United States v. California Sample

PETITIONER:United States
RESPONDENT:California
LOCATION:Channel Islands National Park

DOCKET NO.: 5 ORIG
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 381 US 139 (1965)
ARGUED: Dec 07, 1964 / Dec 08, 1964
DECIDED: May 17, 1965

Facts of the case

InUnited States v. California (1947), the Court ruled that the federal government owned rights to the undersea land off the California coast, an area with rich oil and mineral deposits. The Court held that California’s rights were limited to low and inland waters and appointed a special master to better define the limits of California’s land rights. In a report filed in 1952, the special master based his definition on the one used by the federal government in foreign relations. In 1953, before the Court considered the special master’s report, Congress passed the Submerged Land Act, granting to the states’ ownership of underwater land within their borders “as they existed at the time such State became a member of the Union.” The act limited states’ seaward rights, however, to no more than three miles from the coastline. The act also acknowledged states’ ownership of land beneath inland waters. The act gave no specific definition of either “coastline” or “inland waters” and did not address bodies of water adjoining the sea, such as bays.

Question

Do rights to the undersea land off the California coast beyond the three-mile limit described in the Submerged Land Act, particularly in the case of bodies of water adjoining the ocean, belong to California or to the federal government?

Earl Warren:

The United States of America, Plaintiff, versus the State of California.

Mr. Solicitor General.

Archibald Cox:

Mr. Justice Black, may it please the Court.

At the conclusion of yesterday’s session, Justice Black asked several questions relating to the power of the United States to change the boundaries of the State and relating to the relationship, if any, between the political boundaries of the State and inland waters and its ownership of property.

And I thought it would be helpful since some of those perhaps go to assumptions that lay behind what I was saying that I failed make articulate that I would begin this morning but seeking to answer what I understand to be those questions.

But first with the respect to the constitutional power of the United States, once a state is admitted as a member of the Union then its political boundaries cannot be changed by Congress without the consent of the State except conceivably by some exercise as a treaty making power in which we were forced to see property.

That was decided or stated in Mississippi against Louisiana, 202 U.S. 1 at 40, I was then speaking of political boundary.

Second, Congress may not take the property with which a state enters the Union except perhaps by the exercise of the right of eminent domain.

Third, we assume that Congress may not be what children use to call Indian givers.

That is if it yields property to the State with no strings attached.

Now, we take it but it may not take that property back except by an exercise of the power of eminent domain.

It seems to us that none of those questions are involved in this case for at least three reasons.

But first, we say and I will elaborate fine a little later, that California’s political boundaries never did include and do not include the areas that are in dispute.

And second, we say that California’s inland waters never included at the areas in dispute even if those areas were within her political boundaries.

In other words, inland waters are the outer limit of inland waters and coast line are not synonyms for political boundaries.

And Pollard and Hagan, the right, property right that Pollard and Hagan carried to the property under inland waters did not carry a right to the property under the sea all the way out to the political boundaries.

Consequently, boundaries as I say do not necessarily coincide with coast line.

They may coincide.

The boundaries may go beyond the coast line and it is possible that the boundaries limit where the coast line may be but that is not involved in this case.

Now, I suggest that those problems are necessarily true.

Both ended the decision in the United States against California and under the Submerged Lands Act, but first as United States v. California.

In that case, California’s political boundaries unquestionably extended three miles beyond the coast line.

Indeed, California’s argument as stated by the Court was that her political boundaries as she was admitted to the Union extended three miles from the coast line and the Court held that nevertheless the United States had the paramount property rights in the three-mile strip and so that it cannot thought, have thought of the two as coinciding.

In the Louisiana case that followed the California case, the Court said, the matter of state boundaries has no bearing on the present problem because — and indeed in the Texas case where it was argued with Texas came in to the Union with political boundaries as the result of a treaty going beyond the three-mile limit.

Now, the Court said, even if they did, Texas surrendered whatever ownership she had had out to her political boundary and came in with any rights to the property under the sea limited to the three-mile strip.

And I think that the second Texas and Florida cases extending the grant holding that the grant under the Submerged Lands Act went out to the political boundaries of those states as they were admitted up to three — up to the limit.

Certainly, it did not hold that the inland waters of those states went out to the original political boundaries.

Indeed, the decree defines it all in terms of a distance from inland waters.

So again, they couldn’t have been taken to be co-extensive.

If you look at the Submerged Lands Act, again, it seems to me entirely clear that Congress assumed that the political boundaries and the coast line, which of course includes the outer limit of inland water, could be very different things that these were not identical concept and I notice last night, the number of points which make that very plain.

Archibald Cox:

The first I may refer to the text to the statute again in the back of my brief on page 2 a, Section 2 (a) (2), which happens to fall in 2 (a), defines lands beneath navigable waters to mean all lands permanently or periodically covered by tidal waters up to but not above the line of mean high tide and seaward to a line three geographical miles distant from the coast line of each state, there’s one expression.

And to the boundary line of such State, there’s another and different expression where in any case such boundary had existed at the time such State became a member of the Union or it’s heretofore approved by Congress, extends seaward beyond three geographical miles.

Of course, that means three geographical miles from the coastline.

So, if the Congress must have thought they were different.

Again, Section 2 (b), the last half of it, “but in no event shall the term ‘boundaries’ or the term ‘lands beneath navigable waters’ be interpreted as extending from the coast line more than three geographical miles into the Atlantic or the Pacific or more than three marine leagues into the Gulf.

Well now, there again, you find the two expressions.

It’s all the more important to this case because this was put in as a limitation against an anticipated to extraordinary claim as to where the political boundaries were located.

And of course, it wouldn’t be a limitation, if coast line meant political boundaries.

You’d be defining one — you’d be defining the limit in terms of the very thing that you were trying to cut off, then again, if you look over at Section 4 which does have to do with the political boundaries of the State rather than its ownership of property.

Now first, the seaward boundary be it original the coastal state is approved at three miles.

Then any State admitted subsequent to the formation of the Union which is not already done so, may extend its seaward boundaries to align three geographical miles from the coastline.

Now, the point is the same when I was trying to make before under these are contrasting usages and not equivalents.

And a little further on, it speaks of its doing this without prejudice to its claim, if any, it has, that its boundaries extend beyond that line which is a line three miles from the coast line and therefore, the political boundary can’t be conceived of as being the same thing as the coast line.

Hugo L. Black:

Does the Act mentioned political boundaries?

Archibald Cox:

Well, I think what it’s speaking of boundary, it means political boundary quite clearly.

Hugo L. Black:

I have looked at it.

I was just wondering you have mentioned that word anyway.

Archibald Cox:

It does not use the term political boundary.

It uses the term boundary in such a way I submit as to make it clear that it is talking about political boundary.

But it does not use the word political because it speaks to the boundaries as which it’s submitted.

And indeed that of course was the whole point that the decision in the United States against California said that ownership and political boundaries don’t go together.

That the United States owns thing in this soil that are within the political boundaries of the State and the purpose of the Act was up to this three miles from the coast line limit to restore that equivalence of political boundaries and ownership but up to the limit.

I emphasize that.

Arthur J. Goldberg:

Mr. Solicitor General, what is difference between that the rights under this Section 7 or Section 4?

You said, nothing was on the undisputed question (Inaudible).

Archibald Cox:

Well, I think it’s had — as I read it, it had several consequences.

First and probably the most important, was to protect the Gulf States which we’re claiming more than three miles.

Second, I think that as you read the whole thing, it becomes clear that this section is talking about political boundaries and not about ownership.

That is the whole sense of Section 4 and that this simply says, “Well, this Act can’t affect any claim to wider political boundaries that the State may have had.”

And it — that seems to me Mr. Justice, to be what it means all the way through.

Archibald Cox:

Furthermore, even if I’m wrong in that, I don’t think I am but assuming that I am.

Then I think the most affect that it can be given is that this is part of the purpose of leaving some things where they found them and leaving the question of what inland waters is for example where they found it.

But I think it really relates only to political boundaries.

Hugo L. Black:

I didn’t recall using the word political boundaries in the California case, did they?

Archibald Cox:

I guess not expressly sir, no.

But you spoke of the boundaries that which she had been admitted and you said that they did not fix what she owned.

I think that’s quite clear from — indeed that was the holding of the case necessarily.

And I used political boundaries in an effort to contrast boundaries as it was there used with ownership of property which is a — it was held in that case to be an entirely different question.

Now, the third reason I say that the question of the power of Congress to cut off the states ownership is not involved in this case is simply that the Submerged Lands Act does not purport to take anything away from the states.

It purports it can grant them something.

It purports to grab them the ownership of the submerged lands out to a certain limit and whether their boundaries extend beyond that limit is irrelevant because they did not own it anyway.

Even so they’re boundaries did extend beyond that limit.

So, that brings us back I think to the fundamental question.

First, as I sought to argue yesterday, the case turns on what is the meaning of ‘inland waters’ in the Submerged Lands Act and I was arguing, indeed I spent most of yesterday arguing the next point and that is that the term ‘inland waters’ was used in the Submerged Lands Act to carry forward this status quo that was set.

William J. Brennan, Jr.:

(Inaudible)

Archibald Cox:

Yes!

Yes.

