UNITED STATES v. FLORIDA

Print this transcript Transcript: 

Argument of Lee C. Clyburn

Chief Justice Warren E. Burger: We will hear argument next in 54 Original, the United States against Florida and Texas.

Mr. Clyburn, you may proceed whenever you are ready.

Mr. Lee C. Clyburn: Mr. Chief Justice and may it please the Court.

My name is Lee Clyburn and I am an Assistant Attorney General of the State of Texas.

However, for purposes of the argument today, I will be representing the views of both the States of Texas and Florida since there are no divergence or independent issues as to those two defendant States.

The issue before the Court today is whether the defendants in this original proceeding will be allowed to file a counterclaim normally against the United States of America.

The Special Master has filed a report recommending that the counterclaim not be filed because of the United States Sovereign Immunity.

The defendant States urged this Court to refuse to apply the Doctrine of Sovereign Immunity in the mechanical, uncritical manner advocated by the United States and to grant leave to file this counterclaim so that full justice maybe done herein.

This is strictly a lawsuit for declaratory relief.

It was originally filed by the United States against the States of Florida and Texas, seeking a declaration that neither defendant had any right to control fishing by foreign vessels or their crews in the seas more than three miles off their shores.

The States answered and opposed the United States’ request for declaratory relief.

The States each assert that they do possess the right to enforce their laws at all points within their boundaries, which boundaries in the case of each of these two States extend three leagues or non-geographical miles into the Gulf of Mexico.

It became clear as discovery progressed in this lawsuit that the United States’ true position was that the defendant States not only did not have any rights to enforce their laws outside of three miles, but indeed that the defendant States of Florida and Texas had no rights to enforce their fisheries laws as against foreign nationals even in the three mile zone between the shore and three miles out for the traditional territorial sea of the United States have been locating.

And are to clear out the whole question of the respective rights of the parties with regards to this important issue of offshore law enforcement rights.

The defendants have filed their joint motion for leave to file a counterclaim.

By that counterclaim, the States seek only a declaration by this Court that they each do have the authority to enforce their fisheries laws as against foreign vessels and their crews within three miles from their shores.

United States opposes the filing of the counterclaim relying primarily upon the Doctrine of the United States Sovereign Immunity from sue.

The Special Master in his report filed with this Court finds that the expeditious and orderly procedures in this lawsuit would dictate the allowance of the filing of the counterclaim, but the Special Master felt that the decisions of this Court required him to recommend that the counterclaim not be allowed to even be filed because of the Doctrine of Sovereign Immunity.

The defendant States fully concur with the Special Master’s findings that absent the issue of Sovereign Immunity, the counterclaim should be allowed.

We strongly accept, however, to the recommendation of the Special Master that the counterclaim should be barred by operation of the Doctrine of Sovereign Immunity.

No case known to the defendants requires acceptance of the United States’ position on this matter.

Unknown Speaker: Was there anything in that legislation passed last October that has anything to do with the Doctrine of Sovereign Immunity that you know that Congress passed?

Mr. Lee C. Clyburn: Your Honor, we feel not.

It is my understanding that the Solicitor General is going to explicitly bring that tort decision to the Court's -- that statute to the Court’s attention for whatever bearing it might have.

I, myself, do not feel that it has bearing on the issue today or further the counterclaim should be allowed.

We feel that only an absolutely uncritical adherence to the most technical view of the position of the Doctrine of Sovereign Immunity in our country would require or even allow the result urged by the United States.

On the other hand, the filing and adjudication of the counterclaim would allow the entire disagreement between the parties to be dealt with in this lawsuit and that full justice could be done herein to all parties to this lawsuit and not just to the United States.

Justice Harry A. Blackmun: Is there anything to the suggestion that if your counterclaim is allowed, other states will be implicated also?

Mr. Lee C. Clyburn: Mr. Justice Blackmun, it is true that the issue that we raise in our counterclaim would probably be of interest to the other coastal states as well as merely to our two States or defendants in this lawsuit.

It is, however, our position that they should certainly not stand in the way of the filing for it.

The issue, is of very great importance to these states in this lawsuit, and it seems to us almost incredible that United States would say that it should not, that the counterclaim should not be filed merely because other States’ legitimate interest would be called into question by the counterclaim.

