Transcript

IN THE SUPREME COURT OF THE UNITED STATES

UNITED STATES, Plaintiff, v. MAINE, ET AL.

No. 35 Orig.

November 26, 1984

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:00 o 'clock a.m.

APPEARANCES:

LOUIS F. CLAIBORNE, ESQ., Deputy Solicitor General, Department of Justice, Washington; on behalf of the plaintiff.

JOHN G. PROUDFIT, ESQ., Assistant Attorney General of New York, New York, New York; on behalf of New York.

J. PETER DOHERTY, ESQ., Special Assistant Attorney General of Rhode Island, Sharon Springs, New York; on behalf of Rhode Island.

PROCEEDINGS

CHIEF JUSTICE BURGER: We will hear arguments first this morning in Number 35 Original, the United States against Maine and others.

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

ORAL ARGUMENT OF LOUIS F. CLAIBORNE, ESQ., ON BEHALF OF THE PLAINTIFF

MR. CLAIBORNE: Mr. Chief Justice, and may it please the Court, this case and the next are original cases in a technical sense. That is to say, they begin and end in this Court on the Court's original docket. But they are original cases in a more colloquial sense as well.

The main ground of decision in each of the cases is, in our view, novel, indeed dangerously so. In both cases, the principal question is whether what nature made an island is in the eye of the law somewhat perversely a peninsula.

In the first of these cases, that question arises in respect of Long Island, which one might think everyone other than lawyers and judges would know is indeed the island that it is called, an island in law as well as in fact.

Why we must debate this seemingly silly question is that the result affects the extent of the submerged lands belonging to Rhode Island and New York as distinguished from the submerged lands of the United States.

That arises because under a venerable doctrine the states, each of them on the coast, own the beds and banks of all inland navigable waters within their boundaries, and by virtue of the Submerged Lands Act of 1953, they likewise own an additional three-mile belt measured from the outer limit of those inland waters.

QUESTION: Does the case also relate to who has jurisdiction over the water or who may regulate traffic on the water, or fishing?

MR. CLAIBORNE: It does not, Justice White. This case is entirely under the Submerged Lands Act, and that Act simply governs the seabed and the resources thereof, the right to extract minerals and the right to take resources, but not fishing, within that zone.

QUESTION: But they are not -- but if Long Island Sound is inland water, it is not international waters then, either.

MR. CLAIBORNE: It would -- As I said, most of Long Island Sound is at all events by common ground inland waterway. That is so in the view of the United States because it is historically --

QUESTION: Yes.

MR. CLAIBORNE: That is so in the view of the two states opposite because --

QUESTION: Well, to the extent it isn't, though, does it affect who has jurisdiction over the navigable waters?

MR. CLAIBORNE: Whether it is inland or whether it is territorial sea of the state it would seem to me has little effect on its jurisdictional powers in that area.

QUESTION: What if it is open sea, though?

MR. CLAIBORNE: If it is open sea, then the state world have no claim to govern other than its own citizens within that zone.

QUESTION: Well, there is some of that involved here, I take it.

MR. CLAIBORNE: And there is in Block Island Sound some of that involved, and indeed this dispute originally arose because of Rhode Island's claim to control pilots bringing both domestic and --

QUESTION: Right. So that is involved to that extent.

MR. CLAIBORNE: It is involved to that extent, though it isn't strictly speaking the bone of contention here.

QUESTION: Mr. Claiborne, on that line of questioning, your brief states that there are international implications, but I don't think they were identified in the brief. What are they, really?

MR. CLAIBORNE: Justice Powell, to the extent that there are -- that this Court can declare, for instance, that all of Block Island Sound is territorial water and not high seas, the sea lanes between Block Island and the Rhode Island mainland on the east and between Block Island and Long Island on the west would be open to -- would not be open sea, and would not be freely navigated by the world community, but only subject to right of innocent passage and otherwise by permission of the coastal states.

And to that extent, to the extent that this Court's decision is viewed because it is an interpretation of international law, the international convention, it would have international radiations.

QUESTION: Well, certainly the -- go ahead.

QUESTION: Would the position of the United States bring international waters closer to the mainland of the United States? It would to some extent in view of your position with respect to Block Island Sound, wouldn't it?

MR. CLAIBORNE: That is so, and that is generally so. It is generally the position of the United States to -- freedom of the high seas.

QUESTION: May I just follow up? What effect would it have on fishing rights, on electronic surveillance by other countries, and on mineral rights internationally?

MR. CLAIBORNE: With respect to the latter two, Justice Powell, I think I am correct in saying that it would have no effect on the fishing rights or on the right to exploit the subsoil of the sea, because in both those respects the United States has declared for itself ownership of a zone which goes either 200 miles out or to the edge of the continental shelf, and therefore these areas now in dispute would in no event be open to international exploitation or to international fishery except by permission or by treaty.

With respect to surveillance, I suppose that that would be affected in that so long as these are high seas, any vessel can come in those waters provided it is not for fishing and provided it is not for the purposes of exploiting the seabed.

QUESTION: To what extent does that work both ways? In other words, I suppose you are concerned -- the government is concerned about a precedent that would involve similar situations in other parts of the world.

