Cases by Issue - Boundary Dispute Between States

New Hampshire v. Maine - Oral Argument

Fri, 09 Jan 2009 14:50:32 +0000

Case:

New Hampshire v. Maine

Media File:

130orig_20010416-argument.mp3

Related Transcript:

transcript.xml

Transcript:

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.

Attribution:

The Oyez Project

Featured:

New Jersey v. New York - Oral Argument

Fri, 09 Jan 2009 14:50:05 +0000

Case:

New Jersey v. New York

Media File:

120orig_19980112-argument.mp3

Related Transcript:

1997_120_orig_argument.xml

Transcript:

Argument of Joseph L. Yannotti

Chief Justice Rehnquist: We'll hear argument now in Number 120 Original, New Jersey v. New York.

Mr. Yannotti.

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

In his final report the Special Master concluded that New York's jurisdiction on Ellis Island was limited to the island as it existed in April 1834, and New Jersey is sovereign over the portions of the island created by artificial filling of submerged lands in the years after 1834.

Although we take issue with the amount of territory allocated to New York and with the recommended boundary line of the Special Master, we would first like to offer the Court our reasons why we believe the Special Master's principal conclusion is legally sound and amply supported by the record.

First, the Special Master correctly interpreted the 1834 Compact between the States which fixed the territorial limits and jurisdiction of New Jersey and New York along their common boundary.

Unknown Speaker: My only observation about that, and it helps your case, I think, I was a little puzzled that the Special Master did not pay more of a... put more weight on the Holmes' opinion in Central--

Mr. Yannotti: Well, we certainly did place a great deal of weight on the Holmes' opinion and we do think--

Unknown Speaker: --The Special Master didn't seem to think... it seems to me it... on the sovereignty issue that if New York is right we have to overrule that.

Mr. Yannotti: --Well, they certainly did make that argument below before the Special Master.

Some of the amici have made that point.

I did not see a direct attack on the Holmes' opinion or request to see it overruled in the Exceptions, so I'm not sure that's an issue--

Unknown Speaker: We would have to overrule it were New York to have sovereignty, would we not?

Mr. Yannotti: --Yes, I think so, Your Honor.

I think that case squarely decides the question of sovereignty over the submerged lands.

What the Court rejected in that case was an argument that all New Jersey had under the Compact was a right of property under these submerged lands.

Unknown Speaker: Now, as to the meaning of the jurisdiction that remains, Holmes' opinion is not quite clear, and I think that probably needs further elaboration.

Mr. Yannotti: Under Article III?

Unknown Speaker: Yes.

Mr. Yannotti: Yes, well--

Unknown Speaker: Well, or whether there is a difference in Article III jurisdiction or Article II jurisdiction is not clear from Central Railroad.

Mr. Yannotti: --Well, Justice... Justice Holmes indicated in the Central Railroad case that under Article II, New York had retained its present jurisdiction of and over Ellis Island, which he interpreted to mean was the States intended to preserve the status quo ante, and the status quo that existed in 1834 was a situation where Ellis Island was on the New Jersey side of the boundary, it was a 2-3/4 acres of fast land to mean high water, it was owned by the Federal Government, who had acquired it in 1808 from the State of New York, and it was utilized as a military fort.

New York, in fact, had ceded jurisdiction to the Federal Government in those conveyances, and retained only the right to serve civil and criminal process, so that was the jurisdiction that was retained by the State of New York.

That was the... what we contend was the present jurisdiction in 1834 when the agreement was made, and moreover, our view is that the States recognized that the island then in existence which was, as I said, 2-3/4 acres, was the Ellis Island that was being addressed by the terms of that Compact, so I do--

Unknown Speaker: Mr. Yannotti, at least as to the land that was once submerged and has now been filled in, there was a significant argument made that Holmes was wrong, at least to the extent that he defined exclusive rights of property to mean sovereignty.

Mr. Yannotti: --Well, I respectfully argue that Holmes was not wrong, and that he reached the correct conclusion.

In fact, what he did in that opinion for the... for a unanimous Court was to base his judgment upon the prior decision of the New York Court of Appeals of 1870, which had concluded essentially that the territorial line was the principal and dominant purpose of this agreement, that the State of New Jersey was sovereign on its side of the boundaries--

Unknown Speaker: Well, that part I understand, the equation of boundary with sovereignty.

Mr. Yannotti: --Yes.

Unknown Speaker: But Holmes also said something about exclusive right of property.

Mr. Yannotti: Yes.

Unknown Speaker: And you know the three-way division that was offered in some of the briefs, of the property right and the public access right and the governing right.

Mr. Yannotti: The argument was made that all New Jersey had was the sovereign right of property, and he found that that actually supported the notion that New Jersey was sovereign in this territory, and he said that the ownership of submerged land was indicative of the division of sovereign territory and actually furthered and supported the notion that this was a line not only of territory but of jurisdiction and sovereignty, so I think the... what Justice Holmes said--

Unknown Speaker: So property means jurisdiction and exclusive jurisdiction doesn't mean exclusive jurisdiction.

Mr. Yannotti: --Well--

Unknown Speaker: Is... would there have been a clearer way to say that one of the States had governing authority--

Mr. Yannotti: --Well, I think it--

Unknown Speaker: --than to use the phrase, exclusive jurisdiction?

Mr. Yannotti: --The... I think it's important to focus also, not only on that but also on the notion exclusive jurisdiction over the waters, and I think that is the key element of that Article III, because New Jersey had recognized that New York had exclusive jurisdiction, but it was limited.

It wasn't full sovereign governmental authority.

It was limited to control of the waters, and that's how the New York Court of Appeals interpreted Article III in 1870, to mean--

Unknown Speaker: Well, it was control of the waters.

It also referred to the submerged lands.

Mr. Yannotti: --That's correct.

Unknown Speaker: And isn't there a fair argument to be made that when the submerged lands become in effect the basis for filled land, in place of what had been water subject to New York's jurisdiction, that that same territory now newly created above the ground becomes subject to the same exclusive jurisdiction?

Mr. Yannotti: Well, our argument is that that is not the case, and we rely in that regard upon, again, that 1870 decision of the New York Court of Appeals, which said that although there was in Article III a reference to jurisdiction over the submerged lands, that was merely subordinate to and in furtherance of the power over the waters, and it was... the New York Court of Appeals gave it a very limited reading in that case, and in fact in the 1908 decision by Justice Holmes the Court specifically upheld the taxation of submerged lands--

Unknown Speaker: Yes, but how could it have no meaning?

That is, let's assume you're right.

You're right that... I'm assuming... that this is within the sovereign... your sovereign... New Jersey has sovereignty.

Mr. Yannotti: --Yes.

Unknown Speaker: Because of Article I.

Still, isn't there some kind of jurisdiction to do something--

Mr. Yannotti: Our view of--

Unknown Speaker: --given by Article III, and is... you want an injunction, which injunction says New York can do nothing.

Mr. Yannotti: --Yes.

Unknown Speaker: All right.

How can it be that they could do nothing when Article III says they have jurisdiction over the land below the water and the water?

I mean, maybe that jurisdiction doesn't mean sovereignty.

Maybe it only means a few things, like just serve process even, but doesn't it mean something?

Mr. Yannotti: Well, again I think the... we go back to the decision of the New York Court of Appeals in 1870, and what the court said was that this was a jurisdiction over navigation.

Unknown Speaker: All right, so--

Mr. Yannotti: And once the waters were filled there was no basis upon which to exercise jurisdiction over ships and vessels on the water, that the jurisdiction essentially... there was no basis upon which to exercise that jurisdiction when the land was filled.

Unknown Speaker: --In other words, exclusive jurisdiction doesn't mean that.

It means that the only thing you could deal with is a ship, so that it--

Mr. Yannotti: It does mean exclusive related to ships, related to navigation.

Unknown Speaker: --So suppose there is a ship, a ferry boat tied up at the pier that now is in New Jersey's sovereign territory next to that immigration house, all right.

Doesn't New York have jurisdiction over that?

Mr. Yannotti: That's specifically addressed in Article III, where New York's jurisdiction is recognized, at least to the extent--

Unknown Speaker: Fine.

If New York has jurisdiction over that, on your theory, how can you receive an injunction, which is what you requested, saying that they couldn't enforce their law at all?

Mr. Yannotti: --Well, I think... again, my point is that this is a jurisdiction as it relates to vessels, and if they're tied to a port facility on the New Jersey side that creates an entirely different situation than to have filled land, because they cannot--

Unknown Speaker: So what sort of injunction... this is what's confusing me.

The injunction that you requested is an injunction that says New York cannot enforce its laws or assert its jurisdiction.

Then once you say that there is something at least they could do, even if it's just to a boat that's tied up, then how could you be entitled to that injunction?

Mr. Yannotti: --That is not... again, the request that we sought relates to exercise of jurisdiction on the land.

Not on the waters, not on boats who are still on the waters that may very well be tied up on... to a New Jersey pier, or to a portion of land that is subject to the jurisdiction of the State of New Jersey.

Unknown Speaker: And I didn't find in the Special Master's report a discussion of what exclusive jurisdiction meant.

I understood that he gives... he believes that New Jersey is sovereign, and I accept that, so what are we to do to decide whether exclusive jurisdiction means you can do zero, New York can still do zero in respect to the submerged land?

Mr. Yannotti: Well, again it relates to the--

Unknown Speaker: Related to the land.

Mr. Yannotti: --It relates to the subject matter of that jurisdiction and as it's been interpreted by the courts, that jurisdiction relates to... the subject matter is navigation, pertains to vessels while they are on the waters, and that is the... that is the limit there of the jurisdiction.

Unknown Speaker: Well, the master touched that in part at page 67, when he said interpreting exclusive jurisdiction in Article Third to mean police or legal jurisdiction as the only reading of Article III that prevents such serious anomalies, but he... and he... but he addressed it no further than that.

Is that--

Mr. Yannotti: Right.

Well, I think this specific argument that's now being offered with regard to the... some residuum of Article III jurisdiction over the filled lands is not an issue that was really raised very much by the State of New York.

It's only come in now in the context of the Exceptions, so the master did not really... it was not an argument that was pressed before the Special Master.

Unknown Speaker: --Mr. Yannotti, I'm a little curious as to why New Jersey did not make the argument which seems to me available that the Compact only gives New York exclusive jurisdiction over lands covered by the Hudson, and these lands are not any more covered by the Hudson.

If you read that phrase as meaning covered from time to time--

Mr. Yannotti: Well, I think that essentially what--

Unknown Speaker: --you'd be home free.

Mr. Yannotti: --Essentially what we have been saying.

You put it better than I did.

But I think the point is that once they are covered, once they are filled, there is no... there is no... nothing upon which to exercise that jurisdiction.

It is... it is... we made it--

Unknown Speaker: I did not understand you as having made that argument.

Mr. Yannotti: --Well, that has been our point, and I do believe we have that in our brief, but it is our argument that once the lands were filled, that there is no basis upon which New York may exercise that jurisdiction under Article III.

And let me add further with regard to these, what we perceive to be sound interpretations of the Compact that were reached by the New York court in 1870, and also by the New Jersey Court of Errors and Appeals, our highest court, these rulings, which were the basis upon Justice Holmes' decision in 1908 have been accepted by both States, and they have... they have become over time the... a meeting of the minds between these two States as to the meaning of this particular compact, and we think for that reason, too, the Court should reaffirm what Justice Holmes said in his... in the 1908 decision and apply that principle to the submerged lands here once they are filled.

Let me--

Unknown Speaker: One point on jurisdiction.

Is it your point that Article III exclusive jurisdiction is of somewhat lower order than the word present jurisdiction in Article II?

Mr. Yannotti: --Well, in order to determine the present juris--

Unknown Speaker: Because if so that's a strange use of words, as Justice Scalia pointed out.

Exclusive jurisdiction seems to me broader.

Mr. Yannotti: --Well, present jurisdiction, really in order to ascertain precisely the meaning of that you have to go back to the situation as it existed in 1834 to determine what was the jurisdiction, and at that time New York had virtually no jurisdiction.

They had ceded everything to the Federal Government, and the island had been used in those days as a military fort for the exclusive purposes of the Federal Government.

It was a Federal enclave, and New York had no presence there, and New York exercised no jurisdiction there, and so therefore that is the present jurisdiction.

And if you perceive that to be a lower, some lesser element of jurisdiction, it certainly is supported by the factual record, which shows that this was a Federal enclave subject to Federal jurisdiction.

The Special Master also determined that New York had failed to establish its affirmative defense of prescription and acquiescence, and on this point, too, we think that the Special Master's analysis was correct.

We urge the Court to accept it.

Again, as I mentioned, this was an island that was under the Federal Government's exclusive control.

This was true prior to the filling in 1890, which commenced in 1890, and it was certainly true right on through the period, the immigration period which New York focuses on so strenuously.

There was little opportunity for either State to exercise jurisdiction in the Federal enclave, and our view is that that being the case, New York could not establish the requisite degree of government dominion and control in order to place New Jersey on notice that it was prescribing jurisdiction over this territory.

What is more, New Jersey did not acquiesce in the purported assertion of jurisdiction by the State of New York, and as the record amply demonstrates, there were extensive instances where New Jersey either took prescriptive acts, or asserted claims to the territory which were sufficient enough to establish New Jersey's assertion that there was nonacquiescence in New York's claims, so on this point, too, we think the Special Master was correct.

Unknown Speaker: Mr. Yannotti, are you going to talk about the recommendation of the master that the actual territorial boundary he proposes be adjusted to take care of certain buildings and improvements?

Mr. Yannotti: Yes, I do, Your Honor.

I think... I understand from the Chief Deputy Clerk that the Court does have the map in front of it today, and that map illustrates, as does Appendix K in the Special Master's report, it illustrates this proposed boundary to which we've taken exception.

As you can see on that map, the original island to the mean high water is indicated there, and that is not the line of demarcation that has been recommended to the Court by the Special Master.

Our view is that the Court's role--

Unknown Speaker: What's North and what's South on this map?

Mr. Yannotti: --North would be to the right, West would be to the top of that map.

Unknown Speaker: Thank you.

Mr. Yannotti: And the Special Master, of course, has completely departed from the line, the mean high water line from 1834, which is what New Jersey contends is the line which should be employed.

The Court has said that when the States make a boundary agreement, and when such an agreement is approved by Congress, that the... an agreement of that sort is a law, a Federal law, and the Court is without authority to depart from the terms of that agreement, and regrettably that is what the Special Master has recommended here.

We think that that is not an appropriate exercise of the Court's power in this regard, that the Court should abide by the boundary that was agreed to by the States.

If there are practical concerns that relate to that in its implementation, that remains to the States, with the oversight of Congress, to make whatever adjustments might be deemed appropriate.

Unknown Speaker: Do you think we have any choice at all?

You say we should.

Mr. Yannotti: Well, I think--

Unknown Speaker: Isn't it the case... I thought your position would be that we must.

Mr. Yannotti: --Yes, it is, Your Honor.

Unknown Speaker: We must because of what?

Mr. Yannotti: We must... you must because that is the essential role of the Court in this case, to define the boundary.

This is a case about boundaries, not about buildings, and the Court's--

Unknown Speaker: Well, isn't it also because we're bound by an act of Congress?

Mr. Yannotti: --Yes, they said that.

What the Court said in Texas v. New Mexico was that once an act of Congress, an agreement like this which is approved by Congress, it becomes a Federal law, and the Court cannot enter relief that is inconsistent with the terms of that law, and for that reason we think that the Court is limited in providing relief in this case to the boundary that was agreed by the States, and cannot employ practical considerations to write or create a boundary, what the Court may perceive to be a better boundary.

That judgment's already been made by the States, and recognized by Congress, and we think it ought to be respected by the Court.

Unknown Speaker: May I ask you once more to clarify... I'm still fuzzy about it... what authority New York... what authority does New York have and enjoy... those are the words of Article Third... as a result of that grant of exclusive jurisdiction?

Mr. Yannotti: It has jurisdiction... a navigational jurisdiction over the waters, and it would pertain to vessels, ships, and passengers as they are on those waters in New York Bay and the Hudson River in this particular area.

Unknown Speaker: So with respect to the ferry going back and forth to Ellis Island, New York has control of that, is that--

Mr. Yannotti: Well, yes.

So long as it's on the waters.

Then New York would have some measure of jurisdiction over that, exclusive jurisdiction.

Unknown Speaker: --What's some measure?

Mr. Yannotti: Exclusive jurisdiction.

Unknown Speaker: Which sounds to me like only.

Mr. Yannotti: Well, yes.

We're not saying New Jersey would have jurisdiction over it, but the exact parameters of it, the extent to which they would exercise control, that is not... has not been elucidated in any particular decision, but I'm not sure that the Court needs to address the full extent of the jurisdiction of New York while a ship is on the waters.

Unknown Speaker: Oh, I assume they can exercise control to the maximum extent that any State can ever exercise controls.

Mr. Yannotti: Within the subject matter limitation.

Unknown Speaker: What was the submerged land?

What do you think they can do, the exclusive jurisdiction over the lands covered by said waters?

Mr. Yannotti: It relates also to navigation.

For example, the case of State v. Babcock, which was an early decision by the New Jersey trial court in [= 1852], what happened in that case was there were vessels which were sunk onto the underwater land, and the... an action was brought in New Jersey for criminal... a criminal action to prosecute that, and the Court held that that was within the jurisdiction of the State of New York.

Unknown Speaker: Thank you, Mr. Yannotti.

Mr. Minear, we'll hear from you.

Argument of Jeffrey P. Minear

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

The master correctly rejected New York's contention that Article Second of the Compact of 1834 gives New York sovereignty over the filled areas of Ellis Island.

The Compact was written against a back-drop of common law rules respecting coastal boundaries, and those rules recognized that avulsive changes such as the addition of fill did not change the location of the boundary.

The Compact does not address fill, and it does not purport to alter the common law rules.

As a result, the Compact should be interpreted as following the common law and therefore granting and preserving New Jersey's sovereignty over the filled areas.

Now, the master was also correct in rejecting New York's contention that the filled portions of Ellis Island became territory of New York through the doctrine of prescription and acquiescence, and we think the single most important consideration on this score is the fact that the United States exercised dominant and virtually exclusive jurisdiction over the island during the relevant time period.

Now, the United States presence is important for two reasons.

First, the United States recognized New Jersey's claim to the filled lands by purchasing that area from New Jersey and by indicating in subsequent maps that it was situated in New Jersey.

Second, the United States' dominant sovereign presence prevented New York from taking those acts of sovereignty that would have established its claim of entitlement to the filled areas, and likewise would have put New Jersey on notice of the fact that New York was making such a claim.

Now, New York also makes a claim that New Jersey is guilty of laches in this case, but that really adds nothing to New York's claim in this case at all.

As this Court indicated in Illinois v. Kentucky, the equitable defense of laches is subsumed within the doctrine of prescription and acquiescence, so nothing is added by making those types of charges here.

Now, although we agree with the Master's determination of the historic boundary on Ellis Island, we disagree with his ultimate remedy, which would reconfigure the boundary based on considerations of practicality and convenience.

We think it's important to note at the outset that New Jersey asked this Court to determine the historic boundary line.

It did not request that the Court withdraw the boundary.

Neither did New York make such a request, as well.

But equally important, the master's proposal would require this Court to exceed its historic role in determining--

Unknown Speaker: Do you think our position would be altered if they had asked us to redraw the boundary?

Mr. Minear: --If they had, then I think you'd be faced squarely with the question of whether you have that power or not, and we think that--

Unknown Speaker: Oh, I see.

I see--

Mr. Minear: --you do not.

Unknown Speaker: --That's your point.

I thought your point was that if they had asked us, we would have the power.

Mr. Minear: No, that's not, but they have not even asked in this case.

[Laughter]

Unknown Speaker: I agree with Justice... what difference does it make, Mr. Minear, at this point in the litigation, if we were to say that we reject the master's drawing of the boundary line because neither party ever asked for it?

I mean, presumably there could be further... some sort of an amendment to the complaint and they could bring it up again.

Mr. Minear: Well, that might be the... that might be the case, but we think that ultimately the Court lacks the power to draw that boundary in any event--

Unknown Speaker: Then it really doesn't make any difference whether they asked for it or not.

Mr. Minear: --Ultimately it does not, but we do think it's significant that neither party asked for it, and this Court does not often grant relief that neither party requested.

Now, in the past this Court has decided boundary disputes based solely on its interpretation and application of relevant law, and the Court explicitly recognized that limitation in Washington v. Oregon, where Washington had asked this Court to change a boundary based on changed circumstances, and this Court refused to do so.

It refused to do so even though the adjustment would implement an underlying policy that Congress might have preferred.

As that case indicates, once this Court determines the location of a boundary, its judicial role is at an end.

Unknown Speaker: But that case involved a variable boundary, a boundary that could be here today and some place else tomorrow, as opposed to what the Special Master has done here.

He has fixed or recommended fixing a boundary that would not be variable.

Mr. Minear: That's correct, but in this case what we're saying is the historic boundary should be fixed by the original contours of the island, because that's what Congress and the parties intended by virtue of the Compact of 1834.

Unknown Speaker: I'm just suggesting that there's a little space between the Washington v. Oregon case and this one.

Mr. Minear: That might be, but we think ultimately the general principle at stake in Washington v. Oregon does control here, which is that this Court should respect the power of the political branches to determine boundaries and draw those boundaries and, in fact, the Constitution provides for adjustments of boundaries if need be.

There is a Compact Clause of the Constitution that does allow the States to agree, with Congress' consent, to the alteration of the boundary, and that's in fact what actually happened in Washington v. Oregon.

That is how that dispute was ultimately settled, was by virtue of a compact between the two States to alter the boundary.

Unknown Speaker: How do you do this little... maybe it's just a minor... I don't know.

The problem's still bothering me.

In the first three paragraphs of the Complaint for Relief, New Jersey wants boundaries drawn in a certain way, and you basically agree.

Mr. Minear: That's correct.

Unknown Speaker: Assuming that right, what do we do about paragraph 4, where they ask for an injunction that no New York law at all can be enforced on the filled land?

Mr. Minear: I think--

Unknown Speaker: That's what was disturbing me because of the concern that I had that exclusive jurisdiction might mean something in respect to that filled land.

Mr. Minear: --I think that takes us back to the suggestion that the United States made at the point when the complaint was first filed in this case and the Court asked for our views on this matter, and at that point we explained that there might be a number of issues that can only be resolved in a specific factual context, and so those issues are simply not ripe at this point.

We think that--

Unknown Speaker: So what are we supposed to do, then, about that?

Mr. Minear: --We think all the Court can do at this point, all the Court should do at this point is draw the... describe where the historic boundary is, and just simply indicate that any other dispute that might arise can be handled by the parties seeking further relief, as the Court has decreed.

Unknown Speaker: So we should not... I think the master, but I'm not certain, recommended that we accept that paragraph 4, but we should not, in your opinion, do that.

Mr. Minear: As a--

Unknown Speaker: I'm not sure about--

Mr. Minear: --My recollection might be... might not be completely accurate, but I'm not sure the master specifically addressed that question, but he... his proposed decree does leave it open to the parties to seek further relief at the foot of the decree, which is common in the case of original actions and original decrees.

Unknown Speaker: --I can't think of an original action since I've been here in which the issue is not who owns the land but where one State is simply suing, claiming that the other State has no jurisdiction over a particular action over a particular thing.

Usually that issue comes up in the context of a private party defending against the asserted jurisdiction by one State or the other.

Mr. Minear: That is correct, and that's... this case is unusual insofar as the United States owns title to all of the land in question here.

Unknown Speaker: I understand, but you're saying we don't have to decide that question now because the States can come back later when there is more factual context to it, and I'm not entirely sure they can come back later to present us the question of which State has jurisdiction.

I--

Mr. Minear: Well, it's likely that the issue could arise between a State and a private party.

Unknown Speaker: --Right.

Mr. Minear: But ultimately the issue would ultimately return to this Court, and the Court would make a resolution of law in that context.

Whether there would be a direct clash between two States over a particular power of regulation is perhaps less likely.

It would actually require some situation where both States purport to have the power to regulate over a particular area, and I think that's unlikely to occur in this area simply because the United States does have title and continues to exercise dominant control.

Unknown Speaker: So Mr. Minear, in view of that, what practically is at stake?

I mean, you said the United States has been there since it was a fort, and now, and it's continuing, so the States want the boundary set, but what consequence does that have as long as the United States owns and exercises jurisdiction over the island?

Mr. Minear: Oh, there are some modest consequences with regard to certain activity, such as the collection of tax revenues and the like.

Even if the United States has exclusive jurisdiction over the entire island, which is not something that we're asserting, but even if it did, under the Buck Act the States can still collect certain types of taxes from activities that take place on the land.

Unknown Speaker: For example?

Mr. Minear: Sales taxes from concessions on the island would be one example.

Both States would have no doubt claimed some interest in the renovation of the southern portion of the island here, but ultimately we think that Congress will make those determinations, taking into account the concerns and considerations of both States.

Much of what's at stake here, and I think we indicated this at the time that we filed our initial amicus brief in response to the complaint, is a concern over a notion of the sovereign boundary as it relates to the history of the two States, and the Court has allowed this action to proceed, and we do think that's a significant question, but its practical implications are likely to be limited by--

Unknown Speaker: Is the jurisdiction of the United States limited to certain purposes?

Could the United States build an office building and rent it out to private developers if the United States wanted to?

Mr. Minear: --Well, our perspective on the jurisdiction on the island is as follows.

The United States has exclusive jurisdiction over the original 3 acres of the island that was granted by New York in 1800 as to... with respect to--

Unknown Speaker: Now, when you say exclusive, do you mean exclusive jurisdiction as defined in Article III of the Compact, or some other meaning of exclusive jurisdiction?

Mr. Minear: --No.

We mean the more conventional description of--

Unknown Speaker: Really exclusive jurisdiction.

[Laughter]

Mr. Minear: --We actually are referring to the exclusive jurisdiction as it's described in the interdepartmental study on legislative jurisdiction in 1957, which deals with this issue quite comprehensively.

But as with respect to the filled lands the United States has concurrent jurisdiction over those areas.

Thank you.

Unknown Speaker: Thank you, Mr. Minear.

Mr. Smirlock, we'll hear from you.

Argument of Daniel Smirlock

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

The Compact of 1834 and the events thereafter show that all of Ellis Island is in New York.

No other interpretation of that compact or of those events makes sense.

I'll redirect the Court's attention to Article II of the Compact, which we think is the key here, and to which very little attention was paid in the arguments of the United States and New Jersey.

Unknown Speaker: Where do we find that in the papers?

Mr. Smirlock: The appendix to our main brief, our brief on exceptions, page 51... 52, I guess, is where... 51 is where Article Second appears.

Article II of that Compact says that Ellis Island, without reservation, is in the State of New York, and as New Jersey conceded in its 1829 complaint in this Court during the negotiations for the Compact and again conceded in this action, the present action--

Unknown Speaker: Well, Article II doesn't say what you just said in so many words, certainly.

Mr. Smirlock: --No, but the parties both interpret it that way as to, there is no dispute that the grant to New York of jurisdiction over Ellis Island was in the nature of a grant of sovereignty.

The only question in this case is whether that grant of jurisdiction extends to the landfilled portions of Ellis Island as well as the original portion.

There is absolutely no dispute between the parties as to the fact that--

Unknown Speaker: Well--

Mr. Smirlock: --jurisdiction in Article Second of the Compact means sovereignty.

Unknown Speaker: --In other words, New Jersey did not concede that prescriptive rights had given New York that added jurisdiction.

Mr. Smirlock: I--

Unknown Speaker: In other words, prescriptive rights played no part in New York's jurisdiction over the original island.

Mr. Smirlock: --Correct, Your Honor.

The Compact itself, by its own force of the language of Article Second, and New Jersey concedes this, gave New York rights of sovereignty over Ellis Island as it existed in 1834.

Unknown Speaker: Well, but it doesn't say sovereignty in Article Second.

Mr. Smirlock: It doesn't, but in fact that's how it's been interpreted, and that's... and there is no disagreement that that is what jurisdiction in that article means, and the only question is whether that jurisdiction which is of the nature of sovereignty is sufficient to encompass the landfilled portions of the island that got added after 1834.

Unknown Speaker: I find it interesting that that provision also uses the magic words, exclusive jurisdiction, which later turn up in Article III, and where they're used in Article Second they quite clearly mean sovereignty, don't they?

Mr. Smirlock: I, too, find it very--

Unknown Speaker: And shall also retain exclusive jurisdiction over the other islands--

Mr. Smirlock: --Yes, and the reason that there's a distinction, by the way, between the retention of jurisdiction as to Bedloe's and Ellis Island and the exclusive jurisdiction without qualification over the other islands of the bay, which is all the islands, is that Bedloe's and Ellis have had a measure of jurisdiction over them ceded to the United States, and the Special Master made that clear.

We go a long way with the Special Master, or can go a long way.

We don't think that Article III... that it must be interpreted, the grant of exclusive jurisdiction must be interpreted to be in the nature of sovereignty for us to prevail.

We think that Article II does that of its own force, and we think that's because the Compact intended with respect to expansion of the Article II islands in the harbor, what the Compact intended is clear from what was happening in the harbor at the time, from the structure and purpose of the Compact.

What was happening in the harbor at the time is that landfill was in wide use.

As the Special Master found, and the parties have joined issue on this in their briefs, Ellis Island actually had landfill on it at the time of the Compact.

There was also substantial landfill on both--

Unknown Speaker: --May I interrupt you with just one question that puzzles me.

We can't ignore Article First, either, can we?

Mr. Smirlock: --No, you can't, Your Honor.

Unknown Speaker: The boundary is in the middle of the river, and now the portion of the river between the middle and the shore of New Jersey has exclusive jurisdiction in New York under Article Third, but how can that be... how can you say there's a boundary there if exclusive jurisdiction in Article Third means what you say it does?

Mr. Smirlock: Let me try to parse the first three articles of the Compact for you, because I think their structure proves our point.

Article I of the Compact establishes the sovereign boundary between the States as the midpoint of the bay, with, as it makes clear, certain exceptions.

The first of those exceptions appears in Article II, which gives the islands... the islands which, if they are on the western portion of the bay might under Article First otherwise have fallen to New Jersey, gives those islands without exception to New York.

Unknown Speaker: Might... would, under--

Mr. Smirlock: Would, without Article Second, but as it's agreed, Article Second gave them to New York.

Article Third deals with the waters, the underwater land, and the New Jersey shoreline.

It gives exclusive jurisdiction which, we argue, is in the nature of police power, over navigation and commerce in the harbor, and there's Compact history that supports this, and the Special Master cites it, and so do we in our brief, gives exclusive jurisdiction over both the lands under water, which we would argue probably refers to dumping, refers to ships on the ocean floor, and probably refers to landfill, because landfill gets put on subaqueous land.

Unknown Speaker: --Or anchoring buoys, I suppose--

Mr. Smirlock: Probably.

That--

Unknown Speaker: --would be necessary if you're going to maintain navigation.

Mr. Smirlock: --That sort of thing, and it refers both to underwater land and to the waters in the harbor.

Now, New Jersey says that exclusive jurisdiction is extinguished as soon as there is more land, there was new land put in the harbor, but that seems most improbable.

Jurisdiction over navigation and commerce obviously entails jurisdiction over both the waters per se and the lands in those waters, used as anchorage, used for docking, used as storage areas, used for lighthouses, and that's--

Unknown Speaker: Well, New Jersey's... as I understand it, New Jersey's answer to that argument is that New York through its courts, it already held that the whole point of that is simply in effect a navigational commercial jurisdiction, and when something was not on or moving over the water, that was the end of it.

What's your response to that?

Mr. Smirlock: --Conceding that arguendo... that's Article III... we still have to deal, we think dispositively, with Article II, because this case isn't about Article III, really.

It's about Article II's grant to New York of those islands without reservation, islands that already had... or Ellis Island did... already had landfill on it.

So the question is, and really the only question--

Unknown Speaker: The landfill being the wharf on the--

Mr. Smirlock: --The pier was built on landfill, yes.

It was about a... 4/10ths of an acre of landfill, as the Special Master found, and what was going on in the harbor at the time of the Compact was that landfill was extensively in use on both sides of the harbor.

New Jersey, and Jersey City, and Hoboken, had been extensively expanded by landfill, 750 acres of made land, as it's called, on Manhattan Island by the time of the Compact, the 4/10ths of an acre that I mentioned on Ellis Island already.

Moreover, as a... as the 1836 coastal survey map that's part of the record very vividly shows, the water around Ellis Island was extremely shallow.

It was a foot or two deep around Ellis Island at the most.

Simply to get out to 3 feet of water, which is the minimum necessary for a barge to have gotten there at the time to supply the fort, they had to build that pier, which is... was between 60 and 100 feet out into the bay.

So the use of landfill not only was foreseeable on Ellis Island, but had already occurred, so it certainly was something that the compactors had in their mind, and it is referred to in the Compact.

Unknown Speaker: --Now, you made this argument to the Special Master, I take it.

Mr. Smirlock: Yes, Your Honor.

Unknown Speaker: And he rejected it, in effect.

Mr. Smirlock: He did.

Unknown Speaker: And wherein do you disagree with his rejection?

Mr. Smirlock: I disagree with it because he said the evidence of landfill... that landfill was used... well, he agreed, frankly, with us that landfill had been added to Ellis Island.

He agreed with it, but he made nothing of that.

He disagreed with us... he said the evidence that landfill had been extensively used in the harbor was ambiguous, and frankly, Your Honor, it is overwhelming.

Unknown Speaker: So--

--But that's not all he said.

Didn't he also say, if he were to take your position, then you could extend forever, and we're not talking about just a little filling in.

We're talking about enlarging that island nine times.

Mr. Smirlock: Well, there are two answers to that.

The island was tiny, and it's still tiny.

It's still less, even with the filling, than [= 4/100ths] of a square mile, but beyond that, we think the Compact addresses that.

There's a very elaborate system of checks and balances in it.

First of all, just as a practical matter, if Ellis Island, or any island in the bay, gets extended too far in the direction of New Jersey, it's New Jersey, and that's in the western direction.

If it gets extended to the east, true, it was very shallow around Ellis Island, but very soon there was a sharp drop-off off the Jersey Flats, which is what Ellis Island is on, into the main ship channel, which was 20 feet deep, and which would have been very, very hard to fill.

Moreover, there was, as I say, a system of checks and balances.

On the one hand, if New York had wanted to fill any of those islands they would have had to buy the subaqueous land from New Jersey, which had, under Article III, an exclusive right of property in that subaqueous land, and that's what we think it means.

We think property means exactly what--

Unknown Speaker: Why do you say that if the island is extended too far toward New Jersey it's New Jersey's?

Mr. Smirlock: --Because they're islands.

New York was given the islands, and we think once they stop being islands, they stop having Article II, Article Second apply to them.

If somehow or other they became annexed to the New Jersey shore, we don't think that they would--

Unknown Speaker: Well, but you... so far as Ellis Island, it's still an island until it touches the New Jersey shore.

Mr. Smirlock: --Very much so, and that's why we still think it's New York.

Unknown Speaker: So it could extend over, all the way, right to the New Jersey shore, and even though it ultimately connected, the boundary then would be the New Jersey shore.

Mr. Smirlock: Yes.

If it... if somehow or other--

Unknown Speaker: That isn't much of a check and balance.

[Laughter]

Mr. Smirlock: --Well, wait a second.

I mean, one check and balance, as I say, is that to fill anything we would have had to obtain the right to fill on the subaqueous land that belonged to--

Unknown Speaker: But that's true of any kind of fill you put in, anybody.

Mr. Smirlock: --Well, that's true, but that was a check that New Jersey could apply.

No, we're not going to sell you this land to fill on it.

Unknown Speaker: Wait, couldn't New York condemn it?

Mr. Smirlock: Frankly, I don't see how New York could condemn it.

Unknown Speaker: Why?

Mr. Smirlock: Because the subaqueous land, insofar as it was subaqueous--

Unknown Speaker: You say New Jersey just had a property right--

Mr. Smirlock: --No, no, no.

Under Article Third it had a property right.

We concur that under the First Article, the article that establishes the boundary... as I thought I indicated, that territory was sovereign territory of New Jersey, so New York... it was not in New York.

Insofar as it was Ellis Island, or any island, Bedloe's Island, any of the other islands in the bay, those were New York, when it became above water and part of those islands.

Unknown Speaker: --Mr. Smirlock, here's what troubles me about your argument.

We do not normally, when an island is referred to in a compact of this sort, or in any deed, interpret that to mean, the island as it may exist from time to time.

I mean, that would have solved a whole lot of our cases if that's the way we interpret a reference to an island.

All of these avulsion cases where we have to decide, you know, where was the original island and so forth, if we simply interpreted island to mean, as it may exist from time to time, all those cases would go away.

Why should we give Ellis Island that strange meaning in this case?

Mr. Smirlock: Well, the meaning isn't so strange.

You're interpreting, of course, a compact, which is both a contract--

Unknown Speaker: Right.

Mr. Smirlock: --and a statute.

Unknown Speaker: Right.

Mr. Smirlock: And this Compact gives Ellis Island, including the landfill, as I'll explain, to New York.

Not only was landfill in wide use, so the commissioners would have known about it--

Unknown Speaker: It was the island then.

I mean, it might have been fill, but that was Ellis Island at that time.

Mr. Smirlock: --Well, here's the question, Your Honor.

Could the compactors actually, knowing that landfill would probably be added to those islands, could they really have imagined that as soon as 5 feet were added to that pier, 5 feet of landfill added to Ellis Island--

Unknown Speaker: Whatever that may have provided then, what Article Second clearly does... it uses the word present... it seems to preserve the status quo, what was at the time, and it's silent as to anything else, as far as I can tell.

Mr. Smirlock: --I think it preserves the status quo as to the scope of New York's jurisdiction.

That is, Bedloe's and Ellis, as to which the phrase present jurisdiction is used, had already had a measure of jurisdiction ceded to the United States.

I don't think it can be taken as a spatial limitation, and the Special Master agreed with that, Justice Ginsburg.

Unknown Speaker: How about the common law rule that avulsion doesn't change boundaries?

Mr. Smirlock: Avulsion doesn't apply here.

The common law avulsion rule, as this Court has recognized in Shapleigh v. Mier, applies only when the... it's a default rule.

It applies only when the Compact doesn't address--

Unknown Speaker: Well, I'm not at all sure you're correct that that is... you're saying that something is presumed to be accretion if you don't know how it happened?

Mr. Smirlock: --Well, no, not--

Unknown Speaker: No.

Then it's not a default rule.

Mr. Smirlock: --I'm not saying that, Your Honor.

I'm not saying it's presumed to be accretion.

I'm not saying anything about avulsion.

I'm saying that the compact deals with Ellis Island.

Unknown Speaker: Yes, but when you're talking about what happens when an island is extended by landfill, and as Justice Scalia points out in a number of cases we've had to try to analyze where were the original boundaries of the island, that sort of thing, certainly if this was a compact that didn't specify, you would think that it would follow the common law rule that an avulsion doesn't change a boundary.

Mr. Smirlock: You would, except that I am saying that it is a compact that does specify, that the grant of Ellis Island in its entirety and without exception to New York, coupled with the foreseeable use of landfill and the great--

Unknown Speaker: That's where... the master disagreed with you about the foreseeable use of landfill, so you're arguing on a factual question.

Mr. Smirlock: --Well, I am, but of course this Court has independent de novo review--

Unknown Speaker: Yes.

Mr. Smirlock: --of that very thing--

Unknown Speaker: We rarely second-guess a master on a factual issue.

Mr. Smirlock: --You very rarely reinvent the wheel, because generally Special Masters get the wheel right, but when the wheel's badly designed, I think you've got to go back and redesign it, and--

Unknown Speaker: But Counsel, just the language of Article Second itself doesn't seem to me to support your notion that whatever happens to the island... it says, shall retain its present jurisdiction, and shall also retain.

It's a matter of retaining what now exists--

Mr. Smirlock: --Mm-hmm.

Unknown Speaker: --rather than acquiring what may be added in the future.

Mr. Smirlock: Well--

Unknown Speaker: Just in terms of the language.

Mr. Smirlock: --Let's look at the rest of the Compact, because I think it supports our--

Unknown Speaker: It's only Article Second that really supports your position.

Mr. Smirlock: --No.

Article Third does as well, and I'll tell you why.

Article Third mentions the fact that New Jersey will have exclusive jurisdiction over the improvements on its own shore, and improvements, it's agreed by New Jersey, encompasses landfill.

Now, there are two possible ways to read that.

The com... the commissioners either somehow or other envisioned that there would be improvements only to the New Jersey shore, and to the Staten Island shore, which is dealt with similarly in Article V, and not to islands where landfill had already been added, or for some reason or other they didn't... they envisioned it, but didn't have to deal with it in the Compact, and I think the answer to that is the latter.

The improvements mentioned on the Jersey Shore over which New Jersey had exclusive jurisdiction would have abutted overwater and underwater land over which New York had exclusive jurisdiction and that might otherwise have given New York over the... authority over the landfill placed on the New Jersey shore.

Unknown Speaker: Or at least would have given New York the authority to stop it.

Mr. Smirlock: Yes, and the grant of jurisdiction over those improvements to New Jersey assured that they could wharf out and make land on their own shores.

Unknown Speaker: If you lose on your points, those hypothetical--

Mr. Smirlock: Mm-hmm.

Unknown Speaker: --you lose on Article II--

Mr. Smirlock: Mm-hmm.

Unknown Speaker: --and suppose I were to think, no, Article II gives sovereignty to New Jersey over the fill.

Well, then is there an additional point, or do you concede then, if New Jersey has sovereignty over the fill, that New Jersey law applies over the fill?

Mr. Smirlock: I don't, Your Honor.

I don't... I mean, I don't concede that New Jersey has sovereignty over the fill because--

Unknown Speaker: I understand that, but I'm trying to work out a phrase in the injunction.

The State of New York is enjoined from enforcing her laws, if that's the recommended injunction, and so what I'm trying to figure out is whether you have made some argument... I didn't see it in your brief... whether you have made some argument below, or whether you have conceded the point that if you're wrong about sovereignty, and New Jersey is sovereign over the fill, then New Jersey law applies to the fill, not New York law.

Mr. Smirlock: --I believe the point is conceded, Your Honor, yes.

Unknown Speaker: It is--

Mr. Smirlock: New Jersey law applies, yes.

Unknown Speaker: --Thank you.

What about the provision in Article Fifth that the State of New York shall have the exclusive jurisdiction of and over the waters, docks, and improvements made and to be made on the shore of Staten Island?

Mr. Smirlock: Exact... it's the inverse of the Article Third provision I was talking about a moment ago.

Again, you had Staten Island, over which New York had jurisdiction, sovereignty--

Unknown Speaker: Right--

Mr. Smirlock: --and abutting Staten Island you had waters over which New Jersey--

Unknown Speaker: --Just like Ellis Island.

Mr. Smirlock: --Right, and that's... no, not just like Ellis Island.

New York had exclusive jurisdiction over those waters and the underwater land surrounding Ellis Island.

Unknown Speaker: But not the... not over the waters surrounding Staten Island?

Mr. Smirlock: No.

No.

If you look at the Compact, New Jersey was given exclusive jurisdiction over those waters, and--

Unknown Speaker: New York didn't even have the navigation jurisdiction?

Mr. Smirlock: --Not in that small territory, and that's why the compacting parties had to sort out--

Unknown Speaker: I see.

Mr. Smirlock: --who had authority over those improvements, so when you see that in the Compact you have to say either, they envisioned landfill on Staten Island in New Jersey but not on islands where it had already been put, which seems to us most improbable, or, they simply didn't feel they had to deal with it because there was no potential conflict between exclusive jurisdiction under Article Third or Fifth and New York sovereignty over the islands under Article Second.

If you think that New Jersey's right, you must think... you must think that the commissioners who made the Compact actually thought that when that 5 feet of landfill got added to the pier, that would be in New Jersey, that they agreed to Balkanize the islands, notwithstanding having given them without exception or qualification under Article Second to New York, and that is a very improbable conclusion.

Now, I will turn now to our argument that, notwithstanding the Compact, New York prevails in this case by virtue of the doctrine of prescription and acquiescence.

I'll recite some of the prescriptive acts in which New York engaged over Ellis Island.

Ellis Island was in United States New York congressional districts, in New York Assembly and Senate districts.

The United States in the New York censuses enumerated Ellis Island in New York.

Ellis Island residents, who lived only on the landfill portion of the island, voted in New York.

The INS, which occupied the island throughout the immigration period from 1890 to 1954, thought, without exception, that it was in New York.

Other Federal agencies doing business on or with Ellis Island, including on the fill, thought that it was in New York.

Congress, in its legislation and in its committee hearings, described it repeatedly as Ellis Island, New York, referring often to the fill.

The Federal courts of New York took jurisdiction over Ellis Island.

The Federal courts of New Jersey not only didn't take jurisdiction, they rejected it.

They refused it when it was proffered.

The New York Worker's Compensation law applied both before and after the Buck Act was passed.

New York City wage rates applied to labor on Ellis Island both before and after the Davis-Bacon Act.

The individuals who lived and worked on the island thought, as far as we have their evidence, that it was in New York.

When people were born on Ellis Island, in the hospitals that were on landfill, they were born in New York.

When they died in those hospitals, they died in New York.

When they married in... on Ellis Island, they married in New York.

None of those things can be said of New Jersey, and against those things the weight of New Jersey's counterexamples of nonacquiescence simply isn't sufficient.

Unknown Speaker: Well, how much opportunity did New Jersey have to object to some of these things?

I mean, to what extent did it make any difference?

Mr. Smirlock: They were... well, I think those are two different questions.

The acts were certainly public.

We're talking about things that were done by the Federal Government and by the New York legislature, so they knew about them.

To what extent did it make any difference in... I'm not quite sure what you're asking, Your Honor.

Unknown Speaker: Well, I mean, so someone is identified as having been born in a hospital on Ellis Island and born in New York, and this somehow comes to the attention of New Jersey, I mean, is... are... is New Jersey suppose to seek a correction of that record to show the person was born in New Jersey?

Mr. Smirlock: If they think they're sovereign over the land, but it's not... I'm not saying that they--

Unknown Speaker: This is a very... that's a very abstract difference with no consequences to the State.

I mean, it isn't as if New York and New Jersey were both seeking to tax, or something like that.

Mr. Smirlock: --Well, as a matter of fact, Ellis Island, erroneously for New Jersey, was on both tax rolls of the State, and in fact, although the tax records are so old that we don't have them, in fact, at least as of 1940, income tax earned by people who worked on the island would have been taxable by a State.

It wasn't a completely abstract matter, and it would have been a question as to which State was entitled to tax.

Unknown Speaker: Well, that I grant you, but it seems to me some of the examples that you give are things where it really wouldn't have made any difference in the operations of the State.

Mr. Smirlock: Well, some are obscure, but some are as... open and notorious, you might say.

Let's take--

Unknown Speaker: Are you saying that those acts put New Jersey on notice that it should have filed its suit earlier?

But if you say that, then is that just a laches argument in disguise?

Mr. Smirlock: --It's not a laches argument in disguise, it's--

Unknown Speaker: Or is it still prescription?

Mr. Smirlock: --No, it's not a laches argument in disguise.

I think that's the separate laches argument.

I'm not arguing at this moment that New Jersey should have... should have filed suit, though I will later on.

But no, all I'm arguing is that the acts of New York that I described, especially the legislative acts, and the censuses, certainly were public acts as to which New Jersey was on notice.

Unknown Speaker: But isn't it the overwhelming presence of the United States throughout the period that stops New Jersey... what is there to object to?

The governing power in fact is the United States, and the one thing that is clear in this Compact is that Congress reserved... the hydra-headed word, jurisdiction, the United States jurisdiction.

Mr. Smirlock: As to that, Your Honor, as this Court has often made clear, even when the United States has plenary jurisdiction, enclave jurisdiction over particular territory within a State, there's a good deal of residual jurisdiction that can be exercised by that State.

As the Court's pointed out, territory doesn't stop being part of a State just because the United States takes it under the Enclave Clause.

The municipal laws of a State, to use the term that this Court has used, laws designed to preserve the good order of society, remain in effect.

Federal law doesn't supplant them.

And then there are all the areas where, by statute, State law applies.

The Assimilative Crimes Act, the Davis-Bacon Act that I mentioned before, the Buck Act, in all those areas, State law would still apply, so there was plenty of play for New York jurisdiction, and our point is that to the extent there was State jurisdiction to be exercised, and there was plenty of room for it, it was always New York that exercised it.

Unknown Speaker: Well, the Davis-Bacon is mixed, isn't it?

There was some indication that New Jersey standards were used, too.

Mr. Smirlock: It depends upon what you mean by mixed, Your Honor.

Up until 1947, New York standards were used exclusively.

In 1947, as New Jersey's expert explained at trial, because the Federal Government wanted to save some money, and New Jersey rates were lower, there was a brief interregnum of about 2 years when New Jersey rates were applied, erroneously, because they were also applied on the main island, the original island as well.

And then in 1949, and this is a repeated pattern with New Jersey's supposed acts of nonacquiescence, the Federal Government recognized its error, just as it had many other times before, and said, oh, we made a mistake, back to New York rates, and they started applying them again.

It's hard to call that mixed.

Unknown Speaker: Well, I think all of that has less to do with who they thought owned it than with whether the rates are higher or lower and whether they're seeking union support or not.

Don't you really think that's what's driving all the Davis-Bacon stuff?

Mr. Smirlock: Possibly with the Davis-Bacon stuff it is, but with much of the... I recited already the examples of New York's prescription.

Unknown Speaker: How many people lived on Ellis Island?

Mr. Smirlock: Between 100 and 200 over the years.

There's one anomalous... at least while Ellis Island was a going concern as an immigration station, between 100 and 200, all of them on landfill, and they all voted in New... well, they may not all have voted, but they could all have voted in New York.

The examples of acquiescence, or nonacquiescence that New Jersey offers simply don't measure up.

There's the 1904 deed that I'll deal with first, because that's their Exhibit A, and what's fascinating about that deed is that at no point, even though in 1904 Ellis Island had 12 acres of landfill on it, at no point did the United States or New Jersey say, oh, and by the way, that 12 acres must be in New Jersey.

The negotiations between those two parties always dealt with the subaqueous land, and we think that supports our view of the Compact, which is, if it was underwater land, it was in New Jersey, but if it became abovewater land by virtue of fill, it was Ellis Island, and because under Article II of the Compact Ellis Island goes to New York--

Unknown Speaker: Well, that really wasn't a very good deal for New Jersey, certainly, if as soon as... if they owned the water... owned the land when it was under water, but as soon as it emerged from the water it went to New York.

Mr. Smirlock: --Well, it was valuable land, Your Honor.

They still had... for one thing, they still had the right of property in it.

For another thing--

Unknown Speaker: How much value is land that's under water?

Mr. Smirlock: --As... to wharf out on, extremely valuable.

That was one of the reasons... and this is all in the record... that the Federal Harbor Line Board took over the establishment of harbor lines in the bay was because the States were building out landfill from both sides, and they had to have some kind of plenary control over navigation.

That was very valuable land, Your Honor.

It was not a pittance.

Unknown Speaker: Mr. Smirlock, you know, I think it's a hard row to hoe to establish prescription.

It really is a very difficult thing.

I guess I'm more sympathetic to your arguments as simply indicative of what the Compact was understood to mean.

Just as in a normal contract interpretation one can look at the parties' subsequent behavior after the contract was signed, so also I'm sympathetic to the notion that we can look to New York and New Jersey's subsequent behavior as indication of what it meant.

Mr. Smirlock: Right.

Unknown Speaker: But to establish prescription--

Mr. Smirlock: Very well, Your Honor.

It's an easily convertible argument, and in fact in Massachusetts v. New York, among other cases, that's exactly what this Court did.

It looked as if it was analyzing the case in terms of prescription and acquiescence, and then at the last minute in its opinion it said, well, we think this shows what the Compact meant, and I agree with you, it does show what the Compact meant.

Unknown Speaker: --Are we supposed to go back... I mean, I notice the Special Master says that New York was unable to prove that the births, marriages and deaths she documented occurred on the island, let alone the landfilled portions, so is it your thought that we would go back and read all the evidence on that, and then we come to an opposite conclusion?

Mr. Smirlock: If you read even any of the evidence you'll come to an opposite conclusion, Your Honor.

I think that was the single biggest error that the Special Master made.

The evidence is all that those... the marriages, it's ambiguous.

The evidence as to births and deaths, they occurred, it is pretty clear, in the hospital, and the hospital was on island number 2, and island number 2 was fill.

He is simply mistaken, and I ask you in your--

Unknown Speaker: Well, you said, now, it's pretty clear.

Mr. Smirlock: --It is entirely clear.

Forgive me.

It was rhetoric.

It is entirely clear that that's where those births and deaths occurred because that's where the certificates say they occurred.

The death certificates say, Ellis Island Hospital, Marine Hospital, Ellis Island, and that hospital was on fill.

It's undisputed.

As I say, I believe that to be the single most patent error in the Special Master's report.

Now, I want to return in the moment I have left--

Unknown Speaker: Well, if one concludes that even if that's so, a few births and a few deaths don't make Ellis Island filled-in land, under the sovereignty of one State or the other, that's--

Mr. Smirlock: --If that were all we have, maybe not, but there is this pattern of everything that happened on Ellis Island that was subject to any State's jurisdiction or any sort of action by any State was always taken control of by New York.

If all we had were a few birth certificates, that would be problematic, but we have so much more, in addition to those birth certificates, and New Jersey, and this is an important point, has none of those things.

Unknown Speaker: --Don't they have Mayor Hague?

Didn't Mayor Hague at some point--

Mr. Smirlock: Ah, yes, the Mary Norton episode.

They have Mayor Hague coming in, and Mary Norton was his cat's paw, and--

Unknown Speaker: --Answer the question.

Mr. Smirlock: --And Mayor Hague came in and said, I don't know anything about a compact, but New... Ellis Island, New Jersey workers want Ellis Island, so give us jobs, and even then they couldn't get away with it, Your Honor.

The United States had to agree with the Second Circuit in Collins, and say that Article II awarded the entire island.

Chief Justice Rehnquist: Thank you, Mr. Smirlock.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Louisiana v. Mississippi - Oral Argument

Fri, 09 Jan 2009 14:49:46 +0000

Case:

Louisiana v. Mississippi

Media File:

121orig_19951003-argument.mp3

Related Transcript:

1995_121_orig_argument.xml

Transcript:

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.

Fine.

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.

No one--

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.

[Laughter]

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?

I'm not--

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.

It's--

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.

In fact--

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.

It goes--

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.

[Laughter]

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.

We had--

Unknown Speaker: On this point?

Mr. Keyser: --Yes, sir.

We had--

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's fastland.

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.

How long--

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.

Mr. McCartney.

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--

[Laughter]

Unknown Speaker: Didn't you row among--

[Laughter]

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.

[Laughter]

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--

[Laughter]

During normal--

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.

[Laughter]

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.

[Laughter]

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?

I mean--

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?

I mean--

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.

The river--

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.

The river--

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?

It's illogical.

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.

[Laughter]

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.

Attribution:

The OYEZ Project

Featured:

Illinois v. Kentucky - Oral Argument

Fri, 09 Jan 2009 14:49:38 +0000

Case:

Illinois v. Kentucky

Media File:

106orig_19910318-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Rickie L. Pearson

Chief Justice Rehnquist: We'll hear argument now in No. 106 Original, the State of Illinois v. the State of Kentucky.

Mr. Pearson.

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

In 1986 Illinois filed a complaint against the Commonwealth of Kentucky in this original action.

In the complaint Illinois alleged that Kentucky had directly infringed upon its sovereignty by exercising its boating and fishing laws north of the 1792 low-water mark on the northwestern side of the Ohio River.

Prior to this litigation the 1792 low-water mark with respect to Illinois had never been plotted, designated, or otherwise marked.

And prior to that action there had never been any boundary dispute between Illinois and Kentucky or any recurring litigation.

In the answer Kentucky denied that it had directly infringed upon Illinois' sovereignty.

Instead, Kentucky asserted that its boundary on the Ohio River is the low-water mark on the northwestern side of the river as it exists from time to time.

In other words, the current low-water mark.

Also in the answer Kentucky raised two affirmative defenses, one affirmative defense being that of acquiescence, the second affirmative defense being that of latches.

Kentucky raised the defense of acquiescence because it wanted to invoke and employ the basic teachings of Georgia v. South Carolina, and that is Kentucky wanted to maintain, and to this day wants to maintain, the status quo on the river.

Kentucky submits that the boundary between the two States, as it has been for 168 years, is the low-water mark on the northwestern side of the river.

By bringing the complaint, Illinois in essence seeks to change this boundary and make it the 1792 low-water mark.

