TEXAS v. LOUISIANA

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Argument of John L. Hill

Chief Justice Warren E. Burger: We will hear arguments first this morning, in number 36, under our original jurisdiction the State of Texas against the State of Louisiana.

Mr. John L. Hill: Mr. Chief Justice and may it please the court.

The major unresolved issue before us is which of two proposed lateral boundary lines should be adopted by the Court in its final decree.

That would in the Court?s judgment properly fix the gulfward extension of the lateral boundary, between the States of Louisiana, the States of Texas and the United States.

Now, during the trial before the master in New Orleans, which constitutes almost 1200 pages of testimony and large number of exhibits, there were many lateral lines that were in contention and that were proposed about parties.

But the only two lines that are still viable and in contention are the Texas so-called middle line or median line, which begins at the mouth of the River Sabine, the natural mouth of the River Sabine and extends gulfward three - leagues on a middle line or median line principle.

Which we believe to be the only correct and equitable line that will fairly divide the territorial sea between these two states which is all we seek to do, which is all we can seek to do here is just fairly divide this territory.

Unknown Speaker: Mr. Attorney General, before you get to that, as I understand there is no dispute of the area of the River now between 30 and 32.

Mr. John L. Hill: No neither.

Unknown Speaker: Latitude and you referred to 12 maps that had been agreed upon, and apparently are to be deposited with the land departments of each state. Do you expect us to incorporate those maps in our decree here?

Mr. John L. Hill: We do not speak of it as an agreement.

We speak of it as the ascertainment on the ground of the facts and legal principles that this Court has already enunciated in your first opinion.

Unknown Speaker: You expect us to incorporate --

Mr. John L. Hill: Yes we do, with the only controversy left down to the natural mouth of the river, involves --

Unknown Speaker: I know what the only controversy is.

Mr. John L. Hill: I am sorry.

Unknown Speaker: But how are we to incorporate them in the decree if they are not here?

Or are they here?

Mr. John L. Hill: Yes, they are in the exhibits if it pleases the Court.

Unknown Speaker: Are you going to submit incorporation language, or do we have to work it out ourselves?

Mr. John L. Hill: No Sir, we would be happy to do so.

We think that the proper decree, since the Court?s proper decree here should be that the lateral gulfward extension shall be a middle line or median line, extending from mouth of the gulf that would be sent back for that principle, and we have plotted at the coastline.

We think the proper coastline is the historic coastline as we say.

But I think the proper decree would be for us to do that, and at the same time you settle the middle pass issue for us.

Unknown Speaker: I know what the issues are, what I am concerned about is that two degree area up there, and I am trying to pin you down as to whether you have language that will --

Mr. John L. Hill: We do, Your Honor.

Unknown Speaker: Enable us to --

Mr. John L. Hill: We do.

We have co-ordinance, we have fixed position all through the geographic middle of the Sabine River.

We have worked very hard to do that, and we have produced a result that we believe comports with Justice Stewart?s opinion, Justice Whites? opinion, in the first ground of this case.

Unknown Speaker: This does not bring you down to the gulf does it not?

Mr. John L. Hill: No Sir, but we are alright in that we could?

Unknown Speaker: He has to cover -- (Inaudible)

Mr. John L. Hill: Clearly.

Unknown Speaker: Degree area and I just wanted to confirm?

Mr. John L. Hill: Yes Sir, well we certainly have the help in the record and I do not think that presents any difficulty at all.

We do, and I do not intend to dwell on the middle pass issue.

I think so clearly in favor of the master's recommendation that the middle pass be used as the Northern end of Sabine Lake that unless you have some questions about it, I do not intend to take any of my time with it.

Unknown Speaker: Attorney General, is there a counterpart of that map in our papers?

It looks different from this --

Mr. John L. Hill: Yes, it is different in this respect and I should like to explain it if I may?

Unknown Speaker: But may I ask, is there a counterpart of it here?

I cannot see --

Mr. John L. Hill: There is to this extent.

This is an exact reproduction?

Chief Justice Warren E. Burger: Mr. Attorney General.

Mr. John L. Hill: I am sorry.

Chief Justice Warren E. Burger: Would you draw your map closer so that you will not be out of range of the microphone?

Mr. John L. Hill: So the difference between what is before the court on the exhibit and what is in the Masters? exhibit here besides from the obvious enlargement, is the Louisiana Arc.

And the fact that the only two lines, we have put on this map are the lines still in contention.

You will notice on the master's exhibit, there are many other lines, and no use clogging this discussion with lines that everyone has abandoned.

The only reason for putting the Arc in your previous decrees, you have decreed that Louisiana is entitled to measure the breadth.

Unknown Speaker: (Inaudible) -- in our papers that I can look at rather than try to get from here and I cannot?

Mr. John L. Hill: If you could Justice Brennan, if you will refer to the masters exhibit but ignore all of the lines that are on it.

Except what is designated I believe line number one, the Texas median line, and the US line which is line number five.

It is otherwise the same with the exception of drawing the Louisiana Arc, and we did that solely to refresh the memory of the Court, a one unique feature of this controversy.

That is a previous decree of this Court have said that Louisiana may measure the breadth.

It is a very important point in this case, which was overlooked by the masters, consistently overlooked by the United States and Louisiana.

