United States v. Louisiana (Alabama and Mississippi Boundary Case) – Oral Argument – November 26, 1984

Media for United States v. Louisiana (Alabama and Mississippi Boundary Case)

Audio Transcription for Opinion Announcement – February 26, 1985 in United States v. Louisiana (Alabama and Mississippi Boundary Case)

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Warren E. Burger:

Mr. Claiborne, I think you may proceed whenever you’re ready.

Louis F. Claiborne:

Mr. Chief Justice, and may it please the Court:

In this companion case we are concerned with a body of water commonly labeled the Mississippi Sound.

It’s a long, elongated, sausage-like strip of water off the coast of Mississippi and Alabama.

It is some 80 miles long and at most 10 miles wide.

It’s perhaps most clearly illustrated in the map… the first of the maps at the back of our exceptions, and I have no quarrel with the comparable map which has been distributed, I think, at the bench on behalf of Mississippi and Alabama.

But referring to our Chart 1, the Court will see that it’s defined, Mississippi Sound, at the east by Mobile Bay, a discrete, separate body of water, and at the west by something called Lake Borgne.

And when I say 80 miles long, I do not include either Lake Borgne or Mobile Bay.

Now, referring to the second of our charts to indicate what is disputed and what is not disputed, we of course concede that Mobile Bay at the east is an inland water of Alabama, a juridical bay, and at the west Lake Borgne and that portion of the Mississippi Sound which is hashed, which goes from Isle Au Pitre to the north towards one of the headlands of St. Louis Bay.

The portion to the west of that is likewise inland water.

What is in controversy, therefore, is that long, thin strip in between, defined by those two inland bodies of water at the east and west and by what are called the Barrier Islands at the south; that is, Cat Island, Ship Island, Horn Island, Petit Bois Island, and Dauphin.

Now, the claim was that this area constitutes a juridical bay under Article 7 of the International Convention and, independently, alternatively, that it is historic inland water.

The Special Master appointed by this Court concluded that it was enclosed.

We challenge each of those conclusions.

Now, straight away I should say that the result in this case may seem perfectly sensible, perfectly reasonable, because that area looks somewhat enclosed, sheltered by those islands.

One Tight say why shouldn’t that be treated as inland water?

The answer is that as a matter of international law it could indeed be treated as inland water.

It is a textbook example of an instance where straight baselines under Article 4 of the Convention would be appropriately drawn.

But as I said in the previous case, this Court quite emphatically twice, in the California case and in the Louisiana case, held that the question whether to invoke that straight baseline way of enclosing inland waters is one to be made by the United States.

It is not reviewable by this Court, and in this, as in all other instances, the United States, for good or bad reasons, has determined not to invoke that way of enclosing inland water.

And that decision cannot be got round, as is sought to be done here, by creating a bay out of islands… a thing which this Court has firmly said may not be done.

Now, recognizing that, the Master looked to see whether he could find a bay that would satisfy the rules of the Convention.

First, he addressed the question of juridical bay.

Now, when you look at this area, it doesn’t look like a bay.

It’s too long and too thin, and normally wouldn’t satisfy any of the tests.

However, if one is willing to indulge in contrivances, one can eke out a bay because one can draw an opposing line anchored on the islands, thereby the distance, the water distance, both for the purpose of the 24-mile line and for the purpose of the semi-circle test… both things permissible under the Convention.

But one still–

William J. Brennan, Jr.:

What’s the width of the Mississippi Sound?

Louis F. Claiborne:

–The width of the Mississippi Sound–

William J. Brennan, Jr.:

From the islands, I mean, to the–

Louis F. Claiborne:

–It… the distance between Isle Au Pitre, which is viewed as part of the mainland, and Cedar Point by going via Dauphin Island is less than 24 miles, just under 24 miles.

Byron R. White:

–If you don’t count the islands.

Louis F. Claiborne:

If you don’t count the islands.

Byron R. White:

Yeah.

Which you’re not suppose to, I guess.

Louis F. Claiborne:

Which you’re not supposed to if that’s a proper way of doing it.

On the other hand, the distance between Isle At Pitre and Mobile Point to the east is more than 24 miles, just a little bit more.

William J. Brennan, Jr.:

Just over 24?

Louis F. Claiborne:

Just over 24 miles, which is why one has to talk about Dauphin Island, which is the key to the juridical bay argument.

It is, the Master himself concluded, that unless Dauphin Island could be assimilated to the mainland, there is no juridical bay here, except, of course, Mobile Bay and a portion of lake Borgne to the west and the little discrete bays which we’ve indicated at the north.

And so he concentrated his mind on the question: Can Dauphin Island properly be viewed as an extension of the mainland?

Once again, the question of distance, use of the intervening waters, and alignment of that island with the mainland were considered; but once again, as it seems to us and as we detail in our brief, those tests simply do not justify Dauphin Island as an extension of the mainland.

