United States v. Louisiana

PETITIONER:United States
RESPONDENT:Louisiana
LOCATION:Connecticut Welfare Department

DOCKET NO.: 9 ORIG
DECIDED BY: Warren Court (1967-1969)
LOWER COURT:

CITATION: 389 US 155 (1967)
ARGUED: Oct 09, 1967
DECIDED: Dec 04, 1967

Facts of the case

Question

Audio Transcription for Oral Argument – October 09, 1967 in United States v. Louisiana

Earl Warren:

Number 9, Original, United States of America, Plaintiff, versus the State of Louisiana et al.

Mr. Claiborne.

Louis F. Claiborne:

Mr. Chief Justice, may it please the Court.

Although this case appears on the docket as United States versus Louisiana, it in fact has nothing whatever to do with Louisiana.

The dispute here is as between the United States and the State of Texas.

The legal principle involve cannot conceivably affect any other state but Texas with the single exception of Florida.

It could not and does not as we view it at least affect Louisiana or any other state.

Nevertheless, perhaps in thought because of the title, perhaps also in part because of the response filed by the State of Texas, Louisiana has expressed its concern that the Court might think otherwise than we do as to the breadth of the ruling in this case, and have asked for an opportunity to briefly state their views.

In a spirit of accommodation, I have agreed to cede few moments of my time to Louisiana so that it may present that view.

As I understand it, their view simply is that the case has nothing to do with them.

After I conclude, I will therefore cede to Mr. Sachse, Special Assistant Attorney General of Louisiana who will say a few words in behalf of their state.

Do you agree with Louisiana?

Louis F. Claiborne:

So far as we understand their position.

We are in agreement that the case is not bear on the question of how to delineate their (Inaudible).

The issue in this case is on this motion — in this case is whether in delineating the nine-mine — nine-mile belt which was granted to Texas by the Submerged Lands Act as construed by this Court several terms ago whether in measuring that belt, one begins measuring out from artificial harbor-works which project into the gulf or rather whether as we contend, you begin measuring out that belt from the natural shoreline.

Now the question is here because as it happens, they’re all rather long jetties that Galveston and Sabine Pass projecting into the gulf some two or three miles and some distance into the gulf from those jetties all valuable oil lands.

William J. Brennan, Jr.:

Well, what’s the measure Mr. Claiborne of the difference between the 1845 where the 1845 line would be and from which Texas contends the measurement should be?

Louis F. Claiborne:

Assuming Mr. Justice Brennan that the 1845 shoreline is very much like the present shoreline, the difference between measuring out from the shoreline and measuring out from the jetties, the ends of the jetties as would be the rule under the California case is some two to three miles an arc of that diameter, I’ve got the right geometry, that much more into the gulf in the shape of an arc.

William J. Brennan, Jr.:

So we know where the natural — is the — what’s the distance from the point where the natural shoreline was in 1845 and where the natural shoreline would be today, do you know?

Louis F. Claiborne:

That is not entirely clear because that part of the coast was not fully mapped in 1845.

However, we do have maps dating from some years thereafter.

I would hope as I will say in conclusion that should the Court sustain our first position which is that he must go — he must measure out from that 1845 shoreline as it then existed.

But nevertheless, it may well turn out that as a matter of administrative compromise because there had been both accretion and erosion, the United States and the State of Texas might amicably agree to stipulate that the present shoreline is the shoreline as of 1845.

Hugo L. Black:

(Inaudible)

Louis F. Claiborne:

It could be determined with some approximation based on these later maps but still there would be some problems if the parties could not stipulate.

I would have every hope that the parties could even stipulate what the 1845 shoreline was or stipulate the present shoreline is as a practical matter sufficiently close to that old shoreline.

There has been relatively little accretion or erosion on the Texas coast.

Now, I do not mean to imply by saying this that we have explored with Texas what agreement they would or would not be willing to enter into should the decision go as we would urge.

I should add even now that we do have an alternative argument which is that if the shoreline isn’t fixed on the ground as it was in 1849 — 1845, the boundary might be viewed as an ambulatory one which would now include the present shoreline but not artificial harbor-works to take in into the gulf.

In that instance of course, there’s no problem about fixing the boundaries.

Louis F. Claiborne:

No problem about simply discounting the projections of the jetties.

Of course, what you’re really saying (Inaudible), water boundaries, these water boundaries, (Inaudible) the water boundaries was in 1845 and (Inaudible) the shoreline would not be (Inaudible).

Louis F. Claiborne:

Oh, of course Mr. Justice Harlan.

We simply — when we speak of the nine-mile or three-league boundary, we’re simply referring back to where you begin to measure it out from and that’s the only relevance of the shoreline.

We’re not of course contesting that Texas is entitled to a nine-mile belt, that’s the measurements.

Now, as I say, the question here arises because there are valuable oil lands at the end of the jetties projecting out in Galveston and Sabine Pass.

And because in the California case at the 64 term, this Court determined to adopt the rule of the international convention on the territorial sea in the contiguous zone to the effect that a coastline does include artificial harbor-works, permanent artificial harbor-works and that the territorial sea is measured from the ends of those works.

So that if the California decision were applicable to Texas, it would follow that its nine-mile belt should begin from the ends — begin to be measured from the ends of those jetties.

Now, because this leads Texas to say, why shouldn’t we be treated like everyone else?

Why doesn’t the California decision applied to us.

It applies to Louisiana as they demonstrate at some length in their brief.

The Government has always conceded that it apply to Louisiana or in California and while the Government had conceded in that, this Court so held in the California case.

Now the answer why Texas is to be treated differently in this sense in our view is that Texas, unlike every other state except Florida has a belt which is determined by history not by the arbitrary three-mile belt that was granted under the Submerged Lands Act.

The Submerged Lands Act as the Court will remember gave every coastal state a three-mile belt of submerged lands, measured out from its present coastline.

And under this Court’s decision in the California case as I’ve said, present coastline would include permanent harbor-works.

Potter Stewart:

But these are not entirely different matters than that of (Inaudible) as I understand.

These jetties are projecting (Inaudible) perpendicularly from the —

Louis F. Claiborne:

Exactly.

Potter Stewart:

They’re not breakwaters?

Louis F. Claiborne:

No, they’re not curved breakwaters they’re rather straight perpendiculars, two of them from Galveston Harbor, two of them at the entrance to Sabine Pass.

I think the rule would be under the California case to draw a straight line across the ends of the two jetties and view everything within it as inland water and therefore view that as the beginning point, the baseline, the coastline from which to measure the three-mile belt if we were talking about a three-mile belt as we —

Potter Stewart:

I’m looking at Exhibit B and Exhibit C in the reply brief of Texas, and I am taking some notes here.

Is that a fairly accurate to (Inaudible)?

Louis F. Claiborne:

Exhibit B of course Mr. Justice Stewart is off the Louisiana coast.

It’s just an illustration of the fact that we have conceded that in Louisiana you use this way of drawing the coastline.

Exhibit C does apply to the jetties that — Galveston which is one of the principle ones involved in this case.

I may say that while this case arises because of the jetty and the oil off the jetties that Galveston and Sabine, the decree we asked for would apply to any harbor-work projection into the gulf off the coast of Texas.

Potter Stewart:

Well, is it —

Louis F. Claiborne:

If —

Potter Stewart:

Is it the position of Texas that — let’s say a jetty comes down here and a jetty comes down here that the — I can’t express this very well geometrical but that the — that that extends the baseline between the jetties as well as just out from the jetties?

Potter Stewart:

Do you understand the question?

Louis F. Claiborne:

As I understand it, that is correct.

Now, perhaps I do have some large maps which illustrate in detail how this would work outside of Galveston and outside of Sabine or perhaps if I left them with the clerk they would help Your Honor —

Potter Stewart:

(Inaudible)

Louis F. Claiborne:

In a —

This is not an inland water problem as such as in the United — the California case.

Maybe the effects on what Texas says (Inaudible)

Louis F. Claiborne:

I think Your Honor is correct.

