Reply Brief — Brunwasser v. United States

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\g Supreme Court, U.S. 7

! FILED

FEB 22 1978 |

IN THE MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

October Term, 1977

No. 5, Original ‘

FOR ARGUMENT.

UNITED STATES OF AMERICA,

Plaintiff,

STATE OF CALIFORNIA,

Defendant.

CALIFORNIA’S REPLY BRIEF

IN SUPPORT OF ITS PETITION

FOR ENTRY OF A THIRD

SUPPLEMENTAL DECREE

EVELLE J. YOUNGER, Attorney General

of the State of California,

N. GREGORY TAYLOR,

Assistant Attorney General,

RUSSELL IUNGERICH,

Deputy Attorney General,

800 Tishman Bui'ding, .

3580 Wilshire Boulevard,

Los Angeles, California 90010,

Telephone: (213) 736-2192,

Attorneys for Plaintiff

State of California.

Westside Law Publishers Santa Monica, California (213) 451-1714

SUBJECT INDEX

Pages

Preliminary Statement

Additional Statutes Involved

ARGUMENT

As a Matter of Law, the 1949 Proclamation Did Not

Add the Submerged Lands or Waters of the One-

Mile Belt to the Channel Islands National Monu-

ment

A. The United States Has Not Answered Calif-

ornia’s Point Regarding the Failure of the

1949 Proclamation to Revoke the 1945 Exec-

utive Order Which Had Already Reserved the

Submerged Lands of the One-Mile Belt

1. The 1945 Executive Order Reserved All

the Submerged Lands of the Continental

Shelf Seaward of the Ordinary Low Water

Mark

2. The 1949 Proclamation Is Not Suffici-

ently Clear To Support a Repeal by Impli-

cation

B. Contemporaneous Construction by the

United States Does Not Support an Inter-

pretation of the 1949 Proclamation To

Include the Submerged Lands of the One-

Mile Belt :

C. The Record Does Not Support the Federal

Contention That California Agreed With Its

Interpretation of the 1949 Proclamation in the

Period Immediately Following Its Announce-

ment

The United States Does Not Have a Right to the One-

Mile Belt by Virtue of the Claim of Right Exception to

the Submerged Lands Act 22

Ill

The United States’ Proposed Modification of Its

Decree Would Not Resolve the Three-Mile Boundary

Issue Satisfactorily, Nor Would It Recognize Calif-

ornia’s Ownership of the Tidelands 28

Conclusion 31

iil

TABLE OF AUTHORITIES

Cases Pages

Alaska Pacific Fisheries v. United States, 248 U.S. 78

(1918) 8

Cappaert v. United States, 426 U.S. 128 (1976) 8

Espinoza v. Farah Mfg. Co., Inc.,414U.S 86(1975)

' 18

Grand Trunk Western Ry. Co. v. United States, 252

U.S. 112 (1920) 18

Jewell Ridge Coal Corp. v. UMW, 325 U.S. 161

(1969) 18

New Haven Inclusion Cases, 399 U.S. 392 (1970)

Phillips Petroleum Ce. v. Wisconsin, 347 U.S. 672

(1954) i8

Sanford vy. Commissioner, 308 U.S. 39 (1939) ig

Skidmore v. Swift & Co., 323 U.S. 134 (1944) 17

United States v. California, 332 U.S. 804 (1947)

21, 23, 24

United States y. California, 382 U.S. 448 (1966)

es 28

United States vy. Celestine, 215 U.S. 278(1909) 25

Volkswagenwerk Aktiensellschaft v. FMC, 390 U.S.

261 (1968) , 17

Wilcox v. Jackson, 13 Pet. 498 (1839) 25

Zuber v. Allen, 369 U.S. 168 (1969) 17

Statutes

Antiquities Act of 1906, 34 Stat. 225, 16 U.S.C.

§ 431 3, 8, 14, 23, 25

Cal. Fish & Game Code § 4500 4,5

Cal. Fish & Game Code § 4700 4,6

Submerged Lands Act of 1953, 67 Stat. 43 U.S.C.

§ 1313 22, 23, 24, 26, 27, 28

Executive Orders

Executive Order No. 9633, 3C.F.R. 1943-48 Comp..,

437 (1945) 8.°. 10,11, 18

Congressional Materials

S. Rep. No. 133, 83d Cong. Ist Sess. 20(1953) 23

Books

W. North & C. Hubbs, eds., Utilization of Kelp-Bed

Resources in Southern California (1968) 4.§

IN THE

Supreme Court of the United States

October Term, 1977

No. 5, Original

UNITED STATES OF AMERICA,

Plaintiff,

STATE OF CALIFORNIA,

Defendant.

CALIFORNIA’S REPLY BRIEF

IN SUPPORT OF ITS PETITION

FOR ENTRY OF A THIRD

SUPPLEMENTAL DECREE

PRELIMINARY STATEMENT

The purpose of this reply brief is to point out that the

United States has not answered the great majority of

points raised by California in its opening brief. In large

measure, the United States has ignored critical points

which favor California’s position.

At the outset, it must be noted that the United States

has abandoned its claim to ownership of the tidelands

surrounding the islands and islets located within the

Channel Islands National Monument. The United States

claimed these tidelands in its initial pleading with respect

to its proposed third supplemental decree. (U.S. Motion

4.) ' Although the United States has not forthrightly

conceded California’s ownership of these tidelands, the

United States simply omits to mention tidelands at all in its

formulation of the “Questions Presented”’ in its brief.

(U.S. Br. 2.)? Since the brief for the United States does

not respond in any way to California’s discussion of the

tidelands issue (Cal. Op. Br. 38-42), the federal claim to

these tidelands must be deemed to have been abandoned.

See New Haven Inclusion Cases, 399 U.S. 392,481 n. 78

(1970). Despite the fact that there was an active

controversy respecting ownership of the tidelands when

California filed its petition in the instant proceeding, the

United States nevertheless proposes a third supplemental

decree which would not recognize in any way that

California is, in fact and in law, the owner of the tidelands

located within the Channel Islands National Monument.

