LOUISIANA v. MISSISSIPPI
Argument of Gary L. Keyser
Justice Stevens: We will hear argument in Number 121 Original, Louisiana v. Mississippi.
Mr. Keyser, you may proceed.
Mr. Keyser: Justice Stevens, and may it please the Court:
Louisiana's circumstances here today are decidedly less happy than they were 3 years ago in November of 1992, when we were here on the same case.
Since that time, we have had an opportunity to supplement the trial record from the Federal district court in Vicksburg with more than 200 additional exhibits and more than a dozen new witnesses who have augmented the trial testimony and we believe clarified it perfectly well.
Unfortunately, the reason we're here is because we filed exceptions to the report of the special master which has essentially tracked the district court, which was reversed by the Fifth Circuit in favor of Louisiana.
We hope to persuade the Court that Louisiana, like all other States, is entitled to some river frontage, to some access to navigation, and that there should not be an interstate boundary along our levee and along the bank of the river at Lake Providence, Louisiana, where the river never found its main course.
In order for a boundary to be drawn there, as Mr. Austin Smith contends--
Unknown Speaker: You say the river never found its main course?
Are you saying the thalweg was never west of the island?
Mr. Keyser: --When you say island, Justice Stevens--
Unknown Speaker: Stack Island.
Mr. Keyser: --Well, the original Stack Island of 1881 was 6 miles northeast of that location.
Unknown Speaker: Right.
Mr. Keyser: The boundary is sought to be drawn--
Unknown Speaker: Are you saying that the thalweg was never west of that island?
Mr. Keyser: --Yes, sir.
Mr. Brien Winkley, the chief hydrologist for the Corps of Engineers, said it was never there, and he produced all hydrographic surveys for all known periods of time to show where the thalweg was every year, and those hydrographic surveys were introduced into evidence, carefully explained by Mr. Brien Winkley, by Mr. Mike Mayeux, a professional land surveyor, and by Dr. Ernie Easterly, who is a forensic geographic and fluvial geomorphologist.
All of them tracked the deepest geologic thalweg of the river, the downstream track of navigation for all periods of time, and none of them could find that the river was ever on the Mississippi levee, on the railroad tracks, across the property of Mr. Surles and Mr. House, or even across the Lake Providence Port Commission property, where Mr. Smith drew his boundary line.
Unknown Speaker: Mr. Keyser, I'm confused on that point, because I thought that Dr. Easterly testified in answer... there's this colloquy in the third supplemental transcript at 315, 313 to 15.
He's asked the question, so the logical conclusion, then, is that the boundary thalweg was west of Stack Island at its formation, and the answer is, that is correct.
Mr. Keyser: Yes.
The answer there refers to the northeast position of the original position of Stack Island in 1881.
That's 6 miles, 5 to 6 miles northeast of the Louisiana levee.
That's why there's so much confusion in this record.
You can never understand from one minute to the next which area you're talking about unless you do it by latitude and longitude.
Unknown Speaker: Well, if we speak just in neutral terms about disputed territory, that will take care of that confusion, won't it?
Mr. Keyser: Or the disputed areas, sometimes referred to the accretion along the west bank at Lake Providence.
Unknown Speaker: You said in your brief, I believe, that the line as the master has recommended that it be drawn now cuts through property which has been owned and farmed by Louisiana residents since I think the beginning of this century, and that statement was simply hotly disputed in Mississippi's brief as being a factual misstatement.
Could you either now, or if you can't do it at this moment, perhaps by a letter to the Clerk after the argument is over, point me to sort of the exact places in the transcript, or the other evidence which supports that statement of yours?
Mr. Keyser: One place you would want to look is to the testimony of Albert Surles, who adjoins the property of Mr. Sam House, who is the sheriff of that parish.
Mr. Surles' father bought the property in 1925, and he testified that the accretion which attached to his property he had leased out to another Louisiana witness, Lonnie Styron, and Lonnie Styron was then at that moment, when he was testifying, forming that property.
Now, that accretion was not, I don't believe, formed by Mr. Surles' dad, but rather by Mr. Surles himself, and Mr. Styron.
Unknown Speaker: Okay.
Is there any other evidence in the record that you would point to?
Mr. Keyser: I can't think of anything, except Robert... you have to recall that Mississippi really only had two witnesses, Austin Smith, who is their expert, and Robert Jarvis, who is the grandson of the Houston family.
Mr. Jarvis' testimony was from an aerial photograph in which he drew a blue ink pen line across the same property and said that was the property of the Houstons.
Well, that's the Surles, House, Delony, Shorter property.
Actually, the line that Robert Jarvis drew is more westerly than the line that Austin Smith drew.
Unknown Speaker: Well, that may be, but none of that indicates that a Louisiana family was farming the land since 1900, and I take it it's the Surles' testimony and that alone that you point to.
Mr. Keyser: Yes, sir, and you'll see in the testimony there that there... in fact, the lease was introduced: to evidence.
Unknown Speaker: Okay.
Mr. Keyser: Thank you.
So we're hoping to get some kind of river frontage and some access to navigation.
On the subject of Mississippi's expert witness, this is the same man--
Unknown Speaker: Before we leave the thalweg issue, whether it was west of the disputed territory or not, I confess to be totally at a loss to understand what's going on here.
In the brief of Mississippi, it is stated in this case it is undisputed that the boundary thalweg was west of Stack Island in its prepatent location.
Is that a misstatement?
Mr. Keyser: --No, sir.
I think that's true.
It depends in any year, any given point in time, when you make a statement, whether or not it's true, because it changes all the time, but--
Unknown Speaker: Well, I'm talking about the prepatent location.
It was west of Stack Island, you don't contest that.
Mr. Keyser: --It was west of Stack Island before the New Madrid earthquake washed the island away in 1811, and it was west of Stack Island... another problem--
Unknown Speaker: You're saying this isn't Stack Island, isn't that what causes all of this confusion?
Mr. Keyser: --Certainly.
That is correct.
What the disputed area is is not Stack Island.
The originally island was--
Unknown Speaker: So if we accept the master's reasoning that in fact you can trace the... I'll call it the migration of this piece of land, whatever it's supposed to be called, from the Stack Island which was east of the boundary thalweg originally to the disputed area now, then your argument falls.
If we accept his reasoning for the identity of this land, then that's the end of your argument.
Mr. Keyser: --That's correct.
