UNITED STATES v. LOUISIANA ET AL.
No. 9, Orig.
Supreme Court of the United States
Argued October 9, 1967. - Decided December 4, 1967.
389 U.S. 155
Victor A. Sachse, Special Assistant Attorney General of Louisiana, argued the cause for defendant State of Louisiana. With him on the brief were Jack P. F. Gremillion, Attorney General, John L. Madden, Assistant Attorney General, and Paul M. Hebert, Thomas W. Leigh, W. Scott Wilkinson, J. B. Miller, Oliver P. Stockwell, J. J. Davidson and Frederick W. Ellis, Special Assistant Attorneys General.
Crawford C. Martin, Attorney General of Texas, and Houghton Brownlee, Jr., Assistant Attorney General,
MR. JUSTICE BLACK delivered the opinion of the Court.
In United States v. California (the first California case), 332 U. S. 19 (1947), we held that the States did not own the submerged lands off their coastlines and that the United States had paramount rights in these lands. Some States violently objected to this decision claiming that they had historically owned at least out to a distance of three geographical miles from their coastlines; others asserted a historical claim out to three marine leagues from their coastlines. Responding to these objections, Congress in 1953 passed the
Texas relies heavily on this Court’s prior decision in the second California case, United States v. California, 381 U. S. 139 (1965). Our opinion there, however, dealt, not with the conditional statutory grant we have here, but with the other unconditional grant—the congressional creation of a new and standard three-mile seaward boundary for all coastal States. While some States in the past had claimed three-mile seaward boundaries—a claim explicitly rejected by this Court in the first California case, supra—Congress made it clear by the following wording in
Article 8 of this Convention makes the following provision for artificially constructed extensions into the sea: “For the purpose of delimiting the territorial sea, the outermost permanent harbour works which form an integral part of the harbour system shall be regarded as forming part of the coast.” [1964] 15 U. S. T. (Pt. 2) 1607, 1609. Thus, it is clear that in the case of the three-mile unconditional grant artificial jetties are a part of the coastline for measurement purposes, and if Texas were claiming under the standard three-mile grant, its argument regarding the jetties would be far more persuasive.
Texas has not claimed the standard three-mile grant, however, but has asserted ownership over three marine leagues or approximately nine miles of submerged land, and this Court has sustained that claim. United States v. Louisiana, supra. This it was allowed to do under that part of the Act providing the special conditional historical grant. There is a critical distinction, however, between this historical grant and the unconditional three-mile grant. The three-mile grant involved in the second California case is not keyed to the State’s boundary as of any particular date, but the three-league grant is keyed to a State’s boundary as of the date it entered the Union. This is clear from the words of
In effect what Congress has done is to take into consideration the special historical situations of a few Gulf States and provide that where they can prove ownership to submerged lands in excess of three miles at the time they entered the Union, these historical lands will be granted to them up to a limitation of three marine leagues. No new state boundary is being created, but a State which qualifies simply is being given the same area it had when it entered the Union. Unlike the three-mile grant where this Court held that Congress left
Thus, the State of Texas, which has been allowed by the United States to claim a larger portion of submerged lands because of its historical situation, is limited in its claim by fixed historical boundaries. It may not combine the best features of both grants in order to carve out the largest possible area for itself. If it wishes to take advantage of the present three-mile grant then it may use its present coastline as defined by Article 8 of the Convention on the Territorial Sea and the Contiguous Zone, supra, to include artificial jetties. But if Texas wishes to take under the more expansive historical grant, it must use boundaries as they existed in 1845 when Texas was admitted to the Union. At that time there were no artificial jetties in existence so obviously they are not considered.
It cannot be ignored that the application of the Convention to Texas here would allow Texas, unlike all other States except Florida,2 to expand its own state bound
Thus, we hold today that the congressional grant to Texas of three marine leagues of submerged land is measured by the historical state boundaries “as they existed” in 1845 when Texas was admitted into the Union. The United States is entitled to a supplemental decree to this effect, and we grant 60 days to each of the parties in which to submit proposed supplemental decrees for our consideration.
THE CHIEF JUSTICE and MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.
