United States v. California – Oral Argument – February 27, 1978

Media for United States v. California

Audio Transcription for Opinion Announcement – May 15, 1978 in United States v. California

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Warren E. Burger:

We will hear arguments next in the number 5 Original, United States against California.

Mr. Ryan you may proceed whenever you are ready.

Allan A. Ryan, Jr.:

Mr. Chief Justice and may it please the Court.

This case is before the Court on cross motions for entry of a third supplemental decree.

The areas in dispute are two one mile belts of water and submerged lands surrounding the two islands which together comprised the Channel Islands National Monument and I invite the Court’s attention to page 68 of the appendix, beige document which contains a diagram or a map of the area in dispute and the surrounding area.

Anacapa Island is about 12 miles off shore and Santa Barbara Island about 35 miles off shore the coast of the California.

The Islands themselves are about 40 miles apart.

These islands were established as the Channel Islands National Monument in 1938 by presidential proclamation of President Roosevelt.

In 1949, both parties agreed.

President Truman, in a presidential proclamation, expanded the monument by adding to it and I quote from his proclamation which is on page 67 of the appendix, adding to it “the areas within one nautical mile of the shore line of the Anacapa and Santa Barbara Islands as indicated on diagram,” the diagram being that on page 68.

The United States believes that by this language President Truman added to the monument everything within one mile of each of the island.

Potter Stewart:

At the time of President Truman’s proclamation referring to this diagram, the – this was the identical diagram to which you referred?

Allan A. Ryan, Jr.:

Yes Mr. Justice Stewart it was.

Potter Stewart:

And this was attached or made a part of the proclamation?

Allan A. Ryan, Jr.:

Specifically it was, yes sir.

Potter Stewart:

Thank you.

Allan A. Ryan, Jr.:

We believe that proclamation added to the monument everything within one mile of the shoreline; waters submerge lands and natural resources.

This conclusion is supported not only the words and the diagram of the proclamation itself but by the executive history of the proclamation.

California contends that President Truman added only rocks and islets within one mile of the islands, although California candidly concedes that both the language and the executive history of the proclamation do not unequivocally support its reading.

If this Court decides that President Truman did indeed include the waters and submerged lands within one mile in it’s proclamation, it must ten decide the second issue presented by this case, i.e. did the Submerged Lands Act of 1953 cede these lands and waters to California as California contends, or were they exempted by Section 5 of that act which provides that the United States will retain lands occupied by claim of right.

As to the first issue, the primary dispute between the parties centers on what President Truman meant by the word areas, when he added “the areas within one nautical mile of the shore lines” of the two islands.

The word “areas” is of course far more inclusive than the specific words of rocks and islets and California has yet to suggest why if President Truman had intended to include only rocks and islets, he would have used such as expansive and inaccurate word as “areas.”

Furthermore the map or diagram on page 68 which was incorporated by reference in to the proclamation, shows a boundary line running one mile around both islands with acreage figures that describe the total surface area of the islands into the one mile of water surrounding the islands.

Finally the diagram does not depict a single rock or islet within the boundary line except for some rocks that lie a few hundred yards off the shore of Santa Barbara and obviously no one mile boundary was necessary to include them.

California has yet to explain why a proclamation that was designed to include rocks and islets within the boundaries of the monument omitted to describe or depict those objects.

In all we believe it’s clear that the proclamation did exactly what it said it was doing, adding all areas within one mile of the islands and the areas cannot be reasonably understood to mean nearly some rocks and islets, but must mean the waters, lands, natural resources in short everything within one mile of the two islands.

The parties have collected the various memos, letters, and other materials which led up to the signing of this proclamation a sort of legislative history as it were and if any doubt as to the scope of the proclamation exits, this history certainly removes it.

In a nutshell this history reveals that after President Roosevelt established the Channel Islands National Monument in 1938 by reserving the islands themselves, it was almost immediately realized that those boundaries were inadequate to protect the wide variety of marine mammals and plant life that thrived in the waters around the islands.

Federal officials and naturalists agree that federal jurisdiction should extend into the water, but at that time, California and the United States were engaged in litigation before this Court to determine who owned the three-mile belt beyond the coast of California and these islands I might add politically are part of the State of California so that the three-mile question at issue involve these islands.

In view of the conflicting claims that were then before the California, the United States during this period of the mid 40s took no definitive action to expand the monument because there was doubt that it had the legal power to do so, regardless of how advisable such action might have been from a naturalist standpoint.

Allan A. Ryan, Jr.:

That question of course was settled by this Court in 1947 in favor of the United States when this Court held in the first California decision that the United States had paramount rights over the land, minerals and other things in the Pacific Ocean lying seaward of the low water mark.

Harry A. Blackmun:

Does that mean that you concede that there was no claim at all before the 47 decision?

Allan A. Ryan, Jr.:

There was no —

Harry A. Blackmun:

That the US had no claim at all before 1947?

Allan A. Ryan, Jr.:

No I would not take that position Mr. Justice Blackmun.

Before 1947 I would say that the question was in dispute and there was no definitive resolution.

I wouldn’t go so far as to say we had no claim.

I think our claim, the United States claim was that there was placed before the Court in California one.

Byron R. White:

But if — I take it that if 47 case had come out the other way you would say you had no claim?

Allan A. Ryan, Jr.:

If the 47 case had come out the other way we would have no claim in 1949.

Byron R. White:

And then couldn’t have been any national monument setup there?

Allan A. Ryan, Jr.:

It could not have been expanded in the way that President Truman did so and if President Eisenhower had tried to do this in 1959 after the Submerged Lands Act was passed would not be possible.

It was only in that period of time prior to the Submerged Lands Act that the United States had claim to this territory.

How far back it went in response to Mr. Justice Blackmun, I couldn’t say.

Byron R. White:

Well immediately after — immediately after the Submerged– immediately before the Submerged Lands Act while the 47 decision was still ruling the waves, what was the difference between United States claim with respect to the sea bed underlying the national monument and the adjourning sea bed?

Allan A. Ryan, Jr.:

There was really no difference as a matter of law.

The only difference for these purposes is that by making it a national monument that gives it certain protection.