Unknown Speaker: And then you do concede... that was the Dr. Easterly testimony that I read, that the boundary thalweg was west of Stack Island at its formation.
Mr. Keyser: In 1811 or prior years, not at 1994, 1995--
Unknown Speaker: Well, we have just gone through that if this Stack Island continued in existence, then the boundary was west of Stack Island at the island's formation.
Mr. Keyser: --Dr. Easterly's not referring to the Louisiana levee.
He's referring to the Mississippi area 6 miles northeast of the area of the dispute.
I'd have to reread the testimony you're reading to make absolutely sure, but I'm quite confident that's what he meant.
Unknown Speaker: And the boundary thalweg, unless Stack Island is washed away, will remain west of Stack Island for all times, unless it is eroded away, and Dr. Easterly confirmed that that was correct.
Mr. Keyser: That's correct, but he's not referring to Lake Providence, he's referring to Mayersville, Mississippi.
Unknown Speaker: I thought he was referring to Stack Island.
Mr. Keyser: No.
I think that colloquy is about where the location of the original island is and all of the exhibits depicted in black at a latitude reference... he's referring to, if the island is washed away... I think they're talking about the island rule there, but I would have to go back and reread it.
Unknown Speaker: Maybe I have this mixed up, but I didn't think it was that complicated, so probably I do have it mixed up, but I thought once upon a time there was a place called Stack Island that used to be part of Mississippi, and there was a big river that flowed to the west of it.
Mr. Keyser: Correct.
Unknown Speaker: And then that big river that flowed to the west of it began to change its channel and began to flow towards the east of it, and the law is that if the river changes like that, that Stack Island still stays part of Mississippi.
But of course, if it really isn't one island, if really the island disappeared and then reemerged later on, when the river was flowing to the east, then it's part of Louisiana.
Mr. Keyser: I agree with--
Unknown Speaker: So you're all arguing about whether this was one island called Stack Island, which has always existed, but the river changed course, or that there are three or four or five islands that keep coming back and forth and disappearing.
Mr. Keyser: --That's exactly correct.
Unknown Speaker: All right.
Mr. Keyser: That's exactly what--
Unknown Speaker: If that's correct, then looking through this, it seemed to me they made an awfully good case that there was just one island, because they trace it through on all the maps, and then they show that there were cottonwood trees there that are about 100 years old, or 80 years old or something, and they're still there, and it's pretty hard to see how all these trees could have grown on this island that was popping in and popping out, and you have some other evidence, but what is it, because I haven't found it.
Mr. Keyser: --Let me explain what that problem is there.
The special master misconstrued Mississippi's only third witness, the forester, Mr. Burkhardt.
Mr. Burkhardt was testifying about an 1867 Merriweather map which showed the island accreted to the Mississippi shore at that time, and it did have tall trees.
As Austin Smith testified, that island was completely washed away and washed downstream.
Unknown Speaker: The only thing I found on your side, or my clerk found so far was that one of these maps, which always talks about Stack Island, had at one point marked through it a thing that said river, or channel, and if you assume there were 50 yards on either side or something it must go through... do you know what I'm thinking of?
Mr. Keyser: I think that was a survey--
Unknown Speaker: Yes, right.
But aside from that, is there any other evidence in your favor?
Mr. Keyser: --About what?
Unknown Speaker: That shows this island was popping in and out instead of just being one island.
Mr. Keyser: One of the best things... quickest handles you can get on that is to look at Dr. Easterly's testimony.
He explains the origin of the island, when it was washed away by the New Madrid earthquake, and attached to his prepared testimony in the supplemental trial is what's called the cartographic analysis.
It tells you for every year whether the island or any bar or shoal formation loosely called Stack Island was in existence, and you will see that it appeared and disappeared and reappeared, as did island number 7, below Lake Providence, and an agglomeration of bars and shoals which appear and reappear throughout this reach of the river.
But the location known as island number 94, and after it was washed away in 1883 it became Stack Island, and it was washed away in 1910 to 1915, became bars and shoals and an agglomeration of low-level accretionary features, washed away again in 1948, and now it's there in its full glory at its original location as a true island known as Stack Island near Mayersville, 6 miles from Lake Providence, and what is below on the Louisiana bank is nothing more than bank accretion.
Unknown Speaker: Mr. Keyser, when you say that it washed away, do you mean that there was on the surface of the river at that point no land showing, or do you mean that the level of the island in relation to the adjacent river banks dropped sufficiently low so that by the legal definition you employ it was not an island even though there was visible land of some sort there, whatever you might call it?
Do you mean that literally there was nothing above the surface of the water, or there was something above the surface, but it wasn't high enough to be called an island?
Mr. Keyser: Both of those are true, both of those statements.
In 1883, during a flood period, the river totally scoured the island away, and as Dr. Winkley testified, there was a 30-feet scoured channel right through the island.
Unknown Speaker: Wasn't there also testimony that with respect to that time a given family was continuously farming the land, so that with respect to that, wasn't there disputed testimony?
Mr. Keyser: They filed affidavits... the island was surveyed--
Unknown Speaker: Well, but isn't that what their affidavit said?
Mr. Keyser: --Correct.
Unknown Speaker: And isn't the master entitled to accept the affidavit?
Mr. Keyser: I think he has to do so with a common sense comprehension of what was going on at the time.
Unknown Speaker: Well, if somebody says, there's nothing there, and somebody else says, we were farming that land there at that time, the master can't have it both ways.
He's got to choose one or the other.
Mr. Keyser: That's true.
Unknown Speaker: If he chooses yours, they're going to say, oh, gee... the other side is going to say, you've got to show common sense, and if he chooses the other side's testimony, that's what you're saying.
But he's got to take one or the other, and why would we go behind his factual resolution?
Mr. Keyser: Why would the U.S. Army Corps of Engineers draw hydrographic surveys that showed scour pools at the location of the island?
Stephen B. Blackwell has family who are in an ongoing effort to achieve a patent--
Unknown Speaker: I don't know, but if you want to say it's a choice between whether you're going to accept the testimony of farmers who said they were farming, and a Government agency that drew a map, I don't see anything irrational about saying I'm going to go with the farmers.
Mr. Keyser: --Well, the island was surveyed in 1881, but it washed away in 1883.
Unknown Speaker: And the farmers say no, we were farming it.
Mr. Keyser: --Well, in the hope that it would come back, which it did.
