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December 20, 1963

reclaimed." The word "made" was first inserted in a bill introduced by Congressman Francis E. Walter, of Pennsylvania, that was favorably reported by the Committee on the Judiciary (H. Rept. 2078, p. 3, 81st Cong., 2d sess.) and ultimately became the Submerged Lands Act. The report states that the title containing the words in question “is, in substance, the same as” the bills that omitted the word “made.” If we read this report literally the addition of "made" did not change the substantive meaning, and since the words “filled in or reclaimed” do not cover naturally-made islands, the addition of "made" did not cover them.

The arguments based upon such general expressions clutch at straws. It requires an extraordinary stretch of the imagination to believe that any of the speakers had in mind the application of their remarks to naturally-made islands, a problem with respect to which they were otherwise utterly silent, as were all other Senators and Representatives.

2. The words "filled in, made, or reclaimed land" were used in the Anderson bill (S. 107, 83d Cong., 1st sess.) in a manner which plainly confined them to land made by man. The Anderson Bill was introduced by the opponents of legislation giving the submerged lands to the States. One of the arguments advanced by the proponents of such legislation had been that in a number of coastal States vast investments had been made in building up real estate developments, as in Florida, and recreational facilities, as at Rockaway Beach in New York, on filled-in lands in the marginal sea and in inland waters. The proponents had carried the argument to extreme length, maintaining that the Supreme Court's decisions had placed in jeopardy all filled-in and reclaimed lands such as the Back Bay area in Boston and the shores of the Great Lakes on which important parts of major cities now stand. The argument of the proponents, while of some pertinence to developments in the marginal sea, was utterly absurd as applied to situations like Boston's Back Bay area, for the Supreme Court decisions obviously did not apply to inland waters. In an effort to demolish the argument as a basis for giving away the submerged lands Senator Anderson and others proposed to recognize and confirm any right derived from a State or political subdivision “to the surface of filled in, made, or reclaimed land in such areas.”

There was no doubt that the words "filled in, made, or reclaimed land," in this context, meant "made by man." The basic theory of the Anderson Bill was that the States and their citizens were entitled to the surface rights of land that was the product of their investment of labor and resources, but that the Nation as a whole was entitled to

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the resources under the sea that were placed there by God. The Anderson Bill was debated at length and defeated before the same words were adopted as part of the Submerged Lands Act, hence it is argued that the words came to have an understood meaning that was carried over into the Submerged Lands Act. The weakness in the argument is that the meaning of all words depends in some degree upon their context; they take color not only from their verbal surroundings but from the purpose and understanding of their authors. It is not unusual to find the term “made * * * land” being understood to have one meaning when spoken by a man who thought that all natural resources belonged to the Nation while all investments built up by human effort should belong to the States (or those claiming under a State), and to find the same words_-"made * * * land"

” — being used in a much broader sense by one who believed that the States should be given title to all the submerged or surface lands they had previously been supposed to have owned. In other words, the words

, “filled in, made, or reclaimed" did not become terms of art with a special meaning that would survive a radical change in context and purpose.

3. The only “filled in, made, or reclaimed” lands mentioned in the long congressional debates were lands made by man. They were mentioned frequently and with great emphasis by numerous Senators, but especially by Senator Spessard L. Holland of Florida. There was no mention during the debates of naturally-made islands.'

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8 The use of "made" in the Anderson Bill to mean only lands made by man is incon. sistent with Senator Anderson's and Senator Douglas' use of the same word at least once in the debate when speaking of naturally-made lands. See Note 7 and the accompanying text. The only significance of the inconsistency would seem to be its tendency to prove that the word "made" was not used as a term of art with precise meaning but takes its color from the purpose and context. It is not suggested that the usage in debate proves that the word is used in the Submerged Lands Act in the broader sense.

• Specific recognition of the existence of naturally-made islands does appear in the testimony of two witnesses from the State of Louisiana given in the course of the 1948 joint hearings on various sumberged lands bills before the Committees on the Judiciary. These bills (e.g., S. 1988), which were essentially similar to the act ultimately adopted, proposed that the United States "confirm and establish titles of the States to lands and resources in and beneath navigable waters * • *." "Lands beneath navigable waters" were defined to include "all lands formerly beneath navigable waters, as herein defined, which have been filled or reclaimed * * *."

Discussing the difficulties in determining the location of the Louisiana shoreline due to the presence of bays, inlets and islands stretched along the coast, Mr. B. A. Hardey, Chairman of the State Mineral Board of Louisiana, stated as follows in answer to questions of Mr. Guy Woodward, Administrative Assistant to Senator E. H. Moore of Oklahoma (Joint Hearings on S. 1988 and similar House Bills, Soth Cong., 2d sess., pp. 111-112 (February 23, 1948)):

“Mr. WoodWARD. Is the land on these islands lying offshore Louisiana, which you mentioned, owned individually? Has that been patented or sold to individual owners ?

"Mr. HARDEY. Some of them are owned individually. Some of the islands disappear and bob up somewhere else sometimes. We have some litigation with landowners about

December 20, 1963

Any one of three conclusions is consistent with the course of the congressional discussion:

(a) The Senators and the Congressmen believed that section 2(a) (3) conveyed man-made land formerly under navigable waters, and that alone. That is why they never spoke of naturally-made islands.

(b) The man-made land was used as an illustration during the debate only because these were the dramatically appealing instances of the "fairness" of the legislation, but the Senators and Congressmen consciously believed that naturally-made islands were also being conveyed.

(c) The Senators and Congressmen were conscious only of the manmade lands and they were either ignorant of, or wholly forgot, any naturally-made islands.

