep.No.133, 83d Cong., 1st Sess. 70, 71, from S.Rep.No.1592, 80th Cong., 2d Sess.
* ↑ 'Therefore, the committee concludes that in order to avoid injustices to the sovereign States and their grantees, legislative equity can best be done by the enactment of S.1988.' Id., at 68. And see notes 8-10, supra.
* ↑ See discussion in Hearings before the Senate Interior and Insular Affairs Committee on S.J.Res. 13, etc., 83d Cong., 1st Sess. 341, and Joint Hearings before House Committee on Judiciary, Senate Special Judiciary Subcommittee on H.J.Res. 118, etc., 79th Cong., 1st Sess. 82.
* ↑ See note 7, supra, for the statement of the Louisiana Registrar in 1945. She also said:
* ↑ See note 31, infra.
* ↑ 'In order that there may be no misunderstanding, generally speaking what we have in mind is the 3-mile line, except for the coasts of Texas and the west coast of Florida, where 3 leagues would generally prevail.' Hearings before the Senate Committee on Interior and Insular Affairs on S.J.Res. 13, etc., 83d Cong., 1st Sess. 957. And see 926, 931-933, 957-958, and Senator Jackson's comments, at 279-281.
* ↑ 'The committee deems it imperative that Congress take action at the earliest possible date to clarify the endless 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 of the resources in these lands will inevitably result. * * * We are certain that until the Congress enacts a law consonant with what the States and the Supreme Court believed for more than a century was the law, confusion and uncertainty will continue to exist, titles will remain clouded, and years of vexations and complicated litigation will result.' S.Rep. No. 133, 83d Cong., 1st Sess. 57, 61, from S.Rep. No. 1592, 80th Cong., 2d Sess.
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