Appendix — UNITED STATES v. LOUISIANA (No. 0026-74)

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Supreme Court of the Bnited States

Ocrosi® TERM, 1974

UNITED STATES OF AMERICA,

Plaintiff,

STATE OF [OUISIANA, ET AL.,

Defendants.

eel eee

APPENDIX 1 TO THE EXCEPTIONS OF THE

STATE OF LOUISIANA TO THE REPORT OF

MAS’‘ER FILED JULY 31, 1974,

PAUL M. HEBERT,

VICTOR A. SACHSE,

GLIVER P. STOCKWELL,

FREDERICK W. ELLIS,

WILLIAM E. SHADDOCK,

Special Assistant Attorneys

General,

NORA K. DUNCAN,

Staff Attorney,

t of Justice,

State of Louisiana.

TABLE OF CONTENTS

NE TIN oo hossk de wie vsmgebrnnde nadtancwateuniihuaen tubes i-xxxi

IG TINIE, on cess nscne-nsgeceeninsnanoseneessnstnccsnsneasnpiencsenss i-xiv

Cases ...... Se FO ALAS ed sly PME DOOD ORS Deen y AR re XV-XVii

eee NE T POEIOD oan ois evis case ccccselirns XVii-xix

LIE ELLE OLE AR SRN LEE Xix-Xxi

meee CMEM ous So spnacneuedwarorees XX1-XXX

United States Exhibits ............................ XXX-XXxXi

Errata to Louisiana’s Motion and Memorandum

Les Re tate CNR ie Oe Cerne RS ee 1-3

Memorandum in Support of Motion to Clarify,

Amend and Supplement Findings of Fact

and Conclusions of Law in the Draft of

the Proposed Report of the Special Master

RN Be I ecccine sas reps estes cps namiasinetibgesasnaces 5-57

Appendix A to Louisiana’s Motion and Memo-

randum Dated May 13, 1974 ............00.....4 59-126

Table of Contents by Subject Be megminrictenio hale 59

Tee Te Be A noackiae enn 60-62

SS OE FR Bo ecco cvcesnnssorsces 63-126

Appendix B to Louisiana’s Motion and Memo-

randum Dated May 13, 1974 (Syllabus of

yg eg | AREER een aie Seo Detar een 127

Motion to Clarify, Amend and Supplement

Findings of Fact and Conclusions of Law

in the Tentative Draft of the Proposed

Report of the Special Master (Proposed

ID ei pcisacitocicterseonen cid pode plan hnroesons aioe 129-313

FR AAP A OBIS ERT TRA TNE 9 ee HE

INDICES TO MOTION TO CLARIFY, AMEND

AND SUPPLEMENT FINDINGS OF FACT AND

CONCLUSIONS OF LAW IN THE TENTATIVE

DRAFT OF THE PROPOSED REPORT OF

THE SPECIAL MASTER AND MEMORANDUM

IN SUPPORT THEREOF

Subject Index

Page

Acquiescence to Louisiana’s claims

by foreign governments

m Canee ay ........:........... 42, 46, 208, 209

in Kast Bay ........ 17, 20, 46, 163-165, 168, 169

in other Mississippi Delta

BAYS ........ rein et aah ot 17, 46, 182,183

by the United States

in Caillou Bay ............ 36, 44, 46-47, 208-210

in East Bay ........ 17-18, 46-47, 163-165, 168

in other Mississippi Delta

HNC RISER EIR aT Sse a 182, 183

Acts of Louisiana

concerning Caillou Bay

assertion of ownership and

ERE eT 31, 42, 46-48, 205, 206

provision for leasing ..........0......0.......... 47, 206

regulation of oyster fishing ...............47, 205

regulation of shrimping —................. 47, 206

concerning Fast Bay

assertion of ownership and

Se 18, 27, 31, 32, 155-156, 157

assertion of ownership of

salt water shrimp ........... Waceapeniiee 157

prevention of pollution —.....000000000000..... 160

regulation of oyster fishing ....20-21, 27, 155

Page

regulation of shrimping -.................. 20, 157

concerning other Mississippi Delta Bays

assertion of jurisdiction -..... a nde Revd 180, 181

I Oe I oo sariicp nck eve icceccen ss 180, 181

regulation of shrimping ............................ 180

concerning Shell Heys ..................:0<...seces 211

Arrests of foreign vessels by Louisiana

Br NE ie nin eck nos 18, 160

in other Mississippi Delta Bays pS eae SEE 18, 181

Artificial modifications made at

East Bay see East Bay

PARTI Tiss rte ea apie cere choscesp sel 276-283

Assimilation of islands and low-water

elevations to mainland

islands (other than mudlump islands )

Bi PII TIN si ioeccccccdeastnisecsenentibcesn 291-300

mudlumps

I Fine cacts ici ee nccatanbernas 176-178

os ook csi cess 254-258

re I wake scaic ccesseceetcgtieess 260-262

ee I ne eas 231-234

ne co as 264-269

IR cnc crt nr a eetrecnos 308-312

Bays (see also Juridical Bays, Missis-

sippi Delta Bays, specific proper

names and United States)

closing lines

international law principles

oe |. Geant rere aC 130-131

qualification under Convention on the

Territorial Sea and Contiguous

Page

Zone see discussion of particulars

under each bay or Convention

ten-mile limit ........ 8, 10-11, 14, 132, 186-187

twenty-mile limit ........................ 11, 1382-145

United States position, 1918-

EE coe aneech i ateedds Se cme tiawaks 12, 132-145

interdistributary growth cycle ................ 174-175

islands within, treatment of -................... 245-248

land-locked characteristics

see also historic references under

proper name of each bay

Cook Inlet, comparison to East Bay see

East Bay

Corps of Engineers

artificial changes made at East Bay ........ 145-150

Cowhorn Island, existence of _.......... 53-55, 229-231,

237-241

Disclaimers by United States

absence of in Caillou Bay to

SELMER SE De RS 37, 208-210

effect of

as discussed in Cook Inlet case... 16

Le -* Mil

SRE 8-10, 15-16, 170-172

Mississippi Delta Bays ............................ 184

East Bay

acquiescence to Louisiana’s claims

see Acquiescence

Page

acts of Louisiana concerning see Acts

artificial modifications _......................... 145-150

changes in configuration (historic) ........ 145-150

comparison with Cook Inlet .................... 19-21, 26

deterioration of Joseph Bayou land-

PRS en ph a de 51-538, 250-254

disclaimers by U. S. see Disclaimers

historic economic exploitation by

surrounding residents ................ 150-154

historic geographic integration with

surrounding landforms ....14-15, 150-154

historic need for control over by

surrounding residents ................ 150-154

juridical bay qualification

I I riots prcastecmiccvarecnenee 8-10, 129-132

IE Sori ein oe seccanpsnaszastsarinaioncs 9, 132-145

closing line A to 1950 _.............. 12, 220-221

closing line A to 1956 _....... 9, 14, 53, 221-224

closing line B’ to 1962 ................ 53, 225-229

closing line C to 1969 .......0.2..0022.0....---- 231

closing line A to present .-................... 234-236

closing line B to present ................ 52, 236-237

closing line B’ to present ........................ 241

closing line C to present -................... 241-242

closing line D to present ........................ 242

natural entrance points ........................ 12, 220-221

semicircle test requirements see

Semicircle test

sovereignty, exercizes of by Louisiana

see Sovereignty

United States, recognition of the inland

NI gh sins chvcadadavinsconeell 8

water area measurement see Semicircle test )

ee,

vii

Page

Florida Keys

compared to Isle Derniere ............ 55-57, 297-300

compared to Shell Keys .......000222000000000.... 210-220

Garden Island Bay

historic claims see Mississippi Delta Bays

mudlump assimilation problems ............ 264-269

qualification as a juridical bay -.............. 269-271

Headlands

MAMI TONNE icsiccscssistantcebalebticorheand onus auoacane 276-283

DI TI Fis scoveitincccos rcaedstnerneatld 285-286, 304-305

I Sens aniecennel 220-221, 225-234

Inland waters (see also proper names

of bays and United States)

Caillou Bay, status of waters

admitted by United States ...... 36, 44, 184-200

claimed by Louisiana ........................ 204-208

recognized by United States

PP ANS oc es, 184-200

claims distinct from territorial

Sane ernie aerencs. 6-7(fn.), 163-170

East Bay, United States recognition —.............. 1

ER eee a La eR 210-220

I I oss paca chien ica eciieeiensicea 25-28

International Law (see also Convention

on the Territorial Sea and Contiguous

Zone )

Vili

Page

bay closing lines

er 130-131

U. S. position, 1918-1948 12, 182-145

principles recognizing Caillou Bay

2 2 PR. 21, 184-200

territorial waters distinguished from

MPP WGN anos cuecucsmsccce, 21-30

Islands

assimilation to mainland

Sa 291-300

I Yes 176-178

at Pass a Loutre ........................ 260-262

Te EO orc Ss 231-234

at Southeast Pass 2.000000... 264-269

OmMMNNER OE, GETOOE oo esisci icons coc 264-269

Wain eats caine em 308-312

within bays, treatment of ....... 245-248

Isle Derniere

assimilation to mainland ........... 291-297

comparison to Florida Keys ............ 55-57, 291-297

Jetties

Rie Fe a eS 11, 145-150

mt coment Paes 11, 145-150

Juridical Bays

SN, RE oie a cel oes 276-283

as determined by Convention see

Convention on the Territorial

Sea and Contiguous Zone

rc! en ETT 308-312

OI ig oda aw Beiicdcatens ecsacac ds. ..262-264

eee I isin esse ie ec 258 |

Caillou Bay see Caillou Bay

Page

delimitation, synopsis of U.S.

policy prior to 1948 —..00.......... 132-145

East Bay see East Bay

Clapton TRIOMR TORY 05a oess en ecco 269-271

ere ie Ris art eee eee 269-271

Jurisdiction (see also Sovereignty )

acquiescence in assertion of

RMNMNE BIN voicicniins csensesevonsas. 36, 44, 47, 208-210

eas lenin cas.) ce 17, 47, 163-170

Mississippi Delta Bays ........................ 182-184

IE WI hn cae sucinticnaitieieten 210-220

disclaimers to by U.S.

RNIN NE occa Saar ennsnsee aisalaneteies 37-39, 210

MN oa rantan comes ticans 8-10, 16, 170-172

Mississippi Delta Bays ...........................- 184

exercize by Louisiana since 1812 in

Case BAY oon... <n ceos 35, 47, 204-208

open, apparent exercize of in

TG I hese adic aceasta 18, 27, 163-170

point-to-point basis of in Mississippi

BPM TIONG nn dei caress 45, 47, 179-182

Land-locked see Headlands

Louisiana Acts see Acts of Louisiana

Low-water elevations

assimilation to mainland

I I oo vines cctnirtctnicceen 254-258

De Fe B TID =... cccteenissncccins 260-262

existence of at South Pass,

II. 5-Sa,0ahcavtaintelawsecereeccaricn ant 275-276

within bays, treatment of —...................... 245-248

Maps see Set of 54 Maps

Page

Mineral leases

I i a paca acs cdeciaresitctacae ics 204-208

eh arch tale lon ude 154-162

Mississippi Delta Bays —.......0000000000000...... 179-182

Mississippi Delta Bays (other than

East Bay)

acquiescence to Louisiana’s

claims see Acquiescence

disclaimers of U.S. see Disclaimers

geographic configuration prior to suit ....174-175

historic economic exploitation by

surrounding residents —............... 178-179

historic geographic integration with

surrounding landforms ........ 14, 178-179

historic need for control of by

surrounding residents ................ 178-179

jurisdiction asserted on a point-

I I chicas y ici iciscsisechonaonnn 179-182

Mudlumps

assimilation to mainland —....00000000..... 174-175

Oa I I doses agarlcx Siecuniweanncs 254-258

Se I ssi cncssanests 260-262

at South Pass (#93) .......0000000000000.... 231-234

i CN. PROB: ooo se 264-269

existence of at South Pass

RU lees pesca pach ws Gyo caden aoekane eee 273

NOE RENEE PERLE NC ler NOOR ay 271-273

Natural entrance points (see also Headlands)

bisector-of-the-angle method

of determination ........................ 229-231

East Bay

elosmn tine A ......:................. 9, 11, 14, 220-221

I CEO Sic cs 53, 229-231

Page

North Pass, assimilation of

low-water elevations ................ 254-258

| O

Overlarge bays see Bays

Oyster leases

hi cat ccncinaliacscwanremmanene 47, 204-208

eR ae Ee oO eee 20-21, 27, 154-162

Mississippi Delta Bays ..........-....-.----------- 179-182

I Tianna on ann hese sne nese tense ees eee ees 258

Planimetry, methods of for meeting

Semicircle test

Method 1 (known as conservative

I fos cations sgeteni uadasnace 242-245

cn cred iereinsieius 51-53, 236-237

es Nios canap anaanenn 51-53, 234-236

Pollution control in East Bay ....................... 154-162

Protest, absence of by foreign

governments after arrests ....20, 165-170

Redfish Bay

historic claims see Mississippi Delta Bays

mudlump assimilation ....................-.....--..- 264-269

qualification as a juridical bay ................ 269-271

Resurvey by U. S. in 1970, effect of ........................ 285

Semicircle test

East Bay meets test

closing line A to 1950 _......0....022.... 12, 220-221

closing line A to 1956 ........ 9, 14, 53, 221-224

closing line B' to 1962 ................ 53, 229-231

. — ee ee POT ae ee ee

Sm ay ad ia ca ta Wilh iietaie aaa. : vw. \

xii

Page

closing line C to 1969 000.00... 231

closing line A to present —.......0.0000...... 234-236

closing line B to present ................ 52, 236-237

closing line B' to present —..........0000........ 241

closing line C to present 0.0.00... 241-242

closing line D to present ............... Hates 242

methods of water area measurement

(see also Planimetry )

conservative (Method 1), use of ........ 242-245

treatment of tributary waters

POTN Gas hesencte Saaesncce she snas 248-250

U. S. position on 1918-1948 0020... 132-145

Set of 54 maps

correctness of land forms shown

ERNIE DE PE a 283-284

distinguished from charts ........ 273-275, 283-284

Rs ye eae ite ee eT 273-275

NINN SI ce suis ccnasndoweconett 200-202

omissions at Caillou Bay ......00.0000.... 287-291

Shell Keys

assertion of jurisdiction by

oe: 210-220

inland water status recognized

by U. S. to 1961 ......... Lacetcss 210-220

Shrimp

hn, ESTEE ES AON EE RADNER epee ALD 154-162

restrictions on fishing

on cn yee 47, 204-208

LS EEE eerie 20, 154-162

Mississippi Delta Bays ........................ 179-182

South Pass

at ee ACO eRR-PRE YO E OT AE 145-150

mudlumps

OS RE ea een ee er inar te ieornet Enae, 273-279

xiii

Page

existence of

SORE TIE SEES NRL Dh HER ene 273

eee seston ohne 271-273

eit en T SENI occice cscs coin cpmomrssinatngstaks 145-150

Sovereignty, exercises of by Louisiana

Caillou Bay

enforcement of jurisdiction ........ 6-7(fn), 31

42, 46-48, 205-206

fishing licensing ................ ania ical 205

mineral leasing ................ 6-7(fn), 47, 206

CUBE TERI io. ccvacinces 6-7 (fn), 47, 205

SF TOUR so-so 47, 206

East Bay

arrest of foreign vessels ....18, 20, 31, 32, 160

comparison with Cook Inlet case......... 19-21

Siskin THOM none cteecs, 20, 159

mineral leasing ........ 6-7(fn), 18-19, 160-162

oyster leasing ..6-7(fn), 18, 20-21, 27, 47, 155

OUR GOMEON «noi neeensedenrnnrrncnesanenes 160

shrimping restrictions ........................ 20, 157

use of armed force to enforce ..18, 27, 159-160

Mississippi Delta Bays ,

arrest of foreign vessels .................... 18, 181

Tig TI nosis ince 181

WII NN a oc cdc sscccns wtrarten 181-182

UIE UN a ct acic cece ncccenins exeretners 179-180

shrimping restrictions. .......:.........-.-.-:..... 180

Subsidence - deterioration of Joseph

Bayou landform ............ 51-53, 250-254

Territorial waters, distinguished from

inland waters .............--- 21-30, 163-170

Xiv

Page

Tributary waters, use in water area

measurement .................... 49-51, 248-250

United States

absence of disclaimer to Caillou

Bay claims to 1968 ......... .......208-210

acquiescence to Louisiana’s historic claims

acetal cci se nupes thesis 163-170

Mississippi Delta Bays 0... 182-184

disclaimers, effect of

casa csexstaenanthonenteryeness 210

TSS ES ae le 170-172

Mississippi Delta Bays ............................ 184

position as to bay closing lines,

Re ener 9, 13, 132-145

prejudice to Louisiana’s claim at

Cailiou Bay shown....35-37, 41, 200-202

recognition of the inland water status of

RSIS eet kn 40, 184-200

MI Si ace cscs ras a EE eee 210-220)

resurvey in 1970, effect of ........................ 285

synopsis of policy re: juridical

bay delimitation prior to 1948 132-145

U.S. Army Corps of Engineers see

Corps of Engineers

WwW

Water area measurement see Semicircle test

Well-marked see Headlands

Citations

CASES:

Page

The Anna

gl OR SB.) ee ee ae 177, 178

Louisiana Boundary Case,

See United States v. Louisiana, 394 U.S. 11

Louisiana v. Mississippi, 202 U.S. 1 (1906) ........ 178

Manchester v. Massachusetts, 139 U.S. 240

Re italien csigeknndsavddussvsuncritnb pm menines 65, 188

North Atlantic Coast Fisheries Case, (Great

Britain v. United States) (1910) Hague

Court Reports ........ 10(fn), 14, 67, 130, 132, 279

Pollard’s Lessee v. Hagan, 44 U.S.

(3 How.) 212 (1845) ..6, 7(fn), 95, 155, 179, 205

Post Office v. Estuary Radio, Ltd.

(Thames Estuary Case) 3 All.

i ee I ED ool vis ccop cues wnanavveses 49, 245, 249

Skiriotes v. Florida, 313 U. S. 69 (1941) ..... as 157

Stetson v. United States, No. 3993

II can oe akc eacsasiacnneniokeonns 29

United Kingdom v. Norway,

(Anglo-Norwegian Fisheries Case) I. C. J.

