The conservation of such petroleum deposits is essential because the United States needs oil vitally. Now that almost every vessel of the Navy, the Coast Guard, and merchant marine is driven by oil, the powers conferred on the Congress by the Constitution of the United States "to provide and maintain a navy" and "to regulate commerce with foreign nations and among the several States," can best be exercised by the conservation of petroleum deposits as provided in the proposed joint resolution.

Serious depletion of the oil in these petroleum deposits is now taking place. Recently the State of California and the city of Long Beach, Calif., have let two contracts which call for the drilling of at least 177 wells at Huntington Beach and at Long Beach-the two largest known submerged fields. These wells will be sunk on shore, whipstocked beneath the waters of the Pacific Ocean and bottomed in areas under consideration in the proposed joint resolution. Drilling of these wells has been started and will continue progressively until all are completed. None of this oil is needed at the present time and its production merely aggravates an existing overproduction situation. This drilling should be stopped, at least until it is determined by appropriate judicial proceedings just what rights the Federal Government has in these oil deposits. These wells alone will produce millions of barrels of oil and will deplete the oil reserves to that extent.

Recent studies show that the production of petroleum in California is excessive, relative to the source of supply, and that the industry has expanded its markets without regard to reasonable conservation. A large percentage of the State's refined petroleum products is shipped abroad, an enormous proportion of which is going to establish emergency war supplies for foreign nations. To one nation alone nearly 30,000,000 barrels of crude and refined products were shipped by the California oil industry during 1937; this quantity constituted nearly the entire shipment of the United States to that country and, furthermore, constituted over 40 percent of the excess production of the State. This flow of petroleum products has continued in increasing volume during the current year.

During the past 9 years the State's reserves have been depleted by nearly 20 percent, due primarily to withdrawals in excess of actual normal needs, whereas the reserves of the Nation outside of California have shown a very pronounced increase. When this state of affairs is considered, it becomes a matter of extreme importance in connection with the national defense that the oil reserves in this area should be built up rather than seriously and irreparably depleted.

The Navy Department is powerless to act in the premises until there is authorizing legislation passed by the Congress. Before the issue between those claiming adverse rights in these petroleum deposits and the Government may be settled by the courts, there must be asserted in behalf of all the people of the United States their right to conserve the oil therein for national need. Under the Constitution the authority for such an assertion of claim of right or declaration of policy in behalf of the people is lodged exclusively in the Congress. Neither the executive nor the judicial branches of our Government may legally or properly assert such right, declare such policy, or take authoritative action in the premises in the absence of a positive pronouncement by the Congress.

It is the opinion of the Navy Department that if the proposed joint resolution is enacted into law it will provide the means by which exploitation will be stopped and prevented, and the petroleum deposits underlying submerged lands adjacent to and along the coast of the State of California will be conserved for the future use of the Navy in line with the well-established policy of maintaining a naval petroleum reserve in the ground. Such legislation would be in the interest of national defense. The Navy Department recommends that the proposed joint resolution be enacted.

The proposed joint resolution is in accord with the program of the President. Sincerely yours, CHARLES EDISON, Acting. Senator CONNALLY. Would it interrupt you if I asked you a question?

Representative HOBBS. Not at all, Senator Connally. I will be delighted to have you do so.

Senator CONNALLY. In connection with the National Resources Committee, the Secretary of the Interior is a member of it, is he not? Representative HOBBS. Yes, sir.

Senator CONNALLY. Are you aware of a letter he wrote in which he explicitly and officially takes the same view that the opponents of this

resolution take, and he says to the addressee that he cannot entertain applications for such permits. Further in that letter he asserts the direct ownership of the States. Are you aware of that letter? I think Senator Sheppard has a copy in his hand. I just mention that because you brought the question up and because Secretary Ickes is a member of the National Resources Committee.

Representative HOBBS. I appreciate your inquiry. Have you a copy of it?

Senator CONNALLY. Yes; I think Senator Sheppard has a copy of it. Representative HOBBS. I am quite familiar with that letter, which was written in 1933, and simply asserted the uniform policy of the Department of the Interior that inasmuch as this was not public land that Department had no right to grant to the gentleman, whose name was well, I forget the name at the moment.

Senator CONNALLY. His name was Proctor.

Representative HOBBS. Yes; a gentleman named Proctor, who was applying for a permit to stake out a claim in submerged lands, to prospect for oil. The Secretary said he could not grant him a permit. And the Secretary quoted the case of Hardin v. Jordan, a case cited here today, in which the identical doctrine of Shively v. Bowlby was set forth. The Secretary of the Interior then goes on to say-if he ever saw the letter, and of course you recognize that we sign hundreds of letters we never read

Senator CONNALLY (interposing). But you are responsible for them if you sign them.

Representative HOBBS. All right. He goes on to say that this decision holds that the title to these lands is in the State, and therefore that is an additional reason why he cannot grant a permit to an individual to drill there.