Unknown Speaker: Well, they weren't farming in hope.
I mean, you're not plowing in water.
Mr. Keyser: They may not have been accurately providing affidavit for the general land office--
Unknown Speaker: Well, somebody could always lie in testimony, that's true.
Somebody can always can make a mistake.
But the point of a factfinder, in this case the master, is in effect to make the best choice he can, and the master in this case chose the affidavit of the farmers.
What is irrational about it?
Mr. Keyser: --With an island elevation of 20 feet and a water elevation of 50 feet, one might doubt the veracity of an affidavit that says there was an ongoing farming operation continuously from year to year.
It would be under 30 feet of water, as the master saw himself on May 5, 1994.
When he went with us in a boat to the disputed area, he found 46 feet of water and an island... not an island, an accreted ball formation on the Louisiana bank 30 feet of water.
Now, is that an island?
Unknown Speaker: I don't know, but I'm concerned about 1883, and the master--
Mr. Keyser: Well, that's--
Unknown Speaker: --took the testimony of the farmers, and I still don't know why it's irrational.
Mr. Keyser: --Well, he didn't take the testimony of the farmers.
Unknown Speaker: Took the affidavit of the farmers.
Mr. Keyser: He took... there was an affidavit filed in an effort to kill a fault in a patent application, was what that was about.
But if you look at all of the hydrographic surveys, it's not reasonably likely that a farmer could have farmed 30 feet under water, and that's the long and the short of it.
That is a legitimate concern.
Unknown Speaker: In your view, when did this disputed area form?
You said it's not the same as this Stack Island in origin.
We have... the disputed area is formed much more recently, and when do you date it from?
Mr. Keyser: According to the testimony of the Corps of Engineers chief hydrologist, it started forming in the 1930's.
According to Albert Surles, who lived there, I think, thirties, forties, and fifties, it was a gradual process of building accretion to the bank, and you can see it from the hydrographic surveys, and Mr. Surles testified about it, and in fact in the first--
Unknown Speaker: Your position is, it's 1930, or it's not 1930, when is it?
Mr. Keyser: --It's a gradual process of building on a river bank.
The accretion forms more and more, year after year, unless, of course, it's washed away, and that's what Dr. Winkley testified had happened here.
As the island to the northeast is being washed away, sediment is being deposited on the Louisiana bank at Lake Providence, so there are two separate and distinct features, two separate and distinct times and places building and eroding independently of one another.
Unknown Speaker: --In the disputed area, roughly, in a 10-year period, or from 1930 if the record tells us, what period of time was it underwater?
Mr. Keyser: Every year.
Unknown Speaker: For how long?
Mr. Keyser: --During high water.
Unknown Speaker: How long does the high water last?
Mr. Keyser: It would depend on the melting of the snow up north.
It would commence probably in March, April, May, June.
It varies from year to year.
Sometimes there are periods of extreme high water even very late in the summer.
Unknown Speaker: So in some periods it would be underwater for 3 or 4 months?
Mr. Keyser: --Yes, or longer.
This entire crew here was in a boat on September 5, 1994, and the water elevation was 46 feet.
Unknown Speaker: In other words, there is... if I go to the place... what's... it's not a trick.
I'm using the words Stack Island to refer to what Mississippi and the special master were referring as Stack Island, so I'm not trying to catch you in any kind of linguistic difficulty.
I mean, you're saying that this place that the master and everybody is talking about as Stack Island, which from reading the master's reports had trees all over it, cottonwood trees, that you all went out there, and there was nothing but water, and that down below the water level, 40 feet below was this place they're calling Stack Island with, what, some trees, branches, poking out the top?
Is that what it looked like?
Mr. Keyser: Major treetops.
It was like driving through a forest.
Unknown Speaker: So in other words, if we go there right now, there is no land.
It's 40 feet under the water.
Is that what you're telling me?
I'm just trying to understand this.
Mr. Keyser: Depending on the water elevation.
I'm not sure what it is right now.
Unknown Speaker: But no, is it that there is no land there at all, it's below the water, like feet, many, many feet below?
Mr. Keyser: I would imagine if conditions today on October 2nd or 3rd--
Unknown Speaker: And all the witnesses agreed, everybody said... I didn't get that from the report... they all went out to this place of what they're calling Stack Island, and there's no land, it's just water 3 or 4 months a year?
Mr. Keyser: --That is the nature of the river.
Unknown Speaker: But is... am I right in saying that?
Mr. Keyser: --Yes, Your Honor.
Unknown Speaker: So there is no land there, there is just water 3 or 4 months every year, is that the case?
Mr. Keyser: It may be longer than 3 or 4 months.
Unknown Speaker: All right, but not shorter.
Mr. Keyser: It could be shorter.
Unknown Speaker: It's like the Nile Valley.
Mr. Keyser: Correct.
The water elevation varies as much as the height of this building.
Unknown Speaker: May I go back, then, to my earlier question?
Mr. Keyser: Yes, sir.
Unknown Speaker: Part of your argument, if not your case, then, rests on your claim that this is not an island because it is not high enough in relation to the banks of the river to be called an island.
Mr. Keyser: Correct.
Unknown Speaker: And you're saying that for that reason, even though during some parts of the year there's land here, and indeed there's enough land to have trees, the tops of which look like a forest, it's still not an island, and the island rule, or the island exception, rather, does not apply.
That's your argument.
Mr. Keyser: Yes.
Unknown Speaker: Okay.
Mr. Keyser: It wouldn't apply to this--
Unknown Speaker: Why... you in effect then are saying that the island exception should not apply to anything that does not... any body of land sometime above the river, which sometime is located above the surface of the river, which is not... I forget what the rule is, as high as the banks, or something like that.
Why in the world would we want a different rule for low-lying land, let's say, that is a foot or 6 feet below the banks from the rule that we would apply to an island as you would define it?
Mr. Keyser: --If you attempt to take into account every bar and shoal, and if each one of those can represent the legal character of an island, you'll have a thousand boundaries.
They're constantly forming and being washed away, so you'd be faced with trying to draw frozen thalwegs and active thalwegs, or different boundaries every time you found a bar or shoal, of which there are thousands in any one mile of the river.
Unknown Speaker: But I assume very few of those have been patented to owners like this.
You're talking about an area here where land patents have been issued, isn't that right?
Mr. Keyser: Not on the west bank of the river at Lake Providence.
