United States v. California
Dissenting Opinion
dissenting.
In 1947 in United States v. California, 332 U. S. 19, this Court held that the United States had paramount rights in the waters and submerged lands lying adjacent to its coastlines. A Special Master was appointed to apply the rule of that case to segments of submerged land off the mainland of California. In 1953 Congress, believing that this Court’s decision unfairly denied to the coastal States submerged lands within their historic boundaries, passed the Submerged Lands Act to upset that decision and restore to the States what Congress believed had historically and rightfully been theirs. The Court today decides this case on the basis of the 13-year-old Master’s Report which attempted to carry out the 1947 California opinion and decree. Instead of relying on that 1952 Report, which was based on a decision which Congress in 1953 forcefully and emphatically rejected in the Submerged Lands Act, I would refer this case to a Master for new hearings, findings and recommendations to be made in light of the Submerged Lands Act, the controlling statutory law as it now exists.
I.
The issue in this case is whether California or the United States is the owner of seven segments of land lying under the sea off the mainland of California.
For many decades some of the States bordering on the sea had claimed dominion over water and submerged lands lying off their shores. Their claims usually were stated as extending into the open sea a distance of three statute
For many years the Federal Government raised no objection to the various States’ claims that their boundaries, including claims to the marginal sea, extended outward for various distances into the sea. However, by the 1930⅛ it became apparent that the submerged lands off the shores of certain States contained rich and valuable oil reserves and other natural resources. In the late 1930’s it was for the first time asserted that in spite of the States’ historic claims the United States, and not the respective coastal States, was the owner of all submerged lands lying both within and without the three-mile limits, except for land under “inland waters.”
It was not long before such hearings did become necessary, for the United States and California found themselves in sharp disagreement as to what the term “inland
The Submerged Lands Act of 1953
For 10 years after the Act was passed transferring title to these submerged lands to the States, no further action in the case pending in this Court was taken by either the United States or California.
II.
This Court’s 1947 holding precipitated one of the most hotly contested political issues of the post-war decade. Critics of the decision said that it had come as a complete surprise and had effectively taken away from the coastal States what they and others had thought from the time they entered the Union and before belonged to them. In 1952 a resolution passed both houses of Congress designed to “restore” to the States the submerged lands which they
The controversy over whether to upset the Federal Government’s title which this Court had declared in the 1947 decision continued, however, and on January 9,1953, Senator Holland of Florida on behalf of himself and 39 other Senators introduced a bill, Senate Joint Resolution 13,
“To confirm and establish the titles of the States to lands beneath navigable waters within State boundaries and to the natural resources within such lands and waters . . . and to confirm the jurisdiction and control of the United States over the natural resources of the seabed of the Continental Shelf seaward of State boundaries.”19
“the general purpose of Senate Joint Resolution 13 is to recognize, confirm, establish, and vest in the several States — and this means all 48 of them — the submerged lands and the natural resources therein within their respective boundaries, subject to the exercise of all of the powers of regulation of the Federal Government for the purpose of commerce, navigation, national defense, and international affairs, none of which Federal powers include any property rights. This joint resolution will confirm to the maritime States — of which there are 20 — the rights which they had respectively enjoyed since the founding of our Nation and up to the date of the decision in the California case, in their offshore lands and waters which lie within their constitutional boundaries.”20
Its object, he said, was “restoring to the States their plenary rights, property, jurisdiction, and control which they exercised without question for 150 years over the areas lying within State boundaries.”
“I do believe that the national interest would be best served by restoring to the various States the coastal offshore lands to the limits of the fine marked*188 by the historical boundaries of each of the respective States.”23
There can be no doubt, I believe, and I do not understand the Court to question, that, as proposed to the Senate Committee on Interior and Insular Affairs by Senator Holland and others, the bill which became the Submerged Lands Act unquestionably was intended to give the States title to all the offshore lands going out at least as far as the respective States’ historic boundaries. A brief filed in this Court in another case shows that in the reported deliberations on the bill the term “historic State boundaries” was used 813 times, “original boundaries” 121 times, and “traditional” boundaries 114 times.
III.
We start then from the conceded fact that the bill as originally introduced gave California title to all the submerged lands off its shore out to its historic boundaries, whatever they might prove to be. The Court, however, pins its case for denying California those historic boundaries on what it calls two “relevant,” indeed fundamental, changes, ante, p. 150, made in the bill prior to its passage, which the Court says show that the bill’s sponsors suddenly altered their intent and decided instead of restoring to California and other States mineral rights within their historic boundaries, to limit them to a three-mile or three-
A. The Removal of the Definition of “Inland Waters.”
As originally drafted, § 2 of the Holland bill defined “inland waters,” which extended to the “coast line,” as including
“all estuaries, ports, harbors, bays, channels, straits, historic bays, and sounds, and all other bodies of water which join the open sea.”25
This definition would of course unquestionably give California title to submerged lands lying under all its historically recognized bays and straits as part of California’s “inland waters,” quite apart from the fact that they might also lie within California’s historic boundary of inland waters plus marginal sea. The Deputy Legal Adviser of the State Department testified that such a legislative definition of inland waters, even though limited to the purpose of the bill of affecting property rights between the United States and the States, “a purely domestic matter,”
“That language was objectionable to the State Department and to the Department of Justice. That isn’t, in itself, in my opinion, reason to strike it, but I am of the opinion that the objections were sound. The matter of inland waters is one that has been defined time and time again by the courts, not, I believe, in any one all-inclusive definition, but it was felt that the use of these words were an attempted legislative definition of the term ‘inland waters,’ and it was inadvisable for us in this bill, which is a transfer of title, to attempt to make law in the other field of what is or is not inland water.”29
At another point he explained that the language was struck simply because
“It was sought not to get into that field because you were in a field then where, in our attempts to take care of a purely domestic matter, we might be putting the United States on record with a precedent which we intended only to apply domestically but which might be applied internationally.”30
He emphasized that
“The elimination of the language still follows what the Chair understands to be the philosophy of the*191 bill, that we are putting the States where they thought they were, and not attempting now to create either a situation in law or a basis for a rule of evidence that may or may not have been sound when the States came into the Union.”31
Senator Daniel of Texas, a leading advocate and sponsor of the bill, said:
“I agree fully with the chairman that the striking of these words was not done in any manner to prejudice the rights of the States .... I just want to state that for the record, if this record is ever used in the future.”32
Senator Cordon, who had proposed the change, replied:
“I appreciate the statement of the Senator, and I concur in it, so far as the action taken here is concerned.”33
And Senator Anderson, another member of the Committee reporting the bill, agreed:
“I Subscribe fully to what the chairman said quite awhile ago in pointing out that this bill does not seek to take away from or add to the position of these States as they came into the Union.”34
When the bill was reported out of committee and presented to the Senate, its supporters made clear that the Committee had made no change in its original objective of restoring to the States everything within their historic boundaries. Senator Holland said it was an “obvious fact”
“The boundaries of the States cannot be changed by Congress without the consent of the States. We cannot do anything legislatively in that field, and we have not sought to do so in this measure.
“I think that answers all and every one of the discussions with reference to boundary lines of the States, including whether they are measured from low water, high water, inland water, or some island.”37
And Senator Holland said:
“By way of a brief summary, the general purpose of this measure as reported by the Interior and Insular Affairs Committee is to recognize, confirm, establish, and vest in and assign to the respective States the title and ownership of the lands and resources beneath navigable waters within their respective boundaries . . . .”38
And Senator Daniel explained:
“Until recently the Federal Government never thought it owned these lands, and even until now it has never possessed or used them. The lands are still in the possession of the States .... The passage of the pending proposed legislation will simply permit the States to keep what they have always had since the foundation of the Union.”39
If that were not enough to show that the removal of the definition of inland waters from § 2 of the bill as a
“The committee wishes to emphasize that, as will be seen from comparison with the measure as introduced, the changes are primarily those of form and language, and the committee amendment is consistent throughout with the philosophy and intent of Senate Joint Resolution 13 as introduced. The only change of substance is found in section 9, in which the jurisdiction and control of the Federal Government over the natural resources of the seabed of the Continental Shelf seaward of historic State boundaries is confirmed.”40
Thus the continued intention to confer on the States all submerged lands within their “historic boundaries” was again reiterated. And in a specific reference to the elimination of the definition of inland waters from § 2, the Committee Report said that the words had been deleted
“because of the committee’s belief that the question of what constitutes inland waters should be left where Congress finds it. The committee is convinced that the definition neither adds nor takes away anything a State may have now in the way of a coast and the lands underneath waters behind it.”41
The Committee had before it the report of the Special Master in this very case
“The elimination of the language, in the committee’s opinion, is consistent with the philosophy of the Holland bill to place the States in the position in which both they and the Federal Government thought they were for more than a century and a half, and not to create any situations with respect thereto.”44
The Court reads this change in words as showing “a legislative intent to leave the definition of inland waters to the courts without restriction.” Ante, p. 154. The Court agrees that before this change was made, the bill gave the States all the submerged lands out to their historic boundaries. The Court admits that the 1947 California decision rejected the States’ claims to their historic boundaries and, according to the Court, set up a test of international law and foreign-policy standards for measuring inland waters. But the Court concludes that when the Committee said that it was leaving the States with the rights to inland waters which they had before the California decision, it really meant to establish the international law standard, including the Boggs formula (except insofar as that formula has since been abandoned by treaty) which many Senators had so strenuously opposed and which in their Committee Report they specifically stated they did not mean to adopt. I think that a fair reading of the discussion of this change shows that the Committee members intended that all the States should have their boundaries, including a belt of marginal sea and all the lands and waters from which they had historically measured their claims to the marginal sea, which they thought would have been recognized as such by the courts up to the time of the California decision, and that the test of inland waters and coastlines was therefore an historical one. The Committee regarded
“In recognizing State ownership of lands beneath navigable waters within historic State boundaries, this joint resolution wisely makes no attempt to define exactly what those boundaries are. In substance, the resolution provides that each of the States has ownership of all lands beneath navigable waters extending, in the case of littoral States, 3 geographical miles seaward from its coastline, or to its historic boundary.”47
Thus up to this point in the legislative history I think it can be said that (1) the Holland bill as originally
