The Submerged Lands Act, which unconditionally permits each
coastal State to claim a seaward boundary three geographical miles
from its coastline, allows a State bordering on the Gulf of Mexico
to claim its seaward "boundary as it existed at the time such State
became a member of the Union." The latter grant, which is thus
conditioned on a State's prior history, is subject to a
three-league maximum limitation. In
United States v.
Louisiana, 363 U. S. 1 (1960),
this Court held that the State of Texas qualified for the
three-league grant, but did not determine the coastline from which
the grant was to be measured. Texas now makes the claim, which is
disputed by the United States, that, for purposes of the
three-league grant, its coastline extends to the seaward edge of
artificial jetties in the Gulf, and that consequently it owns
certain submerged lands lying more than three leagues from its
natural shoreline.
Held: Texas' claim under the three-league grant must be
measured by the boundary which existed in 1845, when Texas entered
the Union, and cannot be measured from artificial jetties built
long thereafter. Pp.
389 U. S.
157-161.
Page 389 U. S. 156
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 Submerged Lands Act, 67 Stat. 29, 43 U.S.C. §§
1301-1315, which makes two entirely separate types of grants of
submerged land to the States. The first is an unconditional grant
allowing each coastal State to claim a seaward boundary out to a
line three geographical miles distant from its "coast line." The
second is a grant conditioned upon a State's prior history. It
allows those States bordering on the Gulf of Mexico, which, at the
time of their entry into the Union, had a seaward boundary beyond
three miles, to claim this historical boundary "as it existed at
the time such State became a member of the Union," but with the
maximum limitation that no State may claim more than "three marine
leagues" (approximately nine miles). In
United States v.
Louisiana, 363 U. S. 1 (1960),
we held that Texas qualified for this conditional three-league
grant. We did not decide, however, what is the "coast line" from
which this three-league grant is measured. That question was
specifically reserved. [
Footnote
1]
Page 389 U. S. 157
Texas now claims that, for purposes of the three-league grant,
its coastline extends to the seaward edge of artificial jetties
constructed by it in the Gulf of Mexico and that it is entitled to
lease certain submerged lands, portions of which lie more than
three leagues from any part of the natural shoreline of Texas, but
within three leagues of these jetties. The United States claims
these portions for itself and invokes our original jurisdiction for
a supplemental decree to that effect. The question we must decide
is whether Congress intended that this grant, based as it is on the
historical boundaries of the State, be measured from artificial
jetties constructed many years after the State's entry into the
Union. For reasons to be stated we reject Texas' contention and
hold, as the Act clearly says, that its three-league claim must be
measured to "such boundary as it existed at the time such State
became a member of the Union."
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 § 4 of the Submerged Lands Act that it
was
Page 389 U. S. 158
establishing a new standard boundary for all coastal States:
"Any State admitted subsequent to the formation of the Union
which has not already done so may extend its seaward boundaries to
a line three geographical miles distant from its coast line. . .
."
67 Stat. 31, 43 U.S.C. § 1312. The decision in the second
California case,
supra, held that Congress had
left it up to this Court to define the "coast line" from which the
standard three-mile grant was to be measured. The Court then
borrowed the international definition of coastline in the
Convention on the Territorial Sea and the Contiguous Zone, [1964]
15 U.S.T. (Pt. 2) 1607, T.I.A.S. No. 5639, used by the United
States in its foreign relations with other countries, reasoning
that
"[t]his establishes a single coastline for both the
administration of the Submerged Lands Act and the conduct of our
future international relations. . . . Furthermore the
comprehensiveness of the Convention provides answers to many of the
lesser problems related to coastlines which, absent the Convention,
would be most troublesome."
United States v. California, 381 U.
S. 139,
381 U. S. 165
(1965).
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
Page 389 U. S. 159
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 § 2(a)
of the Act which state that the historical grant extends
"to the boundary line of each such State where in any case such
boundary
as it existed at the time such State became a member
of the Union . . . extends seaward (or into the Gulf of
Mexico) beyond three geographical miles. . . ."