William J. Brennan, Jr.:

Now, as I understand that Act (Inaudible) the shoreward of that line.

Archibald Cox:

That’s right.

In fact, she claims everything three miles shoreward of that line.

William J. Brennan, Jr.:

(Inaudible)

Archibald Cox:

I don’t — excuse me, I misspoke myself.

She claims everything shoreward of a line thee miles seaward of that line.

Yes, excuse me.

William J. Brennan, Jr.:

Now, within that line, is that what the Congress (Inaudible)?

Archibald Cox:

Well, she has — as I understand it, she has really — yes!

Yes, on the premise of their inland waters.

William J. Brennan, Jr.:

Perhaps, I’m — (Inaudible).

Archibald Cox:

Oh, no.

No and neither does California.

William J. Brennan, Jr.:

Well in some (Inaudible).

Archibald Cox:

No.

No, no.

We think that those statutes do had one purpose and only one purpose and that is to indicate where the inland rules applicable to vessels control and where the international ocean rules control.

William J. Brennan, Jr.:

They’re just traffic rules.

Archibald Cox:

They’re just traffic roads on the road we would say.

Now, in the Louisiana case, if and when they ever get here, Louisiana will contend.

It relies on that because in that instance it happens that the coast guard line is placed way out in the Gulf.

But here, it’s apparently placed way in and–

William J. Brennan, Jr.:

(Inaudible)

Archibald Cox:

And that — that’s right.

And of course, this is terribly deep water and ocean ves — going vessels use.

Now, I should say that there are some small points in these bays that we would agree were harbors.

For example, we would agree that up if you can remember Monterey Bay, that’s not on this map.

It’s sort of a hooks right, comes around in like this and the shore comes out, so this way, we would agree that these little points up here are harbors.

If you’ve been to Monterey, we would agree that the area in which you see in fishing vessels anchored and up there at the docks is a harbor.

There’s not — that’s not being argued about here.

But we can see.

Then there may be a few little points up next to Santa Barbara that comes the same way as harbors that —

William J. Brennan, Jr.:

Well, I notice from the (Inaudible), you don’t rely on this?

Archibald Cox:

We don’t rely on them.

No.

Arthur J. Goldberg:

(Inaudible)

Archibald Cox:

No.

We would agree —

Arthur J. Goldberg:

That Congress was so —

Archibald Cox:

Yes.

You may — and we would agree that the question is one of the interpretation of the phrase ‘inland waters’ and if Congress wanted to give all this away.

I — it could do it.

We think it didn’t do it.

Archibald Cox:

I — and we don’t think somebody raised the question yesterday.

We don’t think there’s any chance they will in this instance because it’s quite clear what they thought about this particular claim.

Now, they — the point as I say, I was trying to make yesterday on the basis of the legislative history as well as the sense of the statute and continuous usage all up to that point, was it the Court — the Congress used ‘inland waters.

To me and whatever the Court meant and whatever it had meant in this litigation up that point.

There is one argument that I didn’t quite get to that bears on them and then I’ll move along.

California says, “Well, the phrase ‘inland waters’ is somehow to be equated or almost equated with historic boundaries.”

I’m not quite sure which they say.

Because there were many expressions in Congress to the effect that the purpose of this Submerged Lands Act is to give back to the states what they’d always thought they’ve owned.

I want to make three comments.

Byron R. White:

(Inaudible)

Archibald Cox:

The boundaries which she was admitted, yes.

Byron R. White:

(Inaudible)

Archibald Cox:

Yes.

The — there were three points.

On the first, I would want to find out if that was a general slogan that had a political value.

We’re giving back to people what they always thought they owned.

It was not anything that was used to precisely to the extent that it had a precise meaning.

I think it was quite clearly not related to specific areas but related to a theory of law, the theory that Pollard and Hagan applied within the — to the three-mile strip within territorial waters.

Although it also related to a theory at least in the Gulf that the Pollard and Hagan rule applied out to these states boundaries.

But in the Louisiana case, the Court — the second Louisiana case, the Court made it quite clear that what the Submerged Lands Act was doing was restoring as it was said in the Congress a relationship between territorial waters and the State’s ownership property.

Now, the second thing that is quite clear is that there was no intent to give every coastal state.

Whatever the State’s lawyers might claim that it could show that the state had once thought it owned.

Of course, that was the result in the Louisiana case.

Louisiana didn’t get what is says it thought it owned.

It also was made quite clear in the colloquy that I read yesterday between Senator Holland and Senator Douglas and later Senator Holland and Senator Kuchel that there was no purpose here to give California the waters of this overall unit, south of that Point Conception that that was being left there.

They thought it was a pretty bad claim.

If the Supreme Court did something surprising and gave it to California, so she won alright.

If they did what she expected in California laws is alright and there’s simply no purpose to change the situation.

And finally, this clause to which I’ve referred so often, the final clause to Section 2 (b) is perfectly, plainly a limitation that says that more than three-mile — you don’t get more than three miles from the coast line regardless of what you can show about what you expected your boundaries would be.

And the history shows that it was put in for that purpose to cut off any claims based on what people thought their boundaries might be.

Arthur J. Goldberg:

The section that you refer to here, Mr. Cox —

Archibald Cox:

I don’t think — our view of Section 9, Mr. Justice, I’ve never studied it.

Our view of Section 9 is that — oh, no, I don’t think we think that Section 9 —

Arthur J. Goldberg:

(Inaudible)

Archibald Cox:

Yes.

Arthur J. Goldberg:

(Inaudible)

Archibald Cox:

Yes.

Arthur J. Goldberg:

(Inaudible)

Archibald Cox:

Confirms by our joint based on —

Arthur J. Goldberg:

(Inaudible)

Archibald Cox:

Yes.

I confess I don’t look that but my quick impression is that you’re quite right.

Now, my second main point as I stated it yesterday.

When each of these is built on the other, they aren’t all reasons why I should win.

I’ve got to make each proposition as I go along.

My second main point is that the term ‘inland waters’ as used in prior decisions, specifically United States of California but also the Texas and Louisiana case, refers to the waters over which a nation asserts exclusive sovereignty for the purposes of international relations.

I really argued this point yesterday and arguing the first point.

We think that’s true essentially for three reasons.

The first that inland waters and coast line are — especially inland waters is a term which has meaning in international relations.

That’s where people talk about it.

Now, the only other place I know where they talk about it is in a certain number of insurance policies speak of inland waters and I can’t find in the ordinary places of looking any other references of inland waters.

Potter Stewart:

Oh, they do that Justice Brennan, this morning are already mentioned another place where it’s relevant.

Archibald Cox:

That’s true.

I — it where there it is a term that is sort of defined by the very Act itself.

Potter Stewart:

And yes — when it is regarded where the international rule or the inland rules to there own or they own.

Archibald Cox:

Yes, yes.

But it may be one or two others but I think it my clients is essentially sound that it is an external relations that term has its chief usage.

The Section — second, we point out that this was the way and the term was defined in the briefs in the original California case.

And it seems to us for the reasons I stated yesterday to be the way the term it was used to the opinion in the California case.

Third, we emphasize that no one had any trouble in understanding when this case went to the master, that that was the way the term was used in the opinion in the California case.

Archibald Cox:

It was conceded by California as well as contended by the United States and held by the master.

I found right in these two points, the — if I’m right in the first point, then of course, the masters report immediately becomes relevant and has just the same relevance that it would have had if we were here in 1953 or 1954 and he canvassed all these issues and except on the two very minor points resolved them in favor of the United States and we think his report is entitled to very great weight.

William J. Brennan, Jr.:

Mr. Cox, what remains in the way that — something further (Inaudible).

Archibald Cox:

I should think that — I don’t think that question could be answered exactly at this time.

There are two things that might remain to be done by a Master but nobody can say now.

The first is that we might fall into dispute with California, about how some of the criteria that his report establishes apply to other sections of the coast.

I don’t foresee that happening but it could happen or there could be section which conceivably isn’t covered by any of the criteria that he laid down.

Second I suppose it is possible, although, I think it’s unlikely on the California coast that we could get over — get into a dispute over question or fact about what is the headland at some point or how do the tides run at some point but I would suppose that if the Master’s report — the Master’s report is confirmed or confirmed with such changes as the correct makes, either at our request with California that that would substantially settle this dispute.

I find it hard to believe that we could resolve the rest among ourselves.

William J. Brennan, Jr.:

(Inaudible)

Archibald Cox:

Oh you would have to — that’s part of the Master’s report.

You would have to resolve that question.

Oh, yes.

The remain — they remain but still a number of points.

William J. Brennan, Jr.:

(Inaudible)

Archibald Cox:

He said it was the lower low.

William J. Brennan, Jr.:

Lower?

Archibald Cox:

No, excuse me.

William J. Brennan, Jr.:

I’m wrong.

I’m very sorry.

He said it was the average of all lows of the lower of the two tides, lower low as it is called.

William O. Douglas:

But he talked in terms of mean.

Archibald Cox:

Wait a minute.

I’m told about that I’m — you’re confusing that as even further.

Potter Stewart:

I thought you were happy with the Master’s report in this area and on this subject.

Archibald Cox:

We are.

I am very sorry again.

I knew I would get things all mixed up somewhere on this case.

