UNITED STATES v. LOUISIANA

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Argument of Louis F. Claiborne

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

(Texas Boundary case).

Justice Hugo L. Black: Mr. Claiborne

Mr. Louis F. Claiborne: Mr. Justice Black and may it please the Court.

Let me make clear at the outset that despite the title of the case, this original action or this face of this original action involves only the State of Texas not Louisiana or as might be otherwise in the case.

It's perhaps fitting that the Court herein apology first for having to hear for the third time since the passage of the Submerged Lands Act another aspect of this title lands controversy between the United States and Texas.

One might have hoped that eight terms ago, when the Court decided that Texas unlike most of the gulf states was entitled to historic claim in the gulf that that historic claim was based on the Republic of Texas Boundary Act which defined the belt of Texas as nine miles from land and the Texas coast being relatively uncomplicated, that might have been the end of the matter.

Unfortunately, however, there was that non-resolved matters which came before the Court only at the last term.

The question then was where you start measuring this nine-mile belt, whether from the present coast or rather from the historic coast, that is the coast in 1845.

The Court there determined that it was measured, was to be measured.

This nine-mile historic belt to Texas had been adjudicated, that it was to be measured from the historic coast, the coast in 1845.

Therefore, one could not take into account artificial jetties that had been put outside of harbors at the Galveston and Sabine Pass.

When it came to translating the Court's opinion into a decree, we discovered that we've left another problem unresolved.

It was easy or it was done, it wasn't easy.

The parties did stipulate where the 1845 coast was and that has been stipulated in a written client stipulation which is before the Court.

Texas thought that the next step was simply to measure nine miles out from that which was done and that line has been stipulated.

However, the Submerged Lands Act contains a provision that no state not even a state in the Gulf of Mexico is entitled to submerge lands more than nine miles from its coast.

United States takes a position that nine miles from its coast of that purpose, for the purpose of its limitation means nine miles from the present coast not from the historic coast.

Now, it so happens that the Texas coast has eroded substantially over the last century.

One of the little drawings which have been distributed to the Court indicates the extent roughly of the erosion and the extent of the accretion.

The portion of shown in red indicates the erosion.

That's what concerns us today.

Because most of the coast has eroded rather than accreted, we do have a difference as to where this nine-mile belt ends up depending on where it begins.

Now, the real question is as I said, whether this limitation which Texas acknowledges and which is stated in plain words in the Submerged Lands Act that no state shall take more than nine miles from a coast means from the present coast.

If it means from the present coast, then we cannot measure from the old coast because that would push the line beyond nine miles from the present coast.

Now, the effectiveness is --

Justice Hugo L. Black: (Inaudible)

Mr. Louis F. Claiborne: Mr. Justice Black, this problem cannot arise with respect to any other state except Florida.

It arises with respect to those two states only because they have received grants which come to the very edge of the maximum, the maximum for any state being nine miles.

Otherwise, the problem would never arise.

While Florida was -- may be affected by the decision here and was duly notified of that fact, it shows not to participate in this face of the controversy.

Now, as I say, the effect of this translated into one small segment of the coast is depicted on the chart behind me, a copy of which in small form has also been distributed to the Court.

This is chart prepared by the State of Texas.

But it shows rather clearly what the difference is.

Last term, we were arguing about the effect of accretion, artificial accretion in that case but the same principle applies to natural accretion whether that pushed out the nine-mile belt.

The answer was it did not.

This time, we're arguing about whether the effect of erosion is to bring in the line because otherwise, this final line would be more than nine miles from the present shore.

Again, we say that this territory is not properly attributable to Texas under the Submerged Lands Act.

Now, you can see from just that statement that Texas appears to have at least two advantages in this case.

One is that we appear to be saying, heads we win, tails you lose.

Whether it's accretion or erosion, Texas gets the benefit of neither.

Secondly, our position results in a changeable, movable line as the modern coast shifts whereas Texas would have a fixed, permanent line nine miles from the stipulated 1845 coast which would not be affected by any future changes one way or the other.

Justice Byron R. White: Wouldn't -- you line could never move seaward could it?

Mr. Louis F. Claiborne: Up to the line, will move seaward from where it is today if there is accretion where there presently erosion.

Other way, if this erosion should disappear, we would put the line here today.