67 Stat. 29, 43 U.S.C. § 1301. (Emphasis added.) This meaning is
reinforced by the wording of § 4 which states that
"[n]othing in this section is to be construed as questioning or
in any manner prejudicing the existence of any State's seaward
boundary beyond three geographical miles if it was so provided by
its constitution or laws
prior to or at the time such State
became a member of the Union. . . ."
43 U.S.C. § 1312. (Emphasis added.) This historical grant of
three marine leagues is, through 2(b) of the Act, made to apply
only to those States bordering the Gulf of Mexico. 43 U.S.C. §
1301.
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
Page 389 U. S. 160
boundary definitions up to it, here, Congress granted land the
boundaries of which are determined by fixed historical facts. This
is clear from the wording of the statute itself. In making the
three-mile grant, Congress speaks in terms of "three geographical
miles
distant from its coast line." 43 U.S.C. § 1312.
(Emphasis added.) In the three-league grant, however, the term
"coast line" is omitted and in its place the word "boundary" is
used with the following express qualification: "as it existed at
the time such State became a member of the Union. . . ." No
definitions are required by this Court and there is no need to
resort to international law; Texas has simply been given that
amount of submerged land it owned when it entered the Union.
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, [
Footnote 2] to expand
its own state boundaries
Page 389 U. S. 161
beyond the congressional limitation simply because of a rule
governing the relationships between maritime nations of the world.
This is a domestic dispute which must be governed by the
congressional grant. There is no reason why an international treaty
should be applied when it simply works to take away land from the
United States in order to give to Texas more land than it ever
claimed historically. We cannot believe that Congress intended such
a result.
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.
[
Footnote 1]
Louisiana was the only State to raise the question and our
answer was as follows:
"We decide now only that Louisiana is entitled to submerged land
rights to a distance no greater than three geographical miles from
its coastlines,
wherever those lines may ultimately be shown to
be."
363 U.S. at
363 U. S. 79.
(Emphasis added.)
[
Footnote 2]
In
United States v. Florida, 363 U.
S. 121 (1960), we held that Florida also was entitled to
the historical three-league grant. Since historical claims b the
other Gulf States of Louisiana, Mississippi, and Alabama were
rejected in
United States v. Louisiana, 363 U. S.
1 (1960), Texas and Florida are the only two States
which qualify for the expansive grant of three marine leagues
instead of the grant of three miles.
MR. JUSTICE STEWART, concurring in the result.
The Submerged Lands Act in § 3(a) grants to the States
"ownership of the lands beneath navigable waters within the
boundaries of the respective States. . . ." 67 Stat. 30, 43 U.S.C.
§ 1311. The critical term "boundaries" is given three alternative
definitions in § 2(b) of the Act:
1. "boundaries . . . as they existed at the time such State
became a member of the Union," or
2. "boundaries . . . as heretofore approved by the Congress,"
or
Page 389 U. S. 162
3. "boundaries . . . as extended or confirmed pursuant to
section 4,"
i.e., "three geographical miles distant from
[the State's] coast line. . . ." [
Footnote 2/1]
We deal here with the first of these three alternative
definitions of "boundaries" in § 2(b). In
United States v.
Louisiana, 363 U. S. 1, this
Court upheld Texas' claim to a historic boundary based on the
Republic of Texas Boundary Act of 1836, which was in effect at the
time of the Annexation Resolution of 1845. That Act described
Texas' boundary in the Gulf of Mexico as running "three leagues
from land."
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 § 2(b). [
Footnote
2/2] But Texas does not claim a boundary under that definition,
and the term "coast line" simply does not appear in the definition
of "boundaries" under which Texas does assert its claim. The second
California case is, therefore, basically irrelevant.
My Brother HARLAN reaches the result urged by Texas but for very
different reasons. He construes the statutory
Page 389 U. S. 163
phrase "boundaries as they existed" as referring to the "three
leagues from land" formula of the Texas Boundary Act, and then
applies this 1845 formula to present Texas shore conditions. The
Court, on the other hand, construes "boundaries as they existed" as
referring, not to the 1845 formula, but to a particular line -- the
line resulting from the application of the 1845 formula to 1845
conditions.
