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Mr. PAUTZKE. Undoubtedly, Mr. Keith, you are familiar with the agreement that was drawn up last year between the agencies of the Fish and Wildlife Service, which are the Bureau of Sport Fisheries and Wildlife, and the Bureau of Commercial Fisheries, and the Bureau of Land Management, and the Geological Survey, in which all of these agencies, are to review applications for exploratory or seismic work. Being familiar with seismic work off the State of Washington I know that the States have observers onboard the boats at the time the work is allowed.
Mr. KEITH. What I am interested in is whether you, as one whose primary responsibility is fish within the Department, have advised the Secretary that there are certain areas where oil interests should not contemplate the use of explosives because of the adverse effect that they would have on the breeding ground?
Mr. PAUTZKE. We would do this when the application came in to do seismic work. We have not set aside any areas to my knowledge at this time.
Mr. KEITH. Once oil is found, does the Bureau of Commercial Fisheries have any veto over the actual granting of a lease for drilling?
Mr. PAUTZKE. I am sure you realize that the Secretary is the one that grants the lease, but we have an input into his decisions on this.
Mr. KEITH. Has there been any general list of instructions published perhaps in the Federal Register with reference to this whole area that we are discussing?
Mr. PAUTZKE. I don't know of any, Mr. Keith.
Mr. Keith. I am looking for an established policy that was widely promulgated.
Mr. PAUTZKE. We have this memorandum of understanding, Mr. Congressman.
Mr. KEITH. You say in your testimony that you have sufficient authority to do these things, and I am just interested to know whether or not that authority is being exercised in a way that really protects the fishing interests which we consider in this case to be in the public interest.
Mr. PAUTZKE. I would defer to Mr. Standley.
Mr. STANDLEY. An example of how this work was carried out in our last few sales in the Gulf of Mexico, sir, is that we scheduled our sales so that they would not interfere with the shrimp spawning periods. More particularly we adjusted the time of sale so that there would not be any seismic work done of any type in these areas during spawning periods. We are working all of our sales in the Gulf of Mexico with this in mind.
Mr. KEITH. What I was trying to find out from Mr. Pautzke is whether or not he has requested of the Bureau of Mines, or whoever it is that is responsible for this area, similar protective measures and promulgation thereof for the public observance?
Mr. PAUTZKE. Conditions, Mr. Congressman, are put on every one of these leases. The Secretary has this authority to place conditions upon the exploratory phases or the leases themselves.
Mr. KEITH. You talk about not favoring this study, and yet you favored H.R. 25. H.R. 25 is concerned primarily with estuarine areas and seaward areas therefrom. I noticed the emphasis as you read this.
I will emphasize the estuarine part of it, and you emphasize the seaward part. What is
your definition of an estuary or an estuarine area? Mr. PAUTZKE. My definition of an estuarine area is an area that has access to the open sea and is the mixing area for drainage from lands that surround it; but it does have free access to the sea. It is a transitional zone and it varies in salinity.
Mr. KEITH. It's generally speaking where there is a confluence of fresh and salt water?
Mr. PAUTZKE. Yes; but take, for instance, off the mouth of the Mississippi and the mouth of the Columbia River. Fresh water extends out as much as 150 miles in the ocean, so that if you are saying where the fresh and salt water mix, it could be 150 miles out.
Mr. KEITH. So that in that area, which is probably not a breeding area, generally speaking, you have, by reason of the definition
Mr. PAUTZKE. You mean off the mouth of the Columbia River?
Mr. PAUTZKE. Yes: this was the area where we had trouble with the Russians taking hake. We had to have several meetings on the subject. That is a breeding area.
Mr. KEITH. I am concerned about the logic. You say that you needed H.R. 25 very badly, but it is much more specifically covered, it seems to me, by the assignment that we have given to the Marine Resources Council that we established a couple of years ago to study, and it seems to me that the same logic could obtain with reference to the bill before
Mr. PAUTZKE. I could explain that, but I would like to have Mr. Finnegan tell you how H.R. 25 and H.R. 11584 have a relationship, if I may.
