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later be incorporated into other new land in the delta area or may, indeed, sink back beneath the sea.

These processes have been taking place continuously for many years. As in Florida the general assumption was that Louisiana owned the bed of the sea within its political boundaries and therefore became the owner of any newly formed islands within the marginal sea. The area is valuable for oil fields and possibly other natural resources.

The controversy over title arises in the following manner. Under the common law the sovereign is the owner of the bed of all navigable streams and of navigable inland waters. In Pollard's Lessee v. Hagan, 3 How. 212 (1845), the Supreme Court held that newly admitted States became the owners of the lands beneath navigable waters within their political boundaries, except as a prior sovereign might have granted the land to another owner. Although the case involved land in Mobile Bay, which is inland waters, throughout the rest of the nineteenth century and during the early decades of the twentieth century it was generally assumed that the same role applied to lands beneath the marginal sea. It is also a settled rule that new islands formed in a body of water by natural forces became the property of the owner of the bed. City of St. Louis v. Rutz, 138 U.S. 226, 247 (1891). The States therefore administered both the submerged lands and the new islands as their own, and made both grants and leases.

During the 1930's and 1940's, after the discovery of vast natural resources under the marginal sea, the Federal Government began to challenge the States' claims of title to submerged lands. In United States v. California, 332 U.S. 19 (1947), the Supreme Court overturned the widespread prior assumption; limited the rule of Pollard's Lessee v. Hagan to tidelands and inland waters; and held that the United States had paramount rights in the lands under the marginal sea. Although the opinion spoke only of paramount rights, the decision sustained the claim of the United States to all the oil, natural gas, sulphur and other minerals so that we can say, for all practical purposes, that the United States was held to have title to the bed of the marginal sea. For present purposes it is also proper to assume that title to the islands formed by natural forces within the political boundaries of a State after the State was admitted to the Union was vested in the United States as the owner of the bed of the marginal sea. City of St. Louis v. Rutz, supra.'

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1 The issue is actually disputed, but the dispute is irrelevant to the issue considered in this opinion.

December 20, 1963 In subsequent rulings the decision in United States v. California was extended to Louisiana and Texas; ? obviously it applied to all

; other States. The rationale cast doubt upon private titles on the strength of which investments had been made.

The decisions gave rise to a national controversy which was resolved on May 22, 1953, when Congress enacted and President Eisenhower signed the Submerged Lands Act, 67 Stat. 29 (43 U.S.C. 1301 et seq.).

Generally speaking, the effect of the Submerged Lands Act is to release and relinquish to the States title to and ownership of "the lands beneath navigable waters" within State boundaries, including all the natural resources therein. Lands beneath navigable waters are defined in section 2(a) in three parts. Subdivision (1) includes lands covered by nontidal waters "up to the ordinary high water mark as heretofore or hereafter modified by accretion, erosion and reliction ***" Subdivision (2) covers "all lands permanently or periodically covered by tidal waters up to but not above the line of mean high tide and seaward to a line three geographical miles distant from the coastline of each such State * * *.93

**"3 Subdivision (3) brings within the definition:

“(3) all filled in, made or reclaimed lands which formerly were lands beneath navigable waters, as hereinabove defined."

The Submerged Lands Act conveys to the State whatever title the United States had to lands within the foregoing limits. It is equally plain that the act conveyed to the States whatever claim the United States might have to islands in the same area filled in or reclaimed by man (except as they might fall under one of the exceptions in section 5).

Sovereignty over islands existing when a State was admitted to the Union passed to the State. Title to some of those islands might have already passed into private hands and thenceforth be governed by State law. Title to others might have remained in the United States, just as other public lands on the mainland, but some of the latter may later have passed into private hands in the same manner as other public lands. In any event the status of the islands formed before statehood would not be different from that of other land under the State's jurisdiction.

2 United States v. Louisiana, 339 U.S. 699 (1950); United States v. Texas, 339 U.S. 707 (1950).

8 The omitted words put the line farther seaward in certain instances. Since that issue is not involved in the present controversy. I shall speak as if the limit were three miles.

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Islands in the marginal sea formed after May 22, 1953, belong to the State as the owner of the bed. City of St. Louis v. Rutz, 138 U.S. 226, 247 (1891).

Thus, the only question raised by the pending controversy is whether the lands naturally formed as islands in the marginal sea within the boundaries of an admitted State but before the enactment of the Submerged Lands Act belong to the States (and their grantees) or to the United States.

This question has once already been the subject of formal consideration. On June 7, 1956, the Director of the Bureau of Land Management of the Department of the Interior in the so-called Floyd A. Wallis case (BLM-A 036376 et al.), ruled that certain lands formed as mud-lumps in the Louisiana delta region belonged to the United States in its sovereign capacity and had not been transferred to Louisiana under the Submerged Lands Act. This decision was affirmed by the Secretary of the Interior, 65 I.D. 369 (1958).*

In my opinion, this ruling was erroneous and the title to the naturally formed lands in dispute belongs to the States and their grantees.


The words of the Submerged Lands Act do not resolve the issue. Although they can be read, standing alone, to mean that only man-made lands passed to the States, they lend themselves as readily to an interpretation covering both man-made and naturally-made islands.

The critical provision is section 2(a) (3) which includes among the lands conveyed :

“all filled in, made, or reclaimed lands which formerly were lands beneath navigable waters * * *."

