The Missouri-Nebraska Boundary (H.J. Res. 54)

When Missouri and Nebraska were admitted into the Union in 1820 and 1867, respectively, the boundary between the states was set at the middle of the Missouri River.⁽⁷⁾ However, less than six months after Nebraska's admission, on July 5, 1867, the Missouri River flooded and carved out a new path to the west.⁽⁸⁾ In the process, a 5,000 acre patch of land - known as McKissick's Island - which was west of the River, suddenly became east of the River.⁽⁹⁾ The historical record demonstrates that the River was no stranger to such ambulation. While traveling through the same exact area in 1804, Lewis and Clark noted that a "channel from the bed of the Missouri once ran into [a small nearby river], and formed an island ... but the channel is now filled up, and the island is added to the northern shore."⁽¹⁰⁾

Finally, in 1904, the Supreme Court held that McKissick's Island was part of Nebraska.⁽¹¹⁾ In reaching its decision, the Court relied on the common law distinction⁽¹²⁾ between avulsion, "a sudden cutting off of land by flood, currents, or change in course of a body of water,"⁽¹³⁾ and accretion, "the process of growth or enlargement by a gradual buildup: as [in] the increase of land by the action of natural forces."⁽¹⁴⁾ In a case of avulsion, the boundary does not change, whereas in a case of accretion, the boundary moves with the river.⁽¹⁵⁾

Unfortunately, the Supreme Court decision did not end the dispute. In 1934, the Army Corps of Engineers began construction of "dikes, revetments, ripraps, and dredging" which resulted in the River's further movement along the border.⁽¹⁶⁾ Despite a 1982 decision by a United States District Court in Nebraska that the boundary remained at its pre-1934 location, the states were unable to agree on the precise location of that 1934 centerline.⁽¹⁷⁾ Consequently, farmers whose land is in the disputed area have faced taxation and threats of foreclosure from both states.⁽¹⁸⁾

After many years of negotiations and the appointment of an interstate commission, the boundary dispute has been resolved and the two states have passed legislation embodying the commission's recommendations and incorporating the Supreme Court's decision.⁽¹⁹⁾ The final agreement shifts more than 10,000 acres of land on both sides of a 50 mile section of the River.⁽²⁰⁾ That agreement, which also provides for a mechanism to govern future boundary disputes, is contained in the bill under consideration, H.J. Res. 54. Congress' consent will make the agreement binding on both states.

The Georgia-South Carolina Boundary (H.J. Res. 62)

On April 28, 1787, Georgia and South Carolina - through duly appointed commissioners - entered into the Beaufort Convention pursuant to the then valid Articles of Confederation of 1778.⁽²¹⁾ The Convention set the boundary between the states at the centerline of the Savannah River, except where there are islands in the River, in which case the boundary was set to the centerline between the islands, which were part of Georgia, and the South Carolina riverbank.⁽²²⁾

Over time, however, the states disagreed on whether the centerline should be measured at the low-water mark or at the ordinary level.⁽²³⁾ The Supreme Court, in 1922, decided that the proper measurement was at the ordinary water level.⁽²⁴⁾ Nonetheless, the boundary line was the subject of protracted debate as new islands emerged in the River, the Army Corps of Engineers dredged certain parts of the River, South Carolina claimed adverse possession over a set of islands in the River, and the states disputed the boundary at the mouth of the River on the Atlantic Ocean.⁽²⁵⁾ The issue gained prominence as the disputed land became critical to expanding the Port of Savannah, and the potential of offshore oil reserves arose.⁽²⁶⁾ At one point, South Carolina refused to "extradite to Georgia a . . . South Carolina shrimp-boat captain who had been accused of shrimping illegally in the waters claimed by Georgia . . . [and] who insisted he had never left South Carolina waters."⁽²⁷⁾

Finally, in 1990, the Supreme Court ruled, inter alia, that Georgia lost sovereignty over certain islands to South Carolina by the doctrine of "prescription and acquiescence," the emergence of new islands in the River did not move the boundary, and the Army Corps' operations were instances of avulsion that did not move the boundary.⁽²⁸⁾ The Court directed the states to draw the boundary in accordance with its opinion and to submit the boundary to the Court for final approval.⁽²⁹⁾

The states enlisted the help of the National Oceanic and Atmospheric Administration (NOAA) to update and make usable the 1855 map used by the Supreme Court in its decision.⁽³⁰⁾ When NOAA completed its work, the states realized that the course of the River had changed so much since 1855 that they would have to negotiate a different line.⁽³¹⁾ Therefore, the two states worked together, pursuant to the pending Supreme Court's direction, to arrive at a mutually agreeable solution.⁽³²⁾ That solution covers about 3,000 acres of land.⁽³³⁾

In translating that new, mutually agreed-upon boundary into law, however, Georgia used a legal description which was less technically precise and accurate than that utilized by South Carolina.⁽³⁴⁾ Therefore, the versions passed by the states and referenced in H.J. Res. 62 are not currently identical. Nonetheless, Georgia's law did provide that its textual description could be superceded by a map to be prepared by NOAA and commissioned by the two states.⁽³⁵⁾ If such a map is produced and it is identical to South Carolina's textual description, then the two states will have an identical agreement and Congress, under H.J. Res. 62, will have consented to the boundary. If, however, NOAA does not produce such a map or the map is not sufficiently clear or identical to bind the states, H.J. Res. 62 gives the states consent in advance to adopt each other's language or come up with new language to settle their long-standing boundary dispute within five years of Congressional enactment.⁽³⁶⁾ As interstate compacts are generally interpreted like contracts, they are not binding unless there is both an offer and acceptance, and the use of two different texts may - depending on the differences - be construed instead as an offer and a counteroffer.⁽³⁷⁾ Therefore, under H.J. Res. 62, the compact will not legally bind the states until NOAA produces the requisite map or the states adopt identical language.

