Transcript

IN THE SUPREME COURT OF THE UNITED STATES

STATE OF CALIFORNIA, Plaintiff v. STATE OF NEVADA, Defendant

No. 73 Orig.

April 14, 1980

The above-entitled matter came on for oral argument at 1:00 o'clock p.m.

BEFORE:

WARREN E. BURGER, Chief Justice of the United States
WILLIAM J. BRENNAN, JR., Associate Justice
POTTER STEWART, Associate Justice
BYRON R. WHITE, Associate Justice
THURGOOD MARSHALL, Associate Justice
HARRY A. BLACKMUN, Associate Justice
LEWIS F. POWELL, JR., Associate Justice
WILLIAM H. REHNQUIST, Associate Justice
JOHN PAUL STEVENS, Associate Justice

APPEARANCES:

JAMES H. THOMPSON, ESQ., Special Deputy Attorney General, Capitol Complex, Carson City, Nevada 89710; on behalf of the Defendant

JAN S. STEVENS, ESQ., Assistant Attorneys General, 555 Capitol Mall, Suite 350, Sacramento, California 95814; on behalf of the Plaintiff

PROCEEDINGS

CHIEF JUSTICE BURGER: We will hear arguments next this afternoon in the State of California v. the State of Nevada.

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

ORAL ARGUMENT OF JAMES H. THOMPSON, ESQ., ON BEHALF OF THE DEFENDANT

MR. THOMPSON: Mr. Chief Justice, and may it please the Court:

The State of Nevada submits that the real issue in this case is whether California and Nevada in 1863 constitutionally set their joint State boundary. Nevada submits that they did.

The second question is assuming that boundary was constitutionally set, that the United States, whether they had the power to move it onto a new land. Nevada submits that the United States did not have this power under the Constitution.

Nevada does concede that if this were a proper case for application of the doctrine of acquiescence that Nevada has acquiesced in the present marked lines, the lines recommended by the Master.

We submit that this is not a case for the application of the doctrine of acquiescence, because to apply the doctrine in this case would confer upon the Executive branch of the Government the power to act upon State boundaries. And this Court in Rhode Island v. Massachusetts many years ago said:

"There can be but two tribunals under the Constitution who can act on the boundaries of States, the legislative or the judicial power, the former is limited, in express terms, to assent or dissent, where a compact or agreement is referred to them" -- meaning Congress.

QUESTION: You say acquiescence is inapplicable here and your reason for it is that it is the United States that made the mistake?

MR. THOMPSON: Yes, sir, it is our contention that the United States had no power to move the boundary under the Constitution. Therefore --

QUESTION: Why is acquiescence any less persuasive in a situation like that than where it simply drafts a wrong decision of this Court or a mistaken decision of this Court or a mistake in a surveyor's note?

MR. THOMPSON: We contend that the failure of the power of the United States to move the boundary goes to California's claim of right in which acquiescence has always been applied on the claim of right in the State. In all the boundary decisions of this Court there has always been an enabling Act or something of that nature, a concession from Virginia to the United States, a monument of title, a color of title. And California, we contend, does not have that because they claim the United States has wrongfully moved, taken part of Nevada and given it to California.

QUESTION: I take it that if we adopt the Special Master's report and if you take the Special Master's -- it includes, what, 5,000 acres of land or so, that the United States purported to give to Nevada?

MR. THOMPSON: It is approximately 218 square miles.

QUESTION: The land that the United States purported to give to Nevada and Nevada purported to convey to settlers.

MR. THOMPSON: Forty-six hundred acres, Your Honor.

QUESTION: And then those titles resting in the change from U.S. to Nevada to owners, that land will now be in California.

MR. THOMPSON: That land would be in California by the Master's decree. But concurrently with that, California --

QUESTION: Let me ask you: What is your interest?

MR. THOMPSON: Interest in those patents?

QUESTION: What is your interest, is it just a matter of jurisdiction and whether the land is in Nevada or not?

MR. THOMPSON: Yes, territorial sovereignty, Your Honor.

QUESTION: That is it?

MR. THOMPSON: There is some question by California as to the legality of those private titles.

QUESTION: But there isn't anything like oil or minerals or --

MR. THOMPSON: No, sir. Nevada still --

QUESTION: -- taxes, or anything. It is just sovereignty.

MR. THOMPSON: Yes, sir, territorial sovereignty, the political integrity of the State.

QUESTION: The Special Master's report wouldn't have any impact on private titles, would it?

MR. THOMPSON: I don't think it does, particularly --

QUESTION: Even if we accept the Special Master it wouldn't have any impact on the private titles?

MR. THOMPSON: Not according to Nevada. California and the United States have some question about it but I could find no parcel of land patented by both States, such as you had in Coffee v. Groover or Poole v. Fleeger. I haven't found any parcel.

QUESTION: Would present landowners have to get their title quieted in California?

MR. THOMPSON: Well, if the Special Master's line is decreed, this Court I remember in Maryland v. West Virginia that it was the duty of the law-making bodies of those two States to enact legislation validating the new found --

QUESTION: Well, what if we accept the Special Master's report, are there some more proceedings before the Special Master that have to go on?

MR. THOMPSON: Yes, sir, he has made a recommendation that California be permitted to file an amended complaint in which the matter of titles and certain claims will be asserted against the United States by California. I think Mr. Stevens will go into that.

QUESTION: But you are not concerned with that, is that correct?

MR. THOMPSON: No, sir. We are strictly concerned with the movement of part of our territory to the State of California.

Congress can act, they can prescribe a boundary, they can establish it, they can set it. But once it is done, they can't move an established boundary. So you are back to the question did the joint survey establish the boundary between California and Nevada. And, if it did, it is our contention that the United States has no power whatsoever to go out there and physically move it, to give part of Nevada, a significant portion of territory to California.

