UTAH v. UNITED STATES

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Argument of Peter L. Strauss

Chief Justice Warren E. Burger: We'll hear arguments next in number 31 original, the State of Utah against the United States.

Mr. Strauss, you may proceed whenever you're ready.

Mr. Peter L. Strauss: Mr. Chief Justice and may it please the Court.

This is a case in this Court's original jurisdiction which was brought by the State of Utah under authority granted by the Congress to determine whether the United States or Utah prior to a quitclaim deed given by the United States, had title to the lands lying below the meander line of the Great Salt Lake which is a shallow and very salty body of water of some size lying wholly within the State of Utah in its northern portion.

After a variety of procedural rulings which I need not to remind the Court of.

The case was referred to Special Master, the Honorable J. Cullen Ganey to report to this Court on the issue of the title.

That issue has several aspects and then the proceedings immediately had had, he decided only one of those which is whether the Great Salt Lake was a navigable body of water on the day when Utah became a State, January 4, 1896.

And the parties have fully agreed that if the Great Salt Lake was not navigable on that day, then the United States continued its ownership of all the lands below the meander line and in that situation, further proceedings will eventually be required to determine if the market value of the lands which have subsequently been quickclaimed to Utah, so that Utah may pay that value for the quitclaim deed.

If on the other hand, the Great Salt Lake was navigable on that day in January 1896 then the lake that passed to Utah at that time, instant as part of the operation of the Principle of Equal Footing or Equality Among the States, then is no necessity for Utah to pay for lands which were within the boundaries of the lake as they existed on that day, save possibly for such lands as have been since relicted by the recession of the lake from its shores.

And the issues where the boundaries of the lake were on January 4, 1896 and whether the United States continued entitle or obtain title to such lands as might have relicted after that date, again, is an issue which is not before the Court at this time and which would have to be decided in a subsequent proceeding if the Court should rule for Utah in the present proceedings.

And I might just very briefly remark in that connection, that while the report of the special master is in some minor respect possibly seems to rule on the reliction issue on the one hand in conclusion of law 18 or in the proposed decree to state that if the lake was navigable, Utah obtained titles to all lands within the meander line, I think it is clear and that counsel for Utah will agree that the issues are as I have stated.

The question of reliction remains open for future decision and if the lake was navigable on January 4th, the lands which Utah took at that time were the lands which were under the lake's waters at that time and not the lands which might have happen to be within the meander line which had been drawn at some earlier time.

Justice Potter Stewart: Does this mean Mr. Strauss, that if Utah should prevail here that the proposed decree of the Special Master would not be proper?

Mr. Peter L. Strauss: Well, I think it's question of construction, indeed whether the decree is inconsistent.

If it is susceptible to a reading then it's inconsistent with what I've stated.

This Court has always followed the practice in past of inviting proposals for decree after original cases and I -- we have been assuming it would do so in this case then we can confront the question at that time.

Now, if I may turn to the issue which is here as I've said, the only issue is whether the Great Salt Lake was navigable on the day that Utah became a State.

There were hearings in Salt Lake City before the Master.

Both oral testimony and numerous documents were produced and on that basis, the Special Master has prepared a lengthy report in which he concludes that the lake is navigable.

And while we dispute that final conclusion, I should make it clear as I think our brief does that on the whole we acknowledge that the report is correct and the statement to the fact strictly speaking of the case we think the Master has done an excellent job and don't mean by arguing legal points here to suggest otherwise.

We accept all the strictly factual findings made in the report and have made exceptions only the findings of law and to two of the findings of fact which in our view, embody essentially mixed questions of law and of fact.

We contend that the lake was not navigable for two reasons.

The first is that the lake presents such obstacles to navigation in its natural state that it could never be used as a channel of useful commerce and trade by water without improvements of an unusual extent being made.

And the second is that even if the lake were navigable, in fact, it lacks any connection in interstate or foreign commerce or trade and for that reason, it should be found not navigable in law.

Taking up the question of navigability in fact again, the parties are largely in agreement of what the underlying law is.

The proper test was first stated by this Court in the Daniel Ball in 10 Wallace and the Court said there that waters are navigable, in fact, when they are used or are susceptible of being used in their ordinary condition as highways for commerce over which trade and travel are or maybe conducted in the customary mode of trade and travel on water.

