arms of the sea, and yet that the State possessed no sovereignty, all at the same time; and it would seem to me to be discrimination to say, as an attribute of sovereignty, inland States possessed the beds of all their navigable streams, but coastal States do not possess the navigable waters falling within their boundaries, based upon the same rights now.

The CHAIRMAN. The Senator from Louisiana is always very clear in his statements.

Senator LONG. I hope I am clear, Mr. Chairman.

The CHAIRMAN. Mr. Perlman, we will be very glad to hear from you.

STATEMENT OF PHILIP B. PERLMAN, SOLICITOR GENERAL OF THE UNITED STATES

Mr. PERLMAN. Senator, if I may, I would like to make a statement with respect to the bill before the committee, on S. 940, and then I would like, if I have the permission of the chairman, to discuss the views of Senator Long that he has just expressed, because I do not think they are accurate in some respects, and I would like to discuss them with him.

Senator LONG. I am sure those views have been expressed by the representatives of the States before.

Mr. PERLMAN. I think your idea of history is subject to some discussion.

Senator WATKINS. May I suggest to Senator Long that lawyers are used to having disagreements. We will not even agree on the history, and we will not agree on what decisions mean, and we keep on going back.

Mr. PERLMAN. That is right.

Senator WATKINS. It does not need to be discouraging because we do not agree with him.

Mr. PERLMAN. That is right.

Mr. Chairman and gentlemen, I am Philip B. Perlman, Solicitor General of the United States. I am authorized to say that Attorney General J. Howard McGrath is in complete accord with the views expressed in this statement, which I submit on behalf of the Department of Justice.

When I appeared before this committee on February 19, 1951, S. 940, the measure now under consideration, had not been introduced and was not discussed in the statement made by me at that time. I am therefore deeply grateful to the chairman and to the committee for the opportunity afforded me to be present today for the purpose of presenting the views of the Department of Justice relative to this bill.

S. 940 is, in essence, a proposal to surrender to the coastal States of the Union the rights of the United States to the immensely valuable and vitally important mineral resources in the lands underlying the ocean adjacent to the shores of this country. The area covered by the measure would extend seaward for a distance of three geographical miles or to the seaward boundary of a coastal State where such boundary as it originally existed, or as approved by the Congress, is situated more than 3 miles from shore.

The Department of Justice is emphatically opposed to the enactment of this bill. We are aware, of course, that the proposed legislation has been introduced with the sponsorship of some 35 Senators, 5 of whom are members of this committee, and I should like to assure those members of this committee, and all Senators who have given their endorsement to the measure, that this statement is submitted with all deference to their views in the matter.

The views of the Department of Justice relative to proposals of this character have on several occasions been presented to this and other committees in connection with bills introduced in earlier Congresses. I refer particularly to the statement of Attorney General Clark before the Committees on the Judiciary on March 2, 1948, relative to S. 1988, Eightieth Congress, and to my appearance on October 4, 1949, when this committee was considering S. 155, S. 1545, and certain other bills before the Eighty-first Congress. It was then, and is now, the position of the Department of Justice that legislation such as that proposed in S. 940 should not be enacted for the following

reasons:

1. The several coastal States of the Union do not and never have owned the lands underlying the ocean waters adjacent to this country. The Supreme Court has so determined on four separate occasions. United States v. California (332 U. S. 19); Toomer v. Witsell (334 U. S. 385); United States v. Louisiana (339 U. S. 699); United States v. Texas (339 U. S. 707).

2. The Supreme Court cases brought for the purpose of resolving the question have established that the minerals and other resources situated in such submerged ocean lands belong to the people of all of the States and that the control and disposition of such resources are matters entrusted to the National Government, which acts for all of the States and for all of the people.

3. The National Government should not surrender its rights and obligations in respect to these valuable lands and resources for the benefit of 3 States to the detriment of the remaining 45 States.

S. 940 is based on premises which ignore and contradict the holdings of the Supreme Court, and assume circumstances to be true which the highest Court in the land has said are not true. I shall show, by a detailed analysis of the introductory clauses of section 1-the clauses in which the Congress is asked to set forth the reasons and bases for this legislation that S. 940 cannot be squared with the controlling decisions in this field or with the best interests of the United States.

