# Appendix — UNITED STATES v. LOUISIANA (No. 0026-74) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1630%3A107 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1955 ## Text No. », Original the | neon Supreme Court of the Bnited States Ocrosi® TERM, 1974 UNITED STATES OF AMERICA, Plaintiff, v. 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 oe FR AAP A OBIS ERT TRA TNE 9 ee HE i 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 A 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 ii 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» 2 ee 301-304 _. 2. SSeeesce 220-231, 234-236 Garden Island Bay ............................ 269-271 I i 269-271 Art. 7(3) qualification I 305-308 Art. 7(5) qualification = ; I oe ie ee 276-283 PTE, TR on ose ccne ees 308-312 Art. 7(6) qualification _........... 29-35, 37-39, 46 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 D 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 E East Bay acquiescence to Louisiana’s claims see Acquiescence vi 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 F Page Florida Keys compared to Isle Derniere ............ 55-57, 297-300 compared to Shell Keys .......000222000000000.... 210-220 G Garden Island Bay historic claims see Mississippi Delta Bays mudlump assimilation problems ............ 264-269 qualification as a juridical bay -.............. 269-271 H Headlands MAMI TONNE icsiccscssistantcebalebticorheand onus auoacane 276-283 DI TI Fis scoveitincccos rcaedstnerneatld 285-286, 304-305 I Sens aniecennel 220-221, 225-234 I 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 J 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 ix 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... 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. La. La. La. La. La. La. La. La. La. La. » La. La. La. La. La. La. 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.” 2 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 3 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 6 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 7 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 8 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 9 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. 10 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 11 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 12 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 \ 15 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 14 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. 15 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 16 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 1% 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 18 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. 19 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- 20 “ 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 21 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. 99 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 23 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 24 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 25 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. 26 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 27 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 28 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 29 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 f 30 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. 31 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 32 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. 34 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 35 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. 37 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 * : i: 4 % * a ee i = & a = a 38 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 39 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. 40 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 41 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. 42 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 45 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 +4 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- 45 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 ee re RE et a HEA piste ae i fo a >See atl “ sS ° iL ” 5 Gea 4) 10 vine ; me eg wingeieg 5 ee res y aby wivev? wo bh \ a n o - . = aren j9 hr 4 r at Sr Spm 2 One pep : eat "5, ip voroehouc J: erg % . W872 | ty , “ Fs equa), > CS —— ; : “td e ee ees + xe. ' D S e2 Sati be map’ bing oa eee MPR ae iti sone Gov att? F : toon bs — n b ax pettaenay woomeye te " ae ¥ voli. 50 ‘ow A revig A x 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). 66 Map of Buzzard’s Bay UNITED STATES 7 | Cape Cod Bay ATLANTIC OCEAN 500, pt 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 67 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 | Ti 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. % 69 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 70 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 71 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 72 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] 74 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 oy Prats 75 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 76 "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 as 77 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 78 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. 79 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 | 80 eries Case, what technical questions may arise as to “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’. a 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- oa 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. 82 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 ala PF . SENSU LIES CESS GRRE IIL LINE LAID LAREIA X. ye Or he be ay ed kN SEB AMO Lata OLS SAYS 3 ny MNO RTA 8 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. 84 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 85 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 86 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. 87 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. 88 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. 89 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. 