Byron R. White:

Well if there was no – if there was no — I guess you were just going to tell me then why the Submerged Land Act didn’t treat both pieces of the sea bed the same?

Allan A. Ryan, Jr.:

It did not because of the claim of right exception.

Had it not been for the claim of right exception —

Byron R. White:

I know but both areas would be under claim of right?

Allan A. Ryan, Jr.:

No, the area which was held —

Byron R. White:

Well you know this case can’t do anymore than claim to own what it owns?

Allan A. Ryan, Jr.:

That’s true, but the claim of right exception did not include those lands which the United States owned, if you will, only by virtue of the California one decree, the paramount rights doctrine.

The Congress specifically said claim of right does not include that vast area of sea that we own — by California —

Byron R. White:

I know but except to that decision, you just said if the decision come out the other way, they wouldn’t have owned the national monument either?

Allan A. Ryan, Jr.:

They would have owned the islands, but had the decision come out the other way, I don’t think that President Truman in 1949 could have simply reserved this area and said I proclaim it a national monument, he may have been able to proceed by eminent domain or another fashion.

William H. Rehnquist:

Is that how the government acquired the islands in the first place by eminent domain?

Allan A. Ryan, Jr.:

The islands were a federal monument at least as far — federal territory — lighthouse territory at least is far back as 1854.

They have been in federal hands at least since that date, when they were used as lighthouses.

Potter Stewart:

That is ownership of the real-estate is what you are talking —

Allan A. Ryan, Jr.:

Yes sir.

Harry A. Blackmun:

That is the entire island?

Allan A. Ryan, Jr.:

The entire island at least down to the high water or most down to the – I am sorry at least down to the high water.

Harry A. Blackmun:

Now that you have mentioned high water mark, somewhere along here would you talk about tidelands?

Allan A. Ryan, Jr.:

I will talk about it right now and say that we, the United States has no claim to the tidelands.

Harry A. Blackmun:

Why?

Allan A. Ryan, Jr.:

Because the tidelands historically have been considered inland waters of a state.

Potter Stewart:

You are relying on the proclamation, proclamation then accept the tidelands.

Allan A. Ryan, Jr.:

No the –

Potter Stewart:

President Roosevelt’s —

Allan A. Ryan, Jr.:

President Roosevelt’s proclamation did not – it did not include the tidelands.

Potter Stewart:

But it didn’t exclude it.

Allan A. Ryan, Jr.:

Well, in that case, I would have to say that it excluded it by implication, because tidelands at least since the case of Pollard’s Lessee by this Court tidelands have been considered inland waters of the state.

And President Roosevelt just by proclaiming it a national monument could not have taken the tidelands back from the states.

Potter Stewart:

Well your reliance in this case as I understand it is, you correct me if I am wrong, exclusively upon the President Roosevelt’s proclamation and President’s Truman’s later proclamation?

Allan A. Ryan, Jr.:

Well as to the territory at issue here

Potter Stewart:

At issue here as President Truman’s proclamation.

Well I don’t see, why you don’t claim the tidelands if your reliance is on those proclamations?

Harry A. Blackmun:

The result is that state owns the tidelands whereas you claim the islands and the seabed beyond the tidelands.

Potter Stewart:

Right, that is the result.

Harry A. Blackmun:

So, we have a little horseshoe ownership of the states?

Allan A. Ryan, Jr.:

That is the result Mr. Justice.

Byron R. White:

I don’t understand that if the tidelands maybe inland waters of the state if the state happens to own shore next to it, but state at time of the proclamation didn’t own the shore and never has, doesn’t yet own these islands?

Allan A. Ryan, Jr.:

Well, the islands politically are a part of the state of California like Nantucket is a part of Massachusetts.

Byron R. White:

Well, it maybe so but the land is the United States territory, isn’t it?

Allan A. Ryan, Jr.:

Yes it is.

William H. Rehnquist:

That was true in Pollard’s Lessee too, all the land was in the possession of the United States and yet this Court held that the United States alienated the land could not alienate the tidal water.

Allan A. Ryan, Jr.:

But the tidal waters remained —

Byron R. White:

Not maybe so but as my brother Stewart says the proclamation –

Potter Stewart:

That’s right —

Byron R. White:

— didn’t say a word about tideland?

Potter Stewart:

— and so you are relying on the proclamation.

Allan A. Ryan, Jr.:

That’s correct.

Potter Stewart:

So, why do you concede way to tidelands, unless you are relying on something else?

Allan A. Ryan, Jr.:

We concede them away if that’s what we are doing simply because —

Potter Stewart:

That’s your proposed decree, excluding the tidelands?

Allan A. Ryan, Jr.:

We are not before this Court asking for the tidelands that’s –

Potter Stewart:

I wonder why not?

Allan A. Ryan, Jr.:

And the reason that we are not is because as we read President Roosevelt’s proclamation in 1938 he had powers, if you will, only to reserve the areas of the United States controlled and the United States did not control the –

Byron R. White:

So you say that proclamation could not purport to take the –

Allan A. Ryan, Jr.:

Could not have —

Byron R. White:

— legally and constitutionally could not take the tidelands?

Allan A. Ryan, Jr.:

— could not take the tidelands.

It does result in odd situation where the United States owns the land and one mile beyond the land and California retains the tidelands.

It’s — I won’t argue that that’s the most rational result in the world, but on the current state of affairs I think that’s what is the result.

William H. Rehnquist:

Well did President Truman have more power than President Roosevelt or is it that his proclamation is more express?

Allan A. Ryan, Jr.:

Well, they were looking at two different things.

He did not have more power as — we are not contending that he did.

President Roosevelt reserved only the islands.

That’s specific.

He said these two islands are reserved.

President Truman responding to the claims and the treaties of naturalists and park service officials and others, said President Roosevelt didn’t go far enough, the lands themselves are not adequate to protect the marine life, we will have to include the waters and so forth, the submerged lands around there and he used the word areas to achieve that —

William H. Rehnquist:

So it’s the lands – President Truman used broader language than President Roosevelt?

Allan A. Ryan, Jr.:

Well he did, yes.

