Opposition Brief — UNITED STATES v. LOUISIANA (No. 0026-74)
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No. -t6- Original | HAROLD B. WILLEY
Iu the
Supreme Court of the United States
OCTOBER TERM, B@@B® 1958
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UNITED STATES OF AMERICA, PLAINTIFF
Vv.
STATE OF LOUISIANA
OPPOSITION TO MOTION FOR LEAVE TO FILE
COMPLAINT AGAINST THE STATE OF LOU-
ISIANA, AND BRIEF IN SUPPORT
OF OPPOSITION.
FRED S. LeBLANC,
Attorney General,
State of Lowisiana
2201 State Capitol
Baton Rouge, La.
JOHN L. MADDEN,
a Assistant Attorney General,
State of Louisiana
2201 State Capitol
Baton Rouge, La.
BAILEY WALSH,
Special Assistant
Attorney General,
State of Louisiana
1346 Connecticut Ave., N.W.,
Washington, D. C.
¥ W. SCOTT WILKINSON
“ L. H. PEREZ
yY GROVE STAFFORD
Of Counsel
INDEX
Page
Opposition to Motion for leave to file complaint against
the State of Louisinna................................. 2
Brief in Support of Opposition to Motion for leave to
file complaint against the State of Louisiana... 5
Argument in Brief:
I. District Courts of the United States have been
granted concurrent jurisdiction by Congress in
controversies between the Federal Government
BEG To i a eS 5
IJ. This court may deny jurisdiction where another
appropriate jurisdiction exists... Sepilicestieiae. 7
Hii. This case involves numerous questions of fact
which should be determined through appellate pro-
ec NE A DUP SOT OD ATMS APE ae 8
IV. Justice and convenience require trial in Federal
Cre ts: Ca a en 8 ge 36
V. Controversies should not be decided in piecemeal
POE eae aS Se es ee 38
CITATIONS
Cases:
Ableman vy. Booth, 21 How. 506, 16 L. ed. 169 34
Ames v. Kansas, 111 U.S. 449, 469-71, 28
ey A ne a ee a7
Arkansas v. Tennessee, 310 U.S. 563, 570, 84
iy, 08. TOG, 206-3. 35
Barney v. Keokuk, 94 U.S. 324, 24 L. ed. 224. 17
Beal v. Missouri Pac. R. R. Co., 312 US. 45,
a i is a eae ee 34
Brown v. Grant, 116 U.S. 207, 212, 29 L. ed.
ae Pace SE MAE TINT Leite HAUS AK Baines Ee ok 16
II
Cases—Continued Page
Brush v. Commissioner of Internal Revenue,
300 U.S. 352, 81 L. ed. 691............-..2---2. 34
Buffington v. Day, 11 Wall. 113, 20 L. ed. 122.. 34
California v. Southern Pacific Ry. Co., 157
U.S. 229, 261, 39 L. ed. 683, 695.................... 2,8
Case v. Bowles, 327 U.S. 92, 97 90 L. ed. 552,
ers ALES TE RT ire CC 7
Church v. Hubbart, 2 Cranch 187, 234-5, 2
NS a crokiioaekaoneae 21, 24
Clark v. Barnard, 108 U.S. 436, 447, 448, 27
Nn cacaabapincctanbte 28
Colorado v. Symes, 286 U. S. 510, 76 L. ed.
Oo ounapinansine 34
Coyle v. Smith, 221 U.S. 559, 566, 85 L. ed.
fy A a ee 26
Doe v. Beebe, 13 How. 25, 14 L. ed. 35.............. 17
Dodge v. Woolsey, 18 How. 331, 15 L. ed. 401.. 34
Educational Films Corp. v. Ward, 282 U.S.
4 EO ERR Eat eto 34
Georgia vy. Chattanooga, 264 U.S. 473, 68
ON eG Na a 8
Georgia v. Pennsylvania R. R. Co., 324 U.S.
439, 464-465, 89 L. ed. 1051, 1066-1067... 2, 3, 8, 10
4 Goodtitle v. Kibbe, 9 How. 471, 13 L. ed. 220... 17
Guaranty Trust v. United States, 304 US.
: 126, 184, 82 L. ed. 1224, 1229........................ 28, 35
: Handly v. Anthony, 5 Wheat. 374, 383, 384, 5
L. ed. 113, 115... ethol SAE Stave 30
Indiana v. Kentucky, 136 U.S. 479, 34 L. ed.
oe, sh esscacwinbaedebinns de 30, 35
3 Jones vw. Wetts, 142 F. 2d 676.......................... 28
: Louisiana v. Mississippi, 202 U.S. 1, 53, 50
: a I I no iene eecowsinewssneesbincnces SEAR 16, 35
Martin’s Lessee v. Waddell, 16 Pet. 367, 410
I I I oh hc cctreeyuiéns acwsnoacoeeeanenee 27, 30
Maryland v. West Virginia, 217 U.S. 1, 42, 54
ek & eee a AIR ee 35
III
Cases—Continued Page
Massachusetts v. Missouri, 308 U.S. 1, 19, 84
ER Tea RBEREEST sa tr Sotaepe ae eee ee 2, 8,10
Massachusetts v. New York, 271 U.S. 65, 95-
96, 70 L. ed. 838, 848-851............ eee 27, 30
McCulloch v. Maryland, 4 Wheat. 316, 4 L. ed.
SRS EA MER SEE ST A ee ene em 34
New Mexico v. Texas, 275 U.S. 279, 48 S. Ct.
EN Ele A te en Dee Sys Se Ce ee 30, 35
New Orleans v. United States, 10 Pet. 662,
yc A ERE Es Ree nnn 17
People of Porto Rico v. Ramos, 232 U.S. 627,
A aa econ 28
Phillips v. Payne, 92 U.S. 130, 132, 23 L. ed.
“Che. Saas Be ages Paha cel Fale aes We Sag ea 35
Pollard v. Hagan, 3 How. 212, 11 L. ed. 566.... 17, 26
Richardson vy. Farjardo Sugar Co., 241 U.S.
a i iain ko ccc ceiswtionsiosntenn 28
Rhode Island vy. Massachusetts, 4 How. 591,
Ea” et ) > een 35
State of California vy. United States, 91 Fed.
RN WI ci pe clicca cenenditosductneneticinpcalusaicenguititins 2,7
State of Minnesota v. United States, 125 Fed.
SEER SIAN RSS Ie eat AE eT ae ER 2,7
United States v. Bank of New York and Trust
Co., 296 U.S. 463, 479, 80 L. ed. 331, 339...... 7
United States v. California, 297 U.S. 175, 187,
I a NE NO os sSierictnnccs soca noch aaakinnndeiains 7
United States v. California, 332 U.S. 19, 36
91 L. ed. 1889, 1898............. DREISER TD PRO 26
United States v. Chaves, 159 U.S. 452, 464,
3 a | Rene ek en ence 35
United States v. Montana 134 Fed. 2d 194... mt
United States v. National City Bank, 83 Fed.
2d 236, 238, cert. den. 299 U.S. 563, 81
ON te, NA ONESIES ack Hie MEP RN ca eee 28
United States v. Texas, 162 U.S. 1, 40 L. ed.
