New Hampshire v. Maine – Oral Argument – April 19, 1976

Media for New Hampshire v. Maine

Audio Transcription for Opinion Announcement – June 14, 1976 in New Hampshire v. Maine

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Warren E. Burger:

We will hear arguments first this morning in number 64 original the State of New Hampshire against the State of Maine.

Mr. Bradley, you may proceed whenever you are ready.

Edward Bradley:

Mr. Chief Justice and may it please the Court.

This is a dispute between the States of Maine and New Hampshire over the location of their lateral marine boundary in the Piscataqua River and Gosport Harbor in the intervening marine area.

The legal issue in this case is the proper interpretation of the 1740 boundary decree of the King of England, which describes the boundary in these areas.

Maine’s original interpretation of the decree was an extended thalweg line in Piscataqua Harbor and Gosport Harbor intersecting and intervening marine area.

New Hampshire’s original line is a light sun range line connecting four-point to Whaleback light.

It was Maine’s enforcement of its lobster regulations in the intervening marine area between these two lines, which led to regulatory conflict and an attempt to resolve the boundary through boundary commissioners.

This attempt failed.

Subsequent enforcement action led to conflict between enforcement officers of both States and an Executive Moratorium on enforcement to permit New Hampshire to file its complaint in this case.

New Hampshire filed that complaint on June 6, 1973 and a Master, Justice Thomas Clark was appointed on November 5, 1973.

Soon after his appointment, Justice Clark met with counsel for Maine and New Hampshire to urge the States to settle this dispute and to avoid long and disruptive litigation with great expense to the people of both States.

Counsel accepted his recommendation and met to review principles of law, which would determine the location of the boundary and the proper interpretation of the description of 174 decree.

They were able to reach agreement on this and filed a joint motion for consent decree on September 23, 1975.

In February 27, 1975 the stipulated record in support of that joint motion for consent was submitted to the Special Master and the case was finally submitted without oral argument on March 17, 1975.

After reviewing the stipulated record and the consent decree submitted by the States, the Special Master decided that he had to reject the consent decree, because he believed that the Court was without jurisdiction to enter and also, because he felt the geographic middle rather than thalweg was the proper interpretation of the word “middle” in the boundary description.

State of Maine has taken exceptions to both of these determinations, but before discussing our exceptions, I would like to describe to the Court the substantial prejudice, which Special Master’s rejection of the consent decree, adoption of the geographic middle line and also, his failure to hear full argumentations on the issues below has caused to the interest to the State of Maine.

First of course, we have lost to the State of New Hampshire by the Master’s description of a new line.

Over 636 acres of land in the intervening marine area, land which is in dispute between New Hampshire and Maine fishermen, and presents a great emotional issue in both states.

William H. Rehnquist:

What is that about, one square mile?

Edward Bradley:

Your Honor, the way I have visualized it is that about 2 ½ times the area between the Capital and the Lincoln Memorial.

William H. Rehnquist:

About 640 acres in a square mile are they?

Edward Bradley:

Okay, if that is what it is.

That is my visual reference for, but we do not feel that 636 acres is the —

Byron R. White:

(Inaudible)

Edward Bradley:

No, we have made no calculation of the area that we may have lost in the harbor.

As much objection as we have for the lost of the 636 acres, we feel that we have been much more greatly prejudiced by the Master’s adoption of an equidistant boundary in the Piscataqua River.

The Master, at page 43 of his report, it indicated that it would not be necessary for purposes of this dispute to delimit that boundary, but because we are going to have to live with it, we have asked the state department, the Office of the Geographer to do a rough approximation of what an equidistant line would look like and they have done it on a map that refers also to the thalweg, which we have just distributed just prior to the argument.

As you can see, it is an extremely irregular line, which will be very, very difficult to mark on the water and will give rise to great opportunities for the kinds of jurisdiction and regulatory conflicts, which gave rise to dispute in this case.

Byron R. White:

(Inaudible)

Edward Bradley:

Your Honor, it is merely demonstrative, it is not evidence, it would not be the line that you would adopt in a decree or in anything like that, it is just …

Byron R. White:

(Inaudible)

Edward Bradley:

Your Honor, it was not the consent decree. It was marked by a range lines …

Byron R. White:

(Inaudible)

Edward Bradley:

It is pretty near that your Honor.

Byron R. White:

(Inaudible)

Edward Bradley:

In this river it is the channel of …

Byron R. White:

Is it incredible

Edward Bradley:

It maybe incredible sir …

Byron R. White:

(Inaudible)

Edward Bradley:

Yes sir and it was based on the …

Byron R. White:

(Inaudible) that is what you agreed.

Edward Bradley:

Your Honor, it is the main ship channel.

It is the channel that ships actually used.

Yes sir.

Byron R. White:

(Inaudible) Is there any question in the case, I noticed New Hampshire is not quite happy with our recent (Inaudible) perhaps it was a time of dismay, but New Hampshire Legislature never did agree with the agreement, did it?

Edward Bradley:

No your Honor, there is not.

William J. Brennan, Jr.:

Is there any question of the validity of the Executive of New Hampshire, or I should ask, (Inaudible) question of state law, may have been in agreement of this kind without full legislature?

Edward Bradley:

Your Honor, the position of the State of Maine is that is not an agreement it is merely a suggested judicial resolution, which the Special Master had the power to enter, as the proper exercise of the original jurisdiction.

William H. Rehnquist:

It depends, it is not upon the consent of both states.

