ILLINOIS v. KENTUCKY
Argument of Rickie L. Pearson
Chief Justice Rehnquist: We'll hear argument now in No. 106 Original, the State of Illinois v. the State of Kentucky.
Mr. Pearson: Mr. Chief Justice, and may it please the Court:
In 1986 Illinois filed a complaint against the Commonwealth of Kentucky in this original action.
In the complaint Illinois alleged that Kentucky had directly infringed upon its sovereignty by exercising its boating and fishing laws north of the 1792 low-water mark on the northwestern side of the Ohio River.
Prior to this litigation the 1792 low-water mark with respect to Illinois had never been plotted, designated, or otherwise marked.
And prior to that action there had never been any boundary dispute between Illinois and Kentucky or any recurring litigation.
In the answer Kentucky denied that it had directly infringed upon Illinois' sovereignty.
Instead, Kentucky asserted that its boundary on the Ohio River is the low-water mark on the northwestern side of the river as it exists from time to time.
In other words, the current low-water mark.
Also in the answer Kentucky raised two affirmative defenses, one affirmative defense being that of acquiescence, the second affirmative defense being that of latches.
Kentucky raised the defense of acquiescence because it wanted to invoke and employ the basic teachings of Georgia v. South Carolina, and that is Kentucky wanted to maintain, and to this day wants to maintain, the status quo on the river.
Kentucky submits that the boundary between the two States, as it has been for 168 years, is the low-water mark on the northwestern side of the river.
By bringing the complaint, Illinois in essence seeks to change this boundary and make it the 1792 low-water mark.
Kentucky submits that there are many practical considerations with respect to utilizing the low-water mark on the north side of the river as the boundary between the two States.
Unknown Speaker: Now, when you say low-water mark you have to tell us low-water mark at what time.
Mr. Pearson: As it exists from time to time, or currently.
Unknown Speaker: The changing low-water mark, not the 1792 low-water mark.
Mr. Pearson: That's correct.
Not the 1792 low-water mark, but the prevailing, current low-water mark.
Unknown Speaker: Mr. Pearson, are you asking us to overrule Ohio v. Kentucky?
I mean, you do not accept that Ohio v. Kentucky sets forth the proper rule, even without all the acquiescence?
Mr. Pearson: Your Honor, we're not asking this Court to overrule Ohio v. Kentucky.
We think that the case before this Court can be determined independently of that particular situation.
Unknown Speaker: --And must be for you to win.
Mr. Pearson: That's affirmative.
If you look at Ohio v.--
Unknown Speaker: Would you object if we were to overrule that area case?
Mr. Pearson: --No, sir.
We would not object if you were to overrule that case.
Unknown Speaker: Well, there was a dissent in that case, wasn't there?
Mr. Pearson: There was a dissent in that case.
And might I add, it appeared to favor Kentucky with respect to its argument here today.
But there are some historical antecedents and factors that go into why Kentucky has recognized the ever-changing low-water mark on the Ohio River for 168 years.
It all starts back in 1818 when you look at the Illinois Enabling Act, the 1818 constitution of Illinois, the 1848 constitution of Illinois, and the 1870 constitution of Illinois.
All these documents, when viewed, conclude that the boundary between Illinois and Kentucky is the low-water mark, as those documents put it, along the northwestern shore, meaning the bank.
Perhaps maybe the most important notification that Kentucky had with respect to the low-water mark on the northwestern side of the river came from an 1849 report of the Illinois Joint Select Committee to investigate Illinois' boundary on the Ohio River.
That legislative body concluded that the boundary between Illinois and Kentucky is the low-water mark on the northwestern side of the river.
Kentucky submits that the conclusion of the Joint Select Committee from Illinois is in keeping with the 1820 case of Handly's Lessee v. Anthony.
In the Anthony case the court was called upon for the first time to construe the 1784 Virginia Deed of Cession which gave lands to the United States of America, and thereby created Kentucky, Illinois, Indiana, and Ohio.
In construing the 1784 cession, the court in Anthony's Lessee concluded that the boundary for Kentucky on the Ohio River is the low-water mark on the northern side of the river, or to put it in another term used by the court, the water's edge.
But there were many factors why the court reached this conclusion, one of them being that it would be convenient for future population, because at that time the United States was growing.
Secondly, it was an identifiable boundary mark between the States.
With that in mind, Kentucky submits that by using the low-water mark on the northwestern side of the river as it exists from time to time, or currently, or as it prevails, is the most practical approach to resolving the boundary dispute.
Unknown Speaker: Mr. Pearson, if you're not asking the Court to overrule Ohio against Kentucky, then your argument has to be based on acquiescence, does it not?
Mr. Pearson: --It does, Your Honor.
Unknown Speaker: And how much of a part does the practicalities of the thing play in acquiescence?
I mean, don't you have to show that Illinois consented to this boundary, basically?
Mr. Pearson: You do.
You have to show that they acquiesced in this particular boundary.
You sure do.
Unknown Speaker: And if they acquiesced, what difference does it make whether it's a practical boundary?
And if they didn't acquiesce, what difference does it make whether it's a practical boundary?
Mr. Pearson: Your Honor, I think it's... it's very important that it's a practical boundary for the simple fact that it would best serve the public convenience.
