Mr. MURDOCK. Would you be opposed to that kind of a resolution? Mr. FAIRCHILD. Personally I would not be.

Mr. MURDOCK. It seems to me that the very fact that during the last two Congresses Members of Congress have seen fit to raise this question, you create the cloud, and as long as even one Member of Congress has that idea you perpetuate the cloud.

There is just one way to get rid of the cloud, and that is to direct, as you say—and I think that you are probably right in limiting it to the type of resolution that you speak of the Attorney General to ascertain that question through the courts.

Mr. FAIRCHILD. I can see no objection from our standpoint to such a procedure, provided there is no flat declaration that "we own that property."

Why is there any need for such a declaration?

Mr. MURDOCK. I really cannot say; but certainly, if we adopt the Hobbs theory here, we disavow title in the United States; is not that true?

Mr. FAIRCHILD. That is true.

Mr. MURDOCK. If we follow his theory?

Mr. FAIRCHILD. But following the Hobbs theory on through, I believe it was he who stated that these lands were submerged soils and were not capable of ownership in the proprietary sense; and by the way, there was some gentleman who made an argument, who stated that he had found no decisions or no statements in the authorities upon the proposition that this interest in submerged soil was in the nature of a proprietary one.

To that, in answer to that question, I would refer him to Mr. Justice Storey in the Ann. 1 Fed. case 397, wherein Mr. Justice Storey says that

All the writers upon public law agree that every nation has exclusive jurisdiction to the distance of a cannon shot, or marine league, over the waters adjacent to its shores. * * Indeed, such waters are considered as part of the terri

tory of the sovereign.

And in Manchester v. Massachusetts, the Court comes along and recognizes that insofar as territorial sovereignty is concerned, the State continues to occupy the same status as it would if it had remained an independent nation, so far as territorial sovereignty is concerned, the right to extend its territory by the act of its legislature.

Then, William Scott comes along in the Anna, and he says:

We all know that the rule of law on this subject is "Terrae dominium finitur ubi finitur armorum vis," and since the introduction of firearms that distance has usually been recognized to be about 3 miles from the shore.

Which, freely translated, means that you can hold as much as you are able to hold; or the literal translation is the dominion of the land is bounded by the extent of the force of arms, or something of that: nature. The dominion of the earth is bounded as the force of arms or the dominion of the territory is bounded as the force of arms is bounded, which goes back to the literal translation, "You can hold as much as you are able to hold," and which is the whole theory upon. which this theory of international law or ownership or proprietary rights in the adjacent 3-mile limit is predicated.

Chief Justice Marshall came along as early as March 5, 1804, and said:

The authority of a nation within its own territory is absolute and conclusive. The seizure of a vessel within the range of its cannon by a foreign force is an invasion of that territory and is a hostile act which it is its duty to repel.

Now, if a seizure of a vessel within the 3-mile limit is a hostile act, certainly the seizure of the land itself within that 3-mile limit would be a hostile act, which the Nation would be bound to repel, and certainly the whole theory of the right to prohibit certain things and occurrences taking place in the waters over this 3-mile limit or within the 3-mile limit or over the soils arises out of the ownership of those soils, for when there is no ownership there can be no right to prohibit. If the State of Alabama, for instance, has no title to the lands extending out 6 leagues, in its case, to the island 6 leagues within its shores, if it has no title to the submerged soils, within those limits, then it has no authority whatsoever to prohibit a citizen of another State from coming over there and taking shrimp out of those waters. The right to prohibit proceeds entirely from the ownership of waters and the soil and Mr. Wheaton, in his treatise on international law, has expressed this whole thing rather admirably, and I think this is the fourth English edition by J. B. Atlay, section 187, page 292:

*

by the generally approved usages of nations, which forms the basis of international law, the maritime territory of every State extends: First. To the ports, harbors, bays, mouths of rivers, and adjacent parts of the sea enclosed by headlands belonging to the same State.

Second. To the distance of one marine league, or as far as a cannon shot will reach from the shore along all the coasts of the State.

Third. To the straits and sounds, bounded on both sides of the territory of the same State, so narrow as to be commanded by cannon shot from both shores, and communicating from one sea to another.

And then he concludes as follows:

The reasons which forbid the assertion of an exclusive proprietary right to the sea in general will be found inapplicable to the particular portions of the element included in the above designations.