MR. CLAIBORNE: Justice Stevens, you have hit upon the reason why it has traditionally been the policy of the United States as a matter of international relations to confine the high seas close to shore, relatively close to shore, because of the interest of the United States in avoiding or wanting to avoid setting a precedent which other nations can imitate and thereby close off the areas near their buoys to international navigation and as well to our surveillance of their activities. It is as Your Honor --

QUESTION: The government surely isn't concerned about any navigation problems as between it and the states, is it, because certainly the federal government can regulate to its heart's content in that area.

MR. CLAIBORNE: I think that is -- Justice Rehnquist.

As I have indicated in answer to a question from Justice White, it is common ground in this case that if Long Island is not an extension of the mainland, then the inland waters behind Long Island are restricted to what are known as -- what is known as Long Island Sound proper.

If I can refer the Court to our exceptions, at the back there are three charts. The first one would indicate sufficiently what I mean by Long Island Sound proper.

On Chart 1, the Court will notice that Long Island Sound, the eastern portion of it is indicated, and that it is closed off by a line from Orient Point on the north of the east end of Long Island to Fishers Island and Napatree Point.

The area west of that is Long Island Sound proper, and it is common ground that that area is inland water not because it satisfies the test as an -- but because it has and always has been historic inland waters of the United States, and that claim by the United States inures to the benefit of the neighboring states, for the most part New York in this case.

What is in dispute is the area indicated in Block Island Sound to the east. If long Island is not an extension of the mainland, no part of Block Island Sound qualifies as part of the bay or as otherwise inland water. There is no claim in this case at this stage that those waters are historic inland waters.

QUESTION: Mr. Claiborne, what is it about Block Island Sound that the United States does not make it an historic bay, whereas Long Island Sound is in your view?

MR. CLAIBORNE: Justice O'Connor, it appears that at the time when the claim to Block Island Sound matured as a historic claim, the general rule, although it was not properly speaking a rule, but the tendency was to treat waters which were closable by a line something approaching ten miles only would fit that description, and that line at the north between Orient Point and Fisher Island and Napatree Point is a total of less than ten miles, while a line from Montauck Point to Washkill or much less a line which would include Block Island would exceed ten miles, and indeed in one case come to 24, or nearby, 24 miles.

Accordingly, those waters were not historically viewed as sufficiently enclosed to justify a claim of historic inland water, and as a matter of fact, the evidence of 70 piers does not justify such a claim on Block Island Sound, and the two states in whose interest it would have been to extend the historic claim that far having not sought to do so, presumably for good reason.

Now, just to identify the position of the parties further, as the Court sees on this Chart 1 is the position of the United States, that is, Long Island not being an extension of the mainland, there is no juridical bay.

There is only the historic inland waters of Long Island Sound and some subsidiary bay such as Gardners Bay which qualify under the convention, and accordingly the line which borders, which is the boundary of inland waters includes no part of Block Island Sound.

The only portion of Block Island Sound which we have between the two states are those portions which constitute the three-mile belt which by virtue of the Submerged Lands Act was granted to them in 1953.

The special master in this case, having concluded to reach a middle solution, as is perhaps all too often the case, drew a line which -- first he concluded that Long Island was an extension of the mainland, and then he closed the bay formed by that island.

This is illustrated in the third of our charts. He drew a line between Montauk Point almost directly north to Washkill Point, and that line enclosed some portion of Block Island Sound.

We agree with the master that if Long Island is an extension of the mainland, which we -- that is the correct closing point.

Finally, the position of the two states is illustrated in Chart 2. They would first maintain that Long Island is indeed an extension of the mainland, but they would then close the bay which they say is formed thereby by drawing a line not north but east to Block Island, and then a northerly line from Block Island to Point Judith.

QUESTION: Mr. Claiborne, what is the standard of review that this Court traditionally uses in reviewing the findings of fact of a special master?

MR. CLAIBORNE: If Your Honor please, the most recent statement by the Court itself with respect to that matter arises in Colorado versus New Mexico, Number 80 Original, decided June 4th of this year. In that case, the Court indicated that the master's findings "reserved and a tacit -- I am reading from Page 6 of the slip opinion -- and a tacit presumption of correctness," but the ultimate responsibility for deciding what are correct findings of fact remains with us.

The Court then cites one of its previous decisions in Mississippi versus Arkansas at 415 of the United States Reports, and concludes, "Upon our independent review of the record, we find that Colorado has failed to meet its burden."

I read those words of the Court as indicating that this Court has concluded that it ought not review a master's findings as though they were the findings of a district judge sitting as a District Court, but except for matters of credibility where his appraisal of the witnesses must obviously be given more weight than what can be determined on the cold record, this Court has an obligation to review the evidence to the extent that it is challenged.

Here, we say that the Court need go no further than the master's report, because we accept every finding in that report, and so far as I am aware, there is no challenge to any finding of fact in that report by counsel opposite.

Accordingly, there is very little occasion in this particular case for the Court to do more than look at the evidence as summarized by the master.

Now, the question whether Long Island is an extension of the mainland, which is the dispositive question in this case, is one that has tended only recently to arise and to arise -- It is a troubling development that every island somewhere near the shore is now thought of -- for being treated as not an island but a peninsula.