Unknown Speaker: But what has that got to do with acquiescence?
Acquiescence is a state of mind exhibiting your willingness to abide by a particular thing.
Mr. Pearson: Yes, Your Honor.
I think if you look back at Vermont v. New Hampshire, which was decided in 1933, the court in Vermont v. New Hampshire looked at the practical considerations for the public convenience.
They looked to see, first of all--
Unknown Speaker: Did that... did that case turn on acquiescence?
Mr. Pearson: --Yes, it did, Your Honor.
And it had to do with the location of the boundary between Vermont and New Hampshire on the western... the western low-water mark on the Vermont side of the Connecticut River.
It turned on acquiescence.
The court there looked at the conduct of the inhabitants and the issue of acquiescence.
And acquiescence, with respect to whether or not to use the largely identifiable western low-water mark on the Vermont side of the Connecticut River, looked at the practicalities of it.
Kentucky would submit that looking at the practicalities in this situation, likewise, is very important.
I think if we look at some of the practicalities and how they have impacted upon the interaction between officials from both Kentucky and Illinois, then I think we can bring home closer the doctrine of acquiescence.
Unknown Speaker: Well, at least it makes it more sensible to argue acquiescence if it's... if acquiescing was in the public interest or if it was practical to do so.
Mr. Pearson: I would agree, Your Honor.
That's precisely our point.
For instance, if we look at the bridges that cross the Ohio River between Illinois and Kentucky, there are four of them.
Basically a bridge that was constructed in 1929, the Brookport bridge, 1938 the Cairo bridge, which, that's what they call it in Illinois, they don't call it Cairo, the 1956 Shinytown bridge, and the 1974 Interstate 24 bridge.
With respect to the Interstate 24 bridge, in 1971 a construction agreement was entered between Illinois and Kentucky, and with respect to that agreement it was concluded that the boundary between the two States would be the north normal pool line, loosely translated the low-water mark.
It did not say, it did not specify 1792.
Kentucky submits that it's talking about the prevailing or current normal pool line on the river.
Likewise, we see the same kind of situation with respect to Illinois and Kentucky entering into a maintenance agreement regarding the Cairo bridge, which was constructed in 1938.
In 1954 Kentucky and Illinois officials corresponded regarding where to place the sign on the bridge indicating when you are going to be entering Illinois or leaving Kentucky.
And between this correspondence one of the district engineers for Illinois concluded, after looking at the 1936 construction plan, that the area located on that construction plan was about as close enough to the theoretical line as it could be.
Kentucky had that 1936 plan analyzed by one of its bridge engineers and of course that plan indicated that the boundary was at Pier B, Station 20 plus 10.
Notwithstanding the fact that that's construction talk, the bottom line is when you look at it it's the same as the low-water mark on the northern side of the river.
Consequently Illinois has been on notice for quite some time, especially with respect to the 1849 agreement, a Joint Select Committee conclusion that the low-water mark on the northwestern side of the river is indeed the boundary.
Likewise there was other situations which have come into play to show that Kentucky is exercising its jurisdiction and its dominion to the north low-water mark on the Ohio River.
For instance, Kentucky counties that bound... that border on the river have the right in the authority under Kentucky's 1810 statute, and the case law that has interpreted it, to lease the river bed to the thread or the middle of the stream.
As a result of that subsequent decisions by the Supreme Court of Kentucky, or the highest court in Kentucky at that time, concluded that the State of Kentucky likewise has the authority to lease the bed of the river from the middle of the stream to the low-water mark on the northwestern side of the river.
And that's exactly what Kentucky has done.
Before the Special Master there is evidence that Kentucky has entered into agreements with private companies for the leasing of the river bed for dredging of sand and gravel.
Unknown Speaker: Mr. Pearson, I guess Kentucky has boundaries along the Ohio River with Ohio and--
Mr. Pearson: Indiana.
Unknown Speaker: --Indiana as well.
Mr. Pearson: That's correct.
Unknown Speaker: And so I assume if somehow we were to agree with you that there has been acquiescence here for the Illinois boundary, that would mean the boundary is someplace else with respect to Indiana and Ohio?
Mr. Pearson: That's correct.
In other words, if I understand your question, it would create an inconsistent boundary.
Unknown Speaker: Yes, quite.
Mr. Pearson: With respect to that conclusion... which it would.
It would create an inconsistent boundary.
But there are some factors to be concerned.
Maybe perhaps the bright-line principle that would allow Kentucky to fashion the boundary as it argues today, which has been recognized for 168 years, is California v. Nevada.
I think the bright-line principle in that case is that there is no particular relationship between the origins of a boundary and the legal consequences of acquiescence in that boundary.
In other words, for 168 years it has been no problem between Illinois and Kentucky.
Even as I speak today, the boundary on the river which the parties or the people who work on that river recognize, is the low-water mark.
We haven't had any problems with it for 168 years, even though it has been different than the 1792 low-water mark.
I think the... at present the Kentucky legislature, with respect to promulgating in its revised statutes the description of the boundary now, talks in terms of allowing the low-water mark on the north side of the river to intersect with the present 1792 low-water mark as we know it from Ohio v. Kentucky, and of course Kentucky v. Indiana.
Merely, the point being is that there has been no problem up until this lawsuit was filed regarding the boundary between the two States.