So the dispositive question really to be answered and indeed to be faced, because California won't face it, the Special Master did not face it, is did the Federal Government act under a power under the Constitution when it moved the posted boundary. And that question has not been addressed and we submit that it has to be looked at and answered, you just can't go on acquiescence, because there is no --

QUESTION: I must confess I really don't understand the argument. If the claim of right of California is it owns up -- it has sovereignty up to the 120th Meridian and if they thought they were claiming land up to the 120th Meridian, does it matter whether the survey was done by a private person who was misinformed or the United States Government or is California or Nevada --

MR. THOMPSON: If it is first set on the ground and marked, that is the boundary. Under the Constitution you would then have to go to the compact clause to move it or by suit in this Court.

QUESTION: The acquiescence cannot move it even though the parties believe that is where it is?

MR. THOMPSON: No, sir, because the actual moving was without constitutional authority and California's title is only so good as the title of the United States to that territory.

QUESTION: Where does the acquiescence principle come in?

MR. THOMPSON: The Special Master in California urged it was a simple case of acquiescence, like any other boundary.

QUESTION: At least you can't acquiesce if the boundary is marked on the ground.

MR. THOMPSON: We cannot acquiesce and avoid a constitutional act.

QUESTION: In Arkansas v. Tennessee, I think it was Chief Justice Hughes' opinion and in the Indiana v. Kentucky opinion, certainly the acquiescence principle was applied.

MR. THOMPSON: In every case before this it was correctly applied, there was a claim with color of title in every case. It stated in there that Kentucky succeeded to the ancient right and possession of Virginia. There was a color of title.

California is trying to take advantage of an unconstitutional void Act and say we have got a valid claim to it. And, as I say, the question has not been addressed. We tried to address it and we have raised it and for the first time I have someone who is listening to it.

If the United States did act under the Constitution, it did have this power to set the boundary, then the decision of this Court should rest upon the holding to that effect, that it was pursuant to a constitutional power and not upon acquiescence. Because we can't acquiesce and avoid an Act.

And this Court on several occasions has held that the State cannot confer on the United States a absent power. Chief Justice Marshall in McCulloch v. Maryland said:

"These powers (of the United States) are not given by the people of a single State. They are given by the people of the United States. . . Consequently, the people of a single State cannot confer a sovereignty which will extend over (the people of the United States). . . because it is the usurpation of a power which the people of a single State cannot give."

And Nevada cannot by acquiescence, silent submission, constitutionalize the usurpation of a power.

Another case, Pennsylvania v. Wheeling Bridge, there was question whether a compact between two States and which Congress had consented to could offer a restriction upon the power of Congress under the Commerce Clause. The Court said, clearly not. Otherwise Congress and two States would possess the power to modify and alter the Constitution itself.

There are three other decisions of this Court, Morley v. First Municipality, Coyle v. Smith and Pollard v. Hagan that all said the same thing.

The Special Master said this was a novel argument. It isn't. It goes back to Chief Justice Marshall. He calls it a novel argument. We submit he could not have been more wrong.

Clearly then, since a state cannot directly -- as these decisions say -- cannot directly alter the Constitution, how could Nevada ever do it by -- indirectly by acquiescence? It can't, it can't be done. Not under the past decisions of this Court.

QUESTION: Well, supposing in Pollard, this Court ultimately held that Congress had no right to admit the State of Mississippi or Alabama, whichever it was, the way it did because it had a right to be admitted on an equal footing with the other State, supposing that for 90 years each of the States had acquiesced in the boundaries set by the United States at the time it admitted the State of Missisippi, do you think acquiescence would have been out of place there?

MR. THOMPSON: I think it would have been applied there if there was a survey on the ground at the time of the admission. They were bound to observe that boundary.

QUESTION: But the statute admitting the State to the Union prescribed --

MR. THOMPSON: Prescribed the boundary. It had not been set on the ground.

QUESTION: So that is the critical thing.

MR. THOMPSON: The United States would have been free to go out there and set it.

QUESTION: You think the critical aspect of the acquiescence doctrine is the fact the boundary has been marked on the ground?

MR. THOMPSON: Yes, sir.

QUESTION: At the time of admission?

MR. THOMPSON: Yes, sir. And if the power was exhausted, then to change it except by the Compact Clause of original jurisdiction of this Court.

QUESTION: The question is where a certain meridian is, wasn't it?

MR. THOMPSON: Yes, sir, except --

QUESTION: You admitted it was marked out on the ground at a certain place?

MR. THOMPSON: Yes, sir.

QUESTION: And under later surveys it was put in another place.

MR. THOMPSON: Yes, sir, every time they would go out and survey it, they would move it. No one has ever agreed on where it is.

This Court has always preferred stability of location over stability of --

QUESTION: Is there any question about where it was marked on the ground at the time of admission?

MR. THOMPSON: No, it was marked on the ground at time of admission.

QUESTION: Well, is there any question now where that mark was?

MR. THOMPSON: No, sir, there isn't.

QUESTION: Can you find it?

MR. THOMPSON: Can you find where the Houghton-Ives Line was?

MR. THOMPSON: Yes, sir, there is testimony in another case that it can be reestablished.

QUESTION: Is that true of the diagonal line as well as the north-south line?

MR. THOMPSON: Yes, sir, patents were issued by the United States with relation to both the diagonal and the meridional boundary and you can go to the United States' own records in the BLM Land Office and they are by metes and bounds description.

QUESTION: They are metes and bounds?

MR. THOMPSON: Yes, sir.

QUESTION: Can you still identify the calls?

MR. THOMPSON: Yes, sir, in the evidence there is township plats for six townships, running from Lake Tahoe north about 25 miles and there are some chains and links, the Nevada-California boundary line. And the patents were issued in relation to that line on either side.

QUESTION: Are the surveyor's notes extant?

MR. THOMPSON: Yes sir. I will put everything in evidence for those six townships where it is heavily populated by Western standards. Those are in evidence.

What California is actually asking this Court when she requests the Court to hold that acquiescence is controlling, is for the Court to apply the equitable doctrine of acquiescence so as to alter the Constitution, the organic law of the land.