If that tendency were to continue unabated, the number of challenges, hence the original docket of this Court would be severely burdened. Now, our brief traces the history of this notion that an island can sometimes be viewed not as an island jurisdictionally but as an extension of the mainland mass.

It was intended as a very narrow exception to the rule of geography. It was originally applied only in the Louisiana delta and the Mississippi delta in Louisiana, where the land mass is so criss-crossed by canals, it looks like a jigsaw puzzle, somewhat separated, and the Court concluded, almost unavoidably, that if one were to take each of the waterways and treat it as separating the mass into islands, Louisiana would wash into the sea.

Accordingly, in that special circumstance, it was deemed appropriate, and this was in a case called Louisiana versus Mississippi in 1905, in which this Court said, "To be sure, these are technical islands," speaking of the St. Bernard peninsula, "but we must view it as part of the land mass."

The only other way in which the Court has thought it proper to treat islands as part of the land, part of the land mass, is when usually a small mud lump or other alluvial formation was appended to the mainland in the sense that it looked like it had dropped off, like a teardrop, and there was a narrow channel separating it from the mainland.

QUESTION: Mr. Claiborne, may I ask you this question? Does trans-Atlantic shipping use Long Island Sound?

MR. CLAIBORNE: The indications in the record, Justice Powell, are that little trans-Atlantic shipping, mostly coastal shipping, but a very heavy volume of coastal shipping.

QUESTION: I know coastal shipping does.

MR. CLAIBORNE: And very much navigated. The total volume I have forgotten, but the volume is quite substantial, and the channel is some 35 feet deep.

QUESTION: Thirty-five feet? That could accommodate trans-Atlantic shipping.

MR. CLAIBORNE: It could indeed. It so happens that the Port of New York is mostly to the west rather than on the East River, and therefore the traffic doesn't go through the East River, and there is no substantial international port within Long Island Sound.

QUESTION: Mr. Claiborne, may I ask, in your discussion of the islands that you were involved in, what is the government's position with respect to Manhattan Island?

MR. CLAIBORNE: Justice Stevens, we don't have to resolve that question here, because as it happens, whichever way one treats Manhattan, the result is the same.

The record in this case does indicate that the geographer of the state -- when asked that question in deposition -- he died before the trial and therefore his deposition was introduced in evidence -- his answer was that Manhattan and indeed Staten Island as well were treated by the committee, the baseline committee which drew the coastline of the United States, as water, as islands and therefore as water because under the rule of Article 7 an island wholly within an indentation is treated as water, but that is only true with respect to an island, and not with respect to some portion of the land mass.

It is obviously a closer question whether Staten Island and Manhattan Island are islands for all purposes. The case of Long Island is much clearer, because there the separation is some seven-tenths of a mile. We have a channel which is a -- channel, not a river, and we have a channel 35 feet deep, and we have it very actively navigated.

When one compares it to an instance which the Court rejected in the Louisiana context, the Eau de Nea and what was claimed to be Calieu Bay, there we have a channel that was only a third, not even a third of a mile wide, only some 14 feet deep, and carrying a far lesser volume of seagoing traffic.

QUESTION: Mr. Claiborne, what about coastal shipping coming from Boston to the Port of New York. I suppose it would actually be a little bit shorter if it went through Long Island Sound. Does the record show anything about whether coastal shipping coming from east of Block Island goes through the sound on its way to New York or whether it goes south of Long Island?

MR. CLAIBORNE: I think, Justice Rehnquist, the record indicates that it does not go through the sound, that most of that traffic goes -- now, why that should be so, because I think Your Honor is correct that the distance is marginally shorter --

QUESTION: Well, other than perhaps it was just thought not to be a very suitable place to navigate.

MR. CLAIBORNE: And there may be some sense of congestion even in the --

QUESTION: Mr. Claiborne, you just a moment ago said that passageway of seven-tenths of a mile was heavily navigated. By what?

MR. CLAIBORNE: By commercial vessels.

QUESTION: From where? Not coastal vessels, or --

MR. CLAIBORNE: They are coastal vessels, but I am only suggesting that they may not be coming from Boston. They may be bringing goods to and from ports within the sound itself.

QUESTION: Sure, and so it is heavily navigated by coastal vessels.

MR. CLAIBORNE: It is heavily navigated by commercial coastal vessels, no question about it.

QUESTION: Which have a destination at a port somewhere on the sound.

MR. CLAIBORNE: Yes, and the master's report is quite clear as to the exact volume of that traffic.

QUESTION: But the passageway is navigated by vessels going from New York Harbor to destinations on the sound, or from sound origins into New York?

MR. CLAIBORNE: I think in both directions.

QUESTION: Yes.

MR. CLAIBORNE: Let me say that the master seemed to have recognized that he was straining the rules in treating Long Island, or would be, in treating Long Island --

QUESTION: Mr. Claiborne, how many harbors do you have in the sound?

MR. CLAIBORNE: Your Honor, I should know that, but don't. I take it there are Connecticut harbors there as well as some in Rhode Island.

QUESTION: And Long Island.

MR. CLAIBORNE: And Long Island itself.

QUESTION: There is a harbor on Long Island?

MR. CLAIBORNE: I frankly don't know, as I should know, what harbors there are there, but the volume of traffic indicates that there must be some place to disembark the cargo and to bring it on board.

