Reply Brief — United States v. California

FOR ARGUMENL

Supreme Court, U.S.

FILE p

FEB 14 1980

ICHAEL RODAK, JR., CLERK

In the Supreme Court™

OF THE

United States

Octoser TERM, 1979

No. 5, Original

Unirep States or AMERICA,

Plaintiff,

VS.

State oF CaLiFoRNIA,

Defendant.

On the Report of the Special Master

REPLY BRIEF OF THE STATE OF CALIFORNIA

Grorce DEUKMEJIAN

Attorney General of the

State of California

N. Grecory Taylor

Assistant Attorney General

JouNn Briscor

Nancy A. SaGGEsE

Deputy Attorneys General

6000 State Building

San Francisco, California 94102

Telephone: (415) 557-2210

Attorneys for Defendant

BOWNE-PERNAU WALSH ¢ 1045 SANSOME ST. ¢ S.F., CA 94111 ¢ (415) 981-7882

SUBJECT INDEX

biiveietiien |... i asda de. cee eee as

ALTE. Se ah eat EA ea ied A aa

Article 8 of the Convention establishes that the sixteen piers

“shall be regarded as forming part of the coast” ..........

A. The Text of Article 8 specifically treats port facilities as

parts GF Ge ae Se as ee Sev a

B. The commentary of the ILC, as this court has recog-

nized, shows that Article 8 “expressly covers artifical

structures which are not closely linked to ports,” if they

are permanent and connected with the coast ..........

II

Article 3 mage establishes that the sixteen piers, constitut-

ing portions of the charted low-water line, are parts of the

coast for purposes of the Submerged Lands Act ..........

Ill

The California piers are vastly dissimilar from the 100-mile-

long overseas highway in Florida. The decree in United

States v. Florida is hence inapposite ....................

IV

American cases, which without exception treat piers as exten-

sions of the coast, show there is nothing a t in the

ILC’s rule. Moreover, since Congress contemplated that

domestic law would control construction of the Submerged

Lands Act, there is no cause for this court to shun these deci-

EP rar Pe eke ee re pee tage heh 424 te ee ec

Vv

Even if this court were to employ the test adopted by the Spe-

cial Master and the United States, the piers i lis 5

create an “interest in the surrounding waters that would

Crean OHt GH oo. kino sis can ns ens ss bade

a ie eo ea og 45k cea ok ee

10

16

20

ii

TABLE OF AUTHORITIES CITED

Cases Page

East v. Oosting, 245 F.Supp. 51 (E.D. Va. 1965) ............ 24

Michigan Mutual Liability Co. v. Arrien, 344 F.2d 640 (2d Cir.

BD) oh oo oh cc vuanscubeesencaswsaueaweuee tears secsees 19, 22

Nacirema Co. v. Johnson, 396 U.S. 212 (1969) .............. 24

P.C. Pfeiffer Co., Inc. v. Ford, .... U.S. ...., 100 S.Ct. 328

CUI vg vaio vps nl aS CAR a wee eee

Texas Boundary Case, 394 U.S. 1 (1969) .................. 18

The Haxby, 94 Fed. 1016 (1899) ....................055, 18

United States v. California, 381 U.S. 139 (1965) ............ 20

United States v. California, 382 U.S. 448 (1966) ........... 2.6

United States v. California, 432 U.S. 40 (1977) ... .2, 3, 7, 9, 17, 20

United States v. Florida, 420 U.S. 531 (1975) .......... 21, 22, 23

United States v. Florida, 425 U.S. 791 (1976) ........ 20, 21, 22, 23

United States v. Lexington Mill & E. Co., 232 U.S. 399 (1914) 15

United States v. Louisiana, 394 U.S. 11 (1969) .............

Re ne te rare er Ee 5, 9, 10, 11, 14, 18, 24, 25

Western Maryland T.R. Co. v. Mayor, etc. of Baltimore, 68 Atl.

6 (Md. Age. 1007) .... SEIN POE, A ROP 19

Wisconsin v. Illinois, 278 U.S. 367 (1929) .................. 23

Treaties

Convention on the Territorial Sea and the Contiguous Zone,

T.I.A.S. No. 5639, 15 U.S.T. (Pt. 2) 1606 ................

Antiels 3. 3 cua os Sic Si ieee Sho 6, 16, 17, 18, 24

Ailidia® ..... .. ici Sie ee eee passim

Asta MD .... «videos ccncunen ees bale 26

Statutes

Rivess. and Harbors. Act ob RGRD. .... .~ 5. 00. 22 sistent snes caine 23

BUSC.AG . 60. ie ee eee 23

SUSC. $48 .. 2.0000 eee 23

Submerged Lands Act:

4 USE. 9 MARE GEO... ikea eee 20, 24, 25, 27

Cons Zone Management Act of 1972, as amended, 16 U.S.C.

SS acken mg an a Simca ece tel bon’h Sta we deeh eae en re

iii

TABLE OF AUTHORITIES CITED

United Nations Documents Page

Draft Report of the International Law Commission Covering

the Work of its 6th Session, Chapter IV, Regime of the Terri-

torial Sea, U.N. Doc. A/CN.4/L. 48/Add. 4 (1954) ........ 13

International Law Commission (General Assembly Resolution

Se Cee 5 0 ks aoe tbe sects xa Le oan 12

Report of the International Law Commission to the General As-

sembly, 9 U.N. GAOR, Supp. (No. 9), U.N. Doc. A/2693

(1954), reprinted in [1954] 2 Y.B. Intl L. Comm'n, U.N.

Doc. A/CN.4/SER. A/1954/Add. 1 ...................... 13

Report of the International Law Commission to the General As-

sembly, 11 U.N. GAOR, Supp. (No. 9), U.N. Doc. A/3159

(1956), reprinted in [1956] 2 Y.B. Int’l L. Comm'n, U.N. Doc.

pyar ee 10, 12

Summary Records of the 6th Session, [1954] 1 Y.B. Int'l L.

Comm’n, U.N. Doc. A/CN.4/SER. A/1954 ............... 15

Summary Records of the 7th Session, [1955] 1 Y.B. Int'l L.

Comm’n, U.N. Doc. A/CN.4/SER. A/1955 ............... 14, 27

Summary, Records of the 8th Session, [1956] 1 Y.B. Int'l L.