Edward Bradley:

Your Honor, it is not a consent to which both States were bound, as we have seen by the actions and behaviors in the State of New Hampshire in this case to date and neither state is felt bound to enforce it against their citizens or citizens of other States.

It had no binding effect until it was adopted by the Court and entered.

And, this is really our response to one of the suggestions that the Special Master has made.

William H. Rehnquist:

In case of the land, whatever you call it, the center or what — Jointly submitted by the two States?

Edward Bradley:

It is a …

William H. Rehnquist:

You have that still?

Edward Bradley:

It is a line, which the New Hampshire legislature does not agree with and never agreed with it.

Neither State could agree with it to the political process.

The counsel for both States, the Attorney General’s Office made a determination that this was the appropriate interpretation to legal principles of the decree and suggested it to the Special Master.

They have not indicated that they do not agree with it, they have just found the answers that the Master’s reasons for rejecting it unanswerable.

Edward Bradley:

I do not take it that it means that they are rejecting it.

They are just finding that if he is correct that they would assert a different line in this case.

That is if he is correct about rejecting thalweg and the lack of jurisdiction of the Court that they would have him apply the principles differently to obtain a different line, but made no statements about whether they rejected the consent decree.

Warren E. Burger:

Is the ship channel that you referred to, is it an artificial channel that has been dredged out?

Edward Bradley:

I really do not know the answer you Honor.

I believe that it is the natural …

Warren E. Burger:

(Inaudible)

Edward Bradley:

It is marked by Bowee Gosport Harbor, it is marked by the range lines in Piscataqua River, which are lights connecting, so that Mariners can determine whether they are on the main channel, as they came in to the river.

William H. Rehnquist:

Is there any authority from this Court as to whether a proposed consent decree needs the ratification of the legislative branches of the two States?

Edward Bradley:

Yes your Honor.

I believe that there is.

I feel that the case of Virginia versus Tennessee.

It is determined that not all compacts and agreements require legislative approval and that only when the parties have done everything they can to bind themselves to an agreement that legislative approval is required.

William H. Rehnquist:

That is congressional approval …

Edward Bradley:

I am sorry …

William H. Rehnquist:

I was thinking, in terms of what sort of authorization do counsel representing two States in an original action of this Court need in order to consent?

Edward Bradley:

I think New Hampshire has answered that in its motion to support the jurisdiction of the Special Master, to enter the consent decree, which was filed with the Special Master and I honestly do not have it in my mind the principles, but they have answered that with respect to their authority and determined at that time that their Attorney General did have authority to enter it.

Warren E. Burger:

What if both of the states, the two states entered into the agreement, which you have entered and then move to dismiss the original action by stipulation of both parties, then there would be no original action left, would there?

Edward Bradley:

That is right your Honor.

Warren E. Burger:

And, would the terms of that agreement then entered in to between the two States, present problems of enforceability, if citizens of one state or the other elected not to imply with it?

Edward Bradley:

Yes your Honor, I believe …

Warren E. Burger:

That is why you want this Court’s action …

Edward Bradley:

Yes your Honor, there is no question that if this agreement was reached outside the context of your exercise of original jurisdiction, that would we have to find congressional approval under Article 1, Section 10 of the Compact Clause.

The point that I started to make with Justice Rehnquist was that the only time that is required, once the original jurisdiction has been exercised is never required once the original jurisdiction has been exercised, because nothing the parties do in the context of the exercise binds them until the Court has exercised its judicial power.

In the case that I cited, Virginia v. Tennessee, 148 US 503, the States of Virginia and Tennessee entered into a preliminary boundary agreements prior to entering into binding boundary agreement and the Court in that case held that all compacts and agreements do not require congressional approval and it is only when the States do something that actually binds themselves independent of the judiciary.

I believe they are outside the context of original jurisdiction that the approval of Congress is required and that is consistent with the reasons the Congressional approval is required in the first place, which was to protect the United States interest against compacts and agreements by the States, which could affect federal interest.

It has been held long time in this Court that the exercise of judicial power is satisfactory substitute for congressional approval, when original jurisdiction is exercised.

And, we believe that the Court has jurisdiction to enter the decree in this case.

Thurgood Marshall:

(Inaudible) that the legislature is taking on it?

Edward Bradley:

The State of Maine legislature has taken no action.

Edward Bradley:

The State of New Hampshire, both houses, as I understand they have passed concurrent resolutions rejecting the decree, but not passed any law, which is binding on them and that is a matter of their state law, which I …

Thurgood Marshall:

That means they have done nothing.

Edward Bradley:

Our legislature has done nothing.

Lewis F. Powell, Jr.:

If the Special Master had accepted the consent decree would the location of the line have been self evident, would the decree itself, have identified the precise location of the …

Edward Bradley:

Yes your Honor, the decree establishes the location of the thalweg and the termination of the thalweg and the straight line portion of the boundary by latitudes and longitudes.

Lewis F. Powell, Jr.:

Mr. Attorney General of New Hampshire, then agreed at one time to the location of the line?

Edward Bradley:

Yes your Honor, in filing that motion for joint judgment, he indicated that “I do not only agree with it, but it was an appropriate application of law and the fact and it was the best interest of the State of New Hampshire at that time.”

William H. Rehnquist:

Could you tell me, what legal principle would support this straight line in the Harbor here?

Edward Bradley:

The principle which supports it is the principle of Maine channel or thalweg.

