United States v. Louisiana – Oral Argument – April 08, 1957 (Part 1)

Media for United States v. Louisiana

Audio Transcription for Oral Argument – April 08, 1957 (Part 2) in United States v. Louisiana

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Earl Warren:

Number 11, Original, United States of America versus State of Louisiana.

Hugo L. Black:

Mr. Solicitor General.

J. Lee Rankin:

Justice Black, may it please the Court.

This case presents the question of whether the United States is entitled, as against the State of Louisiana, to the lands, minerals, and other things underlying the Gulf of Mexico, lying more than three geographic miles seaward from the ordinary low water mark and from the outer limit of inland waters on the Coast of Louisiana and extending seaward to the edge of the Continental Shelf.

It presents the further question of whether United States is entitled to an accounting by the State of Louisiana for all sums of money derived by the State from June 5th, 1950, the date of the opinion of the Court in the other case, from such lands and minerals.

United States alleges in the complaint that it is entitled to a judgment for the property described, lying seaward from the low water mark, inland waters, that the question is res judicata by reason of the prior opinion of the Court, June 1950, and the decree by this Court of December 11th, 1950 that the rights of the United States were modified to the extent of the provisions of the Submerged Lands Act passed by the Congress which gave the States the right to the lands within three miles of the baseline below water — low water mark or a right to the lands in three leagues but no more in the Gulf of Mexico providing they had a historic boundary for such three leagues in the Gulf of Mexico either at the time they entered the Union or, if it was approved by Act of Congress, on or prior to the passage of the Act on May 22nd, 1953.

The United States alleges that it’s being interfered with in the operation of the properties in the area described by the State of Louisiana that it does not have any relief — adequate relief except in this Court.

It goes on to describe the nature of the interference, the fact that Louisiana brought an action against the United States in the state courts of Louisiana in which it sought to enjoin the further leasing and development of the area, and that that action was enjoined by this Court and that later, a stipulation was entered into in accordance with the order of this Court whereby the properties might be developed and limited leasing provided for by an agreement filed with this Court until this matter could be determined.

Felix Frankfurter:

And the operations are now going on under that stipulation.

J. Lee Rankin:

That’s right, Mr. Justice.

Louisiana alleges a series of defenses, first, a general denial, and then, supplementary allegations to support that general denial and altogether, eight separate defenses.

Seven of the defenses, I will deal with later in seriatim as I reach them in the argument.

The principal defenses in the — as pertinent to their argument and general denial are, first, that the Submerged Lands Act nullified the decree of this Court by the action of the Congress, in that — by that congressional act, the Congress interpreted the decree of the Court and determined that, instead of — of the United States acquiring the property in the manner the Court decreed that it was always the right of the States to have the property which was the subject of the Submerged Lands Act and therefore, they were — it was less in the nature of a quick claim or a grant but merely giving to the States what they had already had for a period since the beginning of the country.

They alleged that the restrictions on the state boundaries are unconstitutional, that the territorial boundary included the Continental Shelf, that the State always had a title to the submerged lands, that the boundary of Louisiana always was the same as the United States since the Treaty of Paris of 1803 when we acquired the Louisiana purchase.

That by the Louisiana Acts of 1938 to 1954, they acquired the right to all of the land in the submerged area from the Cost Guard line to 0.3 leagues beyond that, in the gulf, but they exercise jurisdiction under claims of right since 1949, and they are entitled to judgment.

The position of the United States is that the judgment and decree of this Court is res judicata as to all of the elements except what was carved out by the Congress in the Submerged Lands Act of 1953.

That there is no genuine issue of fact or of law before this Court at this time in the pleadings presented by the parties, that the Court takes judicial notice of its own decrees of the fact that the political branches of the Government have determined since 1793 that the maritime boundary of the United States is only three miles, three nautical miles.

And therefore, no State could possibly have a boundary beyond that of the United State as a maritime boundary on any coast including the gulf.

Hugo L. Black:

What then, is your — on your premise, is the issue (Inaudible) for the United States?

J. Lee Rankin:

The issue before the Court is whether or not the United States is entitled to all of the area beyond the three-mile belt — maritime belt on the gulf outlying beyond the low water mark from the boundaries of the State of Louisiana touching the gulf.

And the contention of Louisiana is that they are entitled to a belt of three leagues measured in various manners out from the — either the Coast Guard line or the inland waters as measured in various ways.

The —

Hugo L. Black:

My question was not — didn’t carry the idea as I intended.

J. Lee Rankin:

I’m sorry.

Hugo L. Black:

I understood you to say that you go on the premise, first, that it’s already been decided that Louisiana did not own the title.

J. Lee Rankin:

That’s right, Your Honor.

Hugo L. Black:

And then, you say that an Act had been passed.

Is it your contention that there’s nothing left except the question of law as to interpreting the meaning of the Act?

J. Lee Rankin:

Yes.

There are certain materials that the Court will have to look at, which it takes judicial notice of in the contention of the United States.

J. Lee Rankin:

And taking those various cases and actions of this Court, and the actions of the political branches of the Government over the years, and the issues as defined, and the decision of this Court in the tidelands cases or the U.S.against Louisiana prior to this date, that there is no issue of fact or law that is material or has any substance before this Court.

And the United States is, therefore, entitled to judgment for the determination that the belt of maritime –and the maritime belt that Louisiana is entitled to is three miles and not three leagues.

Hugo L. Black:

I do not quite understand your addition.

I understood you.

Right now, I don’t understand you.

The first decision, res judicata, determined that Louisiana did not have the title of the right to this tidelands.

J. Lee Rankin:

Yes, Mr. Justice.

Hugo L. Black:

And that Congress came along, with its power to dispose of Government matters, and passed an Act which granted them some interest in the tidelands.

J. Lee Rankin:

That’s correct.

Hugo L. Black:

And that the issue was, I understood you to say, first, what that Act meant.

Now, I understand you to say that you’ve got to look back and behind that Act would represent judicial knowledge, you think, of what?

J. Lee Rankin:

Well —

Hugo L. Black:

If you’re right in your pages.

J. Lee Rankin:

Yes, sir.

You — You look at the Act, first, to determine what Congress granted by reason of the Submerged Lands Act.

And then, secondly, in interpreting that Act or applying that Act, Congress said they were entitled.

All the States of the union were entitled where they bordered upon the ocean to three miles except that, in the Gulf of Mexico, if they had a historic boundary which, at the time they entered the union, extended three leagues or was approved by Congress at anytime prior to May 22nd, 1953, the date of the Act, giving them three leagues in the Gulf of Mexico, they could have up to three leagues.

Otherwise, they only got the three miles.

Felix Frankfurter:

Is that —

J. Lee Rankin:

That’s —

Felix Frankfurter:

And that means grants getting into this specific case that if it could be historically established in that argument because, if he’s here, the motion is stretched.

The conscientious historian reads the conclusion to mean they were excessive to this Court.

That, in fact, at the time that Louisiana came into the Union, they came up next to this country by the Louisiana Treaty, it claimed a right, then it would be three leagues.

Does that mean that the Submerged Lands Act would carry three leagues to Louisiana?

J. Lee Rankin:

Well —

Felix Frankfurter:

Assuming that —

J. Lee Rankin:

It’s —

Felix Frankfurter:

Assuming that the Government — the Court would have to say a few words on examining the record.

Conscientiously, yes, that was — that was the historic claim and exerted upon this town to be exerted by what was Louisiana, before it became part of the United States, was three leagues.

What — assuming — assuming that concludes it, how do you put that in the Court, your submission, would that carry three leagues to Louisiana?

J. Lee Rankin:

We think —

Felix Frankfurter:

Or put it back?

J. Lee Rankin:

We think not.

Felix Frankfurter:

Not?

J. Lee Rankin:

Because of this reason, that whatever the United States’ position was with regard to its maritime belt, it’s binding upon every state in the Union regardless of any claims that it might have had.

For instance, in the case of — for different reasons, in the case of U.S.against Texas, the Court said that assuming, they didn’t examine the question but assuming that Texas had a three-league boundary in the gulf.

When it entered the Union, it obtained a “no submerged lands” because of the fact that it entered on the same basis as every other State, so that the — the maritime boundary of the United States can only be fixed by the United States.

