UNITED STATES v. LOUISIANA

Transcript: 

Argument of J. B. Miller

Chief Justice Earl Warren: Number 9, original, United States of America, plaintiff versus State of Louisiana, et al.

Justice Hugo L. Black: Mr. Miller, I wonder if it would disturb you, can I ask you two questions if you could answer me.

Mr. J. B. Miller: I hope not, Your Honor.

Justice Hugo L. Black: You may not be able to answer briefly because I notice according to the Government's brief there must be about 27 different issues here.

But I was wondering if you could tell us number one, in a very few brief word what your litigation is about?

Mr. J. B. Miller: Yes, sir.

Justice Hugo L. Black: And secondly, to what extent are you relying on my vain protest in the Circuit California case to sustain your case?

Mr. J. B. Miller: I'll answer the first question Your Honor.

As you know this Court held in the first Louisiana case that Louisiana owned none of the marginal sea that our title stopped at the inland water -- at the inland waters that we own the inland waters under the doctrine of Pollard versus Hagan, and Pollard versus Hagan was in that case and in the California case limited to inland waters with the result we owned nothing beyond inland waters none of the territorial sea.

Following that, Congress passed his Submerged Land Act by which they confirmed and granted to the states a three-mile belt of marginal sea lying outside of its inland waters.

The -- it not only confirmed the grant to the three-mile belt but in cases where the state's boundary, historic boundary extended beyond three miles it confirmed it out to its historic boundary.

The second Louisiana case held that we did not have a historic boundary extending three leagues that we had contended.

Although, this Court held and the Government conceded in that case that we did on the islands within three leagues of the coast and that we also owned the water between those islands and the shore because they were so situated as to enclose inland waters.

Now, this case is to determine where the limit of the inland waters of Louisiana are, the inland waters that belong to this state under Pollard versus Hagan.

And once we determine where the inland waters are, then we measure three miles outside of those inland waters for purposes of the Submerged Lands Act.

Justice Hugo L. Black: Is that very different from the dissent I found in the Circuit California case?

Mr. J. B. Miller: Your Honor, we have felt that we must accept the California case in holding that the Geneva Convention applies.

We may not agree with that but that was the holding of this Court.

Now, if you will remember this case -- this Court in the Texas case and in the Florida case awarded both Texas and Florida their historic limits, Texas goes out three leagues, Florida goes out three leagues but Alabama, Mississippi and Louisiana were brought into their shores into their inland water.

Justice Byron R. White: You're not -- you certainly have a first point which is argued yesterday?

Mr. J. B. Miller: Yes sir, but the inland water land Mr. Sachse argued yesterday is the limit of our inland waters.

It has nothing to do with our historic boundaries.

Justice Byron R. White: Well, I understand but you said you conceded.

You conceded you have to accept the California case which Geneva Convention applies?

Mr. J. B. Miller: No sir, I did not say that we conceded that.

I said that for the purposes of our alternative coastline I want to argue (Voice Overlap) we have assumed that this Court will follow.

Justice William J. Brennan: But you still relied primarily on the argument that Mr. Sachse made yesterday?

Mr. J. B. Miller: Absolutely.

And I want to make it clear that nothing that I say should be construed in any manner as detracting from a primary --

Justice William J. Brennan: This is only if we decide that that argument can't prevail --

Mr. J. B. Miller: We filed an alternative motion asserting an alternative coastline primarily in our position of the restrictive and narrow interpretation of this Convention that the Justice Department put on it.

They have come up with a line for Louisiana's inland waters that's virtually a shoreline.

And it's my purpose to point out to this Court that even -- that whether or not you accept the inland water lines and Mr. Sachse advocates there's no justification for the line that the Government continues.

Justice Hugo L. Black: I take it would not limit it that your part of the argument in reference to the issue.

What I meant was if there's rest primarily on argument which is practically the same that I made in California case.

Mr. J. B. Miller: Yes sir, to a great extent Mr. Justice to great extent.

We feel that the shores of the Gulf of Mexico and particularly Louisiana are so shallow, there's so changing.

There's no way the foreign commerce or any ocean going commerce to go anywhere in Louisiana because of the shallow waters.

We've had the dredged channel, the United States Government spent over $300 million dredging channels in to the ports of Louisiana.

There could be no commerce, they would be no port but for these dredged channels, this is a gently sloping shore, it is of no value at all to foreign commerce.

And we feel that these are factors that this Court must take into consideration in determining what are the inland waters of Louisiana in the Gulf of Mexico.

Now, I have already alluded to the disagreement between the Government and I say that was the interpretation of the Convention.

Louisiana takes the position that the Convention is a general document that it could not possibly be held to cover every complexity and every detail of every coast in the world.

We think it's like the United States Constitution and that -- it must be interpreted liberally in order to make it work.

The Government on the other hand said we've got to stick to the letter of that document that we can't go beyond its four corners and where it silent it is prohibitive.

It denies to us principles of international law that are well established.

Justice Hugo L. Black: Would you repeat that when you say, the Government said --

Mr. J. B. Miller: That where the Convention is silent it is --

Justice Hugo L. Black: (Voice Overlap) it is prohibitive?

Mr. J. B. Miller: -- it is prohibitive.

For example, the Convention is silent on whether or not islands may be used to form that perimeter of bays or to enclose inland waters.

The Government takes the fact position that that means it is prohibitive that we may not use islands to enclose inland waters.

Yet, in every single instance of every bay that they have recognized along our coast they do in fact used islands to form the perimeters of those bays.

As a result of this type of narrow interpretation of this Convention, the Government has arrived of what we consider as shoreline.

It has changed the status of the inland waters of Louisiana from inland to the high seas.

It's changed the status of the inland waters which have been recognized by this Court to be inland.

A typical example of this is in Chandeleur and Breton Islands.

These waters are enclosed by the Chandeleur Island and by Breton Island.

The Government concedes -- now, listen to this, the Government concedes that these waters are inland but they say that they're inland only because of the concessions they made in this prior case where they admitted and conceded when we were arguing for a three-league limit.

They admitted that all of the island within three leagues with the territory of Louisiana and that all of the waters between the islands and the mainland was so situated as to enclose inland waters.

This Court recognized this in the first Louisiana case and pointed out that these waters had become vested in Louisiana at the time it was admitted into the union and our territory under the adoption of Pollard versus Hagan.

In the California case, this Court again recognized that these waters were inland.

It distinguished them from the Santa Barbara Channel which the Court had held connected two areas of the open sea.

In distinguishing these waters from the Santa Barbara Channel, it pointed out that Breton Island was a cul-de-sac that Chandeleur Island led only to Breton island if it led anywhere that neither served as a route of passage between two areas of the open sea and both was so shallow as to be navigable.

Now, the Government --

Justice Potter Stewart: But where is the mainland on that chart?

Mr. J. B. Miller: Your Honor, where is the mainland (Voice Overlap).

These are all islands.

Justice Potter Stewart: Those are all islands, how about up -- above to your left?

Mr. J. B. Miller: This is Mississippi.

Justice Potter Stewart: Yes.

But it's still mainland?

Mr. J. B. Miller: This is the mass of islands that goes to the main.

This is City of New Orleans, right here.

Justice Potter Stewart: I see.

Mr. J. B. Miller: All of Louisiana's shoreline is out.

This is what makes it so difficult to apply this Convention without the use of a straight baseline system.

Now, these waters have been phrased not only that it recognized in the phrase of Louisiana case and in the California case.

They have been recognized as inland waters of Louisiana in case in 1905 before this Court involving a boundary dispute between Louisiana and Mississippi.

Even that Chapman Line which the Secretary of Interior Chapman drew in 1950 as the most landward position the Government could claim in these waters recognized that these were inland and enclosed the water outside the Chandeleur Islands.

They were again recognized by this Court in the supplemental decree in 1965 because we were awarded title to waters line outside of Breton Island.

But now, the Government says, the Convention has changed all of it that there's now no legal basis for holding these waters to be inland that the Convention is reclassified them into the high seas.

Justice Hugo L. Black: May I ask you about, how much difference that make in the amount of land the Government claims and the amount that Louisiana's claims the difference between your claim?

Mr. J. B. Miller: In this particular area, Your Honor?

Justice Hugo L. Black: Yes.

Mr. J. B. Miller: It's about 15 miles between these islands and these islands.

The Government says that the Convention means that we only get a three-mile belt around each island.

So, there would be a strip of high seas in there.

But the Government doesn't withdraw its concession.

It does not withdraw its concession in this case.

Justice Byron R. White: How about this particular -- these particular islands?

Mr. J. B. Miller: In this particular water, it does not withdraw its concession.

Justice Byron R. White: But if -- but applied elsewhere --

Mr. J. B. Miller: It applies its -- it withdraws in anywhere else.

Justice Byron R. White: Yes.

Mr. J. B. Miller: But it says --

Justice Byron R. White: Well, what (Voice Overlap) concession anywhere else?

Mr. J. B. Miller: That's right.

It says, except for its concession in this particular instance these waters would be high seas that the Convention has changed the status from inland waters to high seas.

Now, we say that Congress never intended any such results.

We say that the congressional hearings and the hearings before the Committee on their adoption of a Geneva Convention, the Committee asked the State Department this very question.

Are there any waters which are now entitled but which would become high seas if we adopted this Convention.

And the State Department's answer was in the negative.

Now, we say that the Convention has not changed these waters that the Convention should be interpreted liberally and it should be interpreted so as to continue the principles of international law which were in existence prior to the Convention and which are not conferred to the Convention.

But if we're wrong and if the Government is right and if the Convention should be interpreted as to change the status of inland waters from inland to the high seas then we say that these waters must be recognized as historic waters which are accepted from the Convention.

The Convention expressly accepts the category of historic waters.

Justice Hugo L. Black: Does the Government claim that the Convention changed the boundary of the country or change the boundary of the state?

Mr. J. B. Miller: Yes, sir.

If the Government contends that the Convention changed the status of inland waters and the Government contends that the Convention changed the boundary of this country and took away the territory of Louisiana and we say that if that's true and we don't think it is but if that's true, then we say that the act of Congress adopt in this Convention is unconstitutional.

Justice Hugo L. Black: Why?

Mr. J. B. Miller: Because Congress may not divest the state of its sovereign territory.

It may not see --

Justice Hugo L. Black: Is that what the Constitution provides?

Mr. J. B. Miller: Your Honor, the Constitution provides, I believe, in Article IV that Congress may not take away the part of one state to form another state and that it may not add territory to the first state without its consent.

The second article provides that the power of Congress to seed and sell its own property, its own territory is an incumbent.

The cases have held under this that Congress may not change the boundaries of a state without that state's consent.

Justice Hugo L. Black: As I understand, you're saying you can't change it and give it to another, is there any --

Mr. J. B. Miller: There is no expressed provision in the Constitution saying that Congress may not take away the territory of a state and give it to a foreign nation.

But, we say that if it can't take away the territory of a state and give it to another state, it must follow that it can't give it to the family of nations.

And cases have so held in the California case, Mr. Justice Harlan pointed out that the contraction of a state's boundary in the name of foreign relations would be highly questionable and we have cited in our brief several cases in which the courts have held that Congress may not contract the state's boundary or cede its territory without the consent of that state.

Justice Hugo L. Black: Does the Government's claim rested on in interpretation of the Submerged Land Act?

Mr. J. B. Miller: No, sir.

The Government --

Justice Hugo L. Black: Merely on the treaty?

Mr. J. B. Miller: Government's contention as I understand it is that by virtue of the adoption of the treaty that there is now no legal basis for these waters remaining inland waters but since they have conceded that they were inland waters in the earlier case that they do not deal that it is in the public interest to withdraw that concession.

Now, a similar situation exists in the Mississippi River Delta.

Your map number five will portray this area.

Louisiana's alternative coastline is shown in solid green and its three-mile limit is shown in dusked green lines.

The Government's coastline the more restrictive one is shown in solid brown where there are no brown lines the Government uses the shore as the line.

The Government's three-mile limit is shown in dusked brown.

Now, we all know of the importance of the Mississippi River.

This river extends not only through Louisiana, it goes all the way to the Ohio and the Midwest and the Missouri and the west.

This is a river that was responsible for the Louisiana Purchase.

It participated in the war of 1812 and other wars.

It's the most important waterway in this country.

Now, it is inland water.

Could the Government cede the Mississippi River to the foreign -- to the family of foreign nations and say this is high seas just by doctrine of treaty?

Certainly not, the treaty making power of Congress is limited to the constitutional power granted Congress.

The Government concedes that most of these waters are geographical -- geographic inland waters.

Justice Byron R. White: What does that mean?

Mr. J. B. Miller: That means that under the Convention, they qualify mathematically as a bay.

For example, they say that West Bay in going to island bay qualify as bays geographically under the mathematical formulas of the Convention.

Louisiana cites that all of these waters are inland waters both historically and geographically.

And while the Government concedes that most of them do the major exception is East Bay.

They say that East Bay is high seas.

Now, East Bay is the most important bay in this delta area.

All of this area was formed by sediment.

It's continuing to deposit sediment.

This passage are changing, some of them being extended seaward others are regressive it's an ever changing area.

But going back to East Bay, the Government says that East Bay is high seas because it does not qualify under Article 7 of the Convention.

Now, Article 7 defines a bay as a well-marked indentation whose depth of penetration is sufficient to enclose waters, East Bay meets that test, it obviously has no mere curvature of the coast.

Another requirement is that the width of the bay may not exceed 24 miles.

East Bay is only 15 miles.

But Article 7 also requires that the area of the bay must be at least equal to the area of a semicircle, the diameter of which is a closing line of the bay.

Since East Bay does not meet this test in it entirety, the Government says, no bay its high seas.

We do point out at this point however that a substantial portion of East Bay does meet the semicircle test and this map shows a red line which satisfy the semicircle test and the Convention in every respect.

The Government even denies it.

Justice John M. Harlan: Can I ask you a question?

Mr. J. B. Miller: Yes, sir.

Justice John M. Harlan: On the premise of your argument portion of the case, are these questions matters of this Court's contention on this record or would it require --

Mr. J. B. Miller: Yes, sir.

Justice John M. Harlan: -- the department of the Special Master?

Mr. J. B. Miller: No Your Honor.

We think that this case can be determined on the basis of this record.

Now, I'm not going to go into a lot of detail about selection of headlines and whether we should select the point here that's 200 feet from a point there.

But there are principles that are involved in this case that I think this Court must decide even before a mass that could start on this case.

And the one principle that I've mentioned before is what about the inland waters that qualified as inland waters and form part of the sovereign territory of Louisiana before the adoption of this Convention.

A Master could not start on this case without the answer to that question.

There aren't really any substantial factual disputes in this case as I understand it.

Justice Abe Fortas: Mr. Miller as I understand that your -- I thought you are going to argue the case on the assumption that the Convention did apply?

Mr. J. B. Miller: Yes, sir.

Justice Abe Fortas: But now what you're saying is that even if the Convention does apply it should not apply in respect of these particular points --

Mr. J. B. Miller: No, sir.

Justice Abe Fortas: -- that you are raising such as East Bay?

Mr. J. B. Miller: No, sir.

Justice Abe Fortas: Well, if you apply it -- well, now let me just be very sure that I'm following you the best I can.

