* J.D., Suffolk University Law School; LL.M., University of Washington School of Law (Law and Marine Affairs); Assistant Professor of Environmental, Coastal and Ocean Sciences, University of Massachusetts at Boston.
1 For an excellent presentation on the role of the cod fishery in the settlement of North America, see generally Mark Kurlansky, Cod: A Biography of the Fish That Changed the World (1997).
2 Fugacious resources are those resources that, by their very nature, migrate or move (often across property lines and/or jurisdictional boundaries). While courts often refer to fugacious mineral resources when they talk of the movement of non-living resources (oil, gas, certain minerals) this paper uses the term in a broader sense to encompass living (e.g., fish) and non-living (e.g., oil and wind) resources.
3 John Locke, Second Treatise of Government, in Two Treatises of Government 327 (Peter Laslett ed., Cambridge Univ. Press 1960) (1690).
4 Pierson v. Post, 3 Cai R. 175 (N.Y. Sup. Ct. 1805).
5 Id.
6 See generally Garret Hardin, The Tragedy of the Commons, 162 Sci. 1243, 1243–48 (1968).
7 See, e.g., Missouri v. Holland, 252 U.S 416 (1920). States are trustees of animals ferae naturae within their boundaries, but the federal government retains certain paramount powers that may constrain state actions. See id. at 434.
8 See Submerged Lands Act, 43 U.S.C. � 1311(a) (2000).
9 See Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. � 1801 (b)(1) (2000).
10 See Nat’l Marine Fisheries Serv., Report to Congress: Status of Fisheries of the United States (1997), http://www.nmfs.noaa.gov/sfa/Fstatus.html (last visited Jan. 19, 2004).
11 See, e.g., Ransom E. Davis, Individually Transferable Quotas and The Magnuson Act: Creating Economic Efficiency in Our Nation’s Fisheries, 5 Dick. J. Envtl. L. & Pol’y 267 (1996); Harry N. Scheiber & Christopher J. Carr, From Extended Jurisdiction to Privatization: International Law, Biology, and Economics in the Marine Fisheries Debates, 1937–1976, 16 Berkeley J. Int’l L. 10 (1998); Alex Tynberg, The Natural Step and Its Implication for a Sustainable Future, 7 Hastings W.-Nw. J. Envtl. L. & Pol’y 73 (2000).
12 In United States v. Navajo Nation, the Supreme Court ruled that to state a claim for breach of trust, a tribe, as the beneficiary of a trust managed by the federal government (as trustee), “must identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties.” See 537 U.S. 488, 490 (2003). The Court noted that, “[a]lthough ‘the undisputed existence of a general trust relationship between the United States and the Indian people’ can ‘reinforce’ the conclusion that the relevant statute or regulation imposes fiduciary duties, that relationship alone is insufficient” to support a claim for breach of fiduciary duty based on violation of statute. See id. (internal citation omitted).
13 16 U.S.C. � 1851(a)(4).
14 The discussion on oil is taken in part from a previous work. See John Alton Duff, Royalty Relief Act Spurs Oil and Gas Exploration in Deep Waters of the Gulf of Mexico: United States Ratifies Maritime Boundary Treaty with Mexico, in 14 Ocean Yearbook 203–31 (Elisabeth Mann Borgese et al. eds., 2000).
15 See Charles Lester, Contemporary Federalism and New Regimes of Ocean Governance: Lessons from the Case of Outer Continental Shelf Oil Development, 23 Ocean & Coastal Mgmt. 7 (1994) (citing Minerals Mgmt. Serv., U.S. Dept. of Interior, Offshore Resource Evaluation Program: Background & Functions, OCS Report MMS 85-0091, 9 (1986)).
16 Proclamation No. 2667, 10 Fed. Reg. 12,303 (Sept. 28, 1945), reprinted in 4 Whiteman Digest � 2, at 756–57. President Truman stated, in part:
Now, Therefore, I, Harry S. Truman, President of the United States of America, do hereby proclaim the following policy of the United States of America with respect to the natural resources of the subsoil and sea bed of the continental shelf.
Having concern for the urgency of conserving and prudently utilizing its natural resources, the Government of the United States regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control. In cases where the continental shelf extends to the shores of another State, or is shared with an adjacent State, the boundary shall be determined by the United States and the State concerned in accordance with equitable principles. The character as high seas of the waters above the continental shelf and the right to their free and unimpeded navigation are in no way thus affected.