Reports (1951) ............ 10(fn), 33, 141, 142, 143

United States v. Alaska, (Cook Inlet Case),

Civil, No. A-45-67 (1972) ....13(fn), 16(fn), 17,

19, 26, 171

United States v. California, Report of the Special

Beer CTOGEY vein n-nonane 77, 100, 102, 104

United States v. California, Brief for the United

ei aa m *

xvi

\ Page

States in Answer to California’s Exceptions

to the Report of the Special Master, No. 5,

A Seng NE eke esheets isi Cake pane ee 119

United States v. California, 381 U.S. 139

(1965) ....10(fn), 28, 41, 121, 126, 137, 138, 143,

170, 293, 297

United States v. California, California

Supplemental Decree, 382 U.S. 448

2 | epee RC en th ecb ahi eae et 122, 227

United States v. California, 332 U.S. 19

Lig 1 ERE TA SSRIS SM a ET 3 8, 44

United States v. Florida, Report of Albert B.

Maris, Special Master, No. 52, Original

) (1974) peste teste reegsa ene a) 56, 91, 126, 188, 213, 218,

220, 269, 297

United Statés v. Louisiana, 340 U.S. 899

RR Si csisdes ts nace EES LOE EAE DE POT 104, 107

United States\v. Louisiana, No. 11, Original, May

15, 1958, Brief for the United States in Sup-

port of tion for Judgment on Amended

OI i a ee 88, 193, 212

United States v. Louisiana, et al., 363 Ly 0

F, .| Wenn Hie URE gees: 37 (fn), 95, 96, 121, 124,

126, 155, 193, 205, 213, 297

United States v. Louisiana, (Louisiana Boundary

Case) 394 U.S. 11........ 1, 7 (fn), 12, 14, 15, 16,

21, 22, 24, 25, 27, 34, 35,

36, 49, 50, 51, 126,\170,

175, 201, 243, 244, 247, 249,

254, 282, 290, 298, 300, 305

XVil

Page

Brief of the State of Louisiana in Support of

its Motion for Entry of Supplemental

eres Ne So psataenty cs 152, 271

Brief for the United States on Cross Motions

for the Entry of a Supplemental Decree

as to the State of Louisiana (No. 2)..199, 288

Memorandum in support of the Motion of the

United States in opposition to the Motion

of the State of Louisiana (1968). 37, 123, 288

United States v. Louisiana, No. 9, Original ss 50 ae

Louisiana Brief (1973) .

a ae Pe oe Stress: 200

Ve eS re een 149

To: 1, Pat 3 .......... 238, 251, 252, 253

Wen ee, Pe eS ee we 220, 223, 236

we. 2; wee beet 202

Web te eee ee he be, 177

Vea, Pet Bo = 277, 278, 280, 281

Vo. ¥, Past €:........... 295, 296, 301, 302,

303, 305,.306, 308

Vou Vill, Appadix Jo 271

Louisiana) memorandum presenting addi-

tional technical data and information

requested by the Special Master at Octo-

ber 29, 1973, conference..233, 251, 273, 291

Louisiana Reply Brief ...54, 133, 135, 190, 236,

262, 277, 280, 283, 292

Memorandum for the United States in Sup-

port of Oral Argument before the Special

aa, AM Re Mn ORR ba tel Bon ids 294

STATUTES AND TREATIES:

Alaskan Boundary Arbitration of 1904... 178

Geneva Convention on Territorial Sea and

“

xviii

Page

Contiguous Zone, 15 U.S.T. ........6(fn), 9, 29, 37,

39, 41, 42, 46, 97, 100, 101,

105, 128, 125, 130, 137, 223, 226, 230,

241, 242, 244, 245, 262, 269, 280, 299, 306

Internal Revenue Regulations, No. 60 §

OE ae ing ZERO ce eal en ee ea 137

Louisiana Acts:

lt, EST Reese ee as 155

I ois oa sedi scsessccescacesensus 155, 205

WR BN wascinccdisietoasbcicanaancc ces 155, 205

PO Oe I ois cscisas case eesicesnct. 155, 156, 205

PO I soo icccs csiecescciSescieescces 36, 155, 206

I 157, 206

MAMI ME I cisco cokscannctsaeaccnsoes cscs 157, 206

NN a ee 182

MN I ss 164, 183

I I iis ac cicnaccsesidiomeebi 157

ST ce 182

I i oes socscstccncedscuiceeccgd 180

“e adin i, 2... 2 EES Cee one 160

I ee ie 160

Eger, 180

I oo 157

__ - 3 SSE eee eae ee 160

Me OE 160

See oeeeeemneeee! 124

North Atlantic Coast Fisheries Arbitration,

(September 7, 1910) ........... 10(fn), 14, 67, 130,

132, 279

Migratory Bird Treaty Act (1918) 158

Submerged Lands Act (1953) _...... 9, 13, 36, 37, 38,

46, 125

xix

Page

United States Statutes

ok... 2. , EERE ee 164, 183

_ 2 geo Ruaiae aa EEa ereoy pivaceiaisaes 136

3. (EGS ORR Re OEE 164

I oe 164

MISCELLANEOUS:

Alaskan Boundary Arbitration of 1904 178

Billiot, Joseph ....158, 160, 161, 168, 181, 203, 207, 209

Boggs, S. W., “Delimitation of the Territorial Sea,

the Method of Delimitation Proposed by the

Delegation of the United States at the Hague

Conference for the Codification of Inter-

national Law” American Journal of Inter-

national Law, Vol. 24 (July, 1930) ....74, 76(fn),

139(fn)

a a 14

PRI, oct 271, 273, 290

ee III os Minter 282

RI Wee 154, 204

Doward, Christopher «............./........ 1... 153

Ensminger, Alan ........ 51, 52, 158, 163, 251

Hague Conference on the Codification of Inter-

national Law (1930) _.......... 13, 15, 43, 69, 100,

144,185

Lhe International Law of Bays,

M. Strohl, See Strohl (1963)

Juridical Regime of Historic Waters, Including

Historic Bays, U.N. Doc. A/CN.

4/143 (1962) 22, 23, 25, 26, 28, 30, 31, 32, 33

nc cecisinpaseria Mesias. Se REIT 282

ms © -_ — sha i en ee :

r - . stiri yt’ 208 a i oe PINE Tas teat Ase tt teh ceta Suet DE Tee iodicintete Hi -

EU AGT FLIES CEE ven

Page

Lowery, Dr. George, Jr. .................... 163, 164, 183, 211

Lubbe, Emanual Von ............ 45, 153, 158, 159, 160,

168, 176, 181, 207, 209

Measurement of the United States Territorial Sea,

By G. Etzel Pearcy, No. 1044 (June 29, 1959) 91

Melamid, Dr, .................... 231, 236, 237, 242, 254, 258,

260, 262, 301, 310311

Miller, “Scope of the Theory of

yaueoree aye (IGOR) ooo... Bir cece 13

Moore, Digest of International Law .................... 63, 118

Morgan, Dr. James O. ............ 51, 52, 146, 149, 150,

154, 155, 172, 175, 176, 203, 205, 233,

234, 248, 249, 251, 256, 264, 266, 272,

273, 277, 279, 280, 281, 283, 293, 294, 303, 310

I Ie ooo sce acl ctetas arenes 303, 304

Nunez, Samuel J. .................... 158, 159, 168, 176, 181

Ra ra ae 2a ele cee cere One ea RATT 162, 182

Proudfoot, Measurement of the Geographic Area

of the United States, Department of

Commerce (1946) ........ 9(fn), 18(fn), 20, 43, 44,

75, 138, 166, 167, 191, 192

Richardson, James ........ 203, 221, 238, 241, 266, 293

Schouest, Abraham deposition of ........ 32(fn), 45, 153,

158, 159, 181

Scott, The Hague Court Reports ........ 67, 131, 133, 279

Shalowitz, A. L. Shore and Sea Boundaries,

Xxi

Page

WOR Giciiciccaas 44, 49, 50, 77, 107, 109, 111,

137, 138, 141, 192, 193, 197,

221, 225, 227, 235, 236, 242, 248, 279

isis Nolatntidomcdn cae. 152, 176, 286, 287

I Ee I heck tee ee ee 296

Strohl, M. The International Law of Bays

PEE ic ahomhnes scan jecadant. . Sedan nk ah 77, 225

Truman Proclamation of 1945 162, 182, 204

Whitaker, Philip 2.0.0.0... 231, 236, 237, 242, 258, 260,

282, 303, 305, 311, 312

Whiteman, Digest of International Law.._63, 78, 79,

81, 83, 84, 85, 86, 87, 91

Ty POE le soa a es 240

Yearbook of the International Law Commission

SL a EAE SSN Ie ET, 86

Oo ccccege, SEES oN ey AE TET ES ety GAM sc) 84

crete eC RE Bo OIE D tie 79, 81, 82

UN sites ea rer Ne te 78, 81

Exhibit References

5S. Ee Rare CONS TW; 172, 175, 251, 280

CS ee DARE 172, 174, 175, 251

BR TW ssi cavdcsuenk: 149, 176, 231, 232, 233,

260, 271, 272, 273, 274

BG sac ee 172, 248, 256

La. Exh. 8 ........ 153, 154, 160, 176, 177, 181, 231, 236,

238, 249, 250, 251, 254, 260, 262,

264, 269, 273, 275, 283, 284

Page

DPI tis ica Sah Gn ceed 51, 251, 253

iia MIMS MIE cianiigeslphinicensegeacccteeek 146, 176, 233, 260, 262,

266, 271, 272, 273

as MRI TEAR ssrechestinslbcatasoac us ccxoenen a emeratcumeal 176, 273

ene anes 176, 262, 264, 269, 272, 273

Ne RRO Senter MIU TR AOR Ty 262

HR I TIE ty scctnbinscensdcvsctthanc cacsactecsaeakoren tai 262

Be SN BI rcs ctsgielarnsieialicnci eee 262

TE RAE oer re isan ee Oe on eh 262

| Te Gy i ieee See RDO agree ert. 262

Re TE |. PAR Rae eR reeks ws ope gate. TR pth ee. 171

Bac MMe, Ae sn Soresccca as neni es haha aes 152, 176

i. | . mnceee 134, 220, 275, 276, 283, 284

Bis Rs Bases aoe 8, 130, 153, 251 283

Fe : +.) Senne 9, 11(fn), 132, 133, 134, 144,

145, 146, 149, 150, 152, 155,

156, 172, 174, 220, 221, 223,

224, 225, 235, 244

Bi as I scsi eh coed ene ee 177, 262, 264

Bees I RS co ce caus ncceettd conti Ties 244, 258

Bil SE ES ries sadenconctehcs.oniecndineu td baapcwosmecseonees 258

BU TI I cto sors decors Sonatas abnceceesn eae 163, 183

iy eat WMD etc cxeesctipn scan canara eens Semcksnacdint 163, 183

Bi INS ass Dina Nila cicredacecnncchinseops screenees 211

Ei Ps INO sen ckpincritcesiwcas ann Neees 164, 183, 211

xxii

La.

XXlil

: Page

Se Sa, AACR MRE ee Ce 164, 183

PM iis rien pel ctnctineieesicacons eee ae 251

i TERM Had OB EH 251

| en Cea ee ee PANN EET NEE Et 251

eS 188, 202, 203, 285, 286, 287

291, 293, 294, 299, 303, 304

PMS We gin chon skchanrpon it 9(fn), 18(fn), 167, 186, 300

i 8 2 eee 21, 44, 75, 138, 140, 166,

167, 171, 191, 192, 212

sag cy Ee Ee LE ORC RSE OS © Rea 1 Ee 169

set pn Me na OOP RO IAN SAR BCN de, OE 201, 206, 211

MRED be 156, 179, 205, 209

re ENED hi hot CO en cee 156, 180

WS MOOG hoc ee 156, 180, 205

WU EE lnc b i ee 156, 206

Sas Re ceo Sons EE aR EE 156, 180, 206

cer a) SS ENS aa ee 157, 180, 206

ek: Ny alee ee eR sare, 157, 208

scien hb, kA RN ene 157, 180

TE occ a en ee 180

Pe Pe oe ue en 157

ME - AON REAR Rss MRS 17(fn), 162, 208

I ir See ee de eee 160

oe th pal EE AAP ete aa ea He 180

cu erage OC EA RRC TEE es EF: 180

XxXiv

"gy - CRNROaeh e E REeRIp eS reine TNS

SERRA Pee ire eee anemone

a Sh aniininndnteedltor OOS

i nS a sian siniaaoanigiiand

Nee ee sakaninmansioniinayuidaiennnpacbsadahel

I I age denya ha sgedax cries socesincsnunvenicoseanend

SN a aio dar cat atucandnannntsosonnserennencntecns

Bet IRS I cchinsevanrdesnsese Se Ea Sey cat dear haba 6

DRAIN SEE SAP OL aca ASS I OE EE OPO

NE oo hence cays asbecuevisnanedanee-petsarcanaead

I eS is a aes aan eamineesainneeaneonebnantel

er ie co aa ot accion ecennntensencascesns

TE ERR RAVE ences Oe Reade ieetcertencnh nerereeea Oe

TN) ERIE SEINE neice ented Ls AON anne:

Ns, SIRI SRST Ree ae ener Leena ae as 201, 208

De i a a aa 163, 177, 182

Se | eae ue ee 244, 277, 281, 282, 283

NE aR I AER 233, 271, 272

RR RN IN gis sirasnscttaco.-axessstenSotcdansgecen misils cee 273, 274

I a ia lasls canmeaessi deabeenteoiemsanis 176

ae II itn a, nd anicanianencniomaddynenanacenieonees’ 238, 241, 275

La. Exh. 124 ....151, 176, 238, 239, 275, 283, 284, 285

TN I II ccs iene cckcansnennsdccacmienioetionss 234, 249, 250

Bi I MI siienienssccocmiince 188, 204, 206, 285, 291, 293

FN NU aritcitrdensiciatecns non cnndnnwkiiesdieesnnspeieniccmetiend 203

XXV

Page

ag onapaiiansiniersiinpwessesabainaseele 203

i acids 5065 > sos achneerentoacdsnparinmeranmesvoratane 203

I oan gs weratidascvies mudnacineainos oie 203

8 SSS ES Re EMER AT OR A 203

Shits doa nis Ca su deguabninpctooncanobananore 203

i risa. ghs ss sSdsa vumponscmatovselnosatneecihe oes 203

oe ae one 19, 158, 159, 160, 168, 176

DIG SIE if ck ss cs ccensccoesi 19, 153, 158, 159, 168, 181

La. Exh. 146 .......... 19, 153, 158, 159, 160, 168, 181,

207, 209

I MUI, ani as, en pee ee ea eh 19

5 eR Neo NS OE Bet] I 136, 152, 165

Bi MI BE weer ccccccceccinns 172, 180, 188, 203, 206, 291

I sd 05, FZ. Vos aden Sash ons bk eas aus 249

S| SET Lt IED FOE 63, 91, 188, 306

OR ES |: Ga aaa ere 188, 203, 206, 285, 291, 293

gS ees eed ee eS 176, 180

nf Tae Seen 146, 149, 154, 176, 260

oS SAREE See corey peed Gn SP Reaeeemrar eet 176

NE IE ictal ce acoso ond ouaboetoes 176

ANE ae Ree NG Ra eO Ie 176, 256

I NY hoa sda aac aec dsbuarctk aa nskecabgibi an ocms i 176

a a ee 151, 176, 256

oe ee 176, 275, 276, 283, 284

pce tec cara Sh OES RS 176, 275, 276, 283

La.

NI te hahaa hecactensasn ck 176, 260, 275, 276, 283

La.

» La.

La.

XXvi

Page

Pas eer encene 151, 176, 256, 275, 283

RT I goes a ogress cok ead tea cear 154, 176, 180

RRS RE en pean 146, 176, 180

A MENT aaa sabcxestded eevenacicancKeingcogaaios 188, 285, 293

MS IR oss seal ts Saiccica nese cain'-ssicnaliea tances een eee 136

SY BEN fiddstes tat Riuikiwncscipitccbenceteeentoteicasnere 193

MS MUNN Siti hs oins sas aciavasevabesoreteduionoacerensaiated 146

Mae. 276 ..1..2..... 37, 41(fn), 96, 99, 101, 103, 137,

138, 187, 194, 196, 197, 198, 216, 217, 218, 288

Exh. 180 ........ 152, 225, 226, 227, 229, 230, 231, 244

ge RADY ce dae Se Miu peta trad Lien HOE 5 294

eR Ra SIR saa oy ee Ream aw aCe 301

a AA ceceilean ec ache eet MO Al ARS 271

Exh. 185A 205

RE. Sage RA CGA len ieee ahr meen ee

Nga 22 Eire aD eel tick ..285, 291, 293

a ROAR Oe RSI TN ONES OD 296

I tA vi ooo ct nacecradcnupn ck craclentrandtcacser 273

2 EE | _Seeemenn D RRO UNae ED ae line Sate TRL Ne) Pat BO Ios 251

NES a epee ee 244, 309, 310, 311, 312

NS NU voi citer cceicasinwasnocca cdl 188, 203, 285, 291, 293

Bxnm. 197 ........ 52, 222, 223, 227, 231, 234, 235,

236, 237, 241, 242, 249, 250

Ns IEP eiicsckscntbec sia ..188, 202, 205, 244, 287, 293,

303, 304, 305, 306, 308

Xxvii

Page

i Sy NN sos eet es sepnmint dsln ch oni Aomcostonabdeabmdy eenetate 193

RS. | ERR Merrit Mba ior CLE Nn stn 193

BA, NN TI ssasee da nbrandsvcdnecoosccbonh cpkpaanediar ens 188, 293

Ea) Ss MI Se Saks, Lier tannin es cndyehasevoreetberebeteeeeveeay 291, 293

eh ie IIE Sdesticsveechae svete) Lacs eciecease reno aN 238

i UD gov oh snap hunnintnanewdscctiunbescdguarelixeseie 238

Se us ARR ee Ream oaieese 188, 238, 285, 293

a Cs I oe cen aries cos patina pom taieenae een eatiat 238, 293

ER are eet ret an eis ee reach alee r 238, 293

Bi eile: MERION gS cncanicns eter nae ena orion 238

oR OM: Semcon 188, 206, 238, 285, 291, 293

ME. Beer ane me nko tram On enh Be Sie 233, 238, 267

ia. BE. Zee ............ 132, 221, 223, 231, 236, 237, 258,

279, 303

Ta a esas eine peering cee 132, 279

ac: MN AINE ss chicaicscancuceupiaevnnntcgeraaeisuedanea darpeamaaaen 258

A MU odivioecnk SC rckdsasnsccemanbbo sactuambeernnenelmenen 303

OO | PER eric eam aT 231, 236, 237

ith SIN EOI? aiccusieivessniscseinposneon Gan bhetandere ties. 279

Riis SINE: TO soctarinsiecccisasbonnsxpaloniauaccdpecsatatentaenegtel 132

Sis MG I sins elas cask cacciavesvanmnatonblaenaacamoenee 132, 180

Ss MINS IIR. iracennacjertpeartasd sone cbadioga Uae aes 132

i MUNG RIND is ircnsicsnseneissmnianoeaebannceee vacates anal 223

La. Exh. 244

OUR

XXviii

Page

BR hisses cate cccesnrrecomirdocs 188, 205, 285, 291, 293

I aes alin cceeminsniatoapacaneh tena 234, 236

SS SE ee .......152, 188, 291

Bh Te wii coesinne nso 180, 206, 285, 291, 293

BNE Ns IEE sececccereeciccricineanasvaarans 206, 285, 291, 293

Sen 180, 206, 285, 291, 293

La. Ee. 2660) «..............--... 163, 206, 208, 285, 291, 293

I NE 5 nas, 5) a cn dpteverannebiencaspanrentinonenn 199

La. Exh. 258 ........ 152, 163, 183, 188, 208, 285, 291, 293

Le. Ean, 26S ............ 188, 203, 285, 287, 291, 293, 294

NR neta crak osbpctiedaanpbet anintncjeaaeen 176

ie — . eene ener 163, 183, 188, 208, 285, 291

eI I cease tictacaonidesracit 146, 176

SRE SA in Oe ee 146, 176

Dm. eee. 24 ............ 152, 180, 188, 206, 285, 291, 293

I a ceca anscinaihics 146, 176

EE: Shea EE cia Apne ae 176, 275, 283, 285

Be, PRS EID csi ccecsniscevccecc nadansese stare ate 133(fn), 137

EE EITC EERE CORNET I REE OBE 137

I sca css cunsemaenssncansacssnaenens 133, 131

I ED cance ptsteccsnnnencossons-snasens 233, 239, 240

GE I a nssncmnesnianannsenach snsipuinnxuabestecpoes 200

I ccs sccscaadebndintensantanseyensens 245, 249

Be I IND ics sdeeciunicnsnsenctuvercsoiscacens 40(fn), 93

Xxix

Page

Be RI i ace nc ccntchascesbeecenisn tine icnsb'sabonicbhnidtins 153

i I ce kt ons niche eases bemouhannoacnnioll 34

A a ciated hnaplatinanboniiionacancindalanipnn 193, 209

I ota cichnasiasanchacisdirwwbesnvciedoech poe 176, 256, 275

Te I I eos gik eine nrcentspsenconelonns 152, 234, 237, 260, 276

ie MIN IIIS soca sepa oecissce nkieaornsicxkia enenninatiaiiucla mond collagtt 251