BGT ate eta! Ee AE Sh Ie HER ME Le eRe Do 21, 27, 30
United States v. Texas, 339 U.S. 707, 719-720,
OG i, oc. feet, teee......<............ RO eae 25
IV
Cases—Continued Page
Van Brocklin v. Anderson, 117 U.S. 151, 168,
ee NI VT I asad ies catecsboee cin steal np seonenadase 17
White v. Hart, 13 Wall. 646, 20 L. ed. 685........ 34
Statutes:
28 USC 1251 (b) (2), 62 Stat. 927........ Pn 2,6
BP Ns 2,6
Submerged Lands Act of May 22, 1953, 67
Stat. 2B; 45 USC 1301, ot aed......................... 3, 14
MSU RI ao sknicesiinceinrpercsnrcovsisces 6
Title 28, Sec. 1251 (b) (2), USC...................... 6
; 2 Stat. 283, approved March 26, 1804_.......... 12
: 2 Stat. 701, 703, approved April 8, 1812... 12, 15
3 2 Stat. 708, approved — i... 12,15
: | REE Sa ie eA i eee Bare RIE 21
a Oe I Cue et ee os 23
; a He ee Re I acai dee echoes peecdacapeccens 33
x Be re ee a ir es 33
: Act of August 7, 1953, 67 Stat. 462, 43 USC
, NARS aE Say el oem ocr AC IR eee 33
4 Bh, We I I eee 39
Act of Congress, Feb. 19, 1895, 28 Stat. 672,
Se 39
Title 43, USC, Sec. 1301, 67 Stat. 29.......... ee 39
United States Constitution:
IIE BE etal’. ss ca: d. scecenbida 2 caennnesagnneningoicteth ee
Treaties:
Treaty of Paris (1803) ................ 9, 11, 12, 18, 17, 21
Treaty of St. Ildefonso (1800) —.........0......... 12, 18
Treaty of Fontainebleu (1762) —........00000..... 12
Treaty between United States and Spain, Feb.
GR MENTE RL Ee Seopa EMO ole | SEE ae 21
Treaty of Guadalupe Hidalgo (1848)... 22
Gadsden Treaty, Dec. 30, 1853.......................... 23
Vv
Page
Other Authorities and References:
Appendix, Cong. Globe, 28th Cong., 1st Sess.,
I Ra Ee SNE Ie UND ERAN AER Mel Tee 22
Louisiana Hist. Quarterly, Vol. 2, No. 2,
April, 1916, np. TOD-B40. 2.2 2..ncnessesesinss-.- 12,17
Committee Report, H.R. 4198... 15
U. S. Code Congressional and Administrative
News, 83rd Congress, Ist Sess. (1953), pp.
AEE ans ctetctsaase encemeerntant ie oasis ecatadiacnins 15
Journal of the Continental Congress, vols. 13-
Be te ohn hei a ed eat eaten ne 18
Letter of John Quincy Adams to Robert E.
Livinwatom, FOR. G, 1 FB ain incecicicic cscs 18
Riesenfeld “‘Protection of Coastal Fisheries’... 18, 21
Convention between His Britannic Majesty
and the King of Spain-—Government Pam-
phlet No. 1799, Bodleian Library, Oxford,
EE eA ak Sere antar e t RT e 19
Manuscript of Notarial Proclamation of le
Salle, Department of Marine Archives of
I righ oceeihe eeeteclobrigaes abate adgssiats aceite 19
American State Papers, vol. IV, p. 468-70_..... 20
Journal of House of Commons, 18 March,
I BE I inched iunk ni octass ic adk enietninnckes 14
Colombos, “International Law of the Sea,” p.
RIES EPS Mg Aint ae SE ALLAN ea RE 21, 24
Speech by Senator Walker in United States
| RR ERRETSina ePicemer Nae ROPE) Smee PRR AN Cea 22
Congressional Globe, 33rd Cong. 1st Sess. 1568 23
United States Code Congressional and Admin-
istrative News, 83rd Cong.; Ist Sess.
te A. eee ene eaee 24
H. J. Res. 225, 79th Congress, 2d Sess. (1946) ;
92 Cong. Record 9642, 10316 (1946); 92
Cong. Record 10660 (1946); S. 1545, 81st
Cong.; H. R. 5992, 80th Cong., Rec. 5155
NI Wasslidicnasticavan Re tae ace ae, 26
VI
Other Authorities and References—Continued Page
United States Code Congressional and Admin-
istrative News, 83rd Cong.; Ist Sess.
(1953), Vol. 2, pp. 1429-30. 28
10 F. R. 12803, 4 U. S. Code Cong. Service,
and accompanying order No. 9633, 3CFR,
1945 Supp. .............. 82
Complaint, Art. IV, United States v. Louisi-
ana, No. 12 Original, October Term, 1949,
United States Supreme Court........................ 33
Lauterpacht, Private Law Sources and Anal-
ogies of International Law (London, 1927),
pp. 203-207 EL In Sele 35
Bbc essxge resent SENN RO tis eee RAN REM Ee RRS S TIN AB Pap ee. |
~etoml
Sixtheese
No. 15 Original
In the
Supreme Court of the United States
OCTOBER TERM, 1955
UNITED STATES OF AMERICA, PLAINTIFF
Vv.
STATE OF LOUISIANA
OPPOSITION TO MOTION FOR LEAVE TO FILE
COMPLAINT AGAINST THE STATE OF
‘LOUISIANA.
Now comes the State of Louisiana, through its
Attorney General, and without waiving its right
to object to the jurisdiction of this court, files this
its opposition to Plaintiff’s motion for leave to file
its complaint against the State of Louisiana, and
for cause of opposition shows:
1.
Congress has conferred on the District Courts
of the United States concurrent jurisdiction with
the Supreme Court of the United States in cases
where a State is a party thereto.
mee)
2
U.S. Const. Art. ITI, See. 2, 28 USC 1251
(b) (2), 62 Stat 927, 28 USC 1381, 1345
Ames v. Kansas, 111 US 449, 469-71, 28
L.Ed. 482, 490
State of Minn. v. U.S., 125 F.2d 636
U.S. v. Montana, 134 F.2d, 194
State of California v. U.S., 91 F.Supp. 722.
2.
The exercise of original Jurisdiction by this ;
Court is not mandatory and the Court may with- 3
hold such jurisdiction where another appropriate
forum exists.
Georgia v. Penn. R.R. Co., 324 US 439,
464-465, 89 L.Ed. 1051, 1066, 1067. i
Mass. v. Missouri, 308 US 1, 19, 84 L.Ed.
5 Cee el RS Bk ain titted aise nah
3, 10.
a
California v. So. Pac. Ry. Co., 157 US 229, ;
261, 39 L.Ed. 683, 695.
Questions raised in this proposed proceeding
regarding the boundaries of the State of Loui-
siana in the Gulf of Mexico involve numerous ques-
tions of fact concerning which this Court will not
take judicial notice. Such matters of fact, and ap-
propriate questions of law relating thereto, can
best be determined through appellate procedure,
and cannot be conveniently and fully presented in ‘
an original proceeding in this Court.
Georgia v. Penn. R.R. Co., 324 US 4389, 465,
89 L.Ed. 1051, 1067.
ELROD LOE
REESE GLEE RTL PATE SEITEN EEE NE ME SMPTE! MESS a
Rib PDS aR Tete ol N A SEPA EMERALD
i
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4.
A proper presentation of Louisiana’s defenses
and claims in this proposed cause will involve in-
troduction in evidence of foreign treaties and
documents, and of numerous maps, charts, and
diagrams, records of the State Land Office, The
Department of Conservation, and other State of-
fices, which the Court will not judicially notice and
the testimony of local witnesses. The transporta-
tion of such evidence and witnesses to Washing-
ton, D. C., would be a matter of great expense and
inconvenience to the State of Louisiana and would
be wholly impracticable and burdensome. In the
interest of justice and public convenience the State
of Louisiana is entitled to trial in a District Court
of the United States having jurisdiction in the
State of Louisiana and located therein.
Georgia v. Penn R. R., supra
5.
Plaintiff seeks a trial of the dispute between
the United States and the State of Louisiana in
piecemeal fashion and a solution of the issues pre-
sented in the complaint would not dispose of the
controversy between the parties. The complaint
seeks a decree for the only purpose of determining
the width of the marginal belt owned by Louisiana
seaward in the Gulf of Mexico by virtue of the Sub-
merged Lands Act of May 22, 1953, 67 Stat. 29,
43 USC 1301, et seq. Such a determination would
4
be utterly ineffectual without a determination of
the location of Louisiana’s coast line, or the land-
ward boundary of the marginal belt, which deter-
mination is a basic issue in the controversy.
The State of Louisiana submits herewith its
brief in support of this opposition. It respectfully
urges and submits that this matter be fixed for
oral argument; that this opposition be sustained
and the relief prayed for by the plaintiff be denied.
FRED S. LeBLANC,
Attorney General,
State of Louisiana
2201 State Capitol
Baton Rouge, La.
JOHN L. MADDEN,
Assistant Attorney General,
State of Louisiana
2201 State Capitol
Baton Rouge, La.
