Utah v. United States – Oral Argument – December 17, 1974

Media for Utah v. United States

Audio Transcription for Opinion Announcement – February 19, 1975 in Utah v. United States

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Warren E. Burger:

We hear arguments next in number 31 Original, State of Utah against the United States.

Mr. Boggs, you may proceed whenever you’re ready.

Danny Julian Boggs:

Mr. Chief Justice and may it please the Court.

This original case is here on exceptions to the Report of the Special Master in reliction phase of the continuing litigation between Utah and the United States, over the ownership of land and the vicinity of the Great Salt Lake.

This litigation was authorized by the Great Salt Lake lands Act of 1965. Pursuant to that Act, the United States in 1967 quitclaim to Utah all of its interest other than mineral rights within the surveyed meander line of the Great Salt Lake, that line generally or not invariably, runs on land that has been above the Lake level for 50 years or more.

Utah was to pay for that land that the United States stated that it owned or to litigate the United States title in an original action in this court, Utah chose to litigate.

In the first stage of this litigation, this court held that the Great Salt Lake was inevitable and that Utah does acquired title to its bed at statehood in 1896.

This settled the question of ownership of the land that was still underwater at the time of the deed in 1967.

That area is the inner lighter shaded area on defendants exhibit two, the map shown in the back of the Special Master’s report.

We are today concerned essentially with the area between the level of the Lake at statehood and the level of the Lake as of the date of the quitclaim deed.

That land is the middle darker band shown —

Warren E. Burger:

Let’s find that map, we got several exhibits here.

Danny Julian Boggs:

The defendant’s exhibit two is about the exhibit from the back of the set of exhibits.

Yes sir.

Mr. Justice Stewart that is the map.

We are today discussing essentially the title to approximately, the middle, darker colored band on exhibit two.

Harry A. Blackmun:

Mr. Boggs, are the parties’ now in agreement as to the two errors that were mentioned in the Special Master’s report, the state of that level —

Danny Julian Boggs:

The 4200.2 against 4200.8 in the 396,000 (Voice Overlap)

Harry A. Blackmun:

That’s correct.

Danny Julian Boggs:

25,000.

Yes sir, I believe that we both in our briefs stated that we were in agreement with the facts as we each stated them.

Harry A. Blackmun:

So that’s out of the case at this point.

Danny Julian Boggs:

Yes sir.

William H. Rehnquist:

Mr. Boggs, you say that we’re discussing the inner darker and (Voice Overlap)

Danny Julian Boggs:

The middle.

William H. Rehnquist:

That’s assuming that all of the circumference of the Lake were claimed by the United States though (Voice Overlap).

Danny Julian Boggs:

Your Honor, it’s correct that we’re discussing specifically those areas in which the United States is the upland owner across that middle land.

The United States contends that by operation of the doctrine of reliction as consistently recognized by this court, the Lake bed which Utah owned receded as the Lake receded and to the extent that it was the upland owner, the property interest of the United States extended down to the new water level at the date of the quitclaim deed.

Utah on the other hand, contends that the measure of what it received in 1896 was absolutely fixed as of that date and has not altered by any change in the waters of the Lake.

The basic question is thus, whether the boundary between the Lake bed, undisputably owned by Utah, and the upland undisputably owned by the United States is to have been measured in 1967 with relation to the actual water level in 1967 because the boundary is an ambulatory one, or whether that boundary should have been measured with respect to where the water stood at statehood or even earlier in the 19th century.

Danny Julian Boggs:

I would note that once it is decided as which date is the date on which the line is to be fixed.

An exact line must be determined which may or may not require further litigation.

Thus, the outer lighter colored band on the map would be the land between the Lake at statehood and the surveyed meander line, for as Utah contends that at statehood, it gained everything out to the meander line, the United States would contend that even if the date was fixed at statehood, that was fixed at about the Lake level of that date.

That outer band is not in consideration in the litigation today.

Today as I said, we are concerned with the application of the Doctrine of Reliction to the circumstances of the movements of the water of the Great Salt Lake.

To first state that doctrine, I would give you what this Court said in Bonelli last term in which the Special Master quoted that the general law of reliction is that the grantee of land, bounded by a body of navigable water acquires a right to any gradual accretion formed along that shore.

And in light of that, I would look at the physical facts of the movement along the Lake which are undisputed.

The exhibits on the Report of the Special Master, demonstrate that the waters of the Great Salt Lake do rise and fall, and as they do, considerable areas of shore are exposed or covered.

Now, one major component of this movement is the change caused by the passing of the seasons which can be seen on any of the exhibits that the Master has inserted, showing the levels of the Lake.

Every winter and spring, there is a rise as precipitation on snow melt increase and every summer and fall, there is a decline because of less moisture and more evaporation.

This seasonal change of course, the parties’ all agree, does not change the boundary, not because it may be so rapid or large as to be visible or perceptible but simply because it is a seasonal change as shown by cases that we’ve sighted at pages 15 and 16 of our brief in Utah at pages 67 and 68 of their brief.

In just the same way, an observer or a gauge on a river would note the rise of flood water seasonally or on an ocean would note extraordinary tides at certain astronomical seasons.

These two, would not cause a change in the legal boundary.

Another component of the change is caused by the temporary factors that may come and go in the course of a day or a few days.

