United States v. Louisiana (Louisiana Boundary Case) – Oral Argument – February 24, 1975

Media for United States v. Louisiana (Louisiana Boundary Case)

Audio Transcription for Opinion Announcement – March 17, 1975 in United States v. Louisiana (Louisiana Boundary Case)

del

Warren E. Burger:

We’ll hear arguments first this morning in number 9 original, United States against the State of Louisiana.

Oliver. P. Stockwell:

Mr. Chief Justice —

Warren E. Burger:

Mr. Stockwell.

Oliver. P. Stockwell:

— and may it please the Court.

This case is now before the Court to determine the coastline from which the measure of three geographical miles that was confirmed to Louisiana in the Submerged Lands Act.

In 1969, this Court reaffirmed it prior position in the California case that the convention on the territorial sea and would control in determining this coastline.

And at that time, they report — they re-appointed a Special Master, the Honorable Walter P. Armstrong and referred to him same issues to be determined preliminarily by Mr. Armstrong and report back to the Court.

The report has now been filed with this Court and exceptions had been taken both by Louisiana and by United States.

The first exception of Louisiana deals with the fact that the Special Master failed to find any historical inland bays along Louisiana’s coast.

The Master first written a preliminary report in which he found that there was no historic inland bays and to that report we filed a motion to ask him to find special findings of fact for the benefit of this Court.

Since he had said that the evidence on Louisiana’s historical bay claim was undisputed and the Appendix 1 to our brief is a motion that we file with the Special Master.

Now, that resulted in the Special Master making 16 special findings of fact which were attached to his report as Exhibit B.

Now, these findings of fact were made after the Special Master had already determined that Louisiana had no inland bays along its coast.

As we read the Special Master’s Report, he is saying that these bays along Louisiana’s coast would qualify its territorial bays and not as inland bays.

We feel that —

Potter Stewart:

That they qualify as —

Oliver. P. Stockwell:

As territorial bays, historic or territorial bays and not inland bays.

Now, we feel that the Master made this determination or the origin with the Government that only the exclusion of innocent passage of foreign vessels was relevant evidence to establish historical inland waters even in a bay and we, and now in this case, before this Court, the United States has not defended that statement of law that they all give to the Master.

They are saying that while that is an important factor that there are other relevant evidence that would show that these waters could be territorial inland waters.

And we say that these facts that were found by the Master which included briefly that since 1870, Louisiana had been passing laws regulating oyster fishing along its coast.

In 1886, Louisiana passed legislation reaffirming it titled in all these bays which was shown on all the published maps and this title were reaffirmed subsequent legislation.

Louisiana, though the Master found that since 1900, Louisiana had been leasing part of these bays for oyster fishing.

And in the early 1900s, Louisiana had been enforcing its game and fishing laws in these bays and using as a line to demark these bays, the outermost mud lump or other feature marked in to see what inference into these bays and three-mile seaward from that line.

And they were treating these bays as inland waters.

They were patrolled by armed vessels with armed personnel.

They required anybody fishing on these bays to buy licenses from Louisiana.

And evidence shows that Mexicans, Spanish, and various other foreign nationals purchased licenses to fish in these bays.

And they also, the Master found that Louisiana had closed seasons.

And that these foreign national recognized Louisiana’s closed seasons.

In 1946, the Master found that Louisiana arrested Mexicans in these bays and the arrest was made more than three miles from the — any territorial three-mile sea within these bays.

Oliver. P. Stockwell:

The Louisiana started leasing these bays for oil and gas in 1928.

Louisiana past Pollution Law in the 1930s and it enforced these laws.

And Louisiana has exercised and claimed jurisdiction over these bays from the time it was admitted in the State in 1812 to the present time.

Now, and also the United States has taken an interest in these bays.

Around the Delta, there was a turnout of game reservation created by President Theodore Roosevelt in 1907 and that was before you had it in migratory game laws.

Now we say, that this evidence — this evidence clearly indicates that Louisiana was asserting to the world by this legislative act and the other acts that it was claiming these bays as inland water.

The Master found that Louisiana’s title to these bays had never been questioned by the United States in 1948.

And in this Court, in its brief, the United States now admits that it has questioned Louisiana’s title to Caillou Bay as inland waters up till 1968.

And if this Court accepts the Master’s headlands for Line E in East Bay, then the waters in East Bay would have been a juridical bay to 1956.

Now, we say that the fact that the Government now has not defended this position that you have to have direct evidence of preventing innocent passage into these bays, that a legal principle that they now see is what we’ve all get all along but you could show these acts against foreigners to show that this water was and inland bay.

Now also, we are ordered to this Court and we feel that that jurisprudence supports it.

The way you have an indentation, like a bay and you exercise jurisdiction and dominion over that bay and establish it as the historic bay that it automatically become an inland bay.

Now under Article of Geneva Convention where they deal with historic base and say that it’s an exception to rules.

It has provided that any waters land whether they are closing line is inland waters.

Dr. Bloom in his book which we cite in our brief discusses this very issue and says, that there’s no distinction between the waters behind the closing line in a juridical bay than there is in a historic bay.

Now, we feel like that one of the issue that the United States discussed is been urged before the Special Master was that you have to have acquiescence of funds to these acts of foreign governments to these acts.

Now, in this Court they don’t defend that legal principle.

They say that you don’t have to have acquiescence and another issue in the before that Master was the burden of proof.

They introduced evidence showing that the United States had purported this claim in a historic bays along Louisiana’s coast.

All of those Acts were after 1940 when Louisiana’s title had already ripened as we see by these past acts.

And anything that was done after that as this Court has said could not dispossess Louisiana of its title because it would be an impermissible contraction of territory.

So this evidence was introduced before the Master to urge that we have to prove our title of this waters which we have treated as inland waters from the initial statehood of beyond the doubt which is almost the same evident you need to have in a criminal case.

Now, in this Court, they don’t defend that principle.

They say that now you don’t have to have that burden of proof.

Now, we feel like that in the United States also before the Special Master that there were no waters along the Louisiana coast that would one time inland waters that would not now satisfy the juridical tests.

Now, of course that’s not true now because they admit that each bay at one time was a juridical bay to its outermost headland in 1918 which should be the Line E, and also admit that Caillou Bay was inland waters.

Now, they will making that argument to the Court, to the Master to keep them, from have to decide, having decide whether Louisiana tied had already been vested by past events whether or not the Government could dispossess Louisiana of that type.

And we say that where these bays had been inland bays and recognized as inland bays by the United States until after the Submerged Lands Act, they remained inland bays.

Now, they argue to that the fact that these bays are once inland bays are the waters for inland waters that that shouldn’t be was in no importance and determine the historical chart of this bays.

Even though Louisiana showed that it exercised enough jurisdiction (Inaudible) prior to the East Bay ceasing the beach bays if they have already don’t bit the test and as continued to exercise that authority.

Oliver. P. Stockwell:

They say that immediately, if they open a bay immediately would lose its juridical characteristics.

Say you had a slight change in the headland or slight change in the water area that the count — that United States will lose thousand of acres of land and you could not acquire that as a juridical — a historical bay to the exercise of jurisdiction and dominion for a period normally to acquire historical title whether you had any prior inland waters or not?

Now, we say that that — certainly that has no basis for that.

It shown no area in the world where you’ve had bays that had been treated as inland bays to now open sea.

And they also, and Mr. Miller who represented United States at the Head Conference in 1930 urged that where waters were once on the dominion of the state as inland waters and you remained and you kept jurisdiction of them that they remained inland waters.

And this was in keeping with the arbitration keys between Norway and Sweden and the Grisbadarna case where they say that a state of facts that have long existed.

In International law, they are disturbed very little and we say that it doesn’t affect the emulatory of question of the coastline.

The emulatory feature of the coastline is primarily relates to that part of the coastline that is indirect contact with the sea.

This is changed by erosion and accretion.

But when you have large bodies of waters such as bays and straits, that this — that principle doesn’t necessarily apply.

Now, we head back to Brushiet (ph) for the Netherlands and testify in this case and that was his opinion.

The United States argues that if they would adopt the evidence that we have introduced in an international court that an international court would not say this to inland waters.

We had back to Brushiet (ph) come over here and he listened to all the evidence and we profound it to him a hypothetical question similar to the evidence in Exhibit E that the Master found and asking what an international court would determine the waters of which these acts have been taken and he said there would be internal waters under the regime of historic bays.

Now, we feel that his opinion should have consideration by this Court.

He is a recognized authority of which this Court has recognized a massive authority.

The same — so we feel that Louisiana has proven that these bays are historical inland waters and that therefore the closing line of the bays should be as Louisiana has indicated.

There’s no dispute as we understand between the government as to the closing lines if this Court will hold that the bays of the Delta.

Now the only bays that are involved, Mr. Justice White you have that map is around the Delta and at Caillou Bay.

Now, these are the bays that we see are historical bays.

At this time, unless you have some question, I’d like to ask Mr. Ellis to talk on the juridical question.

Warren E. Burger:

Very well.

Frederick W. Ellis:

Alright.

Warren E. Burger:

Mr. Ellis.

Frederick W. Ellis:

Mr. Chief Justice, may it please the Court.