Id.
17 Press Release, White House (Sept. 28, 1945), reprinted in 4 Whiteman Digest � 2, at 757–58. The Press Release stated:
The policy proclaimed by the President in regard to the jurisdiction over the continental shelf . . . will . . . make possible the orderly development of an underwater area 750,000 square miles in extent. Generally, submerged land which is contiguous to the continent and which is covered by no more than 100 fathoms (600 feet) of water is considered as the continental shelf.
Id.
18 Id. The White House Press Release also stated:
Petroleum geologists believe that portions of the continental shelf beyond the three-mile limit contain valuable oil deposits. The study of sub-surface structures associated with oil deposits which have been discovered along the Gulf coast of Texas, for instance, indicates that corresponding deposits may underlie the offshore or submerged land. The trend of oil-productive salt domes extends directly into the Gulf of Mexico off the Texas coast. Oil is also being taken at present from wells within the three-mile limit off the coast of California. It is quite possible, geologists say, that the oil deposits extend beyond this traditional limit of national jurisdiction.
Id.
19 Id. Additionally, the Press Release noted:
The advance of technology prior to the present war had already made possible the exploitation of a limited amount of minerals from submerged lands within the three-mile limit. The rapid development of technical knowledge and equipment occasioned by the war now makes possible the determination of the resources of the submerged lands outside of the three-mile limit. With the need for the discovery of additional resources of petroleum and other minerals, it became advisable for the United States to make possible orderly development of these resources. The proclamation of the President is designed to serve this purpose.
Id.
20 See Joseph J. Kalo et al., Coastal and Ocean Law 287 (1994) (noting that on October 19, 1945, the U.S. Attorney General filed suit on behalf of the United States against the state of California).
21 United States v. California, 332 U.S. 19 (1947).
22 See United States v. Texas, 339 U.S. 707 (1950); United States v. Louisiana, 339 U.S. 699 (1950).
23 H.R. Rep. No. 83-215 (1953), reprinted in 1953 U.S.C.C.A.N. 1385, 1386. Legislative history for the bill that would ultimately become the Submerged Lands Act of 1953 made particular note of reconciling the federal-state dispute and establishing a stable framework upon which industry could rely. Id at 1385–86. The Legislative History states that:
In this almost interminable debate over the disposition of these submerged lands, one area of agreement shines like a beacon in this sea of debate—that is the acute and vital necessity of the immediate enactment of legislation to promote the exploration and development of the petroleum deposits known to be located in these areas.
The need for oil in the United States at the present time is commonly known. The strategic importance of oil to our economy and our defense efforts demand immediate action to alleviate a growing menace to our national welfare. Today, as in the past, persons, regardless of their views as to the proper solution of the disposal of these lands, have urged immediate enactment of legislation to permit development.
Moreover, the interminable litigation over these areas involving the Federal and State Governments as well as individual applicants has added nothing but confusion and controversy toward a proper solution of the problem. Such a state must not be permitted to exist indefinitely for the best interests of all parties involved.
In view of such conditions and circumstances, it is the opinion of the committee that to perpetuate this intolerable delay in the improvement of these lands because of the absence of legislation must not be continued.
Since the court decisions in the cases involving the States of California, Louisiana, and Texas, new development of the vast potentialities located in these lands has been brought almost to a complete standstill, particularly in the Gulf of Mexico. The litigation which was the primary cause of these stoppages threatens to further retard any progress. Therefore, the committee feels that permanent legislation covering all phases of this litigation must be enacted.
Id. at 1386.
24 For a brief history of the legislative attempts of 1951 and 1952, see id. at 1386–87. For a veto message of President Harry S. Truman, see Tidelands Bill Veto, 1952 U.S.C.C.A.N. 908–13.
25 Submerged Lands Act, 43 U.S.C. �� 1311–1312 (2000); see also Lester, supra note 15, at 10 (noting that one of President Eisenhower’s campaign pledges in 1952 was to return ownership of the submerged lands to the states). The state submerged lands off the gulf coasts of Florida and Texas extend approximately nine miles pursuant to their original sovereign charters. See United States v. Louisiana, 363 U.S. 121 (1960).
