Federal/State Conflict

 Dann Blackwood (USGS).

NRS | Federal Lands | Supreme Court Actions - Submerged Lands

Evolution of the Federal/State Conflict Over Rights to Adjacent Waters & Seabeds

Early History1

Offshore oil drilling. Photo courtesy of offshore energy and minerals management, DOI.Until the 1940’s, the federal government had assumed that the Supreme Court decisions2 according to the states title to submerged lands beneath navigable waters applied to both inland waters and the territorial sea off their coasts. With the knowledge, gained in the 1930’s, that California’s offshore lands had oil and gas fields accessible by modern technology, the United States reassessed its position. Following consultations between Secretary of the Interior Ickes and President Roosevelt, the Attorney General went directly to the Supreme Court to seek a declaration that it possessed superior rights to California to the submerged lands out to three nautical miles.

California asserted that the original states had entered the union with internationally recognized three mile sovereignty, and that the “equal footing” doctrine meant that it succeeded to the same rights when it became a state.3 The Court found that no such internationally recognized claim existed in 1776; rather the assertion of three mile sovereignty had been initiated later, and protection and control over the area was consistently a function of federal sovereignty vis-à-vis other nations. The Court concluded that the same rationale that gave the states paramount rights in inland waters led “to the conclusion that national interests, responsibilities and therefore national rights are paramount in waters lying to the seaward in the three-mile belt.”4

The coastal states were perplexed by this turn of events, and began even before the Court’s decisions to seek a legislative fix, returning to them what they believed to be their ownership rights. Early bills were vetoed by President Truman. The issue became a matter of presidential politics, and with the election of President Eisenhower the Submerged Lands Act became law on May 22, 1953. Public Law 31, 83rd Congress, 1st Session; 67 Stat. 29; 43 U.S.C. 1301 et seq.  

The Submerged Lands Act

The Submerged Lands Act (“SLA”) granted to the coastal states submerged lands, with all of the attendant natural resources, to a distance of three nautical miles from their coast lines, defined as the line of ordinary low water and the seaward limit of inland waters. 43 U.S.C 1301, 1311, 1312. The five Gulf Coast states were given an opportunity to prove the existence of boundaries up to 9 nautical miles. Id. Areas that had been previously acquired by the federal government or set aside for its use were explicitly excluded from the grant. 43 U.S.C. 1313.5

Not all of the coastal states were happy. Alabama and Rhode Island, with negligible maritime coasts compared to the other coastal states, sought to have the Supreme Court declare the Act unconstitutional on the grounds that Congress lacked the power to dispose of lands held in trust for all the states. They also argued that the disposal violated the “equal footing” doctrine by virtue of the preference for the Gulf states and the notion, believed to be fact, that only certain states had valuable offshore minerals. The Court summarily denied their motions to file complaints, ruling that notwithstanding that federal property was held in trust, the power of Congress to dispose of it is “without limitation.”6

Any hope that the SLA would put an end to litigation was short lived. It gave rise to a succession of original actions in the Supreme Court in which the Court fleshed out the precise delineations of the coastal states’ offshore lands as against the more seaward territorial waters of the United States.7  

The Interests at Stake

Glacier Bay National Park. Courtesy of NPS.Critical resource and public fisc interests have been at stake in these cases, including:  

  1. The right to billions of dollars in royalties from offshore oil and gas deposits. These disputes centered on the western Gulf of Mexico, California, and Alaska.8 
  2. The right to gold offshore of Nome, Alaska, and sulfur in the Gulf of Mexico.9
  3. The protection of antiquities (treasure from Spanish galleons) off the Florida Keys.10 
  4. Jurisdiction over offshore wind farms in Nantucket Sound, Massachusetts.11 
  5. Protection of giant kelp beds offshore Channel Islands National Monument from harvesting.12
     
  1. Whether certain coastal lagoons important to the migrating Porcupine Caribou herd and water fowl were within the boundaries of the Arctic National Wildlife Refuge.13
  2. Whether similar lagoons were within the boundaries of the National Petroleum Reserve - Alaska and thereby subject to federal protection.14
  3. Whether the Glacier Bay portion of Glacier Bay National Park, Alaska was excepted from the SLA grant, permitting the Park Service to limit cruise ship access and prohibit commercial fishing.15

In order to make these determinations, however, the Supreme Court needed first to resolve a fundamental question: where was the Court to look for definitions that would provide certainty of expectation as between the federal government and the coastal states, as well as consonance with the interests of the United States vis-à-vis other sovereign nations?  