And I think the Court will find that the principal dispute here is what that word susceptible means.

Perhaps, some argument about the extent to which improvements may occur without departing from the ordinary conditions of waters.

And what the Court meant when it said, that they must be useful as highways for commerce.

The master did not find that the Great Salt Lake was actually in use as a highway for commerce on January 4, 1896.

He found only that it was capable or susceptible of such use.

Not counting excursion trips which have been made he found the boating uses of the lake have been more of a private nature rather than by individual contractors for hire, that's finding of fact 51.

In finding of fact 52, he's found no evidence to show that there was ever any regularly scheduled freight or passenger service operated on the lake.

So, the question is whether it's reasonable to believe that this lake in its ordinary natural condition could become a highway of commerce.

The master's report on the whole is a discussion of that question.

Justice William J. Brennan: Did he find what the ordinary and natural condition was, Mr. Strauss, for finding on that?

Mr. Peter L. Strauss: I -- he found that on that date, the lake was approximately 77 miles long and taking its greatest length about 33 miles wide and exposed approximately 100 and -- excuse me, 15,000 square miles of water and to the sun.

That its elevation, there is some confusion, I think there's a typographical error at one point but I think it's clear that he found that its elevation at statehood was 4,201 feet which would give it, at its greatest depth, the depth of 30 feet, an average depth of 13 feet.

We have submitted to the clerk and to counsel and asked him to distribute to you a small map of the lake to which I'll be referring later on in the --

Justice William J. Brennan: What I was really getting at it is what is meant by body of water in its natural state or condition as applied to this lake?

Mr. Peter L. Strauss: Oh.

Well basically, perhaps the simplest way to answer it would be to refer to this Court's decision in the Montello which involved the Fox River.

The Fox River was a body river which had water -- which had existed in nature.

Would transport boats of two-and-a-half foot depths down it for a considerable distance, although, there was some rapids and riffles to be gone through.

It had been improved by the time a case got to this Court, questioning whether it was a navigable waterway or not.

And in deciding whether it was a navigable waterway, the Court said, “We will not concern ourselves with those improvements, with those canals, ditches, locks and so forth, but rather with the river as it was when man found it, unimproved, unexcavated, entrenched” and the issue was whether in those circumstances, it could carry trade and commerce and the Court found that these boats of two-and-a-half foot depths carrying substantial loads of lumber and other goods, in fact, frequently ran the river engaging in commerce of a very substantial sort on it.

And so --

Justice William O. Douglas: A lot of the or to say a lot pf -- there are there few methods of I gather of traveling in very shallow waters and I remember down the everglades with these aired propel boats?

Mr. Peter L. Strauss: That's right, Mr. Justice Douglas.

Thankfully, again, 1896 perhaps is helpful to us in that respect that it's quite clear from the cases that the question of navigation is with the means of navigation which were available at the time and I don't believe that an airboat would have been available in 1896.

Justice William O. Douglas: That's pretty well settled, isn't it?

Mr. Peter L. Strauss: I believe it is.

I think it may also be -- I think another appropriate response to that of course one has today amphibious trucks of enormous dimension and hovercraft and the like.

Virtually no case which this Court has decided would not involve a body of water which couldn't be navigated by one or another of those crafts.

The United States versus Oregon, for example, the waters in those lakes were in some places only inches deep.

Quite plainly, one of these airboats could've navigated those waters as well.

Justice Potter Stewart: Of course here, the master very clearly found that as of the date of statehood in January 1896 the lake was physically capable of being used in its ordinary condition as a highway for floating and affording passage to watercraft in the manner over which trade and travel was or might be conducted in the customary modes of travel on water at that time.

Mr. Peter L. Strauss: That's correct, he did.

Justice Potter Stewart: And he went on to say, that the areas of the lake didn't have a depths sufficient for that purpose, was -- were not narrow or short channels but were several miles wide extending substantially through the length and width of the lake and covered an area of more than a thousand square miles.

Mr. Peter L. Strauss: That's right.

Justice Potter Stewart: That a vessel could travel from the one tip of the lake to the whole length of it, virtually on a straight line.

Mr. Peter L. Strauss: I think it might be appropriate at this time to refer to this map which I've asked the Clerk to distribute.

