inland waters of the States. This question arises by reason of the fact that there are awaiting disposition in the Department a number of applications for oil and gas leases in submerged areas of the Pacific Ocean and the Gulf of Mexico below low tide and outside the inland waters of the adjacent States. On September 28, 1945, the President issued Proclamation No. 2667, announcing that the "United States regards the natural resources of the subsoil and sea bed of the Continental Shelf beneath the high seas but continguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control" (10 F. R. 12303). And by Executive Order No. 9633 of the same date, the resources of the Continental Shelf were placed under the jurisdiction and control of the Secretary of the Interior "for administrative purposes, pending the enactment of legislation in regard thereto." (10 F. R. 12305). On June 23, 1947, the Supreme Court held in United States v. California (Original No. 12) that the Federal Government has paramount rights in and power over the 3-mile marginal belt along the coast, "an incident to which is full dominion over the resources of the soil under that water area, including oil” (slip copy, p. 17). The answer to the question submitted by you turns on the construction of the following portion of section 1 of the Mineral Leasing Act, as amended :1 * "That deposits of coal, phosphate, sodium, potassium, oil, oil shale, or gas, and lands containing such deposits owned by the United States, including those in national forests, but excluding lands acquired under the act known as the Appalachian Forest Act *, and those in incorporated cities, towns, and villages, and in national parks and monuments, those acquired under other acts subsequent to February 25, 1920, and lands within the naval petroleum and oilshale reserves, except as hereinafter provided, shall be subject to disposition in the form and manner provided by this act * * It is conceivable that some of the submerged land areas and minerals may turn out to be in one of the categories of lands expressly excluded from the provisions of the Mineral Leasing Act (e. g., naval petroleum reserves). As to them, of course, no problem will arise. In the main, however, this will not be the case. With regard to the submerged lands and mineral deposits that are not expressly excluded from the provisions of the act, they appear at first glance to be included in the phrase "deposits * * * and lands containing such deposits owned by the United States" quoted above. However, the Attorney General has held that this language is limited in its application to the "public lands" of the United States, principally by reason of the presence of the words "public domain" in the title of the act. Therefore, the Mineral Leasing Act is a statute providing generally for the disposition of "public lands." 2 3 Land situated below high-water mark has not been regarded heretofore as included in the term "public lands." * For this reason alone, it may be concluded that the Mineral Leasing Act does not apply to the submerged lands, as they are, of course, below low tide. In fact, in the Government's brief in the California case, the Attorney General so argued (p. 195). Apart from the reasoning indicated above, the Mineral Leasing Act, like other general public land laws, applies to any particular category of lands only if Congress has indicated that such lands are held for disposal under it. For the reasons that follow, I do not believe that Congress has indicated that the submerged coastal lands are held for disposal under the Mineral Leasing Act. In one aspect, the act is clearly inconsistent with any assumption that it was intended to apply to submerged lands. The act contains provisions that The language quoted is from the amendatory act of August 8, 1946 (Public Law 696, 79th Cong., 2d sess., ch. 916, sec. 1, 60 Stat. 950); it is in no material respect different from that used in the original 1920 act, 41 Stat. 437. 240 Op. Atty. Gen., No. 1 (Jan. 3, 1941); 34 Op. Atty. Gen. 171 (1924); see p. 195. Government's brief, United States v. California, United States Supreme Court (Original No. 12). The words "public domain" appear in the title of the amendatory act of August 8, 1946, as well as in the original act of February 25, 1920. Barney v. Keokuk, 94 U. S. 324, 338; Mann v. Tacoma Land Co., 153 U. S. 273, 284; Frederick A. Curtiss et al., General Land Office Decision, September 18, 1934, affirmed by Department February 7, 1935 A-18167 unpublished. See Oklahoma v. Texas, 258 U. S. 574, 599-602; West v. Work, 11 F. (2d) 828, cert. denied, 271 U. S. 689. 6 lands affected by it are to be surveyed and described by the legal subdivisions of the public land surveys, and the public land surveys have not heretofore extended beyond high tide.' Furthermore, as the Court said in its opinion in the California case, "the record plainly demonstrates that until the California oil issue began to be pressed in the thirties, neither the States nor the Government had reason to focus attention on the question of which of them owned or had paramount rights in or power over the 3-mile belt" (slip copy, p. 18). No suit was brought by the Federal Government until May 29, 1945, when an action was brought by the United States against the Pacific Western Oil Co. in the United States District Court for the Southern District of California. That suit was thereafter dismissed by the Government