United States v. California – Oral Argument – December 07, 1964

Media for United States v. California

Audio Transcription for Oral Argument – December 08, 1964 in United States v. California

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Earl Warren:

Number 5 Original, the United States of America versus the State of California.

Hugo L. Black:

Number 5 Original.

Mr. Keatinge?

Richard H. Keatinge:

Yes, sir.

Mr. Justice Black, may it please the Court.

The argument of the State of California this morning will be divided into nine segments.

First, the statement of the case, Second, the statement of California’s position, Thirdly, a brief illustration by the use of maps and pictures of that position, Fourth, the discussion of the basic dispute between the United States Government and the State of California, Five, the discussion of the baseline involved, Six, the application of historic criteria to the California coast, Seven, the application of U.S. criteria to the California coast, Eight, the doctrine of historic waters as applied to the California coast, And finally, a brief discussion of certain subsidiary matters.

Turning first to the statement of the case and I might add also before I start, there will be certain references that I would make to the briefs in this matter.

The opening brief is divided — of the State of California is divided into two parts.

They are both blue briefs.

One — the first part is the brief itself the second part is an appendix.

The closing brief is a green brief.

The principal references I will make to the extent, brief references are made would be to these two briefs.

In 1947 in this case this Court ruled in decree that California was not the owner of the submerged lands lying seaward of the ordinary low water mark and outside of the inland waters of the State and that the United States was possessed a paramount of rights in and full dominion and power over those submerged lands including minerals.

Pursuant to the reserved jurisdiction of the Court, a Special Master was appointed to aid the Court in ascertaining the low water mark and the outer limits of the inland waters along several segments of the California coast.

In the final reference, the Special Master was asked to submit his recommended answers as to three questions dealing with seven specified coastal segments.

The questions were as follows, One, what is the status inland waters or open sea are particular channels and other water areas between the mainland and offshore islands and if inland waters then by what criteria are the inland water limits of any such channel or other water areas to be determined?

Two, are particular segments in back bays or harbors constituting inland waters and from what landmarks of the lines marking the seaward limits of bays, harbors, rivers, and other inland waters to be drawn?

And three, by what criteria did the ordinary low water mark in coast of California to be ascertained?

After holding hearings the Special Master filed his Report in the fall of 1952 wherein he concluded in general that none of the said seven segments under consideration constituted inland waters or bays although the Master did hold that areas behind artificial harbor were constituted inland waters.

Both parties filed exceptions to this report.

The case then remained dormant until 1963.

In 1950, —

William O. Douglas:

Why is — why is that — how do they keep going with it?

Richard H. Keatinge:

I believe that the reason Mr. Justice Douglas was that the Congress at that time was considering the Submerged Lands Act.

William O. Douglas:

I see.

Byron R. White:

Now, that —

William O. Douglas:

The Special Master is deceased, isn’t he?

Richard H. Keatinge:

I — yes, we were informed this morning Justice Douglas that he is deceased.

William J. Brennan, Jr.:

But what about the Submerged Lands Act, how far that legislation was addressed at the time that the Special Master continued —

Richard H. Keatinge:

It was not passed until 1953.

The Master’s Report was rendered in 1952.

William J. Brennan, Jr.:

But was it under consideration?

Richard H. Keatinge:

Yes, it was sir.

There were all a series of quick claim —

Richard H. Keatinge:

That is correct sir.

It started in ‘45 and finally culminated in ’53.

Richard H. Keatinge:

That is correct sir.

After this Court’s decision in the initial California case in 1947 the consideration of this matter by Congress commenced.

William J. Brennan, Jr.:

And Congress — did Congress have a — drafted this Report before?

Richard H. Keatinge:

Yes it did sir and there will be certain references that we will make in the quotes to its use or non-use of the criteria which were set up by the Special Master.

Arthur J. Goldberg:

Congress passed the (Inaudible)

Richard H. Keatinge:

This — this Justice Goldberg we believe is a question that the United States should answer.

We did not — the State of California did not reactivate this case.

This case was reactivated by a motion filed by the United States.

In 1953 —

Potter Stewart:

Well, I suppose — I suppose it was your position that the Submerged Lands Act legislation in 1953 made the Master’s Report obsolete.

Richard H. Keatinge:

Exactly.

Potter Stewart:

That’s your position, isn’t it?

Richard H. Keatinge:

Exactly, Justice Stewart.

That was our position.

Our position and our answer to the motion was that the case was moot and our position today is that criteria which the Special Master adopted in his Report are totally inapplicable of the situation as it now presents itself, in view of the changed legal situation and the view of this Court’s position in the United States versus Louisiana which is 363 U.S. 1.

Potter Stewart:

Certainly, the 1953 legislation explicitly overruled the 1947 decision in this case.

Richard H. Keatinge:

Insofar as it was applicable —

Potter Stewart:

And Master’s Report was supplemental to that 1947 decision.

Richard H. Keatinge:

This is correct sir.

With the — the Master was appointed pursuant to orders of this Court to carry out in effect the decree of the Court in the 1947 first California case.

Hugo L. Black:

(Inaudible)

Richard H. Keatinge:

Yes, sir.

And I proposed to discuss that in detail.

Hugo L. Black:

What do you — if it wanted, as you said here, what do you suggest should be done if it is obsolete?

Richard H. Keatinge:

We suggest this Your Honor.

We suggest that there is enough presently in the record, and presently in the law, and presently in the prior decisions of this Court, and particularly the decisions of this Court in the United States versus Louisiana 363 U.S. 1 for this Court can make a decision with respect to the matter of California’s bays.

This is one segment of the matter I will discuss this morning.

We suggest that with respect to what we call our overall unit area which I will identify in a minute in the Santa Barbara channel that the criteria which were used by the Master are so different and the evidence this — the appraisal of the evidence so different then is now required by the present status of the law that the matter should be referred back to a new master for further consideration.

Just to comment on that a little bit further, the Master took the position that much of the evidence referred by California before the Master was not relevant because considerations of state department practice in United States Foreign Relations were determinative of the result in that case.

This Court, we believe, has found otherwise in the case of United States versus Louisiana and has found that the matter was a domestic matter and that the matter should be governed by the question of the division of the continental seabed between the nation and the State as it’s worded in that case and that being a domestic matter, a different criteria must be applied and different factual material is therefore relevant and I think an examination of the Master’s Report itself will indicate that this is true.

Hugo L. Black:

Is it your view then that assuming — assuming that one should agree with you that the major part of the Master’s Report was no longer applicable to the issues remaining.

Is it your view that, now I gather it might be, that the proper course to follow would be to appoint another Master and have him consider it anew —

Richard H. Keatinge:

Yes, sir.

Hugo L. Black:

— the issues after they are raised — after they are fixed?

Richard H. Keatinge:

Yes, sir.

We believe that this Court can be of considerable assistance to such a Master and in terms of ruling of the basic premises which we believe should now be applied to the law as it now stands subsequent to the facets of the Submerged Lands Act and subsequent to this Court’s decision in U.S. versus Louisiana, 363 U.S. 1.

Hugo L. Black:

Of course, I suppose that we would have fixed the boundaries finally different to the way Congress ultimately decided it more than fix so far as the United States is concerned that it could surrender back whatever land it wanted to as it did before.

Richard H. Keatinge:

Well, I think our position is that the United States under the Submerged Lands Act has had granted to it all of the power which it needs in terms of its foreign relations power.

Section 6 of the Act retains the areas of paramount rights which this Court stated in 1947 in the first California case, the Federal Government had in the areas of foreign relations, foreign commerce, navigation and so on.

Now, I believe this Court took the position of the United States versus Louisiana that all we are dealing with here is the division of the seabed and the subsoil of the continental shelf between the nation and the state.

There’s no controversy between the Federal Government and ourselves to the fact that the continental shelf as a whole has been claimed by the United States as question of dividing that shelf between the nation and the state.

(Inaudible) to decide this case.

Richard H. Keatinge:

No, sir.

We feel that one —

We are dealing there with seaward boundary and here the question is where you measure whatever the three-mile granted — the three-mile grant in this case is going to be — and that’s the question we didn’t touch on.

Richard H. Keatinge:

This is correct sir.

This question is specifically I believe discussed and you mentioned —

I’m saying that the principles that were established in that page may not be germane but certainly it did not decide that —

Richard H. Keatinge:

No, sir.

In fact, I think it’s in Footnote 108 and page 66 of your opinion.

In that case, you specifically avoided fixing the coastline for Louisiana or for any other state.

In 1953, Congress passed the Submerged Lands Act which in general restored to the coastal States of the submerged lands lying within their boundaries subject to specific limitations.

In the same year, Congress enacted the Outer Continental Shelf Lands Act which provided the development by the Federal Government of that portion of the continental shelf lying seaward of the area restored to the States.

Richard H. Keatinge:

The entire continental shelf of course had previously by the Truman Proclamation of 1945 been declared to have been up to — appertain to and then the subject of the jurisdiction of the United States.

In 1963, the plaintiff pursuant to an order in this Court filed a supplement complaint which noted the passage of the Submerged Lands Act in 1953 and which sought a decree declaring the extent of the ownership of the United States in the continental shelf.

Additionally, the Government asked the court to rule on the exceptions to the Special Master’s Report previously filed by the parties.

Last December, this Court entered an order allowing the parties to file additional exceptions and briefs in support thereof.

This has been done and we’re here today to argue the original exceptions and also the additional exceptions which were filed last — earlier this year.

California’s basic position is as follows, It is a State of California’s main contention of the Submerged Lands Act has completely destroyed the basic premise upon which the Special Master based his Report by converting the nature of this case from one of paramount rights and foreign relations of United States to an interpretation of the intent of Congress in restoring to the States the submerged lands within their historic boundaries.

The Special Master as well as the parties during the proceedings prior to1953 believed and I quote from the Report of the Master at page 6, “That the determination of the demarcation line at which inland waters end and the marginal sea begins also determine the exterior limit of the marginal belt, and therefore involved a question of a territorial jurisdiction of the United States as against foreign nations i.e. a question of external sovereignty.”

With the passage of the Submerged Lands Act this determination, we believe, became one of domestic concern exclusively as was pointed out in 1960 Louisiana decision of this Court.

Because of this fundamental change in the nature of the case, California believes that the Report of the Special Master in general is no longer applicable to this controversy and this Court must re-determine the answers to the questions posed to the Special Master in light of intent of Congress.

The Federal Government, however, despite the Louisiana decision and its own statements that the apportionment of the sea beds and subsoil of the continental shelf between the nation and the States is a purely domestic matter, continues to characterize this case as one involving the foreign policy of the United States.

Before delving into the intent of Congress, we would like to illustrate the positions of the parties.

We have prepared a series of charts and photographs, individual copies of which have been presented to each member of the Court which portray the segments of the California coast and dispute before the Special Master but with the claims of the party as changed by the Submerged Lands Act.

The first area we proposed to discuss or to illustrate briefly is the area of bays.

One segment of bays I should mention we do not have a map, for that is the Crescent City segment that we believe that that particular area of map in which appears in our Report has now been primarily disposed of because of the addition of the three-mile limit.

The first chart shows Monterey Bay which is one of the three bays discussed.

(Inaudible)

Richard H. Keatinge:

The first chart and the first picture, the first photograph and I should state to this Court that these photographs are intended to be as nearly accurate reproductions as possible.

We do not claim and I do not wish the Court to understand that we claim that they are entirely accurate scale models but they are as accurate as we can make them.

The dimensions, however as they appear on the charts themselves are completely accurate.

The first chart shows Monterey Bay, the headlands of Monterey Bay are at Point Santa Cruz, the pointer here and at Point Pinos.

The green line is the line contended for by the Federal Government as being the outer limit of inland waters.

The red line joining the head lands we contend is the baseline from which the inland water should be or the three-mile limit should be measured.

The other red line is the three-mile distance.

The distance between these two particular head lands is 19.24 miles and this picture is looking south from Santa Cruz toward Monterey.

Potter Stewart:

The — the green line depicts what the Government says should be the line and is that just three miles from the shoreline about —

Richard H. Keatinge:

Three miles from what they would call ordinary low water mark.

Yes, sir.

Potter Stewart:

And that’s just three miles from the ordinary low — water mark.

Richard H. Keatinge:

That’s correct, sir, and it follows the sinuosities of the case of the coast.

Potter Stewart:

Well, I thought the Government at least for some purposes accepted a 10-mile bay.

Potter Stewart:

Well, they don’t accept any bay unless — unless it’s less than 10 miles between the headlands, is that it?

Richard H. Keatinge:

Yes, their position is if the foreign policy of the United States in 1953 was governing and at that time it was the position of the State Department that bays having a line of more than 10 miles across were to be considered open water and inland waters.

Potter Stewart:

Right.

So this — so this green line represents simply a three miles out for the ordinary low water mark.

Richard H. Keatinge:

That is correct.

Potter Stewart:

I see.

William J. Brennan, Jr.:

And here the red line in California’s claim is not based as I understand it under the definition of a bay whether on 10-mile basis or otherwise but on the position that everything within that is inland waters?

Richard H. Keatinge:

Our position is that if it is inland waters or put it another way that it is historic waters both as a matter of international law and as a matter of two California cases which we cited in our brief, Ocean Industries versus Greene and Ocean Industries versus the Superior Court which is a California Supreme Court case.

William J. Brennan, Jr.:

In other words, you measured three miles seaward of the dotted line, is that it?

Richard H. Keatinge:

Now, this three miles of this line here, the map 42.

William J. Brennan, Jr.:

That — that being the outer limit of —

Richard H. Keatinge:

This is our position is the outer limit of inland waters.

William J. Brennan, Jr.:

Right.

And you go three miles seaward of that?

Richard H. Keatinge:

That is correct sir.

Potter Stewart:

But because the dotted line is — is imaginary line between the two points of the headlands, is that right?

Richard H. Keatinge:

That is correct.

And it’s our position that since in our contention these are inland waters and since the Submerged Lands Act, the coastline is measured from the ordinary low water mark where it cuts the open sea and from the outer limit of inland waters —

Potter Stewart:

Right.

Richard H. Keatinge:

— and this is the proper line to be drawn.

And we also contend to supplement that with the history of California so indicate that this bay is to be considered inland waters and that these two lawsuits confirm this position — two cases confirm the position.

Tom C. Clark:

Mr. Keatinge, that white mass is sea.

Richard H. Keatinge:

This white mass is all sea, Yes, sir.

Potter Stewart:

It’s a little confusing at first because of the chart and the photograph are — well, the photographs change now but they were reversed?

Richard H. Keatinge:

Yes.

That is correct.

Because from the photograph you’re looking down from here towards here.

Potter Stewart:

Right.

Richard H. Keatinge:

That’s looking from here to here looking down.

This is the second segment considered by the Special Master.

Richard H. Keatinge:

Actually, there are two segments involved here.

These were considered by the Special Master, one involving the internal portion of San Pedro Bay.

The other involving the determination of the point of which the larger portion of the bay might be fixed.

I’ll explain that somewhat greater detail in a moment and since the passage of the Submerged Lands Act this is not a great deal of difference between the positions of the State of California and the Federal Government as to this bay.

The Submerged Lands Act provides that with respect to that the outermost harbor works are to be considered as the fixing — in any event fixing the limit, the minimum limit of inland waters and this is the breakwater here completely encloses this harbor and the Federal Government now concedes that the inland waters of the State come out at least this far.

That means that the three-mile limit is formed by this green line which I’m pointing here.

It’s the contention of California that actually will historically under the cases that we have cited, the line of San Pedro Bay should run from Point Fermin to Point Lasuen this is the case of People versus Carrillo which is cited in our briefs, the determination by the United States District Court that this area, this entire area was then this line here is a bay and is part of the territory of California under its Constitution and under its history.

That would bring the three-mile limit out to approximately this line here.

The difference between the two is this square or this triangular area up here.

This is looking northward from Newport Beach to Point Fermin.

Point Lasuen which to the point intended for by the State of California is approximately here and the line would go across roughly across there.

Byron R. White:

Now, what is California’s claim are you relying on the Carrillo case?

Richard H. Keatinge:

Yes, sir.

Byron R. White:

And what about that red line?

Richard H. Keatinge:

The red line was a line originally contended for by California during the course of the hearings before the Special Master.

Byron R. White:

You’ve abandoned that now?

Richard H. Keatinge:

It is our position that the correct line is the line Point Lasuen

Byron R. White:

So you’ve abandoned the red line.

Richard H. Keatinge:

Yes, sir.

But we merely put it inhere to avoid confusion because it had been in fact plain in the proceeding before the Special Master.

It’s a difference factually for drawing a line from here over here and on here over there.

Byron R. White:

But you have given that up?

Richard H. Keatinge:

Yes, sir.

Hugo L. Black:

How much is that (Inaudible) water?

Richard H. Keatinge:

How much water area?

Hugo L. Black:

Yes.

Richard H. Keatinge:

I’ll try and give you that figure in a minute.