The think black outline, the thick line running around the periphery of the lake is the 4,200 foot line, it's a contour map, is approximately, slightly less, but approximately with the level that the lake was at statehood.

The thick blue line is approximately the level that the state, that the lake is today, again, somewhat less.

The white areas then, between the blue line and the black line are areas which have been exposed.

There is a -- since the time of statehood, there is a five-foot vertical difference involved between those two lines.

So that I think one can say that the waters to which the master was referring in the passage which you have read are the waters within the blue line and it can be seen that indeed those waters do run virtually from the northern tip of the lake, to virtually the southern tip of the lake.

I think it can also be seen, however, that along the eastern and western shores of the lake as the master also specifically found, in particular behind Stansbury Island and Carrington Island in the lower left, and the whole of the Bear River Bay and then Farmington Bay along the right, that there is a very wide expanse of land which has been exposed.

Now, to give you some notion of the extent of that land while the vertical scale here is five feet between the lines.

The horizontal scale is eight feet to the inch or each one eighth of an inch represents one mile in horizontal dimension.

I think the Court will see that there are considerable extents of water exposed -- of land exposed around the edge, where that horizontal scale is a quarter of an inch or greater.

Or in other words, where something on the order of -- takes something on the order of only a two-foot difference in depth over the course of a mile's horizontal distance and this is basically where the argument in the case rests.

It's true, one can go from one carefully selected point on the lake to another carefully selected point on the lake, but this is a lake and not a river.

With a river, one is only concerned with traveling the length of the river.

Crossing the river is never a very great concern so far as navigability is -- when navigability is an issue and has never been at issue in this Court's cases.

But we don't think a lake is very useful for commerce, when you can't get out of the lake to any place else and when you can only visit one or two places upon its shores, that in essence is the contention of the United States here.

Justice Potter Stewart: Does it have to be very useful in commerce in order to be navigable?

Mr. Peter L. Strauss: It has to be substantially useful.

There has to be a practical and permanent capacity for commerce.

Justice Potter Stewart: That's little different from being very useful for commerce, isn't it?

Mr. Peter L. Strauss: I think it comes well within the bounds of the United States' argument case.

Justice Potter Stewart: Very well, very well.

Mr. Peter L. Strauss: In its natural condition, there is a capacity for commerce only between that point on the southern shore, that point of the northern tip, and a few of the islands are now in a lake, an enormous body of water of this sort, it seems to us that that is not sufficient to establish navigability.

Of course, any boat could float on the waters of this lake if one could -- wants to get there.

But issue onto this Court's cases is whether anyone would have wished to put a boat there for commercial purposes and the cases that the Court has dealt with previously with some minor exceptions of the prior Utah decision is one of them.

The Court has been concerned with the great web of rivers and lakes which makes up the Mississippi Valley and the watershed of the Great Lakes.

And there really has been no question but that if a body of water connected into those bodies it would have been useful and would have been used.

Now, there have been decisions such as the prior Utah decision which involved segments of water, disconnected segments of water, and considered whether or not they were navigable, but I should point out there, that those bodies of water were in remote and unexplored situations, settlements had not grown up.

In essence, commercial use had not begun and the Court was very careful in those cases to say, that it was reaching its conclusion about navigability in part because the non-use of the waterway for commercial purposes could be explained by the absence of people, by the absence of development.

We don't have any such explanation here.

There were 200,000 people in the immediate vicinity of this lake on the day of statehood.

There are 500,000 people in the immediate vicinity of this lake today and yet it is not used for commerce.

It cannot be used for commerce without the improvements of such a massive scope as to make it clear that in its natural and ordinary conditions it is not susceptible of commercial use.

In these areas, we've been talking about --

Justice William O. Douglas: It's been heavily polluted?

Mr. Peter L. Strauss: Hmm?

Justice William O. Douglas: It is being heavily polluted, isn't it?

Mr. Peter L. Strauss: It is being heavily polluted, I certainly agree with that.

Justice William J. Brennan: Well, Mr. Strauss, this is on the premise, I suppose of what findings 45 which deal with harvesting of brine shrimp and 67 would still deal with the chemical compounds on the commercial that goes on in that connection.

Those do not show any commercial uses?

Those show commercial use in the -- those show commercial use in the same sense as one commercially uses a mine or a forest.

