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find an excuse to retain. Not only is every consideration applicable to the submerged lands equally applicable to islands risen above the sea, but no one has ever suggested any rational reason for making a distinction. Viewing the problem in terms of the general purposes and policy of the statute, and of the practical situation confronting Congress, one is driven to conclude that the general purpose of Congress and the theory of its legislation apply no less to the comparatively insignificant problem of title to naturally-made islands than to other portions of the grant.

IV

To construe the Submerged Lands Act as retaining naturallymade islands would create arbitrary and impractical distinctions giving rise to years of complicated litigation.

As indicated above, the same considerations that persuaded Congress to release to the State submerged lands and new man-made islands in the marginal sea are equally applicable to new naturally-made islands. No reason for reserving the naturally-made islands has ever been suggested. In addition, there are very strong reasons for eschewing that distinction, which would have been apparent to anyone who studied the problem. For although the concept of "naturally-made islands” appears on the surface to be simple and easy of administration, any interpretation of the words "filled in, made, or reclaimed land” that incorporated such a distinction would in fact give rise to expensive and enormously time-consuming litigation impairing the value of the lands affected. Conversely, the problems are minimized or entirely avoided by reading the critical phrase to include naturally-made islands.

1. The apparently simple distinction between naturally-made islands and man-made islands is, in truth, hazy and perhaps unworkable. Off the Florida coast the line can be drawn without too much difficulty because the islands are quite plainly the result of natural forces working alone. In the Mississippi delta, the problems almost defy solution because the changes are the result of varying combinations of human and natural forces. Even in theory there is no way of telling which combinations deserve the label "man-made" and which are to be described as "naturally-made."

For the past 150 years man's works have substantially modified the natural regime of the delta region. Man is responsible for the extensive construction of jetties and spur dikes along the major passes. The creation of artificial levees that narrow the passes in order to increase the river's velocity; the dredging of canals; the artificial opening of natural levees; the damming of natural openings between

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islands to form continuous river banks are only a few general examples. Upriver from the delta, the artificial levee system flanking nearly the entire length of the river has precluded normal sedimentary alluviation of the river banks, thereby modifying depositional processes within the delta. Whatever their effect upon the total quantity of deltaic sediment, man's activities have, without question, altered the depositional sites and rates. As a consequence, the present deltaic landscape is in great part a product of artificial forces.

A specific illustration will demonstrate the difficulty of making the distinction, both conceptually and practically. In 1862 a minor artificial cut was made across the narrow east bank levees of the Mississippi River a few miles above Head of Passes. This cut, reportedly made by the two daughters of a fisherman named Cubit, enlarged rapidly and formed a network of alluviating distributary channels. Through this outlet, subsequently known as Cubits Gap, poured a volume of sediment calculated to exceed 1,200,000,000 cubic yards. About 8 miles farther north a smaller artificial crevasse was made sometime prior to 1874, reportedly by an oyster fisherman named Baptiste Collette. Sedimentary deposits through Baptiste Collette Bayou and its distributaries have coalesced with those from Cubits Gap to form a subdelta covering an area in excess of 100 square miles, most of which had formerly been shallow water. In the process, how

, ever, these sediments have enveloped a number of islands which were present in the 1870's, for example, the islands composing Robinson's and Parry O'Neil's Reef, and the central and southern members of the Bird Island group.

The foregoing example suggests several questions. Did Cubit's daughters and Baptiste Collette "make" the subdelta covering an area in excess of 100 square miles? Perhaps the answer is yes; the subdelta

; would not have been formed if they had not cut the east bank levees. Perhaps not; it might be said that neither Cubit's daughters nor Collette intended to cause the land formation or were sufficiently intelligent to know what would follow from cutting the levee. Is the ownership of land formed in this manner to depend upon proof of the state of mind of someone who acted a century ago? If not, what is it to depend on? 11

11 In County of St. Clair v. Lovingston, 23 Wall. 46, 66 (1874), the Supreme Court indicated that an accretion to the bank of a river becomes part of the riparian parcel even though the deposit was the result of upstream obstructions placed by man. This holding may give some support to the view that an island is naturally-made and belongs to the owner of the bed even though some other person has caused its formation. The conclusion is by no means inevitable because of the difference between accretion and islands. Furthermore, the intent of the individual who built the obstruction might still be relevant, for it is plain that in the Lovingston case the persons who built the obstructions had no intention to cause accretion to land downstream.

This is only one of many possible examples. In other cases the origin of breaks through the levee may be unknown; perhaps they were made by man, perhaps by nature. And quite different combinations of human and natural forces were working in other places.

2. Even when a clear theoretical distinction between naturally-made and man-made was developed, there would be virtually insuperable difficulties in applying the definitions to the delta area. The continuous deposit of sediment, coupled with the geological changes resulting from the pressure of the deposits, has often resulted in accretion to both islands and mainland, in the joining of islands, and in the envelopment of both old and new islands in what now appears to be mainland. If the proposed distinctions were made it would be necessary to mark off on the land (or on a detailed map) parcels having the following characteristics:

(a) Islands existing at the time of admission to statehood, with their accretions.

(b) Islands formed within the State after statehood but before the enactment of the Submerged Lands Act, with their accretions.

(c) Man-made islands, with their accretions. (d) Accretions to the upland.