The Supreme Court uses International Law to Interpret the SLA in United States v. California

The SLA extended the states’ offshore boundaries seaward “from the coast line.” SLA § 2 (b). But what exactly was “the coast line”? The SLA defined “coast line” as the composite “line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters.” SLA § 2 (c).16 The SLA did not define “inland waters,” and it therefore became critical to coast line determination to establish a meaning for this term. To do that the Supreme Court turned to international law.  

Case Beginnings

In proceedings following the Supreme Court’s 1947 decision establishing paramount rights in the Federal Government to the territorial sea offshore California, the State claimed that the seabed within a line connecting islands offshore its southern coast, some as far as 50 miles from the mainland, were “inland waters,” belonging to it. The Federal Government maintained before the Special Master that the “inland water” status of such bodies should be determined by reference to its own position in international relations, which did not claim or recognize as “inland” the waters at issue. The Special Master adopted the Federal Government’s position, and the matter went before the Court in 1952 with exceptions taken by both sides. However, before any action was taken, the SLA became law.
The bed of the Pacific falls away quickly off the California coast, and offshore technology at the time limited oil and gas exploration and production to the nearshore area, all of which fell to California under the SLA under anyone’s definition of “coast line,” and the Special Master’s report lay dormant for ten years. By 1963, however, oil and gas exploration had moved far enough off shore that the precise limits of the 3-mile grant became important. The case was revived, and the parties’ contentions became the starting point for the Court’s historic ruling on how “coast line” was to be determined under the SLA.  

The Court Rejects Both Parties’ Contentions

In the renewed proceeding the Federal Government essentially reasserted its original stance, arguing that its international position at the time of the passage of the SLA should be determinative. California asserted that Congress had intended in enacting the SLA to confirm to the states all waters “which the States historically considered to be inland.” United States v. California, 381 U.S.139, 149 (1965). The Supreme Court declined to adopt either position, declaring that Congress had intended neither that it “rubber-stamp the statements of the State Department as to its policy in 1953,” id. at 164-65, nor that it adopt “a coast line dependent upon each State’s subjective concept of its inland waters.” Id. at 159-60.
Instead, the Court concluded from an examination of legislative history that Congress meant to leave the definition of “inland waters” to the Supreme Court itself. Id. at 150-60, 164. Having so determined, it proceeded to the task.  

The Court Turns to the Convention on the Territorial Sea and the Contiguous Zone

The Court first noted that it had previously decided “that ‘inland waters' was to have an international content since the outer limits of inland waters would determine the Country's international coastline.” Id. at 162. From that critical premise, the Court went directly to the Convention on the Territorial Sea and the Contiguous Zone (the “Convention”), approved by the Senate and ratified by the President in March of 1961, and entered into force September 30, 1964, some eleven years after the passage of the SLA. In the Convention it found a “settled international rule defining inland waters,” for use in interpreting the SLA. Id. at 163.
With this bold stroke, the Supreme Court established an international reference point for the resolution of all subsequent disputes between the States and the Federal Government over territorial sea boundaries, stating broadly:  
It is our opinion that we best fill our responsibility of giving content to the words which Congress employed by adopting the best and most workable definitions available. The Convention on the Territorial Sea and the Contiguous Zone Â… provides such definitions. We adopt them for purposes of the Submerged Lands Act. This establishes a single coastline for both the administration of the Submerged Lands Act and the conduct of our future international relationsÂ….
Id. at 165. Moreover, the Court ruled that its own determinations made pursuant to the current Convention definitions would be conclusive regardless of subsequent changes in the Convention, for “[a]llowing future shifts of international understanding respecting inland waters to alter the extent of the Submerged Lands Act grant would substantially undercut the definiteness of expectation which should attend it.” Id. at 166.17 

The Tidelands Cases

The Supreme Court’s determination that the Convention supplied the workable definitions for coast line determination did not spell an end to litigation between the states and the Federal Government. The often cryptic treaty principles for identifying the “coast line” from which zones of maritime jurisdiction are to measured have given rise to a number of cases involving how the principles are to be applied to specific geographic features.