In addressing the juridical problems of whether particular bays along the Louisiana Coast qualify as bays and whether the limits are located as contended for by Louisiana or as contended by the United States.

The principle legal authority involved is Article VII of the Geneva Convention on the territorial sea which this Court and as 1969, Louisiana boundary decision held must be applied to the Louisiana Coast.

Potter Stewart:

Mr. Ellis, before you proceed, may I ask, am I correct with my understanding that the map that’s been put before us this morning is identical to the map that was the appendix to the Court’s opinion in the case to which you just referred in 1969?

Frederick W. Ellis:

I understand this is correct, Your Honor.

This was put before you by the United States and we’re satisfied it’s correct, sir.

Potter Stewart:

That it’s the same?

Frederick W. Ellis:

Yes, sir.

They are also explanatory details concerning the —

Potter Stewart:

They made some marks and red here, have they not?

Frederick W. Ellis:

Yes.

They had marked for example.

There’s one little detail, the coastguard line that shows an extensive water area.

Potter Stewart:

Right.

Frederick W. Ellis:

Runs outward to see considerably that is no long and controversy.

Originally, there was 20 million acres in controversy in the case.

It’s now been reduced to approximately 258,000 acres.

Potter Stewart:

I understand that.

Frederick W. Ellis:

The areas in controversy are the Mississippi Delta areas numbered 1, 4, 5, and 6 and Caillou Bay numbered 7 which are affected by the historic claims and the remaining areas numbered on the map or affected by juridical claims.

Additionally, much of the area affected by historical claims is affected by juridical claims.

For example, East Bay numbered 1 on the map is the subject of both historic and juridical claims.

Potter Stewart:

Right.

Frederick W. Ellis:

Now turning to —

Harry A. Blackmun:

Does East stay back?

Frederick W. Ellis:

Yes, sir, the East stays behind.

This shows the historic bay closure at the artificial entrance point and this shows line A employing the outermost extension of the natural land form at the base of the jetties on the headline, the pronounced headline at Southwest Pass.

Incidentally, this Court in its 1969, pardon me, its 1966 decree in the California case in passing upon headland questions noted that where there is a pronounced headland the natural entrance point would be selected by use in the outermost extension of the pronounced headland.

We have fundamentally three kinds of problems in the bay areas in controversy.

Related to the elements of the bay definition which Your Honors can find in Appendix A to the United States brief, the original brief.

Article VII requires that a bay be a well mapped indentation with such penetration in proportion to with the mouth as to contain land luck waters and constitute more than a mere curvature of the coast.

Additionally, it requires a semicircle test.

We maintain that they are basically three elements involved.

One the well-marked element which relates to the identifiable headland requirement this Court required in 1969.

Secondly, the landlocked element governed by depth of penetration in relation with the mouth, which is the (Inaudible) landlocked of mere curvature.

At Ascension Bay, the first of the geographic areas in controversy, the controversy turns principally around the landlocked issue.

William H. Rehnquist:

What number is that?

Frederick W. Ellis:

This is number 2, Your Honor.

William H. Rehnquist:

Thank you.

Frederick W. Ellis:

Your Honors may find this bay also in a map which was prepared to implement your ruling that island should be counted as water area figure R.A. in Louisiana’s Reply brief found at page 58, which map has superimposed upon it in black lines a sketch showing the outline of Monterey Bay.

Monterey Bay is a bay along the California Coast which this Court decided in 1965 was well-marked was landlocked, it had identifiable headlands.

Now, the Court decided in 1969 that islands within an indentation should be counted as part of the area of the indentation, even accepting Government arguments that to be counted what area had to be part of the area of the indentation.

The Court referred to the Master then two issues, the well-marked question and the landlocked question.

During the testimony in this case, Dr. Hodson, the geographer of the Department of State testified that Ascension Bay was well-marked.

His disagreement with the bay be in accepted as in closed in in-lock waters was based solely upon the landlocked issue.

However, as we demonstrate it to the Special Master by comparison to the Monterey Bay map by mathematical data by measurement experts, geomorphological experts.

As we demonstrate it by comparison to Mare Ferd (ph) by comparison to Egmont Bay by comparison to bays that Dr. Hodson himself had recognized along the coast of Alaska, this bay was by any comparison subjectively or objectively landlocked.

For example, it had a depth of penetration 50% greater than the depth of penetration ratio of Monterey Bay.

It’s rather interesting to note in this Louisiana environ that bays are formed by the natural bank or natural levee systems of the Mississippi River or its distributors or its former causes.

At this locale, it is the former cause of the Mississippi by first on the left or the west side of the drawing the Mississippi on the right was Southwest Pass which forms the pronounced headlines which were marked the indentation.

Turning to East Bay, similar land forms (Voice Overlap).

This is East Bay Your Honor.

William J. Brennan, Jr.:

Which one has one?

Frederick W. Ellis:

That is number 1, Your Honor on the government location map.

It is immediately to the East of Ascension Bay.

We have again this pronounced Tedlin (ph) falls.

Dr. Hodson incidentally, in his testimony he recognized that this land and he was — is the geographer of the Department of State that this land forms were indeed headlands that they were indeed identifiable headlands that they were indeed identifiable headlands.

His only quarrel with the headlands that were — that they did not relate to this bay but related to pocket bays.

We demonstrated however by an objective test that he said should control over his own opinion that it satisfied this object test and consequently, we also satisfied the Master on that point as well as using a number of other technical test which satisfied him fully at all of the alternative line claims of Louisiana.

The Master found that each of the alternative juridical claims within this bay was well marked, was landlocked and clearly identifiable headlands.

He required actually a steeper burden of proof than this Court asks for when it required that they be identifiable headlands and he found they were all clearly identifiable by use of the technical tests photographs, over flights and a mass of map data and information.

There’s no time to cover the various alternative contentions which were thoroughly considered by the Master in this area.

The principle problem here turns on area measurement — area measurement under the semicircle test.

It is Louisiana’s contention that the latter in spirit of Article VII should be followed in requiring that the area for the semicircle tests be measured by following the low water line and additionally that islands within the indentation be counted as part of the area.

This is consistent with the ruling of an imminent British trial jurist who considered the same problem in the Thames Estuary which like this area contains title streams, title rivers, and he held that the history of the convention, the letter of it required that every stream, every river become it and be counted all of it.

And he found that the line in controversy, they are satisfied the semicircle test by so doing this.

We submit that the President of the British decision in these Thames Estuary case is very well-reason and should be followed by this Court also.

The only substantial question then is whether he was correct when he decided that tributary waters should be excluded.

Frederick W. Ellis:

The Government withdraw a distinction and say well some tributary waters should be excluded and other should not.

This is a change in a formal position.

They would say, well perhaps rivers or streams should not be included in area measurements.

Let us note right now that we do not in any of the measurements submitted by experts, the mathematics of which incidentally were not challenged at all.

We do not claim any part of the Mississippi River Passes.

These passes as part of the area measured.

The system, our technical expert recommended was to use the tributary waters to the point where they cease to be tributary to this bay.

The passes were tributary to the Gulf of Mexico and thus ad absurdum arguments to the effect that one could by the system go to Canada simply have no application under the recommendation of our technical expert, Dr. James P. Morgan.

William H. Rehnquist:

When you say pass that refers to the water rather than the land, does it?

Frederick W. Ellis:

Yes, sir.

Now, generally speaking, pass means Southwest Pass, for example would be the water but this term is sometimes also applied to the natural bank or natural levee system that bounds the land so that I am not referring to Southwest Pass water bound in this bay, I am referring to the Southwest Pass natural levee bound in a well mark in East bay.

Incidentally, this problem should be distinguished in this area of county and islands from problems of headland selection in connection with islands.

You will hear the Government contend that islands with an indentation should not be counted because they should be treated as part of the mainland.

We would direct this Court’s attention to the fact that when it decided that islands may be realistically treated as part of the mainland that this was done after considering that the convention language did not deal with the problem.

But in this instance, the convention language is explicit and it is not a merely a matter of technical language, it is a matter of the spirit and of the reason for the rule for there is explicit legislative history.

For example we have an appendix, Appendix 1 where we deal with the international law commission history among many, many other items in that technical appendix where we point out that Mr. Fransua, the repertoire mentioned that of the international law commission whose work led to the Geneva Convention mentioned that the rule require islands to be counted as part of the area of the indentation did so because of the fact that the islands tended to link the area with the land more.

This is a reason for count in and being liberal in the question of area measurement not a reason for being restrictive in the method of area measurement.

Similarly, islands at the mouth of the bays, they found that these tends to link the water with the landmark and the more one links to water with the land, the more reason there is to treat it as inland water and this is just antithetical to the Government notion that would assimilate islands to the mainland for purposes of water measurement under the semicircle test.

Turning to the other major category of problems, island headland problems — oh!

But before discussing those, let me point out one other problem.

We have in the sketches presented to this Court which the Government would have the Court rely upon instead of the massive large scale maps and other technical evidence presented to the Master.

Numerous errors and deficiencies which we feel we must bring to the attention of the Court.