Since the United States could not support its claim to the

tidelands, it apparently wants this Court to overlook the

fact that it ever claimed California’s tidelands in the

monument. To the contrary, California submits that it is

entitled to a decree recognizing that it owns the tidelands

‘The abbreviated reference “U.S. Motion” refers hereinafter to

the “Motion for Entry of a Suppiemental Decree (No. 2) [now No. 3]

and Memorandum in Support of the Motion of the United States and

in Opposition to the Motion of the State of California,” filed in

December of 1976.

. The abbreviated reference “U.S. Br.”’ refers hereinafter to the

‘Brief for the United States in Response to California’s Opening Brief

and in Support of the United States’ Motion for a Third Supplemental

Decree,” dated November 1977.

within the Channel Islands National Monument and

adjudging that the United States has no legal interest in

these lands whatsoever.

California strongly takes issue with the suggestion in the

brief for the United States that a decision in favor of

California would somehow diminish the protection of

“|. . sea otters and other marine mammals which the

United States is dedicated to preserving.”’ (U.S. Br. 5.) It

should again be noted that the Channel Islands National

Monument was created to preserve certain fossils and

geologic features, and not marine life. (See Cal. Op. Br.

21-23.) This point is clearly made in the first “Whereas”

clause of the preamble to the 1938 Proclamation creating

the monument. (Jt. App. 7.) That purpose was not altered

in the 1949 Proclamation which enlarged the monument.

(Jt. App. 67-68.) Indeed, the memorandum prepared by

Assistant Solicitor General George T. Washington states

that the proposed proclamation submitted to President

Truman was revised specifically to eliminate any purpose

regarding the protection of marine life. The memorandum

makes this point in very strong terms:

“The proposed proclamation originally stated,

in addition to the justifiable grounds for enlarging

the monument under the above Act [the Antiqui-

ties Act of 1906, 16 U.S.C. § 431], a purpose to

protect marine life. It has been the opinion of this

office that it is doubtful whether the Antiquities

Act permits the establishment or enlargement of a

national monument to protect plant and animal

life [see Department of Justice Files 90-1-04-317

and 90-1-04-367]. Hence the language relating to

this purpose has been eliminated from the procla-

mation.” (Jt. App. 63.)

Since the Channel Islands National Monument was not

enlarged for the purpose of protecting marine life, the

United States is disingenuous insofar as it suggests that the

outcome of this title dispute may have some effect on the

protection of marine life. The State of California is no less

dedicated than the United States to protecting sea otters

and other marine mammals in the one-mile belt around

Anacapa and Santa Barbara Islands. Under California

law, the northern elephant seal, the Guadalupe fur seal,

and the southern sea otter are “fully protected mammals,”

which may not be taken or possessed at any time except

pursuant to permits for necessary scientific research. Cal.

Fish & Game Code § 4700. Similarly it is unlawful in

California to take any marine mammal except in accord-

ance with the provisions of the federal Marine Mammal

Protection Act of 1972, 16 U.S.C. §§ 1361-1407. Cal.

Fish & Game Code § 4500. For purposes of this

California statute incorporating federal law by reference,

““marine mammals” include sea otters, whales, dolphins,

porpoises, seals, and sea lions. Cal. Fish & Game Code

§ 4500(c). Thus, the United States cannot successfully

maintain that a decree in favor of California would reduce

in any way the level of protection accorded to marine

mammals within the one-mile belt surrounding Anacapa

and Santa Barbara Islands.

This case does not find its genesis in the fact that “the

disputed area is rich in kelp.’ It arises because both

California and the United States claim jurisdiction over

3 There may be a veiled suggestion in the Brief for the United States

that kelp harvesting would be injurious to marine life in the one-mile

belt around Anacapa and Santa Barbara Islands. (See U.S. Br. 5.)

California denies any such suggestion. Studies by the University of

California's Institute of Marine Resources do not disclose any

detrimental effects on marine life from kelp harvesting. W. North & C.

Hubbs, eds., Utilization of Kelp-Bed Resources in Southern

the one-mile belt around Anacapa and Santa Barbara

Islands, and these conflicting claims inhibit effective

resource management in the area. The agreed record in

this case shows that it was not until 1952, three years after

the creation of the monument, that funds were budgeted for

a ranger and other minimal protection for the Channel

Islands National Monument. The monument still depends

on the California Department of Fish and Game to patrol

the waters around Anacapa and Santa Barbara Islands,

and it is for this reason that California seeks a decree that

the one-mile belt is under its jurisdiction rather than that of

the federal government.

ADDITIONAL STATUTES INVOLVED

California Fish & Game Code § 4500:

(a) It is unlawful to take any marine mammal

except in accordance with the provisions of the

Marine Mammal Protection Act of 1972

(Chapter 31 (commencing with Section 1361) of

Title 16 of the United States Code) or provisions

of Title 50 of the Code of Federal Regulations, or

pursuant to subdivision (b) of this section.

‘“*(b) At such time as federal laws or regula-

tions permit the state to assume jurisdiction over

marine mammals, the commission may adopt

regulations governing marine mammals and the

taking thereof.

California 1968. Since the parties have stipulated that there are no

factual issues requiring appointment of a special master in connection

with the petitions for entry of a fourth supplemental decree, it would be

inappropriate to pursue this extraneous issue any further. Apparently,

the United States does not seriously advance this point in view of the

fact that it presents no authority whatsoever in support of its

suggestion in the brief.

“(c) For purposes of this chapter, “marine

mammals’ means sea otters, whales, dolphins,

porpoises, seals, and sea lions.”

California Fish & Garre Code § 4700:

“Fully protected mammals or parts thereof may

not be taken or possessed at any time and no

provision of this code or any other law shall be

construed to authorize the issuance of permits or

licenses to take any fully protected mammal and

no such permits or licenses heretofore issued shall

have any force or effect for any such purpose;

except that the commission may authorize the

collecting of such species for necessary scientific

research. Legally imported fully protected

mammals or parts thereof may be possessed

under a permit issued by the department.