Kentucky submits that there are many practical considerations with respect to utilizing the low-water mark on the north side of the river as the boundary between the two States.

Unknown Speaker: Now, when you say low-water mark you have to tell us low-water mark at what time.

Mr. Pearson: As it exists from time to time, or currently.

Unknown Speaker: The changing low-water mark, not the 1792 low-water mark.

Mr. Pearson: That's correct.

Not the 1792 low-water mark, but the prevailing, current low-water mark.

Unknown Speaker: Mr. Pearson, are you asking us to overrule Ohio v. Kentucky?

I mean, you do not accept that Ohio v. Kentucky sets forth the proper rule, even without all the acquiescence?

You--

Mr. Pearson: Your Honor, we're not asking this Court to overrule Ohio v. Kentucky.

We think that the case before this Court can be determined independently of that particular situation.

Unknown Speaker: --And must be for you to win.

Mr. Pearson: That's affirmative.

That's correct.

If you look at Ohio v.--

Unknown Speaker: Would you object if we were to overrule that area case?

Mr. Pearson: --No, sir.

We would not object if you were to overrule that case.

Unknown Speaker: Well, there was a dissent in that case, wasn't there?

Mr. Pearson: There was a dissent in that case.

And might I add, it appeared to favor Kentucky with respect to its argument here today.

But there are some historical antecedents and factors that go into why Kentucky has recognized the ever-changing low-water mark on the Ohio River for 168 years.

It all starts back in 1818 when you look at the Illinois Enabling Act, the 1818 constitution of Illinois, the 1848 constitution of Illinois, and the 1870 constitution of Illinois.

All these documents, when viewed, conclude that the boundary between Illinois and Kentucky is the low-water mark, as those documents put it, along the northwestern shore, meaning the bank.

Perhaps maybe the most important notification that Kentucky had with respect to the low-water mark on the northwestern side of the river came from an 1849 report of the Illinois Joint Select Committee to investigate Illinois' boundary on the Ohio River.

That legislative body concluded that the boundary between Illinois and Kentucky is the low-water mark on the northwestern side of the river.

Kentucky submits that the conclusion of the Joint Select Committee from Illinois is in keeping with the 1820 case of Handly's Lessee v. Anthony.

In the Anthony case the court was called upon for the first time to construe the 1784 Virginia Deed of Cession which gave lands to the United States of America, and thereby created Kentucky, Illinois, Indiana, and Ohio.

In construing the 1784 cession, the court in Anthony's Lessee concluded that the boundary for Kentucky on the Ohio River is the low-water mark on the northern side of the river, or to put it in another term used by the court, the water's edge.

But there were many factors why the court reached this conclusion, one of them being that it would be convenient for future population, because at that time the United States was growing.

Secondly, it was an identifiable boundary mark between the States.

With that in mind, Kentucky submits that by using the low-water mark on the northwestern side of the river as it exists from time to time, or currently, or as it prevails, is the most practical approach to resolving the boundary dispute.

After all--

Unknown Speaker: Mr. Pearson, if you're not asking the Court to overrule Ohio against Kentucky, then your argument has to be based on acquiescence, does it not?

Mr. Pearson: --It does, Your Honor.

Unknown Speaker: And how much of a part does the practicalities of the thing play in acquiescence?

I mean, don't you have to show that Illinois consented to this boundary, basically?

Mr. Pearson: You do.

You have to show that they acquiesced in this particular boundary.

You sure do.

Unknown Speaker: And if they acquiesced, what difference does it make whether it's a practical boundary?

And if they didn't acquiesce, what difference does it make whether it's a practical boundary?

Mr. Pearson: Your Honor, I think it's... it's very important that it's a practical boundary for the simple fact that it would best serve the public convenience.

Unknown Speaker: But what has that got to do with acquiescence?

Acquiescence is a state of mind exhibiting your willingness to abide by a particular thing.

Mr. Pearson: Yes, Your Honor.

I think if you look back at Vermont v. New Hampshire, which was decided in 1933, the court in Vermont v. New Hampshire looked at the practical considerations for the public convenience.

They looked to see, first of all--

Unknown Speaker: Did that... did that case turn on acquiescence?

Mr. Pearson: --Yes, it did, Your Honor.

And it had to do with the location of the boundary between Vermont and New Hampshire on the western... the western low-water mark on the Vermont side of the Connecticut River.

It turned on acquiescence.

The court there looked at the conduct of the inhabitants and the issue of acquiescence.

And acquiescence, with respect to whether or not to use the largely identifiable western low-water mark on the Vermont side of the Connecticut River, looked at the practicalities of it.

Kentucky would submit that looking at the practicalities in this situation, likewise, is very important.

I think if we look at some of the practicalities and how they have impacted upon the interaction between officials from both Kentucky and Illinois, then I think we can bring home closer the doctrine of acquiescence.

Unknown Speaker: Well, at least it makes it more sensible to argue acquiescence if it's... if acquiescing was in the public interest or if it was practical to do so.

Mr. Pearson: I would agree, Your Honor.

That's precisely our point.

For instance, if we look at the bridges that cross the Ohio River between Illinois and Kentucky, there are four of them.

Basically a bridge that was constructed in 1929, the Brookport bridge, 1938 the Cairo bridge, which, that's what they call it in Illinois, they don't call it Cairo, the 1956 Shinytown bridge, and the 1974 Interstate 24 bridge.

With respect to the Interstate 24 bridge, in 1971 a construction agreement was entered between Illinois and Kentucky, and with respect to that agreement it was concluded that the boundary between the two States would be the north normal pool line, loosely translated the low-water mark.

It did not say, it did not specify 1792.

Kentucky submits that it's talking about the prevailing or current normal pool line on the river.

Likewise, we see the same kind of situation with respect to Illinois and Kentucky entering into a maintenance agreement regarding the Cairo bridge, which was constructed in 1938.

In 1954 Kentucky and Illinois officials corresponded regarding where to place the sign on the bridge indicating when you are going to be entering Illinois or leaving Kentucky.

And between this correspondence one of the district engineers for Illinois concluded, after looking at the 1936 construction plan, that the area located on that construction plan was about as close enough to the theoretical line as it could be.

Kentucky had that 1936 plan analyzed by one of its bridge engineers and of course that plan indicated that the boundary was at Pier B, Station 20 plus 10.

Notwithstanding the fact that that's construction talk, the bottom line is when you look at it it's the same as the low-water mark on the northern side of the river.

Consequently Illinois has been on notice for quite some time, especially with respect to the 1849 agreement, a Joint Select Committee conclusion that the low-water mark on the northwestern side of the river is indeed the boundary.

Likewise there was other situations which have come into play to show that Kentucky is exercising its jurisdiction and its dominion to the north low-water mark on the Ohio River.

For instance, Kentucky counties that bound... that border on the river have the right in the authority under Kentucky's 1810 statute, and the case law that has interpreted it, to lease the river bed to the thread or the middle of the stream.

As a result of that subsequent decisions by the Supreme Court of Kentucky, or the highest court in Kentucky at that time, concluded that the State of Kentucky likewise has the authority to lease the bed of the river from the middle of the stream to the low-water mark on the northwestern side of the river.

And that's exactly what Kentucky has done.

Before the Special Master there is evidence that Kentucky has entered into agreements with private companies for the leasing of the river bed for dredging of sand and gravel.

Unknown Speaker: Mr. Pearson, I guess Kentucky has boundaries along the Ohio River with Ohio and--

Mr. Pearson: Indiana.

Unknown Speaker: --Indiana as well.

Mr. Pearson: That's correct.

Unknown Speaker: And so I assume if somehow we were to agree with you that there has been acquiescence here for the Illinois boundary, that would mean the boundary is someplace else with respect to Indiana and Ohio?

Mr. Pearson: That's correct.

In other words, if I understand your question, it would create an inconsistent boundary.

Unknown Speaker: Yes, quite.

Mr. Pearson: With respect to that conclusion... which it would.

It would create an inconsistent boundary.

But there are some factors to be concerned.

Maybe perhaps the bright-line principle that would allow Kentucky to fashion the boundary as it argues today, which has been recognized for 168 years, is California v. Nevada.

I think the bright-line principle in that case is that there is no particular relationship between the origins of a boundary and the legal consequences of acquiescence in that boundary.

In other words, for 168 years it has been no problem between Illinois and Kentucky.

Even as I speak today, the boundary on the river which the parties or the people who work on that river recognize, is the low-water mark.

We haven't had any problems with it for 168 years, even though it has been different than the 1792 low-water mark.

I think the... at present the Kentucky legislature, with respect to promulgating in its revised statutes the description of the boundary now, talks in terms of allowing the low-water mark on the north side of the river to intersect with the present 1792 low-water mark as we know it from Ohio v. Kentucky, and of course Kentucky v. Indiana.

Merely, the point being is that there has been no problem up until this lawsuit was filed regarding the boundary between the two States.

At present Kentucky enforces its boating and fishing laws on the entire river to the northwestern side of the river at the low-water mark.

For instance, with respect to fishing licenses, the testimony before the Special Master showed that if an individual is fishing in the Ohio River, then Kentucky officials will check that person for his or her license.

But if that person is fishing from the bank the Kentucky officials will not.

Moreover the officials from Kentucky testified that there are no Illinois water patrol or Fish and Wildlife personnel on the river.

Only Kentucky is the State that patrols that river and enforces the fishing and boating laws on that river.

Unknown Speaker: Mr. Pearson, isn't it possible that the boundary is actually on the land north of where the water is, under Illinois' theory?

Mr. Pearson: No, Your Honor.

Unknown Speaker: I mean, maybe... isn't it possible the river has moved to the south rather than to the north?

Mr. Pearson: I think, Your Honor, I think you're speaking with respect to a survey that was done by Illinois with respect to that.

We don't... we cannot concede that that is possible or that is the case.

We don't... we don't know the impact with respect to what dams have done to the river and perhaps that issue might be premature and be appropriate if this Court concludes that Kentucky does not prevail.

Unknown Speaker: No, my point is that all this activity rely on... say Illinois allowed all the policing and what went on on the water itself.

Maybe they assumed that was part of Kentucky because they don't really know exactly where the 1792 boundary is.

Mr. Pearson: That may well be true, Your Honor, but in the complaint they allege that it was the 1792 low-water mark.

I have to take them--

Unknown Speaker: Right, but I'm just saying if you don't know where it is, conceivably... I don't know, I don't know anything about the geography.

But conceivably the 1792, the river was 10 miles north of Cairo.

Mr. Pearson: --It could have been.

And I think you're talking about basically the principles of accretion and erosion.

Unknown Speaker: Yeah.

Mr. Pearson: Kentucky submits, just as it has with respect to Illinois recognizing the low-water mark on the northwestern side of the river, because it has waited 168 years in which to bring this action, that it has in essence acquiesced likewise to the application of the principles of accretion and erosion.

In other--

Unknown Speaker: If I didn't know where the 1792 low-water mark was, I guess I would just operate on the assumption that it was where it is now, and therefore my operating on that assumption would not demonstrate any acquiescence whatever.

It would demonstrate only a mistake of fact, perhaps.

I mean, you have to demonstrate an acquiescence in the legal principle, right, not just in a fact, but in the legal principle.

Mr. Pearson: --And I think we have with respect to inaction for a long period of time.

Unknown Speaker: Well, how does--

Mr. Pearson: That's one of the considerations.

Unknown Speaker: --How would it hurt Kentucky?

You just don't know how it would hurt you, Kentucky, if Illinois won?

Mr. Pearson: I think it could hurt us in many regards.

Unknown Speaker: Okay, but you don't know how?

Mr. Pearson: I think I do.

If Illinois were to prevail, is that your question?

Unknown Speaker: Yeah.

Mr. Pearson: I think I would.

First of all--

Unknown Speaker: Tell us.

Mr. Pearson: --First of all it would be with respect to the issuance and the selling of fishing licenses.

Number one, which--

Unknown Speaker: Well, how do you know?

Mr. Pearson: --Well, if the boundary... let's predicate on the assumption.

If the boundary is the 1792 low-water mark as Illinois alleges in its brief, which means that the boundary is no longer the shoreline but moves out into the waterway, then obviously because of the geographical location of that boundary which Illinois says is the boundary between the two States, we're going to give up some of the river.

And consequently fishing--

Unknown Speaker: For purposes of fishing jurisdiction?

Mr. Pearson: --Fishing jurisdiction.

Maybe for that fact dredging with respect to sand and gravel, if they want to dredge along the northern... northwestern shore.

Unknown Speaker: But you don't know, though, you just don't know.

You just have to surmise that--

Mr. Pearson: That would appear to be, based upon the historical facts on the river that that's a high probability.

So, yeah.

I don't know, but--

Unknown Speaker: --Of course there might be a high probability that the boundary, that the river has moved south, in which event you wouldn't lose anything in the river.

Mr. Pearson: --That's true.

Of course there's a probability that it could have moved north.

And if it has then we probably lose a lot more.

But the movement of the river, I think at this point in time with respect to trying to say that it's the 1792 low-water mark or that it's the low-water mark on the northwestern side of the river, perhaps is a little premature and would definitely be a vast and important consideration when trying to geodetically plot where we think it is if Kentucky does not prevail.

I think that's where it has its most important function.

Unknown Speaker: But isn't it correct that we... the record does not yet tell us which direction, if either, the river has moved?

Mr. Pearson: That is correct.

Unknown Speaker: So isn't... it seems to me it's a 5050 proposition.

They want a certain line, but you don't know whether that... it doesn't seem to me you can really tell whether that line will hurt one State or the other.

Mr. Pearson: Well, if... that's, that's true, but I think that there is a certain line, and that's the line that Kentucky and both Illinois have recognized for 168 years.

Unknown Speaker: Well, but you're saying the certain line is a line that changes from time to time, and wherever it is at a particular time, that governs.

Mr. Pearson: That's correct.

Unknown Speaker: And they are arguing for a permanent line.

And we don't know whether the permanent line is more favorable to one State or the other.

Mr. Pearson: Surely we know if it does move more northward--

Unknown Speaker: Well, if it moves north it's more favorable to your side, if it moves south it's more favorable to the other side.

But--

Mr. Pearson: --That's correct.

Unknown Speaker: --Has the boundary line been established, to your knowledge, between Ohio and Kentucky?

Mr. Pearson: It has, Your Honor.

Unknown Speaker: And how did that work out?

Mr. Pearson: That worked out as the result of a stipulation--

Unknown Speaker: And the river was moved south some places and north in other places, is that it?

Mr. Pearson: --That's correct, Your Honor.

I think what we have--

Unknown Speaker: And the same with Indiana?

Mr. Pearson: --Same with Indiana, Your Honor.

I think--

Unknown Speaker: It may be the same in your place.

Mr. Pearson: --I think what we have right now--

Unknown Speaker: You may gain something.

You may gain some ground.

Mr. Pearson: --Well, the way the parties--

Unknown Speaker: Actual ground.

Mr. Pearson: --The way the parties stipulated was that when it gets too close to ground they move it 100 feet out.

That's not to Kentucky's benefit.

Right now the boundary with respect to Ohio and Kentucky, as it has been agreed between the parties, takes a zig-zagging course.

No one knows exactly still where it is.

And when it gets too close to land the parties by agreement stipulated that it would move out 100 feet.

Unknown Speaker: I know, but that--

Mr. Pearson: We didn't pick up--

Unknown Speaker: --That doesn't follow the 18... the--

Mr. Pearson: --Handly's Lessee in 1820?

Unknown Speaker: --Yeah.

That doesn't--

Mr. Pearson: It does not, Your Honor.

Unknown Speaker: --Because if you... I would think that if the river moved a certain direction and the boundary line is that old low-water mark, it would be up on the land and you would be having some land.

Mr. Pearson: I think perhaps the boundary as we know it based upon the 7... the 1792 low-water mark with respect to Ohio and Kentucky has resulted purely from stipulation and agreement between the States.

And so they tried to do as best they could with what they could find, even with regard to speculation by knowledgeable surveyors as to where they think the boundary is.

Kentucky didn't pick up anything as a result of that.

Unknown Speaker: Mr. Pearson, if we don't know where the 1792... I mean, it's not in the record.

You don't know.

We don't know.

I suppose the fellow who put up the sign on the bridges didn't know either.

Any of these acts of acquiescence that you're alleging, does any of them involve a situation where somebody knows where the 1792 line was, but nonetheless allows... allows jurisdiction beyond it?

Mr. Pearson: No, Your Honor.

Unknown Speaker: Not a single one?

Mr. Pearson: It does not.

Unknown Speaker: So as far as appears, it has just been the operating assumption of Illinois that the boundary... the boundary is... was where it is--

Mr. Pearson: No, Your Honor--

Unknown Speaker: --which is a fair enough operating assumption.

It may have gone in either way.

Mr. Pearson: --I don't think it's been an operating assumption, Your Honor, especially if you look at the 1849 Illinois Joint Select Committee and what they did.

That was their job to make a determination where the boundary is.

They concluded it's the low-water mark on the northwestern side of the river.

They had an ample opportunity at that time to say, oh, it's the 1792 low-water mark.

They did not find such.

Consequently, I think Kentucky has correctly utilized the low-water mark and Illinois has acquiesced to it being the 17... not... being the low-water mark on the northwestern side of the river.

That's true, locating it would probably be extremely difficult.

The parties in the two prior actions stipulated where they thought maybe it would be.

With respect to the... Illinois' complaint I think also points it out.

Illinois in its complaint alleges that Kentucky directly infringed upon its sovereignty by exercising its jurisdiction or dominion to the shoreline.

Once again, I think that is indicative of the fact that it has always been that.

It's identifiable.

It's concrete.

There is no guessing for people who work and live on that river everyday.

There is nothing about maybe geodetically plotted the river runs, the boundary runs this way or meanders that way.

It's identifiable.

When a person is on the riverbank fishing or a person puts that pole in the water, they know where it is.

To give you another example as to how Kentucky has exercised dominion and control over the river, from 1946 to 1988 Kentucky had a special license called the Ohio River Commercial and Sport Fishing license.

This license was purchased exclusively and available only for residents of Illinois, Ohio, and Indiana.

We sold it exclusively to them so they could fish the Ohio River.

In 1988 the regulations were amended such that Kentucky would then have a new license called a nonresident fishing license, meaning that Illinois residents could purchase the license, just like any other resident of a... from a State other than Kentucky.

And, but in either case Kentucky was selling those licenses particularly to Illinois official... Illinois individuals or inhabitants so they could fish on the river.

This once again shows you what has been going on for quite some time on the river in terms of exercising jurisdiction over the river to the low-water mark.

To show you one other example, Kentucky's fishing laws allows that it be--

Unknown Speaker: Well, even in that... even on that example, if any portion of the river in which they intended to fish was south of the boundary, they'd need a Kentucky license.

Wouldn't they?

Mr. Pearson: --If it's south of the low-water mark.

Unknown Speaker: Right.

Mr. Pearson: That's correct.

That's correct.

Unknown Speaker: So I would think most fish... I don't know where the, where you get the most fish out of this river, but I would think--

Mr. Pearson: I don't either.

Unknown Speaker: --most people would need a Kentucky license, no matter... unless the boundary had moved, you know, the whole breadth of the river.

Another question occurs to me--

--And especially since they don't know where the boundary is any more than you do.

[Laughter]

They know there are a lot of Kentucky game wardens out there and they want to--

Mr. Pearson: Of course if they fish north of the low-water mark, one would have to assume they would have to get an Illinois license, but right now we're selling those licenses with respect to having accessibility to the Ohio River.

And--

Unknown Speaker: --What would happen under your view of the case if Kentucky decided to fill out to the middle of the river and cause the river to bend farther to the north?

Would they acquire territory by doing that?

Mr. Pearson: --I think we have to first classify what that conduct would be by Kentucky as to whether or not it's some kind of accretion or whether or not it's evulsive in nature.

Because if it's evulsive in nature, and is sudden, which usually is in terms of an earthquake, then of course because the river would shift, the shift of the river would not divest the States that had certain properties--

Unknown Speaker: So your view isn't that the proper line is as it exists from time to time.

It's as it exists from time to time, excluding all examples of evulsion.

That's your theory?

Mr. Pearson: --That is.

Unknown Speaker: So you... even under your theory you've got to go back 100 years and find out how many evulsive changes took place, don't you?

Mr. Pearson: Well, we have... we have an affidavit indicating from our surveyor that the river has not changed very much at all.

Unknown Speaker: Very much.

But if there are any evulsive changes, in order to find the boundary you would have to know what they were.

Mr. Pearson: Of course finding some of that evidence is one of the problems we have because of the inaction on the part of Illinois in bringing suit 168 years later.

It has a deleterious effect upon the quality of evidence presented.

I think that's another practical consideration with respect to whether or not acquiescence has been shown.

Finally, I think I'd like to conclude by indicating that when a person drowns in the Ohio River, if that body is located in the river the Kentucky coroners will exercise jurisdiction over it.

However, Illinois coroners will not.

If the body is brought to the bank on the Illinois side they will exercise jurisdiction over it.

Sometimes the Illinois coroners will seek the permission of the Kentucky coroners to exercise jurisdiction over a body.

Unknown Speaker: What else would you expect them to do?

I mean, if it... if the 1792 boundary were the line, how would you expect them to behave differently?

It would seem to me if I were a coroner I would say, yeah, I know it's the 1792 line, but nobody knows where the 1792 line is, even Mr. Pearson.

He's been working with this case for a long time.

He doesn't know... I'll just assume that it is now where it was then.

Isn't that the way you'd operate?

I would.

Mr. Pearson: Well, I think, Your Honor, the answer to that question is the practical choice of all, the low-water mark on the northwestern side.

Then you don't have to guess at all.

Just like with... in... with the Connecticut River.

There would be no guessing.

There would have to be no assumptions.

With that in mind, Your Honor, if there are any more questions--

Thank you.

Unknown Speaker: Thank you, Mr. Pearson.

Mr. Brunsman, we'll hear now from you.

Argument of John Brunsman

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

I'd like to begin this afternoon by talking a little bit about the 1792 low-water line, whether anyone knows where it is or not.

I think that the record does show that Indiana, Ohio, and Kentucky all resolved their boundary dispute following this Court's 1980 decision by using a line depicted on a series of U.S. geological Survey maps showing the 1792 low-water mark, and that line was based on surveys done by the Corps of Engineers about the time of 1896 to 1906.

They did those surveys before they built the dams on the river that have raised the level of the river that have really caused the problem that we have here today, and the parties agreed that was the best existing representation of the 1792 line.

Unknown Speaker: How did the 1896 surveys deduce the 1792 low-water line?

Mr. Brunsman: It's obviously, Your Honor, it's not exactly.

They just... the parties determined that's the best approximation they could ever come up with.

Unknown Speaker: Well, so what you're saying is that the 1896 survey didn't purport to show the 1792 low-water mark; it showed the 1896 low-water mark?

Mr. Brunsman: It showed... it used an average of gauge readings on various parts of the river going back a number of years before that, up to 50 years before that.

What it did was get a mean low-water mark over a period of years, and--

Unknown Speaker: 50 years preceding 1896?

Mr. Brunsman: --Exactly.

And the 22 U.S. Geological Survey maps showing the Illinois-Kentucky section of the boundary are part of the record in this case.

They are filing No. 44.

Like the maps between Kentucky and Indiana and Ohio, they all show the boundary as the low-water mark some distance south of the contemporary northern shoreline.

It varies anywhere from 100 feet to some places past the middle of the river.

There are three exceptions to that.

There are three places where there were former islands in the river that have now become attached to Illinois.

Illinois concedes those are part of Kentucky because they were islands originally, so that 1792 low-water mark would have been north of them.

I submit that these maps have been in existence, many of them have been in existence since the 1950's, that Kentucky had some notice, some idea of where the 1792 low-water mark was, just as Illinois was put on notice by those maps.

Unknown Speaker: If you use a changing low-water mark as the boundary, what's the law if a dam is built or the low-water mark is changed by an act of one of the States?

Mr. Brunsman: I believe that there are cases that indicate that you can have in effect an evulsive change created by manmade intervention.

In fact Illinois resolved a dispute informally with the State of Missouri using just that principle.

The Corps of Engineers had built a dam there--

Unknown Speaker: Well, what about the low-water mark?

Suppose the low-water mark is always much higher after a dam?

If the normal rule applies, is there now a new low-water mark, even though it's manmade?

Mr. Brunsman: --Assuming that we had a case other than Ohio v. Kentucky?

Unknown Speaker: Yes.

Mr. Brunsman: I would assume that would be a new low-water mark, because that's... a low-water mark would be the point the river recedes in its lowest stage under existing circumstances.

That would be one definition.

Unknown Speaker: Well, if you knew where the 1792... I'm sorry, you did know where it was.

You should have been more careful about where you put your bridge signs and things of that sort.

Mr. Brunsman: Well, Your Honor, I don't think that a bridge sign is the sort of thing that you use to deprive a State of what would otherwise be its legal jurisdiction.

I think the letter that Mr. Pearson talked about, the author said well, this is close enough to the theoretical State line for our purposes.

He was putting up a sign that said you're leaving Kentucky and entering Illinois.

I am sure he would have been quite surprised to consider that he might be determining a State boundary for all time by writing that letter.

I don't think that's the sort of situation or the sort of fact you would rely on in establishing acquiescence.

And in discussing the facts in this record I'd like to turn at this point to the various Kentucky authorities since 1890 that have recognized the 1792 low-water mark to be Kentucky's boundary.

In fact, starting in 1890 that was Kentucky's position when it came to this Court and argued the Indiana v. Kentucky case.

In that case Indiana suggested that it was the contemporary low-water mark.

This Court disagreed, siding with Kentucky, and said the decisive question is really the line as it existed in 1792, and that it was fixed at that point and wouldn't change thereafter.

So beginning as early as 100 years ago Kentucky authorities themselves have acknowledged the 1792 line.

Following that decision there have been a number of Kentucky authorities, the earliest is a 1916 Kentucky case where the question was whether or not a small island in the river was within the northern boundary of Kentucky.

That Kentucky court cited Indiana v. Kentucky and said the boundary is defined as the low-water mark as it existed when Kentucky became a State.

And that case, I would submit, is of significance to the present controversy since the island was located in the river near Mound City, Illinois.

So in that Perks v. McCraken decision we have explicit recognition by Kentucky that the 1792 line applies to that part of the river between Illinois and Kentucky.

Subsequent--

Unknown Speaker: Mr. Brunsman, did something occur that prompted Illinois to file the suit that it did after all these years?

Mr. Brunsman: --I think it was the resolution... the resolution of the earlier cases in 1980, and then I believe the actual maps weren't completed showing a line until 1985.

I think that's fair to say was the--

Unknown Speaker: xxx your statement probably benefit the results of those other cases when they finally drew the line?

Mr. Brunsman: --Well, the line that's on the U.S.G.S. map shows that some part of the river for the most part is in Illinois.

So to that extent we would benefit.

I think at the time we filed the suit, I'm not even sure... I wasn't aware of those maps.

I'm not certain if anyone... if we were, but they... just the certainty of knowing where it is was the benefit we sought to obtain by filing a lawsuit at that time, knowing that the court had just resolved it with regard to the other three States on the river, and that it seemed like the opportune time to do so as far as Illinois was concerned.

Unknown Speaker: Wouldn't there be some chance that if the boundaries, the low-water mark as it was back in 1792, that the river has changed so that that low-water mark of 1792 would be on dry land on the Illinois side?

Mr. Brunsman: I think that's... it's conceivable, and in fact that is the situation--

Unknown Speaker: Well, I would think it would be just as conceivable as if the river moved the other way.

Mr. Brunsman: --Well, but I think that... this is based on a premise that misconstrues the change in the river.

The river hasn't moved.

The dams have raised the level of the river so in effect it has spread out both ways.

It's deeper behind the dams than it was naturally.

That's why the original pre-dam--

Unknown Speaker: You don't think then, you don't think the Ohio is as much of a meandering river as the Mississippi, for example?

It goes downhill faster, so it doesn't--

Mr. Brunsman: --I think that is exactly what I have read, that that's the case.

Also, the Corps of Engineers, the Government has spent many millions of dollars putting these dams and docks there.

They are not likely to let it gradually move around those dams and docks so that--

Unknown Speaker: --But if it's deeper above the dams, one would think it would be shallower below the dams, because the same amount of rainfall is falling on that watershed as fell in 1792.

Mr. Brunsman: --If you look at the level of the dams, and in one of the filings, I think it's filing No. 41 in Exhibit 3 or 4, some Corps of Engineers documents, they show the level of the pool behind each dam.

And it's above the existing low-water mark because each dam was built to guarantee a minimum 9-foot navigation pass.

And to do that--

Unknown Speaker: Then where is the additional water coming from?

I mean, if it's wider on both sides in some places, it seems logical it must be narrower on both sides in other places.

Mr. Brunsman: --Well, I... to tell you the truth, I can't answer that.

I do know that when you look at the line based on the pre-map, or the pre-dam survey of the Corps of Engineers, you'll see that all along the shoreline of not just Illinois, but Indiana and Ohio, that pre-dam low-water mark is for the most part south of the shore.

Another source that... another Kentucky source recognizing the 1792 line was the 1963 attorney general's opinion where the Kentucky Attorney General not only recognized the existence, or the accuracy of the 1792 low-water mark as Kentucky's boundary, he also recognized that because of the dams it would be south of the contemporary northern shoreline due to the general raising of the river.

The final two Kentucky sources that contain statements incompatible with Kentucky's position here are their two bulletins issued in 1969 and 1972 by the Special Ohio River Boundary Subcommittee of the Kentucky Legislative Research Commission.

The introduction or forward to the first of those bulletins, Bulletin 81, tells us that this special subcommittee was created specifically to study Kentucky's Ohio River boundary due to litigation during the preceding 150 years.

I think it's significant to note that despite Kentucky's claim here that it has always asserted its boundary to be the low-water mark as exists from time to time, that claim was somehow lost on the authors of this... these bulletins, since neither one of those bulletins advanced such a claim on Kentucky's behalf, and both of them recognize the 1792 low-water mark.

So, based on those sources running from 1890 through 1972, and those two reports were even issued while Ohio v. Kentucky was pending in this Court, it shows to me first that Kentucky has repeatedly recognized the 1792 line.

Also that... oh, that's true, there was also confusion within Kentucky, because the legislative research commission was saying it's the 1792 line, Kentucky in their answer to Ohio's original complaint said no, it isn't.

And again, that kind of uncertainty and confusion, I think, fits Illinois' position in this case because you don't have acquiescence where the State claiming the benefit of it can't show a longstanding continuous claim to the boundary they are seeking to have the Court adopt.

There is additional evidence in the record, I think, also that shows that this uncertainty extends to both States.

The best evidence of that concerns the taxation of the permanent structures.

There are a number of structures built on the Illinois shore that extend into the river, barge loading facilities, coal loading facilities, that sort of thing.

Illinois identified 15 of these structures, and admittedly we could produce evidence that we were definitely taxing only one of them.

That was part of a grain-loading facility that is located in Alexander County, Illinois.

Kentucky of course argued this shows that they have exercised exclusive jurisdiction over the river, Illinois hasn't.

But in fact the record also shows that Kentucky, too, has only taxed one of these 15 structures.

So really what you have, 13 out of 15 structures aren't being taxed by either State.

Kentucky did try to tax a second one--

Unknown Speaker: I bet they're paying taxes now.

[Laughter]

Mr. Brunsman: --They're waiting, holding their breath.

Kentucky did try to tax a second structure, but the taxpayer there protested on the grounds that they felt that the whole thing was in Illinois and not in Kentucky.

And taxation I think is one of the factors the Court has traditionally looked at in these acquiescence cases, and here I think it supports a conclusion that the record shows uncertainty in both States, and that's incompatible with a finding of acquiescence.

Another example--

Unknown Speaker: What is the... is the water above these dams heavily used for recreation?

Mr. Brunsman: --I don't believe it is, Your Honor.

I have been down there... all I can say is on my personal visits there is not.

It is mainly used for commercial--

Unknown Speaker: No, not a lot of boating or anything?

Mr. Brunsman: --Not a lot of boating.

I only know of one--

Unknown Speaker: But fishing?

But fishing?

Mr. Brunsman: --There is some fishing.

There is some commercial fishing.

But the few times I have been down there there is not a great deal of pleasure boating on the river.

Unknown Speaker: What do they get?

Catfish?

Mr. Brunsman: I have no idea, Your Honor.

[Laughter]

Another incident that Mr. Pearson talked about was the... had to do with the coroners.

And he mentioned the situation where the Illinois coroner always asks permission before he takes charge of a drowning victim in the river.

While it happens to be the coroner in Hardin County, Illinois, it is certainly true that he has always done so.

But it's also true that the Kentucky coroner has always given his permission, even in the most recent incident where the victim was still in the river when the Kentucky coroner arrived on the scene.

And I would submit again this reflects uncertainty in both States, since Kentucky doesn't suggest how one of its coroners could legally delegate authority over a death occurring in the Commonwealth to an Illinois official.

Plainly it's just neither of them knows what to do exactly, so they work this out between themselves.

There is a similar arrangement that was in existence for a long time between the Gallatin County, Illinois coroners and their counterpart.

The Illinois coroner handled the victims if he was a resident of Illinois.

The Kentucky coroner handled the rest.

So again, I think these sorts of situations fall far short of what normally takes and what this Court has found in the past it takes to establish a new boundary by means of acquiescence or prescription.

Finally, I'd like to discuss briefly the various instances where Illinois has exercised jurisdiction over part of the river.

One example of this are the, some 78 permits Illinois' Department of Transportation has issued over the last 69 years governing a variety of structures built from the Illinois shore south into the river.

And these permits were issued pursuant to a statute that requires such a permit for anyone who wishes to do any construction within the public bodies of water of Illinois.

And I would submit that the actions of the Department of Transportation is clear assertion that it believed some part of the waters of the Ohio were within Illinois, or it wouldn't have been issuing these permits for the last 69 years.

Kentucky of course says that Illinois has never exercised any jurisdiction on the water, and this I think proves that that--

Unknown Speaker: Do you think we ought to give some deference to what the Master found?

Mr. Brunsman: --Yes, Your Honor, I certainly agree.

Unknown Speaker: Well, I suppose you would.

But do you find any evidence in the... in our original case opinions that if it's a tie the vote goes to the Special Master?

Mr. Brunsman: Your Honor, I think the Court has said that although the Special Master's findings are entitled to respect and a tacit presumption of correctness, the Court nonetheless has to make an independent review of each record in an original action, since it's really this Court and not the Special Master who is--

Unknown Speaker: That's quite inconsistent, isn't it, to say that there's a presumption but we do it independently?

Mr. Brunsman: --Well, Your Honor, I can only repeat what I have read in the cases.

Unknown Speaker: I've got you.

[Laughter]

Well, what do you think?

Mr. Brunsman: I'd like you to rely heavily on the tacit presumption of correctness and--

[Laughter]

Another example of Illinois' assertion of jurisdiction over the river has to do with the 1927 decision of the Illinois Supreme Court in the Joyce-Watkins case.

That case involved an accident that occurred on a railroad incline, and it occurred some 8 to 10 feet south of the existing Illinois shoreline.

The employer there argued that since it took place south of the shoreline it didn't take place within the State of Illinois, and the Illinois Industrial Commission has no jurisdiction.

The Illinois Supreme Court rejected that argument.

It cited Indiana v. Kentucky for the proposition that the boundary was the low-water mark on the northwest side of the river.

But then it also observed that no commission between the States had ever actually plotted that line, and that the dispute before it really wasn't the proper vehicle for resolving an interstate boundary dispute.

What it did, it was however able to resolve the controversy because it concluded that the low-water mark referred to in Indiana v. Kentucky was the record low-water mark at any given point along the river.

In other words, each time the river got lower the boundary moved further south.

I would submit that that--

Unknown Speaker: As opposed to a mean low-water mark.

Mr. Brunsman: --Exactly.

And under the way it applied that rule in this case it's clear that it didn't contemplate the boundary ever moving back.

It would just, each new--

Unknown Speaker: Ratchet.

Mr. Brunsman: --It would just ratchet further south.

And I submit that this certainly is not an accurate interpretation--

Unknown Speaker: That's about as chauvinistic approach as you can take.

[Laughter]

Mr. Brunsman: --Exactly.

This is the most favorable boundary, I think--

Unknown Speaker: Look at all the land you picked up.

Mr. Brunsman: --It's mostly just water.

Unknown Speaker: Look at all the shoreline you pick up when it moves south.

Mr. Brunsman: Well, but we haven't really picked up any shoreline.

Regardless of what line the Court would adopt in this case, it's a water line either way.

I don't think either State is going to gain any shoreline one way or the other, no matter how it's concluded.

But getting back to the Joyce-Watkins case, as the Chief Justice indicated, that's the most favorable possible version of low-water mark the State could have come up with.

That rule was cited by the various authorities within the State of Illinois from 1927 through 1973.

I would submit that that alone shows that Illinois has not acquiesced to the less favorable line that Kentucky claims in this case.

So in summing up, Illinois' position in this case is first of all, of course, that the boundary between Illinois and Kentucky is controlled by the prior decisions of this Court in Ohio v. Kentucky and Indiana v. Kentucky.

It should be the 1792 low-water mark.

Kentucky's defense of acquiescence fails, I believe, first because Kentucky authorities themselves have repeatedly recognized the 1792 low-water mark, and that is... you can juxtapose that to the fact that there is not a single witness or document in the record that says... that Kentucky can point to that says it's the low-water mark as exists from time to time.

That, those words appear in the pleadings before this Court, and nowhere else that I am aware of.

In addition, Illinois rely on the fact that there is evidence of confusion in both States, and once again that's incompatible with a finding of acquiescence based on a continuous claim of right.

Finally, Kentucky has based its argument in part on the suggestion that Illinois has never exercised any jurisdiction on the river.

I think there are examples in the record at least as concrete as those Kentucky can point to to show that we have exercised jurisdiction over some part of the river south of the existing shoreline.

And that all of those factors add up to a situation where you simply do not have acquiescence.

If the Court has no further questions, that's all I have.

Unknown Speaker: Thank you, Mr. Brunsman.

Mr. Pearson, do you have rebuttal?

You have 3 minutes remaining.

Rebuttal of Rickie L. Pearson

Mr. Pearson: I do.

Thank you very much.

With respect to the 78 permits issued by Illinois officials, Kentucky would indicate from the outset that it cannot stop Illinois from systematically developing its shoreline or its bank.

In other words, those riparians along the bank have those rights.

This is exactly the teachings in New Jersey v. Delaware.

Because you allow the development of the Illinois shoreline, just like in New Jersey v. Delaware, the State which allows that does not abandon the defense of acquiescence.

Secondly, with respect to the Joyce-Watkins case which was the Illinois case, as indicated in Vermont v. New Hampshire, only the U.S. Supreme Court can determine the boundary.

The Illinois appellate court cannot determine that boundary.

Furthermore, if you read the Joyce-Watkins case extremely closely, you'll find out that they recognized that the boundary is a moving boundary, which is consistent with our theory that it's the low-water mark wherever it may exist from time to time.

Finally, with respect to Illinois' argument that there is uncertainty regarding where the boundary is located, this Court can end that uncertainty.

It can conclude that the boundary between the two States is the low-water mark on the northwestern side of the river, which everyone can see.

Every fisherperson can see.

Every person having a boat on the river can see.

With that in mind, Your Honors, thank you.

Chief Justice Rehnquist: Thank you, Mr. Pearson.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

Attribution:

The OYEZ Project

Featured:

Georgia v. South Carolina - Oral Argument

Fri, 09 Jan 2009 14:49:19 +0000

Case:

Georgia v. South Carolina

Media File:

74orig_19900108-argument.mp3

Related Transcript:

1989_74_orig_argument.xml

Transcript:

Argument of Patricia T. Barmeyer

Chief Justice Rehnquist: We'll hear argument next in Number 74, Original, the State of Georgia v. the State of South Carolina.

Ms. Barmeyer, you may proceed.

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

This original action was initiated by Georgia in 1977 in order to resolve disputes concerning the boundary between Georgia and South Carolina in the lower Savannah River, the mouth of the river and the lateral seaward boundary.

Both Georgia and South Carolina have filed exceptions to the reports of the Special Master.

In order to outline the exceptions, I'd like to ask the Court to turn to Appendix B to Georgia's brief and exceptions.

Appendix B is a map of the relevant area.

Unknown Speaker: What color is it?

Mr. Barmeyer: They are all beige.

Unknown Speaker: They are all beige.

Okay, Appendix B where?

Mr. Barmeyer: Appendix B to Georgia's exceptions and brief [inaudible].

Unknown Speaker: That's the 1855 shoreline on chart?

Mr. Barmeyer: That is correct, Your Honor.

This is a modern-day map which is shown in gray, and superimposed on the modern-day, 1983 map, is--

Unknown Speaker: Appendix which?

Mr. Barmeyer: --Appendix B.

Unknown Speaker: Is this exception to the brief of South Carolina?

Mr. Barmeyer: Exceptions and brief of the State of Georgia.

Unknown Speaker: And it's in the back?

And it's B as in boy?

Mr. Barmeyer: B as in boy, and it folds out.

Unknown Speaker: Or in baker or one of those things?

Mr. Barmeyer: Barmeyer.

Unknown Speaker: Is this it?

Mr. Barmeyer: Yes, sir.

Yes, Your Honor, that is it.

All right.

This map is a modern-day map which is shown in the lighter color gray.

Superimposed on the gray, in black, is an outline of the 1955 shoreline.

The Special Master found that the 1955 map was the earliest authoritative map of the area, and it was on the 1855 map that he drew the recommended boundary line.

On this map the Savannah River flows from upstream, which is at the left, to the Atlantic Ocean, which is on the right.

The State of South Carolina is at the top of the map.

The State of Georgia is at the bottom of the map.

The city of Savannah is on the left.

The Special Master's recommended boundary line is shown in yellow, and Georgia's exceptions are shown in red.

Unknown Speaker: I know this much already: you're in big trouble.

[Laughter]

Mr. Barmeyer: I'm trying to be sure we're all together at the outset.

Unknown Speaker: I think we're with you.

It may take more than that.

Mr. Barmeyer: Before I go to the specific areas in dispute, I'd like to remind the Court of the controlling document here, which is the Treaty of Beaufort in 1787, which was entered into by Georgia and South Carolina.

Unknown Speaker: Is the whole... is the entire treaty anywhere in your briefs?

Mr. Barmeyer: Yes, sir.

It is Appendix A, actually Articles 1 and Articles 2 are Appendix A to Georgia's brief and exceptions.

Unknown Speaker: But that's not the entire treaty.

Is the entire treaty anywhere in the briefs?

Mr. Barmeyer: It is in evidence, Your Honor, and those exhibits have been sent to the Court.

By the treaty, the boundary between Georgia and South Carolina is the most northern branch or stream of the river, expressly reserving all islands in the river to Georgia.

This Court had occasion to consider the Treaty of Beaufort in the case of Georgia v. South Carolina in 1922, and the Court further explicated that boundary and determined that the boundary is the geographic middle of the boundary stream, irrespective of the navigation channel or thalweg of the river.

The Court reaffirmed that all islands in the Savannah River are in Georgia.

The Court also stated in 1922 that the boundary stream may be narrow and shallow and insignificant, as compared to the main body of the river, but that doesn't matter if it is the northernmost branch or stream of the river.

Now, first I would like to direct your attention to the Barnwell Island area.

It is about two miles downstream from the city of Savannah, and on this map it is directly north of the inset map, which is simply a slightly larger view of the Barnwell Island area.

The Barnwell Islands were islands of marsh in the Savannah River and were in Georgia by the terms of the Treaty of Beaufort in 1787.

By the evulsive actions of the Corps of Engineers, they became attached to the South Carolina shore.

With the continued improvement and dredging for navigation purposes, improvement of the river and the deposit of dredged material on these marshy islands, they have--

Unknown Speaker: That's a curious way of putting that, evulsive actions of the Corps of Engineers.

I didn't know they were engaged in evulsion.

Mr. Barmeyer: --Well, Your Honor, they have evulsed up and down the Savannah River.

They have blocked the boundary stream by the creation of dams which blocked off the northernmost branch or stream of the river, and that--

Unknown Speaker: And you claim that is the evulsion?

Mr. Barmeyer: --That is right, Your Honor.

And the Special Master agreed with that.

Unknown Speaker: Because it is a sudden change rather than a gradual one that comes from accretion.

Mr. Barmeyer: That is right, Your Honor.

That is correct.

Unknown Speaker: Excuse me, you don't claim the... the evulsion is just the creation of a barrier to the flow.

It's the dredging and depositing it on the shore, isn't it?

I mean, would just building a jetty out into the flow constitute evulsion?

Wouldn't that jetty simply create not evulsion but accretion further downstream?

If accretion should happen because of the jetty, that wouldn't be called evulsion, would it?

Mr. Barmeyer: That is right, Your Honor.

The distinction, we believe, between evulsion, which we had in this case, and accretion is accretion is the deposit of material by the gradual action... by the water dropping sediment.

Unknown Speaker: Even if that water has been diverted by a jetty or some action by the Corps of Engineers.

Mr. Barmeyer: That is correct.

Unknown Speaker: It would still be accretion.

Mr. Barmeyer: That is correct.

Unknown Speaker: In this case what we had was the Corps of Engineers dredging material from the river bottom and placing it blocking the... this boundary stream.

With Barnwell Island, the issue is prescription and acquiescence.

South Carolina contends that actions which are primarily transactions by and among members of one family and isolated and intermittent actions by local county officials have operated to change the boundary between Georgia and South Carolina and to put Barnwell Island in South Carolina, in the face of South Carolina's continued reiteration of the Treaty provisions that all islands are in Georgia, and in spite of actions by the United States and actions by the State of Georgia on maps and other official actions showing Barnwell Island in Georgia.

Moving downstream to the next areas in dispute, there are two areas of made land on the north shore of the Savannah River which South Carolina has excepted... where South Carolina has excepted to the Master's recommended line.

They are not labeled here, since this went with Georgia's exceptions, but there are two places.

One just to the left or upstream of Jones Island, where the boundary line crosses on to the northern bank, and then another area downstream of Jones Island, which is called Horseshoe Shoal, although, again, it is not labeled here.

Where on the map, from left to right, where is Jones Island?

Is it... oh, I see it.

It is roughly in the middle from left to right, isn't it?

Mr. Barmeyer: Roughly in the middle.

It is a triangular island.

Both upstream and downstream there are these two areas of made land.

South... the Special Master concluded that the change in the bound... in the Savannah River, was by evulsive actions by the Corps of Engineers, and as a result the boundary did not move.

South Carolina has excepted to that recommendation.

The next area I would like to direct your attention to is Oyster Bed Island, which is at the point where the yellow line and the red line diverge.

Oyster Bed Island was not in existence in 1787.

It emerged gradually and naturally from the bed of the Savannah River in the late 19th century.

It is now attached to South Carolina by more dumping of dredged material by the Corps of Engineers.

The Special... Georgia contends that it is in Georgia, either because all islands are in Georgia, even if they formed after the Treaty of Beaufort, so long as they formed naturally, or, in the alternative, that Oyster Bed Island must be in Georgia because it is south of the geographic middle between the islands that were in existence in 1787, which is Cockspur Island, Georgia, just to the south, and Turtle Island, Georgia... Turtle Island, South Carolina.

The Special Master was following a geographic middle in this... his yellow line, until he got to the point at the southern tip of Turtle Island, when he, rather inexplicably we contend, jumped from a geographic middle boundary to delineation of a boundary in the navigation stream... navigation channel of the river.

Unknown Speaker: Did he give any explanation at all for his change?

Mr. Barmeyer: His conclusion was that the decision in 1922 that the thalweg did not apply, he concluded that that did not control in the mouth of the river area.

And he concluded that the framers must have had the navigation channel in mind when they drew the treaty.

Unknown Speaker: Well, if Oyster Bed Island hadn't come into being, this line probably wouldn't have jigged the way it did.

Mr. Barmeyer: I think that is correct, Your Honor.

Unknown Speaker: Well, but he had to choose which side of the island to go on, didn't he?

Mr. Barmeyer: That is right.

Unknown Speaker: And which side to... he did go halfway between Oyster Bed Island and some other place, didn't he?

Mr. Barmeyer: Between Oyster Bed Island and Cockspur Island?

Unknown Speaker: Yeah.

Mr. Barmeyer: Roughly, he did, Your Honor.

Unknown Speaker: Well, why shouldn't he do that rather than go on the north side of Oyster... Oyster Bed Island?

Mr. Barmeyer: Well, his, his conclusion was that the geography in 1855 was what was controlling.

And using that theory and using his theory that he was going to follow the 1922 decision so long as there were islands in the river, I think he necessarily should have continued that geographic middle, at least until he passed Cockspur Island, Georgia, which everybody concedes is an island in the Savannah River and in Georgia.

If he had only continued that a little bit further to the eastern end of Cockspur Island then, although we would have disagreed with it, he could then have made a dog leg to the navigation channel of the river, and Oyster Bed Island would have been in Georgia rather than in South Carolina.

Unknown Speaker: Ms. Barmeyer, is it... is it true that he would have, would not have done this if Oyster Island didn't exist?

I am under the impression he would have done it anyway.

I thought that he was regarding the shoal that is north of Oyster Bed Island as the substitute for a headland in defining the mouth of the river, and that the reason he went into the navigation channel at that point is simply effectively he was saying that is where the river ends.

Mr. Barmeyer: That's further east, Your Honor--

Unknown Speaker: And he would have done that whether the island was there or not.

Mr. Barmeyer: --In that area, that's the mouth of the river.

But that's further east.

If I could get you to follow his line a little further east, you see Tybee Island, Georgia.

He found that the mouth of the river was just north of Tybee Island, and he referred to a large prominent shoal opposite Tybee Island, and did, I believe, more or less substitute that shoal for headland.

But that decision really had nothing to do with the Oyster Bed Island area.

Georgia contends that he should have stayed in the geographic middle throughout the boundary waters, that he should have determined the line based on the nearest point in Georgia and the nearest point in South Carolina until he reached the seaward limit of the internal waters of Georgia.

Unknown Speaker: And what is that limit, in your view?

Mr. Barmeyer: I would direct your attention, Justice Stevens, to this oblique line that goes from Hilton Head Island--

Unknown Speaker: I know, you think the mouth of the river is Hilton Head at the north and Tybee Island at the south.

Mr. Barmeyer: --That is right.

That is certainly the closest point in... South Carolina and the closest point in Georgia.

Unknown Speaker: Do the parties agree that the Tybee Island is... is the point from which you measure the southern boundary of the mouth of the river?

Mr. Barmeyer: The parties are in agreement on that.

Unknown Speaker: They are in agreement on that?

Mr. Barmeyer: Yes, sir.

Unknown Speaker: So you either have to draw a rather horizontal line or else go up to Hilton Head.

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

All the record and evidence of the 18th century perception was that the framers understood the mouth to be at Tybee rather than in this Oyster Bed Island area.

Unknown Speaker: And your position is the mouth is the entire area between Hilton Head and Tybee?

Mr. Barmeyer: That is right.

Even if the entire area is not technically the mouth, it is our position that the 1922 case said you don't look at the thalweg, you don't look at the navigation channel, you find the geographic middle between the island shore in Georgia and the closest point in South Carolina, and that you can draw a very simple... simply plotted geographical mathematical line by using those closest points.

And in this case it would be Turtle Island, South Carolina, Daufuskie Island, South Carolina and Hilton Head Island.

Unknown Speaker: The river has a very big mouth.

Mr. Barmeyer: It has a very--

Unknown Speaker: Everything inside of that is inland waters?

Mr. Barmeyer: --Everything inside of that, this oblique line, is the closing line drawn by the United States.

On the left we have internal waters, and to the right we have the territorial sea.

Unknown Speaker: Is there any historical evidence that Hilton Head was considered a headland for this purpose?

Mr. Barmeyer: Yes, yes, Your Honor, there are two key references here.

One is by General Oglethorpe, who was the founder of the colony of Georgia, who referred to Hilton Head as being at the mouth of the Savannah River.

And a subsequent key reference is from the United States coast survey which, in describing the mouth of the Savannah River, referred to Hilton head Island.

Unknown Speaker: Everybody ignores the New River and the Wright River?

Do they have a mouth, or do they just go into the Savannah?

Mr. Barmeyer: Well, Your Honor, they are tidal rivers.

We call them rivers, but they really are arms of the sea.

This is a... is an estuary where the fresh waters meet the ocean, and this is an entire area of mixing.

But given the fact that everybody agreed that Tybee Island was the mouth of the river on the south, both Tybee Island and Hilton Head Island are really barrier islands that form the boundary between the ocean and the estuary.

And Hilton Head Island is as much an island at the mouth of the Savannah River as Tybee Island is, we submit.

Unknown Speaker: What about Calibogue Sound?

Is that a sound up there, Calibogue Sound?

Is that what it is?

Mr. Barmeyer: It is--

Unknown Speaker: That's also in the mouth of the river?

Mr. Barmeyer: --It's an arm of the sea.

It is a place where these waters enter and flow out, and it flows around Tybee Island.

Unknown Speaker: Well, whatever, it's an awfully big mouth of the river if it embraces the... the entrance to a sound and the entrance to two other rivers, whether they're tidal or not.

Mr. Barmeyer: Well, it is.

Its shape is... gives a little pause because it is elongated.

In the territorial sea, the Special Master, just to go through the exceptions, the Special Master has... recommended a boundary which is basically an equidistant line with some minor modifications.

South Carolina has excepted to the Master's line in the territorial sea, contending that it cuts off South Carolina's coastal front.

Georgia believes that the recommended boundary in the territorial sea is imminently correct, if the Special Master has used the correct starting point.

If the starting point is incorrect, then Georgia would submit that the line should be redrawn using the same principles of law.

I would like to focus first on the Barnwell Island area, which all parties agree is the most important and valuable area in dispute.

And there the question is prescription and acquiescence.

This Court, in many cases, has invoked the doctrine of prescription and acquiescence as an aid in determining the correct location of a boundary which is otherwise uncertain.

In such cases the Court has looked for proof of continuous undisturbed exercise of sovereignty for a period which is long enough to lead to a general, indeed a virtually universal conviction as to the boundary location.

It's Georgia's position that South Carolina's claim of prescription and acquiescence is refuted by the actions of South Carolina, the actions of the United States and the actions by the State of Georgia.

Turning first to the actions by South Carolina, we have South Carolina's solemn agreement by the Treaty of Beaufort that all islands are in Georgia.

And South Carolina continued to reaffirm that absolute, unequivocal language of the Treaty of Beaufort: all islands are in Georgia.

There were discussions between the two states in the 19th century about where exactly the line was.

Was it on the South Carolina bank, was it on the island bank?

Discussions about fishing rights, navigation rights, taxation of structures and so forth.

And in all those discussions, correspondence between the governors and the attorneys general, cases in this Court, there was never so much as a whisper from South Carolina that there is any exception to the blanket reservation of all islands in the Savannah River to the State of Georgia.

Unknown Speaker: Yes, but that is just a condition that was prior to the prescription, isn't it?

Mr. Barmeyer: Well, but that, that was... South Carolina--

Unknown Speaker: I mean, you start with that these islands did belong to Georgia originally, but then by prescription they became the property or sovereign property of South Carolina.

Mr. Barmeyer: --That is right.

But every time Georgia and South Carolina met to debate the boundary, South Carolina says to Georgia all islands are in Georgia.

You don't need to worry about it.

At the same time, they are now saying well, but we were prescribing on this tract of land, Barnwell Island, but we never really told you about it and we never had a formulation of the treaty that would encompass those islands.

In most of the cases by the court we are dealing with some construction of a boundary document which is a rational basis, a reasonable basis for the exercise of prescription or the exercise of possession and jurisdiction.

Here we think South Carolina's continued statements refutes the claim of prescription and acquiescence.

Indeed its statements, its pleadings to this Court in 1922, and the 1922 case was dealing with an island which was only 35 or 40 feet from the South Carolina shore, and South Carolina never took the position in that case that islands close to the South Carolina shore are in South Carolina.

Unknown Speaker: That was considerably upstream, wasn't it?

The 1922 case?

Mr. Barmeyer: Yes, Your Honor, it was.

It was not in this particular area.

One key fact is that Barnwell Island continued to be islands, and perceptible as islands in the river, until well in the 20th century, as shown by Appendix D to our brief, which is an aerial photograph in 1931.

The actions by the United States we believe are critical, because the United States continuously understood and published maps showing Barnwell Island in Georgia.

For these maps I would note that we have a chronology, which is Appendix J to our rebuttal brief, where some of these key facts and key publications are set forth.

But I will outline some of them briefly.

In 1866 the United States performed a survey on Barnwell Island, and labeled that survey as Barnwell Island, Georgia.