No State can possibly fix it is the position of the United States.

Felix Frankfurter:

I need clarification.

J. Lee Rankin:

Yes.

Felix Frankfurter:

I — I want to be more — I ought to be familiar with the Act, and I’m direct authority in 1953.

What I understood you to say a little while ago is that what Congress granted in 1953 carried only up to the three-mile limit with some exceptions.

J. Lee Rankin:

That’s correct.

Felix Frankfurter:

Now, what was the exception?

That we suppose that there might be a different situation with reference to different states, and the equal footing clause, therefore, though applicable as a matter of constitutional law, might be differently treated by Acts of Congress within its power, as Justice Black said, to deploy the property.

J. Lee Rankin:

That is correct.

Felix Frankfurter:

Now, then, what if — is the equal footing determinative, by itself, of all the right of the State bordering on the sea?

J. Lee Rankin:

We don’t think it is in this particular case.

I was pointing to it just as an illustration of the proposition that the historic boundary of the State of Louisiana could not, according to the contention of the United States, extend beyond that of the United States.

Felix Frankfurter:

Well, then, I don’t — I still — I need more possibility.

If Congress saw fit — if Congress saw it fit to recognize right in Louisiana, going out of — of the supposed issues of historic situation, could it not do so, although it itself were restricted to the three-mile limit?

J. Lee Rankin:

Well, I think Congress was very careful not to recognize rights in anyone in connection with this legislation, any State.

Felix Frankfurter:

What does that exception mean?

J. Lee Rankin:

It — It was giving them an opportunity.

If they were able to prove that they in fact did have such a historic boundary, that they could come into Court and prove it.

And that was the discussion by the —

Felix Frankfurter:

Well, but that’s having proved it.

I’m assuming, hypothetically, that you’ve come into Court here and say, and if I may say so, you were, that that was the evidence —

J. Lee Rankin:

Yes.

Felix Frankfurter:

— that, if so, is there any legal consequence that followed?

J. Lee Rankin:

Well, the legal consequence, if you assume that they could prove that there was any element of a historic boundary that they had —

Felix Frankfurter:

Base it to my question.

J. Lee Rankin:

— before they entered the Union, then it is the contention of the United States that they were bound by the political determination of the United States as to what their limit was at all times from the moment they entered the Union.

Felix Frankfurter:

And that political determination derived from the equal —

J. Lee Rankin:

No.

Felix Frankfurter:

— equal footing clause?

J. Lee Rankin:

No, that derives from the sovereign power of the United States.

Felix Frankfurter:

Well, then, the exception doesn’t give anything because the principle you just invoked would cut it down.

J. Lee Rankin:

That’s right.

The exception —

Felix Frankfurter:

Well, then, I don’t understand what the exception means.

J. Lee Rankin:

Well, the exception was recognized, during the handling of the legislation in the Congress, as giving them an opportunity to examine the question of what their historic boundary was in the courts.

Felix Frankfurter:

But not just as an academic exercise.

J. Lee Rankin:

Well, to try to prove that they had some prior rights which they claimed and the Congress did not see fit to undertake to say that the political boundary of the maritime belt of the United States has always been three miles.

And they said, “We’re entitled to have that examined in the courts like the courts examined many other questions of boundaries and determine what the fact is.”

And it was also presented to the Congress, at the time, in detail by the State Department that the maritime belt of the United States had been held, time after time, by the political branches of the Government to be three miles and no more, and the Congress was well aware of that.

So, they were — they were allowing every state to have a three-mile belt in accordance with the history of the position of the country from 1793.

And they said to the States in the gulf, “If you can prove that you had a historic boundary because of all these various claims you’ve made, despite the position of the United States, you’re entitled to it but you have to deal with this position of the United States, too.

And the courts will have to determine whether it’s possible for you to have any boundary beyond what the United States has.”

Felix Frankfurter:

Let’s see if I issued a fair statement of what you said.

That, although the Act of Congress is typically restricted, as a generality, to three miles and although the Act of Congress — although that was done under representation by the State Department, that has been, from the time the Jeffersons took it, the uninterrupted position of the United States.

Although that was a submission of the State Department as to the right of the Government, and Congress put in the three-mile limit as the generality.

Yet, it has put in an exception allowing them to what you call proof to historic facts that it went beyond.

That, nevertheless, if they do prove — nevertheless, if they do prove it is the question for the Court — this Court to decide whether the State Department was right that three-mile — that three miles is the extent, the full extent, of any assertion of rights by the Government of the United States and that, in it of itself, precluded any State from having anymore.Does that mean to say —

J. Lee Rankin:

That’s — that’s our understanding of it.

Hugo L. Black:

Well, may I ask you, if I may interrupt you.

J. Lee Rankin:

Yes, Mr. Justice Black.

Hugo L. Black:

It kind of gets us down to what the basic issue really is.

If Congress intended to leave it up to prove, as I understand it, what you said at the beginning, you are asking us to take the judicial knowledge of proof, rather than to give Louisiana here as evidence the findings made on the proof that they’re supposed to have gave.

J. Lee Rankin:

That’s correct.

Hugo L. Black:

And we — you finally get down then to the basic issue, as I understand it, assuming that the Act means that they can prove their claim, over this period of time, that there’s more than three miles, the question before us is whether we would take judicial knowledge of the fact which show they can prove whether we will have via hearing — have a hearing now to determine the facts on whether they have — can establish by proof that which Congress, you said, entitled them to more than three miles.

J. Lee Rankin:

That is our understanding of the issue.

Felix Frankfurter:

Well, I’m — I don’t know why I — I think I got in my own mind.

If that’s the issue, that is to be exchanged, that is an issue that is all verging to the conversation and colloquy between you and me.

I understood you to say that, assuming they could prove it, up to the hill, they can’t legally derive any benefits from it.

J. Lee Rankin:

I thought I answered the same question —

Felix Frankfurter:

No, this is just —

J. Lee Rankin:

— the last question.

I’m sorry.

Felix Frankfurter:

Go on.

J. Lee Rankin:

I thought that was —

Felix Frankfurter:

That’s Mr. Justice Black’s question.

I thought his question was we should take judicial notice of the fact that they couldn’t have issued.

Hugo L. Black:

They can’t prove it.

Felix Frankfurter:

Because they can’t prove it.

That’s a very different thing.

J. Lee Rankin:

Well, I — I am sorry.

I answered the question wrong then, —

Felix Frankfurter:

That’s what I thought you said.

J. Lee Rankin:

— because I — what I’m —

Hugo L. Black:

I do not have to enunciate.

Do I understand that, through the Act, it means, it left only any State that could prove, by evidence, that it was entitled to more than three miles of its shores?

Felix Frankfurter:

Historically.

Hugo L. Black:

Historically.

J. Lee Rankin:

Well, if I try to compare the two inquiries, the Act does not say that they can prove that.

It says that nothing that the Act does shall affect it but if they prove all of these things —

Hugo L. Black:

What is the exact language in the Act now at issue which you refer, would you mind?

J. Lee Rankin:

Nothing — I’ll refer you to pages —

167.

J. Lee Rankin:

— 167.

J. Lee Rankin:

The part that is — has a bearing as to the area beyond three geographical miles is the last sentence.

The part set out in Section 4.

Nothing in this section is to be construed as questioning or, in any manner, prejudicing the existing — the existence of any State’s seaward boundary beyond three geographical miles if it was so provided by its constitutional laws prior to what the time such State became member of the Union or if it has been heretofore approved by Congress.

Hugo L. Black:

And I suppose they could prove that, in their Constitution or law prior to that time, they had claimed more than three geographical miles.

What do you say would be developed?

J. Lee Rankin:

Well, under the law, it would make no difference because, by reason of the decision of this Court and by the action of the political branches in determining that we could only have an area for the boundary of the United States of three geographical miles, no State could have a boundary beyond that.

And therefore, there is no issue because the Court would take judicial notice of that.

It, by any number of decisions, has held that it is bound by the action of the political branches in determining the boundary of the Unite States, we think there is — could be no issue as to the fact the State cannot have a boundary beyond that at the United States and therefore, there can be no question that would be — would not be material.