“The following are fully protected mammals:

(a) Morro Bay Kangaroo rat (Dipodomys heer-

manni morroensis)

(b) Bighorn sheep (Ovis canadensis)

tirostris)

(d) Guadalupe fur seal (Arctocephalus town-

sendi)

(e) Ring-tailed cat (Genus assariscus)

(f) Pacific right whale (Eubalaena sieboldi)

(g) Salt-marsh harvest mouse (Reithrodonto-

mys raviventris)

(h) Southern sea otter (Enhydra lutris nereis)

(i) Wolverine (Gulo luscus)”

ARGUMENT

AS A MATTER OF LAW, THE 1949

PROCLAMATION DID NOT ADD THE

SUBMERGED LANDS OR WATERS OF THE

ONE-MILE BELT TO THE CHANNEL ISLANDS

NATIONAL MONUMENT

The essence of California’s first argument in its opening

brief was that the 1949 proclamation enlarging the

Channel Islands National Monument did not add any

submerged lands or waters of the one-mile belt to the pre-

existing monument. The use of the ambiguous word

“areas” in the final draft of the 1949 proclamation made it

unclear whether it was the President’s intent to add just the

“certain rocks and islets’’ mentioned in the preamble to the

monument or whether he intended to add something else in

addition. California’s review of the executive history of the

1949 proclamation showed that there was no reference

whatsoever to submerged lands being added to the

monument, although there is some evidence of an intent to

add at least the surface areas of the waters in the one-mile

belt.

The crux of California’s first argument was that, as a

matter of law, the 1949 proclamation could not have

- added the submerged lands of the one-mile belt to the

monument because these lands had already been reserved

for another purpose in a 1945 executive order. The 1949

proclamation did not effect an implied repeal of the 1945

executive order, and thus the submerged lands of the one-

mile belt were not available for addition to the Channel

Islands National Monument in 1949. Insofar as the 1949

proclamation may have intended to add the “waters”’ of

the one-mile belt, separate and apart from the underlying

submerged lands, these “‘waters”’ could not lawfully have

been added to the monument by themselves. The Antiqui-

ties Act of 1906 only permits the reservation of “lands”

owned by the United States for national monument

purposes. 16 U.S.C. § 431. In some circumstances, the

reservation of land carries with it an implied reservation of

waters or water rights. See Alaska Pacific Fisheries v.

United States, 248 U.S. 78, 87 (1918); Cappaert v.

United States, 426 U.S. 128, 138-42 (1976). But neither

the Antiquities Act nor any case authority permits the

reservation of Pacific Ocean waters for national monu-

ment purposes when the submerged lands beneath them

have not been reserved as well. (Cal. Op. Br. 52-57.)

A. The United States Has Not Answered

California’s Point Regarding the Failure of

the 1949 Proclamation To Revoke the 1945

Executive Order Which Has Already Re-

served the Submerged Lands of the One-

Mile Belt.

It is important to focus on the most critical portion of

California’s argument. If the submerged lands of the one-

mile belt had already been reserved pursuant to Executive

Order 9633 in 1945, then those lands could not be added

to the Channel Islands National Monument in 1949

without a disfavored repeal by implication of the 1945

executive order. (See Cal. Op. Br. 42-48.) Lacking an

answer to this compelling argument, the United States has

responded in a footnote in its brief, perhaps with the vain

hope that the significance of California’s point will be

overlooked. (U.S. Br. 25 n. 14.)

1. The 1945 Executive Order Reserved All the Sub-

merged Lands of the Continental Shelf Seaward of

the Ordinary Low Water Mark.

The United States apparently concedes that the 1945

executive order did not reserve the submerged lands of the

Continental Shelf even though the language of the order

refers to the “natural resources of the subsoil and sea bed

of the Continental Shelf.’ (See Cal. Op. Br. 46-47.) The

United States argues, however, that the 1945 executive

order only reserved submerged lands beyond the three-

mile limit. (U.S. Br. 11-12, 25 n. 14.) In support of this

argument, the United States relies on the definition of

“high seas”’ contained in the Convention on the High Seas

concluded in 1958 and utilized in the post- 1958 materials

collected in Whiteman’s Digest of International Law.

(Id. ) The fallacy of this argument is that there is nothing to

support an inference that President Truman used the term

“high seas” in 1945 in the sense that was ultimately

accepted by the draftsmen of the 1958 Convention on the

High Seas. California’s opening brief pointed out that the

term “high seas” has been used as a term of art in

admiralty and other contexts to include all of the ocean

seaward of the ordinary low water mark. (Cal. Op. Br. 43.)

The United States makes no comment on that point in its

brief.

In the context of the 1945 executive order, California

also pointed out in its brief that the “high seas”’ referred to

in that order could not be both “contiguous to the coast of

the United States” and include only that portion of the

ocean beyond the three-mile limit. (Cal. Op. Br. 34.)

Either before or after 1945, the “coast” of the United

States has never been defined as being as far seaward as

the three-mile limit. Since the “high seas” must actually

touch the “coast” to be “‘contiguous”’ to it, California

submitted in its opening brief that the term “high seas”’ was

used in the 1945 executive order as a term of art including

that portion of the seas which lies within the three-mile

limit. (Jd. ) In response to this compelling textual evidence,

the brief for the United States is completely silent.

Moreover, contemporaneous construction of the 1945

executive order by the Department of Interior agrees with

California’s position that the submerged lands reserved in

the order included the lands within the three-mile limit as

well as those beyond it. Our opening brief cited the 1945

annual report of Secretary of the Interior Ickes in which he

refers to the whole Continental Shelf as being placed under

the jurisdiction of his department in that year. (Cal. Op.