These are shown on Exhibit P-16 which is not reproduced in the Master’s Report but it’s simply a gauge, a continuous recording of the movements of the Lake over the period of a month.

And that exhibit and the testimony show that these changes are almost exclusively caused by a wind or atmospheric disturbance which pushes down or pushes up the Lake in one end, and then by a so called seiche effect, the lake oscillates back and forth, just as if you slash a bath tub, it will slash back and forth with diminishing vigor, rising and falling at the ends until it begins to stabilize.

But this too is a temporary occurrence.

But finally and most profoundly, the water level is changed by the effects of climate over many years.

A land that is exposed or covered may stay that way for decades.

For example, when the Lake recently rose above 4200 and one feet above sea level, it covered the land that had been dry since before 1930.

And when the lake went down in the early 1960s, the land was exposed which had never been uncovered in historical time.

We submit that it is these long term effects only which vary the legal boundary.

These changes are exactly analogous to the changes on wandering rivers such as the Missouri or Mississippi with which this court has many times dealt.

There, a river may move gradually in one direction for some years and then reverse itself and return to its previous location or even beyond, but of course during that movement, the river itself may be rising and falling, covering and uncovering land due to floods and droughts in temporary phenomenon.

And yet in each of these cases, the doctrine of reliction has always been applied.

I would note that a similar contention to Utah as here was made in the case of the Missouri River and the Court’s reply which is cited on page 17 of our brief stating that it is contended however that the Doctrine of Accretion has no application the Missouri River on account of the rapid and great changes constantly going on, but our conclusions are that not withstanding the rapidity of these changes, the Law of Accretion controls.

William H. Rehnquist:

Well, it wasn’t what the Court was addressing itself to, the contention to parties that along the Missouri River, great big pieces of the bank would sluff off.

And you could physically see them go.

Danny Julian Boggs:

Well, Your Honor, I think that that was — that was certainly the aspect that was before them and the Court in dealing with that said that you have to if the falling off of the bank in that instance is a result of essentially a seasonal flood that that itself does not change the ordinary rule that despite the fact that the river may move rapidly.

If taking the situation as a whole, you can say that there’s been a gradual or imperceptible movement when you say here it is and so many years later, here it is, that reliction will still apply.

Danny Julian Boggs:

I would turn now to the —

Potter Stewart:

Before you do Mr. Boggs and may be you have answered this — these concepts of accretion and reliction and on the other hand the revulsion are well known of course to the law of rivers where the river is a boundary or either state boundary or boundary of somebody’s property in prior property disputes.

Are there any cases until this one involving Lakes?

Danny Julian Boggs:

I believe of the Supreme Court cases that this may be the only one, there are certainly numerous state court cases which refer the Lakes and of course the same rules have been applied on an ocean which is yet a third situation such as Hughes versus Washington which this Court decided some six or seven years ago.

The statement has been continually made through all of these cases that the law as to accretion and as to reliction is essentially the same.

Potter Stewart:

Yes.

But hasn’t that always been (Voice Overlap)

Danny Julian Boggs:

Well, reliction is normally what’s being talked of with regard to a lake that is, the water rises and falls.

Accretion generally relates to new land being deposited by the movement of a river on an ocean or conceivably even a lake if you had a heavily salted lake.

Potter Stewart:

Bonelli case involved —

Danny Julian Boggs:

That was Bonelli involved the Colorado River which (Voice Overlap).

Potter Stewart:

Are there any federal cases involving a lake?

Any Great Lake cases or —

Danny Julian Boggs:

I couldn’t say. I know that certainly that it’s my impression that the dunes on the Great Lake are built up (Voice Overlap).

Potter Stewart:

I remember against Washington involving the Pacific Ocean.

Danny Julian Boggs:

I can’t call a specific case to your attention at the moment.

William H. Rehnquist:

And really, you’re typical regimen in accretion case in a river is quite different from what the evidence shows here about Great Salt Lake.

Isn’t it where you have erosion on one side of a bank and deposit on the opposite side until finally the thing becomes more and more noticeable and you ultimately get a cut off of an (Inaudible).

Danny Julian Boggs:

Well, you may or may not get that cut off.

There are many cases which we cite in our brief where the river moves one way and then it simply moves back the other way so that you get that kind of a movement which we feel is quiet analogous to what has happened here.

William H. Rehnquist:

One case that has applied the Doctrine of Reliction to a lake I guess is the decision of the Supreme Court of Utah in the Hardy case, applying at the Great Salt Lake.

They said that it wasn’t applicable.

Danny Julian Boggs:

Right.

They stated that — when you look at Utah cases, this was brief fairly, thoroughly before the Special Master and then because of this courts decision in Bonelli, the federal common law controlled — we really not considered it extensively since then, but my recollection of the Utah cases before Hardy which include cases on lakes such as Utah Lake which is also a very flat lake.

Indicates that they seem — on Utah Lake, it may have some application and the earlier Utah cases would indicate that there may have been application even on the Great Salt Lake.

William H. Rehnquist:

Well you said that because of Bonelli, you haven’t look further into this Hardy case but I would have got the source of federal common law if that be what governs — is presumably be the decisions of other courts.

It may have addressed the same problem.

Here, you have a finding by the Special Master that the Great Salt Lake is unique and the conclusion by the state court having jurisdiction over that lake, that because of that fact, reliction doesn’t apply.