They have called into question and now they refuse to allow the issue to be adjudicated.

Unknown Speaker: Well then, you are not relying just on your status as a counter claimant.

You are saying that the other states who might be implicated along the lines of Mr. Justice Blackmun’s question should also be allowed to intervene in the proceedings.

Mr. Lee C. Clyburn: I really do not know what our position would be if other states sought to intervene, Your Honor.

I do not, what I am saying that it is of interest to us, it is legitimately raised in this lawsuit and we should be able to adjudicate it by counterclaim.

If other states sought to intervene, the Court would have to deal with that question; United States would have to respond to that at that time.

The United States in its brief to this Court makes the following statement that clearly demonstrates what we feel is the arrogance and unyielding nature of its position, and I quote from Page 7 of their Brief.

“In sum, defendants’ arguments that adjudication of their counterclaim is imperative less justice be denied, misses the point.”

Now, I point out to the Court that for reasons best known to the government they fit for the word “Justice” in that page from their brief.

Be that as it may, it seems to defendants that in this Court inquiries and to the justice and fairness of a given result never miss the point.

To the contrary, that inquiry, that inquiry as to what is fair and what is just, should always be exactly the point and it is on that point that United States’ position completely fails.

Unknown Speaker: Isn’t that quote from the Government’s Brief largely based on our opinion last year on the Testan case, where we pretty much took the same position that there maybe a more enlightened view that Sovereign Immunity be abrogated but it is not up to this Court to do it.

Mr. Lee C. Clyburn: Your Honor, they do cite the Court’s opinion immediately after the quote that I read.

It is the States’ position, however, that the case is cited and all of the cases indeed reported and relied upon for the application of the Doctrine of Sovereign Immunity where cases are distinguishable from this one in the effect, the possible effect that the filing of either the suit or counterclaim might have on the United States.

In this lawsuit our position that the counterclaim would have no adverse effect or embarrassment to the United States whatsoever.

Justice John Paul Stevens: General Clyburn, may I ask you a question on the nature of the conflict between the United States and the two defendants within the three-mile limit?

Paragraph 2 of the motion for leave to file a counterclaim contains the allegation that the United States, through discovery, has denied the States’ authority to control fishing by foreign vessels and their crews in the area within three-mile sea 9.10 their coastline.

Mr. Lee C. Clyburn: Yes Sir.

Justice John Paul Stevens: Two questions, is there anything else in the record shedding any light on the nature of the conflict between the States and the Government within the three-mile limit.

Mr. Lee C. Clyburn: Yes, Your Honor.

In our motion for leave to file a counterclaim, we set out and we quote from answers to interrogatories and from deposition testimony for in the United states does deny that right, it is their response...

Justice John Paul Stevens: Yeah, I was wondering how -- it is in response to interrogatories in the like that they say that there has been no conflict in this -- or is there is anything the record indicate there is any conflict in the sense that the drill vessels are arguing with one another about who can make arrests or is there any actual physical conflict of any kind?

Mr. Lee C. Clyburn: Mr. Justice Stevens, the answer to your question is no, and the answer to your question is no both as to the belt within three miles and as to the area outside of three miles, at least, as far as the State of Texas is concerned.

I would point out that the State of Texas, has filed in its answer an allegation that no justiceable case or controversy as to it exist and it is for precisely the reason that there has not been any clashes between the 10.18 boats of the lights, between the State of Texas and the United States that we raise that point in defense to this lawsuit.

So, the States’ position, in a nutshell, is that there is no justiceable case or controversy as to Texas with regards to the United States’ original request for the declaratory relief.

Justice John Paul Stevens: If you are right about that, there will never be need for the counterclaim, will there?

Mr. Lee C. Clyburn: Absolutely, Your Honor.

If the United States’ case is dismissed, we will not be in the position or care to pursue our counterclaim.

Unknown Speaker: Could you, perhaps 10.51 you would ask the other side, but what do you understand to be the United States’ theory with respect to the area outside the three–mile zone.

Mr. Lee C. Clyburn: Well, Your Honor, it is not clear in my mind, to be honest with the Court, but it is my understanding there has to...

