Federal/State Conflict
NRS | Federal Lands | Supreme Court Actions - Submerged Lands
Evolution of the Federal/State Conflict Over Rights to Adjacent Waters & Seabeds
Early History1
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
Critical resource and public fisc interests have been at stake in these cases, including:
- 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
- The right to gold offshore of Nome, Alaska, and sulfur in the Gulf of Mexico.9
- The protection of antiquities (treasure from Spanish galleons) off the Florida Keys.10
- Jurisdiction over offshore wind farms in Nantucket Sound, Massachusetts.11
- Protection of giant kelp beds offshore Channel Islands National Monument from harvesting.12
- 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
- Whether similar lagoons were within the boundaries of the National Petroleum Reserve - Alaska and thereby subject to federal protection.14
- 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
The Court Rejects Both Parties’ Contentions
The Court Turns to the Convention on the Territorial Sea and the Contiguous Zone
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?
What if the Charted Line is Wrong?
Man-Made Structures as Part of the “Coast.”
What Constitutes a “Harborwork”?
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.
The semi-circle test
Determining the Headlands and Natural Entrance Points
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.”
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.
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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).