William H. Rehnquist:

You do not really suggest that on the ground that is what you would find the thalweg?

You have not even attempted to say where the thalweg is, have you?

You have just agreed where it is.

Edward Bradley:

Your Honor, we have agreed to it, but we have agreed to it by reference to charts, which indicate the depths of the water and I understand …

William H. Rehnquist:

There is ought to be a straight line like that.

Edward Bradley:

It turns out to be a relatively straight line.

Potter Stewart:

That is of course that Mainers sail expect.

Edward Bradley:

Yes your Honor, it is definitely the course that Mariners sail.

I have to admit that I honestly do not know that it is exactly the deepest part of the river.

Byron R. White:

But it does not mean where Mainer’s sail does it?

Thalweg means the deepest part of the channel?

Edward Bradley:

The Main part of the channel.

William H. Rehnquist:

Mariners sail, what is safe to sail and if a straight line is more convenient, they sail straight line.

Edward Bradley:

But, the indication that this is the safest place to sail and therefore the deepest is that the largest vessels that come in to the area, stay right on that range line, all the time they are coming in.

They do not deviate from it.

As a matter of fact, in talking to Pilots we have had indications that there is very little room.

William H. Rehnquist:

It is deep enough for the largest ships in that line.

Edward Bradley:

Yes, your Honor.

William J. Brennan, Jr.:

You can conclude that the two parties were mistaken in their agreement that this was indeed a thalweg?

Edward Bradley:

Yes, your Honor.

William J. Brennan, Jr.:

The fact that you consented to it would not conclude us from saying …

Edward Bradley:

No your Honor, if you decided that …

William J. Brennan, Jr.:

This was not the thalweg.

Edward Bradley:

The thalweg was the proper principle, but …

William J. Brennan, Jr.:

The consent agreement should be rejected, if what is to be determined.

The resolution of the boundary dispute is the drawing 15:36.

Edward Bradley:

I would agree that the consent decree should be that the Court would have the power and should not maybe project some consent decree, but they should not accept the Master’s line.

What they should do is send us back for a full determination of the concept of thalweg and where it actually lies on the ground.

This is one of the greatest prejudices to our interest we feel, that we have had, because of the Master’s decision without oral argument.

William H. Rehnquist:

(Inaudible) you are going to get the arguing that he adopted their own principle.

Edward Bradley:

Yes, I am, your Honor.

William H. Rehnquist:

I mean wholly aside from the consent decree.

Edward Bradley:

Yes, your Honor.

William H. Rehnquist:

I mean from the consent itself.

Edward Bradley:

Right, why I am arguing the consent decree is so hard, because the Master has indicated that if you have jurisdiction to enter it, that you should enter it.

And, that he has not felt it necessary to recommend rejection of the thalweg line without regard.

William J. Brennan, Jr.:

(Inaudible)enter it.

Edward Bradley:

I think you have exercised your original jurisdiction.

William J. Brennan, Jr.:

Would we not have to agree that this indeed is in law of the thalweg?

Edward Bradley:

You would have jurisdiction, I believe whether you agreed or not.

You could still reject it as an inappropriately application of law of fact with all respect to jurisdiction.

You could reject it certainly for other reasons than the lack of jurisdiction.

Potter Stewart:

Suppose that you concluded that the 1740 or something in history indicated that the thalweg was not the proper basis.

Do you think that the two States by agreement could adopt the thalweg?

Edward Bradley:

No, your Honor.

Not in this … I just think …

Potter Stewart:

(Inaudible) as you might have to reject the consent.

Edward Bradley:

Yes, it might be a reason for rejecting it, you Honor.

The point that we are making in this case is that every indication in the boundary proceedings was the thalweg was meant when the term middle was used.

The Special Master has referred to some of the evidence we referred to in our brief with regard to the use of channel in the Merrimack River and also, with regard to deeds relied on by Massachusetts, which referred to the Channel of Piscataqua.

There are two indications though that were not cited on the brief or referred to by the Special Master, which we think are a strong indication that the term “channel” was meant,– channel was meant when the term “middle“ was used.

Edward Bradley:

The first of these is the Charter of King Charles II to Rhode Island in 1664 was issued just before the charter that he issued to New Hampshire in 1679.

That charter is described in Rhode Island, Massachusetts at 37 United States 464.

And, in that charter, the King Charles, the persons, who issued one of the boundary determinations that was in the line of title, the boundary commissioners were determining indicated that the definition of “middle” was “channel.”

Thus, when he has describing the location of the boundary between Connecticut and Rhode Island to the South, he indicated that it went to the middle or to the channel of a river there commonly called and known by the name of Pawcatuck.

We think is a contemporaneous indication that thalweg was in vogue and being used at the time the decree was entered.

The Master has seized upon the use of the word “the half” in the New Hampshire’s petition for appeal is apparently the strongest basis for adopting geographic middle and we found a passage in Bellmap, history of New Hampshire, which indicates how insignificant the use of the “half” is in the description of that boundary.

Thus, it is clear that the State of New Hampshire in authorizing the appeal did not use the word the “half”.

The only time it was used is by the solicitor for the State of New Hampshire plus someone who had been hired and was in England filing papers before the King’s counsel and a petition for appeal.

The passage in Bellmap, which is very, very short.

I would just like to read, because it describes the relationship between this solicitor in England and New Hampshire’s actual intentions and he says, “They obliged us to make bricks without straw, above all why did not they send a copy of their own appeal, for want of it, I have been forced to guess what that appeal was.

