LOUISIANA v. MISSISSIPPI
ORAL ARGUMENT OF J. I. PALMER, JR., ESQ., ON BEHALF OF PLAINTIFF
Chief Justice Warren E. Burger: We'll hear arguments first this morning in 86 Original, Louisiana against Mississippi and others.
Mr. Palmer, you may proceed whenever you're ready.
J. I. Palmer Jr: Mr. Chief Justice and may it please the Court:
Louisiana and Mississippi once again disagree about the location of our common boundary in the Mississippi River.
In this litigation we're concerned with about a four-mile stretch of the river which is situated approximately three and a half miles north of the Natchez, Mississippi, bridge.
This case is remarkably similar to the one that you decided in 1966, that being No. 14 Original, in that, while the facts are similar, we also have here an oil well which was drilled in 1972 from the Mississippi side of the river and your decision will in large measure determine, among several issues, in which state this oil well is located.
Mississippi has filed exceptions to the report of the Master in this case and they focused on two basic areas: One is the manner in which the Master analyzed the evidence in the case and fashioned his recommendations to you; and the other is the Master's refusal to draw a specific boundary by geodetic coordinates for the entire area in dispute for the time period in dispute, which is essentially 1972 through 1982.
Now, as the Master's report correctly reflects, Your Honors, Louisiana and Mississippi both recognize that the law of the thalweg controls here.
Your landmark decision of Iowa versus Illinois in 1892 announced the basic law of the case, and in 1906 when you decided Louisiana versus Mississippi in the first instance you told both states that the law of the thalweg controls.
So to that extent we agree on the law.
Of course, the thalweg principle has two basic predicates, one being the principles of accretion and avulsion... excuse me, accretion and erosion... and the other being the principles of avulsion.
Now, the Master on page 4 of his report suggests to you both in the text and in footnote number one that this Court now is involved only with the principles of accretion and erosion as they would apply to the so-called live thalweg of the river in this area.
Unidentified Justice: Counsel, what page is footnote number one on?
J. I. Palmer Jr: Page 4, Mr. Justice Rehnquist.
You'll see that the Master asserts in that footnote his presumption that all parties agree that only the live thalweg is at issue here and that, he says, that the sole evidence before this Court relates to that live thalweg.
We say that is a rather bold and erroneous statement of what's in the record before you.
You'll find, first of all, that in Louisiana's complaint, Your Honors, she alleges that the boundary that we're arguing about here was fixed by the law of avulsion as a result of the 1933 Corps of Engineers cut-off of Giles Bend, which is just to the south and constitutes the southern half of this boundary.
Unidentified Justice: Well, that's not inconsistent with the thalweg being live, is it?
J. I. Palmer Jr: Your Honor, we say to the Court that the thalweg or the boundary in this case consists in the upper part of the live thalweg and in the lower part of the so-called dead thalweg in the Giles Bend Cut-Off.
The state boundary must be continuous, and in this particular location, Your Honor, the thalweg proceeds on its live course until it hits the upper terminus of the dead thalweg which was caused by the Corps of Engineers cutoff.
And that's one of the key contentions of Mississippi here, is that Louisiana not only asserted that the law of avulsion is involved here, but both states throughout trial introduced ample evidence to show the location of the old dead thalweg and also how that has been affected by the westwardly movement of the river.
I would call your attention, Your Honor, to the fact that, in addition to the assertions of both states in the pleadings, the very second exhibit which was introduced at trial, which was Joint Exhibit No. 1, is a map depicting several features in 1971.
The surface location of the well on the Mississippi side of the river, the bottom location, and the specific coordinates and position of the 1964 dead thalweg is shown on that very exhibit and described by metes and bounds coordinates.
Additionally, several exhibits introduced by Louisiana at trial show that 1964 dead thalweg.
Now, in questioning by the Master during the course of the trial, the witness at that time said that for the purposes of that present testimony that depiction of the '64 dead thalweg was not then relevant.
But counsel for Louisiana was asked about those drawings; he said that they weren't relevant then, but might become so later.
Unidentified Justice: Well, Mr. Palmer, on reading footnote one of the Master's report to which you refer, he says:
"I take the position of all parties to be that the location of the Louisiana-Mississippi boundary relative to the bottom hole location of the well must be determined by reference to the live thalweg. "
Now, is that an incorrect statement in your view?
J. I. Palmer Jr: Your Honor, the implication or the suggestion of the statement is that all we are concerned about is the location of the boundary with respect to that well, and that we say is the fundamental problem here.
We're concerned about the location of the boundary throughout the area in dispute.
Unidentified Justice: Okay.
But is that a correct statement if you don't draw the implication from it that you do, that with respect to the location of the oil well that it's the live thalweg that is going to govern?
J. I. Palmer Jr: Your Honor, a latitude line drawn through the bottom hole location in an east-west direction would intersect that portion of this boundary which is live.
It would not intersect that portion of the boundary which is part of the dead thalweg.
So to that extent that is a correct statement.
The problem we have, Your Honor, is the suggestion of the footnote, which is consistent with the Master's report to you, that all he wants to do is look at that one point on the boundary.
And we say no, because, as I will mention in a moment, the ownership of this well is but one of the results of this case.
Unidentified Justice: May I ask, counsel, what is a bottom hole?
Is there a top hole?