As I said, the master seemed to have recognized the difficulty, especially in light of this Court's actual rulings and the language in the Louisiana case in treating Long Island which very severely deflects the coast if it is treated as an extension of the mainland, as an extension -- an island.

So what he did was to say to himself, what, when I look at what Long Island does, it is clear to me that what is behind Long Island looks like a bay, and therefore, since it seems to form a bay, and the only way it can be so legally, I will treat it as an extension of the mainland, totally backward reasoning, result-oriented reasoning.

He said this area, Long Island Sound, is used as a bay. It looks like a bay. Therefore it must be a bay, yet it cannot be a bay unless Long Island is an extension of the mainland, therefore I will treat Long Island as an extension of the mainland even though it may not qualify otherwise.

Now, that is our bone of contention with the master's report, and if that sort of principle, that sort of loose principle were to be encouraged, we would have many more such cases. There are many other states waiting in the wings to see whether this novel effort prevails.

I will save what time I have.

CHIEF JUSTICE BURGER: Mr. Proudfit.

ORAL ARGUMENT OF JOHN G. PROUDFIT, ESQ., ON BEHALF OF NEW YORK

MR. PROUDFIT: Mr. Chief Justice, and may it please the Court, I will respond to the government's arguments with respect to whether or not there is a bay as found by the master, and Mr. Doherty will address the proper closing lines for that.

The master found a juridical bay as he inevitably had to do on the basis of the facts and the law. There were four basic reasons why he found the juridical bay. First of all, the area is geographically a bay. Secondly, it meets all the requirements of Article 7 of the Convention on the Territorial Sea and Contiguous Zone.

Thirdly, it satisfies the use and purpose concept in international law, that concept which permits a bay to be closed. And fourthly, Long Island meets the requirements as set forth by this Court in the Louisiana boundary case of being realistically considered as part of the mainland.

QUESTION: Of course, if you are wrong on the last, your first three reasons evaporate, I take it.

MR. PROUDFIT: Your Honor, that is correct. As far as this Court goes, that is absolutely correct.

First of all, geography. The government would have you focus on the fact that Long Island is an island. It is surrounded by water. The states have never disputed that. But the reality is that that island forms a bay, forms a very large bay, encloses those waters. It is a unique island. It is a unique bay.

The government referred to the charts in the back of their brief. You will notice that those charts only show you the Block Island Sound area. Now, I submit that from their point of view, that is what they would like to have you see.

From our point of view, and from reality, we would like you first of all geographically to look at Long Island in toto and Long Island Sound. In the back of the master's report, at Appendix B, there is a chart which shows you that area.

I suggest it is difficult to follow, so we have provided you with an additional map, a satellite map that you have before you, and that map, if you care to pursue it at some point, will give you a better idea because of the contrast in the color --

QUESTION: Is this the one, Mr. Proudfit?

MR. PROUDFIT: That's correct, Your Honor.

What I would suggest the first thing that you see geographically that Long Island fits into the mainland and in fact geographically is closer to the mainland than the government would suggest. It is separated from the mainland by a body of water referred to as the East River.

And because it is separated by that body of water, the government says it is -- may not be considered as closely related to the mainland. Now, this Port of Louisiana case suggested factors which should be considered in determining whether an island is realistically part of the mainland.

The first of these factors is size. Long Island is a very large island. It is over 100 miles long. It has 450 miles of shoreline. It contains four counties of the State of New York. It contains two boroughs of the State of New York. Over half the city population is on that island.

QUESTION: When you say four counties, are you including among those the two boroughs?

MR. PROUDFIT: That's correct.

QUESTION: So it is two boroughs and Nassau and Suffolk County?

MR. PROUDFIT: Yes, that is correct.

Now, the only -- I think the relevant thing about size in relationship to the water that is enclosed, it is in relationship to the projection from the mainland, and I might also say that size is another consideration when the government talks about islands and mud lumps in the Mississippi -- in the delta area and in the Gulf.

I would say to you that in my opinion, there is absolutely no comparison. The master looked at charts of that area. He looked at charts of islands in Alaska, and there was no comparison.

The next factor which this Court said should be considered is distance from the mainland. Now, the East River separates Long Island from the mainland --

QUESTION: What are you talking about when you refer to the mainland?

MR. PROUDFIT: Your Honor --

QUESTION: Manhattan?

MR. PROUDFIT: I am talking about Manhattan, and I am also talking about the Bronx. The Bronx, I don't think there would be any dispute about that being the mainland.

QUESTION: Well, when the government says that the East River is seven-tenths of a mile wide, where is it measuring the East River?

MR. PROUDFIT: That, Your Honor, is measured from Frog's Neck to Willet's Point, and that is not the narrowest point. If you went straight across --

QUESTION: Frog's Neck to -- that is just the north end of Flushing?

MR. PROUDFIT: That's correct. Your Honor --

QUESTION: I've got it. That is the two-thirds of a mile.

MR. PROUDFIT: Yes.

QUESTION: Seven-tenths of a mile. How wide is it down at Manhattan?

MR. PROUDFIT: Well, it gets down to about three-tenths of a mile.

QUESTION: On either side of -- what's the island there in --

MR. PROUDFIT: That would be --

QUESTION: Rikers Island?

MR. PROUDFIT: It slips my --

QUESTION: On your map the very narrowest point is the water on either side of an island.

MR. PROUDFIT: Well, it gets -- I think that is referred to as Roosevelt Island.

QUESTION: And how wide is the water passage there?

MR. PROUDFIT: Well, it would be less than three-tenths of a mile, Your Honor, but I think it gets even narrower farther down.

QUESTION: Under the convention, do you have to treat islands like that as water, however?

MR. PROUDFIT: Your Honor --

QUESTION: I mean, you are not just -- isn't that what the Convention instructs us to do?

MR. PROUDFIT: Justice O'Connor, it says to you, treat islands as water in the terms of the measurement of water area for complying with the semicircle test. Mr. Claiborne suggested that the geographer of the United States, Dr. Hodgson, treated that as water.

In fact, Exhibit 78 to the deposition -- I am sorry. It is Exhibit 73. U.S. 73 is the deposition of Dr. Hodgson. On Page 78 he says that Manhattan would be considered a part of the mainland, and obviously you can see the connection there, the river between the two --

QUESTION: But not Roosevelt Island?

MR. PROUDFIT: Not Roosevelt Island. No, Your Honor.

QUESTION: If Long Island is a part of the mainland, is Roosevelt Island?

MR. PROUDFIT: Your Honor, Roosevelt Island is an island. We don't consider that --

QUESTION: No matter what you do about Long Island, it is an island?

MR. PROUDFIT: There is not a bridge running over there.

QUESTION: It doesn't make any difference anyway?

MR. PROUDFIT: It doesn't make any difference at all, Your Honor.

QUESTION: Yes.

MR. PROUDFIT: The next factor is the depth and utility of the intervening waters.

QUESTION: Are you sure there is no bridge to Roosevelt Island?

MR. PROUDFIT: Your Honor, you caught me out. The Queensboro Bridge goes across Roosevelt Island. You are exactly right.

QUESTION: I was just getting ready to blow my brains out.

(General laughter.)

MR. PROUDFIT: You are exactly right, and in fact there is a tram car that runs from Manhattan, but you are exactly right. I didn't think of that, but you are exactly right.

The depth and utility of the intervening waters, the waters of the East River are internal waters. Now, basically the East River is a strait running between two bays. It runs between New York Harbor and it runs between the waters of Long Island Sound. That opening into the East River at the end of Long Island Sound is dwarfed by the size of the water body. It is dwarfed by the size of the island.

The depth, as Mr. Claiborne suggested to you, is 34 feet, and that depth has been increased by a major project of the Corps of Engineers back in the 1980's. Shape is another factor. It is along projection from the mainland enclosing a large body of water.

QUESTION: Is that East River body of water substantially greater than that of other channels which this Court has previously ignored for purposes of determining a headland?

MR. PROUDFIT: Your Honor, I think it probably is. It certainly is deeper, but I would suggest to Your Honor that that --

QUESTION: Greater navigability and deeper than any that we have previously --

MR. PROUDFIT: That is correct, Your Honor, and I would suggest that that is relative here to the size of the island and to the size of the water bodies. There are also here, of course, physical connections to the mainland. There are the --

QUESTION: Do you really think that we should follow a principle that says because you build a bridge you ought to be able to annex an island? Doesn't that have international ramifications that we might not like as a nation?

MR. PROUDFIT: Your Honor, I --

QUESTION: Under -- in interpreting the Geneva Convention?

MR. PROUDFIT: Justice O'Connor, I would suggest that that is one factor that this Court considered. These are major physical connections.

QUESTION: Well, isn't that kind of a risky factor on which to determine this question?

MR. PROUDFIT: Your Honor, that is one additional factor that I would suggest, and I certainly wouldn't hinge the relationship on that as the only factor.

QUESTION: You think you can win even without that factor.

MR. PROUDFIT: That's correct, Your Honor. I say that we can win because of the close relationship between Long Island and the mainland that is geographically there, that is there by common sense, and is there because of the other factors which this Court -- which I have enumerated, and because the East River in separating Long Island from the mainland is -- according to the government, the only reason that Long Island Sound can't be a bay is because that is not a river.

None of those factors would change if in fact that was a river, so that is their distinction, and what I say is, it is not a river, but it is an estuary, it is a very complex estuary, which their own witness, Dr. Swanson, testified to, and the Hudson River is an estuary.

The Convention would consider obviously estuaries in terms of bays, because we are talking about areas that are on the ocean, but let me just --

QUESTION: Could I -- don't you think the fact that the government agrees, the special master found and the government agrees that this is a historic bay, doesn't that support your argument that Long Island is part of the mainland?

MR. PROUDFIT: Your Honor, if you consider those are internal waters, this is why I would say they have -- on occasion people have said that they recognize it as a historic bay. They only recognize it as historic waters. If in fact they recognize it as a historic bay, then they would have to go the other mile and say it was a juridical bay.

But I think this Court has said the best and most workable definition of a bay is the Convention, and the Convention, all the requirements of the Convention were found by the master to apply to this area.

Also, the whole concept in international law which permits a bay to be closed is the fact that it is an area that is surrounded by land, it is closely related to that land, and the reason it can be closed off is because by closing it off you are not interfering with through international traffic going between two foreign states.

And the master found that that was the situation here, that there was no through foreign commerce passing through this area.

For all the reasons I have suggested plus common sense, Long Island forms a bay. The master said if there was ever a situation where a large island would be considered a part of the mainland, so the waters enclosed between the island and the coast can be a juridicial bay, this is it.

Mr. Chief Justice, if I may.

CHIEF JUSTICE BURGER: Mr. Doherty.

ORAL ARGUMENT OF J. PETER DOHERTY, ESQ., ON BEHALF OF RHODE ISLAND

MR. DOHERTY: Mr. Chief Justice, and may it please the Court, this is not a case of Rhode Island imperialism. We are certainly happy to be the smallest state, and we are happy to remain as such. However, we do not wish to have an Argo Merchant accident on our shores.

And because the Congress at the very beginning of this Republic in the law now codified as 46 U.S. Code, Section 211, saw fit to delegate to the various states the responsibility or the obligation if they so chose to regulate pilotage in their waters and in the bays, inlets, and harbors of the United States then they could so do.

And Rhode Island has chosen to do that, and that is the genesis of this litigation we have here today. A question earlier from the bench certainly made reference to Pall versus Dunlap, which is pending on certiorari before this Court in Docket Number 75-6990.

And should we lose this case, should Block Island Sound and Long Island Sound not be found by this Court to be a juridical bay, Rhode Island would no longer be able to regulate pilotage of foreign flag vessels and American vessels under foreign registry in Block Island Sound.

This is not a small item. Supertankers navigate through Block Island Sound and into Long Island Sound, passing between the Rhode Island coast and Block Island. They go to Port Jefferson, where there is a major off-load facility. Other smaller tankers, because of the draft in the East River, go down and dock and unload in the East River in the vicinity of LaGuardia Airport and those facilities there.

So, we are talking about a very serious issue to Rhode Island. Further --

QUESTION: You say they go through Block Island Sound --

MR. DOHERTY: That's correct.

QUESTION: -- and then go down -- come up through the narrows?

MR. DOHERTY: No, they go through Block Island Sound, Justice Rehnquist. They then go through the race, which is between Fishers Island --

QUESTION: Okay.

MR. DOHERTY: -- and a number of small islands, Little Gull Island and Great Gull Island, and then they go down into Port Jefferson, which is on Long Island, which is on the north coast of Long Island, about midway down.

QUESTION: And that is their point of destination?

MR. DOHERTY: That is their point of destination. They also go to New Haven Harbor. There are also major oil facilities there. The smaller tankers go to Shelter Harbor.

QUESTION: How about New London?

MR. DOHERTY: There are smaller facilities in New London, not as large as in New Haven, Justice White.

QUESTION: This is traffic from -- foreign traffic headed for ports on the sound then.

MR. DOHERTY: On the sound.

QUESTION: And it goes through Block Island Sound.

MR. DOHERTY: There is -- Captain Neery was a Rhode Island witness, and there was testimony also from the United States, Dr. Swanson, I believe, which spoke of vessel movements. The predominant vessels that enter Block Island Sound, they go to ports on Long Island Sound and they go only as far as the East River.

They don't navigate through the East River and then go up the Hudson to dock and unload. They go to New Jersey ports, Bayonne and the like. Those vessels come into lower New York Bay. So that we are not talking about through traffic that is going up the Hudson River. They go outside.

So that the international usage of these waters is just not there. It is not there in the record, and I don't think the international implications which you referred to, Justice Powell, are there in the record.

This scepter that is raised in this sort of litigation, the impact of fisheries, the impact of coastal zone management is just not there in this case.

Turning to Block Island Sound, and accepting for the moment New York's argument and Rhode Island's argument that Long Island is an extension of the mainland, the question becomes, how do you close that area of water known as Block Island Sound, and I would refer the Court to the master's report, which should be in Appendix C, which contains a chart of the area and the master's outlines of various alternatives presented to him.

As I did in my brief, I would say that the solicitor has characterized the master's report as one of seeking middle ground. Rhode Island would so characterize it. We think he didn't go far enough. He took a compromise, because the line he chose to draw, the line to Watch Hill Point is not a proper one under Article 7.

Article 7, Subsection 5 and 4 contemplate that under Article 7 that the nation should close the largest amount of water possible under those rules, and the line to Watch Hill Point is certainly a probable line, and it is less than 24 miles, and the area behind it is greater than a semicircle of its length.

But Weekapaug Point, which is slightly to the east, also satisfies that test.

QUESTION: Which one would you draw?

MR. DOHERTY: We draw the line from Montauk Point to Point Judith. We point out that the Weekapaug Point line is a correct one if you choose not to draw a line to Block Island.

QUESTION: But wouldn't that line be longer than 24 miles?

MR. DOHERTY: Not the line to Weekapaug Point. No, Justice O'Connor.

QUESTION: No, but the line from Montauk to Point Judith?

MR. DOHERTY: The line itself from Montauk Point to Point Judith would be slightly in excess of 24 miles.

QUESTION: And that would violate the Convention.

MR. DOHERTY: That would violate the Convention, Justice O'Connor, but if you look at the Court's language in U.S. versus Louisiana, the fact that a line between two headlands does not constitute a bay does not -- would be longer than 24 miles does not mean that you eliminate considering the impact of islands in the vicinity of the mouth of that area.

And we suggest that if one was looking at the geography of the area, you have to pick out various geographic points, and you cannot look at this area and not say Block Island is there. We have got to consider how does this impact on the area? And if you draw a line from Montauk to Southwest Point and Block Island, from Sandy Point to Point Judith, that is less than 24 miles. It seems to me then you have to look at the idea of, well, it is seaward of that line between Point Judith and Montauk Point --

QUESTION: Well, the state's line drawing seems a little weird to me, frankly. I wouldn't know why you wouldn't just make a perpendicular line there, assuming it is -- that we treat Long Island as an island. I am not sure we will by any chance, but if you did, I would think you would just draw your line straight up.

MR. DOHERTY: Straight north.

QUESTION: Sure.

MR. DOHERTY: Well, your guess is in good company. The master thought that as well, Your Honor. But that seems to come from the mindset that one gets that somehow a bay has to be symmetrical, that it has to be that perfect crescent, that arc, and not so.

The Convention itself, when they decided to extend the maximum line to 24 miles, really went beyond anything that had previously been thought to be a bay. If you look at some of the treatises which the master relied upon, cited in Rhode Island's brief, the idea that a bay could have a mouth of 24 miles just -- people would shake their heads at back in the revolutionary times and the like.

Similarly, I don't think that the idea that a bay has to be a crescent, or has to be symmetrical, like Chesapeake Bay -- that is thrown out when the Convention comes in. You are looking at a fairly objective test which, although some of the words lack definition, you are looking at an objective test, and if you meet the objectivity of the test, then it is a juridical bay, because they didn't want one nation drawing it differently from another.

QUESTION: Well, is your theory making Block Island part of the line for a -- that the bay which is formed by the Long Island headland in the south and the Rhode Island-Connecticut coast on the north has two mouths?

MR. DOHERTY: There are two entrances, two mouths. Yes, Your Honor. There would be two mouths. Importantly to our argument, however, and the evidence demonstrates, the mouth between Montauk Point and Block Island is not utilized by commerce because of the dangers in the area, the swells in the area, the obstructions in the area, wrecks, ledges, and the like. Currents are tricky in the area.

So that all traffic, Your Honor, all commercial traffic entering this body of water enters between Sandy Point and the Rhode Island coast. The master makes that finding. The testimony -- there is no contrary testimony. All commercial traffic. Indeed, commercial traffic coming from Newport, which is a major naval facility, and passing to the south always passes outboard of Block Island.

QUESTION: Eastward of Block Island?

MR. DOHERTY: Eastward of Block Island. They never -- the straight line distance is shorter if you went -- you know, you could go between the islands if you were going in a straight line. They always pass outboard. It is treated as if the waters behind Block Island and Long Island and the Rhode Island mainland are internal waters by all traffic of that nature. They do not pass between.

They always leave Block Island to port on entering and leave it to starboard on leaving. It is coastal traffic. If they are going south of New York, they leave Block Island to the inland, to starboard. If they are going to Boston or Cape Code, they leave it to port.

So therefore traffic treats it this way. It is indeed an estuary, too. The estuarine complex which comes from the Connecticut River, the Hoositanic River, the East River itself, and all of the watershed -- the Thames River, the whole watershed of New England comes out, it flushes out between the race and then out at Montauk and Block Island.

The salinity of the water is substantially different when you pass seaward of Block Island. Block Island offers protection to navigators, both in small boats, pleasure boats, and to tankers. There is testimony to show that tankers hub to in stormy weather, from the southeast particularly, in the lee of Block Island.

Further, if you look at -- to go back to your question, Justice O'Connor, the protection, the idea of protection has to do with the troubling concept of landlocked nature of a bay, and because the water goes east-west, I suggest if you turned your chart so it went -- the bay was a north-south bay instead of an east-west bay, the notion that it is a juridical bay becomes much more clear, because somehow our minds go north-south. I don't particularly know why.

The protection of the Rhode Island mainland -- the mainland of Rhode Island protects those waters from northwest winds from a northerly direction, from northeasters, harsh northeasters in that area.

So that the notion that the master found that you could not use Point Judith and could not use Block Island because parts of the bay that would be enclosed thereby would be not landlocked are defeated by -- if you start locking at it as a north-south fjord, if you might call it so.

Similarly, we don't ask the Court, and it upsets us greatly -- we talked about standard of review earlier. The master summarily rejected an argument offered by -- not an argument, testimony of an objective test offered by Mr. White, one of our expert witnesses, from England.

He came up with an objective test to determine whether or not an area with an island in the mouth of something that you might be considering to be a bay was landlocked, and if you look at his testimony, and they occur at Pages 164 and 166, and particularly Rhode Island Exhibits 10 through F, his test, and it comes from the basic concept that a semicircle is 180 degrees, an arc, and his concept is that if land, if you enter a bay, you see land around 180 degrees of the horizon at least.

And he applies that to Block Island in its actual position and then to its seaward position. He moves it to a notional position slightly two miles seaward, and at that position it flunks the test. It does not satisfy this objective 180-degree test.