Br. 43-44.) He does not qualify his report in any way that

would indicate that only the lands of the Continental Shelf

beyond three miles had been placed under the administra-

tive jurisdiction of his department by the 1945 executive

order. To the contrary, he refers in the cited passage to “‘a//

of the ocean floor around the United States and its

Territories that is covered by no more than 600 feet of

water.” (Cal. Op. Br. 44.) (Emphasis added.) In the same

passage, he also refers to portions of the Continental Shelf

on the Pacific Coast no wider than one mile as being part of

the new land placed under Department of Interior

jurisdiction (/d. )

In the 1952 annual report of the Secretary of the

Interior, there was further evidence that Interior treated

the submerged lands within the three-mile limit as part of

the lands on the Continental Shelf reserved by Executive

Order 9633 in 1945. In a clear reference to the fact that

Executive Order 9633 had placed the submerged lands of

the Continental Shelf under the jurisdiction and control of

the Secretary of Interior for administrative purposes

“pending the enactment of legislation in regard thereto,”

the 1952 annual report explains that the failure of

Congress to enact legislation with respect to the oil and gas

deposits on the Continental Shelf has inhibited action with

respect to the lands won by the United States in the first

California, Louisiana, and Texas cases. (Cal Op. Br.

45.) If Executive Order 9633 did not reserve those

lands as well as the lands beyond the three-mile limit

“pending the enactment of legislation in regard thereto,”’

the quotation from the 1952 annual report cited in

California’s opening brief would be bereft of intelligible

meaning.

What does the United States have to say about this

evidence of how the Department of Interior construed the

1945 executive order? The answer is, Absolutely nothing!

As it does elsewhere in its brief, it just ignores those

arguments it cannot answer. Yet the United States utilizes

the doctrine of contemporaneous construction in an effort

to support its interpretation of the 1949 proclamation

enlarging the Channel Islands National Monument. (U.S.

Br. 21-27.) This suggests that the United States may view

the doctrine as one to be applied only in favor of the United

States, but not when the doctrine supports the position

advanced by another party against the United States.

While there is no support in the decisions of this Court for

such an interpretation of the doctrine, such an implicit

assumption may explain the silence of the United States in

the face of such an unfavorable interpretation of the 1945

executive order by the department charged with its

enforcement.

2. The 1949 Proclamation Is Not Sufficiently Clear To

Support a Repeal by Implication.

While the United States does not discuss any of the

authority cited by California with respect to the cardinal

principal of statutory construction that repeals by impli-

cation are disfavored (see Cal. Op. Br. 48-51), it ends its

footnote of argument with this bald assertion:

“Second, California acknowledges (Br. 49-51)

that any reservation of the disputed lands by the

1945 order could be implicitly revoked pro tanto

by the 1949 proclamation. Assuming arguendo

that it is necessary to reach this issue, we think the

terms of the 1949 proclamation are certainly clear

enough to constitute such revocation.” (U.S. Br.

25-26 n. 14.)

In response to this assertion, California submits that it is

by no means clear that the 1949 proclamation intended to

add, or did in faci add, the submerged lands of the one-mile

belt to the Channel Islands National Monument. The

United States focuses on one of the numerous meanings

of the word “area” cited in California’s opening brief as

“authoritatively” proving that the word may include

submerged lands. (U.S. Br. 8.) This approach, of course,

begs the question of whether the word “‘areas”’ in the 1949

proclamation was used in that special sense. The word

“area” most usually refers to a surface rather than all the

contents of a three-dimensional unit of space. (Cal. Op.

Br. 14-17.)

The United States also asserts without support from the

record that “areas” was “ . . . the most commodious word

that could have been used in this context to denote that

everything within the boundaries, not merely ‘certain

rocks and islets,, was added to the monument.”’ While

‘areas’ could have been used to denote everything in the

one-mile belt, neither the language of the proclamation nor

its executive history will support the proposition that the

word “‘areas”’ was used in that way.

The penultimate paragraph of Secretary Krug’s draft of

his letter transmitting the proposed proclamation to

President Truman states that the purpose of the proclama-

tion was to place under the control of the National Park

Service “the islets, rocks, and waters within a distance of

one nautical mile from Santa Barbara and Anacapa

Islands.”’ (Jt. App. 46, lines 19-23.) The final draft of the

letter sent to the White House substituted the phrase “the

area within one nautical mile from the shoreline of

Anacapa and Santa Barbara Islands” for the earlier

reference to “islets, rocks, and waters.” (Jt. App. 51, lines

20-22.) Thereafter the word “‘area” or “‘areas”’ was used

in all the succeeding drafts of the 1949 proclamation. (Jt.

App. 53-55, 67-68.) The reason for the substitution of

terminology is wholly unexplained and left to inference.

While the United States chooses to infer that “areas”’ was

selected as the most “commodious’”’ word to refer to

everything in the one-mile belt, the stronger inference is

that the word was used simply as a replacement for “‘islets,

rocks, and waters”’ to the exclusion of the submerged lands

beneath the waters.

This inference is reinforced by the fact that the docu-

ments comprising the executive history of the 1949

proclamation do not even once mention submerged lands

as part of the proposed enlargement of the Channel Islands

National Monument. (See Cal. Op. Br. 36-37.) The brief

for the United States does not contain a single citation to

the record where submerged lands were mentioned as part

of the proposed enlargement. Even after the 1947 para-

mount rights decision, the only references in the executive

history are to the islets, rocks and waters as distinct from

the submerged lands lying beneath the waters. (Jt. App.

42, 46, 48, 49.) If, as ‘he United States argues (U.S. Br.

25-26 n. 14), the 1949 prociamation so clearly added the

submerged lands within the one-mile belt that 1945

executive order was partially revoked by implication, then

one would expect at least one mention of the submerged

lands somewhere in the executive history of the

proclamation.

The absence of any reference of submerged lands in the

documents comprising the executive history of the 1949

proclamation raises a compelling inference that the execu-

tive intent was to add a belt of waters without the

underlying submerged lands to the Channel Islands

National Monument. Such an attempt would be imper-

missible under the Antiquities Act of 1906 (see Cal. Op.

