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Mr. ELLIOT. I appear in opposition to the two resolutions.
Mr. MICHENER. The application recently made by the War Department with reference to the dumping of certain material in the water, did I understand you to say that that was spoiled material ?
Mr. ELLIOT. That is material excavated in the improvement of a channel.
Mr. MICHENER. Is it material that would in any way have anything to do with public health?
Mr. ELLIOT. It would be deposited, the material would be deposited, upon bottoms owned by the State.
Mr. MICHENER. I understand, but my point is this: Would the type of material in any way affect public health?
Mr. ELLIOT. No, sir.
STATEMENT OF PERCY HECENDORF, DISTRICT ATTORNEY, SANTA
BARBARA COUNTY, CALIF. Mr. HECENDORF. I am district attorney of Santa Barbara County, and I will be very short, because we have attempted not to have any duplication so I want merely to make a few observations on behalf of the position that the county of Santa Barbara takes in this situation.
I will file a resolution by the board of supervisors, and I wish to apologize for my voice. I have what they tell me is a Washington cold.
It is proper that I should be here now because the first wells on submerged lands of this country was the Summerland field in Santa Barbara.
Our position is simply this, that we have received from the submerged fields in our own county in excess of $2,000,000 by way of taxes, and, of course, that brings a problem, a twofold problemwe tax the oil and we likewise tax the personal properties or improvements in place.
Under the constitution of the State of California the $8,000,000 that has been received by the State of California, stated by Mr. Dockweiller, who represents the Governor, under the constitution the State schools have first call on all such moneys, and approximately 50 percent of the money received by the State is returned to the local units of the Government, and of that money—of the budgets that are made up by the local units; that is, the counties—approximately two-thirds goes for schools, and in excess of 60 percent is for schools.
They have a great number of fixed charges under our State constitution; therefore, the adoption, we feel, of any or all of these resolutions would greatly impair the educational situation in Santa Barbara County, and also throughout the whole State, because of the tremendous amount of revenue that is received.
We realize, too, that if this resolution of Mr. Hobbs, or any other resolution here, were adopted, another situation would develop aside from the taxing of the properties in place, and the personal property, that is the sale of the oil received from the submerged areas.
I can't conceive that any of you, as attorneys representing any of the purchasers of that oil, could take the chance to advise your clients to buy that oil, knowing that the title is involved, and if the United States should' in the end be held to have title to that oil, one of the members of the Department of Justice at the hearing a year ago stated in answer, I think, to Mr. Sumner's question, that if title were vested in the United States they would be forced to recover damages, and that would follow, so from that standpoint, we state, members of the committee, that California is vitally affected, and our county is vitally affected, and our county is affected from another standpoint; that is, the water-front development.
We have a large breakwater there, and the Federal Government is assisting us with pumping sand and rehabilitating our beaches and we have a great State Teachers' College in Santa Barbara that gives regular degrees, it is being moved from the east side of town to the west side of town, at the beach, and the State of California has by grant conveyed the tide and submerged areas to the city of Santa Barbara for the purpose of having a stadium and buildings erected thereon.
The stadium has been constructed, the north side is built into the hill on the upland, and the field has been graded, and the south portion of the bleachers in the end of the stadium in the submerged area has not been constructed, and I am satisfied that we couldn't sell bonds to anyone with this particular situation involved, and we would be tied up until a possible test case could go through.
We feel that it would be unfair, but, not to be selfish in the matter with our own development, this would affect every water-front development throughout the State, and, as Mr. Hobbs in all fairness and logic said, that this resolution, this clause 3, does not purport to stop
at California ; it is merely the entering wedge, and will affect all of the States in the Gulf and on the east seaboard.
Now, our next point on the title-I am not going to discuss that, it has been gone into time and time again-last year carried the cases, there are no new cases, and the gentlemen who have preceded me and those who are going to succeed me are going to file briefs, and I am going to list the cases from Pollard v. Hagan down to United States v. Utah, and the United States v. The Mission Rock Co., and I will submit these to the reporter to include in the statement.
