UNITED STATES v. FLORIDA
Legal provision: Submerged Lands Acts
Argument of Keith A. Jones
Chief Justice Warren E. Burger: We'll hear arguments next in United States against Florida, 52 original.
Mr.Jones you may proceed whenever you're ready.
Mr. Keith A. Jones: Mr.Chief Justice and may it please the Court.
This case is a consolidated proceeding that resembles in several respects, each of the two immediately proceeding tidelands cases.
Like United States against Maine, this case presents the broad constitutional question whether the separate coastal states have the constitutional right wholly independent of the Submerged Lands Act to exploit the resources of the Outer Continental Shelf.
And like United States against Louisiana in which argument was heard yesterday, this case presents number of narrower statutory questions pertaining to the application of the Submerged Lands Act to particular coastal area.
Although, the preceding arguments have discussed at some length, the history of tidelands litigation in this Court, I think that in order to put this case in context, it would be helpful briefly to recapitulate that history here.
The history of tidelands litigation has two strands, one constitutional and one statutory.Both of those strands are interwoven in this case.
Constitutional strand begins with this Court's decision in United States against California in which it was held that the United States and not the separate coastal states had the right to exploit the seabed resources of the three-mile marginal sea.
That principle of federal maritime paramountcy was confirmed and extended to the Outer Continental Shelf in this Court's decisions in the Louisiana and Texas cases in 339 U.S.
Shortly after those decisions, the Congress enacted the Submerged Lands Act and the Outer Continental Shelf Lands Act in which it had allotted the seabed rights of the territorial sea, generally speaking, to the separate coastal states and the seabed of the Outer Continental Shelf to the United States.
The Atlantic coast states, including the State of Florida now claim that they have a constitutional right to all of the seabed rights of the Outer Continental Shelf, and that the principle of federal maritime paramountcy announced by this Court in California was wrong.
They claim that the Submerged Lands Act and the Outer Continental Shelf Lands Act are unconstitutional insofar as they deny the states the right to exploit the resources of the Outer Continental Shelf.
However, the other Atlantic coast states based their claim on British maritime history in colonial maritime history as we've just seen.
State of Florida however bases its claim not on such history, but rather upon its 1868 constitutional boundary.
Since the claim is Florida, we're so different from those of the other Atlantic coast states.
This case was severed from that of United States against Maine and tried separately before the Special Master.
That is the background of what might be called the constitutional aspect of this case.
The statutory aspect of the case derives from this Court's decision in United States against Florida, 363 U.S. 121 that the state is entitled under the Submerged Lands Act to the seabed rights within its historic boundary in the Gulf of Mexico out to a maximum of three marine leagues from the coastline.
Since the state is only entitled to three miles and not three leagues in the Atlantic Ocean, this Court retain jurisdiction to determine the location of the line separating the Atlantic Ocean from the Gulf of Mexico and also to define the state's coastline in the gulf.
Those statutory issues where consolidated with the constitutional issue and tried together before the Special Master.
The Special Master rejected Florida's constitutional claim as incompatible with this Court's decisions in the California, Louisiana, and Texas cases.
It concluded that the state is entitled only to those seabed rights granted in the Submerged Lands Act.
The Special Master defined the line separating the Atlantic Ocean from the Gulf of Mexico as a line running due north from Cuba to the Dry Tortugas Islands, the outer islands of the chain of keys and then following along, the outer curve of the keys up to the mainland.
He then held that the state was entitled to seabed rights out of three miles to the east of the mainland itself of the keys into three leagues in the Gulf of Mexico, north of the keys and west of the mainland.
Chief Justice Warren E. Burger: Where is Key Biscayne in that --
Mr. Keith A. Jones: Key Biscayne is not on this map.
It's approximately here.
That Key Biscayne is just south of Miami Beach.
This map I might say is it --
Chief Justice Warren E. Burger: The Key is almost part of the mainland I take it.
Mr. Keith A. Jones: This map is a trifle misleading.
This body of land is in fact the Key Largo which is a separate island that it separated from the mainland by only a very narrow stream of water.
So narrow that it was impractical to represent it on the map, but it runs right along here so that the mainland in fact would run in that manner.
Perhaps the principle question disputed before the Special Master was the location of the coastline in this area, north of the keys and the state had contented that a line running from the Dry Tortugas up to Cape Romano on the mainland mark the seaward limit of its inland waters.
It claimed this large roughly semi-circular body of comparatively deep water in the Gulf of Mexico was in fact the historic bay, and therefore in the waters of the states.
Justice William H. Rehnquist: Mr.Jones, how would be the approximate length of a line, straight line drawn from the Dry Tortugas to Cape Romano?
Mr. Keith A. Jones: I think it's in the nature of the about a 100 miles.
The scale as you can see is 30 miles.
Justice William J. Brennan: Its nautical miles?
Mr. Keith A. Jones: 30 nautical miles.
So, it looks like roughly 100 nautical miles.
The Special Master rejected that contention of the state but held sua sponte that the eastern portion of the bay marked by a line running from night key up to the mainland.
The east cape of Cape Sable was a juridical bay.
That line is approximately 24 geographic miles, actually a little bit more than 24 miles.
The Special Master also held sua sponte that the outer islands, the Tortugas, the Marquesas and the Lower Florida Keys should be in circle by baselines and he denominated the waters within the baseline so described as inland waters of the state.
The state here accepts to virtually every one of the Special Master's major determinations.
The United States accepts only to the use of closing lines and of baselines in the area of the Florida Bay and the outer island to measure the Submerged Lands Act grant and to mark the inland waters of the state.
I turn now to the discussion of the exceptions made by the parties.
I will take up first the issue that this case has in common with United States against Maine; that is the broad constitutional question of whether the state possesses a right to exploit the resources of the Outer Continental Shelf without regard to any limits imposed by the Submerged Lands Act.
The other Atlantic coast states in United States against Maine claimed the entire Outer Continental Shelf.
If this Court should contrary to our submissions in that case decide to overrule the California decision and decide the case in favor of the states, Florida presumably will advance similar claim to the Outer Continental Shelf under the equal footing doctrine.
But any issues under the equal footing doctrine are not presented here, in Florida in this litigation claims not the entire continental shelf but only that portion of it within its historic maritime boundary.
That boundary even under the states rather generous description encompasses considerably less than the entire continental shelf.
Historic boundary upon which --
Justice William J. Brennan: Just at seaward, how much less?
Mr. Keith A. Jones: Pardon?
Justice William J. Brennan: Just at seaward, how much less?
Mr. Keith A. Jones: Well, the continental shelf varies in width from as little as six miles to as much as I think 200 miles.
Their historic maritime boundary even at most generous description of it would not I think extend more than 30 miles offshore at any point.
So that at least at some portions of the coast, it would be considerably less than the entire Outer Continental Shelf.
As I say, the historic boundary upon which the state relies is that set forth in its 1868 Constitution.
Now, it's a good deal of argument before the Special Master as to the actual location of that boundary line and I do not propose to renew that argument here.
It's discussed at length in the Special Master's opinion in our briefs and I rely upon that discussion here.
One reason I don't discuss the actual location of the boundary is that in the view, we take of this case the state's historic boundary as largely irrelevant to the proper allocation of seabed rights, that's between the state and the United States.
I would say however that both parties agree that at least one point along the coast, the area of water between the Marquesas Keys and the Dry Tortugas, the states historic boundary did extend beyond the maximum limits of the Submerged Lands Act, so that even under the more restrictive view, we take of the states historic boundary.
They would if this Court decided the constitutional issue in their favor be entitled to some seabed rights in addition to what was granted under the Act.
But that fact we think does not avail Florida here.
In the first place, this case is foreclosed.
The states constitutional claim is foreclosed by the California decision.
This case is on all force with the California.
Like Florida, California had a maritime boundary that had been approved by Congress.
This Court held that that congressional approval of the boundary authorized the state to exercise certain local police power functions in the area of the marginal sea encompass by its historic boundary.
But that those functions did not detract from the federal Government's paramount rights empower over that area.
The Court reasoned that the United States had acquired the seabed rights or had acquired the marginal sea in the exercise of its foreign affairs and defense powers, and therefore that the United States and not the separate coastal states where entitled to the seabed rights within that marginal sea.
The Solicitor General of the preceding cases set forth our reasons why this Court should adhere to its California decision and I will not elaborate upon that argument here.
My only point is that if this Court does adhere to its California decision, nothing more need be said with regard to Florida's constitutional claim.
But even if this Court did depart from its consistent pattern of tidelands decisions and overrule California in the principle of federal maritime paramountcy for which its stands, Florida's claim would still have to be rejected.
The reason for that is that in 1962 after enactment of the Submerged Lands Act, the state formally relinquished by constitutional amendment any claim that might otherwise had to seabed rights seaward of the maximum limits of the Submerged Lands Act.
That 1962 constitutional amendment replaced Florida's 1868 boundary on which it relies here with a more clearly defined boundary that corresponds precisely with the maximum limit of its Submerged Lands Act grant.
That new boundary would mark the outer limits of any permissible constitutional claim other than under the equal footing doctrine that Florida could make.
Thus there's no theory of law in this case under which Florida's claim could be sustained.
Therefore, I turn to the questions relating to the application of the Submerged Lands Act to the facts of this case.
The first of these questions might be stated as “Where is the Gulf of Mexico”, or more precisely, “What is the line separating the Gulf of Mexico from the Atlantic Ocean for purposes of the Submerged Lands Act?”
There's really very little to be said on this question because the evidence is essentially all along the federal Government side.
It's true that Congress in enacting the Submerged Lands Act did not purport to define those two bodies of water.