And indeed, the Master himself so concluded.

And so, finding that applying the tests of the Louisiana case to Dauphin Island would not satisfy the test here, would not satisfy Dauphin Island here, the Master invoked what is a truly novel proposition, which is that when an island is separated from the mainland by inland water as opposed to territorial water or high seas, then that intervening water may be treated as land, and of course, the island becomes a peninsula… a remarkably neat, self-serving result, but one which leads to quite ridiculous results if carried out too far, as this very same Master had himself recognized ten years previously when writing his report in the Louisiana case, because Louisiana had made precisely this argument and had been rejected by him and by the Court.

It is of course true that inland water is in some sense assimilated to the land; that is to say, the sovereignty of the coastal state of is fully applicable to its internal or inland waters, but it hardly follows that that equality of jurisdiction turns water into land.

And indeed, Article 7 of the Convention in every portion of it distinguishes between land and water.

It measures water gaps as opposed to the land gaps in a bay, all of which are inland waters.

It treats those gaps differently both for the semi-circle test and for the 24-mile rule, thereby very clearly distinguishing and not confusing land and water.

And yet, it’s quite clear that that is the prime, basic reason why the Master concluded that what was under the Louisiana case an island too far removed from land should nevertheless be treated as an extension of it.

We point out that this argument had been rejected by him in one place and, most relevantly, in the case of the Isle Dernieres in Louisiana where formation, an arm of a putative bay called Caillou Bay was sought to be constructed on that same theory; that at the eastern end those islands touched inland water and therefore were connected to land by those inland waters.

And indeed, in this case for reasons which I do not fully appreciate, one of the state briefs has reproduced that very submission by Louisiana rejected by the Master and rejected by this Court.

It’s perhaps well to indicate precisely what Alabama was… and Mississippi were doing here.

In the reply brief of Alabama, which is the thickest volume in the pile, there are a number of maps at the back, and the first one indicates how Alabama treats Mobile Bay as connecting Dauphin Island to the mainland.

There it’s simply hatched.

And in the next one we find that Alabama… the Mobile Bay is truly assimilated to–

William J. Brennan, Jr.:

Which one is that, Mr. Claiborne?

Louis F. Claiborne:

–The… and, of course, Dauphin Island then looks like an extension of the mainland.

Now, that is precisely what Louisiana has sought to do, as Attachment 6 to this brief illustrates.

There’s Caillou Bay as… this is an exhibit Louisiana used… and the part that is hashed is mostly water… Lake Pelto and other water bodies, but inland water bodies, and therefore, said Louisiana, assimilated land.

It seems to us, therefore, that this argument, which has no validity independently, has been addressed by this Master and by, more relevantly, by this Court and rejected, and that accordingly, it is not a viable method for assimilating islands to land.

Sandra Day O’Connor:

Well, Mr. Claiborne, I guess there still is the question of whether it should he treated as an historic bay.

Louis F. Claiborne:

Indeed, Justice O’Connor, and I turn to that.

Sandra Day O’Connor:

And when… when you discuss that, I… I would be interested to know what facts led the Government to think that Long Island Sound meets that test, but Mississippi Sound does not.

Louis F. Claiborne:

Let me say straight away with respect to the Long Island Sound that there was a congressionally-approved compact setting the boundary between Connecticut and New York in Long Island Sound, a thing which would be relevant only if those were waters of those two states.

That is lacking in Mississippi Sound.

There was a long history of enforcement by the United States of its own laws against foreign vessels in Long Island Sound, not true with respect to Mississippi Sound.

Sandra Day O’Connor:

Well, I guess during the Civil War, a fort was constructed or started to be constructed to do the same thing?

Louis F. Claiborne:

A… as Your Honor rightly says, a fort was more or less constructed.

It lasted all of 15 years.

It was never quite finished.

But in all events, let’s assume that it was an indication of the determination actually of the Union to block shipment to aid the Confederacy; nothing much to do with international relations.

But even if it was intended to block British vessels from aiding the South, it does not indicate any view that the waters adjacent to that fort, Fort Massachusetts on Ship Island, were inland.

That fort was designed to prevent belligerent traffic, a thing permissible to do–

Sandra Day O’Connor:

Well, didn’t… didn’t your-didn’t the SG take a contrary position about Mississippi Sound at one point and concede that it was inland waters?

Louis F. Claiborne:

–I freely confess that like all others, Solicitors General had fallen into error in the past.

Sandra Day O’Connor:

Well, but didn’t this Court as well treat it as inland waters and apply the law of the thalweg to some question?

Louis F. Claiborne:

Well that, Your Honor, here refers to the decision of this Court in litigation to which the United States was not a party entitled Louisiana v. Mississippi, the decision of this Court in Volume 202 of United States Reports decided in 1906.