I don’t think it’s — I really misstated when I said that the effect of the jetties was to create an inland body of water which would — from which it would be measured out.

It’s rather viewed as a part of the land as it were and the closing line if it doesn’t exceed 24 miles I suppose would be a straight line across what is viewed the two headlands.

William J. Brennan, Jr.:

Mr. Claiborne, I gather there’s no — you make no point of the fact that we’re dealing here with the gulf rather than the coastline.

I mean we’re dealing here with the coastline on the Gulf of Mexico, aren’t you?

Louis F. Claiborne:

Well, it so happens Mr. Justice Brennan, this problem could not arise anywhere else.

It arises only when you get more than three miles and you —

William J. Brennan, Jr.:

Well, what I’m trying to get at is you’re not — of course, you — that you’re not distinguishing the California case and that granted (Inaudible).

Louis F. Claiborne:

Not because this is a gulf rather than the open ocean, no sir.

But as I say, it happens for other reasons that this problem can only arise in the gulf because only in the gulf could a state take more than the arbitrary three-mile grant measured from present coastlines which is given to every coastal state —

William J. Brennan, Jr.:

This is because the Submerged Lands Act made that depend on history.

Louis F. Claiborne:

The Submerged Lands Act first granted each of the states three — a three-mile belt measured out from their present coastline.

That’s through the states on the Atlantic, on the Pacific and in the Gulf.

The Submerged Lands Act — that claim is available to Texas like to every other state and it doesn’t — Texas is still free to make a claim under that provision of the Act.

And perhaps it would be helpful if I refer to the Act itself which is — relevant portions of which are reprinted on pages 25 through 27 of our brief.

Now this first grant, the three-mile grant is perhaps — well, it’s specified twice.

On page 26, Section 3 is the actual granting provision that if you read it, it will tell you nothing about how much is granted.

It simply says, what is granted is the lands between navigable waters to the boundary of the state.

So we have to turn back to Section 2 to find out what those terms mean.

In Section — we’re now on page 25.

Section 2(a)(2) provides that lands under navigable waters means first, lands and I skip to the third line, seaward to align three geographical miles distant from the coastline of each such state.

That’s the first grant that applies to each state.

Now, the same idea will be found in Section 4 on pages 26 and 27.

Louis F. Claiborne:

It said there that each of the original states has a three-mile boundary from its present coastline and that any subsequently admitted state may extend its boundary two to three miles from its present coastline and it may do so at anytime.

So the practical effect of this is that each state got a three-mile belt measured out from its present coastline.

And as I say, that’s available to Texas but that is not what Texas chose to claim.

Texas claims rather under the second part of Section 2(a)(2) on page 25.

After the part I just read, it says that submerged — lands between — beneath navigable waters also means lands — seaward three miles from the coast and to such boundary line of each such states where in any case, such boundary as it existed at the time such state became a member of the Union or is here to — before approved by Congress extends seaward beyond three geographical miles.

So Texas is making this claim for something over the normal three miles.

In Section 4 incidentally, we find out or rather in Section (a) — Section 2(a)(b), we found out that this claim for anything over three miles applies only to the Gulf States and not to the other states.

Texas in other words claims to its historic boundary.

There are two types of historic boundaries.

One is the boundary of the state when it came to the Union, the other is a boundary subsequently approved by Congress.

Florida was in the second case, Texas is in the first.

It claims the boundary that it had at the time it entered the Union.

Now the Act says nothing about how you measure that boundary, how you determine that boundary as it existed when you came into the union.

It doesn’t say that you measure it out from the coastline, it doesn’t say of course how wide it is and there’s a good reason for this that historic boundary may not have been related to the coast at all.

It may not have been X miles from the coast.

It might have been a fixed line.

Louisiana at one time claimed a line of boundary on the 27th parallel that was not parallel to the coast or not exactly parallel to the coast.

It might have been a line made up of straight lines between reefs that were not even distance from the coast at all points.

Or finally, it might have been a boundary that is defined in terms of so many miles from the high water mark rather than the low water mark which is what coastline means in the Submerged Lands Act.

Because of all these possibilities, quite naturally, the Act did not say where a historic boundary is measured out from.

What the Act in effect says that whenever you have a historic boundary, whenever you can establish a historic boundary that is somewhere between three and nine miles from the present coast, you’re entitled to all the land — all the submerged land enclosed within it.

I say not exceeding nine miles because the Act puts an outer limit, a maximum of nine miles from the present coast as the most that any states even a gulf state could get.

The effect of this —

Byron R. White:

Do you — you concede the — that the nine, that nine-mile limit is measured from the present coastline?

Louis F. Claiborne:

The maximum nine-mile limit —

Byron R. White:

Including artificial structure?

Louis F. Claiborne:

Including artificial structures.

Byron R. White:

That part of it is like the California case.

Louis F. Claiborne:

That part of it is like the California case.

Exactly Your Honor.

Louis F. Claiborne:

But that’s the maximum and the minimum as it were that three miles is measured also from the same modern coastline which includes artificial harbor-works but the historic boundary is wherever it was and it may not be as I say even an equal distance from the shore at any given point.

Byron R. White:

So that the — at this particular jetties that we’re arguing about, you would say that the limit, the nine-mile limit is made from the outer end of the jetties but the historic boundary is somewhere inside of that.

Louis F. Claiborne:

Exactly.

Now, the net result of these grants by the Submerged Lands Act is that any state which had a historic boundary that was more than nine miles from its present coast would get nine miles from its present coast including harbor-works.

Any state that had a historic boundary of less than three miles from its present coast could now claim three miles from its present coast.

Any state and we say Texas is in this last category, it had a historic boundary somewhere in between three and nine miles from its present coast, gets that much and no more.

Now, because all the Gulf States made claims to boundaries beyond the three-mile grant that everyone else received, trying to set up historic boundaries but only two of them prevailed.

They were Texas and Florida.

It so happens and I think this is the source of the confusion that Texas’ historic boundary is a nine-mile three-league boundary measured more or less from the shore.

The question is whether that nine-mile belt which is a matter of history was the Texas boundary is coextensive with the nine-mile maximum which would be measured from the present coastline.

We say it is not.

But in any event, the question whether those two boundaries are coextensive cannot be resolved by looking to the Submerged Lands Act.

That question has to be resolved by looking to the historical documents which determine where the old boundary was.

The Submerged Lands Act is not going to tell us that.

All the Submerged Lands Act says is that Texas or any state in this comparable position may take to its old boundary as it existed at the time it came into the Union.

Now in the case of Texas, the historic document that is relevant to fixing the historic boundary is as this Court found in the case entitled United States versus Louisiana or in Texas etcetera is the Texas Boundary Act, the Boundary Act of 1836 which was passed by the Republic of Texas and which was deemed to have been accepted by the United States when Texas was admitted to the Union in 1845.

And it is to that document that we must look to determine where the Texas boundary was and whether it was nine miles from the present coastline which on its face seems unlikely if there’s been any change in the coastline or rather whether it was nine miles from some other baseline.

Now at this point, Texas really abandons the debate.

None of their brief is addressed to the question what nine miles from land means in the Boundary Act of 1836.

Texas’ entire position here is that the Submerged Lands Act tells us where the Texas’ historic boundary was.

If we are right that the Submerged Lands Act does not resolve this question, I take it and I maybe corrected that Texas has no further argument to present.

And that’s not surprising because if one accepts our position that the 1836 Act fixes the old historic boundary of Texas, it’s perfectly plain that that boundary had no relation to the present coastline but have relation rather to the coastline as it existed at that time or a few years later in 1845 when the state was admitted to the Union.

Now as I’ve said, the Texas Boundary Act sets a boundary for Texas in the gulf three leagues from land.

Three leagues being the first nine miles.

Now we assume that land in that context means below water mark along the shoreline rather than the high water mark or some intermediate point.

In that respect, we accept the notion that the waterline involved is the same kind of waterline that is spoken of in the Submerged Lands Act.

But there are at least three reasons why harbor-works cannot have been included in this nine-mile belt that Texas had as a matter of history.

