レ

California claims that it owns the resources of the soil under the three-mile marginal belt as an incident to those elements of sovereignty which it exercises in that water area. The state points out that its original Constitution, adopted

in 1849 before that state was admitted to he Union, included within the state's boundary the water area extending three English miles from the shore. Cal. Const. (1849) Art. XII; that the Enabling Act which admitted California to the Union ratified the territorial boundary thus defined; and that California was admitted "on an equal footing with the original States in all respects whatever," 9 Stat. 452. With these premises admitted, California contends that its ownership follows from the rule originally announced in Pollard's Lessee v. Hagen, 3 How. 212; see also Martin v. Waddell, 16 Pet. 367, 410. In the Pollard case it was held, in effect, that the original states owned in trust for their people the navigable tidewaters between high and low water mark within each state's boundaries, and the soil under them, as an inseparable attribute of state sovereignty. Consequently it was decided that Alabama, because admitted into the Union on "an equal footing" with the other states, had thereby become the owner of the tidelands within its boundaries. Thus the title of Alabama's tidelands grantee was sustained as valid against that of a claimant holding under a United States grant made subsequent to Alabama's admission as a state.

The Government does not deny that under the Pollard rule, as explained in later cases, California has a qualified ownership of lands under inland navigable water such as rivers, harbors, and even tidelands down to the low water mark. It does question the validity of the rationale in the Pollard case that ownership of such water areas, any more than ownership of uplands, is a necessary incident of the state sovereignty contemplated by the "equal footing" clause. Cf. United States v. Oregon, 295 U. S. 1, 14. For this reason, among others, it argues that the Pollard rule should not be extended so as to apply to lands under the ocean. It stresses that the thirteen original colonies did not own the marginal belt; that the Federal Government did not seriously assert its increasingly greater rights in this area until after the formation of the Union; that it has not bestowed any of these rights upon the states, but has retained them as appurte nances of national sovereignty. And the Government insists that no previous case in this Court has involved or decided conflicting claims of a state and the Federal Government to the three-mile belt in a way which requires our extension of the Pollard inland water rule to the ocean area.

It would unduly prolong our opinion to discuss in detail the multitude of references to which the able briefs of the parties have cited us with reference to the evolution of powers over marginal seas exercised by adjacent countries. From all the wealth of material supplied, however, we cannot say that the thirteen original colonies separately acquired ownership to the three-mile belt or the soil under it, even if they did acquire elements of the sovereignty of the English Crown by their resolution against it. Cf. United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 316.

10

At the time this country won its independence from England there was no settled international custom or understanding among nations that each nation owned a three-mile water belt along its borders. Some countries, notably England, Spain, and Portugal, had, from time to time, made sweeping claims to a right of dominion over wae expanses of ocean. And controversies had arisen among nations about rights to fish in prescribed areas." But when this

8 See e. g., Manchester v. Massachusetts, 139 U. S. 240; Louisiana v. Mississippi, 202 U. S. 1; The Abby Dodge, 223 U. S. 166. See also United States v. Mission Rock Co.. 189 U. S. 391: Borax, Ltd. v. Los Angeles, 296 U. S. 10.

Although the Pollard case has thus been generally approved many times, the case of Shively v. Bowlby, 152 U. S. 1, 47-48, held contrary to implications of the Pollard opinion, that the United States could lawfully dispose of tidelands while holding a future state's land "in trust" as a territory.

9 See United States v. Commodore Park, 324 U. S. 386, 390, 391; Scranton v. Wheeler, 179 U. S. 141, 159, 160, 163; Stockton v. Baltimore & N. Y. R. Co., 32 F. 9, 20; see also United States v. Chandler-Dunbar Co., 229 U. S. 53.

10 A representative collection of official documents and scholarship on the subject is Crocker. The Extent of the Marginal Sea (1919). See also I. Azuni, Maritime Law of Europe (published 1806) c. II: Fulton, Sovereignty of the Sea (1911): Masterson, Jurisdietion in Marginal Seas (1929); Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927); Fraser, The Extent and Delimitation of Territorial Waters, 11 Corn. L. Q. 455 (1926); Ireland, Marginal Seas Around the States, 2 La. L. Rev. 252. 436 (1940); Comment, Conflicting State and Federal Claims of Title in Submerged Lands of the Continental Shelf, 56 Yale L. J. 356 (1947).