Your decree states that Louisiana may measure the breadth of the territorial sea from that Jetty, that decision has nothing to do with where the lateral boundary would be in their territorial sea or in our territorial sea.

But we want to put it in here so you can see that the Louisiana territorial sea is rather unusual and that it comes on an arc and then joins in there, three miles lines, which of course they are taking under the unconditional grant of the Submerged Land Act.

They are taking three miles which they try to take a historic three leagues.

It was rejected by this court, we tried to take historic three-league and it was affirmed by this Court.

So you have a state on the one hand with a three-league grant already established by this Court, and Louisiana on the other hand with a three mile grant, but allowing them to measure that three mile grant from the eastern edge of the Jetty, under the Geneva Convention, holding that that was a part of their coastline.

So that actually they a have a territorial sea on breadth, that is very unusual looking animal, as a result of those two cases.

So, that is what this map is for, I hope it will be useful as we go along in our discussion.

Unknown Speaker: I think one of the (Inaudible) argument that will pass that point, is there a map in the briefs or in the report that shows the upper end of the lake?

Mr. John L. Hill: Not in the briefs, if it please the Court, but there is an exhibit if you will go back to our --

Unknown Speaker: As far as the contention between You and Louisiana is where the line begins at the upper end of the lake, there is no map that --

Mr. John L. Hill: Not in the briefs, in only the exceptions to the masters report, Justice White.

But there is a map we have --

Unknown Speaker: What is the exhibit number, do you know?

Mr. John L. Hill: I believe that it is 5A.

I beg your pardon.

We did file a brief reply to the exception filed by the State of Louisiana, and Mr. York now showed me that on page four of that brief there is a description of the middle pass, the West pass and the East pass.

If I may refer you to that, it is a very short brief, it is showed on page four.

Unknown Speaker: --that is the only map there is?

Mr. John L. Hill: The only one in the briefs, may it please the Court.

Unknown Speaker: There is no masters map to this --

Mr. John L. Hill: Not attached to as an exhibit to his report.

There is in the record, yes --

Unknown Speaker: Instead of this one --

Mr. John L. Hill: Well, Justice Blackmun has a larger exhibit that he is referring to Justice Stewart.

Now, the only significant as long as we are on that point and the Court is not expressing an interest in it, a middle pass is clearly the proper pass, the mark geographic middle of the river at that point.

The only reason Louisiana ever contended that the West past should be used was because Louisiana owns some island, they claim to own some island, West for the middle pass.

The Court properly, master properly found that is totally immaterial to the question of where the geographic middle of the river is, whether there is some island west of it or east of it.

Unknown Speaker: (Inaudible) according to the contention the two States are not in contention to south of that,

Mr. John L. Hill: No Sir.

Unknown Speaker: Until you get to that though?

Mr. John L. Hill: That is correct.

And then the middle pass I think clearly is going to be statement of this Court.

So we come on down then to the major issue in dispute which gives us about 12,000 acres of offshore lands that are in dispute, and the area that the United States is affected by are here beyond the Louisiana Arc, some 7500 acres in the little triangle here, that is in dispute, that you can get down to what the lawsuit is about.

That is Texas's position, that Texas has had, a lateral boundary, a three marine league seaward in to the gulf and is now a contested area ever since the 1845-49 period.

I am sure the court knows why, and this title 's litigation we refer to the 1845-49 period is related to Texas.

I will pick that up in a little while there is a very good reason for it.

As most everyone is written on this subject, to read this that we would deed it, this little flavor from the United States Government, from the west bank to the middle of the river in 1848, had the same standing historically by the very terms of the Submerged Land Act as our original historic grants.

So when I speak of 1845-49 that is why I am using that term.

The United States and Stanley agrees with the position that I just stated.

They agree that Texas had a historic three league lateral boundary, and they conceived this in their briefs, they argue with the fact that it was not precisely delimited.

We will get to that in just a moment.

But the position of course, our basic position is based on a number of historic items and this has been so well documented in your previous cases that to get a little bit of posing on the court to go over all of it, I will try to hurriedly do so.

Of course, first the United States, a party to this litigation and the State of Texas, a party to this litigation, entered a stipulation that appears at 394 US 1 which was the third chapter of the second United States versus Louisiana Case.

And this is what it said.

The United States has accepted Texas three-league boundary opposite the western half of Sabine pass.

Not as a boundary as it existed when the State came into the Union in 1845, but as one approved by Congress before the passage of the Submerged Land Act, and as such equally entitled to recognition under section 2(b) of the Act.

The land identified in the stipulation as the land to be recognized as Texas historic offshore boundary includes the 1849 extension, but the United States reserves the effectives of that extension as against the claims for example, as might be asserted by Louisiana.

Alight, that reservation which carried out, Louisiana made a context of it, and that is what the original opinion in this case dealt with as to whether it was valid against Louisiana?s claim.

And this Court held that it was, that is already decreed law by this Court in the face of Louisiana?s contest, you rejected their claim of the west bank and judicially decreed Texas historic boundary to which the State of Texas and the United States had already agreed.

So Louisiana?s contest has been rejected, and the stipulation of United States is still binding on them.