I don't think they show a commercial use in the transportation sense.

No.

Chief Justice Warren E. Burger: Does it have to be transportation?

Mr. Peter L. Strauss: I believe so.

Chief Justice Warren E. Burger: Where do we find that?

Mr. Peter L. Strauss: I believe it comes from the Court's decision in the Jonas Chief and the Daniel Ball.

Chief Justice Warren E. Burger: It's a decision for others, for hire, that's really what you are arguing isn't it?

Mr. Peter L. Strauss: That is essentially.

Chief Justice Warren E. Burger: As a common carrier?

Mr. Peter L. Strauss: I don't -- I would not say that -- I don't think that I would want to or that I have to take that argument to a complete, to a complete extreme, but I do think again, that on a historical view, these lands, or these waters rather were important because they provided a means for goods and people to get from place to place.

In way which would otherwise not be -- there would otherwise be no convenient way to do it.

The Great Salt Lake provides no such facility.

Now, the Court in --

Justice Byron R. White: May I get this very clear?

Assume an island in the lake that had a very valuable mineral deposit on it --

Mr. Peter L. Strauss: Right.

Justice Byron R. White: -- and the only way to get to the island was by boat.

Mr. Peter L. Strauss: Right.

Justice Byron R. White: The only way to get the minerals out was by boat --

Mr. Peter L. Strauss: Right.

Justice Byron R. White: -- and the lake was perfectly adequate to sustain that kind of transportation.

The minerals came from the island, onto the barge, straight to an interstate railroad car on the beach.

Is that navigability?

Mr. Peter L. Strauss: I think not.

Justice Byron R. White: Well, why not?

Mr. Peter L. Strauss: Well, I would have to take it down to -- I suppose, what may be a somewhat more prosaic, somewhat more prosaic description one may also imagine an island which is being used for farming purposes as there are in this lake, which is surrounded by a body of water, which is not navigable.

Let us say, if you are thinking about boats passing from the top of the river on down to some port in the bottom part, and yet, the family that farms the island has to get out there and they have a boat to do it and they row out and they row back.

The river to them is this --

Justice William J. Brennan: They bring their products out and back.

Mr. Peter L. Strauss: And bring their products out and back, of course they do.

Justice Byron R. White: Well, isn't that a -- that certainly is a commercial use of the water and it's being used for transportation of goods being taken to market?

Mr. Peter L. Strauss: It is being used for transportation of goods being taken to market, but I do feel that the Court's cases have been concerned with commercial use in a broader sense as in -- it might so well as, be a marsh, be a swamp, the one of these areas which is passable only by airboat.

The Court has in the past dealt with situations of such marginal navigability and it seems to me that as in the Utah case they have always been careful to be sure that such uses were taken as evidence and that the lake might be susceptible of commercial use but one looked to see whether ultimately it would become a public highway not a private road.

Justice Byron R. White: What if the -- what about a river that's used as a highway for getting logs to market?

Does that make it navigable?

Mr. Peter L. Strauss: I'm not entirely sure of it but I'm -- I will say that they are -- there are certainly are cases which have held that that was one use that showed that it --

Justice Byron R. White: If there is a valuable stand that timber on this island in the lake and they floated the logs over, it would be alright?

Mr. Peter L. Strauss: No.

No, it -- there's a very fine distinction, but it really comes to the point that the individual is -- has a choice about what means of transportation is going to employ and here is a body of water, and he chooses the body of water because of its convenient.

In United States versus Holt State Bank for example, one had a lake three to six feet deep and the Court quite carefully observed, well, there weren't many people who use this lake but really waterways were the established, the most convenient means of going from place to place.

It wasn't that the waterway was an obstacle naturally in this path which somehow had to be surmounted.

Of course, if the fact that the waterway is there and has to be gotten passed in order to mine the island or do the farming is sufficient to establish that it's navigable.

Why then, we are out of Court and that the report of the master ought to be affirmed.

Justice William J. Brennan: You said Mr. Strauss, I think earlier.

There has to be a proof from a broader use, in what sense were you using the word “broader”?

Mr. Peter L. Strauss: A substantial or permanent commercial use for the transportation of passengers and goods.

Justice William J. Brennan: Is this a matter of degree or a matter of what, general variety of uses or what?