La. Exh. 300 ...... bree a 201, 287, 289, 290, 294,

295, 296, 307, 308

a cca cerns ae dacinasnsaadtukapmenecepeeeanakesinus 289

I a neniccegheinsiens vintaccaieneackbax-nieseunaaoe ese 293

iia ssaccnsrscenpicts kiero sesinasavancsabndinesdsemabancnies 293

a I ci Saiencsipicy ceaoreas snaniicicsas paces en nian 278

rn is Sa sbansaceslesassqninamconenonsarened 68

ood occ rcaesc cnet mans sean Tiaaaae 290

Poe Sf Se eee cee antennal 150

Ne gS ieee a hey laslan ann ioeabdeeiniaciansoeniies 150

i ieee Loh wach ena cks rempsahaansbens nadie 295

I I os ais tances cn speginnahatadendsioestiadtin 290

Se I ack ct baactincesendincanamectneduin adiaasonay 289, 290

I sn in cedseai amps sidsttnanapeashioneonniiens 290

I 8 als ssienie ee iscaeakns re ddndceerankedenon testes 303

PT cn deaensoreisomacieneds 176, 233, 262, 266

Rg sa aies sasippohereneccncescsbianSiarenanraemeatomeee 251

I cesses cris apnichisedeghcteienesoeps eons cadinaneeaon 51, 233

NGI os scsn reeciccidehenineinthamianionansnilanincen 2, 261, 262

XXX

Page

Bs I Sea cchia canto nGibvdnieaksolerss 256, 257, 262, 263

Sy, Ee ios Orman Sg ecu oer 264, 266

IE Asch octeth cent ioptiencenccaoeeniannced 216, 217, 262

cae Rinse sine 63

RAE aE es Renton Dene Se Le 178

ni a asso che enta Sharamakenesaeleenn 291

ROE Rd ARRAN te RPT 2, 252

eg aracencag i oatiinenteneramnemnieed 271

eM ch aa Cec ca tgevaeiiss reesteee Paesomentaueaieiens 289

th en ametcanitacug teenage 289

gh eos eens a inns cons hk imsintanennadbeael 289

Rg AI aac cass acecen snd telaericdndcoacenanestadeens tn okt uaa 289

Be I ors citaashen nines tssrsemiehocamaa te ncaremedtan 289

up NG” Tae RA Seen OC EEC et MDS EE NRPS ERE Ao 188

5 ha ee Ses een coer Jaeee 69, 137, 138

rE es kon os gccemgsee el eae eee 74

Re I ic ada teu catencios earch caueiain 77, 137, 141

RM th sass amominnnicneneneauenn 30, 89, 187

se IE Es cacincedtsparrnps vier aopnbacae ast ccnston plead 23, 170

i I ange casdichsesioscoadetsioipsarssoxesereeaneieaceaiie 143

I I IES cteattenntorioccauccechanennstaticoenapsiaesnennss 10(fn)

Be ai soenrcnncrnsdasnadtarcnnnedenssinacpieenaie 29, 171

XXxi

Page

Noe Re, Oe Ne enect scent ene een beens 171

i See RI. I ar aches ohne pncece aaa eereeicainees 288

Oe) Wee PR RE oo costed yserceteashantacnd saat, 192, 193, 288

LA NS SON cork oar ans Duha cacaad sic nmap cals Shaianbicéis 193

i SEs RS IIE ceahc dedessindndcisczcdoa teem aaaiioustabaeets 293

Be is SE Sap disaetelecceicnaccaccnsate) 234, 240, 241, 283

iE Ae ae eee 218, 293, 294, 303, 304

ee aD irre Pai AAS fie Mss cto? 293

1, Se SE eG sig tellin aeeeuaeeniiad 289, 293

Ss, Way MI NIUE sist srtsna ache aciahpabdny ig tdeniea th cdeeeae 289, 290

Se I AG MM sScskcloddidases snc ictadgheniutecenm etree 290

im i | SRR aaa on ee ae 188, 205, 285, 287, 291

i OE WOM acess asst Saas oes tpntecncce Lae ies she 188

U.S. Exh. 349 .......... SAR EAR me ROLE A 258, 259, 260

RFs Ss ME, sciesnsintea hevtccaseusésune tense eae 296

a Se yo 231, 256, 257, 260, 262, 264, 266,

267, 268, 285, 286, 291, 294

Ee AS gj RMMUINREROU SRI a PInoy CE eran ieee bea 185

Ae ie Ne TEE wakes Govcatnneuiees nadeatioeeal cae coast 189, 191

Ras I I thas ecnitieins izacemcusdas genes gesvaee neta ade oes 303

eg ETD hecho dad clatdhdcacdcucosnouctaneidees dose esc

Rasta TIE Siciadiy eines alpaca dace secre 111-2004

fala Se MN 3 contain ee ch earhetl ta at 171, 280, 293

a I REET Nea cestoeeivaccotmareucoseiuen amare 290

ONT RS IE Sen hacer ene ic clodern oe ee disease ees 290

No. 9, ORIGINAL

In the

Supreme Court of the United States

OCTOBER TERM, 1973

UNITED STATES OF AMERICA,

Plaintiff,

Vv.

STATE OF LOUISIANA, ET AL.,

Defendants.

ERRATA TO LOUISIANA’S MOTION AND MEM-

ORANDUM DATED MAY 13, 1974

Certain minor typographical errors occurred in

Louisiana’s May 13th filing and these errata are sub-

mitted as corrections thereof.

In the Memorandum the following corrections are

indicated.

1. At page 16, the citation for the quotation at

the top of the page reading “394 U.S. 11, 78 n. 104”

should read “394 U.S. 11, 77 n. 104.”

2. At page 22, at the bottom of the top para-

graph, the last sentence reading ‘‘Notes 28 and 30, 394

U.S. 11, 24, 30...” should read “Notes 28 and 30, 394

US. 11, 24, 26. ..'.”

3. At page 38, the first line of the second quota-

tion, beginning “On the same basis,” the date “1948”

should be “1958.”

II.

In the Motion the following corrections are in-

dicated :

1. At page 252, the first line, “From La. Exh,

383” should read “From La. Exh. 343.”

2. At page 280, Finding 48.M, the first line, “The

natural entrance points of Ascension Bay. . .” should

read “The outer entrance points of Ascension Bay... .”

3. At page 281, Finding 48.N, the second line,

“as natural entrance points” should read “as outer

entrance points.”

Respectfully submitted,

WILLIAM J. GUSTE, JR.

Attorney General

State of Louisiana

FREDERICK W. ELLIS

Special Assistant

Attorney General

PAUL M. HEBERT

VICTOR A. SACHSE

OLIVER P. STOCKWELL

FREDERICK W. ELLIS

WILLIAM E. SHADDOCK

Special Assistant

Attorneys General

May 27, 1974

PROOF OF SERVICE

I, the undersigned, authorized to act on behalf of

the State of Louisiana, certify that copies of the fore-

going Errata to Louisiana’s Motion and Memorandum

were hand delivered to Federal Counsel in Memphis,

Tennessee, on May 27, 1974.

wth Ws Lhe

FREDERICK W. ELLIS”

No. 9, ORIGINAL

In the

Supreme Court of the United States

OCTOBER TERM, 1973

UNITED STATES OF AMERICA,

Plaintiff,

¥,

STATE OF LOUISIANA, ET AL.,

Defendants.

MEMORANDUM IN SUPPORT OF MOTION TO

CLARIFY, AMEND AND SUPPLEMENT FINDINGS

OF FACT AND CONCLUSIONS OF LAW IN THE

DRAFT OF THE PROPOSED REPORT OF

THE SPECIAL MASTER

May it Please the Special Master:

Following the suggestions of the Special Master

in his letter of February 21, 1974, Louisiana is filing

with this memorandum a motion to clarify, amend and

supplement findings of fact and conclusions of law

contained in the tentative draft of the proposed report

of the Special Master.

In the reference to the Special Master, the United

States Supreme Court suggested primarily that the

Special Master resolve certain factual issues and find

facts on which the Court could base its final opinion

in establishing the extent of Louisiana’s claim under

the Submerged Lands Act. Such being the Court’s in-

REFERERS

struction, it is extremely important to Louisiana to

have the Special Master find detailed undisputed facts

on. certain issues so that the Court may consider these

factual determinations along with the conclusions

drawn from the facts by the Special Master. This would

obviate the necessity of the Court remanding to the

Special Master issues for additional findings of fact if

the Court disagrees with the conclusions reached by the

Special Master on particular issues where all of the

facts were not detailed in the Special Master’s report.

In his draft, the Special Master commented on

Louisiana’s proof of historic waters, ‘““As the United

States does not dispute any of the factual evidence pre-

sented in support of these allegations, they must for

purposes of this report be taken as true.” ’ In view of

'This sentence follows the statement on pages 17 and 18,

which reads as follows:

“The State of Louisiana, however, insists that both

before and after the Geneva Convention, it has ex-

ercised over certain, if not all, of the disputed areas

sovereignty of a type consistent only with inland waters,

and that there has never been any protest either by any

foreign power or by the United States as to the exercise

of this sovereignty. This consists of the granting by the

State of Louisiana of certain oyster and mineral leases,

the regulation by it of fishing in the waters in question,

including the exclusion of unlicensed vessels and in-at

least one instance the arrest of foreign unlicensed fisher-

men in those waters, the enforcement of pollution control

regulations in the area, and the protection of wildlife in

the area by both the State of Louisiana and the United

States.”

While maintaining that the acts are consistent only with

a claim of inland sovereigiity, because, among other reasons,

the Acts were done under a juridical basis (Pollard’s Lessee

the undisputed evidence on Louisiana’s historic bay

claims, we suggest that the Master make detailed find-

ings of fact on such to perfect the record for the Court.

We will first consider East Bay. In approaching

Louisiana’s historic inland water claim as to East Bay,

it is necessary to consider what the Supreme Court

said in referring this issue to the Special Master. The

Supreme Court stated:

It would be quite another to allow the United

States to prevent recognition of a historic title

which may already have ripened because of past

events but which is called into question for the

first time in a domestic lawsuit. The latter, we be-

lieve, would approach an impermissible contrac-

tion of territory against which we cautioned in

United States v. California.”

This means that the Special Master must de-

termine Louisiana’s historic bay claim as to East Bay

when Louisiana’s claim was “called into question for

the first time in a domestic lawsuit.”

In determining when Louisiana’s claim was first

called into question, we refer to the Suggested Findings

of Fact and Conclusions of Law filed by the United

v. Hagan, 44 U.S. (3 How.) 212 (1845) which has been

limited as appertaining only to inland waters (United States

v. California 332 U.S. 19 (1947)), Louisiana disagrees with

any implication that acts of sovereignty must be consistent

only with inland classification to be effective in establishing

an historic inland claim.

“United States v. Louisiana, 394 U.S. 11. 78. note 104,

(emphasis added).

ara ORAL sR Sa es

Leyereint

: Tees aNcic ate

BERGA RTE NS Hh Pay ee I HORE Oo ee Ren ae

WAS Webs Risrinieinrdsceeres

States with the Special Master by cover letter dated

December 3, 1973, from which we quote:

The United States has at all times in this litiga-

tion, since the filing of the first complaint in 1948,

asserted that East Bay is not inland water within

the operative meaning of that term in these pro-

ceedings. (Finding No. 6).

Accordingly, the Special Master should determine

whether Louisiana’s historic bay claim to East Bay

had ripened into such ownership by past events at that

time. Actions of the United States after that date in

attempting to prevent recognition of such a historic

title ‘would approach an impermissible contraction of

territory against which we cautioned in United States

v. California.”

Louisiana has maintained that when Louisiana

was admitted as a state in 1812, East Bay was a juri-

dical bay. The United‘States, in its Findings of Fact

and Conclusions of Law filed with the Special Master

by cover letter dated December 3, 1973, admitted, in

Finding No. 8:

Before 1900, East Bay appears to have had such a

configuration that its entrance did not exceed 10

miles in width. Since at least 1918, the entrance of

the bay has been more than 10 miles wide. La.

Exh. 23.

and further, in Finding No. 9, United States admits

Nevertheless, if one applies the 10-mile closing

rule until 1958 * and the Convention on the Ter-

ritorial Sea and the Contiguous Zone thereafter,

East Bay, if once a true inland bay, ceased to be

a juridical bay ever since at least 1918. See the

Chapman Line of 1950 which did not enclose East

Bay.’

The closing line of East Bay as a juridical bay to

1918 between the outer natural entrance points was

8.58 nautical miles wide. East Bay landward of this

closing line contained 31,588 acres. The number of

acres to satisfy the semicircle test amount to 24,502,

being 7,086 acres in excess of the semicircle test. This

evidence is undisputed, as is the data showing East

Bay satisfied the semicircle test and had a mouth be-

tween natural entrance points of barely 11 miles from

1918 to 1956. La. Exh. 23A, and Finding 1.C and 2.M.

It would thus appear th..* there is no dispute be-

“United States v. California 389 U.S. 139 (1965) did not

apply the 10-mile rule until 1958, but applied the Convention

24-mile rule and semicircle test retroactively, to determine

the extent of inland waters acquired by California upon

statehood in 1850 and the grant acquired under the 1953 Sub-

merged Lands Act. The evidence is uncontroverted that at

least until 1956 East Bay, between natural entrance points

(Line A) clearly met the Convention tests, even by the most

conservative area measurement systems. See Findings 1.C,

2.4. 2k BRE Se.

‘But see the Measnu cement of the Geographic Area of the

United States, Plate VIII, the congressionally sanctioned and

still used study which did enclose East Bay. See Finding 6.I-N

and La. Exh. 52.

tween the United States and the State of Louisiana

that East Bay was a juridical bay at least until 1918,

with a closing line of less than ten miles.’ The law never

restricted a bay to a width of ten miles ° but never has

*See U.S. Exh. 103, letter from Dean Rusk to Robert F.

Kennedy, dated January 15, 1963, stating that prior to the

December 10, 1951 ICJ decision in the Anglo-Norwegian Fish-

eries case, the United States followed the “so-called ten-mile

rule for bays” (emphasis added) but thereafter sought adop-

tion by the U. N. of a 10-mile limit. This letter of the Secre-

tary of State thus indicates that this country, in foreign rela-

tions after December 10, 1951, recognized the ICJ Decision

rejecting the “so-called” ten mile rule as having ever been

international law. Certainly, the United States, outside of oil

litigation, would not have lightly continued to advocate a

position in foreign relations as law which a world tribunal

had declared in violation of international law; nor is it con-

ceivable that a distinguished statesman like Dean Rusk would

have refused to recognize that the ICJ ruling was entitled to

respect, even retroactively. Other evidence in the record of

this case indicates that while perhaps advocating a “10-mile

rule in international relations,” this country recognized con-

siderably greater bay closures (See Findings 1.B, 2.B, C, D

and L).

“The North Atlantic Coast Fisheries Case, sometimes cited

as the source of the so-called 10-mile rule, in fact did not

hold that there was a ten-mile rule of law on bays, but merely

recommended that the parties specifically agree on a 10-mile

limit which they did, for only some of the bays in question,

because of the absence of a defined bay size limit in interna-

tional law. “[T] hese circumstances (certain prior agreements

or proposals by Britain) are not sufficient to constitute this

a principle of international law, it seems reasonable to pro-

pose this rule...’ Hague Court Reports (1910), p. i88. It

was still merely being proposed in 1956, and never became

law. See United States v. California 381 U.S. 139, 163-165

(1965) applying Convention standards retroactively, due to

the void of clear prior limits. Thus, as per Secretary Rusk’s

letter, U.S. Exh. 103, noted supra, and the evidence of the

the United States, even in its oil claims in this case,

urged a lesser limit ‘ for bay closing lines.