You're saying that even if you apply the Convention, this is your alternative argument and I understand that.

If you apply the Convention then you don't apply all of the definitions in the Convention and you take Louisiana's historical inland waters in the case that you were just discussing which relates to East Bay.

If you take this Convention literally with respect to the definition of a bay and Article 7, wouldn't that rule out the East Bay?

Mr. J. B. Miller: No, sir.

Justice Abe Fortas: Now, tell me --

Mr. J. B. Miller: Your Honor, we --

Justice Abe Fortas: -- why it would not?

Mr. J. B. Miller: -- in this alternative argument --

Justice Abe Fortas: I'm just taking this is an illustration.

Mr. J. B. Miller: I'd like to --

Justice Abe Fortas: Because I'm trying to get the principle upon which you're --

Mr. J. B. Miller: I think --

Justice Abe Fortas: -- arguing that case and I haven't got it yet.

Mr. J. B. Miller: I think I can clear that for Your Honor right now.

We do not depart from the Convention.

We say that Government's interpretation of the Convention is wrong and but that if you do follow the Government's interpretation then you must hold the Convention to be constitutional.

We interpret the Convention so --

Justice Abe Fortas: Must hold?

You must hold the Convention to be unconstitutional?

Mr. J. B. Miller: Yes sir, if you adopt the Government's interpretation of it.

If you adopt our interpretation of it you do not.

Article 7 accepts the category of historic bays from this mathematical formula.

It is our position that if a body of water has qualified its inland waters throughout the history of this country if it has been the inland waters and territory of a state throughout the history of this country then it is historic inland waters and it is accepted from the mathematical requirements of this brand new semicircle test.

Justice Abe Fortas: Well, maybe that -- maybe I didn't understand you.

As what you're saying is that you accept the Convention in this branch from the argument except where it conflicts with what you argued to be Louisiana's historical territory.

Mr. J. B. Miller: No, Your Honor historic bays are accepted in the Convention itself.

Article 7 of the Convention provides that the foregoing provision shall not apply to so-called historic bays.

We say these are historic bays.

Justice Abe Fortas: Well, then where does your argument about unconstitutionality play a role?

Mr. J. B. Miller: The Government says they are historic bays that they are no longer inland waters and that they are high seas.

We say if that is a proper interpretation of this Convention then the Convention must be unconstitutional.

But we don't think it's unconstitutional.

Justice Abe Fortas: You say if you ignore what you say is the exception in Article 7 exception of historic bays, if that is ignored then the result would be unconstitutional?

Mr. J. B. Miller: In East Bay, that is true, yes sir.

Now, Louisiana claims East Bay as historic waters not only in the legal sense that we've just been talking about as having qualified as inland waters previously but also in the historical sense of exercise of sovereignty.

At the time of the Louisiana Purchase in 1803 and when Louisiana was admitted to the union in 1812 there was no mathematical requirement for a bay.

There was no limitation upon the closing line.

The only requirement was that the bay have the general configuration and characteristics of a bay and that its depth of penetration be such as to enclose inland waters along each sides.

Certainly, East Bay met this test and this map of 1838 shows a configuration of East Bay at that time.

Earlier maps show the same general configuration and we can assume that this was a configuration in 1812.

It's obvious that its depth of penetration was sufficient to enclose inland waters and it therefore qualified as the inland waters for the State of Louisiana when it was admitted to the union and became part of a territory of this state under adoption of Pollard versus Hagan.

Not only is this true but Louisiana's act of admission, its act of admission includes all of its inland waters.

It was described as being bounded on the south by the Gulf of Mexico not the shore but the Gulf of Mexico.

Justice Abe Fortas: Excuse me Mr. Miller, where is Article 7 in your brief?

Mr. J. B. Miller: Your Honor, unfortunately, it did not appear in the appendix, it is -- I mean in the index to the appendix.

It is in our appendices to the brief at page 127.

Justice Abe Fortas: That's the Government.

I'm looking at the Government's brief here (Voice Overlap).

Mr. J. B. Miller: I don't think they have the entire Convention.

Justice Abe Fortas: No, but they have what purports to be Article 7 that starts on page 145.

Mr. J. B. Miller: Section 6 of Article 7 is the one to which I refer.

Justice Abe Fortas: And they don't have that present.

Mr. J. B. Miller: This -- no sir, I'm sure they left it out.

But this small appendix to our brief is the one that contends.

Justice Abe Fortas: Thank you.

Justice Byron R. White: Well, what page?

Mr. J. B. Miller: On page -- it starts on 127, the Article the I referred to is number 6 on page 130.

It says before going -- after going through all the mathematical test of bays, it says, “the foregoing provision shall not apply to so-called historic bays or in any case where the straight baseline system is used.”

Now, going back to Louisiana's boundaries, each boundary was a Gulf of Mexico since East Bay was inland waters it was obviously not the Gulf of Mexico, it became the territory of this state in 1812 and remains the territory of this state under the doctrine of Pollard versus Hagan.

Now, towards the turn of the century, international law had begun to develop a limitation upon closing lines.

And the 10-mile closing line was mentioned with increasing frequency and several countries had adopted it.

This chart shows that East Bay in 1895 more than adequately satisfied even the 10-mile lines.

This map also shows another interesting factor.

Grande Pass is a peninsula in East Bay when the United States Government started the improvement of navigation at South Pass.

This Grande Pass was dammed off to force more water through South Pass.

As a result of this procedure, the sediment flow in the East Bay was curtailed.

Grande Pass subsided and eventually disappeared.

The 1922 coast chart shows this.

It shows East Bay after this occurrence.

The Passes at South and Southwest Pass had continued to go forward but Grande Pass had disappeared.

East Bay had a greater penetration than depth of penetration than ever before but for the first time its entrance exceeded 10 miles.

At that time, international law said, you draw a 10-mile line at the close -- at the nearest point within the bay which does not exceed 10-miles.

South Pass and southwest Pass have continued to grow, they're still growing.

In 1958, when the Convention was adopted this was a configuration of East Bay.

It was still a bay.

It still had the sufficient depth of penetration to be a bay.

It is long since then and the next map shows the 1968 depth of penetration and width at the bay.

Now, the Government says that the 10-mile rule never became international law.

We don't know, but we say this that if it never became international law then there was no limitation and East Bay remain the bay and inland waters of this state by virtue of its general configuration and characteristics as a bay.

It certainly had sufficient depth of penetration.

Now, we've shown that East Bay has been part of a territory of this state since the beginning, since 1812.

We say that the Convention cannot now divest Louisiana of this territory without the Convention being unconstitutional.

Since the time of historic bays is accepted from the strict, inflexible mathematical requirements that will inject international law in 1958, we say that East Bay is a historic bay by virtue of having always qualified as a bay throughout the history of this country and that Congress has no power to do otherwise.

It has no more power to disclaim title to East Bay than it does in Mississippi River or the District of Columbia.

But East Bay had not owned a qualified geographically as a bay.

The classic definition under international law of historic water is waters over which a nation has exercised sovereignty for a considerable period of time with an attitude of general toleration among foreign states.

Now, the Government says we've exercised no sovereignty but it confuses ownership with sovereignty.

It seems to imply that the United States must have openly and expressly asserted a clean that East Bay was a part of the territory of this nation.

This is not necessary, sovereignty does not mean ownership.

Sovereignty is authority, it's the exercise of power or control; it's less than complete territoriality.

This is made clear that the 1962 study of the United Nations which we understand the Government has adopted in the Alaska case but it's not necessary for this classic type of definition of historic waters that all conceivable acts of sovereignty be exercised.

It's only necessary that a nation exercise some act of sovereignty which is inconsistent with the concept of high seas.

Justice Abe Fortas: Is there a definition in the treaty of historic waters or historic bays?

Mr. J. B. Miller: No, sir.

The Convention is silent on the definition of historic waters and it's our contention that that time was accepted from these mathematical requirements to serve as a safety valve for the various situations we're talking about as well as other situations.

Justice Abe Fortas: Well, I noticed that Article 7 that the reference says the so-called historic bays and historic is in quotes --

Mr. J. B. Miller: That's the only time it's even mentioned Your Honor.

There is no definition in the Convention.

Now, the definition that is recommended by the United Nation is the classic definition that I'm talking about now, it's the exercise of sovereignty and that means that a nation has exercised some sovereignty for a considerable period of time.

That's the best time they could come up with was the word “considerable” with the general attitude of toleration by foreign nations.

But it's not necessary that all acts of sovereignty be exercise only and necessary that there will be -- the exercise of some act of sovereignty which is inconsistent with the concept of high seas.

In the Norwegian Fisheries case which held Norway's waters to be historic behind their baselines, the only claim that Norway ever made was the fishing.

They claim fishing rights and by virtue of those rights having been asserted for so long of time and the lines having been drawn, they were held to be historic borders.

Now, it is not inconsistent with the concept of high seas to exercise limited control which is permitted by the Convention within the contiguous zone.

As for example the -- to prevent the infringement of your custom laws, the infringement of your immigration laws or your sanitary laws, there is a fringe around the territorial sea and which you may exercise limited control to prevent violation of a nation's laws with in its own territorial sea.

But we're not talking about that here.

We're talking about the freedom of the seas and the freedom of the seas is where a nation may not exercise sovereignty unless its claim in these waters as its own and the freedom of the high seas which are set forth in the Convention on the high seas or freedom of navigation, freedom of fishing, freedom of flight, and freedom to lay pipe lines.

If sovereignty is exercised in any one of these theories it's absolutely inconsistent with the concept of high seas and can be justified only on a basis that the nation is claiming the waters as its very own.

Now, we --

Justice Hugo L. Black: Do I understand your argument to the foreign States that Government is without constitutional power to confer to any other nation or to all the nations as part of the high seas, any submerged land that have once been considered as belonging to the Government?

Mr. J. B. Miller: Not quite, Your Honor.

Not quite, I think that the Government may do whatever it wishes with its own territory but I say that the United States Government may not convey to a foreign state any part of the sovereign territory of a state.

Justice Hugo L. Black: But if the boundary is the same, their ownership would be the same --

Mr. J. B. Miller: No sir, the boundaries of the states under the California and Louisiana cases stops at the inland waters.

The boundary of a nation extends for three miles beyond that.

That's our present claim, three miles.

Russia claims 12 miles and the one thing that could never be agreed upon on this Convention was how many miles could a nation claim.

This contention is silent.

Justice Hugo L. Black: (Voice Overlap) the Government without constitutional power to convey any of the first three miles that you say is inland of the submerged land?

Mr. J. B. Miller: I would have to presume that if Congress and the president so chose that they could do it as well as it did not infringed upon the boundary of a state.

I think it would be a disaster to do it but I think that this I have to admit that this power has vested in commerce.

Justice Hugo L. Black: Well, do you assume that the state has always owned the three miles from the coastal line so that the Government could not have been decide?

Mr. J. B. Miller: No, sir.

This Court held in the first Louisiana case that Louisiana did not own any of the three-mile limit that we stopped at our inland waters.

Now, if you look at this next map, -- if you look at your map number 5, you will see that there is a three-mile limit beyond our inland waters.

The boundary of Louisiana stops at the inland waters.

But the Submerged Land Act -- the boundary of a nation stops at the three-mile limit.

The Submerged Land Act has granted to Louisiana the re sources under the three-mile belt but I cannot say that we actually owned the water of the three-mile belt.

But our boundaries are inland waters.

Now, we've discussed the classic definition of exercise of sovereignty.

We've shown that East Bay has qualified geographically as inland waters of this nation since 1803 in the Louisiana Purchase and since then Louisiana was admitted to the union in 1812.

This fact alone presupposes that all kinds of sovereignty were exercised all these waters.

If it formed part of a territorial of this state and this nation, there is a presumption that sovereignty was exercised over these waters.

And it is impossible at this late date to determine every single act of sovereignty that's been exercised by this nation, by this state, by the local authorities and everybody else but we will mention some.

Now, Mr. Sachse has already discussed the Act of 1895 as a basis of the inland water line.

The Government has objected to this and contends that this Act is limited to navigation that it have no effect whatsoever but anything else except navigation.

We violently disagree with that interpretation but for the purposes of our discussion of history of East Bay, we will assume that the Government is right and that it is limited to navigation.

Now, freedom of navigation is the first freedom mentioned in the Convention on the high seas, no nation may regulate navigation on any part of the high seas.

To do so, it can only justify it on the basis that it is claiming those waters as it's very own.

Now, Mr. Sachse has pointed ut that prior to 1895, Congress had adopted the international rule for the prevention of collisions on the sea.

These rules applied not only to the high seas, they also applied to the marginal or territorial sea.

Subsequent acts of Congress, treaties and the case of the Delaware make this clear.

The international rules applied to the high seas and the territorial seas.

The Act of 1895 imposed the inland rules only upon inland waters.

But it imposed the inland rules upon all vessels, foreign as well as domestic.

It says that all vessels must comply with the inland rules once they get into the inland waters and it authorize the Secretary of the Treasury to designate and define a line marking those inland waters to carry out the purposes of that act.

Now, the reason for the designation of this line by the Secretary of the Treasury, the reason for it was of course to regulate navigation.

But the effect of it goes beyond that.

It was a line marking the inland waters of this United States.

Now, in 1895 immediately after the passing of the statute, the Secretary of Treasury began his test of designating and defining these lines.

He picked the most important areas in the United States for his first lines in 1895.

He included Philadelphia Harbor and Delaware Bay, Baltimore and Chesapeake Bay, New York, Charleston, Savannah, Mobile and New Orleans and the Delta of the Mississippi River.

Among their first lines designated in 1895, there had to be some lines showing where our inland, the inland waters of this nation were so that we could enforce inland rules on one side and international rules on the other side, and he designated these lines in 1895.

Justice Hugo L. Black: Was that done under the statute?

Mr. J. B. Miller: Yes sir, an Act of Congress of February 1895 ought --

Justice Hugo L. Black: Did it define what the subject was?

Mr. J. B. Miller: Yes, it's obvious.

I don't recall the title of the statute, Your Honor.

It did provide that the inland rules what to be used in the inland waters of the United States and it did authorize and direct the Secretary of the Treasury to designate and define the line -- the line dividing the inland waters from the high seas.

Justice Hugo L. Black: Where is that statute published, in your brief?

Mr. J. B. Miller: It is in one of these appendices to our brief, I have the title, Your Honor.

It's -- the title is “An Act to Adopt Special Rules for the Navigation of Harbors Rivers, -- Rivers and Inland Waters of the United States except the Great Lakes” supplementary to an Act of August 19, 1890 entitled an, “Act to Adopt Regulation for the Preventing -- for Preventing Collisions at Sea.”

This Act was complementary to the Act of 1890 which have adopted the international rules.

This Act adopts the inland rules.

Justice Hugo L. Black: Is it published any way in your brief or the Government's brief?

Mr. J. B. Miller: I can't answer that offhand, Your Honor.

We've got so much in these briefs.

Do you have it Mr. Cox?

Argument of Archibald Cox

Mr. Archibald Cox: It's on pages 150 and 151 of our opening brief Mr. Justice.

Justice Abe Fortas: Well, why is, your point I take it is that the action of regulating the navigation on the inland waters was an act of sovereign?

Rebuttal of J. B. Miller

Mr. J. B. Miller: Yes, sir.