Comm'n, U.N. Doc. A/CN.4/SER. A/1956 ................ 27

Miscellaneous

Hearings before the Commiittee on Foreign Relations, United

States Senate, on Executives J, K, L, M and N, 86th Congress,

Se I IOS os cans oa 6s ease vas eves hives 25

House of Representatives Report No. 2515, 82d Congress, 2d

et ERIN Ferre re a ee ar 2

McDougal and Burke, The Public Order of the Oceans (1962)

RRA EPI Se Si BE RANA TN ONES RI OR Css TREAD 25, 26, 27, 28

II Shalowitz, Shore and Sea Boundaries (1964) ............ 20

Waterborne Commerce Statistics, U.S. Army Corps of Engi-

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In the Supreme Court

OF THE

’ United States

Octoser Term, 1979

No. 5, Original

Unirep States or AMERICA,

Plaintiff,

Vs.

STaTE OF CALIFORNIA,

Defendant.

On the Report of the Special Master

REPLY BRIEF OF THE STATE OF CALIFORNIA

INTRODUCTION

The United States, in its Brief in Opposition to Cali-

fornia’s Exception, depreciates the importance of the his-

torical context of this controversy. U.S. Brief, p. 5, fn. 6.

That context, especially with respect to the “particular

interest” test advocated by the Special Master and the

Government, cannot be ignored. It demonstrates that piers

were historically the ports of southern California, and that,

as circumstances require, recreational piers can be con-

verted to commercial ports in a matter of days. (The Spe-

cial Master found that five of the sixteen piers which are

the subject of the present controversy meet the definition

of a port. Report, ‘pp. 7 n. 7, 20-21.) Moreover that history

underscores the fact that the sixteen piers meet the Inter-

national Law Commission’s criterion of “[p]ermanent

structures erected on the coast and jutting out to sea... .”

Lastly, the history of these piers demonstrates that, per-

haps to a greater degree than other coastal installations

which have been decreed to be parts of the coast, they

create a “particular interest in the surrounding waters that

would otherwise not exist ....” For these reasons, and the

others which we have briefed, the sixteen piers constitute

artificial extensions of California’s coast line within the

meaning of this Court’s prior decrees in this case. United

States v. California, 382. U.S. 448, 449 (1966); United

States v. California, 432 U.S. 40, 41-42 (1977).

The young State of California, as we have shown, was

blessed with a coast line along the Pacific Ocean of more

than one thousand miles. In contrast with States on the

Atlantic seaboard, however, California’s coast line pos-

sessed few fully enclosed natural harbors.’ In Southern

California there was but one, San Diego Bay, at the ex-

treme southern end of the State. As commerce developed,

consequently, piers were built along the coast to serve as

ports. In southern California, where fifteen of the sixteen

piers in the present controversy are located, natural fea-

tures such as offshore islands and submarine canyons pro-

vided a protection from the sea such that vessels could lay

alongside piers 330 days a year. Piers such as the Santa

1House of Representatives Report No. 2515, 82d Congress, 2d

Session p. 19 (1952).

3

Monica also became popular for their restaurants, fishing

and views.

Only later, well after the turn of the century, did arti-

ficial harbors appear on the California coast, formed

by the building of rock breakwaters. The extensive Los

Angeles-Long Beach Ilarbor in San Pedro Bay is the most

notable example. While heavier shipping concentrated

there, piers continued to serve as subsidiary ports between

the principal facilities at San Diego, Los Angeles, and

San Francisco, and other piers were used for recreation.

See Exception of the State of California and Supporting

Brief (“California Brief”), pp. 6-12.

Still later other kinds of coastal structures appeared

on the California coast, structures called “jetties” and

“groins.” Built of closely driven pilings, or more frequently

of piled boulders, these structures have diverse functions.

Some have been built for purposes related to navigation

or coast protection. Others exist for a variety of purposes

unrelated to navigation or coast protection, such as provid-

ing power plants with an intake for cooling water.”

Of these breakwaters, jetties and groins, this Court has

decreed all which affect the three-mile submerged-lands

grant to California to constitute artificial extensions of

California’s coast. United States v. California, 432 U.S. 40

(1977).* The United States argues, however, that the six-

teen piers ought not to be similarly treated. Among the

principal arguments the Government raises in its Brief

are these: (1) Those piers which the Special Master found

*Tr. Denver Hearings, pp. 220-221, 233-234.

‘Photographs of these structures are contained in the green

binder, California Exh. GG.

4

to be ports are too modest to be treated in law as ports.

(2) The fact that the piers are built of timber, concrete

or steel pilings, rather than of rock, disentitles the piers

to treatment as parts of the coast. (3) The use of piers

as ports, or for fishing, dining and strolling, does not

create an “interest in the surrounding waters that would

otherwise not exist,” such as is conceded to exist in the

waters surrounding, for example, a rubble groin. (4) The

piers should not be treated as parts of California’s coast

because they are akin to the causeway connecting the

Florida Keys, which had it been treated as part of the

coast would have created a 100-mile artificial extension of

Florida into the sea. (None of the piers in controversy

exceeds 3,500 feet in length.) (5) This Court may not con-

sult the sound judgment found in nearly one hundred years

of domestic admiralty jurisprudence, which ‘holds firmly

that piers are to be treated as extensions of the land and

not as parts of the sea.

In reply to the matters raised by the Government, we

wish to emphasize these points:

(1) The legislative history including the official Com-

mentary to the Convention on the Territorial Sea and the

Contiguous Zone shows that such structures as the sixteen

California piers are parts of the coast for the purpose of

measuring the territorial sea. T.LA.S. 5639, 15 U.S.T.

(Pt. 2) 1606 (“the Convention”). Article 8 of that Conven-

tion establishes two propositions. The first is that port

facilities “shall be regarded as. forming part of the coast.”

Historically, piers were the ports of Southern California,

and the Special Master found that five of the piers in

controversy meet the definition of a port. Report, pp. 7

5

n. 7, 20-21. The second proposition, as this Court has recog-

nized, is that the Article “expressly covers artificial struc-

tures which are not closely linked to ports,” so long as the

structures are permanent, connected with the coast, and

not of excessive length. United States v. Louisiana, 394

U.S. 11, 50 n. 64 (1969). Each of the piers meets the

Convention’s criteria.

(2) This case concerns the status of sixteen existing

piers on California’s coast. As the Special Master observed

(Report, p. 26), neither California nor any other State

can extend its submerged-lands ownership against the will

of the Government by building new piers. The Army Corps

of Engineers could refuse to allow construction of a pier,

or as it has done in the past, condition its permission upon

a waiver by the State of any claim of additional submerged

land which would be generated by treating the new pier

as part of the coast.‘

(3) Employing the test adopted by the Special Master

and the United States, the California piers unquestionably

create a “particular interest in the surrounding waters

that would otherwise not exist.” In this respect perhaps

the most telling episode in the historical context of this

controversy occurred during World War II, when our

armed forces occupied all of the piers on the California

coast. Some were used as ports for the vessels patrolling

the Pacific Coast; others were held under guard to prevent

their use by enemy ships.°

‘California Exh. S; California Exh. P, document no. 50.