There's nothing in the legislative history that suggests what Congress intended.
But cartographers, geographers, explorers, historians, and other writers have all agreed that the line running due north from Cuba to the Dry Tortugas, and from there, following the outer curve of the Keys to the mainland is the maritime border between the Atlantic Ocean and the Gulf of Mexico.
That is the line set by the International Hydrographic Bureau.
That is the line fixed by all geographers and cartographers as the evidence before the Special Master showed, and the state presented absolutely no evidence whatsoever that would suggest that Congress intended any other line.
Indeed, shortly after enactment of the Submerged Lands Act, the Florida legislature itself with specific reference to the Submerged Lands Act stated in legislation that the Florida Straits, Straits of Florida there, are an arm of the Atlantic Ocean, not of the Gulf of Mexico as the state claims here.
It's only when this litigation began that the Florida legislature realized that perhaps it had acted adversely to its own litigating position and revoked that Act in 1971.
But the Florida legislature's enactment in 1955 is clear evidence of the common understanding of where the dividing line between the Atlantic Ocean, the Gulf of Mexico was from Congress enacted the Submerged Lands Act.
Justice Potter Stewart: Mr.Jones, what's the lettering right about Straits of Florida?
Does it say Florida Keys, is that what that says?
Mr. Keith A. Jones: Yes, Florida Keys.
Justice Potter Stewart: Right.
Mr. Keith A. Jones: We refer loosely to the Florida Keys sometimes as the entire chain of violence out the Dry Tortugas and sometimes only to those islands terminating here.
Justice Potter Stewart: Was the Key West?
Mr. Keith A. Jones: Key West actually is right here.
Justice Potter Stewart: There.
Mr. Keith A. Jones: And these are the Marquesas Keys and then the Dry Tortugas.
Justice Byron R. White: We decided against you on the constitutional question would be -- have this issue as to where the Atlantic and the Gulf are?
Mr. Keith A. Jones: Well, if you decided against the United States in this case on the constitutional question, then you wouldn't have to decide the dividing line between the Atlantic and the Gulf, that's correct.
You would simply make reference to the state's historical boundary, and there is no disagreement between the state and the federal Government as to its historical boundary south of the Keys.
On short, we believe that the Special Master's determination of a line dividing the two bodies of water, the Atlantic Ocean and the Gulf of Mexico is firmly grounded in the evidence and reflects the common understanding on which the Submerged Lands Act was based.
The remaining questions in this case all relate to the definition of Florida's coastline in the general area of the Florida Keys.
The state claims that this large body of water marked by this closing line is a historic bay and it is inland waters of the state.
We believe that it's clear that there's no foundation either in fact or in law for that claim.
To the contrary, the federal Government has affirmatively and decisively disclaimed any historic title in that area.
Before this issue even arose in litigation, the federal Government had distributed to foreign Governments maps showing that the United States territorial sea in the area of the Florida Keys was measured three miles out from the natural shoreline, and that representation of course was wholly inconsistent with the existence of the historic bay.
Necessary inference of the maps which we distributed was that United States claimed no historic bay in that area.
We believe that in -- that a disclaimer of that kind disclaimer made to foreign governments in advance of any domestic litigation should be given preclusive effect.
We think that in the face of that disclaimer, Florida's contrary claim was barred as a matter of law.
But even if the disclaimer is not given preclusive effect in that kind, in nevertheless, imposes upon the state the burden of proving its historic title is clear beyond doubt.
The standard applied by this Court in the Second California case.
That is clear that the state's evidence did not meet that standard.
Under this Court's prior decisions, the state would have had to show three elements to prove its historic title.
It would have had to show that it had made a claim, a long standing claim.
Second, it would have had to show that accompanying that claim had been the continuous assertion of sovereign authority.
And third, that there had been for an acquiescence expressed or tacit in that claim.
The states evidence felt for short for making any of the three necessary showings.
As to the existence of a claim, the state relied almost exclusively upon its 1868 constitutional boundary.
But the Special Master found that that boundary in fact did not run along the line claim by the state.
It is the seaward limit of its inland waters, but rather ran along the inner perimeter of this area, and that construction we believe is based upon a solid reading of the constitutional language of Florida's boundary upon the evidence of contemporaneous activities in the area of the Keys adduce before the Special Master.
The reasons we would present for supporting that boundary or set forth in our brief and also the Special Master's report, I do not repeat them here.
It suffices to say that if this -- if that construction is accepted, Florida's claim of historic title is necessarily defeated.
Moreover, we believe that Florida's evidence with respect to the other two requirements of historic bay it was if anything even weaker.
That evidence again is recounted in the Special Master's report and in our briefs in this case.
I won't repeat it here.
I will only point out that United States did clearly establish before the Special Master and the state concedes here in its brief at page 48 of its opening brief that foreign ships have fished, do fish, historically have fish and do fish in the Florida Bay without any interference whatsoever by the State of Florida.
Justice William H. Rehnquist: Didn't Governor Kirk and the Florida Navy out once a few years ago have copped some foreign fishermen?
Mr. Keith A. Jones: He may have but any such excursion was unsuccessful.
It was the state itself recognizes.
They testify that they had never attempted to interfere with foreign fishing in the Florida Bay.
The Governor may have threatened to do that.
That threat may have been -- made in connection with this litigation.
Nevertheless, there has been no active interference with Florida -- with the foreign fishing in the Florida Bay, and that fishing continues to this day.
Certainly, there is been no foreign acquiescence of any claim.
The Governor Kirk's announcement at most would have shown that there was a claim made in the 1960's and not sufficiently ancient to show historic title.
That disposes we believe of the states historic claim in this case.
I now turn to the status of the eastern most portion of that bay which we feel requires a somewhat more complex analysis.
Florida did not contend before the Special Master that the eastern most portion of the bay was a juridical bay and almost no evidence was introduced before the Special Master on that point.
The Special Master nevertheless found that a portion of Florida Bay which I will demonstrate by this piece of red tape of the map, that the portion of the bay, east of that red line constitutes a juridical bay, and therefore inland waters of the states.
Justice Potter Stewart: Mr.Jones, on the maps of the area, you have -- are they similar to your designation there, Florida Bay, you have there just the eastern most point or what are they, what do they show?
Mr. Keith A. Jones: The official maps, I frankly don't know.
I gather that the designation Florida Bay is rather usely -- loosely used, and I don't think that there's any particular outward limit expressed.
The graphic department of the Justice Department did this map and simply put the designation Florida Bay in to make it more understandable to the Court.
Justice Potter Stewart: How about the --
Mr. Keith A. Jones: The state of course calls the entire area out the wider, longer redline Florida Bay.
Justice Potter Stewart: How about the -- yes, the official maps, the coast and geodetic survey --
Mr. Keith A. Jones: I don't think they designate a Florida Bay.
Justice Potter Stewart: You did -- there is such a thing as the Florida Bay?
Mr. Keith A. Jones: Well, as I say, it's loosely used and I don't know exactly what the designation would be or where.
It could for example refer to this portion or to this line --
Justice Potter Stewart: You could be any of those, that's the reason I want to ask what, is it generally consider to be?
You may've look ways -- the eastern coast guard there.
Mr. Keith A. Jones: Opposite, page 84 in the Special Master's opinion is a map in which the phrase “Florida Bay appears immediately to the east of the line drawn by the Special Master.
And whether the line drawn by the Special Master or one further seaward might have been intended by that designation is of course unclear.”
The problem of course is that Florida Bay as such has no official meaning and no --
Justice William J. Brennan: Who prepared this map?
Mr. Keith A. Jones: That is a coastguard map.
Justice William J. Brennan: Coastguard.
Justice Lewis F. Powell: Mr.Jones --
Justice William J. Brennan: -- superimposed or anything.
Mr. Keith A. Jones: That's correct, that's correct.
The lines drawn on the map are -- were evidence before the Special Master.
Justice Lewis F. Powell: Mr.Jones, has foreign fishing been allowed in the eastern most portion of this bay?
Mr. Keith A. Jones: I can't answer that specifically.
You mean in the area east of the juridical bay line drawn by the Special Master?
Justice Lewis F. Powell: Yes, east of the redline --
Mr. Keith A. Jones: Yes, it has.
Part of that area has historically been regarded as high seas.
Justice Lewis F. Powell: That's been regarded as part of the high seas?
Mr. Keith A. Jones: That's correct.
Justice Lewis F. Powell: Can you indicated roughly with your point of?
Mr. Keith A. Jones: Actually, I think the -- I believe opposite page 94 of the Special Master's (voice overlap) I think so.
The solid connected line on that map represents the territorial sea and the dotted line, indention dot line represents the juridical bay line drawn by the Special Master.
As you can see, it's seaward in some places of the territorial sea.
Thereby encloses part of the high seas.
Justice William H. Rehnquist: When you say territorial sea with to that map you just come out, just -- what do you mean?
Mr. Keith A. Jones: That's the three-mile marginal sea claim by the United States as its territorial sea.
Seaward of the three-mile territorial sea --
Justice William H. Rehnquist: That certainly doesn't seem to be just --
Mr. Keith A. Jones: That --
Justice William H. Rehnquist: -- within three miles from dry land.
Mr. Keith A. Jones: No, it is.
Its three miles from islands within the eastern portion of the bay, though some of those islands may be so small that they don't show up on the map, indeed, some of them maybe areas of land that are covered at high tide.
Nevertheless, that is a three-mile zone drawn from land and not by reference points that are wholly covered by water.
Justice William J. Brennan: What's the distance from what the Government -- so as I gather natural shoreline in the Master's redline, much to that?