Byron R. White:

And if he had said the areas including the tidelands you would have said that he didn’t have power to include the tideland?

Allan A. Ryan, Jr.:

I would say that right now, yes Mr. Justice.

Lewis F. Powell, Jr.:

Mr. Ryan is there a map here that shows the width of the tidelands?

That is the area between —

Allan A. Ryan, Jr.:

I don’t — there is nothing in the record that shows that.

Lewis F. Powell, Jr.:

Any idea what’s left of this now, that’s what I am interested in.

Allan A. Ryan, Jr.:

I would say it’s a matter of feet.

I don’t know how much the tide rises and falls.

Potter Stewart:

Not what’s left in this mile is a matter of feet, you don’t mean to imply that, did you?

Allan A. Ryan, Jr.:

No I am sorry.

That — there is – the tidelands which separate the federal islands from the federal water probably can be measured in feet I am sure.

William J. Brennan, Jr.:

Where do you begin to measure and from what?

Allan A. Ryan, Jr.:

From the line of mean lower low water, which is the California Coast line up to.

William J. Brennan, Jr.:

What relation does that have with the tidelands?

Allan A. Ryan, Jr.:

That is the sea where it ends of the tidelands.

Lewis F. Powell, Jr.:

The administration of this – of this conglomeration of four different areas, United States, California, United States and California would present all sorts of difficulties I would think.

Has anybody given any attention to that?

Allan A. Ryan, Jr.:

Well, California raises that point in their brief.

I don’t think that that is a — anything more than administrative problem.

It can be certainly worked out between the United States and California as to who will administer what.

Lewis F. Powell, Jr.:

It’s not our problem but it does bear I would think on the reasonableness of government’s interpretation of these proclamations?

Allan A. Ryan, Jr.:

Well I think Mr. Justice that it bears not so much on the reasonableness of our interpretation an on the realities of the law that is — that the United States could not have simply appropriated those tidelands in 1949 or at any other time as it appropriated what was around it.

I am sure that had – those tidelands been available President Truman would have included them and that would have been the only sensible way to do it, but as a matter of the law at least since Pollard’s Lessee those lands were not available to the United States.

And I would say that whatever problems our presented to the administration by this 6 foot or whatever it is section of tidelands are something that can be worked out between California and the United States and I would agree that it is a not a reason to find in California’s favor in this case.

I think it’s important to note that when the question came up not only in the or especially in the post of proclamation administration period of this area, as to whether the federal government had jurisdiction over submerged lands, the National Park Service which was charged with the administration of the area specifically referred to the submerged lands as being under it’s jurisdiction and the parties have been able to find no evidence that California ever contested that interpretation.

California I am sure has looked harder for it than United States did, but the joint appendix is here and there is no question raised in these materials as to any dispute by California at the time that Federal jurisdiction —

William J. Brennan, Jr.:

Getting back to this measuring point, whatever maybe easy with the guidelines you suggest that it was perhaps the width of was only in feet, whatever it may be seaward of the islands, whatever it’s boundary is of that island, is that – isn’t that from that point that you measure the mile seaward?

Allan A. Ryan, Jr.:

Yes Mr. Justice yes, that’s –

Potter Stewart:

Which is simply saying a measure from the low water mark of the shore of the island?

Allan A. Ryan, Jr.:

Correct.

Harry A. Blackmun:

May that, depending on tides and everything else, may that be a broadened just a few feet?

Whatever it is that California has?

Allan A. Ryan, Jr.:

What California has is determined by the line of mean low water, which is a statistical measurement drawn out over years.

It does not vary from day to day with that day’s tides.

Harry A. Blackmun:

Well, do we know what that is?

Allan A. Ryan, Jr.:

In relation to these islands?

Harry A. Blackmun:

Yeah.

Allan A. Ryan, Jr.:

I honestly do not Mr. Justice and it’s not –

Potter Stewart:

But somebody knows — but somebody knows.

Allan A. Ryan, Jr.:

I am sure that somebody does.

Potter Stewart:

It’s a fact.

Allan A. Ryan, Jr.:

It is a fact and it’s a fact that judicial notice can be taken of if we knew what the fact was which we don’t If the Court to determines in the favor of the United States that all waters and lands were included in President Truman’s proclamation that brings up the second question in the case which is whether the Submerged land’s Act gave this all to California in 1953.

The Submerge Land’s Act was enacted by Congress in 1953 to give the states title to the lands and resources lying up to 3 miles seaward off their coast lines.

Had Congress stopped there, a case could be made that the disputed area here was relinquish to California, but Congress for very good reasons did not stop there.

In Section 5(a) of the act it accepted from the operation of the act and I quote “any rights the United States has in lands presently and actually occupied by the United States under claim of right.”

The parties have stipulated for purposes of this litigation that the disputed areas here were “presently and actually occupied within the meeting of the statute by the United States after the 1949 proclamation” and so we agree that the only issue was whether the United States occupied them under Claim of Right.

Both parties agree that the legislative history of the Submerged Lands Act shows beyond any doubt that Congress did not include under the Claim of Right exception, the so called doctrine of paramount rights to which I referred a moment earlier, which this Court announced in 1947.

The reason that Congress made clear that Claim of Rights did not include paramount rights is obvious.

Such a construction would have retained everything that the Congress was trying to give back, would have rendered act to nullity.

On the other hand the reason Congress inserted the Claim of Right language in the first place is equally obvious.

It was giving back to the states only those areas which the United States occupied or where jurisdiction extended based on paramount rights.

It was certainly not giving to the states, federal military bases, naval ranges, national monuments and other areas which the federal government was actually using at the time for various purposes.

Congress also did not want to give up any claim or rights that the United States might have to areas that in dispute and so it shows the language, Claim of Right, to include those disputed areas as well as areas which the federal government occupied without dispute.

William H. Rehnquist:

Mr. Ryan what if then President Eisenhower, after the Submerged Lands Act, it passed both houses of Congress, feeling that he didn’t really like the act but knew he had to sign it, issued a proclamation proclaiming the entire three miles coastal zone a national monument and then went ahead and signed the Tidelands bill, do you think that would a claim of right?