I would think in formulation of federal common law, we would play a great deal of attention to that Hardy case.

Danny Julian Boggs:

Well Your Honor, we would submit and I believe in our brief before the Special Master argued that even at that time we said, if you want to consider Hardy that the “uniqueness” which is really the underlying supposition of the Utah argument is based upon this temporary and seasonal fluctuations.

Danny Julian Boggs:

So, this is where we get into the whole mathematical controversy over how gradual or perceptible it has been but that, simply because during the course of a seasonal rise and fall or during the course of a storm, the lake moves rapidly in one direction or another that this is not a unique factor.

This is not something that is not seen on rivers and Mr. Justice Stewart mentioned the Great Lake.

So certainly, the Great Lakes even have the same kind of Seiche effect, where the wind piles up the water at one end and then it oscillates back and forth.

So, we recognize that that case exist, we believe that it suffers from the same flaws as the doctrine as a whole.

Byron R. White:

So, you think the reliction — it would be called reliction if suddenly, all the waters that runs in to the — all the streams that run into the Great Salt Lake were diverted?

Danny Julian Boggs:

Well Your Honor, that would —

Byron R. White:

And then, the lake just hasn’t any water running into it and it just dries up.

Is that reliction?

Danny Julian Boggs:

That would either be several things that would apply there.

One is that in certain of the case is the question of whether a change has been natural or not, has been held to be significant.

In Bonelli, the court held that it was not, but certainly, if the — particularly, I think there is a line or two in Bonelli that mentions that if the drying up of the lake by diverting the tributaries was caused by one of the parties with that specific intention that that would certainly be a factor as to whether or not it should apply.

Byron R. White:

Think about it now — would it be a reliction or not?

Danny Julian Boggs:

Well, we would have to look at exactly what the circumstances are.

Certainly, there are various cases that hold when you simply drain a lake for the purpose of doing something else with it and perhaps you’re going to turn it back that that is not a reliction, that’s long-year mining.

And certainly, as I said, if the United States were to turn it off for the purpose of gaining that water, it would not be a reliction.

If as perhaps people thought in 1963, the lake simply dried up completely, I think we would have to state that that was a reliction.

Certainly, the Great Salt Lake has been drying up for some 10,000 years and if we were not to say that reliction applied, I don’t know why Utah should not claim it all the way back to ancient Lake Bonneville if the boundary is not an ambulatory one but a fixed one —

Byron R. White:

Utah has been a (Inaudible)

Danny Julian Boggs:

Well, as Utah notes however, they claim the water back before where it was in 1896 back to the meander line which was the first time that man started drawing those lines.

I would turn now to the specific components required for the operation of the Doctrine of Reliction and to examine how they apply to the facts of the Great Salt Lake.

The key element in the past perhaps before Bonelli, has certainly been that the movement in the waters edge is not sudden or violent but gradual.

This is stated in various holdings of this Court such as Philadelphia Company versus Stimpson, stating that the title would be fixed and would remain the same when there is a change that is sudden or violent or visible in a word an evulsion.

Now here, all parties agree that no evulsion has taken place and as we have noted in our brief, there are normally — when you see the water at one place today and another place 20 years later, there is a presumption, that it has moved by a reliction or an accretion.

William H. Rehnquist:

I realize that the presumption applies in the cases of accretion but do the cases support you in saying that there’s the same sort of presumption where you are arguing for reliction?

Danny Julian Boggs:

The case in that sense if there — the question is, is there a specific lake case that would hold that?

I don’t believe so.

The doctrines have generally been spoken of together and have not been differentiated in that way.

Now, the brief discussed at some length the question of just what movement should be measured and whether that movement is imperceptible and I’m prepared to discuss that further if you wish. But we would note that in Bonelli, this Court casts considerable doubt upon the necessity even for literal imperceptibility.

The court in Bonelli noted the interest and the policies behind reliction saying, that a riparian owner has an expectancy and an interest in remaining riparian to his land and that, since he might lose the use of his land when the water rises, so he should gain the land that would be exposed when the water falls.

And in Bonelli, the court found those policies so strong that it held that a riparian owner was entitled to remain riparian even though the land, the water actually moved perceptibly.

Danny Julian Boggs:

Thus, the Master statement that he could not find the movements of the lake to be imperceptible, does not necessarily defeat the application of the Doctrine of Reliction after Bonelli.

In any event, as we essentially — the same answer we would give to the Hardy salt question.

The examples given by the Master at pages 17 to 20 of his report about these great fluctuations, each example that he speaks of are essentially the seasonal and daily changes that we spoke of.

Now, we concede that during a seasonal rise or during a storm, you can look at the water’s edge and you may be able to see it move.

But certainly, in the course of a Missouri River flood or a Bay of Fundy spring tide, the effect on the shore lands would be equally visible and perhaps even more dramatic than these changes on the Great Salt Lake.

Now, the second factor on which the master relied was whether the changes in the lake were reasonably permanent.

A close reading of his conclusions of law in fact, I think indicates that this was the bedrock of his decision because he first stated that the federal common law of reliction does generally apply and then stated that the question of ownership of the lands in question, “depends on whether the exposure of the land referred to, either by a perceptible or a gradual and imperceptible process,” thus, perhaps taking account of this change in Bonelli.