But I might say that even if the Secretary of the Interior entertained such an erroneous opinion in 1933 he does not now, es evidenced by the fact that he is the chairman of this National Resources Committee, and 1933, you must remember is not 1939. You will recall the old saying "A fool never changes his mind whereas a wise man sometimes does."

Senator SHEPPARD. Mr. Chairman, for the purpose of the record may I have this letter from the Secretary of the Interior made a part of my remarks?

The CHAIRMAN. You may. (The letter is as follows:)

Mr. OLIN S. PROCTOR,

Long Beach, Calif.

DEPARTMENT OF THE INTERIOR,
Washington, December 22, 1933.

MY DEAR MR. PROCTOR: I have received, by reference from the Department of State, copies of your letters of October 15 and November 22.

As to the jurisdiction of the Federal Government over lands bordering on tidewater, the Supreme Court of the United States has held in the case of Hardin v. Jordan (140 U. S. 371 as follows:

"With regard to grants of the Government for lands bordering on tidewater, it has been distinctly settled that they only extend to high-water mark, and that the lands so granted inures to the State within which they are situated, if a State has been organized and established there. Such title to the shore and lands under water is regarded as incidental to the sovereignty of the State a portion of the royalties belonging thereto and held in trust for the public purposes of navigation and fishery-and cannot be retained or granted out to individuals by the United States.'

"

The foregoing is a statement of the settled law, and therefore no rights can be granted to you either under the Leasing Act of February 25, 1920 (41 Stat. 437), or under any other public-land law to the bed of the Pacific Ocean either within or without the 3-mile limit. Title to the soil under the ocean within the 3-mile limit is in the State of California, and the land may not be appropriated except by authority of the State. A permit would be necessary to be obtained from the War Department as a prerequisite to the maintenance of structures in the navigable waters of the United States, but such a permit would not confer any rights to the ocean bed.

I find no authority of law under which any right can be granted to you to establish your proposed structures in the ocean outside the 3-mile limit of the jurisdiction of the State of California, nor am I advised that any other branch of the Federal Government has such authority.

Sincerely yours,

HAROLD L. ICKES, Secretary of the Interior.

Senator SHEPPARD. You will note that the Secretary of the Interior makes the following statement on his own authority:

Title to the soil under the ocean within the 3-mile limit is in the State of California, and the land may not be appropriated except by authority of the State.

Representative HоввS. I might say that the Secretary holds no such view in 1939, and has not for some years, if he held it, as I doubt, in 1933.

The CHAIRMAN. I notice in the brief which was submitted, on page. 1, this statement:

This resolution has the expressed approval of the Departments of Justice, Interior, and Navy, and is certified as being in accord with the program of the President.

Representative HOBBS. That is right, sir.

The CHAIRMAN. And there is a letter from the Navy Department. Representative HоBBS. That is the Edison letter I just referred to. The CHAIRMAN. And I believe there is an approving report from the Interior Department.

Harry M. EDELSTEIN (Assistant Solicitor, Department of the Interior). Mr. Chairman, I have just handed in a report signed by Secretary Ickes. That letter indicates that Secretary Ickes has no objection to the proposed legislation, and points out certain technical questions which should be brought to the attention of the committee. The CHAIRMAN. While this matter is under discussion I will read the letter from Secretary Ickes, which is addressed to me [reading]: DEPARTMENT OF THE INTERIOR, Washington, March 27, 1939.

Hon. ALVA B. ADAMS,

Chairman, Committee on Public Lands and Surveys,

United States Senate.

MY DEAR SENATOR ADAMS: I have received the request of your committee for a report on S. J. Res. 92, introduced by Senator Nye.

This joint resolution sets aside as a naval petroleum reserve the petroleum deposits underlying submerged lands adjacent to and along the coast of California below low-water mark and under the territorial waters of the United States, subject to any superior vested right, title, or interest; and authorizes appropriate judicial proceedings to assert, ascertain, establish, and maintain the right and interest of the United States in such reserve.

Inasmuch as the resolution paves the way for a judicial determination of the right of the Government to the oil in the submerged lands off the coast of California and conserves that oil for the use of the Navy, should the courts determine that the United States has a right thereto, I have no objection to the amended proposed resolution.

I should, however, point out that section 1 of the resolution would create a naval petroleum reserve of the petroleum deposits only. The submerged lands

containing these deposits are not reserved. If the right of the United States to withdraw these deposits is established pursuant to the resolution, the use of some part of the submerged lands will, of course, be essential in the process of extracting the oil.

*

*

Furthermore, the latter part of section 2 of the resolution provides that the Attorney General is "to cause and effectuate by proper judicial proceedings the removal and ejectment of all persons now or hereafter trespassing upon or occupying the said submerged lands The phrase, "said submerged lands" must refer to the only description of submerged lands in the resolution, which is at the outset of section 1, to wit, "submerged lands adjacent to and along the coast of the State of California below low-water mark and under the territorial waters of the United States of America * * Though the reserve created by the resolution would cover only the petroleum deposits, the Attorney General is directed to prosecute judicial proceedings for the removal and ejectment of persons trespassing upon or occupying submerged lands.