In each instance one would have to be ready to distinguish a true island from a shoal washed by high tide. Also, a rule would have to be developed for dividing accretions to the fast land after the "federal islands” had been enveloped. The difficulties of marking out these distinctions upon the 100-square-mile subdelta started by Cubit's daughters and Baptiste Collette will again serve as an illustration.

The tracing of lands throughout this process of envelopment in order to identify those to which the Federal Government would have title-even assuming that adequate charts may be found--would be exceedingly complicated. Historical and geological investigation stretching back for more than a century would be necessary. A costly core drilling program might succeed in making some differentiations of the now combined land masses. However, it appears

that even this might not be possible where the fast land, the islands and the accretions thereto were produced from deltaic deposits of the same sedimentary characteristics. According to Dr. James P. Morgan, Professor of Geology and Managing Director of the Coastal Studies Institute of Louisiana State University, in many cases delineation of the former islands from their incorporating sediment "would necessitate the development of new scientific techniques beyond the scope of our present knowledge.” 12

19 Letter from Dr. Morgan dated September 21, 1962, to Mr. Austin Lewis, Special Counsel for the State of Louisiana.

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Undoubtedly there will be some litigation between private parties, and between Louisiana and private parties, even if the Submerged Lands Act is interpreted to release the naturally-made islands. The Federal Government will have an interest wherever land was added to public or acquired lands by accretion. It seems plain, however, that to read into the Submerged Lands Act a distinction based upon the way in which new lands were formed would increase the litigation many hundredfold, both in volume and in difficulty. Any construction of "made” that retained some parcels as naturally-made would require extensive litigation to answer a most complex series of historical and geological questions in order to identify the lands belonging to the Federal Government. No one could establish good title to land in the delta area without an acre-by-acre investigation eventually covering thousands of parcels of offshore islands and mainland. Titles would turn not upon existing plat books and transfers but upon dimly charted land movements in the past.

3. In the Louisiana areas affected by the instant question it is almost impossible to distinguish between the lands under water, which were indisputably relinquished to the States, and the area above the line of mean high tide, which is the most that could be claimed by the United States as fast lands formed as naturally-made islands. The whole area is low, swampy, interlaced by waterways, and flooded during the higher stages of the Mississippi River. Even a shift in the wind may bring land out of water or submerge it. The areas now above mean high tide cannot be identified without an enormously costly survey, but the most likely areas are narrow levees on either side of the numerous channels. The sole distinguishing feature is that the levees, and sometimes the land for a short distance back of them, are a few inches or a few feet higher than the surrounding areas. It would have been utterly capricious for Congress to retain such winding tentacles while relinquishing all claim to the areas through which the tentacles run.

If there were any reason for Congress to give the States the tidelands, the lands under water and any man-made land in the marginal sea while retaining lands naturally formed as islands, then the seeming capriciousness of the distinction as applied to the Mississippi delta could be explained as the inevitable result of the necessity of drawing a sharp line on a finely graduated scale. In this instance, however, there was no reason for Congress to make the basic distinction. As pointed out above, every reason for giving the States the submerged lands and tidelands applied equally to lands formed as naturally-made Thus, it is extremely unlikely that Congress believed that the words "all filled in, made, or reclaimed lands which were formerly lands beneath navigable waters" would cover accretions to upland parcels. Congress was concerned with what might be claimed under United States v. California, i.e., the bed of the waters and land which might be claimed to go with the bed. Conceptually, accretions are not considered formerly beneath the water, but an expansion or enlargement of the upland parcel. They do not raise land above the water; they move the boundary line. Title does not go to the owner of the bed or of the waters but to the owner of the shore as part of his original holding

Section 2(a)(1) plainly confirms this interpretation as applied to inland waters, for in conjunction with section 3 it grants the States land up to the ordinary high water mark "as heretofore or hereafter modified by accretion, erosion and reliction.” Obviously, this contemplates a shifting line with titles changing with accretion and erosion or reliction.

Obviously, section 2(a) (3) is not intended to undo the limitation imposed upon the grant by the quoted words of subdivision 1. Its evident purpose is to embrace not accretions but lands which, when they became fast lands, were within the area with which Congress was concerned-lands which would be under the water but for the fact that they had been "raised” by human or natural forces and which might be claimed as part of the bed.

Parallel reasoning applies to section 2(a)(2). The terms “the line of mean high tide" and "the coast line” connote a boundary line constantly changing as a result of accretion, erosion and reliction. One may fairly ask why Congress did not make this meaning clear in subdivision 2 as it had done in subdivision 1 by speaking of the line "as heretofore or hereafter modified * * *." The answer is twofold. First, the connotation of the phrases “line of mean high tide” and “coast line” was thought too clear to require the additional explanation. Second, the prior words of subdivision 2 did not give rise to the same need for negativing the idea of unvarying limits that might have been supposed to have been created by subdivision 1 if the reference to changes by accretion, erosion and reliction were omitted. Subdivision 1 refers to two dates, one for the purpose of testing navigability and the other, submergence. From this reference it might have been inferred that the line was also fixed as of the latter date. In subdivision 2 no dates, past or present, were necessary; hence there was no comparable inference to dispel.

3. Any remaining danger that reading "filled in, made, or reclaimed lands” to cover naturally-made land would endanger the title of the

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