UNITED STATES v. ALASKA

Print this transcript Transcript: 

Argument of A. Raymond Randolph, Jr.

Chief Justice Warren E. Burger: We'll hear arguments first this morning in 73-1888, United States against Alaska.

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

Mr. A. Raymond Randolph, Jr.: Mr. Chief Justice and may it please the Court.

This case is here on writ of certiorari to the Court of Appeals for the Ninth Circuit.

The issue is whether a disputed area in lower Cook Inlet in Alaska constitutes historic inland waters as the state claims or constitutes areas of the high seas as the United States maintains.

The issue arose in the following context.

In March of 1967, the State of Alaska offered for a competitive oil and gas lease sale 2500 acres of submerged land in the portion of Cook Inlet in dispute.

The United States brought suit shortly thereafter in the United States District Court for Alaska to quiet title and for injunctive relief arguing that the state had no authority to lease submerged lands in area of the high seas.

Justice Harry A. Blackmun: Mr. Randolph, at that point, does your office does have any knowledge of why they chose that route rather than an original action here?

Mr. A. Raymond Randolph, Jr.: I inquired about that Mr. Justice Blackmun because I was not there at that time.

My understanding is that that disclosing all the details that the idea was not the burden of this Court with the -- what appeared to be at the time a quite simple case.

Unfortunately, I think that -- I think that prediction was not a very good one.

And the case is now here.

Alaska claimed that in response that Cook Inlet is a historic inland waters and therefore the state had title to the submerged lands.

The District Court compiled a -- in the District Court, the parties compiled a record and after an eight-day trial, the District Court issued a memorandum opinion holding for the State of Alaska dismissing the United States complaint.

The Court instructed counsel for the State of Alaska to prepare findings of fact, conclusions of law which counsel did in Court subsequently signed.

The United States appealed.

On appeal, the Court of Appeals for the Ninth Circuit affirmed in a per curiam opinion.

The Court of Appeals subsequently state its mandate regarding foreign fishing under disputed areas of Cook Inlet on motion of the United States matter which I'll discuss later that the case is here at all, that there's any question whatsoever about the status of Cook Inlet is a function of its size and for convenience, I'd like to refer the Court to the map in the back of our brief.

Justice William J. Brennan: Have you printed this Mr. Randolph?

Mr. A. Raymond Randolph, Jr.: It's the map, Mr. Justice Brennan in the back of the brief.

Justice William J. Brennan: Thank you.

Mr. A. Raymond Randolph, Jr.: I can't emphasize enough that this is a vast area, incredibly vast.

There's a line, the Court will observe, a Kalgin Island to the north in Cook Inlet, it's developed later as a 24-mile closing line.

From that line down to the line drawn across Cape Douglas to the west and Point Gore to the east, as I said before, is a vast area of water.

One could easily fit within that area all of the Chesapeake Bay, all of the Delaware Bay and all of Long Island Sound.

In the area above the line at Cook Inlet, one could fit another Delaware Bay and another Long Island Sound.

Justice William H. Rehnquist: So, did this record give any square mile figures for the area that you're talking about?

Mr. A. Raymond Randolph, Jr.: I have the square mile areas that the geographer of the state department gave me after using maps in the overlays.

So, I could give them to the court.

Justice William H. Rehnquist: Are they in the record?

Mr. A. Raymond Randolph, Jr.: They're not in the record and other than by the maps and these are material developed in the maps.

The disputed area constitutes approximately 5400 square miles, the entire inlets about 7400 square miles.

Delaware Bay and this is from the 1946, 1940 Bureau of Census Report, Delaware Base about 665 square miles, Chesapeake Bay 3200 square miles, Long Island Sound about 13,000 miles.

Justice William H. Rehnquist: How big is Lake Michigan?

Mr. A. Raymond Randolph, Jr.: I have absolutely no idea sir.

Justice Potter Stewart: The north of Kalgin, north and east of Kalgin Island, that's a juridical bay, isn't it concededly?

Mr. A. Raymond Randolph, Jr.: Yes.

Yes.

Justice Potter Stewart: And I suppose there are some juridical bays?

Mr. A. Raymond Randolph, Jr.: There are juridical bays within --

Justice Potter Stewart: Kachemak Bay for example --

Mr. A. Raymond Randolph, Jr.: Yes and Kamishak Bay.

Justice Potter Stewart: Kamishak Bay.

Mr. A. Raymond Randolph, Jr.: To the west are juridical bays.

Justice Potter Stewart: Over the headlands are maybe more than Kamishak.

Mr. A. Raymond Randolph, Jr.: There's a map in the second volume of the appendix that is bound up in the volume that clearly indicates that is the map that the United States scripted at the foreign countries in 1971.

The question here is whether within the disputed area, the State of Alaska owns a submerged land and state entered the union in 1959 on same terms as the other state and was subject to the Submerged Lands Act which gave, in which the United States conferred title on states three geographic miles from the seaward boundary of their inland waters.

The question thus becomes whether this area constitutes inland waters and the Court, this Court in the California case, instructed that one must look to the convention of territorial seas for the definition of what constitutes inland waters.

At this point, I'd like to pause and I know the Court is well aware of this but in a summary fashion, the international law recognize as a three-fold division of the sea.

Inland waters are bodies of waters that are partly within the territory of a nation.

The nation has complete sovereignty over those waters.

It can deny the right of entry to any foreign vessel and has the right to exclude foreigners from entry into those waters.

Moving out from the inland waters, one reaches the territorial sea which is a specified sea where the inland waters of the United States is a traditionally three geographic miles.

The state or nation has complete sovereignty over that area of the territorial sea but it must allow innocent passage of vessels through that.

Beyond the territorial sea lies the high seas where normally a state may not exercise control.

However, in light of the convention that I've just mentioned, there is a contiguous zone between the -- that runs along the territorial sea and in the high seas and for special purposes, the nation may exercise control.

United States has done that.

