within the 3-league Gulfward boundary of Texas so long as this Court recognizes bat the area was removed from international domain when it became a part of the Republic of Texas. This was accomplished by the Republic of Texas an accordance with international law as recognized at the time by the countries zamed and by all other civilized nations. A contrary conclusion by the United States Supreme Court could well be used by other nations as on opening for claims not now asserted. The Court's holding in this regard is contrary to the official position of the United States as expressed by the Department of State and by Presidential proclamations. The official view of the United States at the League of Nations Conference at The Hague in 1930 was declared as follows: the sea bottom and subsoil covered by the territorial waters, including tish and minerals, are the property of the United States or the individual States where they border.”* The Continental Shelf proclamations and Executive orders of the President of the United States on September 28, 1945, do not regard the bed of the Continental Shelf as "international domain." On the contrary, the proclamation regards the land and resources below low tide "as an extension of the landmass of the coastal nation and thus naturally appurtenant to it" and wholly unaffected by the "character as high seas of the waters above the Continental Shelf and the right to their free and unimpeded navigation." The Executive order recognizes that ownership of the subsoil and sea bed is possibile either in the States or the United States." There is no authority in international law for the doctrine that property rights in the marginal sea must "be so subordinated to political rights as in substance to coalesce and unite in the national sovereign." On the contrary, international law in and since 1845, and all domestic law with which we are acquainted, recognizes taht political rights (imperium) are separate and severable from property rights (dominium) in the subsoil and minerals of the marginal belt the same as in any other soil and minerals within a nation's territory." The use of the soil may be more limited by governmental restrictions and regulations designed to protect public use, innocent passage, and navigation of the waters generally, but restrictions and regulations on property use have not been understood to vest ownership of the property in the governmental power which imposes the restrictions and regulations. There is no obligation or responsibility of a nation to other nations which requires it, rather than one of its political subdivisions, to own the soil and minerals within its territorial marginal belt, so long as it has governmental powers which guarantee innocent passage for ships of other states. The exercise of this responsibility and all other responsibilities connected with foreign and interstate commerce, defense, and international relations, is wholly separate from and does not depend upon the economic use and profits connected with the proporietorship of this subsoil and minerals any more than it does the subsoil and minerals beneath uplands, inland waters, and all areas of the Nation's territory. Such was the status of international law when the Republic of Texas and the United States entered into their agreement for the annexation of Texas. A transfer of marginal sea lands and minerals was not then implied in a transfer of national sovereignty. An express cession or other clear terms indicating a transfer of these proprietary rights was as necessary then as it would be now to effect such a result. As recently said by one of the coauthors of this memorandum: "In this day when world governments are being planned it is important that dominium is not confused with or inextricably tied to imperium * * "Assume that all of this Nation's powers of external sovereignty, international relations, and defense were transferred to a united nations of the world. This transfer of external sovereignty should not be held to carry with it any proprie tary rights theretofore acquired by the United States in the marginal belt of the original States and California in the absence of a cession of the property. Reply of the United States to the Bases of Discussion, March 16, 1929, League of Nations Conference for the Codification of International Law Bases of Discussion, C. 74. M. 39. 1929. V. p. 128. 3 C. F. R., 1945, Supp., Proc. 2667, 13 Dept. State Bull. 484, 485 (1945). 203 C. F. R., 1945. Supp., E. O. 9633. "It is believed that evidence of the practice of nations in 1845 will show that they treated original ownership of the subsoil and minerals of the marginal belt as within the same legal regime and property law as was applicable to other unsold and unappropriated lands within their boundaries. "Such is the situation which existed between Texas and the United States in 1845. Texas transferred its external sovereignty and certain enumerated properties which then pertained to its national defense. It ceded no other property. This is confirmed by a specific reservation of all 'vacant and unappropriated lands lying within its limits.' The subsoil and minerals remained in the State. just as the subsoil and minerals of the California belt would remain in the United States if it should transfer external sovereignty to a larger federation of States without ceding its rights of a proprietary nature beneath the marginal seal of California." 