B. The Three-Mile or Three-League Limitation.
The Court calls attention to one other change in the bill before its enactment, and on the significance attributed to this one small change depends the validity of the Court’s entire opinion. The Court says that this change was fundamental, of vital importance. It says that to the extent of this change, “the philosophy [of the Holland Bill] was modified.” Ante, p. 154. I find this altogether surprising, since when the change was introduced — by Senator Holland himself — and adopted almost immediately without any opposition being voiced, he said it was “just a minor change of verbiage,”
This change which its sponsor thought was “minor” and which the Court thinks is fundamental, and on which the Court’s whole argument depends, merely modified the definition of “boundaries” in § 2 of the Act by adding:
“but in no event shall the term, 'boundaries’ or the term ‘lands beneath navigable waters’ be interpreted as extending from the coast line more than three geographical miles into the Atlantic Ocean or the Pacific Ocean, or more than three marine leagues into the Gulf of Mexico.”52
The Court says that this language implicitly did away with the original and continued intention of the proponents of the bill to “restore” to the States the ownership of all submerged lands lying under all waters within their historic boundaries, wherever those boundaries lay, and instead established a rule that historic boundaries would not be honored if they extended more than three miles from the coastline, i. e., from the seaward edge of the inland waters as the Court today defines inland waters. The Court then reads the legislative history as destroying the historic definition of inland waters — which is, of course, all waters within a State’s boundaries exclusive of claims to marginal sea — and substituting a very restrictive one based on this Court’s decision in the California case, a reading which I have indicated above is, I think, flatly contrary to what the legislative history shows. The Court thus holds that by making two minor changes in the bill, which changes they said over and over again were of no substantive significance, the Senators supporting it silently repudiated in large measure their own intention,
This three-mile or three-league limitation amendment was added for a very simple reason, which is plain in the Congressional Record and which shows that the sponsors of the bill were reaffirming rather than abandoning their basic original purpose in offering this and similar bills: they wished to restore to the States the submerged lands out to their historic boundaries, including three miles or leagues of marginal sea, but no farther. As reported from Committee, the bill gave the States submerged lands out to their boundaries at the time they entered the Union “or as heretofore or hereafter approved by Congress” without any limitation. It was feared by some that one or more of the States, none of which had ever claimed more than three miles (or leagues) of the marginal sea, might suddenly assert claims that their boundaries extended out hundreds of miles to the very limits of the Continental Shelf.
“The amendment will simply indicate that this Senate, in the passage of the joint resolution, is certainly not inviting additional claims, and it knows of no additional claims.”57
Senator Holland, as the record shows, and many other Senators were well aware of California’s existing claim, which is now before us, and could not have considered it to be “additional.”
Time and time again the proponents of the bill stated before the amendment was passed that no State claimed
“. . . those of us who are coauthors of this measure have always understood that it was not necessary to write into the pending legislation a specific provision that it shall not apply to lands beyond 3 miles, or 3 leagues, because all the States are claiming is 3 miles, except in the Gulf of Mexico where historic boundaries are 3 leagues from shore.”60
He added:
“I believe that the exchange here within the past few minutes should make it very clear that the authors of this measure are not trying to give to the States, or to restore to the States, any lands outside their historic boundaries.”61
The claims of the States to a belt of marginal waters of course did not determine the location of the coastline from which such a belt would be measured. California’s historic coastline, it says, was the outer limit of the bays and islands. In limiting the States to their historic claims of three miles or three leagues from their “coast lines,” wherever those “coast fines” might be, Congress unquestionably, I think, was leaving totally undisturbed the validity of their historic claims to the boundaries from which those belts would be measured.
The exchange began when Senator Long of Louisiana asked Senator Holland about how far seaward Louisiana’s boundary would extend under the bill. Senator Long said:
“Now, if I understand correctly, the Senator is not proposing that the actual determination of exactly what was the historic boundary at the time Louisiana came into the Union be decided by the Congress, but rather that the question of the histone boundary of the State might be one still subject to actual judicial determination.
“Senator HOLLAND. Of course, the Senator is right.
*203 “Senator HOLLAND. We cannot draft general legislation that will still every possible legal question.”62
Senator Anderson of New Mexico then asked Senator Holland whether the bill validated the claim of California that its historic boundary extended to the offshore islands with a three-mile belt of marginal sea beyond them. To this Senator Holland replied:
“The Senator from Florida can only give his opinion, and in his opinion it would not, because of the great depths of the water that exist between the coastline of California and the extrusions from the sea bottom which appear out there, and some of which are above the level of the water. Again, though, the Senator from Florida states that that would be a matter, naturally, on which the courts would be asked to rule. We are not going to find any formula that displaces the function of the courts to go into cases and find which cases come within the general doctrine announced by legislation and which fall without that legislation.”63
In other words, the bill did not settle definitively the question of fact as to whether California’s historic boundary was to be measured from the outer rim of the islands. That was a question on which courts would have to hear evidence and then decide according to “the general doctrine announced by [this] legislation” — the doctrine, as Senator Holland and others repeated so many times, that the States were to be restored to their “historic boundaries.” And as he said in summary, there was nothing in his bill which would diminish California’s claim to the waters and submerged lands around its offshore islands.
As a further indication that the three-miles-from-coastline amendment was not intended to affect States’ claims to their historic boundaries, the record shows that opponents of the bill subsequently tried to amend it to restrict the line from which the three-mile limits would be measured, and failed. Senator Douglas of Illinois, a leader of the opposition, proposed an amendment which would have changed the definition of “coast line” in the bill so that the three miles would be measured only from the main continent, and separately around any islands, thus cutting off California’s claim to the submerged lands between the islands and the mainland, which is largely the issue before us now. Senator Douglas indicated specifically that his proposed amendment was intended to destroy California’s claim to those submerged lands, and that he had warned Senator Kuchel of California of his intention to introduce it.
I think that this review of the relevant hearings and debates in the Senate makes clear three things: (1) As originally proposed, the bill was intended to “restore” to the States title to submerged lands within their historic boundaries, whatever those might prove to be. (2) The removal of the explicit definition of inland waters, far from being, as the Court views it, fundamental, was not a “change of substance”
Near the conclusion of the debates on the bill Senator Holland in explaining its purpose used these words, which I do not think show any fundamental or even perceptible changes or modifications of philosophy from those he had used in his first speech on the bill:
“The truth is that Senate Joint Resolution 13 simply restores or gives back to the States the submerged lands within their historic boundaries which they have possessed, used and developed in good faith for over 100 years. . . .
“. . . It would write the law for the future as it was believed to exist in the past by restoring to the States all lands beneath navigable waters within their historic boundaries.”73
C. The House Legislative History.
The hearings and debates in the House were less extensive than those in the Senate, but the intention of the legislators there to restore to the States all submerged
“The States want, and we believe they are entitled to, all the development rights, you might say, in these submerged lands within their historic boundaries.”76
The House Committee Report on the bill said:
“Title II confirms and establishes the rights and claims of the 48 States, asserted and exercised by them throughout our country’s history, to the lands beneath navigable waters within State boundaries and the resources within such lands and waters.”77
In explaining the bill to the members of the House, Congressman Willis of Louisiana, a member of the Committee and a supporter of the bill, said:
“First, it restores to the States complete title to the submerged lands up to the limit of their historic boundaries.”78
“Mr. WILSON of Texas. . . . Bear in mind that this is title II, the title that returns or restores this seaward boundary within the historical boundaries of the States to the States ....
“Mr. HALLECK. If we stick to the provisions of the bill, then we are just being consistent with respect to the title to the land within the historic boundaries?
“Mr. WILSON of Texas. That is true.”79
The House bill, passed with this intention, was then sent to the Senate, which at that time was considering Senator Holland’s bill, a virtually identical measure. After the Senate passed the Holland bill, with the two changes which the Court deems fundamental, Congressman Reed, Chairman of the House Judiciary Committee, which had reported the House bill, asked the members of the House to accede to their bill as amended by the Senate. He prefaced his remarks by saying:
“Mr. Speaker, I trust that 3 minutes will be sufficient for me to say all that I deem necessary about this resolution.”80
He then proceeded in these words to tell the members of the House what had happened to their bill as adopted by the Senate:
“Titles I and II of the original bill, H. R. 4198, are now before us. There have been no substantial changes made by the Senate in these titles. They are practically the same as when passed by the House*209 except in a few instances where a few words and phrases here and there have been changed or deleted for clarification.