The first and really dispositive reason is that these harbor-works did not exist in 1845.

Indeed, there were no harbor-works thus stipulated.

There were no harbor-works projecting from the Texas coast in 1845 when that state was admitted in the Union.

Louis F. Claiborne:

Furthermore, the international practice of fixing international boundaries in the sense of territorial sea from artificial harbor-works is a practice that developed very much later and was not current in 1845 and because it’s wholly unlikely that Texas having no harbor-works of its own would have devised a new and radical way of defining its own boundary contrary to the then international practice.

Finally and I’ve even stressed this, land, the word used by the Texas Boundary Act, tends to connote not artificial structures added but rather the natural shoreline.

So the Texas Boundary Act doesn’t say anything about the exact boundary of natural accretion which you concede would have (Inaudible)?

Louis F. Claiborne:

Mr. Justice Harlan, our first position is that it does not.

It would extend the boundary but that was because water boundaries as then as now all viewed as ambulatory to the extent that natural and perceptible accretion or erosion occurs.

That simply a principle of water boundary law as I understand it which was fully recognized at that debate.

And to the extent that the Submerged Lands Act is viewed as confirming the Texas historic boundary as it would exist today, we would have to concede that any accretions or erosions by natural forces should be taken into account.

It doesn’t seem to us however that that’s really what the Submerged Lands Act has in mind.

It seems to us rather that when the Act speaks of the boundary as it existed at the time of admission, it means as it was then located and as I’ve pointed out that it could present problems of retracing the boundary but I think those problems could be worked out.

(Inaudible)

Louis F. Claiborne:

I would Mr. Justice Harlan.

I —

You are not stating (Inaudible).

Louis F. Claiborne:

No, I — but I — Mr. Justice Harlan, I think it’s indisputable that the boundary of Texas as fixed by the 1836 Act did shift and had it ever been recognized by the United States or by the Courts would have shifted in all this time and certainly shifted between 1836 and 1845.

The only reason for not taking shifts after 1845 into account is that the Submerged Lands Act seems to throw us back to that date and to say we will reconstruct things as they were then.

That’s your first premise?

Louis F. Claiborne:

That’s our first premise but we do —

(Inaudible)

Louis F. Claiborne:

That is —

— or may not have been the effect?

Louis F. Claiborne:

It — we concede that it would be a quite reasonable reading rather to think of it as endorsing the principle — endorsing not the principle, the boundary with all its subsequent shifts in either direction which is it — turns out in the case of Texas may very well cancel each other out.

Byron R. White:

Suppose the — is it in Section 4 that the Submerged Lands Act mentions the boundaries as of the time the state became a member of the Union?

Is that the only place that (Inaudible)?

Louis F. Claiborne:

In Section 2(a)(2) Mr. Justice White on page 25 of our brief about the middle of that —

Byron R. White:

(Inaudible)

Louis F. Claiborne:

— and to the boundary of each such state that identical language is reproduced in Section 4.

And in both instances with respect to boundary at the time of admission, the words are as it existed.

Abe Fortas:

Mr. Claiborne, I understand that your position is that the principle announced by this Court in United States against California should not be applied here, is that correct?

Louis F. Claiborne:

Well, that is our ultimate conclusion but I want to hasten to add Mr. Justice Fortas that it applies to Texas.

Insofar as Texas claims three miles which it could do in — where there was a tremendous accretion, it’s conceivable that the three-mile grant from the present coastline would be more beneficial than the nine-mile grant from an old shoreline.

Abe Fortas:

Yes, I think I understand that but will you tell me again why you think — why is it that you think that the principle in United States against California should not apply to the three-league as against the three-mile comparison?

Louis F. Claiborne:

Mr. Justice Fortas because all the Court did in United States versus California was construe a present grant from present coastlines.

And in order to determine how a present coastline was to be located, the Court found it useful to refer, to adopt the rules of the international convention then recently ratified by the United States which are at least harbor-works is part of the coastline.

There were two considerations present in the California case which are not present here.

The first was the Court was concerned that the international boundary and the state boundary so far as possible be one and the same.

Since the United States for international purposes that adopted the rule of the convention which included harbor-works are — it was proper to do the same with respect to the state boundary.

But that consideration does not apply here of course because here we’re dealing with a boundary that’s nine miles out which in no event can be coextensive with the international boundary which is only three miles out.

So that consideration of co-extensiveness simply doesn’t weigh here.

But more important perhaps in the California case, the Court was construing a new grant of three miles from present coastlines and was taking the modern view as to what a coastline was.

Here on the contrary, the Court is asked to construe a grant to — on historic boundary which has no necessary relation to any coastline much to as to a modern coastline.

Abe Fortas:

Well, that’s your argument and it must be based squarely upon some language in the statute, isn’t that right?

Louis F. Claiborne:

It is.

Abe Fortas:

Now, and would you please show me what that language is?

Louis F. Claiborne:

Well first Mr. Justice Fortas turning to page 25, Section 2(a)(2).

We get all lands and now I skip permanently title lands that are not involved here.

All lands seaward — skipping to the third line.

All lands seaward to a line three geographical miles distant from the coastline of each such state.

Abe Fortas:

And you say that’s — means the present coastline the United States against California defines it?

Louis F. Claiborne:

And —

Abe Fortas:

(Inaudible)

Louis F. Claiborne:

The Court so held and we —

Abe Fortas:

(Inaudible)

Louis F. Claiborne:

Now, and further, and to the boundary line of each such state where in any case such boundary as it existed at the time such state became a member of the Union or is here before approved by the Congress.

Abe Fortas:

But what you’re doing as I understand it is to say that the first views in that phrase into the boundary line of each such state has to be read as if it said in the boundary line of each such state as it existed at the time that the state became a member of the Union.

Where in any case —

Louis F. Claiborne:

I frankly don’t see any other way to read it Mr.–

Abe Fortas:

Sir?

Louis F. Claiborne:

I frankly don’t see any other way to read it Mr. Justice Fortas.

Abe Fortas:

So, well that’s your argument.

I just want to be clear that you are reading it to mean “and to the boundary line of each such state as it existed” and not merely because I assume that the argument of Texas is at the phrase where in any such case, such boundary as it existed does not qualify the meaning of boundary line in the preceding phrases where it complicated the —

Louis F. Claiborne:

Well, I appreciate it.

That may be their argument.

Abe Fortas:

That’s the argument as I — that’s the issue as I understand it.

Would you agree or disagree with that?

Louis F. Claiborne:

I’d — I agree with that.

I would draw Your Honors attention also to Section 4, pages 26 and 27, leaving aside the first sentence which is again referring to the three-mile arbitrary grant, three geographical miles distant from its coastline, meaning its present coastline as construed by this Court in the California case.

Now it –no reference to coastline any longer when we are talking about the further grant in the last sentence on page 27 which reserves the question of historic boundaries.

We have nothing in this Section as to be construed as prejudicing and so forth.

The existence of any state seaward boundary beyond three geographical miles if it was so provided by its constitutional laws prior to at the time of such state became a member of the Union.

Again, we’re thrown back, you get three miles, you get so much more as you had at the time of admission.

And how one could determine what you had at the time of admission by reference to harbor-works which were constructed 50 years later is difficult to grasp.

Now let me say finally that our submission doesn’t seem to us in anyway unfair to Texas.

I’ve already mentioned in passing that Texas may at any time he chooses take full advantage of the three-mile grant which every state received.

There are some suggestion in the brief that a nine-mile limit computed the way we compute it might end up by denying the state any present marginal sea whatever.

That is not true because when you come to that point when there’s that much accretion then you may switch to the three-mile grant.

And you can combine the two and you can change your mind at any time.

Texas has no need to opt nor does it have to — have the same — head of the grant for each portion of its coast.

In some, the rule we urge applies to Texas and it applies to every other state in the same situation so happens that there was only one other state, Florida which prevailed it having a boundary beyond three miles.

That’s the only reason this seems like a rule specially fashioned for Texas in fact it is not.