at the same time that it filed the original suit against California in the Supreme Court on October 19, 1945. In the latter suit, the Government took the position (brief, p. 70), and the Court in its opinion agreed (slip copy, pp. 15, 17), that the case judicially raised the issue of Federal versus State ownership for the first time. Therefore, until the Court decided the case in favor of the United States on June 23, 1947, no one could have known with any degree of certainty whether the Federal Government or the States owned this vast area of coastal submerged lands. Consequently, in the absence of evidence to the contrary (and there is none), we cannot assume that Congress intended on February 25, 1920, and August 6, 1946, the respective dates of the original Mineral Leasing Act and the amendatory act, to address itself to these submerged lands when it used in section 1 of the act general language indicating that the act was to be applicable to “* * * lands * * * owned by the United States." * Congress recently enacted the Mineral Leasing Act for Acquired Lands (Public Law 382, 80th Cong., approved August 7, 1947). The "acquired lands" which are the subject of the act are, so far as relevant, defined in section 2 to "include all lands heretofore or hereafter acquired by the United States to which the 'mineral leasing laws' have not been extended * In the same section the term "mineral leasing laws" is defined to include the act of February 25, 1920, and all acts amendatory of or supplementary to it. It is significant that while this legislation was being considered in the House (as H. R. 3022), it was amended on July 23, 1947-a month after the decision of the Supreme Court in the California case-so as expressly to exclude the submerged lands and the Continental Shelf from its purview (sec. 3 of the act; Congressional Record, July 23, 1947, p. 9973). The language which conceivably could have been regarded as including the submerged lands and the Continental Shelf in the absence of the amendment was the reference to lands "to which the 'mineral leasing laws' have not been extended." The reason for the amendment was not discussed in either the House or the Senate (Congressional Record, July 23, 1947, p. 9973; July 24, 1947, pp. 10095, 10157). In adopting it, Congress may be regarded as assuming that the mineral leasing laws, including the 1920 act, as amended, had not been extended to the submerged lands, and, therefore, that such lands would be covered by the new act unless expressly excluded from its provisions. 8 Finally, I should point out that in executing on July 26, 1947, the stipulation in the California case regarding interim oil and gas operations in the submerged lands off the coast of California pending the establishment of the line separating the inland waters of California from the marginal seas, the Attorney General held by implication that the Mineral Leasing Act was not applicable to the submerged land areas. If the act had been applicable to such areas, the stipulation presumably would have been unauthorized. For the reasons indicated above, it is my opinion that the Mineral Leasing Act of February 25, 1920, as amended, does not authorize the issuance of oil and gas leases with respect to the submerged lands below low tide off the coasts of the United States and outside the inland waters of the States. (Signed) MASTIN G. WHITE, Solicitor. • Oil and gas, secs. 13 and 14, 41 Stat. 441, 442, 49 Stat. 675, 676, 30 U. S. C. 223; oil shale 30 U. S. C. 241; phosphate 30 U. S. C. 212; sodium 30 U. S. C. 262; potash, 30 U. S. C. 282. Barney v. Keokuk, 94 U. S. C. 324, 338: Mann v. Tacoma Land Co., 153 U. S. 273, 284; Manual of Instructions, Survey of Public Lands, Department of the Interior, 1930, Reprint 1934, p. 5; Frank Burns, 10 L. D. 365, 369 (1890). 8 Another possible inference is that Congress viewed the submerged lands as acquired rather than as public lands. (See secs. 2 and 3.) And acquired lands were held by the Attorney General to be outside the scope of the Mineral Leasing Act. (See note 2, supra.) OFFICE OF THE ATTORNEY GENERAL, "The honorable the SECRETARY OF THE INTERIOR. MY DEAR MR. SECRETARY: You have asked my opinion on the question whether the Mineral Leasing Act of February 25, 1920, as amended (41 Stat. 437, 30 U. S. C. 181, et seq.), authorizes the issuance of oil and gas leases with respect to the submerged lands below low tide off the coasts of the United States and outside the inland waters within the States. In considering the steps which should be taken to protect the interests of the United States in the submerged lands off the coast of California, following the decision of the United States Supreme Court rendered on June 23, 1947, in United States v. California, No. 12 Original, October term, 1946, one of the questions which your Department and this Department had to examine was whether the provisions of the Mineral Leasing Act required that the procedures set forth in that act be followed with regard to the property which the Supreme Court held in that case to be that of the United States. The Acting Solicitor General and the Solicitor of your Department concluded that the act imposed no such requirement. After consideration I reached the same conclusion, and I now -adhere to it. The stipulations were signed on that basis. Sincerely yours, [Signed] TOM C. CLARK, OFFICIAL STATEMENT RELATIVE TO APPLICABILITY OF MINERAL LEASING