BAILEY WALSH,
Special Assistant
Attorney General,
State of Louisiana
1346 Connecticut Ave., N.W..,
Washington, D. C.
W. SCOTT WILKINSON
L. H. PEREZ
GROVE STAFFORD
Of Counsel
February, 1956
No. 15 Original
Iu the
Supreme Court of the United States
OCTOBER TERM, 1955
UNITED STATES OF AMERICA, PLAINTIFF
Vv.
STATE OF LOUISIANA
BRIEF IN SUPPORT OF OPPOSITION TO MOTION
FOR LEAVE TO FILE COMPLAINT AGAINST
THE STATE OF LOUISIANA
Without waiving its right to object to the juris-
diction of this court, the State of Louisiana op-
poses plaintiff’s motion for leave to file the pro-
posed complaint in this Court for the reasons
stated in the opposition which precedes this brief.
Those reasons will be discussed hereinbelow.
f. DISTRICT COURTS OF THE UNITED STATES HAVE
BEEN GRANTED CONCURRENT JURISDICTION BY CON-
GRESS IN CONTROVERSIES BETWEEN THE FEDERAL
GOVERNMENT AND A STATE.
If it should be found that Congress has the
power to authorize a suit by the United States
against any of the member states of the Union,
(5)
6
then Congress has exercised such authority by
providing that the District Courts shall have con-
current jurisdiction with the Supreme Court of
the United States in such cases.
Article 3, Section 2 of the United States Con-
stitution extends the judicial power to all cases
arising under the Constitution, the laws of the
United States, and treaties made under their au-
thority. It confers upon the Supreme Court orig-
inal, but not exclusive, jurisdiction to those cases
in which a State shall be a party.
Section 1345 of Title 28 of the United States
Code gives to the District Courts of the United
States original jurisdiction in those cases where
the United States is a plaintiff. This Section of
the Judicial Code reads as follows:
“S$ 1345. United States as plaintiff
Except as otherwise provided by Act of
Congress, the district courts shall have orig-
inal jurisdiction of all civil actions, suits or
proceedings commenced by the United States,
or by any agency or officer thereof expressly
authorized to sue by Act of Congress. June
25, 1948, c. 646, 622 stat. 933.”
Section 1251 (b)(2) of Title 28 of the United
States Code grants to this Court original, but not
exclusive, jurisdiction of controversies between
the United States and a state. This section of the
Judicial Code reads:
7
“$ 1251. Original jurisdiction
(b) The Supreme Court shall have original
but not exclusive jurisdiction of:
(2) All controversies between the United
States and a State.”
Louisiana does not admit that it can be sued
by the United States and asserts that, in any event,
it cannot be sued by the United States without its
consent; but if so sued, with or without its con-
sent, then the venue of such an action can be laid
either in this court, or in the United States District
Court for the Eastern District of Louisiana.
This Court has recognized the power of Con-
gress to grant to the inferior Courts of the United
States jurisdiction in cases where the Supreme
Court has been vested by the Constitution with
original jurisdiction.’ This principle has also been
approved in other cases decided by the Courts of
Appeal and the District Courts of the United
States.”
Ii. THIS COURT MAY DENY JURISDICTION WHERE AN-
OTHER APPROPRIATE FORUM EXISTS.
1 Ames v. Kansas, 111 US 449, 469, 28 L.Ed. 482, 490;
U. S. v. Bank of N. Y. & Trust Co., 296 US 463, 479,
80 L.Ed. 331, 339; U. S. v. California, 297 US 175, 187,
80 L.Ed. 567, 574; Case v. Bowles, 327 US 92, 97, 90
L.Ed. 552, 557.
2 State of Minn. v. U. S., 125 F. 2d 636; U. S. v.
Montana, 134 F. 2d 194; State of California v. U. S.,
91 F. Supp. 722.
8
In the case of Georgia v. Pennsylvania R. R. Co.,
324 US 439, 464, 89 L.Ed. 1051, 1067 this Court
stated that Clause 2 of Section 2, Article III of the
United States Constitution does not grant exclu-
sive jurisdiction to this Court in the cases enum-
erated by it and that the exercise of that jurisdic-
tion is not mandatory but may be withheld where
another suitable forum exists. We quote from the
decision in that case:
“The Court in its discretion has withheld
the exercise of its jurisdiction where there
has been no want of another suitable forum
to which the cause may be remitted in the
interest of convenience, efficiency, and justice.
Georgia v. Chattanooga, 264 US 472, 68 L.Ed
796, 44 S.Ct. 369, and Massachusetts v. Mis-
souri, both supra.” °
As will be hereinafter shown the interests of
convenience, efficiency, and justice would require
that this case be tried in a District Court of the
United States and in the State of Louisiana.
Ill. THIS CASE INVOLVES NUMEROUS QUESTIONS OF
FACT WHICH SHOULD BE DETERMINED THROUGH
APPELLATE PROCEDURE.
Plaintiff’s brief, page 15, makes the statement
that the United States believes that this case will
not require the taking of any evidence, but involves
3 See also Massachusetts v. Missouri, 308 US 1, 19
84 L.Ed. 3, 10; California v. So. Pacific R. R. Co., 157
US 229, 261, 39 L.Ed. 683, 695.
9
only questions of law and matters of which the
Court will take judicial notice. We take issue with
this statement because the State of Louisiana
desires to present and must present numerous
questions of fact regarding the location of its
boundaries in the Gulf of Mexico and this Court
will not take judicial notice of these facts. The
proposed action involves questions relating to the
historic boundaries of the State of Louisiana, and
a determination of these historic boundaries will
require reference not only to treaties made with
the United States which this Court will judicially
notice, but foreign treaties and documents located
in the archives of England, France and Spain
which this Court will not judicially notice. Lou-
isiana was successively under the domination of
France and Spain before it was ceded to the United
States by the Treaty of Paris in 1803. This
Treaty of cession known as the Louisiana Pur-
ci:ase describes the territory of Louisiana as a
territory located within the limits which it pos-
sessed in the hands of Spain, and that it had when
France possessed it. The State of Louisiana de-
sires to make proof by foreign documents, maps
and treaties of the limits of the territory of Lou-
isiana which the Treaty between the United States
and France, signed at Paris, April 30, 1803, obli-
gated the United States to incorporate as states
of the Union.
10
Again referring to the case of Georgia v. Penn.
R. R. Co., (Supra), we call attention to that por-
tion of the decision which states that it would be
wholly appropriate that the issues tendered in a
case of this kind should be tried in a United States
District Court where facilities are better adapted
to an extended trial of issues of fact. In this con-
nection we desire to quote the following para-
graphs of the opinion: *
“There is some suggestion that the issues
tendered by the bill of complaint present ques-
tions whick a district court is quite competent
to decide. It is pointed out that the remedy
is one normally pursued in the district courts
whose facilities and prescribed judicial duties
are better adapted to the extended trial of
issues of fact than are those of this Court.
And it is said that no reason appears why the
present suit may not conveniently proceed in
the district court of the proper venue or why
the convenience of the parties and witnesses,
as well as of the courts, would be better served
by a trial before a master appointed by this
Court than by a trial in a district court with
the customary appellate review. The sugges-
tion is that we deny the motion for leave to
file without prejudice to the maintenance of
the suit in an appropriate district court. See
Massachusetts v. Missouri, supra (308 US
pp. 17, 18, 84 L.ed. 9, 10, 60 S.Ct. 39).
be ua WK ahaa aca
‘324 US 465, 89 L.Ed. 1067.
eee i
11
“There is, however, a reason why we should
not follow that procedure here though in other
respects we assume it would be wholly appro-
priate.” ***
The reason why this Court exercised its original
jurisdiction in the foregoing case was that the
plaintiff could not have obtained relief in the Dis-
trict Courts because it could not have secured juris-
diction over a number of the defendants, and in
any event could not have found all of the defend-
ants in any one of the judicial districts of Georgia.
No such problem exists here.
