# United States v. California (381 U.S. 139)/Dissent Black

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* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Black
United States Supreme Court
381 U.S. 139
United States v. California (381 U.S. 139)
Argued: Dec. 7 and 8, 1964. --- Decided: May 17, 1965
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.
In 1947 in United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889, this Court held that the United States had paramount rights in the waters and submerged lands lying adjacent to its coastlines. A Special Master was appointed to apply the rule of that case to segments of submerged land off the mainland of California. In 1953 Congress, believing that this Court's decision unfairly denied to the coastal States submerged lands within their historic boundaries, passed the Submerged Lands Act to upset that decision and restore to the States what Congress believed had historically and rightfully been theirs. The Court today decides this case on the basis of the 13-year-old Master's Report which attempted to carry out the 1947 California opinion and decree. Instead of relying on that 1952 Report, which was based on a decision which Congress in 1953 forcefully and emphatically rejected in the Submerged Lands Act, I would refer this case to a Master for new hearings, findings and recommendations to be made in light of the Submerged Lands Act, the controlling statutory law as it now exists.
The issue in this case is whether California or the United States is the owner of seven segments of land lying under the sea off the mainland of California. Most of the segments lie under or outside what are called bays in popular usage, and as to them the question is whether and how much of the land underlying them and the marginal sea beyond belongs to California. One large segment, which also includes two of the bays in issue, touches the sea opposite a chain of islands which lie up to approximately 50 miles off the mainland, separated by the Santa Barbara Channel, the San Pedro Channel, and the Gulf of Santa Catalina. As to that segment, California claims ownership of the sea bottom under the water separating the islands from the mainland and three miles beyond the islands, while the United States argues that California owns only a strip three geographic miles wide around each island and one extending three geographic miles from the mainland shore, with the intervening submerged land all belonging to the Federal Government. In order to understand the present contentions of the parties, it is necessary to go back to the years before 1945, the year in which the dispute of which the present controversy is an aftermath came before this Court.
For many decades some of the States bordering on the sea had claimed dominion over water and submerged lands lying off their shores. Their claims usually were stated as extending into the open sea a distance of three statute miles, three geographic miles, or three marine leagues from their 'coast lines.' But 'coast line,' as the term was used in many such claims, and as it is used in modern geographic descriptions, does not mean simply the low-water mark of the mainland shore; rather, it means a legally recognized line which follows the low-water mark of the shore where the shore is relatively straight and facing open sea, and which at other points follows the recognized outside limits of 'inland waters,' which flow into the sea or form indentations in the land. Such 'inland waters' may include certain estuaries, bays and harbors, and waters between a mainland and offshore islands.
For many years the Federal Government raised no objection to the various States' claims that their boundaries, including claims to the marginal sea, extended outward for various distances into the sea. However, by the 1930's it became apparent that the submerged lands off the shores of certain States contained rich and valuable oil reserves and other natural resources. In the late 1930's it was for the first time asserted that in spite of the States' historic claims the United States, and not the respective coastal States, was the owner of all submerged lands lying both within and without the three-mile limits, except for land under 'inland waters.' California and other States claimed that they were the owners of all submerged lands within their historic boundaries dating back to their respective admissions to the Union, including of course both historic inland waters and a three-mile or three-league strip of marginal sea beyond. To settle this controversy the United States in 1945 brought in this Court the action against California of which today's decision is an aftermath, alleging that the United States was 'the owner in fee simple of, or possessed of paramount rights in and powers over, the lands, minerals and other things of value underlying the Pacific Ocean, lying seaward of the ordinary low water mark on the coast of California and outside of the inland waters of the State, extending seaward three nautical miles * * *.' California objected immediately that the complaint was vague because the Government did not make clear how broadly or narrowly it defined 'inland waters.' California also answered that its historic boundaries as set out in its constitution in 1849, approved when it was admitted to the Union, included not only a strip out to three miles from its coast, but also 'all the islands, harbors, and bays along and adjacent to the Pacific coast,' and that therefore 'all lands under all navigable waters within the boundaries of the State' belonged to it. This Court then held in 1947 in United States v. California, 332 U.S. 19, 67 S.Ct. 1658, that the United States and not California had paramount rights in all the waters and submerged lands within the three-mile belt of marginal sea 'outside of the inland waters.' 332 U.S. 804, 805, 68 S.Ct. 20, 21, 92 L.Ed. 382. See also United States v. Louisiana, 339 U.S. 699, 70 S.Ct. 914, 94 L.Ed. 1216; United States v. Texas, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 1221. As for the problem of deciding what were inland waters and what were not, and of drawing an exact demarcation between the inland waters and a three-mile strip of marginal sea, this Court said that 'there is no reason why, after determining in general who owns the three-mile belt here involved, the Court might not later, if necessary, have more detailed hearings in order to determine with greater definiteness particular segments of the boundary.' 332 U.S., at 26, 67 S.Ct., at 1662.
It was not long before such hearings did become necessary, for the United States and California found themselves in sharp disagreement as to what the term 'inland waters' meant when applied to specific segments of the California coast. Both parties assumed at that time long before the Submerged Lands Act was passed, that the term was to be given a content derived from the usage of international law and the United States' foreign relations, since the California decision in upholding the claim of the United States to land under the three-mile belt of marginal sea had relied on the necessity of federal protection and control of the territorial seas as an incident of national sovereignty. But the doctrines of international law were so confused and contradictory as to exactly what measurements a bay must have to be inland water, and under what conditions a channel between islands and the mainland was inland water, that both sides were able to find precedents supporting them. This Court therefore submitted the case to a Special Master to make findings of fact and recommendations of law as to whether each of seven segments of submerged land off the mainland of California, the same seven now in dispute, should be treated as 'inland waters' within the meaning of the California opinion and decree, and therefore the property of the State. 342 U.S. 891, 72 S.Ct. 198, 96 L.Ed. 668. On October 14, 1952, the Master filed his Report, 344 U.S. 872, 73 S.Ct. 163, 97 L.Ed. 676, in which he said he assumed that the test of whether the land in dispute belonged to California depended on whether it was inland water 'by (1) any customary, generally recognized rule of international Law * * * or by (2) effective assertion by the United States on its own behalf in its international relations.' He thus considered any claim based on the historic boundaries of the State as totally irrelevant, as having been rejected in this Court's 1947 opinion, and he ruled in substance that the United States was the owner of the submerged lands in question to the extent it claimed. Whether the test he used correctly interpreted the opinion need not concern us at this point. California of course filed exceptions, as did the United States. Then in 1953 Congress entered the picture by passing the Submerged Lands Act, and for more than 10 years, during which neither of the parties took any further steps in this Court and the Master's Report lay dormant, it appeared that the Act of Congress had determined the dispute.