There are no maps in the 19th century with boundary line--

Unknown Speaker: Ms. Barmeyer, do you say that prescription can't occur if the United States has published a map showing something is in Georgia rather than in South Carolina?

Mr. Barmeyer: --No, Your Honor, not just one map.

But what the cases look for is a general conviction.

Prescription and acquiescence is used to ratify what is already well understood.

And in this case we think the continued publication of maps showing Barnwell... by the United States and indeed by Georgia, showing Barnwell Island in Georgia, is sufficient to refute South Carolina's contention that there was a general conviction that Barnwell Island was in South Carolina.

Unknown Speaker: Well, what is your strongest case, the strongest case for your position on prescription, do you think?

Mr. Barmeyer: There is really no case just like this, Your Honor.

There is no case where a state is being divested of an area of land that is currently in its possession, as Barnwell Island is currently in the jurisdiction of the State of Georgia.

The closest case is Arkansas v. Tennessee.

It is really the only case we found where there is an island... this is Arkansas v. Tennessee in 1940, where there was an island in the river which was clearly in Arkansas by the boundary document, but prior to the admission of Arkansas into the Union, it became affixed to the Tennessee shore.

And from then on there was a universal treatment of that land as being in Tennessee.

Generations of people grew up on that island; they were educated in schools on the island, operated by Tennessee.

They voted in Tennessee elections; they were married by justices of the peace in Tennessee.

So there really was a course of conduct, universal treatment of the land as being in Tennessee, without any objection by the State of Arkansas.

Of course in this case, Georgia did not acquiesce.

Georgia went into court in 1953, the first time that Georgia was aware that anybody was claiming that the land was in South Carolina.

Georgia went into court and intervened, claiming Georgia dominion, sovereignty and title over Barnwell Island.

The case was thrown out by the district judge for lack of jurisdiction.

The case was appealed by the United States and by Georgia to the Fifth Circuit, and the Fifth Circuit ruled there is, there can be no doubt that Barnwell Island is in Georgia.

We certainly think that goes also to refute a general conviction that Barnwell Island is in South Carolina.

Back to the maps of the United States, in 1911, 1920, 1932, 1957, 1959, 1970, 1971, 1974, these are official published maps, circulated maps by the agencies of the United States, without ever any protest by the State of South Carolina that the map... they contended the boundary was incorrect.

Unknown Speaker: Would you refresh my recollection?

The facts in this are awfully hard to keep in mind.

Am I correct in recalling that as far as the records of title ownership and the like, that they were all kept in South Carolina, and that Georgia had no deeds recorded in Georgia, and the taxes were paid in South Carolina?

Mr. Barmeyer: That is correct, Your Honor.

Those deeds and those transactions--

Unknown Speaker: So if a lawyer wanted to go buy the property and register it, he probably would have gone into the South Carolina jurisdiction rather than Georgia.

Mr. Barmeyer: --If that... if anybody had wanted to buy it.

In fact, what we have is transactions--

Unknown Speaker: Well, apparently somebody does now.

I guess somebody wants to buy it now.

Mr. Barmeyer: --Yes, sir, it has more value now than it did then.

But the transactions which are of record are only among members of one family, and in fact there are really only a handful of deeds--

Unknown Speaker: But they thought they lived in South Carolina.

They thought they lived in South Carolina.

Mr. Barmeyer: --That family clearly thought the islands were in South Carolina.

They never resided on the islands.

They farmed them for a brief period in the 19th century as part of a rice plantation that they had on the mainland.

So there were never any residents on the island.

But it is clear that family... but we contend it was very limited to that family in terms of a perception that the islands were in South Carolina.

Unknown Speaker: But they were apparently the only people who were interested.

Mr. Barmeyer: Well, that's right.

They couldn't find a buyer for the land.

They finally abandoned it and then it was seized for non-payment of taxes by the sheriff.

There really wasn't much that ever happened on these islands, and we think again that distinguishes this case from Arkansas v. Tennessee in 1940 and the other cases where the court has used prescription and acquiescence to change the jurisdictional location of a tract of land.

Unknown Speaker: It was seized by the South Carolina sheriff?

Mr. Barmeyer: That's right, Your Honor.

Unknown Speaker: If we rule in your favor, is it still owned by South Carolina?

Mr. Barmeyer: Well, if you rule in our favor I think it is clear that it is owned by the State of Georgia, if it's... although those questions would be decided by the courts in the respective states, whichever state is to prevail.

The South Carolina claim fails, we contend, on both points, both on prescription, because the acts that were shown to have been performed regarding Barnwell Island are so sparse and generally not of record, generally not of widespread notice or notoriety, and because there hasn't been acquiescence by the State of Georgia as indicated both by Georgia maps and by the maps by the United States.

I would like to save the remainder of my time for rebuttal, if I may.

Unknown Speaker: Very well, Ms. Barmeyer.

Mr. McCutchen.

Argument of Thomas E. McCutchen, Jr.

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

While several questions are here before the Court, the major issue, the major financial issue is the Barnwell Island islands.

And South Carolina seeks the approval of the Master on that issue.

By interrogatory number 3, Georgia admitted that it asserted no jurisdiction or sovereignty over the Barnwell Islands between 1760 and 1956, 196 years.

And by interrogatory number 55, Georgia admits that there was no dispute, public or private, regarding the territorial jurisdiction of Barnwell Island between 1787 and 1955, 168 years.

South Carolina exercised the unquestioned jurisdiction during that period.

Georgia's only exercise of sovereignty over the Barnwell Islands in any way between 1732 and 1955 was a 1760 grant which was abandoned and a possible property taxation in 1825, 1830 and 1831.

The Special Master found that this 1760 grant or his estate effectively abandoned this property within several years.

The grant actually was never recorded.

There is no recorded grant in Georgia of the Barnwell Islands at any time.

Unknown Speaker: Mr. McCutchen, suppose I owned a piece of private land out in the country somewhere, and I had never even camped out on it in 50 years, and you... you had gone under dark of night and camped there a couple of nights, but I never knew about it.

Would you be making the same argument, that, you know, Scalia has never been on that land for 50 years, and I have been there frequently.

Mr. McCutchen: No, Your Honor--

Unknown Speaker: Doesn't there have to be a notoriety?

Isn't the whole point that I have to have knowledge that you are on my land and you are asserting juris... you are asserting ownership of my land?

Mr. McCutchen: --Your Honor, there is no trouble there, because the owners were Savannah people living in Savannah, who owned the land and went to South Carolina to obtain the grant.

They put rice plantations on there for a period of over three decades.

This property is only 500 or 600 yards across the river from Fort Jackson.

It's easily seen from Hutchinson Island.

It is seen and admitted by Georgia, from the city of Georgia itself.

The documents which were being recorded for over 100 years were by people who own lands and property in South Carolina and in Georgia, and they recorded these documents in Georgia.

There were mortgages involved.

They had Georgia factors paying the taxes to South Carolina.

So the notoriety of this is totally consistent for all this period of time.

Unknown Speaker: Well, do you... do you say it is enough to bring home the claim of the occupation to Georgia citizens, or does it have to be brought home in some way to the government of Georgia?

Mr. McCutchen: Well, it was brought home to everybody who was around, including the aldermen, to the city council.

It was perceived... we say the islands were perceived as being in the State of South Carolina.

The grant which Georgia attempted in 1760, 17 years before the treaty, Georgia never did it again because of the perceptions that followed certainly after that treaty.

And it was only a few years after 1787 that South Carolina granted this property the first time to Hezekiah Roberts, in 1795, a grant which expired because it wasn't recorded.

But in 1813 South Carolina granted it again to Archibald Smith.

He was in Savannah, a native of Savannah, a very prominent farmer, and he perceived that he had to go to South Carolina to get the grant of the Barnwells.

And so from that time forward it has been perceived as being in South Carolina.

We have quoted 20 different observations of the people and the time, historically, as where they saw that these properties were.

Of course, at this long period of time we don't have the live bodies, so we have to go back to the times and how they were perceived.

Unknown Speaker: And you think the Special Master was absolutely correct?

Mr. McCutchen: Absolutely correct.

Unknown Speaker: In all phases.

You don't... you are supporting his report entirely with respect to Barnwell?

Mr. McCutchen: With respect to Barnwell, we are supporting it.

Now, Georgia, as I said, after 18... 1787, never made any act of attempt of a granting.

No one has ever gone to Georgia to try to perfect any grant.

Nobody has gone back to Georgia and asked for another grant.

And when the South Carolina granted the islands to Archibald Smith in 1813, it granted three islands, described as islands, as marsh islands.

Incidentally, when the first grant occurred by Georgia in 1760, it was only described as two marsh islands, and there were only two in existence.

The tax books in Georgia perhaps show payment of taxes in 1825, 1830 and 1831.

And described in that is land marsh, land marsh and three marsh islands.

May or may not have been these islands.

But the grant by which it would had to have been if it were at all was the 1813 grant, of course, of the Barnwells from South Carolina.

Had Georgia even brought this suit in 1900, the claims of the Barnwells would have been foreclosed by acquiescence and prescription.

And further, South Carolina in this century sold these Barnwell Islands for non-payment of taxes in the 1930s.

And the commission in South Carolina which acquired them then subsequently conveyed them.

And the chain of title is consistent from 1813 down till this very day in South Carolina.

And there is no chain of title in Georgia.

And Georgia's argument that no one could have seen them in exercising this sovereignty cannot be true because of the unobstructed view of 500 or 600 yards away and because of the intense interest of people in rice plantations and in farming.

The Barnwells were used for rice plantations and planting for decades.

And these dike fields and all are shown, easily are visible, cannot be ignored.

Rice lands were extremely valuable, nothing more valuable in that area.

They were as prominent and valuable as a 10-story building would be today.

No one thought that the Barnwells were ungranted.

No one appeared in Georgia and said give me a grant, and no one in Georgia said we have got untaxed land out there, the Barnwells.

No one applied for taxation.

The Barnwells were located at the intersection of the superhighway of that day in Georgia, the Savannah River and the land, the road which carried from Savannah to Charleston, the most prominent city in South Carolina.

This is not a remote, hidden area.

It was opposite the city of Savannah and--

Unknown Speaker: There was a bridge over the river at this point?

Mr. McCutchen: --Pardon me, Your Honor?

Unknown Speaker: There was a bridge over the river at this point?

Mr. McCutchen: No, sir, but the ferry that came from Savannah lands right by the Barnwell Islands.

It is a ferry road and so designated back at that time.

And that was the route to Charleston.

So from Savannah you went right by the Barnwells, and of course any boat going from Savannah had to go by the Barnwells to get on out to the sea.

So over and over the Smiths and the Barnwells were according, in Chatham County, Georgia, their property, because they own it in both states.

It was Ped and Archibald Smith's estate when he died in Savannah.

He was not a stranger.

And, of course, later on there were acknowledgements of the division of the lands among the children in the 1860s, even a mortgage in the 1890s between them.

And a prominent Savannah merchant was a factor who was paying the taxes to South Carolina for the Barnwells.

Unknown Speaker: What about the Fifth Circuit case in 1955?

Mr. McCutchen: South Carolina was not a party to that case, and there is nothing in the record to show that South Carolina knew anything about that until that case was decided.

And, of course, the Fifth Circuit has no jurisdiction on boundary matters.

South Carolina was not served in that case.

But in 18... in 1955--

Unknown Speaker: Would Georgia's actions in that case be a prescriptive act of its own?

Mr. McCutchen: --Well, even if it were considered that way, that is 1955.

First, South Carolina filed in this Court a petition to decide the boundary in '55; Georgia opposed it.

It was refused.

South Carolina filed again in 1957.

Georgia opposed it.

It was refused.

This case we are here for today started 12 years ago.

So you have got a period of only 20 years at most in which Georgia could have done, or whatever it has done to reacquire what it had lost.

And I say to you it cannot obliterate the past of almost 175 years or more.

Unknown Speaker: Mr. McCutchen, why did it take so long for this case to get here?

Mr. McCutchen: Well, Your Honor, we bifurcated the trial, and the case did start in 1977, and filed the reports, and, Your Honor, I could not go beyond that in saying that it has been a lengthy matter.

The record is full of perceptions of individuals that these islards were in South Carolina.

In the 20th century South Carolina has continued to exercise jurisdiction by law enforcement, by South Carolina wildlife personnel patrolling the Barnwell Islands, by issuing shad fishing licenses for nets on the Barnwells.

And Georgia really has no explanation or excuse for her prolonged inactivity.

Georgia has now abandoned Rabbit Island.

All of the Barnwell Islands were right next to the shore.

Rabbit was one of them; it is in a line there.

Whatever reasons have existed for Georgia to abandon its claim to Rabbit Island, vigorously contested in the trial below.

Unknown Speaker: Is Rabbit the one right next to the two described as Barnwell Islands?

Mr. McCutchen: Yes, Your Honor.

It is the one farthest upstream.

And whatever its reasons to have abandoned Rabbit appear totally inconsistent with its efforts today to assert its claim as to the other islands.

You see, Rabbit was one of the two that was in the Tannant grant in 1760, the only time Georgia exercised any dominion.

The other islands, other than the one next to it, did not even exist then.

There's more evidence of inhabitation and cultivation on Hog Island, which Georgia still claims, than on Rabbit Island.

Georgia did nothing different as to Hog Island or Long Island than it is to Rabbit Island, which is abandoned.

And Georgia says in its brief on page 13, note 6, that Rabbit Island is in South Carolina.

But it says it's not there because of accretion.

It is only there, apparently, there is no other reason given, by virtue of prescription and acquiescence.

And the Master said that only Rabbit and Hog existed in 1787.

And after the Master's report Georgia abandons one of the only two which existed at treaty time.

If you refer to Appendix E to the exceptions and brief of Georgia and its rebuttal index also prepared by Georgia, you will see the clear and continuous chain of South Carolina's claim to the Barnwell Islands, notwithstanding the efforts of Georgia to list, for instance, 60 years of paying taxes in South Carolina as a one-line entry, and Georgia wants to list these three years in 1825, '30 and '31 as three entries to bolster an attempt to finite some exercise over the islands.

If you refer to pages 39 to 66 of the first report of the Master, every phase of the Barnwells is covered by him, from perception and historical and title and so forth.

Now, in this 1955 circuit case which Georgia seeks to claim gives it some rights, the Special Master object... rejected that, saying it was neither collateral estoppel, and it was not res judicata.

And he found that record very sparse, which it was.

There is no evidence, as I said, that South Carolina knew about that until the litigation was over.

It was not a party, not served.

And Durfee v. Duke certainly clearly teaches us that the Fifth Circuit couldn't bind South Carolina or Georgia to the location of a boundary between them.

Unknown Speaker: xxx.

Mr. McCutchen: There is not even one title deed--

Unknown Speaker: Mr. McCutchen, certainly if prescription had not occurred by the time that that suit was brought, that would have been an act of Georgia at any rate that would have refuted its acquiescence.

Mr. McCutchen: --Except that Georgia was not even in the case in the beginning and petitioned in it after certain preliminary motions had been brought.

And Georgia in its brief before the Fifth Circuit said to the Fifth Circuit, the boundary between South Carolina and Georgia is not involved in this case.

And Georgia made that representation in its brief to the Fifth Circuit, and the Fifth Circuit in its decision says the boundary between South Carolina and Georgia is not involved in this case.

And we think South Carolina can stand on that, should stand on it just as the Fifth Circuit accepted it.

Georgia now seeks to fault South Carolina for participating and saying we lost rights.

But it would be unconscionable for the... Georgia to have gone to the Fifth Circuit and made that active representation, saying there is no boundary involved at all and now seek to have South Carolina precluded in some way by virtue of that decision.

And again, Georgia opposed our efforts to file a case in this Court in '55 and '57 to determine the boundary.

After the 1880s, the next 75 years, South Carolina continued its taxing and sovereignty, and Georgia did nothing during this prolonged period.

The record before this Court is the 1787 treaty, and what has happened since.

It is the first and only record of the 200 years of acquiescence, of notice, of records, of the exercise of jurisdiction and sovereignty, of law enforcement, of grants by South Carolina, of continuity of title, of taxes paid to South Carolina, and of Georgia's total unerupted acquiescence and abandonment for well over 100 years.

This is South Carolina's first day in court on that boundary.

I would like to turn to Denwill and Horseshoe Shoal.

The Corps of Engineers has been working since 1840 to keep the port of Georgia open, deeper, more accessible.

Unknown Speaker: The port of Savannah?

Mr. McCutchen: Pardon me?

Unknown Speaker: You said the port of Georgia.

You mean the port of Savannah?

Mr. McCutchen: Excuse me, the Corps of Engineers to keep the port of Georgia open.

And there has never been a South Carolina port there.

Unknown Speaker: Where is the port of Georgia?

Mr. McCutchen: Savannah, Georgia.

Savannah, Georgia, the port.

Excuse me, Your Honor.

So, all the dredging and all the erection of wing dams and the blocking of channels and the diversion of streams and the side dams and the training walls have been solely for the city of Savannah and its port in Georgia.

And Georgia now seeks to obtain not only the benefit of this scouring and diversion and deviation of water in blocking the channels, but it wants to say that deposits now, which have come up on the South Carolina side on Denwill, is Georgia land.

Denwill has always been fast land in South Carolina on the northern shore.

Due to the training walls and silting and damming and deposits, an area which was underwater as a part of the Savannah River immediately adjacent to the South Carolina bank, has now become fast land, totally attached to the South Carolina fast land.

And the Master did recommend that this area, over a mile long, belonged to Georgia.

Now, Georgia does not deny that this new land resulted in part from natural sedimentation, reply brief of Georgia 5 and 7.

But here, because of these manmade devices in part, the contention is that a different result obtains.

If this be corrective course on this type of system, you could take 15 miles from that city on down to the ocean and block South Carolina off from every bit of its land.

South Carolina did not place this fill or construct these training walls, so it is not involved in this act.

It was not an evulsive change as we see it.

It occurred over a period of probably 40 years.

Unknown Speaker: Under the act, is there anyway South Carolina could have prevented the Corps of Engineer from dumping the sediment there?

Mr. McCutchen: Your Honor, I guess some relief may have been able to be sought.

Of course, I understand today the Secretary of Commerce may... have the determination of whether the Corps can do something or not, but no action was brought during this period.

Unknown Speaker: I mean, I... I just don't know how that works.

The Corps of Engineer can just dump the stuff anywhere it wants up and down the river?

Just say here's a good spot, and--

Mr. McCutchen: Well, or the city of Savannah suggested it need... keep its scouring, and certainly South Carolina during this period did not attempt to stop the Corps of Engineers in its... whatever authority it has with regard to navigability.

Whether the fill started at the South Carolina mainland and moved into the river, or whether it started in the river and moved to the mainland, it doesn't make any difference, because it is now fast land.

The strip on Denwill and the strip on Bird Island, which we show on page 6 of our exceptions and brief as an illustration in our exception, is the same sort of basis.

We excepted the Master's report as to Denwill, and we excepted that it is fated to give South Carolina Bird Island, because Bird Island, many, many times larger than it was in 1787, now has accretions also due to these wing dams.

Same argument is made with both.

I want to say to Your Honors it ought to be rejected as to both, because the accretions to Bird ought to be Georgia, and the accretions to Denwill ought to be South Carolina.

We did this because of the inconsistency in the report.

Now, South Carolina has asserted that islands which formed on the South Carolina side of the river after 1787 belonged to South Carolina.

That involves a little unnamed island upstream of Pennyworth, and unnamed island just south of Pennyworth known as Tide Gate, Oyster Bed Island and of course all the Barnwells except the first two.

There was perhaps a shoal as to the... as to Oyster Bed in 1787, but nothing more.

The Masters found that it emerged in the 1880s or '90s.

Now, if islands emerging after 1787 were included in the treaty, then there would have been no boundary set at that time at all, and the language doesn't say after emerging islands, it says in, which is at present.

So it would have taken a boundary loop to even gone up and gotten the Oyster Bed shoal in 1787.

Unknown Speaker: --Suppose a line... suppose an island pops up right in the middle of the... what is the Latin phrase, the filum?

You had a lot of good Latin in the briefs there, what was it?

It is right in the middle--

Mr. McCutchen: xxx.

Unknown Speaker: --where the boundary line is placed in the northernmost stream, up comes an island right in the middle, and the boundary goes right in the middle of the island.

What would be the situation there?

South Carolina would own half and Georgia would own half?

Mr. McCutchen: That's a possibility.

And I am not saying that Georgia may not, if it went in the center, have even some greater right of interpretation there.

Unknown Speaker: Well, now, but... do you know any other interstate boundary that works like that, where an island in the middle of the river is--

Mr. McCutchen: This is unusual language.

It said islands in the stream.

We think that the Georgia people went there with the idea they had conveyed and granted the islands.

They knew what they had in 1787 and what they had granted, and they wanted to be sure they retained it.

But the Masters found that Oyster Bed Island didn't crop up in the middle of the stream.

It cropped up on the northern side of what the boundary line, as he was in 1787, and so we contend that it is now in South Carolina.

It is in fact a national wildlife preserve.

Unknown Speaker: --I am not asserting it was in the middle of the stream.

I am just asserting that the principle you are arguing for has some rather embarrassing and silly consequences.

Mr. McCutchen: Well, the language that was drawn of course did an unusual thing in reserving islands without further enlargement of the language.

South Carolina excepts to the lateral seaward boundary as drawn by the Special Master.

Unknown Speaker: I take it that both sides object to that, don't they?

Mr. McCutchen: Yes, sir.

Unknown Speaker: Go ahead.

Mr. McCutchen: The boundary recommended by the Special Master extends entirely into waters which lie opposite the coast of South Carolina.

No part of the recommended boundary is opposite--

Unknown Speaker: xxx perpendicular to the closing line, didn't he?

Mr. McCutchen: --Yes, sir, he did.

He did not use an equidistant line.

He started out as if it is an equidistant line, and he--

Unknown Speaker: Well, where did he... where did he start that line from?

Did he, was that halfway on the... halfway between Hilton Head and the--

Mr. McCutchen: --Well, It's shown on the same exhibit in which the former... he just moved up that line--

Unknown Speaker: --How far?

Mr. McCutchen: --and then went out.

Unknown Speaker: Well, how far... where did he start it, though?

Where did he start the line?

What was his principle?

The line extending seaward--

Mr. McCutchen: Well, he took the mouth and then he moved up, and he decided... he started it, a line that South Carolina had drawn as an equidistant line--

Unknown Speaker: --Between what?

Mr. McCutchen: --Between Georgia... the bound... the land... land formations of Georgia and South Carolina.

And he started out on an equidistant line, but as shown in our detailed map, the line of equidistance would have then bent southward, but the Master did not have it bend southward.

Unknown Speaker: Are you talking about the basically north sound... south line that connects Tybee Island to Hilton Head Island?

Mr. McCutchen: No, sir.

I am talking about the--

Unknown Speaker: The east-west--

Mr. McCutchen: --Exhibit B, Exhibit B, which is in the second and final report of the Special Master.

Exhibit B of the Master shows a series of lines.

And the Master started out with line number 5.

Unknown Speaker: --And what was his explanation for starting there, or did he give any?

Mr. McCutchen: Well, he just said under all conditions it was at the mouth and that is where he would start.

But he started on an equidistant line, as drawn by 5, and the Master didn't draw his line on any map after that.

He just said you take number 5 as if is perpendicular and you'd move on out to sea.

Unknown Speaker: On that perpendicular line.

Mr. McCutchen: On that perpendicular line.

Unknown Speaker: Regardless of whether it is equidistant between the coasts.

Mr. McCutchen: And it is not equidistant, because line number 5, the beginning of it dips down.

Now--

Unknown Speaker: Well, what does your opponent insist?

Mr. McCutchen: --Well, the opponent wanted to slide on up the line towards Tybee for three miles and then start.

Unknown Speaker: Naturally.

Mr. McCutchen: And the Master didn't pay any attention to that.

Unknown Speaker: Well, what is your theory that it should... where should it start?

Where should that line start?

Mr. McCutchen: We think... our theory, Your Honor, is that the coast of Georgia is at 20 degrees.

The coast of South Carolina is at 47 degrees.

The coastal fronts, if you overlap them, going out you have the area in... we see in dispute.

And so we are saying that if you divide that between those coastal fronts you would have an area of 123.5 degrees.

And that is where we see as the area of dispute for the overlapping nature of the coastal fronts.

Unknown Speaker: And what is involved?

Jurisdiction over those waters?

Mr. McCutchen: Yes, sir.

Unknown Speaker: This is in... this is within the three mile--

Mr. McCutchen: Yes, sir, but we do not know what significance this line will have in the future days as to the 200-mile outrun.

And of course every degree that it goes up is going to make that the difference.

For instance--

Unknown Speaker: --Well, is that area that is in dispute of commercial value now?

Mr. McCutchen: --For shrimping.

Unknown Speaker: Fishing?

Shrimping?

Mr. McCutchen: Shrimping.

Heavy shrimping area.

And that is one of the reasons this suit apparently started.

Unknown Speaker: And the interest is in which state can regulate it?

Mr. McCutchen: Regulate it.

Control whatever is underneath.

There has been some oil exploration.

Unknown Speaker: Tax it?

Mr. McCutchen: If granted.

If owned by any individuals.

The line of the Master is six degrees farther north than even the most favorable line which is perpendicular to the Georgia coast.

Unknown Speaker: Well, who could... which... I suppose some state can tax the income from that shrimping?

Mr. McCutchen: Yes, sir.

And there are licensed shrimpers in South Carolina and licensed shrimpers in Georgia.

And by that, of course, that is what happened.

Georgia arrested the South Carolina shrimper to precipitate this suit.

And that is a very valuable enterprise in that area.

Unknown Speaker: Mr. McCutchen, looking at Appendix B on, in Georgia's brief, I... how did the... and you support the Master's... the Master's decision to jog the line south just before Oyster Bed Island.

Mr. McCutchen: Yes, sir.

Unknown Speaker: I don't understand what the basis for that angle was.

Mr. McCutchen: He took that position--

Unknown Speaker: You see where the yellow line goes south and where Georgia would prefer the red line... yes the red line.

Mr. McCutchen: --The Master simply said that the area that he had north of that was north of the boundaries that existed in 1787, and there was slight water going in that area.

And so he put that line as being where it was.

These maps, the accretions that have all have occurred since 1787 are very substantial in some of these matters.

But the Master said that Oyster Bed was on the northern side of the stream, as it was in 1787.

Unknown Speaker: He thought that was dry land up there, that that line represented the mid point between dry land on both sides in 1787?

Mr. McCutchen: He said that's the way he would have fixed it, the boundary, as of that time, based on the best evidence that he had before him as of that time.

Unknown Speaker: As I recall, it didn't have to do with dry land.

It had to do with his thinking that the, that the navigation channel was south of there, and that--

Mr. McCutchen: Well, he said the northern stream.

Unknown Speaker: --it was so close to the mouth at this point that we will just follow the navigation channel.

Mr. McCutchen: That's true.

That's true.

The boundary was the northern stream.

But he said Oyster Bed Island was north of the northern stream as it existed in 1787.

And our position, of course, on the lateral seaward boundary is that it should start at the historical mouth, and the mouth--

Unknown Speaker: The mouth... the mouth is different from that closing line between Hilton Head and Tybee, isn't it?

Mr. McCutchen: --Yes, sir.

The mouth is really between Tybee and what you might see as a shoal just north of that, and it has been historically understood for over 250 years and has been treated by all of the observers through the period of time.

William DeBrahm, for instance, the most informed engineer--

Unknown Speaker: The mouth is where, now?

North of Tybee?

Mr. McCutchen: --Right at Tybee.

Right where the intersect, as it goes from Tybee on, as the closing line starts north.

And all the historical reports have said the mouth is at Tybee.

Sir James Wright, the governor of Georgia in 1773, placed the mouth of the Savannah at Tybee.

Unknown Speaker: Well, Tybee is a big... what, at what place on Tybee?

Mr. McCutchen: That is the language they used, and he, Sir... Sir James Wright used actual coordinates that placed it there, as did William DeBrahm, who... the surveyor who put it--

Unknown Speaker: Well, the mouth isn't a point, is it?

It's a--

Mr. McCutchen: --It's a place where the water from the river enters into the ocean.

Unknown Speaker: --I agree with you.

I--

--South Carolina agrees that the south boundary of the mouth is at Tybee.

The question is where is the north boundary.

Mr. McCutchen: The north boundary has always been considered to be at Tybee just above where the south boundary is.

It's confined in there on the ocean floor by virtue of a channel which has been there historically, and that has been the place in which ships have entered--

Unknown Speaker: How far above where the south boundary is?

I mean, that is the only question we are talking about.

Mr. McCutchen: --Half a mile.

Unknown Speaker: On this Appendix B, can you... I... I'm not clear on that.

On Georgia's Appendix B, where, where north of Tybee is the... is the northern point of the line that constitutes the mouth?

Is it at those dotted lines?

Mr. McCutchen: That is where we place it, along in there.

Unknown Speaker: The dotted lines?

Straight north?

Mr. McCutchen: Yes, straight north.

Unknown Speaker: Straight north, or along that closing line?

Mr. McCutchen: Right along that closing line, anywhere right in there would be the... where it is.

Because it has always been referred to as at Tybee.

And that was the way it was perceived in that time.

The Special Master, in the boundary which he gave to the islands of Georgia, used--

Unknown Speaker: Well, he started his line just at the... just at sort of just a little north of where you say the mouth was.

You started his... the Master started his perpendicular seaward boundary just a little north of where you say the mouth was?

Mr. McCutchen: --No, sir.

He didn't start it there.

If we could, if you turn back to Appendix B in the Master's report, you would see the beginning of that line is south of where Your Honor is mentioning.

It is in about the midpoint of that mouth.

If you look at Appendix B--

Unknown Speaker: And you say that is right, where he started it?

It's just that... he just... it's just that he went off in the wrong direction.

Mr. McCutchen: --Yes, sir.

We say he started at the correct place.

Unknown Speaker: Well, then Georgia's... Georgia's Exhibit B is... Appendix B just isn't right.

Well, anyway--

Mr. McCutchen: Well, I see--

Unknown Speaker: --Thank you, Mr. McCutchen.

Ms. Barmeyer, you have four minutes remaining.

Rebuttal of Patricia T. Barmeyer

Mr. Barmeyer: Thank you, Your Honor.

Georgia agrees with the point made by the Chief Justice that South Carolina must show prescription and acquiescence as of 1953, because, of course, otherwise it would be defeated by the action taken by Georgia in intervening and pursuing the case, the condemnation case that went to the Fifth Circuit.

The question is, as of 1953, was there the cumulative notoriety that's required in the cases to change the location of Barnwell Island from Georgia to South Carolina?

Was there any notice to Georgia?

Now, Georgia asserted to the Fifth Circuit that Georgia did not know that the boundary was in dispute, because South Carolina had never made any claim to Barnwell Island that was brought home to the State of Georgia until in 1955, when South Carolina sought to file an original action in the court.

That was the first time that South Carolina appeared on the scene and said yes, we claim Barnwell Island.

As of 1955--

Unknown Speaker: But South Carolina had been on the scene all along, because that's been where the deeds were recorded and the taxes were paid, and this land was being obviously used.

Mr. Barmeyer: --Deeds were recorded and taxes were paid in South Carolina, but those are primarily passive acts by the clerk of court.

If you go to the clerk of court and you record a deed in its improper form, it is going to be recorded.

If you say I own 1,000 acres in Beaufort County, and here are my taxes, they are going to accept it.

There wasn't any affirmative exercise of South Carolina--

Unknown Speaker: I don't think so.

I don't think the clerk in Fairfax County here would accept a deed to Maryland land for filing.

Mr. Barmeyer: --If it was in--

Unknown Speaker: I don't think so at all.

Mr. Barmeyer: --If it said it was in Virginia.

If the deed on its face said it was in Virginia, I submit they would record it.

Unknown Speaker: I don't think so, but maybe... maybe the clerks aren't as quick there, but--

Mr. Barmeyer: In South Carolina they recorded it.

Unknown Speaker: --I think our Fairfax county clerks would know that--

--Did Georgia ever try to collect any taxes on either?

Mr. Barmeyer: Taxes were paid in Georgia in the early 19th century: 1825, 1830 and 1831.

Unknown Speaker: Well, when last did they try to collect them?

Mr. Barmeyer: In 1831 taxes were received and accepted.

Unknown Speaker: Well, does that have any significance to us, to this case, now?

Mr. Barmeyer: Well, I think all of these facts have significance, but what the Court does is take all of them and determine is there enough to say that there was a general--

Unknown Speaker: Well, I don't know of anything more important to a state government than taxes.

Mr. Barmeyer: --Taxes are key, but I would point out that the way these lands were reported for taxes in South Carolina was I am Charlotte Barnwell, I tell the tax collector I own 152 acres, and I pay the tax on it.

There is nothing on the tax records--

Unknown Speaker: Well, is there any place... is there any other Georgia land that pays taxes to South Carolina?

Mr. Barmeyer: --There may well be, Your Honor.

At least until the 20th century and the '60s, when the clerks were able to get these photogrammetric tax maps where you could really superimpose the property boundaries on the land, in Georgia and other states that were not granted, and South Carolina, that were granted randomly with irregular parcels, there wasn't a chart that somebody could go to to see whether or not this township, this range, whether or not the land had been granted, whether or not taxes had been paid.

I think it's key that South Carolina did not even know of the grant by South Carolina to this land.

Unknown Speaker: How do you get to the Special Master's findings of historical facts on deference?

What should be our standard?

Clearly erroneous, or do we de novo, look at all this record and make our own findings, or what?

Mr. Barmeyer: Your cases have said that the Master's findings are entitled to a tacit presumption of correctness.

But the role of the Court is to make a de novo review, an independent review of the record, and to assure itself that a correct decision has been made.

Unknown Speaker: Well, I suppose if we accepted all of his historical facts there would still be left the question of whether they add up to prescription.

Mr. Barmeyer: Yes, sir, that is correct.

On the--

Unknown Speaker: Thank you, Ms. Barmeyer.

Mr. Barmeyer: --Thank you, Your Honor.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The OYEZ Project

Featured:

Louisiana v. Mississippi - Oral Argument

Thu, 30 Aug 2012 22:15:48 +0000

Case:

Louisiana v. Mississippi

Media File:

86orig_19840116-argument

Related Transcript:

86orig_19840116-argument

Transcript:

ORAL ARGUMENT OF J. I. PALMER, JR., ESQ., ON BEHALF OF PLAINTIFF

Chief Justice Warren E. Burger: We'll hear arguments first this morning in 86 Original, Louisiana against Mississippi and others.

Mr. Palmer, you may proceed whenever you're ready.

J. I. Palmer Jr: Mr. Chief Justice and may it please the Court:

Louisiana and Mississippi once again disagree about the location of our common boundary in the Mississippi River.

In this litigation we're concerned with about a four-mile stretch of the river which is situated approximately three and a half miles north of the Natchez, Mississippi, bridge.

This case is remarkably similar to the one that you decided in 1966, that being No. 14 Original, in that, while the facts are similar, we also have here an oil well which was drilled in 1972 from the Mississippi side of the river and your decision will in large measure determine, among several issues, in which state this oil well is located.

Mississippi has filed exceptions to the report of the Master in this case and they focused on two basic areas: One is the manner in which the Master analyzed the evidence in the case and fashioned his recommendations to you; and the other is the Master's refusal to draw a specific boundary by geodetic coordinates for the entire area in dispute for the time period in dispute, which is essentially 1972 through 1982.

Now, as the Master's report correctly reflects, Your Honors, Louisiana and Mississippi both recognize that the law of the thalweg controls here.

Your landmark decision of Iowa versus Illinois in 1892 announced the basic law of the case, and in 1906 when you decided Louisiana versus Mississippi in the first instance you told both states that the law of the thalweg controls.

So to that extent we agree on the law.

Of course, the thalweg principle has two basic predicates, one being the principles of accretion and avulsion... excuse me, accretion and erosion... and the other being the principles of avulsion.

Now, the Master on page 4 of his report suggests to you both in the text and in footnote number one that this Court now is involved only with the principles of accretion and erosion as they would apply to the so-called live thalweg of the river in this area.

Unidentified Justice: Counsel, what page is footnote number one on?

J. I. Palmer Jr: Page 4, Mr. Justice Rehnquist.

You'll see that the Master asserts in that footnote his presumption that all parties agree that only the live thalweg is at issue here and that, he says, that the sole evidence before this Court relates to that live thalweg.

We say that is a rather bold and erroneous statement of what's in the record before you.

You'll find, first of all, that in Louisiana's complaint, Your Honors, she alleges that the boundary that we're arguing about here was fixed by the law of avulsion as a result of the 1933 Corps of Engineers cut-off of Giles Bend, which is just to the south and constitutes the southern half of this boundary.

Unidentified Justice: Well, that's not inconsistent with the thalweg being live, is it?

J. I. Palmer Jr: Your Honor, we say to the Court that the thalweg or the boundary in this case consists in the upper part of the live thalweg and in the lower part of the so-called dead thalweg in the Giles Bend Cut-Off.

The state boundary must be continuous, and in this particular location, Your Honor, the thalweg proceeds on its live course until it hits the upper terminus of the dead thalweg which was caused by the Corps of Engineers cutoff.

And that's one of the key contentions of Mississippi here, is that Louisiana not only asserted that the law of avulsion is involved here, but both states throughout trial introduced ample evidence to show the location of the old dead thalweg and also how that has been affected by the westwardly movement of the river.

I would call your attention, Your Honor, to the fact that, in addition to the assertions of both states in the pleadings, the very second exhibit which was introduced at trial, which was Joint Exhibit No. 1, is a map depicting several features in 1971.

The surface location of the well on the Mississippi side of the river, the bottom location, and the specific coordinates and position of the 1964 dead thalweg is shown on that very exhibit and described by metes and bounds coordinates.

Additionally, several exhibits introduced by Louisiana at trial show that 1964 dead thalweg.

Now, in questioning by the Master during the course of the trial, the witness at that time said that for the purposes of that present testimony that depiction of the '64 dead thalweg was not then relevant.

But counsel for Louisiana was asked about those drawings; he said that they weren't relevant then, but might become so later.

Unidentified Justice: Well, Mr. Palmer, on reading footnote one of the Master's report to which you refer, he says:

"I take the position of all parties to be that the location of the Louisiana-Mississippi boundary relative to the bottom hole location of the well must be determined by reference to the live thalweg. "

Now, is that an incorrect statement in your view?

J. I. Palmer Jr: Your Honor, the implication or the suggestion of the statement is that all we are concerned about is the location of the boundary with respect to that well, and that we say is the fundamental problem here.

We're concerned about the location of the boundary throughout the area in dispute.

Unidentified Justice: Okay.

But is that a correct statement if you don't draw the implication from it that you do, that with respect to the location of the oil well that it's the live thalweg that is going to govern?

J. I. Palmer Jr: Your Honor, a latitude line drawn through the bottom hole location in an east-west direction would intersect that portion of this boundary which is live.

It would not intersect that portion of the boundary which is part of the dead thalweg.

So to that extent that is a correct statement.

The problem we have, Your Honor, is the suggestion of the footnote, which is consistent with the Master's report to you, that all he wants to do is look at that one point on the boundary.

And we say no, because, as I will mention in a moment, the ownership of this well is but one of the results of this case.

Now--

Unidentified Justice: May I ask, counsel, what is a bottom hole?

Is there a top hole?

J. I. Palmer Jr: --Yes, sir, and that top hole is located in the State of Mississippi on the lands of our Co-Defendants, the Dille family.

The oil well was drilled deviationally, in an angular fashion, under the river.

Unidentified Justice: Sideways?

J. I. Palmer Jr: Yes, sir.

So the bottom hole location is where the plug is at the bottom.

So Your Honors, to the extent that--

Unidentified Justice: What are the concerns other than the well?

I take it that you say the period that you're concerned with ends in 1982, and to the extent the thalweg is live, if you fix the boundary at the end of the period in '82, it would no longer be the boundary anyway, would it?

J. I. Palmer Jr: --It would not be the boundary after 1982.

Unidentified Justice: Tell me, what are your concerns other than the location of the well for the period between '70-whatever it is and '82?

J. I. Palmer Jr: Your Honor, there are several consequences of this case in addition to--

Unidentified Justice: That's what I'm asking you.

J. I. Palmer Jr: --the oil well ownership.

First of all, as we have said, both states have asked that the boundary be drawn, and here are the reasons that we say it's extremely important here.

First of all, Louisiana through its own exhibits in evidence has shown that their recommended boundary falls well to the west of the 1964 dead thalweg.

Now, that taken to be true, Louisiana herself has proved that she has lost land in that time period and Mississippi has gained land in that time period.

Therefore, Mississippi has acquired additional lands over which to assess ad valorem taxes, we have additional lands to exert our police jurisdiction over.

Louisiana conversely, having lost some land, has those drilling units, one of which surrounds this oil well, diminished in scope.

And if we sit here and let Louisiana continue to claim out to a dead thalweg which she herself proves doesn't exist any more, you're talking about giving a state more land than even she has said she's entitled to.

Unidentified Justice: Well, I know, but setting the boundary at the end of '82 wouldn't settle your dispute, would it, because the thalweg isn't there any more.

J. I. Palmer Jr: It's not there, Your Honor.

But let me point out--

Unidentified Justice: The boundary has moved.

I don't know, which way has it moved?

Do you know which way, how it's moved since '82?

J. I. Palmer Jr: --I don't, and that would only be determined through the addition of more testimony.

Let me point out something, though, Your Honor.

The Master in his suggestions to you as a basis for not drawing that line used your precedent, the old ICC case back in 1911 or thereabouts.

Unidentified Justice: Well, I'm still interested in your reasons for wanting the... all of your reasons for wanting the boundary as of '82 fixed all up and down for that four-mile run.

J. I. Palmer Jr: Okay.

There are two more: One, this Court has in the past, and certainly will in the future probably, entertained petitions for the entry of a supplemental decree.

In the event that the evidence shows in the future that the boundary has moved radically to the west, then of course Mississippi would come before you and ask for the entry of a supplemental decree.

The case would be reopened, additional facts would be presented.

Then you would have another determination as of the date of the conclusion of that supplemental hearing.

Now, Your Honor, if we're not going to draw a boundary here, then at that later time we start all over again.

Unidentified Justice: So long as the thalweg is live, you can't draw a metes and bounds boundary.

J. I. Palmer Jr: Your Honor, you can draw the metes and bounds boundary for every year for which you have evidence of its location after--

Unidentified Justice: Well, what's magic about a calendar year?

J. I. Palmer Jr: --It's magic in the sense that we're determining not only the rights between the states, but you must remember there are private Defendants in this litigation, and to that extent in the lower court, in the action that precipitated this very lawsuit, the Dille family has complained of possible drainage of the oil from their land.

Now, that's their private concern.

That's not the concern of the state.

But Your Honors, unless they can prove where that boundary is in this time frame, they cannot make their drainage case.

So they're sitting there, if this Court does not draw the boundary, with a pending case before a lower federal court and they're being told: Okay, prove your boundary... prove your drainage case.

They can't prove it.

Unidentified Justice: Well, can't they get a witness to testify as to which side of the property they're claiming the thalweg is then running or is running at the relevant date for that case?

J. I. Palmer Jr: That is still basically a boundary decision, Your Honor, and Louisiana got this case removed to here because they say this is the only forum for determining that boundary.

Unidentified Justice: But no one doubts the boundary is the live thalweg, do they?

J. I. Palmer Jr: It is live at that one point, Your Honor.

Unidentified Justice: Which is the point at which the Dille family is concerned, I would take it.

J. I. Palmer Jr: Well, that is the one point on their property boundary, Your Honor.

But their boundary is commensurate with the Louisiana boundary for the entirety of their ownership.

So they get one point on their boundary line, but the rest of their boundary is left indeterminate.

What I'm suggesting to you basically as to that question, that if this Court does not draw that boundary and the private Defendants are remanded to the lower court to prove their drainage case and they can't do it, you have the classic situation like the ICC case.

Unidentified Justice: Well, why can't they do it?

Why can't they do it?

J. I. Palmer Jr: Because they attempted to do that and Louisiana said: No, you can't do it at the lower federal level.

Unidentified Justice: Louisiana can't keep them from going into the lower federal court, can they?

J. I. Palmer Jr: They did.

We're here.

Unidentified Justice: Well, I know you're here.

But if we don't determine the dispute... what if we had turned down jurisdiction?

What if we hadn't permitted Louisiana to file?

What would they... just on the grounds that the only real issue involved was who owned that oil well and that was a private matter, essentially.

J. I. Palmer Jr: Which is exactly what we argued in our motion in opposition.

Unidentified Justice: That may be, but suppose we had turned it down?

J. I. Palmer Jr: They would have had to go forward or be out of court.

Unidentified Justice: Well, they certainly could have gone forward with proof.

J. I. Palmer Jr: Yes, sir.

Unidentified Justice: Well--

J. I. Palmer Jr: Of course, this Court had that very same question posed to you in No. 92 Original, Arkansas versus Mississippi, when Arkansas was on the courthouse doorsteps going to trial and backed up and said: Wait a minute, that's not the right forum to determine a boundary dispute.

And you entertained their motion for leave to file.

They did file suit.

The Master suggests that if this oil well weren't involved in this suit you wouldn't have let anybody do it.

But it's already happened in No. 92.

Unidentified Justice: --Well, if we reject your exceptions to the Master's report and accept his report, I take it the location of the bottom hole of this well is fixed, has been determined.

But it certainly wouldn't determine the boundary the rest of the way, and I don't know... I don't know what barrier there would be to the private owners in a lower federal court to have that boundary litigated--

J. I. Palmer Jr: Your Honor, the only problem--

Unidentified Justice: --if they really have a live question about it.

J. I. Palmer Jr: --Your Honor, the only problem with that is that the owner on the Mississippi side is the Dille family.

The owner on the Louisiana side is the State of Louisiana.

Now, if they will concede to try their boundary case in a lower federal court against a citizen of another state, okay.

But they wouldn't do that here, so they removed it to this Court.

This is an unusual case in which the state owns riparian lands.

Unidentified Justice: There isn't exclusive jurisdiction, is there, in this Court just because a state is a party?

J. I. Palmer Jr: No, sir, and we suggested to you originally not to grant leave for that very reason.

Unidentified Justice: I understand, I understand that, I understand that.

J. I. Palmer Jr: Your Honor, we simply say that, since the Court has taken the case, we've tried it, the evidence is before the Court, the Master has labored diligently with several thousand words to describe one picture, why not just have him put his line on those hydrographs?

A suggestion has been made by the Master even before today that, as in the last Louisiana case, No. 14, that someone should be able to just read the report and determine from his reading where the boundary is.

Unfortunately, in that latter case, Your Honors, if you'll refer to the Master's report you'll see there were no hydrographs in that case for any of the years in dispute.

Unidentified Justice: Well, if the thalweg is migrating, you can't get an accurate description of the boundary from the time it takes the surveyors to go out and see where the thalweg is on January 15th until the time they can come and testify before the Master on February 1st.

The boundary may be different between January 15th and February 1st.

J. I. Palmer Jr: Correct.

Your Honor, we are arguing about '72 to '82, not anything after '82.

We're saying that there are material consequences of this determination for that time period, regardless of what happens--

Unidentified Justice: Are you suggesting that there was only one metes and bounds description of the boundary between 1972 and 1982?

J. I. Palmer Jr: --We're suggesting that there is a metes and bounds description for every year for which there is proof upon which a boundary could be determined.

Unidentified Justice: There may be a metes and bounds description for every week that would vary from week to week.

Do you want the Master to go week by week at it over ten years?

J. I. Palmer Jr: Your Honor, we have asked that you do what the Master did in No. 14 and simply have him draw it for every year.

That was done there.

Your own decree recites the metes and bounds description of the state boundary for about a ten-year period at the end of the case.

So to that extent we have the same thing, and yet the Court is being asked to depart from all of that and to do what you've never done before and have a boundary case in which you don't determine a boundary, you just determine one point on it and say, well, this is... Louisiana owns the oil well, forget about it and go home.

Now, it would be like in 92 Original, Arkansas versus Mississippi, just telling Arkansas: Well, you don't own this little piece of land, but we're not going to draw the boundary, so forget about it.

We say there are other consequences besides that.

Of course, we have spent the bulk of those exceptions, Your Honors, as you have seen, developing our factual contentions.

Unidentified Justice: Well, what if the Master, to get back to that, gave you a metes and bounds description of the dead part of the thalweg and then, with respect to the part of the boundary that was covered by a live thalweg, simply described what a thalweg is, the deepest point of the channel and so forth, and gave no metes and bounds.

Would that satisfy you?

J. I. Palmer Jr: Your Honor, in Nebraska versus Iowa this Court plainly said that when you're talking about a boundary and the law of avulsion, which is what you're talking about with that dead thalweg, that that thalweg remains fixed unless and until the river comes back and reoccupies it.

And we've shown that this has happened in this case.

Unidentified Justice: Okay.

But I say if the Master had given you a metes and bounds description of the dead part of the thalweg and then had gone on to say that above that, if it is above that, the boundary is the live thalweg from point so and so, whatever it is, latitude to point so and so latitude, so that you could figure out what part of the river was covered by the live thalweg, would that satisfy you?

J. I. Palmer Jr: Well, it would be better than what's recommended, to the extent that we at least have a portrayal of the southern part of those drilling units on the Louisiana side.

But you then still leave a floating line north of that point, Your Honor.

If the Master is going to determine the point of intersection of the dead and the live thalwegs and another point on the live boundary, we still don't see the great difficulty in his going ahead and just simply drawing his line that he described to you in the book and having some competent surveyor go pick the coordinates off of it.

The difficulty is just not there.

We just don't understand--

Unidentified Justice: Well, but the utility isn't there, either, because the line could change next week.

J. I. Palmer Jr: --It could.

I go back again to what this Court has done before in these types of cases in which you have a completed time span for the controversy.

You still have not refused to give the states the portrayal of the boundary that was in issue.

Unidentified Justice: Well, what dispute?

Just tell me more concretely, what dispute is there between you and the State of Louisiana any time from '72 to '82 about anything except the location of the bottom hole of this well?

Just give me a concrete example, what kind of a claim is there between the two states?

J. I. Palmer Jr: There is no claim as between the two states except as they bear directly on taxation of those--

Unidentified Justice: Well, just give me an example.

Are you trying to tax something that Louisiana says you can't during those ten years?

J. I. Palmer Jr: --There's been no claim made of that.

Unidentified Justice: Well, what other kind of a concrete claim is there between you and Louisiana during those ten years?

Just give me a concrete example.

Or what could be a dispute between you and Louisiana during those ten years?

J. I. Palmer Jr: Okay.

I think the basic contention would be, Your Honor, where the jurisdictions of the two states go--

Unidentified Justice: Well, what difference does it make for those ten years?

J. I. Palmer Jr: --Well, as I mentioned a minute ago, it certainly would affect our exercise of police power.

For instance--

Unidentified Justice: Well, all that's all gone now.

You're not going to be exercising any police power now relating to those ten years.

J. I. Palmer Jr: --Well, Your Honor, if the State of Mississippi were to do today what it has not done and establish drilling units on the Mississippi side of that boundary, then where do we draw the line?

Do we draw it consistent with the Louisiana 1964 line or do we say, no, the Master describes a certain indefinite line out in the river, so we're going to use that as the western terminus of our drilling units?

You're going to have an obvious overlap, because there will be no fixing of the boundary.

All those leases which are attached to the complaint show the--

Unidentified Justice: Well, you keep saying "if".

Have you done something like that?

J. I. Palmer Jr: --No, Your Honor.

Unidentified Justice: I think if you had come in to the Special Master and said, look, there's something else besides this well that we're in dispute on, we're about to establish these drilling units here and Louisiana says that they're on their side, I'm sure he would have solved that concrete dispute.

You haven't told me yet what kind of a concrete dispute there is between you and Louisiana, other than this particular well.

J. I. Palmer Jr: Your Honor, my point has been that in the past this Court has not required some major controversy over and beyond the states' sovereignty over these lands as a predicate for granting leave to determine a boundary.

You certainly haven't done it in the past, and after this case was filed again you didn't require that in 92.

Unidentified Justice: Well, that may be so.

But you think just because two states want their boundary determined as of any particular... say that they come in and say, we just want our boundary fixed as of the time the evidence is closed, as of that very time; that you have the sovereign right to have that boundary fixed?

J. I. Palmer Jr: That certainly has--

Unidentified Justice: No matter what.

J. I. Palmer Jr: --That certainly has been what you have done in the past, Your Honor.

Unidentified Justice: Well, that may be true.

J. I. Palmer Jr: And if the Court wants to depart from that, so be it.

Unidentified Justice: But you would say really that you can have a Special Master and use this Court's original jurisdiction basically in the capacity of a surveyor; that both parties can agree that the thalweg of the Mississippi River is the boundary, there's no argument about accretion versus avulsion or that, you know, that there was an oxbow cutoff or something like that, but that nonetheless the Master is employed simply to plot the position of a live thalweg as of say January 15th, 1982, around the Natchez Bridge?

Now, I'm not suggesting that's a ridiculous condition.

Maybe you're right, that we've done it in the past.

J. I. Palmer Jr: I think the Court is going to require that the states with some definition describe this disputed area in terms of miles or land size or whatever.

But I'm just saying that in the past there has been no more predicate other than to say, we don't agree where our boundary is, we want this Court to use its original jurisdiction to fix it, and let the chips fall where they may.

That's what has been done before.

We're asking you to do that now, and yet we're getting into a flip-flop situation where the Master is saying: Forget about all that; we'll just tell you where the bottom hole is and you don't worry about the location of your boundary.

We say the consequences are far too great just to go off on that, particularly when you've got it all done before you, the evidence is all in.

And on the form of the evidence, I'm not going to belabor in great detail what we have set out in detail in our report to you.

Unidentified Justice: Mr. Palmer, just as a practical matter, how much... forgetting avulsion for the moment, because then a boundary can really change rapidly.

But if it's just a matter of erosion and accretion, in a year how much, over those ten years how much in your judgment did the river ever change in a year?

At any point, how much east and west did the boundary change in a year?

J. I. Palmer Jr: As I recall, from bits of the testimony, Your Honor, in one or two years the Mississippi witness contended the boundary moved as much as 200 feet or thereabouts.

I think the record will substantiate that there was movement of at least that much.

Unidentified Justice: But that's probably the maximum that it's ever moved, that it's moved at any point in any year?

J. I. Palmer Jr: I wouldn't say that that's the maximum.

I know that historically there have been movements of the banks of over 2,000 feet a year.

That's from my personal knowledge.

And that was testified to in this case about the massive movement--

Unidentified Justice: That may not have much to do with the thalweg?

J. I. Palmer Jr: --It may well not, but to suspect that that time of movement of the top bank would cause no movement of the thalweg we think is unreasonable.

Unidentified Justice: Yes.

J. I. Palmer Jr: But to the point of the basic evidentiary problems here, the thalweg doctrine is based on navigation.

The rule there is where does downstream traffic go.

We're talking about quarter mile long tows, not rowboats and sailboats, and that's why I think the Master's conclusions are erroneous in light of the evidence, and particularly in light of the experience of the witnesses that testified.

Chief Justice Warren E. Burger: Mr. Kimmel.

ORAL ARGUMENT OF DAVID C. KIMMEL, ESQ. ON BEHALF OF DEFENDANTS

David C. Kimmel: Mr. Chief Justice and may it please the Court:

Louisiana and Mississippi have been litigating this case some three years and we've agreed on a lot that has transpired in this case.

The two states as well as Mr. Dille, the riparian landowner, have agreed on the bottom hole location.

We all know where that is on a particular map.

We have agreed on the law that applies to this particular case.

And the two states as well as Mr. Dille have also agreed on most of the documents that have been introduced.

Hydrographic surveys are identical for both states.

The only evidentiary issue is the interpretation of those particular documents by the experts.

Mississippi--

Unidentified Justice: In terms of where the thalweg is.

David C. Kimmel: --In terms of where the thalweg is, the live thalweg.

And that was the week-long case and the basis of it.

Mississippi's witness, Mr. Austin Smith, his analysis of those particular documents was completely disregarded by the Special Master, and there are various reasons for that.

Unidentified Justice: You mean rejected.

David C. Kimmel: Rejected, Your Honor, rejected.

Unidentified Justice: I mean, he didn't--

David C. Kimmel: He considered them.

Unidentified Justice: --He considered them.

David C. Kimmel: That's right.

Mr. Austin Smith did not use or utilize any navigational aids whatsoever, including the lights that a mariner would use to negotiate this particular bend.

Mr. Austin Smith did not utilize the buoys that are placed in the river in this particular point by the Coast Guard.