(The cases referred to are as follows:) Pollard v. Hagan, 3 Harvard 212 (44 U. S. 219); Martin v. Waddell, 16 Peters 367; Manchester v. Massachusetts, 139 U. S. 240 ; Smith v. Maryland, 59 L. Ed. 269; Shively v. Bowlby, 152 U. S. 1 at 14–15; Appleby v. New York, 271 U. $. 364; Knight v. Land Assn., 142 U. S. 161; Barox Construction y. City of Los Angeles, 296 U. S. 10; Ashwander v. T. V. A., 297 U. S. 288-372; Weber v. State Harbor Comm., 85 U. S. 798; U. 8. v. Oregon, 295 U. S. 1; U. 8. v. Utah, 283 U. S. 64-91; U. 8. v. The Mission Rock Co., 189 U. S. 391.
Mr. HECENDORF (continuing). We feel certain members of this committee, that the case of the U. S. v. Utah, which determined as to these oil patents by the United States Government and the State, that under the navigable waters of the State, that the title is in the State, and in California, in U. S. v. The Mission Rock Co., the Supreme Court held that the submerged areas invested in the State and their naval base was formed as a naval reserve, and we feel that the two cases are absolutely controlling.
Now, further, Secretary Swanson states in his letter which he sent to the committee a year ago, which appears at page 54 in the original hearings on this Joint Resolution 208, he says:
: An examination of the cases enumerated and the cases therein cited will disclose that the controversies therein concerned submerged lands located under bays, harbors, rivers, or other inland waters within the respective territorial limits of the several States, and not submerged lands located under the oceans off the coasts of the continental United States, as referred to in Senate Joint Resolution 209 now under discussion.
However, the principle of law referred to is equally applicable for reasons hereinafter indicated, and the decisions in the cases above cited concerning navigable waters and submerged lands within the respective territorial limits of the States are controlling in the subject matter of this litigation.
We feel, therefore, the department that is now asking for this new theory concedes that the cases we rely upon do control.
also one other thing, on the question of the Hobbs Resolution, without discussing the case I want to make one observation on behalf of our county, and that is that, if the Hobbs Resolution is adopted, they, abandoning all question of title, merely the taking if there is a precedent necessary, that would cause us, gentlemen of this committee, to abandon a fundamental principle of our American constitutional system-namely, the due-process clause, and the taking of the property by eminent domain without just compensationbecause if there is a necessity that is determined here by this committee or by the Department of the Navy, and you reach and take the property, there is a complete distinction between that and mere regulation.
We all concede that, under the navigation clause, under the commerce clause, that you can regulate, but there is a fundamental cleavage between that regulation,
members of the committee, and the mere taking, whether it be out in California, or any other State, and taking something that belongs to the State, a municipality, or an individual.
It might be a wharf, or it might be any sort of a structure out within the 3-mile limit, and in this case the property is oil.
Captain McNemar conceded that we could not take the oysters and feed them to the members of the crew, and now in principle, if their doctrine is sound, there is no difference in principle between feeding fuel to the mechanical engines of the Navy and the human engine, there is no difference in principle, so we feel.
Mr. WALTER. That is if California ever owned these submerged lands.
Mr. HECENDORF. Assuming that the Utah case and others are correct, which we say they are.
Then we are placed upon a new theory, that they can take without compensation, and we must abandon that portion of our theory under our American form of government, but that is clear, as mentioned by Secretary Swanson in his same letter, which appears on the same page, where he said:
The sovereignty may be extended over the sea and the land
So to follow their theory to its logical conclusion would mean that, if in this area here, this is a submerged land, and where you gentlemen are sitting is the upland, we deplete the oil, or whatever may
be there, or the structure, and there is still a necessity we can go land ward and take it, and by carrying the logic further, if the Navy needs Chevrolet trucks or Dodge trucks, it can go on and take those from the parties that make those particular things, because there would be a necessity in the Navy.
We feel that that radical doctrine should not be adopted because the members of this committee know the great concern that went out through the country when the so-called court-packing bill was put out, which was apparently an attempt to secure a more liberal feeling on the part of the members of the Court.
In this case, we cannot help but feel that the adoption of this particular resolution, and this particular theory advanced by the other side, would mean not a change in view but would forever foreclose the sovereign people of the State of California from ever getting into court in the first instance because the Secretary of the Navy, in his letter, says that it is a political issue of which no court can decide.