Hugo L. Black:

No, just approximate.

Considerably more isn’t it with California?

Richard H. Keatinge:

Well, the difference between what California concedes and what we claim is this area in here.

Richard H. Keatinge:

We will try to ascertain it for you to give you the exact figure.

Hugo L. Black:

Well, that’s alright.

What is the basis?

Richard H. Keatinge:

Approximately about 20,000 acres as I’m told is the difference.

Is that correct?

About 6,000 acres.

Richard H. Keatinge:

About 6,000 acres is correct.

Hugo L. Black:

What is the legal basis, which contribute to abandon the old and adopt the new?

Richard H. Keatinge:

The legal basis is that point — the location of Point Lasuen is originally fixed by Captain Vancouver who cruised up and down the California Coast in 1793.

Old California history makes it a little bit unclear as to exactly where that point was located.

However, Judge Stevens of the Southern District of California considered this matter in the Carrillo case.

He fixed the point at Point Lasuen which is in (Inaudible) below Huntington Beach.

We’re accepting that position on the decision of Judge Stevens for the purpose of this case.

Tom C. Clark:

You keep referring to the historic — historic.

Richard H. Keatinge:

Yes, sir.

Tom C. Clark:

What is the legal basis for that being the criteria?

Richard H. Keatinge:

Well, our Constitution —

Tom C. Clark:

Historic boundaries.

Richard H. Keatinge:

Historic boundaries as defined in the Submerged Lands Act.

Tom C. Clark:

You’re depending on this.

That’s what I was getting at.

You’re depending on the Submerged Lands Act?

Richard H. Keatinge:

Yes, sir.

Tom C. Clark:

For that?

Richard H. Keatinge:

Yes, sir.

And it’s definition of historic — its definition of historic boundary and what we believe the proper interpretation of that Act to be as applied to the situation of California’s bays.

Byron R. White:

With this historic — the Act not only is thinking of the outer boundaries of the territorial waters in terms historical boundaries but historical boundary — history should be resorted to determine the beginning.

Richard H. Keatinge:

That is correct sir.

We feel that any other interpretation —

Byron R. White:

And outer land to determine the outer limits of inland water.

Richard H. Keatinge:

That is correct sir.

Because we say this and perhaps I can illustrate by using this figure.

Once you determine that this — let us say you determine that this line should outer limit of inland waters then you have determined the outer limited three-mile bill as well.

In other words, one automatically follows from the other and we believe that the proper interpretation of the entire Act requires that the Act be construed in terms of it’s purposes to restore to the state, their historic boundaries and to construe the Act in domestic terms not in terms of United States Foreign Policy.

Byron R. White:

But you — you think then isn’t there some suggestion that the idea of historic boundaries was in Congress’ mind because of the situation in the Gulf of Mexico and then they had in mind the historical — some historic basis for extending beyond some three-mile limit in the Gulf of Mexico without anything, is there some evidence they have in mind ascertaining the end of the inland waters based on the historical?

Richard H. Keatinge:

We believe that there was and I will read some quotations as soon as we’re through with maps here which I believe explaining what we think is the intent of Congress with respect to how inland waters are to be considered and where the line is to be drawn.

Potter Stewart:

The inner green dotted line, the one closest to the shoreline is a man-made breakwater.

Richard H. Keatinge:

That is a man-made breakwater, sir.

Potter Stewart:

And it was there before the Master’s Report so there’s no —

Richard H. Keatinge:

Yes, sir.

Potter Stewart:

No issue as to what?

Richard H. Keatinge:

There’s no issue as to whether it’s a subsequent —

Potter Stewart:

Right.

Richard H. Keatinge:

— created them which is one of the minor issues —

Potter Stewart:

And the Government does accept that and puts its claim there for three miles out from the — from that?

Richard H. Keatinge:

That is correct sir.

This is Santa Monica Bay which falls north of San Pedro Bay, the points are — which enclosed — we claimed enclosed the bay are Point Dume and Point Vicente.

We have drawn a line across the headlands here, this is 25.2 miles long.

The green line again represents the position of the United States with respect to the limit of inland waters.

William J. Brennan, Jr.:

Now, why do you draw that point from Point Dume to Point Vicente?

Richard H. Keatinge:

We again claim that this is a constitutional bay under the definition of California’s Constitution including all bays within its territory of California.

William J. Brennan, Jr.:

So, this is history again is it?

Richard H. Keatinge:

It’s both Constitution and history, Your Honor.

William J. Brennan, Jr.:

That is California Constitution?

Richard H. Keatinge:

California Constitution also its history in the sense that we claim as in the case that we believe the cases show this is People versus Stralla cited in our briefs that this may also is an historic bay having a long history going back to the Spanish and Mexican period.

Potter Stewart:

That’s the line between headlands is more than 24 miles, isn’t it?

Richard H. Keatinge:

That is correct.

In this case, it is 25.2 miles.

It is possible to bring the line down to I think about just about 24 by drawing the line from Point Dume to Palos Verdes Point —

Potter Stewart:

Yes.

Richard H. Keatinge:

— which was slightly north.

The reason we have used the particular line we have is that because this is the line that was used by the Supreme Court of the State of California in considering this case.

Potter Stewart:

In that — in the decision you spoke of?

Richard H. Keatinge:

Yes, sir.

Potter Stewart:

You — how much do you rely on this new 24-mile convention?

Richard H. Keatinge:

We — our basic position Justice Stewart is that the 24-mile limit does not have any application at all.

Potter Stewart:

That’s right.

Richard H. Keatinge:

So that — if —

Potter Stewart:

So that is a matter of external policy of international relation?

Richard H. Keatinge:

That is correct.

That it may be perfectly proper for the United States to use in connection with fixing his relations with other — with four nations.

Potter Stewart:

Right.

Richard H. Keatinge:

But then in terms of fixing the line for domestic purposes, which we claim is the test under this situation we have here, that it has no relevance.

Potter Stewart:

That was my understanding.

Byron R. White:

What if you’re wrong on your historic side?

Richard H. Keatinge:

If we’re — if we are wrong in our historic as far as the historic story itself is concerned, it’s still our position that under California’s Constitution, its historic boundaries which the basic position of Congress in determining the limit of inland.

We contend that fixing the limit of inland waters, we still believe that this will be considered a bay.

Byron R. White:

But what if you’re wrong on that?

Richard H. Keatinge:

If we are wrong on that then we come down to the final position and this is the last and I want to make it clear and we consider this as a third string to our ball which we consider we do not have to reach in view of this Court’s decision in U.S. versus Louisiana.

But assuming that we do, it would still be our position that Congress intended to do equity here, that the purpose was to restore the States and the expectations that they had at that time that the First California case was decided.

And then implying those tests — those rules that the United States should do the same equity of the State of California or do the same thing to the States that it will do now before our nation which is to draw the 24-mile limit — 24-mile line but I want to make it absolutely clear, we do not primarily rely upon that position.

Arthur J. Goldberg:

(Inaudible)

Richard H. Keatinge:

Well, if you’re referring to the particular provision, the particular comment, I think you were which I will come to it relates primarily almost entirely I think that Santa Barbara Channel area I think he was asking questions on the floor to whether he thought the channel could be inland water and he said he had a very serious questions to whether it could but in effect that it would depend on proof.

Arthur J. Goldberg:

(Inaudible) but you’ll discuss it.

Richard H. Keatinge:

Yes I will.

Arthur J. Goldberg:

(Inaudible)

Richard H. Keatinge:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

Richard H. Keatinge:

Yes, sir.

This picture here is a picture of Santa Monica Bay looking north at this point.

Richard H. Keatinge:

This would be the Point Vicente approximately up here would Palos Verdes Point.

This is the same — this is looking south from the north end of the bay down toward the south end bay toward Palos Verdes Point.

Arthur J. Goldberg:

(Inaudible)

Richard H. Keatinge:

This next bay which is a bay having no legal cases involving it but which we claim a similar nature to the other bays which there are adjudications is San Luis Obispo Bay.

This extends form Point San Luis to Point South.

The differences between the United States position and the California position are shown by the difference between the green line and the — this outer red line.

This is the San Luis Obispo Bay looking south.

This large map for which we have no corresponding picture represents the so-called “Overall unit area of California waters”.

It includes the area extending from Point Conception South to Point Loma — near Point Loma in San Diego.

I think the U.S. claim — the position of the U.S. claim, the green line is perfectly clear.

The California claim, the red line, I think, should also be clear.

The only line which may require a brief explanation is the so-called “(Inaudible) line”, this is California boundary per indications on U.S. maps.

You will find attached to our closing brief in the pocket part some maps of the United States as of 1885 and 1963.

These maps contain extensions of county boundaries out into the water areas off of the coast of California.

It is our contention that the — by joining in effect the ends of these points of these lines you’re drawn on these United States maps it is possible to construct this blue line, we claim not that this is an alternative line but merely that this gives some support to the position that we take regarding the fact that this area is to be considered internal waters or parts of the territory of the State of California.

Potter Stewart:

Who — who published these maps?

Richard H. Keatinge:

They are Army Engineers maps.

Excuse me, Department of the Interior Maps, the first one being 1885.

Potter Stewart:

Yes.

I’ve seen — I’ve seen it.

Thank you.

Mr. Keatinge, can you tell me roughly, the total area involved in this dispute.

I mean acreage-wise.

Richard H. Keatinge:

I think we have those figures here.

We’ll try to give them to you.

Well, don’t bother, I’ll —

Richard H. Keatinge:

If I may we’ll give you that figure after the numerous sets.

We’ll have that figure for you.

Hugo L. Black:

I suppose that if we give them a chance, but then if we give the Government, we would ultimately give the Government less than it thinks what it asked and that is less than you want, Congress would have divided it and give it back to you?

Richard H. Keatinge:

I think that’s correct, sir, because we again view this problem and I get back I think always to the same point that Congress has the power to divide the subsoil between the nation and the state.

Richard H. Keatinge:

I think as this Court said in the U.S. versus Louisiana pursuant to the right of Congress to distribute or to disclose the federal property, it would have the right to divide this or to grant this property to the States.

Yes, sir.

Hugo L. Black:

Has there been anything presented to Congress by either you or the United States —

Richard H. Keatinge:

No, sir.

Hugo L. Black:

— in connection with this matter —

Richard H. Keatinge:

No, sir.

Hugo L. Black:

— and any other State?

Richard H. Keatinge:

Not that I know sir because it was our understanding that when this matter was allowed to lie dormant in 1952 that it had died and naturally, taking that position, we did not — the State did not take any further action, no matter not being reactivated until last December.

Arthur J. Goldberg:

Is there any (Inaudible) in the area?

Richard H. Keatinge:

There has been drilling for oil I think in all of these bays.

San Pedro Bay of course think a great deal of oil and Santa Barbara Channel Area contains a great deal of oil.

Monterey Bay, to the best of my recollection, been no successful drilling.

Santa Monica Bay, they’re just starting to drill.

San Luis Obispo, I don’t think we know of any that I know of at this point.

Arthur J. Goldberg:

And one was taking place in this disputed area?

Richard H. Keatinge:

No.

The situation has been of course as a practical matter of perspective less easier reluctant to take a chance on who’s right.

William J. Brennan, Jr.:

Well, with that citing, there’s no money over the last several years which the United States and California contest in present.

Richard H. Keatinge:

That is correct.

Byron R. White:

Mr. Keatinge, your historic argument though and constitutional argument, though a good deal part of this deal with — deal with the subsurface where the land that meet the waters.

I would assume that if your argument is any good worth anything at all, it means that these are inland water and decide these dotted red line is on your map.

It’s had great many implications over and beyond the question of what oil may be to meet the surface.

And in that respect, it seems to me — it seems to me that when you say the international relations of United States are wholly irrelevant with such ideas.

It’s not a good deal.

Richard H. Keatinge:

Well, our position again Justice White is this, that Section 6 of the Submerged Lands Act makes it perfectly clear that even to these properties which are granted back to the State whatever may be, that this — the paramount rights with respect to foreign relations, commerce, and other activities which are granted the federal Government by the Constitution are expressly reserved to the Federal Government and even in those areas to which the property interest are transferred back to the States, these paramount rights which this Court determined belong to the Federal Government in U.S. versus California still remain.

They are not —

Byron R. White:

So — so Congress — so you say Congress did accept then, the statement of the Court in Western California in the sense that United States owned the territorial waters that the were an issue in that case.

Richard H. Keatinge:

We —

Byron R. White:

The Congress accepted that but then it turned around and gave it back.

Richard H. Keatinge:

No, I don’t say that.

Richard H. Keatinge:

What I say is, they gave the property on the sea bed and the subsoil on the continental shelf, this portion of it back to —

Byron R. White:

Alright, it didn’t give back any waters, it gave back the subsoil?

Richard H. Keatinge:

That is all we are concerned with here and the point — and the purpose of it is simply to determine where the measuring line ought to be.

How do you measure the lines?

William J. Brennan, Jr.:

Well, how do you — as a practical matter — as a practical matter, does that mean, for example, it was the surface board or perhaps even the fishing line, might be regulable by the Federal Government even though the subsoil belonged to the State of California?

Richard H. Keatinge:

Yes, that’s true.

And this — and this Court I say said this, again in U.S. versus Louisiana.

It said there might be a different boundary for internat — for purposes of foreign relations than there might be —

What you say is that the United States an excess of largest, you are to give the States the entire continental shelf 200 miles out.

If you do, that will do a lot of rippled effect on its foreign relations.

Richard H. Keatinge:

I say that’s absolutely true and I say that’s what this Court said.

And there’s certainly not that much in Louisiana.

Richard H. Keatinge:

Pardon?

There’s certainly know that much in Louisiana.

Richard H. Keatinge:

Exactly, my position sir.

Byron R. White:

I understand that.

I’m just trying to get to the — if Congress accepted — if Congress accepted the Court’s decision and you ask the United States against California 332 U.S. or whatever it was and then turned around and said, we’re going to give a certain major of the subsoil back.

It seems to me that it starts from the part they’re giving back, starts from the premises of 332 U.S., doesn’t it?

Richard H. Keatinge:

Well, let me show you about why that might not be true, Justice White and I give you this best example I think it’s probably Texas.

Now, that all work intending for let me make it clear three miles, we’re not contending for three leagues is this Texas or this Court found that in fact Texas had.

The situation you can have in Texas is that under — for domestic purposes and under the Submerged Lands Act the — this Court and in effect stated that — that the — this marginal belt here that goes out not three miles but goes on in effect to ten-and-a-half miles.

On the other hand, for foreign relations purposes, this country or the Federal Government is perfectly free to maintain for international purposes that the limit of inland waters for international purposes only is three miles and not ten-and-a-half miles.

I say, or we say that this Court is determined that those boundaries — the domestic boundaries for the purpose of dividing the subsoil and the foreign bound — or which you might call a foreign relations boundary for the purpose of the foreign relations of the United States may be different.

We say this Court said exactly that.

Byron R. White:

I understand that.

Richard H. Keatinge:

Now, to summarize the basic dispute between the two parties, the U.S. position can in effect, can seize the division of the continental shelf between the nation and the States under the Submerged Lands Act as a domestic matter.

But the United States insists that the criteria for affecting that division or to be ascertained from the United States foreign relations practice as of the date of the Submerged Lands Act of the California position is diametrically opposed.

It’s California’s position that Congress was basically overriding the result as to ownership of submerged lands of the original California, Louisiana and Texas decisions by restoring the States those submerged lands lying within their historic boundaries subject to certain limitations which were expressly set out in the Act.

Congress was also in enacting the Submerged Lands Act accepting the invitation of this Court in the California case to do equity of the States.

In this context, California believes that the criteria for affecting the division of the continental shelf should be ascertained by reference to a state’s historic boundaries and for additional expectations, irrespective of State Department practice.

Richard H. Keatinge:

We believe that the Government is attempting to use or abuse, if you will, the foreign relations power of the Executive to frustrate the intent of Congress in a strictly domestic federal-state matter.

Arthur J. Goldberg:

(Inaudible)

Richard H. Keatinge:

Well our position then —

Hugo L. Black:

It seems to me reading that, it seems to me that you are making your side depend entirely on an interpretation of the Submerged Land Act.

Richard H. Keatinge:

Well in part, we’re not just depending on the interpretation of the Act at such.

We’re in effect depending upon this Court’s ruling in the second U.S. versus Louisiana case in saying what the Submerged Lands Act meant.

Hugo L. Black:

So, they would get back finally to Submerge Land Act on which you claim is read?

Richard H. Keatinge:

That is correct, because we feel that this Court’s opinion in the original U.S. versus California case made it rather clear that the State of California had no rights, power or dominion in or over any of the area below the ordinary lower water mark or outside of inland waters.

Byron R. White:

And under that decision — under that decision, you think you would be making these kinds of arguments?

Richard H. Keatinge:

We think we could with respect to Inland waters but we don’t think they would be as strong as they now are.