Ten years from now, if this erosion is recaptured by the land, that would shift the nine-mile --

Justice Byron R. White: You would move both ways?

Mr. Louis F. Claiborne: We would move both ways in some areas.

Now, as I say, the superficial attraction of a permanent line which is already been stipulated which would certainly spare this Court of any necessity for future litigation if the Texas position where adopted.

We recognize the simplicity, the attraction of that position but let me say as to the first point, to the point that we seem to be same to Texas on a manner which way it shifts, you don't get the benefit of it.

That's not entirely true.

When there is a shift, when there is accretion of more than six miles, whether that be by natural accretion or by the building more likely, by the building of harbor work, then we would push the line out because in that instance, we would say to Texas, “Now, you're taking not under the historic claim, you're taking three miles which every state has a right to do from its modern coast.”

This example is illustrated on pages 20 and 21 of our memorandum.

That may be a small compensation for the other effect.

The reason it's a small compensation is simply because Texas is in the unusual position of having a nine-mile belt whereas every state but one has only a three-mile belt.

Justice John M. Harlan: Do you find any basis for the present position in this case saying that the national coast lines are part of the actual coast lines (Inaudible)?

Mr. Louis F. Claiborne: No, Mr. Justice Harlan.

Justice John M. Harlan: So, you accept the view that this ambulatory line changes (Inaudible)?

Mr. Louis F. Claiborne: In the California case, Mr. Justice Harlan, with respect to a three-mile line, I think the Court was explicit that that line would change as is provided by the convention of --

Justice John M. Harlan: (Inaudible)

Mr. Louis F. Claiborne: I suppose that is true.

Perhaps I took the proposition to apply equally when we're talking about the shoreline, the natural accretion or erosion to that shoreline where that is the operative definition for the beginning of the territorial seas.

Justice John M. Harlan: Now your position though -- there are line of cases, but here we are talking with (Inaudible), the Federal Bureau says, well Texas is not affected (Inaudible).

Mr. Louis F. Claiborne: The court in the California case did advert to the governmental power to prevent an exaggerated extension of the coast by any state for its own benefits which didn't serve a national or a navigational purpose.

I took it that discussion applies equally whether an extension of the inland waters are involved or an extension of the natural coastline.

Justice John M. Harlan: I think you can find anything affecting the California in view of the national coastline involved (Inaudible).

Mr. Louis F. Claiborne: Mr. Justice Harlan, I'm not in a position to debate it.

I thought and I'm advised that California case did in fact deal for segments with shore as well with the line of inland waters.

I may be wrong with that.

It has certainly been assumed by all parties since that case including the argument of Louisiana case months ago that shifts in the shoreline when the shoreline is the coastline would affect the ultimate three-mile line and that I think is consistent with the international convention.

Of course, the Court having held in the California case that the one in the other are the same that is the international and the national line where the line is three miles from the coast.

This of course doesn't apply to Texas since here, we're dealing with a nine-mile line.

But let me say this bears on Your Honors' point that the appeal of the Texas position that we would here end up with a fixed permanent line that would not move would be an unusual result because as I understand it, in every other situation, we do in fact have a movable line, certainly we do where inland waters are involved and I thought it was clear that we deal with shoreline as the coastline.

Justice Hugo L. Black: (Inaudible)

Mr. Louis F. Claiborne: Well, Mr. Justice Black, as I understand, ordinary property law, normally if one owns the edge of a body of water, normally, that ownership carries with it a right to the accretions, therefore a shifting boundary as well as a loss by erosion if the water eats into the land.

So that the normal rule of property or boundaries on waters is that they do move as the water recedes or comes in.

Justice Hugo L. Black: (Inaudible)

Mr. Louis F. Claiborne: But I thought as I say, I may be wrong, Mr. Justice Black.

I thought the Court had long since determined that we were faced whatever inconveniences there might be to it, with a shifting line of those lands which have been --

Justice Hugo L. Black: (Inaudible)

Mr. Louis F. Claiborne: In the Cali --

Justice Hugo L. Black: -- even the same rule applied for all the issues?

Mr. Louis F. Claiborne: I only say that it would be odd if it didn't, not that it's impossible.