The Submerged Lands Act of 1953 gave to the coastal States 'title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters * * *.' It defined 'lands beneath navigable waters' as all submerged land lying within three geographic miles seaward of the 'coast line' of the State, which was in turn stated to be the low-water mark where the mainland was in direct contact with the open sea, and elsewhere the seaward limit of the 'inland waters.' The Act said, in language of extreme importance to the resolution of the present dispute at the present time, that each State was to have title to submerged lands 'to the boundary line of each such State' with the term 'boundaries' meaning 'the seaward boundaries of a State * * * as they existed at the time such State became a member of the Union, or as heretofore approved by the Congress,' up to a limit of three geographic miles from the coastline in the Atlantic and Pacific Oceans, and three leagues from the coastline in the Gulf of Mexico. Thus each State was given title to the submerged lands off its shores out as far as its boundaries at the time the State entered the Union, which were stated not to go more than three miles (or leagues) beyond its 'coast line.' The 'coast line' was the outer limit of its 'inland waters.' The basic question here is whether the State's 'coast line' as the term is used in the Act is to be determined by looking at the State's historic boundaries when it entered the Union, or by the standard used by the Master in carrying out the California decree.
For 10 years after the Act was passed transferring title to these submerged lands to the States, no further action in the case pending in this Court was taken by either the United States or California. California's original claim that these bays and channels were inland waters within the meaning of this Court's decree had ceased to be so important, since the States had been given title to all the submerged lands out to their historic boundaries, including recognition of their claims to three miles or leagues of the marginal sea. After 10 years had passed, however, exploitation of undersea oil resources had become possible in deep water at great distances from the mainland, and the United States raised this present dispute with California concerning where the outer limit of the submerged land given the State by the Submerged Lands Act lay. The United States contends that this depends on the location of the 'coast line' since the State's added rights extended three miles from the 'coast line,' and that the location of the 'coast line' depends in turn on the location of the seaward edge of the 'inland waters,' which the United States argues should be measured according to the definition of 'inland waters' used by the Master in his hearings in the California case; the United States further argues that the report of the Master settled the case, and that the subsequent passage of the Submerged Lands Act had no effect on the correctness of the standard he used. California replies that since the stated purpose of the Act was to restore the States' claims to the submerged lands within their historic boundaries which included all waters within the States' boundaries as inland waters and three miles beyond into the territorial sea, the 'coast line' or seaward edge of the 'inland waters' was to be defined in terms of what a State had historically claimed was its coastline, the line from which it had measured its boundary, by its three-mile claim to the marginal sea. In other words, the United States proposes that in measuring California's submerged lands even under the Submerged Lands Act this Court should start with a line of internationally defined 'inland waters' as applied by the Master in carrying out the decree in the California case, and measure three miles out. California argues that since the effect of the California case was rejected by the Submerged Lands Act, this Court should look only to the Submerged Lands Act for the governing law and in defining the State's boundary should start with the coastline as historically recognized when the State was admitted to the Union from which the State measured its three-mile claim of marginal sea, and measure three miles outward from that historic coastline, thus restoring the State's historic boundaries. I think that the language and purpose of the Submerged Lands Act of 1953 show that California is right.
This Court's 1947 holding precipitated one of the most hotly contested political issues of the post-war decade. Critics of the decision said that it had come as a complete surprise and had effectively taken away from the coastal States what they and others had thought from the time they entered the Union and before belonged to them. In 1952 a resolution passed both houses of Congress designed to 'restore' to the States the submerged lands which they had thought they owned before the California decision. Many opposed this bill as a 'give away' of the federal public domain, and President Truman prevented the bill's passage by vetoing it. Even in so doing, however, he recognized frankly 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.'
The controversy over whether to upset the Federal Government's title which this Court had declared in the 1947 decision continued, however, and on January 9, 1953, Senator Holland of Florida on behalf of himself and 39 other Senators introduced a bill, Senate Joint Resolution 13, which was identical with the bill which had passed the previous year and which, with various amendments, passed both houses of Congress, was signed by President Eisenhower, and became law as the Submerged Lands Act of 1953. The stated purpose of the law as enacted was
'To confirm and establish the titles of the States to lands beneath navigable waters within State boundaries and to the natural resources within such lands and waters * * * and to confirm the jurisdiction and control of the United States over the natural resources of the seabed of the Continental Shelf seaward of State boundaries.'
As the first witness to testify at the Senate committee hearings on his bill, Senator Holland said that
'the general purpose of Senate Joint Resolution 13 is to recognize, confirm, establish, and vest in the several States and this means all 48 of them-the submerged lands and the natural resources therein within their respective boundaries, subject to the exercise of all of the powers or regulation of the Federal Government for the purpose of commerce, navigation, national defense, and international affairs, none of which Federal powers include any property rights. This joint resolution will confirm to the maritime States-of which there are 20-the rights which they had respectively enjoyed since the founding of our Nation and up to the date of the decision in the California case, in their offshore lands and waters which lie within their constitutional boundaries.'
Its object, he said, was 'restoring to the States their plenary rights, property, jurisdiction, and control which they exercised without question for 150 years over the areas lying within State boundaries.' It dealt only, he said, with the area within 'the States' historic or constitutional boundaries.' Those who testified in favor of the bill stated their objective the same way. Thus Secretary of the Interior McKay said:
'I do believe that the national interest would be best served by restoring to the various States the coastal offshore lands to the limits of the line marked by the historical boundaries of each of the respective States.'
There can be no doubt, I believe, and I do not understand the Court to question, that, as proposed to the Senate Committee on Interior and Insular Affairs by Senator Holland and others, the bill which became the Submerged Lands Act unquestionably was intended to give the States title to all the offshore lands going out at least as far as the respective States' historic boundaries. A brief filed in this Court in another case shows that in the reported deliberations on the bill the term 'historic State boundaries' was used 813 times, 'original boundaries' 121 times, and 'traditional' boundaries 114 times. Since I take it that the Court concedes that this was the original purpose, see ante, pp. 153-154, I shall not bother to set forth all the statements of proponents of the bill at the Senate hearings, as well as at the House hearings, which stated flatly that this was its purpose.