Justice Abe Fortas: And since that arguably sovereign power was exercised with respect to East Bay taking that as an illustration that constituted an exercise of sovereignty over East Bay by the National Government --

Mr. J. B. Miller: Yes, sir.

Justice Abe Fortas: -- and therefore, it followed that East Bay is historic waters?

Mr. J. B. Miller: Yes, sir.

That's exactly our position.

Justice Abe Fortas: Right.

Mr. J. B. Miller: That's one of our positions.

We say that irrespective of that (Voice Overlap) --

Justice Abe Fortas: I understand that, that's quite enough for me at the moment and for what I want to ask is you would not argue of course that the comparable exercise of control over navigation on the open seas constituted an act of sovereignty over the open seas, would you?

Mr. J. B. Miller: Your Honor, Government says East Bay is open seas.

Justice Abe Fortas: I understand that but you wouldn't say that taking this in clearly international waters that the regulation of shipping, United States shipping in the international waters, that's not an act of sovereignty.

Mr. J. B. Miller: If it is exercised within well-defined areas and marked and is exercised for a sufficient period of time, the answer is yes.

This is exactly what happened in Norway.

Norway had drawn these lines for fishing purposes.

And there had been no concept of straight baseline before the Convention and the Court held that they will -- there were -- historic waters because Norway had controlled fishing inside those lines.

If we were to draw off a part of the high seas and stationed gunboats out there in regulation and say you can't come in here unless you apply -- comply with our regulations and we do it for sufficient period of time without objection from foreign states its historic waters.

Justice Abe Fortas: I understand your position.

Mr. J. B. Miller: Now, the 1895 line around the Delta was defined as commencing at the light -- Southeast Pass Jetty Light.

It ran thence to Pass (Inaudible) and thence to the (Inaudible) Island in the Chandeleur Chain.

It commenced again by separate description at South Pass East Jetty Light ran of Southwest Pass and thence north to shore.

This description was published in the Treasury Department Circular 127 of July 1895 and was also indicated on the United States Coast Chart 194 of that year.

And we have circled this in red and this map appears in the reduced scale in (Inaudible).

I'm sure you can't read it but that's what it says.

Now, this line enclosed all of the waters of the Delta including East Bay.

Similar lines were designated again in 1897 and 1900.

After 1900, the authority was transferred from the Secretary of the Treasury to the Secretary of Commerce and Labor.

And in 1905 and in 1907, the Secretary of Commerce and Labor designated similar lines making only such adjustments that were occasioned by the seaward growth of the Passes.

The Secretary of Commerce and Labor became the Secretary of Commerce.

And in 1917, another line was designated by the Secretary of Commerce.

The lines were again designated in 1927 and 1932.

Our next map shows a composite of all of these lines as well as in 1953, Your Honors.

At the time these lines were drawn, each and every one of them enclosed the entirety of East Bay.

The adjustments in the lines were occasion only by the seaward growth of those Passes.

Since 1895, that bay has been enclosed as inland waters of this country.

Justice Hugo L. Black: Your argument is that that is the line that encloses the inland waters?

Mr. J. B. Miller: Yes, sir.

Well, we -- our argument is --

Justice Hugo L. Black: That and not the treaty control it?

Mr. J. B. Miller: Well, --

Justice Hugo L. Black: -- and not the treaty?

Mr. J. B. Miller: Your Honor, we say that because of these lines that this makes East Bay an historic bay which is accepted from the treaty.

It is accepted by its own terms from the mathematical requirements of the treaty and we say that these lines marked the inland waters of the State of Louisiana.

Justice William O. Douglas: What date did you say Mr. Miller was the last adjustment of that line?

Mr. J. B. Miller: When did?

Justice William O. Douglas: What was the line time one of those lines?

Mr. J. B. Miller: 1953.

Justice William O. Douglas: 1953?

Mr. J. B. Miller: This is the inland water line that Mr. Sachse discussed yesterday.

Justice William O. Douglas: And there's been none going since 1953?

Mr. J. B. Miller: Not in this area to my knowledge.

Justice Byron R. White: Which map is that in our packet?

Mr. J. B. Miller: That is map number 15.

Justice Byron R. White: But at some point for purposes of this case that line freezes I take it.

Mr. J. B. Miller: We take the position that the line of 1953 is frozen because Louisiana has adopted a statute declaring as its boundary.

Now, --

Justice Byron R. White: Under the -- for purposes Submerged Land Act the line seizes to be adjusted?

Mr. J. B. Miller: Yes, sir.

As a matter of fact, the coastguard tried to change this line last year.

They held hearings all over the Gulf of Mexico and there were such a furrow, there were so many objections by the shipping interest and the people who had economic interest in this area that they abandoned the whole project.

We have to have a line like this in Louisiana because of shallow waters, the small boats, fishermen who have been out on East Bay and outboard motorboat fishing.

And the Government says this is high seas in the 16-foot motorboat.

We can't even get to the shores in Louisiana without dredged channels.

There must be a line somewhere out there.

Now, we say that these lines qualify straight baselines under Article 4 of the Convention also because we think to do and we think that the Convention should be interpreted as in including lines such as these because this is necessary for the state in this country.

The waters of Louisiana so shallow, there's no way for them to be of any benefit to any foreign commerce, they're not like the Santa Barbara Channel.

The Santa Barbara Channel is 2000 feet deep.

We're talking about waters for the most part of an outboard motorboat has traveled getting in.

Justice Byron R. White: But the position of United States doesn't mean that the waters outside its coastline or shoreline, whatever you want to call it or international waters in the sense that I just mean just the territorial sea?

Mr. J. B. Miller: No, sir.

In East Bay, can I turn over to that?

In East Bay, the Government says, the high seas, this is the limit of the high seas.

This is a three-mile territorial sea.

This line represents the high seas.

Justice Byron R. White: Well, yes but for purpose of Convention the Convention doesn't say how far the territorial sea goes.

Mr. J. B. Miller: But the United States Government does, it says three miles.

Justice Byron R. White: I know it.

They say that.(Voice Overlap)

Mr. J. B. Miller: No sir, the Convention --

Justice Byron R. White: It doesn't mean the Convention by --

Mr. J. B. Miller: There was no agreement on the territorial sea.

Russia claimed 12 miles.

We claim three miles.

We could not agree but the United States has consistently asserted three miles and under their present position, this would make a substantial part of East Bay high seas.

We would assert no plain rule.

Now, the acts of Congress and regulations required that the inland rules be used by all vessels both foreign and domestic inside these lines.

There can be no doubt that the agencies entrusted with the enforcement of these laws commencing with the Secretary of the Treasury on up now to the coast guard did in fact enforced these laws and the Government doesn't deny that they did.

There can be no doubt that the inland rules of the road where in fact enforced inside these lines both on domestic vessels and foreign vessels and the Government doesn't deny that either.

And yet, that's not a single instance, there is not a single instance of any objection by any foreign nation or any foreign vessel to these lines.

Not only has there been toleration but we feel that there's been a complete acquiescence but this isn't the end of the story.

Louisiana has exercised sovereignty within these waters.

Beginning in 1870, Louisiana enacted extensive statute regulating the oyster, fishing and shrimping industry.

All of these statutes have been applied and interpreted as applying to the inland waters of Louisiana including East Bay.

Oyster leases have been granted in East Bay.

Some of the shrimp statutes specifically mentioned East Bay.

Arrests have been made in east for the violation of the shrimping regulations.

The Louisiana Department of Wildlife and Fisheries patrolled East Bay in boats to enforce the regulations.

No questions have ever been raised not by the United States; no foreign vessel, not even the persons who were arrested.

Other control has also been exercised by the local officials of other activities and large oil field is located at East Bay and therein lies the problem.

Part of this oil field extends in to the part that the Government says this is now high seas.

This map is prepared by Shell Oil Company showing its facilities in this area.

It's obvious that the congestion virtually precludes (Voice Overlap) -- any foreign vessels.

Yes sir, that's your map number 16.

Justice Byron R. White: Thank you.

Mr. J. B. Miller: But Louisiana is not the only one has considered this bay to be inland waters.

The United States has always considered it to be inland waters and in 1940 when the Census Bureau undertook the re-measurement of the United States, they included all of East Bay as the inland waters of America.

This map shows the location of the line that was drawn by the Census Bureau in 1940.

Now, the Government we exercise no sovereignty, yet we control navigation so there's no freedom of navigation.

We control fishing, there's no freedom of fishing.

We control pipelines and air flight in this bay also.

This country exercise -- has exercised complete sovereignty over East Bay and no nation has ever raised any objection.

They've abided by laws in East Bay and all of the conditions for historic waters have been met not only from classic sense of sovereignty but also from a legal sense of geography.

Justice Hugo L. Black: Is that the rule of the United States?

We've had fishing laws, shrimping laws, and oyster laws.

All types of conservation laws and the Department of Wildlife and Fisheries have regularly patrolled these bays.

It's one of the best fishing bays in the Gulf of Mexico because of the Mississippi River occurred the sediment and the fish just flock in there.

Justice Byron R. White: How about the oil?

Mr. J. B. Miller: The Shell Oil Company map shows that oil -- this is what started the whole (Voice Overlap) --

Justice Byron R. White: Does exercise of control over the bottom of the sea qualifies an act of sovereignty?

Mr. J. B. Miller: Not now.

Not now, Your Honor, because under the Convention on the high seas this is granted to all nations.

But --

Justice Abe Fortas: Well, there any --

Mr. J. B. Miller: -- before that happen it was, before the occurred it was.

Before the act -- before Mr. Truman's proclamation and the Continental Shell Act than any Act that Louisiana performed over this bay was an act of sovereignty and we did grant leases and that's what started this whole litigation.

Justice Abe Fortas: Excuse me, Mr. Miller.

Now but that doesn't seem to be any difference fundamental -- the fundamental proposition in law between you and the Government and let us say both agree that East Bay has to be considered historic waters for this purpose if there has been an exercise of historically and exercise of sovereignty.

Mr. J. B. Miller: That's our contention, Your Honor.

Justice Abe Fortas: Well, doesn't --

Mr. J. B. Miller: The Government --

Justice Abe Fortas: -- the Government construe?

Mr. J. B. Miller: -- contends that we must have claimed ownership of this bay as part of the territory of this bay.

Justice Abe Fortas: Now, maybe that will tell us but that's not the way I read their brief.

But then they go on to say that; (a) that has to be an exercise of sovereignty by the National Government and (b) that there has been no such exercise of sovereignty by the National Government.

Mr. J. B. Miller: That is correct.

Justice Abe Fortas: Now, there is a perplexing -- may raise a perplexing question for us because it may not be just a question of law but it may be a question of fact, too.

Mr. J. B. Miller: Well, Your Honor --

Justice Abe Fortas: And the problem is one that my brother Harlan raised earlier which is whether we can decide this or whether we have -- there has to be a Master.

Mr. J. B. Miller: Your Honor, we think you can.

We think that the law presumes that these officials exercised, they had performed their duties and enforce the laws and the Government doesn't deny that they enforce the laws in navigation down there.

They do not deny that the navigation laws were in fact enforced.

Justice Abe Fortas: But you've cited a lot about other things here not only navigation laws which prove your case may not --

Mr. J. B. Miller: We can file in the record reports of arrest that had been made.

We filed in the record that oyster leases that have been made.

Maybe we should ask the Government what facts they dispute, I don't know.

My time is running out, I want to cover one more area before I quit and that's Caillou Bay which is in your map number 21.

Caillou Bay again serves as an example of the restrictive interpretation of the Government.

The Government says that islands may not be used to foreign bays and yet they used the same mass of islands which we used as the western part of Caillou Bay to form the adjoining Timbalier Bay.

But they say these islands can enclose bays.

These islands are separated from the mainland by one foot of water, one foot of water going to coast job.

The maximum depth of water in this bay is 7 feet and most of the bay is about 5 to 6 feet deep, but they say this is like Santa Barbara Channel.

They say this is the same thing the Santa Barbara Channel which this Court held not to be inland water.

To show the difference, this is a coast chart of Santa Barbara Channel.

We have reproduced Caillou Bay at the same scale as this coast chart and this is Caillou Bay.

It's a small I don't even think you can see it.

But this is Caillou Bay that the Government says it's like the Santa Barbara Channel.

The depth of water in Caillou Bay is 5 to 6 feet deep.

The depth of water in the Santa Barbara Channel is 2000 feet deep.

Now, this is a kind of water we're talking about in Louisiana.

We're talking about tons, we're not talking about 2000-foot seagoing channels even the Chapman Line, even the Chapman Line, in 1950 drawn by Secretary of the Interior Chapman enclosed East Bay.

As a result, it had never even -- not East Bay, I'm sorry Your Honor, Caillou Bay.

This bay has never been considered as being in dispute and no moneys have even been impounded, it was never regarded as being disputable.

And then the first Louisiana case, the Government conceded that all the waters located situated between the islands and the main lands are inland water because the islands are so situated as to enclose inland waters.

Now, they say Caillou Bay is part of the high seas six-foot water part of the high seas.

I want to mention the dredged channels.

Justice Byron R. White: Well, how did they -- for Caillou Bay they would just take three miles from around the island or three miles from the coast --

Mr. J. B. Miller: Three miles from the shore.

Justice Byron R. White: -- from the shore?

Mr. J. B. Miller: Three miles from shore.

Justice Byron R. White: And around the island?

Mr. J. B. Miller: Yes, sir.

They say islands may not be used under the Convention to (Voice Overlap) --

Justice Byron R. White: And that one foot water depth high seas.

No, it isn't the high seas, is it?

Mr. J. B. Miller: Well, fortunately it's within the three-mile limit but if it were not it would high seas.

Justice Byron R. White: Yes.

Mr. J. B. Miller: It's territorial sea.

Justice Byron R. White: Uh-huh.

Mr. J. B. Miller: Now, I've mentioned the dredged channels before as being necessary for this state and in every single port that we have in Louisiana including the port of New Orleans it's been necessary to dredged channels in order to reach that port even the Passes at the river silt up and no one -- and no boats can get in without dredged channels.

This is a dredged channel off the coast of, I believe, its channel of Calcasieu and Cameron Parish.

This dredged channel -- similar dredged channel was held to be inland waters in the case of a Delaware.

This was getting its channel in leading to New York Harbor in which the Court said, it's as much the inland waters as New York Harbor itself.

Article 8 of the Convention provides that the outer most permanent harbour works which form an integral part of the harbour system shall be regarded as forming part of the coastline.

These are permanent.

They're cut into the bid of a Gulf of Mexico.

The United States Government has spent over $300 million and all shores in Louisiana dredging these channels.

They currently spend money maintaining these channels and these are not mere buoy channels.

The earth dredged out of these channels as deposited on the bank of the cut in the form of a spoiled bank and it impedes navigation.

But without the channels no vessel could navigate beyond a rowboat or an outboard motorboat or some other small type of boat but they're not buoy.

These channels are marked by tremendous steel and concrete towers that are sunk in the bed of a Gulf of Mexico at over 60 feet tall.

They are truly represents the outermost permanent harbour works which formed an integral part of the harbour system of Louisiana and under Article 8 of the Convention.

They're part of the coastline.

That article doesn't -- the Government objects to these because they are submerged.