Mr. Peter L. Strauss: To be sure, it's a matter of degree, I believe.

Justice William J. Brennan: Of degree?

Mr. Peter L. Strauss: That's right.

Again, I would say that in this particular circumstance, the fact that it is a lake and not a river seems to us of some significance that one has to deal with the whole of the circumference and not simply a matter of length of travel.

There is another issue of degree that is involved here and that is the question of dredging harbors or building piers.

One couldn't deny that in every harbor there must be some dredging done, there some piers built, but in substantial areas of the shore of this lake, a pier would have to be miles long just to be sure of having foot of water at one end and dry land at the other end.

And when it comes to building improvements of that kind, I think, one can say that the waterway in its natural condition is not usable.

Chief Justice Warren E. Burger: Mr. Strauss, the Great Lakes are lakes, they're considered rather good for navigation?

Mr. Peter L. Strauss: And they are.

They have cities employing millions.

They have countless boats flying their shores.

United States sought to make an offer of proof in the proceedings before the master of commerce on other inland land locked lakes in this country that offer of proof was refused.

Chief Justice Warren E. Burger: But wouldn't the great lakes be navigable even if they were not in fact a boat being used on them?

Mr. Peter L. Strauss: Of course.

Chief Justice Warren E. Burger: Because it's susceptible, capable of bearing navigation, isn't that the test?

Mr. Peter L. Strauss: It is susceptible and capable of bearing navigation, but in the sense that one may expect that navigation to be there that has some permanent and substantial use as this Court has put it.

The Great Lakes miles, excuse me, the Great Lakes' shores, do not change by one or two miles every season.

They do not change by four or five miles over the course of eight years in time as the lakes of the Great Salt Lake do.

It is possible to build permanent improvements there of a very much lesser extent that makes enables one to use it.

There is a much greater extent of shore line, much greater distance that one can go.

Justice Potter Stewart: Mr. Strauss, do you question the accuracy of the master's findings 48 and 49 on pages 42 and 43 of his report.

Mr. Peter L. Strauss: We have not accepted it --

Justice Potter Stewart: Showing a --

Mr. Peter L. Strauss: -- and so we do not.

Justice Potter Stewart: Showing more than a dozen or so modes or uses of water transportation on the lake?

Mr. Peter L. Strauss: No, we do explain -- we do explain those uses in the brief before the Special Master which is now before this Court and I think the Court will find that many of them occurred during periods of time when the lake was much higher than it is now.

But of course --

Justice Potter Stewart: Well, it was much higher than it is now, in 1896 when it became a State and that's a critical time, isn't it?

Mr. Peter L. Strauss: It was much higher than it was in 1896.

Justice Potter Stewart: Significantly higher in 1896 than it is now.

Mr. Peter L. Strauss: That's right.

Excuse me, I misspoke.

The boats were used at time when it was higher than it was in 1896, is what I meant to say.

Excuse me.

And we do not question that.

Justice Potter Stewart: You have a testimony of that woman, Zela somebody, who was born before the statehood, and grew up on Antelope Island until she was 12 years old.

Mr. Peter L. Strauss: That's right.

Justice Potter Stewart: And of course, I suppose people couldn't have lived and worked on that Antelope Island unless the lake were navigable, could they?

Mr. Peter L. Strauss: They couldn't have lived and worked on Antelope Island unless they could get from the island to the shores.

The fact that they went through --

Justice Potter Stewart: With their products.

Mr. Peter L. Strauss: With their products, that's right.

Justice Potter Stewart: With their livestock.

Mr. Peter L. Strauss: With their livestock.

It may be that what we are suggesting in some respects to go back to the Utah case and the prior Utah case, the Court held that part of the Colorado River was navigable and part of the Colorado was not navigable.

It is perhaps a harder operation to do with a lake than it is to do with a river, but it seems to us that the quality of the shores of this lake along the eastern side, along the western side, in Bear River Bay, there are those areas which are so shallow and have been so shallow for such a long period of time, that one may say, at least there that there is no susceptibility of use for navigation in the natural sense.

I would like to reserve the rest of my time for rebuttal, so I'll leave our second argument to the --

Chief Justice Warren E. Burger: Very well.

Mr. Jensen.