And Chief Justice Marshall again put to rest any notion that the Constitution would be changed by ordinary means in Marbury v. Madison. There he said:

"The Constitution is either a superior paramount law unchangeable by ordinary means or is on the level with ordinary legislative Acts. And if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power of its own nature illimitable."

I would submit that the Constitution is not an equitable document. It is a legal document setting forth relations of the States between each other, or among each other, among the States vis-a-vis the Federal Government. And those legal constitutional relationship cannot be changed by the application of equitable doctrine normally applied between two private citizens.

I would like now to talk about the joint State survey, the Houghton-Ives Line. California by statute prescribed that they would use in this joint survey two terminal points set by Lt. J. C. Ives, not to be confused with Butler Ives. These points were established at the Colorado River and the 35th Parallel and at Lake Tahoe. And they prescribed that these would be used and they were set by the United States Boundary Commission in 1861. So two years later the survey is run. It is a complete survey of the 120th Meridian and it was surveyed along the lake boundary for about 102 miles and the following year California appropriated money to put a permanent marker at terminal point so as "to enable the survey to be continued from that point at some future time."

That monument was put up. The following year, in 1875, Lawson, who also participated in the other survey, Lawson extended the survey another 73 miles, acting as a joint commissioner for both States. So you have to remember at that time the Nevada boundary with California only went as far as the 37th Parallel, it did not go to the Colorado River. So that joint boundary was surveyed within a few miles of the 37th Parallel by Lawson's terminal monument.

So the States when they accepted it, they said, we accept that survey, it is the official boundary so far as it has been run. So they knew it was incomplete. It hadn't been run all the way to the Colorado River. They accepted it the way it was. And incomplete surveys are not unusual at all. The United States Government has surveyed many a State boundary by piecemeal surveys. Probably the longest one is the Majors Darling-Preston Line by three different surveyors on the 37th Parallel between New Mexico Territory and Colorado. So it is not unusual to do it in piecemeal fashion. And General Houghton, who was California's commissioner of the joint survey, reported to the legislature that, we have marked on the Oblique boundary the important part to be marked at this time.

I don't think there were any settlements along there. At this time it was within the power of the United States to have gone out there at that terminal monument, close the public land surveys, and extend Lawson's terminal monument on to the Colorado River, fill in that gap. They would have plenty of power to do that.

QUESTION: Well, why was it within the power of the United States to do that at that time, since both California and Nevada had been admitted to the Union?

MR. THOMPSON: The United States Government surveyed many State boundaries which turned out to be State boundaries; our northern boundary with Idaho was surveyed by the United States.

QUESTION: Are you saying that after two States have been admitted to the Union by an Act of Congress that the United States Geological Survey can come along and run a survey line that doesn't comport to the Act of Congress and that then becomes the boundary?

MR. THOMPSON: No, sir, I am not, Mr. Justice Rehnquist. I am saying that the States can set it the first time or the United States can set it the first time. Since the States actually ran the survey, that fixed it. But there was still a gap in it and the United States certainly had an interest in continuing that line so they could close the public land surveys; but, they didn't do that.

California has never argued that the Houghton-Ives Line did not set the boundary. They said but it was only observed for ten years. Of course it was ten years, because --

QUESTION: When was that?

MR. THOMPSON: 1864, Your Honor. Of course it was only there for ten years because the United States had picked up the monuments, they were gone. They sent them over to Von Schmidt's line. California would have you believe that for some period of time, unspecified, at which a State's right to rely on its boundary becomes vested and prior thereto it is subject to being divested. That is sheer nonsense. Nevada submits that the two States acquired a vested boundary the very day they adopted the joint State Houghton-Ives Line posted it.

California complains, but the Federal Government never formally approved th Houghton Line, as though there were some requirement, perhaps by Congress, I don't know, to officially proclaim a survey as the boundary. There is no such requirement. Outside of Congress' approval of a line between Texas and the United States Territory and also the Carpenter survey between New Mexico and Colorado, I don't know if they have ever formally approved any survey.

What happens is that if they like a survey, if it is run, the General Land Office closes the public land surveys on that land.

QUESTION: What happens in a case of land that is still territory. Say in 1864 when the Territory of New Mexico included both New Mexico and Arizona and President Lincoln severed Arizona and made it a territory in its own right. Was that done by a survey or by an Act of Congress?

MR. THOMPSON: They were all done by surveys through appropriation Acts by Congress. And the General Land Office would hire surveyors.

QUESTION: But when Nevada was carved out of Utah its western boundary was specifically made the eastern boundary of California.

MR. THOMPSON: That is right; yes, sir. But the United States surveys the boundaries and usually they were always between two territories of the United States. Or, if it were between a State and a Territory there was usually a commissioner representing that State. In fact the only boundaries that the United States has ever surveyed between two existing States are both involved in this proceeding. The boundary between California and Oregon, they were both States; and the boundary between Nevada -- on its north boundary with Oregon.

QUESTION: Well, did the record indicate why the Von Schmidt survey was ever run?

MR. THOMPSON: Yes, sir, it was run not because of any dispute between States. The United States surveyor in California wrote the General Land Office in Washington and said the Majors monument, the survey between California and Oregon, was some 2 miles and 30 chains further west than the Houghton-Ives monument, the joint State line. And they said such a discrepancy should not go unnoticed. We are concerned, let us go up there and do something.

Well, it is our contention they had no power to do that, that the line had been fixed. That is how it all got started.

QUESTION: There were two known lines on the ground that didn't jibe.

MR. THOMPSON: Yes, there were two monuments, both purporting to be the 47th Parallel and the 120th Meridian. But there was only one line marked on the ground, the Houghton-Ives line meridional line down to Lake Taho. Majors never run a line that way. He went straight to the Pacific Ocean.

QUESTION: Let me go back for a moment to the Diagonal line.