The difference between majority and dissent thus turns on a
narrow question: whether the word "boundaries" in the first
alternative definition in § 2(b) refers to an operative definition
or to a line. I adopt the latter construction because I think the
former plays havoc with the ordinary understanding of the word
"boundaries," and because the legislative history does not persuade
me that Congress meant to use that word in an unusual sense. It is,
of course, true that boundaries may shift when a constant operative
definition is applied to changing conditions. But the ordinary
understanding of the word "boundaries" is the resultant line, not
the operative definition. Finally, when the phrase "as they
existed" is appended to the word "boundaries," it simply does not
make semantic sense to interpret "boundaries" as a general
definition, rather than a particular line.
For these reasons, I concur in the conclusions of the Court in
this case.
[
Footnote 2/1]
A proviso to § 2(b) establishes a maximum for any of the three
boundary definitions:
"[I]n no event, shall the term 'boundaries' . . . 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. . . ."
[
Footnote 2/2]
Presumably the construction there adopted would also apply to
the term "coast line" in the maximum proviso of § 2(b),
389
U.S. 155fn2/1|>n. 1,
supra, but the United States
does not contend that Texas' claim exceeds the § 2(b) maximum.
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
Page 389 U. S. 164
the decision upon the issue now in dispute should be in favor of
the Texas position.
The question in this proceeding is whether artificial jetties,
constituting permanent harbor works, are to be reckoned as part of
the baseline 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 Submerged Lands Act. The opinions of the
majority declare that they may not be, by a beguilingly simple
process of reasoning that boils down to this syllogism: the outward
limit of Texas' three-league grant is determined under the Act by
the location of its maritime boundary "as it existed" in 1845, when
it was admitted to the Union; these harbor works were not in
existence at that time; therefore, these works play no part in
fixing the location of the boundary. Our decision in
United
States v. California, 381 U. S. 139,
wherein we held that similar harbor works were includable in
calculating the outward limit of California's submerged lands
grant, has no application, it is said, because California's grant
was not dependent upon its "admission" boundary.
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." [
Footnote 3/1]
This present boundary is entirely independent of the Submerged
Lands Act, which neither created it nor affected its location. The
question before the Court at this time is not where that boundary
was in 1845, but where it is now.
Page 389 U. S. 165
The words "as it existed" were fully and carefully interpreted
in the Court's earlier opinion, and they were held to serve a
purpose different from and irrelevant to the determination of the
location of any state boundary. Contrary to the impression
left by today's opinion, the language of the grant made in the
Submerged Lands Act does not contain these words. The operative
section of the Act simply grants to every coastal State
"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. [
Footnote 3/2]"
To take under this language, a State may either prove an
existing boundary, subject to a limitation of three leagues in the
Gulf of Mexico and of three miles in the Atlantic or Pacific Ocean,
or establish a new boundary three miles from its coastline pursuant
to a separate section of the Act. [
Footnote 3/3] The State must, however, presently have
some boundary in order to take anything. The term "boundaries" is
defined elsewhere in the Act to include boundaries "as they existed
at the time such State became a member of the Union, or as
heretofore approved by the Congress." [
Footnote 3/4] The purpose of this section, we held, was
simply to restrict claims to boundaries that had, at one time or
another, been approved by Congress. [
Footnote 3/5]
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, [
Footnote 3/6] because
that Act was approved by Congress pursuant to its 1845 Resolution
of Annexation of Texas. [
Footnote
3/7] That
Page 389 U. S. 166
Act claimed for Texas a boundary "three leagues from land." As
the United States here concedes, maritime boundaries defined by
reference to the shore are inherently mobile with changes in the
configuration of the shoreline. Hence, the present location of the
boundary line drawn in 1836 is not necessarily the same as its
location in 1836 or 1845. Below, after presenting in some detail
the argument that the limit of the Submerged Lands Act grant is the
present location of the historical boundary of the State
of Texas, I shall consider the question whether these artificial
jetties are to be included in determining that location.