11 See, e. g., Fulton, op. cit. supra, 3-19, 144-145; Jessup, op. cit. supra, 4.

nation was formed, the idea of a three-mile belt over which a littoral nation could exercise rights of ownership was but a nebulous suggestion." Neither the English charters granted to this nation's settlers," nor the treaty of peace with England," nor any other document to which we have been referred, showed a purpose to set apart a three-mile ocean belt for colonial or state ownership." Those who settled this country were interested in lands upon which to live, and waters upon which to fish and sail. There is no substantial support in history for the idea that they wanted or claimed a right to block off the ocean's bottom for private ownership and use in the extraction of its wealth.

It did happen that shortly after we became a nation our statesmen became interested in establishing national dominion over a definite marginal zone to protect our neutrality." Largely as a result of their efforts, the idea of a definite three-mile belt in which an adjacent nation can, if it chooses, exercise broad, if not complete dominion, has apparently at last been generally accepted throughout the world," although as late as 1876 there was still considerable doubt in England about its scope and even its existence. See The Queen v. Keyn, 2 Ex. D. 63. That the political agencies of this nation both claim and exercise broad dominion and control over our three-mile marginal belt is now a settled fact. Cunard Steamship C'o, v. Mellon, 262 U. S. 100, 122-124." And this assertion of national dominion over the three-mile belt is binding upon this Court. See Jones v. United States, 187 U. S. 202, 212-214; In re Cooper, 143 U. S. 472, 502 503.

Not only has acquisition, as it were, of the three-mile belt been accomplished by the National Government but protection and control of it has been and is a function of national external sovereignty. See Jones v. United States, 137 U. S. 202; In re Cooper, 143 U. S. 472, 502. The belief that local interests are so predominant as constitutionally to require state dominion over lands under its innd-locked navigable waters finds some argument for its support. But such can hardly be said in favor of state control over any part of the ocean or the ocean's bottom. This country, throughout its existence has stood for freedom of the seas, a principle whose breach has precipitated wars among nations. The country's adoption of the three-mile belt is by no means incompatible with its traditional insistence upon freedom of the sea, at least so long as the national Government's power to exercise control consistently with whatever international undertakings or commitments it may see fit to assume in the national interest is unencumbered. See Hincs v. Davidowitz, 312 U. S. 52, 62 64; McCulloch v. Mary

"Fulton, op cit. supra, 21, says in fact that "mainly through the action and practice of the United States of America and Great Britain since the end of the eighteenth century, the distance of three miles from shore was more or less formally adopted by most maritime states as ... more definitely fixing the limits of their jurisdiction and rights for various purposes and, in particular, for exclusive fishery."

Collected in Thorpe, Federal and State Constitutions (1909). "Treaty of 1783, 8 Stat. 80.

The Continental Congress did, for example, authorize capture of neutral and even American ships carrying British goods. "if found within three leagues [about nine miles] of the coasts. Journ. of Cong., 185, 186, 187 (1781). Cf. Declaration of Panama of 1939, 1 Dept. of State. Bull, 321 (1939), claiming the right of the American Republics to be free from a hostile act in a zone 300 miles from the American coasts.

3 Secretary of State Jefferson in a note to the British minister in 1793 pointed to the nebulous character of a nation's assertions of territorial rights in the marginal belt, and put forward the first official American claim for a three-mile zone which has since won general international acceptance. Reprinted in H. Ex. Doc. No. 324, 42d Cong.. 2d Sess. (1872) 553 554. See also Secretary Jefferson's note to the French Minister, Genet, reprinted American State Papers, I Foreign Relations (1833), 183, 184; Act of June 5, 1794, 1 Stat. 381; 1 Kent, Commentaries. 14th Ed., 33 40,

See Jessup, op. cit, supra, 66; Research in International Law, 23 A. J. I. L. 249, 250 (Sree. Supp. 1929).