It is argued that that case effectively determined that Mississippi Sound was inland waters.

We say that if there was such a holding, it is not binding on the United States; and this Court has twice made that point by indicating in the first California case and in a subsequent decision that Louisiana v. Mississippi was litigation to which–

William H. Rehnquist:

Well, that… that might be true as to res judicata, but it’s certainly not true as stare decisis.

You’re… you’re… a decision of the Court between two other parties on a question of law binds everybody.

Louis F. Claiborne:

–Your Honor is of course correct, but this Court laid Louisiana v. Mississippi aside as though it were not a relevant precedent in the first California case.

But in all events, it seems to us that that decision did not determine that Mississippi Sound as a whole was inland water, or indeed that any portion of it was.

The Court ruled notice on close examination of that case that there were two holdings.

One was that certain marshy islands in St. Bernard parish, the eastern portion of Louisiana, should be treated as mainland and not as islands… a question which has spawned the debate on that score, but very distinguishable from Dauphin Island or from Long Island.

The second holding was that the dividing line between Mississippi and Louisiana ought to be drawn in the main channel which went south of Cat Island and north of Ilse Au Pitre.

And the issue was whether that rule, the thalweg rule, following the navigation channel was a rule applicable only to strictly inland waters like rivers.

The Court said not so; that rule can apply to arms of the sea, to lakes, to bays, to inlets, and so it seemed to territorial–

Sandra Day O’Connor:

But not to open sea.

Louis F. Claiborne:

–Not to the open sea, but the Court seemed to say to territorial waters.

Louis F. Claiborne:

Since it was speaking of a belt of water over which the coastal states hold sway, language appropriate to the territorial belt, not to inland water, and since the Court noted that the Mississippi Sound was waters of the United States, because the openings between the islands were less than six miles, the distance, twice the distance of the territorial sea.

The decision is somewhat ambiguous, and it may be that at the time the distinction between territorial and inland waters was not clear either in international or national law.

But it is not fair to treat that case as clearly holding what was unnecessary to hold, that Mississippi Sound as a whole was inland water.

Byron R. White:

When… when did the SG concede or purport to concede that this was in inland waters?

Louis F. Claiborne:

On two occasions in the Louisiana case, the Solicitor–

Byron R. White:

Yes.

Why did he?

He must have felt it necessary to do so.

Louis F. Claiborne:

–Well, it was simply a matter of distinguishing a way from the Louisiana context what had been thrown up as an example of inland waters form islands… that is, Mississippi Sound.

And he said this is very unlike Mississippi Sound, which he wrongly said this Court had previously ruled is inland waters because of the presence of the islands and the narrowness of the gaps between them.

That was in 1958.

Byron R. White:

So he… he… he… he misread our prior… the Court’s prior decisions, too.

Louis F. Claiborne:

Indeed.

But he did so with his main eye on litigation involving Louisiana, not concentrating on the Mississippi situation.

But he also was then, before this Court had imported the International Convention as the governing rule, concentrating on what was a somewhat vague, but nevertheless different approach to how to define inland waters.

It may be that under the approach that was then in vogue, it was proper to treat inland waters as defined by a series of islands reasonably close together.

That approach was made impossible once the United States adhered to the International Convention in 1961 and once this Court held in 1965 that that Convention governed for purposes of the Submerged Lands Act.

Those two ingredients were not present when the Solicitor General somewhat casually distinguished Mississippi Sound in 1958.

Now, turning to the other aspects of the claim of historic inland water, it is a little odd to be claiming that this Court so decided, and therefore Mississippi Sound is historic inland water.

If this Court so decided, perhaps that’s the end of it.

But historic claim is a claim of adverse possession contrary to the rules of international law.

That requires a showing that this nation as a nation… and the Master disregarded all evidence of state action on the ground that it was too ambiguous, it didn’t show inland as opposed to territorial claims, territorial water claims… it must be shown that this nation exercised jurisdiction of the body of water as inland water.

The only clear way of knowing that is to exclude foreign vessels… not one bit of evidence of that in this record.

Harry A. Blackmun:

Was there any occasion to do so, Mr. Claiborne?

Louis F. Claiborne:

The record is surprisingly silent with respect to that, but we can suppose that this being a well-known fishing area, there might indeed have been foreign fishing vessels that would have wished to come into the area.

John Paul Stevens:

Mr. Claiborne, how deep is the water in the bay?

Louis F. Claiborne:

Well, the channel that separates Dauphin Island from the mainland, though somewhat artificially maintained, but artificially maintained for well over 150 years, if I remember is some 12 feet in depth.

Some other… there is a channel all the way to Lake Borgne which is maintained.

John Paul Stevens:

That’s the Intercoastal Waterway.

Louis F. Claiborne:

Intercoastal Waterway.