William J. Brennan, Jr.:

(Inaudible)

Archibald Cox:

Yes.

Archibald Cox:

That’s right.

It’s a matter of going back over records to averaging out the records for 18 1/2 years.

William J. Brennan, Jr.:

(Inaudible)

Archibald Cox:

Well, I should — I just can’t believe but the difference is ever going to turn out to be large enough so that we at California can’t work them out.

If we can’t, I would think it would be a job for our Master but I would hate to think either the United States of California was, you know, this is a matter of a few feet either way and I would think this must be true amongst of the other points.

Tom C. Clark:

(Inaudible) artificial structures on the shore.

Archibald Cox:

Well, our disagreement was about the artificial structures.

We now agree with him as to artificial structures.

So far as they were in being on the date of the enactment of the Submerged Lands Act that we do still disagree as to the future whether that has an impractical importance is a question.

Hugo L. Black:

This would devastate it.

Archibald Cox:

Well, we would that that it was unwise to determine what structures can be built in terms of our — to have ourselves which interest about the oil enter to that position but technically, you’re right of course.

I’m going to leave those points including the lower low water and the low water to my brief.

It just doesn’t seem to me their details so that it’s worth asking of course all I’m here.

Now, the mark of this to that seems fairly — I can’t follow them myself.

William J. Brennan, Jr.:

(Inaudible)

Archibald Cox:

Well, I think the next point that I am clear on Justice Brennan and that is if inland waters has the meaning, we contend, to which that it refers to the external relations of the United States, then the rules governing the determination of what are inland waters for the purposes of international relations are those established by the executive branch.

Hugo L. Black:

(Inaudible)

Archibald Cox:

Well, I think we must distinguish — I think we must distinguish between two things.

I would not assert of course as a matter of international law that the Secretary of the State may make inland waters anything he wants to make inland waters for international purpose.

Indeed, as we conceive it, the whole function of the rules of international law is to set a limit on what the states may claim.

A state may not claim everything that it can claim as a matter of international law.

In terms of what this Court would do in domestic litigation, I should think that if it were the set policy of the executive branch to say that the water’s halfway out in to the Gulf of Mexico where part of the territory of the United States.

Then this Court would not go behind that.

Arthur J. Goldberg:

What about the reverse?

Archibald Cox:

It’s the reverse of that I could reach my case on.

Arthur J. Goldberg:

But both the secretary states said that there to the right (Inaudible).

Archibald Cox:

I would think that if the executive branch said that Canada was part of the United States, that in domestic litigation, if executive branch had rarely said that and had acted that way.

I would think that this Court would consider itself bound by the determination of the executive branch.

Arthur J. Goldberg:

What do you mean (Inaudible)?

Archibald Cox:

No, I don’t understand that that would be the consequence of it all.

Arthur J. Goldberg:

(Inaudible)

Archibald Cox:

Well, I would say that if the executive branch made this determination in the conduct of international relations and then acted on it in the conduct of international relation, not just for the purposes of litigation that it creates other nations in that respect.

Then I would say in any reasonable case, I’m always a little worried about these extreme cases but then in any reasonable case, this Court would not go behind that determination.

I think this is very clear Mr. Justice on the authority.

For example, the first case in which this came up.

You will recall that we — that there was a considerable dispute after the Louisiana purchased as to whether the United States obtained the territory between the Iberville and Perdita Roberts.

I am — whether it had became a question in domestic litigation over titles and the Court said that the position of the State Department, the Chief Executive and the Congress on then, it’s simply would accept and they had said that we did get the territory, that was the end of it.

In J. Jones against the United States, it was a question whether Navassa Island was part of the United States and the Court said, it’s been determined by the Executive Branch and Congress that this is part of the United States and that’s the end of it.

The reverse —

Arthur J. Goldberg:

Excuse me.

Could the United States now form easy international policy, the Court and pays exclusive — pays in the San Francisco Bay?

Archibald Cox:

If San Francisco Bay is for international purposes.

Clearly, inland waters of the United States.

There are no claims more that we would take.

Arthur J. Goldberg:

It is because United States doesn’t assert the question.

So, I am asking the question —

Archibald Cox:

No.

But if we’ve done it, you mean can we get rid of it?

Arthur J. Goldberg:

No, but can you deprive California —

Archibald Cox:

No.

No, no.

Arthur J. Goldberg:

— if you deprive California?

Archibald Cox:

But that — no.

I’m not suggesting that the Unites States can say that international relations required us to deprive California or something.

Potter Stewart:

Well, but right now, I think I’m might saying that foreign shipping — foreign vessels have a right of vessel passage in the San Francisco Bay —

Archibald Cox:

No, I don’t think so.

Potter Stewart:

— aren’t they?

Archibald Cox:

No.

No, no.

(Inaudible)

Potter Stewart:

You mean California could keep any ships out of San Francisco Bay?

Archibald Cox:

No.

Then when we get a question as to whether California’s power was preempted by federal regulation under the Commerce Clause but it would not be because of the status of the bay in international law.

Potter Stewart:

Well, if Commerce Clause or the international or all the power in international relations that the executive —

Archibald Cox:

Yes.

But that was the equally true of Monterey Peninsula.

Potter Stewart:

Yes.

That’s right.

Archibald Cox:

But it doesn’t — it is unrelated to the question —

Potter Stewart:

To the question.

Archibald Cox:

To the question here.

Potter Stewart:

I agree with you.

That was I would define.

Archibald Cox:

That’s —

Byron R. White:

Executive could roll back the harbor’s definition to six miles instead ten?

Archibald Cox:

Well, as you remember first thing this morning, I’ve stated that there might be some constitutional questions on rolling back and what I have last said was intended to be subject to those questions.

But —

William J. Brennan, Jr.:

Well —

Archibald Cox:

— there is no problem.

There is no problem in this case of rolling back.

There’s — there’s no suggestion that any things been rolled back whether with respect to the property rights of the State.

Byron R. White:

But there is question that has been rolled out in the —

Archibald Cox:

That there be a question, there’s one detail that I think would come up better in its place as to whether the change in the international boundary results in a change of ownership as between the State and the United States because this case has, what I regard is the most troublesome point in our case.

He said after a little abasins to California, so as not to get cross lies with their argument, he said, “With my real case is this, I agree that inland waters is a matter of external policy.”

And I say, that when the inland waters are extended by action of the United States, the state boundaries brings out along with it.

That of course — that argument of course accepts, I’m sure but it pays would agree with this, except all the premises that I have been trying to establish including the premise, indeed, I just see relies on the premise I’m now trying to make that the Court will be guided by the determination of the other branches of the government as to what is the territory of the United States?

That’s what it really comes to; it’s just like a piece of land.

William J. Brennan, Jr.:

Now either to control this boundary —

Archibald Cox:

Control.

Control that.

Archibald Cox:

Now, there was a question before the Master as to what — by what part of the executive branch’s action do you look.

Before I go on to that message, there’s one thing wrong.

This is not a peculiarly American rule; for example, the Court of Appeal in England held, when the question came up there’s been accident in Bristol Channel.

The Attorney General came in did something we didn’t do here.

He came in with his tentativeness to what the position of the crown was.

That’s the case of the Fagernes, which is cited in our brief and the Court said that certificate saying that Bristol Channel is not part of the territory of the Crown at the end of the matter and refused to go any further.

And that now here, there are two ways before the Master.

We sought to establish, what were the criteria that governed the executive branch in the determination of water, inland waters?

First, we did introduce some evidence letters from the State Department setting forth those criteria and they’re printed in the back of my brief.

Second, since the Master ruled that they were not — they having been written residence in 1950, or there about, were not conclusive as to what was the policy of the United States in 1947 which was what he felt is the decisive question.

He receives voluminous evidence on how the Government actually had acted and with that evidence in front of him, he then made his report.

Now, we think for reasons stated in our brief that he was wrong, that the letter should be regarded as the evidence of the policies of the executive branch.

I don’t care to argue the point because it seems perfectly clear to us that the historical evidence in the background sustains the view that the Master took.

And I now propose to take up those various criteria as stated by the State Department in its letters and as shown by the act of practice.

And show that under those criteria, one of the areas in question, do not belong to California because they are not inland waters as — by the criteria the executive branch has applied and then the course of doing that, I will come to the argument about Monterey Bay and the springing lives justified.

Could I ask you a question at this point.

Your premise is that the rights determined on your premises are to be determined as of the time of the passage of the Submerged Lands Act.

Archibald Cox:

Yes.

Rather than at the time that the litigation of the dispute arises.

Archibald Cox:

Yes.

What I’m getting at is this, if United States now taking international, what I mean, the executive view of what international law on this field is, if the Submerged Land Act had been passed today, you’d been arguing for 24-mile?

Archibald Cox:

That is correct.

Right?

Archibald Cox:

That is correct.

And therefore, if the treaty it gave rise to the 24-mile limit have been in existence at the time of the Submerged Land Act, likewise it would have been a 24-mile inland water that the attitude of it.

Archibald Cox:

Well, if I think that I would have to be — I would have to have I would say that there must also be some statement by the Secretary of State or Executive Branch saying that we accept the treaty as applicable in defining our boundaries.

