New Hampshire v. Maine - Oral Argument

Argument of Paul Stern

Chief Justice Rehnquist: We'll hear argument now in No. 130, Orig.

State of New Hampshire v. State of Maine.

Mr. Stern.

Mr. Stern: Thank you, Mr. Chief Justice, and may it please the Court:

Before the Court today is made motion to dismiss New Hampshire's complaint on res judicata grounds.

By its complaint, New Hampshire seeks to redraw its boundaries...

Justice O'Connor: Would you speak up a little please?

Mr. Stern: I'm sorry, Your Honor.

Justice O'Connor: Maybe you can raise the podium and everything closer.

Mr. Stern: I apologize.

By its complaint, New Hampshire seeks to re-draw its boundary with Maine by moving the border from the middle of the river onto Maine's shoreline along the Piscatagua River.

In 1976, this Court held that the King's 1740 order permanently fixed the boundary as the quote middle of the river closed quote.

The consent decree approved by this Court in 1977, according to New Hampshire at the time in a brief reproduced at 149A of New Hampshire's Appendix, that decree quote... contains specific findings and rulings and sets forth the precise factual basis and legal principles upon which it, the decree, is founded... closed quote.

Paragraph three of that decree sets for the pertinent provision of the 1740 King's order, the quote... middle of the river, closed quote... language.

Paragraph four of that decree is a ruling or legal principle finding that as used in the 1740 order, quote... middle of the river... closed quote, means, not surprisingly, middle of the Piscataqua River, river of the main channel of navigation of the Piscataqua River.

Justice Kennedy: If we agree with your position, does it become important or do we decide here, or does it remain in dispute whether the middle means the geographic middle or the middle of the channel?

Mr. Stern: No, paragraph four of the 1977 decree specifically held or noted or ruled that as used in the 1740 order, quote... middle of the river, closed quote... means middle of the main channel of navigation of the Piscataqua River.

In fact...

Justice Kennedy: But what I guess I'm asking is it necessary then... if your position is to be maintained... that we refer to our own earlier decree as opposed to simply relying on the 1740 decree?

Is this issue going to come up again, or does that depend on how we write the decision if you prevail?

Mr. Stern: Hopefully it will not come up again, as this is the third time it has come up.

The 1976 opinion of this Court confirmed that the 1740 King's decree permanently fixed, permanently set the boundary at the quote... middle of the river... closed quote.

Justice Breyer: Where is that?

Mr. Stern: That would be the Commissioner's report... it's at, I believe, 14(A) attached to our appendix, or attached to our brief.

And I believe that 21(A) or 22(A) is the King's affirmance of that.

Justice O'Connor: Well, the 1977 consent decree I thought had to do with the lateral marine boundary from a point going out to sea.

And I did not think that it dealt actually with the upriver area at all and the islands where the naval base is now.

Am I right?

Mr. Stern: No, Your Honor.

Justice Kennedy: No?

Mr. Stern: At the...

Justice Scalia: Where is it... it is not at 14(A)... at least not on 14(A) of your brief.

That's what I'm looking for.

Mr. Stern: I apologize, Your Honor.

It's 7(A).

Two points I would like to make in response to your questions.

First...

Justice Scalia: It's not 7(A) either.

You want to try again?

You're talking about your brief in opposition to the motion to dismiss?

Mr. Stern: No.

Our brief... we're the moving party.

Chief Justice Rehnquist: Oh, I'm sorry.

Justice Scalia: Your brief... I've got you.

I'm looking at the wrong... I'm with you now.

Mr. Stern: Second paragraph.

Justice Scalia: 7(A).

Mr. Stern: Second paragraph.

It is affirmed, by the way, on 21 or 22(A).

Getting back to your question, Your Honor... two points I would like to make.

First, by necessity the terminus point of the lateral marine boundary from the Isles of Shoals to the River... you have to determine where the location of the boundary is in the River.

That's clear from the very first pleading... the complaint filed by NH in 1973 where on the very first page they state that the boundary between the two states is described in 1740 King's decree as the middle of the River.

So by necessity, one...

Justice O'Connor: Yes, but the question might then become whether it follows the salvaig or it doesn't, and whether the '77 consent decree has res judicata effect here.

It may not in relation to this island where the naval base is.

Mr. Stern: The decree on its face in paragraph four, without reservation, gives meaning to the phrase quote... middle of the river from the 1740...

Chief Justice Rehnquist: And what page is that on?

Mr. Stern: Excuse me, Your Honor?

Justice Scalia: Page four, which is where?

I'm still looking for the decree.

I can't find it.

Mr. Stern: The Maine...

Justice Scalia: The '76 decree... that's what we're talking about, isn't it?

Mr. Stern: The 1977 decree is reproduced attached to the United States brief... the gray brief... and I believe the...

Justice Scalia: That's what I've been asking for.

I'm trying to read this...

Mr. Stern: I misunderstood, Your Honor.

I thought you were referring to the 1740 decree.

If one looks at 2(A), paragraph four, without reservation, gives meaning to the term quote... middle of the river, closed quote... from the 1740 decree as the middle of the main navigational channel of the Piscataqua River.

Paragraph five that I wanted to get to applies that principle to the River.

It applies the principle by laying out in miles of the River from its mouth all the way up to Fishing Island.

Of note in the dissenting opinion written by Justice White, it's noted that Maine strongly objected to the proposed geographic midline of the special map there because of the substantial areas that Maine would lose to NH in both the River and harbor and seaward thereof.

Before this Court, Maine's Assistant Attorney General argued... and it's at 104 to 105(A) of New Hampshire's appendix... that as much of an objection as Maine has to the effect of the geographic lines with respect to losing territory off the coastline outside the harbor, Maine felt much more... a much greater prejudice from the effects inside the harbor.