“Constituted a reasonably permanent or stable addition to the riparian land.

And this foundation of the Master’s Report, we contend is simply not the law.

Certainly, none of this court’s cases over the past century and more have indicated that there can be no reliction or accretion if the body of water under consideration may reverse its course.

In fact, many of those cases concerned body of water that were known for wandering back and forth such as the Mississippi and Missouri Rivers.

We sighted also a number of state cases concerning these rivers —

Byron R. White:

And what happens when the — if you’re right, when the bottom of the Salt Lake becomes uncovered, there’s a reliction — then what happens when its covered for another 20 years?

Danny Julian Boggs:

Well, just the same way when the river moves when the lake goes back up as it has in the present time.

Utah is the owner of the Lake bed just as the owner of the river bed — it’s ownership (Voice Overlap).

Byron R. White:

Well then you pay them back, what would’ve paid you in this case?

Danny Julian Boggs:

Well Your Honor, it’s going to cover that in the section on equities toward the end but I’ll handle it right now.

Certainly, I think that at the bottom.

Byron R. White:

You’re asking them to pay you for (Voice Overlap) so you owned it.

Danny Julian Boggs:

At the bottom, the real difficult (Voice Overlap).

Byron R. White:

when it’s not covered.

Danny Julian Boggs:

At the bottom, the real difficult that the United States had over this case, I think is not a legal one.

It’s the equitable position that we’re asking them to pay for land that’s now underwater.

But that’s simply —

Byron R. White:

It may be underwater for quite a while for all you know.

Danny Julian Boggs:

We don’t know, that’s exactly the point.

We passed a deed in 1967.

It’s just exactly the same as if I’m a river bed owner, a river shore owner and I’m worried about the river just as Utah was worried about the Lake and I buy the land on the other side of the river from the other owner and contract to pay him for it.

And in the passage of time, the river starts moving over there and lo and behold —

Byron R. White:

That’s alright but you have another condition in your deed.

Byron R. White:

We’ll have to decide out who — we have to decide who owns it first.

Danny Julian Boggs:

That’s correct.

But I’m saying —

Byron R. White:

That’s a big difference.

Danny Julian Boggs:

But Your Honor, the question of who owns it — we submit cannot turn on what — on the specific of what’s happened to the Lake since then —

Byron R. White:

Well, it is but you’re relying on reliction.

Danny Julian Boggs:

We’re relying on reliction as to the question of what was passed by that deed in —

Byron R. White:

If that relicted more or you would be relying more.

Danny Julian Boggs:

No Your Honor.

If it would have relicted more, that’s exactly the opposite — that’s exactly the point.

If the Lake had gone further down, we could not have asked Utah to pay for that land because they would have already owned it in 1967 as a result of this Courts decision on the navigability issue.

And that’s what — the water went up and you might say that Utah lost its gamble.

They’re being asked to pay for land that’s now under water.

If the water had gone down, the United States would have lost the gamble and Utah (Voice Overlap).

Well Utah — now, another point on the equity is that Utah has the opportunity of course simply to renounce the Act, not pay for it and then they’ll own it under the doctrine of reliction.

What they’ve contending for here is sort of a both ways test when the water is up.

We feel that they want reliction to apply and when the water is down, they don’t.

Another example of this Your Honor, they contend throughout that they have great interest in the lands on the edge, marsh lands and this sort of thing.

And yet, under their contention, when the water goes up whether above statehood or above the meander line.

We have this controversy that the one it goes above the 1896 levels — then Utah does not own those edge lands.

Utah’s boundary by their contention is exactly fixed and there they are left with an area in the middle of the lake in the upland owners such as the United States and private parties, owned all of those edge lands.

And that’s the reason that we believe that here just as in — as in all of the other cases that have applied reliction that that is the basis for having an ambulatory boundary rather than a fixed boundary.

We recognize that there are certain problems that an ambulatory boundary causes here, the court noted similar problems in Louisiana versus Texas with a three-mile limit.

But we would submit and I think this is the basis of all of our arguments that the fixed boundary causes even more problems for periods of decades and even longer, the Utah who is supposed to control the lake would find that large areas of the lake were out of its control and perhaps for equal periods or riparian owner who has an interest in remaining riparian would find the lake to be miles from him and it would remain there for 30 years.

This is really the difference between the problems that are caused by the seasonal fluctuations, and the fact that the long run fluctuations of the lake are far greater that you do have the seasonal fluctuation but it will be over here one year and it will stay there.

And then 20 or 30 years later before it may ever come back or it may never come back.

If there are no other questions, I would —

Byron R. White:

Yes, I have a question.

Danny Julian Boggs:

Yes, certainly.

Harry A. Blackmun:

Utah on its brief on page 96, suggested a change in the first paragraph of the decree.

Harry A. Blackmun:

Your reply brief, came in just a day or two ago, but I haven’t read it thoroughly but I don’t believe it answers that suggestion.

Do you have any comment to make about that — ?

Danny Julian Boggs:

Your Honor, it’s my understanding from the other people concerned with this other litigation that we would not be greatly distressed with theirs.

We feel that our suggestion is in accordance with the previous decrees.

Apparently, since the brief of Utah was submitted that the Tenth Circuit decision has come in and I believe that it was essentially adverse to the United States or at least made no use of our argument concerning the words such as, we have no strong feelings or direction on that.