We start then from the conceded fact that the bill as originally introduced gave California title to all the submerged lands off its shore out to its historic boundaries, whatever they might prove to be. The Court, however, pins its case for denying California those historic boundaries on what it calls two 'relevant,' indeed fundamental, changes, ante, p. 150, made in the bill prior to its passage, which the Court says show that the bill's sponsors suddenly altered their intent and decided instead of restoring to California and other States mineral rights within their historic boundaries, to limit them to a three-mile or three-league strip of marginal waters along 'coast lines' which were to be restrictively defined according to current policies of international relations adhered to by the State Department. A study of the legislative history convinces me that in making the two changes on which the Court relies, the Senators intended in no way to alter the purpose of the original Holland bill to restore to the States all the waters and submerged lands within their historic constitutional boundaries. They expressly, vigorously and repeatedly avowed that the original purpose was unchanged.
A. THE REMOVAL OF THE DEFINITION OF 'INLAND WATERS.'
As originally drafted, § 2 of the Holland bill defined 'inland waters,' which extended to the 'coast line,' as including
'all estuaries, ports, harbors, bays, channels, straits, historic bays, and sounds, and all other bodies of water which join the open sea.'
This definition would of course unquestionably give California title to submerged lands lying under all its historically recognized bays and straits as part of California's 'inland waters,' quite apart from the fact that they might also lie within California's historic boundary of inland waters plus marginal sea. The Deputy Legal Adviser of the State Department testified that such a legislative definition of inland waters, even though limited to the purpose of the bill of affecting property rights between the United States and the States, 'a purely domestic matter,' might possibly embarrass the State Department in its foreign relations if the Department asserted a different definition of the words 'inland waters' in its relations with foreign nations. The Attorney General warned that to attempt to define the coastline in a few words might increase rather than diminish litigation. As a result, Senator Cordon, the Acting Chairman of the Committee, at the conclusion of the hearings quoted the language defining 'inland waters' for purposes of the Act and said:
'That language was objectionable to the State Department and to the Department of Justice. That isn't, in itself, in my opinion, reason to strike it, but I am of the opinion that the objections were sound. The matter of inland waters is one that has been defined time and time again by the courts, not, I believe, in any one all-inclusive definition, but it was felt that the use of these words were an attempted legislative definition of the term 'inland waters,' and it was inadvisable for us in this bill, which is a transfer of title, to attempt to make law in the other field of what is or is not inland water.'
At another point he explained that the language was struck simply because
'It was sought not to get into that field because you were in a field then where, in our attempts to take care of a purely domestic matter, we might be putting the United States on record with a precedent which we intended only to apply domestically but which might be applied internationally.'
'The elimination of the language still follows what the Chair understands to be the philosophy of the bill, that we are putting the States where they thought they were, and not attempting now to create either a situation in law or a basis for a rule of evidence that may or may not have been sound when the States came into the Union.'
Senator Daniel of Texas, a leading advocate and sponsor of the bill, said:
'I agree fully with the chairman that the striking of these words was not done in any manner to prejudice the rights of the States * * *. I just want to state that for the record, if this record is ever used in the future.'
Senator Cordon, who had proposed the change, replied:
'I appreciate the statement of the Senator, and I concur in it, so far as the action taken here is concerned.'
And Senator Anderson, another member of the Committee reporting the bill, agreed:
'I subscribe fully to what the chairman said quite awhile ago in pointing out that this bill does not seek to take away from or add to the position of these States as they came into the Union.'
When the bill was reported out of committee and presented to the Senate, its supporters made clear that the Committee had made no change in its original objective of restoring to the States everything within their historic boundaries. Senator Holland said it was an 'obvious fact' that the bill was 'giving to the States that which, without question, was enjoyed by them for 150 or 160 years, namely, the ownership of everything within State boundaries, and reserving to the Federal Government everything beyond that.' Senator Cordon expressed his understanding that
'The boundaries of the States cannot be changed by Congress without the consent of the States. We cannot do anything legislatively in that field, and we have not sought to do so in this measure.
'I think that answers all and every one of the discussions with reference to boundary lines of the States, including whether they are measured from low water, high water, inland water, or some island.'
'By way of a brief summary, the general purpose of this measure as reported by the Interior and Insular Affairs Committee is to recognize, confirm, establish, and vest in and assign to the respective States the title and ownership of the lands and resources beneath navigable waters within their respective boundaries * * *.'
'Until recently the Federal Government never thought it owned these lands, and even until now it has never possessed or used them. The lands are still in the possession of the States * * *. The passage of the pending proposed legislation will simply permit the States to keep what they have always had since the foundation of the Union.'
If that were not enough to show that the removal of the definition of inland waters from § 2 of the bill as a courtesy to the State and Justice Departments was to have no substantive effect, the Senate Committee said at the beginning of its report on its version of the bill:
'The committee wishes to emphasize that, as will be seen from comparison with the measure as introduced, the changes are primarily those of form and language, and the committee amendment is consistent throughout with the philosophy and intent of Senate Joint Resolution 13 as introduced. The only change of substance is found in section 9, in which the jurisdiction and control of the Federal Government over the natural resources of the seabed of the Continental Shelf seaward of historic State boundaries is confirmed.'
Thus the continued intention to confer on the State all submerged lands within their 'historic boundaries' was again reiterated. And in a specific reference to the elimination of the definition of inland waters from § 2, the Committee Report said that the words had been deleted
'because of the committee's belief that the question of what constitutes inland waters should be left where Congress finds it. The committee is convinced that the definition neither adds nor takes away anything a State may have now in the way of a coast and the lands underneath waters behind it.'
