9 Professional Land Surveyors of Oregon | www.plso.org CONTRASTING BOUNDARIES conspiracy of natural events, so locking the oshore line down has become distinctly benecial to certain states, and it was for this reason that Congress literally invited SCOTUS to proceed just as it did in 2014 (FN 6). Given however, that rights to submerged lands everywhere within the boundaries of the US had already long been in place by the time this matter rose to prominence and garnered close attention in the middle of the Twentieth Century, a potentially legitimate question arises as to the constitutional consequences of any such judicial or Congressional intervention impacting the OSB line’s location. Our judiciary has long recognized that any legal action which results in the locational alteration of a boundary in any manner can potentially be successfully characterized as a title issue, whenever it can be shown to either reduce or expand any given title. Does anyone, at the local, state or federal level, have the authority to impact existing property rights in a potentially adverse manner by means of a unilateral declaration converting a previously ambulatory boundary which pertains to multiple properties into one that is xed in position? e answer is that only Congress has the authority to do so, but even an Act of Congress can constitute a taking of private property rights for public purposes, requiring compensation under the principle of eminent domain (FN 7). Although a judicial determination upholding state ownership of bedlands based on navigability does not constitute a taking, numerous cases at both the federal and state levels have conrmed that bedland title is just as subject to condemnation as upland title, so the position of boundaries both abutting and within submerged areas denitely can be an important factor in certain litigation. No such issue is presented by the OSB scenario however, because as we have previously established, that line’s primary function is to dene jurisdictional limits between governmental entities, and the position of that line has no legal connection with any privately held fee title, so ocial action pertaining to it’s location provides no basis for any claim that such action may represent a public taking of any private land rights (FN 8). Returning to the timeline of events leading up to the most recent involvement of SCOTUS with the OSB, we learn that it has indeed repeatedly required judicial attention over the decades, subsequent to the enactment of the Submerged Lands Act in 1953, as noted in the original March 2015 article previously referenced herein. Aer several years of relative tranquility, advances in drilling technology during the early 1960s, along with the resulting expansion of oshore exploration, brought closer scrutiny to the three mile territorial boundary, and California found itself highly motivated to seek to maximize the potential benet embodied in the 1953 Act. e eort launched by California in that regard was doomed however, the state met with judicial defeat once again in 1965, as documented in another SCOTUS ruling (381 US 139) that was focused upon the selection of the parameters with which to ascertain the actual location of the OSB. e true meaning and exact denition of the phrase “inland waters,” which had been used in craing the key locative language of the 1953 Act, was the primary point of contention at this time, and the presence of many islands comprising California territory further complicated the scenario. e evidence revealed that numerous options regarding how best to dene the line which would function as the “base line” for the OSB had been given very thorough consideration by Congress in developing the 1953 Act. SCOTUS observed that extensive Congressional debate had taken place pertaining to the controlling eect that should be given to islands, and the hypothetical possibility of adopting a shoreline locked into position at a certain historic date, such as 1783, had even been considered, but of course that proposition was ultimately rejected, since no one could prove where the coastal shoreline had actually been at any such remote time. e decision announced by SCOTUS at this time excluded several large bays from the denition of “inland waters”, disappointing California in that regard, and based on clear evidence that the unied continental shoreline was envisioned by Congress in formulating the 1953 Act, the High Court also rejected the suggestion that the presence of islands, some of which lay far beyond the three mile beltway, could operate to deect the OSB “baseline” seaward, in some areas over 50 miles from the mainland shore, as California for very obvious reasons ardently desired. Nonetheless, an independent 3 mile territorial belt around each relevant island was judicially approved, as illustrated in the aforementioned June 2015 article. SCOTUS explained the rationale underlying this ruling, in a manner which fully accords with the fundamental principle of boundary certainty, as follows: “Before today’s decision, no one could say with assurance where lay the line ... hence there could have been no tenable reliance on any particular line ... aer today ... expectations will be established and reliance placed on the line ... allowing future shis ... to alter the extent of the Submerged Lands Act grant would substantially undercut the deniteness of expectation which should attend it ... freezing it ... serves to fulll the requirements of deniteness and stability...”. Timeless principles such as reliance, deniteness and stability, which are among the paramount factors in boundary determination and resolution, were very appropriately invoked by the Court, providing ample justication for the outcome of this litigation. Just as importantly, although location was the core issue on this occasion, precision of location was not a factor in this equation, the judicial objective was simply to ascertain and clarify the Congressionally intended location of the OSB baseline in clearly understandable and » continues on next page »
PLSO May June 2016
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