As noted above, we have shown that the “so-

called’”’ (as Dean Rusk styled it) 10-mile rule was not

a rule at all, but only a rejected proposal. East Bay,

from its very first appearance on charts until at least

September 17, 1956, by the most conservative of area

measurement methods (specificaily the method ap-

proved by the Special Master) continuously qualified

as a bay behind a line connecting its outer natural en-

trance points (not using the jetties), which only slight-

ly exceeded ten miles after 1918. Although the Su-

preme Court stated that:

East Bay does not meet the Semicircle test

on a closing line between its seawardmost head-

lands—the tip of the jetty at Southwest Pass and

the southern end of South Pass,

it did expressly hold:

There is a line which can be drawn within

charts until 1956, La. Exh. 23A, Findings 1.C, 2.L, 21 & 22

in the period 1951 to 1956, the United States was recogniz-

ing a width standard which when applied to East Bay, called

for its classification as inland waters, for the closing line

distance was barely 11 miles wide between natural entrance

points on the August 22, 1955 chart, and was not signifi-

cantly greater on any prior charts.

"A gvroatci lumit—a twenty-mile rule—was used by fed-

eral treasury and law enforcement officials, presumably for

many years before and after a 1929 letter reflecting it. See

finding 2.C. Of course, East Bay has never had a mouth even

approaching twenty miies in width.

Dikhit 6 titricadenniniccimivaneniz

East Bay, however, so as to satisfy the semicircle

test. United States v. Louisiana, 394 U.S. 11,

53, 54,

The Supreme Court was right. The Court will

need the Master’s findings concerning data on the

juridical status of East Bay during the entire period

June 5, 1950 to the present to govern disposition of

revenue from bonuses, rentals and royalty paid over

the years. A ruling that the status from June 5, 1950

to 1956 is irrelevant would contradict the agreement of

the parties on the need to decide the status of waters in

East Bay since June 5, 1950 (Joint Pretrial State-

ment, Issues 6(3), p. 5). This is a matter of great

materiality since many of the mineral leases were

granted prior to 1956.

The factual findings requested by Louisiana on

measurement data have been absolutely uncontested

and inevitable conclusions are compelled by the data.

See Findings 1, 2, 21, 22, and 26 with supporting ref-

erences which cannot leave any doubt and are clearly

compelled by the record: East Bay behind the closing

line between its natural entrance points was always

unquestionably an inland water body with a configura-

tion that was recognized as a bay under international

law, certainly at least between June 5, 1950 and 1956;

and further, it was a bay by the principles the Supreme

Court retroactively applied in the 1965 California de-

cision and even a bay under principles retroactively

recognized in foreign relations by the United States

after December 1951. This is also true as to important

dates: in 1948, when for suspect reasons,” federal oil

litigation claims over East Bay were first asserted for

domestic purposes; in June 1950, the date for com-

mencing accounting between the parties; as of the

1953 enactment of the Submerged Lands Act; and

until 1956 when Chart 1272 was changed contempo-

raneously with the 1956 government motion for a gov-

ernmental injunction to prevent drilling in East Bay

and other offshore areas, which change should also be

suspect.

Recognition of East Bay’s long standing status

as a juridical bay is also material and adds importance

to Louisiana’s claim to that waterbody as an historic

bay. Under the »rinciple urged by the United States at

the Hague Conference in 1930 and recognized as the

United States position in the U. N. Conference on the

Law of the Sea which led to the 1958 Convention, and

also recognized in testimony by international law ex-

perts in this case,

Waters, whether called bays, sound, straits,

or by some other name, which have been under the

jurisdiction of the coastal state as part of its in-

terlor waters are deemed to continue as part

thereof. (Statement of Mr. Miller, the representa-

tive of the United States of America, at the Hague

Conference on the Codification of International

Law in 1930 quoted as a part of the United States

position under the approving heading, “Scope of

the Theory of Historic Bays,” in the Preparatory

‘See Judge von der Heydt’s findings in the Cook Inlet

Case treated in findings 7.C-D, and in note 9 infra.

a Die cst RAE Bara oeictore EER Ae EEE Sr

Cae et are ‘ ee eee * “ pinta

BEL BOT GIRLS IND Bind YS MGR ASO EPS

Documents, Vol. I, Official Records U. N. Con-

ference on the Law of the Sea 1958, U. N. Doc. A

Conf. 13 37, at page 37.)

But if you might have started even with a geo-

graphic bay but in fact as a result of change it

ceased to be one but you continued to assert rights

in those bays, and other people continued to recog-

nize them, then you might have moved from, if

you will, a geographic to an historic bay. Dr.

Henkin, Tr. 4912-13.

See testimony of Dr, Bouchez, Tr. 957-66.

We have shown elsewhere that the Supreme Court

has deemed the indentations of the Mississippi Delta

to have sufficient geographic characteristics to be con-

sidered as historic bays. See footnote 100, 394 U.S. 11,

75. We have more than demonstrated the correctness of

the Court’s approach by proving that by every stan-

dard, East Bay was geographically and legally a bay

until at least 1956 behind a line connecting its outer

natural entrance points.

Even after East Bay exceeded the ten-mile pro-

posed limit commencing in 1918, if it had not been

juridically an inland water body at its outer mouth, it

was at least a geographical bay until 1956 behind its

outer natural entrance points. The line met the semi-

circle test and a fallback line would have been ap-

propriate, even under the North Atlantic Coast Fish-

eries Arbitration recommendation and the policy of

the United States. See Findings 1 and 2, especially

2.L (3), 2.N, and Figure 3.

The nexus between the historic and geographic

considerations simply cannot be ignored if the Su-

preme Court’s views are to be followed. “Whether par-

ticular waters are inland has, depended on historical as

well as geographical factors.” 394 U.S. 11, 23 (in the

context of discussing the historic waters claims of

Louisiana under the broad Coast Guard Line claim).

The principle announced that waterbodies once

inland remain inland, accords with the Supreme Court

opinion, for it is derived from historical geographical

reasoning. Nor does the principle conflict with the

ambulatory commentary of the Supreme Court, if

mechanistic literalism is avoided and context consid-

ered. That ruling was not in the context of Mr. Miller’s

point that waterbodies, whether straits, sounds or bays,

remain subject to the jurisdiction of a state once they

fall under the jurisdiction of a state. Surely the Su-

preme Court has recognized that no amount of geo-

graphic change of the shoreline in an historic bay will

change its legal status, since continued legal status is

not dependent on precise present geography. “... other

areas of water closely connected to the shore, although

they do not meet any precise geographical test, may

have achieved the status of inland waters by the man-

ner in which they have been treated. . .” 394 U.S. 11,

23. A fortiori, if waters had formerly met precise geo-

graphical tests and had also been treated as a bay,

failure to continue to meet precise geographic tests

would be immaterial. Thus, the doctrine is traceable to

the Court’s language. Mr. Miller at the Hague was not

speaking of mere changes of shoreline and related

three-mile projections from the shoreline; Mr. Miller

was speaking of geographic entities not changing

status.

The question after 1948, when the United States

made its oil claims for East Bay as against the State

of Louisiana, is not whether thereafter the federal

government continued to recognize the bay, for as the

Supreme Court has stated,

it would be impermissible to allow the United

States to prevent recognition of an historic title

which may have already ripened because of past

events but which is called into question for the

first time in a domestic lawsuit. The latter we be-

lieve would approach an impermissible contrac-’

tion of territory against which we cautioned in

United States v. California. U.S. v. Louisiana,

394 U.S. 11, 78 n. 104.

For this obvious reason the Court in Alaska considered

“suspect” post-oil litigation matters.” The only ques-

“United States District Judge James S. von der Heydt,

in his findings of fact and conclusions of law dated the 29th

day of January, 1973, in the suit of United States of America

v. State of Alaska, Civil No. A-45-67, found:

“103. The so-called disclaimers relied upon by the United

States government are ineffectual because (a) they are re-

futed by historic evidence, referred to above, which is clear

beyond doubt; (b) they were hastily prepared, based on ques-

tionable research, and offered in a self-serving effort by the

federal government to have the Court disregard historic facts;

and (c) came at a time when historic title had already ripened

into ownership of the disputed area of Cook Inlet.

104. The background investigation pertaining to the letter

from Abram Chayes to Frank J. Barry dated May 3, 1962

tion after 1948 is, did any foreign nation protest or

otherwise cease to recognize abundant assertions of

was done by a staff assistant in the Office of the Secretary

of State’s Legal Advisor. The investigation was limited to

records of the State Department. (Exhibit 58; Chayes’ depos.

pp. 5-12; Yingling’s depos. pp. 5-12; 15-16; 18-21)

105. The background investigation pertaining to said let-

ter was inadequate in that: (a) not all of the records of the

State Department or other departments necessary to form an

adequate basis for the conclusions contained in said letter were

searched; (b) an adequate investigation would have required

research by one person of at least three months, whereas in

fact, the one person assigned to the project took only six

days. (Simon’s depos., p. 54-55; Exhibit HT; HT-1; Alaska’s

11th Set of Interrogatories No. 4)

106. The conclusions contained in the letter from Leonard

Meeker to Shiro Kashiwa, dated July 3, 1969, were based on

on research other than that referred to above, plus an insignif-

icant amount of additional research. (Carter's depos., pp.

6-11)

107. The charts depicted by Exhibit 73 were drafted by

the Law of the Sea Baseline Committee at a time when this

case Was pending in this court. Among the members of that

committee at the time was the principal attorney for the

United States in this litigation. Said exhibit cannot be said

to be an unbiased product. (Hodgson’s depos., pp. 10-15; Ex-

hibits HY, HX, IB, IC, IC-1)

108. The background factual research pertaining to Ex-

hibit 73 was based upon no information other than that refer-

red to in Findings 104-106. (Hodgson’s depos., pp. 6-7; 44-

45; 48-49)

109. Contrary to the pasition now advanced by the United

States in lower Cook Inlet, the Baseline Committee determined

Long Island Sound to be historic waters of the United States

in the absence of a declaration by the Executive Branch to

that effect. The Baseline Committee failed to discuss, in its

deliberations, the possible historic status of Cook Inlet and

it is clear such committee did not have before it the evidence

which has been presented to this Court. (Hodgson’s depos.,

pp. 49, 151-153; 157-159; Exhibit HX).”

an | ee sg ee RB a re te

jurisdiction theretofore made by both the United States

and Louisiana and thereafter continuously and vigor-

ously asserted by Louisiana? Even a foreign protest

would be irrelevant if the title had ripened.

Almost contemporaneously with the filing of the

lawsuit against Louisiana in 1948, even in 1946, offi-

cial publications of the federal government were still

representing to the world that East Bay measurements

showed it to be inland waters, and the measurements

are still officially used.*”

There is an overwhelming preponderence of evi-

dence showing the possession of East Bay as a body of

inland water, which should be the subject of findings;

e.g., see Finding 5 treating facts such as the following:

oyster leasing in 1903 and for many decades there-

after; patrolling by armed vessels which excluded

foreign vessels from East Bay immediately after World

War I, and during the 1920’s; reinforced further by

mineral leasing of the entirety of East Bay in 1928

with a great multiplicity of operations or contracts

made during the 1930’s and 1940’s pertaining to East

Bay; the subjecting of foreigners to the regulatory ju-

risdiction of Louisiana, through licensing Japanese

fishermen and enforced compliance with Louisiana

conservation laws; the exclusion of unlicensed out-of-

state and foreign fishermen by Louisiana patrol vessels

as far as the memory of witnesses extended (to 1918) ;

the actual arrest of several foreign vessels in 1946 or

10Measurement of Geographic Area of the United States,

Plate VIII, La. Exh. 52 (1 § 2). See Findings G.I—O.

1947; the continued and renewed mineral leasing in

the 1940’s and 1950's by the State of Louisiana: and

many other acts, state and federal.

By comparison, the Alaska Cook Inlet decision

simply does not reflect a fraction of the facts support-

ing the historic bay claim for East Bay. The tentative

subjective conclusion of the Master to the contrary

simply will not stand close comparison of the factual

details of the cases. For the Supreme Court’s review,

Louisiana is entitled to have reflected particular find-

ings which would enable the Supreme Court to reach

its own subjective comparative conclusions without

need for remand. There were fishery statutes and

regulations in Alaska affecting Cook Inlet. These were

also present in East Bay. There was patrolling of Cook

Inlet for a brief time. There was patrolling by armed

vessels using a point-to-point headland system for mea-

suring the three miles at East Bay at least since 1918.

See depositions (La. Exhs. 145-149) which, since they

were deposition evidence, could have been overlooked.

There was a single, isolated arrest of a Japanese vessel

in Shelikof Strait, many miles away from Cook Inlet

in another waterbody Alaska claims on_ historic

grounds. True, the arrest was partly on the claimed

grounds that the vessel had earlier been in Cook Inlet,

but this is not nearly as strong as East Bay evidence.

There was not an arrest of a single vessel, but an ar-

rest of a group of vessels within East Bay and at a

point more than three miles from shore. In both East

Bay and outside of Cook Inlet the arrests were by state

enforcement officials concerned with fisheries conser-

“

vation law enforcement. In Alaska, Canadians had fre-

quently entered the bay. This was done without any

special license from the state of Alaska. Such innocent

passage did not preclude historic inland bay classifica-

tion. The only foreign entrances into East Bay other

than perhaps emergency entrances in bad weather

(which is not regarded as innocent passage) were

‘under fishing licenses or registry obtained from the

State of Louisiana which some Japanese who used to

operate out of Barataria Bay and Grand Isle acquired

to shrimp in inland waters during the 1930’s. This was

at least an implicit recognition of jurisdiction of the

State of Louisiana and in compliance with the laws and

authority of the state. Otherwise, foreigners were ex-

cluded by armed vessels, using a point-to-point sys-

tem (the jetties and mudlumps).

There had not been 20 years of mineral leasing

and mineral development activity in Cook Inlet prior

to the first federal challenge to its status. The 1940

remeasurement for the geographic area of the United

States reported in the official United States Depart-

ment of Commerce publication in 1946, Measurement

of Geographic Area, did not reflect any internal waters

claim for Cook Inlet (Alaskan waters were not treat-

ed.) It did for East Bay, and plainly stated to be by

application of the rules of the Geographer of the De-

partment of State used to determine inland waters in

international relations. There was no evidence in the

Cook Inlet case that other resources of the bay had

been the subject of exclusive leasing and scores of

years of occupation and corporeal uses, e.y., the oyster

and mineral leases in East Bay. There were no bird

reservations affecting Cook Inlet. If Louisiana can

have the specific particular fact findings to reflec: the

facts of what was present over the years by way of

assertions of jurisdiction of the State of Louisiana

and or the federal government in East Bay, we are

confident that the Supreme Court, when it considers

both cases, will do equal justice to Louisiana.

The Master’s tentative draft suggests that as-

sertions of jurisdiction, which-may be made in terri-

torial waters, are not probative of historic inland

classification. This has been apparently based upon a

misunderstanding of a certain facet of the Supreme

Court opinion in the Louisiana Boundary Decision re-

lating to rejection of the historic waters claim which

used only the inland water lines designated under the

Act of 1895. The importance of statements of the

Court on this subject lies not in any erroneous impli-

cation that jurisdictional acts which may be done both

in territorial and in inland waters are not probative of

an historic inland bay claim: for no such legal rule was

presented in the portion of the Court’s opinion setting

forth the relevant historic waters rules. The only

agreed rules for historic bay determination given by

the Court, for which it found substantial accor d, were

referred to in notes 102 and 107. See 394 U.S. 11, 23,

n. 27; cross referenced at 75, note 102.

These factors are: (1) The exercise of au-

thority... (2) the continuity of this exercise.

(3) the attitude of foreign states.

It is true, the Supreme Court indicated other con-

siderations in notes 28 and 30, by way of obiter, in the

context of dealing with Louisiana’s historic waters

claims stating with reference thereto “there is not

complete accord.” 394 U.S. 11, 24. We emphasize the

word waters te show that the relevancy of the Court’s

remarks in notes 28 and 30, about matters for which

there was a want of accord, was further lessened by

the context. The context was not a discussion of his-

toric bay claims, but of the broad historic waters claim

based upon the ofd Inland Water Line position or Coast

Guard Line argument that involved a line drawn dozens

of miles at sea which was predominantly an historic

waters contention, not a bay contention. Notes 28 and

30, 394 U.S. 11, 24, 30 both quoted Juridical Regime of

Historic Waters, Including Historic Bays, U.N. Doc.

A CN.4 143 (1962). Note 28 reads:

Historic title can be obtained over territorial

as well as inland waters, depending on the kind of

jurisdiction exercised over the area. “If the claim-

ant State exercised sovereignty as over internal

waters, the area claimed would be internal waters,

and if the sovereignty exercised was sovereignty

as over the territorial sea, the area would be ter-

ritorial sea.”’ Juridical Regime of Historic Waters,

Including Historic Bays, supra, n. 27, at 23.

Note 30 reads:

The recent United Nations study of the con-

cept of historic waters concluded that “if the

claimant State allowed the innocent passage of

foreign ships through the waters claimed, it could

not acquire an historic title te these waters as in-

ternal waters, only as territorial sea.” Juridical

Regime of Historic Waters, Including Historic

Bays, supra, n. 27, at 23. Under that test, since

the United States has not claimed the right to ex-

clude foreign vessels from within the “Inland

Water Line,” that line could at most enclose his-

toric territorial waters.

The material referred to as being at page 23 is found

in the typed copy of the Juridical Regime document at

page 66, U.S. Exh. 99, paragraph 164. Paragraph 163

had stated the general proposition that as to historic

bays, the coast of which belong to a single state, the

waters were internal waters and that the territorial

waters commence outside that line.

The dominant opinion as gathered from the

statements assembled in the memorandum seems

to be that historic bays, the coast of which belong to

a single state, are internal waters. .

Paragraph 165 at page 67 of the document, Jwri-

dical Regime of Historic Waters, Including Historic

Bays, U.S. Exh. 99, made plain that the principles

quoted in notes 28 and 30 of the Supreme Court’s opin-

ion, page 66 of U.S. Exh. 99, are reconciled with para-

graph 165’s statement by pointing out that the terri-

torial waters classification can only appertain to

waters and not to bays.

In the latter case [referring to historic

waters that are part of the territorial sea rather

than inland in character] it would be preferable

not to speak of an “historic bay” but of “historic

waters” of some other kind.

Thus, when an indentation sufficient to be deemed

a bay is the situs of the act, the act coupled with the

geography shows the inland nature of the sovereignty

asserted. It has been decided that the waters claimed

by Louisiana in the Mississippi Delta on historic waters

grounds, and this is especially true of East Bay, have

a configuration sufficient to characterize them as his-

toric bays.

We do not pass on this contention except to note

that, by the terms of the Convention, historic bays

need not conform to the normal geographic tests

and therefore need not be true bays. How unlike a

true bay a body of water can be and still qualify

as a historic bay we need not decide, for all of the

areas of the Mississippi River Delta which Lou-

isiana claims to be historic inland waters are in-

dentations sufficiently resembling bays that they

would clearly qualify under Article 7 (6) if his-

toric title can be proved. Louisiana Boundary

Case, 394 U.S. 11, 75, n. 100.