Now that historic boundary of course is based on a lot of historic documents, again as so hurriedly because it is so much a part of the previous cases.

Our 1836 Texas Boundary Act was the fundamental historic document that from and after the passage of this Act, passed when we were an Independent Nation and a Republic, the civil and political jurisdiction of this republic (b) and is hereby declared to the extent of the following boundaries to with, beginning at the mouth of the Sabine River and running west along the Gulf of Mexico, three leagues from land to the mouth of the Rio Grande so forth.

When Congress annexed us as a State in 1845, this mind you was the territory that the Republic of Texas considered that it was properly included within its boundaries, and rightfully belonging to the Republic.

That beginning at the mouth of the River Sabine, three leagues gulfward to the mouth of the River the Rio Grande.

What did Congress say when they annexed us?

That Congress does consent that the territory properly included within and rightfully belonging to the Republic of Texas maybe erected into a new State.

It did say, subject to the adjustment by this Government of all questions of boundary that may arise with other Government, you will remember the history that the United States was concerned about where the western boundary of our State would be, where the boundary would be with Mexico, and they wanted to press every claim that Texas rightfully had against all contestants and participants, and that is why that language was used, there was never any contest over our eastern boundary.

Never, the only contest that is ever reasoned about is Louisiana's rejected claim that we did not own half of the Sabine River.

We came along to the treaty that we then entered into with Mexico following this series of events.

The language and the Treaty of Guadalupe Hidalgo said, the boundary line between the two Republic shall commence in the Gulf of Mexico, three leagues from land opposite the mouth of the Rio Grande and from that and so forth.

Three leagues river, there can be no question any longer about the fact that we had our historic boundary and there can be no question about the fact that that boundary included a lateral boundary, whether or not Congress said, when it said beginning at the middle of the River Sabine and to line three leagues, the mere fact that it did not stake it out by some call or some precise delimitation.

We believe that does not defeat the fact that Texas had and had to have a historic lateral boundary connecting that beginning point and that ending point at that time.

Unknown Speaker: The Treaty of Guadalupe Hidalgo was after Texas was annexed, wasn?t it?

Mr. John L. Hill: Yes.

And you do remember, of course, I did not read it, but did not think it is necessary when they moved our line over the United States and 1848 Congressional Act consenting to the extension of the line.

It also said one half of the Sabine River from its mouth.

Unknown Speaker: (Inaudible)

Mr. John L. Hill: Yes Sir.

Unknown Speaker: -- prior to 1948 when the boundary was on the west bank of the River, as to how you would get from shore to three leagues out, what angle would be appropriate?

Mr. John L. Hill: It is our position Your Honor?

Unknown Speaker: I am asking if the party is in agreement as to what the line would have been prior or 1848.

Mr. John L. Hill: I would say that there is no longer any dispute in this Case, it is the only proper way to construct a lateral boundary is by use of the so-called Median Principle.

Unknown Speaker: How would the Median Principle operate from the west bank of the River, that is what I was in fact not clear.

Mr. John L. Hill: The west bank of the River, that was still a contended far line, which it is not, you simply step out and adopt the same so-called Shalowitz (ph) Principle.

Really the way a median line is drawn as you go out to sea and you find a place that is close to where you are shooting far.

And you shoot to the nearest point on each shore that you are nearest to, and that is your beginning point.

And you step in on an arbitrary kind of ad hoc basis so that you keep that line all the way to its connecting point where every point on that line is no closer to one coast than it is to the other, and of course, the obvious reason is, what you are trying to do is equitably divide the seabed, and that is the only kind of line that does it.

Unknown Speaker: Let me put my question a little differently.

If the line, had it originated on the west bank of the river instead of in the middle of the river, would it have been parallel under that principle to a line which originated in the middle of the river?

Mr. John L. Hill: Yes, but that would not be very much different, say academically if that is what we are deciding about in this case, we would not have very much to talk about it.

Because the principle of the line would be the same.

It would just have a different connecting point that some maybe quarter of a mile to the west of it.

But you project the line exactly under the same principles, that we have spoken of as the middle line back at the time Texas was annexed.

I will get to that in a moment.

But the only concept of any of so-called middle line or median line is that what you are trying to do is to divide the path fairly, that is all it is about.

You trying to go haywire, you are trying to do equity to both sides.

No one denies that the Texas line shown on this map does that, no one.

The line is proper, it connects to our historic middle and it divides it in it an equitable way.

When you take the United States line which is now been joined in by Louisiana, you use the jetties which were not developed on median principle lines at all.

They have nothing to do with equity of dividing a seabed, they were built by the United States Core of Engineer for the purpose of the United States Government in navigation.

They do not even purport to follow a median line.

And when you move down and start at that position, you destroy the principles of median principle because you have such narrow baselines.

It is meaningless.

If you take two small baselines to construct a median principle out of that, you might as well just draw a straight line.

It is going to come out substantially the same.

So, unfairness is injected into this case by the use of man-made jetties constructed by the United States Corps of Engineers in 1880 when they were begun as to our historical boundary was already recognized, which did equity to everyone, and now we are put in the position that we are being said that we have given up part of our entitlement because in some way, we have acquiesced, we have acquiesced says the master, as his primary basis.