That article doesn't mention anything about being submerged.

It says permanent harbour works.

The Government says we can't measure them from a low water line.

The Convention doesn't say anything about measuring permanent harbour works from the low water line.

The Convention says if they are part of the harbour works, they are an integral part of the harbour system.

They are regarded as part of the coast to Louisiana.

One more factor I want to mention in its decree, the Government is asking that this Court limit the effect to this decision to the Chapman Line and yet, they are claiming Caillou Bay beyond the Chapman line.

We think this decree must settle the lands underneath navigable waters which will confirm to the states by the Submerged Lands Act.

Justice Byron R. White: Are you -- do you want to reserve that time or --

Mr. J. B. Miller: Yes sir, we need a rebuttal.

Rebuttal of Archibald Cox

Mr. Archibald Cox: Mr. Justice Black, may it please the Court.

I think it will be helpful in the beginning if I go back to the fundamental question in this case.

As we see it, the ultimate question is, where is the coastline of the United States located in the general area of Louisiana for the purposes of the Submerged Lands Act?

The exact location of the coastline is important because the Submerged Lands Act confirmed to each state, the title to the resources not only up to the coastline but also for three miles beyond.

And consequently while we're fighting about where the line is three miles beyond the coastline that is necessary determined by the location of the coastline itself and it's more convenient to talk directly about the location of the coastline.

Justice Potter Stewart: And you think of that as the coastline of the United States rather than the coastline of Louisiana, do you?

Mr. Archibald Cox: We say that the coastline for the purposes of the Submerged Lands Act means the coastline of the United States.

Yes, sir.

The two -- the two would be the same for all purposes that so far as I can think but we do mean for international purposes Justice Stewart and that's why I emphasize the coastline of the United States.

Now, Section 2 (c) of the Submerged Lands Act defines the coastline as the line of ordinary low water along the coast which is indirect contact with the open sea and the line marking the seaward limit of inland waters.

There's no dispute of course about first part of the definition in this case.

That is to say the low water marked along the coast where the coast is in contact with the open sea.

Although, Louisiana denies that their coast is ever in contact with the open sea.

The critical question then is about the second part of the definition in 2 (c) of the Submerged Lands Act whereas the line marking the seaward limit of inland waters.

In other words, what are the inland waters of Louisiana and where is their seaward limit.

Now, in answering this question, the first step is to determine where one finds the definition of inland waters.

Where one finds the standard that he applies to the physical features of this coast in order to find the inland waters.

Our view is that you find it in the convent -- Geneva Convention of 1961 defining the territorial sea and the adjacent waters.

Louisiana's answer is that you find it -- our first answer is that you find it in the regulations issued by the coastguard for the purpose of telling vessels where they are to follow the international rules in navigation and where they are to follow our own domestic inland rules of navigation.

The difference is our illustrator on this chart and also on the small charts which I believe the clerk has handed to each member of the Court.

The green area is the area that was confirmed to the United States by the decree entered late in 1965 a supplemental decree which was virtually by consent.

In other words, it is the area more than three miles from the coastguard line.

The red areas here, a little bit here and then a bit over here and another area in East Bay are the areas that were confirmed to Louisiana by the supplemental decree entered in late in 1965.

The pink area we concede goes to Louisiana, there's no dispute about it.

Consequently, one comes down on to the white area between green and the pink or red, this long strip in here, sometimes 20 miles of the physical coast.

The dispute is over that area.

Justice Byron R. White: Mr. Cox, did the red used to be pink?

I mean, if it weren't red, would it be pink?

Mr. Archibald Cox: Not in all cases.

It became red for several reasons.

It became red partly because in more accurate surveys than had been available at the time the interim agreement was drawn -- drawn up and it became red partly as a result of the decision of this Court in the California case which is you will recall rejected some of our claims with respect to the meaning of inland waters.

This is particularly true if my memory is right in the Atchafalaya Bay area.

Justice Byron R. White: To that extent then it would be -- would've been pink even if it weren't red?

Mr. Archibald Cox: No, it wouldn't be white if it were not red.

It would still be in dispute.

Justice Byron R. White: I thought the pink -- is this what you concede?

Mr. Archibald Cox: The pink area we now concede.

Justice Byron R. White: Yes.

As being with inland waters?

Mr. Archibald Cox: Yes.

Oh!

It's being -- I'm sorry.

We concede it belongs to Louisiana --

Justice Byron R. White: That's right.

Mr. Archibald Cox: -- it's the territorial sea.

Justice Byron R. White: That's right.

Mr. Archibald Cox: It is not.

Justice Byron R. White: Oh, I agree with that.

Justice Potter Stewart: As being within three miles from inland waters?

Mr. Archibald Cox: It's within three miles from the coastline.

Justice Potter Stewart: That's right.

Mr. Archibald Cox: In some instances from inland waters, in some instances from the shore, yes.

This map in other words Justice White is a map that deals in terms of boundaries not in terms of the coastline.

Now, I should make one other point about the map.

Back in the pink line, there is a lot of white area which is of course water.

That goes to Louisiana too because it's never been any dispute about it.

There've been no funds impounded from it and consequently we didn't think it's worth coloring on the map.

Justice William J. Brennan: Where is that one, Mr. Cox?

Mr. Archibald Cox: These white areas.

Justice William J. Brennan: Oh, yes.

Thank you.

Mr. Archibald Cox: Those clearly are inland waters.

I didn't want the fact that they were white to mislead the Court.

Now, so the first issue in the case deals with the entire white area outside the pink and red lines and these were about the coastguard line will determine that.

Justice William J. Brennan: Now, is that line on the top of the green area Mr. Cox, is that the coastguard line?

Mr. Archibald Cox: No, the coastguard line doesn't really -- hardly shows.

If you look sharp you'll see about three quarters of an inch inside the yellow line.

Justice William J. Brennan: Yes.

Mr. Archibald Cox: That's three miles from that dotted line as the coastguard line.

I come next I think into answering the question that was bothering you Justice Brennan.

The second part of the case that is assuming that we are right, that the coastguard line is not controlling.

The second part of the case then concerns -- we would then get the white area outside the blue line and that would be clear.

The second part of the case involves the area inside (Voice Overlap) between it and the pink and red.

In other words, Louisiana says they own out to that blue line under the Submerged Lands Act, under their alternative potentials whereas we say they don't go beyond what is pink or red.

Justice Byron R. White: This to that line is their application of the Geneva --

Mr. Archibald Cox: With their variance on the Geneva Convention, yes.

So that in the second part of the case what you have is a series of disputes about specific areas within the same years coming out then again this area here again here Caillou Bay, another application here get a ground each of these East Bay and so on.

Now, there are series of specific disputes about the meaning and application of the Convention and really have to be worked through one by one of those certain common questions applied.

Now, I planned to devote the first part of my argument to the question of the coastguard line.

Justice Potter Stewart: As I understand it Mr. Cox the -- looking at your chart the line which you say is the seaward limit of the seaward limit of Louisiana's primary claim that line is -- is that line a line parallel to the coastguard line three miles distance?

Mr. Archibald Cox: Yes, in other words, the seaward limit in their primary claim is the orange.

Justice Potter Stewart: Yes.

Mr. Archibald Cox: The edge of the green.

Justice Potter Stewart: And that line is a line parallel to the coastguard line three miles --

Mr. Archibald Cox: Three miles, --

Justice Potter Stewart: -- southerly?

Mr. Archibald Cox: -- precisely.

Justice Potter Stewart: Yes.

Justice William J. Brennan: But just so I'm clear again Mr. Cox, if that position does not prevail then what we're concerned with there only those white segments inside the heavy blue line.

Mr. Archibald Cox: That's correct.

Justice William J. Brennan: From one end to the other of the chart, right?

Mr. Archibald Cox: That's correct.

Justice William J. Brennan: Thank you.

Mr. Archibald Cox: So these are, maybe tremendous is too strong, but they're very large distance is these 27 miles.

Justice William J. Brennan: Yes.

Mr. Archibald Cox: They say that the sea never comes within 20 miles -- 20 miles at spot, 15, 10 and others of the shore of Louisiana.

As I say, I plan to deal first with the coastguard line and then second was that of the more specific disputes as I have tied to.

With respect to the coastguard line, we urge first that United States against California should be decisive.

There, the Court held that Congress used the terms “coastline” and “inland waters” in the international sense as in it had used to be in prior decisions of this Court notably the first California case.

Second, that Congress intended the Court to fill out the meaning of inland waters in coastline by choosing the best in those practicable definitions.

And then third, the Court held that the best and most practical definition where those in the Geneva Convention ratified by the United States in 1961.

Now, those three rulings seem to us dispositive of the issue of these white areas.

Louisiana argues as I understand it that the decision in the California case was merely sort of permissive, a state could assert a right out to the line fixed under the Convention or it could if it wish assert a line out under some other set of rules going beyond the Convention.

That seems to us to be inconsistent of both with what the Court said in the California case and also inconsistent with what it actually did in its decree.

In the California case, on page 165 of 381 U.S., the Court said it is our opinion that we best fulfill our responsibility by giving content to the words which Congress implied that's of course implied in the Submerged Lands Act.

By imply -- adopting the best and most workable definitions available the Convention provides such definitions.

We adopt them for the purposes of the Submerged Lands Act then the Court went on to point out, this establishes a single coastline both for the fenestration of the Submerged Lands Act in the conduct of our future relation.

This certainly doesn't sound permissive.

It establishes a single coastline where you adopt this definition.

It doesn't sound as if they were to be used on some occasions and then not on others if the state happened to prefer.

And of course the Court later on its opinion rejected California's claim to Santa Monica Bay and to San Luis Obispo Bay on the ground that they did not conform to the requirements of the Convention.

So, that it applied it both where it heard us as some of you will recall in Monterey Bay and it applied the Convention too where it heard California as in San Luis Obispo Bay and Santa Monica Bay.

When it came to the decree which the Court entered following the decision in the California case, it being on the original document, the decree were cited as used here in inland waters means I emphasized the “means”, means what is landward of the baseline of the territorial sea which are now recognized as internal waters of the United States under the Convention on the territorial sea and the contiguous zone.

The word “means” surely suggests that there were no alternatives.

Furthermore, on the next paragraph of the decree where the Court listed certain waters that it adjudicated to be inland waters of California.

It used the word that the inland waters of California include specific areas that were in litigation in that case.

Obviously, it didn't wish to prejudge California's claim as to areas we didn't talk about in that case are belonged to northern part of the coast.

I think again the contrast between “includes” in this paragraph and “means” in the other paragraph emphasizes that the word “means” when adopting a general formula was deliberate and indeed at least the “includes” point was pointed out in the supplemental briefs of the decree.

Louisiana's other argument as I understand it is that United States against California does not apply because her coast has unique features.

Of course the characteristics of all the coasts in states are in some degree peculiar.

The Alaska coast is entirely unlike the North Carolina coast or the Maine coast is entirely unlike the Louisiana coast, Connecticut coastline would be quite different from Oregon's and so forth.

If one said that a state may get out from under the Convention simply by calling attention to particular characteristics, then every state's coastline is drawn off with litigation.

The very purpose of the California case to have the same coastline for international purposes and for the purposes of the Submerged Lands Act would be defeated and the Court and the Congress indirectly, I suggest, would be put in the position of playing favorites among the states as it used the Convention rules in one case and some other set of rule and another.

So, we think as I say that the California decision is controlling.

I should in that connection mention once more point, there are coastguard lines.

There are some of the bays in California was not along the whole coast as there is here in Louisiana.

Neither party in the California case thought had appropriate to invoke those lines.

They might've been invoked on both parties thought that they were irrelevant and we so stated to the Court as I remember it during oral argument mentioning the existence of the lines.

Moving along, --

Justice Hugo L. Black: Had there ever been any complete line or coastline drawn there?

Mr. Archibald Cox: No.

No and of course Mr. Justice Black, there never was any complete coastline drawn in Louisiana until after the Submerged Lands Act was passed.

Alright, the line has vary from time to time at some times it is right along the east side of the delta here down on the east side of the delta.

Justice Hugo L. Black: Who draw it then?

Mr. Archibald Cox: It was either, to begin with the Secretary of the Treasury, one states the Bureau of Navigation, and ultimately it came to the coastguard.

But this whole expands here that they now rely on wasn't drawn until after the Submerged Lands Act was adopted.

It didn't exist at the time the Submerged Lands Act was passed.

Indeed, at the time the Submerged Lands Act has passed, Louisiana's chart didn't mention that.

The line didn't even include this bay.

It ran a little bit up here down around the Chandeleur Island and then down roughly where the edge of the green is now, it isn't precise but it was roughly there.

And that was the only line from 1935 until 1953 appeared of almost 20 years according to our study of the record.

So, that the line Louisiana now is invoking was promulgated after the Submerged Lands Act was passed.

Justice Hugo L. Black: Was it drawn under the fifth of 1895 statute under those --

Mr. Archibald Cox: Under the 1895 statute, yes Mr. Justice.

Justice Hugo L. Black: Imposed to anyone?

That controlled that even then --

Mr. Archibald Cox: That with changes due to the re-governmental reorganization but it was basically the 1895 statute.

Now, we say that even as an original question for getting the California case thereon that the coastguard line would be utterly unacceptable as the definition of inland waters for the purposes of the Submerged Lands Act.

In order to put the two in proper relation, I think it's important that I go back and give a little bit of explanation of the history of the legislation dealing with the coastguard line and the various lines that have been promulgated from time to time under that legislation.

Justice John M. Harlan: Can I ask you a question first?

I can't remember, was there any reference to the coastguard line in the legislative history of the Submerged Lands Act?

Mr. Archibald Cox: To a few very brief references, yes.

I can elaborate from now or do it a minute later after I have -- I have it firmly in mind to refer the Court to.

Justice John M. Harlan: Alright.

Mr. Archibald Cox: In 1864, Congress enacted a statute later incorporated from the revised statutes that promulgated certain rules of the road navigation rules for all United States vessels anyone the kind of statute that Justice Fortas referred to applicable earlier, applicable to vessels sailing the high seas.

And this applied to both naval vessels and to the merchant marine.

In the 1880's, there were series of international conferences on rules of navigation and they came out not with the treaty but with recommendations to the nations that participated in.

In 1890, Congress enacted a new statute which required all U.S. vessels upon the high seas and in all waters connected therewith navigable by seagoing vessels to follow the new international rules.

That was to take effect some years later and in the end of all it became apparent that there was going to be some confusion because the old statute adopting the inland rules still applied somewhere and the new statute still apply to some vessels somewhere.

In 1895, having been advised to this problem but Congress enacted the statute that we're talking about it appears on pages 150 and 151 of the Government's brief.

It said that the old 1864 rules, the inland rules should be followed on inland waters and then it went on in Section 2 and the power of the Secretary of the Treasury and that's the authority that it is comes down to the Commandant of the coastguard, empowered him from time to time to designate and define by suitable bearings or ranges with lighthouses, light vessels, buoys or coast objects the lines dividing the high seas from rivers, harbors and inland waters.

The title of the --

Justice Hugo L. Black: What does that mean?

Section 2.

Mr. Archibald Cox: What it means that the Secretary later the Commandant of the coastguard is to provide, is to define where the rules, inland rules are to apply and where the international rules are to apply.