Allan A. Ryan, Jr.:

Presidential proclamation for the entire three-mile belt –

William H. Rehnquist:

Yes.

Allan A. Ryan, Jr.:

— beyond the coast of California?

I would think you would have to look first at what authority he had to do that.

The Antiquities Act of 1906 which is the statutory authority for these two proclamations, I think probably could not be construed to include the thousands of square miles that – decree like you suggest would include, but assuming that there were some statutory authority to do that and he could reserve it as a national monument or something of that nature, I would say that would be a Claim of Right.

William H. Rehnquist:

But when you say there must be statutory authority for the President to —

Allan A. Ryan, Jr.:

At a minimum the presidential proclamation has to be a valid one.

For purposes of this case I would want to say that a Claim of Right could be voided if it could be shown that the statutory authority underlying, it was insufficient —

William H. Rehnquist:

Does that mean both the United States must have had title and the President authorized to make a proclamation?

Allan A. Ryan, Jr.:

It does not — United States did not need title.

Claim of Right is something which is generally understood to mean something less than title and so by inserting that language.

William H. Rehnquist:

Well I mean good faith — at least good faith and reasonable belief that you want, doesn’t it.

Allan A. Ryan, Jr.:

Yes and a claim that you wanted.

William H. Rehnquist:

And what do you say is the source of the government’s Claim of Right in this case?

Allan A. Ryan, Jr.:

The 1949 proclamation by President Truman.

William H. Rehnquist:

And what was the authority for him to make that?

Allan A. Ryan, Jr.:

The Antiquities Act of 1906, but California has taken the position that the Antiquities Act of 1906 does not authorize President Truman to do as much as he did in 1949.

Our position is first that’s wrong, that it did authorize him, but secondly if it came to that — that we would say that doesn’t void the entire presidential proclamation.

William H. Rehnquist:

Well then we would still have to decide that question, wouldn’t we, the Claim of Right exception, if you prevail on it simply leaves you where you were with respect to the ability of President Truman’s proclamation?

Allan A. Ryan, Jr.:

That’s right.

The Claim of Right exception, time after time in the congressional debate was considered to be something that neither validated nor prejudiced any claims and we certainly don’t rely on that as validating this claim.

It’s a presidential proclamation, but it is difficult to imagine a Claim of Right more definite and more explicit than a statement by the President of United States that he is reserving these areas for purposes, statutory purposes authorized by the Congress.

William H. Rehnquist:

If – what if the United States owned them?

Allan A. Ryan, Jr.:

Well the United States there is no dispute I think, perhaps I shouldn’t say that but we think it’s certainly clear that by the doctrine of paramount rights the United States had a right to proclaim this area in 1949.

William H. Rehnquist:

I thought that the decision in California specifically reserved the question of ownership?

Allan A. Ryan, Jr.:

Well the decree did not use the word own.

William H. Rehnquist:

It was stricken out of the decree.

Allan A. Ryan, Jr.:

The decree said — it now has and exercises paramount rights over the territory, but in California two there is footnote that says the issue in California one was whether who owned the three-mile belt, so I would think the distinction between ownership and paramount rights is at most a technical one.

I will reserve my remaining time.

Warren E. Burger:

Mr. Iungerich.

Russell Iungerich:

Mr. Chief Justice, may it please the Court.

I would first like to briefly address the question of tidelands in this case.

California bases it’s ownership of tidelands on the basic doctrine enunciated first in Pollard’s Lessee versus Hagan and followed most recently in the Oregon versus Corvallis Sand & Gravel case and that is by virtue of the equal footing doctrine, by virtue of our sovereignty, we receive title to all — ownership of all tidelands within our political boundaries and since our political boundaries included not only the mainland, the coast of the mainland out to water but also the islands offshore which were within our political jurisdiction.

The tidelands around those islands are also owned by the State of California and not the United States as we originally claimed in this proceeding.

Potter Stewart:

The reliance by the government in this case is on the proclamations.

Russell Iungerich:

Yes.

Potter Stewart:

And absent of proclamation as a general rule; you — California owns its tidelands along the shores including around the shores of the islands that are part of California, but the whole reliance of the government in its exercise of paramount rights over both these islands and now on the President Truman’s proclamation, the one-mile belt around them and I know that’s a basic issue in this case, why didn’t it get the tidelands under the proclamation?

Russell Iungerich:

We didn’t get the tidelands because we own them and because the Antiquities Act of 1906 is that you can only place international monument —

Potter Stewart:

You didn’t in fact owned — you had turn out rights to them under —

Russell Iungerich:

Well I think it was more than that as far as the decision in 1947 and in later cases point out.

That point — the point that was made is that we did have rights with respect to the tidelands that I think were broader than the rights that the federal government received in 1947 in the one mile belt and that those rights were historic rights that even the federal government recognized and did not contest in the 1947 decision.

Potter Stewart:

Now — I think — I would have thought, under President’s rule about original proclamation providing that these islands should be the national monuments, the islands or the islands down to the shore?

Russell Iungerich:

Well if you take a close look at the 1938 proclamation of President Roosevelt and look at the calls of the island that are set forth for Santa Barbara island, the cause are only to the high water mark –

Potter Stewart:

Oh, they are –

Russell Iungerich:

— recognizing only with regard to Santa Barbara Island, federal ownership down to the high water mark and apparently recognizing our ownership of tidelands at that point in time.

There is no mention specifically with regard to Anacapa Island but there is that specific call in the Santa Barbara island portion out of the description in 38.

Potter Stewart:

That’s our terms at least respect to Santa Barbara.

Russell Iungerich:

Yes.

So at least as far as the tidelands are concerted, we think that we should have decree affirmatively stating that California owns those tidelands and that clearly specifying what the shoreline of Anacapa Island is?

The United States proposed supplemental decree would nearly exclude them from the proclamation and not affirmatively state that California has its right adjudicated by this Court and the fact we have the right to administer those tidelands and exercise jurisdiction over them.