As a matter of fact, in 1976 he would have his particular vessel running over the buoys, which was brought out in the Special Master's report.

Mr. Smith disregarded a developing point bar... and a point bar is a land mass underneath the water which makes a very shallow area... on the Louisiana side directly in proximity to the bottom hole location.

This would tend to throw the river traffic over toward Mississippi, which is what the Special Master found.

Unidentified Justice: Mr. Kimmel, there is discussion in the testimony about breaking down the tow.

Would you tell us what that term means--

David C. Kimmel: Yes, Your Honor.

Unidentified Justice: --and how it's relevant?

David C. Kimmel: Breaking down a tow as you come through a bend means that you are to point your tow downstream.

As you come through the bend, a mariner will see lights, and just above the bottom hole is the Port Gibson light.

That is referred to in the trade as a passing light.

We introduced, Louisiana did, into the record channel reports which were put out by the U.S. Coast Guard every week from soundings taken every day, a recommended navigation course through this bend.

What did the channel reports say?

When you hit that passing light it will be on your right; maintain 200 yards off of that passing light.

That is the recommended course that the U.S. Coast Guard tells the mariners to travel.

Unidentified Justice: Does the Coast Guard speak in terms of right and left on those occasions?

David C. Kimmel: No.

I'm afraid that's the layman in me, Your Honor, saying that.

It's kept on the starboard.

Once past that particular light, the Coast Guard directs the mariners to shoot for Giles Bend Cut-Off light, which is on the Mississippi side, and that is referred to in the trade as a crossing light.

What does the Coast Guard tell the mariner to do at that point?

Position himself in some years 200 years, in some years 300 yards, off of that particular light.

Once there, he is to break down and go towards the next light, which will then be on the Louisiana side, and that is the Cowpen Island light.

He uses that as a passing light and he continues down the river.

That is the Coast Guard recommended sailing line through this particular bend.

And "breaking down", Your Honor, means to point your tow downstream.

Now, Mr. Smith disregarded these channel reports.

They were not introduced.

He had a problem with locking in, and once his particular thalweg was locked in I'm assuming it would run up on the shore and he would still say that's the way it would have to go.

It was surprising the way he treated the channel buoys, especially in '76, where he would have his vessel run over these buoys.

He says they were off course, but it doesn't make any sense only because they would not be charted off course, and they show up on the hydrographic surveys.

Now, as far as Louisiana's witnesses are concerned, Mr. Hatley Harrison used his analysis of the hydrographic surveys, he used his analysis of the channel reports, he used his analysis of the flood control and navigation map number 38, which is put out by the Mississippi River Commission.

And he took particular note of the navigational aids in order to determine his particular thalweg, which was accepted by the Special Master.

Unidentified Justice: Now, Mr. Kimmel, you say "his particular thalweg".

Do you think the evidence is in the record sufficient to actually determine the boundary up and down the river for each year?

David C. Kimmel: I do, Your Honor.

As far as Mr. Harrison's exhibits in the record, you could actually determine a boundary.

But--

Unidentified Justice: For each year?

David C. Kimmel: --For each year.

Unidentified Justice: Not only '82, but for each year.

David C. Kimmel: For '72 to '82.

But Your Honor, let me address that for just a second.

My point is why.

This area is a live thalweg.

You put a line on a piece of paper today; tomorrow it's gone.

We can go back to 1972, sure, and draw a particular boundary.

The day after, that 1972 boundary that's been drawn by this Court is gone.

Unidentified Justice: But if the thalweg's been moving west during these ten years, or at least if in part of this stretch it's been moving west, Louisiana's been losing land to Mississippi, and you may not know how much.

If you set the boundary in '82, June 1, '82, the thalweg probably isn't there any more.

But if it's been moving west, you've been losing some more land.

David C. Kimmel: That's quite possible, Your Honor.

Unidentified Justice: But at least you would know, if you fixed the boundary in '82, at least you'd know as of that date what land Mississippi could tax as compared to Louisiana.

David C. Kimmel: Yes, I would have to agree with that, Your Honor.

Unidentified Justice: If so, why shouldn't... I would think you can never keep up with this problem, but at least you can chase it.

David C. Kimmel: Louisiana's been chasing these particular problems for many years, Your Honor.

And Louisiana--

Unidentified Justice: So has Mississippi.

David C. Kimmel: --So has Mississippi.

And we find ourselves in the position of really, if the Special Master is required by the Court to put a pencil to the paper and draw a boundary, Louisiana really has no objection to that.

We understand what the problem is when one tries to draw a boundary which is completely ambulatory.

We understand that problem.

Most of the cases, if not all of them, deal with the dead thalweg issue, where you can set a boundary on a piece of paper and it's going to stay.

In this case we don't have that at all for any year and we won't have it for the future, because that boundary is going to move.

But I would have to agree with Your Honor that in 1982 if we actually were to draw a boundary we would then know approximately--

Unidentified Justice: Well, if you drew it you'd probably know, at least on some stretches of the river, there'd be some land, there'd be some land in Mississippi that wasn't there in 1960.

David C. Kimmel: --Yes, sir, that's possibly correct.

Unidentified Justice: Well, you know it's correct.

David C. Kimmel: Yes.

Unidentified Justice: And I don't know... I would think it would be... it might be helpful.

David C. Kimmel: The only real issue in this case... and I doubt whether suit would have ever been filed had it not been for the ownership of this particular bottom hole of this well.

In this particular area Mississippi and Louisiana have gotten along fine.

We haven't had any boundary problems.

This suit came about... the genesis of this suit was ownership.

Unidentified Justice: Just because it hasn't made much difference where the boundary is.

David C. Kimmel: That's right.

But the ownership of the well is the underlying issue and, as the Special Master determined, since he finds that the thalweg has not moved to such an extent to place the well in Mississippi, in his opinion it's a vain and useless act to go back and draw the boundaries.

Unidentified Justice: But that's treating this as if it were a quiet title action and you simply rule, in this case rule for the Plaintiff or rule for the Defendant and, you know, say that's all I need to decide, because you're talking about who owns this land and I've now decided that, whereas perhaps the concept of original jurisdiction is a broader thing, that you ought to do something by way of deciding the actual location of the boundary line.

David C. Kimmel: To which we agree, Your Honor.

Louisiana again finds itself in a position of, if we actually have a boundary drawn on a piece of paper, we have no literal objection to that.

Frankly, when we originally filed suit we sued as a boundary action.

Unidentified Justice: Yes, you certainly did.

You're the one who wanted the boundary.

David C. Kimmel: Understanding, of course, that the live thalweg, the problems incidental in establishing--

Unidentified Justice: Well, Mr. Kimmel, would there have to be more evidence taken to draw a boundary?

David C. Kimmel: --No, sir.

No, sir, absolutely not.

Unidentified Justice: And what kind of a skill would it take to look at these hydrographs and draw that boundary?

David C. Kimmel: It would just take an engineer or a surveyor in plotting a particular line on a map.

Unidentified Justice: Depending on what expert you believed.

David C. Kimmel: That's right, or depending--

Unidentified Justice: If the Master says, look, believe this expert and don't believe that one--

David C. Kimmel: --That's right.

Unidentified Justice: --he could draw it?

David C. Kimmel: That's right.

It can be drawn.

It can be done and it can be accomplished.

Unidentified Justice: Is your typical hydrograph in evidence dated?

David C. Kimmel: Yes, sir, the hydrographic surveys are dated, yes, sir, for each individual year.

Unidentified Justice: So then the Master could presumably, taking the relevant sets of hydrographic... of hydrographs of a given date, the ones which he credited, could as of that date determine what the metes and bounds of the thalweg was?

David C. Kimmel: Yes, sir, that's correct, that is correct.

Unidentified Justice: Well, the hydrographs are the same for both sides, aren't they?

David C. Kimmel: Yes, sir, the hydrographs--

Unidentified Justice: It's just a question of an expert interpretation of those hydrographs, and the Master has indicated which expert he believes.

David C. Kimmel: --Experts, yes, sir.

Unidentified Justice: Experts.

David C. Kimmel: Yes.

Unidentified Justice: He believed yours.

David C. Kimmel: Right, that's correct.

Unidentified Justice: So I guess you wouldn't object to having it drawn.

David C. Kimmel: We're not putting up a strong argument over that.

Unidentified Justice: Mr. Kimmel, does the live thalweg have to connect with the dead thalweg at each end?

David C. Kimmel: In my opinion it does not, Your Honor.

Unidentified Justice: Do both parties agree, then, on that--

David C. Kimmel: No, ma'am.

Unidentified Justice: --or is that an outstanding legal issue?

David C. Kimmel: If there's a legal issue involved in that, I don't know what it is, because the boundary... in my opinion the boundary does not have to connect.

Mississippi asserts that the boundary needs to be continuous, but if that were the case then this live thalweg would have to go all the way up to the beginning of the state of Mississippi and Louisiana in the river.

We don't have a continuous boundary with Mississippi in the river that's ever been determined.

Unidentified Justice: Well then, maybe you're wrong in thinking that the lower thalweg is dead.

David C. Kimmel: No, sir, the lower thalweg is dead as a result of a cutoff.

This is a cutoff, Your Honor, and what has happened is the cutoff area dries up and forms a dead thalweg.

It can be determined by engineers, and once that's been done that is set.

Unidentified Justice: Well, if the Act admitting Mississippi to the Union provides that the boundary shall be such and such, or the Act admitting Louisiana, I dare say neither of those acts contemplated an interrupted boundary.

David C. Kimmel: No, sir, they did not contemplate--

Unidentified Justice: Then how could it subsequently have become interrupted, given the law of avulsion and accretion?

David C. Kimmel: --It is not technically interrupted, Your Honor.

It's just that it has not been determined.

As I mentioned, Louisiana and Mississippi have a common boundary, the main navigational channel, throughout the entire stretch of the Mississippi River.

But it has not been determined.

The two states have talked about this for 50 years and we've tried to get together to determine a boundary and put it to a piece of paper, and it just can't be done.

Unidentified Justice: But a minute ago you said you thought the boundary didn't have to be continuous.

David C. Kimmel: It does not.

Unidentified Justice: It can't be if--

David C. Kimmel: Well, it does not have to be determined.

It need to be continuous.

It needs to be continuous in the sense that you can't have a piece of boundary that has disappeared.

Unidentified Justice: --No.

David C. Kimmel: That's true.

But it does not need to be determined.

In this case that issue, the connection of that boundary to the dead thalweg, is really irrelevant because all that needs to be determined is the boundary in the vicinity of the well.

Unidentified Justice: Well, is that all that Louisiana prayed for in its complaint?

David C. Kimmel: Yes, sir.

We asked for a boundary to be determined in that particular area, disputed area.

We did also include an allegation concerning the 1964 thalweg, and the reason we did that was because when we filed the suit we were not sure whether or not that 1964 dead thalweg would be an issue in the case.

As it turned cut through discovery and depositions, that particular thalweg was not an issue in the case and the entire case can be disposed of by the determination of a live boundary in the vicinity of the well.

Unidentified Justice: Well, Mr. Kimmel, isn't discontinuous boundary, isn't that problem just inherent in the concept of avulsion on the one hand--

David C. Kimmel: Yes, Your Honor, it is.

Unidentified Justice: --and erosion and accretion on the other?

David C. Kimmel: Yes, sir.

Yes, sir.

Unidentified Justice: Because when there's an avulsion, if you say, if the law is the line is fixed, then the river's running someplace else.

David C. Kimmel: Yes, sir, that's correct.

The river has sinuosity throughout this particular area that has driven both states crazy at times as it snakes around the Delta.

That's a problem, that's correct, sir.

Unidentified Justice: Well, is there enough evidence that would permit the Master without taking any more to connect the live thalweg with the dead?

David C. Kimmel: No, Your Honor, there is not.

There is not.

Unidentified Justice: There is only enough evidence to permit the drawing of the thalweg as of given dates in time within a range of the live thalweg?

David C. Kimmel: Yes, Your Honor, that's correct.

And Louisiana submits that's the issue in the case.

The connection to the dead thalweg is not an issue in the case, is our submission.

Unidentified Justice: The states must have had some experience with this in the past, on avulsions and accretions, and where the dead thalweg ends and the live thalweg begins.

I would always... I would think that would be not a new problem.

David C. Kimmel: It's not... Your Honor, it is not a new problem, especially for Louisiana.

Now, I don't know, Mississippi law may be different than Louisiana's--

Unidentified Justice: Mr. Kimmel go ahead and finish your answer.

David C. Kimmel: --But it is not a new problem and the state is familiar with the dead thalweg issues.

Our only point is, in this particular case for the Court to dispose of this case and accept the Special Master's report the connection of the live thalweg to the dead thalweg is totally irrelevant in this case.

Unidentified Justice: Well, Mr. Kimmel, does the concept of a discontinuous boundary, which apparently makes sense to my brother Justice White, make any sense to you?

David C. Kimmel: The only way it makes sense, Your Honor, is that in order... to connect to the 1964 thalweg is just not necessary.

All this Court needs to do is to determine the live thalweg in the vicinity of that particular well.

There is no reason... the states of Louisiana and Mississippi are not fighting over any connection between the live thalweg and the dead thalweg of this river.

There was no real testimony taken in that regard.

And all the two states tried for a week was the live thalweg issue and the bottom hole, and that basically is Louisiana's contentions, that a boundary would be a vain and useless thing for the Court to draw, and also that the Special Master's report, his acceptance of Hatley Harrison's testimony, as well as Mr. Leo Odom's testimony and his determination that the bottom hole of this well has remained in Louisiana for all the years in dispute, be accepted by this Court.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Palmer?

REBUTTAL ARGUMENT OF J.I. PALMER, JR., ESQ. ON BEHALF OF PLAINTIFF

J. I. Palmer Jr: Yes, Your Honor, several points that the Court very perceptively raised just a moment ago.

First of all, regarding the connection between the live and the dead thalweg.

I addressed that initially and pointed out to the Court, in response to your question, Justice O'Connor, there is indeed ample evidence in this record of where that dead thalweg is.

It is described by metes and bounds coordinates on the very second exhibit that was even introduced at trial.

Mr. Austin Smith, the expert for Mississippi, described in detail how a continuous state boundary, which must not have a hiatus, is connected between live and dead thalwegs, and the exhibits are there for this Court to use.

Unidentified Justice: But the connection between the live and the dead I would think in many occasions couldn't possibly be completely in the river.

J. I. Palmer Jr: Your Honor, the upper terminus of a dead thalweg is fixed at a point in time, generally, according to the rules of this Court, when there is no flow in that dead channel.

At that point it's fixed geodetically.

Unidentified Justice: Right.

J. I. Palmer Jr: Now, there is an accepted engineering technique for connecting that upper terminus to the migrating live terminus.

That's fully discussed in the record by Mr. Smith.

You draw a perpendicular line from the live thalweg to the upper terminus of the dead.

Unidentified Justice: Right.

J. I. Palmer Jr: That was done here in this case.

It's even shown in the Louisiana--

Unidentified Justice: That's by your witness?

J. I. Palmer Jr: --It was discussed by our witness.

But Your Honor, the very exhibits to Louisiana's complaint show the pictorial of their drilling units, and they're key to the dead thalweg.

It's there in black and white.

Unidentified Justice: Unless you've got your dead thalweg in a concrete-lined canal, the point at which the live thalweg goes into the dead thalweg is going to migrate, too, is it not?

J. I. Palmer Jr: The point of connection between the live and the dead is going to be fixed.

But the connection between the live thalweg and that perpendicular line connecting it to the dead will migrate, Your Honor.

Unidentified Justice: Yes.

J. I. Palmer Jr: That's the way it's done.

Unidentified Justice: And so part of that perpendicular line is going to be... may very well be going over dry land.

J. I. Palmer Jr: It could, but that would be highly unlikely, Your Honor.

Quickly, the--

Unidentified Justice: May I ask you one question?

J. I. Palmer Jr: --Yes, Your Honor.

Unidentified Justice: Your client, of course, was the Defendant in the case.

J. I. Palmer Jr: I beg your pardon?

Unidentified Justice: Your client, the State of Mississippi, was the Defendant in the case.

J. I. Palmer Jr: Yes, sir.

Unidentified Justice: Did you file any kind of a counterclaim or prayer for any kind of relief, affirmative relief?

J. I. Palmer Jr: We did not, Your Honor.

We set up our defenses as affirmative defenses and did not file a counterclaim in this case, as we did in No. 92.

Unidentified Justice: Did your affirmative defenses pray for a declaration of the boundary?

J. I. Palmer Jr: Yes, sir.

Yes, sir.

Now, the contentions of our expert witness, we've set those out in our exceptions and the bottom line is this: We put on a witness who has now spent over 50 years of work in that river, over 40 of which was in the federal service with the U.S. Corps of Engineers, 10 of which was as Chief of the Navigation and Mapping Branch of the Corps of Engineers Mississippi River Commission.

To assert in the face of a 450-page record... and I won't cite all the times he did discuss it... that he didn't use navigational aids is ludicrous.

And second, if you'll just look at the October 1976 and the May 1977 hydrographs, you'll see why the line was deliberately drawn through some off-station buoys.

The '77 hydrograph shows the proper location of those buoys and Louisiana's own expert witness drew his so-called geological thalweg, which is through the deepest part of the channels, right through those same buoys.

You don't put a shallow water buoy in deep water.

They're off station and the witness testified to that.

Mr. Justice Rehnquist, you're absolutely right, if this Court does not draw a boundary you have no more than a quiet title action.

Unidentified Justice: Well, let me ask you.

If you're connecting, say, the north end of the dead thalweg here with the southern end of the live thalweg in the area in dispute, you say the lines are there, but connecting those two points would not be in the current live thalweg?

J. I. Palmer Jr: That's correct, because by definition the terminus of the southern end would be the live thalweg.

Unidentified Justice: Exactly.

And it has migrated.

J. I. Palmer Jr: Yes, sir.

Unidentified Justice: And so you have... the boundary line would be traversing a section of the stream that wouldn't be in the live thalweg.

J. I. Palmer Jr: That's correct, and that's why, as was testified to at trial, the accepted technique is to draw the perpendicular line through the live thalweg.

Unidentified Justice: Perpendicular?

J. I. Palmer Jr: Because on equitable principles--

Unidentified Justice: You mean just perpendicular to the banks there or east and west?

J. I. Palmer Jr: --Perpendicular to the live thalweg.

Unidentified Justice: I see.

J. I. Palmer Jr: As Mr. Smith testified--

Unidentified Justice: So if the live thalweg happens to be running, at that point be running east and west, you draw it north and south?

J. I. Palmer Jr: --It depends on where the upper end of the dead thalweg is, but you could, yes, sir.

Unidentified Justice: Okay.

J. I. Palmer Jr: The point is that if you didn't draw it perpendicularly you would be unfairly favoring one state or the other.

Unidentified Justice: Yes.

J. I. Palmer Jr: The standard of review in this case, as the Court well knows, is de novo.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.

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Argument of Edward Bradley

Chief Justice Warren E. Burger: We will hear arguments first this morning in number 64 original the State of New Hampshire against the State of Maine.

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

Mr. Edward Bradley: Mr. Chief Justice and may it please the Court.

This is a dispute between the States of Maine and New Hampshire over the location of their lateral marine boundary in the Piscataqua River and Gosport Harbor in the intervening marine area.

The legal issue in this case is the proper interpretation of the 1740 boundary decree of the King of England, which describes the boundary in these areas.

Maine’s original interpretation of the decree was an extended thalweg line in Piscataqua Harbor and Gosport Harbor intersecting and intervening marine area.

New Hampshire's original line is a light sun range line connecting four-point to Whaleback light.

It was Maine’s enforcement of its lobster regulations in the intervening marine area between these two lines, which led to regulatory conflict and an attempt to resolve the boundary through boundary commissioners.

This attempt failed.

Subsequent enforcement action led to conflict between enforcement officers of both States and an Executive Moratorium on enforcement to permit New Hampshire to file its complaint in this case.

New Hampshire filed that complaint on June 6, 1973 and a Master, Justice Thomas Clark was appointed on November 5, 1973.

Soon after his appointment, Justice Clark met with counsel for Maine and New Hampshire to urge the States to settle this dispute and to avoid long and disruptive litigation with great expense to the people of both States.

Counsel accepted his recommendation and met to review principles of law, which would determine the location of the boundary and the proper interpretation of the description of 174 decree.

They were able to reach agreement on this and filed a joint motion for consent decree on September 23, 1975.

In February 27, 1975 the stipulated record in support of that joint motion for consent was submitted to the Special Master and the case was finally submitted without oral argument on March 17, 1975.

After reviewing the stipulated record and the consent decree submitted by the States, the Special Master decided that he had to reject the consent decree, because he believed that the Court was without jurisdiction to enter and also, because he felt the geographic middle rather than thalweg was the proper interpretation of the word “middle” in the boundary description.

State of Maine has taken exceptions to both of these determinations, but before discussing our exceptions, I would like to describe to the Court the substantial prejudice, which Special Master’s rejection of the consent decree, adoption of the geographic middle line and also, his failure to hear full argumentations on the issues below has caused to the interest to the State of Maine.

First of course, we have lost to the State of New Hampshire by the Master’s description of a new line.

Over 636 acres of land in the intervening marine area, land which is in dispute between New Hampshire and Maine fishermen, and presents a great emotional issue in both states.

Justice William H. Rehnquist: What is that about, one square mile?

Mr. Edward Bradley: Your Honor, the way I have visualized it is that about 2 ½ times the area between the Capital and the Lincoln Memorial.

Justice William H. Rehnquist: About 640 acres in a square mile are they?

Mr. Edward Bradley: Okay, if that is what it is.

That is my visual reference for, but we do not feel that 636 acres is the --

Unknown Speaker: (Inaudible)

Mr. Edward Bradley: No, we have made no calculation of the area that we may have lost in the harbor.

As much objection as we have for the lost of the 636 acres, we feel that we have been much more greatly prejudiced by the Master’s adoption of an equidistant boundary in the Piscataqua River.

The Master, at page 43 of his report, it indicated that it would not be necessary for purposes of this dispute to delimit that boundary, but because we are going to have to live with it, we have asked the state department, the Office of the Geographer to do a rough approximation of what an equidistant line would look like and they have done it on a map that refers also to the thalweg, which we have just distributed just prior to the argument.

As you can see, it is an extremely irregular line, which will be very, very difficult to mark on the water and will give rise to great opportunities for the kinds of jurisdiction and regulatory conflicts, which gave rise to dispute in this case.

Unknown Speaker: (Inaudible)

Mr. Edward Bradley: Your Honor, it is merely demonstrative, it is not evidence, it would not be the line that you would adopt in a decree or in anything like that, it is just …

Unknown Speaker: (Inaudible)

Mr. Edward Bradley: Your Honor, it was not the consent decree. It was marked by a range lines …

Unknown Speaker: (Inaudible)

Mr. Edward Bradley: It is pretty near that your Honor.

Unknown Speaker: (Inaudible)

Mr. Edward Bradley: In this river it is the channel of …

Unknown Speaker: Is it incredible

Mr. Edward Bradley: It maybe incredible sir …

Unknown Speaker: (Inaudible)

Mr. Edward Bradley: Yes sir and it was based on the …

Unknown Speaker: (Inaudible) that is what you agreed.

Mr. Edward Bradley: Your Honor, it is the main ship channel.

It is the channel that ships actually used.

Yes sir.

Unknown Speaker: (Inaudible) Is there any question in the case, I noticed New Hampshire is not quite happy with our recent (Inaudible) perhaps it was a time of dismay, but New Hampshire Legislature never did agree with the agreement, did it?

Mr. Edward Bradley: No your Honor, there is not.

Unknown Speaker: Is there any question of the validity of the Executive of New Hampshire, or I should ask, (Inaudible) question of state law, may have been in agreement of this kind without full legislature?

Mr. Edward Bradley: Your Honor, the position of the State of Maine is that is not an agreement it is merely a suggested judicial resolution, which the Special Master had the power to enter, as the proper exercise of the original jurisdiction.

Justice William H. Rehnquist: It depends, it is not upon the consent of both states.

Mr. Edward Bradley: Your Honor, it is not a consent to which both States were bound, as we have seen by the actions and behaviors in the State of New Hampshire in this case to date and neither state is felt bound to enforce it against their citizens or citizens of other States.

It had no binding effect until it was adopted by the Court and entered.

And, this is really our response to one of the suggestions that the Special Master has made.

Justice William H. Rehnquist: In case of the land, whatever you call it, the center or what -- Jointly submitted by the two States?

Mr. Edward Bradley: It is a …

Justice William H. Rehnquist: You have that still?

Mr. Edward Bradley: It is a line, which the New Hampshire legislature does not agree with and never agreed with it.

Neither State could agree with it to the political process.

The counsel for both States, the Attorney General's Office made a determination that this was the appropriate interpretation to legal principles of the decree and suggested it to the Special Master.

They have not indicated that they do not agree with it, they have just found the answers that the Master’s reasons for rejecting it unanswerable.

I do not take it that it means that they are rejecting it.

They are just finding that if he is correct that they would assert a different line in this case.

That is if he is correct about rejecting thalweg and the lack of jurisdiction of the Court that they would have him apply the principles differently to obtain a different line, but made no statements about whether they rejected the consent decree.

Chief Justice Warren E. Burger: Is the ship channel that you referred to, is it an artificial channel that has been dredged out?

Mr. Edward Bradley: I really do not know the answer you Honor.

I believe that it is the natural …

Chief Justice Warren E. Burger: (Inaudible)

Mr. Edward Bradley: It is marked by Bowee Gosport Harbor, it is marked by the range lines in Piscataqua River, which are lights connecting, so that Mariners can determine whether they are on the main channel, as they came in to the river.

Justice William H. Rehnquist: Is there any authority from this Court as to whether a proposed consent decree needs the ratification of the legislative branches of the two States?

Mr. Edward Bradley: Yes your Honor.

I believe that there is.

I feel that the case of Virginia versus Tennessee.

It is determined that not all compacts and agreements require legislative approval and that only when the parties have done everything they can to bind themselves to an agreement that legislative approval is required.

Justice William H. Rehnquist: That is congressional approval …

Mr. Edward Bradley: I am sorry …

Justice William H. Rehnquist: I was thinking, in terms of what sort of authorization do counsel representing two States in an original action of this Court need in order to consent?

Mr. Edward Bradley: I think New Hampshire has answered that in its motion to support the jurisdiction of the Special Master, to enter the consent decree, which was filed with the Special Master and I honestly do not have it in my mind the principles, but they have answered that with respect to their authority and determined at that time that their Attorney General did have authority to enter it.

Chief Justice Warren E. Burger: What if both of the states, the two states entered into the agreement, which you have entered and then move to dismiss the original action by stipulation of both parties, then there would be no original action left, would there?

Mr. Edward Bradley: That is right your Honor.

Chief Justice Warren E. Burger: And, would the terms of that agreement then entered in to between the two States, present problems of enforceability, if citizens of one state or the other elected not to imply with it?

Mr. Edward Bradley: Yes your Honor, I believe …

Chief Justice Warren E. Burger: That is why you want this Court’s action …

Mr. Edward Bradley: Yes your Honor, there is no question that if this agreement was reached outside the context of your exercise of original jurisdiction, that would we have to find congressional approval under Article 1, Section 10 of the Compact Clause.

The point that I started to make with Justice Rehnquist was that the only time that is required, once the original jurisdiction has been exercised is never required once the original jurisdiction has been exercised, because nothing the parties do in the context of the exercise binds them until the Court has exercised its judicial power.

In the case that I cited, Virginia v. Tennessee, 148 US 503, the States of Virginia and Tennessee entered into a preliminary boundary agreements prior to entering into binding boundary agreement and the Court in that case held that all compacts and agreements do not require congressional approval and it is only when the States do something that actually binds themselves independent of the judiciary.

I believe they are outside the context of original jurisdiction that the approval of Congress is required and that is consistent with the reasons the Congressional approval is required in the first place, which was to protect the United States interest against compacts and agreements by the States, which could affect federal interest.

It has been held long time in this Court that the exercise of judicial power is satisfactory substitute for congressional approval, when original jurisdiction is exercised.

And, we believe that the Court has jurisdiction to enter the decree in this case.

Unknown Speaker: (Inaudible) that the legislature is taking on it?

Mr. Edward Bradley: The State of Maine legislature has taken no action.

The State of New Hampshire, both houses, as I understand they have passed concurrent resolutions rejecting the decree, but not passed any law, which is binding on them and that is a matter of their state law, which I …

Unknown Speaker: That means they have done nothing.

Mr. Edward Bradley: Our legislature has done nothing.

Unknown Speaker: If the Special Master had accepted the consent decree would the location of the line have been self evident, would the decree itself, have identified the precise location of the …

Mr. Edward Bradley: Yes your Honor, the decree establishes the location of the thalweg and the termination of the thalweg and the straight line portion of the boundary by latitudes and longitudes.

Unknown Speaker: Mr. Attorney General of New Hampshire, then agreed at one time to the location of the line?

Mr. Edward Bradley: Yes your Honor, in filing that motion for joint judgment, he indicated that “I do not only agree with it, but it was an appropriate application of law and the fact and it was the best interest of the State of New Hampshire at that time.”

Justice William H. Rehnquist: Could you tell me, what legal principle would support this straight line in the Harbor here?

Mr. Edward Bradley: The principle which supports it is the principle of Maine channel or thalweg.

Justice William H. Rehnquist: You do not really suggest that on the ground that is what you would find the thalweg?

You have not even attempted to say where the thalweg is, have you?

You have just agreed where it is.

Mr. Edward Bradley: Your Honor, we have agreed to it, but we have agreed to it by reference to charts, which indicate the depths of the water and I understand …

Justice William H. Rehnquist: There is ought to be a straight line like that.

Mr. Edward Bradley: It turns out to be a relatively straight line.

Unknown Speaker: That is of course that Mainers sail expect.

Mr. Edward Bradley: Yes your Honor, it is definitely the course that Mariners sail.

I have to admit that I honestly do not know that it is exactly the deepest part of the river.

Unknown Speaker: But it does not mean where Mainer’s sail does it?

Thalweg means the deepest part of the channel?

Mr. Edward Bradley: The Main part of the channel.

Justice William H. Rehnquist: Mariners sail, what is safe to sail and if a straight line is more convenient, they sail straight line.

Mr. Edward Bradley: But, the indication that this is the safest place to sail and therefore the deepest is that the largest vessels that come in to the area, stay right on that range line, all the time they are coming in.

They do not deviate from it.

As a matter of fact, in talking to Pilots we have had indications that there is very little room.

Justice William H. Rehnquist: It is deep enough for the largest ships in that line.

Mr. Edward Bradley: Yes, your Honor.

Unknown Speaker: You can conclude that the two parties were mistaken in their agreement that this was indeed a thalweg?

Mr. Edward Bradley: Yes, your Honor.

Unknown Speaker: The fact that you consented to it would not conclude us from saying …

Mr. Edward Bradley: No your Honor, if you decided that …

Unknown Speaker: This was not the thalweg.

Mr. Edward Bradley: The thalweg was the proper principle, but …

Unknown Speaker: The consent agreement should be rejected, if what is to be determined.

The resolution of the boundary dispute is the drawing 15:36.

Mr. Edward Bradley: I would agree that the consent decree should be that the Court would have the power and should not maybe project some consent decree, but they should not accept the Master’s line.

What they should do is send us back for a full determination of the concept of thalweg and where it actually lies on the ground.

This is one of the greatest prejudices to our interest we feel, that we have had, because of the Master’s decision without oral argument.

Justice William H. Rehnquist: (Inaudible) you are going to get the arguing that he adopted their own principle.

Mr. Edward Bradley: Yes, I am, your Honor.

Justice William H. Rehnquist: I mean wholly aside from the consent decree.

Mr. Edward Bradley: Yes, your Honor.

Justice William H. Rehnquist: I mean from the consent itself.

Mr. Edward Bradley: Right, why I am arguing the consent decree is so hard, because the Master has indicated that if you have jurisdiction to enter it, that you should enter it.

And, that he has not felt it necessary to recommend rejection of the thalweg line without regard.

Unknown Speaker: (Inaudible)enter it.

Mr. Edward Bradley: I think you have exercised your original jurisdiction.

Unknown Speaker: Would we not have to agree that this indeed is in law of the thalweg?

Mr. Edward Bradley: You would have jurisdiction, I believe whether you agreed or not.

You could still reject it as an inappropriately application of law of fact with all respect to jurisdiction.

You could reject it certainly for other reasons than the lack of jurisdiction.

Unknown Speaker: Suppose that you concluded that the 1740 or something in history indicated that the thalweg was not the proper basis.

Do you think that the two States by agreement could adopt the thalweg?

Mr. Edward Bradley: No, your Honor.

Not in this … I just think …

Unknown Speaker: (Inaudible) as you might have to reject the consent.

Mr. Edward Bradley: Yes, it might be a reason for rejecting it, you Honor.

The point that we are making in this case is that every indication in the boundary proceedings was the thalweg was meant when the term middle was used.

The Special Master has referred to some of the evidence we referred to in our brief with regard to the use of channel in the Merrimack River and also, with regard to deeds relied on by Massachusetts, which referred to the Channel of Piscataqua.

There are two indications though that were not cited on the brief or referred to by the Special Master, which we think are a strong indication that the term “channel” was meant,-- channel was meant when the term “middle“ was used.

The first of these is the Charter of King Charles II to Rhode Island in 1664 was issued just before the charter that he issued to New Hampshire in 1679.

That charter is described in Rhode Island, Massachusetts at 37 United States 464.

And, in that charter, the King Charles, the persons, who issued one of the boundary determinations that was in the line of title, the boundary commissioners were determining indicated that the definition of “middle” was “channel.”

Thus, when he has describing the location of the boundary between Connecticut and Rhode Island to the South, he indicated that it went to the middle or to the channel of a river there commonly called and known by the name of Pawcatuck.

We think is a contemporaneous indication that thalweg was in vogue and being used at the time the decree was entered.

The Master has seized upon the use of the word “the half” in the New Hampshire's petition for appeal is apparently the strongest basis for adopting geographic middle and we found a passage in Bellmap, history of New Hampshire, which indicates how insignificant the use of the “half” is in the description of that boundary.

Thus, it is clear that the State of New Hampshire in authorizing the appeal did not use the word the “half”.

The only time it was used is by the solicitor for the State of New Hampshire plus someone who had been hired and was in England filing papers before the King’s counsel and a petition for appeal.

The passage in Bellmap, which is very, very short.

I would just like to read, because it describes the relationship between this solicitor in England and New Hampshire's actual intentions and he says, “They obliged us to make bricks without straw, above all why did not they send a copy of their own appeal, for want of it, I have been forced to guess what that appeal was.

From loose passages in Mr. A’s letters.”

So the solicitor, who use the word “the half,” had to guess what New Hampshire is doing back in the colonies.

He did not have any direct information, New Hampshire when he used the word “half.”

We believe that strongly this undercuts the Master’s strong reliance on the use of the word “half” to determine geographic middle.

Unknown Speaker: Will you let us have the page citation for finding that?

Mr. Edward Bradley: I am sorry.

That is page 251 of Bellmap’s History of New Hampshire.

Finally, I like to also note that this use of the word “half” was in the petition for appeal was the second time the New Hampshire used that word.

The first time they used it, they used it with regard to navigational criteria and not criteria based on geometric concepts, such as geographic middle.

Thus, in the boundary proceedings, they indicated that the half of the Isle of Shoals was divided by the Harbor of Rhode, which lay between.

Now, this is a clear reference to navigational use of the area and it is consistent with the use of thalweg or channel in the other portion of the northern boundary and not with the Master’s adoption of a geometric concept to determine the meaning of the word middle.

I would like to reserve the rest of my time for rebuttal.

Chief Justice Warren E. Burger: Very well, Mr. Upton.

Argument of Richard Upton

Mr. Richard Upton: Mr. Chief Justice and may it please the Court.

Before I am going for New Hampshire, I would like first to touch on a sole exception to the Master’s report and then, answer the argument just made by Mr. Bradley regarding the consent decree.

Now, the question of law presented by New Hampshire's sole exception is this, was the Master correct, in ruling that it was proper for him to use low tide elevations, that is rocks protruding only at low tide in Piscataqua River, as points of reference from which to calculate the geographic middle of the river?

And, we argue that this ruling is incorrect, the use of low tide elevation.

Justice William H. Rehnquist: And, you affirmatively support the rest of the Master’s decree?

Mr. Richard Upton: Yes, you Honor.

Justice William H. Rehnquist: Including his decision that the geographic middle is the right division in the river.

Mr. Richard Upton: You Honor that is our position.

Justice William H. Rehnquist: Although it was not?

Mr. Richard Upton: But, the geographic middle, we believe he is correct in this ruling.

But, we think he has located it improperly.

Unknown Speaker: It is a principle or you think that the geographic middle is the right …

Mr. Richard Upton: We do and in my reply brief I have argued the point strongly as I know how with citations to the proceedings of the Boundary Commissioners in the appendix.

So, we have only one complaint with the map …

Unknown Speaker: Is it your position or what is you position?

Do you think that determination would preclude or did preclude the two States from an agreement?

Mr. Richard Upton: I think that.

-- Your Honor, the agreement was based in an entirely different concept of law.

Counsel were dealing then in terms of the thalweg and trying to agree as a matter of convenience.

Unknown Speaker: Having decided that the geographic middle is the correct legal principle historically in this situation, do you think that the states were then, disentitled to agree otherwise?

Mr. Richard Upton: I think, now we got the Master’s findings on that we never tried to agree on this point in our agreement.

We never covered this in our negotiations.

Unknown Speaker: Does the basis for the agreement, falls out, the agreement falls at.

Mr. Richard Upton: Yes, your Honor.

Unknown Speaker: There was not your legislature approval --

Mr. Richard Upton: That is our position.

And so, we argue that he was incorrect in calculating and locating the geographic middle of the river in using these low tide elevations and in particular, a submerged rock of Whaleback Reef.

This is the one thing which distorts the situation so much, because whale back reef is a tiny rock, 1/3 of the way out into the river.

It does not qualify as an island.

It cannot be assimilated to the coast as an island.

Any of the tests this Court has adopted in United States versus Louisiana, 394 US recently, it is a distortion of geography to say that is part of the bank of a river at low tide elevation.

Unknown Speaker: Get the chart which is appended to your exceptions in brief, filed December 23, where are these Whaleback Reef rock?

Mr. Richard Upton: Number three you Honor, the black ink is the Whaleback Reef, Figure 3, just to the left of the line marked, closing line of harbor.

Unknown Speaker: I do not see, but the line does not go from there, though.

Mr. Richard Upton: No, but we are informed that the Master -- see in the footnote on pages 42 and 43 of the Master’s report, bottom of page 42.

The way a median line is calculated it is a ground X of the compass to the nearest points.

He says the significant points in Piscataqua harbor are those low tide elevations and low water lines on either side of the harbor that are nearest to each other.

And, he mentions Whaleback Reef there, that he did use that as a point of reference in calculating the median line.

We say that was error, that particular --

Unknown Speaker: (Inaudible) headlight point.

Mr. Richard Upton: No, you Honor.

He uses it as a point of reference in calculating the median line of the river.

Unknown Speaker: I see, and this chart shows, as I understand, that the difference in the boundary line that would result.

If you are correct.

Mr. Richard Upton: If I am correct.

Yes, your Honor.

As the Court can see …

Unknown Speaker: Points A and B, then.

Mr. Richard Upton: 350 yards, it makes a difference, because it deflects the straight line boundary all the way from there up to the Isle of Shoals, a distance of 6 miles.

The deflection of that line at that point, 350 yards makes a difference of 300 acres to New Hampshire over the whole area.

Unknown Speaker: Are they parallel?

Mr. Richard Upton: No, they are not.

They converge, your Honor at one point at the Isle of Shoals.

It is a long V-shape gore.

Unknown Speaker: Mr. Upton, before you start, since you are interrupted, I am kind of new on this kind of litigation, what is the standard of review that we should apply in deciding how grossly err, the Master must be before we take another look?

Mr. Richard Upton: As I view it, the Master’s report is entitled to a strong presumption of correctness.

Unknown Speaker: It is not enough for you merely to persuade us that he might have done a better job.

Mr. Richard Upton: If he committed an error of law, of course questions of law may always be corrected in this Court.

Unknown Speaker: I did not understand you to contend that it would never in any situation be appropriate to use this projections, low water projections, whatever they are called, or are you just saying that this particular case it is inappropriate.

Mr. Richard Upton: I say your Honor, that it is contrary to any of the precedent in the National law that I have been able to find its contrary to the holdings of all, the writers in this field we have cited in pages 7 to 9 about brief and it is contrary to the holdings of this Court in United States versus Louisiana.

Unknown Speaker: Were those holdings in particular bad situations or do you read those saying as a matter of law, it is never appropriate to use this kind of reference?

Mr. Richard Upton: Your honor, One of the tests they use is that proposed by Mr. Badge, a former geographer of the State Department to draw a parallel lines at the end of each off shore formation to the shore and if the amount of water area between the island or off shore formation and the shore is greater than the off shore formation, then it cannot be assimilated to the shore and used as a point of reference.

Now, in this situation, this is obviously too small and too far to move from the shore to qualify in to that task.

And, I understand that approach is almost a question of law.

Both parties are having their briefs gone farther than to argue, merely the point of whether the measurement should be made from these off shore formations, whether they are properly part of the bank or the river, which one should measure.

And, we have gone into the analogy of various articles of the Geneva Convention of the territorial sea.

Now, we have may complicate matters by doing this, but we feel obliged to go into it, because the Master did and he used it to justify what he had done here.

I think it all stems from Article 12 of the Geneva Convention of 1958, which states that the territorial sea outside of internal waters should be divided between States, whose coastlines are adjacent by Median Line Principle, measured from the nearest points on each State’s base line.

The Masters apparently applied this analogy to internal waters, because we are here in internal waters, inside the closing line of the harbor, whether one looks at it by Maine's standpoint or by New Hampshire’s standpoint, but I urge to the Court that if we ought to apply this analogy of international law to internal waters, it ought to be done with extreme care and with an eye to the real purposes of the convention.

To do it, we have to consider Maine and New Hampshire as foreign states.

Having opposing coastlines on each side of the river, but this is a very narrow river.

It is a little over a mile-and-a-half wide at the mouth and it narrows down as we go further inland.

Now, how would coastal baselines be drawn on each side of the river from which to measure the median line or boundary?

Now, we say that if this analogy is to be followed at all, Article 3 should be used.

That is the normal baseline follows the low water line on the Maine land.

That islands should only be considered part of the shore if they qualify under the tests of the United States versus Louisiana, that is their size and closeness, makes them really an integral part of the Maine land and that the use of low tide elevations that is rocks exposed only at low tide as part of the baseline is optional under International Law and to use these as measuring points in such close waters is apt to create distortion and unequal division waters of the river and that is just what it would do if this happens.

I think it is demonstrated.

At the very least, a low tide elevation should not have more influence than an island, but if the Master is correct, he would be giving it that effect.

And, we say that was his principle error, otherwise we have no objection with his report.

Now, Maine is referred to Article 4 of the Convention, which is an optional method of drawing long straight baselines.

It is optional not mandatory and it was fathered by the decision of the International Court of Justice in the Anglo-Norwegian Fisheries Case in 1951.

It is optional; it applies to the peculiar coastline that was found of Norway with many deeply intended fiords.

It is not appropriate to apply by analogy to closely bounded internal waters and the decision was never accepted by the United States government.

In fact, a law was advocated by California, it was not followed in United States versus California.

And, to use this method and to use Whaleback Reef would cause much more than a 15 percent departure from the general direction of the Maine shore, which was the maximum thought permissible in the Anglo-Norwegian case.

Now, turning to the point that occupied the Court’s attention, when Maine was arguing, the rejection of the motion for entry of judgment by consent, was the master correct in rejecting it?

And, is New Hampshire's present position in support of the Master correct?

We believe the Master gave sound and adequate reasons for recommending rejection of the consent decree and we have not taken any exception to this ruling.

The motion for entry of judgment, by consent, and I took part in it, was an effort by the two States to get a comprised settlement.

Frankly, a compromised settlement approved.

It had to become a judgment of this Court or it would do us no good, because our State had already unilaterally adopted a boundary line in consistent with anything Maine would agree to and our legislature had provided that this shall be the line governing all public offices of New Hampshire unless and until modified by a compact or by judgment of the United States Supreme Court.

Justice William H. Rehnquist: Was that just a resolution by your legislature or was it approved by the Governor?

Mr. Richard Upton: That one, you Honor, was a law, which passed and was approved by the Governor, the one I just quoted.

And, that was passed before we entered in to this compromised agreement and was signed by the Governor and it is quoted in the Appendix to our brief.

Unknown Speaker: Some 200 miles out to sea.

Mr. Richard Upton: That was the next section of that chapter, Your Honor.

Justice William H. Rehnquist: When you entered into the compromised agreement, I take it that those who were acting on behalf of the State of New Hampshire felt it was consistent with that first act of the New Hampshire

Mr. Richard Upton: We felt that it could only be made consistent your Honor, if this Court approved it and adopted it and made it a judgment of this Court and that case it came within the exception of the statute.

Justice William H. Rehnquist: And, of course you do not know whether this Court will approve it or adopt it until you have submitted it to the Master, he in turn has submitted to the Court and this Court has decided one way or the other, I suppose.

Mr. Richard Upton: That is correct your Honor, the matter rests in the hands of this Court at this moment, because you do have the power, I believe if you find that as a law to enter the consent decree.

Unknown Speaker: Well, in a sense, it is like a stipulation, we settle it, personal entry claim where two lawyers get together and agree and they have to submit it to the Court.

So, the matter remains open, until the judge actually approves the stipulation.

Mr. Richard Upton: That is true, although in the case of a personal entry case, the parties have the power to make such a settlement without the intervention of the Court.

They could just …

Unknown Speaker: (Inaudible)

Mr. Richard Upton: In that case, I have to confess it requires the approval of the Court.

Unknown Speaker: Like my brother Rehnquist just suggested -- it is a public interest -- the court just had the problem --

Mr. Richard Upton: This problem always exists and I suppose it exists in a criminal case, where a man pleads guilty and counsel attempted to work out an arrangement as to what the recommendations will be for Senates.

It is placed before the Court.

The Court may or may not accept it.

It may impose a harsher penalty or a lesser penalty, but the matter is in the hands of the Court.

Unknown Speaker: Well, is not there some contract, law, theory that would say neither party has a right to repudiate it during the reasonable time that is taken to go through the steps necessary for judicial approval?

Mr. Richard Upton: Your Honor, I take this to be the position regarding contract that if this is not to become a judgment of this Court, then it must be a compact, which requires the consent of the United States Congress in order to be binding on the States, because this Court is several times held the resolution of boundary disputes between states falls within the Compact Clause.

If the case is not settled by a judgment of this Court, that would be my answer.

This was frankly a compromise, on which we needed the Court’s approval, but at the time we did this, we are unaware of what your Honor’s are going to hold in New York versus Vermont or Vermont versus New York, that decision came down in the summer, at the time these negotiations were going on.

Now, we compromised in these ways.

The thalweg versus the geographical middle, New Hampshire accepted the thalweg and then we further compromised on thalweg by deciding we would agree, it was a straight line.

When in fact of course, it cannot be physically, but for convenience of law enforcement, we agreed that it was the thalweg and that was it.

Secondly, the mouth of the harbor for determining the point, where the thalweg ended, we agreed was a line going from Odion’s point to a submerged rock called, Kitsch rock, which has a whistling boy on it.

This again, was an arbitrary compromise administrative convenience, but it has no relation to law that applies to tell where the harbor’s mouth is.

And finally, we agreed that the line across the open sea would be a straight line, rather than a curved line, as sought by Maine, based on the United States geological survey maps.

And here, the Master has found that we adopted correct law, the straight line is proper under the special circumstances exception of the Geneva Convention.

Now, when the terms of this settlement were proposed to the Master, he told us now he now doubted that he had the power to accept it.

Although he had earlier urged just to settle.

Unknown Speaker: Because of the intervening decision of Vermont against New York.

Mr. Richard Upton: Yes, your Honor.

And, we held a hearing on that, it appeared likely that he might rule to accept it, he might accept it with modifications, he might reject it and call for an evidentiary hearing in full or he might proceed to decide the case, either for New Hampshire or for Maine.

On the record we made far, because when we knew about Vermont versus New York we tried to repair the situation by presenting the Master with a stipulation for an evidentiary record, which is reported in full on pages 2 and 3 of the record.

So, he would have something by which to judge the lawfulness and reasonableness of the stipulation.

Now, he recommended rejection, he thought we were presenting him with a fait accompli which he would merely rubber stamp and which did not call for the exercise of the judicial power, that is applying established principles of law to facts, which either have been stipulated to or settled by the evidence.

He felt that this was not kind of a thing.

He had been presented with something that was not judicial in nature and not proper basis for a judgment.

He then, found that the record we have stipulated to before him, as a basis for deciding the case was sufficient for him to make a decision on the merits without further hearings.

And, he then proceeded to decide, as my brother Bradley has outlined in his opening statement.

Now, we believe that the Master was correct in adopting geographic middle as opposed to thalweg.

We compromised that position in the beginning, in order to obtain what we thought was doubtful that is a straight line across the open sea, which we felt was very important to us.

Unknown Speaker: But, Mr. Upton looking at the consent decree line so called which appears in the appendix to the response of the State of Maine to New Hampshire’s exceptions.

What accounts for line C, E, F, if you have that?

What accounts for the segment on the line CE?

Why was it not drawn from C, which is the thalweg middle all the way to F?

Mr. Richard Upton: E, you Honor was the point we agreed on in the consent decree as being the mouth of the harbor and the end of the thalweg.

Unknown Speaker: Then, what is C doing there?

Mr. Richard Upton: I believe my brother means that C is the line drawn by the Master.

C to D, yes sir.

Unknown Speaker: Yes, but if you look at the appendix, the key of the appendix up in the upper left hand corner.

The consent decree line is denominated as C, E, F.

Mr. Richard Upton: That is right your Honor and the reason that …

Unknown Speaker: Not just CF.

Mr. Richard Upton: CD, as the line found by the Masters.

CEF is the consent decree and we extended the thalweg out to E, which is a point we agreed in the stipulation would be the mouth of the Harbor and then we took off across the C.

Unknown Speaker: I see, so the E is the thalweg, as far as it goes out in the open sea.

Mr. Richard Upton: Yes your Honor, and then we stipulated that would be the mouth of the Harbor by arbitrarily drawing a line from Odion’s point across the Kitsch Rock Whistling Boy that location.

Unknown Speaker: Mr. Upton, how would these areas be identified under the consent decree?

Mr. Richard Upton: As we go out to C and this is where the biggest trouble of enforcement is, your Honor.

We would ask Maine to participate with us in putting range lights on New Castle Island, one behind the others lined up with this line.

And, we have asked the Court to -- Justice Clark has recommended to the Court that a Commissioner be appointed to mark the line, when the report becomes final.

This has been done in most of the boundary cases.

It was done in Vermont versus New Hampshire after the Court had adopted the law and decided how it applied.

A Commissioner was appointed to mark points on land with the agreement with States and we think this would be appropriate here.

Unknown Speaker: This function would have some finite limits in the sense that when he finished marking that would be the end of his job.

Mr. Richard Upton: Yes, your Honor.

Unknown Speaker: It would then require any on-going judicial supervision or enforcement.

Mr. Richard Upton: He would have hardly any discretions, as I see it.

I agree with Your Honor's suggestion

Unknown Speaker: But, for the point of the lobster fishermen, there would be range lights if they could --

Mr. Richard Upton: Those will have much the same effect as the lights on range that the lobster men fought so hard to have.

That is two light houses, one behind the other.

Unknown Speaker: Existing light house just way back.

Mr. Richard Upton: They go way back in history.

Unknown Speaker: And, the claim is that as a matter of practice that has been practically recognized boundary over …

Mr. Richard Upton: That is what the claim is.

So, we ended in to the compromise, realizing that it would have to be approved.

We had Vermont versus New York, we had the stipulated record, we have the Master moving be rejected and we had detailed findings by him that it was the geographic middle rather than the thalweg.

And, we support that ruling, because in reviewing the record of the boundary Commissioners, we find that when they referred to the Merrimack River on the south they always used the words “Middle of the Channel,” or as when they refer to the Piscataqua River on the north they used “Middle of the River,” and New Hampshire Commissioners talked about losing half the river to Maine, then Massachusetts and the Massachusetts Commissioner said that the line was always been in the middle of the river, because those islands nearest to each state have always been taxed by each state.

And, we say that language speaks in terms of geographic middle just as in the case of Texas versus Louisiana, where Your Honors felt that the intent of Congress was directed to the middle of the river, geographic middle rather than the thalweg.

And, we feel this case is equally as strong.

Thalweg was not in vogue, as a tool of interpretation in 1740.

Also, we went then under British Colonial rule, where there was freedom of navigation to all British subjects, including colonists.

There was obstruction freedom of navigation, which is one of the things that makes thalweg applicable.

I have not touched on the lights on range argument of the Amicus Curiae because there is no exception before the Court raising that question, but if the Court is interested in considering it, there is an apt quotation in United States versus Louisiana 394 US at page 76.

“The unauthorized acts of private citizens could generally not support a claim of historic title.”

And so in conclusion, we submit the Master’s report should be confirmed with the exception that the Court should hold it was error to use these low tide elevations.

Unknown Speaker: We would agree with you.

Would that mean in respect to relocating the geographic middle?

Mr. Richard Upton: I believe on that issue, the case should be referred back for findings.

Justice William H. Rehnquist: How do you think it would affect it, how about for example the center point of the mouth of the harbor, where would it move to?

How far it would move do you know?

Mr. Richard Upton: It makes a difference of 350 yards, Your Honor, whichever view was adopted and …

Unknown Speaker: It links to your exceptions of brief right?

Mr. Richard Upton: We would gain or lose 300 acres, depending on the result.

Unknown Speaker: There is a long way you were telling me about it.

Mr. Richard Upton: Yes, your Honor.

Unknown Speaker: Just one more question before you sit down.

As I understand your brief, you in part argue that the Master did not adequately consider the low tide elevation point.

Do you make arguments before us that you did not make before him?

Did he have the same chance to praise these issues you are asking us to do?

Mr. Richard Upton: He brought this up for the first time and in his report, this was not argued by the parties or suggested by him that he might consider it.

Unknown Speaker: Did you take exception to the procedure you followed.

Mr. Richard Upton: No I do not object, I object to his ruling.

Unknown Speaker: My brother Stewart's ruling.

Mr. Richard Upton: They do, certainly.

Unknown Speaker: You do not take (Inaudible)

Mr. Richard Upton: I do not object to it, because I think we are protected and I think the Court can refer it back to a hearing at this one point if it so decides.

Rebuttal of Edward Bradley

Mr. Edward Bradley: I would like to refer briefly to the questions that were raised with respect to whether a factual determination is required in determining whether these low tide elevations, the Special Master used qualified for the test under the Geneva Convention.

The arguments that my brother Upton has made are that this is not an island, a low tide elevation within the meaning of island part of the Maine land.

These kinds of questions have given rise to substantial evidentiary hearings in cases in Louisiana.

An opportunity which the State of Maine or the State of New Hampshire had, because of the way this came up to this Court.

This is a problem in another regard.

The Special Master, we believe has seriously prejudiced a right of the State of Maine that exists outside the issues in this dispute.

Thus, the Master found it was essential to determine where the location of inland waters was, because he felt this Court in US may determine that there was no ownership in the intervening area between Gosport Harbor and Piscataqua.

But, we believe that this is inconsistent with the reservation of jurisdiction, which this Court has exercised at 421 US 958 in granting the motion of the United States government to reserve its jurisdiction to determine questions just to this nature.

State of Maine has an historic inland water claim and other coastline claims, which would give its sovereignty over the area between Piscatqua Harbor and Gosport Harbor and we believe that we should have the opportunity to be permitted to apply the criteria that the Courts announced in dealing with similar claims States of Alaska, Florida and Louisiana in just last term.

The Master’s determination has precluded us from doing that and we do not even know he was doing it, until a report came out.

We did not in choosing thalweg, in choosing straight line portion of the boundary think that we needed to determine the extent of inland waters, which is why the questions, which the Master has focused so strongly on, with respect to the locations of inland water and geographic middle are almost irrelevant to the determinations that went in to the consent decree.

All we needed to do was to decide thalweg was appropriate in the river in the Harbor and then determine where the line ended.

That did not need any great application of legal principles, because it was a factual question.

The channel gradually disappeared as it hit the open ocean.

We did not need to determine the mouth of the river and I submit that we did not.

All we did was determine a reasonable place for the thalweg to end without having any requirement for determining inland waters.

We believe we have been prejudiced by the determination of the Master and that if you are going to use a concept of inland waters that we ought to have our opportunity in this Court.