And in reverse, the rule of the California case applies to every state including Texas with respect to the three-mile grant.

Was Florida representing the (Inaudible)

Louis F. Claiborne:

Florida was of course served by us as a party to this litigation and I had rather anticipated that Florida might be here speaking since it has a possible interest —

The brief except in Louisiana —

Louis F. Claiborne:

I frankly don’t know Mr. Justice Harlan whether there are any jetties so — which would be involved in Florida.

Perhaps not and perhaps that’s why they’re disinterested or —

Well, obviously whenever we decide this case would depend to the Florida (Inaudible)?

Louis F. Claiborne:

Yes, that is so — no.

I should add that there is one — the rule that you look to the historic document rather than to the Submerged Lands Act to determine where you start measuring the historic belt of course applies to Florida as it does here.

The historic documents in the case of Florida would of course be their own —

Oh, I’m sorry, my question is (Inaudible).

Louis F. Claiborne:

I take it though that they have had a full notice and opportunity to appear.

We have no present dispute with Florida that turns on the question presented here or perhaps it would be helpful if I could advice the Court more firmly that we anticipate no such problem with Florida with respect to this question of harbor-works.

There may be other questions that turn on this principle in the broader sense.

There are decisions, the decree in this case or the decree of the Florida case speaks of three-leagues from coastline then adopts the definition of the Submerged Lands Act without I suppose meaning to resolve the question we have here today.

(Inaudible)

Louis F. Claiborne:

Yes, but there may be in that some questions with Florida as well.

Hugo L. Black:

Mr. Claiborne, in it — even if Texas were correct or even if they were right, do they claim only as of the date of the Submerged Lands Act in terms of harbor-works, the jetty?

Louis F. Claiborne:

I’m not clear about that —

Hugo L. Black:

Those that are in existence then?

Louis F. Claiborne:

It so happens that the particular harbor-works that we are focusing on, the Galveston and Sabine were in existence in 1953.

Hugo L. Black:

What would be the United States position in that regard that if it — that — if it includes harbor-works, does it only include only the harbor-works that were in existence to the date of the Submerged Lands Act?

Louis F. Claiborne:

I — as I remember, that’s the — that was a — well, in the California case, I think we argued for a coastline as of 1953 rather than offer the rules applicable to coastline as 1953 rather than the later rules.

I should suppose that we would concede that one could include not only this but any future harbor-works if the rule is not 1845 but 1953 — if it’s not 1845 then it’s open-ended I think.

Hugo L. Black:

But maybe even beyond 53.

Louis F. Claiborne:

Yes, I think so.

Hugo L. Black:

So really Florida might well have an interest in them.

Louis F. Claiborne:

Oh, as for the future, yes that is possible.

I will now cede a few minutes to Mr. Sachse on behalf of the State of Louisiana and reserve what time remains for rebuttal Mr. Justice Black.

Victor A. Sachse:

May it please the Court.

We thank the United States Court permitting us to have a few minutes of its time.

Our purpose in being here this morning is to bring to the Court’s attention that Louisiana has filed a motion for a supplemental decree number two in an effort to have recognized the coastline of Louisiana.

Mr. Archibald Cox and Mr. Louis Claiborne have informed us that they would be ready to respond to our motion by December 1st which the time is agreeable to us.

When that motion is before the Court, arguments that really are germane to the Louisiana situation will be presented.

We expect to show that the coastline of Louisiana is in the water, at the outer limit of inland waters that this line has been designated and defined by duly authorized agencies of the Federal Government, accepted and approved by Louisiana historically, economically and necessarily established for the benefit of the United States as a nation and the State of Louisiana as a part of the nation.

We are concerned not with the narrow issue between Texas and the United States in this matter where they talk about a harbor-work or a jetty.

But we are concerned that the language used may somehow impinge upon the argument as between Louisiana and the United States without it being noted as such.

For example, arguments relating to shore, arguments relating to the land and nothing to do with the Louisiana situation, the Submerged Lands Act sets a definition of coastline.

The Act of admission of Louisiana into the Union deals with coastline.

This Court has recognized in the California case an essential distinction between our situation and the California situation or the Texas situation when Justice Harlan for the Court referred to the waters of Louisiana that are not truly navigable.

And we are anxious not to have these issues overlooked or somehow or another confused by argument of counsel who are not concerned with that issue at this present time.

Victor A. Sachse:

I would like to call to the Court’s attention that when this litigation commenced, Louisiana was the only state before the Court.

And after we had our first argument in April of 1957, the Court received the brief from Texas in having res — which was not a party to the case and having received the brief from Texas, the Court then barely said as we point out in our motion that the issues in this litigation are so related to the possible interest of Texas and other states situated in the Gulf of Mexico in the subject matter of this suit that a just, orderly and effective determination of such issues requires that they’d be adjudicated in a proceeding in which all the interested parties are before the Court and the Court then invited the other states into the action.

Byron R. White:

Our recollection is that the Florida (Inaudible) so responded to them.

Victor A. Sachse:

Yes.

Yes, you are right sir.

You are absolutely right.

And when you first invited the other states in and Mississippi and Alabama came but not Florida and Texas.

Then you issued an order that Florida and Texas be made parties so that everyone could be heard at one time and so that the disposition of the issues as to one state would not inadvertently affect another.

We think that the situation is here again when all the states concerned in the gulf coast ought to be before the Court before any decision is made.

(Inaudible)

Victor A. Sachse:

We are asking rather Justice Harlan that no disposition of the matter be made until we can complete the pleadings with the United States on our motion for a second decree and be heard on the completed pleadings in the issues between the United States and Louisiana which involved the coastline — which involve the coastline more seriously than anywhere else in the United States because (Inaudible) area is different from the rest of the Union and the whole matter should be before the Court before decisions that can affect other states are made as we see it.

Byron R. White:

Under what country?

What area?

Victor A. Sachse:

(Inaudible) country, you see the Mississippi river has from time to time been in different places —

Potter Stewart:

Yes.

Victor A. Sachse:

— on the coast.

Potter Stewart:

We’ve heard of that in the controversy between Missouri and Nebraska.

Victor A. Sachse:

Right and —

Potter Stewart:

(Inaudible)

Victor A. Sachse:

— our country is different from other countries.

Our coastline is in the water.

It is at the outer limit of inland waters.

It is not inevitably measured simply from land or simply from shore.

These are not terms suitable to the geography or the history of Louisiana or as embraced in our active admission or in the Submerged Lands Act as it relates to Louisiana.

These issues are not before the Court now but we think that all issues concerning the coastline in the Gulf of Mexico should be before the Court before any decisions are made.

Is there a motion (Inaudible)?

Victor A. Sachse:

Yes.

We filed such a motion Justice Harlan.

We had expected the Government to do so but the Government did not and we decided we shouldn’t wait longer and we did it ourselves.

What’s the status of that?

Victor A. Sachse:

As I say, Mr. Cox called us and said that he would like until the 1st of December to reply.

We agreed.

Mr. Claiborne had said that suits him also and then after they plead and they tell me that it would be an answer and a cross-claim, further pleadings from Louisiana may be necessary.

At any rate, then and only then were all of the issues of the coastline in the Gulf of Mexico properly be before the Court.

In other words, what you’re really asking us to do here is not to decide this Texas case until we see what you should’ve done in the Louisiana case (Inaudible) settle.

Victor A. Sachse:

Yes.

This is right Justice Harlan.

Abe Fortas:

Did you make that motion — in the form of motion?

Is it set on your brief or does it appear in any of the written papers before us?

Victor A. Sachse:

What we said Justice Fortas was that if this could somehow be confined to the narrow issue of the jetties with respect — between Texas and the United States, Louisiana was not concerned.

But if somehow the issues were to be brought in the consideration of their case that then the whole matter should be postponed, yes, we did file that in a written motion.

Abe Fortas:

Well, that — well, I understood that to be your position but perhaps I misunderstood what you said a few moments ago.

I thought a few moments ago, you just said flatly that you think that the decision in the pending case ought to be referred until your submission is completed.