The State of Texas is acquiesced in giving up this valuable land that would be ours under that principle because we have acquiesced in moving our boundary line down the Jetty to the mouth.

How ridiculous can you get.

It is an aversive change, nothing which we participated.

It was begun in 1888, totally financed by the United States Government.

The only reason for building it was, that there were still building up at the mouth of the Sabine River and placing a bar by the navigation and it would get it out further into sea, the silt would not impair navigation.

They worked on it till 1936, what were we doing, acquiescing every several years, as they added a little but more on to it, it is ridiculous.

We have not consented the for changing of our boundary.

Unknown Speaker: Mr. Attorney General, on your theory had the river come in to the Gulf, directly due East, then the median line would also go directly due East?

Mr. John L. Hill: Not necessarily due east Justice Blackmun, because you do not measure a median line from the channel of the river and extend the channel of the river out.

You use the coastline or the baseline, the proper baseline.

Unknown Speaker: Suppose the two shoulders had been North and South of one another, at the point of the mouth of the river, is not my question then to a possibel answer.

Mr. John L. Hill: It would still go to the -- still in establishing the middle line as that river point, you would establish it not by reference to the channel or the fallback so-called of the river, you would establish the middle line by reference to the coastal, the coastline.

Unknown Speaker: It depends on how long your baseline is.

Mr. John L. Hill: Yes Sir.

Unknown Speaker: And if it tried to change, if you had a fairly long baseline it would not make much difference which way to -- what direction the river was running when it run into the?

Mr. John L. Hill: No Sir.

Particularly if the coastline was more or less regular and I do not think that anyone claims that Louisiana and Texas had a substantially irregular coastline, as coastlines go.

And what is happening here is after they cannot sustain the acquiescence and prescription because the evidence is weak, the law is weak, you do not take something away from someone on acquiescence on a small 25 year period which is all they are talking about on the basis that some shrimpers had given affidavit that they got arrested about for fishing license in a certain area.

That is just weak as water and it would not hold, and there is not enough evidence here, this Court has repeatedly said that if you are going to apply prescription and acquiescence which you do not even favor as a rule, you are slow to do it in a boundary involving water, much slower than in land.

And I just do not know of a case where you take this kind of evidence that has been presented here over that short period of time and ignore all of the other documentation and history and case law here and just overwrite it on some basis, that prescription we have agreed that the mouth of that river could be shifted down.

Now losing on that point, we get into a -- United States takes the position and the Master agreed that since Congress did not more accurately delimit our lateral boundary line back in those historic times.

That it must be discarded in favor of a modern line which we take into account these modern jetties.

Now, we have said out in our briefs, please remember that we have a pre-trial brief, a post-submission brief, as well as our brief in support of our exceptions.

All of which we would commend because we have shortened our brief down on our exceptions, and some of our evidence on this inchoate line principle are in the previous briefs.

Unknown Speaker: Where do you claim your baseline is?

Mr. John L. Hill: The historic coastline.

Unknown Speaker: Where is that?

Mr. John L. Hill: In this particular map it is right here.

It would actually favor Texas to use the present modern --

Unknown Speaker: Show me again where do you claim your historic baseline.

Mr. John L. Hill: Right here, Your Honor, where these lines are.

That is the historic coastline --

Unknown Speaker: Anything to the right of that is a man-made?

Mr. John L. Hill: Yes, these were results of evulsive changes that came about by building the jetties.

I wish we could use them, we would move our line eastward if we could but it is wrong, it is legally wrong to use it.

It is not equity to Louisiana, it is not haywire, it is the wrong principle.

The right principle is the historic shoreline because you have already decreed it for Texas, you have already told us that that was the baseline.

Unknown Speaker: Where is Louisiana?s, where is the Louisiana?s?

Mr. John L. Hill: Baseline?

Unknown Speaker: Coastline, baseline, which -- to apply the median principle?

Mr. John L. Hill: Right here, we took these lines from the decree that was already placed in the?

Unknown Speaker: Now where is Louisiana?s baseline, according to the master.

Mr. John L. Hill: At the Eastern, that the mouth or head are permanent of the eastern jetty.

Unknown Speaker: Where is that?

Mr. John L. Hill: Down here.

Unknown Speaker: So there is not much of a, so how long is the masters baseline?

Mr. John L. Hill: Well the master?s baseline is all about six miles, because the jetty comes out 3.1, into the water, from the natural mouth.

And the reason, the basic fallacy --

Unknown Speaker: In applying the equidistant principle out in the Gulf, where is he measuring from?

Just the two ends of the jetty?

Mr. John L. Hill: Exactly, he might as well have saved his time.

Unknown Speaker: Yes.

Mr. John L. Hill: I mean once he got us out to the end to the end of the jetties, where the jetties with which he had such great affection, there was no need.

I mean the median line principle went out the window.

So, it was simply because, the anomaly here is that you have given Louisiana the right to measure her territorial sea, the breadth of it from the east jetty.

But you have not given her, that has nothing to do with lateral boundaries, that just simply had to do with your interpretation of the Geneva Convention that since harbor work were part of a coastline for purposes of delimiting the sea --

Unknown Speaker: (Inaudible) When was the last addition to the jetties made?

Mr. John L. Hill: 1936, and we are supposed to somehow acquiest in these man-made evulsive jetties?