Justice Hugo L. Black: Why isn't that binding?

Mr. Archibald Cox: I think that his or his definition is binding for the purposes of the statute to be.

Justice Hugo L. Black: Purpose of what?

Mr. Archibald Cox: Binding for the purposes of the statute, binding for the purposes of navigational rule.

Justice Hugo L. Black: Just rules?

Mr. Archibald Cox: Just rules, yes.

Justice Hugo L. Black: But it was to mark the boundary between the inland waters and the sea?

Mr. Archibald Cox: It was to be done for a specific purpose as provided in the title of the act on page 150, an act to adopt special rules for the navigation of rivers, harbors, inland waters of the United States and that was the only purpose ever explain.

Justice Hugo L. Black: Well that -- I don't quite understand why that is not a line.

Mr. Archibald Cox: Well, it certainly is a line for the purposes of this Act.

Justice Hugo L. Black: Navigation?

Mr. Archibald Cox: For the purposes of navigation, yes.

But it wasn't --

Justice Hugo L. Black: But why would it mark a boundary that's not the right boundary?

Mr. Archibald Cox: Well, I think two points and I'm going to develop them in a moment Justice Black --

Justice Hugo L. Black: I'm sorry.

Mr. Archibald Cox: -- at considerably more length.

Justice Hugo L. Black: That's alright you can --

Mr. Archibald Cox: No, I'd be happy to indicate.

Justice Hugo L. Black: Yes.

Mr. Archibald Cox: First, we think that it is most implausible for reasons that I will state to suppose that this Act authorize the Secretary of the Treasury to define the territorial limits of the United States for international purposes.

Second we say, even if the Act should be construed as having told in to lay out these lines in terms of where our boundary for international purposes was.

He finally has never done it, he finally has never purported to do it, he finally has never tried to do it and we say consequently he hasn't done it.

Justice Hugo L. Black: But what was this line?

Mr. Archibald Cox: This line was a line like which the Secretary thought and later the Commandant of the coastguard thought would be a good line to mark the place where you shift it from the international rules to the inland rules.

And he had said so over and over again that that was the only thing he was doing.

Justice Hugo L. Black: Where do you see that?

Mr. Archibald Cox: The history is covered on -- beginning at page 26 of our brief and running on --

Justice Hugo L. Black: The same brief?

Mr. Archibald Cox: Yes, sir.

And running on to page 41.

Justice Hugo L. Black: Which part is it he makes the statement to which you just referred?

Mr. Archibald Cox: Well, it was first made by the coastguard in a publication in 1943 referred to on page 33 of our brief, toward the bottom of the page.

The coastguard admiralty law enforcement manual and that begins by explaining what is meant by inland waters and high seas in the international or territorial sense.

And then it goes on and says navigation rule.

Now, it was consider another line of demarcation.

Justice Potter Stewart: What page are you on?

Mr. Archibald Cox: I'm on page 33 of my brief.

Justice Potter Stewart: Thank you.

Mr. Archibald Cox: Now, let us consider another line of demarcation, something other than the line for international purposes.

As shown in chapter 5, there are different rules for navigation on the inland waters in the high seas but here we do not apply the previous definition but adopt a new one for a convenience.

Secretary of Commerce has fixed the series of lines and so forth.

Going over on page 34, quite obviously this artificial line does not truly separate the high seas from the inland waters of the United States.

It simply marks the area within which the inland rules apply and outside of which the international rules control.

Then, and you find this repeated in the coastguard publications over and over again.

I call attention to perhaps the most significant of all.

In 1953, when the Commandant for the first time promulgated any line along the part of the area from here to here, well, for the first time from here, he said, in putting out that regulation that it was drawn solely for purposes connected with navigation in shipping.

Justice Hugo L. Black: Is that page 34?

Mr. Archibald Cox: That's page 34.

And not to define, not for the purpose in defining federal and state boundaries nor to define or describe federal or state jurisdiction over navigable water.

Justice Potter Stewart: That was in year 1953?

Mr. Archibald Cox: That was in 1953.

Justice Potter Stewart: Before or after the enactment of the Submerged Lands Act?

Mr. Archibald Cox: That was after the enactment of the Submerged Lands Act and in the instrument drawing this line which you will recall was drawn after the enactment of the Submerged Lands Act.

Justice Potter Stewart: So that this partially explain the disclaimer, wouldn't it?

Mr. Archibald Cox: Well, except that it was consistent with the disclaimers that have been stated ever since the very beginning Justice Stewart.

Let me refer to one more illustration.

Justice Hugo L. Black: What is the first one in your brief?

Mr. Archibald Cox: The first explicit disclaimer and I'll indicate what I mean by explicit in a few minutes.

The first explicit disclaimer that we have reference to came from the Assistant Secretary of State and it's quoted on page 38 of our brief.

Justice Hugo L. Black: Was that before or after the Act?

Mr. Archibald Cox: Oh!

This was back in the 1920's excuse me I should've stated.

Justice Hugo L. Black: That was the Secretary of State?

Mr. Archibald Cox: That was the Assistant Secretary of State and the circumstances were these, the Norwegian Government was putting together materials for the purpose of trying before the International Court of the famous Norwegian fisheries case.

So, they rode around the world asking everyone to provide evidence with respect to -- of where he in that country defined its territorial boundaries.

And the Secretary of State circulated the departments and collected everything.

They collected among other things from the Treasury Department references to where the various coastguard lines.

And he explained in the letter, I don't quote it off but he explained in part of it, the different departments had adopted different rules for the purposes in the United States and sent the coastguard regulations among them and then after that he went on and said and this is the part I rely on particularly.

It should be understood that the foregoing lines do not represent territorial boundaries but are for navigational purposes to indicate where the inland rules begin and the international rules seize to apply but there again there's a clear recognition of the very limited purpose of these definitions under the Act of 1895.

Justice Potter Stewart: Well, what's the authority of the United States to proscribe those inland rules on the -- in the territorial within that coastguard lines what's this if it's -- there really isn't of territorial waters, what is the authority?

Mr. Archibald Cox: Well, I think that there is some question whether they are valid within that area.

The coastguard takes the position that they are valid even though that is not inland waters and in some part of course is not territorial sea.

Justice Potter Stewart: But your position would raise that question.

Mr. Archibald Cox: It raises that question, I would think if the Court would not pass judgment upon it or that being answer in two steps.

First, we do think it most unlikely that the 1895 statute was ever intended to give the Secretary of the Treasury a power to fix the territorial limits of the United States.

It just seems inherently impossible that in a little act dealing with navigation, a section would've been put in the only explanation was that it was done at the request in shipping interest in New York Harbor and that it would be for this limited purpose.

We just think inherently impossible that Congress would have said the Secretary has now fixed the territorial limits of the United States.

Justice Hugo L. Black: Why is that strange?

Mr. Archibald Cox: Well, I think it is --

Justice Hugo L. Black: Doesn't the Government have to act through somebody?

Mr. Archibald Cox: Yes, but it seems to me strange first that it would've been given to the Secretary of the Treasury.

Second, that it was strange that it would be given simply in an act entitled, an act to fix the rules of navigation.

Justice Hugo L. Black: Secretary of Treasury has the coastguard under his --

Mr. Archibald Cox: Yes, but of course the international -- questions of international law that determine the territorial boundaries of the United States are primarily under the Department of State.

I think that it is quite likely and then there's one more point about the Act.

Of course it provides that the Secretary shall do it, shall issue these regulations from time to time.

This doesn't sound like fixing territorial boundaries for international purposes.

You don't make them fix territorial boundaries for international purposes from time to time.

Justice Hugo L. Black: Why don't we, didn't they do it with reference to the 45-mile limit and with reference to the cut in the west?

Mr. Archibald Cox: I'm afraid I don't understand Your Honors references.

Justice Hugo L. Black: (Voice Overlap) during the Truman time, he has said a proclamation on some.

Mr. Archibald Cox: Well we asserted our jurisdiction over the resources.

We didn't purport to change the boundaries in terms of the freedom of the seas, as I understand it.

We said that we were entitled of the resources on the continental shelf but we didn't purport to change our boundaries in reference to the high seas.

Justice Hugo L. Black: Well, that interfere with it, didn't it or that have been reform if is asserting the authority over it.

Mr. Archibald Cox: But we don't -- we were asserting authority under it and I suppose to structures that came up my interfere with navigation although there's always been a privilege to a restructures in the high seas for lighthouses, and other things of that kind without there becoming part of the territory of the United States.

That in any event today is covered by International Convention.

But let's -- it's quite possible I think well then what was contemplated immediately was that the Secretary of the Treasury would be guided by the territorial boundaries and that he was instructed for the convenience of navigation not to fix them but to find them.

But I suggest two different things, one is to apply the international rules and translate them into buoys, lighthouses and a like, and the other thing is to determine.

But a point of fact as I have suggested whatever the original intention was neither the Secretary of the Treasury nor anyone else has ever done this in terms of the International law.

From the very beginning, this we'd elaborate in our brief, the rules have been laid down in ways that do not conform either of this country or any other countries conceptions of international law.

They run to lighthouses, they take in large areas especially of the main coast from the beginning or Charleston Harbor in South Carolina which we're not conceivably inland waters under international law.

Justice Abe Fortas: Have we asserted as the United States asserted jurisdiction or authority over those waters, the white water shown there in any time other than for purposes of the application of inland navigational rules?

Mr. Archibald Cox: That on the -- no and of course we've taken positions in international conference after international conference quite inconsistent without saying that this is international law.

Justice Abe Fortas: In other words, if let's say a ship of a foreign nation came within three miles of the edge of the light with the white joins the green later we would not claim that it was within United States territorial waters.

Mr. Archibald Cox: No.

Indeed, Mr. Justice so far as anyone knows we have never asserted as against any ship flying the flag of another nation nor applied in any admiralty procedure involving a ship of another nation.

Well, the inland rules because of the collision or sailing in this area, I don't -- I can't say that the coastguard both hasn't ever hailed to foreign vessel neither can anyone say that it can but so far as this goes it is a paper thing.

But --

Justice Abe Fortas: Now, let me make sure that I understand that.

What you're saying is that in that white area we have never attempted to enforce domestic regulations against foreign vessels?

Mr. Archibald Cox: So far as I know and of course and this is important on many aspects of the case.

Of course, as against our own nation there is under securities in Florida, a clear power to regulate fishing, shrimping, navigation rules or anything else.

Now, the --

Justice Potter Stewart: But of course that maybe before that, that ships of other nations observed these rules in that area.

Mr. Archibald Cox: Well, I take it they undoubtedly do and I take it that we have the power to ask them to do it and if they acquiescence, well then that's that.

Furthermore --

Justice Potter Stewart: All the charts -- all the charts in the chart row of any ship would show that the inland rules apply within that line.

Mr. Archibald Cox: They along the side of this line it says use inland rule.

Justice Potter Stewart: Exactly.

Mr. Archibald Cox: Yes.

Justice Potter Stewart: In every chart room of every ship no matter what (Voice Overlap) by sailing under would have charge indicating unanimous ships would comply.

Mr. Archibald Cox: And they no doubt do conform.

Now, there are two -- well, I'm just speaking about the status of the rules today.

First, I want to emphasize that under Louisiana's view and under any view of Justice White that the validity or effectiveness of these rules depends upon these big inland waters in the international sense.

They are plainly invalid today because the Geneva Convention as of today plainly fixes rules inconsistent with the inland rules.

I and that Convention which we have ratified and undoubtedly takes preceding over anything the coastguard has done.

So that the rules cannot be sustained today on the theory that they somehow are fixing the territorial boundaries of the United States in the international sense, they're bound to be invalid under that theory.

Justice Hugo L. Black: Suppose they are fixing and not in the international aspect?

Mr. Archibald Cox: Well, then --

Justice Hugo L. Black: With reference to the domestic aspect.

Mr. Archibald Cox: Well, but the question -- they are fixing what if they're to be limited for only domestic purposes that is to say they apply only to our vessels.

Justice Hugo L. Black: And so what's the boundary of the country?

Mr. Archibald Cox: But that is in the international question.

That's what the boundary of the country is an international question.

That's what one means by the boundary of the country and that is --

Justice Hugo L. Black: The final analysis, it depends on the force that a government can exercise to fix its own boundary, doesn't it?

Mr. Archibald Cox: That was the original historical derivation of the rule, yes.

The theory was that the three-mile limit was a cannon shot from shore.

Now, --

Justice Abe Fortas: Now really what were after is try to find out the intent of Congress, isn't it?

Mr. Archibald Cox: Yes.

Justice Abe Fortas: And all of these talk about the international rule as this as a means towards that end.

Mr. Archibald Cox: That's correct.

Justice Abe Fortas: The plus effect that we have decided the case in that subject.

Mr. Archibald Cox: You have decided the case on that subject.

Justice Abe Fortas: Yes.

Mr. Archibald Cox: It seems to me that the reasons behind it are very sound.

I just want to give one more answer to Justice White and then I will come directly to that point.

Alright, there are decisions, Justice White, particularly the English case of Indianapolis which suggest that a nation has the power to set a rules in navigation requirements of navigation for vessels approaching or leaving their ports and if that, I don't want to overstate that line, if that is sound law and the coastguard relies on it, as I understand it, then that would validate these rules simply as the requirements of navigation because for all practical purposes the only vessels coming in here are going to foreign vessels coming in here are going to be foreign vessels going to the ports of Louisiana.

Now, I come to the question raised by Justice Fortas, what about Section 2 (c) of the Submerged Lands Act.

We say that it cannot have meant the inland water line as laid down by the coastguard or the Secretary of the Treasury for number of reasons.

First, the evidence is very persuasive that the term was used in the international sentence in reference to a general body of international law.

This was the flavor of the debate.

There are specific references to the courts used of the term in the early California case where it clearly indicated that it referred to use it in the international sentence.

And there is specific legislative history which Justice Harlan asked me about earlier with respect to the coastguard line.

There was testimony from Leander Perez of the delta area and an Assistant Attorney General of Louisiana which referred to the coastguard line.

Remembering that time, this line did not exist.

Indeed, under the regulations that out East Bay wasn't even behind the coastguard line.

And this was referred too in the testimony pretty much I think in passing at, did I say hearings on the Submerged Lands Act, if I did I was wrong.

It was referred to two Congresses earlier at hearings on previous bills.

Then, the matter was brought up again during the hearings before the interior committee of the senate on the bills that became the Submerged Lands Act.

And Senator Anderson cut-in and said, well, we've been all through that and we found that that line won't help us.

Well, that was the end of the discussion.

I added of course that a number of reasons it might not help but what happened was that it affected very little in the coast.

And it seems to me that it is most unlikely that Congress intended to give some official then the coastguard power to draw the lines that would be decisive for the purposes of the Submerged Lands Act.

Mr. Justice Black, may it please the Court.

The core of our position with respect to the coastguard line comes down to these three sentences.

First, that when Congress spoke of the coastline or inland waters in the Submerged Lands Act it used those terms with reference to international law and the territorial boundaries of the United States.

Second, that whatever may be said about the original purposes of the Act of 1895 or the meaning of the original instructions to the Commandant of the coastguard or the Secretary of the Treasury that he has not for years defined a line in terms of international law or the territorial boundaries of the United States.