Unless, the government position go unanswered that one can form an opinion on the basis of these mass sketches, For example, at South Pass, the Government sketches leave off the islands that form the tip of line A.

William H. Rehnquist:

What’s the status of the government sketches so far as the record is concerned, were they admitted in evidence or are concededly just illustrative?

Frederick W. Ellis:

They were not admitted in evidence as appreciate they’re merely illustrative.

Similarly, in the illustration however there are to patch this from the evidence because we had in the (Inaudible), this land form area here.

Considerable evidence of the land deteriorating until at which they condition like this map which is submitted as illustration only but is a published map of the United States geological survey recently published.

This area here has disintegrated and we show ample photographs for example at page 82 of our opening brief and following to show this state of deterioration —

Byron R. White:

Is that the Joseph Bayou area?

Frederick W. Ellis:

Yes, sir.

Frederick W. Ellis:

These are shown at close-up photographs at page 82 and 83 and these math made with the hydrography for the low water datum in hydrophy includes the low water line shows that this area is substantially identical to the streams and island situations within west bay which I am finding to now which this Court held did not separate Riverside Bay, Zinzin Bay, and Bob Taylor’s Bond.

Incidentally, — excuse me sir?

All of these areas were accounted as part of the outer bay Ascension Bay which is out here would be approximately after you.

And the Court held that these were islands within a bay and that they, and the areas covered which incidentally include streams do not prevent the use of those areas as part of the area of the bay.

We feel the Master fell on to error of a legal sort in connection with island headland problems but we think he misinterpreted the Court’s opinion where it set out factors for determining whether islands are realistically part of the mainland as requiring cumulative rigid tests or requirements for example this is an area in the Mississippi Delta where we have in the headland situations substantial fluvial conditions for example at Southeast Pass which is the subject matter of illustrations in the appendix numbered 1 to our opening brief, one can find either direct the Court’s attention to figure 33 found at page 266.

Mud lumps claimed by Louisiana, these are unique local name for these highly elevated islands, mud lamps.

They are found at a very short distance approximately two miles from the mouth of (Inaudible) where the arrests of a vessel, a private herein seizure occurred in 1806.

This was the subject of the British Admiralty Court decision Diyana (ph) in which an American Ambassador appeared in the British Court and made, I submit in historic waters or historic bay claim here because this really, this Court found itself where islands were an extension of the mainland in Diyana (ph) and these are almost the precisely the same local, we have a geologist testified they had precisely the same characteristics as the any facts and indeed there’s some reasons to suspect that they may even be the very same islands that were involved in Diyana (ph).

The distances involved were relatively minor but very significantly as this exhibit shows that was less than a foot of water separating these islands from the mainland.

This is typical of all of these fluvial islands along the Louisiana Coast.

The very exceedingly shallow waters as far as innocent passages concerned for example in this area, one couldn’t get one of our local pea rows through this area when we need an airboat to get through these areas.

The only kind of navigation that can be done but yet the depth and utility of the intervening waters which these Court said was a fact that have to be considered while conceded was not given appropriate weight we submit by the Special Master.

These are situated on extensions of the natural levee if ever there was a geological natural levees that extension of the mainland form, this is it.

A — eminent geologists testified to these islands being continuations of the physical mainland geologically in this connection, we informed just as the mud lumps were by sediments as the court in that case style them and by the weight of sediments of thrusting them.

The distances involved are minor.

If one examines figure 35, at page 270 of our appendix compared to the assimilation of violence that was done in the case of the Spanish banks by Judge Morris in the Florida matter pending nor before this Court.

Turning to — Oh!

Before leaving this Mississippi Delta area, I wanted to bring the Court’s attention to this illustration from material in the record that shows that the headland — this is the example of the kind of detail we went through.

There’s much more of all of these other areas to.

But where we show that the — this was the outermost extension of the natural form in 19 — natural land form in 1901.

The headland used for line A on the west and that overtime we trace it for here example.

The jetty that was left of the Government’s sketch is shown on this reproduction of the chart of that period and line A strikes that jetty out of space showing it’s the terminus of the natural land which we selected as the natural entrance point.

Now, this shows it on a more modern map.

In the Caillou Bay region, area number 7, again we have an example of fluvial islands.

Islands which were the subject of geomorphological testimony to the effect that they are the remnants of a form of Delta of the Mississippi River.

They had formally been solidly connected to the Mainland.

Technical illustrations are present in our brief for example figure 42 can be found in appendix 1, this is the large technical volume of request to findings at page 292 and you can see the maps in 1853, 1887, etcetera.

In the last century, this island was solidly connected to the mainland.

It was really peninsula.

The Master incidentally rule with us here that he on the basis of even a strict test, he took to apply in the Court’s standards that he found that this island situation post a situation where the island should be treated realistically as part of the mainland.

Frederick W. Ellis:

He felt deterred by this Court’s footnote comment that we have not urged this ourselves and that the Court did not think so.

But of course the Court at that time did not have a full record before it, did not a evident — this is the very reason this Court appointed a Master was to discover such information as the fact that these fluvial islands as testified to by a government geologist, even where he found mainland most deposits on these islands.

The —

Potter Stewart:

Does Caillou Lake completely landlocked?

Frederick W. Ellis:

Caillou Bay?

Potter Stewart:

Lake, there’s a lake in there, isn’t it?

Frederick W. Ellis:

Caillou Lake is in the interior part and I believe it is landlocked completely except for an entrance to it sir.

This is the 1853 map, perhaps you are referring to in figure 42?

Potter Stewart:

No, I’m looking at the temporary map.

I also have the —

Frederick W. Ellis:

Yes.

Potter Stewart:

–old map, 1853.

Frederick W. Ellis:

There are two distinct water bodies Caillou Lake and Caillou Bay.

Potter Stewart:

I understand that.

Frederick W. Ellis:

And Caillou Lake is virtually completely landlocked as you have observed Your Honor.

Caillou Bay was opened at its mouth.

These depths in this bay incidentally which forms a — the Government points to and claim this is a situation rather like Sta. Barbara channel, I believe you here.

Depths of Sta. Barbara Channel Law or in the channel or in excess of a hundred fathoms range up to 1200 feet and more, 600 to 1200 feet.

Depths here on either side of the whole that the Government points to as deep channel but it’s merely a whole one sounding as 23 feet between this on hold less than 5-foot, a vessel drawn more than 5-foot of water could not navigate through here.

In this area for example, these largest of the island opens, I see Your honors, in location C here, the water depth is less than a foot as the picture in the record of myself and my daughter I’ve had taken by technical witness is hang up on with a 20-foot mercury outboard motor cannot navigate a small becto, cannot navigate through these openings.

Turning to the size considerations which the Master deemed important, he found this fact here that we have islands that on hold and Your Honors can see this a larger, a greater in distance than the water gap openings and data is not needed, it’s quite evident graphically.

We feel the foot “No Comment” was perhaps occasioned by the graphics of the Government brief which showed an extremely small scale sketch.

We have tried to point out in our brief, that small scale sketches can be misleading accidentally and that it is necessary to concede as the convention requires the large scale charts.

We incidentally have a great many other arguments that selectivity of time needs have required us not to elaborate upon but of course we do not waive them as such as the chart matters where we maintain that Cahoon (ph) Island for line C which the Master found existed until 1969 that this should control.

We insist on these arguments and merely imagine this so that it will not be misunderstood that we are waiving any of these claims.

Incidentally, a number of the headland claims are supported independently by the application of ordinary headland rules as well as Island assimilation rules, it will be recalled this Court mentioned in passing that rules for headlands applied to islands and we have a number of headland rules that are applicable.

For example in the islands at Southeast Pass we look at which are substantially similar to other islands in the Mississippi Delta that are claimed as Bay headlands and we haven’t argued all of these locations and interests of time.

They found the apex of the salient which are the natural banks of the rivers here.

Some of these other islands our a good deal closer than the Southeast Pass mud lumps to each which I’ve directed your attention particularly as the Bucket Bend Bay where they’re very, very close.

Others are most distant as that pass the loop but all of them have this unique fluvial character present in this Mississippi River Delta, a very, very shallow waters the deepest water found between the islands in the Mississippi Delta its water of four feet and this is at pass elute.

Frederick W. Ellis:

Generally, the water between the islands is less than one foot mere inches a child, a five-year-old child could walk out these islands, that is how shallow the water is and incidentally, out at the exterior headland islands that were claimed in the land that is very substantial and firm because you receive sands there but in the interior portion, in the Joseph Bayou area, the land in here is very, very insubstantial, very mushy due to the differences in the geologic conditions associated with this.

They — this area has become nothing but mere spoiled bank remnants which we maintain ought to be treated technically as what they are islands.

In this Caillou Bay area, it’s interesting to note that the principle water gap there involved Caillou Bay, Dr. Hodson admitted in his testimony was England in character.

As indeed, I believe the Government recognized is that Caillou Bay is inland waters which is —

William H. Rehnquist:

Number 7 on the Government’s?

Frederick W. Ellis:

Yes, and this is number 7 on the Government map and it is the open marked A here.

You see it forms the boundary of the Lake Pelto which has been recognized by the Government by this Court hereto for to.