12 II Even if the Court believes that the lands and minerals in question would ordinarily pass to the United States with national political rights, this would not be true if the parties made an agreement to the contrary at the time of annexation. In this case there is an international agreement which contains a specific retention of lands lying within the limits of the Republic of Texas." It is of the same nature and has the same effect as a treaty or contract between independent nations. Therefore, rules of interpretation applicable to treaties, couventions, and other international agreements apply. The object of the interpretation of an agreement of this nature is to discover the understanding and intention of the parties at the time the contract or agreement was entered into. Texas has a specific allegation at page 15 of its first amended answer that: "By these acts on the part of the United States and the Republic of Texas, when construed, as they must be, in the light of the intention of the contracting parties, there was a binding agreement between the two independent sovereigns that upon annexation Texas would not cede to the United States any, but that the newly created State would retain all, of the lands, minerals, and other things lying beneath that part of the Gulf of Mexico within the original boundaries of the Republic, as well as the right to take, use, and develop the lands and minerals, subject only to the dominion and paramount powers of the United States as recognized in section 2, paragraph II above." If it be found, as alleged by Texas, that the parties intended by the terms of the agreement that the lands and minerals beneath the marginal belt were to be retained by Texas the same as other lands and minerals within its limits, no other provision of the agreement should be permitted to defeat this intention. Thus, a controlling issue in this case is the fact question of whether the parties intended the retention clause to be effective to the extent of the "limits" of Texas, as the terms imply, or only as far as low-water mark. The applicable rule in such cases is stated in the majority opinion as follows: "***If there were a dispute as to the meaning of documents and the answer was to be found in diplomatic correspondence, contemporary construction, usage, international law and the like, introduction of evidence and a full hearing would be essential." 1 14 If this case is not determined in favor of Texas on the law and terms of the documents alone, it should not be determined against Texas without allowing it the opportunity for introduction of evidence and a full hearing. It is our opinion that the answer to the dispute will be found in diplomatic correspondence, contemporary and subsequent construction, usage, and international law under which the parties were dealing in 1845. Insofar as international law is concerned, it was possible in 1845 for one nation to join another and retain the lands and minerals underlying the margial sea within its boundaries. This was and is possible also insofar as the domestic law of the United States is concerned. Counsel for the United States itself have not contended that ownership of the marginal belt lands and minerals is an inseparable attribute of national sovereignty. In the Government's brief in United States v. California (332 U. S. 19 (1947)) it was said: "We do not argue that the effective exercise of the foregoing powers (national defense, commerce, international relations) granted to the Federal Government 12 Roscoe Pound. "Rights Involved in United States v. Texas." pp. 10-11. Memoranda and Appendix, Brief for the State of Texas in Opposition to Motion for Judgment. 135 Stat. 797; 2 Gammel's Laws of Texas 1225, 1228. 14 70 S. Ct. at 922. 15 Solicitor General Perlman, in answer to a question by Mr. Justice Reed during the argument on the Motion for Leave to File the Complaint herein, said that if the United States owns the property, it could convey it to the States. His words: "Oh, yes, Congress could give whatever title it has, whatever rights it has, to the States.' (Argument, United States v. Texas, May 9, 1949, Reporter's Transcript, p. 6. by the Constitution would be impossible without ownership of the marginal sea" (p. 89). The Court, in that case, also recognized that ownership of this property is not a necessary incident of national sovereignty or essential to the exercise of Federal constitutional powers over the area, when it said that the power of ConCongress to deal with such property "is without limitation."" Implicit in the powers of the United States Congress to convey these lands and minerals to the States and good faith claimants and to admit new States is the power to admit Texas to the Union under an agreement that Texas retain the lands and minerals in the first instance. The Texas annexation agreement of March 1, 1845, whether classed as a treaty, act, or joint resolution, was passed by Congress and carried into effect by the President, who is charged with the conduct of international affairs. This agreement provides that: *said State, when admitted into the Union shall also retain all the vacant and unappropriated lands lying within its limits. * Thus as to Texas, Congress has acted with regard to the specific question before this Court. The Congress of Texas, and the people in convention assembled, agreed to annexation with this as one of the "conditions" and "guarantees." There is no evidence in the terms of the agreement that the parties meant to retain only those lands lying above low tide on the coast. The retention clause says "lands