Masters said that the Houghton-Ives survey extended from the Oregon border to approximately 103 miles southeast of the intersection in Lake Tahoe. It was not continued to the Colorado River and therefore approximately 302 miles of the Oblique boundary were left unmarked and unsurveyed.

MR. THOMPSON: At that time there was approximately 98 miles left unsurveyed, because Nevada's boundary with California did not extend to the Colorado River. That was another 200 miles further down.

QUESTION: Is it correct that part of the boundary had not been marked?

MR. THOMPSON: Yes, sir, and Lawson in the 1865 --

QUESTION: Well, then, how can you say it was all on the ground? It wasn't.

MR. THOMPSON: So much of it as had been run. This is frequently done. Once it is run it is posted and it serves to delineate the political sovereignty of each State.

QUESTION: Then your argument does not apply to the southeasterly part of the southeasterly line?

MR. THOMPSON: No, sir.

QUESTION: So at least as to that you would have to perhaps assume that the doctrine of acquiescence would apply.

MR. THOMPSON: Well, we submit it was surveyed within about 20 miles of the 37th Parallel. That is where Lawson terminated his survey. At that point there was a gap. We contend though that the United States, if they wanted to fill that gap they should have started at the terminal monument on the State survey and surveyed on to the Colorado River.

QUESTION: It is a question of filling a gap rather than moving a line?

MR. THOMPSON: Yes, sir, filling the gap from the already posted terminal monument.

Indeed, all that is necessary for Federal recognition of approval of a boundary is the closure of a General Land Office upon that line. And this Court has held in Louisiana v. Mississippi that the closure there and the deeding to the State of Louisiana lands under the swamplands grant approved Louisiana's title up to that boundary line, the very thing the General Land Office has done here. And they called that approval and recognition by the Federal Government.

At the time of admission of Nevada to the Union Congress is presumed to know the boundaries of a State. That is West Virginia v. Maryland. And at the time of Nevada's admission to the Union there was a defined boundary on the ground. California had already adopted it by statute ten months before Nevada was admitted to the Union. And Nevada submits that the Houghton-Ives boundary was constitutionally established.

And this Court has repeatedly held that you cannot move the territorial limits of a State. Washington v. Oregon, Louisiana v. Mississippi and New Mexico v. Colorado, which is the most analagous case to this one, there this Court clearly held after Colorado had been admitted to the Union in 1876 its right to rely upon the line previously established could not be impaired by any subsequent on the action on the part of the United States. And Congress in that case by resolution had approved the Carpenter survey and President Roosevelt -- Theodore Roosevelt vetoed it and Congress never overrode that veto, he put the line back where it was.

The Special Master said Nevada's territory was not alienated when Von Schmidt picked up these granite markers and set them over to his line.

I suggest the mere fact of all those patents and, the Nevada patents today, the plan to the west, the Von Schmidt line is ample proof there was an alienation of territory. It was the Special Master's conclusion that there was no alienation of territory. He ignores all the evidence on the matter, that Houghton-Ives was the first practical location on the ground. And being marked for the first time, neither California nor Nevada gained or lost any territory. They eliminated their political sovereignty for the first time. And that is Virginia v. Tennessee. Therefore there was no need for a compact since it was the first time they had either gained or lost territory.

It falls that any movement of this jointly surveyed State boundary would alienate the territorial estate. And it did.

QUESTION: Why can you say that neither one of them gained or lost territory if the line is not in fact on the 120th Meridian? Wherever you put it, somebody had to lose if it was erroneous.

MR. THOMPSON: No, sir, the 120th Meridian is subject to being moved. It may be moved four years from now in 1983 when the Geodetic Survey tightens up the geodetic grid. These are astronomic lines and they are set by a shooting on the stars. The 120th that is marked on the maps that you have in front of you is a geodetic line. But everyone who goes out to set an stronomic line is going to put it in a different place, it is just human nature, nature of the surveying technique and equipment.

QUESTION: I thought that there were more perfect methods of measuring those -- ascertaining those lines now than existed a hundred years ago.

MR. THOMPSON: There are; yes, sir, you are right.

QUESTION: With the best available modern technology that we would find the very first time they drew the line on the ground they made some mistakes and they therefore took territory from one State or the other.

MR. THOMPSON: That is true, there is evidence in this case that we can receive signals from the stars and fix the 120th Meridian within three feet of its true location. But I submit --

QUESTION: You don't contend that is what should be done?

MR. THOMPSON: No, sir, because you would have to go out and survey every Western State boundary all over again. It would be an endless -- really upset titles.

MR. CHIEF JUSTICE STEWART: Mr. Stevens.

ORAL ARGUMENT OF JAN S. STEVENS, ESQ., ON BEHALF OF THE DEFENDANT

MR. STEVENS: Mr. Chief Justice, and may it please the Court:

California's characterization of the Federal action in surveying the Von Schmidt line as it is described and delineated in the exhibits that we have lodged with the Court for oral argument would be somewhat different from Nevada's. Our position is that the Federal Government did not in 1872 move the boundary between California and Nevada. Rather, what the Federal Government did was to mark that boundary at a different location and the boundary which the Federal Government marked was immediately accepted by both States and respected by them in all of their political actions and jurisdiction over since 1872 to the present.

QUESTION: There wasn't any confusion about the line was before 1872, at least that it was marked on the ground, almost all of it.

MR. STEVENS: It was from Lake Tahoe north, certainly, Mr. Justice.

QUESTION: And so there was that mark. And what was the occasion for putting it in the different location, as you say?

MR. STEVENS: It is our understanding that there were substantial doubts raised, primarily by the General Land Office, as to the accuracy of the original Houghton-Ives line. And for that reason --

QUESTION: Which was supposed to be what, to reflect what?

MR. STEVENS: To reflect the 120th Meridian on --

QUESTION: On the ground.

MR. STEVENS: -- on the ground, exactly. And also to extend southeasterly for approximately 103 miles south of Lake Tahoe the so-called Oblique boundary to which Justice Stevens made reference.

