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December 20, 1963
United States to accretions to public lands is met by section 5 which excepts from the grant to the States:
“(a) all tracts or parcels of land together with all accretions thereto, resources therein, or improvements thereon, title to which has been lawfully and expressly acquired by the United States from any State or from any person in whom title had vested under the law of the State or of the United States, and all lands which the United States lawfully holds under the law of the State; all lands expressly retained by or ceded to the United States when the State entered the Union (otherwise than by a general retention or cession of lands underlying the marginal sea); all lands acquired by the United States by eminent domain proceedings, purchase, cession, gift, or otherwise in a proprietary capacity; all lands filled in, built up, or otherwise reclaimed by the United States for its own use; and any rights the United States has in lands presently and actually occupied by the United States under claim of right;
[Italics added.] The italicized words are more than sufficient to reserve public lands along the coast and all accretions thereto. The acts authorizing admis
. sion of all the coastal States in which public lands are located-Florida, Alabama, Mississippi, Louisiana, California, Oregon, and Washington-all contain language retaining the public lands. The acts authorizing admission of the States of Louisiana (2 Stat. 641, sec. 3), Alabama (3 Stat. 489, sec. 6), and Mississippi (3 Stat. 348, sec. 4), contain identical language which provides: "That the said convention shall provide, by an ordinance, irrevocable without the consent of the United States, that the people inhabiting the said territory do agree and declare, that they forever disclaim all right or title to the waste or unappropriated lands, lying within the said territory; and that the same shall be and remain at the sole and entire disposition of the United States * * * »
A comparable provision in the California Admission Act (9 Stat. 452, sec. 3) reads: "[The State of California) shall never interfere with the primary disposal of the public lands within its limits, and shall pass no law or do no act whereby the title of the United States to, and the right to dispose of, the same shall be impaired or questioned; * * *9 See also section 7 of the Florida and Iowa Admission Act, 5 Stat. 742; section 4 of the Oregon Admission Act, 11 Stat. 383; and section 4 of the Washington Enabling Act, 25 Stat. 676.
These provisions of the Admission Acts of the coastal public lands States are sufficiently "express” reservations to except such public lands from the grant made by the Submerged Lands Act. To suggest that the foregoing provisions are not express reservations either because
specific parcels are not identified, or because the word “reserve” is not used, would be a hypertechnical construction. The legislative history requires no such reading. Early in the 1953 debate upon the proposed Joint Resolution, Senator Holland voiced the fear that some of the general reservations of public lands might be held to be implied reservations of offshore areas and sea bottoms, and that therefore the proposed exception would defeat the general purpose. At this stage the exception did not include the parenthetical phrase "(otherwise than by a general retention of lands underlying the marginal sea).” It is a fair inference that the phrase was inserted to meet Senator Holland's point. Certainly there is nothing to suggest that he was opposed to the United States retaining what had always been regarded as public lands and the accretions thereto. The first sentence of Senator Cordon's explanation gives rise to some difficulty for he said that it applies to "those facilities and those areas which are used by the Government in its governmental capacity for one or more of its governmental purposes." 99 Cong. Rec. 2619. One can argue about whether public lands fall within this description, but the Senator immediately returned to the main point saying that the provision reserved property “concerning which there has never been, in the history of this country, a question as to the Federal Government's right of ownership."
There can be no doubt that Congress intended each of the various categories of lands excepted by section 5(a) to include accretions. The terms of secton 5(a) make this clear. The customary rights of landowners are set forth in full in the first of the several exceptions listed in section 5 (a). Thus, it speaks of "all tracts or parcels of land together with all accretions thereto, resources therein, or improvements thereon * Each of the other exceptions speaks simply of “all lands." Obviously, the more comprehensive word "lands” was used instead of “tracts or parcels of land" and the explicit reference to accretions, resources and improvements was omitted in order to avoid repetition. There is no reasonable basis for any other conclusion. Congress would not have limited its exceptions of "all accretions thereto, resources therein, or improvements thereon” to lands “lawfully and expressly acquired by the United States" from any State or its grantees and then denied them where the lands were "expressly retained" or "acquired by the United States by eminent domain proceedings, purchase, cession, gift, or otherwise in a proprietary capacity
It may be said that even if the exception in section 5(a) for lands "expressly retained” takes care of the accretions to public lands in the coastal States, it does not meet this problem in the case of certain non
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December 20, 1963
coastal States whose Admission Acts contain no express reservations of public lands. The answer is that one need not look to section 5(a) for a reservation of the accretions to public lands along nontidal waters—the only waters in these noncoastal States. The definition of the lands beneath nontidal waters granted to the States in section 2(a)(1) of the act includes only those lands "up to the ordinary high water mark as heretofore or hereafter modified by accretion, erosion, and reliction * * *.” Thus, the act specifically reserves from the grant any lands formed by accretion along such nontidal waters. Accordingly, the interpretation of “made" to include naturally-made islands presents no problem as to the accretions to public lands along nontidal waters in the coastal and noncoastal States.14
In sum, the legislative history makes it clear that Congress did not intend to affect the titles to upland accretions. Even if one supposes there to be danger of an extension of the act to the upland including accretions, section 5(a) reserves to the United States the accretions along all public lands located on the shore of navigable waters and section 2(a) (1) reserves the accretions on all lands bordering on nontidal waters. In either case, the interpretation of the act to provide for the grant of the naturally-made islands will not cause difficulty in the administration of the public lands of the United States.