From loose passages in Mr. A’s letters.”

So the solicitor, who use the word “the half,” had to guess what New Hampshire is doing back in the colonies.

He did not have any direct information, New Hampshire when he used the word “half.”

We believe that strongly this undercuts the Master’s strong reliance on the use of the word “half” to determine geographic middle.

John Paul Stevens:

Will you let us have the page citation for finding that?

Edward Bradley:

I am sorry.

That is page 251 of Bellmap’s History of New Hampshire.

Finally, I like to also note that this use of the word “half” was in the petition for appeal was the second time the New Hampshire used that word.

The first time they used it, they used it with regard to navigational criteria and not criteria based on geometric concepts, such as geographic middle.

Thus, in the boundary proceedings, they indicated that the half of the Isle of Shoals was divided by the Harbor of Rhode, which lay between.

Now, this is a clear reference to navigational use of the area and it is consistent with the use of thalweg or channel in the other portion of the northern boundary and not with the Master’s adoption of a geometric concept to determine the meaning of the word middle.

I would like to reserve the rest of my time for rebuttal.

Warren E. Burger:

Very well, Mr. Upton.

Richard Upton:

Mr. Chief Justice and may it please the Court.

Before I am going for New Hampshire, I would like first to touch on a sole exception to the Master’s report and then, answer the argument just made by Mr. Bradley regarding the consent decree.

Now, the question of law presented by New Hampshire’s sole exception is this, was the Master correct, in ruling that it was proper for him to use low tide elevations, that is rocks protruding only at low tide in Piscataqua River, as points of reference from which to calculate the geographic middle of the river?

And, we argue that this ruling is incorrect, the use of low tide elevation.

William H. Rehnquist:

And, you affirmatively support the rest of the Master’s decree?

Richard Upton:

Yes, you Honor.

William H. Rehnquist:

Including his decision that the geographic middle is the right division in the river.

Richard Upton:

You Honor that is our position.

William H. Rehnquist:

Although it was not?

Richard Upton:

But, the geographic middle, we believe he is correct in this ruling.

But, we think he has located it improperly.

Byron R. White:

It is a principle or you think that the geographic middle is the right …

Richard Upton:

We do and in my reply brief I have argued the point strongly as I know how with citations to the proceedings of the Boundary Commissioners in the appendix.

So, we have only one complaint with the map …

Byron R. White:

Is it your position or what is you position?

Do you think that determination would preclude or did preclude the two States from an agreement?

Richard Upton:

I think that.

— Your Honor, the agreement was based in an entirely different concept of law.

Counsel were dealing then in terms of the thalweg and trying to agree as a matter of convenience.

Byron R. White:

Having decided that the geographic middle is the correct legal principle historically in this situation, do you think that the states were then, disentitled to agree otherwise?

Richard Upton:

I think, now we got the Master’s findings on that we never tried to agree on this point in our agreement.

We never covered this in our negotiations.

William J. Brennan, Jr.:

Does the basis for the agreement, falls out, the agreement falls at.

Richard Upton:

Yes, your Honor.

William J. Brennan, Jr.:

There was not your legislature approval —

Richard Upton:

That is our position.

And so, we argue that he was incorrect in calculating and locating the geographic middle of the river in using these low tide elevations and in particular, a submerged rock of Whaleback Reef.

This is the one thing which distorts the situation so much, because whale back reef is a tiny rock, 1/3 of the way out into the river.

It does not qualify as an island.

It cannot be assimilated to the coast as an island.

Any of the tests this Court has adopted in United States versus Louisiana, 394 US recently, it is a distortion of geography to say that is part of the bank of a river at low tide elevation.

Potter Stewart:

Get the chart which is appended to your exceptions in brief, filed December 23, where are these Whaleback Reef rock?

Richard Upton:

Number three you Honor, the black ink is the Whaleback Reef, Figure 3, just to the left of the line marked, closing line of harbor.

Potter Stewart:

I do not see, but the line does not go from there, though.

Richard Upton:

No, but we are informed that the Master — see in the footnote on pages 42 and 43 of the Master’s report, bottom of page 42.

The way a median line is calculated it is a ground X of the compass to the nearest points.

He says the significant points in Piscataqua harbor are those low tide elevations and low water lines on either side of the harbor that are nearest to each other.

Richard Upton:

And, he mentions Whaleback Reef there, that he did use that as a point of reference in calculating the median line.

We say that was error, that particular —

Potter Stewart:

(Inaudible) headlight point.

Richard Upton:

No, you Honor.

He uses it as a point of reference in calculating the median line of the river.

Potter Stewart:

I see, and this chart shows, as I understand, that the difference in the boundary line that would result.

If you are correct.

Richard Upton:

If I am correct.

Yes, your Honor.

As the Court can see …

Potter Stewart:

Points A and B, then.

Richard Upton:

350 yards, it makes a difference, because it deflects the straight line boundary all the way from there up to the Isle of Shoals, a distance of 6 miles.

The deflection of that line at that point, 350 yards makes a difference of 300 acres to New Hampshire over the whole area.

Potter Stewart:

Are they parallel?

Richard Upton:

No, they are not.

They converge, your Honor at one point at the Isle of Shoals.

It is a long V-shape gore.

John Paul Stevens:

Mr. Upton, before you start, since you are interrupted, I am kind of new on this kind of litigation, what is the standard of review that we should apply in deciding how grossly err, the Master must be before we take another look?