The extension of that boundary by Mr. Lawson, to which counsel has referred, was authorized unilaterally by Nevada and California had no role in either authorizing or approving it subsequently.

So the Houghton-Ives line insofar as it existed was marked on the ground from Lake Tahoe to Oregon and it was marked on the ground for approximately 103 miles southeasterly from Lake Tahoe.

QUESTION: Well, suppose the two States in 18 -- when was it -- Von Schmidt -- '72?

MR. STEVENS: '72.

QUESTION: Suppose the two States had got together and said, gee, I think it is probably a mistake, they used this mark on the ground and that is where it was when Nevada was admitted and that is the line that both the legislatures accepted at the time of Nevada's admission, anyway. Didn't they accept the line as it was marked on the ground?

MR. STEVENS: Yes, they did, Your Honor.

QUESTION: Well, suppose they had said then, well, we want to change it, we want to change our boundary. And so they signed up an agreement.

Would that have been a valid agreement?

MR. STEVENS: I believe that it would have been, Your Honor. And what happened in fact is very close to that.

QUESTION: I know you must have to argue that, don't you?

MR. STEVENS: Well, whether it is characterized as agreement or by acquiescence -- or as acquiescence.

QUESTION: Wouldn't that have required the consent of Congress?

MR. STEVENS: I believe there is a question as to that, Mr. Justice. Justice Field discussed this at some length in the course of Virginia v. Tennessee and it was his feeling that there were several answers to that case, which of course was an acquiescence case and the same point was raised.

QUESTION: Well, what about my example, what is the argument they wouldn't have had the consent of Congress if the two States wanted to change their boundary?

MR. STEVENS: Well, I believe Justice Field's first point, at least, was that in effect this was not an agreement that altered the political balance of the States or affected sovereignty to such an extent as to require express congressional ratification or a compact within the meaning of that clause.

His second point was that congressional approval can be inferred as well as expressly given in cases in which the States have reach an implied agreement or in which they have acquiesced upon a boundary for a long period of years, and that this was a separate and independent ground equally supportive of the position that there was an acquiesced boundary. We believe that the same is true here. The lines which are in question have been observed by both States in the North for 108 years in every respect, in political jurisdiction school districts and county lines have been drawn up and they were immediately accepted.

QUESTION: Well, the United States, though, based on the old line conveyed in Nevada some land that was -- you claim was in California.

MR. STEVENS: That is right, Mr. Justice.

QUESTION: Well, so you infer United States acquiescence or approval of that agreement of moving the line?

MR. STEVENS: I believe so, because immediately after the new line was drawn the General Land Office directed that its public surveys be redrawn to close upon the new line. And subsequently if land title stability is to be a factor California received many lands based in reliance upon the new Von Schmidt line.

QUESTION: Upon the subsequent line, yes.

MR. STEVENS: So as a matter of equity --

QUESTION: You say California received new lands. You mean in the sense of political jurisdiction or in the sense of ownership of school lands and that type of thing? The United States patented lands in California based on the Von Schmidt line.

MR. STEVENS: That is correct, it did. It patented --

QUESTION: Otherwise it would have been in Nevada, under the old line.

MR. STEVENS: That is right, Your Honor.

QUESTION: That is where you say the United States acquiesced?

MR. STEVENS: Yes, Your Honor. That is our position. The United States not only expressly approved this new boundary line but it subsequently immediately took all steps that were necessary, including the recognition for public land purposes to recognize this as public land within California. Of course it did a lot of other things, too. The post office maps showed the new Von Schmidt line, the Federal judicial districts reflected that line and in every respect it was recognized by the United States as well as both the States ever since 1872.

QUESTION: Is it fair to say that California in this case depends upon treating acquiescence in the same way and having the same consequences as an affirmative agreement, an affirmative express agreement on the boundary?

MR. STEVENS: I believe that is basically one of the two points that we would believe militates for this line, Your Honor. Acquiescence, whether it is characterized as acquiescence or as agreement I am not sure is important, because we believe that both are shown under the facts here and under the reasoning of Justice Field in Virginia v. Tennessee.

We assumed, Mr. Chief Justice, for the purposes of this argument since Nevada has not referred to the alternative lines which it has urged before the Special Master that unless the Court desires us to discuss them we will address ourselves primarily to the principal lines in issue, the Houghton-Ives Line and the Von Schmidt Line in the north and the Coast & Geodetic Survey Line on the Oblique boundary.

Nevada had also --

QUESTION: Neither of you is very enthusiastic about a brand new survey.

MR. STEVENS: If the 120th Meridian is to be the boundary between Nevada and California and if the Court rejects the concept of acquiescence or acceptance of the lines which have been respected by both the States we believe that the only proper thing to do would be to order a new survey, as the Court did of course in the New Mexico case. And such a new survey could in fact depict the 120th Meridian with a great deal more certainty than the old instruments and the poor conditions of 100 years ago could.

QUESTION: I don't know about Nevada, but at least I take it that Judge Van Pelt was not particularly enthusiastic about this, he offered it as an alternative.

MR. STEVENS: That is right, Your Honor, he pointed out, and I think legitimately, that there is no boundary that could be not more precisely defined today than it could have been a hundred years ago. And this of course is very true. And this is why our principal prayer is for an acquiesced boundary rather than through a new survey by which California would actually stand to gain some rather significant land around Lake Tahoe.

QUESTION: Do you think when this description was originally agreed upon that people knew it would end up in the middle of Lake Tahoe, the meeting of the two lines?

MR. STEVENS: Well, Your Honor, I don't believe that land was very important to people and very little attention was paid to it.

Some question has been laid of course to the acceptance of both States, their readiness to accept a new boundary as laid by the United Stages in 1872. And perhaps the principal reason would be their eagerness to select from the public domain and to have these lands go into private hands, because as a practical matter of course unless the General Land Office had a boundary that it was happy with, it was going to be impossible for either California or Nevada to make selections of school lands and other lands that could in fact be put into private hands. And there was a great deal of pressure to do so in those days.