The Federal Litigation Position

The Federal position on its coast line is determined by the work of the Ad Hoc Committee on Delimitation of United States Coastline, established in 1970 and comprising representatives from the Departments of State, Commerce, the Interior, Homeland Security (Coast Guard) and Justice. Applying the Convention principles to succeeding editions of official government charts of the U.S. coast line, and taking into account Supreme Court decisions and other new information requiring adjustments, the “Coastline Committee” produces an up-to-date federal boundary position for litigation.

Principles which have been established by the Supreme Court.

The coast line from which maritime zones are to be measured under the SLA is a composite of two demarcations: the low-tide line along an open coast and the line demarking the mouths of internal waters where the coast is indented with bays, rivers and harbors. Each of these factors has been the subject of intense litigation as the states and the federal government jockey over how the “normal baseline” referred to in Article Three of the Convention should be established.

Low-Water Line Issues

Which Low-Water Line?

While the use of the phrase “low water line” might seem to the layman not to admit of variation, in fact different “low water” lines can be created. Small differences in that limit can be significant regarding who has rights to the exploration of oil and gas in a given area. Furthermore, use of an extreme low water line can increase the likelihood of a low-tide elevation appearing within the otherwise applicable three nautical miles. This event, under Article Eleven of the Convention, would extend the state’s territorial waters. Conversely, the location of a low-water line may impact whether an indentation in the coast line can be treated as a “bay,” entitling a state to construct a base line at the bay’s mouth. See Convention, Article Seven.
In United States v. California, the Federal Government urged that where there were two diurnal low tides of unequal height, the low water line should average all such tides; California urged that only the lower of the diurnal low tides be considered in the averaging. 381 U.S. at 175-76. The Convention elaborates the “low-water line” starting point by stipulating that it is to be that line “as marked on large-scale charts officially recognized by the coastal state.” Convention, Article Three. The Court interpreted the SLA to conform, and relied on the fact that the official charts of the Pacific Coast prepared by the United States Coast and Geodetic Survey utilized the lower low-water line, to decide the matter in California’s favor. 381 U.S. at 175-76. From that point on it was clear that the line chosen by the Federal Government’s official charting agency would be the presumptive low-water line for purposes of the SLA.

What if the Charted Line is Wrong?

Neither the Federal Government nor the states are bound by the charts from offering evidence of a low-water line more favorable to their claims. The issue here is not the proving up of a new line on the basis of new principles, but whether the line is in error according to the principles utilized by the charting agency for the coast in question. 18In United States v. Louisiana the State sought to preclude the federal government from disclaiming the charted line to prove a more landward line. The Special Master, referring to Supreme Court direction in the Louisiana Boundary Case19, disagreed, and proceeded to consider expert evidence to determine the location of extensive areas of the Louisiana coast line, sometimes to the benefit of the State and sometimes to the federal benefit.
In another case, California argued that a chart which had measured the baseline in some instances from piers rather than the natural coastline bound the federal government notwithstanding its international position to the contrary. The Special Master took evidence from the State Department as to the federal government’s position and offered evidence demonstrating actual error in the construction of the charted line. The Special Master credited both, and the Supreme Court agreed, noting, as had the Special Master, that the chart contained a disclaimer of the charted line’s accuracy.20  

Man-Made Structures as Part of the “Coast.”

It seems counterintuitive that structures put in place by the coastal state could augment its territorial sea as against the federal government, and that is what the United States argued in the California case, where the State sought to measure from the accretion occasioned by a groin extending beyond the original shoreline. The Special Master rejected the federal position, and the Supreme Court agreed.21 Neither was concerned with the federal government’s charge that the states would use their position to push their territorial seas outward; all construction in navigable waters must be approved by the federal government, and the SLA consequences could be a subject of negotiation in the approval process. A subsequent special master explicitly stated that the United States could condition such construction on an agreement that it not alter the SLA boundary.22
This is the course that has been taken. The United States Army Corps of Engineers regulations require that the agency determine whether a proposed project will have SLA boundary consequences, and if so, consult with the Departments of the Interior and Justice prior to issuing a permit.23 A number of permits have been issued only after the state has agreed to waive any extension of its SLA rights that might otherwise accrue. The Supreme Court validated the federal government’s authority to do so in a challenge by Alaska.24
While the issue of accretions caused by the building of groins was settled, other questions arose regarding whether structures built by the State had the attributes necessary to constitute a baseline for SLA purposes.  