A general statement of Louisiana’s claims to
submerged lands in the Gulf of Mexico will suffice
to show that the taking of evidence is necessary
and desirable, not only to prove the width of the
marginal belt claimed and owned by the State, but
to demonstrate also the landward and seaward
location of the lines which delineate this belt. The
statements which follow are not intended to fur-
nish a complete and detailed argument on this sub-
ject, since the merits of this case are not before
the Court at this time. We will only attempt to
outline some of the defenses that involve oral evi-
dence and documentary proof of which the Court
will not take judicial notice.
Louisiana’s case, among other things, involves
an interpretation and application of the provisions
of the Treaty of Paris between France and the
aegis aninsaniaesioncedy
12
United States in 1803 whereby the territory of
Louisiana was ceded to the United States. To
properly interpret this treaty recourse must be
had to certain prior treaties between France and
Spain; i.e., the Treaty of St. Ildefonso dated Sep-
tember 15, 1800 and the Treaty of Fontainebleu
dated November 3, 1762. These treaties and vari-
ous proclamations and edicts of the Kings of
France and Spain furnish evidence concerning the
historic boundaries of Louisiana and must be con-
sidered in interpreting the Act of Congress creat-
ing the Territory of Orleans,’ and the Acts of
Congress admitting the State of Louisiana into
the Union.°
The Acts of Congress creating the Territory of
Orleans, and thereafter forming this territory into
the State of Louisiana, were undoubtedly passed
for the purpose of carrying out the obligations of
the United States assumed in the Treaty of Paris
whereby this territory was acquired from France.
The first Article of tnis treaty reads, in part :*
‘... The French Republic... doth hereby
cede to the said United States, in the name
of the French Republic, for ever and in full
sovereignty, the said territory, with all its
°2 Stat. 283 approved March 26, 1804.
62 Stat. 701, 703 approved April 8, 1812.
2 Stat. 708 approved April 14, 1812.
* La. Hist. Quarterly Vol. 2 No. 2, Apri! 1919 page 139-
140.
13
rights and appurtenances, as fully and in the
same manner as they had been acquired by
the French Republic.” (Emphasis supplied.)
This paragraph in the Treaty of Paris is pref-
aced by a recital taken from the Treaty of St.
Ildefonso of September 15, 1800 which is also
quoted, in part:
“His Catholic Majesty (Spain) promises
and engages, on his part, to retrocede to the
French Republic— . . . . the colony or prov-
ince of Louisiana, with the same extent that
it now has in the hands of Spain, and that it
had when France possessed it; and such as
it shouid be after the treaties subsequently
entered into between Spain and other States.”
Article 3 of the Treaty of Paris concerning the
cession of the Louisiana territory to the United
States, provides:
“The inhabitants of the ceded territory
shall be incorporated in the Union of the
United States, and admitted as soon as pos-
sible, according to the principles of the Feder-
al Constitution, to the enjoyment of all the
rights, advantages and immunities of citizens
of the United States; and in the meantime
they shall be maintained and protected in the
free enjoyment of their liberty, property, and
the religion they profess.”
The Articles of the Louisiana cession thus obli-
gate the United States to incorporate Louisiana
14
into the Union according to the principles of the
Federal Constitution, and to maintain the inhab-
itants of Louisiana in their property in the terri-
tory with all its rights and appurtenances in the
same manner as they had been acquired by the
French Republic, and to the same extent as when
this territory was in the hands of Spain, and that it
had when France possessed it. In other words, the
United States agreed that the people of Louisiana
would be guaranteed in their ownership of the
territory within its historic boundaries when the
State should be formed and admitted to the Union.
It is therefore important to determine the extent ;
of the Louisiana territory and its boundaries when :
it was successively occupied by Spain and France.
We are here concerned, of course, with only that
portion of the territory of Louisiana bordering on
and in the Gulf of Mexico, which was incorporated
into the State of Louisiana. A determination of
these historic boundaries is one of the require-
ments of the Submerged Lands Act. Section 4 of
the Act (48 USC 1312) provides:
“,.. Nothing in this section is to be con-
strued as questioning or in any manner preju-
dicing the existence of any State’s seaward
boundary beyond three geographical miles if
it was so provided by its censtitution or laws
prior to or at the time such State became a
member of the Union, or if it has been hereto-
fore approved by Congress. May 22, 1953, c.
§5, Title II, § 4, 67 Stat. 31.”
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15
The purpose of the Submerged Lands Act is
thus stated by the Reports of Congressional Com-
mittees which approved H.R. 4198:°
“PURPOSE OF LEGISLATION
H.R. 4198 consists of three titles. Title I
contains the definitions of various terms used
in the bill. Title II deals with the rights and
claims by the States to the lands and resources
beneath navigable waters within their historic
boundaries and provides for their develop-
ment by the States. Title III (See Analysis of
Title III, post) deals with the seabed and re-
sources therein of the outer Continental Shelf
beyond State boundaries and claim jurisdic-
tion and control for the Unites States. It au-
thorizes leasing by the Secretary of the In-
terior in accordance with certain specified
terms and conditions.”
Oral and documentary evidence are required
also in order to interpret the Acts of Congress ad-
mitting Louisiana into the Union.’ The Act of
April 8, 1812 which delineates the portions of the
boundary in dispute here reads in part as follows:
“,.. Beginning at the mouth of the River
Sabine; thence by a line to be drawn along
the middle of said river, including all islands,
to the thirty-second degree of latitude; thence
due north to the northernmost part of the
*US Code Congressional and Administrative News,
83rd Congress, 1st Sess. 1953 pages 1387 and 1399.
® Act of Congress approved April 8, 1812, 2 Stat 701;
Act of Congress approved April 14, 1812, 2 Stat 708.
ae
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16
thirty-third degree of north latitude; thence
along the said parallel of latitude to the River
Mississippi; thence down the said river to the
River Iberville; and from thence along the
middle of the said river and Lakes Maurepas
and Pontchartrain to the Gulf of Mexico;
thence bounded by the said gulf to the place
of beginning, including all islands within
three leagues of the coast.”
The United States contends that the words
“bounded by the said Gulf including all islands
within three leagues of the Coast’”’ mean that Lou-
isiana’s southern boundary is a land boundary and
that its dominion stopped at the shore line of the
Gulf of Mexico. The State of Louisiana insists
that its southern boundary is a water boundary
that extends at least three leagues seaward from
its coast line. It was so interpreted by this Court
in the case of Louisiana v. Mississippi, 202 US 1,
50 L.ed. 913, and is so drawn on the diagrams which
are made part of the court’s decision in that case.
If this Court should now find that the words of
the Act describing the limits of Louisiana do not
plainly indicate that the seaward boundary of the
State extends three leagues from its coast line into
the Gulf, then such a description will be implied.
Unless otherwise declared by Congress, the title
to every species of property owned by a territory
passes to a State on its admission into the Union.”
10 Brown v. Grant, 116 US 207, 212, 29 L.ed. 593, 600.
i
oe
17
The United States does not, and cannot, hold prop-
erty, as a monarch may, for private or for personal
purposes.”
The Territory of Orleans, that part of the Lou-
isiana Purchase which became the State of Louisi-
ana, included all submerged lands and waters
extending int: the Gulf of Mexico that had pre-
viously been under the claim and dominion of
France and Spain. The United States acquired
this territory from France, in trust, for the in-
habitants of the territory and for the State to be
formed out of the property thus ceded by France.”
This obligation of trust is expressly stipulated in
Article 3 of the Treaty of Paris whereby the terri-
tory of Louisiana was ceded by France to the
United States.** In a proper action Louisiana will
present documentary proof to show that during
the 18th century France and Spain, without pro-
test from other powers, and with the consent of
Great Britain, held dominion over the Continental
Shelf of Louisiana extending seaward for ten to
forty leagues. These facts will be shown by evi-
' Van Brocklin vy. Anderson, 117 US 151, 169, 29 L.ed.
845, 851.
* New Orleans v. US, 10 Pet. 662, 737, 9 L.ed. 573, 602;
Pollard v. Hagan, 3 How. 212, 11 L.ed. 566; Goodtitle v.
Kibbe, 9 How. 471, 13 L.ed. 220; Doe v. Beebe, 13 How.
25, 14 L.ed. 35; Barney v. Keokuk, 94 US 324, 24 L.ed.