Victor A. Sachse:

You heard correctly sir.

When we filed our motion, the brief for the State of Texas has not been filed.

At least we did not have it and we said so in our motion.

Now we have it.

We see the argument about a uniform coastline.

We recognize that Texas is considering uniformity with respect to time.

But the argument is not so limited as it is expressed in the brief.

They speak of uniformity of baseline, uniformity of coastline and the Government this morning speaks of measuring from land and from shore.

Abe Fortas:

We have nothing in writing to reflect this view of the State of Louisiana or arrived that after you saw the Texas brief, isn’t that correct?

Victor A. Sachse:

We found nothing since.

No sir.

But I think that the scope of our motion covers the present situation.

Byron R. White:

(Inaudible)

Victor A. Sachse:

The decision could be so limited Justice White that it would not affect us at all.

Byron R. White:

(Inaudible)

Victor A. Sachse:

Well, I really didn’t want to having argued the Louisiana coastline case now.

What I wanted to say was that there are issues —

Byron R. White:

(Inaudible)

Victor A. Sachse:

Well, I think we do sir in our motion but I will say it this way.

It would be a mistake, a grievous mistake so far as Louisiana is concerned to discuss measuring the boundary as three miles from land or three miles from shore or three leagues from land or three leagues from shore.

It would be a serious mistake as to Louisiana to discuss the matter of a uniform coastline around the United States because the coastline has to take into consideration geographic and other conditions which vary from place to place.

These are the things which concern us.

Byron R. White:

(Inaudible)

Victor A. Sachse:

We ask and we want you to.

Byron R. White:

Then why do you think Louisiana (Inaudible)?

Victor A. Sachse:

Of course and we think it favors us and we think that we’re able to show that to the Court when we argue though of course I expect United States to present different views.

But at any rate, we’d like the Court to have these views before a decision — a broad decision is rendered in this matter.

Byron R. White:

(Inaudible)

Victor A. Sachse:

No sir, I think not.

It —

Byron R. White:

(Inaudible)

Victor A. Sachse:

We didn’t argue about where our coastline was and this Court carefully said that it was making no determination as to the coastline that you’re only saying that the measure from our coastline would be three miles and not three leagues and you reserve for a future time the matter of determination of the coastline.

This is what our second — our motion for a second supplemental decree will present.

Byron R. White:

(Inaudible)

Victor A. Sachse:

Yes sir.

Thank you Your Honors.

Houghton Brownlee, Jr.:

The Court please.

I’d like to point out first of all that on our brief we had as our counsel, the former Governor and Senator from Texas, Price Daniel.

We were very sorry that he was unable to make this argument this morning for this day but he has accepted a job for the President and he had to refuse himself.

But I can assure you that every word in there, in our brief has his thorough thought in backing and it’s just as if he were here today as far as our brief is concerned.

I’m sorry that we missed on having the benefit of this argument.

This leads me to our first point and let me simply state our position.

It’s very simple.

Texas’ position is that the California case did settle this issue.

We think that inland waters are involved here and that we have an inland water problem and that this is a key just it was — as it was in the California case to a proper decision by the Court for arriving at our coastline as defined in the Submerged Lands Act.

Now, the Government has apparently taken the position that well, we must go back to 1845.

Why, because that — prior to that time we had an old boundary act on the republic statute books.

Houghton Brownlee, Jr.:

Of course we were here in 1947 urging this Court to accept that old boundary act as our proper boundary and the Court turned it down.

It was rejected and the Court said, “We never had any title out there”.

When we joined the Union we lost it.

So whatever grant we got came from the Submerged Lands Act it did not come from the old boundary act of the original Republic of Texas.

It came strictly from the Submerged Lands Act from the Congress.

Now, our position is simply this that the Congress intended only one baseline or coastline for all of the gulf coast of states.

Whether the Gulf of Mexico or the Atlantic or the Pacific coast or how could Congress had known in the first place, which of the states if any on the gulf coast might be able to prove up some additional historic distance.

We say that the word historic boundary as that term was used in debate and so forth refers to historic distance.

It was used with reference to California.

It was used with reference to Louisiana.

It was used with reference to all of the states not just the State of Texas or the State of Florida.

So that we do not see how the Government gets this — out of this particular part of the statute that they quote.

Now, let’s look at again Section 2 and I’m not going to read the whole thing but I merely want to point out that it gives each state and this is all at the same time three miles from the coast then it says, “and to such additional historic distance” and I’m interpolating here.

That’s the way we read the act as the state may prove of.

It does not say that you have to back up, switch around and start out with an entirely new baseline if you are fortunate enough to be able to prove up an additional historic distance.

Potter Stewart:

Well, it doesn’t say it, (Inaudible).

Houghton Brownlee, Jr.:

No sir.

Potter Stewart:

(Inaudible)

Houghton Brownlee, Jr.:

No sir.

Potter Stewart:

I’m paraphrasing too, I don’t believe —

Houghton Brownlee, Jr.:

Yes, that’s right.

Potter Stewart:

— if that’s historic boundary.

Houghton Brownlee, Jr.:

That’s correct and I think what they were referring to there was the historic distance and the historic boundary.

I’ll tell you why I think so and why I think this is important to keep in mind.

There was an effort on the part of Louisiana and if you go back and read the California case, the Court went into this history in great detail.

Louisiana did want an option.

They did think that they would have an additional step out, like they could get a big advantage out of this if they had an option of either relying on the ancient boundary or the present coastline regardless of whether that can prove their historic distance or the — in the additional three miles or not.

Well, of course the Congress turned this down.

It never got into the Act.

That does not say you can either do this or do that.

Houghton Brownlee, Jr.:

It merely defines coastline and I would point out that the decree in this case and in the California case adopted those very words in defining coastlines and in defining where inland waters commence where we start measuring from.

Now, I would like to clear one item that was brought up.

(Inaudible)

Houghton Brownlee, Jr.:

I think it but —

Byron R. White:

— that distinguished —

Houghton Brownlee, Jr.:

I think coastline, it means where you start measuring the grant from Your Honor.

That’s what I think it means.

I think it is (Inaudible) with the baseline.

It was in the California case.

Byron R. White:

(Inaudible)

Houghton Brownlee, Jr.:

Well, certainly you could say, you could take the view that a coastline puts some sort of a limit on it but it is where you start measuring from I think and certainly you would not measure it from inner limit of inland waters.

You have to get to the outer limit before you commence measuring grants, it seems to me.

And none of the convention the waters within these jetties are within inland waters and we have stipulated that this particular harbor-works would qualify under the convention as that type of harbor work that would be assimilated to the coast.

By the way is there any (Inaudible)?

Houghton Brownlee, Jr.:

No sir, not at all.

As a matter of fact, that is one of the stipulations which we have filed with the Court, stipulation number three which I now read that jetties at Sabine Pass and Galveston Harbor are permanent harbor-works constituting integral parts of the harbor system within the meaning of Article 8 of the conventional (Inaudible).

There’s no issue on that.

That I suppose might be a fact issue.

There are no fact issues in this case as we see it.

We stipulated to the plain facts that the jetties weren’t there in 1845.

They weren’t — they were completed about 1909 as a matter of fact, Galveston and the ones that Sabine Pass before the turn of the century, they’ve been there a long, long time.

They’ve been repaired and so forth but in their present form as they are now, we also stipulated that they were there and exist in their present form in 1953 when the Submerged Lands Act was passed if that’s a relevant date.

The reason I point this out is that in the California case, this Court will remember the Government first took the position before the Submerged Lands Act was passed and while the case was before the special master that California was relegated to its ancient historic boundary, the 1850 date of admission boundary and that no harbor-works or other structures built since that time should be included within the State of California.

Then after the Submerged Lands Act was passed, the Government conceded that time that yes, it was the intention of the Act not to go back to 1850 but get up to 18 — 19 — to 1953 and stop right there.

In other words, they conceded that it was the intention of Congress to go ahead and see to the state all harbor-works or built up land or anything of that nature that existed as of the date of the passage of the Submerged Lands Act.

