Cases by Issue - Federal-State Ownership Dispute

United States v. Alaska - Oral Argument

Fri, 09 Jan 2009 14:49:36 +0000

Case:

United States v. Alaska

Media File:

118orig_19920224-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Jeffrey P. Minear

Chief Justice Rehnquist: We'll hear argument first this morning in No. 118 Original, United States against Alaska.

Mr. Minear.

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

This original action is before the Court on cross motions for summary judgment.

The question presented is whether the Secretary of the Army acted within his authority when he refused to issue a permit for construction of the Nome Port Facility unless Alaska agreed that the construction would be deemed not to alter the location of the Federal/State boundary.

Some historical background is necessary to understand this case.

This Court ruled in a 1947 decision, California I, that the Federal Government rather than the individual States owns offshore submerged lands.

6 years later Congress enacted two statutes: the Outer Continental Shelf Lands Act; and the Submerged Lands Act which divided the offshore submerged lands between the Federal and State governments.

Congress gave the States those submerged extending, as a general matter, 3 miles from the coastline.

A dispute then arose whether coastal construction such as port facilities should be treated as part of the coastline for purposes of the Submerged Lands Act grant.

This Court ruled in California II that harbor work should be treated as part of the coast.

The Court concludes that there was no inequity in measuring the coast submerged lands grant based on structures that the State itself had built, because the United States, through its control over navigable waters, had the power to protect its interests from encroachment and quote, the effect of any future changes could thus be the subject of agreement between the parties.

The Army, which issues permits for offshore structures under section 10 of the Rivers and Harbors Act revised its permitting regulations in response to the California II decision.

Those regulations now provide that the Army will take into account the effect of the proposed coastal construction on the Federal/State boundary when determining whether to issue a permit.

The Army applied those regulations to the City of Nome's proposed port facility.

The Army refused to issue the permit unless Alaska disclaimed entitlement to any additional submerged lands.

Alaska argues that the Army had no authority to impose that requirement.

We disagree.

Congress has directed the Army to regulate the placement of structures in navigable waters.

The relevant statute, section 10 of the Rivers and Harbors Act, contains a complete prohibition on the creation of any obstruction to navigation.

It then gives the Secretary of the Army the power to allow exceptions on a case-by-case basis where structure work is recommended by the Corps of Engineers.

Thus, section 10 expresses a legislative policy against the placement of structures in navigable waters except where the Secretary affirmatively determines that the structure should be allowed.

Section 10 does not identify specific factors the Secretary should take into account in authorizing such structures.

The Secretary accordingly takes into account a whole range of factors relevant to the public interest in light of the policies Congress has articulated in other laws.

This public interest review process is certainly reasonable.

Nothing in section 10 suggests the Army should exercise its permitting authority without regard to the policies that Congress has stated elsewhere.

This Court recognized that point in United States v. Pennsylvania Industrial Chemical Corp., and Greathouse v. Dern, which both indicate that the Rivers and Harbors Act gives the Secretary broad discretion to grant or deny permits.

Unknown Speaker: Mr. Minear, can I ask, what is the Government's position under section 10 and under this waiver or for that matter, under all waivers, with respect to a natural accretion that is caused by the construction of the artificial structure?

Mr. Minear: That is a factor that would be taken into account in building the structure, and I think that is a very relevant point in this sense, the structure might cause downstream erosion, shoreline accretion, which could result in actually bringing the boundary landward and would affect the State's grant of submerged lands.

That is a factor that the Army will take into account in determining whether to issue a structure.

Unknown Speaker: I am not talking about whether the Army will take it into account in determining whether to issue the permit.

I am sure it will.

But suppose the permit is issued subject to a waiver such as this; does the waiver include the State's power over any extension of the State's boundary caused by natural accretion which is in turn attributable to the artificial structure?

Mr. Minear: Yes, I think this disclaimer would in fact cover that.

Under the specific terms of this disclaimer, much depends on how the disclaimer is worded.

Unknown Speaker: You have to go and figure out how much natural accretion along the shoreline is caused by the construction of a jetty that was subject to a waiver like this?

It makes it awful complicated, doesn't it?

Mr. Minear: With all respect, Your Honor, this is only going to arise in most cases with respect to the leasing of mineral rights.

If the State or the Federal Government decides to lease mineral rights, it will in fact issue a notice and the parties will contact the relevant agencies, any party interested in leasing property, to locate the boundary.

Unknown Speaker: No, but it is the case that I just can't look at the shoreline and say, well, except for natural structures, I know that the 3-mile is measured from the shoreline and you are telling me that if some of that shoreline may be up-current or down-current, I don't know how accretion works, has been altered by reason of the artificial structure, I cannot count that part of the shoreline for determining the 3-mile limit.

Mr. Minear: Well, Your Honor, that is a practical consequence of the way this particular disclaimer is worded.

A disclaimer could eliminate that problem.

The likelihood of the problem arising is also minimized by the fact that one aspect of this project is a littoral drift monitoring program which was designed to assure that there would be no accretion or erosion as a result of the construction of this structure.

The party that has the permit here, the City of Nome, is under an obligation to monitor any such changes, and if they do occur, it is under an obligation to prevent them from occurring.

So although this raises a theoretical difficulty under this particular disclaimer, I don't think it has a great deal of practical consequence in light of other factors relevant to the--

Unknown Speaker: Does the Corps exact similar waivers in connection with structures on a river?

Mr. Minear: --In those cases it is likely not to because it does not affect offshore mineral rights.

Unknown Speaker: That could very much affect the boundary between one State and another on a river.

Mr. Minear: That's right, and that is a factor that the Corps could take into account.

I am not sure--

Unknown Speaker: What do you mean when you say the factor, a factor the Corps could take into account?

Take into account in doing what?

Mr. Minear: --In determining whether to issue the permit or not and what are the appropriate conditions for issuance of the permit.

Unknown Speaker: But you say that the Corps does not generally exact waivers in connection with streams or rivers within the United States.

Mr. Minear: Well, frankly, I am just not certain about that practice.

The structure of the Corps' permitting process is to take into account any factor, any consequence, both physical or legal, that might result from the addition of a structure in navigable waters.

Unknown Speaker: But supposing that a State applies to build a dam on a river and the river is on an interstate boundary and the prospectus or study says there is a chance that there will be some erosion on one side of the river, accretion on the other and it might alter the boundary of the State some, how would the Court take that into consideration?

Would that be a negative or a positive effect?

Mr. Minear: As a general matter, the Corps attempts to preserve the status quo, exactly as in this case.

There is a need for stability with respect to boundaries, particularly boundaries for submerged lands that can be subject to accretion or erosion.

So the Corps' basic perspective on this is that we don't want the structure to be altering settled expectations with respect to property rights.

Unknown Speaker: So the structure... the point of my earlier question, Mr. Minear, is that I am inclined to agree with the Government that section 10 allows you to take into account whether it will alter the ownership of submerged lands, but to say that you can take it into account is not to say that can condition the permission upon this kind of waiver.

The greater does not necessarily include the lesser.

And if indeed one of the consequences of having these waivers is that the shoreline is always going to be subject to debate as to whether some natural accretion has occurred by reason of an artificial structure under such a waiver, I am more inclined to think that your choice is either to let it go forward in which case the coast is altered as the structure causes, or else, not let it go forward.

Why isn't that a conceivable version of section 10?

Mr. Minear: Well, with all respect, Your Honor, the Corps, what the Corps is attempting to do here is to stabilize and provide definiteness with respect to title.

That is what the disclaimer did in this particular case.

That is what the littoral drift monitoring program also did with respect to this case.

Much depends on how the disclaimer might be crafted and in fact, the Army allows the State to draft a disclaimer and then determines whether or not the disclaimer would appropriately protect Federal interests.

But the ultimate interest that the Federal Government is asserting here is in fact the stability of title, the fact that we do want to have certainty.

Unknown Speaker: Now, Mr. Minear, I take it that if there is accretion or erosion through natural causes, the boundary is ambulatory?

Mr. Minear: That is generally true, although this is a matter that is changing, as this Court issues particular decrees with respect to--

Unknown Speaker: But absent the decree, the Government agrees that the land would be ambulatory in that case?

Mr. Minear: --The land would be ambulatory except that where disclaimers are in effect or where this Court has entered a decree fixing a boundary.

Now that is always one alternative to ensure that there is a stable Federal/State boundary.

Unknown Speaker: Would you have authority, would the Government have authority to tell Alaska that it's going to condition the permit for construction of this structure on making the entire boundary of Alaska fixed as of this time?

Mr. Minear: I think that might run into problems, two types of problems at the outset.

It could be an arbitrary exercise of the Corps' power.

As a general matter it seems, we would think that this disclaimer should be tied to specific governmental interests that are identified--

Unknown Speaker: But I thought you said you had a governmental interest in having stable boundaries.

Mr. Minear: --Oh, we do, we do, and we exercise that on a case-by-case basis with respect to these individual projects.

At a broader sense, this seems inconsistent with the notion that was expressed in Nollan that a permit condition should be closely related to the reason why the Government could deny the permit.

Now here we submit that there is no question, that the Government could deny the permit based on the affect that it would have on the change in Federal property rights.

If it can deny the permit on that basis, it ought to be able to impose conditions that protect those interests; in other words, provide a less drastic alternative.

Unknown Speaker: Mr. Minear, the Submerged Land Act expressly states that it is in the public interest for the States to have title to submerged lands within 3 miles of their coastline.

Does that statutory articulation of public interest affect the resolution of this case, do you think?

Mr. Minear: We think as a general matter that is a policy that is also of interest to the Army, but what the Army does here is that it looks to the consequences of the building of the structure.

As it stands now, the State has received exactly those lands that were granted under the Submerged Lands Act.

The building of a structure would in fact reduce the United States' grant of lands under the Outer Continental Shelf Lands Act; that is a factor that the Corps should be allowed to take into account.

If the structure actually went the in other direction, if it actually diminished the lands that the State presently owns with respect to the Submerged Lands Act, then the Army would take that factor into account, and the basis for that would be the policy that is set forth in the Submerged Lands Act.

Unknown Speaker: The Government doesn't end up with any net loss, right?

It loses the length of the structure at one end and picks it up at the other end.

Mr. Minear: No, with all respect, Your Honor, it does not.

The United States would not gain any property in this particular case.

First of all, the United States grant or the Outer Continental Shelf Lands Act extends to the end of the outer continental shelf, so it is fixed... it is a geographic matter.

In this case, all of the land up around Norton Sound is continental shelf, it is all less than 200 meters deep.

And this particular location is on Norton Sound.

If you went south from Nome through Norton Sound, you would eventually hit Alaska again.

Nome is located on the Seward Peninsula.

As a more general matter, even if you had a straight boundary and you were extending the line, I think it is helpful to look at the map we have, the last page of the joint appendix.

The effect of adding a point on the coastline is to create an are of additional land that is created, that is encompassed within the boundary.

So although the causeway only occupies 5 acres, it ends up transferring, if there were no disclaimer, over 700 acres of land.

Now in the case of a straight boundary, where we would be concerned perhaps with the 200-mile exclusive economic zone limit, this is another boundary that we have that is apart from what we have discussed here, using the causeway to extend the exclusive economic zone could extend that, but it would only be if it was an absolutely straight coastline.

If there was some other point upstream or downstream that also goes out, the drawing of the arc would in fact eliminate the factor that you get from the causeway.

Now the Secretary's consideration of the effect of the proposed structure and the location of the causeway is simply one part of its public interest review process.

As the Secretary's regulations recognize, the location of the coastline has great significance because it can determine the location of international and Federal/State boundaries, and even where foreign relations concerns are absent, a shift in the location of the coastline can, as in this case, divest the United States of its interests in the outer continental shelf.

Congress has stated that the outer continental shelf is a vital national resource reserve, held by the Federal Government for the public.

Thus, it is entirely proper for the Secretary to consider, as one element of the public interest review, the effect of a proposed structure on the location of the coastline.

In the absence of such a review, portions of a vital national resource reserve would be transferred without any formal Government consideration from Federal to State hands.

The Secretary's public interest review process, including his consideration of the effects of the proposed structure on the location of the coastline, reflects a commitment to faithful execution of the law.

It ensures the Secretary takes full account of all of Congress' policies before he authorizes construction that can impact on a wide variety of public concerns.

It is also consistent with this Court's decision in California II, which recognized that the United States has the ability to protect itself from artificial changes in the coastline through its power over navigable waters.

Furthermore, it produces a sensible result.

In this instance, the City of Nome applied for a permit to construct port facilities projecting more than 1/2 mile into Norton Sound.

The Army learned through consultation with the Solicitor of the Interior Department that the resulting change in the coastline would divest the United States of potentially valuable mineral resources.

The Army therefore reasonably insisted that a permit would not be issued unless Alaska entered into an agreement preserving the existing Federal/State boundary.

The Army was entitled to deny the permit because of the adverse affect that the construction would have on the location for the boundary.

Unknown Speaker: As a matter of curiosity, Mr. Minear, what kind of minerals are possible there?

Mr. Minear: The mineral... the leasing program that is ongoing at this point, and in fact, request for leases were submitted, no bids were received, but the primary mineral of interest in the case of those leases was gold.

There is also a possibility in Norton Sound of oil and gas, I think oil primarily.

However, there is no active leasing program.

There might be such a program in 1996.

I also understand that a permit has been issued for gold prospecting as opposed to simple leasing for exploration in the Norton Sound area as well, and that is for gold.

I would like to note some of Alaska's arguments here.

Alaska mistakenly argues that section 10 limits the Army's inquiry to navigational and environmental concerns.

Section 10 contains no such limitation and indeed, suggests a far broader inquiry.

Virtually any structure place in navigable waters obstructs navigation, and section 10 authorizes the Secretary to allow such a structure, despite the adverse impact.

So obviously the Secretary must look to factors other than navigation in determining whether to issue a permit.

As Alaska concedes, there is no dispute that the Army can take into account the public interest, including Congress' environmental policies, in determining whether to issue a permit.

There is no principle basis for distinguishing between Congress' policies articulated in environmental laws and those articulated in other statutes such as the Outer Continental Shelf Lands Act.

Alaska is also mistaken in arguing that the result we urge here will detract from this Court's supposed goal of a single coastline for international and domestic purposes.

This Court has never stated that it has an overriding goal of establishing a single coastline.

The Court adopted the coastline definitions--

Unknown Speaker: Upholding a what kind of--

Mr. Minear: --A single coastline.

Unknown Speaker: --As opposed to what, a double coastline?

Mr. Minear: Alaska's theory here is that there should be, the same coastline should be used for measuring both the Federal/State boundary and international boundaries.

And in fact, there are divergences that exist in any event.

As the Court adopted the definitions in the international conventions because they provided definiteness and stability with respect to offshore property rights and not to produce a single coastline.

And as this Court noted in California II, a change in the international conventions would not change the definitions for purposes of the Submerged Lands Act.

Unknown Speaker: What are the divergences that occur anyway?

Mr. Minear: They occur in several respects.

The clearest example is in the case of the Gulf side coast of Florida and the coast of Texas.

In the case of both of those States, they received a grant of 3 marine leagues rather than 3 miles of submerged lands.

This Court determined in United States v. Louisiana that the coastline for the purpose of that grant would be determined on the basis of the coastline at the time of admission and would not include any subsequent artificial structures.

More recently, we stipulated to a coastline, a baseline for the purposes of closing the Chandeleur Sound off the coast of the State of Mississippi and that baseline also was not necessarily the same as the baseline that would be established for international purposes.

Alaska is also mistaken in arguing that California II's discussion of the United States' control over navigable waters was made in reference to Congress' constitutional power over navigation rather than the Army's permitting authority.

The Court's reference to the Government's power to resolve future disputes by agreement can refer only to an executive power.

Congress enacts laws.

It does not enter into agreements.

And the Special Master's statements, which this Court cited with approval, expressly refer to the Government's permitting process and the need for governmental approval.

In sum, we believe that the Army has the authority to require this sort of disclaimer in these circumstances, and we therefore request that the Court grant the United States motion for summary judgment.

Unknown Speaker: The problem is that if you don't have the power to condition, that you wouldn't have the power to refuse this permit?

Mr. Minear: I don't think it would necessarily follow.

I suppose... under our theory it would, it seems to me, to us, that if we have the power to deny the permit, we have the power to condition it.

I think it would be unusual if we had the power to condition it, but not--

Unknown Speaker: If you don't have the power to condition, you don't have the power to refuse it--

Mr. Minear: --Yes, that would be--

Unknown Speaker: --if it otherwise satisfies the... if the only objection you would have is because it extends the coastline, you couldn't refuse it under your theory?

Mr. Minear: --I believe that is a last... maybe I am getting confused here, but our theory is that we can deny the permit based on its coastline--

Unknown Speaker: I know, I know.

But what if you can't?

Mr. Minear: --And if we can't, then I believe that the logic of our position would be that we would have to grant the permit.

Unknown Speaker: Yes.

Isn't it Alaska's position that you have no power here to refuse the permit?

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

Thank you, I would like to reserve the remainder of my time.

Unknown Speaker: Very well, Mr. Minear.

Mr. Gissberg, we will hear from you.

Argument of John G. Gissberg

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

We believe that the Army Corps' disclaimer practice is open-ended and mandatory and missing the essence of the Submerged Lands Act and also some fundamental principles of Government in this country.

This causes them to badly misjudge the public interest in both law and in fact.

We don't believe that the Outer Continental Shelf Lands Act or the Rivers and Harbors Appropriation Act of 1899 causes any other result.

In essence, this is simply a case of statutory construction, whether the Army has the statutory authority to require a disclaimer that fixes a State's seaward boundary at a line that is different from the 3 miles from the coastline that was granted to the States by Congress in the Submerged Lands Act.

Unknown Speaker: I thought your position went farther than that, that whether or not it extends the coastline or extends a State line, the boundary, whether or not it does it not a proper consideration in determining whether to issue the permit or not.

Mr. Gissberg: This is correct.

My next sentence is getting to that point.

Unknown Speaker: All right.

Go ahead.

Mr. Gissberg: But we start with the coastline and I also want to emphasize that Alaska, although we were not a State when the Submerged Lands Act was passed, under our statehood compact we did become a State, specifically that compact provides us the benefits of the Submerged Lands Act.

Congress, in enacting that Submerged Lands Act, spoke directly and clearly and couldn't have spoken more plainly that the States own submerged lands to 3 miles from the coastline.

They knew then, as has been known from the beginning of time, that coastlines are not stable.

They change through all sorts of natural forces and manmade modifications.

Under acts of Congress and international law that has been adopted by this Court, the rule is that those ambulations of the coastline result in corresponding changes to the seaward boundary, wherever that is and whatever seaward boundary it happens to be.

In this case, we are talking about the 3-mile limit, but the same consequence happens on the 12-mile Federal territorial sea and on the 200-mile exclusive economic zone that the Federal Government has.

This is a fact of life on the ocean and the Army Corps of Engineers cannot change that by administrative fiat.

By doing this administratively and venting their own exception to this rule that Congress laid down, they are absolutely ignoring the Submerged Lands Act, which is the one single act that directly, squarely addresses the States' rights to submerged lands.

Unknown Speaker: Mr. Gissberg, could the Corps of Engineers have said when you applied for a permit, it looks to us as if this is going to extend the State's seaward boundary, therefore we are going to turn it down.

We are going to say no.

Mr. Gissberg: Mr. Chief Justice, absolutely not.

And in this case, of course, the State didn't apply for the permit, and about a year later we got a letter saying that Nome wasn't going to get the permit unless the State waived it.

No, they do not have that authority.

Congress spoke clearly that this is an ambulatory formula.

We have a fixed formula.

Unknown Speaker: So it isn't... let's assume you are correct about the formula, why can't the United States or the Corps of Engineers simply say, we don't want to risk any changes in the outer boundary, we are not going to let you build it?

Mr. Gissberg: Because the Army Corps is a creature of Congress, Mr. Chief Justice--

Unknown Speaker: Well, of course it is, but that doesn't answer it.

Mr. Gissberg: --My answer is that they only have the power that Congress gave them and that power starts from the Rivers and Harbors Act.

Unknown Speaker: But the Rivers and Harbors Act says you can't build any structure in navigable waters except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army.

Mr. Gissberg: Mr. Chief Justice, the Government compares section 10, which the Court has just read, to section 13, which they reference in Pennsylvania Chemical case, and we think... and Pennsylvania Chemical said that regarding putting pollutants into navigable waters, the Army Corps had discretion to say no, they will not allow those pollutants to go in.

We don't believe they have that same discretion under Article 10 and here is why.

Article 10 was developed for completely different reasons than Article 13.

Article 13 is to protect those waters from something that is bad, pollution.

Article 10 is to do something good to those waters, to enhance the navigable capacity.

In 1888 in the Willamette case, the courts of the United States said that there is no prohibition of putting any single obstruction in navigable waters in the United States.

So in 1890 the Congress enacted the precursor of this Rivers and Harbors Appropriation Act of 1899.

They purpose of that act was to enhance navigation.

As a part of that, they told the Army Corps of Engineers that there will be no obstructions to the navigable capacity of the navigable waters of the United States.

When the Army Corps of Engineers takes that authority and says this means that from 1899 to the present day, we could say that nobody will build a pier, nobody will build a wharf, nobody will build a causeway, nobody can do anything in the waters of the United States.

We don't think that that is what Article 10 says.

Unknown Speaker: What factors can the Secretary take into consideration in refusing to authorize a construction project?

Mr. Gissberg: Yes, Mr. Chief Justice, from 1899 until 1968, the Army Corps of Engineers, by their own admission in the Federal Register cite that the Government has put in, took into account one factor, and that was navigation, enhancing navigation.

If a project enhanced navigation they accounted for that.

In the 1960s and '70s, there is a series of cases saying that the Army Corps of Engineers is allowing things to happen that are destructive of the waters of the United States.

The Army Corps of Engineers can only consider public interest that is articulated by Congress.

The first time this happened was in 1956 in the Fish and Wildlife Coordination Act.

In the Fish and Wildlife Coordination Act, the Army Corps could say, this project is good for navigation, but it is not good for anadromous fish, so therefore we are not going to put it in.

Then in 1969, the National Environmental Protection Act was passed.

Before that though, the most important one was that in 1953, the Congress looked at the ownership of submerged lands offshore and they said the States are going to have it to 3 miles from the coastline.

Unknown Speaker: You don't think that preserving the property of the United States is one of the public interests of the United States?

Does that mean the Department of the Interior does not?

I don't know that there is a special statute that says the Secretary shall evict people who poach on United States lands, but I am sure it is part of the public interest of the United States to preserve territory owned by the United States.

Isn't that self-evident?

Mr. Gissberg: Justice Scalia, I think it would be if it were not for the Submerged Lands Act.

The Submerged Lands Act is the only act that Congress has directed specifically to tell us what happens with submerged lands.

Unknown Speaker: But the Submerged Lands Act doesn't say that the effect of structures can be to decrease the territory owned by the United States.

Mr. Gissberg: The Submerged Lands Act, Justice Scalia, says that the States will own the lands to 3 miles from the coastline, that coastline is ambulatory.

Everybody knows it changes.

So the Federal--

Unknown Speaker: We are not talking now about the waiver.

We are talking about the right to refuse.

I agree that if the Government gives a waiver, you can argue that that contradicts the Submerged Lands Act because it causes the State to own less than the 3 miles.

But I am just now talking about the Government's simple right to refuse.

You want to build a structure, the Government says... I am not contravening the Submerged Lands Act.

I am not saying you can build it, but you can't have your 3 miles, I am just saying, you can't build it because it will take away territory of the United States.

What is the matter with that?

Mr. Gissberg: --The problem with that, Justice Scalia, is that Congress addressed those Federal interests in the outer continental shelf in May of 1953 when they enacted the Submerged Lands Act and then in August when they enacted the Outer Continental Shelf Lands Act, and they realized there would be some changes in that baseline.

Actually, when they enacted the Submerged Lands Act, the took all of the Federal lands and all 36,000 square miles of the 3-mile limit and gave it to the States.

There was an immense national interest in those lands.

We are talking about 730 acres that doesn't have anything on it to the best of our knowledge, and we are saying that that is going to be subverted by an Army Corps decision that that is in the public interest.

I don't think we can do it.

Unknown Speaker: I just find it hard to believe that once you acknowledge that all interests, all governmental interests and not just the interest in navigation can be taken into account in determining whether to deny the permit, I cannot imagine that one of those interests cannot be whether the Federal Government will lose territory.

I mean, that seems to me an obvious governmental interest.

Mr. Gissberg: Justice Scalia, it somehow isn't as obvious to me because I have looked exactly at what Congress has said, and in our briefs we have gone through, there are probably 20 different laws of Congress that have been enacted that the Army Corps of Engineers has to look at.

One of those says that that coastline is ambulatory, natural or artificial causes, it moves in and out.

Now the hypothetical that the Court is raising is one where we are not talking about a waiver.

We are just saying that they can't issue that permit.

I believe that once they accept the permit application, once the permit application is given to them, that they are bound to act on that permit application in accordance with the laws.

If I go to the Federal Government for a fishing license and I am qualified for the fishing license or a driver's license or to be admitted to the bar, they can't... of course, they have authority to issue those permits, but it is not in their discretion.

Look at Article--

Unknown Speaker: No one is disputing that, I don't think, Mr. Gissberg.

The question is, what factors can they take into consideration under the laws that exist?

Mr. Gissberg: --Yes, Mr. Chief Justice, I believe that in the 1968 cite to the Federal Register, the Corps admits there that we are now going to take into account more factors than just navigation.

They list a long variety of laws there that they can take into account.

Every single one of those factors in their public interest review, if the Court will compare their regulations at 33 CFR 320 to the statutory authority that they list, every single one of those regulatory criteria that they compare with is related to an act of Congress except this one, and except the ownership one.

And the only thing that is related to the ownership one is the Submerged Lands Act.

In fact, in their own law, the Outer Continental Shelf Lands Act and Submerged Lands Act, in their own regulations in 320, it says property interests will not be a factor.

Unknown Speaker: Suppose we don't agree with you in that regard, Mr. Attorney General; suppose the Government just turns you down?

We say that the Government has the power and the Government just turns you down.

Do you think that if you then went to the Government and said, look, we want this pier.

We offer to waive any change in the coastline if you grant this permit.

And the Government says, well, we don't condition it on that, but we will just make a contract about it.

Do you think that would be enforceable?

Mr. Gissberg: No, I don't.

I think the Army Corps has to have the authority to do that from Congress, and that is what this Court was talking about in--

Unknown Speaker: I know, but we say that they have authority to turn... say that they have the authority to turn the permit down and you think then that there is no way that the State and the Federal Government could make an agreement that would permit the building of the pier without extending the coastline.

Mr. Gissberg: --I see.

From my point of view, I would require an act of Congress that said that there will be no... nothing done to the coastline that affects the State seaward boundary, and then I would say, yes, that is giving them that as some authority.

Now I would think that Congress would definitely not do that.

They would give the Court some formula to weigh the public interest, maybe the $25 million causeway and 17 acres that are covered up and the boats that come in and the good that is done for the City of Nome and Northwest Alaska would be a part of that.

I think it would be if Congress did it.

Unknown Speaker: You don't question then the authority of Congress to explicitly adopt a regime such as the Corps has adopted in this case?

Mr. Gissberg: This is, Mr. Chief Justice, the job of Congress to do--

Unknown Speaker: And you concede that Congress does have that authority had it chosen to do so, you say it has.

Mr. Gissberg: --Absolutely, and in fact, we interpret the Court's suggestion that is being taken as a mandatory direction now because this is happening on every single causeway and every single beach project... we only could find 17 through 1991, but every one that is coming up now, the Corps requires these disclaimers.

In this Court in 1965, in the second California case said that there could be legislation and agreements to do this.

That is what has to be done before the Court has this authority.

They can't substitute their judgment for Congress.

Unknown Speaker: You think that that statement in one of the California cases that the United States could protect itself was just misguided?

Mr. Gissberg: Not at all, I think that it has to be read--

Unknown Speaker: How can it protect itself if it must issue the permit?

Mr. Gissberg: --Justice White, that statement in the California case specifically says it can protect itself through its authority... powers over navigation.

That is the navigational servitude, plus its authority under the Rivers and Harbors Appropriation Act to allow or disallow projects that interfere with the navigable capacity--

Unknown Speaker: But the logic of your position, Mr. Gissberg, is that assuming a particular project does not interfere with navigation, that the Federal Government is powerless to prevent a State from artificially extending its coastline for the very purpose of gaining title to submerged lands in some valuable area.

I mean, that is the logic of your position.

Mr. Gissberg: --This Court has actually said, I have been looking at the second half of that sentence in California II, but this Court in California II said that... they directly addressed that to unwarranted structures, and an unwarranted structure would be one that doesn't have any navigational benefit or any other benefit under the laws of Congress.

Unknown Speaker: Yes, but may I interrupt there.

I don't see why under your theory that the State must have a navigational purpose.

Why couldn't the State under your theory decide, as Justice O'Connor suggested, they would like a little more territory and if they found an area in which there is no navigational problem and no environmental problem, would just build a jetty out for 2 miles for the express and sole purpose of getting more territory.

It seems to me under your theory they could do that.

Mr. Gissberg: Well, I think actually under what this Court may have said, that they can do that.

Unknown Speaker: That is a correct summary of your theory?

They could do that, couldn't they?

Mr. Gissberg: Let me clarify that, Justice Stevens, because this Court has said that unwarranted structures may be suspect, and unwarranted though in terms of navigation.

So if a structure is being put up just for the sole purpose to extend the State's land, I believe that the laws that we are now operating under do not allow the Army Corps of Engineers to turn that down if it has any navigational purpose.

But the--

Unknown Speaker: Well, this particular jetty could have been twice as long.

Mr. Gissberg: --It was supposed to be, but it took too long to finish.

Yes, of course, it could have been.

It could have been 10 miles long.

Unknown Speaker: And you would say that the Federal Government would have to issue the permit.

Mr. Gissberg: I would say that the Federal Government would not be able to deny the permit on the basis of changes in the ambulatory boundary.

If a 20-mile long causeway serves 1 percent more of the navigational benefit than a 2 mile causeway and the interference to navigation because of the extra 8 miles is substantial, that is the judgment call that they have to make.

Unknown Speaker: But my hypothetical is that it is neutral on navigation, it is either high enough so the ships can go under or something, but assuming my hypothetical has absolutely no impact on either navigation or environment, it is just a way of acquiring territory, sticking a 10-mile jetty out into the ocean, that you could do, I think under your theory because Congress hasn't thought about the problem and--

Mr. Gissberg: They haven't--

Unknown Speaker: --and hasn't legislated against it.

Mr. Gissberg: --Justice Stevens, they haven't thought about the problem, but this Court has thought about the problem in two cases.

One of them is the California II case in '65, where this Court said that unwarranted structures could be addressed by the parties.

The second one, though, is the Texas Boundary case which is cited in the Plaintiff's reply brief at page 11 and it is not cited for that proposition, but in that case, the Court, this Court said that... they were talking about a change that would let the State of Texas have a... would get some extra mineral land.

And this Court said that, quote, any alleged inequitable treatment and detriment to the orderly mineral development by allowing ambulations must be resolved by looking to Congress for relief.

And we believe that is exactly what is done here.

The Corps of Engineers is not going to Congress for this authority.

They are inventing this authority on their own and they don't... Congress hasn't given them the statutory authority to do that.

Unknown Speaker: Mr. Gissberg, has Congress given you or given the State of Alaska the statutory authority to alienate what it might get under this theory of 3 miles ambulatory boundary?

Mr. Gissberg: Justice Souter, our State's 3-mile limit lands are subject to a public trust doctrine, and under our State constitution and State law, we may not alienate those properties except to another governmental entity, for example, the City of Nome.

We did in fact give 17 acres to the City of Nome to build the causeway.

Unknown Speaker: If State law allowed you to do it, is there anything in the Submerged Lands Act which precludes your alienation for some other purpose?

Mr. Gissberg: No, Justice Souter, because the Submerged Lands Act in opposition to the Outer Continental Shelf Lands Act states that it is in the public interest to grant to the States title to and ownership of the submerged lands.

Unknown Speaker: So your argument is strictly that the Corps does not have the power to require and not that you do not have the power under Federal law to alienate?

Mr. Gissberg: Oh, yes, Your Honor.

Unknown Speaker: Okay.

Mr. Gissberg: The Federal law does not affect the State's right to alienate.

Unknown Speaker: Does any governmental entity which is the restriction you mentioned in your anti-alienation statutes include a grant to the Government of the United States?

Mr. Gissberg: Justice Kennedy, we could grant to the United States, to a city, a municipality, any governmental agency.

Unknown Speaker: So if that is true, if your counsel had said, you know, this is a difficult area of interpretation and you had offered initially to waive, the Government could have entered a contract with you to waive the extension of the boundary, I take it?

Mr. Gissberg: It would have been our property and we would have had title and ownership to it and I think we could have entered into an agreement with them.

Let's say for some reason the Government did need that property, the Navy is going to build a base or there is some fish spotting device out there run by the National Marine Fisheries Service, and they need it.

I think it becomes our property, the 730 acres, we could trade it for property someplace down the beach or--

Unknown Speaker: Then if the rights of the parties are in doubt, I can't see why that isn't also a ground for the Government to insist on the contract, simply to avoid litigation.

Mr. Gissberg: --I think that is probably true, Justice Kennedy, but we do not believe that the rights of the parties are in any doubt at all.

We believe the Submerged Lands Act squarely this addresses this issue and is absolutely clear.

It says that the States get 3 miles from an ambulatory baseline--

Unknown Speaker: You don't think reasonable people could disagree on that proposition?

Mr. Gissberg: --Well, I certainly do not disagree with what Justice Kennedy has said.

We have talked about this in some detail.

This is not just affecting the State of Alaska.

It is not just affecting the Nome causeway.

The City of Nome happened to apply for this particular coastal construction project.

The Corps of Engineers permits projects on the coasts of the United States all over the country.

We found 12 with disclaimers so far.

We now have evidence from their... they have an internal guidance that has just come out in which they say that the district engineer, whenever there is a project that may effect the baseline will request a waiver from the affected State.

So this is not going to be subject to any kind of an agreement anymore.

And that is one of the problems with the Courts suggestion to us in California II.

They said we could talk about this through legislation or agreement.

But the State of Alaska is over here, the City of Nome applies for the permit to the Army.

A year later the Army writes the city of Nome and the State of Alaska a letter in July of 1983 saying we are not going to give this permit unless the State waives its claims out here.

That is not an agreement.

Unknown Speaker: Let's say however that we say that the Corps may turn down the permit because of boundary considerations, but that it cannot condition... impose the condition.

Let's assume that that is logically consistent and legally consistent.

Is that the end of the matter?

You don't think there is any way that the State then may arrange with the Government to build the causeway and not change the boundary?

Mr. Gissberg: Justice White, is the example that they can, they can turn down... they don't have to give the permit, but they can condition--

Unknown Speaker: They may turn down the permit, but they can't it and condition it.

Mr. Gissberg: --Okay, I understand.

In that case, and if Congress gave them that authority--

Unknown Speaker: No, no, let's forget about Congress.

There wouldn't be any way for the Government and the State to issue the permit and not have the boundary changed?

Mr. Gissberg: --Justice White, I think if the Government would recognize that maybe for an instant that becomes our property then we can clearly enter into an agreement with it, but that would take a fundamental step for them to take that they haven't taken yet.

So we would not enter into an agreement about something that they won't let us own.

Unknown Speaker: Do you claim that if you entered into the agreement, if for example you and the Federal Government said, look, we will agree to disagree as to whether we get this for an instant or not, and you simply entered into an agreement which you requested, not a condition of the approval, you requested to enter into this agreement.

Do you claim that the agreement would not be a valid agreement and a binding alienation, in light of your answer to Justice Kennedy?

Mr. Gissberg: I think that it would be.

We would have to interpret the rights to the 730 acres in one way, even though they would disagree.

Unknown Speaker: So all you are really saying is, we just wouldn't do it unless they will salve our lust for title by agreeing that we get it for at least an instant, we simply wouldn't agree, but you admit you could agree and that the answer to Justice White's question is, it is not the end of the matter, and Nome could end up building its causeway anyway after we had agreed voluntarily to alienate what we claim we had.

Mr. Gissberg: Well, we sure wouldn't do it voluntarily.

Nome would have to pay us something for giving them... it would be kind of complicated.

Unknown Speaker: It would depend on how much you want the jetty.

Mr. Gissberg: We don't want it... yes, it would, and that is the problem, there are a lot of projects in the State of Alaska, this isn't just the City of Nome that is doing it.

It is private people that have things they might want to put out there and the State of Alaska now has a veto power over it.

Let the Army Corps of Engineers get a permit from the Navy to build a causeway down in Adak and ask us for a waiver and maybe we will balance that off against the Nome waiver.

But this is the problem in this kind of a case.

It is open-ended.

There is no rhyme or reason to it.

It is something that the Corps of Engineers has invented--

Unknown Speaker: The State of Alaska can always say to Nome, if they really don't approve of the project, Nome, we won't grant any waiver.

Mr. Gissberg: --The State of Alaska, under what the Army Corps of Engineers is doing, could do that.

We don't think that is what Congress thought any of the States could do.

This Court has said that those grants are unconditional and--

Unknown Speaker: But at any rate, the State of Alaska is not the prisoner of Nome's desires for a long causeway.

Mr. Gissberg: --No, Nome is who is being held hostage here by the State of Alaska and the Army Corps of Engineers, actually.

We think that what the Army Corps here is doing is not only misinterpreting, they are ignoring the one act that addresses submerged lands, and they have to rely on the Rivers and Harbors Appropriation Act because that brings the Secretary of the Army into... gives him some authority to issue exceptions to these permits.

But under statutory construction rules, the only governmental agency that is allowed to interpret statutes is the one that has the power, and so they can't interpret the Submerged Lands Act.

If they did, they would find there are no gaps in it.

It is absolutely clear and that is why they have to go all the way back to 1899 and try to create this authority.

They shouldn't be doing that.

They should be going to Congress for this authority.

There are two things that they also miss in addition to the statutory interpretation problem.

One is the separation of powers.

They are pretending like they are Congress.

Congress has said that they should do this.

This Court in the Texas Boundary case said that anything that changes the ambulations should be resolved by looking to Congress.

They have also upset the balance of federalism because the people that decide what the States' rights are are the duly elected representatives of Congress, of which the State of Alaska happens at this time to have three.

We have nobody sitting on the Army Corps of Engineers.

And the Solicitor General's Office has said to this Court that the status quo is to be maintained and so we have to have a fixed boundary.

Alaska now has a 3-mile limit that becomes 2-1/2 miles off Nome.

That is not the status quo.

The status quo is an ambulatory baseline.

It is a functional formula that this Court laid down in 1965 based on the law of the Sea Convention.

The formula is what is stable.

Everybody can figure out where the 3-mile limit is and where the State's lands are.

Under the Government's formula you have to be able to know whether or not... right above the Nome causeway is another causeway.

Right below it is the Cape Nome causeway.

Neither of them have disclaimers on it.

The 3-mile limit pops out in those places, as it pops out at the 12-mile Federal territorial sea.

So we totally disagree with the implications of what is happening here.

It is not creating... what they are doing is not creating any stability.

It is causing additional confusion, and we think this Court ought to correct it.

Unknown Speaker: Thank you, Mr. Gissberg.

Mr. Minear, do you have rebuttal?

You have 8 minutes remaining.

Rebuttal of Jeffrey P. Minear

Mr. Minear: Yes, Your Honor, there are a few points I would like to make.

First, I think it is important to focus on what the Army Corps of Engineers is faced with in these circumstances, and it is a very practical problem.

Structures are built or parties apply to build structures in navigable waters, and what the Army Corps of Engineers does is attempt to evaluate all of the consequences of placing that structure in the water, both the physical and legal.

One of the consequences can be a change in the boundary and what the Army attempts to do is to maintain the status quo.

Now by keeping the boundary at the same location, that really serves the purposes of both acts here, both the Submerged Lands Act and the Outer Continental Shelf Lands Act.

If gives effect to both of those statutes because both parties get what they had originally planned on receiving.

Unknown Speaker: But if stability isn't the law of the boundary, I don't really see much to that point, Mr. Minear.

If the law says that the boundary changes when the land form changes, to say that we are going to exact waivers so that that principle doesn't come into operation, I don't see it as much of a principle.

Mr. Minear: Your Honor, first, with respect to the notion, the questions concerning the ambulatory nature of the boundary.

Congress has never stated in the Submerged Lands Act that the boundary is ambulatory.

That was this Court's interpretation in California II, the same decision in which this Court recognized that the United States could reach agreement about these matters.

Unknown Speaker: United States could what?

Mr. Minear: This is the same case in which the Court recognized that the United States could reach agreements about these matters, California II.

Unknown Speaker: Pull the lectern up a little bit.

I have a hard time hearing you.

Mr. Minear: With respect to the question of whether the boundary is ambulatory, the Congress did not state that policy; rather, the Court adopted that policy in California II.

Subsequently, Congress provided an avenue for fixing the boundaries in the Submerged Lands Act in section 1301(b).

It provides that boundaries can now be fixed by decree of this Court.

But more importantly, I think--

Unknown Speaker: In which event, it would not change thereafter?

Mr. Minear: --That is right.

Unknown Speaker: No matter how much erosion?

Mr. Minear: That is correct.

It will be fixed.

Now, I think it is important to recall that the question at stake here really is title to these submerged lands and to the mineral resources.

As far as the uncertainty that might exist because of disclaimers, that is rectified simply by a party who is interested in obtaining a lease, checking with the appropriate governmental authority for the location of the boundary.

You perform a title search in the same way that you would assert in any other type of real estate, and there is nothing unusual about that.

With respect to the question that Justice Scalia raised at the outset about the accretion from the natural structure or from the artificial structure, I have been informed there is case law in the States that indicates that once an artificial structure is built in a navigable river, the subsequent accretion and erosion does not change the boundary if it is a consequence of the building of the structure.

Perhaps that same principle would apply in the outer continental shelf and the boundary, the coastline situation.

I don't think we have any cases on that with respect to Federal--

Unknown Speaker: Mr. Minear, do I understand that the policy of the Corps of Engineers now would be that even if a private landowner wanted to repair or construct a dock on the shoreline, that permission would be given only if the State in which it is located executes some kind of waiver?

Mr. Minear: --Not necessarily.

Unknown Speaker: Is that the universal policy to be followed now by the Corps?

Mr. Minear: This refers to harbor works.

A dock that does not have a low water mark would not affect a change in the coastline for purposes of the Submerged Lands Act.

That was decided in California III.

So we are talking about primarily very large structures, causeways, other major buildings that will have a significant effect, and in fact, our records indicate there have been about 17 instances since 1970 where this problem has arisen.

Now with respect to Justice Stevens' observation that the State could build a structure simply to obtain offshore lands, imagine that consequence in the case of Prudhoe Bay for instance, where there are very valuable known mineral resources that are located there.

This could result, and again, without any formal Government consideration, of a massive transfer of valuable mineral resources.

Unknown Speaker: Congress can pass a statute... I mean, if that happens... that is not something that the Federal Government is disempowered from preventing.

You are just saying that under the current statute it couldn't be prevented, but as soon as somebody tried it, you would get a statute pretty quickly, don't you think?

Mr. Minear: Perhaps, but I don't think Congress should be forced to act on these matters when we have an expert agency that can in fact deal with these problems.

Also take into account the situation, if there were leases in effect offshore of Nome, if we had actually leased that property, the extension of the boundary would make those leaseholders good faith trespassers and could put their interests at risk.

There is a very strong interest here in maintaining a Federal/State boundary and not having it change by artificial structures.

That serves both the Federal Government's interests and the States' government's interests, and we think this Court should recognize and uphold that principle and grant our motion for summary judgment.

Unknown Speaker: Do you want to change your answer to my question, just before you saw down before or not?

Whether if you don't have the power to condition, you don't have the power to turn the permit down.

Mr. Minear: I believe we should have the power to turn down the permit, yes.

It seems to me--

Unknown Speaker: Even if you can't condition it?

Mr. Minear: --Even if we can't condition it.

It seems illogical to say that we couldn't condition it, I suppose that is where the problem really is.

As long as the condition applies with the rationale in Nollan, we should be able to impose conditions that offer a less drastic alternative to outright prohibition.

If there are no further questions--

Chief Justice Rehnquist: Thank you, Mr. Minear.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Utah Div. Of State Lands v. United States - Oral Argument

Fri, 09 Jan 2009 14:48:29 +0000

Case:

Utah Div. Of State Lands v. United States

Media File:

85-1772_19870323-argument.mp3

Related Transcript:

1986_85_1772_argument.xml

Transcript:

Argument of Dallin W. Jensen

Chief Justice Rehnquist: We will hear arguments first this morning in No. 85-1772, Utah Division of Lands against the United States, et al.--

Mr. Jensen, you may proceed whenever you're ready.

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

This case is here on a writ of certiorari to the Court of Appeals for the Tenth Circuit.

It is an equal footing doctrine case and involves the ownership of the bed of Utah Lake.

Utah Lake is the largest fresh water lake in the State of Utah; has a surface area of approximately 150 square miles; is located in Utah County, which is roughly 40 miles south of Salt Lake City.

Unknown Speaker: Is Provo on the lake?

Mr. Jensen: Yes, not right adjacent, but within a few miles, Your Honor.

Utah bases its claim of title on the equal footing doctrine.

One aspect of that doctrine is that states when they enter the Union receive the beds of the navigable bodies of water within the states.

These lands are held in trust by the United States pending statehood.

Thus, Utah asserts that when it entered the Union on January 4, 1896, it acquired the title to the bed.

The United States, on the other hand, while conceding navigability and admitting that ordinarily Utah would have received title at statehood, asserts that it, in fact, retained title when some seven years prior to statehood the bed was withdrawn and reserved as a reservoir site by the United Geologic Survey.

The Court below held for the United States and ruled that title did not pass to Utah at statehood.

The authority asserted for the 1889 withdrawal of the lake bed is an Act of Congress which was enacted in 1888.

That act authorized the United States Geologic Survey to investigate the arid region of the United States to determine the extent to which it could be redeemed by irrigation.

U.S.G.S. was authorized to select reservoir sites and segregate irrigable land in this arid region.

The Act provides that all lands selected as reservoir sites, canals, ditches, as well as the lands made susceptible of irrigation by such reservoirs, canals, or ditches were reserved as property of the United States and not subject to entry, settlement, or occupation.

It is Utah's position that that act did not fall within the exception that this Court has recognized in order to defeat Utah's title.

As recently as 1981 in Montana v. United States, this Court summarized the rules that govern the exception; held that the United States may sometimes convey the bed of a navigable body of water prior to statehood if it is necessary to perform an international obligation or to satisfy a public exigency.

However, that intention to convey must be clearly and plainly expressed.

Unknown Speaker: Mr. Jensen, do you think the public exigency requirement is anything more than a congressional policy?

Do you think that's a constitutional requirement?

Mr. Jensen: I do, Your Honor, in the sense that in order to defeat state title, an exigency must be... must exist.

I think that--

Unknown Speaker: Well, I would have thought, perhaps, the only thing the Constitution, itself, would require is a public purpose appropriate to the territory for the Federal Government to retain land as against the State.

Mr. Jensen: --No.

Our position that it... that it requires more in order to defeat the constitutional entitlement that any appropriate public purpose is not enough, that it--

Unknown Speaker: Where do you find that in the Constitution, the public exigency requirement?

Mr. Jensen: --It is not in the Constitution, itself.

It is in this Court's analysis of the constitutional requirements for the exception.

In other words, in Montana, the Court noted that an Indian reservation, for example, may be an appropriate public purpose.

But unless it rises to the level of an exigency, that alone is not sufficient to defeat state title.

Unknown Speaker: Do you think there is any difference at all when the Federal Government wants to keep it for itself as opposed to conveying it to a third party?

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

The... again, the exception that has been recognized is for the conveyance in the situation where the United States no longer has title at the date of statehood, and this, then, keys off the trust that the United States is holding that land in trust for the States.

And if it has it at statehood, it cannot just simply say,

"We think we have a better use for it; we're going to withhold it from you. "

Unknown Speaker: So, in your view, there is no mechanism by which the Federal Government could retain land that, otherwise, would pass to the States under the equal footing doctrine.

Mr. Jensen: Not as we interpret this Court's decisions, there must be a conveyance.

We take an additional position that even if the--

Unknown Speaker: Have we ever had an occasion to address the situation before, if when the Federal Government wants to keep something for itself?

Mr. Jensen: --We think the Court has.

In Montana, in Choctaw v. Oklahoma, and in the Holt State Bank case, each of those cases involved land... navigable waters that were within the boundaries of an Indian reservation.

And in each of those cases the Court did not allow the analysis to stop at the reservation stage.

It moved on to see if there had been a conveyance.

And if there had not been the conveyance, then State title vested.

The only... in Holt State Bank and in Montana, the reservation clearly included the bed or clearly included the stream.

Unknown Speaker: But General Jensen, all three of those cases involved the question of whether a conveyance to a third party was valid.

They didn't involve this question.

There's no third party involved here whereas there was in all three of those cases.

So I don't think you've really responded to Justice O'Connor.

Mr. Jensen: It certainly was not nearly as direct as it is here, Your Honor.

Unknown Speaker: Well, it's a different situation.

There it's a question in each of those cases is whether there had been a conveyance.

The problem we've got here is when there is not claim of a conveyance to a third party, is there a mechanism by which the United States can reserve property for its own use that will, in effect, survive the creation of a new state, and which I don't think we have addressed before, have we?

For example, is... say they wanted to keep property in a military reservation; could they do this, or whether the United States could do that: West Point and the Hudson River or something or... could they possibly have done that consistently with equal footing doctrine?

Mr. Jensen: We... we think not, Your Honor.

Unknown Speaker: You think not?

Mr. Jensen: That they could not.

Unknown Speaker: But there's... you have no authority for that proposition?

Mr. Jensen: No.

Beyond the analogies to the cases.

And you say... they're not... they're not a square fit.

But--

Unknown Speaker: That's a real problem for D.C. statehood then, isn't it?

I mean, the United States could not reserve sovereignty over the Capitol if D.C. should become a State?

Why is that?

Well, all you're talking about, Mr. Jensen, is the bed of navigable rivers, isn't it?

Mr. Jensen: --That's right.

Unknown Speaker: Which... that's what the equal footing doctrine--

Mr. Jensen: Right.

Unknown Speaker: --applies to, not to lands--

Mr. Jensen: That's right.

Unknown Speaker: --In general.

Mr. Jensen: We're not... we're not reaching other public lands.

We realize that the United States has those and can do with them as it--

Unknown Speaker: But the question is whether, say they have a naval base an the Anacostia River or something like that, could the United States reserve title to the Anacostia River, if it created a State for the D.C., assuming the river is within the boundary of the District.

I don't know whether it is or not.

Mr. Jensen: --No.

We think it could not.

Unknown Speaker: It could not?

Mr. Jensen: It could not do that.

And in response to Justice Scalia's case, no.

We think it we could avoid it because the Capitol is not on the bed of a navigable river.

Certainly as to the land within D.C., they could... the United States can do as it sees fit.

Unknown Speaker: Would reserving sovereignty, as opposed to just title over the bed of a navigable river be any different from reserving sovereignty over any other chunk of land as far as the equal footing doctrine is concerned in principle.

I mean, if there's some constitutional obstacle to the Government's doing that, then why would--

Mr. Jensen: Well--

Unknown Speaker: --I don't understand what's magic about the bed of a river--

Mr. Jensen: --Okay.

The--

Unknown Speaker: --as opposed to the Capitol, for example.

Mr. Jensen: --The Court in Montana stated that the reason, at least one reason, is that because the control of property underlying navigable waters is so strongly identified with sovereign power of government, then it will only be held that it will be conveyed for the exigency situation.

And I think that then goes back to the original concept that the thirteen Colonies acquired the beds of navigable streams as part of their entitlement under the Revolution.

Unknown Speaker: But General Jensen, supposing we go back to the beginning and ask what, say Massachusetts joining the Union, and supposing one of the beds of the river had been conveyed by a monarch, an English monarch before when they set up the Colony, would he have had to do it for any special reason or maybe just gave it to a friend because he wanted to give him a little patronage?

Could he have taken that out of the--

Mr. Jensen: The... as we understand the law there, those lands were held in trust for the public for public purposes: navigation, boating, fishing, and related type uses.

And that--

So, no, the Crown could not have just simply given it to his... could not have given it to his friend.

That was a... held in public trust.

Unknown Speaker: --The lands in the Colonies were?

Mr. Jensen: That's right.

And so when the States succeeded to that title, they, likewise, not only got the land, but they got the responsibility under the public trust.

And the States are limited in what they can do with those lands.

They can do some things, but they're still impressed with the public trust.

And that is why, I think, this Court has been very cautious in the situations where it has allowed the State title to be defeated because it is so identified with the sovereign power of State government.

Unknown Speaker: But we have allowed it to be defeated in one instance?

Mr. Jensen: Yes.

In--

Unknown Speaker: And what makes that different?

Mr. Jensen: --In the Choctaw case, the Court concluded that there had, in fact, been a conveyance for the benefit of a third party, namely the Indian tribe, not just a reservation, but the tribe ended up with a title interest in the property, and, likewise, concluded that in that circumstance, there was a exigency that needed to be satisfied.

Unknown Speaker: Now why does that have anything to do with the... with the rationale for the constitutional prohibition that you just described?

I mean, given the reason for the constitutional prohibition, why should it make any difference whether you've conveyed it to a third party, or you want to keep it for the United States?

In fact, I would think you're better off keeping it for the federal sovereign than giving it to some selfishly interested third party.

Mr. Jensen: The... the reason is, again as we see it, simply goes back to the constitutional nature of the doctrine: that the State is entitled to it as part of its sovereignty; that the opportunity to defeat that should be very narrow and very limited.

And that is why the Court has characterized the ownership by the United States as "in trust".

And if the United States is able within a fairly wide spectrum to say,

"Well, we don't see why Utah needs the bed of this stream or this lake. "

"We think we have a better purpose for it. "

then the trust really loses its sanctity and, in the end, the equal footing doctrine... States that are coming in under the new and defined doctrine would be somewhat less than the States that are already in.

I mean, obviously, the State would prefer no exception.

But we realize there is one.

We believe here that the United States is arguing for a much more expanded exception because, not only do we have the problem with the ability to do it, we say that even if the Court were to allow this... were to allow the United States to do this conceptually, this reservation doesn't satisfy the criteria that the Court has staked out.

In other words, the Act here, it was broad, general.

It referred to the arid region of the United States.

There was no reference to Utah Lake specifically, no reference to sovereign lands generally, certainly no conveyance in the Act and none authorized.

We submit that, in this situation, even if the Court were to consider expanding the rule, that this reservation falls way short of what should be required.

Unknown Speaker: Well, the... there... the... there was designation of Utah Lake, wasn't there?

Mr. Jensen: Yes.

The... not in the Act.

Unknown Speaker: No, I understand, but there was a designation?

Mr. Jensen: Yes.

The United States Geologic Survey designated the Act, or designated the--

Unknown Speaker: Well, what does the Act say, and when did the Act say that it would be reserved?

When there was a designation which was reported to Congress?

Mr. Jensen: --The Act states that

"All lands made susceptible of irrigation by the reservoirs, and the reservoirs are hereby reserved from sale. "

Unknown Speaker: When?

Mr. Jensen: That's... I assume that when the designation is made that it is then reserved.

Unknown Speaker: Well, how do they make the designation?

Reporting it to Congress?

Mr. Jensen: It doesn't say.

Unknown Speaker: Well, was there later congressional action?

Mr. Jensen: The United States says the Congress later ratified it, but after the U.S.G.S. reserved it by the administrative act.

And we don't deny that they specifically focused on Utah Lake.

Unknown Speaker: How do you know they did it?

Mr. Jensen: We don't think they legally did it, but factually--

Unknown Speaker: Well, is there some record that they did it?

Mr. Jensen: --Yes, there is.

Unknown Speaker: Have you ever seen it?

Have you ever seen it?

Mr. Jensen: It's in the Joint Appendix, yes.

It is a--

Unknown Speaker: They just got it in their own files; is that it?

Mr. Jensen: --No.

What they did is they... the U.S.G.S. Director sent a letter to the Department of Interior saying,

"I think Utah Lake would be a good reservoir site; I think you ought to withdraw it and reserve it. "

Unknown Speaker: Well, what about the claimed later--

Mr. Jensen: Okay.

Then what happened is U.S.G.S. filed its annual reports with Congress after that.

And the 1888 Act was repealed in 1890.

But the Repealer preserved the reservoir sites already withdrawn.

And the Respondents argue that by filing that report, those reports, and the fact that Congress, even though it repeated the Act, preserved the existing sites, that that is a congressional ratification that is sufficient to take them the rest of the way.

Unknown Speaker: --And don't you think that Congress knew which ones had been designated?

Mr. Jensen: No.

Well, excuse me, Your Honor.

I... I think, again, for the... for the States' constitutional entitlement to be defeated, that it requires more than just the filing of the reports with Congress and no further expression.

The 1890 Act did not say a word about Utah Lake.

It did not say a word about sovereign lands.

In fact, it--

Unknown Speaker: This is your alternative argument because under your first argument, it wouldn't make any difference if Congress had--

Mr. Jensen: --No.

Well--

Unknown Speaker: --It had specifically purported to reserve it?

Mr. Jensen: --That's right.

And, of course, we argue if they had... if the Respondents had no power in first instance to do it, the fact that they did it and reported it to Congress--

Unknown Speaker: But you say there wasn't really a reservation anyway?

Mr. Jensen: --That's right.

That that was not sufficient to--

Unknown Speaker: Doesn't make it clear enough?

Mr. Jensen: --Doesn't make it clear enough; that we're entitled to more; that we ought to have... we ought to know when those sovereign entitlements are defeated; and that this three-step process the United States argues is not enough to do that.

And finally, although we've touched on the exigency, we feel and submit that there was no exigency involving Utah Lake.

The Lower Court found the facilitation of irrigation a public purpose motivated by a public exigency.

The Respondents argue that even less is required, that all that is necessary is a appropriate public purpose.

But again, as I have stated, this Court in Montana said that

"No. "

"You must have the exigency or you cannot defeat State title. "

The... we believe the legislative history of the 1888 Act demonstrates that the problem that Congress was addressing was a problem on the public domain; that the public land law such as Desert Land Act being abused by speculators who were acquiring these reservoir sites and irrigable lands and, thereby, thwarting the the settlement of the West as Congress had originally intended.

Unknown Speaker: Well, did the Statehood Act indicate that the State wasn't going to get any title... any title to lands that had been reserved by the Federal Government?

Mr. Jensen: There is some language in Utah's Enabling Act dealing with Federal reservations, Your Honor, that... there's nothing in there that addresses--

Unknown Speaker: Well, what does it say?

Mr. Jensen: --I--

Unknown Speaker: Well, that's all right.

Mr. Jensen: --I apologize.

I simply--

Unknown Speaker: Well, Counsel, doesn't it say in the Utah Enabling Act that it excepts out other reservations of any character?

Isn't that the language?

Mr. Jensen: --That is essentially what it is, Your Honor.

Unknown Speaker: And the Government argues this is a reservation?

Mr. Jensen: That is... that is true, but again, I think that addressed the typical type reservation, the Indian reservation, the military reservation.

It did not address an administrative withdrawal of the lake bed, that the... the taking of the lake bed was done by the simple administrative withdrawal.

And we don't think it falls within the parameters of that... that document, the Enabling Act.

Further, with respect to the exigency, we submit that, as far as any of the public land law abuses that were occurring, Utah Lake could not have been part of that problem.

Utah Lake was not subject to settlement, entry, or occupation under the public land laws.

It was being held in trust for the State.

The United States had recognized as much when it segregated the Lake by survey of the seander at the Lake starting in 1856 and ending, essentially, in 1878, ten years prior to the passage of the 1888 Act.

Further, the bed was, or... was, and is water-covered.

Settlers could not simply have gotten in to settle it, enter it, or occupy it.

And finally, if it is true that the purpose of the 1888 Act was to facilitate irrigation, water development in the West, Utah Lake was already fulfilling--

Unknown Speaker: May I ask you another question, Mr. Jensen?

Supposing that before Utah became a State, the United States realized there would be vast mineral resources under this lake or other riverbeds and decided to lease them out to private developers or convey them... to sell them to private developers, would it be your position that... and there's no public exigency; they just thought it would be a good way to make some money... would that conveyance be valid or invalid?

Mr. Jensen: --No, not in our view, Your Honor.

Unknown Speaker: They could not have done that?

Mr. Jensen: They could not have done that because of the trust.

Thank you.

Argument of Edwin S. Kneedler

Chief Justice Rehnquist: Thank you, Mr. Jensen.

We'll hear now from you, Mr. Kneedler.

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

Utah Lake was formally selected as a reservoir site in 1889 by John Wesley Powell who was then the Director of the United States Geological Survey.

And that selection was made to the... pursuant to the Sundry Appropriations Act of 1888, which Mr. Jensen has discussed, which responded to a perception by Congress that there was a serious threat pending to the future irrigation of the lands in the arid region.

The record is this case unequivocally establishes that the Geological Survey selection of Utah Lake included the lake bed.

The Tenth Annual Report of the Geological Survey, which was formally transmitted to Congress, said that the reservation included the lands covered or overflowed by the lake as well as those bordering on it.

And the Eleventh Annual Report referred to the selection as including not only the bed, but the lowlands around it, and described that selection by sections that specifically included the bed of the lake.

Unknown Speaker: You say that this was responding to... to the concern that the irrigation needs of the area would not be met.

That concern was not that water from the lake was going to be used, was it?

That concern was simply that dry land which was available for reservoirs was being bought up by land speculators?

Mr. Kneedler: Well, there was... the general concern was that there would... that there would be impediments to development of reservoir sites for reclamation.

Those included--

Unknown Speaker: Because of the homestead laws that allowed people to acquire... to acquire land; right?

Mr. Kneedler: --Well, not... not necessarily, not necessarily.

There could--

For instance, in this particular case, although that... that was... that was certainly part of it.

But it this particular case, it... it soon became apparent immediately after this lake bed was selected that rather than raising the lake which would be typically true of the natural reservoir, the best thing to do would be to lower it because so much water was being lost to evaporation.

So the lowering of the lake would... would expose some of the lake bed in this case, and that would invite settlers onto the exposed lake bed which, of course, could implicate the very purposes of... of the specific purpose that you're mentioning, under the preventing of monopolization or impediments to the development by having private entries on the land.

Unknown Speaker: Now, wait.

I don't understand that.

Once you say you want to lower the lake bed, then you're saying you don't need the lake bed as a reservoir.

Mr. Kneedler: No, but--

Unknown Speaker: So why do you care if people settle it?

Mr. Kneedler: --Well, we describe in our... in our brief in this case that even though the lake was to be lowered for its average or normal level, there would be flood periods during which the level of the lake would rise, not only to its average level, but would rise above that.

And if that was a part of the normal operation of the reservoir for irrigation purposes, it would flood out some of the lands on which settlers had entered.

That would require, perhaps, the payment of compensation to the settlers who had moved onto the land and established farms there, just like the maintenance of any other reservoir system that periodically floods a landowner's property would create problems for the Government and require the payment of compensation.

And it was avoiding... avoiding the payment of compensation was one of the specific purposes, not just monopolization, but preventing--

Unknown Speaker: But the lowering of the level of the lake and raising were to be accomplished by dams?

Mr. Kneedler: --Yes.

There was a proposal to... partly--

Subsequently, its development... the plans that provided for diking off portions of Utah Lake, Provo Bay north of Utah and Goshen Bay in the southern portion of the lake, would be diked off so that that land would be essentially drained which, again, would expose both of those areas to possible settlement and monopolization and the other impediments that applied anywhere else in the Reclamation Project.

Unknown Speaker: Would the lake ever be completely empty?

Mr. Kneedler: No, the lake would never be--

Unknown Speaker: So you wouldn't have had to reserve the whole thing for that purpose.

Mr. Kneedler: --Well, but it--

Unknown Speaker: --You'd just, at least,--

Mr. Kneedler: --Well, at the time... at the time that the... at the time the Act was passed, Congress was acting against an urgent situation.

It didn't know the details at every particular reservoir site.

Mr. Jensen, I think, is not correct to say that this was an administrative withdrawal.

Congress, itself, mandated the withdrawal in the Act itself.

Congress said all suitable sites for reservoirs are hereby henceforth reserved.

And that was interpreted by the Attorney General to mean as of the date of passage.

That suggests that Congress perceived a serious problem that if it postponed the study of each individual reservoir to find out precisely how much land was needed, it could all be gone.

So Congress thought it was imperative to reserve the land now and not wait for the delay of possible administrative--

Unknown Speaker: --But no particular reservoir site was withdrawn by the Act of Congress.

It remained for... to be designated by the Secretary.

Mr. Kneedler: --Well, Congress could not practicably identify each potential reservoir site in the West, and, therefore, if relied on the Geological Survey to identify the sites for it.

Unknown Speaker: What about... what about settlers who occupied some later designated sites after the Statute was passed but before the designation?

Mr. Kneedler: Those entries were invalid, and that was the interpretation of the Act given by the Attorney General, given by the implementing instructions of the... of the General Land Office.

And the memorandum explaining those instructions is included in the debates on the 1890 Act.

Congress was aware of that interpretation of the 1890 Act.

The purpose was to put everyone on notice as of the date of the passage to the Act that if you going to enter onto an area that might be used for a reservoir that you're being... it's subject to being overridden by the selection of the area for a reservoir site.

I would also--

Unknown Speaker: Is it your position, Mr. Kneedler, that the Government doesn't need any particular reason to reserve land in the territory, that if it wants to reserve it, that's... that's its privilege?