The Committee had before it the report of the Special Master in this very case and did not adopt his criteria, based on the California decision, for determining inland waters, criteria which included the Boggs formula for determining bays, a formula which many Senators indicated they disapproved and which the Committee Report specifically stated it did not mean to establish as the law. Clearly the position of the Committee was that it really cared only about restoring to the States their claims to submerged lands within their historic boundaries, which of course included all the lands, bays, harbors and channels within those boundaries-their historic coastlines-and three miles or leagues of marginal sea. The Committee saw no reason to attempt to spell out its definition of inland waters, as including all historic bays and channels, when there was no reason to do so and when to do so might possibly have embarrassing repercussions on American foreign relations, where different definitions of inland waters prevailed. Lest anyone misconstrue the change, the Committee said with reference to it:
'The elimination of the language, in the committee's opinion, is consistent with the philosophy of the Holland bill to place the States in the position in which both they and the Federal Government thought they were for more than a century and a half, and not to create any situations with respect thereto.'
The Court reads this change in words as showing 'a legislative intent to leave the definition of inland waters to the courts without restriction.' Ante, p. 154. The Court agrees that before this change was made, the bill gave the States all the submerged lands out to their historic boundaries. The Court admits that the 1947 California decision rejected the States' claims to their historic boundaries and, according to the Court, set up a test of international law and foreignpolicy standards for measuring inland waters. But the Court concludes that when the Committee said that it was leaving the States with the rights to inland waters which they had before the California decision, it really meant to establish the international law standard, including the Boggs formula (except insofar as that formula has since been abandoned by treaty) which many Senators had so strenuously opposed and which in their Committee Report they specifically stated they did not mean to adopt. I think that a fair reading of the discussion of this change shows that the Committee members intended that all the States should have their boundaries, including a belt of marginal sea and all the lands and waters from which they had historically measured their claims to the marginal sea, which they thought would have been recognized as such by the courts up to the time of the California decision, and that the test of inland waters and coastlines was therefore an historical one. The Committee regarded the California decision as a complete aberration, and assumed that before it all courts would have judged inland waters by historical tests, as in fact several California and federal decisions show they had. I cannot understand how the Court reasons that when the Committee said that it left the States as it thought they were before the California decision, it really meant to put them in the position the Court says they were in after that case, insofar as inland waters and their coastlines are concerned. I think that the amendment did just what the Committee said it did: it freed Congress from the need of 'having to determine matters that are highly technical,' and left it for the States to prove if they could the facts to support their historic claims that particular bodies were inland waters behind the coastline. Senator Kuchel of California, fully familiar with the problems of California, and on the alert to protect that State's interest in the bays and channels within its historic boundaries, interpreted the bill properly, I think, when he said:
'In recognizing State ownership of lands beneath navigable waters within historic State boundaries, this joint resolution wisely makes no attempt to define exactly what those boundaries are. In substance, the resolution provides that each of the States has ownership of all lands beneath navigable waters extending, in the case of littoral States, 3 geographical miles seaward from its coastline, or to its historic boundary.'
Thus up to this point in the legislative history I think it can be said that (1) the Holland bill as originally drafted unquestionably gave the States title to all submerged lands out as far as their historic boundaries; and (2) the elimination of the legislative definition of inland waters did not alter the original intent of the bill in the slightest degree, but rather left it up to the States to prove that particular bays, channels or harbors were inside their coastlines as part of their 'historic boundaries,' according to 'the position in which both they and the Federal Government thought they were for more than a century and a half.'
B. THE THREE-MILE OR THREE-LEAGUE LIMITATION.
The Court calls attention to one other change in the bill before its enactment, and on the significance attributed to this one small change depends the validity of the Court's entire opinion. The Court says that this change was fundamental, of vital importance. It says that to the extent of this change, 'the philosophy (of the Holland Bill) was modified.' Ante, p. 154. I find this altogether surprising, since when the change was introduced-by Senator Holland himself-and adopted almost immediately without any opposition being voiced, he said it was 'just a minor change of verbiage,' one of several 'minor changes for the purpose of clarification.' If the change was to have the dramatic effect which the Court attributes to it, Senator Holland certainly did not recognize it, for he said that it did 'not depart in the slightest from the intention of the sponsors of the joint resolution.' This amendment along with others was adopted after discussion occupying less than two pages in the Congressional Record, without a roll-call vote, without even one single objection from the Senate floor. Fundamental changes in the basic purpose of bills are never adopted in that way. Senator Holland's explanation that this was 'just a minor change of verbiage' should be accepted by this Court, as I have no doubt it was accepted by the Senate.
This change which its sponsor thought was 'minor' and which the Court thinks is fundamental, and on which the Court's whole argument depends, merely modified the definition of 'boundaries' in § 2 of the Act by adding:
'but in no event shall the term 'boundaries' or the term 'lands beneath navigable waters' be interpreted as extending from the coast line more than three geographical miles into the Atlantic Ocean or the Pacific Ocean, or more than three marine leagues into the Gulf of Mexico.'
The Court says that this language implicitly did away with the original and continued intention of the proponents of the bill to 'restore' to the States the ownership of all submerged lands lying under all waters within their historic boundaries, wherever those boundaries lay, and instead established a rule that historic boundaries would not be honored if they extended more than three miles from the coastline, i.e., from the seaward edge of the inland waters as the Court today defines inland waters. The Court then reads the legislative history as destroying the historic definition of inland waters-which is, of course, all waters within a State's boundaries exclusive of claims to marginal sea-and substituting a very restrictive one based on this Court's decision in the California case, a reading which I have indicated above is, I think, flatly contrary to what the legislative history shows. The Court thus holds that by making two minor changes in the bill, which changes they said over and over again were of no substantive significance, the Senators supporting it silently repudiated in large measure their own intention, which they had proclaimed to the public and the Senate from the beginning and continued to proclaim to the end, of restoring to the States their historic constitutional boundaries.