Unknown Speaker: You are claiming the right after the three marine leagues?

Mr. Lee C. Clyburn: Yes Sir.

Unknown Speaker: What do you think their position is?

Mr. Lee C. Clyburn: As I can understand their position is linked to the notion that the territory of sea of United States has traditionally been three miles and that action beyond that could have implications that they say would have more effect on them than our actions within three miles.

Unknown Speaker: So, it is a different -- if they deny your right within three miles, it is for a different reason than outside.

Mr. Lee C. Clyburn: Excuse me, Your Honor, I think I might have not been plain in my answer.

I think their distinction is to why they should…

Unknown Speaker: I am wondering if the grounds urged are different.

Mr. Lee C. Clyburn: Not really, Your Honor.

I was confused in my earlier response.

Apparently, they do not think there is any difference in our rights within three miles and outside.

At least, that is what they said repeatedly in the discovery that I have alleged that I pointed out in my brief.

Unknown Speaker: But do you think both within and without three miles their idea is that this has foreign relations implication?

Mr. Lee C. Clyburn: Yes sir, that is correct.

That is what I understand and what they are saying to us is that although we feel you do not have it anywhere just for reasons best known to us, we only won't let you litigate with this right now in the area outside of three, between three and nine, and that is what we do not think is fair.

An examination of the affects of the filing of our counterclaim...

Unknown Speaker: Well, do they draw a difference between navigation and fishing?

Mr. Lee C. Clyburn: Fishing is the only issue that they raised in their lawsuit or that we mentioned in our counterclaim.

I think that the traditional law of the sea makes distinctions between the rights of fishing and the rights of navigation.

Unknown Speaker: Do you as in terms of what your rights are?

Mr. Lee C. Clyburn: Yes, yes Your Honor.

For example, we would never seek to prevent innocent passage.

Unknown Speaker: To exclude a foreign ship.

Mr. Lee C. Clyburn: Absolutely not.

If they were engaged in innocent passage and no one is ever alleged, we have 13.04.

Justice John Paul Stevens: General Clyburn, let me just ask you again, I am little puzzled about the prejudice to the State of Texas.

If you win, you won’t be hurt by not being able to file a counterclaim.

Mr. Lee C. Clyburn: If we prevail on the merits of the lawsuit?

Justice John Paul Stevens: Yes.

Mr. Lee C. Clyburn: Probably not, probably not Mr. Justice Stevens.

Justice John Paul Stevens: Then it is up to the Government, and if you lose, don’t you have two bites of the apple in effect with regard to the area within three miles.

You have only lost in the area of 3-9 you still have all your arguments for within the three-mile belt.

I have a little difficulty seeing the prejudice.

Mr. Lee C. Clyburn: The prejudice Your Honor, it would come in and we feel in various ways; first and not of ultimate importance in this Court but a very rare one to the States would be that it would subject us to the very real possibility of repeat litigation a few years now when they decide to sue us only in a belt.

That would be unfair.

But more fundamentally, more fundamentally, were we to lose on the merits of their original complaint and be denied our right to file and litigate our counterclaim, we would be in the position of not knowing of whether we could legitimately enforce our rights within three miles and we would be in the position of doing so or 14.14 that very least having a lawsuit filed against by the United States when they chose to do so.

Unknown Speaker: And that would be the position of every single other coastal state.

Mr. Lee C. Clyburn: It would seem so and our rights...

Unknown Speaker: That is right, that 14.23 along with every other coastal state except for Texas and Florida or in the Gulf.

Justice John Paul Stevens: Isn’t that the same parole 14.29 that is existed for the last 100 years...

Unknown Speaker: ...for every coastal state?

Mr. Lee C. Clyburn: We do not think so Your Honor because to my knowledge the recent developments in this lawsuit when the first time the United States just come right out and told us we do not think you have any rights at all to enforce your laws against foreign nationals anywhere offshore.

That’s 14.48 me and I thank you 14.50 to everyone who learned of that.

I think in that regard it would be a different situation.

The filing of the other counterclaim do not possibly have any adverse effect upon the United States.

Now, one penny of monetary judgment is sought against 15.09 of the counterclaim.