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. [
Footnote 3/8] 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. [
Footnote
3/9] 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 submerged
Page 389 U. S. 167
land within them. In a series of cases beginning in 1947, the
second assumption was destroyed by this Court: the United
States was held to have paramount rights in offshore lands as an
attribute of national sovereignty. [
Footnote 3/10] The
first assumption, however,
was explicitly left standing by those decisions:
". . . 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 a vis persons other
than the United States. . . .
The matter of State boundaries
has no bearing on the present problem. [
Footnote 3/11]"
(Emphasis added.)
As we held in the earlier phase of the present case, Congress'
purpose in the Submerged Lands Act was to restore the situation to
what it had assumed it to be prior to 1947, and its method of doing
this was to "quitclaim" back to the States the "paramount rights"
that this Court had found to be an attribute of national
sovereignty. [
Footnote 3/12] This
quitclaim, like the cases that led to
Page 389 U. S. 168
it, had nothing to do with the validity or location of state
maritime boundaries. As Senator Cordon, the Acting Chairman of the
Committee on Interior and Insular Affairs and the bill's chief
exponent in the Senate, put the matter,
"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. [
Footnote 3/13]"
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
Page 389 U. S. 169
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. [
Footnote 3/14]"
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 Submerged Lands Act grant. Congress had limited
boundaries so cognizable to boundaries "as they existed" at
admission or "as heretofore approved" by Congress. The Court's
decision at that time therefore turned entirely on the meaning of
those two terms, which were consequently subjected to exacting
analysis. We at that time rejected a contention made on behalf of
the States, but apparently now adopted by the Court, that the words
"as they existed" referred simply to the location of state
boundaries at the time of admission; [
Footnote 3/15] we held, quite to the contrary,
Page 389 U. S. 170
that the purpose of these words was not to affect the location
of present state boundaries, but to single out those boundary
claims that had at one time or another been approved by Congress as
the only ones cognizable under the Act. We reasoned as follows:
"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 two-fold 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. [
Footnote 3/16]"
(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. [
Footnote 3/17]
Page 389 U. S. 171
Having defined the term "as they existed" to mean "as
acknowledged by Congress at the moment of admission," the Court in
the prior litigation went on to hold that the Resolution of
Annexation of 1845 [
Footnote
3/18] had, indirectly, been a congressional acknowledgment of
the boundary established by the Republic of Texas Boundary Act of
1836, and that this Act therefore defines Texas' present boundary.
[
Footnote 3/19] The Act reads, in
relevant part, as follows:
"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. [
Footnote 3/20])
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
Page 389 U. S. 172
body of water is inherently ambulatory. In its brief here, the
United States put the matter this way:
". . . 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,
134 U. S.
189;
Banks v. Ogden, 2 Wall. 57,
69 U. S. 67;
Jones v.
Johnston, 18 How. 150;
New Orleans v. United
States, 10 Pet. 662,
35 U. S.
717). . . ."
". . . The location of the boundary changes, but it is the same,
not a new, boundary. [
Footnote
3/21]"
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 baseline 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,
381 U. S. 176,
we specifically held that the three-mile boundary established by
the Submerged Lands Act for States without historic boundaries
would be measured from existing artificial structures and from
future artificial structures as they might be built. We based our
decision on the conclusion that Article 8 of the Convention on the
Territorial Sea and the Contiguous Zone, quoted in the Court's
opinion,
ante at
389 U. S. 158,
reflected a national
Page 389 U. S. 173
and international view on this matter which should be taken to
be incorporated within the three-mile-boundary section of the
Submerged Lands Act. [
Footnote
3/22]
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. [
Footnote 3/23] 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 Submerged Lands Act.
The Court appears to conclude that a different result should be
reached in the case of Texas because,
"[u]nlike
Page 389 U. S. 174
the three-mile grant, where this Court held that Congress left
boundary definitions up to it, here, Congress granted land the
boundaries of which are determined by fixed historical facts."
Ante at
389 U. S.
159-160. This statement, in itself, is correct, but the
result does not follow. In the case of California, we were dealing
with Congress' term "coast line," and we held that Congress had
left us considerable latitude in interpreting it. In the case of
Texas, to which Congress has granted land out to its "boundaries,"
the question left to this Court is narrower: we must determine
whether the Texas Act, defining those boundaries should be
interpreted as of today to include artificial extensions of the
shoreline in the baseline for measuring those boundaries. That
Congress referred us to an ancient boundary claim hardly justifies
our assuming that that claim is self-explanatory.