As we've extended our exclusive fishery jurisdiction out, nine additional miles from the three-mile territorial sea.

Chief Justice Warren E. Burger: Beginning where?

Mr. A. Raymond Randolph, Jr.: Beginning at the three-mile line.

Its 12 miles from shore from the low mean watermark and that was done by statute and it is now subject of negotiation, I understand the law of the sea conference.

Justice Potter Stewart: Shore, as you say might include the --

Mr. A. Raymond Randolph, Jr.: Inland waters.

Justice Potter Stewart: -- inland waters.

It might be a --

Mr. A. Raymond Randolph, Jr.: Well, yes sir.

From the boundary --

Justice Potter Stewart: Right.

Mr. A. Raymond Randolph, Jr.: From the coastline.

Justice Potter Stewart: Shore doesn't mean land, that's what I gather?

Mr. A. Raymond Randolph, Jr.: Yes, from the coastline.

Justice William J. Brennan: What part of this -- what on this map shows what the United States says comprise inland waters --

Mr. A. Raymond Randolph, Jr.: From --

Justice William J. Brennan: In Cook Inlet.

Mr. A. Raymond Randolph, Jr.: From Kalgin Island north.

The land across Kalgin Island Mr. Justice is 24 miles long, some of the straight lines.

Justice William J. Brennan: That's three miles sea ward of that.

Mr. A. Raymond Randolph, Jr.: Three miles, well that would be territorial, that's what it is.

But from Kalgin Island north with what the United States claims is the only in --

Justice William J. Brennan: What's the distance between that line and this lower line from Cape Douglas above?

Mr. A. Raymond Randolph, Jr.: Well, the line, there's somewhat -- the line from Cape Douglas through Barren Island across the Point Gore is approximately 75 miles long.

Justice William J. Brennan: What I was wondering is, what's the distance from the Kalgin line to that line?

Chief Justice Warren E. Burger: The Cape Douglas line.

Justice William J. Brennan: The Cape Douglas line.

Mr. A. Raymond Randolph, Jr.: Very approximately 102 miles.

Justice William J. Brennan: 102 miles.

Now, the lease we're talking about -- is there any of that within the territorial sea or is it all outside?

Mr. A. Raymond Randolph, Jr.: No, it's all outside of the three-mile.

Justice William J. Brennan: Outside.

Mr. A. Raymond Randolph, Jr.: Yes.

Under the convention, there's no question whatsoever that Cook Inlet is a bay.

The convention in Article VII defines bays as well-marked indentations whose penetration is such in proportion to the width of the coast that they contained landlocked waters.

Cook Inlet meets that definition but under the convention, just because a body of water can be defined as a bay, it does not mean that it contains inland waters.

The convention prescribes a geographic test for determining whether a body of water is inland waters.

The geographic test is whether the distance between the natural headlands and the natural headlands here at least the Court -- the District Court said were 47 miles wide that is the net line is not shown on the map.

It's from Cape Douglas to Cape Elizabeth.

It's approximately 47 miles and so if you drew a line across the natural headlands of Cook Inlet, one would not come to the conclusion that this is a juridical bay and you'd have to use a fallback line.

You'd have to move a 24-mile line up into the penetrate -- the Alaskan Coast until you reach Kalgin Island and at that point, you could draw a 24-mile line in closing the maximum area of water.

So the question -- if one looked only at those provisions of the convention, one would come to the conclusion obviously that the area in dispute here does not comprise inland waters.

However, the provisions of the convention on Article 7 to which I've just referred have as a last paragraph the foregoing provisions do not apply to so-called historic bays.

The question therefore is although Cook Inlet does not comprise a juridical bay in the area that we're talking about, does it nevertheless comprise an historic bay.

In determining that question which is one of international law, this Court has looked to a comprehensive United Nations study entitled the Juridical Regime of Historic Waters.

Three broad factors have to be taken into account in determining whether an area is historic waters, historic inland waters, one that exercise of authority by the claiming nation to the continuity of that exercise whether it's been done for a considerable length of time and three of the attitude of other nations, acquiescence by other nations in the exercise, the question becomes somewhat unreal before this Court though because what we're talking about is really a domestic dispute and it's difficult to talk about the attitude of other nations and claims being opposed when it's really an internal dispute within the United States, between the state and the Federal Government and therefore this Court has instructed that in looking at these questions, one must treat them as if made by the national sovereign and oppose by other nations.

In that sense, this Court approaches the problem as if it were an international tribunal adjudicating a claim asserted by the United States and opposed by other countries and the rest of the countries in the world.

In that light, it's quite important to observe that the longstanding United States foreign policy has been to limit national claims, territorial claims in the oceans of the world, whether made by expanding inland waters or by extending the territorial sea or in any other matter.

Justice Potter Stewart: It's been pretty aggressive and claims to the Outer Continental Shelf, have we not?

Mr. A. Raymond Randolph, Jr.: Yes, but the Outer Continental Shelf is not an exercise of territorial jurisdiction so that it excludes ships for example.

Justice Potter Stewart: Well, but --

Mr. A. Raymond Randolph, Jr.: We may mine there and we're in the process Mr. Justice Stewart of course in the law of the sea conference is now going on and negotiating.

Justice Potter Stewart: I know that and our claims were quite extreme.

Mr. A. Raymond Randolph, Jr.: The -- we think that the definition of international boundaries that the United States has traditionally asserted where it's heavily against Alaska's assertion that in the past, certain actions or inactions of the United States gave rise to historic title.

The other nations of the world are aware of our foreign policy in regard to jurisdictional boundaries and only the most clear or direct in longstanding action by the United States would alert them to a change of our normal posture attitude.

We think there's no such evidence here and I would like to discuss in sequence, three different incidents or groups of incidents on which the District Court relied that we think do not give rise to historic title.

First, there's the Shelikof Strait incident.

Second, I'll discuss in general, Fisheries' regulations.

And third of all, the Gharrett-Scudder line.