These boundaries are very serious things to the States.

We are going to have to live with them for a long time.

We believe we deserved the opportunity to have a full determination of our facts and evidence before the Courts merely accepts the report of the Special Master.

Thank you.

Unknown Speaker: If we were to agree on geographic middle, are you suggesting that on this record that would be inappropriate without Maine having a further opportunity, to have a determination of inland waters?

Mr. Edward Bradley: Your Honor, we never had the opportunity …

Unknown Speaker: Is that what you are arguing?

Mr. Edward Bradley: I am arguing that we should have a determination of hearing on geographic middle, on inland waters and also, the rejection of thalweg.

Unknown Speaker: What relevance this determination of inland waters have on the determination of geographic middle?

Mr. Edward Bradley: The Master felt that he had to determine the location of the geographic middle by a closing line across inland waters to determine the end point of the straight line terminates to the boundary.

Unknown Speaker: You said, you might be able to persuade them to the contrary as to the closing line, which then would have an effect on the location of the geographic middle?

Mr. Edward Bradley: No, I am only saying that if you choose the principles we adopted in our judgment for consent decree, it is unnecessary to determine the extent of inland waters.

That can be left an open question for determination …

Unknown Speaker: I will disagree with you on that.

Mr. Edward Bradley: If you disagree with us …

Unknown Speaker: On the principles on which you have based the consent decree.

Mr. Edward Bradley: Then, if you do, Your Honor, I believe that you should send it back to the Special Master for determination.

So, we can have a full opportunity to develop them.

We have not had that opportunity up to this point.

Unknown Speaker: What is it you wanted to know?

Mr. Edward Bradley: I have suggested …

Unknown Speaker: We disagree with the principles on which the consent agreement.

Mr. Edward Bradley: I am suggesting your Honor that you do not have the proper development of the case at this point.

To determine whether you can disagree with us, I have suggested two things today that were not even mentioned before the Special Master.

The question of whether contemporaneous charter in Rhode Island has any effect on the usage of thalweg.

I suggested that the Master seriously over estimated the concept of the half when it was used in the petition for appeal.

I believe there are hundreds of other items …

Unknown Speaker: (Inaudible) for the Special Master, did you?

Mr. Edward Bradley: Yes we did, with respect to the …

Unknown Speaker: And, I suppose the purpose for stipulating it was to help him in determining whether he should accept or reject your consent decree.

Mr. Edward Bradley: Just the concept of thalweg your Honor, I had nothing to do with the concept that he ultimately adopted and we believe that if he is going to not only reject our consent decree, but adopt an entirely new principle that we ought to have an opportunity to present our case with respect to whether that is appropriate or not.

Justice William H. Rehnquist: You said that the only trial you had was basically a truncated one devoted to the authorization for the consent decree, rather than a fight on the merits.

Mr. Edward Bradley: Yes, your Honor.

We had no fight on the merits and no opportunity and it is going to be hard enough to enforce the lines that the Masters adopted.

It is going to be extremely hard, if we feel the people of the State of Maine feel that they have not have the proper opportunity to present their position to the Court.

Unknown Speaker: You do not think that there is enough on the record for the Master to have not only rejected the consent decree and do have said, “I will not accept the thalweg as the principle for division.”

But to go on and say that the proper principle is the middle of the river.

Mr. Edward Bradley: Yes, your honor.

Justice Thurgood Marshall: (Inaudible) evidence is used or argued?

Mr. Edward Bradley: No sir, I want to go back through the documents.

I want to go back through the usage.

I want to have an …

Justice Thurgood Marshall: My brother Brennan tried to get from you what you wanted to present, as of now.

Mr. Edward Bradley: As of right now, I do not have a full -- we have not develop the cases entirely as it should have been to this point.

We are really at the stage now where we are no more than at a preliminary trial stage, because the way the case developed below you.

You do not have a full development of any of the facts or issues of this case.

Unknown Speaker: But, Mr. Bradley, let me understand.

You are arguing that if you had a full opportunity you might be able to persuade him that he should not adopt the geographic middle principle.

Are you also arguing that if he does adopt the geographic middle principle, it might be placed elsewhere?

Mr. Edward Bradley: No, your Honor.

I believe that if he does adopt the geographic middle that the only …

Unknown Speaker: He has the right line.

Mr. Edward Bradley: He has the right line.

Thank you very much.

Chief Justice Warren E. Burger: Thank you.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Texas v. Louisiana - Oral Argument

Thu, 23 Aug 2012 18:13:17 +0000

Case:

Texas v. Louisiana

Media File:

36orig_19760119-argument.mp3

Related Transcript:

36orig_19760119-argument

Transcript:

Argument of John L. Hill

Chief Justice Warren E. Burger: We will hear arguments first this morning, in number 36, under our original jurisdiction the State of Texas against the State of Louisiana.

Mr. John L. Hill: Mr. Chief Justice and may it please the court.

The major unresolved issue before us is which of two proposed lateral boundary lines should be adopted by the Court in its final decree.

That would in the Court?s judgment properly fix the gulfward extension of the lateral boundary, between the States of Louisiana, the States of Texas and the United States.

Now, during the trial before the master in New Orleans, which constitutes almost 1200 pages of testimony and large number of exhibits, there were many lateral lines that were in contention and that were proposed about parties.

But the only two lines that are still viable and in contention are the Texas so-called middle line or median line, which begins at the mouth of the River Sabine, the natural mouth of the River Sabine and extends gulfward three - leagues on a middle line or median line principle.

Which we believe to be the only correct and equitable line that will fairly divide the territorial sea between these two states which is all we seek to do, which is all we can seek to do here is just fairly divide this territory.

Unknown Speaker: Mr. Attorney General, before you get to that, as I understand there is no dispute of the area of the River now between 30 and 32.

Mr. John L. Hill: No neither.

Unknown Speaker: Latitude and you referred to 12 maps that had been agreed upon, and apparently are to be deposited with the land departments of each state. Do you expect us to incorporate those maps in our decree here?

Mr. John L. Hill: We do not speak of it as an agreement.

We speak of it as the ascertainment on the ground of the facts and legal principles that this Court has already enunciated in your first opinion.

Unknown Speaker: You expect us to incorporate --

Mr. John L. Hill: Yes we do, with the only controversy left down to the natural mouth of the river, involves --

Unknown Speaker: I know what the only controversy is.

Mr. John L. Hill: I am sorry.

Unknown Speaker: But how are we to incorporate them in the decree if they are not here?

Or are they here?

Mr. John L. Hill: Yes, they are in the exhibits if it pleases the Court.

Unknown Speaker: Are you going to submit incorporation language, or do we have to work it out ourselves?

Mr. John L. Hill: No Sir, we would be happy to do so.

We think that the proper decree, since the Court?s proper decree here should be that the lateral gulfward extension shall be a middle line or median line, extending from mouth of the gulf that would be sent back for that principle, and we have plotted at the coastline.

We think the proper coastline is the historic coastline as we say.

But I think the proper decree would be for us to do that, and at the same time you settle the middle pass issue for us.

Unknown Speaker: I know what the issues are, what I am concerned about is that two degree area up there, and I am trying to pin you down as to whether you have language that will --

Mr. John L. Hill: We do, Your Honor.

Unknown Speaker: Enable us to --

Mr. John L. Hill: We do.

We have co-ordinance, we have fixed position all through the geographic middle of the Sabine River.

We have worked very hard to do that, and we have produced a result that we believe comports with Justice Stewart?s opinion, Justice Whites? opinion, in the first ground of this case.

Unknown Speaker: This does not bring you down to the gulf does it not?

Mr. John L. Hill: No Sir, but we are alright in that we could?

Unknown Speaker: He has to cover -- (Inaudible)

Mr. John L. Hill: Clearly.

Unknown Speaker: Degree area and I just wanted to confirm?

Mr. John L. Hill: Yes Sir, well we certainly have the help in the record and I do not think that presents any difficulty at all.

We do, and I do not intend to dwell on the middle pass issue.

I think so clearly in favor of the master's recommendation that the middle pass be used as the Northern end of Sabine Lake that unless you have some questions about it, I do not intend to take any of my time with it.

Unknown Speaker: Attorney General, is there a counterpart of that map in our papers?

It looks different from this --

Mr. John L. Hill: Yes, it is different in this respect and I should like to explain it if I may?

Unknown Speaker: But may I ask, is there a counterpart of it here?

I cannot see --

Mr. John L. Hill: There is to this extent.

This is an exact reproduction?

Chief Justice Warren E. Burger: Mr. Attorney General.

Mr. John L. Hill: I am sorry.

Chief Justice Warren E. Burger: Would you draw your map closer so that you will not be out of range of the microphone?

Mr. John L. Hill: So the difference between what is before the court on the exhibit and what is in the Masters? exhibit here besides from the obvious enlargement, is the Louisiana Arc.

And the fact that the only two lines, we have put on this map are the lines still in contention.

You will notice on the master's exhibit, there are many other lines, and no use clogging this discussion with lines that everyone has abandoned.

The only reason for putting the Arc in your previous decrees, you have decreed that Louisiana is entitled to measure the breadth.

Unknown Speaker: (Inaudible) -- in our papers that I can look at rather than try to get from here and I cannot?

Mr. John L. Hill: If you could Justice Brennan, if you will refer to the masters exhibit but ignore all of the lines that are on it.

Except what is designated I believe line number one, the Texas median line, and the US line which is line number five.

It is otherwise the same with the exception of drawing the Louisiana Arc, and we did that solely to refresh the memory of the Court, a one unique feature of this controversy.

That is a previous decree of this Court have said that Louisiana may measure the breadth.

It is a very important point in this case, which was overlooked by the masters, consistently overlooked by the United States and Louisiana.

Your decree states that Louisiana may measure the breadth of the territorial sea from that Jetty, that decision has nothing to do with where the lateral boundary would be in their territorial sea or in our territorial sea.

But we want to put it in here so you can see that the Louisiana territorial sea is rather unusual and that it comes on an arc and then joins in there, three miles lines, which of course they are taking under the unconditional grant of the Submerged Land Act.

They are taking three miles which they try to take a historic three leagues.

It was rejected by this court, we tried to take historic three-league and it was affirmed by this Court.

So you have a state on the one hand with a three-league grant already established by this Court, and Louisiana on the other hand with a three mile grant, but allowing them to measure that three mile grant from the eastern edge of the Jetty, under the Geneva Convention, holding that that was a part of their coastline.

So that actually they a have a territorial sea on breadth, that is very unusual looking animal, as a result of those two cases.

So, that is what this map is for, I hope it will be useful as we go along in our discussion.

Unknown Speaker: I think one of the (Inaudible) argument that will pass that point, is there a map in the briefs or in the report that shows the upper end of the lake?

Mr. John L. Hill: Not in the briefs, if it please the Court, but there is an exhibit if you will go back to our --

Unknown Speaker: As far as the contention between You and Louisiana is where the line begins at the upper end of the lake, there is no map that --

Mr. John L. Hill: Not in the briefs, in only the exceptions to the masters report, Justice White.

But there is a map we have --

Unknown Speaker: What is the exhibit number, do you know?

Mr. John L. Hill: I believe that it is 5A.

I beg your pardon.

We did file a brief reply to the exception filed by the State of Louisiana, and Mr. York now showed me that on page four of that brief there is a description of the middle pass, the West pass and the East pass.

If I may refer you to that, it is a very short brief, it is showed on page four.

Unknown Speaker: --that is the only map there is?

Mr. John L. Hill: The only one in the briefs, may it please the Court.

Unknown Speaker: There is no masters map to this --

Mr. John L. Hill: Not attached to as an exhibit to his report.

There is in the record, yes --

Unknown Speaker: Instead of this one --

Mr. John L. Hill: Well, Justice Blackmun has a larger exhibit that he is referring to Justice Stewart.

Now, the only significant as long as we are on that point and the Court is not expressing an interest in it, a middle pass is clearly the proper pass, the mark geographic middle of the river at that point.

The only reason Louisiana ever contended that the West past should be used was because Louisiana owns some island, they claim to own some island, West for the middle pass.

The Court properly, master properly found that is totally immaterial to the question of where the geographic middle of the river is, whether there is some island west of it or east of it.

Unknown Speaker: (Inaudible) according to the contention the two States are not in contention to south of that,

Mr. John L. Hill: No Sir.

Unknown Speaker: Until you get to that though?

Mr. John L. Hill: That is correct.

And then the middle pass I think clearly is going to be statement of this Court.

So we come on down then to the major issue in dispute which gives us about 12,000 acres of offshore lands that are in dispute, and the area that the United States is affected by are here beyond the Louisiana Arc, some 7500 acres in the little triangle here, that is in dispute, that you can get down to what the lawsuit is about.

That is Texas's position, that Texas has had, a lateral boundary, a three marine league seaward in to the gulf and is now a contested area ever since the 1845-49 period.

I am sure the court knows why, and this title 's litigation we refer to the 1845-49 period is related to Texas.

I will pick that up in a little while there is a very good reason for it.

As most everyone is written on this subject, to read this that we would deed it, this little flavor from the United States Government, from the west bank to the middle of the river in 1848, had the same standing historically by the very terms of the Submerged Land Act as our original historic grants.

So when I speak of 1845-49 that is why I am using that term.

The United States and Stanley agrees with the position that I just stated.

They agree that Texas had a historic three league lateral boundary, and they conceived this in their briefs, they argue with the fact that it was not precisely delimited.

We will get to that in just a moment.

But the position of course, our basic position is based on a number of historic items and this has been so well documented in your previous cases that to get a little bit of posing on the court to go over all of it, I will try to hurriedly do so.

Of course, first the United States, a party to this litigation and the State of Texas, a party to this litigation, entered a stipulation that appears at 394 US 1 which was the third chapter of the second United States versus Louisiana Case.

And this is what it said.

The United States has accepted Texas three-league boundary opposite the western half of Sabine pass.

Not as a boundary as it existed when the State came into the Union in 1845, but as one approved by Congress before the passage of the Submerged Land Act, and as such equally entitled to recognition under section 2(b) of the Act.

The land identified in the stipulation as the land to be recognized as Texas historic offshore boundary includes the 1849 extension, but the United States reserves the effectives of that extension as against the claims for example, as might be asserted by Louisiana.

Alight, that reservation which carried out, Louisiana made a context of it, and that is what the original opinion in this case dealt with as to whether it was valid against Louisiana?s claim.

And this Court held that it was, that is already decreed law by this Court in the face of Louisiana?s contest, you rejected their claim of the west bank and judicially decreed Texas historic boundary to which the State of Texas and the United States had already agreed.

So Louisiana?s contest has been rejected, and the stipulation of United States is still binding on them.

Now that historic boundary of course is based on a lot of historic documents, again as so hurriedly because it is so much a part of the previous cases.

Our 1836 Texas Boundary Act was the fundamental historic document that from and after the passage of this Act, passed when we were an Independent Nation and a Republic, the civil and political jurisdiction of this republic (b) and is hereby declared to the extent of the following boundaries to with, beginning at the mouth of the Sabine River and running west along the Gulf of Mexico, three leagues from land to the mouth of the Rio Grande so forth.

When Congress annexed us as a State in 1845, this mind you was the territory that the Republic of Texas considered that it was properly included within its boundaries, and rightfully belonging to the Republic.

That beginning at the mouth of the River Sabine, three leagues gulfward to the mouth of the River the Rio Grande.

What did Congress say when they annexed us?

That Congress does consent that the territory properly included within and rightfully belonging to the Republic of Texas maybe erected into a new State.

It did say, subject to the adjustment by this Government of all questions of boundary that may arise with other Government, you will remember the history that the United States was concerned about where the western boundary of our State would be, where the boundary would be with Mexico, and they wanted to press every claim that Texas rightfully had against all contestants and participants, and that is why that language was used, there was never any contest over our eastern boundary.

Never, the only contest that is ever reasoned about is Louisiana's rejected claim that we did not own half of the Sabine River.

We came along to the treaty that we then entered into with Mexico following this series of events.

The language and the Treaty of Guadalupe Hidalgo said, the boundary line between the two Republic shall commence in the Gulf of Mexico, three leagues from land opposite the mouth of the Rio Grande and from that and so forth.

Three leagues river, there can be no question any longer about the fact that we had our historic boundary and there can be no question about the fact that that boundary included a lateral boundary, whether or not Congress said, when it said beginning at the middle of the River Sabine and to line three leagues, the mere fact that it did not stake it out by some call or some precise delimitation.

We believe that does not defeat the fact that Texas had and had to have a historic lateral boundary connecting that beginning point and that ending point at that time.

Unknown Speaker: The Treaty of Guadalupe Hidalgo was after Texas was annexed, wasn?t it?

Mr. John L. Hill: Yes.

And you do remember, of course, I did not read it, but did not think it is necessary when they moved our line over the United States and 1848 Congressional Act consenting to the extension of the line.

It also said one half of the Sabine River from its mouth.

Unknown Speaker: (Inaudible)

Mr. John L. Hill: Yes Sir.

Unknown Speaker: -- prior to 1948 when the boundary was on the west bank of the River, as to how you would get from shore to three leagues out, what angle would be appropriate?

Mr. John L. Hill: It is our position Your Honor?

Unknown Speaker: I am asking if the party is in agreement as to what the line would have been prior or 1848.

Mr. John L. Hill: I would say that there is no longer any dispute in this Case, it is the only proper way to construct a lateral boundary is by use of the so-called Median Principle.

Unknown Speaker: How would the Median Principle operate from the west bank of the River, that is what I was in fact not clear.

Mr. John L. Hill: The west bank of the River, that was still a contended far line, which it is not, you simply step out and adopt the same so-called Shalowitz (ph) Principle.

Really the way a median line is drawn as you go out to sea and you find a place that is close to where you are shooting far.

And you shoot to the nearest point on each shore that you are nearest to, and that is your beginning point.

And you step in on an arbitrary kind of ad hoc basis so that you keep that line all the way to its connecting point where every point on that line is no closer to one coast than it is to the other, and of course, the obvious reason is, what you are trying to do is equitably divide the seabed, and that is the only kind of line that does it.

Unknown Speaker: Let me put my question a little differently.

If the line, had it originated on the west bank of the river instead of in the middle of the river, would it have been parallel under that principle to a line which originated in the middle of the river?

Mr. John L. Hill: Yes, but that would not be very much different, say academically if that is what we are deciding about in this case, we would not have very much to talk about it.

Because the principle of the line would be the same.

It would just have a different connecting point that some maybe quarter of a mile to the west of it.

But you project the line exactly under the same principles, that we have spoken of as the middle line back at the time Texas was annexed.

I will get to that in a moment.

But the only concept of any of so-called middle line or median line is that what you are trying to do is to divide the path fairly, that is all it is about.

You trying to go haywire, you are trying to do equity to both sides.

No one denies that the Texas line shown on this map does that, no one.

The line is proper, it connects to our historic middle and it divides it in it an equitable way.

When you take the United States line which is now been joined in by Louisiana, you use the jetties which were not developed on median principle lines at all.

They have nothing to do with equity of dividing a seabed, they were built by the United States Core of Engineer for the purpose of the United States Government in navigation.

They do not even purport to follow a median line.

And when you move down and start at that position, you destroy the principles of median principle because you have such narrow baselines.

It is meaningless.

If you take two small baselines to construct a median principle out of that, you might as well just draw a straight line.

It is going to come out substantially the same.

So, unfairness is injected into this case by the use of man-made jetties constructed by the United States Corps of Engineers in 1880 when they were begun as to our historical boundary was already recognized, which did equity to everyone, and now we are put in the position that we are being said that we have given up part of our entitlement because in some way, we have acquiesced, we have acquiesced says the master, as his primary basis.

The State of Texas is acquiesced in giving up this valuable land that would be ours under that principle because we have acquiesced in moving our boundary line down the Jetty to the mouth.

How ridiculous can you get.

It is an aversive change, nothing which we participated.

It was begun in 1888, totally financed by the United States Government.

The only reason for building it was, that there were still building up at the mouth of the Sabine River and placing a bar by the navigation and it would get it out further into sea, the silt would not impair navigation.

They worked on it till 1936, what were we doing, acquiescing every several years, as they added a little but more on to it, it is ridiculous.

We have not consented the for changing of our boundary.

Unknown Speaker: Mr. Attorney General, on your theory had the river come in to the Gulf, directly due East, then the median line would also go directly due East?

Mr. John L. Hill: Not necessarily due east Justice Blackmun, because you do not measure a median line from the channel of the river and extend the channel of the river out.

You use the coastline or the baseline, the proper baseline.

Unknown Speaker: Suppose the two shoulders had been North and South of one another, at the point of the mouth of the river, is not my question then to a possibel answer.

Mr. John L. Hill: It would still go to the -- still in establishing the middle line as that river point, you would establish it not by reference to the channel or the fallback so-called of the river, you would establish the middle line by reference to the coastal, the coastline.

Unknown Speaker: It depends on how long your baseline is.

Mr. John L. Hill: Yes Sir.

Unknown Speaker: And if it tried to change, if you had a fairly long baseline it would not make much difference which way to -- what direction the river was running when it run into the?

Mr. John L. Hill: No Sir.

Particularly if the coastline was more or less regular and I do not think that anyone claims that Louisiana and Texas had a substantially irregular coastline, as coastlines go.

And what is happening here is after they cannot sustain the acquiescence and prescription because the evidence is weak, the law is weak, you do not take something away from someone on acquiescence on a small 25 year period which is all they are talking about on the basis that some shrimpers had given affidavit that they got arrested about for fishing license in a certain area.

That is just weak as water and it would not hold, and there is not enough evidence here, this Court has repeatedly said that if you are going to apply prescription and acquiescence which you do not even favor as a rule, you are slow to do it in a boundary involving water, much slower than in land.

And I just do not know of a case where you take this kind of evidence that has been presented here over that short period of time and ignore all of the other documentation and history and case law here and just overwrite it on some basis, that prescription we have agreed that the mouth of that river could be shifted down.

Now losing on that point, we get into a -- United States takes the position and the Master agreed that since Congress did not more accurately delimit our lateral boundary line back in those historic times.

That it must be discarded in favor of a modern line which we take into account these modern jetties.

Now, we have said out in our briefs, please remember that we have a pre-trial brief, a post-submission brief, as well as our brief in support of our exceptions.

All of which we would commend because we have shortened our brief down on our exceptions, and some of our evidence on this inchoate line principle are in the previous briefs.

Unknown Speaker: Where do you claim your baseline is?

Mr. John L. Hill: The historic coastline.

Unknown Speaker: Where is that?

Mr. John L. Hill: In this particular map it is right here.

It would actually favor Texas to use the present modern --

Unknown Speaker: Show me again where do you claim your historic baseline.

Mr. John L. Hill: Right here, Your Honor, where these lines are.

That is the historic coastline --

Unknown Speaker: Anything to the right of that is a man-made?

Mr. John L. Hill: Yes, these were results of evulsive changes that came about by building the jetties.

I wish we could use them, we would move our line eastward if we could but it is wrong, it is legally wrong to use it.

It is not equity to Louisiana, it is not haywire, it is the wrong principle.

The right principle is the historic shoreline because you have already decreed it for Texas, you have already told us that that was the baseline.

Unknown Speaker: Where is Louisiana?s, where is the Louisiana?s?

Mr. John L. Hill: Baseline?

Unknown Speaker: Coastline, baseline, which -- to apply the median principle?

Mr. John L. Hill: Right here, we took these lines from the decree that was already placed in the?

Unknown Speaker: Now where is Louisiana?s baseline, according to the master.

Mr. John L. Hill: At the Eastern, that the mouth or head are permanent of the eastern jetty.

Unknown Speaker: Where is that?

Mr. John L. Hill: Down here.

Unknown Speaker: So there is not much of a, so how long is the masters baseline?

Mr. John L. Hill: Well the master?s baseline is all about six miles, because the jetty comes out 3.1, into the water, from the natural mouth.

And the reason, the basic fallacy --

Unknown Speaker: In applying the equidistant principle out in the Gulf, where is he measuring from?

Just the two ends of the jetty?

Mr. John L. Hill: Exactly, he might as well have saved his time.

Unknown Speaker: Yes.

Mr. John L. Hill: I mean once he got us out to the end to the end of the jetties, where the jetties with which he had such great affection, there was no need.

I mean the median line principle went out the window.

So, it was simply because, the anomaly here is that you have given Louisiana the right to measure her territorial sea, the breadth of it from the east jetty.

But you have not given her, that has nothing to do with lateral boundaries, that just simply had to do with your interpretation of the Geneva Convention that since harbor work were part of a coastline for purposes of delimiting the sea --

Unknown Speaker: (Inaudible) When was the last addition to the jetties made?

Mr. John L. Hill: 1936, and we are supposed to somehow acquiest in these man-made evulsive jetties?

Unknown Speaker: How far apart are the jetties?

Mr. John L. Hill: Well, about half a mile.

Unknown Speaker: And that is the shipping channel issue?

Mr. John L. Hill: Am I wrong in there, I stand corrected, I do not know the answer.

I have seen them many times.

Unknown Speaker: (Inaudible)on your theory of -- what part of the eastern jetty be in Louisiana and part in Texas?

Mr. John L. Hill: No Sir.

You see it is a fallacy.

They talk in terms of the eastern jetty being owned some way by someone.

No one owns the eastern jetty, it is United States Government.

Louisiana speaks that they own this land, this seabed from the Texas median line to the jetty, not at all.

You have not decreed who owns that, you have simply decreed how to measure the territorial sea.

The only thing that can determine who owns it is for you to fix the lateral boundary, that is what is going to determine who owns it.

Unknown Speaker: Mr. Justice Blackmun, is it according to your view, jetties are all located within the boundaries of the State of Texas.

Mr. John L. Hill: No question about it, no question about it.

And they can alter our boundary, by that.County Unilateral Act that to which we have absolutely -- not only not acquiest in 1947, we established our own statutory lines by?

Unknown Speaker: The eastern jetty attached itself to what is conceded as Louisiana land at the mouth of the river?

I take it, it does not?

Mr. John L. Hill: I am sorry I am not catching your question?

Unknown Speaker: What is the land most end of the jetty.

To what does it attach, the eastern jetty?

Mr. John L. Hill: The eastern jetty attaches to the shoreline of Louisiana.

Unknown Speaker: Well then part of it is in Louisiana?

No?

Mr. John L. Hill: No.

The jetty belongs to the United States?

Unknown Speaker: I do not care whom it belongs, I want to know is it in Louisiana, any part of it?

Mr. John L. Hill: I do not think it is.

Unless you want to quibble about the?

Unknown Speaker: Even though it attaches to Louisiana?

Mr. John L. Hill: If you want to say that the attachment at the shoreline, that Louisiana owns that shoreline to where it attaches, yes.

But they do not own the jetties.

Unknown Speaker: Mr. Attorney General, let us forget about ownership.

At the point of attachment it is certainly is in Louisiana, is it not?

Mr. John L. Hill: Yes Sir it is.

Unknown Speaker: Then how far out is it in Louisiana?

Mr. John L. Hill: Not any at all.

Not any point from there is it in Louisiana, you have not decreed the jetty or any part of the jetty to be owned by any State, by either State, nor could you, it is owned by the Unites States Government, it paid for it and erected it.

The only significance you have ever attached to it is you gave the eastern?

Unknown Speaker: I am not interested in ownership, I am interested in location.

Mr. John L. Hill: It is not located then in Louisiana, it would be located in areas that are properly -- let us say that over which Texas will properly have jurisdiction when this case enters the proper decree.

When this Court entered the proper decree to say that this territory is within our proper territorial sea, then the jetty will be in an area over which we properly and legally held offshore jurisdiction.

There is something less than full ownership even in that area as was pointed out in the first United States versus California Case.

But even when US versus California was decided, you recognized that the States had some jurisdiction left, you recognized that jurisdiction was bounded by lateral boundary, you said so in the decree of US versus California and US versus Texas.

You can not wipe out what has already been done by the Court.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Attorney General.

Mr. Rupp.

Argument of John P. Rupp

Mr. John P. Rupp: Mr. Chief Justice, may it please the Court.

There is no longer any dispute between the parties here that the boundary between Texas and Louisiana and the Gulf.

It must be constructed by reference to the median line or equidistant principle contained in Article XII of Geneva Conventions.

That is that the boundary must be aligned that is at all points equidistant from the coastlines of the two States.

The dispute relates instead to the coastline for purposes of application of the median line principle.

Texas? basic position is that the relevant coastline is the coastline that existed in 1845 when it was admitted to the Union.

In support of that position, Texas has contended first that the Congressional Resolution annexing Texas, recognized that Texas had in the Gulf of Mexico both lateral and offshore boundaries, that had Congress undertaken to fix that boundary as of 1845, it would have used the equidistant or median line principle and it would have applied that principle to the 1845 coastline.

And finally that even though Congress did not fix the lateral boundary in 1845 or thereafter, the boundary nevertheless remanded inquit and neither post 1845 evulsive changes in the coastline, nor post 1845 changes in domestic and international law can operate to affect the position of a lateral boundary which has remained in some sense established since 1845.

We believe that the special master properly rejected Texas? positions and that all three of the contentions made by Texas in support of that position, are demonstrably unsupportable.

The operative language of Texas relies upon in support of its argument that it has had for the last 140 years, a lateral boundary in the Gulf of Mexico, appears at page 7 of our brief, and it was referred to by my brother a moment ago.

That language which is taken from the Texas Boundary Act reads as follows describing the seaward boundary of the State of Texas, beginning at the mouth of the Sabine River and running west along the Gulf of Mexico, three leagues from land to the mouth of the Rio Grande.

In United States versus Louisiana, decided by this Court in 1960, this Court held that the language to which I have just referred is sufficiently precise to sustain Texas? claim to an offshore grant under the Submerged Lands Act, extending into the Gulf of Mexico three leagues from land.

At the same time however the Court recognized in that case that at the time of Texas? annexation, Congress paid little attention to the location or existence of any offshore boundaries for the State of Texas.

As the Special Master noted, Congress paid no attention at all to the location of lateral boundaries.

The consuming interests at that time were instead the question of slavery, the debt that has been accrued by the Republic of Texas, and our deteriorating relations with Mexico.

Texas has pointed to nothing in the available legislative history that add to the language to which I have referred, and I think that the special master, we submit that the special master was correct in concluding that it is impossible on the basis of operative language upon which Texas relies to construct the lateral boundary.

As the special master noted, the problem is getting from the mouth of the Sabine to a point three leagues into the Gulf, and I am quoting,?no meridian is chosen, no angle of departure from the coast is referred to, nor is any point in the Gulf three leagues from land specified.?

Given a total lack of relevant language in the statute, there is no indication of how or where a lateral boundary was to be constructed.

What the special master was confronted with then, was a holding by this Court that Texas? offshore boundary, the breadth of Texas? grant under the Submerged Lands Act, extended three leagues in to the Gulf.

The instruments upon which it relied in arguing that it had an inquit lateral boundary, and that the responsibility of the special master was simply to divine that boundary, is that the language the relevant language provides no clue whatever to how that boundary was to be constructed.

Events occurring since 1845 also demonstrate the weakness of Texas? position.

I would like to refer the court if I may to a diagram that appears as an appendix to the special masters? report.

Although Texas contends that it has had for the last 140 years an inquit boundary in the Gulf of Mexico, you will note from the map that when Texas undertook to define that boundary by statue, it fixed a lateral boundary which bears no relation to the lateral boundary it says has existed for the last 140 years.

The median line that Texas from the 1845 shoreline that Texas now suggests ought to be regarded to this Court, or adopted by this Court as its lateral boundary is marked as green line number one, on the special masters map.

The Texas statutory line is green line number three.

The principles used to construct line number three and the principles that Texas now relies upon in constructing line number one are not the same and not surprisingly then the lines bear little relation to one another.

The second link in Texas? argument in support of its proposed boundary line we believe is no stronger than the first, and that is even if lateral boundaries were not defined at the time of Texas? annexation or subsequently, had the United States? Congress undertaken to define the lateral boundary as of 1845, it would have used the median line or the equal distant principle and it would have applied that principle to the 1845 coastline.

We dealt with this contention at some length in pages 14 through 18 of our brief.

Let me only say here that although the median line or equidistant distant principle is today recognized as the governing principle and the fixing of lateral boundaries between adjacent states that was not true in the 1800s.

The instances referred to by Texas at Pages 25 through 28 of its brief are not instances in which the median distant principle was used to delimit areas in the marginal sea, with one exception and that is the (Inaudible) Case.

But that Case did not apply the median line or equal distant principle for which Texas contends here and which beyond the State of Louisiana agrees the proper principle.

The Court in that Case used the right angle principle --

Unknown Speaker: Does the median line principle, equidistant median line principle apply only when there is not only a dispute between two States or Countries but only when the line, you can not say the line is ever been definitely established before?

Mr. John P. Rupp: There are two ways under the Geneva Convention?s to delimit?

Unknown Speaker: Let us assume, just to get my question straight.

Let us assume that when Texas came in to the Union, there was a language used or at least there would be no question whatsoever what the boundary line was.

From what point you would measure and what angle you went out into the Gulf on, let us assume that it was absolutely clear at that time.

Mr. John P. Rupp: Yes.

Unknown Speaker: Now would building the jetties then change that boundary?

Mr. John P. Rupp: I wish I could answer that question yes or no?

Unknown Speaker: You must answer it no, I suppose?

Mr. John P. Rupp: Well I think the answer is no and the reason that it is no is that this Court has held?

Unknown Speaker: Because if you would have answered it yes, that Texas? argument about what its historic boundary was irrelevant?

Mr. John P. Rupp: I do not think that follows.

Let me backup for one moment, this Court held in United States versus Texas, that Texas did not have a recognizable claim to lands offshore.

Recognized however in United States versus California, that Texas and other Gulf States might nonetheless, and California, might nonetheless exercise some police powers in those areas.

Now, the historic element of this case comes into the picture only because in the Submerged Lands Act, Congress permitted States to exercise one or two options.

Either the three league option if based upon historic events, or an unconditional three geographic mile grant.

Unknown Speaker: I will put it again.

The master establishes what the line is now, now suppose the jetties are extended next year on a different angle --

Mr. John P. Rupp: Yes.

Unknown Speaker: Does the boundary change or not?

Mr. John P. Rupp: Our position is that it would not, once it is fixed in the decree of this Court it would not.

I should add however, that the parties have?

Unknown Speaker: I take it you agree, if there had been a judicial finding of what the boundary was or where it started in 1900 it would not have been changed by the building of the jetties?

Mr. John P. Rupp: The problem is, I cannot answer yes or no?

Unknown Speaker: Alright.

Mr. John P. Rupp: The problem is that we are talking about a controversy which has relevance only under the Submerged Lands Act.

Now, it is the United States? position that a decree in this Court now establishing lateral boundaries between Texas and Louisiana and lands retained by the United States under the Submerged Lands Act will finally fix the boundaries.

We believe further however that the coordinates of a line ought to be incorporated in an agreement between the parties and presented to the Congress so that any potential ambiguity is removed.

This is the first case that presents to this Court under the Submerged Lands Act the question of lateral boundaries.

Those boundaries normally under international law will continue to fluctuate until fixed by agreement and possibly by judicial decree, although that has not been settled yet.

Unknown Speaker: Fluctuate depending upon what?

Mr. John P. Rupp: It depends upon both natural changes in the coastline as well as evulsive changes.

Now the change?

Unknown Speaker: How about man-made changes?

How about changes in those locations?

Mr. John P. Rupp: Yes, I included man-made changes.

Unknown Speaker: As evulsive?

Mr. John P. Rupp: Yes, man-made changes and normally evulsive and the Geneva Conventions specifically include harbor works that form an integrated part of the harbor network as part of the coastline.

And this Court has held that the jetty on the east forms part of Louisiana?s coastline.

Unknown Speaker: Yes.

Mr. John P. Rupp: For you to hold now for purposes of the lateral boundary dispute with which we are now presented that Texas? jurisdiction cuts the eastern jetty and extends eastward into the Gulf of Mexico from the natural mouth of the Sabine, we regard as wholly inconsistent without prior holding.

It is clearly inconsistent with the governing legal principles under the Geneva Convention which this Court has applied to cases such as this arising under the Submerged Lands Act.

In United States versus California when this Court was presented with the duty of determining the meaning of the phrase inland waters, this Court referred to the Geneva Conventions.

This Court incorporated evulsive man-made changes in determining the location extent of California?s inland waters.

In United States versus Louisiana, the last case involving these two states in this Court, again the Court held that man-made changes, harbor works, affected the location of the boundary.

Unknown Speaker: All these two States, it simply involves the Louisiana coastline?

Mr. John P. Rupp: Yes, that is right I am sorry.

It did not?

Unknown Speaker: It has nothing to do with the boarder between this two States as such, did it?

Mr. John P. Rupp: No that is not, that is right, it did not.

What the Court held in that case of course was that for purposes of measuring the three mile limit under the Submerged Lands Act, the eastern jetty was part of Louisiana?s coastline and that Louisiana could use an arc extending three miles from the eastern jetty.

Unknown Speaker: That is not really relevant to the dispute here or the issue here is it?

Mr. John P. Rupp: It is relevant?

Unknown Speaker: Or not relevant but certainly it is not?

Mr. John P. Rupp: It is not conclusive, no, no, it is not conclusive.

This Court has not held, as I just indicated, has not confronted a case involving an issue of the location of a lateral boundary between two States offshore.

We believe that that logic of the prior opinions leads to the result that was reached here, recommended here by the special master.

Unknown Speaker: (Inaudible) the baseline that you lay out in the coast, to start with do you think it has to be the same coastline that was recognized as part of Louisiana?s coastline in the past cases?

Mr. John P. Rupp: Exactly, that is correct, that the breadth of the territorial seas and the coastline to be used for the present purposes should be the same.

Argument of Oliver P. Stockwell

Mr. Oliver P. Stockwell: Mr. Chief Justice, may it please the Court.

I would not try to duplicate the argument that has just been made.

There is one thing though that I want to clear up.

I think it was Mr. Justice White, when we argued the last Texas boundary case asked Mr. McDaniel?s about the effect of that judgment on the offshore boundary.

And Mr. McDaniel?s said, this is on page 34 of our brief, that is correct, it does not affect United States.

I do not think because as to United States, the three-league limit only comes as far as our historic boundary, and Congress has not consented for us to extend it here anymore than they have consented for us to extend it up here north of the 32nd degree of latitude.

So we have no contrary, so Mr. McDaniel was saying that in the extension of 1848 it really did not affect the offshore boundary.

I think in this case, one of the salient facts that as I see is the fact that the jetty starts on the coast of Louisiana and it extends out in the Gulf, so it is an extension of the coastline of Louisiana.

And the master actually determined that the jetties were part of the river to some extent, because he said that in the expert testimony was put in justified the fact that you could say that was an extension of the river mouth.

But he said he did not have to hold it on that basis because on Geneva Convention, it would be the coast of Louisiana to the end of the jetties.

And they have the low water mark at the end of the jetties which about 1800 feet approximately what Mr. Hill said, and that was a baseline, which is a baseline for measuring the territorial sea of the United States.

And in under Article XII of the Convention, it is measured from that baseline, so I think that the master was absolutely correct in taking the modern coastline since you had never had a boundary established, it was maybe incorrect boundary, but the Texas never had recognized any boundary.

As a matter of fact I think the record would demonstrate that all of these parties have treated, more or less down the center of the jetties as being the boundary between Texas and Louisiana.

Now, of course, we disagree about the fact that their median line is correct, because the special master in his report said that there was not enough of the Louisiana coastline of 1845 to justify the median line that Texas was suggesting.

So we take issue on that.

I think one of the things that I would like to cover before I get into that is this north, as it comes into the Sabine River.

The Sabine River comes in the Sabine Lake, there is no dispute over the fact that that is three hours, Texas in their brief admit that when they were admitted in the Union 1845 that their boundary was on the western most branch of the Sabine.

So at that time there is no question about where their boundary was, there is no question about the channel that was used.

Now in 1838, which was before Texas was admitted, the United States surveyed this land for the purposes of issuing patents and made townships out of it.

And they surveyed it to the west branch of the Sabine River, and they let Louisiana select that land under the Swap Lands Act.

Now the only reason Louisiana could select it was that United States treated that as being in Louisiana, and then Louisiana patent that land out to individuals who owned it today and pay taxes in (Inaudible).

Now one of the important things as far as Louisiana is concerned is that the same surveyor held all of these channels were navigable, so that meant that Louisiana owned the beds of those navigable streams.

Now what the master has done, he admits that these islands were patented to Louisiana and patented out by Louisiana, but yet he says that they are now going to be in Texas, so that means that Louisiana has given up these navigable waters and also they have given up this taxes on this private properties.

Unknown Speaker: (Inaudible)

Mr. Oliver P. Stockwell: Over three miles, about three and a half miles I think.

Unknown Speaker: And Louisiana?s position was that you then go see what three miles from?

Mr. Oliver P. Stockwell: Yes Sir.

Our position was we had a statute too, that defines our boundary, and it commenced at the head of the jetties and took a line across the jetties and went due south.

And the United States line, this was median line based on the line across the jetties and after the master decided that was a proper line we have accepted it, so we do not allege the line, and we were alleging to the time.

So the Master in making this determination about these operands about the right channel, said something about the amount of water that came through.

But it is difficult for us to see, how the master could put the land that was already determined to be in Louisiana over to into Texas.

And that is going to be the effect of this decree.

It is going to affect title to a lot of property, since it came through the swamp land grants to Louisiana and was patented out by Louisiana, I am talking about over a hundred years ago.

So, I do not think there is anything to?

Unknown Speaker: It would not affect the title, would it?

Mr. Oliver P. Stockwell: Well, I think the only reason that Louisiana could get the swamp lands was it had to be in Louisiana.

In other words they were entitled as you know to select overflow lands in that porters, and they did that they made these selections and then they issued patents to individuals.

Unknown Speaker: But you can not go back and invalidate those patents?

Mr. Oliver P. Stockwell: Well, I think that might be a legal question.

I mean, I do not know, maybe some prescriptive period.

But anyway the Master admits this was all patented to Louisiana, and there is no question of acquiescence on the part of Louisiana, because right now, they would be in Texas and Louisiana.

As a matter of fact this same issue arose right north of that Orange Texas, what they call it aniurous, and they had two channels.

And the Department of Interior determined that the western-most channel was the channel to be used because that was the channel on the west bank at which the Texas boundary was.

Now that is the whole position we take is that the channel on which the west bank of Texas boundary was, West bank of Texas boundary is the channel to be used and the line was only moved to the middle of that channel.

Thank you.

Justice Harry A. Blackmun: The Missouri River is full of instances where property on the other side belongs to the state on the other side of the river.

So that the fact that the island might be Louisiana territory, but yet beyond the west side of the line is not conclusive I suppose.

Mr. Oliver P. Stockwell: Yes Mr. Blackmun, of course what we are saying is that the Louisiana had title to these beds or these streams by virtue of the fact that the United States recognized that the boundary is extended to this west part.

Now the United States could not take that away and give it to Texas and as 1848 Act, that same issue came up in Mississippi versus Louisiana.

And the Court held that once the State had territory, the Congress could not take it and give it to another State.

Unknown Speaker: (Inaudible) prior case in this Court that Louisiana?s boundaries went three miles out from the jetty?

Mr. Oliver P. Stockwell: Yes, that is right.

Justice Harry A. Blackmun: And you went three miles seaward from the end of that jetty, or from the middle, from the line between two jetties or from the end of the jetty?

Mr. Oliver P. Stockwell: From the end of the jetty, because that determines?

Justice Harry A. Blackmun: Then you started on the north?

Mr. Oliver P. Stockwell: That is correct Sir.

Justice Harry A. Blackmun: And as between the United States and Louisiana, that arc divided the rights to the seabed.

Mr. Oliver P. Stockwell: That is correct, under Submerged Lands Act.

Justice Harry A. Blackmun: Yes, under Submerged Lands Act.

Now Texas? position in this case would mean that part of that property was in that arc would belong to the State of Texas?

Mr. Oliver P. Stockwell: That is correct Sir.

In other words they say that -- in other word if you adopt that theory they get the whole, they get both of the jetties.

Therefore we would not be able to use the jetties to determine our territory --

Justice Harry A. Blackmun: So that if there is oil development, if they were drilling on the seabed within the arc that the United States though belonged to Louisiana under a prior case, it might now be determined it belonged to Texas?

Mr. Oliver P. Stockwell: Well it might be, yes.

I mean if the Court would hold that the Texas boundary extends to where they say it is, it would put part of what Louisiana has already been awarded into Texas.

And of course one of the things Justice is, that the fact that I think the Court started out to have some uniformity to the coastline and through these various issue like based under the Convention.

And what they will do here if this was not followed would be creating a real anomaly as far as this area around these jetties is concerned.

Thank you Sir.

Attribution:

The OYEZ Project

Featured:

Mississippi v. Arkansas - Oral Argument

Thu, 23 Aug 2012 18:14:42 +0000

Case:

Mississippi v. Arkansas

Media File:

48orig_19731205-argument.mp3

Related Transcript:

48orig_19731205-argument

Transcript:

Argument of Mitchell E. Ward

Chief Justice Warren E. Burger: We’ll hear arguments now in Number 48 Original, State of Mississippi against the State of Arkansas.

Mr. Ward you may proceed whenever you’re ready.

Mr. Mitchell E. Ward: Mr. Chief Justice and may it please the Court.

The State of Mississippi has filed this original action asking the Court to make a judicial determination of a disputed boundary line between the two states.

The uncertainty of the boundary line is due to the fact that it is located in an abandoned Bend of the Mississippi River but formerly was a boundary but which is now been cut-off by the action of the U.S. Engineers in making a neck cut-off in 1935.

When the two states were admitted to the union, the Acts admitting the union made the Mississippi River the common boundary.

In the area in question, the river loop westward and southward and then eastward around a long neck of land which was located in Mississippi known as Carter Point, Mississippi and this map have depicted in the Arkansas-Mississippi Refuge Quadrangle was attached to the Special Master’s Report, the Honorable Clifford O'Sullivan.

Justice Potter Stewart: Which is at -- which map is it?

Which --

Mr. Mitchell E. Ward: That’s the map like this.

Justice Potter Stewart: Appendix A?

Mr. Mitchell E. Ward: That’s right, appendix A, yes.

Justice Potter Stewart: Appendix A, thank you.

Mr. Mitchell E. Ward: The black line on this map shows the location of the river when it was surveyed by the Surveyor General of the United States.

It is the contention of Mississippi that from about 1823 to 1830, the time of the original G.L.O. surveys that the river migrated slowly and imperceptibly caving in to the Arkansas bank and adding accretions to Carter Point, Mississippi until such time as it moved approximately 2,000 feet to the west, in the location in 1935.

In the year 1935, the United States Engineers made a cut-off across the neck of Carter Point which is shown on this exhibit, appendix A, thus, diverting the flow of the river from its old channel around the Carter Point and creating a new channel within a matter of some three months, all navigation left the over -- old channel and adopted the new channel through Tarpley Point.

Unknown Speaker: Mr. Ward, I take it the only argument here is over Luna Bar, is that right?

Mr. Mitchell E. Ward: Yes, that area around Luna Bar.

Luna Bar actually created the problem.

Unknown Speaker: Is this a very valuable piece?

Mr. Mitchell E. Ward: Yes, sir.

Unknown Speaker: Appellant exercised here on a --

Mr. Mitchell E. Ward: Its -- by now it has probably close to thousand acres of land.

All of this land shown in Spanish Moss Bend has filled in.

There have been numerous problems in the enforcement of criminal law.

The State of Mississippi arresting residents of the State of Arkansas on this Bar where the intended confusion about which state has criminal jurisdiction.

It is the contention of the State of Arkansas that this gradual migration did not occur but that in the year 1872, the river, Mississippi River suddenly jumped, caved into the Arkansas bank, went over bank, scout out a completely new channel behind the mainland of Arkansas bank and then re-entered the Mississippi channel at a lower area there thus, creating a island which they is Luna Island and not Luna Bar.

The Special Chancellor, I mean the Special Master resolved this conflict in favor of Mississippi and we are here today on exceptions to his report.

We’re not sure just what the position of the Supreme Court is at this time about the weight to be given or the finality to be given to the finding of a Special Master.

We do note that in Rule 9 (2) of the Supreme Court rules at -- they say that where applicable, the Federal Civil Rules will be given effect and in Rule 53 of the Civil Rules, it is provided that the finding -- factual findings of a Master will not be disturbed unless clearly erroneous.

Actually, we are in agreement with Mississippi and Arkansas in agreement with the basic law which is the law of the thalweg and we’re really here arguing a point of fact as to whether the finding of the -- the report of the Master should be approved on that finding.

We both agree that the law is that if the river migrates slowly and imperceptibly and the thalweg continues to cave in to a bank, that that -- where that thalweg is the boundary line between states that that changes -- does not change the state boundary but the boundary follows the deepest line of navigation of sailing line or thalweg used interchangeably and it remains the state line wherever it might be.

We agree on that.

We further agree that if the river suddenly abandons its old bed and carves out a new bed by -- in a very short period of time by an avulsive action that this freezes the state line and the line of navigation, the sailing channel where it was located prior to the avulsion after that reach of the river has ceased to be a flowing stream.

So --

Justice Potter Stewart: Mr. Ward, am I correct in assuming that there really isn’t any argument on the law at all between the two states.

Mr. Mitchell E. Ward: No, sir.

Justice Potter Stewart: It’s just the application of --

Mr. Mitchell E. Ward: The application of the law.

There's one other point of law which, I think, we are in agreement on and that is this that in the brief below, Arkansas conceded that Mississippi had made a prima facie case and that the burden of proof rested upon them to establish the 1872 avulsion.

This was quoted.

I did not argue it in my brief because it was quoted by Justice -- by the Special Master and was not controverted by Arkansas.

That is the law anyway as I understand it to be because an avulsion is an extraordinary thing and not the ordinary thing that would happen.

Fortunately, we were able to find numerous maps and charts, direction for navigation, reports to Congress involving this sector of the river over some approximately 200 of them.

So we have a rarely com -- a fairly complete historical picture of this.

From the time that Mississippi and Arkansas were admitted to the union, there are numbers of maps particularly the all western palette which was -- gave directions to navigators and which included maps of this sector of the river which stated that the sailing vessels when they go through Spanish Moss Bend should go over and hold hard against the bed -- against the bank of the Mississippi River thus fixing the sailing line against the concave, hard bank of the Arkansas River from 1820 up until 1860.

There's not -- the largest years in gap in this period of time was only nine years, so we have a graphic depiction of the fact that from 1820 to 1860, there seems to be no question but what the sailing line, the thalweg, the channel of navigation was hard against the Arkansas bank.

Also, during that time, there was no evidence of a detached bar as we call it, a piont bar, an island as Arkansas call it.

There was no evidence of any detached land mass appearing of Carter Point.

The maps all, however, did show that attached to Carter Point there was building and continued to build a sandbar, accretion formation.

And in 1863, and we now move into the war years, a law, it's 1863 on the Mississippi River which was drawn up for the purpose of showing this very thing, islands, sandbags, further fortifications and land -- and mines that had been placed out -- was printed and this 1863 map goes into great detail showing a very decided sandbar formation attached to the distal end of Carter Point, Mississippi with no land mass formation out in the river.

Following the end of the Civil War and doing the efforts to reconstruct the South, the United States sent a -- General Humphreys down to make a -- an inspection and report, particularly on the condition of the levees along the Mississippi River.

The levee being as you know an earth and bank mud that is thrown up at that time parallel within quite close to the bank line for the purpose of trying to contain the Mississippi waters when it was in (Voice Overlap).

This report that Mr. -- that General Humphreys made in 1866 to Congress and a subsequent report that he made to Congress in 1869 reported that the bank was caving badly in this Bend that the levees had fallen into a state of disrepair and that breaks were evident in the levees in several places, all in this Spanish Moss Bend area.

Then in 1872, the State of Arkansas also became concerned with this and they appointed a surveyor named Douglas, to make surveys of the existing levees and to make recommendations for new levees to take the place of the gaps into old levees.

This is a first historical proof of the existence of this land mass known as Luna Bar in a situation where it has become detached from Carter Point.

Mr. Douglas surveyed a -- in great detail the Arkansas bank there.

He showed farms.

He showed forests.

He showed sloughs.

He showed the levees in place and levees which had been breached.

Luna Bar, he did not designate its sect but in the river over against the Mississippi shore, he showed and I -- a formation detached from the shore utterly devoid of any sculptural symbolization which would indicate, we have no report of Mr. Douglas, but it was slightly indicate by leaving it blank that he did not consider it a part of Arkansas.

The most important thing about Douglas’ survey however, is the fact that he locates with great detail the then existing levee system with its breaks which coincide exactly to the reports that General Humphreys made through Congress in 1866 and 1869.

And the engineering witnesses introduced by -- the engineering witness and it was only engineering witness introduced by Mississippi was able to overlay subsequent surveys right up to the present time and you can see that all the levee’s prior to 1860 in place, you can walk them both sides considered they’re there.

You can walk them along the bank, on the Arkansas side.

There is no levee formation or whatsoever on Luna Bar which is some 2,000 the crest of it is some 2,000 feet to the east.

Justice Potter Stewart: Mr. Ward, in respect to that last statement, does your opposition agree with you on that.

Wasn’t there some testimony somewhere that there is evidence of an old levee on Luna Bar?

Mr. Mitchell E. Ward: No, sir.

I think not.

There was some testimony of an old house site on Luna Bar.

Unknown Speaker: Or an old cistern was --

Mr. Mitchell E. Ward: Cistern, that’s right and then the witness Putnam (ph) said, he thought he saw a chimney.

On his second visit back, he could not locate the chimney.

No one was able to locate any habitation on Luna Bar.

The witness, Dr. Durham, even went so far as to get a metal detector and go -- they assumed that there were houses there because there were chinaberry trees.

In that part of the country, they do plant chinaberry trees around house sites so they saw some chinaberry trees also brought in by birds.

But they did --

Unknown Speaker: Is there any habitation there now?

Mr. Mitchell E. Ward: Sorry.

Unknown Speaker: Is there habitation there now?

Mr. Mitchell E. Ward: No, sir.

Unknown Speaker: But you’re still arresting people on Luna Bar for something?

Mr. Mitchell E. Ward: Mississippi is arresting people on Luna Bar.

Unknown Speaker: What -- for what -- on what kind of charges?

Mr. Mitchell E. Ward: By game violation.

There has not been one -- this really started the series of suits was a -- Mississippi making these arrests.

And I think that’s really what precipitated the litigation.

Unknown Speaker: The litigation.

Mr. Mitchell E. Ward: Litigation and we thought it well to bring it to -- in a proper way.

Unknown Speaker: Well, these are hunters?

Mr. Mitchell E. Ward: Hunters, yes.

One was a hunter from Missouri, came down with an Arkansas license and was arrested and tried in Mississippi and another one, I believe had in Arkansas license and was also arrested.

Justice Potter Stewart: So is that -- those episodes that motivated this litigation to get the (Inaudible).

Mr. Mitchell E. Ward: Started the litigation then in the lower courts.

One suit was filed in the District Court at Greenville.

Another suit was filed in the Chancery Court of Arkansas and we were getting litigation all over the place and Mississippi decided they wanted to bring it here then have some definite adjudication of where the line was.

Justice Potter Stewart: Are these geese or ducks or --?

Mr. Mitchell E. Ward: Deer mostly -- there is very good goose and duck but mainly deer and the turkey.

Justice Potter Stewart: And who’s the owner of the property in litigation?

Mr. Mitchell E. Ward: Carter Point is owned by a lumber company, Anderson-Tully Company, the Arkansas bank well, right north of Carter Point is owned by Chicago Mill and Lumber Company which do not involve in this suit the land owners to the west of various one, Dr. Wells is now dead, Mrs. Smith, Arkansas Land & Cattle Company and then they have further owners, further other owners further downstream that have not yet become involved in any of the litigation.

Justice William H. Rehnquist: When this dispute is to the historical movement of the river, unsettled private titles as well as the boundaries between the states.

Mr. Mitchell E. Ward: Yes sir.

On that Duke versus Deffrey (ph), they recognized that private litigants can settle their titles one by one if they finally get an unappealable decree but it is difficult crossing state lines to get personal surveys on land owners and to make a decree which you feel confidence in.

Also that does not resolve the question of taxes.

There’s the question of criminal jurisdiction and recently there has been a good bid of all activity in Washington County which is immediately adjacent to that, has always been a good bid.

In Arkansas, I’m not quite sure about this particular county.

But in any rate, the Douglas 1872 survey was the first historical evidence of this situation being there.