Proponents of the proposed legislation say to the Congress-and section 1 (a) of S. 940 would in effect recite that the several coastal States of the Union have always owned the lands out under the ocean within their respective jurisdiction boundaries, that such ownership has been exercised in accordance with many pronouncements of the Supreme Court, and that this bill would do no more than restore to those States that which has always belonged to them. This is not an accurate statement, and the Supreme Court has held that it is not accurate. Prior to the decision in United States v. California (332 U. S. 19), in 1947, no one knew for certain the exact status of the lands under the ocean adjacent to our shores, and it was to obtain an answer to this very question that the Supreme Court case against California was instituted. In its opinion in that case the Court held (332 U. S.

at 37) that the question was presented to it for the first time, and even Mr. Justice Reed, who was the only one of the eight members of the Court participating in the California case who believed that California was the owner of the lands involved, observed in his dissenting opinion that

no square ruling of this Court has determined the ownership of those marginal lands * * * (332 U. S. at 43).

It is not correct to say, therefore, that the matter had been settled by many pronouncements of the Supreme Court. If this had been so, there would have been no occasion for bringing the California suit or the subsequent suits against Louisiana and Texas.

Proponents of State ownership urge, however, that certain broad language appearing in earlier decisions, where lands such as those "beneath navigable waters" and "beneath tidewaters" were held to be the property of the States in which they were situated, should be extended to include the lands underlying the ocean. This argument was very clearly and forcefully presented to the Supreme Court in the California proceeding and every case and authority remotely relating to the point was cited and discussed in the briefs and oral arguments. It was found, however, and the Court held, that none of the cases cited had determined the question as to the ownership of lands under the ocean. All of the cases cited were found to involve either tidelands or lands beneath inland navigable waters, and the Court refused to enlarge the rule governing the ownership of such lands so as to embrace submerged ocean lands. The same argument was made on behalf of Louisiana, and again the Supreme Court rejected it.

In this connection, it seems appropriate to emphasize an aspect of this problem which should always be kept in mind. This is the fact that the ownership of lands beneath ocean waters, beyond the shores of this country and outside of inland waters, is an entirely different matter, insofar as legal principle is concerned, from the ownership of tidelands between high- and low-water mark or lands under bays, rivers, and other inland waters. The Supreme Court has on numerous occasions held that the States own their tidelands and the lands under inland navigable waters. The United States does not and never has challenged the ruling in those decisions. But the ownership of lands under the ocean, the principles governing which are derived not from the common law but from developments in the law of nations, is something totally different. Beyond lowwater mark and beyond the seaward limit of inland waters, the domain of international affairs is reached, and different rights and different problems are encountered. It is for this reason that State ownership of tidelands and lands under inland navigable waters is not in any way threatened by the decisions of the Supreme Court in the California, Louisiana, and Texas cases.

Senator WATKINS. May I ask a question at this point? Would the Government be willing to stipulate that they are not in any way involved or in any way endangered by these decisions?

Mr. PERLMAN. Yes, sir; not only would stipulate, but, as the chairman has stated, the Government prepared a bill and asked that it be introduced, and it was introduced, expressly waiving forever any claim to any inland waters.

Senator WATKINS. And the navigable streams?

Mr. PERLMAN. Under all rivers.

Senator WATKINS. Lakes?

Mr. PERLMAN. That is right.

Senator LONG. Did not the Government take a similar position with regard to the marginal sea for 150 years up to the time when California found oil off her coast?

Mr. PERLMAN. No, sir; it did not, and the Supreme Court held it did not.

Senator LONG. Were there not 30 letters from the Department of the Interior in the record in that case, that were presented in that case, where the Secretary of Interior said that the Federal Government did not own this property, and would not claim it?

Mr. PERLMAN. Senator, I do not know how many letters there were. I think there were

Senator LONG. It was stated in the committee report of the Eightieth Congress that they knew there were at least 30.

Mr. PERLMAN. That is true. That happened to be the opinion of the then Secretary of the Interior, when the question was first raised. Senator LONG. Had not the Justice Department gone out and acquired rights and obtained grants from States when the Federal Government wanted to do something on the coastal waters of the States up to that time?