And actually Caillou Bay, the (Inaudible) the same island it was all one island at one time, fronts like Pelto also are recognized body of England water adjoining it.

In closing, let me mention that the errors we point to in the Special Master’s Report are almost exclusively errors of law.

A question of the correct method for applying the semicircle test, a question of, did he require the correct standard of proof when he required that headlands be clearly identifiable, not merely identifiable, but clearly identifiable.

Did he require, apply the correct rule when he converted we submit this Court’s mere fact as mere considerations to use the word of this Court into cumulative rigid requirements if you miss one of them even if you have this tremendous fluvial characteristics we have here which this Court felt important enough to talk about the pages in its opinion.

If even in the face of this, if one fact a size or distance is not present as he did in the case of some of these mud lump islands, he denies that uses headlands.

We submit this was a misinterpretation legally of the courts.

On the contrary, the Government’s position whether the Government would ask to reverse the Special Master’s Report as on headland matters, landlocked, well-marked matters at Ascension Bay and that East Bay where the Master rule first the Government ask this Court to substitute his judgment on essentially factual questions not pointing effectively we think to any error of law upon which his reasoning was grounded.

Thank you.

Warren E. Burger:

Thank you Mr. Ellis.

Mr. Claiborne.

Louis F. Claiborne:

Mr. Chief Justice, may it please the Court, I’ll attempt to deal first with Louisiana’s historic claim.

I approached it in this way and I suggest it proper for the Court to approach with a bias against finding historic inland wateres.

I say that because it seems to me there is a presumption against such historic waters that do not conform to the rules of international law or the rules of the convention.

To find the historic bay where there is no juridical bay, obviously encroaches on the first principle of maritime law which is freedom of navigation, freedom of the seas.

Secondly, it derogates from the rules of international convention which tell us how to define a bay if every time an area which look like a bay did not satisfy the technical criteria established by the international convention.

It could be claimed as historic waters, the convention would become a dead letter.

It would serve no purpose.

One must be hesitant, one must be reluctant to find a bay where the rules of the convention say there is no.

Thirdly, to find historic waters on the American Coast contradicts the consistent and very long-standing tradition of American foreign policy which is to view restrictively, narrowly claims into the ocean.

That has been the position of the United States in its foreign relations ever since the days of Thomas Jefferson.

And finally, in this particular areas, East Bay and the rest, it is of course relevant that the United States has taken the position that this are not historic waters and its taking that position not for the purpose of this litigation solely but quite consistently in its international stands which the view to foreign relations.

There can be no claim in this case that the Government has taken one position where oil is involved and a different position where international relations are involved.

At all stages of this case, the Justice Department and the State Department had been consultation and have found a uniform position and indeed the position —

William H. Rehnquist:

That in itself is quite unusual?

Louis F. Claiborne:

Indeed, Mr. Justice Rehnquist.

And I may say perhaps I shouldn’t that we have sometimes in the position of having devout to the geographer the state of element.

Potter Stewart:

Does this say, your basic theme that you’re at the outset that there is and should be a presumption against finding historic base, is that — did you find any support for that and in any of the opinions of this Court?

You gave us four reasons to support, do you think your assertion of that, that is your presumption but is there any support for that in either in the Louisiana boundaries case or in the United States against California or anywhere else you know of?

Louis F. Claiborne:

Only to this extent Mr. Justice Stewart that in both of those cases, the Court took note of the federal disclaimer and gave it weight.

In the California case, it was said that such a disclaimer would be conclusive in the absence of overwhelming proof, that’s such a claim had arrived.

And let me say straight away that notwithstanding all I’ve said about a presumption against historic waters, we recognize as we must in line of the Court’s opinion in this very case in 1969.

That if historic title had ripened to any of these areas before a federal disclaimer was made and we take that to mean before 1948 when the first of these suits was filed then it would be good title but one must be hesitant to make such a finding not only because of the encroachment on American foreign policy.

The awkward situation that would result in having this Court say this is a bay, the State Department saying it isn’t even water.

But the international considerations which view historic waters as an exception and my opponents were free to say that this was an exception as the normal rules of Article VII and I think they must be right in this respect.

Potter Stewart:

But that still, all of that still does not add up to their being a bias against them or presumption against them, does it?

Louis F. Claiborne:

I simply wouldn’t say there will be a bias against Louisianans, Justice Stewart.

Potter Stewart:

No, just historic bays?

That’s — that was your —

Louis F. Claiborne:

Well, I suppose the normal rules of construction would say that when the claim is attaches itself to an exception to the rule the — that exception ought to be construed narrowly.

Now, perhaps that’s a different way of saying that there’s a presumption against findings such an exception.

Potter Stewart:

There are good many recognize historic bays, aren’t there in the — along the coastlines of the United States?

Louis F. Claiborne:

No, Mr. Justice Stewart, the United States and I should say this consistently with its position of restricting the coastline as much as possible of limiting the encroachments on the open sea recognizes on the American Coast no historic bay whatever with the single exception of Long Islands.

And that is in the record through letters from the legal adviser of the State Department and indeed from the Secretary of the State, the Attorney General.

That is the traditional policy of the United States.

Other countries take different views but here we are talking about the American Coast.

Now, —

Potter Stewart:

Was it tested by the rules of International Convention?

Louis F. Claiborne:

Tested by the rules of International Convention which merely recognized in Article VII that they all such things is as historic base without attempting to define them presumably because of lack agreement in the international community on the subject.

Now, bearing in mind what must be recognized is a heavy burden if only because of the federal disclaimer and here the Court has been clear that the disclaimer puts the burden on the state claiming the historic orders.

Has Louisiana proved any historic title to this bay or any of the others areas?

Now, this Court has already said there are three elements which require proof as to each of which the state has the burden.

The first is that there has been an exercise of authority over the area which indicates a claim to that area as inland water not as territorial water but as inland water.

My opponent said that the Master had found that East Bay was a historic territorial bay.

Louis F. Claiborne:

Now, that is simply not the fact.

On the contrary, the Master explicitly found that issue the other way.

He discussed whether Louisiana’s evidence was consistent with the use of the waters as territorial waters that being of course a three-mile territorial belt.

He also adverted to the possibility that one could obtain territorial water title to an extended belt but his conclusion and that conclusion is quite explicit is that the issue which had been presented by Louisiana is there a territorial, are there territorial waters in this bay?

He said, the answer is no.

Now, that is a perfectly clear when one looks at the report, page 56, the paragraph 6 says from South Pass to Southwest Pass East Bay.

Sub-paragraph E — I got the wrong, page 56, I’m sorry.

I was — does this area include — and this is paragraph E on page 56.

Does this area include any historic territorial waters under principal’s of International Law particularly at (Inaudible) East Bay always bay and if so what is the effect.

He answered that question and that is issue 1-E on page 22 of his Report when he said the Special Master has constrained to make some of the finding in instant case and therefore issues 1-D — 1-E and so forth must be in the negative.

Now, we come to the second element which is the continuity of the exercise of authority over the waters indicating that England character which according from the U.N. publication juridical regime which this Court invoke in its last opinion must be so long continued as to have developed into a usage.

And finally, and very important is the acquiescence of foreign nations.

I heard it said a moment ago that the United States had taken the view that acquiescence was not necessary.

What we have said is this, acquiescence is necessary but it may be explicit, expressed or it may be tacit.

Obviously, if the evidence were that foreign governments had over a long period of time been notified of the claim to inland water and had taken no action, made no protest and had obeyed the restrictions imposed, we would concede even though they had been nothing expressed that this amounted to acquiescence.

It would be tacit I guess.

Byron R. White:

What authority do you have that acquiescence in some form is essential?

Louis F. Claiborne:

The authority cited by this Court in its last opinion indicate that either expressed acquiescence or absence of protest is important when absence of protest is discussed it is in the context of having noticed and we simply refer to that situation of not protesting when you had long notice as amounting to tacit acquiescence.

It seems to us to be a debate about words and not a real debate whether one says no pro —

Byron R. White:

You wouldn’t if it’s just a debate about words, you wouldn’t insist in that acquiescence is necessary.

Louis F. Claiborne:

Except that I would insist Mr. Justice White that absence of protest alone is not sufficient.

One must show that the foreign government had repeated and over a long period notice of the claim.

Byron R. White:

If foreign government hasn’t invaded Louisiana, it would be enough to show acquiescence?

Louis F. Claiborne:

It would be enough if a foreign government had been notified over a long period that Louisiana was claiming a space inland waters and had failed to protest that situation provided further that they had some interest in doing so.

Well, one can’t draw a conclusion if there’s no reason to go into his bay.

Now what is the evidence that Louisiana has presented to come to?

I think it’s fair to boil it down to rarely two claims.

The first is that over some period it has exercised fishing regulation within this bay and perhaps some adjacent areas including in that oystering and shrimping.

And secondly, it invokes its mineral exploration and leasing in East bay and Caillou Bay.

Now, when we get down to looking at that evidence, what do we find?

Louis F. Claiborne:

With respect to fishing first, any fishing or fishing regulation or exclusion of foreign vessels within the three-mile territorial sea proves absolutely nothing relevant to this case.