lying within its limits." Neither is there any evidence in the terms that the parties intended the lands and minerals of the 3-league marginal belt to "coalesce and unite" with the political powers of national sovereignty transferred to the United States. Under the domestic law of the Republic of Texas, these lands and minerals involved rights of property, severable from sovereignty, but originally held by the sovereign in trust for the people. The constitution of the new State, adopted in accordance with the terms of the annexation agreement and as a part of the annexation procedure, indicates that these property rights were to remain as they were under the laws of the Republic of Texas. It included this provision: "The rights of property * * * which have been acquired under the constitution and laws of the Republic of Texas *** shall remain precisely in the situation which they were before the adoption of this constitution." 18 This constitution was laid before the United States Congress and was approved by that body in the final act of admission as being “in conformity to the provisions" of the annexation resolution (9 Stat. 108). On the basis of these documents it would appear that Texas retained the lands and minerals in question by the specific agreement and approval of the United States Congress. The only doubt cast on the meaning of the documents is the contention by the United States that the “retention clause" was not intended to include lands and minerals below low tide and the statement in the majority opinion that an “equal footing" clause in the annexation resolution of March 1, 1845, effected a relinquishment of the property to the United States. The "equal footing" clause in the March 1 resolution for annexation of Texas was contained in section 3, which was an alternative proposal never submitted to, or considered or accepted by, Texas. Sections 1 and 2 contained the "proposals. conditions, and guarantees" submitted by the President of the United States and accepted by the Congress and the people of Texas. These sections provided that Texas retain its lands and pay its own debts. It is significant that they contained no “equal footing" clause. Only the unilateral final act of admission referred to “equal footing,” but it also recited that admission was granted in accordance with the "proposals, conditions, and guarantees contained in the first and second sections" of the March 1, 1845, annexation resolution. It could not have the effect of taking from Texas lands and minerals which had been specifically retained by the "proposals, conditions, and guarantees" theretofore agreed upon. Texas pleads that it has evidence which will show that no such meaning or effect was intended by the contracting parties. 19 United States v. California (332 U. S. 19, 27). Also in stating that valuable improvements made in good faith under State titles are not ground for a different judgment, the Court added: "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. Texas (162 U. S. 1, 89, 90); Lee Wilson & Co. v. United States (245 U. S. 24. 32)," Id. at 400. 175 Stat. 797; 2 Gammel's Laws of Texas 1225, 1228. The annexation resolutions of the two nations are set out at length on pp. 58-62 of the Appendix to Brief for the State of Texas in Opposition to Motion for Judgment. 18 Art. VII, sec. 20, Constitution of 1845; 2 Gammel's Laws of Texas 1293-94. If, upon rehearing, judgment is not rendered in favor of the State of Texas on the basis of the terms contained in sections 1 and 2 of the annexation agreement and its failure to cede the lands and minerals, it would indicate that some doubt still exists in the minds of the majority as to the meaning of the annexation agreement and the intention of the parties. In that event, Texas should be entitled to an opportunity to present its evidence. This was requested by Texas in its motion for the appointment of a master and in its brief in opposition to the motion of plaintiff for judgment on the pleadings. We submit that the Court should reconsider its ruling denying Texas this opportunity to develop evidence as to the intention of the parties to this international agreement. Evidence which can and will be submitted as to the customs, usages, and practices of nations in and since 1845, the nature of the sovereignty over and ownership of marginal-belt lands and minerals in international law, and all other relative interpretative matters, will support the contentions of the State of Texas as to the law and facts applicable to this case. Respectfully submitted. JOSEPH WALTER BINGHAM. MANLEY O. HUDSON. CHARLES CHENEY HYDE. HANS KELSEN. WILLIAM E. MASTERSON. ROSCOE POUND. STEFAN A. RIESENFELD. July 14, 1950. CONCURRENCE Time has not permitted me to assist in the preparation of this memorandum, but I am fully in accord with the position taken by the State of Texas in its brief and argument in this case. I wholeheartedly concur in the opinion that there should be a rehearing, and a judgment for Texas or at least a trial on the evidence. July 15, 1950. WILLIAM W. BISHOP, Jr. UNITED STATES DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, Re: Application for oil- and gas-prospecting permit rejected subject to the right of appeal. Mr. LEONARD J. BENCKENSTEIN, Beaumont, Texas. MY DEAR SIR: I have your application for a permit under the act of February 25, 1920 (41 Stat. 437), covering certain described land located off the coast of the State of Texas. This application was filed in this office on April 1, 1925; and the