Br. 52-57), a point apparently conceded by the United

States. (U.S. Br. 9 n. 3.) Yet it appears that this is precisely

what the Executive Branch intended when it enlarged the

monument in 1949. The United States totally miscon-

strues California’s argument when it states on page 9 of its

brief that “ . . . California does not contend that the 1949

proclamation added merely surface waters to the

Monument.” Our opening brief states precisely the

opposite in the second paragraph of page 52. Our point is

that Congress has not authorized the reservation of waters

alone as part of a national monument. The term “areas”

must be narrowly construed to include only the islets and

rocks within the one-mile belt if this Court is to avoid a

construction of the 1949 proclamation which would

invalidate it in its entirety. (See Cal. Op. Br. 52-57; see

also 37-38.)

There can be little doubt that the National Park Service

contemplated the enlargement of the monument with only

the surface areas of the surrounding one-mile belt of ocean

waters. The brief for the United States highlights this point

very nicely. On page 15 of its brief, the United States

quotes the head of the National Park Service’s Section on

National Park Wildlife as suggesting an extension of the

monument’s boundaries “‘to include the surface of the

adjacent ocean” be considered. (Jt. App. 13.) (Emphasis

added.) Therefore, the fact that the diagram attached to

the 1949 proclamation contains acreage figures equal to

the total surface area of the islands and surrounding waters

is not “persuasive evidence”’ that the submerged lands

beneath that part of that surface area were added to the

monument in 1949. (Cf U.S. Br. 9-10.)

The upshot of this argument is that, at the very least,

there is an ambiguity as to whether submerged lands were

part of the 1949 enlargement of the Channel Islands

National Monument. !n view of this ambiguity, it cannot

be said that submerged lands were so clearly included in

the 1949 proclamation as to effect a revocation of the

1949 executive order by implication. (Cal. Op. Br. 48-

51.) Also under settled law, the ambiguity must be

resolved against the United States since careful drafts-

manship by its agents would have avoided this whole

controversy. (See Cal. Op. Br. 37-38.) Since the sub-

merged lands of the one-mile belt were not added to the

monument in 1949 because of the failure to revoke

Executive Order 9633, it necessarily follows that the

waters of the one-mile belt could not have been added

alone without violating the Antiquities Act. (Cal. Op. Br.

52-57.) The net result is that, as a matter of law, the 1949

proclamation is susceptible of only one possible remaining

interpretation, that is, an enlargement which included the

islets and rocks above high water and nothing else.

B. Contemporaneous Construction by the

United States Does Not Support an Inter-

pretation of the 1949 Proclamation To

Include the Submerged Lands of the One-

Mile Belt.

The force of the preceding argument is not undercut by

any contemporaneous interpretation of the 1949 procla-

mation by either the United States or California. The

United States cites the Court to a single memorandum by

counsel for the National Park Service, written in 1949 and

Stating his opinion that “submerged areas” were “recently

added to the Channel Islands National Monument.” (U.S.

Br. 21-22; Jt. App. 70.) Every other contemporaneous

federal document cited in the brief for the United States

adverts to the “waters” of the one-mile belt as part of the

1949 enlargement but pointedly omits any reference to

submerged land as part of that same enlargement. (U.S.

Br. 22, lines 16-18; 23, line 21; 26, line 10.) The United

States also cites undated Park Service regulations which

prohibit “digging in the bottom” and tampering with

wrecks. (U.S. Br. 26.)

With only two post-enlargement documents which

construe the 1949 proclamation to add submerged lands

and three others which mention waters only, the United

States is a bit disingenuous when it then concludes that

The federal government, acting through the Department

of Interior, has not deviated from its position that since

1949 the Channel islands National Monument includes

all submerged lands and water areas within one mile of

Santa Barbara and Anacapa Islands.”’ (U.S. Br. 25;

footnote omitted. )

A January 14, 1958 opinion rendered by the Field

Solicitor of the Department of the Interior in San Francisco

certainly deviated from this position when it stated that

* ... The Park Service no longer has authority to enforce

its regulations in the water area within one nautical mile of

the shore line of Anacapa and Santa Barbara Islands.”’ (Jt.

App. 88-89.) Moreover, the 1949 opinion of National

Park Service Chief Counsel Jackson Price does not

indicate that he had the benefit of the executive history

compiled by the parties and now before this Court. (See Jt.

App. 69-70.) The Price opinion also did not take Executive

Order 9633 into account.

In any event, the sparse evidence of a ““contempora-

neous construction’”’ is not controlling as to interpretation

of the 1949 proclamation. This Court has never required

deference to administrative constructions in all cases. On

the contrary, it has consistently held that the courts, not

administrative agencies or departments, have the ultimate

responsibility for interpretation of legislation (or, in this

case, executive proclamations). In Volkswagenwerk

Aktiensellschaft v. FMC, 390 U.S. 261, 272 (1968), the

Court stated:

“The construction put on a statute by the agency

charged with administering it is entitled to def-

erence by the courts, and ordinarily that con-

struction will be affirmed if it has a ‘reasonable

basis in law.’ But the courts are the final authorities

on issues of statutory construction and are not

obliged to stand aside and rubber-stamp their

affirmance of administrative decisions that they

deem inconsistent with a statutory mandate or

that frustrate the congressional policy underlying

a statute. The deference owed to an expert

tribunal cannot be allowed to slip into judicial

inertia.” (Citations omitted.) Accord, Zuber v.

Allen, 369 U.S. 168, 192-93 (1969).

In Skidmore v. Swift & Co. , 323 U.S. 134 (1944), the

Supreme Court enunciated a standard for evaluating

contemporaneous administrative constructions by which

courts could weigh such constructions against other inter-

pretational aids. The Court there reasoned:

‘We consider that the rulings, interpretations and

opinions of the Administrator under this Act,

while not controlling upon the courts by reason of

their authority, do constitute a body of experience

and informed judgment to which courts and

litigants may properly resort for guidance. The

weight of such a judgment in a particular case

will depend upon the thoroughness evident in its

consideration, the validity of its reasoning, its

consistency with earlier and later pronounce-

ments, and all those factors which give it power to

persuade, if lacking power to control.” (Id. at

140; emphasis added.)