This three-mile or three-league limitation amendment was added for a very simple reason, which is plain in the Congressional Record and which shows that the sponsors of the bill were reaffirming rather than abandoning their basic original purpose in offering this and similar bills: they wished to restore to the States the submerged lands out to their historic boundaries, including three miles or leagues of marginal sea, but no farther. As reported from Committee, the bill gave the States submerged lands out to their boundaries at the time they entered the Union 'or as heretofore or hereafter approved by Congress' without any limitation. It was feared by some that one or more of the States, none of which had ever claimed more than three miles (or leagues) of the marginal sea, might suddenly assert claims that their boundaries extended out hundreds of miles to the very limits of the Continental Shelf. If allowed to do this, the fear was expressed, such States would be taking title to mineral wealth far beyond the historic boundaries to which the sponsors of the bill wished to confine them. The sponsors stated that their purpose was merely to 'restore' to the States what they had thought they had had as boundaries-the outer part of the Continental Shelf was to belong to the Federal Government. In order to prevent any States from trying to use the word 'boundaries' in the Act to push their boundaries out beyond their historic three-mile or three-league claims to the marginal sea, Senator Holland himself introduced this amendment. It deleted the words 'or hereafter,' thus limiting the States to any boundaries which they had previously claimed, in spite of any claims they might make in the future; and it also set forth as a limitation the Senators' understanding of the maximum extent of the marginal sea historically claimed by any State from or as a part of its historic boundaries: three geographical miles in the Atlantic and Pacific Oceans, and three leagues in the Gulf of Mexico. As Senator Holland explained, a limitation to existing boundaries had been the intention of the bill's sponsors all along, and it had been and was the understanding of the sponsors that no States claimed that their historic boundaries extended more than three miles from their coastlines in the Atlantic or Pacific Oceans. He said the three-mile limitation was 'just a minor change of verbiage' made in order 'to make very clear that Congress at this time is seeking to do only those things which the authors and supporters of the joint resolution have so very fully, and rather repeatedly, stated for the RECORD heretofore during the course of the debate.' He reiterated that
'The amendment will simply indicate that this Senate, in the passage of the joint resolution, is certainly not inviting additional claims, and it knows of no additional claims.'
Senator Holland, as the record shows, and many other Senators were well aware of California's existing claim which is now before us, and could not have considered it to be 'additional.'
Time and time again the proponents of the bill stated before the amendment was passed that no State claimed more than three miles or leagues of marginal sea as part of its historic boundaries, and no State would be given rights by the bill beyond those original claims. Said Senator Holland, 'I emphasize the fact that this joint resolution does not extend the boundary of any State beyond the 3-mile limit.' Said Senator Daniel, again before the amendment:
'* * * those of us who are coauthors of this measure have always understood that it was not necessary to write into the pending legislation a specific provision that it shall not apply to lands beyond 3 miles, or 3 leagues, because all the States are claiming is 3 miles, except in the Gulf of Mexico where historic boundaries are 3 leagues from shore.'
'I believe that the exchange here within the past few minutes should make it very clear that the authors of this measure are not trying to give to the States, or to restore to the States, any lands outside their historic boundaries.'
The claims of the States to a belt of marginal waters of course did not determine the location of the coastline from which such a belt would be measured. California's historic coastline, it says, was the outer limit of the bays and islands. In limiting the States to their historic claims of three miles or three leagues from their 'coast lines,' wherever those 'coast lines' might be, Congress unquestionably, I think, was leaving totally undisturbed the validity of their historic claims to the boundaries from which those belts would be measured.
The Court's opinion lays great stress on an opinion expressed by Senator Holland that California's claim that its historic boundary of inland waters and marginal sea extended out to and three miles beyond its off-shore islands was not persuasive. The Court leaves the impression that Senator Holland made a ruling that California's claim would not be covered by the Act. In fact he did nothing of the kind, but merely expressed the opinion to opponents of the bill who said that restoring the States to their historic boundaries would give them too large an area of submerged lands and who cited California's claim to the channel as an example, that he thought California would have a difficult time in proving that its historic boundary extended so far. The context of Senator Holland's remarks is important to set out in full, since when read in context his opinion, which he later repeated on several occasions, serves to emphasize that he intended that each State be allowed to prove where its historic boundaries lay, which is all that California is asking that it be allowed to do here, and which is what the Court now denies it.
The exchange began when Senator Long of Louisiana asked Senator Holland about how far seaward Louisiana's boundary would extend under the bill. Senator Long said:
'Now, if I understand correctly, the Senator is not proposing that the actual determination of exactly what was the historic boundary at the time Louisiana came into the Union be decided by the Congress, but rather that the question of the historic boundary of the State might be one still subject to actual judicial determination.
'Senator HOLLAND. Of course, the Senator is right.
'Senator HOLLAND. We cannot draft general legislation that will still every possible legal question.'
Senator Anderson of New Mexico then asked Senator Holland whether the bill validated the claim of California that its historic boundary extended to the offshore islands with a three-mile belt of marginal sea beyond them. To this Senator Holland replied:
'The Senator from Florida can only give his opinion, and in his opinion it would not, because of the great depths of the water that exist between the coastline of California and the extrusions from the sea bottom which appear out there, and some of which are above the level of the water. Again, though the Senator from Florida states that that would be a matter, naturally, on which the courts would be asked to rule. We are not going to find any formula that displaces the function of the courts to go into cases and find which cases come within the general doctrine announced by legislation and which fall without that legislation.'
In other words, the bill did not settle definitively the question of fact as to whether California's historic boundary was to be measured from the outer rim of the islands. That was a question on which courts would have to hear evidence and then decide according to 'the general doctrine announced by (this) legislation'-the doctrine, as Senator Holland and others repeated so many times, that the States were to be restored to their 'historic boundaries.' And as he said in summary, there was nothing in his bill which would diminish California's claim to the waters and submerged lands around its offshore islands. In later referring to the adoption of Senator Holland's amendment to the bill, Senator Daniel of Texas said, 'the intention was to write specifically into the joint resolution what the authors have said all along would be its effect-that it covered only land within the historic boundaries.'
As a further indication that the three-miles-from-coast-line amendment was not intended to affect States' claims to their historic boundaries, the record shows that opponents of the bill subsequently tried to amend it to restrict the line from which the three-mile limits would be measured, and failed. Senator Douglas of Illinois, a leader of the opposition, proposed an amendment which would have changed the definition of 'coast line' in the bill so that the three miles would be measured only from the main continent, and separately around any islands, thus cutting off California's claim to the submerged lands between the islands and the mainland, which is largely the issue before us now. Senator Douglas indicated specifically that his proposed amendment was intended to destroy California's claim to those submerged lands, and that he had warned Senator Kuchel of California of his intention to introduce it. Senator Long of Louisiana objected that 'the Senator from Illinois is submitting his own definition of inland waters.' Senator Douglas' amendment was defeated, and California's historic claims, for whatever they might prove to be worth, were left, as Senator Holland had stated, undiminished.