I might add that nearly everything in this case involving a claim or an assertion or whatever that was relied upon to establish sovereign involves in some way or another fishing regulations.

There are some doing in the 19th century with sea otters but nevertheless, in the 20th century, there are mostly all fishing regulations and the Shelikof --

Justice Potter Stewart: The party gives much weight to the era when Russia was in control of --

Mr. A. Raymond Randolph, Jr.: Neither party nor the Court.

Justice Potter Stewart: Did they destroy, although, there is some history.

Mr. A. Raymond Randolph, Jr.: There is some history.

The Russian infiltrator --

Justice Potter Stewart: Extravagantly a claims by the czar.

Mr. A. Raymond Randolph, Jr.: Yes, which were quickly retracted upon protest by the United States and Great Britain.

Justice Potter Stewart: So, you're not going to deal with that at all.

Mr. A. Raymond Randolph, Jr.: I'm not, the District Court, I don't belief relied upon it, and I don't believe that the counsel for the opposite side has either.

I'm --

Justice William H. Rehnquist: Well, why do you stress the fact that they were only disputes about fishing?

Mr. A. Raymond Randolph, Jr.: I -- well, I'd like to get to that.

I am -- that's exactly what I'm going to deal with.

In the Shelikof Strait incident, I think I can deal with it without talking in terms of fishing but in fact it was a fishing incident.

The District Court turned this, the clearest assertion of sovereignty and I take it the clearest assertion that a historic title had ripen as a result of this incident.

It took place in April of 1962 when six Japanese ships arrived off of the Kodiak Island fishing grounds to search for schools of herring.

Alaska knew ahead of time that the Japanese ships were coming.

Indeed, the Governor of Alaska in March of 1962 wrote to Undersecretary of State, George Ball, advising him of the entry into the area of the Japanese fishing vessels and asserting that Alaska was going to take action if they entered Alaskan waters and got no response.

The fishing vessels went around Kalgin Island in a clockwise direction of the Japanese fishing vessels once and caught no fish and by this time, the Governor of Alaska was becoming concerned.

He telegrammed again to the State Department.

The State Department sent a representative, Mr. Yingling, to the Governor's office in Junno and Mr. Yingling advised the Governor that if they entered Cook Inlet, there was nothing he could do about it because on an initial reading Cook Inlet comprised high seas.

The fishermen went into Cook Inlet on April 5th and went around the Barren Islands and then down to the Shelikof Strait.

Justice William J. Brennan: Without now -- find, where the --

Mr. A. Raymond Randolph, Jr.: The Barren Islands --

Justice William J. Brennan: No.

Mr. A. Raymond Randolph, Jr.: The Barren Islands lie right in the middle of Cook Inlet of the line passing --

Justice William J. Brennan: Oh yes, I have them.

Mr. A. Raymond Randolph, Jr.: They went around the Barren Islands.

In the next day, they sailed down into the Shelikof Strait.

Ten days later, 75 miles from the nearest entrance point to Cook Inlet, they were seized and arrested by Alaskan fishing authorities.

The fishermen were held, the captains of the vessel, of the three vessels were held and subsequently signed four days later in agreement stating, and this is set out on the -- in the appendix on pages 1186 to 1188 that they would not fish in the Shelikof Strait, until -- “until final determination by a Court regarding whether the Shelikof Strait in adjacent waters are international waters.”

There is no mention in the agreement that these fishermen signed of Cook Inlet.

Nevertheless, on May 3rd, Japan protested the seizure of these fishing vessels.

Japan said, these are not inland waters.

The Shelikof Strait has been fished before.

Indeed, we have evidence that the Japanese fished there in 1961 and although we understand that the questions to be resolved by a Court, we consider this an international or a unilateral assertion of sovereignty that we will not find binding.

The United States replied to the Japanese note of protest on April -- on June 19th saying that this was a matter to be cited by the Court.

The United States pointed out that it was not clear whether all of the vessels that were seized were within three miles from the shore of Shelikof Strait in which case if they were within the three-mile limit.

They were in territorial seas and maybe that seizure was proper at that time.

But in any event, the United States in their response to the protest said, “It's not clear to us whether they were in the high seas or in the territorial seas and we'll leave that to a court to adjudicate.”

The Court never did adjudicate the actions against the Japanese who were subsequently dismissed.

The next significant event, I suppose, in this sequence is that in January of 1963 at a breakfast at the Whitehouse where a number of west governors of western states were present plus the Attorney General Robert Kennedy and the President John F. Kennedy as in the side the President of the United States said to the Governor of Alaska, "You did the right thing."

This, the District Court found to be the clearest assertion of sovereignty over Cook Inlet.

We think that that's a mistake of law for a number of reasons.

The number one, obviously, the seizure didn't take place in Cook Inlet.

It's like arresting a ship off Cape Hatteras as an assertion of sovereignty over Chesapeake Bay.

The District --

Justice William H. Rehnquist: In international law recognize the doctrine of hot pursuit?

Mr. A. Raymond Randolph, Jr.: These ships were tracked from the time that they entered Alaskan waters until the time that they left.

The -- that was ten days later that they were seized in the Shelikof Strait.

I don't think there's any evidence in the record that says that Alaska could not have seized them sooner.

They went through the Shelikof Strait already once.

Chief Justice Warren E. Burger: The statement that you made of putting this aside, do you suggest that refers to what the Governor did in bringing the suit or in dismissing the suit?

Mr. A. Raymond Randolph, Jr.: The record is totally unclear on that.

It's page 281 of the appendix.

Chief Justice Warren E. Burger: Did the district judge undertake to sort that out?

Mr. A. Raymond Randolph, Jr.: He made a finding of fact.

The finding of fact is I believe -- I don't have it in front of me.

It's 218, page 218 of the first appendix is where this was stated.

But he said, the Governor was told by the president that he did a right -- the right thing in seizing the vessels.

That's not what the governor's -- the governor's testimony was but we'll accept that.