The reason we say they are stronger now is —

Byron R. White:

You make those kinds of arguments in the California or did you have to?

Richard H. Keatinge:

Well, I don’t think that the position was the same then.

I can’t state exactly what arguments were made because at that time I was not counsel.

Byron R. White:

But why would they be any — why would they be any good at all in U.S. District of California?

Richard H. Keatinge:

In terms of the way the decision was — came down, they probably were not any good except possibly with respect to the definition of inland waters and again, that would only be possible.

We claim that with respect to the situation as it now exists under the Submerged Lands Act and considering the history of the Submerged Lands Act the Congress made it clear that it wished the determination of inland waters and the nature of inland waters to be determined primarily by the prior cases of this Court decided, prior to first the United States versus California.

Basically, in effect going back to the rule of Pollard’s Lessee versus Hagan to determine what were or were not inland waters and this was so stated I have a few quotations here on the floor and in the Committee with respect to the intent of Congress in passing the Act and how inland waters were to be determined.

Now, if the resolution of this dispute depends primarily, we contend in the intent of Congress both parties agree that Congress in exercising its constitutional power to dispose a federal property could have divided the continental shelf between the nations and States in anyway it saw fit, and that the dispute over the extent of that division depends upon the intent of the Congress.

The parties also agree that with the Truman Proclamation in 1945 the entire continental shelf came under the jurisdiction of the United States and the division of shelf between federal and the State governments involves a purely domestic matter in no wise affecting the international relations of the United States.

We say that this Court has already ruled in the second Louisiana case in the basic intent of the Congress and enacting the Submerged Lands Act.

The test, we contend, that should be applied in ascertaining the extent of the division is one of the state’s boundaries upon admission, not U.S. foreign relations.

In the Louisiana case, the Court noted that the fixing of a state’s boundaries as a function of Congress and cannot be fixed by executive action and we have cited certain cases with respect thereto.

The legislative history of the Submerged Lands Act shows that Congress intended the division of the continental shelf to be in terms of state historic boundaries and not to be effective or affected by United States international relations.

The Report of the Senate Committee on Interior and Insular Affairs and the numerous statements of the author Senator Holland and the Senate Floor Manager Senator Cordon, the Senate Majority Leader and the other leading supporters of the Act leave no doubt as to the purpose and intent of Congress in enacting this legislation, namely to modify the prior decision on this case and to restore to the state’s ownership of the submerged lands within their historic boundaries.

For example, we have quoted from a senate community Report that appears in our opening brief at page 10.

The purpose of this legislation is to write the law for the future as the Supreme Court believed it to be in the past that the State shall own and have proprietary use of all lands under navigable waters within their territorial jurisdiction whether inland or seaward, subject only to the governmental powers delegated to the United States by the Constitution.

Senator Holland also stated and this quotation appears in the government’s answering in brief at page 20, “This joint resolution will confirm to the maritime state of which there are 20, the rights which they had respectively enjoyed since the founding of our nation and up to the date of the decision in the California case in their offshore lands and waters which lie within their constitutional boundaries.”

Their quotations in similar vein from Senator Holland, Senator Cordon, Senator Daniel, Senator Taft and others.

As Texas pointed out in its brief in the second Louisiana case determines historic state boundaries original boundaries and for additional state boundaries were used over 1,000 times throughout the legislative history of this Act.

Richard H. Keatinge:

And there can be no doubt that Congress spring the Act in terms of restoring to the States the submerged lands within the State boundaries at the time of admission to the Union.

In addition, there is no doubt that Congress was aware that it was dealing with a domestic matter and not with a question of foreign relations.

Now, this particular point was made clear by the testimony of Deputy State Department Legal Adviser Tate before the Senate Committee and his testimony in turn was later quoted on the Senate floor.1

We have discussed that testimony in detail that they just 35 to 50 of the second volume of our opening brief which is the appendix.

Arthur J. Goldberg:

(Inaudible)

Richard H. Keatinge:

Alright, Your Honor, we’ll then have to look if you will at the provisions of Section 2 (c), I believe it is, which defines coastline —

Arthur J. Goldberg:

(Inaudible)

Richard H. Keatinge:

— and if you will see the definition of coastline, in effect States that, for example, where your coast fronts the open sea then your measurement will be from the ordinary low water mark along the coast.

In other words, the three miles will go out here.

However, where you have inland water as we would contend this bay, let’s assume for the moment that it is, then you have to determine where the seaward limit of your inland waters are and let us assume again for the sake of this discussion that that is this line here.

Then the measurement is made from the outer limit of inland waters outward for the three miles.

In other words, if this area is to be considered inland water you have to make the measurement from here not from back here.

William O. Douglas:

Well, that’s precisely — the Submerged Lands Act doesn’t seem to help one way or the other?

Richard H. Keatinge:

It doesn’t help a great deal, Your Honor.

We have certain quotations from legislative history which I’ll get to in a minute with respect to discussions.

There were certain amendments offered to the provisions defining — an attempt was in fact made to define inland waters and it was not successful.

Thereafter, there were certain discussion on the floor and in the Committee which I will discuss and read from quotations which I do think are helpful and I think it was clearly the intention, we contend, to first of all leave inland waters as they were before this Court’s decision in the first California case, and secondly, there are certain comments by Senator Anderson and others which I will read trying to define at least in general terms what are inland waters.

We agree there’s not very much in the history on that point.

Arthur J. Goldberg:

(Inaudible)

Richard H. Keatinge:

I don’t think so sir.

I wonder —

Arthur J. Goldberg:

I’m referring to the quotation stating that there (Inaudible)

Richard H. Keatinge:

I think that comment, if I —

Arthur J. Goldberg:

(Inaudible)

Richard H. Keatinge:

I think he was referring only and as I understand it to this particular area here and if this is the area about which is I remember that question, he was questioned by Douglas as to whether he thought this whole channel here to be considered inland waters.

And he expressed an opinion that he didn’t think so.

I think that’s if I remember the quotation correctly, that’s the one to which he was referring.

Arthur J. Goldberg:

(Inaudible)

Richard H. Keatinge:

Yes.

Arthur J. Goldberg:

That the State — the State is rather (Inaudible)

Richard H. Keatinge:

Well, I don’t think he quite said that.

I think what he was really commenting on when I say so sir was the question of whether or not this area here could be considered inland waters.

In other words —

Arthur J. Goldberg:

Is there any difference between there and the other?

Richard H. Keatinge:

Well, there would be difference — difference for a number of reasons.

In other words, historically landlocked bays, for example, has been considered inland water.

Certain types of historic bays had been considered inland water.

The history of the Act makes it clear that as to those areas which were historically and by case law this Court and other courts considered to be inland waters those waters — in those cases, you measure from the outer limits of those inland waters.

For example, if this bay was to be considered inland waters then you measure from the outer limit of the bay.

The question as I understand it in the context in which he was asked is whether this whole area here in the Santa Barbara Channel could be inland water.

And I think Senator Holland expressed very serious reservations about that, but I think he also made it clear, basically that it was really a matter of proof that he didn’t think he could be proven but it was not foreclosed.

Arthur J. Goldberg:

(Inaudible)

Richard H. Keatinge:

Well, they vary in depth.

It is perfectly true that the bays in the West Coast of the United States tend to be somewhat deeper.

The East Coast Bay primarily what geologically we call Brown Valley these are a little different, we have sharp problem.

However, we contend that under these case laws starting with Ocean Industries cases on Monterey Bay, the Carrillo case on San Pedro Bay, the Stralla case on Santa Monica Bay that they have applied the same principles, the same legal principles to those bays which have been applied in prior cases involving Chesapeake Bay and Delaware Bay on the East Coast and that essentially there is no difference.

It’s a legal matter between those bays, both as to history and the criteria which have been applied in determining that they are inland waters.

Potter Stewart:

As I suppose for example that we know, there would be no question about the San Francisco Bay.

Richard H. Keatinge:

I think —

Potter Stewart:

I mean I suppose without — that the Government would concede that you don’t begin with the actual land shoreline there but that the shoreline begins at the entrance of the Golden Gate.

Richard H. Keatinge:

That is correct sir.

In the case of — I think we have the stipulation or have had a stipulation in the past with the United States with respect to San Francisco Bay a small portion of San Pedro Bay, only the very internal portion and San Diego Bay.

Potter Stewart:

So the Government doesn’t make the claim that the coastline, I mean, it hasn’t necessarily always mean the land mass, nobody makes that point, am I correct?

Richard H. Keatinge:

Not — not quite that extreme.

No, sir.

Now, the Act itself clearly reserves to the Federal Government control in those areas including foreign relations over which the National Government has paramount rights.

During the Senate Committee hearings on the Act, the original definition of coastline which is in Section 2 (c) and inland waters was amended.

The amendment deleted after inland waters and this, I might say, appears on pages 21 and 22 of Volume I of our opening brief, the amendment deleted after inland water is the words “Which include all estuaries ports, harbors, bays, channels, straits, historic bays and sands, and all other bodies of water which join the open sea.”

One of the reasons given for this amendment by Senator Cordon the Acting Chairman was that, “It was sought not to get into that field because you were in appeal then where in our attempts to take care of a purely domestic matter, we might be putting the United States on record with a president which we intended only to apply domestically but which might be applied internationally.”

As we have pointed out in our closing brief, attempts were made once in committee and for or five times in the floor of the Senate and the House to frame the acts in terms of or by reference the United States Foreign Relations.

Richard H. Keatinge:

The Congress did not accept any of these proposals.

Many reasons can be given for the defeat of each proposal but the important point is that these attempts to frame or limit the Act by reference to criteria other than historic boundaries were uniformly rejected by Congress.

In some then we say, that the Congress knew that it was dealing with domestic matter and framed the Submerged Lands Act by reference to a State historic boundaries and not by reference, the State Department practiced in 1850 in 1953 or now.

We believe that this Court has already ruled the second Louisiana case on the aspect of congressional intent behind the Submerged Lands Act and we believe correctly.

We now turn to a determinate —

Byron R. White:

I thought there some — I thought it has something to say under your brief and Government that Congress thought it was just leaving this question exactly where it founded them?

Richard H. Keatinge:

I think they were leaving a question of the termination of what would constitute —

Byron R. White:

But this could determine just as they were navigable — where the shoreline was or what the outer boundaries in the — in the matter it was, is to be determined is as though there had never been a Submerged Land Act.

Richard H. Keatinge:

Never been a California case.

This is what we say in other words our position is that you —

Byron R. White:

Well, I said that we’re going to leave it where we found it without choosing upsides on any of these theories.

Richard H. Keatinge:

I think that’s — that’s correct.

That’s correct.

Byron R. White:

Including choosing upsides between historic and international rule.

Richard H. Keatinge:

Well, I think they did make this final determination.

I think you did make the final determination if I understand your second Louisiana case correctly that you have made the determination that this is a domestic matter, that intent of Congress was to consider this domestically, as this quotation I believe indicates, and that he problem is truly one of the division domestically of this area between the nation and the State with respect to the question of inland waters as a question of going back and I think the quotations I will give support this, going back to the doctrine of Pollard’s Lessee versus Hagan and the cases which have followed which this Court has decided over a period as the one of the Senators said, of 150 years.

Arthur J. Goldberg:

Mr. Keatinge, this probably is the(Inaudible) that apparently said, if we are going to analyze the definition of inland waters would be defined by the (Inaudible) decision.

(Inaudible)

Richard H. Keatinge:

Well, we say that the as one of the Senators said in the floor, I think that there have been over 50 decisions of this Court and some 200 decisions of other federal courts defining in some face or other inland waters.

As I believe Senator Holland said there is no one case in which you can find a good definition of inland waters but you have to take them all together in effect.

Arthur J. Goldberg:

(Inaudible)

Richard H. Keatinge:

Well, I think I can be of some help.

We have one citation which unfortunately is not in our brief but it is in the congressional record.

I will give the citation.

It’s 99 congressional record at page 3004 and 5, it is the statement by Senator Anderson.

I think it’s directly in answer to your point.

In defining inland waterways and I’m quoting, “We mean rivers, lakes, including the great lakes, streams, bays, and harbors.

The land bits underneath these inland waters undoubtedly and undeniably belong to the States.”

We also mean other bodies of water along the Atlantic Coast such as Long Island Sound although not falling precisely within the definition cited above which have been judicially determined to be inland waters.

Their beds then likewise belong to the States.

Arthur J. Goldberg:

That sounds might be inevitably as (Inaudible)

Richard H. Keatinge:

No.

No, I might say also that Senator Holland, Senator Long, and Senator Daniel also spoke of the case law.

And among the — immediately following this quotation I think in examination of this particular little area in the record will indicate clearly that it was their intention to talk about the Act as it came out not about anything that might have been removed by the amendment.

Now, I think Senator Holland made it perfectly clear that nothing was removed by the Amendment.

They did not want to put in a provision, however, which they felt might affect the United States in its international relations.

They simply wanted to leave the situation as they found it.

Arthur J. Goldberg:

I thought the California and Louisiana case was part of Union law.

Richard H. Keatinge:

No, sir.

And as I think I mentioned once before in note 108 in page 66 of your opinion in that case you expressly did not decide the question, you stated that you were not deciding where the coastline of the State of California or State of Louisiana or any other state lay.

Hugo L. Black:

The same thing is true with reverence to the first California case, isn’t it?

Richard H. Keatinge:

I think that’s true.

Hugo L. Black:

But we’ve passed on what was a three-mile belt, who had paramount rights over that outside the State boundary line, whatever it was.

Richard H. Keatinge:

Whatever it was but you didn’t decide what it was.

I think that is correct.

Hugo L. Black:

We didn’t try to define inland waters was, and we wouldn’t have to put in that belt.

Richard H. Keatinge:

No, sir.

I think that’s correct.

Has these problems arise — I don’t know what happened as an aftermath in the Texas case.

Do you have this problem in the Texas case?

Has there been a subsequent litigation where you might hear the cause now and completely —

Richard H. Keatinge:

I think Mr. Cox —

(Inaudible)

Richard H. Keatinge:

— will answer that.

Alright.

I (Inaudible) take your time.

Perhaps you could (Inaudible)

Richard H. Keatinge:

Now, the Government insists that the baseline established by the Submerged Lands Act is identical and intentionally so to the baseline used in the original decree in the First California case.

Therefore, they argue the criteria for ascertaining the location of this baseline are to be determined by United States Foreign Policy.

The United States however shows no support for the conclusion which obviously runs counter to the basic philosophy of the Act.

Richard H. Keatinge:

The effect of the government’s position is to have the extent of built up land restored to the States determined by State Department practice since fixing the baseline by such practice, obviously, fixes the extent of the area restored.

If Congress has clearly intended that it did not intend such a result and the Court is rejected such an approach in the second Louisiana case.

An examination of the legislative history of the Act, shows that Congress rejected using U.S. Foreign Relations as the criteria for establishing the baseline under the Act.

This was most notably shown when the Senate Committee and Executives’ session amended the definition of inland waters to exclude the phrase quote “Which includes estuaries, ports, harbors, bays, channels, straits, historic bays and all other bodies of water which join the open sea.”

The Senate Committee Report in commenting on this amendment stated then I quote this is the Senate Report at page 18 and our brief at pages 21 and 22, “The elimination of the language in the Committee’s opinion is consistent with the velocity of the Holland bill to place the States in the position in which both they and the Federal Government thought they were for more than a century-and-a-half and not to create any situation with respect thereto.”

During the Committee debates in this amendment, Senator Long expressed fear of having a State Department determine whether certain areas constituted inland waters.

Some of the other Senators clearly indicated that this was not of the intent of the bill, for example, Senator Cordon.

This quotation approves that pages 27 and 28 of the second volume of our opening brief, “The elimination of the language still follows what the chair understands to be the philosophy of the bill, that we are putting the States where they thought they were and not attempting now to create either a situation in law or a basis for a rule of evidence that may or may not have been sound when the States came into the Union.”

I believe that the elimination of the language does that.

I believe that it will not prejudice any State in account of anything in this bill.

It may not do as good a job for some State as it would have the Congress legislatively met the State’s contention and agreed with it.

But as I understand it, what we seek to do is neither to agree nor to disagree but to announce legislatively that we seek to place to place the States in the position the States believe themselves to be in prior to the California decision and to leave to them at the same time every remedy in the courts of this country that they then had or thought they had with reference to what they thought was theirs.

And then there is a comment by Senator Daniel which we’ve also quoted second volume of our opening brief page 27.

Senator Daniel, “Mr. Chairman, I would vote for Senator Long’s amendment of his offer by I agreed fully with the Chairman that the striking these words was not done in any manner to prejudice the rights of the States and that the effect would not be to bind this to the boxed formula or anybody else in this formula.”

I just want to state for the record if this record is ever used in the future and the final comment by Senator Anderson Volume II of our opening brief at page 34, “I subscribe fully to what the Chairman said quite awhile ago in pointing out that this bill does not seek to take away from our add to the position of these States as they came into the Union.