‘Tr. Denver Hearings, pp. 303-304.

6

Article 8 of the Convention on the Territorial Sea and

Contiguous Zone specifically addresses the status of coastal

structures extending into the sea. For that reason we treat

first the Government’s arguments in respect of Article 8.

We next address its remarks respecting Article 3 of the

Convention, and then its other points.

ARGUMENT

I

ARTICLE 8 OF THE CONVENTION ESTABLISHES

THAT THE SIXTEEN PIERS ‘‘SHALL BE RE-

GARDED AS FORMING PART OF THE COAST.”’

A. The Text of Article 8 Specifically Treats Port Facili-

ties as Parts of the Coast.

In 1966 this Court decreed, “The coast line is to be taken

as heretofore or hereafter modified by natural or artificial

means, and includes the outermost permanent harbor works

that form an integral part of the harbor system within

the meaning of Article 8 of the Convention on the Terri-

torial Sea and the Contiguous Zone... .” United States v.

California, 382 U.S. 448, 449. (Emphasis added.) The En-

glish text of Article 8 provides:

“For the purpose of delimiting the territorial sea, the

outermost permanent harbour works which form an

integral part of the harbour system shall be regarded

as forming part of the coast.”

As we have stressed (California Brief, pp. 27-28) and

reiterate below, the French text of the Convention is

equally authoritative with the English. When the two are

read together it is seen that Article 8 focuses primarily

on ports. Nevertheless the United States in its Brief em-

phasizes the concept “harbor” virtually to the exclusion of

considering whether the piers or any of them constitute

ports. U.S. Brief, pp. 13-18. It dissects the English version

of the article and argues that the piers are not “harbor

works,” that they are not “harbors,” and that they are not

part of a “harbor system.” Jd.

Certainly they are not harbors; a harbor is a body of

water, not a structure. Nor are the piers “harbor works”

according to the definitions produced by the United States,

all of which define a breakwater; yet it is certain that

various structures other than breakwaters constitute har-

bor works within the meaning of Article 8. See United

States v. California, 432 U.S. 40, 41-42 (1977). The fifteen

piers which are located in southern California are, how-

ever, parts of a harbor system in the fact that they lie

within the natural protection afforded by that coast.* But

for thirty or so days a year, when storms arrive from the

southeast, these piers have no need of sheltering features

other than what nature has provided.’ Even were these

piers not located within this natural harbor system, how-

ever, it is clear they are “harbor works” within the mean-

ing of Article 8.

A port, as the Special Master found and as the parties

agree, “is any place where passengers or cargo may be

transferred between ship and shore. A port may or may

not be part of a harbor, which is a haven providing safe

*The sixteenth pier, Sharpe Beach, is located just south of San

Francisco. It does not enjoy the natural protection of the southern

California piers.

"See Exception of the State of California and Supporting Brief

(“California Brief”), p. 12.

8

anchorage and sheltering for boats from weather con-

ditions prevailing on the open sea.” Report of the Special

Master, p. 7 n. 7. Implicit in the Government’s argument

respecting the text of Article 8 is the suggestion that the

term “harbor works” applies strictly to works associated

with a harbor, and not to port facilities unconnected with a

harbor. Yet plainly the International Law Commission did

not make the distinction between a port and a harbor

which was noted by the Special Master. Report, p. 7 n. 7.

The Commission titled Article 8 (in both French and

English) “Ports.” Moreover, the French text of the article,

which is equally authoritative with the English and which

must be read together with the English to fully ascertain

the meaning of the article, speaks not of “harbor works”

but of the “permanent installations” of a “port system.”

Too, the first paragraph of the ILC’s official Commentary

to Article 8 specifies the rule for enclosing the inland

waters of a “port” (see note 11, mfra). This point is ex-

pounded in more detail in our opening Brief at pages 27-28.

The Special Master found that five of the piers meet

the definition of a port. These are the Rincon-Punta Gorda,

Carpinteria, Ellwood, Morro Strand and Port Orford piers.

Report of the Special Master, pp. 7 n. 7, 20-21. These piers

then, being “permanent installations” of a “port system,”

are “harbor works” within the meaning of Article 8.

The United States then asserts, however, that the Special

Master found that the transfer of cargo and passengers

at these piers is “de minimis,” and that the Master “con-

cluded that the amount of shipping handled by these facili-

ties does not justify deeming them ‘ports.’” U.S. Brief,

9

pp. 26-27. First, the Special Master did not conclude that

the amount of shipping handled by these piers was not

sufficient to deem them “ports”; he plainly considered them

ports. Report, pp. 7 n. 7, 20-21. His recommendation was

that the amount of shipping handled was insufficient to

consider them as structures assimilated to harbor works

pursuant to the official Commentary to Article 8. Report,

p. 29.° As to the suggestion that a port must handle a cer-

tain volume of shipping before it is deemed in law a port,

“Tt suffices to say that the Convention contains no such

criteri{on].” United States v. Louisiana, 394 U.S. 11, 41 fn.

48 (1969).

In any event, there is no evidentiary basis for the Special

Master’s statement. The issue in this respect before the

Master was whether the piers or any of them are or are

not ports, not whether they are extensive po ‘s or modest

ports. No evidence of the volume of shipping handled by

these five piers was offered by either party. Since the

Government has seized on this remark of the Special

Master, however, it may be worth noting that where figures

are readily available, the volume of shipping can be sur-

prisingly large.®

The United States agrees that the Port Orford Pier is a

port facility “at least to the extent it has a coin-operated

*The Government's remarks with respect to that Commentary are

treated in sub-part I B, below.

*The Corps of Engineers, for example, reports that 4.4 million

tons of cargo was transferred at Morro Strand Pier (listed under

Estero Bay) in 1973. By contrast, the fully enclosed waters of the

adjacent Morro Bay harbor (see United States v. California, 432

U.S. 40, 41, para. 2a) handled but 2,799 tons. Waterborne Com-

merce Statistics, U.S. ag Corps of Engineers (1973), p. 9. See

Tr. Denver Hearings, p. , lines 12-15.

10

davit suitable for lowering small boats into the water.”

US. Brief, p. 26. This facility, it should be noted, is also

equipped with a water-level landing (see California Exh. I)

and three massive dolphins on its lee side for berthing

larger vessels, today primarily oil-company ships. Tr.