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." [
Footnote 3/24] 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
Page 389 U. S. 175
seems to me, is to assume that Texas would have come to the same
conclusion that was reached by every nation that discussed the
issue when it did arise. That conclusion, which was not only
unanimous but also obvious and natural, was that maritime
boundaries move as the shoreline on the sea is extended.
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 baseline for
measuring the breadth of territorial waters is to be fixed in front
of ports." [
Footnote 3/25] Great
Britain and several other nations responded,
"In front of ports, the baseline 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. [
Footnote
3/26]"
The United States quickly adopted the British suggestion.
[
Footnote 3/27] 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. [
Footnote 3/28] All together, of 18 responses received
by the Preparatory Committee, none favored a different baseline.
[
Footnote 3/29] The Committee
then formulated the principle that "territorial waters are measured
from
Page 389 U. S. 176
a line drawn between the outermost permanent harbour works," and
commented that "agreement exists" on this principle. [
Footnote 3/30]
Because of disagreement over unrelated matters, the Hague
Conference produced no treaty on territorial waters. [
Footnote 3/31] 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
389 U. S. 158.
The ILC's comment was "This article is consistent with the positive
law now in force." [
Footnote
3/32] 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. [
Footnote 3/33]"
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,
Page 389 U. S. 177
conflicting one. It was simply the first answer to a problem
that had not arisen before. The unanimity of nations in 1930
strongly suggests that Texas, had it considered the problem in
1836, would have reached the same conclusion.
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 Submerged Lands Act or
its legislative history) why the principles governing measurement
of the present-day boundary of the State of Texas should be
different from those that govern both the measurement of the
boundary of California and the measurement of the boundary of the
United States in the Gulf of Mexico opposite Texas. Furthermore,
the various practical considerations that led the nations of the
world to agree unanimously on the principle of Article 8 should
surely have considerable force here. The Court's rule, maintaining
the boundary of Texas immobile at its 1845 location, seems highly
unworkable, even if it now proves possible to determine that
location at all, [
Footnote 3/34]
for the result of such a rule is that, at some future time, not
only artificial but natural extensions of the land mass might prove
to be outside of "Texas." The alternative, suggested by the United
States here but rejected by the United States for international
purposes, would be to make the boundary mobile with respect
Page 389 U. S. 178
to natural, but immobile with respect to artificial, changes.
Such a rule involves obvious difficulties: the construction of
harbor works may affect the configuration of the entire shoreline,
making it soon impossible to determine where the "natural" change
ends and the "artificial" change begins. The outermost permanent
harbor-works principle, then, seems almost inevitable.
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.
[
Footnote 3/1]
See infra at
389 U. S.
171.
[
Footnote 3/2]
67 Stat. 30, 43 U.S.C. § 1311(a).
[
Footnote 3/3]
67 Stat. 31, 43 U.S.C. § 1312.
[
Footnote 3/4]
67 Stat. 29, 43 U.S.C. § 1301(b).
[
Footnote 3/5]
363 U.S. at
363 U. S.
26-28.
[
Footnote 3/6]
1 Laws, Republic of Texas 133 (1836).
[
Footnote 3/7]
363 U.S. at
363 U. S.
36-65.
[
Footnote 3/8]
363 U.S. at
363 U. S.
16-18.
[
Footnote 3/9]
See 363 U.S. at
363 U. S. 16.
[
Footnote 3/10]
United States v. California, 332 U. S.
19;
United States v. Louisiana, 339 U.
S. 699;
United States v. Texas, 339 U.
S. 707.
[
Footnote 3/11]
The quotation is from the opinion of MR. JUSTICE DOUGLAS, for
the Court, in
United States v. Louisiana, 339 U.
S. 699, at
339 U. S. 704,
705 (1950). The quoted statement is then explicitly relied upon in
the subsequent case involving Texas,
United States v.