We feel that that door should not be closed, and in passing I might state that last year I asked Senator Nye, who introduced 208, if he would be for the bill when it got on the other side, when it singled out California, and in answer to the question, the Senator said he would not, that'it would be unfair to single out a single State,
I understand the Senator has now a resolution in the same wording as Mr. Hobbs' resolution. I think that the Senator's position before is the clear position that should be followed here, that it is unfair, in the first place, if they are trying to single a State out, but worse than that, they admit that it applies to all of the States.
Now, there is an old saying that we should beware of Greeks bearing gifts.
Mr. Hobbs dispels certain things by the saving clause in the first paragraph of H. J. Res. 176 when he said:
subject also to any superior right, title, or interest of any person, or which may have become otherwise validly and lawfully vested.
Now I think that that is very important, because something occurred at the hearing the last time that has not been injected into the hearing at this time, and I want to at this time refer to the fact that during the last hearings there were statements made in the city of Los Angeles, in California, that the resolution was going to be adopted, and that certain persons having application before the Department of the Interior were going to have their applications validated on these submerged and tide lands.
Now it is important to note that in that respect-I am sorry that Mr. Murdock is not here; he asked the question, I think, of Mr. Hobbs, and Mr. Hobbs said that he didn't know what the Court would decidé in a case like this; it might decide that title was involved or it might decide that these were public lands, and you never can tell what theory the court is going on, in his opinion, and if that is true, he said, that it would in all events validate those existing permits, or at least the applications.
Now, Harry Ettelston, of the Solicitor's office, had this to say last year with respect to that problem.
He said there were two reasons why he hoped to have the adoption of this measure:
First, the legal problems involved are of extreme importance and exceedingly difficult, and it wants the court to finally settle them.
It is true that the Department of the Interior in the past has denied applications for oil and gas permits below the high-water mark. For a year we have been reconsidering the whole question at the instigation of some persons whose applications have been rejected in the past, and of new applications. We are still reconsidering the question.
Then you recall at the hearing there was one Thomas Blanton who appeared, and on page 8 it says:
Mr. BLANTON. Mr. Chairman, the position that I am going to take as the representative of certain citizens of the United States is that tidelands on the coast of California which are lands between low-water mark and high-tide mark should also be included in Senator Nye's resolution, as well as submerged land, the two being distinguished by submerged land being those below lowwater mark out to the 3-mile lmiit in the ocean.
And then Mr. Blanton went on, and after the opposition was on, he then made the statement at page 231 :
Mr. Chairman, Mr. Robert Jordan has been here for several weeks, representing California, whom I represent too, and, instead of making a statement, he would like permission of the committee to put in a short extract from the Encyclopedia of Texas, showing the development of oil in Oklahoma and Texas.
If the committee will allow me to do that and also a short statement from him with respect to his explorations in the tide lands and submerged lands out in California, if I may have that permission, I should like to include these.
Then at page 227, there was this statement by one Joseph Cunning. ham, after he submitted the letter:
It may be of interest to the committee if I state the fact that I made the first application to the Interior Department in 1934 for a permit to prospect for oil and gas on land below the high-water mark off the coast of California (which application was denied) and the direct cause of this committee meeting.
Now it appears, if the members of the committee will just for a second refer to a plat entitled “Application for Federal oil and gas leases along the California shore line,” you will see on page 1 the California coast line from Santa Barbara, Ventura, Los Angeles, and Orange Counties, and the little squares with numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10, respectively, are key numbers.
Now when you turn to the first page, which is map No. 1, you will see the application and the name of the applicant, and where it applies in Santa Barbara County, it is Schrim, is the name of the applicant, and the number is 053244, and you can proceed on through the pages, Mr. Chairman, and you can see how they have littered up the coast of Santa Barabara County, and then as you proceed further in the book, particularly the last two pages, you will see the Long Beach Harbor and the Los Angeles area, where these applications, or descriptions, simply overlap to such an extent that it would be almost humanly impossible for the Secretary ever to attempt to determine who should get what.
I say this difficulty is there, members of the committee, because in California our county fought this very same situation under the State tidal land act, before it was changed into the act that Mr. Dockweiller introduced yesterday.
Now it appears from the last page of this particular statement, that Joseph Cunningham appears as an applicant of that large group in the Huntington Beach area, and Mr. Robert E. Jordan's name ap