J. I. Palmer Jr: --Yes, sir, and that top hole is located in the State of Mississippi on the lands of our Co-Defendants, the Dille family.
The oil well was drilled deviationally, in an angular fashion, under the river.
Unidentified Justice: Sideways?
J. I. Palmer Jr: Yes, sir.
So the bottom hole location is where the plug is at the bottom.
So Your Honors, to the extent that--
Unidentified Justice: What are the concerns other than the well?
I take it that you say the period that you're concerned with ends in 1982, and to the extent the thalweg is live, if you fix the boundary at the end of the period in '82, it would no longer be the boundary anyway, would it?
J. I. Palmer Jr: --It would not be the boundary after 1982.
Unidentified Justice: Tell me, what are your concerns other than the location of the well for the period between '70-whatever it is and '82?
J. I. Palmer Jr: Your Honor, there are several consequences of this case in addition to--
Unidentified Justice: That's what I'm asking you.
J. I. Palmer Jr: --the oil well ownership.
First of all, as we have said, both states have asked that the boundary be drawn, and here are the reasons that we say it's extremely important here.
First of all, Louisiana through its own exhibits in evidence has shown that their recommended boundary falls well to the west of the 1964 dead thalweg.
Now, that taken to be true, Louisiana herself has proved that she has lost land in that time period and Mississippi has gained land in that time period.
Therefore, Mississippi has acquired additional lands over which to assess ad valorem taxes, we have additional lands to exert our police jurisdiction over.
Louisiana conversely, having lost some land, has those drilling units, one of which surrounds this oil well, diminished in scope.
And if we sit here and let Louisiana continue to claim out to a dead thalweg which she herself proves doesn't exist any more, you're talking about giving a state more land than even she has said she's entitled to.
Unidentified Justice: Well, I know, but setting the boundary at the end of '82 wouldn't settle your dispute, would it, because the thalweg isn't there any more.
J. I. Palmer Jr: It's not there, Your Honor.
But let me point out--
Unidentified Justice: The boundary has moved.
I don't know, which way has it moved?
Do you know which way, how it's moved since '82?
J. I. Palmer Jr: --I don't, and that would only be determined through the addition of more testimony.
Let me point out something, though, Your Honor.
The Master in his suggestions to you as a basis for not drawing that line used your precedent, the old ICC case back in 1911 or thereabouts.
Unidentified Justice: Well, I'm still interested in your reasons for wanting the... all of your reasons for wanting the boundary as of '82 fixed all up and down for that four-mile run.
J. I. Palmer Jr: Okay.
There are two more: One, this Court has in the past, and certainly will in the future probably, entertained petitions for the entry of a supplemental decree.
In the event that the evidence shows in the future that the boundary has moved radically to the west, then of course Mississippi would come before you and ask for the entry of a supplemental decree.
The case would be reopened, additional facts would be presented.
Then you would have another determination as of the date of the conclusion of that supplemental hearing.
Now, Your Honor, if we're not going to draw a boundary here, then at that later time we start all over again.
Unidentified Justice: So long as the thalweg is live, you can't draw a metes and bounds boundary.
J. I. Palmer Jr: Your Honor, you can draw the metes and bounds boundary for every year for which you have evidence of its location after--
Unidentified Justice: Well, what's magic about a calendar year?
J. I. Palmer Jr: --It's magic in the sense that we're determining not only the rights between the states, but you must remember there are private Defendants in this litigation, and to that extent in the lower court, in the action that precipitated this very lawsuit, the Dille family has complained of possible drainage of the oil from their land.
Now, that's their private concern.
That's not the concern of the state.
But Your Honors, unless they can prove where that boundary is in this time frame, they cannot make their drainage case.
So they're sitting there, if this Court does not draw the boundary, with a pending case before a lower federal court and they're being told: Okay, prove your boundary... prove your drainage case.
They can't prove it.
Unidentified Justice: Well, can't they get a witness to testify as to which side of the property they're claiming the thalweg is then running or is running at the relevant date for that case?
J. I. Palmer Jr: That is still basically a boundary decision, Your Honor, and Louisiana got this case removed to here because they say this is the only forum for determining that boundary.
Unidentified Justice: But no one doubts the boundary is the live thalweg, do they?
J. I. Palmer Jr: It is live at that one point, Your Honor.
Unidentified Justice: Which is the point at which the Dille family is concerned, I would take it.
J. I. Palmer Jr: Well, that is the one point on their property boundary, Your Honor.
But their boundary is commensurate with the Louisiana boundary for the entirety of their ownership.
So they get one point on their boundary line, but the rest of their boundary is left indeterminate.
What I'm suggesting to you basically as to that question, that if this Court does not draw that boundary and the private Defendants are remanded to the lower court to prove their drainage case and they can't do it, you have the classic situation like the ICC case.
Unidentified Justice: Well, why can't they do it?
Why can't they do it?
J. I. Palmer Jr: Because they attempted to do that and Louisiana said: No, you can't do it at the lower federal level.
Unidentified Justice: Louisiana can't keep them from going into the lower federal court, can they?
J. I. Palmer Jr: They did.
Unidentified Justice: Well, I know you're here.
But if we don't determine the dispute... what if we had turned down jurisdiction?
What if we hadn't permitted Louisiana to file?
What would they... just on the grounds that the only real issue involved was who owned that oil well and that was a private matter, essentially.