224; Van Brocklin v. Anderson, 117 US 151, 168, 29 L.ed.
845, 851.
La. Historical Quarterly, Vol. 2, No. 2, April 1919,
p. 140.
18
dence which, in part, will not be judicially noticed
by the Court.
As early as 1763 Great Britain, France and
Spain, who then possessed the entire North Ameri-
can Continent, agreed that three leagues was a
reasonable measure of the width of Territorial
waters. A treaty between these three powers
signed at Paris on February 10, 1763 stipulated
such a limit for Britain’s territorial waters off
Nova Scotia and New Foundland." The thirteen
colonies of the United States thought that three
leagues was a reasonable claim to adjoining seas
because the Continental Congress instructed its
negotiators with Great Britain, prior to the
Treaty of Independence of September 3, 1783, to
require recognition of American fishing rights in
the American Seas “excepting within the distance
of three leagues of the shores of the territory re-
maining to Great Britain at the close of the war.”’”
In 1790 Spain and England agreed to a ten
league territorial limit off-shore for Spain’s posses-
sions in the South Seas (Gulf of Mexico and Carib-
bean Sea) and South America, and a like bound-
ary for England’s possessions in North America.
This latter agreement was in the form of a treaty
14 Journal House of Commons 18 March 1763 p. 589.
15 Journal of the Continental Congress Vols. 13 & 14;
Letter of John Quincy Adams to Robert R. Livingston
dated Feb. 5, 1783; Riesenfeld, “Protection of Coastal
Fisheries”, p. 136.
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19
signed at Escurial on October 28, 1790—just ten
years before Spain ceded Louisiana to France in
the Treaty of St. Ildefonso.’ So when Spain
possessed Louisiana its boundaries extended ten
leagues seaward into the Gulf of Mexico and its
right to do so was never questioned by any nation.
France had then surrendered all her possessions
in North America, and neither France nor any
other nation protested the establishment of this
ten-league boundary in the American seas.
During the time that France possessed Louisiana
her boundaries extended beyond ten leagues into
the Gulf and included the entire Continental Shelf.
LaSalle in his Proclamation of April 9, 1682
took possession of the country of Louisiana in the
name of France with its Seas, ports and bays as
far as the mouth of the Mississippi in the Gulf of
Mexico to the 27th degree of latitude. This paral-
lel of latitude extends some forty leagues seaward
into the Gulf. This proclamation was made by
Notarial Act and read with great ceremony in the
presence of French Troops and a great host of
Indian tribes. It reads, in part:
“In the name of the Most High, Mighty,
Invincible and Victorious Prince, Louis the
16 Convention between His Britannic Majesty and the
King of Spain—Government Pamphlet #1799 Bodleian
Library, Oxford, England.
1 Manuscript of Notarial Proclamation of LaSalle,
Dept. of Marine Archives of Paris.
'
permeescepcrinve LEE ERA OS ce ET ET ELLER ESS LISLE ASHE GIN ANAT Y SNES ENING? Rep AE
20
Great, by the Power of God, King of France
and Navarre, 14th of that name, this the 9th
‘day of April, one thousand six hundred and
eighty-two, I, by virtue of the commission of
his Majesty, which I hold in my hand and
which may be seen by all whom it may con-
cern, have taken and do now take possession
of this country of Louisiana, the seas, ports,
bays, adjacent straits, and all the nations,
peoples, provinces, cities, towns, villages,
mines, minerals, fisheries, streams, and rivers,
comprised in the extent of said Louisiana, ***
as also along the River Coibert, or Mississippi
and rivers which discharge therein—as far as
its mouth in (dans) the sea or Gulf of Mexico
about the 27th degree of the elevation of the
North Pole, and also to the mouth of the
River of Palms;’’*** (Parenthesis added)
LaSalle’s claim to the 27th degree of latitude
was not made in error. At that time explorers and
navigators could make accurate measurements in
latitude by the simple use of the quadrant although
the determination of longitude was more difficult.
LaSalle’s claims were recognized by the American
Department of State as being “certain, authentic
and particular.”
Louisiana’s historic boundaries therefore were
forty leagues into the Gulf ‘when France pos-
sessed it” and at least ten leagues seaward “‘in the
hands of Spain’, and the Treaty between France
18 Am. State Papers Vol. IV p. 468-70.
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21
and the United States signed at Paris, April 30,
1803 for the Louisiana Purchase obligated the
United States to incorporate this territory in the
State to be formed.
iS WRENS A
Although in later years, and for certain pur-
_ poses only, the United States and Great Britain
have championed the claim that territorial waters
extend only three miles seaward, they have not
consistently followed such a rule. From time to
time they have in various respects made exceptions
and agreed to a broader extent of territorial seas.’
In the treaty between the United States and
Spain made on February 22, 1819 and ratified
February 19, 1821 (8 Stat. 252) the boundary of
the United States in the Gulf of Mexico was de-
scribed as beginning “at the mouth of the River
Sabine, in the sea”. Again the United States and
Mexico concluded a treaty on January 12, 1828
; | wherein the dividing limits of the respective coun-
tries were declared to be the same as those fixed
by the treaty of 1819. (8 Stat. 372).
Later events show that this southwest corner of
Louisiana was intended to be located three leagues
in the sea. This Court in United States v, Texas,
bs 162 US 1, 40 L.Ed 867 makes reference to these
Sass soes
eet
RING
. 1° Church v. Hubbart, 2 Cranch 187, 234-5, 2 L.ed. 249,
& 265; Riesenfeld “Protection of Coastal Fisheries Under
= International Law” pages 131-136, 260; Colombos, ‘In-
ge ternational Law of the Sea”’ p. 103.
eer |
22
treaties in connection with the boundaries of
Texas, 3 leagues at sea.
The United States Senate, on March 1, 1837,
adopted a resolution recognizing the independence
of Texas. This resolution was offered by Senator
Walker of Mississippi. During the final debate on
the resolution immediately prior to its adoption,
Senator Walker acquainted the Senate with the
boundaries of Texas by reading on the floor of the
Senate the boundary act of December 19, 1836.”
Article 5 of the Treaty of Guadalupe Hidalgo
(1848), which relates to the boundary line between
the United States and Mexico, reads in part as
follows:
“The boundary line between the two Re-
“°In a speech in a secret session of the Senate on the
treaty for the annexation of Texas to the United States,
on May 21, 1844, Mr. Walker refers to the resolution
adopted on March 2, 1837, saying: ‘‘As the author of the
resolution, before it was adopted, I read to the Senate
the boundaries of Texas, as described in her organic law,
claiming it also as the ancient boundaries of Louisiana;
and, with the full knowledge of these facts, the resolution
was adopted. In our subsequent treaties, and those of
Great Britain, France, and Holland, she is described as
‘the republic of Texas’ and her independence fully recog-
nized. If, then, as contended by the senator from Mis-
souri, the mere name (the republic of Texas) in a treaty
adopts the boundaries described in her organic law,
not only have we rece.snized the Del Norte as the right-
ful boundary of Texas, but also have Great Britain,
France, and Holland.” (Emphasis supplied). (Appendix
to the Cong. Globe, 28th Cong. 1st Sess. 549.)
23
publics shall commence in the Gulf of Mexico,
three leagues from land, opposite the mouth
of the Rio Grande...” *!
A further acknowledgment by the United States
of the three league boundary in the Gulf is found
in the Gadsden Treaty, concluded between the
United States and Mexico, December 30, 1853.°
Article I of this treaty provides that:
‘
‘... the limits between the two Republics
shall be as follows: Beginning in the Gulf of
Mexico, three leagues from land, opposite the
mouth of the Rio Grande, as provided in the
fifth article of the treaty of Gaudalupe Hidal-
”
a
and for the demarcation of this boundary by a
joint commission of both countries.
This three league line was actually surveyed
again and agreed upon as the international bound-
ary between the United States and Mexico in 1911.
The Submerged Lands Act itself recognizes the
fact that a different rule exists with reference to
States bordering the Gulf Coast from that which
exists in the case of States bordering the Atlantic
and Pacific Oceans. It confirms the claims of states
on the Gulf coast to a limit of three leagues from
the coast whereas it restricts the States on the two
219 Stat. 922-23.
*2 Cong. Globe, 33rd Cong. 1st Sess. 1568.