Now that does present if the federal position prevails this problem of what appear to be concentric realms and we submit that the interpretation of the 1949 proclamation which the government presents here is an erroneous interpretation of that proclamation and as a matter of law the proclamation must be construed as not to have added either the submerged lands of the one-mile belt around each of the two islands or the waters of the Pacific Ocean that are above those submerged lands and we submit that that follows for the following reasons.

First of all if we examine the use of the word “areas,” the preamble to the proclamation which normally we would refer to, to discover the intent of the President or in a case of a statute the intent of Congress, only refers to the islets and rocks that are located in the one-mile belt and then it at a later point in the — in the preamble there is a reference to the areas here in after described, very – and making it very unclear what those areas will be.

The use of the word “areas” as we analyze the definition of the word “areas” normally connotes surface or is a term of surface reference, another word “a two dimensional reference” which in it’s normal usage would only include the surface of the waters.

Indeed there is one document that’s cited in the Federal Government’s brief, which the specifically indicates an intent on the part of the National Park Service to add only waters and I refer to the U.S. brief at page 15 and their reference to join a appendix page 13, a park service memorandum that suggests the addition of surface areas only.

Now if that’s the case, we’re looking here at the possibility of only adding the surface areas of the water.

William H. Rehnquist:

That’s not true when you’re simply construing a deed that’s a deeding land rather than water, is it, I mean –

Russell Iungerich:

This — Justice Rehnquist it all — I think the whole continuity, all of the factors in the matter of interpretation have to be taken into account.

We look at this one isolated factor.

I’d have to concede that it might be equivocal one way or another.

I think over — looking over the entire proclamation with all the factors that I plan to bring to the Court’s attention and which we have brought to the court’s attention in the brief, we really can’t tell what areas was really intended to cover, but one thing I can say and one thing the federal government has not brought out in it’s briefs or here in it’s oral argument is the fact that throughout the executive history, throughout any — throughout the language of either the 38 proclamation or the 1949 proclamation there is not one reference to the term submerged lands as being intended to be added to this national monument.

There is not one reference and they can sight no where to the record to a reference to submerged lands.

We submit that what they we’re concerned about is protecting the marine life that was out in the water next to these Islands.

And as we make the point, in Executive Order 9633 in 1945.

President Truman had already reserved the submerged lands of the continental shelf for future to legislation so that they couldn’t have been added to this monument unless there was a repeal by implication of the 1945 proclamation and that’s a point that the United States does not answer.

There has to have been that revocation by implication and that revocation by implication can not stand here because the information taken out from the language out of the proclamation, the information that we have from the executive history, points in many directions, but it does not support any claim to submerged lands being added to the — to the monument in 1949 and I think that’s the relevant point here.

It suggests at most while it clearly adds the rocks and islets within the one-mile belt because their names are specifically in the proclamation and it may add the surface areas of the water and some rights in the water areas but we submit under the Antiquity’s Act, the waters is alone could not have been added to the monument in and off themselves without submerged lands —

William H. Rehnquist:

But when you — when you say the surface area of the water alone, you agree don’t you that to — someone the surface are of land and nothing more is almost meaningless.

I mean you can’t pass 6 inch furl in the land, it doesn’t do very much good and most in deeds convey mineral rights unless they’re accepted?

Russell Iungerich:

Well the problem here is we have an in artful description and it’s not clear what’s meant and I don’t necessarily rely on surface area but I’m just trying to find out, basically grapple with what President Truman intended.

William H. Rehnquist:

Well but isn’t one of the least reasonable construction is the idea that he intended to reserve kind of a film of water mile —

Russell Iungerich:

I think most — it wouldn’t be film of water, it would have to be the bulk of the water but not the yellow line sea bed –

Warren E. Burger:

Aren’t you reversing the ancient approach to it, that’s the critical thing is the owner of the land and what’s above it and what’s below it.

Now the water is above it here, is it not?

Russell Iungerich:

But what the problem is that the land has to be expressly placed in the monument and not the water alone.

In other words the Antiquity’s Act of 1906 says that government can only add the land owned or controlled by the Government of the United States to a national monument.

Examining the Secretary of Interior’s letter to the President, he said, he wanted to add the rocks islets and waters within one nautical mile that was subsequently changed to areas but there is not indication that submerged lands were intended to added.

Byron R. White:

Would you think that the reservation intended to reserve the United States the right to conserve the sea life that lives on the bottom?

Russell Iungerich:

No it does not intend to reserve — the proclamation as I see it is not intended to protect sea life because Assistant Solicitor General Washington wrote the memo that ultimately went to the attorney general and was then sent to the President recommending approval of this proclamation specifically disavowed any intention to protect marine life.

Byron R. White:

Well let’s put it this way, under that’s — if you assume that — that the proclamation was intended to — to reserve the water, I suppose the United States controlled the sea life in it?

Russell Iungerich:

Yes.

Byron R. White:

Wow about the ones living on the bottom?

Russell Iungerich:

Well I don’t know how we divide that up and I think the simple answer to that is it’s very difficult to grapple with that, the actual intent of the President in this case because it’s very hard to deal with those terms.

I think the way to resolve this problem is the way that California has suggested and that is simply this –

Byron R. White:

And if you are not – one of the build appears or something out from the land they would be trespassing?

Russell Iungerich:

Yes.

Byron R. White:

And had — would have no right to have a —

Russell Iungerich:

That would be anything —

Byron R. White:

— under water under your submission?

Russell Iungerich:

Yes, but what I’m — what I’m submitting here is that the reason the probable reason way this term waters and the word area was used was the fact that in 1945 there had already been a reservation in Executive Order 9633 of this natural resources of the subsoil on sea bed of the continental shelf which reserve those lands for legislation being aware of that and the Department of Interior they wanted expressly to avoid the possibility of taking some lands out of that reservation and placing them in the national monument, and so they carefully tried to draft a proclamation that avoided that result and the end result is a proclamation that will not stand the test of the Antiquity’s Act because it didn’t add the submerged lands underneath, because there has been the repeal –

William H. Rehnquist:

If it doesn’t withstand what you call the test of the Antiquity’s Act, all that means is the President didn’t have the authority to put it in a national monument, it doesn’t mean that the government no longer owns it or it had a claim of right, does it?