Richard Upton:

As I view it, the Master’s report is entitled to a strong presumption of correctness.

John Paul Stevens:

It is not enough for you merely to persuade us that he might have done a better job.

Richard Upton:

If he committed an error of law, of course questions of law may always be corrected in this Court.

John Paul Stevens:

I did not understand you to contend that it would never in any situation be appropriate to use this projections, low water projections, whatever they are called, or are you just saying that this particular case it is inappropriate.

Richard Upton:

I say your Honor, that it is contrary to any of the precedent in the National law that I have been able to find its contrary to the holdings of all, the writers in this field we have cited in pages 7 to 9 about brief and it is contrary to the holdings of this Court in United States versus Louisiana.

John Paul Stevens:

Were those holdings in particular bad situations or do you read those saying as a matter of law, it is never appropriate to use this kind of reference?

Richard Upton:

Your honor, One of the tests they use is that proposed by Mr. Badge, a former geographer of the State Department to draw a parallel lines at the end of each off shore formation to the shore and if the amount of water area between the island or off shore formation and the shore is greater than the off shore formation, then it cannot be assimilated to the shore and used as a point of reference.

Now, in this situation, this is obviously too small and too far to move from the shore to qualify in to that task.

And, I understand that approach is almost a question of law.

Both parties are having their briefs gone farther than to argue, merely the point of whether the measurement should be made from these off shore formations, whether they are properly part of the bank or the river, which one should measure.

And, we have gone into the analogy of various articles of the Geneva Convention of the territorial sea.

Now, we have may complicate matters by doing this, but we feel obliged to go into it, because the Master did and he used it to justify what he had done here.

Richard Upton:

I think it all stems from Article 12 of the Geneva Convention of 1958, which states that the territorial sea outside of internal waters should be divided between States, whose coastlines are adjacent by Median Line Principle, measured from the nearest points on each State’s base line.

The Masters apparently applied this analogy to internal waters, because we are here in internal waters, inside the closing line of the harbor, whether one looks at it by Maine’s standpoint or by New Hampshire’s standpoint, but I urge to the Court that if we ought to apply this analogy of international law to internal waters, it ought to be done with extreme care and with an eye to the real purposes of the convention.

To do it, we have to consider Maine and New Hampshire as foreign states.

Having opposing coastlines on each side of the river, but this is a very narrow river.

It is a little over a mile-and-a-half wide at the mouth and it narrows down as we go further inland.

Now, how would coastal baselines be drawn on each side of the river from which to measure the median line or boundary?

Now, we say that if this analogy is to be followed at all, Article 3 should be used.

That is the normal baseline follows the low water line on the Maine land.

That islands should only be considered part of the shore if they qualify under the tests of the United States versus Louisiana, that is their size and closeness, makes them really an integral part of the Maine land and that the use of low tide elevations that is rocks exposed only at low tide as part of the baseline is optional under International Law and to use these as measuring points in such close waters is apt to create distortion and unequal division waters of the river and that is just what it would do if this happens.

I think it is demonstrated.

At the very least, a low tide elevation should not have more influence than an island, but if the Master is correct, he would be giving it that effect.

And, we say that was his principle error, otherwise we have no objection with his report.

Now, Maine is referred to Article 4 of the Convention, which is an optional method of drawing long straight baselines.

It is optional not mandatory and it was fathered by the decision of the International Court of Justice in the Anglo-Norwegian Fisheries Case in 1951.

It is optional; it applies to the peculiar coastline that was found of Norway with many deeply intended fiords.

It is not appropriate to apply by analogy to closely bounded internal waters and the decision was never accepted by the United States government.

In fact, a law was advocated by California, it was not followed in United States versus California.

And, to use this method and to use Whaleback Reef would cause much more than a 15 percent departure from the general direction of the Maine shore, which was the maximum thought permissible in the Anglo-Norwegian case.

Now, turning to the point that occupied the Court’s attention, when Maine was arguing, the rejection of the motion for entry of judgment by consent, was the master correct in rejecting it?

And, is New Hampshire’s present position in support of the Master correct?

We believe the Master gave sound and adequate reasons for recommending rejection of the consent decree and we have not taken any exception to this ruling.

The motion for entry of judgment, by consent, and I took part in it, was an effort by the two States to get a comprised settlement.

Frankly, a compromised settlement approved.

It had to become a judgment of this Court or it would do us no good, because our State had already unilaterally adopted a boundary line in consistent with anything Maine would agree to and our legislature had provided that this shall be the line governing all public offices of New Hampshire unless and until modified by a compact or by judgment of the United States Supreme Court.

William H. Rehnquist:

Was that just a resolution by your legislature or was it approved by the Governor?

Richard Upton:

That one, you Honor, was a law, which passed and was approved by the Governor, the one I just quoted.

And, that was passed before we entered in to this compromised agreement and was signed by the Governor and it is quoted in the Appendix to our brief.

Potter Stewart:

Some 200 miles out to sea.

Richard Upton:

That was the next section of that chapter, Your Honor.

William H. Rehnquist:

When you entered into the compromised agreement, I take it that those who were acting on behalf of the State of New Hampshire felt it was consistent with that first act of the New Hampshire

Richard Upton:

We felt that it could only be made consistent your Honor, if this Court approved it and adopted it and made it a judgment of this Court and that case it came within the exception of the statute.