MR. JUSTICE STEWART, concurring in the result.
The
- “boundaries . . . as they existed at the time such State became a member of the Union,” or
- “boundaries . . . as heretofore approved by the Congress,” or
“boundaries . . . as extended or confirmed pursuant to section 4,” i. e., “three geographical miles distant from [the State’s] coast line . . . .”1
We deal here with the first of these three alternative definitions of “boundaries” in
Texas now contends that the location of its historic boundary is to be determined by measuring out three leagues from harbor jetties constructed sometime after 1845. This seemingly anomalous result is required, Texas argues, by the second California case, United States v. California, 381 U. S. 139. I cannot agree. The second California case dealt with a single issue: the meaning of the term “coast line” for purposes of the third alternative definition of “boundaries” in
My Brother HARLAN reaches the result urged by Texas but for very different reasons. He construes the statu
The difference between majority and dissent thus turns on a narrow question: whether the word “boundaries” in the first alternative definition in
For these reasons, I concur in the conclusions of the Court in this case.
MR. JUSTICE HARLAN, dissenting.
At the outset, it is worth remarking that this case is but an epilogue to our decision in United States v. Louisiana, 363 U. S. 1, and arises out of the reservation of jurisdiction in this Court’s decree in that proceeding. It is not a new case in its own right. Had the Court paused to remind itself of that fact it might have been less ready to cut loose from basic things that were decided there. For reasons stated in this opinion, I believe that
The question in this proceeding is whether artificial jetties, constituting permanent harbor works, are to be reckoned as part of the base line in calculating the three-league grant of submerged lands in the Gulf of Mexico to which we have already held Texas is entitled under the
The major premise of the majority’s reasoning is, I believe, demonstrably wrong. The assumption that the statutory term “as it existed” was intended to freeze Texas’ seaward boundary (and hence the extent of the Act’s grant) as of 1845 is fundamentally inconsistent with the basis on which we held in the initial stage of this case that Texas was entitled to a three-league grant at all. The Court’s prior opinion upheld the claims of Texas only because Texas now has a valid state boundary “three leagues from land.”1 This present boundary is entirely independent of the
On the basis of this understanding of the term “as it existed,” we held in our prior opinion that the present maritime boundary of the State of Texas is defined by the Republic of Texas Boundary Act of 1836,6 because that Act was approved by Congress pursuant to its 1845 Resolution of Annexation of Texas.7 That
I.
The Court’s opinion in United States v. Louisiana, supra, makes it abundantly clear that the question now before us is the present location of the Texas boundary that was acknowledged in 1845, and that the words “as it existed” were not intended to answer that question.
A. THE USE OF PRESENT BOUNDARIES.
As the earlier opinion explained, the congressional assumption that some States have existing historic boundaries was based on the history of this Court’s treatment of submerged lands.8 The Court had early held that the States owned the land beneath their inland navigable waters. Pollard’s Lessee v. Hagan, 3 How. 212. Following that case it was widely believed that the same rule would apply to the marginal sea, that is, that the States owned the land beneath the waters of the sea within their boundaries.9 This belief was based on two assumptions neither of which was authoritatively tested until the 1940’s: first, that at least some States had valid boundaries in the sea, and second, that the States owned sub-
“. . . The question here is not the power of a State to use the marginal sea or to regulate its use in absence of a conflicting federal policy . . . .
“. . . We intimate no opinion on the power of a State to extend, define, or establish its external territorial limits or on the consequences of any such extension vis à vis persons other than the United States . . . . The matter of State boundaries has no bearing on the present problem.”11 (Emphasis added.)
As we held in the earlier phase of the present case, Congress’ purpose in the
“The States of the United States have legal boundaries. It is not a part of the power or the duty of Congress to make determination with reference to those boundaries, or where those boundaries should lie. It is a matter for the courts to determine, or for the United States . . . and . . . the several States, to reach an agreement upon. The pending bill does not seek to invade either province. . . . Whenever a question arises as to a boundary, it will be determined exactly as any other question in law is determined, and the boundary will be established.