Also in 1872, Louisiana since they were getting the water when the water flowed through the breached levees in Arkansas, they flowed downstream and came in to what is known as the tinsel bottom and Louisiana also sent, a Captain Richardson (ph) up to make an investigation and report and he made a report in 1872 to the Louisiana Levee Commissioner reiterating the same situation found in Humphreys’ reports.

In addition to the breaks that he found and shown on Douglas’ Report, he found an additional break of 200 feet in the levee.

The important thing about all of these reports, it seems to me is this, one, no mention was ever made of an avulsion taking place in 1872 whereby the river jumped into Arkansas and caved through the land and came back out.

The geological witnesses, Dr. Kolb, from Mississippi, Dr. -- Mr. Spillers (ph) and Doctor Durham from Louisiana all conceded that in there experience as geologist and all of the geological literature there had never been any mention or ever has any history of any such phenomenon taking place as Arkansas claims to have happened here.

In fact Dr. Kolb said, I had to coin the phrase and he called it an outside avulsion and said, I never heard of it, I just made it up.

Mr. Spillers made one, he said it’s -- I call it reoccupying an old channel.

He admitted that there was no such accepted phrase in geologic literature and he said he had to coin the phrase too.

So, with all of these weighed down in this particular narrow sector of the river it is -- it seems to be incredible that if this phenomenon took place, it has never happened before and it never happened since -- but they were concerned with the integrity of the levees when they were concerned with trying to protect the backland of Arkansas from flooding that they would've swept this remarkable situation under the road.

Unknown Speaker: Mr. Ward, there was a testimony by a forester with respect to the existence of three rather mature trees, one, a red mulberry tree, I think and the other, a black walnut tree and as I remember the species of the third tree was not identified which Arkansas says tends to support their theory.

Where were those, it wasn’t clear to me, where those trees -- where the forester testified he found those trees or tree stumps and what the --

Mr. Mitchell E. Ward: Significance of them?

Unknown Speaker: -- significance of them would be?

Mr. Mitchell E. Ward: Mississippi takes a position that those of stumps of trees that had had been severed from their bowl in years past and had floated in over some flood in preceding years.

And substantiation of that position which we think is a valid one.

The two, the -- if the Court please, one of the old mulberry tree was found on the lower end of Luna Bar, the other two trees were found about the center, west center portion of Luna Bar.

The remarkable thing about it was that they -- that these witnesses pinpointed and they are on the exhibits.

They pinpointed the location of these tree stumps which they said -- they thought were stumps of trees in place.

Unknown Speaker: And they testified, they were deeply rooted there, they were -- didn’t they?

Mr. Mitchell E. Ward: One of them, yes, one of them was rooted, one was -- been over and was not real, one had the moss on the roots, it couldn’t have been Putnam -- that Mr. Putnam before said it was rooted.

Then I call his attention, the fact that there was moss on the roots.

Then he said, well, that -- it wouldn’t have moss on the roots.

But the complete refutation of that in our opinion is this that the witness, Smith, the all -- all of these maps were blown up to a common scale, one foot equal 20,000 feet, one to 20,000.

It’s possible by getting your benchmarks, your levees and so on and lining them up to overlay and -- transparent overlay is made of all these exhibits.

To put one exhibit transparency over the other and locate various geographical points, the mulberry stump and the other two stumps which they said were of ancient age, in 1894 the soil was in and one place was 10 feet lower and another 15 feet lower and another place 20 feet lower.

So between 1894 and 1970, when Mr. Putnam went on to Luna Bar there had been a filling so that the elevation had been increased from 1894 as laymen, I’d say fill, it had been filled in.

The elevation had been increased as much as 20 feet, 15 feet, 10 feet, so these stumps were -- they would've hanging in the air if they had been there in 1894.

In the meantime, the river had come in and deposited and these stumps had obviously floated in, a phenomenon that’s accepted up and down the river.

It floated in on some subsequent rise and had attached there.

While you have raised the question of forest, we find with exception to these dead trees, which we didn’t find, we never could locate, and they found them.

Unknown Speaker: If in fact, trees of that age had grown in that spot then your theory would be erroneous, wouldn’t it?

Mr. Mitchell E. Ward: No, sir.

Because it would've been impossible because they grew in an area which by subsequent maps the 1882 survey, Mississippi River Commission, we call the MRC Survey, the 1894 survey, they show subsequent shows -- survey show that this area was in the bed of the river, (Voice Overlap).

Unknown Speaker: Well, as I see it, but --

Mr. Mitchell E. Ward: Otherwise, we would have to disregard those facts.

Unknown Speaker: Well, yes.

But my question was if those trees had in fact grown where they were found of that age then all of your evidence is wrong, isn’t it?

Mr. Mitchell E. Ward: No, sir.

No, sir.

I wouldn’t agree to that because --

Justice Potter Stewart: It can only -- in other words, they could've been on the bottom of the river or the trees wouldn’t have grown there.

You assert -- assume with me if you will, contrary to what you strenuously represented to be the facts that the trees in fact did grow in those spots for 84 years, a hundred years, whatever it was year old trees and had they grown there, then your theory as to the historic facts would be mistaken wouldn’t it?

Mr. Mitchell E. Ward: I would have to say yes, I would have to assume first that the river -- that the land was at that elevation.

Justice Potter Stewart: Right.

Mr. Mitchell E. Ward: And that all of these subsequent maps were all wrong.

Justice Potter Stewart: That’s right.

Mr. Mitchell E. Ward: And that was a part -- yes, the Judge O’Sullivan made that all of the witnesses for Arkansas found fault with these ancient maps wherever they did not agree with that theory.

And that was a way they wash the maps out because he said it doesn’t agree with our theory.

Out there, it’d been that the -- why stand there theory being that the group but I can’t get over the fact that there are moss on one of the roots there which would be evidence if they --

Justice Potter Stewart: Alright.

I just wanted to be sure I understood the significance of the evidence, so is your answer yes that if the trees had grown there, your theory would be mistake?

And all the maps would be mistaken and all the evidence and all the other evidence upon which you relied?

Mr. Mitchell E. Ward: Yes and all the maps and all the way to the Mississippi River Commission.

Justice Potter Stewart: Right.

Mr. Mitchell E. Ward: And all of that reports to Congress and so forth.

Justice Potter Stewart: Right.

I just want to be sure I've understood the significance.

Mr. Mitchell E. Ward: Yes, sir.

In 1882, and this would bear on the question that has just been asked, in 1882 the Mississippi River Commission made the first -- the definitive control survey of the Mississippi Valley, this was done with great care.

It was done on -- tied in with trigonometry, it was tied in with longitude and latitude and they got the elevations and my time is running short, I do want to save a minute but those surveys showed this was just a dry sandbar with no vegetation on it.

Chief Justice Warren E. Burger: Mr. Drew.

Argument of William H. Drew

Mr. William H. Drew: Mr. Chief Justice, may it please the Court.

The State of Arkansas will agree with the State of Mississippi on the law.

Apparently, there is no contest of the law involved.

It will be merely a fact -- factual situation that if Luna Bar or Luna Island is the product of an accretion then of course the evidence is that the river and the thalweg was west of it.

If it however did not imperceptibly move, then the theory of the State of Mississippi and it being in the State Mississippi would be incorrect.

To go a little further, the State of Arkansas conceded that in its inception that the State of Mississippi raised a prima facie presumption that the river did migrate, it did not concede that the river did in fact migrate across.

By the testimony of Mr. Kolb -- Dr. Kolb and the witnesses for the State of Mississippi, we conceded that they raised the prima facie presumption that under normal circumstances and accepted principles there is a westward migration of the river and had been way of this type, however, in the accepted situation, we do not necessarily agree it occurred at that time, in fact we think the evidence is quite contrary.

We agree that there are many recorded maps and one particular map of -- was -- the defendant’s exhibit number 8 which was a map of the -- I meant, ownership map of Washington County, Mississippi in 1871.

This map does not bear out the contention of the State of Mississippi in any way.

Appendix -- the map of 1863, Lloyd’s map, and I believe it’s the 9th exhibit in Judge O’Sullivan’s report.

There is an accretion to the northern side of Carter Point but this is not the location of Luna Bar or Luna Island, it is to the north and completely distant by two to three miles.

The -- had the rift in 1971 all of the maps and we commenced with the Government Land Office Survey of 1823 on the Arkansas bank, 1830 on the Mississippi bank.

From those points on there is no divided channel in Spanish Moss Bend.

This goes through the Humphreys and map 1861 which was the general reconnaissance map used by General Grant in the conquest of Vicksburg.

There is no divided channel all the way through in 1871 based upon the maps from the Library of Congress and the Senate and the other maps and also the defendant’s exhibit number 8 of Washington County.

In 1872, there is a divided channel apparently based upon the maps of Mr. E. A. Douglas who was apparently commissioned to show the breaches in the levee and to get congressional assistance in this area.

Immediately, west of Luna Bar, there is about a mile or so of levee that are breached, the report of Mr. -- of General Humphreys is that this levee was breached there but the waters were not going to the tinsel bottoms but were passing back to the main channel of the river.

Mr. Smith, in behalf of the State of Mississippi, deduced that the caving in the bank above Columbia was in Spanish Moss Bend.

The history of pre-Columbia was the first county seat of Chicot County.

It did in fact washed into the river and caved away and the county seat was subsequently was afterward removed.

Columbia no longer exists even in any way because it all went into the river and its some several miles south of there.

Be that as it may, in 1872, the map of Mr. Douglas, if we will take the -- and assume that the projectile like, the little marking over there is the Mississippi bank or is Luna Bar would be its first appearance.

However in 1873, there isn’t any question as to the appearance of Luna Bar or Luna Island.

Major Sutter (ph), commissioned by Congress made a quick reconnaissance of the river.

He was making this reconnaissance due to the vast flood damage and to make a report to Congress for assistance therein.

Major Sutter in his map of reconnaissance which would be defendant’s exhibit number 12 clearly set forth a bar in the river, he clearly wrote legend, Spanish Moss Bend in the eastward channel and shows the thalweg of the river in the western channel.

And going through his entire report he meticulously has put the legend of the name of the Bend even when crowded for space where it apparently originally was.

Unknown Speaker: Mr. Drew when you refer to this various defendant’s exhibits, those are Arkansas exhibits and they're not attached to the Master’s reports?

Mr. William H. Drew: No sir, they are not.

Unknown Speaker: But they are here in the file, I take it.

Mr. William H. Drew: Yes, Your Honor.

Unknown Speaker: Alright.

Mr. William H. Drew: Yes, sir.

So we know that the island came into existence in 1872.

The first hydrographic survey of the river took place in 1879-82, the actual geological survey -- of the surveying and it all took place in ‘71.

The map and it’s -- whatever they’ll show in their own continued on through ‘82.

And at that point, it shows a divided channel.

The Court’s attention is called to the testimony of Dr. Kolb and Mr. Smith and particularly so, sir with reference to the elevations of the island, Mr. Gar (ph) had made a survey line across the island which crosses the north side and is clearly in an accretion area, reference line A to B, C and I believe it goes to D on up to Carter Point.

All of the elevations alluded to by Dr. Kolb and Mr. Smith were based upon the elevations of that reference line and not to the highest recorded elevations of the island itself.

If the Court please, the Court to locate exhibit number -- I believe its appendix A to the Master’s report will note that the original survey lines of 1823 on the Arkansas bank, 1830, the Mississippi bank are shown therein with heavy pencil.

At the distal south, distal end is the island itself, the accretions being the portion to the north.

The reference line crossed over on to the northern portion of the island and not through the higher area.

Based upon the physical maps and what the -- it thoroughly show, there was no accretion to the distal end of Carter Point, exhibit D-A -- 8, ownership of Washington County completely shows Carter point in its original position.

The other exhibits that are made about that time also can reach that same conclusion and therefore we know that the island did come into existence in the year 1872 based upon Mr. Douglas’ map followed by Major Sutter’s.

The -- thereafter there is a divided channel at old time but every Mississippi River Commissions Survey from 1880, the first all the way through to the present time, there is a divided channel around the island.

The State of Arkansas employed Dr. Kolb, excuse me --

Justice Potter Stewart: Since 19 -- although you said a divided channel has existed right up to the present time.

Mr. William H. Drew: Yes, sir.

Justice Potter Stewart: The actual navigable river is down through the Tarpley Cut-off has been since 1935 --

Mr. William H. Drew: Mr. Justice Stewart, the river eastward of that point approximately five miles, there was a channel, a dredge through Carter Point, but navigation did adopt.

However, the river is still active in Carter Point and I mean, in Spanish Moss Bend and has always been I think the testimony will be that only a very small portion of the island was that at one turn during the suit and other times it had both across those channels but there is still a major stream going through (Voice Overlap)

Justice Potter Stewart: They are still flowing on both sides?

Mr. William H. Drew: It still flows, yes, sir.

The State of Arkansas does --

Justice Potter Stewart: Although the navigation is down through the --

Mr. William H. Drew: Yes, sir.

Justice Potter Stewart: -- Tarpley-Cut-off and then since 1938 the --

Mr. William H. Drew: (Voice Overlap) concedes that the navigation is in Tarpley Cut-off.

Justice Potter Stewart: And the levee had been cut-off below it since 1938?

Mr. William H. Drew: And the levee had been cut-off.

However it does not concede that the river is inactive in that area at all.

So it is very active.

Justice Byron R. White: So when is the --

Mr. William H. Drew: Yes, Mr. White --

Justice Byron R. White: Is the river boundary then -- is the river boundary then or that the boundary between the two states now fixed or not?

Mr. William H. Drew: Sir, the boundary between the two --

Justice Byron R. White: If it’s still an active river, supposedly it isn’t --

Mr. William H. Drew: I would see it is not fixed and except for the avulsion that would've taken place in 1872 fixing the channel in the eastern channel in 1872 (Voice Overlap).

Justice Byron R. White: (Voice Overlap) fixed since 70 -- 1872?

Mr. William H. Drew: Yes, sir.

Justice Byron R. White: But if you're wrong, it isn’t fixed yet?

Mr. William H. Drew: That’s correct sir.

Yes, sir.

Dr. Durham and Mr. Spillers made an extensive geological investigation of the island itself.

The strata of the soil, the leveling -- its level across the same strata run uniformly throughout its length that is inconsistent with a -- an accretion such would have bending waves or layers of soil therein as it accreted and moved outward.

Both Dr. Durham and Mr. Spillers also made investigation as to the pre-existing channels that lie westward even of Luna Island itself.

The present channel of the western channel, they made an extensive study therein and found the low lying cypress stumps that grew in place that are lying in the bottom of that bed and also are lying east of the western migration of the river itself.

The evidence, the physical evidence there concludes that there is or was a low-lying area in there.

However, had the river migrated westward as contended by the State of Mississippi, these cypress stumps that are lying east of this westward migration that by ring count or over 250 years old would have been erased?

The State of Mississippi says, “Well, they could have floated in and landed there.”

With the given description of with all just floating the roots are up when you saw them off, they flop up, they don’t sink downward.

However, there was a testimony by experienced foresters; these trees were trees that grew in place their needs, their root systems and all are there.

This is in the western channel and not on the island itself.

On the island itself, in the higher elevation which will be in that south central part on exhibit, appendix A, the high elevation that is recorded much higher than is shown by the State of Mississippi, there are tree stumps of antiquity there or ancient that were located by Mr. Putnam, who is now deceased and Mr. Campson (ph) both experienced foresters, both testified these stumps are from the trees that grew in that spot, they examined them.

The carbon dating of that stump, by Dr. Iddings (ph) which was the tree had been dead -- at the time of its death was 550 years plus or minus 180.

As I understand the carbon dating, the longer the half-life is computed the smaller the figure.

The time element involved and having established a tree of antiquity much greater than the hundred-year period that would be involved herein.

It was not run any longer.

This particular tree was the red mulberry stump, sir that was 84 years old by ring count at the time of its death.

Even without the carbon dating, we know that from the surveys thereafter the 1882 survey the -- the tree mass was there gone and this tree if growing there had been dead at least by that time which was prior to the clever man’s survey.

The other two of those trees: one, a red mulberry and the other a black walnut.

The black walnut was flagged and left in place by Mr. Thompson.

The ring count they are on was 112 years old.

There was no attempt to carbon date yet.

It also had been dead longer than the period of time involved and was of age there.

The other was the red mulberry with 112 years old or some back at the, exactly, I do not recall.

Had the river moved imperceptibly westward as contended by the presumption raised by the State of Mississippi, these stumps could not have existed.

Further, we have the testimony of Mr. Richard Proctor, who is an elderly man that I have known all of my life since I was born and raised between two miles of this part.

Mr. Proctor testified and if you’ll notice his testimony in came it as not solicited but a voluntary thing, that on this island, he was asked a question and he remembered going upon the island and going into a cistern and taking a mink.

We further have the testimony of Dr. -- I’m sorry his name escapes me.

The gentleman with his jury topics who could see Mr. -- Judge O’Sullivan could not however he continued, he found evidence of human habitation in the aerial photographs of the 1930.

Justice Potter Stewart: What kind of a vegetation and in particularly trees are on the -- around the Luna Bar to that?

Mr. William H. Drew: At this time sir?

Justice Potter Stewart: Yes.

Mr. William H. Drew: At this time sir, on the highest elevation on the very top it is a field.

There are approximately 800 acres of land adjacent on the accreted areas that have saw timber and willows that our foresters valued at $500 an acre greater at the stump, there are other species of trees, hardwood that this is quite valuable land.

Justice Potter Stewart: Any red mulberries or white walnut?

Mr. William H. Drew: Yes, sir.

Justice Potter Stewart: There is the evidence they’ve talked in the brief.

Mr. William H. Drew: In the --

Justice Potter Stewart: And the papers here about --

Mr. William H. Drew: The only --

Justice Potter Stewart: -- primary growth and secondary growth and the climax growths.

Mr. William H. Drew: Yes, Mr. Justice Stewart.

Justice Potter Stewart: -- which are unfamiliar terms for me.

Mr. William H. Drew: The --

Justice Potter Stewart: But I don’t (Voice Overlap) --

Mr. William H. Drew: The climax series of trees are all on the higher elevation surrounding the field. On the lower elevation sir, they are only trees of the primary species.

Justice Potter Stewart: But on the --

Mr. William H. Drew: Higher elevations, trees --

Justice Potter Stewart: On a higher elevated plain are there red mulberries and (Voice Overlap)

Mr. William H. Drew: There are only trees of the secondary and primary species on the highest elevation, sir.

And this is one of the things that when the foresters called the Court’s attention to.

The -- not the tree itself and the present living tree and its age but the complete variety of trees that are now growing there is inconsistent with trees with newly formed lands as contended by the State of Mississippi.

The Mississippi River Commission itself in the historical study for the Tarpley Cut-off made a survey, a historical study which is defendant’s exhibit number 32 wherein the State of Mississi -- the Mississippi River Commission itself made the historical study and a map showing the accretions and whatnot from 1880 to date.

There -- historical study also does not support the presumption of the State of Mississippi.

Further, Dr. Fisk in the geological investigation of a Mississippi River alluvial valley and its ancient courses from Cape Girardeau, Missouri to Downing, Missouri, which was defendant’s exhibit number 30, completely supports the contention of the State of Arkansas, completely supports Dr. Durham and Mr. Spillers.

It completely negates the presumption of the State of Mississippi.

In its geological investigation, Dr. Fisk shows the area of the island we were just discussing with the secondary and the primary trees they’re on as ancient course number 10.

In the hierarchy of the years on the ancient courses, they fixed them by centuries, tenth century, eleventh, and twelfth up to the present time, however, they go back to antiquity.

Dr. Fisk also shows that the higher elevation from which the red mulberry, the walnut and all this others were taken as well as the tight forestation as to be in channel number 10 or in existence more than several hundred of years.

We have the defendant’s exhibit number 39 which is a county map of Chicot County prepared by Mr. W. A. Miller (ph), who at that time was the County surveyor who shows clearly the Luna Island Bar area as being it in the State of Mississippi.

It’s the contention of the State of Arkansas that the report by Honorable Judge -- Mr. Judge O’Sullivan is erroneous in that it adopts the depth or the elevation theory of the State of Mississippi on a reference line was aren’t regard to the true elevation of the island from where the physical facts of antiquity were discovered.

Secondly, the map area does not support the contentions in anyway and in fact negates it.

We believe that the State of Arkansas has completely negated the presumption raised by Dr. Kolb or by Mr. Smith with physical factual evidence that makes the fact that this would be a part of Mississippi in impossibility.

We thank you very much sir.

Chief Justice Warren E. Burger: Thank you Mr. Drew.

Mr. Ward, do you have anything further?

Rebuttal of Mitchell E. Ward

Mr. Mitchell E. Ward: I have -- I can’t agree with everything that Mr. Drew has said.

For instance the exhibit by the Master here shows that old the channel completely clogged off and filled with sand which the Court had before it.

The question of forest here, it is not trees that control, it is the question of the forest, the type of the forest.

The testimony here is that this was an alluvial forest and that the growth of trees, there is an alluvial forest of the primary species, they’re still there, 40 years old.

Chief Justice Warren E. Burger: Thank you very much gentlemen.

Case is submitted.

Featured:

Ohio v. Kentucky - Oral Argument

Thu, 23 Aug 2012 18:12:13 +0000

Case:

Ohio v. Kentucky

Media File:

27orig_19730110-argument.mp3

Related Transcript:

27orig_19730110-argument

Transcript:

Argument of Joseph M. Howard

Chief Justice Warren E. Burger: We’ll hear arguments next in number 27 original, the State of Ohio against the State of Kentucky.

Mr. Howard, you may proceed whenever you’re ready.

Mr. Joseph M. Howard: Mr. Chief Justice, may it please the Court.

This is an action by the State of Ohio requesting a determination of the location of its boundary with Kentucky in the Ohio River.

The only question presently before the Court is whether or not Ohio shall be permitted to amend its original complaint.

That original complaint was filed back in 1966.

At that time, Ohio claimed that the boundary existed at the low water mark on the north side of the river, that is on the Ohio side, as it stood in 1792, which was the day at which Kentucky became a state.

Kentucky filed an answer and it claimed that the boundary lay at the present low water mark on the north side of the river on the Ohio side.

That, of course, was much farther up on the Ohio shore than the old 1792 line, because of the new dams which have been put in on the Ohio River beginning in back in 1890, the planning began.

The dams were erected.

I think the first set of them were completed in 1925, and then in the 50’s a new set of high level dams began to be erected by the Army Corps of Engineers, and that caused a much higher level of the water and further inundation on the Ohio side.

Well, the issues were joined on the original complaint in the answer.

And this Court appointed the Master and there were quite a number of conferences between the Master and counsel as to how the case should be conducted and the evidence presented.

There were a great number of conferences apparently between counsels on both sides determining just what the evidence would be.

And in July 1970, Ohio made an offer of settlement.

As I recall, it was 250 feet up into the river.

I may be mistaken on the exact figures on that but that was --

Justice Potter Stewart: That was somewhere between the 1792 line and the present line on the north shore?

Mr. Joseph M. Howard: I am not sure Your Honor exactly what.

I would guess it would have been above the 1792 line.

That’s my guess.

Justice Potter Stewart: The issue originally in this lawsuit was whether or not the low water mark on the north shore was that of 1792 or that of today.

Mr. Joseph M. Howard: That’s right; that's right.

Justice Potter Stewart: And I suppose therefore, I would guess, I will assume that a settlement would fix the line somewhere in between those two?

Mr. Joseph M. Howard: Well, I have not gotten into that part of it yet at all, and I can’t say; I’m guessing that it was closer to what Ohio wanted than what Kentucky felt Ohio should get.

Apparently, from what I can gather from the Master’s comments and from what I’ve seen in the file, counsel on both sides felt that there were some chance that this would be accepted.

At least they were content.

Nobody could tell of course what the Legislatures or the Executive part on either of the States would have done.

So, it had gone just that far that the offer was made.

Unfortunately, the counsel for State of Kentucky, John Browning, who had been handling the case since the very outset was killed in an automobile accident about two weeks after the offer was made.

Ultimately, in November 1970, Kentucky simply rejected the offer.

That was in November.

A little over a month later, the administration in Ohio changed.

A new Attorney General came in and he asked -- well, nobody in was left on the staff who had worked on this case at all.

So he asked that a complete reexamination of the file and everything connected with it be made.

That was done and after about four or five months study, recommendation was made to the Attorney General that an effort be made to ask this Court to permit an Amendment of the complaint in order to permit Ohio to make an argument that it was entitled to a line in the middle of the river.

We didn’t want to go off the deep end on this without checking and we called the Attorney General’s office in Kentucky and asked him to look through Mr. Browning’s files and see whether there was anything that would make it clear that we were in error, that we couldn’t possibly prevail on that argument.

Well, we got no answer from that call.

And eventually we filed the motion to amend the complaint which is pending before the Court at the present time.

That was done in August 1971.

And what we did was to add the first count of the complaint that is alleging that the real boundary between the two states lies in the middle of the river, and then there were some minor alterations in the further parts of the original complaint that is, if the Court disagrees with us on the -- permitting us to amend the or to -- or if the Master were to find against us on the middle of the river, then we would still argue for the 1792 line.

And the third question involved is the question of concurrent jurisdiction, which is I think irrelevant as far as the present proceeding is concerned.

The Court referred our motion to the Master, and that was argued before the Master in December 1971, and in April he filed his report making a recommendation.

That recommendation was that our motion to amend be denied.

The Master’s grounds for that were that the new allegations as to the middle of the river failed to state a cause of action.

He also said that even if we did state a cause of action, our -- any relief for Ohio would be barred by this Court’s opinions in the series of cases discussing the Indiana-Kentucky borderline.

And finally, he said that there were three separate cases in the Supreme Court of Ohio in which it -- which indicated that the State of Ohio acquiesced in those Indiana-Kentucky cases.

Our position is that the new allegations that we had made alleging that the boundary line does lie in the middle of the river clearly state a cause of action.

We also contend that we are in no way barred by this Court’s decisions and the Indiana-Kentucky boundaries.

We were not parties to that, those cases.

And finally that we -- the three particular cases that the Master picked up from the Supreme Court and found to be acquiescence in the Indiana-Kentucky line of cases, do not so hold, and that we are -- that’s the only thing in the case so far that goes to the point of acquiescence, and that outside of that, that point should not be further considered at the present time.

Now, I really have nothing much to add to the arguments that have been made in the brief.

Justice Byron R. White: Well, did the Special Master independently hold that wholly aside from the prior adjudications or Ohio’s reaction to them that Ohio was stopped because of a long silence over a -- with respect to the boundary?

Mr. Joseph M. Howard: Yes sir, he had some language to that effect in his -- in his reports.

Justice Byron R. White: Filing thesis in this Court to support it?

Mr. Joseph M. Howard: No, he didn’t cite any cases to my --

Justice Byron R. White: Well, Michigan against Wisconsin is pretty close too, wasn’t it?

Mr. Joseph M. Howard: Well, yes.

That’s right.

I’m sorry, you are correct.

Michigan-Wisconsin --

Justice Byron R. White: Well, now if he -- assume he was right in that view, but quite wrong in saying that you amend to complaint the state of cause of action.

The complaint nevertheless shouldn’t be -- if you were right on the estoppel point, you still shouldn’t -- that the Amendment still shouldn’t be allowed, should it?

Mr. Joseph M. Howard: I think it should.

In the --

Justice Byron R. White: If you knew as a matter of law that the -- that Ohio would lose, had to lose because it stopped.

Mr. Joseph M. Howard: Well, how do we know that?

Justice Byron R. White: Well, because I just assumed it.

I assumed -- I say assume the Master was right in his ruling here which he -- of course if he is wrong in that ruling, then there’s something -- that’s something else again, but if he is right in that --

Mr. Joseph M. Howard: If we were -- I would agree with that.

If we were sure that we were wrong --

Justice William J. Brennan: Well, didn’t the Master at Page 15 expressly say and on the basis of Kentucky’s open and continuous assertion and exercise of dominion to that point without formal objection by Ohio for more than 150 years?

Mr. Joseph M. Howard: I don’t know where he got that except from the brief that was filed by Kentucky.

The only thing that is in the case at the present time is our amended complaint and that says nothing about acquiescence one way or the other.

That’s an affirmative defense that Kentucky has to raise.

So far, they haven’t even had the chance to raise it because this Court has not granted the permission to us to file a complaint.

That statement is without any support in the record at all.

And of course we do not agree to it.

Justice William J. Brennan: I gather from what you said, the proceedings from -- before Judge Foreman were limited simply to an oral argument?

Mr. Joseph M. Howard: That’s right; that's right.

Justice William J. Brennan: No facts --

Mr. Joseph M. Howard: No facts.

Justice William J. Brennan: -- related or taken or anything else?

Mr. Joseph M. Howard: No facts.

Justice William J. Brennan: Just on the face of the amended complaint.

Mr. Joseph M. Howard: That’s rightl; that's right.

Justice William J. Brennan: Where does the fact of the 150 years acquiescence in the dominion of Kentucky?

Where does that come from?

Mr. Joseph M. Howard: It comes from one of the Kentucky’s briefs.

Justice Potter Stewart: It’s based, however on, isn’t it on Ohio Supreme Court decisions at least in part of which --

Mr. Joseph M. Howard: Well he --

Justice Potter Stewart: Of which the Special Master could take judicial notice of?

Mr. Joseph M. Howard: He can take judicial notice, that’s right; that’s right.

But of course our position is that he misread those cases.

Justice Potter Stewart: Yes, I understand that.

Mr. Joseph M. Howard: They were not talking about the middle of the river at all or anything of that sort.

They were talking only about the margin of the river that is between the low water mark and the bank.

Justice William H. Rehnquist: Is it your position Mr. Howard that the issue of acquiescence over a period of 150 is basically a factual one that you would --

Mr. Joseph M. Howard: Yes.

Justice William H. Rehnquist: -- want to call witnesses on and have a factual determination --

Mr. Joseph M. Howard: That’s right.

Justice William H. Rehnquist: -- of rather than just a legal one?

Mr. Joseph M. Howard: That’s right.

It could be a legal one if there were some action on the part of the -- for instance of the Governor or the Legislature of the state which actually did acquiesced or as, as in the Indiana cases, there was a contact between the two states.

Justice William H. Rehnquist: But if the Master is right in saying that this Court’s decision and Handly’s Lessee although not res judicata as to Ohio.

The rational requires the same holding as to the Ohio-Kentucky border, then that would be a legal determination quite apart from any acquiescence, would it not?

Mr. Joseph M. Howard: Well it would, but of course the Court had the same thing in the submerged lands cases.

Remember the California case was the first one.

And that was followed up by the two from Louisiana and Texas in which the contention was made that those Courts were bound by the decision made in California, but the Court directed full hearings on it, and the same thing is before the Court right now in the Continental Shelf cases.

Those also depend on the original California submerged land case.

Justice Byron R. White: The holding of Handly's would have to be overruled?

Mr. Joseph M. Howard: Yes, it would.

Not the holding of the case but the dictum in the case would have to be overruled.

Justice Byron R. White: The rationale?

Mr. Joseph M. Howard: Well --

Justice Byron R. White: The reason it would give a judgment to the winner of that case would have to be --

Mr. Joseph M. Howard: No sir, because the reason that land was above the high water or the low water mark anyway, and there was no reason for the Court saying anything about the middle of the river.

He could have decided it simply by saying that this land lies between the low water mark on the north side and the Indiana bank.

Consequently --

Justice William J. Brennan: Apparently, at the very least, we have to disapprove or reject that the tell us the statement at page 5 from Handly, wouldn’t it?

Mr. Joseph M. Howard: Yes, sir; yes sir.

Justice William J. Brennan: But when as in this case ones there is a recent proprietor to --

Mr. Joseph M. Howard: Yes, sir.

Justice William J. Brennan: That would have to be rejected, disapproved --

Mr. Joseph M. Howard: That’s right.

Justice William J. Brennan: And that is the reason they gave the court between their judgments.

I mean there is another reason and that is the reason they gave.

Mr. Joseph M. Howard: Yes, that’s the reason they gave, yes.

Of course, our position is that Chief Justice Marshall was a Virginian of course and nobody raise this question of where the boundary line lay, was it in the middle of the river or the north shore, so he didn’t even go into it.

Later on, when question of title came up in the Worcester versus Georgia case, he had to go into it very thoroughly.

And what he said there is in direct conflict with what he said in the Handly case.

I really think -- I would just be repeating what I have said already if I go through, because the questions that have been addressed to me had brought out the main argument that we are making.

Chief Justice Warren E. Burger: It’s always a good time to stop, counsel.

In addition to it, it’s lunch time.

Mr. Joseph M. Howard: Oh, right. [Laughter]

Chief Justice Warren E. Burger: Mr. Famularo.

Argument of John M. Famularo

Mr. John M. Famularo: Mr. Chief Justice and may it please the Court.

Mr. Howard has fairly stated the facts and history of this case.

However, we wish to emphasize two points at this point.

First, we wish to point out that Kentucky did challenge the sufficiency of the allegations to state a cause of action, but that we did not do this in the form of an affirmative defense.

We rather raised it as a point of law, much as in common law demurrer, and that point was that the allegations of the State of Ohio are immaterial, that is, if they are true, they in no way change the boundary which was established by Congress long ago based upon the session of Virginia and the acts of Congress thereto.

Secondly, we wish to point out that in the original complaint of 1966, the State of Ohio conceded that the boundary between the states of Kentucky and Ohio was the low water mark on the northern shore as that mark existed in 1792.

They further conceded that the states involved in the Handly Lessee versus Anthony case, that is, Indiana and Kentucky, should control as between Ohio and Kentucky based upon the identical title relationship of the parties.

Thus, they recognized that Handly was controlling and should control as between Ohio and Kentucky.

And they have recognized this for more than 150 years since the decision in Handly.

At least it has been recognized to the extent that they were judicially aware of Handly, and yet have set by inactively for a period of at least 150 years until the amendment is now sought attempting to establish the boundary in the middle of the river.

We submit that the recommendation of the Special Master was correct for two basic reasons.

The first reason is what we refer to as the immateriality of any alleged defect in the title of Virginia where the boundary was clearly fixed by Congress based upon the session of Virginia and the acts of Congress.

Secondly, we submit that the Special Master’s recommendation was correct due to the judicial admissions found in the 1966 pleadings and the judicial and historical acquiescence upon the part of Ohio which is undisputed.

Let us briefly deal with the first allegation.

Ohio claims that the boundary is in the middle of the river now, based upon and alleged defect in Virginia’s title due to various pre-revolutionary war documents and actions by the British Crown.

We submit that after the Revolutionary War, all of the territories situate within the United States was a part of the United States and any claim are derivative claim of the British Crown was clearly extinguished by the results of the Revolutionary War.

Once Virginia ceded the land, situate lying and being to the north of the River Ohio for the sole purpose of creating new states and once the Sovereign United States accepted this session and the terms thereof and recognize the sovereignty of Virginia over the entire river, any defect in that title to the land north of the river is clearly immaterial.

The only two parties involved, the Sovereign State of Virginia and the Sovereign United States based upon the negotiations involved, recognized that the boundary was to be on the northern shore.

Certainly, they had the authority to act and did so.

And the boundary was clearly established as residing within Virginia on the northern shore and all the land south of the river.

This was determined long before the State of Ohio was ever created.

And Ohio was in no position now to vindicate the rights of the province of Quebec or to vindicate the rights of the Indians.

It can only vindicate any rights that they’ve acquired since they became a state.

And we submit that clearly the boundary was determined based upon the acceptance of Congress of the Virginia session.

It is that law that is the law of the Sovereign United States which must govern this boundary dispute and not the law of any foreign political entity.

The Special Master has not rejected this as Ohio claims and if indeed it -- Judge Foreman did, this Court can certainly hold otherwise.

We submit that the session of Virginia and the legislative enactments did indeed become the subject of judicial interpretation.

In Handly’s Lessee versus Anthony, the Supreme Court judicially recognized and accepted the legislative enactments involved and resolved the boundary dispute reasoning to the language of that session of Virginia itself and also to the acts of Congress involved.

Chief Justice Warren E. Burger: Now, correct me now Mr. Famularo if I’m confused.

Isn’t the central issue here whether an amendment should be allowed at this time?

Mr. John M. Famularo: This is true Mr. Chief Justice.

Chief Justice Warren E. Burger: Hasn’t the Court historically been rather generous in allowing amendments particularly in actions between the states?

Mr. John M. Famularo: Certainly, the courts have been lenient in this regard, Your Honor.

However, we submit that they had not been lenient in this regard where indeed the factual allegations taken upon the sufficiency of their face do not establish as a matter of law or cause of action.

And we submit that any alleged title defect in Virginia’s land, as we have previously pointed out in our argument so far, is clearly immaterial and to tie up the Court and to bring in such an immaterial claim would in no way resolve the matter or would in no way achieve the expediency which the Court strive for.

Chief Justice Warren E. Burger: Do you have anything to suggest about the scope of the factual matter that would have to be dealt with if an amendment should be allowed?

Mr. John M. Famularo: Without going outside the record, Your Honor, I think it suffice it to say that it would be a totally and completely burdensome task.

It would, in all likelihood, truly involve a counterclaim as what’s suggested in the hearing before the Special Master.

This, in itself, would be an onerous task in trying to compute all of the expenditures overall of the years.

And where the allegation is completely immaterial as we submit it is, we submit that this Court should not consider this and should not be burden with this task and the Special Master correctly so held.

Justice William H. Rehnquist: Really, what the Special Master did here was tantamount to allowing a motion to amend the complaint and dismissing the amended complaint for failure to state of claim for relief, wasn’t it, because it was legally barred?

Mr. John M. Famularo: Yes, this is correct Mr. Justice Rehnquist, basically what the Special Master did was that reasoning more to the theory of acquiescence than to our initial theory here of the immateriality of any alleged defect in Virginia.

Chief Justice Warren E. Burger: But, it was sort of a demurrer approach, was it not?

Mr. John M. Famularo: Yes, it was Your Honor.

Chief Justice Warren E. Burger: And then he acted on that theory.

Mr. John M. Famularo: Right, he stated the theory of acquiescence to give validity to this argument and to set forth the rational.

However, such --

Justice Potter Stewart: Well, I suppose the -- it’s a little hard to conceptualize in a normal lawsuit, let's say, bring a file a complaint and alleging a promise without consideration to give me a thousand dollars.

Well, as a matter of law that doesn’t state a cause of action upon -- on its face because there was no consideration and no action of reliance and so on.

You could still file that complaint but it would be dismissed I suppose on a motion to dismiss or on demurrer?

Mr. John M. Famularo: This is true, Your Honor.

Justice Potter Stewart: Assuming all the facts to be true.

It simply doesn’t state a cause of action under the law.

Mr. John M. Famularo: This is true Mr. Justice.

Justice Potter Stewart: And here assuming all the facts to be true.

It doesn’t state a cause of action under the law, the law in this case not being the general law, such as the law of contracts, but the law that the boundary between Kentucky and Ohio is the low water mark of the northern side of the Ohio River.

Mr. John M. Famularo: That is basically our contention.

Justice Potter Stewart: But it still, I suppose that the complaint as a release to the technical, logical, symmetrical matter should have been allowed to be filed, shouldn’t it?

Just as I can go in to the court, a trial court and file an action alleging a promise without consideration to pay me a thousand dollars and maybe absolutely no good. It may not state a cause of action because there was no consideration or its equivalent but nonetheless I can file a complaint, can I?

Mr. John M. Famularo: Yes Mr. Justice, subject to the demurrer.

Justice Potter Stewart: Subject to a demurrer or a motion to dismiss.

Mr. John M. Famularo: Subject to the motion to dismiss.

Justice Potter Stewart: Right.

Mr. John M. Famularo: However, it must be --

Justice Byron R. White: You said a while ago that according to your case was that as the matter of law, even accepted the allegation as true that the dedication by Virginia been accepted by the United States as a matter of law ended the matter.

Mr. John M. Famularo: This is true.

We are making that statement, and we submit --

Justice Byron R. White: That is what the Special Master held, that was it.

Mr. John M. Famularo: He did not reject this theory.

Justice Byron R. White: Well, he did it on all of the (Inaudible)?

Mr. John M. Famularo: No, it’s not.

He based his upon the theory of acquiescence.

However, we submit that he did not reject this theory and clearly the --

Justice Byron R. White: Well, perhaps it’s that -- perhaps in the holding of the ground that we just discussed just this moment, shouldn’t you complaint that that have been allowed to be filed, to be amended?

Mr. John M. Famularo: Since this was an original proceeding Mr. Justice White, I think the technical rules actually are not followed and this Court looks to them for guidance, if indeed this were the typical lawsuit between the average parties then in all likelihood exactly what you’re saying would be correct.

But in the original proceeding where the Court strives to get the issues before it and tries to eliminate any burdensome issues, which we submit that the boundary in the middle of the river clearly is, it should be rejected and this forms the basis of our contention.

Justice Potter Stewart: There was a case, I just have remembered argued about my second to third day here in the Court back 1958, it's reported in 358 U.S. Page 64, California against Washington, and that was an argument on a motion to file a bill of complaint.

Now, that's a very short per curiam judgment, the motion for relief to file a bill of complaint is denied, and then the Twenty-First Amendment of the Constitution is cited, Section 2 of that Amendment along with three or four or five decided cases under the Twenty-first Amendment, i.e. on the merits of the case that we did not allow the complaint to be filed, and the cited cases go into the merits of the complaint rather than allowing the complaint to be filed and then dismissing it on the merits pointing out that might be a practical --

Mr. John M. Famularo: I think that is -- that's a sound --

Justice Potter Stewart: That’s 358 U.S. Page 64.

Justice William J. Brennan: Mr. Famularo, what is this counterclaim that you mentioned earlier that you would have -- I gather Kentucky you said will have to file if the amended complaint?

Mr. John M. Famularo: Yes, it would be a counterclaim basically for expenditures over all of the years Mr. Justice Brennan in excess of the middle of the river to the far side.

If indeed Ohio --

Justice William J. Brennan: You’d have to make that kind of record in the event that Ohio should prevail and its claim to the middle of the river, is that it?

Mr. John M. Famularo: That’s right.

But would you have to make that kind of record until actually Ohio had prevailed, if it did?

I think to protect the record of the case and to protect our interest, once the amended complaint is allowed to be filed and as a protective device for the common law of Kentucky --

Justice William J. Brennan: Well, you would file the counterclaim I gather, but would you have to try it until the issue of the location of the boundary line is settled?

Mr. John M. Famularo: Would we have to try the counterclaim?

Justice William J. Brennan: Counterclaim, yes.

Mr. John M. Famularo: No, in all likelihood we would not because of the expenditures would be for the area line north of the river and to the northern shore.

Justice William H. Rehnquist: Mr. Famularo, to take Justice Stewart’s hypothetical a moment ago, in a common law of Court where you file a complaint that doesn’t state a claim for a relief as an amendment, but the Court simply denies relief to file it, then and you appeal, and on appeal, the court were to say, well he should have been given leave to file his complaint, but we see that it doesn’t state any state of claim that we would grant relief even conceding the facts, would the Appellate Court do you think reverse and say, even though it would have done in no good, you should have been allowed to file a complaint of whether to affirm on other grounds?

Chief Justice Warren E. Burger: It seems to me that that to reverse and say that they should have been allowed to file would be going around the circle of the matter.

It seems more critical that the Court should and could look to the facts and take judicial notice of any undisputed facts that are in the record and prohibit such a proceeding from developing, and I think this is exactly --

No but do you think doesn’t that deprive the Trial Court of its inherent right to permit an amendment to the complaint?

Inherent power, I should say.

Mr. John M. Famularo: Well certainly --

Chief Justice Warren E. Burger: Obviously, it’s an economical and an efficient proceeding, but litigation isn’t always efficient.

Mr. John M. Famularo: Certainly, the right of the Trial Court to grant an amendment Mr. Chief Justice would be infringed upon how that right is not absolute and there are various motions to be filed for leave of court in which the grounds are spelled out, and certainly this Court is aware.

After the responsive pleadings are filed, and that if that motion or if that attempt to file the amended complaint shows that as a matter of law nothing would be accomplished by it, I don’t think the rights of the Trial Court in this regard are so abruptly encroached upon that as a matter of expediency such could not be held to be dismissed.

Chief Justice Warren E. Burger: But the very holding of the reviewing court in this common law hypothetical case, the very theory of the Appellate Court’s action might put the parties, the party on notice as to how he might appropriately amend his complaint.

Mr. John M. Famularo: This is true.

However, if I had the language of Mr. Justice Stewart’s case before me, I might be better able to answer this question.

Not having it, I can only again state that I think for expediency in a matter especially in an original proceeding --

Chief Justice Warren E. Burger: I suppose that one basic difference is that we, unlike an appellate court in a state common law system, have plenary power.

We are the original court here.

Mr. John M. Famularo: That’s true.

The uniqueness of the original proceeding is something to be considered in this case.

Justice William J. Brennan: Well often though that cuts when the controversies between two states as the Chief Justice suggested earlier, to give considerable attitude to the States to have their claims determined when the controversy with the sister state.

Mr. John M. Famularo: This is true Mr. Justice Brennan, but we submit that in a close examination of the facts before this Court as little as they may be at this point.

The pleadings themselves establish as we have pointed out that any defect in the land lying northwest of the Ohio River is immaterial.

Justice William J. Brennan: Would you say the same thing if you were defending of the recommendation of the Special Master on the basis of the acquiescence in which he relied?

Mr. John M. Famularo: I am going to get into that right now and we will say the same thing.

We think that the Special Master was correct in applying that based upon acquiescence of the State of Ohio that the motion for leave to deny should be -- the motion for a leave to amend should be denied.

Justice William J. Brennan: The acquiescence consisting number one of a 150 years, number two of the concessions made in the original complaint?

Mr. John M. Famularo: Exactly, those two things.

The judicial admissions made in the 1966 pleadings, the inactivity of over 150 years by the State of Ohio, while Kentucky has continuously exerted control over the river in all of its dealings, although they are not specifically a part of the record.

Moreover, Kentucky’s legislature as early as 1810 attempted to alleviate the problem as to the boundary questions before Handly’s Lessee was even decided.

Yet, Ohio’s legislature apparently has made no such attempts.

For 150 years, Ohio has been satisfied and being aware of the judicial determination in Handly’s Lessee versus Anthony and Indiana versus Kentucky, but yet has made no attempts to clarify that insofar as it relates to them.

Now they claim that they are not a party to -- that was litigations and therefore they’re not bound by them.

Before getting into the Master’s acquiescence theory, I would like to briefly respond to that allegation.

To say that they are not bound by that in the strict sense is correct.

They were not a party.

However, we submit that such a contention is certainly undermined by their judicial admissions.

Certainly such a contention is undermined by the lapse of time involved and finally such a contention is undermined by the holding of the Special Master that such a contention would create a checkered river contrary to the intentions of Congress and the intentions of the State of Virginia and would be totally in ascertainable.

No one would no where the boundary would be.

Based upon that, we submit that Ohio cannot claim that she was not a party.

And finally --

Justice Byron R. White: How would a checker or checker border or however you described it to result follow, wouldn’t you have one rule on the Indiana border and another one on the Ohio land?

Mr. John M. Famularo: Well, this would be true but on the river, it would be extremely difficult to ascertain where the boundary of Ohio stops or where the boundary of, let’s say, Illinois or Indiana starts.

For the average fisherman or the average tugboat operator or the average beer distributor on the river and restaurant attached to the dock, it would be hard to ascertain which is Ohio and which is Illinois, and such would be a checkered fashion.

Justice Byron R. White: Isn’t that true in Mississippi between Illinois and Missouri?

Would it just be as hard there as here?

Mr. John M. Famularo: It would be, but such does not make the result anymore correct.

Finally, we submit that the report of the Special Master was correct in recommending that the motion for leave to amend be denied based upon the judicial admissions and based upon the judicial and historical acquiescence upon the part of the State of Ohio.

Ohio’s court --

Justice Potter Stewart: Of course then both the acquiescence and the judicial admissions in this case, I suppose, were to place under the authority of this Court’s decision in Handly’s Lessee, not that Ohio was a party to it but the rational of that case was very, very clear.

Now, this Court in the past has reconsidered the earlier decisions.

This is the only Court that Ohio can bring a lawsuit against Kentucky in.

This is a case not only about original jurisdiction but over an original and exclusive jurisdiction.

There is no place else that Ohio can go for relief.

Certainly the Master, in this case, is going to consider our existing decisions controlling, but shouldn’t Ohio have an opportunity to ask us to reconsider the rationale of previous decision?

After all, it wouldn’t be making history for us to do that and to reconsider previous decision and overrule it.

Mr. John M. Famularo: We submit that Ohio based upon its long delay and more importantly based upon the continuous dominion by the Commonwealth of Kentucky should not be allowed at this point to change its total theory.

Justice Potter Stewart: Well, this was all done, all this acquiescence and all this delay and all this judicial admission was done under the compulsion of Ohio’s understanding of the existing law in this Court.

But shouldn’t Ohio be given an opportunity to ask us to reconsider and review the existing law and may be find that it was erroneous in the first place.

Mr. John M. Famularo: Well, we submit that such should not be done, Your Honor based upon --

Justice Potter Stewart: Without a solid historic foundation.

Mr. John M. Famularo: We submit that such should not be done based upon our first argument that even if they have this attempt that it will fail as a matter of law as the Special Master held to state a cause of action.

Justice William J. Brennan: Not because of any decision to this Court, but because of the action of the Congress --

Mr. John M. Famularo: That’s right.

Justice William J. Brennan: -- in accepting the decision.

Mr. John M. Famularo: And in no way has that reasoning been detracted from by any decision.

In fact it was reaffirmed in Handly.

Justice William J. Brennan: Well, I know but in Handly’s that was the interpretation given or the effect given the session plus the congressional legislation.

Mr. John M. Famularo: And specifically determined about --

Justice William J. Brennan: I suppose even that could be reconsidered, couldn't it?

Mr. John M. Famularo: The intentions of Congress and --

Justice William J. Brennan: Couldn't it?

Mr. John M. Famularo: I suppose it could be, but again we fall back upon our first argument that that such would be to inject in this proceeding at this time an immaterial point.

Justice William J. Brennan: Incidentally, what’s left of this controversy between Ohio and Kentucky if we accept the Special Master’s recommendation?

Mr. John M. Famularo: If the Special Master’s recommendation was accepted, Mr. Justice Brennan, it would leave the litigation in the State of the original complaint being filed and our answer being filed.

Justice William J. Brennan: You’d still have to resolve this question where the low water mark is, whether it’s 1792 or --

Mr. John M. Famularo: Or whether it’s the present low water mark.

It’s as setup in an affirmative defense in our answer.

Justice William J. Brennan: Yes.

Justice Potter Stewart: What’s the -- may I ask, what is the practical significance outside of criminal and some other jurisdiction, and has gas been discovered up around portions and so on?

Mr. John M. Famularo: Outside of the record, Your Honor, my understanding of it is that, there has been some minerals found in and around the Henderson area which is across of Evansville, Indiana.

Justice Potter Stewart: That’s Indiana, I mean east of the Great Miami River.

Mr. John M. Famularo: The problems of licensing of boats, of licensing of fisherman, hunters, the licensing and taxing, all of these are posing critical questions that need to be resolved in terms of the boundary and its -- the dealings of the Commonwealth of Kentucky we think have been consisted with the boundary at the present low water mark without getting into that at this point.

Certainly, that -- those facts are not part of this record.

Justice Potter Stewart: No, that’s the original lawsuit.

Mr. John M. Famularo: That’s right.

The basis of our acquiescence claim is that this Court can certainly judicially notice the undisputed judicial admission, and judicially notice the undisputed judicial admissions of the State of Ohio and can judicially notice the undisputed historical facts that is the continuous dominion and control over the Ohio River by the Commonwealth of Kentucky and the undisputed delay and inactivity and silence by the State of Ohio based upon the judicial notice of this --

Justice Byron R. White: I thought we heard in the other side that they wanted to challenge that factually.

Mr. John M. Famularo: They do; they do Mr. Justice White.

Justice Byron R. White: Well, then you can’t say undisputed, can you?

Mr. John M. Famularo: What’s undisputed, we submit, is a matter of law.

The judicial admissions as a matter of law we submit speak for themselves and this Court can certainly judicially notice them.

The historical facts at least insofar as we have stated, that is, the continuous dominion by the State of Kentucky and the silence by the State of Ohio is an undisputed fact and this Court can certainly judicially notice that and --

Justice William H. Rehnquist: Well supposing we can judicially notice it.

Does it amount to anything to more than saying you have a great deal of evidence which would clearly be submitted -- admissible in support of your view as opposed to being conclusive on Ohio?

Mr. John M. Famularo: Well, certainly we submit that it is more than enough evidence to establish that any attempt of Ohio to now say that the boundary is in the middle, is improper at this time.

Be at by motion to dismiss or whatever.

We submit that these theories and that this undisputed facts clearly substantiate our views.

And as a matter of law entitle the Commonwealth of Kentucky to a ruling at this point that as a matter of law, they fail to state a cause of action.

They cannot be overcome.

True, Ohio may have many other facts that they can introduce.

However, those facts can in no way, we submit, overcome, that which is already been transpired in the past.

And again we fall back upon our first argument Mr. Justice Rehnquist that the expediency of this matter in the original proceeding should attempt to prohibit and avoid any such circumvention of the most direct route.

Based upon this, we submit that the finding of the Special Master was correct insofar as it denied the motion for leave to amend.

Chief Justice Warren E. Burger: Thank you Mr. Famularo.

Mr. Howard.

Rebuttal of Joseph M. Howard

Mr. Joseph M. Howard: Yes, sir.

May I say just -- make just a couple of points on the estoppel and acquiescence.

That question was raised in the United States versus California, the first Tidelands Oil case.

California claimed that the United States was stopped from claiming title to that three-mile belt of the California coast.

It claimed that the United States have acquiesced in California’s claims of title for years.

Nevertheless, the Court’s opinion written by Mr. Justice Black, refused to accept that argument and discussed it at some length.

I think that is -- seems to me to be controlling in this particular case.

The other point is, recently there have been a number of bridges constructed between Ohio and Kentucky.

They were the subject of contracts between the two states.

The contracts provided that Kentucky would pay for the bridge up to the low water mark on the north side of the river and Ohio would pay for the rest of it.

That’s on the Ohio side.

But, the contracts also provided that nothing said therein should be determinative of where the boundary line lay.

That shows that Ohio was still maintaining its position that the boundary line was not at the low water mark.

Justice Potter Stewart: Well, I guess those contracts were written after the amended complaint and this case was offered, weren't they?

Mr. Joseph M. Howard: I think some of them were written prior to that time Your Honor, I am not sure of that.

I know some of them have been written after.

Justice Potter Stewart: Could you -- as I understood your -- what you told us about the history of litigation -- this original complaint was filed when, back in 1965?

Mr. Joseph M. Howard: 1966.

Justice Potter Stewart: 66 --

Mr. Joseph M. Howard: Yes.

Justice Potter Stewart: Then by reason of a change of administration or other reasons, people in your office looked at it and there was nobody familiar with it and you began to study of it and then and only then back four or five years after the original complaint was filed that this theory was discovered or evolved or of whatever that, there was a basis of the amended complaint and that that was the first time I --

Mr. Joseph M. Howard: May I say that the prior administration was familiar with this argument.

Justice Potter Stewart: With the argument?

Mr. Joseph M. Howard: That’s right.

They were familiar with this, they had the Vinton argument made to the General Court of Kentucky back in 1848, which has been mentioned right at the end of our brief and is the best statement of Ohio’s position.

They had that at that time.

They didn’t have any faith in it.

They did not think that because of the length of time that had passed that they would be able to prevail on this Court to permit them to go ahead with that argument.

We examined it and we take a different view of it.

That’s all.

It's two different sets of lawyers looking at it and deciding what should be presented to the Court.

But I think, I am not quite sure about those contracts but I am pretty sure that there were some of them that were written before 1966.

Justice William J. Brennan: What kinds of proofs would you have in mind to offering in support of the middle of the river line?

Mr. Joseph M. Howard: Well, we have lined up all the documentary evidence, which shows to me conclusively that Virginia had no title on the north and the west side of the river.

Consequently, the doctrine that Chief Justice Marshall laid down in the Handly case did not apply at all.

He said that if one state owns both sides of the river and gives up one side, it retains the entire river.

But if two states own the opposite sides of the river, then their boundary runs to the middle.

Now, those documentary proofs, what happened prior to the time of the revolution show that Virginia regardless of what their original claim was, under the charter no longer had any title on the north and west side of the river.

The title was in the British Crown.

It was reserved for the use of the Indians and at the time of the revolution upon the Declaration of Independence, that claim passed directly to the United States.

Not to any of the individual states at all, because they had no claim to it at that time.

Justice William J. Brennan: Well, what about the acts of the Congress in recognizing this and accepting it?

