United States v. Louisiana (Louisiana Boundary Case)

PETITIONER:United States
RESPONDENT:Louisiana
LOCATION:Bethlehem Steel Corp. High Pier

DOCKET NO.: 9 ORIG (1)
DECIDED BY: Warren Court (1967-1969)
LOWER COURT:

CITATION: 394 US 11 (1969)
ARGUED: Oct 14, 1968 / Oct 15, 1968
DECIDED: Mar 03, 1969

Facts of the case

Question

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

Audio Transcription for Oral Argument – October 15, 1968 in United States v. Louisiana (Louisiana Boundary Case)

Audio Transcription for United States v. Louisiana (Louisiana Boundary Case) – October 14, 1968 in United States v. Louisiana (Louisiana Boundary Case)

Earl Warren:

Number 9, original, United States of America, plaintiff, versus the State of Louisiana.

Mr. Sachse, you are arguing first, aren’t you–

Victor A. Sachse:

Yes.

Earl Warren:

In the matter?

Very well.

Victor A. Sachse:

I’m Victor Sachse, Your Honor.

May it please the Court.

In 1960, as Your Honors know, in the– in an earlier stage of this same case, Your Honors held that the Submerged Lands Act of 1953 confirmed or put claim to Louisiana, Mississippi, and Alabama three miles from their cost lines while put– claiming three leagues for Texas and Florida.

In your decree, as in the Submerged Lands Act itself, the “coast line” is defined as meaning the ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters.

This Court retained jurisdiction.

Some few modifications were made in December 1965 by the United States but the coast line, although it long ago is designated and defined by agencies of the federal government directed by Congress to do that very thing and although it was long ago accepted and approved by the State of Louisiana, has not been approved by the Attorney General of the United States.

So, last September, we filed a motion to have the Court recognize it.

In January, the Attorney General responded, opposed recognition of this line.

Instead, asked for the recognition of the line according to his interpretation of the Geneva Convention, the convention on the territory of seas and contiguous zones.

The line that you refer to is the coastguard lines.

Victor A. Sachse:

We don’t refer to it as the coastguard lines because it was marked so long before the coastguard had anything to do with it.

We refer to it as the inland waterline, but I’m sure we’re talking to the same thing, Justice Harlan.

You use that as a casual phrase to describe what you’re talking about.

Victor A. Sachse:

Well, we use it and we refer to it as the inland waterline because the Congress directed, in1895, the Secretary of the Treasury to mark, to designate, and define by suitable bearings or ranges with lighthouses, light vessels, buoys, or coast objects, their lines dividing the high seas from rivers, harbors, and inland waters.

And, “inland waters” is the basis of this issue as we have it.

It is the basis of the statute.

It is the point of argument between ourselves and the Solicitor General.

I want to say that the phase of the argument which I will attempt to cover relates to the inland waterline.

In January of this year, the Solic– the Attorney General, through the Solicitor, claimed a different line based on the Geneva Convention.

Louisiana started to leave the issue right there, but we concluded that we found the– that line wrong also and that incorrect interpretations of the Geneva Convention had been used, as we understand it.

So, we filed in May an– a motion for an ultimate line.

Mr. JP Miller of New Orleans will speak to the Court with respect to the lines relating to the Geneva Convention and I will not.

There is no dispute, Your Honors, as to this inland waterline as designated and defined by agencies of the federal government pursuant to the 1895 Act.

Do you mean there’s no dispute as to where it is?

Victor A. Sachse:

Correct, sir.

Victor A. Sachse:

There is not dis– no factual dispute about its existence and, therefore, argu–

Existence or location.

Victor A. Sachse:

That is right and, therefore, the argument concerning it need not take as much time as the argument about any line under the Geneva Convention which would necessarily involve a great many disputes about fact.

I call Your Honors’ attention to a statement from a brief filed on behalf of the government in the 1956 stage of this case, in which it was said to the Court that Louisiana shore, and I draw a distinction between shore and coast as we go along in, the United States said that Louisiana Shore has a contour so nearly leveled that even minor wind variations, and Your Honors know that we have hurricanes of unbelievably severe power, can cause various substantial differences in a point to which the tide retreats, says the Government.

The shoreline is not a stable one and that’s quite true and quite an understatement but, they added, is subject through most of its length to rapid and substantial changes of islands may be moved as many as four miles.

A judicial inquiry for the precise location of the entire shoreline might be stretched to require many years for completion, so said the government in 1956.

Although such a consideration ought not to be necessary, and it is not really, in our opinion, although the inland waterline was designated and defined long ago, has been marked on public charters published to the world and not challenged and, in our opinion, ought to be understood by everyone to be the outer limit of inland waters as used by this Court, as used by the Congress, a great part of the time, allotted to Louisiana and has been assigned to my friend, Mr. Miller, because of a difficulty in discussing factual distinctions with respect to any sort of the Geneva line.