Harry A. Blackmun:

Thank you.

Byron R. White:

Well except for these differences that divide you, would it be feasible for you to agree as to on a decree?

Well Your Honor, the problem —

Byron R. White:

If some of their suggestions you abide, that we wouldn’t have to decide which one of you –.

If you’re talking about this single point which is whether or not we say such as — there are two totally technical points that we agree on and that was the first question asked I believe.

This point on the “such as”, I believe that it’s possible to work out.

Byron R. White:

Can’t you do that?

We’ll certainly try.

I have reserved the balance of my time.

Warren E. Burger:

Mr. Dewsnup.

Richard L. Dewsnup:

Mr. Chief Justice and may it please the Court.

Warren E. Burger:

Before you proceed, let me suggest that if you gentlemen find some area of common ground, literally and figuratively, you’ll let us know promptly, won’t you?

Richard L. Dewsnup:

We will.

I would like a little clear picture as to exactly what we might be expected to do in that regard so far as making some interim report back to the court.

I’m not too clear on that.

Warren E. Burger:

At least speaking for myself.

I’m not too clear either.

But if you two gentlemen can’t be clear on it, then no one can.

Richard L. Dewsnup:

Well, let me spend just one second at the beginning with respect to the words “such as”.

Utah certainly doesn’t want to be technical with regard to a couple of words as we pointed out in our brief and incidentally, the Tenth Circuit case was decided and this court denied cert two or three weeks ago on that case.

But Amoco Oil Company is ready to drill, offshore drilling of the Great Salt Lake now and the army core of engineers has contended that Amoco cannot go ahead pursuant to the authority it has in the State of Utah because under Rivers and Harbors Act they have jurisdiction, they have to apply in that but go through the environmental study etcetera.

Well that hassle never was before the court before.

And the argument made in the Tenth Circuit was this court’s insertion by it’s own initiative of the word “such as” was in adjudication of the regulatory authority of the United States, applied to the Great Salt Lake as a navigable water of the United States.

Now, as our brief points out and I think that the brief is enough of a background and that is why we did not want a couple of innocent looking words to create all kinds of problem that the actual physical administration and management of the lake.

And so, as far as I am concerned on the words “such as” if the government does not insist on putting demand, we would like to have them out and if we can agree on that now, then we’ve agreed on all three changes suggested at the latter part of our brief of the event that the court looks upon Special Master decree as one that might be entered here.

Richard L. Dewsnup:

This case is rather unusual and that the parties really do not disagree on the legal principles of reliction as maybe stated and as they have developed a common law and as they appear to be reflected in the federal cases that have applied the doctrine and we really don’t defer with respect to the facts.

The real difference is which facts are relevant to this case and whether or not these facts would seem to satisfy the Doctrine of Reliction.

Now, the thing that seem to oppress the Special Master the most, and I think through his discussion, his findings, his conclusions that he mentions more than a dozen time the unique, unusual circumstances of the Great Salt Lake, this simply cause the Doctrine of Reliction not to fit.

And the reason for that as the Master points out is this briny residue of the Ancient Lake Bonneville, the Great Salt Lake is in the bottom — very flat based.

The shores are virtually horizontal.

It has no outlet as most lakes have some kind of tributaries flowing in, in some kind of outlet and they serve to be self regulated.

The Great Salt Lake isn’t — you put water in it and it’s like putting water in the glass. The only way it’s going to leave is by evaporation.

And because of the very flat shore lands, any water that comes in until it evaporates out, it causes the water to move out almost horizontally and then, as the water evaporates, it moves back in almost horizontally rather than a body of water would if it had reasonably steep shores.

And so, because of those very unusual characteristic as the Special Master continue to characterize and is unique, he just could not find on the evidence presented that there had been any gradual imperceptible or reasonably permanent process which had created new uplands as distinguished from the part of the bed of the lake was — there was subject to inundation from time to time.

Warren E. Burger:

Are these inlets — these streams coming in, all from the mountains?

Richard L. Dewsnup:

They are all from the mountains.

Some distance, removed when the streams get next to the lake for a period of miles or 10, 20, 30 or 40 miles, they might meander slowly across relatively flat terrain, even though the head waters would be in the mountainous regions of Wasatch Range.

Potter Stewart:

The petitioner has a video to deal with it, didn’t it?

Richard L. Dewsnup:

Yes, as Mr. Arnold of the United States geological survey explained at some length and I think it summarized to the extent of the brief.

The winds, the temperature or the salinity of the waters, the gradience of the shores, all of these things intermixed because the lake continuously fluctuate.

It’s virtually impossible to have a moment when the total inflow exactly equals total evaporation.

You just don’t get that moment in time.

And so, however gradually in volume, the lake is either going up or going down and that movement is greatly exaggerated by the relatively flat shore lands — the extremely flat shore land.

I would like to mention a few of these practical or analytical errors that we think and the Master thought that the government had fallen into and the analysis of its case.

When the government said that the only practical argument against the government’s case is if the lands of water covered now that just simply isn’t true.

For one thing, the government chooses to ignore the actual water movement.

Here’s a basic hydrograph which appears as the first attachment to the Master’s Report Exhibit P-4.

It shows the basic annual movements of the lake from 1850 to 1973 when the hearings were held.