Denver Hearings, p. 300. These features were observed by

counsel and the Special Master during an onsite inspection

in November, 1978."

B. The Commentary of the ILC, as this Court Has Recog-

nized, Shows that Article 8 ‘‘Expressly Covers Arti-

ficial Structures Which Are Not Closely Linked to

Ports,’’ if They Are Permanent and Connected with

the Coast.

The second paragraph of the LLC’s official Commentary

to Article 8 reads:

“Permanent structures erected on the coast and jutting

out to sea (such as jetties and coast protective works)

are assimilated to harbour works.””

Citing to this paragraph of the Commentary, this Court

has held that Article 8 “expressly covers artificial struc-

tures which are not closely linked to ports.” United States v.

104 vessel is seen leaving the Carpinteria Pier in the aerial photo-

graph of that pier contained in California Exhibit I, and other

vessels are shown using the pier in the photograph in California

Exhibit GG, under “Miscellaneous Piers.” Pictures of the off-loading

facilitites of the Ellwood, Rincon, and Port Orford piers are also

included in this section of Exhibit GG. Tr. Denver Hearings, pp.

222-224.

Report of the International Law Commission to the General

Assembly, 11 U.N. GAOR, Supp. (No. 9), U.N. Doc. A/3159

(1956), reprinted in [1956] 2 Y.B. Intl L..Comm’n 270, U.N.

Doc. A/CN.4/SER.A/1956/Add. 1. The > quoted by the

United States at page 20 of its brief was not the language of the

ILC Commentary to the final draft of Article 8, but rather of a

“comment” to the 1954 draft of the article.

11

Louisiana, 394 U.S. 11, 50 n. 64 (1969). We hold that this

paragraph means precisely what it says, and that the

sixteen piers, being “permanent structures erected on the

coast and jutting out to sea,” are “assimilated” to harbor

works, and thus to be regarded as forming part of the

coast.” The United States disagrees, making several com-

ments about this paragraph, and then suggesting a con-

struction of it which it asserts would preclude the treat-

ment of piers as parts of the coast. U.S. Brief, pp. 20-27.

First, it asserts that Article 8 of the Convention “did

not break new ground, but merely codified . . .” a principle

adopted in 1930 by the League of Nations Conference,

which concerned ports as such.” It might be accurate to

state this of the text of the article, were there not the

ILC’s Commentary and the extensive preparatory work.

Certainly, the mandate of Article 8 that port facilities be

treated as part of the coast falls into the category of

“codification” of existing principles; nations had histori-

“The Special Master specifically found that all of the piers are

“permanent” facilities. Report, p. 27 n. 21.

18We take emphatic issue with the remarks in footnote 17,

page 22 of the United States’ Brief, respecting Judge Jessup’s

renderings of certain French texts in the ILC records and else-

where. No evidence whatever was offered to contradict Judge

Jessup’s testimony. His fluency in the French language, including

analysis of the French texts of opinions of the International Court

of Justice, was thoroughly established. In addition, passages from

the standard Robert's French Dictionary were introduced to cor-

roborate his translations. Tr. N.Y. Hearings, pp. 138-143, 260-262;

California Exhs. D and E. Moreover, accounts of the ILC discus-

sions in both French and English were introduced, showing that

the English word “pier” was invariably rendered “jetée” in French.

California Exhibit D, Tr. N.Y. Hearings, pp. 138-142. Lastly, of

course, the Special Master took issue with the United States, finding

that the French “jetée” means “pier” as well as “jetty.” Report,

p. 27.

12

cally considered their port works as parts of their coasts.

On the other hand, the principle that permanent coastal

installations, even if not connected with a port or a harbor,

likewise be treated as parts of the coast if they are not

excessively long, may fall within the ILC’s category of

“progressive development” of international law.* The

status of such less-prevalent structures was clearly of

secondary importance to the status of port facilities; the

drafters of the Convention, however, no less clearly pro-

vided that such structures were to be treated as parts of

the coast, the same as port facilities.

The United States asserts that “[t[he references invoked

[by California] are too equivocal to support” the conclu-

sion that the Commentary assimilates permanent structures

erected on the coast to “harbour works,” U.S. Brief, p. 24.

“The statute of the International Law Commission (General

Assembly Resolution 174 (II), November 21, 1947), charges the

Commission with the codification and Fs are development”

of international law. In its report to the General Assembly respect-

ing the final draft of the Convention, the Commission observed:

“In preparing its rules on the law of the sea, the Commis-

sion has me convinced that, in this domain at any rate,

the distinction established in the statute between these two

activities can hardly be maintained. Not only may there be

wide differences of opinion as to whether a subject is already

‘sufficiently devel in practice’, but also several of the

provisions adopted by the Commission, based on a ‘recognized

principle of international law’, have been framed in such a

way as to place them in the ‘progressive development’ cate-

gory. Although it tried at first to specify which articles fell

into one and which into the other category, the Commission

has had to abandon the attempt, as several do not wholly

belong to either.”

Report of the International Law Commission to the General Assem-

bly, U.N. Doc. A/3159, su note 11, para. 26, [1956] 2 Y.B.

Int'l L. Comm'n 255-256. ( mphasis added. )

13

The references are not at all equivocal. The Commission

members in 1954, 1955 and 1956 discussed lighthouses, jet-

ties (which are often unconnected with a port or harbor),

protecting dikes, and structures used for the purpose of

harnessing tidal energy. Moreover, there was extensive dis-

cussion of a seven-mile-long pier in the Persian Gulf, which

the Government concedes was apparently unassociated with

a harbor. U.S. Brief, p. 23. The product of these discussions

was the paragraph of the Commentary in question, which

“assimilates” such coastal structures to harbor works. Sig-

nificantly, the first draft of this paragraph read:

“Permanent structures erected on the coast and jutting

out to sea (such as jetties and protecting walls or

dykes) are deemed to be harbour works.” (Emphasis

added.)

To make clear that the paragraph referred to coastal instal-

lations not necessarily related to a port or harbor, the

words “are deemed to be” were changed to “are assimilated

to” in the official draft.** These references could have been

made less “equivocal,” we submit, only had the Commission

specifically discussed the California piers.”

Next, the Government asserts that if the Commentary

were read at face value, it would have amounted to a “radi-

Draft Report of the International Law Commission Coverin

the Work of its 6th Session, Chapter IV, Regime of the Territoria

Sea, U.N. Doc. A/CN.4/L.48/Add.4 (1954).