Now, it’s obvious from these expressions of underlying philosophy that Congress intended historic criteria to govern the baseline established by the Act.

Now, these historic criteria, we contend, are not affected in any way by the United States Foreign Policy as of 1953.

Now, relating the baseline and particularly inland waters to historic criteria, it must mean those water areas the States considered to be part of their territory when they were admitted into the Union excluding of course the marginal belt, those areas over which the — in other words those areas over which the States have historically exercised jurisdiction.

Again, to quote Senator Holland, this appears in the testimony before Senate Committee in the 1953 hearings at page 48 and I quote, “But the language of the bill is perfectly clear and that it is the constitutional boundaries and it is the historic boundaries and it is a case of restoration and establishment to the States of what lie within their boundaries or jurisdiction, a criminal law and a various other kinds of laws boundaries which fix the venues of cases which arise.”

Now, the validity of a State’s historic boundaries, we say, should not be tested by some technical and changing criteria devised by the State Department which may be valid for international relations but which have no bearing on federal-state relations.

When questioned during the senate hearings about the location of the coastline in inland waters, Senator Cordon stated and this appears in our closing brief pages 22 and 23 and Footnote 9, “The matter if inland waters are one which has been defined time and time again by the courts not I believe in one all inclusive definition.”

In committee hearing, Senator Cordon also stated and this is the 1953 hearing at page 1384, “There is no question in the Chairman’s mind that is that we are not bound by any opinion, expert or otherwise, that is not comprehended in the statutes of the United States or in the decisions of its courts.”

I have already read Senator Anderson’s comment.

Now, to contrast with this is the position of the Special Masters.

He framed his recommended answers on the premise that the issues would be determined by reference to United States Foreign Relations and external sovereignty.

As I have already pointed out, I have already pointed this out but I would like to read a quote from his Report, it appears in Volume I of our opening brief at page 34.

He states, “Under these circumstances adjudication of the status of the water areas here in controversy must depend upon whether there has been effective assertion by the United States and its international relations of the criteria proposed by California.”

And as I believe we’ve already pointed out, this not a test which appears in the Submerged Lands Act.

Now, the Special Master also noted and this is at page 39 of this Report that the evidence concerning the geography, the history and the economic importance of the water area in dispute would have been relevant if there had been any assertion of exclusive jurisdiction of these waters by or on behalf of the United States, but under his approach, the evidence was considered irrelevant.

In view of the purpose of the Submerge Lands Act and Senator Holland’s remarks concerning historic boundaries and boundaries of jurisdiction, this evidence, we believe, is now relevant and critical.

Richard H. Keatinge:

Consequently, we believe that the Special Master’s Report is not an appropriate vehicle for resolving the present dispute.

In this regard, we believe, that the evidence presented to the Special Master and any additional evidence which would now be relevant under the change rules applicable should and must be reevaluated in light of the proper criteria to be applied under the Submerged Lands Act.

As far as the basic concerned, however, we believe that all of the evidence principles and legal materials necessary are before this Court and that this aspect of the case can be disposed of now.

As to the island boundary in the question of waters intervened the mainland and the offshore islands.

We feel that it would be appropriate to refer the case again to a new Special Master to evaluate the evidence and take new evidence based on the proper principles to be applied as to be announced in a decision in this case.

We now turn to an application of historic criteria to the Calif —

Arthur J. Goldberg:

(Inaudible)

Richard H. Keatinge:

Well, the Special Master took the position that any evidence regarding economic conditions, historical conditions or search into sovereignty for example by California any material of that sort would not be relevant because this position was as I read this quotation, “It’s entirely a matter of the foreign relations of the United States.”

This is all I wanted to hear about —

William J. Brennan, Jr.:

But was that evidence and fact then indicates the —

Richard H. Keatinge:

There is indeed a great deal of evidence already in the record.

William J. Brennan, Jr.:

Well now, what you’re telling that he didn’t evaluate I gather because of the premise that on which he proceeded with which as I recall it, California originally agreed.

Richard H. Keatinge:

That is correct, sir.

William J. Brennan, Jr.:

And you did, and I get your exceptions now.

What you’re telling us is that you abandoned that agreement or perhaps not abandoned it but it’s no longer relevant you say because the Submerged Lands Act proceeding on a different premise?

Richard H. Keatinge:

That is correct.

We say that because the premise in the basic law which is now applicable has changed the Master’s premise is no longer applicable.

William J. Brennan, Jr.:

Now, may I get back to Mr. Justice Goldberg’s question, you actually did put in, I gather, a great deal of this data.

Richard H. Keatinge:

That is correct.

William J. Brennan, Jr.:

Although, he rejected it and therefore didn’t evaluate it.

That is in his affidavit.

Richard H. Keatinge:

That is correct.

William J. Brennan, Jr.:

I gather — would there be still more if I had to be sending this back to the second master, would there still more in addition of evidence.

Richard H. Keatinge:

Yes, I think there would be still more.

I can’t honestly tell you how much more but I would feel confident there would still be more.

In fact I’m sure that if this premise is accepted there would be much more effort put into framing the evidence to meet these would now be relevant considerations.

Byron R. White:

Well, absent the Submerged Land Act and I don’t suppose it was your position to remain the same.

Richard H. Keatinge:

Absent the Submerged Lands Act and the United States versus California the first case before us I think we would be in a rather bad way.

Byron R. White:

But the historical argument gains, you think gains — gains its strength from the Submerged Land Act?

Richard H. Keatinge:

Yes.

Byron R. White:

What if it didn’t gain any strength or this — there weren’t submerged lands?

Richard H. Keatinge:

Not entirely but the argument doesn’t have the strength, we say, that it does have because of the Submerged Lands Act and because of the basic philosophy of the Act.

We would still have the argument that the bays as such for example are inland waters under the decisions of the California Supreme Court and the federal courts and that properly comparing those decisions involving Chesapeake Bay and Delaware Bay that they should be considered inland waters, that they should not be rejected as inland waters as did the Special Master.

We say that allegation or that position to be taken independently of the Submerged Lands Act.

Byron R. White:

So you would have — and you should — the original exceptions accepted that approach, you would have modified anyway.

Richard H. Keatinge:

I think — I think if I look for this way.

If I were arguing taking the position I would have modified them.

I don’t know how someone else might have treated it.

The question of applying historic or constitutional criteria to the California Coast at the outset we should like to state that we believe categorically that the bays of California including the great bays of California that we have illustrated here fall clearly within California’s constitutional boundaries, we based this on the following.

The starting point in discussing California’s bays are constitutional which provides in the boundary description and I quote “Also all the islands, harbors and bays along and adjacent to the Pacific Coast.”

This quotation appears in our opening brief at page 54.

In our opening brief at page 36, we also —

Potter Stewart:

That language comes from how early a Constitution?

Richard H. Keatinge:

This is the Constitution of 1849 approved by the Congress in the Admission Act of September 9, 1850.

Potter Stewart:

Right.

Richard H. Keatinge:

Now, it’s our position that this phrase “also all the bays” means all those areas which were recognized as such in 1850, irrespective of size or any transitory technical criteria.

We say that all of these bays are part of California and are inland waters within the meaning of the Submerged Lands Act.

We also believe that this interpretation of the phrase all bays is exactly what was comprehended in the typical expression of the day concerning the delimitation of the marginal sea.

The Secretary of State Buchanan wrote in 1849 the exact year that California promulgated its Constitution and this quotation and the reference to it appears in our opening brief at page 54 quote, “The exclusive jurisdiction of a nation extends to ports, harbors, bays, mouths of rivers and adjacent parts of the sea enclosed by headlands.”

To paraphrase the North Atlantic Coast Fisheries Arbitration Tribunal in 1910 which was endeavoring to ascertain the meaning of the terms bays in the Treaty of 1818 between the United States and Great Britain, the delegates to the 1849 California constitutional convention did probably not trouble themselves with settled theories concerning the notion of bays.

They most probably thought that everybody would know what was a bay in this popular sense and that most of them that that’s the way the term must be interpreted in the Constitution and I should simply note in passing with California’s Constitution in 1849 was written at Monterey here on the shores of Monterey Bay.

Arthur J. Goldberg:

(Inaudible)

Richard H. Keatinge:

That is correct.

Arthur J. Goldberg:

(Inaudible)

Richard H. Keatinge:

Precisely the next thing I’ll turn to you.

Now, the case of Monterey Bay was the first bay where the question of whether it was a bay or whether it came within the boundaries of California came before our State Supreme Court in California.

Actually, there was a prior federal case with the principal case found which rely is the case of Ocean Industries versus the Superior Court which is a 1927 California Supreme Court case.

Potter Stewart:

What are the question arise.

I haven’t read those cases in the —

Richard H. Keatinge:

The question arose squarely on —

Potter Stewart:

How did the issue come up?

Richard H. Keatinge:

A fish reduction plant was operating out in Monterey Bay, a floating plant.

The plant was operating in approximately the location of my point.

In other words, it would be between the red line and the green line.

The question was raised whether or not the plant or both was operating in territorial waters of California and so that California could regulate the operation of the plant.

In other words, the question of injunctive relief was sought to stop the operation of this fish reduction plant under our Fish and Game Law.

The contention was made that the boat was operating outside of the territorial or the inland waters of California.

It was on the high sea.

The precise portion is that we say is here.

The Court has said in that case clearly the description bays included bays, all bays in the ways they were commonly understood at that time.

Clearly also, historically, under Spanish and Mexican rule bays were considered to require the mainland to be included within the territory of the State of California, that this history was picked up by California at the time that it became a state.

That its Constitution in effect picked up the Mexican and Spanish history and in turn this was the way the Constitution was to be interpreted that this in turn was binding on the United States and the State approved the Admission Act in 1850.

This is in effect is the chain of logic.

I commend to you — the Court’s attention, what we consider the excellent discussion of this question in the Ocean Industry’s case, the Supreme Court case.

This reasoning and this I might say follows in turn and is in turn dependent upon the earlier decisions or the earlier rulings of Attorney General Randolph in the case of Delaware Bay and in the Commissioners for Alabama Claims in the Chesapeake Bay which are also cited in our brief.

Now we say those are — these cases are exactly very identical in logic and in reason to those earlier cases.

We also say that this is the exact type of activity by the State that Senator Holland meant when he said and I quote from the hearings at page 48.

It is a case of restoration and establishment to States of what lies within their boundaries of jurisdiction, of criminal law and a various other kinds of law.

Also of significance and I referred as the earlier Chesapeake and Delaware cases.

We have the same situation existing with respect to San Pedro Bay, we have the case of People versus Carrillo where Federal Judge District Judge Stevens would have to determine whether or not a particular gambling ship was operating on the high seas or within inland waters to the State of California when it was operating on the same condition of property on one point that was here.

He stated again that the — looking at the history of California, the Spanish and Mexican period and looking back to one Vancouver first discovered this bay, the San Pedro Bay extended from this point here over to Point Lasuen.

Byron R. White:

You are I gather making an argument here that based on the history in your Constitution that these waters, these are — the waters inside those lines you’ve been referring to are inland waters.

These are the boundaries of the State?

Richard H. Keatinge:

That’s correct sir constitutionally.

Byron R. White:

Constitutionally, yes and you can’t deny, I suppose, then that the inland — that boundary is the boundary between the inland waters and international waters?

Richard H. Keatinge:

This is — we say that that is not and for the purposes of this case and the issues before here that this is not before this court that this boundary as far as —

Byron R. White:

Well I know that’s what you’re saying but the evidence here is — the doctrine of the evidence and the reference that you’re giving us are determining not only a wholly domestic matter that the land underneath the water but police jurisdiction and everything else, you’re saying these are inland waters.

Richard H. Keatinge:

The subject, if I may say, they are inland waters but subject as the Submerged Lands Act says in Section 3 and 6 to the paramount rights of the United States in foreign relations.

This portion of the 1947 California Decision we say has never changed, that the paramount rights still exists and all it has happened has been that with respect —

Byron R. White:

I know but that’s a wholly circular argument because that exception in Section 6 never applies that these were inland waters.

Byron R. White:

It has nothing to do with it whatsoever but the only — that is only assumption and that provides though assumes that the land which is being given to the State lies outside inland waters because if it doesn’t the proviso has no application whatsoever if these were inland waters, if it was in the police power of the State, if it was in the police jurisdiction of the State.

Richard H. Keatinge:

Well, the prob — the problem we say is partly in this case and the problem determine where the inland waters lie in a place such as this.

The United States says in order to determine those inland waters you have to look to international criteria.

We say that the criteria that you look to initially are the Constitution, in this case the Constitution of the State of California, the terms under which it was admitted to the Union what determines —

Byron R. White:

(Inaudible)

Richard H. Keatinge:

I say that you can do.

Byron R. White:

(Inaudible)

Richard H. Keatinge:

We say that not only did Congress intend that, that Congress could not under cases decided by this court do anything differently.

If these bays —

Byron R. White:

(Inaudible)

Richard H. Keatinge:

Well, I’m not quite sure there is but —

William J. Brennan, Jr.:

(Inaudible)

Richard H. Keatinge:

Yes, sir.

William O. Douglas:

(Inaudible)

Richard H. Keatinge:

Right.

William O. Douglas:

(Inaudible)

Richard H. Keatinge:

I would say not except that I think Section 6 is merely an expression of a way saying that these paramount rights exists whether they’re over land or whether they’re over water in effect.

I would say yes.

I would agree with you.

William O. Douglas:

(Inaudible)

Richard H. Keatinge:

Well, I think somewhere in one of these comments in the discussion in the debates appears a statement that the United States has certain powers or rights, national defense would have certain rights over property on land as well as on sea and in foreign commerce as well.

William O. Douglas:

(Inaudible)

Richard H. Keatinge:

Well, fishing rights are handled separately in the Submerged Lands Act.

They are in effect — the States are allowed to make limited regulations —

(Inaudible)

Richard H. Keatinge:

Well, they would be under the control of the sea.

(Inaudible)

Richard H. Keatinge:

No matter what your Constitution says, you don’t have to — even if constitutionally, we say between the nation and the States these are the boundaries.

The foreign nations do not have to recognize these boundaries except in so far as we may have arrived in an international convention with respect to determining where the lines lie.

Tom C. Clark:

Can you send your police out these bays to pick up the foreign ship for doing things that you think are in violation of your laws?

Richard H. Keatinge:

Subject to the foreign — to the foreign relations power of the United States, yes.

Tom C. Clark:

The answer to that would be absent in action of Congress within its constitutional power whatever it may be.

Richard H. Keatinge:

Yes — yes.

Tom C. Clark:

So you could then interfere what a foreign country conceives to be its rights on waters?

Richard H. Keatinge:

Well —

Potter Stewart:

You might be inhibited by the Commerce Clause of the Constitution.

Richard H. Keatinge:

That’s correct.

We would be.

Potter Stewart:

And in addition, of course, something likes the National Water Power and —

Richard H. Keatinge:

That’s correct.

But again as discussed somewhere in these debates —

Potter Stewart:

Dominant paramount interest, federal interest —

Richard H. Keatinge:

That’s correct.

Potter Stewart:

— as it would have over not only these bays but the Mississippi River or the Great Lakes.

Richard H. Keatinge:

That’s correct.

(Inaudible)

Richard H. Keatinge:

Yes, you could declare the waters territorial waters in which case —

(Inaudible)

Richard H. Keatinge:

Yes, I would say so.

William O. Douglas:

(Inaudible)

Richard H. Keatinge:

Now, the case of Santa Monica Bay is similar to the case of San Pedro Bay and the case of the People versus Stralla lays down what we think a sound test for determining whether or not particular bays should be considered as bays.

And this Court says, is the body of water of bay geographically, is it a bay historically, and is it a bay legally?

In this case, the Court answered all the question in the affirmative and this was again a question of criminal jurisdiction and the application of criminal law in this particular area of the bays.

Now, on leaving this point, I would like to call the courts attention to the fact that these cases, all these California cases are tied together directly to the early 1793 opinion of Attorney General Randolph with respect for Delaware Bay and 1882 opinion of the Commissioners on Alabama Claims with respect to the waters of Chesapeake Bay.

And we further believe these cases, these California cases are among the cases to which Senators Holland, Cordon, Long, and Anderson referred when they spoke of inland waters having been defined by the courts.

We say that the Congress did not intend to adopt any technical criteria when it defined the coastline.

When applied to the California coast, the Submerged Lands Act encompassed the historic and constitutional boundary of State.

This boundary uses the term bays.

It must be concluded that Congress intended that as to California, all those bodies of water which have always been considered bays constitute inland waters within the meaning of the Submerged Lands Act.

Now, returning to our island boundary, historically as we have shown in our briefs, the water areas between the mainland and the Southern California islands were subject the jurisdiction of Spain and Mexico.

