United States v. Texas (339 U.S. 707)/Dissent Reed
Mr. Justice REED, with whom Mr. Justice MINTON joins, dissenting.

This case brings before us the application of United States v. State of California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889, to Texas. Insofar as Louisiana is concerned, I see no difference between its situation and that passed upon in the California case. Texas, however, presents a variation which requires a different result.

The California case determines, 332 U.S. page 36, 67 S.Ct. page 1667, that since 'paramount rights run to the states in inland waters to the shoreward of the low water mark, the same rationale leads to the conclusion that national interests responsibilities, and therefore national rights are paramount in waters lying to the seaward in the three-mile belt.' Thus the Court held, 332 U.S. page 39, 67 S.Ct. page 1668, that the Federal Government has power over that belt, an incident of which is 'full dominion over the resources of the soil under that water area, including oil.' But that decision was based on the premise, 332 U.S. pages 32-34, 67 S.Ct. pages 1665-1666, that the three-mile belt had never belonged to California. The California case points out that it was the United States which had acquired this seacoast area for the Nation. Sovereignty over that area passed from Mexico to this country. The Court commented that similar belts along their shores were not owned by the original seacoast states. Since something akin to ownership of the similar area along the coasts of the original states was thought by the Court to have been obtained through an assertion of full dominion by the United States to this hitherto unclaimed portion of the earth's surface, it was decided that a similar right in the California are was obtained by the United States. The contrary is true in the case of Texas. The Court concedes that prior to the Resolution of Annexation, the United States recognized Texas ownership of the three-league area claimed by Texas. 

The Court holds immaterial the fact of Texas' original ownership of this marginal sea area, because Texas was admitted on an 'equal footing' with the other states by the Resolution of Annexation. 5 Stat. 797. The scope of the 'equal footing' doctrine, however, has been thought to embrace only political rights or those rights considered necessary attributes of state sovereignty. Thus this Court has held in a consistent line of decisions that since the original states, as an incident of sovereignty, had ownership and dominion over lands under navigable waters within their jurisdiction, states subsequently admitted must be accorded equivalent ownership. E.g., Pollard's Lessee v. Hagan, 3 How. 212, 11 L.Ed. 565; Martin v. Waddell's Lessee, 16 Pet. 367, 10 L.Ed. 997. But it was an articulated premise of the California decision that the thirteen original states neither had asserted ownership nor had held dominion over the three-mile zone as an incident of sovereignty.

'Equal footing' has heretofore brought to a state the ownership of river beds, but never before has that phrase been interpreted to take away from a newly admitted state property that it had theretofore owned. I see no constitutional requirement that this should be done and I think the Resolution of Annexation left the marginal sea area in Texas. The Resolution expressly consented that Texas should retain all 'the vacant and unappropriated lands lying within its limits.' An agreement of this kind is in accord with the holding of this Court that ordinarily lands may be the subject of compact between a state and the Nation. Stearns v. State of Minnesota, 179 U.S. 223, 245, 21 S.Ct. 73, 81, 45 L.Ed. 162. The Court, however, does not decide whether or not 'the vacant and unappropriated lands lying within its limits' (at the time of annexation) includes the land under the marginal sea. I think that it does include those lands. Cf. Hynes v. Grimes Packing Co., 337 U.S. 86, 110, 69 S.Ct. 968, 982, 93 L.Ed. 1231. At least we should permit evidence of its meaning.

Instead of deciding this question of cession, the Court relies upon the need for the United States to control the area seaward of low water because of its international responsibilities. It reasons that full dominion over the resources follows this paramount responsibility, and it refers to the California discussion of the point. 332 U.S. at page 35, 67 S.Ct. at page 1666, 91 L.Ed. 1889. But the argument based on international responsibilities prevailed in the California case because the marginal sea area was staked out by the United States. The argument cannot reasonably be extended to Texas without a holding that Texas ceded that area to the United States.

The necessity for the United States to defend the land and to handle international affairs is not enough to transfer property rights in the marginal sea from Texas to the United States. Federal sovereignty is paramount within national boundaries, but federal ownership depends on taking possession, as the California case holds; on consent, as in the case of places for federal use; or on purchase, as in the case of Alaska or the Territory of Louisiana. The needs of defense and foreign affairs alone cannot transfer ownership of an ocean bed from a state to the Federal Government any more than they could transfer iron ore under uplands from state to federal ownership. National responsibility is no greater in respect to the marginal sea than it is toward every other particle of American territory. In my view, Texas owned the marginal area by virtue of its original proprietorship; it has not been shown to my satisfaction that it lost it by the terms of the Resolution of Annexation.

I would deny the United States motion for judgment.

Mr. Justice FRANKFURTER.

Time has not made the reasoning of United States v. State of California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889, more persuasive but the issue there decided is no longer open for me. It is relevant, however, to note that in rejecting California's claim of ownership in the off-shore oil the Court carefully abstained from recognizing such claim of ownership by the United States. This was emphasized when the Court struck out the proprietary claim of the United States from the terms of the decree proposed by the United States in the California case.

I must leave it to those who deem the reasoning of that decision right to define its scope and apply it, particularly to the historically very different situation of Texas. As is made clear in the opinion of Mr. Justice REED, the submerged lands now in controversy were part of the domain of Texas when she was on her own. The Court now decides that when Texas entered the Union she lost what she had and the United States acquired it. How that shift came to pass remains for me a puzzle.

Oct. 16, 1950. The petition for rehearing is denied. Mr. Justice JACKSON and Mr. Justice CLARK took no part in the consideration or decision of this application. 

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