But we’ve done that.

Archibald Cox:

We’ve accepted it and yes, that —

What I am wondering is whether the concept that you are arguing for isn’t an off the original on whether Congress acted with that rigidity or whether —

Archibald Cox:

Well, I think —

At least — at least the condition of the affairs as respect at the time of litigation when the dispute arose is isn’t a more realistic test and the one that you’re suggesting.

Archibald Cox:

Well, may I say two things?

One, this is the point in our case that gives me the most trouble, quite frankly.

If I had to say what is the weakest find in your case?

I would identify this one except perhaps for some silly little detail, alright.

Second, I would like to postpone this directing myself to this point until I get to Monterey Bay specifically.

I’ve been trying to go from the general to the particular.

This is a question Justice Harlan that affects only Monterey Bay.

There is no other point at which this question makes a difference and I will deal with it when I get there.

Alright.

Thank you.

Hugo L. Black:

Do you consider that as your main responsibility?

Archibald Cox:

Monterey Bay and only Monterey Bay meets that there second part of the definition of a bay that is to say.

It satisfies the current international rule that qualifies a bay.

It must not only be an indentation which can be caused by a line 24 miles or fewer across headland to headland.

But it must also contain more water that will be enclosed in a semi-circle with a diameter equivalent — equal to the closing line of the bay.

We have — we have agreed that if the 24-mile closing line controls then we have no argument about Monterey Bay.

We might —

Hugo L. Black:

Being — being what?

Archibald Cox:

Being an inland waters.

Hugo L. Black:

Isn’t part of the ocean or to the landlocked bay?

Archibald Cox:

Well, we would say that it was landlocked in the sense that we understand the term to be used.

They think —

Hugo L. Black:

We drew a distinction which I have — I don’t want to bring it back to the subject.

We drew what I felt was very clearly statute in the between water, land under the ocean, land under — land locked bay pointing to the facts.

We were not deciding though about the landlocked bay and if the power of the Government extended only when it got into this sea itself.

That was the external power of the Government.

Now, I was wondering are you arguing that there’s no evidence would be admissible.

I think you are to show that during all these years, this line has been considered to come along the land up to the point where the bay and could join and then crossover the bay over to the place by the land and could join it on the other side.

Could that evidence could not be admissible?

Archibald Cox:

The evidence was admitted.

Hugo L. Black:

But you think it, if it could be admissible argument?

Archibald Cox:

Yes, sir.

It could that I will deal with it.

It could be admissible under my argument in a precise sense.

It could be one of the criteria, the last one I want to mention.

One of the criteria’s stated by the department of — not stated by, but accepted by the Department of State and by us is that in historic bay maybe inland waters, even though it does not satisfy the other definition.

Now, I shall have to — time doesn’t run out on me —

Hugo L. Black:

But I don’t want —

Archibald Cox:

— and discuss at some length what kind of evidence is necessary to make out in historic bay.

Hugo L. Black:

Are you going — are you going to argue what would be the Government’s position if you are wrong on your major premise that this was not inland waters?

Archibald Cox:

If this is inland waters as used in the Act, it seems to me, then we lose.

That that’s what happens —

Hugo L. Black:

Well, are you going to argue — do you have to defend on the Act, the Act which gave away the land?

Archibald Cox:

I don’t depend on it.

Hugo L. Black:

Did they — did they attempt at all to define what was the — are you going to decide this line, ancient line of California which was California within its territorial limits?

Archibald Cox:

I think —

Hugo L. Black:

I’m not talking about all these differences between coast line and political line and so forth but I find nothing about politically, something about territorial line.

But if this was in the territory of California, is it your claim that Congress took it out?

Archibald Cox:

No, sir.

It is not.

It is — if at first, I think I use the term political line in exactly the sense that you use the term territorial line because I’m sure Your Honor would agree that the territorial line did not mark the outer limit of the state’s ownership.

The State did not own out to its territorial line in the sense Your Honor just used.

That was the holding in the United States against California.

Hugo L. Black:

What we held in United States against California was that the State did not own any land underneath the ocean, underneath the sea.

We pointed out to that particularly had to belong to this government to take care of the foreign —

Archibald Cox:

Yeah.

Yes.

But the —

Hugo L. Black:

But we left open the question of inland waters specifically.

Archibald Cox:

That’s quite true.

But the territorial line of California at that time did include part of the sea and therefore you cannot, I submit, if you reiterate the case have held that California owned the property inside the territorial line.

You must have held that it didn’t.

Hugo L. Black:

It did if Pollard was correct.

After which we pointed out.

As I recall Pollard was out Mobile, Alabama, the fact at the same kind of an inland water officiated, did officiated in inland water, Is there a little difference between as I’ve see it?

And —

Archibald Cox:

I think —

Hugo L. Black:

— what I have is that — if as to whether, frankly, the Master should consider this to determine whether this was a part of the well recognized ancient, historical, territorial boundary of California at the time it became a city.

Archibald Cox:

Well, the Master —

Hugo L. Black:

That would depend on this Act over Congress giving away part of the land.

Archibald Cox:

Well, may I say these two things.

One, I — I’ve asked Your Honor to reconsider what you held in United States against California because I really think it was a little different from that.

But I can’t — if I’m wrong, I’m wrong, I can’t add what I’ve already said.

Second, I want to make a claim that we deny and the Special Master denied that the boundary of California as California was admitted included any of these waters.

Whatever you mean by boundary?

It did not, we say, run out around the islands.

It did not we say, run on a closing line of any of these bays except San Francisco Bays and the others meeting the description.

It’s —

Hugo L. Black:

I told you what’s being as I understand it.

Well, I don’t know — well, I don’t know how this case would go.

I have no idea, I — I am myself and yet, but your — your argument is as I understand it, the line of California goes along the land and when it gets to a landlocked bay, such as this or any other, landlocked bay.

But then, just into the land and follows the land rather than following going through the landlocked border.

Archibald Cox:

I wonder, I think that I can answer that question directly.

I think I’m going to be speaking to that point in just a minute, if I may, alright.

Now, as to the principles that the Master replied, the first principle when as the State Department states it, the Master found it and way of we think always replied it, is the territorial waters begin at the low water line along relatively straight coast?

As I understand it, there is no dispute about the general rule.

There is a dispute about whether the low water line means as we think it does the average of all low waters or whether it means its California thinks it does on this coast whether of two types, two different heights of tides whether it names the average of the lower waters, that intriguing detail I leave to my brief.

The second rule comes to what Mr. Justice Black was just raised.

We say that on coast with minor curvatures, not amounting to bays which I will define very exactly later.

Archibald Cox:

Not amounting to bays, the territory or other estuaries, harbors and the like.

The territorial sea, that’s the coast line, begins at the low water line, alright, and its inner and outer boundaries, if necessarily, follow the sinuosities of the coast.

Unlike instead of going point to point subject to the exception about bays as we defend which I will come.

I could illustrate this very quickly on this map which shows up in different colors here that it did in my office, that’s the problem.

We say that the coast that the marginal sea, the territorial sea, is the light blue line and plus the dark blue line.

In other words, it follows around the sinuosities in each island has its own territorial sea.

We put San Francisco Bay in dark blue because it does meet the definition of bay and is landlocked within what we understand to be the meaning of landlocked.

And therefore at that point, the line would go across roughly under the Golden Gate Bridge.

Now, as a corollary to that proposition, we say that territorial waters and therefore the outer inland — outer limit of inland waters begins at the low water line around islands and within straits that connect areas of the open sea and you’ll see here that we have a three-mile belt around each of the islands, and that we show Santa Barbara Channel which is begins at Point Conception and runs east.

We show in red because it connects what we understand the areas of the open sea.

Arthur J. Goldberg:

(Inaudible)

Potter Stewart:

Now I have to ask questions because I’m already confused enough to that but are all of these islands more than three miles away from the coast?

Archibald Cox:

Oh, my!

Yes!

60 to 70.

Potter Stewart:

Much more.

Archibald Cox:

Much, much more.

Potter Stewart:

And if — if an island where within three miles of the coast and where would the inland waters?

Archibald Cox:

If the islands where within six miles of the coast because the territorial waters would include the whole thing, unless, unless, the strait connected areas of open sea.

Potter Stewart:

Well, I just go ahead in mind and then what?

And then what would it —

Archibald Cox:

Then the policy of the United States would be that that was the not inland sea.

It would be territorial waters which you could sail through it but it would the inland though — inland waters.

Potter Stewart:

But the ground underneath it would go on to California, you concede that?

Archibald Cox:

The ground underneath it would belong to California, we concede that.

Potter Stewart:

Alright.

Archibald Cox:

Yes.

Now, the Special Master accepted these three rules as he said without embarrassment of doubt.

He found the United States as traditionally taken the position that the baseline of the marginal belt is the lower water mark following this sinuosities coast and not drawn from headland to headland, except that its bay is not more than 10 miles wide the baseline is a straight line drawn across the opening of such indentation.

The supporting evidence is set forth in his report and that length in our brief; I think it would be a waste for the Court’s time for me to attempt to go through it because it does have to be looked at very precisely with emphasis upon the exact words and the incidents.

