SpecialMasters Report — UNITED STATES v. MAINE (No. 80/81)

ED

MAY 26 1981

IN THE OFFICE OF THE CLERK

SUP U.S.

SUPREME COURT OF THE UNI

OCTOBER TERM, 1979

No. 35, Original

UNITED STATES OF AMERICA,

Plaintiff,

VS.

STATE OF MAINE, ET AL.,

Defendants.

(Massachusetts Boundary Case)

REPORT OF THE SPECIAL MASTER

WALTER E. HOFFMAN

Senior United States

District Judge

Norfolk, Virginia

Special Master

TABLE OF CONTENTS

Page

I, INTRODUCTION | «sc cc chats were ee |

Hi. DISCUSSION. 6..506h 05d ne eeeee ee eee

Il. CONCLUSION AND RECOMMENDATIONS.......5

IV. APPENDICES... ...055 0000 0ea se cee 7

A. Proposed Supplemental Decree............. A-]

B. Chart depicting the closing line described in

paragraph l(a) of the proposed Sup-

plemental Decree. .\.)......+ 55 sce. aes eee A-3

C. Chart depicting the closing line described in

paragraph 1(b) of the proposed Sup-

plemental Decree... 20. «., isa sae ee A-5

TABLE OF CITATIONS

New Hampshire v. Maine, 426 U.S. 363 (1976) ............. 4

United States v. California, 382 U.S. 448 (1966) ............ 4

United States v. California, 432 U.S. 40 (1977) ............. 5

United States v. California, 439 U.S. 30 (1978) 2.2... 00000... 4

United States v. Loutsiana, 382 U.S. 288 (1965). ............ 4

United States v. Louisiana, 404 U.S. 388 (1971)............. 4

United States v. Louisiana, 409 U.S. 17 (1972).............. 4

United States v. Maine, 420 U.S. 515 (1975) ............... |

United States v. Maine, 423 U.S. 1 (1975) .......... 1, 2, A-l

United States v. Maine, 433 U.S. 917 (1977)........... 2, A-l

Vermont v. New York, 417 U.S. 270 (1974) ................ 4

OTHER REFERENCES

Submerged Lands Act, 43 U.S.C. 1301

Outer Continental Shelf Lands Act, 43 U.S.C. 133

Forest and Rangeland Renewal Research

Act of 1978, 16 U.S.C. 1641

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. 35, Original

UNITED STATES OF AMERICA,

Plaintiff,

VS.

STATE OF MAINE, ET AL.,\

Defendants.

(Massachusetts Boundary Case)

REPORT OF THE SPECIAL MASTER

INTRODUCTION

On March 17, 1975, the Court announced its basic ruling

in this case. Invoking the Submerged Lands Act, 43 U.S.C.

1301, et seq., the Outer Continental Shelf Lands Act, 43

U.S.C. 1331, et seg., and prior decisions, the Court held that

each of the 13 States bordering on the Atlantic Ocean, includ-

ing the Commonwealth of Massachusetts, is only entitled to

a belt of seabed extending three geographical miles from its

coastline. 420 U.S. 515. That decision was subsequently for-

malized in a Decree, declaring the rights of the States in the

seabed three miles from the coastline and the rights of the

United States in the submerged lands beyond. 423 U.S. ]

(1975). As in like judgments, the Decree provided that the

“coastline,”’ or baseline for delimiting state ownership and

jurisdiction, shall be ‘‘the line of ordinary low water along

that portion of the coast which is in direct contact with the

open sea and the line marking the seaward limit of ir ard

]

waters.’’ Id. at 2. The Decree did not otherwise delimit the

coastline of each defendant State. Accordingly, the Court

expressly reserved jurisdiction to entertain further proceed-

ings, ‘including proceedings to determine the coastline of

any defendant State,”’ and all parties were given leave to file

a motion for such supplemental proceedings. Ibid.

The United States and the Commonwealth of Mas-

sachusetts did not agree on the baseline from which the

three-mile belt should be measured and, in January, 1977,

they jointly moved the Court to entertain supplemental pro-

ceedings and to appoint a Special Master for that purpose.

On June 29 of the same year, the Court appointed the under-

signed as Special Master in the case. 433 U.S. 917 (1977). The

Order of appointment authorized the Special Master, iter

alia, ‘‘to fix the time and conditions for the filing of additional

pleadings and to direct subsequent proceedings,” and in-

structed him ‘‘to submit such reports as he may deem

appropriate.” Id. at 917-918.