Of course, one could have a fixed line in the gulf with respect to Texas, a movable line in the gulf with respect to Louisiana or Alabama and Mississippi.

It would simply be against the normal, that's all I'm saying.

There is a more dispositive answer to all this which is that the text of the Submerged Lands Act makes it crystal clear that this nine-mile limitation beyond which no state can take whatever its historic boundary was that this nine-mile limitation reads from “the coastline”.

That word is the same operative word that defines the three-mile grant.

That word is expressly defined in the Submerged Lands Act in Section 2 (c).

It's defined there for all purposes.

It doesn't say as used in this subsection.

Coastline means the same thing each time it's used in the Submerged Lands Act and it has been defined by this Court to mean a measurement that modern coast, the ambulating modern coast.

If I am right in that premise, then it follows that this nine-mile limitation must also be measured from the modern ambulatory coast.

The confusion here arises only because it so happens that Texas' historic claim is nine miles and the limitation is also nine miles and there's a temptation to make the two read on the same points.

It's the -- case would be far easier to view if there had been a 12-mile historic grant -- historic claim by Texas only nine miles of which was cognizable under the Submerged Lands Act.

In that case, I don't think it would ever occur to anyone to go plot the 1845 shoreline because it would be evident that you only took the first nine miles of it.

And even clearer case perhaps would be if the boundary historically in the case of Texas had for instance been set for the southern part on the 97th meridian without any reference to the coast whatever.

In that case, it would be a great waste of effort to go back and see where the coast was at 1845 since the historic boundary was not related to the coast but was set geographically arbitrarily.

In that instance, one would of course read the nine-mile limitation of the Submerged Lands Act read as reading from the modern coast readily available.

Justice Potter Stewart: Mr. Claiborne, perhaps I'm -- perhaps I don't have this mind clearly but as I understand it, the -- Texas is contending for a maximum line out there, three leagues from their 1845 coastline.

Mr. Louis F. Claiborne: That's correct.

Justice Potter Stewart: That's right.

And you are contending for a maximum line gulfward of three leagues out from their coastline at any given time now or in the future as you said in your brief.

Mr. Louis F. Claiborne: Exactly.

Exactly.

Justice Potter Stewart: Isn't there or not a possible third alternative and that is a maximum of three leagues out from the coastline as of 1953 when the Submerged Lands Act was enacted?

Mr. Louis F. Claiborne: There certainly was --

Justice Potter Stewart: Is that you refers to the coastline and could it not be argued that the Congress meant to be referring to coastline as it then and there existed on the date of the enactment of the statute?

Mr. Louis F. Claiborne: Exactly.

Mr. Justice Stewart, in fact, I think that was at one time, the position argued by the United States.

I thought it had been the position argued by the United States in the California case and I thought it had been rejected by the Court saying no we don't look to 1953, we look to the convention --

Justice Potter Stewart: Well, that was really only with reference to inland waters, the inland water is part of coastline.

Mr. Louis F. Claiborne: Well, I --

Justice John M. Harlan: The inland water definition instead of what you are arguing, namely the practice of the state department in 1953 states the difference of the national accretion.

Well, if we rejected that and said here in the treaty or establishment (Inaudible).

Mr. Louis F. Claiborne: Well, I can only repeat and apologize for my ignorance of the details of the California decision.

Justice John M. Harlan: It occurs to me that, it's referring to me, that's the reason that I am asking the question, and as to (Inaudible) and so far as the national coastline is concerned, this was included today.

Mr. Louis F. Claiborne: I think and this may be an inadvertence --

Justice John M. Harlan: Well, with reference to the --

Mr. Louis F. Claiborne: I don't have the opinion handy.

Mr. Justice Harlan, I certainly be glad to furnish to the Court whatever reference as we can find.

My best memory is that at least the decree in the California case set out the definition of coastline in terms that at least imply a movable coastline when it is related to the natural shore that is where it is, the natural shore is in open contact with the sea.

I had taken it that that was the unanimous view of the meaning of a boundary, an international boundary under the international convention.

The Court having adopted for the purpose of inland waters, the international rules, I had supposed the same was true here with the three-mile limit or in this case, the nine-mile limit is defined by reference to the shore rather to the line of inland waters.

Justice Potter Stewart: Well, assuming that the position has not been precluded or forbidden by Mr. Justice Harlan's opinion in the California case.