Mr. Keith A. Jones: There is a scale on this map --
Chief Justice Warren E. Burger: Well, the Master is what appeared to be about the same as your 30-mile legend, does it not?
Mr. Keith A. Jones: Well, let me try to determine this.
I think that roughly speaking, it would be between one and five or six miles from the --
Justice William J. Brennan: Shoreline?
Mr. Keith A. Jones: From the three-mile -- I'm sorry.
What was the question, the difference between --
Justice William J. Brennan: From the shoreline to the Master -- where you drawn that smaller red line with the Master to making it a juridical bay.
What I'm really getting at is on the Government's submission, the marginal sea ends where within the line that the Master do?
Mr. Keith A. Jones: Well, this is -- again set forth on the map office at page 94.
Justice William J. Brennan: 94?
Mr. Keith A. Jones: Yes, in the Special Master's report.
And I think that the line drawn by the Special Master's at all points within six miles of the natural shoreline.
Justice William J. Brennan: And not where the Government's submission is that it should not belong to the three -- more than miles?
Mr. Keith A. Jones: Under the Government's position, there should be no juridical bay.
Justice William J. Brennan: I know, but the marginal sea would --
Mr. Keith A. Jones: The marginal sea should be only three miles from the shore, that's right.
Justice William J. Brennan: And the Master's line takes at six miles?
Mr. Keith A. Jones: That's correct.
Justice William H. Rehnquist: Well, but that -- wasn't an entirely accurate --
Mr. Keith A. Jones: No, that's right.
It's not entirely accurate.
Let me amend that.
The Special Master's closing line of the juridical bay is utmost about six miles from the natural shoreline, but -- then the territorial sea would be three miles further seaward of that line, so although less than nine miles perhaps.
Justice William J. Brennan: Yes.
Mr. Keith A. Jones: But for reasons, I will discuss in a moment, we believe that the Special Master's finding the juridical bay was erroneous that before discussing that point, I wish to draw the Court's attention to the fundamental and clear legal error that the Special Master made in drawing the Submerged Lands Act to grant from the juridical bay closing line.
In our view, that line, that grant has to be drawn from the natural shoreline of the state.
Now, we rely here upon this Court's holding in United States against Louisiana, 389 U.S. 155 that historic boundaries that are measured from the coastline such as Florida's boundary in this area must be measured for Submerged Lands Act purposes from the historic coastline.
And it is clear that this juridical bay closing line is not the historic coastline.
Justice William H. Rehnquist: You're referring -- you say Louisiana 389, do you mean 339?
Mr. Keith A. Jones: No, 389 --
Justice William H. Rehnquist: 389 --
Mr. Keith A. Jones: 155.
Justice William H. Rehnquist: That would go what the second --
Mr. Keith A. Jones: Well, actually that case, maybe a misnomer because it involved Texas.
There are a number of states but the claim was that the construction of a jetty a new coastline and that the historic boundary could be measured out from that jetty and the court held that no, it could only be measured from the historic coastline and not from the new 20th century coastline.
Justice William H. Rehnquist: Mr. Justice Stewart's opinion in 384 U.S.
Mr. Keith A. Jones: Oh!
That however is the opinion that I meant to refer to.
Justice Potter Stewart: There's one involving it to the jetty.
I thought that was a California, wouldn't it?
Mr. Keith A. Jones: But there was -- it involved the State of Texas.
Justice Potter Stewart: Yes.
The caption of the case is United States against Louisiana --
Mr. Keith A. Jones: That's what I --
Justice Potter Stewart: -- somewhat misleading the --
Mr. Keith A. Jones: Yes, that's why I -- (Voice Overlap)
Justice Potter Stewart: It was written by Justice Harlan was it?
Mr. Keith A. Jones: I'm not certain Mr.Justice Stewart.
Justice Potter Stewart: I'm not certain, but I think so.
Mr. Keith A. Jones: That's my understanding.
I may have gotten my numbers confused and I haven't look at the decision for sometime.
I must confess.
Justice Byron R. White: Why don't still go -- quite understand that the Government's point, do you think the -- whether that's a juridical bay or not --
Mr. Keith A. Jones: We believe that's irrelevant to the determination, the Submerged Lands Act grant.
Justice Byron R. White: And you say that's generally true or --
Mr. Keith A. Jones: No.
Justice Byron R. White: -- or just because of Florida?
Mr. Keith A. Jones: Only in this case --
Justice Byron R. White: I had the understanding the generally, you would measure the marginal sea from the outer line of a juridical bay.
Mr. Keith A. Jones: That's correct.
But here, we're saying that the Submerged Lands Act is only measured from the historic coastline when you're measuring it by reference to historic boundary.
And I will go --
Justice Byron R. White: You think under the Submerged Lands Act that time is you do measure it from the historic boundary?
Mr. Keith A. Jones: There's no question about it.
Justice Byron R. White: I mean always?
Mr. Keith A. Jones: But not always.
Justice Byron R. White: If you measure it from there?
Mr. Keith A. Jones: You would measure it from the current coastline if three miles from the current coastline was further seaward than three leagues from the historic coastline.
Now, the reason that this juridical bay closing line is not the historic coastline is that it's based upon the 1961 convention on the territorial sea in a contiguous sum which first permitted the 24-mile closing line.
This closing line is roughly 24 miles, actually a little longer, and therefore invalid under the convention.
But prior to 1961, this nation recognized that most 10-mile closing lines for juridical bays, and in the 19th century, they recognized only two marine league closing lines.
A closing line of that length would make a juridical bay approximately in that area.
Now, the historic coastline would not be defined by reference to any closing line such as that, but by reference to the natural shorelines of the islands lying to the west of that closing line in the Florida Bay.
Now, our submission here is that the states, Submerged Lands Act grant must be measured by reference to its historic boundary which in turn is measured by reference to the historic coastline and not to any new modern juridical bay closing line.
Justice William J. Brennan: Excuse me again, Mr.Jones.
I now have the other case.
In 389, well that's what Mr. Justice Black wrote this one and that one held that Texas claim under the three-league grant. (Voice Overlap)
Mr. Keith A. Jones: That's correct, in the Gulf of Mexico, that's right.
Justice William J. Brennan: -- must be measured by the boundary which existed in 1845 when Texas entered the union and cannot be measured from artificial jetties built along thereafter.
Now, you apply that principle here, how to say that must be measured --
Mr. Keith A. Jones: The principle is that it must be measured by reference to the historic boundary which is determined as of 1868.
Justice William J. Brennan: And therefore, it cannot be measured from a line that the --
Mr. Keith A. Jones: Special Master do.
Justice William J. Brennan: -- Special Master do.
Mr. Keith A. Jones: -- because that line was based upon the 1961 convention which first permitted 24-mile closing line.
Justice William J. Brennan: Yes, but you're -- we're governed here by the language of the 1953 statute that Congress enacted.
Mr. Keith A. Jones: That's right.
Justice William J. Brennan: And how is this different from the --
Mr. Keith A. Jones: Oh, because --
Justice William J. Brennan: -- the Louisiana boundary case.
Mr. Keith A. Jones: The Submerged Lands Act only permits the state three leagues within the Gulf of Mexico, within its historic boundary.
So, you have to fix the historic boundary.
To fix the historic boundary, you have to look at where it would have run out in 1968 from the coast, and you measure -- you determine the coastline in 1868 as of the -- on the basis of the principles of law that appertained at that time.
The principles of law at that time would not have permitted a juridical bay closing line of this kind.
You have to measure the coastline, therefore, by reference to the natural shoreline of the islands and measure the historic boundary from that natural shoreline.
Justice William H. Rehnquist: But you colleague Mr.Claiborne --
Chief Justice Warren E. Burger: The line that you just put on in red with some crayon, is that based on the 1868 boundaries?
Mr. Keith A. Jones: That would have been --
Chief Justice Warren E. Burger: Would you indicate that again for me so that it's clear?
Mr. Keith A. Jones: All of that --
Chief Justice Warren E. Burger: That's based -- it's based on the 1868, is that right?
Mr. Keith A. Jones: All that line represents is the maximum juridical bay closing line that would have been permitted in 1868.
It does not represent the historic coastline because there are islands further west of that line, so that the historic coastline would've been the natural shoreline of those islands further to the west.
Justice William H. Rehnquist: Your colleague Mr. Claiborne yesterday, he was talking to us about Ascension Bay and I got the impression of the thing we were arguing about there was what is the equivalent of the low watermark for purposes of the measuring the grant under the Submerged Lands Act.
And that if the Special Master's finding that it was a juridical bay where upheld, we would measure from the mouth, from the line of the bay.
Is Louisiana different than Florida in this regard?
Mr. Keith A. Jones: Well unfortunately, I'm not sufficiently versed in the detail in the Louisiana case to be able to answer that, but I think that -- oh, I can't remember now which bay was historic and which was juridical.
Any historic bay of course would be the historic coastline.
Now -- oh, I'm sorry.
In Louisiana, you're only measuring three miles out from the current coastline because Louisiana has not established the historic boundary.
Therefore, you have to look in Louisiana at the current coastline and measure three miles from that line.
We're here concern with determining the historic boundary which is measured by reference to the historic coastline.
Justice Byron R. White: Mr.Jones, where to do I point this discussion in your brief?
On this first point, do you think to be --
Mr. Keith A. Jones: That discussion is --
Justice Byron R. White: I thought your first exception to the support of Special Master was that -- what should be the finding that --
Mr. Keith A. Jones: That discussion is at pages 14 and 15 of our opening brief.
Justice Byron R. White: And this is in support of the first exception, isn't it?