Only patents for uplands fastlands to the riparians at the time of State sovereignty.
What has accumulated as accretion to the bank has never been patented out.
It is just attached.
The only thing that was ever patented was the northeast Mayersville, Mississippi location.
Unknown Speaker: You know, there is a series of maps that were put in evidence in this case, I assume by Mississippi, and each one has fixed markers.
You can lay one on top of another, and see at each map just where this disputed area has shifted a little bit or grown, or changed, and where the river has changed, and if you lay each one on top of the other, at the end of the day you see the disputed area that has shifted somewhat through the years, grown, changed in shape with movement of the river, but nonetheless traceable.
Mr. Keyser: Yes.
Unknown Speaker: And you come away at the end thinking, well, here is this piece of land that was patented, and it shift and changed through the years, but it's identifiable.
Now, is there not such evidence available that the master looked at and apparently relied on?
Mr. Keyser: He did look at it, and apparently did rely upon it, and that technique is the subject of a book.
It's called, "How Maps Lie".
It's no different than taking aerial photographs of a car on an interstate, and you take the picture every day, and you say, see, the car is always right in that same place.
And that's what happened in this case.
Those maps are nothing more--
Unknown Speaker: Well, are you suggesting that the island disappeared in the meantime?
Mr. Keyser: --Dr. Winkley said--
Unknown Speaker: Are you saying that as between map A, B, and C in the interstitial period between A and B and B and C, that the body of land disappeared?
Mr. Keyser: --From year to year it did.
It was washed away.
Unknown Speaker: They just happened to get there at the fortunate moments when it was appearing, and they never bothered to map during those periods when it had sunk?
Mr. Keyser: Those maps are--
Unknown Speaker: I mean, that's not a believable proposition.
Mr. Keyser: --Those maps are at low water.
They're below the ordinary low water elevation.
Unknown Speaker: All right, then that gets us... all right, then that gets us back to the claim of whether it is or is not an island by legal definition, but it doesn't go to the question of continuity, which Justice O'Connor raised with you.
Mr. Keyser: Well, Dr. Winkley addressed the question of the whole thing being scoured away.
He gave us the dates.
He gave us the maps.
They're all in evidence.
It shows that the bottom form of the river was completely devoid of some of those very formations you make reference to, and he explained that in his predicate testimony for what he would talk about, then he explained it specifically with regard to each map.
Now, sometimes there is a low-lying bar or shoal growing up... as the ancient writers used to say, fast growing up to be an island covered with willows, maybe a new crow's nest island, words to that effect, but it--
Unknown Speaker: That testimony contradicts the series of maps, does it not?
Mr. Keyser: --Yes, it does, the series--
Unknown Speaker: Once again--
Mr. Keyser: --that Justice O'Connor referred to.
Unknown Speaker: --as with the affidavit by those who claimed to have farmed the land, there is conflicting testimony, and isn't the master entitled to rely on the series of maps, rather than on the testimony of your one expert witness?
Mr. Keyser: Well, we had four.
Unknown Speaker: On this point?
Mr. Keyser: --Yes, sir.
Unknown Speaker: That said it was totally scoured?
Mr. Keyser: --We had Hatley Harrison in the first trial, Mike Mayeux, the surveyor, Dr. Winkley, the corps' hydrologist, and Dr. Easterly.
All of them talked about each of the maps.
Unknown Speaker: General Keyser, can I ask you a factual question?
In response to questions from Justice Breyer, you said the island was totally submerged for 3 or 4 months in several years.
Would it not also be true that for 8 or 9 months it was visible and above the level of the water?
Doesn't the water level rise or fall rather dramatically in the Mississippi?
Mr. Keyser: Correct.
Unknown Speaker: And in your view, how long does it have to be submerged before it ceases being an island?
Mr. Keyser: It has to be above ordinary high water to be an island at any time.
Unknown Speaker: Well, I... you're not denying... you're not saying it was never above high water.
Mr. Keyser: Dr. Winkley said there has been no island in the river above high water for any recorded period of history.
Unknown Speaker: It as to be above high water.
Mr. Keyser: Ordinary high water.
Now, when that water goes down, you can see something.
You can walk on it.
That's why they deer-hunted.
Unknown Speaker: And for what period of year, in your view of the evidence, was the island totally submerged, in a typical year?
Mr. Keyser: Well, it would be submerged from after the... I mean, it would be emergent from after the spring floods, generally through the summer, to February, March, April the next year.
Unknown Speaker: So it would be above water more often than it would be submerged.
Mr. Keyser: It's hard to say because of the way the water in the river is.
We'd... it... actually it varies tremendously from year to year.
Unknown Speaker: Well, with reference to the definition of an island, can you give us some idea of how to measure the time that the island has to be above water, or above the high water mark, in order to qualify as an island under your definition?
Mr. Keyser: Once an island is above ordinary high water, it is a fixed place.
It has permanent character.
Unknown Speaker: Even if it's above high water for just once a year?
Mr. Keyser: Well, yes, if it--
Unknown Speaker: One day a year?
Mr. Keyser: --Ordinary high water--
Unknown Speaker: That's what we're asking.
Mr. Keyser: --Ordinary high water may be in the vicinity of 36 to 38, 40 feet.
What exists for whatever period of time, and if the island were... whatever portion of a bottom feature was above that elevation would be the island part, not the part below it, like Hawaii or somewhere.
Only the part above the water is the island, not the part below it, so if it's above the water, that part qualifies as an island, not the bars and shoals that surround it.
Unknown Speaker: --How long does it have to be--
Mr. Keyser: There's no rule on that that I'm aware of.
Unknown Speaker: --So 1 day a year suffices.
Mr. Keyser: I wouldn't go that far.
I would have to think it would have to be somewhat more emergent and more permanent in character and use than that, but--
Unknown Speaker: I thought the definition that the master used was whether or not it was below or above for a protracted period of time.
Mr. Keyser: --I would think it should be, but I've never seen a situation where there was only... if you only had 1 day of ordinary high water, it might qualify, but that's not the case.
That never happens.
It's months at a time, generally.
Unknown Speaker: Mr. Keyser, going back perhaps more specifically to the question that Justice O'Connor raised with you, in leaving aside for the moment the question of how we're going to define the island... let's just refer to it in a generic... to the disputed area in a generic way.