“About the only thing that is substantially new in this bill is a reassertion by the Senate in section 9 which confirms the rights of the United States to the jurisdiction and control of the lands under the Continental Shelf outside of State boundaries.”81
Relying on these assurances by Chairman Reed that there had been “no substantial changes” made in the bill by the Senate, the House without further discussion of the portions of the bill here involved proceeded to adopt the Senate version, which after being signed by the President became the Submerged Lands Act of 1953.
This, then, is the legislative history of the Submerged Lands Act, both in the Senate and in the House, which, according to the Court, shows that the sponsors and supporters of the Act completely altered their intention of restoring to the States the submerged lands within their historic boundaries, and instead left the States with what the Court allows them today. I think that the statements and actions of the supporters of the bill show on the contrary that the intention of restoring all submerged lands under all waters within historic state boundaries was plainly and explicitly stated and understood by all from the beginning, and, despite attacks from opponents of the bill, never varied. Time and time again the Senators and Congressmen repeated that the bill had not been changed in any way to diminish the rights granted to the States in the bill as originally introduced — rights which, as the Court does not dispute, included the right to all submerged lands under all waters within historic state boundaries. I would follow the understanding of the authors and supporters of the bill, and I would take them at their word.
In. light of this legislative history, of which I have set forth only a small part, I think that under the Submerged Lands Act California is entitled to all the submerged lands within its historic boundaries, and that it should be given an opportunity to try to prove in hearings before a Master where those historic boundaries were. The Court says that Congress left it up to this Court to expound the legal principles which shall determine California’s claims, without any reference to the Submerged Lands Act’s stated purpose to restore the mineral rights of the States in submerged lands within their historic boundaries. I think the Court is completely misreading the intentions of the authors and supporters of the Act. If there is anything clear in the legislative history, it is that Congress was not satisfied with the way in which this Court had decided the California case and did not approve of the considerations of external sovereignty used there in determining a domestic dispute over title. It seems to me the height of irony to hold that an Act passed expressly to escape the effect of this Court’s opinion in this -field is now construed as leaving us free to announce principles directly antithetic to the basic purpose of Congress of deciding that question for itself once and for all. True, the Congress left to the courts the exercise of their historic function to decide the factual question of where a State’s historic boundaries, based on those approved when it was admitted to the Union, lie. But I think the Court errs in arguing repeatedly that by leaving it to the courts to decide the issues of fact in particular cases, Congress meant to leave it to this Court to determine the legal principles governing California’s claim, and in particular to do so by adopting a formula of its own devising based on one used by the State Department in its handling of foreign affairs. •
There may be evidence which tends to disprove the historic validity of California’s claims. But what California has asked here is an opportunity to prove where its boundaries historically were, to use the test of ownership fixed by Congress in the Submerged Lands Act rather than the foreign-relations tests set up by the Special Master 13 years ago and approved by this Court today for the first time. I think that the legislative history of the Submerged Lands Act shows without question that the definitions in it were to be read as preserving to the maritime States their claims to submerged lands and waters within
See Appendix A.
See Appendix B, which shows Monterey Bay, one of the bays in question. California claims that all the submerged land and waters landward of the line drawn across the headlands are inland waters within the historic coastline of the State, and that its historic boundary, the outer limit of its rights under the Submerged Lands Act, extends three miles seaward of that line. The United States claims that California owns only a belt of submerged lands within three miles of the low-water mark of the mainland shore.
See Appendix C. California claims all the submerged land between the line drawn along the islands from the mainland, and a belt of marginal sea three miles to seaward of that line. The United States contends that California is entitled only to a belt within three miles of the mainland shore and three miles around each of the islands.
One geographic (or marine or nautical) mile equals approximately 1.15 statute (or land or English) miles. One marine league equals three geographic miles or approximately 3.45 statute miles.
See S.'Rep. No. 133, 83d Cong., 1st Sess. (hereafter cited as Senate Report), 21.
The Master was asked also to consider what criteria were proper for measuring the ordinary low-water mark on the shore.
67 Stat. 29, 43 U. S. C. §§ 1301-1315 (1958 ed.).
§ 3, 67 Stat. 29, 30, 43 U. S. C. § 1311 (1958 ed.).
§2 (a)(2), 67 Stat. 29, 43 U. S. C. § 1301 (a)(2) (1958 ed.).
§2 (c), 67 Stat. 29, 43 U. S. C. § 1301 (c) (1958 ed.).
§2 (a)(2).
§2 (b), 67 Stat. 29, 43 U. S. C. § 1301 (b) (1958 ed.). (Emphasis supplied.)
Ibid.
The constitutional power of Congress to enact the Submerged Lands Act was upheld in Alabama v. Texas, 347 U. S. 272.
S. J. Res. 20, 82d Cong., 2d Sess. For a summary of earlier proposed legislation dealing with submerged lands, see United States v. Louisiana, 363 U. S. 1, 6, n. 4.
Message from the President, May 29, 1952, S. Doc. No. 139, 82d Cong., 2d Sess.
Id., p. 2.
S. J. Res. 13, 83d Cong., 1st Sess. A substantially identical bill, H. R. 2948, 83d Cong., 1st Sess., was introduced in the House.
67 Stat. 29. (Emphasis supplied.) The latter clause, dealing with the outer Continental Shelf, was added to the original bill in committee.
Hearings before the Senate Committee on Interior and Insular Affairs on S. J. Res. 13 and Other Bills, 83d Cong., 1st Sess. (hereafter cited as Senate Hearings), 31-32. (Emphasis supplied.)
Senate Hearings 49.
Id., 34.
Id., 512. Unlike the Truman Administration, the Eisenhower Administration supported legislation to grant mineral rights in submerged offshore lands to the adjacent States.
Brief of the State of Texas, United States v. Louisiana, 363 U.S. 1, p. 50.
See Senate Report 14.
Senate Hearings 1378 (Senator Cordon). Compare United States v. Louisiana, 363 U. S. 1, 33.
Id., 1053 (Deputy Legal Adviser Tate). Compare United States v. Louisiana, 363 U. S. 1, 30-32.
Id., 926. Attorney General Brownell suggested that a line be drawn on a map as part of the bill. He said that if the Committee tried “to describe in words bays or other characteristics of the coast, unnecessary litigation will almost surely result.” Ibid.
Senate Hearings 1304.
Id., 1378.
Id., 1383.
-Id., 1384.
Ibid.
Id., 1385.
99 Cong. Rec. 2746.
Ibid.
Id., 2634.
Id., 2744. (Emphasis supplied.)
Id., 2830.
Senate Report 2. (Emphasis supplied.)
Id., 18. (Emphasis supplied.)
Senate Hearings 1211-1229.
The Committee Report also reprinted the favorable report of a Senate Committee during a previous session of a bill which the Committee said was “identical in substance with Senate Joint Resolution 13 as introduced.” Senate Report 49. That earlier report, S. Rep. No. 1592, 80th Cong., 2d Sess., as quoted, criticised the California decision for creating great uncertainty as to what areas would be “inland waters” within the reasoning of the opinion. Under the federal-external-sovereignty reasoning of the California case the Committee saw no clear answer to such questions as:
“At what precise point does a bay become a part of the open sea? Are waters landward of offshore islands inland waters ? Are uplands formed by nature subsequent to the date of fixing the low-water mark subject to ‘the paramount power’ of the United States as defined by the Court’s opinion?” Senate Report 61.
The Committee sought in the legislation to avoid these “extreme comr plexities,” ibid., by enacting “a law consonant with what the States and the Supreme Court believed for more than a century was the law,” ibid., and restoring to the States all their historic property rights both to inland waters and to the marginal sea. The Report said:
“Unless S. 1988 as reported, is enacted, confusion will exist as to the ownership and taxability of, and powers over, bays and the 3-mile belt .... We consider it against the public interest for the Federal Government to commence a series of vexatious lawsuits against the sovereign States to recover submerged lands within the boundaries of the States, traditionally looked upon as the property of the States under a century of pronouncements by the Supreme Court reflecting its belief that the States owned these lands.” Id., at 62.
Senate Report 18.
See infra, p. 212. “[T]he sponsors understood this Court to have established, prior to the California decision, a rule of state ownership itself defined in terms of state territorial boundaries . . . .” United States v. Louisiana, 363 U. S. 1, 19-20.
Senate Hearings 1383 (Senator Cordon).
99 Cong. Ree. 2984. (Emphasis supplied.)
Senate Report 18, supra, n. 44.
99 Cong. Rec. 4115.
Id., at 4114.
Ibid.
§2 (b), 67 Stat. 29, 43 U. S. C. § 1301 (b) (1958 ed.).
See, e. g., 99 Cong. Rec. 2917, 2975-2977, 3040, 3273, 3336-3337, 3381, 3549, 3552-3553, 3655, 3885-3886, 4085.
Compare the Outer Continental Shelf Lands Act, 67 Stat. 462, 43 U. S. C. §§ 1331-1343 (1958 ed.), passed the same year, claiming for the United States “jurisdiction, control, and power of disposition” of all submerged lands seaward of the area granted the States in the Submerged Lands Act.
99 Cong. Rec. 4115.
Ibid.
Ibid. (Emphasis supplied.)
See, e. g., Senate Hearings 48-49.
99 Cong. Ree. 2746.
Id., 3039.
Id., 3051.
Senate Hearings 48. (Emphasis supplied.)