J. I. Palmer Jr: Which is exactly what we argued in our motion in opposition.
Unidentified Justice: That may be, but suppose we had turned it down?
J. I. Palmer Jr: They would have had to go forward or be out of court.
Unidentified Justice: Well, they certainly could have gone forward with proof.
J. I. Palmer Jr: Yes, sir.
Unidentified Justice: Well--
J. I. Palmer Jr: Of course, this Court had that very same question posed to you in No. 92 Original, Arkansas versus Mississippi, when Arkansas was on the courthouse doorsteps going to trial and backed up and said: Wait a minute, that's not the right forum to determine a boundary dispute.
And you entertained their motion for leave to file.
They did file suit.
The Master suggests that if this oil well weren't involved in this suit you wouldn't have let anybody do it.
But it's already happened in No. 92.
Unidentified Justice: --Well, if we reject your exceptions to the Master's report and accept his report, I take it the location of the bottom hole of this well is fixed, has been determined.
But it certainly wouldn't determine the boundary the rest of the way, and I don't know... I don't know what barrier there would be to the private owners in a lower federal court to have that boundary litigated--
J. I. Palmer Jr: Your Honor, the only problem--
Unidentified Justice: --if they really have a live question about it.
J. I. Palmer Jr: --Your Honor, the only problem with that is that the owner on the Mississippi side is the Dille family.
The owner on the Louisiana side is the State of Louisiana.
Now, if they will concede to try their boundary case in a lower federal court against a citizen of another state, okay.
But they wouldn't do that here, so they removed it to this Court.
This is an unusual case in which the state owns riparian lands.
Unidentified Justice: There isn't exclusive jurisdiction, is there, in this Court just because a state is a party?
J. I. Palmer Jr: No, sir, and we suggested to you originally not to grant leave for that very reason.
Unidentified Justice: I understand, I understand that, I understand that.
J. I. Palmer Jr: Your Honor, we simply say that, since the Court has taken the case, we've tried it, the evidence is before the Court, the Master has labored diligently with several thousand words to describe one picture, why not just have him put his line on those hydrographs?
A suggestion has been made by the Master even before today that, as in the last Louisiana case, No. 14, that someone should be able to just read the report and determine from his reading where the boundary is.
Unfortunately, in that latter case, Your Honors, if you'll refer to the Master's report you'll see there were no hydrographs in that case for any of the years in dispute.
Unidentified Justice: Well, if the thalweg is migrating, you can't get an accurate description of the boundary from the time it takes the surveyors to go out and see where the thalweg is on January 15th until the time they can come and testify before the Master on February 1st.
The boundary may be different between January 15th and February 1st.
J. I. Palmer Jr: Correct.
Your Honor, we are arguing about '72 to '82, not anything after '82.
We're saying that there are material consequences of this determination for that time period, regardless of what happens--
Unidentified Justice: Are you suggesting that there was only one metes and bounds description of the boundary between 1972 and 1982?
J. I. Palmer Jr: --We're suggesting that there is a metes and bounds description for every year for which there is proof upon which a boundary could be determined.
Unidentified Justice: There may be a metes and bounds description for every week that would vary from week to week.
Do you want the Master to go week by week at it over ten years?
J. I. Palmer Jr: Your Honor, we have asked that you do what the Master did in No. 14 and simply have him draw it for every year.
That was done there.
Your own decree recites the metes and bounds description of the state boundary for about a ten-year period at the end of the case.
So to that extent we have the same thing, and yet the Court is being asked to depart from all of that and to do what you've never done before and have a boundary case in which you don't determine a boundary, you just determine one point on it and say, well, this is... Louisiana owns the oil well, forget about it and go home.
Now, it would be like in 92 Original, Arkansas versus Mississippi, just telling Arkansas: Well, you don't own this little piece of land, but we're not going to draw the boundary, so forget about it.
We say there are other consequences besides that.
Of course, we have spent the bulk of those exceptions, Your Honors, as you have seen, developing our factual contentions.
Unidentified Justice: Well, what if the Master, to get back to that, gave you a metes and bounds description of the dead part of the thalweg and then, with respect to the part of the boundary that was covered by a live thalweg, simply described what a thalweg is, the deepest point of the channel and so forth, and gave no metes and bounds.
Would that satisfy you?
J. I. Palmer Jr: Your Honor, in Nebraska versus Iowa this Court plainly said that when you're talking about a boundary and the law of avulsion, which is what you're talking about with that dead thalweg, that that thalweg remains fixed unless and until the river comes back and reoccupies it.
And we've shown that this has happened in this case.
Unidentified Justice: Okay.
But I say if the Master had given you a metes and bounds description of the dead part of the thalweg and then had gone on to say that above that, if it is above that, the boundary is the live thalweg from point so and so, whatever it is, latitude to point so and so latitude, so that you could figure out what part of the river was covered by the live thalweg, would that satisfy you?
J. I. Palmer Jr: Well, it would be better than what's recommended, to the extent that we at least have a portrayal of the southern part of those drilling units on the Louisiana side.
But you then still leave a floating line north of that point, Your Honor.
If the Master is going to determine the point of intersection of the dead and the live thalwegs and another point on the live boundary, we still don't see the great difficulty in his going ahead and just simply drawing his line that he described to you in the book and having some competent surveyor go pick the coordinates off of it.
The difficulty is just not there.