What Constitutes a “Harborwork”?

Article 8 of the Convention stipulates: “For the purpose of delimiting the territorial sea, the outermost permanent harbour works which form an integral part of the harbour system shall be regarded as forming part of the coast.” By supplemental decree in the California litigation, the Supreme Court expressly adopted the Convention’s definition for the purposes of implementing the SLA.25 What constitutes a “harbor work,” however, has been tested as states attempt to stretch the term to cover coastal projections which could augment their territorial claims under the SLA. Clearly structures, such as breakwaters, intended to enclose coastal areas to provide anchorage and shelter are included.26 And although they have no similar harbor-creating function, permanent jetties constructed to prevent beach erosion are used for baseline purposes. California, supra. At the other extreme, dredged channels, which have no “low-water line,” cannot be treated as harbor works, the Supreme Court making clear that Article 8 does not provide an alternative “method” for calculating the baseline, but rather identifies specific raised structures which can be considered part of the coast.27
The California coast has few harbors, but numerous coastal piers, and California argued that the piers qualified as harbor works as defined in the Convention. Joining argument on this issue, the federal government pointed out that the piers neither provided shelter for vessels from weather, nor did they protect the beach from erosion, and further urged that they were not “permanent” as required by Article 8. The Special Master found that the Convention provided no guidance on the issue, and rejected both parties’ contentions. Instead, he resorted to a treatise which called for inquiry into “whether Â…[such structures] create in the coastal state any particular interest in the surrounding waters that would otherwise not existÂ….”28 The master then concluded that the California piers create no such interest. California took exception, but the Supreme Court adopted the Special Master’s position.29  

Islands – the Dinkum Sands Case

Under the Convention, islands over which a country claims sovereignty have their own territorial seas measured in accordance with the proscriptions applicable to the mainland coast. With respect to those islands that the coastal states had historically considered as within their boundaries, the SLA conveyed such islands’ territorial seas to the states. 43 U.S.C. §§ 1301, 1311(a).

Article 10 of the Convention defines an island as “ a naturally formed area of land, surrounded by water, which is above water at high tide.” The most famous case involving island definition involved a feature known as “Dinkum Sands,” part of a chain of barrier islands and shoals that parallel the Arctic coast of Alaska. It was often underwater, with small areas that occasionally rose above the sea. If classified as an island, Alaska would have rights to the territorial sea for the surrounding three miles. If it were merely a “low-tide elevation,” Alaska could claim no benefit, for it lay more than three miles from the mainland or the nearest acknowledged island. See Convention, Article II(2).30

Dinkum Sands had, since the early 19th century, appeared and disappeared from charts of the area, but when the Department of the Interior (DOI) first published leasing maps of the area it followed the most recent nautical chart and indicated the feature as an island, conceding a three mile belt around it to Alaska. However, an Arctic expert with DOI questioned its existence, and failing agreement with the State, the matter was joined before the Supreme Court.

In winning the day, the Federal Government relied on a legal argument, supported by the testimony of an international law expert on the law of islands. It was uncontested not only that Dinkum Sands was sometimes above and sometimes below mean high water, but also that the high points of the shoal appeared in different places at different times. Based on these facts, the federal government argued that Article 10 of the Convention does not countenance such an “ambulatory island.”31 The Special Master agreed, concluding that Article 10 requires that a feature be “at least ‘generally,’ ‘normally,’ or ‘usually’” above mean high water to qualify as an island.32 The Supreme Court elaborated on the issue in a way even more favorable to the Federal Government, holding that insular status under Article 10 could not be conferred on a feature “that exhibits a pattern of slumping below mean high water because of seasonal changes in elevation.”33

Internal Water Closing Lines 

What is a Bay?

The other aspect of a territorial sea’s baseline in the composite definition of coast line in the SLA is made up of a series of imaginary lines separating inland water bodies from the open sea. In the original actions, issues regarding bays, rivers, ports have all occasioned litigation over the demarcation of these lines.