William H. Rehnquist:

And, of course you do not know whether this Court will approve it or adopt it until you have submitted it to the Master, he in turn has submitted to the Court and this Court has decided one way or the other, I suppose.

Richard Upton:

That is correct your Honor, the matter rests in the hands of this Court at this moment, because you do have the power, I believe if you find that as a law to enter the consent decree.

William H. Rehnquist:

Well, in a sense, it is like a stipulation, we settle it, personal entry claim where two lawyers get together and agree and they have to submit it to the Court.

So, the matter remains open, until the judge actually approves the stipulation.

Richard Upton:

That is true, although in the case of a personal entry case, the parties have the power to make such a settlement without the intervention of the Court.

They could just …

(Inaudible)

Richard Upton:

In that case, I have to confess it requires the approval of the Court.

William J. Brennan, Jr.:

Like my brother Rehnquist just suggested — it is a public interest — the court just had the problem —

Richard Upton:

This problem always exists and I suppose it exists in a criminal case, where a man pleads guilty and counsel attempted to work out an arrangement as to what the recommendations will be for Senates.

It is placed before the Court.

The Court may or may not accept it.

It may impose a harsher penalty or a lesser penalty, but the matter is in the hands of the Court.

William H. Rehnquist:

Well, is not there some contract, law, theory that would say neither party has a right to repudiate it during the reasonable time that is taken to go through the steps necessary for judicial approval?

Richard Upton:

Your Honor, I take this to be the position regarding contract that if this is not to become a judgment of this Court, then it must be a compact, which requires the consent of the United States Congress in order to be binding on the States, because this Court is several times held the resolution of boundary disputes between states falls within the Compact Clause.

If the case is not settled by a judgment of this Court, that would be my answer.

This was frankly a compromise, on which we needed the Court’s approval, but at the time we did this, we are unaware of what your Honor’s are going to hold in New York versus Vermont or Vermont versus New York, that decision came down in the summer, at the time these negotiations were going on.

Now, we compromised in these ways.

The thalweg versus the geographical middle, New Hampshire accepted the thalweg and then we further compromised on thalweg by deciding we would agree, it was a straight line.

When in fact of course, it cannot be physically, but for convenience of law enforcement, we agreed that it was the thalweg and that was it.

Secondly, the mouth of the harbor for determining the point, where the thalweg ended, we agreed was a line going from Odion’s point to a submerged rock called, Kitsch rock, which has a whistling boy on it.

This again, was an arbitrary compromise administrative convenience, but it has no relation to law that applies to tell where the harbor’s mouth is.

And finally, we agreed that the line across the open sea would be a straight line, rather than a curved line, as sought by Maine, based on the United States geological survey maps.

And here, the Master has found that we adopted correct law, the straight line is proper under the special circumstances exception of the Geneva Convention.

Now, when the terms of this settlement were proposed to the Master, he told us now he now doubted that he had the power to accept it.

Although he had earlier urged just to settle.

Potter Stewart:

Because of the intervening decision of Vermont against New York.

Richard Upton:

Yes, your Honor.

And, we held a hearing on that, it appeared likely that he might rule to accept it, he might accept it with modifications, he might reject it and call for an evidentiary hearing in full or he might proceed to decide the case, either for New Hampshire or for Maine.

Richard Upton:

On the record we made far, because when we knew about Vermont versus New York we tried to repair the situation by presenting the Master with a stipulation for an evidentiary record, which is reported in full on pages 2 and 3 of the record.

So, he would have something by which to judge the lawfulness and reasonableness of the stipulation.

Now, he recommended rejection, he thought we were presenting him with a fait accompli which he would merely rubber stamp and which did not call for the exercise of the judicial power, that is applying established principles of law to facts, which either have been stipulated to or settled by the evidence.

He felt that this was not kind of a thing.

He had been presented with something that was not judicial in nature and not proper basis for a judgment.

He then, found that the record we have stipulated to before him, as a basis for deciding the case was sufficient for him to make a decision on the merits without further hearings.

And, he then proceeded to decide, as my brother Bradley has outlined in his opening statement.

Now, we believe that the Master was correct in adopting geographic middle as opposed to thalweg.

We compromised that position in the beginning, in order to obtain what we thought was doubtful that is a straight line across the open sea, which we felt was very important to us.

Potter Stewart:

But, Mr. Upton looking at the consent decree line so called which appears in the appendix to the response of the State of Maine to New Hampshire’s exceptions.

What accounts for line C, E, F, if you have that?

What accounts for the segment on the line CE?

Why was it not drawn from C, which is the thalweg middle all the way to F?

Richard Upton:

E, you Honor was the point we agreed on in the consent decree as being the mouth of the harbor and the end of the thalweg.

Potter Stewart:

Then, what is C doing there?

Richard Upton:

I believe my brother means that C is the line drawn by the Master.

C to D, yes sir.

Potter Stewart:

Yes, but if you look at the appendix, the key of the appendix up in the upper left hand corner.

The consent decree line is denominated as C, E, F.

Richard Upton:

That is right your Honor and the reason that …

Potter Stewart:

Not just CF.

Richard Upton:

CD, as the line found by the Masters.

CEF is the consent decree and we extended the thalweg out to E, which is a point we agreed in the stipulation would be the mouth of the Harbor and then we took off across the C.

Potter Stewart:

I see, so the E is the thalweg, as far as it goes out in the open sea.