Many references were made in their briefs and I’m not going to quote them here, they are quoted in our brief but to the fact that the gift was a present gift and so forth and that no future build up should be acquired by California.

They were willing to stop there.

Then as recently as — well, it was just a year or so ago, they agreed with Louisiana that off their coast.

They would go ahead and accept the jetties at (Inaudible) Pass has formed the part of the baseline or the coast and if the waters were inland waters within those jetties.

So we are faced really — we’re really almost back to the original 1947 California contention of the ancient boundary because of the historic boundary idea, because they’re claiming that we have to go back to 1845 when they admit that we can’t find it.

Houghton Brownlee, Jr.:

We don’t know where it was.

We have no adequate maps or anything to let us know where it was.

I just can’t see this from their reading of this one paragraph out of the Act levered and twisted just exactly to give it this interpretation when there are so many other things in the Act itself and in the history of the Act to indicate the Congress was talking about present boundaries, a modern coastline and not an ancient coastline.

For example and we pointed out the language, the terms are in present — it’s not on either are, it’s not as they did exist back in 1845.

There’s nothing to tie it down to an ancient boundary.

In fact everything indicates that the concept that everyone had was not to get involved in all of the difficulties that would necessarily be involved in attempting to fix an ancient coastline.

I think this Court very properly and very wisely took the view in the California case that a modern coastline concept was exactly what the Congress had in mind when it passed the Act that the Court itself was given the job, the responsibility of making those definitions.

The Court did make those definitions in the California case and they said we adopt them for the purpose of the Submerged Lands Act.

(Inaudible)

Houghton Brownlee, Jr.:

Yes.

I think the entire Act was in terms of a present grant as far as that’s concern.

(Inaudible)

Houghton Brownlee, Jr.:

Yes sir or as we say historic distance, the three league boundary.

The Act didn’t purport to say where you measure the boundary from except that it did define coastline and that’s our position.

And we say you don’t go back and substitute shoreline or coastline when you apply the Act to Texas.

Well, at the time the coastline as part of our actual (Inaudible).

Houghton Brownlee, Jr.:

I think it shows where the grant starts from Your Honor.

That’s what I believe its — what the coastline means.

I would also point out to the Court that — and this again goes back to the history of the California case that when the Government first filed its complaint in a motion for relief, file a complaint in the California case.

It specifically excluded harbor-works.

These were left out of the case.

So the decree left them out.

And when we got to the 1947 — I mean the 1950 case in Texas and Louisiana, the same pattern was followed and the decree left that in.

It was never anything that took away from Texas what was left by the decree and that included all the harbor-works, all of the inland waters and of course the jetties were there at that time.

So as far as the grant is concern, we think we got our grant from the Submerged Lands Act of a historic distance of three leagues, measured from a modern coastline.

Now, it would seem to me that in order for the plaintiff to get to their alternative point number two that they must establish their first point which is the ancient boundary theory.

In other words, you don’t get to the alternative until you prove your first premise.

That’s absolutely nothing in the Act that we’ve been able to find or in the legislative history that would indicate this sort of intent in the part of Congress.

Mr. Crawford Martin, the Attorney General of Texas would like to now address the Court on some specific matters.

Thank you.

Crawford C. Martin:

May it please the Court.

To start with, I’m sorry.

There has maybe some confusion.

Mr. Houghton Brownlee preceded here the — I noticed the printed docket showed otherwise and I explained that — so you’ll understand that was Mr. Price Daniel was to make it — opening argument because he had made the argument in 1950 and also in 1960 for this Court and he was employed by the State of Texas and did the briefing in this matter and Mr. Brownlee just took his place in the matter — in the case — excuse me sirs.

I think generally speaking, the Solicitor had been quite fair in his brief and argument in meeting the weakness of the Government’s position in this case.

However, that one argument of that which is not exactly fair and I think is completely erroneous and refer plaintiff’s contention here.

A minute ago that we’re in other words talking about who stands to gain in this case.

In the first place, we’re going to stand on the law in the case but I do want to examine that in just a moment and that is if in the brief and he didn’t refer to here but I wanted — he’s got — as you know we don’t get the last say until we have to answer these things as it may come out in his argument — closing arguments.

He said, we are thinking to combine the most favorable elements of these two rules in order to end up a more land.

Well, that is not so.

Not necessarily so.

We’re not certain because we don’t know where that 1845 was ourselves.

We do know for a fact that the Galveston is along the coast.

Let me show that in your brief to answer the question that the Court asked a minute a go, the jetty at Galveston if you can notice, it said it does hug the coast and goes if not, directly out into the ocean.

We do also know —

Potter Stewart:

Where are you, Exhibit C of your brief, (Voice Overlap)?

Crawford C. Martin:

Sir, yes sir.

I’m sorry.

There was — one must too — it would be — they didn’t number it.

It comes on after page 4 over the next page sir.

Printer didn’t do that, I’m sorry.

Potter Stewart:

Well —

Crawford C. Martin:

But it shows the Galveston area also shows on the left side, you’ll see the Calcasieu Pass there in which —

Potter Stewart:

Well, it is on Exhibit C, isn’t it?

Crawford C. Martin:

Sir?

Potter Stewart:

Exhibit C?

Crawford C. Martin:

Yes sir.

Potter Stewart:

Yes.

Crawford C. Martin:

That’s correct sir.

Now, let me say in the first place that beginning with the coastline, we’re only attempting — gentlemen, we’re only attempting and we’re not trying to gain advantage.

Crawford C. Martin:

We’re only attempting to follow what we think Congress — intended what the Congress said and what you confirmed in the 1965 California case.

In addition to that, we feel like that the Calcasieu — the Louisiana case also carry that part so a far as the gulf is concerned.

Now, I want to talk in just a moment about just the coast.

Second place is modern coast.

It’s not always the most favored in our state.

We have now before us Galveston Island where Americans stormed 1900, I think everyone heard of the 1900 storm.

Congress had a hearing on that and they found that in a House document, a beach erosion in Galveston, Texas which is cited at page 28 in our brief and I’ll read from that.

Early surveyed of shore show that prior to construction of the jetty, there was an extensive erosion on most of the reach.

Now, what they we mean reach is the east beach to the 10th Street but a maximum section of shoreline from 1838 to 1875 of about 2,000 feet.

Now, that is cited to you to show that this is the very point that we’re talking about in this case of the Galveston jetty close to it and we certainly — 2,000 feet projected out into the gulf would probably give us more the other way around.

I may say also that we don’t interpret this Act.

Maybe the justice department might change their mind about — we don’t interpret it.

We can come and go and select is — what we want and what part of the beach should go up.

If I understood that correctly, we don’t — we didn’t know that and we’re not standing on that this morning because we didn’t know that — didn’t understand that to be the position of the United States because we thought that we had to choose once and choose only once and once we chose, we had to stand by it and that’s the position we’ve taken here this morning and that our entire coast stands on the proof of our historic boundary.

At Galveston, we have this present coast is much less than it was in 1845.

Our trouble there of course is — Justice Harlan said a minute ago pointed out that it’s almost impossible to determine where the coast was in 1845 because in — prior to — along in the middle 50’s there was no maps and even up until the present time that parts of the beach have never been exactly charted and that’s why — let me explain right in there.

That’s why that the matter was left to this Court as stated in the California case rather in Congress try to put it in there.

You remembered one time in the hearings is brought out in the California case that the attorney general brought in and thought they would attach a map to the Act and this would settle everything.

Will it create such a few or that it — it will soon drop out and the mapped part was not there anymore at all.

Now, I want to go to — back to the law gentlemen.

Regardless of which the Governments hurts or helps, I think Mr. Brownlee’s arguments in our brief clearly shows Submerged Lands Act contains only one baseline and one coastline and that’s our contention here and I don’t think it was quite brought out enough in our appendix.

We have stipulated as far as the facts are concerned.