Since an administrative construction is only valuable as

an interpretation of a statute, it is axiomatic that an

interpretation contrary to what the statute is held to mean

as a matter of law cannot pass the “validity of reasoning”

test. The Supreme Court has held that a contemporaneous

construction without an adequate basis in law has no

weight. See, e.g., Phillips Petroleum Co. v. Wisconsin,

347 U.S. 672, 677-78 (1954); Sanford v. Commissioner,

308 U.S. 39, 52 (1939). A court cannot adopt an

erroneous construction of a statute simply because the

administrative agency ordinarily entitled to interpret the

statute has interpreted that statute erroneously for a

certain period of time. As the Supreme Court recognized

in Espinoza v. Farah Mfg. Co., Inc.,414 U.S. 86 (1975),

“Courts need not defer to an administrative construction

of a statute where there are ‘compelling indications that it

is wrong.” Jd. at 95 (citations omitted). Accord, Jewell

Ridge Coal Corp. v. UMW, 325 U.S. 161, 169(1969). In

a like manner, if the administrative construction is based

on a long-continued oversight in construing the law, it is

entitled to no weight. For example, in Grand Trunk

Western Ry. Co. v. United States, 252 U.S. 112 (1920),

the Supreme Court found that the Post Office’s practice of

paying the railroad the full rate for services did not

overcome the statute’s true intent that only 80% of the fees

should be paid. The Court reasoned:

‘But here the practice long continued of paying

the full rate instead of eighty percent thereof was

not due to any construction of a statute which the

department later sought to abandon, but to what is

alleged to be a mistake of fact due perhaps to an

oversight. To such a case the rule of long-

continued construction has no application.”’ Jd. at

121.

Application of these rules to the instant case requires

only a comparison of the reasoning behind California’s

interpretation of the 1949 proclamation with the interpre-

tation proffered by the United States as “‘contempora-

neous construction.” California feels certain that its

interpretation will withstand scrutiny under the “validity

of reasoning” standard while the federal construction will

not.

C. The Record Does Not Support the Federal

Contention That California Agreed With

Its Interpretation of the 1949 Proclamation

in the Period Immediately Following Its

Announcement.

The United States cites two documents as evidence that

California recognized federal jurisdiction over the one-

mile belt around Anacapa and Santa Barbara Islands in

the months immediately following the issuance of the

1949 proclamation. (U.S. Br. 22-25.) A fair reading of the

two documents should demonstrate that they are not

evidence of that kind at all.

The first document in its entirety was as follows:

‘

State of California

Department of Natural Resources

DIVISION OF FISH AND GAME

Ferry Building

San Francisco 11, California

July 15, 1949.

TO WHOM IT MAY CONCERN:

The National Park Service has just called to our

attention the fact that Santa Barbara and Ana-

capa Islands, and the waters surrounding said

islands to a distance of one nautical mile, com-

prise the Channel Islands National Monument.

The National Park Service also advises us that

they will not permit any use of explosives for any

purpose within the boundaries of this National

Monument.

In the exercise of any permit previously issued

by the California Fish and Game Commission to

use explosives for seismic operations, or in the

exercise of any permit which may be granted in

the future, you will please be governed by this

notice.

FISH AND GAME COMMISSION

BY ¢

E.L. MACAULAY

Executive Officer

While this notice states the position of the National

Park Service for the information of California seismic

operation permittees, nothing in the document purports to

endorse the federal position. A reasonable interpretation

of the notice is that Mr. Macaulay was simply passing

along information received from the National Park

Service to California permittees so that they will not run

the risk of trouble with federal authorities in the vicinity of

the Channel Islands National Monument.

The second document is a letter requesting information

about the National Park Service’s postition with respect to

commercial fishing and kelp harvesting in the waters

around Anacapa Island. (U.S. Br. 24; Jt. App. 76.) This

letter is scarcely an expression of California acquiescence

to federal jurisdiction over the Anacapa Island kelp beds.

It asks a question, but it expresses no position whatsoever

on behalf of the State of California.

It would not have been surprising if some California

official had recognized federal jurisdiction over the one-

mile belt between 1949 and 1953. After all, it was during

that period that the federal government had “paramount

rights” and “full dominion” over the entire three-mile

territorial sea. Recognition of federal jurisdiction over

the submerged lands around Anacapa and Santa Barbara

Islands would indicate respect for this Court’s first

decision in United States v. California rather than

agreement with any federal interpretation of the 1949 pro-

clamation. However, neither document cited by the

United States mentioned submerged lands, and neither

document is susceptible of the overreading given it in the

brief for the United States.

THE UNITED STATES DOES NOT HAVE A

RIGHT TO THE ONE-MILE BELT BY VIRTUE

OF THE CLAIM OF RIGHT EXCEPTION TO

THE SUBMERGED LANDS ACT

In its opening brief, California demonstrated that

Congress intended to relinquish to California a// federal

jurisdiction and ownership rights within the three-mile

territorial sea when it passed the Submerged Lands Act in

1953, subject only to the reservations and exceptions set

forth in the Act. (Cal. Op. Br. 58-61, 82-84.) Nowhere in

its brief does the United States dispute that such was the

intent of Congress. Thus, the one-mile belt around the two

principal islands of the Channel Islands National

Monument was returned to California by virtue of the

Submerged Lands Act unless the federal government can

show that this one-mile belt was somehow excepted from

the operation of the Act.

In an attempt to that end, the United States grounds its

claim to jurisdiction over the one-mile belt around

Anacapa and Santa Barbara Islands squarely on the claim

of right exception set forth in Section 5 of the Submerged

Lands Act, 67 Stat. 32,43 U.S.C. § 1313.(U.S. Br. 28.)