To the extent that the impression was left that nobody was thinking about it or nobody was arguing with respect to the rest of the River, that simply is not true from both the...

Justice O'Connor: But the point is that I at least looked at New Hampshire's complaint here as resting on an allegation that the division is the low-water mark of the Maine shore.

That has nothing to do with... and doesn't require us to determine whether we follow the thaw wick or the geographic middle of the River if we apply the old King's decree.

But you could deal with your motion and say, sure, if we dismiss it because at least it isn't that the low-water mark of the Maine shore, and not decide whether it meets the thaw wick or the geographic middle of the River.

Mr. Stern: Exactly, Your Honor.

Justice O'Connor: We could do that, and that would mean they could come back here a fourth time, I assume.

Mr. Stern: I assume, yes.

Justice Scalia: But to do that we would just as much have to rely on the fact that the only thing which the 1977 decree technically held... mainly the outward line... depended upon a calculation of what the line within the River was.

We still have to make that conclusion.

And while we're making that conclusion, we may as well go the whole hog and accept what that decree said was, which was mainly the middle of the channel of navigation rather than the geographic middle.

Isn't that logical?

Mr. Stern: That's logical.

Either approach would result in the motion...

Justice Scalia: Well, I think the other approach is illogical.

I mean, there's no basis for saying that we can resolve this matter without deciding where it is in the River, because the only thing the decree says is that the line outward into the ocean depends upon the line inward in the harbor and in the River, and it then goes on to say, and that line is the middle of the navigation channel, so it seems to me if we buy into the binding effects of the decree, we buy into the middle of the navigation channel.

Mr. Stern: We agree, Your Honor.

To the extent that there is a suggestion that NH had no reason or no incentive to press a claim to the shoreline back in the 1970s, that is simply wrong.

Indeed, in response to the special master's report, NH filed exceptions seeking to move the middle of the River line three hundred and fifty feet closer to Maine shore.

If the shoreline boundary was correct... if they pressed it back then... the line would be moved not three hundred and fifty feet but over half a mile onto Maine shoreline, obviously resulting in a substantial additional amount of territory being in NH rather than Maine.

To the extend that there is the suggestion that the middle of the river could possibly mean the shoreline, that is diffused by NH's own... not only the decree on its face, paragraph four in particular and its application in paragraph five, but also with respect to NH's own pleadings at the time on brief where at the brief at 459(A) of Maine's appendix, NH explained that when quote... middle of the river... closed quote, must be interpreted, there are two possible interpretations... salvaig or geographic middle.

NH at the time did not identify Maine's shoreline as a possibility, because NH had the...

Chief Justice Rehnquist: Just as a matter of English usage, it seems when you're talking about the middle of the River it would not be Maine's shoreline.

Mr. Stern: That's what we have been saying, Your Honor.

We are here on a complaint seeking to in effect that quote... middle of the river, closed quote... does not mean the middle of the river, but it is more peculiar because of the result of the decree in 1977.

At least the first mile of the river is laid out as the middle of the River.

NH appears to agree that once we get up to the head of tide near Salmon Falls, we jumped back into the middle of the River again, because apparently the 1740 decree describes the boundary up there as the middle of the Nuashanog.

So the middle of the River means the middld of the River at the mouth.

Middle of the River means middle of the River at its head, but middle of the River does not mean middle of the River, according to NH, in the middle section of the River.

It becomes even more peculiar, becuase it appears that NH conceives that virtually all, if not all, of the islands on Maine's side of the middle of the River, except the Shipyard Island, are in Maine.

So it has this jogging boundaries with all the islands except one are in the state of Maine.

Justice Ginsburg: But the last time around there wasn't any actual adjudication.

As I understand it, the special master said that the geological line, and this Court said, no, the parties have agreed on what middle of the river means, but it was... one could say that agreement was for that controversy, and then all bets are off... they're talking about a different portion.

Mr. Stern: We would disagree with that for a number of reasons.

First, we've argued both claim and issue of preclusion.

In our view, it's because of the transaction of the meaning and applicability of the 1740 King's decree was before the Court in the 1970s, in particular with respect to the location of the boundary in the River, NH was precluded from today coming in presenting a different theory as to the meaning and applicability of the 1740 decree.

Justice Ginsburg: First, on claim preclusion, it isn't the same claim because it was one portion that was in content to be '77 and a different portion now, so I don't see how it could be claim preclusion.

The dispute over lobster fishing is not dealing with the same land as the current case, is that right?

Mr. Stern: Not exactly, because back in the 1970s, as it has been explained previously, by necessity it was essential to determine the location of the boundary in the River and, in fact, the decree applied the principle to a portion of the River.

But we understand, as is obvious by comparing the United States' brief and Maine's brief, that reasonable minds can differ as to whether we're talking about a claim or an issue.

We believe the claim preclusion issue and preclusion are different paths that get to the same spot res judicata, but...

Justice Ginsburg: The difference is that claim preclusion would be used to the extent that it doesn't matter what was actually litigated if it's a part of the whole claim.

Mr. Stern: Exactly.

Justice Ginsburg: In issue preclusion, it usually does matter whether it was actually litigated.

Mr. Stern: Yes.

If it is a quote... consent decree... closed quote, and we would argue that this is not the type of consent decree described in, for example, International Building, because here this Court made an independent determination that the 1740 King's Order and not the proposed consent decree permanently fixed the boundary as the middle of the River.

We would also suggest that looking at, in particular paragraph four of the 1977 decree, that that according to NH, as we have related, is a specific finding or ruling or legal principle with respect to the entire river because, in particular in paragraph five, it was applied to a portion of the River.

If there are no further questions now, I reserve the rest of my time for rebuttal.

Argument of Jeffrey P. Minear

Chief Justice Rehnquist: Very well, Mr. Stern.