And consequently, the Submerged Lands Act was talking about one thing, the Secretary of the Treasury and the Commandant were talking about another thing, and that other thing is irrelevant for the purposes of this statute.

“Inland waters” isn't the word I might add that invariably must have one meaning.

Louisiana and the statute enacted in 1948 defined the term “inland waters” to cover only waters where the tide have been flowed and excluded all others from that.

We don't argue that's the meaning of inland waters for the purposes of Submerged Lands Act.

I simply show that this means that this term like others must be construed with reference to its context and what was intended to be done.

I move on therefore to the second part of the case to the areas behind the blue line which is Louisiana's outermost alternate plan and offshore of the red or pink which we concede to Louisiana.

Our position is that the status of those waters is to be determined by applying the Geneva Convention in a practical commonsense manner in accordance with its terms and that if something does not qualify as inland waters under the Convention that it is not inland waters for the purposes of the Submerged Lands Act and that this is true of all our coast and therefore specifically true of the coast of Louisiana.

Now, in that connection I think it's worth looking at the Geneva Convention and calling attention to a few things in support of my proposition that it's intended to be universal and exclusive.

And since we omitted to print the full text that may be fairer to use, the text is printed by Louisiana which is in the appendix, the third volume of their briefs beginning at page 127.

I would call the Court's attention first to Article 3 on page 128.

Limits of the territorial sea, except as otherwise provided in these articles, the normal baseline for measuring the breadth of the territorial sea is the low water line along the coast is marked on the large scale official chart.

So that unless one can bring himself within an exception elsewhere provided in these articles is low water -- is the coastline is the line along the coast, the low water line along the coast is marked on the large scale official chart.

I -- we're not this explicit that that is the line except is provided elsewhere in the articles.

Less any question arise, I should call attention to the word “normal” which it seems to us quite clear in this connection means the line according to rule, the line according to standard and not some word like “generally or ordinarily or usually.”

This is very clear from the history at one stage without attempting to quote exactly the predecessor of Article 3 did include words like “generally” and the word “normal” baseline was in the title.

Then for the specific and explained purpose of making it clear that there was no discretion except as provided in the Convention.

Those words “generally or usually” were strict and the explanation was given that the purpose of the Convention was to provide an exclusive uniform set of rules.

Alright, --

Justice Potter Stewart: You say that word “normal” doesn't mean more or less the same thing that generally speaking would mean.

Mr. Archibald Cox: Right.

I think it means according to standard, according to rule and I point out that this through many versions did not have normal in it.

The word “normal” was put in only by the drafting committee and only when it was decided to give up titles.

And for some reason it was put in that and I think it simply means the baseline according to rule.

It's in other words the drafting committee would've been authorized to make such a major exception.

Alright, now there are other articles that make it quite plain that the Convention was defining the territorial sea and contiguous zone in the coastline both inclusively and exclusively.

Justice Potter Stewart: Before you lay that, your submission is that the word -- that in Article 3 would have the same meaning as it does have if the word “normal” were not there at all.

Mr. Archibald Cox: Absolutely and I think the history shows that without any question.

The whole purpose of the Convention was to establish a uniform set of rules applicable to all nations.

Indeed, another incident that tends to show this Justice Stewart at one time there was an effort in the proprietary drafts to state what was international law and then new proposal separately, and it was decided that this should not be done because there wasn't enough agreement on what was international law, and that the only way to get rules eliminating everyone's discretion was to set them down in a treaty that everyone would adopt.

Another indication was pointed out this morning, this agreement, this treaty does not define the breadth of the territorial sea it leaves that to each nation.

And the draftsmen were very careful to avoid saying its three miles leaving anybody to claim more if he wanted to so as to leave the question what is the breadth of the territorial sea, of course, we have always taken the position that it's no more than three miles.

Article 7 as I say --

Justice Byron R. White: How about the -- how was the three league situation observed?

Mr. Archibald Cox: Well, we would --

Justice Byron R. White: That's in the question of Geneva (Inaudible).

Mr. Archibald Cox: Geneva just defines where it stops.

Justice Byron R. White: Do you say --

Mr. Archibald Cox: And it leaves it up -- excuse me.

Justice Byron R. White: (Inaudible)

Mr. Archibald Cox: That's true and I think that we would not recognize the Texas three leagues for international purpose.

We have to recognize them for rights in the continental shelf but not for international purposes.

Justice Byron R. White: You don't think that was a historic boundary or anything?

Mr. Archibald Cox: Well, it was history boundary of Texas as used in the Submerged Lands Act but of course it was found that Louisiana's history boundary did not go out three leagues.

Yes, but the --

Justice Byron R. White: Wouldn't the Geneva Convention (Inaudible)?

Mr. Archibald Cox: If the United States chose to say three leagues it would not be in some cases, it would not be in violation of the Geneva Convention.

Justice Byron R. White: Oh!

Neither?

Mr. Archibald Cox: Because it doesn't decide that.

Justice Byron R. White: That's the reason.

Mr. Archibald Cox: That's correct.

Justice Byron R. White: (Inaudible)

Mr. Archibald Cox: Yes, that's correct.

And what I was stating was not our interpretation of the Convention but what I understand the position of the State Department to be.

I was saying Article 7 not only defines a bay by inclusion but by exclusion.

Justice Potter Stewart: Could I just ask you with this, does Louisiana rely to any extent in any of the arguments on Article 4 that's the baseline method of setting (Voice Overlap)?

Mr. Archibald Cox: Well, they're certainly referred to baselines from time to time and I'm not sure whether they do or whether they don't I thought I heard Mr. Sachse yesterday that they didn't but as I read their brief they from time to time say that the coastguard line should be regarded as straight baseline.

Justice Potter Stewart: Well, has -- in the negotiations between United States and Louisiana, have any of the agreed upon locations of the coastline rested upon agreements under Article 4?

Mr. Archibald Cox: Oh no, because we have always assert and the State Department has always asserted that it is contrary to the policy of this Government to draw of straight baselines.

Justice Potter Stewart: You mean even where the Geneva Convention permits?

Mr. Archibald Cox: Permits, correct.

We've never drawn straight baselines also there are some places perhaps where we could.

Justice Potter Stewart: Yes, but it didn't permits it.

If it permits it why you can't rely on the Geneva Convention as precluding at the purposes of this lawsuit?

Mr. Archibald Cox: Yes, because the Geneva Convention says that a straight baseline shall be the boundary where it has been drawn in certain ways and as Justice Harlan said in the California case, the United States hasn't drawn any straight baselines.

And therefore, there are no straight baselines for the purposes of the Submerged Lands Act.

Justice William J. Brennan: That would come within the accept of Article III if one had been drawn according to --

Mr. Archibald Cox: If one had been drawn --

Justice Byron R. White: Yes, but Louisiana insisted that it should be drawn in this lawsuit perhaps.

Mr. Archibald Cox: Well, but it's not for the Court to settle that question of foreign policy whether we should or shouldn't exercise the permission.

If that something of if the nation does as a matter of foreign policy.

Justice Byron R. White: Well, isn't this lawsuit all about when the territorial sea starts?

Mr. Archibald Cox: Well, but unless yes.

But unless the Government elects to draw straight baselines, the territorial seas starts at the other points defined in the Geneva Convention if the Government does elect to draw a straight baseline that it starts there.

Justice Byron R. White: Well, do you say then that the United States as a litigant in this lawsuit has the option of precluding any result to Article 4?

Mr. Archibald Cox: I would say that the United States which is a litigant which is also concerned with its foreign policy has the option of deciding whether to draw a straight baseline.

This was adjudication.

Justice Byron R. White: So your answer is yes?

Your answer is yes that United States can just say we elect not to permit any resort Article 4 in this lawsuit?

Mr. Archibald Cox: Well, that's the effect of our position.

It isn't, we state something that is much more important than that.

It's been a foreign part of the foreign policy --

Justice Byron R. White: Well, that may be important but just in terms of this lawsuit that we're concerned with.

Mr. Archibald Cox: That's true but I suggest that if this Court should say that we elect to draw straight baselines that that would have a very important and unfortunate effect on the policy that the State Department has been consistently followed.

If the Court does it, the State Department will have to deliver that.

Justice Byron R. White: Well, that's -- that may be true, I just wondered as whether or not there was any issue in the lawsuit under Article 4, I take it there is not.

Mr. Archibald Cox: Well, I've tried to say I would honestly that I wasn't clear about Louisiana's position on that and I can't say that there is none.

We say that there is none.

Justice William J. Brennan: But as I understand it if -- if you understand it, Louisiana relies on for it's only in the suggestion that the coastguard line is base -- straight baseline?

Mr. Archibald Cox: Yes, I think they do make the suggestion that Justice White made it.

It slipped my mind that maybe the Court should draw some baselines which we object to for the reason I've stated.

Justice Byron R. White: And your answer is that is beyond the power of the Court?

Mr. Archibald Cox: Yes.

And I would further answer that the Court has already decided that in the California case.

I was --

Justice Byron R. White: When did it decide in the California case?

Mr. Archibald Cox: I don't have the language directly in front of me but there is a passage in Justice Harlan's opinion that recognizes that only the United States and apparently speaking in terms of the Executive Branch of the Government can draw straight baselines and it has elected to draw none and therefore since straight baselines were not applicable on the decision of that case.

Justice Byron R. White: I've got the opinion here, what page is that?

Justice Hugo L. Black: By the way, it shall only be Executive question?

Mr. Archibald Cox: Well, I thought he was referring to it of course it might refer to the Legislative Branch too.

Yes, I was but not the Judicial Branch.

Page 168 of 381 U.S.

Justice Byron R. White: Thanks very much.

Mr. Archibald Cox: I was arguing that the exclusive rules must be found within the convention that it is to solve the terms of what is the coastline of the United States for the purposes of the Submerged Lands Act.

I want to emphasize some of the implications of what I was saying so that can be no mistaken of.

First, I imply that arguments based on geological phenomena or economic uniqueness are irrelevant either in general or as applied to specific instances because the Convention that deals with one might call cartographic phenomena, the thing shown on the charts of merit and other considerations are irrelevant under it.

Second, I implied that the mere former theories of the United States with respect to international law, the rule as to bays or rule as to islands and so forth which we have from time to time advanced are no longer applicable because the matter has been frozen in the Convention and specifically Louisiana's arguments that under some rule espoused by the State Department at periods in our history before the Geneva Convention is simply irrelevant for the purposes of this case just as our theory with respect to Monterey Bay of the 10-mile bay that was held in the California case to be irrelevant because it was simply something that we had propounded prior at the time of the enactment of the Submerged Lands Act but was not embodied in the Convention.

Next, I specifically mean to imply the point I touched upon before that there is no basis for claiming straight baselines under Article 4 because neither the Congress nor the Executive Branch has ever promulgated straight baselines under Article 4.

Certainly, there has been none by the President or Department of State, the Commandant would hardly be the appropriate official but we don't --

Justice Hugo L. Black: Has he done it?

Mr. Archibald Cox: But he has not done it we say and we say that for several reasons.

First, when he put out his lines he expressly said he was not claiming anything for territorial purposes.

So, we can't have been promulgating straight baseline under Article 4.

Second, the line --

Justice Hugo L. Black: But whatever the purpose was has he outlined any straight line?

Mr. Archibald Cox: Well, he drew the line three miles in shore, this yellow line, for the purposes of the finding the rules where the -- which rules of road should apply, yes.

He certainly did that.

His line even if he had attempted to draw it as a straight baseline under Article 4 would be invalid for two reasons.

And the first is no one can argue that this hard can impose as deeply indented or cut into or has a realm of islands along it within the language of Article 4 which limits the places where you can draw straight baseline.

Second, Article 4 limits the points between which you can draw a straight baseline and they don't include buoys, light ships and rangers bearing an underwater shows and things of that kind.

So that it's clear again that he couldn't have done it even if he was trying and of course what he did quite plainly wasn't that effort.

The fourth thing that I mean to imply by saying that the Convention applies in these leagues exclusive standard is that it is a very sharp limitation on or both historic bays and the evidence that will constitute in historic bay.

First, I want to emphasize that Section 6 of Article 7 applies only to historic bays.

It doesn't speak of other historic waters.

It's historic bays and one therefore must have something in the nature of the bay before this exception would possible imply.

But the kinds of evidence that will be sufficient to constitute on historic bay are very limited by --

Justice William J. Brennan: Excuse me Mr. Cox.

If you don't mind to interrupt that argument, it's a new one I know but I noticed that Section 6 of Article 4 says, the coastal state must clearly indicate straight baselines on charts to which due publicity must be given.

How is that to be read?

Does that mean if there is a line it must be stated by the state that it is a straight baseline?

Mr. Archibald Cox: Well, I suppose that the state must assert, we are claiming this as our territory.

Justice William J. Brennan: (Voice Overlap) Not that that we are claiming that -- we are drawing this line as a straight baseline?

Mr. Archibald Cox: I would think that it was satisfied by saying we are drawing this line and claiming that all the waters behind it are our inland water.

But I think that it must make at least that the state that draws it is giving notice to all the world that it is claiming it as it waters and of course the state -- the coastguard has always indicated that we weren't claiming as our waters.

All that it is said is you should follow our inland rules asserted the limited purposes and not a claim I think it's our territorial sea.

Now, the other point I was going on to make was a that the kind of evidence that is necessary to show a bay to be in historic bay is limited to active assertions of jurisdiction doing something to somebody by the coastal state usually coupled with some kind of acquiescence by the others.

Justice Byron R. White: By coastal state you mean the nation?

Mr. Archibald Cox: I mean in the international sense and indeed we argue that in a state in our sentence one of the 50 states is not sufficient, but I don't have to rest on that point here anymore than we had to rest on it from the California case.

Because the evidence that Louisiana invokes here for the purposes of claiming historic bays rather plainly fails to meet the test of anybody actively asserting jurisdiction.

Certainly, the advancing of abstract theories of international law that other nations didn't accept that we're not settled international law without ever applying them to particular areas cannot be regarded as the necessary kind of assertion of jurisdiction to constitute in historic bay.

Even more clearly, old maps like a commerce department map to which you were referred this morning which were drawn for limited purposes do not constitute an assertion of jurisdiction as against other states in the international sense.

Statutes in Louisiana purporting to regulate the taking of shrimp or oysters or natural resources, I and ostensibly applicable in these waters are not sufficient as the Court held in the California case because they do not involved an actual as enforcement of jurisdiction against a foreign nation.

Now, Louisiana -- the only specific things Louisiana refers to anywhere.

Our series of criminal prosecution under some of their natural resources laws, there are three answers to those points.

First, so far as we know all of those offenses under Louisiana law may well have been committed within the territorial sea, the three-mile strip within the bay.

Some of them, one can tell for the records, where within that three-mile strip.

Second, all of the defendants so far as the instances they gave us were concerned were residence of Louisiana and therefore presumably citizens of Louisiana and under this Court's decision in (Inaudible) and Florida, Louisiana has the power to regulate their conduct on the high seas just as much as anywhere else.

And the third point I mentioned earlier and that is that what one of our 50 states does in our view is irrelevant.

Now, against the background of those generalizations, I'd like to take what time I can on some of the specific areas that are in controversy.