The yellow brief on page 30 contains the statement that 65 percent of the island as shown on the map in 1882 was still in place, in the same place as shown on a map in 1937.
Is that statement correct?
Mr. Keyser: That's totally incorrect.
It's not possible by any stretch of the imagination.
Those are in two different geographic locations.
They're 6 miles apart.
There's no way that--
Unknown Speaker: Well, how long was the island?
Mr. Keyser: --Along the Lake Providence bank in Louisiana.
It is the bank accretion, and it goes from the town of Lake Providence 5 or 6--
Unknown Speaker: Yes, but how long is it, I mean in relation to 6... you're saying it was 6 miles apart, it couldn't--
Mr. Keyser: --Oh, no, no--
Unknown Speaker: --so that statement couldn't be correct.
Mr. Keyser: --Yes, I see what you're getting at.
The original island first referred to is 117 acres, so it might be 500 feet long, 1,000 feet long, over against Mayersville, Mississippi.
The other accretion against Louisiana is just that, it's in a remote location, so the two can't coexist... well, there's a new island in the original location, so they do now, but they couldn't along the lines of what you're suggesting.
I think I'll reserve the rest of my time.
Unknown Speaker: Thank you.
Argument of James W. McCartney
Mr. McCartney: Justice Stevens, and may it please the Court:
What has emerged from Mr. Keyser's argument is in our view simply that we have, as we had at the outset of the trial, an identity issue.
That is to say, is the disputed area Stack Island as it was patented but changed in configuration and location over a very lengthy period of time?
The Court appointed the special master.
The special master reviewed all of the evidence.
The special master heard the witnesses.
The special master also heard some of the arguments that you have heard today.
The special master addressed the question of whether this was an island.
The special master found from the record, and we have undertaken in our brief at page 25, joint response, footnote 23, to identify the evidence in the record that demonstrates not only that this island has the appropriate permanence which is the test that we submit is the appropriate test, that it has the appropriate... has the permanence to qualify as an island, but also that it was above high water, and the thought--
Unknown Speaker: When you say above high water, what do you mean?
Above high water 6 months out of the year, 9 months, 12 months... what do you mean by above high water?
Mr. McCartney: --Your Honor, when I say that, I'm talking about constantly.
Unknown Speaker: Permanently.
Mr. McCartney: Now, there may be--
Unknown Speaker: So you disagree as a matter of fact with your opponent's statement that for several months each year it was 40 feet below high water.
Mr. McCartney: --Yes.
Unknown Speaker: Well, where were you all when you were in the boat?
Mr. McCartney: Well--
Unknown Speaker: Didn't you row among--
Didn't you row among the treetops with Mr. Keyser?
Mr. McCartney: We rowed among treetops, but there was also water... dry land above the water.
Unknown Speaker: I mean, where was... that what was mixing me up.
As I read these and I had my law clerk check into it, I did think there was an awful lot of evidence this is one place, and there are big poplar trees 80 feet around or something, or they're very, very broad, big trees.
I don't know how you could plant these trees if it's underwater all the time.
But he just said you went out on a boat, and there you were, sailing over the island 40 feet below you under the water.
What happened on that boat?
Mr. McCartney: Well, what happened was that a part of the time... we motored, we didn't actually row.
We motored among the trees over that portion of the island that was inundated at that particular time of the year, and the master was there, and viewed the island, and heard the evidence, and read the cases, and reached the conclusion, correctly, that this is a land mass that has the degree of permanence that qualifies as an island, and that qualifies as a feature that determines boundary.
Unknown Speaker: But you said that it has to be permanently above high water.
Mr. McCartney: Well, I didn't... if I said that, You Honor... I thought you were asking me... I didn't say it had to be permanently above water.
I didn't intend to, let me say that.
What I'm saying is that the overwhelming... well, let's direct our attention first to the question that you asked.
No, we don't say that it has to be permanently above water.
I think that an island could flood and still have permanence over 100 years, and the master so found, and documented his findings quite overwhelmingly in this appendix.
Unknown Speaker: I'm not talking about permanently above flood tide, or anything.
Mr. McCartney: Yes.
Unknown Speaker: Permanently above normal high water, and so I took your statement to mean that if at the time when you went motoring among the treetops the whole island was underwater, that would contradict your case, but you say the whole island... because I assume that was just normal Mississippi high water at that time.
That wasn't a flood, was it?
Mr. McCartney: It was a flood, but Your Honor, I guess that--
Unknown Speaker: You picked a bad time to go, then.
You should have been out during--
Mr. McCartney: --We wanted to see it at its worst.
We were perfectly prepared for the master to examine the feature at the time of extreme high water.
Actually, that's... it just happened to be that way.
I don't mean to suggest that we picked any particular time.
Unknown Speaker: --Well, Mr. McCartney, I just wanted to get straight on what you saw out on the boat.
I take it that part of this land mass was flooded.
There was water over the soil, but I gather from what you said a moment ago part of it was not--
Mr. McCartney: That--
Unknown Speaker: --that there was still some dry land somewhere.
Mr. McCartney: --Your Honor--
Unknown Speaker: The edges of the island got flooded, but the center of the island didn't, is that true?
Mr. McCartney: --Your Honor, that is my recollection at this time, and Mr. Bailess will address that, but that is my recollection, and--
Unknown Speaker: But your further position is that even if there were a total flood, I mean, you can flood a whole long area, it doesn't cease being land.
Mr. McCartney: --No.
Unknown Speaker: Yes.
Mr. McCartney: I mean, as pointed out, we have trees that... evidence that there were trees there that had been 50, 60 years old, and if I may just add to the evidence, in your review of the evidence of permanence, in addition to what the special master laid out in his Appendix D, which is itself overwhelmingly compelling, particularly when compared to the single or... map that they relied on to say that the island was scoured clean, and the bed of the river was scoured clean of this feature in 1883.
Unknown Speaker: Mr. Keyser says four witnesses testified to that, is that right?
Mr. McCartney: That is not so.
That is not so.
Unknown Speaker: Was the scoured clean map I think you were referring to, or one of the briefs referred to as the lunch map?
Mr. McCartney: The lunch map--
Unknown Speaker: Yes.
Mr. McCartney: --which itself, and I'll just... it's credibility is destroyed, or at least seriously impaired, because one of their experts gives it to the other expert in the middle of trial, and he takes that map, and he says, oh, you know, this land was underwater, and we say, well, wait a minute, here are affidavits given in 1885 that say these people were farming--
Unknown Speaker: Yes, but that map does show a channel of the river going right over the island, doesn't it?