Richard H. Keatinge:

The California Supreme Court in the Ocean Industries case carefully appraised this history of Spanish and Mexican control over the coast, seas, and adjacent islands, and the Court pointed out that this area of jurisdiction was ceded by Mexico to United States by the Treaty of Guadalupe Hidalgo in 1848.

As the Federal Court noted in United States versus Carrillo, this area became part of California under the Constitution of 1849.

We also contend that the constitutional boundary description was provided for a seaward boundary from the Mexican border and I quote, “Running in the northwesterly direction and following the direction of the Pacific Coast,” and the final phrase, “Also all islands along and adjacent to the Pacific Coast.”

In light of the history of the area means, that the intervening waters are part of California and are inland waters within the meaning purpose intended the Submerged Lands Act.

As we pointed out in our brief, these phrases were selected from several alternative boundary descriptions and then a total context of the history of the area and intent of constitutional convention must construed as we contend.

The United States insist that California has never prior to this case claimed jurisdiction over this area.

We point out that the Special Master noted that in 1939, the brief of the State of California filed with the California Supreme Court in the People versus Stralla, asserted that the water area lying easterly of the islands is within the boundaries of the State of California as appears to the Master’s Report at page 37.

Of course, the Court in that case was concerned with Santa Monica Bay and not the overall unit, so was not required to rule on the assertion.

The Court did however rule and I quote in 14 Cal.2d at 633 “That the jurisdiction of the State extends over the waters of Santa Monica Bay and at least for a distance of three miles oceanward from that line.”

Finally in our closing brief, we presented an analysis of the federal land mass which were published in 1885 in which I have discussed previously which we also say are consistent with California’s interpretation of its constitutional boundaries.

In summary, we put on this point we believe that historic boundaries, state boundaries, boundaries of county jurisdiction and criminal fish jurisdiction represent the factors to which Senator Holland referred and which must be considered in determining whether an area constitutes inland waters within the meaning of the Submerged Lands Act.

I would like to reserve the rest of my time.

George N. Hayes:

Mr. Justice Black, may it please the Court, I’m counsel for United States and the State of California.

Oh, thank you.

Our position here is with reverence to one point only and it does not concern itself with all of the claims of California or other replies or claims of the United States with the regard to those claims.

We are here merely on the question of whether or not when the United States Executive enlarges upon the juridical bay whether or not that and your to the benefit of the several States.

In going on to that, I think that despite what has been said in all our briefs about international law, international law is not directly pertinent in here and the only place it isn’t relevant, it may be pertinent in that United States coastal seaward boundaries and state seaward boundaries have always been identical in the past and in that respect it may be pertinent.

Otherwise, it isn’t relevant nor is the Submerged Lands Act relevant in this case at all.

I think that what is important in determining whether or not California is to be the given the benefit of the present United States recognized juridical bay that is one that’s closed by land 24 miles or not we have to look at what the Congress did when it admitted California into the Union, the Act of Admission and the intent of Congress at that time as interpreted by the courts and as affected by the development of the law after that and in fact during that time.

When Congress admitted California, it didn’t say anything in the Act of Admission as to whether or not bays were included that is geographical bays or as to whether or not juridical bays which is less than a geographical bay it’s the bay within the natural bay that is made by virtue of the sovereign saying, we’re not going to recognize our sovereignty seaward of a certain line.

Today, it’s a 24 miles and in 1953 it was 10 miles, before that it was six miles.

The California Constitution includes bays and the Act of Admission seems to adopt the California Constitution and from what counsel for California have presented, it seems to indicate that the framers of the California Constitution thought of bays in terms of a geographical bay not a juridical bay.

However, going beyond that point which may be pertinent only to California but going beyond that point to a point which is important to us and California, I want to just cite to the Court what writers of the day indicated what was meant when the word “bays” was referred to generally and just two very brief statements, Your Honor.

One is by Secretary of State Buchanan and he made the statement as appears in the California brief on page 54 with his background, the United States Secretary of State Buchanan statement of January 23, 1849, one year before the admission of California is illuminating, “The exclusive jurisdiction of a nation extends to the ports, harbors, bays, mouths of rivers, and adjacent parts of the sea enclosed by headlands.”

Now, in addition to that, that was said in 1849.

In 1910, the permanent Court of arbitration pronounced or rather spoke of what men and governments considered when the word “bay” was used and they said as Mr. Keatinge quoted, “Now considering that the treaty may refer into Anglo-American Treaty, what the treaty that the treaty used the general term bays without qualification as did the California Constitution.

The tribunal is of the opinion that these words of the treaty must be interpreted in a general sense as applying to every bay on the coast in question that might reasonably suppose to have been considered as a bay by the negotiators of the treaty under the general conditions and prevailing.”

The negotiators of the Treaty of 1818 did probably not trouble themselves with subtle theories concerning the notion of bays.

They most probably thought that everybody would know what was a bay?

In this popular sense, the term must be interpreted in the treaty.

George N. Hayes:

And Your Honor, I think what they meant by the most — what everybody would think of when they thought of bays is this landlocked waters.

Waters that go into the land of a sovereign and are imposed by the land of that single sovereign and that is most probably what California had in mind and what Congress had in mind when they admitted California into the Union.

But let’s assume they didn’t and that Congress had in mind something less than a geographical bay which is landward of the natural entrance point.

Let’s assume that Congress had in mind a juridical bay.

Then the question comes up, what kind of juridical bay?

A juridical bay that’s defined by a 10-mile closure, a 24-mile closure or a six-mile closure.

They couldn’t have been thinking of 10, they had no idea at that time or no very good idea, I would say, that we would go to 10 but let’s say that they might have been thinking of 10.

If they were thinking of 10, they certainly might have thought that someday the United States would extend its juridical bay further out to sea than 10 and in fact we have.

The only thing that was in existence at that time by way of a juridical bay was a six-mile closure line, in 1850, and that six-mile closure line went on a clear past the turn of this century.

So if all Congress meant to give to the territorial limits of California was a juridical bay it must have been a six-mile bay.

And yet Your Honors, the United States is not contending and wouldn’t contend for a minute that all this Court should define is being within the territory of California is all those landward of a six-mile line and really for good reason they don’t because it isn’t the law.

It isn’t what Congress intended to do back in the day when it admitted California.

The law has developed and the law is simply this and while the Submerged Lands isn’t necessary to show this to the Court and while the Submerged Lands Act has nothing to do with it directly as it was written, the legislative history of the Submerged Lands Act does help illuminate us on this point and the law is this that Congress can be considered to have meant a juridical bay but a juridical bay they must have known was a bay that didn’t have any fixed line that a juridical bay is subject to changing of a fixed line.

It’s a dynamic thing.

It’s not a static thing and that’s what Congress meant when they were talking about establishing a line in a Submerged Lands Act that would define inland waters, demarcate inland waters from high seas.

They said, “We will leave this matter where we found it.”

They were thinking at one time of using the word “bays” and as the Court will recall, the intention of Congress whatever the result actually was in the Submerged Lands Act, the intention of Congress was to do this was to give the States back the territorial sea, the three-mile belt and the to make very sure that the doctrine that was enunciated by this Court in U.S.A. versus California was not sign of things to come and he went on and he talked about other navigable inland waters and they talked about the entire bay and at the suggestion of the U.S. State Department that pointed out to them, that these concepts had changed and they were subject to change and that it would embarrass the United States if Congress would try include a whole bay if Congress withdrew but by withdrawing didn’t mean that they intended to establish that in so far as any State was concerned Washington or Alaska or California that its inland waters would be fixed by 10 miles.

If that had any validity, the United States would be cleaning here today that no one of the several coastal states could have any greater inland waters than a line that was drawn or could have been drawn at the time it was admitted into the Union.

Byron R. White:

(Inaudible) that in the part of United States to recognize that the inland waters of the State were subject to change or their boundaries were to change?

George N. Hayes:

Well, I think the Congress recognize that Mr. Justice, that the inland waters of a state were not to be fixed as they were in 1953 that is if we take —

Byron R. White:

Well I’m just saying that isn’t very clear — I don’t understand why United States that if we’re going to take that we could argue that all of states having the six-mile closure, I would think the United States could well recognize that inland that that’s the idea of the bay of the changing concept, that it changes the jurisdiction of the State enlarges too?

George N. Hayes:

Oh, but they’re saying just the opposite here.

If they were — that I think is the law.

I — I think that it is the law and should be law but the United States isn’t seeing that.

The United States is seeing and their position is inconsistent.

Their present position is inconsistent with past history on the part of the U.S.

The United States is saying Mr. Justice that now in 19 —

Byron R. White:

Oh, I think the United States is saying 10 miles because that is the position of the United States now.

George N. Hayes:

Not now, it’s 24 miles.

Byron R. White:

Well, not if the — not as regards of — it has never implemented this matter has it?

George N. Hayes:

Oh!

Yes, very much so.

They say so in this case that the line shall be what they suggested to the Special Master that is 10 miles and they have said so in the case that they have filed against us in Alaska which is why we’re appearing here, that when the United States Executive extends the line of U.S. inland waters outward to the sea as they have done now that it does not inure to the benefit of the States.

We say that it does as the court has indicated it is.

Thank you.

The position of United States (Inaudible)

George N. Hayes:

That’s correct Your Honor.

That’s the U.S. stand and that’s the U.S. position and here is why I think it’s an ill —

Arthur J. Goldberg:

(Inaudible)

George N. Hayes:

Yes.

Because the Submerged Lands Act of 1953 doesn’t fix any lines nor does it enlarge any boundary lines of the States.

And it doesn’t do it for this reason that the Submerged Lands Act was enacted for one purpose, to give to the Coastal State not inland waters.

It wasn’t enacted with that in mind but to give them this body of water, the territorial sea.

In fact, the case of U.S. versus California wasn’t even concerned with inland waters.

The only concern of that case was title for this here and so the Submerged Lands Act gave back to the several states this.

Now, the Submerged Lands Act couldn’t constitutionally operate to restrict a State’s boundaries because if the Submerged Lands Act Operates as a restriction of State’s boundaries I think to that extent it’s unconstitutional and it can’t do it.

For instance, Your Honor, let’s say, here is a bay that is any number of miles wide at the natural entrance point and that in 1951 when the United States was urging 10 miles on the Special Master, I want to say this, that the natural entrance point is 11 miles.

Now, in 1951, the Special Master took cognizance of this matter but let’s say the 10-mile line which the U.S. was insisting on as the one that would demarcate California inland waters from high seas which is at that time U.S. inland waters too, the distinction 10 miles.

Now, let’s say that in time accretion occurred here and narrowed this to nine miles.

Now, the United States in the absence of the Submerged Lands Act would have held and would have asked the Special Master to find this line demarcated the inland waters from the high seas but now the United States since the passage of the Submerged Lands Act says this, that the Submerged Lands Act operates to fix the inland water line as it was in 1953 and let’s say this occurred, this operation of accretion occurred in 1955 and that in ‘53 it was 11 miles.

If the United States is correct, here is the line that California must now have as a result of the Submerged Lands Act whereas without the Submerged Lands Act, California’s boundary would have gone here up to here.

In other words, the Submerged Lands Act operates to restrict a state’s boundaries and Congress cannot restrict state boundaries unless the state legislature agrees to do so.

It would be unconstitutional.

The Submerged Lands Act didn’t grant the States anything but this three-mile belt.

It didn’t grant them any title to inland waters already considered inland and within their territory because they had that as an attribute of sovereignty.

They had that since Pollard’s Lessee versus Hagan at least.

All it did is operate on this and it did not operate on the inland waters.

Byron R. White:

Nor did it extend seaward, the outer boundaries of the inland waters.

George N. Hayes:

No, it did not extend seaward, the outer boundaries of inland waters.

It had nothing whatever to do with inland waters.

George N. Hayes:

Inland waters are defined by something different and apart from the Submerged Lands Act and their location has nothing to do with Submerged Lands Act.

Byron R. White:

Well, it may be that wholly aside from the — there is this issue wholly aside from the Submerge Lands Act as to what should be the consequence of an evolving idea about bay?

George N. Hayes:

I’m sorry about a what?

Byron R. White:

About a bay.

Wholly aside from the Submerged Lands Act there is this issue of what should be the effect of changing ideas of what a juridical bay.

It might be 10 miles some time and 20 miles some other time and that is an issue with this case I gather.

George N. Hayes:

On this point, Your Honor —

Byron R. White:

Wholly coincides with Submerged Lands Act.

George N. Hayes:

On this point it’s entirely correct.

In fact —

Byron R. White:

You had the same argument that there had ever been a Submerged Land.

George N. Hayes:

That’s right.

In fact the Submerged Lands Act quite our view has nothing to do with it.

What the court said is the issue is the issue on this point, what is a bay?

And what happens when the line goes further out and it has nothing to do with Submerged Lands Act?

And I think the court has presently even followed.

Byron R. White:

But they remain — the point of the United States of America what it said by treaty has never exercised any jurisdiction or attempted to as against foreign countries over any waters outside the 10 mile closure line.

George N. Hayes:

It does today.

Byron R. White:

How does it do that?

George N. Hayes:

By recognizing and this is present foreign policy of the United States.

The United States views the law today to be that U.S. inland waters are now closed not by a 10-mile line but by a 24-mile line.

Byron R. White:

What’s that evidence?

George N. Hayes:

The evidence of that lies in expression by the Secretary of State, there’s an expression of that in a letter that he gave to the Attorney General of the United States which was to be filed in the case of the United States versus Alaska in the District Court in Alaska, January 15, 1963 in which he says that he considers that the 24 miles is now the best evidence of international law as to what the closure line between inland waters and high seas shall be.

That’s exactly why the case was brought in Alaska was to determine this one in single point.

When U.S. inland waters in large it does it in inure to the benefit of the States and we say that past precedent has it that it does and if there’s no reason to change past precedent.

Byron R. White:

What suit are you talking about?

George N. Hayes:

The United States of America versus Alaska.

That was filed in 1963 in the summer of ‘63 in Alaska.

Byron R. White:

Is that in your brief?

George N. Hayes:

I beg your pardon?

Byron R. White:

That was referred too in your brief.

George N. Hayes:

Yes, it’s referred too in our brief.

Byron R. White:

Is that an original case here or?

George N. Hayes:

No, it was filed in the District Court in Alaska.

Byron R. White:

Between United States and Alaska.

George N. Hayes:

Yes, sir.

United States filed it in the summer of 1963 and that’s why we’re here.

Byron R. White:

An alternative (Voice Overlap).

George N. Hayes:

It’s now in appeal to the Ninth Circuit.

Potter Stewart:

It’s being upheld there pending the decision of this case?

Byron R. White:

I — well, — all the appellate steps have not been finished yet.

The U.S. hasn’t submitted its brief so I don’t know if it’s being held.

But it’s there.

It’s there.

Potter Stewart:

It’s decided by the District Court and it’s on its way or at the Ninth Circuit?

Byron R. White:

Yes, that’s right.

Potter Stewart:

Undecided.

Byron R. White:

Yes.

(Inaudible)

George N. Hayes:

The District Court decision went in favor the United States at the bay enlarger when the — When this line went out that it became U.S. inland waters and that now we have two inland waters.

One U.S. inland waters and one State inland waters or something we’ve never held before but I would like to —

William J. Brennan, Jr.:

Does this have an affect on boundary in your view on the boundary of the State?

Does your position have anything to do when they go to 24 miles?

Does this make the boundary of the State further up?

George N. Hayes:

Yes.

That —

William J. Brennan, Jr.:

And what happens if they go back to 10 miles?

George N. Hayes:

I think if they go back to 10 miles Your Honor we have to recognize this, that what the Foreign Policy of this executive is we’re bound by it and this Court is bound by it and when the Executive determines that whatever the title be in the State or even the United States to seaward lands that if they determine that the full enjoyment of those rights should be dropped back to 10 miles or 5 miles or 6 miles, we have to go along with it.

And I think this point —

William J. Brennan, Jr.:

That action wouldn’t fall within your suggestion earlier that any effort of the United States will affect the boundaries of the State would be unconstitutional?

George N. Hayes:

No, it doesn’t.

It doesn’t conflict at all because as this Court said in the case of — the Louisiana case, the Executive has the full power to determine how far out into our seaward boundaries any particular State can enjoy its rights but it does not have the power to fix those boundaries, only Congress can do that.

And as a corollary to that, this Court didn’t say that but I’m adding it because it’s so true only Congress has the power to fix those boundaries and of course this Court in the interpretation of those Acts of Congress but the Executive cannot fix the boundaries but they definitely can fix how far out into our seaward boundaries we can enjoy them.

Potter Stewart:

That’s a little subtle I mean just subtle.

George N. Hayes:

That was what this Court intended by that —

Potter Stewart:

I can understand — I could easily understand the concept of a dominant servitude or paramount interest in those areas by external to the United States policy or International Commerce and so on but is it your suggestion that the United States by executive or congressional actions could just say California should have no jurisdiction at all criminal or over the fisheries or over anything else in San Francisco Bay?