Argument of Dallin W. Jensen

Mr. Dallin W. Jensen: Mr. Chief Justice and may it please the Court.

First, I would like to state that Utah does agree that the issue of reliction is not before the Court at this time, that the question is one of navigability.

Utah further agrees that in order for the Great Salt Lake to be found navigable in January 4, 1896, it must have been navigable in its natural and ordinary condition.

We submit that the master so found.

We disagree with the United States in the interpretation of this language of susceptibility.

We believe it to be clear on the Court's language in United States versus Holt State Bank, United States versus Utah, that actual use at statehood is not required.

It is a capacity for use.

We believe, we showed a great deal more than a naked physical capacity, but we believe that that is all that was necessary.

That is does the body of water have sufficient length, width, depth.

Is it dependable?

Is it there year in, year out?

All seasons of the year?

Could it be used if the need arises?

In fact in the Holt State Bank case, the evidence was that Mud Lake as it was called, only enjoined -- enjoyed a very limited historical use and at the time of trial was drained and dry.

It had absolutely no future.

Consequently, any discussion as to what the future may hold as far as a build up of a commerce with boats going everywhere on the lake at various points is simply irrelevant.

Title either vested on January 4, 1896 in Utah or it didn't.

It has been floating, waiting for experience to show what the traffic will be on the lake.

This is why the Court has used and correctly so the very definitive test of susceptibility.

Secondly, we believe that of course, the actual uses demonstrate a susceptibility very well.

The master found a variety of uses.

He found the great many different kinds of boats that have been used on the lake both before and after statehood.

It's true, some were used for pleasure, but it's also true, some were used in business.

And again in United States versus Utah, this Court said that no matter what they use, it is still relevant to show the susceptibility.

The United States in the earlier case made the very argument, it's making here that well too many of these uses are private in nature as opposed to being paid for.

This Court rejected that argument.

Turning to the argument that there is no access to the like, that it is too difficult to get to, so that the otherwise usable capacity is made useless.

I would first refer to the map which counsel has submitted to the Court and point out that the Special Master found that Antelope Island had been continuously inhabited since 1848 and the witness which was spoken of earlier, Zela Walker Manning testified that she was born on that island in the early 1890's, lived there and that her testimony was that boats were used to transport livestock, household supplies, grain, farm equipment.

This is across the very area which the United States says its too shallow to navigate and that you can't get your boat to the shore or off in the shore.

The same as true of Freemont Island.

It has sustained a viable livestock industry.

Further as has already been noted, there are a number of places on the lake where the bed is deep.

We don't deny that there some pretty flat shores there and that there are some bogs, but again, we don't believe unlimited capacity is a requirement that you have to be able to get in at every spot.

Again, in United States versus Utah, this Court observed that the 65 miles of the Colorado River which it found to be navigable flowed through Rock Canyons for a large extent that had walls from 600 to 1,200 feet in height.

In the Mud Lake case, the Court concluded that that lake was navigable even though sand bars prevented the unrestricted use of the lake and here, the Special Master found that the shallow waters which are around the shore could easily be avoided by keeping into the navigable channels which he had found extended substantially throughout the length and width of the lake.

The point is that if someone needs to build a pier or build a harbor, there are some good spots to build them.

This is not the type of artificial construction which takes a case out of the navigability for title purposes and puts it under the Commerce Clause definition.

We're not required to dredge the channel, do a lot of improvements, there is just simply harbor access.

The Master found that there are very few natural harbors in the world and the one witness, in fact, the only witness who was an expert in navigation Mr. Thomas Lundy testified that he was familiar with many of the navigable waters of the United States as well as other parts of the world and was only aware of one natural harbor.

Mr. Lundy was associated on the Great Salt Lake for a period of two years, where he was involved in the design, construction and operation of a fleet of 39 boats and barges that were used to place a causeway fill across the lake.

And as a part of that project, it was necessary to construct a harbor on the Westside of the Promontory Mountains.

He testified that rather than being an impediment, that the lake was unusually susceptible in this regard because it was easy, it was inexpensive to construct the harbor because of the clay sediments which made up the bed, the lack of bedrock that they -- I think that he mentioned that the harbor was 400 by 1,500 feet.

He further testified that they had absolutely no maintenance problems.