Dunes on Sea Coast. Courtesy of DOI.The issue of determining what, among various coastal indentations, constitutes a bay under the Convention, is a two-part test, the first general, the second, the “semi-circle test,” capable of measurement. A bay must first meet the Convention definition of “a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast.” Convention, Article 7(2). It must separately have an “area Â… as large as, or larger than, that of the semicircle whose diameter is a line drawn across the mouth of that indentation.” Id.34
As to the first issue, a number of factors have been ruled on in determining the meaning of “landlocked.” Some form of identifiable headlands, be they bluffs or low elevations, is necessary. Id. Another approach is to compare the width of proposed closing lines with the depth of the indentation. A ratio approaching the point where the indentation was half again as deep as wide at the mouth suggested to one Special Master that more than “a mere curvature” was at hand.35
A more historically interesting approach is to examine whether the waters would be considered landlocked from the viewpoint of a mariner. Although this approach resists objectivity, the United States successfully invoked it in obtaining a ruling that Block Island Sound is not a bay. The Court stated: “[w]e agree with the general proposition that the term ‘landlocked’ ‘implies both that there shall be land in all but one direction and also that it should be close enough at all points to provide [a seaman] with shelter from all but that one direction.’”36 

The semi-circle test

Even if the “landlocked” requirement is met, the body of water must nevertheless pass the “semi-circle test.” It is in the coastal states’ interest, in applying the test, to maximize the water area which would be measured within the indentation, so that it will exceed the hypothetical semi-circle, and thus avoid disqualification from internal waters status. This effort was nowhere more in evidence than in the State of Louisiana’s attempt to include substantial portions of the Mississippi River, and various subsidiary bays, within East Bay, which appears at the southern tip of the Mississippi Delta, and contains an extremely productive oil and gas field. Unless they were able to do so, East Bay would not meet the semi-circle test, and the State’s right to oil and gas production royalties would be delimited by measurement of three miles from the shoreline rather than from a line drawn across the “mouth.”
Louisiana contended that Article 7’s mandate to measure an indentation according to “the low-water mark around the shore of the indentation” required the Special Master in applying the semi-circle test to follow the low water line wherever it goes, including up the tributary rivers. Alternatively, the State argued that rivers should be included in the area waters to the limits of tidal effect. Each of these arguments, in the case of the Mississippi River, would encompass vast water areas beyond East Bay proper, creating a water body far exceeding that enclosed by a semi-circle drawn on a diameter of its mouth. They were rejected by the Court.37
Louisiana argued in another case for the inclusion of subsidiary bays under the follow-the-water-line theory. The United States countered that wide mouth bays opening on to a larger bay should be included in the area measured, and bays connected by only a narrow channel should not. It prevailed.38  

Wetlands and Sunset. Courtesy of DOI.Determining the Headlands and Natural Entrance Points

The headlands of a bay are those geographical features which enclose the landlocked waters, and the bay closing line is to be drawn between the “natural entrance points” on those features as provided in Article 7(3) of the Convention. Locating these termini is often the most difficult problem associated with applying the principles of Article 7. There has been a quest to formulate objective tests to produce a line that “separates the landlocked waters from those waters which are not landlocked.”39 Subjective determinations may produce anomalous results, especially in the case of a body of water which might be alternatively characterized as a double-headed bay, or a bay with a singular seaward bulge in the middle.
The question of the use of islands as headlands has presented a fertile subject for litigation, for while one would expect that in the normal case bays would be created only by promontories from the mainland, that outcome is not always reasonable. In the marshy and broken coastline of Louisiana, for instance, the Supreme Court has concluded that although portions of sea marsh were surrounded by water, they were not “true” islands, the low-water mark for measurement purposes need not “be continuous,” and such proximate islands might be “so closely assimilated to the mainland as to be a part of it,” and so form the headland of a bay.40
In the Rhode Island and New York Boundary Case the Supreme Court considered whether Long Island should be considered part of the mainland, thereby creating a juridical bay out of Long Island Sound.41 In this case the common sense appreciation, that Long Island is in all respects a part of the mainland, found a parallel in the application of the five geographic factors identified by the Court for determining island assimilation: size of the feature; distance from the mainland; depth and utility of intervening water; origin of the land forms; and shape and orientation. The island is large in comparison with the East River which separates it from the mainland; the East River is more “riverine” than an open body of water, and in its original state was not conducive to navigation; Long Island’s distance from the mainland is miniscule compared to its overall length; and the two areas had a common geologic history. The Sound was a juridical bay and its submerged lands the property of the adjoining states.  