In its opening brief, California cited authority for the

proposition that the United States has the burden of

proving that its claim falls within the Section 5 exception

to the Submerged Lands Act. (Cal. Op. Br. 60-61.) The

United States apparently agrees that it must shoulder the

burden of proof since its brief nowhere challenges this

proposition or the authority cited by California.

The United States makes a further telling concession

when it states in its brief:

“We further agree that the claim of right

exception does not preserve to the United States

any claim resting solely on the doctrine of para-

mount right [sic] announced by this Court in

California I (Cal. Br. 76).” (U.S. Br. 29.)

The Senate Report on the bill which ultimately became

the Submerged Lands Act virtually compels this con-

cession. The report makes it clear that the claims of right

excepted by Section 5 do not include “any claim resting

solely upon the doctrine of ‘paramount rights’ enunciated

by the Supreme Court with respect to the Federal Govern-

ment’s status in the areas beyond inland waters and mean

low tide.”” S. Rep. No. 133, 83d Cong., Ist Sess. 20

(1953).

California submits that this concession by the United

States is fatal because its claim to the one-mile belt is a

“claim resting solely upon the doctrine of ‘paramount

rights’ enunciated by the Supreme Court with respect to

the Federal Government’s status in the areas beyond

inland waters and mean low tide.”’ But for the paramount

rights doctrine announced in the 1947 United States v.

California decision, the United States had no claim to

ownership or control of the submerged lands of the one-

mile belt, the natural resources beneath them, or the

waters above them. Section 2 of the Antiquities Act of

1906 clearly specifies that only “lands owned or con-

trolled by the Government of the United States’ may be

reserved for national monument purposes. 34 Stat. 225,

16 U.S.C. § 431. In 1949, the United States could be said

to “‘own or control” the submerged lands of the one-mile

belt around the two principal islands of the Channel

Islands National Monument only because this Court had

announced in 1947 that the United States was possessed

of ‘paramount rights in, and full dominion and power over.

the lands, minerals and other things” underlying the

Pacific Ocean seaward of the ordinary low-water mark on

the coast of California to a distance of three nautical miles.

United States v. California, 332 U.S. 804, 805 (1947).

The Chief Counsel for the National Park Service express-

ly acknowledged in a May 31, 1949 memorandum that

national monument jurisdiction over the belt was based

upon the paramount rights doctrine enunciated in the first

United States v. California decision. (Jt. App. 69-70, esp.

70, lines 9-11.) There could not be a clearer admission

that the purported federal claim of right to the one-mile

belt around Anacapa and Santa Barbara Islands is unmis-

takably a “claim resting solely on the doctrine of

‘paramount rights’.”’ In light of the Senate Report and the

concession by the United States, it follows as a matter of

law that the purported federal claim is not within the class

of claims excepted from the operation of the Submerged

Lands Act by the claim of right language in Section 5.

The United States argues that its claim to the one-mile

belt is not a claim resting solely on the paramount rights

doctrine. (U.S. Br. 29.) The gist of the argument is that the

1949 reservation of the one-mile belt as part of the

Channel Islands National Monument is ipso facto a

‘claim of right” because it is “*a statement by the President

of the United States officially proclaiming that the areas

are reserved ‘under and by virtue of the authority vested in’

him by a public law passed for just such a purpose by the

Congress (Jt. App. 67).” (U.S. Br. 29.) This contention is

utterly without substance.

The defect of this contention may be demonstrated by

examining the nature of the federal claim to the submerged

lands and waters of the one-mile belt before and after the

1949 Presidential Proclamation enlarging the Channel

Islands National Monument. After the first United States

v. California decision and prior to the 1949 proclamation,

there can be no question that the federal claim of right to

the one-mile belt surrounding Anacapa and Santa Barbara

Islands was a claim resting solely on the paramount rights

doctrine enunciated in the 1947 decision. After the

enlargement of the monument on February 9, 1949,

nothing happened to alter the basis of the federal claim

unless the proclamation somehow transmuted the claim

resting solely on the paramount rights doctrine into a claim

of a different type. The reservation did not have any such

magical effect.

A reservation for national monument purposes is not a

claim of right in and of itself. At most, it is an expression of

a belief on the part of the President that the federal

government owns or controls the lands being reserved for

national monument purposes. The claim of right is the

basis upon which the United States claims a right of

ownership or to possession of the lands being reserved.

The reservation operates only to change the category

under which the Department of Interior holds the lands for

administrative purposes. For example, if a national

monument is created out of public domain lands, the lands

reserved for national monument purposes are no longer

subject to entry and sale and are set apart for the special

purposes delineated in the Antiquities Aci of 1906, 16

U.S.C. § 431. In Wilcox v. Jackson, 13 Pet. 498, 513

(1839), it was stated in regard to a military reservation that

. whensoever a tract of land shall have been once

legally appropriated to any purpose, from that moment,

the land thus appropriated becomes severed from the mass

of public lands... ."" United States v. Celestine, 215 U.S.

278, 285 (1909), contains the following definition of a

“reservation”:

*. . . The word is used in the land law to

describe any body of land, large or small, which

Congress has reserved for any purpose. It may be

a military reservation, or an Indian reservation,

or, indeed, one for any purpose for which

Congress has authority to provide, and when

Congress has once established a reservation all

tracts ‘included within it remain a part of the

reservation until separated therefrom by

Congress.”

While the President as well as Congress may now create

a reservation under appropriate circumstances, the

principle remains unchanged. The effect of a reservation is

to shift the land from one administrative category to

another. If the federal government does not own the lands

placed in a reservation, the reservation does not improve

the quality of federal title. The United States’ claim of

right remains the same as before the reservation.

The United States contends that a “claim of right”

under Section 5 of the Submerged Lands Act does not

have to be a claim of title or even a claim of a right to

possession. (U.S. Br. 29-32.) It asserts that there is no

support for California’s position that a claim of right must

‘be.a claim of ownership or to possession. (Id. at 29-30.)