Would it be rational third alternative argument to say that the three league limitation from the coastline means not the coastline as of 1845 and not the present and future coastline wherever it may be but the coastline as it was described by Congress that enacted the statute referring to it in the year 1953?

Mr. Louis F. Claiborne: Well, I only see two difficulties with it Mr. Justice Stewart.

The first is simply one of determining coastline as of that time wrote than is now.

However, having done that for 1845, I suppose we could manage it for the next (Voice Overlap).

Justice Potter Stewart: Entirely easy for 108 years later.

Mr. Louis F. Claiborne: The more serious problem I would think was that once the Court has adopted the rule that the three-mile limit internationally and the three-mile belt assigned to the states is one and the same then of course we'd be running against a different rule followed by the state department for international purposes in viewing the convention as establishing an ambulatory line even where that line is referenced to the open coast.

Justice Potter Stewart: Of course for international purposes in coast, the environmental context is quite different along the gulf and the way it is in the matter of the pacific anyway because of the Continental Shelf Act and the variety of other things, isn't it?

Mr. Louis F. Claiborne: Well, I don't say they need be the same nor they need be the same.

Perhaps there's less reason for them to be the same in the gulf than on the California coast but there I would suppose, you couldn't have two rules.

One for the gulf of the fixed lines of 1953, but in California, one that ambulates, so --

Justice Potter Stewart: As you pointed out as I thought that you'd pointed out, this case -- the decision in this case will have a reference only to would have an impact only upon Texas and upon Florida because of our earlier decision.

Mr. Louis F. Claiborne: Well, I meant to say perhaps that you couldn't have a 1953 boundary all over the gulf even where it's three miles as Louisiana or Alabama and Mississippi and yet have a different rule.

I wouldn't suppose one could have a different rule applied in California simply because international considerations may be more important on the Pacific and on the Atlantic coast than they are in the Gulf of Mexico.

But I would think one might also and this is somewhat hypothetical run across problems of a narrowing of that belt to the point where Texas would almost lose some of its lands or Louisiana might, if you got a very shifting boundary.

If you fix it as of any given time, and there's a substantial accretion, you presumably have no longer any water belt around you.

This notion of the shifting belt is more consistent with as I think normal property rules.

Justice Byron R. White: But the basic thing is that as Mr. Justice Stewart's, it's the only purpose of the three-league provision.

Mr. Louis F. Claiborne: Well, I don't see Mr. Justice White.

Justice Byron R. White: The is basic premise for the --

Mr. Louis F. Claiborne: But one cannot textually read the three-league and the three-mile stipulations in the act as starting from a different point.

They both start from coastline.

Justice Byron R. White: I see, now just getting back.

The (Inaudible) is clear if there were accretion to coastline, so the three-league has to take not the historic boundaries (Inaudible).

Mr. Louis F. Claiborne: No.

Then Texas would be entitled to the three-mile which every state is entitled to.

It would no longer no take under its historic grant.

It would take under the all states grant of three miles.

It would shift basis for its grant as we illustrate on page 21 if the land goes out to the point where the distance between the historic boundary and the land is no longer three miles.

If it's less than three miles we give them three miles.

Justice Byron R. White: What if it's the -- what if there's a --

Mr. Louis F. Claiborne: I say we, Congress did.

Justice Byron R. White: (Inaudible)

Mr. Louis F. Claiborne: Yes subject to this limitation.

Justice Byron R. White: And let's suppose that then there goes the historic boundaries have the exact (Inaudible).

Mr. Louis F. Claiborne: Yes.

Justice Byron R. White: And then there was a --

Mr. Louis F. Claiborne: Yes.

Justice Byron R. White: That Texas recognized the (Inaudible)?

Mr. Louis F. Claiborne: No.

The -- it seems to me all the discussion if I may so last term about artificial harbour works which was in turn premised on the California decision assume that that where the shoreline is the operative baseline, that shoreline is under the California decision extended so far out as these harbour works are filled out and we assumed as Texas did that that would result in a shift in its three-mile belt or in its nine-mile belt if that was the proper starting point as we assumed it would be as both parties assumed it would be had it been a conventional three-mile belt.