Id., 48-49. (Emphasis supplied.)
Id., 50-51.
99 Cong. Rec. 4175. See also id., 4477, 4478 (remarks of Senator Daniel).
Id., 4240. Senator Douglas said that his amendment was aimed at “preventing coastal States from pushing their coastal boundaries out to a line along the outer shores of remote islands and claiming everything in between.” Id., 4242.
Id., 4241.
Id., 4242. An earlier attempt by Senator Douglas and others to strike from the bill reference to the historic boundaries of the States when they entered the Union, and substitute a limitation based on the marginal waters claimed by the Federal Government
Several similar attempts by opponents of the bill to amend it to restrict the States to a belt within three miles of their mainland shores also failed. Senator Monroney introduced an amendment to limit the area restored to the States to three miles seaward of the low-tide mark on the shore. 99 Cong. Rec. 4157. Senator Long, a supporter of the bill (which already contained the two changes which the Court says were fundamental) protested:
“In view of the fact that the Congress has already indicated its intention of vesting in the States proprietary rights within their historic boundaries, does the Senator have any objection to the Court’s deciding what the historic boundaries are?” 99 Cong. Rec. 4160.
The proposed amendment was defeated. 99 Cong. Rec. 4203. A similar measure introduced by Senator Magnuson, which he emphasized would have limited the States to the amount of marginal sea which the United States claimed in international relations, was likewise defeated. 99 Cong. Rec. 4473-4478.
Senate Report 2.
Senate Hearings 1384 (Senator Daniel).
Id., 1304 (Senator Cordon).
99 Cong. Rec. 4115 (Senator Holland).
Id., 4361.
H. R. 2948, 83d Cong., 1st Sess. See H. R. Rep. No. 215, 83d Cong., 1st Sess. (hereafter cited as House Report), 3.
H. R. 4198, 83d Cong., 1st Sess.
Hearings before Subcommittee No. 1, House Committee on the Judiciary, on H. R. 2948 and Similar Bills, 83d Cong., 1st Sess., 219-220.
House Report 14.
99 Cong. Rec. 2504.
Id., 2567.
Id., 4897.
Ibid. (Emphasis supplied.)
Article XII of the California Constitution of 1849, approved when the State was admitted to the Union (Act of Sept. 9, 1850, 9 Stat. 452), provides:
“The boundary of the State of California shall be as follows:
“Commencing at the point of intersection of forty-second degree of north latitude with the one hundred and twentieth degree of longitude west from Greenwich, and running south on the line of said one hundred and twentieth degree of west longitude until it intersects the thirty-ninth degree of north latitude; thence running in a straight line in a southeasterly direction to the river Colorado, at a point where it intersects the thirty-fifth degree of north latitude; thence down the middle of the channel of said river to the boundary-line between the United States and Mexico, as established by the treaty of May 30, 1848; thence running west and along said boundary-line to the Pacific Ocean, and extending therein three English miles; thence running in a northwesterly direction, and following the direction of the Pacific coast, to the forty-second degree of north latitude; thence on the line of said forty-second degree of north latitude to the place of beginning. Also all the islands, harbors, and bays along and adjacent to the Pacific coast.” (Emphasis supplied.) H. R. Doc. No. 357, 59th Cong., 2d Sess., 405.
California contends that the inclusion of the islands off the shore also includes within the boundaries all waters between the islands and the mainland.
Reproduced in part in Appendix D, infra.
The brief of the United States Attorney, filed sub nom. People v. Adams, is reprinted as Appendix 3 to the Brief for the State of California in the Proceedings Before the Special Master, pp. 6-22.
Opinion of the Court
delivered the opinion of the Court.
The present case requires us to determine the extent of submerged lands granted to the State of California by the Submerged Lands Act of 1953,
I.
The Setting op the Case.
This is a suit begun in 1945, brought by the United States against California to determine dominion over the submerged lands and mineral rights under the three-mile belt of sea off the coast of California. In 1947 the Court decreed:
“The United States of America is now, and has been at all times pertinent hereto, possessed of paramount rights in, and full dominion and power over, the lands, minerals and other things underlying the Pacific Ocean lying seaward of the ordinary low-water mark on the coast of California, and outside of the inland waters, extending seaward three nautical miles .... The State of California has no title thereto or property interest therein.” United States v. California, 332 U. S. 804, 805, Order and Decree.
After the entry of this decree, the United States asked that the lands awarded to it be defined in greater detail in certain areas where there was substantial oil well activity, and which California asserted lay within inland waters. The Court appointed a Special Master,
The Submerged Lands Act
“in no event shall the term ‘boundaries’ ... be interpreted as extending from the coast line more than three geographical miles into the Atlantic Ocean or the Pacific Ocean, or more than three marine leagues into the Gulf of Mexico.” § 2 (b).
Thus the Act effectively grants each State on the Pacific coast all submerged lands shoreward of a line three geographical miles
In a later measure related to the Submerged Lands Act, Congress declared that the United States owned all submerged land in the continental shelf seaward of the lands granted to the States. Outer Continental Shelf Lands Act, 67 Stat. 462, 43 U. S. C. § 1331 et seq.
The passage of the Submerged Lands Act marked the beginning of a long halt in the proceedings in this case. Depth of California’s coastal waters increases very rapidly, and as of May 22, 1953, the date of enactment, it was impractical to drill for oil except close to the shore. By granting to California the mineral rights in the three-mile belt, the Act vested in California all the interests that were then thought to be important, and no further action was taken on the Special Master’s Report. That Report was neither adopted, modified, nor rejected
The basic contention of the United States is that the Act simply moved the line of demarcation out three miles from the line established by the California decree. Therefore, contends the United States, the Special Master’s Report on the line of ordinary low water and the outer limit of inland waters as used in the California decree is just as relevant now as it was before Congress acted, and, with slight modifications, the line drawn by the Special Master should be taken as the “coast line” for purposes of the Submerged Lands Act. California asserts that whereas the Special Master determined inland waters to be those which the United States would have claimed as such for purposes of international relations, the Submerged Lands Act used the term in an entirely different sense to mean those waters which the States historically considered to be inland — in California’s case, those waters which the State considered to be inland at the time it entered the Union. Therefore, according to California, the line drawn in the Special Master’s Report was determined under standards wholly foreign to the Submerged Lands Act.
The focal point of this case is the interpretation to be placed on “inland waters” as used in the Act. Since the Act does not define the term, we look to the legislative history.
Legislative History Reveals that Congress Meant to Leave the Definition of Inland Waters to the Courts.
Two changes relevant for our purposes were made in the bill which became the Submerged Lands Act between the time it was sent to the Senate Committee on Interior and Insular Affairs and the time of its passage.
(1) As first written, the bill defined inland waters to include
“all estuaries, ports, harbors, bays, channels, straits, historic bays, and sounds, and all other bodies of water which join the open sea.”
This definition was removed by the Senate Committee.
(2) The bill originally contained no limitation on the extent of historic boundaries that could be claimed. The provision limiting the extent of boundary claims to no more than three geographical miles from the coastline on the Atlantic and Pacific Oceans and three marine leagues on the Gulf of Mexico was added to the bill on the floor of the Senate in the late stages of the debates.
Removal of the definition for inland waters and the addition of the three-mile limitation in the Pacific, when taken together, unmistakably show that California cannot prevail in its contention that “as used in the Act, Congress intended inland waters to identify those areas which the states always thought were inland waters.”
In response to substantial objections made in the hearings to the original bill’s broad definition of inland waters on grounds that it would prejudice and limit the position which the United States could take in its future conduct of foreign affairs,
“The words 'which include all estuaries, ports, harbors, bays, channels, straits, historic bays, and sounds, and all other bodies of water which join the open sea’ have been deleted from the reported bill because of the committee’s belief that the question of what constitutes inland waters should be left where Congress finds it. The committee is convinced that the definition neither adds nor takes away anything a State may have now in the way of a coast and the lands underneath waters behind it.” S. Rep. No. 133, 83d Cong., 1st Sess., 18.13
The committee’s understanding that the measure “neither adds nor takes away anything a State may have now in the way of a coast and the lands underneath waters behind it,” appears to be an acceptance of “inland waters” as used in the California and prior Court opinions, whatever that usage might have been. Various different concepts of inland waters were asserted during the Senate Hearings, based on such elements as the depth of the water,
Reference to Senator Cordon’s request to the Senate Committee for deletion of the objectionable clause confirms that understanding. He said:
“The matter of inland waters is one that has been defined time and time again by the courts, not, I believe, in any one all-inclusive definition, but it was felt [by those who objected to the definition during the hearings] that the use of these words were [sic] an attempted legislative definition of the term 'inland waters,’ and it was inadvisable for us in this bill, which is a transfer of title, to attempt to make law in the other field of what is or is not inland water.
“The use of the language, it was felt, would probably raise questions that have not been raised, whereas the present definitions are in- the decisions and available to the court.”
“Senator MALONE. The inland waters had a special master for that particular job, did they not, and that is now under consideration, that is, his report is under consideration by the Supreme Court?
“Senator CORDON. With respect to California, and a portion of California coast; yes.” Senate Hearings 1304-1305.
“Senator CORDON. It was not the chairman’s view that we were attempting to draw a line delimiting inland waters, but that we were using a term that is well known in the law and is defined by the Court in the California case, for instance, and in the Louisiana case, I assume. That line might still be defined, even though the area may not now have the same legal status as it had before.”18 Id., at 1376. (Emphasis added.)