90 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”. ge wits ee Oe ay PING ARS SEO Tg B IF yo PTS ID HA Bh Ot As DONS ROLES VEST LRT ET OT Bren overseen per senoep ss Cag PE wee EPO OS FOOTE MENG FY artes se 7 = 91 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 e.) #1 s | . : 4 . e ' a s Pp e Cs 5 | \sanay Key “SS ease 8 ay e q hark aA /y +21" : ~ ’ 2 te ae: . . +22 Avy rit | 2 H . He e 7294 | H th iL ° Hi uy Le | 6 i] al! bt 50" at 2 MIR 0 . gig OF! S 3g ee (We 1% - S| z 2 z = y roi? “aS et a } rod Mol . or - H asses es Pp — ce Peter sy 6S 80 ¢ 05 Sai, je 0 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. 92 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 93 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, Department of Commerce, Washington 25, D.C., with a copy to Raymond T. Yingling, Assistant Legal Adviser, Department of State, and to Dr. G. Etzel Pearcy, Geographer, Department of State, in which Mr. Rankin stated: “On July 6, 1950, in response to a specific in- quiry 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 of the Department of the Interior and this Depart- ment in describing, on that basis, a line, (com- monly referred to as the “Chapman Line’) to represent 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 Louisiana Brief before the Special Master, Vol. I, Part 1, pp. 59-60, quoting from La. Exh. 283(20). 94 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 submitted to the State Department in August 1958. At that time, Mr. Yingling, Assistant Legal Adviser, did raise a question regarding Chande- leur 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 wa- ter. Because of this concession, it was unneces- sary for Louisiana to press certain aspects of its argument as it might otherwise have wished to do.” [Emphasis added. ] 95 1960: United States v. Louisiana, et al., Supreme Court Decision The Government concedes that all the islands which are within three leagues of Louisiana’s shore and therefore belong to it under the terms of its Act of Admission, happen to be so situated that the waters between them and the mainland are sufficiently en- closed to constitute inland waters, Thus, Louisiana is entitled to the lands beneath those waters quite apart from the affirmative grant of the Submerged Lands Act, under the rule of Pollard’s Lessee v. Hagan. 3 How. 212. Furthermore, since the islands enclose in- land waters, a line drawn around those islands and the intervening waters would constitute the “coast” of Louisiana within the definition of the Submerged Lands Act. Since that Act confirms to all States rights in submerged lands three miles from their coast, the Government concedes that Louisiana would be entitled not only to the inland waters enclosed by the islands, but to an additional three miles beyond those islands as well. We do not intend, however, in pasing on these motions, to settle the location of the coastline of Lou- isiana or that of any other State. [Emphasis added. ] United States v. Louisiana, et al., 363 U.S. 1, 67 n. 108 (1960). tet FM ATR a Page A A RRA PL DEE MEE, OND a sceneeemieneemets — . . . . . — 96 1961: Letter from the Solicitor General to the Direc- tor, U.S.C.&G:.S. March 6, 1961 Rear Admiral H. Arnold Karo Director Coast and Geodetic Survey Department of Commerce Washington, D. C. Dear Admiral Karo: In the case of United States v. Louisiana et al., No. 10, Original, involving ownership of offshore sub- merged lands in the Gulf of Mexico, the Supreme Court’s opinions of May 31, 1960 (363 U.S. 1 and 121), and decree of December 12, 1960, establish the dividing line between the federal and state property rights at a distance of three geographical miles from the coast lines of Louisiana, Mississippi, and Alabama and three leagues from the coast lines of Texas and Florida. The coast line is defined, as in the Submerged Lands Act, as the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters. We are now faced with the problem of giving precise application to the rather general terms of that decision. ... Oke Soe ns its | 126 1974: United States v. Florida, No. 52, Original, Re- port of Albert B. Maris, Special Master I do not think that this conclusion need be reached with respect to the most easterly portion of this area, however, namely, the area between the mainland on the northwest and the upper Florida Keys on the southeast which lies east of a closing line running southwesterly from East Cape of Cape Sable to Knight Key in the Florida Keys, a distance of approximately 24 geographical miles. This area comprises for the most part very shallow water which is not readily navigable and nearly all of which is dotted with small islands and low-tide elevations. I find that this area is sufficiently enclosed by the mainland and the upper Florida Keys, which constitute realistically an exten- sion of the mainland, to be regarded as a bay which constitutes inland waters of the State within the test applied in United States v. Louisiana, 1960, 363 U.S. 1, 66-67, fn. 108, and United States v. Louisiana, 1969, 394 U.S. 11, 60-66, and discussed in United States v. California, 1965, 381 U.S. 139, 171. Moreover, the character of this area as inland waters of the State of Florida appears to be conceded by the United States. It is this area which I designate in this report as Florida Bay. But the claim of the State to the waters of the Gulf of Mexico to the west of this area as a juridical bay must, in my opinion, be rejected. Report of Albert B. Maris, Special Master, in United States v. Florida, No. 52, Original, pp. 38-39. (See Figure at p. 19, supra, of this appendix.) 127 APPENDIX B SYLLABUS OF FINDINGS Pages Louisiana’s Historic Claims Bast. Bay, Findings 2-7 5.5. ...cccc.s0cccccsctsscceensss 129-172 Other Mississippi Delta Bays, Findings 8-13 .172-184 Caillou Bay, Findings 14-19 000000000002... 184-210 See aR, Fae BP ee i. 210-220 Juridical/Geomorphic (Article 7) Claims South Pass to Southwest Pass: East Bay, BNO MII et a 220-254 From Dead Woman Pass to North Pass (uenes tend Bay) isc. 254-260 From Pass A Loutre to Southeast Pass, Including Blind Bay = SEN TR ee ee eee 260-264 From Southeast Pass to South Pass, Including Garden island and eee tcl 3. ky SSD RONEN Oe TREE 264-271 AR «cE Te AONE Soh SS a al os gn Oe Sala eee a 271-276 Southwest Pass to Belle Pass: NE No are ei 276-283 West Bay to Pass Tante Phine sinetclooistetaateains 283-285 SRE [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1630%3A107. Public record. Not legal advice.