Mr. PERLMAN. No, sir; it had not. As a matter of fact, that same argument was made in the Supreme Court, and you will find in the brief that we filed in the California case that all of those instances were analyzed and it was found that the Government of the United States had on many occasions erected lighthouses and done a number of things without applying to any State for any permission.

Senator LONG. They also had applied for grants, had they not? Mr. PERLMAN. I think there were some few instances, but the reason for that was set forth in the analyses that were made.

Senator LONG. Now, was not this said in the Government's briefdid not the Government in their brief say that "We view this decision as holding the possession of lands beneath the navigable waters to be unsound"? Was that statement made in that brief, "We view this decision to be unsound"-I believe it was the Pollard decision-"however, we do not ask that this decision be reversed. We merely ask that this unsound reasoning not be extended."

Mr. PERLMAN. I think that you are correct in that.

Senator LONG. Now, have you not, as Solicitor General, asked the Supreme Court to reverse opinions that have been rendered before? Mr. PERLMAN. Yes; we have done that; we have asked the Supreme Court to overrule prior decisions, and it has been done in some cases. I happened to just think of one that has occurred since I have been Solicitor General, where the Supreme Court decided the principle in one term and reversed that same principle in the succeeding term. But that circumstance, when it occurs, has no application here, because there is no longer any question, Senator, that the United States has no claim and will have no claim, and is willing to surrender any claim that anybody might think it could ever raise.

Senator LONG. You do not think the States would have had any difficulty in getting the United States to surrender its claim so long as we only had soil and shells off our coast, but once we discovered oil, it was a horse of a different color.

How could we ever know, if we ever discover anything of great value underlying inland waters, that a future Solicitor General would not take the same attitude you took with regard to marginal waters?

Mr. PERLMAN. The answer to that, Senator, is found in the circumstances, the facts, that surround this very situation. We are interested at the moment in minerals and in oil. There are great pools of oil that are within inland waters, and under inland waters. The United States is not asserting, and has not asserted, any claim to them; and in your own State there is a great production at the moment in what we know, and what we admit and concede to be, inland waters, and we do not want to make any claim. We do not want to be understood as making any claim. We do not think we have any right to it.

Senator LONG. Well, the point that I have in mind is that even though we may be willing-Congress might be willing to go along and protect States with regard to inland waters, it would seem somewhat unfair to those of us who represent coastal States that we would protect States' claims based on the theory that State sovereignty included the ownership or possession, certainly the fee-simple title, to the beds of navigable waters within their borders, but simply to draw a distinction that it did not protect the beds of navigable waters within their borders, but outside inland waters, and we would feel that if the inland States were to possess the beds of their waters, that certainly the coastal States should have the same consideration.

Mr. PERLMAN. Well, they do. The coastal States have the beds of their inland waters, but the principle is different when you come to reaching the ocean's edge, and the low-water mark, or a line that is drawn in substitution for a low-water mark, where you are dealing with the mouth of a river and you have no low-water mark as such, but where you can draw a line between what are inland waters and what are the waters of the marginal sea.

Senator LONG. I am sure you understand the position of a State such as Louisiana, however, which feels, "Well, yes, it is fine to pass legislation that would protect all the inland States; but why make the distinction that would adversely affect just our coastal States?" The CHAIRMAN. Well, it does not.

Mr. PERLMAN. It does not. You have your inland waters, and you take the oil out of your inland waters without regard to the United States, because the United States has no authority and no right to make any claim.

The CHAIRMAN. In the interim bill, it is clearly specified that the right of the States to inland navigable waters is to be protected. There is no question about that.

Mr. PERLMAN. May I finish this statement?

Senator LONG. It seems to me that the Federal Government could make a very good case, certainly logically, every bit as strong as the case it made with regard to the case of Louisiana and California for their marginal sea, against the inland waters of every State in the Nation; and it seems to me that the fact that the Federal Government does not care to make it is a sort of divide-and-conquer technique. "We will take all of Louisiana this time, and later on we might be able to find something else that we are interested in."

The CHAIRMAN. If the Solicitor General will permit I would like to answer that inasmuch as it was raised after my opening statement.