United States v. Louisiana (389 U.S. 155)/Dissent Harlan

Mr. Justice HARLAN, dissenting.

At the outset, it is worth remarking that this case is but an epilogue to our decision in United States v. Louisiana, 363 U.S. 1, 80 S.Ct. 961, 4 L.Ed.2d 1025 and arises out of the reservation of jurisdiction in this Court's decree in that proceeding. It is not a new case in its own right. Had the Court paused to remind itself of that fact it might have been less ready to cut loose from basic things that were decided there. For reasons stated in this opinion, I believe that the decision upon the issue now in dispute should be in favor of the Texas position.

The question in this proceeding is whether artificial jetties, constituting permanent harbor works, are to be reckoned as part of the base line in calculating the three-league grant of submerged lands in the Gulf of Mexico to which we have already held Texas is entitled under the Submerged Lands Act. The opinions of the majority declare that they may not be, by a beguilingly simple process of reasoning that boils down to this syllogism: the outward limit of Texas' three-league grant is determined under the Act by the location of its maritime boundary 'as it existed' in 1845, when it was admitted to the Union; these harbor works were not in existence at that time; therefore, these works play no part in fixing the location of the boundary. Our decision in United States v. California, 381 U.S. 139, 85 S.Ct. 1401, 14 L.Ed.2d 296, wherein we held that similar harbor works were includable in calculating the outward limit of California's submerged lands grant, has no application, it is said, because California's grant was not dependent upon its 'admission' boundary.

The major premise of the majority's reasoning is, I believe, demonstrably wrong. The assumption that the statutory term 'as it existed' was intended to freeze Texas' seaward boundary (and hence the extent of the Act's grant) as of 1845 is fundamentally inconsistent with the basis on which we held in the initial stage of this case that Texas was entitled to a three-league grant at all. The Court's prior opinion upheld the claims of Texas only because Texas now has a valid state boundary 'three leagues from land.' This present boundary is entirely independent of the Submerged Lands Act, which neither created it nor affected its location. The question before the Court at this time is not where that boundary was in 1845, but where it is now.

The words 'as it existed' were fully and carefully interpreted in the Court's earlier opinion, and they were held to serve a purpose different from and irrelevant to the determination of the location of any state boundary. Contrary to the impression left by today's opinion, the language of the grant made in the Submerged Lands Act does not contain these words. The operative section of the Act simply grants to every coastal State 'title 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.' To take under this language, a State may either prove an existing boundary, subject to a limitation of three leagues in the Gulf of Mexico and of three miles in the Atlantic or Pacific Ocean, or establish a new boundary three miles from its coastline pursuant to a separate section of the Act. The State must, however, presently have some boundary in order to take anything. The term 'boundaries' is defined elsewhere in the Act to include boundaries 'as they existed at the time such State became a member of the Union, or as heretofore approved by the Congress.' The purpose of this section, we held, was simply to restrict claims to boundaries that had, at one time or another, been approved by Congress.

On the basis of this understanding of the term 'as it existed,' we held in our prior opinion that the present maritime boundary of the State of Texas is defined by the Republic of Texas Boundary Act of 1836, because that Act was approved by Congress pursuant to its 1845 Resolution of Annexation of Texas. That Act claimed for Texas a boundary 'three leagues from land.' As the United States here concedes, maritime boundaries defined by reference to the shore are inherently mobile with changes in the configuration of the shoreline. Hence the present location of the boundary line drawn in 1836 is not necessarily the same as its location in 1836 or 1845. Below, after presenting in some detail the argument that the limit of the Submerged Lands Act grant is the present location of the historical boundary of the State of Texas, I shall consider the question whether these artificial jetties are to be included in determining that location.

The Court's opinion in United States v. State of Louisiana, supra, makes it abundantly clear that the question now before us is the present location of the Texas boundary that was acknowledged in 1845, and that the words 'as it existed' were not intended to answer that question.

As the earlier opinion explained, the congressional assumption that some States have existing historic boundaries was based on the history of this Court's treatment of submerged lands. The Court had early held that the States owned the land beneath their inland navigable waters. Pollard's Lessee v. Hagan, 44 U.S. 212, 3 How. 212, 11 L.Ed. 565. Following that case it was widely believed that the same rule would apply to the marginal sea, that is, that the States owned the land beneath the waters of the sea within their boundaries. This belief was based on two assumptions neither of which was authoritatively tested until the 1940's: first, that at least some States had valid boundaries in the sea, and second, that the States owned submerged land within them. In a series of cases beginning in 1947, the second assumption was destroyed by this Court: the United States was held to have paramount rights in offshore lands as an attribute of national sovereignty. The first assumption, however, was explicitly left standing by those decisions:

' * *  * The question here is not the power of a State to use      the marginal sea or to regulate its use in absence of a      conflicting federal policy *  *  *.