Archibald Cox:

I would call your attention particularly to the statement of Secretary of State Baird in 1886, where he very clearly sets forth this rule applying it to islands.

It’s interesting because at that time, he was speaking of our own coastline.

Most of our history we’ve been engaged in debates about other people’s coast lines.

There he was speaking of our own coast line in Alaska and he said, “If we’re going to take the position Atlantic, for six-mile bays as it was then, and that they can’t go headland to headland then we’ve got to agree over in Alaska and the Pacific that we are bound by the same rules, and that’s essentially on the broad the position that we’re advocating here as a matter of very important current policy of the United States, I may say.”

This is not just a matter of heads.

California, argues in favor of what she calls straight baseline.

She says that whatever coast is indented or whether there are islands that you leap from point to point and I’ve — these show up so far as the areas in this case is concerned and the first at Monterey Bay where she wants jump across.

Then she gets down San Luis Obispo and she wants a straight line there.

Then when she gets Point Conception, she says, “We’ve jumped 21 miles or 24 miles out to San Miguel and then we jumped around from island to island, point to point.”

Now as I understand that her straight baseline and the reason what I did and the upper part of the coast was project this theory.

I did — I do emphasize my projection, California does not necessarily take that position.

I was just trying to show how it would work out if applied consistently.

She bases the — her argument on two things.

On the Norwegian Fisheries case that decided in the early 1950’s and the Geneva Convention which we’ve referred to before which was signed in 1958 ratified by us in ’61.

The Geneva Convention states that in localities where the shoreline is deeply indented and cut into or if there’s fringe of violence along the coast, then the method of straight baseline joining appropriate points may be employed in drawing the baseline from which the breadth to the territorial sea is to be made.

Now, we say that that provision in the Geneva Convention is irrelevant for three reasons.

In the first place, we say that the Act was enacted in 1953 and was a grant as of that time, a grant in present and that — from then on, only the rules of property law, boundary law apply.

Second, we said the California Coast does not by the wildest stretch of the imagination meet the description in the Norwegian Fisheries case.

If you look at the big map instead of a few super impositions of particular areas.

You’ll see that the two coasts aren’t comparable at all.

My friend Mr. Hayes here, he may have an argument that his coast to somewhat likely Norwegian Coast, California Coast, we think it’s the altogether different.

But the third and much the most important reason is that the straight baseline method is permissive.

Its states what a state made of.

It steps in the very language.

It says that straight baselines may be implied.

And there is another Section immediately after this or sentence which says, “The coastal state must clearly indicate straight baseline on charts to which due publicity must be given.”

Now, the United States has never applied the straight baseline method ever —

Potter Stewart:

Suppose implicit in this party argument is that this is a decision exclusively for the United States to make, the California would make.

Archibald Cox:

Absolutely.

Potter Stewart:

California can’t make this.

Archibald Cox:

California cannot decide where we will put the limits of our territorial sea or our inland water under an international treaty and we — I’m not going to stop to emphasize all the points of involvement on this.

I do want to emphasize most empathically that the United States Executive Branch on Foreign Relations people.

And defense people are very much opposed to straight baselines in other parts of the world.

They try to discourage people from using straight baselines.

And this of course means, of course, is one has to do in all relation that we kept go drawing a lot of straight baselines ourselves and that seems to us to be of the utmost importance and a complete answer to any argument based on the Norwegian Fisheries case or the Geneva Convention.

What was this — I asked you, did they accepted Defense Department point of view?

Archibald Cox:

Ah, there’s a wide diversity and Norway of course, draws direct baselines.

Other nations that take far more expensive views, we do this pressure do take and more large notion of what is a territorial sea in three miles.

But our policy as of last Friday remained very clear on this.

If that is the policy as the executive branch sees.

Now —

William O. Douglas:

What happened on Friday?

Archibald Cox:

Well, I just — it’s just the last I know about it, Mr. Justice.

William O. Douglas:

Does the change is fast as that from (Voice Overlap)?

Archibald Cox:

I’m quite sure this is far better, far to the conviction who changed over the weekend.

I come now to the point as to what is a bay.

Now, we say that to qualify as a bay constituting inland waters.

An indentation must be landlocked area, a landlocked area that can be close by line not over ten miles long.

Landlocked was used early in international relation in speaking of bays without much of any definition and I’m not able to say exactly what people meant by landlocked.

I don’t think anybody knew.

I was interested yesterday when Mr. Hayes drew his illustration of a bay, that he drew something that was really an indentation, and I think landlocked does suggest that meaning.

Now, as the matter of the development and I what have supposed that that was the same in which Mr. Justice Black used it and the Court used it in the California case as a matter of the evolution of our executive policy and of international law, landlocked has come to have a very exact meaning.

It incorporates the semi-circle tests that I stated little earlier.

At one time, it looks as if we go develop along the lines to what’s known as the Boggs formula.

Monterey Bay curiously would not qualify under the Boggs formula.

However, as I said before, we do not stand on that.

It qualifies under the semi-circle test and our only objection to it is in terms of closing them.

William J. Brennan, Jr.:

So if these Boggs formula might not be appropriate formula to semi-circles?

Archibald Cox:

We think it would not be appropriate.

William J. Brennan, Jr.:

It would not?

Archibald Cox:

Yes.

William J. Brennan, Jr.:

That the Special Master replied the Boggs formula?

Archibald Cox:

The Master applied the Boggs formula, alright.

William J. Brennan, Jr.:

That is why we accept this essentially.

Archibald Cox:

No, because the Boggs formula is stricter.

We’re being generous in saying that we think we should be governed by the semi-circle tests which came to prevail and we shifted our positions.

We attack some of it in the brief.

We shifted our position at our expense not for any other reasons, alright.

So much time has elapsed that I think the question of whether the 24-Mile Bay Rule is applicable to Monterey Bay is when that I ought to leave to the breach.

I did undertake to discuss it but it involves all kinds details Mr. Justice and I’m getting off closed to the end.

It is fairly covered in our answered to our last good brief, alright, and we do stand on the position that this was a grant in presenting that this is the way other grants to the states —

Byron R. White:

But they have a weak point at the brief?

Archibald Cox:

What?

Byron R. White:

But you said that you have weak point at the brief.

Archibald Cox:

But I deny that I have weak point.

Byron R. White:

Yes.

Archibald Cox:

The other base of San Pedro, Santa Monica, and San Luis Obispo are all failed to meet our definition of landlocked.

And I may say, we think that what is called San Pedro Bay, alright, most clearly is not landlocked or bay in any sense.

What’ve they got is one point and then they try to find a place somewhere along the coastline to which to draw a straight line.

Potter Stewart:

But that’s the one with the big breakwater, isn’t it?

Archibald Cox:

Well, we would agree everything inside the breakwater goes to this —

Potter Stewart:

It used to be a big naval station, out in California.

Archibald Cox:

It may well be.

Yes, but we agreed that they get inside the breakwater.

There’s no dispute about that very upper end.

Now, the third or I perhaps got my numbers mixed.

The remaining rule that I should direct myself to is California’s claim that these bays are historic bays in terms of the international relations of the United States, alright.

We acknowledge of course that there is such a Rule that our bay may be come an historic bay.

If it becomes an historic bay in the sense in which I use the term, it then becomes part of the inland waters.

Potter Stewart:

Regardless of what it makes any of these bays.

Archibald Cox:

That is correct.

And that illustration of an historic bay is Chesapeake Bay, now there is Delaware Bay and they are bays as historic bays because we’ve always exercise jurisdiction of it.

The points on which we stand here because first, we say that since we are dealing with matters of external policy or international relations, it require some action by the United States to assert sovereignty over these areas to make them into a bay.

Now, like what California may have done or may not have done, is not sufficient to make the body of the water an historic bay within the international law.

Now, the Master dealt with this very effectively.

I would simply emphasize two things — fir — three really.

But first with would respect to these bays, California has parts to only one instance with respect to Monterey Bay and one instance with respect to Santa Monica Bay, in which she actually exercise in a jurisdiction over those.

Even in the sense that one would exercise them over territorial waters.

She never did any others, actually.

With respect to San Pedro Bay, California never did anything or San Luis Obispo so far as we know.

The only thing she cites with respect to San Pedro Bay is a distinct — is a decision by a federal district judge dismissing an indictment which required the crime of piracy to be committed on the high sea.

Well, that certainly was the claim of sovereignty by anybody.

He was dismissing an indictment and of course, what he did was the very practical thing.

He convicted the defendant on three other counts of a crime that was a crime regardless of the status of the waters, so that I don’t think that can be made into claim with jurisdiction by California but not only where these very fragmentary things.

There were things directed against the Americans or American Corporation.

They have no sense where things that would have come to the attention of the foreign policy making parts of the United States, so that there can’t be any statement of it that we failed to act even fell so our foreign relations were implicated.

And third, they were things that were done contrary to what by the 1920’s were they established foreign policy criteria of the United States.

And what we say is essentially, the most important is that under those circumstances a state cannot acquire for the United States territory and make it part of their territory which is sovereign to the United States in the sense of international relations.

And this is essentially what Special Master said I think in his opinion.

Hugo L. Black:

Are you saying that this argument that the Master made that finding and that it supported by United States, is that the argument really you’re making the here —

Archibald Cox:

Well, as to part of it, it is a legal question.