The reason for this he said, is that the lake has no currents, so you don't the sediments moving back in like you do on most river systems and it is like you do in the harbors in the San Francisco Bay.

Again on access, the Special Master found that a number of piers and docking facilities existed at various points on the southern shore and on the eastern shore of the lake.

Justice Potter Stewart: Any at the time of statehood?

Mr. Dallin W. Jensen: Prior to statehood.

Justice Potter Stewart: Prior to statehood.

Mr. Dallin W. Jensen: Now, Saltair was built in 1893.

The evidence specifically was that it was used for commercial or excursions, pleasure boats but commercial excursions and that at times, the livestock on Antelope Island were shipped to the pier at Saltair.

Justice Potter Stewart: Is Saltair where they use to have the amusement park right in the --

Mr. Dallin W. Jensen: Yes, Saltair is the old pavilion where they have the dance hall out over the lake and where the lake probably got primarily known for its ability for people to get in and float around.

I think it came from -- its fame from that came from Saltair which was built at that time.

Justice Potter Stewart: Is anybody -- can anybody swim in the lake anymore?

Mr. Dallin W. Jensen: Yes, there are three beaches on the lake now.

They are open.

They operate again commercial excursions out on the lake.

They are swimming in it.

The State park, they're building a state park on Antelope Island on the north tip and in fact is constructing a 200 boat marina there.

So, brine shrimp industry, though not to compare with the commerce on the Great Lakes, it's there, the livestock industry is still there.

Scientific investigation is going on.

There's evidence in the record that there are minerals west of the lake, under the possibility of oil and gas under the lake, Minerals in the brines and solution, the waterfall areas.

So to characterize the lake as a desolate forlorn pond of water just simply is not so.

We believe the lake does have a great future, in fact that it's just moving into that phase.

We think the pleasure boating and the access that will be needed for that will is very important.

The Government's argument that the lake maybe partially navigable; this is the first time we've heard it.

It was not advanced below.

It's not part of the master's report.

It was never presented to him and we submit the lake is either navigable or it isn't and the fact that has some shallow areas does not mean that you carve out those portions.

It just means that they may be somewhat of an impediment but they're not great enough to destroy the navigable capacity of the lake.

Justice John M. Harlan: You mean that by reason of the procedural aspect now, we are bound to hold that the lake is fully navigable or is -- and is not partially navigable?

Mr. Dallin W. Jensen: It would seem to us that that is so -- there was never an issue on this.

There was no evidence toward it to a partial navigability as opposed to non -- as to full navigability and we, of course, submit that it's fully navigable.

Chief Justice Warren E. Burger: Well, I suppose the Atlantic Ocean is not navigable in certain spots when you get near the shore?

Mr. Dallin W. Jensen: I would think so, you'd get to the rocky cliffs and so forth.

That's why we say we don't believe you have to have unlimited access to a body of water to make it navigable, you can get a boat in at every spot.

It simply has to be useful.

I think this is a term the Court has used in practical and that we think that lake lends itself to that.

Justice Potter Stewart: What's the draft of the ship like the Queen Mary, do you know, 30 feet?

Mr. Dallin W. Jensen: Probably, the barges which were used to place the causeway fill had the dimensions of 250 feet in length, 50 feet in width, had a carrying capacity equivalent to 90 railroad cars and drew twelve-and-a-half feet of water on the lake.

Justice Potter Stewart: Twelve-and-a-half.

Mr. Dallin W. Jensen: Of course --

Justice Potter Stewart: The depth at the time of the statehood it was 30 feet, wasn't it?

Mr. Dallin W. Jensen: Right.

Justice Potter Stewart: From one end of the lake to the other of great width of channel that was (Voice Overlap)

Mr. Dallin W. Jensen: Yes, the Master said they extended a substantially throughout the length and the width of the lake.

Justice Potter Stewart: Right.

What I mean wide channels as well?

Mr. Dallin W. Jensen: Yes.

Yes, the center channel is very wide; many, many miles wide.

It's not a channel like a river.

It's much, much wider than that.

Justice Byron R. White: Is there a different -- do you suggest there is a different rule with respect to navigability where the issue is state ownership of the river bottom and the lake bottom and where the issue is navigability for the purposes of congressional power?

Mr. Dallin W. Jensen: Yes, there's no question about that.