Mr. Minear, we will hear from you.

Mr. Minear: Thank you Mr. Chief Justice, and may it please the Court:

The United States submits that Maine's current suit is barred by this Court's 1976 decision and its 1977 decree in New Hampshire v. Maine, No. 64, Original.

And we think to understand 64 Original, it is useful to look at a map here.

NH has provided a lodging of maps, and I would refer you if you have a copy to map four, which shows the consent decree line.

Justice Breyer: What?

Mr. Minear: This is in the eight and a half by eleven document entitled New Hampshire's Map Lodging for Oral Argument.

Chief Justice Rehnquist: I don't have it, Mr. Minear.

Mr. Minear: Okay, perhaps I can describe the line and that might be helpful to understand the operation of the consent decree in 1977.

This consent decree did provide for descriptions of the lateral marine boundary which runds perpendicular to what would be the coastline of Maine and NH.

Justice Scalia: For those of us that do have it, what page?

Mr. Minear: It's map number four.

It's F4.

In any event, the line that is drawn here includes the lateral marine boundaries.

But by terms of the consent decree, it also extended the line up into the harbor this is the line that runs almost north/ south that is marked here.

That is... that line is described in paragraph five of the consent decree.

You notice it's a straight line... and the reason why it's a straight line is it follows a range of light that mariners use to navigate up the channel, and that's why we call this the main channel of navigation.

And you'll see it ends at a point where there is another line that crosses perpendicular almost east/ west.

That's another set of range lights where people who are navigating would follow as well, going further up the River.

But the important point to recognize with regard to the consent decree is that it did define the channel as the middle of the River... as the middle of the main channel of navigation... and it extended that line up into the River to a considerable degree.

Chief Justice Rehnquist: When you said that definition of the middle of the River, the main channel... is that the talveig, or just the channel that is in fact used by the ships?

Mr. Minear: I think in actuality it is the channel that is in fact used by the ships.

As Justice White pointed out in his dissent in No. 64 Original, the talveig would normally follow the deepest channel or where the current is fastest, so it would not necessarily be a straight line.

But by the terms of the consent decree, and as the lines are drawn shown here, they compromise their meaning of the 1740 Order by using where the ships actually travel...

Justice Kennedy: And how does that help us as we proceed north through... beyond Seavey's Island?

Mr. Minear: Seavey's Island is to the left... to the west of this line.

And if one were to draw the line consistently with the '64 decree... one would travel east/ west along those range lights... they're very faintly marked, it will begin actually at Pierce's Island which is not marked here, but up north you see Seavey Island.

The important point pertinent to the motion to dismiss is under any interpretation of the 1740 decree we think that NH's complaint must be dismissed.

Justice Scalia: The argument is being made that the normal conditions for issue preclusion are met here because this was not an ordinary consent decree... the Court really had to make a legal determination because of the special nature of the Court's repsonsibilities with regard to boundary disputes between the states.

If that is true, I can't understand how the Court could have simply invented... certainly in 1740 they meant either the talveig or the geographic center of the River.

I mean... I don't think anybody thought in 1740 they meant the usual channel of navigation.

Did anybody say that?

Mr. Minear: Well, Maine was making that argument, and it wasn't ultimately resolved.

Of course, the master disagrees with the consent judgment that was proposed on the basis that it should have been the geographic middle, and this Court rejected that argument.

Now, the Court made two legal rulings and...

Justice Scalia: Well, you say the Court actually decided that that's what the 1740 document meant?

Mr. Minear: No, rather what the Court said in its 1976 decision was first that it's clear that the 1740 Order of the King controls here, and it's the middle of the River.

Second, the parties are entitled to compromise their claim because this is a reasonable interpretation of the decree... not perhaps the only interpretation of the 1740 decree, but one that was permissible.

I don't think the Court wants to go back and...

Justice Scalia: The 1740 decree reasonably referred to harbor lights that were planted out there in what... 1960?

Mr. Minear: No, I think what the Court was suggesting is they could have... that decree could reasonably describe what was the main channel of navigation, however that was determined at that time.

And of course boundaries are ambulatory... they move, and maybe the main channel of navigation is followed differently then as now.

But for purposes of resolving this dispute, the Court accepted the parties' agreement that the range light line would be used to determine the main channel of navigation as it is settled.

We think that the Court's consent decree does preclude further litigation, at least to the extent that certainly the middle of the River is not on the low-water mark.

Furthermore, we would argue that the main channel of navigation should be continued to be used to continue up the River.

To do otherwise would provide a discontinuous line, and we do think the 1740 Order of the King ought to be interpreted in one way as we go from the mouth of the harbor up the River.

Any other interpretatoin will lead to discontinuous lines the Court will have to connect.

NH suggests that's all right; you simply use your equitable powers.

We suggest that the better approach here is to read the consent decree as reasonably determining that the King's Order would have one meaning for purposes of the 1740 Order, and it should be applies consistently throughout the length of the River.

Justice Ginsburg: Mr. Minear, which preclusion principle are you relying on?

It seems to me it doesn't fit claim preclusion... it is a different claim that's being made here.

Mr. Minear: We rely on issue preclusion.

Justice Ginsburg: And even though the Court didn't actually adjudicate anything, it accepted the parties' submissions.

Mr. Minear: Well, the Court did adjudicate the question of whether the 1740 Order controls.

They found it necessary to reach that issue in order to enter the consent decree.

As to the line that was drawn, this Court noted in Arizona v. California, and it noted in United States First International Building Company that if questions of law in fact are resolved in a consent judgment, those can be binding on the parties.

We think it is reasonable to read this consent judgment providing a single interpretation of middle of the River, it would apply henceforth to all applications of the 1740 decree.

After all, this decree only effects these two states; it is reaosonable for them to conclude when they drew the boundaries that they were looking at one definition.