_In due course, the United States filed with the Special

Master a Memorandum in lieu of a Complaint describing its

claims and the Commonwealth filed a Memorandum in lieu

of an Answer setting forth its own claims. The resulting dis-

pute centers ‘on the status of Massachusetts Bay, Buzzards

Bay, Vineyard Sound, and Nantucket Sound as inland wa-

ters of the Commonwealth. The parties have engaged in ex-

tensive discovery, and several conferences have been held

before the Special Master to discuss and resolve procedural

matters.

Prior to the initiation of evidentiary hearings, the parties

advised the Special Master that settlement negotiations were

actively progressing, and the proceedings were accordingly

held in abeyance for some months. On June 30, 1980, the

United States and the Commonwealth of Massachusetts ex-

ecuted a Memorandum of Settlement, subject to the approv-

al of the Special Master and of the Court.

A conference was held before the Special Master on July

%

-

24, 1980, in order to brief him on all of the aspects and under-

lving considerations of the Settlement. On that day, the Spe-

cial Master, in the presence of counsel, was afforded the

opportunity of an extensive low-level aerial viewing of the

geographic areas that are crucial to the terms of the Settle-

ment. After full consideration of its terms, the Master has

concluded that the Settlement is fair, equitable, and just.

There are two major aspects to this Settlement Agree-

ment. The first provides for the resolution of the dispute as

to Vineyard Sound and Nantucket Sound, contingent,

however, upon the successful completion of the federal

administrative process to designate a certain portion of the

disputed area as a federal marine sanctuary, pursuant to 16

U.S.C. 1641, et seq. This aspect of the Settlement is not the

subject of the present Report.

This Report deals with the second aspect of the Settle-

ment, which is confined to those areas that the parties have

agreed to settle with finality, regardless of the outcome of the

administrative proceedings referred to above. The parties

propose to fix the closing lines for Massachusetts Bay and

Buzzards Bay. In essence, the Commonwealth accepts the

federal lines within Massachusetts Bay, and the United

States accepts the Commonwealth's line at Buzzards Bay.

These closing lines are described in the proposed Sup-

plemental Decree appended to this Report and are depicted

on the appended charts.

Notice of the recommended proposed decree has been

given to each of the other States, parties in No. 35, Original,

and no State has shown any cause why the decree should

not be entered.

DISCUSSION

The two sovereigns have agreed upon appropriate clos-

ing lines within Massachusetts Bay and for Buzzards Bay.

They join in urging the entry, at this time, of a decree fixing

those portions of the Massachusetts coastline. In the view of

the Special Master, such action is entirely appropriate.

1. It is doubtful whether any official of the Executive

Branch can indefinitely and irrevocably bind the federal gov-

ernment; only a decree can surely settle the matter with final-

ity. The Agreement of the parties is conditioned upon the

entry of such a decree, placing the issue beyond further con-

troversy, except only in the event subsequent geographical

changes so alter the physica! coastline as to justify an ap-

plication to the Court to vary the Decree.

The proposed Decree does not purport to adjust a

boundary without reference to applicable law, or leave the

matter open for subsequent ‘‘arbitration.”” Compare Vermont

v. New York, 417 U.S. 270 (1974). On the contrary, after vears

of active controversy over the dividing line between federal

and state submerged lands, the parties have agreed upon the

correct application of settled legal principles to specified seg-

ments of the boundary, now proposed to be fixed with final-

ity. Without purporting to adjudicate the matter indepen-

dently, the Special Master has reviewed the proposed decree

and concludes that it embodies a wholly reasonable con-

struction of governing law. In these circumstances, the Court

may properly enter the consent Decree without violating

Article Ill of the Constitution. See New Hampshire v. Maine,

426 U.S. 363 (1976).

2. Ii remains only to comment on the appropriateness of

entering a decree at this time with respect to the areas identi-

fied, without awaiting resolution of all disputes in the cause.

In like cases, the Court has often entered decrees defin-

ing portions of a State’s coastline and the three-mile belt of

submerged lands seaward of that line. That has been done

after contested issues have been resolved by the Court. F.x.,

United States v. California, 382 U.S. 448 (1966), 439 U.S. 30

(1978). And the same course has been followed with respect

to areas no longer in dispute. E.g., United States v. Loutsiana,

382 U.S. 288 (1965), 404 U.S. 388 (1971), 409 U.S. 17 (1972);

4

United States v. California, 432 U.S. 40 (1977). No reason

appears why those precedents ought not be followed here.