Louis F. Claiborne:

And it accommodates purely coastal vessels, but it’s an… it’s an artery of commercial commerce.

John Paul Stevens:

And the balance of the sound is how deep?

Louis F. Claiborne:

Oh, anywhere from 6 to and perhaps even shallower portions up to 10 feet, I think I’m correct in saying.

But, of course, depth has never been in international law a criterion for high seas.

John Paul Stevens:

Of course, it might have some-might explain why there’s not as much foreign shipping as there might otherwise be.

Louis F. Claiborne:

Indeed.

Right.

Now, this nonconforming use by the United States of the area as its own inland waters, excluding foreign shipping, must have been clearly asserted; it must have continued for a long period of time so as to develop into a usage; and must have won the acquiescence of foreign nations.

Sandra Day O’Connor:

Well, but if the water is so shallow that it isn’t used, and there’s no evidence of such use by foreign vessels, what would you look to?

Louis F. Claiborne:

Well, I would say, Justice O’Connor, that the burden is on the states to show, and indeed as this Court has said, to show beyond doubt when the United states disclaims the area as its own historic waters that history, contrary to the rules of international law, make this area the internal waters of the United States–

Byron R. White:

When did the United States first indicate this position, that it disclaimed any… disclaimed these waters as inland waters?

Louis F. Claiborne:

–It first did so, Justice White, in 1970.

Byron R. White:

And what was the occasion for that, the starting of this lawsuit?

Louis F. Claiborne:

No.

The occasion… this lawsuit… this aspect of this lawsuit didn’t begin until ten years later.

The occasion for that was that there was a delimitation of the coast of the entire United States.

A committee was formed for that purpose, and it was then discussed and determined that what had once been supposed to be inland waters, that it did not fit the rules of the International Convention, and accordingly, enclaves must be drawn inside the body of water.

Byron R. White:

By the way, what was the basis for say… saying that the waters inside that line from Isle Au Pitre to the coast… what was the basis for treating the waters to the west of that as inland waters?

Louis F. Claiborne:

Well, they meet all the tests provided one takes Isle Au Pitre as an extension of the mainland, and it is of the same sort of deltaic formation as the rest of those waters which were involved in this Court’s decision in… in Louisiana v. Mississippi–

Byron R. White:

But… but they weren’t adjudicated, these particular islands.

This was–

Louis F. Claiborne:

–Well, Isle Au Pitre was mentioned.

It’s hard to tell from the decision whether Isle Au Pitre was treated as part of the mainland or as an island.

Byron R. White:

–But this was… is… were the waters treated as inland waters because they were… they were a juridical bay?

Louis F. Claiborne:

Oh, yes.

Byron R. White:

Not a historic bay.

Louis F. Claiborne:

Not a history bay.

I may say that the official line of the United States is not in Isle Au Pitre but is at the place west of that.

In the hearing of this case, the expert for the United States… well, I think it was in answer to an interrogatory… we conceded that Isle Au Pitre might be an appropriate headland, and we… the Master so accepted, and we have not accepted the previous determination.

It makes no practical difference whether–

Byron R. White:

But Isle Au Pitre… you have to… all those islands, that whole chain of islands has to be treated as a part of the mainland.

Louis F. Claiborne:

–Yes, but as far as the whole chain, if one means the Chandeleur Sound islands–

Byron R. White:

Well, the ones… the ones–

Louis F. Claiborne:

–West–

Byron R. White:

–The ones southwest of Isle Au Pitre–

Louis F. Claiborne:

–Yes, but that is a determination this Court made with respect to all but perhaps Isle Au Pitre in Louisiana v. Mississippi and which is almost unavoidable because it’s nothing but a criss-cross.

Our map is a little… shows a bit too much water there.

If you follow the low water line–

Byron R. White:

–For your case it shows too much, that’s true.

Louis F. Claiborne:

–But the map submitted by the states perhaps gives a more accurate impression, because they’ve used a darker color.

I’ll reserve what time I have for rebuttal.

Warren E. Burger:

Mr. Bruce.

Jim R. Bruce:

Mr. Chief Justice, and may it please the Court:

The states take the position that the Master’s findings and conclusions are eminently well founded.

They further submit that his reasoning is further reinforced by certain bases which the states have submitted in the way of exceptions merely to support the Master’s ultimate finding.

In the brief time allotted to me I will address the question of the Master’s finding as to Mississippi Sound as inland waters under Article 7 of the Geneva Convention.

Mr. Cohen will address the treatment of Mississippi Sound as inland waters.

While we’ve separated these arguments for the purpose of presentation, we certainly invite the Court’s questions as to either issue at any time.

I think the most interesting thing that tends to jump out at one as you look at the map which we have submitted for the purpose of oral argument are the four patches of high seas within the territorial boundaries of the state of Mississippi and Alabama.

