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AGO 1963 No. 23 - May 16, 1963
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John J. O'Connell | 1957-1968 | Attorney General of Washington


OFFICES AND OFFICERS ‑- STATE ‑- OIL AND GAS CONSERVATION COMMITTEE ‑- DUTIES ‑- "CONTINENTAL SHELF."

1. The continental shelf lands in the area between the Pacific Ocean coast line of Washington state and the state's western boundary are subject to chapter 146, Laws of 1951, and the administration and enforcement of its provisions rest with the oil and gas conservation committee.

2. Federally-owned continental shelf land located west of the state's western boundary are not subject to chapter 146, Laws of 1951, and the oil and gas conservation committee has no duties or responsibilities regarding said lands.

                                                              - - - - - - - - - - - - -

                                                                   May 16, 1963

Honorable Earl Coe
Director, Department of Conservation
335 General Administration Building
Olympia, Washington

                                                                                                                Cite as:  AGO 63-64 No. 23

Dear Sir:

            By letter previously acknowledged, you requested an opinion of this office on questions which we paraphrase as follows:

            1. Are the lands of the continental shelf which extend westward from the coastline of the state of Washington subject to chapter 146, Laws of 1951 (chapter 78.52 RCW), commonly referred to as the "Oil and Gas Conservation Act?"

            2. If chapter 146, Laws of 1951, is applicable, does the oil and gas conservation committee administer its provisions?

            You are advised that the continental shelf lands in the area between the Pacific Ocean coast line of Washington state and the state's western boundary are subject to chapter 146, Laws of 1951, and the administration and enforcement of its provisions rest with the oil and gas conservation committee.  You are further advised that the federally-owned continental shelf lands located to the west of the state's western boundary are not subject to the provisions of the aforementioned chapter, and the oil and gas conservation committee has no duties or responsibilities related to said lands.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            1. A "continental shelf" is defined by geologists as a shallow marine terrace extending out under the ocean on the borders of the continents.  Shepard, Submarine Geology, 105 (1948); Shalowitz, Shore and Sea Boundaries, 182 (1962).  See, also, 2 U.S. Code Cong. & Ad. News, 1390, 2178 (1953).

            Prior to the cases ofUnited States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947), and United States v. Texas, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 1221 (1950), there was a substantial body of opinion to the effect that the ownership of the continental shelf seaward from the coast line of the state to a distance of three geographical miles was in the state.  45 Corp. Jur., Navigable Waters, 540 N. 78 (b) (1928);State v. Pollock, 136 Wash. 25, 239 Pac. 8 (1925);Lipscomb v. Gialourakis, 101 Fla. 1130, 133 So. 104 (1931); People v. Reilly, 14 N.Y.S.2d 589, 592 (1939).  See, also,Martin v. Waddell, 41 U.S. 367, 410 (1842) (dictum).  TheCalifornia and Texas cases announced a "new concept of federal power" with regard to the ownership of these submerged lands by denying state claims to title thereto, and at the same time holding that the federal government had the "paramount rights in and full dominion and power over" these lands including the resources of the soil under the water.  II Casner, American Law of Property, § 10.134 (1952).

            Intense public and congressional debate resulted from these decisions.  Bartley, The Tidelands Oil Controversy, 213 (1953); 2 U.S. Code Cong. & Ad. News, 1385, et. seq., (1953).  To counteract the effects of these decisions, Congress enacted in 1953 the "Submerged Lands Act."  67 Stat. 29 (1953); 43 U.S.C. § 1301-03, 1311-14.

            43 U.S.C. 1311 (a) reads as follows:

            "It is determined and declared to be in the public interest that (1) title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters, and (2)the right and power to manage, administer, lease, develop, and use the said lands and natural resources all in accordance with applicable State law be, and they are, subject to the provisions hereof,recognized, confirmed, established, and vested in and assigned to the respective States or the persons  [[Orig. Op. Page 3]] who were on June 5, 1950, entitled thereto under the law of the respective States in which the land is located, and the respective grantees, lessees, or successors in interest thereof; . . ."  (Emphasis supplied.)

            43 U.S.C. 1311 (b) (1) states, in part:

            "The United Statesreleases and relinquishes unto said States and persons aforesaid, except as otherwise reserved herein, all right, title, and interest of the United States, if any it has, in and to all said lands, improvements, and natural resources; . . ."  (Emphasis supplied.)

