The Oregon Surveyor | Vol. 39, No. 3 8 CONTRASTING BOUNDARIES factor capable of controlling the outcome of the litigation. Instead, a majority of the Court saw the protection of US national security interests as the dispositive factor, and ruled accordingly, so the US emerged victorious on this occasion (FN 3). e SCOTUS perspective, favoring the federal position regarding the legal status of “the marginal sea”, over rights therein claimed not only by California, but by coastal states elsewhere as well, was not destined to prevail for long however. Responding to popular outrage over the physical limitation thus judicially imposed upon the rights of the states in 1947, Congress produced the Submerged Lands Act (FN 4) in 1953, eectively invoking the Equal Footing Doctrine with respect to the relevant ocean bedlands, for the benet of all of the coastal states, thereby negating the ecacy of the prior line of limitation upon state title, which SCOTUS had described in 1947 as the “ordinary low water mark” along the California coastline. Nonetheless, although state bedland title was by this means extended outward to the OSB in all coastal areas, that line was still recognized as being primarily jurisdictional in nature, and no need to dene its location with exactness arose during the ensuing years, as the coastal states were generally well satised to partake of the rich oceanbed resources thus Congressionally bestowed upon them. At least two important lessons for those who have occasion to work with land rights at the state and federal levels can be gleaned from the developments noted so far. First, comprehensive knowledge of the historical development of the law can bring great clarity to many obscure but crucial facets of the law, which may not otherwise be apparent to those who simply read the law as it stands in print today. In addition, Congressional action on land rights issues is very oen driven by prior judicial action, in other words, many Acts of Congress are in fact merely responses to developments that arise from the ongoing judicial interpretation of our vast body of codied law. As we have already seen, the June article squarely addressed some of the principal concerns expressed in the March article, by examining the historical development and purpose of the line in question, to provide a better understanding of why that line has been judicially handled in a non-typical manner, when compared to boundaries of title created by means of a conventional grant. Moving beyond considerations focused upon the level or degree of precision with which this territorial limitation line can or should be physically delineated, we reach a larger and deeper question raised by the initial article, which is whether or not breaking or abandoning the relationship of that line with the corresponding ambulatory shoreline is wise or justiable as a matter of principle. ere can be no doubt that the concept of selecting permanent coordinates of any kind, derived by any method, for the purpose of locking into a given position any line which has previously been ambulatory in nature, rather than xed, under the relevant principles of law, at least supercially appears to be antithetical to the principle of natural monument control. However, although coastal boundaries must necessarily be, and must always remain ambulatory, for obvious practical reasons, focused upon enabling unity of legal title to continue to coincide with the physical unication of the land itself despite the ravages of time, no such relationship is present to be maintained at the outer limits of the three mile beltway. As can readily be seen, the fact that no dry land exists in that remote oceanic location is not merely incidental or insignicant in this context. Quite the contrary, the inability to establish any form of typical upland monumentation in an isolated marine environment is a genuine factor in the decisive equation. As all experienced surveyors know, the value of any form of monumentation is largely dependent upon its proximity to the focal location, making the usefulness of a controlling monument which lies three miles away questionable at best (FN 5). e Submerged Lands Act, which was obviously instrumental to the formal establishment of the OSB, as we have already observed, sheds informative light upon the question of how intensively or armatively tied to our perpetually eroding continental land mass that line was actually intended to be. e rst indication that this physical connection was not intended to be absolute or precise is found in the language of the original Act, which refers to the “coast line” as a point of reference, without expressly identifying it however, as a natural monument intended to maintain permanent control over the oshore line that forms the subject matter of the Act. e second and more conclusive statement pertinent to the locational component of the oshore line is found in the supplemental language of the Act, as it has stood for fully 30 years now, which expressly provides that any portion of that line can be judicially “xed by coordinates”, thereby clearly negating any notion that this boundary must remain forever subject to the principle of monument control. As the author of the March article lamented, and as the author of the June article wisely acknowledged, it may well be unfortunate that the 1986 amendment, which added this supplemental language, included no guidance on the use of coordinates. Yet it’s not at all surprising that this omission, if it can be properly characterized as such, would be judicially regarded as inconsequential, at least until such time as some form of injury or damage stemming from the use of coordinates to dene some portion of the line in question arrives to be adjudicated. As can readily be seen, the practical reality of the matter is that the 1986 amendment resulted from Congressional recognition that large portions of our coastline are rapidly receding. Most notably along the highly vulnerable Gulf Coast, due to a
PLSO May June 2016
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