California fastens on a statement made in the Committee Report with regard to the eliminated definition:
“The elimination of the language, in the committee’s opinion, is consistent with the philosophy of the Holland bill to place the States in the position in which both they and the Federal Government thought they were for more than a century and a half, and not to create any situations with respect thereto.” S. Rep. No. 133, 83d Cong., 1st Sess., 18.
From this California reasons that “inland waters” must have been intended to encompass all waters which the States “thought” were inland waters, for that is the only way in which the Act can now be interpreted to effectuate fully its supposed “philosophy” of granting to the States all submerged lands within their historic boundaries.
If such a view of the bill’s purpose is accepted as of the time that the Committee Report was written, there is, nonetheless, no inconsistency whatsoever between that
“this bill has two approaches to a determination of the area of its application. The first approach is that of the boundaries of the States when they came into the Union; second, an election to any State that has not done so to extend its boundary 3 geographical miles from its present coastline, as that term is described in the present tense in the bill.” Senate Hearings 1374.
Only with the adoption of the three-mile limitation on the Atlantic and Pacific Oceans and the three-league limitation in the Gulf of Mexico did the interpretations of historic boundaries and inland waters become operationally related, and any inconsistency thus created between the limitation and the prior philosophy of the Act shows only that, to the extent the limitation would come into play, the philosophy was modified.
“. . . I think the amendment has very little effect. But I am perfectly willing to meet the suggestions of my friends, some of whom have been opponents, and some of whom have been supporters of the joint resolution, to the effect that they would like to have the language more clearly spelled out than it was in the original measure, to the effect that there is no intention whatsoever to grant boundaries beyond 3 geographical miles in either the Atlantic or the Pacific, and that this Congress knows of no possible situation under which greater boundaries are claimed or could be granted in the Gulf of Mexico than 3 leagues; and, in that case, this Congress knows, although this amendment does not indicate it, that*156 there are but 2 States affected by that particular situation.” 99 Cong. Rec. 4116.
Senator Holland was aware of California’s expansive inland water claims, but thought them altogether untenable.
“Mr. HOLLAND. My understanding is that California has no provable case beyond 3 miles from its mainland; and that as to the islands, its provable case would be 3 miles around each of the islands. I so stated in the hearings on this matter.
“Mr. DOUGLAS. That is a consummation devoutly to be desired, but I am not at all satisfied that that is what the Senator’s joint resolution would accomplish, because the coastline is not fully and clearly defined.
“Mr. HOLLAND. Under the joint resolution, no such contention could be maintained.
“Mr. DOUGLAS. Is the Senator certain of that?
“Mr. HOLLAND. That is what I believe, and that is what every legal authority I have consulted on the subject believes. Incidentally, the only reason why there was some thought to the contrary was some wording in the original joint resolution, which has been omitted, which would have made the outer boundary of inland waters farther out than that which is now provided by the joint resolution. The joint resolution simply continues the outer boundary of inland waters pursuant to the decisions of the Supreme Court already made. . . .
“The Senator from Florida knows full well that if the United States Supreme Court should change its mind as to what constituted the outer limits of inland waters, and should change it to a sufficient degree,*157 it could open up, not only under this joint resolution, but of its own initiative, questions which would reach out much farther than anything we have been talking about here.
“The Senator from Florida believes that the laws, as announced over and over and over again by the Supreme Court, as to the delimitation of inland waters, are sufficiently fixed, definite, and certain so that it would require a complete, cataclysmic change of the Supreme Court’s philosophy in that field to afford any hope for an extension of the boundaries of the good State of California so that they would go out beyond the islands as to all areas contained within an outer line. There is no way for us to foreclose the Supreme Court from changing its mind. It might change its mind with reference to inland waters and their delimitation. But failing, such change, the Senator from Florida cannot see how, under this joint resolution, there could possibly be any serious question affecting California or any other State.” 99 Cong. Rec. 2756-2757.
Senator Holland did not wish to foreclose California from arguing (as it has done both here and before the Special Master) that its waters are inland within the appropriate judicial definition, but it was his opinion that no such definition would permit California’s claim to all waters shoreward of their remote islands to prevail. Congress could have defined inland waters as it wished for the purely domestic purposes of the Submerged Lands Act. See United States v. Louisiana, 363 U. S. 1, 30-36. It could have adopted California’s theory, or the Special Master’s theory, or any other. Instead, it chose to leave the definition of inland waters where it found it — in the Court’s hands. The Act does not reveal a particular intent that courts should broadly interpret “inland waters” so as to restore California to its historic expectations re
The Meaning of “Inland Waters” in the Submerged Lands Act Should Conform to the Convention on the Territorial Sea and the Contiguous Zone.
We turn, then, to determining the judicial definition of “inland waters.” It immediately appears that the bulk of cases cited by Congressmen during debates on the Submerged Lands Act for the proposition that inland waters have “been defined time and time again by the courts”
Since the filing of the Special Master’s Report the policy of the United States has changed significantly. Indeed it may now be said that there is a settled international rule defining inland waters. On March 24, 1961, the
The United States contends that we must ignore the Convention on the Territorial Sea and the Contiguous Zone in performing our duty of giving content to “inland waters” as used in the Submerged Lands Act, and must restrict ourselves to determining what our decision would have been had the question been presented to us for decision on May 22, 1953, the date of enactment. At that time there was no international accord on any definition of inland waters, and the best evidence (although strenuously contested by California) of the position of the United States was the letters of the State Department which the Special Master refused to treat as conclusive.
We do not think that the Submerged Lands Act has so restricted us. Congress, in passing the Act, left the responsibility for defining inland waters to this Court.
IV.
Subsidiary Issues.
Once it is decided that the definitions of the Convention on the Territorial Sea and the Contiguous Zone apply, many of the subsidiary issues before us fall into place.
1. Straight Base Lines. — California argues that because the Convention permits a nation to use the straight-baseline method for determining its seaward boundaries if its “coast line is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity,” California is therefore free to use such boundary lines across the openings of its bays and around its islands.
California relies upon Manchester v. Massachusetts, 139 U. S. 240, for the proposition that a State may draw its boundaries as it pleases within limits recognized by the law of nations regardless of the position taken by the United States. Although some dicta in the case may be read to support that view, we do not so interpret the opinion. The case involved neither an expansion of our
2. Twenty-jour-mile Closing Rule. — The Convention recognizes, and it is the present United States position,
California asserts that the Santa Barbara Channel may be considered a “fictitious bay” because the openings at both ends of the channel and between the islands are each less than 24 miles.
By way of analogy California directs our attention to the Breton and Chandeleur Sounds off Louisiana which the United States claims as inland waters, United States v. Louisiana, 363 U. S. 1, 66-67, n. 108. Each of these analogies only serves to point up the validity of the United States’ argument that the Santa Barbara Channel should not be treated as a bay. The Breton Sound is a cul de sac. The Chandeleur Sound, if considered separately from the Breton Sound which it joins, leads only to the Breton Sound. Neither is used as a route of passage between two areas of open sea. In fact both are so shallow as to not be readily navigable.
Evidence submitted to the Special Master on the extent of international use made of the Santa Barbara Channel was sparse. What evidence there was indicated the usefulness of the route, but did not specify whether the ships so using it were domestic or international.
3. Historic Inland Waters. — By the terms of the Convention the 24-mile closing rule does not apply to so-called “historic” bays.
Since the 24-mile rule includes Monterey Bay, we do not consider it here. As to Santa Monica Bay, San Pedro Bay, and the other water areas in dispute, we agree with the Special Master that they are not historic inland waters of the United States.
California contends that two studies of the criteria for determining historic waters have been made since the Special Master filed his report
On the evidence, California’s claim that its constitution set a boundary beyond the bays and islands is arguable, but many of the state statutes drawing county boundaries which supposedly run to the limit of the state boundaries cut the other way by indicating a line only three miles from shore.
The United States disclaims that any of the disputed areas are historic inland waters. We are reluctant to hold that such a disclaimer would be decisive in all circumstances, for a case might arise in which the historic evidence was clear beyond doubt. But in the case before us, with its questionable evidence of continuous and exclusive assertions of dominion over the disputed waters, we think the disclaimer decisive.
4. Harbors and Roadsteads. — The parties disagree as to whether inland waters should encompass anchorages beyond the outer harborworks of harbors. The Convention on the Territorial Sea and the Contiguous Zone (Art. 8) states without qualification that “the outermost permanent harbour works which form an integral part of the harbour system shall be regarded as forming part of the coast.” We take that to be the line incorporated in the Submerged Lands Act.
As to open roadsteads used for loading, unloading and anchoring ships, the Convention (Art. 9) provides that such areas should be included in the territorial sea, and, by implication, that they are not to be considered inland waters. We adopt that interpretation.
5. The Line of Ordinary Low Water. — Along the California coast there are two low tides each day, one of which is generally lower than the other. The assertion of the United States, with which the Special Master agreed, is that the line of ordinary low water is obtained by taking
We hold that California’s position represents the better view of the matter. The Submerged Lands Act defines coastline in terms of the “line of ordinary low water.” The Convention (Art. 3) uses “the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State” (i. e., the United States). We interpret the two lines thus indicated to conform, and on the official United States coastal charts of the Pacific Coast prepared by the United States Coast and Geodetic Survey, it is the lower low water line which is marked.