Justice Byron R. White: There is a different rule?

Mr. Dallin W. Jensen: You bet.

Justice Byron R. White: And what?

Mr. Dallin W. Jensen: The Commerce Clause definition is that, if it's either navigable or can be made navigable that is you could -- you got a river and that may be it's got a lot of sand bars in it that you can take your dredges in and clean them out well, you then have got a navigable channel, but the navigability for title purposes is natural, ordinary conditions, that is the language of this Court.

And we don't contend for the more generous test -- never have and the master didn't find, finding of fact 31 says, in its ordinary condition and in his preface to the findings, he said it must be navigable in its natural state and future improvements are not to be taken into account.

Justice Byron R. White: What is the case that's closest to this for title purpose?

Mr. Dallin W. Jensen: I think there are two very close, the Mud Lake case or the Holt State Bank case is a lake and it did not have anywhere near the size of the Great Salt Lake and --

Justice Potter Stewart: Well, the former Utah cases --

Mr. Dallin W. Jensen: In the former Utah case, U.S. v. Utah --

Justice Potter Stewart: Well, it was the river, you rather like the law expressed in that case, don't you?

Mr. Dallin W. Jensen: Yes, on the Government's interstate argument, we believe that the former Utah case is conclusive on it.

Justice Potter Stewart: Well, as well as the question of navigability in fact in that case even though was the river or parts of the rivers?

Mr. Dallin W. Jensen: Right, the -- it was undisputed that the parts of the Colorado and the Green Rivers which were found to be navigable were navigable only intrastate, only within the boundaries of the state of Utah, but --

Justice Potter Stewart: And that there were many impediments to that case?

Mr. Dallin W. Jensen: Many impediments, flooding at times caused problems.

There was debris, ice during times of the year and the most serious impediment, the shifting sand bars that these would cause the water to spread out, loose its depths and in that case, the evidence was that a good portion of the year, the water was only three feet deep, much, much less deep than the waters of the Great Salt Lake but still navigable.

And that again, the shifting sand bars caused the channel to divide and shift around.

But nevertheless, the water is found to be navigable.

In fact and again as I was saying, the Court said that under the equal footing doctrine, because they were navigable, in fact, they were Utah's property and it was clear that the Court was not announcing or applying a new concept or a new doctrine.

This principle was already well-established by prior decisions of this Court.

Utah further suggests on the question of interstate navigability, the argument of the United States on interstate navigability that whatever doubts may have existed before they were removed by the passage of the Submerged Lands Act, that the legislative history of that Act makes it very clear, that Congress was confirming and ratifying title in the states to inland waters which were intrastate and which were navigable in fact.

So in summary, Utah would submit that the report, the findings of the Special Master are fully supported by the facts of the case that he did apply the correct rules of law, correct rationale of prior decisions of this Court and that his report and decree should be sustained.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Jensen.

Mr. Strauss, you have one minute left.

Rebuttal of Peter L. Strauss

Mr. Peter L. Strauss: I would only say very briefly while it's evident that this is the best of close case for United States.

Still, I think, the Great Salt Lake is distinguishable.

It's a matter of proportion in the Atlantic Ocean or some similar systems.

This is lake which is only 80 miles in its maximum dimension and to use it in most places you must build a pier or dig a channel that is mile-and-a-half or two-and-a-half miles long then I suggest that that is sufficient to show that the lake is not useful in its ordinary condition as a highway of commerce.

The passage in the Utah case which to which counsel referred, which did make reference to private uses went on to say, that it did so because conditions of exploration and settlement explain the infrequency or limited nature of the use and now, the Great Salt Lake has no such excuse.

It was well settled at the time.

It is well settled now.

It has never had any permanent use for the transportation of goods or passengers from place to place except in those few situations where it was rendered absolutely necessary by the geography of the situation.

Transportation on the lake has never been a matter of choice.

If I may just one technical matter, if it please the Court, my search of the records did reveal that you have no copy of the transcript.

This is our copy of the transcript which I believe is unmarked.

Chief Justice Warren E. Burger: Well, if you, kindly lodge with the clerk.

We'll see that it's returned to you in due course if you wish.

Mr. Peter L. Strauss: Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Strauss.

Thank you, Mr. Jensen.

The case is submitted.