At present Kentucky enforces its boating and fishing laws on the entire river to the northwestern side of the river at the low-water mark.
For instance, with respect to fishing licenses, the testimony before the Special Master showed that if an individual is fishing in the Ohio River, then Kentucky officials will check that person for his or her license.
But if that person is fishing from the bank the Kentucky officials will not.
Moreover the officials from Kentucky testified that there are no Illinois water patrol or Fish and Wildlife personnel on the river.
Only Kentucky is the State that patrols that river and enforces the fishing and boating laws on that river.
Unknown Speaker: Mr. Pearson, isn't it possible that the boundary is actually on the land north of where the water is, under Illinois' theory?
Mr. Pearson: No, Your Honor.
Unknown Speaker: I mean, maybe... isn't it possible the river has moved to the south rather than to the north?
Mr. Pearson: I think, Your Honor, I think you're speaking with respect to a survey that was done by Illinois with respect to that.
We don't... we cannot concede that that is possible or that is the case.
We don't... we don't know the impact with respect to what dams have done to the river and perhaps that issue might be premature and be appropriate if this Court concludes that Kentucky does not prevail.
Unknown Speaker: No, my point is that all this activity rely on... say Illinois allowed all the policing and what went on on the water itself.
Maybe they assumed that was part of Kentucky because they don't really know exactly where the 1792 boundary is.
Mr. Pearson: That may well be true, Your Honor, but in the complaint they allege that it was the 1792 low-water mark.
I have to take them--
Unknown Speaker: Right, but I'm just saying if you don't know where it is, conceivably... I don't know, I don't know anything about the geography.
But conceivably the 1792, the river was 10 miles north of Cairo.
Mr. Pearson: --It could have been.
And I think you're talking about basically the principles of accretion and erosion.
Unknown Speaker: Yeah.
Mr. Pearson: Kentucky submits, just as it has with respect to Illinois recognizing the low-water mark on the northwestern side of the river, because it has waited 168 years in which to bring this action, that it has in essence acquiesced likewise to the application of the principles of accretion and erosion.
Unknown Speaker: If I didn't know where the 1792 low-water mark was, I guess I would just operate on the assumption that it was where it is now, and therefore my operating on that assumption would not demonstrate any acquiescence whatever.
It would demonstrate only a mistake of fact, perhaps.
I mean, you have to demonstrate an acquiescence in the legal principle, right, not just in a fact, but in the legal principle.
Mr. Pearson: --And I think we have with respect to inaction for a long period of time.
Unknown Speaker: Well, how does--
Mr. Pearson: That's one of the considerations.
Unknown Speaker: --How would it hurt Kentucky?
You just don't know how it would hurt you, Kentucky, if Illinois won?
Mr. Pearson: I think it could hurt us in many regards.
Unknown Speaker: Okay, but you don't know how?
Mr. Pearson: I think I do.
If Illinois were to prevail, is that your question?
Unknown Speaker: Yeah.
Mr. Pearson: I think I would.
First of all--
Unknown Speaker: Tell us.
Mr. Pearson: --First of all it would be with respect to the issuance and the selling of fishing licenses.
Number one, which--
Unknown Speaker: Well, how do you know?
Mr. Pearson: --Well, if the boundary... let's predicate on the assumption.
If the boundary is the 1792 low-water mark as Illinois alleges in its brief, which means that the boundary is no longer the shoreline but moves out into the waterway, then obviously because of the geographical location of that boundary which Illinois says is the boundary between the two States, we're going to give up some of the river.
And consequently fishing--
Unknown Speaker: For purposes of fishing jurisdiction?
Mr. Pearson: --Fishing jurisdiction.
Maybe for that fact dredging with respect to sand and gravel, if they want to dredge along the northern... northwestern shore.
Unknown Speaker: But you don't know, though, you just don't know.
You just have to surmise that--
Mr. Pearson: That would appear to be, based upon the historical facts on the river that that's a high probability.
I don't know, but--
Unknown Speaker: --Of course there might be a high probability that the boundary, that the river has moved south, in which event you wouldn't lose anything in the river.
Mr. Pearson: --That's true.
Of course there's a probability that it could have moved north.
And if it has then we probably lose a lot more.
But the movement of the river, I think at this point in time with respect to trying to say that it's the 1792 low-water mark or that it's the low-water mark on the northwestern side of the river, perhaps is a little premature and would definitely be a vast and important consideration when trying to geodetically plot where we think it is if Kentucky does not prevail.
I think that's where it has its most important function.
Unknown Speaker: But isn't it correct that we... the record does not yet tell us which direction, if either, the river has moved?
Mr. Pearson: That is correct.
Unknown Speaker: So isn't... it seems to me it's a 5050 proposition.
They want a certain line, but you don't know whether that... it doesn't seem to me you can really tell whether that line will hurt one State or the other.
Mr. Pearson: Well, if... that's, that's true, but I think that there is a certain line, and that's the line that Kentucky and both Illinois have recognized for 168 years.
Unknown Speaker: Well, but you're saying the certain line is a line that changes from time to time, and wherever it is at a particular time, that governs.
Mr. Pearson: That's correct.
Unknown Speaker: And they are arguing for a permanent line.
And we don't know whether the permanent line is more favorable to one State or the other.