Hugo L. Black:

So that, this would be separate.

J. Lee Rankin:

Yes.

Now —

Felix Frankfurter:

Including without prejudice in claim —

J. Lee Rankin:

That’s right.

Felix Frankfurter:

— that you say the matter of the law confining this Court in adjudicating this contemplation must recognize, no matter what the historic position was when Louisiana came in, the unit for the controlling law of Territorial Water Act of this country, of the nation, is limited to three.

J. Lee Rankin:

That’s right.

Felix Frankfurter:

Therefore, Louisiana can’t go beyond that and can’t have anything beyond it, no matter what.

J. Lee Rankin:

That’s the position of the United States.

Felix Frankfurter:

All right.

J. Lee Rankin:

Now, in —

Hugo L. Black:

Suppose — suppose Congress had simply said they could have nine miles, could it have done it?

J. Lee Rankin:

Well, it’s very possible that they could because Congress is also a political branch.

It’s acting in that sphere and it has certain control over the problems of questions of foreign relations, too.

Hugo L. Black:

So, why could it not attach the condition, that — say, if you had a condition like here, why would it be bound by what it considered or —

J. Lee Rankin:

It could if it intended to do that.

Felix Frankfurter:

Now, this is a question of construction.

You’ve got permission.

J. Lee Rankin:

Yes.

Hugo L. Black:

We could —

J. Lee Rankin:

Now —

Hugo L. Black:

That’s the question before us.

J. Lee Rankin:

Yes.

Now, the particular part in regard to the boundary that the Court is asking about is Section 2 (b).

The term “boundaries” includes the seaward boundaries of the State or its boundaries in the Gulf of Mexico or any of the great lakes as they existed at the time such date it became a member of the Union or as hereto — excuse me, it’s 165, or is heretofore approved by the Congress or as extended or confirmed pursuant to Section 4 hereof.

But in no event shall the term “boundaries” or the term “lands” beneath navigable waters be interpreted as extending from the coastline more than three geographical miles into the Atlantic Ocean or the Pacific Ocean or more than three marine leagues into the Gulf of Mexico.

Felix Frankfurter:

Mr. Solicitor, will you forgive me.

J. Lee Rankin:

Yes.

Felix Frankfurter:

Making a suggestion in your own judgment.

I take it, this much would carry out, the legal question which finally emerged from this land is a more manageable problem of the Court than the facts here because if they can’t establish this, then they’re out of luck.

J. Lee Rankin:

Yes.

Felix Frankfurter:

Doesn’t — do you mind my suggesting to keep in mind that, in your time, an adequate consideration of the facts of this case, as to which I suppose you are less informed and the tables are being unfortunate.

J. Lee Rankin:

Yes, sir.

Then the —

Felix Frankfurter:

Well, doesn’t that affect your argument, Mr. Solicitor?

J. Lee Rankin:

The nature of the grant is set forth in Section 2 based upon the boundary of each state.

All lands permanently or periodically covered by tidal waters up to but not above the line of mean high tide in describing the lands that are the subject of the relinquishment in a later section, and that’s Section 2 on page 164.

Seaward to align three geographical miles distant from the coastline of each such State and to the boundary line of each such state, so that the test is what was the boundary of the State where, in any case, such boundary as it existed, at the time such State become a member of the Union or as heretofore approved by Congress extends seaward or into the Gulf of Mexico beyond three geographical miles.

When the legislation was before the Congress, there is a considerable legislative history about what was intended by this particular language.

And Senator Cordon, at the time, was the man in charge of the bill for the Senate.

And the bill that was finally adopted was largely that of the Senate because the House bill was entirely substituted by the Senate Bill as the final bill that was passed.

Earl Warren:

Mr. Cordon said, in regard to what was intended by the Congress by this action, “The states of the United States have legal boundaries.”

J. Lee Rankin:

It is not a power, part of the power, or the duty of the Congress to make determination with reference to those boundaries or where those boundaries should lie.

It is a matter for the courts to determine or for the United States, through Congress and the legislative organization of the several states to reach an agreement upon.

The pending bill does not seek to invade either problems.

It leaves both exactly where it finds them.

Whenever a question arises as to a boundary, it will be determined exactly as any question of law is determined and the boundary will be established.

The pending measure does not seek to prejudge that issue or to determine it.

Felix Frankfurter:

But you say that the determination of the original true boundary approved beyond it is not for this Court.

I mean, are the facts that we thought about —

J. Lee Rankin:

Well, if the —

Felix Frankfurter:

Do you say that the determination of the boundaries would be irrelevant to the issue because the boundary of the United States is international?

Felix Frankfurter:

The conception by the United States of the limits of its international boundary is gone.

Is that right?

J. Lee Rankin:

The last statement from Mr. Justice is correct, in regard to what is controlling.

However, when you say that the boundary that Louisiana might have had before him —

Felix Frankfurter:

Why should I care if it’s not five leagues in the pleadings if it can’t be more than three miles?

J. Lee Rankin:

It’s immaterial.

And what it had, before hand because the Congress didn’t say whatever they had “before they entered the Union.”

It says “at the time they entered the Union.”

Felix Frankfurter:

I — it’s crystal clear now.

All I’m saying is that the Senate is going to approach it, but you talked about ascertaining the boundary of the State from the nation.

That isn’t accurate because the boundary of the State is not in that cleared facts.

J. Lee Rankin:

Well, in — except, in that, you would — in our contention, the United States would have to say that the boundary of any State of a nation cannot extend beyond that of the United States.

And in finding what the boundary of the State is, you would look to see whatever their claims were and say it can’t be beyond three miles no matter what.

Felix Frankfurter:

I don’t have to worry about it because you can see they are entitled to three miles.

J. Lee Rankin:

That’s correct.

Felix Frankfurter:

So, I don’t have to worry what their new boundary is.

J. Lee Rankin:

The same statement was made by Mr. Holland Senator from Florida, who had a great interest in this legislation in connection with his state, and their claim to three leagues.

A similar statement was made by Mr. — by Senator Long from Louisiana where he said, “The pending measure does not give to Texas, Florida, or Louisiana anything more than a boundary three miles out.

It gives — that merely gives them the right to prove, if prove they can, that the boundary, that is state boundary, I am interpolating, goes beyond three miles.

A similar statement was made by Senator Keagle of California.

Hugo L. Black:

But is it your position that it was more inane what was going on before us would be impossible to prove that the boundary that you’ve got is three miles?

J. Lee Rankin:

It was impossible to prove that, at the time they entered the Union, they could have any boundary beyond three miles because they couldn’t —

Hugo L. Black:

Is there another way that this would lead only leaning in?

The reference is that three marine leagues in the Gulf of Mexico.

Is it the Government’s position that it’s impossible for them to prove that by any evidence prior to this?

J. Lee Rankin:

It would be impossible, according to the Government’s contention, that any State could prove that, at the moment it entered the Union, it had any boundary beyond three miles because that was the historic position of the United States by the political branches and it was binding upon the United States, and every State of the Union would be bound by it.

Hugo L. Black:

But if Congress had decided, however, to say that that was not here — done here, if it is done in connection with what taken place.

J. Lee Rankin:

Yes.

There are some —

Hugo L. Black:

Or we get back to what it intended.

J. Lee Rankin:

Well, it seems quite clear in the legislative history that it did not intend, in any way, to change the rights of the parties in that regard.

But it was contended that the Government suggested, during the legislative history, that Congress should try to fix the line, and it was suggested by those of the Gulf states that Congress should not try to fix any line but leave them on whatever rights they could establish in the courts by reason of the history.

And then, Congress saw fit to take a measure, that was, whatever their boundary of the State was at the time they entered the Union which necessarily, according to Government’s contention, limited them to whatever the boundary of the United States was.

William J. Brennan, Jr.:

Well, does that mean, Mr. Solicitor that, under the statute, all that Congress contemplated that the States would have an opportunity to do, from the Government’s point of view, was that the State could establish that, in fact, the national boundary was not three miles at the time the State entered the Union.

J. Lee Rankin:

The Government believes that would be the only way that any State could satisfactorily show that they had a boundary that was beyond three miles.