Unknown Speaker: How far apart are the jetties?

Mr. John L. Hill: Well, about half a mile.

Unknown Speaker: And that is the shipping channel issue?

Mr. John L. Hill: Am I wrong in there, I stand corrected, I do not know the answer.

I have seen them many times.

Unknown Speaker: (Inaudible)on your theory of -- what part of the eastern jetty be in Louisiana and part in Texas?

Mr. John L. Hill: No Sir.

You see it is a fallacy.

They talk in terms of the eastern jetty being owned some way by someone.

No one owns the eastern jetty, it is United States Government.

Louisiana speaks that they own this land, this seabed from the Texas median line to the jetty, not at all.

You have not decreed who owns that, you have simply decreed how to measure the territorial sea.

The only thing that can determine who owns it is for you to fix the lateral boundary, that is what is going to determine who owns it.

Unknown Speaker: Mr. Justice Blackmun, is it according to your view, jetties are all located within the boundaries of the State of Texas.

Mr. John L. Hill: No question about it, no question about it.

And they can alter our boundary, by that.County Unilateral Act that to which we have absolutely -- not only not acquiest in 1947, we established our own statutory lines by?

Unknown Speaker: The eastern jetty attached itself to what is conceded as Louisiana land at the mouth of the river?

I take it, it does not?

Mr. John L. Hill: I am sorry I am not catching your question?

Unknown Speaker: What is the land most end of the jetty.

To what does it attach, the eastern jetty?

Mr. John L. Hill: The eastern jetty attaches to the shoreline of Louisiana.

Unknown Speaker: Well then part of it is in Louisiana?

No?

Mr. John L. Hill: No.

The jetty belongs to the United States?

Unknown Speaker: I do not care whom it belongs, I want to know is it in Louisiana, any part of it?

Mr. John L. Hill: I do not think it is.

Unless you want to quibble about the?

Unknown Speaker: Even though it attaches to Louisiana?

Mr. John L. Hill: If you want to say that the attachment at the shoreline, that Louisiana owns that shoreline to where it attaches, yes.

But they do not own the jetties.

Unknown Speaker: Mr. Attorney General, let us forget about ownership.

At the point of attachment it is certainly is in Louisiana, is it not?

Mr. John L. Hill: Yes Sir it is.

Unknown Speaker: Then how far out is it in Louisiana?

Mr. John L. Hill: Not any at all.

Not any point from there is it in Louisiana, you have not decreed the jetty or any part of the jetty to be owned by any State, by either State, nor could you, it is owned by the Unites States Government, it paid for it and erected it.

The only significance you have ever attached to it is you gave the eastern?

Unknown Speaker: I am not interested in ownership, I am interested in location.

Mr. John L. Hill: It is not located then in Louisiana, it would be located in areas that are properly -- let us say that over which Texas will properly have jurisdiction when this case enters the proper decree.

When this Court entered the proper decree to say that this territory is within our proper territorial sea, then the jetty will be in an area over which we properly and legally held offshore jurisdiction.

There is something less than full ownership even in that area as was pointed out in the first United States versus California Case.

But even when US versus California was decided, you recognized that the States had some jurisdiction left, you recognized that jurisdiction was bounded by lateral boundary, you said so in the decree of US versus California and US versus Texas.

You can not wipe out what has already been done by the Court.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Attorney General.

Mr. Rupp.

Argument of John P. Rupp

Mr. John P. Rupp: Mr. Chief Justice, may it please the Court.

There is no longer any dispute between the parties here that the boundary between Texas and Louisiana and the Gulf.

It must be constructed by reference to the median line or equidistant principle contained in Article XII of Geneva Conventions.

That is that the boundary must be aligned that is at all points equidistant from the coastlines of the two States.

The dispute relates instead to the coastline for purposes of application of the median line principle.

Texas? basic position is that the relevant coastline is the coastline that existed in 1845 when it was admitted to the Union.

In support of that position, Texas has contended first that the Congressional Resolution annexing Texas, recognized that Texas had in the Gulf of Mexico both lateral and offshore boundaries, that had Congress undertaken to fix that boundary as of 1845, it would have used the equidistant or median line principle and it would have applied that principle to the 1845 coastline.

And finally that even though Congress did not fix the lateral boundary in 1845 or thereafter, the boundary nevertheless remanded inquit and neither post 1845 evulsive changes in the coastline, nor post 1845 changes in domestic and international law can operate to affect the position of a lateral boundary which has remained in some sense established since 1845.

We believe that the special master properly rejected Texas? positions and that all three of the contentions made by Texas in support of that position, are demonstrably unsupportable.

The operative language of Texas relies upon in support of its argument that it has had for the last 140 years, a lateral boundary in the Gulf of Mexico, appears at page 7 of our brief, and it was referred to by my brother a moment ago.

That language which is taken from the Texas Boundary Act reads as follows describing the seaward boundary of the State of Texas, beginning at the mouth of the Sabine River and running west along the Gulf of Mexico, three leagues from land to the mouth of the Rio Grande.

In United States versus Louisiana, decided by this Court in 1960, this Court held that the language to which I have just referred is sufficiently precise to sustain Texas? claim to an offshore grant under the Submerged Lands Act, extending into the Gulf of Mexico three leagues from land.