I also have received the request of your committee for a report on S. J. Res. 24, also introduced by Senator Nye. It is our understanding that S. J. Res. 92 is intended as a substitute for S. J. Res. 24 and I, therefore, assume that the request for a report on S. J. Res. 24 is now academic.

I have been advised by the Bureau of the Budget that there will be no objection by that office to the presentation of this report to your committee.

Sincerely yours,

HAROLD L. ICKES, Secretary of the Interior.

Senator NYE. I might suggest that that letter is quite in keeping with the letter the Secretary of the Interior addressed to the chairman of the House Judiciary Committee, which was conducting hearings upon bills that were pending upon this issue last year, his letter being dated February 21, 1938.

Senator JOHNSON of California. Mr. Chairman, do I understand that the Secretary changes his opinion? I could not follow its reading very well. Is that the chairman's understanding of it, that the Secretary changes his opinion expressed in the letter that Senator Sheppard offered?

The CHAIRMAN. I do not want to express any opinion until I have a chance to compare them.

Senator CONNALLY. He merely says he is not in opposition to the resolution. He does not indicate his own view at all.

Representative HOBBS. Mr. Chairman, if I may now conclude, I will not take much longer. I want to draw as clearly as I may for the benefit of the committee the distinction between a proprietory right and a fee-simple title. There are many rights which do not come by grant. There are a number of rights that are just as clearly recognized as a fee simple title but which have in support of them no muniment of title whatsoever.

One illustration will suffice: Each and every person born into the world has the right to breathe air, and when one is deprived of the right to breathe air we call it murder. Yet no one of us has any patent, deed, or other grant to any part of the air, nor to the right to use any of it. I submit that that is a clear illustration of the distinction between a proprietory right and a fee simple title.

I wish to propound to the opponents of this measure just this one question: If, as shown in my brief you have, and which I ask you to read because it covers ground I am not going into because covered there; in that brief you will see dozens of decisions, and they might very well have been multiplied, in which it is held uniformly that the Federal Government can take every bit of the submerged soil, even though it be improved, we will say with oyster beds; it can take the piers and fill of a lumber concern when needed in aid of navigation;

if, therefore, the Federal Government can take it all, then why, in God's name, cannot it take a part of it?

The criticism of this resolution because it says "submerged lands" and not "oil deposits" in one place, is rather captious for the reason that petroleum deposits are spread through the sands of the sea bed. And if you can take it all why cannot you take the petroleum deposits in it in aid of these four constitutional powers? It is understood that we have the absolute proprietary right to the whole bed of the sea, in and under the territorial waters of the United States.

Now, then, as has been pointed out by the chairman, the Navy Department, the Interior Department, the Department of Justice, the Budget Bureau, have all approved this resolution and asked you to pass it. It is conceded to be in accordance with the program of the President.

I wish to propound this second inquiry: Not only if we can take it all, and why if we can do that have we not the right to take a part if needed; but also I go further and ask, why if California and Texas and other States are so absolutely certain of their title and of their ground in this matter, why do they not welcome the opportunity to submit this claim for adjudication to a competent court, so that they will come out, according to their theory, with an absolute approval of their position? I maintain that the reason they do not want to do that is because they are a little bit fearful, to say the least.

Senator JOHNSON of California. Oh, no. That is not it, butRepresentative HOBBS (continuing). I maintain that if the Federal Government is to have any claim capable of adjudication it must be asserted. This one word-if you forget everything else I say, do not forget the case of Gilman v. Philadelphia cited in that brief, in which it is said that the rights of the States are plenary, until the paramount constitutional right of the Nation has been asserted by appropriate legislation of Congress. That is, that it is necessary for Congress to act before the executive departments can do anything.

The CHAIRMAN. What distinction do you draw between the paramount constitutional right and any other constitutional right?

Representative HOBBS. There are powers conveyed in the Constitution to the National Government which are not self-executing but require enabling acts of Congress to put them into effect. These are some of them. These functions to be performed under those powers were not anticipated when the Constitution was drawn.

For instance, a seaplane base, I think would have to be specifically authorized by the Congress before we could disturb State plenary control over waters now controlled by a State. I think, clearly, when we used wind and coal and wood to propel our vessels but never heard of oil then, that this is a function under that power that was not thought of. Therefore I believe it is dormant until called into life and vitality by appropriate legislation of Congress.

I want to ask, in conclusion, why is it not a perfectly reasonable request of the executive departments of the Government dealing with this matter, to be allowed to submit this issue to adjudication by a competent court of justice? So that the court may say to California, and to other States if and when that issue may be presented through another resolution passed by the Congress, if it ever so acts: You are right, go ahead. It may say to Long Beach, Calif., or to any other municipality, you are right, go ahead.