ACT TO SUBMERGED COASTAL LANDS Testimony of Secretary of the Interior Harold L. Ickes before the Senate Committee on the Judiciary, February 5, 1946, on Senate Joint Resolution 48 and House Joint Resolution 225, Seventy-ninth Congress: "Implicit in these recommendations is the thought that the Mineral Leasing Act of 1920 is not applicable to submerged lands. A reading of the act will reveal that in many particulars its provisions would not fit the problems presented in the administration of submerged lands. For example, there is the matter of acreage limitation. Another problem relates to royalties and the distribution, if any, of receipts from these lands. More importantly, the problem of the submerged coastal lands was not considered when the act was passed, and Congress is entitled to and should fix its policy with specific reference to these lands. These, however, are matters more properly to be presented at another time and to a different committee” (p. 11 of printed hearings). UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Deryl L. Mayhew, Caliente, Nevada, Plaintiff, v. Julius A. Krug, Secretary of the MEMORANDUM Plaintiff filed an application with the Department of the Interior in 1934 under Section 13 of the Mineral Leasing Act of 1920 (41 Stat. 437 as amended, 49 Stat. 674). This act provided that any qualified applicant could obtain a permit to prospect for oil or gas upon land "wherein such deposits belong to the United States". Plaintiff's application covered a certain tract of land comprising approximately 1,600 acres off the coast of the State of California, and beneath the Continental Shelf. The application was at that time denied on the ground that California and not the United States owned the subject tract. Since that time plaintiff has filed petitions for appeal and rehearing in this matter; so there is no question as to exhaustion of administrative remedies. At the time of the original application Section 13, supra, vested discretionary power in the Secretary with regard to such application in that it merely "authorized" him to grant permits. In 1935 the statute was amended so as to change the discretionary power of the Secretary and thus not only was he to be "authorized" but also he was "directed" to grant permits when such permits had been on file for 90 days prior to the effective date of the act. Once more plaintiff petitioned the Department for a review of his application, and once more his application was denied on the ground that California and not the United States owned the subject tract. In June 1947 the Supreme Court decided United States v. California, 332 U. S. 19. There the Court held that the State of California is not the owner of the three-mile marginal belt along its coast, but that the Federal Government rather than the State had paramount rights in and power over that belt, an incident to which is full dominion over the resources of the soil under that water area, including oil. The case, however, left unanswered the question of the exact location of the boundary lines. As the Court stated: "We may assume that location of the exact coastal line will involve many complexities and difficulties, * * * there is no reason why, after determining in general who owns the three-mile belt here involved, the Court may not later, if necessary, have more detailed hearings in order to determine with greater definiteness particular segments of the boundary." On October 27, 1947 the Court entered its order to the effect "(1) The United States of America, is now, and has been at all times pertinent thereto, possessed of paramount rights in, full dominion and power over, the lands the State of California has no title thereto or * ** * property interest therein. * "(3) Jurisdiction is reserved by this Court to enter such further orders and to issue such writs as may from time to time be deemed advisable or necessary to give full force and effect to this Decree." In 1947 the Secretary of the Interior once more denied plaintiff's application, this time on the ground that the act did not apply to "marginal lands", since such were not "public lands" as contemplated by the statute. This suit resulted, as will be more fully set forth infra. On June 21, 1948, as a result of a petition filed by the United States, and a counter petition by the State of California, praying that the precise boundary as to certain segments of the California coastal area be ascertained, the Court stated (334 U. S. 855): "The Court is in doubt at this time as to what particular segments of the boundary, if any, should now be determined. It is therefore of the opinion that a master should be appointed by the Chief Justice to make inquiry into the subject and to hold hearings, if he finds it necessary, in order to make recommendations to the Court * * * as to what particular portions of the boundary call for precise determination and adjudication," On February 12, 1949 a Special Master was appointed and his report was filed on June 27, 1949. This report recommended that certain segments of the disputed land be surveyed to establish boundaries. The tract covered by plaintiff's application is within one of these segments. Exhibit "A" introduced by the Government demonstrates that the State of California is claiming that this segment lies either within "tidelands" or within the inland sea. On January 30, 1948 plaintiff filed an action in this court in which he sought to have