And incidentally when the lake was first viewed in 1850 was the same elevation, almost exactly as it was in 1973, although the variations from year to year and month to month and over the long term are rather remarkable.

But in any event, the government ignores the actual water level or the actual water movement or rate of water movement and computes an average annual stage of the lake by computing the level or stage of the lake, one year as it would compare with the preceding year, which serves to remove the daily, weekly, monthly seasonal fluctuation.

Now, the parties agreed that daily, weekly seasonal fluctuation do not result and it changes boundaries by reliction.

But the government then goes to compute the rate of movement of the water by reference to this averages which has nothing at all to do with the actual rate of movement of the water.

And the government calculates that the water moves at a speed of one-and-a-half inches per hour on the average, all the way around the lake and 15 inches per hour in its most rapid rate of speed.

But that just simply isn’t so.

And the government would have to acknowledge that isn’t so as well because they base their calculation not on the water movement itself but upon assumed levels or stages of the lake.

Richard L. Dewsnup:

A second analytical error is the governments’ failure to consider in computing its average movement.

The Special Master made a special note of this and the pictures throughout the brief, the black and white pictures I think illustrate.

Generally, the lands are very, very leveled but where the mountains come out into the lake, there are variations in the gradient which would have a direct impact on the rate of movement of the water where the land is really flat.

The lake comes up, the water moves over that much more rapidly where a mountain comes down at 45 degree angle into the lake.

Another error in the governments’ calculation, it based its rapid imperceptible criteria and argument on the 350-mile contour line which is situated within the lands now in dispute.

But that 350-mile line is the surveyed meander line that the parties used as a basis for exchange in a quitclaim deed to illustrate that problem very briefly.

We’re talking about an inland lower elevation line that is substantially shorter than the surveyed meander line that might have a distance of approximately 350 miles.

Now, that mathematical calculation might not be terribly serious, the government contends that even if its off 50 miles in the estimate that the rate of movement of the water is still gradual and imperceptible if it can use its averaging technique to compute the rate of movement of the water.

And let me emphasize in this regard that Judge Fahey, Special Master Fahey was not overly impressed with the rapid actual movement of the water that will move perhaps several inches per second in the flattest area.

His conclusion was while that water movement does not change boundaries, when you’re talking about reliction and the change in boundaries by the doctrine of reliction, you simply cannot ignore the water movements for the purpose of telling where the water is and where it goes and whether or not the shorelands we are talking about have been exposed with some kind of reasonable permanence or some kind of stability so that if you’re going to cause changes in real estate titles you don’t have to do it everyday or every week.

And so, that was the emphasis that the Special Master placed on the water movement.

Warren E. Burger:

Well, that was partly because there were such sharp changes within even in a 24-hour period.

Richard L. Dewsnup:

Yes.

Warren E. Burger:

I noticed that if he makes the observation that on June 6, or the water level rose and fell ten times that the lake level for that day averaged a stable level.

But then, at the end of the day on June 5 to the beginning of June 6, the water dropped to more than two feet and the wind apparently comes for that.

Richard L. Dewsnup:

Well, not necessarily, I think that those calculations were based on some exhibits that we prepared and introduced which were not necessarily the wind tide days.

Mr. Arnold identified certain days as being definitely wind tides and those figures there were based on what appeared to be reasonably average days from the June 1967 hydrograph.

What the Special Master did, he noted the variations and the dramatic fluctuations over long term periods, intermediate periods and short terms periods and then said, well, this actual water movement does not necessarily result in a changed — does not changed by reliction.

Still, we cannot ignore these fluctuations, dramatic as they are and their impact on this flat shore lands in deciding whether or not the common law has evolved the doctrine that reapplied to the Great Salt Lake.

A plain and simple fact that the Master review is that we just don’t have another body of water, an Anglo-American jurisprudence like the Great Salt Lake.

William H. Rehnquist:

Well, I suppose the difference between May and October in one particular year could be a great deal difference than the difference between May 1960 and May 1970.

Richard L. Dewsnup:

Yes, that’s true.

I would like to make a couple of comments with respect to what we have called the government shooting boundary and the government has said in its reply brief that it is not a shooting boundary but I’m not able to tell how the government would calculate its boundary based on its averages of the doctrine of reliction and accretion developed.

As by small and imperceptible degrees, little by little, gradually either deposits would form and form fast land as in accretion where the water would gradually and imperceptibly change so that the stage in the body of water has changed.

And the annual fluctuations of the lake from its average high water to average high water in the following year would not expose this newly created land or newly exposed land and a new water mark, ordinary high water mark would form.

And then you have land formed either by accretion or reliction.

But the government seems to suggest that it would take the average annual readings of a particular year and having computed that average that that level would then be a sign for January 1 of the following calendar year and that would be the boundary separating the reliction land from the state owned bed of the lake.

Then, there are some suggestion that maybe if you take intermediate readings of periods shorter than a year, I’m holding up what is exhibit — plaintiff’s exhibit 13 which the Special Master did not attach to his report.

And maybe, I will not be able to illustrate this too well but each one of these about an inch and a half horizontal distant sections.

Warren E. Burger:

You have to hold that a little bit higher for us.

Richard L. Dewsnup:

Is a one year period of time.

Let the government see this.