I think that this review of the relevant hearings and debates in the Senate makes clear three things: (1) As originally proposed, the bill was intended to 'restore' to the States title to submerged lands within their historic boundaries, whatever those might prove to be. (2) The removal of the explicit definition of inland waters, far from being, as the Court views it, fundamental, was not a 'change of substance' and was 'not done in any manner to prejudice the rights of the States'; it was intended merely to avoid possible embarrassment in the field of international relations from a bill which had nothing to do with international relations or international law, being merely a 'transfer of title.' (3) The addition of the limitation of boundaries to three miles beyond the coastline, far from being, as the Court views it, fundamental, was 'just a minor change of verbiage' intended to make clear what the bill's sponsors had intended all along: that the bill was not designed to allow States in the future to push their boundaries out to the limits of the Continental Shelf, but rather to limit them to everything within their historic boundaries, including historic coastlines and historic three-mile or three-league claims to the marginal sea beyond.
Near the conclusion of the debates on the bill Senator Holland in explaining its purpose used these words, which I do not think show any fundamental or even perceptible changes or modifications of philosophy from those he had used in his first speech on the bill:
'The truth is that Senate Joint Resolution 13 simply restores or gives back to the States the submerged lands within their historic boundaries which they have possessed, used and developed in good faith for over 100 years. * * *
'* * * It would write the law for the future as it was believed to exist in the past by restoring to the States all lands beneath navigable waters within their historic boundaries.'
The hearings and debates in the House were less extensive than those in the Senate, but the intention of the legislators there to restore to the States all submerged lands within their historic boundaries was no less explicit. Forty different bills, of which one was identical with the Senate Joint Resolution passed by both Houses the year before and with the Senate bill introduced by Senator Holland, were considered by the House Subcommittee and Committee. The Committee chose the latter bill and with minor perfecting amendments reported it favorably to the House. Typical of the testimony at the hearings was the statement by Attorney General Brownell that:
'The States want, and we believe they are entitled to, all the development rights, you might say, in these submerged lands within their historic boundaries.'
The House Committee Report on the bill said:
'Title II confirms and establishes the rights and claims of the 48 States, asserted and exercised by them throughout our country's history, to the lands beneath navigable waters within State boundaries and the resources within such lands and waters.'
In explaining the bill to the members of the House, Congressman Willis of Louisiana, a member of the Committee and a supporter of the bill, said:
'First, it restores to the States complete title to the submerged lands up to the limit of their historic boundaries.'
And on the floor Congressman Wilson of Texas, also a Committee member and supporter of the bill, explained its purpose in the following exchange:
'Mr. WILSON of Texas. * * * Bear in mind that this is title II, the title that returns or restores this seaward boundary within the historical boundaries of the States to the States * * *.
'Mr. HALLECK. If we stick to the provisions of the bill, then we are just being consistent with respect to the title to the land within the historic boundaries?
'Mr. WILSON of Texas. That is true.'
The House bill, passed with this intention, was then sent to the Senate, which at that time was considering Senator Holland's bill, a virtually identical measure. After the Senate passed the Holland bill, with the two changes which the Court deems fundamental, Congressman Reed, Chairman of the House Judiciary Committee, which had reported the House bill, asked the members of the House to accede to their bill as amended by the Senate. He prefaced his remarks by saying:
'Mr. Speaker, I trust that 3 minutes will be sufficient for me to say all that I deem necessary about this resolution.'
He then proceeded in these words to tell the members of the House what had happened to their bill as adopted by the Senate:
'Titles I and II of the original bill, H.R. 4198, are now before us. There have been no substantial changes made by the Senate in these titles. They are practically the same as when passed by the House except in a few instances where a few words and phrases here and there have been changed or deleted for clarification.
'About the only thing that is substantially new in this bill is a reassertion by the Senate in section 9 which confirms the rights of the United States to the jurisdiction and control of the lands under the Continental Shelf outside of State boundaries.'
Relying on these assurances by Chairman Reed that there had been 'no substantial changes' made in the bill by the Senate, the House without further discussion of the portions of the bill here involved proceeded to adopt the Senate version, which after being signed by the President became the Submerged Lands Act of 1953.
This, then, is the legislative history of the Submerged Lands Act, both in the Senate and in the House, which, according to the Court, shows that the sponsors and supporters of the Act completely altered their intention of restoring to the States the submerged lands within their historic boundaries, and instead left the States with what the Court allows them today. I think that the statements and actions of the supporters of the bill show on the contrary that the intention of restoring all submerged lands under all waters within historic state boundaries was plainly and explicitly stated and understood by all from the beginning, and, despite attacks from opponents of the bill, never varied. Time and time again the Senators and Congressmen repeated that the bill had not been changed in any way to diminish the rights granted to the States in the bill as originally introduced-rights which, as the Court does not dispute, included the right to all submerged lands under all waters within historic state boundaries. I would follow the understanding of the authors and supporters of the bill, and I would take them at their word.
In light of this legislative history, of which I have set forth only a small part, I think that under the Submerged Lands Act California is entitled to all the submerged lands within its historic boundaries, and that it should be given an opportunity to try to prove in hearings before a Master where those historic boundaries were. The Court says that Congress left it up to this Court to expound the legal principles which shall determine California's claims, without any reference to the Submerged Lands Act's stated purpose to restore the mineral rights of the States in submerged lands within their historic boundaries. I think the Court is completely misreading the intentions of the authors and supporters of the Act. If there is anything clear in the legislative history, it is that Congress was not satisfied with the way in which this Court had decided the California case and did not approve of the considerations of external sovereignty used there in determining a domestic dispute over title. It seems to me the height of irony to hold that an Act passed expressly to escape the effect of this Court's opinion in this field is now construed as leaving us free to announce principles directly antithetic to the basic purpose of Congress of deciding that question for itself once and for all. True, the Congress left to the courts the exercise of their historic function to decide the factual question of where a State's historic boundaries, based on those approved when it was admitted to the Union, lie. But I think the Court errs in arguing repeatedly that by leaving it to the courts to decide the issues of fact in particular cases, Congress meant to leave it to this Court to determine the legal principles governing California's claim, and in particular to do so by adopting a formula of its own devising based on one used by the State Department in its handling of foreign affairs.