Russell Iungerich:

If they didn’t — if the government didn’t own it — it not — it does not have a claim of right.

William H. Rehnquist:

Well let me ask you, do you think under the Antiquity’s Act the President could proclaim all the incorporated area with in the city of Santa Barbara as a national monument because of — the early fryers and so forth even though the land was owned by private citizens?

Russell Iungerich:

No he can not.

It states that the land must either be owned or controlled by the United States and that means that we either have to have some type of public domain land or we have to have a type of land that has been — is under the control of the United States, such as the question of title was left in the doubt in the 1947 U.S. versus California decision and the federal government was awarded paramount rights in full dominion over their natural resources and subsurface but under those circumstances what we have there is the government controlling those lands in the sense that it had very broad rights but if the federal government does not own lands or does not control them I submit the Antiquity’s Act says that the President does not have any authority of any type to put those lands in any kind of reservation and I think that’s the clear statement of what Congress meant in analyzing the legislative history of the Antiquity’s Act —

William J. Brennan, Jr.:

— the proclamation was valid under the Antiquity’s Act with respect to the islands?

Russell Iungerich:

Yes it was because those islands were ceded to the United States under the Treaty of Guadalupe Hidalgo from Mexico and as a result based on that they were public domain lands and being public domain lands the United States could place them in a national monument down to the high watermark, but they couldn’t place out tidelands in there because by virtue of our sovereignty in 1850 the Treaty of Guadalupe Hidalgo was in 1848 —

Byron R. White:

I take it that – and it could have — do you say that the – aside form that would you say that the Antiquity’s Act authorized the President to reserve the sea bed beyond the tidelands if had said so expressly?

Russell Iungerich:

Excuse me, yes if we had said so expressly in 1949, he could have reserved the submerged lands in that one mile belt.

Byron R. White:

The Antiquity’s Act would have authorized that?

Russell Iungerich:

Yes, the point is it’s unclear whether he did that because he had already reserved those lands in Executive Order 9633 and this order can be can be construed in such a way as that — as not repealing by implication Executive Order 9633 and giving the National Park Service jurisdiction over everything that’s in the water and still reserving under 9633 the submerge lands for purposes of national — national resource development.

William H. Rehnquist:

How can profit though from any imperfections in these presidential proclamations based on the Antiquity’s Act since as I understand the Antiquity’s Act it’s only purpose is Congress says with respect to this kind of land at the United States owns or controls, the President may make a national monument of it.

William H. Rehnquist:

Now supposing he didn’t succeed in making a national monument wouldn’t that — the United States would still own or control it?

Russell Iungerich:

No it wouldn’t because in 1953 and that’s my next point, in 1953 the Submerged Lands Act relinquished to California all federal rights in the entire three-mile belt and our point is that this is not a valid claim of right that was preserved by Section 5 and the claim of right exception in the Submerged Lands Act and I think —

John Paul Stevens:

May I interrupt?

And that very point, supposing the 49 proclamation had been as clear as I think Justice Rehnquist suggested and said we reserve as a national monument the submerged lands as well as the waters in the inlets and outlets and all that, would you still make the same argument based that –

Russell Iungerich:

Based on the interpretation of the proclamation?

John Paul Stevens:

No, no — based on the interpretation of the 1953 statue.

Russell Iungerich:

Yes because the reason is if they had put the submerged lands in to the — into the monument in 1949 –

Byron R. White:

Expressly —

Russell Iungerich:

Expressly –

John Paul Stevens:

Which you said they already do –

Russell Iungerich:

They had the power expressly –

John Paul Stevens:

You concede that they had the power to do that?

Russell Iungerich:

They had the power to do that but our point is that that’s the claim of right resting solely upon the paramount rights doctrine of the 47 decision.

John Paul Stevens:

Why isn’t that the claim of right doctrine resting on the presidential proclamation pursuant to the — the Antiquity’s Act?

Russell Iungerich:

Well presidential proclamation is simply a reservation.

That proclamation is not a claim of right.

The antecedent claim of right to piece of property is the source of the federal government’s title or it’s source of control of that property.

It’s the antecedent —

Byron R. White:

Why don’t you tell us how you interpret the claim of right in the Submerged Lands Act?

Russell Iungerich:

Well I would submit that the — the clear indication here is that, when we’re talking about claim of right, if we look at the legislative history which California has set fourth in detail in it’s brief, the purpose of this was to not preserve reservation of this language.

It was a savings clause that if there was an implied claim that might later be brought up in court or a claim that was pending in court that the United States had, the broad language of the Submerged Lands Act would have made that land pass back to California —

Byron R. White:

Suppose the government had — there were piers built out from these islands far out into the – far out and all past the sea bed and there were a 100 offshore oil platforms operating with in the one mile zone under leases from the United States – the 1953 reservation wouldn’t have —

Russell Iungerich:

They were expressly recovered by another exception Your Honor.

They were covered by all lands filled in, built up and otherwise reclaimed by the United States for its own use and they did not — were not encompassed within — they we’re expressly thought of and were not encompassed in the actual occupancy under claim of right exception.

Byron R. White:

You don’t think that — you don’t think that — a presidential occupation expressly reserved in the sea bed would have been a reservation for the —

Russell Iungerich:

In answer that I question Your Honor, suppose the President tomorrow walked in to your home and announced I proclaim this as a national monument, would he have a claim of right to that property?

Byron R. White:

That is in the situation in 1949, the government, the government had until to 1953 it was the government’s underwater sea bed.

Russell Iungerich:

Well how did the government get the title to that underwater sea bed or whatever right it had, it’s right to control, it was in the 1947 decision —

Byron R. White:

It sort of the same way California got the tidelands –

Russell Iungerich:

But we got them by —

Potter Stewart:

Through decisions of this Court –

Russell Iungerich:

Yes, yes.

Harry A. Blackmun:

Let me follow through on Justice White’s suggestion as to piers.

Suppose today United States put out a pier from one these islands, on your theory could they do that?

Russell Iungerich:

They’d have to have to obtain — our theory is that we own that particular until it’s adjudicated –

Harry A. Blackmun:

Now if you loose this case, what they do?