In summary the essential, and hardly debatable, elements of the problem are these:
1. When Congress conveyed to the States the lands under the marginal sea and at least the lands therein which were filled in or reclaimed by man. Congress omitted any specific, unmistakable reference to naturally-made islands. Congress conveyed “filled in, made, or reclaimed land"-a phrase whose literal meaning may, but does not necessarily, include naturally-made islands.
2. The only specific application which any Congressman or Senator ever consciously gave the words in debate, was to lands made by man. The words were applied, over and over again, to lands made by man.
14 It is also possible to argue that, although accretions to public lands on nontidal waters are expressly omitted from the grant by section 2(a) (1), they would nonetheless be included by section 2(a) (3) if "made" is interpreted to mean naturally-made. It may be questioned whether this interpretation, if it were ever adopted by any court, would affect any appreciable amount of land. However, to the extent it may have any practical effect, it is ruled out by the express omission in section 2(a) (1) and the obvious congressional intent not to change the rule that accretions belong to the littoral or riparian owners. Certainly this limited problem is not reason enough to restrict the reach of the act to man-made as against naturally-made lands.
No one ever said that they were or were not applicable to naturallymade lands.
3. Every consideration justifying the grant of submerged land was applicable a fortiori to the naturally-made islands in the marginal sea. The legal theory expounded in Pollard's Lessee v. Hagan, which Congress intended to “restore," would have given the States title to these lands. There is no conceivable explanation for an exception for naturally-made islands. Thus, the general purpose and legal theory called for including the naturally-made lands in the grant.
4. There were strong reasons for not excluding the areas in question. In the Louisiana delta region it would often be extraordinarily difficult to determine, both as a matter of legal definition and as a matter of fact, just what lands were naturally-made and what lands were man-made. These practical considerations strongly confirm the application of the general purpose to the words.
5. No serious collateral difficulties result from either interpretation.
Thus, the ultimate question is whether the words “filled in, made, or reclaimed” should be interpreted so as to carry out the general purpose of the statute and give effect to its legal theory as applied to the specific problem of naturally-made islands, or should be confined to the narrower segment expressly mentioned in the debates.
The customary course is to construe Federal grants very strictly in favor of the Government. United States v. Grand River Dam Authority, 363 U.S. 229 (1960); United States v. Union Pacific R. Co., 353 U.S. 112, 116 (1957); Caldwell v. United States, 250 U.S. 14 (1919); Slidell v. Grand jean, 111 U.S. 412 (1884); Leavenworth, Lawrence, and Galveston Railroad Co. v. United States, 92 U.S. 733 (1875). The rule of strict construction, however, is not to be used to defeat the intent of Congress when it unambiguously appears. As a matter of ordinary usage the word “made” is plainly broad enough to cover the lands in question. The reasons for enacting the Submerged Lands Act are as applicable to them as they are to any other lands covered by the act. The legal theory that permeates the act is as applicable to them as it is to the other lands covered by the act. The proposed distinction between man-made islands and naturallymade islands is not only irrelevant to any purpose or legal theory found in the statute but it would give rise to years of expensive litigation. Bearing in mind the character of this legislation it is not inconsistent with the rule of strict construction to give effect to the manifest intent of Congress as applied to a specific, included although unmentioned, instance well within a normal meaning of the statutory words.
February 7, 1964 Accordingly, it is my opinion that the Submerged Lands Act releases any former title of the United States to the lands naturallymade as islands which formerly were lands beneath navigable waters as defined in section 2(a) of the Submerged Lands Act. The Wallis ruling, so far as inconsistent with this conclusion, should be disapproved. Sincerely,
Solicitor General. Approved : ROBERT F. KENNEDY.
CAROLYN C. STOCKMEYER, EXECUTRIX
Decided February , 1964
Oil and Gas Leases: Acquired Lands Leases—Oil and Gas Leases: De
scription of Land An acquired lands lease offer for a tract of land consisting of portions of several
irregularly shaped surveyed tracts of land no part of the boundaries of which coincide with any part of the boundary of the tract applied for need not, in addition to giving a complete metes and bounds description of the tract tied to a corner of the public land surveys, give the section numbers of the surveyed tracts portions of which are included in the tract applied for.
APPEAL FROM THE BUREAU OF LAND MANAGEMENT
Carolyn C. Stockmeyer, Executrix for the Succession of Edwin W. Stockmeyer, deceased, has appealed to the Secretary of the Interior from a decision dated July 13, 1962, by the Division of Appeals of the Bureau of Land Management which affirmed a decision of the Eastern States land office dismissing the protest of Edwin W. Stockmeyer against the award of a lease in response to S. R. Cain, Jr.'s, oil and gas lease offer, BLM-A 055740, which was filed simultaneously with Stockmeyer's offer, BLM-A 055744, and was awarded first priority in a public drawing of all the simultaneously filed offers.
The protest alleged that Cain's description of the land sought for leasing does not comply with the requirements of departmental regulation 43 CFR 200.5(a), which provides in pertinent part that,
* If the lands have been surveyed under the rectangular system of public land surveys, and the description can be conformed to such survey system, the lands must be described by legal subdivision, section, township, and range. Where the description cannot be conformed to the public land survey, any boundaries which do not so conform must be described by metes and bounds, giving courses and distances between successive angle points with appropriate ties to established survey corners.