Mr. Kneedler: --We have not gone to that extent.

What we do believe is that... that, at the most, all that would be necessary is... is this test to which Justice O'Connor just referred, that there has... that there would be... as long as the reservation is for a public purpose appropriate to the purposes for which the United States holds the territory, which is the test the Court described in Shively versus Bowlby and is repeated in the... in the, I think, everyone of its equal footing doctrine cases since then.

Unknown Speaker: Well, supposing that when Minnesota was admitted to the Union, the United States decided that it probably had some good use for the bed of the Mississippi River as it flowed through Minnesota, and so it reserved that bed.

Now, so long as there is a related government purpose, is that a good reservation?

Mr. Kneedler: Well, it would... it would... I think it... there has to be a specific federal purpose for it.

I think what Congress cannot do is say, We... just a bare desire to defeat the passage of the land to the State is not sufficient.

But the... but the origins of the equal footing doctrine suggest this distinction.

What... what the Court was saying in Pollard's Lessee, which is the case in which the Court first announced this, is that what the United States has held to hold in trust for the States is the municipal sovereignty over the lands, not the federal sovereignty.

So when a new State is created, what passes to the State is the municipal sovereignty, the ability to deal with that land--

Unknown Speaker: Well--

Mr. Kneedler: --as a State.

Unknown Speaker: --Now Pollard's Lessee says a lot more than that.

Let me read you a section from it that says:

"Then to Alabama belong the navigable waters and soils under them in controversy in this case, subject to rights surrendered by the Constitution to the United States; and no compact that might be made between her and the United States could diminish or enlarge these rights. "

That's not just talking about sovereignty.

That's talking about land--

Mr. Kneedler: Yes.

No, I understand that, but... but title... the title to the land is an aspect of the... of the State sovereignty because of the public trust doctrine that Mr. Jensen referred to.

The... the use devoting navigable waters to public purposes is an essential aspect of the public trust for the lands.

And that is deemed to be so central that the lands are not ordinarily held to have been conveyed to private parties.

And the United States is held not to have to be able to act like a State in a State, that that's up to the State to decide how those lands shall be used to the extent that that's within the power of the State to do so.

But there is in Pollard's Lessee, itself, the Court made clear that all of these States' right acquired under the equal footing doctrine are subordinate in certain or... in appropriate circumstances to where Congress acts pursuant to its enumerated powers under the... under the Constitution.

And one of those enumerated powers is the power to acquire property for a federal purpose.

That can be done in the State, not just in a territory.

I think this is an important--

Unknown Speaker: --But it could be... it's done by condemnation.

Mr. Kneedler: --It's done... it's done by condemnation.

All that is necessary in those circumstances is for there to be a public use to which the property will be devoted.

And this Court in Hawaii Housing Authority said the public use standard is essentially co-terminous with the Government's police powers.

And as long as the acquisition of the property is necessary to furnish further an appropriate governmental purpose, that that satisfies the public use requirement.

Unknown Speaker: So the United States could then, if it felt it had a use for the land under the Mississippi River in Minnesota, reserve that at the time of statehood?

Mr. Kneedler: Yes.

For a federal purpose, not simply... not simply to keep bare title and defeat the State's title.

It has to be for a specific federal governmental purpose pursuant to Congress' enumerated powers.

Unknown Speaker: But if it wants to grow hydroponic vegetables in the Mississippi River, it can do that?

Mr. Kneedler: Well, yes, assuming that what... assuming that that or anything else would be within the scope of Congress's... Congress's enumerated powers.

And I... I'd like to point out that in... in Pollard's Lessee, itself, at two places, on page 221 and 224, the Court made clear that it was referring to lands that were not reserved or appropriated to another purpose.

The lands that were being discussed in that case were unappropriated lands, the public domain, the sort of lands that the... that the Court held Congress was holding... the United States was holding in trust to turn over to the State as part of that State's receipt of sovereignty.

But it was not... it was not discussing lands that had been previously reserved or appropriated for other purposes.

Unknown Speaker: Mr. Kneedler, how do you distinguish an Indian reservation, reservation of lands to be used by Indians for federal purposes?

Mr. Kneedler: Well, that is something of a hybrid.

It can be viewed as a conveyance of the... of the beneficial titles.

But it's also a reservation in the normal sense--

Unknown Speaker: You reserve for the Indian uses just as you reserved in this case for reservoir uses--

Mr. Kneedler: --That's right.

Unknown Speaker: --and in one case, you would concede that that reservation wouldn't defeat the State's title since Montana holds that, I guess.

Mr. Kneedler: No, no.

Montana... what Montana... all Montana holds is that there was... that the document setting aside the land did not specifically refer to the... to the riverbed.

Unknown Speaker: That there was no conveyance to the Indians.

But it's certainly clear there was an Indian reservation.

Mr. Kneedler: But there was never a reservation--

Unknown Speaker: And nevertheless, the title was in the State.

Why wasn't the title in the Federal Government--

Mr. Kneedler: --The way the Court described it in Montana the same way that it described it in Holt State Bank, that there was a reservation in a general sort of way--

Unknown Speaker: --Right.

Mr. Kneedler: --to allow the Indians to continue to occupy the land that they had always occupied.

There was no specific mention, unlike here, of the bed of the navigable water.

And what the... what the Court held in Montana is what... what the Court relied upon was the absence of a specific designation of the riverbed as withholding the... or as reserving that bed to the United States in trust for the tribe.

It wasn't just that there wasn't a conveyance.

The vehicle of conveyance was the reservation.

So there was not a specific reservation of the lake bed.

Unknown Speaker: The key to your case is a specific identification of the bed of the lake as having been reserved?

Mr. Kneedler: Yes.

And that is exactly what the Court said, I think, in Montana: That it is necessary for it to appear in clear and special words, the intent has to be clear.

But where the intent is clear, and here it is, then... then this is just like the Choctaw case.

Unknown Speaker: Well, it's clear only after John Wesley Powell's designation; right?

You know, you just spread a map of the western United States in front of me and the 1888 Statute, I wouldn't have picked out Utah Lake, would you?

Mr. Kneedler: Well, as... as a suitable... as a suitable reservoir site, I may... I may well have.

It was well known at the time that natural reservoirs were... were... would be one of the important sources of irrigation under the Reclamation Project.

Unknown Speaker: Well, let's say I find it less than clear.

Would... does it become clear with John Wesley Powell's designation the next year?

Mr. Kneedler: That is--

Unknown Speaker: Unless you're absolutely... unless there's been a court test, and you know that he hasn't gone beyond the... what are appropriate reservoir sites?

Mr. Kneedler: --Well, the... this... this is a standard problem of delegation is, is John Wesley Powell's selection within the scope of the statutory--

Unknown Speaker: Well, that's right.

And I'm saying when... when the specification that you acknowledge must be made is made by delegated authority, can it ever clear enough to overcome the equal footing doctrine?

Well, I don't think the Constitution requires that Congress specify in an act, itself, rather that addressing a general category in delegating it to the... to executive officials as it does any other responsibility to make appropriate reservations.

This is... this is typically necessary with respect to the administration of public lands.

Congress cannot act like the landlord with respect to decisions about all the land that is in federal ownership.

It has to turn this over to the expert agencies.

And in this case, it was... it was turning it over to the person it knew to be the premier expert with respect to irrigation of arid land.

Well, I guess the question is whether something more should be required if it's to defeat the State's acquisition of this title which normally is expected to transfer to the State at statehood.

Mr. Kneedler: --Do you mean more in the nature of specificity?

Unknown Speaker: Yes.

Mr. Kneedler: Well, here, I think--

Unknown Speaker: The Congress, itself, has to take a look at it and say,

"Yes, we really do mean to keep title in ourselves to this property. "

Mr. Kneedler: --Well--

Unknown Speaker: It, otherwise, would go to the State.

Mr. Kneedler: --Well, assuming that that is necessary, I think that is met here by virtue of the subsequent actions.

First... first, I'd like to point out though that prior... prior to the passage of the 1888 Act, John Wesley Powell had prepared his famous report on the... on the lands of the arid region in which he specifically proposed Utah Lake as a reservoir site and suggested, for the first time, that reservoir sites be selected and set aside to prevent inhibitions to development.

So when Congress passed the 1888 Act which was drafted by John Wesley Powell, it had every reason to expect that he was going to select Utah Lake, and, in fact, he did it right away.

So this is about as close a nexus with respect to the selection of--

Unknown Speaker: How many other sites were selected while that act was in effect, and in how many States?

Mr. Kneedler: --The Interior Department does not have complete figures on this.

The... the... what happened is the selections were filed in the Land Offices in the various States, and there is... there is, as far as I've been able to ascertain, no comprehensive list of how many were selected.

As of now, I am informed that they have records of approximately 40 selections.

But we don't know whether any of them involve lands under navigable waters.

Unknown Speaker: And in how many States?

Mr. Kneedler: I think it was five.

Several of those were clearly in States admitted to the Union before 1888: California... there were a number in California; there were a number in Colorado.

So the category of cases affected by the precise issue in this case under this Act is quite small.

And we don't know of... now of another case.

But I would like to continue with the statutory--

Unknown Speaker: What about those other designations that we don't know even about that are floating out there in Land Offices somewhere?

Were they designated with sufficient specificity, too, by the 1888 Act?

Mr. Kneedler: --They were reserved if... whatever was designated--

Unknown Speaker: Suppose... suppose we have another case that comes up involving one of those other sites that you don't even know about yet that's out there in some Land Office; has that been designated specifically enough by Congress to... to overcome the usual application of the... the equal footing doctrine?

Mr. Kneedler: --Well, the primary source for what was designated, and there could have been others, but if we confine it to the category that... that the Geological Survey selected and formally reported to Congress, that is a matter of public record, not just in the Land Office.

The Geological Survey reported to Congress what land had been selected by section by section in the case of Utah Lake.

The Congress then in 1890 held extensive hearings, oversight hearings, on the selection of irrigation sites.

And as we point out in our brief, there were sessions in Utah at which the use of Utah Lake as a reservoir site was specifically discussed.

And we point out one of them in footnote 16 of our brief at which the Chairman of the Senate Committee responsible for those hearings specifically referred to the reservation of Utah Lake and specifically did so with addressing the problems of the 1888 Act.

It was pointed out that... it was pointed during these hearings before Congress, before the 1890 Act was passed, that the level of the lake was receding, that people were moving onto the land; and that this had created some problems.

And the Chairman says:

"Within the last year, there has been a reservation of any land needed for that purpose. "

"And the Government will survey such land and set it apart; otherwise, there will not be a disposition to crowd upon and settle on the land. "

He was responding specifically to that problem in saying,

"We've taken care of that by reserving that. "

But also... we also cite in our brief a passage during the floor debates on the 1890 Act when Senator... this is at page 9146 of 21 Congressional Record... Senator Sanders said:

"I hold it my hand the Tenth Annual Report of the United States Geological Survey to the Secretary of the Interior for 1888 and 1889, which contains, I believe, all of the information of a public character with reference to reservoir and canal sites heretofore selected or surveyed. "

That Tenth Annual Report includes the bed of Utah Lake.

So this is an... and then Congress passed the 1890 Act and said:

"Any reservoir sites heretofore selected are retained as property of the United States until otherwise provided by law. "

Unknown Speaker: Well then, if there some sites that are unknown, it was selections after that Report was filed?

Mr. Kneedler: There might have been some.

As far as we know, the Geological Survey reported to Congress all of the selections during any particular year.

Unknown Speaker: Up until that date?

Mr. Kneedler: Up until 1890.

So at least, with respect to reservoir sites prior to 1890, in response--

Unknown Speaker: When was the Act repealed?

Mr. Kneedler: --The Act... the authorization for selection of arid lands was repealed in 1890.

There was still authority to select reservoir sites, as I read the 1890 Act because it does refer to reservoir sites "hereafter selected".

But with respect to the ones previously selected, it's clear that Congress had the information before it and ratified those.

So although Congress didn't say Utah Lake in the Statute, it did say "Reservoir sites heretofore selected".

It knew specifically that Utah Lake was such a site.

And it held several days of hearings in Salt Lake City with witnesses who drew irrigation water from Utah Lake, and it knew quite well what the situation was there.

And Congress then revisited the 1888 Act in 1891 and 1897 as we explain in our brief, again tailoring the operation of that Act to make sure that the reservoir sites selected did not overreach.

But it never rescinded by law, as it was required, these reservation sites.

Unknown Speaker: Mr. Kneedler, may we ask you.

Assume that we agree with you on the specificity that they clearly intended to reserve it for this particular purpose, what... how would the purpose, the federal purpose be compromised or deviated by adopting the fundamental argument your opponent makes that it just simply passes to the State, and if the Government, the Federal Government needs it back, they've got to condemn it?

How would that have hurt the federal purpose underlying this whole program?

Mr. Kneedler: Well, that was one of the specific purposes underlying the 1888 Act, was to put the Federal Government in a position where it was going to have to condemn land in order to carry out the Reclamation Project.

What it was afraid of was that settlers would move on there, and in order... if you had to flood the land, you'd have to buy out the settler, or if you had to put in a canal or a dam.

Unknown Speaker: Well, all that goes to that's why you needed the reservation and needed to be able... needed to be able to keep settlers off.

But I don't understand how that really responds to the constitutional argument your opponent makes that that could still all be accomplished by having the title to the bed of lake vested in the State at the time that it became a State.

Mr. Kneedler: Well, in this case, it's important to distinguish the powers of the United States after statehood and prior to statehood.

Unknown Speaker: I understand.

Mr. Kneedler: But there's no doubt that after statehood, it could condemn the land if it had passed to the State.

Here we're talking about whether the land passed to the State at all, and--

Unknown Speaker: Correct.

Mr. Kneedler: --at the time that this--

Unknown Speaker: And what I'm asking is, supposing it did pass to the State, how would that defeat the program that motivated the reservation in the first place?

Mr. Kneedler: --Well, Congress could acquire the land.

But again, one of the purposes of the reservation was to avoid having to pay for the land.

Unknown Speaker: Well, but why is it different from an Indian reservation?

I'm asking in terms of the equal footing.

Why really do you need a different analysis than in the Indian reservation case just because they're more specific here?

Why can't the Federal Government, even though the title to the Montana River, or whatever it is, is in the State, it still, the Federal Government can still control all the... what happens in the Indian reservation, why couldn't... can't they still control what happens in Utah Lake even if the State owns the bed of the lake?

That's what I don't quite follow.

Mr. Kneedler: They might be able... they might be able to build a project.

The Congress made a judgment that it wanted to retain in federal ownership and control these projects.

It didn't know--

Unknown Speaker: Well, they wanted to prevent other people... well, I'm sorry.

Mr. Kneedler: --It didn't know quite how it was going to develop these lands.

It didn't know if it was going to develop... if Congress was going to provide for the United States to develop them, which is, in fact, what happened under the Reclamation Act of 1902, or whether it would open them to private... private development.

And in the 1897 Act, Congress overturned... that we discuss in our brief... Congress overturned an administrative interpretation and opened up all of these reservoir sites to private individuals and corporations.

And, at the same time, said a State can come in and occupy one of those sites, too.

Unknown Speaker: Maybe... maybe I'm very dense here, but I still don't understand why if they want to keep private development out of the lake, why can't they do that, notwithstanding the fact that the title to the bed of the lake might be in the State?

I don't understand why there's--

Mr. Kneedler: Private development... there could be two problems.

One of them, if the Federal Government needed to acquire the land from the State, it would have to pay the State.

Unknown Speaker: --But they don't... all they want to do is do is prevent private owners from developing the land, and their power over the navigable lake is sufficient to enable them to do that even though the State owns the bed of the lake.

Mr. Kneedler: Well, it may not have been so clear.

First of all, the State could have granted--

Unknown Speaker: Well, it's clear now, isn't it?

Mr. Kneedler: --I think it is... I think it is clear now under the Marsh case that was cited in the... that we cite in our brief where the Tenth Circuit sustained the power of the Corps of Engineers to regulate dredge and fill operations.

But there could be constitutional problems there, too.

If the State conveyed away the bed of the lake to a private person, which it could do if it got title under the equal footing doctrine, you would then have a private person who owns land in the bed of the lake, if the lake bed was exposed, we would--

Unknown Speaker: Just like the conveying away the bed of a river on an Indian reservation.

I would think the... the party acquiring title would realize it's an unusual piece of property as to which there would be some federal interest.

Mr. Kneedler: --It may be.

But in this particular case, it may not be so unusual if the lake bed receded and the State-owned land was exposed.

The State could turn it over to private parties.

It may not be subject to entry under the federal laws, but the State could turn it over to private parties who could then enter upon it and create problems.

I should point out that disputes over the ownership of bordering lands were... was also a serious problem at Utah Lake.

John Wesley Powell testified at these hearings in 1890, and we cited in a footnote in our brief in the Eleventh Annual Report.

He said that there had been a dispute between those who wanted to raise the lake and lower the lake because of the people who had moved onto the boundary area.

And the Mormon Church moved in and settled the dispute, worked out the dispute between the two groups of landowners.

So here we have a... already previous experience with respect to the problems that can be created by private ownership of land in an area where the water recedes and then is raised and is lowered.

And that's precisely the sort of inhibitions to development that Congress was concerned about in the 1888 Act.

Unknown Speaker: Well, Mr. Kneedler, in most instances, wouldn't the Federal Government in any event retain its navigation servitude?

Mr. Kneedler: It would retain its navigation servitude, but I... but that... it's not clear how far that would go with respect to the operation of a reclamation project.

And it's also... this is also an entirely intrastate navigable body of water.

It's not clear that Congress's navigational servitude would give it the authority in this... in this situation.

But I think the point to recognize is that at the time Congress decided to first freeze property in federal ownership and retain it there for development and irrigation of the arid west, it had complete sovereignty--

Unknown Speaker: Your suggestion is that for the Government's navigational servitude to apply, the navigable water has to move from one State to another?

Mr. Kneedler: --Well, it depends.

It... It... I think I'm... I... I take that back.

I think I'm thinking of Constructions of the Rivers and Harbors Act rather than the... rather than the constitutional limitation.

Under the commerce power, Congress could control the water, but it would not necessarily give it the authority to control the land.

And that is... that was what Congress was focusing on when it reserved the reservoir sites in this situation.

Going back to the point of Congress's power to do this, because I think the statutory authorization is clear, we submit it would be anomalous for Congress to be able to provide for the disposition of land underlying navigable waters to a private party as the States concedes Congress can do and as the Court held in the Choctaw case and has said in Shively versus Bowlby and other cases.

In that situation... and not to be able to retain the land in public ownership because when land is granted to a public party, it is separated from sovereignty in the words of this Court.

And both the State and the Federal Government lose whatever power they have to control the use of that land to the extent that power derives from ownership of the bed.

By contrast where the land is retained in federal ownership, the Federal Government can act both with reference to the special federal purpose that gave rise to the reservation in the first place and protect the interest in the use of the navigable waters in the same way as a public trust.

So the reasons for presuming against a conveyance to a private party of land underlying navigable waters apply with far less force in the situation where Congress has reserved the lands to a public use.

Congress can condemn lands in a state.

But at the time it acquired this land, there wasn't a state.

It owned the property.

The United States owned the property.

It could acquire it.

It was essentially acquiring it from itself.

It was disposing of the land to the extent it owned it as a public domain and acquiring it.

It doesn't have to condemn land it already owns.

It doesn't have to pay for lands it already owns.

And so it acquired it at that time as federal property.

And because it was federal property under the supremacy clause and as reflected in Section 6 of the Utah Enabling Act that Justice O'Connor referred to, that land was reserved in federal ownership and was not among the corpus of unappropriated lands on which the equal footing doctrine operates.

Equal footing--

Unknown Speaker: Mr. Kneedler, I suppose... I suppose that normally when there's a reservation from the public domain, it really just is withdrawing it from settlement or development or withdraws it from the operation of the Homestead Act--

Mr. Kneedler: --Well, there can be... there can be withdrawals; there can be reservations.

Sometimes a withdrawal as in Midwest Oil may just be preventing someone from settling upon it.

But you can also have a reservation devoted toward a particular federal purpose.

Unknown Speaker: --Well, how do we know... how do we know that the reservation that was... that Congress authorized here was meant to be a reservation as against the equal footing doctrine... as against State claims, to withdraw it from the operation of the equal footing doctrine--

Mr. Kneedler: Because--

Unknown Speaker: --Rather than just what the normal meaning of reservation would be?

Mr. Kneedler: --As I was explaining to Justice Stevens, I think the purposes of the Act require that it be applied to the... it's a lot like Block versus North Dakota in this sense.

The purposes of the comprehensive Act require that it be applied to potential claims by the State and people claiming through the State.

Unknown Speaker: So State ownership of the lake bottom might be inconsistent with this development--

Mr. Kneedler: Yes.

Unknown Speaker: --as a reclamation project?

Mr. Kneedler: That's correct.

And the one guide we do know in the Utah Enabling Act, Congress made clear that lands that were included within any reservation of whatever nature, which would include these reservations, were not subject to the grants of school sections and indemnity selections under the Utah Enabling Act.

And the equal footing transfer of unappropriated lands to a state is a grant; it's a constitutional grant.

But it... but so we think it's consistent with the relationship of the States upon entry into the Union that what they succeed to are unappropriated lands under the... under the navigable waters, but they don't succeed to lands that have been taken into federal ownership any more than they would the United States Capital Building that had been taken into federal ownership.

Thank you.

Rebuttal of Dallin W. Jensen

Chief Justice Rehnquist: Thank you, Mr. Kneedler.

Mr. Jensen, do you have anything more?

Mr. Jensen: A few brief remarks, Your Honor.

With respect to the federal concern about potential settlers crowding down around the edge of Utah Lake, we do not think that was a problem.

The lake bed was being held in trust.

And, in fact, it could not have been... was not opened to settlement and entry under the public land laws.

And ten years prior to the 1888 Act, the United States recognized the navigability of the lake.

It surveyed it, segregated it from the public domain, so that all of the sales of property were down to the surveyed meander line.

And I think that simply is not a justifiable argument that the settlers would encroach upon the lake bed.

Unknown Speaker: Are you saying the... it was already being reserved?

Mr. Jensen: Well, yes.

It had already been--

Unknown Speaker: And this reservation couldn't possibly have applied to Utah Lake?

Mr. Jensen: --That's right.

Unknown Speaker: And so it's no reservation at all?

Mr. Jensen: Well, that's right as it purports to withdraw the bed, or reserve the bed to the Federal Government.

It had already been reserved for Utah.

Unknown Speaker: I don't understand that.

Run that by again, will you?

Mr. Jensen: Okay.

First of all, it's reserved by the public trust.

In other words, they hold it for the State as part of the public trust obligation.

Now, we take the position they wouldn't have had to survey it in order to satisfy and make sure we got it.

But what we say is that one of the things the Federal Government does, and did at that time throughout the West, is when they... when there was these navigable bodies of water, in order to preserve them, they were surveyed.

That survey is a line that approximates the ordinary high-water mark which is the boundary of the bed and the upland owner.

And then when the Federal Government sells the unoccupied public domain, those sales come down to that surveyed meander line, so that the person that buys, he gets a metes and bounds description, but he doesn't get anything below that.

And so what we say is that by surveying it ten years prior to the 1888 Act, they had already recognized its navigability, its... that Utah was entitled to it, and they defined the boundaries.

Unknown Speaker: But then the United States says that after that, it was... it was taken out of the trust essentially by the... by the United States itself.

Mr. Jensen: That's right.

And... but--

Unknown Speaker: Mr. Jensen, do you take the position that the State could convey good title to land within the boundary?

Mr. Jensen: --To a limited extent.

And that would be that our obligation is to maintain the bed in such a way that the public trust is not impaired.

We believe that we could--

Unknown Speaker: Could you sell it to somebody who wanted to dig a mine on it specifically?

Mr. Jensen: --I question that.

We think that we could--

Unknown Speaker: Well, in some States... some States have given to the landowners on each side of the... of the navigable river title to the riverbed that they got under the equal footing doctrine.

Mr. Jensen: --And some of them are being sued over it.

We think we can issue permits, say for a dock or a wharf, that sort of thing--

Unknown Speaker: Or oil lease?

Mr. Jensen: --and if it doesn't impair the public trust, but we could not just turn around and sell the bed of Utah Lake willy-nilly just to, you know, refurbish the State coffers.

We do not believe that we can do that.

Unknown Speaker: Because of the federal reservation?

Mr. Jensen: No, because of the... that the State holds it in trust, not because of--

Unknown Speaker: Oh, I see, you're... because of your own trust obligation?

Mr. Jensen: --Our own trust, and maybe we've made that a little confusing.

But the State holds it in trust, once we get it.

It is not like the rest of our land; it is a special category.

And it is impressed with the public trust.

Just a word about Montana as it relates to the specificity that has been talked about here and the 1888 Act.

We submit that if the United States could not defeat Montana's title under those facts, that the 1888 Act should not be allowed to defeat Utah's here.

My time is up.

Chief Justice Rehnquist: Thank you, Mr. Jensen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

United States v. Maine - Oral Argument

Fri, 31 Aug 2012 18:36:24 +0000

Case:

United States v. Maine

Media File:

35orig_19851212-argument.mp3

Related Transcript:

35orig_19851212-argument

Transcript:

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

Chief Justice Warren E. Burger: We will hear arguments first this morning in the United States against the State of Maine.

Mr. Herrmann.

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

This case is an action to quiet title brought by the United States of America against the Commonwealth of Massachusetts.

The area in controversy is a body of coastal water off the coast of Massachusetts known as Nantucket Sound.

The charts appended to both the Massachusetts brief in support of its exception and the United States reply brief, both those charts indicate the configuration and location of Nantucket Sound.

They further indicate the precise nature of the controversy on the ground.

Massachusetts claims that the entirety of Nantucket Sound is state, and therefore United States inland waters and that Massachusetts is the owner of the seabed thereof.

The United States, as the chart appended to its brief shows, it claims a small, what one can call a small federal enclave in the center of the Sound with a narrow passageway leading thereto from the open ocean.

This case at its present state of the proceeding involves only Nantucket Sound.

Other areas in controversy have so far been disposed of, and the present stage of the proceedings are before the Court on the report of its Special Master and on the sole exception taken by Massachusetts.

This exception by Massachusetts is somewhat unusual for two reasons.

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

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

Unidentified Justice: What is a state ocean sanctuary?

What is that, a state ocean sanctuary?

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

There can be no change in the water.

There can be no degradation of the seabed, no erection of structures, no waste disposal.

In other words, the statutory scheme is to preserve the status quo, the pristine beauty of this area, absolutely for all time.

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

That is the first--

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

Henry Herrmann: --Yes, Justice O'Connor.

Unidentified Justice: And I don't know that this Court has ever recognized ancient title as a theory of recovery as such.

It has had cases dealing with historic title, and I'm not sure that I understand what you think the elements are for establishment of ancient title, and whether you think there are any cases from this Court that would support the application of that theory as opposed to normal principles of historic title.

Henry Herrmann: Yes, Your Honor.

I think there are two parts to that question.

Let me take the second one first.

I think there is indeed solid precedent from the decisions of this Court... if I may refer the Court to Manchester versus Massachusetts, decided in 1981, there the Court had before it a controversy as to the status of Buzzards Bay, which if I can again... if I may refer the Court to the charts appended to either of the briefs, you will see that Buzzards Bay is one of the semi-contiguous bodies of water to Nantucket Sound.

First you have Nantucket Sound, and eastward of that you have Vineyard Sound and then eastward of that you have Buzzards Bay.

Well, as to the famous... and it is a famous case, it's been discussed by almost all the international publicists at length, as to the Buzzards Bay case in 1981... interestingly enough, this Court said very succinctly, without equivocation, "It is clear", said the Court,

"that Massachusetts is the owner, that it has Buzzards Bay by virtue of its province charter. "

Now, I ask the Court for a moment to ponder the implications of that.

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

To support that finding and that holding by the Court, the King of England had to have gained it in the first place, if Massachusetts got it from the Crown.

How could the King of England have gained it?

He could only under then prevailing international law have gained Buzzards Bay and the surrounding lands by initial discovery which was at that time, as was also held by this Court in Martin versus Waddell, the accepted way of gaining title over newly discovered land, to just discover it.

The title was then fortified by occupation, through the settlements in the colonial times.

Then, that is how title vested in the Crown.

The Crown then passed the title, as it had the right to do under British law, and that's unquestioned today as it was then.

The Crown gave title to these lands and these subsoils in Buzzards Bay as it has, we claim, in Nantucket Sound, to its colony, to the Province of Massachusetts.

That is the 1691 charter.

That's the one referred to 100 years ago by this Court, and that's precisely the charter that the Special Master in this case said was operative in granting us Nantucket Sound.

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

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

What the Master was talking about later in the discussion, and what the Government is focusing on is... was a so-called historic title ever acquired.

But as to the perfected ancient title which was now perfected in colonial times, no I would say in theory yes, but it is quite clear that international law, both by the courts and the publicists, this so-called active abandonment theory is definitely in disfavor.

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

Unidentified Justice: Well, there's no problem here, because if the state doesn't have it the United States does.

There's no lapse in title, and if abandonment is possible I must say it's hard for me to understand why the legislative acts of disclaimer by Massachusetts and the publication of its official charts don't reflect abandonment by the State of Massachusetts.

Henry Herrmann: Your Honor, I don't think... I submit that they do not reflect abandonment by Massachusetts for the following reasons.

If Your Honor's referring to the late 19th Century charts that were published by the harbor and land commissioners, those were published upon the mandate of the Massachusetts Legislature, leading back to an 1859 statute by the legislature.

Just like the British Territorial Waters Jurisdiction Act, both those statutes were passed as an almost emergency measure to cure the problem that apparently there was no criminal jurisdiction in the open water, on the seacoast.

The problem was quickly... very quickly, because of two cases that involved the inability to prosecute a criminal, so the Legislature almost on an emergency basis extended its jurisdiction seaward.

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

The purpose of that legislation was not to abandon territory already vested in the State.

Its purpose was purely one to extend on an emergency basis, curial jurisdiction for criminal purposes.

That's point one.

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

As we pointed out in our brief, the charts are ambiguous.

They do not show an intent to abandon Nantucket Sound with... not specificity as is required under international law.

Why?

Because if Nantucket Sound had been high seas, as the Government contends, there would have had to have been a closing line between Vineyard Sound, clearly, and Nantucket Sound.

That is Exhibit 4 of Massachusetts exhibits, Your Honor, as we have referred to it in your brief.

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

Finally, Your Honor, I would ask you to consider the following point.

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

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

But to return again, Your Honor, to the first part of your question, what is required under international law?

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

At the time in question, in the late 1890's, it would have been... the option was clearly, either inland waters and ergo, state seabed, or, not belonging to the United States at all.

So, this blending, as it were, which Your Honor has referred to is only a late postwar manifestation.

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

First, the question of time.

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

There were always exploitation activities and assertions of dominion.

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

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

One is the geographical situation on the ground.

It seems well settled that if the so-called abandoned territory is in direct geographic proximity, if it's integrated into the territory or very much adjacent to it, of the so-called abandoning state, that counts heavily against such a presumption.

And most important, if the so-called abandoning nation at all times during the time period involved retains the power to assert its control and jurisdiction over that area, if it wishes... I'm not talking about actual assertion but if it has the de facto power to reach out, as it were, at any point in time and assert its jurisdiction over that area, then it seems settled in international law that you can have no presumption of abandonment from mere inactivity.

You must then find an actual overt express act of renunciation which, I submit to you, is not present in this case.

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

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

Unidentified Justice: May I interrupt you, General Herrmann.

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

Henry Herrmann: No, Your Honor, I haven't.

I'm glad you reminded me.

The elements of ancient title really are in direct... somewhat direct contrast to historic title, so-called.

Both of them, and this terminology gets a little confusing if one uses it quickly, both U.N. study, grounds for finding historic waters.

So, the antecedent of "historic waters" may be either ancient or historic.

The terminology is not optimal but I think we are stuck with it.

Now, in case of historic title, that is really, as the Master explained at length, a matter of prescriptive title.

You attain such a historic title prescriptively, as against the community of nations, by fulfilling certain prerequisites, and very briefly stated they are as expressed again in the U.S. study, the juridical regime.

They are, one, you have to have a claim by the state, by the sovereign.

Secondly, there has to be continuity for that claim, and again I stress that's what the Master is talking about, continuity of a claim, not continuity of an already ripened title.

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

Others say the mere absence of protest is enough.

Those are the elements of historic title.

Ancient title is quite different.

Ancient title is not attained by prescription.

It is really a perfected original title.

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

However, prior to the coming into force of the freedom of the seas doctrine, which I think we have demonstrated is the case here and which the Master found in our favor, prior to that doctrine coming to force you could acquire... and this is why it's important not to get overly involved in the term 18th century.

In ancient title you acquire an original title, not by prescription but by fulfilling certain acts which were required under then prevailing international domestic law.

Those acts were discovery of new territory, of res nullius, of terra nova, discovery followed by effective occupation to fortify the title.

The Master his quite explicitly found in our favor on both those issues.

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

Unidentified Justice: Let me clarify one thing.

What do you mean by "occupation", that element of the claim, when you're talking about this area of water that we're talking about here?

Henry Herrmann: Under prevailing international law, and by that I wish to point out to the Court, we do have a problem of so-called intertemporal law in this international law related case.

Intertemporal law, and that's a well settled doctrine by now, means you must apply of necessity the international law rules prevailing at the point in time when you're looking at the evidence.

You do not apply modern international law retroactively.

If you are looking at a claim of acquired ancient title, say in the 17th century, you must look to it under standards then prevailing.

Under standards then prevailing, Your Honor, occupation could have been satisfied for a marine area of this sort by effective settlement of the surrounding land masses, that's point one.

That certainly occurred here.

Indeed, we have evidence on the record that the British explorer Gosenoll sailed into the Sound and immediately erected a fort at the entrance to Vineyard Sound.

The second element, and it's a very important one, is exclusive and extensive exploitation of the resources of such a body of water.

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

That was his finding.

That would be the second element.

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

There are several well-known examples.

One was cited by the Government, the so-called Caylon pearl fisheries.

There are also the fisheries in the Arabian Gulf, the pearl fisheries off Sicily.

There is the famous case of the Tunisian sponge fisheries.

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

And, that is how one could, and indeed in this case did acquire ancient title by occupation over seabed area.

Finally, I would add that what you also have to look to is the domestic law at that time.

We have pointed out, and we return now to the evidentiary issue.

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

If you could, the water therein was inland.

If you couldn't, it was open sea.

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

Henry Herrmann: It is under these circumstances, Your Honor, as the Master, I think, correctly found.

If we are claiming ancient title in a given century and we claim it originated in colonial times, then you must of course look, as I said, to international law and the domestic law at that time and see what would the then prevailing sovereign without dispute have looked to, to international law and his own domestic law, whether he can claim the waters or not.

The prevailing law of England at that time was that you could only claim it as inland waters if the eyesight test prevailed.

Of course in a later case you could theoretically, although we're not claiming that here now, to answer your question, you could claim historic title after freedom of the seas came into force, and say, we base it on the same theory, it is encloseable, but we are not doing that here.

That would be a claim of historic title ripening after the freedom of the seas came into force.

We did claim that before the Special Master.

We are no longer pressing that particular claim at this point in time.

We would turn, in connection therewith, to the crucial remaining issue before this Court, what is the proper standard of evidence.

The Master was satisfied that Massachusetts to his satisfaction had shown all the elements of ancient title.

The only reason he could not recommend a decree in our favor was that at one point only he felt himself constrained by what he thought the implications of prior decisions of this Court were as to, quote, "clear beyond doubt evidence".

We said that he felt, if it was a case of first impression, he felt that was not an appropriate standard for proceedings of this sort.

Here you have the situation, Your Honors, where an experienced federal trial judge found after a lengthy trial that he was satisfied that in colonial times you could indeed see across the eastern entrance of Nantucket Sound, which is all the case boils down to.

He felt that by what he considered the implications of two prior cases, the second California case and the second Louisiana case, he felt that he could not on that ground, because that one element was not, quote, "totally clear beyond doubt", although he was satisfied, he could not recommend a finding in our favor.

The United States has tried to divert a discussion of that, what we think is the only remaining issue, by getting into this lapse question.

Well, the Master never found lapse as to any perfected ancient title, nor... it's not easy to see why he should have because the matter wasn't raised before him nor was it briefed to him.

All that was discussed by the Master was whether an historic title had ripened, whether acquisition of an historic title had later ripened.

Nobody argued or briefed to the Master the question, did an already perfected Colonial, ancient title once acquired, lapse.

In other words, the issue is retention vis-a-vis acquisition and the United States, it seems to me, commingles this.

They say you don't have to reach the evidentiary issue, and I submit that that is what should be reached because that's the only remaining element in the case.

The United States... let me just finish up on the evidentiary issue by saying that we've come a long way since the briefing began.

If the Court will look at page 25 of the Government's reply brief, there they have expressly conceded that such a high... so-called higher standard of evidence need only be imposed where the Government has disclaimed.

They have now given up their previous argument that it is of necessity because of the requirements of international law and domestic law.

So, what the Government is really saying, and I ask the Court to ponder the implications, they can come into a case even with a disclaimer which the Court would otherwise hold to be non-dispositive because it is filed on the eve of or during litigation, and they're really saying in effect, they can come into court, push a button, and by pushing a button impose a higher standard of proof on the claiming state, even though it is a disclaimer made during litigation.

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

Chief Justice Warren E. Burger: Mr. Claiborne.

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

Louis F. Claiborne: Mr. Chief Justice, and may it please the Court:

If I may turn from legal theory to the geographical and historical facts appurtenant to Nantucket Sound for a moment, it may be helpful to the Court.

I invite the Court first to look at the chart which is appended to the Massachusetts exception, simply to have a visual picture of the area we're talking about in a more precise way.

It seems to us that when you look at that map and you look at Nantucket Island, what you see is an island in the sea, not a bay, not an extra mouth to an inlet, but an island around which there is a strait.

There's a strait from the eastern entrance to Nantucket Sound between Vineyard and Nantucket Sound, and there's another strait which is indeed well marked navigation channel going from the eastern entrance to Nantucket Sound through the Sound and out Vineyard Sound, a deep, marked navigation channel from one open sea to another open sea.

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

This configuration is wholly unlike all examples that are mentioned in the briefs and in the report in this case.

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

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

That seems to us a rather telling failure.

Now, turning from geography to history, we are told that the Sound was discovered in 1602 and yet from that day until 1971 there was not any specific claim to this Sound by anyone in the government in those three and a half and more centuries.

No agency of government, legislative, executive or judicial, whether of the Crown of England, the Colony of Massachusetts, the independent Commonwealth, the State of the Union or the United States in all that time mentions or claims the interior center of Nantucket Sound as inland water.

The only suggestion that there might be such a claim is with respect to a 1932 statute which prohibits trolling within the Sound.

We do not read that statute as claiming jurisdiction over the center of the Sound because it refers to a three-mile belt in on of its provisions.

It seems to us, quite logically to me, we're claiming jurisdiction over so much of the Sound as is within three miles of any shore.

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

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

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

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

Louis F. Claiborne: Justice O'Connor, I have to say yes and no.

Unidentified Justice: That's not very helpful.

Louis F. Claiborne: Well, I will attempt to explain.

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

And, if that is what is meant by ancient title, we have no quarrel.

To the extent that Massachusetts asserts that there is some doctrine which requires less occupation, less accession of sovereignty, and which is almost never found to have lapsed or been abandoned despite very clear, unequivocal statements of repudiation, we deny that such a doctrine exists and secondly that it has ever been recognized by this Court.

I may say that Manchester versus Massachusetts sees no such example.

The Court there found that with respect to Buzzards Bay where the opening is less than six miles, it met all the requirements of then international law and national law.

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

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

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

So, there is no difficulty in the fact that the disclaimer by Massachusetts might have, for a period, subject to the United States' ability to repair it, momentarily the boundaries of the United States.

But I must confess that we do not concede that such ancient title ever was perfected and it's all very well to say that this area was discovered in 1603 but beyond that, Massachusetts has shown nothing by way of a paper... in colonial times or since, nor has it shown any governmental acts which would amount to effective occupation of the area.

The only evidence in the case with respect to any activity here, there's no arrest, there's no warning of vessels, there's no marking of the area, absolutely nothing by any government.

All we have is a quite natural, usual, traditional exploitation of the resources of the Sound by the people who live on the coast.

That happens on every coast, and here it happened on the ocean side of the Nantucket Island just as it did on the inland side, that is, on the northern side.

It proves nothing, but the people who live there naturally took advantage of the whaling, the sailmaking, the fishing and the shellfish life accessible to them from where they lived.

That is no governmental assertion of--

Unidentified Justice: Mr. Claiborne, he cited a couple of cases that said, as I understood him, sedentary fishing can constitute occupation, or something to that effect.

Are there such cases?

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

But, that is a very ancient title, immemorial usage, and continuous one, very much to be contrasted with here.

No precise claim, even on paper, and no activity whatever by anybody except the local inhabitants who quite naturally took advantage of what is available to them.

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

Louis F. Claiborne: We did not, Your Honor.

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

Louis F. Claiborne: Well, again, Your Honor, I must say yes and no.

It is--

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

Louis F. Claiborne: --We don't read it that way, Your Honor.

We read Judge Hoffman to have said that Massachusetts has established an ancient title, not necessarily one still good, if the clear beyond doubt standard does not apply.

But then, we read his evaluation of the evidence which is the title of the chapter, Evaluation of the Massachusetts Claim, beginning at page 61.

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

64, just below the middle of the page...

"It is therefore the Special Master's opinion that the Commonwealth has failed to establish that either the United States or Massachusetts ever asserted jurisdiction over the sound until Massachusetts did so relatively recently. "

Turning to the next page, on page 65 of the report, the Master says,

"It is unlikely that post-Colonial Massachusetts ever claimed the interior of Nantucket Sound. "

"Further, nor has Massachusetts presented an other evidence that it had laid claim to the Sound during the first half of the 19th Century. "

And continuing,

"During the second half of the century Massachusetts abandoned the inter fauces terrae doctrine to delimit its seaward boundaries, substituting a strict distance test. "

"Under this test, Massachusetts claimed only those arms of the sea whose mouths were six nautical miles or less in width. "

"Nantucket Sound clearly does not meet this criterion. "

Unidentified Justice: Isn't this all about historic title?

Louis F. Claiborne: I think not, Your Honor.

First, the scheme of the report was such that this entire section is the conclusion of everything that goes before it.

This is Section D, beginning at page 61, Evaluation of the Massachusetts Claim.

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

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

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

Unidentified Justice: Where does it ever... where does this section mention ancient title?

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

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

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

Unidentified Justice: Well, how do you occupy Nantucket Sound?

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

None of that, nothing approaching that, is shown here.

And finally, the juridical regime says that ancient title must be fortified by long usage, an element which has not been mentioned but which is stated.

And so it comes to this, that ancient title is different from historic title only in that it is not originally a title founded on prescription adverse to the claims of the general community, but it must be established in some way that is notorious to the world community and it must be preserved by usage, and certainly cannot survive the express disclaimer which there is no getting around Massachusetts engaged in, first in 1849 when it declared that henceforward its boundaries would be those bodies of water as to which a closure no more than six miles was available.

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

Unidentified Justice: May I interrupt you just for a moment.

You are referring to the two different parts of the Master's report, which I must confess I am a little confused by.

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

Louis F. Claiborne: Or because it lacks.

And we didn't invent the word "lacks".

It is the Master who says, and this is... perhaps I should have answered Justice White in this way, the bottom of page [= 65], it seems to me, does refer to the colonial title.

It says, the last sentence, last full sentence on that page,

"Therefore, whatever rights it may have had over Nantucket Sound during the Colonial period. "

Now, that's got to be a reference to the so-called ancient title,

"lapsed until the Commonwealth's attempt to resuscitate-- "

Unidentified Justice: --That would make a whole lot of sense with the final sentence of the paragraph.

Louis F. Claiborne: --Yes, Your Honor.

The expression "historic title", after all, is very close to the "historic waters" which is the term this Court and the International Convention have both used.

And of course an ancient title is a historic title.

It's one based on history.

Unidentified Justice: Mr. Claiborne, if you look at page 51 of the Master's report, at the end of the paragraph, the one over paragraph at the top, the Master says,

"Massashusetts can establish an ancient title to Nantucket Sound only if the Supreme Court holds that the clear beyond doubt standard is inappropriate in this proceeding. "

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

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

Louis F. Claiborne: Justice O'Connor, I must confess that the report seems to us, as to others, less than absolutely clear.

I think the only way you can reconcile it is to read the passage which Your Honor referred to on page 51 as meaning that the perfection of the ancient title has not been shown if the clear beyond doubt standard is applicable without prejudice to the second question, whether that title, if effected, survived.

And, that second question is dealt with under the general heading, in subpart D, I think, repeating, is not a discrete discussion of historic title.

It's a genuine discussion of the entire Massachusetts claim.

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

Unidentified Justice: Mr. Claiborne, under D-1, Vineyard Sound, the first sentence says, he concludes that there is historic title to that.

Then he goes through and discusses why they have historic title, and then Nantucket Sound, it talks about historic title.

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

Unidentified Justice: Well, that assumes that--

Louis F. Claiborne: That finding may in the Master's mind not be relevant to ancient title.

We say, whatever he might have thought about that, his finding is a matter of fact.

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

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

Unidentified Justice: If you read page 51 as the end of the discussion of ancient title, it's a strange posture to leave the case in if the Master thought that ancient title had lapsed.

It wouldn't make any difference what standard of proof there was.

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

Unidentified Justice: You are going to argue the standard of proof?

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

And that much is due to the decision that the United States, to define its borders in a certain way.

It seems to us that, as it did to the Master here, that this Court has quite clearly fixed that standard when there is a disclaimer, and here there is a disclaimer, no question about the fact that the United States is and has disclaimed title to Nantucket Sound or to the center of it.

That disclaimer may or may not be belated, but it does at least require that the states proof be at a higher standard, and that is not an extraordinary proposition.

Indeed, what is extraordinary is that the United States isn't free to fix its boundaries like every other nation.

It's only the oddity of our federal system, nothing to do with international law, and one can't look to international law for this, that permits a state to claim adversely to the--

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

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

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

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

Unidentified Justice: What did the Master do with that claim?

What did--

Louis F. Claiborne: --He seems to us, on pages 64 and 65, to have agreed with us entirely that the--

Unidentified Justice: --Why did he leave us with this circular statement on page 51?

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

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

We also pointed out that the United States had repudiated or contested or denied any title to Nantucket Sound as the Master himself finds on pages 64 and 65 on which he says,

"Neither the United States nor the State of Massachusetts. "

--never mind the colony of Massachusetts...

"at any time appears to have claimed the center of Nantucket Sound. "

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

It's not stated as an issue.

Unidentified Justice: Mr. Claiborne, I'm curious about this clear beyond doubt standard.

Do you feel that's more stringent than the beyond a reasonable doubt standard employed in a criminal case?

Louis F. Claiborne: I wouldn't have thought so, Justice Blackmun.

Unidentified Justice: You would not?

Louis F. Claiborne: I would not.

Chief Justice Warren E. Burger: Anything further, Mr. Herrmann?

Henry Herrmann: Yes, Mr. Chief Justice.

Chief Justice Warren E. Burger: You have four minutes remaining.

Henry Herrmann: Thank you, Mr. Chief Justice.

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

It seems to me as a functional equivalent--

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

Unidentified Justice: You're just saying it must be... that's unfair, that's about your submission, that would just be unfair?

Henry Herrmann: --No, Justice White.

I don't think--

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

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

Unidentified Justice: What would you say if the disclaimer had been ten years before this case began?

What would you say about your standard of proof?

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

Unidentified Justice: Well, what do you mean by that?

Henry Herrmann: By that I mean--

Unidentified Justice: Do you mean, the beyond doubt standard applies?

Henry Herrmann: --No, because I don't think the Court meant, if you look at the Louisiana decision, I don't think the Court meant to use the beyond doubt standard in such a fashion.

I think as I respectfully read the Court's decision, it meant that it would use the "clear beyond doubt" standard to determine... it was really analogous to a summary judgment situation.

I think the operative discussion is, what dispositive effect, if any, do you give to the disclaimer as a matter of substantive law.

If the disclaimer had been in the bona fide exercise of the foreign affairs powers of the United States, well predating the reservation of jurisdiction by this Court, then it might perhaps be fairly argued by the United States that it has now--

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

Henry Herrmann: --I think, Justice--

Unidentified Justice: He relied on it.

He said that, you haven't proved it beyond a reasonable doubt.

Henry Herrmann: --Well, he said... I must submit that he was quite cautious in what he said.

He said that if it were a case of first impression, he would agree with us.

Secondly, he said, impliedly he felt constrained, but he certainly came as close as one can get to a... and saying, take this to the full Court, this seems to me a judgment call.

I think the Master was really as cautious as a Special Master can be, not foreclosing that issue, and I think that to give... again, and I must again point to the distinction between acquiring historic title and whether an ancient title prevails.

As to acquiring historic title, if the title had not ripened yet at the time the United States disclaims outside litigation, prior to litigation, then that might as an evidentiary matter fairly be said to prevent the ripening of a claim as an evidentiary matter under public international law, if the sovereign disclaims.

But as to ancient title, I think this Court has several times indicated it would look with considerable caution, considerable suspicion, at an attempt to retrench the territory of states already vested.

So, if the ancient title as the Master found was already perfected, the question still remains, even if there had been according to your hypothetical, Justice White, a bona fide non-litigation related, non-litigation contemporaneous disclaimer by the United States, it would nevertheless not operate against an ancient title.

My time is up.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

United States v. Florida - Oral Argument

Sun, 08 Aug 2010 17:07:07 +0000

Case:

United States v. Florida

Media File:

54orig_19770117-argument.mp3

Related Transcript:

54orig_19770117-argument.xml

Transcript:

Argument of Lee C. Clyburn

Chief Justice Warren E. Burger: We will hear argument next in 54 Original, the United States against Florida and Texas.

Mr. Clyburn, you may proceed whenever you are ready.

Mr. Lee C. Clyburn: Mr. Chief Justice and may it please the Court.

My name is Lee Clyburn and I am an Assistant Attorney General of the State of Texas.

However, for purposes of the argument today, I will be representing the views of both the States of Texas and Florida since there are no divergence or independent issues as to those two defendant States.

The issue before the Court today is whether the defendants in this original proceeding will be allowed to file a counterclaim normally against the United States of America.

The Special Master has filed a report recommending that the counterclaim not be filed because of the United States Sovereign Immunity.

The defendant States urged this Court to refuse to apply the Doctrine of Sovereign Immunity in the mechanical, uncritical manner advocated by the United States and to grant leave to file this counterclaim so that full justice maybe done herein.

This is strictly a lawsuit for declaratory relief.

It was originally filed by the United States against the States of Florida and Texas, seeking a declaration that neither defendant had any right to control fishing by foreign vessels or their crews in the seas more than three miles off their shores.

The States answered and opposed the United States’ request for declaratory relief.

The States each assert that they do possess the right to enforce their laws at all points within their boundaries, which boundaries in the case of each of these two States extend three leagues or non-geographical miles into the Gulf of Mexico.

It became clear as discovery progressed in this lawsuit that the United States’ true position was that the defendant States not only did not have any rights to enforce their laws outside of three miles, but indeed that the defendant States of Florida and Texas had no rights to enforce their fisheries laws as against foreign nationals even in the three mile zone between the shore and three miles out for the traditional territorial sea of the United States have been locating.

And are to clear out the whole question of the respective rights of the parties with regards to this important issue of offshore law enforcement rights.

The defendants have filed their joint motion for leave to file a counterclaim.

By that counterclaim, the States seek only a declaration by this Court that they each do have the authority to enforce their fisheries laws as against foreign vessels and their crews within three miles from their shores.

United States opposes the filing of the counterclaim relying primarily upon the Doctrine of the United States Sovereign Immunity from sue.

The Special Master in his report filed with this Court finds that the expeditious and orderly procedures in this lawsuit would dictate the allowance of the filing of the counterclaim, but the Special Master felt that the decisions of this Court required him to recommend that the counterclaim not be allowed to even be filed because of the Doctrine of Sovereign Immunity.

The defendant States fully concur with the Special Master’s findings that absent the issue of Sovereign Immunity, the counterclaim should be allowed.

We strongly accept, however, to the recommendation of the Special Master that the counterclaim should be barred by operation of the Doctrine of Sovereign Immunity.

No case known to the defendants requires acceptance of the United States’ position on this matter.

Unknown Speaker: Was there anything in that legislation passed last October that has anything to do with the Doctrine of Sovereign Immunity that you know that Congress passed?

Mr. Lee C. Clyburn: Your Honor, we feel not.

It is my understanding that the Solicitor General is going to explicitly bring that tort decision to the Court's -- that statute to the Court’s attention for whatever bearing it might have.

I, myself, do not feel that it has bearing on the issue today or further the counterclaim should be allowed.

We feel that only an absolutely uncritical adherence to the most technical view of the position of the Doctrine of Sovereign Immunity in our country would require or even allow the result urged by the United States.

On the other hand, the filing and adjudication of the counterclaim would allow the entire disagreement between the parties to be dealt with in this lawsuit and that full justice could be done herein to all parties to this lawsuit and not just to the United States.

Justice Harry A. Blackmun: Is there anything to the suggestion that if your counterclaim is allowed, other states will be implicated also?

Mr. Lee C. Clyburn: Mr. Justice Blackmun, it is true that the issue that we raise in our counterclaim would probably be of interest to the other coastal states as well as merely to our two States or defendants in this lawsuit.

It is, however, our position that they should certainly not stand in the way of the filing for it.

The issue, is of very great importance to these states in this lawsuit, and it seems to us almost incredible that United States would say that it should not, that the counterclaim should not be filed merely because other States’ legitimate interest would be called into question by the counterclaim.

They have called into question and now they refuse to allow the issue to be adjudicated.

Unknown Speaker: Well then, you are not relying just on your status as a counter claimant.

You are saying that the other states who might be implicated along the lines of Mr. Justice Blackmun’s question should also be allowed to intervene in the proceedings.

Mr. Lee C. Clyburn: I really do not know what our position would be if other states sought to intervene, Your Honor.

I do not, what I am saying that it is of interest to us, it is legitimately raised in this lawsuit and we should be able to adjudicate it by counterclaim.

If other states sought to intervene, the Court would have to deal with that question; United States would have to respond to that at that time.

The United States in its brief to this Court makes the following statement that clearly demonstrates what we feel is the arrogance and unyielding nature of its position, and I quote from Page 7 of their Brief.

“In sum, defendants’ arguments that adjudication of their counterclaim is imperative less justice be denied, misses the point.”

Now, I point out to the Court that for reasons best known to the government they fit for the word “Justice” in that page from their brief.

Be that as it may, it seems to defendants that in this Court inquiries and to the justice and fairness of a given result never miss the point.

To the contrary, that inquiry, that inquiry as to what is fair and what is just, should always be exactly the point and it is on that point that United States’ position completely fails.

Unknown Speaker: Isn’t that quote from the Government’s Brief largely based on our opinion last year on the Testan case, where we pretty much took the same position that there maybe a more enlightened view that Sovereign Immunity be abrogated but it is not up to this Court to do it.

Mr. Lee C. Clyburn: Your Honor, they do cite the Court’s opinion immediately after the quote that I read.

It is the States’ position, however, that the case is cited and all of the cases indeed reported and relied upon for the application of the Doctrine of Sovereign Immunity where cases are distinguishable from this one in the effect, the possible effect that the filing of either the suit or counterclaim might have on the United States.

In this lawsuit our position that the counterclaim would have no adverse effect or embarrassment to the United States whatsoever.

Justice John Paul Stevens: General Clyburn, may I ask you a question on the nature of the conflict between the United States and the two defendants within the three-mile limit?

Paragraph 2 of the motion for leave to file a counterclaim contains the allegation that the United States, through discovery, has denied the States’ authority to control fishing by foreign vessels and their crews in the area within three-mile sea 9.10 their coastline.

Mr. Lee C. Clyburn: Yes Sir.

Justice John Paul Stevens: Two questions, is there anything else in the record shedding any light on the nature of the conflict between the States and the Government within the three-mile limit.

Mr. Lee C. Clyburn: Yes, Your Honor.

In our motion for leave to file a counterclaim, we set out and we quote from answers to interrogatories and from deposition testimony for in the United states does deny that right, it is their response...

Justice John Paul Stevens: Yeah, I was wondering how -- it is in response to interrogatories in the like that they say that there has been no conflict in this -- or is there is anything the record indicate there is any conflict in the sense that the drill vessels are arguing with one another about who can make arrests or is there any actual physical conflict of any kind?

Mr. Lee C. Clyburn: Mr. Justice Stevens, the answer to your question is no, and the answer to your question is no both as to the belt within three miles and as to the area outside of three miles, at least, as far as the State of Texas is concerned.

I would point out that the State of Texas, has filed in its answer an allegation that no justiceable case or controversy as to it exist and it is for precisely the reason that there has not been any clashes between the 10.18 boats of the lights, between the State of Texas and the United States that we raise that point in defense to this lawsuit.

So, the States’ position, in a nutshell, is that there is no justiceable case or controversy as to Texas with regards to the United States’ original request for the declaratory relief.

Justice John Paul Stevens: If you are right about that, there will never be need for the counterclaim, will there?

Mr. Lee C. Clyburn: Absolutely, Your Honor.

If the United States’ case is dismissed, we will not be in the position or care to pursue our counterclaim.

Unknown Speaker: Could you, perhaps 10.51 you would ask the other side, but what do you understand to be the United States’ theory with respect to the area outside the three–mile zone.

Mr. Lee C. Clyburn: Well, Your Honor, it is not clear in my mind, to be honest with the Court, but it is my understanding there has to...

Unknown Speaker: You are claiming the right after the three marine leagues?

Mr. Lee C. Clyburn: Yes Sir.

Unknown Speaker: What do you think their position is?

Mr. Lee C. Clyburn: As I can understand their position is linked to the notion that the territory of sea of United States has traditionally been three miles and that action beyond that could have implications that they say would have more effect on them than our actions within three miles.

Unknown Speaker: So, it is a different -- if they deny your right within three miles, it is for a different reason than outside.

Mr. Lee C. Clyburn: Excuse me, Your Honor, I think I might have not been plain in my answer.

I think their distinction is to why they should…

Unknown Speaker: I am wondering if the grounds urged are different.

Mr. Lee C. Clyburn: Not really, Your Honor.

I was confused in my earlier response.

Apparently, they do not think there is any difference in our rights within three miles and outside.

At least, that is what they said repeatedly in the discovery that I have alleged that I pointed out in my brief.

Unknown Speaker: But do you think both within and without three miles their idea is that this has foreign relations implication?

Mr. Lee C. Clyburn: Yes sir, that is correct.

That is what I understand and what they are saying to us is that although we feel you do not have it anywhere just for reasons best known to us, we only won't let you litigate with this right now in the area outside of three, between three and nine, and that is what we do not think is fair.

An examination of the affects of the filing of our counterclaim...

Unknown Speaker: Well, do they draw a difference between navigation and fishing?

Mr. Lee C. Clyburn: Fishing is the only issue that they raised in their lawsuit or that we mentioned in our counterclaim.

I think that the traditional law of the sea makes distinctions between the rights of fishing and the rights of navigation.

Unknown Speaker: Do you as in terms of what your rights are?

Mr. Lee C. Clyburn: Yes, yes Your Honor.

For example, we would never seek to prevent innocent passage.

Unknown Speaker: To exclude a foreign ship.

Mr. Lee C. Clyburn: Absolutely not.

If they were engaged in innocent passage and no one is ever alleged, we have 13.04.

Justice John Paul Stevens: General Clyburn, let me just ask you again, I am little puzzled about the prejudice to the State of Texas.

If you win, you won’t be hurt by not being able to file a counterclaim.

Mr. Lee C. Clyburn: If we prevail on the merits of the lawsuit?

Justice John Paul Stevens: Yes.

Mr. Lee C. Clyburn: Probably not, probably not Mr. Justice Stevens.

Justice John Paul Stevens: Then it is up to the Government, and if you lose, don’t you have two bites of the apple in effect with regard to the area within three miles.

You have only lost in the area of 3-9 you still have all your arguments for within the three-mile belt.

I have a little difficulty seeing the prejudice.

Mr. Lee C. Clyburn: The prejudice Your Honor, it would come in and we feel in various ways; first and not of ultimate importance in this Court but a very rare one to the States would be that it would subject us to the very real possibility of repeat litigation a few years now when they decide to sue us only in a belt.

That would be unfair.

But more fundamentally, more fundamentally, were we to lose on the merits of their original complaint and be denied our right to file and litigate our counterclaim, we would be in the position of not knowing of whether we could legitimately enforce our rights within three miles and we would be in the position of doing so or 14.14 that very least having a lawsuit filed against by the United States when they chose to do so.

Unknown Speaker: And that would be the position of every single other coastal state.

Mr. Lee C. Clyburn: It would seem so and our rights...

Unknown Speaker: That is right, that 14.23 along with every other coastal state except for Texas and Florida or in the Gulf.

Justice John Paul Stevens: Isn’t that the same parole 14.29 that is existed for the last 100 years...

Unknown Speaker: ...for every coastal state?

Mr. Lee C. Clyburn: We do not think so Your Honor because to my knowledge the recent developments in this lawsuit when the first time the United States just come right out and told us we do not think you have any rights at all to enforce your laws against foreign nationals anywhere offshore.

That’s 14.48 me and I thank you 14.50 to everyone who learned of that.

I think in that regard it would be a different situation.

The filing of the other counterclaim do not possibly have any adverse effect upon the United States.

Now, one penny of monetary judgment is sought against 15.09 of the counterclaim.

We do not seek to force them to deal in any particular way with any federal property to deed it to us or to deed it to anybody else or to refrain from doing anything they want to with any other property.

Very significantly, we do not seek to have them ousted from jurisdiction to enforce fisheries regulations at any point, anywhere on the face of the earth.

It is a position of the states and always has been.

The states and the Federal Government possess concurrent jurisdiction within the entire belt to enforce their laws against any violators.

We are not seeking to hurt the United States.

I have already told you.

Our view of the harm and prejudice would come to us and the basic unfairness of when the United States waive the banner of Sovereign Immunity without even attempting to give us or this Court or anyone, any logical reason as opposed to a dogmatic assertion of it as means of avoiding litigation of the full subject matter that they have brought into issue by filing this lawsuit.

Justice John Paul Stevens: Is it possible to infer that you may have raised the issue by asking certain questions in written interrogatories and all?

Mr. Lee C. Clyburn: Well, Your Honor, we -- 16.26 interrogators 16.27 to get at the distinction they had raised in their lawsuit by suing us only outside of three or asked them to try to file the logical basis for their choice of suing us only outside of three rather than all the way into the shore and it is in response that they said you do not have any rights.

For the reasons that we have outlined we urge the Court not accept the United States’ dogmatic view of Sovereign Immunity and to allow the filing of this counterclaim so that the full issues can be litigated in this lawsuit.

Chief Justice Warren E. Burger: Very well.

Mr. Sheehan.

Argument of William F. Sheehan

Mr. William F. Sheehan: Mr. Chief Justice and may it please the Court.

I do have in mind discussing the recent legislation that my opponent referred to, with the Court’s permission, I will postpone that discussion until a more appropriate part of my argument.

The issue that is now before the Court is quite a narrow one.

The issue is simply should the Court grant the motion of the defendant States for leave to file their purposed counterclaim?

Unknown Speaker: Mr. Sheehan, I wonder if you could lift that microphone up a little bit.

Mr. William F. Sheehan: The States have taken the position that they do have those rights.

They assert that their authority in this connection to either at least in part from the 1953 Submerged Lands Act.

That Act, of course, granted to the States' rights on the natural resources within the territorial sea, granted to all of the coastal states those rights in the territorial sea and as to the States of Texas and Florida, it granted those rights out to a distance of nine miles in the Gulf of Mexico.

The defendant states are, therefore, the only states that can assert a claim of jurisdiction over foreign vessels beyond the territorial sea on the basis of proprietary interests granted by the Submerged Lands Act.

They are indeed the only states that have asserted in this fashion such a claim and they are accordingly the only states named by the United States as the defendants in this suit.

Counterclaim that the States could bring, involves rights in the three-mile territorial sea.

Those rights affect the concern of every coastal state.

We have objected to that counterclaim on grounds of immunity.

Our argument proceeds in four steps: First, that the United States may not be sued without its consent; second, that the rule applied with equal force when the plaintiff is a state; third, that the United States has not consented to this lawsuit by statute; and fourth, that it has not consented to this lawsuit by virtue of having initiated a complaint.

The first proposition needs, we think, very little elaboration as the Court stated last term in Testan and it has long been established of course that the United States as a sovereign is immune from suit, save, if it consents to be sued.

Likewise, the second proposition is established beyond doubting our view, the exemption of the United States from being sued without its consent extends to a suit by a state.

I think the last time this Court had occasion to state that rule squarely was in Hawaii against Gordon in 373 United States reports.

Our third proposition is that the United States by statute has not consented to this suit and indeed the states have never claimed otherwise.

In this connection, I will raise the legislation enacted last October by Congress and I am referring to the waiver of immunity that Congress worked as an amendment to the Administrative Procedure Act.

We have included a copy of the Amended Administrative Procedure Act as an appendix in our Reply Brief in Matthews against Mr. Sanders.

That waiver of immunity has no affect in this case, which is not a suit to review agency action brought under the Administrative Procedure Act.

Another piece of legislation that is not referred to in the brief is the act last year by Congress, the Fishery Conservation and Management Act of 1976.

By that Act, Congress extended its exclusive fisheries jurisdiction to a limit of 200 miles from the coastline.