' * *  * We intimate no opinion on the power of a State to      extend, define, or establish its external territorial limits      or on the consequences of any such extension vis a vis      persons other than the United States *  *  *. The matter of     State boundaries has no bearing on the present problem.'      (Emphasis added.)

As we held in the earlier phase of the present case, Congress' purpose in the Submerged Lands Act was to restore the situation to what it had assumed it to be prior to 1947, and its method of doing this was to 'quitclaim' back to the States the 'paramount rights' that this Court had found to be an attribute of national sovereignty. This quitclaim, like the cases that led to it, had nothing to do with the validity or location of state maritime boundaries. As Senator Cordon, the Acting Chairman of the Committee on Interior and Insular Affairs and the bill's chief exponent in the Senate, put the matter,

'The States of the United States have legal boundaries. It is     not a part of the power or the duty of Congress to make      determination with reference to those boundaries, or where      those boundaries should lie. It is a matter for the courts to     determine, or for the United States *  *  * and *  *  * the      several States, to reach an agreement upon. The pending bill     does not seek to invade either province. * *  * Whenever a      question arises as to a boundary, it will be determined      exactly as any other question in law is determined, and the      boundary will be established. * *  *

' * *  * It is not within the province of Congress to change      the present boundaries of Texas without the consent of the      State of Texas.' 99 Cong.Rec. 2620. (Emphasis added.)

In the Court's prior opinion in this litigation we expressly adopted this construction of the Act. We accepted the then contention of the United States that the 'Act did not purport to determine, fix, or change the boundary of any State, but left it to the courts to ascertain whether a particular State had a seaward boundary.' We went on to say,

'(W)e find a clear understanding by Congress that the     question of rights beyond three miles turned on the existence      of an expressly defined state boundary beyond three miles. Congress was aware that several States claimed such a     boundary. Texas throughout repeatedly asserted its claim that     when an independent republic its statutes established a three-league maritime boundary, and that the United States      ratified that boundary when Texas was admitted to the Union *      *  *.

'It was recognized (by Congress) that if the legal existence     of such boundaries could be established, they would clearly      entitle the respective States to submerged land rights to      that distance under an application of the Pollard rule to the      marginal sea. Hence * *  * the right of the Gulf States to      prove boundaries in excess of three miles was preserved.'

B. THE WORDS 'AS THEY EXISTED.'

In the first phase of this case, the problem was which, if any, of the five Gulf States had boundaries that were cognizable for purposes of the Submerged Lands Act grant. Congress had limited boundaries so cognizable to boundaries 'as they existed' at admission or 'as heretofore approved' by Congress. The Court's decision at that time therefore turned entirely on the meaning of those two terms, which were consequently subjected to exacting analysis. We at that time rejected a contention made on behalf of the States, but apparently now adopted by the Court, that the words 'as they existed' referred simply to the location of state boundaries at the time of admission; we held, quite to the contrary, that the purpose of these words was not to affect the location of present state boundaries but to single out those boundary claims that had at one time or another been approved by Congress as the only ones cognizable under the Act. We reasoned as follows:

'The earlier 'quitclaim' bills defined the grant in terms of     presently existing boundaries, since such boundaries would      have circumscribed the lands owned by the States under an      application of Pollard to the marginal sea. * *  * Some      suggestions were made, however, that States might by their      own action have effectively extended, or be able to extend,      their boundaries subsequent to admission. To exclude the     possibility that States might be able to establish present      boundaries based on extravagant unilateral extensions, *  *  *      subsequent drafts of the bill introduced the twofold test of      the present Act-boundaries which existed at the time of      admission and boundaries heretofore approved by Congress. It     is apparent that the purpose of the change was not to alter      the basic theory of the grant, but to assure that the      determination of boundaries would be made in accordance with      that theory-that the States should be 'restored' to the      ownership of submerged lands within their present boundaries,      determined, however, by the historic action taken with      respect to them jointly by Congress and the State.'      (Emphasis added.)

It was on this theory that we held that the words 'as they existed' should properly be read to refer to the 'moment of admission' rather than to preadmission claims, because Congress' purpose had been to allow only claims that it had approved.