Thus, the Master is not empowered to consider

whether the bodies claimed by Louisiana are mere-

ly historic waters and not historic bays, and notes 28

and 30 appertain, as the text of the opinion shows, only

to those historic waters which are not bays. This argu-

ment is further supported by the clear letter of the

text of the opinion. The Supreme Court, in treating

Mississippi River Delta and East Bay claims, treated

them as historic bays and at 394 U.S. 11, 74, 75, used

the term bays repeatedly in treating Louisiana’s Mis-

sissippi Delta historic claims. However, by contrast,

when discussing the so-called Coast Guard Line claims

—a line 370 miles long which at most places did not en-

close indentations or was not tied into headlands—the

Court repeatedly used the term “historic waters.” This

related only to the rejection of historic claims based

only on that line.

Whether particular waters are inland has

depended on historical as well as geographical fac-

tors. Certain shoreline configurations have been

deemed to confine bodies of waters, such as bays,

which are necessarily inland.’ But it has also

been recognized that other areas of water closely

connected to the shore, although they do not meet

any precise geographical test, may have achieved

the status of inland waters. .. (emphasis added)

394 U.S. 11, 23.

It was not the historic bays, “which are necessarily

inland,” but the “other areas’ of the Inland Water

Line claim which were rejected as merely territorial

by the Court. By contrast to the bay language used as

to the Mississippi Delta claims, the term “historic in-

‘Consider this statement in light of note 100 of the

Court’s opinion quoted swpra concerning the sufficiency of

the indentations to be bays in the Mississippi Delta, together

with the Juridical Regime Document, the Court quoted, which

stated immediately after the quoted paragraph as discussed

supra, that it would be incorrect to speak of historic bays but

rather the term historic waters should be used if the waters

are merely territorial! sea rather than inland waters.

land waters” was repeatedly used for the “other areas”

of the historic waters claims. Pages 24, 25, 26, 27, 28,

29. The terms waters and bay were employed quite ad-

visedly according to their context in the text of the

Court’s discussion.

Somehow the federal arguments have perverted

the meaning of what was done in the document “Juri-

dical Regime,” changing a rule that permitting inno-

cent passage shows a merely territorial intent into a

false rule that only acts actually expelling foreigners

physically are probative of an inland intent. The sole

example quoted as evidence of the proposition that an

assertion of jurisdiction would result in territorial sea

classification, was the circumstances where such as-

sertions were accompanied by the permission of inno-

cent passage. (As in the Cook Inlet case, where even

these facts did not deter an historic bay finding.)

There is no occasion for innocent passage within an

indentation of a bay-like geographic character, for in-

nocent passage relates to routes which connect parts

of the high seas, not entrances to inland waters nor in-

land waters themselves. Where innocent passage is

practiced, navigational regulation alone is of course

ambiguous and in the context of the inland water

claim, was rejected by the Court as alone inadequate.

For the particular concrete problem the court was dis-

cussing, one can readily understand how the court

probably opined that a vessel 20 or more miles from

shore, or clearly in the open seas where there was no

trace of an indentation on charts, would not have a

sense of being subjected to the inland jurisdiction of

a nation seeking to enforce navigational rules in shal-

low coastal waters.

To make an analogy to possession and prescrip-

tion rules of the Civil Law, from which International

Law on Historic Waters was derived, possession must

be open and unequivocally as owner ; that is, there must

be acts suggestive of an intent to act as full owner.

Navigational regulation alone under the circumstances

described by the Court can well be understood as in-

sufficient. However, exclusive acts have plainly evi-

denced a domestic imperium and dominium in East

Bay: oyster leasing that started in 1903 and continued

for scores of years, and mineral leasing that started in

1928, and the patrolling by armed vessels, and the

arrest of foreigners in 1946; and the enactment of laws

claiming the waters—these and other acts all are so

overwhelmingly exclusive that there should be no doubt

as to their efficacy for historic bay purposes, especially

in an indentation which would give the plain geogra-

phic connotation of an inland bay claim.

Whether particular waters are inland has

depended on historical as well as geographical

factors ... configurations such as bays... are

necessarily inland. 394 U.S. 11, 23.

The true impact of note 30 of the United States

Supreme Court opinion, 394 U.S. 11, 26, pertaining to

the effect of the allowance of innocent passage is that

it is incumbent upon the party contesting the assertions

of jurisdiction to show that innocent passage was nor-

mally or frequently allowed, that is, that the waters

which are the subject of the historic claim were an in-

ternational route for traffic between parts of the high

seas. Not only did the government fail to show such a

thing, but the character of East Bay precludes such a

showing. No vessel would go into East Bay for the pur-

pose of getting to another part of the high seas but

would only use it, navigationally, to enter or exit in-

land waters. The same is true of Caillou Bay and other

waters claimed on historic bay grounds, none of which

are useful for innocent passage to connect parts of the

high seas. Shallowness or configuration makes inter-

national passage between parts of the high seas im-

possible. The real significance of the innocent passage

quotation from the Juridical Regime document is this:

jurisdictional acts which have been rejected as ineffec-

tive to prove an inland historic title were in the con-

text of significant innocent passage, or the subject of

an express limiting declaration. United States v. State

of California, 381 U.S. 139, 171-173, discussion of the

fact that the Santa Barbara channel served as an im-

portant route of international passage which precluded

it from being classed as inland water; discussion of

Coast Guard Line in United States v. Lowisiana, 394

U.S. 11, 27 (1969) ; and U.S. Exh. 99, p. 66.

_ If the Master adheres to his tentative ruling that

Lou:siana’s evidence has a merely territorial signifi-

cance, that ruling will be inconsistent with many au-

thorities which, on the basis of lesser evidence than

the undisputed evidence presented by Louisiana, have

recognized historic bays to enclose inland waters.

Thus, the authorities recognize that there was no

ESI PNR SR rt

question that when Delaware Bay and Chesapeake

Bay were adjudicated to be historic bays, their waters

became inland waters of the United States. (Op. A.G.

32 (1852) ). (Stetson v. U. S., No. 3993 Class 1) (2d

Court of Commissioners of Alabama Claims). This is

likewise true of Long Island Sound. At first Long Is-

land was not recognized by the United States State

Department as a historic bay, but this was corrected

by Mr. Leonard C. Meeker, Legal Advisor for the State

Department, in his letter to Mr. Erwin N. Griswold,

Solicitor General, dated April 8, 1969. When Long

Island Sound was recognized as a historic bay, no ques-

tion was raised about its waters being inland waters

of the United States. See U. S. Exh. 108.

The Convention on the Territorial Sea and the

Contiguous Zone itself refutes the United States’ con-

tention that East Bay and Caillou Bay are territorial

seas but not inland waters. The rules of Article 7, it

will be noted, are prescribed solely for the purpose of

defining the baseline for the measurement of territorial

sea across the mouths of or within bays, and that

waters inside that line are inland waters. Accordingly,

the only sensible meaning of Section 6 of that Article

(the exception of historic bays) is that a baseline

drawn across the bay’s entrance encloses inland

water."*

'2Paragraph 116, Historic Bays, indicates that a bay can

contain historic waters only if the recognized historic bay

were equal to the width of the historic water in the bay. Thus,

since one-half of the distance between the headlands of East

Bay and Caillou Bay is more than three miles in each case,

ee es |

LAER LER SAREE ROE

Thus in the document, Historic Bays, Memoran-

dum of the Secretariat of the United Nations, Docu-

ment A Conf 131, one of the United States’ own ex-

hibits in the case (Exh. 97), we find:

“Tt is always necessary to remember, in dealing

with ‘historic waters,’ the essential point that

those waters are internal waters. This fact ex-

plains many aspects which would be otherwise

difficult to grasp. The theory was originally

evolved to apply to ‘bays,’ and is still referred to

as the theory of ‘historic bays,’ because it was

never envisaged that it might apply except in

areas which, by reason of their configuration, are

generally not used as major international routes

of transit;...’’ Historie Bays 117. (See also

Juridical Regime 163 wherein it is stated that

the dominant opinion is that historic bays are

internal waters. )

The United States does not dispute authority of

a state exercising sovereignty (Juridical Regime, 80)

over bays in order to claim them as historic waters.

What kind of acts constitute “sovereignty”? The Unit-

ed States contends that the requisite exercise of sover-

eignty must consist of acts directed against foreigners.

The only evidence in the record on this subject is that

introduced by Louisiana, which establishes that Lou-

isiana’s enforcement policies in East Bay and Caillou

Bay were directed both against nationals and foreign-

it necessarily follows that the territorial sea of the United

States must have been more than three miles. This, of course,

is not true since the United States was only claiming a ter-

ritorial sea of three miles.

ers alike. The United States did not offer one scintilla

of evidence to establish that foreigners used East Bay

or Caillou Bay without complying with the laws, rules

and regulations promulgated by Louisiana for fishing

in these waters. Certainly if there was such evidence

the United States, with its vast resources would have

produced it.

tecognizing that sovereignty must be effectively

exercized by deeds and not merely by proclamations,

the writers of the Juridical Regime stated:

“This does not, however, imply that the State

necessarily must have undertaken concrete action

to enforce its relevant laws and regulations within

or with respect to the area claimed. It is not im-

possible that these laws and regulations were re-

spected without the State having to resort to par-

ticular acts of enforcement. It is, however, essen-

tial that, to the extent that action on the part of

the State and its organs was necessary to main-

tain authority over the area, such action was un-

dertaken.” Juridical Regime 99.

The absence of foreign vessels (except a few who

recognized Louisiana’s sovereignty by the purchase of

licenses from Louisiana) and Louisiana’s policy of en-

forcing its laws and rules in the waters of East Bay

and Caillou Bay against nationals and foreigners alike

satisfy this pronouncement. In discussing the kind of

authoritative acts the State must exercise, the author

of the Juridical Regime document stated:

“Suppose... that the State has continuously as-

TE eR ee ER er

serted that its citizens had the exclusive right to

fish in the area, and had, in accordance with this

assertion, kept foreign fishermen away from the

area or taken action against them. In that case the

State in fact exercised sovereignty over the area,

and its claim, on a historical basis, that it had the

right to continue to do so would be a claim to the

area as its ‘historic waters’. The authority exer-

cised by the State would be commensurate to the

claim and would form a valid basis for the claim

(without requirements for the title must also be

fulfilled). Juridical Regime 86."'

The author went on to quote the opinions of promi-

nent and internationally recognized writers on the sub-

ject and to refer to international conventions and arbi-

trations. One writer, Gidel, in discussing the acts by

which authority is exercised, stated:

“It is hard to specify categorically what kind of

acts of appropriation constitute sufficient evi-

dence: the exclusion from these areas of foreign

vessels or their subjection te rules imposed by the

coastal State which excee@%the normal scope of

regulations made in the interests of navigation

would obviously be acts affording convincing evi-

dence of the State’s intent. It would, however, be

toc strict to insist that only such acts constitute

evidence. In the Grisbadarna dispute between

Sweden and Norway, the judgment of 25 October,

1909 mentions that ‘Sweden has performed vari-

13See Deposition of Captain Schouest on the armed patrols

commencing in 1919, and how the Japanese and other for-

eigners honored them. Finding 5.P. See also depositions of

other law enforcement officers. Findings under 5.

ous acts. .. owing to her conviction that these re-

gions were Swedish, as, for instance, the placing

of beacons, the measurement of the sea, and the

installation of a light-boat, being acts which in-

volved considerable expense and in doing which

she not only thought that she was exercising her

right but even more that she was performing her

duty.’ ”’ Juridical Regime 89.

Bourquin, another writer, agreed and stated:

“What acts under municipal law can be cited as

expressing its desire to act as the sovereign? That

is a matter very difficult, if not impossible, to de-

termine a priori. There are some acts which are

manifestly not open to any misunderstanding in

this regard. The State which forbids foreign ships

to penetrate the bay or to fish therein indisputably

demonstrates by such action its desire to act as

the sovereign.” Juridical Regime 90.

In the Fisheries case, United Kingdom v. Nor-

way, Judgment of 18 December, 1951, Norway stated

in its Counter-Memorial:

“It cannot seriously be questioned that, in the ap-

plication of the theory of historic waters, acts

under minicipal [sic] law on the part of the

coastal State are of the essence. Such acts are

implicit in an historic title. It is the exercise of

sovereignty that lies at the basis of the title. It is

the peaceful and continuous exercise thereof over

a prolonged period that assumes an international

significance and becomes one of the elements of

the international juridical order.” Juridical Re-

gime 93.

Clearly Louisiana’s evidence meets the test set

forth in the above-quoted portion of the Juridical Re-

gime, an authority admitted by the United States to be

controlling in this case. The United States Supreme

Court has decided that state acts may be considered in

establishing jurisdiction over inland waters.

Another misunderstanding in the Master’s draft

concerning the Supreme Court’s 1969 opinion war-

rants correction. The Court, 394 U.S. 11, 27, quoted

administrative acts commencing in 1948 and in 1953,

1964, and 1967 (each happening at or immediately

before an active phase of the controversy) disclaiming

importance for the 1953 Coast Guard Line. Disclaimers

in or after 1948 are suspect. The 1943 Coast Guard

Manual did not clearly disclaim jurisdictional im-

portance but merely stated that the line quite obvious-

ly did not truly separate the high seas from the inland

waters. Obviously, it could not, because territorial

waters intervened. But if the latter point were not

true, still between 1895 and during all the many sub-

sequent declarations of lines around the Mississippi

Delta prior to 1953, jurisdiction, at least navigational,

was declared and exercised under the Act of 1895.

Alone, perhaps this might not be enough. However,

given the many acts and lines depicted in La. Exh. 285,

the cumulative effect is enough. In effect, before Arti-

cle 4 was articulated, the United States itself drew or

recognized straight baselines, thus, adding to the his-

toric bay body of evidence. There had, “in effect’? been

a drawing of an international baseline by subsequently

defined principles and methods. That is enough. See

394 U.S. 11, 74.

CAILLOU BAY

If Caillou Bay had been long treated as inland

waters, it would be historic inland waters if not an

historic bay. The Court said:

“... other areas of water closely connected to

the shore, although they do not meet any precise

geographical test, may have achieved the status

of inland waters by the manner in which they

have been treated by the coastal nation. ...

[H]istoric title can be claimed only when the

‘coastal nation has traditionally asserted and

maintained dominion with the acquiescence of

foreign nations.’ ’’ 394 U.S. 11, 23.

“It would be [impermissible] to allow the

United States to prevent recognition of a historic

title which may already have ripened because of

past events but which is called into question for

the first time in a domestic lawsuit. The latter,

we believe, would approach an impermissible con-

traction of territory against which we cautioned

in United States v. California, See n. 97, supra.”

394 U.S. 11, 77 n. 104.

Moreover the United States has in effect utilized

straight baselines around Caillou Bay and would

change now in an impermissible effort to prevail in

this litigation.

“If that [that the United States had taken

36—

a posture of a firm and continuing international

policy to enclose inland waters within island

fringes to the extent that it could be said to have

in effect utilized the straight baseline approach]

had been the consistent official international

stance of the Government, it arguably could not

abandon that stance solely to gain advantage in a

lawsuit to the detriment of Louisiana.” 394 U.S.

11, 74 n. 97.

The Special Master should first determine when

the United States called into question Louisiana’s in-

land water claim to Caillou Bay in a domestic lawsuit.

Caillou Bay has been treated by Louisiana as a bay

since its admission into the Union in 1812. Caillou Bay

has been designated as a bay on maps since that date.

When Act 52 of 1904 and similar prior acts were

passed, by which Louisiana claimed tatle to the beds and

bottoms of all bays on the Gulf, Caillou Bay was such

a bay and title was vested in the State of Louisiana.

After the decree of December 11, 1950, by which the

United States Supreme Court determined that Louisi-

ana had no marginal sea, the Honerable Philip B.

Perlman, on March 16, 1951, made demand on Louisi-

ana to account for offshore oil and gas operations gulf-

ward from a line on Charts 1115 and 116. Caillou Bay

was treated on the charts as inland waters. This is

the same set of maps on which the United States dis-

puted Louisiana’s claim to East Bay. When the Sub-

merged Lands Act was passed in 1953, Caillou Bay

was inland waters of Louisiana and was so recognized

by the United States.

This was true throughout the litigation interpret-

ing initially Louisiana’s claim under the Submerged

Lands Act, which resulted in the decree of the Supreme

Court, dated May 31, 1960,"' determining that Louisi-

ana had no historical boundary and was only entitled

to three miles from its coastline. The arguments lead-

ing to that decree had recognized the inland character

of Caillou Bay and all other waters enclosed by islands.

In 1961, even after the 1958 Territorial Sea Con-

vention, the United States was still adhering to the

Chapman Line position on Caillou Bay, on the basis

of State Department direction. See La. Exh. 178, and

Finding 14.T.

In the California litigation, no indication was

given of any change in the United States position on

the island-bay closing lines and the recognition of the

sufficiency of enclosure, but rather the Louisiana facts

of sufficiency of enclosure were merely distinguished

from Santa Barbara Channel. (After 1968 the Santa

Barbard Channel holding has been urged as disposi-

tive of Caillou Bay issues.) For the first time in 1968

the Proposed Supplemental Decree No. 2 and Memo-

randum in Support of the Motion for the United States

and in Opposition to the Motion of the State of Lou-

isiana called Louisiana’s title to Caillou Bay in ques-

tion in the following language.

“Under the Convention on the Territorial Sea and

the Contiguous Zone, waters between the main-

land and coastal islands do not have the status of

“United States v. State of Louisiana, 363 U.S. 1.

* a

inland waters unless the coastal nation elects to

enclose them by straight baselines under Article 4.

Prior to that Convention there was no internation-

al consensus on the subject; but the United States

had taken the position that such waters were in-

land waters at least in some circumstances. In ac-

cordance with that position, we have heretofore

treated Chandeleur and Breton Sounds as inland

waters in this case and its predecessor, United

States v. Louisiana, No. 13, Original, October

Term, 1948; No. 12, Original, October Terms,

1949-1950; No. 7, Original, October Terms, 1951-

1960.”" (Page 78). (Emphasis added)

The United States continued on page 79 to state:

“On the same basis we conceded in 1948 that the

waters between the mainland and islands belong-

ing to Louisiana under its Act of Admission were

in fact sufficiently enclosed to constitute inland

waters under the principles then being followed

by the United States.” (Emphasis added. )

The United States went on to say:

“We think that there would be much justifi-

cation for asking at this time to be relieved of a

concession, at variance with the Convention on the

Territorial Sea and the Contiguous Zone, made

four months before that Convention was signed

by the United States, more than six years before

it entered into force, and seven years before this

Court announced that the grant made by the Sub-

merged Lands Act of May 22, 1953, was to be

measured by the rules of the Convention rather

than by the principles followed by the United

States at the time the Act was passed.” Id. at 79-

80."°

It was no concession, as argued by the United

States. It was a statement of a firm policy by the

United States. To understand why it was not a conces-

sion, it is necessary to consider correspondence that

has been received from the United States bearing on

this subject. In the letter dated February 29, 1960,

from Honorable J. Lee Rankin, Solicitor General of

the United States, to Rear Admirable H. Arnold Karo,

Director, Coast and Geodetic Survey, Department of

Commerce, Washington 25, D.C., with a copy to Ray-

mond T. Yingling, Assistant Legal Adviser, Depart-

ment of State, and to Dr. G. Etzel Pearcy, Geographer,

Department of State, Mr. Rankin stated:

“On July 6, 1950, in response to a specific inquiry

in connection with the case of United States vy.