We're talking now about material between blue lines and the pink or red and I start at the west edge of Louisiana --

Justice William J. Brennan: Incidentally, Mr. Cox, did Louisiana argue that at least to the extent that what is exercise of national sovereignty is involved here surely the drawing of the coastguard represents such -- wasn't that?

Mr. Archibald Cox: Well, I think they did.

I would say that drawing of a line with the statement we are not exercising sovereignty, we are doing it for a limited purpose is not an acceptable assertion of jurisdiction because we're saying we're not asserting territorial jurisdiction over that.

Justice Byron R. White: Although you yourself indicate I gather that even this assertion was questionable.

Mr. Archibald Cox: I indicated that the question of whether we could enforce.

Justice Byron R. White: So was an assertion of something I mean of some significance --

Mr. Archibald Cox: Well, of course we never did assert it and actually apply it and as a pronouncement we almost limit.

So that what it is, I insists or suggests isn't anything more that it purports to be of which was his statement?

We want and perhaps the statement we will require you to follow our inland rules.

Now, this was never challenged, there's been no violation that was tested in the Court so there was occasion in admiralty (Voice Overlap) --

Justice William J. Brennan: Well, why wouldn't -- we will require you to follow, is that a self-assertion?

Mr. Archibald Cox: Well, it's not if limited to the mere statement we will require you to follow and it was never applied to anyone.

I would think that was not an adequate assertion of jurisdiction because there's been no bringing it there.

Actually, so far as I can see the only error where this come into play that is that East Bay because that's the only thing that could be call it bay and that is why I don't mean a strict bay but a bay in loose sense and this area certainly can never be called a historic bay.

There's no bay about that and Article 7 paragraph 6 is limited to bay.

Alright, I was about to start at the west end of the coastline and take the segment which runs from Sabine Pass here to take their point which is on the coast about here.

You'll know that both that our line and Louisiana's line when it applies the Convention follows the coast except for these fingers reaching out, curiously they even reach out into the area that's already been adjudicated to be ours.

Those are the inland -- dredged channels to which Mr. Miller referred this morning and which Louisiana claims our part of her coast under the Convention.

These channels appeared down here at Sabine lake in Calcasieu Pass and that fresh water Bayou, but there are other points along the coast where such channels exist and consequently this is a recurrent problem and it seemed well to deal with it at the outset.

Now, first I must point out that Louisiana's statement on page 336 of the brief that the congressional history of the Submerged Lands Act clearly shows that both the Senate and House of Representatives considered dredged ship channels to be part of the inland waters of the United States is not accurate.

The facts are these, the history does show that at one stage the Senate Committee on interior and insular affairs considered and there was in the Bill a definition of inland waters which include all estuaries, ports, harbors, bays, channels, straights, historic bays, and sounds whether this included dredged channels or not is anyone's guess.

My guess would be that it use channels in the sense of the English Channel or some other body of water between an island and the mainland rather than something just leading out of perhaps 20 miles into the ocean but I can't say that I'm right but it certainly doesn't give I'm as right as they are.

The next thing that is clear is that this language was deliberately struck out of the Bill in an effort to leave the definition of inland waters entirely to Court.

So that no one can infer that there was any intention to include these errors and we come to consider the question therefore like all other questions in terms of the Geneva Convention.

The question turns on Article 3 and 8 of the Convention.

Article 3, we noted before except for where other was provided in these articles the normal baseline for measuring the breadth of the territorial sea is the low water line along the coast.

Now, I ask you keeping that in mind the low water line along the coast to jump to Article 8 which begins at the very bottom of page 106 in the Louisiana appendix for the purpose of delimiting the territorial sea, the outermost permanent harbour works which form an integral part of the harbour system shall be regarded as forming part of the coast.

So that the question we have asked ourselves is whether a dredged channel leading out from a port is a part of the permanent harbour works within the meaning of Article 8.

We submit that such a channel even though marked by aids to navigation of buoys and some places, day beacons, lighthouses and alike is not part of the permanent harbour works that the term harbour works refers only to raise installations like piers and jetties and breakwaters which also a man-made are physical part of the coast.

I rest that conclusion on several things.

The first place I don't think just a matter of the ordinary use of words what would normally think of a dredged channel or a channel that's not been dredged that leads out from a part was covered by a river as part of the harbour works it seems to me an extraordinary use.

Justice Abe Fortas: What about some steel towers, the way were shown?

Mr. Archibald Cox: I would say that those were like any lighthouse on a reef of shore and both prior decisions show that those are not part of our territory and the discussion was in the Convention shows that a lighthouse was not treated to be treated as part of the territory of the literal state unless it was fixed to the shore.

Justice Abe Fortas: Well, Mr. Miller says that the material that is dredged up is pile on the sides of the channel.

Mr. Archibald Cox: They never gets up above the water or if it does it isn't connected to the coast.

It's all underwater.

Justice Abe Fortas: It is not connected to the coast?

Mr. Archibald Cox: Well, when I say coast, I mean land or physical structures above water.

I suppose that if you were underneath you could find some connection.

But it's by coast we mean the land above water and this is not above water.

Justice Abe Fortas: Point of view was making as I understood suggested that this is just like a jetty instead of being made of steel or a pier instead of being made of steel or wood or whatnot it's made of earth and it has on that these high towers.

Mr. Archibald Cox: Well, if these were banks which, and that by banks I mean that something that was consistently continuously above the water reaching out from the coast then we would have a harder time.

But they aren't (Voice Overlap) I think --

Justice Abe Fortas: Excuse me, how do you think we ought to decide that Mr. Cox?

Mr. Archibald Cox: How do I think you would, sir?

Justice Abe Fortas: What do you think we ought to know about it I mean say, I haven't seen these and the Court has hasn't seen them and we don't have an evidentiary record before us, do we?

Mr. Archibald Cox: I don't think anyone contends that there's banks that run continuously above the sea level.

Justice Abe Fortas: Perhaps, I misunderstood Mr. Miller on that.

Mr. Archibald Cox: But certainly I don't understand Mr. Miller to be saying that, I am prepared to assert that they do not.

I'm not prepared to assert that some little pile of earth doesn't occasionally get up.

Justice Abe Fortas: You mean we are to decide it for instance on the basis of a general proposition of law that unless these mounts show up above the water they don't fit within the definition that they do.

Mr. Archibald Cox: I think you should say that an area of water is not to be assimilated under Article 7 to something that is spoken of as permanent harbour works performing part of the coast because the coast means in the convention and in usage in this area something above water if the notion was to make these water areas part of the inland waters.

The place to have dealt with that was in the sections on bays or inland waters, the most likely place to have dealt with it would be in the area of roadsteads because there the Convention, this is in the Article 9.

There, the Convention was dealing with areas of water of the coast in the sense there's something above the land.

And the Convention said that while we will make this part of the territorial sea, they didn't even make some inland waters.

We make them part of the territorial sea even though they lie more than three miles of shore and it seems to me that if there had been any intention to treat these areas of water with their lighthouses, towers, the distant points along them as belonging somehow to the literal state that that was the place to have done it.

Now, there was a proposal to make buoyed channels, didn't say anything about whether they were dredged or not.

To make buoyed channels, I gave them the same status as roadsteads and the International Law Commission rejected that which we think while not conclusive points in the direction of a showing and confirming the inference that I would otherwise draw that these water areas were not assimilated to something that it is above water.

Justice Abe Fortas: I thought the question was whether this was an outermost permanent harbor work forming an integral part of the harbour system?

Mr. Archibald Cox: Well, but one finds Article 8 saying that that shall be regarded as forming part of the coast.

Now I suggest that treating it as part of the coast strongly suggest that the draftsman had in mind things above the water.

Otherwise, it would've been extra ordinary to say that something that is nothing but a water area shall be treated as if it were something out of what.

That doesn't seem to being an exceedingly odd way to come out and the history I refer to I suggest confirms it.

Justice Byron R. White: But the structures along those dredged channels are anchored in the bottom line.

Mr. Archibald Cox: There are -- there are lights that go out without halfway.

Justice Byron R. White: These aren't just buoys?

Mr. Archibald Cox: Some are buoys, some are tripods.

The water isn't very deep.

They're not connected to one another.

They're just like to many lights and fixed buoys or fixed lights along the New England coast.

Justice Byron R. White: Every hundred yards there was a structure anchored in the bottom of the ocean, you would say that still wouldn't suffice unless they we're connected above the water?

Mr. Archibald Cox: Unless they were somehow connected above the water.

I don't think there is anything like as frequent as the hundred yards and they are essentially we say like many aids to navigations that nations have put in the high seas maintain lighthouses, they have certain privilege --

Justice William J. Brennan: Would be a harbor at either place without the dredge?

Would there be a harbor at either place without the dredge channel?

Mr. Archibald Cox: Oh yes.

Well, it would be very hard for other -- for vessels of any size to get into that harbor I presumably there might still be a harbor.

There certainly would be inland waters up in this area.

Justice William J. Brennan: But I take it they were built to make possible in each instance a harbor at the (Voice Overlap).

Mr. Archibald Cox: Well, I think I would say they were built to give vessels of greater draft that could previously get in access to the harbor like other dredging.

Justice William J. Brennan: Well, to the extent as the harbour system at all, it surely an integral part of it, aren't they?

Mr. Archibald Cox: I would say harbour system means fixed structures above the water.

I don't -- for one thing remember we're talking about something there can be a low water line on and you can't have a low water line out an area sticking way out here.

It's a physical impossibility.

Justice John M. Harlan: I'd like to ask you Mr. Cox before you go on.

(Inaudible)

Mr. Archibald Cox: I thought a great deal about that Justice Harlan and I'd like to divide my answer into several parts always directing myself I think to your question.

First, it's entirely clear to me that the initial issue or the effect of the coastguard line should be resolve by the Court now.

Second, there a very considerable number of other issues which can't be elucidated by any further factual evidence and I think those should be decided by the Court now.

Also, I recognized that it might be of some aid to the Court or to have an experience Master and expert Master go through them and we know them out.

But despite that, I am very sure they would all be back here with as long brief and much the same argument if we all live long enough that the Court would be here and they would be back far it.

Justice William J. Brennan: Well, you seem to have about 23 questions.

Mr. Archibald Cox: Yes.

Justice William J. Brennan: You want us to cite all of them?

Mr. Archibald Cox: Well I -- the reason I was going to say as against the advantages of sending it to a Master from the Court's point of view in terms of the total administration of justice if this case went to a Master with nothing decided with the coastguard line, no one would know what evidence to put in and what evidence not to put in, and the result of course would be everybody would dump in all the evidence that he could find and I think the total effect would be a worst morass and that the Court would have it all back in.

Now, the last part of my answer, Mr. Justice Harlan, is that there are some points that the argument where there appeared to be some questions of fact.

I don't think those are real questions put on the face of the briefs they seem to be here.

I do think that if the Court were to do the work of resolving the questions of law now that it would turn out that there were no significant factual differences among it.

So, on the whole, by urging, my recommendation is that the Court must face a large number I think all of these questions but I don't want to pretend that isn't the difficult matter of balance.

What I do want to urge very strongly is that authorities be given -- will be given all the guidance and that the Master be given if the Court decides to send it to Master.

All the guidance it can that is I think the question I've been talking about is one that can be resolve here.

I don't think this and many of the other questions can be resolve here if there remain some others then at least we can get part of the money distributed but we could focus on specific issues in the subsequent proceeding.

And I think it would be more efficient way to administer justice.

Justice Abe Fortas: Well, Mr. Cox if I felt comfortable that there were no issue of fact that's been post between you and Mr. Miller with respect to the dredged channels and few more comfortable about your last observations and perhaps after we read the record (Voice Overlap) the transcript of argument, consider the briefs more thoroughly than (Voice Overlap) conclusion but I did not get that impression in the course of argument.

Mr. Archibald Cox: Well, he was two minutes and perhaps he'll enlighten you, Your Honor.

Justice Byron R. White: Well, Mr. Cox could I just ask you?

Do I understand it correctly that those red areas that was support -- are those red areas are more than three miles from the coastline some other?

Mr. Archibald Cox: No.

Justice Byron R. White: They're all within three miles of the coastline?

Mr. Archibald Cox: They're all within three miles of the coastline.

Justice Byron R. White: And as you interpret the coastline (Voice Overlap)?

Mr. Archibald Cox: As we interpret the coastline.

Justice Byron R. White: Is that true of that little red area in East Bay?

Mr. Archibald Cox: Yes.

Let's look at this maybe we can see it better on the smaller one.

The reason is that remember when you draw the coastline, you swing a three-mile arc dot it from any low tide elevation.

Justice Byron R. White: And any island?

Mr. Archibald Cox: Yes but it's not so much the islands here as it is low tide elevations within three miles of the (Voice Overlap).

Justice Byron R. White: And the United States sticks with its concession on the east there on those, that string of islands going up.

Mr. Archibald Cox: Yes.

I don't know whether I'm trespassing too much.

We do stick with it as we don't claim this.

Justice Byron R. White: But that's another -- that would be another I suppose assertion by the United States beyond three miles.

Mr. Archibald Cox: Well, at one time.

Justice Byron R. White: In terms of the Geneva Convention.

Mr. Archibald Cox: Alright, at one time the State Department was asserted that a realm of islands within perhaps six miles or later perhaps 10 miles of each other an area like this did enclose inland waters.

This was the position that the United States in 1953.

Until the decision in the California case the view of the Government was that we should apply the position of the State Department in 1953.

So, we find it here.

Now, we'd learned two things later.

First, that that wasn't the international law but it was our claim that it wasn't the international law; and second, that we weren't governed by the position of the United States in 1953 but by the Geneva Convention as the Court held in the California case.

Other result was that there was nothing more than that we would've apply the Geneva Conventions but a lot of things can happen.

We had said the opposite to this Court and the Court relied on it.

We had -- there had been leasing and people had relied on it and we repeatedly doubt with Louisiana in this term and it seem to me that it was not suitable becoming for the United States having gone that far to suddenly say well we made a mistake, we're sorry we led you all into this but we insist now and backing out.

So, we think it's a purely practical matter while we did it, we're stuck with it and we ought to live by it.

And it's on that basis and no rule of international law --

Justice Hugo L. Black: What that you were saying that this area inside the coast goes to Louisiana?

Rebuttal of J. B. Miller

Mr. J. B. Miller: May it please the Court.

In the short time left to me, I'd like to point out to Your Honors that Mr. Cox is in error about East Bay, the navigation laws that the United States published in 1940 shows precisely that East Bay was considered inland waters of the United States at the time of its publication as you'll see on page 418.

He is in error also --

Justice Hugo L. Black: Is anything in the beginning of that about what its purpose is?

Mr. J. B. Miller: Navigation laws of the United States of 1940 published by the Department of Commerce of the United States.

Justice Hugo L. Black: Have any lines on this?

Mr. J. B. Miller: It describes the lines just as there had been described before.

It isn't a chart, it is a book.

Justice Hugo L. Black: Yes.

Mr. J. B. Miller: But it is there.

He is in error in our opinion in his reference to the Annapolis which I think is so important in relation to Justice White's question because there, the brief said precisely that their right to regulate foreign vessels was limited to their own jurisdiction so to our inland waters.

We think it is perfectly clear that Justice Stewart raised a proper point with reference to the word “normal” in the Geneva Convention.