The United States takes the position in this case and a similar position in the Long Island case that all it’s doing is applying the Convention, and that when the Convention is properly applied, at least in the Mississippi Sound, enclaves of high seas… in some instances no acre than six feet deep… necessarily occur.

The states would suggest that that is a selective application of the Convention.

Nowhere but in a domestic dispute between the United States and a state would enclaves in fact appear.

Were a foreign nation claiming Mississippi Sound or an area such as that, the question of enclaves would never arise.

It has no international significance in that sense.

A foreign nation could easily validate its claim to those enclaves and to the entire sound by proper application of other provisions of the Convention.

The witnesses on behalf of the United States pointed out that the Government’s position did not further freedom of the high seas.

They further pointed out that it didn’t serve an important policy consideration, and that the inclusion of Mississippi Sounds as internal waters of the state of Mississippi would not in fact extend the traditional boundaries of the United States.

It was also conceded that it would not jeopardize the United States’ position so far as international relations in objecting to… objecting to excessive claims by foreign nations.

The questions I think that relate to Article 7 I think are most important, and I would like to correct the statement that’s been made by the Solicitor’s office, especially with regard to Caillou Pay.

He suggested that Caillou Bay involved a very similar situation; that is, a situation where the islands lying in the mouth of a pre-existing bay.

Jim R. Bruce:

I believe reference to a map of this area will indicate that not to be the situation.

Neither of the two islands which would have been used as headlands for the bay in fact lie at the mouth of the bay to the east.

I’m referring to the attachment to Mississippi… to Alabama’s reply brief, Attachment No. 7.

The two large islands which jut out from the Louisiana coast at approximately a 45 degree angle do not appear in the least to be a part of a pre-existing juridical bay.

I believe Attachment No. 8 will show the western extremity or the eastern extremity of that particular area.

I’ve looked at these maps, and I don’t see the island the United States is referring to.

I might also note the Court did raise a question a little bit earlier when the United States changed its position.

The Master, of course, found that the position was not announced until 1971, and of course, as late as 1979 in its litigation with Louisiana, the United States still contended that Mississippi Sound was internal waters.

And I would refer to page 39 of our brief in which we reproduced that concession.

They were again relying on Louisiana v. Mississippi.

At another point in their brief they conceded that Mississippi Sound was different from the islands along the Louisiana coast.

They said that the islands there were islands in the open sea… a situation which was quite different from Mississippi Sound, with the clear implication being Mississippi Sound constituted islands in the mouth of the bay.

I think it’s interesting that a former geographer for the State Department, Mr. Percy, back in 1959, writing just about the time that the Geneva Convention was being considered by other nations, shortly before its ratification by the United States, discussed the terms of the Convention, and he talked about islands in the mouth of a bay.

When he did, he pointed to Mississippi Sound, which he described Mississippi Sound as being one of the most impressive dimensions involving juridical bays is Mississippi Sound, partially closed off by a series of sandy islands.

The former geographer at least read the Convention to constitute a juridical bay.

Of course, Mississippi Sound has had various names in its history.

At one time it was called Pascagoula Bay, Pascagcula Sound.

As of about 1940… 1845, it was termed Mississippi Sound as a result of a government survey of the area.

William H. Rehnquist:

Mr. Bruce, what does the record show with respect to commercial shipping destined or… to or from Pascagoula or to or from Biloxi or to or from Gulfport?

Does the record show how that shipping moves with respect to Mississippi Sound?

Jim R. Bruce:

Yes, it does, Your Honor.

So far as… so far as Biloxi, the channel there is not sufficiently deep to accommodate anything but pleasurecraft.

So far as the channels between Pascagoula and Gulfport, the water there… the harbormaster testified and pointed out it was the most shallowest port, Gulfport, shallowest port on the Gulf Coast.

I believe the depth… my recollection is it’s very shallow.

William H. Rehnquist:

But my question is: Looking at the defendant’s map for oral argument which you’ve passed out, how does shipping move to and from Gulfport, I mean with respect to those various islands and that sort of thing?

Jim R. Bruce:

Your Honor, with regard to Gulfport, the ships would come in a dredged channel made for that purpose for entering the harbor works at Gulfport.

The channel extends from Gulfport between Cat Island and Ship Island.

William H. Rehnquist:

Between Cat… Cat Island and Ship Island.

Jim R. Bruce:

Yes, Your Honor.

In fact, the way the ships come in, they come in the channel.

Jim R. Bruce:

Once they get in, there’s not room enough to turn around, and they have a turntable that the ship is turned around on the turntable and goes out the same way it comes in.

William H. Rehnquist:

How does a ship coming from somewhere else in the Gulf of Mexico approach Pascagoula?

Jim R. Bruce:

Your Honor, the channel there would be between Petit Bois Island and Horn Island.

Again, it goes straight in and straight out in very much the same way.