George N. Hayes:

Your Honor, unless the executive acts unconstitutionally, yes.

The Executive could by treaty, the Executive could when it acts constitutionally within its sphere of foreign policy initiating and executing foreign policy so long as it acts constitutionally and they have great latitude in that can do quite a bit in the way of restricting our enjoyment of rights we might have but for whatever action U.S. Executive might take.

Potter Stewart:

Well, yes.

I suppose then we — so I should put the qualification so long as it’s constitutional but that’s a question I guess.

George N. Hayes:

Yes, well, whether any particular Act that is constitutional has to be.

Byron R. White:

Reconciling the two positions that earlier so whatever the boundaries were of a state constitutes where the Congress can’t affect them.

George N. Hayes:

That the Executive —

Byron R. White:

Well, suppose it wasn’t the Executive.

Suppose Congress will adopt the law which extended this definition of bay for 24 miles.

Suppose that was imbedded in congressional legislation then later Congress appealed that and moved it back to 10 miles.

Could Congress constitutionally to do that —

George N. Hayes:

Well —

Byron R. White:

— in your view?

George N. Hayes:

I think there’s something else that arises here.

If Congress — if Congress grants to a State certain title for instance it has no power over that again to take it back.

Now, if by the exercise of some other power it has over the State, yes it may but simply to take back what is given and out of their hands is going to be a pretty difficult thing legally.

Byron R. White:

But isn’t that — you’re putting something into the case.

Assume that Congress does just happen to grant a strip of land with the water over it to the States and thereby say this is now part of your — of the state land but what about it does is say to foreign countries as regards our relations with you just consider the 24-mile line the division between yours and ours.

Now, that sort of an Act is a wholly different thing than the grant of the State, the grant by Congress to a state.

George N. Hayes:

Yes, it is.

Byron R. White:

What you’re saying though that just the mere recognition of the United States of the 24-mile line as against foreign countries automatically renounced the benefit of the State just as though Congress had granted the land to the States and I think those are rather different things.

George N. Hayes:

No, if Your Honor is to, just as thought that I was saying this and I think that you are correct sir.

I think if Congress just assuming no bay at all, the difference here lies in the fact that there is a bay and that bay it amounts the landlocked waters, locked by the lands of one sovereign California or Alaska.

Now, if Congress attempted to simply grant and here’s the three-mile line.

George N. Hayes:

If Congress attempted to simply grant the State of California lands seaward of the three-mile line without extending boundaries, it just simply grants them title to lands underneath the sea out there.

Do I make myself clear?

Byron R. White:

I don’t think you’re reaching what I was talking about.

It may not have been very clear but it seems to me that if the — let’s just assume for the moment that was wholly clear between the State in the United States what the closing line for a bay was.

And say it was six miles, everybody agreed that’s what a bay is, and then the United States, the next year said to the foreign country, domestically we have a rule of six miles but for international purposes, we’re going to move that line out 24 miles and that will be considered our territorial water.

You’re suggesting that automatically and ipso facto, the State’s boundaries are moved out to the 24-mile line just as though the United States have not only said to foreign countries we’re moving in a line out 24 miles but Congress had enacted the law which is said we are hereby granting to you the following described territory which takes the six-mile line up to 24-mile line up.

You’re saying the two cases are exactly the same, right that there may be a difference between the United States position is against foreign countries and the United States position is against the State, that the State and the United States could very well retain its position as regard to the State and confine the State to six-mile line whereas with regards to foreign countries it deals in the 24-mile closing line limit?

George N. Hayes:

Yes, it could.

There is a difference Your Honor in how the United States in the effect of the United States dealings with foreign countries and the United States dealings with the several states but we’re saying in this particular type of instance —

Byron R. White:

That’s the very necessary part of the State of California’s arguments that is that there is a difference from domestic and in foreign.

George N. Hayes:

Yes.

But what we’re saying Your Honor is that according to established domestic law that in the case of bays and this is not applicable any place else, not applicable in the high seas that in the case of bays that when that line is extended out that the State’s jurisdiction attaches to whatever the United States extends it to.

There has never been historically any difference.

Byron R. White:

But you’ve never — there aren’t any cases like that, are there?

George N. Hayes:

There are three things which I think lead.

No, there are no cases directly on that point.

There is one case which I think is very strong and very important and there are two other developments of the law which I think the Court must take cognizance of in declaring what has been the law in this country.

The one case I referred to is Manchester versus Massachusetts and that case is an 1890 case.

William J. Brennan, Jr.:

That’s in your brief, isn’t it?

George N. Hayes:

Yes, it is.

And they said in that case and they were talking about Buzzards Bay and Buzzards Bay is bay that is enclosed by a line less than six miles long and the Supreme Court of the United States said on page 264 of the reporter, “The extent of a territorial jurisdiction of Massachusetts over the sea adjacent to its coast is that of an independent nation.”

Now, at that time it was six miles and Your Honor this is a case that I think is very important.

It isn’t by itself all that we have.

The United States Government recognized the truth that the Supreme Court declared in this case because in 1951, it didn’t insist to the Master that the Master defined the inland waters at 6 miles which they were in 1850.

It recognize the fact that when the U.S. went from six miles to 10 miles that it automatically inured to the benefit of the States.

Byron R. White:

So your saying at the United States wants to give the States wants to recognize the States right up to 10 miles it must also recognize about 24 miles.

That’s either six or 24 but no 10.

George N. Hayes:

Well, no 10 because there’s no 10 now.

10 is meaningless in 1964.

Byron R. White:

Well, you hope it is?

George N. Hayes:

Well, I think we’re all going on the assumption that it is.

I may be an error I think the U.S. will not dispute that.

Byron R. White:

Well, if it’s meaningless I suppose you win your case but the United States is meaningful enough for you to lose case.

George N. Hayes:

I’m going to assume that U.S. present policy is that there is no 10-mile line.

They’re going to say —

Potter Stewart:

That was their line in 1953 when the law passed?

George N. Hayes:

That’s right.

Byron R. White:

But there’s no 10-mile line — there’s no 10-mile line if we get to foreign countries.

George N. Hayes:

That’s the U.S. position and we’re saying there isn’t even any against us today.

Byron R. White:

Well, yes but that’s still remains with these standards.

There’s nothing to do with this I would think that was the whole thing.

George N. Hayes:

This is what they say.

This is what the U.S. say.

At the same time the question is what Congress is what the purpose of Congress was assuming that basic premise regarding the certs and that is the historic boundaries in sense that California that the limit that it did apply wasn’t the yardstick that Congress can even measure these submerged lands rights by — submerged rights by and this question notes the question of intent.

George N. Hayes:

Well —

What they intended was to be an ambulatory concept or fixed standard as of the time they grant the Submerged Lands Act.

George N. Hayes:

They’re saying it’s a fixed concept as of the time of the Submerged Lands Act.

We’re saying that the Submerged Lands Act had nothing to do with inland waters that it couldn’t have it would be unconstitutional if it attempted to restrict a states boundary.

They’re saying oh no that it did fix that line at 10 miles and we’re saying is this Your Honor that the law has developed to the point where juridical bays do inured to the benefit of the States and that if.

Well, all I’m saying is that the question that concerns you and I can see why it doesn’t necessarily have to decide it in this case.

George N. Hayes:

No, I think if probably it may well be that even if it isn’t decided in this case certainly a Circuit Court will look very much to what this Court says in 10 miles.

You want us to keep our minds open on that question.

George N. Hayes:

We certainly do if the Court decides.

(Voice Overlap) influence this Court of Appeals.

George N. Hayes:

If this Court decides as so far as California bays are concerned and the California Act of Admission the 10-mile applies, we certainly hope it won’t say that and so far as Alaska bays are concerned —

Right.

George N. Hayes:

— because there may be a difference.

The other point that I wanted to make your Honor, the U.S. has recognized as I indicated that the line goes out.

Hugo L. Black:

Your time is up but there’s (Inaudible)

Archibald Cox:

Justice Black and may it please the Court.

Archibald Cox:

My primary effort will be to try to bring into some kind of focus the scattered and often very complicated and technical parts of this case because I think once sees — once one sees the relationship of the parts to each other what are the really critical issues that separate themselves out to a considerable extent from those which are important but are nonetheless details and I find that it’s most convenient if I may to go back to the point of beginning so that we may at least see how we got where we are today.

Hugo L. Black:

I hope that leads to a phase that (Inaudible)

Archibald Cox:

I can’t.

I will indicate the main issues —

Hugo L. Black:

That’s what I meant.

Archibald Cox:

— and I think the parts will hang on them.

There are so many issues that if I attempted to relate them would be like giving a shopping list.

Hugo L. Black:

I’ll be unable to give (Inaudible)

Archibald Cox:

But I think I can explain the main issues and that’s really what I wanted to try to do.

The easiest most convenient springboard is the decision of this Court in United States versus California the original case where the Court held that United States had title to the three-mile strip known as territorial waters or the marginal sea.

It also determined in the decree entered at that ruling that the United States more specifically owned the three or had proprietary rights, paramount rights, in a three-mile strip beginning at the ordinary low water mark where the sea meets the mainland and beginning outside of inland ones waters.

Those two components of course make up what we now call the coastline and what’s described as the coastline in the Submerged Lands Act.

Just where this three-mile strip to which our title was quiet was left undefined except as the Court used those terms, outer limit of inland waters or outside inland waters and ordinary low water.

But now the consequences of course of that was that the farther out California could push the outer limit of inland waters the more oil she would get to put it specifically, and the farther in we could push them, the more oil we would get.

And it’s not surprising that under those circumstances that dispute immediately arose as to where — as to what was meant by these two phrases.

Even the ordinary low water mark gave rise to a dispute and was even more dispute about what is the outer limit of inland waters.

At that point, the case was referred to William H. Davis, a Special Master.

There were a series of motions in the Court and as the issues ultimately took form there was submitted to him seven representative segments and he was instructed to determine whether the waters of those segments were inland waters or not inland waters and to lay down general criterion, the general criteria by which he judged those specific illustration and which it was contemplated could then be used for the rest of the California coast.

In addition, he was to set forth the criteria for the determining what was the ordinary low water mark on the shore.

He made a report in 1952 that the late ‘51 or ‘52, in which he determined that virtually all the disputed areas were not inland waters.

In other words, the Report was overwhelmingly in favor of the United States.

At this point, Congress enacted the Submerged Lands Act just very shortly later and gave to the States, I’m speaking generally and not attempting to beg any of the questions, gave to the State at least the three-mile strip beyond the coastline.

And as a practical matter and this is the answer — part of the answer to the Court’s question why the delay, as a practical matter at that stage that gave all the oil and the royalties to California.

This is very deep water off the coast there and the methods of drilling at that time was taking course of getting oil did not permit or at least did not make it economically feasible to drill farther down and so that nobody was really interested in determining as I understand it I wasn’t here, what was the limit of inland waters or what was the limit, if I may put it that way, of the three-mile strip?

There were other reasons, I think, that explains the delay.

I’m told one of them was the case was here and exceptions before the Court and the number of lawyers handling it assumes that the next move was the courts and now that hardly explain to full 10 years but I think it enters into it.

There were conversations between California and the federal officials which are related in some detail in papers attached to our supplemental complaint.

We put some what different interpretations on them but at least they show that there was a talk and I suspect that that talk catch up on that.

Perhaps, these are also matters that are intensely complicated and just the time went by in doing anything about it when there was no urgency.

Now, I might at this point answer one other question that I think Justice Harlan raised.

Archibald Cox:

There has to the best of my knowledge and I am quite sure I would know Justice Harlan there has been no problem with the State of Texas.

Alright, there had very recently been some problems of a rather different character but some prevalence come up which Florida and the United States are currently discussing.

They have arisen very recently.

So far as Louisiana goes, there is a very real problem and there is an enormous amount of some amount of money tied up in escrow.

We have been discussing this actively at least for the last 4 years.

What the next step will be I’m not able to say.

So far as Alaska is concerned, the problem has forgotten to take shape as a result of disability to drill in deeper water and you have heard reference to one case which insisted should be brought in the District Court rather than here just to see if we couldn’t get some of the things settled before troubling this party.

William J. Brennan, Jr.:

Incidentally, Mr. Cox , do we get the problem of getting oil in deep waters?

Archibald Cox:

Well, they are — they are optimistic enough.

Yes, this has become real.

There are companies that would like to bid now in the area which is, will be determined by this dispute and indeed I believe there are a few course that have been taken under license from California under what we claim is our land.

But that’s — I don’t think that’s a serious problem it is something that we want to open up and there are several oil companies that are definitely interested in it.

That of course is what brought the thing go ahead otherwise it was just a water of flotsam and jetsam at most.

Byron R. White:

Mr. Solicitor General, I don’t ask for any detailed answer at all.

Are these used in the Louisiana case somewhat somewhere to those here or are they related at all?

Archibald Cox:

They are very closely related.

That’s all.

Some of the rulings that the Court might make here would seem to give us some principles for the Louisiana case.

Also, there are argument as presented to me and I’ve been conducting the negotiations with them has rested on primarily on rather different principles that I understood Mr. Keatinge directs primarily.

Of course, everybody rests on anything you can find but it will help clarify it I should think.

Now, the enactment of the Submerged Lands Act, under the theory of the United States is what the Submerged Lands Act did was convey to the State title to this three-mile belt, did not really change the essential issue between the United States and California as we saw it and I just want to explain what our theory was without arguing at this point, as we saw it, the outer limit of inland waters, I’ll forget the ordinary low water mark from now on the outer limit of inland waters previously marked the division between California’s property and our property.

After the Submerged Lands Act —

Potter Stewart:

You’re talking about the underlying real estate?

Archibald Cox:

That’s right the underlying real.

After the Submerged Lands Act was passed, California owned on both sides of the outer limit of inland waters and the question and that line the outer limit of inland waters but can the baseline from which you measured three miles but there was no dispute about measuring the three miles and the question as we saw it still was where is this outer limit of inland water is located.

William J. Brennan, Jr.:

And that depends on where the Coastline.

Archibald Cox:

That is part of the Coastline.

The definition of coastline is made up of the two components outer limit of inland waters and ordinary low water.

Since that was our theory, we filed a supplemental complaint thinking that the Special Master’s Report was still relevant that the evidence was the issue on the point and that the case was ready to go forward, and while I assume this Court didn’t make a final determination on any of those legal issues at least thought it was enough to it to prevent us to go forward.

And then no exceptions were filed to the Special Master — Master’s Report and that brought us here.

Archibald Cox:

Now, to my simple mind in thinking about the areas of dispute, I found it best to start with the map of California instead of all these details and I could find out where what we’re talking about was located.

And we have set forth on these colored maps that I have asked the clerk to distribute, a map which indicates in very general terms what is involved actually here and what it means by way of principle as we see it with respect to other the parts of the coast.

Now, the areas that we concede clearly belonged to California and so stated in this litigation are in the heavy dark blue.

In other words San Francisco Bay which is clearly a bay for any number of reasons in international law what is the two miles or something at the Golden Gate, San Diego Bay which is way down the lower right hand corner a three it’s not marked but it is you see there is a heavy blue line down there the very limit.

And then a three-mile strip along the coast and around each island separately.

We agreed that the heavy blue lines along the California.

The light blue line running up along the Northern Coast is what we would say clearly that will go to California under the principles we advocate, that again is a three-mile strip following the sinuosities of the coast.

What California claims in this litigation is set forth in the heavy river?

You’ll note up at the top of the map is Crescent City Bay which you will see mentioned in the Master’s Report and discussed some in the briefs.

Actually there is no longer any argument about Crescent City Bay, we may disagree as to the reasons but we’re pretty well agreed as the area they can get and I don’t think anyone suggests that court need to worry about Crescent City Bay even though it was one of the segments coming on down you’ll find the Monterey Bay just below the middle of the map.

Then one comes down to San Luis Obispo Bay which one of the segments and finally to the so-called “overall unit”, that the California briefs talk about which I will describe as the area south of Point Conception and with respect to which California has a number of claims.

Those other claims of California are shown on the blanket pipe map that I asked to have distributed which has taken one of their exhibits.

I’m not going to trouble the Court to go into those details now there are a number of receding claims that California makes and we will have to go through them later.

But so far as the overall case goes, I think for the moment we can just say there is this overall unit south of Point Conception.

Potter Stewart:

I’m not sure I quite follow going back to the big California, the dark blue?

Archibald Cox:

It’s what we say belongs to California?

Potter Stewart:

And how much width does that have along the coastline?

Archibald Cox:

Three miles.

Potter Stewart:

Well, then what’s the light blue got?

Archibald Cox:

The light blue is simply this.

You see the case has not this far had brought to at issue the whole coast.

Potter Stewart:

Yes.

Archibald Cox:

The light blue represents simply my and not California’s — my projection of what I think some of California’s claims would lead to.