QUESTION: If they had just as accurate instruments in 1872 or 1860 as they have got today, and the same people were doing the two surveys, would the 120th be in the same place?

MR. STEVENS: Your Honor, it is our belief that if --

QUESTION: Is it denied or admitted or what is the position? Is the Meridian always where it is supposed to be, or is it moving?

MR. STEVENS: The evidence before the Special Master indicates that if an accurate survey were made today, California's line would extend anywhere from 1,200 to 1,700 feet into what is now Nevada if the North Lake Tahoe --

QUESTION: Suppose an accurate survey were made 100 years from now, then the 120th might be in a different place?

MR. STEVENS: I am not sure there would be a significant difference. There have been different data set from time to time. It is my understanding we are on the verge of getting another one.

QUESTION: That is based on corrections on the ground conforming to an abstract description. It remains constant, though, doesn't it?

MR. STEVENS: That is right, Mr. Justice Rehnquist. I don't believe in a direct answer to your question that there would be a significant difference.

QUESTION: Well, there is not supposed to be.

MR. STEVENS: No.

QUESTION: It isn't an accepted notion that meridians are traveling?

MR. STEVENS: That is right.

We believe that the record amply supports the Special Master's recommendations with respect to the location and the acceptance of this line. The California-Nevada boundary was established of course by California's 1849 Constitution and California has never consented to a different location. So the 120th Meridian must be the description of the California-Nevada boundary. No other description can take its place.

QUESTION: Unless there has been acquiescence.

MR. STEVENS: That is right, Mr. Justice Rehnquist. And actually I think that the acquiescence perhaps itself could only go to the location of that 120th Meridian on the ground. I am not sure California could acquiesce for instance in a different line at the 43rd Meridian west of Washington, which was one of Nevada's alternative suggestions, because that is an entirely different line from that set forth in the California Constitution.

QUESTION: Well, what about Justice Field's comment in the old Indiana case that it wouldn't significantly alter the balance of power between the States as a ground for allowing acquiescence?

MR. STEVENS: That might be used to argue and support such a different location.

QUESTION: Justice Field didn't know how valuable land around Lake Tahoe was going to be in the 20th Century, did he?

MR. STEVENS: He did not, Mr. Chief Justice, although he did come from California. It was not very valuable in those days.

The proof with respect to acceptance of this boundary by Nevada is rather incontrovertible. The Nevada Surveyor General pointed out in his 1873 report that the Federal Government was in the process of surveying a new line, depicting the 120th Meridian and he praised them for it. He said thus it will be seen that by the munificence of the general government within a year the State will be enclosed by an actual surveyed line and that troubles heretofore existing will be entirely and forever obviated. This was his opinion in 1873. We hope that his opinion will be borne out by the decision of this Court.

The Nevada State Controller promptly directed the county assessors to close their lines upon the new boundary. The legislature in Nevada used the new boundary to define county boundaries of Nevada. And of course the General Land Office directed that the public land surveys be closed upon it.

And ever since 1872 in the north and 1903 in the south with respect to the Oblique boundaries this has been the case. There is no dispute with respect to mutual observance by the two States of the boundary that is marked on the ground and respected by them today. And if stability is to be a factor, we would suggest that this boundary should be put to rest and ratified, in effect, by the Court as the accurate placement of this line.

QUESTION: Am I right in thinking that Nevada has no western boundary except the eastern boundary of California?

MR. STEVENS: Yes, Your Honor, I believe that that is the accurate description.

Now, the Nevada Constitution uses a dual description of its western boundary. Their Constitution refers to the 43rd Meridian west of Washington and the eastern boundary of California. But it has been our position that the facts before the Special Master pretty well showed that it was believed in those days the 43rd Meridian west of Washington was synonymous with the 120th Meridian west of Greenwich.

QUESTION: There is no other State involved?

MR. STEVENS: No, there is not, this is solely between California and Nevada.

QUESTION: What precipitated this dispute; I mean why are you all jerc if you have been so happy all these years?

MR. STEVENS: There were two principal factors, Your Honor.

The first is that it has been discovered from time to time and more lately, very recently that the location of the boundary was not an accurate depiction of the 120th Meridian.

QUESTION: You mean the Von Schmidt --

MR. STEVENS: Von Schmidt was about --

QUESTION: Houghton-Ives wasn't and neither was Von Schmidt.

MR. STEVENS: That is right, Your Honor.

QUESTION: So that is inaccurate.

MR. STEVENS: So it is not an accurate depiction of the 120th Meridian and there was some fear that taxes and criminal prosecutions and acts of the like could be challenged on the basis that in fact the California-Nevada boundary as set forth in law was not being followed by the States.

QUESTION: So it is a quiet title action?

MR. STEVENS: In the nature of one, Your Honor.

QUESTION: Yes.

MR. STEVENS: Of course the --

QUESTION: What is the other thing that precipitated it?

MR. STEVENS: The second concern that came to our attention was a ruling of the Department of the Interior which seemed to cast doubt upon the validity of titles which were granted in reliance upon the old replaced boundary, the Von Schmidt boundary. In effect, the Department of the Interior has held that a school land selection initially made in California and approved by the Department of the Interior at that time clear listed, in effect, but subsequently found to be located actually in Nevada remained public lands, notwithstanding the usual line of authority that once a survey is approved by the Federal Government of a selection made by a State, then the title has passed to the State or the persons who take under the State.

QUESTION: To homestead.

MR. STEVENS: To homestead, to internal improvement lands and to school lands.

QUESTION: I suppose your position is that the United States has acquiesced, too?

MR. STEVENS: We would hope that that would be the position.

QUESTION: Well, I thought you just argued here a while ago that the United States has recognized the Von Schmidt line.

MR. STEVENS: It has.

QUESTION: And yet I thought you argued a moment ago that the Interior Department has made some nonacquiescence acts recently.