Mr. Pearson: Surely we know if it does move more northward--
Unknown Speaker: Well, if it moves north it's more favorable to your side, if it moves south it's more favorable to the other side.
Mr. Pearson: --That's correct.
Unknown Speaker: --Has the boundary line been established, to your knowledge, between Ohio and Kentucky?
Mr. Pearson: It has, Your Honor.
Unknown Speaker: And how did that work out?
Mr. Pearson: That worked out as the result of a stipulation--
Unknown Speaker: And the river was moved south some places and north in other places, is that it?
Mr. Pearson: --That's correct, Your Honor.
I think what we have--
Unknown Speaker: And the same with Indiana?
Mr. Pearson: --Same with Indiana, Your Honor.
Unknown Speaker: It may be the same in your place.
Mr. Pearson: --I think what we have right now--
Unknown Speaker: You may gain something.
You may gain some ground.
Mr. Pearson: --Well, the way the parties--
Unknown Speaker: Actual ground.
Mr. Pearson: --The way the parties stipulated was that when it gets too close to ground they move it 100 feet out.
That's not to Kentucky's benefit.
Right now the boundary with respect to Ohio and Kentucky, as it has been agreed between the parties, takes a zig-zagging course.
No one knows exactly still where it is.
And when it gets too close to land the parties by agreement stipulated that it would move out 100 feet.
Unknown Speaker: I know, but that--
Mr. Pearson: We didn't pick up--
Unknown Speaker: --That doesn't follow the 18... the--
Mr. Pearson: --Handly's Lessee in 1820?
Unknown Speaker: --Yeah.
Mr. Pearson: It does not, Your Honor.
Unknown Speaker: --Because if you... I would think that if the river moved a certain direction and the boundary line is that old low-water mark, it would be up on the land and you would be having some land.
Mr. Pearson: I think perhaps the boundary as we know it based upon the 7... the 1792 low-water mark with respect to Ohio and Kentucky has resulted purely from stipulation and agreement between the States.
And so they tried to do as best they could with what they could find, even with regard to speculation by knowledgeable surveyors as to where they think the boundary is.
Kentucky didn't pick up anything as a result of that.
Unknown Speaker: Mr. Pearson, if we don't know where the 1792... I mean, it's not in the record.
You don't know.
We don't know.
I suppose the fellow who put up the sign on the bridges didn't know either.
Any of these acts of acquiescence that you're alleging, does any of them involve a situation where somebody knows where the 1792 line was, but nonetheless allows... allows jurisdiction beyond it?
Mr. Pearson: No, Your Honor.
Unknown Speaker: Not a single one?
Mr. Pearson: It does not.
Unknown Speaker: So as far as appears, it has just been the operating assumption of Illinois that the boundary... the boundary is... was where it is--
Mr. Pearson: No, Your Honor--
Unknown Speaker: --which is a fair enough operating assumption.
It may have gone in either way.
Mr. Pearson: --I don't think it's been an operating assumption, Your Honor, especially if you look at the 1849 Illinois Joint Select Committee and what they did.
That was their job to make a determination where the boundary is.
They concluded it's the low-water mark on the northwestern side of the river.
They had an ample opportunity at that time to say, oh, it's the 1792 low-water mark.
They did not find such.
Consequently, I think Kentucky has correctly utilized the low-water mark and Illinois has acquiesced to it being the 17... not... being the low-water mark on the northwestern side of the river.
That's true, locating it would probably be extremely difficult.
The parties in the two prior actions stipulated where they thought maybe it would be.
With respect to the... Illinois' complaint I think also points it out.
Illinois in its complaint alleges that Kentucky directly infringed upon its sovereignty by exercising its jurisdiction or dominion to the shoreline.
Once again, I think that is indicative of the fact that it has always been that.
There is no guessing for people who work and live on that river everyday.
There is nothing about maybe geodetically plotted the river runs, the boundary runs this way or meanders that way.
When a person is on the riverbank fishing or a person puts that pole in the water, they know where it is.
To give you another example as to how Kentucky has exercised dominion and control over the river, from 1946 to 1988 Kentucky had a special license called the Ohio River Commercial and Sport Fishing license.
This license was purchased exclusively and available only for residents of Illinois, Ohio, and Indiana.
We sold it exclusively to them so they could fish the Ohio River.
In 1988 the regulations were amended such that Kentucky would then have a new license called a nonresident fishing license, meaning that Illinois residents could purchase the license, just like any other resident of a... from a State other than Kentucky.
And, but in either case Kentucky was selling those licenses particularly to Illinois official... Illinois individuals or inhabitants so they could fish on the river.
This once again shows you what has been going on for quite some time on the river in terms of exercising jurisdiction over the river to the low-water mark.
To show you one other example, Kentucky's fishing laws allows that it be--
Unknown Speaker: Well, even in that... even on that example, if any portion of the river in which they intended to fish was south of the boundary, they'd need a Kentucky license.
Mr. Pearson: --If it's south of the low-water mark.
Unknown Speaker: Right.
Mr. Pearson: That's correct.
Unknown Speaker: So I would think most fish... I don't know where the, where you get the most fish out of this river, but I would think--
Mr. Pearson: I don't either.
Unknown Speaker: --most people would need a Kentucky license, no matter... unless the boundary had moved, you know, the whole breadth of the river.