In fact, the text of the order suggests of them... the 1977 decree suggests that as well.

It says what the word middle of the River means, not what it is meant to or what it is deemed to mean for purposes of this case only.

If the parties... the parties were well represented.

If the parties had intended that this case was only good... that this ruling was only good for this stretch of the River, they wuld have clearly indicated that by the terms of the consent decree and they would have put the Court on notice that that's exactly what was determined.

Justice Souter: What is that vertical blue line that you're talkign about on map four?

Mr. Minear: Yes?

Justice Souter: On paragraph five of the decree it says it proceeds southward as indicated by the range lights located in the vicinty of Pepperell Cove and Kittery Point.

Is that what they're talking about?

Mr. Minear: Yes.

They're going moving from south... from north to south.

Justice Breyer: So it starts... so that phrase in paragraph five is meant to pick up the top of that vertical leg and go down.

Mr. Minear: That's right.

Justice Breyer: Okay.

Mr. Minear: And the reason that they say in the vicinity is they start that point with the two range lights intersected.

Justice Breyer: So this all comes from some map?

The range line is marked on the coast and did that survey chart, 211, etcetera.

Mr. Minear: Now, the current charts... if the Court is interested in looking at the current charts, they're NOAA charts 13278 and 13283.

I think you'll find there's some difficulty sometimes in finding these charts, and I wanted to provide you with those numbers in case you have the inclination to look further at the charts that are involved here.

If there are no further questions?

Argument of Leslie J. Ludtke

Chief Justice Rehnquist: Thank you, Mr. Minear.

Ms. Ludtke, we'll hear from you.

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

I would like to start by framing what appears to be the central issue before the Court, and that issue is as follows: Maine and the United States argue that NH is bound by its position in the 1976 case concerning the meaning of the 1740 boundary decree

That case involved the determination of the state's lateral marine boundary that ran between the mouths of Pourtsmouth Harbor and Gosport Harbor.

Now the boundary decree in question which was issued as an order to counsel in 1740, describes the boundary as follows, and I will paraphrase the description: The boundary passes up through the mouth of Piscataqua Harbor and up the middle of the River into the River Newichwannock and through the same to the furthest head and it divides the Isles of Shoals

In 1976 Maine and New Hampshire agreed that three phrases in the 1740 decree had relevance in determining the location of their lateral marine boundary, and those phrases were as follows: Phrase number one: The boundary passes up through the mouth of the harbor; Phrase two: It passes up the middle of the river; and Phrase three, it divides the Isles of Shoals

Since that time, NH has determined for good historical reasons after a searching review of original records and maps that the phrase up the middle of the river has no relevance to determining the location of the boundary in the harbor and the tidal portions of the Piscataqua River.

Maine and the United States claim that the stipulation in 1976 preludes NH from arguing in this case that that phrase, up the middle of the river, had no application to the location of the boundary in Portsmouth Harbor.

NH contends that it is precluded from arguing that, because that phrase... up the middle of the river... was not essential to this Court's jurisdictions to enter judgment approving the consent decree.

We say that it wasn't essential to the Court's jurisdiction and we say that if anything, it impeded the Court's ability to enter that Order.

Chief Justice Rehnquist: But you said how you argued in 1977, you said we said, which I think is something that you said in the past.

Mr. Ludtke: Excuse me.

I meant that it's our position in this litigation that that phrase and the parties' stipulation as to the meaning of the phrase up the middle of the river in 1976 impeded this Court's ability to enter a consent decree.

Justice Scalia: You think middle of the harbor was also not relevant to that decree?

Mr. Ludtke: Your Honor, the consent decree did not address the phrase middle of the harbor, nor did it address the phrase mouth of the harbor.

Justice Scalia: We have that four says the terms middle of the river and middle of the harbor as used in the above quoted order mean the middle of the main channel of navigation.

Mr. Ludtke: I understand that.

I'm referring to the consent decree that was entered by the parties where the parties did not address the meaning of those terms.

The consent decree entered by the parties defined only the term middle of the river, and the parties defined the term middle of the river in that consent decree as meaning the 1956 ship range light channel...

Justice Stevens: Let me just interrupt you to get one thing straight... the parties signed a consent decree, but this Court didn't enter that decree.

Isn't that right?

Mr. Ludtke: This Court entered an order approving the consent decree.

Justice Scalia: Where is the consent decree in the materials in front of us?

I have the order; I don't know where the consent decree is.

Chief Justice Rehnquist: It's in page 1(A) of the government's... no, that's the order, I thought.

Are you talking about the decree?

Justice Breyer: That's right.

Justice Scalia: That's not what she's talking about.

That's not what she's talking about.

She says that this decree does say middle of the harbor, but she says that the parties' consent decree did not say middle of the harbor.

Mr. Ludtke: The parties' consent decree appears in the appendix to the brief for the United States, and the paragraph...

Chief Justice Rehnquist: Whereabouts, Ms. Ludtke?

Mr. Ludtke: Excuse me, at 1(A) in...

Justice Scalia: That's what I'm looking... that's what we're reading from, and it says middle of the harbor.

Justice Breyer: Paragraph four.

Justice Scalia: The terms middle of the river and middle of the harbor.

Now, certainly middle of the harbor was essential to drawing a line outward into the lobster beds.

Do you think middle of the harbor means something different from middle of the river?

Mr. Ludtke: That means the middle of Gosport Harbor, Your Honor.

The boundary lines are lateral...

Justice Scalia: And it means... it means the navi...

Mr. Ludtke: boundary lines go through the middle of Gosport.

Justice Scalia: The regular channel of navigation through the harbor, and you think that middle of the river does not mean the regular channel of navigation through the river.

That's rather odd it seems to me.