It couldn't have been put there meaninglessly by all the people who went to that Convention when the word “normal” indicates that if an abnormal situation exists a different treatment is to be accorded.

One final word, the State Department may have the right for our Government to act in determining whether our boundary is three miles, three leagues or a greater number of leagues from our coast.

But the Congress confined it to the Secretary of the Treasury not to the State Department the right the duty to mark the outer limit of inland waters and he did so.

And he did so by these lines which have been on published charts for years.

And when I asked the Commandant of the coastguard last year when he proposed the change of it if any, any foreign government, any foreign vessel, anyone else had ever protested that line, he said if there is such a protest we will advice you and none such has been given.

We say --

Justice Hugo L. Black: You say for years there had been charts?

Mr. J. B. Miller: Sir?

Justice Hugo L. Black: Did you say for years there have been large charts?

Mr. J. B. Miller: Yes, sir and there have been large charts which showed all of these lines starting back from 1895.

This much of the line has been on the chart only since 1953 but the lines marking the points marking it had been there for many years designated and defined by the same federal authority.

Justice Hugo L. Black: Is it your argument that you are -- those charts fall within the requirements of Article 3 that says along the coast as marked on large scale charts officially recognized by the coastal (Voice Overlap)?

Mr. J. B. Miller: I would certainly think so Justice Black, if not it has not yet been suggested to us who in the federal government will do this if the agency directed by Congress to do it is not the one to do it.

Thank you, Your Honors.

Transcript: 

Argument of Victor A. Sachse

Chief Justice Earl Warren: Number 9, original, United States of America, plaintiff, versus the State of Louisiana.

Mr. Sachse, you are arguing first, aren't you--

Mr. Victor A. Sachse: Yes.

Chief Justice Earl Warren: In the matter?

Very well.

Mr. Victor A. Sachse: I'm Victor Sachse, Your Honor.

May it please the Court.

In 1960, as Your Honors know, in the-- in an earlier stage of this same case, Your Honors held that the Submerged Lands Act of 1953 confirmed or put claim to Louisiana, Mississippi, and Alabama three miles from their cost lines while put-- claiming three leagues for Texas and Florida.

In your decree, as in the Submerged Lands Act itself, the “coast line” is defined as meaning the 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.

This Court retained jurisdiction.

Some few modifications were made in December 1965 by the United States but the coast line, although it long ago is designated and defined by agencies of the federal government directed by Congress to do that very thing and although it was long ago accepted and approved by the State of Louisiana, has not been approved by the Attorney General of the United States.

So, last September, we filed a motion to have the Court recognize it.

In January, the Attorney General responded, opposed recognition of this line.

Instead, asked for the recognition of the line according to his interpretation of the Geneva Convention, the convention on the territory of seas and contiguous zones.

Justice John M. Harlan: The line that you refer to is the coastguard lines.

Mr. Victor A. Sachse: We don't refer to it as the coastguard lines because it was marked so long before the coastguard had anything to do with it.

We refer to it as the inland waterline, but I'm sure we're talking to the same thing, Justice Harlan.

Justice John M. Harlan: You use that as a casual phrase to describe what you're talking about.

Mr. Victor A. Sachse: Well, we use it and we refer to it as the inland waterline because the Congress directed, in1895, the Secretary of the Treasury to mark, to designate, and define by suitable bearings or ranges with lighthouses, light vessels, buoys, or coast objects, their lines dividing the high seas from rivers, harbors, and inland waters.

And, “inland waters” is the basis of this issue as we have it.

It is the basis of the statute.

It is the point of argument between ourselves and the Solicitor General.

I want to say that the phase of the argument which I will attempt to cover relates to the inland waterline.

In January of this year, the Solic-- the Attorney General, through the Solicitor, claimed a different line based on the Geneva Convention.

Louisiana started to leave the issue right there, but we concluded that we found the-- that line wrong also and that incorrect interpretations of the Geneva Convention had been used, as we understand it.

So, we filed in May an-- a motion for an ultimate line.

Mr. J. B. Miller of New Orleans will speak to the Court with respect to the lines relating to the Geneva Convention and I will not.

There is no dispute, Your Honors, as to this inland waterline as designated and defined by agencies of the federal government pursuant to the 1895 Act.

Justice John M. Harlan: Do you mean there's no dispute as to where it is?

Mr. Victor A. Sachse: Correct, sir.

There is not dis-- no factual dispute about its existence and, therefore, argu--

Justice John M. Harlan: Existence or location.

Mr. Victor A. Sachse: That is right and, therefore, the argument concerning it need not take as much time as the argument about any line under the Geneva Convention which would necessarily involve a great many disputes about fact.

I call Your Honors' attention to a statement from a brief filed on behalf of the government in the 1956 stage of this case, in which it was said to the Court that Louisiana shore, and I draw a distinction between shore and coast as we go along in, the United States said that Louisiana Shore has a contour so nearly leveled that even minor wind variations, and Your Honors know that we have hurricanes of unbelievably severe power, can cause various substantial differences in a point to which the tide retreats, says the Government.

The shoreline is not a stable one and that's quite true and quite an understatement but, they added, is subject through most of its length to rapid and substantial changes of islands may be moved as many as four miles.

A judicial inquiry for the precise location of the entire shoreline might be stretched to require many years for completion, so said the government in 1956.

Although such a consideration ought not to be necessary, and it is not really, in our opinion, although the inland waterline was designated and defined long ago, has been marked on public charters published to the world and not challenged and, in our opinion, ought to be understood by everyone to be the outer limit of inland waters as used by this Court, as used by the Congress, a great part of the time, allotted to Louisiana and has been assigned to my friend, Mr. Miller, because of a difficulty in discussing factual distinctions with respect to any sort of the Geneva line.

Justice Abe Fortas: For what purpose was that line established?

Mr. Victor A. Sachse: The 1895 line was established originally, Justice Harlan, as we've tried to outline in our brief, because the Congress made a deliberate decision in 1885 that it would prescribe different rules for the inland waters of the United States than for the territorial sea.

And, it became necessary then to find out where this is, where this was then.

In-- Your Honors know, of course, of the Delaware involving the channels, getting its channel to the Harbor of New York.

After the 1885 Act was passed, before the 1895 Act was passed, a collision occurred.

And, this Court in the case of the Delaware had to consider whether international rules or inland rules were to be applied to the case.

Your Honors' predecessors said then that the 1895 Act had not drawn-- 1885 Act had not drawn any line, and to quote from the Court, “nor could any general legislation do so.”

But, the Court added, the Congress by the Act of 1895, passed since the occurrence which caused the case to be before the Court had arisen, had directed the Secretary of the Treasury to designated and defined the line and he had done so, and this Court decided that the inland rules marked-- declared by Congress applied in the inland waters designated and defined by the Secretary of the Treasury as fully as if New York Harbor itself were involved.

Now--

Justice Abe Fortas: Perhaps that's the issue, that is to say, as I understand you and as I understand the fact, that line was drawn for purposes of determining which navigational rules would apply.

Mr. Victor A. Sachse: That is not to be disputed, but from that or with that flows, in our opinion, the rights of territory, the rights of sovereignty because without the right of sovereignty the United States would not have the right to legally declare that inland rules of navigation apply to foreign vessels within this line.

I cite you to Collins, in his work on the subject in 1949.

Now, Louisiana knows that whether you consider this as the coastline of the United States for all references, it was within the meaning of Congress the coastline where the Submerged Lands Act was passed, and I used the verb I have chosen because it was presented to Congress by a spokesman from Louisiana much as we're presenting it to you on this year today in 1949 when earlier legislation was before the Congress and before the Senate.

In respect to modifying the rules of the first California case, the Bill is then pending, referred to “shore.”

And, Louisiana spokesman stood before that committee and said that “shore” was the wrong word to use.

“Coast” was the right word to use and the reason “coast” should be used was because not only was that a part of our act of admission, not only was it a part of our constitution but, more closely to the point, Congress itself had used the word “coast” in the 1895 Act in undertaking to say where the inland waters are.

And, our spokesman then, as I now, call that Act to the attention of Congress, called the Delaware to the attention of Congress and, from that time on, the legislation pending used the word “coast,” “coastline,” and not “shores.”

There was an attempt, while the Submerged Lands Act was before Congress, by certain senators who opposed the Act entirely.

There was an attempt by the then-Attorney General of the United States to have the Congress accept the idea of a shoreline instead of a coastline, but this was rejected and the idea of the coastline was used.

Now, I pass to another phase.

Immediately following the Act of 1895, the Secretary of the Treasury began to mark this line to designate and define the line between inland waters and the high seas.

As directed by Congress, he used “coast objects,” which means to us “coastline.”

As directed by Congress, he used “light vessels and buoys,” which means to us that Congress knew then, as it had known in all of its earlier Acts, that at least the part of the United States had its coastline in the water, and so it has been ever since.

The government says in its current briefs that not until 1937 were there any indication by the government that this line meant something different, that it didn't actually divide inland waters from the high seas, that, after that time, they began to put a different legend on their charts or in their publications.

Mr. Shalowitz for the Department of Commerce says the change occurred in 1948.

Whichever date you take, the fact is that, by that time, we were in litigation and, by that time, the government had changed its position of not claiming any waters or any lands beneath submerged waters out from the shores of the states and, by that time, you were heading towards your first California decision.

And, I submit-- we submit that change is made by the government in its treatment of its own publications after the case was in litigation ought not to bear much weight with the Court.

We point to the fact that, in the government's brief in19-- they refer to the fact that the coastguard commandant who, by that time, was the officer who then had the duty formerly possessed by the Secretary of Treasury, by the Secretary of Commerce and Labor, by the Secretary of Commerce.

Now, the commandant of the coastguard has it.

And, when he finished marking on the charts, not designating and defining the lights and the vessels and the coast markings but actually physically putting a line on the chart, he did make a statement, in which, he said he was doing this for navigation and he was not undertaking to set the boundaries of the United States or of the States or of the jurisdiction of either.

We don't find fault with that statement because, at that time, it had not been determined whether there would be three leagues for the states or three miles for the state or some for one and some for another.

And, the commandant may have been trying to save that point but, whatever his intention was, he had to conclude as the Congress directed him to conclude by saying that the inland rules enacted by Congress related to the waters landwards of this line and the international rules of the high seas related to waters seaward of the line.

I take one moment to point something that Mr. Miller will explain to you more carefully.

This heavy green line is the line marked by the agencies of the federal government which Louisiana accepted in 1954.

This rather lighter line, dotted line, is the hundred-thousandth line of the continental shelf and, for a long time, was thought to be the edge of the outer continental shelf.

All of the area in between is area that is exclusive to the federal government.

Only this area is in issue.

The red line is the line which the government contends is the coastline and which so nearly follows the Louisiana shore.

I come now in some haste because of the limited time allotted here.

Justice William J. Brennan: May I just ask, Mr. Sachse, in this argument, I gather that line the commandant of the coastguard could change tomorrow, couldn't he?

Mr. Victor A. Sachse: You mean the commandant could change this line?

Justice William J. Brennan: Yes.

Mr. Victor A. Sachse: This is not our position, Justice Brennan, because--

Justice William J. Brennan: No, I ask may-- does he have power to change it?

Mr. Victor A. Sachse: We think that if we are correct that this is now declared by Congress through its action to be the coastline of Louisiana, then no one has the right to change it for any purpose but, certainly, no one has the right to change it for the purposes of the Submerged Lands Act.

Justice William J. Brennan: You mean, in any event, that line is frozen as of the time of the-- for the--

Mr. Victor A. Sachse: For the purposes of the Submerged Lands Act.

I'll not stand before the Court and say that they are not mobile boundaries on the sea that as land moves, as land builds out by the Mississippi, as land recedes in other portions of our shore that adjustments will not have to be made some time.

But, so far as the Submerged Lands Act is concerned, the Congress had said, first, by one Act divided into two: Submerged Lands Act and Outer Continental Shelf Lands Act in pursuance of the Truman Doctrine of 1945, nobody but the United States is going to have any of the minerals on mineral resources from this submerged lands on our continental shelf.

Now, we will divide that between the federal government and the state governments.

And, they did it in the fashion, Your Honors know, of saying either three miles or three leagues as can be shown.

I must take a minute or two on the California case.

I cannot ignore the fact that, in this second California case, when the lawyer stood before this Court, and you did not have the benefit, Justice Harlan, of any such light as this, and Justice Brennan and Justice Goldberg asked Mr. Cox whether California or the United States had any argument to be based upon the inland waterline.

Mr. Cox said no and California didn't dispute it.

So far as we can find from the briefs, so far as we can find from the report of the decision by this Court, there was no mention of the Delaware case.

There was no mention at all of that, yet that is the case that we think is most important of all.

Your Honors said, through you, Justice Harlan, that when the Submerged Lands Act was passed there was no definition of inland waters because the managers expected that earlier decisions and earlier Acts of Congress would supply that definition, and it was only because of the lack of the section of a definition that you turn to the Geneva Convention.

And, I will close with this.

If it be said in argument as it had been said in briefs that all states must be treated alike, Your Honors know that is not correct.

Your Honors have had the three leagues and three-mile issue for you before, but to bring it home precisely to this point.

When this legislation was pending before Congress there was a report by the Congress which we've cited, No. 2515, which deals precisely with the thing I'm now talking about.

It said that Congress, not some representative, not just the Senate, and no matter how important, but the Congress.

There is a startling difference between the shore and coast of Louisiana and Florida, on the one hand, and that of Texas and California, on the other.

To say that these contrasting coastal areas should be treated exactly alike, with reference to the definition of inland waters, would ignore geographical factors that are wholly different.

We respectfully point out that however these resources are used, whether they come through Louisiana and the other literal states or whether they come through the federal government, only Americans can have them but it would be a tragedy, we think, to lead any foreign nation to be believed that these shallow waters where ocean-going vessels cannot travel, that these waters between the passes of the Mississippi River are international waters of the high seas, Mr. Miller will take for Louisiana.

Chief Justice Earl Warren: Mr. Miller.

Argument of J. B. Miller

Mr. J. B. Miller: May it please the Court.

In addition to our motion which litigant filed asserting the inland waterline as a coastline, we filed an alternative motion asserting an alternative coastline under the Geneva Convention.

If the inland waterline is adopted, of course the alternative motion would become moot.

For the convenience of the Court, we have filed these folders which we hope will assist you in following us along the coast.

Within the time allotted, it will not be possible to cover every segment of this coastline and our failure to do so should not be considered as an advantage.

As Mr. Sachse pointed out, in the California case this Court adopted the Geneva Convention for the Submerged Lands Act.

It did not, however, permit California to use the system of straight baselines because the Tort Court found that it would extend our traditional-- our boundaries beyond their traditional limits.

Consequently, Louisiana has not used this system of straight baselines.

We do feel, however, that our coast for these islands and shallow waters is an ideal place for that system to be used.

As a result of not using this system, those-- we and the government have had considerable difficulty in feeding our coast into the remaining sections of the Geneva Convention, and we have disagreed completely over the proper interpretation of that Act.

Louisiana feels that the Convention should be interpreted literally, and I have to stop, Your Honor, I have a red light.

Unknown Speaker: The Honorable Court is now adjourned until tomorrow at 10:00.