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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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.

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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

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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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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.

—

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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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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

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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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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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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.

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Opposition Brief — UNITED STATES v. LOUISIANA (No. 0026-74) | Frix