We don’t stipulate to force foreign law because it wouldn’t be binding on this Court that there were no artificial harbor-works or other structures existing in the gulf and in Texas in 1845 but the most important one is here and that is the jetties at Sabine, that’s where –locally, we pronounced it Sabine and Galveston harbor, our permanent harbor-works constituting an integral part of our harbor system within the meaning of Article 8 of the convention of the territorial sea and taking a contiguous zone and that is as far as I can see is there is no fact question gentlemen.

There is no fact question involved.

Byron R. White:

Mr. Attorney General.

Crawford C. Martin:

Yes sir.

Byron R. White:

What’s your reading (Inaudible)

Crawford C. Martin:

No sir.

My understanding to it — what — that was the Government’s contention.

(Inaudible)

Well, you held that it was the same as it just — as the — as a treaty that meant that inland water is included, the jetties and the harbor-works and that’s where you begin your — that’s where your coastline is.

Byron R. White:

Did we say that the (Inaudible) or would it include any other waters outside (Inaudible) —

Crawford C. Martin:

As I understand what you asked sir was that you said that the treaty as it was when it was signed by the President in 1961 would be as the treaty was at that particular time.

In my understanding of the treaty is that — in my understanding with the hold of this Court is that if there’s any additional harbor-works are built that it extends the coastline out to where that was.

That’s my understanding of it.

I may be wrong.

They did not — they — let me say that this is in the California case Your Honor.

Is In that case 95 or 99% of the argument was over where this islands out there where you could draw a line around these islands out there and include all of that in the inland waters.

And that — and only — is only about two sentences in the California case with concern to this case and that’s my understanding of it.

Byron R. White:

But your claim would be then that your historic boundary out in the gulf would be subject to change your own act of building jetties or breakwater?

Crawford C. Martin:

Yes sir.

That’s — in other words, let me put it this way.

Those were not built with the State of Texas.

They were built by the federal government but that’s — in other words, as I understand this, the majority of this Court when erode on it, it was — one of the efforts was to fix the treaty to be the same law that you would have — I will — they would be the same as I understand it.

And that is the law because as I understand, the treaty says that the inland waters shall be the outer most part of those and it was the desire of this Court to make one uniform law which would follow the treaty.

William J. Brennan, Jr.:

Well, let me see now Mr. Attorney General.

Crawford C. Martin:

Yes sir.

William J. Brennan, Jr.:

If your jetties here at Galveston were to be extended out another mile.

I don’t know whether that’s possible if they were next year, could you then say that the Texas boundary will not steal another mile within —

Crawford C. Martin:

Let me put that that we — this is covered part of the stipulation.

There is a part in the treaty that says it becomes unreasonable than you disregard it.

Now, I didn’t want to go into that because we had stipulated on this particular ones that we have in front of us and that is in the treaty that it becomes now — and there’s no doubt in my mind I think the Court intended to follow that rule and that rule is what this Court laid down and this Court had skid away from controversy throughout the California.

If California extended their jetties out to far to make it unreasonable then under the treaty — and then you followed it.

This Court follows a treaty, therefore it would not be included.

That’s my answer sir.

(Inaudible)

Crawford C. Martin:

First, the — let me say this that the government’s chief witness and advisor in the California case, Mr. Aaron L. Shalowitz, one of the leading experts in sea and shore boundaries while he was in Florida by the Coast and Geodetic Survey, he wrote a book and has always desired when you’re arguing if the other fellow write a book.

He’s written a book here and as put out by the United States Department of Commerce post geodetic survey.

And if the Court would bear with me just a moment, I would like to just to turn to page 167 and the part — and this book was put out in order to be — the federal agencies might be able to interpret.

This is the interpretation of the Submerged Lands Act they put out in order so they might have some guideline.

Crawford C. Martin:

I begin reading in the middle of the page, reading that as a whole together with the discussions however it seems reasonable to assume that what the Congress wished to preserve for the states was a concept of distance, fixed as of the date of admission, three miles or six miles and so forth rather than the concept of a fixed line in the water.

Under this interpretation, the historic distance would be applied to the present coastline to fix out a boundary of the state.

And I drop on down — he’s got just a little bit more.

If this the — the Submerged Lands Act is encored with the common law rule which is a federal rule that where the sea is a boundary, the doctrine of erosion and accretion is normally applicable and the boundary shifts with the change.

And if you bear with me just a moment, I won’t to read one more sentence.

From the practical point of view, the sea or present coastline is a logical solution or it would be exceeded difficult if not impossible task to determine the line of ordinary low water mark in a distant past talking about the past years.

Act — that surveys of our coast did not begin to come available until the middle of the 19th Century and in mini-sections of low waterline is never actually been surveyed.

That I think is this man, as far as I can see is a well-reasoned book and not just because it was but it — he has done a tremendous job.

Now, I want to pass another question and that is that the Government in this case took the exact opposite view in the California case and in that case, of course this Court found against him.

And the Solicitor General of the United States gave his interpretations exactly in the final brief in the California case and I want to quote from it since it’s — we feel directly in point, “We now concede that the Submerged Lands Act by making a grant measure from the coastline in existence the day of the Act has given the state the benefit of artificial works in existence at that time”.

Further —

Hugo L. Black:

At that time, what time?

Crawford C. Martin:

Oh, at the time of the time the act was passed, 1953.

Now, Your Honors, so when it was viewed, you all came along — the Court came along with — and when you adopted the treaty, well, the last thing that it took till ’53 and there’s no dispute that these — I mean, that’s what we stipulated.

There’s no dispute that our harbor-works were there in ’53.

I’d like to read just one more sentence that I’d add what Congress intended this definition to embrace the same shoreline, an outer limit of the inland waters as were then recognized for the purpose of international law, those were the active shore where the natural or artificial, that’s footnote 16, and other outer limits of inland water whether natural or artificially enclosed.

Of course that’s all cited in our brief Your Honor.

Now then, the Solicitor’s brief on page 16 makes a further concession that the interpretation sought here by the Government may be incorrect and already foreclosed by the basic opinion of the case.

And what we’ve — what we — what we’re working with here this morning is what is in the brief.

Some of the things that were said here this morning, we were taken a little bit by surprise, but we’re going to define or argue the best that we can to what we — what is in the brief.

I start here, it says the reading, and that’s on page 16, the reading of the Submerged Lands Act just suggested is not the only permissible one.

I want to show you the Government says that you can interpret it either way.

The purpose of Congress in granting the Gulf States the submerged land within their boundaries as they existed, that’s in quotation, when the state was admitted to the Union may well have been to give each such state not the particular area what — that it claimed at the time but the area it would today enjoy if its historic boundary had been effective against the claims of the United States held to be paramount in United States versus Texas.

There’s a support for this view in the Court’s first opinion in the present case.

And we feel like that in closing, we feel like that that is exactly what we have here.

I want to say in one of the footnotes here, you’ll find that — and I believe co-counsel mentioned a minute ago, but I’m afraid maybe the Court, some of you didn’t hear it.

Mr. Justice, I will comment Attorney General Clark at that time when he filed his original case.

That’s about taking in new harbors.

It was a great out draft about the matter and in his brief in the footnote, we have it in our brief here, he said we do not and do not in — at any time intend to take the harbor-work, claim them to the United States.

That was in his footnote there and that’s the reason why when you go in to the reading of the Congressional Journal and there are hearings you don’t find a lot to talk about it because the Government had no time intended the — claimed it.

Crawford C. Martin:

Not until we got this particular complaint a few months ago that we know that the Government at any time intended to because what you have here is you have a very narrow issue like — as I understand the Government’s case, they say we want to come back and we want to start your baseline or your coastline, it means one thing to Texas.

And California, Louisiana, your coastline means something else.

We feel like that the Act only contained one definition of coastline and one definition only and is applicable to both of the states.

Now, in closing, gentlemen, I want to read to you just a moment a little bit more and I’ll be through.

I’ll go to page 32 and I’ll discuss it, but I want it first so I’ll be sure that I won’t get my language boiled up.

I don’t want to stay with it.

Hugo L. Black:

32 of what?

Crawford C. Martin:

Of our brief, sir.