the Mineral Leasing Act judicially determined to be applicable to his application on file. The case now comes before this court on a motion by the Government either for summary judgment or dismissal. It would appear that the Supreme Court has ordered that the original proceeding No. 12 (Calif. v. U. S.) will remain open in order that such further orders may be entered as may be necessary ultimately to settle the entire question of who has paramount rights in and full dominion over specific segments of the continental shelf lying off the coast of California. And not only has the proceeding been held open, but in fact the Supreme Court has received a report of the referee which recommends that the Court undertake to ascertain certain segments of that shelf. Government's Exhibit "A" indicates that the tract which is the subject of the instant controversy lies within one of the particular segments. The res then which is before this court is also before the Supreme Court as part of the original proceeding. Such a situation presents to this court at the outset of the determination a question of whether this court may properly act upon the controversy at the present time. And it would appear to the court that it should not; for any order of the Supreme Court which would result in determining that the subject tract does lie within either inland or tidewaters as is claimed by the State of California, would render any determination of the present question nugatory. If this court were to rule upon the applicability of the Mineral Leasing Act to plaintiff's application, it would in a sense be rendering an opinion which would be of an advisory nature in the event that the Supreme Court were to determine that the subject tract does lie within the sub-marginal lands. The Supreme Court has on occasion voiced its disapproval of such opinions. In Eccles v. Peoples Bank, 333 U. S. 426 (1948) at page 432, the Court stated: "Courts should avoid passing on questions of public law even short of constitutionality that are not immediately pressing." And in Barker Painting Co. v. Local #734, 281 U. S. 462, at pages 463–4 (1930), it was said: "But a court does all that its duty compels when it confines itself to the controversy before it. It cannot be required to go into general propositions or prophetic statements of how it is likely to act upon other possible or even probable issues that have not yet arisen." In view of the foregoing the Court at this time will not attempt to pass upon the merits of the defendant's grounds which are assigned in support of its position. In summary it may be noted that the defendant claims: (1) That is has never owed to the plaintiff any ministerial duty to issue a permit under the Mineral Leasing Act. (2) That the Mineral Leasing Act does not apply to land lying beneath the marginal sea because such is not public land. (3) That in any event the Act expired by its own terms on December 31, 1938, and (4) That this court lacks jurisdiction because of the pending boundary dispute in the Supreme Court. The merits of such arguments must abide a determination by the Supreme Court that the land which is the subject of the present controversy lies within the marginal sea. If it is otherwise, then of course there is no question but that the State of California owns the land and the plaintiff would then have no standing to sue the present defendant. It is, then, the conclusion of the Court that this motion is not ripe for judicial determination, but that it should be held in abeyance, with its rights preserved on the docket, until such time as the Supreme Court has acted in the boundary dispute. Counsel for Plaintiff will prepare proper Order. March 16, 1951. Copy mailed to Wheeler & Wheeler, Esqs. Ralph Boyd and Robert M. Vaughan CHARLES F. MCLAUGHLIN, Judge. [H. Doc. No. 765, 79th Cong., 2d sess.] MESSAGE FROM THE PRESIDENT OF THE UNITED STATES RETURNING WITHOUT HIS APPROVAL THE JOINT RESOLUTION (H. J. RES. 225) TO QUIET THE TITLES OF THE RESPECTIVE STATES, AND OTHERS, TO LANDS BENEATH TIDEWATERS AND LANDS BENEATH NAVIGABLE WATERS WITHIN THE BOUNDARIES OF SUCH STATES AND TO PREVENT FURTHER CLOUDING OF SUCH TITLES To the House of Representatives: I return herewith, without my signature, House Joint Resolution 225, entitled "A joint resolution to quiet the titles of the respective States, and others, to lands beneath tidewaters and lands beneath navigable waters within the boundaries of such States and to prevent further clouding of such titles.” The purpose of this measure is to renounce and disclaim all right, title, interest, claim, or demand of the United States in "lands beneath tidewaters," as defined in the joint resolution, and in lands beneath all navigable waters within the boundaries of the respective States, and to the minerals in such lands. The phrase "lands beneath tidewaters" is defined so broadly as to include all lands, either submerged or reclaimed, situated under the ocean beyond the low-water mark and extending out to a line three geographical miles distant from the coast line or to the boundary line of any State whose boundary at the time of the admission of the State to the Union, extended oceanward beyond three geographical miles. Lands acquired by the United States from any State or its suc<cessors in interest, or through conveyance or condemnation, would be excluded from the operation of the measure. There would also be excluded the interest |