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including all aspects of exploration and development of Outer Continental Shelf resources.
See Fed. Reg., Vol. 40, No. 194, Oct. 6, 1975, p. 46143. The Outer Continental Shelf Lands Act places responsibilities in the Secretary of the Interior for the management and utilization of Outer Continental Shelf resources. The Advisory Board was established in accordance with the provisions of the Federal Advisory Committee Act (P.L. 92-463; 86 Stat. 770; 5 U.S.C. app.; approved Oct. 6, 1972).
Jurisdiction of the Federal Government
On March 17, 1975, the Supreme Court handed down an 80 opinion in United States v. Maine, et al., 420 U.S. 515 (1975), upholding the exclusive right of the Federal Government to exercise sovereignty rights over the seabed and subsoil, including its natural resources, between the three-mile limit of the territo rial sea and the edge of the Continental Shelf. The Court thus rejected the claims of the 13 States which border the Atlantic Ocean to exercise dominion over the area and title to its oil and gas resources.
The Atlantic States relied on their colonial charters to assert such rights. As successors in title to the Crown of England (and in the case of New York, to the Crown of Holland), they claimed that they had held, and still retained, rights in the Continental Shelf, both within and beyond the three-mile limit, since before the formation of the Union or their admission to it. They claimed that such rights had never been delegated to the United States and that Federal action in contravention of such rights violated the Tenth Amendment to the Constitution.
The United States filed a motion for summary judgment on the ground that there was no material issue of fact to be resolved. In the October 1973 term the Supreme Court referred the proceedings to Judge Albert B. Maris as Special Master. He submitted, on August 27, 1974, an extensive report of his findings and recommended that a decree be granted in favor of the United States. See the 1974 Digest, pp. 300_306. The United States as plaintiff supported in all respects the Report of the Special Master, but the defendant States submitted detailed exceptions. The controversy came before the Supreme Court for decision upon the exceptions of the Atlantic States and the reply of the United States to those exceptions.
In its decision of March 17, 1975, the Supreme Court endorsed the findings and recommendations of the Special Master and entered judgment for the United States. The Court relied upon the principle of stare decisis and affirmed its decision in United States v. California, 332 U.S. 19 (1947), United States v. Louisiana, 339 U.S. 699 (1950), and United States v. Texas, 339 U.S. 707 (1950) as relevant to the Atlantic States' historical claim. In those cases the Supreme Court had consistently rejected the claims of the States involved to their adjacent seabed, which the States in each case had tied to the theory of the historical right of the 13 original States to marginal seabed areas.
The Supreme Court's opinion in United States v. Maine stated:
The Special Master was correct in concluding that these cases, unless they are to be overruled, completely dispose of the States' claims of ownership here. These decisions considered and expressly rejected the assertion that the original States were entitled to the seabed under the three-mile marginal sea. They also held that under our constitutional arrangement paramount rights to the lands underlying the marginal sea are an incident to national sovereignty and that their control and disposition in the first instance are the business of the Federal Government rather than the States.
The States seriously contend that the prior cases, as well as the Special Master, were in error in denying that the original Colonies had substantial rights in the seabed prior to independence, and afterwards, by grant from or succession to the sovereignty of the Crown. Given the dual basis of the California decision, however, and of those that followed it, the States' claims of ownership prior to the adoption of the Constitution are not dispositive. Whatever interest the States might have had immediately prior to statehood, the Special Master was correct in reading the Court's cases to hold that as a matter of “purely legal principle ... the Constitution
the Constitution ... allotted to the Federal Government jurisdiction over foreign commerce, foreign affairs and national defense" and that "it necessarily follows, as a matter of constitutional law, that as attributes of these external sovereign powers of the Federal Government [it] has paramount rights in the marginal sea.” Report, at 23. [420 U.S. 522]
After upholding its previous rulings that paramount rights to the offshore seabed in here in the Federal Government as an incident of sovereignty, the Supreme Court went on to reject the contention of the defendant States that Congress had repudiated the doctrine of the California case by passing the Submerged Lands Act in 1953 (67 Stat. 29; 10 U.S.C. 7421 et seq.; 43 U.S.C. 1301 et seq.). On that point the Court stated:
It is also our view, contrary to the contentions of the States, that the premise was embraced rather than repudiated by Congress in the Submerged Lands Act of 1953.
The Submerged Lands Act did indeed grant to the States dominion over the offshore seabed within the limits defined in the Act and released the States from any liability to account for any prior income received from state leases that had been granted with respect to the marginal sea. But in further exercise of paramount national authority, the Act expressly declared that nothing in the Act
"shall be deemed to affect in any wise the rights of the United States to the natural resources of that portion of the subsoil and seabed of the Continental Shelf lying seaward and outside of [the marginal sea) all of which natural resources appertain to the United States, and the jurisdiction and control of which by the United States is confirmed." 43 U.S.C. 1302.
This declaration by Congress is squarely at odds with the assertions of the States in the present case. So too is the provision of the Act by which the grant to the States is expressly limited to the seabed within three miles (or three marine leagues in some cases) of the coastline, whether or not the States' historic boundaries might extend farther into the ocean. § 1301(b). . . . We agree with the Special Master when he said that “[i]t is quite obvious that Congress could reserve to the Federal Government all the rights to the seabed of the Continental Shelf beyond the three-mile territorial belt of sea (or three leagues in the case of certain Gulf States) only upon the basis that it already had the paramount right to that seabed under the rule laid down in the California case." Report, at 19.