That Act leaves this lawsuit where it finds it in Section 306 of the Act, it says explicitly that nothing contained in the Act shall have any impact either to enlarge or to diminish the jurisdiction of the states within their boundaries.

That, of course, is the issue posed by the United States complaint, what is the jurisdiction of the state within their boundaries in the three to nine mile area.

There is a provision for suit in the Act extending the exclusive fisheries jurisdiction of the United States after 200 miles.

That provision for suit does not contemplate suits by states in as much as it provides for exclusive jurisdiction of cases or controversies arising under the Act in the District Court.

Congress could not have contemplated that that states would sue under that provision and as much as the constitution gives this Court original, although not exclusive, jurisdiction over actions in which state maybe a party.

That provision for suit also is of no aid to the states from this case because it provides only for suits in the District Court not in the Supreme Court, and finally it is of no aid to the states because it does not take effect until March 1, 1977.

Thus, the United States has not, by any statute, consented to be sued in the matter that the states seek to do and so the issue becomes whether the United States by initiating a lawsuit consents to be sued.

It clearly has not.

Unknown Speaker: Do you have a case involving a counterclaim against the Federal Government.

Mr. William F. Sheehan: I am sorry Mr. Justice.

Unknown Speaker: Do you have a case involving a counterclaim against the Federal Government and Sovereign Immunity.

Mr. William F. Sheehan: Yes, indeed I have two: One is United States against Shaw 309 United States reports; and another is United States against United States Fidelity.

Unknown Speaker: 309 and what?

Mr. William F. Sheehan: 309 U.S. Reports, Page 495, and the second is United States against United States Fidelity Company, 309 United States Reports, 506.

There is indeed a third case, Nassau Smelting Works against United States, 266 United States Reports, Page 101.

I will read from that, I will read two sentences from that case.

“The objection to a suit against the United States is fundamental whether it would be in the form of an original action or a setoff or a counterclaim.

Jurisdiction in either case does not exist unless there is specific congressional authority for it.”

That is at Page 6 of the Government’s response to the defendants exception to the report of the Special Master, and the other two decisions that I just cited Mr. Justice, the Shaw case and the Fidelity Corporation case are also mentioned in our brief.

Unknown Speaker: So, you do not think 23.29?

Mr. William F. Sheehan: Well, I do think the 23.35 Mr. Justice.

I will add only one statement. There is one…

Unknown Speaker: Would it be possible without this for the Master to say that in deciding your case, he now decides against you but he goes a little step further.

He could not do that.

I mean could he given this relief without them asking for?

Mr. William F. Sheehan: No, the Special Master can decide the United States complaint without reaching any of the issues posed by the counterclaim in our view.

Unknown Speaker: I am saying he does grant 24.12 the counterclaim asked for without the state asking for it?

Mr. William F. Sheehan: Well, to the degree that there is an identity of issues as a state asserts between the subject matter of its counterclaim and the subject matter of the Government’s complaint then there is no necessity for the counterclaim.

That is what you are driving up, Mr. Justice?

Unknown Speaker: I am saying that they did not file the counterclaim and the case went to judge and the Special Master ruled against you and gave them the additional leave which they had not even asked for.

Would that be wrong?

Would that be a violation of the sovereignty?

Mr. William F. Sheehan: Well, I think that the United States would object in that.

No, the Special Master could not give them the relief that they are asking for in their counterclaim.

They are seeking a declaratory judgment in their counterclaim.

If we were to lose our complaints, the result would be that we would not be entitled to a declaratory judgment in our favor.

The courts could not or the Special Master could not in that case award a declaratory judgment that was not asked for by the state anymore than he could award any affirmative relief on behalf of the state.

Unknown Speaker: But if you lose on the merits of the claim that you asserted in your original complaint a fortiori the merits of the counterclaim would be decided against you, wouldn’t it?

You claimed that the state has no power to regulate fisheries between the three-mile limit and the three-league limit as I understand it is that…

Mr. William F. Sheehan: That’s correct.

Unknown Speaker: And...

Mr. William F. Sheehan: And if we lose…

Unknown Speaker: If the Master says and this Court ultimately says, sorry, the State does have a power to regulate fisheries between the three miles and three leagues within a fortiori would have power to regulate fisheries within the three mile.

Mr. William F. Sheehan: I think It would, at the very least, be very strong precedent against the subject when sued by the United States.

Yes, that is certainly true.

If there are no questions that is all I have.

Chief Justice Warren E. Burger: Very well.

Mr. McKenzie.

Argument of Sydney H. Mckenzie Iii

Mr. Sydney H. Mckenzie Iii: Mr. Chief Justice and may it please the Court.

If, in fact, the Sovereign Immunity is, as the Federal Government asserts, absolute but for statutory waiver, then indeed we probably do like the right to assert this counterclaim.

If, however, as we submit and as we submitted in our memoranda, The Thekla case, decided by this Court, does open the door, even a crack to counterclaims.

In order to completely determine an issue where the Federal Government enters into litigation and where there is no danger to the public interest then this is the most appropriate case to apply that doctrine in The Thekla.

In that case, this Court asserted the reasons that have prevailed against creating a government liability in tort do not apply to a case like this and on the other hand, the reasons are strong for not obstructing the application of natural justice against the government by technical formulas, when justice can be done without endangering any public interest.

Unknown Speaker: And you are reading from?

Mr. Sydney H. Mckenzie Iii: I am reading from Luckenbach Steamship versus The Norwegian barque, the Thekla.

Unknown Speaker: Wasn’t that pretty well limited to admiralty cases by the Shaw case that was decided later?

Mr. Sydney H. Mckenzie Iii: No, Your Honor, I submit what the Shaw case did was simply state that the Thekla should not be interpreted as throwing the gates open wide to counterclaims against the Federal Government, and I do not think it does, and I do not think the language of it should be interpreted as doing so.

I do not believe that it did limit it to the -- it distinguished it on the grounds that it involved a liable involving vessels but in distinguishing on that factual basis, it simply said that the case does not throw the gates open to counterclaims.

I do not submit that it does throw the gates open to counterclaims.

Unknown Speaker: Except this one.

Mr. Sydney H. Mckenzie Iii: Well, except this one as one unique circumstance, Your Honor, and it is unique.

Unknown Speaker: But what limit would you put on it?

Mr. Sydney H. Mckenzie Iii: I would put on it the limits of a counterclaim which one, does not involve the expenditure of public funds; two, does not involve an assertion of a right regarding federal property; and three, does not interfere with public administration.

Unknown Speaker: Well, what 29.12 United States says that interference with what the 29.16.

Mr. Sydney H. Mckenzie Iii: Well if they say, it involves...

Unknown Speaker: An interference with the federal control 29.22.

Mr. Sydney H. Mckenzie Iii: But that is not what they said, Your Honor.

Unknown Speaker: But what if they did?

Mr. Sydney H. Mckenzie Iii: What if they did?

I would submit that it still would not...

Unknown Speaker: What is your thought of -- what do you understand the Government’s theory is with respect to the area between three and nine marine league?

Mr. Sydney H. Mckenzie Iii: Well, unfortunately, the arguments in their brief and their arguments and the statements by state department officials run somewhere non-parallel to each other.

In their briefs, they argued that really the reason you do not want to bother with this is because if somebody comes in to within three leagues they are likely to be stopped by the Federal Government out there and they are not likely to come within three miles so it is not an issue that we should be bothered with at this time.

Their position there really is one of in effect saying it is not going to make any difference in foreign affairs.

On the other hand, the state department officials who responded to interrogatories simply said that it is their understanding that the Federal Government has absolute and unilateral control over foreign nationals fishing in Florida waters or any other waters.

I would submit that it is really on the basis of in part federalism that we have come before this Court.

They have argued in their argument on instituting the original suit that within the three mile to three-league area that it is imperative that this Court decide the issue and that they filed their complaint.

The reason being that if we arrest a foreign national in that three league to three mile area, that it may cause this Court to be faced with a situation or it cause the Federal Government to be faced with a case where we have embarrassed the Federal Government in its international policy by arresting a foreign national that they do not feel we should arrest.

Unknown Speaker: Well, don’t you think there is something to be said for that if anyone on behalf of a dozen or more states is free to go out and grappling hooks on a Russian fishing boat, or Panamanian or whatever and pull them into the shore and hold the crew in custody.

Mr. Sydney H. Mckenzie Iii: Absolutely, Your Honor and that is exactly our point in bringing this counterclaim.

What is true between three miles and three leagues is just as true between the coastline and three miles.

If we can impair...

Unknown Speaker: That all goes to the merits of this controversy.

We are not here involved with that, are we?

Mr. Sydney H. Mckenzie Iii: I am sorry, Your Honor.

Unknown Speaker: All these things go to the merits of whether or not you are right or wrong to the merits.

Mr. Sydney H. Mckenzie Iii: Well, in order to determine whether we fall within what we feel as the exception to the absolute prohibition against counterclaims as expressed in the Thekla case.

I think you have to address the merits of our relief, what relief we are seeking.

We are seeking a pure declaratory judgment.

We are not seeking -- if the declaratory judgment was decided, the limitations of the relief would be -- if there were any limitation, it would be limitation on the States, not limitations on the Federal Government.

We recognize that Federal Government has concurrent power to exercise police power within this area, so that no decision will be made limiting the Federal Government’s police power, no monetary decision would be made against the Federal Government.

No limitation of their administrative powers would be asserted, no embarrassment would come to the Federal Government as in some other cases.

This is a peculiar, unique case where the States of Florida and Texas need an answer.

They need an answer to an issue that, in basics, it was raised originally by the Federal Government.

That is the basis of our coming in to court.

That is the basis of our seeking this litigation where we would be placed in a position where even though a partial addressing of the issue had been made, where we would not be able to properly direct our people as to what to do or not to do and they have indicated to me that they… Yes Your Honor.

Unknown Speaker: Is it not possible that the Master and presumably this Court may accept the report, would rule that the same rule of law applies within the three-mile limit as applies between the three miles and the nine miles limit and if he does, then won't you get your answer when the case is all over?

Mr. Sydney H. Mckenzie Iii: Well, Your Honor, of course something like that would be true in any case where there was a possibility of a counterclaim that a court might go beyond the declaratory relief of the original action but the result would be that by relying on happenstance and chance in that way, the positions of the parties would not be set forth for the benefit of the Master or for the benefit of this Court.

Unknown Speaker: The other thing that you are really worried about is if the Court rules with the Government you can't file a new suit because of Sovereign Immunity.

Mr. Sydney H. Mckenzie Iii: Well, that is why I say it is a matter of happenstance.

Of course, that is what we are concerned with.

Unknown Speaker: Weren’t you considering filing the suit before the Federal Government did?

Mr. Sydney H. Mckenzie Iii: Were we considering filing it?

Unknown Speaker: Yeah, and found out you could not, so you waited.

Mr. Sydney H. Mckenzie Iii: Not to the best of my knowledge, Your Honor.

Unknown Speaker: It is not possible, is it?

Mr. Sydney H. Mckenzie Iii: Our people were asserting their rights quite unequivocally, and I think that is what inspired the Federal Government to bring this suit.

Unknown Speaker: But the point is that right now the Federal Government withdraws the suit.

Mr. Sydney H. Mckenzie Iii: Yes, Your Honor.

Unknown Speaker: So, would your counterclaim be ignored.

Mr. Sydney H. Mckenzie Iii: If they would -- yes and I am saying if the issue it should be…

Unknown Speaker: The only way you have got a counterclaim is because they filed a suit.

Mr. Sydney H. Mckenzie Iii: And that is exactly the language of the Thekla where they said, it is said that there is no statute by which the Government accept this liability.

You joined in the suit and then carried with the acceptance of whatever liability the courts may decide to be reasonably incident to that act.

What we are asking is that if the Court decides that this is a suit that should be brought, if the issue of police power in the adjacent coastal waters is a proper issue to be before this Court, then it makes no sense to decide half the issue that it is appropriate without any exposure to the Federal Government for the Master and this Court to decide the entire issue, that it is appropriate that it comes within all doctrines of judicial expediency, one of point which was raised by the Justice Department in earlier case today that multiple litigation is something that they 36.22.

And I suggest that if they 36.25 in that case, it is appropriate for this Court to uphold it in this case Your Honor.

Thank you.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.

Attribution:

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Featured:

Utah v. United States - Oral Argument

Thu, 23 Aug 2012 18:12:41 +0000

Case:

Utah v. United States

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31orig_19741217-argument.mp3

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31orig_19741217-argument

Transcript:

Argument of Danny Julian Boggs

Chief Justice Warren E. Burger: We hear arguments next in number 31 Original, State of Utah against the United States.

Mr. Boggs, you may proceed whenever you’re ready.

Mr. Danny Julian Boggs: Mr. Chief Justice and may it please the Court.

This original case is here on exceptions to the Report of the Special Master in reliction phase of the continuing litigation between Utah and the United States, over the ownership of land and the vicinity of the Great Salt Lake.

This litigation was authorized by the Great Salt Lake lands Act of 1965. Pursuant to that Act, the United States in 1967 quitclaim to Utah all of its interest other than mineral rights within the surveyed meander line of the Great Salt Lake, that line generally or not invariably, runs on land that has been above the Lake level for 50 years or more.

Utah was to pay for that land that the United States stated that it owned or to litigate the United States title in an original action in this court, Utah chose to litigate.

In the first stage of this litigation, this court held that the Great Salt Lake was inevitable and that Utah does acquired title to its bed at statehood in 1896.

This settled the question of ownership of the land that was still underwater at the time of the deed in 1967.

That area is the inner lighter shaded area on defendants exhibit two, the map shown in the back of the Special Master’s report.

We are today concerned essentially with the area between the level of the Lake at statehood and the level of the Lake as of the date of the quitclaim deed.

That land is the middle darker band shown --

Chief Justice Warren E. Burger: Let’s find that map, we got several exhibits here.

Mr. Danny Julian Boggs: Yes sir.

The defendant’s exhibit two is about the exhibit from the back of the set of exhibits.

Yes sir.

Mr. Justice Stewart that is the map.

We are today discussing essentially the title to approximately, the middle, darker colored band on exhibit two.

Justice Byron R. White: Mr. Boggs, are the parties’ now in agreement as to the two errors that were mentioned in the Special Master’s report, the state of that level --

Mr. Danny Julian Boggs: The 4200.2 against 4200.8 in the 396,000 (Voice Overlap)

Justice Byron R. White: That’s correct.

Mr. Danny Julian Boggs: 25,000.

Yes sir, I believe that we both in our briefs stated that we were in agreement with the facts as we each stated them.

Justice Byron R. White: So that’s out of the case at this point.

Mr. Danny Julian Boggs: Yes sir.

Justice William H. Rehnquist: Mr. Boggs, you say that we’re discussing the inner darker and (Voice Overlap)

Mr. Danny Julian Boggs: The middle.

Justice William H. Rehnquist: That’s assuming that all of the circumference of the Lake were claimed by the United States though (Voice Overlap).

Mr. Danny Julian Boggs: Your Honor, it’s correct that we’re discussing specifically those areas in which the United States is the upland owner across that middle land.

The United States contends that by operation of the doctrine of reliction as consistently recognized by this court, the Lake bed which Utah owned receded as the Lake receded and to the extent that it was the upland owner, the property interest of the United States extended down to the new water level at the date of the quitclaim deed.

Utah on the other hand, contends that the measure of what it received in 1896 was absolutely fixed as of that date and has not altered by any change in the waters of the Lake.

The basic question is thus, whether the boundary between the Lake bed, undisputably owned by Utah, and the upland undisputably owned by the United States is to have been measured in 1967 with relation to the actual water level in 1967 because the boundary is an ambulatory one, or whether that boundary should have been measured with respect to where the water stood at statehood or even earlier in the 19th century.

I would note that once it is decided as which date is the date on which the line is to be fixed.

An exact line must be determined which may or may not require further litigation.

Thus, the outer lighter colored band on the map would be the land between the Lake at statehood and the surveyed meander line, for as Utah contends that at statehood, it gained everything out to the meander line, the United States would contend that even if the date was fixed at statehood, that was fixed at about the Lake level of that date.

That outer band is not in consideration in the litigation today.

Today as I said, we are concerned with the application of the Doctrine of Reliction to the circumstances of the movements of the water of the Great Salt Lake.

To first state that doctrine, I would give you what this Court said in Bonelli last term in which the Special Master quoted that the general law of reliction is that the grantee of land, bounded by a body of navigable water acquires a right to any gradual accretion formed along that shore.

And in light of that, I would look at the physical facts of the movement along the Lake which are undisputed.

The exhibits on the Report of the Special Master, demonstrate that the waters of the Great Salt Lake do rise and fall, and as they do, considerable areas of shore are exposed or covered.

Now, one major component of this movement is the change caused by the passing of the seasons which can be seen on any of the exhibits that the Master has inserted, showing the levels of the Lake.

Every winter and spring, there is a rise as precipitation on snow melt increase and every summer and fall, there is a decline because of less moisture and more evaporation.

This seasonal change of course, the parties’ all agree, does not change the boundary, not because it may be so rapid or large as to be visible or perceptible but simply because it is a seasonal change as shown by cases that we’ve sighted at pages 15 and 16 of our brief in Utah at pages 67 and 68 of their brief.

In just the same way, an observer or a gauge on a river would note the rise of flood water seasonally or on an ocean would note extraordinary tides at certain astronomical seasons.

These two, would not cause a change in the legal boundary.

Another component of the change is caused by the temporary factors that may come and go in the course of a day or a few days.

These are shown on Exhibit P-16 which is not reproduced in the Master’s Report but it’s simply a gauge, a continuous recording of the movements of the Lake over the period of a month.

And that exhibit and the testimony show that these changes are almost exclusively caused by a wind or atmospheric disturbance which pushes down or pushes up the Lake in one end, and then by a so called seiche effect, the lake oscillates back and forth, just as if you slash a bath tub, it will slash back and forth with diminishing vigor, rising and falling at the ends until it begins to stabilize.

But this too is a temporary occurrence.

But finally and most profoundly, the water level is changed by the effects of climate over many years.

A land that is exposed or covered may stay that way for decades.

For example, when the Lake recently rose above 4200 and one feet above sea level, it covered the land that had been dry since before 1930.

And when the lake went down in the early 1960s, the land was exposed which had never been uncovered in historical time.

We submit that it is these long term effects only which vary the legal boundary.

These changes are exactly analogous to the changes on wandering rivers such as the Missouri or Mississippi with which this court has many times dealt.

There, a river may move gradually in one direction for some years and then reverse itself and return to its previous location or even beyond, but of course during that movement, the river itself may be rising and falling, covering and uncovering land due to floods and droughts in temporary phenomenon.

And yet in each of these cases, the doctrine of reliction has always been applied.

I would note that a similar contention to Utah as here was made in the case of the Missouri River and the Court’s reply which is cited on page 17 of our brief stating that it is contended however that the Doctrine of Accretion has no application the Missouri River on account of the rapid and great changes constantly going on, but our conclusions are that not withstanding the rapidity of these changes, the Law of Accretion controls.

Justice William H. Rehnquist: Well, it wasn’t what the Court was addressing itself to, the contention to parties that along the Missouri River, great big pieces of the bank would sluff off.

And you could physically see them go.

Mr. Danny Julian Boggs: Well, Your Honor, I think that that was -- that was certainly the aspect that was before them and the Court in dealing with that said that you have to if the falling off of the bank in that instance is a result of essentially a seasonal flood that that itself does not change the ordinary rule that despite the fact that the river may move rapidly.

If taking the situation as a whole, you can say that there’s been a gradual or imperceptible movement when you say here it is and so many years later, here it is, that reliction will still apply.

I would turn now to the --

Justice Potter Stewart: Before you do Mr. Boggs and may be you have answered this -- these concepts of accretion and reliction and on the other hand the revulsion are well known of course to the law of rivers where the river is a boundary or either state boundary or boundary of somebody’s property in prior property disputes.

Are there any cases until this one involving Lakes?

Mr. Danny Julian Boggs: I believe of the Supreme Court cases that this may be the only one, there are certainly numerous state court cases which refer the Lakes and of course the same rules have been applied on an ocean which is yet a third situation such as Hughes versus Washington which this Court decided some six or seven years ago.

The statement has been continually made through all of these cases that the law as to accretion and as to reliction is essentially the same.

Justice Potter Stewart: Yes.

But hasn’t that always been (Voice Overlap)

Mr. Danny Julian Boggs: Well, reliction is normally what’s being talked of with regard to a lake that is, the water rises and falls.

Accretion generally relates to new land being deposited by the movement of a river on an ocean or conceivably even a lake if you had a heavily salted lake.

Justice Potter Stewart: Bonelli case involved --

Mr. Danny Julian Boggs: That was Bonelli involved the Colorado River which (Voice Overlap).

Justice Potter Stewart: Are there any federal cases involving a lake?

Any Great Lake cases or --

Mr. Danny Julian Boggs: I couldn’t say. I know that certainly that it’s my impression that the dunes on the Great Lake are built up (Voice Overlap).

Justice Potter Stewart: I remember against Washington involving the Pacific Ocean.

Mr. Danny Julian Boggs: I can’t call a specific case to your attention at the moment.

Justice William H. Rehnquist: And really, you’re typical regimen in accretion case in a river is quite different from what the evidence shows here about Great Salt Lake.

Isn’t it where you have erosion on one side of a bank and deposit on the opposite side until finally the thing becomes more and more noticeable and you ultimately get a cut off of an (Inaudible).

Mr. Danny Julian Boggs: Well, you may or may not get that cut off.

There are many cases which we cite in our brief where the river moves one way and then it simply moves back the other way so that you get that kind of a movement which we feel is quiet analogous to what has happened here.

Justice William H. Rehnquist: One case that has applied the Doctrine of Reliction to a lake I guess is the decision of the Supreme Court of Utah in the Hardy case, applying at the Great Salt Lake.

They said that it wasn’t applicable.

Mr. Danny Julian Boggs: Right.

They stated that -- when you look at Utah cases, this was brief fairly, thoroughly before the Special Master and then because of this courts decision in Bonelli, the federal common law controlled -- we really not considered it extensively since then, but my recollection of the Utah cases before Hardy which include cases on lakes such as Utah Lake which is also a very flat lake.

Indicates that they seem -- on Utah Lake, it may have some application and the earlier Utah cases would indicate that there may have been application even on the Great Salt Lake.

Justice William H. Rehnquist: Well you said that because of Bonelli, you haven’t look further into this Hardy case but I would have got the source of federal common law if that be what governs -- is presumably be the decisions of other courts.

It may have addressed the same problem.

Here, you have a finding by the Special Master that the Great Salt Lake is unique and the conclusion by the state court having jurisdiction over that lake, that because of that fact, reliction doesn’t apply.

I would think in formulation of federal common law, we would play a great deal of attention to that Hardy case.

Mr. Danny Julian Boggs: Well Your Honor, we would submit and I believe in our brief before the Special Master argued that even at that time we said, if you want to consider Hardy that the “uniqueness” which is really the underlying supposition of the Utah argument is based upon this temporary and seasonal fluctuations.

So, this is where we get into the whole mathematical controversy over how gradual or perceptible it has been but that, simply because during the course of a seasonal rise and fall or during the course of a storm, the lake moves rapidly in one direction or another that this is not a unique factor.

This is not something that is not seen on rivers and Mr. Justice Stewart mentioned the Great Lake.

So certainly, the Great Lakes even have the same kind of Seiche effect, where the wind piles up the water at one end and then it oscillates back and forth.

So, we recognize that that case exist, we believe that it suffers from the same flaws as the doctrine as a whole.

Justice Byron R. White: So, you think the reliction -- it would be called reliction if suddenly, all the waters that runs in to the -- all the streams that run into the Great Salt Lake were diverted?

Mr. Danny Julian Boggs: Well Your Honor, that would --

Justice Byron R. White: And then, the lake just hasn’t any water running into it and it just dries up.

Is that reliction?

Mr. Danny Julian Boggs: That would either be several things that would apply there.

One is that in certain of the case is the question of whether a change has been natural or not, has been held to be significant.

In Bonelli, the court held that it was not, but certainly, if the -- particularly, I think there is a line or two in Bonelli that mentions that if the drying up of the lake by diverting the tributaries was caused by one of the parties with that specific intention that that would certainly be a factor as to whether or not it should apply.

Justice Byron R. White: Think about it now -- would it be a reliction or not?

Mr. Danny Julian Boggs: Well, we would have to look at exactly what the circumstances are.

Certainly, there are various cases that hold when you simply drain a lake for the purpose of doing something else with it and perhaps you’re going to turn it back that that is not a reliction, that’s long-year mining.

And certainly, as I said, if the United States were to turn it off for the purpose of gaining that water, it would not be a reliction.

If as perhaps people thought in 1963, the lake simply dried up completely, I think we would have to state that that was a reliction.

Certainly, the Great Salt Lake has been drying up for some 10,000 years and if we were not to say that reliction applied, I don’t know why Utah should not claim it all the way back to ancient Lake Bonneville if the boundary is not an ambulatory one but a fixed one --

Justice Byron R. White: Utah has been a (Inaudible)

Mr. Danny Julian Boggs: Well, as Utah notes however, they claim the water back before where it was in 1896 back to the meander line which was the first time that man started drawing those lines.

I would turn now to the specific components required for the operation of the Doctrine of Reliction and to examine how they apply to the facts of the Great Salt Lake.

The key element in the past perhaps before Bonelli, has certainly been that the movement in the waters edge is not sudden or violent but gradual.

This is stated in various holdings of this Court such as Philadelphia Company versus Stimpson, stating that the title would be fixed and would remain the same when there is a change that is sudden or violent or visible in a word an evulsion.

Now here, all parties agree that no evulsion has taken place and as we have noted in our brief, there are normally -- when you see the water at one place today and another place 20 years later, there is a presumption, that it has moved by a reliction or an accretion.

Justice William H. Rehnquist: I realize that the presumption applies in the cases of accretion but do the cases support you in saying that there’s the same sort of presumption where you are arguing for reliction?

Mr. Danny Julian Boggs: The case in that sense if there -- the question is, is there a specific lake case that would hold that?

I don’t believe so.

The doctrines have generally been spoken of together and have not been differentiated in that way.

Now, the brief discussed at some length the question of just what movement should be measured and whether that movement is imperceptible and I’m prepared to discuss that further if you wish. But we would note that in Bonelli, this Court casts considerable doubt upon the necessity even for literal imperceptibility.

The court in Bonelli noted the interest and the policies behind reliction saying, that a riparian owner has an expectancy and an interest in remaining riparian to his land and that, since he might lose the use of his land when the water rises, so he should gain the land that would be exposed when the water falls.

And in Bonelli, the court found those policies so strong that it held that a riparian owner was entitled to remain riparian even though the land, the water actually moved perceptibly.

Thus, the Master statement that he could not find the movements of the lake to be imperceptible, does not necessarily defeat the application of the Doctrine of Reliction after Bonelli.

In any event, as we essentially -- the same answer we would give to the Hardy salt question.

The examples given by the Master at pages 17 to 20 of his report about these great fluctuations, each example that he speaks of are essentially the seasonal and daily changes that we spoke of.

Now, we concede that during a seasonal rise or during a storm, you can look at the water's edge and you may be able to see it move.

But certainly, in the course of a Missouri River flood or a Bay of Fundy spring tide, the effect on the shore lands would be equally visible and perhaps even more dramatic than these changes on the Great Salt Lake.

Now, the second factor on which the master relied was whether the changes in the lake were reasonably permanent.

A close reading of his conclusions of law in fact, I think indicates that this was the bedrock of his decision because he first stated that the federal common law of reliction does generally apply and then stated that the question of ownership of the lands in question, “depends on whether the exposure of the land referred to, either by a perceptible or a gradual and imperceptible process,” thus, perhaps taking account of this change in Bonelli.

“Constituted a reasonably permanent or stable addition to the riparian land.

And this foundation of the Master's Report, we contend is simply not the law.

Certainly, none of this court’s cases over the past century and more have indicated that there can be no reliction or accretion if the body of water under consideration may reverse its course.

In fact, many of those cases concerned body of water that were known for wandering back and forth such as the Mississippi and Missouri Rivers.

We sighted also a number of state cases concerning these rivers --

Justice Byron R. White: And what happens when the -- if you’re right, when the bottom of the Salt Lake becomes uncovered, there’s a reliction -- then what happens when its covered for another 20 years?

Mr. Danny Julian Boggs: Well, just the same way when the river moves when the lake goes back up as it has in the present time.

Utah is the owner of the Lake bed just as the owner of the river bed -- it’s ownership (Voice Overlap).

Justice Byron R. White: Well then you pay them back, what would’ve paid you in this case?

Mr. Danny Julian Boggs: Well Your Honor, it’s going to cover that in the section on equities toward the end but I’ll handle it right now.

Certainly, I think that at the bottom.

Justice Byron R. White: You’re asking them to pay you for (Voice Overlap) so you owned it.

Mr. Danny Julian Boggs: At the bottom, the real difficult (Voice Overlap).

Justice Byron R. White: when it’s not covered.

Mr. Danny Julian Boggs: At the bottom, the real difficult that the United States had over this case, I think is not a legal one.

It’s the equitable position that we’re asking them to pay for land that’s now underwater.

But that’s simply --

Justice Byron R. White: It may be underwater for quite a while for all you know.

Mr. Danny Julian Boggs: We don’t know, that’s exactly the point.

We passed a deed in 1967.

It’s just exactly the same as if I’m a river bed owner, a river shore owner and I’m worried about the river just as Utah was worried about the Lake and I buy the land on the other side of the river from the other owner and contract to pay him for it.

And in the passage of time, the river starts moving over there and lo and behold --

Justice Byron R. White: That’s alright but you have another condition in your deed.

We’ll have to decide out who -- we have to decide who owns it first.

Mr. Danny Julian Boggs: That’s correct.

But I’m saying --

Justice Byron R. White: That’s a big difference.

Mr. Danny Julian Boggs: But Your Honor, the question of who owns it -- we submit cannot turn on what -- on the specific of what’s happened to the Lake since then --

Justice Byron R. White: Well, it is but you’re relying on reliction.

Mr. Danny Julian Boggs: We’re relying on reliction as to the question of what was passed by that deed in --

Justice Byron R. White: If that relicted more or you would be relying more.

Mr. Danny Julian Boggs: No Your Honor.

If it would have relicted more, that’s exactly the opposite -- that’s exactly the point.

If the Lake had gone further down, we could not have asked Utah to pay for that land because they would have already owned it in 1967 as a result of this Courts decision on the navigability issue.

And that’s what -- the water went up and you might say that Utah lost its gamble.

They’re being asked to pay for land that’s now under water.

If the water had gone down, the United States would have lost the gamble and Utah (Voice Overlap).

Well Utah -- now, another point on the equity is that Utah has the opportunity of course simply to renounce the Act, not pay for it and then they’ll own it under the doctrine of reliction.

What they’ve contending for here is sort of a both ways test when the water is up.

We feel that they want reliction to apply and when the water is down, they don’t.

Another example of this Your Honor, they contend throughout that they have great interest in the lands on the edge, marsh lands and this sort of thing.

And yet, under their contention, when the water goes up whether above statehood or above the meander line.

We have this controversy that the one it goes above the 1896 levels -- then Utah does not own those edge lands.

Utah’s boundary by their contention is exactly fixed and there they are left with an area in the middle of the lake in the upland owners such as the United States and private parties, owned all of those edge lands.

And that’s the reason that we believe that here just as in -- as in all of the other cases that have applied reliction that that is the basis for having an ambulatory boundary rather than a fixed boundary.

We recognize that there are certain problems that an ambulatory boundary causes here, the court noted similar problems in Louisiana versus Texas with a three-mile limit.

But we would submit and I think this is the basis of all of our arguments that the fixed boundary causes even more problems for periods of decades and even longer, the Utah who is supposed to control the lake would find that large areas of the lake were out of its control and perhaps for equal periods or riparian owner who has an interest in remaining riparian would find the lake to be miles from him and it would remain there for 30 years.

This is really the difference between the problems that are caused by the seasonal fluctuations, and the fact that the long run fluctuations of the lake are far greater that you do have the seasonal fluctuation but it will be over here one year and it will stay there.

And then 20 or 30 years later before it may ever come back or it may never come back.

If there are no other questions, I would --

Justice Byron R. White: Yes, I have a question.

Mr. Danny Julian Boggs: Yes, certainly.

Justice Byron R. White: Utah on its brief on page 96, suggested a change in the first paragraph of the decree.

Your reply brief, came in just a day or two ago, but I haven’t read it thoroughly but I don’t believe it answers that suggestion.

Do you have any comment to make about that -- ?

Mr. Danny Julian Boggs: Your Honor, it's my understanding from the other people concerned with this other litigation that we would not be greatly distressed with theirs.

We feel that our suggestion is in accordance with the previous decrees.

Apparently, since the brief of Utah was submitted that the Tenth Circuit decision has come in and I believe that it was essentially adverse to the United States or at least made no use of our argument concerning the words such as, we have no strong feelings or direction on that.

Justice Byron R. White: Thank you.

Justice Harry A. Blackmun: Well except for these differences that divide you, would it be feasible for you to agree as to on a decree?

Justice Harry A. Blackmun: Well Your Honor, the problem --

Justice Harry A. Blackmun: If some of their suggestions you abide, that we wouldn’t have to decide which one of you --.

Justice Byron R. White: If you’re talking about this single point which is whether or not we say such as -- there are two totally technical points that we agree on and that was the first question asked I believe.

This point on the “such as”, I believe that it’s possible to work out.

Justice Harry A. Blackmun: Can’t you do that?

Justice Byron R. White: We’ll certainly try.

I have reserved the balance of my time.

Chief Justice Warren E. Burger: Mr. Dewsnup.

Argument of Richard L. Dewsnup

Mr. Richard L. Dewsnup: Mr. Chief Justice and may it please the Court.

Chief Justice Warren E. Burger: Before you proceed, let me suggest that if you gentlemen find some area of common ground, literally and figuratively, you’ll let us know promptly, won’t you?

Mr. Richard L. Dewsnup: We will.

I would like a little clear picture as to exactly what we might be expected to do in that regard so far as making some interim report back to the court.

I’m not too clear on that.

Chief Justice Warren E. Burger: At least speaking for myself.

I’m not too clear either.

But if you two gentlemen can’t be clear on it, then no one can.

Mr. Richard L. Dewsnup: Well, let me spend just one second at the beginning with respect to the words “such as”.

Utah certainly doesn’t want to be technical with regard to a couple of words as we pointed out in our brief and incidentally, the Tenth Circuit case was decided and this court denied cert two or three weeks ago on that case.

But Amoco Oil Company is ready to drill, offshore drilling of the Great Salt Lake now and the army core of engineers has contended that Amoco cannot go ahead pursuant to the authority it has in the State of Utah because under Rivers and Harbors Act they have jurisdiction, they have to apply in that but go through the environmental study etcetera.

Well that hassle never was before the court before.

And the argument made in the Tenth Circuit was this court’s insertion by it’s own initiative of the word “such as” was in adjudication of the regulatory authority of the United States, applied to the Great Salt Lake as a navigable water of the United States.

Now, as our brief points out and I think that the brief is enough of a background and that is why we did not want a couple of innocent looking words to create all kinds of problem that the actual physical administration and management of the lake.

And so, as far as I am concerned on the words “such as” if the government does not insist on putting demand, we would like to have them out and if we can agree on that now, then we’ve agreed on all three changes suggested at the latter part of our brief of the event that the court looks upon Special Master decree as one that might be entered here.

This case is rather unusual and that the parties really do not disagree on the legal principles of reliction as maybe stated and as they have developed a common law and as they appear to be reflected in the federal cases that have applied the doctrine and we really don’t defer with respect to the facts.

The real difference is which facts are relevant to this case and whether or not these facts would seem to satisfy the Doctrine of Reliction.

Now, the thing that seem to oppress the Special Master the most, and I think through his discussion, his findings, his conclusions that he mentions more than a dozen time the unique, unusual circumstances of the Great Salt Lake, this simply cause the Doctrine of Reliction not to fit.

And the reason for that as the Master points out is this briny residue of the Ancient Lake Bonneville, the Great Salt Lake is in the bottom -- very flat based.

The shores are virtually horizontal.

It has no outlet as most lakes have some kind of tributaries flowing in, in some kind of outlet and they serve to be self regulated.

The Great Salt Lake isn’t -- you put water in it and it’s like putting water in the glass. The only way it’s going to leave is by evaporation.

And because of the very flat shore lands, any water that comes in until it evaporates out, it causes the water to move out almost horizontally and then, as the water evaporates, it moves back in almost horizontally rather than a body of water would if it had reasonably steep shores.

And so, because of those very unusual characteristic as the Special Master continue to characterize and is unique, he just could not find on the evidence presented that there had been any gradual imperceptible or reasonably permanent process which had created new uplands as distinguished from the part of the bed of the lake was -- there was subject to inundation from time to time.

Chief Justice Warren E. Burger: Are these inlets -- these streams coming in, all from the mountains?

Mr. Richard L. Dewsnup: They are all from the mountains.

Some distance, removed when the streams get next to the lake for a period of miles or 10, 20, 30 or 40 miles, they might meander slowly across relatively flat terrain, even though the head waters would be in the mountainous regions of Wasatch Range.

Justice Potter Stewart: The petitioner has a video to deal with it, didn’t it?

Mr. Richard L. Dewsnup: Yes, as Mr. Arnold of the United States geological survey explained at some length and I think it summarized to the extent of the brief.

The winds, the temperature or the salinity of the waters, the gradience of the shores, all of these things intermixed because the lake continuously fluctuate.

It’s virtually impossible to have a moment when the total inflow exactly equals total evaporation.

You just don’t get that moment in time.

And so, however gradually in volume, the lake is either going up or going down and that movement is greatly exaggerated by the relatively flat shore lands -- the extremely flat shore land.

I would like to mention a few of these practical or analytical errors that we think and the Master thought that the government had fallen into and the analysis of its case.

When the government said that the only practical argument against the government’s case is if the lands of water covered now that just simply isn’t true.

For one thing, the government chooses to ignore the actual water movement.

Here’s a basic hydrograph which appears as the first attachment to the Master’s Report Exhibit P-4.

It shows the basic annual movements of the lake from 1850 to 1973 when the hearings were held.

And incidentally when the lake was first viewed in 1850 was the same elevation, almost exactly as it was in 1973, although the variations from year to year and month to month and over the long term are rather remarkable.

But in any event, the government ignores the actual water level or the actual water movement or rate of water movement and computes an average annual stage of the lake by computing the level or stage of the lake, one year as it would compare with the preceding year, which serves to remove the daily, weekly, monthly seasonal fluctuation.

Now, the parties agreed that daily, weekly seasonal fluctuation do not result and it changes boundaries by reliction.

But the government then goes to compute the rate of movement of the water by reference to this averages which has nothing at all to do with the actual rate of movement of the water.

And the government calculates that the water moves at a speed of one-and-a-half inches per hour on the average, all the way around the lake and 15 inches per hour in its most rapid rate of speed.

But that just simply isn’t so.

And the government would have to acknowledge that isn’t so as well because they base their calculation not on the water movement itself but upon assumed levels or stages of the lake.

A second analytical error is the governments’ failure to consider in computing its average movement.

The Special Master made a special note of this and the pictures throughout the brief, the black and white pictures I think illustrate.

Generally, the lands are very, very leveled but where the mountains come out into the lake, there are variations in the gradient which would have a direct impact on the rate of movement of the water where the land is really flat.

The lake comes up, the water moves over that much more rapidly where a mountain comes down at 45 degree angle into the lake.

Another error in the governments’ calculation, it based its rapid imperceptible criteria and argument on the 350-mile contour line which is situated within the lands now in dispute.

But that 350-mile line is the surveyed meander line that the parties used as a basis for exchange in a quitclaim deed to illustrate that problem very briefly.

We’re talking about an inland lower elevation line that is substantially shorter than the surveyed meander line that might have a distance of approximately 350 miles.

Now, that mathematical calculation might not be terribly serious, the government contends that even if its off 50 miles in the estimate that the rate of movement of the water is still gradual and imperceptible if it can use its averaging technique to compute the rate of movement of the water.

And let me emphasize in this regard that Judge Fahey, Special Master Fahey was not overly impressed with the rapid actual movement of the water that will move perhaps several inches per second in the flattest area.

His conclusion was while that water movement does not change boundaries, when you’re talking about reliction and the change in boundaries by the doctrine of reliction, you simply cannot ignore the water movements for the purpose of telling where the water is and where it goes and whether or not the shorelands we are talking about have been exposed with some kind of reasonable permanence or some kind of stability so that if you’re going to cause changes in real estate titles you don’t have to do it everyday or every week.

And so, that was the emphasis that the Special Master placed on the water movement.

Chief Justice Warren E. Burger: Well, that was partly because there were such sharp changes within even in a 24-hour period.

Mr. Richard L. Dewsnup: Yes.

Chief Justice Warren E. Burger: I noticed that if he makes the observation that on June 6, or the water level rose and fell ten times that the lake level for that day averaged a stable level.

But then, at the end of the day on June 5 to the beginning of June 6, the water dropped to more than two feet and the wind apparently comes for that.

Mr. Richard L. Dewsnup: Well, not necessarily, I think that those calculations were based on some exhibits that we prepared and introduced which were not necessarily the wind tide days.

Mr. Arnold identified certain days as being definitely wind tides and those figures there were based on what appeared to be reasonably average days from the June 1967 hydrograph.

What the Special Master did, he noted the variations and the dramatic fluctuations over long term periods, intermediate periods and short terms periods and then said, well, this actual water movement does not necessarily result in a changed -- does not changed by reliction.

Still, we cannot ignore these fluctuations, dramatic as they are and their impact on this flat shore lands in deciding whether or not the common law has evolved the doctrine that reapplied to the Great Salt Lake.

A plain and simple fact that the Master review is that we just don’t have another body of water, an Anglo-American jurisprudence like the Great Salt Lake.

Justice William H. Rehnquist: Well, I suppose the difference between May and October in one particular year could be a great deal difference than the difference between May 1960 and May 1970.

Mr. Richard L. Dewsnup: Yes, that’s true.

I would like to make a couple of comments with respect to what we have called the government shooting boundary and the government has said in its reply brief that it is not a shooting boundary but I’m not able to tell how the government would calculate its boundary based on its averages of the doctrine of reliction and accretion developed.

As by small and imperceptible degrees, little by little, gradually either deposits would form and form fast land as in accretion where the water would gradually and imperceptibly change so that the stage in the body of water has changed.

And the annual fluctuations of the lake from its average high water to average high water in the following year would not expose this newly created land or newly exposed land and a new water mark, ordinary high water mark would form.

And then you have land formed either by accretion or reliction.

But the government seems to suggest that it would take the average annual readings of a particular year and having computed that average that that level would then be a sign for January 1 of the following calendar year and that would be the boundary separating the reliction land from the state owned bed of the lake.

Then, there are some suggestion that maybe if you take intermediate readings of periods shorter than a year, I’m holding up what is exhibit -- plaintiff’s exhibit 13 which the Special Master did not attach to his report.

And maybe, I will not be able to illustrate this too well but each one of these about an inch and a half horizontal distant sections.

Chief Justice Warren E. Burger: You have to hold that a little bit higher for us.

Mr. Richard L. Dewsnup: Is a one year period of time.

Let the government see this.

If you take for example the year 1968, then this follows the water level growing to the period of 1968.

If you take an average water level for the year 1968, and use that for January 1, 1969, then the minute that you assess your contour line as the boundary of the water covered and the it's got to remain water covered for practically the entire year of 1969 and in some cases, one, two, three or nearly four feet in vertical elevation which will need about 200,000 acres of the water covered bed of the lake would under the government's view of the Doctrine of Reliction -- it would be the reliction boundary line.

And you will see that if you follow these through from year to year, and every year when the lake is on the rise that it has been in recent years, the governments’ view of the Doctrine of Reliction each January 1, you’re going to be placing the reliction boundary line underneath the water, and it’s going to stay under the water for most of the year.

And that’s about as diametrically opposed to the common law concept of reliction as it could be.

Another practical aspect that isn’t of any great legal consequence is that these lands are no particular value to upland riparian owners.

It’s not the typical case where someone needs to pour about or needs access to the water for the typical riparian purposes.

We have included in our brief, the black and white pictures which show the lands in dispute in various places around the lake.

The colored pictures which are in Exhibit P-6 were taken when the water level had just about exactly inundated or covered the lands in dispute.

I’m sure that these pictures won’t convey much from this distance.

But if the court cares to look at Exhibit P-6 and note the shorelands, immediately upland from the lands that are in dispute, we would see the so called riparian uplands where the claimed riparian uplands that would be claiming the relicted lands in dispute or the lands in dispute that the government claims a reliction.

The only point here as you go through all of these pictures, you will see these flat, mud flats, bogging marsh lands that have no practical value except to the State of Utah in connection with the development of the mineral resources of the lake and other state programs on the lake.

And the typical case where there would be compelling needs to protect riparian or upland access to the lake or to confer “reliction lands” simply are not present in this case.

Justice Potter Stewart: May I ask about the Exhibit 6?

Mr. Richard L. Dewsnup: Yes.

Justice Potter Stewart: I think much of the land in dispute is now under water?

Mr. Richard L. Dewsnup: All of the land in dispute practically was under water at the time of the hearings.

Justice Potter Stewart: Well now, what are those pictures -- those I think you said to us, show some that is not -- some exposed lands in dispute.

Mr. Richard L. Dewsnup: This exhibit has 22 black and white pictures which show the land now in dispute.

Justice Potter Stewart: Exposed lands?

Mr. Richard L. Dewsnup: Yes.

Not all of the land but a good part of -- these were taken in the late Fall of 1972 (Voice Overlap).

Justice Potter Stewart: And the hearing was when.

Mr. Richard L. Dewsnup: February of 1973.

Justice Potter Stewart: And were they still exposed in 1973?

Mr. Richard L. Dewsnup: No.

By February of 1973, the lands were within about one tenth of a foot of being fully covered and within a few weeks after the hearing, they were fully covered.

Justice Potter Stewart: Then looking at these we’re not looking at the situation as it was at the time of hearing?

Mr. Richard L. Dewsnup: You will if you look at the colored pictures because they were taken three or four days before the hearing.

If you look at the black and white pictures, they were taken six months earlier and the lake was a couple of feet lower at that time and did expose many of the lands in dispute.

Justice William H. Rehnquist: Was that difference, seasonal or long run?

Mr. Richard L. Dewsnup: Well, it was a seasonal.

The lake is now climbing.

As a matter of fact, the lake as of the first of December was almost back to 4200.

It fell during the summer and as of December 1, it was 4199.35.

Justice Potter Stewart: And the consequence of that as to the lands in dispute being under water is more than ever around the world, is that right on December 1?

Mr. Richard L. Dewsnup: I think so, yes.

It just shows that we’ve taken a depth for a while during the summer part of these lands were exposed.

They’re virtually all water covered now.

They certainly will be within another couple of months.

Again, this is the seasonal fluctuation.

One of the -- moving on to another item and that is what I briefly alluded to before with regard to the stability of real estate titles, Special Master Fahey, put a good deal of emphasis on that.

The evidence showed that almost all of the lake bed in shorelands area had been leased by the State of Utah to American Oil Company and I’ve already indicated that there are processes to drill.

Now, whether oil and gas will be discovered there or not.

This illustrates a kind of problem if there had to be an accounting for the mineral ownership of the overlying land owners, the riparian owners, the United States and private parties will own down to the bed of the Great Salt Lake wherever that line might be.

If we had a boundary that was moving each day or each month or even each year, I still don’t know what the governments’ theory is as to how its boundary would move on a month to month basis or whether it is a January 1 to January 1.

But it would be almost an impossible prospect to try to calculate where your boundary was moving with respect to any underground oil pool by having a surface boundary running back and forth.

The State of Utah had control over mineral development there, the state might want to produce oil and gas only during the winter time when the water level was at the highest which would expand the oil pool and then not produce during the summer when the lake would withdraw.

I would like to note briefly that the government does have the burden of proof in this case even though it’s a defendant.

Utah made its proof.

This court concluded that the lake was inevitable.

Utah did it statehood get titled to the land now in dispute.

In this phase of the proceeding, the United States is trying to divest Utah of lands that this court has held in this case belonged to the State of Utah.

As such, if there are any evidentiary failings anywhere which prevent any more definitive findings than the Master has made, the United States has the burden of proving the elements of reliction.

Justice William H. Rehnquist: What’s your answer of the governments’ contention that there’s a presumption that a change in boundary occurred by reliction.

Mr. Richard L. Dewsnup: I think that’s wholly irrelevant.

The government makes that statement in its brief and it cites I think in Arizona Law Review article.

That law review article in turn cites a Colorado State case which simply says that if you have got a dispute, and the question is whether the water moves so rapidly, you have an evulsion or whether it’s an accretion that the accretion will be presumed unless an evulsion is proved.

But an evulsion has never been an issue in this case and I think that it's just wholly irrelevant to the Great Salt Lake.

A question was raised incidentally as to whether or not any other cases -- lake cases have arisen and Mr. Justice White was asking whether Salt Lake might have dried.

When United States against Holt State Bank, Mud Lake did go dry in Minnesota.

And there, the issue was not one of reliction or accretion -- it was not raised but the title was sustained in the state as against claim from upland patentees of the United States.

Justice Byron R. White: Mud lake was drained.

Mr. Richard L. Dewsnup: It was drained for the purpose of permanent agricultural pursuit.

A lot of title questions have risen on lakes but I’m not aware of any federal reliction-accretion questions.

I would like to mention before my time is fully at the state law aspect.

After this court decided Bonelli Cattle Company which incidentally was a year ago to date on December 17 last year.

The State of Utah had contended that state law applied since the effect of any decision here would be divesting the State of Utah of land that undeniably was owned by the state through a common law doctrine.

After Bonelli however, the State of Utah advised the Master that in light of Bonelli, we thought that we could not urge the Master to decide this case based on the state law.

But we left our foot in the door in the event that if for any reason, the Master should decide or this case should decide these unusual and unique features of the Great Salt Lake are reliction lands under federal rules of property law, then this would be an ideal case for borrowing the state law for a purpose of resolving the Great Salt Lake question because the Hardy Salt case made it abundantly clear what the state law is.

The State of Utah has managed and administered these lands in disputes in statehood.

The federal government had winkling that it even wanted to make a claim of these lands until 1961.

I think it was 1961.

In any event, the public programs and pursuits and interest of the State of Utah, the state owns a bed of the lake, the minerals and solution -- the minerals under the bed of the lake in part because of the litigation in this case.

And borrowing state law in this case would not necessarily set a (Inaudible) for borrowing state law in other similar cases because of the very unique --

Justice Potter Stewart: You said that the state owns the minerals beneath the bed.

Mr. Richard L. Dewsnup: Yes.

Justice Potter Stewart: Wasn't there some reservation in the United States of minerals?

If so, what was it?

Mr. Richard L. Dewsnup: There was a reservation in the deed that the United States gave to the State of Utah -- the State of Utah does not claim that by virtue of any conveyance in the United States.

When the state obtained the bed of the lake at statehood, by virtue of the equal footing doctrine, it got the bed and the minerals contained within the bed.

So this court adjudicated that in the early navigation route.

Justice Potter Stewart: So the reservation then is beneath.

Mr. Richard L. Dewsnup: Would have no effect.

They reserve minerals and something they didn’t known any part of.

I don’t want to leave the impression that I think that these lands would be reliction lands under federal law.

We think that they very clearly are not, as Special Master Fahey felt compelled to apply federal law in the light of Bonelli and he did.

We think that he decided that correctly.

He considered a great many exhibits and other evidence beyond what he has attached to his report and what the three minor corrections we discussed at the beginning.

The State of Utah respectfully requested at all other respects as Special Masters report conclusion, findings and decree be affirmed.

Thank you.

Chief Justice Warren E. Burger: Do you have anything further.

You have about two minutes Mr. Boggs.

Rebuttal of Danny Julian Boggs

Mr. Danny Julian Boggs: Yes, very briefly.

I would address myself to the question that Utah has raised with regard to the management that they say of these valuable mineral interest.

Now, it's interesting that on the one hand, they say that the riparian owners have -- that these lands aren’t very valuable that they have no interest in them.

And on the other hand, they wish to continue to own them in an essentially a proprietary capacity.

We believe that this implicates the doctrine that this court brought up in the Bonelli case which was, in Bonelli, the lands we believe were valuable.

They were good for recreation, for farming and so forth.

But they were not related to the purposes for which the state had been given the bed of the lake in the first place -- navigation and related purposes.

So that while Utah has a public interest in the sense that the state would like to own the property generally.

Just as in Bonelli, we feel that it does not have the kind of public benefit for navigation and other purposes that would make the Doctrine of Reliction apply.

Finally, we would point out that justice in the Tideland case where if oil lies half inside and half outside the three-mile limit there maybe a problem.

That was exactly the purpose of the Great Salt Lake lands Act.

If Utah accepts the act, then there will be a permanent, fixed boundary hopefully above the level of the lake.

But the fact that there was a problem requiring legislative solution that is Utah run the congress and wanted them to pass an act to keep them from being hurt when the lake declined, does not keep the Doctrine of Reliction from basically being applicable.

The prettly charge that we have all through here if you took that kind of a daily chart, annually chart, on seasonal and temporary movements, we believe that similar charts could be shown on many other bodies of water.

We believe that the basic principles of reliction which apply to give an ambulatory boundary rather than a fixed boundary, should apply here and that the solution is the solution that the congress gave by the passage of the Great Salt Lake lands Act.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is Submitted.

Featured:

Utah v. United States - Oral Argument

Thu, 23 Aug 2012 18:12:41 +0000

Case:

Utah v. United States

Media File:

31orig_19710426-argument.mp3

Related Transcript:

31orig_19710426-argument

Transcript:

Argument of Peter L. Strauss

Chief Justice Warren E. Burger: We'll hear arguments next in number 31 original, the State of Utah against the United States.

Mr. Strauss, you may proceed whenever you're ready.

Mr. Peter L. Strauss: Mr. Chief Justice and may it please the Court.

This is a case in this Court's original jurisdiction which was brought by the State of Utah under authority granted by the Congress to determine whether the United States or Utah prior to a quitclaim deed given by the United States, had title to the lands lying below the meander line of the Great Salt Lake which is a shallow and very salty body of water of some size lying wholly within the State of Utah in its northern portion.

After a variety of procedural rulings which I need not to remind the Court of.

The case was referred to Special Master, the Honorable J. Cullen Ganey to report to this Court on the issue of the title.

That issue has several aspects and then the proceedings immediately had had, he decided only one of those which is whether the Great Salt Lake was a navigable body of water on the day when Utah became a State, January 4, 1896.

And the parties have fully agreed that if the Great Salt Lake was not navigable on that day, then the United States continued its ownership of all the lands below the meander line and in that situation, further proceedings will eventually be required to determine if the market value of the lands which have subsequently been quickclaimed to Utah, so that Utah may pay that value for the quitclaim deed.

If on the other hand, the Great Salt Lake was navigable on that day in January 1896 then the lake that passed to Utah at that time, instant as part of the operation of the Principle of Equal Footing or Equality Among the States, then is no necessity for Utah to pay for lands which were within the boundaries of the lake as they existed on that day, save possibly for such lands as have been since relicted by the recession of the lake from its shores.

And the issues where the boundaries of the lake were on January 4, 1896 and whether the United States continued entitle or obtain title to such lands as might have relicted after that date, again, is an issue which is not before the Court at this time and which would have to be decided in a subsequent proceeding if the Court should rule for Utah in the present proceedings.

And I might just very briefly remark in that connection, that while the report of the special master is in some minor respect possibly seems to rule on the reliction issue on the one hand in conclusion of law 18 or in the proposed decree to state that if the lake was navigable, Utah obtained titles to all lands within the meander line, I think it is clear and that counsel for Utah will agree that the issues are as I have stated.

The question of reliction remains open for future decision and if the lake was navigable on January 4th, the lands which Utah took at that time were the lands which were under the lake's waters at that time and not the lands which might have happen to be within the meander line which had been drawn at some earlier time.

Justice Potter Stewart: Does this mean Mr. Strauss, that if Utah should prevail here that the proposed decree of the Special Master would not be proper?

Mr. Peter L. Strauss: Well, I think it's question of construction, indeed whether the decree is inconsistent.

If it is susceptible to a reading then it's inconsistent with what I've stated.

This Court has always followed the practice in past of inviting proposals for decree after original cases and I -- we have been assuming it would do so in this case then we can confront the question at that time.

Now, if I may turn to the issue which is here as I've said, the only issue is whether the Great Salt Lake was navigable on the day that Utah became a State.

There were hearings in Salt Lake City before the Master.

Both oral testimony and numerous documents were produced and on that basis, the Special Master has prepared a lengthy report in which he concludes that the lake is navigable.

And while we dispute that final conclusion, I should make it clear as I think our brief does that on the whole we acknowledge that the report is correct and the statement to the fact strictly speaking of the case we think the Master has done an excellent job and don't mean by arguing legal points here to suggest otherwise.

We accept all the strictly factual findings made in the report and have made exceptions only the findings of law and to two of the findings of fact which in our view, embody essentially mixed questions of law and of fact.

We contend that the lake was not navigable for two reasons.

The first is that the lake presents such obstacles to navigation in its natural state that it could never be used as a channel of useful commerce and trade by water without improvements of an unusual extent being made.

And the second is that even if the lake were navigable, in fact, it lacks any connection in interstate or foreign commerce or trade and for that reason, it should be found not navigable in law.

Taking up the question of navigability in fact again, the parties are largely in agreement of what the underlying law is.

The proper test was first stated by this Court in the Daniel Ball in 10 Wallace and the Court said there that waters are navigable, in fact, when they are used or are susceptible of being used in their ordinary condition as highways for commerce over which trade and travel are or maybe conducted in the customary mode of trade and travel on water.

And I think the Court will find that the principal dispute here is what that word susceptible means.

Perhaps, some argument about the extent to which improvements may occur without departing from the ordinary conditions of waters.

And what the Court meant when it said, that they must be useful as highways for commerce.

The master did not find that the Great Salt Lake was actually in use as a highway for commerce on January 4, 1896.

He found only that it was capable or susceptible of such use.

Not counting excursion trips which have been made he found the boating uses of the lake have been more of a private nature rather than by individual contractors for hire, that's finding of fact 51.

In finding of fact 52, he's found no evidence to show that there was ever any regularly scheduled freight or passenger service operated on the lake.

So, the question is whether it's reasonable to believe that this lake in its ordinary natural condition could become a highway of commerce.

The master's report on the whole is a discussion of that question.

Justice William J. Brennan: Did he find what the ordinary and natural condition was, Mr. Strauss, for finding on that?

Mr. Peter L. Strauss: I -- he found that on that date, the lake was approximately 77 miles long and taking its greatest length about 33 miles wide and exposed approximately 100 and -- excuse me, 15,000 square miles of water and to the sun.

That its elevation, there is some confusion, I think there's a typographical error at one point but I think it's clear that he found that its elevation at statehood was 4,201 feet which would give it, at its greatest depth, the depth of 30 feet, an average depth of 13 feet.

We have submitted to the clerk and to counsel and asked him to distribute to you a small map of the lake to which I'll be referring later on in the --

Justice William J. Brennan: What I was really getting at it is what is meant by body of water in its natural state or condition as applied to this lake?

Mr. Peter L. Strauss: Oh.

Well basically, perhaps the simplest way to answer it would be to refer to this Court's decision in the Montello which involved the Fox River.

The Fox River was a body river which had water -- which had existed in nature.

Would transport boats of two-and-a-half foot depths down it for a considerable distance, although, there was some rapids and riffles to be gone through.

It had been improved by the time a case got to this Court, questioning whether it was a navigable waterway or not.

And in deciding whether it was a navigable waterway, the Court said, “We will not concern ourselves with those improvements, with those canals, ditches, locks and so forth, but rather with the river as it was when man found it, unimproved, unexcavated, entrenched” and the issue was whether in those circumstances, it could carry trade and commerce and the Court found that these boats of two-and-a-half foot depths carrying substantial loads of lumber and other goods, in fact, frequently ran the river engaging in commerce of a very substantial sort on it.

And so --

Justice William O. Douglas: A lot of the or to say a lot pf -- there are there few methods of I gather of traveling in very shallow waters and I remember down the everglades with these aired propel boats?

Mr. Peter L. Strauss: That's right, Mr. Justice Douglas.

Thankfully, again, 1896 perhaps is helpful to us in that respect that it's quite clear from the cases that the question of navigation is with the means of navigation which were available at the time and I don't believe that an airboat would have been available in 1896.

Justice William O. Douglas: That's pretty well settled, isn't it?

Mr. Peter L. Strauss: I believe it is.

I think it may also be -- I think another appropriate response to that of course one has today amphibious trucks of enormous dimension and hovercraft and the like.

Virtually no case which this Court has decided would not involve a body of water which couldn't be navigated by one or another of those crafts.

The United States versus Oregon, for example, the waters in those lakes were in some places only inches deep.

Quite plainly, one of these airboats could've navigated those waters as well.

Justice Potter Stewart: Of course here, the master very clearly found that as of the date of statehood in January 1896 the lake was physically capable of being used in its ordinary condition as a highway for floating and affording passage to watercraft in the manner over which trade and travel was or might be conducted in the customary modes of travel on water at that time.

Mr. Peter L. Strauss: That's correct, he did.

Justice Potter Stewart: And he went on to say, that the areas of the lake didn't have a depths sufficient for that purpose, was -- were not narrow or short channels but were several miles wide extending substantially through the length and width of the lake and covered an area of more than a thousand square miles.

Mr. Peter L. Strauss: That's right.

Justice Potter Stewart: That a vessel could travel from the one tip of the lake to the whole length of it, virtually on a straight line.

Mr. Peter L. Strauss: I think it might be appropriate at this time to refer to this map which I've asked the Clerk to distribute.

The think black outline, the thick line running around the periphery of the lake is the 4,200 foot line, it's a contour map, is approximately, slightly less, but approximately with the level that the lake was at statehood.

The thick blue line is approximately the level that the state, that the lake is today, again, somewhat less.

The white areas then, between the blue line and the black line are areas which have been exposed.

There is a -- since the time of statehood, there is a five-foot vertical difference involved between those two lines.

So that I think one can say that the waters to which the master was referring in the passage which you have read are the waters within the blue line and it can be seen that indeed those waters do run virtually from the northern tip of the lake, to virtually the southern tip of the lake.

I think it can also be seen, however, that along the eastern and western shores of the lake as the master also specifically found, in particular behind Stansbury Island and Carrington Island in the lower left, and the whole of the Bear River Bay and then Farmington Bay along the right, that there is a very wide expanse of land which has been exposed.

Now, to give you some notion of the extent of that land while the vertical scale here is five feet between the lines.

The horizontal scale is eight feet to the inch or each one eighth of an inch represents one mile in horizontal dimension.

I think the Court will see that there are considerable extents of water exposed -- of land exposed around the edge, where that horizontal scale is a quarter of an inch or greater.

Or in other words, where something on the order of -- takes something on the order of only a two-foot difference in depth over the course of a mile's horizontal distance and this is basically where the argument in the case rests.

It's true, one can go from one carefully selected point on the lake to another carefully selected point on the lake, but this is a lake and not a river.

With a river, one is only concerned with traveling the length of the river.

Crossing the river is never a very great concern so far as navigability is -- when navigability is an issue and has never been at issue in this Court's cases.

But we don't think a lake is very useful for commerce, when you can't get out of the lake to any place else and when you can only visit one or two places upon its shores, that in essence is the contention of the United States here.

Justice Potter Stewart: Does it have to be very useful in commerce in order to be navigable?

Mr. Peter L. Strauss: It has to be substantially useful.

There has to be a practical and permanent capacity for commerce.

Justice Potter Stewart: That's little different from being very useful for commerce, isn't it?

Mr. Peter L. Strauss: I think it comes well within the bounds of the United States' argument case.

Justice Potter Stewart: Very well, very well.

Mr. Peter L. Strauss: In its natural condition, there is a capacity for commerce only between that point on the southern shore, that point of the northern tip, and a few of the islands are now in a lake, an enormous body of water of this sort, it seems to us that that is not sufficient to establish navigability.

Of course, any boat could float on the waters of this lake if one could -- wants to get there.

But issue onto this Court's cases is whether anyone would have wished to put a boat there for commercial purposes and the cases that the Court has dealt with previously with some minor exceptions of the prior Utah decision is one of them.

The Court has been concerned with the great web of rivers and lakes which makes up the Mississippi Valley and the watershed of the Great Lakes.

And there really has been no question but that if a body of water connected into those bodies it would have been useful and would have been used.

Now, there have been decisions such as the prior Utah decision which involved segments of water, disconnected segments of water, and considered whether or not they were navigable, but I should point out there, that those bodies of water were in remote and unexplored situations, settlements had not grown up.

In essence, commercial use had not begun and the Court was very careful in those cases to say, that it was reaching its conclusion about navigability in part because the non-use of the waterway for commercial purposes could be explained by the absence of people, by the absence of development.

We don't have any such explanation here.

There were 200,000 people in the immediate vicinity of this lake on the day of statehood.

There are 500,000 people in the immediate vicinity of this lake today and yet it is not used for commerce.

It cannot be used for commerce without the improvements of such a massive scope as to make it clear that in its natural and ordinary conditions it is not susceptible of commercial use.

In these areas, we've been talking about --

Justice William O. Douglas: It's been heavily polluted?

Mr. Peter L. Strauss: Hmm?

Justice William O. Douglas: It is being heavily polluted, isn't it?

Mr. Peter L. Strauss: It is being heavily polluted, I certainly agree with that.

Justice William J. Brennan: Well, Mr. Strauss, this is on the premise, I suppose of what findings 45 which deal with harvesting of brine shrimp and 67 would still deal with the chemical compounds on the commercial that goes on in that connection.

