Alabama v. Texas/Dissent Black

Mr. Justice BLACK, dissenting.

Alabama and Rhode Island asked leave to file complaints to challenge an Act of Congress which purports to convey to some of the states an indefeasible title to and ownership of soil under the Gulf of Mexico and the Atlantic and Pacific Oceans. The Act includes a similar gift of all the 'natural resources within such lands and waters.' Some states are given a three-mile strip of ocean; some states are given about ten miles; most states are given no ocean at all. Some states that are thus receiving gifts claim even more. Louisiana by law makes claims extending 30 miles into the Gulf of Mexico. Texas, it is said, claims that at some points its state borders project as far as 150 miles into the Gulf. If Congress can cede three miles of ocean I see no reason why it could not later cede 150 miles or more.

Alabama and Rhode Island deny that Congress has any power to dispose of the national interest in the ocean or its uncaptured resources. These States assert that whatever power the United States has over the ocean is an inseparable part of national sovereignty which cannot be irrevocably parcelled out or delegated to states, individuals or private business groups. Admitting the power of Congress to control and regulate the use of the ocean and the capturing of its assets, Alabama and Rhode Island deny that any part of this sovereign national control can be vested in any state. Such an unauthorized abdication of essential national sovereignty, so the two States urge, is precisely the effect of the challenged Act. If true, this subjection of Alabama and Rhode Island to regulation by other states deprives them of that 'equal footing' as States which is theirs by right. United States v. State of Texas, 339 U.S. 707, 719, 70 S.Ct. 918, 924, 94 L.Ed. 1221. The Court, however, summarily denies Alabama and Rhode Island a right even to file their complaint. This I assume must be done on the ground that the claims they present are so clearly without merit as to be frivolous. I am unable to agree to this and would grant leave to file in order that the case might be considered in the usual manner. My reasons can be briefly stated.

Ocean waters are the highways of the world. They are no less such because they happen to lap the shores of different nations that border them. Freedom of the seas everywhere is essential to trade, commerce, travel and communication among the nations. These farflung international activities have frequently led to conflict and war. The War of 1812 bears witness to this. In ocean waters bordering our country, if nowhere else, day-to-day national power complete, undivided, flexible, and immediately available-is an essential attribute of federal sovereignty. The present Act might be construed in such way that this power would not be substantially impaired, weakened or made less easily available at all times. But the Court is not construing it that way.

The Act's language purports to convey 'all right, title and interest of the United States' to immense ocean areas as though the ocean could be divided up and sold like town lots. If valid, the Act grants to states all 'proprietary rights of ownership, or the rights of management, administration, leasing, use, and development of the lands and natural resources' of the ocean. The result is that some favored states can say how, when, for what purposes and to what extent other states and their citizens can use the ocean or its resources. This raises serious and difficult questions with respect to the authority of Congress to relinquish elements of national sovereignty over the oceans.

Once private property rights in ocean waters are recognized, I am uncertain where lines can be drawn. The Court's decision today in Federal Power Commission v. Niagara Mohawk Power Corp., 347 U.S. 239, 74 S.Ct. 487, goes a long way toward partitioning up the running rivers of America into conceptualistic segments. Under that case the Government is likely to have to pay large sums if it wishes to use its rivers. Mr. Justice DOUGLAS' dissent in the Niagara Mohawk case should warn us to beware of extending the concept of state ownership of land under inland streams to the vast ocean areas of the world. The results in that case are in my view bad enough. But it could be far worse to permit agencies other than the United States to clutter up the ocean with multitudinous wells and derricks and deeds and leases and timeconsuming lawsuits. All of these things suggest some of the dangers of depriving the United States of complete, unhampered control of the ocean bordering our Nation. We should not forget that the ocean 'belongs to no one nation, but is the common property of all.' Lord v. Steamship Co., 102 U.S. 541, 544, 26 L.Ed. 224.

The Constitution does give Congress power to dispose of and regulate 'Territory or other Property belonging to the United States'. This power, where it applies, has been declared to be unlimited. Congress, the Court has said, 'may deal with such lands precisely as a private individual may deal with his farming property.' Camfield v. United States, 167 U.S. 518, 524, 17 S.Ct. 864, 866, 42 L.Ed. 260. Of course, this authorizes Congress at will to sell or dispose of property it owns as property. It could produce oil from the ocean and sell that property. It could have that oil produced by its agents. But I have difficulty in believing that any state can be granted power under our Constitution to exact tribute from any other state that wants to take oil or fish from the ocean which is the common 'property' of all. And I have trouble also in thinking Congress could sell or give away the Atlantic or Pacific oceans. If it can treat those oceans as 'Territory' within the Constitution's meaning, why could it not deed away thousands of miles of the Atlantic or Pacific at will? I suppose no one would say that the Constitution permits Congress to create new states, at least in part out of submerged lands with state power to govern and rule over the 'Territory' so disposed of. Would this Court sustain the power of Congress to sell the Mississippi or any of the other great navigable rivers of this country? The Court's decisions here and in the Niagara Mohawk case leave me in doubt.

The issues presented are too grave and too doubtful for me to assent to closing the doors of this Court to these States without a more careful consideration of the question than the Court has afforded. For there is a great deal more involved than who gets what oil. Congress has here transferred to the states substantial power over the ocean. This necessarily makes less readily available the Nation's power to protect the freedom of the seas-a power essential to keep peace and friendship among the nations of the world. I cannot agree to deny these States a full opportunity to challenge the Act.