William H. Rehnquist:

Does… does… does a ship headed from Mobile… is there anything in the record about a ship headed from Mobile either to Gulfport or Pascagoula, would… would that go seaward of Dauphin Island?

Jim R. Bruce:

Your Honor, it would have to.

As the Master found, the water there is extremely shallow.

It’s only no more than six feet deed except for the channel, project channel of… by the way, it’s the Intracoastal Waterway… is only twelve feet deep.

It’s not sufficiently deep to accommodate international shipping.

William J. Brennan, Jr.:

Mr. Bruce, what’s the depths of those channels?

Jim R. Bruce:

Your Honor, the channels vary from time to time, and I can’t give you a specific idea.

The… the largest area typically, historically, the tip of Ship Island where the port was built provided a small harbor for ships in the 18th and 19th centuries.

The water there I believe reached a maximum depth of about 17 feet.

So that is the deepest area that I know of in the Sound.

William J. Brennan, Jr.:

So not very big vessels–

Jim R. Bruce:

No, Your Honor.

In fact, I think it’s rather interesting from a historical point of view when the D’Aiberville and the early explorers were sailing in that area they would anchor outside the islands and send small boats in because of the shallowness of the water.

At one point I believe D’Aiberville or somebody was able to get a boat into Ocean Springs, Mississippi, but they had to wait a considerable time before they could get the boat out or almost a change of seasons.

It was not the kind of thing that you did.

The testimony in the record indicates that there were launches, flatbottom boats and so on that navigate this area.

The traffic you have in there is not international traffic lengthwise of the sound.

It is purely domestic, the same kind of traffic, I suppose, that the Court noticed in the Anglo-Norwegian Fisheries case.

It was basically used by local people.

It was basically domestic traffic.

Byron R. White:

–I take it you support the reason the Special Easter gave for treating Dauphin Island as part of the mainland.

Jim R. Bruce:

Yes, I do, Your Honor.

In fact, there are two reasons why we support that.

Number one, we think he was eminently correct so far as his application of the standards which this Court set forth in the Louisiana case.

And by the way, a review of those standards should go beyond just the Court decision in that case.

It should include Louisiana v. Mississippi, and it should also include the International Court’s finding that the fringe of islands along the Norwegian coast constitute an extension of that mainland.

Jim R. Bruce:

And I might point out that the islands–

Byron R. White:

Because?

Why do they… why did they constitute an extension of the mainland?

Jim R. Bruce:

–Well, Your Honor, one of the things they pointed out–

Byron R. White:

The reason that the… the same reason that the Special Master gave, that they were… abutted inland waters?

Jim R. Bruce:

–Your Honor, that is part of it.

In fact, the Court said there that there are numerous bays, straits, arms of the sea and so on, and these provide internal navigation.

That was one of the factors that was taken into consideration.

The depth of water was another; the fact that from… from the sea they appeared to be a whole with the mainland.

In fact, the same factors appear in both this Court’s decision in ’69 and the… in the fisheries case.

In the Court’s directions here, the guidance for the Masters are certainly much more replete and leave less to the imagination of the Master.

I might point out that there there were islands much, much larger than Dauphin Island and at considerably greater distances from the mainland shore.

So far as the Master’s consideration as to the second point… and that is, treatment of islands… or treatment of inland waters as mainland… we think the Master did nothing more there than state the obvious.

The question perhaps might be–

Byron R. White:

Well, that’s… you can’t find that obvious stated in any of our cases, can you?

Jim R. Bruce:

–Well, Your Honor, I think–

Byron R. White:

Can you or not?

Jim R. Bruce:

–there is some indication.

Byron R. White:

Can you give me a citation?

Jim R. Bruce:

Well, Your Honor, so far as–

Byron R. White:

To support the… that particular holding of the Special Master?

He didn’t cite any, did he?

Jim R. Bruce:

–Not exactly.

No, he did not, Your Honor, insofar as that particular–

Byron R. White:

Well, can you cite any?

Jim R. Bruce:

–Well, I think there is something very relevant, and that is this Court’s consideration of Article 11 in the 1969 Louisiana decision.

The question there was one of straight baselines, which I consider to be the point here.

It’s not a question so much of whether inland waters may be mainland, but it’s a question of how you treat a baseline under Article 7 and under the Geneva Convention.

We contend that a baseline is a part of the coast, and therefore, if a baseline lies along an island, it may, too, be part of the coast within the meaning of the Convention.

That’s all this Court has required.

Jim R. Bruce:

There is a baseline drawn from Mobile Point to Dauphin Island, from Dauphin Island to the mainland.

Dauphin Island lies in the mouth of Mobile Bay; therefore, it is a part of–

Byron R. White:

Where does the baseline intersect Dauphin Island?

At the east end of it?

Jim R. Bruce:

–The baseline would go from Mobile Point to the east end of Dauphin Island.