We're not challenging the findings of fact.

Even accepting that is not clear that the vessels were they were, whether they were in the territorial sea or within the high seas.

More than that, we don't even think this is a clear assertion of sovereignty over Shelikof Strait, let alone Cook Inlet 75 miles away because of the fact that it's never really been determined exactly where these vessels were, whether they were in the high sea otherwise known as the high sea areas.

Second of all, and more important, I suppose, is that this could hardly be considered an incident to give rise to a historic title.

One of the requirements is that other states, nations, acquiesce and assertion of sovereignty.

So, even if this were a clear assertion which we don't think it is.

Even if this were an assertion of sovereignty over Cook Inlet, nevertheless, it's met by an immediate response of protest by the Japanese Government.

On top of that, in regard to the Shelikof Strait itself, since 1962, the evidence in the record is that Russian throwers had been in the Strait, I cite appendix 206, Japanese ships have navigated through the strait, appendix 232 and Canadians regularly fish for halibut there.

Justice Potter Stewart: Shelikof Strait is not an issue here, is it?

Mr. A. Raymond Randolph, Jr.: No it's not.

It's not.

And the question is why does --

Justice Potter Stewart: I just thought it was rather clear at least for purposes of this case that three miles out of Kodiak Island and from the mainland of Alaska, of course, there's territorial sea and the Shelikof Strait, but otherwise, the waters of the Shelikof Strait are international waters.

Mr. A. Raymond Randolph, Jr.: Alaska asserts sovereignty over them.

At least, that is the intent of their seizure of the Japanese --

Justice Potter Stewart: But that's not -- the waters of the Shelikof Strait are not at all an issue in this case.

Mr. A. Raymond Randolph, Jr.: That's precisely my point Mr. Justice Stewart.

Justice Potter Stewart: It's not my point and my question to.

Mr. A. Raymond Randolph, Jr.: The point is that the District Court said, this was the clearest in the entire record.

This was the clearest assertion of sovereignty over Cook Inlet, this particular incident that I refer to.

Now, beyond that, there are other fishing regulations that are involved in this case that applied to the Cook Inlet area from the years 1906 until Alaska became a state.

The one important factor that I like to bring about them is that not a single time in the entire history of this inlet, the disputed portion of this inlet was a foreign vessel or a foreign national ever arrested, ever, not one.

Now, could be, one could say that nevertheless, there could be an assertion of sovereignty because Cook Inlet was so well recognized, so well respected by the other nations of the world that date and no nation dare to enter.

No nation dared put its ships into Cook Inlet without seeking specific permission.

That's not the case in regard to Cook Inlet because the fact of the matter is that there has been foreign fishing by Canadians for halibut, within the inlet.

It's documented in the record for 1943 through to 1970.

Now, I'd like to refer to the Court, the one finding of the District Court's opinion because we don't dispute it but I think it's rather misleading.

It's on page 101, or finding 101 on page 44 (a) of the appendix.

I'm sorry, petition for certiorari.

101 says that the -- the finding 101 says that the fishing for halibut by Canadians was de minimis because there were possibly only two undetected instances before Alaska statehood 1959 and after that, careful with the language, only five Canadian vessels have fished for halibut in Cook Inlet.

That's absolutely correct.

What the Court has not mentioned is that happened on 20 different occasions for a total of 115 days.

Nevertheless, the point of the Court's holding in this regard that one can disregard the entry of Canadian vessels into Cook Inlet because of their infrequency is in our view a direct contradiction of international law.

The juridical regime that the Court has referred to points out that it may be that no action is necessary but whenever any action is necessary in order to prevent -- in order to assert sovereignty over a particular area, that action must be taken or historic title cannot ripen.

So therefore, Canada or the Alaska or the United States when the United States have this territories, is fair to take any action against the Canadian vessels, we think stops, prevents historic title from ripening.

Now, the District Court pointed out, nevertheless, there were a great many instances of action against Americans, United States citizens that were fishing in Cook Inlet.

Let me point out that throughout the entire findings of fact in the District Court's opinion, in the 9th -- in the 20th century, the District Court documented six arrests of American citizens prior to statehood within the disputed area of the inlet, just six.

After statehood, on one day, July 6, 1970, the District Court documented two arrests of the United States citizens.

There are some testimony in the record and we think the District Court could not rely upon this of officials at who had various times patrol Cook Inlet who were asked, what would you have done had you seen a foreign vessel.

They testified, “Well, we would have seized it or we would have done this or that.”

The District Court, we think improperly relied upon that testimony, the requirement of international law is that an assertion of sovereignty be open and notorious.

It has to give other countries of the world an opportunity to respond.

The inner intentions of officials who patrolled Cook Inlet, we do not think rises to that kind of open and notorious action and the District Court properly relied upon it.

As far as fishing is concerned in general, the fact that the United States regulates fishing of its own citizens even on the high seas is of no consequence whatsoever for determining whether internationals sovereignty, sovereignty as over inland waters has been asserted over a particular area.

The United States can exercise sovereignty or exercise authority over its own United States citizens regardless of whether they're in the territorial sea, the contiguous zone or even on the high seas itself.

The fact that in the middle of Cook Inlet, United States citizens, six of them were arrested in the 20th century, to us is meaningless, to the District Court, quite important.

We think that was clear error.

The Court also relied upon various other particular actions, the Alien Fishing Act that was passed in 1906.

The District Court said this was a clear assertion, the earliest clear assertion of sovereignty.

I invite the Court to look at the Act when it says that no alien can fish within the waters of Alaska.

That doesn't tell you where the waters of Alaska are.

It doesn't tell you whether the United States exercised jurisdiction.

Before I leave this point, I think the most important, one of the most important facts is that in 1952 and again in 1953, before Alaska became a state, there was a controversy or question developed within the bureau of fish and wildlife that was patrolling the area about whether they could arrest the foreign vessel within the middle of Cook Inlet.