16Report of the International Law Commission to the General

Assembly, 9 U.N. GAOR, e“" (No. 9), U.N. Doc. A/2693 (1954),

reprinted in [1954] 2 Y.B. Int’l L. Comm’n 155, U.N. Doc.A/CN.

4/SER.A/1954/ Add. 1.

17Footnote 18 on page 24 of the United States’ Brief is perplexing.

All of the “legislative deliberations” cited by California-the dis-

cussions of the ILC—occurred prior to the adoption of the Con-

vention at the Geneva Conference in 1958.

14

cal change of view by the Commission,” a “wholly new

rule.” U.S. Brief, pp. 23, 24. The United States is over-

stating the matter. It is entirely natural that the Commis-

sion “assimilated” to harbor works “permanent structures

erected on the coast and jutting out to sea,” even when not

associated with a port or harbor, rather than treating the

subject in a separate article. Sir Gerald Fitzmaurice ex-

pressed the rationale of the ILC best:

“... The Commission’s rule that jetties and piers be

treated as part of the coastline had been based on the

assumption that those installations would be of such a

type as to constitute a physical part of such coastline ;

it would indeed have been inconvenient to treat that

kind of installation otherwise than in the manner advo-

cated by the Commission. But huge piers of the type

being constructed in the Persian Gulf [i.e., the seven-

mile pier, ought to be treated differently].” (Emphasis

added.)**

(It was this latter concern with overly long structures

which led to the third paragraph of the [LC’s Commentary

to Article 8, expressing caution against the use as base-

points of structuress several kilometers in length. The

length of the longest pier in issue is but 3500 feet. Report,

p. 21.)

Too, it may be recalled that a separate article for non-

port-related structures was once suggested, but that the

**Summary Records of the 7th Session, [1955] 1 Y.B. Int'l L.

Comm'n 73, U.N. Doc. A/CN.4/SER. A/1955. The italicized por-

tion of this passage was quoted in United States v. Louisiana,

supra, 394 U.S. at 37 n. 42.

15

Commission elected to treat the matter in the form of the

Commentary to Article 8.”

The Government’s suggested construction of the Com-

mentary is then given on page 25 of its Brief :*°

“The location of the Comment under Article 8 can be

explained as indicating the Commission’s view that the

coastline is affected by artificial structures jutting out

to sea (as opposed to artificial landfill) only when they

perform a function comparable to harbor works—such

as protecting or sheltering the shore.” U.S. Brief, p. 25.

But the very language of the Commentary belies the

Government’s suggestion. Had the Commission intended

what the Government suggests, it would have written some-

thing to this effect: “Protecting or sheltering siructures

only are assimilated to harbor works.” But it did not. It

provided that “[p]ermanent structures erected on the coast

and jutting out to sea. . . are assimilated to harbour

works.” And it gave two examples of what it meant, struc-

tures “such as jetties and coast protective works.” Had the

Commission intended the rule to be limited to jetties and

coast protective works, “it would have done so by choice of

apt words to express that intent. It did not do so... .”

United States v. Lexington Mill & E. Co., 232 U.S. 399,

410 (1914).

Summary Records of the 6th Session, [1954] 1 Y.B. Int'l L.

Commn 88, U.N. Doc. A/CN. 4/SER. A/1954.

2°The United States throughout its Brief incorrectly refers to the

Commentary as a “Comment.” “Commentary” is the appropriate

term for the Commission’s official remarks on the final draft of the

Lonvention as reported to the General Assembly. The term “Com-

ment” is used to describe such remarks accompanying earlier, work-

ing drafts of the Convention. See Jessup Memorandum, California

Exh. C, p. 43.

16

II

ARTICLE 3 SIMILARLY ESTABLISHES THAT THE

SIXTEEN PIERS, CONSTITUTING PORTIONS OF

THE CHARTED LOW-WATER LINE, ARE PARTS

OF THE COAST FOR PURPOSES OF THE SUB-

MERGED LANDS ACT.

While Artiele 8 specifically addresses the question of

coastal structures jutting into the sea, Article 3, which

states the rule of the “normal baseline,” corroborates the

conclusion that the sixteen piers are to be treated as parts

of the coast. The United States presents its arguments

with respect to Article 3 in sections II and VI of its Brief.

U.S. Brief, pp. 11-13 and 30-33. We address the points

made in both those sections of the Government’s brief here.

Article 3 provides,

“Kixcept as otherwise provided in these articles, the

norma! baseline for measuring the breadth of the

territorial sea is the low-water line along the coast

as marked on large-scale charts officially recognized

by the coastal State.” (Emphasis added.)

The United States takes issue with California by asserting

that the piers are not depicted as segments of the low-

water line on the Government’s official charts. U.S. Brief,

p. 30. It acknowledges that the piers are depicted by a

thin black line (an extension of the line used for all other

segments of the low-water line), but asserts that this fact

is insufficient to treat the piers as parts of the normal base-

line within the meaning of Article 3. Several observations

are pertinent.

17

The United States urges that piers must be connected

with a harbor or constitute “coast protective works” to

qualify as parts of the coast, notwithstanding that this

Court has decreed as parts of the coast a number of struc-

tures, including certain jetties, having neither attribute.

United States v. California, 432 U.S. 40 (1977) ; see note 2,

supra. Not acknowledging that such structures are assimi-

lated to harborworks by the terms of the Commentary to

Article 8, the Government suggests instead that Article 3

“presumably was the premise” of the 1977 decree. U.S.

Brief, pp. 11-12.” If Article 3 is in fact the basis for treat-

ing these structures as parts of the coast, it is for only

one reason: they are shown as parts of “the low-water

line as marked on large-scale charts officially recognized

by” the United States. But as the Government concedes,

the piers are shown in the identical manner.” If the struc-

tures referred to are parts of the coast by virtue of

Article 3 then, the piers are similarly parts of the coast.

If it is Article 8 that treats these jetties which serve no

harbor or coast-protective function as parts of the coast,

it is because they are “permanent structures erected on

the coast and jutting out to sea.” The piers, meeting the

same criterion, must be similarly treated. But the Govern-

ment cannot fight both articles. Its position “deserves the

ironic tribute . .. that it works for the United States pre-

*1Moreover, two of its witnesses testified that jetties and groins

are to be treated as parts of the coast by virtue of Article 3. Deposi-

tion of Robert D. Hodgson, Defendant's Exh. U-1, p, 131, lines 1-4;

testimony of Elihu Lauterpacht, Tr. N.Y. Hearings, pp. 186-187.