Overlarge Bays

Even if all the characteristics adjudicated result in a determination that a “bay” is created, providing the state in the normal case with territorial sea measured from its closing line, that principle does not apply if the closing line exceeds 24 miles. Convention Article 7(4). In that case, “a straight baseline of twenty-four miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length.” Id. Article 7(5).

Enclosing the maximum water area is the only criterion for locating the 24-mile fallback line. The area enclosed need not meet any of the criteria for being “landlocked.” The line need not run between natural headlands. Nor must the enclosed area meet the semi-circle test.

Historic Inland Waters

A popular claim in the original actions if a State hopes to get jurisdiction over a water body that doesn’t meet the geographic requirements for an Article 7 bay is to avail itself of the Convention’s exception from those requirements for “so-called historic bays.” Convention, Article 7 (6).

Relying on a United Nations study to address the lack of definition of the term in the Convention, the Supreme Court has accepted the proposition that historic bays are water areas over which the “coastal nation has traditionally asserted and maintained dominion with the acquiescence of foreign nations.”42 Three showings are necessary to meet this principle: (1)the exercise of authority over the area; (2) the continuity of this exercise of authority; and (3) the acquiescence of foreign nations.43 And where there is a federal disclaimer of jurisdiction, either in the form of opposition to the state claim, or as represented on official charts, evidence of the state’s historic waters claim must be “clear beyond doubt.”44

Two Supreme Court opinions which reached opposite results on this question shed light on the stringent requirements imposed on states who wish to avail themselves of this claim, one involving Mississippi Sound, a shallow body of water lying off the Mississippi and Alabama coast and bounded by a series of barrier islands, and another involving a somewhat less defined Alaskan “sound” lying between that State’s coast and the Beaufort Sea.

In the case of Mississippi Sound, the critical factor in determining that the waters were historically attached to the United States proved to be a pronouncement of the Supreme Court itself, and a later concession before the Court by the United States.45 In an early twentieth century case adjudicating the boundary between Louisiana and Mississippi, the Court declared the Sound to be “wholly within the United States,” and proceeded to construct the boundary upon a principle applicable only to inland waters.46 Some 50 years later, the United States, briefing the status of the Sound in a tidelands case, made statements referring back to the earlier decision, which the Court took as a concession. These concessions, more than Mississippi Sound’s local geography and history, were critical in establishing the public, open and continuous claim of the United States vis-à-vis foreign nations that is necessary for historic waters status.47

The Alabama and Mississippi Court, however, also appeared to rely in part on a historical and publically declared policy of the United States to treat as “inland” waters bounded by barrier islands where no entrance exceeded ten miles in breadth. Alaska, without the specific history of a federal claim that was present in Alabama and Mississippi, sought to make capital out of this finding in claiming that its own barrier-island-bound waters were inland. The United States, who had objected in the Alabama and Mississippi case to the use of general boundary limitation principles to determine specific cases, asserted successfully before the Special Master that the ten-mile principle had not been espoused consistently, and the Supreme Court rejected Alaska’s claim.48 In all events, the Supreme Court, has made clear that specific evidence of a national historic claim to the water body at issue is necessary: proof that the United States adhered to certain favorable boundary limitation principles at the time of statehood will not by itself suffice.49

Although historic waters are a claim of the United States vis-à-vis foreign nations, assertions by state officials can be used to evidence a historic claim.50 It is equally clear that where international law recognizes the right of a coastal nation to regulate in the territorial sea, assertions of jurisdiction over such waters does not convert them to inland waters. Thus, evidence of fisheries enforcement by federal and state governments in Cook Inlet did not support Alaska’s claim that it was a historic bay.51 Similarly, in light of the accepted view that maritime nations have special rights in the continental shelf appurtenant to their coasts, the issuance of mineral leases by a state cannot put a foreign nation on notice of a claim to historic inlands waters.52 State offshore pollution regulation is similarly deemed insufficient, since it is accepted that a state has power to control pollution in the territorial sea.53

Navigation regulation would seem to pose a closer case, but the Supreme Court shut the door equally hard there. Coastal states have twice asserted that navigation regulations are evidence of a historic claim. In the Louisiana Boundary Case the state argued that all waters landward of the Coast Guard's "Inland Water Line" had been historically claimed by the United States as inland. The Court dismissed the allegation without reference to its special master. It concluded that navigation regulations suffer from the same infirmity as does fisheries enforcement when offered as evidence of an inland water claim: “it is universally agreed that the reasonable regulation of navigation is not alone a sufficient exercise of dominion to constitute a claim to historic inland waters. On the contrary, control of navigation has long been recognized as an incident of the coastal nation’s jurisdiction over the territorial sea.”54 What is at issue is the public claim of jurisdiction over the waters to the exclusion of foreign nations; regulation of the territorial sea not manifesting that intent cannot make a body of water “inland.”  