We just don't understand--
Unidentified Justice: Well, but the utility isn't there, either, because the line could change next week.
J. I. Palmer Jr: --It could.
I go back again to what this Court has done before in these types of cases in which you have a completed time span for the controversy.
You still have not refused to give the states the portrayal of the boundary that was in issue.
Unidentified Justice: Well, what dispute?
Just tell me more concretely, what dispute is there between you and the State of Louisiana any time from '72 to '82 about anything except the location of the bottom hole of this well?
Just give me a concrete example, what kind of a claim is there between the two states?
J. I. Palmer Jr: There is no claim as between the two states except as they bear directly on taxation of those--
Unidentified Justice: Well, just give me an example.
Are you trying to tax something that Louisiana says you can't during those ten years?
J. I. Palmer Jr: --There's been no claim made of that.
Unidentified Justice: Well, what other kind of a concrete claim is there between you and Louisiana during those ten years?
Just give me a concrete example.
Or what could be a dispute between you and Louisiana during those ten years?
J. I. Palmer Jr: Okay.
I think the basic contention would be, Your Honor, where the jurisdictions of the two states go--
Unidentified Justice: Well, what difference does it make for those ten years?
J. I. Palmer Jr: --Well, as I mentioned a minute ago, it certainly would affect our exercise of police power.
Unidentified Justice: Well, all that's all gone now.
You're not going to be exercising any police power now relating to those ten years.
J. I. Palmer Jr: --Well, Your Honor, if the State of Mississippi were to do today what it has not done and establish drilling units on the Mississippi side of that boundary, then where do we draw the line?
Do we draw it consistent with the Louisiana 1964 line or do we say, no, the Master describes a certain indefinite line out in the river, so we're going to use that as the western terminus of our drilling units?
You're going to have an obvious overlap, because there will be no fixing of the boundary.
All those leases which are attached to the complaint show the--
Unidentified Justice: Well, you keep saying "if".
Have you done something like that?
J. I. Palmer Jr: --No, Your Honor.
Unidentified Justice: I think if you had come in to the Special Master and said, look, there's something else besides this well that we're in dispute on, we're about to establish these drilling units here and Louisiana says that they're on their side, I'm sure he would have solved that concrete dispute.
You haven't told me yet what kind of a concrete dispute there is between you and Louisiana, other than this particular well.
J. I. Palmer Jr: Your Honor, my point has been that in the past this Court has not required some major controversy over and beyond the states' sovereignty over these lands as a predicate for granting leave to determine a boundary.
You certainly haven't done it in the past, and after this case was filed again you didn't require that in 92.
Unidentified Justice: Well, that may be so.
But you think just because two states want their boundary determined as of any particular... say that they come in and say, we just want our boundary fixed as of the time the evidence is closed, as of that very time; that you have the sovereign right to have that boundary fixed?
J. I. Palmer Jr: That certainly has--
Unidentified Justice: No matter what.
J. I. Palmer Jr: --That certainly has been what you have done in the past, Your Honor.
Unidentified Justice: Well, that may be true.
J. I. Palmer Jr: And if the Court wants to depart from that, so be it.
Unidentified Justice: But you would say really that you can have a Special Master and use this Court's original jurisdiction basically in the capacity of a surveyor; that both parties can agree that the thalweg of the Mississippi River is the boundary, there's no argument about accretion versus avulsion or that, you know, that there was an oxbow cutoff or something like that, but that nonetheless the Master is employed simply to plot the position of a live thalweg as of say January 15th, 1982, around the Natchez Bridge?
Now, I'm not suggesting that's a ridiculous condition.
Maybe you're right, that we've done it in the past.
J. I. Palmer Jr: I think the Court is going to require that the states with some definition describe this disputed area in terms of miles or land size or whatever.
But I'm just saying that in the past there has been no more predicate other than to say, we don't agree where our boundary is, we want this Court to use its original jurisdiction to fix it, and let the chips fall where they may.
That's what has been done before.
We're asking you to do that now, and yet we're getting into a flip-flop situation where the Master is saying: Forget about all that; we'll just tell you where the bottom hole is and you don't worry about the location of your boundary.
We say the consequences are far too great just to go off on that, particularly when you've got it all done before you, the evidence is all in.
And on the form of the evidence, I'm not going to belabor in great detail what we have set out in detail in our report to you.
Unidentified Justice: Mr. Palmer, just as a practical matter, how much... forgetting avulsion for the moment, because then a boundary can really change rapidly.
But if it's just a matter of erosion and accretion, in a year how much, over those ten years how much in your judgment did the river ever change in a year?
At any point, how much east and west did the boundary change in a year?
J. I. Palmer Jr: As I recall, from bits of the testimony, Your Honor, in one or two years the Mississippi witness contended the boundary moved as much as 200 feet or thereabouts.
I think the record will substantiate that there was movement of at least that much.
Unidentified Justice: But that's probably the maximum that it's ever moved, that it's moved at any point in any year?
J. I. Palmer Jr: I wouldn't say that that's the maximum.
I know that historically there have been movements of the banks of over 2,000 feet a year.
That's from my personal knowledge.
And that was testified to in this case about the massive movement--
Unidentified Justice: That may not have much to do with the thalweg?
J. I. Palmer Jr: --It may well not, but to suspect that that time of movement of the top bank would cause no movement of the thalweg we think is unreasonable.
Unidentified Justice: Yes.