The only reason we argued it was not was because Texas took under the historic claim which must be judged by the facts of history not by changing facts of today.

Justice Potter Stewart: Well, except that Texas took in last term's case and in fact that Texas' claim is under the definition of the -- in the 1953 Act which does not contend the word coastline.

Mr. Louis F. Claiborne: It's --

Justice Potter Stewart: Which is the boundaries as they existed and such state became a member of the Union and then another provision of the Act to be establish as a maximum as you pointed out but the definition under which they claimed is not contained the phrase coastline, isn't that right?

Mr. Louis F. Claiborne: That is entirely correct and as I understand it, that was the basis of decision that Your Honor made it abundantly clear in the concurring opinion that was based on your concurrence.

Now, let me end on this that I do not think one can consistent with the text say that coastline for the purpose of this nine-mile limitations is something fixed as of 1953 but that for the purpose of the three-mile grant it may be a shifting one because both statements, that is the statement of the limitation and the statement of the three-mile grant, both reference to the single words coastline and those words are defined once and for all for all purposes in Section 2 (c) of the Act.

It cannot mean one thing one time and another thing in another time.

Therefore, if I'm right about the California case, here also, this nine-mile limitation must mean from the modern coast as it may be at any given time.

We have submitted decreased to the Court premised on our disagreement as to the theory.

However, we both agree with each other that if the Government's theory of the United States, this theory prevails its decrease beyond it and likewise if Texas is correct on the law its decrease, I should caution the Court that more sophisticated computations have required slight amendment of the figures in the decree which are not appropriate for statement orally and which will be supplied to the Court by concern by both parties within the next several days.

Justice John M. Harlan: This is (Inaudible)?

Mr. Louis F. Claiborne: That is entirely.

The only difference between us.

Justice John M. Harlan: (Inaudible)

Mr. Louis F. Claiborne: Hopefully not though I must and I think the Texas coast being as it is uncomplicated one need not envisage another Louisiana case for the Court at the next term.

Argument of Houghton Brownlee, Jr.

Mr. Houghton Brownlee, Jr.: Mr. Justice Black, may it please the Court.

As I remember, the last time we were here, our positions were almost exactly opposite and here we are simply because there is a difference in who gains an advantage as the simple truth no matter.

We were told quite plainly in the opinion that what Congress intended was to give us back what if we had in 1945 all that area that we've had in 1845.

Even one sentence in the majority opinion states that it's extremely clear, no new state boundaries being created by a state which qualifies and I'm talking about this historical claim.

Simply is being given the same area it had when it entered the union.

Now, there is only one possible way to do that and that's to use a fixed historic boundary.

Otherwise, erosion is going to take away something from Texas.

That's the only possible way to give that effect to the congressional intent is to measure from the fixed historic 1845 boundary as the majority opinion said.

I'm saying simply this sir that the only way that the Court can give effect to the congressional intent to give back to Texas the same area it had when it entered the union is to measure from fixed historical boundary three leagues out.

And that's the only possible way to include all of that area because we have lost somewhere between 17 and 35,000 acres through erosion.

Now, I can't tell you the exact amounts involved because we don't know.

We have one set of engineers that said 35.

They have another set of engineers that said 17 while it's somewhere in there.

In any event, it's important enough to tell his position on as far as the Government is concerned, they started out saying, “You're stuck with 1845 because they didn't want us to have the jetties.”

We were saying we want 1953 or present because we want the jetties.

Well now that they got the jetties cut away from us, they want to use the historic boundary only when it hurts us and use the modern boundary when it hurts us.

In other words, we don't win either way.

There's no way we can come out ahead in this proposition.

Sir.

Justice Hugo L. Black: (Inaudible)

Mr. Houghton Brownlee, Jr.: Yes sir, they certainly do.

I just don't think though that one should attribute an intention on the part of Congress to philosophy of these heads the Government wins and tails the state to lose.

I mean, that's just basically unfair.

Now, I think I can explain why this limitation was put into the Act.

This one in 2 (b) that he was referring to which incidentally does not contain the word present.

It was put in there because Texas and Louisiana prior to the enactment of the Submerged Lands Act had sought unilaterally by legislation of their own states to show their boundaries out to the edge of the continental shelf.

They wanted to make sure that Texas didn't get more than three leagues from its ancient historic boundary.