Offshore oil drilling platform. Courtesy of DOI.Conclusion

This article describes only some of the diverse issues which have arisen in the tidelands cases. For a complete treatment, the reader is referred to the Reed volume cited in endnote one. The original actions have served to protect both the federal fisc and resources of nationwide importance. In addition, they have provided a forum for testing the federal understanding of international law before a judicial body and have resulted in substantial judicial precedent regarding the interpretation of international law regarding limits of maritime jurisdiction. The body of law that emerges from the original actions provides a starting point for resolving similar jurisdictional disputes between the United States and its individual states in United States courts and, more significantly, between sovereign nations in international fora.

________________________
1  This article relies extensively on Volume 3 of the Shore and Sea Boundaries series (U.S. Department of Commerce, National Oceanic and Atmospheric Administration, Coastal Services Center, Office of Coast Survey - U.S. Government Printing Office, Washington: 2000), written by Michael W. Reed, formerly an Assistant Chief of the Natural Resource Section and an internationally recognized authority on the subject. Mr. Reed was a principal attorney on the Department of Justice team that litigated many of the Supreme Court original actions discussed in the article. 
2  Martin v. Waddel, 41 U.S. 367 (1842); Pollard v. Hagan, 44 U.S. 212 (1845). 
3  The Constitution contains no guarantee of equality, see Constitution, Article IV , but since the admission of Tennessee in 1796, Congress has provided with respect to each new state that it enters the Union ''on an equal footing with the original States in all respects whatever.'' Pollard makes clear, however, that the doctrine is of Constitutional stature. See 44 U.S. at 222-23, 228-229. 
4  United States v. California, 332 U.S. 19, 36 (1947). See also United States v. Louisiana, 339 U.S. 699 (1950); United States v. Texas, 339 U.S. 707 (1950). Texas was a sovereign nation with a statutory boundary running three marine leagues into the Gulf of Mexico at the time it joined the union. In Louisiana, The Court held for the first time that the “equal footing” doctrine prevented expansion of state sovereignty into the exclusive domain of the federal government, just as it applied to contractions of state sovereignty, as either would produce inequality among the states of the union. 339 U.S. at 719-20. 
5  See United States v. Alaska, 521 U.S. 1 (1997). 
6 Alabama v. Texas, 347 U.S. 272, 273 (1954). See U.S. Constitution, Article IV, Section 3, Clause 2.
7  Less than three months after the passage of the SLA, the Outer Continental Shelf Lands Act became law. Public Law 212, 83rd Congress, 1st Sess., 67 Stat. 462, 43 U.S.C. 1331 et seq. Through it, Congress specifically asserted federal jurisdiction over that portion of the continental shelf lying seaward of the grant to the states. 
8  See United States v. Louisiana, 394 U.S. 11 (1969); United States v. Louisiana, 420 U.S. 529 (1975); United States v. Louisiana (Alabama and Mississippi boundary case), 470 U.S. 93 (1985); United States v. Texas, 339 U.S. 707 (1950); United States v. California, 382 U.S. 448 (1966), United States v. California, 432 U.S. 40 (1977), United States v. California, 447 U.S. 1 (1980); United States v. Alaska, 422 U.S. 184 (1975), United States v. Alaska, 521 U.S. 569 (1992). 
9  United States v. Alaska, 503 U.S. 569 (1992); United States v. Louisiana, 420 U.S. 529 (1975). 
10  United States v. Florida, 420 U.S. 531 (1975). 
11  United States v. Maine et al.(Massachusetts boundary Case) 475 U.S. 89 (1986). 
12  United States v. California, 436 U.S. 32 (1978). 
13  United States v. Alaska, 521 U.S. 1 (1997). 
14  United States v. Alaska, 521 U.S. 1 (1997). 
15  Alaska v. United States, 545 U.S. 75 (2005). 
16  See United States v. California, 381 U.S. 139, 147 (1964). 