Mr. McCartney: --And... and he says, how can they be farming land that's underwater, and we say, that is a good question.
Obviously, they can't.
The map was wrong.
It's a spurious map.
Besides, in addition to these documentary demonstrations of permanence, we have to remember that in 1921, after they say this was scoured clean, there was a timber deed given to my clients, the Houstons, the private parties.
In 1931, there was another timber deed, so these people are selling... these are the Blackwells, the patentees are selling timber off the island in '21, '31, an then my clients lend money and take a mortgage on this piece of land that's 54 feet, according to this Mr. Winkley, underwater.
They lend them money, and then they foreclose on the mortgage.
The State of Mississippi, they take a tax deed.
They foreclose for the nonpayment of taxes.
There's litigation over this island.
This island has been known to all of the parties.
There's overwhelming documentary evidence that it's continued in existence.
Unknown Speaker: Mr. McCartney, do we know who did the lunch map?
Mr. McCartney: We do not.
Unknown Speaker: --is the author unknown?
It just sort of appears?
Mr. McCartney: Author unknown--
Unknown Speaker: Can you get maps into evidence like that?
Mr. McCartney: --Well--
Unknown Speaker: --without knowing--
Mr. McCartney: --Your Honor, to be perfectly frank with you, we wanted that map in evidence, because the reliance on that map and the circumstances in which it was found... and it was a total reliance... utterly destroyed the credibility of Mr. Winkley, and so we were perfectly happy for him to rely on this map that mysteriously appears at lunch and say, yes, this is what I'm relying on, and therefore this island was scoured away and washed away and ceased to exist, and so--
Unknown Speaker: --Mr. McCartney, what is your view of our duty to give deference to the master's findings of fact?
Are we supposed to look at the case de novo, or are we supposed to give some deference to him?
What's the law on that point?
Mr. McCartney: --Your Honor, I've taken a position on that in a previous argument that you are free to take your own factfindings, and that the clearly erroneous rule does not apply.
I think that to be correct, but I think as a matter of law, under these circumstances the evidence is so overwhelming that that question does not come into play.
Unknown Speaker: Thank you, Mr. McCartney.
Mr. McCartney: Thank you.
Unknown Speaker: Mr. Bailess.
Argument of Robert R. Bailess
Mr. Bailess: Justice Stevens, and may it please the Court:
As I sit here and listen to this this morning, I wished I had been standing up here to answer some of the questions that you had asked.
Unknown Speaker: Well, I wish you had, too, because it sounds like something like a giant shell game in the river, now you see it, now you don't, and no, it's... the island's up here 6 miles away.
Mr. Bailess: Justice O'Connor, I would... you mentioned the overlay exhibits which, it takes a little time to examine those exhibits.
You have to get acquainted with them.
You have to become familiar with them.
If each of you took the time to get familiar with the overlays, you would unquestionably say that Stack Island has existed from... and the first good metes and bounds, if you want to call it that, survey that is performed by geodetic positions... that is, latitude and longitude lines, which was done in 1882... show unquestionably that Stack Island at that time was good, fastland that existed, and if you follow that on through up to 1994, you will see that that island is in substantially the same position through all of those years.
Unknown Speaker: May I get specific about that with a question that I raised with Mr. Keyser?
Why, then... can you explain why we have such a clear dispute over the proposition which was in your yellow brief that 35... I'm sorry, 65 percent of the island as shown in 1882 was still shown in the same place in 1937?
How do... one of the things that's puzzling me is how we can have, definitional problems aside, such a clear contradiction about matters of evidentiary fact.
Mr. Bailess: Justice Souter, the only way that I know to answer that question is to say, if you will look at who was testifying to come up with those percentages, it was Dr. Winkley on cross-examination, so Louisiana's own expert witness testified to that.
I don't know how better--
Unknown Speaker: What is your comment on Mr. Keyser's statement that the island... or the land masses were 6 miles apart, and for that reason, given their sizes, there could not have been such an overlap?
Mr. Bailess: --Your Honor, Mr. Keyser attempted to talk about two islands when we tried this case the first time in Vicksburg before Judge Barbour in 1989.
He again tried to talk about this other island in the supplemental proceedings before Judge McKusick, and there was an original Stack Island, and I will admit to you today that the original surveyed, patented Stack Island is not located in the exact position that it's located in today.
Unknown Speaker: Well, is it 6 miles away on the--
Mr. Bailess: No, sir, it's not nearly 6 miles away.
Unknown Speaker: --Well, do you stand by the statement which you attribute to the witness for the other side that there was this 65 percent identity over time between 1882 and 1937?
Do you think that statement is correct?
Mr. Bailess: I think it's substantially correct, Your Honor.
He was not my witness.
I had him on cross-examination.
He made the percentage, I accepted it, it was very--
Unknown Speaker: You adopted it in your brief.
Mr. Bailess: --I did.
Unknown Speaker: Yes.
So if I take the 1882 map and the 1937 map, and I overlay them on my light table, am I going to see something like a 65 percent overlay of the land mass?
Mr. Bailess: Give or take 10 percent, I believe you will, sir.
Unknown Speaker: Okay.
Mr. Bailess: Let me correct one other thing that is misleading.
When Judge McKusick and the attorneys went to view the island in May of 1994, we took a boat and we went around the island.
We put in at the Lake Providence Port Commission.
We went up the old channel, the boundary channel.
We never did go into the wooded area far enough to see dry land, but I can assure you it's there, and I can assure you that if you read the hydrographic surveys that are in evidence, and you look at the contours on those hydrographic surveys which are surveying the top bank of Stack Island, you will see that at all times on those survey maps, Stack Island is higher than what Mr. Winkley is trying to put into evidence as the... he called it the top bank, and in each instance you will see that Stack Island exceeds Mr. Winkley's top bank definition by at least 5 feet or so.
Unknown Speaker: Were you on this boat trip?
Mr. Bailess: Yes, ma'am, I was.
Unknown Speaker: And was there a part of the disputed area that was above the waterline on that boat trip, or was there not?
Mr. Bailess: Justice O'Connor, we did not... as I mentioned just a moment ago, we did not see dry land on that trip, mainly because to get in there... there was current in the river, and we would have had to go in between trees to get to that area, and we felt like that was not an appropriate thing to do under the circumstances.