They said and they determined Director Day who was then the national director of the Fish and Wildlife Service determined and instructed the people in Alaska that they could not because the middle of Cook Inlet was high seas.

Again, I think that undercuts any idea that this is a claim of sovereignty and it was error for the District Court to rely upon these facts which occurred.

Nevertheless, we think are not relevant.

Justice Byron R. White: You're going to get to the Gharrett-Scudder maps.

Mr. A. Raymond Randolph, Jr.: Right now.

The state says that one of the most significant assertions of sovereignty over Cook Inlet were the Gharrett-Scudder maps.

Curiously, in the memorandum of opinion of the District Court, there's not a word about the Gharrett-Scudder maps.

They are mentioned in the findings of fact but in the opinion which sets forth the reasons why the District Court reads us result, there's not a word about the Gharrett-Scudder maps.

The facts of the maps which are reproduced as two maps 8502 in the supplemental material here.

They were transmitted to Canada for the purpose of fisheries management.

The idea was that Canada wanted to see where the high seas area would be when the United States would prevent net fishing as examined by its own United States citizens.

The maps if the Court looks at them were drawn in straight lines.

The United States does not use straight lines to define its international boundaries.

It uses --

Justice Harry A. Blackmun: Where Mr. Randolph again?

Mr. A. Raymond Randolph, Jr.: 8502, there are two maps.

Justice Harry A. Blackmun: 8502.

Mr. A. Raymond Randolph, Jr.: 8502.

United States does not use straight base lines.

It uses sinuosities that follows the coastline.

It draws undulations.

On top of that, Canada could have hardly conceived this as an assertion of sovereignty if it looked at the straight baselines it would be a sudden departure.

The maps were drawn by two Department of Interior employees which makes it suspect immediately how could that be that one would suspect that the geographers of the state department would set the international boundaries.

But beyond that there are not even straight baselines in conformity with the convention because the convention requires for straight baselines that the lines touch land each time a straight line is drawn.

If you look at this map, you'll find islands that are ringed by square lines.

They don't even conform to that.

In point of fact, the District Court relied upon this.

We think it was a mistake.

I won't mention the disclaimers.

I think they're adequately dealt within the record.

Thank you.

Chief Justice Warren E. Burger: Mr. Phillips.

Argument of Thomas M. Phillips

Mr. Thomas M. Phillips: Mr. Chief Justice and may it please the Court.

In the short time that I presume to take this morning, I would like to ask the Court or invite the Court's attention to two points, two issues.

The first issue maybe fairly stated I think in this inquiry has there been an expressed or explicit claim of jurisdiction over Cook Inlet.

If so, and Alaska claims it is so, then the two following elements we think fall easily into patent, the continuity of the assertion, the acquiescence of foreign nations.

In 1924, Congress enacted what is popularly known as the White Act.

The purpose of the White Act was to protect the fisheries of Alaska.

The Act authorized the Secretary of Commerce.

In Subsequent years, the Secretary of Interior, and I quote, “To set a part and reserve fishing areas in any of the waters over which the United States has jurisdiction.”

These are the key words, “any of the waters over which the United States has jurisdiction.”

These words set the stage.

For what thereafter, the Executive Department of the Government was to do was it to set apart Cook Inlet as waters over which the United States claimed jurisdiction.

Was it to set aside only a part of the waters, for example three miles from the coastlines?

What did the department, the Executive Branch do?

It set apart 12 fishing areas, geographically by name, by definition.

In the 11 of those 12 areas, the secretary was careful to limit jurisdiction claimed by the use of the words territorial, coastal waters.

It might be helpful to the Court to look at just how this was done, page 1171 of volume 2 of the appendix.

Look at the definition for example.

I'm selecting this at random, of Bristol Bay.

The Bristol Bay area is hereby defined to include all territorial, coastal and tributary waters of Alaska from Cape Newenham, etcetera.

Look at the definition of the Kodiak area.

The Kodiak area is hereby defined as to include the waters of the mainland shore extending and so on and the territorial coastal and tributurial waters of Alaska.

Now, traditionally, the Solicitor has argued this, both here this morning and in his brief and we don't dispute it.

The United States sets it's delimited its claim of territorial sea to the breadth of three miles and what then is the significance of the use of this language territorial coastal waters.

Secretary of Interior, Udall, in a letter dated April 20, 1962 to the Secretary of State explained the significance of these words and he said that the use of the territorial coastal waters indicated an intent to limit the claim of sovereignty in those districts to three miles.

We may agree that's in line with this traditional assertion of three miles for territorial sea.

I have said, this was done in 11 of the districts.

Look at the definition of Cook Inlet, the 12, page 1171, definition Cook Inlet area.

The Cook Inlet area is hereby defined to include Cook Inlet is tributary waters an all adjoining waters, north of Cape Douglas and west of Point Gore, the Barren Islands are included within this area.

Notice the absence of the words territorial coastal waters.

In talking about territorial coastal waters, Secretary Udall and probably so said the use of that islands and no I'm quoting, “Negates any assertion of jurisdiction over the entire waters.”

But what about Cook Inlet?

We suggest and the Government has never answered this argument that if today, the federal government was the author of that definition, was given the chore of asserting jurisdiction overall of Cook Inlet, he could not have chosen clearer or more precise words, are more encompassing words than the words “all of the waters.”

Justice William J. Brennan: But you say this argument was Mr. Phillips?

Mr. Thomas M. Phillips: This -- this Mr. Justice Brennan is the regulations put out each year for 33 years by first the Department of Commerce, Secretary of Commerce and later years, the Secretary of Interior, defining as the Act required him to do to set apart certain areas.

In the lower court, the Government's chief witness was a man named Howard Balso who had testified that he have some experience and expertise in drafting these definitions.

We've asked him if he could draft one so far as Cook Inlet was concerned that could use words that would more clearly assert jurisdiction than the language I've read to you and of course he said he could not.