26 Outer Continental Shelf Lands Act, 43 U.S.C. �� 1331–1356 (2000).
27 Id. �� 1334–1356.
28 Id. � 1331(c). For statutory definitions of the terms “exploration,” “development,” and “production” see id. � 1331(k)–(m). The term “minerals” is defined at � 1331(q). A “lease tract” is an area not exceeding 5760 acres. Id. � 1337(b)(l).
29 Id. � 1337(b)(2).
30 Leonard LeBlanc, 1947 Shaking the Bounds of Land, 1997 Probing 10,000 ft. Depths, Offshore, May 1, 1997, at 82, 82.
31 See Dillard Hammett, Deepwater Drilling—Foresight, Risk, and Reward, 22 Exploration & Econ. Petroleum Industry 227, 231 (1984).
32 Id. at 232–33.
33 Id. at 233–34.
34 Id. at 234–35.
35 Id. at 231.
36 See C.L. Wickizer, Challenges of Future Deepwater Operations Examined, Oil & Gas J., Oct. 24, 1988, at 64.
37 See id.
38 Hillary Durgin, A New Day for Oil, Houston Chronicle, June 30, 1996, at A16.
39 The Auger recently surpassed the 100,000 barrels-per-day mark. See Shell’s Auger & Mars Platforms Pass Mark, Energy Alert, Aug. 20, 1997, 1997 WL 9037228. The Auger is Shell’s tension platform in the Gulf; see also Marshall De Luca, Seventy U.S. Gulf Deepwater Fields Awaiting Development; Twenty-six in Production, Offshore, Sept. 1997, at 38 (describing discoveries during 1997 and records set in water depth production, tieback distance to a platform, and subsea installation).
40 The western portion of the Gulf, those areas referred to as the western and central planning areas, lie west of 87(30’ in the U.S. Exclusive Economic Zone (EEZ).
41 Gulf Production Has Serious Challenges of Equipment, Technology, Regulations, The Energy Report, May 19, 1997, 1997 WL 8928018.
42 The Outer Continental Shelf Enhanced Exploration and Deep Water Incentives Act: Hearings Before the Oceanography, Gulf of Mexico and OCS Subcommittee, Merch. Marine and Fisheries Comm., 103rd Cong. 65–76 (1993) (testimony of Robert B. Stewart, President, National Ocean Industries Association).
43 Id. � 1337(b)(2)(B).
44 See, e.g., 141 Cong. Rec. H7481, 7485 (1995) (statement of Rep. Miller).
45 43 U.S.C. � 1337(a)(1)(4) (2000).
46 Id.
47 The EEZ in the Gulf of Mexico west of 87(30’.
48 43 U.S.C. � 1337 (a)(3)(C)(ii).
49 See Chris Oynes, Minerals Mgmt. Serv., A Review of Deepwater Operations (Sept. 2003), at http://www.gomr.mms.gov/homepg/whatsnew/speeches/Deepwater%20Operations.pdf (last visited Jan. 19, 2004).
50 Alliance to Protect Nantucket Sound v. U.S. Dep’t of the Army, 288 F. Supp. 2d 64 (D. Mass. 2003). Proponents have acknowledged the requirement to acquire permits from the U.S. Army Corps of Engineers under “Section 10” of the Rivers and Harbors Appropriation Act of 1899 allowing placement of structures into the waters of the United States that may obstruct navigation. Id.
51 Kathleen Clarke, U.S. Dep’t of the Interior, Interim Wind Energy Development Policy (Oct. 2002), http://www.blm.gov/nhp/efoia/wo/fy03/im2003-020.htm (last visited Jan. 19, 2004).
52 Susan Warren, Where the Wind Blows, Landowners Find Profits, Wall St. J., Oct. 30, 1996, at T1 (citing an Alternative Energy Institute study indicating that “landowners can negotiate an up-front development fee of $5,000 to $10,000, and either a yearly fee for each turbine placed on the property, a royalty based on production (usually 2% to 5% of revenue), or a combination of both”).
53 Contra Costa Water Dist. v. Vaquero Farms, Inc., 68 Cal. Rptr. 2d 272 (Cal. Ct. App. 1997).
54 See Federal Land Policy and Management Act of 1976, 43 U.S.C. � 1701 (2000).