“. . . It is not within the province of Congress to change the present boundaries of Texas without the consent of the State of Texas.” 99 Cong. Rec. 2620. (Emphasis added.)
In the Court’s prior opinion in this litigation we expressly adopted this construction of the Act. We accepted the then contention of the United States that the “Act did not purport to determine, fix, or change the boundary of any State, but left it to the courts to ascertain whether a particular State had a seaward boundary.”13 We went on to say,
“[W]e find a clear understanding by Congress that the question of rights beyond three miles turned on the existence of an expressly defined state boundary beyond three miles. Congress was aware that several States claimed such a boundary. Texas throughout repeatedly asserted its claim that when an independent republic its statutes established a
three-league maritime boundary, and that the United States ratified that boundary when Texas was admitted to the Union . . . .
“It was recognized [by Congress] that if the legal existence of such boundaries could be established, they would clearly entitle the respective States to submerged land rights to that distance under an application of the Pollard rule to the marginal sea. Hence . . . the right of the Gulf States to prove boundaries in excess of three miles was preserved.”14
B. THE WORDS “AS THEY EXISTED.”
In the first phase of this case, the problem was which, if any, of the five Gulf States had boundaries that were cognizable for purposes of the
“The earlier ‘quitclaim’ bills defined the grant in terms of presently existing boundaries, since such boundaries would have circumscribed the lands owned by the States under an application of Pollard to the marginal sea. . . . Some suggestions were made, however, that States might by their own action have effectively extended, or be able to extend, their boundaries subsequent to admission. To exclude the possibility that States might be able to establish present boundaries based on extravagant unilateral extensions, . . . subsequent drafts of the bill introduced the twofold test of the present Act—boundaries which existed at the time of admission and boundaries heretofore approved by Congress. It is apparent that the purpose of the change was not to alter the basic theory of the grant, but to assure that the determination of boundaries would be made in accordance with that theory—that the States should be ‘restored’ to the ownership of submerged lands within their present boundaries, determined, however, by the historic action taken with respect to them jointly by Congress and the State.”16 (Emphasis added.)
It was on this theory that we held that the words “as they existed” should properly be read to refer to the “moment of admission” rather than to preadmission claims, because Congress’ purpose had been to allow only claims that it had approved.17
“beginning at the mouth of the Sabine river, and running west along the Gulf of Mexico three leagues from land, to the mouth of the Rio Grande . . . .” 1 Laws, Republic of Texas 133. (Emphasis in the Court’s prior opinion.20)
The problem before us here—where the boundary of Texas is—must be answered by determining where “three leagues from land” now is, for Texas has no historic boundary claim at all unless it is to “three leagues from land.” The question is one that the Court does not even reach: should the words “from land” be taken, today, to refer to the shoreline in 1836, or 1845, or to the present shoreline, and, if to the last of these, should “land” include artificial accretions built upon the land? It is to that question that I now turn.
II.
Texas’ historic claim, by which the location of its present boundary must be determined, was to “three leagues from land.” As the United States concedes, a boundary measured by the location of the edge of a
“. . . Where a waterline is a boundary, the boundary follows the waterline through all its gradual, natural changes (Jefferis v. East Omaha Land Co., 134 U. S. 178, 189; Banks v. Ogden, 2 Wall. 57, 67; Jones v. Johnston, 18 How. 150; New Orleans v. United States, 10 Pet. 662, 717) . . . .
“. . . The location of the boundary changes, but it is the same, not a new, boundary.”21
At the very least, then, the present boundary of Texas must be measured from its present shoreline, which may have suffered accretion or erosion since 1836, and not from its 1845 shoreline.
The next question is whether the “land” whose present location is the base line from which to measure Texas’ historic claim to “three leagues” includes artificial extensions of land such as the jetties that are at issue in this case. There can be no doubt, as the Court’s opinion recognizes, that any maritime boundary established today would be taken to incorporate existing artificial structures of the kind built on the Texas coast and to be ambulatory with any such future artificial accretions. In United States v. California, 381 U. S. 139, 176, we specifically held that the three-mile boundary established by the
At the time of this California decision the argument was made that it would be undesirable to allow a State to extend its territory unilaterally by building onto the shoreline. We rejected that argument, finding a sufficient answer in the fact that the navigational servitude possessed by the United States gives it plenary power to forbid or regulate the construction of artificial extensions of the coastline.23 Furthermore, under the principle of the Convention only “permanent harbour works” forming an “integral part of the harbour system” count as part of the shore for measuring purposes, so no trifling construction will have the effect of moving a boundary.