Unknown Speaker: You couldn't see it in the distance.
Mr. Bailess: --We did not see it.
We went back in September when we heard the case.
When Judge McKusick heard the evidence, we went back on an afternoon after the testimony and drove onto this island with a four-wheel-drive vehicle.
We drove to the north end of the island where the highest elevation is.
We drove to the south end of the island, where it's much lower.
But at that time there was conversations in the vehicle as we rode around, now, Judge McKusick, this area here was dry when we were here 4 months ago.
Unknown Speaker: Well, do you acknowledge that at times the island is completely submerged--
Mr. Bailess: No.
Unknown Speaker: --in the river?
Mr. Bailess: No, Your Honor, I do not.
The... if you look... now, at times, that may have happened.
If you look at the most recent hydrographic survey, if I'm not mistaken... it's in the brief on page 25 in footnote 23, but if you'll look at the contour on, I think it's of the most recent map, the Stack Island has an elevation of 50 foot.
That is, 50 foot above zero gauge.
Zero gauge is defined as the lowe water mark.
The area on Stack Island on the north end is 50 foot above zero gauge.
Unknown Speaker: Well, do we look at the high water mark or the low water mark?
Mr. Bailess: --Your Honor, we take the position that an island is an area of land surrounded by water that has permanent features, i.e. vegetation, i.e. 70-year-old trees, that is capable of sustaining vegetation, and in 1881, when this island was surveyed by the General Land Office of the United States by a deputy surveyor, it had trees that were 60 to 70 years old at that time.
Mr. Jarvis testified that in 1994 there were trees on this island that were 40 to 42 inches in diameter, which would have made those trees at least 60 to 70 year old in 1994.
Unknown Speaker: Mr. Bayless, what is the difference in altitude between the ordinary high water mark and the zero gauge level on the Mississippi River?
Mr. Bailess: According to Mr. Winkley, Justice Stevens, it's 35 feet.
According to Mr. Winkley.
I don't adopt Mr. Winkley's testimony.
I don't accept his definition of an island, but at Lake Providence, it's approximately 35 feet, according to Mr. Winkley.
Unknown Speaker: What do you think it really is?
What's your view?
Mr. Bailess: The Corps of Engineers establishes a standard low water, which is then termed zero gauge.
Unknown Speaker: Right.
Mr. Bailess: The top bank is in the neighborhood of 35 feet.
When we visited there in May of 1994, the river stage was 46 feet on the Vicksburg gauge, which at Vicksburg is 3 feet above flood stage, so it was above top bank by at least 3 feet.
Unknown Speaker: Well now, on your... when you talk about the land being visible, are you talking about there being enough land above the ordinary high water mark, or enough land above the zero gauge, when you try to define the island?
Mr. Bailess: Your Honor, above zero gauge, Stack Island was a tremendous island in size.
Unknown Speaker: All right.
Mr. Bailess: At--
Unknown Speaker: But which is the significant standard for us to look at, zero gauge, or high water mark?
Mr. Bailess: --Our position is standard low water, Your Honor.
Now, let me mention this.
Mr. Winkley testified that--
Unknown Speaker: Well, is standard low water the same as zero gauge?
Mr. Bailess: --Pardon me?
Unknown Speaker: Is standard low water the same as zero gauge?
Mr. Bailess: Yes, Your Honor.
Unknown Speaker: I want to be sure.
Mr. Bailess: Mr. Winkley testified, when they came up with this proposition that to be a true island it had to be above mean high water, that's the term that.
Louisiana came up with.
When we asked Mr. Winkley, well, what is mean high water, he said he didn't know.
He did not have any definition, nor did the Corps of Engineers, nor did any other publication that he knew of publish a definition for mean high water on the Mississippi River.
So we asked, well, what is ordinary high water?
The same reply.
So what Dr. Winkley did is, he then came up with a definition that an island has to be above top bank.
He attributed that definition to himself.
Unknown Speaker: And top bank means what?
Mr. Bailess: According to Dr. Winkley, it is approximately 35 feet above zero gauge which, to determine that, what he did in his testimony was, he took a period of time, and he plotted heights of the river during the 1870's to the 1880's.
He said the reason he did that is because it was before levees.
Therefore, when the river got out of its banks, it had no barrier to hold it up.
But since you have levees, of course, the top bank, according to him, is really... you can't define it, because levees hold the water in.
It confines the water.
Unknown Speaker: But now, there are levees in this area.
Mr. Bailess: Yes.
Yes, Your Honor, there are--
Unknown Speaker: And how high are the... what is the top of the levees, how high above the--
Mr. Bailess: --I can't tell you from memory, but I believe I am correct in saying this, that the 50-foot contour on Stack Island that exists according to the 1993 hydrographic survey that is in evidence is at least as high as the top of the levee.
Unknown Speaker: --Did I understand you to say earlier that even accepting the other side's definition of an island as requiring land equal to or above, what is it, top--
Mr. Bailess: Top bank is what they say.
Unknown Speaker: --Yes, that Stack Island would qualify?
Mr. Bailess: That is correct, Justice Souter.
Unknown Speaker: And qualified in 1881?
Mr. Bailess: That is correct, and Dr. Winkley admitted that.
Unknown Speaker: And do I also understand... you didn't say this explicitly, but I took this as implied, and I want to make sure I understand you.
Did you also mean to say that if the entire island were flooded today, at a time of high flooding, that that would... that it's condition would simply be what the land on the bank of the river would be if there were not levees there, that the island would be no more flooded than the adjacent bank lands would be flooded?
Mr. Bailess: That is absolutely correct.
Unknown Speaker: Okay.
Once you establish an island on the basis of, you know, a portion of it is above... at least some portion is above top bank, whatever that means, the next question is, how much of that chunk of mud and whatever is an island?
Is the island then that you have identified, does it extend down to the low water mark?
Mr. Bailess: Let me answer that in this way.
In Louisiana, the Louisiana riparian owns from the bank to the low water mark.
Unknown Speaker: To the low water mark.
So it ought to be the same for the island owner.
Mr. Bailess: It ought to be.
In Mississippi, the riparian owner owns to the thalweg, all the way out to the State boundary.
Now, why would you penalize the Mississippi parties and the State of Mississippi by some cockamamie definition of top bank, that an island has to be at top bank to be an island?