6. Artificial Accretions. — When this case was before the Special Master, the United States contended that it owned all mineral rights to lands outside inland waters which were submerged at the date California entered the Union, even though since enclosed or reclaimed by means of artificial structures. The Special Master ruled that lands so enclosed or filled belonged to California because such artificial changes were clearly recognized by international law to change the coastline. Furthermore, the Special Master recognized that the United States, through its control over navigable waters, had power to protect its interests from encroachment by unwarranted artificial structures, and that the effect of any future changes could thus be the subject of agreement between the parties.
The United States now contends that whereas the Submerged Lands Act recognized and confirmed state title within all artificial as well as natural modifications to the shoreline prior to the passage of the Act, Congress meant to recognize only natural modifications after the date of the Act. The Act, however, makes no specific reference to artificial accretions, and nowhere in the legislative history did anyone focus on the question.
With the modifications set out in this opinion we approve the recommendations of the Special Master. The parties, or either of them, may, before September 1, 1965, submit a proposed decree to carry this opinion into
It is so ordered.
67 Stat. 29, 43 U. S. C. §§ 1301-1315 (1958 ed.).
The late William H. Davis of New York City.
The segments were as follows:
1. From Point Conception to Point Hueneme;
2. San Pedro Bay;
3. From the southern extremity of San Pedro Bay to the western headland at Newport Bay;
4. Crescent City Bay;
5. Monterey Bay;
6. San Luis Obispo Bay;
7. Santa Monica Bay.
We directed the Special Master to recommend answers to the following questions:
“Question 1. — What is the status (inland waters or open sea) of particular channels and other water areas between the mainland and offshore islands, and, if inland waters, then by what criteria are the inland water limits of any such channel or other water area to be determined ?
“Question É. — Are particular segments in fact bays or harbors constituting inland waters and from what landmarks are the lines marking the seaward limits of bays, harbors, rivers, and other inland waters to be drawn ?
“Question S. — By what criteria is the ordinary low water mark on the coast of California to be ascertained?” 342 TJ. S. 891.
California’s claim to the “overall unit area” runs from Point Conception to Richardson Rock (21 miles across water), to San Miguel Island, to Santa Rosa Island, to Gull Island; thence to Begg Rock (35.8 miles), to San Nicolas Island, to San Clemente Island (43 miles); thence back to the mainland at Point Loma (56.8 miles). San Nicolas and San Clemente Islands are over 50 miles from shore. See Map attached as Appendix C to the dissenting opinion, post, at 178.
To determine whether a coastal indentation is of sufficient depth and shape to be inland water, the Boggs formula would (1) draw the closing line across the mouth of the indentation; (2) draw a belt around the shore of the indentation (similar to a small marginal belt) having a width equal to one-fourth the length of the closing line across the entrance; (3) compare the remaining area inside the closing line with the area of a semicircle having a diameter equal to one-half of the length of the closing line, and if the enclosed area is larger than that of the semicircle, the indentation is inland water. Boggs, Delimitation of the Territorial Sea, 24 Am. J. Int’l L. 541, 548.
The Special Master recommended as follows:
“Question 1: The channels and other water areas between the mainland and the offshore islands within the area referred to by California as the ‘over-all unit area’ are not inland waters. They lie seaward of the baseline of the marginal belt of territorial waters, which should be measured in each instance along the shore of the adjoining mainland or island, each island having its own marginal belt.
“Question S: No one of the seven particular coastal segments now under consideration for precise determination and adjudication is a bay constituting inland waters. The landmarks from which the lines marking the seaward limits (the straight-line segments of the baseline of the marginal belt) of bays, harbors, rivers and other inland waters are to be drawn, are as follows:
“Bays
“The extreme seaward limit of inland waters of a bay is a line ten nautical miles long. For indentations having pronounced headlands not more than ten nautical miles apart, and having a depth as hereinafter defined, a straight line is to be drawn across the entrance. Where the headlands are more than ten nautical miles apart, the straight line is to be drawn across the indentation at the point nearest the entrance at which the width does not exceed ten nautical miles. In either case the requisite depth is to be determined by the following criterion: The envelope of all arcs of circles having a radius equal*145 to one-fourth the length of the straight line shall be drawn from all points around the shore of the indentation; if the area enclosed by the straight line across the entrance and the envelope of the arcs of the circles is greater than that of a semicircle with a diameter equal to one-half the length of the line across the entrance, the waters of the indentation shall be regarded as inland waters; if otherwise, the waters of the indentation shall be regarded as open sea.
“Harbors (Ports)
“In front of harbors the outer limit of inland waters is to embrace an anchorage reasonably related to the physical surroundings and the service requirements of the port, and, absent contrary evidence, may be assumed to be the line of the outermost permanent harbor works.
“River Mouths
“Where rivers empty into the sea, the seaward limit of inland waters is a line following the general direction of the coast drawn across the mouth of the river whatever its width. If the river flows into an estuary, the rules applicable to bays apply to the estuary. “Landmarks
“Where pronounced headlands exist at tributary waterways, the appropriate landmark is the point of intersection of the plane of ordinary low water with the outermost extension of the natural headland. Where there is no pronounced headland, the landmark is the point of intersection of the ordinary low-water mark with a line bisecting the angle between the general trend line of the ordinary low-water mark along the open coast and the general trend line of the ordinary low-water mark along the shore of the tributary waterway.
“Question 8: The ‘ordinary low-water mark on the coast of California’ is the intersection with the shoreline (as it exists at the time of survey) of the plane of the mean of all low waters, to be established, subject to the approval of the Court, by the United States Coast & Geodetic Survey from observations made over a period of 18.6 years.” Report of Special Master 2-5 (footnotes omitted).
The Submerged Lands Act provides in relevant part:
“AN ACT
“To confirm and establish the titles of the States to lands beneath navigable waters within State boundaries and to the natural re*146 sources within such lands and waters, to provide for the use and control of said lands and resources, and to confirm the jurisdiction and control of the United States over the natural resources of the seabed of the Continental Shelf seaward of State boundaries.
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the ‘Submerged Lands Act.’
"TITLE I
“definition
“Sec. 2 [43 U. S. C. § 1301]. When used in this Act—
“(a) The term ‘lands beneath navigable waters’ means—
“(2) all lands permanently or periodically covered by tidal waters up to but not above the line of mean high tide and seaward to a line three geographical miles distant from the coast line of each such State and to the boundary line of each such State where in any case such boundary as it existed at the time such State became a member of the Union, or as heretofore approved by Congress, extends seaward (or into the Gulf of Mexico) beyond three geographical miles, and “(3) all filled in, made, or reclaimed lands which formerly were lands beneath navigable waters, as hereinabove defined;
“(b) The term ‘boundaries’ includes the seaward boundaries of a State or its boundaries in the Gulf of Mexico or any of the Great Lakes as they existed at the time such State became a member of the Union, or as heretofore approved by the Congress, or as extended or confirmed pursuant to section 4 hereof but in no event shall the term ‘boundaries’ or the term 'lands beneath navigable waters’ be interpreted as extending from the coast line more than three geo*147 graphical miles into the Atlantic Ocean or the Pacific Ocean, or more than three marine leagues into the Gulf of Mexico;
“(c) The. term ‘coast line’ means the 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;
“TITLE II
“lands beneath navigable waters within state boundaries
“Sec. 3 [43 U. S. C. § 1311]. Rights of the States.—
“(a) It is hereby determined and declared to be in the public interest that (1) 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, and (2) the right and power to manage, administer, lease, develop, and use the said lands and natural resources all in accordance with applicable State law be, and they are hereby, subject to the provisions hereof, recognized, confirmed, established, and vested in and assigned to the respective States or the persons who were on June 5, 1950, entitled thereto under the law of the respective States in which the land is located, and the respective grantees, lessees, or successors in interest thereof;
“(b)(1) The United States hereby releases and relinquishes unto said States and persons aforesaid, except as otherwise reserved herein, all right, title, and interest of the United States, if any it has, in and to all said lands, improvements, and natural resources;
“Sec. 4 [43 U. S. C. § 1312]. Seaward Boundaries. — The seaward boundary of each original coastal State is hereby approved and confirmed as a line three geographical miles distant from its coast line or, in the case of the Great Lakes, to the international boundary. Any State admitted subsequent to the formation of the Union which has not already done so may extend its seaward boundaries to a line three geographical miles distant from its coast line, or to the international boundaries of the United States in the Great Lakes or any other body of water traversed by such boundaries. Any claim heretofore or hereafter asserted either by constitutional provision, statute, of otherwise, indicating the intent of a State so to extend its bounda*148 ries is hereby approved and confirmed, without prejudice to its claim, if any it has, that its boundaries extend beyond that line. Nothing in this section is to be construed as questioning or in any manner prejudicing the existence of any State’s seaward boundary beyond three geographical miles if. it was so provided by its constitution or laws prior to or at the time such State became a member of the Union, or if it has been heretofore approved by Congress.”
One English, statute, or land mile equals approximately .87 geographical, marine, or nautical mile. The conventional “3-mile limit” under international law refers to three geographical miles, or approximately 3.45 land miles.