At the same time however the Court recognized in that case that at the time of Texas? annexation, Congress paid little attention to the location or existence of any offshore boundaries for the State of Texas.

As the Special Master noted, Congress paid no attention at all to the location of lateral boundaries.

The consuming interests at that time were instead the question of slavery, the debt that has been accrued by the Republic of Texas, and our deteriorating relations with Mexico.

Texas has pointed to nothing in the available legislative history that add to the language to which I have referred, and I think that the special master, we submit that the special master was correct in concluding that it is impossible on the basis of operative language upon which Texas relies to construct the lateral boundary.

As the special master noted, the problem is getting from the mouth of the Sabine to a point three leagues into the Gulf, and I am quoting,?no meridian is chosen, no angle of departure from the coast is referred to, nor is any point in the Gulf three leagues from land specified.?

Given a total lack of relevant language in the statute, there is no indication of how or where a lateral boundary was to be constructed.

What the special master was confronted with then, was a holding by this Court that Texas? offshore boundary, the breadth of Texas? grant under the Submerged Lands Act, extended three leagues in to the Gulf.

The instruments upon which it relied in arguing that it had an inquit lateral boundary, and that the responsibility of the special master was simply to divine that boundary, is that the language the relevant language provides no clue whatever to how that boundary was to be constructed.

Events occurring since 1845 also demonstrate the weakness of Texas? position.

I would like to refer the court if I may to a diagram that appears as an appendix to the special masters? report.

Although Texas contends that it has had for the last 140 years an inquit boundary in the Gulf of Mexico, you will note from the map that when Texas undertook to define that boundary by statue, it fixed a lateral boundary which bears no relation to the lateral boundary it says has existed for the last 140 years.

The median line that Texas from the 1845 shoreline that Texas now suggests ought to be regarded to this Court, or adopted by this Court as its lateral boundary is marked as green line number one, on the special masters map.

The Texas statutory line is green line number three.

The principles used to construct line number three and the principles that Texas now relies upon in constructing line number one are not the same and not surprisingly then the lines bear little relation to one another.

The second link in Texas? argument in support of its proposed boundary line we believe is no stronger than the first, and that is even if lateral boundaries were not defined at the time of Texas? annexation or subsequently, had the United States? Congress undertaken to define the lateral boundary as of 1845, it would have used the median line or the equal distant principle and it would have applied that principle to the 1845 coastline.

We dealt with this contention at some length in pages 14 through 18 of our brief.

Let me only say here that although the median line or equidistant distant principle is today recognized as the governing principle and the fixing of lateral boundaries between adjacent states that was not true in the 1800s.

The instances referred to by Texas at Pages 25 through 28 of its brief are not instances in which the median distant principle was used to delimit areas in the marginal sea, with one exception and that is the (Inaudible) Case.

But that Case did not apply the median line or equal distant principle for which Texas contends here and which beyond the State of Louisiana agrees the proper principle.

The Court in that Case used the right angle principle --

Unknown Speaker: Does the median line principle, equidistant median line principle apply only when there is not only a dispute between two States or Countries but only when the line, you can not say the line is ever been definitely established before?

Mr. John P. Rupp: There are two ways under the Geneva Convention?s to delimit?

Unknown Speaker: Let us assume, just to get my question straight.

Let us assume that when Texas came in to the Union, there was a language used or at least there would be no question whatsoever what the boundary line was.

From what point you would measure and what angle you went out into the Gulf on, let us assume that it was absolutely clear at that time.

Mr. John P. Rupp: Yes.

Unknown Speaker: Now would building the jetties then change that boundary?

Mr. John P. Rupp: I wish I could answer that question yes or no?

Unknown Speaker: You must answer it no, I suppose?

Mr. John P. Rupp: Well I think the answer is no and the reason that it is no is that this Court has held?

Unknown Speaker: Because if you would have answered it yes, that Texas? argument about what its historic boundary was irrelevant?

Mr. John P. Rupp: I do not think that follows.

Let me backup for one moment, this Court held in United States versus Texas, that Texas did not have a recognizable claim to lands offshore.

Recognized however in United States versus California, that Texas and other Gulf States might nonetheless, and California, might nonetheless exercise some police powers in those areas.

Now, the historic element of this case comes into the picture only because in the Submerged Lands Act, Congress permitted States to exercise one or two options.

Either the three league option if based upon historic events, or an unconditional three geographic mile grant.

Unknown Speaker: I will put it again.

The master establishes what the line is now, now suppose the jetties are extended next year on a different angle --

Mr. John P. Rupp: Yes.

Unknown Speaker: Does the boundary change or not?

Mr. John P. Rupp: Our position is that it would not, once it is fixed in the decree of this Court it would not.

I should add however, that the parties have?

Unknown Speaker: I take it you agree, if there had been a judicial finding of what the boundary was or where it started in 1900 it would not have been changed by the building of the jetties?

Mr. John P. Rupp: The problem is, I cannot answer yes or no?

Unknown Speaker: Alright.

Mr. John P. Rupp: The problem is that we are talking about a controversy which has relevance only under the Submerged Lands Act.

