# Reply Brief — United States v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0001%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1980 - **Citation:** 447 U.S. 1 ## Text 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- a Re ere ee SEP ae seer ae Ley Sag 9 4 sy ha Yr oa ' Ps ¥ - a . S , 22ers - ws senanecn ett Sead tari? — MW: stip SM. nee Petia et y 2 kt tyeedt Vied rf a! _ - ae snot bes test, Vj ie igh ri é hy ween : . YE ety is BAe Dk era) eet heey wy 7 » . eC im ern sitio oa ARO RD. 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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 7 : iy > aan i ran) ann = S --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0001%3A4. Public record. Not legal advice.