15 See also Church v. Hubbart, 2 Cranch 187. 234. Congressional assertion of a territorial zone in the sea appears in statutes regulating seals, fishing, pollution of waters, etc. 36 Stat. 326, 328; 43 Stat. 604, 605; 37 Stat. 499, 501. Under the National Prohibition Act. territory including "a marginal belt of the sea extending from low water mark outward a marine league, or 3 geographical miles" constituting the "territorial waters of the United States" was regulated. See U. S Treas. Reg. 2. § 2201 (1927), reprinted in Research in International Law, supra, 250: 41 Stat. 305. Anti-smuggling treaties in which foreign nations agreed to permit the United States to pursue smugglers beyond the three-mile limit contained express stipulations that generally the three mile limit constitutes "the proper limits of territorial waters." See ... 43 Stat. 1761 (Pt. 2).

There are innumerable executive declarations to the world of our national claims to the three-mile belt, and more recently to the whole continental shelf. For references to diplomatic correspondence making these assertions, see 1 Moore, International Law Digest (1906), 705. 706, 707: 1 Wharton, Digest of International Law (1886), 100. See also Hughes, Recent Questions and Negotiations, 18 A. J. I. L. 229 (1924).

The latest and broadest claim is President Truman's recent proclamation that the United States "regards the natural resources of the subsoll and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertain ing to the United States, subject to its jurisdiction and control...." Exec. Proc. 2667, Sept. 28, 1945, 10 F. R. 12303.

20045 53--76

land, supra. The three-mile rule is but a recognition of the necessity that a government next to the sea must be able to protect itself from dangers incident to its location. It must have powers of dominion and regulation in the interest of its revenues, its health, and the security of its people from wars raged on or too near its coasts. And insofar as the nation asserts its rights under international law, whatever of value may be discovered in the seas next to its shores and within its protective belt, will most naturally be appropriated for its use. But whatever any nation does in the open sea, which detracts from its common usefulness to nations, or which another nation may charge detracts from it," is a question for consideration among nations as such, and not their separate governmental units. What this Government does, or even what the states do, anywhere in the ocean, is a subject upon which the nation may enter into and assume treaty or similar international obligations. See United States v. Belmont, 301 U. S. 324, 331-332. The very oil about which the state and nation here contend might well become the subject of international dispute and settlement.

The ocean, even its three-mile belt, is thus of vital consequence to the nation in its desire to engage in commerce and to live in peace with the world; it also becomes of crucial importance should it ever again become impossible to preserve that peace. And as peace and world commerce are the paramount responsibilities of the nation, rather than an individual, state, so, if wars come, they must be fought by the nation. See Chy Lung v. Freeman, 92 U. S. 275, 279. The state is not equipped in our constitutional system with the powers or the facilities for exercising the responsibilities which would be concomitant with the dominion which it seeks. Conceding that the state has been authorized to exercise local police power functions in the part of the marginal belt within its declared boundaries, these do not detract from the Federal Government's paramount rights in and power over this area. Consequently, we are not persuaded to transplant the Pollard rule of ownership as an incident of state sovereignty in relation to inland waters out into the soil beneath the ocean, so much more a matter of national concern. If this rationale of the Pollard case is a valid basis for a conclusion that paramount rights run to the states in inland waters to the shoreward of the low water mark, the same rationale leads to the conclusion that national interests, responsibilities, and therefore national rights are paramount in waters lying to the seaward in the three-mile belt. Cf. United States v. Curtiss-Wright Corp., 299 U. S. 304, 316; United States v. Causby. 328 U. S. 256.

20

As previously stated, this Court has followed and reasserted the basic doctrine of the Pollard case many times. And in doing so it has used language strong enough to indicate that the Court then believed that states not only owned tidelands and soil under navigable inland waters, but also owned soils under all navigable waters within their territorial jurisdiction, whether inland or not. All of these statements were, however, merely paraphrases or offshoots of the Pollard inland-water rule, and were used, not as enunciation of a new ocean rule, but in explanation of the old inland-water principle. Notwithstanding the fact that none of these cases either involved or decided the state-federal conflict presented here, we are urged to say that the language used and repeated in those cases forecloses the Government from the right to have this Court decide that question now that it is squarely presented for the first time.