There is nothing in the legislative history to indicate that one explanation is more plausible than the others. Whether the bill has one meaning or the other must therefore be derived from an understanding of the general purpose of the legislation and the tenor of the debate concerning its larger justifications.

ownership of land bodies. Land ordinarily is owned by individuals, and of course the water bottoms are owned by the State.

"Mr. WOODWARD. Are any of these islands of such permanent character that they are populated by residents ?

"Mr. HARDEY. Oh, yes ; some of them are.

Again, with respect to the difficulties of establishing a coastal boundary line, John L. Madden, Special Assistant Attorney General of the State of Louisiana, appearing for Fred S. LeBlanc, the State Attorney General, testified (id. at pp. 384-385):

"These indentations follow the outline of numerous lakes and bays, some of which not only extend inland for great distances but expand far to the south in a gulfward direction. Over broad and far-reaching spaces offcoast, our marginal waters are astoundingly shallow—so shallow, in fact, that islands therein appear to move in some mysterious manner, emerging here and sinking there, and being lost until they are discovered as forming a part of the coast or other islands of greater permanence.

"Obviously the lands beneath such shallow waters, extending gulfward over an extensive area, are well adapted for utilization and, by nature, are more closely related to the coastal region than they are to the ocean's bottom or the soils underlying the open sea. This is all the more true when we consider the fact that our coastal region is still in a state of constant change. What is land today may be water tomorrow, and the reverse is equally true.

"Upon reaching coastal outlets, an expansive confluence of waters joins with wind and tide to create physical curiosities of land and water. Water courses change from time to time, leaving great deposits of natural accretion. But largely inexplicable is the recession of our coast line, particularly on the west where about 144 miles of dry land has fallen into the Gulf since Louisiana was admitted to statehood."


The general intention of Congress in passing the Submerged Lands Act called for including naturally-made islands in the grant to the States. The legal theory on which Congress proceeded, if consistently applied, also required a relinquishment of naturally-made islands.

The general purpose of the Submerged Lands Act was “to restore" to the States and persons claiming under the States what was "taken away from them” by the decision in United States v. California, 332 U.S. 19 (1947). In Pollard's Lessee v. Ilagan, 3 How. 212 (1815), the Supreme Court held that the States owned the lands beneath navigable waters within their political boundaries (except as either a prior sovereign or the State might have granted land to a private owner). The case involved land in Mobile Bay which may have been naturally made; in any event the Court made it clear that the same rule would apply to land naturally made. Although Mobile Bay is inland waters, it was assumed throughout the rest of the nineteenth century and in the early decades of the twentieth century that the same rule applied to lands beneath the marginal sea, i.e. to the strip three miles in width between the coastline and international waters. When an island is formed, it belongs to the owner of the bed of the waters, City of St. Louis v. Rutz, 138 U.S. 226, 247 (1891). For many years, therefore, the States assumed that they were the owners of all lands within their boundaries under the marginal sea and of all islands formed therein by natural forces. They administered the lands as theirs and made both grants and leases. Many sizable investments were made in reliance upon the validity of the States' title.

As pointed out above, the decision in United States v. California, 332 U.S. 19 (1947), undercut the assumptions and defeated the expectations of many people and business concerns in coastal areas. The rationale invalidated the private titles on the strength of which large investments had been made.

The general purpose of the Submerged Lands Act was to undo the effect of the Supreme Court decisions and “restore” to the States and to those claiming under the States, what they supposed that they already owned.

In legal terms, the “restoration” was to be accomplished by making the rule of Pollard's Lessee v. Hagan applicable to the marginal sea in accordance with the previous supposition. The Supreme Court recognized that this was the basic theory of the Submerged Lands Act

December 20, 1963

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in United States v. Louisiana, 363 U.S. 1 (1960).10 After referring to the rule laid down in Pollard's Lessee v. Ilagan, the Court said (363 U.S. at 35): "Were that rule applicable also to the marginal sea—the premise on which Congress proceeded in enacting the Submerged Lands Act-it is clear that such a boundary would be similarly effective to circumscribe that extent of submerged lands beyond lowwater mark, and within the limits of the Continental Shelf, owned by the State." * * *

“We conclude that, consonant with the purpose of Congress to grant to the States, subject to the three-league limitation, the lands they would have owned had the Pollard rule been held applicable to the marginal sea * * *"

It is plain that the general purposes and the legal theory are at least as applicable to naturally-made islands as they are to submerged lands. There was at least as much if not more reason to suppose that the naturally-made islands belonged to the States or their grantees. There was at least as much reason to wish to put the titles to rest. The rule of Pollard's Lessee v. Hagan was at least as applicable to the naturallymade islands; possibly more applicable because the Pollard case apparently involved naturally-made land. One asks, therefore, how can anyone suppose that Congress did not convey those islands along with the submerged lands.

The answer is offered that Congress did not adhere rigidly to the thesis that the rule of Pollard's Lessee v. Hagan should be extended to the marginal sea. Some of the exceptions set forth in section 5 reserve to the United States property which probably would have passed to the States under a strict retroactive application of the rule. It is argued that since the Congress made these exceptions to the fulfillment of its general thesis, it may also have intended to except the naturally-made islands.

Granting the possibility, there is not the slightest reason to suppose that Congress followed such an utterly irrational course. Each of the departures from the principle of extending Pollard's Lessee v. Hagan to the marginal sea rests upon a foundation of policy or commonsense practicality. There was no reason for making an exception of the naturally-made islands. The extent of such naturally-made land is small--almost insignificant-in comparison with the submerged lands and the man-made lands in the marginal sea. Congress was not in a niggardly mood, holding out every bit of land that it could

10 A wealth of legislative material is cited in the opinion and will not be repeated here.

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