If you take for example the year 1968, then this follows the water level growing to the period of 1968.

If you take an average water level for the year 1968, and use that for January 1, 1969, then the minute that you assess your contour line as the boundary of the water covered and the it’s got to remain water covered for practically the entire year of 1969 and in some cases, one, two, three or nearly four feet in vertical elevation which will need about 200,000 acres of the water covered bed of the lake would under the government’s view of the Doctrine of Reliction — it would be the reliction boundary line.

And you will see that if you follow these through from year to year, and every year when the lake is on the rise that it has been in recent years, the governments’ view of the Doctrine of Reliction each January 1, you’re going to be placing the reliction boundary line underneath the water, and it’s going to stay under the water for most of the year.

And that’s about as diametrically opposed to the common law concept of reliction as it could be.

Another practical aspect that isn’t of any great legal consequence is that these lands are no particular value to upland riparian owners.

It’s not the typical case where someone needs to pour about or needs access to the water for the typical riparian purposes.

We have included in our brief, the black and white pictures which show the lands in dispute in various places around the lake.

The colored pictures which are in Exhibit P-6 were taken when the water level had just about exactly inundated or covered the lands in dispute.

I’m sure that these pictures won’t convey much from this distance.

But if the court cares to look at Exhibit P-6 and note the shorelands, immediately upland from the lands that are in dispute, we would see the so called riparian uplands where the claimed riparian uplands that would be claiming the relicted lands in dispute or the lands in dispute that the government claims a reliction.

The only point here as you go through all of these pictures, you will see these flat, mud flats, bogging marsh lands that have no practical value except to the State of Utah in connection with the development of the mineral resources of the lake and other state programs on the lake.

And the typical case where there would be compelling needs to protect riparian or upland access to the lake or to confer “reliction lands” simply are not present in this case.

Potter Stewart:

May I ask about the Exhibit 6?

Richard L. Dewsnup:

Yes.

Potter Stewart:

I think much of the land in dispute is now under water?

Richard L. Dewsnup:

All of the land in dispute practically was under water at the time of the hearings.

Potter Stewart:

Well now, what are those pictures — those I think you said to us, show some that is not — some exposed lands in dispute.

Richard L. Dewsnup:

This exhibit has 22 black and white pictures which show the land now in dispute.

Potter Stewart:

Exposed lands?

Richard L. Dewsnup:

Yes.

Not all of the land but a good part of — these were taken in the late Fall of 1972 (Voice Overlap).

Potter Stewart:

And the hearing was when.

Richard L. Dewsnup:

February of 1973.

Potter Stewart:

And were they still exposed in 1973?

Richard L. Dewsnup:

No.

By February of 1973, the lands were within about one tenth of a foot of being fully covered and within a few weeks after the hearing, they were fully covered.

Potter Stewart:

Then looking at these we’re not looking at the situation as it was at the time of hearing?

Richard L. Dewsnup:

You will if you look at the colored pictures because they were taken three or four days before the hearing.

Richard L. Dewsnup:

If you look at the black and white pictures, they were taken six months earlier and the lake was a couple of feet lower at that time and did expose many of the lands in dispute.

William H. Rehnquist:

Was that difference, seasonal or long run?

Richard L. Dewsnup:

Well, it was a seasonal.

The lake is now climbing.

As a matter of fact, the lake as of the first of December was almost back to 4200.

It fell during the summer and as of December 1, it was 4199.35.

Potter Stewart:

And the consequence of that as to the lands in dispute being under water is more than ever around the world, is that right on December 1?

Richard L. Dewsnup:

I think so, yes.

It just shows that we’ve taken a depth for a while during the summer part of these lands were exposed.

They’re virtually all water covered now.

They certainly will be within another couple of months.

Again, this is the seasonal fluctuation.

One of the — moving on to another item and that is what I briefly alluded to before with regard to the stability of real estate titles, Special Master Fahey, put a good deal of emphasis on that.

The evidence showed that almost all of the lake bed in shorelands area had been leased by the State of Utah to American Oil Company and I’ve already indicated that there are processes to drill.

Now, whether oil and gas will be discovered there or not.

This illustrates a kind of problem if there had to be an accounting for the mineral ownership of the overlying land owners, the riparian owners, the United States and private parties will own down to the bed of the Great Salt Lake wherever that line might be.

If we had a boundary that was moving each day or each month or even each year, I still don’t know what the governments’ theory is as to how its boundary would move on a month to month basis or whether it is a January 1 to January 1.

But it would be almost an impossible prospect to try to calculate where your boundary was moving with respect to any underground oil pool by having a surface boundary running back and forth.

The State of Utah had control over mineral development there, the state might want to produce oil and gas only during the winter time when the water level was at the highest which would expand the oil pool and then not produce during the summer when the lake would withdraw.

I would like to note briefly that the government does have the burden of proof in this case even though it’s a defendant.

Utah made its proof.

This court concluded that the lake was inevitable.

Utah did it statehood get titled to the land now in dispute.

In this phase of the proceeding, the United States is trying to divest Utah of lands that this court has held in this case belonged to the State of Utah.

As such, if there are any evidentiary failings anywhere which prevent any more definitive findings than the Master has made, the United States has the burden of proving the elements of reliction.

William H. Rehnquist:

What’s your answer of the governments’ contention that there’s a presumption that a change in boundary occurred by reliction.