The parties here have stipulated that the jetties in question fall within the Convention’s definition of “permanent harbour works.” In other words, were these jetties on the coast of California, they would be treated as part of the “coast line” in determining the extent of California’s statutory grant of submerged lands within three miles of its “coast line.” The precise issue before us is whether the Convention principle should now be taken to be incorporated into the claim of “three leagues from land” in the Republic of Texas Boundary Act as it was incorporated into the term “coast line” used in the
The Court appears to conclude that a different result should be reached in the case of Texas because “[u]nlike
Whether the words “three leagues from land,” written in 1836, should now be held to mean “three leagues from the natural shore” or “three leagues from the coast line” as that phrase would be interpreted today is of course not an easy question. So far as we know, Texas had no artificial extensions of its coast in 1836 or 1845, and there is every reason to assume that it gave no thought to the present problem. Nor does it appear that any other sovereign in the 19th century had occasion to consider the question.
We are thus constrained, as one writer would have it, to guess what the Texas Legislature “would have intended on a point not present to its mind, if the point had been present.”24 Since Congress in effect left the interpretation of the Republic of Texas Boundary Act to us, that exercise involves no speculation as to how Congress interpreted or would have interpreted that Texas Act. The soundest principle of interpretation, it
The question apparently first arose in the 1920’s. The Preparatory Committee for the League of Nations Conference for the Codification of International Law, to be held at The Hague in 1930, submitted to the various nations the question “how the base line for measuring the breadth of territorial waters is to be fixed in front of ports.”25 Great Britain and several other nations responded, “In front of ports, the base line from which the territorial waters are measured passes across the entrance from the outermost point or harbour work on one side to the outermost point or harbour work on the other side.”26 The United States quickly adopted the British suggestion.27 Several nations, although not, like Great Britain, expressing the principle in the present tense as an existing rule, said that much the same principle “should be” the rule.28 All together, of 18 responses received by the Preparatory Committee, none favored a different base line.29 The Committee then formulated the principle that “territorial waters are measured from
Because of disagreement over unrelated matters, the Hague Conference produced no treaty on territorial waters.31 The matter was raised again, however, beginning in 1952, and the International Law Commission drafted the document that became, in 1958, Article 8 of the Convention on the Territorial Sea and the Contiguous Zone, ante, at 158. The ILC’s comment was “This article is consistent with the positive law now in force.”32 The ILC draft was presented to the UN Conference on the Law of the Sea, where M. Francois, the Expert to the Secretariat of the Conference, commented that “States had long regarded harbour works such as jetties as part of their land territory and that practice should be universally recognized as unchallengeable.”33 The principle was adopted by the Conference, after discussion and without dissent, and became Article 8.
The United States here contends that because the outermost harbor-works principle had not been articulated in 1836 or 1845, it should not now be a basis for interpreting the Republic of Texas Boundary Act. The premise of this contention is sound: an ancient statute should ordinarily be interpreted in light of the doctrines prevailing at the time it was passed, rather than of subsequent changes in governing principles. But the conclusion drawn from this premise by no means follows in this instance. The outermost permanent harbor-works principle was not a new rule substituted for an older,
The conclusion that the Texas Boundary Act should be read today in light of the outermost harbor-works principle is fortified by the fact that the result to which this reading leads is eminently sensible. Considerations of history aside, there is no good reason (and certainly there is no suggestion in the
Believing that the limit of Texas’ submerged land grant is its present boundary, that that boundary is defined by the Republic of Texas Boundary Act of 1836, and that that Act defines a boundary that should now be measured from the outermost points of the jetties in question, I respectfully dissent from the Court’s determination of the issue before us.