It’s in other words —

Potter Stewart:

Light — light blue now I’m talking about light blue.

Archibald Cox:

Oh!

I’m — that’s light pink.

Potter Stewart:

Right.

Archibald Cox:

I’m sorry.

Light pink.

Archibald Cox:

Light blue is what we with the wave of our hands they belong to California.

Potter Stewart:

Now, why?

Archibald Cox:

It has the three-mile strip.

Potter Stewart:

Well, you said the dark blue was three miles.

Archibald Cox:

It is too.

You’ll note that they don’t — they just applied to different segments in the codes.

Potter Stewart:

Maybe I’m color blind.

Is this black or dark blue along here?

It seems to be a dark blue segment?

Archibald Cox:

Oh, no.

That’s the — that’s the black line of low water mark, Justice Stewart.

William J. Brennan, Jr.:

You just used the dark blue and the seven segments.

Archibald Cox:

And San Francisco Bay.

William J. Brennan, Jr.:

And it could be that the California might not take you generous enough.

Archibald Cox:

Quite right.

William J. Brennan, Jr.:

How many light —

Archibald Cox:

That’s right.

Some of the — they could claim we — that this is just an effort to give —

William J. Brennan, Jr.:

I know but something that looks like bay for example just above San Luis Obispo Bay.

I don’t know what it is.

Archibald Cox:

Well that’s why there’s the light pink there because that shows what we think they would like.

William J. Brennan, Jr.:

So even the Government’s generosity may not be generous enough.

Archibald Cox:

That’s correct.

Justice Stewart, let me see if I can.

There is no dark blue line between Monterey Bay and San Luis Obispo Bay.

Potter Stewart:

I see that’s black and —

Archibald Cox:

That is black.

Potter Stewart:

Alright.

So what you can see is simply three miles out from the configuration of the low water mark — mean low water mark of the coastline.

Archibald Cox:

Plus San Francisco Bay —

Potter Stewart:

Yes.

Archibald Cox:

— San Diego Bay —

Potter Stewart:

Yes.

Archibald Cox:

— Crescent City Bay —

Potter Stewart:

Oh.

Archibald Cox:

And —

Potter Stewart:

A little bit of San Luis Obispo Bay.

Archibald Cox:

No, I don’t think so.

Potter Stewart:

Well —

Archibald Cox:

None have said but a little bit of San Pedro Bay.

Potter Stewart:

There’s a dark blue there, unless I mean —

Archibald Cox:

Well, I’m afraid that is a blurring — well, it may be I’m told there may be a bit up there.

Potter Stewart:

Now, — and then now around these islands —

Archibald Cox:

Three miles.

Potter Stewart:

Well now why — I think that would be light blue but perhaps —

Archibald Cox:

Not because the islands — well, I thought this would be helpful I’m beginning to think it’s the reverse.

The light blue, the dark blue is defined to the matters that have been specifically mentioned thus far in these proceedings either before the Master wrote here.

The light blue is simply a projection of the rule.

William J. Brennan, Jr.:

(Voice Overlap)

Potter Stewart:

You can see that they are following those rules?

Archibald Cox:

That’s right I see.

Another reason San Francisco Bay and San Diego Bay are mentioned is because of whether there’s the specific stipulation about it which we hope the Court would someday file.

Potter Stewart:

And this other thing that I first saw was dark blue is black, it has nothing to do with it?

Archibald Cox:

That’s correct.

Potter Stewart:

Right, thank you.

Archibald Cox:

Now, I would like to come to a specific legal starting point as we see it or perhaps to set the basic framework of the case.

William J. Brennan, Jr.:

Excuse me, before you leave map will you be coming during the argument.

Archibald Cox:

I shall.

William J. Brennan, Jr.:

Don’t do it now because the pink — the light pink and the significance and so forth?

Archibald Cox:

Well, they did — it is purely illustrated with some of the application of the rules for which California contends, I will mention it when I come the specific rules.

William J. Brennan, Jr.:

So — yes, I noticed the caption is that this will result in a straight baseline principle.

Archibald Cox:

Well, that’s one of the principles that California relies on.

William J. Brennan, Jr.:

But isn’t — unless there was only application of that one.

Archibald Cox:

Yes.

William J. Brennan, Jr.:

Alright.

Archibald Cox:

Yes.

They may have some other theories but that’s all this illustrates.

California’s title must come as I see it from one of two sources.

Either it must come from the role of the Pollard and Hagan.

Substantially unaffected by the Submerged Lands Act or it must be derived from the Submerged Lands Act.

Now, so far if we take the first possibility coming form Pollard and Hagan then it seems to me that the question before the Court now is identical, indisputably identical, with the questions before the Special Master.

In other words, the question would be how much of these waters was inland waters and California to get the disputed area must show that everything within three miles of it was inland waters?

By inland waters, at that time, it was understood to me the area over which of the literal nation claims the same sovereignty and it would claim over land areas same exclusive sovereignty over it as against foreign nations.

And this was —

Potter Stewart:

At that time you mean at the time of the Pollard decision or –?

Archibald Cox:

At the time — no when it was before the Special Master.

It was agreed then that that’s what the impression meant.

Potter Stewart:

In 1950?

Archibald Cox:

Yes.

It contrasts the phrase inland waters with the term territorial sea which applies to a three-mile outside inland waters and which differs chiefly in the merchant vessels of foreign nations have a right of innocent passage over the three-mile strip, the territorial sea or the marginal sea which they don’t have inland waters.

In other respects, they’re substantially the same.

Indeed, I would be hard put to it to name any other respect in which they differ.

These questions I suggest are unaffected by the Submerged Lands Act in any way.

Now, the second source of California’s title as she claims it may be or is under the Submerged Lands Act and as I said a moment ago even under the –or as I’m about to argue, even under the Submerged Lands Act, California’s whole claim to anything beyond the three-mile belt depends on pushing out the line of inland waters and by showing that the areas previously in dispute are inland waters within the meaning of the Act.

The critical question in those words as we see it even under the Submerged Lands Act is, what is the meaning of inland waters in that statute or more correctly what is the meaning of the phrase, the seaward limit — the line marking the seaward limit of inland waters in Section 2 (c) of the Submerged Lands Act?

I’ll come to the language in just a moment.

I want to dwell on this just a moment because it does seem to me that the California’s briefs are thoroughly confused the issues.

Sometimes they agree that’s the issue and other times they seem to have a different definition of the issue and this is so essential to our whole case and I think so essential to an accurate analysis of the case that I want to stick on it for just a moment.

At Section 3 (a) of the Submerged Lands Act which is printed in the appendix to our brief beginning at page 3 (a) it’s probably about 20 pages from the end of the brief.

It follows very quickly at page 183.

Archibald Cox:

Section 3 (a) conveys and confirms to the States title to and ownership of the lands beneath navigable waters within the boundaries of the respective states.

Then Section 2 over on the opposite basic case defines the meaning of some of those terms.

Section 2 (a) (2) provides that the lands beneath navigable waters means, all lands permanently or periodically covered by tidal waters up to but not above the land of mean high tide and seaward to a line three geographical miles distant from the coastline of each such state and to the boundary line of each such state where in any case such boundary as it existed at the time such state became a member of the Union are heretofore approved by Congress extends seaward or into the Gulf of Mexico beyond three geographical miles.

Now, Califor — a permissible reading of that would be that the line goes either up to a point three miles distant from the coastline or on to the boundary even if its farther away or I presume that it could mean that the stopping point was within both —

Potter Stewart:

Was — was what?

Archibald Cox:

— I would if — was within both means that you couldn’t go beyond either the three-mile line nor could you go beyond the boundary line.

The alternative reading would be you could go to whichever was farther out.

California says in their closing brief, it is clear — that’s on page 11, it is clear that Section 2 (a) (2) restricted the maximum area of submerged lands restored to this date to those situated, “3 geographic miles distant from the coastline.”

Well, we have no trouble with that reading.

I do emphasize, however, that if you read it that way and that we think is the net effect for another reason, that if you read it that way, it is necessarily a limit upon historic claims.

Now, it doesn’t matter whether the historic claim goes farther if what the Congress confirmed was only, was limited to three miles seaward from the coastline and this must be kept in mind.

Potter Stewart:

Maybe I’m completely misunderstanding what you’re saying because I must be because that was all decided in the United States against Louisiana that it was then conceded that if three miles are to the boundary of the State whichever — the historic boundaries of estate whichever it was.

Archibald Cox:

Well, I’m — but that was because in Louisiana case this was specific reference that you could go to the historic boundary up to three leagues.

See there’s another section of the Act that is applicable to the gulf that says you can go up to three leagues.

Potter Stewart:

Up to three leagues I see.

Archibald Cox:

But I’m quite prepared Justice Stewart and I am in danger of misleading the Court here.

I’m quite prepared to assume that on the basis of what I have read California’s interpretation is wrong.

I’m quite prepared to assume that on the basis what I have read thus far, I could read some more that it could be read either way and would be a debatable question.

Indeed, the fear was expressed before Congress and maybe that somebody would read this as permitting you to go to historic boundaries without limit and there were a number components of the Act to express that fear and as a result there that was put on by amendment rather late in the debate on the Act, the closing part of Section 2 (b) down at the bottom of 2 (a) of my appendix which says, “But in no event shall the term ‘boundaries’ or the term ‘lands beneath navigable waters’ be interpreted as extending from the coastline more than three geographical miles into the Atlantic Ocean or the Pacific Ocean or more than three marine leagues into the Gulf of Mexico.”

Now the plain meaning of that is that the historic boundaries are cut off at three miles and I think that that is the general tenure or three leagues in the gulf but in any even that it is a limitation upon any historic claim.

Potter Stewart:

Geographical miles what we used to call sea miles, 2000 yard miles?

Archibald Cox:

Yes.

Potter Stewart:

Rather than 1760 yard mile?

Archibald Cox:

Yes.

Right and the league is three-and-a-half miles or is it not three, although, I felt that.

Byron R. White:

Well, is this Section and Mr. Solicitor General the assumption behind the limitation is that the Submerged Lands Act did intend to proceed on the historical boundaries or at least there was a danger that it would be so —

Archibald Cox:

Well, I think this was put in to meet the danger that the people would think up new claims to historic boundaries to extend them without limit.

It was — it was to meet the argument that we may be giving anything that any lawyer may come along and later claim he has a historic basis for showing.

Byron R. White:

So the historical argument then would — the State could claim that historically you could go out in the ocean forever but also it you claim that historically its coastline was in a certain place.

Archibald Cox:

Well, then that brings us on —

Byron R. White:

Whatever its — whatever its boundaries are?

Archibald Cox:

That brings us of course to a point that I would have to discuss in a very few minutes and now discuss at length and that is what is the meaning of coastline or more precisely inland waters because while we have the statute in front of us, you’ll note that coastline in Section 2 (b) that I just read is not left to interpretation.

It is defined over on the next page in the next subsection.

The term coastline means the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters.

Byron R. White:

You’re just suggesting though that seaward limit of inland waters might pick up a good deal and meaning from the history and the Congress intended to recognize the historical boundaries of States?

Archibald Cox:

Well, I think that I would not dispute that that was a factor that Your Honors would have to take into account in interpreting inland waters.

I would suggest and I’ll dwell on it a little more later that it does, it has the effect of sort of taking away the very limit that had just been put on by the closed —

Byron R. White:

Well it would move — well it — all it would do is move the line, the beginning line out from three miles?

Archibald Cox:

Yes, but if you move it out to what was the state’s historic boundary the point three miles from there will never cut off anything that could be claimed as part of any historic boundary.

Byron R. White:

That would be true if the State were claiming historic boundary out in the ocean but what if it just says look our boundary was always our coastline, our boundary has been nothing but our coastline.

We have never claimed anything out there but all we’re saying is that now that Congress has given us the three miles out in the ocean we claim the major from our historic boundaries.

Archibald Cox:

Well —

Byron R. White:

I think that’s California’s claim.

Archibald Cox:

I suggest and perhaps I can deal with it better when we get in context.

I suggest that the critical point is must always be a reference back to what is within three miles of inland waters.

Byron R. White:

I agree with you.

Archibald Cox:

Right.

Well, if I can just stem us that for now I would be quite content because I do think that this means several things.

It means that the historic something has got to be historic inland waters and not a historic something else.

Byron R. White:

Well, it can be a historic boundary.

Archibald Cox:

Well, one still would have the gap as to whether inland waters means historic boundary.

Let me turn — let me outline my argument beyond this point because it brings me I think to the point that you’re referring to Justice White.

My argument now proceeds in the four main steps.

First, directing ourselves to the meaning of inland waters in the Submerged Lands Act, the outer limit of inland waters which we say must be the point of reference to any claim based on the Submerged Lands Act.

We say first that the Congress made the grant in terms of a line drawn three miles from the coastline and the seaward limit of inland waters because those concepts were familiar to Congress at the time it enacted the statute as a result of the entire litigation over the title short while and because they were the terms used in this Court’s decree in the United States against California.

In other words, we say that there was an intention to refer to the very concept that had been used in the argument of this case.

Now I’m just outlining these points for the moment.

I’ll go on and try to demonstrate them later.

Potter Stewart:

As a matter of terminology of words, I had understood that the word or the phrase coastline included the outer limit of inland waters that it included two things, the mean low tide of the shoreline plus the outer limit of inland waters.

Archibald Cox:

I shouldn’t have used the conjunction and I misspoke myself.

Archibald Cox:

Outer limit of inland waters is part of the coastline Your Honor is entirely right and it would have been enough for me to say coastline.

I was attempting to emphasize outer limit of inland water that was all.

Potter Stewart:

I didn’t mean to quibble but I think the words duly come —

Archibald Cox:

You’re quite right, you’re quite right.

I appreciate it.

Now, our second part having shown first that the intent was to refer back to the usage previously in the litigation.

Our second point is to show that inland waters as used in this Court’s decision and in the decree was used to describe those areas which were inland waters for the purposes of external sovereignty of the United States in the sense that the United States would or could exclude all nationals of foreign nations.

Now, I point out that if those two propositions are established then it becomes immaterial whether this are some California title is the Pollard and Hagan theory or is the Submerged Lands Act because the two come together and the Congress used the term inland waters in the same sense that, we say, that it was used in the original case of the United States versus California and we go on to discover what that single term meant.

Our third point directing ourselves to that term, what will be that the State Department’s representations as to the rules to limiting what the United States will regard as inland waters for the purposes of external sovereignty are conclusive but we also say that the representations made in this case by the State Department printed in the back of our brief do in fact conform to what have historically been the rules applied by the United States in determining what are inland waters for the purposes of the external sovereignty.

And then my fourth point proceeding on from those will be that as the Special Master for the most part found, the disputed areas are not inland waters under the rules applied by the United States in the conduct of its external relations and that of course will bring me to the specific rules that applicable to the detail of the case.

William O. Douglas:

In inland waters was not defined in the submerged land?

Archibald Cox:

No, it was not.

It was — I will show in a moment.

I think I can show, I certainly argue that it was used deliberately to take up the meaning that it had been used in — previously in the litigation between the United States and California and in the other decisions of this Court.

Now, I’m going to try to develop those four points in the ordering by Judge Stevens and our first point as I say is that inland waters is used in Section 2 (c) of the Submerged Land Act in defining one segment of coastline in the same sense that it was used in this Court’s prior decision and in the decree in United States against California.

First I’d like to say just a word about whether this case involves a question of domestic or international law.

In one sense, it most clearly is a problem of domestic law as this Court held in United States against Louisiana.

I take it if Congress wants to, it can divide up as Mr. Keatinge said the continental shelf as between the United States and the States in anyway wants to.

I can’t agree that it has hardly a ripple on our international relations because we have that decision cited against us by Mexico quite often but it certainly is within the power of Congress and I’m not attempting to reargue any part of that principle.

But it is also possible for Congress in settling a domestic question to refer, the reader as it were, to concepts from other areas of the law.

I find it helpful here to think of the problem we often have in determining what is the federal rule applicable say to a question of interest on a note owing the United States that the federal rule is the law of whatever State you’ll have to be in for many purposes and so here Congress in enacting this Submerged Lands Act could refer the Muslim law or Roman Civil Law or as we think it could do to a concept that had meaning in international law.

And if it did refer to that concept, which of course I had to demonstrate, then the case must be decided in terms of the rules that apply in administering that concept and they would be the rules of international law being used for a domestic purpose and as if they were domestic law.

Now, we say there are four reasons for concluding that the term inland waters is used in Section 2 (c) of the Submerged Lands Act to describe those waters over which a nation asserts in its international relations the same exclusive sovereignty that it would assert over land areas in contrast with territorial waters where its sovereignty is subject to some limitations.

In the first place, this was, we think, the only normal natural use of the term inland waters in 1953.

The place where called concept was important, except for a few insurance policies was in external relations and it had almost no importance in terms of internal relations.

Furthermore, by 1953, the rules for determining what were inland waters as a matter of external relation what were fairly well known although not crystallized upon all points.