Another question occurs to me--
--And especially since they don't know where the boundary is any more than you do.
They know there are a lot of Kentucky game wardens out there and they want to--
Mr. Pearson: Of course if they fish north of the low-water mark, one would have to assume they would have to get an Illinois license, but right now we're selling those licenses with respect to having accessibility to the Ohio River.
Unknown Speaker: --What would happen under your view of the case if Kentucky decided to fill out to the middle of the river and cause the river to bend farther to the north?
Would they acquire territory by doing that?
Mr. Pearson: --I think we have to first classify what that conduct would be by Kentucky as to whether or not it's some kind of accretion or whether or not it's evulsive in nature.
Because if it's evulsive in nature, and is sudden, which usually is in terms of an earthquake, then of course because the river would shift, the shift of the river would not divest the States that had certain properties--
Unknown Speaker: So your view isn't that the proper line is as it exists from time to time.
It's as it exists from time to time, excluding all examples of evulsion.
That's your theory?
Mr. Pearson: --That is.
Unknown Speaker: So you... even under your theory you've got to go back 100 years and find out how many evulsive changes took place, don't you?
Mr. Pearson: Well, we have... we have an affidavit indicating from our surveyor that the river has not changed very much at all.
Unknown Speaker: Very much.
But if there are any evulsive changes, in order to find the boundary you would have to know what they were.
Mr. Pearson: Of course finding some of that evidence is one of the problems we have because of the inaction on the part of Illinois in bringing suit 168 years later.
It has a deleterious effect upon the quality of evidence presented.
I think that's another practical consideration with respect to whether or not acquiescence has been shown.
Finally, I think I'd like to conclude by indicating that when a person drowns in the Ohio River, if that body is located in the river the Kentucky coroners will exercise jurisdiction over it.
However, Illinois coroners will not.
If the body is brought to the bank on the Illinois side they will exercise jurisdiction over it.
Sometimes the Illinois coroners will seek the permission of the Kentucky coroners to exercise jurisdiction over a body.
Unknown Speaker: What else would you expect them to do?
I mean, if it... if the 1792 boundary were the line, how would you expect them to behave differently?
It would seem to me if I were a coroner I would say, yeah, I know it's the 1792 line, but nobody knows where the 1792 line is, even Mr. Pearson.
He's been working with this case for a long time.
He doesn't know... I'll just assume that it is now where it was then.
Isn't that the way you'd operate?
Mr. Pearson: Well, I think, Your Honor, the answer to that question is the practical choice of all, the low-water mark on the northwestern side.
Then you don't have to guess at all.
Just like with... in... with the Connecticut River.
There would be no guessing.
There would have to be no assumptions.
With that in mind, Your Honor, if there are any more questions--
Unknown Speaker: Thank you, Mr. Pearson.
Mr. Brunsman, we'll hear now from you.
Argument of John Brunsman
Mr. Brunsman: Mr. Chief Justice, and may it please the Court:
I'd like to begin this afternoon by talking a little bit about the 1792 low-water line, whether anyone knows where it is or not.
I think that the record does show that Indiana, Ohio, and Kentucky all resolved their boundary dispute following this Court's 1980 decision by using a line depicted on a series of U.S. geological Survey maps showing the 1792 low-water mark, and that line was based on surveys done by the Corps of Engineers about the time of 1896 to 1906.
They did those surveys before they built the dams on the river that have raised the level of the river that have really caused the problem that we have here today, and the parties agreed that was the best existing representation of the 1792 line.
Unknown Speaker: How did the 1896 surveys deduce the 1792 low-water line?
Mr. Brunsman: It's obviously, Your Honor, it's not exactly.
They just... the parties determined that's the best approximation they could ever come up with.
Unknown Speaker: Well, so what you're saying is that the 1896 survey didn't purport to show the 1792 low-water mark; it showed the 1896 low-water mark?
Mr. Brunsman: It showed... it used an average of gauge readings on various parts of the river going back a number of years before that, up to 50 years before that.
What it did was get a mean low-water mark over a period of years, and--
Unknown Speaker: 50 years preceding 1896?
Mr. Brunsman: --Exactly.
And the 22 U.S. Geological Survey maps showing the Illinois-Kentucky section of the boundary are part of the record in this case.
They are filing No. 44.
Like the maps between Kentucky and Indiana and Ohio, they all show the boundary as the low-water mark some distance south of the contemporary northern shoreline.
It varies anywhere from 100 feet to some places past the middle of the river.
There are three exceptions to that.
There are three places where there were former islands in the river that have now become attached to Illinois.
Illinois concedes those are part of Kentucky because they were islands originally, so that 1792 low-water mark would have been north of them.
I submit that these maps have been in existence, many of them have been in existence since the 1950's, that Kentucky had some notice, some idea of where the 1792 low-water mark was, just as Illinois was put on notice by those maps.
Unknown Speaker: If you use a changing low-water mark as the boundary, what's the law if a dam is built or the low-water mark is changed by an act of one of the States?
Mr. Brunsman: I believe that there are cases that indicate that you can have in effect an evulsive change created by manmade intervention.
In fact Illinois resolved a dispute informally with the State of Missouri using just that principle.
The Corps of Engineers had built a dam there--
Unknown Speaker: Well, what about the low-water mark?