22In fact, Dr. Hodgson testified that this identical manner of

depiction accounted at least in one instance for the fact that the

United States has used piers as basepoints on the charts that depict

its claim of territorial sea. The draftsman, he testified, assumed the

pier was a jetty or breakwater. Tr. Denver Hearings, pp. 389-395.

18

cisely as the old game of ‘heads I win, tails you lose.’ ”

Texas Boundary Case, 394 U.S. 1, 9 (1969) (Black, J.,

dissenting).

The United States elsewhere argues that “the absence

of a low-water line critically distinguishes piers [from

other coastal installations} and irrevocably excludes them

from consideration under Article 3.” U.S. Brief, p. 12.

The touchstone of Article 3 of course is not “a low-water

line,” but rather “the low-water line as marked on large-

scale charts officially recognized by the coastal State.” -

On the Government’s charts, as we have shown, this line

follows the outline of the piers into the sea. But in any

event, a pier does have a low-water line-—that height on

its substructure reached by the sea at low water. What

the Government is in fact arguing, as it did before the

Special Master (Report, p. 24), is that a pier lacks a “con-

tinuous low-water line.” The argument is that because a

pier is a pile-supported structure, there are “gaps” in the

low-water line between one piling and the next. This fact

of being built upon pilings, continues the argument, dis-

qualifies the piers from treatment as parts of the coast.”

Again we would note, “It suffices to say that the Conven-

tion contains no such “criterif{on].” United States v. Lou-

isiana, 394 U.S. 11, 41 n. 48. The remarks of the Maryland

Court of Appeal, quoting from the early American case,

The Haxby, 94 Fed. 1016 (E.D. Pa. 1899), are appropriate :

“The Century Dictionary defines a pier to be “a

projecting quay, wharf or other landing place”; and,

without some qualifying adjective, this is the ordinary

5A “continuous” low-water line could be effected simply by nail-

ing planks from piling to piling at the elevation of low water.

19

meaning of the word. It may be a solid stone struc-

ture, or an outer shell of stone or wood filled in with

earth; or it may be a framework formed by fastening

a platform of planks upon piles driven into the soil

at the bottom of the water. In either event, it is a

projection of the land, and for purposes of jurisdic-

tion it should be so treated’. ... The mere fact that

these piers are built upon piles, instead of on solid

ground, ought not to make any difference. They are

permanent structures, and as effectively monopolize

the use of the land under them as if they were built

in one of the other ways mentioned in The Haxby.”

Western Maryland T.R. Co. v. Mayor, etc. of Balti-

more, 68 Atl. 6, 10 (Md. App. 1907).

The Second Circuit has noted too:

“A wharf or pier is usually built on pilings over what

was navigable water. When the structure is completed,

the water over which it is built is permanently removed

from navigation as if the structure had been in the first

instance built on land.” Michigan Mutual Liability Co.

v. Arrien, 344 F.2d 640, 644 (2d Cir. 1965) (emphasis

in original).

The Special Master rejected the United States’ argument

about the “continuous” low-water line, recognizing that this

mode of construction is immaterial. For one, he noted that

structures the United States calls “solid” (U.S. Brief, p.

12), such as the Long Beach breakwater, are as much as

forty-five per cent water, and in this respect also lack a

“continuous low-water line.” Report, p. 24. Too, portions of

the Zuniga jetty at San Diego are submerged, thus creating

“discontinuities” in the low-water line, yet this Court has

20

decreed that the jetty is an artificial extension of the coast.

Report, pp. 17-18; United States v. California, 432 US.

40, 41-42.

In any event, sea caves, overhanging cliffs, and the im-

precision of hydrographic surveying render the notion of

a truly “continuous” low-water line a myth. Testimony of

William J. Herron, Tr. Denver Hearings, pp. 225-226, 271-

276, 361-362. Mr. Shalowitz also provides a good exposition

of the approximate and “discontinuous” nature of the low-

water line. II Shalowitz, Shore and Sea Boundaries (1964),

pp. 183-184, 187.

III

THE CALIFORNIA PIERS ARE VASTLY DISSIMILAR

FROM THE 100-MILE-LONG OVERSEAS HIGHWAY

IN FLORIDA. THE DECREE IN UNITED STATES

V. FLORIDA IS HENCE INAPPOSITE.

The United States argues that treating the sixteen piers

as parts of California’s coast line for purposes of the Sub-

merged Lands Act is inconsistent with this Court’s decree

in United States v. Florida, 425 U.S. 791 (1976). U.S. Brief,

pp. 27-30. The argument is unsound.

In the Florida Submerged Lands Act litigation the ques-

tion arose whether Florida Bay (see United States’ Exhibit

23) constituted either an “historical” or “judicial” bay. (For

the distinction between the two, see generally United States

v. California, 381 U.S, 139, 172-175 (1965).) Florida Bay is

bounded on the south by a series of keys connected by a

causeway constituting the “Overseas Highway,” U.S. High-

way 1. The question was heard by Special Master Albert

21

B. Maris, whose report dated January 18, 1974, was ex-

cepted to by both the United States and Florida. The Court

overruled Florida’s exception to the recommendation that

the Bay not be ruled an “historic” bay. But it referred back

to the Special Master his recommendation that certain por-

tions of the bay be recognized as a juridical bay. United

States v. Florida, 420 U.S. 531, 533 (1975). Thereafter the

parties stipulated that no inland waters exist within Florida

Bay, and the Special Master in his second report dated

December 30, 1975, recommended that the stipulation be

approved. The parties then moved jointly for the entry of

a decree approving the stipulation and the motion was

granted. United States v. Florida, 425 U.S. 791, 793 (1976).

Thus, asserts the United States, the Court has ruled the

Overseas Highway causeway not to constitute an “artificial

extension of the coast.” And, runs the argument, since the

California piers are of open-pile construction, as is the

causeway (see United States’ Exhibit 14), the piers should

not be regarded as artificial extensions of the coast. U.S.

Brief, p. 30. The dissimilarities between the Florida cause-

way and the California piers, however, undo the parallel

drawn by the United States.

As Judge Jessup noted upon cross-examination by Mr.

Ryan, if the causeway were treated as a structure “assimi-

lated” to Article 8 harborworks, it would effect a 100-mile

artificial extension of the coast. Tr. N.Y. Hearings, pp. 104-

105. Such an extension would, he observed, contravene the

intent of the third paragraph of the official Commentary

to Article 8. (See text following Note 18, supra.) That para-

graph cautions against using as basepoints structures of

22

excessive length, and as Judge Jessup stated, was based

upon discussion of a seven-mile-long pier in the Persian

Gulf.