Mr. Keith A. Jones: The first exception is that there is no juridical bay, that that --
Justice William J. Brennan: But this argument support of -- you have one of two exceptions to the United States, doesn't it?
Mr. Keith A. Jones: That's true.
I merely showing here the existence of the juridical bay is essentially irrelevant to the question of the Submerged Lands Act grant.
Justice William J. Brennan: Wasn't this argued before the Special Master?
Mr. Keith A. Jones: No.
It wasn't because no one contended that there was juridical bay of this kind before the Special Master.
That determination was made by the Special Master on his own without any discussion or evidence.
That's why we're having this difficulty here.
Justice Byron R. White: Because I would have thought you would've -- you wouldn't be objecting to which as it in the first instance to his finding the juridical bay that -- to the --
Mr. Keith A. Jones: Well, we also object to the existence of the juridical bay for the international legal reasons that we've set forth.
Justice Byron R. White: It would only include on your present argument.
Mr. Keith A. Jones: No.
We believe that there should not be a juridical bay because it's inconsistent with the position we've taken in foreign affairs that --
Justice Byron R. White: If we would, it's irrelevant for setting the lines?
Mr. Keith A. Jones: That's right, but we don't feel that the court should grant Louisiana inland waters and thereby that the --
Justice Byron R. White: But if it is irrelevant?
Mr. Keith A. Jones: I would certainly hope not.
Justice Byron R. White: But the Special Master hasn't tested the points here.
Mr. Keith A. Jones: Which point was that?
Yes, he measured the Submerged Lands Act grant from the closing line of the juridical bay.
Justice Byron R. White: I understand that, but isn't (Inaudible) that that was improper?
Mr. Keith A. Jones: That's true.
Because as I say, juridical bay closing line of that kind was not contemplated by the parties before the Special Master.
Chief Justice Warren E. Burger: Was there any submission by the Government subsequent to the report in which introduced that element sua sponte?
Mr. Keith A. Jones: No, there was not.
The report was --
Chief Justice Warren E. Burger: -- in here?
Mr. Keith A. Jones: That's right.
Justice William J. Brennan: Was there any reason you didn't go back to the Master and asked him to reconsider?
Mr. Keith A. Jones: Well, the Special Master submitted the report to the Court and as a procedural matter.
I suppose we run short whether we couldn't find to go back to the Special Master at that time, that the report was in for this Court.
Justice William H. Rehnquist: When you say sua sponte, the Master's job was to answer some of these questions decide whether they were juridical bays I presume and did he have to have a brief on each point for the parties before he could draw a single line on the map?
Mr. Keith A. Jones: Well, I suppose he wouldn't have to.
He didn't have a brief.
But we're saying is that if we've been able to make these arguments before the Special Master, we're certainly wouldn't found the juridical bay.
I made just one point.
My time is running short about the juridical bay.
He's used a chain of islands as a defining coastline of that bay.
That use of islands is impermissible under their conventional territorial sea.
The islands are separated by water gaps of more than one mile in width which are navigation channels to the Keys.
They are not assimilable to the mainland.
Justice William H. Rehnquist: Was there any different than Long Island Sound which we were told you that they've been recognized?
Mr. Keith A. Jones: That is the historic bay, not a juridical bay.
The principles are different.
A juridical bay relies upon the technical -- to technicalities of the conventional and the territorial sea which were not met in this case.
I'd like to pass on quickly to the last exception of the United States which is the use of closing lines in the three groups of outer islands, and I will illustrate that by reference to the Dry Tortugas Islands which are here on this map, although that principles of law are basically the same with regard to all of the islands.
The Special Master drew these closing lines to enclose inland waters of the state.
The effect of that was to deny foreign navigators, foreign vessels, the right to sail through those waters and they were designated inland waters of the state.
That use of baselines -- well, the Special Master had no jurisdiction to use baselines in this fashion.
This Court has recognized the Louisiana boundary case, the use of such baseline is within the sole discretion of the United States.
United States is not chosen to enclose outer islands with baselines, and the Special Master had no power to do it.
Moreover, the use of such baselines is inconsistent with our position in foreign affairs.
Certain island nations, Indonesian, the Philippines for example have enclosed large bodies of water with the use of such baselines and threaten to deny foreign navigation right to these waters.
Justice Byron R. White: I think it's what the Special Master has included that that's the boundary of the state.
Mr. Keith A. Jones: That's correct.
Justice Byron R. White: And if the islands were very close together and imperceptivity apart, you would think they'd be quite alright?
Mr. Keith A. Jones: Yes, but these islands are not that close together.
But more than that, only if they are close to the mainland, not if they are just close together.
Islands that are merely close together are not entitled to baselines unless the sovereign determines to draw such baselines.
Justice Byron R. White: Even since it was there all they way up to Keys for the --
Mr. Keith A. Jones: No, we are --
Justice Byron R. White: -- Florida Bay?
Mr. Keith A. Jones: No.
We're only speaking now of the lower Florida Keys, the Marquesas Keys, and they Dry Tortugas.
Justice Byron R. White: Why don't you make the same position on that of Key?
Mr. Keith A. Jones: He didn't encircle those in the same way.
He did form a juridical bay there.
We've already oppose that.
Justice Byron R. White: If the Keys do form the south side of the -- suppose juridical bay.
Mr. Keith A. Jones: That's correct, and in so --
Justice Byron R. White: Did you challenge that?
Mr. Keith A. Jones: Certainly.
We say that there is no juridical bay there.
Justice Byron R. White: Oh, I know, but do you challenge it on the grounds that the islands themselves are not part of the mainland and should not there for -- do not therefore bound the bay.
Mr. Keith A. Jones: That's right.
The islands are not assimilable to the mainland.
They are separated from the mainland by a series of water gaps.
Some of which are more than one mile in width, some of which are navigation channels, they're simply not a part of the mainland.
The only time this Court has permitted the assimilation of violence to the mainland was in the Louisiana boundary case where there were very marshy areas, riddled with a very thin and possible streams of water where it was impossible for practical purposes to define the difference between the mainland and islands; that's simply not the case here.
These are true islands separated at some great distance from the mainland.
Justice Byron R. White: I suppose that if they followed your course, you would just go out three miles from the actual coastline on each of those islands?
Mr. Keith A. Jones: Well, three miles to determine that territorial sea, yes.
Our position is that the coastline of the state is determined solely by reference to the natural shoreline of the mainland and the islands, and that all grants under the Submerged Lands Act, it must be measured from the natural shoreline, and that the territorial sea is measured from the natural shoreline that there are no substantial bodies of inland water in the area of the Keys.
Justice William H. Rehnquist: What if the Florida Keys instead of running southwest from northeast to southwest, run from Cape Biscayne southeast so that there could be no question of a juridical bay at all, but they were still separated by the same water that they now are between Cape Biscayne and Key West.
Would you say there that the Master couldn't draw baselines?
Mr. Keith A. Jones: Yes.
Certainly as to islands that are sufficiently separated from the mainland not to be assimilable to a mainland.
Justice William H. Rehnquist: What is particularized?
Mr. Keith A. Jones: In our brief, we suggest that that the islands down to Upper Matecumbe Bay -- Upper Matecumbe Key might be so closely assimilated to the mainland just to be part of it.
Those islands which are illustrated in the map are separated from the mainland only by impassible ribbons of water.
Here discussing only down to this point.
In fact on this map, it appears that this is part of the mainland, it's not.
It's a series of Keys, some large, some smaller which really are so closely connected to the mainland or so close to the mainland as for practical purposes probably to be part of the mainland.
And this point between Upper Matecumbe Key and keys further to the southwest, there are water gaps which are wide enough some over a mile in width to completely separate those islands in our view from the mainland, and to make it impermissible to draw baselines.
But I would further add that baseline running down along a chain of violence would serve no purpose at all.
It would not enclose any body of water.
It would simply deny passage between the islands.
That would serve no legitimate interest of the state and it would interfere with foreign navigation in some instances with no counter-bailing considerations in its favor.
That's the problem with the baselines drawn by the Special Master in the outer islands.
It serves no purposes in his report.
The Florida is grant of under the Submerged Lands Act would be essentially the same whether you use baselines or not, and they're merely gratuitous in this case.
Justice William J. Brennan: This is another question that was not argued before the Special Master.
Mr. Keith A. Jones: That is correct.
No one made any submissions about baselines of this kind.
It was assumed by the federal government and the state made no contrary contentions that there would be no such baselines.
Thank you very much.
Chief Justice Warren E. Burger: Very well Mr.Jones.
Mr. Attorney General, you may proceed whenever you're ready.
May I suggest Mr. Attorney General that you put your map back a little further?
There now, I think we can all see it.
You are free to use all --
Justice William J. Brennan: How about the other --
Chief Justice Warren E. Burger: Oh!
Let's move these chairs out of the way then gentlemen.
Justice William J. Brennan: How about using the other one?
The one the Government used.
Chief Justice Warren E. Burger: You're free to use both maps if you wish Mr. Attorney General.
Argument of Robert L. Shevin
Mr. Robert L. Shevin: This is not mounted.
It wouldn't stand on the other easily.
Chief Justice Warren E. Burger: Can you see now --
Justice Thurgood Marshall: (Inaudible)
Chief Justice Warren E. Burger: Let's move all these chairs as far necessary as to have a clear view.
Justice William H. Rehnquist: Chief, on this side, I think if Mr. Jones and his associates --
Chief Justice Warren E. Burger: Yes, if you move to the your right Mr. Jones.
I think you'll have to move about 10 feet in order to accomplish that.
Justice Byron R. White: You might be able to see that to Your Honor.
