[House Report 106-303]
[From the U.S. Government Publishing Office]



106th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    106-303

======================================================================



 
  GRANTING THE CONSENT OF CONGRESS TO THE MISSOURI-NEBRASKA BOUNDARY 
                                COMPACT

                                _______


 September 8, 1999.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

Mr. Gekas, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                      [To accompany H.J. Res. 54]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
joint resolution (H.J. Res. 54) granting the consent of 
Congress to the Missouri-Nebraska Boundary Compact, having 
considered the same, reports favorably thereon without 
amendment and recommends that the joint resolution do pass.

                           TABLE OF CONTENTS

                                                                  

                                                                 Page
Purpose and Summary........................................           1
Background and Need for the Legislation....................           2
Hearings...................................................           3
Committee Consideration....................................           3
Committee Oversight Findings...............................           3
Committee on Government Reform Findings....................           3
Congressional Budget Office Cost Estimate..................           4
Constitutional Authority Statement.........................           4
Section-by-Section Analysis................................           4

                          Purpose and Summary

    House Joint Resolution 54 grants the consent of Congress to 
an interstate compact settling the boundary on the Missouri 
River between the states of Missouri and Nebraska. The 
resolution contains
the substance of the boundary agreement between the two states 
and makes it binding on them.

                Background and Need for the Legislation

    As `` `most [state] boundaries are just a series of words 
on a piece of paper,' '' \1\ they are often the subject of 
legal disputes. Although the Supreme Court has original 
jurisdiction over such disputes,\2\ interstate compacts have 
long been used as an alternative instrument to resolve border 
disputes between states.\3\ Since boundary changes affect the 
political power and influence of the states, interstate 
compacts effectuating them require Congressional consent under 
art. I, Sec.  10, cl. 3 of the Constitution.\4\ Once the 
boundary line of a state is set, however, either by compact or 
otherwise, Congress is without power to change the line without 
that state's consent.\5\
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    \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, Sec.  2, cl. 1.
    \3\ 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).
    \4\ Virginia v. Tennessee, 148 U.S. 503, 518, 520 (1893).
    \5\ New Mexico v. Colorado, 267 U.S. 30, 41 (1925); Louisiana v. 
Mississippi, 202 U.S. 1, 41 (1906).
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    The boundary dispute between Missouri and Nebraska has a 
very long history. 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.\6\ 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.\7\ 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.\8\ The 
historical record demonstrates that the Missouri 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.'' \9\
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    \6\ Act of March 6, 1820, ch. 22, 3 Stat. 545; Act of February 9, 
1867, ch. 59, 5 Stat. 34.
    \7\ Missouri v. Nebraska, 196 U.S. 23, 33-35 (1904).
    \8\ Id.
    \9\ Meriwether Lewis, The Journals of the Expedition Under the 
Command of Capts. Lewis and Clark, (Nicholas Biddle, ed., The Easton 
Press 1989).
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    Finally, in 1904, the Supreme Court settled the dispute and 
held that McKissick's Island was part of Nebraska.\10\ In 
reaching its decision, the Court relied on the common law 
distinction \11\ between avulsion, ``a sudden cutting off of 
land by flood, currents, or change in course of a body of 
water,'' \12\ and accretion, ``the process of growth or 
enlargement by a gradual buildup: as [in] the increase of land 
by the action of natural forces.'' \13\ In a case of avulsion, 
the boundary does not change, whereas in a case of accretion, 
the boundary moves with the river.\14\
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    \10\ Missouri, 196 U.S. at 37-38.
    \11\ Id. at 35-36.
    \12\ Webster's Ninth New Collegiate Dictionary 120 (9th ed. 1990).
    \13\ Id. at 50.
    \14\ Missouri, 196 U.S. at 36.
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    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 Missouri River's further movement along 
the border.\15\ 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.\16\ Consequently, 
farmers whose land is in the disputed area have faced taxation 
and threats of foreclosure from both states.\17\
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    \15\ Letter from Hon. Doug Bereuter and Hon. Pat Danner to Hon. 
George W. Gekas 3 (June 25, 1999) (on file with the Committee) 
[hereinafter Letter].
    \16\ Id.
    \17\ Robin Tysver, Truce Near in 131-Year Border War, Oklahoma 
World-Herald, April 1, 1998, at 1.
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    After many years of negotiations and the appointment of an 
interstate commission, the boundary dispute has been resolved 
and the states have passed legislation embodying the 
commission's recommendations and incorporating the Supreme 
Court's decision.\18\ The final agreement shifts more than 
10,000 acres of land on both sides of a 50 mile section of the 
river.\19\ That agreement, which also provides for a mechanism 
to govern future boundary disputes, is contained in H.J. Res. 
54. Congress' consent will make the agreement binding on both 
states.
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    \18\ Letter, supra note 15, id.
    \19\ Tysver, supra note 17, at 1.
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                                Hearings

    The Committee's Subcommittee on Commercial and 
Administrative Law held a hearing on H.J. Res. 54 on July 29, 
1999. Testimony was received from the Honorable Doug Bereuter 
of Nebraska, the Honorable Pat Danner of Missouri, and David 
Duncan, a member of the Missouri Boundary Commission.