Louisiana, 339 U.S. 699, the State Department

advised us that Chandeleur Sound should be con-

sidered inland water. On October 26, 1950, in the

same connection, Dr. Boggs, then Geographer of

the State Department, joined with representatives

It will be seen from the above the United States, in

dealing with foreign countries, recognized water enclosed by

a string of islands as inland waters and it was only after the

ratification of the Convention on the Territorial Sea and the

Contiguous Zone that the United States changed its position.

The Convention on the Territorial Sea and the Contiguous

Zone was ratified on March 24, 1961, by the United States

as T. I. A. S. No. 5634 and on September 10, 1964, when the

requisite number of nations had ratified it the Convention

went into force.

of the Department of the Interior and this De-

partment in describing, on that basis, a line, (com-

monly referred to as the ‘Chapman Line’) to rep-

resent the official position of the United States

as to the coast line of Louisiana, that is, the base

line for the three-mile belt. We followed this. posi-

tion in our brief in support of our motion for

judgment on the amended complaint in the related

case of United States v. Louisiana, et al, No. 11,

Original, October Term, 1957, at page 177; a

draft of that brief was submitted to the State De-

partment in May, 1958, before it was filed, and no

question was raised on this point. The position

Was repeated at pages 43-44 of our reply brief in

the same case, a draft of which was likewise sub-

mitted to the State Department in August 1958.

At that time, Mr. Yingling, Assistant Legal Ad-

viser, did raise a question regarding Chandeleur

Sound; but at a conference between him, Dr.

Pearcy, and John F. Davis and George S. Swarth

of this Department, it was agreed that we should

continue to concede that the Sound is inland water.

Because of this concession, it was unnecessary for

Louisiana to press certain aspects of its argu-

ment as it might otherwise have wished to do.” '

The Court, in this case, held:

“It might be argued that the United States’

concession reflected its firm and continuing in-

ternational policy to enclose inland waters within

island fringes. It is not contended at this time,

however, that the United States has taken that

posture in its international relations to such an

Included in La. Exh. 283 (20). (Emphasis added.)

OS ee

extent that it could be said to have, in. effect,

utilized the straight baseline approach sanctioned

by Article 4 of the Convention. If that had been

the consistent official international stance of the

Government, it arguably could not abandon that

stance solely to gain advantage in a lawsuit to

the detriment of Louisiana.'’ Cf. United States

v. California, 381 U.S. 139, 168: ‘(A) contrac-

tion of a State’s recognized territory imposed by

the Federal Government in the name of foreign

policy would be highly questionable.’ We do not

intend to preclude Louisiana from arguing before

the Special Master that, until this stage of the

lawsuit, the United States had actually drawn

its international boundaries in accordance with

the principles and methods embodied in Article

4 of the Convention on the Territorial Sea and

the Contiguous Zone.” 394

It is clear that the United States recognized,

prior to the adoption of the Convention on the Terri-

torial Sea and the Contiguous Zone, that Caillou Bay

was inland waters under the rules then recognized

by the United States in its relation with foreign na-

tions.'* This is another instance where the United

States, after the adoption of the Convention on the

Territorial Sea and the Contiguous Zone, is attempting

17It is noted that the Supreme Court did not have the

above document or other related materials contained in Ap-

pendix A and La. Exh. 178 before it at the time of its 1969

opinion.

ISThere is attached hereto Appendix A, a Chronological

listing of Documents Relating to the United States and In-

ternational Law on Islands and Groups of Islands Enclosing

Inland Waters.

to deprive Louisiana of title which was validly vested

in Louisiana prior to the adoption of such Convention.

If the Special Master fails to recognize Caillou

Bay as historic inland waters, it will be necessary

for the Special Master to decide whether the United

States by its ratification of the Convention on the

Territorial Sea and the Contiguous Zone divested Lou-

isiana of title to Caillou Bay which had ripened in

Louisiana prior to the United States’ adoption of such

Convention.

The United States, in its suggested findings of

fact and conclusions of law submitted to the Special

Master by letter dated December 3, 1973, argues “At

all events, regulation of fishing up to 12 miles from

shore (which would more than encompass all of

East Bay) could as well be viewed as the assertion

of a territorial sea of that width.” (Page 17 (d) ),

and then stated: Thus, any acquiescence by foreign

fishermen in Louisiana’s shrimping and fishing reg-

ulations as applied to the most seaward portions of

East Bay would prove no more than that they were

willing to treat the area as part of the American

territorial sea—not inland waters of the United

States.” Page 17 (f). This not only ignores the recency

of the 12 mile fishing zone position of the United

States in foreign relations and its former rigid posi-

tion on the three mile rule, it also implies that the

United States recognized that Louisiana did enforce

its fishing and shrimping regulations in the total of

East Bay against foreigners as well as nationals, but

argues that such would not establish the waters of

OTDM ANON NED EORTC AI TE

East Bay as inland waters. This was the same argu-

ment made by the United States in the Alaskan case

and was rejected both by the lower court and the

United States Circuit Court for the Ninth Circuit.

In his report, the Special Master seems to accept the

argument of the United States that all of the acts

performed by Louisiana in East Bay were consistent

with the character of those waters as territorial sea,

and thus errs.

The United States, in effect, drew straight base-

lines around Caillou Bay.!" In our briefs we discussed

proof of the firm and continuing policy of the United

States in its international relations to treat island

fringes as enclosing inland waters. This policy was

given specificity by use of a ten-mile standard and

even applied in this very litigation for twenty years

until the 1968 motion. See Appendix A. We there

present the history of this policy: in esse, starting in

the 1860’s with the recognition of Spanish claims in

Cuba: thereafter with the recognition of British

Bahama claims; in the recognition of Cuban island

claims in 1955; in the work of Boggs for the 1950

Hague Conference; the application of Boggs work

in the re-measurement of the United States in 1940;

the 1946 publication of that standard in the Depart-

ment of Commerce work Measurement of Geographic

This is true also at East Bay and generally in the Mis-

sissippi Delta, but is especially pertinent to East Bay; there-

fore, for convenience in presentation, the treatment of the

question is given under Caillou Bay but reference is made to

Mississippi Delta straight lines also.

So oa a 4g

Bes ORL eae

Area of the United States (Louisiana exhibit 52(1) );

the drawing of the Chapman line in collaboration with

the State Department; in the position publicly recog-

nized and urged in this litigation from 1948 until

1968; in the Coast and Geodetic Survey publication,

Shore and Sea Boundaries; in the 1951 letter from

the Secretary; in the interdepartmental work of 1961;

and in other actions treated in Appendix A. These

facts and others certainly show a firm and continuing

policy to enclose as inland those waters within island

fringes. This is all the Court suggested was necessary

to arguably show that the United States had in effect

drawn straight baselines. However, Louisiana pre-

sented much stronger evidence.

We showed the publication of the Chapman line

actually enclosed Caillou Bay as inland waters. (There

can be no stronger proof than this that the Bay was

recognized as inland waters until after the litigation

started.) We showed, additionally, that the Bureau

of the Census had drawn baselines around Caillou

Bay in the 1940 Census measurement of United

States territory. Additionally, all affected federal

agencies concurred in the closing line for Caillou Bay

in 1961. Similarly, there was unchallenged proof that

lines were drawn around East Bay and the entire

Mississippi Delta by federal agencies, including lines

related to bird reservations, game refuges, naviga-

tional regulatory lines, and the 1940 Measurement of

Geographical Area lines (Louisiana exhibit 52(1) ).

This is but to name a few.

It is a clearly impermissible contraction of terri-

tory to now deny inland status of a bay which, even

during twenty years of oil litigation claims had been

recognized to be a bay since 1812 and which no foreign

nation had ever claimed to be high seas. There is

clearly then a need for the Master to pass upon the

issue of whether the State of Louisiana may be di-

vested of recognized territory in the name of foreign

relations. See Appendix A and historic Caillou Bay

findings requested in the attached motion.

General and Concluding Comments on Historic Bays _

We have recounted here much material relative to

East Bay and Caillou Bay both because of its impor-

tance and because it is equally applicable in other

major areas of the Mississippi Delta claimed on historic

bay grounds. Thus, for example, the long history of

point-to-point law enforcement including patrols by

armed vessels excluding out-of-staters and foreigners

in Fast Bay as per the deposition of Captain Schouest,

Captain Von Lubbe and other Louisiana law enforce-

ment commanders of armed vessels, applied as well

throughout the whole Mississippi Delta as did the

mineral leasing, fisheries regulations, statutory claims

and other acts, all of-which also affected Caillou Bay

and for which repetitive discussion is unnecessary.

There are certain powerful statements, though, which

appertain to all of the waters claimed on historic bay

grounds which this selective discussion of particular

problems in the Master’s report may not have high-

lighted.

It is undisputed that prior to the determination

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of the United States to litigate with California no

government but Louisiana laid claim to the waters now

in litigation.

It is undisputed that even after the United

States determined to litigate with California, no na-

tion in the entire world has disputed Louisiana’s

claim to these waters but the United States.

It is undisputed that as part of the federal con-

stitution the states assigned a part of their sovereign

rights—dealing with other nations—to the federal

government, and the latter is not authorized to use

this power to the detriment of the states and the en-

richment of the federal treasury.

It is undisputed that the purpose of this domestic

litigation is a division of the submerged mineral re-

sources between the state and federal government but

that by action to which Louisiana was not a party,

the Federal Government seeks to prevail by giving

away American territory that no foreign government

seeks to get.

It is undisputed that the reference in the Conven-

tion on the Territorial Sea and Contiguous Zone made

long after the Submerged Lands Act to historic waters

would justify the United States in successfully main-

taining that character of these waters through the

activities of Louisiana against any possible foreign

claimant.

It is undisputed that before this litigation be-

tween the federal and state governments, the internal

status of these waters as part of the United States

and part of the territory of Louisiana was never

challenged by any nation. Not until the California

ease, decided by a divided court in 1947, was tnere any

concept of a federal belt around the seaward states.

It is undisputed that the Constitution of the

United States forbids depriving a state of its territory

without its consent.

In all issues between a littoral nation and another

as to the extent of internal waters, the littoral nation

is entitled to protect its economy and safety by

choosing the most seaward and not the most inland

points to serve in marking its boundary so long as

there is geographic or historic support for such point.

In the resolution of this conflict, where reasonable

choices exist, that one should be made which best pre-

serves American territory.

If unchallenged oyster leases dating back 70 years

are not enough to show waters were recognized as

inland waters of the state; if mineral leasing both in

Caillou Bay and East Bay and all of the Mississippi

Delta bays dating back 20 years before this oil claim

was first made is not enough; if official recognition

of the status of Caillou Bay as inland waters between

1948 and 1968 in this oil litigation is not enough;

if 79 years of navigational control over East Bay

is not enough; if straight baselines drawn by the

Bureau of the Census around East Bay and other

bays of the Mississippi Delta and Caillou Bay are

OS eS ET

Gn AAR EEC

Rist

not enough; if bird reservations encompassing East

Bay on maps are not enough; if official designations

by the Secretary of the Interior to reflect Department

of State policy in this litigation are not enough, as at

Caillou Bay with the Chapman Line; if 100-plus years

of continuous uninterrupted policy on island fringes

for Caillou Bay is not enough; if the arrest of for-

eigners is not enough if scores of years of armed

patrols enforcing fishing regulations is not enough;

if a point-to-point system of juridical ascertainment

and law enforcement in the Mississippi Delta and at

Caillou Bay is not enough; if at least 144 years of

satisfaction of precise geographic standards at East

Bay is not enough—f all of this together is not enough

to show a title by historic or straight baseline con-

siderations, then the Master will have decided that the

language of the Supreme Court is in fact illusory and

meaningless, for he will have held in essence that the

historic waters and historic bay rules and straight

baseline considerations suggested by the Court were

hollow hopes and that only present geographic or

geomorphic facts are functionally relevant.

We turn to those geomorphic matters now on a

highly selective basis to avoid rebriefing. Here and

in our discussion of historic straight baseline matters,

omission of positions previously reached is not to be

construed as an indication of waiver of these positions

but is occasioned by the selective nature of this memo-

randum. See proposed findings for more fully detailed

findings requested of the Master on geomorphic

matters under the Convention.

JURIDICAL AND GEOGRAPHIC MATTERS:’

East Bay Juridical Status

The Master has tentatively decided against the

use of tributary waters for area measurement dis-

tinguishing the only precedent, the Thames Estuary

decision, on the ground that East Bay is not an

estuary. The rules that were applied in the Thames

Estuary were based not per se on its status as an

estuary, but on the fact that estuaries are treated as

bays. See 1 Shalowitz 217. Thus, the Master has pre-

sented a fortiori reasoning to follow the decision, as

grounds for distinguishing it. The case is indistin-

guishable. It will weaken the report, unless the report

follows the case, instead of seeking distinctions.

If the precedent is followed only to the extent of

employing those waters which are directly tributary

to the bay, the Thames decision could not reasonably

be used to attack the Master’s report in the Supreme

Court. If it is not followed, and the present draft

employed, the Master’s rejection of the use of tributary

waters will be subject to attack through a host of

arguments, @.9.:

1. The draft is inconsistent with the Supreme

Court’s semicircle test usage of geographically distinct

waterbodies within waterbodies, separated only by

streams and stream bank islands. 394 U.S. 11, n. 65,

““"It will assist the Master in examining these arguments

to review the findings requested for each area, and to use

the syllabus of the requested findings, attached hereto as

Appendix B.

see illustration La. Reply Brief, p. 58 and Fig. 58A in

re Zinzin Bay and Riverside Bay.

2. In deeming “arbitrary” a system which

would terminate tributary water measurement at the

point where the tributary nature of the waterbody

ceases, the draft errs.

3. Even if the method of terminating measure-

ments of tributaries were they join the Mississippi

proper was “equally arbitrary,’ as cutting them off

at their mouths, the decision to cut them off at their

mouths would violate a court applied principle calling

for selection of the method enclosing the greater extent

of waters. See Finding 28.

4. The Master solves the problem of deciding

how far up tributaries to go by not going up into them

at all, thus making a choice that would tend to defeat

the semicircle test in a marginal case. This is error,

See Finding 28.

5. Like bays, ponds or coves linked only by

narrow passages or channels to an outer indentation,

narroW passages or channels are tributary waterways

themselves and should be included under the Court

approved rule. 394 U.S. 11, 51, n. 66.

“In the application of the semicircular rule

to an indentation containing pockets, coves or

tributary waterways, the area of the whole in-

dentation (including pockets, coves, etc.) is com-

pared with the area of a semi-circle.’ ’’ Quoting 1

Shalowitz 219.

6. The Court said follow the Convention; the

Convention says follow the low water mark.

The reference to the Master commands that his

report be “consistent with this opinion.” 394 U.S. 11,

78. As a bare minimum, even partial consistency would

require acceptance of Method 2 and use of passages

and channels. Complete consistency would also call

for use of islands within the bay. Method 3, and use

of the deteriorated island remnants of the Joseph

Bayou area as water are also required by the opinion.

We respectfully point to the Special Master’s

error in saying that Louisiana had endeavored to in-

clude evidence of the deterioration of the Joseph Bayou

area (relative to the semicircle test) only in a brief

after the record had been closed. Photography of the

Joseph Bayou area was included in a post-argument

technical memorandum requested by the Master merely

to illustrate that the facts of Joseph Bayou deteriora-

tion discussed by witnesses and shown by a mass of

photographs in the record were continuing even at

present. The Master’s report reads as though the only

evidence of Joseph Bayou land mass deterioration was

evidence after the closing of the record. This is clearly

erroneous. See materials treated in findings hereafter

requested and especially testimony of Allan Ensminger,

the surface photograph panorama introduced with the

testimony of Dr. Morgan, La. Exh. 342, and low

oblique aerial photography in the record, e.g., La. Exh.

9. These simple, eloquent pictures will cause the Su-

preme Court to feel as qualified to pass upon this

question as anyone else looking at the photographs.

They must have been understandably overlooked

in examining the extensive record. We are confident

that upon a review of this record material and other

record evidence which has been overlooked, the Master

will correct his report by changing his conclusions to

fit the record evidence. Or, if the Master deems the

record evidence immaterial, then he should deny the

request for a finding on that ground to form an ap-

pealable basis for Louisiana to seek review as to the

materiality of the photographs, and the Morgan-

Ensminger testimony.

If the Master now recognizes that the deteriora-

tion of Joseph Bayou landforms was shown by record

evidence, but adheres to the approach rejecting use

of tributary waters, Closing Line B should be rec-

ognized. It failed to meet the semicircle test using

Method 1 by a mere 820 acres out of 14,714 acres.

The Joseph Bayou island remnant areas (so much

like the deteriorating fragments of land in West Bay

recognized by the Court as water for measurement)

obviously affect materially more than 820 acres. See

La. Exh. 197 and requested findings.

By Method 2, using tributary waters, the data

would justify Line B, even if Joseph Bayou deteriora-

tion were not recognized.

By Method 3, Line A even presently satisfies the

semicircle test. This conclusion is fortified by inclu-

sion of Joseph Bayou land remnants as islands.

Even using conservative Method 1 and ignoring

evidence of the deterioration of Joseph Bayou, Line A

satisfies all relevant tests until 1956. Not until that

year did it cease to satisfy the semicircle test. See

arguments supra, under historic waters, detailing the

fact that by the conservative method approved by the

Master, and by application of the Convention retro-

actively, as the Court did in the California case, Line

A enclosed a bay on June 5, 1950 until 1956.

Issue 6(e) requires answer to the question:

“Have there been changes in the coastline

that would affect future distribution of revenues

heretofore accrued since June 5, 1950, and, if

so, when did the changes become effective?”