Chief Justice Warren E. Burger: That's better.
Mr. Robert L. Shevin: Sorry for the confusion.
Chief Justice Warren E. Burger: That's alright now.
We'll not start your time running until your stage props are all ready Mr. Attorney General.
Mr. Robert L. Shevin: Thank you sir.
Mr. Chief Justice --
Chief Justice Warren E. Burger: -- you may proceed.
Mr. Robert L. Shevin: Mr. Chief Justice, may it please the Court.
First of all, the water gaps that Mr. Jones refers to of a mile between the Keys, I would point out that most of those are more than two feet deep.
There are couple of six and seven foot channels, but there was testimony presented before the Special Master that one could begin walking at Key Biscayne and walked the entire distance to Key West during low tide.
So, we're not talking about substantial water gaps of depth.
Secondly, what counts is what was the historical setup of this land in 1868 and the maps that where presented in the record indicate that this was one mass of land with very little separation in 1868 and as a matter of fact, there were mudflats from the Key Biscayne all they way to Key West.
I would also point out that what Indonesia and the Philippines do with regard to their islands is totally immaterial to this boundary dispute and we should not be bound in the dispute with the federal government over what will happen in the Indonesia or the Philippines.
Chief Justice Warren E. Burger: Now, when you made that statement about walking from Key Biscayne to Key West there's something you want to do, take that long walk, is that in evidence in the Master's record?
Mr. Robert L. Shevin: Yes, it is.
There is evidence and we have maps from the 1700s that show this entire massive land and mudflats without hardly any separation at all between the Keys.
With regard to the exercise of sovereign power by the State in Florida Bay, may I remind the Government that in 1964, they supported us in the Barrios case which came to this Court where we prosecuted two Cuban fishermen for the violation of our state fishing laws and the Government filed the brief in favor of our exercise of sovereign jurisdiction.
I would also point out in response to a question asked by Mr. Justice Powell that foreign fishing has not been allowed in the eastern portion of Florida Bay and it has not been allowed in this entire portion on a historical basis.
I would also point out that the 1962 Florida Constitutional Amendment which they refer to as a waiver of the state's rights was not approved by the Congress.
So therefore, it cannot constitute a waiver Florida's historical boundary and 1868 is our only lawful boundary because that was the only boundary approved by the Congress.
I would also point out that the 1962 amendment to the constitution in Florida cannot be anymore effective as far as hurting us than the 1968 Amendment could in helping us because in the 1968 Amendments of the Florida constitution, it readopted almost verbatim the 1868 boundary.
So, what we're left with is that the only lawful boundary of the State of Florida is the 1868 boundary.
With regard to the 1955 statute that was passed by the State of Florida which mentioned gratuitously that the Straits of Florida were located in the Atlantic rather than in the Gulf, and here the Straits of Florida.
With regard to that, I would point out that this statute was passed by the legislature in response to the Submerged Lands Act.
It certainly cannot affect what is based on expert testimony, and that is marine geology and sedimentology.
The testimony is clear that this, it is a Gulf area and that this is the Atlantic, and the Gulf and the Atlantic are separated at Cape Florida.
In affect, the lighthouse at Cape Florida separates the Gulf and the Atlantic.
Justice Potter Stewart: You point out Cape Florida.
Mr. Robert L. Shevin: Cape Florida is located right about --
Justice Byron R. White: I can't see it Mr. Attorney General.
Chief Justice Warren E. Burger: No.
Justice Potter Stewart: Instead --
Mr. Robert L. Shevin: Here is Key Biscayne and Cape Florida would be the tip right about here.
Justice Potter Stewart: Right.
Mr. Robert L. Shevin: It's a 25 degrees and 40 minutes.
Justice Potter Stewart: And it's your submission that that is what -- that that point --
Mr. Robert L. Shevin: When you're part with contention Your Honor, it is at the Straits of Florida and the entire Keys are located with Gulf of Mexico.
We have drawn the line where we contend the Atlantic and the Gulf separate.
The Master in his finding said basically that everything north of the Tortugas is Gulf.
Justice Potter Stewart: Right.
Mr. Robert L. Shevin: Everything south is Atlantic.
Justice Potter Stewart: Right.
And your submission is that an east west line with its western terminus Cape of Florida is the dividing line between the Gulf and Atlantic?
Mr. Robert L. Shevin: Yes sir.
And we contend that the record is clear.
We have sufficient testimony and I'm going to get into the testimony and point out why the testimony of the Government is inadequate on this point.
Chief Justice Warren E. Burger: Now before you go on --
Mr. Robert L. Shevin: Yes, sir.
Chief Justice Warren E. Burger: Would you take your pointer at least for me and show me where on a north's -- where you would draw on north-south line from the lighthouse you were talking about that would separate the Gulf from the Atlantic.
Mr. Robert L. Shevin: This red line --
Justice William H. Rehnquist: Mr. Attorney General, if you would use the pointer, maybe we could see over on this side too.
Mr. Robert L. Shevin: This red line --
Chief Justice Warren E. Burger: Can you see now Mr. Justice Powell?
Mr. Robert L. Shevin: Throughout this matter, the red line indicates what the State of Florida's position as the black line indicates what the Master found which is pretty consistent with what the Government put forth in their case with the exception of the juridical bay.
Basically where we differ, we differ very slightly here and I don't even intent to argue the Atlantic coastline.
I intend to argue the Atlantic and the Gulf separation.
The question of Florida Bay which we contend, we agree, we don't think it's a juridical bay.
We think it's a historic bay and we think the historic bay goes on the 45-degree angle from the Tortugas to nine miles or three leagues off the coast of Florida, and we'll get into that in just a moment.
So basically, this is the red line which encloses what we contend is all of Florida Bay and we will show that historically.
We have exercise sovereign jurisdiction over that entire area.
Chief Justice Warren E. Burger: How far eastward in you view does the Gulf go from that line of the lighthouse?
Mr. Robert L. Shevin: From here?
Chief Justice Warren E. Burger: Yes.
How far east of the mainland of Florida?
Mr. Robert L. Shevin: Just a few miles, Your Honor.
It'd be a matter of about -- I think, it's about 10, 20, 10 to 20 miles at the most.
Justice Potter Stewart: Based upon the bottom, isn't it?
Mr. Robert L. Shevin: Yes.
It's based upon the bottom that if --
Justice Potter Stewart: Right.
Mr. Robert L. Shevin: If you empty the bottom, it would drain into the Gulf because and we've also got testimony with regard to the organisms in that area and with regard to the sedimentology and the geology of that area.
I would also point out that the 1955 statute which was a response as Submerged Lands Act certainly cannot affect where that line is based upon expert testimony.
Addition to which, that statute was repealed so that legislature obviously has no further position or opinion on the location of the Florida Straits.
With all due respect, I would disagree with Mr. Jones in his answer to you Mr. Justice White because you said if you ruled against the Government on the constitutional issue, would you still need to decide the boundary line?
I think you would because it would still be a difference of whether we're entitled to three leagues or three miles on the Gulf side and you got to decide where does the Gulf and where does the Atlantic begin in order to reach that question.
Justice William J. Brennan: Incidentally, if you were right on that point and also right on the historic bay, would you -- a three leagues begin from that long line than the --
Mr. Robert L. Shevin: Here?
Justice William J. Brennan: Yes.
Mr. Robert L. Shevin: No sir.
We believe that in this instance, the boundary line and the coastline would be the same.
Justice William J. Brennan: Oh!
Mr. Robert L. Shevin: We were not given additional three leagues on top of that, nor have we contended so.
I would also strongly agree with the Master on where the 1868 boundary is and of course, that's the crux of this issue.
Justice Byron R. White: You would say that if you are right on the historic bay there in Florida Bay, your rights in the seabed would be -- would stop there?
Mr. Robert L. Shevin: Yes.
Justice Byron R. White: Because that's your historic boundary.
Mr. Robert L. Shevin: Because that is our historic boundary and it will always --
Justice Byron R. White: Oh, I would not be true of you -- of your -- on the entire Gulf side with respect to your historic boundary.
Mr. Robert L. Shevin: No, sir because on the entire Gulf side, our historic boundary would be in effect a three-league line.
It would -- it is the same as the three-league line, our historic boundary.
Justice Byron R. White: Oh!
What about all of the west coast of Florida?
Mr. Robert L. Shevin: This is approximately historic boundaries --
Justice Byron R. White: The west -- the west --
Mr. Robert L. Shevin: -- approximately three miles to --
Justice Byron R. White: The west coast.
Mr. Robert L. Shevin: On west coast, here, it's a three-league line and both, the Master, the federal government and the state are in agreement that this does constitute a correct reading of the historic boundary.
Justice Byron R. White: Well then, I still -- if we held for you on the constitutional issue, it seems to me you get out to your historic boundary and we don't have a problem about it where the Atlantic and the Gulf are.
Mr. Robert L. Shevin: Well Your Honor, in -- yes, I guess that that would be true, yes.
Justice Byron R. White: Oh, that's --
Mr. Robert L. Shevin: Yes, I guess that would be true.
If you determine that that's our historic boundary was.
The importance of this case to Americans living thousands of miles away, we contend will not be known for a long time because we think that the impact of this case would be very great.
Already, Florida Bay which is the area in question produces half of our $16 million year fishing industry.
At present, the area is protected by the Florida Marine Patrol.
If the Master is upheld, this entire fishery would become international waters and would probably have no police protection whatsoever.
We would like to comment that for many years, the Government has had we consider a general policy of trying to chip away at the rights of the state in our marine areas, and this policy has taken the form of nibbling away at states sovereignty.