Now, it is the United States? position that a decree in this Court now establishing lateral boundaries between Texas and Louisiana and lands retained by the United States under the Submerged Lands Act will finally fix the boundaries.

We believe further however that the coordinates of a line ought to be incorporated in an agreement between the parties and presented to the Congress so that any potential ambiguity is removed.

This is the first case that presents to this Court under the Submerged Lands Act the question of lateral boundaries.

Those boundaries normally under international law will continue to fluctuate until fixed by agreement and possibly by judicial decree, although that has not been settled yet.

Unknown Speaker: Fluctuate depending upon what?

Mr. John P. Rupp: It depends upon both natural changes in the coastline as well as evulsive changes.

Now the change?

Unknown Speaker: How about man-made changes?

How about changes in those locations?

Mr. John P. Rupp: Yes, I included man-made changes.

Unknown Speaker: As evulsive?

Mr. John P. Rupp: Yes, man-made changes and normally evulsive and the Geneva Conventions specifically include harbor works that form an integrated part of the harbor network as part of the coastline.

And this Court has held that the jetty on the east forms part of Louisiana?s coastline.

Unknown Speaker: Yes.

Mr. John P. Rupp: For you to hold now for purposes of the lateral boundary dispute with which we are now presented that Texas? jurisdiction cuts the eastern jetty and extends eastward into the Gulf of Mexico from the natural mouth of the Sabine, we regard as wholly inconsistent without prior holding.

It is clearly inconsistent with the governing legal principles under the Geneva Convention which this Court has applied to cases such as this arising under the Submerged Lands Act.

In United States versus California when this Court was presented with the duty of determining the meaning of the phrase inland waters, this Court referred to the Geneva Conventions.

This Court incorporated evulsive man-made changes in determining the location extent of California?s inland waters.

In United States versus Louisiana, the last case involving these two states in this Court, again the Court held that man-made changes, harbor works, affected the location of the boundary.

Unknown Speaker: All these two States, it simply involves the Louisiana coastline?

Mr. John P. Rupp: Yes, that is right I am sorry.

It did not?

Unknown Speaker: It has nothing to do with the boarder between this two States as such, did it?

Mr. John P. Rupp: No that is not, that is right, it did not.

What the Court held in that case of course was that for purposes of measuring the three mile limit under the Submerged Lands Act, the eastern jetty was part of Louisiana?s coastline and that Louisiana could use an arc extending three miles from the eastern jetty.

Unknown Speaker: That is not really relevant to the dispute here or the issue here is it?

Mr. John P. Rupp: It is relevant?

Unknown Speaker: Or not relevant but certainly it is not?

Mr. John P. Rupp: It is not conclusive, no, no, it is not conclusive.

This Court has not held, as I just indicated, has not confronted a case involving an issue of the location of a lateral boundary between two States offshore.

We believe that that logic of the prior opinions leads to the result that was reached here, recommended here by the special master.

Unknown Speaker: (Inaudible) the baseline that you lay out in the coast, to start with do you think it has to be the same coastline that was recognized as part of Louisiana?s coastline in the past cases?

Mr. John P. Rupp: Exactly, that is correct, that the breadth of the territorial seas and the coastline to be used for the present purposes should be the same.

Argument of Oliver P. Stockwell

Mr. Oliver P. Stockwell: Mr. Chief Justice, may it please the Court.

I would not try to duplicate the argument that has just been made.

There is one thing though that I want to clear up.

I think it was Mr. Justice White, when we argued the last Texas boundary case asked Mr. McDaniel?s about the effect of that judgment on the offshore boundary.

And Mr. McDaniel?s said, this is on page 34 of our brief, that is correct, it does not affect United States.

I do not think because as to United States, the three-league limit only comes as far as our historic boundary, and Congress has not consented for us to extend it here anymore than they have consented for us to extend it up here north of the 32nd degree of latitude.

So we have no contrary, so Mr. McDaniel was saying that in the extension of 1848 it really did not affect the offshore boundary.

I think in this case, one of the salient facts that as I see is the fact that the jetty starts on the coast of Louisiana and it extends out in the Gulf, so it is an extension of the coastline of Louisiana.

And the master actually determined that the jetties were part of the river to some extent, because he said that in the expert testimony was put in justified the fact that you could say that was an extension of the river mouth.

But he said he did not have to hold it on that basis because on Geneva Convention, it would be the coast of Louisiana to the end of the jetties.

And they have the low water mark at the end of the jetties which about 1800 feet approximately what Mr. Hill said, and that was a baseline, which is a baseline for measuring the territorial sea of the United States.

And in under Article XII of the Convention, it is measured from that baseline, so I think that the master was absolutely correct in taking the modern coastline since you had never had a boundary established, it was maybe incorrect boundary, but the Texas never had recognized any boundary.

As a matter of fact I think the record would demonstrate that all of these parties have treated, more or less down the center of the jetties as being the boundary between Texas and Louisiana.

Now, of course, we disagree about the fact that their median line is correct, because the special master in his report said that there was not enough of the Louisiana coastline of 1845 to justify the median line that Texas was suggesting.

So we take issue on that.

I think one of the things that I would like to cover before I get into that is this north, as it comes into the Sabine River.