Congress emphatically implemented its view that the United States has paramount rights to the seabed beyond the threemile limit when a few months later it enacted the Outer Continental Shelf Lands Act of 1953. 43 U.S.C. 1331 et seq. Section 3 of the Act
"declared [it] to be the policy of the United States that the subsoil and seabed of the Outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition as provided in this subchapter." [420 U.S. 524525)
In concluding its opinion, the Court took note of the extensive commercial activity since the passage of the Submerged Lands Act and the Outer Continental Shelf Lands Act which had been taken in reliance on those Acts and on prior court decisons. It also noted that neither the States nor their putative lessees had been in the slightest misled.
On May 12, 1975, the Supreme Court agreed to retain jurisdiction of the case in order to issue further orders to complete resolution of the dispute. 421 U.S. 958-959. On Oct. 6, 1975, the Court issued a two-page decree for the purpose of giving effect to its unanimous ruling of Mar. 17, 1975, in United States v. Maine and noted it was retaining jurisdiction to issue writs as may be necessary to "give proper force and effect to the decree.” 44 U.S. Law Week 3197 (1975).
General Regime At the Geneva session of the Third U.N. Conference on the Law of the Sea, which met March 17 to May 9, 1975, the Second Committee produced an informal single negotiating text, a part of which concerned the exclusive economic zone and included articles on the rights and duties of states with respect to the living resources in the coastal states' exclusive economic zone. Ambassador Thomas A. Clingan, Jr., Deputy Assistant Secretary of State for Oceans and Fisheries Affairs, in testimony before the Subcommittee on Oceans and International Environment of the Senate Foreign Relations Committee, on May 22, 1975, described the negotiation of the fisheries issues at the Conference as follows:
In Geneva, negotiations regarding fisheries issues were conducted at a more intensive level than in previous sessions of the Conference, and they built upon a framework of prior consultations among nations, both of a bilateral and small multilateral character. Much of the work product in the unified text, particularly as regards fisheries, was the result of intensive discussions among a group of about 30 nations working under the guidance of Minister Jens Evensen of Norway. At the same time other areas of the text reflect efforts of similar negotiating groups.
As was our hope, the unified negotiating text contains many of the fisheries concepts the United States has been advocating for a number of years. For instance, there are articles on conservation and full utilization, and separate treatment for highly migratory and anadromous species of fish. However, these articles will require careful study and must be analyzed in conjunction with the entire text to make a proper judgment as to their value and overall negotiability. I can comment on a few items on a very preliminary basis, however. First, the fisheries articles read as a whole have a strong tilt in the direction of advancing the interests of coastal states. This overall inclination would tend to strengthen our own position regarding our coastal fisheries.
The text contains an article recognizing the concept of full utilization, which has been advocated by the United States. Of course, the coastal state has a clear preference to take coastal stocks to the limit of its harvesting capacity, not to exceed the maximum yield. At the same time, the coastal state is required
to ensure through proper conservation measures that the living resources within the economic zone are not endangered by overexploitation.
the text provides for special treatment for anadromous and highly migratory species of fish. The salmon article appearing in the text was widely discussed both among states in whose waters such fish originate as well as states fishing for salmon. This article appears to have broad support within that group, and it represents a careful balancing of the interests of all of the states involved in both the Atlantic and Pacific salmon fisheries.
The tuna article is disappointing. On the positive side, it calls for the establishment of appropriate international fisheries organizations in each region and requires all states to participate in their work. However, the fisheries management and allocation aspects of this article are not good. Nevertheless, it is our view that we are probably better protected by having a single text to be further negotiated than we would have been had there been no article on tuna at all.
In addition to these articles ... there are provisions in the unified text giving coastal states the same rights over continental shelf fishery resources as presently provided for in the Continental Shelf Convention of 1958, a section dealing with the conservation of living resources beyond the limits of national jurisdiction and an article setting forth special rules for cooperation among states bordering on enclosed or semi-enclosed seas regarding exploitation of living resources. There are also articles calling for protection for marine mammals.
For the full text of Ambassador Clingan's statement of May 22, 1975, see Hearings on Law of the Sea before the Subcommittee on Oceans and International Environment of the Senate Committee on Foreign Relations, 94th Cong., 1st Sess., May 22, 1975, pp. 9–11. The single negotiating text produced by the Chairman of Committee II at the Geneva session of the U.N. Law of the Sea Conference is at A/CONF.62/
WP.8/Part II, May 7, 1975. For the text and the report of the U.S. delegation, see Hearings on Status Report on Law of the Sea Conference before the Subcommittee on Minerals, Materials and Fuels of the Senate Committee on Interior and Insular Affairs, 94th Cong., 1st Sess., June 4, 1975, Part 3, and The Third U.N. Law of the Sea Conference, Geneva Session, March-May 1975, Report to the Senate, 94th Cong., 1st Sess.
Carlyle E. Maw, Under Secretary of State for Security Assistance, in an address before the International and Comparative Law Center, Southwestern Legal Foundation, in Dallas on June 18, 1975, warned against unilateral solutions to law of the sea issues. He referred, in particular, to legislative proposals to extend unilaterally the U.S. contiguous fisheries zone to 200 miles. Excerpts from Mr. Maw's address follow: