Transcript

IN THE SUPREME COURT OF THE UNITED STATES

UNITED STATES, Plaintiff v. WAINE, ET AL.

No. 35 Orig.

December 12, 1985

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:02 o'clock a.m.

APPEARANCES:

HENRY HERRMANN, ESQ., Special Assistant Attorney General of Massachusetts, Boston, Mass.; on behalf of the Plaintiff.

LOUIS F. CLAIBORNE, ESQ., Special Assistant, Department of Justice, Washington, D.C.; on behalf of the Defendant.

PROCEEDINGS

10:02 a.m.

THE CHIEF JUSTICE: We will hear arguments first this morning in the United States against the State of Maine.

Mr. Herrmann.

ORAL ARGUMENT OF HENRY HERRMANN, ESQ. ON BEHALF OF THE PLAINTIFF

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

This case is an action to quiet title brought by the United States of America against the Commonwealth of Massachusetts. The area in controversy is a body of coastal water off the coast of Massachusetts known as Nantucket Sound.

The charts appended to both the Massachusetts brief in support of its exception and the United States reply brief, both those charts indicate the configuration and location of Nantucket Sound. They further indicate the precise nature of the controversy on the ground.

Massachusetts claims that the entirety of Nantucket Sound is state, and therefore United States inland waters and that Massachusetts is the owner of the seabed thereof. The United States, as the chart appended to its brief shows, it claims a small, what one can call a small federal enclave in the center of the Sound with a narrow passageway leading thereto from the open ocean.

This case at its present state of the proceeding involves only Nantucket Sound. Other areas in controversy have so far been disposed of, and the present stage of the proceedings are before the Court on the report of its Special Master and on the sole exception taken by Massachusetts.

This exception by Massachusetts is somewhat unusual for two reasons. First, this is not the type of submerged land or marine boundary case as the Court has heard many in the past, where the state and the federal government are fighting for a small area of land because of the king's ransom in oil royalties that they portend.

Under Massachusetts state law, which has been in existence for a long time, Nantucket Sound is designated a state ocean sanctuary and Massachusetts wishes to preserve its state protection which is absolutely --

QUESTION: What is a state ocean sanctuary? What is that, a state ocean sanctuary?

MR. HERRMANN: Under Chapter 132-A, Sections 14 and 15 of the Massachusetts General Laws, Your Honor, the state has designated certain particularly important or ecologically or scenically unique areas of its coast as so-called ocean sanctuaries, and those cannot be changed or altered in any way by exploitation, advertising.

There can be no change in the water. There can be no degradation of the seabed, no erection of structures, no waste disposal. In other words, the statutory scheme is to preserve the status quo, the pristine beauty of this area, absolutely for all time.

That is the gist of such a designation, Your Honor. That is the first --

QUESTION: Mr. Herrmann, as I understand it, Massachusetts is claiming ancient title as the theory of its recovery?

MR. HERRMANN: Yes, Justice O'Connor.

QUESTION: And I don't know that this Court has ever recognized ancient title as a theory of recovery as such. It has had cases dealing with historic title, and I'm not sure that I understand what you think the elements are for establishment of ancient title, and whether you think there are any cases from this Court that would support the application of that theory as opposed to normal principles of historic title.

MR. HERRMANN: Yes, Your Honor. I think there are two parts to that question. Let me take the second one first. I think there is indeed solid precedent from the decisions of this Court -- if I may refer the Court to Manchester versus Massachusetts, decided in 1981, there the Court had before it a controversy as to the status of Buzzards Bay, which if I can again -- if I may refer the Court to the charts appended to either of the briefs, you will see that Buzzards Bay is one of the semi-contiguous bodies of water to Nantucket Sound.

First you have Nantucket Sound, and eastward of that you have Vineyard Sound and then eastward of that you have Buzzards Bay. Well, as to the famous -- and it is a famous case, it's been discussed by almost all the international publicists at length, as to the Buzzards Bay case in 1981 -- interestingly enough, this Court said very succinctly, without equivocation, "It is clear," said the Court, "that Massachusetts is the owner, that it has Buzzards Bay by virtue of its province charter."

Now, I ask the Court for a moment to ponder the implications of that. How could that be anything but what we today under modern international law parlance, as it has been, for example, been expressed by the U.N. study, the juridical water study, in paragraph 71 thereof which we quote, what else could that mean but an ancient title?

To support that finding and that holding by the Court, the King of England had to have gained it in the first place, if Massachusetts got it from the Crown. How could the King of England have gained it? He could only under then prevailing international law have gained Buzzards Bay and the surrounding lands by initial discovery which was at that time, as was also held by this Court in Martin versus Waddell, the accepted way of gaining title over newly discovered land, to just discover it.

The title was then fortified by occupation, through the settlements in the colonial times. Then, that is how title vested in the Crown. The Crown then passed the title, as it had the right to do under British law, and that's unquestioned today as it was then.

The Crown gave title to these lands and these subsoils in Buzzards Bay as it has, we claim, in Nantucket Sound, to its colony, to the Province of Massachusetts. That is the 1691 charter. That's the one referred to 100 years ago by this Court, and that's precisely the charter that the Special Master in this case said was operative in granting us Nantucket Sound.

QUESTION: Mr. Herrmann, do you think that title acquired in that fashion can be abandoned by the states?

MR. HERRMANN: Theoretically, yes, Your Honor, but our position is, we have briefed that, and I would like to point out again, while in theory it could be abandoned, in practice prevailing international law implies extremely strict provisions, how that must occur, and if those provisions are not met the theory of lapse or abandonment of an already perfected title, and may I just address that distinction, what the Master was talking about and what I think Your Honor is talking about is, once a title is perfected can it be abandoned or can it lapse.

What the Master was talking about later in the discussion, and what the Government is focusing on is -- was a so-called historic title ever acquired. But as to the perfected ancient title which was now perfected in colonial times, no I would say in theory yes, but it is quite clear that international law, both by the courts and the publicists, this so-called active abandonment theory is definitely in disfavor.

It's in disfavor because it leads to instability of international titles and possible international tensions.

QUESTION: Well, there's no problem here, because if the state doesn't have it the United States does. There's no lapse in title, and if abandonment is possible I must say it's hard for me to understand why the legislative acts of disclaimer by Massachusetts and the publication of its official charts don't reflect abandonment by the State of Massachusetts.

MR. HERRMANN: Your Honor, I don't think -- I submit that they do not reflect abandonment by Massachusetts for the following reasons. If Your Honor's referring to the late 19th Century charts that were published by the harbor and land commissioners, those were published upon the mandate of the Massachusetts Legislature, leading back to an 1859 statute by the legislature.

Just like the British Territorial Waters Jurisdiction Act, both those statutes were passed as an almost emergency measure to cure the problem that apparently there was no criminal jurisdiction in the open water, on the seacoast. The problem was quickly -- very quickly, because of two cases that involved the inability to prosecute a criminal, so the Legislature almost on an emergency basis extended its jurisdiction seaward.

So, the first thing is they had no intent, and Mahler versus Transportation which we cite in our brief deals with that problem so there should be no inference that a state -- a legislature is abandoning a state seabed unless they expressly say so.

The purpose of that legislation was not to abandon territory already vested in the State. Its purpose was purely one to extend on an emergency basis, curial jurisdiction for criminal purposes. That's point one.

Point two is that if you look, as I think one must, at the state statute and the large-scale charts of 1891 -- I'm sorry, 1883, you look at them together because they are a unitary manifestation.

As we pointed out in our brief, the charts are ambiguous. They do not show an intent to abandon Nantucket Sound with -- not specificity as is required under international law.

Why? Because if Nantucket Sound had been high seas, as the Government contends, there would have had to have been a closing line between Vineyard Sound, clearly, and Nantucket Sound. That is Exhibit 4 of Massachusetts exhibits, Your Honor, as we have referred to it in your brief.

It is clear that the Harbor and Land Commissioners had a great deal of problem reconciling that criminal jurisdiction statute and what they perceived to be the actual status of Nantucket Sound, which was not high seas.

Finally, Your Honor, I would ask you to consider the following point. I submit that it is constitutionally impermissible for a state to diminish the national domain, once -- and this is what the Special Master really found -- if there was a perfected ancient title, that was then state seabed but it was also a part of the national domain, and I do not think that any state legislature under our constitutional system has the right to disclaim territory that belongs to the nation as a whole, as well as to it.

So, for those three reasons, A, it wasn't the legislative intent to abandon anything; B, they did not do so effectively, look at the charts that went with the statute; and C, I don't think they have the constitutional power to.

But to return again, Your Honor, to the first part of your question, what is required under international law? In the first place it would have been, I suggest to you, an international problem because at the time the United States says that there was a lapse, that is in the last century, and this is an interesting historical point, your only time the United States acquired title to that seabed, the first time, incidentally, was in 1949 during the Truman proclamation which extended the United States' assertion of imperium and dominion from the three-mile limit out to the edge of the continental shelf.

At the time in question, in the late 1890's, it would have been -- the option was clearly, either inland waters and ergo, state seabed, or, not belonging to the United States at all. So, this blending, as it were, which Your Honor has referred to is only a late postwar manifestation.

The elements, quickly stated in bare outline, because there has been much written about it by the publicists, in international law to have abandonment which is not favored, you have to look to the exact circumstances. First, the question of time.

As long as there is not an adverse claimant and the United States has not proven -- has not even suggested that since colonial times any other foreign nation or group of foreign nations has ever even hinted at a claim to Nantucket Sound, absent an adverse claimant, the World Court, the International Court of Justice has in two leading cases indicated that it would not deem significant even a 200-year period of absolute cessation of activity, which of course there is not present here.

There were always exploitation activities and assertions of dominion. But even assuming for the moment for the sake of the argument that from colonial times, let's say from the time of the Revolution, there had been a total cessation of assertion over Nantucket Sound, the World Court in the two cases we cited, the case of the Minkes and Ekrahoes Islands in the Channel, the British Channel, and in the case, the so-called Eastern Greenland case, in both those cases a time period of over 200 years was deemed as not significant for one reason only, the absence of an adverse claimant which is also absent here.

Secondly, it seems well settled in the international law, according to the pre-eminent experts whose views we cite in our brief, that you have to consider two more circumstances if abandonment is to be argued about. One is the geographical situation on the ground.

It seems well settled that if the so-called abandoned territory is in direct geographic proximity, if it's integrated into the territory or very much adjacent to it, of the so-called abandoning state, that counts heavily against such a presumption. And most important, if the so-called abandoning nation at all times during the time period involved retains the power to assert its control and jurisdiction over that area, if it wishes -- I'm not talking about actual assertion but if it has the de facto power to reach out, as it were, at any point in time and assert its jurisdiction over that area, then it seems settled in international law that you can have no presumption of abandonment from mere inactivity. You must then find an actual overt express act of renunciation which, I submit to you, is not present in this case.

The only argument the United States has is that late 19th century legislation by Massachusetts, and I've already pointed out that was neither the legislative intent nor did the Legislature even presume such an attempt to accomplish the purpose.

I return now to the sole question which remains now, I submit, before the Court.

QUESTION: May I interrupt you, General Herrmann. I didn't understand -- I think Justice O'Connor asked you about ancient title and asked you if there are cases, and you gave us the citation of one of them, but then you were going to tell us the elements of ancient title, or have you done that?

MR. HERRMANN: No, Your Honor, I haven't. I'm glad you reminded me. The elements of ancient title really are in direct -- somewhat direct contrast to historic title, so-called. Both of them, and this terminology gets a little confusing if one uses it quickly, both "ancient title", quote unquote, and "historic title", quote unquote, are under prevailing doctrine as stated in the U.N. study, grounds for finding historic waters.

So, the antecedent of "historic waters" may be either ancient or historic. The terminology is not optimal but I think we are stuck with it.

Now, in case of historic title, that is really, as the Master explained at length, a matter of prescriptive title. You attain such a historic title prescriptively, as against the community of nations, by fulfilling certain prerequisites, and very briefly stated they are as expressed again in the U.S. study, the juridical regime.

They are, one, you have to have a claim by the state, by the sovereign. Secondly, there has to be continuity for that claim, and again I stress that's what the Master is talking about, continuity of a claim, not continuity of an already ripened title.

And third, you have to gauge the so-called reaction of other sovereign states and some scholars say you have to have an actual lack of protest, you have to have acquiescence. Others say the mere absence of protest is enough.

Those are the elements of historic title. Ancient title is quite different. Ancient title is not attained by prescription. It is really a perfected original title.

It must under prevailing law, and this seems clear, be acquired prior to the regime of freedom of the seas, because since freedom of the seas became an accepted doctrine in international law, certainly no earlier than the 18th century and some experts say as late as the early 19th century, prior to -- since freedom of the seas became a doctrine of international law you cannot acquire ancient title to seabed non-prescriptively because you would have to be acquiring it against the interest of the community of nations, against the res communas which is the open seabeds, the open ocean seabed.

However, prior to the coming into force of the freedom of the seas doctrine, which I think we have demonstrated is the case here and which the Master found in our favor, prior to that doctrine coming to force you could acquire -- and this is why it's important not to get overly involved in the term "ancient" -- it can mean no more ancient than prior to the Revolution, it could be any time from ancient Greece, really, to the beginning of the 18th century.

In ancient title you acquire an original title, not by prescription but by fulfilling certain acts which were required under then prevailing international domestic law. Those acts were discovery of new territory, of res nullius, of terra nova, discovery followed by effective occupation to fortify the title.

The Master his quite explicitly found in our favor on both those issues. That, Justice Stevens and Justice O'Connor, if as we see the elements, the central elements of distinction between these two types of title, both of which can individually without the other being present lead to a finding of historic waters which would vest inland status in a particular body of water.

QUESTION: Let me clarify one thing. What do you mean by "occupation," that element of the claim, when you're talking about this area of water that we're talking about here?

MR. HERRMANN: Under prevailing international law, and by that I wish to point out to the Court, we do have a problem of so-called intertemporal law in this international law related case. Intertemporal law, and that's a well settled doctrine by now, means you must apply of necessity the international law rules prevailing at the point in time when you're looking at the evidence.

You do not apply modern international law retroactively. If you are looking at a claim of acquired ancient title, say in the 17th century, you must look to it under standards then prevailing.

Under standards then prevailing, Your Honor, occupation could have been satisfied for a marine area of this sort by effective settlement of the surrounding land masses, that's point one. That certainly occurred here. Indeed, we have evidence on the record that the British explorer Gosenoll sailed into the Sound and immediately erected a fort at the entrance to Vineyard Sound.

The second element, and it's a very important one, is exclusive and extensive exploitation of the resources of such a body of water. The Master, of course, based on voluminous evidence by Massachusetts, made findings that there was -- and I think these were almost his express words -- he said that there had been such extensive and exclusive exploitation of the resources of Nantucket Sound by the British settlers to be equal to a formal assertion of jurisdiction over those waters.

That was his finding. That would be the second element. I would point out further, Justice Stevens, that if there is one thing settled in international law and the Government has conceded this in hits brief, one undisputed way of gaining ancient title for seabed is through sedentary fisheries.

There are several well-known examples. One was cited by the Government, the so-called Caylon pearl fisheries. There are also the fisheries in the Arabian Gulf, the pearl fisheries off Sicily. There is the famous case of the Tunisian sponge fisheries.

This is one thing that's beyond question by now, that you can obtain ancient title by that means and certainly if the Master found anything at all, he found that the exploitation over the sedentary fisheries in the Sound were continuous, that they were exclusive, and that they were vital, just like in the Norwegian Fisheries case which was cited, that they were a vital element for the survival of that continuous community as our expert witness called it, a marine resource region. And, that is how one could, and indeed in this case did acquire ancient title by occupation over seabed area.

Finally, I would add that what you also have to look to is the domestic law at that time. We have pointed out, and we return now to the evidentiary issue.

The Master said quite correctly, we could not have claimed any area as ancient title unless it conformed to the then prevailing domestic British law which delineated between inland waters and open sea based upon the fauces terra doctrine, which meant, can you see from headland to headland across the entrance to any body of water. If you could, the water therein was inland. If you couldn't, it was open sea.

QUESTION: This was a requirement for ancient title as well as for other kinds of title?

MR. HERRMANN: It is under these circumstances, Your Honor, as the Master, I think, correctly found. If we are claiming ancient title in a give century and we claim it originated in colonial times, then you must of course look, as I said, to international law and the domestic law at that time and see what would the then prevailing sovereign without dispute have looked to, to international law and his own domestic law, whether he can claim the waters or not.

The prevailing law of England at that time was that you could only claim it as inland waters if the eyesight test prevailed. Of course in a later case you could theoretically, although we're not claiming that here now, to answer your question, you could claim historic title after freedom of the seas came into force, and say, we base it on the same theory, it is encloseable, but we are not doing that here.

That would be a claim of historic title ripening after the freedom of the seas came into force. We did claim that before the Special Master. We are no longer pressing that particular claim at this point in time.

We would turn, in connection therewith, to the crucial remaining issue before this Court, what is the proper standard of evidence. The Master was satisfied that Massachusetts to his satisfaction had shown all the elements of ancient title.

The only reason he could not recommend a decree in our favor was that at one point only he felt himself constrained by what he thought the implications of prior decisions of this Court were as to, quote, "clear beyond doubt evidence." We said that he felt, if it was a case of first impression, he felt that was not an appropriate standard for proceedings of this sort.

Here you have the situation, Your Honors, where an experienced federal trial judge found after a lengthy trial that he was satisfied that in colonial times you could indeed see across the eastern entrance of Nantucket Sound, which is all the case boils down to. He felt that by what he considered the implications of two prior cases, the second California case and the second Louisiana case, he felt that he could not on that ground, because that one element was not, quote, "totally clear beyond doubt," although he was satisfied, he could not recommend a finding in our favor.

The United States has tried to divert a discussion of that, what we think is the only remaining issue, by getting into this lapse question. Well, the Master never found lapse as to any perfected ancient title, nor -- it's not easy to see why he should have because the matter wasn't raised before him nor was it briefed to him.

All that was discussed by the Master was whether an historic title had ripened, whether acquisition of an historic title had later ripened. Nobody argued or briefed to the Master the question, did an already perfected Colonial, ancient title once acquired, lapse. In other words, the issue is retention vis-a-vis acquisition and the United States, it seems to me, commingles this.

They say you don't have to reach the evidentiary issue, and I submit that that is what should be reached because that's the only remaining element in the case. The United States -- let me just finish up on the evidentiary issue by saying that we've come a long way since the briefing began. If the Court will look at page 25 of the Government's reply brief, there they have expressly conceded that such a high -- so-called higher standard of evidence need only be imposed where the Government has disclaimed.

They have now given up their previous argument that it is of necessity because of the requirements of international law and domestic law. So, what the Government is really saying, and I ask the Court to ponder the implications, they can come into a case even with a disclaimer which the Court would otherwise hold to be non-dispositive because it is filed on the even of or during litigation, and they're really saying in effect, they can come into court, push a button, and by pushing a button impose a higher standard of proof on the claiming state, even though it is a disclaimer made during litigation.

I cannot -- I do not think that can be reconciled with the previous decisions of this Court.

THE CHIEF JUSTICE: Mr. Claiborne.

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

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

If I may turn from legal theory to the geographical and historical facts appurtenant to Nantucket Sound for a moment, it may be helpful to the Court. I invite the Court first to look at the chart which is appended to the Massachusetts exception, simply to have a visual picture of the area we're talking about in a more precise way.

It seems to us that when you look at that map and you look at Nantucket Island, what you see is an island in the sea, not a bay, not an extra mouth to an inlet, but an island around which there is a strait. There's a strait from the eastern entrance to Nantucket Sound between Vineyard and Nantucket Sound, and there's another strait which is indeed well a marked navigation channel going from the eastern entrance to Nantucket Sound through the Sound and out Vineyard Sound, a deep, marked navigation channel from one open sea to another open sea.

Now, I suggest that that configuration has never been found to constitute inland water by ancient title, by historic title, by juridic title, at any time except only during the exaggerated period of the Stuarts which everyone agrees cannot be relied on in this or any other case, because repudiated by England itself long before the American revolution, or alternatively, in modern times under the straight base line system used in the Norwegian case and condoned by the International Convention under Article 4, but a procedure, a method which the United States has at all times declined to follow and which this Court has determined is a matter for the Government of the United States to determine and not for the Court to review.

This configuration is wholly unlike all examples that are mentioned in the briefs and in the report in this case. It is not like Delaware Bay or Chesapeake Bay or Boston Harbor or Buzzards Bay or Long Island Sound, all of which are clear, deep indentations into the mainland, nor is it like Mississippi Sound And Chandelier Sound which this Court has characterized as cul-de-sacs, dead ends, not a straight in and out.

Despite the fact that this case has been proceeding at its usual slow pace for many years, despite the fact that this question of whether a configuration of this kind can qualify as inland, Massachusetts has to this day never suggested that English law or American law has at any time characterized such a like body of water elsewhere as inland. That seems to us a rather telling failure.

Now, turning from geography to history, we are told that the Sound was discovered in 1602 and yet from that day until 1971 there was not any specific claim to this Sound by anyone in the government in those three and a half and more centuries. No agency of government, legislative, executive or judicial, whether of the Crown of England, the Colony of Massachusetts, the independent Commonwealth, the State of the Union or the United States in all that time mentions or claims the interior center of Nantucket Sound as inland water.

The only suggestion that there might be such a claim is with respect to a 1932 statute which prohibits trolling within the Sound. We do not read that statute as claiming jurisdiction over the center of the Sound because it refers to a three-mile belt in on of its provisions. It seems to us, quite logically to me, we're claiming jurisdiction over so much of the Sound as is within three miles of any shore.

But at all events, even if we misread the statute, this Court has squarely held in the Alaska case reported in Volume 422 of the United States reports, that a claim to fishery regulation is not sufficient to establish an accession of sovereignty as inland water, and therefore fishery regulation would not suffice.

Now, in the hundreds of documents introduced in this case, spanning more than three centuries, we don't have a single one that reflects an expressed accession of of jurisdiction as inland water over the center of the Sound.

QUESTION: Well, Mr. Claiborne, it seems to me that what Massachusetts is claiming is something under a so-called doctrine of ancient title on the theory that under that doctrine it in fact acquired title in colonial times regardless of what its claims were since.

Do you concede that there is such a doctrine as ancient title which we would follow if the elements are established?

MR. CLAIBORNE: Justice O'Connor, I have to say yes and no.

QUESTION: That's not very helpful.

MR. CLAIBORNE: Well, I will attempt to explain. Yes, in that we recognize that there can indeed be a perfected legal title obtained at a time when the law was different, which may survive as a historic waters claim through the intervening change of law, provided that first the establishment of that old title is clear and secondly that it was continually asserted rather than clearly abandoned, as was the case here, in the intervening time.

And, if that is what is meant by ancient title, we have no quarrel. To the extent that Massachusetts asserts that there is some doctrine which requires less occupation, less accession of sovereignty, and which is almost never found to have lapsed or been abandoned despite very clear, unequivocal statements of repudiation, we deny that such a doctrine exists and secondly that it has ever been recognized by this Court.

I may say that Manchester versus Massachusetts sees no such example. The Court there found that with respect to Buzzards Bay where the opening is less than six miles, it met all the requirements of then international law and national law.

What is more, it was expressly closed in that way by Massachusetts legislative declaration of 1881 which had been implemented and by a map introduced in the case in this Court which showed the closure, nothing whatever reliance on ancient times.

QUESTION: All right, but if Massachusetts is correct that it acquired ancient title at one time, and if you are correct that it was abandoned later by Massachusetts at a time when the United States was not claiming it, does that mean that the title then passed to international usage and the boundaries of the United States were altered, at the time of any abandonment?

MR. CLAIBORNE: Justice O'Connor, if one assumes, contrary to our argument that there ever was a perfected claim or perfected ancient title, and that that title survived until -- or through the period when the United States became a sovereign nation, then what Your Honor suggests could indeed be the result, but it was open to the United States to reclaim that area as it did with respect to the resources of the seabed in the Truman Proclamation of 1945, and as it has with respect to fisheries in other legislation, and as it could with respect to all jurisdiction by adopting a different limit than the three-mile limit as it is free to do, or by using a straight base line method which as a matter of international law it is free to do.

So, there is no difficulty in the fact that a period, the disclaimer by Massachusetts might have for subject to the United States' ability to repair it, momentarily the boundaries of the United States. But I must confess that we do not concede that such ancient title ever was perfected and it's all very well to say that this area was discovered in 1603 but beyond that, Massachusetts has shown nothing by way of a paper -- in colonial times or since, nor has it shown any governmental acts which would amount to effective occupation of the area.

The only evidence in the case with respect to any activity here, there's no arrest, there's no warning of vessels, there's no marking of the area, absolutely nothing by any government. All we have is a quite natural, usual, traditional exploitation of the resources of the Sound by the people who live on the coast.

That happens on every coast, and here it happened on the ocean side of the Nantucket Island just as it did on the inland side, that is, on the northern side. It proves nothing, but the people who live there naturally took advantage of the whaling, the sailmaking, the fishing and the shellfish life accessible to them from where they lived. That is no governmental assertion of --

QUESTION: Mr. Claiborne, he cited a couple of cases that said, as I understood him, sedentary fishing can constitute occupation, or something to that effect. Are there such cases?

MR. CLAIBORNE: There is one such instance involving, as Mr. Herrmann correctly said, the fisheries off Ceylon in which according to Judge Jessup, that particular area has been consistently since a period B.C., been exploited by the people of Ceylon at a time when the difference between governmental and non-governmental activity may have been less clear than it is today.

But, that is a very ancient title, immemorial usage, and continuous one, very much to be contrasted with here. No precise claim, even on paper, and no activity whatever by anybody except the local inhabitants who quite naturally took advantage of what is available to them.

QUESTION: Mr. Clairborne, did you file exceptions to the Special Master's report?

MR. CLAIBORNE: We did not, Your Honor.

QUESTION: It sounds to me like your argument so far is in the teeth of some of the things the Special Master seemed to day.

MR. CLAIBORNE: Well, again, Your Honor, I must say yes and no. It is --

QUESTION: He said that Massachusetts wins unless the clear and convincing evidence standard applies.

MR. CLAIBORNE: We don't read it that way, Your Honor. We read Judge Hoffman to have said that Massachusetts has established an ancient title, not necessarily one still good, if the clear beyond doubt standard does not apply. But then, we read his evaluation of the evidence which is the title of the chapter, Evaluation of the Massachusetts Claim, beginning at page 61.

When you get to page 64 and the Judge focuses on Nantucket Sound in particular he quite clearly in our view finds the facts to be that Massachusetts has failed to prove the existence of an actual intent to establish jurisdiction over Nantucket Sound, never mind by what title.

"It is therefore" -- I'm reading from page 64, just below the middle of the page -- "It is therefore the Special Master's opinion that the Commonwealth has failed to establish that either the United States or Massachusetts ever asserted jurisdiction over the sound until Massachusetts did so relatively recently.

Turning to the next page, on page 65 of the report, the Master says, "It is unlikely that post-Colonial Massachusetts ever claimed the interior of Nantucket Sound. Further, nor has Massachusetts presented an other evidence that it had laid claim to the Sound during the first half of the 19th Century."

And continuing, "During the second half of the century Massachusetts abandoned the inter fauces terrae doctrine to delimit its seaward boundaries, substituting a strict distance test. Under this test, Massachusetts claimed only those arms of the sea whose mouths were six nautical miles or less in width. Nantucket Sound clearly does not meet this criterion."

QUESTION: Isn't this all about historic title?

MR. CLAIBORNE: I think not, Your Honor. First, the scheme of the report was such that this entire section is the conclusion of everything that goes before it. This is Section D, beginning at page 61, Evaluation of the Massachusetts Claim.

This follows, after we've had in the previous section a detail of the evidence.

QUESTION: What about the conclusion on page -- the carry-over sentence at 65 and 66?

MR. CLAIBORNE: "The Special Master therefore concludes that Massachusetts has failed to meet its burden of establishing historic title to Nantucket Sound."

QUESTION: Where does it ever -- where does this section mention ancient title?

MR. CLAIBORNE: It doesn't, Your Honor, but it mentions the evidence which would be common to both, and it seems to us, he had used the expression "historic title" to mean a claim under Article 7 of the Convention but there is no getting round the express and unequivocal finding that Massachusetts has presented no evidence of an assertion of sovereignty, and on the contrary that its own evidence proves that it disclaimed --

QUESTION: Maybe the only evidence it has it that there was a title to which it fell heir to, and I know you dispute that but do you think it then has to assert title and continuously assert title?

MR. CLAIBORNE: Well, the title -- even according to the juridical regime --I may say, on which the Commonwealth appears to clearly rely, the elements of ancient title are that there be a discovery of an area which is not yet appropriated for the general community by the doctrine of open seas, that there be effective occupation of that area, not merely a supposition that some charter may or may not by generally talking about waters --

QUESTION: Well, how do you occupy Nantucket Sound?

MR. CLAIBORNE: Well, in the same way that you would to prove historic title, by marking it, by legislating about it, by deterring or preventing foreign vessels from entering it, and by exploiting, by license from the government, the resources of the area.

None of that, nothing approaching that, is shown here. And finally, the juridical regime says that ancient title must be fortified by long usage, an element which has not been mentioned but which is stated. And so it comes to this, that ancient title is different from historic title only in that it is not originally a title founded on prescription adverse to the claims of the general community, but it must be established in some way that is notorious to the world community and it must be preserved by usage, and certainly cannot survive the express disclaimer which there is no getting around Massachusetts engaged in, first in 1849 when it declared that henceforward its boundaries would be those bodies of water as to which a closure no more than six miles was available.

That does meet the test in Nantucket Sound where the eastern closure is over nine miles in width.

QUESTION: May I interrupt you just for a moment. You are referring to the two different parts of the Master's report, which I must confess I am a little confused by.

Are you in effect arguing that the burden of proof issue that your opponent relies on is really an alternative ground for decision, that in the early part of the opinion you are saying that the burden of proof can resolve the question of whether the doctrine of inter fauces terrae applies, and he falls short because it's not clear beyond a reasonable doubt, but then later on 64 and 65 he's saying that even if the doctrine were to apply it still fails because they didn't assert jurisdiction

MR. CLAIBORNE: Or because it lacks. And we didn't invent the word "lacks." It is the Master who says, and this is -- perhaps I should have answered Justice White in this way, the bottom of page 65, it seems to me, does refer to the colonial title.