Because as a matter of international law, it’s always had been the prerogative of the coastal state to exclude foreign fisherman within that territorial sea, or to regulate foreign vessels or to require them to take out licenses and pay a fee.

Indeed, even as a matter of domestic law, it has always been the prerogative of the states within constitutional limitations only which has to say the commerce clause and the privileges and immunity’s clause to regulate fishing within that marginal belt of three miles.

And even the California case which said the states they would own the belt did not take away from them the right to regulate fishing provided it was done in a none discriminatory way vis-à-vis of the U.S. citizens.

And indeed, the Court so held in Toomer and Witsell.

Of course since 1953, the Submerged Lands Act has clearly confirmed the rights of the states to regulate fishing within this three-mile belt.

So nothing can be made of the activities of within the three miles.

Beyond three miles, it’s of course settled by early decision of this Court’s (Inaudible) versus Florida that regulation with respect to its own citizens indicates no claim.

Now, what about regulation of foreign fishing or exclusion of foreign fishing beyond three miles?

Even that may amount to no more than the claim of a wider territorial season three miles and indeed during all of this period, Louisiana was claiming a much wider territorial sea.

It was 27 miles between 1938 and 1954 and it was nine miles between 1954 and 1960 when this Court’s decision came down.

And as a matter of international law, one is free under the convention to claim its matches 12 miles which would eat up all of the area of East Bay if one took 12 miles from each side.

The basic opening is approximately 18 miles wide of East Bay.

Now, alternatively, regulation of foreign shipping or foreign shrimping or fishing or exclusion of their boats beyond three miles may amount to no more than the claim of the contiguous fishery zone.

Beyond the territorial sea, very far from a claim of England water that is precisely what the United States did in 1966 back to Congress.

It claims a nine-mile zone within which it can exclude foreign fishing or regulate it or both.

And other nations throughout the world had the same.

Indeed, in the 1960 opinion of this Court in this case, the Court noted that for fishing among other purposes, nations had for hundreds of years created belts of jurisdiction of the coast.

And the Court referred in that case to a tabulation which should have been made during the Senate Hearings in 1951 in reference to the Submerged Lands Act legislation.

I have lodged with the clerk for the information of the Court, should the details be of interest three-year tabulations of claims made in the world community of fishing zones that exceed the territorial sea.

One is from the Senate Hearings to which the Court itself referred in 1960 opinion.

One is from the 1960 addition of Shalowitz which has been referred to by the Court and the parties.

And the last is the most recent state department of publication published in 1974 which incidentally shows that no less than 36 nations have fisher zones either excluding foreign fishing or conservationers which go well beyond the territorial sea and which obviously not intended to imply any claim to inland waters, indeed not even to territorial waters.

I conclude therefore that the fisheries regulation would indicate no claim to inland water here.

And that’s on the assumption that there’s some real evidence about it.

The truth of the matter is that we have a series of acts of the legislature entirely inconsistent and contradictory some placing a three-mile belt within this bay everywhere else.

Some on 18-foot long and all three fathom line which is always within landward of the three-mile belt in this bay to east.

And some of them, apparently claiming East Bay on what’s called the point to point basis between the two levels.

The evidence as to the way in which the statutes was actually implemented is also most ambiguous.

First, we know that no lease was ever granted more than three miles from shore.

Louis F. Claiborne:

As to fishing and shrimping, there is evidence that for broken periods, there was a patrol that ran from one ended the southwest jetties to the end of the south past jetties.

But it’s perfectly clear that that was not a consistent practice.

What it meant even when it was used is not clear.

At times, the 18-foot line or the three-mile line were used instead.

So we have fall from a long continued consistent usage developed on the issue of enforcement, even assuming that such a policy would prove a claim to inland waters.

As to the exclusion of foreign fisherman, when you look at the depositions on which those allegations submit, you discover that most of them in fact live locally for all we know citizens in any event seemed to have been from that residence of Louisiana.

And the notion that their acquiescence in this fishing license regulations got back to China or Japan or Spain or the Philippines is most unreal.

Anyway, they agreed to by the $5.00 fishing license or shrimping license and it turns out when one looks at the record.

The place they seem to wanted to fish most was Calhoun Reef which is very close to shore and whether they bought it three miles out of six miles act not that little to them the interesting ground for shrimping was Calhoun Reef.

Potter Stewart:

Are these soundings on this map in there at fathoms?

Louis F. Claiborne:

I think they’re in —

Potter Stewart:

At Maine low water, that’s what they generally are?

Louis F. Claiborne:

I believe they’re in feet, Mr. Justice Stewart, if that is a composite base now —

Potter Stewart:

Is there any usual, I’m sure.

Louis F. Claiborne:

The series 1200 shots of which they are many of them in the record are in feet, not in fathoms.

And 18-fathom land in — this one does.

Well, I stand corrected but the 1200 charts which we have if you show them in feet.

Potter Stewart:

Generally, in the chart, there are in fathoms in Maine land water.

Louis F. Claiborne:

Which is what this is?

Potter Stewart:

Is it?

Louis F. Claiborne:

It says so.

This is the 1200 series chart and it’s soundings in feet at Maine land water in feet.

And the 18 fathom line — the 18 foot line in shown very clearly.

And as I represent to the Court always well within three miles from the shore of this bay.

And I don’t, I’m not clear where it might be elsewhere.

Now, perhaps I ought to turn to the claim base on mineral exploration that can be dealt with quite shortly.

I’ve had nothing about it this morning but Louisiana’s brief makes much of a lease granted in 1928 which can be construed as covering all of East Bay and all West Bay and a great deal more.

It is clear in the record that the only map accompanying or relevant to this lease which is in fact a release they did in 1937 shows that the oil company to whom the lease at that time been assigned found unusable and therefore release any portion of beyond the certain boundary and that boundary happens to be pretty much the three-mile limit.

Well, inside of it at places generally following it.

It is therefore perfectly clear that there never was any exploration much less any production from any lease granted by the state in East Bay before 1947.

Louis F. Claiborne:

And indeed when the case was last here, Louisiana dated its claim based on exploration from 1947, only in this proceeding has that been changed.

By 1947, of course President Truman had claimed for the country the entire continental shelf and other nations seeing operations more than three miles from shore would not have cared or known whether this was done under the provident, presidential proclamation or because Louisiana treated the waters as inland.

It’s also relevant that as soon as that drilling began in 1947, the United States filed suit against Louisiana and has consistently challenged those operations indeed the Chapman line in East Bay which was meant to carryout this Court’s decree in 1950 follows the three-mile — follows the contour of the coast and in 1956, this Court was required to issue an injunction against Louisiana to prevent the drilling in the East Bay.

It would be a very strange army if by acting — if by prolonging this lawsuit for so long, Louisiana were to be able to establish on historic claim to inland water in East Bay by invoking the very activities which have always been in dispute since 1948.

Now on the historic claim, I think I need to say no more.

It’s clear that there are no unequivocal actions which indicate a claim to these waters as inland rather than as territorial or as contiguous.

There is no consistent pattern which could reasonably be called the usage and there is no indication whatever that any foreign nation was ever notified or ever had come to its notice any of these claims that Louisiana now asserts.

In those circumstances, the absence of protest is meaningless.

We therefore think, the mass are quite correctly rejected to Louisiana’s historic claim.

I turn now to the juridical claims advance by the state and first to East Bay.

Now, we take what is characterize this is simplistic approach here and suggest that you look at this area without any lines on it and reach an impression and that’s all these matters come to whether this qualifies as a well-marked indentation in closing landlocked waters.

I think one has to note first the general shape of that triangle.

The bottom of it is so wide, so open to the sea, it’s really difficult —

William H. Rehnquist:

The Master ruled against Louisiana on East Bay the juridical claim?

Louis F. Claiborne:

The Master ruled in part against Louisiana on the juridical claim but found for one period one line well within the Bay and for another period a second line further within the bay as qualifying as a juridical claim.

William H. Rehnquist:

So your argument is going to all of those findings now?

Louis F. Claiborne:

Indeed, my argument goes to both what the Master found and what Louisiana suggest he should have found.

William H. Rehnquist:

Well, a —

Louis F. Claiborne:

We do attack the Master’s finding of part of East Bay as qualifying as a juridical Bay Mr. Justice Rehnquist.

William H. Rehnquist:

And do you say that we can offset the Master’s finding just by looking at that map and kind of getting the sense of whether it’s a bay or not?

Louis F. Claiborne:

Well, nobody quite simply but that is the beginning.

The Master’s conclusion is not based on any technical expertise.

There is no way technically that one can decide such a matter.

And when one looks at how the Master articulated his conclusion.

It is simply one that I think that line encloses landlocked waters.

Now, I will say that I think the Master started from the wrong premise and if one starts from the right premise, I don’t think one reaches his result.

Potter Stewart:

But it is — if not technical at least it’s objective and measurable isn’t it?

It’s a semicircle test and is 24 miles north and so on?

Louis F. Claiborne:

Yes, Mr. Justice Stewart.

I’m assuming that those technical requirements have been satisfied as indeed the Master quite properly found that the 24-mile rule had been satisfied and it was respect to lines C and D which he thought proper the semicircle test was satisfied.