Those reasons, of course, going back to the old proposition that you can only hold as much as you are able to enforce your jurisdiction upon by the force of arms; and the title of the Nation is no less precarious upon that point as to its uplands than it is as to its title to lands lying from low-water mark out to the 3-mile limit; so far as we are able to hold them they will be ours; and when we cease to be able to hold them, then we may recognize the possibility that Japan may come over and take them.

Mr. MURDOCK. May I ask one further question?

I do not believe, Mr. Fairchild, that you have touched upon this question and it is very important in my mind, as far as California is concerned.

Do you agree with Mr. Hobbs that under no circumstances could the submerged lands be considered as public lands?

Mr. FAIRCHILD. The courts have so held. Now, whether as an original proposition I would have agreed with that is a different matter, but the Supreme Court in U. S. v. Utah-and by the way, on Mr. Hobbs' theory one can recognize no distinction between lands underlying navigable rivers and lands extending out from the shore, if lands extending out from the shore to the 3-mile limit underlying navigable

waters are public lands within the meaning of that phrase as used by the Congress of that date, then lands underlying navigable rivers are likewise public lands and yet the Supreme Court of the United States has in many, many cases held with regard to that very type of State which came in under similar circumstances as California came, that title to lands underlying navigable rivers were vested in the State, so that is why I am unable to follow Mr. Hobbs in that theory, because I can't perceive the basis for the distinction which he draws between lands underlying navigable waters from the low-water mark out to the 3-mile limit as public lands and lands underlying navigable streams.

Now, this United States against Utah was a suit by the United States against the State of Utah, and as I recall, perhaps in that case there were involved oil lands, leases by the State on the one hand and by the Federal Government on the other, and Mr. Justice Hughes in that case, as I recall, wrote the opinion, and held that since these waters were navigable waters the title to these lands underlying those navigable streams was in the State.

Now, as I recall, the State of Utah came into the United States, or the Territory which later comprised the State of Utah, came into the United States by the treaty of Guadalupe-Hidalgo-the same treaty which converted the lands of which California was created as a State. If I am mistaken in that I wish someone would correct me, because I have not made a historical examination upon that.

If that be true, what basis may we have for distinguishing between the title for saying that the title to those lands underlying navigable waters in California are public lands, and therefore did not pass to the State under the express reservation whereas the Supreme Court of the United States has held in United States against Utah to the very contrary, and that is not the only case where it has been so held. There are many, many cases, involving identical propositions here, and if it were not taking up too much time of the committee already, upon the subject, I could go into that rather at length by quoting other cases, but I think that I have presumed too far upon your time.

I am unable to perceive any distinction, if distinction there be, between those two, upon the theory of public lands, and their ownership.

Mr. WALTER. Any questions?

I think that we can go for just a few minutes longer. Mr. Tolan, is there somebody from California that wants to start?

Mr. TOLAN. The arrangement was that Louisiana was to be heard next, unless

Mr. WALTER. We are not going to have a lot of time. I will have to close these hearings at noon tomorrow. We are going to come tomorrow morning at 10 o'clock.

Mr. TOLAN. I doubt if that can be done, Mr. Chairman. You have heard these other witnesses here quite extensively. You have heard from different parts of the United States, and we will try to make it just as brief as we possibly can, but I do not see how in the world you are going to finish in 2 hours tomorrow, Mr. Chairman.

Mr. WALTER. Of course, there is a report that is going to be taken up. Probably we will have to defer that.

Mr. TOLAN. There is just this situation, as I say.

141082-39-ser. 2-8

Men here from different parts of the United States, that have been asked to come here, and they will probably remain until, most of them, until Monday, when the hearings are taken up in the Senate, and now as far as I am personally concerned I am going to help you expedite it in every way that we possibly can, it took a little longer today than we intended, and we will have them right on tomorrow, as fast as we can, tomorrow.

Mr. WALTER. I was hopeful that there would be someone from California that could start this evening.

Mr. TOLAN. We can start if you want us to, but it is half past 5 now. Mr. WALTER. I would like to have somebody from California start. Mr. TOLAN. We have Congressman Dockweiler; that could probably take a few minutes.