William J. Brennan, Jr.:

So that if, as I gather you’re suggesting to us, it can be established from judicial notice of something that, in fact, the national boundary at the time the State entered the Union was three miles, then, necessarily, as a matter of law, the statute is satisfied and the State must lose.

J. Lee Rankin:

That’s correct.

Felix Frankfurter:

So, the three-mile limitation as the boundary of the United States, is that an issue between the Government and Louisiana or do they accept three miles?

J. Lee Rankin:

Well, it is not the accepted — so that it is clearly accepted.

It — there are contentions by Louisiana that the United States recognized the boundary of Texas as being the three leagues at one time, that it recognized a three-league boundary between Mexico and the State of Texas in connection with the Treaty of Guadalupe Hidalgo.

Felix Frankfurter:

These are — these are acknowledgement as to what the State’s boundary was, but the part of the international law position of the Government is mainly three miles.

Is that taken as the norm of the international water right as it’s perceived to be by the United States?

J. Lee Rankin:

As far as the State of Louisiana is concerned, it isn’t that clear, Mr. Justice because they say that the boundary of the United States is established by the relationships between the political branch, the State Department, and the President in saying what our boundary is and what we recognized and the action over the years.

And they say by and despite the history which dates back to 1793 with President Jefferson.

And case after case, including a letter to Senator Connolly by the State Department within the very recent period in which the State Department says the United States has never recognized the three-league boundary in the Gulf and thus, it didn’t recognize, at that time, that if — the reference was merely for the purpose to protect smuggling and nothing more.

And the traditional position of the United States has always been that the boundary of the United States — maritime boundary is three miles and nothing else.

Felix Frankfurter:

Well —

J. Lee Rankin:

Despite all of that, they say, “Well, the United States recognized this about three leagues for Texas and Mexico and therefore, —

Felix Frankfurter:

Actually, it tells and allows geographic facts to be withheld.

J. Lee Rankin:

Yes, that’s —

Felix Frankfurter:

Or, it could have been heretofore approved by Congress.

J. Lee Rankin:

That’s correct.

And if they could say that this correspondents, which is a matter of judicial notice to this Court, and the treaties, and these various things were in fact a recognition by the United States of three leagues, so that the boundary of the United States in the Gulf was in fact three leagues instead of three miles, they would have an issue that this Court would have to determine whether it was three leagues or —

Felix Frankfurter:

Well, what I want to —

J. Lee Rankin:

— three miles.

Felix Frankfurter:

What I want to know is whether Louisiana challenges the general proposition that, as a general view point of national politics, we were guided by as far as the bullet could reach, three miles.

As I understand from what you say, they say, as to Louisiana, we’ve got all this recognition by way of Congress.

But is there an issue that we have to decide or could one take for granted that that is not challenged.

That’s the general policy of the United States since Jefferson’s days.

It was a three-mile limit, although, in reference to those terms under which Texas came in, the terms under which Louisiana came in, and instances in which the United States made a different limit.

J. Lee Rankin:

I don’t think —

Felix Frankfurter:

Is that where the issue lies?

J. Lee Rankin:

I don’t think it would be fair to them to say that they agree that three miles is the limit.

It is the position of the United States that the records, and the treaties, and the action of the State Department is so clear that no one could construe it otherwise, but they do try to construe it.

And we think that the Court takes judicial notice of those various papers and documents and in construing them, could only arrive at the one conclusion.

And then, furthermore, we have the letter of Secretary Dulles in reviewing the entire matter which is set forth in Appendix B, page 176, June 15th, 1956.

And he reviews the entire history in regard to the position of the United States concerning its boundary and three miles being its — the maritime belt, that is, the boundary of the United States.

Harold Burton:

Mr. Solicitor General, did I understand you to a sharp distinction between at the time such State became a member of the Union and the situation before it became a member of the Union?

J. Lee Rankin:

Yes, the language of the Act gives them the right according to their boundary at the time they entered.

Harold Burton:

So, even though they proved that they had, before they entered, the longer three-league limit, it doesn’t make any difference because, at the time that they entered, they lost it.

J. Lee Rankin:

It would be — whatever the United States had at that time, they couldn’t extend beyond it.

Felix Frankfurter:

But they lost it by this principle of law.

J. Lee Rankin:

That’s right.

Felix Frankfurter:

(Voice Overlap)

understand.

J. Lee Rankin:

That’s correct.

Felix Frankfurter:

It may — in short, it gets down whether one may what — this isn’t, from your point of view, a question of geography, but a question of law.

J. Lee Rankin:

That’s right.

Charles E. Whittaker:

Mr. Solicitor —

Harold Burton:

Well, what do you do with — with the phrase that if it is so provided by the constitutional laws, “prior to” or “at the time”?

If the law is “prior to” in Section 4 or, in any manner, fencing the distance of any State seaward boundary provided beyond three geographical miles, if it is so provide by its Constitution or laws prior to or at the time such State became a member.

J. Lee Rankin:

Now, that is the statement that this — this Act shall not prejudice whatever that situation is.

But the grant is dependent upon the description of the boundaries and the fact that is dependent upon what their boundary was at the time they entered the Union.

Harold Burton:

That’s the granting clause rather than —

J. Lee Rankin:

That’s right.

Harold Burton:

— probably this section called.

J. Lee Rankin:

Yes.

Harold Burton:

Thank you.

J. Lee Rankin:

So that, the grant, in view of the decision of the Court that all of the submerged lands belong to the United States, the State could only have whatever the Congress saw fit to give.

Felix Frankfurter:

No matter what it had before?

J. Lee Rankin:

That’s right, because this Court held that they never had in the tidelands cases.

And then, you have to look to the Act to see what the Congress gave — was willing to give to them and the terms upon which it gave it.

And it provided that they should get what was within their historical boundaries at the time they entered the Union or as approved by Congress on or prior to May 22nd, 1953.

Now, there’s no issue between us that Congress ever proved any such boundary of three leagues by its Acts.

So, it’s only a question of what they had at the time they entered the Union, and it’s the position of the United States that they could not have anything beyond what the United States have.

Hugo L. Black:

Even though they would have to take it all.

J. Lee Rankin:

That’s right.

William J. Brennan, Jr.:

Mr. Solicitor, I think you said earlier that it would not be fair to say that Louisiana agreed that there was a national maritime three-mile line.

Would it be fair to say that Louisiana disagrees that there was, at the time of its entry, —

J. Lee Rankin:

I think —

William J. Brennan, Jr.:

— a national three-mile line?

J. Lee Rankin:

I think that their position is that the three miles did not control in the Gulf but it’s based upon treaties and communications which this Court takes judicial notice of.

And — the Government’s position is, it could be only construed one way which is the way that the political branches the Government have said, “This was three miles for this country since 1793 and still is today and nobody, as a matter of law, can dispute it even though Louisiana doesn’t concede it upon the Act.”

William J. Brennan, Jr.:

Well now, if that’s based upon treaties and I take it, other documents, as well as treaties?

J. Lee Rankin:

Yes, official correspondents that you take judicial notice of.

William J. Brennan, Jr.:

Well, would there be fact questions underlying the interpretation of those treaties and —

J. Lee Rankin:

We don’t think so.

William J. Brennan, Jr.:

— the correspondents?

J. Lee Rankin:

We think that you would be bound by what the Government says because, otherwise, this Court would try to say the United States boundary is three leagues in the Gulf per se.

And where the political branches, the State Department, the President are busy before the International Law Committee of the United Nations within a very recent time saying, “The United States’ position since 1793 has been that the boundary of the United States is only three miles —

William J. Brennan, Jr.:

Well, is that to —

J. Lee Rankin:

— from the coast.”

William J. Brennan, Jr.:

— is that to say, then, that there would be — there need not even authority in this Court to examine the underlying treaties and documents.

If those have been interpreted, as you have stated to us, they have been interpreted by Department of State and the President —

J. Lee Rankin:

That’s —

William J. Brennan, Jr.:

— but that we would have to accept those as the interpretations even though, examining them ourselves, we, perhaps, might reach a different — find a different meaning in the previous concern.

J. Lee Rankin:

That’s true.