Suppose the low-water mark is always much higher after a dam?
If the normal rule applies, is there now a new low-water mark, even though it's manmade?
Mr. Brunsman: --Assuming that we had a case other than Ohio v. Kentucky?
Unknown Speaker: Yes.
Mr. Brunsman: I would assume that would be a new low-water mark, because that's... a low-water mark would be the point the river recedes in its lowest stage under existing circumstances.
That would be one definition.
Unknown Speaker: Well, if you knew where the 1792... I'm sorry, you did know where it was.
You should have been more careful about where you put your bridge signs and things of that sort.
Mr. Brunsman: Well, Your Honor, I don't think that a bridge sign is the sort of thing that you use to deprive a State of what would otherwise be its legal jurisdiction.
I think the letter that Mr. Pearson talked about, the author said well, this is close enough to the theoretical State line for our purposes.
He was putting up a sign that said you're leaving Kentucky and entering Illinois.
I am sure he would have been quite surprised to consider that he might be determining a State boundary for all time by writing that letter.
I don't think that's the sort of situation or the sort of fact you would rely on in establishing acquiescence.
And in discussing the facts in this record I'd like to turn at this point to the various Kentucky authorities since 1890 that have recognized the 1792 low-water mark to be Kentucky's boundary.
In fact, starting in 1890 that was Kentucky's position when it came to this Court and argued the Indiana v. Kentucky case.
In that case Indiana suggested that it was the contemporary low-water mark.
This Court disagreed, siding with Kentucky, and said the decisive question is really the line as it existed in 1792, and that it was fixed at that point and wouldn't change thereafter.
So beginning as early as 100 years ago Kentucky authorities themselves have acknowledged the 1792 line.
Following that decision there have been a number of Kentucky authorities, the earliest is a 1916 Kentucky case where the question was whether or not a small island in the river was within the northern boundary of Kentucky.
That Kentucky court cited Indiana v. Kentucky and said the boundary is defined as the low-water mark as it existed when Kentucky became a State.
And that case, I would submit, is of significance to the present controversy since the island was located in the river near Mound City, Illinois.
So in that Perks v. McCraken decision we have explicit recognition by Kentucky that the 1792 line applies to that part of the river between Illinois and Kentucky.
Unknown Speaker: Mr. Brunsman, did something occur that prompted Illinois to file the suit that it did after all these years?
Mr. Brunsman: --I think it was the resolution... the resolution of the earlier cases in 1980, and then I believe the actual maps weren't completed showing a line until 1985.
I think that's fair to say was the--
Unknown Speaker: xxx your statement probably benefit the results of those other cases when they finally drew the line?
Mr. Brunsman: --Well, the line that's on the U.S.G.S. map shows that some part of the river for the most part is in Illinois.
So to that extent we would benefit.
I think at the time we filed the suit, I'm not even sure... I wasn't aware of those maps.
I'm not certain if anyone... if we were, but they... just the certainty of knowing where it is was the benefit we sought to obtain by filing a lawsuit at that time, knowing that the court had just resolved it with regard to the other three States on the river, and that it seemed like the opportune time to do so as far as Illinois was concerned.
Unknown Speaker: Wouldn't there be some chance that if the boundaries, the low-water mark as it was back in 1792, that the river has changed so that that low-water mark of 1792 would be on dry land on the Illinois side?
Mr. Brunsman: I think that's... it's conceivable, and in fact that is the situation--
Unknown Speaker: Well, I would think it would be just as conceivable as if the river moved the other way.
Mr. Brunsman: --Well, but I think that... this is based on a premise that misconstrues the change in the river.
The river hasn't moved.
The dams have raised the level of the river so in effect it has spread out both ways.
It's deeper behind the dams than it was naturally.
That's why the original pre-dam--
Unknown Speaker: You don't think then, you don't think the Ohio is as much of a meandering river as the Mississippi, for example?
It goes downhill faster, so it doesn't--
Mr. Brunsman: --I think that is exactly what I have read, that that's the case.
Also, the Corps of Engineers, the Government has spent many millions of dollars putting these dams and docks there.
They are not likely to let it gradually move around those dams and docks so that--
Unknown Speaker: --But if it's deeper above the dams, one would think it would be shallower below the dams, because the same amount of rainfall is falling on that watershed as fell in 1792.
Mr. Brunsman: --If you look at the level of the dams, and in one of the filings, I think it's filing No. 41 in Exhibit 3 or 4, some Corps of Engineers documents, they show the level of the pool behind each dam.
And it's above the existing low-water mark because each dam was built to guarantee a minimum 9-foot navigation pass.
And to do that--
Unknown Speaker: Then where is the additional water coming from?
I mean, if it's wider on both sides in some places, it seems logical it must be narrower on both sides in other places.
Mr. Brunsman: --Well, I... to tell you the truth, I can't answer that.
I do know that when you look at the line based on the pre-map, or the pre-dam survey of the Corps of Engineers, you'll see that all along the shoreline of not just Illinois, but Indiana and Ohio, that pre-dam low-water mark is for the most part south of the shore.
Another source that... another Kentucky source recognizing the 1792 line was the 1963 attorney general's opinion where the Kentucky Attorney General not only recognized the existence, or the accuracy of the 1792 low-water mark as Kentucky's boundary, he also recognized that because of the dams it would be south of the contemporary northern shoreline due to the general raising of the river.