California has never been given an opportunity to appear at a hearing to determine where its boundaries were when it came into the Union. The 13-year-old report of the Master quite naturally considered this issue irrelevant since the Submerged Lands Act had not been passed at the time that report was made. Certainly it cannot be asserted that California's claim that its 1849 boundaries included these areas is frivolous. By the terms of its constitution approved by Congress when the State was admitted to the Union in 1850, and over the years, California appears to have claimed that its boundaries extended beyond its outlying islands and has claimed as inland waters within those boundaries all the bays, harbors and channels in question in this lawsuit. A statement in the original California Constitution, several official maps, including the one used at the California constitutional convention in 1849, and other evidence tend to support California's contention that it historically owned these bays and the channel between the islands and the mainland. Both state and federal court decisions have held as a matter of fact and law that some of the very bays in question here, which the Government argues are not inland waters in the international sense, were within the boundaries of the State and subject to its jurisdiction. Ocean Industries, Inc. v. Greene, 15 F.2d 862 (D.C.N.D.Cal.) (Monterey Bay); United States v. Carrillo, 13 F.Supp. 121 (D.C.S.D.Cal.) (San Pedro Bay); People v. Stralla, 14 Cal.2d 617, 96 P.2d 941 (Santa Monica Bay); Ocean Industries, Inc. v. Superior Court, 200 Cal. 235, 252 P. 722 (Monterey Bay). Indeed, in one of these cases, People v. Stralla, supra, the United States Attorney with the authorization of the Attorney General of the United States appeared as amicus curiae agreeing with the State's attorney that all of the bay in question there as here was within California's boundaries and subject to its exclusive territorial jurisdiction.
There may be evidence which tends to disprove the historic validity of California's claims. But what California has asked here is an opportunity to prove where its boundaries historically were, to use the test of ownership fixed by Congress in the Submerged Lands Act rather than the foreign-relations tests set up by the Special Master 13 years ago and approved by this Court today for the first time. I think that the legislative history of the Submerged Lands Act shows without question that the definitions in it were to be read as preserving to the maritime States their claims to submerged lands and waters within their historic boundaries, and that those who offered and supported the bill regarded California's claim to these bays, harbors and the channel out to its offshore islands as something the State would be allowed to try to prove. In litigation to determine the extent of the outer limits of the States' historic boundaries in the marginal sea in the Gulf of Mexico, Texas and Florida were allowed to prove their historic boundaries and won in United States v. Louisiana, 363 U.S. 1, 80 S.Ct. 961, 4 L.Ed.2d 1025, and United States v. Florida, 363 U.S. 121, 80 S.Ct. 961, 1026, 4 L.Ed.2d 1096 respectively. Louisiana, Mississippi, and Alabama based their claims in the Gulf of Mexico on historic boundaries and this Court decided against them on the facts in United States v. Louisiana, supra. All five of those States were given an opportunity to try to prove their historic boundaries, in order to determine the extent of the submerged lands to which they were entitled by the Submerged Lands Act. California has had no such opportunity. California set up as an affirmative defense in 1946 that its boundaries extended to the point it presently claims. We did not pass on this contention then, for we held that regardless of where the historic boundaries were, the United States had paramount rights in all its marginal sea. The Court today still leaves the question of the State's historic boundaries undecided, except insofar as relevant to international claims of the United States, and instead decides this case on the basis of standards of international law derived from the reasoning of the 1947 California case. Congress did not, I think, mean to readopt the standards of the California case, which the authors of the Submerged Lands Act so violently criticized, and to cut California off without any chance at all to establish ownership of these bays and channels by proving that they were within the State's historic boundaries. In order to carry out what I believe to be the congressional command in the Submerged Lands Act, I would refer the case to a Special Master to give California that chance.

## Notes

* ↑ See Appendix A.
* ↑ See Appendix B, which shows Monterey Bay, one of the bays in question. California claims that all the submerged land and waters landward of the line drawn across the headlands are inland waters within the historic coastline of the State, and that its historic boundary, the outer limit of its rights under the Submerged Lands Act, extends three miles seaward of that line. The United States claims that California owns only a belt of submerged lands within three miles of the low-water mark of the mainland shore.
* ↑ See Appendix C. California claims all the submerged land between the line drawn along the islands from the mainland, and a belt of marginal sea three miles to seaward of that line. The United States contends that California is entitled only to a belt within three miles of the mainland shore and three miles around each of the islands.
* ↑ One geographic (or marine or nautical) mile equals approximately 1.15 statute (or land or English) miles. One marine league equals three geographic miles or approximately 3.45 statute miles.
* ↑ See S.Rep. No. 133, 83d Cong., 1st Sess. (hereafter cited as Senate Report), 21.
* ↑ The Master was asked also to consider what criteria were proper for measuring the ordinary low-water mark on the shore.
* ↑ 67 Stat. 29, 43 U.S.C. §§ 1301-1315 (1958 ed.).
* ↑ § 3, 67 Stat. 29, 30, 43 U.S.C. § 1311 (1958 ed.).
* ↑ § 2(a)(2), 67 Stat. 29, 43 U.S.C. § 1301(a)(2) (1958 ed.).
* ↑ § 2(c), 67 Stat. 29, 43 U.S.C. § 1301(c) (1958 ed.).
* ↑ § 2(a)(2).
* ↑ § 2(b), 67 Stat. 29, 43 U.S.C. § 1301(b) (1958 ed.). (Emphasis supplied.)
* ↑ Ibid.
* ↑ The constitutional power of Congress to enact the Submerged Lands Act was upheld in Alabama v. Texas, 347 U.S. 272, 74 S.Ct. 481, 98 L.Ed. 689.
* ↑ S.J.Res. 20, 82d Cong., 2d Sess. For a summary of earlier proposed legislation dealing with submerged lands, see United States v. Louisiana, 363 U.S. 1, 6, n. 4, 80 S.Ct. 961, 966, 4 L.Ed.2d 1025.
* ↑ Message from the President, May 29, 1952, S.Doc. No. 139, 82d Cong., 2d Sess.
* ↑ Id., p. 2.
* ↑ S.J.Res. 13, 83d Cong., 1st Sess. A substantially identical bill, H.R. 2948, 83d Cong., 1st Sess., was introduced in the House.
* ↑ 67 Stat. 29. (Emphasis supplied.) The latter clause, dealing with the outer Continental Shelf, was added to the original bill in committee.