We do not seek to force them to deal in any particular way with any federal property to deed it to us or to deed it to anybody else or to refrain from doing anything they want to with any other property.

Very significantly, we do not seek to have them ousted from jurisdiction to enforce fisheries regulations at any point, anywhere on the face of the earth.

It is a position of the states and always has been.

The states and the Federal Government possess concurrent jurisdiction within the entire belt to enforce their laws against any violators.

We are not seeking to hurt the United States.

I have already told you.

Our view of the harm and prejudice would come to us and the basic unfairness of when the United States waive the banner of Sovereign Immunity without even attempting to give us or this Court or anyone, any logical reason as opposed to a dogmatic assertion of it as means of avoiding litigation of the full subject matter that they have brought into issue by filing this lawsuit.

Justice John Paul Stevens: Is it possible to infer that you may have raised the issue by asking certain questions in written interrogatories and all?

Mr. Lee C. Clyburn: Well, Your Honor, we -- 16.26 interrogators 16.27 to get at the distinction they had raised in their lawsuit by suing us only outside of three or asked them to try to file the logical basis for their choice of suing us only outside of three rather than all the way into the shore and it is in response that they said you do not have any rights.

For the reasons that we have outlined we urge the Court not accept the United States’ dogmatic view of Sovereign Immunity and to allow the filing of this counterclaim so that the full issues can be litigated in this lawsuit.

Chief Justice Warren E. Burger: Very well.

Mr. Sheehan.

Argument of William F. Sheehan

Mr. William F. Sheehan: Mr. Chief Justice and may it please the Court.

I do have in mind discussing the recent legislation that my opponent referred to, with the Court’s permission, I will postpone that discussion until a more appropriate part of my argument.

The issue that is now before the Court is quite a narrow one.

The issue is simply should the Court grant the motion of the defendant States for leave to file their purposed counterclaim?

Unknown Speaker: Mr. Sheehan, I wonder if you could lift that microphone up a little bit.

Mr. William F. Sheehan: The States have taken the position that they do have those rights.

They assert that their authority in this connection to either at least in part from the 1953 Submerged Lands Act.

That Act, of course, granted to the States' rights on the natural resources within the territorial sea, granted to all of the coastal states those rights in the territorial sea and as to the States of Texas and Florida, it granted those rights out to a distance of nine miles in the Gulf of Mexico.

The defendant states are, therefore, the only states that can assert a claim of jurisdiction over foreign vessels beyond the territorial sea on the basis of proprietary interests granted by the Submerged Lands Act.

They are indeed the only states that have asserted in this fashion such a claim and they are accordingly the only states named by the United States as the defendants in this suit.

Counterclaim that the States could bring, involves rights in the three-mile territorial sea.

Those rights affect the concern of every coastal state.

We have objected to that counterclaim on grounds of immunity.

Our argument proceeds in four steps: First, that the United States may not be sued without its consent; second, that the rule applied with equal force when the plaintiff is a state; third, that the United States has not consented to this lawsuit by statute; and fourth, that it has not consented to this lawsuit by virtue of having initiated a complaint.

The first proposition needs, we think, very little elaboration as the Court stated last term in Testan and it has long been established of course that the United States as a sovereign is immune from suit, save, if it consents to be sued.

Likewise, the second proposition is established beyond doubting our view, the exemption of the United States from being sued without its consent extends to a suit by a state.

I think the last time this Court had occasion to state that rule squarely was in Hawaii against Gordon in 373 United States reports.

Our third proposition is that the United States by statute has not consented to this suit and indeed the states have never claimed otherwise.

In this connection, I will raise the legislation enacted last October by Congress and I am referring to the waiver of immunity that Congress worked as an amendment to the Administrative Procedure Act.

We have included a copy of the Amended Administrative Procedure Act as an appendix in our Reply Brief in Matthews against Mr. Sanders.

That waiver of immunity has no affect in this case, which is not a suit to review agency action brought under the Administrative Procedure Act.

Another piece of legislation that is not referred to in the brief is the act last year by Congress, the Fishery Conservation and Management Act of 1976.

By that Act, Congress extended its exclusive fisheries jurisdiction to a limit of 200 miles from the coastline.

