Alabama v. Texas/Concurrence Reed

Mr. Justice REED, concurring.

The per curiam opinion in these cases bases its conclusion that the Submerged Lands Act of 1953, 67 Stat. 29, 43 U.S.C.A. § 1301 et seq., is constitutional on the language in Art. IV, § 3, of the Constitution: 'The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; * *  * .' I agree with that result. Neither Alabama nor Rhode Island has questioned or would question that power, if the applicability of that clause were accepted.

Those states, however, do not accept the applicability of the quoted clause. It is their position that the resources under the marginal sea do not, under United States v. State of Texas, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 1221; United States v. State of Louisiana, 339 U.S. 699, 70 S.Ct. 914, 94 L.Ed. 1216, and United States v. State of California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889, constitute property either of the United States or of any state. The complainant states assert those cases held that the 'paramount rights' in the United States decreed by this Court arose from the sovereignty of the United States and the duty to provide for the common defense. Further, they urge that the rights are held in trust for all the states as a federal responsibility and to cede them to individual states would take away the 'equal footing' among states by extending state power into the domain of national responsibility. See United States v. State of Texas, supra, 339 U.S. at page 719, 70 S.Ct. at page 924, and Coyle v. Secretary of State of Oklahoma, 221 U.S. 559, 31 S.Ct. 688, 55 L.Ed. 853.

This Court is the only court for the trial and discussion of the points upon which Alabama and Rhode Island rely. We have heard complainants on all these points and I desire to state why I think the arguments extracted by the states from this Court's ruling authorities on these same rights do not justify a hearing.

The fact that Alabama and the defendant states were admitted into the Union 'on an equal footing with the original states, in all respects whatever,' 2 Stat. 701, 3 Stat. 489, 5 Stat. 742, 797, 9 Stat. 452, does not affect Congress' power to dispose of federal property. The requirement of equal footing does not demand that courts wipe out diversities 'in the economic aspects of the several States', but calls for 'parity as respects political standing and sovereignty.' United States v. State of Texas, supra, 339 U.S. at page 716, 70 S.Ct. at page 922. The power of Congress to cede property to one state without corresponding cession to all states has been consistently recognized. See, e.g., United States v. State of Wyoming, 335 U.S. 895, 69 S.Ct. 297, 93 L.Ed. 431, and cases cited by the Court.

While this Court did not hold in express terms in the Texas, Louisiana and California cases that the area in question belonged to the United States as proprietor, it did hold that 'the Federal Government rather than the state has 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.' 332 U.S. at pages 38-39, 67 S.Ct. at page 1668. This incident is a property right and Congress had unlimited power to dispose of it.

If the marginal lands were thus declared by the California and following cases to belong to the United States, they were ceded to the states through the subsequent Submerged Lands Act of 1953 by the clause: '(T)itle to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters * *  * are hereby *  *  * recognized, confirmed, established, and vested in and assigned to the respective States *  *  * .' s 3(a), 43 U.S.C.A. § 1311(a). If, on the other hand, the marginal lands were not declared by those cases to belong to the United States, title to them remained in the respective states. Either by original ownership or by the cession of the Act, the lands are now the property of the respective states. The use or control of the undersea area and its resources by the respective states cannot, therefore, now be challenged by any other state on the ground of lack of sovereignty in the challenged state.

The cession challenged here does not affect the power and responsibility of the United States as sovereign to foster and protect against foreign and domestic enemies that area or resources ceded to the proprietorship of the respective states. The Federal Government, of course, owes the same duty to the undersea area that it does to the uplands, the tidelands or the beds of the inland waters. Moreover, the Submerged Lands Act purports to convey to the states only 'the lands beneath navigable waters' and 'the natural resources within such lands and waters' and expressly provides that '(t)he United States retains all its navigational servitude and rights in and powers of regulation and control of said lands and navigable waters for the constitutional purposes of commerce, navigation, national defense, and international affairs, all of which shall be paramount to, but shall not be deemed to include, proprietary rights of ownership, or the rights of management, administration, leasing, use, and development of the lands and natural resources which are specifically recognized, confirmed, established, and vested in and assigned to the respective States and others by section 3 of this Act.' § 6(a), 43 U.S.C.A. § 1314(a). Surely this provision negatives any contention that the Act empowers individual states to alter the historic relationship of the states respecting navigation of the ocean. See Kelly v. State of Washington, 302 U.S. 1, 58 S.Ct. 87, 82 L.Ed. 3; cf. Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460.

The United States holds resources and territory in trust for its citizens in one sense, but not in the sense that a private trustee holds for a cestui que trust. The responsibility of Congress is to utilize the assets that come into its hands as sovereign in the way that it decides is best for the future of the Nation. That is what it has done here. Such congressional determination as the legislation here in question is not subject to judicial review.

Mr. Justice BLACK, dissenting.