OAG 86-7.

• Case Date: November 13, 1986
• Court: Oregon

Oregon Attorney General Opinions 1986. OAG 86-7. 137OPINION NO. 86-7[45 Or. Op. Atty. Gen. 137]No. 8182November 13, 1986Mr. Monty Montgomery Deputy Director Department of Fish and WildlifeFIRST QUESTION PRESENTEDWhere is the exact location of the so-called "three-mile boundary" off the coast of the State of Oregon?ANSWER GIVEN We are unable to advise as to the exact location of the state's seaward boundary. We can only explain what standards are to be applied to geographical facts to ascertain the boundary location. The location of the coastal boundary of the state should be determined in accordance with the Submerged Lands Act of 1953 as interpreted by the United States Supreme Court pursuant to the terms of the Convention on the Territorial Sea and the Contiguous Zone. Insofar as state officials conclude that the official United States government charts comport with these principles, state officials should use the boundary shown on these charts.SECOND QUESTION PRESENTED What authority does the State of Oregon have to regulate fishing by its residents beyond the state boundary(a) where federal regulations exist?(b) where there is an absence of federal regulations?ANSWER GIVENUnder the provisions of the Magnuson Act, the key question is whether the vessel being regulated is "registered" under Oregon law. Generally, the state has the authority to regulate "registered vessels" to the extent such regulations are not in direct conflict with federal regulations and do not violate applicable constitutional provisions.THIRD QUESTION PRESENTEDWhat authority does the State of Oregon have to regulate fishing by nonresidents beyond the state boundary(a) where federal regulations exist?(b) where there is an absence of federal regulations?ANSWER GIVEN Residency does not affect the state's authority to regulate. The state may regulate fishing by nonresidents beyond the state boundary 138if the vessel is "registered" under Oregon law, and if the regulation does not conflict with federal law or violate applicable constitutional provisions.FOURTH QUESTION PRESENTED Would the answer to the third question differ if the nonresident had any of the following connections to the state:(a) the nonresident launched his boat from the state;(b) the nonresident was a passenger on a vessel operated by a resident; or(c) the nonresident held a license from the State of Oregon?ANSWER GIVEN No. "Registration" of the vessel is the pertinent test. FIFTH QUESTION PRESENTEDWould the answer to questions two and three differ for sport fishermen versus commercial fishermen? ANSWER GIVENNo. The "registration" requirement applies to both sport and commercial fishing.SIXTH QUESTION PRESENTEDORS 506.755 asserts the authority of the state to regulate marine commercial fishing for the purpose of conserving the state's fishery resources for a distance of 50 miles beyond the coastline. Does this statute have any bearing on the state's jurisdiction?ANSWER GIVEN Yes. The statute is a valid exercise of the state's police power to the extent it does not conflict with federal law.SEVENTH QUESTION PRESENTEDDoes the Columbia River Compact apply to all fishing in the Columbia River, regardless of whether it is sport or commercial? ANSWER GIVENNo. The Compact regulates commercial fishing only; it does not apply to sport fishing. DISCUSSION The management of offshore fisheries has become a complex and controversial subject in the last decade. Numerous governmental entities have some139regulatory authority relating to offshore fisheries. As a result, the managers of state fisheries confront complex political and legal questions as well as difficult biological issues. This opinion attempts to clarify Oregon's legal authority to regulate offshore fisheries.I. Location of Oregon's BoundaryThe first question presented requires us to consider how to determine the exact location of Oregon's boundary in the Pacific Ocean. For game enforcement purposes, the state presently uses a standard based on the Oregon Admission Act to determine the seaward boundary. In our opinion, the Oregon Admission Act is the incorrect standard by which to ascertain the boundary. As discussed and with the qualification noted below, we believe the state should use official United States government charts to ascertain the boundary. Section one of the Oregon Admission Act, 11 Stat 383 (1859), defines the state's western boundary as follows:

". . . Beginning one marine league at sea, due west from the point where the forty-second parallel of north latitude intersects the same; thence northerly, at the same distance from the line of the coast, lying west and opposite the State, including all islands within the jurisdiction of the United States, to a point due west and opposite the middle of the north ship channel of the Columbia River . . . ." (Emphasis added.)