Now why, the Court may ask was Cook Inlet singled out.

It's not an accident because it was done year after year, after year for 33 years, from 1924 to 1957.

Why?

There are three reasons and they're undisputed.

First, there was judicial precedent for this.

In 1892, a Federal District Court sitting in Alaska had held that no part of the waters of Cook Inlet were international waters.

Secondly, as a reason, Cook Inlet unlike any other of the submerged lands cases that this Court has said and considered though it be enlarged body of water, is uniquely surrounded by the lands of Alaska.

If the Court please, here as I point, is Cook Inlet.

We look at the whole map of Alaska as we take it here.

You see this area that I am pointing to, Cook Inlet, almost surrounded by the lands of Alaska and this geographic fact undisputed was of significance to the District Court in the Kodiak decision in 1892 and it is dealt with that length by the lower court in this case.

A third reason why Cook Inlet was singled out, the evidence is undisputed and the lower court found in these findings of fact that from the very beginning.

All of the waters of Cook Inlet have been vital to the interest of the inhabitants of the shores of Cook Inlet.

Justice Potter Stewart: So, what you're telling us about the effect of White Act is certainly a strongly controverted by the secretary entrusted with its enforcement that is and the Secretary Udall back in April of 1962 who says these regulations were not intended to enlarge or extend the territorial waters of Alaska in a legal or jurisdictional sense.

He also says that they were enforced only three years, 1957, 1958, 1959 and never enforced against any foreign nationals.

Mr. Thomas M. Phillips: Well, I noticed, you're looking page 831 of the record and that's the letter of April 20 --

Justice Potter Stewart: April 22 --

Mr. Thomas M. Phillips: Yes, sir.

Now, in the first place, you'll notice that he's not talking about Cook Inlet and he's stressing as I pointed out a moment ago the use of the words territorial coastal waters.

Now, if it's fair for him to say these words limit jurisdiction and it is fair for him to say that.

It's fair for us to say when those words are not put in the definition of Cook Inlet but the words are “all the waters”, then I think Secretary Udall's reasoning enforces the claim, Mr. Justice Stewart that Alaska makes here.

At least that's our argument.

That has been our contention.

Justice Potter Stewart: It is true, is it not that the way that they Act was not ever enforced against non-Americans?

Mr. Thomas M. Phillips: Enforced in this sense and we claim this is enforcement that there were -- it was distributed throughout the world.

It was the basis upon which repeated arrests had been made of American citizens.

The lower court found that these patrollers were open and notorious and that any foreign nation would have been put on notice of the United States claim.

Justice Potter Stewart: Not netting salmon, didn't it?

Mr. Thomas M. Phillips: Sir?

Justice Potter Stewart: It didn't have primarily to do with netting of salmon?

Mr. Thomas M. Phillips: Yes, salmon was the important fishery.

The third reason that Cook Inlet was pointed -- was singled out was that which the trial court found and based on undisputed evidence as far as we're concerned.

Now, accepted by the federal government is that if this fishing had not been controlled for the benefit of the American people, those fishing areas would have been destroyed to the economic disaster of out of people of America and the citizens and residents of Alaska.

One final point, Chesapeake Bay is a historic inland bay.

It has substantially the same words that were seized upon by a Court that recognized Chesapeake Bay.

The language that described a revenue district, Chesapeake Bay overall the waters, shores, bays, harbors and inlets comprehended within the line drawn from Cape Henry to the mouth of the James River.

If it's logical that Chesapeake Bay was held to be by this language, a historic inland bay by the same language is logical that the trial court found that Cook Inlet was a historic inland bay.

Let me pass to the second issue that I want to talk about.

The claim like all out Alaska has done has been approved that this is a historic territorial sea rather than a historic inland bay.

We say that argument is wrong both legally and factually.

First, the juridical regime --

Chief Justice Warren E. Burger: Your paper covers up the signal but you're now on your colleague's time.

Mr. Thomas M. Phillips: I'll be very quick, Your Honor.

The juridical regime points out that a state which forbids foreign ships to fish therein undisputedly demonstrates by such action as desired to act as a sovereign.

Well, of course, where a nation's laws have been so clearly stated as a judicial regime also recognizes the foreign nations can recognize those laws and not come in that event of course, there's no occasion to enforce the law and the findings bear on that.

Let me legally address that argument however, the argument that we've shown only a territorial sea.

The dominant -- the juridical regime states that the dominant opinion is that when you talk about historic bays, you are talking about inland waters.

The convention on territorial sea and contiguous zone, Article 7 permits a line to be drawn between the entrance points of a bay where the entrance points are not farther than 24 miles apart.

That line encloses inland waters.

Section 6 accepts historic bays from that 24-mile restriction so that if you draw a line across the entrance points on the exception of historic bay, that line necessarily encloses inland waters.

I leave -- I trespass to the four on that point.

I thank you.

Chief Justice Warren E. Burger: Mr. Cranston.

Argument of Charles K. Cranston

Mr. Charles K. Cranston: Mr. Chief Justice and may it please the Court.

This Court in the second Louisiana case indicated that historic bay cases such as these raised principally factual issues and that since the doctrine of historic bays are somewhat imprecise, it is to the trier of fact to which this Court leaves the initial determination.

The -- therefore, the evidence as to what constitutes a historic bay is in Alaska's opinion extremely important and is the point upon which this case will actually turn.

Therefore, I would like to comment briefly on the evidence.

As this Court is aware and as there is no dispute, there are three criteria evidentiary wise upon which a bay's status is characterized as historic, that is to say, the exercise of sovereignty over a considerable period of time with the acquiescence of foreign nations.

With respect to sovereignty, the striking fact of this case is that witness after witness, without objection by United States incidentally relative to this petition for writ of certiorari.

No objection was made as to the introduction of any of this evidence in the petition.