SUBCOMMITTEE CONSIDERATION OF H.J. RES. 54 & H.J. RES. 62

The Subcommittee on Commercial and Administrative Law held hearings on H.J. Res. 54 and H.J. Res. 62 on July 29, 1999. The following witnesses testified on H.J. Res. 54: the Honorable Doug Bereuter (R-NE), the Honorable Pat Danner (D-MO), and David Duncan, a member of the Missouri Boundary Commission. All three witnesses were supportive of the legislation. In addition, the following witnesses testified on H.J. Res. 62: the Honorable Jack Kingston (R-GA) and Charles W. Challstrom, Acting Director of the National Geodetic Survey at the National Oceanic and Atmospheric Administration (NOAA). Mr. Challstrom explained NOAA's involvement and expectation that the states will work out any remaining technical issues within the next 5 years. Mr. Kingston was also supportive of the legislation.

1. Eric Johnson, Border Disputes Linger in Many States: Families Have Lost Land Under Taxation Conflicts, The Dallas Morning News, April 17, 1993, at 41A (quoting Stephen Pousardien, a map expert with the United States Geological Survey).

2. U.S. Const. art. III, § 2, cl. 1.

3. U.S. Const. art. I, § 10, cl. 3.

4. Felix Frankfurter and James M. Landis, The Compact Clause of the Constitution - A Study in Interstate Adjustments, 34 Yale L. J. 685, 696 (1925). See also William Kevin Voit, Interstate Compacts & Agencies 19 (1998) (listing 25 interstate boundary compacts).

5. Virginia v. Tennessee, 148 U.S. 503, 518, 520 (1893).

6. New Mexico v. Colorado, 267 U.S. 30, 41 (1925); Louisiana v. Mississippi, 202 U.S. 1, 41 (1906).

7. Act of March 6, 1820, ch. 22, 3 Stat. 545; Act of February 9, 1867, ch. 59, 5 Stat. 34.

8. Missouri v. Nebraska, 196 U.S. 23, 33-35 (1904).

9. Id.

10. Meriwether Lewis, The Journals of the Expedition Under the Command of Capts. Lewis and Clark, (Nicholas Biddle, ed., The Easton Press 1989).

11. Missouri, 196 U.S. at 37-38.

12. Id. at 35-36.

13. Webster's Ninth New Collegiate Dictionary 120 (9^th ed. 1990).

14. Id. at 50.

15. Missouri, 196 U.S. at 36.

16. Letter from Hon. Doug Bereuter and Hon. Pat Danner to Hon. George Gekas 3 (June 25, 1999) (on file with the Subcommittee on Commercial and Administrative Law) [hereinafter Letter].

17. Id.

18. Robin Tysver, Truce Near in 131-Year Border War, Oklahoma World-Herald, April 1, 1998, at 1.

19. Letter, supra note 15, id.

20. Tysver, supra note 18, at 1.

21. Georgia v. South Carolina, 257 U.S. 516, 518-19 (1922).

22. Id. at 517-18.

23. Id.

24. Id. at 521.

25. See generally Georgia v. South Carolina, 497 U.S. 376 (1990).

26. Regional News, United Press International Newswire, March 23, 1986, available in Lexis, Nexis library, UPI File.

27. War Between the States, The Economist, August 27, 1977, at 42.

28. Georgia v. South Carolina, 497 U.S. 376 (1990).

29. Id. at 409-10.

30. 145 Cong. Rec. S8271 (daily ed. July 12, 1999) (statement of Sen. Coverdell) (on file with the Subcommittee on Commercial and Administrative Law).

31. Id.

32. Id.

33. Regional News, supra note 26.

34. Act of May 29, 1996, 1996 S.C. Acts 375; Act of April 5, 1994, 1994 Ga. Laws 1044. For example, the Georgia law uses a different system of coordinates to describe the boundary line. In addition, it does not specify whether degree measurements should be "true" or "magnetic". Georgia, in a letter to Speaker Hastert and Vice President Gore, has acknowledged that South Carolina's description is more appropriate. Letter from J. Ray Crawford, Special Designee of the Governor and Executive Director, State Properties Commission, to Hon. Dennis Hastert, Speaker of the House of Representatives, and Hon. Albert Gore, Jr., President of the Senate 1 (undated) (on file with the Subcommittee on Commercial and Administrative Law).

35. Id. However, NOAA does not, as a matter of policy, place interstate boundary lines on its maps unless directed to do so by the Congress or the courts. Furthermore, NOAA does not recommend the use of a graphical depiction as a legal definition for a state water, due to accuracy issues. Testimony of Charles Challstrom before the Subcommittee on Commercial and Administrative Law (July 29, 1999) <http://www.house.gov/judiciary/chal0729.htm>.

36. Congress has the power to consent to interstate compacts in advance of their actual existence. Cuyler v. Adams, 449 U.S. 433, 441 & n. 9 (1981). See also Frederick L. Zimmerman & Mitchell Wendell, The Law and Use of Interstate Compacts 25 (1976).

37. Frederick L. Zimmerman & Mitchell Wendell, The Law and Use of Interstate Compacts at 25 (1976).