That is the original decree of this — in this case, this is — I believe have been — brought out a lot of rule but I want to make — they’ll be sure about it because this is I think is important.

Decree in this case has awarded Texas title to the submerged lands seaward from its present coastline including the harbor-works and this — go into the Act.

The Act says, coastline — and in the decree, the decree that this Court entered said the coastline means a line of ordinary low water along that portion of the coast which is in direct contact to the open sea and the line marking the seaward limits of inland water.

As against the United States, the defendant states are respectfully entitled to all lands, minerals, and other natural resources underlying the Mex — the Gulf of Mexico.

I didn’t just say Louisiana.

I’m talking about the Gulf of Mexico.

This is your decree, entering seaward from their coastline for a distance of three leagues in the case of Texas in Florida and three geographic miles in the case of Louisiana, Mississippi and Alabama, and the United States is not entitled as against any such state to any interest in such lands, minerals or resources with exceptions provided under Section 5, which is not applicable.

Now that’s — that is 43 U.S.C. 1313.

When this code — when this decree was entered in December the 12th, 1960, the term coastline, I call your attention, that the term coastline had already been defined in a gulf so far as I concede.

I think it was certain there United States recognized as early in their brief show, as early as 1930.

They recognized that the inland waters included the harbor-works.

I agree with you that it was in fact in 1836 because it was of no concern at that time.

But in 1930, this nation began and I want to say that the treaty that was entered into in 1958 ordinary thing in the world but codifying, I think the Government was (Inaudible) read this was not anything would work but codifying what the rule already was.

And in that debate over there on adopting the treaty, since this is footnoted in our brief, when it was adopted, I believe, “No way”.

They said, “No, no, let’s put the word “may’ in there” and the French came back and said, (Inaudible) came back and said, “No sir, we will leave the word “shall’ in there and that is in the treaty, shall be, include the harbor-works”.

Now, that’s our position in the matter.

Gentlemen, we feel that the 1958 rule had been further confirmed by this treaty and your adoptions of the treaty as your rule.

And therefore the case as far as Texas is concerned that there’d only be one coastline and that the Congress didn’t intend two coastlines, it’d be one coastline and it would be applicable to all the states.

Unless there’s further question, that concludes our presentation to it.

Hugo L. Black:

(Inaudible)

Earl Warren:

Mr. Claiborne.

Louis F. Claiborne:

Mr. Justice Black, may it please the Court.

Louis F. Claiborne:

First, a word about Louisiana, perhaps I’ve been too accommodating.

I’m taken by surprise by the suggestion Louisiana makes that in no event should this case be decided until the arguments with respect to the Louisiana coastlines are to be settled and that case conceivably may require reference to a master and therefore delay the resolution of this one for a very long time if that suggestion were adopted.

I had thought Louisiana agreed with us that this case has nothing whatever to do with Louisiana or with the Louisiana coastline but the principle involved here cannot under — in any way affect Louisiana, though it can affect Florida.

As to Florida, I appreciate the fact that Florida perhaps should be here.

I, on the other hand, feel that perhaps that’s their responsibility.

They had been said with all papers in this case from the very beginning had chosen not to appear because they appear not to be concerned, and I don’t know that this rather pressing dispute should be delayed on that account.

(Inaudible)

Louis F. Claiborne:

I’m sure they do, Mr. Justice Harlan.

I know that we made a special point of — we served all the states but we were careful of knowing that Florida could be concerned to assert them.

I remind the Court that this proceeding began by an ex parte restraining order issued on one day’s notice by this Court.

It involves valuable islands which neither side is drilling at the moment under an agreement not to do so.

And unlike the Louisiana case where there’s a working agreement which permits drilling in the interim, here there is none and here I speak perhaps more on behalf of Texas than on behalf of United States.

Texas has voluntarily withheld any action in this area and I don’t know that they should be required to do so indefinitely simply because Louisiana has what I concede to be unjustified fears if this Court’s going astray in its decision here.

One word about —

Hugo L. Black:

What do you mean exactly by saying (Inaudible)?

Louis F. Claiborne:

Well, this question here, Mr. Justice Black of — the ruling here should we prevail will govern the Florida coastline, whether that’s of any impractical importance or not I don’t know but they will be affected in theory by the ruling here, whether in practice — it makes any difference whether there’s any oil involved or any reason of care, I don’t know.

Hugo L. Black:

You mean, you do not mean as I understand you that we should delay action on this case (Inaudible)?

Louis F. Claiborne:

On the contrary, Mr. Justice Black, I am suggesting that Florida had ample notice and opportunity to appear here if it thought itself importantly affected by the ruling that would be made in this case.

It shows not to appear here, I (Inaudible) — I had no reason to say that that wasn’t informed and intelligent choice on its part.

And therefore, I would not suggest that the Court should re-invite Florida which of course was always a party.

There’s no question of its obtaining leave to file.

It could’ve simply responded as Texas did.

At least, it’s my understanding of the nature of this original case.

Hugo L. Black:

I understand that you are sure that Florida has been duly notified.

Louis F. Claiborne:

I am so.

One, word about the argument made by the attorney general of Texas, most of that argument, if I understood it correctly, was about whether our first argument or whether our second argument ought to prevail whether this is an ambulatory boundary or whether it’s fixed as of 1845.

That is the point and the only point to which Mr. Shalowitz’s treaties addresses itself.

He favors the second argument we make, the common law rule that would have an ambulatory boundary, but not a changing boundary.

To include harbor-works, you’d have to have a change in the boundary.

Only natural accretion would be included within the ambulatory maritime boundary.

(Inaudible)

Louis F. Claiborne:

We will do so, Mr. Justice.

William J. Brennan, Jr.:

Mr. Claiborne may I —

Abe Fortas:

That’s not affirmed.

May I Mr. Claiborne, with respect to your last remark, in your principal argument you said that the boundary could be reset from time to time.

Now, do you take that position with respect to California?

Or to put it another way, would you take that position if we should decide in favor of Texas here or are you limiting a possibility of redetermination to ambulatory changes?

Louis F. Claiborne:

If the Court should hold that the California principle applies to Texas, then of course we would concede that new harbor-works would move the boundary out and —

Abe Fortas:

For purposes of —

Louis F. Claiborne:

For purposes of —

Abe Fortas:

— of this act?

Louis F. Claiborne:

Of this act.

And incidentally —

William J. Brennan, Jr.:

Would you take the contrary position in the California case?

Louis F. Claiborne:

Oh, we have taken the contrary position but now — the Court having ruled —

William J. Brennan, Jr.:

Would that — do you think we clearly ruled that it would be an ambulatory boundary?

Louis F. Claiborne:

As insofar as changes of fact, not insofar as changes of law.

If the United States should have a new international —

William J. Brennan, Jr.:

So that — what about —

Louis F. Claiborne:

— should it adhere to a new convention —

William J. Brennan, Jr.:

What about a new harbor-work?

Louis F. Claiborne:

A new harbor-work I take it would clearly throw out the boundary by that much.

And incidentally, extensions do not — are not limited to reasonable extensions.

William J. Brennan, Jr.:

That’s because the treaty would do it that way.

Louis F. Claiborne:

That is correct, but there was an answer that only reasonable extensions of these jetties —

William J. Brennan, Jr.:

No, well, I asked the question whether — supposed you extended the Galveston jetty a mile out further.

Louis F. Claiborne:

It would extend the boundary under a California case were it applicable here by that much.

The rule of that reasonable extensions applies only to things which are assimilated to harbor-works but which are not full-fledged harbor-works.

These are conceded to be full-fledged harbor-works.

One last thing I’d like to draw the Court’s attention to is the legislative history here on pages 13 and 14 of our brief, which make it very clear that the Congress had in mind that — with respect to the three-mile boundary, you had to start from the modern coastlines.

Louis F. Claiborne:

Senator Long suggesting to the contrary was rebuffed.

On the other hand, the Senator who persuaded him to withdraw his suggestion admitted that when you went beyond the three miles, then Louisiana as any other state would look to its historic boundary.