Unknown Speaker: Am I correct that there has never been any dispute in this litigation that at the time of the original patent... which was what, 1881, I think?
Mr. Bailess: It was surveyed in '81--
Unknown Speaker: Okay.
Mr. Bailess: --issued in '88.
Unknown Speaker: All right.
At the time of the survey patent, that Stack Island, the land mass so-called at that time, was an island by legal definition.
That has never been contested, is that correct?
Mr. Bailess: To my knowledge, it has never been contested, Your Honor.
Unknown Speaker: Okay.
May I ask one more question?
Suppose the island does... does disappear and reemerge, does that mean all bets are off?
I mean, what's... is it the same island, or do you have to start all over again?
Mr. Bailess: Your Honor, if it truly disappeared by the natural processes of the river... that is, the channel of the river scoured that island away, then the island in my opinion would be no more.
That would not destroy title to the land under the water, though, and in Mississippi the riparian owner would own to the thalweg, which would be to the State boundary, so it wouldn't disturb title, necessarily.
Now, if that island came back in the same place, then conceivably title would never be disturbed, but there is absolutely no proof in this record that Stack Island washed away.
Unknown Speaker: I was going to say, we don't have to get into that issue on your theory, because there is at least an evidentiary basis for viewing the facts as the master viewed them, so you don't want us to get into that.
Mr. Bailess: That is correct, Your Honor.
Unknown Speaker: Is there some book that has... just as a matter of law that has this thing about top bank in it?
I mean, it's making me a little nervous.
I think there are some rivers that have very high banks, like the cliffs of Dover, or something, and it would seem amazing to me that if you have a little island in the middle of a river with thousand-foot banks on it, that suddenly people start saying it isn't an island, but I mean, is there some legal reference where they explain this?
Mr. Bailess: Justice Breyer--
Unknown Speaker: Which is the one--
Mr. Bailess: --Mr. McCartney asked that question to Mr. Winkley.
What if the Mississippi Bank is 1,000... I mean, 100-foot cliff, and the Louisiana bank is... is at your top bank.
Mr. Winkley couldn't really answer that question, Your Honor.
Unknown Speaker: --Aside from this, if we're going to state a proposition of law in some of these opinions, I would like it, you know, to be accurate.
The thing I want to know, where do I look this up?
Where does it say?
It doesn't seem intuitive to me that it would be.
Still, whatever Sicily... I mean, I don't know what the bank is of Sicily compared with the southern boot of Italy, but you see the problem.
Mr. Bailess: Yes.
Unknown Speaker: Where would I look--
Mr. Bailess: Yes, Your Honor, and I would point the Court to two cases.
One is the case of Scott v. Lattig, which is cited in the brief, which gives a factual basis in that case for an island.
It doesn't say that this Court made the determination for all legal principles that you have to have this to be an island, but in that case, it had, really, four things.
One was, they said... this is factual things.
This island, in Scott v. Lattig, was 3 to 5 feet above ordinary high water.
2) It was covered for the most part with wild grass, sagebrush, and young timber, and 3) it was... had substantial evidence of permanence, and 4) that it had been there when Idaho became a State.
Unknown Speaker: --You never heard of the term high bank before, did you?
Mr. Bailess: I have used the term myself, high bank, a number of times throughout this litigation to describe the bank coming from Louisiana or Mississippi where the bank makes a severe slope coming off of the flatland down into the bed of the river.
I've used that term high bank.
I may have even used the word top bank, but not for the purposes of defining an island.
The only other case--
Unknown Speaker: You had a second case... Smith v. Lattig, and you were going to refer us to a second case.
Mr. Bailess: --Thank you, Justice Kennedy, I was going to do that.
The other case is a circuit court of appeals case.
It's Uhlorn v. U.S. Gypsum company, and in that case the Court held that the elevation of the land was not the deciding factor in determining whether or not a State boundary would be lost, or to say it a different way, it did not have to reach an ordinary high water mark in order for the State boundary to remain... in that case I don't remember if it was to the west or the east or the north or the south, but for the State boundary to remain where it was when the change in channel occurred.
Unknown Speaker: Mr. Bayless, in a case like this, does either side have a burden of proof?
Mr. Bailess: Your Honor, it is our position that Louisiana had the burden of proof.
They filed this original action.
We still take that position.
I'm a little different in representing the State of Mississippi than Mr. McCartney is.
He filed no counterclaim.
Mississippi filed a counterclaim to Louisiana's original complaint claiming that it was under Mississippi sovereignty, and we proved that, so as between Louisiana and Mississippi we had maybe an equal burden of proof only because I filed the counterclaim.
I refer the Court to the case of Kansas v. Missouri.
I don't remember the date of that.
I think it was a 1913 case, but in that case this Court held that the party who filed the original complaint had the burden of proof in an original action.
If I could review my notes just a moment.
Kansas v. Missouri is 322 U.S. 213, 1944 case.
Unknown Speaker: I think your moment for reviewing your notes has just expired.
Mr. Bailess: Thank you, Your Honor.
Unknown Speaker: General Keyser, you have a little over a minute left.
Rebuttal of Gary L. Keyser
Mr. Keyser: Thank you.
First, I'd like to address the question of where the book definitions come from.
On page 6 of our brief, we tell you where three of them come from, from U.S. Coast and Geodetic Survey, the Department of the Interior, and the Corps of Engineers.
On page 19 we cite the Government Land Office book Manual of Instruction for the Survey of Public Lands, where the Government surveyors were given the same definition used by the Coast and Geodetic Survey and the other Government agencies which follow the Hague Convention of 1938 and the Geneva Convention on the Territorial Sea and Contiguous Zone.
Unknown Speaker: And what is that definition?
Mr. Keyser: A body of land entirely surrounded by water at ordinary high water.
That's used in international practice, domestic practice on the rivers, U.S. v. California, U.S. v. Louisiana, all--
Unknown Speaker: Yes, all right, but then the issue, it's ordinary high water is the correct term--
Mr. Keyser: --That is the--
Unknown Speaker: --not something like a special median extra-high water, and not top bank, so we should disregard those terms in your view, is that right?
Mr. Keyser: --Except that top bank is the same as ordinary high water.
Unknown Speaker: It doesn't mean, really, the height of the bank.
Mr. Keyser: No.
No, it doesn't.
I can explain that, but it doesn't.
Justice Stevens: Thank you.
The case will be submitted.