I think that I’m — it’s a mixed conclusion.

I’m saying that so far as it’s actual, it is certainly supported by evidence.

So far as it rest on the principle that a State’s acts cannot acquire a territory for the United States.

It’s a correct rule of law.

The territory acquiring the foreign policy doing must be done by the federal governments.

But the Master also did find Mr. Justice Black that until 1949, California never had asserted jurisdiction.

That, we say is a factual finding and we say, that’s supported by evidence and should be conclusive.

Now, the other point that I would like to emphasize, it goes to California’s historic claims of whether they are stated in terms of boundary or whether they are stated in terms of historic bays for international purposes.

And that is that California’s boundaries simply do not include the areas in dispute.

Archibald Cox:

What California has to rely on is that the statute is that her Constitution with which she was admitted in 19 — 1849, after drawing a complete circuit in terms of an outer limit of the State’s boundary which did not include these Channel Islands.

Then he said after it also all islands, bays, harbors along the coasts and that’s all it said, alright, and the admitting Act took her in with that Constitution.

Now, I don’t know or what the expressions also all islands, bays and so forth meant to the people in 1849.

The bays where laid — big bays, were labeled bays on many chart that point out that the Bay of Bengal, Biscay Bay, the Bay of Fundy, Campeachy Bay are all labeled as bays on a lot of charts, but nobody contends that those are inland waters.

There’s no indication in the California Constitution as to what they meant.

It would to seem to me that the most plausible meaning was that California was being taken in with those islands, bays, and harbors to which the United States would be entitled under the rules of the United States.

It was then applying as a matter of its external international relations and it is most improbable.

Add a period when the United States was engaged in fighting for the six-mile bays with Great Britain that they would have taken California in using bays in an entirely different sense.

If anything is to be inferred, that would seem to me to be the most plausible inference.

But I must admit I don’t know anything very clear one way or the other.

Potter Stewart:

I wonder if we attack on the end of the boundary description or —

Archibald Cox:

Yes.

Potter Stewart:

— territorial description on –.

Archibald Cox:

Well, it’s tracked down to the end of a line described and meets and bounds as it run around what is now the State of California and then it said to a point three miles from the ocean.

And then it said, northwesterly to the point of beginning and then it said, also.

Potter Stewart:

So its — I wonder if a part of the five boundary or part of an included territory.

That’s what the —

Archibald Cox:

Well, if you look on our brief on page 173, right in the middle of the page.

You’ll see it first describe, we didn’t run the land or boundary because it seems unnecessary, alright, then it ends up — then some of the lines of the 42nd degrees of latitude were place in the beginning.

Also, all the islands, harbors, and bays so long it is adjacent to the Pacific Coast.

Potter Stewart:

So it’s added to meets and bounds the boundary description.

Archibald Cox:

That’s true.

Yes.

Hugo L. Black:

What happened to the islands then how they’ve been operating, who’s operating it?

Archibald Cox:

They — the islands are unquestionably part of California.

The question is whether California is entitled to the waters between the islands and the shore?

Hugo L. Black:

Yes.

I was asking about that because you referring to these facts, now they are?

Archibald Cox:

Yes.

But we have agreed that the islands of that — that the interesting thing Mr. Justice Black, is that when you read and it takes great care like all boundary description.

Archibald Cox:

When you read the statutes enacted over the years by the California legislature describing the boundaries of the counties, the Constitution requires to the State to be divided into counties.

The county boundary lines are set forth by meets and bounds.

I think it is fair to say always in terms that suggest that these waters are not included within the meets and bounds description.

And in some instances, in terms very specifically that put the state boundary are only three miles from the shore of the land.

Now, this has been a long case and I’m not going to ask the Court to go through those details here.

But I would emphasize that part of our brief because it that seems to me tremendously persuasive evidence of how the legislature itself construed the earlier State Constitution and as part of the total context of whether they ever claimed to make this historic bay.

I do want to emphasize, alright, just three points in this connection.

One is that in describing and with the Court is too good as to turn to the little map folded into our brief.

In the very back, you will note the Point D about the center up with the top.

Now — no, excuse me, Point C.

There is one that’s toward the head of San Pedro Bay.

I simply want to emphasize that there is one statute enacted in the 19th century, that draws the line between Orange County which is south of White Sea in Los Angeles County to the north, and it describes it that takes C which is Coyote Creek and it describes the boundary at one point as running three miles from the center of the mouth of Coyote Creek to the Southwestern Boundary of California.

That’s what I would say literally accurate that the point is the same as I make which clearly shows where that legislature thought the boundary road.

Now, the second point I particularly want to emphasize in this boundary description, is that there was a statute passed in 1919, cutting Ventura County off from Los Angeles County and it describes the boundaries of Los Angeles County in terms of a complete circuit with a line paralleling the coast.

And then it says and also Catalina and San Clemente Islands and a three-mile line around them, which of course were the very boundaries for which we contend.

The third thing that I want to emphasize with respect to the boundary description and you need to look at the map to see this, San Nicholas Island is in Ventura County by explicit statement in a statute.

Santa Barbara Island is in Santa Barbara County by explicit statement in a statute.

Now, it takes — first, I thought it couldn’t be done.

It takes some imagination to get continuous lines that don’t overlap.

It will put Santa Barbara County in Santa Barbara Santa Barbara Islands in Santa Barbara County and San Nicholas Island in Ventura.

You can do it Justice Goldberg with the great big J that hooks out in around it.

But if you’ll read the boundaries of legislature wrote, they just can’t have had in mind.

And this seems to us to be almost in mathematical demonstration confirming our understanding of the other boundaries.

Now, counsel had come up with —

May ask you this point, if the case is going to be decided on the premises that you’re arguing now which is California’s premise, wouldn’t this have to go back to our master?

Archibald Cox:

Now, I might get involved premises now because I’m arguing it’s not an historic bay.

I realized that, but —

Archibald Cox:

I wouldn’t think so.

I think that the — I think the evidence is here.

We didn’t try to case on that theory.

Archibald Cox:

Whether we could find more evidence, I don’t know, but I don’t think we wanted to go back.

I think we are contend to —

Potter Stewart:

California on that order.

Archibald Cox:

— take it down the California’s premises.

I did want to talk just a little bit more about the location of these islands because that counsel has come up with the most marvelous explanation, alright.

They’ve got the maps in the back of this green brief which show that the army engineers and the land officers of the Department of Interior in 1887.

Unlike the legislature, it knew where Santa Barbara County — what county was it in.

It was in they say, all the time because nobody know at Los Angeles County.

And since the island is in Los Angeles County and not Santa Barbara County, then of course, there is no difficult.

Well, now I wonder what would happen, if we came to Court and argued that Santa Barbara County — what Santa Barbara Island was in Los Angeles County on that basis squarely contrary to the statutes of California.

The lines are a matter of fact, I thought I did time but I don’t.

The lines on those two maps if you look at them are only dotted sort of broken projections out into the water.

They do not describe a boundary running around the islands the way California’s briefs as I read it, says, they do.

Those lines are I would think unjustified extrapolation it is either simply broken dashes with no closing line between them with at all.

Why the map make you did that?

I don’t know.

The current Brad McNally commercial ad does both, it puts county lines surround the island.

It also has these broken lines intended to show in a general way when it went but plainly the State’s statute is more important than anything that a map can do.

To begin our final portion of our argument, we would like to meet the government on exactly the ground which is chosen to argue on this morning.

We were asked yesterday what would be our position if there were no Submerged Lands Act or if our basic position was wrong.

We have demonstrated what we believed to be the proper approach to establishing the coastline under the Submerged Lands Act.

This Court has already ruled and we believed correctly that Congress intended to measure the area involved in the Act in terms of the historic boundaries as approved by Congress and not in terms of US Foreign Relation as of 1953 or any other date.

Assuming, however, either that the United States is correct in its position or that they were no Submerged Lands Act.

We believe that California has shown in its brief with its claims as to inland waters are consistent with international law and a properly ascertained United States international relations practice and whatever they may be deem the proper date whether it is 1849, 1947, 1953 or today.

As we have shown in our briefs the far over its base or other landlocked water was accepted generally long before the rule relating the three-mile limited territorial waters became crystallized.

That’s in 1793 Attorney General Randolph in his opinion concerning Delaware Bay, phrased the international law concerning jurisdiction over bays.

Similarly, in 1882, the Second Court of Commissioners of unit Alabama claims in the case of the Alleganian also traced the same concept in holding Chesapeake Bay to inland waters.

Now, what factors are present in the Delaware and Chesapeake Bay cases?

If you gentlemen will analyze these cases, you will find that both Delaware and Chesapeake opinions are premise on certain factors all of which are equally present in the case of California’s Bays.

And I want to make it clear that the purpose of this first argument, I’m talking only about the three bays, Monterey, San Pedro, and Santa Monica.

Archibald Cox:

One, the claim to these bays did not violate international law as it then existed.

Two, the waters of the bays are bounded by land of several of the states of the United States and therefore, by the United States.

Three, the bays did not lead from the sea to the dominions of any foreign nations.

Four, the process and interest to the United States and the respective States in this case Great Britain also claimed that bays are part of its territory.