The segments of the coastline to which the proposed

Decree refers can be clearly identified without necessary ref-

erence to the other portions of the coastline still contingently

disputed. Should the contingent Settlement fail, requiring

further proceedings, the entry of the proposed Decree will

have substantially narrowed the controversy and is, there-

fore, in the interest of judicial economy. The resolution of the

remaining issues would unavoidably require substantial

additional time, and, in the interim, it is in the interest of

both sovereigns to fix with certainty so much of the bound-

ary defining their respective submerged lands as may now

be adjudicated. To that extent, confliciting jurisdictional and

proprietary claims will be set to rest and the administration

of the adjudicated areas may proceed without controversy.

It should be stressed that entry of the proposed Decree

encompassing the issues now ready for final resolution will

in no way delay or embarrass any further proceedings. Nor

is it believed that the Court will be unduly burdened by now

entertaining the proposed Decree. The parties have jointly

prayed for its submission to the Court and neither party will

except to the recommendations of this Report. In these cir-

cumstances, the Court presumably will deem it unnecessary

to require briefing and argument on the Report. Unless the

Court otherwise directs, the parties have indicated that they

will submit to the Court a joint statement endorsing the Re-

port of the Special Master and urging entry of the appended

proposed Supplemental Decree.

CONCLUSION

The Special Master recommends:

1. That the proposed Supplemental Decree appended

hereto be entered by the Court;

5

2. That the original reference of the cause to the Special

Master be continued on the same terms; and

3. That the Special Master shall, in due course, submit a

final Report to the Court at the conclusion of any further

necessary proceedings in respect of issues not resolved by

the present proposed Decree.

Respectfully submitted,

Walter E. Hoffman

Senior United States District Judge

Special Master

May 26, 1981

APPENDICES

APPENDIX A

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. 35, Original

UNITED STATES OF AMERICA,

Plaintiff,

VS.

STATE OF MAINE, ET AL.,

Defendants.

(Massachusetts Boundary Case)

PROPOSED SUPPLEMENTAL DECREE

The Court's Special Master having filed a Report recom-

mending the entry of a supplemental decree for the purpose

of defining with greater particularity the boundary line be-

tween the submerged lands of the United States and the

submerged lands of the Commonwealth of Massachusetts,

as contemplated by the Court’s Decree of October 6, 1975,

423 U.S. 1, and the Court’s Order of June 29, 1977, 433 U.S.

917, appointing the Honorable Walter E. Hoffman as Special

Master in this cause, and the United States and the Com-

monwealth of Massachusetts having stated their acquiesc-

ence in the recommendations of the said Report:

itis ORDERED, ADJUDGED, and DECREED as follows:

1. The coastline of the Commonwealth of Massachu-

setts, as that term is used in the Court’s Decree herein dated

October 6, 1975, shall be, in the area hereafter specified:

(a) A straight line running southwesterly from a

point on the mean low water line at Eastern

A-]

Point on Cape Ann (approximately 42° 34'45"N,

70° 39'43"W on NOS Chart 13267, 18th Ed.) toa

point on ihe mean low water line seaward of

Strawverry Point (approximately 42° 15'31"N,

70° 46'05”"W on the same NOS Chart), thence

southeasterly along the line of ordinary mean

low water (including closing lines across Scitu-

ate Harbor and the North River) to Brant Rock

(approximately 42° 05'29"N, 70° 38°15"W on the

same NOS Chart), thence a straight line run-

ning easterly to a point on the mean low water

line at Race Point on Cape Cod (approximately

42° 03’46"N, 70° 14'51"W on the same NOS

Chart);

(b) A straight line running southeasterly from a

point on the mean low water line at Gooseberry

Neck (approximately 41° 28'43"N, 71° 02'05"W

on NOS Chart 13218, 21st Ed.) to a point on the

mean low water line on the southwestern ex-

tremity of Cuttyhunk Island (approximately 41°

24'44"N, 70° 57'07"W on the same NOS Chart).

2. The reference to the Special Master appointed by the

Court on June 29, 1977, is continued in effect, under the

terms of the Court’s Order of that date, and he is directed to

proceed with the cause, holding such further proceedings as

may seem advisable until all remaining issues referred to him

are ready for submission to the Court by his further report.

3. The Court retains jurisdiction to entertain such fur-

ther proceedings, enter such orders, and issue such writs as

may from time to time be deemed necessary or advisable to

give proper force and effect to this decree or to effectuate the

rights of the parties in the premises.

A-2

APPENDIX B

in

paragraph l(a) of the pro-

This chart depicts the

posed Supplemental Decree

closing line descr

ee

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BHORTH RIVER

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-— ——

APPENDIX C

This chart depicts the

closing line described in

paragraph 1(b) of the pro-

posed Supplemental Decree

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