In — there’s a case, the Nelson case, an early case in regard to the boundary of the State of Louisiana in which that very question came out — came before this Court.

And the Court examined the question about whether the boundary was at the Perdido River or at the Iberville River.

And it was contented by both France and Spain that the boundary was different.

J. Lee Rankin:

Then, the United States Government claimed and this Court said that even though it would arrive at a different conclusion, it was bound by the position taken by the political branches in regard to what —

William J. Brennan, Jr.:

Well then, isn’t that saying that to resolve the issue, at least in the frame of reference that the Government presents it, we need to examine nothing except those political — those determinations by the political branches of the Government?

J. Lee Rankin:

I think that’s correct.

William J. Brennan, Jr.:

Now, what form do those determinations take?

J. Lee Rankin:

Well, those —

Felix Frankfurter:

Did you say — did you say yes to that question?

J. Lee Rankin:

Yes.

Felix Frankfurter:

That we’d need to examine —

Harold Burton:

Need not.

J. Lee Rankin:

Need not view —

Felix Frankfurter:

I suppose that the Secretary —

J. Lee Rankin:

You need not.

Felix Frankfurter:

I suppose that Secretary Dulles’s letter was absolutely controlling on it.

William J. Brennan, Jr.:

That is what’s —

J. Lee Rankin:

That is what I was trying to answer.

Felix Frankfurter:

All right.

William J. Brennan, Jr.:

That’s how I understood it.

J. Lee Rankin:

Did you understand?

William J. Brennan, Jr.:

That’s as I understood you to answer to that.

J. Lee Rankin:

Yes, sir.

William J. Brennan, Jr.:

Now, then, perhaps you’ve already answered.

Is Secretary Dulles’ letter the only thing we need to look at?

J. Lee Rankin:

Well, I think that’s controlling in regard to the entire matter, but we have developed —

Felix Frankfurter:

Why didn’t you have a talk about it?

J. Lee Rankin:

I beg your pardon?

Felix Frankfurter:

Here, you regarded the matter he talked about in that letter.

J. Lee Rankin:

Yes.

Felix Frankfurter:

Namely, what the policy of this country has been regarding the three — regarding the nautical claims in the Gulf of Mexico.

J. Lee Rankin:

And the boundary of the United States.

Felix Frankfurter:

Yes.

J. Lee Rankin:

And —

William J. Brennan, Jr.:

Is there anything else claimed?

J. Lee Rankin:

Well, we have elaborated to try to satisfy the Court that that is supported by the history of this country since 1793 in positions taken by one who get — Government after another throughout the entire history of the country.

And that’s recited also by Secretary Dulles’ letter on page 176.

William J. Brennan, Jr.:

Well now, it was cited also and that’s comprehensive of everything else you’re urging upon us?

J. Lee Rankin:

Well, in regard to the historic boundary —

William J. Brennan, Jr.:

Yes.

J. Lee Rankin:

— of the United States, at the bottom of the page on 176, Secretary Dulles recites the testimony — the fact that the Department of State testified concerning the position of the United States, traditionally supported the three-mile limit.

That is a breadth of territorial waters to three nautical miles measured from low water mark on the shore.

And then, he proceeds to refer to the action back in 1793 under Secretary of State, Jefferson, and delineates the position taken there and also that we protested against the claims of Spain concerning a six-mile boundary for the Island of Cuba and insisted that it was three miles.

And then, he goes on, on page 179, saying, “The position of the United States on the three — three-mile limit has remained unchanged to this day and at no time has this Government followed a different policy regarding the extent of its territorial waters in the Gulf of Mexico.

Freedom of the seas continues to be essential to the national interest of the United States, particularly, in the mattes of commerce, fishing, and defense.

Free sea lanes and air officer over the seas are essential to the maintenance of the preeminence of the United States in commercial shipping and air transport.

Felix Frankfurter:

Mr. Solicitor, is it correct to say that one can start, I believe, with full acceptance of what the Secretary of State has written in his letter?

“I don’t have to go behind his evidence at all myself because they didn’t have to reach — I don’t have to follow them.

I accept the admission that this Court is controlling.”

Starting from there, that letter sheds no light on the last sentence of Section 4, the Tideland Act, except insofar as it involved that the United States for itself did not make claim beyond the three-mile limit, is that correct?

J. Lee Rankin:

That’s correct.

Felix Frankfurter:

All right.

Sot he crucial question —

J. Lee Rankin:

Now —

Felix Frankfurter:

— isn’t — hasn’t taken it very farfetched.

The Secretary’s letter doesn’t take it very far.

It can take me anywhere of the fact in regard to the construction of that letter.

And that —

J. Lee Rankin:

Well, it — it depends —

Felix Frankfurter:

— except, the United States itself made no claim beyond the three miles.

J. Lee Rankin:

It depends upon whether the Court will also take the further step with me that the boundary of the United States can only be determined by the United States.

And that no State of the Union can determine the boundary of the United States.

If you would take that step with me —

Felix Frankfurter:

And I think that’s involved but that doesn’t — still doesn’t help you to deal with the problem raised by the last state statute.

J. Lee Rankin:

If you take that step and then the further step that no State could possibly have a boundary that extended beyond the boundary of the United States —

Felix Frankfurter:

But that is not involved in the Secretary’s letter.

I don’t think — I don’t — must — I can’t take that law from him.

J. Lee Rankin:

No.

Felix Frankfurter:

(a) he doesn’t send it, (b) I wouldn’t take it.

J. Lee Rankin:

No.

That is the contention the United States makes.

We don’t cite in any case for it.

Felix Frankfurter:

Because I tried —

J. Lee Rankin:

But we think it’s inherent that no State of the Union can have any territory that extends beyond that of the United States whenever it is part of the Union.

It can have less and this Court recognized the State could extend for a lesser distance than the United States —

Felix Frankfurter:

But you tried to —

J. Lee Rankin:

— in U.S.against California.

Felix Frankfurter:

But you’ve answered Justice Black, unless that’s what ended into his question of your answer that if Congress can explicitly give the Tideland Possession Act, although we ourselves claimed no right to drill for oil beyond the three-mile limit, nothing in this Act shall preclude Louisiana from doing this.

It would have a very different policy.

J. Lee Rankin:

Well, I agree that that’s entirely — that’s a different case.

Felix Frankfurter:

Well, —

J. Lee Rankin:

But —

Felix Frankfurter:

— that depends on how you construe the effect.

I’m not —

J. Lee Rankin:

No.

Felix Frankfurter:

I’m not foreclosing it.

I need to hardly say it.

J. Lee Rankin:

If I may, I’d like to suggest that Congress could have said that, regardless of whatever the United States has done in the past about three miles, any State or the States in the Gulf may have an area out to three leagues, but they didn’t say that.

Felix Frankfurter:

I understand that.

J. Lee Rankin:

And Congress, I don’t think, could say the United States had a maritime boundary.

The boundary of the United States, at the time 1812, when Louisiana entered the Union, was more than three miles because nobody could determine or could so state and make it a fact when the position of the Government was, at that time, by the people who had the power to make that position, that it was only three miles.

Felix Frankfurter:

May I put this question to you, sir.

Always being hesitant of putting a hypothetical question that isn’t directly rather than the issue.

Felix Frankfurter:

Suppose Congress had made an extended investigation in the various state claims and has concluded, just making a big supplement, and has concluded that Louisiana is the only State that, in fact, asserted rights in water extending to three leagues.

Suppose that is satisfied, it need not show permission permitting you whatever the finding physically herein, and Congress had specifically written into the Recession Act of 1953 whereas, we made an investigation and found that Louisiana may develop oil up to the three leagues.

Would that be beyond the power of Congress?

J. Lee Rankin:

No, I do not think so.

Felix Frankfurter:

And yet, if it found so, you — Louisiana would be exercising rights that no other State could be exercising and therefore, bringing the question which clause do we actually read.

What does equal footing clause mean, anyhow?

That would be just geographic of taking this.

J. Lee Rankin:

Well, the difference in the question is that Congress did not see fit to make the grant on that kind of a basis.

Now, if it had — if it said the boundary, based upon whatever the historic records might show that Louisiana can produce prior to the time it entered the Union and we granted that, that would be something else.

