United States v. Louisiana (Texas Boundary Case)/Dissent Black

Mr. Justice BLACK, dissenting.

I would decide this case in favor of Texas. It is another of a long-continued and apparently never-ending series of lawsuits between the United States and Texas, trying to settle the location of the boundaries of lands submerged under ocean and Gulf waters that Congress, in 1953, validly conveyed to the States in the Submerged Lands Act. The dispute is a narrow one. This Court held in United States v. Louisiana, 363 U.S. 1, 80 S.Ct. 961, 4 L.Ed.2d 1025 (1960), that the United States had in the Submerged Lands Act conveyed to Texas submerged lands out into the Gulf for a distance of three leagues, about nine miles, from the State's coastline. And we held in United States v. Louisiana (Texas boundaries), 389 U.S. 155, 161, 88 S.Ct. 367, 370, 19 L.Ed.2d 383 (1967), that 'the congressional grant to Texas of three marine leagues of submerged land is measured by the historical state boundaries 'as they existed' in 1845 when Texas was admitted into the Union.' That case, however, did not attempt to identify with precision where the coastline was located, but that question is no longer in dispute for here the parties have stipulated the location of the seaward boundary of Texas when it was admitted into the Union. In that same case we rejected arguments that we should follow the second california case, United States v. California, 381 U.S. 139, 85 S.Ct. 1401, 14 L.Ed.2d 296 (1965), in holding that a dispute over the state and national submerged boundary line should be decided by international law and treaties. In declining to apply the same treaty in the United States and Texas dispute, we said, 'This is a domestic dispute, which must be governed by the congressional grant,' 389 U.S., at 161, 88 S.Ct., at 370, and thereby rejected the idea that the question was controlled by international law or treaty. Obviously, the same principle equally applies here, in this further phase of the very same submerged land dispute. No one of the international family of nations is greatly interested and certainly none can control the way in which another nation divides itself into subordinate governmental units for control of that country's own inland waters. That is a problem for each nation to decide for itself.

Moreover, I pointed out in my dissent to the Court's holding on the counter motions in the Louisiana Boundary Case decided today, reasons why the second California case should not be held to establish a uniform rule for deciding all controversies concerning disputed questions of submerged land boundaries arisi g out of the Submerged Lands Act, 394 U.S., p. 78, 89 S.Ct., p. 812. This case now before us concerning the Texas boundary again refutes any idea that applying treaties and international law to settle such local disputes between the Federal Government and a State will bring about stability, certainty, or expedition in carrying out the will of Congress. For here we are told that even if the United States wins, it will probably take a very long time to decide this controversy under the complexities of measurement necessary in accordance with the international trety rules. We are warned also that another boundary lawsuit between State and Nation is already brewing with a second just around the corner from it. Consolation is also offered because we are told that we can continue in case after case to keep our decrees open for future lawsuits. All of this goes to emphasize to me that it has been a mistake for this Court to advance the view that these land boundaries should be settled by courts. Obviously, the best way to settle a boundary dispute, whether water or land, is to designate a governmental agency that can undertake the complex problem of determining and marking where the inland and territorial waters meet. As I have pointed out in my dissent in the Louisiana Boundary Case, decided today, Congress in 1895 passed an Act specifically charging a competent government department to consider and mark such a line. If the Court is willing to stay its hand and let this congressionally selected agency identify the inland water-outer sea line in future cases in accordance with this Act of Congress, we may hopefully look forward to having the courts relieved of this nonjudicial duty. I believe experience proves, however, that the effort of Congress to straighten out this muddle and give the submerged lands to the States is destined to a long, slow, almost endless delay, if the problem continues to be left to this Court.

The effect of the Court's holding today is that where the process of accretion is building up new land along the shores, the boundaries Texas may claim are not extended because, as we held last Term, they remain irrevocably fixed by the 1845 line, but as erosion gradually pushes back the present coastline at other points along the shore, the outer limit of the submerged lands owned by Texas is also pushed back toward shore. This argument of the United States, accepted today by the Court, truly deserves the ironic tribute by counsel for Texas in oral argument that it works for the United States precisely as the old game of 'heads I win, tails you lose.' Moreover, the Court admits that if the United States wins, the boundary between state and federal lands will be an ambulatory one, with oil leases by the State constantly subject to invalidation as erosion takes its toll on the land along the shore. The Court says that these inequitable results 'd rive from * *  * the scheme Congress fashioned.' Ante, at 6. I think those inequities rather result from the interpretation this Court has given the Act, chiefly by saying that Congress intended to give the task of marking submerged land to judges rather than to surveyors, and by holding further that the task should be handled by reference to international treaties. The uncertainty and confusion created for those who accept oil leases from the State, and the unfairness of the one-sided rule under which only Texas can lose by future natural changes in the shoreline, can be eliminated by simply construing 'coast line' in § 2(b) of the Act to have the same natural meaning we attributed to that phrase only last Term, namely the historic coastline 'as it existed' when Texas was admitted to the Union. And secondly, in future cases, all these problems and inequities could be simply avoided by choosing to follow the Coast Guard line, marked out as authorized by Act of Congress.

I dissent from the Court's acceptance of the proposed United States decree and would approve the decree of Texas.