Precise answer has not been given to this ques-

tion. Only by accepting Method 3 and Line A, or by

finding that East Bay is an historic bay, can the

status of geomorphic alternatives over time be ignored.

Serious oversight may otherwise occur, such as the

oversight in failing to give effect to Line B’.

The federal government repeatedly admitted Line

B’ met the semicircle test by the conservative method

the Master approved. It plainly satisfies headland and

other bay considerations. Yet the draft report ignored

it. Federal suggestions to reject it on other grounds

simply won’t hold water, as our oral discussion shall

show.

~ On Cowhorn Island, the Master is eminently cor-

rect, except that he does not carry the finding for-

ward in time as the evidence warrants. Removal from

the December 6, 1969 chart was based on a lawyer’s

instructions, and contrary to normal hydrographic

standards used under unsuspicious circumstances. It

quite obviously resulted from a hurried effort to over-

come the effect of depositions which had shown there

was a survey basis—a hydrographic survey basis—

to placement of the island on the chart. This caused

the government to realize Louisiana would rely on

the chart and so the chart was changed, with no new

evidence to justify the change, no evidence beyond

that which had previously been considered and re-

jected at an unsuspicious time. The survey, later made

to justify a further revision, was made immediately

after a hurricane, and was worthless to reflect normal

shoreline conditions, as the federal survey party chief

admitted.

That survey was also remarkably deficient in

other respects, e.g., taking soundings seaward of an

area to show that the area was below the low water

line. See La. Reply Brief, p. 149, Fig. 149A, which

shows the quality of that proof. Thus, even if the

Master concludes that Cowhorn Island no longer existed

after December 6, 1969 because of the 1970 survey,

the same cannot be said for the additional low water

lines between West Bay and Pass Tante Phine, at the

mouth of Pass du Bois. When the Joint Pretrial State-

ment was filed in Memphis on December 5, 1969, the

alleged December 6 revision of the chart was not yet

made. Obviously, Issues 8(a) through (e), indeed

all of the issues related to the effect of Chart 1272,

are based on the editions extant on or before Decem-

ber 5, 1969. Hurried or post-hurricane changes in the

chart thereafter, so obviously timed at a suspicious

date, under the admitted direction of counsel, and

plainly for purposes of this litigation, should be

ignored, not merely because of their unreliable char-

acter, but because the Statement of Issues does not

appertain to them. |

Louisiana expressly objected to introduction of

the post-December 5, 1969 revisions of Chart 1272.

We accordingly request a finding that the parties

agreed in Memphis in a meeting before the Master on

December 5, 1969 to issues pertaining to Chart 1272,

and this agreement therefore did not reasonably relate

to editions revised after December 5, 1969. We further

request a finding that post-December 5, 1969 revisions

of Chart 1272 be rejected as intrinsically unreliable,

due to the suspicious timing of the chart revisions,

their plain purpose to affect this litigation, and the

absence of reliable survey evidence to show normal

shoreline conditions to support the revisions.

Caillou Bay

Islands which have been treated realistically as

part of the mainland and as forming the side of

“Florida Bay in the report of the Florida Master,

presents less favorable assimilation data than the facts

of the Isle Derniere. It is inconceivable that in the

context of no final judgment, the Supreme Court of

the United States will allow a passing error in a foot-

note concerning a misunderstanding of what had been

argued to control a Louisiana Special Master’s report

and compel ignoral of the geomorphological facts at

Caillou Bay that are markedly more favorable to bay

classification than those of Florida Bay and the Keys.

See requested findings and related illustrations com-

paring the data. Even if the Master feels bound by

the passing footnote remark, to avoid possible remand,

the report should reflect factual findings to enable

the comparative data to be reviewed by the Supreme

Court; or there should be a finding that the requested

findings are irrelevant or immaterial under the

Court’s opinion in order to furnish a basis of review.

Of course, Louisiana maintains, as with all of the

requested findings it has proposed, that all are ma-

terial and relevant, but the purpose in submitting

them is to perfect the record to enable Louisiana to

argue that particular requested findings should have

been granted if they in fact have not been granted.

Similarly, the great array of data showing that

Isle Derniere segments are to reasonably be considered

as part of the mainland ought to be the subject of

findings. These and other detailed findings are re-

quested for Caillou Bay.

Other Major Matters

The Florida decision and island assimilation

problems affect numerous bay headlands along Lou-

isiana’s coast. We have therefore prepared findings

which are substantially self briefing to augment or

correct the Master’s report on several island matters.

Other miscellaneous details are important also,

beret tots jo

aay ~

ae ~

but are not amplified in this memorandum although

treated in the findings. This is of course for the pur-

pose of brevity and is not to be construed as an indica-

tion of the relative importance of the matter.

Certain corrections and reconsideration of Atcha-

falaya Bay problems are requested in a finding.

The Master’s decision at Ascension Bay is correct,

but can be reinforced by certain specific additional

findings which are requested. Similarly, East Bay

geomorphic findings of the Master which were favor-

able to Louisiana can be reinforced by requested find-

ings.

Respectfully submitted,

WILLIAM J. GUSTE, JR.

Attorney General

State of Louisiana

PAUL M. HEBERT

VICTOR A. SACHSE

OLIVER P. STOCKWELL

FREDERICK W. ELLIS

WILLIAM E. SHADDOCK

Special Assistant Attorneys General

May 13, 1974

APPENDIX A

A Chronological Listing of Documents Relating to

United States and International Law on Islands

and Groups of Islands Enclosing Inland Waters

Page

I) Insular Features Enclosing Inland Waters

(United States Practice) .............. 63, 64, 75, 85,

88, 93-109, 112-126

Il) Codification Attempts for Groups of Islands....69-

74, 78-88, 11

III) Straits Leading to Inland Waters ........ 69-74, 77,

105-108, 112, 121, 122

IV) Assimilation of Islands to Form a Bay’s Peri-

an 65-68, 89-91, 103-105, 109-110, 126

Index

Page

1863: Letter from U.S. Secretary of State Seward

to Spanish Minister Gabriel Tassara.............. 63

Portion of Map of Cuba from Rand-MeNally, THE

International Atlas (1969), p. 230 000... 64

1891: United States Supreme Court in Manchester

v. Massachusetts, 139 U.S. 240, 243 2.000.000... 65

Map of Buzzard’s Bay from Strohl, /nternational

Law of Bays at p. W770... as ae

1910: The North Atlantic Coast Fisheries Arbitra-

NaS AR ee CANTER eR MOAT OD ik PL DR 67

Portion of Yarmouth-Windsor Map (Nova Scotia)

Showing Brier and Long Islands ............... wate? 68

Portion of Yarmouth-Windsor Map (Nova Scotia)

Showing Closing Line for Mira Bay, which

Uses Seatari Island as a Headland ._.......... 68

1930: Hague Conference—International and

United States Proposals Treating Island

Groups and Straits Leading to Inland Waters 69

1930: S. W. Boggs’s Explanation of the United

States Proposal at the Hague Conference... 74

1940: Census Bureau Delimitation of Internal Wa-

secre oe seek duldcv easel bose 75

1951:Letter from the United States State Depart-

ment to the Justice Department Explaining

National Position on International Law of the

cg ne nelle rey ne Gouin: aR

1952: United States v. California, Report of the

Special Master

1952: International Law Commission ... ae

Page

1953: International Law Commission _..... bate eiaces 79

1954: International Law Commission ...... ee

1955: International Law Commission _ 84

1955: U.S. Position on Cuban Decree No, 1948 85

1956: International Law Commission .......... 86

1958: Geneva Convention on the Territorial Sea

and the Contiguous Zone

1958: United States Brief in United States v. Lou-

isiana, et al., No. 11, Original .......................... 88

1958: Historic Bays Memorandum by the Secre-

tariat of the United Nations, and illustration 89

1959: ““Measurement of the U.S. Territorial Sea,”

by G. Etzel Pearcy, and illustration 9]

1960: Letter from the Justice Department to the

U.S.C. &G.S. Regarding the United States

Position Concerning Islands Along Louisiana’s

RM Sete Ci Peetcater es Chg Ok Sy ve. ee

1960: United States v. Louisiana, et al., utaatiieat)

Court Decision . 95

1961: Letter from the Solicitor General to the Di-

peror, UitA. @G5. ......0:....<.... 96

1961: some =e A. L. Shalowitz to the Recrae

1961: an ace the Director, U.S.C. &G.S

the Soucttor General ......................0600004...-0000.. ie

1961: Memorandum by A. L. Shalowitz of the

U.S.C. &G.S. Attached to Admiral Karo’s Re-

sponse to the Solicitor General’s Letter of

pemnen G, ROG) neces: hice 103

1962: Shalowitz’s Conception of the ‘Pees Line107

PENS pe OE

a tt sige ‘uci

9:3 AU te ER AE

Page

1962: Shalowitz Discussion of Fringing Islands

Ajong Louuminwa’s Cotst « .....-....2. oc 109

1962: Shalowitz Discussion of Island Group Sta-

tus Under the Geneva Convention on the Ter-

ritorial Sea and the Contiguous Zone | ...........111

1963: U.S. Brief in United States v. eee

Straits Leading to Inland Waters .. ees 2

1963: U.S. Brief in United States v. Caithiniin

10-Mile Island Rule at Chandeleur Sound......113

1963: U.S. Brief in United States v. California—

10-Mile Island Rule at Chandeleur Sound Ver-

sus Santa Barbara Channel ..............................114

1963: U.S. Brief in United States v. California—

U.S. Position on Straits Leading to Inland

Waters off Cuba and Alaska

Portion of Map of Alaska from the Brief in Sup-

port of Exceptions of the State of California

to the Report of the Special Master in United

States v. California, No. 5, Original

1965: United States v. California, Supreme Court

Decision 121

1966: United States v. California, Supplemental

SEE SESSIONS etal Sa eRe te! ant lahat hea 122

1968: United States Brief in United States v. Lou-

ROUUII, Tas DB, SPU MIII oooobinoic cane ceeds cacnevavtivcccc dee

1974: United States v. Florida, No. 52, Original,

Report of Albert B. Maris, Special Master. ...126

1863: Letter from U.S. Secretary of State Seward to

Spanish Minister Gabriel Tassara

The undersigned has further ascertained, as he

thinks, that the line of keys which confront other por-

tions of the Cuban coast resemble, in dimensions, con-

stitution and vicinity to the mainland, the keys which

lie off the southern Florida coast of the United States.

The undersigned assumes that this line of keys is

properly to be regarded as the exterior coast line, and

that the inland jurisdiction ceases there, while the

maritime jurisdiction of Spain begins from the ex-

terior sea front of those keys.

Letter dated August 10, 1863, which appears in 1 Moore

Digest of International Law, p. 711 (1906), introduced

into evidence before the Master as La. Exh. 356(3).

Also see La. Exh. 154, 4 Whiteman, Digest of Interna-

tional Law, 274-75.

weed wre

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sone Gov att? F : toon bs — n b ax pettaenay woomeye te "

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revig

ew.

COPY BOUND VERTICAL

: 65

1891: United States Supreme Court in Manchester v.

Massachusetts, 139 U.S. 240, 243

The Commonwealth further offered evidence tending

to show that the distance between the headlands at the

mouth of Buzzard’s Bay, viz., at Westport, in the

county of Bristol, on the one side, and the island of

Cuttuhunk,-in the county of Dukes, on the other side,

was more than one and less than two marine leagues.

The island of Cuttyhunk is the most southerly of the

chain of islands lying to the eastward of Buzzard’s

Bay, and known as the Elizabeth Islands. The distance

across said bay at the point where the acts of the de-

fendant were.done is more than two marine leagues,

and the opposite points are in different counties. The

defendant did not dispute any of the testimony offered

by the Commonwealth... . (Emphasis added. )

“‘

Manchester v. Massachusetts, 129 U.S. 240. 248 (1891).

Map of Buzzard’s Bay

UNITED STATES

Cape Cod

Bay

ATLANTIC OCEAN

500,

rs cant >/ ifs

ee eos CHATHAM

PORT |

I mnine sa Ashe

NANTUCKET

70° 30'

70°

BUZZARDS BAY

Strohl, Jvternational Law of Bays at 77.

_——

COPY BOUND CL

1910: The North Atlantic Coast Fisheries Arbitration

For or near the following bays the limits of exclu-

sion shall be three marine miles seawards from the

following lines, namely:

For or near Barrington Bay, in Nova Scotia, the

line from the light on Stoddart Island to the light on

the south point of Cape Sable, thence to the light at

Baccaro Point; at Chedabucto and St. Peter’s Bays, the

line from Cranberry Island light to Green Island light,

thence to Point Rouge; for Mira Bay, the line from the

light on the east point of Scatari Island to the north-

easterly point of Cape Morien; and at Placentia Bay,

in Newfoundland, the line from Latine Point, on the

eastern mainland shore, to the most southerly point of

Red Island, thence by the most southerly point of Mera-

sheen Island to the mainland.

Long Island and Bryer Island, on St. Mary’s Bay,

in Nova Scotia, shall, for the purpose of delimitation,

be taken as the coasts of such bays. [Emphasis added. ]

Finding +2 in the North Atlantic Coast Fisheries Arbitration,

Scott The Hague Court Reports, 189 (1906).

—

IN CENTER

FBS SIP ERLE CEE TRIAL AS ELON BNE AEG IIA A PRD NG PORE IRA ATP OE RITE NE abs ts nih Fas ate ———e

. ;

7 Red Bluth.

ee Cove ,

silbert

2 |

Wh *

Church Point

North Pt.

Brier island

Westport

Whipple Pr. ‘ i. ~ vee

‘ ey lee ee

e Meteghan

Sta. =

| Fae

A (ids Ricken)

ial \o 125) r i\)

Portien of Yarmouth-Windsor map (Nova Scotia) published

by the Canadian government showing Brier and Long Islands,

which form the side of St. Mary Bay. (La. Exh. 325.)

LD \

a eet Ed

10’ 60°00"

52 $48

Portion of Yarmouth-Windsor map (Nova Scotia) published

by the Canadian government showing closing line designated

for Mira Bay which utilizes Scatari Island as a headland. %

1930: Hague Conference—International and United

States Proposals Treating Island Groups and

Straits Leading to Inland Waters

ANNEX I.

BASES OF DISCUSSION DRAWN UP BY THE

PREPARATORY COMMITTEE, ARRANGED IN

THE ORDER WHICH THAT COMMITTEE

CONSIDERED WOULD BE MOST CON-

VENIENT FOR DISCUSSION AT

THE CONFERENCE

* * * * *

Basis of Discussion No. 13.

In the case of a group of islands which belong to

a single State and at the circumference of the group

are not separated from one another by more than

twice the breadth of territorial waters, the belt of ter-

ritorial waters shall be measured from the outermost

islands of the group. Waters included within the

group shall also be territorial waters.

The same rule shall apply as regards islands

which lie at a distance from the mainland not greater

than twice the breadth of territorial waters.

Basis of Discussion No. 17

Where a strait is merely a channel of communica-

U.S. Exh. 74, League of Nations, Acts of the Conference

for the Codification of International Law, Held at the

Hague from March 13th to April 12, 1930, III Minutes

of the Second Committee, Territorial Waters, C.351(b).

M.146(b) 1930.

> RN eA Rees EU A £ ast ae

tion with an inland sea, the rules regarding bays ap-

ply to such strait and sea.

ANNEX II.

OBSERVATIONS AND PROPOSALS REGARDING

THE BASES OF DISCUSSION PRESENTED TO

THE PLENARY COMMITTEE BY VARIOUS

DELEGATIONS.

Japan.

AMENDMENTS TO BASES OF DISCUSSION NOs. 4, 5, 8, 9,

11, 13, 14, AND 15, CIRCULATED TO THE MEMBERS

OF THE COMMITTEE ON MARCH 18TH, 1930.

. Basis of Discussion No. 13.

1. Delete the first sentence of the first paragraph

from the words “twice the breadth of territorial wa-

ters” to the end, and substitute the words “‘ten miles”,

and add immediately afterwards the following sen-

tence: “The whole group shall be regarded as a single

unit”.

2. Omit the second sentence of the first para-

_ graph.

3. In the second paragraph, substitute for the

words “twice the breadth of territorial waters’, the

words “‘ten miles”.

The article as revised will read as follows:

“In the case of « group of islands which be-

long to a single State and at the circumference

of the group are not separated from one another

righ wan tok Ge Gogane cate mast ato Meeetente teeter en ee ' —_ ” a |

ee a F

by more than ten miles, the whole group shall be

regarded as a single unit. The same rule shall

apply as regards islands which lie at a distance

from the mainland not greater than ten miles.”

[p. 189.]

AMENDMENTS TO BASES OF DISCUSSION NOs. 3 AND

6, 7, 8, 9 AND 18, 12, 13 AND 14, 10, 11, 15, 16, 17,

AND PROPOSALS FOR THREE NEW BASES OF DISs-

CUSSION CIRCULATED TO THE MEMBERS OF THE

COMMITTEE ON MARCH 27TH, 1930.

These Bases are submitted in the interest of find-

ing a set of formulae for the delimitation of territorial

waters which shall be simple in application and def-

inite in result. This is believed to be the first attempt

to formulate a comprehensive and systematic body of

rules for this purpose, and it is suggested that they

be studied objectively, so far as practicable, on charts

and maps. Two pages of diagrams are attached to

illustrate the text.

* * * *

F. Straits.

Bases of Discussion Nos. 15, 16 and 17.

The delimitation of territorial waters in straits

shall be made in the following manner:

* * *

3. In the absence of agreement to the contrary,

where a strait is merely a channel of communication

with an inland sea, the rules regarding bays apply to

such strait.

es eis

G. Simplification and Assimilation.

New Basis of Discussion.

1. Where the delimitation of territorial waters

would result in leaving a small area of high sea totally

surrounded by territorial waters of one or more States,

the area is assimilated to the territorial waters of such

State or States.

2. Where the delimitation of territorial waters,

as prescribed in the foregoing articles, results in a

pronounced concavity such that a single straight line,

not more than four nautical miles in length, drawn

from the envelope of the arcs of circles on one side to

the envelope of the ares of circles on the other side en-

tirely closes an indentation, the coastal State may re-

gard the body of water enclosed within the envelope of

the ares of circles and said straight line as an exten-

sion of its territorial waters if the area exceeds the

area of a semi-circle whose diameter is equal to the

length of the straight line; if the coastal State chooses

to assimilate these waters it shall notify the nations

which may be interested therein. [pp. 197-201]

Appendix 2.

REPORT OF THE SECOND SUB-COMMITTEE.

co * * *

GROUPS OF ISLANDS

Observations.