The final two Kentucky sources that contain statements incompatible with Kentucky's position here are their two bulletins issued in 1969 and 1972 by the Special Ohio River Boundary Subcommittee of the Kentucky Legislative Research Commission.
The introduction or forward to the first of those bulletins, Bulletin 81, tells us that this special subcommittee was created specifically to study Kentucky's Ohio River boundary due to litigation during the preceding 150 years.
I think it's significant to note that despite Kentucky's claim here that it has always asserted its boundary to be the low-water mark as exists from time to time, that claim was somehow lost on the authors of this... these bulletins, since neither one of those bulletins advanced such a claim on Kentucky's behalf, and both of them recognize the 1792 low-water mark.
So, based on those sources running from 1890 through 1972, and those two reports were even issued while Ohio v. Kentucky was pending in this Court, it shows to me first that Kentucky has repeatedly recognized the 1792 line.
Also that... oh, that's true, there was also confusion within Kentucky, because the legislative research commission was saying it's the 1792 line, Kentucky in their answer to Ohio's original complaint said no, it isn't.
And again, that kind of uncertainty and confusion, I think, fits Illinois' position in this case because you don't have acquiescence where the State claiming the benefit of it can't show a longstanding continuous claim to the boundary they are seeking to have the Court adopt.
There is additional evidence in the record, I think, also that shows that this uncertainty extends to both States.
The best evidence of that concerns the taxation of the permanent structures.
There are a number of structures built on the Illinois shore that extend into the river, barge loading facilities, coal loading facilities, that sort of thing.
Illinois identified 15 of these structures, and admittedly we could produce evidence that we were definitely taxing only one of them.
That was part of a grain-loading facility that is located in Alexander County, Illinois.
Kentucky of course argued this shows that they have exercised exclusive jurisdiction over the river, Illinois hasn't.
But in fact the record also shows that Kentucky, too, has only taxed one of these 15 structures.
So really what you have, 13 out of 15 structures aren't being taxed by either State.
Kentucky did try to tax a second one--
Unknown Speaker: I bet they're paying taxes now.
Mr. Brunsman: --They're waiting, holding their breath.
Kentucky did try to tax a second structure, but the taxpayer there protested on the grounds that they felt that the whole thing was in Illinois and not in Kentucky.
And taxation I think is one of the factors the Court has traditionally looked at in these acquiescence cases, and here I think it supports a conclusion that the record shows uncertainty in both States, and that's incompatible with a finding of acquiescence.
Unknown Speaker: What is the... is the water above these dams heavily used for recreation?
Mr. Brunsman: --I don't believe it is, Your Honor.
I have been down there... all I can say is on my personal visits there is not.
It is mainly used for commercial--
Unknown Speaker: No, not a lot of boating or anything?
Mr. Brunsman: --Not a lot of boating.
I only know of one--
Unknown Speaker: But fishing?
Mr. Brunsman: --There is some fishing.
There is some commercial fishing.
But the few times I have been down there there is not a great deal of pleasure boating on the river.
Unknown Speaker: What do they get?
Mr. Brunsman: I have no idea, Your Honor.
Another incident that Mr. Pearson talked about was the... had to do with the coroners.
And he mentioned the situation where the Illinois coroner always asks permission before he takes charge of a drowning victim in the river.
While it happens to be the coroner in Hardin County, Illinois, it is certainly true that he has always done so.
But it's also true that the Kentucky coroner has always given his permission, even in the most recent incident where the victim was still in the river when the Kentucky coroner arrived on the scene.
And I would submit again this reflects uncertainty in both States, since Kentucky doesn't suggest how one of its coroners could legally delegate authority over a death occurring in the Commonwealth to an Illinois official.
Plainly it's just neither of them knows what to do exactly, so they work this out between themselves.
There is a similar arrangement that was in existence for a long time between the Gallatin County, Illinois coroners and their counterpart.
The Illinois coroner handled the victims if he was a resident of Illinois.
The Kentucky coroner handled the rest.
So again, I think these sorts of situations fall far short of what normally takes and what this Court has found in the past it takes to establish a new boundary by means of acquiescence or prescription.
Finally, I'd like to discuss briefly the various instances where Illinois has exercised jurisdiction over part of the river.
One example of this are the, some 78 permits Illinois' Department of Transportation has issued over the last 69 years governing a variety of structures built from the Illinois shore south into the river.
And these permits were issued pursuant to a statute that requires such a permit for anyone who wishes to do any construction within the public bodies of water of Illinois.
And I would submit that the actions of the Department of Transportation is clear assertion that it believed some part of the waters of the Ohio were within Illinois, or it wouldn't have been issuing these permits for the last 69 years.
Kentucky of course says that Illinois has never exercised any jurisdiction on the water, and this I think proves that that--
Unknown Speaker: Do you think we ought to give some deference to what the Master found?
Mr. Brunsman: --Yes, Your Honor, I certainly agree.
Unknown Speaker: Well, I suppose you would.
But do you find any evidence in the... in our original case opinions that if it's a tie the vote goes to the Special Master?