24
oceans to territorial waters extending only three
miles seaward. The Legislative history of the Sub-
merged Lands Act contains the following state-
ment in the Congressional Committee Report:
“In 1868 Congress approved the Constitu-
tion of Florida, in which its boundaries were
defined as extending three marine leagues sea-
ward and a like distance into the Gulf of
Mexico. Texas’ boundary was fixed three
marine leagues into the Gulf of Mexico at the
time it was admitted to the Union in 1845 by
the annexation agreement.” ~’
The Committee Report just quoted then pro-
ceeds to describe the boundaries which were fixed
for other States bordering the Pacific and Atlantic
Oceans as extending three miles from the coast.
There are a number of reasons why a different
rule for the Gulf of Mexico exists. As stated by
Chief Justice Marshall *':
“In different seas and on different coasts, a
wider or more contracted range, in which to
exercise the vigilance of the government, will
be assented to.”
The Continental shelf in the Gulf of Mexico is
broad and extensive, and the water depth along its
coast is quite shallow. In fact, along the greater
*U. S. Code Congressional & Administrative News
83rd Congress First Session 1953 Vol. 2 p. 1516.
** Church v. Hubbart, 2 Cranch 187, 235, 2 L.ed. 249,
265; Colombos “International Law of the Sea” p. 39.
25
part of Louisiana’s coast the three fathom contour
extends twelve to fifteen miles seaward. Broad
and extensive shoals from four to five fathoms in
depth extend even further seaward. Prior to the
construction of the Panama Canal only a small
portion of the world’s commerce traversed its
limits. With few exceptions warships and large
ocean going vessels have never been able to ap-
proach as close as three leagues from shore except
at the entrances to its harbors and ports. The fact
that the Gulf is almost completely surrounded by
land with the West Indies and Bahamas stretching
across its relatively narrow entrance, differenti-
ites it from the open seas.
Since the three-league boundary in the Gulf of
Mexico has always been recognized by the United
states in the Gulf of Mexico around practically the
ntire perimeter of his land-locked body of water,
souisiana is, under the Constitution, entitled to
quality of treatment with the other Gulf Coast
states:
In the Texas Tidelands Decision this Court
aid *:
“The ‘equai footing’ clause prevents ex-
tension of the sovereignty of a State into a
domain of political and sovereign power of
the United States from which other States
* United States vy. Texas, 339 US 707, 719-720, 94
ed. 1221, 1228.
—
re AES SSIS re Be
26
have been excluded, just as it prevents a con-
traction of sovereignty (Pollard’s Lessee v.
Hagan (US) 3 How. 212, 11 L.ed. 565, (Su-
pra) which would produce inequality among
the States. For equality of States means that
tney are not ‘lesser, greater, or different in
dignity or power.’ See Coyle v. Smith 221 US
559, 566, 55 L.Ed. 853, 857, 31 S.Ct. 688.”
There is an abundance of evidence in the Con-
gressional Record to show that the United States
has always believed that the States own their ter-
ritorial waters and submerged lands in the sea
adjacent to their coasts, even without any express
grant, under the concept of state sovereignty and
the “equal footing” doctrine.*” This Court in the
California Tidelands Case affirmed the fact that
the Courts had been of that same opinion, at least
since Pollard v. Hagan *' was decided in 1844. In
the California Case your Honors said: *
“As previously stated this Court has fol-
*6 A majority of the members of Congress in 1946 and
1948 expressed the same understanding. See the wording
of H. J. Res. 225, 79th Cong., 2nd Sess. (1946) ; 92 Cong.
Rec. 1942, 10316 (1946) confirming titles to the States,
which was vetoed by the President. 92 Cong. Rec. 10660
(1946). Also see S. 1545, 81st Cong., authored by 31
Senators for the same purpose and containing the same
interpretation; aiid H.R. 5992, 80th Cong., which passed
the House by a vote of 257 to 29. 94 Cong. Rec. 5155
(1948).
*T Pollard v. Hagan, 3 How. 212, 11 L.ed. 565.
*8 U.S. vy. California, 332 US 19, 36, 91 L.ed. 1889, 1898.
27
lowed and reasserted the basic doctrine of the
Pollard case many times. And in doing so it
has used language strong enough to indicate
that the Court then believed that states not
only owned tidelands and soil under navigable
inland waters, but also owned soils under all
navigable waters within their territorial ju-
risdiction, whether inland or not... ”
As a matter of law, a recognition of Lcvisiana’s
title to the three-league belt should be implied. As
a matter of fact, i! can be proven as a result of
custom and usage over a long period of time.”
Louisiana since her aumission into the Union
has at all times, and with the acquiescence of the
United States, exercised governmental and pro-
prietary rights in its Continental shelf. Evidence
on this subject will be offered by the State in the
form of numerous maps, charts, records of the
State Land Office, State Department of Conserva-
tion, State Mineral Board, and by the records of
other State offices, and by the oral testimony of
witnesses. These are facts which require a hearing
before a trial court where pretrial procedures, and
other trial procedures, will facilitate an orderly
hearing and a full presentation of facts.
There are many equities involved in this con-
*2 U.S. v. Texas, 162 US 1, 61, 40 L.ed. 867, 892;
Mass. v. N. Y., 271 US 65, 95-6, 70 L.ed. 838, 848-851;
Martin’s Lessee v. Waddell, 16 Pet. 367, 410-417, 10
L.ed. 997.
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28
troversy, and of course the United States is sub-
ject to the same rules of justice and equity which
are applicable to other litigants.* In this connec-
tion the Congressional Committee Report, recom-
mending passage of the Submerged Lands. Act,
says:”
“The repeated assertions by our highest
Court for a period of more than a century of
the doctrine of State ownership of all navi-
gable waters, whether inland or not, and the
universal belief that such was the settled law,
have for all practical purposes established a
principle which the committee believes should
as a matter of policy be recognized and con-
firmed by Coneress as a rule of property law.
The evidence shows that the States have in
good faith always treated these lands as their
property in their sovereign capacities; that
the States and their grantees have invested
large sums of money in such lands; that the
states have received, and anticipate receiving
large income from the use thereof, and from
taxes thereon; that the bonded indebtedness,
8° Guaranty Trust Co. v. U.S., 304 US 126, 82 L.ed.
1224 and cases cited; Richardson vy. Fajardo Sugar Co.,
241 US 44, 60 L.ed. 879; People of Porto Rico v. Ramos,
232 US 627, 58 L.ed. 763; Clark v. Barnard, 168 US 436,
447, 448, 27 L.ed. 780; U. S. v. Nat’l City Bank, 83 F.2d
236, 238, Cert. Den. 299 US 563, 81 L.ed. 414; Jones v.
Watts, 142 F.2d 575.
31U. S. Code Congressional and Administrative News,
83rd Congress, lst Sess. 1953 Vol. 2 p. 1429-30.
29
school funds, and tax structures of several
States are largely dependent upon State own-
ership of these lands; and that the legislative,
executive, and judicial branches of the Feder-
al Government have always considered and
acted upon the belief that these lands were
the properties of the sovereign States.
If these same facts were involved in a dis-
pute between private individuals, an equita-
ble title to the lands would result in favor of
the person in possession. The Court in the
California case states, as a matter of law, that
the Federal Government—
‘is not to be deprived of those interests by the
ordinary court rules designed particularly for
private disputes over individually owned
pieces of property; ***’
That effect of this ruling of the Court is to
place the State of California in the same legal
position as an individual, thereby depriving
it of its status as a sovereign. It should be
noted that the case of U. S. v. California was
a controversy between two sovereigns, name-
ly, the United States on the one hand and the
State of California on the other, both of which
occupied equal dignity as sovereigns. The
sovereign rights enjoyed by the United States
were in the first instance derived from the
States and the sovereign powers of the United
States can rise no higher or have any greater
effect than that which was delegated to the
Central Government by the Constitution. The
committee believes that, as a matter of policy
Sy tear
praia 3 Siesce
30
in this instance, the same equitable principles
and high standards that apply between indi-
viduals, should be applied by Congress as be-
tween the National Government and the sov-
ereign States. (See /ndiana v. Kentucky, 136
US 479, 500, 10 S.Ct. 1051 (1890); U.S. v.