MR. STEVENS: Very recently, in the 1960's. And our concern is that the stability of titles be treated as the Solicitor General suggests in further proceedings before the Special Master, because in the absence of this affirmative Interior decision we think that there would be very little difficultly in confirming the present boundary in its present place.

QUESTION: Is that dispute just between California and the United States; it doesn't involve Nevada, does it?

MR. STEVENS: Yes, it would involve Nevada, Your Honor, because Nevada has made a substantial number of selections, the validity of which could be cast into doubt by the decision --

QUESTION: Well, do you think -- how would that dispute be resolved in this case? How could you get the United states into this suit; could they intervene?

MR. STEVENS: They could, Your Honor. The Solicitor General --

QUESTION: Do you think the Solicitor General has got power to waive sovereign immunity?

MR. STEVENS: We believe that they would be properly before this Court. They could intervene because there is a question of possible U.S. title involved here.

QUESTION: Well certainly in the recent case that we wrote in Idaho v. Washington and Oregon, we held that even though perhaps only political sovereignty was involved, the United States was not an indispensable party and its intervention was not required, didn't we.

MR. STEVENS: And I would agree in this case, Your Honor, that the United States --

QUESTION: It is not a necessary party indispensable to settle your dispute?

MR. STEVENS: Right.

QUESTION: The question is whether you could go ahead and impede the United States in this case. Certainly you couldn't against its will.

MR. STEVENS: That is right.

To pursue this question, however, they have volunteered to participate in further proceedings. And we believe that this is a feasible way of coping with the problems that have come to earth respecting these titles.

Perhaps the United States can disclaim any interest in the patents that have been made pursuant to this old boundary. This has been suggested by the Solicitor General. Perhaps legislation passed by the two States and by Congress can solve it and perhaps this Court can offer some further relief, thereby settling all problems which have arisen from the California-Nevada boundary.

QUESTION: I have one more question.

California was the plaintiff in the case. In your original complaint did you ask the Master to declare the Von Schmidt line the correct line, or the 120th Meridian the correct line?

MR. STEVENS: We asked that the Von Schmidt line be declared to be the accurate one, Your Honor, it was basically in the nature of a quiet title as has been suggested. When alternative lines were suggested by Nevada, we felt it necessary to request an alternative survey of our own because if the entire location of the line was to be questioned to such extent, we felt that an accurate survey should be thrown in as an alternative to quieting, in effect, the present line.

The Oblique boundary of course we have referred to surveyed somewhat later than the north-south boundary. It was surveyed from 1893 to 1899 by the Coast & Geodetic Survey. And it replaced the Von Schmidt Line which is the only line that entirely surveyed the Oblique boundary from Lake Tahoe to the Colorado River.

Once again, we feel that this is clearly an accepted and an acquiesced boundary and the evidence is exactly the same with respect to its acceptance by the States, with two exceptions.

One, the period of acquiescence is somewhat shorter, it is 80 years rather than 108 years as it is in the north.

And the second thing in that this line was recognized not only in fact but in statute by both the States. Both States passed in 1901 and 1903 statutes expressly recognizing the fact the Coast & Geodetic line delineated their boundaries.

QUESTION: Do both Nevada and California recognize the Act of Congress in the 'Sixties as making the canalized Colorado River the boundary where California and Nevada have joint boundaries?

MR. STEVENS: Yes, Your Honor, we do. We have no problem as to the point.

Now, in the Oblique boundary, just by way of passing, Nevada gained 256 square miles but California nevertheless recognized that boundary initially and we feel it deserves equal recognition in this case.

We have indicated that we feel there is clearly authority for a new survey if it is necessary. And Oklahoma v. Texas represents good authority to that effect. In that case the line proposed by Texas had been rejected on the grounds that it wasn't properly authorized; the line proposed by Oklahoma was rejected on the grounds evidence of acquiescence was insufficient. And the Court felt that the proper remedy in that case was to direct a new survey to be made.

We have touched on the question of titles but I don't think it is necessary to touch on it at length in this proceeding, because what is before the Court directly of course is the location of the boundary between California and Nevada.

We do suggest that the Special Master and the United States have both properly recommended that this question be referred to further proceedings, because we believe that solutions are possible.

QUESTION: Well, that is not involved before us right now, is it?

MR. STEVENS: No, only to the extent that the Special Master --

QUESTION: If we just happen to agree with you on this acquiescence issue, we don't need to do anything else, do we?

MR. STEVENS: Certainly not at this time, Your Honor.

QUESTION: Well, if we did nothing else that would mean we acquiesced in the Master's recommendation that you continue this process, would it not?

MR. STEVENS: I assume it would.

QUESTION: You have never referred to him any issue about titles. You have just referred to him the dispute between the two States.

MR. STEVENS: That is right.

QUESTION: So we would have to expand his reference, wouldn't we, if he was going to go on and do something besides what he has done now?

MR. STEVENS: We have filed a motion, Your Honor, for the Commission to file an amended complaint which expressly raises this question.

QUESTION: So that we haven't acted on that?

MR. STEVENS: And you have not acted on that.

QUESTION: So in the absence of that, we would have to simply resolve the issue of the boundary line and if this Special Master went beyond the reference to suggest private title litigation, a decree reflecting that recommendation would probably be beyond the reference, wouldn't it?

MR. STEVENS: I am not sure, Your Honor. The Special Master initially recommended in its preliminary report that it would be advantageous to the parties and the Court to resolve all known disputes with respect to the determination of the joint common boundaries and that piecemeal litigation should be avoided.

QUESTION: There are other forums for settling these title questions, they don't have to be settled here.

MR. STEVENS: Your Honor, they may have to be.

QUESTION: Why is that? It is just a fight between the United States and the State.

MR. STEVENS: The controversy may involve both States and the United States.

QUESTION: Well, but not against each other.

MR. STEVENS: We know of no direct instance in which both States --

QUESTION: Well, then it can be settled somewhere else.