That Act leaves this lawsuit where it finds it in Section 306 of the Act, it says explicitly that nothing contained in the Act shall have any impact either to enlarge or to diminish the jurisdiction of the states within their boundaries.

That, of course, is the issue posed by the United States complaint, what is the jurisdiction of the state within their boundaries in the three to nine mile area.

There is a provision for suit in the Act extending the exclusive fisheries jurisdiction of the United States after 200 miles.

That provision for suit does not contemplate suits by states in as much as it provides for exclusive jurisdiction of cases or controversies arising under the Act in the District Court.

Congress could not have contemplated that that states would sue under that provision and as much as the constitution gives this Court original, although not exclusive, jurisdiction over actions in which state maybe a party.

That provision for suit also is of no aid to the states from this case because it provides only for suits in the District Court not in the Supreme Court, and finally it is of no aid to the states because it does not take effect until March 1, 1977.

Thus, the United States has not, by any statute, consented to be sued in the matter that the states seek to do and so the issue becomes whether the United States by initiating a lawsuit consents to be sued.

It clearly has not.

Unknown Speaker: Do you have a case involving a counterclaim against the Federal Government.

Mr. William F. Sheehan: I am sorry Mr. Justice.

Unknown Speaker: Do you have a case involving a counterclaim against the Federal Government and Sovereign Immunity.

Mr. William F. Sheehan: Yes, indeed I have two: One is United States against Shaw 309 United States reports; and another is United States against United States Fidelity.

Unknown Speaker: 309 and what?

Mr. William F. Sheehan: 309 U.S. Reports, Page 495, and the second is United States against United States Fidelity Company, 309 United States Reports, 506.

There is indeed a third case, Nassau Smelting Works against United States, 266 United States Reports, Page 101.

I will read from that, I will read two sentences from that case.

“The objection to a suit against the United States is fundamental whether it would be in the form of an original action or a setoff or a counterclaim.

Jurisdiction in either case does not exist unless there is specific congressional authority for it.”

That is at Page 6 of the Government’s response to the defendants exception to the report of the Special Master, and the other two decisions that I just cited Mr. Justice, the Shaw case and the Fidelity Corporation case are also mentioned in our brief.

Unknown Speaker: So, you do not think 23.29?

Mr. William F. Sheehan: Well, I do think the 23.35 Mr. Justice.

I will add only one statement. There is one…

Unknown Speaker: Would it be possible without this for the Master to say that in deciding your case, he now decides against you but he goes a little step further.

He could not do that.

I mean could he given this relief without them asking for?

Mr. William F. Sheehan: No, the Special Master can decide the United States complaint without reaching any of the issues posed by the counterclaim in our view.

Unknown Speaker: I am saying he does grant 24.12 the counterclaim asked for without the state asking for it?

Mr. William F. Sheehan: Well, to the degree that there is an identity of issues as a state asserts between the subject matter of its counterclaim and the subject matter of the Government’s complaint then there is no necessity for the counterclaim.

That is what you are driving up, Mr. Justice?

Unknown Speaker: I am saying that they did not file the counterclaim and the case went to judge and the Special Master ruled against you and gave them the additional leave which they had not even asked for.

Would that be wrong?

Would that be a violation of the sovereignty?

Mr. William F. Sheehan: Well, I think that the United States would object in that.

No, the Special Master could not give them the relief that they are asking for in their counterclaim.

They are seeking a declaratory judgment in their counterclaim.

If we were to lose our complaints, the result would be that we would not be entitled to a declaratory judgment in our favor.

The courts could not or the Special Master could not in that case award a declaratory judgment that was not asked for by the state anymore than he could award any affirmative relief on behalf of the state.

Unknown Speaker: But if you lose on the merits of the claim that you asserted in your original complaint a fortiori the merits of the counterclaim would be decided against you, wouldn’t it?

You claimed that the state has no power to regulate fisheries between the three-mile limit and the three-league limit as I understand it is that…

Mr. William F. Sheehan: That’s correct.

Unknown Speaker: And...

Mr. William F. Sheehan: And if we lose…

Unknown Speaker: If the Master says and this Court ultimately says, sorry, the State does have a power to regulate fisheries between the three miles and three leagues within a fortiori would have power to regulate fisheries within the three mile.