Another distinguishing feature is the fact that the cause-

way is designed to admit navigation through it at many

points. Dr. Hodgson, testifying for the Government, pointed

out numerous navigational channels through the causeway,

circling them in red on Plaintiff’s Exhibit 23. The piers on

the other hand, are “built on pilings over what was navi-

gable water. When the structure is completed, the water

over which it is built is permanently removed from naviga-

tion as if the structure had been in the first instance built

on land.” Michigan Mutual Liability Co. v. Arrien, supra,

344 F.2d 640, 644 (2d Cir. 1965). As the Special Master

observed, the piers do not admit of navigation beneath their

decks. Report, p. 21.

What the Government argued in Florida emphasizes

this dissimilarity between the causeway and the piers:

“The islands west of Knight Key cannot be con-

sidered part of the mainland .... As the State con-

eedes (Br. 58), the most seaward of those islands,

Key West, is over 100 highway miles from the main-

land; and a water gap of more than 5 miles separates

Bahia Key, the easternmost of the lower Keys, from

Knight Key, the westernmost of the upper Keys.

These distances are far too great to permit the lower

Florida Keys to be realistically considered part of the

mainland. . . . Similarly, the water channels west of

Kmghi Key (through the causeway], although not

deep enough to accommodate truly large vessels, are

nevertheless navigable by ocean-going fishing vessels;

those channels therefore are of sufficient international

23

significance to foreclose treatment of outlying islands

as part of the mainland.” Brief of the United States

in Response to Defendant’s Brief in Support of Its

Exceptions to the Report of the Special Master,

United States v. Florida, No. 52, Original, August,

1974, pp. 27-28. (Emphasis added.)

Several other points may be mentioned. While the Inter-

national Law Commission on a number of occasions men-

tioned piers in its discussions of what became Article 8,

one finds no mention of bridges or causeways. Secondly,

the phrase contained in the second paragraph of the Com-

mentary, “[pJermanent structures erected on the coast

and jutting out to sea,” aptly describes the California

piers; it does not, however, describe a series of bridges

connecting a string of offshore islands. Tr. Denver Hear-

ings, pp. 368-369. Thirdly, Congress has seen fit to draw

a significant distinction between piers on the one hand

and causeways or bridges on the other. By the Rivers and

Harbors Act of 1899 it delegated to the Secretary of the

Army through the Corps of Engineers the authority to

permit construction of jetties, breakwaters, wharves and

piers. 33 U.S.C. § 403. But it reserved to itself the power

to approve construction of causeways. 33 U.S.C. § 401."

2*The Rincon-Punta Gorda complex is truly, in the contemplation

of engineering and the law, a “pier” and not a causeway; otherwise

the Corps of Engineers could not have issued a permit for its con-

struction. Tr. Denver Hearings, pp. 309-310, 1; see also Tr.

Denver Hearings, p. 389, line 7 Saetnoay of Robert D. a).

This construction by the Corps of the Act’s application to the Rincon

Pier is significant in determining whether “pier” or “causeway” more

rly “m= the structure. Wisconsin v. Illinois, 278 U.S.

, 413 (1929).

24

IV

AMERICAN CASES, WHICH WITHOUT EXCEPTION

TREAT PIERS AS EXTENSIONS OF THE COAST,

SHOW THERE IS NOTHING ABERRANT IN THE

ILC’S RULE. MOREOVER, SINCE CONGRESS CON.

TEMPLATED THAT DOMESTIC LAW WOULD CON.

TROL CONSTRUCTION OF THE SUBMERGED

LANDS ACT, THERE IS NO CAUSE FOR THIS

COURT TO SHUN THESE DECISIONS.

In American law, “[f]rom time immemorial piers, docks,

wharves and other like structures, which are firmly at-

tached to the land and extend over navigable waters, have

been deemed to be extensions of the land. . .” East v.

Oosting, 245 F.Supp. 51, 53-54 (E.D. Va. 1965). In its

Brief, at pages 38-40, the United States mischaracterizes

California’s citation to the unbroken line of domestic ad-

miralty cases holding that piers are extensions of the land.

See California Brief, pp. 41-42. We recognize that the

Convention has been adopted to provide definitions for

the Submerged Lands Act; otherwise we would not stress

the fact that Articles 3 and 8 of the Convention treat the

sixteen piers as forming parts of the coast. But the Ameri-

can cases are useful to show there is nothing strange or

esoteric in what one ILC member called “[t]he Commis-

sion’s rule that jetties and piers be treated as part of the

coastline... .”*° (This remark was quoted by this Court

*°See note 18, supra, and accompanying text. P.C. Pfeiffer Co.,

Inc. v. Ford, .... US. ...., 100 S.Ct. 328 (1979), does not affect

this Court's rule that piers are extensions of the land. See Nacirema

Co. v. Johnson, 396 U.S. 212 (1969). Pfeiffer merely reflects the

fact that Con has exte the coverage for injuries to long-

shoremen harbor workers. Formerly the worker was covered

only if the injury occurred on navigable waters; he is presentl

covered even if the injury occurs on certain land facilities “ad.

joining” navigable waters, e.g., piers. Id. at 332-333.

29

in United States v, Louisiana, 394 U.S. at 37 n. 42.)

Moreover, as we have shown, Congress plainly contem-

plated that questions of construction of the Submerged

Lands Act would be controlled not by international law but

by domestic law. California Brief, pp. 38-41. It might be

added that seven years later, when the Convention was

before the Senate for its advice and consent, Government

witnesses again stressed that nothing in those principles

of international law would prejudice the rights of the

States under the Submerged Lands Act.” In this light, we

see no reason that this Court must ignore the teachings of

our domestic jurisprudence.

V

EVEN IF THIS COURT WERE TO EMPLOY THE TEST

ADOPTED BY THE SPECIAL MASTER AND THE

UNITED STATES, THE PIERS UNQUESTIONABLY

CREATE AN ‘“‘INTEREST IN THE SURROUNDING

WATERS THAT WOULD OTHERWISE NOT EXIST.’’

The Special Master recommended that the status of

the sixteen piers as parts of the coast be determined by

applying the “particular interest” test suggested by authors

McDougal and Burke, The Public Order of the Oceans

(1962), pp. 387-88. Report, pp. 26-27. The United States

also urges adoption of this test. U.S. Brief, pp. 33-37. We

stress again that the criterion of the Convention is unam-

**Hearing before the Committee on ro Relations, United

States Senate, on Executives J, K, L, M, and N, 86th Congress, 2d

Session (1960), pp. 19-20.