With regard to a group of islands (archipelago)

and islands situated along the coast, the majority of

the Sub-Committee was of opinion that a distance of

- 73

ten miles should be adopted as a basis for measuring

the territorial sea outward in the direction of the high

sea. Owing to the lack of technical details, however,

the idea of drafting a definite text on this subject had

to be abandoned. The Sub-Committee did not express

any opinion with regard to the nature of the waters

included within the group.

STRAITS.

Observations.

The application of the article is limited to straits

which serve as a passage between two parts of the

high sea. It does not touch the regulation of straits

which give access to inland waters only. As regards

such straits, the rules concerning bays, and, where

necessary, islands, will continue to be applicable. [ pp.

217-20]

1930: S. W. Boggs’s Explanation of the United States

Proposal at the Hague Conference

Efforts of the conference to define a group of

islands, in terms of numbers, size, and relative posi-

tion of islands, did not produce practical results. The

real reason for making a special case of islands is that

the three-mile envelope leaves undesirable pockets. It

is the American viewpoint that the only practicable

way to eliminate these pockets is to consider the pockets

as pockets, rather than to consider the islands as is-

lands. /t is believed that the general proposal for the

assimilation of anomalous pockets of high sea by a

geometrical means avoids the definition of a “group

of islands,” just as the geometrical solution of the pro-

posal relating to bays avoids the definition of “bays,”

and that in both cases the desired results are obtained

in an entirely satisfactory manner. [Emphasis added. ]

U.S. Exh. 75, Boggs, “Delimitation of the Territorial Sea:

The Method of Delimitation Proposed by the Delegation

of the United States at the Hague Conference for the

Codification of International Law,” 24 American Journal

of International Faw 541 (1930).

ROLE LLL I ILI I OPE MER Ne EEG BION AR ca CAML RES ra Mm Sig A

pad

Prats

1940: Census Bureau Delimitation cf Internal Waters

A solution for the problem of setting outer limits

for the United States was obtained by special adapta-

tions, pertaining to embayments and islands, of the

excellent principles established by S. W. Boggs, Geo-

grapher of the Department of State, in delimiting the

territorial waters of the United States."' These adapta-

tions of Boggs’ principles resulted in the following

rules for delimiting coastal and Great Lakes water,”

and thereby, in part, for setting the outer water limits

of the United States (fig. 8): (1) where the coast line

is regular it shall be followed directly unless there

are off-shore islands within ten nautical miles;"" (2)

where embayments occur having headlands of less than

ten and more than one nautical mile in width, a straight

line connecting the headlands shall set the limits:”

however, (3) the coast line shall be followed if the in-

dentation of the embayment is so shallow that its wa-

ter area is less than the area of a semicircle drawn

using the said straight line as a diameter; and (4)

two or more islands less than ten and more than

one nautical mile from shore shall be connected by a

straight line or lines, and other straight lines shall be

drawn to the shore from the nearest point on each end

island.” [Emphasis added. ]

La. Exh. 52(1), Proudfoot, Measurement of Geographic Area,

Dept. of Commerce, Bureau of the Census (1946) p. 33.

PROP RAGAN

"Boggs, S. W., “Delimitation of the Territorial Sea, The

Method of Delimitation Proposed by the Delegation of the

United States at the Hague Conference for the Codification

of International Law,” American Journal of International

Law, Vol. 24 (July, 1930), 541-555.

"Termed “State water” and not subdivided among ad-

joining counties or minor civil divisions.

*°See Atlantic coastal strip, C. of fig. 8., plate I.

"See Atlantic coastal strips A. and B. of fig. 8., plate I.

®*sSee Pacific coastal strips H., J., K. and L. of fig. &.,

plates XII and XIII.

"See treatment of Florida Keys, Atlantic coastal strip

Q. of fig. 8.

he a a cagt ac Nie ee Le Bi re cos AE a IC

1951: Letter from the United States State Depart-

ment to the Justice Department Explaining Na-

tional Position on International Law of the Sea

With respect to a strait which is merely a channel of

communication to an inland sea, however, the United

States took the position, with which the second sub-

committee agreed, that the rules regarding bays should

apply (Act of Conference, 201, 220).

U.S. Exh. 93, a letter from James E. Webb, State Depart-

ment, to J. H. McGrath, Justice Department, dated No-

vember 13, 1951, also published in Appendix D of 1

Shalowitz Shore and Sea Boundaries, pp. 354-56 (1962).

1952: United States v. California, Report of the Spe-

cial Master

Straits

Subject to the special case of historical waters,

the position of the United States as to straits con-

necting two areas of open sea, as set forth by the Secre-

tary of State (ante p. 14), is that if both entrances

are less than six nautical miles wide the strait is ter-

ritorial waters but never inland waters. Otherwise,

the marginal belt is to be measured in the ordinary

way. If the strait is merely a channel of communica-

tion to an inland sea the ten-mile rule regarding bays

should apply. [Emphasis added. ]

Report of the Special Master in United States v. California,

No. 6, Original, October Term, 1952, 332 U.S. 19. Sub-

mitted October 14, 1952; Filed November 10, 1952, p. 27.

PARP ADAPT R TINE BES TEN REIN 16

1952: International Law Commission

The International Law Commission’s Special Rap-

porteur for the regime of the territorial sea, J. P. A.

Francois, included in his first report in 1952 the fol-

lowing articles and comments on reefs, islands, and

groups of islands: [p. 295]

* * * *

“T Article 10. Groups of Islands:] With re-

gerd to a group of islands (archipelago) and is-

lands situated along the coast, the ten-mile line

shall be adopted as the base line for measuring

the territorial sea outward in the direction of the

high sea. The waters included within the gfoup

shall constitute inland waters.

“Comment [p. 296]

* * * *

“3. The Rapporteur has inserted article 10

not as expressing the law at present in force, but

as a basis of discussion should the Commission

wish to study a text envisaging the progressive de-

velopment of international law on this subject.”

A CN.4 53, pp. 28-30: I] Yearbook of the Inter-

national Law Commission 1952, pp. 25, 35, 56-

37. [p. 297]

4 Whiteman 295-97.

1953: International Law Commission

Francois’ second report to the International Law

Commission in February 1953 effected the following

changes (II Yearbook of the International Law Com-

mission 1952, pp. 57, 65-70) :

4 * * *

The final sentence of article 10 which had read

that the waters within a group of islands constituted

inland waters (also supra) was deleted,

* * *

At the invitation of Professor Francois, a five-

man group of technical experts, acting in their per-

sonal capacity, met at The Hague from April 14 to

16, 1953, in order to examine certain questions of a

technical nature raised during the discussions of the

International Law Commission. (For the membership

of the Committee of Experts, see ante, p. 146.) Ques-

tions submitted by the Special Rapporteur to the Com-

mittee of Experts together with the answers of the

latter regarding delimitation of reefs and islands were

as follows:

II]

“Tf the low-water line may be replaced by a

straight base-line, as indicated by the Internation-

al Court of Justice in the Anglo-Norwegian Fish-

4 Whiteman 297-98.

a, Pees |

eries Case, what technical questions may arise as

“C. the islands, rocks and shallow waters

within T miles before the coast (T standing for

the width of the territorial sea)?

“2. Such ‘straight base-lines’ might be drawn

—if specifically justified by international law—

between headlands on the coastline or between

such headlands and islands less than 5 miles from

the coast or between such islands, provided such

headlands and or islands are not further than 10

miles apart.

“3. The Committee considered that between

three or more islands at a distance of less than

5 miles from each other, ‘straight base-lines’

might be drawn. In that case, these islands con-

stitute a group. Waters lying within the outer

base-lines around a group should be considered

as inland waters.

“4. The Committee recognizes as a special

case a group of islands in which one, but only one,

of the said connecting lines exceeds 5 miles though

not 10 miles in length. This case may be called a

‘fictitious bay’.

5. A ‘fictitious bay’ may also be formed by

a string of islands taken together with a portion

of the mainland coastline as provided for under

2m.

“6. The Committee agreed that ‘straight

base-lines’ should not be drawn to and from dry-

ing rocks and shoals. Their part in measuring

the territorial sea has been stated sub I.”

Report of the Committee of Experts, April

1953, contained in Addendum to the Second Re-

port on the Regime of the Territorial Sea by J. P.

A. Francois, Special Rapporteur, A/CN.4/61

Add.1, Annex, May 18, 1953, pp. 1-4.

Francois’ First Report, Apr. 4, 1952, Doe.

A CN.4 53, is printed in II Yearbook of the In-

ternational Law Commission 1952, pp. 25, 32-35,

36-37. Francois’ Second Report, Doc. A CN.4

61, Feb. 19, 1953, is printed in II Yearbook of the

International Law Commission 1953, pp. 57, 65,

67, 68-70. The addendum to the Second Report,

Doc. A CN.4 61 Add. 1, by Francois, together

with the annexed Report of the Committee of Ex-

perts, is printed 7bid., pp. 75, 77, 78.

As a result of the Experts’ Report, Francois sub-

mitted the following amendment and additions to his

second report in May of 1953:

* * *K *

“Article 5a

“2. In general, the maximum _ permissible

length for a straight base-line shall be 10 miles.

The base-lines may be drawn between headlands

on the coastline or between such headlands and

islands, provided such headlands and or islands

are not further than 10 miles apart. The base-

lines should not be drawn to and from drying

rocks and shoals. These lines constitute the delimi-

4 Whiteman 299-300.

tation between inland waters and the territorial

sea.

“T Article 9. Islands (unchanged ). ]

“Article 10°

“Group of islands

“Article 10 is modified as follows:

“1. Between three or more islands at a dis-

tance of less than 5 miles from each other, a

‘straight base-line’ may be drawn. In that case,

these islands constitute a group. Waters lying

within the outer base-lines around a group shall

be considered as inland waters.

“2. A group of islands in which one, but only

one, of the said connecting lines exceeds 5 miles

though not 10 miles in length, constitutes a “‘ficti-

tious bay’.

“3. A ‘fictitious bay’ may also be formed by

a string of islands taken together with a portion

of the mainland coastline as provided under arti-

cle 6, paragraph 5.” (A.CN.4 61 Add.1, pp. 5-6,

7.)

Addendum to Francois’ Second Report, May 18,

1953, printed in Il Yearbook of the International Law

Commission, 1953, pp. 75, 76, 77.

oe a Sa hie a i a ER lea a

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1954: International Law Commission

In his third report in February 1954, Francois

simplified his draft text on reefs to read:

* * * *

As to “Groups of islands”, the third report and

comment read:

“[Article 12. Groups of Islands:] 1. The

term ‘group of islands’, in the juridical sense, shall

be deemed to mean three or more islands enclos-

ing a portion of the sea when joined by straight

lines not exceeding five miles in length, except

that one such line may extend to a maximum of

ten miles.

“2. The straight lines specified in the preced-

ing paragraph shall be the base lines for measur-

ing the territorial sea; waters lying within the

area bounded by such base lines and the islands

themselves shall be considered as inland waters.

“3. A group of islands may likewise be formed

by a string of islands taken together with a por-

tion of the mainland coastline. The rules set forth

in paragraphs 1 and 2 of this article shall apply

pari passu.

“Comment

“Sub-Committee II of the 1930 Conference

abandoned the idea of drafting a text on this sub-

ject. The Committee of Experts endeavoured to

provide also for this case. In drafting the article,

the rapporteur followed the Committee’s sugges-

tions.” (/bid., p. 13.)

4 Whiteman 300-01.

1955: ‘International Law Commission

At its seventh session, held in 1955, the Interna-

tional Law Commission did not modify its 1954 text

of article 10. It commented:

“The Commission had intended to follow up

this article with a provision concerning groups of

islands. Like The Hague Conference for the Codi-

fication of International Law of 1930, the Com-

mission failed to overcome the difficulties in the

way of carrying out this intention. ... Moreover,

article 5 [on straight base lines] may be appli-

cable to groups of islands situated off the coasts,

while the general rules will normally apply to

other islands forming a group.” Report of the

International Law Commission Covering the work

of its seventh session, 2 May-8 July 1955, U.N.

Gen. Ass. Otf. Rec. 10th Sess., Supp. No. 9 (A/

2934), p. 18. [For text evolved at its eighth ses-

sion, with commentary, see ante, pp. 294-295. ]

4 Whiteman 303.

LEMANS LER HI

1955: U.S. Position on Cuban Decree No. 1948:

“Cuban Law Decree No. 1948 of January 25,

1955, stated in article I that: ‘The waters between

the coasts of the Island (of Cuba) and all adja-

cent keys, when the distance between them and

between the keys themselves does not exceed 10

miles, are declared interior seas.’ [Amembassy,

Habana, to the Department of State, despatch

No. 776, Feb. 11, 1955.] The U.K. and U.S. pro-

tested other portions of this law.... {Emphasis

added. ]

4 Whiteman 275.

PER PARA

1956: International Law Commission

The text evolved by the International Law Com-

mission with respect to islands (article 10), and con-

tained in its 1956 and final report, together with its

Commentary thereon, read:

“Article 10

“Every island has its own territorial sea. An

island is an area of land, surrounded by water,

which in normal circumstances is permanently

above high-water mark.

“Commentary

* * * *

(3) The Commission had intended to fol-

low up this article with a provision concerning

groups of islands. Like The Hague Conference

for the Codification of International Law of 1930,

the Commission was unable to overcome the dif-

ficulties involved. The problem is singularly com-

plicated by the different forms it takes in different

archipelagos. The Commission was prevented

from stating an opinion, not only by disagreement

on the breadth of the territorial sea, but also by

lack of technical information on the subject. It

recognizes the importance of this question and

hopes that if an international conference sub-

sequently studies the proposed rules it will give

attention to it.

(4) The Commission points out, for pur-

poses of information, that article 5 may be ap-

plicable to groups of islands lying off the coast.”

Report of the International Law Commission Covering

the work of its eighth session, 23 April-4 July 1956, U.N.

Gen. Ass. Off. Rec. 11th Sess., Supp. No. 9 (A/3159), pp.

16-17; Il Yearbook of the International Law Commission

1956, pp. 253, 270.

4 Whiteman 294-95.

Pay Sie i a Nh a re AL INN aS ha De iL OO aE TAT NS IB EY BEY ole Sie cee

SCENE.

1958: Geneva Convention on the Territorial Sea and

the Contiguous Zone é

Article 10 of the Convention on the Territorial

Sea and the Contiguous Zone, concluded in 1958 at the

Geneva Conference on the Law of the Sea, contains

the following provisions with reference to islands:

OE oe Seen eh el cera

“1, An island is a naturally-formed area of

land, surrounded by water, which is above water

at high-tide.

“2. The territorial sea of an island is mea-

sured in accordance with the provisions of these

articles.”

U.N. Doc. A/CONF.13/L.52; I] U.N. Conference on

the Law of the Sea, Plenary Meetings, pp. 132, 133; S.

Ex. J, 86th Cong., Ist sess., pp. 14, 16; XXXVIII Bulle-

tin, Department of State, No. 992, June 30, 1958, pp.

1111, 1112. Entered into force Sept. 10, 1964. U.S. TIAS

5639; 15 UST 1606, 1609.

4 Whiteman 295.

1958: U.S. Brief in United States v. Louisiana, et al.,

No. 11, Original

While the United States denies that the phrase,

“including all islands within three leagues of the

coast,” described any submerged land, we do agree

that Louisiana is entitled, though for a different rea-

son, to the submerged lands between its islands and

mainland. /t happens that all the islands on the coast

of Louisiana are so situated that the waters between

them and the mainland are sufficiently enclosed to

constitute inland waters; consequently the lands un-

derlying those waters necessarily passed to the State

upon its entry into the Union. Pollard v. Hagan, 3

How. 212. Thus the islands, together with the line

marking the outer limit of the intervening inland wa-

ters, constitute the “coast”? of Louisiana in the sense

of the Submerged Lands Act. We make this explana-

tion lest the dispute over the meaning of the Act of

Admission should give the impression that the sub-

merged lands within the islands are contested here.

We likewise concede the State’s right to the submerged

lands within three miles seaward of the islands, under

the ordinary three-mile rule. We deny its right to

more. [Emphasis added. ]

Brief for the United States in Support of Motion for Judg-

ment on Amended Complaint in United States v. Lou-

isiana, et al., No. 11, Original, May 15, 1958, pp. 177-78.

1958: Historic Bays Memorandum by the Secretariat

of the United Nations

The Zuyder Zee

* * * *

34. The Netherlands title to this sea can be based

not only on a historic right proper but also on ordinary

Deutsche

i T H Ss lal A Bucht Helgolander

international law. A. Chrétien,’’ who does not admit

the theory of historic bays (see infra, para. 92) con-

U.S. Exh. 97, Historic Bays, Memorandum by the Secretariat

of the United Nations, United Nations Conference on

the Law of the Sea, Official Records, Vol. 1; Preparatory

Documents (A CONF. 13 37), p. 7, and Portion of Map

of Holland from Rand- Reg vally THE International Atlas,

p. 30.

cedes nevertheless that certain small bays, among

others the Zuyder Zee, should be regarded as subject

to the full and absolute sovereignty of the coastal State.

Gidel** mentions the Zuyder Zee among the maritime

areas which are sometimes designated as historic ‘but

which should not be treated as falling within that

category [of historic waters] because pursuant to

the rules of the ordinary international law of the seas

these areas are in any case internal waters”.

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1959: “Measurement of the U.S. Territorial Sea,” by

G. Etzel Pearcy, Geographer, Department of

State, XL Bulletin, Department of State, No.

1044, June 29, 1959.

“The Convention on the Territorial Sea and the

Contiguous Zone limits the entrance of any bay to not

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La. Exh. 154, 4 Whiteman, Digest of International Law, 210,

and Portion of Chart 1113, showing delimitation of

Florida Bay recommended by Dr. G. E. Pearcy and es-

tablished by Special Master Maris in United States v.

Florida, No. 52, Original, Report of the Special Master,

p. 85.

more than 24 nautical miles. In event that the distance

between the natural entrance points of a bay exceeds

that distance, a straight baseline of 24 miles is drawn

within the bay in such a way as to enclose the maxi-

mum water area that is possible with a line of that

length. Figure 3 [infra] illustrates the principle dia-

grammatically. The rule has practical application in

Florida, where a closing line 24 miles in length extends

from East Cape to Vaca Key to close off the maxi-

mum amount of water between the coast of Florida

and the chain of keys curving south and east.

“4

1960: Letter from the Justice Department to the

U.S.C.&G.S. Regarding the United States Posi-

tion Concerning Islands Along Louisiana’s

Coast

“This [the position of the U.S. regarding inland

waters behind island fringes] is borne out by the letter

dated February 29, 1960, from Honorable J. Lee Ran-

kin, Solicitor General of the United States, to Rear

Admiral H. Arnold Karo, Director Coast and Geodetic

Survey

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