But they — they were very careful not to make that because they were not willing to pass upon this claim or to give them any three leagues.

The presumption was that they were only entitled to three miles and everybody was given that.

And they tried to make it very clear that if they had, it could show that their boundary, even though that was — they’d already had the evidence it couldn’t be beyond that, was three leagues, they would get it and not otherwise.

And the state boundary was the test that they made, and —

Hugo L. Black:

I suppose it could also contend, I don’t know what it amounts to, but that they can’t not delimit the claim of the three miles.

J. Lee Rankin:

That’s correct.

They — they wanted to leave that question not decided by the Congress and open to the courts, as the managers of the bill said.

And the — the only thing that they did make very clear in order to, and I think it would’ve been impossible from the legislative history to get the agreement that they did on the legislation without it, was that they were not granting anything that would extend to recognition of that.

Hugo L. Black:

It was passing it over to the courts, is that it?

J. Lee Rankin:

Well, I think you can —

Felix Frankfurter:

It’s up to your courts.

J. Lee Rankin:

— you can find some —

William J. Brennan, Jr.:

Well, Mr. Solicitor, —

J. Lee Rankin:

— language that would indicate that.

William J. Brennan, Jr.:

— can you find anywhere, either in the statute itself, preferably in the statute, or not in this legislative history, any recognition by the Congress that if it were the fact that the there was a national three-mile band and that’s all at the time of entry, that Congress recognized that, then, Louisiana could have no claim beyond three miles?

J. Lee Rankin:

I didn’t find any language that would indicate anything in regard to that, no.

William J. Brennan, Jr.:

Well, then, was it — well, is there anything to indicate that Congress was in doubt upon that question?

J. Lee Rankin:

No, there is nothing of that kind.

William J. Brennan, Jr.:

Well, then, that does get us back, basically, to what this last sentence means, doesn’t it?

J. Lee Rankin:

Yes, I think it does.

It’s a question of whether the Government is right in its contention that, the boundary at the time it entered the Union, the language is clear that that’s what it says is controlling.

J. Lee Rankin:

And whether or not any State could have a boundary beyond three miles in view of the fact that the United States, by all of the positions of the political branches which are binding upon this Court, according to our contention, was that it couldn’t be beyond three miles for the United States and the State couldn’t be beyond that.

William J. Brennan, Jr.:

Now, is that — is that “couldn’t be beyond those three miles” in any way imported in its claim, if any it has?

J. Lee Rankin:

That’s on the part that this action might —

William J. Brennan, Jr.:

In Section 4, confirmed without prejudice to its claim, if any it has, that its boundaries extended beyond that line.

J. Lee Rankin:

Yes.

It seemed to me that the “if any it had” is the effort by the Congress not to affect or prejudice in any way by the legislation and not to say they did.

They are very careful to not say that they did have any rights or any basis for such claim.

And it was frankly stated that it would be up to courts to determine.

Louisiana also contends that its boundary extends out, and we’ve furnished some small maps, I’m sorry about the size of them because they’re hard to read, the various leagues of the various places, but the mine shown in pink along the border of Louisiana is the Government’s contention as to whether the three-mile line was granted.

That’s from A to A.

Line from B, shown in the darker color.

From C to C is the additional area making three leagues.

Assuming the baseline to be where the Government contends.

Louisiana claims that the baseline should be taken from the Coast Guard line which is the line from A to D and over here is the dotted line, and then, the three leagues would be out from E — from E to C.

Now —

William J. Brennan, Jr.:

Well, even if only the three miles went out on that Coast Guard — which one is it?

The Coast Guard line, is that the —

J. Lee Rankin:

The dotted line.

William J. Brennan, Jr.:

D-DA?

J. Lee Rankin:

Yes.

William J. Brennan, Jr.:

Well, if — in other words, is there a contention that even if not three leagues, at least three miles is measured from that line rather than from the Government’s baseline?

J. Lee Rankin:

Yes, Mr. Justice.

And it’s the position of the Government at this time that the Court does not need to decide that question at — at this time.

There are — we concede that there are many questions in regard to facts concerning the line — the baseline and the sinuosities of the coast and where the various points would be, how they would be measured, the rules that would be applied.

And the Court followed a similar plan in regard to the case of U.S.against California where they decided the question of whether or not this State or the United States was entitled to the submerged area and then reserve the question of where the coastline was to be handled by a special master and his examination of the facts and details.

And the Government is now asking that the Court pass only upon the question of whether it’s three miles or three leagues, and agrees that Louisiana is entitled to have evidence and probably, a special master to develop a question of, assuming it’s three miles, where shall it be measured from and where is the proper coastline.

But we do want to call attention to the fact that the Coast Guard line, the dotted line, has no real relation to the — what is a proper measure of the coastline under all of the legal holdings.

The line was prepared by the commandant of the Coast Guard and it was not made with reference to what the coastline should be or boundary of any State should be, but was made with regard to navigation and navigational aids.

And it runs along from the point A to D, along the islands here, and then you’ll notice it departs at some points in as much as 10 nautical miles away and then on, one-and-a half to six at other points, and it doesn’t purport to touch any land for practically the entire distance from about 60 miles over here on the east side of the coast at all.

So that, if the Court, in examining this question that we’re asking the Court to pass on at this time, would determine whether or not the measure of the maritime belt is three miles or three leagues, and would also decide whether or not the Coast Guard was a proper baseline of which to try to measure the coast, it would be of great help in — in passing onto the detailed question of the measurement of the coast, which we assume would be done by direction of the Court before a special master in an action similar to what was taken in the case of U.S.against California.

William J. Brennan, Jr.:

Well, Mr. Solicitor, what about this other line, this Louisiana Act 33, 1954, line according to this legend?

J. Lee Rankin:

Well —

William J. Brennan, Jr.:

This one, further seaward.

J. Lee Rankin:

They have one line but they went 27 miles.

That’s clear down G to G.

William J. Brennan, Jr.:

Well, that’s the — yes.

J. Lee Rankin:

Then the E to EC is the three leagues based upon the coastline as the — at the Coast Guard line as the base line under their Act 33.

Hugo L. Black:

Was there any other place that gets Congress to establish that line that was there?

J. Lee Rankin:

Yes, Mr. Justice.

It was suggested that it would help everybody in the exploitation of this area if Congress would draw the line in detail on all the coasts.

Hugo L. Black:

How long do you suppose it should be, within your theory, along that coast in standards that were referenced to?

J. Lee Rankin:

Well, it was done in California and the master did examine the questions there and brought in a report to this Court.

Now, the Court hasn’t acted on it and with — the Government hasn’t asked the Court to act on it yet.

But it’s — it’s not an impossible proceeding.

We tried to anticipate it and then avoid it by suggesting the action of the Congress, and the reaction of Congress was it would be impossible for them to agree.

And I think further, though, in complete frankness, there was a — they didn’t want to resolve the question about the three leagues or the three miles, too, and they said during the debates that that would be a question the courts would have to determine about —

Hugo L. Black:

Did they submit a report to make any effort to explain the language or even proving it?

J. Lee Rankin:

Not except to make it clear that they were not passing on this question of three miles and three leagues.

That — I think that’s clear.

Hugo L. Black:

To make it clear that something was actually left open, that that was to be decided by the Court?

J. Lee Rankin:

Yes.

Hugo L. Black:

On proof?

Did they say on proof?

J. Lee Rankin:

Well, I — I’d have to refresh my memory about whether it was detailed proof or exact language on that.

But it was clear that they did not want to prejudice whatever action would be brought by the States in regard to three leagues.

They didn’t want to approve the three leagues or take any action that would indicate any approval of it.

Charles E. Whittaker:

Mr. Rankin.

J. Lee Rankin:

Mr. Justice?

Charles E. Whittaker:

Mr. Solicitor, as I understand you now, let’s see if I can get the grasp of this case.

In United States against Louisiana, this Court held that the State of Louisiana had no proprietary rights beyond the low mean water mark seaward.

J. Lee Rankin:

That’s correct.

Charles E. Whittaker:

Now, the only grant of any proprietary interest, after it was made by Congress, is found in Section 2 of the Submerged Lands Act, is it not?