The words "filled in" and "reclaimed" suggest the works of man, and since the word “made” is used in close association with "filled in" and “reclaimed”—indeed, it comes between them—they tend to color its meaning. Moreover, “made” is defined by many dictionaries to distinguish what is artificial from what is natural. E..., Dictionary of American English. The University of Chicago, 1942; Oxford English Dictionary (10 vol.), Clarendon Press, 1908; Webster's New International Dictionary, 2d ed., G. & C. Merriam Co., 1957.

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* Although the Decision of the Secretary was sustained in subsequent court proceedings, Morgan v. Udall, 306 F. 2d 799 (C.A.D.C.) (1962), certiorari denied, 371 U.S. 941 (1962), the question under review was not in issue and not determined. See the Memorandum for Stewart L. Udall, Secretary of the Interior, in Opposition.

December 20, 1963

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It is said that some significance must be attached to the fact that "made" was inserted into some of the bills dealing with submerged lands well along in the controversy, and that the only possible purpose was to add "naturally-made” land. However, “made" can be given significance without going so far; for some purposes an island formed by artificially altering the course of a stream so as to cause the deposit of silt might well be described as “made by man," although it might be neither"filled in” nor "reclaimed." 5

It does no violence to the words of section 2(a) (3), however, to read “made” as including both man-made and naturally-made islands. Lawyers have often used the word “made” to describe lands newly formed by nature. E.g., Jefferis v. East Omaha Land Co., 134 U.S. 178 (1890); County of St. Clair v. Lovingston, 23 Wall. 46, 59 (1874); Linthicum v. Coan, 64 Md. 439, 451 (1885), 2 Atl. 826, 828; Trustees of Hopkins Academy v. Dickinson, 63 Mass. 544, 545 (1852) (Shaw, C. J.); Union Depot, Street Ry. & Transfer Co., v. Brunswick, 31 Minn. 297, 303 (1883), 17 N.W.626, 629; Clark, A Treatise on the Law of Surveying and Boundaries, S$ 259, 269 (2d ed.); id., $ 598 (3d.). The word “made" was applied to lands formed by natural forces on several occasions during the debates on the Submerged Lands Act.6 For example, Senator Paul H. Douglas, of Illinois, said (99 Cong. Rec. 2936): “It is primarily in this delta region of made land that oil and gas have been found in Louisiana." He was describing land made long before the white man came to America.”

In sum, the words of section 2(a) (3) as a matter of etymology alone, may fairly be read, either (1) as covering both man-made and natu

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6 Strictly speaking, "filled in" applies to areas into which man has trucked or pumped earth and other solid fill. "Reclaimed" describes land from which the waters have been excluded.

* Very slight support for this reading of "made" in section 2(a) (3) can be drawn from the fact that the word is omitted from section 5(a) which excepts lands "filled in, built up, or otherwise reclaimed by the United States for its own use." The contrast is probably fortuitous, but it may be significant that "made" was not used in the final version where the reference is plainly confined to the works of man.

17 "Made" was used in the same way by Senator Clinton P. Anderson, of New Mexico, in the course of hearings before the Senate Committee on Interior and Insular Affairs on the submerged lands bills. In discussing the location of the coastline from which the marginal sea would be measured, he said (Hearings in Executive Sessions, 83d Cong., 1st sess., p. 1356 (March 16, 1953)) :

"I am sitting here looking at a map showing where the leases have been granted in Texas and Louisiana, both prior to and subsequent to June 23, 1947; and if I am not mistaken, a good deal of the land that lies south and east of New Orleans is made land. If Louisiana wants to have the advantage of all that made land around which there bas been a great deal of leasing activity, then naturally it has to be limited by whatever has happened to this other land. If it wants to take its original boundaries and include them, it has that right."

rally-made lands, in which event the naturally-made islands were released to the States, or (2) as covering only man-made lands, in which event these naturally-made lands still belong to the United States. For their meaning as a matter of law, one must look to other evidences of congressional intent.


The legislative history contains no reliable evidence that Congress had any conscious and specific intent either to retain or to release the naturally-made islands.

Despite the lengthy hearings, the floor debates in several Congresses, and the exhaustive character of the debates, the legislative history of the Submerged Lands Act shows that neither Congress nor any committeo ever directed its attention to naturally-made islands formed after statehood in the marginal sea. A fortiori there is no explicit evidence showing whether Congress intended to retain or convey them, and none showing its understanding of the meaning of “made” in that respect. Out of the mass of legislative history only three relevant conclusions can fairly be drawn.

1. The occasional expressions of understanding or intent that may be thought relevant are unpersuasive because they point sometimes to one conclusion and sometimes to another, and were uttered under circumstances that strongly suggest that the speaker was not aware of their possible bearing upon the present issue.

Thus, when Senator Guy Cordon, of Oregon, who presided at the hearings on the submerged lands bill and who was its floor manager, was describing the proposed legislation, he referred to the words "all filled in, made, or reclaimed lands," and said (99 Cong. Rec. 2633):

“That would appear to be perfectly clear. It provides that the joint resolution shall apply to areas that are now above water, but which were under navigable waters at some time in the past.” Senator Cordon's statement, read literally, applies to lands which rose above navigable waters because of natural forces as well as to those that were filled in or reclaimed by man.

On the other hand, the House Committee on the Judiciary, which handled the submerged lands bills, made a similar statement that cuts in the opposite direction. Earlier bills, including the joint resolutions vetoed by President Truman, relinquished the claim of the United States to "all lands formerly beneath navigable waters, as herein defined, which have been filled or reclaimed.” Only a forced construction would bring natural islands within the words "filled or


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