There are three such cases whose language probably lends more weight to California's argument than any others. The first is Manchester v. Massachusetts, 139 U. S. 240. That case involved only the power of Massachusetts to regulate fishing. Moreover, the illegal fishing charged was in Buzzards Bay, found to be within Massachusetts territory, and no question whatever was raised or decided as to title or paramount rights in the open sea. And the Court specifically laid to one side any question as to the rights of the Federal Government to regulate fishing there. The second case, Louisiana v. Mississippi, 202 U. S. 1, 52, uses language about "the sway of the riparian States" over "maritime belts." That was a case involving the boundary between Louisiana and Mississippi. It did not involve any dispute between the federal and state governments. And the Court there specifically laid aside questions concerning "the breadth of the maritime belt or the extent of the sway of the riparian States. * Id. at 52. The third case is The Abby Dodge, 223 U. S. 166. That was an action against a ship landing sponges at a Florida port in violation of an Act of Congress, 34 Stat. 313, which made it unlawful to "land" sponges taken under cer

19 See Lord v. Steamship Co., 102 U. S. 541, 544.

20 See Utah Power & Light Co. v. United States, 243 U. S. 389, 404; cf. The Abby Dodge, 223 U. S. 166, with Skiriotes v. Florida, 313 U. 8. 69, 74–75.

tain conditions from the waters of the Gulf of Mexico. This Court construed the statute's prohibition as applying only to sponges outside the state's "territorial limits" in the Gulf. It thus narrowed the scope of the statute because of a belief that the United States was without power to regulate the Florida traffic in sponges obtained from within Florida's territorial limits, presumably the three-mile belt. But the opinion in that case was concerned with the state's power to regulate and conserve within its territorial waters, not with its exercise of the right to use and deplete resources which might be of national and international importance. And there was no argument there, nor did this Court decide, whether the Federal Government owned or had paramount rights in the soil under the Gulf waters. That this question remained undecided is evidenced by Skiriotes v. Florida, 313 U. S. 69, 75, where we have occasion to speak of Florida's power over sponge-fishing in its territorial waters. Through Mr. Chief Justice Hughes we said: "It is also clear that Florida has in interest in the proper maintenance of the sponge fishery and that the [state] statute so far as applied to conduct within the territorial waters of Florida, in the absence of conflicting federal legislation, is within the police power of the State." [Emphasis supplied.]

None of the foregoing cases, nor others which we have decided, are sufficient to require us to extend the Pollard inland-water rule so as to declare that California owns or has paramount rights in or power over the three-mile belt under the ocean. The question of who owned the bed of the sea only became of great potential importance at the beginning of this century when oil was discovered there." As a consequence of this discovery, California passed an Act in 1921 authorizing the granting of permits to California residents to prospect for oil and gas on blocks of land off its coast under the ocean. Cal. Stats. 1921, c. 303. This state statute, and others which followed it, together with the leasing practices under them, have precipitated this extremely important controversy, and pointedly raised this state-federal conflict for the first time. Now that the question is here, we decide for the reasons we have stated that California is not the owner of the three-mile marginal belt along its coast, and that the Federal Government rather than the state has paramount rights in and power over that belt, an incident to which is full dominion over the resources of the soil under that water area, including oil.

Fourth. Nor can we agree with California that the Federal Government's paramount rights have been lost by reason of the conduct of its agents. The state sets up such a defense, arguing that by this conduct the Government is barred from enforcing its rights by reason of principles similiar to laches, estoppel, adverse possession. It would serve no useful purpose to recite the incidents in detail upon which the state relies for these defenses. Some of them are undoubtedly consistent with a belief on the part of some Government agents at the time that California owned all, or at least a part of the three-mile belt. This belief was indicated in the substantial number of instances in which the Government acquired title from the states to lands located in the belt; some decisions of the Department of Interior have denied applications for federal oil and gas leases in the California coastal belt on the ground that California owned the lands. Outside of court decisions following the Pollard rule, the foregoing are the types of conduct most nearly indicative of waiver upon which the state relies to show that the Government has lost its paramount rights in the belt. Assuming that Government agents could by conduct, short of a congressional surrender of title or interest, preclude the Government from asserting its legal rights, we cannot say it has done so here. As a matter of fact, the record plainly demonstrates that until the California oil issue began to be pressed in the thirties, neither the states nor the Government had reason to focus attention on the question of which of them owned or had paramount rights in or power over the three-mile belt. And even assuming that Government agencies have been negligent in failing to recognize or assert the claims of the Government at an earlier date, the great interests of the Government in this ocean area are not to be forfeited as a result. The Government, which holds its interests here as elsewhere in trust for all the people, is not to be deprived of those interests by the ordinary court rules designed particularly for private disputes over individually owned pieces of property; and officers who have no authority at all to dispose of Government property cannot by their conduct cause the Government