This case we think presents an excellent opportunity for the Court to reverse this trend and to recognize that the states have a value in being able to give local knowledge and direct interest in protecting these vital natural resources.
A police force already on line, train, knowledgeable and particularly equip to patrol this area and vigorous enforcement with proper respect for international commitments.
I would point out Your Honor that the conduct of international affairs is Your Honors is not at issue here.
The rights between the state sovereign and the federal sovereign are at issue.
There's nothing in the record that shows that Florida's ownership of Florida Bay or exercises of sovereignty in Florida Bay has ever embarrassed or interfered with the federal government's conduct of foreign affairs.
Time and time again, the Master we think wrongly turn to international law to decide what properly is a purely municipal matter.
This is a case of domestic law.
It arises we think from a somewhat misguided effort on the part of the federal executive to veto Congress by litigation.
And I think that the Court should recognize the usefulness and the detrimental effect that the Executive Branch of Government has in spending great sums of money in this litigation to ask the federal judiciary to proclaim what the President or the Department of Justice or the state department feels his best as to where the boundaries of the state should be located.If Mr. Attorney General, if the large bay that is the one with the 100-mile opening, the one that you claim is an historic bay.
We claim that it's a historic bay and we claim that it is the historic boundary.
Chief Justice Warren E. Burger: Is that now open to foreign shipping and foreign fishing back to the new line that the Master has drawn to a very much smaller bay, do you then suggest that that will open up that whole area to potential conflicts between the state's efforts to police it or will the state be entirely out of policing that large area?
Mr. Robert L. Shevin: Well, if the Master is correct, then the historic boundary of the state is along with this area, then we would feel that this entire Florida Bay area would be considered international waters and that we would have no jurisdiction for policing any of that area notwithstanding the fact that a great amount of the shrimping industry in Florida is located in that specific area.
Chief Justice Warren E. Burger: What's the portion of the total --
Mr. Robert L. Shevin: Of the shipping, of the fishing?
Chief Justice Warren E. Burger: Of the fishing.
Mr. Robert L. Shevin: About half of the $16 million industry is located in that area.
We would also point out and we have -- I hope to get to this at some point in time.
The state has issued a number of oil business since 1941 in this entire area which has never been questioned before and large companies have been drilling for oil in that entire area over the past 30 to 35 years.
Justice Thurgood Marshall: Mr.Attorney General, the Government doesn't agree with you that you have permitted or not permitted fishing by foreign government.
Mr. Robert L. Shevin: Well, Your Honor --
Justice Thurgood Marshall: You say that the fact, but you agree that it's not the admitted fact, right?
Mr. Robert L. Shevin: No, it's not the admitted fact, but I hope to get into some of the specific testimony which will point out that there has been an acquiescence by foreign governments in the sovereign exercise of jurisdiction by the state in that entire area over a long period of time.
Justice Thurgood Marshall: Have you prohibited it, foreign governments from fishing?
Mr. Robert L. Shevin: We have, whenever --
Justice Thurgood Marshall: In what means?
Mr. Robert L. Shevin: We have the marine patrol that polices that area that federal Government entered into a treaty with Cuba in 1957, and during the pendency of that treaty which we asked the federal government entered into a Cuba because there had been shrimping -- shrimping that was occurring in the Tortugas.
Justice Thurgood Marshall: Is there any shrimping going on there now by foreign government?
Mr. Robert L. Shevin: Not to our knowledge, not to our knowledge.
That treaty --
Justice Thurgood Marshall: That's in the record?
Mr. Robert L. Shevin: Yes, sir.
Justice Thurgood Marshall: I thought you said in the record --
Mr. Robert L. Shevin: There was two, two --
Justice Thurgood Marshall: -- that you admitted that it had been going on.
Mr. Robert L. Shevin: There were two Cuban fishing vessels that came into the area in 1971.
Justice Thurgood Marshall: I thought the Government said that in the record Florida admitted that foreign fishing was going on.
Is that correct or not?
Mr. Robert L. Shevin: I don't think that statement standing alone is correct, no sir.
I think there had been occasions of foreign ships going in the area and wherever possible, the police has tried to exercise its police power to keep them out.
And there had been a couple of arrest occasionally, usually of Cuban fishermen within that area.
There was two arrest back in 1971 and the coastguard were called in to assist the --
Justice Thurgood Marshall: My only point is that if is that clear to you.
Mr. Robert L. Shevin: Let me comment if I may on United States versus California, of course, the overturning of that case is sought by the states in original 35.
I agree with them that the case was wrongly decided in overlooking at least a 100 years of case law and I think its full amended great misunderstanding.
But the point that I wish to make with regard to Florida's case as its relates to California is not so much that it was wrongly decided but that it does not apply in the way the Master used it.
Our question is simply “where did Congress permit Florida to have our boundary in 1868?”
Even though Mr. Jones states that this is identical to California, we disagree with him.
They are not identical.
California went off on the summary judgment.
There was no evidence put in the record.
California did not decide where the historical boundary of California is or was or whether they had a historical boundary.
Unlike California, Florida has been declared already in original action 9 in 1960 to possess a historic marine boundary as described in the 1868 Constitution in excess of three marine miles.
Also, it's our position that the Submerged Lands Act by Congress was clearly a response to this Court's decision in California, and in effect vitiated California.
In the Submerged Lands Act, the Congress confirmed their quick claim title to the states, to the seabed beneath the navigable waters within the states boundaries and to the natural resources within such lands and waters up to three miles and gave the states the right to prove the existence of a marine seaward boundary beyond three miles.
Justice William H. Rehnquist: Mr. Attorney General, it seems to be -- just advance several different propositions and on your point that California isn't controlling.
In California, Congress had recognized the three mile boundary of California.
At the time, it was admitted to the union in 1850 as I recall.
And now, I take if the Government's position which the Master accepted was that Congress is recognition of Florida's 1868 boundary was no more and no less than that.
Now, do you -- if you disagree with that, why do you disagree?
If one that you say you want California overrule or that the Submerged Lands Act have changed it?
But insofar as arguing that you're not governed by Florida, why aren't you?
Mr. Robert L. Shevin: Because we think that the facts in California are not identical, that it's a different situation that this Court never decided where the California had a historical boundary.
And in this case, you've already -- the Court has decided in original 9 that Florida does have a historic marine boundary that give us rights beyond three miles.
And subsequent in other words, it's our position that the Submerged Lands Act since it very clearly states, nothing shall be taken to prejudice the rights of any state to establish a boundary beyond three miles.
And then this Court in United States versus Louisiana, the 363 U.S. page 1 decision, this Court said, “it was suggested that Mississippi and Alabama might claim boundary six leagues”, which of course is an excess of three; six leagues in the Gulf because of similar provisions and the acts admitting them to the union.
He went on to say and this Justice Harlan, “it was recognize that if the legal existence of such boundaries could be established, they would clearly entitle the respective states to submerge land rights to that distance under an application of the Pollard's rule to the marginal sea.
Hence, while a three-mile boundary was expressly confirmed for all coastal states, the rights of the Gulf States to prove boundaries in excess of three miles was preserved.
Now surely in that --
Justice William H. Rehnquist: That's based in on the Submerged Lands Act?
Mr. Robert L. Shevin: It is saying in effect that the Submerged Lands Act quick claim to the states confirm title but gave the states every right to come in and try to prove that they have a historical boundary, even if they went six leagues.
Now obviously, this historical boundary that's located out in the -- the historical boundary that's located out in Florida Bay would be in excess of three leagues.
So, we are dealing with the nearly an excess of three leagues.
So, it's our contention that we have ownership interest and the disputed area off of our coastline, it's our contention that the rule of Pollard's lessee should apply and that the extent of our jurisdiction was declared in the early of U.S.versus Florida position to be that which we have in 1868 as described in the state constitution of that date and approve by the Congress.
We're not here contesting work powers, we're not here challenging the federal government's right over interstate of foreign commerce, we are not questioning who conducts our international relations, but that does not mean that Florida cannot control the seabed of its own territory.
Florida should retain eminent domain over the shores of her territory and over the submerged lands that are here in question.
We have accepted to several particular points in the Master's finding.
One of these important points regards the location -- thank you.
One of these -- I broke my pointer.
One of these important points regards the location of the historical boundary between the southern most key, the Dry Tortugas and Cape Romano.
I'd like to call your attention to the call in the Constitution, and that is from the Tortugas, you go thence northeastwardly to a point three leagues from the mainland, thence northeastwardly to a point three leagues from the mainland.
Now, the Master has concluded that that's only a general overall direction and he in effect has said that you first go east and then you even go southeast before you start and you follow a three fathom line to a northeastwardly fashion until a point nine nautical miles as reach.
Now, it's our view that this construction is so illogical and contrary to the plain meaning of the words as to the ludicrous.
Florida contends that the call thence northeastwardly to a point three leagues from the mainland can only mean one thing, and that is a specific compass direction and absolute heading a 45 degrees because there are not geographical directions included in the call such as the northeastwardly along the coast.
It doesn't say along the coast, it says thence northeastwardly to a point three leagues from the coast.
The only way that you can go northeastwardly is a point between north and east.
It's a direct compass reading of 45 degrees.
Even the Government's witness, Dr. DeVorcey, testified on cross-examination that northeastwardly means 45 degrees, a point between north and east.
And even the Special Master himself, Judge Maris in Michigan versus Ohio original 30 in 1971 interpreted northeast as north 45 degrees east.
But in this case for some reason, he went southeast in order to determine what the historical boundary of the State of Florida is.
Justice Potter Stewart: And right there, not be a difference between northeast and northeastwardly?
