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Part One the TIDELANDS LITIGATION INTRODUCTORY

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Part One the TIDELANDS LITIGATION INTRODUCTORY Part One THE TIDELANDS LITIGATION INTRODUCTORY Long before discovery of the New World the English common law recognized navigable waters as open to the public for fisheries and commerce. The sovereign held title to the beds of navigable waters, in trust for the public.1 Following the Magna Carta it was established that lands beneath navigable waters were so closely aligned with the concept of sovereignty that, unlike other public lands, they could not be disposed of by the Crown, but only by act of Parliament. This tradition followed the common law to our shores and was first applied in Martin v. Waddell, 41 U.S. (16 Pet.) 367 (1842). That controversy arose over title to submerged lands in Raritan Bay, a navigable water body in New Jersey. New Jersey began as a proprietary colony of England. The grantees were given title to the lands within its boundaries as well as all governmental powers. In 1702 the proprietors returned governmental authority to the Crown, while retaining title to the land. The American Revolution followed and the State of New Jersey succeeded to the Crown’s governmental authority. Thereafter the state patented oyster beds in Raritan Bay to Martin and the successors to the colonial proprietors made a similar grant to Waddell. An ejectment action was initiated by Waddell and wound up in the Supreme Court, the critical question being whether the beds of navigable water bodies were returned to the Crown as part of the governmental power or retained by the proprietors as part of the land. The Court adopted the former position, holding that title to lands under navigable waters was part of the jura regalia rather than the right to property. As such, title went back to the Crown in 1702 and was acquired by New Jersey after the Revolution. The state, and not the colonists’ successors, had authority to grant oyster leases. The identical issue arose just three years later in Mobile Bay. Alabama, which was not one of the 13 original states, nevertheless argued that it too entered the Union with title to submerged lands beneath navigable waters. The Supreme Court agreed. Referring back to Martin v. Waddell, it reasoned that if sovereignty included title to submerged lands in the original 13 states it must also in subsequently admitted states if they were to enter the Union on an “equal footing.” Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845). So the law was clear. Or was it? The Supreme Court had established that the individual states held title to the beds of certain navigable waters. But exactly 100 years later the federal government and the coastal states 1. The significance of this “public trust” to the sovereign’s management of submerged lands goes beyond the scope of this effort. It has, however, been exhaustively discussed in two recent works. Lazarus, Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine, 71 Iowa L.Rev. 631 (1986); Coastal States Organization, Inc., Putting the Public Trust Doctrine to Work, (2nd ed. 1997). 3 4 Shore and Sea Boundaries began what has now been more than a half century of litigation to CHAPTER 1 determine whether the states’ title extended to all navigable waters and how the boundaries of our navigable waters are to be determined.2 That NON--SUBMERGED LANDS ACT ISSUES litigation has created a vast body of law on the delimitation of maritime boundaries. Because the Supreme Court decided to apply international law The maritime boundary law upon which this volume focuses has to these domestic controversies, the rules that have evolved are equally generally come from Supreme Court decisions interpreting the Submerged applicable to domestic and international disputes. What is more, they are Lands Act, 43 U.S.C. 1301 et seq., a federal statute enacted in 1953 granting applicable to any maritime boundary controversy, not just those involving coastal states exclusive rights in the adjacent seas. However, to jump right title to submerged lands.3 into a discussion of those boundary principles would be to begin the story in the middle. Tidiness dictates that we first review litigation that led up to 2. These lawsuits have been referred to as the “submerged lands” or “tidelands” cases. “Tidelands” are technically those areas which are covered and uncovered by the daily tides, commonly thought of as “the the Act, and coastal state claims that lay on other foundations. beach.” The cases, of course, involve vastly greater areas of permanently submerged inland waters and territorial seas. Nevertheless, we follow tradition and use the terms interchangeably here. 3. The historic discussion of submerged lands rights liberally cribs (with permission) from an article by UNITED STATES V. CALIFORNIA: THE GENESIS George S. Swarth, “Offshore Submerged Lands, An Historical Synopsis” published in the Department of Justice’s Land and Natural Resources Division Journal of April 1968. Mr. Swarth hired and trained many of the attorneys who represented the United States in the submerged lands litigation. Any successes were largely due As just discussed, the Supreme Court ruled in 1842 that the original to his extraordinary legal abilities. Setbacks would probably have been avoided had he not retired at an early age. states acquired title to the submerged lands beneath their navigable waters at independence, Martin v. Waddell, 41 U.S. (16 Pet.) 367 (1842), and later held that subsequently admitted states enjoyed the same right under the equal footing doctrine. Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845). “Navigable waters,” as that term has come to be used in the United States, includes both inland waters and the maritime belt known as the territorial sea.4 That may be the reason that for many years all involved assumed that the rules of Martin and Pollard applied equally to offshore as well as inland navigable waters. The question of offshore application took on practical consequences when, in the early 1930s, it was learned that California’s oil fields extended offshore. Producers applied to the Department of the Interior for oil and gas leases or prospecting permits. Interior rejected the applications, explaining that the state and not the federal government owned the offshore lands.5 As further evidence of its assumption of state ownership, the federal government sought title from the states when it needed submerged lands in the territorial sea. United States v. California, 332 U.S. 19, 39 (1947). In the early 1940s the federal government began to reassess its legal position. Secretary of the Interior Ickes concluded that the United States 4. At the risk of severe oversimplification we can define American navigable waters as those which are “navigable in fact” or are “subject to the ebb and flow of the tide.” However, readers who are dealing with a navigability issue should consult the numerous authorities and extensive body of case law on that issue. 5. A congressional committee was provided with 21 such decisions of Interior. Senate Committee on Interior and Insular Affairs, S.J. Res. 20, 82nd Cong., 1st sess., p. 562. 5 6 Shore and Sea Boundaries Part One 7 might indeed have a claim to offshore submerged lands because previous admitted California to the Union. 9 Stat. 452.9 The state also relied heavily litigation had dealt only with inland waters and the shore between the high- on an equal footing argument. It assumed, from Martin v. Waddell, Pollard and low-tide lines. He suggested to President Roosevelt that the attorney v. Hagan, and their progeny, that the original states had entered the Union general bring an action to test the proposition.6 with territorial seas and that it must have done so too. In the fall of 1945 the attorney general filed an action challenging And that is where the issue was joined. Following California’s Amended California’s right to offshore submerged lands and the minerals that they Answer to the Complaint, the United States moved for judgment.10 Despite held.7 He went directly to the Supreme Court, asking that it declare the the fact that the parties relied upon extensive factual evidence regarding the United States to be “the owner in fee simple of, or possessed of paramount history of the law of the sea, they proceeded without evidentiary hearings, rights in and powers over, the lands, minerals and other things of value referring instead to published authorities in briefs and argument to the underlying the Pacific Ocean, lying seaward of the ordinary low water mark Court. on the coast of California and outside of the inland waters of the State, On June 23, 1947, the Court issued the first of its many “tidelands” extending seaward three nautical miles . .”8 opinions. Its first step was to test California’s assumption that the original The United States asserted title to the territorial sea and its bed in two states had entered the Union with territorial seas. We recall that Martin v. capacities “transcending those of a mere property owner.” 332 U.S. at 29. Waddell, which involved the bed of Raritan Bay, was decided in favor of New The first was described as “the right and responsibility to exercise whatever Jersey’s grantee because under English common law the sovereign held title power and dominion are necessary to protect this country against dangers to lands beneath “navigable waters” as an attribute of sovereignty, not to the security and tranquility of its people incident to the fact that the merely as a property owner. Because “navigable waters” included a 3-mile th th United States is located immediately adjacent to the ocean.” Id. In territorial sea in the 19 and 20 centuries, California (and most everyone addition, the government contended that “proper exercise of these else) assumed that the Martin v.
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