Our second reason is, California doesn’t offer any determinable alternative meaning for inland waters.

I have not seen in the briefs or heard here anything that I would call a definition of inland waters but she does say that inland waters are those areas which the States always thought were inland waters.

Now, with due regard to the concept of the State’s historic boundaries but the States never thought in terms of inland waters.

Remember the state’s historic boundaries extend beyond inland waters.

Archibald Cox:

They extend three miles out to the limits of the territorial sea, alright, and the States really had no occasion ever to think in terms of inland waters.

Unless you got to accept as you might get a question, I overstated a little too much, except as you might get a question of why there’s something say outside of one of these claimed bays was in three miles of the closing line.

Then she would have to think about whether the bay was inland waters but apart from that State hardly ever thought in terms of inland waters.

Potter Stewart:

But the exception — that’s the kind of cases that did arise, isn’t that true, these criminal cases and control over the fishing operation in the Monterey Bay and so on?

Archibald Cox:

No.

But well — she had, had to close — claims at these areas where at least territorial.

Potter Stewart:

Territorial waters.

Archibald Cox:

She did have to claim and the parts did in the two cases did reason in terms of whether it was — the bay that was inland waters?

Yes, but the things — the other things the State does normally aren’t in those terms.

Our third point and much the most important reason for giving the term the inland waters, the same international meaning which it has in the prior decree in this case is that that is the sense in which the term was consistently used in all discussions of the ownership of submerged lands about outside and inside Congress up through the enactment of the Submerged Lands Act.

In the original case in the complaint, we said that we were talking about the area outside inland waters and we referred to them in terms that made quite clear that we were referring to international concepts.

The brief even explained that we were defining inland, using inland waters as a term that was important in our international relations and if you remember the opinion the Court frequently uses the term inland waters.

In the course of an opinion which was reasoning about the importance of the three-mile strip in terms of our external relations.

Well, now if the critical thing with our external relations over the three-mile strip obviously where the three-mile strip is, is equally impart in terms of our external relations because you do things to people at places without doing abstraction and the final decree then goes ahead and uses the term inland waters but without any further elaboration.

Now, the case went back to the Special Master, the United States, California and the Special Master all agreed that the term without any argument, that the term inland waters was used in the sense that it had in our external relations.

The Master said on page 6 of the Report, “The parties agree and recognizing that the determination of the demarcation line which inland waters end in the marginal sea begins also determines the exterior limit of the marginal belt.”

And therefore involves a question of the territorial jurisdiction of the United States as against foreign nations i.e., a question of external sovereignty and then he goes on to talking about finding answers appropriate answers to these questions of external sovereignty so that at least in the discussion in the case, that equally in the other cases, the Louisiana and Texas cases comparable to the original United States against California, inland waters was used by everything to mean the concept that was important in our international or external relations.

It seems to me, it’s just a matter of common sense if we had no other evidence, it would be absurd to suppose that at this point the Congress suddenly used inland waters in a new and wholly different and undefined and indeed unexplained sense because nobody explained what he meant by inland waters or anything different that had been meant in the discussion up to this point and as a matter of fact the Report of the Special Master was before Congress, it was known by Congress I think it was even credited from the record of the some of the hearings so they were entirely familiar about how California as well as the United States Master had used the term inland water.

Now, it’s not necessary here for us to rely on speculation or common sense as I called it a moment ago on this point, the legislative history shows affirmatively that Congress used the words coastline and the segment of it inland waters for the very purpose of drawing upon the concepts embodied in the Court’s previous rulings and I rely on two sorts of things for that.

At first there are many specific instances of that usage collected on page 18 of California closing brief.

There, she refers the Court to a number of amendments which would have had the effect of restoring to the gulf states so much of their area as went out three miles from the coastline.

These were amendments offered by Senator Anderson, Senator Lehman and the group of Senators who were fighting the Holland bill and the more extensive grants to the element they went through and of course they were trying to cut back the Gulf States which were claiming out three leagues.

Their amendment spoke of three miles from the coastline and they explained that one of the reasons for those amendments was that this would put the outer limit of where the States could go at the outer limit of the United States for international purposes.

Now, of course those amendments were defeated and the defeat makes it quite clear as this court held in United States against Louisiana that the outer limit of our international boundary is not the outer limit of what Congress might give or might have given or in that case did give the State but the defeat, I submit, was not attributable to the fact that these amendments used inland waters are coastline, coastline in an international sense.

The reason they were defeated was because they took away six miles of what the State hope to get and that was certainly reason enough for defeating those amendments.

I think it’s most implausible just it follows that they were defeated simply because they used coastline plainly in the sense that is used in international relations.

Now, the intent of Congress is revealed even more clearly in the discussions concerning proposals to define inland waters with greater particularity.

One proposal of which was offered by a witness before the Senate Committee and which is referred to in California’s brief was to define coastline as the line asserted by the United States as marking the seaward limit of its inland waters in respect to estuaries, parks, harbors, bays, channels, straits, historic bays, sounds or other bodies of water along the coast.

There was a lot of objection to that proposal, some of it from the State Department and eventually the proposal was not adopted by the Committee.

California tells us that this was a done as Senator Cordon explained because we might be putting the United States on record with the precedent which we intended to apply domestically but which might be applied internationally but as you take the trouble to check, you will find quotation which California puts an immediate juxtaposition with the proposed amendment that I just read came 20 days and a thousand pages later in the course of the hearings and that the point to which Senator Cordon was talking was something quite different.

Archibald Cox:

He was talking to a proposal of Senator Long.

What had happened was this, the bill had originally included after the words inland waters or coastline in conjunction with them a string of words straits, parks, harbors and so on and so forth and that had been deleted.

Senator Long wanted to put most of it back in.

Senator Cordon was explaining why it had been deleted by the Committee and why he was opposing Senator Long’s desire to get it back in.

His desire of course is to increase his claim to bays and help Louisiana push inland waters out and it was at that point that Senator Cordon said, gave this explanation and he also said it was not the Chairman’s view that we were attempting to draw a line to limiting inland waters but that we were using a term that is well-known in the law and is defined by the Court in the California case, I assume.

So quite clear that he wanted to take the same simple term that the Court had used and put the matter down where the courts have been when you left it so far inland waters was concerned.

This becomes even clearer if you read the Committee Report.

The question of what the Committee Report from the senate said the question of what constitutes inland waters where it should be left where Congress finds it which is the only point that I’m seeking to make the moment.

I’m afraid I’m doing this in a very pedestrian way.

The floor discussions then even make that clearer.

There was a reference on the floor to California’s claims to the area South of Point Conception which is this whole so-called “overall unit area” including some of the bays and I suspect that it was a reference to the whole case.

Although, it wasn’t explicitly so if they knew of claims South of Point Conception they must have known the other.

As Senator Douglas then rose and passed “Whether the coastline may be interpreted as being the outer shores of islands far off the shores of the mainland as California has been claiming under a state statute and I believe before the Master and chancery of the Supreme Court in which event boundaries and ownership could go out a long distance from the continental land mass.”

Senator Holland then replied, “My understanding is that California has no provable case beyond three miles from its mainland and that as to the islands its provable case would be three miles around each of the islands.”

The joint resolution simply continues the outer boundary of inland waters pursuant to decisions of the Supreme Court already made.

Arthur J. Goldberg:

Now, referring to (Inaudible)

Am I right in assuming that California’s claim (Inaudible)

Archibald Cox:

Oh, yes.

It’s the distance for example on my map you would see Point Conception, well, going from Point Conception down to the islands immediately south there’s a rock, Richardson’s Rock 21 miles and San Miguel Island is the bigger island there it’s 24 miles and as you go to Point Loma which is the very end of my map way down the right hand corner out to San Clemente Island, it’s 56 miles and of course to go around San Nicolas which is the southwest, I guess, or somewhat more west and southwest island, it would be, well it’s 40 miles from San Clemente Island, it would be up 60 or 70 miles, I would guess, from mainland and these are tremendous deepwater plied on occasion as I’ll point out later by ships of the deepest drafts.

Now, this colloquy went on.

I’m not suggesting Mr. Justice Goldberg that this legislative history shows that the Congress intended to decide the issue before the Special Master against California.

I don’t think that would be warranted.

I think it shows an intention to leave things where they were.

In other words, it certainly shows no intention to help California so far as the claim about where the outer limit of inland waters is concerned.

Potter Stewart:

The Special Master’s Report had already been made?

Archibald Cox:

The Special Master’s Report had already been made and this reference to which —

Potter Stewart:

This colloquy could be understood as saying no more and no less than what the Special Master had decided.

Archibald Cox:

That’s absolutely — well, I’m not even contending for that much.

I contend only, I don’t think I need to contend for that much, I contend only that the Senate intended to leave the issues between California and the United States that were before the Special Master and this Court exactly where it found them and let those issues adjudicated according to the same rules for determining the extent of inland waters.

It would be applicable if the Submerged Lands Act had never been passed.

Potter Stewart:

But Senator Holland’s reply to Senator Douglas’ inquiry and which the Florida Senator say the talk about California’s provable claim and so on might be —

Archibald Cox:

Well, the Senator —

Potter Stewart:

To be understood just in the context of what the Special Master had decided, that the Special Master had decided against California.

Archibald Cox:

Well, I think he says quite clearly the joint resolution simply continues the outer boundary of inland waters pursuant to the decision of the Supreme Court already made.

I don’t think he — then he goes on and perhaps speaks to this point that I was trying to expound.

I don’t want to seem to claim more than the record will warrant.

I think the record makes it unmistakably clear that Congress wasn’t giving anything in this respect that it was continuing the status quo and that Senator Holland, Justice Stewart thought that California’s case was pretty feeble.

And he says that in effect of the passage a little further on.

He said the Senator for Florida believes that the laws as announced over and over again by the Supreme Court as to the limitation of inland waters are sufficiently fixed, definite and certain so that it would require a complete cataclysmic change of the Supreme Court’s philosophy in that field to afford any hope for an extension of the boundaries of California so that they would go out beyond the islands as to all areas contained in an outer line but he made it plain that if the Court wanted to make it complete and cataclysmic change he wasn’t trying to shut it off.

Were there any references Mr. Solicitor General to the Special Master’s Report as such?

Archibald Cox:

Well, not so far as I know.

He does refer to the fact the case was before the Special Master.

I don’t recall any mention of his knowing what the Master had reported.

They did have it in front of them Mr. Justice.

It was all printed.

Now, just one thing more on this point —

William J. Brennan, Jr.:

May I ask a question Mr. Solicitor.

As I understand both the United States and California agreed on the Master’s place of committee at the time of the original report?

Archibald Cox:

We — well, I think that’s right.

William J. Brennan, Jr.:

I — I say that only because we have here the exception — California’s exceptions of 52 or 53.

Archibald Cox:

If by basic premise you mean it is to determine in the framework of the rules applicable to determining our boundary for the purposes of external relations.

William J. Brennan, Jr.:

That’s what I —

Archibald Cox:

The answer to that is unequivocally yes.

William J. Brennan, Jr.:

Well now, what I was trying to get at is, did that reflect do you know any understanding of decisions of this Court?

Archibald Cox:

Well, if the —

William J. Brennan, Jr.:

If it did, what decision?

Archibald Cox:

The number of decisions had away in the hearing from legislative debate of doing I guess they sometimes do when we invoke the precedent in the courtroom.

You would have something you hope to put your anchor down to pretty soon it becomes a well precedence and pretty soon it becomes uniform authority.

There aren’t any such decisions as that.

There are a few cases referring to the problem but then there is very clearly Justice Brennan of course the usage in United States against California.

William J. Brennan, Jr.:

Well, what I’m really getting at is this, Mr. Justice Black said in the initial case speaking of Collard.

In doing so it has used the language strong enough to indicate.

The Court then believes that States not only own titled lands of soil but the navigable inland waters but also owned soil under all navigable waters within their territorial jurisdiction whether inland or not?

Archibald Cox:

Well, he was then referring to and distinguishing three cases of which he said did not represent the actual state of the law.

I think if I remember, they’re on the right hand side of a page and he goes on down and he refuses to follow those.

William J. Brennan, Jr.:

But in any — well, I’ll come back to the question on that, surely you’re not going to find anything in this, are you, in this decision which suggest that leaving this problem where the court left it, meant leaving it in the premise that the Master made, a premise with which both you and California then agreed?

Archibald Cox:

I do.

Yes.

William J. Brennan, Jr.:

You do.

I see.

Archibald Cox:

I think — I think that quite clearly, the term inland waters it’s not defined there.

It is not spelled out to details that we referred to but I think quite clearly because the whole opinion was in terms of our international relations and external sovereignty.

Because what the Court emphasizes is the need for national jurisdiction over territorial sea that this implies that the line between the territorial sea and inland waters would be fixed within that same framework.

William J. Brennan, Jr.:

And do you suggest then that this was really the understanding which lead to the agreement on the basic premise of the map.

Archibald Cox:

Yes!

I think that and I also point out Justice Brennan as part of the background that we had so explained in our brief in this Court before the intention was written that was the way we were using inland waters.

Now, of course, it’s not conclusive but I suggest that with that usage in the brief before the Court’s opinion, the reason for tying to those concepts in the Court’s opinion at the unanimous agreement thereafter never any debate as far as I know between California and us and the Master certainly no recorded debate that pretty conclusive by inference, but there is nothing to answer the question directly, there’s no clear definition in the event.

Hugo L. Black:

(Inaudible)

Archibald Cox:

But you must amend, if I may be so present here Justice Black, you must amend something more than that because the boundary of the State as set forth in its Constitution extended three miles out.

So you could — I think you could not have meant the line inland waters coincided with the boundary of the State.

I really don’t as a matter of logic.

Hugo L. Black:

Well, I — suppose it did.

Archibald Cox:

But then —

Hugo L. Black:

(Inaudible)

Archibald Cox:

— then the — if that was — oh!

But something more must both be within the boundary of the State and within our international boundaries.

Hugo L. Black:

But of course — of course, that’s (Inaudible) boundary.

Archibald Cox:

But there might — there were some places along the California coast where boundary of the State has declared in her Constitution was three miles out from the ordinary low water mark, there’s no question about that and where there’s no — none of these complexities about bays or anything else just off the coast and as to that your opinion, I suggest it very clearly holds that is not — does not go to the State because the United States therefore could not had been thought of as inland waters.

Hugo L. Black:

Could not go to United States (Inaudible) United States’ territories.

Archibald Cox:

Well, right.

Archibald Cox:

Right.

Hugo L. Black:

Yes.

But what we — what we left unsolved I thought is (Inaudible) both rivers that ran along the water and ran along the land.

Archibald Cox:

Right.

No and I agree completely with that.

I did not mean to suggest anything inconsistent with that.

You did use the word inland waters as if the meaning of the term inland waters indicated to us on how we should go about finding the boundary.

But after all inland waters is in the decree, as if it had some fixed something.And my suggestion is, it will depend on no particular passage.

And my suggestion is that if you read that opinion, the whole discussion of which is in terms of the international relations of the United States territorial waters, inland waters, concept having to do with our international relations that it must have meant to be logical.

Now, the only thing we say you decided and that is you decided that this was to be resolved by reference to the rules in external relations.

What they were?

How they would work out?

We fully agree it was left undecided but the framework, I suggest, was fixed and was understood by everybody else at that time but to be fixed in terms of the concepts of international relations.

Hugo L. Black:

I agree to that.

Archibald Cox:

Well, that’s really all I meant to say.

Hugo L. Black:

But even though you contend international relation but what I’m talking about by the whole discretion thing.

Going off (Inaudible)

It was going on the basis that the waters in the inland didn’t have to be inside the boundaries of the State.

(Inaudible)

They can have inside the land —

Archibald Cox:

Yes.

Hugo L. Black:

— what was included.

All I can have (Inaudible) and I have — I have done (Inaudible)

Archibald Cox:

Oh, no.

I didn’t mean to.

I’m afraid I’ve misled Your Honor.

To decide the case our way, we say that you don’t have to worry now as to whether they were or were not within the boundaries of the State in 1953 because Congress gave the State everything out to three —

Hugo L. Black:

Then I get back to —

Archibald Cox:

Well, I —

Hugo L. Black:

(Voice Overlap) later.

Hugo L. Black:

Could it have done (Inaudible) the boundary of the state recognized to give to the States (Inaudible)

That was the boundary of the State that Congress had in effect purpose of taking from it (Inaudible)

Archibald Cox:

Well, I would give one short answer now.

We don’t claim that Congress took anything away from California by the Submerged Land Act.

Hugo L. Black:

If the legal boundary before 1953 for this one place that Congress taken away by then.

Archibald Cox:

We don’t claim that anything was taken but it implies that it was not far thereafter.

Hugo L. Black:

I mean less.

Archibald Cox:

Yes.

Hugo L. Black:

But we got to get to see what it was then and that’s to determine whether (Inaudible)