fees thereon were tendered, but were refused. It appears to cover a tract of land, described by metes and bounds, containing approximately 400 acres situated in the Gulf of Mexico, south of the junction of Galveston and Chambers Counties, Tex. While the exact location of the land cannot be ascertained from the records of this office, it appears to be more or less under tidal waters. The Oil and Gas Leasing Act, under which your application is filed, is entitled "An act to promote the mining of coal, phosphate, oil, oil shale, gas, and sodium, on the public domain." Section 13 thereof authorizes the issuance of permits to prospect for deposits of oil and gas, in land where such deposits belong to the United States. The title of the act refers solely to the "public domain," and nowhere in the whole act is there any mention made of lands under tidal waters. The words "public domain" are synonymous and equivalent in meaning to the words "public lands," and these terms have acquired a settled meaning in the legislation of this country (Barker v. Harvey (181 U. S., 481, 490)). The words "public lands" are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws (Newhall v. Sanger (92 U. S., 761, 763)). In order, therefore, that deposits of oil or gas be subject to appropriation under the Oil and Gas Leasing Act, the lands containing such deposits must be, or have been, public lands, subject to appropriation, under the general laws respecting the disposal of the public domain; it is limited in its application to those lands which are, or were subject to disposal under the general public-land laws of the United States. In Mann v. Tacoma Land Company (153 U. S., 273, 284), the court said: "It is settled that the general legislation of Congress in respect to public lands does not extend to tidelands." Congress has never assumed to enact legislation for the disposal of lands under tidal waters. It was said, in Barney v. Keokuk (94 U. S., 324, 338): "The United States has wisely abstained from extending (if it could extend) its surveys and grants beyond the limits of high water." To the same effect see also Baer v. Moran Brothers Company (153 U. S., 287). From the foregoing, it is clear that the land for which you desire an oil and gas prospecting permit, under the act of February 25, 1920, supra, is not subject to such appropriation. Accordingly, your application is hereby rejected, subject to the right of appeal to the Secretary of the Interior, within 15 days from notice; in default of which the application will be finally rejected and the case closed without further notice to you. In view of the action herein taken, the bond, which you stand ready to furnish, will not be required. For information concerning the ownership of lands located within the State of Texas and under tidal waters adjacent to the State your attention is invited to the following: The Republic of Texas was admitted as a State on December 29, 1845, upon "guaranty" made by the United States that Texas "shall also retain all the vacant and unappropriated lands lying within its limits" (5 Stat., 797 and 9 Stat., 108). See also B. F. Nysewander (47 L. D., 372). Texas has, for more than three-quarters of a century, governed and disposed of its own public lands, with the consent and approval of the United States. Moreover, the Supreme Court of Texas has said: "The legislature of the State has the power to dispose of the unappropriated lands within the State" (Victoria v. Victoria County (100 Texas, 438)). Aside from the question of the ownership, by the State of Texas, of all vacant and unappropriated lands lying within its borders by virtue of the conditions under which it was admitted into the Union, all lands, under tidal waters and below the line of ordinary high tide belong to the State by virtue of its sovereignty (Pollard v. Hagan (3. How. 212, 161)); Knight v. U. S. Land Association (142 U. S., 161, 183)). The State is the owner of all land below the line of ordinary high tide extending seaward coextensive with its municipal dominion; that is, in landlocked bays, from headland to headland, and from the line of ordinary high tide on the shore of the open ocean seaward a distance of 3 miles, or a marine league. This ownership is, however, subject to the public right of navigation which will presently be considered. Title to the soil under tidal waters between the line of ordinary high tide and the line marking the extent of the State's municipal dominion over the open ocean being in the State, the State might dispose of it, provided such disposal and the purposes for which it is made might be effected without detriment to the public right of navigation. Section 10 of the act of March 3, 1899 (30 Stat., 1121), requires that permission from the Secretary of War be obtained prior to the erection of any obstruction to the navigable capacity of any of the waters of the United States. Such permission, however, will confer no right save immunity from prosecution by the Federal Government for the offense of obstructing the navigable capacity of such waters. Very respectfully, WILLIAM SPRY, Commissioner. APPLICATION for Oil and GAS PERMIT ON SUBMERGED LAND IN THE GULF of MEXICO, GALVESTON COUNTY, TEX. To the Honorable Commissioner of the General Land Office, Washington, D. C. SIB: Comes now Leonard J. Benckenstein, a resident citizen of Beaumont, Tex., who being duly sworn deposes and says that he is a native-born citizen of the United States and that he hereby applies for an oil and gas prospecting |