Russell Iungerich:

Well if we loose this case then you’ll adjudicating that they own the submerged lands and they could put out a pier.

Harry A. Blackmun:

How would they get over your tidelands?

Russell Iungerich:

Well I think they’d have to get a permit to cross our tidelands

Harry A. Blackmun:

And they couldn’t?

Russell Iungerich:

Well, I am not saying that California wouldn’t exercise the jurisdiction to allow them a permit to cross our tidelands but yes there is that intervening area and they would have to resolve that with the state of California and clearly own those tidelands and it — and basically what is happened here is that we have a situation that is probably an exception to all of the uniform rule that mariners can rely on, the governments can rely on that the states at the present time are the agencies that have jurisdiction over the three-mile belt except around Anacapa and Santa Barbara island and possibly for Jefferson National Monument in the Dry Tortugas in Florida.

But those are the exceptional situations where the federal government is claimed is prior to 1953 in area, but I submit a reservation is not a claim of right.

A proclaim — a presidential proclamation is not acclaim of right in on of itself.

It’s merely statement by the President that I think under the Antiquity’s Act the federal government owns or controls this property and it’s merely an assertion of that by the President of the United States.

It does not create a good point right —

Warren E. Burger:

What’s the difference between a claim of right and assertion of right?

Russell Iungerich:

Well a claim of right must have a basis and the basis here is the paramount rights decision in 1949.

There is no basis.

I mean a reservation is simply a mechanical feature that’s used within the Department of Interior to transfer normally public domain lands from the general category where their entry and sale is allowed over to a special category where they are administered for special purposes.

But I don’t believe that a reservation metamorphosis a claim of right based on the paramount rights doctrine into acclaim of right of some other nature, to — in the style of Gertrude Stien a reservation is a reservation is reservation but not a claim of right and that’s the basic point I’m making.

As far as this particular area, there was a reservation here in 1949, but — but for the 1947 decision, the federal government had no claim that it had to right own or to control the submerged lands in the one mile belt.

Without the submerged lands it has no right to control the super Jason waters because the Antiquity’s Act does not have the super Jason – does not allow addition of waters in and of themselves.

It says expressly it must be lands that are added and then if we have any implied rights those rights are to waters.

What the federal government does is turn that on its head and says well we reserve the waters and therefore we ought to get the submerged lands.

Potter Stewart:

Yeah but you — you put a great big but before in there and it’s the absence of that but for on which the government relies i.e the 1947 decisions in the first California case.

Russell Iungerich:

Well if — but the senate reports expressly states with regard to the claim of right exception that there is not a good claim of right when that claim of right rests solely upon the doctrine of paramount rights and I submit that we don’t want to the reservation we look to the way in which the federal government owned or control bad land, the reason why it owned control that land as being claim of right.

That is my — the basic point and the basic point of difference with the United States.

We submit that if you look at the language of the active — Antiquity’s Act and the reason why the government owned or controlled it that reason is the — paramount rights doctrine of the 47 California decision and in light of that the requirement has to be that it’s not a good point of right because it rests solely on the paramount rights document.

Potter Stewart:

But the government’s claim of right doesn’t rest only derivatively on the paramount rights.

It rests directly on President Truman’s proclamation.

Russell Iungerich:

But I don’t see a pro — a proclamation as being a claim of right in any sense.

I’m afraid that’s the difference.

William H. Rehnquist:

You say a proclamation is basically a reservation of land that the government already owns transferring it out of category to a national —

Russell Iungerich:

Well that’s — that’s what the proclamation says — I — let me —

Potter Stewart:

Well that extension of the authority under the Antiquity’s Act too, isn’t it —

Russell Iungerich:

That is the statement of President Truman.

He says, he does proclaim the areas within one nautical mile are with drawn from all forms of appropriation and are reserved as part of the Channel Islands National Monument.

Now the proclamation in and of itself doesn’t do anything.

It just reserves those lands and it takes them out of the area where they can be appropriated under public land laws and it puts them into the national monument category.

It’s not a claim of right in and of itself.

What we’re talking about is a claim of right where we’re — the federal government has some claim that it owns or controls this land.

This isn’t a claim that it owns or controls the land.

This is merely a statement that’s transferring it from one category to another, and I think that that’s the critical point.

John Paul Stevens:

Well this be — I just and I’m — would this be a fair statement of your argument that — we should read the original decision and the statute as saying in affect that any claim of right shall be decided as though the California case had been decided the other way?

Russell Iungerich:

Yes I think that’s — I think that would be a fair statement because that what the legislative history, the senate report says that we in effect are not allowing a claim of right based solely on the paramount rights doctrine — and in fact it seems to be —

Potter Stewart:

And you talking now about the 1953?

Russell Iungerich:

The 1953 act —

Potter Stewart:

The submerged lands act.

Russell Iungerich:

Yes and the claim of right language that is contain within Sections 5 of that act.

John Paul Stevens:

And if it had been decided the other way then President Truman would not have had the power in 1949 to make any reservation?

Russell Iungerich:

That’s correct and I would submit as well in analyzing the legislative history of the proclamation that the essence of what was — what was intended by the actual occupancy under claim of right exception was the situation where the federal government had a claim and litigation or a claim that may have been brought in litigation and if that language had not been placed in Section 5, all of those claims either good or bad would have passed to California and federal rights would have been relinquished.

William H. Rehnquist:

But why then the — why then the California stipulate that this land was — actually occupied —

Russell Iungerich:

We’ll not answer why admit the actually occupied because we don’t think that they’ve got a good claim of right and therefore there are two parts to the language.

We submit –

William H. Rehnquist:

You give away one part —

Russell Iungerich:

— we give away one part but we don’t give away the claim of right part.

William H. Rehnquist:

Why don’t you hold on to both parts in your case and litigate —

Russell Iungerich:

Because that would have involved an extensive factual issue and I think probably that the federal government would have prevailed on that issue and that was a attachable judgment.