We submit that because of the size of Block Island, its orientation to the coast and to Long Island, and because of its proximity to the line between Point Judith and Block Island, that any sensible person initially looking at it in a north-south fashion would see that Block Island has a very integral part to -- plays a very integral part to the Long Island Sound-Block Island Sound system, and therefore has to be considered to be landlocked waters and has to be -- we are not in shallow water here, either.

Mr. Shalawitz, in his treatise, which has been cited by this Court in a number of earlier cases, posits situations where lines should be drawn to seaward islands, islands seaward of natural entrance points, and although he posits something the courts would like, a rule of reason, we posit a rule of reason plus Mr. White's objective test.

And upon that, we submit that Block Island Sound and Long Island Sound should be viewed together, and lines should be drawn as Rhode Island posits them and as New York posits them.

QUESTION: May I ask you one question?

MR. DOHERTY: Yes.

QUESTION: Do New York and Rhode Island agree that the government's three charts at the end of its exceptions correctly depict the respective positions of the parties?

MR. DOHERTY: Oh, yes.

QUESTION: I just wanted to be sure.

MR. DOHERTY: They depict Rhode Island's position and New York's position. They accurately depict what the master found, and they depict their position as well. Yes, Mr. Justice Stevens.

If there are no further questions, I am through with my presentation. Thank you.

CHIEF JUSTICE BURGER: Very well. Do you have anything further, Mr. Claiborne?

ORAL ARGUMENT OF LOUIS F. CLAIBORNE, ESQ. ON BEHALF OF THE PLAINTIFF

MR. CLAIBORNE: Mr. Chief Justice, three short points.

QUESTION: Where do you measure that two-thirds of a mile, by the way?

MR. CLAIBORNE: It is, as indicated, at Frog's Neck, on the theory that that is the nearest mainland.

QUESTION: So that is the -- what is the name of the bridge? That is area, though?

MR. CLAIBORNE: This is Flushing to Frog's Neck is three-quarters of --

QUESTION: That's the Bronx.

MR. CLAIBORNE: -- seven-tenths of a mile.

QUESTION: That goes over to the Bronx.

MR. CLAIBORNE: Over to the Bronx. That is the only stipulated distance in the record. I was informed that the shortest distance, that Manhattan was nearer half a mile than a third of a mile, but that is something we oughtn't to be arguing about, because the states were free to introduce such evidence and did not.

Now, if I may emphasize a point Justice O'Connor made, which is that this Convention, which the Court adopted partly for this reason, tries very hard to make the test of bays and generally coastline delineation objective rather than subjective.

Some subjectivity is unavoidable, but for the most part it is on a two-dimensional chart added only by depths. The navigational chart has depths. It does not tell you how many people cross over to the island and that sort of thing.

Those considerations were quite deliberately eliminated in the question of whether an island is an island, whether mainland is properly treated as land, and so forth. Indeed, the United States, when it argued that a mere spoilbank oughtn't to count as part of the mainland, was properly rebuffed by this Court.

A spoilbank is no different from land naturally -- the second point, Justice White suggested that perhaps the states' case is aided because they are historic inland waters behind Long Island. It is the other way around.

The fact that they are historic inland waters behind Long Island means first they are historic because it is adverse possession --

QUESTION: Why do you call it historic inland waters rather than a historic bay?

MR. CLAIBORNE: Well, I don't. I think it was correctly said that it would --

QUESTION: The master thought it was a historic bay.

MR. CLAIBORNE: Well, it doesn't matter.

QUESTION: The Convention treats it as a historic bay.

MR. CLAIBORNE: A historic bay is one that does not conform to the juridical rules, and therefore does not require a headland that is mainland rather than an island, and precisely because the waters behind Long Island, most of them, Long Island Sound proper, is inland water by concession, there is less reason to strain the juridical rules to extend that area.

No doubt because that area looks like and is used like a bay, that is why it became historic inland water, but that is no reason to bend the juridical rules to extend it further east.

Now, that area could be enclosed under the rules of the Convention under Article 4, but this Court has very clearly said that is a matter for the federal government to determine, whether or not it will invoke the rule of creating bays or inland water by islands.

The government has consistently, not only here, but everywhere, decided not to invoke that Article 4 straight baseline system, and that decision cannot be got round by creating artificial extensions to the mainland out of what is islands.

Now, finally, the East River is not a river. It is a tidal race, a strait, but we do not claim that it is an international strait. If it were, all kinds of different arguments would be available to us. We simply say that there is much navigation, there is considerable depth, there is a substantial width, and that makes Long Island an island.

There are many islands separated from mainland by something other that international space. The coast of the United States is such that international traffic does not go between every island and the mainland.

Now, finally, Justice Marshall asked what were the ports which were said by this traffic. The actual ports are not identified in the record, but I do refer Your Honor to Pages 40 and 46 of the master's report, in which he says, just as an example, "In 1972, there were in excess of 77,000 commercial movements on the East River, and 52 million short tons of cargo moved on the river."

He does point out --

QUESTION: Is there any indication that that came from the sound rather than New York Harbor?

MR. CLAIBORNE: At Page 46 of the report, Justice Rehnquist, the master says that ships do not pass through Long Island Sound and the East River unless they are headed for New York Harbor or ports on Long Island Sound.

We accept, of course, that finding as we have accepted all the findings of the master. I will leave it there.

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

(Whereupon, at 10:54 a.m., the case in the above-entitled matter was submitted.)