17  The Convention’s successor, the 1982 Convention on the Law of the Sea has not yet been ratified by the United States, but its coastline provisions are, for these purposes, identical to those of the Convention and the United States has adopted them as “customary international law.” The Court was equally concerned that the binding together of the ownership issues between the states and the Federal Government with the Federal Government’s international negotiations would inhibit the conduct of foreign relations. United States v. California, 381 U.S.139, 166-67 (1965).
18  That a charted line which departs appreciably from the actual water line can be challenged in court is consistent with the Convention may be inferred from the comments of the International Law Commission engaged in drafting. See Reed, p. 180. 
19  See 394 U.S. 11 at 40-41 n.48 (1969) 
20  United States v. California, 447 U.S. 1, 6-7 (1980). 
21  United States v. California, 381 U.S. 139, 176-77. 
22  United States v. California, Report of the Special Master of August 20, 1979, at 26 
23  33 C.F.R. 320.4(f). 
24  United States v. Alaska, 503 U.S. 569, 585 (1992). 
25  United States v. California, 382 U.S. 448, 449 (1966). 
26  See United States v. Louisiana, 394 U.S. 11, 37 n.42. 
27  United States v. Louisiana, 394 U.S. 11, 36-38 (1969). 
28  McDougal and Burke, The Public Order of the Oceans (1962) 387-88, cited in United States v. California, Report of the Special Master of August20, 1979, at 26. 
29  United States v. California, 447 U.S. 1, 4-6 ((1980). 
30  One of the peculiarities of the Convention is that if a “low tide elevation” is found within the breadth of the territorial sea measured from a nation’s mainland or island, it will become coast line for measuring, and thereby extending, the territorial sea. If it lies outside that measurement, it has no coast line significance. Convention, Article 11. Because Dinkum sands lay outside the breadth of the territorial sea whether measured from the mainland or any acknowledged island, Alaska’s claim depended entirely on it being found to be an “island.” 
31  United States v. Alaska, No. 84 Original, Report of the Special Master (March, 1996) at 290. 
32  United States v. Alaska, No. 84 Original, Report of the Special Master (March, 1996) at 309. 
33  United States v. Alaska, 521 U.S. 1, 27 (1997) (emphasis in original). 
34  United States v. Louisiana, 394 U.S. 11, 54 (1969). 
35  Alabama and Mississippi Boundary Case, Report of the Special Master of April 9, 1924, at 20.
36  United States v. Maine (Rhode Island and New York Boundary Case), 469 U.S. 504, 525 (1985), quoting P. Beasley, Maritime Limits and Baselines: A Guide to Their Delineation, The Hydrographic Society, Special Publication No. 2, p. 13 (1978). 
37  United States v. Louisiana, 420 U.S. 529 (1975). 
38  United States v. Louisiana, 394 U.S. 11, 51 (1967). 
39  See United States v. Maine, Report of the Special Master of October 10, 1984 at 51. 
40  United States v. Louisiana, 394 U.S. 11, 63-65 (1967). The Court at the same time affirmed the general rule that under the Convention offshore islands are not headlands, but create multiple mouths to the bay. Id. at 62 
41  United States v. Maine (Rhode Island and New York Boundary Case) 469 U.S. 504, 514-515, 519 (1985) 
42  United States v. California, 381 U.S. 139, 172 (1965). 
43  Alabama and Mississippi Boundary Cases, 470 U.S. 93, 101-102 (1985). 
44  United States v. California, 381 U.S. 139, 175 (1965). 
45  Alabama and Mississippi Boundary Cases, 470 U.S. 93, 106-109 (1985). 
46  Louisiana v. Mississippi, 202 U.S. 1, 48 (1906). 
47  Alabama and Mississippi Boundary Cases, 470 U.S. 93, 108-109 (1985). 
48  United States v. Alaska, 521 U.S.1 (1997). 
49  United States v. Alaska, 521 U.S. 1, 12 (1997) 
50  United States v. Louisiana, 394 U.S. 11, 76-78 (1969). 
51  United States v. Alaska, 422 U.S. 184, 197 (1975) 
52  United States v. Florida, Report of the Special Master of January 18, 1974, at 46. 
53  Louisiana Boundary Case, Report of the Special Master of July 31, 1974, at 21. 
54  United States v. Louisiana, 394 U.S. 11, 24 (1969).

 

Updated May 12, 2015

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