26

biguous: “[pJermanent structures erected on the coast

and jutting out to sea... .” Of the appropriateness of the

McDougal and Burke test, therefore, it should suffice once

again to note that “the Convention contains no such cri-

teria.” United States v. Louisiana, 394 U.S. at 41 fn. 48. We

shall reply, nevertheless, to the remarks made by the Gov-

ernment.

The United States, it should first be mentioned, ignores

the fact that the “interest” test was formulated by its

authors not to determine the status of structures erected

on the coast, such as piers, but to determine whether arti-

ficial islands unconnected with the coast ought to be used

for delimiting the territorial sea. McDougal and Burke, pp.

387-88. Contrary to the Government’s assertion (U.S. Brief,

p. 35), the test is plainly a departure from principles of

international law, for Article 10 of the Convention pro-

hibits the use of artificial islands as basepoints.”’

Second, the Special Master and the United States cite

only the “policy issue” suggested by the authors, but not

the authors’ “chief criterion”:

“The chief criterion for appraising the reasonable-

ness of a claim to delimit the territorial sea, or of an

area of internal waters, from an artificially formed

area of land surrounded by water, is whether it is

constructed for practical use or rather only as a dis-

*7The United States is correct (U.S. Brief, pp. 34-35) that Cali-

fornia had called to the attention of the Raocial Master the passage

in question. Both parties in fact made reference to the work of

McDougal and Burke in their review of the literature. See, e.g.,

United States Exhibit 12, p. 35. Neither the Special Master, how-

ever, nor either of the parties noticed that the authors’ suggested

criterion was designed not for application to structures erected on

the coast, but to artificial islands offshore. We regret the oversight.

27

“guised attempt to extend the territorial sea or internal

waters without other relation to local interest.” Mc-

Dougal and Burke, pp. 387-88.

None of the piers in issue was built as a “disguised attempt

to extend the territorial sea,” or the lands confirmed in

California by the Submerged Lands Act. All were built for

“practical use”: for ports, for energy production, for fish-

ing, and for recreation.

Third, the United States notes (U.S. Brief, p. 33) that

the Special Master resorted to the McDougal and Burke

criterion only after concluding that “the drafters of the

Geneva Convention ... simply did not think of or consider

the question of artificial piers ....” Report, p. 28. But the

Master’s statement is demonstrably incorrect, as shown by

the Commission members’ extensive discussion of the

seven-mile pier in the Persian Gulf. See California Brief,

pp. 24-27. Moreover, Sir Gerald Fitzmaurice of the United

Kingdom in 1955 and again in 1956 made reference to

“Tt]he Commission’s rule that jetties and piers be treated

as part of the coastline ... .”** (Emphasis added.) Even

had there not been these express references to piers, how-

ever, the ILC’s criterion unquestionably applies to the Cal-

ifornia piers: “Permanent structures erected on the coast

and jutting out to sea... .”

But even if we assume that the question had been left

open by the ILC, and that resort to the McDougal and

Burke criterion were appropriate, it is plain that the six-

“Summary Records of the 7th Session, [1955] 1 Y.B. Int'l L.

Comm'n 73, U.N. Doc. A/CN. 4/SER. A/1955; S Records

of the 8th Session, [1956] i Y.B. Int'l L. Comm'n 193, UN. Doc. A/

CN. 4/SER. A/1956.

28

teen piers create an “interest in the surrounding waters

that would otherwise not exist ....”’ The Special Master

focused on two interests only of the coastal nation, those

created by harbors and those by “coastal maintenance”

facilities. Report, p. 29. But the authors-whose test the

Master adopted did not so limit the kinds of “interest”

they meant. Chapter 1 of their work deals extensively with

those interests, which to abbreviate a lengthy discussion

are, broadly, four: Power (e.g., defense facilities), wealth

(e.g., commerce facilities), well-being, and enlightenment

(e.g., ocean-research facilities). McDougal and Burke, pp.

9-10. In this light, it cannot be said that the sixteen piers

do not create a “particular interest in the surrounding

waters that would otherwise not exist.” As we bave em-

phasized, five of the piers were specifically found to meet

the definition of a port. Report, pp. 7, fn. 7, 20-21. Produc-

ing oil wells are situated on two of the piers, the Rincon

(Report, p. 20) and the Ellwood (see photographs in Cal-

ifornia Exhibit I). The national policy recognizing coastal

recreation facilities as important to our nation’s well-being

certainly invests those piers which serve primarily recre-

ational purposes with an interest “that would otherwise not

exist.” The ready adaptability of the piers to changing

conditions, demonstrated by the conversion of two recrea-

tional piers to ferry terminals in the wake of a massive

landslide,” further illustrates the interests generated by

these piers.

See California Brief, p. 37; Coastal Zone Management Act of

1972, as amended, 16 U.S.C. § 1451.

*°California Brief, p. 11, fn. 21.

29

Lastly, recent events in the Middle East have recalled to

our Country’s awareness what is any nation’s most vital

interest, security. During World War II (and one may as-

sume that similar, secret contingency plans exist today),

all of the piers on the California coast were seized by our

armed forces. Some were used as transfer points for

vessels patrolling the Pacific coast; the others were held

under guard to prevent their use by enemy vessels."

We would suggest again that if this Court finds it ap-

propriate to resort to the writings of commentators, the

three State Department publications expressing the view

that piers constitute parts of the coastline should be con-

sulted. See California Brief, pp. 42-43. (A diagram from

the 1965 and 1969 publications, sowing a pier unconnected

with a port or harbor and used for delimiting the terri-

torial sea, is reproduced on page 51 of Californa’s Petition

for a Fourth Supplemental Decree.) The United States

makes no comment on these publications in its Brief.

“Tr. Denver Hearings, pp. 303-304.

30

CONCLUSION

We submit that the United States has advanced no cogent

reason to disqualify the sixteen piers as artificial exten-

sions of California’s coastline. The piers squarely meet the

criteria of the Convention. Moreover, even employing the

test recommended by the Special Master and the United

States, they unquestionably create a “particular interest

in the surrounding waters that would otherwise not exist

....” For the reasons brief herein and in our opening brief,

we respectfully requesc that this Court enter its Supple-

mental Decree in the form proposed by California in its

Petition for a Fourth Supplemental Decree.

February 14, 1980

Respectfully submitted,

Grorce DeuKMEJIAN

Attorney General of the

State of California

N. Grecory TayLor

Assistant Attorney General

Joun Briscor

Nancy A. SaGGEse

Deputy Attorneys General

Attorneys for Defendant

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