Richard Upton:

Yes your Honor, and then we stipulated that would be the mouth of the Harbor by arbitrarily drawing a line from Odion’s point across the Kitsch Rock Whistling Boy that location.

Warren E. Burger:

Mr. Upton, how would these areas be identified under the consent decree?

Richard Upton:

As we go out to C and this is where the biggest trouble of enforcement is, your Honor.

We would ask Maine to participate with us in putting range lights on New Castle Island, one behind the others lined up with this line.

And, we have asked the Court to — Justice Clark has recommended to the Court that a Commissioner be appointed to mark the line, when the report becomes final.

This has been done in most of the boundary cases.

Richard Upton:

It was done in Vermont versus New Hampshire after the Court had adopted the law and decided how it applied.

A Commissioner was appointed to mark points on land with the agreement with States and we think this would be appropriate here.

Byron R. White:

This function would have some finite limits in the sense that when he finished marking that would be the end of his job.

Richard Upton:

Yes, your Honor.

Byron R. White:

It would then require any on-going judicial supervision or enforcement.

Richard Upton:

He would have hardly any discretions, as I see it.

I agree with Your Honor’s suggestion

Potter Stewart:

But, for the point of the lobster fishermen, there would be range lights if they could —

Richard Upton:

Those will have much the same effect as the lights on range that the lobster men fought so hard to have.

That is two light houses, one behind the other.

Potter Stewart:

Existing light house just way back.

Richard Upton:

They go way back in history.

Potter Stewart:

And, the claim is that as a matter of practice that has been practically recognized boundary over …

Richard Upton:

That is what the claim is.

So, we ended in to the compromise, realizing that it would have to be approved.

We had Vermont versus New York, we had the stipulated record, we have the Master moving be rejected and we had detailed findings by him that it was the geographic middle rather than the thalweg.

And, we support that ruling, because in reviewing the record of the boundary Commissioners, we find that when they referred to the Merrimack River on the south they always used the words “Middle of the Channel,” or as when they refer to the Piscataqua River on the north they used “Middle of the River,” and New Hampshire Commissioners talked about losing half the river to Maine, then Massachusetts and the Massachusetts Commissioner said that the line was always been in the middle of the river, because those islands nearest to each state have always been taxed by each state.

And, we say that language speaks in terms of geographic middle just as in the case of Texas versus Louisiana, where Your Honors felt that the intent of Congress was directed to the middle of the river, geographic middle rather than the thalweg.

And, we feel this case is equally as strong.

Thalweg was not in vogue, as a tool of interpretation in 1740.

Also, we went then under British Colonial rule, where there was freedom of navigation to all British subjects, including colonists.

There was obstruction freedom of navigation, which is one of the things that makes thalweg applicable.

I have not touched on the lights on range argument of the Amicus Curiae because there is no exception before the Court raising that question, but if the Court is interested in considering it, there is an apt quotation in United States versus Louisiana 394 US at page 76.

“The unauthorized acts of private citizens could generally not support a claim of historic title.”

And so in conclusion, we submit the Master’s report should be confirmed with the exception that the Court should hold it was error to use these low tide elevations.

William J. Brennan, Jr.:

We would agree with you.

Would that mean in respect to relocating the geographic middle?

Richard Upton:

I believe on that issue, the case should be referred back for findings.

William H. Rehnquist:

How do you think it would affect it, how about for example the center point of the mouth of the harbor, where would it move to?

How far it would move do you know?

Richard Upton:

It makes a difference of 350 yards, Your Honor, whichever view was adopted and …

Potter Stewart:

It links to your exceptions of brief right?

Richard Upton:

We would gain or lose 300 acres, depending on the result.

Potter Stewart:

There is a long way you were telling me about it.

Richard Upton:

Yes, your Honor.

John Paul Stevens:

Just one more question before you sit down.

As I understand your brief, you in part argue that the Master did not adequately consider the low tide elevation point.

Do you make arguments before us that you did not make before him?

Did he have the same chance to praise these issues you are asking us to do?

Richard Upton:

He brought this up for the first time and in his report, this was not argued by the parties or suggested by him that he might consider it.

John Paul Stevens:

Did you take exception to the procedure you followed.

Richard Upton:

No I do not object, I object to his ruling.

John Paul Stevens:

My brother Stewart’s ruling.

Richard Upton:

They do, certainly.

John Paul Stevens:

You do not take (Inaudible)

Richard Upton:

I do not object to it, because I think we are protected and I think the Court can refer it back to a hearing at this one point if it so decides.

Edward Bradley:

I would like to refer briefly to the questions that were raised with respect to whether a factual determination is required in determining whether these low tide elevations, the Special Master used qualified for the test under the Geneva Convention.

The arguments that my brother Upton has made are that this is not an island, a low tide elevation within the meaning of island part of the Maine land.

These kinds of questions have given rise to substantial evidentiary hearings in cases in Louisiana.

An opportunity which the State of Maine or the State of New Hampshire had, because of the way this came up to this Court.

This is a problem in another regard.

The Special Master, we believe has seriously prejudiced a right of the State of Maine that exists outside the issues in this dispute.

Thus, the Master found it was essential to determine where the location of inland waters was, because he felt this Court in US may determine that there was no ownership in the intervening area between Gosport Harbor and Piscataqua.

But, we believe that this is inconsistent with the reservation of jurisdiction, which this Court has exercised at 421 US 958 in granting the motion of the United States government to reserve its jurisdiction to determine questions just to this nature.