Mr. Joseph M. Howard: Which --

Justice William J. Brennan: As I understood the Kentucky’s position there had been acts of the Congress in connection with the session by Virginia to the United States.

Mr. Joseph M. Howard: Your Honor, those acts simply mentioned the Ohio River is a boundary.

They say no more than that.

They talk about the lands in north and west of the river and the lands in south and east of it and that’s all.

Justice Byron R. White: Are you -- who owns the -- you have gone to the extent of saying that Ohio belongs to some other declaration.

Mr. Joseph M. Howard: No; no.

No sir, they --

Justice Byron R. White: You are saying that, you argue that Congress accepted the session?

Mr. Joseph M. Howard: Well let’s go back at the time of the revolution.

At the Declaration of Independence, all of the land which was then controlled by the British Crown and which was outside of the boundaries of the states passed directly to the United States under the external sovereignty rule that has been used in the Tidelands Oil cases and is now being argued by the Solicitor General in the Continental Shelf case.

We are -- this position that we are taking here is the same as the position that he is taking in that case.

Justice Byron R. White: Well, isn’t it that United States act was though -- it was as if it acquired the land from the State?

Mr. Joseph M. Howard: The Continental Congress controlled the Northwest Territory right from the start.

They made treaties with all the Indians who were at that time leaving and had occupancy of the territory.

The land eventually came to the United States through the treaties that were made with the Indians.

Every bit of Ohio is covered by a treaty with the Indians.

Justice Potter Stewart: That was the Treaty of Greenbelt, wasn’t it?

Mr. Joseph M. Howard: That was the last one, the latest one.

They were a lot of them before that.

Justice Potter Stewart: The Northwest Territory, I’d always understood, was the land lying north of the Ohio River?

Mr. Joseph M. Howard: That’s true, but there was also a Southeast Territory, which was the land lying south and east to the river, Tennessee and Kentucky.

Justice Potter Stewart: Right.

Mr. Joseph M. Howard: And if you look through the early acts of Congress, that’s all they referred to, the land north and west to the river and the land south and east of it.

Justice Potter Stewart: And it’s your claim there was the --

Mr. Joseph M. Howard: There was never, never any attempt to draw a line in the river.

Justice Potter Stewart: A session by Virginia in 1784 was a --

Mr. Joseph M. Howard: They didn’t have anything to see.

Justice Potter Stewart: -- was a kind of a quick claim deed but it wasn’t --

Mr. Joseph M. Howard: That’s right, they gave up their claim.

Justice Potter Stewart: Whatever it may have, then and you say they didn’t have anything to see.

Mr. Joseph M. Howard: They didn't have -- they had no title, that’s right.

Justice Potter Stewart: I understand your argument.

Mr. Joseph M. Howard: That's right.

Justice Potter Stewart: And that John Marshall was wrong in thinking that they --

Mr. Joseph M. Howard: Yes, sir; yes sir.

Justice Potter Stewart: Right. [Laughter]

Mr. Joseph M. Howard: Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Attorney General.

Thank you.

The case is submitted.

Featured:

Texas v. Louisiana - Oral Argument

Thu, 23 Aug 2012 18:13:15 +0000

Case:

Texas v. Louisiana

Media File:

36orig_19721211-argument.mp3

Related Transcript:

36orig_19721211-argument

Transcript:

Argument of Samuel D. Mcdaniel

Chief Justice Warren E. Burger: Mr. McDaniel, you may proceed whenever you’re ready.

Mr. Samuel D. Mcdaniel: Thank you Your Honor.

Mr. Chief Justice, may it please the Court.

Former governor and senator, Daniel asked me to express to you his regrets that he could not appear and argue this case.

He has been appointed to the Supreme Court of Texas and our Canons of judicial ethics prevent him from appearing in that, but he did handled the case before the Special Master.

The maps which are behind me, one you have an individual map which I have had furnished to the Court, the large map is furnished by Mr. Stockwell, the counsel of Louisiana.

I apologize to the Court that only three of the copies which should be in Justice Marshall, the Chief Justice and Justice Blackmun’s hand, so that all of you can see for reference purposes.

I have all the colored copies that the geological survey offers here in Washington had of the map, the others are reproductions made here.

I will refer to that map some in the later part of my argument.

It’s a duplication of Texas exhibit A47.

As I understand the procedure that is to be followed in this case, there will be no rebuttal, even if I wanted to save time for it.

So, I asked the Court to please ask any questions that you may have, concerning any arguments that Mr. Stockwell has raised in his brief in order that I may have the opportunity to respond to them and I also, unless the Court have some question about it, we will pass over the question of the jurisdiction of course and also the question of whether or not the United States is a necessary party.

Justice William J. Brennan: Where did the idea come from?

You wouldn’t have rebuttal, if you want to say a few minutes.

Mr. Samuel D. Mcdaniel: That was the arrangement that we were told by the clerk, Your Honor.

Chief Justice Warren E. Burger: Meaning the arguments here today?

Mr. Samuel D. Mcdaniel: Yes.

Chief Justice Warren E. Burger: Now, there is some misunderstanding, you arrange your argument as you wish and if you wish to save five minutes for rebuttal, that’s the conventional pattern.

Mr. Samuel D. Mcdaniel: Alright.

Thank you, Your Honor.

I am glad to have the --

Chief Justice Warren E. Burger: I don’t mean to limit you to five minutes.

Mr. Samuel D. Mcdaniel: No, I understand, thank you.

Chief Justice Warren E. Burger: We expect really to make your argument in chief in your --

Mr. Samuel D. Mcdaniel: Yes, I will do that.

Let me commend Judge Wentall, the Special Master, not only because I believe in by far --

Justice William J. Brennan: (Inaudible) got of your 30 minutes.

Mr. Samuel D. Mcdaniel: Yes, I understand.

Let me command Judge for his report which in the great part I speak and support of.

We have one exception that we took two years report.

Really it did, is more of quibble than an exception almost under the facts of the case, I should cover that last in my argument.

I particularly command Judge Wentall and command your use the appendix of the evidence which he has put in the report which is in great detail, discussing the various individual exhibits that he considers to support his findings.

This is a boundary case as you know and it’s over the Texas, Louisiana boundary, blow the 32nd degree of North Latitude which is the boundary in the Sabine River.

Justice Potter Stewart: (Inaudible) you have no rebuttal is that you are the equivalent of the not of the appellant of the petitioner here, but basically of the respondent, aren't you.

You were the plaintiff below, your master did what you wanted him to do with one minor exception.

Mr. Samuel D. Mcdaniel: With one minor exception.

Justice Potter Stewart: And so, this case is reverse from its ordinary posture, the ordinary posture of an appellate case before our Court?

Mr. Samuel D. Mcdaniel: That is correct.

Justice Harry A. Blackmun: (Inaudible) What was the significance of the 32 degree point?

Mr. Samuel D. Mcdaniel: The 32nd degree of North Latitude is the point at which the Sabine River ceases to be the boundary between Texas and Louisiana.

Justice Harry A. Blackmun: Okay.

Mr. Samuel D. Mcdaniel: I’ll discuss the specific language of the boundary in a moment and its significance to the case.

Texas claims by grant from the United States made by act of Congress on July the 5th 1848 and also claims title by prescription and equity assets.

Now, it should be pointed out here I think, because this does bear on the point of whether or not the United States should conceivably be a party in this lawsuit.

The area which is involved in this lawsuit was never a part of the Republic of Texas and is not a part of Texas' historic claim.

We claim purely as a grantee of the United States.

Louisiana claims by theory of agency or osmosis or something to have had prior title in 1848 as a result of the treaty of 1819 with Spain, settling the territory of boundaries of the United States and Spain.

This treaty makes no mention whatsoever of Louisiana.

To Texas, the basic question in the lawsuit is as between the United States and Louisiana on July 5th 1848 who had title to the western half of the Sabine River including Sabine Lake and Sabine Pass.

Justice Potter Stewart: The question is who had title as between the United States and the State of Louisiana, isn’t it?

Mr. Samuel D. Mcdaniel: Yes, Your Honor.

Justice Potter Stewart: There are no other possibilities?

Mr. Samuel D. Mcdaniel: That’s correct, at least certain on it so far is the lawsuit shows, the record in the case shows.

Justice Potter Stewart: As far as either one of them will be on either of this?

Mr. Samuel D. Mcdaniel: That's correct, we contend that Congress never granted the area in dispute to Louisiana and the Louisiana steering of the case in addition to be being wrong because the instruments just don’t grant it to Louisiana, is constitutionally wrong because Article 4 Section 3 gives the Congress the exclusive power to dispose as the territory of the United States and the first senate to the constitution defines the Congress is consisting of the senate and a house of representatives.

And the treaty which acquired property for the United States is an executive action right across by the senate and it cannot dispose the property to one of the states of the union.

The history of the thing starts with the 1803 purchase of Louisiana at a time, when the Westward claim of the Louisiana Purchase was completely unsettled.

Jefferson and many other prominent people thought that the claim extended clear to the Rio Grande.

In 1811, the Congress authorized the formation of the state of Louisiana from the Orleans territory.

Part of the language, the part of the description relative to the case is in the Special Master's report on page 41.

What I’m reading is from the statutes at large, which has a little more in it than the Master quoted.

It reads that the inhabitants of all that part of the territory, are country ceded under the name of Louisiana and then it talks about the session from France.

Contained within the following limits, that is to say beginning at the mouth of the river Sabine, thence by land to be drawn along the middle of said river, including all islands to the 32nd degree of latitude.

The Louisiana constitution of 1812 is in virtually identical language except that it inserts the word if between all and islands and the 1812 act of admission by the Congress, it I believe in precisely the same language, the if is not in yet.

Now, the 1812 act admitting Louisiana as a state is also pertinent it seems to us in another regard because Section 3 of that Act reads this way, that the sub-state, speaking of Louisiana, together with the residue of that portion of country which was comprehended within the territory of Orleans, as constituted by the Act entitling an act directing Louisiana into two territories and providing contemporary governments.

There shall be one district and be called the Louisiana District and that should the established in the said district, a District Court who consist of one judge.

And in the 1850 publication of the statute at large which is the ones, we have down in Texas, there is one of these little marginal squabs here that says, the inhabitance of Louisiana within directed limits, to be authorized to form a constitution and state.

We contend that the Congress of course knew exactly what they were doing and were acting within what was the normal procedure of directing state boundary in the middle of the stream, when they defined Louisiana's eastern boundary up to the 32nd degree of the latitude here as being in the middle of the Sabine River.

It becomes a lawsuit on a controversy because of the 1819 treaty with Spain.

When that treaty was executed after a considerable period of negotiation, the treaty called for the boundary between the two countries to be the western bank of the Sabine, starting at the westward mouth of the Sabine and then up to the western bank.

This treaty was ratified by Mexico in 1828 by the Republic of Texas.

In 1838, the boundary was actually surveyed in 1840-41 by the joint commission of the Republic of Texas and the United States and was marked on the ground.

And that was the extent of Texas' historic claim.

In 1845 of course, we had the annexation of Texas into the Union or its President Polk referred to it in his inaugural address, the reannexation of Texas into the Union.

Now, we don't think that there's anything at all out of the ordinary about the fact that the people who were leaders in this country in the other part of the last century, fully expected that there will be more states organized to the westward of Louisiana, certainly President Jackson and others never ceased their efforts, to get Texas and ultimately they did.

The next act of significance in this controversy is important enough, that if the court will indulge me, I will read it to you, it's on page 42 of the Special Master’s report, it's a resolution not by some pretty functionary of the government of Louisiana, but a solemn declaration of the Louisiana legislature passed in 1848.

It reads as follows.

“Whereas the constitution and the laws in the state of Louisiana nor those of any other state or territory extend over the waters of the Sabine River in the middle of said stream to the western bank thereof.

And it is of importance to the citizens living contiguous thereto and to the people in general that the jurisdiction of some state should be extended over said territory in order that crimes and offenses committed thereon should be punished and wrongs and damages inflicted should be redressed in a speedy and convenient manner.

Therefore, be it resolved by the senate house of representatives of the State of Louisiana in General Assembly convened, first that the constitution and the jurisdiction of the State of Louisiana shall be extended over part of the United States embraced in the following limits (Whenever the consent of the Congress of the United States can be procured there too), there is between the middle of the Sabine River and the western bank to begin at the mouth of said river, where it enters into the Gulf of Mexico and thence to continue along to the said western bank to the place where it intersects the 32nd degree of North Latitude, it being the boundary line between the said State of Louisiana and the State of Texas.”

Counsel of Louisiana argued that this is an assertion of Louisiana’s boundary to the west bank.

We argue the exact contrary that it is an admission by the Louisiana legislature that they did not own the west bank and petitioned to Congress to allow and to extend their boundaries, two only.

Texas passed a similar resolution in the same month of 1848 and sent it to Congress.

Congress denied Louisiana’s petition and granted Texas' petition and on July 05, 1848, passed the Act consenting to Texas to extend her boundary over the eastern half of the Sabine River.

I would like to read out particular language because it is relevant to an argument that I make a little further on.

“Be it enacted and so forth that the Congress consent to the legislature of the State of Texas to extend her eastern boundaries, so as to include within her limits one-half of Sabine Pass, one-half of Sabine Lake and also one-half of the Sabine river from its mouth as far north is a 32nd degree of north latitude.

Now, the Congress apparently realized full well, that Louisiana did not own this area and that the United States did because on page 43 of the master’s report is quoted the report of the Senate Committee own this bill and then the last paragraph appearing on the page says, Mr. Butler asked for the immediate consideration of the bill and briefly explained it's character.

The boundary of the United States it was known embraced the Sabine River and Lake to its western shore.

The boundary of the State of Louisiana extended to the middle of the Sabine.

So that the half of the river and lake to the western shore belonged to the United States and was not included in the State of Louisiana.

Therefore, the boundary of the state and that of the United States was not identical.

The bill before the Senate gives the half of the river beyond the boundary of the State of Louisiana to the State of Texas for the purpose of enabling the later to extend her criminal jurisdiction to the Louisiana boundary.

Louisiana has also argued that all the bill does is allow Texas to extend its criminal jurisdiction, but of course it does more, it allows them to extend their boundary, that is the way they are allowing them to extend their criminal jurisdiction.

And then it concludes Mr. Johnson of Louisiana and Mr. Downs on behalf of the state of Louisiana expressed the acquiescence in the arrangement, which of course were their two senators at that time.

Contrary to the statement in the master’s report on page 9 which I think is in inadvertence, the statement of the second question is the doctrine of acquiescence in prescription applied to the plans of either state and if so, what is his application to the facts of this case.

Louisiana has never pled nor claimed title by acquiescence in prescription in this lawsuit and we contend that on the law, Texas is entitled to judgment confirming her title in the western half of the Sabine River.

Turning to --

Justice Byron R. White: How about -- you are going to talk about the islands then?

Mr. Samuel D. Mcdaniel: I am going to talk about them little later, I will be happy to answer any specific question you had at this time --

Justice Byron R. White: Well, I have the -- i's only claim to the islands by prescription?

Mr. Samuel D. Mcdaniel: Texas claims that the ones in the western half by prescription.

Louisiana does not claim any islands by prescription.

They claim as --

Justice Byron R. White: They claim it as by grant, by the original instrument.

Mr. Samuel D. Mcdaniel: Yes, that is their claim for the islands.

Justice Byron R. White: But not any of them by prescription?

Mr. Samuel D. Mcdaniel: That’s correct, only Texas makes that claim.

Justice Harry A. Blackmun: Are there any islands that straddle the mid-line anywhere?

Mr. Samuel D. Mcdaniel: Yes.

I suppose in a broad sense they are and we concede that a line drawn along the middle of the river when it intersects the line would have to go in the western channel, so that it would leave that island on Louisiana’s side.

But we do not concede that an island completely on the western side of the river over and the western half of the river would be Louisiana’s island.

Justice William H. Rehnquist: Even if it was formed at the time of the 1812?

Mr. Samuel D. Mcdaniel: That’s correct.

Even if they were in existence in 1812.

As a fact, the matter and this is the reason I have said that our exception was more equable.

There are few if any islands presently in the river that was there in 1812. There were very few islands in the river at all.

Now, even most of the ones that are shown on some of these maps are not there.

We feel confident that the ones we are interested in at least we could prove title to that via prescription because Texas had used them and may do so for many years.

Justice Harry A. Blackmun: Incidentally, I take it there has never been any question of the right of Texas or Louisiana for that matter to free access?

Mr. Samuel D. Mcdaniel: No, the treaty admitting Louisiana -- I mean the statute admitting Louisiana into the union in 1812 provides for free ride of navigation to the citizens of the State of Louisiana and all other states and the treaty of 1819 with Spain, if that is of any benefit to Texas and there are some questions where it would be in this context or not and it also provides for a free navigation of the Sabine, even though the boundary is placed by that treaty on the west bank.

The special master on the issue of prescription and acquiescence has detailed a great deal of evidence and even what he details is not all of it.

What I am going to briefly summarize is not all of what he details either.

On maps that he discusses are supported with his finding in favor of Texas.

He discusses 12 mouths by Texas, 18 by the federal government and 31 by Louisiana all which recognized the mid boundary.

This is a typical map.

You'll notice down here in the center of the bottom that says the sale by the US geological survey, at Denver and Washington and the State of Louisiana Department of Public Works, bad moves.

This is their map, the federal government’s map, it is not Texas' map.

Justice William H. Rehnquist: Do you know something about how a map like that was prepared and who actually made a decision as to where this line should go?

You know there may have been a survey hired a couple of years ago that wasn't vested with any decisional authority on the part of --

Mr. Samuel D. Mcdaniel: Well, we don't say that is conclusive, Your Honor, we just say that it's notice to them in their own instrument, but there is a claim here that in the middle of the Sabine River that has existed for many, many years and they have done nothing about it.

Justice William H. Rehnquist: You don't treat it as an admission against interest on their part?

Mr. Samuel D. Mcdaniel: Well, I do not think that when you are talking about acquiescence and prescription, you’re talking about the same thing as an admission against interest in the normal sense.

Justice William H. Rehnquist: You treat it as an evidence of advocacy --

Mr. Samuel D. Mcdaniel: No, no, no, what I am saying is I agree with you that whoever drew the map could not make an admission against interest, they would be binding against the state of Louisiana, it's only an evidential fact.

As to leases, there are 32 Texas sand and gravel and shore leases that go to the middle of the river.

The Master refers to a whole list of Texas oil and gas leases and some pipeline easement.

There are 32 Louisiana mineral leases to the middle of the river and five Louisiana pipeline leads us to the middle of the river.

Both states have closed parts of their respective half of Sabine Lake to Ouster dredging because of pollution.

The Federal rivers and harbors appropriations made to Texas over the years for use in the Sabine have been numerous which the Special Master found to be a Federal recognition of Texas' title.

The period 1852 to 1913 there were 61 such appropriations and the period 1914 to 1969 there were 40 such appropriations.

Texas has participated with the State of Louisiana in erection of eight bridges across the Sabine River which were built to and maintained to and policed to the middle by both States.

Taxes are assessed by both States on pipelines and railroad bridges across the Sabine River on the basis of the division line in the middle of the river and this arrangement has been worked out particularly by Kansas City Southern Railway Company which owned more than one of the bridges across the river with the officials of both States.

Police jurisdiction; both states through their highway patrols and their wildlife officers, patrol to the middle line.

On the map, you will note a long sliver land right off the Port Arthur.

This is Pleasure Island which you probably recall from the Special Master's report, it's an area of 3000 acres which has been reclaimed from the western half of the Sabine River.

That reclamation work started in 1911 and Louisiana has never made one peep about Texas doing it.

Pleasure Island contains a grass course, it contains a Pleasure Pier in Marina, it contains the Reserved Army and marine training station and it contains a part of amusement area, in addition to just having land out there.

It also is reached by a very high span bridge under which large freighters and tankers can sail with sufficient clarity.

Port Arthur is the 12 port in the United States towards seaport in terms of tonnage and Beaumont, which also uses this channel which is right up the Neches river here out of Lake Sabine is the eighth largest port in the United States.

Together, I believe their combine tonnage makes them the fourth largest port behind New York, New Orleans and Houston.

The evidence of prescription as voluminous as it is, in all of these little acts is not merely as strong as four things which I will now detail to Court which seem to me to be very strong on this point.

First of course is the solemn declaration of the Louisiana Legislature which we read a few moments ago, expressly admitting that they do not own the western half of the Sabine River.

That was followed by another legislative act which the Master's report mentions on Page 106 in the form of an appropriation by the Louisiana Legislature in 1857, a $15,000 for improvement of the navigation of the Sabine River condition upon Texas making a like appropriation for a like purpose.

In 1901 we have a judgment of the Supreme Court of Louisiana which has been affirmed three or four times since, holding that Louisiana did not owned the western half of the Sabine River and could not exercise criminal jurisdiction therein.

The facts of the case are somewhat amusing and are pertinent I think.

The De Soto, a Parish Louisiana in Shelby County of Texas both border on the river.

Apparently gambling was illegal in Shelby County of Texas and the retail sale of alcoholic beverages was against the law in the De Soto Parish, Louisiana.

So Mr. Burton hit up on the solution of anchoring his gambling establishment in Louisiana’s half of the River and his whiskey establishment in the western half of the river and rigging up a system of pulley ropes between them so that you could step on a dingy and just pull yourself down the rope over to the bar if you wanted to and get a drink and then come back to the gambling establishment.

The Louisiana officials prosecuted in for selling alcoholic beverages at retail in De Soto Parish, without a license and the Louisiana Supreme Court said that although this was manifestly an attempt to subvert the law, nevertheless Louisiana could not extend its jurisdiction over Texas territory by the means of a rope.

And next time he got caught a year later, he miscalculated the mid-river and they put him in jail.

In 1938, we have several releases, these are discussed on Page 68 to 69 of the master’s report, signed by the Governor of Louisiana which not only call for the middle of The Sabine River, but call for the boundary as set by the Act of Congress of July 5, 1848.

Also in 1938 we have an opinion issued by the Louisiana Attorney General’s office, advising a man in Monroe, Louisiana is to Igoe, I believe it is, this is at Page 69 and 70 of special master’s report, that the Louisiana boundary was set by act of Congress of April 6, 1812, that is the act of admission to find him in the middle of the road and the Texas boundary by act of Congress of July 5, 1848.

The man had written in and apparently he had gotten a lease which purported to give him all of the river bottom and he wanted to know whether he got all or half and the Louisiana Attorney General said he got only half.

So we have the declaration by all of three of the Department’s of Government in Louisiana.

The legislature in 1848, the Supreme Court at 1901 and subsequently and the Governor and the Attorney General in 1938 all clearly recognizing that Texas owned the western half of the Sabine River.

In our answer to all that Louisiana alleges that three parishes purported to extend that boundary to the west bank.

I would point out to this that all three of those attempts were before the Act of Congress of July 12, 1848 and from the date of the act of Congress on July 12, 1848 until the inception of the controversy with the beginning of oil and gas activity in the area about 1940-41, there was a no question of title.

The special master refers to the desirability of having settled these cases years ago and quotes of the first Justice Harlan's comment to that effect in United States versus Texas in 1895-96, the simple truth is that 100 years ago there was certainly no controversy about this plan.

Louisiana also argues that Thalweg should be applied, we say that it is not applicable in this case for four reasons.

Number one, there is no reason for it where navigational rights are not at issue and we cite Georgia versus South Carolina for that proposition.

Secondly, we say that the prescription and acquiescence establish a line to the geographic center of the Sabine River and that prescription and acquiescence would overcome the Thalweg doctrine in any event.

Thirdly, and this is not mentioned by the master, there is considerable evidence in the record that there is no Thalweg in Sabine lake.

The map show a reasonable uniform depth throughout the lake, there is even one in the record made in 1777 that has uniform soundings throughout the lake.

And fourthly, and the master emphasized this, the act of Congress of July 5th, 1848 indicated that it was the view of Congress that Texas was together at one half, one half, one half not merely to the middle of the river.

As to the allowance --

Justice Potter Stewart: Is this a river that shifts the way that Mississippi river has or used to?

Mr. Samuel D. Mcdaniel: It shifts to some extent, but not merely enact like the Mississippi Your Honor.

Justice Potter Stewart: Would there be any difficulty in -- I am thinking about contrasting the the Thgalweg with the geographical center at the river which should be the easiest advice of practical matter.

Mr. Samuel D. Mcdaniel: As a practical matter the geographic center would be far easier to apply.

In Sabine lake for example you would have to go out there and I suppose take specific soundings all through the lake to try to find a channel through it, which we don't believe would be found.

Justice Potter Stewart: You say it is at least arguable that it is almost equal depths through most of it?

Mr. Samuel D. Mcdaniel: Yes, on the island question, we think that the special master only was interpreting the phrase including all islands to refer to the whole river rather than the area of the river defined by the call for a line to be drawn along the middle of the said river.

Justice William J. Brennan: (Inaudible) on this map?

Mr. Samuel D. Mcdaniel: On this map, Your Honor --

Chief Justice Warren E. Burger: Just by name --

Mr. Samuel D. Mcdaniel: Alright, the Sabine Island after which we recognize is in Louisiana.

Justice William J. Brennan: Right.

Mr. Samuel D. Mcdaniel: The islands coming to the west there, western middle pass Sydney Island those are spoil banks and they are not islands.

(Inaudible) island is not an island at all, it's an area cut off by the inter coastal canal of the mainland.

The little area there that is called Doom's island.

There is some controversy as to whether or not it was in the Sabine in 1812 or not, it is not there now, so it probably doesn't make too much difference unless the Court should decide that Louisiana’s line is entitled to be swung to the west of furtherest Island then it might become pertinent.

Justice William J. Brennan: What did you about the Sydney island, I am sorry Mr. Samuel I did not even catch you.

This happened in the island, Sydney island?

Mr. Samuel D. Mcdaniel: Sydney island is spoil bank Your Honor.

Justice William J. Brennan: Oh, I see.

Mr. Samuel D. Mcdaniel: You see the intercoastal canal run drive there behind, it's spoil, the inter coastal canal.

In fact one of the reasons that the island controversy is not too significant to the the lawsuit is because with the possible exception of Dooms Island we do not believe there are any island there that were there in 1812.

The all – oh my time has expired I am sorry.

Justice William H. Rehnquist: (Inaudible) that shipping that comes into Port Aurthur and Beaumont, I take it uses the port Aurthur canal rather than coming into Sabine lake, is that right?

Mr. Samuel D. Mcdaniel: That's correct Your Honor.

The channel here is shown to be 12 feet deep which is the normal channel of the inter coastal canal.

In fact I feel sorry that I don't think there would be any dispute about this, the ship channel which comes out of Port Aurthur and then goes going out to the Neches to Belmont is considerably deeper that that because it uses this full size tankers and freighters all the time and they draw more than 12 feet, but they do use that area and not Sabine lake.

Justice Harry A. Blackmun: Are there any island that's up river to the 32 degree from this map?

Mr. Samuel D. Mcdaniel: There is only one that I know of in a place called the Marrows and that was decided by the Department of the Interior I believe in 1910 to belong to Louisiana, that it should be measured from the Western Channel --

Justice William J. Brennan: I don't understand why is Texas objecting to that provision of the masters to employ this in New Orleans, do you any idea about that?

Mr. Samuel D. Mcdaniel: Well I would say it is more of a quibble really than an exception about the thing.

The only thing that scares also a little about the islands is that the the Court should determine as Louisiana contends that the boundary should come over here if they can prove say the Dooms island existed in 1812, and fix the boundary on the West side of Dooms Islands because Dooms island actually is the little beyond Island in the mouth of the Neches River.

Thank you Your Honor.

Justice Potter Stewart: What if any, does this controversy have to do with the boundary between Louisiana and Texas seaward of the coast up to the three leagues for Texas and three miles for Louisiana?

Mr. Samuel D. Mcdaniel: It has nothing whatsoever to do.

Justice Potter Stewart: It certainly has something to do with the starting point, doesn't it?

Mr. Samuel D. Mcdaniel: Well that gets us back to whether or not the United States has an interest in it or not and my answer to that is this Your Honor, it does have an interest in the starting point, yes as to the boundary between Louisiana and Texas.

Justice Potter Stewart: Right.

Mr. Samuel D. Mcdaniel: Where there is the mouth of the Sabine on the west bank.

Justice Potter Stewart: Whether it's the middle of the mouth of the west bank.

Mr. Samuel D. Mcdaniel: That is correct.

Justice Potter Stewart: Right.

Mr. Samuel D. Mcdaniel: This does not affect the United States, I do think because as to the United States the three league limit only comes as far as our historic boundary.

Justice Potter Stewart: Right.

Mr. Samuel D. Mcdaniel: The Congress does consider ports to extend it here anymore than they have consented ports to extend it up here in North to the 32 degree latitude, so we have no controversy.

Justice Potter Stewart: But as between you -- as between Texas and Louisiana, that boundary that's seaward of the shoreline is affected by this controversy?

Mr. Samuel D. Mcdaniel: It is affected and most states have stipulated that that issue is to be excluded from this lawsuit.

Justice Potter Stewart: Alright.

Mr. Samuel D. Mcdaniel: Now it will determine it obviously but this lawsuit will not determine, what tangent that line should take, whether it should be perpendicular from the coast or whether it should follow some other line.

Thank you sir.

Chief Justice Warren E. Burger: Mr. Stockwell.

Argument of Oliver P. Stockwell

Mr. Oliver P. Stockwell: Mr. Chief Justice, may it please the Court.

I think that it is very important from Louisiana's standpoint to have the Court appreciate the early history of this particular area as Mr. McDaniel has mentioned when Louisiana was purchased from France in 1803 there was a dispute over what its western boundary was going to be.

So, in 1804 they created the territory of Orleans which extended to the 33rd degree north latitude which is the north boundary of Louisiana.

So, in 1806 and I think this is very important, neither of the special masters of Texas have really covered this issue, in 1806, the United States and Spain, entered into an agreement creating what was known as a neutral zone.

Now, this neutral zone extended from the Mermentau River up to the Red river.

Now the Red River is part of the Mississippi watershed.

The big issue was Louisiana was only to cover the Louisiana watershed and the Louisiana watershed fell somewhere between Lake Chapala and the Mermentau.

So, Spain had brought troops into this area and the United States had brought troops in there and they were getting ready to have a confrontation.

So they entered into this agreement in 1806 and provided that neither the United States nor Spain would occupy this area.

They would assert no jurisdiction over it and it really became a no man’s land.

And when Louisiana was admitted as a State in 1812 it was admitted subject to this outstanding agreement.

Louisiana could not take possession of this area of land.

They could not go in there and could force any laws at all.

And of course this wasn't settled until the Trivia of 1890.

In other words Spain and the United States negotiated a treaty and settled the western boundary of the Louisiana purchase and also the Florida parish.

Of course the boundary one could find this to Louisiana, it went on up to the Red River and out to the Pacific.

But when they settled that boundary they settled it on the west bank of the Sabine up to the 32nd degree north latitude and then north to the 33rd which is the north west corner of Louisiana.

So, no patent were issued at this area by the United States.

When Louisiana was admitted as a State the Federal government retained all un-appropriated lands.

Now Texas when it was admitted as a state retained these lands.

So, all of the titles to Louisiana lands emanate from the Federal government except now in the streams.

So during this period there were no titles issued in here at all.

Justice Potter Stewart: [Inaudible] state of the Sabine?

Mr. Oliver P. Stockwell: Yes, in my brief—

Justice Potter Stewart: I read that story about Mr. Merrel --

Mr. Oliver P. Stockwell: It's liberty of putting a chapter out of this book of Maroo (ph) who was a freebooter in this particular area.

As a matter of fact I live in Lake Charles which is in this particular area.

It is about 70 miles from the Sabine across to the Mermentau.

So, you can see that it was quite a question when Louisiana was admitted into the Union up till they settled this dispute in 1890 and finally they did not issue patents till about 1824.

They started issuing some patents and even when they surveyed this line in 1840-41, Mr. Overton who was representing the United States pointed out the law in this area.

And so even when Texas was admitted as a state in 1845 they still had this problem.

Now Texas did have a settlements along the Sabine on the West bank but Louisiana have no settlements.

All this was marsh land and it is marsh to date and way up to river its marsh.

The only settlement was along the western bank and I think that's important because as the Court will note in my Appendix I mentioned a letter from Secretary of State of the Republic of Texas to the representative of United States concerning an interpretation of the word use in the treaty of 1890.

Now, both the special master and Texas have avoided a discussion of this particular phrase which I think is the main issue in the case.

Now the representative of the Republic of Texas said the word use meant to the jurisdiction over this water.

You see in the treaty both the inhabitants of Texas and the inhabitants of Louisiana had equal use and navigation of the water which gave them a use throughout the whole river and this use would not limit it to navigation, that was something separate and Texas in this letter which is in the appendix defines what they consider this used to be.

They had ports here and ships were coming in and smuggling and they wanted to have the right to go out and exercise jurisdiction to stop the smuggling which they said they had a right to do.

Now this discussion was going on, this was just prior to 1845 when Texas was admitted.

So it wasn’t unusual for Louisiana in 1848 to say that there was some question as to whether or not they had full jurisdiction over the Sabine even though they own -- their boundary was on the west bank because the constitution said commencing at the mouth of the Sabine bends along the middle to the 33rd degree north latitude and in north to the 33rd.

So, in this resolution as it is read by Mr. McDaniel accurately, they said that they were talking about extending jurisdiction.

Here were both Louisiana and Texas that had equal jurisdiction over this body of water by virtue of the use and so it was a question of either Louisiana having a full jurisdiction or like Congress decided to do, they gave half of the jurisdiction to Texas so that they could enforce the criminal laws.

Now even Texas, I think it is really important because Texas talks about the fact that Louisiana being able to acquire this territory without a specific act of Congress.

In one of Texas briefs, it is a brief, plaintiffs reply brief before the Special Master on page six, they admit that -- in other words, they say Louisiana obtained title to the unsold federal land adjacent to the Texas-Houston land boundary line by grants from the United States Government under the Swamp and Overflow Lands Act after its jurisdiction over the area had been recognized and acquiesced in by the United States Government’s resurvey of such land as a waste land in 1846.

Now what happened was that before Texas was admitted into the union and before they made this joint survey, the United States had gone in and surveyed a lot of this land and they had surveyed as part of the land that they considered Louisiana that extended west of this line.

So when they made this survey in 1841, they had to readjust these townships and some of the people that had purchased land from the United States Government in Louisiana received a indemnity for it and so they -- that meant that Louisiana had to give up some land out of this area and the lines were readjusted as Texas admits in 1846 to conform to this boundary agreement in 1890.

Now, Texas, in bringing this suit, they limited it to this water boundary, but Louisiana feel that they only way the Court can appreciate this boundary dispute is that it must consider the total boundary of Louisiana.

Texas knew that Louisiana’s boundaries from the 33rd to 32nd degree north latitude would have to be recognized as the treaty boundary.

Now they are saying that we are not entitled to the treaty boundary from the 32nd degree to the Gulf of Mexico by virtue of the language in the Constitution of 1812 of Louisiana which is the same constitution which covered the northern boundary in which they admit we are entitled to.

So we say that when the Court considered this case in the light of the historical facts that this Act, if they would allow this resolution, show that Louisiana considered that this was their west boundary.

They are only asking to give them the jurisdiction and the Congress gave the jurisdiction to Texas.

Now, if it is intended by this Act that they transfer this title to Texas, then under this Court’s case of Mississippi versus Louisiana, Congress could not deprive Louisiana of title to its land.

So, we say that that's one of the reasons why you find all of these maps and things with this line now.

In other words, there have been no question about the question of jurisdiction of fishing, hunting and various other activities on these navigable bodies of water because the citizens of both states had equal rights unless you considered that the jurisdiction was going to be exercised in limited areas by either one of them.

Now, this particular body of water here is not -- as a recent -- as a matter of fact, this was brought about by compact between Texas and Louisiana in 1954, creating the Toledo Bend Dam.

In this compact, it was specifically stated that this would not attempt to settle a boundary.

In other words, Texas knows that there has been a real dispute over this boundary for many years and they have not been misled.

As a matter of fact, Governor Jones in 1941 wrote a letter to the Governor of Texas stating that Louisiana owned to the west bank of the Sabine under the treaty of 1890.

As a matter of fact, Mr. Gouge, who was then Land Commission of Texas, he claimed that Texas owned 150 foot strip from this point on the Sabine, 32nd to the 33rd.

In other words, at that time, they were trying to claim that they owned over to Louisiana’s boundary under what they said the wording of the Constitution.

Now they admit that Louisiana owns it.

So it all goes to show that Texas really has never had any claim, had any doubt that Louisiana has its plan.

Now they thought that they would bring in a picture like this that shows the, all this field here.

Well actually all this field was done by the Corps of Engineers in digging these channels and this was not done by Texas.

The fact that Texas has used some of them and of course the United States has a navigational easement over this whole body of water.

So we say that Louisiana by virtue of the fact that it—

Justice Thurgood Marshall: (Inaudible)

Mr. Oliver P. Stockwell: The put all the people who built it on this field, Your Honor.

Justice Thurgood Marshall: But the United States Government did not build.

Mr. Oliver P. Stockwell: No, no I am not trying to see it.

I was trying to say the field was built by the Corps of Engineers.

Now they have built on that but most of that was built after 1941 when they were put on orders by Governor Jones that Louisiana claimed of the west bank.

So we --

Unknown Speaker: Is that answer to Mr. Justice?

Mr. Oliver P. Stockwell: I was saying that --

Justice William J. Brennan: Now this answers to Justice Marshall.

Mr. Oliver P. Stockwell: Yes it answers Justice Marshall.

Justice William J. Brennan: Yes.

Mr. Oliver P. Stockwell: He asked me who built on this -- the Pleasure pier and all these wharfs of this island I say that Port Aurthur did

The shield was made by the Federal Government but most of this work was done after Texas had been put on notice by the Governor of Louisiana in 1941.

In other words, it wasn't done what they put on notice that Louisiana was claiming.

Justice William J. Brennan: In other words, your position is that the fact that Louisiana tried to do nothing about that has no relevance at all to the question of time?

Rebuttal of Samuel D. Mcdaniel

Mr. Samuel D. Mcdaniel: Well, we are saying, Mr. Justice that actually as far as I can understand, as far as the records show, if I wasn't in this in the beginning so I certainly wouldn’t having a first knowledge it?

The World War took place in ’41 which we all know about that and then soon after that, Texas and Louisiana got involved in the title and litigation and from all the information we have, as a matter of fact, when I argued the matter before Judge Van Pelt, I mentioned that fact that it was not disputed, that there was kind of a gentleman’s understanding that neither side would do anything pending the settlement of this title and litigation.

But Texas settled and had immediately file a suit and we say that there has been no evidence to refute it although in their brief they say -- they now deny that but --

Justice William J. Brennan: But this is an argument that Texas cannot make out, anything out of the fact that Pleasure Island was built on this field, (Voice overlap)

Mr. Samuel D. Mcdaniel: That is exactly what -- that is exactly what we are Your Honor because of the fact that we had put them on notice and decided not to do anything pending this title end.

As a matter of fact, in filing this very suit, Texas asked us not to bring in the title ends issue on it which like Justice Stewart said, we are going to have to settle someday, where the line is going to start and what direction it is going to take into the gulf.

Justice Thurgood Marshall: You are not trying to convince me that Texas made this contribution to Louisiana this pier?

Mr. Samuel D. Mcdaniel: No sir, I am not trying to do that.

Justice Thurgood Marshall: I mean it is a big state, but I did not know they were that generous.

Mr. Samuel D. Mcdaniel: Well I do not think they intend to make this but of course Mr. Justice Marshall, actually many things are built on fields in navigable streams without affecting the title to the subsoil.

In other words viewing in this -- if the Federal Corps of Engineers give Port Aurthur a right to put these works after that.

That doesn't mean they would have title to the subsoil on which these field are been made and that is one of the arguments that we are making in here.

Justice Thurgood Marshall: Who had the title to the bridges over the Sabine River?

Mr. Samuel D. Mcdaniel: Well we take to position, Justice Marshall that it was – in the interest of both parties, this was a navigable stream.

Both parties wanted to have commerce across it.

Now, the testimony would show that these bridges were loaned to one point into river, they were in half and half all the way across.

In other words --

Justice Thurgood Marshall: Is that same for the police jurisdiction half and half all the way across?

Mr. Samuel D. Mcdaniel: No sir but we, some of our people testified they did arrest all the way across, I would say that most haven’t recognized the division line, I mean to be perfectly candid with the Court.

Justice Thurgood Marshall: The division line was in the middle?

Mr. Samuel D. Mcdaniel: Well it was along somewhere in there, they were thinking about it from their jurisdiction but I think as far as the bridges were concerned, they were built maybe on a 50-50 basis and they owned the whole bridge together and I think you would see from the testimony there were not any line picked out in any part of the river.

Justice William H. Rehnquist: Mr. Stockwell, as I understand the common law anyway if you were to occupy a property which I claim and possess it, a mere letter from me to you saying I claim it is mine which did not change your possession would not stop the prescriptive period for money.

I would have to commence a lawsuit to evict you from the property rather than simply send you a letter.

Wouldn’t you agree at least generally that that same (Voice Overlap).

Mr. Samuel D. Mcdaniel: I would agree generally with that premise, Your Honor but I feel if the parties mutually understand, that they have got another matter to settle and they are not going to litigate over it, then I think that is another matter.

Justice William H. Rehnquist: No I would agree with that but so far as Governor Jones' letter is concerned, it seems to me that if Texas was exercising possession prior to that and continue to exercise it afterwards, I do not see that the letter would be terribly relevant?

Mr. Samuel D. Mcdaniel: Well I think it would have it then because states really act a little different than the individuals.

I mean I think that it is harder to get them to get into lawsuits with each other, in particular for any state.

I mean I think that is a matter that certainly, I do not think if you would -- but we say that beyond that, that they agree that they would not litigate this pending this title end litigation which is evidently in this very case because we are not litigating the part that extends into the gulf.

Now Your Honor we fell that the question of --

Justice Byron R. White: The description does not run against the sovereign state?

Mr. Samuel D. Mcdaniel: Well we do not make that as a reference to one state, one state to another state.

Now we would make it as the individuals.

Justice Byron R. White: But you think the same -- you are saying the ordinary rule would apply between states?

Mr. Samuel D. Mcdaniel: Well I think this Court has said that it could acquire title by acquiescence and prescription, I mean settle the boundaries.

So I want to accept what this Court said on it, that as far as between the states that you would not, in other words, we could not say prescription would run against Louisiana in favor of Texas or vice versa.

So I would think if it is an individual, there would be a different problem.

Justice Byron R. White: Yes.

Mr. Samuel D. Mcdaniel: Now, as a matter of fact, Texas had this very same problem in one of that, in the Mexican boundary.

In the case of Fergosa (ph), they had a treaty in 1905 in which they settled some Bancos as they call it which is made by the Rio Grande River.

Now part of these Bancos were taken from Mexico and given to United States in part to Mexico.

Now the question came up in this case as whether or not a party acquired a title to one of these Bancos by limitation.

And the only way he could acquire that title was if Texas got title to this Banco by virtue of the treaty and not by virtue of some acts that was passed in 1823 -- 1923 and the Court held that when the United States and Mexico settle this boundary, that those lands merely became part of Texas and it didn’t need any further action.

They said Texas had given up some land and they acquired some land and that is the same thing as Louisiana has done here.

The question (Inaudible) we say that (Inaudible) Louisiana is in this position, this is an alternative plea, if the Court feel that we are not entitled to it.

This Court is held into the case of the State of Louisiana versus Mississippi that the Thalweg applied to the east boundary of Louisiana in the Pearl River and extending all down into the gulf interpreting the same language and the constitution that is involved in this case, the middle of the Sabine, the middle of the Pearl and the question they both have arrived at navigation and of course we feel that certainly, this Court, in making other cases dealing with navigable streams where you have equal rights of navigation have always held that the Thalweg applied.

Now the case of Georgia versus North Carolina is kind of an unusual case and we do not believe that that was more or less, the parties more or less admitted themselves in that kind of a position but we feel that the majority of the jurisprudence in particular interpret their own constitution.

This Court has held but the Thalweg rule would apply if you feel that we are not entitled to the west bank boundary.

Now as far as Orleans, I want to make a quick reference to that.

Justice William J. Brennan: Any idea what difference that does make?

Mr. Samuel D. Mcdaniel: Well it made quite a little—

Justice William J. Brennan: Unless it's in the middle of the river?

Mr. Samuel D. Mcdaniel: Well Your Honor it makes a good deal of difference as to how they come out of the Sabine, at the Sabine Pass.

As a matter of fact, you can see they have done a lot of channel work in here.

Now the question is what do we entitle to the middle of the river.

Are we entitled in 1848?

See it was about four part Orleans up here and the channel came out, in other words when they made the survey in 1840-1841, they made it on the west bank of the furtherest island so we say that it would make a lot of difference in coming out of here.

Now in that survey, they also found what they called Doom’s Island right of the Neches.

That was in the survey and referred to it.

They made -- in other words they made notes of all of the surveys so they referred to that.

Now if you follow the case of South Carolina and Georgia, then the Court, if the language of that case would be accepted, would take the channel west of these islands, that is what they did in that case.

Unknown Speaker: (Inaudible)

Mr. Samuel D. Mcdaniel: That is right.

So -- and then they all hound up the river by the two.

As a matter of fact, it is kind of unusual, Your Honors because Texas, in their motion for judgment and memorandum with respect to the motion, on page nine, they admitted this, they say that Congress permitted Louisiana to include within its state boundary all of the eastern half of the Sabine including all islands within the stream.

So we say that they only changed their position later in this case.

As a matter of fact, we have a letter from Mr. Gouge that urged the same thing.

In other words, he urged that they were entitled to the west half, exclusion of all the islands.

So, Texas in its own brief, and they already stated in this case, they admitted Louisiana was entitled to all of the islands in the Sabine.

So we say this is important to be considered by the Court to consider in this case.

I certainly thank you gentlemen.

Yes sir?

Justice Harry A. Blackmun: (Inaudible) the Sabine Pass pointed that the top of the map and down at the bottom of the map it says Sabine Pass, is it also Sabine Pass up above?

Mr. Samuel D. Mcdaniel: No sir that is the Sabine River.

The Sabine River, you see the Sabine River --

Justice Harry A. Blackmun: So the pass is at the lower --

Mr. Samuel D. Mcdaniel: The pass is down here, you see they did not show all of this -- one of the things that is unusual.

Yet they are trying to make these lines on this map but now out in the gulf they wanted to take another line.

They do not want the same lines on the maps out in the gulf.

So I mean it's kind of a map, [Attempt to Laughter] excuse me.

That's why you see it's all handed out like that over here.

Thank you.

Chief Justice Warren E. Burger: Mr. Stockwell, thank you gentlemen.

The case is submitted.

Featured:

Michigan v. Ohio - Oral Argument

Thu, 23 Aug 2012 18:12:36 +0000

Case:

Michigan v. Ohio

Media File:

30orig_19721211-argument.mp3

Related Transcript:

30orig_19721211-argument

Transcript:

Argument of Charles F. Keeley

Chief Justice Warren E. Burger: Mr. Keeley, you may proceed whenever you’re ready.

Mr. Charles F. Keeley: Mr. Chief Justice, may it please the Court.

Michigan instituted this action back in 1966 tactically on the invitation of Governor Rhodes who indicated that it would be quicker to solve the controversy between the north cape of Maumee Bay to the international boundary.

We filed this matter with this Court was referred to Special Master Maris for hearing.

He held several hearings and finally he made a report.

It is this report for which Michigan has found some exceptions.

The first exception that the State of Michigan finds is that the Special Master did not correctly relocate the north cape of Maumee Bay.

I would refer you to finding number 31 in which he said that the location of the north cape of Maumee Bay can be found by referring to Captain Anthony -- to Captain A. Talcott’s survey.

Chief Justice Warren E. Burger: Mr. Keeley.

Mr. Charles F. Keeley: Yes, sir?

I beg your pardon.

Chief Justice Warren E. Burger: Could you tell us what page on the -- would it be Page 15?

Mr. Charles F. Keeley: Yes, Page 15.

At that time, it was recognized by the Special Master that that is a correct conclusion as to what the north cape of Maumee Bay was in 1835.

There was absolutely no evidence in this record to say that the north cape had washed away by 1836.

So we would submit that this is the better method of finding the north cape of Maumee Bay and we’d also like to cite the matter of Chinoweth versus Haskell, which 28 United States Reports Page 92.

This case said that courses and distances should be regarded in locating boundaries.

Justice Harry A. Blackmun: Mr. Keeley, will you somewhat enlighten me as to why this case is very important to the State of Michigan?

Are there islands or -- that are at issue or is the land under the water important some time or is it just because you want the matter finally determined?

Mr. Charles F. Keeley: No, I think the rules in that this case began, Your Honor, is because there was oil and gas believed to have been underneath this water and additionally there have been some other mineral developments that are not in the record at all but are important to both states.

Justice Harry A. Blackmun: I see, well that’s -- it just hadn’t come clear to me and I wondered what was all about.

Mr. Charles F. Keeley: When the Special Master made his relocation of the north cape of the Maumee Bay, he did not determine pursuant to the statute of 1836, that’s June 15, 1836, but he relied on the survey by Engineer Gannet when there was a joint commission between -- provided by these two states to survey the land boundary.

And when he relocated that line, he used the same degree of measurement from Post 70 to 71 until it intersected with itself, 45 degree angle from the existing seawall on Turtle Island.

That is why we believe that our position is correct because it is a contemporary with the statute of 1836.

It was a statute and a report of which was before the Congress at that time that the statute was passed.

Judge Maris assumed that the line would be North 87 degrees 49 minutes and 44 seconds East and there is no way you can do that except by going back to this previous survey in the teams of the 1900, teams of the 20th century, and this is not where it should -- should have located.

He should have gone back to the survey just prior to the passing of the statute.

Justice Thurgood Marshall: The indispensable adequacy of the Congress drew the line that you say that drew in 1836 West Sister Island would be in Michigan.

The Senate didn’t mean to do that, did they?

Mr. Charles F. Keeley: What island would be in Michigan?

Justice Thurgood Marshall: West Sister Island, that’s what the Master said.

Mr. Charles F. Keeley: I am not aware that he did say that Mr. Justice.

Justice Thurgood Marshall: Well, I get the page for it.

He said, “It would be a bizarre result.”

Now, let me find it.

Go ahead, I’ll find it.

Mr. Charles F. Keeley: Okay.

Thank you.

We take a very fundamental disagreement with regard to the fact that Special Master said.

Justice Thurgood Marshall: Did he say bizarre?

Mr. Charles F. Keeley: I believe it’s on Page 29 of his report that the statute of 1836, June 15th of 1836 is clear and unambiguous.

We feel that this statute was not clear and unambiguous.

We say that the 24th Congress itself felt the statute was not clear and unambiguous, because only eight days after the statute was enacted, they came and enacted another statute to define the northern boundary of the State of Ohio.

And if you look at the statutes, they are almost identical from the point of view whether they ae -- thence, northeast to the international boundary line.

Therefore, we believe that you must take another look at the statute and recreate the history by which it was enacted.

We also put into evidence the case, the witness, Ralph Berry who comes with imminent qualifications.

He is a civil engineer, he is a Professor of Geodesy at the University of Michigan and he has testified on Page 88 of the record that this is a matter that it is not clear and unambiguous.

They have to take into consideration all the facts and circumstances of the case.

Lastly, I would like to have this Court consider the fact that the Special Master included in his definition of the boundary line from the north cape to the international boundary line, Turtle Island, and in no way was Turtle Island a part of the statutory language defining this boundary.

Turtle Island was a point of reference by Captain A. Talcott to locate the north cape of the Maumee Bay.

Justice Potter Stewart: Well, I thought that that’s the only way the that the Special Master used it and what he did was to use the old lighthouse, which was located on Turtle Island within a very small margin of era, and he reversed the northeast course backwardly.

What we’ve got is in sailing in Cal of 45-degree course, he reversed it backwardly into a 225-degree course to get to line, isn’t that right?

Mr. Charles F. Keeley: He referred to --

Justice Potter Stewart: Through the old lighthouse?

Mr. Charles F. Keeley: That’s correct, Your Honor.

Justice Potter Stewart: That’s the way I understood it.

Mr. Charles F. Keeley: But as far as the statute creating the boundary line is concerned, that only relocates the north cape of the Maumee Bay and has nothing to do with the -- from the north cape of the Maumee Bay.

There is no reference at all in the statute.

Justice Potter Stewart: Well, the reference is to a northeast course, isn’t it?

Mr. Charles F. Keeley: Northeast course, yes.

Justice Potter Stewart: And northeast means 45 degrees, so the Special Master held and your claim is that it means generally northeastwardly following the previous line, isn’t that it?

Mr. Charles F. Keeley: That’s correct.

Justice Potter Stewart: Which would be just a couple of degrees north of east, isn’t that right?

Mr. Charles F. Keeley: That’s correct.

Justice Potter Stewart: Right.

Mr. Charles F. Keeley: And he maintains that further on the grounds that the case is -- that the statute is clear and unambiguous.

Chief Justice Warren E. Burger: Counsel, in the circumstances of a disagreement of this kind, do you think there is any perfect way to achieve a perfect solution?

Mr. Charles F. Keeley: I would think there is any perfect way to achieve anything except I think you can follow the statute and if you want to call that as a perfect remedy, that’s --

Chief Justice Warren E. Burger: Well, I am talking now about the physical factors, not statutory interpretation.

Isn’t it -- what I am telling at is --

Mr. Charles F. Keeley: Yes.

Chief Justice Warren E. Burger: -- if you have this kind of a boundary problem, isn’t it a matter of doing the best you can with what you have to work?

Mr. Charles F. Keeley: Yes, I see what you mean Mr. Chief Justice.

If you are going to do that, I suspect to one of the things you might look at would be taking a perpendicular line to the north cape and draw that as the line which would separate the two states, and -- but that was not in the evidence, that’s why I would hesitate to call that to your attention at this time, but I think that would be one way in which the parties on both sides of the Bay would get what was perhaps given to them by the Congress.

Justice William H. Rehnquist: Perpendicular to what Mr. Keeley?

Mr. Charles F. Keeley: Perpendicular to the Bay.

That’s one of the problems that would be confronted with any -- determination of that is to find out what the Bay consists of.

Justice William H. Rehnquist: Do you mean a line across the mouth of the Bay?

Mr. Charles F. Keeley: That’s right.

That’s approximately what it would be.

And would it be from the north cape down to Kelley’s Island or would it be embraced from the end of the Detroit River down to some other group of islands across the Bay, across the lake.

I don't have anything more.

Thank you.

Chief Justice Warren E. Burger: Very well.

Mr. Rawlings.

Argument of Charles S. Rawlings

Mr. Charles S. Rawlings: Mr. Chief Justice and may it please the Court.

The issues involved in the Michigan-Ohio boundary dispute as it goes through Lake Erie or basically to the enabling legislation at issue of course is the legislation of June 15, 1836, which legislation established the northern boundary line of the State of Ohio, and provided for the admission of the then territory of Michigan into the Union upon the conditions expressed in that statute.

One of the conditions expressed was that Michigan specifically ascent to the boundary line as set forth in the statute.

After some months of debate in the territory of Michigan, Michigan did ascent in December of 1836 and was admitted to the Union in January of 1837.

The boundary description, of course, as it affects us in this particular dispute, extends from the southern extremity of Lake Michigan to the most northerly cape of the Maumee Bay, the most northerly cape as it existed in 1836 at the time of the enactment of the legislation before us, and from that point, northeast to the international boundary line between United States and Canada.

It is and has been Ohio’s position throughout the course of this controversy that the term northeast used in the 1836 legislation means halfway between north and east or in equal point from each, and in terms of degrees that would translate into North 45 degrees East.

We feel that a statute embodying this term is clear and free from ambiguity, and if that is so, it is not necessary to look to contemporary historical documentation, such as in evidence in this particular case, in order to locate the direction of the course from the former north cape to the international boundary line.

If one accepts Ohio’s premise in the Special Master’s conclusion that northeast means North 45 degrees East, we are still left with the problem of relocating the former position of the north cape of the Maumee Bay.

The north cape of the Maumee Bay, as it existed in 1836, has been subject to considerable erosion at that time and, of course, no longer occupies its former position.

In trying to reach a solution to this problem, we are aided by several factors.

Initially, we know that the land portion of the boundary line between Michigan and Ohio was monumented and surveyed by joint agreement between the two states in 1915, and currently terminates at what is known as Post 71 which is the easternmost terminal monument going toward the former land position of the north cape as it existed in 1836.

That land boundary has been unchallenged so far as we are aware since 1915 and it does follow a defined course.

We are further aided --

Justice Harry A. Blackmun: Why did it take until mid 1950 to have that survey made?