Richard L. Dewsnup:

I think that’s wholly irrelevant.

The government makes that statement in its brief and it cites I think in Arizona Law Review article.

That law review article in turn cites a Colorado State case which simply says that if you have got a dispute, and the question is whether the water moves so rapidly, you have an evulsion or whether it’s an accretion that the accretion will be presumed unless an evulsion is proved.

But an evulsion has never been an issue in this case and I think that it’s just wholly irrelevant to the Great Salt Lake.

Richard L. Dewsnup:

A question was raised incidentally as to whether or not any other cases — lake cases have arisen and Mr. Justice White was asking whether Salt Lake might have dried.

When United States against Holt State Bank, Mud Lake did go dry in Minnesota.

And there, the issue was not one of reliction or accretion — it was not raised but the title was sustained in the state as against claim from upland patentees of the United States.

Byron R. White:

Mud lake was drained.

Richard L. Dewsnup:

It was drained for the purpose of permanent agricultural pursuit.

A lot of title questions have risen on lakes but I’m not aware of any federal reliction-accretion questions.

I would like to mention before my time is fully at the state law aspect.

After this court decided Bonelli Cattle Company which incidentally was a year ago to date on December 17 last year.

The State of Utah had contended that state law applied since the effect of any decision here would be divesting the State of Utah of land that undeniably was owned by the state through a common law doctrine.

After Bonelli however, the State of Utah advised the Master that in light of Bonelli, we thought that we could not urge the Master to decide this case based on the state law.

But we left our foot in the door in the event that if for any reason, the Master should decide or this case should decide these unusual and unique features of the Great Salt Lake are reliction lands under federal rules of property law, then this would be an ideal case for borrowing the state law for a purpose of resolving the Great Salt Lake question because the Hardy Salt case made it abundantly clear what the state law is.

The State of Utah has managed and administered these lands in disputes in statehood.

The federal government had winkling that it even wanted to make a claim of these lands until 1961.

I think it was 1961.

In any event, the public programs and pursuits and interest of the State of Utah, the state owns a bed of the lake, the minerals and solution — the minerals under the bed of the lake in part because of the litigation in this case.

And borrowing state law in this case would not necessarily set a (Inaudible) for borrowing state law in other similar cases because of the very unique —

Potter Stewart:

You said that the state owns the minerals beneath the bed.

Richard L. Dewsnup:

Yes.

Potter Stewart:

Wasn’t there some reservation in the United States of minerals?

If so, what was it?

Richard L. Dewsnup:

There was a reservation in the deed that the United States gave to the State of Utah — the State of Utah does not claim that by virtue of any conveyance in the United States.

When the state obtained the bed of the lake at statehood, by virtue of the equal footing doctrine, it got the bed and the minerals contained within the bed.

So this court adjudicated that in the early navigation route.

Potter Stewart:

So the reservation then is beneath.

Richard L. Dewsnup:

Would have no effect.

They reserve minerals and something they didn’t known any part of.

I don’t want to leave the impression that I think that these lands would be reliction lands under federal law.

We think that they very clearly are not, as Special Master Fahey felt compelled to apply federal law in the light of Bonelli and he did.

We think that he decided that correctly.

He considered a great many exhibits and other evidence beyond what he has attached to his report and what the three minor corrections we discussed at the beginning.

Richard L. Dewsnup:

The State of Utah respectfully requested at all other respects as Special Masters report conclusion, findings and decree be affirmed.

Thank you.

Warren E. Burger:

Do you have anything further.

You have about two minutes Mr. Boggs.

Danny Julian Boggs:

Yes, very briefly.

I would address myself to the question that Utah has raised with regard to the management that they say of these valuable mineral interest.

Now, it’s interesting that on the one hand, they say that the riparian owners have — that these lands aren’t very valuable that they have no interest in them.

And on the other hand, they wish to continue to own them in an essentially a proprietary capacity.

We believe that this implicates the doctrine that this court brought up in the Bonelli case which was, in Bonelli, the lands we believe were valuable.

They were good for recreation, for farming and so forth.

But they were not related to the purposes for which the state had been given the bed of the lake in the first place — navigation and related purposes.

So that while Utah has a public interest in the sense that the state would like to own the property generally.

Just as in Bonelli, we feel that it does not have the kind of public benefit for navigation and other purposes that would make the Doctrine of Reliction apply.

Finally, we would point out that justice in the Tideland case where if oil lies half inside and half outside the three-mile limit there maybe a problem.

That was exactly the purpose of the Great Salt Lake lands Act.

If Utah accepts the act, then there will be a permanent, fixed boundary hopefully above the level of the lake.

But the fact that there was a problem requiring legislative solution that is Utah run the congress and wanted them to pass an act to keep them from being hurt when the lake declined, does not keep the Doctrine of Reliction from basically being applicable.

The prettly charge that we have all through here if you took that kind of a daily chart, annually chart, on seasonal and temporary movements, we believe that similar charts could be shown on many other bodies of water.

We believe that the basic principles of reliction which apply to give an ambulatory boundary rather than a fixed boundary, should apply here and that the solution is the solution that the congress gave by the passage of the Great Salt Lake lands Act.

Warren E. Burger:

Thank you gentlemen.

The case is Submitted.