A marine league equals three geographical miles of 6,075 feet each. BLACK'S LAW DICTIONARY 1120 (4th ed 1951). Thus, the United States Congress originally established Oregon's boundary on the Pacific Ocean as three miles from shore. Consistent with the language of the Admission Act, state enforcement authorities historically deemed and presently consider the boundary to be three miles from land, without regard to small reefs or pinnacles. Federal authorities, on the other hand, based on the Submerged Lands Act of 1953 (43 USC §§ 1301 et seq. (1982)) currently set the state's boundary at points further seaward. As a result, certain areas of the ocean fall between the two authorities' different locations of the three-mile boundary. These areas are not patrolled by state or federal authorities. One such area is off the mouth of the Rogue River. The Submerged Lands Act of 1953 confirmed that the seaward boundary of a coastal state consists of "a line three geographical miles distant from its coast line." See, e.g., 43 USC § 1312 (1982). The term "coast line" is defined in 43 USC section 1301(c) (1982) as "the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters." States whose boundaries had not previously extended three miles seaward were permitted to extend their boundaries to the three-mile point.(fn1) The Submerged Lands Act, however, did not completely140resolve the problem we now face because a state's coastline is not a straight line. The irregularity of the coastline and the existence of such geographical features as reefs, islands and bays makes the determination of the exact location of a state's boundary a complex task. The burden of establishing criteria for that determination has fallen on the United States Supreme Court. The Supreme Court has been asked in a number of cases to determine the exact boundary of a state for purposes of the Submerged Lands Act. In United States v. California, 381 US 139 (1965), the first in a series of decisions, the Court concluded that Congress had left the ultimate responsibility for defining inland waters and precise state boundaries to the Court. Id. at 164. The Supreme Court then adopted the definitions of the Convention on the Territorial Sea and the Contiguous Zone, 15 UST 1607 (hereafter the Convention),(fn2) as standards for construing the Submerged Lands Act. Id. at 165. "This establishes a single coastline for both the administration of the Submerged Lands Act and the conduct of our future international relations . . . ." Id. In United States v. Louisiana, 389 US 155 (1967), the Court held that the claim of Texas for a boundary extension under the Submerged Lands Act must be measured from the time Texas was admitted as a state, and not from artificial jetties constructed after admission. On the other hand, in United States v. Louisiana (Texas Boundary Case), 394 US 1 (1969), the Court held that Texas' boundary on the Gulf of Mexico is the modern, ambulatory boundary which has resulted from natural processes such as accretion and erosion. Finally, in United States v. Louisiana (Louisiana Boundary Case), 394 US 11 (1969), the Court reaffirmed that a state's coastline must be determined, after evidentiary hearings, according to the definitions set forth in the Convention. In summary, the lessons of these decisions is that in the event of a dispute between Oregon and the federal government, the Supreme Court would apply the standards established by the Convention to determine the precise location of Oregon's boundary in the Pacific Ocean. Before resolving such a dispute, the Court likely would require evidentiary hearings, and specific findings of fact regarding particular points along the coast. The state should apply the general principles established by the Supreme Court in attempting to determine the location of Oregon's marine boundary. A number of provisions of the Convention are pertinent to the establishment of Oregon's boundary.(fn3) The following discussion highlights the most141pertinent standards and demonstrates that the present state method for determining the three-mile boundary is at odds with the rules of the Convention because it does not take into account offshore land masses. Section II of the Convention defines the limits of the territorial sea. Articles 3 and 4 of section II provide: "Article 3

"Except where otherwise provided in these articles, the normal baseline for measuring the breadth of the territorial sea is the low water line along the coast as marked on

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