Texas, 162 US 1, 61, 16 S.Ct. 725 (1896) ;
New Mexico v. Texas, 275 US 279, 48 S.Ct.
126 (1927).)”
The equities involved here relate to the long
continued exercise of jurisdiction and ownership
by Louisiana over the waters and the submerged
lands in the Gulf, the recognition by the various
departments of the Federal Government of Loui-
siana’s ownership and title, and the acquiescence
not only of the United States but of other nations
in this dominion and title of the State. The acts of
United States administrative and executive of-
ficials in recognizing Louisiana’s title is certainly
evidence to explain and interpret the original in-
tent of the Federal and State governments in de-
scribing Louisiana’s boundaries in the Act of Con-
gress incorporating the Territory of Orleans into
the State of Louisiana.” Louisiana is entitled to
offer evidence, oral and documentary on this sub-
ject.
32 Mass. v. N. Y., 271 US 65, 95, 96, 70 L.ed. 838, 848-
851; Martin’s Lessee v. Waddell, 16 Pet. 410, 10 L.ed.
1012; Handly v. Anthony, 5 Wheat. 374, 383, 384, 5
L.ed. 118, 115.
iS 9 ssteh —"
31
Paragraph IX of the Government’s complaint
states that the fundamental issues involved in its
controversy with Louisiana “involves inquiry into
and application of the foreign policy of the United
States in a mater of peculiar importance and deli-
cacy” over which the original jurisdiction of this
Court is most appropriate. This is wishful think-
ing on the part of counsel for plaintitf in a supreme
effort to dress up the Government’s appearance
and evade an essential issue. As a matter of fact,
Plaintiff appears here not to champion or protect
or defend foreign policy, but to seek unjust en-
richment, through personal and material proprie-
torship, at the expense of one of the sovereign
states. The United States is claiming the owner-
ship of valuable oil lands belonging to Louisiana
and discovered through her own initiative and
industry,—not to protect interstate and foreign
commerce—not to defend Louisiana or the nation
from a foreign foe—nor for any other govern-
mental purpose. It merely seeks to establish a
private claim of ownership in Jands so that it may
go into the business of selling leases and mineral
rights and securing royalties on oil, gas, and ether
minerals. It possesses here no greater stature than
any other private land owner or oil company. The
mere fact that the United States may be called up-
on in time of war to defend and protect Louisi-
ana’s oil and gas wells in its territorial waters and
submerged lands adds nothing to the government’s
32
rights, purposes, or obligations now. In time of war
the Federal Government must defend the harbors
and port facilities of New York, New Orleans and
San Francisco and it must defend and protect the
gold and silver mines of Colorado, the oil fields
of Oklahoma, Illinois, Texas and California, the
lead mines of Missouri and the coal mines of
Pennsylvania and West Virginia. But the sover-
eign obligation to defend the properties of the
States and people confers no title of ownership
of those properties in the United States.
The statement in Article IX of the proffered
complaint that the fundamental question at issue
“involves inquiry into and application of the for-
eign policy of the United States in a matter of
peculiar importance and delicacy” can only be
taken as a frivolous argument. What repercus-
sions could be expected on the International scene
over Louisiana’s claim to a three-league boundary
in the Gulf, when the claim of the United States
to the entire continental shelf has not been pro-
tested by any nation since the claim was asserted
by Proclamation of President Truman on Septem-
ber 28, 1945?" The people of Louisiana have been
exercising an exclusive right to fish, trawl, and
33 10 F.R. 12303-4 US Code Cong. Service 1945 p. 1199,
1200 Executive Order +9633, 3CFR, 1945 Supp., accom-
panying this proclamation states that it shall not prej-
udice any issues between the United States and the sev-
eral states, relating to the ownership or control of the
subsoil and seabed on the Continental Shelf.
=
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33
seine the waters of the Gulf off shore since the
State was admitted to the Union, and the State has
by Legislative Act, at least as early as 1870, for-
bade aliens to fish or to remove oysters and shells
from her territorial waters in the Gulf on penalty
of fine and imprisonment. That was 86 years ago,
but no international complications have resulted
therefrom. Since 1915 the Legislature of Loui-
siana has authorized the leasing of its public lands,
including lands underlying the Gulf of Mexico,
for the exploitation of petroleum, gas and other
mineral deposits.* No delicate question of nation-
al policy has yet arisen on this subject. Numerous
oil and gas wells have already been drilled by
lessees of the State up to and exceeding three
leagues off shore without protest or controversy
except the present one between the State and the
Federal Government.
Furthermore, pursuant to the Outer Continental
Shelf Lands Act of Congress,’ the Federal Gov-
ernment has for several years been leasing lands
far out to sea on Louisiana’s continental shelf, and
drilling operations have been, and are being con-
ducted there. Why then should plaintiff say that
Louisiana’s exercise of proprietorship and domin-
34 Act No. 18 of 1870 of the Acts of Louisiana.
** Complaint, Art. IV, United States vs. La. +12 origi-
nal U.S. Sup. Ct. Oct. Term 1949. Act 30 of 1912 of the
Acts of La.
*6 Act of August 7, 1953, 67 Stat 462, 43 USC 1331.
34
ion closer to the shores raises delicate questions of
foreign policy? The argument is inconsistent, and
is without merit. Obviously no question of foreign
policy is involved so as to necessitate the exercise
of original jurisdiction by this Court.
If there be any principle of sovereignty involved
in the Federal Government’s claims let it be noted
that Louisiana is also sovereign within its bound-
aries on land and sea.
The boundaries between the respective power
and immunity of State and National Government
are drawn so as to reserve to each government,
within its own sphere, the freedom to carry on those
affairs committed to it by the Constitution without
undue interference by the other.** Powers of the
general Government and of the State, although
both exist and are exercised within the same ter-
ritorial limits, are yet separate and distinct so long :
as the present dual form of government endures. P
The States are in their sphere as independent of
the general Government as that Government with-
in its sphere is independent of the states.*
87 Educational Films Corp. v. Ward, 282 US 379, 75
L.ed. 400; Colorado v. Symes, 286 US 510, 76 L.ed. 1253;
Beal v. Missouri Pac. R. R. Co., 312 US 45, 85 L.ed. 577.
38 Brush v. Commissioner of Internal Revenue, 300 ‘
US 352, 81 L.ed. 691; Buffington v. Day, 11 Wall. 113, @
; 20 L.ed. 122; White v. Hart, 13 Wall 646, 20 L.ed. 685;
; Ableman v. Booth, 21 How. 506, 16 L.ed. 169; Dodge v.
: Woolsey, 18 How. 331, 15 L.ed. 401; McCulloch v. Mary-
land, 4 Wheat. 316, 4 L.ed. 579.
4
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35
Although defenses of laches, estoppel and pre-
scription may not be urged by individuals against
a state or the Federal Government because the
sovereign is immune from such a plea, the rule is
different where two sovereign powers are involved.
In Phillips v. Payne, 92 US 130, 132, 23 L.Ed. 649
this Court said:
“The law of prescription applies to nations
with the same effect as between individuals.”
Estoppel, like prescription, resting on consid-
erations of fairness and justice, has been applied
between sovereign nations. See Lauterpacht, Pri-
vate Law Sources and Analogies of International
Law (London, 1927) 203-207, citing seven import-
ant international arbitration cases where estoppel
was made the basis of the award.
In the case of Maryland v. West Virginia, 217
U.S. 1, 42, 54 L.Ed. 645, 658 this Court said *’:
“As said by this court in the recent case of
Indiana v. Kentucky, 136 U.S. 479, 510, 34
L.ed. 329, 332, 10 Sup. Ct. Rep. 1051, ‘it is a
principle of public law, universally recog-
bE
Ry
39 See also: Arkansas v. Tenn., 310 US 563, 570, 84
L.ed. 1862, 1366-7; New Mezxico v. Texas, 275 US 279,
298-9, 72 L.ed. 280; U. S. v. Chaves, 159 US 452, 464,
40 L.ed. 215, 220; Guaranty Trust v. U.S., 304 US 126,
134, 82 L.ed. 1224, 1229.