Those do not show any commercial uses?

Those show commercial use in the -- those show commercial use in the same sense as one commercially uses a mine or a forest.

I don't think they show a commercial use in the transportation sense.

No.

Chief Justice Warren E. Burger: Does it have to be transportation?

Mr. Peter L. Strauss: I believe so.

Chief Justice Warren E. Burger: Where do we find that?

Mr. Peter L. Strauss: I believe it comes from the Court's decision in the Jonas Chief and the Daniel Ball.

Chief Justice Warren E. Burger: It's a decision for others, for hire, that's really what you are arguing isn't it?

Mr. Peter L. Strauss: That is essentially.

Chief Justice Warren E. Burger: As a common carrier?

Mr. Peter L. Strauss: I don't -- I would not say that -- I don't think that I would want to or that I have to take that argument to a complete, to a complete extreme, but I do think again, that on a historical view, these lands, or these waters rather were important because they provided a means for goods and people to get from place to place.

In way which would otherwise not be -- there would otherwise be no convenient way to do it.

The Great Salt Lake provides no such facility.

Now, the Court in --

Justice Byron R. White: May I get this very clear?

Assume an island in the lake that had a very valuable mineral deposit on it --

Mr. Peter L. Strauss: Right.

Justice Byron R. White: -- and the only way to get to the island was by boat.

Mr. Peter L. Strauss: Right.

Justice Byron R. White: The only way to get the minerals out was by boat --

Mr. Peter L. Strauss: Right.

Justice Byron R. White: -- and the lake was perfectly adequate to sustain that kind of transportation.

The minerals came from the island, onto the barge, straight to an interstate railroad car on the beach.

Is that navigability?

Mr. Peter L. Strauss: I think not.

Justice Byron R. White: Well, why not?

Mr. Peter L. Strauss: Well, I would have to take it down to -- I suppose, what may be a somewhat more prosaic, somewhat more prosaic description one may also imagine an island which is being used for farming purposes as there are in this lake, which is surrounded by a body of water, which is not navigable.

Let us say, if you are thinking about boats passing from the top of the river on down to some port in the bottom part, and yet, the family that farms the island has to get out there and they have a boat to do it and they row out and they row back.

The river to them is this --

Justice William J. Brennan: They bring their products out and back.

Mr. Peter L. Strauss: And bring their products out and back, of course they do.

Justice Byron R. White: Well, isn't that a -- that certainly is a commercial use of the water and it's being used for transportation of goods being taken to market?

Mr. Peter L. Strauss: It is being used for transportation of goods being taken to market, but I do feel that the Court's cases have been concerned with commercial use in a broader sense as in -- it might so well as, be a marsh, be a swamp, the one of these areas which is passable only by airboat.

The Court has in the past dealt with situations of such marginal navigability and it seems to me that as in the Utah case they have always been careful to be sure that such uses were taken as evidence and that the lake might be susceptible of commercial use but one looked to see whether ultimately it would become a public highway not a private road.

Justice Byron R. White: What if the -- what about a river that's used as a highway for getting logs to market?

Does that make it navigable?

Mr. Peter L. Strauss: I'm not entirely sure of it but I'm -- I will say that they are -- there are certainly are cases which have held that that was one use that showed that it --

Justice Byron R. White: If there is a valuable stand that timber on this island in the lake and they floated the logs over, it would be alright?

Mr. Peter L. Strauss: No.

No, it -- there's a very fine distinction, but it really comes to the point that the individual is -- has a choice about what means of transportation is going to employ and here is a body of water, and he chooses the body of water because of its convenient.

In United States versus Holt State Bank for example, one had a lake three to six feet deep and the Court quite carefully observed, well, there weren't many people who use this lake but really waterways were the established, the most convenient means of going from place to place.

It wasn't that the waterway was an obstacle naturally in this path which somehow had to be surmounted.

Of course, if the fact that the waterway is there and has to be gotten passed in order to mine the island or do the farming is sufficient to establish that it's navigable.

Why then, we are out of Court and that the report of the master ought to be affirmed.

Justice William J. Brennan: You said Mr. Strauss, I think earlier.

There has to be a proof from a broader use, in what sense were you using the word “broader”?

Mr. Peter L. Strauss: A substantial or permanent commercial use for the transportation of passengers and goods.

Justice William J. Brennan: Is this a matter of degree or a matter of what, general variety of uses or what?

Mr. Peter L. Strauss: To be sure, it's a matter of degree, I believe.

Justice William J. Brennan: Of degree?

Mr. Peter L. Strauss: That's right.

Again, I would say that in this particular circumstance, the fact that it is a lake and not a river seems to us of some significance that one has to deal with the whole of the circumference and not simply a matter of length of travel.

There is another issue of degree that is involved here and that is the question of dredging harbors or building piers.

One couldn't deny that in every harbor there must be some dredging done, there some piers built, but in substantial areas of the shore of this lake, a pier would have to be miles long just to be sure of having foot of water at one end and dry land at the other end.

And when it comes to building improvements of that kind, I think, one can say that the waterway in its natural condition is not usable.

Chief Justice Warren E. Burger: Mr. Strauss, the Great Lakes are lakes, they're considered rather good for navigation?

Mr. Peter L. Strauss: And they are.

They have cities employing millions.

They have countless boats flying their shores.

United States sought to make an offer of proof in the proceedings before the master of commerce on other inland land locked lakes in this country that offer of proof was refused.

Chief Justice Warren E. Burger: But wouldn't the great lakes be navigable even if they were not in fact a boat being used on them?

Mr. Peter L. Strauss: Of course.

Chief Justice Warren E. Burger: Because it's susceptible, capable of bearing navigation, isn't that the test?

Mr. Peter L. Strauss: It is susceptible and capable of bearing navigation, but in the sense that one may expect that navigation to be there that has some permanent and substantial use as this Court has put it.

The Great Lakes miles, excuse me, the Great Lakes' shores, do not change by one or two miles every season.

They do not change by four or five miles over the course of eight years in time as the lakes of the Great Salt Lake do.

It is possible to build permanent improvements there of a very much lesser extent that makes enables one to use it.

There is a much greater extent of shore line, much greater distance that one can go.

Justice Potter Stewart: Mr. Strauss, do you question the accuracy of the master's findings 48 and 49 on pages 42 and 43 of his report.

Mr. Peter L. Strauss: We have not accepted it --

Justice Potter Stewart: Showing a --

Mr. Peter L. Strauss: -- and so we do not.

Justice Potter Stewart: Showing more than a dozen or so modes or uses of water transportation on the lake?

Mr. Peter L. Strauss: No, we do explain -- we do explain those uses in the brief before the Special Master which is now before this Court and I think the Court will find that many of them occurred during periods of time when the lake was much higher than it is now.

But of course --

Justice Potter Stewart: Well, it was much higher than it is now, in 1896 when it became a State and that's a critical time, isn't it?

Mr. Peter L. Strauss: It was much higher than it was in 1896.

Justice Potter Stewart: Significantly higher in 1896 than it is now.

Mr. Peter L. Strauss: That's right.

Excuse me, I misspoke.

The boats were used at time when it was higher than it was in 1896, is what I meant to say.

Excuse me.

And we do not question that.

Justice Potter Stewart: You have a testimony of that woman, Zela somebody, who was born before the statehood, and grew up on Antelope Island until she was 12 years old.

Mr. Peter L. Strauss: That's right.

Justice Potter Stewart: And of course, I suppose people couldn't have lived and worked on that Antelope Island unless the lake were navigable, could they?

Mr. Peter L. Strauss: They couldn't have lived and worked on Antelope Island unless they could get from the island to the shores.

The fact that they went through --

Justice Potter Stewart: With their products.

Mr. Peter L. Strauss: With their products, that's right.

Justice Potter Stewart: With their livestock.

Mr. Peter L. Strauss: With their livestock.

It may be that what we are suggesting in some respects to go back to the Utah case and the prior Utah case, the Court held that part of the Colorado River was navigable and part of the Colorado was not navigable.

It is perhaps a harder operation to do with a lake than it is to do with a river, but it seems to us that the quality of the shores of this lake along the eastern side, along the western side, in Bear River Bay, there are those areas which are so shallow and have been so shallow for such a long period of time, that one may say, at least there that there is no susceptibility of use for navigation in the natural sense.

I would like to reserve the rest of my time for rebuttal, so I'll leave our second argument to the --

Chief Justice Warren E. Burger: Very well.

Mr. Jensen.

Argument of Dallin W. Jensen

Mr. Dallin W. Jensen: Mr. Chief Justice and may it please the Court.

First, I would like to state that Utah does agree that the issue of reliction is not before the Court at this time, that the question is one of navigability.

Utah further agrees that in order for the Great Salt Lake to be found navigable in January 4, 1896, it must have been navigable in its natural and ordinary condition.

We submit that the master so found.

We disagree with the United States in the interpretation of this language of susceptibility.

We believe it to be clear on the Court's language in United States versus Holt State Bank, United States versus Utah, that actual use at statehood is not required.

It is a capacity for use.

We believe, we showed a great deal more than a naked physical capacity, but we believe that that is all that was necessary.

That is does the body of water have sufficient length, width, depth.

Is it dependable?

Is it there year in, year out?

All seasons of the year?

Could it be used if the need arises?

In fact in the Holt State Bank case, the evidence was that Mud Lake as it was called, only enjoined -- enjoyed a very limited historical use and at the time of trial was drained and dry.

It had absolutely no future.

Consequently, any discussion as to what the future may hold as far as a build up of a commerce with boats going everywhere on the lake at various points is simply irrelevant.

Title either vested on January 4, 1896 in Utah or it didn't.

It has been floating, waiting for experience to show what the traffic will be on the lake.

This is why the Court has used and correctly so the very definitive test of susceptibility.

Secondly, we believe that of course, the actual uses demonstrate a susceptibility very well.

The master found a variety of uses.

He found the great many different kinds of boats that have been used on the lake both before and after statehood.

It's true, some were used for pleasure, but it's also true, some were used in business.

And again in United States versus Utah, this Court said that no matter what they use, it is still relevant to show the susceptibility.

The United States in the earlier case made the very argument, it's making here that well too many of these uses are private in nature as opposed to being paid for.

This Court rejected that argument.

Turning to the argument that there is no access to the like, that it is too difficult to get to, so that the otherwise usable capacity is made useless.

I would first refer to the map which counsel has submitted to the Court and point out that the Special Master found that Antelope Island had been continuously inhabited since 1848 and the witness which was spoken of earlier, Zela Walker Manning testified that she was born on that island in the early 1890's, lived there and that her testimony was that boats were used to transport livestock, household supplies, grain, farm equipment.

This is across the very area which the United States says its too shallow to navigate and that you can't get your boat to the shore or off in the shore.

The same as true of Freemont Island.

It has sustained a viable livestock industry.

Further as has already been noted, there are a number of places on the lake where the bed is deep.

We don't deny that there some pretty flat shores there and that there are some bogs, but again, we don't believe unlimited capacity is a requirement that you have to be able to get in at every spot.

Again, in United States versus Utah, this Court observed that the 65 miles of the Colorado River which it found to be navigable flowed through Rock Canyons for a large extent that had walls from 600 to 1,200 feet in height.

In the Mud Lake case, the Court concluded that that lake was navigable even though sand bars prevented the unrestricted use of the lake and here, the Special Master found that the shallow waters which are around the shore could easily be avoided by keeping into the navigable channels which he had found extended substantially throughout the length and width of the lake.

The point is that if someone needs to build a pier or build a harbor, there are some good spots to build them.

This is not the type of artificial construction which takes a case out of the navigability for title purposes and puts it under the Commerce Clause definition.

We're not required to dredge the channel, do a lot of improvements, there is just simply harbor access.

The Master found that there are very few natural harbors in the world and the one witness, in fact, the only witness who was an expert in navigation Mr. Thomas Lundy testified that he was familiar with many of the navigable waters of the United States as well as other parts of the world and was only aware of one natural harbor.

Mr. Lundy was associated on the Great Salt Lake for a period of two years, where he was involved in the design, construction and operation of a fleet of 39 boats and barges that were used to place a causeway fill across the lake.

And as a part of that project, it was necessary to construct a harbor on the Westside of the Promontory Mountains.

He testified that rather than being an impediment, that the lake was unusually susceptible in this regard because it was easy, it was inexpensive to construct the harbor because of the clay sediments which made up the bed, the lack of bedrock that they -- I think that he mentioned that the harbor was 400 by 1,500 feet.

He further testified that they had absolutely no maintenance problems.

The reason for this he said, is that the lake has no currents, so you don't the sediments moving back in like you do on most river systems and it is like you do in the harbors in the San Francisco Bay.

Again on access, the Special Master found that a number of piers and docking facilities existed at various points on the southern shore and on the eastern shore of the lake.

Justice Potter Stewart: Any at the time of statehood?

Mr. Dallin W. Jensen: Prior to statehood.

Justice Potter Stewart: Prior to statehood.

Mr. Dallin W. Jensen: Now, Saltair was built in 1893.

The evidence specifically was that it was used for commercial or excursions, pleasure boats but commercial excursions and that at times, the livestock on Antelope Island were shipped to the pier at Saltair.

Justice Potter Stewart: Is Saltair where they use to have the amusement park right in the --

Mr. Dallin W. Jensen: Yes, Saltair is the old pavilion where they have the dance hall out over the lake and where the lake probably got primarily known for its ability for people to get in and float around.

I think it came from -- its fame from that came from Saltair which was built at that time.

Justice Potter Stewart: Is anybody -- can anybody swim in the lake anymore?

Mr. Dallin W. Jensen: Yes, there are three beaches on the lake now.

They are open.

They operate again commercial excursions out on the lake.

They are swimming in it.

The State park, they're building a state park on Antelope Island on the north tip and in fact is constructing a 200 boat marina there.

So, brine shrimp industry, though not to compare with the commerce on the Great Lakes, it's there, the livestock industry is still there.

Scientific investigation is going on.

There's evidence in the record that there are minerals west of the lake, under the possibility of oil and gas under the lake, Minerals in the brines and solution, the waterfall areas.

So to characterize the lake as a desolate forlorn pond of water just simply is not so.

We believe the lake does have a great future, in fact that it's just moving into that phase.

We think the pleasure boating and the access that will be needed for that will is very important.

The Government's argument that the lake maybe partially navigable; this is the first time we've heard it.

It was not advanced below.

It's not part of the master's report.

It was never presented to him and we submit the lake is either navigable or it isn't and the fact that has some shallow areas does not mean that you carve out those portions.

It just means that they may be somewhat of an impediment but they're not great enough to destroy the navigable capacity of the lake.

Justice John M. Harlan: You mean that by reason of the procedural aspect now, we are bound to hold that the lake is fully navigable or is -- and is not partially navigable?

Mr. Dallin W. Jensen: It would seem to us that that is so -- there was never an issue on this.

There was no evidence toward it to a partial navigability as opposed to non -- as to full navigability and we, of course, submit that it's fully navigable.

Chief Justice Warren E. Burger: Well, I suppose the Atlantic Ocean is not navigable in certain spots when you get near the shore?

Mr. Dallin W. Jensen: I would think so, you'd get to the rocky cliffs and so forth.

That's why we say we don't believe you have to have unlimited access to a body of water to make it navigable, you can get a boat in at every spot.

It simply has to be useful.

I think this is a term the Court has used in practical and that we think that lake lends itself to that.

Justice Potter Stewart: What's the draft of the ship like the Queen Mary, do you know, 30 feet?

Mr. Dallin W. Jensen: Probably, the barges which were used to place the causeway fill had the dimensions of 250 feet in length, 50 feet in width, had a carrying capacity equivalent to 90 railroad cars and drew twelve-and-a-half feet of water on the lake.

Justice Potter Stewart: Twelve-and-a-half.

Mr. Dallin W. Jensen: Of course --

Justice Potter Stewart: The depth at the time of the statehood it was 30 feet, wasn't it?

Mr. Dallin W. Jensen: Right.

Justice Potter Stewart: From one end of the lake to the other of great width of channel that was (Voice Overlap)

Mr. Dallin W. Jensen: Yes, the Master said they extended a substantially throughout the length and the width of the lake.

Justice Potter Stewart: Right.

What I mean wide channels as well?

Mr. Dallin W. Jensen: Yes.

Yes, the center channel is very wide; many, many miles wide.

It's not a channel like a river.

It's much, much wider than that.

Justice Byron R. White: Is there a different -- do you suggest there is a different rule with respect to navigability where the issue is state ownership of the river bottom and the lake bottom and where the issue is navigability for the purposes of congressional power?

Mr. Dallin W. Jensen: Yes, there's no question about that.

Justice Byron R. White: There is a different rule?

Mr. Dallin W. Jensen: You bet.

Justice Byron R. White: And what?

Mr. Dallin W. Jensen: The Commerce Clause definition is that, if it's either navigable or can be made navigable that is you could -- you got a river and that may be it's got a lot of sand bars in it that you can take your dredges in and clean them out well, you then have got a navigable channel, but the navigability for title purposes is natural, ordinary conditions, that is the language of this Court.

And we don't contend for the more generous test -- never have and the master didn't find, finding of fact 31 says, in its ordinary condition and in his preface to the findings, he said it must be navigable in its natural state and future improvements are not to be taken into account.

Justice Byron R. White: What is the case that's closest to this for title purpose?

Mr. Dallin W. Jensen: I think there are two very close, the Mud Lake case or the Holt State Bank case is a lake and it did not have anywhere near the size of the Great Salt Lake and --

Justice Potter Stewart: Well, the former Utah cases --

Mr. Dallin W. Jensen: In the former Utah case, U.S. v. Utah --

Justice Potter Stewart: Well, it was the river, you rather like the law expressed in that case, don't you?

Mr. Dallin W. Jensen: Yes, on the Government's interstate argument, we believe that the former Utah case is conclusive on it.

Justice Potter Stewart: Well, as well as the question of navigability in fact in that case even though was the river or parts of the rivers?

Mr. Dallin W. Jensen: Right, the -- it was undisputed that the parts of the Colorado and the Green Rivers which were found to be navigable were navigable only intrastate, only within the boundaries of the state of Utah, but --

Justice Potter Stewart: And that there were many impediments to that case?

Mr. Dallin W. Jensen: Many impediments, flooding at times caused problems.

There was debris, ice during times of the year and the most serious impediment, the shifting sand bars that these would cause the water to spread out, loose its depths and in that case, the evidence was that a good portion of the year, the water was only three feet deep, much, much less deep than the waters of the Great Salt Lake but still navigable.

And that again, the shifting sand bars caused the channel to divide and shift around.

But nevertheless, the water is found to be navigable.

In fact and again as I was saying, the Court said that under the equal footing doctrine, because they were navigable, in fact, they were Utah's property and it was clear that the Court was not announcing or applying a new concept or a new doctrine.

This principle was already well-established by prior decisions of this Court.

Utah further suggests on the question of interstate navigability, the argument of the United States on interstate navigability that whatever doubts may have existed before they were removed by the passage of the Submerged Lands Act, that the legislative history of that Act makes it very clear, that Congress was confirming and ratifying title in the states to inland waters which were intrastate and which were navigable in fact.

So in summary, Utah would submit that the report, the findings of the Special Master are fully supported by the facts of the case that he did apply the correct rules of law, correct rationale of prior decisions of this Court and that his report and decree should be sustained.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Jensen.

Mr. Strauss, you have one minute left.

Rebuttal of Peter L. Strauss

Mr. Peter L. Strauss: I would only say very briefly while it's evident that this is the best of close case for United States.

Still, I think, the Great Salt Lake is distinguishable.

It's a matter of proportion in the Atlantic Ocean or some similar systems.

This is lake which is only 80 miles in its maximum dimension and to use it in most places you must build a pier or dig a channel that is mile-and-a-half or two-and-a-half miles long then I suggest that that is sufficient to show that the lake is not useful in its ordinary condition as a highway of commerce.

The passage in the Utah case which to which counsel referred, which did make reference to private uses went on to say, that it did so because conditions of exploration and settlement explain the infrequency or limited nature of the use and now, the Great Salt Lake has no such excuse.

It was well settled at the time.

It is well settled now.

It has never had any permanent use for the transportation of goods or passengers from place to place except in those few situations where it was rendered absolutely necessary by the geography of the situation.

Transportation on the lake has never been a matter of choice.

If I may just one technical matter, if it please the Court, my search of the records did reveal that you have no copy of the transcript.

This is our copy of the transcript which I believe is unmarked.

Chief Justice Warren E. Burger: Well, if you, kindly lodge with the clerk.

We'll see that it's returned to you in due course if you wish.

Mr. Peter L. Strauss: Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Strauss.

Thank you, Mr. Jensen.

The case is submitted.

Featured:

U.S. v. District Court For Eagle County - Oral Argument

Thu, 23 Aug 2012 18:31:30 +0000

Case:

U.S. v. District Court For Eagle County

Media File:

87_19710302-argument.mp3

Related Transcript:

87_19710302-argument

Transcript:

Argument of Walter Kiechel, Jr.

Chief Justice Warren E. Burger: -- in United States against District Court of Eagle County, Colorado.

Mr. Kiechel, you may proceed whenever you're ready.

Mr. Walter Kiechel, Jr.: Mr. Chief Justice and may it please the Court.

This case comes from the Supreme Court of Colorado and presents two questions important to the proper administration and conservation of the water resources of Colorado and nationally.

First, whether Congress by enacting so called McCarran Amendment codified at 43, United States Codes 666 intended to consent to a suit against the United States for adjudication of its water rights in one of 70 water districts of the State of Colorado.

And secondly, whether in the absence of any expressly stated intent to subject ?reserved rights of the United States? to state court adjudication.

such intent can be implied.

I plan to discuss preliminary and briefly the nature of water adjudications of the west and specifically that proceeding here involved in Colorado then address the threshold question of the application or the rule in this Court's opinion in Dugan v. Rank in 372 U.S. holding that the consent applied only to general adjudications then discussed the legislative history of the consent statute and lastly, the nature and extent of reserve water rights and the ability of the state courts of Colorado to adjudicate them.

Historically, water rights were judicially determined in the western states by flat Title action initiated by one or more water users.

The other claimants to water rights on the stream system were joined.

Each party affirmatively presented its claim and contested the claims of others.

This proceeding resulted in a determination by quantity and priority of the rights of the parties inter se say that has developed in most to the western states, statutory modification of this procedure or by the state engineer or some other official initiates the proceeding and presents the evidence in the first instance, but it instance remains the same.

A determination by the Court of the rights of all the parties on the Supreme System inter se say.

This proceeding was initiated in 1967 in the Water District 37 which at that time was one of 70 water districts of the State of Colorado.

These districts were established on water shed lines.

Water District 37, being the water shed of the Eagle River, the Eagle River being a tributary of the Colorado River.

This was a supplemental proceeding, there being a number of adjudications in Water District 37 over the years.

First one, over eight years ago and the last one as recently as in 1966, the year before the instant proceeding was initiated.

Now, a significant attribute of a supplemental proceeding under Colorado law is that the earliest priority decreed in such an adjudication must be later than the last priory date decreed in the preceding adjudication.

Or stated otherwise, all rights awarded in a new supplemental proceeding such as one before the Court are necessarily junior by operation of Colorado law to those decreed in previous adjudications.

This supplemental proceeding was initiated by the Colorado River Water Conservation District which adds before adjudication a decree of certain of its claimed water rights.

Other claimants appeared and the Conservation District sought to join the United States as a partner.

The United States moved to have itself dismissed, asserting among other things that this was not the type of proceeding that the Congress has consented.

The motion was denied by the District Court of Colorado for Eagle County and the United States sought a writ from the Supreme Court of Colorado to prohibit the District Court from asserting jurisdiction over it.

The Supreme Court of Colorado determined that the motion to dismiss was properly denied and rendered an extensive opinion in which have held first that Congress had intended to include the water adjudication procedure of Colorado among the suits to which it had consented.

Secondly, the Colorado Supreme Court held that notwithstanding this Court's interpretation of the consent statute in Dugan v. Rank that the statute permits joinder of the United States in a supplemental proceeding involving only a tributary water shed.

With respect to Reserved Water Rights of the United States, the Colorado Supreme Court strongly suggested that the United States had no water rights in Colorado except those arising under state law.

The Court said that the decisions of this Court, including Arizona v. California in 373, U.S. were not determinative.

Indeed, the Colorado Supreme Court said that the only decision that might be determinative of this question was one of its own and that if the Colorado Supreme Court determined that the United States has reserved rights in Colorado streams then that decision would or that determination would require the overruling of its previous decision.

And in that previous decision upon which the Colorado Supreme Court relies and it refers to in the course of its opinion, the Colorado Supreme Court had said that by admitting Colorado into the Union with a provision in its Constitution declaring on appropriated waters within the state to be the property of and subject to appropriation by the people of the state, that the United States lost any right to assert water rights in Colorado except those required by appropriation subject to a state law.

And in its ultimate holding here for review, the Colorado Supreme Court held that whatever water rights the United States has, such rights, including reserved rights, can be recognized and adequately adjudicated by the Colorado District Court.

Justice John M. Harlan: The court did not take to decide whether or not the United States entered in not ? rights?

Mr. Walter Kiechel, Jr.: That is correct he did not.

Justice John M. Harlan: And is that question necessary to reach in this case?

Mr. Walter Kiechel, Jr.: Yes Your Honor if the -- with respect to the congressional intent of the application of the consent statute, it is necessary to decide whether those rights were included within the waiver of the sovereign immunity that Congress enacted in the McCarran Amendment.

Justice John M. Harlan: As a matter of construction of the McCarran Amendment?

Mr. Walter Kiechel, Jr.: Yes, Your Honor and --

Justice William O. Douglas: Some of these water rights are rights of appropriation, are they not?

Mr. Walter Kiechel, Jr.: Yes Mr. Justice Douglas that's quite correct.

Justice William O. Douglas: United States is an appropriator?

Mr. Walter Kiechel, Jr.: It is indeed.

Justice William O. Douglas: Roughly what percentage every --

Mr. Walter Kiechel, Jr.: I wouldn't know the percentage.

The record of the case shows that many of the water rights of the United States arise on national forest and those are claimed as reserved rights.

Others are appropriative rights by other agencies of the federal government.

I suppose that the great majority of the water rights claimed by the United States in Water District 37 are reserved rights.

Justice William O. Douglas: But insofar as the statute is concerned (a) (2) would seem to explicitly cover rights obtaining by appropriation, wouldn't it?

Mr. Walter Kiechel, Jr.: Yes indeed.

That is our position that the statute was intended to cover the rights acquired under state law, that was the specification of the terms of the statute.

Justice William O. Douglas: But I understand that you're saying that even so the state court has no jurisdiction?

Mr. Walter Kiechel, Jr.: We say that because with respect to rights acquired under state law, this is not a general adjudication in the terms of this Court's rule in Dugan v. Rank.

In that case, Your Honor please, it involved part of the San Joaquin River of California and there the Court of Appeals for the Ninth Circuit had dismissed the United States as a party, United States having been joined there under the authority of the consent statute, 43 U.S. 666.

Justice William O. Douglas: And that's just a matter of who is necessary party?

Mr. Walter Kiechel, Jr.: No sir, it's -- the matter of the scope of the proceeding to which Congress consented that United States be joined.

The Ninth Circuit had said, I'm quoting from this Court's opinion 372, U.S. on 618, 617 pardon me, ?This Court stated that we go directly to the question of joinder of the United States as a party.

We agree with the Court of Appeals on this issue, and therefore, do not consider the contention at length.?

Now, the Court of Appeals had said that the type of suit Congress had in mind was a quasi public proceeding, known as a general adjudication of a stream system, one and which the rights of all claimants on a stream system has between themselves are ascertained and officially stated.

And --

Justice Byron R. White: What's wrong with this particular proceeding under that view?

Mr. Walter Kiechel, Jr.: It is --

Justice Byron R. White: Do you think it is because it concerns only the Eagle River?

Mr. Walter Kiechel, Jr.: In part Your Honor; it's neither a river system or a general adjudication geographically nor is it a general adjudication with respect to having all parties before the Court.

Justice Byron R. White: Let's assume that the Eagle River was a river system, but you don't think it is.

Mr. Walter Kiechel, Jr.: Not within the contemplation of the consent statute.

Justice Byron R. White: Yes, but even with respect to the Eagle River, do you think this is not a general adjudication?

Mr. Walter Kiechel, Jr.: No, Your Honor Mr. Justice White that the reason that I say it is not a general adjudication is that not all of the parties are before the Court having rights.

Further more, the Colorado law which bars the assertion and decree does not just bar the assertion, but it bars the decree of any earlier rights.

That is the rights earlier than the supplemental proceeding precludes a general adjudication.

It prevents a party joined in the supplemental proceeding in 1967 from asserting its priory of 1905 as many of the rights of the United States are in this case.

Justice Byron R. White: Let's just put aside reserved rights.

Let's just talk about United States' appropriative rights in the Eagle River.

Mr. Walter Kiechel, Jr.: Yes, Your Honor.

Justice Byron R. White: Would you still take the same position?

Mr. Walter Kiechel, Jr.: The Supreme Court of Colorado says that their lower courts held the plenary power to accommodate the award of earlier priorities as to asserted in a supplemental procedure.

Justice Byron R. White: In appropriative rights?

Mr. Walter Kiechel, Jr.: Well, they said as to both --

Justice Byron R. White: Well, just put aside --

Mr. Walter Kiechel, Jr.: -- but your question is addressed to appropriative rights and I am responding to it so that if the Supreme Court of Colorado is correct, but they gave no specific construction or direction to the lower court, they just said that, that the lower court can accommodate somehow and modify or re-write this provision of the Colorado law which says no priority earlier than the supplemental proceeding.

Then, if Water District 37 were a river system in the terms of the statute then the state acquired rights or the rights acquired under state law could be adjudicated in my opinion assuming that all parties who had rights were joined, all parties on that river system and this is not the nature of this procedure Mr. Justice White.

I think that outside of the Colorado conservation district, there is one of the interveners a Zinc Company and several other claimants, but certainly it's far from having before the Water District Court -- the court of Eagle County, all of the water claimants of the Eagle system.

Justice Byron R. White: Well, that pretty well makes a shambles out of the whole statute, doesn't it in terms of consent?

Can you imagine one that -- where at the outside you could guarantee that every single party known the man can't quite possibly be there?

If they miss one --

Mr. Walter Kiechel, Jr.: That is, yes I can imagine Mr. Justice White.

That is the traditional adjudication, that is the way in which water rights of the west have been historically determined to have all the parties before it.

I say that that was the type of adjudication, the proceeding to which Congress -- that Congress had in mind and this is very clear from the senate report which is referred to in the Court's opinion in Dugan v. Rank.

The senate report 755, which was the report by which the Senate Judiciary Committee reported favorably to McCarran Bill and that report shows unmistakably that it was this general adjudication in which all parties were present and that was the type that the Congress had in mind in their consent.

Justice Byron R. White: But you're going also to argue that I suppose that this isn't a general adjudication because the Eagle River is just a tributary?

Mr. Walter Kiechel, Jr.: I do argue it Your Honor.

Justice Byron R. White: So to qualify under the statute, you have to have the entire Colorado River system?

Mr. Walter Kiechel, Jr.: I say that --

Justice Byron R. White: Within the --

Mr. Walter Kiechel, Jr.: -- to quality under the statute in this Court's rule in Dugan v. Rank, you would have to have all of the tributaries and the mainstream of the Colorado river --

Justice Byron R. White: And the all people --

Mr. Walter Kiechel, Jr.: -- in the state of Colorado.

Justice Byron R. White: -- or and all of people in the eastern slope were taking it out to Colorado?

Mr. Walter Kiechel, Jr.: If they are claimants to water rights on the Colorado River, yes.

Justice Byron R. White: Specially, if somebody is claiming at earlier date that to have all them too?

Mr. Walter Kiechel, Jr.: If they are claiming rights to use water of the Colorado River or its tributaries in the state of Colorado, yes.

I believe that, that is within this Court's decision in Dugan v. Rank.

Justice William O. Douglas: There wouldn't be a courtroom large enough to hold the lawyers?

Mr. Walter Kiechel, Jr.: Well, Mr. Justice Douglas water rights adjudications are by nature are prolonged, cumbersome and multi-party.

This is nothing new.

The Congress had this certainly in mind when they enacted consent statute.

Justice Byron R. White: But when some state comes along and attempts to perhaps modernize the statutes and its adjudications to make some sense out of them.

Don't you think Congress' consent is to end, it's consent for one single type of adjudication and that's it?

Mr. Walter Kiechel, Jr.: Well, when you use the word ?one single type,? I would agree that it is the general type, the historic type of determination judicially of water rights to which Congress was consenting.

Justice Byron R. White: Well, you don't suggest that present Colorado system is unconstitutional, do you?

Mr. Walter Kiechel, Jr.: I'm not making any argument ti that effect, no sir.

But I was answering your question as to the congressional intent and I think that not only the senate report, the discussion on the floor, all of those things with respect to the legislative history of the McCarran Amendment show that Congress had in mind the traditional type of water adjudication, have in mind state a right acquired under state law.

Justice Byron R. White: Well, if the United States claiming water under state law appropriative rights and wants to assert those rights, you nevertheless say that the United States can just sit back and use the water and until and unless it wants to go into a court and establish those rights there is nothing anybody can do about it?

Mr. Walter Kiechel, Jr.: I say, if Your Honor please, that if United States has to be joined in an adjudication under the consent statute that the requisites, the perquisites of that jointer must be satisfied by those who are --

Justice Byron R. White: Well, I know but how about my question -- how about my question, does that really mean that United States may --

Mr. Walter Kiechel, Jr.: No, Mr. Justice White, I don't think there's any defiance by the United States.

Justice Byron R. White: I'm not suggesting defiance.

I'm just saying that until unless you want to go to Court that you can just use the water?

Mr. Walter Kiechel, Jr.: Well, if we're talking about rights under state law still and I would suggest that those Congress had in mind could adjudicated in a state court.

Justice Byron R. White: Well, yes but what are (Voice Overlaps) --

Mr. Walter Kiechel, Jr.: I responded to your earlier question by saying that if the Colorado -- if the Eagle River were a river system and if the Colorado District Court could accommodate this bar gate that I saw no reason why United States couldn't be joined and be required to assert its rights acquired by appropriation under state law and be subject to the decree of the Court in the State of Colorado.

Justice Byron R. White: Meanwhile, the United States can just use the water that it's appropriated without anything more until and unless that Colorado brings -- institutes a proceeding qualifying, under your view statute of the United States as --

Mr. Walter Kiechel, Jr.: Well, I'm not sure that -- there is no lack of water adjudications passed and being in process in the state of Colorado that the water -- Colorado conversation district sought to bring the United States in this case.

So that it is a matter at the instance of the plaintiff or the petitioner to join the United States and if in the absence of jointer or in the absence of satisfaction of the requirements of the statute United States is not a party to these proceedings then, --

Justice Byron R. White: Does the United States know what its claims are, its appropriate claims are under state law?

I suppose it does, doesn't it?

Mr. Walter Kiechel, Jr.: Yes, there are many and they have been assembled and I believe that (Voice Overlaps) --

Justice Byron R. White: Do you have any idea what reserved rights you're claiming?

Mr. Walter Kiechel, Jr.: Yes, Your Honor.

This is set forth in the record in the case and the record shows that --

Justice Byron R. White: Well, does reserved claims mean whatever you may need in the future?

Mr. Walter Kiechel, Jr.: The reserved right doctrine says that the quantum of the right is that amount of water necessary to fulfill the purposes of the reservation, Arizona v. California.

Justice Byron R. White: Yes and that would be as far you could go in quantifying your reserved right to claim?

Mr. Walter Kiechel, Jr.: Oh!

No Mr. Justice White.

They can quantified.

There is no -- I'm not saying that they can't be quantified.

The record shows on page 7.

Justice Byron R. White: Well, that's alright.

Mr. Walter Kiechel, Jr.: I have the reference to the record.

I will supply --

Justice Byron R. White: That's alright, but --

Mr. Walter Kiechel, Jr.: It shows that the rights as I said in earlier answer to Mr. Justice Douglas that most of the rights to be asserted in Water District 37 are reserved rights on national forest, but with respect to your question as to whether they can be quantified, they can be quantified.

Justice Byron R. White: But when does the United States -- if you win this case, when would the -- how would the United States plan to establish their reserved right just by -- would you bring some proceeding to (Voice Overlaps) --

Mr. Walter Kiechel, Jr.: They are established.

No, there would be no contemplation of establishment.

They are by operation of the doctrine and the rule of law established by the creation of the reservation, but as far as the quantification, considerable effort has been done to an inventory and catalog of those rights and they are determined by amount and location.

Justice Byron R. White: But that would just be by administrative action, you wouldn't ever anticipates subjecting or submitting those quantifications to a court, if you could help them?

Mr. Walter Kiechel, Jr.: Not as party defendant joined under 43 U.S.C., 666 because we think there is no authority to do so.

Justice Byron R. White: Well, I understand that.

Bit you would never anticipate either yourself taking these claims to court (Voice Overlaps) --

Mr. Walter Kiechel, Jr.: There have been instances in which those rights have been asserted affirmatively by the United States as plaintiff.

Justice Byron R. White: But in Colorado specially, in this district specifically you would have no plans to participate a judicial proceeding to clarify the amount of your reserved right?

Mr. Walter Kiechel, Jr.: Well, when you say no plans that there is this considerable activity of inventorying the rights.

The Department of Justice may assert proposals to the Public Land Law Review Commission with respect to a means by which these rights can be more early way identified and quantified.

Justice Byron R. White: Administrative?

Mr. Walter Kiechel, Jr.: No, the proposals of Department of Justice which are reflected in the Public Land Law Review Commission report shows that an administrative determination which would be subject to judicial review, but it's not within this consent statute.

I would want to make one qualification of an earlier question which I do not change that they can be quantified, but there is always a certain open endness or flexibility to a reserved right because of the nature of it.

Inherently in that right is the need or the requirement to meet the ultimate -- to meet the purposes, to fulfill the purposes of the reservation and that by definition includes a certain flexibility and the right.

Chief Justice Warren E. Burger: Mr. Kiechel, perhaps you cited and I missed it, but let me ask you.

Since, the passage of the McCarran Amendment, has the government ever been in the posture it's now in in this case in a state court --

Mr. Walter Kiechel, Jr.: Yes, Your Honor.

Chief Justice Warren E. Burger: -- where you participated and not raised jurisdictional objections?

Mr. Walter Kiechel, Jr.: Well, we are participating, have participated in a number of water adjudication proceedings.

In some and perhaps all, we have raised certain jurisdictional defenses, but they have been -- the problems in those instances in other states I might say have been overcome and the United States has adjudicated and presented for adjudication its rights pursuant to this statute in other proceedings.

Justice John M. Harlan: Why do yourself (Inaudible)?

Mr. Walter Kiechel, Jr.: Can we?

Justice John M. Harlan: How could you?

Mr. Walter Kiechel, Jr.: We cannot, that is quite correct.

Justice John M. Harlan: But Chief Justice has asked the question, have you submitted to the (Inaudible)

Mr. Walter Kiechel, Jr.: Well, there have been determination well as we have as I indicated earlier as plaintiff in some the Fallbrook case in Southern California and United States was plaintiff there but in response to your question Mr. Chief Justice, there have been determinations by the state court --

Chief Justice Warren E. Burger: With your consent?

Mr. Walter Kiechel, Jr.: Over our objection --

Chief Justice Warren E. Burger: Over objection.

Mr. Walter Kiechel, Jr.: -- that it was a river system and that -- and in case there was not this problem of adjudicating going back and given a true priority to our rights acquired under state law.

In fact, I think one of the amicus briefs, the State of Washington brief presents its litigation program, number of cases that it has brought under -- in that state and which the United States has been joined pursuant to the statute and they include one of the decrees which shows that the state court recognized the reserved right and decreed in certain quantity with the provision or proviso that if at a later time there should be additional need for additional water to fulfill the purposes of reservation, this was within the contemplation of the decree.

Justice Byron R. White: But that in your position -- from your standpoint that was beyond the jurisdiction of the state court?

Mr. Walter Kiechel, Jr.: We took no appeal from that decision of the lower Washington court.

Justice Byron R. White: I know but your view is that that decree -- that court is without jurisdiction to adjudicate your reserved rights?

Mr. Walter Kiechel, Jr.: Reserved rights were not involved in that case.

Justice Byron R. White: Oh, I thought you said that the Court did take -- did recognize your reserved rights?

Mr. Walter Kiechel, Jr.: Yeah, you're quite right.

I'm sorry (Voice Overlaps) --

Justice Byron R. White: Well, under your position here that court had no jurisdiction to reach reserved rights even if you consent it because you have no power to consent.

Mr. Walter Kiechel, Jr.: That is correct.

Justice Byron R. White: Uh-huh.

Justice William O. Douglas: Washington state adjudications didn't entail the entire Columbia River system?

Mr. Walter Kiechel, Jr.: No, indeed sir.

They did entail what was determined to be a river system, the Chehalis Creek River System, but there was not as followed in that case, in that state of the bar date of the priority and I might say Mr. Justice White in all candor I think that the United States and I want admit that they have asserted reserved rights in state court adjudications because this Court has not spoken on this matter and it was still -- until that determination is made that in abundance of caution as an advocate does, those rights are asserted notwithstanding our position here and I might say in further answer to your question that we are very concerned about the state -- the Supreme Court of Colorado which go at the existence of reserved rights in the state of Colorado.

And we are asking this Court to declare, reaffirm the reserved by doctrine with specific application to the state of Colorado.

Justice Byron R. White: Now we're required to (Inaudible) be helpful.

All we have to say yes there were reserved rights and (Inaudible)

Mr. Walter Kiechel, Jr.: Well, if Your Honor please the Supreme Court of --

Justice Byron R. White: The issue -- the issue here (Inaudible)

Mr. Walter Kiechel, Jr.: Well, we have asserted.

Justice Byron R. White: (Inaudible) specifically to the case?

Mr. Walter Kiechel, Jr.: If we have asserted and made known those reserved rights, they are before the Court.

Those are rights which we will assert in Water District 37, if we are required to proceed.

Justice Byron R. White: Well, I know but (Inaudible) is that reserved right is out of the case?

Mr. Walter Kiechel, Jr.: That's correct, Your Honor.

Justice Byron R. White: And worry about the (Inaudible)

Mr. Walter Kiechel, Jr.: I don't know how easily, but it could be done as a part of plaintiff yes Your Honor.

The legislative history of the act is common to both of these cases and I will treat it in the later case if my time has expired.

Chief Justice Warren E. Burger: Very well Mr. Kiechel.

Mr. Balcomb.

Argument of Kenneth Balcomb

Mr. Kenneth Balcomb: Mr. Chief Justice and may it please the Court.

My client, the Colorado River Water Conservation District is an state organization by statute obligated to protect the waters of the Colorado River for the State of Colorado -- that is the waters for the Colorado River and its tributaries within the state and it was in this pursuit of this goal that I as counsel for the district in the adjudication proceedings and in Water District number 37 caused the United States of America to be served.

Because as is indicated they not only have substantial what I would call rights acquired under state law, but substantial rights that they denominate as reserved rights.

Now, this Water District number 37 encompasses the entire Eagle River and its tributaries and it's a rather substantial stream though you might say small by comparison to Colorado as a whole, nonetheless is a compact adjudication and administration unit.

It is incidentally included within the area that is involved in the second case number 812, the division 5 case by reason of subsequent Colorado law amendments.

Justice Hugo L. Black: I wonder it would be -- (Inaudible) if you can state at least in the amount of capsule form what you conceive to be the issue?

Mr. Kenneth Balcomb: I view the main and principle issue in this case Your Honor to be whether or not the state courts in state adjudicating -- adjudicatory procedures have jurisdiction over the United States if they comply with the service requirements of the McCarran Amendment.

Justice Hugo L. Black: Question of jurisdiction?

Mr. Kenneth Balcomb: Yes sir, which we deem was granted by the McCarran Amendment over the United States upon compliance with that Act as to whether you have to break this out and I do not believe you do until a distinction between the classes of rights to the United States says it claims.

We do not believe it to be necessary because once you're over the jurisdictional problem, it looks like to me it was intent of the Act to catch all rights.

Otherwise, there was no point in joining the United States at all.

They only have to bring in part of their bucket of water, the balance of the bucket water still being hidden the whole purpose to McCarran Amendment is lost I believe.

Justice Hugo L. Black: Your claim rests on the McCarran Amendment?

Mr. Kenneth Balcomb: Claim with jurisdiction does, yes sir.

I would like to touch kind of briefly in at least partial response to some of the questions asked by Mr. Justice White on just exactly what an adjudication is under the Colorado law and if I correctly understand the laws of the other involved states primarily the 17 western arid and semi-arid states, Colorado has a really somewhat difference system of the balance or had at least under the 1943 Act and that was purely judicial, without any involvement of a state officer.

But nonetheless it was a state sponsored or what the Pacific Live Stock case decided by this Court said was a quasi judicial proceeding sponsored with the public, quasi public.

At the time that the McCarran Amendment was passed, I would say, though I don't know this precisely, that of the 70 water districts referred to by counsel, probably all but two or three had already had not won the original proceeding but possibly a half a dozen others or more denominated supplementary adjudications.

And I just do not believe it can be possible that the Congress intended in passing this law, knowing full well at all of the states as it recognized, that long head this type of system intended to waste its times by passing an amendment which would not allow the enjoinment of the United States because the proceeding is very denominated as in this case supplemental.

Now, the subject matter of an adjudication proceeding is not people, it is the river itself that raises the water and it is a kind of an action in rem and it is a continuing action because its purpose is to establish, in the order priority, the rights of those persons and entities claiming the right to use water out of the particular stream involved.

So though you use supplementary when you start an action similar to the one that was started in Eagle County as involved here, nonetheless, it means it was in addition to a continuation of the original proceedings commenced in that county great many years before and serves as the method and the means of not only quantifying the water right, but putting it on the water rights ladder in its proper order.

And that is all, if I correctly read the Pacific Live Stock case that any western water adjudication proceeding does, it's established under the appropriation doctrine.

It attempts to establish a comprehensive, expeditious, economical scheme to provide for the fixing of water rights and their distribution and determines who is first who is last.

It provides all the way through it, for at least if not initially, and a final appeal to the Court to establish all these rights.

Now, questions have been asked of counsel for the United States regarding whether or not United States is --

Justice Byron R. White: Was there a general adjudication prior to this proceeding on Eagle River or Water District 37?

Mr. Kenneth Balcomb: Yes sir, there was.

Justice Byron R. White: When was it?

Mr. Kenneth Balcomb: I drafted the petition I should know, but my guess would be as early as 1885 and there were probably 10 or 12 supplementals after that.

Justice Byron R. White: I see and has the United States been a party to any of those?

Mr. Kenneth Balcomb: Not in Water District 37 to my knowledge Your Honor.

Justice Byron R. White: Although it had appropriative rights surely before this supplemental proceeding?

Mr. Kenneth Balcomb: Yes it did, but I doubt that they go back prior to the 1900.

Justice Byron R. White: But they were -- why wouldn't they have been enjoined in some of the supplementals?

Mr. Kenneth Balcomb: Some of the supplemental proceedings that were after the passage of the McCarran Amendment, well it wasn't until as we view, at least as I--

Justice William J. Brennan: In your way --

Mr. Kenneth Balcomb: Sir?

Justice William J. Brennan: You said 10 or 12 supplementals in this proceeding since 1885?

Mr. Kenneth Balcomb: Yes or more, I'm not even sure of that.

Justice William J. Brennan: Why was not the United States joined in any event?

Mr. Kenneth Balcomb: Till 1952 they could not rejoin because they had not raised sovereign immunity.

Justice Byron R. White: And how about after 1952?

Mr. Kenneth Balcomb: I don't believe the people of the -- most of the western states that were initiating and starting this kind of a proceeding were particularly concerned about this so called reserved right problem until this Court it's decision --

Justice Byron R. White: Well, how about -- how about appropriative rights?

Apparently, there have been never been any adjudication of the appropriative rights of the United States in Water District 37?

Mr. Kenneth Balcomb: That is correct Your Honor.

Justice Byron R. White: Well, that's -- there have been some adjudications since 1952 in the state courts, why wasn't the United States joined in those proceedings?

Mr. Kenneth Balcomb: Well, under the Colorado system, primarily the -- in person or the applicant who opens the adjudication proceeding might not even be conscious of the McCarran Amendment or have any concern about the rights of the federal government.

It is the people more interested in protecting the overall state rights who after Arizona versus California relies that the government in Colorado could, if she pursued her approach that was used in Arizona versus California and dry up the river.

It was just as simple as that and so they began then to be concerned and worry about whether or not the United States could be brought in.

Justice Byron R. White: I take it that in a supplemental proceeding after 1952 brought some person to establish his right which I take it is what happened?

Mr. Kenneth Balcomb: Yes sir.

Justice Byron R. White: If people -- other people -- people who weren't served are not bound or not?

Mr. Kenneth Balcomb: Yes, they are bound.

They have a limitation statute that compel that to be binding.

Justice Byron R. White: And -- but if you win this case would the United States be bound by all of the supplemental adjudications since 1952?

Mr. Kenneth Balcomb: I would say, if Your Honor is asking me to make a strict guess out of that, I would say no.

I might observe that --

Justice Byron R. White: Well why not?

Mr. Kenneth Balcomb: This problem is raised by the United States itself and not by anyone else and citing the previous Arizona versus California case to Supreme Court of Colorado, they said we have never been a part in the action.

The Supreme Court of Colorado says you can't -- the United States says you can't bind us until we have been properly a party and therefore the prior proceedings cannot cut off the right of the United States.

And as I understand the discussion of this problem by Mr. Justice Groves of the Colorado Supreme Court, he was reciting in effect the position of the parties.

He only really made one decision for the court and that was that Colorado Courts are capable of adjudicating the water rights of the United States just like anybody else.

He didn't reach the question of whether or not they could andante prior decrees, but indicated they probably could.

A variety of questions he mentioned in passing, but he did not necessarily reach them.

Now, I would like to if I could touch very briefly upon some of the cases in which in one way or the another, the United States is been involved, effecting the water rights on particular streams in particular states and whether or not they took this attitude that they are now taking in this case.

If I correctly understand the Washington brief and I believe that I do, Page 10 of the Washington brief in in In Re Chehalis Creek, Okanogan County is cited and it is the case to which counsel referred that it is just one of nine streams in which the State of Washington has caused United States to be joined and their names would indicate to me that they are certainly no larger or more prominent than the Eagle River, in Re Bonaparte Creek, in Harvey Creek creek, in Re Magic Creek and this got a matter and in only one of those did United States raised the question of whether or not a river system was involved, raised this before United States District Court for the Eastern District of Washington and apparently lost the matter on remand.

The other case mentioned by counsel involves Utah, there have been several there.

The most principal case involving this particular section was the In Re Green River case decided by Judge Chilson.

The question there was whether or not the United States Federal District Court had jurisdiction to conduct the adjudication for the benefit of the United States rather than this question of a stream system being involved.

Now, we have kind of I believe exhaustively briefed this problem with regard to what the statute intended to cover at the time of its passage.

We think it very clear as has been indicated by answers to questions here that it was intended to be allowed if the United States had one appropriative right on a stream to join United States in the action.

Certainly as a minimum, this is what the McCarran Amendment was intended to reach.

Justice Harry A. Blackmun: Mr. Balcomb, I don't believe I heard either counsel as yet speak specifically of the language of the McCarran Amendment and I have in mind a language reading water rights by appropriation under state law by purchase, by exchange or otherwise.

I'm interested on those words or otherwise unless you tell me that they are have no significance whatsoever?

Mr. Kenneth Balcomb: I believe at the time Your Honor that this particular Act was passed, this question about, I mean, utilization of the word ?reserved? in the connection of the water rights was not in too common parlance, not even by the government itself.

It had be come up only as an implied reservation in connection with Indian reservations and was not considered to be particularly serious.

I do think that it was the intention of the Congress in passing McCarran Amendment and utilizing it or otherwise was to avoid a long listing, it can cover such things as condemnation or right as subject and certainly was not intended by use of that word to exclude reserved rights, because I believe it intended to catch everything.

Justice Harry A. Blackmun: So that you do feel the words or otherwise have significance in the present context?

Mr. Kenneth Balcomb: Yes sir and they certainly did at the time in the mind of the Department of Interior witnesses who testified as well as the Department of Justice who testified and pointed out that this language that you're using is a general waiver and if we are brought into the Court, we'll have to prove up on all of our rights, our Indian rights, our military rights, things of this nature and they then did not call them reserved rights, they were specific by naming those rights.

And I think that the letters from justice and from Interior Department show very clearly that they were concerned that the waiver was too broad and in both letters made the suggestion that the waiver should be confined to state appropriated rights and as the committee report 755 notes, they considered this and rejected it, considering that the --

Justice John M. Harlan: Was there any particular efforts though that gave rise to amendment to the passage (Inaudible)

Mr. Kenneth Balcomb: As I understand the legislative history Your Honor, it was a combination of apparently of circumstances, an inability in Senator McCarran's home state to properly administer a little stream called the Queen River which had some 75 rights adjudicated out of it, three of them of which the government had purchased.

There was the two pending cases in the United States District Court.

One of them which is not yet in judgment, concerning the Truckee and the Carson Rivers and the rights of the Indian for the recollection project there which apparently had involved there.

There was the Fallbrook cases that counsel for the government mentioned that were bothering then Senator Nixon and Senator Nolan.

There was a variety of these kind of things, even the Colorado senators mentioned the problem that existing in connection with the Blue River which was then pending in United States District Court for the District of Colorado.

Justice Potter Stewart: The opposition to the legislation came from the executive branch of justice department and the Department of Interior and it also came in the Congress through such people as Congressman Rooney, what would explain that sort of --

Mr. Kenneth Balcomb: I think his warning you might say, the Congress -- the step that they were about to take, exemplifies their thought that it covered all water rights was not related to expense items which were in the government or anything like that.

It was considered by the people who sponsored the absolutely necessary to bring certainty into the field of water rights in the west.

Justice Potter Stewart: But the opposition in Congress came from those who were concerned about the expense that might be cost to the justice department?

Mr. Kenneth Balcomb: That's correct.

Justice Potter Stewart: Is that it?

Mr. Kenneth Balcomb: You'd have to have a district attorney in every county in western United States.

I might say -- it has been suggested of course, well, why doesn't this Court give the justice department and the other federal agencies time to make a list and put it somewhere?

Well, in 1952, this was part of the legislation in rejecting and they have, 18 years since then, the time this suit was really going and they haven't made a list yet until they were brought into court.

But when they were brought in the court as the appendix indicates, they were able to detail in particularity their uses, not only appropriative but also reserved uses within the area of the Eagle River.

I wanted to touch, if I might, briefly upon some 11 to 12, 13 cases, at least that we have been able to find as reported decisions that relate to or refer to this particular Section 666.

Counsel has mentioned the only one I believe it is been this Court for a direct decision on it, there were two count cases at the time, that's in Dugan versus Rank.

And I would like to call the Court's attention to the fact that every time this Court or the Circuit Court for the Ninth Circuit or for practical matter any other court has held that 666 did not confer jurisdiction, that it was not a quasi public suit that was involved.

It was request for declaratory relief, injunction, sometimes denominated a class action and court said in every circumstance that is not what's involved because it is not the quasi public proceeding called a general adjudication in western states.

And the only case the really reaches this point is the very first one on the list and that's the In Re Green River case that Judge Christensen decided in Utah.

And he thoroughly discusses the legislative history, finds that it was intended that United States be joined, does not concern himself with the difference in kinds of rights, but merely said, go back to the state court, they have the machinery.

I've noted that sometimes the adjudications in Utah, they go on for years and there is thousands of people involved and the federal court just doesn't have time to take care of this.

This got to go back to the state courts that has appropriate machinery.

I'd like to touch on another point and it is this attitude of the government today and the attitude as changed over the years of various times that brings I think monumental confusion for the other departments of the government.

They don't know what to do.

The four sets of regulations concerning what they ought to do change time and again.

It ends up that if United States is not held into this action.

There is only one kind of right that must be barred according the state law and that would be your reclamation rights by reason of Section 8.

I think that the principle problem is not whether or not a reserve right exists, but if it does in fact exist when -- what occasion, when it was reserved --

Justice Byron R. White: What is the derivation of the reserved right?

Mr. Kenneth Balcomb: What is the derivation?

I believe it can commence with Witters (ph) and progress there to various Indian reservation matters until finally culminating in Arizona versus California.

Justice Byron R. White: Colorado Supreme Court has said there isn't such thing as reserved right, isn't it or not?

Mr. Kenneth Balcomb: No sir, I don't so read the opinion.

Justice Byron R. White: You don't?

Mr. Kenneth Balcomb: No sir.

Justice Byron R. White: You don't so read the prior opinion?

Mr. Kenneth Balcomb: The Eagle County case below?

No sir, I do not.

In fact, I think the Mr. Justice Groves refused to reach the question.

Justice Byron R. White: Yes, but how about a prior case in the Colorado Supreme Court to which your colleague here referred to?

Mr. Kenneth Balcomb: Stockman versus Leddy, as reaching the reserved right question?

That reached the date to appropriation question I believe Your Honor.

Reserved right question to my knowledge is not been reached in Colorado.

Justice Byron R. White: And your idea would be that the reserved right question is whether every thing else should be submitted in the proceeding like is now before the Court and that it should go up through the state courts and you agree that's a federal question, don't you?

Mr. Kenneth Balcomb: That whether or not there's a reserved right?

Justice Byron R. White: Yes.

Mr. Kenneth Balcomb: Yes sir, I do.

Justice Byron R. White: And subject to review here?

Mr. Kenneth Balcomb: Subject to review here and that's the right of the government if the Colorado Courts as they're afraid will not follow the law, but I submit that I suggest that the Colorado Courts will follow the law, both federal and state law, without hesitation.

Justice William J. Brennan: Isn't it your submission that the determination of reserved rights to the extent any federal court that can do and I gather under your submission it would be only this Court on review of the Colorado Supreme Court, isn't it, and if so, an adjudication of a reserved right issue?

Mr. Kenneth Balcomb: That's the way I view the statute, yes Your Honor.

Justice Byron R. White: Did your pleadings in this case or take the position or have your clients take the position that United States has no reserved rights?

Mr. Kenneth Balcomb: If I as opening proceeding I have not, no, sir.

In fact, as I would give recognition to them, I'll only inquire as to what is the quantity and what is the date.

Justice Byron R. White: Do you think they're subject to date, do you think they're subject to the Colorado appropriation law?

Mr. Kenneth Balcomb: Yes sir.

I don't think there's any difference just because you denominated reservation between bad and the word ?appropriation.?

Justice Byron R. White: So you don't think there's really any reserved right then, any different from appropriative uses?

Mr. Kenneth Balcomb: That's correct.

I think that United States would be entitled to the extent of a can show what's right to whatever date it was that they said this water is ours.

Justice Byron R. White: It might be subordinate to some other rights, is that it?

Mr. Kenneth Balcomb: Might be subordinate to some that came into existence, ahead of those rights of United States (Voice Overlaps) to the other.

Justice Byron R. White: You just say United States either has appropriative rights under Colorado law or does it and the reserved rights you know many other rights?

Mr. Kenneth Balcomb: What I'm trying to say Your Honor is that I recognize United States does have appropriate rights under state law and likewise has appropriative rights under federal law, they chose to call it reserved rights under the federal law.

Those are all implied, they have to be found, those letter.

Justice William O. Douglas: Do you agree or disagree with the adjudication in Arizona versus Colorado, the so called reserved rights?

Mr. Kenneth Balcomb: Do I agree with it?

Justice William O. Douglas: Yes.

Mr. Kenneth Balcomb: I don't know a thing about the fact system quantity but I certainly agree with the theory that was --

Justice William O. Douglas: That's what I mean.

Mr. Kenneth Balcomb: Yes sir I do.

I don't think I have very much choice in that regard in any [Attempt to Laughter] event.

Justice William O. Douglas: Well, I mean is it the principle that you think would generally apply to this litigation?

Mr. Kenneth Balcomb: I think --

Justice William O. Douglas: The findings of the master that the setting aside of the Indian reservation carried with it by implication, the right to use water because otherwise you wouldn't have a viable reservation.

Mr. Kenneth Balcomb: We agree with that whole heartedly Your Honor, we think that is correct.

Justice William O. Douglas: Again I gather you answered me earlier that it may be even as to those rights, they are superior rights?

Mr. Kenneth Balcomb: Unquestionably, if the Indian reservation will say or the forest was withdrawn in 1900 and there were a variety water rights acquired prior thereto they would be a likewise entitled to their priority date, that is the appropriation system.

Justice Byron R. White: And you say reserved rights can override that?

Mr. Kenneth Balcomb: It can't go back when they came into existence Your Honor.

That's what I say.

Justice Byron R. White: But the government's claim is to the contrary?

Mr. Kenneth Balcomb: I don't believe so.

No, I don't mean the --

Justice Byron R. White: You don't think so?

Mr. Kenneth Balcomb: No, because the government's claim in 1905 here not 1877.

Justice William O. Douglas: The appropriation right couldn't override any reserved right.

I mean the government sets aside and then the appropriators come in, sets aside a federal entrapment that river of course.

Mr. Kenneth Balcomb: I agree with the position the government takes that they're entitled to show their date and go back to it, unquestionably and to the extent that this takes out other appropriate rights, I guess that's just one of the ways the game is play but that's the purpose of the system.

Justice Byron R. White: Well, but do you say that when a government sets aside a national forest or something else or a new Indian reservation that its appropriative right is limited by what it actually is using then or can the right expand as the need expands in the future?

Mr. Kenneth Balcomb: I think I can answer the question this way Your Honor is that about 1897, I believe that the Organic Act setup the forests and largely, they were timber reserves and there were specifically for the purpose of timber.

Now, I would say in that original withdraw, this was the purpose for which the water was drawn and whatever the United States could show it needed for this purpose it's be entitled to reserve.

Justice Byron R. White: And that's it?

Mr. Kenneth Balcomb: Yes sir.

In 1960, I believe it was the act concerning multiple use of federal land went in when they dumped all these other things and on top of it as a purpose for the forest.

And it might be the court would -- a court would hold that as to some of these rights that the United States claims they would have to come and clear up to 1960.

Justice Byron R. White: So the reserved right you are booked with -- have no open end?

Mr. Kenneth Balcomb: No what Your Honor?

Justice Byron R. White: No open end -- wouldn't be open end to cover future need except to the extent was water available?

Mr. Kenneth Balcomb: I can't certainly understand that some of them would be so de minimis that there would no point wasting time, but the government is in a better position to say then we what's that going to be, that's the problem.

Justice William O. Douglas: Nobody knows what these reserved rights are?

Mr. Kenneth Balcomb: I think they do Your Honor, they were perfectly able to list in the Eagle County.

Justice William O. Douglas: I don't, but in terms of cubic feet per seconds.

Mr. Kenneth Balcomb: They were able to that there also, they spoke of their general reserved rights and then spoke of these things that they were going to claim specifically which as I view it, is a double claim (Voice Overlaps) --

Justice William O. Douglas: But they were been adjudicated, have they?

Mr. Kenneth Balcomb: Sir?

Justice William O. Douglas: They have never been adjudicated?

Mr. Kenneth Balcomb: They have not offered them for adjudication and that's all we ask them to do and all we ask this Court to do is to direct them to do so.

Justice Hugo L. Black: Is to do what?

Mr. Kenneth Balcomb: Direct the government to offer its claims for adjudication and as is indicated if the Colorado Courts, the Utah Courts, the Washington Courts go straight as Court is doing here is to straighten that problem out.

But I don't think it's fair to assume that state courts are not going to follow federal law when they are specifically enjoined to follow.

Chief Justice Warren E. Burger: And even if they don't I suppose there are ways of dealing with that trouble, aren't there?

Mr. Kenneth Balcomb: Yes sir, there is.

As matter as I view its appearance what is right and what is wrong.

Is it wrong to allow the government standout here with this open ended mortgage or is it right to make them bring that open ended mortgage into court and declare their rights, I should say equitable way to proceed as I view.

I might mention, my time is about to expire, that there is a -- I would have an opportunity of course after Mr. Kiechel speaks concerning A-12, but there is an amazing similarity between these cases and I think that the result probably should be the same.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Balcomb.

87 is submitted.

Featured:

U.S. v. District Court For Water Di v. No. 5 - Oral Argument

Thu, 23 Aug 2012 18:31:04 +0000

Case:

U.S. v. District Court For Water Di v. No. 5

Media File:

812_19710302-argument.mp3

Related Transcript:

812_19710302-argument

Transcript:

Argument of Kiechel

Chief Justice Warren E. Burger: We'll now hear arguments in 812, United States against the District Court of Eagle County of Water Division No. 5.

Mr. Kiechel, you may proceed whenever you’re ready.

Mr. Kiechel: Mr. Chief Justice and may it please the Court.

Under the Colorado Water Rights Determination and Administration Act of 1969, the 70 water districts were replaced with 7 water divisions.

Water Division 5 includes the area drained by the Colorado River and its tributaries, excluding the Gunnison River and this includes the former Water District 37 and Eagle River Watershed.

In February of last year, the Attorney General received by mail a paper signed by the water clerk of the Water Division 5, directed that all persons interested in water applications in said division, supplying a list of water right applications filed in that office.

The paper concluded with the statement that the recipient had until the last day of March, 1970, that was the month thereafter that preceded the notice, to file with the water clerk a verified statement of opposition to any such application.

Similar notices had been received by the Attorney General listing water rights applications filed during each month thereafter in Water Division 5 and in Water Division 4 and 6 as well.

The response to the 1969 -- December 1969 notice, the United States filed a motion to quash, this was denied.

The writ was applied for the Colorado Supreme Court which was denied.