Mr. Ludtke: Your Honor, NH has very carefully reviewed the historical documents pertaining to the 1740 Order and the way in which that language was used in that 1740 Order.

Justice Kennedy: We're just focusing on number four for a minute... it says the terms middle of the river as used in the above quarter mean that I'll interpolate (a) the middle of the main channel of navigation of the Piscataqua River, and (b) the middle of the main channel of navigation of Gosport Harbor.

So those are... those are conjunctive phrases each having their own meaning, are they not?

Mr. Ludtke: That's correct.

The term middle of the river refers to the main channel of navigation in the Piscataqua River, which is then defined by the ships' range light line.

The term middle of the harbor means the middle of the main channel of navigation through Gosport Harbor, which is in the Isle of Shoals.

Chief Justice Rehnquist: Right.

Justice Breyer: So then it goes on to define what they're talking about, and they say the middle of the main channel of navigation, and that's why I ask this question, and they say is that blue line.

Okay?

So that's what it says right in the decree.

It says it's that blue line.

At least that's what I was told.

Paragraph five of that decree means exactly as if it were written... that blue line.

Mr. Ludtke: That's correct, Your Honor.

Justice Breyer: Right.

So what's the issue?

Here you agree and they agree that in a consent decree entered by the Court that the channel is that blue line.

Now you're saying it's not that blue line.

All right, why?

Mr. Ludtke: Your Honor, the state of NH is not contesting the lateral marine boundary in the portion... I call it the dogleg portion... that runs up toward Pepperrell Cove, and that is the line that is referred to that is marked by the 1956 ships' range line, and that line, by definition, terminates at the location of the ships' range light lines which are located on Pepperrell Cove.

It is not a continuous line.

Justice Breyer: So can you... I'm sorry that I may be... looking at map four, what part are you talking about?

Mr. Ludtke: Looking at map four, the line that proceeds from here to here, the top towards Pepperrell Cove, the turn, represents the 1956 ships' range light line...

Justice Breyer: Right.

Mr. Ludtke: determined by that.

It terminates...

Justice Breyer: Which is the blue dogleg.

Mr. Ludtke: That's correct.

Justice Breyer: Okay.

Mr. Ludtke: And it terminates by definition at the shore right here.

We supply the United States coast and geodetic map.

It terminates by definition at the shore, which is the location of a ship range light.

Justice Breyer: What is it NH wants?

Mr. Ludtke: Pardon?

Justice Breyer: I'm sorry... don't assume too much... assume I know nothing about this.

Look at the blue line... it is not... all right.

Look at the blue line and tell me what... where it is that NH wants to go.

Mr. Ludtke: The portion of the boundary that is at issue in this litigation is the portion that starts from this line west of this line, and runs up the river to the saltwater confluence at the Puchico River.

Justice Breyer: So Seavey Island... that's the part.

Mr. Ludtke: This is Seavey's Island right here.

Justice Breyer: And you want part of that.

Mr. Ludtke: This case is not about the location of the Portsmouth Naval Shipyard... it's about the boundaries of NH, and it's about whether NH has rights to Portsmouth Harbor that historically have been NH's.

Our case goes back to 1679 when NH was created as Royal province and the Port of Piscataqua... later the Port of New Hampshire... was annexed to New Hampshire.

We historically have controlled and governed the Harbor; our claim goes to the fact that the historical documents show that at the time of the American Revolution...

Chief Justice Rehnquist: But shouldn't all of this have been fleshed out in the 1976 case?

Mr. Ludtke: L In 1976 the parties had no motive or reasons to litigate these issues.

The key matter at issue in the 1976 litigation concerned NH's desire for a straight line lateral marine boundary.

And there have been a number of maps filed that shows the respective claims of the parties, and I'll refer you specifically to map number eleven which shows all the different boundary claims.

And people had a lot of different ideas about where the boundaries should be in the lateral marine area.

Chief Justice Rehnquist: That's with the... these are all... that refers to the 1976 litigation?

Mr. Ludtke: That's correct, Your Honor.

And the location of the starting point was intended to achieve one purpose as far as NH was concerned, and that was to accomplish a straight line lateral marine boundary.

Chief Justice Rehnquist: But if in fact the choice of that starting point also leads to other perfectly logical conclusions, isn't NH bound by that?

Mr. Ludtke: No, Your Honor.

NH is not bound by that because there was no actual adjudication of the issues in 1976.

No inference can be raised that the parties intended to adjudicate that, and I will address that specifically with respect to the continuity argument.

Justice Stevens: May I just ask... you say there is no actual adjudication, but paragraph four was a subject of dispute within this Court.

Three of us dissented from paragraph four.

How can you say there wasn't an actual decision on that point?

Mr. Ludtke: Your Honor, I think that the question on whether there was an actual decision goes to the matter of whether that stipulation was essential to the Court's authority to enter the decree.

And the Court could have entered the decree as a valid agreement of the parties establishing the location of the boundary simply by reference to the phrase in the 1740 decree that describes the boundary as passing up through the mouth of Piscataqua Harbor.

The point that I attempted to make before is that if anything, that was an impediment.

The Court entered the decree despite that, not because of it, and the reason is is because therre is no legal authority for using a modern ships channel as a divisional principle in boundary cases.

There are a number of boundary cases that do use ship channels, but the ships' channel is always...

Justice Stevens: You're just repeating Justice White's argument.

Mr. Ludtke: Pardon?

Justice Stevens: You're just repeating Justice White's argument that the Court rejected.

Mr. Ludtke: And that's... that's why I think that the 1976 order issued by this Court does stand for the proposition that the states have broad latitude in coming to agreement as to the lcoation of a boundary when the underlying boundary instrument is imprecise, and I think the second correlary of that is this Court need not adjudicate the actual true and correct historical meaning of the underlying decree in approving such an agreement of the parties.