Witness after witness testified to continual patrols, continual arrests, continual boardings of vessels and continual vessel arrests from the year, if we begin with the Kodiak case, 1892 up through 1971 and the boardings and patrols were testified too by the principal witness of the United States, Mr. Howard Balso as being a very significant act of enforcement and what was the enforcement to do?

Principally, two things:one, witness after witness, uncontradicted and the Court so found testified that Cook Inlet from the line drawn by the Court, that is to say Point Gore, Barren Islands, Cape Douglas, was patrolled for the purpose of enforcing the Alien Fishing Act, an Act which specifically prohibited aliens fishing in waters of Alaska under the jurisdiction of the United States.

The United States would tend to disregard this evidence and say that the definition of waters of Alaska was unclear in the Alien Fishing Act.

But it is important to recognize that the Act was passed only six years after the Kodiak decision of which Congress must have been presumably aware of which defined all of Cook Inlet as inland waters of the United States not international waters.

That definition was incorporated into the Alien Fishing Act and enforced by agents and patrol officers of the United States.

It is important that testimony on this point is clear and uncontradicted and the lower court found this to be so.

Secondly, as to continuity, two expert witnesses called by the State of Alaska testified that based upon their historic research again uncontradicted and found by the lower court that the usage or that the activities by the United States over all of Cook Inlet were such as to have developed into a usage.

This is the criteria specifically set forth by the legal document which no one to this date has objected to and all agree as the criteria by which historic bay status is achieved.

That is the jurisdiction of the United States had established a usage over all of Cook Inlet.

Two expert witnesses in the area, in the field of history again Alaska complied with what this Court had set to be the evidentiary standard and cases of this sort that is, they are principally factual cases left to the discretion of a trier of fact to determine.

Based upon unrefuted evidence, the trier of fact in this case found that the sovereignty of the United States had been exercised, had developed into a usage over all of Cook Inlet for a considerable period of time.

Perhaps the most interesting feature of this case is the third requirement and that is the requirement of acquiescence.

First, I would like to deal since it was dealt at length in the Solicitor's argument with the Shelikof Strait incident.

Contrary to the United States' position and this is undisputed again in the facts.

Consistently throughout this case, both in the trial court, the Court of Appeals and now this Court, the Government has refused to recognize the significance of this incident with respect to Cook Inlet.

One need only refer to the Japanese note of protest which appears at page 3 (a) of the appendix to the United States' brief.

The Japanese, notwithstanding what the United States now says certainly believed that the sovereignty asserted by the State of Alaska was over Cook Inlet.

They certainly believed that the agreement entered into by the Japanese fishermen not to fish in Shelikof Strait and Cook Inlet applied to Cook Inlet.

The note itself says, the commitment made by the east specific fisheries company to the Alaska state authorities to abstain from operations in the Shelikof Strait and the Cook Inlet was made without knowledge of the Government of Japan.

Justice William J. Brennan: What was that the appendix reference?

Mr. Charles K. Cranston: Mr. Justice, that appendix reference is page 3 (a) on the brief of the United States.

Justice William H. Rehnquist: 3 (a)?

Mr. Charles K. Cranston: Yes, it's the last -- it's the page right before the map at the very end of the book, Your Honor.

Justice Potter Stewart: It's on paragraph 4 of Japan's protest.

Mr. Charles K. Cranston: The arrest of the ships is important.

However, more significant are the actions of Japan and the United States subsequent to the arrest, faced with the agreement not to fish in waters of Cook Inlet, what did the Japanese do?

The Japanese did, it is true and the record is undisputed enter a protest.

However, in response to this protest, the United States never at any time recognized or admitted to Japan or proclaimed to Japan that the waters involved to with Shelikof Strait and Cook Inlet were international waters.

In fact, it said, this is a question which is more properly left to the decision of a Court and this was done, this response incidentally was done contrary to the advice of Mr. Yingling who was then the responsible attorney for these matters in the Department of State.

That is what the United States did but even more significant is what did the Japanese do?

From that time, the Japanese have not fished in Cook Inlet.

Justice Potter Stewart: What's the problem with this Japanese seizure in 1962 was that it was not in Cook Inlet but it was in Shelikof Strait and that has -- that's all spelled out in Japan's protest.

In any reference to Cook Inlet is equivalent or analogous to what we call casual dicta um in the court opinion.

It seems to me, it has had to do with the seizure in Shelikof Strait which is not an issue here in this case at all.

After the protest was about.

Mr. Charles K. Cranston: Mr. Justice, I fully agree that the arrest had to do with Shelikof Strait but what is important is the agreement entered into after Shelikof Strait to which the Japanese note -- upon which the Japanese has note commented and the actions of Japan in face of that agreement, after the agreement was entered into and after its note of protest complaining about the agreement's application to Cook Inlet.

Chief Justice Warren E. Burger: Are you referring to the agreement that the captain or the crew made after they had -- their ship had been seized?

Mr. Charles K. Cranston: That is correct Mr. Chief Justice and that is the agreement which was referred to and complained about in the Japanese note.

Chief Justice Warren E. Burger: Don't you think there might be some question about the status of notes secured under an agreement if you call it from the crew of the small fishing vessel under those circumstances?

Mr. Charles K. Cranston: The --

Chief Justice Warren E. Burger: Might you not have some Miranda problems and few others like it?

Mr. Charles K. Cranston: Aside from the fact that we are dealing in what is essentially a civil case Mr. Chief Justice, we do not rely on the agreement as acquiescence by the Japanese.

We do rely on the response of the Japanese Government after the agreement was entered into and after the protest was made, that being the fact that in face of continuing State of Alaska jurisdiction over Cook Inlet as expressed through its regulations which the testimony again uncontestedly points out was disseminated to Japan, that is regulations which state all of Cook Inlet within the line, Gore, Douglas, Barren Islands are waters of Alaska for over which it asserts jurisdiction.

In face of those agreements, the Japanese have not entered Cook Inlet.

They have refrained from entering Cook Inlet and this we feel is the significant fact.