Mr. FINNEGAN. Mr. Keith, H.R. 25, as you may recall, is designed to apply to estuaries, and the bill includes bays, lagoons, seaward areas, and coastal waters. Your bill H.R. 11584 applies to tidelands, Outer Continental Shelf, seaward areas, and waters of the Great Lakes.
I might say that H.R. 25 also applied to the Great Lakes. You then define the term “tidelands” to include bays, estuaries, land, and waters within the 3-mile territorial limit of the United States. All of those waters are covered by the estuary bill H.R. 25. You also include the Great Lakes, which is also covered by H.R. 25.
Your definition of "seaward areas” covers land and waters contiguous to and extending from the 200-meter-depth contour. That, of course, is different from what we had thought of the term "seaward area" as it appears in H.R. 25, so that really the only distinguishing feature between this bill and H.R. 25 is the Outer Continental Shelf and your definition of seaward areas.
I might point out that the Department's view here is not that H.R. 25 could do all of this. It is H.R. 25 coupled with the other authorities that the Department now has to do a general study of this type. We could do this type of study assuming the priorities, funds, and so forth were available to us.
Mr. KEITH. We, certainly on this committee, looked very carefully and for a long while at the duplication that is currently existing. We asked the Department to furnish us with a list of the other studies in associated areas that had been and were being conducted and, in spite
of the overlap and the tremendous amount of money that has been spent, we felt that H.R. 25 was necessary. The reason that our legislation was drafted as it is was to fill any gaps. We are not going to be sticklers any more than you were on H.R. 25 which you wanted. We would be pleased to amend our definition so that it is coordinated with the estuaries program.
This brings up the point, Mr. Pautzke, that you and I talked about on the phone late last week, and I was so pleasantly surprised at the conclusion of that phone call to find that you were with us. What happened in the meantime?
Mr. PAUTZKE. Will you recall your telephone call? I recall it very vividly. You called me last week and you said that your legislation was coming up. You said, “Are you for the protection of fish and the natural resources ?", and I said, "All the way." My words on that were like speaking for motherhood. They were for the protection of fish and other natural resources. I don't deviate from that a bit.
Mr. KEITH. I am glad that you feel that my legislation can be included in that definition, but my question was about the legislation which is before us today, and of course I agree that it is for fish and for motherhood. But I was under the impression and you certainly didn't disabuse me—that were were on the same team fighting for the same kind of legislation, and I had specifically in mind today's hearing.
Mr. LENNON. Would the gentleman yield?
Mr. KEITH. Well, maybe one of them is explosive and the other one is shock treatment. I don't know. But at any rate, Mr. Chairman, I don't think I will take more time because you have other witnesses and maybe we can get back on the same wave length at a later date.
Mr. LENNON. The gentleman from New York.
Mr. Dow. Mr. Pautzke, I am always puzzled by the degree of jurisdiction that prevails in the different, you might say, offshore areas. Now, out to the 3-mile territorial limit, does the United States maintain or assume property rights there? Do we hold that any property out to the 3-mile territorial waters belongs to the United States and may be sold or leased to private individuals or private operators? Is that our present standing?
Mr. PAUTZKE. The territorial sea of 3 miles is under the jurisdiction of the States. This covers the lands and the natural resources.
Mr. Dow. Now, jurisdiction would indicate perhaps some kind of extension over the right to keep the peace and so on. Does that also mean actual ownership of the area in fee simple such that it can be sold and dealt in as a commodity ?
Mr. PAUTZKE. Mr. Dow, you are asking about a legal matter. I am going to ask our legislative counsel to answer that, if I may.
Mr. FINNEGAN. Mr. Dow, the Congress in 1953 granted to the States the submerged lands within the territorial sea, giving them right, title, and interest to the lands themselves and the natural resources in the waters within the territorial sea, reserving under the commerce clause the right and power of navigation and jurisdiction over the waters themselves.
But the States do have jurisdiction over the submerged lands, the right to lease the resources, the mineral resources, and the right to control the fishery resources within the territorial sea.
Mr. Dow. Then how could the United States establish a marine sanctuary?
Mr. LENNON. Will the gentleman yield at that point?