S. Rep. No. 133, 83d Cong., 1st Sess., 18.
99 Cong. Rec. 4116. Senator Anderson proposed a similar amendment while the bill was in committee. Hearings before the Senate Committee on Interior and Insular Affairs on S. J. Res. 13 and other bills, 83d Cong., 1st Sess., 1348 (hereinafter cited as Senate Hearings). After discussion the proposal was voted down, id., at 1416.
Closing Brief of California 14.
Senate Hearings 312-315, 1064-1065, 1085, 1304, 1378.
See also Senate Hearings 1285 (remarks of Senator Cordon).
Senate Hearings 275-280.
Id., at 1052.
Id., at 1374-1380.
Id., at 1380-1385.
In the later debates, Senator Cordon answered an assertion that the committee had rejected the Boggs formula by saying, “The committee, as I recall, and I think I am correct, neither accepted nor rejected the Boggs formula or any other formula.” 99 Cong. Rec. 2633. And see the material quoted in n. 23, infra.
See Senate Hearings 1415 (remarks of Senator Cordon).
See, e. g., 99 Cong. Rec. 2881, 2916, 3038-3040, 3549-3564, 3655-3656, 3884-3886, 4085-4086, 4094-4099, 4109.
99 Cong. Rec. 3655 (remarks of Senator Kilgore).
99 Cong. Rec. 2695, 3039 (remarks of Senator Daniel), 2746 (remarks of Senator Holland), 2881 (remarks of Senator Anderson), 2916 (remarks of Senators Anderson and Douglas). Senate Hearings 957 (remarks of Senator Holland).
Several amendments were offered and defeated which would have limited the grant to the international three-mile limit or to three miles from the shoreline around the entire coastal perimeter of the United States, thus cutting off any claims to a three-league limit by the Gulf Coast States. See 99 Cong. Rec. 4157, 4203, 4473-4478. The reason for the unacceptability of these amendments to the leaders of the measure, largely composed of Senators from the Gulf Coast States, is obvious, and had nothing to do with any particular concept of inland waters.
Senator Douglas introduced amendments specifically designed to prevent States from claiming as inland waters those water areas between the mainland and remote islands. Section 2 (c), as amended, would have read: “The term ‘coast line’ means the line of ordinary low water along that portion of the coast of the main continent which is in direct contact with the open sea and the line marking the seaward limit of inland waters, and in the case of any island seaward of such coast, means the line of ordinary low water around such island.” 99 Cong. Rec. 4240. (Amendments italicized.) The colloquy leading to the rejection of these amendments is extremely revealing in the total absence of hostility to the basic idea which Senator Douglas was pursuing and the absence of any understanding by the leaders of the measure that it embodied an historical definition of inland waters.
“Mr. DOUGLAS. Mr. President, this amendment is designed to clear up an ambiguity in the pending joint resolution and to conform to what the distinguished Senator from Florida [Mr. Holland] the author of the joint resolution, stated was its real intention.
“One of the problems connected with the joint resolution is the problem of where the base line is, from which the submerged lands seaward from the low-water mark are to be measured. Senate Joint Resolution 13 defines this location as the ‘coastline,’ but it is not precisely certain in my mind or in the mind of the Senator from Oregon [Mr. Cordon] whose interpretation I requested, what is meant by the word ‘coastline.’ In the main debate on the joint resolution, I pointed out that this definition might mean 1 of 2 things. First, it might mean, what I hoped it would mean; namely, the shoreline of the main continental land mass and the external limits of inland*159 waters; and then, in the case of islands, the shorelines of each of those islands.
“But I pointed out that probably there would be a contrary claim, particularly in the case of California, and that an attempt would be made to define the term 'coastline’ as being a line drawn from the main continent out to and along the outer edge of the outer islands lying off the coast. This is a tremendously important subject. It involves very substantial areas, particularly in the case of California. If it is the latter definition which is to be used, then the water between the remote islands — however far out — and the main continental land mass would become inland waters, not external waters, and all the intervening submerged lands would become the property of the coastal State.
“Mr. LONG. Mr. President, I can understand the argument made by the Senator from Illinois, but I believe his amendment completely fails to reach the objective he is striving to achieve.
“If one examines the testimony of the representative of the Department of State, he will see that it is the position of the State Department of the present administration, as it was also the position of the previous administration, and, so far as I know, of all other administrations, that the marginal sea begins Wherever the line of inland waters ends. That is a very simple position to take in the case of a straight coast line, as is the situation with regard to the State of Texas. There the shore line and the coast line are synonymous in almost all instances.
“However, the situation becomes more complicated when we consider a coast having many indentures, islands, sounds, coves, bays, and the like. At present there is a difference of opinion between the State governments and the Federal Government as to precisely where the line of inland waters is located. But it is well agreed, as it has always been agreed, that the marginal sea begins at the point where the fine of inland waters ends.
“I should like to apply that definition to the State of Louisiana. I regret that I do not have here a map of Louisiana for the purpose of demonstrating my point, but all who have made a study of the question agree that a body of water known as Chandeleur Sound is*160 inland water. In that area there is a large number of islands, each island close to another. It is agreed by both the Federal Government and the State government, and it has always been agreed, that Chan-deleur Sound is inland water. The effect of the Douglas amendment would be to make Chandeleur Sound a part of the high seas, although the Federal Government has never contended that Chandeleur Sound was a part of the high seas, and the State government has always claimed it was inland water.
“Likewise, in the case of bays, it is the position of the State Department that bays not wider than 10 miles are inland waters. The distance of 10 miles between headlands across the mouth of a bay marks the place where the marginal sea begins. The amendment offered by the Senator from Illinois would have the effect once again of declaring such a bay to be a part of the high seas, merely because it is wider than 6 miles between headlands.
“Obviously, the Senator from Illinois is submitting his own definition of inland waters. In effect, it is a definition of inland waters which does not have the support of a single State government in the United States; it does not have the support of the State Department; it is a definition that does not meet with the approval of the Department of Justice; it is a definition, in effect, that does not meet with the approval of a single department of either the Federal Government or the State governments.
“There is no authority for accepting the inference of this amendment, namely, that the definition of inland waters is that they begin at the shore line or where 3-mile lines from headlands intersect in a bay. There is no support for this type of amendment, other than that it appeals to the Senator from Illinois.
“The committee has struggled with this problem. The committee struggled with several different formulas for defining inland waters. Originally, the joint resolution provided that inland waters should include all bays, sounds, straits, and estuaries. However, there was some objection to that definition by the Department of Justice. The Department of Justice contended that it would be far more preferable not to attempt to define inland waters, but simply to use the words ‘inland waters,’ to meet the standard that those words would ordinarily suggest. Therefore, at the suggestion of the Department*161 of Justice, and I suppose with the support of the Department of State, the words ‘including all bays, estuaries, straits, and sounds/ were stricken from the joint resolution.
“I submit that the language of the joint resolution is the best agreement that could be reached, upon the advice of the competent officials of the State Department and the Justice Department, as well as the advice that the committee had available to it from all the witnesses who testified, and therefore we should retain the committee language rather than accept the definition of the Senator from Illinois.
“Mr. DANIEL. Is it not true that there are some islands off the main continent which are not as far as 3 miles distant, and that this amendment would confuse the situation with reference to them? . . . We would have to apply this amendment instead of the present rule of inland waters which permits both the Nation and the State to measure from the outer line along those islands.
“Mr. HOLLAND. . . .
"I think I understand what the Senator [Douglas] is trying to attain. What he is trying to attain is in complete accord with the belief of the Senator from Florida, that islands which are far remote from the coast, and clear beyond inland waters by any reasonable conception, have a 3-mile submerged shelf around each of them; and while that fact is clearly shown in the statement of international law furnished to the committee in the last Congress by the Secretary of State at that time, Mr. Dean Acheson, the proposed amendment would not effectuate that situation at all . . . .”
The amendment was defeated 50 to 26. 99 Cong. Rec. 4240-4243.
See, e. g., 99 Cong. Rec. 3110-3112 (remarks of Senator Hill).
The 1947 case raised the purely legal question — who owned the lands and mineral rights beneath the marginal sea belt? In deciding that they belonged to the United States the Court relied heavily on the international responsibilities of the Federal Government.
“But whatever any nation does in the open sea, which detracts from its common usefulness to nations, or which another nation may charge detracts from it, is a question for consideration among nations as such, and not their separate governmental units. What this Government does, or even what the states do, anywhere in the ocean, is a subject upon which the nation may enter into and assume treaty or similar international obligations.” 332 U. S. 19, 35 (footnote omitted).
The opinion also established that landlocked waters not a part of the open sea are not part of the marginal belt, and belong to the States. The only problem remaining in the way of actually fixing the location of the marginal belt, and hence the dividing line of ownership between the State and the United States, was that of determining where the open sea ends and landlocked waters begin. The-Court specifically left that question unresolved. It is precisely that problem of defining what constitutes open sea and what constitutes inland waters which we must decide- in the present case.
Resolution of that question will (1) determine for the present the location of the marginal belt which we claim against other nations, and (2) define the areas within which ships of foreign nations have no right of innocent passage. Unquestionably, the definitions of what constitutes open sea and inland waters is, to borrow the words of the 1947 opinion, “a subject upon which the nation may enter into and assume treaty or similar international obligations.” Negotiations at
Letter from Acting Secretary of State Webb to Attorney General McGrath, November 13, 1951, Senate Hearings 460; letter from Secretary of State Acheson to Attorney General McGrath, February 12, 1952, Senate Hearings 462.