J. I. Palmer Jr: But to the point of the basic evidentiary problems here, the thalweg doctrine is based on navigation.
The rule there is where does downstream traffic go.
We're talking about quarter mile long tows, not rowboats and sailboats, and that's why I think the Master's conclusions are erroneous in light of the evidence, and particularly in light of the experience of the witnesses that testified.
Chief Justice Warren E. Burger: Mr. Kimmel.
ORAL ARGUMENT OF DAVID C. KIMMEL, ESQ. ON BEHALF OF DEFENDANTS
David C. Kimmel: Mr. Chief Justice and may it please the Court:
Louisiana and Mississippi have been litigating this case some three years and we've agreed on a lot that has transpired in this case.
The two states as well as Mr. Dille, the riparian landowner, have agreed on the bottom hole location.
We all know where that is on a particular map.
We have agreed on the law that applies to this particular case.
And the two states as well as Mr. Dille have also agreed on most of the documents that have been introduced.
Hydrographic surveys are identical for both states.
The only evidentiary issue is the interpretation of those particular documents by the experts.
Unidentified Justice: In terms of where the thalweg is.
David C. Kimmel: --In terms of where the thalweg is, the live thalweg.
And that was the week-long case and the basis of it.
Mississippi's witness, Mr. Austin Smith, his analysis of those particular documents was completely disregarded by the Special Master, and there are various reasons for that.
Unidentified Justice: You mean rejected.
David C. Kimmel: Rejected, Your Honor, rejected.
Unidentified Justice: I mean, he didn't--
David C. Kimmel: He considered them.
Unidentified Justice: --He considered them.
David C. Kimmel: That's right.
Mr. Austin Smith did not use or utilize any navigational aids whatsoever, including the lights that a mariner would use to negotiate this particular bend.
Mr. Austin Smith did not utilize the buoys that are placed in the river in this particular point by the Coast Guard.
As a matter of fact, in 1976 he would have his particular vessel running over the buoys, which was brought out in the Special Master's report.
Mr. Smith disregarded a developing point bar... and a point bar is a land mass underneath the water which makes a very shallow area... on the Louisiana side directly in proximity to the bottom hole location.
This would tend to throw the river traffic over toward Mississippi, which is what the Special Master found.
Unidentified Justice: Mr. Kimmel, there is discussion in the testimony about breaking down the tow.
Would you tell us what that term means--
David C. Kimmel: Yes, Your Honor.
Unidentified Justice: --and how it's relevant?
David C. Kimmel: Breaking down a tow as you come through a bend means that you are to point your tow downstream.
As you come through the bend, a mariner will see lights, and just above the bottom hole is the Port Gibson light.
That is referred to in the trade as a passing light.
We introduced, Louisiana did, into the record channel reports which were put out by the U.S. Coast Guard every week from soundings taken every day, a recommended navigation course through this bend.
What did the channel reports say?
When you hit that passing light it will be on your right; maintain 200 yards off of that passing light.
That is the recommended course that the U.S. Coast Guard tells the mariners to travel.
Unidentified Justice: Does the Coast Guard speak in terms of right and left on those occasions?
David C. Kimmel: No.
I'm afraid that's the layman in me, Your Honor, saying that.
It's kept on the starboard.
Once past that particular light, the Coast Guard directs the mariners to shoot for Giles Bend Cut-Off light, which is on the Mississippi side, and that is referred to in the trade as a crossing light.
What does the Coast Guard tell the mariner to do at that point?
Position himself in some years 200 years, in some years 300 yards, off of that particular light.
Once there, he is to break down and go towards the next light, which will then be on the Louisiana side, and that is the Cowpen Island light.
He uses that as a passing light and he continues down the river.
That is the Coast Guard recommended sailing line through this particular bend.
And "breaking down", Your Honor, means to point your tow downstream.
Now, Mr. Smith disregarded these channel reports.
They were not introduced.
He had a problem with locking in, and once his particular thalweg was locked in I'm assuming it would run up on the shore and he would still say that's the way it would have to go.
It was surprising the way he treated the channel buoys, especially in '76, where he would have his vessel run over these buoys.
He says they were off course, but it doesn't make any sense only because they would not be charted off course, and they show up on the hydrographic surveys.
Now, as far as Louisiana's witnesses are concerned, Mr. Hatley Harrison used his analysis of the hydrographic surveys, he used his analysis of the channel reports, he used his analysis of the flood control and navigation map number 38, which is put out by the Mississippi River Commission.
And he took particular note of the navigational aids in order to determine his particular thalweg, which was accepted by the Special Master.
Unidentified Justice: Now, Mr. Kimmel, you say "his particular thalweg".
Do you think the evidence is in the record sufficient to actually determine the boundary up and down the river for each year?
David C. Kimmel: I do, Your Honor.
As far as Mr. Harrison's exhibits in the record, you could actually determine a boundary.
Unidentified Justice: For each year?
David C. Kimmel: --For each year.
Unidentified Justice: Not only '82, but for each year.
David C. Kimmel: For '72 to '82.
But Your Honor, let me address that for just a second.
My point is why.
This area is a live thalweg.
You put a line on a piece of paper today; tomorrow it's gone.
We can go back to 1972, sure, and draw a particular boundary.
The day after, that 1972 boundary that's been drawn by this Court is gone.