Yet immediately after making this incorrect assertion, the

United States quotes a portion of the legislative history of

the Submerged Lands Act in which Senator Cordon

explains to Senator Kuchel that a claim of right“...

means that the United States is in actual occupancy and

claims that it has a right to occupancy.”’ (U.S. Br. 30.)

(Emphasis added.) A claim of a right to occupancy means

nothing unless it means a claim of ownership (title) or to

possession. Indeed, on page 31 of its brief, the United

States quotes Senator Cordon again stating as follows:

“The bill is a conveyance. Unless we except from

the conveyance a tract of ground, the title of which

is in dispute, and unless we except that we end the

dispute, but we end it adversely to the United

States.”’ (Emphasis added by the United States.)

This language clearly demonstrates that a Section 5

claim of right must be a claim of title and not merely a

reservation of federal lands standing apart from the

underlying federal claim to ownership or control. But it

also proves much more. The above quotation indicates

that the claim of right exception was intended to preserve

federal claims to tracts of land where title was in dispute

as of the date of passage of the Submerged Lands Act.

Title to the submerged lands underlying the one-mile belt

around Anacapa and Santa Barbara Islands was not in

dispute as of the date of the enactment of the Submerged

Lands Act. Federal jurisdiction over these lands rested

solely upon the paramount rights doctrine. As discussed

above, Congress clearly manifested its intention that any

claim resting solely on the paramount rights doctrine not

be excepted from the operation of the Submerged Lands

Act.

Finally, it should be observed that the United States did

not respond at all in its brief to California’s argument that

the Submerged Lands Act revoked the 1949 proclamation

reserving the one-mile belt for national monument

purposes. (Cal. Op. Br. 82-84.) The failure to answer this

argument should be treated as a concession of this point by

the United States.

THE UNITED STATES’

PROPOSED MODIFICATION OF ITS DECREE

WOULD NOT RESOLVE THE THREE-MILE

BOUNDARY ISSUE SATISFACTORILY,

NOR WOULD IT RECOGNIZE

CALIFORNIA’S OWNERSHIP

OF THE TIDELANDS

In the third section of its opening brief, California

pointed out that the decree proposed by the United States

measured the three-mile boundary between federal and

state submerged lands only from the coastlines of

Anacapa and Santa Barbara Islands without taking into

account other islands (rocks above mean high water) and

low-tide elevations which should also be counted as

basepoints for measurement of the boundary. (Cal. Op.

Br. 85-87.) In footnote 17 of its brief, the United States

admits that the low-tide elevations and other islands

should be taken into account and that it overlooked them in

its proposed decree. (U.S. Br. 32-33.),Despite that

admission, however, the United States proposes that the

Third Supplemental Decree omit specific reference to

these other islands and low-tide elevations and merely

state in general terms that the outer boundary of Califor-

nia’s submerged lands is “three nautical miles from the

coastline of California.” (Jd. )

The purpose of this exercise of continuing jurisdiction

reserved in paragraph 1 3 of the 1966 supplemental decree,

United States v. California, 382 U.S. 448, 453 (1966), is

to give specific content to the general phraseology of the

Submerged Lands Act and the first supplemental decree in

areas where the parties have been unable to agree as to

any portion of the boundary line. The phrase “three

nautical miles from the coastline of California” proposed

by the United States does not resolve the particular

problem posed here. Up until its latest brief, the United

States did not count the other islands and the low-tide

elevations in the vicinity of Anacapa and Santa Barbara

Islands for purposes of locating the three-mile boundary.

California believes that the other islands and low-tide

elevations should be specifically mentioned in the decree

with nothing left to inference. Otherwise the decree leaves

California in the same position that it was in prior to

seeking this decree — with general language that has to be

further defined in order to establish that the other islands

and low-tide elevations are to be taken into account.

California believes that the United States’ objection to

language referring to the territorial sea is well taken

because the breadth of the territorial sea may change.

Therefore California requests that the following language

be substituted as paragraph | of its proposed supplemental

decree:

“1. As against the United States, the State of

California has title to and is the owner of all

tidelands (defined as the shore of all islands

between the line of mean high water and the line of

mean lower low water and the portions of all low-

tide elevations above the line of mean lower low

water) surrounding the islands within the Channel

Islands National Monument, established by

Presidential Proclamation No. 2281, 52 Stat.

1541 (April 26, 1938) and extended by Presiden-

tial Proclamation No. 2825, 63 Stat. 1258

(February 9, 1949), and all tidelands situated on

low-tide elevations within three nautical miles of

the line of mean lower low water on any of the

foregoing islands. As against the United States,

the State of California also has title to and is the

owner of all submerged lands and natural

resources (as the latter term of defined in sub-

section (e) of 43 U.S.C. § 1301) between the line

of mean lower low water on all islands within the

Channel Islands National Momument and on all

low-tide elevations located within three geograph-

ical miles of any of those islands, and a second line

located three geographical miles seaward of the

foregoing line of mean lower low water.

“With respect to the foregoing land and natural

resources, California’s rights include the right and

power to manage, administer, lease, develop and

use these lands and natural resources all in

accordance with applicable State law.”

It should again be noted that the decree proposed by the

United States does not recognize California’s ownership

of the tidelands in the vicinity of the Channel Islands

National Monument except by indirection. Any decree

issued by this Court should affirmatively adjudge

California to have title to and to be the owner of these

tidelands as against the United States. .

Lastly, these particular criticisms of the United States’

proposed decree should not obscure California’s basic

objection that the United States’ decree fails to recognize

California’s rights to the submerged lands and natural

resources within the one-mile belt around Anacapa and

Santa Barbara Islands.

CONCLUSION

Based on the foregoing argument, California urges this

Court to enter a third supplemental decree in the form

proposed in its petition with the slight modifications set

forth in Section III of this brief.

Respectfully submitted,