Texas, 339 U. S. 707, at
339 U. S. 720.
In these cases, the two States had asserted that they had historic
boundaries in the sea, and were therefore not subject to the rule
of the first
California case that the United States had
paramount rights in the marginal sea. This Court ruled against the
state claims, holding that the existence and location of state
boundaries were irrelevant.
[
Footnote 3/12]
363 U.S. at
363 U. S. 17-20,
363 U. S.
24-29.
[
Footnote 3/13]
363 U.S. at
363 U. S. 11.
[
Footnote 3/14]
363 U.S. at
363 U. S.
24-25.
[
Footnote 3/15]
The argument of the States was that the words "as they existed"
included boundaries unilaterally declared prior to admission. 363
U.S. at
363 U. S. 13,
363 U. S. 15. The
theory appears to have been that the words had merely a "locating"
function. Finding that the purpose of these words was not clearly
revealed by the Act on its face, 363 U.S. at
363 U. S. 16, we
turned to the legislative history and concluded that the words were
instead meant to require congressional approval of the State's
boundary claim at the time of admission or later. 363 U.S. at
363 U. S. 16-30.
Our view was that the Act granted land out to whatever present
boundaries should prove to be valid, subject to the three-league
limitation in the Gulf, but that only those that had been approved
by Congress at or after admission could be considered valid for
purposes of this grant.
[
Footnote 3/16]
363 U.S. at
363 U. S.
26-28.
[
Footnote 3/17]
My Brother BLACK partially dissented from that opinion; it was
his view that the words "as they existed" could not be read, as the
Court read them, to refer simply to a "legally accepted" boundary.
363 U.S. at
363 U. S. 85,
89.
[
Footnote 3/18]
9 Stat. 108.
[
Footnote 3/19]
363 U.S. at
363 U. S.
46-65.
[
Footnote 3/20]
The passage is quoted at 363 U.S. at
363 U. S. 36.
[
Footnote 3/21]
Brief for the United States in Support of Motion for Injunctive
Relief and Supplemental Decree as to the State of Texas 17, 16
(filed July 13, 1967).
[
Footnote 3/22]
We reached this result despite the fact that the Act preceded by
five years the adoption of the international Convention, which
consequently was not in any literal sense incorporated by the Act.
We found, rather, that the Convention afforded the "best and most
workable definition" of the statutory term "inland waters," and,
derivatively, the statutory term "coast line." 381 U.S. at
381 U. S.
161-165.
[
Footnote 3/23]
381 U.S. at
381 U. S.
177.
[
Footnote 3/24]
Gray, The Nature and Sources of the Law 173 (1963 ed.).
[
Footnote 3/25]
League of Nations Doc. No. C.74.M.39.1929.V, League of Nations
Conference for the Codification of International Law: Bases of
Discussion: Vol. II -- Territorial Waters, p. 45 [hereinafter cited
as "Bases of Discussion"].
[
Footnote 3/26]
Id. at 46.
[
Footnote 3/27]
See League of Nations Doc. No.
C.351(b).M.145(b).1930.V, Acts of the Conference for the
Codification of International Law: Meetings of the Committees; Vol.
III -- Minutes of the Second Committee: Territorial Waters, p. 200
[hereinafter cited as "Acts of Conference"].
[
Footnote 3/28]
Bases of Discussion 46.
[
Footnote 3/29]
Id. at 457
[
Footnote 3/30]
Id. at 47.
[
Footnote 3/31]
See Acts of Conference 211.
[
Footnote 3/32]
1954 I.L.C. Yearbook 155.
[
Footnote 3/33]
U.N. Doc. No. A/Conf. 13/39, United Nations Conference on the
Law of the Sea, Official Records, Volume III: First Committee
(Territorial Sea and Contiguous Zone) 142.
[
Footnote 3/34]
No geodetic survey indicating the 1845 location of Texas'
shoreline exists. At oral argument, both sides were at a loss to
suggest any means by which the 1845 location of the boundary could
be ascertained, except by agreement between the United States and
Texas. This problem is, of course, typical of the difficulties that
dictate the principle that maritime boundaries are inherently
mobile.