State of Maine has an historic inland water claim and other coastline claims, which would give its sovereignty over the area between Piscatqua Harbor and Gosport Harbor and we believe that we should have the opportunity to be permitted to apply the criteria that the Courts announced in dealing with similar claims States of Alaska, Florida and Louisiana in just last term.

The Master’s determination has precluded us from doing that and we do not even know he was doing it, until a report came out.

We did not in choosing thalweg, in choosing straight line portion of the boundary think that we needed to determine the extent of inland waters, which is why the questions, which the Master has focused so strongly on, with respect to the locations of inland water and geographic middle are almost irrelevant to the determinations that went in to the consent decree.

All we needed to do was to decide thalweg was appropriate in the river in the Harbor and then determine where the line ended.

That did not need any great application of legal principles, because it was a factual question.

The channel gradually disappeared as it hit the open ocean.

Edward Bradley:

We did not need to determine the mouth of the river and I submit that we did not.

All we did was determine a reasonable place for the thalweg to end without having any requirement for determining inland waters.

We believe we have been prejudiced by the determination of the Master and that if you are going to use a concept of inland waters that we ought to have our opportunity in this Court.

These boundaries are very serious things to the States.

We are going to have to live with them for a long time.

We believe we deserved the opportunity to have a full determination of our facts and evidence before the Courts merely accepts the report of the Special Master.

Thank you.

William J. Brennan, Jr.:

If we were to agree on geographic middle, are you suggesting that on this record that would be inappropriate without Maine having a further opportunity, to have a determination of inland waters?

Edward Bradley:

Your Honor, we never had the opportunity …

William J. Brennan, Jr.:

Is that what you are arguing?

Edward Bradley:

I am arguing that we should have a determination of hearing on geographic middle, on inland waters and also, the rejection of thalweg.

William J. Brennan, Jr.:

What relevance this determination of inland waters have on the determination of geographic middle?

Edward Bradley:

The Master felt that he had to determine the location of the geographic middle by a closing line across inland waters to determine the end point of the straight line terminates to the boundary.

William J. Brennan, Jr.:

You said, you might be able to persuade them to the contrary as to the closing line, which then would have an effect on the location of the geographic middle?

Edward Bradley:

No, I am only saying that if you choose the principles we adopted in our judgment for consent decree, it is unnecessary to determine the extent of inland waters.

That can be left an open question for determination …

Byron R. White:

I will disagree with you on that.

Edward Bradley:

If you disagree with us …

Byron R. White:

On the principles on which you have based the consent decree.

Edward Bradley:

Then, if you do, Your Honor, I believe that you should send it back to the Special Master for determination.

So, we can have a full opportunity to develop them.

We have not had that opportunity up to this point.

William J. Brennan, Jr.:

What is it you wanted to know?

Edward Bradley:

I have suggested …

William J. Brennan, Jr.:

We disagree with the principles on which the consent agreement.

Edward Bradley:

I am suggesting your Honor that you do not have the proper development of the case at this point.

To determine whether you can disagree with us, I have suggested two things today that were not even mentioned before the Special Master.

The question of whether contemporaneous charter in Rhode Island has any effect on the usage of thalweg.

I suggested that the Master seriously over estimated the concept of the half when it was used in the petition for appeal.

I believe there are hundreds of other items …

Byron R. White:

(Inaudible) for the Special Master, did you?

Edward Bradley:

Yes we did, with respect to the …

Byron R. White:

And, I suppose the purpose for stipulating it was to help him in determining whether he should accept or reject your consent decree.

Edward Bradley:

Just the concept of thalweg your Honor, I had nothing to do with the concept that he ultimately adopted and we believe that if he is going to not only reject our consent decree, but adopt an entirely new principle that we ought to have an opportunity to present our case with respect to whether that is appropriate or not.

William H. Rehnquist:

You said that the only trial you had was basically a truncated one devoted to the authorization for the consent decree, rather than a fight on the merits.

Edward Bradley:

Yes, your Honor.

We had no fight on the merits and no opportunity and it is going to be hard enough to enforce the lines that the Masters adopted.

It is going to be extremely hard, if we feel the people of the State of Maine feel that they have not have the proper opportunity to present their position to the Court.

Byron R. White:

You do not think that there is enough on the record for the Master to have not only rejected the consent decree and do have said, “I will not accept the thalweg as the principle for division.”

But to go on and say that the proper principle is the middle of the river.

Edward Bradley:

Yes, your honor.

Thurgood Marshall:

(Inaudible) evidence is used or argued?

Edward Bradley:

No sir, I want to go back through the documents.

I want to go back through the usage.

I want to have an …

Thurgood Marshall:

My brother Brennan tried to get from you what you wanted to present, as of now.

Edward Bradley:

As of right now, I do not have a full — we have not develop the cases entirely as it should have been to this point.

We are really at the stage now where we are no more than at a preliminary trial stage, because the way the case developed below you.

You do not have a full development of any of the facts or issues of this case.

John Paul Stevens:

But, Mr. Bradley, let me understand.

You are arguing that if you had a full opportunity you might be able to persuade him that he should not adopt the geographic middle principle.

Are you also arguing that if he does adopt the geographic middle principle, it might be placed elsewhere?

Edward Bradley:

No, your Honor.

I believe that if he does adopt the geographic middle that the only …

John Paul Stevens:

He has the right line.

Edward Bradley:

He has the right line.

Thank you very much.

Warren E. Burger:

Thank you.

The case is submitted.