                        Committee Consideration

    On July 29, 1999, the Subcommittee on Commercial and 
Administrative Law met in open session and ordered reported the 
resolution H.J. Res. 54 by voice vote, a quorum being present. 
On August 2, 1999, the Committee met in open session and 
ordered reported favorably the resolution H.J. Res. 54 without 
amendment by voice vote, a quorum being present.

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                Committee on Government Reform Findings

    No findings or recommendations of the Committee on 
Government Reform were received as referred to in clause 
2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               Congressional Budget Office Cost Estimate

    In compliance with clause 2(l)(3)(C) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the resolution, H.J. Res. 54, the 
following estimate and comparison prepared by the Director of 
the Congressional Budget Office under section 403 of the 
Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, August 5, 1999.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.J. Res. 54, a joint 
resolution granting the consent of Congress to the Missouri-
Nebraska Boundary Compact.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
Mehlman, who can be reached at 226-2860.
            Sincerely,
                                  Dan L. Crippen, Director.
H.J. Res. 54--Granting consent of Congress to the Missouri-Nebraska 
        Boundary Compact.
    H.J. Res. 54 would give Congressional consent to the 
boundary change between Missouri and Nebraska. This compact 
would enable the two states to establish a compromise boundary 
without affecting private property rights or title to property. 
Enacting the resolution would result in no cost to the federal 
government. Because enactment of H.J. Res. 54 would not affect 
direct spending or receipts, pay-as-you-go procedures would not 
apply. The resolution contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act 
and would impose no costs on state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Susanne S. 
Mehlman, who can be reached at 226-2860. This estimate was 
approved by Paul N. Van de Water, Assistant Director for Budget 
Analysis.

                   Constitutional Authority Statement

    Pursuant to rule XI, clause 2(l)(4) of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article I, section 10, clause 3 of the 
Constitution.

                      Section-by-Section Analysis

Section 1--Congressional Consent
    Section 1 gives Congressional consent to the interstate 
compact between Missouri and Nebraska. The remaining portions 
of Section 1 set forth the Missouri-Nebraska Boundary Compact 
as substantially agreed to by the Missouri and Nebraska 
legislatures.
    Article I--Findings and Purposes: Defines the purpose of 
the Compact which is principally to establish an identifiable 
compromise boundary between the states of Missouri and 
Nebraska.
    Article II--Establishment of Boundary: Establishes the 
boundary at the center line of the main channel of the Missouri 
River, except for McKissick's Island, which the Supreme Court 
determined to be in Nebraska.
    Article III--Relinquishment of Sovereignty: Relinquishes 
any claims of sovereignty by each state over land on the 
opposite side of the agreed-upon boundary.
    Article IV--Pending Litigation: Clarifies that the Compact 
does not affect pending litigation over the title to any of the 
land covered by the Compact.
    Article V--Public Records: Confirms the continuing validity 
of legal documents in lands relinquished by each state.
    Article VI--Taxes: Provides that the land covered by the 
Compact be taxed by only one state and imposes a five year 
statute of limitations for liens or other rights arising out of 
the imposition of taxes on such lands.
    Article VII--Private Rights: Ensures that the Compact will 
affect neither the riparian rights of riparian owners nor any 
claims or rights of adverse possession. Additionally, the 
states agree not to assert claim of title to the riverbed, 
abandoned riverbed, or land along the river against previous 
owners.
    Article VIII--Readjustment of Boundary by Negotiation: 
Pledges that if at any point the boundary line moves so that it 
is not within the river, both states will renegotiate the 
boundary with the stated intent to place the boundary within 
the river.
    Article IX--Effective Date: Makes the Compact effective on 
the first day of January the year after it is ratified by the 
states and approved by Congress, so long as Nebraska ratifies 
the Compact by October 1, 1999 and the Congress approves within 
three years of Nebraska's ratification.
    Article X--Enforcement: Permits the states to seek 
enforcement of the Compact in court.
    Article XI--Amendments: Provides that the Compact will 
remain in full force indefinitely unless amended by interstate 
compact.
Section 2--Right to Alter, Amend, or Repeal
    Section 2 specifies that Congress reserves the right to 
alter, amend or repeal the Compact in the future.
Section 3--Construction and Severability
    Section 3 mandates the liberal construction of the 
Compact's terms and, in the event of an adverse ruling, makes 
the Compact severable.
Section 4--Inconsistency of Language
    Section 4 ensures the validity of the Compact despite 
insubstantial differences in form or language.

                                  
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