Mr. William F. Sheehan: I think It would, at the very least, be very strong precedent against the subject when sued by the United States.

Yes, that is certainly true.

If there are no questions that is all I have.

Chief Justice Warren E. Burger: Very well.

Mr. McKenzie.

Argument of Sydney H. Mckenzie Iii

Mr. Sydney H. Mckenzie Iii: Mr. Chief Justice and may it please the Court.

If, in fact, the Sovereign Immunity is, as the Federal Government asserts, absolute but for statutory waiver, then indeed we probably do like the right to assert this counterclaim.

If, however, as we submit and as we submitted in our memoranda, The Thekla case, decided by this Court, does open the door, even a crack to counterclaims.

In order to completely determine an issue where the Federal Government enters into litigation and where there is no danger to the public interest then this is the most appropriate case to apply that doctrine in The Thekla.

In that case, this Court asserted the reasons that have prevailed against creating a government liability in tort do not apply to a case like this and on the other hand, the reasons are strong for not obstructing the application of natural justice against the government by technical formulas, when justice can be done without endangering any public interest.

Unknown Speaker: And you are reading from?

Mr. Sydney H. Mckenzie Iii: I am reading from Luckenbach Steamship versus The Norwegian barque, the Thekla.

Unknown Speaker: Wasn’t that pretty well limited to admiralty cases by the Shaw case that was decided later?

Mr. Sydney H. Mckenzie Iii: No, Your Honor, I submit what the Shaw case did was simply state that the Thekla should not be interpreted as throwing the gates open wide to counterclaims against the Federal Government, and I do not think it does, and I do not think the language of it should be interpreted as doing so.

I do not believe that it did limit it to the -- it distinguished it on the grounds that it involved a liable involving vessels but in distinguishing on that factual basis, it simply said that the case does not throw the gates open to counterclaims.

I do not submit that it does throw the gates open to counterclaims.

Unknown Speaker: Except this one.

Mr. Sydney H. Mckenzie Iii: Well, except this one as one unique circumstance, Your Honor, and it is unique.

Unknown Speaker: But what limit would you put on it?

Mr. Sydney H. Mckenzie Iii: I would put on it the limits of a counterclaim which one, does not involve the expenditure of public funds; two, does not involve an assertion of a right regarding federal property; and three, does not interfere with public administration.

Unknown Speaker: Well, what 29.12 United States says that interference with what the 29.16.

Mr. Sydney H. Mckenzie Iii: Well if they say, it involves...

Unknown Speaker: An interference with the federal control 29.22.

Mr. Sydney H. Mckenzie Iii: But that is not what they said, Your Honor.

Unknown Speaker: But what if they did?

Mr. Sydney H. Mckenzie Iii: What if they did?

I would submit that it still would not...

Unknown Speaker: What is your thought of -- what do you understand the Government’s theory is with respect to the area between three and nine marine league?

Mr. Sydney H. Mckenzie Iii: Well, unfortunately, the arguments in their brief and their arguments and the statements by state department officials run somewhere non-parallel to each other.

In their briefs, they argued that really the reason you do not want to bother with this is because if somebody comes in to within three leagues they are likely to be stopped by the Federal Government out there and they are not likely to come within three miles so it is not an issue that we should be bothered with at this time.

Their position there really is one of in effect saying it is not going to make any difference in foreign affairs.

On the other hand, the state department officials who responded to interrogatories simply said that it is their understanding that the Federal Government has absolute and unilateral control over foreign nationals fishing in Florida waters or any other waters.

I would submit that it is really on the basis of in part federalism that we have come before this Court.

They have argued in their argument on instituting the original suit that within the three mile to three-league area that it is imperative that this Court decide the issue and that they filed their complaint.

The reason being that if we arrest a foreign national in that three league to three mile area, that it may cause this Court to be faced with a situation or it cause the Federal Government to be faced with a case where we have embarrassed the Federal Government in its international policy by arresting a foreign national that they do not feel we should arrest.

Unknown Speaker: Well, don’t you think there is something to be said for that if anyone on behalf of a dozen or more states is free to go out and grappling hooks on a Russian fishing boat, or Panamanian or whatever and pull them into the shore and hold the crew in custody.