As in the Eagle County case affected by the proceedings in Water Division 5 or Federal Water Rights of two types, property rights acquired in the state law and reserved another rights based on federal law.

Because of its size, Water Division 5 contains a multitude of federal rights to determine, demonstrate their magnitude in nature.

We’ve prepared a map on which has been delineated the boundaries of Water Division 5 and shows the various federal reserve areas within that Division 5 before national forest or parts thereof in Green, the Naval oil shale reserve, black, National Park or part of the Rocky Mount National Park on that side of the divided in Red --

Unknown Speaker: Do you mind waiting when we get in that?

Mr. Kiechel: Oh, I’m sorry sir.

Chief Justice Warren E. Burger: While we’re waiting, will you give some thought to and then perhaps suggest any reason why the Colorado courts will not follow federal law if that’s part of the predicate of your position?

Mr. Kiechel: Yes Your Honor.

We are concerned about the opinion of the Colorado Supreme Court to that extent -- in that respect to the extent that the Colorado Supreme Court discussed the question.

They said that the decisions of this Court reviewing Winters v. United States in 1908 which announced the reserved right doctrine, Federal Power of Commission v. Oregon 349, and Arizona v. California in 1963 in 373, were not determinative of the question.

The --

Unknown Speaker: Now, that determination of the Colorado Supreme Court is reviewable here in the instance of the United States?

Mr. Kiechel: Yes Your Honor, I believe it is.

Unknown Speaker: So, you do get a review in the Federal Court of Appeals?

Mr. Kiechel: Yes.

Our position is that this is -- it is reviewable and the Supreme Court has held that the decision -- in affect the Supreme Court of Colorado said that when this matter was presented to them, and they were decided on the basis of Colorado law.

And they referred to the Stockman versus Leddy Case which Mr. Justice White referred to in their opinion and said they would have to overrule that decision if they found that there were reserved rights in -- of the United States in the State of Colorado.

Justice Byron R. White: Well, do you think Leddy purported to say what federal law is?

Mr. Kiechel: Well, Leddy --

Justice Byron R. White: Or just for that under Colorado law --

Mr. Kiechel: Leddy relies upon the Enabling Act of Congress, and it -- the --

Justice Byron R. White: The United States didn’t reserve the --

Mr. Kiechel: They said that by admitting Colorado into the union with a constitutional provision -- state constitutional provision that said that all rights of the water of the State of Colorado were property of the people and subject to appropriation under state law that the United States is precluded from asserting a claim of reserve rights within Colorado.

Our response to that, if Your Honor please is that the enabling statute required in Section 4 that the people of the territory of Colorado recognize and disclaim any right to the public lands within that territory and recognize that that was a matter for the sole and exclusive disposition of the United States.

This was a specific provision of the Enabling Act and that Act was -- and that provision was referred to once again, when the President proclaimed in his Presidential Proclamation after the Colorado constitution was adopted that the Colorado was a state.

So that we say by the provision of the Enabling Act, Congress reserved to itself for the right disposed of public lands, except for the school land which were granted to the territory and certain other lands and specified amount for public buildings.

And we say there in furtherance of that, that thereafter when the United States reserved from the public domain for a specified purpose lands, it reserved as well the appurtenant water rights to fulfill the purposes of that reservation.

And that carries with it the priority of the date of the creation of the reservations subject and I wish to point out, subject to rights vested at the time of its creation.

The matter of the legislative history, I would discuss Mr. Justice Harlan asked if there were some specific episode which triggered off the enactment of that statute, and I think that Mr. Balcomb has referred to the specific episode which did.

It was a proceeding in the home state of Senator McCarran, the sponsor of the Act in Nevada on the Quinn River, and it involved a suit for administration of water rights already having been adjudicated under a state court.

And there, the United States had purchased, had acquired by purchase, certain water rights on the Quinn River and this is the primary concern of Senator McCarran.

This is demonstrated by his statements on the floor of the Senate, the fact that the -- he says it’s -- to allow the United States in its own right whereas a trustee, those were acquired for Indian purposes, to have a better right than the former owner is not fair and just as to the other water users on the stream.

And of course, the terms of the statute as been pointed out refers to appropriation under state law, and in an appropriative right states such as Nevada or Colorado, the state here involved.

The only way a private citizen can acquire a water right is by application of the water to a beneficial use.

That water right becomes fixed in amount in quality by that act.

Another characteristic of an appropriative right is that it is subject to loss through abandonment or non use.

Now, concerning the legal characteristics of an appropriative right, the second sentence of the McCarran Act which I would refer the Court’s attention to is consistent with the first, only if the consent to sue was restricted to rights acquired under state law.

And second sentence of the McCarran Amendment says, the United States, when a party to any such suit, one shall be deemed to a waive any right to plead state laws are inapplicable, or that the United States is not amenable, there too by reason of its sovereignty and too shall be subject to the judgments, orders and decrees of the court having jurisdiction, and may obtain review thereof in the same manner into the same extent as a private individual under like circumstances.

Justice John M. Harlan: There is no provision in the statute obviously that relates to reserve rights or makes an exceptions or use a different phrase to appropriative rights extend to federal laws, there’s nothing in the statute in that?

Mr. Kiechel: That is correct Your Honor.

Justice John M. Harlan: Was there any effort made to put in such language?

Mr. Kiechel: There was not.

The express terms the statute referred as rights acquire under state law, for appropriation under state law.

Justice John M. Harlan: So it has a catch all phrase or otherwise?

Mr. Kiechel: That’s correct Your Honor.

But what I am saying is that these terms of the statute by appropriation under state law, by purchase, exchange or otherwise is the means by which a private individual can acquire a water right.

And it was that type of right which the United States had acquired in this Quinn River situation that Senator McCarran was concerned about being subject to adjudication or in that case, administration by the state court of Nevada.

Justice Potter Stewart: Of course, this was suggested earlier in argument at that time of the enactment of the McCarran Amendment, the concept of reserve rights hadn’t matured or become quite so clarified as it is now.

Perhaps, there’d been the one case involving an Indian reservation, but the passage of that legislation long antedated the decision of this Court in Arizona against California, did it not?

Mr. Kiechel: That is correct Your Honor.

Justice Potter Stewart: It’s primarily in that case?

Mr. Kiechel: Must it.

The Winters v. United States was a landmark decision of this Court --

Justice Potter Stewart: Having to do with Indian reservation?

Mr. Kiechel: Yes indeed, and it was until Arizona v. California that it was extended to other federal reservations, but the concept of a right other than an appropriative right, a right rising by creation of a federal reservation was well known in the water law of the west at the time of the enactment of the McCarran amendment.

Now, with keeping in mind the intent of the sponsor that is Senator McCarran to said be equally that federal government and private citizens to adjudication of water rights acquired under the state law, and the express terms of the statute designed to carry out that intent in sharp distinction and contrast are reserve rights.

The reserve rights as I’ve said arise by creation of the reservation automatically.

They don’t require the application of water to use, priority states from the date that they withdraw and applies to future as well as existing use.

And the -- in summary with respect to the legislative intent, I’d say that there being no expressed provision in the terms of the statute, including reserve rights, nor any specific intent by the sponsor of the amendment, it follows that it was not within the contemplation of Congress that they be included in this state court adjudication.

Justice Byron R. White: Excuse me.

The section distinguishes between adjudication of rights and the administration of rights, isn’t it?

Mr. Kiechel: Yes.

Justice Byron R. White: Well now --

Mr. Kiechel: Yes, Your Honor.

Justice Byron R. White: On its face it does?

Mr. Kiechel: They provide for the joinder of the United States in either or both of those.

Justice Byron R. White: Yes, but distinguishes between the two?

Mr. Kiechel: Yes, Your Honor.

Justice Byron R. White: And if -- on the adjudication part it says “For the adjudication that United States maybe joined in any suit that adjudication of rights is for use of water or river system or the source.”

Now, would you think that that would be consent for someone to sue the United States in the Federal District Court for a declaratory judgment as to whether or not the United States has any reserved rights in the Colorado River system?

Mr. Kiechel: No, Your Honor.

If it’s a two-party suit which does --

Justice Byron R. White: Well, let’s assume he satisfied the -- he brought in everybody in the State of Colorado into the lawsuit?

Mr. Kiechel: I’m not suggesting that that’s necessary, Your Honor, but --

Justice Byron R. White: No, I know.

But let’s assume you insisted and he complied?

Mr. Kiechel: Your question is whether if in a federal court --

Justice Byron R. White: Or any other court, a declaratory judgment --

Mr. Kiechel: I like the hypothetical you mention because it does permit me to say that the Federal District Court would of course apply the reserved right as a matter of federal law.

Justice Byron R. White: I know, but how about consent to sue, does the United States consent to that suit?

Mr. Kiechel: With respect to a single plaintiff, single person asking that the rights of the United States be declared --

Justice Byron R. White: He serves his defendant anybody that you think ought to be served, including the United States.

Now, my question is, does this statute give consent for such a suit?

Mr. Kiechel: Well --

Justice Byron R. White: It seems like it would right in the paragraph one here.

Mr. Kiechel: If it’s a general adjudication, if it does have the geographic and other characteristics of a general adjudication --

Justice Byron R. White: So, you don’t say that this -- at least, in terms the adjudication of rights are part of this, you wouldn’t say that the United States has not given consent to adjudicating reserved rights?

Mr. Kiechel: Oh yes, I do.

I think the language of appropriation under state law applies to both the administration and the adjudication parts of the statute.

Justice Byron R. White: So, you don’t think that then that there would be jurisdiction in the federal court in this case that I pose to you?

Mr. Kiechel: I believe that the reserved rights were withheld by Congress, yes Your Honor.

Justice Byron R. White: Let me, if I get that correct.

Then you take the language where it appears in United States is the owner of process of the water rights by appropriation and the state law as modifying both the adjudication of rights and to the administration, is that it?

Mr. Kiechel: Yes Your Honor.

Justice Byron R. White: And you say what would be -- the legislative history supports that?

Mr. Kiechel: Yes Your Honor.

Justice Byron R. White: Well, that’s a crude way to instruct the statute, isn’t it?

Mr. Kiechel: No.

Justice Byron R. White: But it’s talking about in paragraph two.

It says for the administration of rights where it appears the United States is the owner of or is in the process of acquiring rights by appropriation?

Now, add that on the paragraph one, for the adjudication of rights to the use of water of the river system where it appears the United States is the owner of or is in the process of acquiring water way.

It doesn’t make a great deal of sense, doesn’t it?

Well --

Mr. Kiechel: Yes.

Justice Byron R. White: -- I don’t want to take your time.

Mr. Kiechel: I think it does make sense.

Adjudication of rights acquire under the state law or in the process of being acquired.

My difficulty is with your earlier question Mr. Justice White is that you characterized as a declaratory judgment and I think that would not be a general adjudication because it would not permit the assertion and contesting of the water rights.

The --

Justice Hugo L. Black: At least my point is the Government does not want the state court to excise jurisdiction, basically?

Mr. Kiechel: I beg your pardon?

Justice Hugo L. Black: Basically, why does the Government really object to the state court excising jurisdiction under this Act?

Mr. Kiechel: Well, the procedure involved is not such that we think it permits a general adjudication.

It just isn’t -- it just is within the terms of the type or proceeding to which Congress consented, and we’re also are concerned about the Supreme Court of Colorado in its opinion with respect to the existence of reserved rights which as I’ve point to on the map or a matter of great magnitude in both of these cases, In the Water Division 5, it certainly includes a great part of the area of that area of Colorado.

Justice Hugo L. Black: But if didn’t recognize the United States rights, the United States could bring you case up here, couldn’t it, to us?

Mr. Kiechel: Yes, Your Honor.

Justice Hugo L. Black: But what would be the position in that?

Mr. Kiechel: This is easier said than done, if I might suggest.

I personally have been working with this statute since a lot of time its enactment and this is the first time in which it has been able to bring it before this Court.

The Green River decision Mr. Balcomb refers to was a remand decision under the federal statute, remand by Federal District Court for state court is not reviewable by appeal or otherwise, so that the answer to your question is yes, it can be. Dugan v. Rank is probably the classic example of how long it takes.

That case was started on the San Joaquin River in 1947.

Lengthy proceedings were had.

The United States was joined as a party.

It went to the Court of Appeals and finally gets to this Court in 1963, and the Court held that it was all for naught, there not having been jurisdiction over the United States.

Justice William O. Douglas: Couldn’t the United States had brought one of those Oakenagen cases in the State of Washington in here, where it lost?

Mr. Kiechel: The United States may bring a suit and has -- does bring suits for quieting its right -- its -- under water rights as a plaintiff.

Justice William O. Douglas: Under the Washington State procedure, it was a suit or at least in part of the state as I remember it.

Mr. Kiechel: Yes, United States could initiate a suit as party plaintiff.

Justice William O. Douglas: So, they were a party and they lost in the state case.

They could’ve appealed to the Washington Supreme Court then on here by certiorari, couldn’t they?

Mr. Kiechel: Yes, Your Honor if -- as to that case, in that case, there was -- that is correct, I agree with you.

My – yes sir.

The procedure in Colorado under the water division system now is quite different.

It has a monthly determination.

Monthly, these lists are rendered to the various interested persons, person under the Colorado statute being defined to include the United States.

Although, the continued inability of a Colorado law to consider in a court rightful priorities is perhaps it’s most basic deficiency, it’s by no means the only one on the matter of adjudicating federal water right is considered.

These deficiencies and the burdensome nature of the procedure can best be demonstrated by a consideration of the steps which I would like to run over very quickly.

First, the water clerk not later than fifth of each month sends out this list of -- this resume and then, he publishes it by the tenth of that month, and anyone who wishes to oppose a particular application within the resume must file with the water clerk a verified statement of opposition, setting forth facts why it should not be granted or should be granted only conditionally.

But the last day of the second month following the month in which the application was filed and the water referee of Water Division 5 or the water division, then without conducting a formal hearing investigates the truth of the application and the opposition and within the month, following the month in which the oppositions are filed, rules on the application.

This is mailed by the water clerk to all persons who file either a statement or an opposition and it becomes affective upon entry subject only to judicial review.

So that the statute notices only those parties who are interested in the applications filed in a particular month.

The only water rights before the water referee are those who which an application is been filed.

The only parties are those who’ve taken affirmative action to be heard and so that, even though the referee’s procedures are extremely limited and involve only a part of the water rights and the parties in the water division, the burden on the United States I submit is tremendous.

Justice Byron R. White: Is there any difference, any difference if anybody else such has water rights?

Mr. Kiechel: Except this figure.

Within the two-month period allowed by the statute, the United States must investigate all of these water rights within Water Division 5 and evaluate the impact of these applications in that monthly resume upon those water rights and that is a rather considerable task.

Justice Byron R. White: Yes.

Mr. Kiechel: And I submit that perhaps the United States, because of its authority to tie may resort to protect the opposition for lack of knowledge or time and certainly, this would not contribute to the ordinary procedure, so that the new statute does provide certain complications.

Chief Justice Warren E. Burger: Very well.

You will have seven minutes after lunch Mr. Kiechel?

Mr. Kiechel: Thank you sir.

Chief Justice Warren E. Burger: Mr. Kiechel, you may --

Mr. Kiechel: I will reserve the rest -- remainder of my time if you please sir.

Chief Justice Warren E. Burger: Very well.

Mr. Balcomb?

Argument of Kenneth Balcomb

Mr. Kenneth Balcomb: Mr. Chief Justice and may it please the Court.

I think one of the most interesting and novel thing about the second case is the -- now, we say that they are identical.

I think I can establish that the procedures involved in adjudication under the old and the new law are identical is that the presence or absence of a judgment below that is in opinion that can be interpreted.

I don’t believe that it’s Judge Darrel’s opinion to which I will refer later on, the trial judge that is here.

I just believe it is Mr. Justice Grows’ opinion in 87 that is probably the subject matter of the discussion here likewise.

It’s interesting to note that under the old statute, the primary objection to the Government to being bound by the proceedings for at least, there stay adjudicated -- adjudicatory rights related to the size of the stream system or source of the water.

And this oddly enough is a situation which is never bothered them when they wanted to be plaintiff, but now only bothers them when they do not wish to articulate and do not wish to quantify their rights.

There are several circumstances that I know of where the United States is come in, I can point to the ones, two in Nevada, one of which was before this Court on the separate point that we could go yesterday to the extent that certiorari was denied, that was the Carson River case in Nevada.

Justice William J. Brennan: Have they ever brought one in Colorado?

Mr. Kenneth Balcomb: In Colorado, yes sir.

They, about the time that United States decided that did not want to subject themselves to state adjudicating procedures, there was pending in the District Court for Summit County, located at Breckenridge, two parallel adjudication procedures.

One, to adjudicate rights for irrigation and another one to adjudicate rights other than the irrigation, under the statute which preceded the 1943 Act which brought those two times the things all into one action.

And though the Colorado Supreme Court ultimately held that the Government had made a voluntary appearance in those proceedings and could thereby be bound, the United States selected to bring an action which for this lack of anything better to call it in the nature of the quiet title action.

In other words, a suit in equity to determine the Government’s rights to a reclamation project, the Colorado Big Thompson Project which had not by them, then completely submitted to the court of Breckenridge.

Now, the Blue River is a little bit larger than the Eagle River, but it’s the same kind of a system and it ends up by running into the Colorado River.

That would not have been even under their definition, a general adjudication because they were very choosy about who they joined, joining the conservancy district, the involve Northern Colorado, City and County of Denver, Colorado Springs and everyone else who got into that action.

Justice William J. Brennan: How long though was this Mr. Balcomb?

Mr. Kenneth Balcomb: The suit was initiated about 1952, I believe and then went to the decree by the stipulation in 1955 and it’s been amended a couple of times since then.

Oddly enough the way it became a general proceeding was that the United States removed the then pending adjudication procedures from the Breckenridge courts, District Court and Summit County and thereby brought in our view everybody on the Colorado River, even though it was said to be supplemental then.

It was a supplemental general adjudication pending in Summit County, they brought in the federal court and they thereby joined the users of the entire river and I’m satisfied they consider that they have decrees for the Green Mountain Reservoir, the Colorado Big Thompson collection systems and the right to transport this water through the mountains.

Justice Byron R. White: Was that -- that was tantamount to a -- an assertion by them that the Colorado court had jurisdiction?

Mr. Kenneth Balcomb: Yes, I believe so.

They have --

Justice Byron R. White: They have --

Mr. Kenneth Balcomb: Recognize --

Justice Byron R. White: They removed it?

Mr. Kenneth Balcomb: -- by removal.

And nobody in Colorado really seems to know the answer.

They appear at least in part still to be removed and has created a little bit of confusion and --

Justice William J. Brennan: You said a decree by a stipulation.

Is this to say that was settled, is that case settled?

Mr. Kenneth Balcomb: Yes sir and the United States was given the right and claim the initiation of construction in 1935.

Justice Byron R. White: Mr. Balcomb, may I ask before I learn too much about, I like to pursue it just one question further.

In connection with reserved rights which you seem to say your mind isn’t closed against anyway.

Would the regular rules of appropriation apply to those reserved rights in terms of what kind of conduct it takes to amount to an appropriation to a an appropriation for beneficial use?

Mr. Kenneth Balcomb: You mean something open note notorious or something to that nature Your Honor?

I judge not.

I didn’t -- I don’t wish to quarrel with Your Honor about not liking the word “reserve.”

I just say that it’s another was of saying the initiation of a water right and in this case, if I’m interpreting it correctly, the Congress initiates the reserve rights for a union reservation or forest reservation, the Wildlife refuge by making the withdrawal of the land and the water.

Justice Byron R. White: Yes, but they aren’t using the water for anything at the moment?

Mr. Kenneth Balcomb: So, neither is the city and county of Denver Your Honor and they claim water rights that they don not expect to put into operation until year the 2010.

Justice Byron R. White: I’ve never heard of the -- that took some doing, didn’t it?

Mr. Kenneth Balcomb: They got --

Justice Byron R. White: As far as the western slopers were concerned?

Mr. Kenneth Balcomb: Well, yes in some respect.

Justice Byron R. White: Yes.

Mr. Kenneth Balcomb: There’s nothing -- nothing in the law prohibits the acquisition of a right currently for use so far -- in the far distant future if you can show the need, the eventual need.

As the Colorado Supreme Court held, the court could not question Denver’s projections about population, nor do I think that the trial court really questioned the allegations and proof by the United States of eventual need for water on their reservations.

Justice Byron R. White: But that would just be a matter I suppose to the probably governed by federal law?

Mr. Kenneth Balcomb: Yes sir.

And in reality, I think they have little problem with most of them because on almost every circumstance, the water and the water right involved are totally within the federal reservation.

You would have to have their permission to do anything anybody else to interfere with it and they have complete control of it.

As I say, the objection in 87 related to the size of the water course, and yet in every situation for practical purposes except the Arizona versus California, where United States is been involved, that is been almost a comparable water course involved and created no real problem to them there.

In the instant case, it seems to relate to how much trouble they would be put to read monthly resumes and to appear once every 60 days if indeed, they have to.

That is kind of an administrative rather than judicial proceeding and not within the contemplation of the amendment.

I would observe with --

Justice Byron R. White: Mr. Balcomb, can I ask you another question please.

If the United States wanted to reserve -- wanted to remove, let’s assume that you’re right about jurisdiction?

Mr. Kenneth Balcomb: Alright sir.

Justice Byron R. White: And the United States then wanted to remove the case to the federal court?

Mr. Kenneth Balcomb: There are several decisions in which in some cases, they held the right of removal that was not present, in some they said, the right to removal was exercise is prematurely exercise, but it might come back after a clear federal question arises in the state court.

Justice Byron R. White: Yes, but what if it’s a reserved right that you’re arguing about?

United States asked to have remove the adjudication of its federal right to water?

Mr. Kenneth Balcomb: Oh!

I think it was in some of these cases.

The – In Re Green River case in Utah went back on remand by Judge Christiansen because he felt I think more under the theory of comity than anything else the court -- state court had the procedures, adjudicate it there.

If that with United States found could not get fairness with regard to some of its rights, then it might remove it for the fact.

Justice Byron R. White: But on the face -- on the face of the statute, it is a removable issue, isn’t it?

Mr. Kenneth Balcomb: On the face of the statute, it is.

Justice Byron R. White: Yes.

Mr. Kenneth Balcomb: So if you study the legislative history, you might draw an opposite conclusion, but on the face of the statute is not forbidden, I’ll say that.

Justice Potter Stewart: There was removal provision in the Bill at one stage as I read the briefs and that was deleted by Congress?

Mr. Kenneth Balcomb: Yes sir and I think in that connection, the Special Assistant Attorney General testifying about it pointed out the difficulties involved for people over far western slope to have to come clear to Denver Colorado.

Justice Potter Stewart: Yes.

Mr. Kenneth Balcomb: They thought -- then justice thought the removal provision was bad.

Justice Potter Stewart: That's what I thought.

Justice William J. Brennan: Mr. Balcomb, what’s your absolutely Government’s submission that the both the adjudication and the administration clauses are qualified by the provision as to appropriative rights?

Mr. Kenneth Balcomb: It’s speaks of the United States in two categories I believe.

One is the owner of the water right and the second category is in the acquisition of these other methods of acquiring ownership of water rights, and where the United States is owner, why they can be joined?

Justice William J. Brennan: What I have reference to though is that -- as I understand the argument, reserved rights are not embraced by the consent statute.

And because I thought, your colleague argued that both clause one, the adjudication of rights, in clause two, the administration of such rights are qualified by the provision where it appears that the United States is the owner over in the process of acquiring rights by appropriation under the state law?

Mr. Kenneth Balcomb: Because this does have a possible --

Justice William J. Brennan: Well do you agree with that?

Mr. Kenneth Balcomb: Do I agree with the Government’s position?

Justice William J. Brennan: Yes.

Mr. Kenneth Balcomb: I think that it covers everything is my position Your Honor.

Justice William J. Brennan: That it covers reserve rights too?

Mr. Kenneth Balcomb: That’s correct or by whatever name you might call it.

Justice William J. Brennan: And you say it covers everything?

You mean both clauses one and two cover everything or only clause one covers everything?

Mr. Kenneth Balcomb: Both of them.

Justice Byron R. White: You mean the consent statute covers both of them?

Mr. Kenneth Balcomb: Yes.

Justice William J. Brennan: That’s what I was talking --

Mr. Kenneth Balcomb: Yes sir.

It would do little good to require the United States to come in and adjudicate a reserved right if they then try to take out a priority which is the administration system and not be able to reach in the second time.

Justice William J. Brennan: Yes, but I thought -- I thought the Government’s argument was that the adjudication of rights does not include the adjudication of reserved rights?

Mr. Kenneth Balcomb: I know --

Justice William J. Brennan: That is because the clause dealing with the administration of rights, the Government argues is limited to water rights by appropriation under state law?

Mr. Kenneth Balcomb: Well then, the first one is meaningless.

I think I read two circumstances, either the United States is the owner and there’s adjudication in progress or the United States is the owner and like in the Quinn River situation, there’s an administrative process.

Justice William J. Brennan: Of whatever the right is, is that it?

Mr. Kenneth Balcomb: Whatever the right might be irrespective --

Justice William J. Brennan: Who braces appropriative over anything else?

Justice Byron R. White: What does administration mean in the -- what’s the difference between adjudication and administration of rights?

Mr. Kenneth Balcomb: Adjudication as we understand it in the western states is the legal court process through which you go to establish your position on the ladder of rights, your priority --

Justice Byron R. White: To assert your right?

Mr. Kenneth Balcomb: Yes.

Administration is the physical act by the division engineer, the state engineer or one of his employees of opening and closing head gates saying you can take your water now, you reservoir is full, the various items involved in the distribution of the water.

Justice Byron R. White: Now This proceeding we have going here is to establish a right, isn’t it?

Mr. Kenneth Balcomb: That’s the rights now, yes Your Honor.

Justice Byron R. White: Whether there’s a right exist or not?

Mr. Kenneth Balcomb: That’s correct.

Justice Byron R. White: That’s adjudicating?

Mr. Kenneth Balcomb: That’s right.

It determines all that you may turn so much water at a certain time into your head gate, if we reduce that something to the irrigation thing.

And I might further say that if Congress had really thought “Well, we should not adjudicate Indian rights or we should not have not – not adjudicate Foreign Service rights,” it was too simple to say so because it was called to their attention over the three-year period this was involved again and again and again by the Government witnesses, by letters to the committee and each time, concerned about the breadth of the waiver, they wanted it limited every time.

And Congress ignored all these and left it wide because I think Congress recognized that it was just as important to the citizens of those states that they have certainty in water rights and they could not have that certainty if the Government is not there.

And likewise, it was of most importance to the United States to have certainty as its water rights, and I think one of the examples of this that I’d like to call the Court’s attention to is a case which isn't mentioned too much by anyone and it’s also captioned In Re Green River adjudication versus the United States and it’s in the Supreme Court of Utah in 1965 and answers in part this problem to the state court award you reserve rights and what did you about if they didn’t?

This case is the successor to the federal court case decided by Judge Christiansen when he directed remand of the adjudication proceedings in Daggett County, Utah.

This is a relatively small area also.

In this proceeding after the United States got back in the state court, it had no reluctance to present for adjudication by the state court some 715 water rights.

Oddly enough, they were apparently the type of thing that is spring for stock watering matters of this nature which if we understand, what they did in Eagle County in 87 are the subject of the reservation, but they were there adjudicated as though they were state rights.

At the very tail end of the proceedings, they asked the trial judge to put some language into the decree indicating that all of the rights which were awarded by virtue of this decree would be subject to the general unspecified reservation of the United States for the Ashley National Forrest and the trial judge declined to do so.

They took the matter to the Supreme Court of Utah and the Supreme Court of Utah likewise declined to do so, pointing out that United States had volunteered into the -- into the suit in effect by consenting to be sued.

They have proved up on 715 rights and they were not going to allow them to have an articulated, unspecified, unquantified right that sat on top the whole adjudication and made everybody else’s rights uncertain.

That is clearly what this case does hold.

United States did not elect to bring that to this Court had they wished to change that result.

Justice William J. Brennan: Mr. Balcomb?

Was the consent statute passed as it was introduced or did it go through some modifications?

Mr. Kenneth Balcomb: Some modification.

There is the provision added to it that it does not consent to the joinder of the United States in suits between states like so often happens in this Court.

Justice William J. Brennan: Yes.

But ever made it --

Mr. Kenneth Balcomb: There was first put in it a tabulation of which the Government now talks about, and then that was eliminated.

Justice William J. Brennan: How about the first sentence?

Was that changed or was that passed and was introduced?

That’s the one with the consent given to join one for adjudication and two for administration?

Mr. Kenneth Balcomb: Punctuation only was added I believe and that was the subject of the reports, the second report from the Senate committee.

Now, the United States is said and had brought with it a map.

Now, this is a tremendously big job that if you say we got to go and adjudicate that we got to do and as I said in my discussion, it was brought out at least in connection with questions in my discussion, this matter of costing money and being a big job was thoroughly discussed with the committee and this was overlooked.

I submit though however that irrespective of the size of the job, it’s the obligation of the federal Government in a situation of this nature for the benefit of all of its citizens to articulate because the citizens need to know.

They can’t develop the state without knowing what these vast claims United States may have now to the water which arises in the states.

And irrespective its size, they owe the obligation to the citizen to come in tell him within his framework exactly what it is they claim and when they expect to claim it.

Justice Byron R. White: Do you have in the Colorado any priorities other than time of appropriation, if you have any priorities with respect to the type of use?

Mr. Kenneth Balcomb: Well, they’re all adjudicated for a purpose as well as time and quantity.

Justice Byron R. White: But assume, there’s a conflict between people for industrial use as against irrigation or as against municipal use?

Mr. Kenneth Balcomb: The highest and best use by the Constitution is domestic, the second is agriculture, the third of course is manufacturing industrial.

It doesn’t mean that a domestic user can go just take the water, he’s got to condemn and pay for it.

Justice Byron R. White: Right.

Mr. Kenneth Balcomb: And the --

Justice Byron R. White: Once it’s adjudicated, they own it till somebody condemns it?

Mr. Kenneth Balcomb: That’s right.

I don’t think United States Your Honor, those in quite that position is due to indicate.

They condemn -- in theory, they condemn at least domestic rights for agriculture purposes on the basis that federal law was paramount.

Justice Byron R. White: Right.

Mr. Kenneth Balcomb: With which I would concur, they can do it.

I would like to conclude if the Court please with the a comparison so to speak of the new statute which I view to be identical for practical purposes of the 1943 Act and the 1943 Act is characterized in Mr. Clark’s work on water rights is being the same Colorado system that’s been in existence since 1879 when it first started.

In this fashion, the Court will remember Pacific Livestock, in discussing what a statute to this nature does said that that statute provided for notice, that is the Oregon statute.

Our statute provides for notice.

It is as the proceeding ahead of it was and in rem proceeding, dealing with -- still dealing with the stream, still putting on the ladder of appropriations in order of priority everybody’s rights.

A Sworn statement in the Oregon case was made and that statement was open to the public and opposition could be made as to that statement, that’s the identical procedures we now have in our code.

The statement is filed with the water clerk and it’s referred to the referee.

You may protest it.

You may have hearings.

You may do all those things.

The board in Oregon made findings and referred the matter back to the court and under Oregon statute, the referee does this.

In other words, referee has taken the owner’s -- pardon?

Justice William J. Brennan: What is the administrative proceeding?

What is the referee, is he judicial officer or --

Mr. Kenneth Balcomb: Yes sir.

He is supported by the --

Justice William J. Brennan: What is it, like master is he?

Mr. Kenneth Balcomb: I would say yes sir, special proceeding, but it’s nonetheless --

Justice William J. Brennan: Who makes the final adjudication, the judge is that it?

Mr. Kenneth Balcomb: The judge does.

Justice William J. Brennan: I see.

Mr. Kenneth Balcomb: He enters a -- there is a little bit of difference about this in Colorado, but primarily, he is supposed to enter semi-annually a master decree covering all the matters with --

Justice William J. Brennan: Well, how’s the whole proceeding initiated, by something that’s filed in the court?

Mr. Kenneth Balcomb: Someone goes in and files a claim for lack of better word.

They asked for the determination of the water right.

Justice William J. Brennan: Where does he file it?

Mr. Kenneth Balcomb: With the water clerk who is the clerk of the court, and then the court governs the whole division.

Justice William J. Brennan: Oh, he is the clerk?

Mr. Kenneth Balcomb: Of the court.

Justice William J. Brennan: I see.

So, it’s actually a proceeding and initiated and progresses through the court?

Mr. Kenneth Balcomb: Yes sir.

If there’s a big fight below in the referee’s hands, he refers it back to the court for determination.

Whatever the court does is to be done is to be done under our rules of civil procedure.

Justice William J. Brennan: When is it subject to removal of the federal court?

From the time of the initial claim is filed with the water clerk?

Mr. Kenneth Balcomb: I think as soon as United States could show that its rights were being interfered with, and that the state court certainly, if it goes into the position to handle them, might grab go ahead and handle it.

They make the point you understand Your Honor that the statute allows for protest but not for application.

That is the United States has no chance to urge its rights, and this is strictly not true.

The United States anytime it wants to one of these proceeding files its rights and sue --

Justice William J. Brennan: In that proceeding?

Mr. Kenneth Balcomb: In that year with the same clerk and goes before the same referee and gets the same judge and a decree.

And he would then insert or direct the insertion to the state engineer of their rights, plug them into the ladder of priority.

And they have the right of appeal and everyone does to the State Supreme Court.

In other words, we have a judicial system and as I say, we’ve taken this onerous burden of digging up the evidence off the court and given it to the referee to save the court time and courts are all too busy to spend days and months on adjudication procedures.

I would like to say in final conclusion unless there are other statements that in as true sense of the word as use in Pacific Livestock as use the word general adjudication is used in Dugan and Miller versus Jennings and the like, there never really has been a true adjudication of water rights in Colorado or any of the other western states when the United States is not a party.

And they have picked the word general out of the opinions of this Court and opinions of other courts and said they don’t have a general proceeding there because they do not have everyone before them.

And the reason, if it please the Court, that everyone is not before them is because United States will not join.

There the one party, these adjudication procedures in Colorado and the other states that keeps it from being a general adjudication, and that keeps the certainty of water rights out of the law entirely because as they indicate, we have these large areas as shown on the map that we're entitled to use water in certain ways, but we want to keep it a secret until such time as we decide to put it to work and in the meantime, no one else can do anything with the water at all with any certainty.

Thank you Your Honor.

Chief Justice Warren E. Burger: Thank you Mr. Balcomb.

Mr. Kiechel, you have seven minutes left.

Rebuttal of Kiechel

Mr. Kiechel: Thank you Mr. Chief Justice.

Justice William J. Brennan: What about this removal?

Do you agree that might be removed as quickly as Mr. Balcomb suggests?

Mr. Kiechel: I wish I could be as confident in saying that it is removable.

Justice William J. Brennan: Have you ever tried it?

Mr. Kiechel: Yes, we have Your Honor.

It was tried in the In Re Great Green River case and there, in a lengthy opinion, Judge Christiansen in that court held it not to be removal -- removable.

There was in the legislative history as been pointed out a specific right of removal which was stricken.

Justice William J. Brennan: Incidentally what were the rights claim by the United States in that litigation, reserved or appropriate?

Mr. Kiechel: Those were rights including reserved rights --

Justice William J. Brennan: Including reserve.

Mr. Kiechel: -- on federal forest, national forest.

And there has been -- I can’t -- there have been certain case is removed brought under this statute, but most to those had been where the Government officers have been joined.

And of course under the federal removal statute, there’s a clear right to remove one in which the Government officer is a party defendant.

With respect to the procedure in Colorado, the monthly procedure under the 1969 Act, Mr. Balcomb makes the point that it is subject to judicial review, and I would point out however that this requirement which is continued or this prohibition which is continued in Colorado law whereby the no right prior right can be awarded in a supplemental on going adjudication applies to the judge as well as it does to the referee.

And it’s not just the burdensome nature of that monthly procedure that it’s of concern with respect to the legislative intent on 666 and is relevant to it, but it is the fact that it is more administrating than judicial.

And I think it’s quite clear that Congress in enacting the statute consenting that the United States could be joined had in line a judicial proceeding.

And so, I would say with respect to the -- what question about the conduct of the United States as plaintiff that was the United States does as plaintiff is not dispositive of the issue before the Court, that is what kind of proceeding Congress consented to the joinder of the United States as party defendant.

I will say however in addition to that that the United States found out the hard way about a general adjudication that it did in the Fallbrook litigation I referred to earlier on Santa Margarita River undertake to bring the kind of an action.

Mr. Justice White invited a question earlier that is an action against only the principle user, and it was there to determine.

This is not a 666 case, this was a case brought by the United States as a plaintiff, but the Court of Appeals for the Ninth Circuit told us very loudly and clearly that the way in which adjudication could be done was to join all water users on that river system and have a contest in the determination among all users.

Justice William J. Brennan: Are you suggesting that we have to decide in this case whether this Colorado procedure is a judicial or a administrative proceeding?

Mr. Kiechel: I’m saying --

Justice William J. Brennan: In order to decide the --

Mr. Kiechel: I’m sorry.

Justice William J. Brennan: -- just wanted the consent statute?

Mr. Kiechel: I’m saying Mr. Justice Brennan that Congress intended to consent to the joinder of the United States only in judicial proceeding.

Justice William J. Brennan: Well, now accepting that premise, now you’re suggesting that we have to decide whether this Colorado procedure in this case was or was not a judicial proceeding?

Mr. Kiechel: Yes and I think that you should -- you can decide by reference to the Colorado Act is an administrative procedure.

Justice William J. Brennan: But you’re suggesting we have to decide whether is or isn’t a judicial proceeding?

Mr. Kiechel: Yes in --

Justice William J. Brennan: If we accept your premise that Congress meant the consent statute to apply only if judicial procedure.

Mr. Kiechel: Yes Your Honor.

Justice John M. Harlan: That means that you think you might prevail on one case and not on the other?

You might prevail on the case you’re now arguing and loss the other one?

Mr. Kiechel: No, I think there good and sufficient reasons -- different reasons for prevailing in both if Your Honor please.

The first case as was discussed involves a matter of the river system; that is not involved in the second case.

Justice John M. Harlan: For as far as the administrative proceeding, your argument is concerned, with regard to this case is different from the other case?

Mr. Kiechel: Well, I think that the common denominator with respect to Colorado law, that is that the Colorado Water Court where there it be Water Division 5 or water district number 37 cannot accord the United States its true priority, it’s rightful priority for its water rights.

It is a good and sufficient basis for concluding that Congress could not have intended to subject the United States to either such procedure.

Justice Potter Stewart: So in other words, putting my Brother Harlan’s question a little different way. If you prevail in the first case on your basic arguments, then we -- then you also prevail in the second case and we need not reach any question about whether it’s judicial or administrative in the second case, is that right?

Mr. Kiechel: Yes Your Honor.

Justice Hugo L. Black: May I ask you a -- state exactly what the Government has at stake if it loses this case?

Mr. Kiechel: If the Government loses --

Justice Hugo L. Black: If the Government loses this case or the other case, what does it lose?

Mr. Kiechel: It loses the under our view of the Colorado Supreme Court opinion, possibly it’s right to present, submit and prove up on reserved rights of the United States.

Justice Hugo L. Black: You mean they could cut off your rights?

Mr. Kiechel: That’s quite strongly suggested by the Colorado Supreme Court.

Justice John M. Harlan: Depends what we wrote in the opinion?

Mr. Kiechel: Yes Your Honor.

Chief Justice Warren E. Burger: Mr. Balcomb didn’t seem to -- I think you would lose that right.

Mr. Kiechel: Well --

Chief Justice Warren E. Burger: He and you do not quite agree on the reading of the Colorado Supreme Court opinion about that?

Mr. Kiechel: I’m quite concerned of -- please Mr. Chief Justice that the Supreme Court of Colorado has referred to the reserved rights of the United States as mysterious and causing chaos and in other words which indicates a certainly a hostility toward those rights.

Justice Byron R. White: Well, they are rather mysterious?

Mr. Kiechel: No Your Honor, they’re not.

Justice Byron R. White: Well, they were until you sat down and quantified them?

Mr. Kiechel: Well, they were quantified in Arizona v. California and --

Justice Byron R. White: Well, I know but did you find that in the least time, I just wanted to case that you’re rights what you say you reserve rights are on equal river system?

Mr. Kiechel: Well sir, the oil shale reserve is an example.

Until there is a determination or science permits a determination of how oil shale can be recovered or how oil can be recovered from shale in commercial quantities. It’s not known how much water will be required for that reserve.

Justice Byron R. White: Maybe mysterious isn’t the word, but --

Mr. Kiechel: Undetermined --

Justice Byron R. White: Very good example, where there is very -- an unknown.

Mr. Kiechel: Undetermined in certain instances.

Justice Byron R. White: That’s right.

Chief Justice Warren E. Burger: If they have used terms like uncertain, undetermined in court, you wouldn’t be quite as disturbed as by the invidious implications that you get out of mysterious, would you?

Mr. Kiechel: I agree.

Chief Justice Warren E. Burger: Very well.

Thank you Mr. Kiechel.

Thank you Mr. Balcomb.

The case is submitted.

Featured:

Hughes v. Washington - Oral Argument

Thu, 23 Aug 2012 18:10:36 +0000

Case:

Hughes v. Washington

Media File:

15_19671106-argument.mp3

Related Transcript:

15_19671106-argument

Transcript:

Argument of Charles B. Welsh

Chief Justice Earl Warren: Number 15, Stella Hughes, petitioner, versus the State of Washington.

Mr. Welsh.

Mr. Charles B. Welsh: Yes, Your Honor.

May it please the Court.

Chief Justice Earl Warren: Yes.

Mr. Charles B. Welsh: After many years and many miles, we approach this Honorable Court with depreciation for the permission granted.

The problem submitted to you, we deem, to be of basic simplicity whether federal law continues to govern the title to imperceptible accretions added to uplands acquired from the United States Government by patent.

Petitioner, Mrs. Hughes, is the owner of a small unimproved track of land of the western coast of the State of Washington bordering the Pacific Ocean.

She, on the other hand, represents in essence many hundreds of individual and municipal ownerships not only in the State of Washington but in all other similar situated owners and properties and all public land states of this union.

We submit that the problem before you is not academic, it is real, it is substantial.

We're dealing with land basically title to land.

Justice John M. Harlan: This is not a titled land.

Mr. Charles B. Welsh: In effect it is, Your Honor.

Justice John M. Harlan: Now that I know --

Mr. Charles B. Welsh: Not as such, no.

Justice John M. Harlan: Why?

Mr. Charles B. Welsh: No.

Justice John M. Harlan: I know you got a certain time before us.

Mr. Charles B. Welsh: Right, Your Honor.

Now, in a short time ago in 1966, these owners were advised and informed by judicial fiat that the physical characteristics of their waterfront property had been changed.

Likewise, the theory of the law under which this land was purchased by the Government has been changed.

Now, the theory of the law of accretion antedates the commonly law, probably enter dates of the Justinian Code.

It is -- it has been the law of nations.

We complain bitterly, the Supreme Court of the State of Washington changed this law 75 years after the fact and hundred years after the time of acquisition.

Now, at the time of acquisition at until statehood in 1889, counsel freely admits that this law, this theory bound the United States as grantor and us as grantee.

Our line were clearly established by a judicial precedent.

Our western or seaward boundary line is the line of being high tide and that is established by the only known and a certain method that's been advanced to date.

That is the theory or the formula of the United States Coast and Geodetic Survey.

Now, to us, it is not a belated action.

It is an action grounded without precedent.

Certainly, the counsel freely admit also that there is no federal case in any federal court lending support to this theory of the Hughes case even by inference.

In our opinion, there is no case previous to Hughes in the State of Washington that lends any support or credence to the theory of the Hughes case.

The Hughes case says not now but in 1889, we took your property.

The property is no longer bounded by an ambulatory boundary line as fixed by the natural movements of the tide of the Pacific Ocean.

This is fixed and immovable as of 1889 because we say so.

Now the formula that we have it up is this.

It is the line of ordinary high tide.

Now, the Honorable Justice Weaver, the writer of the majority opinion in Spencer a page and a half of defining this line of ordinary high tide.

I submit Your Honor, his definition follows no judicial precedent and is based upon no scientific or no formula.

This is his own.

There is no engineer can lay out a line based upon that formula nor any lawyers advise his plan under this judicial formula where that line will lie.

The Honorable Justice equates this line with the line of vegetation.

The line of vegetation has never been known in the history of the world to be equated with the line of being high tide on titled boundaries where the reason is natural.

The reason is common sense.

Your winter Europe, high tides, your storm tides wash away any vegetation that is apparent and consistent on lakes for example, none tidal water boundary.

Now --

Chief Justice Earl Warren: Mr. Welsh, what is the purpose of the line of vegetation as stated in other precedents?

Mr. Charles B. Welsh: The purpose of the line of vegetation, Your Honor, it is unchangeable and fairly accurate.

It remained so in all water boundaries of inland lakes or rivers that are unaffected by the tidal flow.

The tidal flow is so vast that this accretion or this vegetation land simply will not remain static.

Now, this is a scientific truth.

This is an actual, visual matter of observation on these ocean beaches.

In one tide, it will wash away miles of that sort of vegetation to the depth of several hundred feet.

The vegetation was there the day before it has not existed today, therefore it becomes inaccurate.

It is not used.

Now, I do not propose to argue our position.

I shall simply try to explain.

We bought to the United States Government the deed ran to the Pacific Ocean and to our areas it assigns forever.

We understood in any layman, any patent deed well understood, he was buying property bounded by the Pacific Ocean and not subject to an intervening title on upland subject to sale, lease, commercial use by some agency of the State of Washington.

We believe we can rely with confidence on the wisdom of this Court.

We believe that it will follow its own precedent particularly the Borax case and particularly this case refusal to review the Circuit Court of Appeals and the Ninth Circuit, United States versus Washington.

Justice Hugo L. Black: Can I ask you how much actual land is involved in this case?

Mr. Charles B. Welsh: Your Honor, this varies from probably a minimum of 500 feet to three quarters of a mile in depths between your dry, sandy beach land to your vast hard sands uncovered by the flux and influx of the tide.

Justice Hugo L. Black: What do you mean?

The boundary line has became that much -- it is recognized by accretion for 500 feet?

Mr. Charles B. Welsh: Under as a minimum.

Justice Hugo L. Black: As a minimum.

Mr. Charles B. Welsh: As a minimum sir.

Chief Justice Earl Warren: Is the federal patent, the release of federal patent is on explicit reference to accretion.

Mr. Charles B. Welsh: It is not sir.

Chief Justice Earl Warren: So that's a constant.

Mr. Charles B. Welsh: As an attribute of its title.

Chief Justice Earl Warren: Mr. Weisl.

Argument of Edwin L. Weisl, Jr.

Mr. Edwin L. Weisl, Jr.: Mr. Chief Justice and may it please the Court.

The United States is in this case by invitation of this Court at the time of the filing the petition for writ of certiorari when our views were asked to be submitted to the Court on this question.

Our examination of this case and the issue presented shows a very substantial federal interest in its outcome which I would like to elucidate for you for a moment.

First of all and most important, the Federal Government is perhaps the largest grantor of lands on the Pacific Coast as this Court well knows his republic land states and much of the land indeed the substantial part of it was at one time in federal ownership prior to statehood.

Therefore, the integrity and the interpretation of federal patents of land is here in question and has been placed in substantial question by the decision of the court below.

Secondly, the Federal Government is the owner at the present time of considerable waterfront coastal property, literal property in the State of Washington some 200 miles.

Most important of all in this connection is that we hold much of this land and trust for Indian tribes and under the policies of the Federal Government as they now exist to a lot lands to Indians over the years and make them the actual fee owners.

The fact that a right that we maintain they have to future accretions is taken away by this case or will be when the allotment is made constitutes an important federal problem with the Federal Government here as trustee.

In addition, acquisitions of land for private purposes from private citizens are contemplated if the rule of the court below obtains the Federal Government will not be able to get these future accretions without purchasing them or condemning them for the state for what I am sure is a not inconsiderable sum of money in view of the historic nature of this coast line which seems to be characterize by daily imperceptible accretions building up over many years to quite sizeable amounts of land.

The law, I submit, is quite clear as to whether these accretions, the right thereto can be taken away by state action when they derive from a federal patent or other form of grant.

This Court has taken up this issue in its various forms on many occasions.

First, let me say that this Court has considered the question of whether a right to a future accretion is a vested right, one that continues and cannot be taken away.

In an ancient case, the County of St. Clair cited in our brief that this decision has made a right to future accretions of the imperceptible kind is deemed to be an inherent right of the ownership of property as to what law obtains this Court in the Borax case cited many times in all briefs before you has decided quite clearly that when a federal grant is being interpreted whether or not the Federal Government remains the owner of any of the land in question, the measuring line as between tidal waters and upland waters is determined by federal law.

And in Borax, that measuring line was held to be the line of being high tide determined in accordance with proper geological measurement which is I submit quite capable of being ascertain under current practice.

I add parenthetically that Borax need not be the rule forever if more accurate scientific measurement are being developed.

I'm sure that Mr. Chief Justice Hughes in that case simply selected this rule because it was the best scientific one then available.

Borax simply fixed that line as between an upland owner and the state as owner of tide lands.

It wasn't on an accretion case.

However, I can see no distinction between accretions and the mere fixing of the line between the upland owner and the state as the owner of the tide lines.

The consequences to each party in both Borax and an accretion case are large and a considerable body of land would have gone to the upland owner under his contention in Borax had the line not been fixed where it was in accordance with federal principles.

I think one of the important arguments that the state makes contrary to our rule is that these accretions lie in the future and that many things can intervene so that these accretions will never occur.

They're trying to equate the petitioner Mrs. Hughes with an ordinary riparian owner and they are talking about riparian rights and I think it is most important in making the legal distinction in deciding this case to realize that accretion is not a riparian right for this reason.

The riparian right is a right in an owner bordering on stream, bordering on a body of navigable water to make some use of that water of his location as against other private owners.

He can build here, work out so to speak.

He has a right to use water from the stream.

He has the right to use it for navigational purposes but this right, it has long been held, always been held in common law countries, this right can be taken away when the sovereign can demonstrate some overriding public need for these waters.

It is as Mr. Justice Holmes said, a permissive right he said that in a case called Stevens against Arnold cited in our brief and he makes this very important distinction which is now very important in the Hughes case, in Stevens against Arnold for it distinguishes these riparian rights of which I have spoken as permissive rights as opposed to right to accretion which is indicia of property.

Another point strongly favoring the Federal Government's position here and the application of federal law to the accretions is the fact that this is a federal patent, a federal instrument and it's long been held by this Court that in respect to federal instruments, federal law applies as cited in that law review article, Professor Corker has cited again in all of our briefs.

He realizes that there is certainly a clear field of trust aspect to a federal patent.

Justice John M. Harlan: May I ask you a question?

Mr. Edwin L. Weisl, Jr.: Yes, Mr. Justice Harlan.

Justice John M. Harlan: By the readings of the State Constitution you relied on, accretion can be an abrogation to riparian rights, isn't it?

Mr. Edwin L. Weisl, Jr.: Well Mr. Justice Harlan, I must say that I do not -- although I think this Court is foreclosed from going into the interpretation of the State Constitution since we have heard from their highest court.

I do not read that constitution to deprive an upland owner of the right to future accretion as I --

Justice John M. Harlan: That can construe by the way --

Mr. Edwin L. Weisl, Jr.: Yes.

Justice John M. Harlan: -- from the state court and we are bound by that but what I'm getting at is with what the state has said here is that you recognize and appreciate the clean indicated patent and the day that the state has the right to (Inaudible) recognizing though that it will not recognize (Inaudible), isn't that the essence of it?

Mr. Edwin L. Weisl, Jr.: That is the essence of their position and I think Mr. Justice Harlan that in this instance, it may come about because of a desire to extend this riparian rights concept to something that is not actually such a right.

No one questions the state's right to do lake water to prevent future accretions.

No one questions the state right to deny owner's access to navigable waters.

This can be done in pursuance of a public purpose.

Here, however, they are simply saying we're redefining a boundary which in the federal deed was expressed as the Pacific Ocean which federal law has interpreted to mean high tide.

That line is simply moved and in accordance with the very ancient principles that everywhere else in the United States except Washington continues to obtain, they are saying that they can cut it off.

This, I submit, they cannot do and one of their justifications for cutting off or attempting to cut off this right is they say that the state have tide lands and that because of accretions, these tide lands have been taken away from them.

This has deprived the state of their equal footing with other states to own their own tide lands.

This is wrong and it's wrong for a very simple reason.

The state has lost no tide lands whatsoever as a result of these accretions.

Tide lands are the line between mean high tide and low tide as they exist at any given moment.

Picture if you will a moveable -- a belt consisting of the tide lands as accretion comes to the shore, this belt simply moves seaward.

Low tide doesn't stay where it is just because the land on the land where we cited accreted, low tide is probably just as far from the high tide line as it was before.

This belt has simply moved out to sea.

And I submit that the accretions may have resulted in the state making very substantial and important gains to its title because as that line of low water moved seaward as a result of the accretions, the three-mile limit of that state as defined in the Submerge Lands Act moves that further out to sea.

In accordance with what we all know of the developing exploration for and discovery of the valuable minerals in this three-mile belt of territorial sea of a state.

These accretions may result in the state gaining until it reaches for itself as a result thereof.

The State by this case in Hughes is merely asking to obtain more at both ends on the seaward and the landward side of its tide lands.

This is not something contemplated by Pollard against Hagen which simply confirmed to the states their tide lands.

Their tide lands I submit still exist.

Their tide lands have not been in any way diminished by the accretions and the state here has attempted to obtain valuable shorefront property in a late date in history because of some public purpose in acquiring such shorefront.

It is an excellent way of doing it -- to do it by judicial decree rather than the payment of just compensation by condemnation.

Justice Byron R. White: Could you tell me Mr. Weisl what the practice was or what the law -- the federal law was in connection with the grant by the United States in a territory before that territory became a state, the grant of land on a navigable stream by any kind of the description of what did that federal patent carry with it with respect to (a) accretions, (b) title to the streambed?

Mr. Edwin L. Weisl, Jr.: As to accretions, the law was that the upland owner was entitled thereto.

The question of ownership to the bed of the navigable stream was one that really was not resolved until Pollard against Hagan.

I believe that the Federal Government in certain cases thought that it could convey to upland owners the streambed and I think the Brewer-Elliott case which we cite indicates an attempt give in, in as part of the streambed.

In point of fact that Pollard came along, the United States covered that it was holding the bed of navigable streams entrust for the new states as they came into the union and that they could not in fact convey it to private owner.

Justice Byron R. White: Well, and I gather that a good number of cases in this Court indicating a federal grant of land located within the state.

Are they construed in accordance of the law in the state with respect to riparian right?

Mr. Edwin L. Weisl, Jr.: Yes, Your Honor.

Justice Byron R. White: And you do then -- this have to distinguish between these cases and the cases of accretion.

Mr. Edwin L. Weisl, Jr.: I think it is necessary that they'd be distinguished.

I don't think we're under any difficulty in so doing.

Riparian rights really are akin to zoning rights and the whole bundle of permissive rights that a property owner is allowed to do provided it does not interfere with some greater public use.

Accretion really is a boundary question.

It's not a question of what the owner may do with his property.

Not a question to what extent he may invade tide lands for the purposes valuable to him.

It is really quite a different thing.

The state very ingeniously in the court below I think try to equate accretion with normal riparian rights but I think that is not the case.

I -- I earnestly commend Mr. Justice White your attention to Stevens against Arnold where Justice Holmes makes that very distinction.

The mere fact that an accretion also maybe cut off by the exercise of the state's paramount right to the use of its own tide lands, I don't think obtains here.

The state has not chosen to do that.

They have not built the major public improvements for example of considerable extents so as to cut off Mrs. Hughes and her co-owner to similar property from the Pacific Ocean.

What they have done is made it very possible for some new private owner who might buy from the state to build in front of her despite the fact that her boundary is suppose to be in her grant, in her federal grant of the pacific ocean.

I thank the Court.

Chief Justice Earl Warren: Mr. Hartinger.

Argument of Harold T. Hartinger

Mr. Harold T. Hartinger: Mr. Chief Justice and may it please the Court.

The case that's before the Court today is unusually complicated by the fact that it's hard to communicate in understanding of the problem that the Washington Supreme Court was attempting to solve.

What we have in the State of Washington is a westerly boundary line which borders on the Pacific Ocean.

Now, the State of Washington neighbor to the south is the State of Oregon, the Columbia River divides Oregon from Washington.

Then from the Columbia River north, we have a long sliver, a long piece of land which runs almost directly north called the Long Beach Peninsula and it's separated from the mainland via Bay, Willapa Bay.

Then you proceed north to another stretch of ocean beach until you come to Grays Harbor which is another inlet and then the beach continues north until the Straits of Juan de Fuca.

Now the strait is the entrance to the Great Puget Sound and Hood Canal, the large and internal waterway of the State of Washington.

Now, the area we're talking about is that area of the state which borders the Pacific Ocean and the reason we're talking about it is that from the Columbia River to the tip of the Long Beach Peninsula and then that little beach between Willapa Bay and Grays Harbor and then a portion of the beach north along the Olympic Peninsula has been building up by a slow imperceptible accretion.

Alluvium has been deposited along the shore.

What -- well, I suppose the boundary no longer is the boundary.

The boundary is moving to the west.

It's moving seaward.

Justice William O. Douglas: Are there areas along the coast further north for the -- under the movement of the east.

Mr. Harold T. Hartinger: The -- Your Honor knows the northern part of the coast is the Olympic Peninsula and the coastal area is part of the Olympic National Park.

Justice William O. Douglas: The state domain of whom?

Mr. Harold T. Hartinger: And in this area where the Olympic National Park is concerned, the accretion problem does not exist.

The accretion then commence --

Justice William O. Douglas: What I'm getting is what are the landing zone -- the high tide of moving east and the high tide line?

Mr. Harold T. Hartinger: Oh!

No.

I -- in the area adjacent to the Olympic Peninsula, the boundary has remained constant so far as I know.

Inside some of the bays as for instance inside Port Willapa in an area that we're not concerned with there has been eroded.

Justice William O. Douglas: But if the tides -- the toning of the water was carrying the lands away and established a new high tide line to the east and that land was privately owned, would that just take from those?

Mr. Harold T. Hartinger: No, it wouldn't as I will explain the state law, it calls for a fixing of a permanent line so that the state either loses when there is accretion moving the line westerly nor gains when there is an erosion moving a line easterly.

Now, I -- now the reason that this case is so important to the state is that this is the ocean beach for the State of Washington.

This is the ocean recreational area for the State of Washington.

This is the part of the state where the people have always used the ocean and since 1901, the beach has been formally dedicated to the public.

Now, I have on the board a large diagram.

Justice Hugo L. Black: Can I ask you.

This seemed nothing with the accretion that goes all around the United States or is it peculiar to the State of Washington at this time at the Atlantic.

Do they have --

Mr. Harold T. Hartinger: If it is --

Justice Hugo L. Black: -- the problem of this kind.

Mr. Harold T. Hartinger: Well, this will be one of the problems that the Court will want to -- can turn itself with.

Now, we're going to be talking about state law and then the question is, is there some federal reason, is there some federal ground whereby this Court without a statute directing it to do it without a constitutional provision compelling it to do it.

Whether this Court is going to step in and change the state law.

Now, if the same thing happened on the --

Justice Hugo L. Black: I really wanted to have it further but other than that district problem is peculiar to the State of Washington, this place is this accretion going east.

Mr. Harold T. Hartinger: I think probably for such extensive areas, it might be unique but I'm sure that there is the problem of accretion.

But if there were a problem of accretion --

Justice Hugo L. Black: Whether there is not a problem of accretion eastward or westward when you get to the East Coast.

Mr. Harold T. Hartinger: Well of course, if it would be the same principle that we have here, the land would be building out to sea, it would be building east on the Atlantic whereas it builds west on the Pacific where we are.

But as we will find out, no one contends that this Court would have any concern at all with that eastern boundary and this will be part of our problem to explain to the Court.

Justice Hugo L. Black: Why?

Why is it different?

Mr. Harold T. Hartinger: Well, the position that's raised by the petitioner and supported by the Solicitor General is that the rule that they're asking this Court to intervene solely on the ground that Washington is a public land state solely on the ground that the property we're talking about here today was owned by the Government until 1866 but not since.

The Government is private with all title to this property in 1866.

Justice William O. Douglas: Is there any problem that would be common with the last two Oregon and California?

Mr. Harold T. Hartinger: If -- if perhaps could be common with Alaska or Oregon.

It will not -- the Government's or the Solicitor's position and petitioner's position would not affect California.

It would not affect Texas.

It will not affect the Gulf States.

It will just be the states that I mentioned.

Now I --

Chief Justice Earl Warren: Suppose the use of the states tide lands affected the erosion one way or the other, would you still say that the accretion belonged to the state?

Mr. Harold T. Hartinger: Yes, I would Your Honor.

This is not the fact but --

Chief Justice Earl Warren: No, but it could happen in any place along that coast --

Mr. Harold T. Hartinger: Yes, and --

Chief Justice Earl Warren: And it has happened along that coast hadn't it?

Mr. Harold T. Hartinger: Not to the consequence of the State.

Chief Justice Earl Warren: Well, I have in mind two cities in California along the coast.

One in Santa Monica and the other Redondo Beach and one the city who with the help of the state put in a breakwater which caused an accretion, that's in Santa Monica caused an accretion very similar and that which we have in this state now.

Now the high tide is almost quarter of a mile while they're out to see than it was 30 years ago.

Mr. Harold T. Hartinger: I suspect --

Chief Justice Earl Warren: I've -- then I have in mind the Redondo Beach situation where the city and the State put in breakwater and it tore away the land and tore away most of the buildings that were facing on the waterfront before that.

Now, with that change does the state gain that land as accreted?

Mr. Harold T. Hartinger: Yeah, under Washington law which may not be a general law.

Under Washington state law, if obstructions are placed in a navigable stream so as to carry away a bank that constitutes an unconstitutional damage in taking the property.

It's a -- if this is Washington state law under the Washington State Constitution so then if the state would build a bulk head to divert the stream and to carry away land that would -- the state would have to pay for it.

Now, there are two issues in the case and I can best illustrate the two issues with the large diagram which is on the board and I want to digress for a moment, the large diagram is a picture.

It's -- it's not drawn to scale.

I'm using it simply because the exhibit that is before the Court is down below there and it's not large enough for me to see it and I'm sure the Court can't read it.

Now, Mr. Miller is with me here, Mr. Miller point to -- on a large diagram a line which represents in the underlined.

Now, what we're dealing with is property which would be to the right or the east of the underlined as originally surveyed by the surveyor general for the United States, well, those lands were public lands.

From that point to the west, Mr. Miller -- the next line that's marked on there represents a point to which the build up of the land had proceeded from the time of original meandering to the date of Washington statehood which was 1889.

From that line then, we move to the next line where we still represent an area of build up by accretion.

The area between the last two lines represents the build up that took place during statehood or after 1889.

Then from the point Mr. Miller is pointing to now, we can go west to the -- to a line which represents the line of mean high tide, calculated according the U.S. Coast and Geodetic and then of course westerly of that line is simply a beach.

Now, in this case, we have a title dispute and it concerns the lands which were formed by accretion since statehood that is the area that's been pointed out now.

We also have a dispute over the top portion of the beach proper, the area between the line there and the line up above.

The line on the left again is the U.S. Coast and Geodetic mean high tide.

The line on the right is the line of vegetation.

Now these two lines are different.

Greatly, when we talk about the vegetation line which is the top line, which is the line which marks the limits of tide lands according to Washington law.

We're talking about a line which the water impresses upon the soil by covering it for sufficient periods of time to destroy vegetation and to make the lands value this for agriculture.

This definition is the same definition which the State of Washington uses to locate water boundaries of lakes, and rivers of streams, it's the same definition which the United States uses when it measures the extent of its navigational servitude.

It's a commonly understood concept.

It's a commonly applied concept and that marks the limits of tidelands according to Washington Law.

The second line, the U.S. Coast and Geodetic line is a mathematical computation on the west coast of the United States we have tides -- high tides twice daily.

I understand that this is the situation similar phenomenon on the Atlantic side of the United States whereas in the Gulf of Mexico there is but one high tide and low tide per day according to the classifications of the U.S. Coast and Geodetic.

Now, twice a day then the tides flow from the left to the right up the beach.

One of these tides is higher than the other tide.

So we have one higher high tide, one lower high tide.

And these high tides then that we have actually flowing on the beach are converted to mathematical calculations by the U.S. Coast and Geodetic which eliminates any action on the water by spacious, by winds, by storms, by run on the beach, it reduces tide level to a mathematical representation of the forces which the sun and the moon exert upon the water.

It's a theoretical concept so then this is what Professor Corker calls the waveless ocean from which they start to work their formula.

Now, then they take the -- they take the changes in the tides, their formulas and spread them over a year, a period of 19 years and then they calculate an average so they will have these averages.

They will have mean higher high tide with --

Justice Byron R. White: With this including with the part of the case all of these would be irrelevant.

Mr. Harold T. Hartinger: No, no.

The -- as a matter of fact, the difference between -- the difference between mean high tide and the line of vegetation is the major difference between us.

The area of the beach that --

Justice Byron R. White: You mean the accretion is saying is really no --

Mr. Harold T. Hartinger: Well, the accretion matter is a major issue but it involves a 175 feet of -- above the beach.

Justice Byron R. White: Yes, but it's still going on with --

Mr. Harold T. Hartinger: Yes, it is.

Yes, it is and if we don't, we do not wait.

But if --

Justice Byron R. White: The vegetation line is really -- if you want it to be a permanent line that will go wherever put it into accretion.