Mr. Robert L. Shevin: Not when it says to go to a point Your Honor.
Justice Potter Stewart: Northeast is as you correctly say, a very definite course of 45 degrees, northeastwardly means more about 40 or --
Mr. Robert L. Shevin: Well, excepts --
Justice Potter Stewart: More or less northeast.
Mr. Robert L. Shevin: Yes sir, except for the fact that the cross-examination for the Government's own witness, he testified that to him, that would mean a point between north and east and he said 45-degree angle.
And that's what we have contended throughout this proceedings that that is the historical boundary call and that the Master is arbitrarily added a geographical call where none previously existed.
Justice William H. Rehnquist: But that means you think you have to start out north of east and not south of the east?
Mr. Robert L. Shevin: Yes sir.
This is -- I would point out that this is a usual course and there's testimony in the record that shrimpers who return from the Tortugas shrimp grounds, when they wanted to get to the mainland, they set a course of 45 degrees.
They started to cross this expands the water to the nearest point of the mainland before turning north.
And the point that they invariably reach was Cape Romano.
Justice William H. Rehnquist: Is a 45-degree call northeast from the Dry Tortugas bring you right out to Cape Romano?
Mr. Robert L. Shevin: Yes sir, it would.
It would bring you right to Cape Romano.
Shrimpers, we contend, have been doing so for hundreds of years and if the Master's version is accepted, the plain meaning of the words is ignored.
What's more, he reads into the call, a meaning contrary to the clear import of the words because he draws the boundary not northeastwardly at all, but in a direction southeastwardly from the Tortugas.
Further, the call concludes that it goes to a specific point, that point line, three marine leagues off the mainland.
Clearly, it requires a straight line, 45 degrees to Cape Romano and northeastwardly standing alone without further references to geographical locations either as commencing midpoint or terminal monuments must mean northeast or north 45 degree east to constitute a definite boundary.
It's a contention of Florida that by virtue of the Act of 1868, Congress expressly or impliedly convey or granted to the state the rights and interest in the title possessed by the United States and the area encompassed by the boundary described in the Florida Constitution in 1868 when Florida was readmitted to the union, which rights include ownership of the submerged lands and resources of the sea.
Furthermore, the historical boundary in 1868 defines the outer perimeter of an area historically known as Florida Bay which is a historic bay or historic waters and thus, internal or inland waters or the State of Florida.
The contested area of Florida Bay amounts in about 8,000 square miles, and this boundary as I pointed out is not only as Florida's historic boundary but it's our only lawful boundary.
Now, let me address if I may for a few moments the issue of Florida Bay.
We claim the Florida Bay is a historic bay and thus inland waters of the State of Florida.
And we construe it to be all of the waters bounded on the south by the Florida Keys to and including the Dry Tortugas, and on the northeast by the Florida peninsula and on the northwest by the Tortugas with a line running 45 degrees from the Tortugas to Cape Romano.
In determining whether the state has properly acquired historic title to a maritime area, this Court has said that there are three factors; the exercise of authority or sovereignty by either the state or the federal government, the continuity for a long period of time of that exercise, and the attitude of foreign states, in other words, acquiescence by foreign states.
In addition, it has been held that a coastal state may strengthen its claim by showing that its vital interest are involved as we did in this case.
We contend that we proved our case in all three respects.
Our claim of historic title is based upon the occupation of Florida Bay.
The Master in concluding that we fail to prove our claim ignored we contend compelling evidence to the contrary, and we also contend that he held us to the wrong burden of proof.
He said we have to prove it clear beyond doubt.
To apply that burden rather than a preponderance burden was error and the matter should be at the very least to return to the Master for additional testimony and hearings and the application of the correct standard of proof.
The clear beyond doubt test in California too can only be apply to a state in proving its historical claim where there federal Government by its actions has made an effective disclaimer of sovereign jurisdiction in the area.
Here, the federal Government tried to disclaim and they introduce several self-serving declarations all made during or within the proximity of the commencement of this litigation and the documents and evidence carry no specific disclaimer that Florida Bay is a historic bay.
This purported disclaimer should not impose such an owner's burden on the state of clear beyond doubt.
Also I would point out that the danger zones that had been established by the federal government in this area right here, these danger zones which only allow people to enter that area with permission by the United States Navy certainly represents an act of dominion over Florida Bay by the federal government which cannot be ignored.
When the authority is asserted pursuant to a statute permitting such exercise of power only in the territorial waters of the United States, they established those danger zones based upon the Congressional Act that allows them to do so only in the territorial waters of the United States.
So, they obviously recognized that area as territorial waters not the high seas, and it's hard to see how the United States has disclaimed dominion over the area when they have danger zones that only allow people to come in on permission for the United States Navy of approximately 1,900 square miles.
Justice William H. Rehnquist: Is your historic bay claim separate from your historic boundary claim?
They bring you out the same place I think.
Mr. Robert L. Shevin: Yes, yes sir.
They bring us the same place.
We contend that we have a historic boundary that goes there.
You could in the alternative find that we have a historic bay without agreeing that our boundaries where we contended --
Justice William H. Rehnquist: That would be under the international convention?
Mr. Robert L. Shevin: That's right.
Also with regard to the failure, the federal government to disclaim any interest in the area, we rely upon a treaty of the United States with Cuba in 1957 when Cuba agreed to keep its nationals out of the Tortugas shrimp beds, and we think this represents active dominion of the United States to the historic Florida Bay area.
Further, we contend that we have established by a preponderance of the evidence, we contend we have established even by clear beyond doubt test that Florida Bay is a historical bay and that is it thus the inland waters of the state.
We contend that it's a historic bay because we believe that they Dry --
Justice William J. Brennan: Mr.Attorney General, I don't understand if you're right on your historic bay argument.
Why it is you can't go from that line, nine leagues into the Gulf?
I mean three leagues in the Gulf.
Mr. Robert L. Shevin: I think that if we're correct on that argument and you don't agree with us on the establishment of the boundary that we could, but we have considered.
We considered that question and we felt that since that is that boundary line and the coastline that we could not go beyond that another three leagues.
And that --
Justice William J. Brennan: But that's a historic bay?
Mr. Robert L. Shevin: Well, --
Justice William J. Brennan: That's your coastline --
Mr. Robert L. Shevin: Yes, that would be our coastline if it is a historic bay.
Justice William J. Brennan: And then you'd measured three leagues in that line would you?
Mr. Robert L. Shevin: Well, perhaps.
We had not thought that we could get an additional three leagues on top of that.
Justice Potter Stewart: The statute wouldn't allow -- the 1953 law doesn't give you that?
Mr. Robert L. Shevin: I think it gives us either to the boundary or the three leagues which ever is greater.
Justice Potter Stewart: That's right.
Mr. Robert L. Shevin: And in this case, we get to the boundary which would be our coastline and that's the reason that I think we concluded that we couldn't get an additional three-league.
Justice Potter Stewart: And I think you're right.
Mr. Robert L. Shevin: Alright.
The historic bay, the Dry Tortugas, we contend can be considered as islands forming a multiple mouth bay and the archipelago known as the Florida Keys certainly can from one side of that bay and it is lawfully conceptual.
Florida Bay is historically a part of Florida.
Ancient maps and charts that we introduced in evidence demonstrate a remarkable continuity of Florida Bay but whatever name as a distinctive area with roughly the same boundaries through the Spanish experience, the British experience and the American experience.
And these date back to the Jeffers map of 1763 and it shown Richman Bay and Chatham Bay as a designation of the area that is now called Florida Bay.
In the early maps as I pointed out, the Keys area where solid land mass and it showed mudflats from the mainland to the Tortugas.
Also, the United States acquired title to Florida from Spain by virtue of the Treaty of Amity, Settlement, and Limits.
Article II of that treaty provided for that King of Spain to cede to the United States, and I hope you'll pay close attention to this language.
“In full property and sovereignty, all of the territories which belong to him situated on the eastward of the Mississippi known by the name of east and west Florida, the adjacent islands dependent on said provinces which relate directly to the property and sovereignty of said provinces.”
It is clear to us from this language that the treaty would include the Dry Tortugas and the water area between the islands and the mainland know as Florida Bay.
What is the utilization of Florida Bay, so as to establish a historic bay?
To begin with, when the territory belonged to them, the Spanish and British fished in the area in the period of the late 1700 and early 1800.
All of this is in the record and I won't mention transcript pages, but I will relate specifics in the record.
The sponge industry began in 1849.
It extended from the very shallow waters sponging to hot channel between the Keys and the reefs.
One of our witnesses, Senator Hodges who is a Director of the Department of Natural Resources said “In my mind, I would considered once again the 45-degree angle from the Tortugas north to Cape Romano as an area that was utilized for fisheries and for sponging and for all other economic activities.”
And about 1870, sponging expanded to the areas up to 50-foot in depth by the use of the glass bottom bucket.
Kirk Monroe published an article Sponge and Sponges in the Florida Reefs in Scribner's Magazine in 1892, and he noted that the “Key West sponger has a choice of two distinct fishing grounds; they bay and the reef.
This former, the bay, includes all of the waters of the Gulf of Mexico washing the western coast of Florida.”
In 1935, a map of sponge fishing area for the United States tariff commission notes a diving area from Cape Romano north and the hooking areas in the shallow waters of the Keys in Florida Bay.
Wrecking was a lucrative and growing industry in the Florida Straits in 1850 but it gone on since the early 1700.
What are the expressions of sovereign authority in Florida Bay?
In 1822, Florida complained to the federal government about British inner loppers in the area from Cape Florida to the Dry Tortugas fishing and turtling.