The Sabine River comes in the Sabine Lake, there is no dispute over the fact that that is three hours, Texas in their brief admit that when they were admitted in the Union 1845 that their boundary was on the western most branch of the Sabine.

So at that time there is no question about where their boundary was, there is no question about the channel that was used.

Now in 1838, which was before Texas was admitted, the United States surveyed this land for the purposes of issuing patents and made townships out of it.

And they surveyed it to the west branch of the Sabine River, and they let Louisiana select that land under the Swap Lands Act.

Now the only reason Louisiana could select it was that United States treated that as being in Louisiana, and then Louisiana patent that land out to individuals who owned it today and pay taxes in (Inaudible).

Now one of the important things as far as Louisiana is concerned is that the same surveyor held all of these channels were navigable, so that meant that Louisiana owned the beds of those navigable streams.

Now what the master has done, he admits that these islands were patented to Louisiana and patented out by Louisiana, but yet he says that they are now going to be in Texas, so that means that Louisiana has given up these navigable waters and also they have given up this taxes on this private properties.

Unknown Speaker: (Inaudible)

Mr. Oliver P. Stockwell: Over three miles, about three and a half miles I think.

Unknown Speaker: And Louisiana?s position was that you then go see what three miles from?

Mr. Oliver P. Stockwell: Yes Sir.

Our position was we had a statute too, that defines our boundary, and it commenced at the head of the jetties and took a line across the jetties and went due south.

And the United States line, this was median line based on the line across the jetties and after the master decided that was a proper line we have accepted it, so we do not allege the line, and we were alleging to the time.

So the Master in making this determination about these operands about the right channel, said something about the amount of water that came through.

But it is difficult for us to see, how the master could put the land that was already determined to be in Louisiana over to into Texas.

And that is going to be the effect of this decree.

It is going to affect title to a lot of property, since it came through the swamp land grants to Louisiana and was patented out by Louisiana, I am talking about over a hundred years ago.

So, I do not think there is anything to?

Unknown Speaker: It would not affect the title, would it?

Mr. Oliver P. Stockwell: Well, I think the only reason that Louisiana could get the swamp lands was it had to be in Louisiana.

In other words they were entitled as you know to select overflow lands in that porters, and they did that they made these selections and then they issued patents to individuals.

Unknown Speaker: But you can not go back and invalidate those patents?

Mr. Oliver P. Stockwell: Well, I think that might be a legal question.

I mean, I do not know, maybe some prescriptive period.

But anyway the Master admits this was all patented to Louisiana, and there is no question of acquiescence on the part of Louisiana, because right now, they would be in Texas and Louisiana.

As a matter of fact this same issue arose right north of that Orange Texas, what they call it aniurous, and they had two channels.

And the Department of Interior determined that the western-most channel was the channel to be used because that was the channel on the west bank at which the Texas boundary was.

Now that is the whole position we take is that the channel on which the west bank of Texas boundary was, West bank of Texas boundary is the channel to be used and the line was only moved to the middle of that channel.

Thank you.

Justice Harry A. Blackmun: The Missouri River is full of instances where property on the other side belongs to the state on the other side of the river.

So that the fact that the island might be Louisiana territory, but yet beyond the west side of the line is not conclusive I suppose.

Mr. Oliver P. Stockwell: Yes Mr. Blackmun, of course what we are saying is that the Louisiana had title to these beds or these streams by virtue of the fact that the United States recognized that the boundary is extended to this west part.

Now the United States could not take that away and give it to Texas and as 1848 Act, that same issue came up in Mississippi versus Louisiana.

And the Court held that once the State had territory, the Congress could not take it and give it to another State.

Unknown Speaker: (Inaudible) prior case in this Court that Louisiana?s boundaries went three miles out from the jetty?

Mr. Oliver P. Stockwell: Yes, that is right.

Justice Harry A. Blackmun: And you went three miles seaward from the end of that jetty, or from the middle, from the line between two jetties or from the end of the jetty?

Mr. Oliver P. Stockwell: From the end of the jetty, because that determines?

Justice Harry A. Blackmun: Then you started on the north?

Mr. Oliver P. Stockwell: That is correct Sir.

Justice Harry A. Blackmun: And as between the United States and Louisiana, that arc divided the rights to the seabed.

Mr. Oliver P. Stockwell: That is correct, under Submerged Lands Act.

Justice Harry A. Blackmun: Yes, under Submerged Lands Act.

Now Texas? position in this case would mean that part of that property was in that arc would belong to the State of Texas?

Mr. Oliver P. Stockwell: That is correct Sir.

In other words they say that -- in other word if you adopt that theory they get the whole, they get both of the jetties.

Therefore we would not be able to use the jetties to determine our territory --

Justice Harry A. Blackmun: So that if there is oil development, if they were drilling on the seabed within the arc that the United States though belonged to Louisiana under a prior case, it might now be determined it belonged to Texas?

Mr. Oliver P. Stockwell: Well it might be, yes.

I mean if the Court would hold that the Texas boundary extends to where they say it is, it would put part of what Louisiana has already been awarded into Texas.

And of course one of the things Justice is, that the fact that I think the Court started out to have some uniformity to the coastline and through these various issue like based under the Convention.

And what they will do here if this was not followed would be creating a real anomaly as far as this area around these jetties is concerned.

Thank you Sir.