In conclusion California submits that first with regard to the interpretation of the proclamation, we have a concession on the part of the federal government that both the language of the proclamation does not cover the tidelands and that under those circumstances California submits that it is entitled to an affirmative decree such as it proposes, recognizing it’s rights on those tidelands and not really excluding the tidelands as the federal government does from it’s decree.

We also submit that the interpretation of the 1949 proclamation should be such that it should indicate that the submerged lands have been placed in Executive Order 9633 in 1945 and therefore since there is an ambiguity as to what was actually placed, in 1949 in the Channel Islands National Monument by the enlargement of – without a repeal by implication of the 45 proclamation as a matter of law and by a established cannons of statutory construction applied in this case to a proclamation there should be determination as a matter of law that this proclamation is interpreted as non including submerged lands.

Russell Iungerich:

If it doesn’t include submerged lands our argument is that waters alone could not have been added just the waters above the submerged lands because the Antiquity’s Act only permits the addition of lands owned or controlled by the government of the United States and it’s doesn’t allow the reservation of waters per se without lands beneath them or without lands adjacent to them having been placed within the national monument.

We further submit that as to the claim of right exception, the basic point here again and I emphasize that is that we look to the claim of right as being the underling claim that the federal government has that it owned or controlled those lands in 1945 and again we submit that the claim of right is not a reservation in and off itself because it — a proclamation such as this, works no magic.

It doesn’t improve the quality of the federal government’s title it doesn’t make the federal government own something that it does not own and it does not take a reservation that was based solely on the fact that the federal government was adjudicated in 1949 to own in one sense or control in another sense the submerged lands of the one mile belt and metaphors – have a work in metamorphosis of that claim into something that is separate and apart from the paramount rights doctrine.

And I think that’s the — the fundamental point at least as far as our case on either of these two points I think that the decree proposed by California should be adopted by this Court and that judgment should be in favor of the state of California with respect to this decree.

Potter Stewart:

Metamorphosis —

Warren E. Burger:

Mr. Ryan.

Allan A. Ryan, Jr.:

California argues as to the first stage of dispute that the whole thing is really a problem of sloppy graspmanship and that the President Truman could have accomplished everything that the United States as he did accomplish had he only done it a little more carefully and that as I understand it is a two part argument.

He should have said, according to California, rocks, waters, islets, submerged lands and so forth instead of saying just areas.

Well, I grant you had he said that we perhaps would not be in court today.

We say —

Byron R. White:

(Inaudible) say that 1953 Submerged Land Act would nevertheless run you in lot of courts?

Allan A. Ryan, Jr.:

Well on that respect we would I am corrected.

We — the United States has contended that the President accomplished the same thing by the word areas and I don’t see any need to go over that.

The second part of California’s argument on this point is that the 1945 Executive Order, reserving the Outer Continental Shelves, was not revoked by implication in the 1949 Proclamation as it should have been.

I think the answer to that is to consider that the Executive Order of 1945 does the following and I quote from the order itself, as to the Outer Continental Shelf it is “placed under the jurisdiction and control of the Secretary of the Interior for administrative purposes pending the enactment of legislation in regard thereto” and there it stood from 1945-1949.

In 1949, two square miles of the 400,000 square mile Outer Continental Shelf, one four thousand of one percent is conveyed if you will or transferred from the Secretary of the Interior back to the President.

It is taken out of that category in which it was in as a result of the 45 degree and it is given back to the President who then proclaims it to be a National Monument.

Now to call this a revocation by implication if that’s the test then that’s what it is.

Regardless of what one calls it is very clear that the land went to the Secretary of the Interior in 1945 as part of the Outer Continental Shelf and two square miles of it came back four years later.

There is no problem with that.

There is no necessity for the 1949 proclamation to say we revoke one four thousand of one percent of the 1945 proclamation.

That’s looking for things that shouldn’t be there in the first place.

It’s a very simple matter that the land went to the Secretary of the Interior in 45 and it was given back, transferred back four years later —

Byron R. White:

And then three miles of it all went to the states?

Allan A. Ryan, Jr.:

And then three miles of it all went to the state.

Byron R. White:

Including these two miles?

Allan A. Ryan, Jr.:

Not including these two miles.

These were not part of the two miles that went to the state.

Potter Stewart:

Because of the claim of right.

Allan A. Ryan, Jr.:

Because of the claim of right, because they were specifically accepted in Section 5 (a) by virtue of the claim of right.

Allan A. Ryan, Jr.:

Yes.

Potter Stewart:

Because of the statutory language excluding claim of right?

Allan A. Ryan, Jr.:

Yes.

And I think California’s argument that this is simply — that the 1949 proclamation was simply an administrative rearranging of the Department of Interior’s land is just not so.

William H. Rehnquist:

You said yourself a minute ago I thought it was that it was that it was just transfer from Department of Interior to the President and then he made a national monument of it.

Allan A. Ryan, Jr.:

The second part, the making of the national monument is the critical part and to say it’s simply was a rearrangement of lands is only half the story.

The second half is that the national monument was made out of it.

Certainly you don’t need a Presidential Proclamation to reclassify land in the interior department if that’s all that was being done there was no need for Presidential Proclamation.

The Proclamation was there because a National Monument was to be made out of it.

William H. Rehnquist:

But the assumption was quite apart from language of proclamation the United States owned or controlled that land?

Allan A. Ryan, Jr.:

Absolutely.

Yes.

There is for example in 16 U.S.C. 433 it is a criminal offense to molest property on a national monument.

That is not so another lands on by the interior department.

So this had a — the making of a national monument out of these two square miles was much more then simply an administrative transfer that could have been accomplished by a memorandum from the Secretary of the Interior to the National Park Service.

I think as far as the second part of the argument, the claim of right doctrine, California simply reads too much into the — into it must be a claim of right, that there is if the United States, if the Congress had meant to follow California’s interpretation of what is a claim of right it would have simply given everything back to the states and demonstrably it didn’t intend to do that.

In Section 5 (a) of the Act there were several categories of lands and territories, and waters and so forth, but the United States that the Congress wished to retain for the United States, this comes into one of those and I don’t think California can content otherwise.

Thank you.

Warren E. Burger:

Thank you gentleman, the case is submitted.