Having defined the term 'as they existed' to mean 'as acknowledged by Congress at the moment of admission,' the Court in the prior litigation went on to hold that the Resolution of Annexation of 1845 had, indirectly, been a congressional acknowledgment of the boundary established by the Republic of Texas Boundary Act of 1836, and that this Act therefore defines Texas' present boundary. The Act reads, in relevant part, as follows:

'beginning at the mouth of the Sabine river, and running west     along the Gulf of Mexico three leagues from land, to the      mouth of the Rio Grande *  *  * .' 1 Laws, Republic of Texas      133. (Emphasis in the Court's prior opinion. )

The problem before us here-where the boundary of Texas is must be answered by determining where 'three leagues from land' now is, for Texas has no historic boundary claim at all unless it is to 'three leagues from land.' The question is one that the Court does not even reach: should the words 'from land' be taken, today, to refer to the shoreline in 1836, or 1845, or to the present shoreline, and, if to the last of these, should 'land' include artificial accretions built upon the land? It is to that question that I now turn.

Texas' historic claim, by which the location of its present boundary must be determined, was to 'three leagues from land.' As the United States concedes, a boundary measured by the location of the edge of a body of water is inherently ambulatory. In its brief here, the United States put the matter this way:

' * *  * Where a waterline is a boundary, the boundary follows      the waterline through all its gradual, natural changes      (Jeffries v. East Omaha Land Co., 134 U.S. 178, 189 (10 S.Ct. 518, 520, 33 L.Ed. 872); Banks v. Ogden, 2 Wall. 57, 67 (17     L.Ed. 818); Jones v. Johnston, 18 How. 150 (15 L.Ed. 320);     New Orleans v. United States, 10 Pet. 662, 717 (15 L.Ed. 320)) * *  *.

* *  * The location of the boundary changes, but it is the      same, not a new, boundary.'

At the very least, then, the present boundary of Texas must be measured from its present shoreline, which may have suffered accretion or erosion since 1836, and not from its 1845 shoreline.

The next question is whether the 'land' whose present location is the base line from which to measure Texas' historic claim to 'three leagues' includes artificial extensions of land such as the jetties that are at issue in this case. There can be no doubt, as the Court's opinion recognizes, that any maritime boundary established today would be taken to incorporate existing artificial structures of the kind built on the Texas coast and to be ambulatory with any such future artificial accretions. In United States v. State of California, 381 U.S. 139, 176, 85 S.Ct. 1401, we specifically held that the three-mile boundary established by the Submerged Lands Act for States without historic boundaries would be measured from existing artificial structures and from future artificial structures as they might be built. We based our decision on the conclusion that Article 8 of the Convention on the Territorial Sea and the Contiguous Zone, quoted in the Court's opinion, ante, at 158, reflected a national and international view on this matter which should be taken to be incorporated within the three-mile-boundary section of the Submerged Lands Act.

At the time of this California decision the argument was made what it would be undesirable to allow a State to extend its territory unilaterally by building onto the shoreline. We rejected that argument, finding a sufficient answer in the fact that the navigational servitude possessed by the United States gives it plenary power to forbid or regulate the construction of artificial extensions of the coast-line. Furthermore, under the principle of the Convention only 'permanent harbour works' forming an 'integral part of the harbour system' count as part of the shore for measuring purposes, so no trifling construction will have the effect of moving a boundary.

The parties here have stipulated that the jetties in question fall within the Convention's definition of 'permanent harbour works.' In other words, were these jetties on the Coast of California, they would be treated as part of the 'coast line' in determining the extent of California's statutory grant of submerged lands within three miles of its 'coast line.' The precise issue before us is whether the Convention principle should now be taken to be incorporated into the claim of 'three leagues from land' in the Republic of Texas Boundary Act as it was incorporated into the term 'coast line' used in the Submerged Lands Act.

The Court appears to conclude that a different result should be reached in the case of Texas because '(u)nlike the three-mile grant where this Court held that Congress left boundary definitions up to it, here Congress granted land the boundaries of which are determined by fixed historical facts.' Ante, at 159-160. This statement in itself is correct, but the result does not follow. In the case of California, we were dealing with Congress' term 'coast line' and we held that Congress had left us considerable latitude in interpreting it. In the case of Texas, to which Congress has granted land out to its 'boundaries,' the question left to this Court is narrower: we must determine whether the Texas Act defining those boundaries should be interpreted as of today to include artificial extensions of the shoreline in the base line for measuring those boundaries. That Congress referred us to an ancient boundary claim hardly justifies our assuming that that claim is self-explanatory.