They want to make sure that no other state got more than three leagues from whatever historical boundary it could prove up.

Well, the one we proved up was this 1845 line which we've now more or less got located on the ground.

I think this is simply explanation as to why this limiting phrase was put in the definitions by the Congress.

Justice Hugo L. Black: (Inaudible), but it may have gotten any prompt --

Mr. Houghton Brownlee, Jr.: From this stipulated line.

Justice Hugo L. Black: And what's the difference?

Mr. Houghton Brownlee, Jr.: The one which the Government and we and the Government both worked out.

We started with maps in 1850 and we spent about $6,000.00 on engineering fees to locate these lines.

It's very in field notes.

We had to conform it to the 1927 North American datum.

We had to go through a lot of work.

Justice William J. Brennan: Well, specifically, it's that line marked 1845 shoreline in the map, isn't it?

Mr. Houghton Brownlee, Jr.: Well, that's just the graphic illustration, yes.

Justice William J. Brennan: I know, but that's what --

Mr. Houghton Brownlee, Jr.: Yes.

Justice William J. Brennan: -- that's what you say.

Mr. Houghton Brownlee, Jr.: That's right.

Justice William J. Brennan: And you say you measured nine miles from that, that gives you the straight line on the right.

Mr. Houghton Brownlee, Jr.: Correct.

Justice William J. Brennan: That's right.

That's Texas claim.

Mr. Houghton Brownlee, Jr.: Right.

And all we're saying today is here that we want to follow what you told us last time.

We think what you told us was very clear.

There are at least from the fixed historic 1845 boundary, a fixed line.

Justice Potter Stewart: Except --

Justice Hugo L. Black: (Inaudible)

Mr. Houghton Brownlee, Jr.: We are stipulated on the line, on where the line is.

We haven't stipulated that we're entitled to that claim, no sir.

Justice Potter Stewart: You said last time, the Court was not concerned at all, was it with the proviso of Section 2 (b).

Mr. Houghton Brownlee, Jr.: Well I think --

Justice Potter Stewart: Is that accurate or not?

Mr. Houghton Brownlee, Jr.: We didn't argue about it, no sir.

Justice Potter Stewart: You mean that wasn't an issue?

Mr. Houghton Brownlee, Jr.: No sir, it was not.

Justice Potter Stewart: So really, you can't -- it's not quite accurate to say that we told you anything last time with respect to the proviso of 2 (b), isn't it?

Mr. Houghton Brownlee, Jr.: Maybe we weren't told enough.

Suppose that's true but reading this opinion, I see at least 10 references to the fixed historic boundary in the majority opinion and see one or two in your concurring opinion and I see one in the dissenting opinion that all was very, very clear to me as to what the Court said.

Now, I just trust what the court meant what it said.

Justice John M. Harlan: But you are arguing the last time?

Mr. Houghton Brownlee, Jr.: That's correct sir.

And we -- I'd be willing to go back to that if --

Justice John M. Harlan: (Inaudible)

Mr. Houghton Brownlee, Jr.: Yes sir, it is a strange situation.

Justice Potter Stewart: But you are dealing with a different section of the Act.

Mr. Houghton Brownlee, Jr.: Well, we were dealing with the entire Act the last time.

Justice Potter Stewart: We were not dealing with it the last time.

Or unless you tell me if I'm factually wrong.

We were -- there was no issues last time under the Section 2 (b) proviso, is that true or not true?

It's just as a matter of fact?

Mr. Houghton Brownlee, Jr.: I'm not really certain whether that is in the Government's brief or not.

Justice Potter Stewart: Oh, I don't -- didn't take there was any claim.

Mr. Houghton Brownlee, Jr.: It might be.

I think perhaps they have some reference to a limitation of that kind, I'm not sure.

I'd have to go back and check.

Justice John M. Harlan: This would mean that the coastline in the statute (Inaudible).

Mr. Houghton Brownlee, Jr.: Certainly, historic coast -- coastline.

Justice John M. Harlan: It makes the Government historic boundary, (Inaudible).

Mr. Houghton Brownlee, Jr.: Yes

Justice John M. Harlan: (Inaudible)

Mr. Houghton Brownlee, Jr.: That's correct.