I think later on in the Multi-state Tax Commission that we cited in our brief, in that case the Court explicitly cited this case as well as the Virginia v. Tennessee case for the proposition that an approval of an agreement relative to a boundary line didn't implicate the commerce clause when the underlying instrument was imprecise.

So I think it goes to the point of whether this Court could ahve approved that consent agreement entered into between New Hampshire and Maine, had that stipulation not been there, regarding the meaning of the phrase middle of the river.

And the answer to that has to be yes, and particularly for the reasons you state regarding the dissent that was raised, because there is no legal or historical authority for defining the term middle of the river as it was used in 1740 to mean a ships' channel marked by 1956 range lights that clearly was not located at the location of the solweig.

Justice Scalia: Well, I think the Court would be surprised to learn that the real disagreement between the majority and the dissent in the case was not over where the line was, but rather over whether you can accept the parties' stipulation or not.

There is no indication in the writings as I recall it that that was the difference between the majority and the dissent.

I think both the majority and the dissent understood that they had to be determining what the line was, giving some allowance to the parties' concessions, but the Court had a responsibility to determine the line.

Both things seem to indicate that, and you're telling us that the basic distinction is that the majority just thought that they had no responsiblity to come to an independent determination.

I just don't read the order that way.

Mr. Ludtke: Well, the consent decree that was approved stated specifically in the first paragraph that the master's decision is approved, and the master's recommendation provided for a line at the geographic middle.

Then the dissent raised questions that it was not the solweig... no representation was made that it was the solweig... that it was a 1956 ship channel that was being used, and raised questions about the legal authority of those devices to determine a 1740 boundary.

NH at oral argument told the Court this decision is arbitrary.

It's based on administrative convenience... we want a straight boundary line.

And the reason why that dogleg went up into the Harbor instead of emerged from a closing line is that Maine insisted at that time that a closing line not be placed across the Harbor so that it could take advantage of the reservation that this Court had allowed it in the United States v. Maine case to litigate the legal extent of its seaward boundaries.

So this was not a case where the parties intended to negotiate or to conclude a boundary in the Harbor; the dogleg portion of it was done to accommodate Maine's interests in reserving its right to litigate the question of the legal extent of its seaward boundaries.

Moreover, as the state has submmitted to the Court, the Solicitor General at that time was expressing grave concerns regarding the question of whether this would implicate rights in the United States v. Maine case by establishing a ruling that colonial charters had a legal effect in determining boundaries in the marginal sea.

Justice Breyer: Is your point this... I look at that map four.

You say go to the top of the blue line, and you say we're not talking about the blue line, we're talking about a line that would be drawn to the left of the top past Seabreeze Island.

Mr. Ludtke: That's correct, Your Honor.

Justice Breyer: All right.

Now, you're also adding that that blue line represents some kind of compromise in the case that doesn't actually make very much sense but it was a compromise.

Mr. Ludtke: That's correct, Your Honor.

Justice Breyer: So now you're saying whatever we might have done to compromise that blue line, we never said a word about the line that isn't there, and by the way, it wasn't in the case... the line that wasn't there... so we get to litigate that afresh.

Mr. Ludtke: That's absolutely correct.

The claim is a very different claim...

Justice Breyer: Okay, I understand.

Mr. Ludtke: As stated in the complaint, the claim was for the lateral marine boundaries that ran from the mouth...

Justice Breyer: Okay, is there any theory... is there any theory of law or common sense or anything that would say, all right, the blue line... you draw the line at the lights, but the line... imaginary line... goes off to the left past Seavey's Island, you don't draw at the lights.

Now, is there anybody other than a totally illogical person who could defend that proposition?

Mr. Ludtke: There is no line... that is a natural outgrowth of the line that terminates at the lights.

Those range lights were installed in order to allow vessels to navigate up through that particular area.

Justice Breyer: And there are no range lights the other way?

Mr. Ludtke: Well, there are actually some range lights at Pierce's Island, but those range lights weren't even discussed in the context of the 1976 case.

Justice Scalia: Ms. Ludtke, the one problem with what you're saying is that it just doesn't... doesn't comport with what is said in the consent decree.

I mean, the consent decree doesn't say, oh, you know, let's just draw the line here arbitrarily... we have to draw it somewhere.

It begins by setting forth the Order of the King and Council of April 9, 1740, and it then continues as used in that Order of the King and Council the term... not just the term middle of the harbor, but also the term middle of the river... mean the middle of the main channel of navigation.

I mean, there's just no other way to read the consent decree except as addressing that precise issue and not coming to some just arbitrary... not based on the 1740 consent decree line through the middle of the harbor.

They thought that they were doing... being faithful to the Order of the King and Council.

Mr. Ludtke: Your Honor, I would disagree with that based on the oral argument when NH represented it to the Court that that was an arbitrary location based on the administrative convenience of the parties.

Moreover, it does...

Justice Scalia: Where was that?

In the oral presentation?

NH said what?

Mr. Ludtke: NH in the oral arguments that those locations were arbitrary and based on the desire for the administrative convenience of their respective states.

Chief Justice Rehnquist: But that doesn't certainly mean that Maine necessarily agreed with that.

Mr. Ludtke: Your Honor, Maine did not take the position at this time that this was a litigated issue or that this was an issue that actually was tied to the historical location of the ship's channel...

Justice Scalia: Well, then you shouldn't lie about it.

If you think it's arbitrary, you shouldn't sign a piece of paper that says the Order of the King and Council says this, and what that Order means is this.

Mr. Ludtke: Your Honor...

Justice Scalia: That is simply incompatible with getting up and saying the line is arbitrary.

If you believed it was arbitrary, you shouldn't have signed this is seems to me, and I think we can hold you to what you sign.

Mr. Ludtke: Your Honor, the history of the litigation shows that at the time that Maine and NH entered into this decree, which was 1974, both states did it with the best of intentions.