Abe Fortas:

For what purpose was that line established?

Victor A. Sachse:

The 1895 line was established originally, Justice Harlan, as we’ve tried to outline in our brief, because the Congress made a deliberate decision in 1885 that it would prescribe different rules for the inland waters of the United States than for the territorial sea.

And, it became necessary then to find out where this is, where this was then.

In– Your Honors know, of course, of the Delaware involving the channels, getting its channel to the Harbor of New York.

After the 1885 Act was passed, before the 1895 Act was passed, a collision occurred.

And, this Court in the case of the Delaware had to consider whether international rules or inland rules were to be applied to the case.

Your Honors’ predecessors said then that the 1895 Act had not drawn– 1885 Act had not drawn any line, and to quote from the Court, “nor could any general legislation do so.”

But, the Court added, the Congress by the Act of 1895, passed since the occurrence which caused the case to be before the Court had arisen, had directed the Secretary of the Treasury to designated and defined the line and he had done so, and this Court decided that the inland rules marked– declared by Congress applied in the inland waters designated and defined by the Secretary of the Treasury as fully as if New York Harbor itself were involved.

Now–

Abe Fortas:

Perhaps that’s the issue, that is to say, as I understand you and as I understand the fact, that line was drawn for purposes of determining which navigational rules would apply.

Victor A. Sachse:

That is not to be disputed, but from that or with that flows, in our opinion, the rights of territory, the rights of sovereignty because without the right of sovereignty the United States would not have the right to legally declare that inland rules of navigation apply to foreign vessels within this line.

I cite you to Collins, in his work on the subject in 1949.

Now, Louisiana knows that whether you consider this as the coastline of the United States for all references, it was within the meaning of Congress the coastline where the Submerged Lands Act was passed, and I used the verb I have chosen because it was presented to Congress by a spokesman from Louisiana much as we’re presenting it to you on this year today in 1949 when earlier legislation was before the Congress and before the Senate.

In respect to modifying the rules of the first California case, the Bill is then pending, referred to “shore.”

And, Louisiana spokesman stood before that committee and said that “shore” was the wrong word to use.

“Coast” was the right word to use and the reason “coast” should be used was because not only was that a part of our act of admission, not only was it a part of our constitution but, more closely to the point, Congress itself had used the word “coast” in the 1895 Act in undertaking to say where the inland waters are.

And, our spokesman then, as I now, call that Act to the attention of Congress, called the Delaware to the attention of Congress and, from that time on, the legislation pending used the word “coast,” “coastline,” and not “shores.”

There was an attempt, while the Submerged Lands Act was before Congress, by certain senators who opposed the Act entirely.

There was an attempt by the then-Attorney General of the United States to have the Congress accept the idea of a shoreline instead of a coastline, but this was rejected and the idea of the coastline was used.

Now, I pass to another phase.

Immediately following the Act of 1895, the Secretary of the Treasury began to mark this line to designate and define the line between inland waters and the high seas.

As directed by Congress, he used “coast objects,” which means to us “coastline.”

As directed by Congress, he used “light vessels and buoys,” which means to us that Congress knew then, as it had known in all of its earlier Acts, that at least the part of the United States had its coastline in the water, and so it has been ever since.

Victor A. Sachse:

The government says in its current briefs that not until 1937 were there any indication by the government that this line meant something different, that it didn’t actually divide inland waters from the high seas, that, after that time, they began to put a different legend on their charts or in their publications.

Mr. Shalowitz for the Department of Commerce says the change occurred in 1948.

Whichever date you take, the fact is that, by that time, we were in litigation and, by that time, the government had changed its position of not claiming any waters or any lands beneath submerged waters out from the shores of the states and, by that time, you were heading towards your first California decision.

And, I submit– we submit that change is made by the government in its treatment of its own publications after the case was in litigation ought not to bear much weight with the Court.

We point to the fact that, in the government’s brief in19– they refer to the fact that the coastguard commandant who, by that time, was the officer who then had the duty formerly possessed by the Secretary of Treasury, by the Secretary of Commerce and Labor, by the Secretary of Commerce.

Now, the commandant of the coastguard has it.

And, when he finished marking on the charts, not designating and defining the lights and the vessels and the coast markings but actually physically putting a line on the chart, he did make a statement, in which, he said he was doing this for navigation and he was not undertaking to set the boundaries of the United States or of the States or of the jurisdiction of either.

We don’t find fault with that statement because, at that time, it had not been determined whether there would be three leagues for the states or three miles for the state or some for one and some for another.

And, the commandant may have been trying to save that point but, whatever his intention was, he had to conclude as the Congress directed him to conclude by saying that the inland rules enacted by Congress related to the waters landwards of this line and the international rules of the high seas related to waters seaward of the line.

I take one moment to point something that Mr. Miller will explain to you more carefully.

This heavy green line is the line marked by the agencies of the federal government which Louisiana accepted in 1954.

