Wednesday, January 2, 2013
Robin Craig (Utah) has posted Treating Offshore Submerged Lands as Public Lands: An Historical Perspective (Public Land & Resources Law Review) on SSRN. Here's the abstract:
President Harry Truman proclaimed federal control over the United
States’s continental shelf in 1945, he did so primarily to secure the
energy resources — oil and gas — embedded in those submerged lands.
Nevertheless, the mineral wealth of the continental shelf spurred two
critical legal battles over their control and disposition: First,
whether the federal government had any interest in the first three miles
of continental shelf; and second, if so, whether the federal government
had authority to regulate the continental shelf under traditional
federal public land laws, such as the Minerals Leasing Act. Congress’s
reactions to federal courts’ resolutions of these questions, embodied in
1953 in the Submerged Lands Act and the Outer Continental Shelf Lands
Act, continue to provide the foundations for state and federal
management of the nation’s continental shelf and its energy resources.
Nevertheless, the Outer Continental Shelf’s status as federal public lands remains ambiguous. This Article takes an historical approach to assessing that issue, reviewing the traditional definition of federal “public lands” and the historical context of the public lands issues that arose for the Outer Continental Shelf. It concludes that the Outer Continental Shelf, from a natural resources perspective, qualifies as the newest of the federal public lands, but it also acknowledges that — unlike for many other public lands — federal statutes repeatedly and consistently exclude the states from gaining ownership of those submerged lands.