Byron R. White:

Why does it include all of Dauphin Island then?

Jim R. Bruce:

Well, Your Honor, the Dauphin Island would be an integral part of the mainland or a part of the baseline.

The baseline would go around Dauphin Island and of course would pick up on the other side and go from the northern tip of Dauphin Island to Cedar Point.

Warren E. Burger:

What is the approximate distance between Dauphin Island and Mobile Point?

Jim R. Bruce:

2.68 miles, Your Honor.

The distance between Cedar Point and Dauphin Island to the south is less than 1.6 miles.

I think that is an important factor to consider, and that is, the distance between the island and the size of the island.

While 1.6 miles, as the Master noted, might have been excessive for a mud lump at the mouth of the Mississippi, we think for an island 14.75 miles long and which encloses waters to the north and meets the other criteria, certainly constitutes an extension of the mainland.

So far as the question about inland waters as being mainland, I think a very good instance might be the situation with a river.

There’s no doubt but what a river is a part of the mainland.

Although it is water, it is mainland.

And the line joining the entrances to a river is certainly nonetheless mainland.

In fact, it’s treated the same way for a delimitation of territorial seas is mainland.

Just as that is the case there, we think that the closing line for a bay, which is also internal waters, serves to… the same as mainland, and an island which adjoins a closing line would also be treated as mainland for purposes of applying Article 7.

And the real question here is not whether land is water.

That’s never been in dispute.

The question is whether the Convention would recognize the use of an island to help form a bay, and it does so only in a very limited situation… in a situation which this Court and the International Court of Justice have both said can only happen where the waters between are so closely related to the mainland as to be justly treated as internal waters.

We think that’s the only instance where that may happen.

Warren E. Burger:

Mr. Cohen.

Benjamin Cohen:

Mr. Chief Justice, and may it please the Court:

Special Master Armstrong found that Mississippi Sound was a historic bay.

He based his conclusion on a systematic analysis of the facts, guided by the legal principles laid down by this Court.

Byron R. White:

Does it make any different to the states which it might be?

Benjamin Cohen:

Whether under juridical idea?

No, sir, it doesn’t.

Benjamin Cohen:

I think it would be inland waters under either situation.

The result of the Master’s recommendation we believe for several reasons is factually logical.

The United States international law expert testified that a historic claim to Mississippi Sound would be strengthened by the fact that the Sound is totally enclosed from the open sea.

The borders of the Mississippi Sound on the north are land, on the east and west they’re inland water, and on the south it’s a total three-mile belt of territorial waters.

Second, this geographical configuration is a cul-de-sac.

As Mr. Bruce explained, there’s no reason for international shipping to enter Mississippi Sound other than to go to an inland port.

It is not a route of passage between areas of high seas, and it is so shallow as not to be readily navigable for ocean-going vessels.

Sandra Day O’Connor:

How does the evidence satisfy the continuity requirement for historic status?

Benjamin Cohen:

First, as you correctly pointed out earlier, this Court’s opinion in Louisiana v. Mississippi, 1905, found that Mississippi Sound was internal waters.

Sandra Day O’Connor:

Well, how does the evidence introduced in this proceeding support the continuous exercise of dominion over the Sound?

Benjamin Cohen:

Once… the Master looked at pre-admission history and post-admission history.

He found that the United States exercised authority over Mississippi Sound beginning shortly after the United States acquired this territory from France in 1905 the Louisiana Purchase.

In 1804 the United States Congress annexed the waters of the Mississippi Sound into a customs district.

From that time forward Congress considered those waters as internal waters and proposed in about 1817 the Intracoastal Waterway between Mobile and New Orleans.

Those incidents are consistent with the background reasons why nations claim historic bays.

It’s natural for a nation to lay claim to an area that is adjacent to its coast that is important for reason of economy or vital reasons of security.

Congress then established that Intracoastal Waterway, which is the Gulf Intracoastal Waterway today.

Considering that congressional activity, which continued from about 1803 until the turn of the century, and then this Court decided the Louisiana v. Mississippi case in 1905.

And from that time I don’t believe there has been any… any question about the inland water status of the Mississippi Sound.

As it was pointed out earlier, the Solicitor General, based on Louisiana v. Mississippi, believed that Mississippi Sound was inland waters.

I believe the… the Master found in this case that the United States had exercised jurisdiction over Mississippi Sound, and that that exercise had been continuous, and that foreign nations had acquiesced in that exercise, and that they knew or should have known of the claim being made.

The two issues in this case that go to the heart of the dispute between the states and the United States is whether there was a claim to inland waters made and whether nations knew or reasonably should have known that that claim had been made.

All of these relate directly to the common sense recommendations of the Master’s and the geographical configuration of the Sound.

I’d like to discuss in a little bit more detail the Louisiana v. Mississippi opinion, the 1905 opinion of this Court.