Mr. Harold T. Hartinger: Yes, I -- the vegetation --

Justice Byron R. White: The way of saying accretion -- the rule of accretion is out of the window.

If we do -- if we did say that the rule of accretion is not out the window whether the land that has the -- the owner does have the right of accretion then --

Mr. Harold T. Hartinger: Your Honor is that -- Your Honor is right.

The -- if we're sustained on accretion then the matters that we're talking about now are taken into consideration only when we determine that 1889 dividing line.

Justice Byron R. White: And does your -- it doesn't really matter the fact that the actual vegetation line came?

Mr. Harold T. Hartinger: Yes, it does.

Justice Byron R. White: And it has -- that you want to have it a permanent --

Mr. Harold T. Hartinger: Well, when we talk about the beach proper, when we talk about the vegetation line, we talk about a line that changes as the reach of the water changes because it's a line which the water establishes.

Now --

Justice Hugo L. Black: At what rate has this accretion change in growth?

Mr. Harold T. Hartinger: In --

Justice Hugo L. Black: What the defendant state?

Mr. Harold T. Hartinger: In -- on this property here, the growth of the beach has been 175 feet.

The case before the Court, it has been 175 feet.

There are cases --

Justice Hugo L. Black: An average amount each year.

Mr. Harold T. Hartinger: I think the growth rate has been constant.

Yes, Your Honor.

Justice Potter Stewart: 175 feet since when?

Since?

Mr. Harold T. Hartinger: Since 1889 which is the date of Washington statehood.

Justice Potter Stewart: Yes, and how about the -- the patent was in what, 1866?

Mr. Harold T. Hartinger: The patent was in 1866.

The meander line was established in my recollection is approximately 1858 between the meander line and the 1889 line.

Now this --

Justice Potter Stewart: It could be even more.

Mr. Harold T. Hartinger: There is approximately 350 feet of accretion prior to statehood.

Justice Potter Stewart: To the prior -- 350 feet between 18 -- about 1860 and 1889 --

Mr. Harold T. Hartinger: And the --

Justice Potter Stewart: -- and 175 feet since.

That would seem to be slowing down the rate of accretion with those figures --

Mr. Harold T. Hartinger: Yes, Your Honor.

At this particular respondent, yes, Your Honor.

Justice Abe Fortas: Are you suggesting that if we should decide that federal law controls -- we could nevertheless accept the vegetation line for purposes of demarcation?

Mr. Harold T. Hartinger: Yes, Your Honor.

This is precisely the position we take.

Justice Abe Fortas: Well, at first you take the position of federal law that should not control it, is that right?

Mr. Harold T. Hartinger: We take the position that number one, wash on -- first of all, we should divide this between the accretion problem and the beach problem.

Both questions I must necessarily accreted both of them but in argument I must divide them to make my position understandable.

On the accretion problem, we recognize that the common law prior to Washington became a state, then our Constitution destroyed riparian rights, all of them.

The right of --

Justice William J. Brennan: If you come to the (Inaudible) and you still recognize that United States has accreted the lands to its riparian land.

Mr. Harold T. Hartinger: This is right, Your Honor.

Justice Byron R. White: Well, how do you -- how can you make that provision?

Mr. Harold T. Hartinger: No.

Justice Byron R. White: Your Constitution says that once you became a state, the accretion rights end.

Mr. Harold T. Hartinger: Your Honor, the explanation is this.

We assert that the state has the power to change the common law as it affects privately owned lands but our Washington Supreme Court denies that Washington law has the power to change the common law as it pertains to the lands owned by the United States.

Justice Byron R. White: If the United States expressly in the deed, if this deed that we have in this case had expressed those, reported the grant of accretion, you wouldn't be here?

Mr. Harold T. Hartinger: We have a constitutional problem then which would be another problem.

The ownership of the beach, the ownership of the tidelands of the State of Washington, the property it acquired at the time it became a state was a property it acquired as an incident of its sovereignty, it was not by granting the Federal Government.

Under Pollard versus Hagan we learned that ownership of tidelands goes with sovereignty and the sovereignty it goes with is state sovereignty just as we learned in United States versus California that the ownership of offshore lands is an incident of sovereignty but in that case, it's an incident of national or federal sovereignty.

And then the question would be under the equal footing doctrine, constitutional doctrine whether the United States which is borrowed by the equal footing doctrine from subtracting from the state, that sovereignty which other -- the original 13 states had whether -- because the original 13 states would have the right to change the common law whether the Federal Government could have denied the state that right.

I wouldn't know how to answer the question but that is not the problem here because the patent does not say anything about this.

As a matter of fact, this Court --

Justice Byron R. White: Although, you concede that although the patent didn't say anything about it nevertheless the landowner had the right to all the accretions up to the date that Washington became a state and that is by virtue of that his deed which did not say anything about accretion.

Mr. Harold T. Hartinger: No, Your Honor.

It was by virtue of the common law which was in existence at that time.

Not a --

Justice Byron R. White: Yes, but the common law in connection with this grant.

Is the common law applied to the grant -- that common law is applied to that grant as it would have been the same as though the grant had said so expressly?

Mr. Harold T. Hartinger: Well, the difference is that the common law control -- the right to accretion has been held by this Court in Joy versus St. Louis, a case which must be read and must be understood on the question of accretion, Joy versus St. Louis in Volume 203 of United States reports.

The Court explicitly said that the right to accretion under the patent given by the Government was riparian right.

The Court specifically said that an issue over that accretion was not a federal question and --

Justice Abe Fortas: I suppose your position is that if this had always been -- let's just assume somehow rather that this would always been private land and that date when they had in here an issue instead of a federal patent issuing, there had been a transfer to another individual, now from that date to the date when the stated doctrine it's conflicting land policy by virtue of the common law, the new owner would have done it prior to accretions, it would have been entitled to acquisition is that right?Mr.

Mr. Harold T. Hartinger: Yes, Your Honor.

Justice Abe Fortas: And you're saying that the state could come in and then say that as of 18 -- what was it, ‘89?

Mr. Harold T. Hartinger: 1889.

Justice Abe Fortas: As of 1889, the accretion will no longer go to the private owner but will go to the state, isn't that right?

Mr. Harold T. Hartinger: That's right, Your Honor.

Justice Abe Fortas: And you're saying that once a Federal Government issued the patent and divested itself here saying of all of its interest then the land for all purposes including this purpose should be treated as private land, isn't that right?

Mr. Harold T. Hartinger: Yes, Your Honor.

There -- we do concede that there are limits beyond which the state cannot go but we are not exceeding them here.

Now the right of this --

Justice Abe Fortas: Yes, but the purposes of this problem anyway, you're saying that the land once the Federal Government issued its patent the land ought to be treated like any other private land.

Mr. Harold T. Hartinger: Or put it better yet, once the Federal Government gave its patent.

The land ought to be treated the same as if that patent had been given by Great Britain or Spain, by Mexico or by the state subject to general law.

Now, the power of a state to --

Justice William J. Brennan: Well, I don't quite understand that.

What do you think the rule was followed with respect to accretion?

Mr. Harold T. Hartinger: The --

Justice William J. Brennan: I thought the rule was -- I know the state law will make the law eventually varied common law was preparing --

Mr. Harold T. Hartinger: Under common law until it's changed, the riparian owner will get the accretion --

Justice Byron R. White: Well, how do you say if the law that you were saying is as bad it could be (Inaudible) --

Mr. Harold T. Hartinger: So far as the federal question is concerned, Your Honor --

Justice Byron R. White: What about in Great Britain, what's the rule of Great Britain (Inaudible)?

Mr. Harold T. Hartinger: That would have been the rule but nobody would challenge the state law if we had a grant from Great Britain.

The arguments made that this Court should intervene.

In this case for the simple and sole and the only reason that the patent was given by the Government over a hundred years ago and we think that it makes no sufficient case for --

Justice Byron R. White: What the United States say, they think the same argument today if the grant is made today?

Mr. Harold T. Hartinger: The --

Justice Byron R. White: And in this case, that should turn on the grant has been made before what it became a mistake.

Mr. Harold T. Hartinger: And -- no, it does not accept that if it's made after statehood, of course the accretions that have formed after the date of patent would go to the patent deed.

Justice Byron R. White: How about after.

Mr. Harold T. Hartinger: Because I'm speaking about after statehood, Your Honor.

Prior to statehood, the accretions that had formed --

Justice Byron R. White: Would the United States position with regard to the accretion would be the same today -- you were saying that this grant had been weighed after the statehood?

Mr. Harold T. Hartinger: Yes, it would.

Justice Byron R. White: Alright.

Mr. Harold T. Hartinger: Now, I want to have Mr. Miller point out at present time the beach.

In 1901, this beach was dedicated to the public and we've illustrated the area that the public had their rights in up to the top of the beach and administratively it was construed that this beach included that a 175 feet of accretion, that portion there, our Supreme Court leaves us in doubt.

The legislature after the decision of the Court then comes in and speaks unmistakably, we gave a seashore conservation area which extends from extreme low tides or else we can get up to the vegetation line and that is a public beach now.

The accretion between the public deeds is held for the benefit of the seashore conservation area access and other things that can be used in connection with the beach.

Now, when we talk -- the question about changing the common law doctrine of accretion, now that question has been before the Ninth Circuit Court of Appeals in a case construing a California statute.

The California statute was subsequently reinterpreted by the California court in a different way than the Court of Appeals had it interpreted it.

But nonetheless, the Western Pacific case, Western Pacific Railroad versus Southern Pacific Company is the California case which delves into the problem and justifies the state's power to change accretion if for instance you have a sloping beach and the state fills along the top of the beach disregarding the accretion problem.

But if our -- yes, if the state builds across the top of the beach, that fixes the line.

The state can do any number of things, it could put those bulkheads which would cause the beach to build up and this would fix the property line and all we're doing here is accomplishing the same thing by a law rather than sending a man out that would pick and shovel to pick the dirt up to fix the line, you do it by law.

Justice Hugo L. Black: Has any of this accretion is settled on land that is privately owned that time.

Mr. Harold T. Hartinger: In the area that we are primarily interested in, the adjacent lands are almost entirely privately own.

Justice Hugo L. Black: Is that the ones that the accretion was settled on?

Mr. Harold T. Hartinger: Yeah, in front of those.

Yes.

We -- the tide lands that built up so that once lands which were tidelands are raised above the level of the ocean by the deposit of alluvium and --

Justice Hugo L. Black: What happened then I guess what you say is that the Government probably gotten more land out in the open ocean than it had have before but it's gotten to the expense of private owned lands right on the coasts?

Mr. Harold T. Hartinger: No, we do not take land at the expense of the private owners.

Justice Hugo L. Black: How could you say that some of that accretion had settled on land and owned by private owners.

Mr. Harold T. Hartinger: No.

It settles on the tide lands.

Justice Hugo L. Black: I mean the new accreted land that comes to your land by accretion.

Mr. Harold T. Hartinger: No, it always settles on tidelands and builds the tidelands up so that the tidelands are raised above the level of the ocean.

It does not deprive the private owner of any property.

What the private owner insists on in this case is a rule of law which will let in acquired title to the lands which once were tidelands.

Lands which concededly once were state owned.

He wants to acquire tideland property.

He wants to acquire it or he wants to acquire it when the alluvium deposit raises the level of the tideland above the level of the ocean.

It's not a question of the state taking property away.

It's a question of the property owner enhancing its ownership by extending it.

Now, we believe that this common law doctrine by which the property owner could do that can be modified by the state in the same way that the state modifies the common law owner's right to take water from a stream, this riparian right to take water.

Justice Hugo L. Black: Do you think the provision the Government did not own that before the accretion was set alone therefore she can't own it now.

Mr. Harold T. Hartinger: The state most definitely did own it before the --

Justice Hugo L. Black: The state did?

Mr. Harold T. Hartinger: Yes, the state not --

Justice Hugo L. Black: State or private owner.

Mr. Harold T. Hartinger: The state owned the land before the accretion settled on.

Justice Hugo L. Black: All of it?

Mr. Harold T. Hartinger: Yes, Your Honor.

And the private owner seeks a principle of law which lets him extend his ownership, widen his ownership.

That's the case that we have.

Now, the interesting thing that we speak about accretion if you look at the --

Justice Hugo L. Black: What does the Federal Government hace to do with the questions below on the land of that kind?

But you say it has nothing --

Mr. Harold T. Hartinger: I don't think that this Court has any right to pass --

Justice Hugo L. Black: Isn't that in the statute?

Is there any statute?

Mr. Harold T. Hartinger: No statute.

No, Your Honor.

I don't think that this Court has the right to review the wisdom of a state law.

I think that it's foreclosed and I think that there's a federal interest which lets this Court step into this area.

Now --

Justice Hugo L. Black: And you conceded that the land was owned by the state before the accretion was settled on it?

Mr. Harold T. Hartinger: Yes, it is Your Honor.

Justice Hugo L. Black: Now, how did the Federal Government claim that it's got no ownership?

Mr. Harold T. Hartinger: The Federal Government has had no ownership that's affected by this case --

Justice Hugo L. Black: Are any of its successors entitled?

Mr. Harold T. Hartinger: The -- this -- the Government's successors acquired their title in 1866 and under a principle of law that applied until the State of Washington changed it, they were able to extend their ownership westward.

Then the State of Washington change this ownership -- change this rule of law and said that henceforth, the titled state is right where it was, the boundary will not move.

Now, on both of the issues --

Justice John M. Harlan: Now, what you're saying in essence of -- it was a little bit mistake.

But what the scope that the patent itself, it is not its origin (Inaudible) --

Mr. Harold T. Hartinger: That's right

Justice John M. Harlan: -- the law it has in fact --

Mr. Harold T. Hartinger: That's right, Your Honor.

Justice John M. Harlan: (Inaudible)

Mr. Harold T. Hartinger: That's our position, Your Honor.

Now --

Justice Abe Fortas: If I may try to put it in another way what you're saying is that the force of the patent was exhausted and there was issue, isn't that right?

Mr. Harold T. Hartinger: On this point, yes, Your Honor.

Now, the state's position and the state's right to do what the State of Washington has done is not a startling proposition.

When for instance the line of vegetation versus the mean high tide line, the State of Washington is doing nothing more than develop the common law and they're developing it from the decision of this Court in San Francisco versus Le Roy which was decided about the time Washington became a state.

San Francisco versus Le Roy, the vegetation line rule is still the rule which the Secretary of Interior instructs his own employees to follow and Section 520 of the manual of instructions.

As a matter of fact, the same manuals speaks of the problem of accretion and the Bureau of Land Management is instructed to serve an accretion in front of the public domain only if that accretion would be privately owned if it were in front of private uplands.

In other words, the recognition is found by the national government's land administrator of the possibility of the state rules of the kind that we're talking about here.

Justice Potter Stewart: And this is with respect to the Pacific Coast?

Mr. Harold T. Hartinger: To both questions.

This would be to find --

Justice Potter Stewart: It's not confined to rivers or something like that?

Mr. Harold T. Hartinger: No.

This Court -- I think that the accretion language has been directed primarily to rivers, however, we follow the moving boundary on rivers in Washington.

Justice Potter Stewart: But your -- but your regulations of the secretary I'd understood were perhaps confined to rivers and didn't have anything to do with the --

Mr. Harold T. Hartinger: No, the --

Justice Potter Stewart: -- coast of the Pacific Ocean along the west coast of --

Mr. Harold T. Hartinger: No, it includes the Pacific Ocean because these instructions primarily relate to the -- they relate to the public domain which is the western state primarily.

Now, the situation that we've got here --

Justice Byron R. White: Could you say that the pacific rundown (Inaudible).

Mr. Harold T. Hartinger: Washington law recognizes moving boundaries on rivers.

Justice Byron R. White: (Inaudible)

Mr. Harold T. Hartinger: By a reason of accretion and erosion.

Justice Byron R. White: (Inaudible)

Mr. Harold T. Hartinger: We have no man's land.

We have -- we know what the law is on rivers and streams.

We know what the law is on the ocean.

It's a matter of dispute frankly as to how this law will be applied to the anterior waterways.

Justice Byron R. White: (Inaudible)

Mr. Harold T. Hartinger: I think it's by accident.

When we deal with -- when we deal with property law, we're very much concerned with the certainty and definiteness and we want to know what's happened before.

For instance, in this area of the public beach on that Long Beach Peninsula that I was telling --

Justice Byron R. White: (Inaudible)

Mr. Harold T. Hartinger: That's what the Washington Supreme Court said in a --

Justice Byron R. White: (Inaudible)

Mr. Harold T. Hartinger: The --

Justice Byron R. White: What do you have -- did you say that it might be under the law that the --

Mr. Harold T. Hartinger: It's not --

Justice Byron R. White: (Inaudible)

Mr. Harold T. Hartinger: It's not logical, Your Honor, but that is the Washington law and we cannot -- we must accept it and the Court -- the Court I think will adhere to this prior river case and go forth and recognize the accreted title because of the rules of property.

Just as in the cases that we have here in the vicinity of this lawsuit, there have been a series of 73 cases affecting over 3 --

Justice Byron R. White: (Inaudible)

Mr. Harold T. Hartinger: Yes, definitely.

Justice Byron R. White: (Inaudible)

Mr. Harold T. Hartinger: Yes, the same rule.

But rules of property are very important and it's important that they'd be conducted and formulated at a local level.

Professor Corker who is cited by -- we all cite him.

Professor Corker is very upset with the Washington Supreme Court in what it did.

But the way he puts it is this, he said, if they're wrong, they have the right to be wrong.

Now, I don't agree with him about his judgment of Washington law but I do agree with him about the fact that it's a state matter and that --

Justice Abe Fortas: Does the state of Oregon dealt with this problem?

Mr. Harold T. Hartinger: The State of Oregon so far as I know has no appellate decisions.

But the State of Oregon has a statute which has deprived the upland owners of a title to accretion or reliction formed after 1917 along navigable lakes.

We have cited the statute.

Justice Abe Fortas: Just along navigable lakes?

Mr. Harold T. Hartinger: Just along navigable lakes.

Justice Abe Fortas: And is there any -- is Alaska have any law on this?

Mr. Harold T. Hartinger: Alaska has no law.

I would -- no, there is nothing that I can report either in their statutes or in the decisions of the courts.

Now --

Justice Hugo L. Black: What was this land that could not possibly -- being 500 feet in 10 miles a large number of owners of property about ten miles divided or subdivided under the Government claim of his own land and the land somehow I'd like to hear and I'd like that he can show?

If --

Mr. Harold T. Hartinger: Yes, --

Justice Hugo L. Black: If you can -- should do that?

Mr. Harold T. Hartinger: That -- there was a suggestion that at the time of the Government's patent, there may have been so much land between the meander line and the ocean that the Government's patent would not appear a title to the ocean but that was merely a suggestion offered by the solicitor in order to round out the body of the law and that is not a problem in this case as I understand the solicitor's prefound the merits.

Justice Hugo L. Black: Now what -- I thought this is a logic of reasoning --

Mr. Harold T. Hartinger: Well, it's very --

Justice Hugo L. Black: -- would the Government get control of them and they can become a federal question?

Nearly because 10 miles has been covered by --

Mr. Harold T. Hartinger: Well, the theory would be that when the Government gave its patent it expected the land that it would convey to be approximately the acreage shown in the Government survey.

If that meander line was grossly out of place, the Government would take the position that it could not have intended to give 10 miles of land.

They simply intended to give the acreage on the survey and they cite a decision of the Interior Department and I believe there is a judicial authority which would support them but that is not a problem in our particular case.

Justice Hugo L. Black: But it's a problem isnt?

This is 500 feet and that they could not.

Mr. Harold T. Hartinger: No.

The -- we're talking here about something that it's all together different.

We're talking about beach in front of the property.

We're not -- we don't have the problem where the Government, the national government or the Federal Government has any claim.

Justice Hugo L. Black: Oh, I understand you.

But how would if -- if that he own this, how would the Federal Government gain anything.

Mr. Harold T. Hartinger: They would not -- they would not except under that one distinction, that one convincing problem that I just spoke to.

The Federal Government has no interest in any of this land that we're talking about today and it owns very little land in the southern part of the ocean beach, the southerly part where the bulk of the accretions have gone.

Chief Justice Earl Warren: Mr. Hartinger, may I ask you if the United States Government stood in the place of Stella Hughes in this Court today on the same facts, would you be here?

Mr. Harold T. Hartinger: I'd be here on the ocean beach issue.

I would not be here on the accretion issue.

I'd be here on the definition of the --

Chief Justice Earl Warren: Where is -- now, let's talk about the issues in this case, you would not be here?

Mr. Harold T. Hartinger: On the accretion issue.

Chief Justice Earl Warren: -- on the accretion, yes.

Mr. Harold T. Hartinger: I would be here on the disagreement for the top part of the beach because we can turn --

Chief Justice Earl Warren: Well, who owns it, that's what I'm trying to --

Mr. Harold T. Hartinger: We would contend that the state owned it and we would contend that that boundary line again is located by a legal rule or a common law rule.

We adopted our rule which was this Court's rule.

We adopted this Court's rule at about the time of statehood and what we say is that since it's a reasonable and more rational and more logical extension or development, if you will, of the common law that this Court ought to accept it that this Court ought not to attempt to follow a rule like the Borax rule theoretical rule which fixes through a mathematical formula which fixes a boundary in this case, 386 feet below the bottom of the beach as one attorney remarked to me, it's not the wisdom of Solomon to cut the beach in half.

We think that the state has the freedom to develop the common law concept of what's the ordinary limit of the tidelands which the state would own irrespective of the accretion issue.

Justice Byron R. White: This involved overruling Borax that argument.

Mr. Harold T. Hartinger: I don't think it does but Professor Corker in this article disagrees with me and I have stated in the brief for that reason, I have stated that if it does, I would ask this Court to say that the State of Washington can adopt any rule it wishes.

It can adopt the Borax rule, it can adopt the vegetation line rule, it could adopt the Californian mean high tide line rule and -- but the Borax case and how I have construed it.

In Borax, the problem of the argument was different in Borax, dealing without a record, dealing on the basis of the assumptions of counsel, the purpose of the impression that the line of vegetation, that the line that we're seeking here was below the line of mean high tide.

Now, the normal way to resolve an issue such as that would have been for this Court to say that if that's the case, it's no concern of ours but the Court went on and said that the rule that was devised by the Court of Appeals ought to be applied as a federal rule and on its face, the case simply says hat a state may not disclaim interest in land below the mean high tide line.

That's what it said on its face and --

Justice Abe Fortas: And one of the vegetation that would contend for is an ambulatory line, is that right?

So it depend -- let me see if I can get this clear in my own mind.

If the Federal Government following the Chief Justice's question, the Federal Government still own this land, you would not claim that the service state claim to the accretions against the Federal Government?

Mr. Harold T. Hartinger: We would not, Your Honor.

Justice Abe Fortas: But you would say that the demarcation line is not mean high tide which the federal rule I take it, generally regardless to this federal rule but that the line of demarcation is the line of vegetation as it exists at the time the state may -- at the termination.

Mr. Harold T. Hartinger: Yes, Your Honor.

Yes, Your Honor.

Now --

Justice Byron R. White: Isn't that the changing line?

Mr. Harold T. Hartinger: If United States Your Honor, we would have a changing line, an ambulatory line.

Justice Byron R. White: The United States --

Chief Justice Earl Warren: Well, I suppose if it belonged to the United States, it could sell it, couldn't it?

Mr. Harold T. Hartinger: The United States could sell --

Chief Justice Earl Warren: Everything that it has?

Mr. Harold T. Hartinger: It could sell it, yes.

Chief Justice Earl Warren: Suppose -- then the United States sold some of its waterfront property tomorrow, it would take up to the present mean high tide line, would it?

Mr. Harold T. Hartinger: We would say vegetation line, Your Honor.

Chief Justice Earl Warren: Well, suppose the Government we adopt the federal rule only to say that it's a mean high tide line.

Mr. Harold T. Hartinger: If this Court nullifies the state law then this Court will have to --

Chief Justice Earl Warren: No, but let's put it in practical term not nullifying anything.

I will just deal with the facts.

If we were to say that the federal rule of mean high tide applied then the Government could sell everything it has, couldn't it, to someone else?

Mr. Harold T. Hartinger: Yes, it could.

Chief Justice Earl Warren: And the mean and anyone to whom it sold the present time would have -- would own up to the mean high tide line, wouldn't it?

Mr. Harold T. Hartinger: It could.

Chief Justice Earl Warren: But now does that mean that because Mrs. Hughes has owned this property since how long back, I don't know, that she would be deprived of her land in that area but that some new purchaser who came from the Federal Government would be entitled to it?

Mr. Harold T. Hartinger: The new purchaser would own more land than Mrs. Hughes because they -- well, the Government is owner -- the accretion rule can't be changed by the state and therefore the Government acquires state land to the doctrine of accretion whereas Mrs. Hughes who is subject to state law does not acquire it.

One would have a boundary that would be seaward to the other.

When the Government if today made a conveyance, its patentee would take the same land that the Government had but of course the Government's patentee would take subject to the right of the state change the law and of course state law does become operative at that point and the owner who took today would not then be able to extend his ownership through accretion in the future but the --

Chief Justice Earl Warren: Those who get -- does the state own the tidelands affirmed upon the grant owned by the United States?

Mr. Harold T. Hartinger: Yes, Your Honor and that --

Chief Justice Earl Warren: If they do own it, why wouldn't they be entitled to it just as much is it that was implied with ownership?

Mr. Harold T. Hartinger: I argue that question to the Ninth Circuit and the Ninth Circuit ruled against us and that is the case that's cited to the Court as Washington versus United States.

Because of that case, the Washington Supreme Court gave -- the Washington Supreme Court said that that case binds them.

They construe that case as announcing a federal law, announcing federal law that the state couldn't change the rule of accretion and the Washington Supreme Court then acknowledged this federal case, this Ninth Circuit case.

That's the --

Chief Justice Earl Warren: By what principle did it distinguish that case from this?

Mr. Harold T. Hartinger: On the basis that -- well, the Federal Government is the owner of the property.

The State is powerless to change the law which affects the federal ownership.

Under the federal constitution the Congress has the power to make all needful rules and regulations concerning the public domain, the Congress and not the state.

So this is the distinction.

Justice Abe Fortas: Well, if the Federal Government today saw some land which he has owned today, I suppose the logic of your position would require to think about.

But I suppose the logic of your position was referring to say that the purchaser acquires that land with the seaward boundary defined by federal law as of today.

Mr. Harold T. Hartinger: Federal law which incorporate state law as --

Justice Abe Fortas: Well, that's your argument but --

Mr. Harold T. Hartinger: Yes.

Justice Abe Fortas: -- I don't say you square that with the position you've been taking in your discussion with the Chief Justice.

Mr. Harold T. Hartinger: No.

Most definitely, we can square that.

I do not mean to be inconsistent, no.

The -- you have a problem of putting a line between the federal ownership and the state ownership.

We're assuming that the federal owner today and the state tideland owner today have to have a boundary between them.

What we insist is that since we all agreed that this is a common law concept, the federal law should follow the state law and --

Justice Abe Fortas: Well, what you're -- that's precisely the difficulty of it which what it was trying is that the federal law is between sort of functus officio because as soon as the state adopted it its law and I don't see how you can say that the federal law will have vitality so long as against -- the federal law have vitalities so long as the Federal Government own the land but only if the federal, only as of the date when the state adopted its law.

Mr. Harold T. Hartinger: In one case, we're talking about a change in law applicable to the Federal Government.

In the other case, we're talking about the development of real property law.

It's not a change of law.

We have a state rule which is founded directly on the rule of the Supreme Court that was decided in about 1890, very close to statehood and we followed that rule and we are simply asking that this Court not force us to change its mind if this Court now decides there it should be a better rule for fixing the boundary and the reason why we think that this Court ought to say that the boundary follows the state law is because if this Court goes to all the trouble of formulating a rule to divide uplands from tidelands, the rule will apply in Alaska, Washington and Oregon.

It won't apply in California because they don't make the claims we make.

It won't apply in Texas because they're not a public land state.

It won't apply in the Gulf if there's one tide a day because that would lead to a different formulation and it won't apply in the other 13 states because they were the original states.

So we don't think that this Court should be making real property law for one state or three states.

Thank you.

Chief Justice Earl Warren: We'll recess now.

Mr. Welsh.

Rebuttal of Charles B. Welsh

Mr. Charles B. Welsh: Thank you, Mr. Chief Justice.

A few pause in rebuttal, first, Justice Douglas asked the question if there is any land in this vicinity, ocean frontage that was eroding just north of this property in question.

There has been nearly five miles of it erode and the erosion had been nearly a quarter, I mean a mile and a quarter in depth as Justice Hill said in the dissenting opinion, the State of Washington and the public must swim out a mile and a quarter, dive down to about 45 meters in order to enjoy their tideland under the Hughes opinion.

Now, counsel has mentioned that the State of Washington since 1929 has sold 90% of the water frontage in Grays Harbor County, the adjoining county to the north.

All of the state deeds containing an ambulatory boundary line stating, first to call second class tidelands.

Such an appellation doesn't exist either in law or fact.

There's no such thing.

They are uplands but the deed reached to the line of ordinary high tide as the same now or hereafter may exist.

After this property has all been solved about 30 miles of it, the states run out on erosion frontage.

The Supreme Court has generated more in the Hughes case for the state to sell.

Now, the counsel has said that the Hughes decision is not startling, I agree.

To us it's incredible.

As a result of this decision, we have five rules concerning water boundaries in the State of Washington, one concerning navigable rivers and streams.

This is an ambulatory boundary following the common law concept.

Next is the ocean and probably bay frontage water bounded which under the Hughes case adopts a new completely changed theory.

Then we have a no man's land.

These waters in between the amounts of your rivers, your bays, your ocean, no one knows what that law is except that it's bound to be under any future decisions something different.

Then we have another boundary line concept if the present owner is the United States Government.

Justice Hugo L. Black: What do you intend to take (Inaudible)?

Mr. Charles B. Welsh: If I follow counsel's interpretation with Hughes and fully admit that I can't interpret Hughes logically.

The state was saying to the United States Government, you own all of the land that you originally owned to the November the 11th, 1889.

Justice William J. Brennan: Even as to the lands that they disposed of only now?

Mr. Charles B. Welsh: This as my understanding of the counsel's position or I could be mistaken.

He may have said that Government's line would depend upon the line of vegetation.

In any event --

Justice William J. Brennan: That is where that is now?

Mr. Charles B. Welsh: No, as I think it's or it would be as of 1889.

I don't know at least the position of the Government as owner selling now would be different than the United States Government selling to a private individual now.

There would be two different concepts.

It is then an applied rule governing navigable waters.

Now, I don't know that any criticism would be more just or perhaps cruel that Justice Harlan in his dissent.

He said Your Honors that there has been a new circuitous and rather devious root rarely explored followed by the majority.

I think if I will conclude, in our opinion Justice Hill is a wise man.

I thank you.

Chief Justice Earl Warren: Yes, you have some more time.

Use some more of your time Mr. Weisl.

Rebuttal of Edwin L. Weisl, Jr.

Mr. Edwin L. Weisl, Jr.: Chief Justice, I thank you and the Court for this additional opportunity to state that I am very, very surprised that what is essentially a simple issue, has become deceivingly so difficult when the Government's position in this case simply is that they vested right to accretions that in this case happens to arise where a federal patent cannot be taken away by legislative fiat such as the Constitution of the State of Washington as recently interpreted by the Supreme Court of Washington in Hughes.

Justice John M. Harlan: But it argues that this power doesn't go right through the patent (Inaudible).

Mr. Edwin L. Weisl, Jr.: I do not say that there is any magic in the fact that this land derives from a federal patent, Your Honor.

There is no question that upland owners had as an indicia of their ownership of land, their right to a boundary defined in the Pacific Ocean.

Now, whether this is with the federal patent or not, it isn't in this instance so important and it might well be ownership of land in one of the 13 original states on the seashore.

The state then by Constitution comes and takes this away which has been long held to be a vested right of ownership in your land.

Your own land on the Pacific Ocean under the rule of the Hughes case in the State Supreme Court of Washington, you no longer do own land on the ocean you own land quite a considerable way back not at all what you have bought, not at what you are patented.

Justice Byron R. White: But suppose that that is the consequence that if you apply the common law rule why the common law does all have land on the Pacific Ocean that the state may change the common law why not certainly the result that perhaps you might not any longer own land on the Pacific Ocean.

Mr. Edwin L. Weisl, Jr.: Well, I certainly think that if the state purports to do that legislatively that it involves to something quite different than a mere change in law.

It amounts to a taking a confiscation of property which the Fifth Amendment requires payment for.

It does not merely change the rule -- yes, this is not -- this is an alternative approach to the Hughes case if you might say land can be taken, we never quarrel with that.

Justice Abe Fortas: But you're saying aren't you that it doesn't -- it is of no significance here that this title was acquired by a federal patent, that it end that federal patent has been -- the legal consequences would be the same that is if the rule as of the time the predecessors in title acquired this land.

If the rule at that time was that the accretion belonged to the uplands up to this line and then you'd say that the state can never take that away and it's not a correction of the supremacy of the federal law, is that your position now?

Mr. Edwin L. Weisl, Jr.: Well, I think that first of all because it's a federal patent, we do have a federal question involved but I say even if that were not, I think the same rule would apply in that while the state can't take it away.

They can take it away only under circumstances where just compensation is due and wholly and this is something which Stella Hughes owns.

She owns her rights to have her boundary on the Pacific Ocean.

The extent that the state now said, we own the land between the Pacific Ocean and some of the line that pick out -- I'm not sure what the Supreme Court of Washington picked out here.

I think I know these lines of vegetations.

You own -- you do no longer own on the Pacific Ocean.

Your property is no longer the same property that you bought and paid for acquired by patent.

Therefore, Mrs. Hughes has been deprived that a substantial indicia of her ownership.

The value of her property was no doubt that it wasn't on the Pacific Ocean.

That I think is the sound underlying basis for the common law of accretions which is applied universally as far as I can tell in common law countries except the State of Washington since Hughes which was a holding that was not sound and based in the interpretation of its own Constitution.

Justice Abe Fortas: Well, what you're saying is that common law of accretions is nothing more than -- it is nothing less rather I'm going to say than the statement of that I'm outwitting essential constitutional principle?

Mr. Edwin L. Weisl, Jr.: I would say this.

The property is acquired and owned because of its location and value.

You buy property that abuts upon a river, that abuts upon an ocean.

Your key describes it as such.

Imperceptible accretions really do not adversely affect anyone else to that extent therefore you have a right to keep your property abutting upon that body of water.

Justice Byron R. White: The common law also gave riparian owners the access to water.

Mr. Edwin L. Weisl, Jr.: Yes.

This line --

Justice Byron R. White: And yet you wouldn't suggest that the state has to pay compensation for cutting off access to the water.

Mr. Edwin L. Weisl, Jr.: No.

This is a different matter Mr. Justice White.

Justice Byron R. White: What's the difference?

You just said it's a different result.

Mr. Edwin L. Weisl, Jr.: No, I think it's a different matter that these rights are rights to use something that belongs to someone else.

The flow of the stream, the depth of the stream, the water in the stream doesn't inherently belong to you.

It is in essence sovereign property that under riparian law principles, you are allowed to use as long as the sovereign doesn't come in and apply to a higher public use.

Riparian rights are somewhat like what you are permitted to do under zoning laws that if the public permits you to do this until such time that the public has a greater and higher use.

These very points that we assume will soon be before this Court in the case of diagrams I believe against the United States whether the compensation must be paid for the riparian rights.

But the courts in dealing with these two questions, is accretion a vested property right?

Is it like Riparian rights that almost universally and this reached the conclusion that a right to accretion is not the same thing as the permissive riparian right and I again invite -- earnestly invite this Court's attention to Stevens and Arnold in which Mr. Justice Holmes drew that distinction.

Justice Potter Stewart: Mr. Weisl, as I understand your statement now, you think this case basically boils down to a due process, Fourteenth Amendment case that this property included the right to any accretions as a property right and for the state to take that away whether by exchanging its law, however, it cannot do so without just compensation, is that it?

And that would be true, however, the property were acquired whether by federal patent or private purchase.

Mr. Edwin L. Weisl, Jr.: I say that indeed that would be true whether or not it was the federal patent, however, I will say that I believe it is the fact that this is a federal patent, it creates a somewhat greater compulsion to ensure that the patentee preserves their ownership in these accretions.

Justice Potter Stewart: Well, it doesn't -- it wouldn't make any difference with respect to that Fourteenth Amendment claim, wouldn't it?

Mr. Edwin L. Weisl, Jr.: No, I don't believe it does and I think when you look at a clear field principle that a federal deed carries with it federal law and federal interpretations of the scope and extent of that deed, it is not in this instance do similar to a federal check which was held to be subject to federal law principles in clear fields.

We have this additional factor of the federal grant but I really do feel that at this title and derived elsewhere with the same principle would indeed upon.

Justice Abe Fortas: Well, you told us of the cases coming but even so, what is the logic of your position as applied to the Court from the compensations?

Suppose the state owns a breakwater and the result of it is to inundate some of the upland land to this tideland.

Mr. Edwin L. Weisl, Jr.: Well, in either they -- excuse me.

Justice Abe Fortas: Does the state suppose it takes away some of this accretion to fill in the land that's previously accreted, thus the state takes compensation?

Is that the logic of your position?

Mr. Edwin L. Weisl, Jr.: Upland that is taken away by sudden movements such as installation of breakwater, dredging and what have you ordinarily does not affect the change in title.

This type of change is calling -- (Voice Overlap).

Justice Abe Fortas: You're taking the position -- you're taking the position that the land that has accreted --

Mr. Edwin L. Weisl, Jr.: Yes.

Justice Abe Fortas: -- is protected by the Constitution it belongs to the land to the upland landowner.

Now, the state deliberately in knowing what's going to happen builds a breakwater and so that land by reason of the state's act is taken away.

Is there a state that have a servitude or how do you reconcile the position that the state doesn't have to pay compensation, maybe you don't, maybe you said does it concede.

Mr. Edwin L. Weisl, Jr.: This -- the state servitude extends to the use of the waters and access to the waters alone to the extent that uplands are inundated or suddenly washed away.

The upland owner would continue to have title down to the point where its uplands originally went.

This would be -- if they are swept away suddenly a so-called evulsive change.

Justice Abe Fortas: I understand that -- I think I understand that doctrine but I don't understand how to describe it with your position on accretions.

Mr. Edwin L. Weisl, Jr.: Well, accretions are first of all these imperceptible and gradual workings of the natural courses of the sea that slowly deposit land on the beach and it didn't accept --

Justice Abe Fortas: I understand that too but it's a little hard to find this kind of statement in the constitutional theory, isn't it?

Mr. Edwin L. Weisl, Jr.: Well, I don't know that I have this difficulty Mr. Justice Fortas because of this long belief that the rights to accretions have vested the property right whereas these riparian rights to use the water to take it for drinking and agricultural purposes to build up here out into what you do not own but into the bed of a navigable stream.

Of all this would be held to be a permissive right because you may at some point in exercising this permissive right be interfering with a higher and more important sovereign use for the navigable water.

That came -- that issue is not presented here but we're talking about the sovereign trying to use uplands not part of its tidelands, uplands which under any traditional view of just compensation and sovereign -- imminent on the law must be bought and pay for if it is to be taken from a private owner.

I admit that the state that extinguished the value to Mrs. Hughes of being on the Pacific Ocean by building the breakwater, by putting up signs saying Mrs. Hughes -- no one permits Mrs. Hughes traveling bays in the Pacific.

In general, however, when the state does such a thing involves large expenditures of public fund, the legislative decision to go forward with major projects, a clear and manifest intent of the state to dedicate its tidelands to a present and impressive private deed.

Justice Byron R. White: I suppose we're concerned with something more than the area of deductions from some by the different rights.

What difference really does it make for United States Government whether it's private grantees land, grantees from the 19th Century, what difference could make United States whether that's grantee boundary is determined by the state or the federal law.

Why can't you just leave it between the citizens of the state and let it be the question of compensation.

Mr. Edwin L. Weisl, Jr.: Well, I think there are three answers to your question, Mr. Justice White.

First in the case of Hughes against Washington as Mrs. Hughes' land disregarding all others, I think the Federal Government has some obligation as grantor to see that its grantees receive what the Government in fact gave them that it may be a moral and not of legal obligation.

That I think would justify our views to this Court --

Justice Byron R. White: Now if there are some limits to what you can purport to give a private grantee all of that?

Mr. Edwin L. Weisl, Jr.: Of course -- of course.

Justice Byron R. White: Into that direction.

Mr. Edwin L. Weisl, Jr.: Of course, but we want to make sure that they get everything that at that time they were entitled to have.

Our second interest is perspective.

We are the owner, the United States of considerable uplands on the Pacific Ocean and not as I stated in my principal argument, some of this land has owned in trust for Indians.

Eventually, this land will be patented or allotted to these Indians and they will then become the private owners.

We want to ensure now that these Indians will receive what they presently have as beneficial owners when they become the legal owners with the right of these accretions which the workings of the Pacific have demonstrated will occur.

Justice Byron R. White: That's an -- I suppose if you concur private ownership to reach the public line.

Mr. Edwin L. Weisl, Jr.: Not at all.

We simply say that whoever owns the beach must acquire it through legal proper means if it is by a public body and the public body should pay for it under an imminent domain principle, if under the law they do not own it.

Justice Byron R. White: Well, if you had your choice.

You definitely could make a choice I suppose in granting the patents to limit -- make it clear that the limit of its grant, the limit of its grant is for example the vegetation line or it means high water as of the certain day.

You could limit it that way and then the -- and give the rest of the land of the state I suppose.

What was your third point?

You had two --

Mr. Edwin L. Weisl, Jr.: My third point is that the Government is making substantial park and recreation land acquisitions on the Pacific Coast.

Justice William O. Douglas: Well, could I suggest the fourth one?

Mr. Edwin L. Weisl, Jr.: Yes, Mr. Justice Douglas.

Justice William O. Douglas: You own 35 miles just north along the ocean the government zone.

Mr. Edwin L. Weisl, Jr.: Yes, I did mentioned that Mr. Justice Douglas.

I said some of that was Indian land where we might have a future problem that is already dedicated to the governmental use which is very important with United States and the present law.

I thank the Court.

And I trust that I have not added to the confusion with this very difficult point.

Featured:

Lassen v. Arizona Highway Dept. - Oral Argument

Thu, 23 Aug 2012 18:31:23 +0000

Case:

Lassen v. Arizona Highway Dept.

Media File:

84_19661116-argument.mp3

Related Transcript:

84_19661116-argument

Transcript:

Argument of John P. Frank

Chief Justice Earl Warren: Number 80, number 84, Obed M. Lassen, Commissioner, State Land Department, petitioner versus Arizona in the relation of Arizona Highway Department.

Mr.Frank.

Mr. John P. Frank: Mr.Chief Justice, may it please the Court.

This matter comes here on a petition for certiorari to the Supreme Court of Arizona and the issue is the validity of a regulation of the State Land Commissioner of Arizona, Mr.Obed Lassen, my client here which requires that certain lands granted in trust to the State of Arizona by the federal government should be paid for if they are to be taken for the uses which I am going to discuss.

The background of the matter is that we are interpreting an Act of Congress passed in the year 1910.

At that time, there was pending the proposal to admit the 47th and 48th states, New Mexico and Arizona and an Enabling Act was about to be passed.

The legislation was to contain as in the typical acts for the admission of new states provisions to provide public lands essentially and primarily for schools.

In this case, it was contemplated that there would be ten and a half million acres of land given to the State of Arizona and a similar amount to the State of New Mexico to be held in trust for this purpose.

But there had been a background in what was then the territory of New Mexico which disturbed the Congress very much.

There had been what were known as the Tall Timber cases in which the practice had a reason of despoiling public lands in New Mexico by the devise of purporting to sell lands, having them stripped off their mineral or timber to assets and then giving them back to the state again and so as against this background in this Act, the Congress wished to be particularly careful and so it was and it provided not only as had been the tradition in other acts that the proceeds of public lands should be held in trust.

The Congress also provided in this joint act for the two states that the very lands themselves should be held in trust and it provided further that those lands could never be disposed of except by the devise of public auction and that they never could they be disposed of except after an appraisal which would determine the true value thereof.

There was a minimum offset price of so and so many dollars in paper but beyond that it was provided that the land should not be sold or leased I quote the statute in a whole or in part except to the highest and best bidder.

And if was further provided in this section and I think is of special importance that all lands, leaseholds, timber and other products should be appraised of their true value and no sale or no other disposal thereof should be made for a consideration less than the value so ascertained.

Under that statute then the lands were given to the two states and the practical experience has been that they have been frugally handled to the great benefit of education in both of these states.

In New Mexico, which has a keen interest here because as Your Honor understands, the identical statute in the same provisions and hence we are joined here by Mr.Jordan, Assistant Attorney General from New Mexico.

In New Mexico something in the amount of 40% of the educational funds of the state have been developed from these lands and some $200 million has been held in trust.

In our own state we have taken a more conservative approach to the use of the lands of the lands and we still have nine and a half million of the ten and a half million acres in the trust and the proceeds of the remainder are held in a permanent school fund and are used for the purposes of developing education in Arizona.

These lands as enormous ten million acre track I must make clear is scattered throughout the state.

We're not talking about a sector or part of a reservation.

It's rather a checker boarding of the whole state to establish the public lands.

Now --

Justice Potter Stewart: The ones that are still -- the land share which is still on up held by the state, are they rented?

Mr. John P. Frank: No, these are (Voice Overlap).

For the most part except as they may be subject to grazing or very short term leases are simply held that's part of our vast acreage, Your Honor, is perhaps aware that in our state there were 80% of the total land of the state as public land of one sort or another.

This is a relatively small patch of it.

Justice Potter Stewart: And it does not produce very much income.

Mr. John P. Frank: No, these are non-income producing lands being held for use, a million acres has been disposed of in a fashion which I have described.

Justice Hugo L. Black: Mr.Frank, does this trust fund differ and essentially from the school lands in other western states?

Mr. John P. Frank: No, Your Honor.

I have said that these lands were put in trust and I have emphasized that because it dramatizes the extraordinary care Congress took in this case but functionally it's all the same.

And that's why eight states have joined us in our position here today and why we are generally supported by all of the states because what has happened in Arizona is a peculiar localism unique to that one area but one which creates a precedent which at this period will prejudice all the public stands of the western states.

To be precise, as to what has happened.

A question when lands are to be used for highways.

And lands are to be used for highways and for transportation or for some such purpose and I will explain in a moment why I used that broad term.

They must be paid for and when the lands are taken for example to put in a road or a utility line or something of this sort, do the provisions of the trust law which provided all of the lands without exception shall be paid for in the minimum value do they apply or is there some reason for making an exception and not making a charge for those purposes.

What has happened in our own state is I think a product of the peculiar road building background there.

We are in a state which is one has developed relatively recently and in the earlier periods, local and county roads consisted as some of you has seen there a little more than running out of a drag device across the desert than sending a car long after.

There were decisions in our state and only in our state with an exception I shall mention in the 40s holding that those did not need to be paid for under the Enabling Act.

The situation has no radically changed because the roads become gigantic boulevard in interstate highways and we're talking about enormous quantities of land.

And in these circumstances, the land commissioner of Arizona who is the trustee, Mr.Lassen, issued a regulation and this regulation provided that lands to be taken for highway purposes should be appraised and could be made available for this purpose but only at their true value after appraisal.

Now, at that point, the highway department of the state instituted this action.

And this action is a suit in the nature under our practice of a written provision brought by the highway department against the land department to prohibit it from enforcing that regulation.

The matter was presented to our Supreme Court below, and the problem that was presented there is also a problem here that the attorney general is in the sense in both sides because he represents both state agencies.

This is perfectly appropriate under our practice.

It is I'm surely highly undesirable under yours.

So that what happened there was is a practical matter that the representation of the highway department was placed on the hands of the firm which represents a major utility.

A reclamation utility which wishes I am sure to follow along and put its lines in without thing for them to.

The utility appeared in support of the highway department amicus in the trial court.

Meanwhile the teachers of the state have the deepest possible interest in the future of the education and of educational lands and I was retained especially by the teachers for the purpose of filing an amicus brief there and have been denominated a wholly nominal assistant -- special assistant attorney general but in fact representative of the educational interest in the state to bring the matter here.

Now, I pause with those details to make clear that I think we meet the standard of genuine adversary proceedings and it is adversary indeed but I felt that you should know what the background circumstances of the representation ought.

The matter as they say came before our state Supreme Court and the state court in a lengthy opinion held that regardless of the trust language the lands need not need to be paid for and thus prohibited the use of the land department's regulation we brought them out of here.

Now, what is it that is the decision or the essence of the decision of the court below?

What it comes to is this.

Well, it's a lengthy opinion it can boil down to only a couple of sentences and those are set forth and I'll simply mention them because you'll then have in the nutshell exactly what the decision was in the controversy is.

The court below said that these lands need not be paid for and that the Enabling Act and that these provisions which I have read here need not be observed.

First, because and I quote "the respective right of way for these highways takes less than a fee estate".

In other words, they said, this is only taking an easement and when you take an easement you don't have to pay for it.

Second, the court below said the trust and its beneficiaries the school lands are not deprived of anything of value.

It is well known that good highways throughout the state increase the value of the lands.

In other words, the court below reached its results under two grounds, (a) that this is a taking of an easement and that therefore that's free and you don't have to pay for it.

And on the ground (b) that the school --

Justice Potter Stewart: Is that true that as a general matter under your state law?

Mr. John P. Frank: No, far from it Your Honor.

It is not only natural but let me direct myself to that because nobody seriously supports that position of our Supreme Court here.

The Government has not said a word in behalf of us and neither has the other side.

Now, in the first place Your Honor, while it may be true or not that taking an easement is that the taking of roads for our purposes is a matter of taking an easement.

This is immaterial and frankly non-rational for two reasons.

First, clearly from every practical standpoint only in interstate highway across the land of the State of Arizona with tons of concrete on the ground is in every functional sense identical to taking a fee that makes any difference.

But secondly and the reason why this becomes immaterial and I shall not mention it again and I am sure you'll hear no more of it from the other side, is that the statute clearly is the -- I am speaking of the Enabling Act.

The Enabling Act isn't restricted to the taking of fee interest.

The Enabling Act says that there must be payment in full at the appraised value for the -- for any, it uses that broad term for any disposition of the lands and on top of that it nails it down Your Honor by saying that there must be taking in full for the use of the lands so that regarding the easement as regarding this as an easement if it is and it clearly from the functional standpoint would be almost absurd the use of property concepts but regarding at as such it doesn't make any difference because the statute says that whether you take this position any disposition what you take the use of is immaterial.

So the matter comes to the remaining elements of the case and that remaining element of the case what the court below has said here in essence that it had -- I mean to judge you by it but it is similar to the -- what's good for General Motors is good for the country approach.

What the court below is saying is roads are good for the state, what's good for the state is good for the school lands.

This will increase the value of the school lands; therefore you don't need to pay for it.

What's for the general good is sufficient and there need not be dollars in hand paid, that's the essence of the decision below and it's the essence of what has been the peculiar Arizona position on this subject.

Now, in the first place Your Honor, allow to devote myself to that subject for the balance of my argument.

We begin number one with the language of the statute itself.

We begin with the fact that the statute expressly in the clearest possible way says that lands are to be paid for.

It does not permit of the so-called doctrine of enhancement.

It doesn't say that the land shall be valued and that there should be credited against the value whatever plus that there may be thought become as a result of the taking but nothing like that is in this law at all.

Instead it does in the most expressed possible way put certain statutory minimum and then in the most exact possible way says that there should be an appraisal and there should be no sale of any lands or disposition of any lands, any taking for any use of any land except of that level of value.

Now, I have begun by saying that this was a statute which have had very close congressional attention particularly because of the background of land scandals against which it was passed.

And this is so Your Honors, they -- we have set forth a good deal of the legislative histories in our briefs and I won't give you more than the flavor of it here.

But I wish to note that these particular restrictions were added in their final forum by the Senate Committee after full hearings and that the report show great emphasis on what the statute says so that the Senate Report says that these lands shall be held in trust to be disposed of only as therein provided and the question was expressly considered before one of the congressional committees are these restrictions too heavy?

Are they severe, can you live with these?

It is alright?

And the representative of Arizona appearing before the committee, appearing in behalf of the territory in asking for statehood said that when asked about these careful restrictions based on the lands and I am quoting from the question he said I believe the restrictions on such public lands cannot be made too broad.

In other words, the territory in asking for statehood was welcoming the very kind of provisions which in fact were put into this law and the report of the interior department shows that in -- as a result of the very investigation that have been made of land frauds, these provisions saying you can only take it this way, you can only price it this way had been put in.

The final report of the Senate Committee began and I give you this as indication of the tremendous earnestness of which the committee approach the problem began your committee cannot too earnestly call attention to the extreme care that should be taken with every provision of a bill like this and I go on to tell that but they were particularly meticulous in a matter of this kind and this matter of legislation.

Now, what has happened since?

We have had not merely a legislative history of great care.

We have had a subsequent congressional development of great care in dealing with this Act.

Because this Act is of course subject to amendment and the point is that whenever it has been proposed that there be any deviation from these careful pricing terms or from the careful disposition terms the interested parties have gone back to Congress and presented the matter and they have gotten an amendment if Congress wanted to give it and because this trust was accepted by the State of Arizona and is part of our Constitution, this may require an amendment to our state constitution as well.

But to give one illustration just a single illustration which will dramatize it I think.

We have a little village in our state called the town of Benson and the town of Benson is so small that it was unable when it wanted a section of land just that small amount for a public park to pay the $3.50 an acre amount which would be needed even for that 600 acres.

They simply couldn't afford it.

We are talking about a very small town.

And therefore, an amendment was passed through the Congress which expressly authorized the giving of a section of land, a single section to the town of Benson without compensation and the legislative history expressly shows that this was done because there was no way of dedicating that one section for a public use except by paying for it other than by this amendment of the Act.

Now, Your Honors, I have no doubt and I am sure no one did then when the sincere truly sincere people who passed that act passed it but they felt that the giving of this section to Benson would improve the value of the town of Benson and improve values of the land around it and doubtlessly the giving of that section would do something for the general values of all of the rest of the school line of the region or the state or whatever but the point is that it was not supposed that the piddling amount of $2000.00 worth of land could be disposed of without compensation except by an Act of Congress and yet under the Arizona decision and practice from which we appeal, $9 million worth of land have been taken from this school trust funds already and are irretrievably gone --

Justice Abe Fortas: Mr.Frank (Voice Overlap).

Suppose we reversed on your theory.

What happens with respect to the land that's been transferred in violation of the trust?

I notice your Consultation says that transfers in violation of the press have been null and void.

Mr. John P. Frank: Yes, Your Honor and that only says that the -- not only that the Constitution says so but the Enabling Act says so that any transfer is null and void and whether in those circumstances Mr.Lassen will be able to bring some appropriate action to try to recover as to those things whether it's a matter of policy will do so I must say I think we don't know whether there will be any retrieval because this practice of dribbling away our trust funds has been going on for 20 years.

Justice Abe Fortas: What is a matter of theory or principle in your opinion does that mean that title to those lands transferred in violation of the Enabling Act in the Constitution in regards forthwith to the trust fund or does it mean that it's voidable in the sense that state action has to be brought.

Mr. John P. Frank: Your Honor, I must say in candid that I am in doubt because the state is simply not considered how to deal with this problem or at least has not advice.

Justice Abe Fortas: Nothing like this is the reason --

Mr. John P. Frank: This is not the reason.

We have had such an action.

It is clear that it ought to arise and it is clear that the trust had been invaded to this amount but I cannot with a responsibility with which I would like to answer your question state what would happen because thoroughly -- because we're dealing really with the public land law of all of the states, we would have at that point to make a research as to how this has been treated elsewhere and I am sure there would be residents on the point with some of the jurisdictions but we simply don't know.

Justice Potter Stewart: Aren't these lands subject to eminent domain?

Mr. John P. Frank: Well, I want to turn to that Your Honor and with some care, as to the eminent domain face of the matter, there is a division of authority on that and with your permission since that that becomes a major part of my discussion I like to -- may I reserve that one question for just a moment Mr.Justice?

Have I met your point at the best of my ability Mr.Justice Fortas?

The argument which is made here then by the other side is that enhancement of value is to be presumed and that this is to be presumed to be an offset so that you don't have to pay for the lands when you take them, whether you take them for highway purposes or for utility or other purposes for which they might be taken.

Now, there is this difference of position amongst our adversaries and I identified only so that I may sharply and fairly state our own position.

The position of our adversaries divides in this.

The highway department as you will shortly hear from takes the position as the court below did that one must always presume that there is enough value created by a road so you never have to pay.

You should be thankful that a piece of your land is taken under the road is put upon.

The position of the federal government is difficult.

The land division takes the position that we are right in principle and that the Supreme Court of Arizona should be reversed but that in some instances, it will turn out as a matter of fact that there is an enhancement of value as a result of the road and that therefore there need be no compensation.

Our position on that point and our position on the total matter is this, we say when Congress established this trust it could have provided for an enhancement theory of valuation if it wanted to.

It could have been put in to the statute a provision that there shall be credited back any value which is assumed to exist as a result of the disposition of the land.

After all the land was Congress says to give away, it could have made its own conditions but the point is that it vary clearly didn't.

It simply didn't see fit to do so.

Justice Abe Fortas: Well, that's not before us anyway, is it?

That's the only question for that aspect.

I noticed the statement in the brief of the United States that I would think that the only question before us is whether there is merit to the absolute position that is to say that because of a fugitive substitute value that's created that the trust fund is not entitled in any compensation whatever whether you take into account or don't take into account, the (Inaudible) values not before us now.

Is that right?

Mr. John P. Frank: No I think not Mr.Justice.

I'm afraid I got into the double negative here.

I think that the matter needs to be before you in this that if you reject the position of the Supreme Court of Arizona and if you adopt our position, should that appeal to you then it would necessarily follow and there must in candor now just as the government position falls to because it is our position and the request we make to this Court in this appeal is that the statute is to be enforced.

That the statute provides for a system of valuation, this regulation provides for a system of valuation.

This regulation which we are asking be upheld says that no lands may be disposed of except that they appraise value.

It's taken from verbatim from the statute and if therefore the Supreme Court of Arizona is reversed and the regulation is thereby upheld so that be the result then I would think that the Government position could fall with it so that I am compelled to say that that question is so interlock here that I don't believe it could be separated out perhaps by ingenious drafting one might come up with an opinion that did not reach that matter and of course that's all is possible.

But I believe in all candor it's here, Mr.Lassen's regulation says that there shall be an appraisal and no disposition of the lands except that the appraised value in every and does not provide for a credit in case of some incremental value as this assumes.

Now, the matter which is before us is not one of first impression on this Court.

Virtually the identical question has been before you previously in the case of Ervien to which I would like to address myself.

I should make clear that the various states have also dealt with this subject as one of you asked me earlier is this, I think you did is as typical of the other land states, the answer is yes.

This question crops up in substantially all of them.

There is one case and one only in the country which is against our present position.

There was an early Wyoming case, the decision of Ross which takes essentially the view of the Arizona Supreme Court.

What you have before you a brief from the attorney general of which the attorney general of Wyoming has joined showing that that is not in fact followed in that jurisdiction.

And the whole weight of the state cases has been as I am arguing here a leading example is the case of Walker which comes from the State of New Mexico and there was thus a flat conflict just directly on this very statute, New Mexico and Walker having decided this question the opposite way of way in which Arizona has decided but apart from those state cases which are adequately discussed in the brief, apart from those cases, there is the decision of this Court in Ervien which is a matter which arose from New Mexico.

What happened there was this.

The State of New Mexico with a foreshadowing of this exact point of view had said, A good advertising program for our state is just what we need and it will increase the value of all of the lands.

Everybody will be better off as a result and therefore trust funds may be used for this general promotional purpose and we will assume that there will be a sufficient value caused by those -- that advertising program, so that the lands will gain more than they lose by this disposition of the funds.

Now, that matter was put into issue and in coming into issue it came here following an extensive consideration of the matter in the Eighth Circuit Court of Appeals and in the Eighth Circuit the almost precise point was considered that is the exact highway question just what we're talking about, what the Eighth Circuit said is it would be but a step further to argue the advantage that would approve to the trust from the physical construction of and so on and then it says specifically such as systems of public highways.

In other words, in Ervien the Eighth Circuit expressly held out the use of the funds for public highway purposes as precisely the kind of thing which was not to be allowed.

This Court adopted the Eighth Circuit opinion.

You had a short opinion of your own but the Eighth Circuit opinion is expressly incorporated by reference here and this Court said and I'd like to emphasize these words to preclude any license of construction or liberties of inference.

It was declared that the disposition of any of the land for any purpose other than that provided therein would be deemed to breach of trust and this Court said the dedication we repeat was "special and exact".

Justice William J. Brennan: What is this case?

Mr. John P. Frank: That is the case of Ervien, Your Honor, which is discussed in our brief at pages 16 and 17 the citation here is 251 U.S.41.

Now, Your Honors what then is the argument that is made for the other side?

What is the contention which is before us?

Here we have a statute that in so many words, really is as fairly as it's possible to speak English.

We have a statute which in so many words says, that lands must be paid for and that this is how you do it and they have to appraise.

The argument that has been made for the other side is essentially that an Enabling Act simply doesn't have to obeyed that strictly but the states are entitled to take a latitudinarian view of their enabling acts.

The argument is made essentially and it is based almost entirely on the case of Coyle against Smith.

Now, that was the case involving the Oklahoma Enabling Act and it was the one under which it was held that as an equal footing matter.

Oklahoma could move its capital from one place to another regardless of the provision of the Enabling Act.

This was on the grounds of equal footing.

Your Honors, that case Coyle against Smith far from being authority for the proposition for which are decided happens to be expressed authority going the other way because the movement of the capital was held to be a matter of equal footing rights but this Court in that case expressly said that this would not apply to regulations, I am quoting, "touching the sole care and disposition of the public lands or reservations therein."

So that in other words, Coyle against Smith was an expressed example of the sort of thing which was not to be allowed.

I will turn if I may to Justice White's question after lunch.

Chief Justice Earl Warren: You may continue your argument.

Mr. John P. Frank: Thank you.

Mr.Justice Stewart, I am advised by my associates that I may have misled an answer to you.

You asked about leasing and I meant to say and I think I did that the revenues were not substantial.

This does not mean that the lands are leased.

Justice Potter Stewart: Except there is mind a grazing in short term leases.

Mr. John P. Frank: There are leases but they don't graze it.

Justice Potter Stewart: Yes.

Mr. John P. Frank: Now, I would like to take the bulk of my few remaining minutes if I can save a tiny bit I shall but I may be unable to answer Justice White's question which raises the one I think really have a problem in the case.

Mr.Justice White, the question arises are these trust lands subject to eminent domain at all?

The answer at least in the cases is this, under virtually vertical language in 1903 Idaho decision which we've discussed fully says yes, that they can be, that they are subject to eminent domain.

In 1910, Montana decision is the opposite.

It rejected the Idaho decision and said no.

Our act was passed just before the Montana decision.

In 1921, Congress passed the statute dealing with the argument raised by the Montana decision and in that Act which dealt only with the states under that particular Enabling Act, it didn't amend the law generally, Congress declined to take a position.

It said we don't have to decide its language was a strict and perhaps accurate interpretation of the acts with bar eminent domain therefore, in order to remedy this situation, we expressly allow it and in that Act they did.

Now, how does that bear in that situation?

What our land commissioner has done is to provide that all land must go by appraisal but on the other hand under this regulation he does not require that it be sold at public auction.

The statute says it must be sold at public auction.

This regulation does not do that.

It does not because the appraisal procedure is part of our state eminent domain procedure.

And he has consciously imported the imminent domain devise following the Idaho decision and sought to use it on the theory that the eminent domain procedures can be applied and therefore he takes the appraisal device from our eminent domain law but does not require the option.

If this is permitted Mr.Justice White it is implied exception under the theory of West River Bridge and Dix that all acts are subject to the eminent domain power.

I would like to make clear that we think this is the sound review when we've advanced it in our brief.

We think this is acceptable.

I also wish to make clear that this is not of the essence of our position.

In other words, we could perfectly well go through to the form of appearing to auction off a 50-mile strip of a thousand feet wide.

Obviously, there's only going to be one bidder and it would be a pure ceremony.

But that can be done and while it's not in the regulation, we haven't the faintest objection of putting it there if this Court feels that we can impart eminent domain theory into this case.

So, so far as we are concerned, it's essentially a matter of indifference but I do report that the problem does exist, Mr.Justice White.

It is here and we have in our actual conduct attempted to apply that procedure.

Now, I may simply say this in conclusion and I hope I am saving a moment.

The Congress has given 10 million acres to the State of Arizona.

It did pass an act with what the congressional committee report shows was extreme care with painstaking care.

This Court has said that it was a painstakingly careful act about your own language.

Now, let me simply put this question to my friends who are next to me.

If you have the task of drafting a statute, if you were a member of Congress, if you wanted to draft an Act which would provide that all lands that were taken had to be paid for in appraised value.

How would you possibly do it any more precisely than to say that all lands, leaseholds, timbers and other products before bringing offer for any sale or other disposal shall be appraised as a true value and no sale shall be made for less than that amount.

I submit Your Honors that it is beyond the capacity of the English language to be more exact, more precise, more specific than this and I leave my adversaries with a question suppose the Congress of the United States didn't want to do exactly what we're saying it did here.

How could it conceivably have done a better job than it has been done in this case in this very case?

Our state stands alone in this country and taking the view, the trust lands can be taken and not be paid for.

Nine million dollars worth of land are here irretrievably gone unless we can treat them as void and somehow recover for that loss.