Five, the States of the United States bordering the bays of exercised jurisdiction over the bays.

Six, the United States is exercised jurisdiction over the bays by creating revenue districts which clearly in compose the bays.

Now, let us turn to the California bays and apply these tests to the California bays.

First, in 1849 and 1950 acclaimed it all of bays along the California coast required that the California — for the part of the territory of California was consistent with international law.

Two, these bays are bounded by the land of the State of California and the United States.

Three, the bays do not lead to the dominion of any foreign nation.

Four, California’s predecessors in this case in Mexico, claimed the bays are part of their territory.

Five, the California is always claimed the bays and its constitution and exercise jurisdiction over them.

And finally and perhaps as importantly as any other point, the United States in 1849 created a revenue collection district which included and I quote, as it appears in our opening brief at page 58, “All of ports, harbors, bays, rivers, and waters in the mainland of the territory of Upper California which subsequently became a State of California.

Arthur J. Goldberg:

(Inaudible)

Well, I haven’t — in haven’t finished yet.

I think you’ll see what I get prove my argument, its not circular and it’s right to the point, if I may finish it.

Now, we say that Chesapeake and Delaware Bays are inland waters then surely the Bays of California inland waters, irrespective of any presently used technical geographic criteria.

Now, as our State’s Supreme Courts said in the Stralla case and discussing the criteria determining what are inland waters and I quote, the of 14 Cal.2d 631, “The usage and custom appears to be established to the effect that when, is here, the facts are that the bay is not and cannot become a pathway between nations that exclusive jurisdiction has been asserted under both the present and former governments that has been recognized as a bay and it’s a harbor within the territorial boundaries of the states as described by the law of the land.

The Courts have decided in accordance with the jurisdictional claim.”

California believes that the Government and the Special Master plays an unwarranted strictness and burden on California as to the quantum and burden on California as to the quantum and quality of proof required to established California’s claims and particularly the bays as historic waters.”

Recently, a great deal of study has been given to the Doctrine of Historic Waters as evidence by the decision of the International Court of Justice in the Anglo-Norwegian Fisheries case, the two UN monographs which are referred to on both our briefs and the Government’s briefs and recent books on bays by International Law Scholars.

As the International Court of Justice said in the Anglo-Norwegian played a case, historic waters should be defined as follows and I quote from the opinion of that case which appears on the reports of the International Court of Justice at page 116, “By historic waters are usually meant waters which are treated as internal waters but which would not have that character where it not for the existence of a historic title.”

The beginning point of an analysis to this doctrine as we point it out — as it was pointed out at the UN study, the recognition that the doctrine is an exception to other geographic criteria for delineating inland waters but it’s a separate method of delineation of equal dignity.

And this is extremely important, we say, to geographic criteria.

A necessary corollary to this view is the rejection of any requirement that prescriptive rights are titled by adverse possession must be established in order to qualify an area as historic waters.

The basic requirement is the peaceful exercise of authority without any foreign interference or objection.

Furthermore, the particular facts and circumstances of each area must be examined in order to ascertain whether that area constitutes historic waters.

In the case of California’s bays, our briefs are set forth and detail a long recognition of the status of each bay from the Spanish period to date.

We point out that our Constitution included all bays without exception.

The three cases without hesitation rely on the Constitution as well as on the Spanish and Mexican history.

These cases do not rely solely as was indicated by the Government on acts of jurisdictions such as fishing regulation but each delves into the history to recognize a pre-existing situation and recognition of a particular status of these bays in California.

And now, we come to what I think is the probably the most important single point I would make with respect to the Government’s intention in this area.

And that is this, that each of these cases are three cases on bays has received worldwide publicity and recognition and continues to receive such recognition in the most recent literature and the subject to historic waters.

We have cited Commanders’ Stroll’s book and Mr. Buschey’s book, but even more important than this and this we think is the key.

Two of these cases, Ocean Industries and Carrillo were cited and digested in the State Department’s Official Digest of International Law by Mr. Hackwood.

This is noted in our closing brief at page 85, note 55.

The next point is that in 1950, the State Department prepared a memorandum which is called the “United States Memorandum on the Regime of the High Seas”.

This was annexed to a note, to the United Nations dated January 6, 1950.

It appears in the International Law of Commissions Yearbook for 1950, Volume II, at page 60; it is cited in our closing brief that pages 39 and 40.

And this memorandum was published by the UN and later cited by Norway to the International Court on the Fisheries case.

And the importance of this memorandum is that, in this memorandum prepared by the State Department, two of these cases which the Government is now objecting were cited in support of the position that these bays were in fact bays.

So it’s our position that in 1950, when the Government is now trying to argue here with a couple of letters which we say we’re drafted up primarily for the purposes of this legislation for this argument of this case that these bays were not bays at the same time they were telling the United Nations with the purposes of the International Relations Policy that this bays are in fact bays.

And I invite your examination to this memorandum which we have cited because we say, “It shows conclusively as of this time as to what the International Relation’s position of the United States as to these bays really was, not what they say it is now.

William J. Brennan, Jr.:

Which bays?

Archibald Cox:

This included Ocean Industries which is Monterey Bay and People versus Carrillo which is the San Pedro Bay.

There was no mention made Hackwood nor in this memorandum if I remember of the Stralla which is the Santa Monica Bay case.

Where are they on the brief?

Archibald Cox:

The citation appears in our brief.

This enclosing brief at pages 39 and 40, the memorandum itself was in the yearbook of the International Law Commission for 1950, Volume II, at pages 60 and 61 also cited in our brief.

Now, the recent literature on historic waters and I’ve mentioned a minute ago is emphasized or it’s exemplified by US Naval Commanders Stroll’s book which is called “The International Law of Bays”.

This book is published in 1963.

Commander Stroll lists only seven historic bays in the United States.

Now, what are these seven bays?

They are Penobscot Bay, Long Island Sound, Delaware Bay, Chesapeake Bay, and the three California bays which we’ve cited.

Another writer, Buschey who has written on this subject has cited two of our bays as historic bays among the few United States bays which he have cited as historic bays.

We say that these California bays are not historic bays that it must be concluded that now that the areas mentioned are historic waters and that no such waters exist in the United States.

We believe this is not a tenable conclusion.

Now, the Government complained and I should mention these points of certain points about our evidences to the bays.

The United States as the Acts must three of those United States and not California or on the other alternative that California’s Acts are invalid if disclaimed by the Federal Government.

We have shown, we believe, on our briefs on the Acts of the constituent member of the federation can have validity internationally without regard to the assertion by the United States which we say has occurred of the validity of these Acts.

Archibald Cox:

More importantly, not only as the United States not disclaimed the California cases but as we had pointed out, it has affirmatively relied on that.

As far as the rest of the world is concerned, these cases are Acts of the United States.

The Government claims that we must not only show that these bays are historic bays but that they are historic inland waters.

We have showed that bays however defined have always had the States is different from that of a territorial sea, the marginal boat and that such State is now called whatever that they have been called in the past, “inland waters”.

Potter Stewart:

There are bays, I mean properly geographical areas covered by water which are popularly called bay which are not inland water.

Archibald Cox:

We would concede that immediately.

There are references to bays for example of literatures such as the bay on this bay, a very large water and —

Potter Stewart:

Inland and so on.

Archibald Cox:

Right.

But we would — we would point out that the — to Your Honors, that are many bays which are considered historic bays in International Law and which are recognized as such by the United States and particularly up new from them where with that a great deal with American Fishing Group here for almost 200 years which historic bays have headlands, for example, in the case of Concepcion Bay, it is wide as 50 or 60 miles.

Far wider than the headlands of any other bays which are involved as historic bays within the United States.

And I don’t believe that anyone would seriously contend on the State Department would seriously contend at this point that those bays are not historic bays for International Relations purposes.

Potter Stewart:

Oh, I think these — as I understood the Government, they really conceded that we could have a historic bay that they need not any of the other criteria of the — I mean the water bay.

Archibald Cox:

That is correct.

And we say that is the proper test —

Potter Stewart:

The fact it wasn’t an historic bay.

Archibald Cox:

We say this is the proper test not only under that law as it existed before 1958 or ‘64 as you may see with respect to the applicability to Geneva Convention.

But then in 1964, it’s made perfectly clear in the Geneva — when the Fifth — in convention which is now on effect incidentally the last nation the required ratify it in September, so it is now in effect as an actual convention or treaty of the United States.

In that convention and it’s made perfectly clear that historic bays do not have to meet all these technical rules about what you have heard this morning.

Arthur J. Goldberg:

(Inaudible) this problem in this Court.

Archibald Cox:

Well, we say — we say that it has been perfectly clear in the law that historic bays as such do not end from an examination of Hackwood in this memorandum.

We feel confident that she will come to the conclusion if this is so.

And we —

Arthur J. Goldberg:

(Inaudible)

Archibald Cox:

We don’t think they said that and I don’t think you’ll find anything —

Arthur J. Goldberg:

(Inaudible)

Archibald Cox:

No.

The letters really deal, if you’ll examine them closely, I think in the proper context with what the technical rules are for bays which are not historic bay.

You will find in one of those letters and I don’t want to take the time to put my finger on it now.