Mr. Sydney H. Mckenzie Iii: Absolutely, Your Honor and that is exactly our point in bringing this counterclaim.

What is true between three miles and three leagues is just as true between the coastline and three miles.

If we can impair...

Unknown Speaker: That all goes to the merits of this controversy.

We are not here involved with that, are we?

Mr. Sydney H. Mckenzie Iii: I am sorry, Your Honor.

Unknown Speaker: All these things go to the merits of whether or not you are right or wrong to the merits.

Mr. Sydney H. Mckenzie Iii: Well, in order to determine whether we fall within what we feel as the exception to the absolute prohibition against counterclaims as expressed in the Thekla case.

I think you have to address the merits of our relief, what relief we are seeking.

We are seeking a pure declaratory judgment.

We are not seeking -- if the declaratory judgment was decided, the limitations of the relief would be -- if there were any limitation, it would be limitation on the States, not limitations on the Federal Government.

We recognize that Federal Government has concurrent power to exercise police power within this area, so that no decision will be made limiting the Federal Government’s police power, no monetary decision would be made against the Federal Government.

No limitation of their administrative powers would be asserted, no embarrassment would come to the Federal Government as in some other cases.

This is a peculiar, unique case where the States of Florida and Texas need an answer.

They need an answer to an issue that, in basics, it was raised originally by the Federal Government.

That is the basis of our coming in to court.

That is the basis of our seeking this litigation where we would be placed in a position where even though a partial addressing of the issue had been made, where we would not be able to properly direct our people as to what to do or not to do and they have indicated to me that they… Yes Your Honor.

Unknown Speaker: Is it not possible that the Master and presumably this Court may accept the report, would rule that the same rule of law applies within the three-mile limit as applies between the three miles and the nine miles limit and if he does, then won't you get your answer when the case is all over?

Mr. Sydney H. Mckenzie Iii: Well, Your Honor, of course something like that would be true in any case where there was a possibility of a counterclaim that a court might go beyond the declaratory relief of the original action but the result would be that by relying on happenstance and chance in that way, the positions of the parties would not be set forth for the benefit of the Master or for the benefit of this Court.

Unknown Speaker: The other thing that you are really worried about is if the Court rules with the Government you can't file a new suit because of Sovereign Immunity.

Mr. Sydney H. Mckenzie Iii: Well, that is why I say it is a matter of happenstance.

Of course, that is what we are concerned with.

Unknown Speaker: Weren’t you considering filing the suit before the Federal Government did?

Mr. Sydney H. Mckenzie Iii: Were we considering filing it?

Unknown Speaker: Yeah, and found out you could not, so you waited.

Mr. Sydney H. Mckenzie Iii: Not to the best of my knowledge, Your Honor.

Unknown Speaker: It is not possible, is it?

Mr. Sydney H. Mckenzie Iii: Our people were asserting their rights quite unequivocally, and I think that is what inspired the Federal Government to bring this suit.

Unknown Speaker: But the point is that right now the Federal Government withdraws the suit.

Mr. Sydney H. Mckenzie Iii: Yes, Your Honor.

Unknown Speaker: So, would your counterclaim be ignored.

Mr. Sydney H. Mckenzie Iii: If they would -- yes and I am saying if the issue it should be…

Unknown Speaker: The only way you have got a counterclaim is because they filed a suit.

Mr. Sydney H. Mckenzie Iii: And that is exactly the language of the Thekla where they said, it is said that there is no statute by which the Government accept this liability.

You joined in the suit and then carried with the acceptance of whatever liability the courts may decide to be reasonably incident to that act.

What we are asking is that if the Court decides that this is a suit that should be brought, if the issue of police power in the adjacent coastal waters is a proper issue to be before this Court, then it makes no sense to decide half the issue that it is appropriate without any exposure to the Federal Government for the Master and this Court to decide the entire issue, that it is appropriate that it comes within all doctrines of judicial expediency, one of point which was raised by the Justice Department in earlier case today that multiple litigation is something that they 36.22.

And I suggest that if they 36.25 in that case, it is appropriate for this Court to uphold it in this case Your Honor.

Thank you.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.