This rather lighter line, dotted line, is the hundred-thousandth line of the continental shelf and, for a long time, was thought to be the edge of the outer continental shelf.

All of the area in between is area that is exclusive to the federal government.

Only this area is in issue.

The red line is the line which the government contends is the coastline and which so nearly follows the Louisiana shore.

I come now in some haste because of the limited time allotted here.

William J. Brennan, Jr.:

May I just ask, Mr. Sachse, in this argument, I gather that line the commandant of the coastguard could change tomorrow, couldn’t he?

Victor A. Sachse:

You mean the commandant could change this line?

William J. Brennan, Jr.:

Yes.

Victor A. Sachse:

This is not our position, Justice Brennan, because–

William J. Brennan, Jr.:

No, I ask may– does he have power to change it?

Victor A. Sachse:

We think that if we are correct that this is now declared by Congress through its action to be the coastline of Louisiana, then no one has the right to change it for any purpose but, certainly, no one has the right to change it for the purposes of the Submerged Lands Act.

William J. Brennan, Jr.:

You mean, in any event, that line is frozen as of the time of the– for the–

Victor A. Sachse:

For the purposes of the Submerged Lands Act.

I’ll not stand before the Court and say that they are not mobile boundaries on the sea that as land moves, as land builds out by the Mississippi, as land recedes in other portions of our shore that adjustments will not have to be made some time.

But, so far as the Submerged Lands Act is concerned, the Congress had said, first, by one Act divided into two: Submerged Lands Act and Outer Continental Shelf Lands Act in pursuance of the Truman Doctrine of 1945, nobody but the United States is going to have any of the minerals on mineral resources from this submerged lands on our continental shelf.

Now, we will divide that between the federal government and the state governments.

And, they did it in the fashion, Your Honors know, of saying either three miles or three leagues as can be shown.

I must take a minute or two on the California case.

I cannot ignore the fact that, in this second California case, when the lawyer stood before this Court, and you did not have the benefit, Justice Harlan, of any such light as this, and Justice Brennan and Justice Goldberg asked Mr. Cox whether California or the United States had any argument to be based upon the inland waterline.

Victor A. Sachse:

Mr. Cox said no and California didn’t dispute it.

So far as we can find from the briefs, so far as we can find from the report of the decision by this Court, there was no mention of the Delaware case.

There was no mention at all of that, yet that is the case that we think is most important of all.

Your Honors said, through you, Justice Harlan, that when the Submerged Lands Act was passed there was no definition of inland waters because the managers expected that earlier decisions and earlier Acts of Congress would supply that definition, and it was only because of the lack of the section of a definition that you turn to the Geneva Convention.

And, I will close with this.

If it be said in argument as it had been said in briefs that all states must be treated alike, Your Honors know that is not correct.

Your Honors have had the three leagues and three-mile issue for you before, but to bring it home precisely to this point.

When this legislation was pending before Congress there was a report by the Congress which we’ve cited, No. 2515, which deals precisely with the thing I’m now talking about.

It said that Congress, not some representative, not just the Senate, and no matter how important, but the Congress.

There is a startling difference between the shore and coast of Louisiana and Florida, on the one hand, and that of Texas and California, on the other.

To say that these contrasting coastal areas should be treated exactly alike, with reference to the definition of inland waters, would ignore geographical factors that are wholly different.

We respectfully point out that however these resources are used, whether they come through Louisiana and the other literal states or whether they come through the federal government, only Americans can have them but it would be a tragedy, we think, to lead any foreign nation to be believed that these shallow waters where ocean-going vessels cannot travel, that these waters between the passes of the Mississippi River are international waters of the high seas, Mr. Miller will take for Louisiana.

Earl Warren:

Mr. Miller.

Jp Miller:

May it please the Court.

In addition to our motion which litigant filed asserting the inland waterline as a coastline, we filed an alternative motion asserting an alternative coastline under the Geneva Convention.

If the inland waterline is adopted, of course the alternative motion would become moot.

For the convenience of the Court, we have filed these folders which we hope will assist you in following us along the coast.

Within the time allotted, it will not be possible to cover every segment of this coastline and our failure to do so should not be considered as an advantage.

As Mr. Sachse pointed out, in the California case this Court adopted the Geneva Convention for the Submerged Lands Act.

It did not, however, permit California to use the system of straight baselines because the Tort Court found that it would extend our traditional– our boundaries beyond their traditional limits.

Consequently, Louisiana has not used this system of straight baselines.

We do feel, however, that our coast for these islands and shallow waters is an ideal place for that system to be used.

As a result of not using this system, those– we and the government have had considerable difficulty in feeding our coast into the remaining sections of the Geneva Convention, and we have disagreed completely over the proper interpretation of that Act.

Louisiana feels that the Convention should be interpreted literally, and I have to stop, Your Honor, I have a red light.

The Honorable Court is now adjourned until tomorrow at 10:00.