We think you can have two types of coastlines like you can have two types of boundaries, one historic claim, the other a simple grant and that's how our case was distinguished in the first place from the California case.

See, I mean I think really the problem is that the Government is trying to have it both ways and thus this doesn't seem inappropriate intent to place so to speak in the matter of Congress.

Now, --

Justice Byron R. White: The government has made what are historic boundaries?

Mr. Houghton Brownlee, Jr.: Yes sir, we are in agreement as to where it is located on the ground.

Justice Byron R. White: (Inaudible)

Mr. Houghton Brownlee, Jr.: Yes, that we measure out from that line wherever it is.

We lose whatever erosion that may have occurred at that time, we gain whatever -- I mean, we gain whatever -- well, we would have a line in other words but we would pick up would be what we lose between 1845 and today.

And the actual land that submerged or blew away.

Justice Byron R. White: Historic boundary across the (Inaudible)

Mr. Houghton Brownlee, Jr.: No, it was exactly three leagues from the then coastline.

It was from the then coastline.

Well, from land, from land.

Actually, the statute read from land.

Well, I would say from land is where the Texas Boundary Act read.

Now, how would that have been interpreted at that time, I don't know.

Justice Byron R. White: Do you have difficulty?

Mr. Houghton Brownlee, Jr.: No, I have no difficulty.

I think it was what we would normally call the coast today.

There were no artificial works or anything of that kind.

It was completely natural at that time.

Justice Harry A. Blackmun: Mr. Brownlee, I forgot, what's the legislative history which explains the three-league limitation anyway?

Mr. Houghton Brownlee, Jr.: Well, it's rather strange thing.

For some reason or another way back there, a law was passed establishing a boundary that was prior to the admission of Texas and of the union.

We tried to find out once before why this was done and we never did find it out.

All we knew was that it was that and it was asserted by the republic as its boundary.

Now, there was a lot of international law that went back in those days that did claim the boundaries longer than three miles.

We got into all that in the original case.

Justice William O. Douglas: You have limitation that you should get not more than three leagues from --

Mr. Houghton Brownlee, Jr.: Yes,

Justice William O. Douglas: -- the coastline.

Mr. Houghton Brownlee, Jr.: -- because that was the historic --

Justice William O. Douglas: Because I gather this one that the republic attempted would have taken it way beyond, would it three leagues from the old coastline?

Mr. Houghton Brownlee, Jr.: No, that was the State of Texas in that 1943 --

Justice William O. Douglas: 1943

Mr. Houghton Brownlee, Jr.: Yes, when the California case came up in 1947.

I think this happened after that time.

Then Texas runs out, passes a statute saying our boundary goes out.

Well, of course that was a futile act that had --

Justice William O. Douglas: It goes out how far?

Mr. Houghton Brownlee, Jr.: Well, to the edge of the continental shelf about 200 miles.

Justice William O. Douglas: Oh I see.

Mr. Houghton Brownlee, Jr.: It was a futile act --

Justice William O. Douglas: Well now then was the limitation are you suggesting in response to that Texas statute?

Mr. Houghton Brownlee, Jr.: Yes sir.

That's exactly what it was.

Louisiana did the same thing.

They passed a statute trying to stick their boundary out as far as they could and then they wanted to get the Submerged Lands Act passed.

Well, this proviso had to go in there to prevent that type of claim.That was the reason for it.

Justice Hugo L. Black: Why do you think (Inaudible)?

Mr. Houghton Brownlee, Jr.: Well, you cans look at this exhibit.

Well, how far it would vary with these red lines.

Now, these were exaggerated.

Justice Hugo L. Black: What about the (Inaudible)?

Mr. Houghton Brownlee, Jr.: Well, let me look at the scale beneath and I think I can tell you.

The farthest point from land would be -- let's see –-

Oh!

It looks like, maybe at one point as far out as ten miles.

And other points, it runs back 20 miles into the coast.

Justice Abe Fortas: Where is the ten-mile?

Mr. Houghton Brownlee, Jr.: Near Louisiana, near the Sabine.

Justice Abe Fortas: Well, I thought that was in terms of that not in the accretion erosion scale?

Mr. Houghton Brownlee, Jr.: Yes sir.