J. Lee Rankin:

That’s my recollection.

Charles E. Whittaker:

Now, what is found, if there are other rights, dealt with in Section 4 depending upon — they are dependent upon other principles, aren’t they not?

J. Lee Rankin:

I must correct my prior answer.

The Section 3 is the grant part —

Charles E. Whittaker:

Well, Sections —

J. Lee Rankin:

— and 2 defines —

Charles E. Whittaker:

Section 3 and definition is in 2, correct.

J. Lee Rankin:

Yes.

Charles E. Whittaker:

And what Section 4 deals with has nothing to do with the grant of any proprietary interest.

It simply says, in fact, that we make no question about nor do we prejudice by this grant any other rights under other principles.

J. Lee Rankin:

That’s correct, although Section 4, in the first part, does authorize every State to come out to three miles.

Charles E. Whittaker:

Oh yes.

Oh yes, well, that’s the grant that’s —

J. Lee Rankin:

That’s right.

Charles E. Whittaker:

— given expressly by the Act.

J. Lee Rankin:

Yes.

So, if they hadn’t already gotten out three miles, they have a right to.

Charles E. Whittaker:

They had a right to go out, yes.

J. Lee Rankin:

And that’s an approval —

Charles E. Whittaker:

Yes.

J. Lee Rankin:

— that Congress talked about.

Charles E. Whittaker:

Now, if therefore Louisiana has any rights beyond the three miles, they depend upon principles wholly foreign to this statute or to any rights granted by the statute.

J. Lee Rankin:

Well, yes, except it’s the United States position that they couldn’t have any —

Charles E. Whittaker:

Yes.

Yes —

J. Lee Rankin:

— because this Court has already adjudicated it and therefore, you go back to the decisions of the Court, find that its res judicata.

It isn’t just stare decisis.

It’s an adjudication between these parties about this very question, that they had no rights whatsoever from the low water line out into the submerged lands area.

J. Lee Rankin:

The only place they could possibly get, from the date of that decision on, would be this Act.

Hugo L. Black:

But they could get it from the Act.

They could actually prove the meaning that this might be better if they did not previously had been beyond certain places.

We’d never give them this much or we’d had to give them so much on certain proof and form a decision that this Court wouldn’t even suggest.

J. Lee Rankin:

No, except that it seems —

Hugo L. Black:

You would have to look to the Act.

J. Lee Rankin:

The Act is clear that the Act gave them whatever their boundary was when they entered the Union or as approved on or prior to May 22nd, 1953.

Hugo L. Black:

It exists at the time the State became a member of the Union.

J. Lee Rankin:

That’s right.

Hugo L. Black:

And then, over another one, they explained that they wanted that to be construed as inadvertently that it would be considered in the light of what was “prior to” or “at that time.”

Isn’t that what Section 4 mean?

J. Lee Rankin:

Provided by its Constitution or laws, it doesn’t say that their —

Hugo L. Black:

Why?

J. Lee Rankin:

It doesn’t say if there are history or anything like that.

Hugo L. Black:

(Voice Overlap)

or it’s denied.

J. Lee Rankin:

Yes, sir.

Hugo L. Black:

By —

J. Lee Rankin:

And it says nothing —

Hugo L. Black:

Suppose the law has provided the trial but I think that’s in a section or the Constitution provides the trial.

The law should not — just as the date he came in, that they did have (Inaudible) nine miles out or three leagues out.

What about this?

You would say that all that disappeared when they became a part of the Union when they were admitted the day they would — the moment they went in?

J. Lee Rankin:

Yes.

Hugo L. Black:

Even if the moment (Inaudible) their Constitution had provided or the law had provided that they extend out nine or three leagues?

J. Lee Rankin:

Yes, because the effect of their entering the Union and the benefits they got from that also had the effect of giving them the boundary of the United States.

Hugo L. Black:

Well, suppose that were true and they actually did that.

Congress came along and said that, in spite of the facts, they lost everything up to — beyond the three miles when they came in.

We got to let them have nine miles now if they could prove the trial to decide they came into the Union or the trial has been and they were admitted, their constitutional laws provided nothing on this.

Would that be it?

J. Lee Rankin:

Well, the Act said that —

Hugo L. Black:

That’s where we get to admit.

J. Lee Rankin:

That’s where we get —

Hugo L. Black:

And to find a way we get back when it was done.

J. Lee Rankin:

But we think that the Act is explicit about the grant and that that the granting part in light of the history of trying to not pass this question, one way or the other, to prove the three — three-league boundary is explicitly in making the terms of the grant the moment they entered the Union or if there could be found any language where Congress, prior to the date of the Act, had approved — expressly approved, and there is no such contention in this case.

Harold Burton:

Now, for the factor, if any they have?

J. Lee Rankin:

Yes.

Harold Burton:

And it says without prejudice to — to any claim that they may have but it doesn’t permit itself for there being any at all.

J. Lee Rankin:

That’s correct.

Felix Frankfurter:

But if — if that’s so — if it’s just that, there is a question of demonstrating or disproving that they had it, if on just for them.

And if that’s the case, “if any,” normally, “if any” means something that could be established in the Court of law.

And if it is established, legal consequences follow.

But it comes with your case that even though they could establish it, no legal consequences follow because of the paramount restriction of any rights of Louisiana to be internationally asserted in Court now.

J. Lee Rankin:

Yes, but it was the history of these Acts that or the tidelands litigation that the States and the United States were contending that certain Acts had certain effect.

And it was continued to be contended in the connection with this legislation.

Felix Frankfurter:

I — I follow you.

I just —

J. Lee Rankin:

That these various —

Felix Frankfurter:

That’s the fact you gave to us in your answer to Mr. Justice Black, namely, whether what you call very clear is very clear.

If Congress had said what you have said, there wouldn’t be a problem except, if Congress had said, I don’t see why a Court within its jurisdiction doesn’t allow Louisiana to make a geographic demonstration.

That’s entirely a judicial purpose about it, interesting as though it might be.

On the other hand in certain other things, whatever plan they had, they may assert in a court of law their viewpoints, some of the courts in some of the places, that that is a part of it here.

J. Lee Rankin:

That’s correct.

Hugo L. Black:

May I ask you, I’m not sure, if your contention is correct, this language is found to say it could mean anything.

Was it ever used here?

Because if it was already approved on conclusion that it only has three miles when it came in, that’s all that it gets, all this language from the natural thing, wasn’t it?

J. Lee Rankin:

No, I think that it could because these States were still contending that these various claims that they had had some legal validity regardless of the decision of this Court and — and the decisions of this Court.

And that was an issue that the Congress didn’t see fit to try to determine as to whether or not these various contentions as to the three leagues, historic events that were contended for, had any effect.

But this Court would be, it seems to us, bound by the action of the political branches in that regard and even though the States would not recognize it — not be willing to recognize it, would have to conclude that those were the determining factors in this entire matter.

And so, Congress did not try to resolve that question and left into the courts.

Assuming that we should hold that the boundaries of Louisiana were nine miles, three leagues, at the time it came in, what would be the consequence under this Act?

J. Lee Rankin:

If the — you would hold that there were three leagues, then you would — we would still have the problem of where they would — the measurement would be made.

But there would a grant so-called or a legal consequence of the grant flowing from this Act, wouldn’t there, without doing that?

J. Lee Rankin:

Yes.

If this Court would hold that Congress intended to grant three leagues, then that would be binding upon the parties and the measurement would still have to be made as to whether — where it would be from and the fact that it does not extend out to 27 miles as claimed by Louisiana.

Charles E. Whittaker:

Now, would that, in turn, Mr. Solicitor, have the effect of extending the international boundary of the country, extending our sea with boundary of the country?

J. Lee Rankin:

Well —

Charles E. Whittaker:

And is that within the power?

First, is it not true, it seems obvious to me, that a State cannot be partly within and partly without the Union?

J. Lee Rankin:

Well, that’s what the United States claims.

And we say that this Court has no power to determine that the boundary of the United States is three leagues when the political branches say its three miles.

Felix Frankfurter:

But it could get oil exploiting authority to the State of Louisiana beyond three miles, if it could.