MR. STEVENS: To select the same parcel. It is possible that it could but since all three parties have interests in the lands affected, I think the Solicitor General has properly suggested that it may be that we will have to seek resolution in this Court.

It is the recommendation of the Special Master only that further proceedings be had with respect to this question and the Solicitor General has recommended only that such proceedings take place without the actual joinder of the United States and possibly without the necessity of further action here.

QUESTION: If we were to grant your motion for the amended complaint, do we know now whether Nevada will be in agreement with that, assuming we go with you on the main issues?

MR. STEVENS: By agreement, Mr. Chief Justice, you are referring to resolution of the question of titles?

QUESTION: Right.

MR. STEVENS: We would have every hope that we --

QUESTION: We don't know that now. Perhaps Nevada is not prepared to respond, but we will see.

MR. STEVENS: We can't speak for them, really.

There is precedent of course for such a proceeding. In the last case, Oklahoma v. Louisiana, which this Special Master presided over the question to possible Unites States title to an island, an island named Sam, the State line river as I recall, came up in the course of the proceedings and it was determined that a further determination was necessary to resolve the entire border controversy to ascertain what U.S. interests may be in that island.

Florida v. Georgia of course is the best and most apropos precedent for such a thing. In that case the United States Attorney General actively applied for leave to intervene in a boundary dispute between two States on the basis that millions of acres had been alienated by the United States in what it then believed to be Florida but Georgia was contending to be Georgia and that therefore the United States had a real interest to its grantees in participating in the proceeding and helping to assist the Court in ascertaining the propriety both of the boundary and the consequences of that boundary determination, the status of lands within the affected States. It was the duty to see the case was fully and well briefed, he argued, and the United States had a general interest in State boundaries because of political considerations.

Well, in that case Justice Tawney granted leave for the United States to intervene informally, as it was characterized at that time, and to present evidence and to participate but not to be granted leave as a formal party. And perhaps this resembles what the Special Master has recommended in this case, that the United States offer to participate with Nevada and California to help clear up this last remaining question which has been caused by these old boundaries.

QUESTION: These proceedings would determine the title to the United States and that is not a very informal participation if you are going to present the United States with a decree, is it?

MR. STEVENS: That is true, Mr. Justice White, and it may be necessary that they join formally at a later time. They have deferred presentation of their views and simply asked to be given an opportunity to participate informally until resolution can be had.

Basically, then, our position has been that the boundary question is one which is capable of easy resolution. It does not represent a case of the unconstitutional transfer of a boundary from one jurisdiction to another. Rather, it involves the location of a boundary in the ground which was accepted immediately by both States and has been relied upon by the residents of those States for over 100 years in one case and for 80 years in the other. The cases we think clearly support the Special Master's recommendation in that case that the boundary be settled where it has been and where we relied upon it.

QUESTION: Well, you think it is just as though there was a dispute at the time about where the boundary was, that it had never been marked on the ground definitely and people were in a big argument about where it was and so the two States agreed to have a survey. So it is marked on the ground and they both then accept it.

You think the situation is just like that?

MR. STEVENS: It is very close to that, Your Honor, if not precisely that.

QUESTION: The only thing is that there was a line on the ground.

MR. STEVENS: The difference is that there was a line and the States have accepted it. And the Federal government came along and marked a new line and the States promptly accepted that line and they have done so ever since.

QUESTION: All the time thinking that they were locating the 120th Meridian?

MR. STEVENS: That is right, that is correct. The 120th Meridian is we think beyond doubt the proper constitutional boundary between the States. And for that reason we haven't gone into the alternative line suggested by Nevada. We believe that the location which we have respected for all this time should be affirmed at this time.

QUESTION: The alternative line being the 43rd west of D.C.?

MR. STEVENS: Nevada's alternative being the 43rd west of D.C. And Nevada's second alternative being another line altogether drawn from a different location at Oregon border, which was represented as being the 120th.

QUESTION: Where in D.C. did the measurement start, Mr. Stevens?

MR. STEVENS: Your Honor, we believe it originally was in the White House and it was subsequently moved to the old Naval Observatory and then to the new Naval Observatory. And the one to which the Act of Congress of September 29, 1850 referred to is not entirely clear to us but in any event it would be approximately 2-1/2 miles farther west into California.

QUESTION: Leaving Washington at the bottom of all the confusion.

MR. STEVENS: It is involved, Your Honor.

Thank you.

MR. CHIEF JUSTICE BURGER: Do you have anything further, Mr. Thompson?

REBUTTAL ARGUMENT OF JAMES H. THOMPSON, ESQ., ON BEHALF OF THE PLAINTIFF

MR. THOMPSON: Yes, sir.

I might add that the 43rd Meridian did not spring out of Nevada's Constitution, it was in Nevada's enabling Act by Congress. At the time Nevada's Attorney General said, we welcome this new "State boundary," that same year the United States was surveying Nevada's northern boundary. So we had to get up there, we had to get up on the Oblique. So when they said fully enclosed, we had hoped we were getting an enclosed boundary that year, which we did.

QUESTION: Wasn't the understanding that the 43rd was the same as the 120th?

MR. THOMPSON: No, sir, We have argued that Congress has recognized that they were different, because there was actually a survey.

QUESTION: At the time was it recognized they were different?

MR. THOMPSON: Yes, sir, in 1850 Congress recognized there was a difference. There was a House report published and ordered printed by Congress when they established the American primary meridian. That has been argued --

QUESTION: Yes, but what was the eastern boundary -- the eastern boundary of California wasn't the 43rd, it was --

MR. THOMPSON: But California argues that the Congress can change it and take part of Nevada and give it to California.

QUESTION: And the Territory of Nevada was created right up against it.

MR. THOMPSON: The eastern boundary of California but the State was specified at the 43rd Meridian west of Washington.

QUESTION: At least you don't say that the real boundary was contained in the conference report.

MR. THOMPSON: No.

Thank you.

MR. CHIEF JUSTICE BURGER: Thank you, gentlemen, the case is submitted.