STATEMENT OF HON. JOHN F. DOCKWEILER, OF THE FINANCE DEPARTMENT OF THE STATE OF CALIFORNIA

Mr. DOCKWEILER. Gentlemen of the committee, I stand before you representing the Finance Department of the State of California, and under that department is the State lands commission.

The State lands commission is the commission that has full authority and jurisdiction over the public lands of California.

I stand here too as a personal representative of the Governor of California, Culbert L. Olson. If he could be here present he would be here, but the press of State business prevents that.

I have a statement that I am going to go over very rapidly. The State of California has a coast line, exclusive of bays such as adjacent to San Francisco, of approximately 1,000 miles. Of this, approximately 62 miles are presently devoted to oil and gas opera

tions.

The oil and gas fields along the coast, together with pertinent information, are as follows:

El Capitan is the most northerly field, with two leases, having a coastal frontage of approximately one-third of a mile and an acreage of 55.5. The leases in this field, together with those at Elwood, Coal Oil Point-from which no commercial production has been had— and Rincon, were issued in 1929. The royalty prescribed to be paid to the State is 5 percent of the production or value thereof. As will be explained in more detail later, these leases were executed pursuant to chapter 303, Statutes of 1921, which was patterned after the Federal Leasing Act of 1920. One lease was issued at Coal Oil Point in Santa Barbara County, but all the wells are now abandoned, and no commercial production was ever attained.

At the Dincon field in Ventura County, five leases are now in existence comprising 653.6 acres with an approximate coast-line measurement of 111⁄2 miles.

The Summerland field southerly of Santa Barbara was discovered in 1894. At the height of production, from shallow wells, more than 100 wells had been drilled. Due to the absence of statutory authority, no royalties were collected from these wells until 1923 when an amendment was added to the State Mineral Leasing Act of 1921, which directed the consummation of leases with these operators. Since 1923 the production from this field has been of low gravity and

negligible in quantity. There are now two leases at Summerland comprising 79.2 acres with an approximate coast-line measurement of three-fourths of a mile.

The foregoing covers all commitments of the State northerly of Los Angeles. The areas now producing oil in the city of Los Angeles and city of Long Beach are not under State jurisdiction so they will not be discussed here. The remaining field under the jurisdiction of the State is located within the city limits of Huntington Beach.

Mr. WALTER. Are there any operations at all from which the State does not benefit?

Mr. DOCKWEILER. No operation whatsoever along our coast that the State does not benefit, and as the years went on we improved our oil leasing act and our average percentage now is about 13 percent, and even those that in the earlier days were not under any provision of the statutes, we have compelled them to make compromise with the State and agree to pay a royalty over that back period, on the assumption that it was State land.

Mr. SPRINGER. Just a question right there. Does the State draw the one-eighth royalty?

Mr. DOCKWEILER. That is approximately one-eighth-13 barrels out of 100.

Mr. SPRINGER. And the independent operator gets the rest?

Mr. DOCKWEILER. It goes up, the royalty increases with the volume of oil produced out of each well. If they are small wells, the royalty is low.

In 1933 a number of operators at Huntington Beach slanted their wells from upland drilling sites into the tidelands and submerged lands of the State. The attorney general in collaboration with the department of finance and other departments of the State sought injunctions to restrain the further taking of oil and gas of the State and 100 percent damages. Following a conference with the late Governor James Rolph, Jr., sought by the trespassers, the Governor advised the attorney general, and directed his director of finance, to compromise the claims of the State. Seventy easements were issued by the State to these trespassers covering 91 wells. Following the compromise, the total approximate area into which these wells had been drilled comprised 110 acres. The royalty reserved to the State from these wells was based upon a formula whereby the State would take its royalty in accordance with an average daily production of each well calculated over a 30-day period. The State's royalty from oil, gas, and natural gas for 1938 averaged 13.06 percent.

Mr. SPRINGER. You speak about trespassers there. Do you mean those operators who went in and the State was not getting the royalties?

Mr. DOCKWEILER. That is right, and that affected those who had drilled on highlands, on the upland of the coast, but slanted their drilling into the ocean, which would be calculated by engineers.

In March 1938, the legislature at a special session passed and the Governor approved the State Lands Act of 1938. This act created a commission consisting of the Lieutenant Governor, the State controller, and the director of finance, and vested it with the jurisdiction of all State public lands. More will be said about the State Lands Act of 1938 later; however, it should now be stated that this act em