But I think if you will examine it later, you will find somewhere buried in the letter a statement to the effect that always rules don’t apply to historic bays which is still a rule on the Geneva Convention.

Arthur J. Goldberg:

(Inaudible)

Archibald Cox:

We say — we of course, in our basic position don’t get there.

But secondly, if we do get there — right, right.

But if we do get there, we say this, the State Department has never said with respect to these bays.

They said they’re reversed.

They haven’t made a positive —

Arthur J. Goldberg:

(Inaudible)

Archibald Cox:

They are not really saying that we say.

I don’t like —

Arthur J. Goldberg:

(Inaudible)

Archibald Cox:

Well, I — I don’t understand him to have form that strongly but let’s assume that he did.

I say that that is not the best expression of State Department Policy.

I say that the official digest of the State Department and the official expression of opinion of the State Department to the United Nations has expressed by the memorandum which we have referred to is the expression of the State Department.

Arthur J. Goldberg:

I suppose you said that they filed it with a letter.

Archibald Cox:

I — I would say frankly that we don’t regard the State Department as having a right.

This is really a part of our basic position that we will get to hear in a minute if I have the time.

We don’t regard the State Department as having the right of fixing inland waters for the purposes at least of this Act or for the purposes that we’re here before the Court in this case on.

We don’t — we say that they can not by a simple unilateral assertion or a simple unilateral statement, convert inland waters of a state into what they may say are not inland waters.

We say that can not be done.

Arthur J. Goldberg:

(Inaudible)

Archibald Cox:

We say that it doesn’t.

We say that it does nothing and we say it for the same reason that we believe this Court said and second in Louisiana case.

We say that these questions are divisible.

In effect, if you — if Mr. Justice Goldberg in the second Louisiana case and the second Texas case, this Court said, “For the purposes of this Act, Submerged Lands Act, we’re going to run this line out ten-and-a-half-mile.”

Now, it’s true for foreign relations purposes.

For the purposes of the foreign relations so far as the United States, maybe the line only goes out three-mile.

You went on to say on that case, very explicitly that there might be different lines for different purposes, that this is a problem of dividing the line between the nation and the state.

Potter Stewart:

Well, It’s dividing the — dividing up the real estate lying under historical waters.

Archibald Cox:

Right.

Right, exactly.

Archibald Cox:

In other words —

William J. Brennan, Jr.:

You have to remember that we did not deal with the other possible problem but it is done in this case namely even with respect with it pro — relief to the matter where you how measure that relief.

Archibald Cox:

We — we agree this is true but we would say this is a matter of logic.

If that Rule is —

If you squeeze more out of those cases than this rather?

Archibald Cox:

Well, we naturally are trying to gain the maximum advantage of the case applied.

Right.

Archibald Cox:

But we say this is a matter of logic, Justice Harlan.

That the segment determines the belt which these States are to get under the Submerge Lands Act is this line.

This Coast line whatever it is.

And if the argument can be made which the State Department — which the Government attempts to make, that this — the inner portion of this area can be determined by State Department Policy and not by historic boundaries or the history — to what the State’s have under the Pollard Rule prior to the 1947 decision in the first California case, then the State Department is in the position of controlling where that area is going to be under the Submerged Lands Act and we say this was not the intent of Congress.

Now, with respect to the overall unit area, we will be the first that can see that our argument is not that strong by the overall unit area, I mean entire Santa Fe — the entire area which covers the area from Point Conception down to the Point Long.

We do now recall the Court’s attention to this fact and we think that this is one of the reasons that if the Court agrees with our basic premises at least that pays but the matter should go back to the Special Master.

You all notice that with respect to Santa Barbara channel, this closing line is only 21 miles, under this 24-mile Rule.

This particular line over here, if I remember it correctly, between the post and capital is by 11 miles.

This is actually between the green line in the west.

We believe that there is a possibility and I emphasize there only a possibility, I want to be very frank with the Court that we could prove that this area under this theory under the present state of the law if permitted to do so is Inland waters.

The Master of course is taking the position it did that this was entirely a matter of external sovereignty.

Really he didn’t give this matter any serious consideration at all.

The only areas that the Master really seriously considered, we say, is the question of historic waters and we say there he was wrong.

Now, I like to spend —

Potter Stewart:

If you don’t — you don’t ask that now to accept your baseline theory but only if — do you think there’s anything to do with it at all with —

Archibald Cox:

No.

And incidentally one further point I would like to make it clear and I think it should best be made clear by using the Solicitor General’s Map rather than our own because it includes the whole Coast of California.

We don’t make a serious contention that usually goes up and down the entire State of California using the Straight Baseline Systems and we don’t want the Court so to understand nor do we want the Court to understand that in drawing a line across Monterey Bay, for example, because that we — we consider that involving a use the Strait Baseline System.

Our contention here is based entirely upon the doctrine of the historic water.

It has nothing to do with the Straight Baseline System just because a straight line is drawn across the miles with the bay.

The only area in which the Straight Baseline System might become applicable is again down in the area involving the Santa Barbara Islands where these islands do will probably friends in the coast.

We say there are similarities but these islands and this bring the islands to the islands off the coast of Norway.

The Government of course strenuously disagrees.

Archibald Cox:

We think this is a matter that would have to be going into in extenso substantial and additional proof would have to be submitted.

Arthur J. Goldberg:

That would be admission to the members of (Inaudible).

Archibald Cox:

Well — no, we are not — we are not promulgating baseline as such.

We simply say that you could draw the lines around here and enclose the theory.

We don’t want to leave a theory would — we’re going to follow the Straight Baseline Theory as such.

This I want to make —

Arthur J. Goldberg:

(Inaudible) are you claiming that that section is inland?

Archibald Cox:

Yes.

We claim this entire —

Arthur J. Goldberg:

(Inaudible)

Archibald Cox:

We say that primarily, particularly, with respect to this area here that it lies on the historic content.

We say that with respect to the entire area that we construe our Constitution as we point out on our brief to allow us to go on the line in the General Northwesterly direction and this provided in the Constitution.

And as the drawing in that line in the general northwesterly direction would cover a line which goes along the outer side of the island.

Tom C. Clark:

With — would California getting all the intermediate —

Archibald Cox:

Yes.

That would be —

Tom C. Clark:

— sea?

Archibald Cox:

Yes, sir.

Tom C. Clark:

Is that through all the sea intermediate is all the islands in the Coastline?

Archibald Cox:

That is our claim sir.

Tom C. Clark:

Your claim is that historic — of your historic argument that is that control of the islands which is based upon the preposition that there is a control of the intermediate water?

Archibald Cox:

Not the control of the islands, sir.

The Constitution contains —

Byron R. White:

Ownership of the island.

Archibald Cox:

The ownership of island contains specifically that is a separate provision at the end of the statute itself where it says all islands based and so on are the in the boundary description.

All islands base are included.

We think a logical and consistent explanation of that clause that’s the first clause about drawing the line in the northwesterly direction.

It requires the inclusion of the intervening waters to be put — to be considered as inland waters and in which of the boundary of the State, and we think this is particularly true with respect to this area.

But I want to make it clear once more and I want to leave this feeling with the Court very strongly that is that this argument we believe is a different argument and should be evaluated in a different basis and argument with respect with these three bays.

We say these three bays down on their own feet without benefited any other argument so that the most that we’ve already given when we accept.

Potter Stewart:

And you said that this argument is one that you should have a right to make for the Master —

Archibald Cox:

That is correct.

Potter Stewart:

— not recognized them.

Alright.

Archibald Cox:

No.

Our position at this point is that you could not, in our opinion, considering what the Special Master did, make a proper evaluation.

We think with respect with the bays, the Master did do enough, that there is enough in his report, that there’s enough from the cases and enough for the law to make an evaluation at this time.

Hugo L. Black:

And what do you asking us to do with reference to this report?

Archibald Cox:

With respect to his —

Hugo L. Black:

From that time.

Archibald Cox:

Pardon?

Hugo L. Black:

On those bays?

Archibald Cox:

With respect to the bays, we would ask you to rule on our favor and to rule at the bays, our historic bays, and at the bays are heretofore been are properly defined by the Supreme Court of the State of California or in Northern District California and the Southern District of California.

Hugo L. Black:

Is that base on — is that based on asking us to view the facts?

Archibald Cox:

We think that there are enough facts in the record and in these cases to make that determination.

If the Court felt that its necessary advisable into send the entire amount fact to the Master —

Hugo L. Black:

You’re saying — you’re saying in this fact to the determination was wrong?

Archibald Cox:

Yes, sir.

Hugo L. Black:

That one is here?

Archibald Cox:

Yes.

We think the basic —

The basic thing that’s wrong with the Master’s position is its legal position.

In other words, his legal conclusions which we think this Court can easily examine were — were wrong.

We think that the fact’s said the basic facts that where there are probably sufficient for this Court applying the correct law to arrive as what we would believe would be the correct decision or agency.

But we think that with respect to the other area, it might be difficult.

We are not averse so I want to make this final point.

We are not averse to having the entire matter turned back to a Master for determination of the facts as well as the law.

But we do feel that this Court should establish the basic principles which should be applied in making such a determination.

That is the very least that we hope that we will receive from this case.

Now that completes my argument.