We respectfully submit in behalf of the educational institutions of our state that this is an invasion of a public trust which must stop.

Thank you.

Chief Justice Earl Warren: Mr.Weisl.

Argument of Edwin L. Weisl, Jr.

Mr. Edwin L. Weisl, Jr.: Mr.Chief Justice, Justices of this Court.

The position of the United States in this case as an amicus curiae arises because of the federal government's interest in these trust lands as grantor of the trust lands because of the duty imposed upon the attorney general by Section 28 of the Arizona, New Mexico's enabling acts and because of course of the federal government's growing interest in the field of education and its financing.

Before I embark upon the details of its position, I would like to address myself to a question as of the counsel for the state land department by Mr.Justice Fortas.

That is, what is the real question before this Court?

Is it simply in the absolute sense, must compensation be paid by the state when it takes school lands for public purposes?

If that were the naked question before this Court, I think all parties would say that perhaps it has already been answered by agreement for even the state highway department now refers in its brief that value must be paid for these school trust lands.

However, they say that the value is paid by the inherent enhancement that arises when a highway is built.

Of course, in a real sense that position is that value need not be paid because if you can conclusively and irrebuttably presume compensation as the highway enhancement rather as the highway department urges you will foreclose any inquiry as to what really happens to the value of the trust when the lands are taken.

United States decision in this case is that you must look at the trust lands as a whole in a given state.

They are there to produce income to support and maintain the public schools of that state.

The question is when a trust land is taken for a public purpose such as a highway, is the earning power of that trust impaired?

Is it no longer as valuable after the taking as it was before?

If that is so, and the trust is breached and what the state has done is wrong.

Can you consider the question of enhancement of other lands when you take a parcel, a school section to build a highway and I think you can.

Let us say for example that the entire value of the lands -- school lands in the state is $10 million and you take one section you build one road on it.

Clearly, that section no longer has a value in itself because the road is so large that no one would lease it, no income can be earned from that school section.

But if this highway, his access to a whole new portion of the state so that the lands there can now leased at high rental, can be sold for high prices then of course it is fair to state that the trust is preserved even though compensation is not paid by the state for the particular parcel.

On the other hand, it is equally reasonable to state that in certain cases, a taking for a highway will result in no enhancement of the remainder of the trust and the total value the trust enhance its earning power will be diminished.

A simple example, an access road is needed to make it easier to get to the state prison.

I could not see that this would increase the pecuniary value of other school lands within a state so that you can say enhancement can be presumed.

Justice Abe Fortas: Would you apply that principle to private taking of a private property?

Mr. Edwin L. Weisl, Jr.: The doctrine of benefits Mr.Justice Fortas is applied in many instances in eminent domain proceedings.

The requirement as I understand it is that the benefits must be special and palpable and capable of ascertainment not merely speculative.

That is you can say it is more than you can say to be able to say that it is nice to have a road here.

You have to say that there is a road here now and the remainder of this man's property is benefited because he has now access to the biggest city in the state, he now can develop it for a residential purposes.

Justice Abe Fortas: Well, would you agree that whatever the principles are in the field of eminent domain with respect to private property that those are the principles that have to be applied here?

Mr. Edwin L. Weisl, Jr.: I think we go a little bit further because in eminent domain proceeding, generally, the remaining property benefit that has to be closer physically and in relation in terms of use to the property actually taken.

Justice Abe Fortas: Well, why do you do that?

Why do you go further up here?

Mr. Edwin L. Weisl, Jr.: Because the purpose Mr.Justice is to preserve a trust of a certain value so that it can earn a certain amount of income to provide for public school.

Justice Abe Fortas: I am not certain.

I am uncertain and -- but that is --- is that your conception of what this trust is?

Or isn't it a trust of a construed on the basis of ordinary principles of law which parcels of property were place and those parcels are taken out and parcel by parcel that has to be taken out, they've got to be subjected the value of judgments?

Mr. Edwin L. Weisl, Jr.: I think we agree on the latter part of your statement that value judgments have to be made.

The reason that I feel you can go a little further than the eminent domain proceeding is that the state highway department for example is taking a road for a public purpose to require to pay an amount of money that will make the trust greater afterwards than before is placing an undue burden on the state.

Justice Abe Fortas: Suppose a utility company condemns a track of land in an enormous ranch for a utility or right of way for its supposed (Inaudible) and I suppose that almost every time that brings a good deal of benefit to -- on the land and the offset is are you telling me that you offset the benefits to a land that is not taken?

Mr. Edwin L. Weisl, Jr.: Yes Your Honor, that is the rule in condemnation and I -- it was first enunciated by this Court as early as 1897, in the case called, not cited in our briefs Bowman against Ross.

The requirement is that the benefits have to be readily capable of ascertainment than measurable so that an expert witness and remember that these are tested in adversary forum with expert testimony on it.

An expert witness can say in fact your property, your remaining property is more valuable, you can sell it for more.

Justice Abe Fortas: Well, I was hopefully could make that into -- find it unnecessary to pass on these questions and I am not sure that I am not still inclined to believe that we can because it seems to me that for the highway department's position to prevail when we have to indulge in assumption that there's a complete offset because if there is any discrepancy to the value of the land taken in the incremental value as a result of building a highway then their case falls, it seems to me, we don't have to go any further.

Mr. Edwin L. Weisl, Jr.: I agree completely.

We simply say that a factual determination must be made as to the actual effect of the taking.

Whether which is one that is capable of being made because expert testimony would be available to inform the body making the decision, be it the Court or an administrative agency as to whether the remainder of the trust is enhanced in value or whether it is not enhanced in value.

The minute that is not enhanced in value of course, the compensation in the form of cash must be paid by the state authority.

Chief Justice Earl Warren: Mr.Weisl, I was wondering about another situation now that question temporary when the railroads came through they were given land grants of every order of the section for 20 miles on each side of the right of way.

How was that plan treated in Arizona western states when it comes to condemning for a highway?

Are they subject to the limitation on eminent domain that you put on in this case or are they treated differently?

Mr. Edwin L. Weisl, Jr.: They are treated I believe Mr.Chief Justice although I can't say this with great confidence.

I believe they are treated with greater strictness that is our rule that we urge here is somewhat more liberal to the taking authority than the rule in respect to these railroad land grants.

They are treated like private persons we say this trust may be treated a little more -- little less liberally.

Chief Justice Earl Warren: Less liberal.

Mr. Edwin L. Weisl, Jr.: I say a more liberal rule of benefits can be applied in these trust lands when a state, another state agency is taking them that is if you look through the benefits of the trust as a whole rather than to immediately adjacent parcel of property.

Chief Justice Earl Warren: Well what rule would be applied to those land grants that were granted for the sole purpose of developing the country?

What rule do they apply if it's stricter rule?

Mr. Edwin L. Weisl, Jr.: I think they apply these exact same rules I believe to other lands that are in normal, private ownerships.

That is to say you can offset benefits against compensation due provided that it is adjacently in the same use and what have you but you can't say that that the benefit to a section, thousand miles away would be recognized into the offset.

It has to be much more closed.

I want to say however that our position does not foreclose a state paying compensation measured by the rule asserted by the state land commissioner petitioner here.

We are saying that as a minimum, we think the requirements maintained by the trust would be met by the recognition of benefits on some cases when they are actually capable of ascertainment and measurement.

As to the contentions made by petitioner that the recognitions of these benefits are foreclosed by the enabling act, I think what Congress was speaking of was in terms of actual disposition to private parties which is a quite different matter than changes of ownerships through eminent domain proceeding the latter having inherent safeguards of judicial review of an initial determination at least in Arizona by an administrative agency whereas a provision relating to an absolute outright sale by a state through a private party is an area where review is not inherent and not necessary.

In fact the very thing complained of in the Tall Timber cases, eminent domain where both parties are presumably interested in the public good and the public benefit is quite different.

I think the enabling act permits the interpretation that we quite submit of that is benefits to the remaining land can be recognized and compensation in some cases need not be paid in form of cash because it has actually resulted in terms of enhanced value to the remainder.

Justice Byron R. White: Well, can the same -- by the same token I suppose then the state could give 100 acres of land to IBM to build a plant because once the IBM plant is there, the surrounding property will be three times as valuable and there will be a great -- sort of a nucleus where an industrial development in the (Inaudible) expert real estate testimony that supported those values I suppose it would take the same approach?

Mr. Edwin L. Weisl, Jr.: Well I wouldn't really because the enabling act speaks as to actual voluntary I think dispositions by the state.

That is to say, these are truly prohibited by the enabling act whereas eminent domain is not specifically dealt with in these enabling acts and I think it was probably overlooked by the Congress.

Justice Byron R. White: So you would go to line between -- between increments attached to a disposition?

Mr. Edwin L. Weisl, Jr.: Yes.

Justice Byron R. White: An increment that arises from the state's own use?

Mr. Edwin L. Weisl, Jr.: Yes, some of the Acts for example --

Justice Byron R. White: Do you say that the state could take the property, 500 acres of it for a golf course because the surrounding property would be contend as valuable?

Mr. Edwin L. Weisl, Jr.: I think if it is for a recognized public purpose for which the state has the condemnation power, I would say that that would be correct whereas the enabling act specifically require a minimum most of them do anyway, require minimum payments for disposition to private persons.

Justice Abe Fortas: If that is so why (Inaudible) anything for -- when it takes for a highway?

Mr. Edwin L. Weisl, Jr.: Because of the I think clear congressional purpose to create a trust for schools to preserve the value of that trust so that the intent of Congress which was to have a trust for schools be continued.

Justice Abe Fortas: Are you saying that all the procedures and standards of the Act don't apply to that kind of a taking?

Mr. Edwin L. Weisl, Jr.: Yes, sir.

Justice Abe Fortas: And apply only to a private taking?

Mr. Edwin L. Weisl, Jr.: Well, I think that the requirement for preservation of a trust through some form of compensation remains in eminent domain the compensation on occasion can be in the form of benefits to the remainder which are so great as to outweigh the amount of cash loss to the particular track of land.

Justice Abe Fortas: Well, is your position that if you can -- is your position the same as Mr.Frank's in this respect or is it different?

Mr. Edwin L. Weisl, Jr.: We agree that the compensation must be paid.

We are in slight disagreement in that he says that you cannot offset general benefits to the remainder of the trust.

You have to actually pay cash to --

Justice Abe Fortas: Well, does he agree of the procedure of the standards of the Act do not apply to a taking for a governmental purpose?

Is that what you're telling us now as I understand it?

Mr. Edwin L. Weisl, Jr.: You would then -- you would take a far harsher view, we would say that virtually every safeguard in the act applies to the sale of the private people, persons apply.

However, the eminent domain proceeding are not specifically provided for substitutes for some of these requirements such as the public auction to the appraisal procedure arrived at through expert testimony which is the equivalent of the public auction.

The experts determine the market rather than bidders which I think is the same thing.

I thank the Court it yield back --

Justice Hugo L. Black: Suppose you were (Inaudible)?

Mr. Edwin L. Weisl, Jr.: Federal government would, yes Your Honor and I believe that this doctrine obtained in Arizona, yes.

Justice William J. Brennan: Your theory is that since you do have the power of eminent domain, you play that?

Mr. Edwin L. Weisl, Jr.: Yes.

Justice Tom C. Clark: Despite the enabling act, the eminent domain (Inaudible) rather than a sale.

Mr. Edwin L. Weisl, Jr.: Well, despite the eminent domain is different than a sale.

It's partly also that the purpose of the enabling act is preserved and is maintained when the theory of valuation and compensation that we advanced is followed, i.e., that the trust is not impaired because it is as valuable after the taking as it was before.

And I submit that this is capable of measurement through expert testimony and through analysis of the effect of the proposed improvement the highway on the remaining trust lands.

It would be rather unfair if the state builds a highway that opens up a whole new section of the state which is replete with undispose of school lands and has to take cash for the taking of the school land in the other -- on the one hand, on the other hand, the school land is a tremendously more valuable than the state, the schools directly benefit in increase income.

Justice Byron R. White: By the way Mr.Weisl, in terms of paying cash, when does the federal highway interstate highway for example, who has to pay for the exhibition of these --

Mr. Edwin L. Weisl, Jr.: The federal government pays that.

Justice William J. Brennan: That's the reason for the government (Inaudible)?

Mr. Edwin L. Weisl, Jr.: Mr.Justice Brennan, I represented this Court but that was never in our mind at least my --

Justice William J. Brennan: I just wonder Mr.Weisl, I take it it's not because the highway went through anything else but these school lands which perhaps are worth -- Arizona got them at 25 cents an acre and now worth $5 an acre, you wouldn't say the state can give away $100,000.00 worth because of what's left is still worth a lot more than (Inaudible)?

Mr. Edwin L. Weisl, Jr.: No, sir I would not.

I would really -- what really weighs heavily on me is the fact that the state highway department is taking for a public purpose that is an act which is of value to the taxpayer or the citizen of the state as a whole.

It's a little bit different than a private acquisition.

Justice Hugo L. Black: Can you say the State of Arizona would have powers to build highways to these schools on land and assess the school lands for their benefit confirmed?

Mr. Edwin L. Weisl, Jr.: No, sir I do not.

Justice Hugo L. Black: Well, if not why can they do it the other way?

Mr. Edwin L. Weisl, Jr.: Well, because I believe that the value of the trust is preserved if actual benefits accrue the remainder and therefore --

Justice Hugo L. Black: But then that, the way to test that out is to test it out under the general laws of the state.

Mr. Edwin L. Weisl, Jr.: Well, I think that in essence --

Justice Hugo L. Black: Like they build that highway?

Mr. Edwin L. Weisl, Jr.: I think, in essence that is what would happen.

That is an adversary proceeding which would take place which the condemning agency of the highway department would have the burden of establishing these benefits as offsets against what they would ordinarily owe for the land taking and I would say that the normal state adversary eminent domain proceeding would --

Justice Hugo L. Black: I may find it a little bit difficult to say that the state can't directly assess the school lands, the value of the highways built through them or next to them be a little difficult to leave over there and say they could do it indirectly by the method you suggest.

Mr. Edwin L. Weisl, Jr.: Well, all I can say is that to assess them would be to actually deprive them of money which is not authorized by the enabling act where as to offset benefits to them would be to preserve the value of the trust intact so that it would still have the capacity to earn the same amount of money for the state school system or perhaps even more than it did before the taking.

Justice Hugo L. Black: So that will leave it up to the state to fix school lands that given to the state for school purposes only intact but nothing else will work and that's the state decide when it build roads there and then make them pay for it.

Mr. Edwin L. Weisl, Jr.: Well, I think if a requirement is maintained that the burden is on the state to establish these benefits and that the --

Justice Hugo L. Black: But I am talking about special benefits.

That way, against land which is set apart for other purpose.

It wasn't intended whether to leave that land over for assessment by the state to build roads through the lands.

Mr. Edwin L. Weisl, Jr.: That, I think that's correct.

However, we have not brief and I do not dispute that the state has authority to take these lands as an eminent domain proceedings for public purposes.

Justice Hugo L. Black: If it pays.

Mr. Edwin L. Weisl, Jr.: If it pays for which and I just -- I simply said that manner.

Justice Hugo L. Black: That maintain money?

Mr. Edwin L. Weisl, Jr.: I still simply say that the manner of payment sometimes can be and in the context of the state ought to be a recognition that the lands are compensated by the benefits resulting from the improvement.

Justice Hugo L. Black: Those raise him there problematic method of computation in order to protect the state's interest and the school's interest?

Mr. Edwin L. Weisl, Jr.: Well, the benefit -- the burden should be on the authority which is taking the land.

Justice Hugo L. Black: Well, whether you have the burden (Voice Overlap) you still just prevent the complications of this.

Mr. Edwin L. Weisl, Jr.: It does indeed and these are difficult problems.

All these appraisals are --

Justice Hugo L. Black: All these are difficult to protect the states interest or school's interest to possess -- to pay money, isn't it?

Mr. Edwin L. Weisl, Jr.: I would say that it certainly is simpler and I would not --

Justice Hugo L. Black: And most certainly they have it isn't it?

Mr. Edwin L. Weisl, Jr.: It is certainly safer and far more certain.

I do not think in the 20th century though that you require that rigid safeguard when it is possible in an impartial forum such as the court which would review these matters I presume to establish what has really happen.

Expert testimony is available to say that a development is now possible in this far of the state.

Justice Hugo L. Black: (Voice Overlap) is not usually good as much?

Mr. Edwin L. Weisl, Jr.: Well, that is true.

That is true but it is very expensive Mr.Justice Black as we know in the lands division.

Chief Justice Earl Warren: Mr.Weisl, may I ask you one other question.

If we adopt your theory of the case must that be the rule in all the western states or would the parties be left to the condemnation procedures in the various states.

Mr. Edwin L. Weisl, Jr.: I think the states would be left to their normal procedure.

We're suggesting a rule that I think would be a minimum rule that would probably satisfy the purpose of the Enabling Act if the state feels that it should be more for example adopt the rule that's proposed by Mr.Frank today, I think that would be perfectly permissible.

Chief Justice Earl Warren: But in other words, would they have to treat this trust fund the same as they would any other property that they take from the states?

Mr. Edwin L. Weisl, Jr.: No sir, I don't think so.

I think they'd be required to make a recognized of minimum standards such as the one the government advocates here but they will be free to treat for their trust as much accord the trust to a much greater degree of protection in private lands or the same degree of protection as private lands [Audio Cut]

What we are merely proposing I reiterate what we think is a minimum standard would preserve this.

Justice Abe Fortas: Well, you will have -- you rely on anything in the act, well the act does say that for purposes of the U.S.irrigation projects some of these lands can be turned on to the United States, isn't that right?

Mr. Edwin L. Weisl, Jr.: Yes.

Justice Abe Fortas: But the Congress didn't say anything about the state thing that would have taken without paying money.

Is there anything in this Enabling Act that supports your argument?

Mr. Edwin L. Weisl, Jr.: The state -- yes I think the mere fact that the state never even -- the Enabling Act never given came to grips with eminent domain providing that the lands can only be disposed of through public auction is not really an indication that the Congress intended to foreclose the eminent domain.

I think they were concerned with the problem of the state making dispositions to private parties for inadequate considerations as it had in these Tall Timber cases.

Justice Abe Fortas: Are you relying on something that's not in the act instead and you're saying that if Congress intended to cover it they would cover it.

Mr. Edwin L. Weisl, Jr.: I think that if the eminent domain power is so inherent the power of the sovereign such as the state that we ought to require a great deal of Congress before we rule that the state has been deprived of them.

Justice Byron R. White: Mr.Weisl, what do you do about Ervien?

It seems to me that presented the enhancement argument of the court there?

Mr. Edwin L. Weisl, Jr.: Yes.

Justice Byron R. White: And it seems to me that Court almost squarely rejected it.

Mr. Edwin L. Weisl, Jr.: Well, I think that Ervien is different from this reason.

One it required the school trust to actually to part with cash income that it received from these lands to 2 or 3%.

Secondly, the benefit --

Justice Byron R. White: They were saying -- as they were saying they will back -- they will get back a little more than that.

Mr. Edwin L. Weisl, Jr.: Precisely the point I made about the benefits or I tried to make, perhaps I have no doubt to do that inadequately.

These are the kind of benefits that are highly speculative in nature.

You advertise in a New York newspaper that one ought to come in New Mexico and establish a business, an immediate return is certainly speculative.

We all may feel that this would work but we cannot say that it would.

However, a direct benefit such as a road that opens up a new area of the state previously had no access to markets or agricultural products for example I think can be said to have enhanced directly in market value by virtue of the construction of that road and I think expert testimony would withstand cross-examination could be produced that would satisfy a Court that the benefit had accrued.

Justice Byron R. White: What are we talking about out there in Arizona, about 40,000 acres?

Mr. Edwin L. Weisl, Jr.: 9,100,000 acres.

Justice Byron R. White: No I mean the number of acres that have been taken for roads up to date?

Mr. Edwin L. Weisl, Jr.: I don't believe I have that figure.

The Highway Department perhaps can supply that Justice White.

Thank you.

Chief Justice Earl Warren: Mr.Lee.

Argument of Rex E. Lee

Mr. Rex E. Lee: Mr.Chief Justice, may it please the Court.

In our view, there are two basic issues in this case which we feel subsume all of the other issues and I feel that my argument could be most helpful if developed in the context of these two issues.

The first one is whether net value enhancement is relevant at all.

That is in developing a principle of compensation to the trust is it permissible for the state to the trust, is it permissible for the state to take into consideration the total impact upon the value of the trust of highway construction to all lands are most must focus narrowly only on the particular parcel that is taken.

On this issue, the United States and the respondent are in agreement.

The second issue is that assuming that net value enhancement is that the net value enhancement is a permissible consideration for the state taking the consideration.

How do you go about showing whether in fact the net benefit of the mere fact of highway construction across the trust lands has been to benefit or to derogate from the value of these lands is on this issue that the respondents and the United States are in disagreement.

Justice Abe Fortas: Well you are starting off with the agreement that the state highway department has applied?

Mr. Rex E. Lee: That is correct Mr.Justice Fortas.

We have never contended at any point in this litigation that the total value of the trust after the construction of highways can be lesser than it was before the construction of highways.

That is the net benefits attributable and directly attributable to the highway construction which is only to remaining surrounding trust lands must be at least increase in value to the value to the value of the land --

Justice Abe Fortas: Where does the standard come from?

I thought the standard of eminent domain was one of value.

The value doesn't mean just equating everything that you have a whole pot work the same that it was before.

The question is have paid value for what you have expected from that, isn't that right, isn't that conventional?

Mr. Rex E. Lee: Well, I would like to make two observations.

In the first place, the statute says nothing about eminent domain.

Justice Abe Fortas: I am aware of that.

Mr. Rex E. Lee: In the second place, what we are talking about, we may borrow on the principles to a certain extent and in eminent domain there are as I understand it two different rules.

One is that you can offset value to remaining lands belonging to the condemnee against the value of the interest taken.

The rule in Arizona happens to be different and I would like to clarify this, the rule in Arizona, A.R.S.Section 12-1122 is that you can't offset benefit to remaining trust lands only against the severance damages that is the amount that you damage those remaining trust lands and not against the value.

Justice Abe Fortas: Well, would that rule apply here, would the Arizona eminent domain apply here?

Mr. Rex E. Lee: We contend not simply because we contend that it is not eminent domain that is the applicable rule.

I'll develop this more completely in the course of my argument.

But we contend that the State of Arizona could have had it solely elected adopted this principle of eminent domain but what we are dealing here with is three essential provisions in our view, provisions that appear in Section 28 of the Enabling Act.

Mr.Frank has referred to two of these and I will advert to them in a moment briefly for that reason but first is the public auction provisions.

Mr.Frank has stated there is a blanket provision that permits of no exception which states that these lands must be disposed of by public auction which you have to give notice of that public auction for ten weeks once each week for a period of 10 weeks in two different newspapers.

The second provision that is relevant and this of course Mr.Justice Fortas is particularly going to bear down that all of the interest shall be appraised and that no sale or other disposal thereof shall be made for a consideration less than the value so ascertained and finally the provision that has not been yet mentioned this day but a provision which is of extreme importance is the catch all provision that comes at the end of Section 28 the one dealing with these trust land provisions and says this.

I am reading from the appendix, the petitioner's brief at the bottom of page 39, "Every sale, lease, conveyance or contract of or concerning any of the lands hereby granted or confirmed or the use thereof or the national products thereof not made in substantial conformity with the provisions of this Act shall be null and void."

And I'd like to consider first as a background to the value provision because I think it sheds light on it the applicability of these public auction provisions.

The great significance of this pubic auction provision is that they don't apply to use this for highway purposes.

Every governmental agency that had addressed itself to this problem has agreed on this point that you don't have to submit highways which are -- lands which are going to be used for highway purposes to these public auction provisions notice for over a period of 10 weeks and so forth.

From a practical standpoint, the reason is obvious, we're dealing here with strips of land that are 100 feet wide, a mile long, and bounded on each end by a proposed highway.

As a matter of fact, they know that it is going to be interested in bidding on those -- on the strips, on the long narrow strips of land except the highway department and --

Justice Byron R. White: Is that your only way of saying they are not --

Mr. Rex E. Lee: Not at all.

Not at all and I'll come to that in just a moment.

I have a practical reason and a legal reason Mr.Justice White and this is the practical reason.

And the legal reason is this that the obvious inappropriateness of these public auction provisions to uses for highway purposes points out the central fact that when Congress enacted this particular provision of the Enabling Act, it did not have in mind public uses in general and particularly uses for highway practices.

As Mr.Frank has pointed out this morning, the dominant consideration underlying Congress' enactment of this Enabling Act was to prevent the sale of these lands to private proprietors.

Justice Byron R. White: Well, Mr.Lee how about if the state takes 1000 acres of the land and because we're going to use this as a park and the wide built camp ground and things like that, it's not available for anything else.

But I'll guarantee if that were put up for auction and they got some bidders.

Mr. Rex E. Lee: Alright.

Alright.

Justice Byron R. White: Now, would you say that that -- is that subject to the sale or an auction.

Mr. Rex E. Lee: Here is my answer, here is my answer, -- let me answer it in two steps.

I first of all say its obvious inappropriateness to the highway context is saved by the interaction of two facts.

Number one, the fact of Congress obviously did not consider this particular problem.

And number two, the fact that Congress did not deal with this specific face of the problem it did deal with it as a generic type by this substantial conformity clause.

Therefore --

Justice Byron R. White: But why is this even a sale or disposition.

Why don't you talk just stop there and say this is -- the Act has no application to non-dispositional use?

Mr. Rex E. Lee: Because

Justice Byron R. White: No sale, no lease, no nothing?

Mr. Rex E. Lee: Because in all fairness, Mr.Justice White, I think that the overall purpose of this value provision is this that this is the basic concept underlying a value provision.

The state has given a basic package of lands.

Two things, any proceeds that come from the sale of those lands has to be used for school purposes.

There is no other permissible ---

Justice Byron R. White: You don't need to rely.

You wouldn't need to rely on the sale provision to protect the value of the trust.

You just rely on general trust principle.

No trustee can use the land do depreciate its value or use it for a purpose not contemplated by the donor.

And I would suppose that if the state took some of this land and permitted to a use depreciated the whole value of the trust the state would be in real trouble as a trustee?

You wouldn't have to rely on the state on these purposes.

Mr. Rex E. Lee: Conceivably so but this is not the only restriction.

There is in our view an additional restriction and that is the one that is imposed by this value provision.

That the -- the state was given a basic package of lands until those lands were converted into cash.

Once they were converted into cash the cash could only be used for certain purposes.

Until they were converted into cash, the state had an additional obligation on it and that is that it was charged to an obligation of seeing to it that the total value, the total value of this package was not diminished.

Now --

Justice Byron R. White: You can't find that in the Act.

That's just general trust, was it?

Mr. Rex E. Lee: Well, I think it's also implicit in this paragraph which says that these shall not be disposed of except for value though the language has not expressly written in that regard.

This -- Congress set forth certain general restrictions and certain general principles, manifestly Congress could not in 1910 foresee all of the problems that are going to occur.

A case in point did not foresee that problem.

Now I will get into that in just a moment.

But Congress did provide, Congress did recognize that it couldn't foresee all the problems and therefore it provided that substantial conformity was to be the applicable rule within the State of Arizona.

Therefore, the obligation which is imposed upon the state is and I think it is at this point the reasoning of the government's brief is particularly helpful.

The government points out in its brief that there is no precise blueprint detailing the exact nature of the responsibilities of the state that under these circumstances, the obligation of the state is determined by the general principle of the general purposes of the Act and that so long as the overall value of the trust is maintained that the state is entitled to use these lands for public purposes.

So long as it's in substantial conformity for the purpose of the Act.

Now, is it we submit that it is for various reasons that have discussed in our brief I'd like to mention just very briefly two of them.

One is that this is not a noble decision and the only one of its kind in the country.

Mr.Frank recognized the opinion of the Wyoming Supreme Court.

Though not dealing with enabling acts there are other states for example New Jersey which in the Constitution has certain restrictions placed on certain kinds of lands.

We have cited about five or six cases in our briefs dealing with those type of constitutional provisions which dignity wise are of a simple -- similar type of dignity of this Enabling Act and various different states have held that in these lands may be used for highway construction purposes if the offsetting value increment to remaining trust land is at least equal to the value of the lands taken for these purposes but the point on which I would like to bear down particularly is the point that Arizona is entitled to interpret value as meaning value to each of the trust lands and not just value to the lands taken for the reason that is the position has been taken by the United States Attorney General over a period of 50 years.

This interpretation is significant not only because of its intrinsic persuasiveness but also by virtue of the bare fact that it is the position that has been taken by the Attorney General.

The enforcement response -- well, the act does leave it, it is true to either the states or any individual the right to enforce the provision of this act but the primary responsibility, the first line of defense is the United States Attorney General.

There's of course a familiar doctrine that interpretation placed upon the federal statute by the agency charged with the enforcement of that statute are entitled to particular weight as Mr.Chief Justice Warren pointed out for the Court in Udall versus Tallman, it need not necessarily be the only interpretation which the act might permit nor need it be the interpretation which we as an original manner might have adopted had the case originally had arisen as a judicial case or in the context of a judicial proceeding.

And the particularly significant thing about the interpretation of the justice department in this case is that it extends over a period of more than 50 years.

As the opinion of the lower court pointed out the practice that is presently under attack is of some 50 years standing in this State of Arizona.

During all of that 50-year period, United States Attorney General has never taken any action to have this practice declared invalid.

This acquiescence we submit has not been through inadvertence.

In those instances in which practices have occurred which have truly derogated from the value of the trust the United States Attorney General had been swept for act.

For example, in this Tall Timber cases which have been so prominently referred to involved were 12 suits which were brought in the territorial court for the New Mexico by the attorney general's office.

Similarly in 1915 when the State of New Mexico enacted an act, a statute providing that 3% of the proceeds from the sale of all these lands should be used to advertise the advantages and resources of the State of New Mexico generally, the attorney general's office was successful in having the statute declared invalid as repugnant to the enabling act and this was the Irving litigation which eventually terminated in this Court.

The action of the attorney general in the Irving case was swept and decisive.

The New Mexico Act was passed on March 8, 1915 and the federal district court action was instituted by the attorney general less than five months later on August 7, 1915 yet during all the time that this Ervien litigation was progressing, the very practice which is under attack here was in effect under the State of Arizona and the united states attorney general's office made no look to take any corrective action.

Justice Abe Fortas: Was it in effect in New Mexico?

Mr. Rex E. Lee: No sir, it was not.

But we have there in two states side by side that are identical enabling act provisions practiced by one was attacked, a practice by one was not.

This of course brings us to the question of whether there are determinative differences between the two practices and we submit that there are for two reason.

The first is that that which the United States suggested indicated earlier that the basic concept of these value provisions of the trust is that a certain package of trust land has conveyed to the state with a thought in mind that one day it will be converted into cash and these cash will be used for the purpose of schools, hospitals, reformatories and so forth.

Once the funds, once these lands are converted into cash, they remain invaluable.

You can't use them for any other purpose and that's the first difference.

If the State of New Mexico directly used the funds resulting from the sale of the lands themselves, that is not the problem in this case.

The problem in this case is rather whether or how the lands which one day will be disposed of and converted into cash are to be maintained or to have their integral value maintained so that at that time that they are disposed of the value will not be lesser because the use that has been made of the interim period.

The second difference is this, Mr.Frank had referred to the fact of the Eighth Circuit Court of Appeals was cited with approval by Mr.Justice McKinney's majority opinion.

If you read the opinion of the Eighth Circuit Court of Appeals you see, that the real problem that the Court there was concerned with was the fact that these trust lands comprised only 126 of the total area of the state and yet there has been 126 of the lands were being made to bear the brunt of an advertising program which presumably would benefit the entire state, the opinion --

Justice Hugo L. Black: May I say to you --

Mr. Rex E. Lee: Yes sir.

Justice Hugo L. Black: That's one of the simpler thing about that (Inaudible) you say certain part of the lands would bear the entire brunt which cause it, should all the people from the sale or all the people there.

What you have here is that a certain part of this government land which has been used for school purpose certain part of it that at the time (Inaudible) of the road building is and through its properties?

Mr. Rex E. Lee: Well, if this in fact were the case Mr.Justice Black it would bother me too.

What we submit is that of course these lands do not bear the entire --

Justice Hugo L. Black: I understand there have been 9 -- how many acres already taken with that (Inaudible)?

Mr. Rex E. Lee: Mr.Justice Black I have no idea how many acres have already been taken.

Justice Hugo L. Black: But wasn't that to be borne broad building as the job to all the people of the state.

Mr. Rex E. Lee: That is correct.

Let me make two statements with the regard to that.

In the first place of course, these parcels were mostly located in the section side parcels, the Enabling Act says Section 2, 16, 32 and 36 so that they would principally be in Section one mile square parcels.

And the road of course would come through other land come up through these school lands and would go across the lands the interstate would say some 102, 100 feet wide.

Justice Hugo L. Black: But it will benefit the people all over the state and the people -- the nation (Inaudible) highway?

Mr. Rex E. Lee: Yes.

But I think what we have to assume for the purpose of this first issue is that also benefits the surrounding trust lands.

Now whether it does in fact or whether this has been adequately proven, I will get to it in just a moment.

But I think that we also have to assume this --

Justice William J. Brennan: Are these -- the highways conceded here have a limited access highway?

Mr. Rex E. Lee: There are all kinds Mr.Justice Brennan.

Justice William J. Brennan: Well, I suppose some of them go some 50 miles before it gets to an exit?

Mr. Rex E. Lee: That is very correct.

Justice William J. Brennan: Now, I wonder how much good does that --

Mr. Rex E. Lee: Oh a limited access highway where you might go 50 miles before you get to an exit.

Justice William J. Brennan: Maybe 50 is too many?

Mr. Rex E. Lee: Well, this simply points out the problem that the posture of this case is not proper for the consideration of this particular issue.

But that is we don't have in this record any evidence as to what type of highways and roads there are --

Justice William J. Brennan: You mean the court below was wrong.

Mr. Rex E. Lee: I am going to get to that in just a moment.

I do not mean by that the court below was wrong.

I mean that by the virtue that of the way the case came to the court it had no other alternative but to do as it did.

Let me just say at this point.

Justice Byron R. White: Well, then --

Mr. Rex E. Lee: I assure you Mr.Justice White I will get to that.

Chief Justice Earl Warren: Let me ask you this question Mr.Lee.

You have a sort of a checkerboard effect over here.

One section over here and another one down a few miles and another one over two.

Mr. Rex E. Lee: That is correct.

Chief Justice Earl Warren: Now, when you are -- when you are determining what the value of this property is and what it might gain or lose by reason of a highway.

Do you asses the value that will come to that land as being the value that will come to that particular parcel through which the highway goes or do you consider it the value that is affected in all the checkerboard affair over the state.

Mr. Rex E. Lee: I will be over that in more detail in a moment.

Let me say that but because of our concept that it's the total impact of the entire trust, we would say that would be both.

That is in a particular instance when you open up entirely new lands if you run a highway across a particular section, manifestly it's going to have some effect in that section.

We think that it is always a benefit.

Also if it's an area previously undeveloped as much of Arizona certainly is and Mr.Frank himself has pointed out that much of these lands are simply non-income producing at the present time presumably because they are inaccessible and you may have also benefits to other nearby lands in other sections.

But just briefly with regards to the lack of a record, the only support for the proposition that in fact there has been 40,000 acres or $9 million or whatever it is if the fact that there have self serving conclusionary and totally extra record assertions of fact to that effect made in the proceedings, made in the proceedings before this Court.Indeed in article appearing recently in the Arizona republic the suggestion is made that these facts -- that these figures are incorrect.

Manifestly this is not the tribunal in which that particular issue should be resolved.

We simply point out and I will go into this more fully in just a moment that because of the posture of the case this is not an appropriate case in which to raise -- the issues that are in this case we really feel that probably certiorari should be dismissed as having been improvidently granted, and it should await future cases which the record is proper.

Chief Justice Earl Warren: Well that partly answers the question I asked you --

Mr. Rex E. Lee: Excuse me Mr.Chief Justice.

Chief Justice Earl Warren: -- about the checkerboard here.

Let's say you have Section 1 and Section 16 and Section 62, 32 in the school lands, you go through just a portion of Section 1.

Now when you are determining the value of the highway to the school lands and when you are considering the damage to the school lands, do you consider it with relation to only Section 1 through which the highway cost or do you consider the added value or depreciated value as to Section 16, Section 32 and all the other school lands.

Mr. Rex E. Lee: We consider the added value to all the school lands.

We think that this is consistent with viewing the impact of highway construction on the total trust on the total land which is our basic problem.

Chief Justice Earl Warren: Would you do that if it was a private utility or a private individual?

Mr. Rex E. Lee: No, Your Honor, we would not.

Chief Justice Earl Warren: What is the distinction?

Mr. Rex E. Lee: The distinction is this.

That as I read the Enabling Act, there was quite a definite purpose to place severe restrictions rather severe restrictions against the use of these lands for private purposes except under these restrictive purposes for example the public auction and so forth.

Because of what I regard to be this basic purpose of the trust land provisions of the Enabling Act we would say that the strict letter of the law must be adhered to whenever these lands are used for private purposes.

But when it comes to a matter of use by the public itself for the purpose of construction of roads then this is an apt instance for application of what Congress provided would be the governing rule that only those transactions not in substantial conformity with the provisions of the act could be proscribed.

Justice Abe Fortas: But how do you do -- what do you do with the fact that the Enabling Act does contain two specific provisions about public use.

One is use by the United States for irrigation.

The other is a provision that is a provision that says that if the state of Arizona wants to exchange any lands in trust for any other lands, they've got to go to Congress and get approval.

Mr. Rex E. Lee: I'm glad you asked that Mr.Justice Fortas.

Justice Abe Fortas: I don't know why.

Mr. Rex E. Lee: Because I have an answer for it.

And the answer is this.

When Congress passed this Enabling Act, it foresaw certain problems.

It did not foresee all of the problems and it recognized that it didn't foresee all of the problems.

One of these problems was private use.

Another was use by reclamation project.

Because Congress recognized that it didn't foresee all of the problems, it provided a catch all of raising saving funds at the end that only those transactions not in substantial conformity.

Justice Abe Fortas: This is clearly noble (Inaudible) statutory construction, isn't it that is to say would you ordinarily say that to the extent that Congress did not specifically cover state use meant for the generality of the statute to the government.

Mr. Rex E. Lee: I would agree were it not for the fact that Congress did provide that those transactions are in substantial conformity.

I refer to another canon of statutory interpretation that the language has meaning particularly when you consider where are these particular paragraph comes.

Section 28 is the basic section that deals with these trust lands provisions and right at the end of Section 28 and presumably an all embracing provision that all transactions not in substantial conformity with the provisions of the act shall be null and void.

Chief Justice Earl Warren: On what would you rely to the show that Congress could not have anticipated the need for public roads in this great western country.

Mr. Rex E. Lee: Well, --

Chief Justice Earl Warren: In 1910 after the automobile that came along and was really developed --

Mr. Rex E. Lee: This of course is not my point Mr.Chief Justice.

They didn't anticipate the need for public roads.

What they didn't anticipate was the possible conflict.

Obviously, it was not anticipated.

And the possible conflict between these particular provisions dealing with public auction and the needs which might arise in 1966 say for example as to the need for an immediate taking and the re-inimical -- the fact that it would be clearly inimical to the state's highway construction program if you had to simply wait for a 10-week period in which you went through these public auction notice provisions before you can take the lands and use them for highway construction purposes.

Chief Justice Earl Warren: Why would they anticipate reclamation projects and not be able to recognize the possibility of roads?

Mr. Rex E. Lee: Presumably because the reclamation projects had someone who had a good lobby there and anticipated the problem.

My --- I really don't know -- I really don't know.

All I know is that we do have the language of the statute that it is obvious that there are some portions of the statute as to which a too literal application would result in an unintended consequence.

Couple that with the fact that Congress did provide a safety valve as a generic type against the possibility of a too literal application resulting in unintended consequences and I can describe no other reason for this substantial conformity provision.

Now let me address myself just very briefly to the question of assuming that the net value enhancement theory is an acceptable theory upon whom does the burden lie.

The United States suggests that it should lie with the highway department and as an abstract proposition we are not out of sympathy with this.

If all we have to go on with the bare pages of the Enabling Act itself on the day following its enactment but we would disagree in this case because of the fact that the Arizona Supreme Court has on three different occasions determined that in fact the constructions of highways in Arizona does result in a net value enhancement to trust lands and this gets us back to the question of Mr.Justice White asked me earlier and I think perhaps I can anticipate a question that follows it and that is was this not an arbitrary decision?

Let me say two things about that.

In the first place, it's difficult to fault the Arizona Supreme Court for handling this case the way it did because of the posture in which the case arose.

At the time that this case came before the Arizona Supreme Court on a writ of provision, there were already outstanding two prior decisions of that Court holding that in fact the construction of highways across these trust lands resulted in a net benefit not to lands as a whole but to the trust lands themselves.

Now --

Justice Hugo L. Black: What about the land intervening between that you told the chief about?

Mr. Rex E. Lee: Well that those lands that are being in between Justice Black I was just referring to other school lands.

Justice Hugo L. Black: But I am talking about private lands.

Why shouldn't they pay as much of it as the public lands.

Mr. Rex E. Lee: Well, in our view it's not a matter of who has to pay how much.

It's a matter of after you get through building --

Justice Hugo L. Black: Not whose benefits.

And if it benefited them as much why should the trust land have to pay it all not only that those to them but all through the intervening private landowners.

Mr. Rex E. Lee: Well, because of peculiar Arizona rule and it may exist in other instances.

Justice Hugo L. Black: But that couldn't keep it, that peculiar Arizona rule couldn't keep that from putting a cost on road construction on land that others are just somewhat responsible for --

Mr. Rex E. Lee: I agree with you but on the other hand if it has been determined by a competent process and I'd like to deal just briefly with what is a competent process.

If it has been determined by a competent process that in fact after you put a road across trust lands, take a given stretch of roads --

Justice Hugo L. Black: Trust lands and other lands.

Mr. Rex E. Lee: And other lands that trust lands considered just and by themselves are worth more by virtue of the bare fact that that road has been constructed in the process.

Justice Hugo L. Black: Well, what about the intervening lands, are they worth more?

Mr. Rex E. Lee: They may be.

They may be and this may also be a consideration the State of Arizona may wish to take into consideration there.

And I think that if they did it would be perfectly proper for example if the state were to adopt a principle of compensation to -- as to private lands.

Chief Justice Earl Warren: Does it now?

Mr. Rex E. Lee: Mr.Chief Justice, it does not.

Some states do but the State of Arizona in normal eminent domain procedure only allows benefits to be offset against what we call severance damages and not against the damages from the actual taking.

Justice Abe Fortas: Mr.Lee in the federal highway program, I suppose a lot of these lands are used in that?

Mr. Rex E. Lee: I presume it would be so, yes.

Justice Abe Fortas: The value of the land I think somebody said that the value of the land is counted as part of the state contribution.

Mr. Rex E. Lee: There's nothing in this on the record.

I am not familiar with the federal highway program Mr.Justice Fortas but that is my understanding yes.

Justice Abe Fortas: You know whether the State of Arizona puts a value on these trust lands for purposes of the federal highway program?

In other words, if it uses some trust lands as part of its contribution to the federal highway program I presume that it puts a value and it places some value on them.

You know whether it does or not.

Mr. Rex E. Lee: I'm informed by my co-counsel who spends time, full time in highway department matters.

This is not done.

Justice Abe Fortas: But it's not done.

Then this goes in as free?

Goes in for free?

Mr. Rex E. Lee: Well --

Justice Abe Fortas: Well, maybe you don't know.

Mr. Rex E. Lee: Yes.I really don't know it.

Chief Justice Earl Warren: Did the federal government do it?

Mr. Rex E. Lee: There is no evidence on this record as to what the procedure is and I am really not familiar with the procedure Mr.Chief Justice.

Justice Byron R. White: But if the state has to pay for it, we'll say, who is going to pick up the tab eventually if the state have to pay for it?

Mr. Rex E. Lee: Pay for what, Mr.Justice White?

Justice Byron R. White: These rights of way.

Mr. Rex E. Lee: Well, --

Justice Byron R. White: Let's assume that you're wrong and that they can't take these for nothing, they have to pay some money, who's going to pay eventually, the state or the federal government?

Mr. Rex E. Lee: In the case of an interstate highway then pursuant to the terms of the act, part would be paid by the federal government and part would be paid by the state.

Justice William J. Brennan: By 90%?

Mr. Rex E. Lee: In accord of whatever the percentage would be.

Justice William J. Brennan: That's 90% by the federal government?

Mr. Rex E. Lee: Well, there are cases where there would be more Mr.Justice Brennan.

Chief Justice Earl Warren: But so far as the state is concerned, who gets the whole benefit if the other side prevails?

Mr. Rex E. Lee: The other side prevails then the benefit goes to the trust.

Chief Justice Earl Warren: Suppose the public schools of Arizona.

Mr. Rex E. Lee: That is correct.

That is correct.

Chief Justice Earl Warren: So wouldn't that pay more of a benefit to the state than when you prevail?

Mr. Rex E. Lee: Yes, there is no question Mr.Chief Justice that it would be more of a benefit but we submit that is not the issue in this case.

There is no question that if a value -- if actual cash has to be paid from the highway department to the land department, and in addition to that they get the value increase resulting from the highway construction that the trust will be greater in risk but we submit that that is not the issue in this case.

What is the greatest benefit that can possibly be, that can possibly be obtained for this reason the trust -- the trust provisions deal in terms of value and the standard as we see it is that value must be maintained.

If it is maintained, then the state may deal with these -- may use these lands for highway construction purposes.

In the final analysis, it's true that enabling acts are federal statutes, but many of the provisions of these enabling acts deal particularly with problem areas which substantively are within the exclusive domain of the state itself.

For example, the establishment of schools, the establishment of hospitals, and the establishment of reformatories lies within the exclusive responsibility of the state itself.

Similarly, the setting of the standards according to which these institutions are to be maintained is an exclusive state responsibility.

Once the state is determined and you can set the standards, the state can set the standard for school just as high or low, or just it wants to.

If it sets up high, that means that more money is going to be required.

Once the standard has been set to whatever extent the school trust funds are insufficient to pay the bill, the difference is going to have to be made up by the state itself and regardless of which way this determination has made as to whether highway department funds have to be paid to the state department, state land department no matter on what circumstances, the eventual bite is going to be felt by the state itself through its taxing process.

All we're saying is this that in working out its overall governmental problems of providing for schools, hospitals, reformatories and highways, all of which are state responsibilities.

The state should be entitled to incorporate into its total governmental scheme that interpretation of the enabling act which best comports with its total scheme and which it fits in best with the other constituent parts of that scheme.

It follows then that if the State of New Mexico wants to interpret its Enabling Act as requiring that only -- that value means only value to the particular lands that are taken, then this is perfectly within the right of the State of New Mexico to do so but this does not mean that the State of Arizona must adopt a similarly restrictive view.

We submit simply as to the issue of the burden of proof that the decision of the Supreme Court of the State of Arizona was made by persons who are familiar with Arizona.

They are familiar with its problems, with its history and with its geography.

We don't know what considerations they took into account.

We do know that they are -- in the studies made in the State of Texas and elsewhere which indicate rather forcefully, rather dramatically that highway construction across even developed lands, the golf freeway in Houston and the Dallas expressway in the suburbs of Dallas.It illustrate rather dramatically that the effect of construction of highways across lands is to fantastically increase the value of those lands.

In the case of the Dallas study, the increase of value of the surrounding lands was even in excess of the cost of construction of the highway itself and we don't whether the members of the Arizona Supreme Court took these particular factors into consideration or not.

We do know that tourism is the fourth largest industry in the State of Arizona.

We know that historians have assigned an important role to highways in the development of the state interest presumably also therefore of its lands.

At the very least, these decisions of the Arizona Supreme Court are entitled to some weight and are entitled not to be rejected out of hand as though they never existed at all.

At the very least, we submit they are entitled to sufficient weight to shift the burden to those who would contend that the conclusions reached there are not correct.

Justice Hugo L. Black: May I ask you, considering these two or three plan you had on this line, which on in your judgment can complete the function, will most surely guarantee but not a dime of the school plan will be spent for anything except school funds.

Mr. Rex E. Lee: Mr.Justice Black, if we are correct in our theory I would think that they would be equal in achieving this purpose because of the fact that a dollar increment to a surrounding land is just as effective as a dollar actually paid for lands that are taken for that purpose.

Chief Justice Earl Warren: But you don't take them all into consideration.

That way you take this parcel over here and add the benefit it gets to all these other parcels of the fund which you don't do that with other people.

Mr. Rex E. Lee: Well, Mr.Chief Justice I would like to say that we consider the total impact on the value of all of the lands taken as a whole, all of the trust lands.

We offset only the value of the lands taken from the trust against the value increment to trust lands themselves in the trust.

The private lands, we leave out of them entirely because the private lands simply don't enter into it.

It's the trust lands that we take into consideration.

Justice Hugo L. Black: Why isn't there a question of bookkeeping?

What you have here is a system, one system which would guarantee not a dime went out of those schools, or not a particle of that land went out without going to the school funds and it's a question of bookkeeping.

Mr. Rex E. Lee: That's right.

It it's a question of --

Justice Hugo L. Black: And the question of bookkeeping I should say the burden, the likelihood will always exist that the state funds can -- that funds can be best protected following the statutory method lend and pay money.

Mr. Rex E. Lee: The extent that it is a matter of bookkeeping Mr.Justice Black in answer to your question then I would contend that since the ultimate burden is going to be born by the State of Arizona, the state should be allowed to incorporate into its total overall scheme that interpretation of the enabling act which best fits within its overall scheme so long as insubstantial conformity with the provisions of the act which we submit this is.

Chief Justice Earl Warren: Mr.Frank, you have a few moments.

Rebuttal of John P. Frank

Mr. John P. Frank: Thank you Your Honor.

I shall be brief.

I would like to relate to some of the questions which were asked I think Justice Fortas, you, Mr.Chief Justice asked expressly as to what our law is in terms of what would happen if these were private lands, or if they were railroad lands.

The answer has been forthrightly and candidly put by Mr.Lee.

If that were happening, the doctrine of enhancement would not apply so that under the position taken by the highway department under our law these lands are put, the school lands are put in a position inferior to the railroad lands or to any other lands because under our expressed statutes and categorical decisions there would be no such enhancement as they are claiming here.

We have covered that with citations.

Justice William J. Brennan: Well would those private lands would have to -- would the -- if you went through one of these sections which are privately owned I take it you have to pay for it.

Mr. John P. Frank: You'd have to pay for it Your Honor and you wouldn't get the very enhancement which they are claiming here by expressed provision, we have set forth the statute in the interpretive cases in our reply brief at page 4.

I would like to make clear that we have not Mr.Chief Justice made that the primary focus of our argument although I think it is conclusive.

We have not first in deference to the other eight states which are with us because some of those other states may not have as flat as statute as this.

And secondly, because we wish to nail our flag to and stand on the Enabling act, the question which I put when I sat down before was if Congress wanted to require that you get the appraised value for every acre, how could Congress do it anymore explicitly than it has been done?

No one has answered that question because you can't do it anymore explicitly than that's been done and we prefer to rest on that.

Justice Byron R. White: Mr.Frank, could I ask you just about one situation?

Suppose the state lets one of these sections that on the edge of the city and they think they ought to just subdivide these sections and sell it off and so it does that while it (Inaudible) county and it dedicates to roads and streets all over the section, so that roads, (Inaudible) utility, they spend a good deal of trust money -- trust money on this section.

And then the Attorney General of the United States comes in and says you can't do this because of the -- or the school people say you can't do this because there's going to be several of these acres here that are going to be street and you are going to pay for it.

You got to pay for it.

Would you, I suppose you take the same position?

Mr. John P. Frank: You bet and when it applied to this whole section.

In other words, if I understand you sir, the Chief Justice has given the problem of checker boarded sections.

Justice Byron R. White: Well, this is just one section deal.

Mr. John P. Frank: That's right.

This one section has a number.

That precise section is either in the school trust or it isn't.

Justice Byron R. White: But what we're dealing is trying to get the section in condition itself.

They are putting in the utilities and the roads and then they begin to sell it off.

Mr. John P. Frank: The answer is that we have carried this traditionally in such fashion that if we improve these lands, we do them out of the general funds.

We would not deplete the school trust for that purpose sir.

Now, do I miss you --

Justice Byron R. White: I know but I said suppose they extend the trust money in improving trust lands so they will bring in higher price.

Mr. John P. Frank: Yes.

Justice Byron R. White: Like developers do subdivide it rather than selling it.Subdivide it, got a lot of money on it, and then they sell it.

And they make a pretty good profit.

How about -- how about the trust doing it, developing its land, selling it and making enhancing profit to the school?

Mr. John P. Frank: Yes and our position on the score Your Honor would be that the trust lands if they are going to be sold after improvement but nonetheless require payment for the totality of them and there isn't any system under this Act whereby you can ship away some acres.

Justice Byron R. White: So you would say -- you would say that the moment they purported to designate some of these lands permanently for use of streets, they -- the state hold some money in the process?

Mr. John P. Frank: Not Your Honor when they designate but when they dispose of.

The statute says use or dispose of.

Now, if they are neither using nor disposing nor selling, that would be another thing but if there is a use and may I now intervene with you sir.

Justice Byron R. White: Well, that doesn't much any difference then but the fact is you would say they have to pay for those roads.

Mr. John P. Frank: That must be paid for and it is our position you gave Your Honor the example of the golf course when you say that one part of a golf course, one section to develop and improve the area they have to pay for it.

The answer is that that was exactly what happened in the town of Benson when a section was taken.

And precisely that part and people went to the Congress of the United States and they said please give us an amendment and the Senate Committee duly recommended it on the ground that that was necessary and it is necessary under this statute.

If it is to be changed it must be by amendment.

One last word and I shall --

Justice Hugo L. Black: How could Congress change it?

Mr. John P. Frank: Pardon?

Justice Hugo L. Black: How could Congress change it?

Mr. John P. Frank: It should be done, Your Honor.

Congress may amend the Enabling Act which it then accepted as an amendment in Arizona as an amendment to the Constitution would amount to a change of the trust.

Justice Hugo L. Black: In other words, Congress can withdraw its gift?

Mr. John P. Frank: The Congress -- no.

Congress cannot withdraw it unless it is mutual.

But if there were mutual agreement and this has been done Your Honor, there have been amendments.

Justice Hugo L. Black: But you do put on that addition that it has to be mutual.

Mr. John P. Frank: You bet.

We indeed, we do.

I will advert in closing only to one last matter and that is the argument which has been made by Mr.Lee that non-enforcement by the attorney general in past years is a reason why the Act evaporates now and can't be enforced anymore.

We submit, Your Honor that the Act is not so fragile that it is erased by the fact that the attorney general may not have brought an action earlier from this.

It is true that there are changing circumstances and the problem does become larger and more frightening as we see the roads taking the land and the utility standing behind it.

As it happens, the Arizona Education Association representing the teachers who are concerned not for now because this doesn't effect now but for the future of the state have seen fit to press this matter and to bring it here to protect those school lands and we respectfully submit that this has been a public service on their part and that they are not part in pressing that argument through us here and before this Court to protect these trust lands whatever the course of ignoring these values may have been on the past.

Thank you.

Featured:

Hawaii v. Gordon - Oral Argument

Tue, 25 Sep 2012 22:33:08 +0000

Case:

Hawaii v. Gordon

Media File:

12orig_19630415-argument

Related Transcript:

12orig_19630415-argument

Transcript:

Argument of Bert T. Kobayashi

Chief Justice Earl Warren: Hawaii, Plaintiff versus Kermit Gordon.

Attorney General Kobayashi.

Mr. Bert T. Kobayashi: Mr. Chief Justice, may I please the Court.

This is an original action brought in this Court by the State of Hawaii against David Bell former Director of Bureau of Budget for whom Kermit Gordon the new Director has been substituted.

The Budget Director is charged with the responsibility of administering certain provisions of the Hawaii Statehood Act.

These are the provisions setting up a program for the review of federal need for retained lands and properties in the State of Hawaii and for the conveyance of surplus, unneeded land according to the state.

This Court has granted all motion, full need to file complaint in this case.

This case is now before the Court on cross- motion with judgment on the pleadings filed by both parties.

We believe that the case is right for a decision on those cross motions.

The immediate practical issue here involves four housing projects, which constitutes a major part of the Hawaii public housing.

The military department who controls the land in question have certified that these lands are surplus of the military need.

If our interpretation of the Hawaii Statehood Act is correct then these lands will be conveyed to the state without being placed under auction block to the highest bidder.

To explain the basis of our claim, it is necessary to go back briefly into Hawaiian history.

Hawaii was once a separate independent nation, when it was annexed by the United States in 1898, the United States took without compensation, without payment of compensation, title to all the publicly owned land in the Republic of Hawaii.

These lands were quite expensive, approximately over 44% of the entire land area of the territory.

The legal title to these extensive lands very largely remained in the United States until we were granted statehood in 1959.

We have what the Statehood Act called the public land, sometimes called ceded land.

They are other two types of land involved in this case.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bert T. Kobayashi: Justice Goldberg initially 1,773,000 acres of land out of a total land area of 4 million acres of land in Hawaii were ceded to the United States.

Subsequent to 1898 and up to 1959 most of the ceded land has been returned to the state.

And ceded lands are lands that have been originally owned by the state.

Presently approximately 400,000 acres of land are being held as ceded land by the United States, and also presently approximately 30,000 acres of land, which is the called the Federal after-acquired land are being held by the United States.

Justice Arthur J. Goldberg: Is there any quarrel General over the 400,000 acres of ceded land?

Mr. Bert T. Kobayashi: In issue here, no.

Justice Arthur J. Goldberg: No.

Mr. Bert T. Kobayashi: It's presently however being processed through the special provision in the Hawaii Statehood Act.

Whatever ceded land United States decides that it does not need, then State of Hawaii could receive, but if the Federal government decides it needs it, we still cannot get it sir.

Justice Potter Stewart: Yes.

There is no dispute as to the meaning of the Statehood Act with respect to that land.

Mr. Bert T. Kobayashi: No sir, no sir Justice Stewart.

Justice William J. Brennan: Well, then Mr. Attorney General how many acres are concerned with in this case, the Hawaii Claim?

Mr. Bert T. Kobayashi: Justice Brennan the total acreage involved in this particular type of land numbers about 30,000.

Out of say 30,000 I doubt very much if initially about 1,000 would be involved, but the total is 30,000.

Justice William J. Brennan: 1,000 that acreage of --

Mr. Bert T. Kobayashi: 30,000 acres.

Justice William J. Brennan: On which there is presently construction?

Mr. Bert T. Kobayashi: Presently under the public housing we have approximately 275 acres involved.

Unknown Speaker: [Inaudible]

Mr. Bert T. Kobayashi: Most of the installations are all on ceded land.

On the Island of Oahu the main island wherein out of 700,000 people in the State of Hawaii, 600,000 approximately live on the island.

28 major military installations are located on the Island of Oahu.

Unknown Speaker: [Inaudible]

Mr. Bert T. Kobayashi: Yes sir.

Justice Arthur J. Goldberg: And is it your position that those also should be considered surveyed by government to determine if it needs them, those installations.

Mr. Bert T. Kobayashi: They are being surveyed now because they are on ceded land.

Justice Arthur J. Goldberg: I see, oh yes.

Mr. Bert T. Kobayashi: Very few on purchased lands.

Justice Arthur J. Goldberg: Yes.

Mr. Bert T. Kobayashi: May I proceed?

Justice Arthur J. Goldberg: Yes, proceed please.

Mr. Bert T. Kobayashi: There are two other types of lands involved in this case, the territorial lands and the federal after-acquired land.

The territorial lands are lands, which are very partly by transfer by the United States received that is portion of ceded land and partly by purchase of condemnation under the territory's power as territorial government.

The federal after-acquired lands which is the type of lands an issue in this case, were the lands that the Federal Government required for specific federal purposes throughout the year after annexation.

These were acquired from private parties by condemnation purchase, gift and the like.

But I want to emphasize if the Court please that the great bulk of the lands which the United States acquired and kept until statehood were the ceded lands.

Now these ceded lands were intended to have been held in trust with the people of Hawaii.

Actually however as time went on more and more of the lands were withdrawn for specific federal use and I want to emphasize if the Court please, again that the trust was never recompensed for this very extensive taking of lands by the Federal Government.

Even the land switched to territorial government, acquired itself were always subject to withdrawal for federal purposes, in which case the United States got the use of the land and paid no compensation.

It is about the status of the federal after-acquired lands when they become surplus that this case centers.

The housing projects here aforementioned are located on the federal after-acquired lands.

When state attempts -- yes sir.

Justice Arthur J. Goldberg: Land, after-acquired land by Hawaii, by what?

No issues?

Mr. Bert T. Kobayashi: No sir.

Justice Arthur J. Goldberg: Under the Statehood Act of Hawaii [Inaudible]

Mr. Bert T. Kobayashi: Hawaii does get the territorial lands --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bert T. Kobayashi: Yes but still, even such lands are subject to withdrawal by the United States for a period of five years at the state has --

Unknown Speaker: [Inaudible]

Mr. Bert T. Kobayashi: Yes sir.

May I proceed?

Once state obtained in 1959, the state did not get title to all and nearly all of the lands which the United States had obtained free from the State of Hawaii in 1898.

This happened primarily because the best of ceded lands in Hawaii are originally intended to be held in trust for Hawaii were largely withdrawn from the trust without compensation and were kept by the United States.

And on top of that, as I said a moment ago under the Hawaii Statehood Act, the Federal Government was to permitted to go on making land withdrawals for a five year period after statehood.

In other words, Hawaii was compelled to give up urgently needed lands because they were needed by the Federal Government.

Even though they were rightfully theirs under any equitable principles.

Now Hawaii has a shortage of land.

Much of the land is mountainous and is capable of very limited use.

Population density is high as I said a moment ago, and on one island, we have practically all the people 600,000.

Here there are extensive holdings by the Federal Government, somehow most of the good ceded lands are located on the Island of Oahu and somehow the Federal Government saw fit to take away most of the ceded land located on the Island of Oahu.

And most of those lands are badly needed for public housing and for other housing purposes.

We feel that it was to rectify this inequity that Congress enacted certain provision under Statehood Act.

For those provisions, the Statehood Act has offered to us for ratification contain a procedure under which the state would get surface Federal land under that procedure all Federal surface lands in Hawaii whether ceded lands or after acquired land were to be conveyed to the states.

This procedure was not restricted to ceded land and territorial land as the Solicitor General states.

It was extended to all Federal lands in Hawaii otherwise there would be no compensation for the state for the best of the ceded and territorial land, which had been taken by the Federal Government without compensation and were permanently lost to Hawaii.

The Federal Attorney General in his opinion when he passed on this matter recognized the state equitable position, an equitable claim, here for all surplus Federal land in Hawaii although disagreeing with the State, it saw that the State had an equitable claim in an allotment of unneeded surplus after-acquired land, a claim that Hawaii as he puts it “ought to receive the surplus after-acquired property in compensation for the many sacrifices that Hawaii made for the United States.”

And as a basis for this, he particularly mentioned extensive ceded land that the United States was not parting with.

The interpretation to state as containment for does not put it in a favorite position as compared to the other states and obvious comparison is of course the State of Alaska admitted to the union only a year before we were admitted.

There were no ceded or trust land in State of Alaska.

All the Federal land there, were purchased by, purchase of valuable consideration.

Nonetheless, Alaska was given all of its territorial lands and a grant of over 100 million acres of Federal land, which is 25 times the total acreage that we have in the State of Hawaii.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bert T. Kobayashi: That's my understanding sir.

It's federally owned land sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bert T. Kobayashi: In a sense yes Justice Goldberg.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bert T. Kobayashi: Because in Alaska, we take a position of 100 million acres of Federal land and I am sure some of them were purchased for valid consideration which can be called after a quite profit were eternal by the grants of the state.

Now we are asking only a portion of or total of 30,000 acres after-acquired land.

So it is similar.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bert T. Kobayashi: Fact of the result is the same Justice Goldberg.

Justice Potter Stewart: The history is a bit different, Alaska was purchased by --

Mr. Bert T. Kobayashi: Alaska sir.

Justice Potter Stewart: And Hawaii was an independent --

Mr. Bert T. Kobayashi: [Inaudible]

Justice Potter Stewart: An extra agreement by the request of the party here at least by agreement --

Mr. Bert T. Kobayashi: I would say by mutual agreement.

Justice Potter Stewart: (a) mutual agreement.

Mr. Bert T. Kobayashi: It's great but different because as I stated initially 44% of the lands in Hawaii were owned by the Republic of Hawaii.

It was never purchased for any valuable consideration by the United States.

That 44% of land were all taken over by the Federal Government without paying any compensation for it.

Justice Potter Stewart: Now is it sure – are you implying that there was something overreached and that this was wrong right from the beginning, this was a taking of property without, in a wrongful way.

Mr. Bert T. Kobayashi: I do not wish to imply that sir, because by mutual agreement we became a territory of the United Stated and by mutual agreement the public lands were turned over to the United Stated, but I wish to state this sir, that all this acreage were used by the United States without paying any compensation and the United States has received tremendous value for said lands and a great portion of that has been retained permanently by the United Sates again without extra compensation for the retention.

Justice Potter Stewart: And will be retained as you concede under the Statehood Act that that part of it which is found to be necessary for the United States.

Mr. Bert T. Kobayashi: That is correct Justice Stewart.

May I proceed?

The question before the Court today is of great importance to a rapidly growing state with as limited, with as little land as Hawaii.

My associate Dennis Lyons will demonstrate, I firmly believe that a little construction of the act gives all surplus Federal land in Hawaii to Hawaii instead of having them put on the auction block.