Bull. No. 321, Dept. of Interior, Geological Survey.

to lose its valuable rights by their acquiescence, laches, or failure to act. We have not overlooked California's argument, buttressed by earnest briefs on behalf of other states, that improvements have been made along and near the shores at great expense to public and private agencies. And we note the Government's suggestion that the aggregate value of all these improvements are small in comparison with the tremendous value of the entire three-mile belt here in controversy. But, however this may be, we are faced with the issue as to whether state or nation has paramount rights in and power over this ocean belt, and that great national question is not dependent upon what expenses may have been incurred upon mistaken assumptions. Furthermore, we cannot know how many of these improvements are within and how many without the boundary of the marginal sea which can later be accurately defined. But beyond all this we cannot and do not assume that Congress, which has constitutional control over Government property, will execute its powers in such way as to bring about injustices to states, their subdivisions, or persons acting pursuant to their permission. See United States v. Teras, 162 U. S. 1, 89, 90; Lee Wilson & Co. v. United States, 245 U. S. 24, 32.

We hold that the United States is entitled to the relief prayed for. The parties, or either of them, may, before September 15, 1947, submit the form of decree to carry this opinion into effect, failing which the Court will prepare and enter an appropriate decree at the next term of Court.

It is so ordered.

Mr. JUSTICE JACKSON took no part in the consideration or decision of this case. Mr. JUSTICE REED, dissenting.

In my view the controversy brought before this Court by the complaint of the United States against California seeks a judgment between State and Nation as to the ownership of the land underlying the Pacific Ocean, seaward of the ordinary low-water mark, on the coast of California and within the three-mile limit. The ownership of that land carries with it, it seems to me, the ownershi of any minerals or other valuables in the soil, as well as the right to extract them. The determination as to the ownership of the land in controversy turns for me on the fact as to owenrship in the original thirteen states of similar lands prior to the formation of the Union. If the original states owned the bed of the sea, adjacent to their coasts, to the three-mile limit, then I think California has the same title or ownership to the lands adajacent to her coast. The original states were sovereignties in their own right, possessed of so much of the land underneath the adjacent seas as was generally recognized to be under their jurisdiction. The scope of their jurisdiction and the boundaries of their lands were coterminous. Any part of that territory which had not passed from their ownership by existing valid grants were and remained public lands of the respective states. California, as is customary, was admitted into the Union “on an equal footing with the original States in all respects whatever." 9 Stat. 452. By §3 of the Act of Admission, the public lands within its borders were reserved for disposition by the United States. "Public lands" was there used in its usual sense of lands subject to sale under general laws. As was the rule, title to lands under navigable waters vested in California as it had done in all other states. Pollard v. Hagan, 3 How. 212; Barney v. Keokuk, 94 U. S. 324, 338; Shively v. Bowlby, 152 U. S. 1, 49; Mann v. Tacoma Land Co., 153 U. S. 273, 284; Borax Consolidated, Ltd. v. Los Angeles, 296 U. S. 10, 17.

The authorities cited in the Court's opinion lead me to the conclusion that the original states owned the lands under the seas to the three-mile limit. There were, of course, as is shown by the citations, variations in the claims of sovereignty, jurisdiction or ownership among the nations of the world. As early as 1793, Jefferson as Secretary of State, in a communication to the British Minister, said that the territorial protection of the United States would be extended "three geographical miles" and added:

"This distance can admit of no opposition, as it is recognized by treaties between some of the powers with whom we are connected in commerce and navigation, and is as little, or less, than is claimed by any of them on their own coasts." H. Ex. Doc. No. 324, 42d Cong., 2d Sess., pp. 553–54.

If the original states did claim, as I think they did, sovereignty and ownership to the three-mile limit, California has the same rights in the lands bordering its littoral.

United States v. San Francisco, 310 U. S. 16, 31 32; Utah v. United States, 284 I. S. 534, 545, 546; Lee Wilson & Co. v. United States, 245 U. 8, 24, 32; Utah Power & Light Co. v. United States. 243 U. S. 389, 409. See also Sec'y of State for India v. Chelikani Rama Rao, L. R. 43 Indian App. 192, 204 (1916).