* ↑ Hearings before the Senate Committee on Interior and Insular Affairs on S.J.Res. 13 and Other Bills, 83d Cong., 1st Sess. (hereafter cited as Senate Hearings), 31-32. (Emphasis supplied.)
* ↑ Senate Hearings 49.
* ↑ Id., 34.
* ↑ Id., 512. Unlike the Truman Administration, the Eisenhower Administration supported legislation to grant mineral rights in submerged offshore lands to the adjacent States.
* ↑ Brief of the State of Texas, United States v. Louisiana, 363 U.S. 1, p. 50, 80 S.Ct. 961, p. 989.
* ↑ See Senate Report 14.
* ↑ Senate Hearings 1378 (Senator Cordon). Compare United States v. Louisiana, 363 U.S. 1, 33, 80 S.Ct. 961, 981.
* ↑ Id., 1053 (Deputy Legal Adviser Tate). Compare United States v. Louisiana, 363 U.S. 1, 30-32, 80 S.Ct. 961, 979-980.
* ↑ Id., 926. Attorney General Brownell suggested that a line be drawn on a map as part of the bill. He said that if the Committee tried 'to describe in words bays or other characteristics of the coast, unnecessary litigation will almost surely result.' Ibid.
* ↑ Senate Hearings 1304.
* ↑ Id., 1378.
* ↑ Id., 1383.
* ↑ Id., 1384.
* ↑ Ibid.
* ↑ Id., 1385.
* ↑ 99 Cong.Rec. 2746.
* ↑ Ibid.
* ↑ Id., 2634.
* ↑ Id., 2744. (Emphasis supplied.)
* ↑ Id., 2830.
* ↑ Senate Report 2. (Emphasis supplied.)
* ↑ Id., 18, U.S.Code Cong. and Adm.News 1953, p. 1493. (Emphasis supplied.)
* ↑ Senate Hearings 1211-1229.
* ↑ The Committee Report also reprinted the favorable report of a Senate Committee during a previous session of a bill which the Committee said was 'identical in substance with Senate Joint Resolution 13 as introduced.' Senate Report 49. That earlier report, S.Rep.No.1592, 80th Cong., 2d Sess., as quoted, criticised the California decision for creating great uncertainty as to what areas would be 'inland waters' within the reasoning of the opinion. Under the federal-external-sovereignty reasoning of the California case the Committee saw no clear answer to such questions as:
* ↑ Senate Report 18.
* ↑ See infra, p. 212. '(T)he sponsors understood this Court to have established, prior to the California decision, a rule of state ownership itself defined in terms of state territorial boundaries * * *.' United States v. Louisiana, 363 U.S. 1, 19-20, 80 S.Ct. 961, 973.
* ↑ Senate Hearings 1383 (Senator Cordon).
* ↑ 99 Cong.Rec. 2984. (Emphasis supplied.
* ↑ Senate Report 18, supra, n. 44.
* ↑ 99 Cong.Rec. 4115.
* ↑ Id., at 4114.
* ↑ Ibid.
* ↑ § 2(b), 67 Stat. 29, 43 U.S.C. § 1301(b) (1958 ed.).
* ↑ See, e.g., 99 Cong.Rec. 2917, 2975-2977, 3040, 3273, 3336 3337, 3381, 3549, 3552-3553, 3655, 3885-3886, 4085.
* ↑ Compare the Outer Continental Shelf Lands Act, 67 Stat. 462, 43 U.S.C. §§ 1331-1343 (1958) ed.), passed the same year, claiming for the United States 'jurisdiction, control, and power of disposition' of all submerged lands seaward of the area granted the States in the Submerged Lands Act.
* ↑ 99 Cong.Rec. 4115.
* ↑ Ibid.
* ↑ Ibid. (Emphasis supplied.)
* ↑ See, e.g., Senate Hearings 48-49.
* ↑ 99 Cong.Rec. 2746.
* ↑ Id., 3039.
* ↑ Id., 3051.
* ↑ Senate Hearings 48. (Emphasis supplied.)
* ↑ Id., 48-49. (Emphasis supplied.)
* ↑ Id., 50-51.
* ↑ 99 Cong.Rec. 4175. See also id., 4477, 4478 (remarks of Senator Daniel).
* ↑ Id., 4240. Senator Douglas said that his amendment was aimed at 'preventing coastal States from pushing their coastal boundaries out to a line along the outer shores of remote islands and claiming everything in between.' Id., 4242.
* ↑ Id., 4241.
* ↑ Id., 4242. An earlier attempt by Senator Douglas and others to strike from the bill reference to the historic boundaries of the States when they entered the Union, and substitute a limitation based on the marginal waters claimed by the Federal Government under international law, had also failed. See 99 Cong.Rec. 3957-3960, 4114. Senator Cordon had objected that the 'net result' of the amendment 'would be that an arbitrary 3-mile limit would be established, rather than to follow the philosophy of the joint resolution itself. The resolution provides that the limit be the statutory boundary with which a State entered the Union, or as such boundary may have been subsequently approved by an act of the Congress.' 99 Cong.Rec. 4106.
* ↑ Senate Report 2.
* ↑ Senate Hearings 1384 (Senator Daniel).
* ↑ Id., 1304 (Senator Cordon).
* ↑ 99 Cong.Rec. 4115 (Senator Holland).
* ↑ Id., 4361.
* ↑ H.R. 2948, 83d Cong., 1st Sess. See H.R.Rep. No. 215, 83d Cong., 1st Sess. (hereafter cited as House Report), 3.
* ↑ H.R. 4198, 83d Cong., 1st Sess.
* ↑ Hearings before Subcommittee No. 1, House Committee on the Judiciary on H.R. 2948 and Similar Bills, 83d Cong., 1st Sess., 219-220.
* ↑ House Report 14.
* ↑ 99 Cong.Rec. 2504.
* ↑ Id., 2567.
* ↑ Id., 4897.
* ↑ Ibid. (Emphasis supplied.)
* ↑ Article XII of the California Constitution of 1849, approved when the State was admitted to the Union (Act of Sept. 9, 1850, 9 Stat. 452), provides:
* ↑ Reproduced in part in Appendix D, infra.
* ↑ The brief of the United States Attorney, filed sub nom. People v. Adams, is reprinted as Appendix 3 to the Brief for the State of California in the Proceedings Before the Special Master, pp. 6-22.
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