49 See also: Rhode Island v. Mass., 4 How. 591, 639,
11 L.ed. 1116, 1137; Louisiana v. Miss., 202 US 1, 53,
50 L.ed. 918, 932; Indiana v. Kentucky, 186 US 479, 510,
34 L.ed. 329, 332.
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nized, that long acquiescence in the possession
of territory, and in the exercise of dominion
and sovereignty over it, is conclusive of the
» 99
nation’s title and rightful authority’.
It will thus be seen that the law of nations on the
subject of prescr’tion, laches and estoppel has.
been applied by ti Jvurt to the sovereign States
of the United States. Louisiana is entitled to urge
these defenses here and to give evidence on these
matters.
IV. JUSTICE AND CONVENIENCE REQUIRE TRIAL IN
FEDERAL COURT IN LOUISIANA.
As set forth in Louisiana’s opposition to motion
for leave to file complaint, the evidence which it
proposes to introduce in the event of a trial of its
controversy with the United States consists of the
testimony of witnesses and the introduction of
evidence of numerous maps, charts, diagrams, for-
eign treaties and documents which this Court will
not judicially notice. The State will also prepare
and have witnesses to testify concerning the rec-
ords of the State Land Office, the Department of
Conservation, the State Mineral Board and the rec-
ords of other State offices. It would be a matter of
great expense and inconvenience if the State of
Louisiana were obliged to transport its witnesses,
documents and other exhibits to Washington, D.C.
The State of Louisiana is therefore entitled to in-
sist upon a hearing of the issues involved in a Dis-
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37
trict Court of the United States having jurisdic-
tion in the State of Louisiana and located therein.
As a general rule an action must be brought in
the State and in the county or parish where the
defendant resides, and this principle of law is or-
dinarily embodied in statutes which fix the venue
of the action (92 CJS 777 and cases cited). The
privilege conferred on a defendant of being sued
at his domicile is a valuable and substantial right
and those exceptions which have been made to the
rule grow out of some special need for a relaxation
of this encient requirement. Ordinarily a defend-
ant should not be put to the trouble and expense of
transporting his witnesses and exhibits to some
distant forum.
One of the purposes of amending Section 1251 of
Title 28 of the United States Code by the Act of
June 25, 1948 was to permit concurrent jurisdic-
tion in the District Courts of the United States in
controversies between the United States and a
State so as to provide a more convenient forum
for the trial of cases of this kind. The opinion of
this Court in Georgia v. Pennsylvania R. R. Com-
" recognized the convenience of the parties
and witnesses as one of the reasons why the Su-
preme Court should not exercise original jurisdic-
tion in certain cases where a district court would
be a more appropriate forum.
pany,
41 324 US 465, 89 L.ed. 1067.
38
The complaint and the brief i: support of plain-
tiff’s motion for leave to file it both indicate that
the United States intends to rely on questions of
law and does not intend to offer oral or documen-
tary evidence. The Court therefore need not con-
sider the convenience of plaintiff as any factor
affecting the venue of this action.
V. CONTROVERSIES SHOULD NOT BE DECIDED IN PIECE.
4
MEAL FASHION.
Plaintiff’s motion and complaint in this case at- :
tempts in piecemeal fashion to dispose of the con- :
troversies between the United States and the State
of Louisiana over the submerged lands and re-
sources within the boundaries of Louisiana.
The complaint asks this Court to determine only
whether the outer boundary of Louisiana recog-
nized by the Submerged Lands Act, is located
three miles or three leagues seaward from Louisi-
ana’s coast line. That is asking this Court to do a
vain and useless thing.
QT RETA 5
The locality of the area belonging to Louisiana
cannot be fixed without determining both lines, _
which constitute respectively the inner and the
outer boundaries of the marginal belt. The ju-
dicial action sought by the plaintiff would waste
the time of this Court in a partial and piecemeal
and wholly inconclusive determination, that would
leave still wholly controversial and unsettled the
major essential factor in the location of the area
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39
in question. A determination either that the mar-
ginal belt extends three leagues from the coast
line, or that such area extends three miles from
the coast line, does not locate even the outer
boundary of the area in the absence of a determi-
nation of the location of the coast line itself.
Act 33 of 1954 was passed by the Legislature of
Louisiana to redefine and delineate its coast line
as the line of demarcation between the inland
waters and the open sea as fixed by the United
States pursuant to the Act of Congress of February
19, 1895, 28 Stat. 672, 33 USC 151. This coast
line meets the definition contained in Title 43 of
the United States Code, Section 1301, 67 Stat. 29
wherein the term “coast line” is defined as the
line of ordinary iow 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.” However, the Federal Govern-
ment takes the position that the coast line of Loui-
siana follows the shore of the Gulf and the various
indentations that mark its mainland. If this con-
troversy were to be solved on the basis of the
Federal Government’s contention, then consider-
able testimony must be produced to show just
where the shores of Louisiana were at the time of
its admission into the Union. This is so because
the same section of the Code defines the term
“boundaries” to mean the seaward boundaries of
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40
the State “as they existed at the time such State
became a member of the Union.”
Considerable changes have occurred in the shore
line of Louisiana since the year 1812. In some
places the shore line has receded several miles
whereas in others it has been extended by ac-
cretion a substantial distance seaward. Louisiana’s
coast is highly irregular. The gulfward extremities
of such coast consist of innumerable sand bars,
shoals, reefs, islands, peninsulas, bayous, bays and
marsh. It is difficult, if not impossible, to determ-
ine on mere sight just where the open Gulf begins.
Winds, tides and other physical forces have
brought and are bringing about frequent changes
in these areas of shallow water. In any case a de-
termination either of the width or the location of
the coast line, or both, will require the taking of
evidence and the introduction of numerous maps,
charts, official and historical documents. It will
also require the testimony of surveyors, historians,
and other experts.
This Court has already signed an order to permit
the testimony of Dr. James P. Morgan to be taken
in pursuance of Louisiana’s petition, Jn the matter
of the Perpetuation of the Testimony of Dr. James
P. Morgan, No. 14, Original, October Term, 1955.
Such testimony has been taken and is on file in the
office of the Clerk of this Court. But Dr. Morgan’s
testimony covers only one of the many issues in-
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volved in the boundary dispute between the United
States and the State of Louisiana. Louisiana has
other witnesses whose testimony is indispensable
to a proper disposition of the controversy afore-
said. These matters cannot be properly presented
to the Court except through a trial in a District
Court of the United States located and having
jurisdiction in the State of Louisiana.
Plaintiff’s brief indicates an urgent need for an
adjudication concerning the width of Louisiana’s
marginal belt and the reason for this, according to
plaintiff, is the need for exploration and develop-
ment of the mineral resources of the area. Such a
purpose cannot be accomplished by a piecemeal
decision of the controversy.
For the reasons set forth herein above the Court
should deny plaintiff’s motion for leave to file its
complaint.
Respectfully submitted,
FRED S. LeBLANC,
Attorney General j
State of Louisiana
2201 State Capitol
Baton Rouge, La.
JOHN L. MADDEN,
Assistant Attorney General
State o7 Louisiana
2201 State Capitol
Buton Rouge, La.
BAILEY WALSH,
Special Assistant
Attorney General
State of Louisiana
1346 Connecticut Ave., N.W.
Washington, D. C.
W. SCOTT WILKINSON
L. H. PEREZ
GROVE STAFFORD
Of Counsel
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42
PROOF OF SERVICE
Ma a Se ae , one of the at-
torneys for the State of Louisiana, defendant here-
in, and a member of the Bar of the Supreme Court
of the United States, certify that on the........ day
___ DUNT Hee Ntsc , 1956, I served copies of the fore-
going Opposition to Plaintiff’s Motion For Leave
To File Complaint and Brief in support thereof,
by leaving copies thereof at the offices of the
Attorney General and of the Solicitor General of
the United States, respectively, in the Department
of Justice Building, Washington, D. C.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.