Mr. Charles S. Rawlings: Apparently -- well, of course the dispute between the two states was settled in 1836 by virtue of the enabling legislation.

Apparently, from 1836 until the early part of the 20th century, the territory around Toledo and Lucas County and what is northwestern Ohio was not fully developed to an extent to cause too much confusion.

The report of the survey, an engineer’s report in 1915, last says, the cause of the survey, the fact that land values have been appreciating rapidly in the Toledo-Lucas County area and also states in the course of its report that there was considerable apprehension among the citizens, because of this increase in land value as to where the boundary lay, and it was therefore felt necessary by both states of Ohio and Michigan to permanently monument that particular boundary.

In so doing, they attempted to retrace the boundary as set forth and monumented by William Harris in the year 1817.

The stated reason again in the 1915 report is that land had been increasing and there was enough concern on the part of all land owners in the area to, at this point in time, warrant a survey of the land boundary.

Justice Potter Stewart: This dispute, this general dispute, has a long, long history doesn’t it Mr. Rawlings and back to the so-called War of Toledo when each troops from Michigan and troops from Ohio were well on their way to a confrontation over this boundary dispute?

Mr. Charles S. Rawlings: Yes, it does Mr. Justice Stewart.

The misunderstanding, of course, originally given rise to the dispute.

IT was due to the incorrect position of the southern extremity of Lake Michigan as shown on most of the maps of the day, and they further dispute between the states as to whether the boundary line on the land portion should go from the southern extremity of Lake Michigan to the north cape of Maumee Bay or should be a due east line from the southern extremity of lake Michigan as your --

Justice Harry A. Blackmun: It was a strange to say the least starting point, the southern extremity of Lake Michigan for a boundary between Ohio and the State of Michigan.

Mr. Charles S. Rawlings: Yes, although when one considers that Ohio and Michigan are part of the five states carved out of the Northwest Territory and further considers that at that point in time, Lake Michigan was perhaps the only known physical feature of that area, which could be located other than the Ohio River on the south and the Pennsylvania line on the east.

It isn’t too surprising because Congress was concerned itself with carving out three states at least, perhaps five, out of the Northwest Territory.

It is surprising in the sense that the position of Lake Michigan or at least its southern extreme, as shown on the prevailing maps of the day, primarily Mitchell’s Map of 1755, was generally assumed to be quite valid and showed a latitude of 42 degrees, 30 minutes north, whereas in fact the position, as shown, was considerably north of its true position.

This error and this mistake and what everyone, prior to around 1818, had considered a rather fixed monument from which to draw a boundary was the cause of considerable historical prevalence between Ohio and Michigan, and as it has been alluded to, almost caused a war between the two states.

Only the personal intervention of President Jackson and a considerable diplomatic maneuvering prevented armed conflict between Ohio and Michigan.

Justice William H. Rehnquist: Mr. Rawlings, would Congress have had any reason to think that a line between the southern tip of Lake Michigan and the north cape of Maumee Bay would have been an east-west line as opposed to perhaps a more northeasterly line than it turned out to be?

Mr. Charles S. Rawlings: I don’t believe so, Your Honor.

By the time a legislation of 1836 had been enacted the true position of the southerly extreme of Lake Michigan was known.

And that true position fall south of the north cape.

So that a line drawn due east from the true position of the southerly extreme of Lake Michigan would not strike the north cape at all but would strike several miles below it.

Justice William H. Rehnquist: Well, and then you say that the Congress knew this in 1836?

Mr. Charles S. Rawlings: I believe in 1836 Congress knew the physical fact of the southern extremity of Lake Michigan much better than they had realized it prior to that time.

They had taken into consideration many arguments from Senators and Representative from both the State of Ohio and to then territory of Michigan and a memorial sent to Congress and to the Executive Branch, most of this documentation is an evidence in this proceeding and before the Special Master.

Justice William H. Rehnquist: Well, if they knew that the line were northeast, doesn’t that give some plausibility to Michigan’s contention that when it speaks of the northeast projection out into the lake that they meant simply a continuation of the land boundary?

Mr. Charles S. Rawlings: I don’t believe so, Your Honor, because the due east line which was striven for by the territory or Michigan, up until the enactment of the 1836 legislation, was rejected by the Congress of the United States.

Congress in so reject in it recognized in effect the Ohio proviso to the Constitution of 1802, and extended of the boundary northeast.

It seems to us that it is considerably more logical to believe that Congress, in using the term northeast, meant North 45 degrees East than to conclude that they meant a line which although true it is about 2 degrees 10 seconds North of East, comes very close in practical effect being due east line.

I think if Congress had meant to extend the existing land boundary according to the Talcott survey of 1834, they might well have used the language in the legislation appropriate to the purpose, either indicating direct to the international boundary line or using phraseology more appropriate to that end.

The Turtle Island which has been referred to and considerably in the briefs and arguments before the Special Master and in argument this morning, is a small island located by Captain Talcott in 1834 and its existence was known prior to that time at the mouth of the Maumee Bay.

It is located approximately three quarters of a mile from the Maumee Bay and we know, by reference to historical surveys and evidence in this proceeding that a line drawn North 45 degrees East was passed through the existing circular concrete seawall on Turtle Island.

Now, we have never contended in the course of this proceeding that the existence of Turtle Island is determinative of the question of the meaning of the term northeast, clearly it is not.

It is relevant, however, if one accepts the basic premise that northeast means North 45 degrees East.

By reference to historical survey as we know that a line drawn North 45 degrees East will pass through that island.

It is then logical to reverse that known col South 45 degrees West until we strike the projection of the known and existing line boundary line monumented in 1915.

It is at that point in time that both Ohio and the Special Master contend one has relocated the north cape of the Maumee Bay with about as much practicable accuracy as one can hope for I think when one is trying to locate a point which is not been in existence since well before the middle of the 19th century.

The north cape of the Maumee Bay, therefore under that theory, would be readily ascertained and Turtle Island would serve as a convenient fixed boundary or monument readily seen by anyone sailing in and out of Maumee as a memorial or monument on the boundary line.

Throughout the course of Michigan’s arguments both before the Special Master and in this Court, there has been reference to the survey made by Captain Andrew Talcott in 1834.

And of course, Michigan’s basic position in this litigation is that, that survey or at least a computation or an extension of the line of that survey through mathematical computations of its witness called in this proceeding, should be extended in a northeasterly direction about 2 degrees North of East to the international boundary line.

We would point out that Congress in 1836 when it enacted the statute providing for the admission of the territory of Michigan into the Union had before it three basic surveys.

It had before the Harris Survey of 1817, which was drawn in accordance with the Ohio proviso and went from the southerly extreme of Lake Michigan to the most northerly cape of the Maumee bay.

It had before the Fulton Survey, which was a due east line drawn really at the request of then acting Governor Cass of the Territory of Michigan who complained that the Harris Survey was not drawn in accordance with then existing legislation.

And the Talcott Survey in 1834.

We submit that there is nothing in the record of this case which indicates at all that Congress intended to extend the Talcott line across the lake.

The very title of the Act providing for the Talcott Survey is called “An Act Preparatory to adjust in the Northern boundary of the State of Ohio.”

And apparently, Congress at least has revealed in the Michigan Exhibit 8 Senate Report on the territories, felt that necessary in view of the very difficult situation which had developed between the State and Territory, and in view the conflicting claims to have Captain Talcott ascertain the latitude and longitude of the points in issue prior to further considering the arguments between the State and Territory and coming to a conclusion on the boundary.

It did come to a conclusion on that boundary in 1836 and that conclusion settled the issue in favor of the State of Ohio.

And finally, as we have indicated, if the position is adopted that the legislation of 1836 was clear on its face, then there is no need to refer to debates between Senators and Congressmen or letters addressed to Congress to construe the meaning of the statute.

But if this Court determines that indeed, in accordance with the claim of Michigan, the statute is not clear on its face that there is some ambiguity, and if there is then a felt need to refer to the documentation introduced in evidenced in this case, we believe that a review of that documentation will not support the claim of Michigan.

We point, for example, to Michigan Exhibit 10 in evidence in this proceeding particularly Pages 4 and 6 of that exhibit, which contain statements by the then duly authorized representatives of the Territory of Michigan rejecting admission of their state or their territory into the union because they could not live with the boundary lines set by Congress in the statute, and noting clearly in that particular documentation that Michigan knew the import of the Congressional decision.

There is reference in that exhibit to the fact that Ohio, if Michigan has to accede to this proposition, will obtain jurisdiction over the entire western end of Lake Erie, almost to the mouth of the Detroit River and above the River Rouge.

Michigan decries this, they say it’s unfair, they indicated this is not in conformance with the ordinance of 1787, they indicated this is not in conformance with the legislation of 1805 by virtue of which the Territory of Michigan was formed out of Indiana Territory, but they nonetheless recognize what the meaning of the legislation is.

And after rejecting Congress proposal twice, finally the third time around they agreed to this proposal with much bitterness in ranker as is revealed in the debates feeling that the admission into the Union and the advantages of the statehood outweighed losing a position for which they had striven for some 25 or 30 years prior to that time.

We would also note the fact as it’s revealed in the documentation and evidence in this case most of it supplied by Michigan that under a theory of the due east line extending from the southern extremity of Lake Michigan, the theory that is contained in the statutes before the exact position of the southern extreme of Lake Michigan was known.

And under the maps and existence of that time, Ohio would have gotten almost all of Lake Erie.

Clearly, it seemed that Congress had before it maps of the lake and there is even references in the documentation and evidence in this case to the effect that Ohio might have claimed more than it chose to claim, had it not inserted the proviso indicating that the boundary should be established to the north cape of the Maumee Bay.

The reason they inserted that proviso, I believe both states can agree, is because Ohio at that time was primarily concerned with preserving Port City of Toledo in the mouth of the Maumee Bay.

The debate between the two States prior to 1836 over what was referred to as the Toledo Strip being concerned with those points.

We further note the testimony which has been referred to in argument this afternoon and was discussed extensively in briefing and argument before the Special Master that is the testimony of the Geodetic Engineer of the University of Michigan called on behalf of Michigan.

We indicated at the time to the Special Master and reiterate our position this afternoon that although the State of Ohio has no evidence rebutting the mathematical calculations of Professor Berry as he extends the Talcott line across the lake to the international boundary line, we consider this calculations totally irrelevant if this Court believes that the true boundary, as revealed in the language of the statute, is North 45 degrees East.

Much of the testimony concerns the Professor’s opinion as to the meaning of the historical documents and his ultimate conclusion of law on this case, we consider it not relevant if the Court initially holds that the line is due northeast.

And finally we would refer the Court's attention to the other exhibits offered by Ohio, the resolution of the Ohio General Assembly in 1933 defining the boundary as we have contended it to be today.

The Michigan Rescission Resolution of 1945 in which they agreed with the State of Ohio.

True they rescinded that resolution two years later, but it indicates at least to us that highly-placed officials of the State of Michigan at that point in time were aware of where the boundary lay and agreed with Ohio.

Justice Potter Stewart: When was that?

In 1930’s?

Mr. Charles S. Rawlings: Yes, the Ohio General Assembly passed their resolution in 1933.

Justice Potter Stewart: And it was done with the prospect that Michigan would pass a concurrent resolution but not --

Mr. Charles S. Rawlings: Yes, specifically stated in the 1933 Resolution as the hope that Michigan would pass a like resolution.

Justice Potter Stewart: Right and Michigan did so.

Mr. Charles S. Rawlings: They did in 1945 identical to that of Ohio.

They rescinded that resolution on 1947 two years later.

And that is where the matter lay until --

Justice Potter Stewart: Right.

Mr. Charles S. Rawlings: -- the filing of this litigation.

We would also refer the Court’s attention respectfully to the two other exhibits submitted by Ohio, the maps of the Erie and Oregon quadrangle compiled by the geodetic service.

Both of those maps show the boundary line between the two States as being North 45 degrees East from a point located as north cape, and notations at the top of those exhibits indicate that the exhibits were prepared in collaboration with the Commissioner of Highways of State of Michigan.

In summary, therefore, we would respectfully urged this Court to confirm the findings and the conclusions issued by Judge Maris, the Special Master in this case, and to enter a decree in this matter in conformance with the findings and conclusions, and recommend the decree of the Special Master.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Keeley?

Rebuttal of Charles F. Keeley

Mr. Charles F. Keeley: I have nothing, Mr. Chief Justice.

Chief Justice Warren E. Burger: Very well.

The case is submitted gentlemen.

Featured:

Nebraska v. Iowa - Oral Argument

Thu, 23 Aug 2012 18:11:01 +0000

Case:

Nebraska v. Iowa

Media File:

17orig_19720329-argument.mp3

Related Transcript:

17orig_19720329-argument

Transcript:

Argument of Howard H. Moldenhauer

Chief Justice Warren E. Burger: We'll hear arguments next in 17 original, Nebraska against Iowa.

Mr. Moldenhauer.

Mr. Howard H. Moldenhauer: Mr. Chief Justice and may it please the Court.

This case involves Nebraska's contention that the State of Iowa has violated the Iowa-Nebraska Boundary Compact of 1943.

In order to properly evaluate the contentions of the State of Nebraska, we feel it's essential at first we have to examine into the situation as it existed in 1943 and in prior years.

The case of Nebraska versus Iowa decided in 1892 determined the originally the boundaries between the two States was the center of the main channel of the Missouri River.

And the boundary moved with changes of the channel, when these changes were gradual and imperceptible but when they were sudden or by avulsion, then the boundary remained in the bed of the abandoned channel.

These principles applied at that time, both to State and private boundaries.

There's no dispute down through the years and Missouri River was very notorious for all of its periodic flooding and many natural changes.

And it was common knowledge that at many times that it changed its course and had had physically dissevered lands from one State and left them on the opposite side of the river and this created all kinds of problems in determining a jurisdiction, titles, which schools children should go to, and taxation.

And the legislative history of both States is replete with recognition of these problems and the legislatures had boundary commissions from 1901 through 1943.

Commencing at about 1934, on top of this already confused situation along the river, the U.S. Army Corps of Engineers set out to create a new and stabilized channel for the Missouri River.

This channel was supposed to be 700 feet wide and was prepared on the drawing boards.

And then the Corps of Engineers said the construction dikes and revetments set about to place the river in that channel.

And commencing in 1938, they also dug canals to physically place the river in the channel.

These canals consisted in many cases initially of a ditch, dug on dry land and then, they opened or pulled the plug at the top and allowed the water to go through when it scoured out through that dry land the new channel.

At that time, the Corps, when it moved the river, moved it around islands, around barren areas, and through bank area.

And it created or further confusion in so far as boundary problems were concerned, but the Corps, when it channelized the river, paid no attention to the boundary, it was not concerned with this, it was concerned in confining the river and stopping the flooding and improving navigation.

By 1943, the Corps had dredged canals of at least 11 locations and Nebraska feels that the evidence shows at least 15 places, but that really is not important, there were several canals, which they have dug.

And in 1943, South of Omaha, the river was 99% in its design channel to the Nebraska border, and North of Omaha, it was approximately 78% in the design channel.

But, this river worked by the Corps had further compounded many the title problems which existed.

In 1943, then the states, under the assumption that the river was finally stabilized, entered into a Compact to settle their boundary, and at that time we think the facts are very significant, because at that time, each state and the Master so found, recognized that the shifts of the channel in the past had been so numerous and intricate that for practically all land adjacent to the river, there were no conclusive determination of either State or private boundaries was considered passable.

They both recognized that in many places the boundary line was not located in Missouri River.

And that these places had not been determined and were almost impossible of determination.

And if a compromised couldn't be worked out and if they have to make a determination, where the boundary had been fixed on dry land, it would be an extremely complicated and an expensive process.

At this time and prior to this time, the State of Iowa was making no claim to abandon river beds or islands arising in the bed of the Missouri River and under any common law claim of sovereign ownership.

In 1932, they have purchased some land in an abandon river bed, in a well-known avulsion of the Lake Manawa, just south of Council Bluffs, Iowa.

And they were not claiming islands which existed south of Omaha, where the river had been entirely in the design channel, since at least about 1938.

There were abandoned channels in oxbows all up and down the Missouri River, on both sides of Missouri River.

And Iowa had made no claim to these abandoned channels on oxbows on either side.

There was a case in 1938 and the Nebraska District Court, which was eventually, decided by the United States Court of Appeals for the Eight Circuit called U.S. v. Flower, where the Court found an avulsion in Nebraska land on the Iowa side of the river.

And Iowa was a party to that case at one time in the District Court, and then the Court allowed her to withdraw, she did, but she never came in and claim that abandoned channel.

The Iowa Code, during all of these period required that the Secretary of State was a State Land Office and would maintain in separate track books the areas of lands which the State may now own or may hereafter own, so that there would be a separate record of the lands in state ownership.

Iowa had no record of any State-owned lands along the Missouri River or lands which she used to claim at a future date.

The Iowa Coast, since 1923 had provided that the Conversation Commission would mark its boundaries, in cases, where the jurisdiction or the boundaries of its jurisdiction is privately owned property.

And then in 1931 or 1932, they added with the Commission deemed at feasible, but they had not marked boundaries along the river where the Commission Property supposedly commenced and where the landowners' property limits were terminated.

Again, the Master found and we think properly the States didn't know where the boundary was located and they didn't care.

And neither States thought it was necessary in order to settle their problems to identify or pinpoint, where the boundary was at any particular location.

There were lands taxed in Nebraska, which were on the Iowa side or the left bank side of the river, as you look down the stream.

There were some lands on the right bank, or Nebraska side, which were recognizably in Iowa.

Nebraskans were in possession and claiming many of these lands and lands on the Nebraska side.

Iowans were in possession in claiming and some of those possessions came from some claim of a record title, others might have been commenced just with open notorious adverse possession which was possible under Nebraska law.

The two States entered into the Compact in 1943 to settle all these chaos and confusion and as the Master found to accomplish the general purpose of settling and laying the risk, the boundary and jurisdictional problems which existed between the States.

And he found they intended to settle all of their problems arising from the indefinite nature of this boundary and from the work by the Corps in channelizing the boundary.

Now, following the Compact and before we go into the terms of Compact, we think this is also significant.

Parties in possession on the left bank or Iowa side, continued to exercise ownership without disturbance from the State of Iowa.

In many instances the land was placed on the tax rules of the State of Iowa.

Some plant land was placed in the government farm program.

It was clear, some of it was improved.

In 1946, owners of one of the areas about which a great deal of evidence was introduced, Nottleman Island or Bouvet (ph) Island brought a lawsuit against the county officials to have it placed on the tax rules.

Their attorney Mr. Whitney Gilliland who was presently with the Civil Aeronautics Board had notified the Attorney's General Office of the problem.

They have discussed it and the Court found that they claimed the land through Nebraska titles and an issue of ownership, ordered Mills County out with places on the tax rules and it was taxed thereafter --

Unknown Speaker: Mr. Moldenhauer, I supposed this Compact means that this particular litigation is not a boundary dispute?

Mr. Howard H. Moldenhauer: That's correct Your Honor, this litigation is based upon the Compact itself and because Nebraska was a contracting party to the Compact.

Unknown Speaker: So, it's rather unusual as compared with --

Mr. Howard H. Moldenhauer: We think that it's highly unusual and there's very little precedent directly in point, involving this situation.

We think the facts here, Your Honor are very unique and this case really hinges on the facts as they exist.

Unknown Speaker: So, this is in essence is a suit to enforce a Compact?

Mr. Howard H. Moldenhauer: It is Your Honor, specifically.

Unknown Speaker: Was that approved by Congress?

Mr. Howard H. Moldenhauer: That's correct Your Honor, and I want to get into the terms of the Compact, after I get a little bit of this --

Unknown Speaker: And, that I take it, requires a construction of Compact, does it?

Mr. Howard H. Moldenhauer: Yes sir, Your Honor.

The construction or interpretation it really involves the same thing.

It's a question of what does the Compact mean and what effect did it have?

If we had not entered in the Compact, we would not be here.

Unknown Speaker: But, nothing that you're requesting involves a dispute as to where the Iowa-Nebraska boundary is now, under the constitution.

Mr. Howard H. Moldenhauer: Your Honor that is not the basis for this suit.

It will come up that there may be a lot of uncertainty, but it is a part of the Compact, we're not claiming it though, as the basis for our appearance in this Court.

Unknown Speaker: As a matter of fact, the lands about which this controversy swirls are conceded all to be in Iowa, are they not?

Mr. Howard H. Moldenhauer: Your Honor, they are conceded to be in Iowa now because of the Compact and because the Compact placed them there.

And we think this is a very critical point.

In any event, there were other instances after the Compact, where Iowa either disclaimed land in an abandoned channel and they did so in 1956 in the lawsuit.

In Winnebago Bend where they disclaimed land and in 1959 in California Bend where the Court dug another cutoff and Iowa appeared in the lawsuit and did not assert a title, or was not successful in asserting title to abandon channel, which existed.

Unknown Speaker: One last question, the State of Nebraska is here really as it has been suggested attempting to enforce the Compact?

Mr. Howard H. Moldenhauer: Yes sir, Your Honor.

Unknown Speaker: Are you also here as parens patriae?

Mr. Howard H. Moldenhauer: If so, it's just an incidental effect because this involves our 190-mile boundary.

And we do contend that Iowa's conduct, which I will describe in a minute, puts in question and uncertainty all of the 190-mile boundary and really impedes development of the riverfront.

But we are here because of the Compact and what we agreed to.

Unknown Speaker: If in fact, Iowa had breached the provision of the Compact, does Nebraska have a right to rescission?

Have a remedy of rescission?

Mr. Howard H. Moldenhauer: Yes, we thought about that.

I've never seen any cases, where State was successful in rescinding a Compact approved by Congress and if that happened we would have a far greater mess than we have got now.

And, I don't know where we'd end up and we didn't think that as a State, we can ask for rescission.

Unknown Speaker: Well, then I gather your position is that the remedy, if there's been a breached by Iowa must be specific performance.

Mr. Howard H. Moldenhauer: It must be Your Honor, in the form of injunctive relief.

Unknown Speaker: And whoever might obtain it in whatever Court, I take it, is conceded that Federal Law is to govern.

As long as there's a remedy and if the Compact is enforceable by somebody, the construction of Compact is a matter of [Voice Overlap]?

Mr. Howard H. Moldenhauer: Yes, sir.

Your Honor, we feel it's only enforceable in this Court because it's an original action between the two States.

And we don't think Iowa can make her own determination, as to what her commitment is.

Unknown Speaker: But presumably in Iowa, a landholder could claim under the Compact, could he not if Iowa is seeking the quiet title to his land, and he claims the Compact [Voice Overlap]?

Mr. Howard H. Moldenhauer: Oh!

Yes sir, it's not based on his citizenship.

It is based upon what Iowa agreed to and what she agreed to recognize.

Unknown Speaker: He could be a third party beneficiary of the Compact.

Mr. Howard H. Moldenhauer: Yes, sir.

They definitely could be a third party beneficiary.

We do think that the facts in the case are pretty clearly shown though that he cannot effectively defend himself or protect himself, because this river moved across three or four miles.

He didn't have a chain of title, like I have in my house, where I have had one piece of property for 60 years.

It could have been accretion at one time to this section, or this section, or this section, or the section, as the river moved over.

As it went back, they could re-establish the sections, they could call accretion of this section, and the river could be drawn over here, it could have be three or four sections described as accretion to this one.

Or they could be placed on his tax lawsuits.

It's a tremendously complicated process.

Unknown Speaker: You're right on the Compact, he can raise that same point in his own litigation and say that Iowa has not right to go back behind 1943.

Mr. Howard H. Moldenhauer: He can raise it.

Yes, Your Honor.

The problem is that they have not effectively been able to raise it in the past.

There's an Iowa decision, which said for instance in Dartmouth College case, the Compact had no effect upon private titles.

But we think we can show it did have an effect upon private titles.

In 1961, Iowa came out with a Missouri River planning report and I believe the Master forward copies to this Court, which was a first document where they publicly announced a policy of claiming lands on the river.

And there is an evidence how they selected these areas.

They made no investigation of any Nebraska titles.

They didn't talk to the landowners.

They assumed anybody in possession was a trespasser.

If somebody raised the Nebraska title, they automatically called it a spurious and fictitious title.

And all of a sudden, all these farmers, who have these lands since 1963 or farming it found they were under attack by the State of Iowa.

They couldn't borrow on their land, which in partly the operation tremendously difficult and they couldn't understand the situation they've been placed in.

Now, going back to the Compact, which was a compromise.

First, it was an agreement between the two States and Iowa bound herself in this Compact.

The first section, established the boundary and it established it in the middle of this main channel, as it appear on the Corps of Engineer maps.

This made the boundary a fixed line.

It changed the boundary between the States from a movable boundary, in every case to a fix line on the geographic center.

Now, in most instances, that navigable channel, where the river was still the boundary had followed the outside of the bends and it cross back and forth as it flowed down the river.

So that what Compact did was change the location of that boundary, and it changed it to a fix line, so it changed the State's right.

One of the issues is did this change the private riparian owner's right. and we don't think that by changing our state line, we change the line of the private owners, because we think that their lines should have stayed the same.

We didn't take away their right, which was a vested property right.

Unknown Speaker: You mean [Voice Overlap]

Mr. Howard H. Moldenhauer: Pardon me?

Unknown Speaker: You'd have a just compensation above, I take it.

Mr. Howard H. Moldenhauer: Absolutely, but there's been no provision for compensation under anything while it's done.

She's done it supposedly under her common law and this is the basis for planning report, that in Iowa, the common law provides that the State own the beds of navigable rivers.

In Nebraska, the principle is always been that the State has a public easement for navigation, but riparian owner owns it and this includes accretion to the bed of that river.

But, Section 1 changed the situation all along the boundaries.

So, land in its very strict technical sense was transferred back and forth, all along that river.

Then, in Section 2 of course they recognize the lands on each side were ceded and they really operated language in Sections 3 and 4.

In Section 3, they said basically titles, mortgages, and other liens good in Nebraska, shall be good in Iowa, as to lands Nebraska shall cede to Iowa any pending suits could be prosecuted final judgment.

Iowa says, oh yes, you've got to prove it was good in Nebraska, before we have to recognize the title. Our contention is Iowa, you agreed in the context, where you were making no claims.

You agreed in a context, where you recognized the uncertain situations.

You agreed in a context, where you didn't want to find the boundary, you wanted to avoid it.

In a Compact should be construed as the Master read it, to cover all lands in the situation, which existed along the river in 1943, because that's what they were referring to.

Unknown Speaker: But Iowa was promised referred to ceded land.

Mr. Howard H. Moldenhauer: It says, as to lands shall be good in Iowa, as to any lands in Nebraska may cede to Iowa, as to any lands Nebraska --

Unknown Speaker: And, under ceded lands, do you think are those that Nebraska would have recognized before 1943?

Mr. Howard H. Moldenhauer: Yes sir, without the necessity of determining where the boundary actually was.

Unknown Speaker: Without the necessity of proving whether Nebraska was right or not in recognizing --

Mr. Howard H. Moldenhauer: Right Your Honor, because everybody recognize the confused situation and the difficulty of determining where the actual boundary was.

Unknown Speaker: You're saying if a party for instance had a proper chain of title in the Nebraska law and presented that to the Iowa Courts, Iowa should recognize it?

Mr. Howard H. Moldenhauer: Yes sir, Your Honor.

Recognizing again, that that proper chain of title may consist of some possessory rights or a very difficult, what some people may call it paper title, that because you don't have a paper title.

Unknown Speaker: I understand.

Mr. Howard H. Moldenhauer: So, we don't feel that Iowa can conduct herself, because she agreed that they're good.

But then she come and attacked them and we say this is binding on her courts, on her legislative and executive branches.

So she can't say we are going to go and determine our courts, because our courts are also bound by what are commitment was.

That is one basic proposition.

Now, there was also -- you see Section 3, we feel was language of recognition of a situation in private titles, then the States added Section 4, which said that taxes for the current year can be levied on lands ceded to the other State and for one year.

And that any rights under those taxes, accrued or accruing would be asserted in five years or be forever barred in the States would stop taxing across the river.

So, 4, we feel was a limitation on what the States can do, 3 was a recognition of private rights and the States look that this and said now we solved their problem, we have no more problems, we're through.

And we think that this Compact has to be construed liberally to effectuate the intention for which it was adopted and that was to settle all the problems.

We agree with the Master's finding that in any action by landowner or by Iowa along the river that the landowner should not have to prove where the boundary was beforehand.

If he raises some Nebraska title, Iowa should have to recognize it.

The evidence is clear that Iowa didn't even inquire.

And, when the titles were raised, she has said they're spurious and fictitious.

We go a little further and contend that Iowa shouldn't be able to raise all these problems that we ought to be placed in a situation we were in 1943 and for at least 15 years or after, before Iowa starting asserting these claims.

And if that means that Iowa has to recognize the Nebraska owners title to the bed, and Iowa has easement for public navigation, as Nebraska has or it's all the public has, she hasn't been deprived with anything.

There were areas, where the river was entirely in Nebraska, at the time of the Compact.

And in those areas, many of which the States did not want to determine.

Our contention is that the entire bed was in Nebraska.

And when Iowa said titles good Nebraska, shall be good in Iowa.

She is recognizing the title to the bed, she didn't accept it.

Iowa position now is we own the entire bed because it's in Iowa.

Another issue, which has come up was originally decided by the United States Court of Appeals for the Eighth Circuit, I think it was in November of 1960, in which another situation, where there's no question about the facts occurred.

The river was in the design channel, it moved out into Iowa, land build up behind it, and the Corps of Engineers placed it back in the design channel.

This case involved between $12,000.00 and $13,000.00 of damages condemnation by the Corps of engineers for placing the river back into the design channel or the boundary.

The Court of Appeals for the Eight Circuit said the land is in Iowa.

Iowa owns the bed.

Therefore, Iowa owns it and the Nebraska riparian owner was deprived of his ownership.

Iowa has used that principle in order to make her claims to all lands, north of Omaha.

And our position is this, that when we intended to settle this thing, we didn't change the private property owner's boundary, it should have stayed the same, because we couldn't divest them of their property rights without due process of law and without compensation.

Had it not been for the Compact, when that river moved into Iowa, the Nebraska riparian owners' rights, which extended to the thalweg or thread of the stream moved with it, because that's a private property boundary matter.

And it moved over and when the Court put it back without washing away the intervening islands, it was an avulsion, which left that private property boundary remaining over into Iowa and the Nebraska riparian owner should have had preserve to him his right to his accretions.

If it is read otherwise, then we say that Nebraska riparian owner has been deprived of his property without due process of law.

It's very easy to say, the lands in Iowa, therefore Iowa applies, and therefore Iowa owns it.

But the fact is what did the parties agreed to and we say Iowa law is what the Compact provides.

Requiring Iowa to recognize private rights and we say that you have to look and cede.

You'd have to say in the Tyson case, but for the Compact, the boundary would have been clear over into Iowa.

The States avoided the necessity of worrying about that as between themselves but they shouldn't be able to deprive the riparian owner of his rights, because of that, of their agreement.

Unknown Speaker: Mr. Moldenhauer, Nebraska as a proprietor of land isn't involved in this dispute at all?

Mr. Howard H. Moldenhauer: No sir, Your Honor.

We are here because we didn't just agree to a new boundary.

If we had Section 1 and said here's the boundary and stopped, it might be a different situation, but we said no, we have 3 and 4 here, where Iowa have to engage in certain conduct to assure us that we're getting what we bargained for and we agreed to the same thing for you.

Iowa has to rely on Section 1 to show the lands in Iowa, that's the only way she can do it.

And she does rely in Section, so she's relying in part upon that Compact to establish jurisdiction.

Then, she says, jurisdiction establishes our title, because we're in Iowa and we own the bed.

Unknown Speaker: But the basis for the bringing of your suit is here is the original jurisdiction of this Court.

Isn't it there's nothing added to that jurisdiction by the provision for interstate compacts?

So far is jurisdiction is concerned.

Mr. Howard H. Moldenhauer: Well, the jurisdiction is because we entered into the Compact, pursuant to authority of the Constitution.

And this is action regarding that Compact and when the States came into the union, they gave up their right to solve their problems in the other way.

And, when we do it by Compact, this is the proper place to tell us what that Compact means and what conduct is proper pursuant to it.

Unknown Speaker: Would you say then that this Court had original jurisdiction, should exercise original jurisdiction of every single claim that might be made under an interstate compact?

Mr. Howard H. Moldenhauer: I think essentially as between the States, yes.

Because I think if they can't, we're involved into specific one, but if they can't, there no place else where they can go to solve their problems.

And, if they can't enforce their problems somewhere, there's no incentive to enter into Compacts at all.

And this Court has often suggested Courts try to settle their problems, by entering into a Compact.

This is what we did, we think it settled our problems, we think that the Court should tell the State of Iowa and everyone that this is how it settled it and this is what you can do pursuant to it.

Unknown Speaker: But do the jurisdiction of this Court rest on the fact that the parties are two sovereign states?

Not on the fact that there's a controversy about a Compact.

Mr. Howard H. Moldenhauer: Oh no!

It rests on the fact that the parties are two sovereign states and they entered into agreement pursuant to the Constitution --

Unknown Speaker: But whether or not they have, we would have exclusive and original jurisdiction of this lawsuit, because it is a lawsuit between two states, whether the substance of the lawsuit goes out of an Interstate Compact, or goes out of common law --

Mr. Howard H. Moldenhauer: Essentially correct Your Honor, but it has to be a controversy.

Unknown Speaker: It has to be a controversy.

Mr. Howard H. Moldenhauer: That's correct.

Unknown Speaker: It has to be a case of controversy and you say it's a case of controversy because your contractual right for which you gave in consideration are at issue?

Mr. Howard H. Moldenhauer: That's correct, Your Honor, that's correct.

Unknown Speaker: Mr. Moldenhauer, how do you distinguish this case from the old Dakota, North Carolina bond case where in effect, the South Dakota gave consideration for the North Carolina bond, sued on them and this Court declined to exercise jurisdiction, because it said North Carolina that South Dakota is basically suing on behalf of its residence, even though it would have had the nominal title to the bond.

Mr. Howard H. Moldenhauer: Your Honor, that may be that the nominal title may be the distinction.

In this case it involved our boundary which has also been a matter of state interest and when the nations were or states were admitted in the union, controversy as to boundary and agreements as to boundary were in existence in traditional and historical.

Unknown Speaker: But, there's no dispute here as to the boundary, between Nebraska islands?

Mr. Howard H. Moldenhauer: No, because we agreed to where it was, but we didn't just say --

Unknown Speaker: It might very well be, if you can't get what you bargained for.

Mr. Howard H. Moldenhauer: That's right, if we can't get what we bargained for, although Nebraska would never --

Unknown Speaker: You'll be up here with the original boundary line suit.

Mr. Howard H. Moldenhauer: Well, I know Nebraska would never bear arms.

I don't about the farmers here.[Laughter Attempt]

Unknown Speaker: But is there any real dispute as to the present boundary between the State of Nebraska and the State of Iowa under this Compact?

Mr. Howard H. Moldenhauer: There's a real question of where it is, because the documents they used in defining it that were so general that they didn't have a sufficient data to allow a surveyor laid on the ground.

That is not why we're here.

That's another aid in construction Your Honor that they used a very general agreement to generally settle, because they didn't lay it on the ground.

They use maps that are, like road maps, almost.

Unknown Speaker: Did we argue these matters before?

Mr. Howard H. Moldenhauer: We argued everything Your Honor, because --

Unknown Speaker: When you argued this one, there was a case of controversy?

Mr. Howard H. Moldenhauer: Yes sir and we had a two-hour argument and we --

Unknown Speaker: That was back in 1965?

Mr. Howard H. Moldenhauer: 1965 and we went through the whole thing --

Unknown Speaker: And we granted you the file?

Mr. Howard H. Moldenhauer: And you granted [Voice Overlap]

Unknown Speaker: So, we'll cross the bridge, when [Voice Overlap]

Mr. Howard H. Moldenhauer: In fact Your Honor at that time I made the comment, and I'll never forget it that this is Mr. Justice Brennan said, "Isn't true that this is an action to enforce a Compact?"

I said, "Yes Your Honor, maybe you ought to say that and sit down."

And he looked at me and said, "Maybe you ought it."

But, we had to give you the full picture, because we did not want them mislead this Court.

And I don't think we did mislead them, we feel that it is necessary to settle this, because there are approximately 47 miles at the present time, where the river is not located in the boundary.

It's moved out north of Omaha and unless we find out what we agreed to in 1943, it's almost going to prevent at another agreement, which is necessary.

And the present situation we feel impedes the development of lands along the Missouri River and it really results in the government of men and not of laws along the Missouri River.

Your Honor, I wish to reserve the remainder of my time.

Chief Justice Warren E. Burger: Thank you Mr. Moldenhauer.

Mr. Murray, you may proceed.

Argument of Michael Murray

Mr. Michael Murray: Mr. Chief Justice and may it please the Court.

I want to rearrange the order of my remarks a bit due to the line of questions, which the questions which the Court has just been asking Mr. Moldenhauer.

It is Iowa's position that this is not a proper case for this Court to exercise its original jurisdiction.

Chief Justice Warren E. Burger: You'll tell us, I assume very early, why that bridge wasn't crossed in 1965?

Mr. Michael Murray: It's our understanding, Your Honor that whether or not a permission is given to file a complaint is dealt with usually in a sort of a pro forma manner and that if there is any reason why the complaints should be permitted to be filed, this Court will permit it.

But that it still remains for the complainant to prove his case.

And we feel that this Court as any other court should examine its jurisdiction at all stages.

Chief Justice Warren E. Burger: Well, of course the jurisdiction is open at all times to attack Mr. Murray, but not having been here in 1965, I don't have the benefit of the arguments that were made that from what was said this case was not perfunctorily treated, full arguments were had and a great deal of time was devoted to it.

Mr. Michael Murray: Well, we still feel, may it please the Court that Nebraska had the burden of proving facts, whereby she was entitled to an exercise of the Court's original jurisdiction.

And, we feel that now she has had her opportunity to prove those facts and we feel that she failed.

Chief Justice Warren E. Burger: Well, of course you go right ahead and make your argument to demonstrate that Mr. Murray.

Mr. Michael Murray: [Laughter Attempt] There are three basic things that we feel Nebraska failed to prove was that Iowa violated the Compact.

Basically, we feel that she failed to prove that, because the proof is, that what we have done is engage in litigation in a Court of competent jurisdiction concerning the ownership of several of these areas.

We didn't send out the National Guard or the Corp of Game Wardens, or the Highway Patrol to move these people off these islands or off these abandoned channels.

All we did was engage his litigation in this litigation, sometimes as plaintiff, sometimes as a defendant, sometimes as an intervenor.

In the Iowa Courts, of course, because these areas, which the State claims to own are all in Iowa and we simply don't feel that, that was violation of the Compact.

Secondly, we feel that they haven't proved that judicial controversy between these two states.

They fail to prove that because Nebraska has no real and present interest in this matter.

Some of our citizens do, some citizens of Iowa do.

Some non-residents of both States do, but Nebraska has no interest.

She doesn't claim to own any of these areas, which Iowa now claims to own.

That was established by interrogatories and answers into interrogatories.

Early in the pretrial phases of the case.

It is for these reasons for the reason that she failed in her proof that we feel that this Court should not exercise its powers of original jurisdiction in this case.

Unknown Speaker: I just assume for the moment that if it were admitted and perfectly clear that Iowa was breaching the contract, you would still make the same argument here as far as disability was concerned?

Mr. Michael Murray: Yes, sir.

Unknown Speaker: That Nebraska, since it has no proprietary interest, stands to gain no dollars in the sense, has no judiciable interest in enforcing the terms of the Compact, which is entered into as Iowa.

And, has not brought herself within the rules of parens patriae?

Mr. Michael Murray: Yes.

Unknown Speaker: That just a fact that it contracted with Iowa is not enough?

Mr. Michael Murray: That's right.

Unknown Speaker: That a contracting party doesn't automatically have standing to enforce the Compact, even though it gave consideration?

Mr. Michael Murray: That's right.

And, I can't cite you to a case for it.

As far as I know, this is the first case Mr. Moldenhauer said it's a peculiar case.

This is the first case that ever came before the Court, where this sort of a situation exist.

And I don't believe, as far as I know at least, there isn't any prior case on the point.

It's perfectly true that the State of Iowa does assert in this case, and in these cases in State Court, where we think the issues should be decided, that we do own the bed of the Missouri river, in so far as that bed is in Iowa.

And we do assert that we own certain islands, not all islands, but certain islands, which have formed over that bed.

Specifically, the islands which have formed in Iowa over that bed.

If they've formed in Nebraska, we agreed that we do not own them.

Also, we claim to own certain abandoned channels of the river in Iowa, but not all of them.

And the reason for this is that it is the law of Iowa that the State doesn't remain the owner of all abandoned channels.

I think a fair statement of the law of Iowa is that we only own abandoned channels, which are abandoned by an avulsion.

And wherever an abandon channel was abandoned by the process of accretion, by the process of land forming to the shore from a private riparian owner, then the private riparian owner owns that land, as accretion to his riparian shore.

The Iowa rules, I think our best summarized in the case of Holman versus Hodges in 1901, by the Iowa Supreme Court Justice Ladd, which is cited in our brief and the reasons for them are fully discussed in that opinion.

This has been the law of Iowa, consistently since 1856, ten years after we were admitted to statehood.

The Court in Iowa has never deviated and there are a number of cases at least since 1943, where the Iowa Court has said that this is still the law of Iowa.

Iowa owns the bed, Iowa owns accretions to the bed, Iowa owns abandoned channels, which were abandoned by avulsion.

Now Nebraska claims in this case that we signed a way our right to claim ownership of anything along the Missouri River, by operation of that common law, when we entered into the 1943 Boundary Compact.

This is the equivalent of saying that the 1943 Boundary Compact repealed the law, repealed the common law of Iowa, in so far as it would apply to the Missouri River.

We deny that, that happened as a result of the Compact.

And the first reason I would mention for our denial is that the Compact simply doesn't say that.

And it doesn't say anything like that and in a sense it said just the opposite of that.

When Nebraska proposes that the Compact repealed the Iowa common law along the river, she recognizes her responsibility to oppose something to fill the void, which would then be left.

She proposes then that Nebraska Common Law should take over and apply on both sides of the river.

Now that's diametrically opposed to what the Compact said, because Section 2 says that the State of Nebraska, hereby siege to the State of Iowa and relinquish its jurisdiction over all lands not only in Nebraska, but lying easterly of said boundary.

And there was a reciprocal session in the Iowa enactment of the Compact.

By this language we think Nebraska said to Iowa, nevermore will our sovereignty or our jurisdiction, or our land title laws extend east of the boundary and into Iowa.

Contrary to what Nebraska --

Unknown Speaker: Mr. Murray, the consequence of your approach is then that the bed of the river in those parts ceded would actually vested in the State of Iowa.

Mr. Michael Murray: Yes, sir.

Unknown Speaker: Whereas before it had been owned by a Nebraska riparian owner subject to --

Mr. Michael Murray: We don't really agree that it was owned by the Nebraska riparian owner.

We deny that the Nebraska riparian owner had any vested title to it under Nebraska law?

Chief Justice Warren E. Burger: Where was the [Voice Overlap]

Mr. Michael Murray: Prior to the Compact.

Chief Justice Warren E. Burger: Then, where would you say title was in that position?

It was Iowa's land was it?

It wasn't Iowa?

Mr. Michael Murray: Oh!

No.

Chief Justice Warren E. Burger: It didn't belong to the State of Nebraska did it?

Mr. Michael Murray: No.

What I'm saying is as far as we were concerned at least, it was a property of the Nebraska owner, but what I'm saying is that he had no vested title to it.

Actually --

Chief Justice Warren E. Burger: Would you enlarge on that a little bit, because I don't know what kind of title a farmer has if it isn't a vested title in the context that we're talking about.

[Voice Overlap] subject to the hazards of the moving of the river, just because it happens to be located near the bank of a river?

Is that the conformity?

Mr. Michael Murray: I didn't quite understand that question.

Chief Justice Warren E. Burger: Well, I'm trying to get what kind of a title you think the farmer has to this land if it isn't a vested title.

Mr. Michael Murray: Nebraska made her election to become one of those states, wherein the beds of her navigable rivers are privately owned.

In the 1906 case of Kinkead versus Turgeon does say that Nebraska riparian owner owns to the thread of the stream.

The only trouble with Kinkead is that it didn't involve ownership of any bed of any navigable river.

Kinkead involved accretions, which had arisen and were inexistence at the time of the case.

Therefore, we say that when the Nebraska Court said in Nebraska our landowners shall own the thread of the stream that that was dictum, because the case didn't involve ownership of the bed of the stream.

Unknown Speaker: But, if you're trying to find out what Nebraska law is, the next best thing to a holding of the Supreme Court of Nebraska will be dicta to Supreme Court of Nebraska, wouldn't it?

Mr. Michael Murray: That's right.

Now, we think that -- let me say one more thing, first of all we have cited all the Nebraska cases in our exceptions to the Special Master's report, which could possibly be construed as creating a vested right in the landowner to the bed of the stream.

And there is no case in Nebraska, which involves the bed of a navigable stream.

Every case in which any remark has been made about this is our law, private ownership to the thread has involved either accretions in being or it has involved the Platte River, which is a non-navigable stream.

So, we say that all the statements that Nebraska Court has ever made about it are in the nature of dicta.

And, we agree that dicta, perhaps creates the law of Nebraska, but it doesn't create vested rights, which the Nebraska unicameral couldn't change and it's our position in this case that when the Nebraska unicameral ceded to Iowa everything east of the new boundary then it was she it was the unicameral that was changing the law that would be equitable to those areas.

And, they were saying hereafter, the law of Iowa shall apply to them.

Nebraska said that the unicameral couldn't do that, because these landowners had vested rights in the bed of the river.

We say no, they had no vested rights, and therefore, the Supreme Court of Nebraska could have changed their common law concerning ownership of their riverbeds they never have, but they could have.

And legislature possessed the power to change the Nebraska law and in so far as it's applicable to lands east of the boundary, that's precisely what the unicameral did.

The Special Master agreed with us on this proposition and at page 193 of his report, he sets out his proposed rule for determining ownership of lands, which have formed since the Compact, since 1943.

And by the way to give you some idea of what's involved here; Iowa now claims to own approximately 30 areas, up and down the river, between Sioux City and the Missouri State line.

Approximately, eight of these areas were in existence at the time the Compact was entered into.

And the remaining 22 areas have come into existence, since the Compact.

Mr. Moldenhauer mentioned that one case has gone as far as the Eight Circuit concerning the ownership of one of these tracks of land.

A track of land which is now involved here and included in the 30 areas, which Iowa claims to own.

And this case was entitled in Circuit Court, Tyson versus Iowa, decided in 1960.

Mr. Moldenhauer has very roughly, but correctly related the facts of Tyson after 1943, the river escaped from the designed channel, which was west of the area, the area being in Iowa.

It escaped by washing away its left bank and stabilizing structures and ultimately the left bank moved approximately a mile and a half into Iowa.

In the meantime, the right bank or Nebraska bank remained stationary.

When the river acquired a width of a mile and a half, of course it became shallow and an island arose on the Iowa side of the boundary but west of the thalweg of the river.

In other words, on the Nebraska side of the thalweg, but on the Iowa side of the boundary.

Both the District Court, Judge Hickland (ph) and the Circuit Court held that the island belong to Iowa because it had arisen over and has an accretion to the State own bed of the river.

Now, Nebraska recognizes in this case that if they are to have their construction of the Compact, and if they are going to have their way, the Tyson decision must be overruled or at least disavowed.

The Special Master considered that proposition very carefully and concluded that the Tyson case was right.

The law of the Tyson case is valid and that it should not be overruled and disavowed, it's about that simple.

And the law which comes out of the Tyson case, as far as we're concerned is about this, that Tyson's right to accrete by Nebraska law was limited to the state boundary.

And he could not before the Compact and cannot since the Compact accrete by Nebraska law into Iowa.

Secondly, if Tyson were to accrete into Iowa, he could only do so, under Iowa law.

Now, there is a possibility that a Nebraska landowner could accrete into Iowa under Iowa law, because Iowa recognizes that the private riparian owner becomes the owner of accretions which formed to his high bank.

The thing that Iowa law denies is that a private riparian owner of either state can accrete under the water.

Now, Nebraska lets the man accrete under the water, because his boundary, by Nebraska law is the thalweg.

And wherever the thalweg goes, there goes his boundary, but not by Iowa law.

It inheres in the Tyson decision that the Common Law of Iowa, which has been in effect since 1856 is still in effect in inheres in Tyson that it wasn't repealed by the Compact and it inheres in the decision that Iowa didn't sign a way her rights to claim ownership of lands, river beds, and so forth by its operation.

Actually, the Tyson case simply follows a long line of cases by this Court of which Arkansas versus Tennessee is an example.

There've been several Arkansas-Tennessee cases and the one I refer to is 246 U.S. 158.

The Special Master quotes from that decision at page 188 of his report.

So, the law that came out of Tyson isn't anything new.

It's the same law that this Court has been applying for years.

Also, I might mention that in order for Nebraska to have her way about this case, the case of State of Iowa versus Raymond by the Iowa Supreme Court in 1963 would have to be overruled and disavowed.

Unknown Speaker: Was the Compact pleaded in that case?

Mr. Michael Murray: No, but it inheres in the case that the Iowa Common Law is the Iowa Common Law.

Unknown Speaker: Well, indded do you think that if Nebraska's right on the construction of Compact, let's assume the Special Master is right on his construction and your exception is overruled, would the provision of the Compact be a defense in a suit like the case you just mentioned?

Mr. Michael Murray: No, I don't so.

Unknown Speaker: You don't.

Mr. Michael Murray: I am not sure I understand the question, Your Honor, but I --

Unknown Speaker: Well, you don't think the individual landowners have any rights to claim under the Compact?

Mr. Michael Murray: Oh!

Sure they do.

I am sorry if I --

Unknown Speaker: Well, let's assume that the Master is right on his construction of the Compact.

Mr. Michael Murray: Yes.

Unknown Speaker: That would Iowa lose its suits against these individual landowners?

Mr. Michael Murray: No, just some of them.

Now, actually --

Unknown Speaker: Has the Compact ever been raised in any of these Iowa suits in Court?

Have Compact rights have ever been asserted by private landowners?

Mr. Michael Murray: Tyson's secondary position, I would say, in the Tyson case was that a Compact didn't affect his rights.

So, in a manner of speaking he was raising a Compact, but it was in a negative manner.

Unknown Speaker: Should the Compact be available to them?

Mr. Michael Murray: It's available to everybody that has an interest in those river lands and the ownership of them.

Unknown Speaker: Well, if the Special Master is right in his construction of the Compact, if you were the lawyer for Tyson, wouldn't you plead it?

Mr. Michael Murray: Yes.

But I've got beat, because Tyson never did have any rights to accrete into Iowa and the Compact doesn't create that right in him either.

Unknown Speaker: Yes well the Master held that.

Mr. Michael Murray: Yes.

Unknown Speaker: (Inaudible).

Mr. Michael Murray: And that's the part of the Master's report, which we do not accept to.

Unknown Speaker: But Nebraska does?

Mr. Michael Murray: Nebraska accepts to that.

My time is almost up and I haven't gotten even to our exception, which is to the Special Master's proposed rule for determination of ownership of the areas, which had formed prior to 1943 and which were in existence at that time.

We feel the Master is wrong about that rule, because he --

Chief Justice Warren E. Burger: We'll extend you about three more minutes and enlarge your friend's time accordingly.

We've taken up a good deal of your time, so you proceed for another three minutes.

Mr. Michael Murray: Thank you, Your Honor.

The effect of the Special Master's rule for pre 1943 areas is to destroy utterly the law which we've always known as the law of boundaries or as the law of accretion.

And he supplants another law in place of it.

In to the (Inaudible) under the Special Master's proposed rule for the pre 1943 areas goes, the presumption in favor of accretion and against avulsion.

Under the Special Master's rule, Iowa would be deprived of the benefit of that presumption, which this Court recognizes and as far as I know, every Court that ever had an opportunity recognizes.

He destroys the presumption in favor of the permanency of boundaries, which this Court utilized in the former case of Nebraska versus Iowa and where this Court said in substance, what is more natural when people are dividing lands to use a river as a boundary.

Unknown Speaker: What's the same thing as the presumption in favor of accretion isn't it?

Mr. Michael Murray: Practically the same, the result is the same, yes.

What happens under the Special Master's rule to the proposition that a state suing another state for violation of anything must clear, must prove her case, by clear and convincing evidence, it's gone.

And what happens to the rule?

That any presumption must overcome by clear and convincing evidence.

Now, the Special Master's rule simply wipes out all those things, which we have thought for years, where the law of accretion, the law of boundaries and puts the thing entirely on one basis as to the areas prior to 1943.

And that basis is was very title in Nebraska to it as of 1943.

My time is up.

I thank you very much.

Chief Justice Warren E. Burger: Thank you Mr. Murray, Mr. Moldenhauer I will give you seven minutes if you think you need it.

Rebuttal of Howard H. Moldenhauer

Mr. Howard H. Moldenhauer: May it please the Court.

One thing that we think it's important to analyze is a fact, which Iowa apparently is overlooked and that is that when they entered into Compact, they changed the laws along the river to a fix boundary.

Now, all the five previous riparian laws were based upon the fact that when a person is subject to having his property taken away by moving one of the river, he is subject to having it added to, as the river goes the other way.

And that is the rationale for all of those arguments, there isn't going to be any decision, which said you can accrete across the state line, usually where you have a movable boundary, because a movable boundary is the same for the state as it is for the private riparian owners.

But now we've changed the situation, we entered into a Compact with a fix line and I think that requires an analysis then of, is the rationale still there?

Iowa cites all these early common law cases and said this has always been the common law and we don't dispute that.

And in those situations there were presumptions, we can't dispute that, but we can't say we sat down in 1943 and superimposed the new situation by contract.

And this changed everything required by examination.

Iowa likes to use the presumption that the river moved gradually into its location and would argue from that, that therefore in 1943 the river was the boundary.

But the Master's findings negate that fact and the facts and all the mass of evidence in this case negates that fact.

And if the presumption was that there was a boundary, we didn't need a boundary Compact.

We recognize it wasn't the boundary and the Master so specifically found.

Iowa utilized the presumptions in this manner and she did so in the Schemmel case, which started trial in 1964.

And then trial has been postponed until the decision in this case.

But she offered evidence with two witnesses in the Schemmel case and rested.

And then I think we've quoted it in the briefs somewhere, counsel stated originally that, initially, they are going to rely on the presumption of gradual movement of the river into its present location.

So anything on the eastern or left bank side would be in Iowa.

At the same time, in interrogatories in this case, Iowa admitted that she knew that a canal was dug in Nebraska in 1938, in that location and yet she's relying on the presumptions.

And the evidence in this case, in the Schemmel case shows a canal a mile long placing the river in the designed channel, along with other movements by dikes and revetments in the Schemmel area, but Iowa, by being able to utilize the presumption puts a tremendous burden on the landowner of coming back in and having to establish how the river got there in the past.

This means old documents, old witnesses, evidence is gone, it has been lost and destroyed and the Corps of engineers itself was not a record-keeping body.

And many of its records were thrown away.

So it puts the landowner if he got to rebut that presumption in an extremely difficult position and extremely expensive position.

A tremendous amount of time and effort has been spent in getting evidence in this case; very few farmers could afford that type of litigation or defense of that type of litigation.

We say when Iowa said in Compact that titles will be good.

Again, we have to determine which ones, but when she says they're good, that doesn't mean that we said we're going to put you now landowner over at Iowa, although she admits they're good she can attack your title at any time and put that tremendous burden upon you to rebut all the presumptions and come in establish that you've got a good title.

We don't think that we send our citizens over there to give them a forum, which changes the jurisdiction, and from the change in jurisdiction, a change of ownership followed.

When Iowa said titles good in Nebraska, will be good in Iowa, we say it had to apply to the bed also in both sides because there were many places where both sides of that bed were in Nebraska.

She didn't say we're going to accept that title and take the title of the bed.

So, by saying Iowa law applies, Iowa law is I owns the bed; it's negating completely Iowa's agreement that the title to that part, good in Nebraska would be good in Iowa.

Let me conclude them by saying that Nebraska is here as contracting party with a right to enforce the Compact.

Iowa apparently only wants to enforce Section 1 of the Compact, but we say that if only Section 1 is valid, then we have lost the complete consideration for the remainder of our bargain.

We feel that the Compact should be read in the manner in which it was intended in 1943 and were that great object can be seen, it should be effectuated and that was to settle and later rest in all of these problems, which existed along the Missouri River.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

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