J. Lee Rankin:

Yes, —

Felix Frankfurter:

Now, —

J. Lee Rankin:

— except that you were bound by the language they used which says —

Felix Frankfurter:

What I’m —

J. Lee Rankin:

— which uses state boundaries.

Now, if they —

Felix Frankfurter:

I’m not saying that — I’m not saying you’re not right.

I’m not saying that you’re not right that they have shut it off.

All I’m saying is if, as much as I am speaking to say, if I may say so, correctly, Congress could, we get back to the question of what is in that suit.

J. Lee Rankin:

Well, it was suggested to them that this legislation might be drafted so it provided for exploration of these minerals and other subsurface rights, and that was rejected.

Now, if they had done that and not connected it up with state boundaries at all, there certainly would be no problem that we have here today because they wouldn’t be limited by the state boundaries or the federal boundary limiting the state boundary.

And they could have exploration wherever they wanted.

But for this Court to say that the state boundary of the State of Louisiana is three leagues when the Executive Department is saying, in all of its dealings with other nations in the world, that its three miles.

Felix Frankfurter:

Not that Louisiana said three miles — three miles, but that the United States says.

And I suggest, again, there is that old difficulty of the theory being many.

And when you say that Congress could authorize Louisiana, if it passed the specific statute, after our decision, we said that we now reconsider this thing and you have — you may explore or exploit oil out to three leagues if you say Congress could do that.

I believe you’re right to saying that, if I may say so.

Then, the question gets back to what the statute means and it wouldn’t be the first time that Congress passed up to this Court a cloud in the statute.

Felix Frankfurter:

I’m not saying it is cloudy, but it puts — Congress is not incapable, with every respect for it, of using a lot on the words which would satisfy contradictory elements.

J. Lee Rankin:

Yes, but with all due respect to this Court, I don’t believe this Court can say that any State of the Union can extend beyond the boundaries of the United States.

Felix Frankfurter:

They don’t have to say that.

J. Lee Rankin:

And that, it seems to me, is a problem.

Felix Frankfurter:

Here is this ocean in which — when we talk in terms of proprietorship entitled about the ocean beyond the three-mile limit, I think we get into trouble.

We get all sorts of different rights, and they’re not foreclosed by all private types.

What case was it where we allowed expunge fish way out, I don’t know how many miles.

J. Lee Rankin:

That’s —

Felix Frankfurter:

I’m ready to take that to serve as a case.

I’ll be giving that as an illustration.

J. Lee Rankin:

It’s the Scariotis case, I think.

Felix Frankfurter:

Scariotis, not without this difficulty.

J. Lee Rankin:

We think that that we’re entitled to judgment for the limited position that we’re asking at this time in the Court, and were entitled to accounting under the prior decree of the Court for all of the income obtained from the area beyond the three miles.

Felix Frankfurter:

Are you going to deal with the geography on your — when you reply or —

J. Lee Rankin:

I’d like to reserve the — the rest of my time and —

Felix Frankfurter:

Will you be able to do that?

J. Lee Rankin:

— I’ll try to do that.

Yes, sir.

Jack P.F. Gremillion:

Mr. Justice Black and Your Honors.

As Attorney General of the State of Louisiana, I would like to briefly explain to the Court the position of the State in this case.

Incidentally, this is an auspicious day for Louisiana because were admitted to the Union of 145 — 145 years ago today.

So, we are here in a form of a happy birthday, and we hope it will be happy.

Our position is plain and it’s covered in several simple statements, which I would like to make to the Court.

Our argument will be conducted on the motion about — the argument of Louisiana on the motion against the Federal Government would be conducted by Mr. Scott Wilkinson of Shreveport and Mr. Victor Sachse of Baton Rouge will conclude the State’s argument under the arrangement that we have made.

But I want to state our position very simply at the outset and that is this.

That, number one, the seaward boundaries of our State are coextensive with the seaward boundaries of the nation.

There is not any federally-owned belt of submerged land seaward of the state-owned submerged land.

And while the Congress alone can declare the extent of American territory, and has done so, the ownership of that territory, as distinguished from the imperium respecting it, necessarily is vested in the States pursuant to our constitutional system.

And number two, alternatively, and only if the Court should hold that Congress can legally appropriate for the Federal Government a belt of land seaward of the submerged land belonging to and occupied by the States.

Louisiana claims that its historic boundaries within the meaning of Congressional Acts extend seaward three leagues and not just three miles from its coast.

Jack P.F. Gremillion:

Third, if a state limit is set short of the limit of national territory, the measurement determining the state limit necessarily commences from the coastline and not the shoreline.

And the coastline has been declared by Congress to be where inland waters meet the open sea.

Fourth, in this particular case, Louisiana has filed a motion to take depositions of various facts or, in the alternative, to have the case transferred to the District Court for such place.

Now, the primary problem is the baseline from which Louisiana’s boundary is to be measured and that is, whether from Louisiana’s coast as the Enabling Act admitting Louisiana provides for are from the shore or whether that measurement is to be three leagues as we plead the Enabling Act also provides or three miles.

We believe that the Court might very well conclude that the Enabling Act makes it clear that the baseline is the coast and not the shore, that the measurement is three leagues, not three miles if, indeed, the Court has not rendered all of these unnecessary by deciding that Louisiana is entitled to the entire Continental Shelf.

But if the Court entertains any doubt as to whether the Congress in 1812 chose the word “coast” instead of “shore” intentionally or whether the Congress in 1812 said “three leagues” intentionally, then in keeping with the mandate of the Congress in the Submerged Lands Act, Louisiana is entitled to produce evidence to show that the implication and the necessary implication and the real meaning of the Enabling Act was and is that Louisiana is to have within its territory all submerged lands within three leagues of its coast as it existed in 1812, 145 years ago.

Now, there is one other matter that I’d like to call the Court’s attention to —

Hugo L. Black:

In 1812?

Jack P.F. Gremillion:

We were admitted in 1812.

See, we were admitted in 1812, Mr. Justice.

Hugo L. Black:

At the time of admission.

Jack P.F. Gremillion:

That’s right.

Hugo L. Black:

You mean, before it was admitted or at the time it was admitted?

Jack P.F. Gremillion:

Prior to and at the time of admission.

Hugo L. Black:

You mean, before?

Jack P.F. Gremillion:

Yes, correct.

Now, there’s another matter, Mr. Justice, that I’d like to call the Court’s attention to in this case.

Hugo L. Black:

What did you say you wanted, an opportunity to reverse the facts?

Jack P.F. Gremillion:

We wanted to prove that the necessary implication and the real meaning of the Enabling Act was and is that Louisiana was to have, within its territory, all submerged lands within three leagues of its coast as it existed in 1812.

Felix Frankfurter:

May I trouble you to tell me what — to what you mean “by the coast.”

Jack P.F. Gremillion:

“By the coast,” we mean the line which marks the inland waters from the open sea.

Hugo L. Black:

Could you give us (Inaudible)

Jack P.F. Gremillion:

Yes.

Now, Louisiana, pursuant to the — let me say this.Pursuant to the Submerged Lands Act, which uses the word “coast,” redefined, reasserted, and reconfirmed by the passage of Act 33 of 1954 its coastline in accordance with what we claimed congressional authority.

We claimed that our coastline, this backline right here, because our Enabling Act said “including all islands within three leagues of the coast,” and we say “within” means encompassed.

And this Court held in Louisiana versus Mississippi that our eastern boundary over here by the Chandeleur Island was a water boundary that did extend out to this particular distance.

So, we contend that this is our coastline.

Felix Frankfurter:

And from there, the three league was measured.

Jack P.F. Gremillion:

Correct.

William J. Brennan, Jr.:

Now, incidentally, I noticed apparently, that that line seems exactly to parallel the Coast Guard navigational line.

Jack P.F. Gremillion:

It is taken — the Act of Louisiana, Mr. Justice, was defined by the legislature of Louisiana using the Enabling Act.

If we were admitted to the Union, the Act — the State was admitted to the Union and the Coast Guard line, which Congress authorized to come to the Coast Guard to establish I think in 1807, again in 1850-something, again in 1895, and it was done and it is used.

Earl Warren:

We’ll have to recess now.