By 1825, federal revenue cutters were patrolling the southwest coast of Florida.
In 1826, the United States ordered all foreign fishermen from South Florida waters.
In 1832, Governor Duvall indicated that Florida fishing and turtling were exclusively and solely for the local jurisdiction and for part of citizens and he oppose giving British fishermen the right to use Florida waters or Florida Bay.
And by the way, these ships that were in contention work from 20 to 50-ton ships, and would have to employ in the deep water of Florida Bay, it would be at the outer perimeter.
And this request by Great Britain was not granted.
The Florida legislature in 1832 enacted a law for protection of the fisheries of the coast of Florida which included all of the seas, bays, creeks, and harbors adjacent to of the islands or Keys of the territory.
And the testimony is that it obviously included Florida Bay.
In the early 1860's, Florida seas, Connecticut ships fishing off the keys.
Historically, Florida Bay was considered and this was before the Florida's readmission to the union.
Historically, Florida Bay was considered as strategic military area.
Key West was a United States military post in the 1820's.
In 1822, deep draft vessels were used by the United States to combat pirates in orders north and south of the Florida Keys and the army set up a post in the Keys in 1831.
In 1850, General Harney had patrols from Fort Myers across the waters of Florida Bay and barren sounds to the Florida Keys.
Federal ships in early 1860 continuously patrol the waters along the Florida Keys and the Gulf coast during the Civil War to stop blockade runners.
And we can go on and of course, I mentioned to you that the Florida lease lands for oil drilling in Florida Bay beginning in 1941 and this included all of Florida Bay up to the 45-degree line from the Tortugas to Cape Romano.
The territorial water acts of the state in 1963 require aliens or foreign nationals to have a license to fish in Florida waters.
What are the indications of foreign acquiescence which is the third criteria of Florida Bay area?
In 1831, the British request to fish in South Florida waters.
Certainly, indicates acquiescence in control by the state or the federal government.
In 1845, Great Britain again asked for permission to fish in Florida waters and enact of the legislature to protect the fisheries of the coast of Florida was pass.
Foreign nationals have never challenge marine patrol enforcement.
It has been pointed out in the testimony that lack of state enforcement over the Tortugas shrimp beds would just about wipeout a $16 million a year industry and the Government of Cuba has pointed out by Senator Fulbright during the negotiation between Cuba and the United States for the treaty in 1957 to keep Cuban nationals from fishing in the shrimp beds of the Dry Tortugas.
Senator Fulbright said that the Cuban Government was honoring the request of Florida.
They had a gentlemen's agreement which certainly indicates acquiescence in the authority of the State of Florida.
Professor Tebo, who is a professor of emeritus of history at the University of Miami, testified that northward from Key West on the Gulf side, the mainland of sea traffic lay west of Cape Romano.
This was a passage inside the cape, but its usage was limited to small boats with skilled navigators.
They knew that Tortugas channels through the shallow waters.
Between these limits, lay the distinctive area and now designated Florida Bay, set aside by geography and history as part of Florida.
And Dr. Samuel Proctor, history professor at University of Florida transcript page 408 said that Floridians and other informed persons at the time knew the importance of the resources adjacent to the Florida coast.
They were aware of the importance of these waters.
Consequently, these men writing Florida's Constitution and operating in the best interest of the state would have wanted to enclose as much of the areas possible within their state boundaries.
This, they sought to do in writing the boundary article in the 1868 Constitution.
We have historically exercise police power over the statute.
The 1893 statute prohibiting foreign fishing in Florida waters without a license, the 1915 state laws making all fishing in Florida waters including the bays to be Florida property and the regulation of shrimping in the Tortugas since 1957.
No one has challenge Florida's exercise of its marine conservation laws except two Cuban vessels which were arrested within three leagues of land.
In addition to which, the federal Government in appending case in the United States District Court, the Northern District of Florida, has sought in an injunction against the state and has asserted that Florida attempts to regulate or prohibit foreign fishing boats more than 12 geographic miles from any part of the coastline of the state between Cape Romano and the Dry Tortugas.
So, even the federal government recognized that we do attempt to exercise police power all the way out to the 45-degree angle between the Tortugas and Cape Romano.
Perhaps the most significant aspect of this case in determining the attitude of foreign governments to Florida's claim of historic title to Florida Bay is the absolute absence of any evidence or hint of evidence from the federal government that any country has in the past 150 years, protested or objected to Florida's overt pack or assertion of sovereign claim to Florida Bay.
And highly significant in regard to assertion of sovereignty is the Act of the United States Congress in affirming to the world in 1868 that one of the states in the union, Florida had a marine boundary from the Dry Tortugas islands to the mainland which formed the northwest perimeter of the bay.
Throughout these proceedings, the United States concern for its position with regard to foreign affairs has been paramount.
With all due respect to the Government, foreign affairs is not a material issue, whether work powers, authority over interstate of foreign commerce or authority over international relations maybe exercise within Florida's boundaries, whether marine land or dry land has never been at issue.
These paramount powers we concede may be exercise if appropriate by the federal government in any part of any state at any time.
But just because they may be paramount in Lake Okeechobee which happens to be an inland lake in the State of Florida does not mean that Florida cannot regulate fishing therein or the taking of the minerals from the bottom, from the seabed.
Also, there is nothing in the record to indicate that innocent passage of foreign shipping is in fact frustrated by Florida's claim that the keys out to and including the Tortugas constitute in integral part of the state, nor is there any evidence that innocent passage in the area between the keys in the mainland.
The nominated Florida Bay has or will in any way be denied, should this Court find that it is a historic bay constituting the inland waters of the State of Florida.
There will be no interruption to the right of innocent passage and this case was not brought in the face of any international dispute involving Florida.
Our last major point and I think I had just a few -- about six, seven minutes left, five minutes left.
My last major point and we preserve all our other arguments in the brief not argued, is that it -- that this case as it relates to Florida does required determination of the rights under the Submerged Lands Act and United States versus Florida that it mandates a determination of the demarcation between the Gulf of Mexico and the Atlantic Ocean because if the federal Government assuming arguendo is correct, and we are limited to three marine miles in the Atlantic and three leagues in the Gulf and not any further, then it's imperative that we determine where is the Gulf and where is the Atlantic.
We contend that the boundary between these two bodies is at latitude 25 degrees, 40 minutes north the position of Cape Florida which means that the Florida Keys and the Straits of Florida southwestwardly of such latitude are located in the Gulf of Mexico and not in the Atlantic Ocean.
The Master says everything north of the Tortugas is Gulf and everything south is in the Atlantic, and that dispute here is about a 1,000 square miles, the difference between three leagues and three miles.
The federal Government takes its description, and by the way, this is their major piece of evidence.
I think they are sole piece of evidence on this point.
They take a description from the Gulf which the Master adopts from the International Hydrographic Bureau special publication.
They say this proves up their case.
And in the description itself on the face of the map, it says “these limits have no political significance whatsoever”, and then the authors go on to say that it's not to be regarded as representing the results of a full geographic study.
They point out it's primarily for uniformity.
We presented the testimony of a renowned expert in marine geology and sedimentology.
He testified unequivocally that the International Hydrographic Bureau boundaries between the Gulf and the Atlantic have no scientific basis whatsoever in terms of these parameters that form the basis for the geological and geometric boundaries.
Florida contends that the finding of the Master is incorrect, contrary to the weight of the evidence as to where the Gulf meets the Atlantic.
We contend that it should be decided on marine geology and sedimentology and it is best visualized by the fact that if the area were to be viewed, if all the water were removed, a natural drainage basis would appear separating the Gulf and the Atlantic at that point.
Historic evidence, mariner's evidence, geological evidence defining the Straits of Florida and the Florida Keys as being in the Gulf of Mexico was totally ignored by the Master.
All of these was subordinate to one piece of evidence, a map, which is I pointed out on its face belies its persuasive effect on the very point for which it was used.
The testimony of the state is quite persuasive.
Dr. Ginsburg testified.
He referred to numerous texts beginning with the 1957 edition of the Encyclopedia Britannica including the 71 edition of McGraw-Hill Encyclopedia of Science and Technology, the Bulletin of Geological Society of America 1971, the 1972 edition of the same bulletin.
He also -- in each of these, it refers to the Florida shelf or the Florida platform including the Keys and the Tortugas entirely within the Gulf of Mexico.
In addition, he testified how topography identifies the dividing line.
The submarine topography visualize as a terrestrial landscape which separate the Gulf and the Atlantic basins.
He testifies at 25 degrees, 40 minutes north with the Keys and the Tortugas and the Florida shrimps in the Gulf.
He testified how sediment in the capes of dividing line.
He said there is a relatively abrupt change between the Coral Reef Limestone, south of Soldier Key to Atlantic type sandy barrier islands, north of Cape Florida, and that that is the major change in the coastal morphology.
He also testified as to the organisms that indicated the dividing line.
So, our position therefore is that the configuration of the seafloor should control.
The States of Florida are part of the Gulf since they were drain into the Gulf if they were dry upland basis.
The basis for this position is that submarine topography should follow the same criteria as terrestrial topography.
Dry land is considered to be part of the basin into which it drains.
Since the Straits of Florida were drained into the Gulf, if on the Gulf -- if on dry land, they are part of the Gulf of Mexico basin.
They are not part of the Atlantic Ocean.
So, the weight and the quality of the evidence clearly indicates that Florida's contention as to the location of the Gulf of Mexico is correct.
Chief Justice Warren E. Burger: I believe your time is up Mr. Jones.
Thank you Mr. Attorney General.
Thank you Mr. Jones.
The case is submitted.
We'll resume after 1 o'clock.