See n. 5, supra. Neither the Special Master nor the United States treated the Boggs formula as having been the “definitive” United States position. The Special Master recommended it as an “appropriate technical method” for measuring the sufficiency of the depth of bays. Report of Special Master 26.
See n. 34, infra.
Letter from Dean Rusk, Secretary of State, to Robert Kennedy, Attorney General, January 15, 1963, II International Legal Materials 527.
See discussion and legislative history, Part II, supra.
See 99 Cong. Rec. 2633 (remarks of Senators Long and Cordon).
The Convention was approved by the Senate May 26, 1960, 106 Cong. Rec. 11196, and was ratified by the President March 24, 1961, 44 State Dept. Bull. 609. See Treaties in Force — January 1, 1965, 263.
In support of the position that we. should ignore the developments in the law and practice of nations respecting the concept of inland waters which have transpired subsequent to the passage of the Submerged Lands Act — a position which the Solicitor General frankly recognized in his oral presentation was not an easy one for the Government to maintain — the United States cites a statement made by Senator Cordon during the hearings.
“Those who prepared the bill over the years took the view — and that is the way the bill is before us — that 'coastline’ means the 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. That is in the present tense. It is the coastline as of now. We have confirmed here 3 miles from the coastline as of now. . . .
“If we attempt now to discuss a coastline of 1783, or whenever the Revolutionary War was concluded and the treaty was signed—*166 and I do not just now recall the date — if we attempt now to determine a coastline as of then, it would seem to me that we increase our difficulties beyond what, as I understand the bill, we envisioned in the first place, but which we left where they were.” Senate Hearings 1354-1355.
That statement was made in reply to a suggestion that a State should have the choice of extending its boundaries three miles from its present coastline or three miles from its coastline as of the time it entered the Union. Senator Cordon’s reply expresses his opposition to that idea on the ground that the exact location of the ancient shoreline would be extremely difficult to determine. It reveals no intent to restrict the courts in framing the definitions to be used to determine the present coastline.
Article 4 of the Convention provides:
“1. In localities where the coast line is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.
“2. The drawing of such baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters.
“3. Baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them.
“4. Where the method of straight baselines is applicable under the provisions of paragraph 1, account may be taken, in determining particular baselines, of economic interests peculiar to the region con*168 cerned, the reality and the importance of which are clearly evidenced by a long usage.
“5. The system of straight baselines may not be applied by a State in such a manner as to cut off from the high seas the territorial sea of another State.
“6. The coastal State must clearly indicate straight baselines on charts, to which due publicity must be given.”
Letter from Dean Rusk, Secretary of State, to Robert Kennedy, Attorney General, January 15, 1963, II International Legal Materials 527; Brief for the United States in Answer to California’s Exceptions 148.
The full text of Article 7 is as follows:
“1. This article relates only to bays the coasts of which belong to a single State.
“2. For the purposes of these articles, a bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation.
“3. For the purpose of measurement, the area of an indentation is that lying between the low-water mark around the shore of the indentation and a line joining the low-water marks of its natural entrance points. Where, because of the presence of islands, an indentation has more than one mouth, the semi-circle shall be drawn on a line as long as the sum total of the lengths of the lines across the different mouths. Islands within a,n indentation shall be included as if they were part of the water areas of the indentation.
“4. If the distance between the low-water marks of the natural entrance points of a bay does not exceed twenty-four miles, a closing line may be drawn between these two low-water marks, and the waters enclosed thereby shall be considered as internal waters.
“5. Where the distance between the low-water marks of the natural entrance points of a bay exceeds twenty-four miles, 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.
“6. The foregoing provisions shall not apply to so-called ‘historic’ bays, or in any case where the straight baseline system provided for in article 4 is applied.”
The parties stated that Crescent City Bay is no longer an area in dispute.
The United States asserts that “international law recognizes no principle of ‘fictitious bays.’ ” We find it unnecessary to decide that question. The Government states:
“The expression seems to have originated in a proposal by the Committee of Experts, made to the Fifth Session of the International Law Commission, suggesting a 10-mile rule for bays, a general 10-mile limit for straight baselines, providing that baselines should not be drawn to islands more than 5 miles from shore, and limiting baselines to 5 miles in groups of islands or between such groups and the mainland, except that in such a group one opening could be 10 miles. The latter situation'was called a‘fictitious bay.’ The Special Rapporteur adopted this proposal in an Addendum to the Second Report on the Regime of the Territorial Sea, International Law Commission, Fifth Session, 18 May 1953. English text, U. N. Doc. A/CN.4/61/Add.l, p. 7 and Annex, p. 4. The subject of groups of islands was postponed by the Commission in 1954 (Article 11, Report of the International Law Commission Covering the Work of Its Sixth Session (U. N. Doc. A/CN.4/88), p. 42), and there is no special provision on the subject in the Convention on the Territorial Sea and the Contiguous Zone as finally adopted. The Report of the International Law Commission on the Work of Its Eighth Session, p. 45, fn. 1 (U. N. Doc. A/C.6/L.378), makes clear that the original proposal on the subject was an attempt to formulate a rule and not an expression of a rule already in existence.” Brief for the United States in Answer to California’s Exceptions 149-150, n. 112.
The openings at the ends of the Santa Barbara Channel are 11 miles and 21 miles.
See Letter from Acting Secretary of State Webb to Attorney General McGrath, November 13, 1951. Senate Hearings 460. See also Senate Hearings 1084-1085 (remarks of Jack B. Tate).
The depth in general ranges between 6 and 12 feet according to Coast and Geodetic Survey Chart No. 1270, but there is no passage as much as 12 feet deep connecting the ends of the sounds. The sounds are “navigable waters” in the legal sense even in the parts too shallow for navigation. See United States v. Turner, 175 F. 2d 644, 647, cert. denied, 338 U. S. 851.
Testimony before the Special Master indicated that the channel provided a substantial amount of protection from the rough seas of the Pacific and was used as an alternate route of passage for ships “coming down from the Pacific Northwest.” (Tr. 595. See also Tr. 608.) In its appendix, p. 57, California points to a statement in
See Art. 7, § 6, supra, n. 36.
See generally, Juridical Regime of Historic Waters, Including Historic Bays, U. N. Doc. A/CN.4/143 (1962).
Article XII of the California Constitution of 1849 described the sea boundary of the State of California as follows:
“. . . thence running west and along said boundary line to the Pacific Ocean, and extending therein three English miles; thence running in a northwesterly direction and following the direction of the Pacific Coast to the 42d degree of north latitude, thence on the line of said 42d degree of north latitude to the place of beginning. Also all the islands, harbors, and bays, along and adjacent to the Pacific Coast.”
Ocean Industries, Inc. v. Superior Court, 200 Cal. 235, 252 P. 722 (1927); Ocean Industries, Inc. v. Greene, 15 F. 2d 862 (D. C. N. D. Cal. 1926) (Monterey Bay). People v. Stralla, 14 Cal. 2d 617, 96 P. 2d 941 (1939) (Santa Monica Bay). United States v. Carrillo, 13 F. Supp. 121 (1935) (San Pedro Bay).
Historic Bays, U. N. Doc. A/CN.13/1 (1957), and Juridical Regime of Historic Waters, Including Historic Bays, U. N. Doc. A/CN.4/143 (1962).
E. g., for San Diego County, see Cal. Stat. 1850, c. 15, § 2, p. 58; Cal. Stat. 1851, c. 14, §2, p. 172; Cal. Political Code 1872, §§3907, 3944; Cal. Political Code 1923, § 3945; Cal. Stat. 1919, c. 470, § 38, p. 895; Cal. Stat. 1923, c. 160, §38, p. 361; Cal. Govt. Code §23137; Cal. Stat. 1947, c. 424, p. 1069. Por Los Angeles County, see Cal. Stat. 1850, c. 15, §3, p. 59; Cal. Stat. 1851, c. 14, §3, p. 172; Cal. Stat. 1856, c. 46, § 1, p. 53; Cal. Political Code 1872, § 3945; Cal. Stat. 1919, c. 470, § 20, p. 877; Cal. Political Code 1923, § 3927; Cal. Stat. 1923, c. 160, §20, p. 343; Cal. Govt. Code §23119; Cal. Stat. 1947, c. 424, p. 1055.
See generally, Juridical Regime of Historic Waters, Including Historic Bays, U. N. Doc. A/CN.4/143, ¶¶ 80-105 (1962).
The United States Attorney for the Southern District of California participated as an amicus curiae in the Stralla case and supported the position of California. We do not consider this action so significant as to foreclose the United States in the controversy before us. Compare the discussion of actions taken by the Secretary of the Interior in United States v. California, 332 U. S. 19, 39-40.
See, e. g., 99 Cong. Rec. 2697 (remarks of Senator Cordon); Senate Hearings 1344-1345,1353-1358,1374.
See, e. g., Statement of Robert Moses and the discussion following it. Senate Hearings 137.
The United States points by analogy to judicial interpretations of the Swamp Land Act of 1850, 9 Stat. 519, to the effect that it granted only those lands which were swamp at the date of its passage. However, the terms of that Act were specific: “. . . those swamp and overflowed lands . . . which shall remain unsold at the passage of this act, shall be, and the same are hereby, granted . . and it granted lands sovereignty over which had never been thought to change because the nature of the land changed.
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