It says, the last sentence, last full sentence on that page, "Therefore, whatever rights it may have had over Nantucket Sound during the Colonial period." Now, that's got to be a reference to the so-called ancient title, "lapsed until the Commonwealth's attempt to resuscitate" --

QUESTION: That would make a whole lot of sense with the final sentence of the paragraph.

MR. CLAIBORNE: Yes, Your Honor. The expression "historic title," after all, is very close to the "historic waters" which is the term this Court and the International Convention have both used. And of course an ancient title is a historic title. It's one based on history.

QUESTION: Mr. Claiborne, if you look at page 51 of the Master's report, at the end of the paragraph, the one over paragraph at the top, the Master says, "Massashusetts can establish an ancient title to Nantucket Sound only if the Supreme Court holds that the clear beyond doubt standard is inappropriate in this proceeding."

Then he starts his Section 2, The History of Historical Geography, which begins with the explanation that as an independent basis for its claim Massachusetts argues that even if that title didn't pass under the Royal Charters or as a result of the doctrine of inter fauces terra, Massachusetts nevertheless has title by virtue of history and usage.

So, I concluded, frankly, in reading his report that the language back on page 65 was a resolution of this historical claim of continuous occupation and that he had dealt with the ancient title claim in the language that I read to you in the middle of page 51.

MR. CLAIBORNE: Justice O'Connor, I must confess that the report seems to us, as to others, less than absolutely clear. I think the only way you can reconcile it is to read the passage which Your Honor referred to on page 51 as meaning that the perfection of the ancient title has not been shown if the clear beyond doubt standard is applicable without prejudice to the second question, whether that title, if effected, survived.

And, that second question is dealt with under the general heading, in subpart D, I think, repeating, is not a discrete discussion of historic title. It's a genuine discussion of the entire Massachusetts claim.

It doesn't say Evaluation of the Massachusetts Historic Claim, but the whole of it.

QUESTION: Mr. Claiborne, under D-1, Vineyard Sound, the first sentence says, he concludes that there is historic title to that. Then he goes through and discusses why they have historic title, and then Nantucket Sound, it talks about historic title.

MR. CLAIBORNE: However one reads the Master's report, it does seem to us that the Master has made a finding, on page 65, that whatever rights over Nantucket Sound accrued during the Colonial period, which he suggests were none but whatever they might have been, have long since lapsed by renunciation.

QUESTION: Well, that assumes that --

MR. CLAIBORNE: That finding may in the Master's mind not be relevant to ancient title. We say, whatever he might have thought about that, his finding is a matter of fact.

QUESTION: His finding is, but that -- you want to say that the lapse idea applies to ancient title as well as to historic title?

MR. CLAIBORNE: It's professed by -- it's conceded by Massachusetts that ancient title can be lost, and since ancient title requires to be fortified by long usage, it must follow that it is lost by non-usage and all the more so by express disclaimer.

QUESTION: If you read page 51 as the end of the discussion of ancient title, it's a strange posture to leave the case in if the Master thought that ancient title had lapsed. It wouldn't make any difference what standard of proof there was.

MR. CLAIBORNE: Well, one can argue that the rest of the report is superfluous if Massachusetts has proved ancient title.

QUESTION: You are going to argue the standard of proof?

MR. CLAIBORNE: Well, with respect to the standard of proof, we submit that this Court has very clearly, and that its Masters have followed what seemed to them the clear lead of the Court, and that the Court has approved the Masters' report, to the effect that when the United States in its sovereign decision disclaims an area never mind when it disclaims it, it is going to be ineffective if it comes too late in the sense that it's not dispositive, but it at least has this effect, so the Court has said, which is to require the State to prove that its historic claim, and that should apply whether it's an ancient title or a so-called historic title, is quite clear and that it is therefore quite wrong and unfair for the United States to come in so late and attempt to defeat it.

And that much is due to the decision that the United States, to define its borders in a certain way. It seems to us that, as it did to the Master here, that this Court has quite clearly fixed that standard when there is a disclaimer, and here there is a disclaimer, no question about the fact that the United States is and has disclaimed title to Nantucket Sound or to the center of it.

That disclaimer may or may not be belated, but it does at least require that the states proof be at a higher standard, and that is not an extraordinary proposition. Indeed, what is extraordinary is that the United States isn't free to fix its boundaries like every other nation. It's only the oddity of our federal system, nothing to do with international law, and one can't look to international law for this, that permits a state to claim adversely to the --

QUESTION: You are saying you concede that the State may do that if it is proved by clear and convincing evidence that it had -- or beyond that evidence, that it had ancient title?

MR. CLAIBORNE: And indeed, that we don't dispute and we must concede that the Court has -- but a standard seems to us as we explain in the last section of our brief, to be that clear.

QUESTION: Was it urged by the United States before the Special Master that the notion of lapse did apply to ancient title?

MR. CLAIBORNE: Your Honor, we probably didn't use the word "lapse," but we very clearly pointed out and argued at great length that Massachusetts had itself disclaimed through the adoption judicially of a test that wouldn't close Nantucket Sound, and mainly through the legislative --

QUESTION: What did the Master do with that claim?