Louis F. Claiborne:

But you never get there until you first look at unmarked map —

Potter Stewart:

(Voice Overlap)

Louis F. Claiborne:

— and decide.

Well, I would say Mr. Justice Stewart you do it this way.

You look at the map.

You say to yourself, now does that look like a bay or arguably vague.

It may be in the case of this bay, the answer is yes.

You then ask yourself, where are the natural entrance points to that bay?

And this Court itself I think in the last opinion concluded the natural entrance points all the tips of the two jetties.

That seems to be the boundary of the bay.

Louisiana makes an argument about that’s not natural because it’s an artificial jetty but I take that argument to have been foreclosed by the previous opinion.

It’s happens that once you test that full bay, under the semicircle rule it doesn’t satisfy this Court so found in 1969.

Now, the court — Louisiana said last time, we recognize that but we can draw a line, a very artificial line inside which will satisfy the test.

This Court responded, “Oh!

You can’t go back that way, you’ve got to find that there is a geographic bay not one that mathematically satisfies the test.

We follow that approach.”

The Court said there may be a bay, a narrow one, a smaller bay within the East Bay.

We’re not saying there is, we’re not saying there isn’t.

The Master I think misunderstood or at least you seem to take the view that he must assume that there was a bay somewhere in there.

After all with all these bay, there must be a bay.

My job is to locate it.

I think he also assumed that any line which satisfied the semicircle test was at least presumptively good enough to make the juridical tests of the convention.

Now ,it seems to us that that was going about it backwards.

He should’ve first said to himself, now if the whole thing doesn’t qualify, is there in fact anything else that is a separately defined bay within this.

And when you look at the two shores which have essentially straight, there’s nothing that jumps at you as the natural entrance point of a smaller bay.

And that’s not surprising because when you’re dealing with a triangle of those dimensions, more relevantly with an angle at the top which exceeds 65 degrees, it’s mathematically impossible to construct an interior bay that would satisfy the semicircle test if it were a perfect triangle.

Now, of course East Bay is not a perfect triangle.

William J. Brennan, Jr.:

Mr. Claiborne, may I ask looking at that not, what’s the significance of that line below numeral 73?

Louis F. Claiborne:

That does just meant to indicate that the 73 relates to the measurement of the angle, Mr. Justice.

William J. Brennan, Jr.:

That’s the degrees of angle, wasn’t it?

Louis F. Claiborne:

That’s the degrees of angle.

The formula is that if the apex of the triangle exceeds 65 degrees, no way can you draw a line that uses that same angle and form and satisfy the semicircle test.

William J. Brennan, Jr.:

Where would then what’s marked to East Bay could we ask to say the existence of bay?

Louis F. Claiborne:

Oh!

We haven’t exhibited both.

William J. Brennan, Jr.:

I know.

Louis F. Claiborne:

It would indicate it Mr. Justice Brennan.

Its will within but I wanted the Court to look at the map unmarked to think to itself where would we put that line.

Now, the Master said he didn’t go about it that way.

Louisiana suggested to him among many these two lines.

The United States said, “We concede to those lines, meet the technical semicircle test but we dispute that you’d ever found them if they hadn’t been suggested to you.”

And I think that’s the way it ought to be gone about.

William J. Brennan, Jr.:

Which one didn’t find?

Louis F. Claiborne:

For a period in tool 1969.

I think its December 1969.

He found the outer line which is the straight line C.

He found that thereafter, the anchor for line C on the East which is labeled Calhoun Island had seize to exist and therefore had to find another anchor and the next one was the one to the north which supports line D.

We say Calhoun Island didn’t exist for any of this relevant period and therefore line C must fall on that ground alone.

I will not burden the Court with the reasons of why we think the evidence does not support Calhoun Island for the period 1950 to the present and will rely on the brief for that proposition.

Potter Stewart:

Now, your point is that those are not headlands or what?

Louis F. Claiborne:

That those are not natural entrance points of the bay.

The only natural entrance points of any body of water within that general area of this bay or indeed the tips of the jetty or with respect to the smaller pocket bays which we numbered one through five which we fully concede are proper bays but which had happens no defect to three-mile grant.

Byron R. White:

But those bays are within East Bay?

Louis F. Claiborne:

Those bays are within East Bay.

Byron R. White:

And so there may be a bay within a bay?

Louis F. Claiborne:

Indeed.

Indeed we don’t —

Byron R. White:

Even though the bay in which it’s a bay and which the one bay occurs isn’t a juridical bay?

Louis F. Claiborne:

Indeed Mr. Justice White.

Our point is this that this coast is essentially straight and that to pick out points on it, is artificial.

Byron R. White:

Would you concede that somewhere up in the — would you concede to be on that line of bay?

Louis F. Claiborne:

Indeed.

It so happens it doesn’t affect anything.

But it was so testified by the geographer, the state department.

He drew a line somewhere about here.

Byron R. White:

Yes.

Louis F. Claiborne:

And first we concede that this is a bay.

We concede that there’s a bay in here.

Byron R. White:

Yes.

Louis F. Claiborne:

We concede that this —

William J. Brennan, Jr.:

But those concessions you suggest have nothing to do with the (Voice Overlap).

Louis F. Claiborne:

It so happens.

It so happens that they do not.

William H. Rehnquist:

What do you mean precisely when you say that natural entrance points to a bay?

Are you talking about something hiking around the shore?

Louis F. Claiborne:

I think one must look at it from the point of view of a mariner, Mr. Justice Rehnquist who is entering and who says to himself, “I am now within inland waters.

I’ve left the open sea.”

William H. Rehnquist:

But you don’t enter certainly at the point closes to shore if you’re entering the bay.

Louis F. Claiborne:

Well, then it’s perfectly sure that one might more logically enter at the center.

William H. Rehnquist:

Well, you would hope so.

Louis F. Claiborne:

But in this case, one could see both shores of the distance not being great in the case of line D.

But (Voice Overlap)

Byron R. White:

(Voice Overlap) The water is something quite different?

That’s when the inland rules the road takeover and so on and it has nothing to with bays.

Louis F. Claiborne:

Well, internal waters — inland waters —

Potter Stewart:

Are there navigator of a ship has no ways in inland waters, that’s actually the coastguard line.

Louis F. Claiborne:

Well, but you see —

Potter Stewart:

Anyone has nothing to do whether not you’re not in a bay?

Louis F. Claiborne:

Using inland, Mr. Justice Stewart in the sense in which the Submerged Lands Act uses inland or internal waters in the sense in which the convention uses internal.

Potter Stewart:

Inland waters has a term of our having to do with the rules of the road for mares, it has nothing to do with whether or not you are in a bay.

Potter Stewart:

Whether you are in a bay or not?

Louis F. Claiborne:

But Mr. Justice Stewart, this Court has used the term inland waters as the grant states this court has said begins at the seaward limit of inland waters and it’s that use of inland waters that I’m talking about.

And for that purpose, the waters within the juridical bay or inland waters and the waters outside that closing line even though within the inland rules of the road are not inland waters for the purpose of this case.

Potter Stewart:

But there are many inland waters — there are inland waters many, many times when you are not in the bay.

Nobody thinks you are in a bay.

You’re still in inland waters.

Louis F. Claiborne:

But in answer to Mr. Justice Rehnquist, I would say that one has to be able to determine whether it’s from a plane or a ship or from the shore that one has seas to be in waters that appertained the open sea and has reached waters which are landlocked which are internal, which are defined by headlands preferably pinched headlands and which therefore —

William H. Rehnquist:

Wasn’t that the purpose of the convention to enable you to make that sort of a definition?

Louis F. Claiborne:

Exactly.

The convention helps this and that it tell us that such a closing line must be between natural entrance points.

It tells us that the indentation must be well-marked.

It tells us that the line must be such as to enclose landlocked waters.

Beyond that, the convention does not help us.

We must use our own judgment in interpreting those terms and applying them to any concrete situation.

But I say to this Court that the members of this Court are just as able to do that and it’s done on a flat map has nothing to do with any special information that might not be available.

One just looks at the map and make say —

William H. Rehnquist:

Are we supposed to open protractors to conference on Friday and try to figure this thing out for ourselves?

I would think in order to offset the Special Master’s finding on this, you would have to make some attack other than you know we do it a little differently.

Louis F. Claiborne:

What I did try to say Mr. Justice Rehnquist that I think he began from the wrong starting point followed the wrong path and therefore reached the wrong result.

And I think his wrong starting point was assumed that his job was to find a bays somewhere within this bay and secondly, to presume that when the technical semicircle test was satisfied one indulge the kind of expectation that so the other tests.

Byron R. White:

Well, then the —

Louis F. Claiborne:

Whereas this Court had very clearly said you begin the other way and so does the convention.

Byron R. White:

But he did hunt for headlands, apparently?

Louis F. Claiborne:

He conceded headlands just the two of them is more fair Mr. Justice White.

Byron R. White:

Well, it is so but he didn’t just say well, at any point along the smooth coastline, I can mark the beginning of the day just because that’s where the bay satisfies the semicircle test.

Louis F. Claiborne:

Well, I certainly don’t wish to overstate the Master’s decision.