Unidentified Justice: But if the thalweg's been moving west during these ten years, or at least if in part of this stretch it's been moving west, Louisiana's been losing land to Mississippi, and you may not know how much.
If you set the boundary in '82, June 1, '82, the thalweg probably isn't there any more.
But if it's been moving west, you've been losing some more land.
David C. Kimmel: That's quite possible, Your Honor.
Unidentified Justice: But at least you would know, if you fixed the boundary in '82, at least you'd know as of that date what land Mississippi could tax as compared to Louisiana.
David C. Kimmel: Yes, I would have to agree with that, Your Honor.
Unidentified Justice: If so, why shouldn't... I would think you can never keep up with this problem, but at least you can chase it.
David C. Kimmel: Louisiana's been chasing these particular problems for many years, Your Honor.
Unidentified Justice: So has Mississippi.
David C. Kimmel: --So has Mississippi.
And we find ourselves in the position of really, if the Special Master is required by the Court to put a pencil to the paper and draw a boundary, Louisiana really has no objection to that.
We understand what the problem is when one tries to draw a boundary which is completely ambulatory.
We understand that problem.
Most of the cases, if not all of them, deal with the dead thalweg issue, where you can set a boundary on a piece of paper and it's going to stay.
In this case we don't have that at all for any year and we won't have it for the future, because that boundary is going to move.
But I would have to agree with Your Honor that in 1982 if we actually were to draw a boundary we would then know approximately--
Unidentified Justice: Well, if you drew it you'd probably know, at least on some stretches of the river, there'd be some land, there'd be some land in Mississippi that wasn't there in 1960.
David C. Kimmel: --Yes, sir, that's possibly correct.
Unidentified Justice: Well, you know it's correct.
David C. Kimmel: Yes.
Unidentified Justice: And I don't know... I would think it would be... it might be helpful.
David C. Kimmel: The only real issue in this case... and I doubt whether suit would have ever been filed had it not been for the ownership of this particular bottom hole of this well.
In this particular area Mississippi and Louisiana have gotten along fine.
We haven't had any boundary problems.
This suit came about... the genesis of this suit was ownership.
Unidentified Justice: Just because it hasn't made much difference where the boundary is.
David C. Kimmel: That's right.
But the ownership of the well is the underlying issue and, as the Special Master determined, since he finds that the thalweg has not moved to such an extent to place the well in Mississippi, in his opinion it's a vain and useless act to go back and draw the boundaries.
Unidentified Justice: But that's treating this as if it were a quiet title action and you simply rule, in this case rule for the Plaintiff or rule for the Defendant and, you know, say that's all I need to decide, because you're talking about who owns this land and I've now decided that, whereas perhaps the concept of original jurisdiction is a broader thing, that you ought to do something by way of deciding the actual location of the boundary line.
David C. Kimmel: To which we agree, Your Honor.
Louisiana again finds itself in a position of, if we actually have a boundary drawn on a piece of paper, we have no literal objection to that.
Frankly, when we originally filed suit we sued as a boundary action.
Unidentified Justice: Yes, you certainly did.
You're the one who wanted the boundary.
David C. Kimmel: Understanding, of course, that the live thalweg, the problems incidental in establishing--
Unidentified Justice: Well, Mr. Kimmel, would there have to be more evidence taken to draw a boundary?
David C. Kimmel: --No, sir.
No, sir, absolutely not.
Unidentified Justice: And what kind of a skill would it take to look at these hydrographs and draw that boundary?
David C. Kimmel: It would just take an engineer or a surveyor in plotting a particular line on a map.
Unidentified Justice: Depending on what expert you believed.
David C. Kimmel: That's right, or depending--
Unidentified Justice: If the Master says, look, believe this expert and don't believe that one--
David C. Kimmel: --That's right.
Unidentified Justice: --he could draw it?
David C. Kimmel: That's right.
It can be drawn.
It can be done and it can be accomplished.
Unidentified Justice: Is your typical hydrograph in evidence dated?
David C. Kimmel: Yes, sir, the hydrographic surveys are dated, yes, sir, for each individual year.
Unidentified Justice: So then the Master could presumably, taking the relevant sets of hydrographic... of hydrographs of a given date, the ones which he credited, could as of that date determine what the metes and bounds of the thalweg was?
David C. Kimmel: Yes, sir, that's correct, that is correct.
Unidentified Justice: Well, the hydrographs are the same for both sides, aren't they?
David C. Kimmel: Yes, sir, the hydrographs--
Unidentified Justice: It's just a question of an expert interpretation of those hydrographs, and the Master has indicated which expert he believes.
David C. Kimmel: --Experts, yes, sir.
Unidentified Justice: Experts.
David C. Kimmel: Yes.
Unidentified Justice: He believed yours.
David C. Kimmel: Right, that's correct.
Unidentified Justice: So I guess you wouldn't object to having it drawn.
David C. Kimmel: We're not putting up a strong argument over that.
Unidentified Justice: Mr. Kimmel, does the live thalweg have to connect with the dead thalweg at each end?
David C. Kimmel: In my opinion it does not, Your Honor.
Unidentified Justice: Do both parties agree, then, on that--
David C. Kimmel: No, ma'am.
Unidentified Justice: --or is that an outstanding legal issue?
David C. Kimmel: If there's a legal issue involved in that, I don't know what it is, because the boundary... in my opinion the boundary does not have to connect.