The Governor of Alaska testified that the Japanese have not entered Cook Inlet and the evidence bears this point out.

Chief Justice Warren E. Burger: But they roamed into Cook Inlet before that?

Mr. Charles K. Cranston: The only recorded incident of their entering Cook Inlet is Mr. Ishi Mori's testimony at the trial where for approximately six hours, the Japanese fleet was in an area north of the Barren Islands on route to Shelikof Strait.

There is no other reported incident and that incident, may it please the Court, was not observed by officials of the State of Alaska.

So, we contend that the actions of Japan subsequent to the agreement clearly are acquiescence.

There is one other point I should like to make.

Justice Thurgood Marshall: Does this Japanese fishing fleet ever come in to Chesapeake Bay?

Mr. Charles K. Cranston: Mr. Justice, I --

Justice Thurgood Marshall: I draw that, I'm trying to interrupt but it's never been in this inlet.

Now, how do you draw to the fact that there hasn't been any suit in this letter?

It's so great if it's never been in there at all.

Mr. Charles K. Cranston: The fact, Mr. Justice is that the Japanese protested the application of the agreement to Cook Inlet and they expressed concern over that apparently and in face of their protest, they have abstained from fishing in Cook Inlet.

They, thus, felt that was of some significance but they have not followed up.

Justice Thurgood Marshall: They haven't stopped.

Mr. Charles K. Cranston: Yes, they have.

May it please the Court.

Justice Thurgood Marshall: They can't stop what they never started.

Mr. Charles K. Cranston: They felt apparently Mr. Justice that they had a right to do so or else they would not have protested.

They have advocated that right by discontinuing their protest.

That is -- that coupled with the absence of the fishing is the important fact demonstrating acquiescence.

Justice Harry A. Blackmun: Mr. Cranston, I want to be sure, has Alaska now abandoned its claim that sovereignty at one time was exercised by the Russians?

You no longer rely on this?

Mr. Charles K. Cranston: We feel Mr. Justice that that is not crucial to the disposition of this cause.

We do not admit nor do we feel the record does indicate that Russians at any time ever abandoned sovereignty to Cook Inlet.

However, since the assertions of jurisdiction by the United States and the state have been so longstanding since that time we feel that it has no bearing upon what this Court should decide with respect to this case.

Justice Harry A. Blackmun: Now on the Japanese situation, you're taking the position, I take it that the absence of Japanese shipping in Cook Inlet equates with a positive acquiescence in the claim of sovereignty.

Mr. Charles K. Cranston: That is our position, Your Honor.

We feel that it did equate with acquiescence.

Justice Harry A. Blackmun: Do you have any other instance of any other foreign nation's acquiescence?

Mr. Charles K. Cranston: Yes, we do, although I would be very glad to answer that question if I may.

We feel that the Gharrett-Scudder line is an indication of Canada's acquiescence in Cook Inlet and I will briefly state why the line was drafted upon Canada's recognition and this is important.

It recognized the regulations which had been drafted by the United States relative to fishing in Alaska.

This particular regulation defined the waters of Alaska as extending three miles, three miles which can only relate to territorial sea from lines extending from headland to headland across the entrances of bays.

This regulation adopted in 1957 was apparent to Canada since they asked for charts which delimited the line and Alaska described by the regulation which in fact defined waters of Alaska.

The charts were prepared and transmitted to Canada from the United States embassy in Ottawa in 1957 showing Cook Inlet to be within the line from which the three-mile limit was measured.

The testimony of William Terry indicated that as to Cook Inlet, the Japanese had no quarrel and there has never been an objection registered by Canada as to the placement of the Gharrett-Scudder line with respect to Cook Inlet.

There was some minor dispute as to something down in the Strait of Juan de Fuca and something in Southeastern Alaska but not as to Cook Inlet.

This, we consider to be acquiescence by Canada as to the assertion of sovereignty by the United States through a regulation defining the three-mile limit in Cook Inlet.

Justice Potter Stewart: But in fact is that Canadian fishermen, mullet fishermen have been in there since.

Mr. Charles K. Cranston: The record Mr. Justice and the finding of the Court is that this was done in 1957 subsequent to statehood.

There have been five vessels undetected in Cook Inlet with and --

Justice Potter Stewart: How does anybody know they were there?

Mr. Charles K. Cranston: That's correct, they --

Justice Potter Stewart: How do we know they were there, if they were undetected?

Mr. Charles K. Cranston: The records of the Pacific Halibut Commission when a vessel enters any waters under the jurisdiction of the halibut commission, it must file records with that commission as to where this fish and some of those records, exhibit 78 and 80 indicated --

Justice Potter Stewart: Show that they were in Cook Inlet.

Mr. Charles K. Cranston: Yes, but more important Mr. Justice is that some of the records also indicated fairly that the Canadian vessels were within the three-mile limit of Cook Inlet.

There is one which indicates it was within Chisik Island.

The record also indicates that as to Canadian halibut vessels, the policy of the United States Fish and Wildlife Service was to be lenient and the record also indicates that in the case of more serious fisheries where jurisdiction, where sovereignty is truly threatened.

Howard Balso indicated that in the case of a Canadian salmon vessel, enforcement action would probably have been taken.

Justice Potter Stewart: Back in his 1962 Japanese seizure incident, there seems to be some -- nobody seems to have known where the Otori Maru was seized.

Was that ever established, one of the vessels?

Mr. Charles K. Cranston: Mr. Justice, there were three vessels involved, the Banshu Maru and I believe two mother ships or two other sister ships.

The -- one of the ships was clearly within three miles.

One of the ships was clearly outside of three miles.

I believe the record is clear and there is no dispute that one of the ships seized was outside the three-mile limit at the time it was seized.

Governor Egan's testimony again is unrefuted on this point.

Chief Justice Warren E. Burger: Very well.

Thank you gentlemen.

Mr. Charles K. Cranston: Thank you, Your Honor.

Chief Justice Warren E. Burger: The case is submitted.