Of course, he recognized that this Court had said you can’t draw the (Inaudible) lines anywhere which merely because they satisfied the semicircle test.

Byron R. White:

(Voice Overlap) of the convention aren’t you that for this definition.

Louis F. Claiborne:

Indeed.

And Article VII begins by telling you what is a bay?

Louis F. Claiborne:

And then as a second check, it imposes a semicircle tests in case you gotten a bad impression.

But you must first find the bay before you use the protractor.

You never get to the protractor until you found what looks like a bay and what is not merely an artificial construction.

I would say that what was happened in this case is that Louisiana last time quite candidly said we’re drawing an arbitrary line that meets a semicircle test which incident they — I’d like to show you just to show you where it was and this time, they said, “Oh!

Well, we’ll have to get little pinpricks on either side out to support that artificial, equally artificial lock.”

Byron R. White:

And the special Master rejected Louisiana’s arbitrary right?

Louis F. Claiborne:

Indeed.

Now, it’s interesting to note where that line is.

Byron R. White:

So it’s purported to follow your rules.

You may just disagree with it?

Louis F. Claiborne:

Well, I — I don’t know about, well if I suppose the Master purported to follow my rule.

But he did not articulate it that way.

He said let’s look at line D and then said, “Oh!

Well, he’s got enough of a headland on the left and enough of the headland on the right.”

He didn’t ever say to himself, now is there really any bay within this bay?

Suppose I went to help other parties, where would I split it?

I point out that the 1968 line is remarkably inland and that was the best line Louisiana could find in 1968 that would satisfy the semicircle tests.

Only now had they developed a news rule for semicircle measurement and talked about the deterioration of (Inaudible) value issues that were perfectly available to them in 1968.

I think one must view that approach with some guarded suspicion.

The other lines shown on this last overlay all Louisiana’s various suggestions, the most —

Harry A. Blackmun:

Mr. Claiborne, what’s the nautical mile distance and the line he finally found?

That’s D, isn’t it?

Louis F. Claiborne:

D.

I –-

Harry A. Blackmun:

Looking from here, it seems it would be about five, is it?

Louis F. Claiborne:

It would appear to be approximately 4-1/2 nautical miles.

Now, cannot in the little time remaining go through of various objections to each of these lines.

I’ll say one word about this new method of going up rivers to include waters so as to satisfy the semicircle test with lines further seaward than either C or D.

United States concedes that C and D meet the semicircle test properly applied.

Louisiana would have you overturn the Master in this respect and find B or A by using up river waters first invoking an English decision by a single judge who was not affirmed in that respect that English Court of Appeal.

Louis F. Claiborne:

I say no more about that.

And secondly, by taking notice of what they claim to be deterioration and chosen by you, a matter as to which they were not free to do because they have not reserve the right to do so in 1969 when they stipulated the correctness of the said 54 maps which is before this Court.

Indeed was before this Court in 1968 and which in any event isn’t sufficient to treat all of that land area as water.

Louisiana waxes hot and cold about water islands and what is mainland when it serves their purpose, areas very far detached from land like all these mud lumps are treated as assimilable to the mainland.

When the little ribbons of water separating large chunks of land, they somehow become true islands and therefore to be treated as water the semicircle test purposes.

I think it will be transparent to the Court that that inconsistency cannot prevail.

William J. Brennan, Jr.:

Mr. Claiborne, has it much been royal explorations seaward lines C or D?

Louis F. Claiborne:

There has indeed.

You must remember Mr. Justice Brennan that that is the beginning point for the three-mile belt and therefore what we’re talking about is not line C as such but a projection three miles seaward from line C.

That would be the award to Louisiana if line C were upheld or if line D were upheld.

William H. Rehnquist:

C would be the equivalent of the low water part base and venue where you work out.

Louis F. Claiborne:

Indeed.

Exactly.

Potter Stewart:

The bays whether is the — we’re now trying to determine the coastline and Louisiana owns three nautical miles out from the coastline.

Louis F. Claiborne:

That is right and the coastline is defined either as the low water line the long and open coast or as the seaward limit of inland waters in a bay.

Potter Stewart:

I thought only the latter that causes all these problems.

Louis F. Claiborne:

And it’s only the latter.

Potter Stewart:

The latter part of the depth.

Louis F. Claiborne:

That they’re all issues.

Our second exception deals with the existence and non-existence of an extension of low tide area of (Inaudible) which is more question of where the low waterline is.

I do not argue that here because it is minor issue and turns more on the facts.

I had best get to Ascension Bay if I expect to say anything about it at all.

Here again, we take the same approach that is we suggest the Court that the proper approach is one of looking at the general area and saying to oneself now is this a bay at all?

Here, there’s no question about which part of it is a bay.

The question is whether any part of it is a bay.

It seems to us that we have here a half moon in which a 42-mile opening to the sea with no possible indication of where the open sea begins and where inland waters or internal waters or the bay itself —

William H. Rehnquist:

Which bay is this —

Louis F. Claiborne:

— begins.

William H. Rehnquist:

— two?

Louis F. Claiborne:

Indeed, number two.

Louis F. Claiborne:

The Government’s chart, the Louisiana dislikes the use of small scale charts gives you a reasonable impression of Ascension bay as compared to the entire coastline and whether one ought to view it as more realistically part of the sea or as a separate landlocked area.

We say that it’s simply not landlocked.

Now, again the Master I think was influenced by this Court’s finding that Ascension Bay met the semicircle test and he thought that was a gold in the direction of saying therefore it’s probably a juridical bay.

This very little indication how he reached his conclusion because he did it all in three sentences.

He said that the bay had well-marked natural entrance points but was very reluctant to identify them.

He said that it was almost perfectly semi-circular in shape, the classic shape for a bay.

He said that it had a startling resemblance to Monterey Bay which this Court had found to be a bay in California case.

Now, we think each of those statements is false.

Where the well-marked entrance point on the West is — baffles me.

It has baffled Louisiana who shifted it about to several places and it has baffled the Master who has chosen one and said there may be many, many more and had to be present into choosing the first because it was much easier to leave it vague.

It seems to us one can’t do that if there’s a will marked at natural entrance point unnecessary predicate for a bay.

It ought to be identifiable.

We see none.

The two possibilities seem to be one that bill pass jetties the Louisiana doesn’t use the jetties because they are not natural.

They are artificially made.

And the only other one that occurs to us is at coming out of past both ending on the tip of Southwest jetty which does indeed look like a well-marked natural entrance point.

It’s the problem on the west that we speak of.

Now, it does —

Warren E. Burger:

Which one who’s the Master’s line?

Louis F. Claiborne:

Mr. Chief Justice the Master suggested that one line was the red one.

He suggested there may be others not telling us which they might be.

We presume that his decision is based on the red line though he was — let me hasten to say the reason why this could be left in the air is because the bay being over large the rules of the convention require that a 24-mile arbitrary fall back line be drawn.

And it so happens that that fallback line and the parties are agreed about where it would be starts here and go somewhere in this direction.

So it doesn’t matter whether you stop there or there.

Byron R. White:

Let’s assume the Master — assuming the Master is correct in the point besides they then the parties are in the brief, worth 25 or 24 miles.

Louis F. Claiborne:

Entirely right Mr. Justice White.

William J. Brennan, Jr.:

Well, let’s see if the Master sustained what remains to be done to locate them?

Actual line?

Anything?

Louis F. Claiborne:

Nothing remains to be done if the Master is sustained.

Byron R. White:

If the line exists at all, you say there is no bay at all.

Louis F. Claiborne:

We say there is no bay and we say that because the point on the west which has been chosen if it’s the Belle Pass jetties.

It doesn’t begin to define that inward curve is one would expect to find for a bay.

On the contrary, it comes out.

It’s convex not concave.

It’s just an arbitrary starting point.

It can’t be seen as anything else so we submit.

Now the other point, on the face of it, it seems you have a little more to recommend it but it is really nothing more than the headland for coming that a bay is.

It doesn’t advert the mariner or anyone else that’s there’s a huge bay to the East.

It tells you where you’re about to go in to a bay coming out of bay of the other entrance of which is the island to the East.

Actually not the island because this whole complex is one coming out of bay so this quite obviously a bay but when you get to here to realize that is huge bay to your right is not realistic.

Now, the Master also said it was almost a perfect semicircle.

It’s that close but substantially incorrect.

If one draws a semicircle on either of these lines, one notices how much land has to be equal into before the semicircle of water is satisfied.

The only reason the bay satisfies the semicircle test is because this Court held in 1969 that these waters can be thrown in.

But in terms of perfect semicircles is all of this of land — this all of this of land showing that the depth is not even but of a semicircle.

Now, the statement that a semicircle is the classic form of a bay is a gross exaggeration.

It is the minimum for a bay.

The classic form of a bay is more like a sea shape with a pincer with something that tells you that you’re now entering internal waters.

Something which does lack the waters inside the closing line, there is nothing here which makes the waters on one side of the line more landlocked than the waters on the other side.

Potter Stewart:

You mean in order to meet the initial tests of a well-marked indentation it has to have that sort of configuration?