I have emphasized the equities of the situation.

The needs which Hawaii has for these lands, the fact that Hawaii was not equitably treated as other state with respect of land holding, because as I read in the Defendant's brief, his press for contention seems to be that the literal words of the act should be ignored because Hawaii does not have an equitable claim for said land.

The Court pleads on the contrary, Hawaii has a strongest of the equitable claim, and we believe Congress recognize this, thanks.

Chief Justice Earl Warren: Mr. Lyons.

Argument of Dennis G. Lyons

Mr. Dennis G. Lyons: Mr. Chief Justice may it please the Court.

The Hawaii Statehood Act contains provisions for the review and conveyance to the State of Hawaii of surplus Federal land in Hawaii.

The legal question at bar today is how broad are those provisions?

The State contends that those provisions cover any surplus Federal land, that for five years after the passage of Statehood Act, the Federal government must review all its Federal landholdings in Hawaii and make conveyances of those which are found to be surplus to the State.

Here we are talking primarily about military lands because the military departments are the largest Federal landholders in the State.

Now the Defendant on the other hand claims that these provisions for the review and conveyance of surplus land simply cover the so called ceded lands that the Attorney General spoke of, and the so called territorial lands.

How did Congress go about making this provision for the review and conveyance of Federal surplus property in Hawaii?

It did this through the provisions of sections 5(e) and 5(c) of the Statehood Act, which are found on page 4 of the Appendix to our complaint.

The provision which sets up the procedure is Section 5(e).

Section 5(e) provides and I quote, “That within five years from the date, Hawaii is admitted into the union, each Federal agency having control of any land or property that is retained by the United States pursuant to sub section (c) and D of this Section shall report to the President, the facts regarding its continued need for such land or property”.

The Section then goes on to provide that if it's determined that there is no need by the United States for the land or the property it shall be conveyed to the State of Hawaii.

The sub sections coverage in the first place is broad, it refers to any land or property that is retained pursuant to sub-section (c) or D.

We are not for the moment concerned with sub-section D, but now to turn to sub-section (c), sub-section (c) in turn covers and again I quote, “Any lands and other properties back on the date Hawaii is admitted into the union are set aside pursuant to law for the use of the United States in certain specified matters provided in the Section.”

As to these lands sub-section (c) says, they shall remain the property of the United States, sub-section (e) then builds on sub-section (c) and says, that as to those lands these any lands which are retained the procedures of review, screening, and conveyance if they are surplus shall operate.

Sub-section (c) in turn as we see uses broad language, it uses the words any lands and other properties.

Sub-section G gives some definitions for the terms that are provided in the Act and referring to lands and other properties, it defines that simply by terms of extension, imposes no limitation whatsoever on the content of any lands and other properties.

It does not contain any provision such as the defendant claims is implicit in the Act limiting any lands and other properties to the territorial lands and the ceded lands.

There is no such provision in the Act.

We contend that this broad language in Subsection G and the failure of Congress at that point to impose any limitation along with the fact that there is no limitation expressed in Sub-section (c) or in Sub-section (e), indicates that Congress intended this to be a broad provision for the review and conveyance of Federal surplus land in the State of Hawaii.

This is to carry out the purpose of Congress to provide some sort of recompense to the State of Hawaii for the withdrawal of the best of the ceded lands over the years, lands which from the very beginning, from the annexation resolution itself and shortly there afterwards, were always conceived, always held in a special trust for the State of Hawaii.

It was as it recommends for the withdrawal, the extensive withdrawals from that category of land that the Congress made the provision question.

There is nothing in the language of the act that says that the lands which are subject to the procedures setup by the act or the termination of need and possible conveyance to the State of Hawaii under Subsection (e), must be lands which otherwise would be conveyable to the State under Subsections 5(a) or 5(b).

The defendant, however, says that there is some such limitation implicit on some basis in the act.

There is not a word in the statute which supports it.

We contend that this is not an appropriate case to make such an implication, even if there were some basis for making an extreme implication of the sort that the defendant suggests, if this were an ordinary statute.

The fact must be based that this is not an ordinary statute.

This was not an act which was complete and perfectly enacted simply when Congress voted it and the President signed it.

There was another legislative body, if you please that had to act on this provision before it could become a law and go into full force and effect.

In Subsection 7(b) of the State of the Act, which is reproduced on page 7 of the appendix, a provision is contained which makes an explicit submission of a proposition to the Electorate of Hawaii.

3 reproduced there asks the Electorate of the State of Hawaii if they consent to the Land Grant provisions contained in the Act.

Justice Arthur J. Goldberg: [Inaudible]

We do not think this question was flushed out at that time, your Honor, the public press, I think the issue is probably somewhat broader than this.

But this was legally a question submitted for an explicit vote by the Electorate of the State of Hawaii.

Justice Arthur J. Goldberg: Has any other state on admission have a provision such as this and --

Mr. Dennis G. Lyons: There is nothing quite like this sir, Your Honor.

We contend here that Congress had to tailor something preciously fit into the specific needs and the specific problem in the State of Hawaii.

Actually there is no other state that has the land history that Hawaii had.

The only other really authenticated case of the annexation of an independent country by this country was when this country, I wouldn't say took over, when this country and the (Inaudible) Texas merged and there is a provision there which provided for almost immediate statehood.

In that case, that bulk of the state lands were not taken from Texas.

And there was not this period of 60 years during which more and more land was drawn for Federal use, which required a compensating provision to be made.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Dennis G. Lyons: That's correct.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Dennis G. Lyons: Essentially, the issue, that's essentially the issue your Honor, the question is whether Congress put into the Statehood Act by implication of provision of which descended to that level, which descended to that level is what it means, we contend Your Honor.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Dennis G. Lyons: Yes, that is our position your Honor.

We cite numerous cases in our reply brief primarily to the effect that where an enactment is submitted for a popular vote and popular ratification, that there is no room for the implication of any of restriction not implicit in the language of the Act itself, and we think this proposition is one which should apply to this statute here.

However, what legislative history there is, it's definitely on the side of the State of Hawaii, most cogent items of the legislative history.

The essential choice that was made in drafting this act, after the three -- after the admission of Alaska in 1958, there were three alternative provisions which for the first time put into the Statehood Bills, a provision for the conveyance of surplus Federal property to the State.

There are three of these forms which were pending before the House of Interior and Insular Affairs committee.

One simply covered the ceded lands, provided for conveyance and surplus ceded lands.

The next covered both the surplus ceded and surplus territorial lands.

And the third and broadest form is the form that wound up in the act, the form that covers any lands.

The House Committee which fixed the final meeting of the Act chose the broadest alternative and it was this form that was enacted into the statute and at the very next session of the congress after this debate was flushed out, after this question came to the court, that very same committee in reporting to the Congress an act designed to implement the procedures under the Statehood Act made an explicit declaration that the state's view of the Act was the proper one.

We quote on page 40 of our opening brief, it's in these terms, the committee stated Subsection (e) is referenced to land or property that is retained by the United States includes in some cases, mainly those covered by Subsection (c) all land whether it falls within the definition of public land given in the act or not.

And I might add that the opinion of the Interior Department, which was the executive department most intimately connected with the affairs of Hawaii over the years, accorded with the opinion of the state upon the act.

Chief Justice Earl Warren: Is that in the record?

Mr. Dennis G. Lyons: Yes, we reproduced that in our appendix also, Your Honor.

The Interior Department's memorandum is on page 59 commencing in the appendix.

The Interior Department, I think spoke quite cogently.

It said, in the circumstances, there is no reason to suppose that Congress did not mean precisely what it said, that lands including but not limited to ceded lands are subject to reporting by federal agencies and possible subsequent conveyance to the state.

The land subject to the screening provisions at the opinion, and again I quote, “Is also land acquired by the United States by purchase, condemnation, donation or by any other means.”

And the Interior Department commented, “We must suppose that Congress meant what it said.”

And that basically is what this state is conveyed here today.

This again was after the debate, after the controversy came to light and the Budget Bureau I believe asked for expressions of opinions from the various governmental departments, that were concerned with the situation in Hawaii.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Dennis G. Lyons: This was before the Attorney General spoke.

I should say that the departments that only had an interest in Hawaii as a landholder took a contrary opinion.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Dennis G. Lyons: I have intended to submit that on the brief Your Honor, but in view of Your Honor's question I think I shall say a very few words about it.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Dennis G. Lyons: If Your Honor please, we intended those prayers to the read only in connection with the preceding prayers.

In other words, if the only basis that the defendant has for failing to convey is the basis that it puts forward, we would expect that he convey.

But our position is not that we are seeking any affirmative decree and we would want those prayers to be read only in connection with the preceding prayers.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Dennis G. Lyons: I think I do, because the defendant may have some other basis on which perhaps these lands will not be conveyable.

I know of none Your Honor and it is a practical matter, complaints of this nature seem to include these affirmative prayers and these are passed without objection generally.

For example, in some of the passport cases of this Court has passed on, there have been affirmative prayers for the issuance of a passport, whereas the hurdle of the case is simply that the Secretary of State be enjoined from refusing a passport on a particular ground.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Dennis G. Lyons: I would think we could then get a mandamus Your Honor.

Justice Hugo L. Black: May I ask since this controversy occurred, any effort has been made to secure congressional action of any kind?

Mr. Dennis G. Lyons: No effort that has been organized along that line Your Honor.

I don't believe any bill to clarify has been introduced.

There was the declaration which the House Committee which authored the legislation made in its report in which it interpreted in the Act, but there has been nothing by way of attempt to actually pass the statute.

The basic position that the defendant is taking as we understand it, is that by some process of implication, the provisions of subsection (c) of Section 5 must be read as being simply exceptions to subsection (a) and subsection (b).

In other words what the defendant is saying is that subsection (c), operates only on land, which is otherwise conveyable under subsections (a) and (b).

The state as I say rests on the plain language of subsection (c) and in subsection (e).

In support of its contention the defendant has cited the legislative history relating to the statehood bills that were considered at other sessions of the Congress, the bills that were considered seriously from about 1950 through 1958, which were not passed.

And it cites that there was nothing in those bills which did anything like what the state is now contending final bill did.

And from this it seeks to obtain some support for its position.

Justice Potter Stewart: Mr. Lyons you say you were relying on the plain language of subsection (c).

Mr. Dennis G. Lyons: Yes Your Honor.

Justice Potter Stewart: Isn't the phrase set aside rather a little less than plain if we are talking about something which has been condemned by and is owned by the United States?

Mr. Dennis G. Lyons: Your Honor, that is another --

Justice Potter Stewart: Properties that are set aside pursuant to law under any of four different provisions, an act of Congress or Executive Order or Presidential Proclamation or gubernatorial proclamation of Hawaii.

That phrase would little -- not quite consistent with your argument if it is not entirely plain language.

Mr. Dennis G. Lyons: Your Honor this I think leads us directly into another argument which the defendant makes about which I like to speak.

The defendant contends that use of the words set aside in Section (c), in effect is an indirect or implicit limitation on the coverage of Section 5(c).

Justice Potter Stewart: That it necessarily refers to ceded lands.

Mr. Dennis G. Lyons: Well, that view was taken for a while by some of the agencies of the government, but the Solicitor General's position now as I understand it is that it applies both to the -- only to the territorial land and to the ceded land, those two categories, otherwise he is in trouble with definition in Section 5(g).

He contends that, that language amounts to a word of art.

That it can only apply to ceded lands and to territorial lands, that it can't apply to anything else.

Our position is that those words in the context of course do apply to territorial and ceded lands, there is no question about that.

It's common ground for both parties.

But we contend that they are broad enough to apply to the formal processes under which the United States acquired the after-acquired federal lands, that is to the processes of purchase condemnation, gifts, inheritance, the buys and the like.

More precisely to the status of those lands after they were acquired through these processes.

Our position is that once there is a condemnation of land or a purchase of land for a specific federal purpose, that land can be spoken off as being set aside, as being appropriated for that specific federal purpose.

And that, that wording of the Act is broad enough to cover the processes thereby -- rather the status resulting after land was condemned or purchased by the United States for a specific federal purpose.

Now the defendant has attempted to create a sort of myth, a sort of structure about the words set aside and he has gone to some lengths to do this, at one point the Federal Attorney General's opinion says that the word traced back to the 1898 joint resolution of Congress annexing Hawaii, but one may look through that resolution in vain for the word.

Then the Attorney General said that the word set aside has a very particular meaning dealing with Hawaii, and one example of this very specialized usage of the words in connection with Hawaii occurs in Section 16(b), where the words set aside are used, this is on Page 16 of the appendix.

What the Attorney General seems to have overlooked in citing that as a specific use of terminology that was peculiar to the State of Hawaii, is that, that provision is copied verbatim from the Alaska Statehood Act which was passed the year before.

The next provision that the Attorney General, pardon me the Solicitor General says is indicative of a specialized peculiar restrictive meaning for the words set aside is Section 91 of the Hawaii Organic Act, which was the provision permitting withdrawals of ceded land.

And again that provision doesn't use the words set aside, it talks about taking the land for the usage and purposes of the United States.

Actually the same sort of language that one uses in cases of condemnation and goodly proportion of the orders withdrawing land that are pursuant to Section 91, don't use the word set aside either, they use the word withdrawn or the words reserved or the words taken.

Again we are not saying that the words set aside are inappropriate to describe the processes whereby the ceded lands and the territorial lands were withdrawn.

We simply say that, that terminology had not reached the stage of being a word of art, that it couldn't be restricted to that usage, that it fits just as well the situation in which after lands are purchased or condemned, they are appropriated, they are withdrawn, they are truly set aside for a specific use of the United States.

And we cite in our briefs, cases in which the courts have used the language set aside and the synonym such as set apart and appropriate in referring to the status of lands after they are condemned.

There is a substantial judicial usage of the terms along these lines including opinions of this Court.

Another basis on which we contend that the language of subsection (c) and of subsection (e) is not simply an exception to the language of 5(a) and 5(b).

Is the fact that there was an alternative bill before the House Committee, HR 1918 it was styled, which very clearly attained the result which the defendant contends Congress attained in the statute as passed.

This form of the bill was not chosen by the House Committee when it settled the language of the Act.

Instead it chose the broad form.

Now the defendant says that the differences are only editorial changes, that they are simply matters of drafting.

If this was the case, we must marvel as we stated in our reply brief at the number of drafting errors and drafting problems that the draftsman made when he put to one side the version which clearly accomplished what the defendant contends for and drafted the final form of the Act.

In the first place he included definitions in Section 5(g) of the Act, which are entirely too broad and entirely unnecessary.

In the second place after he had been very careful in subsection 5(d), where it wasn't even strictly necessary to be explicit, but subsection 5(d) was simply an exception to subsection 5(b), he proceeded to leave off all the words of limitation, when he drafted subsection 5(c) and to make it stand on its own feet and to refer to any lands and all their property.

And there are number of other serious drafting difficulties which are inherent in the defendant's construction which we review in our brief.

The alternative to the view that the state takes of the Act, is one which leaves the gap in the Act, one which makes no provision whatsoever for the surplus federal after-acquired property.

One which just leaves the matter up to the general disposal statutes, which can put the property on the block for a sale to the highest bidder.

The defendant's construction would make the Hawaii Statehood Act, if it had no provision like Section 5(c) and as we construe 5(c), it would make it the only Statehood Act passed in this century which does not contain a provision expressly retaining the federal government's land.

The Alaska Act contains a general retention provision for the federal government's land, just as we contend that subsection 5(c) is.

And there are broad retention provisions in all the other Statehood Acts passed by Congress in the 20th century.

The practical alternative as we have said is that the federal surplus property including properties which are a major portion of the state's public housing will go on the block.

There may well be other surplus lands in the category in question, they would go on the block also.

We contend that Congress meant to compensate the State of Hawaii for the extensive losses of its land, land which was recognized from the beginning as being its inequity, from these extensive losses that took place over the years.

The only way it could do it was by giving the state, the surplus federal purchase property, we contend --

Justice Potter Stewart: I'm going to ask you that's an argument has to be drawn [Inaudible]

Mr. Dennis G. Lyons: There is really nothing of any consequence in the hearings, in the debates.

The reports themselves, the contemporaneous reports are as the defendant I think admits imprecise.

The only clear voice in the legislative history is the declaration by the Committee that drafted the Act past the next year.

We think that --

Justice Potter Stewart: There is a reference to your argument in the Attorney General's opinion but I suppose that's just responsive to your argument, rather than responsive to anybody in the legislative history.

Mr. Dennis G. Lyons: Yes, he states that the -- somehow the house's declaration was negated by the fact that the Senate didn't take the position on the matter in the same year.

The Senate very clearly didn't take a position not because it agreed or it disagreed, but because it simply didn't feel confident to take a position.

Expressly declined to take one, and it must be remembered that the committee which fixed on the form of the Act was the House Committee.

There are the ones who made the basic decision as to what Section 5 should look like and they are the ones who gave the interpretation, the next year.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Dennis G. Lyons: I think they were consulting throughout your Honor.

I think that is plain, they were the department that was primarily charged with territorial affairs.

The other executive departments were interested only where their own specific responsibilities crossed the affairs of Hawaii such as defense responsibilities in Hawaii.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Dennis G. Lyons: I believe that it did, but whether precisely the final form did or not I'm just not certain Your Honor.

The state contends that Congress by choosing the broadest alternative here, intended to take a generous approach towards Hawaii's land problems and to make a broad disposal of surplus federal property.

The executive here took a strange view and a restricted -- a constricted view of that statute.

We believe that by so doing the executive overlooked the clear and generous intent of the Congress and in this suit, we look to the Court to restore the original intent of Congress.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Dennis G. Lyons: It has the right to make the determination whether it is needed or not and I would think that any attempt to review that question would entail the most serious of difficulties.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Dennis G. Lyons: There is no provision for judicial review in the Act, it is not an Act which sets up a series of private rights.

Thank you.

Chief Justice Earl Warren: Mr. Barnett.

Argument of Wayne G. Barnett

Mr. Wayne G. Barnett: Mr. Chief Justice may it please the Court.

My argument like the state's will be limited to the question on the merits, the interpretation of the Statehood Act.

I don't mean by any means to waive our sovereign in defense, but that question is near to the Court and you recently had occasion to consider it and I think I can help you more, if I devote myself to try to unravel the Statehood Act.

I also like to suggest to the Court that if the Court does agree with the United States or with the defendant, on the merits, would be proper to dismiss the complaint for failure to state a cause of action without passing on the jurisdictional questions.

The Court has done that on a number of occasions.

Unfortunately, we didn't cite the cases in our brief, but I have supplied the clerk with a lists of such cases, which will be available if the Court should request it.

As background to the interpretation to the Statehood Act, I want briefly to summarize the nature of the land holding in Hawaii, the governmental land holdings in Hawaii at the time of the Statehood Act.

The first major category with the ceded lands, which were given to the United States on annexation by the Republic of Hawaii.

Those were initially governed by the Joint Resolution of Annexation, which appears at page 20 of the appendix to the complaint.

That gave United States title, however it provided that the ceded lands were not to be governed by the general land laws of the United States and rather that except for such part of the lands as were used or occupied by the United States for civil or military purposes, the lands would be used solely for the benefit of the inhabitants of the Hawaiian Islands.

Now that created the trust concept and that undertaking was carried out two years later in the Hawaiian Organic Act, which of course was the basic charter created in the territorial government.

The provision concerning the control of the ceded property is Section 91 of the Organic Act.

And that Section is in the government's case is central point and we think it is the key to an understanding of the Statehood Act.

It appears at page 63 of the government's brief.

The first sentence I would like to read part of it, provides that the property that was ceded to the United States by the Republic of Hawaii shall remain in the possession, use and control of the territory.

Until otherwise provided for by Congress or taken for the uses and purposes of the United States by direction of the President or of the Governor of Hawaii.

Now that provision thus gave Hawaii the territory possession of the all the ceded properties subject only to the power to withdraw specific parcels for federal use.

They could be withdrawn under 91, Section 91 of the Organic Act by Act of Congress, by direction of the President or by direction of the Governor of Hawaii, and that as we will later show is the direct antecedent of Section, subsection (c) of the Land Grant Provisions.

I would also like to note at the beginning of the next sentence, because that we will also show is the antecedent to Section -- subsection (e).

That provided that any such public property so taken for the uses and purposes of the Untied States maybe restored to its previous status by direction of the President.

That is to say the President could terminate the set aside or withdrawal of the land and return it to the possession of the territory.

Justice Potter Stewart: Are you saying in fact that the (c) and (e) really could be reenacted -- these two sentences.

Mr. Wayne G. Barnett: These are the antecedents.

I will show how (c) and (e) evolved into their final form.

There is also -- I went in through the territorial property also which is second category, but my first category are the ceded lands which United States had technical title to, the territory had possession and we have the right to set aside specific parcels by any of these means enumerated in Section 91.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Wayne G. Barnett: That's right, this simply says it maybe taken for a use.

Admittedly, set aside language includes this kind of withdrawal and I don't mean to comply that language is there.

The second category of lands are those that the territorial government acquired in its own right, with the territorial revenues that purchased lands or condemned lands for its own public uses.

Now in 1941, the outbreak of World War II, the Section 73 (2) of the Organic Act, which is also printed in our appendix was amended to make clear that even those lands could be set aside for Federal use by direction of the Governor of Hawaii.

I might say -- I don't think it's particularly relevant, that Section does use the word set aside.

I don't attach any imaginary meaning to the word set aside.

The third category of lands probably governmental lands were those that the United States purchased from private owners either voluntarily or through condemnation procedures.

The status of those lands was exactly the same as land purchased in anyplace in the world by the United States.

There is nothing in the Organic Act or any other law relating specifically to Hawaii that has any particular bearing on the status of land the United States purchased from private owners.

And as I say, their status was the same as that of any land, any place else in the world that United States may have purchased, governed by the same rules of acquisition and disposition.

We had possession, the territory had no interest at all.

Those are the three categories, the ceded land between the possession only of the territory subject to the right of its law, the territorial lands which the territory owned and possessed subject again to the right of withdrawal and the United States purchase of properties which United States owned outright and absolutely and possessed solely itself.

On reading the State of the Act of the land grant provisions against that back ground, I think its meaning becomes clear.

Section 5 begins in page 3 of the State's appendix.

Now, I want to start at the beginning and go through rather than start at the end and work backwards that the State does and I think that really makes the difference.

Subsection (a) says that except as provided in Subsection (c), the state shall succeed to the title of the territory and those lands and other properties in which the territory now holds title.

Justice Potter Stewart: Where can we find these readily?

Mr. Wayne G. Barnett: That's page, it is in page 3 of the State's, I think the appendix.

Justice Potter Stewart: All right.

Mr. Wayne G. Barnett: So Subsection (a) gave to the state the territorial properties subject to the stated exception as provided in Subsection (c).

Subsection D then served that except as provided in Subsection (c) and D, the United States grants to the State of Hawaii, the United States title to all the public lands and other public property.

Now public lands and other public property is defined is subsection G as ceded lands.

So these admittedly limited to the ceded lands.

So taken together, (a) and (b) gave the State all the ceded and all the territorial properties subject only to the provided exceptions, exceptions provided in Subsection (c) and D.

Now, so that point that we come to Subsection (c) that provides that any lands and other properties that on the date of admission are set aside pursuant to law for the use of United States under, one, any act of Congress, two executive order, three proclamation of the President, four proclamation of the Governor of Hawaii shall remain the property of United States.

Now what is -- at least the primary purpose of that is undisputed.

Its primary purpose is to carve out an exception from the grants made in (a) and (b), both of which referred Subsection (c) as an exception and I would note that this specifically incorporates the property set aside for the use of United States under sections 91 and 73(q) of the Organic Act.

And in fact, enumerates all the ways in which such set asides might be affected by act of Congress or by correction of the Governor or the President of the United States.

Now the question in the case is whether Subsection (c) does something more than that and I will comeback to that.

I want to go ahead and complete the outline of the act.

Subsection (d) is not immediately relevant, but it has some bearing in the development of the act in legislative history.

What it does, Subsection (c) related to land that were set aside up to the date of Statehood.

Subsection (d) continues the power to make additional set asides for five years beyond the date of admission, though it is limited to ceded lands that are in fact in the possession of the United States though under informal arrangements with the territory rather than under form of set asides.

In fact it simply gave the military five more years aside which of those that wanted to set aside which to allow to go to the State.

We come then to Subsection (e), which is the focal point or at least initially of the controversy.

So that applies to any land or property that is retained by the United States pursuant to Subsections (c) and (d).

Now any property so retained, the President is required to reappraise – to see if it is still needed for Federal purposes.

If he concludes that is not needed for Federal purposes, it is to be conveyed to the state, any surplus properties within that category, namely lands retained pursuant to Subsection (c) and (d).

Now basically the position of the Government, of the defendant, I'm representing Mr. Gordon if I [Inaudible] I hope you will understand, our position is that the lands retained pursuant (c) are simply those which (c) reserved out of the grants made in (a) and (b), namely the ceded and territorial land which had been set aside and therefore were reserved by (c) out of the grants.

Justice John M. Harlan: [Inaudible] I think (g).

Mr. Wayne G. Barnett: (g); first to find public lands have been ceded and says that the term any land shall include that.

I shall not exclude that and that's quite right.

The reason that this statute necessarily does not use the narrower term public land is because it also applies to the territorial lands, which is not ceded land.

The set aside -- it is the knowledge some of the set aside properties originated as territorially purchased property.

They were not ceded properties, and they could be set aside under 73(q) of the Organic Act.

And to make these provision broad enough to include such property, it was necessarily to use the language any land rather than any public land.

Public land is a narrower term.

I think that is a red herring in that issue.

The statutes to begin with -- but let me just -- the statutes to begin with any land or any person is fairly common, you then carve down initially all inclusive categories and here it is carved down initially any land that is retained pursuant to Subsection (c) and the question is what that limiting phrase means.

Now, before I go back to Subsection (c), I would like to -- initially a question of interpreting that phrase in Subsection (e); now pursuant to Subsection (c) could mean that the State assumed that it means simply as declared Subsection (c).

It's enough if Subsection (c) declares to retain it.

Another meaning and I think a more plausible one is that pursuant to Subjection (c) means by virtue of subjection (c), something that the United States retained because of Subsection (c) that it would have not have retained without it and if the later is the meaning, it does not include purchased properties because we would have kept purchased properties if Subsection (c) had never been in the act.

This is the reason simply being that there was nothing giving them away, there is no need to have a provision saying anything about them and they would have remained our property.

And reading the reference pursuant to Subsection (c) as a reference to a operational provision, it does not include purchased property.

We retained the purchased properties not pursuant to Subsection (c), but by virtue of the absence in the act of anything giving them away.

That's a complete answer of the state's case, probably even going back to the Subsection (c).

Justice Hugo L. Black: What lands are given away?

Mr. Wayne G. Barnett: By Subsection (e), the basic grant is of ceded in territorial properties.

The lands were ceded to us in 1898 and the lands that the territory purchased out of territorial revenues, those were all given to the state.

Out of that grant, we reserved the properties that had been set aside specifically for Federal use.

Subsection (e) then says that you shall reexamine your need for those lands that you set aside and convey them if you find that they are no longer needed.

The whole act becomes one very simple unified -- serves one very simply unified purpose, the grant of all the ceded and all the territorial properties except those that were set aside and are found still to be needed for the United States.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Wayne G. Barnett: I want to go through the paragraphs and show what the changes are.

It wasn't said explicitly in the paragraphs.

The paragraph said nothing about purchased property.

It was simply a different location of the reservation of the set asides.

And it's a change in the location of exactly the same language of the set aside provision on, which the State builds, but I would like to make a chronological development to that after I go through the text of the statute.

Now, but I will assume for the moment that it will be enough to satisfy Subsection (e) if you could find in Subsection (c) simply a declaration that after all the government was retaining purchased property.

It would be an unnecessary declaration to have that, but if it was there, I will agree arguendo that would bring it within Subsection (e), and then turn back to Subsection (c) itself, because I think I can show that it doesn't contain such a declaration.

And now in looking at Subsection (c), I first want to emphasis that there is no disagreement about its operative function.

What it does independently?

Independent force is solely as an exception to (a) and (b).

It reserves from the lands otherwise granted by (a) and (b) the ceded and territorial lands, those that had been set aside in enumerated ways, and that the only effected independently has and that is agreed.

The difference is that the state says, where it also recites, simply declares that the United States is retaining the purchased lands unnecessarily, but they didn't have simply a declaration that provides a predicate for the later operation of Subsection (b).

Chief Justice Earl Warren: We will recess now Mr. --

Mr. Wayne G. Barnett: Mr. Chief Justice.

I just began to examine the precise language of Subsection (c).

I have made the point that its only operative effect is to carve out the exceptions to (a) and (b).

I would like to note that that function provides a complete explanation of the precise choice of language used in Subsection (c) and only that function.

Subsection (c) talks about land set aside pursuant to law used in United States under any that enumerates four things, act of Congress, executive order, proclamation of the President, proclamation of the Governor.

(a) rather unusual category I think and what it is explained by, that choice of language is explained by the Organic Act, which had conferred the power to withdraw ceded properties and later the territorial properties under the -- by the enumerated means.

And all – I don't say that concludes the case, but I do want to note that that function is a complete and adequate explanation for the choice of words used in Subsection (c).

Now the state also -- state says that it -- nevertheless they agree that does that, but they it is also broad enough to encompass purchased properties and it constituted a declaration that the purchased properties are to remain the properties of United States.

I would say first that if the words could be made to do that, it remained a very awkward way to describe a purchased property as the setting aside pursuant to law for the use of United States under an act of Congress.

It's a very cumbersome way to say property purchased by the United States.

I want to show that the words can't be made to fit and the state says that when you purchase property or condemn it, it is set aside for the use of the United States presumably from all the other property in the world.

And that it's pursuant to law under an act of Congress, because Federal agent can buy property only if it's been authorized to do so by statute.

Now, I would like to break that up into two steps.

First, set aside for the use of the United States, that phrase.

Now it says for the use of the United State and it seems to me that the words used and implied were a transfer of use and possession, not a transfer of title, set aside the use of the property.

You remove it from the possession of one person to the possession of another, not a transfer of title.

Now they try to get over that problem by speaking of the dedication of purchased property to a specific Federal use, you take it for defense uses rather than some other use and that is a setting apart for a particular use, but the statute doesn't talk about setting aside for particular uses, it talks about setting aside for the use of the United States.

Justice Hugo L. Black: May I ask you Mr. Barnett, I'm not sure that is in history.

Is any history in this country in connection with that thought that you have now, when states have condemned property heretofore for public use, what has happened to the property when they cease to use it for that purpose in the Maine and is there any history in connection with Federal condemnation in that field.

Mr. Wayne G. Barnett: The federal properties -- I am unaware of any case in which under a state land grant or properties purchased by the United States from private persons or condemned specific parcels have been given to the state.

They speak of Alaska as giving away purchased properties.

That right, they were purchased from Russia for $7,200,000 and they purchased, I think it was called Seward's Icebox, that's the purchase they take about in Alaska.

Those are the public domain lands in Alaska.

We acquired the cession of sovereignty and ownership by a inter-governmental purchase, if you like, but it's still a purchase of a very different kind and the kind of purchase or condemnation of specific parcels of land from private owners that we are concerned with here and they to my knowledge have never been given to a state as upon the creation of the state --

Justice Hugo L. Black: In other words –-

Mr. Wayne G. Barnett: -- the Surplus Prosperity Act.

Justice Hugo L. Black: -- let me make sure I understand you then you go.

Mr. Wayne G. Barnett: Yes.

Justice Hugo L. Black: As I understand you, therefore the government has bought property for use for military installation or for a post office or for something of that kind, it has always owned that property, absolutely and to dispose of it even though the property cease to be used for the purpose for which it was purchased?

Mr. Wayne G. Barnett: Yes sir, quite true.

The Surplus Property Act that generally governs dispositions not just Hawaii but throughout has a system of priorities for disposition of surplus properties and some of them I think are given to states for specific uses I think for schools, hospitals, there are some provisions to make specific fortuitous dispositions of surplus property and those would equally apply to Hawaii, but only -- that is the only kind of grant ever made of this kind of property.

Justice Hugo L. Black: I recall we've had some cases that perhaps the reason the authority did, railroad, we had one case in particular, the problem was who the title would go back to if the railroad cease to use its property for a railroad that was quite a question, problem?

Mr. Wayne G. Barnett: I don't know the case, I guess it would come back to the United States.

Justice Hugo L. Black: What is that?

Mr. Wayne G. Barnett: I don't know the case, my guess would be it would comeback to the United States.

I don't know what --

Justice Hugo L. Black: Well, this was not a United States case.

This was --

Mr. Wayne G. Barnett: I'm sorry.

Justice Hugo L. Black: It came to us from Illinois where they were [Inaudible] some oil --

Mr. Wayne G. Barnett: No I think the federal land --

Justice Hugo L. Black: Or right of way.

Mr. Wayne G. Barnett: They were made to support the building the railroads.

Justice Hugo L. Black: What's the history and connection with the state condemnation than purchases of property?

Mr. Wayne G. Barnett: Well, I don't suppose they would have a similar question, after -- before the --

Justice William J. Brennan: Well Mr. Barnett I can tell you this, because that came up in my state when I sat on the New Jersey Supreme Court.

(a) condemnation for the use of educational purpose, the building is no longer used for educational purpose.

The question then arose whether the municipality could sell it, part of the proceeds or whether there was a possibility of averment, the heirs of the owners who owned it at the time --

Mr. Wayne G. Barnett: They made a contribution -- well I don't still --

Justice William J. Brennan: But that was the problem.

Mr. Wayne G. Barnett: But no, is the status of -- well certainly the status can be --

Justice William J. Brennan: I don't remember how we decided it.

[Laughter]

Mr. Wayne G. Barnett: The status of the public land, the public lands of Hawaii are very different any other state.

What would normally be the public lands are what we refer to here as ceded lands.

They were the public lands of Republic of Hawaii, and they were given to the United States much in the same way as Alaska was ceded to the United States by Russia.

So really the parallel there is between the ceded lands and public domain in Alaska, which we did in truth as part of my purchase in a very different sense, but generally there is no more reason why Alaska would have -- I think Hawaii would have an interest in surplus military installations that happened to be located in Hawaii for strategic reasons than any other state.

Justice Hugo L. Black: Well do any of the other states, have any of them had an agreement of this kind?

Mr. Wayne G. Barnett: Oh, I grant you if this agreement encompasses this kind of property there is a reason apart from -- I hope to show that --

Justice Hugo L. Black: Yes I understand.

I just wondered if this would have repercussions in connection with land in other states such as Alaska or other states have been admitted.

Mr. Wayne G. Barnett: I'm unaware of any possible or similar problem of that sort.

Justice John M. Harlan: At some point I wish you would come back to the small exchange we had and tell me why you think (g) is red herring?

Mr. Wayne G. Barnett: The argument, they make -- the statute says any land, rather than I suppose what they mean they should say any public land.

Justice John M. Harlan: Yeah, I know but (g) certainly shows apart from the arguments you are making that the Act was intended to cover the waterfront as one would suppose, Congress would do an important --

Mr. Wayne G. Barnett: I would doubt that (g) shows that.

I was just -- first of all the definition of public lands was first inserted at the insistence of the United States at the military department I think to make clear that it did not include any federally purchased property, that's where the definition first came from.

Now they added the qualification through the definition that any lands or properties, includes public properties.

I take it to avoid any negative implication, that if they defined public property ceded and then used any property elsewhere, it might be an implication that, that excluded public property.

I think that's all that (g) says.

And as I say, in fact the term public property would not have been appropriate in these uses.

It had been a term broad enough to encompass the properties otherwise within (a), namely the territorial property and that's why they don't use the term public land in subsection (c) and (e).

Justice Arthur J. Goldberg: [Inaudible] this controversy arose [Inaudible]

Mr. Wayne G. Barnett: Yes sir.

Justice Arthur J. Goldberg: And at least they were familiar with properties [Inaudible]

Mr. Wayne G. Barnett: Now I'm rather inclined to think that's what they meant to say.

What they said is perfectly opaque.

They simply say that any land means any land and we've never suggested it didn't mean any land.

What we have argued is that the qualifying phrases that follow that open ended term carve it down to size.

Now, whether they were purposely equivocal or whether they meant to answer the question I don't know.

I do know that although some effort was made to have the Senate Committee endorse that interpretation, they refused to do so and I think it is fair inference -- there was some doubt about the finding.

Justice Arthur J. Goldberg: [Inaudible] as I recall Attorney General's opinion Congress of the United States have said that according to Senate Committee [Inaudible]

Mr. Wayne G. Barnett: Oh yeah, yeah.

Justice Arthur J. Goldberg: [Inaudible] they didn't have time.

Mr. Wayne G. Barnett: That's right, they just said -- they said we don't have time.

It's a complex problem we are going to take it up.

Justice Arthur J. Goldberg: Has anything happened since that time?

Mr. Wayne G. Barnett: Nothing officially.

Justice Arthur J. Goldberg: The committee has not [Inaudible]

Mr. Wayne G. Barnett: No.

Justice Hugo L. Black: Are we correct in assuming the only consequences of this lawsuit relate to whether the land the government doesn't need in Hawaii, it gives up because it doesn't need it.

And the value of that land will go to the State of Hawaii instead of stay in the Treasury of United States?

Mr. Wayne G. Barnett: That is my understanding.

That is all that is involved in the case.

As to the quantity of land it would be, turn on that, I don't know, for housing --

Justice Hugo L. Black: Part of that –-

Mr. Wayne G. Barnett: I don't know -- someone has suggested something $15 million, $20 million dollars worth.

Justice Hugo L. Black: About what?

Mr. Wayne G. Barnett: But I don't even want to give the figures since it's so much out of the air, something on the order of $15 million or $20 million is perhaps a guess.

Justice Hugo L. Black: So this is a lawsuit of over $15 million to $20 million, if that's about right?

Mr. Wayne G. Barnett: Yes, but that's what it's about.

Now (c) as far as the -- I suggest that set aside from the use of United States, it doesn't -- it can't be made to government to include a condemnation or act of purchase.

Justice Arthur J. Goldberg: So Mr. Barnett what do you [Inaudible]

Mr. Wayne G. Barnett: Perhaps you do, I'm confident that no one that sat down to draft a statute to talk about condemned lands, to use that language.

Justice Arthur J. Goldberg: How would you describe it in your own language?

Mr. Wayne G. Barnett: I would call it a purchase or a condemnation.

Justice Arthur J. Goldberg: What happens to the land [Inaudible]

Mr. Wayne G. Barnett: I would not talk about transferring the use of it, I would talk about transferring the feasible ownership of it.

Justice Potter Stewart: Acquisition?

Mr. Wayne G. Barnett: Acquisition --

Justice Potter Stewart: When you go to a shoe store you don't say I'm here to set aside a pair of shoes for the use of Mr. Barnett, you say I'm here to buy a pair of shoes.

Mr. Wayne G. Barnett: That's right, that's right, but let me go into the other aspect of this --

Justice Arthur J. Goldberg: For use.

Mr. Wayne G. Barnett: For use.

The other aspect is the statute speaks of setting aside pursuant to law under any of the four means.

Now they say the relevant one mean is pursuant to law under an act of Congress.

Now in their use that becomes a redundancy, because the act of Congress they talk about is the one that authorized the acquisition.

Now, in our interpretation it is not a redundancy.

Pursuant law is pursuant to the reserved power in the Organic Act, the alternative means of setting things aside by an act of Congress, means an act of Congress setting aside a specific parcel pursuant to that reserved power, and that was done for example in the creation of the National Park, The Hawaii National Park in the Act of 1916 specifically set aside a large area of ceded property for use as a National Park.

So in that use there is no redundancy, pursuant to law and pursuant to the authorizing statute under an act of Congress, is an act of Congress which executes that authority.

Now it is only reading it that way that first category, an act of Congress occupies the same function as the other three.

The other three aren't authorizing things.

There are needs of executing some general power.

Now, additionally I would like to suggest, under their supposed literal reading that this includes purchased lands, under that reading literally it is not limited to lands in Hawaii.

Their reading would equally apply to property in the District of Columbia if there was surplus and under their reading if you applied it literally they would be entitled to surplus property any place in the world.

Justice Hugo L. Black: What was the title of the act?

Mr. Wayne G. Barnett: No, I agree that we have no trouble carving it down by an implication.

All I am suggesting that a literal, a purely literal reading that they suggest there is, creates a problem.

Justice Hugo L. Black: Are you agreeing that literally that Congress has agreed to what they say?

Mr. Wayne G. Barnett: Oh yes, but we say the – (c) and (e) are confined to Hawaii because (a) and (b) are confined to Hawaii, and if you read (c) as an exception to (a) and (b) you have no problem.

Now we read it as so confined by reading the language set aside pursuant to an act of Congress or direction of the President or the Governor as a specific reference to the power granted in Section 91 and 73(q) of the Organic Act.

And it's by those references that it is confined among other things to Hawaii.

The State esques those limiting references and ends up with an open-ended provision that they have to find some other way to carve that down because it obviously cannot as you suggest [Inaudible]

Justice Hugo L. Black: Has the state indicated what it wants this property for?

You have to sell it, is that it?

Mr. Wayne G. Barnett: No, they specifically pointed to four housing projects which they say are -- they would use as low cost public housing.

Justice Hugo L. Black: State public housing?

Mr. Wayne G. Barnett: As I -- I don't quite know what the arrangements would be, but they want to use it as low cost housing.

Justice Potter Stewart: Now existing federal housing projects, aren't they?

Mr. Wayne G. Barnett: Yes, they are housing --

Justice Potter Stewart: They have already been developed --

Mr. Wayne G. Barnett: They were navy, for navy personnel originally.

Justice John M. Harlan: What this all comes down to as I understand it.

You are both in agreement with each other that the Act can be read either one of two ways.

Mr. Wayne G. Barnett: I don't mean to be in agreement with that.

Justice John M. Harlan: Aren't you?

Mr. Wayne G. Barnett: I was just trying to show that it cannot be read that way.

Justice John M. Harlan: I thought what you answered Mr. Justice Black indicated that.

Mr. Wayne G. Barnett: Oh no, I agree that if their position were otherwise right, I would have no trouble carving it down to Hawaii.

I agree one can make that implication.

Justice John M. Harlan: Well, that means that you can read the act --

Mr. Wayne G. Barnett: I don't agree that --

Justice John M. Harlan: You can read the act the way they do.

Mr. Wayne G. Barnett: No, I said if it is otherwise right, and otherwise is a big word.

Justice William O. Douglas: I misunderstood you, I thought you agreed with it.

Mr. Wayne G. Barnett: Oh no.

Justice William O. Douglas: I thought it was right to this convention.

Mr. Wayne G. Barnett: I hope not, no, no.

Justice Hugo L. Black: I thought it was right if you read the language literally.

Mr. Wayne G. Barnett: No, I say read it literally.

Pursuant to law and an act of Congress isn't redundancy, as they read it.

I don't know how they make both phrases sort of function, because they say that a condemnation satisfied this because it has to be authorized by a statute.

Now that makes it both pursuant to law and both under an act of Congress I take it.

They satisfied both requirements to one source of authority and that I think is an impossibility.

And secondly the statutes speaks set aside for use of United States, which I say, the more literal reading is that is a transfer of use.

Also they talk about a set aside for a specific use and the statute doesn't talk about set aside [Inaudible]

Justice Hugo L. Black: [Inaudible] using your shoe example?

Mr. Wayne G. Barnett: Well, the transfer of ownership includes use, I agree.

I don't call that a very literal reading.

Justice Hugo L. Black: But you say, it's the same as if a man goes into the store in your shoe illustration and says I want to get to use those shoes while I need them, what do you charge me for?

Mr. Wayne G. Barnett: You could say that I don't call --

Justice Hugo L. Black: Would that be a sale or would that be a transfer too?

Mr. Wayne G. Barnett: I think if Congress or the statute about paying the use of shoes, you would not read it as, one I'm taking about being title to shoes.

Justice Hugo L. Black: That indicates that there is some little doubt about definition of use.

Mr. Wayne G. Barnett: Let me add on further text to our argument that under their reading of (c), the language in (e) that says lands retained pursuant to subsection (c) becomes surplusage.

They say that it applies to all lands.

So that (e) would mean the same thing, and simply said, lands retained by the United States, and didn't add pursuant to subsection (c).

That phrase performs a function, it meant to distinguish lands retained under (c), as distinguished from lands otherwise retained and I say the lands otherwise retained are the purchase properties to retain simply because they aren't given away.

Now let's go to another provision of the Act, 16(b), which I think is independently a fairly complete answer to their argument.

That's at page 20 or 16 of their appendix.

This is a reservation by Congress of legislative jurisdiction over certain lands, namely the lands that are controlled or owned by the United States held for defense or Coast Guard purposes.

Then it says whether such lands were acquired by cession and transfer to the United States and set aside by act of Congress or by executive order or proclamation of the President or Governor of Hawaii, the same four things, for the use of United States or were acquired by the United States by purchase condemnation, donation, exchange or otherwise and it will be totally unnecessary to include the second category separately if their interpretation were right.

Now I would like to --

Justice Potter Stewart: Mr. Lyon's point was I think that this was lifted right out of the Alaska Statehood Act, am I understanding it correctly?

Mr. Wayne G. Barnett: Right, I think -- I prefer not to answer that.

I did look at that reference once and was satisfied it didn't bear on this problem, but I'm not sure I can tell you why, I prefer not to try to answer it.

Getting to the history which I think is finite to conclusive answer; it's agreed that all prior bills were limited to ceded and territorial lands, but the 85th Congress, they had all pretty much gotten to the form of the H.R.49.

It was introduced in 85Th Congress by delegate, Burns, he was the delegate from Hawaii.

The form of that is set out in skeletal form at page 47 of the government's brief, the Lands Act provisions in that bill consisted of only subsections (a) and (b); (a), like the act was limited to territorial property and (b) was limited to ceded properties, they also were subject to the reservation of set aside, except that the reservations were incorporated partly into the granting clauses as provisos.

So subsection (a) gave the state -- the territorial lands provided however as to any such lands or other property set aside by active Congress or by executive order or proclamation of the President or the Governor of Hawaii pursuant to law and they mainly so set aside the United States shall be the owner.

And similarly subsection (b) repeated in verbatim the same proviso now that was admitted necessarily limited to those two types of land because it's partly incorporated into the granting clause.

That bill was reported out by the House Committee in House Report 2700.

The House Committee kept the same form and added two changes to subsection (b).

They extended for five years the power to make further set asides, an unlimited power for five more years to make set aside of the ceded properties and secondly they added a second proviso which appears in page 48 of our brief.

That proviso -- second proviso provided further that the provisions of section 91 of the Hawaiian Organic Act which authorized the President to restore to their previous status land set aside for the use of the United States shall continue in effect for a period of five years.

Now that is the origin of the notion that ultimately became subsection (e) of a post-conveyance reappraisal of our need for the set aside and their re-conveyance.

And that was in the 85th Congress, the Committee Amendments.

Now that did not pass and the 86th Congress, which is the one that in which the bill was finally enacted, new bills were put into the hopper. Represent -- delegate Burns introduced H.R.50.

I might say if anyone is interested in numbers the repetitive numbers 49 and 50 reflect the hope that Alaska would become -- Hawaii would become the 49th and later the 50th State, that's why the number keeps recurring number 49 in every Congress and then number 50 in the later Congress, but delegate Burns introduced H.R.50 in the 85th Congress.

It was exactly like his bill in the earlier Congress, limited to the two subsections except that he incorporated the Committee Amendment extending for five years the power to restore.

He omitted the Committee Amendment extending for five years the power to make further set asides.

He just wanted the provision favor to Hawaii and that was his bill.

Now in terms of the appellate equity that we've heard so much about, I find it rather surprising that the delegate from Hawaii had no time ever proposed giving Hawaii anything more than the ceded and territorial lands, that's admitted.

H.R.50 was his bill and it was admittedly limited as all the prior bills had been.

The other bill introduced in the significant is H.R.888 that is the bill that revised the format of the Lands Act provisions, introduced in 86th Congress.

Justice Arthur J. Goldberg: By whom?

Mr. Wayne G. Barnett: That is the important thing; by Mr. O'Brien, Mr. O'Brien of New York.

Mr. O'Brien was the Chairman of the subcommittee on Interior and Insular affairs.

In fact he was the acting chairman of the Full Committee on this matter.

In the 86th Congress he was graciously invited to Chair the hearings before the whole committee, because of his dedication to the cause of statehood.

Justice Arthur J. Goldberg: Is that the [Inaudible]

Mr. Wayne G. Barnett: The administration was four, actually, but I hope to prove if it was a staff -- it was drafted by the staff of the committee.

Mr. O'Brien most significantly was the author of the committee report in the prior Congress that had reported out H.R.49 as amended and he introduced the new measure.

This new measure was described by the Interior Department in their letter when they were asked to comment on H.R.50 and H.R.888, also in 954.

954 was identical to H888, it was introduced Mr. Sailor who was the senior Republican on the Committee.

They -- delegate, Representative O'Brien and Representative Sailor were the Republican Democratic offices, they introduced Companion Bill.

The interior department said this in their letter; it is noted that H.R.888 and H.R.954 that's Mr. Sailor's bill, which are identical bills.

Justice William O. Douglas: Where are you reading now?

Mr. Wayne G. Barnett: This is from the hearings on H.R.50 and H.R.888 at the 86th Congress, first session, page 16, letter from the Interior Department commenting on the bill.

Justice John M. Harlan: Is this in your brief?

Mr. Wayne G. Barnett: I don't believe it is, I don't believe it is.

No, no it's not.

It is noted that H.R.888 and H.R.954 which are identical bills contain technical language changes prepared by your committee staff with the cooperation of this department, while H.R.50 appears to contain provisions of an earlier bill developed prior to agreement on such technical changes.

They describe it as a staff rewriting.

Now I would like strictly to compare H.R.49 as amended in the prior Congress and H.R.888.

If you put them side-by-side there are no substantive changes unless this implicit one for State against [Inaudible] Now by the time the committee gotten through with H.R.49 in the prior Congress, it was a very cumbersome complex provision.

Subsection (b) alone did these five things.

It granted to the state the ceded properties, it reserved from that grant, the ceded properties has been set aside enumerated ways.

It extended for five years the power to set, make further set asides, it extended for five years the President's power to restore to set aside properties and it's incorporated within itself the definition of public lands, all five things in one subsection, it was good cause to revive it.

Now you can trace every provision of H.R.49 into H.R.888. Subsection (a) of the bill is enacted in H.R.888 was limited now since it's granting the territorial properties without repeating the proviso, but simply referring except as provided in Subsection (c); (b) get the same thing for the ceded property; (c) is where the reservation of set asides was put, D is where they put the continuation for five years of empowering to make further set asides and H.R.888 but that was unlimited, that was a wide open provision.

And (e) is where they put the continuation of the power to make to restore unneeded set aside and the definition was put in the (g).

Justice Arthur J. Goldberg: You say [Inaudible]

Mr. Wayne G. Barnett: I think --

Justice Arthur J. Goldberg: [Inaudible] the state department which tells the Attorney General that this question ought to be decided in Hawaii [Inaudible]

Mr. Wayne G. Barnett: I think this time I can have my cake and eat it.

After saying that was the opening sentence, later on in the Interiors letter, they came to Section 5 and they noted that the provision for further set aside was totally unlimited 5(d) and a couple of other aspects related to that and their letter says this.

We understand that these provisions were drafted after consultation with the Department of Defense and we shall therefore not comment on their detail, but they go on to say, I think there are some limit on one of the other provisions and it shouldn't be quite so open ended.

All the evidence is that this was the land provision was defense department's concern not Interior's concern.

Justice Arthur J. Goldberg: [Inaudible] interested in making sure [Inaudible]

Mr. Wayne G. Barnett: Oh, yes.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Wayne G. Barnett: Yes, that was their primary concern, but none of them suggested that the purchased properties would ever be given to the State.

In the prior Congress when the definition of public lands wasn't in the bill, it was added specifically I think it was just -- to make perfectly clear that the purchased lands were not to be given.

And I think throughout military department has been -- this department has been the agency primarily concerned with the form of these lands, Interior --

Justice Potter Stewart: But, Mr. Barnett, as my brother Goldberg suggest the Defense Department and I have an obvious interest in being sure that whatever they needed or thought they needed --

Mr. Wayne G. Barnett: Oh yes --

Justice Potter Stewart: -- they get that but they wouldn't have any concern of whatever with what happened to that property which they didn't need and that's the only issue here before us.

Mr. Wayne G. Barnett: Well I'm not sure that's right.

I'm not quite clear what happens to the proceeds of sale where they go back to the defense appropriations or not.

I'm not -- certainly they don't have the --

Justice Potter Stewart: And, one of the Surplus Property Act, you think possibly the proceeds might go back in the defense department?

Mr. Wayne G. Barnett: I just don't know if that's possible.

I don't really have any particular idea about it, but let me go on, because I think it gets more conclusive all the time.

Finally, if you simply put side-by-side the House Committee's report at the prior Congress on H.R.49 and its report, the committee report on the bill as openly enacted, you will find that they are substantially identical in language.

They simply took the report of the prior committee and hatched it up to reflect the change, the main change that they made was to limit the five year period, the right to make further set asides for five years to the properties that the military was already in possession of under informal arrangements, that was the main change.

Now that was the main difference between Mr. Burns' bill and the committee's bill H.R.888 and that difference was pointed during the hearings of Mr. Burns pressed the defense department whether they needed that open ended provision and they acknowledged that all they really needed was the authority as to the lands they were occupying already under permit and so that provision is appropriately carved down.

During the hearings which were chaired by Mr. O'Brien, there was never a suggestion that the bill differ in this respect and it was comparative hearing between the two bills, and there was no suggestion to the difference.

The committee reports are virtually identical in the prior Congress and this Congress and there the State says the change occurred.

There is not a word in committee reports to suggest the change and in fact what is in the committee reports, I think quite conclusively shows that the bill was still limited to ceded and territorial properties.

The community report and this is identical in the Senate report and the House report, this is a report on the final bill.

When Hawaii was annexed in 1898 the crown lands of the former monarchy and the government and the government lands became federal lands.

Through the years some of these have been set aside for special purposes.

The territory has administered the public lands except Federal reservations for the United States Annexation.

Section 5 of the bill provides and this is on the specific provision that the state of Hawaii shall succeed to the title now held by the territory to most of the remaining ceded lands and the State points out that that is technically inaccurate, the State didn't have titles of ceded lands, the United States had technical title, the territory had possession.

We acknowledge that that is right.

That doesn't detract from the substance of what the committee is saying.

The State shall succeed of the territory -- of the territory in the remaining ceded lands saving to the United States title to all the lands set aside for public use under act of Congress, executive orders or Presidential or Governor proclamations.

That's all it says about Subsection (b) and (c).

Then it says further down, this is in our brief by the way, to the end of the legislative history, it's on page 55 and 56 of that much.

Then further down the bill also retains in effect President's authority to restore lands to their previous status after admission, that is how they described (e).

They describe (e) in terms of the old, the original idea of extending that power under the Organic Act for five years.

The power to restore lands to their previous status that was the language of the Organic Act and of the proviso to the bill in the prior Congress and that's all they thought of (e) as doing and therefore is necessarily be limited to the lands governed by the Organic Act.

I think --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Wayne G. Barnett: Yes, there is something -- again, let me say the -- no one has a very clear idea of what title was, everything is little confusing.

In the appendix of the State, page 65 and 66, this is in the house.

In the Senate, there was one simple statement which has no light at all.

This does bear on it.

There is some confusion there, I think it fairly -- it's fairly clear to me what it means.

I'm not sure I can persuade you about it.

There was a question; they were asked about the – Mr. Aspinall -- Mr. Gross just asked about, that the President's power to dispose the property within five years and Mr. Aspinall explained it, and further down Mr. Sailor interrupts at the middle of the page and says, “I should like to call attention of the members of the house to the fact that the federal land in Hawaii comes in two classes,” and first say there are three class.

“First, those to which the federal government has titled and fee.”

I think what he means by that is the purchase of property.

That is the way it spoken up in the military department, property we purchased and no one thinks that the ceded land things we own in (c), we have technical title but only the right of use under the set aside power, those to which the Federal Government has title and fee, those are not affected at all by this bill.

If I'm right about putting in the first sense, he specifically declares those not affected at all by this bill.

Mr. Sailor by the way was the senior republican on the committee introduced the Companion Bill and introduced a Companion – the written bill at the end on it, and so he is relatively authoritative.

Now further down Mr. Gross asked why should they -- the grant of the State not come -- why shouldn't the State come to the Congress for the disposal land, rather than letting the President have the authority and Mr. Aspinall who is the chairman of the committee says, “Those territories are in reality properties of the territory of Hawaii and that's certainly is true only of a ceded in territorial land.

Justice Arthur J. Goldberg: What [Inaudible]

Mr. Wayne G. Barnett: Page 65.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Wayne G. Barnett: “Our provision provides that the area is now held by the United States one purpose or another, maybe--”

Justice Arthur J. Goldberg: That's another, one purpose or another.

Mr. Wayne G. Barnett: “Maybe held by the federal government for an additional period, but not over five years for determination as to how much of that is needed permanently for the Federal Government.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Wayne G. Barnett: Well I – I didn't – because of these ambiguities, I don't think we can make an awful lot of it.

Justice Potter Stewart: He does say held but not owned, Mr. Aspinall --

Mr. Wayne G. Barnett: Well, all right, I'll accept that.

Mr. Justice Brennan?

Justice William J. Brennan: [Inaudible]

Mr. Wayne G. Barnett: I would, the thing it seems to us -- the purpose of this never changed from the original bills through to the final bill.

It was always to give Hawaii the ceded and territorial lands subject only the reservation of the set aside if they were found and felt to be needed and that is the only purpose of the bill and Subsection (e) is so limited.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Wayne G. Barnett: I would say it's crystal clear, I -- the difficulties of -- sir, let me say it's always difficult when a statute is drafted as an exception from an exception which is what (e) is; (c) is an exception is made in (b) and (b) is an exception from (c), and that always creates ambiguity, but in this case, I think the problems of reading the statute the way that the State reads is insurmountable.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Wayne G. Barnett: Well, the -- I don't know.

The equities get very hard to trace some sort of thing, there were benefits for the territory, they come in a territory of the United States and many [Inaudible] exerted absolute ownership of the land.

Now we didn't.

We took them basically trust of the Hawaiian people subject only to the right to appropriate what was specifically needed for military and civil purposes.

Now, over the years the President -- the presence of the military in Hawaii has been one of the major industries in Hawaii, and has contributed a great deal to the Hawaiian economy.

It's not been a one way street and basically the ceded land seemed to be in the category generally of the public domain and other contexts, except that we happen to acquire them in this way rather than by purchase from foreign sovereign as Alaska and I don't know where one gets with the equity.

I find them too difficult to trace through.

I would add to that argument if this is replaced with the ceded land that we took it's rather surprising that it wasn't incorporate into the trust provision of subsection (f), which does apply to ceded land, they are held for specific limited purposes by the State of Hawaii, and if the purpose of this was to replenish the fund that we had diminished by taking away ceded property, presumably we would have paid it back in the same category that the land we took now.

I don't think that proves an awful lot, but it seems to me that you can answer this case only working through the language of statute and the history and I don't think equities are really going to help.

Chief Justice Earl Warren: Mr. Lyons.

Rebuttal of Dennis G. Lyons

Mr. Dennis G. Lyons: May I please the Court.

The state is unable to draw the parallel in treatment which is that -- between Alaska and Hawaii that the defendant appears to be drawing here.

The Alaska Statehood Act which was passed by Congress just the year before the Hawaii Statehood Act --

Justice William J. Brennan: Excuse me Mr. Lyons did you say that, that Section 16(b) is a carbon copy from the Alaska Statehood Act?

Mr. Dennis G. Lyons: Yes, the only differences are where the Act, where the Hawaii Act says Hawaii, the Alaska Act says Alaska, and where the Hawaii Act says Republic of Hawaii, the Alaska Act says Russia.

We are unable to say that Congress treated Hawaii as equitably as it did Alaska because the fact remains that Congress gave to the State of Alaska 100 million acres of purchased land.

Now it may have been land that was purchased in great part from the Czar rather than from private parties, but it was land that the United States paid a sum of money so large for at the time that the Secretary of State was denounced.

Chief Justice Earl Warren: Was any of it paid to private parties?

Mr. Dennis G. Lyons: I believe that provision deals with the land that bought from the other -- from the colonial power from Russia.

Chief Justice Earl Warren: From Russia?

Mr. Dennis G. Lyons: The situation in Hawaii on the other hand, was land that was taken over without the payment of compensation, which Congress and the Attorney General at once recognized was held in a very peculiar relationship toward the people of State of Hawaii, it was held in trust for them.

Justice William J. Brennan: Well what about most of these lands were directly concern with [Inaudible] land, those acquired by the Federal Government by condemnation, purchase or other acquisition.

Were they lands in private ownership at the time of Annexation Act?

Mr. Dennis G. Lyons: Yes they were, but it was to -- the only grants of purchased land that the United States could make in Hawaii would be the grants such as we claim are made by Sections 5(c) and 5(e) of the Act, the grants of the surplus after acquired property, and this -- at most covered 30,000 acres, most of which would never be declared surplus anyhow.

Now this contrasts with the grant of 100 million acres of purchased land in the State of Alaska.

Justice Potter Stewart: So that's -- I suppose there is probably not 100 million acres in all of Hawaii.

Mr. Dennis G. Lyons: Right.

Justice Potter Stewart: You are comparing absolute figures between the state bigger even the Texas --

Mr. Dennis G. Lyons: Yes, but we still have an enormous grants of purchased land in the case of Alaska and if the defendant is correct there is no grant of purchased land whatsoever in the State of Hawaii, if we are correct there is grants at the very most of 30,000 acres, very likely not --

Justice Potter Stewart: I think I understood you to say you are talking about two different things, in Alaska there was a grant to the new state of land which the United States purchased from Russia years ago under Secretary of State Seward.

Here we are talking about whether or not the United States has ceded to the new State of Hawaii land which it acquired by purchase or condemnation or otherwise from private individual land owners.

Mr. Dennis G. Lyons: Yes, but the equities in both cases are whether the United States paid money for the land and this is opposed to the situation in which the United States took Hawaii's land without paying compensation and immediately recognizing that equitably it belonged to the people of Hawaii.

Now I was --

Justice Potter Stewart: The government's point is, as I understand it, that the truth comparison between the two states is that the purchased land in Alaska is the equivalent roughly of the ceded land in Hawaii.

Mr. Dennis G. Lyons: Yes and I think the reason where that falls is that the land that was purchased in Alaska was – a valuable consideration was paid for it by the government and there was never any acknowledgment or any principle that land was held in trust for the people of Alaska, quite the contrary in the case of Hawaii, it was always understood that this land was held in a very special way for the people of Hawaii.

Now the defendant professes not to be able to understand the uses of the language in Section 5(c) as comfortably covering the situation in which the land is condemned, I would like as an example of usage to invite the Court's attention to page 112 of our appendix, letter by Secretary Forrestal to the Attorney General in connection with the condemnation of the lands in question here.

You will see scattered throughout that letter language, the very same sort of colloquial language that is used in Section 5(c).

Pursuant to the authority an appropriation contained in an act of Congress begins, and a little later under, it is necessary the lands be acquired by the United States of America under judicial process for the use of aforesaid.

Again these are words that the defendant professes not to find comfortable in a condemnation situation.

Under the authority above mentioned that brings in both in pursuant to and the under an Act of Congress.

We contend that the language used in Section 5(c) certainly is broad enough up to cover cases of condemnation and purchase.

The defendant referred to the bill as emerging under the sponsorship of Mr. O' Brien and a similar bill under that of Mr. Aspinall.

I should like to refer to the hearings before the Senate at the time of 1960 Hawaii Omnibus Act where a witness from the Bureau of the Budget was testifying and the Senate Committee was starting to talk about the statement in the House Report which endorsed the State's view.

Senator Jackson says, this is on page 35 of the mimeographed transcript of the hearings on S3054 in the Senate.

Senator Jackson says, “What is the affect of the house language?”

And the witness from the Bureau of the Budget says, “They say it includes everything and I spoke to Mr. O' Brien and Mr. Aspinall and it was their recollection.

Now there was an alternative Bill before --

Justice William J. Brennan: That is not in your brief Mr. Lyons.

Mr. Dennis G. Lyons: It is not Your Honor.

It's a newly discovered law I'm afraid to say.

The defendant says that the Act as passed simply evolved from HR50.

Now there was an alternative form which the committee rejected before it.

HR1918, which expressly set out and did concisely and accurately what the defendant claims the final bill did.

What the draftsmen did was to reject that form and to use the form that refers to any lands and other property.

In the final analysis though, this Act is one that was ratified by the Electorate of the State of Hawaii after being submitted to them expressly for ratification on the land grant provisions.

On that basis we contend that it is entirely inappropriate to go into the Act in trying to construct upon it implicit references of the most opaque sort to Section 91 of the Statehood -- of the Organic Act, which the Act never cites, to Section 73(q) of the Act, which the Act never cites and which never uses the language anyhow.

We think that the approach, the mode that should be followed in reading this Act is the one that Mr. Justice Holmes once said that this is an Act which has been adopted by the people, just as -- he was -- the constitutional provision about which he was speaking was, and he said there the a popular enactment, this is [Inaudible], must be read and I quote “In a sense most obvious to the common understanding at the time of its adoption, for it was for public adoption that it was proposed.”

In this case Your Honors the state stands on the fair literal meaning of the Act which we believe the most potent words of the legislative history in support.

Chief Justice Earl Warren: Gentlemen there has been some discussion of the legislative history that is not included in your briefs.

Would you mind sending us a memorandum on that subject both of you, thank you.

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