Mississippi asserts that the boundary needs to be continuous, but if that were the case then this live thalweg would have to go all the way up to the beginning of the state of Mississippi and Louisiana in the river.
We don't have a continuous boundary with Mississippi in the river that's ever been determined.
Unidentified Justice: Well then, maybe you're wrong in thinking that the lower thalweg is dead.
David C. Kimmel: No, sir, the lower thalweg is dead as a result of a cutoff.
This is a cutoff, Your Honor, and what has happened is the cutoff area dries up and forms a dead thalweg.
It can be determined by engineers, and once that's been done that is set.
Unidentified Justice: Well, if the Act admitting Mississippi to the Union provides that the boundary shall be such and such, or the Act admitting Louisiana, I dare say neither of those acts contemplated an interrupted boundary.
David C. Kimmel: No, sir, they did not contemplate--
Unidentified Justice: Then how could it subsequently have become interrupted, given the law of avulsion and accretion?
David C. Kimmel: --It is not technically interrupted, Your Honor.
It's just that it has not been determined.
As I mentioned, Louisiana and Mississippi have a common boundary, the main navigational channel, throughout the entire stretch of the Mississippi River.
But it has not been determined.
The two states have talked about this for 50 years and we've tried to get together to determine a boundary and put it to a piece of paper, and it just can't be done.
Unidentified Justice: But a minute ago you said you thought the boundary didn't have to be continuous.
David C. Kimmel: It does not.
Unidentified Justice: It can't be if--
David C. Kimmel: Well, it does not have to be determined.
It need to be continuous.
It needs to be continuous in the sense that you can't have a piece of boundary that has disappeared.
Unidentified Justice: --No.
David C. Kimmel: That's true.
But it does not need to be determined.
In this case that issue, the connection of that boundary to the dead thalweg, is really irrelevant because all that needs to be determined is the boundary in the vicinity of the well.
Unidentified Justice: Well, is that all that Louisiana prayed for in its complaint?
David C. Kimmel: Yes, sir.
We asked for a boundary to be determined in that particular area, disputed area.
We did also include an allegation concerning the 1964 thalweg, and the reason we did that was because when we filed the suit we were not sure whether or not that 1964 dead thalweg would be an issue in the case.
As it turned cut through discovery and depositions, that particular thalweg was not an issue in the case and the entire case can be disposed of by the determination of a live boundary in the vicinity of the well.
Unidentified Justice: Well, Mr. Kimmel, isn't discontinuous boundary, isn't that problem just inherent in the concept of avulsion on the one hand--
David C. Kimmel: Yes, Your Honor, it is.
Unidentified Justice: --and erosion and accretion on the other?
David C. Kimmel: Yes, sir.
Unidentified Justice: Because when there's an avulsion, if you say, if the law is the line is fixed, then the river's running someplace else.
David C. Kimmel: Yes, sir, that's correct.
The river has sinuosity throughout this particular area that has driven both states crazy at times as it snakes around the Delta.
That's a problem, that's correct, sir.
Unidentified Justice: Well, is there enough evidence that would permit the Master without taking any more to connect the live thalweg with the dead?
David C. Kimmel: No, Your Honor, there is not.
There is not.
Unidentified Justice: There is only enough evidence to permit the drawing of the thalweg as of given dates in time within a range of the live thalweg?
David C. Kimmel: Yes, Your Honor, that's correct.
And Louisiana submits that's the issue in the case.
The connection to the dead thalweg is not an issue in the case, is our submission.
Unidentified Justice: The states must have had some experience with this in the past, on avulsions and accretions, and where the dead thalweg ends and the live thalweg begins.
I would always... I would think that would be not a new problem.
David C. Kimmel: It's not... Your Honor, it is not a new problem, especially for Louisiana.
Now, I don't know, Mississippi law may be different than Louisiana's--
Unidentified Justice: Mr. Kimmel go ahead and finish your answer.
David C. Kimmel: --But it is not a new problem and the state is familiar with the dead thalweg issues.
Our only point is, in this particular case for the Court to dispose of this case and accept the Special Master's report the connection of the live thalweg to the dead thalweg is totally irrelevant in this case.
Unidentified Justice: Well, Mr. Kimmel, does the concept of a discontinuous boundary, which apparently makes sense to my brother Justice White, make any sense to you?
David C. Kimmel: The only way it makes sense, Your Honor, is that in order... to connect to the 1964 thalweg is just not necessary.
All this Court needs to do is to determine the live thalweg in the vicinity of that particular well.
There is no reason... the states of Louisiana and Mississippi are not fighting over any connection between the live thalweg and the dead thalweg of this river.
There was no real testimony taken in that regard.
And all the two states tried for a week was the live thalweg issue and the bottom hole, and that basically is Louisiana's contentions, that a boundary would be a vain and useless thing for the Court to draw, and also that the Special Master's report, his acceptance of Hatley Harrison's testimony, as well as Mr. Leo Odom's testimony and his determination that the bottom hole of this well has remained in Louisiana for all the years in dispute, be accepted by this Court.
Chief Justice Warren E. Burger: Do you have anything further, Mr. Palmer?
REBUTTAL ARGUMENT OF J.I. PALMER, JR., ESQ. ON BEHALF OF PLAINTIFF
J. I. Palmer Jr: Yes, Your Honor, several points that the Court very perceptively raised just a moment ago.
First of all, regarding the connection between the live and the dead thalweg.