As an opinion of this Court of course it is notice to the world, notice to foreign nations of the claim made.

As was pointed out, in order to decide that case, the Court had to apply the doctrine of thalweg.

The doctrine of thalweg only applies in inland waters.

The issue in that case was to decide whether the boundary line between Louisiana and Mississippi would lie in a deepwater sailing channel between the states.

The Court applied thalweg and found that it did.

In so doing, the Court extended a lateral state boundary over Lake Borgne and over Mississippi Sound to the Gulf of Mexico, which it found to lie south of the Barrier Islands.

Benjamin Cohen:

And, in essence, it acknowledged and recognized the United States exercise of authority over Mississippi Sound.

As I mentioned earlier, the Master, believing that this Court found that Mississippi Sound was inland waters, also believed that congressional actions from 1803 until the turn of the century also believed that the waters were inland waters.

The third basis of the Master’s opinion was that the United States had had a consistent policy in the international community to enclose waters of the type as Mississippi Sound as inland waters.

This the Master referred to commonly as the ten-mile rule, which is basically a rule that inland waters of the United States which are straits or sound which lead to other bodies of inland water, which are no more than ten miles wide, should be dealt with and enclosed as inland water.

The policy that created this situation was established in approximately 1903, which is approximately the same time as this Court decided Louisiana v. Mississippi.

That in a sense continues the United States exercise of authority from 1903 up until that policy was dropped in approximately 1961 with the adoption of the Geneva Convention.

The Master’s analysis of this rule was quite similar to the International Court of Justice Analysis of a similar rule in the Anglo-Norwegian Fisheries case.

In that case there were two issues: whether the Norwegian government’s standard of delimitation of territorial waters was correct under international law.

The court found that it was, but once finding that, they turned to the question of whether the waters behind that line could be treated historically as inland waters.

In our situation this is basically what the Master did concerning the United States policy.

Both the Master and the International Court of Justice found that there was a general policy to delimit inland waters and that these policies had been continuous, and that foreign nations were well aware of those policies.

In fact, in both situations… in the Norway situation there was a request from France asking what was your policy in delimiting waters.

In the United States situation there was a request from Norway asking what is your policy.

So without question, foreign nations were well aware of both policies.

William H. Rehnquist:

Well, when did Norway make that request of the United States?

Benjamin Cohen:

I think it was in 1949, Justice Rehnquist.

In addition to that, both the Master and the International Court of Justice relied on an opinion of the supreme court of the country, the respective country.

In Norway it was the St. Juste case, and of course in this situation it’s the Louisiana v. Mississippi case.

Both found that the subject waters… that the dispute of the subject waters were historic inland waters.

So we submit that the Master’s recommendation in this case is, above all, logical.

We believe it is factually and legally correct.

We believe that the recommendations should be accepted, and the Master’s analysis should be affirmed.

If there are no further questions, that’s the end of my presentation.

Warren E. Burger:

Very well.

Benjamin Cohen:

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is… oh, excuse me.

You have two minutes remaining, Mr. Claiborne, and I apologize.

Louis F. Claiborne:

Mr. Chief Justice:

With respect to the concession by the Solicitor General in respect to Mississippi Sound, of course there was a comparable concession in the very case with respect to Caillou Bay; and this Court quite expressly held that that was not binding, nor evidence of any historic inland water claim for that area.

Louis F. Claiborne:

The International Court of Justice in the Norwegian case did not hold that they were extensions of the mainland.

It held that a nation may enclose islands with a straight baseline, and the international community adopted that rule in Article 4 of the 1958 Convention after the International Court had vindicated the principle.

And that is, of course, the appropriate role if it were chosen by the United States in this case to enclose Mississippi Sound.

The United States has chosen not to, and what this case is is an effort to circumvent that decision not to enclose Mississippi Sound in accordance with principles vindicated by international law, but optional principles.

Now, Mississippi in 1905 was arguing that Mississippi Sound was high seas so that the thalweg rule would not apply.

We don’t tax them with being bound by that any more than we are by what the Solicitor General said in 1957 or ’58.

I should point out that in the so-called exchanges of correspondence diplomatically there is not a single instance in which any representative of the United States addressing a foreign government pinpointed Mississippi Sound as inland water, nor was that area marked, as it should have been under Article 4, as inland water on our large-scale maps.

There were some generalized statements about how we treat and define inland waters which could, extrapolated, mean that somebody might conclude that Mississippi Sound was covered by them.

But that is the extent of it, and that is simply not evidence clear beyond doubt in the face of a clear disclaimer by the United States sufficient under this Court’s cases to make out a case of historic water.

Much stronger cases were made by California, by Florida, by Louisiana, and they failed… and indeed by Alaska.

This, by comparison, is a weaker case and ought not prevail.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.

We’ll resume at 1:00 with the next case.