            43 U.S.C. 1312 reads in part:

            ". . . Any State admitted subsequent to the formation of the Union which has not already done so may extend its seaward boundaries to a line three geographical miles distant from its coast line, or to the international boundaries of the United States in the Great Lakes or any other body of water traversed by such boundaries.  Any claim heretofore or hereafter asserted either by constitutional provision, statute, or otherwise, indicating the intent of a State so to extend its boundaries is approved and confirmed, without prejudice to its claim, if any it has, that its boundaries extend beyond that line.  Nothing in this section is to be construed as questioning or in any manner prejudicing the existence of any State's seaward boundary beyond three geographical miles if it was so provided by its constitution or laws prior to or at the time such State became a member of the Union, or if it has been heretofore approved by Congress."  (Emphasis supplied.)

            The definition of the word "boundaries" as used in the preceding section is found in 43 U.S.C. § 1301 (b).  It reads:

            "The term 'boundaries' includes the seaward boundaries of a State or its boundaries in the Gulf of Mexico or any of the Great Lakes as they existed at the time such State became a member of the Union, or as heretofore approved  [[Orig. Op. Page 4]] by the Congress, or as extended or confirmed pursuant to section 1312 of this title but in no event shall the term 'boundaries' or the term 'lands beneath navigable waters'be interpreted as extending from the coast line more than three geographical miles into the Atlantic Ocean or the Pacific Ocean, or more than three marine leagues into the Gulf of Mexico; . . ."  (Emphasis supplied.)

            Article XXIV of the Washington Constitution as approved by presidential proclamation dated November 11, 1889, fixed the western boundary of the state as a line ". . . running in a southerly course and parallel with the coast line, keeping one marine league off shore . . ."1/

             The effect, then of the Submerged Lands Act was to grant to the state of Washington title and ownership to that portion of the lands of the continental shelf which extends from its coast line seaward three geographical miles, and the power "to manage, administer, lease, develop, and use" said lands in accordance with state law.2/

             The power of the federal government to make such a grant was upheld in Alabama v. Texas, 347 U.S. 272, 74 S.Ct. 481, 98 L.Ed. 689 (1954).  See, also,U. S. v. Florida, 363 U.S. 121, 80 S.Ct. 1026, 4 L.Ed.2d 1096 (1960).

            The provisions of chapter 146, Laws of 1951 (chapter 78.52 RCW) are state‑wide [[statewide]]in scope, and are applicable to submerged lands of the continental shelf owned by the state of Washington.  RCW 78.52.001;3/

             [[Orig. Op. Page 5]]

            RCW 78.52.040.4/

             See, also, RCW 78.52.010 (1) (a), RCW 78.52.450, 79.14.010, and 79.14.020.

            It is therefore our opinion that as to the lands located within the three‑mile belt extending westward from the coast line of this state, the provisions of the oil and gas conservation act of the state of Washington apply.

            Do these provisions also apply to the lands of the continental shelf located seaward from the three geographical mile boundary?

            With regard to the lands seaward from the state's historical boundary, the Submerged Lands Act stated only that:

            "Nothing in this chapter 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 area of lands beneath navigable waters, as defined in section 1301 of this title, 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.)

            Concurrent with the passage of the Submerged Lands Act, however, Congress enacted the "Outer Continental Shelf Lands Act."  67 Stat. 462 (1953), 43 U.S.C., § 1331-43.  This act relates to jurisdiction and control of the "outer" continental shelf, or landsseaward from the state's historic boundary to the edge of the continental shelf.  See, 43 U.S.C. § 1331 (a).  More particularly the act provided for the development of the natural resources, and the administration and leasing of these lands.

             [[Orig. Op. Page 6]]

            43 U.S.C. § 1332 (a) reads:

            "It is declared to be the policy of the United States that the subsoil and seabed of the outer Continental Shelf appertain to the United States and aresubject to its jurisdiction, control, and power of disposition as provided in this subchapter."  (Emphasis supplied.)

            43 U.S.C. § 1333 (a) provides:

            "(1) The Constitution and laws and civil and political jurisdiction of the United States are extended to the subsoil and seabed of the outer Continental Shelf and to all artificial islands and fixed structures which may be erected thereon for the purpose of exploring for, developing, removing, and transporting resources therefrom, to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State:  Provided, however, That mineral leases on the outer Continental Shelf shall be maintained or issued only under the provisions of this subchapter."