This would be --

Justice Abe Fortas: Well, it wouldn't be anything like ten miles, would it?

Mr. Houghton Brownlee, Jr.: I don't know.

I was looking at, oh no --

Justice Abe Fortas: 10,000 feet, that's about --

Mr. Houghton Brownlee, Jr.: I was like --

Justice Abe Fortas: Most two miles or a mile.

Mr. Houghton Brownlee, Jr.: You're right.

You're right.

I was looking at the wrong scale.

Justice Abe Fortas: So that this erosion as I understand it is a slow process and so is accretion.

Mr. Houghton Brownlee, Jr.: Yes that's right.

So you're right.

It's not nearly that far out nor does it cover a very wide area as far as that's concerned.

As I said, it makes a difference.

We're not really sure how much.

But we do not believe that the Court should allow this proposition of -- you can use the 1845 boundary when it hurts you.

In other words, where there has been erosion, you got to use it where it hurts you.

But you can't use it where it helps you.

We say that's basically an unfair argument.

We think it's the position which the Congress did not have in mind when it passed the Submerged Lands Act.

And we feel that the opinion has made this statement by the Court at least very clear.

We don't think it's at all ambiguous and we see no trouble at all in reconciling the limitation imposed to prevent those exaggerated claims with the other definitions of the statute.

Thank you.

Justice Hugo L. Black: (Inaudible)

Rebuttal of Louis F. Claiborne

Mr. Louis F. Claiborne: In one sense, Mr. Justice Black that is true.

That is the way it works out.

Now because we -- it --

Justice Hugo L. Black: (Inaudible)

Mr. Louis F. Claiborne: But we're dealing with two quite separate provisions.

One is the provision which the Court held last time determines the extent of the historic claim it being a historic claim.

It was properly to be measured from the historic shore.

That is what the Court held.

And that of course is what we argued last time.

Now, we're dealing with something quite different.

We're dealing with a maximum limitation which is stated to be from a coastline.

That maximum limitation applies not only to those states which -- well, not only to Texas in terms.

It applies to any state which is able to show a historic, a valid historic claim.

Well --

Justice Hugo L. Black: (Inaudible)

Mr. Louis F. Claiborne: As it -- as it --

Justice Hugo L. Black: (Inaudible)

Mr. Louis F. Claiborne: Well, Mr. Justice Black this three-league or nine-mile limitation only applies in the gulf but it applies to all the Gulf States and it simply says that you may take as much as you had when you came into the union but no more than nine miles from the coast.

And the coast is then defined for that purpose as well as for the purpose of the three-mile grant which every state gets and I can only say I thought it had been decided by the Court that that meant the modern coast not the historic coast, not the 1953 coast but the modern coast as it shifts time to time, the coast today.

Justice William J. Brennan: Do you agree with Mr. Brownlee that that proviso was a response to this 1943 Texas statute?

Mr. Louis F. Claiborne: This proviso was added as I understand on the floor rather as a -- without much explanation.

It does appear however or one can I think fairly deduce that the nine-mile limitation was in response to the very exorbitant or at least very soft generous claims made by Texas and Louisiana and had also by Louisiana, now that I really don't know.

Justice William J. Brennan: Well, if that is so, wouldn't that argue against your idea that the coastline means present coastline?

Mr. Louis F. Claiborne: No, for instance in the case of Louisiana, the claim was not a state in number of leagues from the coast or at least the definition of the coast began so far out that this practical matter, there were 20 miles or so out into the gulf.

And there were boundaries set was straight lines, it had no relation to the coast so as applied to Louisiana, this nine-mile limitations couldn't be measured from any historic shoreline.

It would have to be measured from the modern shoreline.

Justice William J. Brennan: Well, I'm just --

Mr. Louis F. Claiborne: It was just nine miles (Voice Overlap).

Justice William J. Brennan: If in the case of Texas what the Congress wanted to be sure that limitation gave them no more than what they had back in 1845, I suggest that might mean that coastline meant the coastline of 1845 and not --

Mr. Louis F. Claiborne: Had Texas been the only state against which this limitation was designed and since it happened that Texas had a nine-mile claim, one might have made the inference Your Honor suggest since however it is equally fair to read this limitation as Reed against Louisiana which showed a different sort of claim, I don't think the conclusion is warranted.