Mr. Brunsman: Your Honor, I think the Court has said that although the Special Master's findings are entitled to respect and a tacit presumption of correctness, the Court nonetheless has to make an independent review of each record in an original action, since it's really this Court and not the Special Master who is--
Unknown Speaker: That's quite inconsistent, isn't it, to say that there's a presumption but we do it independently?
Mr. Brunsman: --Well, Your Honor, I can only repeat what I have read in the cases.
Unknown Speaker: I've got you.
Well, what do you think?
Mr. Brunsman: I'd like you to rely heavily on the tacit presumption of correctness and--
Another example of Illinois' assertion of jurisdiction over the river has to do with the 1927 decision of the Illinois Supreme Court in the Joyce-Watkins case.
That case involved an accident that occurred on a railroad incline, and it occurred some 8 to 10 feet south of the existing Illinois shoreline.
The employer there argued that since it took place south of the shoreline it didn't take place within the State of Illinois, and the Illinois Industrial Commission has no jurisdiction.
The Illinois Supreme Court rejected that argument.
It cited Indiana v. Kentucky for the proposition that the boundary was the low-water mark on the northwest side of the river.
But then it also observed that no commission between the States had ever actually plotted that line, and that the dispute before it really wasn't the proper vehicle for resolving an interstate boundary dispute.
What it did, it was however able to resolve the controversy because it concluded that the low-water mark referred to in Indiana v. Kentucky was the record low-water mark at any given point along the river.
In other words, each time the river got lower the boundary moved further south.
I would submit that that--
Unknown Speaker: As opposed to a mean low-water mark.
Mr. Brunsman: --Exactly.
And under the way it applied that rule in this case it's clear that it didn't contemplate the boundary ever moving back.
It would just, each new--
Unknown Speaker: Ratchet.
Mr. Brunsman: --It would just ratchet further south.
And I submit that this certainly is not an accurate interpretation--
Unknown Speaker: That's about as chauvinistic approach as you can take.
Mr. Brunsman: --Exactly.
This is the most favorable boundary, I think--
Unknown Speaker: Look at all the land you picked up.
Mr. Brunsman: --It's mostly just water.
Unknown Speaker: Look at all the shoreline you pick up when it moves south.
Mr. Brunsman: Well, but we haven't really picked up any shoreline.
Regardless of what line the Court would adopt in this case, it's a water line either way.
I don't think either State is going to gain any shoreline one way or the other, no matter how it's concluded.
But getting back to the Joyce-Watkins case, as the Chief Justice indicated, that's the most favorable possible version of low-water mark the State could have come up with.
That rule was cited by the various authorities within the State of Illinois from 1927 through 1973.
I would submit that that alone shows that Illinois has not acquiesced to the less favorable line that Kentucky claims in this case.
So in summing up, Illinois' position in this case is first of all, of course, that the boundary between Illinois and Kentucky is controlled by the prior decisions of this Court in Ohio v. Kentucky and Indiana v. Kentucky.
It should be the 1792 low-water mark.
Kentucky's defense of acquiescence fails, I believe, first because Kentucky authorities themselves have repeatedly recognized the 1792 low-water mark, and that is... you can juxtapose that to the fact that there is not a single witness or document in the record that says... that Kentucky can point to that says it's the low-water mark as exists from time to time.
That, those words appear in the pleadings before this Court, and nowhere else that I am aware of.
In addition, Illinois rely on the fact that there is evidence of confusion in both States, and once again that's incompatible with a finding of acquiescence based on a continuous claim of right.
Finally, Kentucky has based its argument in part on the suggestion that Illinois has never exercised any jurisdiction on the river.
I think there are examples in the record at least as concrete as those Kentucky can point to to show that we have exercised jurisdiction over some part of the river south of the existing shoreline.
And that all of those factors add up to a situation where you simply do not have acquiescence.
If the Court has no further questions, that's all I have.
Unknown Speaker: Thank you, Mr. Brunsman.
Mr. Pearson, do you have rebuttal?
You have 3 minutes remaining.
Rebuttal of Rickie L. Pearson
Mr. Pearson: I do.
Thank you very much.
With respect to the 78 permits issued by Illinois officials, Kentucky would indicate from the outset that it cannot stop Illinois from systematically developing its shoreline or its bank.
In other words, those riparians along the bank have those rights.
This is exactly the teachings in New Jersey v. Delaware.
Because you allow the development of the Illinois shoreline, just like in New Jersey v. Delaware, the State which allows that does not abandon the defense of acquiescence.
Secondly, with respect to the Joyce-Watkins case which was the Illinois case, as indicated in Vermont v. New Hampshire, only the U.S. Supreme Court can determine the boundary.
The Illinois appellate court cannot determine that boundary.
Furthermore, if you read the Joyce-Watkins case extremely closely, you'll find out that they recognized that the boundary is a moving boundary, which is consistent with our theory that it's the low-water mark wherever it may exist from time to time.
Finally, with respect to Illinois' argument that there is uncertainty regarding where the boundary is located, this Court can end that uncertainty.
It can conclude that the boundary between the two States is the low-water mark on the northwestern side of the river, which everyone can see.
Every fisherperson can see.
Every person having a boat on the river can see.
With that in mind, Your Honors, thank you.
Chief Justice Rehnquist: Thank you, Mr. Pearson.
The case is submitted.
Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.