Louis F. Claiborne:

Mr. Justice Stewart, I would say to meet the combined test of having a well-marked indentation that encloses landlocked waters.

When one puts those two phrases together, I think one expects to find the classical form at least would be a pincer, a semicircle will satisfy the test but this is not a semicircle because it does not even come in on the west as a semicircle would.

Now when it compares Monterey Bay, which is a pincer one sees what a classical bay does indeed look like.

There’s no question whether the natural entrance points of Monterey Bay that two headlands facing each other and the waters behind the line connecting them quite clearly or landlocked waters one knows that one is within a bay and has left the open sea.

What is more Monterey Bay is only 19 miles wide.

This bay is 42 miles wide.

We suggest that when a bay is over large, there’s all the more reason to require stronger indications that each one has left the open sea.

One can’t see across this opening therefore, there ought to be stronger pincers to cut-off the ocean from the waters inside if one is going to reach the conclusion that this are truly inland bay waters.

I have time for one word with respect to Caillou Bay.

Louis F. Claiborne:

The short answer there is that this Court has already resolved that issue in 1969.

There are enough issues in this case without this Court’s is being tempted to accept the invitation to reconsider that ruling.

What the Court said in 1969 was that neither did Louisiana claim nor was it affect that the either (Inaudible) were assimilable to the mainland as but that they were on the contrary islands.

The Court’s other holdings which were that Islands can never form the entrance to a bay and that you don’t push out a line for the purpose of including islands unless it’s a bay to begin with.

And here, it’s very clear no bay if you don’t anchor it on the islands.

This area would never qualify as a bay unless when you use this as a closing anchor.

Now, here we have Caluboka (ph) about a third of a mile, about 14 to 15-foot depth and a marked channel, a clear separation from the mainland.

No serious debate that this is an extension of the mainland.

What’s more as I say, the courts already resolve the issue.

Louisiana says, all but the United States until 1968 conceded that these were inland waters which is true.

The Court in 1969 said the Government is not bound by that concession because Louisiana has suffered no prejudice from it.

On the contrary, this is received revenues from oil exploration to which it may not have been entitled.

Louisiana says we were prejudiced because this area wasn’t surveyed as carefully as it might have been if that had been an issue.

But the years that have passed since 1968 and the present have offered ample opportunity to the state to make any — to present a further reference if they were useful evidence present.

They did not even reserve the right to do so when they stipulated the maps.

In any event, they haven’t done so and the new evidence doesn’t change the picture.

It doesn’t narrow the gap between the islands and the mainland relevant gap being Caluboka (ph).

In all the circumstances, it seems to us that the Master’s gratuitous invitation to the Court naturally supported Louisiana to reconsider it’s ruling with respect to Caillou Bay also be declined.

Now, I have sought to say to the Court that this is not a technical matter.

And that the Court ought to view it freely without being burdened with the suggestion that the record is overwhelming and that special expertise is required.

I suggest the Master’s Report be confirmed in all respects except its finding at East Bay, its finding at Ascension Bay and its finding with respect to posture Board.

Harry A. Blackmun:

Mr. Claiborne, I understood in your comment, do I understand you to say that only Long Island Sound has been — is an historic bay on the United States coast?

Louis F. Claiborne:

That is the fact Mr. Justice Blackmun.

It appears in two ways.

First, that is representation of both the legal adviser and the Secretary of State in documents on file in this case.

Secondly, it appears if one looks at the charts which have been circulated which have been published and that the request of some foreign government circulated to them delineating the entire three-mile coast of the United States.

And there it would appear that Long Island Sound is the only case where one claims a bay that does not meet the juridical test.

Harry A. Blackmun:

This is why then Connecticut there’s not a party doing next case.

Louis F. Claiborne:

I think that is the answer, Mr. Justice Blackmun.

Harry A. Blackmun:

Of course you have a district court decision against you in Cook Inlet, don’t you?

Louis F. Claiborne:

We do but the best the Court has run its certiorari in that case and we do not acquiesce in the ruling of either the District Court or the Court of Appeal in the Alaska case.

Warren E. Burger:

Thank you Mr. Claiborne.

Mr. Stockwell, you have a few minutes left.

Oliver. P. Stockwell:

In connection with the question of Justice Blackmun, I think the United States recognize just East Bay and Delaware Bay as historical bays.

In addition to Long Island Sound as a matter of fact.

William H. Rehnquist:

Didn’t they meet the juridical bay requirements?

Oliver. P. Stockwell:

I think they do now.

Yes.

But I think before that they were recognized before they had the 24-mile closing line.

They were recognized as historical bays.

Now, as far as Long Island Sound is concerned, the United States through the State Department furnished information to Mr. Griswold to enter interrogatories in their Alaska case instead there were some question about whether Long Island Sound was a historic bay and later Mr. Meek wrote Mr. Griswold to correct those answers and said he had found out that there had been an agreement between New York and one of its adjacent states fixing a boundary in the bay which was approved by the United States and therefore they considered it a historical bay and said it was no question of any dispute about.

That was the only thing he has said about.

They didn’t say anything about jurisdiction and physical dominion or not.

It all automatically became historical bay.

So, we feel that with the long history of action, the Louisiana’s take along these bays, along its course and that there’ve been no — even though the State — United States says evidence is not all that clear but the Master found that they had enforce this laws.

Now when they talk about the fishing, there’s a reason case filed with this Court 54 original in which the United States filed a suit against Texas and Florida to enjoin Texas and Florida from enforcing each fishing laws more than three miles from the coastline.

This suit is pending now.

In other words in and the United States recognize in that court — in that case that they permitted foreign nationals to fish three miles beyond its coastline and if the states had no right to prohibit the foreigners from doing that.

Now of course we recognize in 66, Congress passed an Act creating a 12-mile fishing zone.

We recognize it had a convention on the sea of natural resources same time it had a conventional or territorial sea in Continuous Zone.

But we are talking about in 1948 when Louisiana said its title was vested by the historical acts.

There was no permission to fish beyond the three-mile territorial sea.

And it was in Louisiana enforce those rules within its bay that they were setting jurisdiction against foreign nationals beyond the territory sea.

And certainly would be acts to establish historical waters.

Now Mr. Claiborne didn’t discuss the fact that these bays were recognized at one time as inland bays.

As a matter of fact, the Special master in East Bay, he found that the line E that you saw on Mr. Claiborne’s map and the line B that all of the requirements of Article VII of the Convention.

But he said that it did not meet the semicircle test when you use his rigid water measure.

But the Master realized he was wrong so he found those lines and said to the court that you might take it more liberal few water bays and if you do these lines meet objectively those depths.

And we say that under the Convention in the prior ruling of this Court, (Inaudible) case that the Court should take and include the waters of the streams that attribute to the bay.

Now, this exhibit that the Government put which was (Inaudible) they entirely put the (Inaudible).

Oliver. P. Stockwell:

It doesn’t show all of the waters entering East Bay from South Pass.

It doesn’t show the waters in the bay from Southwest Pass or none of the Johnson buyer.

Of course, all of that makes a difference when you look at that B to see if you can find headlands or you can consider water area.

Now you have — the maps that are in the record, even the maps that the Court attach to its opinion shows of all realistic view of East Bay.

Now Mr. Armstrong gave considerable attention to this case.

He gave as all pertinent time and he worked and listened to all the evidence and on all of these points, these headland points, there was extensive evidence only.

There was — it located them with exploit testimony and we say that what the Government is attempting to do and Louisiana is not attempting to do, we are not trying to upset its finding in fact.

We say legally and he realized that was a legal question as whether or not he used the proper area bays and if you disagreed with him, he had fixed these lines.

Now, he did the same in Caillou Bay.

He said that he realize that in the including of this Court in prior briefs there were some question of whether it was admitted that these islands were not assimilated to the mainland.

But he said that if from the evidence in this case was produced before him, then he would say that Caillou Bay was a juridical bay that it met all of the tests and the rigid tests that he set down with reference to the assimilation of these islands to the headland.

Now, there’s a difference between assimilating islands for headland purposes and islands in a bay to be considered water area.

The fact that islands are in a bay might be assimilated to the mainland.

It doesn’t make them nevertheless an island for the purpose of water bay because in a bay it’s considered that that whole area is territory.

In other words, there’s no difference between the land and the water.

Now, the simulation of an island for headland is a question there whether this island is assimilated to the land.

Now, whether an island is an actual island in the bay, or whether you’d see that island is assimilated to the bay and then you could use it for water that’s not the test.

That test only applies when you use an island as a headland for the bay.

Now that’s what Mr. Claiborne was arguing.

Now, we say Your Honors that we feel that Louisiana has adequately proved all of these waters of being historical waters.

And I want to make it clear.

We’re not asking this Court to treat Louisiana’s fishery.

All we want is what the facts of this case in the law would give us.

We realize that this is an important case and a decision that this Court makes on these issues of historic bays and on other issues dealing with the convention are going to be precedence in these other cases and in international law and we say that the Court — we urge the Court to look at the case carefully and resist the effort of the United States in trying to restrict the territory of the United States.

Thank you gentlemen.

Warren E. Burger:

Thank you Mr. Stockwell.

The case is submitted.