            These two subsections give a definite indication that federal law shall apply to the lands of the outer continental shelf.

            Although 43 U.S.C. § 1333 (a) (2) does set forth that state lawsare adopted as federal law to the extent that state laws ". . . are applicable and not inconsistent with this subchapter or with other federal laws and regulations of the secretary now in effect or hereafter adopted . . ." it is clear from the wording of 43 U.S.C. § 1334 (a) (1) that the power to determine waste and conservation measures applicable to the development of the natural resources of the outer continental shelf lands has been delegated to the Secretary of the Interior of the United States.

            43 U.S.C. § 1334 (a) (1) reads as follows:

            "The Secretary shall administer the provisions of this subchapter relating to the leasing of the outer Continental Shelf, and shall prescribe such rules and regulations as may be necessary to carry out such provisions.  The Secretary may  [[Orig. Op. Page 7]] at any time prescribe and amend such rules and regulations as he determines to be necessary and proper in order to provide for the prevention of waste and conservation of the natural resources of the outer Continental Shelf, and the protection of correlative rights therein, and, notwithstanding any other provisions herein, such rules and regulations shall apply to all operations conducted under a lease issued or maintained under the provisions of this subchapter.  In the enforcement of conservation laws, rules, and regulations the Secretary is authorized to cooperate with the conservation agencies of the adjacent States.  Without limiting the generality of the foregoing provisions of this section, the rules and regulations prescribed by the Secretary thereunder may provide for the assignment or relinquishment of leases, for the sale of royalty oil and gas accruing or reserved to the United States at not less than market value, and, in the interest of conservation, for unitization, pooling, drilling agreements, suspension of operations or production, reduction of rentals or royalties, compensatory royalty agreements, subsurface storage of oil or gas in any of said submerged lands, and drilling or other easements necessary for operations or production."  (Emphasis supplied.)

            We therefore conclude that the lands of the "outer" continental shelf are not subject to chapter 146 of the Laws of 1951.

            2. Your second inquiry relates to whether the oil and gas conservation committee of this state has any responsibilities with regard to the enforcement of chapter 146, Laws of 1951 (chapter 78.52 RCW) on lands of the continental shelf.

            It is clear from 43 U.S.C. § 1311 (a), quoted supra, that not only is the title and ownership of the submerged lands in question located within the historic boundaries of the state, but the ". . . power to manage, administer, lease, develop and use . . ." said lands shall be carried out in accordance with state law by state officials.

            RCW 78.52.0405/ provides that the oil and gas conservation committee (as defined in RCW 78.52.020), shall administer and enforce the provisions of the oil and gas conservation act.

             [[Orig. Op. Page 8]]

            Our opinion is, therefore, that the oil and gas conservation committee is empowered to enforce the provisions of the oil and gas conservation act on submerged continental shelf lands located in that area between the coast line of the Pacific Ocean and the boundary of the state of Washington located three geographic miles to the west.

            With regard to submerged continental shelf lands owned by the United States west of the state's boundaries, such lands are subject solely to the conservation laws of the federal government as administered by the Secretary of the Interior.  43 U.S.C. §§ 1333, 1334.  The oil and gas conservation committee, in performance of its duties under chapter 78.52 RCW, has no responsibilities relating to said lands.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

CHARLES B. ROE, JR.
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/A marine league is the equivalent of three geographical miles.

2/Coastline is defined in 43 U.S.C. 1301 (c) as ". . . the line of ordinary low water . . ."  See, Shalowitz, Shore and Sea Boundaries, 122 (1953).

3/RCW 78.52.001, states in part:

            "It is hereby declared to be in the public interest to foster, encourage, and promote the development, production, and utilization of oil and gasin the state in such manner as will prevent waste; . . ."  (Emphasis supplied.)

4/RCW 78.52.040 reads:

            "It shall be the duty of the committee to administer and enforce the provisions of this chapter, and all rules, regulations and orders promulgated hereunder, and the committee is hereby vested with jurisdiction, power and authority,over all persons and property, public and private, necessary to enforce effectively such duty."  (Emphasis supplied.)

5/See, Note 4, supra.

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