Mr. LENNON. I have some recollection of what you are speaking of. Are you sure this is true with respect to all States that are contiguous to the sea or just those States who reserved that right when they came into the Republic?
Mr. FINNEGAN. To the States contiguous to the territorial sea. I would have to go back of that completely.
Mr. LENNON. The reason I raised that question is that, in the testimony 2 weeks ago, after this incident happened in September of 1966, in the Grand Banks area—the explosion—the legislatures of some of those States attempted to extend their rights out to the 3-mile limit.
My recollection is that it was just certain specific States that claimed jurisdiction to this distance. I could be entirely wrong about this. In other words, you say the same law applies to the State of North Carolina, South Carolina, Virginia, and Maryland as it does to Louisiana and Texas?
Mr. FINNEGAN. For Louisiana and Texas I think it says 9 leagues.
Mr. STANDLEY. Off the west coast of Florida, that part that is in the gulf, and Texas, got 3 marine leagues, which is about 10 miles. All of the other States got 3 miles.
Mr. LENNON. In other words, if oil were discovered within the 3-mile territorial limit off the State of Virginia, then that would be a contractual relationship between the explorer or oil company with that respective State, and the Department of the Interior would not have any right to get into the lease
Mr. FINNEGAN. That is right.
Mr. LENNON. These leases that you are discussing are beyond the 3-mile territorial limit.
Mr. FINNEGAN. That is correct. I might add one caveat to that, of course, sir.
Mr. LENNON. The gentleman from New York is raising the question of the legal authority of the Department of the Interior to make a lease to a private enterprise beyond our territorial waters. On what authority is that done?
Mr. FINNEGAN. That is on the Outer Continental Shelf Lands Act which was passed at the same time in 1953, the companion statute.
Mr. LENNON. That is what I wanted to know. What we have done is to say to the world that we extend our rights to the territorial waters, we extend our rights to 12 miles for our fisheries but we claim the authority to contract for the exploration for oil and minerals, out how far?
Mr. FINNEGAN. Out as far as the Continental Shelf. It is not real clear as to how far that extends. There is a gray area there.
Mr. PAUTZKE. Our technology is improving. The ability to drill is progressively
moving into deep water. Mr. KEITH. Will the gentleman yield on that point just to protect Massachusetts' interests?
Mr. Dow. I yield.
Mr. KEITH. Even as Texas and Florida had certain rights inherent in the terms under which they joined the States, so, too, Massachusetts feels that its grant from the King of England gave to it as a Commonwealth certain rights beyond the 3-mile limit and they do not feel complete title has been turned over to the Federal Government.
Mr. LENNON. I would say to the gentleman that on that question you would have to go to the courts. We can't resolve that here. Go ahead.
Mr. Dow. So the United States does then exert some proprietary rights in waters out to the limit of the Continental Shelf. Is that a situation where we would sell those rights or sell pieces of territory, that is to say, the surface of the earth under the waters, or do we merely rent these rights, or just what kind of disposal do we make of those areas?
Mr. FINNEGAN. At the present moment the United States claims exclusive jurisdiction over the lands of the Outer Continental Shelf, and the Congress has granted authority to the Secretary of the Interior to lease the mineral interests in those lands.
Mr. Dow. I see. So that we take exclusive jurisdiction and our means of disposal is normally leasing.
Mr. FINNEGAN. That is the authority the Secretary has now.
Mr. LENNON. I wonder if the Department of the Interior could furnish the counsel of this committee, not mentioning the consideration because we have nothing to do with that, an example of the type of leases that are used in the subject matter that we are discussing now, the mineral rights and oil exploration rights both on the gulf coast and any other place.
You need not mention, I would suggest, the grantee or the lessee or the figures involved, but only so that we will know the conditions laid down.
Mr. STANDLEY. Sir, I have a copy of our lease form here. It is published in a book that we put out. The leasing regulations and the OCS Mineral Leasing Act in total is in here.
Mr. LENNON. I ask unanimous consent that that and any other pertinent information relating to the lease be included in the record at this point.
(The information to be furnished follows:)