What did --

MR. CLAIBORNE: He seems to us, on pages 64 and 65, to have agreed with us entirely that the --

QUESTION: Why did he leave us with this circular statement on page 51?

MR. CLAIBORNE: I can only repeat that it seems to us that what occurs on page 51 is a step in the process and not a final conclusion with respect to the survival of ancient title.

It's a statement with respect to the vesting of title back in the Colonial days, and then the ultimate conclusion is, it doesn't matter whether it did or didn't because in any event it has been disclaimed.

We also pointed out that the United States had repudiated or contested or denied any title to Nantucket Sound as the Master himself finds on pages 64 and 65 on which he says, "Neither the United States nor the State of Massachusetts" -- never mind the colony of Massachusetts -- "at any time appears to have claimed the center of Nantucket Sound."

He says that as a matter of fact, and whether he's thinking in terms of ancient title or not, that finding, it seems to us, is beyond doubt and indeed it's stated unequivocally. It's not stated as an issue.

QUESTION: Mr. Claiborne, I'm curious about this clear beyond doubt standard. Do you feel that's more stringent than the beyond a reasonable doubt standard employed in a criminal case?

MR. CLAIBORNE: I wouldn't have thought so.

QUESTION: You would not?

MR. CLAIBORNE: I would not.

THE CHIEF JUSTICE: Anything further, Mr. Herrmann?

MR. HERRMAN: Yes, Mr. Chief Justice.

THE CHIEF JUSTICE: You have four minutes remaining.

MR. HERRMANN: Thank you, Mr. Chief Justice.

ORAL ARGUMENT OF HENRY HERRMANN, ESQ. ON BEHALF OF THE PLAINTIFF -- REBUTTAL

MR. HERMANN: I would like to say about the question of a so-called dispositive United States disclaimer, does it really matter if one terms a litigative disclaimer, as I call it, a disclaimer made either on the eve or during litigation to be dispositive, or whether the United States can merely thereby, like dialing an air conditioning, ratchet up the level of proof needed and thereby dispose of a claim which, as in this particular instance, the finder of fact felt had been satisfactorily proven.

It seems to me as a functional equivalant --

QUESTION: You're just saying it must be -- that's unfair, that's about your submission, that would just be unfair?

MR. HERRMANN: No, Justice White. I don't think --

QUESTION: Don't you think the United States has the power to disclaim it at that point, in fact it has the power at any other time?

MR. HERRMANN: It has the power to disclaim, but it seems to me, Your Honor, that the issue is what effects this Court will give to an exercise of such power, and it seems to me that the prior decisions of this Court and particularly in the second Louisiana case, page 77, this Court has made it clear that it and only it will decide in the individual instance what effect to give to this claim.

QUESTION: What would you say if the disclaimer had been ten years before this case began? What would you say about your standard of proof?

MR. HERRMANN: If the disclaimer had been unequivocal, clearly communicated to foreign nations, and had preceded the outset of the litigation by a full decade, I would say we would have a serious problem, Your Honor.

QUESTION: Well, what do you mean by that?

MR. HERRMANN: By that I mean --

QUESTION: Do you mean, the beyond doubt standard applies?

MR. HERRMANN: No, because I don't think the Court meant, if you look at the Louisiana decision, I don't think the Court meant to use the beyond doubt standard in such a fashion. I think as I respectfully read the Court's decision, it meant that it would use the "clear beyond doubt" standard to determine -- it was really analogous to a summary judgment situation.

I think the operative discussion is, what dispositive effect, if any, do you give to the disclaimer as a matter of substantive law. If the disclaimer had been in the bona fide exercise of the foreign affairs powers of the United States, well predating the reservation of jurisdiction by this Court, then it might perhaps be fairly argued by the United States that it has now --

QUESTION: So, you think the Special Master read our cases completely inaccurately about the standard?

MR. HERRMANN: I think, Justice --

QUESTION: He relied on it. He said that, you haven't proved it beyond a reasonable doubt.

MR. HERRMANN: Well, he said -- I must submit that he was quite cautious in what he said. He said that if it were a case of first impression, he would agree with us. Secondly, he said, impliedly he felt constrained, but he certainly came as close as one can get to a -- and saying, take this to the full Court, this seems to me a judgment call.

I think the Master was really as cautious as a Special Master can be, not foreclosing that issue, and I think that to give -- again, and I must again point to the distinction between acquiring historic title and whether an ancient title prevails. As to acquiring historic title, if the title had not ripened yet at the time the United States disclaims outside litigation, prior to litigation, then that might as an evidentiary matter fairly be said to prevent the ripening of a claim as an evidentiary matter under public international law, if the sovereign disclaims.

But as to ancient title, I think this Court has several times indicated it would look with considerable caution, considerable suspicion, at an attempt to retrench the territory of states already vested. So, if the ancient title as the Master found was already perfected, the question still remains, even if there had been according to your hypothetical, Justice White, a bona fide non-litigation related, non-litigation contemporaneous disclaimer by the United States, it would nevertheless not operate against an ancient title.

My time is up.

THE CHIEF JUSTICE: Thank you gentlemen. The case is submitted.

(Whereupon, at 10:58 o'clock a.m., the case in the above entitled matter was submitted.)