There was not a searching historical inquiry into what the phrase up the middle of the river might have meant.

Both states did it with the best intentions without a thorough inquiry into what the history was.

Justice O'Connor: Well, at the very least it didn't mean the low-water mark on the Maine shore, did it?

I mean, no matter what you had in mind, it was some version of the middle of the river.

Mr. Ludtke: Your Honor, I think the question goes to the applicability of that phrase to describe the harbor boundary.

At that time the both Maine and NH believed with the best of intentions and the best of understanding that that phrase applied to the harbor boundary.

We have since changed...

Justice O'Connor: Excuse me, I just... I don't think I had an answer to my question.

How could the term the middle of the river, which you've agreed to, mean the low-water mark on the Maine shore?

Mr. Ludtke: Your Honor, our position on the term up the middle of the river means that... we take the position that as historically used that was intended to describe the course of the boundary up the main part of the Piscataqua River, and it was intended to direct that the line that proceeded north two degrees west went from the main tributary that was that the main feeder stream into the headwaters of the Salmon Falls River, and we have shown through the 1763 boundary proceedings and the 1828 boundary proceedings that that is how that term was used.

We do not think that that term is properly applied to the harbor boundary.

In 1973, both Maine and NH and a special master all thought that term had some relevance to the harbor boundary, with the best of intentions, because there had not been a searching historical inquiry into what that language meant, and it was an easy mistake to make.

Justice Stevens: May I ask then...

Mr. Ludtke: The NH...

Justice Stevens: If I understand you correctly, if you were counsel for NH in 1976 and you then knew what you now know, would you have signed this decree?

Mr. Ludtke: No, Your Honor.

But that's not what they knew, and they did it with the best of intentions.

Justice Breyer: All right, so that's what worried me.

When I read this until I heard you actually, I thought, well, gee, I don't understand what this argument is, becuase the reading of this decree seems to say when you take the middle of the river or middle of the harbor or middle of anything, it seems to take the main channel of navigation divided down the river.

Now, you've read it closely and you say that this part of it wasn't actually an issue.

Well, maybe that's true, but if we start reopening boundary decrees, it seems to me we are going to get into a lot of trouble because there may be a lot of boundary decrees among the states that have parts that, if you really looked at them, they might not have been perfect or perfectly described.

So why not just hold you to this, even though it was all done by mistake and with the best of intentions and so forth.

Mr. Ludtke: Your Honor, we're not trying to get out of anything that was decided in 1976.

Justice Breyer: It wasn't literally decided, because it wasn't directly an issue in the case.

I assume that nonetheless the words in this decree surely cover it, don't they?

Mr. Ludtke: Your Honor, the issue wasn't actually adjudicated.

The applicability of this phrase was an assumption that the parties brought to the negotiations, and the boundary was set out based upon those negotiations.

There was no actual intent... no actual adjudication of whether this phrase applied.

The portion of the boundary at issue was not the harbor boundary.

There is no intent to make this apply... that was clear.

And I think that the most troublesome aspect... and that's why I addressed this question first... is whether this Court could have entered throught a consent decree in 1976 had the parties' stipulations pertaining to the meaning of the middle of the river not been there.

I think the Court could have entered it, because the boundary description describes the boundary as passing up through the mouth of Piscataqua Harbor, and it would have been reasonable, given that description of the boundary, for the parties to agree upon a locatoin in the middle.

But the point is that neither the application nor the meaning of the phrase up the middle of the river was actually adjudicated in 1976.

Justice Kennedy: What effect do you think should be given to the 1740 decree?

Mr. Ludtke: The 1740 decree is a relevant piece of historical evidence.

Justice Kennedy: Yes... is relevant historical evidence, or is irrelevant?

I didn't hear.

Mr. Ludtke: No, we've actually stated it is relevant to when we've listed the items that we believe fair on NH's boundary claim, and that's on page twelve of our motion and our brief.

Justice Kennedy: Well, why can't I read the consent... why can't I read our earlier decision... our decree as saying that the 1740 determination is controlling of the boundary?

Mr. Ludtke: Your Honor, I don't think that decree can be read in that way becuase therre was no adjudication of the issues.

The claims are very different in this case.

No intent can be inferred, and it was not essential to this Court's jurisdiction to enter judgment.

And I think that's been made clear by the Court's citation...

Justice Kennedy: Why shouldn't the 1740 decree be relevant to part of the dispute and not another part of the dispute?

Mr. Ludtke: The 1740 decree describes the boundary as passing up through the mouth of the harbor, and we believe that is relevant.

But what we think is more relevant is the historical evidence.

Justice Scalia: They said the middle of the harbor, precisely.

Mr. Ludtke: It doesn't say the middle of the harbor.

It says it shall pass up through the mouth of the Piscataqua harbor and up the middle of the river.

Justice Scalia: And that the dividing line shall part the Isles of Shoals and run through the middle of the harbor between the islands to the sea on the southerly side.

Mr. Ludtke: That's correct, Your Honor, but the dividing line is not what's at issue here.

What's at issue is the phrase passing up through the mouth of Piscataqua Harbor, and NH has made a claim based upon its right as a successor sovereign to the Crown at the Revolution when the province of NH's boundaries extended to the Maine shore.

Justice Scalia: At one point it seems to me it does say just passing... where is it... through the mouth of the Piscataqua Harbor.

But then later when it refers to the same line it says run through the middle of the Harbor.

So it does say middle of the Harbor, and you're essentially arguing that the middle of the harbor means something different than middle of the river.

Mr. Ludtke: No, Your Honor.

Middle of the harbor refers to Gosport Harbor and, in fact, there is a distinction there because the decree says specifically that it passes through the middle of Gosport Harbor whereas it only says it passes through the mouth of Piscataqua Harbor which, at that time, was annexed entirely to the province of NH governed and controlled and administered by NH provincial officials.