I addressed that initially and pointed out to the Court, in response to your question, Justice O'Connor, there is indeed ample evidence in this record of where that dead thalweg is.
It is described by metes and bounds coordinates on the very second exhibit that was even introduced at trial.
Mr. Austin Smith, the expert for Mississippi, described in detail how a continuous state boundary, which must not have a hiatus, is connected between live and dead thalwegs, and the exhibits are there for this Court to use.
Unidentified Justice: But the connection between the live and the dead I would think in many occasions couldn't possibly be completely in the river.
J. I. Palmer Jr: Your Honor, the upper terminus of a dead thalweg is fixed at a point in time, generally, according to the rules of this Court, when there is no flow in that dead channel.
At that point it's fixed geodetically.
Unidentified Justice: Right.
J. I. Palmer Jr: Now, there is an accepted engineering technique for connecting that upper terminus to the migrating live terminus.
That's fully discussed in the record by Mr. Smith.
You draw a perpendicular line from the live thalweg to the upper terminus of the dead.
Unidentified Justice: Right.
J. I. Palmer Jr: That was done here in this case.
It's even shown in the Louisiana--
Unidentified Justice: That's by your witness?
J. I. Palmer Jr: --It was discussed by our witness.
But Your Honor, the very exhibits to Louisiana's complaint show the pictorial of their drilling units, and they're key to the dead thalweg.
It's there in black and white.
Unidentified Justice: Unless you've got your dead thalweg in a concrete-lined canal, the point at which the live thalweg goes into the dead thalweg is going to migrate, too, is it not?
J. I. Palmer Jr: The point of connection between the live and the dead is going to be fixed.
But the connection between the live thalweg and that perpendicular line connecting it to the dead will migrate, Your Honor.
Unidentified Justice: Yes.
J. I. Palmer Jr: That's the way it's done.
Unidentified Justice: And so part of that perpendicular line is going to be... may very well be going over dry land.
J. I. Palmer Jr: It could, but that would be highly unlikely, Your Honor.
Unidentified Justice: May I ask you one question?
J. I. Palmer Jr: --Yes, Your Honor.
Unidentified Justice: Your client, of course, was the Defendant in the case.
J. I. Palmer Jr: I beg your pardon?
Unidentified Justice: Your client, the State of Mississippi, was the Defendant in the case.
J. I. Palmer Jr: Yes, sir.
Unidentified Justice: Did you file any kind of a counterclaim or prayer for any kind of relief, affirmative relief?
J. I. Palmer Jr: We did not, Your Honor.
We set up our defenses as affirmative defenses and did not file a counterclaim in this case, as we did in No. 92.
Unidentified Justice: Did your affirmative defenses pray for a declaration of the boundary?
J. I. Palmer Jr: Yes, sir.
Now, the contentions of our expert witness, we've set those out in our exceptions and the bottom line is this: We put on a witness who has now spent over 50 years of work in that river, over 40 of which was in the federal service with the U.S. Corps of Engineers, 10 of which was as Chief of the Navigation and Mapping Branch of the Corps of Engineers Mississippi River Commission.
To assert in the face of a 450-page record... and I won't cite all the times he did discuss it... that he didn't use navigational aids is ludicrous.
And second, if you'll just look at the October 1976 and the May 1977 hydrographs, you'll see why the line was deliberately drawn through some off-station buoys.
The '77 hydrograph shows the proper location of those buoys and Louisiana's own expert witness drew his so-called geological thalweg, which is through the deepest part of the channels, right through those same buoys.
You don't put a shallow water buoy in deep water.
They're off station and the witness testified to that.
Mr. Justice Rehnquist, you're absolutely right, if this Court does not draw a boundary you have no more than a quiet title action.
Unidentified Justice: Well, let me ask you.
If you're connecting, say, the north end of the dead thalweg here with the southern end of the live thalweg in the area in dispute, you say the lines are there, but connecting those two points would not be in the current live thalweg?
J. I. Palmer Jr: That's correct, because by definition the terminus of the southern end would be the live thalweg.
Unidentified Justice: Exactly.
And it has migrated.
J. I. Palmer Jr: Yes, sir.
Unidentified Justice: And so you have... the boundary line would be traversing a section of the stream that wouldn't be in the live thalweg.
J. I. Palmer Jr: That's correct, and that's why, as was testified to at trial, the accepted technique is to draw the perpendicular line through the live thalweg.
Unidentified Justice: Perpendicular?
J. I. Palmer Jr: Because on equitable principles--
Unidentified Justice: You mean just perpendicular to the banks there or east and west?
J. I. Palmer Jr: --Perpendicular to the live thalweg.
Unidentified Justice: I see.
J. I. Palmer Jr: As Mr. Smith testified--
Unidentified Justice: So if the live thalweg happens to be running, at that point be running east and west, you draw it north and south?
J. I. Palmer Jr: --It depends on where the upper end of the dead thalweg is, but you could, yes, sir.
Unidentified Justice: Okay.
J. I. Palmer Jr: The point is that if you didn't draw it perpendicularly you would be unfairly favoring one state or the other.
Unidentified Justice: Yes.
J. I. Palmer Jr: The standard of review in this case, as the Court well knows, is de novo.
Chief Justice Warren E. Burger: Thank you, gentlemen.
The case is submitted.