Whether the words 'three leagues from land,' written in 1836, should now be held to mean 'three leagues from the natural shore' or 'three leagues from the coast line' as that phrase would be interpreted today is of course not an easy question. So far as we know, Texas had no artificial extensions of its coast in 1836 or 1845, and there is every reason to assume that it gave no thought to the present problem. Nor does it appear that any other sovereign in the 19th century had occasion to consider the question.

We are thus constrained, as one writer would have it, to guess what the Texas Legislature 'would have intended on a point not present to its mind, if the point had been present. Since Congress in effect left the interpretation of the Republic of Texas Boundary Act to us, that exercise involves no speculation as to how Congress interpreted or would have interpreted that Texas Act. The soundest principle of interpretation, it seems to me, is to assume that Texas would have come to the same conclusion that was reached by every nation that discussed the issue when itdid arise. That conclusion, which was not only unanimous but also obvious and natural, was that maritime boundaries move as the shoreline on the sea is extended.

The question apparently first arose in the 1920's. The Preparatory Committee for the League of Nations Conference for the Codification of International Law, to be held at The Hague in 1930, submitted to the various nations the question 'how the baseline for measuring the breadth of territorial waters is to be fixed in front of ports.' Great Britain and several other nations responded, 'In front of ports, the base line from which the territorial waters are measured passes across the entrance from the outermost point or harbour work on one side to the outermost point or harbour work on the other side.' The United States quickly adopted the British suggestion. Several nations, although not, like Great Britain, expressing the principle in the present tense as an existing rule, said that much the same principle 'should be' the rule. All together, of 18 responses received by the Preparatory Committee, none favored a different base line. The Committee then formulated the principle that 'territorial waters are measured from a line drawn between the outermost permanent harbour works,' and commented that 'agreement exists' on this principle.

Because of disagreement over unrelated matters, the Hague Conference produced no treaty on territorial waters. The matter was raised again, however, beginning in 1952, and the International Law Commission drafted the document that became, in 1958, Article 8 of the Convention on the Territorial Sea and the Contiguous Zone, ante, at 158. The ILC's comment was 'This article is consistent with the positive law now in force.' The ILC draft was presented to the UN Conference on the Law of the Sea, where M. Francois, the Expert to the Secretariat of the Conference, commented that 'States had long regarded harbour works such as jetties as part of their land territory and that practice should be universally recognized as unchallengeable.' The principle was adopted by the Conference, after discussion and without dissent, and became Article 8.

The United States here contends that because the outermost harbor-works principle had not been articulated in 1836 or 1845, it should not now be a basis for interpreting the Republic of Texas Boundary Act. The premise of this contention is sound: an ancient statute should ordinarily be interpreted in light of the doctrines prevailing at the time it was passed, rather than of subsequent changes in governing principles. But the conclusion drawn from this premise by no means follows in this instance. The outermost permanent harbor-works principle was not a new rule substituted for an older, conflicting one. It was simply the first answer to a problem that had not arisen before. The unanimity of nations in 1930 strongly suggests that Texas, had it considered the problem in 1836, would have reached the same conclusion.

The conclusion that the Texas Boundary Act should be read today in light of the outermost harbor-works principle is fortified by the fact that the result to which this reading leads is eminently sensible. Considerations of history aside, there is no good reason (and certainly there is no suggestion in the Submerged Lands Act or its legislative history) why the principles governing measurement of the present-day boundary of the State of Texas should be different from those that govern both the measurement of the boundary of California and the measurement of the boundary of the United States in the Gulf of Mexico opposite Texas. Furthermore, the various practical considerations that led the nations of the world to agree unanimously on the principle of Article 8 should surely have considerable force here. The Court's rule, maintaining the boundary of Texas immobile at its 1845 location, seems highly unworkable even if it now proves possible to determine that location at all; for the result of such a rule is that at some future time not only artificial but natural extensions of the land mass might prove to be outside of 'Texas.' The alternative, suggested by the United States here but rejected by the United States for international purposes, would be to make the boundary mobile with respect to natural, but immobile with respect to artificial, changes. Such a rule involves obvious difficulties: the construction of harbor works may affect the configuration of the entire shoreline, making it soon impossible to determine where the 'natural change ends and the 'artificial' change begins. The outermost permanent harbor-works principle, then, seems almost inevitable.

Believing that the limit of Texas' submerged land grant is its present boundary, that that boundary is defined by the Republic of Texas Boundary Act of 1836, and that that Act defines a boundary that should now be measured from the outermost points of the jetties in question. I respectfully dissent from the Court's determination of the issue before us.