NH collected tonage, NH collected in...

Justice Ginsburg: May I stop you there just for a moment, because I want to be clear on how much you want to go back.

I understand that you say that the settlement that was entered into in '77 was for that case only.

You have answered Justice Kennedy that the 1740 Order is relevant evidence but not conclusive.

Are you attacking that 1740 Order also as not the basis... whatever it means?

Are you saying it is not the proper basis for determining this boundary?

Mr. Ludtke: We think that the 1740 Order needs to be reconciled with history.

We don't think that the apparent meeting of the text can trump history.

What we have done is look at history and try to understand the text of that Order in a context of history, and that has been the reason for our great reliance on historical events and documents in explaining what the terms of that 1740 Order...

Justice Ginsburg: Are you saying it's not binding?

For what reason?

Because that was intended to be a settlement... a decision by the King... ultimately by the King.

Whatever those words may mean that are set out in 2(A)... isn't that at least conclusive between these two states?

Mr. Ludtke: Yes, and we say those words are entirely consistent with the boundary located on the Maine shore, becuase those words were intended to direct that the boundary follow the Maine part.

And we have cited the charter and are connected...

Justice Scalia: And what language places it on the Maine shore?

I mean, I can understand you're saying middle of the river means you follow... you follow the main channel of the river and not one of the side channels, but what portion of that 1740 decree... unless it's a terribly sloppy piece of work... what portion of it says when you follow the main channel you use the Maine shore?

The first one is m-a-i-n, and the second is M-a-i-n-e.

I thought that was clear.

Mr. Ludtke: The boundary decree describes the boundary as passing up through the mouth of Piscataqua Harbor, and NH has shown through historical evidence the the Harbor was annexed to NH, and that the boundary commissioners had no authority to divide the harbor.

We cited...

Justice Scalia: But they would have said something about it.

Where in the 1740 Order do they refer to the Maine... with an e... shore?

I don't see anything there that refers to the Maine shore.

Mr. Ludtke: Your Honor, may I make an answer?

Justice Scalia: I wish you... yes.

Mr. Ludtke: The boundary decree, although it says passes up through the mouth of the harbor has to be construed in the context of the authority of the boundary commissioners, the authority of the treasury over ports, the authority of the King to withhold navigable rivers and ports from Royal provinces without charters...

Rebuttal of Paul Stern

Chief Justice Rehnquist: Thank you, Ms. Ludtke.

Mr. Stern, you have four minutes remaining.

Mr. Stern: Thank you, Your Honor.

There has been a suggestion today that the river does not equal harbor.

A special master at the time was pretty sure that the harbor and the river were coextensive.

NH back in the 1970s specifically stated that the mouth of the harbor is the same as the mouth of the river.

Justice Scalia: Are there two harbors here, by the way?

She said there is Gosport Harbor and another harbor.

What are the two harbors?

Mr. Stern: Gosport Harbor is the harbor out at the Isle of Shoals.

Out at the islands in the sea.

Justice Scalia: Oh, out by the... okay.

Mr. Stern: Piscataqua Harbor or Portsmouth Harbor is the one we're talking about.

Justice Scalia: I understand.

Mr. Stern: But in the 1970s NH was pretty clear that mouth of the harbor equalled mouth of the river and they stated that in pleadings to this Court at 315(A) and 329(A) of Maine's appendix.

Justice Breyer: What is the answer to a simple argument that that area to the left... you go to the top of the blue line, you look left, and there's a dotted line.

Is that dotted line... whatever we said in that decree, it wasn't an issue in the case, and therefore we want to go back into it.

Mr. Stern: The whole river was before the Court because what's been lsot in the argument here, I believe, was that therre were two main events, so to speak, with respect to the 1970s litigation.

One was whether the line going out from the Portsmouth Harbor to the Isles of Shoals was straight or crooked in some way.

Chief Justice Rehnquist: Okay.

Mr. Stern: The second one, which is the one that the dissent addressed, was where in the river was the boundary because depending upon where it was... geographic middle, solweig, or the Maine shoreline, it would determine how much territory was in each state.

But to suggest that NH didn't have the incentive to claim a shoreline in Maine is... borders on implausible because it would have resulted in hundreds if not thousands of additional acres of territory being in NH rather than Maine.

They would have called it NH special exceptions.

To the special message, I argue to this Court that the boundary should be moved over a bit... three hundred and fifty feet in the middle of the river... to get some additional territory.

A shoreline boundary would have increased that manyfold, so NH had the incentive to press a claim to the shoreline boundary.

The notion that we can suggest today that the Attorneys General in the 1970s didn't know anything... didn't know what we know today... is exactly why we have res judicata.

The circus of what we almost would have to do is bring those folks back in and cross-examining them is why we have res judicata.

NH had the opportunity to press a shoreline boundary which had all the incentive and the fair opportunity to do it in the 1970s.

Its failure to do so precludes it from doing so now, and the reason we have these specific findings, rulings and legal principles accoridng to NH, as they explained in the 1970s was to avoid the Vermont v. New York problem where there was a decree without findings, without an adjudication of any issues.

Because of that concern that this decree might not be approved, these specific findings and rulings and legal principles were laid out here, and they are made without reservation.

Getting back to Justice Breyer's question, paragraph five, if we can read the line, says quote... the middle of the main channel of navigation of the Piscataqua River, commencing in the vicinity of Fort Point and Fishing Island... so it's an effort... maybe not an exact effort, but it's an effort to lay out the middle of the main channel of navigation of the Piscataqua River.

There may have been reasons to have it as a straight line in that channel, but it is an effort.

Chief Justice Rehnquist: Thank you, Mr. Stern.

The case is submitted.