Supplemental Brief — Kostadinov v. United States

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No. 35, Original

In the Supreme Court of the United States

OCTOBER TERM, 1995

UNITED STATES OF AMERICA, PLAINTIFF

.

STATE OF MAINE, ET AL.

(MASSACHUSETTS BOUNDARY CASE)

ON EXCEPTION TO THE REPORT OF

THE SPECIAL MASTER

JOINT MOTION FOR ENTRY OF A SUPPLEMENTAL

DECREE, MEMORANDUM IN SUPPORT

OF THE JOINT MOTION, AND

PROPOSED SUPPLEMENTAL DECREE

SCOTT HARSHBARGER DREW S. DAS, III

Attorney General Solicitor General

WILLIAM L. PARDEE Department of Justice

Assistant Atterney General Washington, D.C. 20530

Commonwealth of (202) 514-2217

Massachusetts

Boston, Mass. 02114

(617) 727-2200

In the Supreme Court of the United States

OCTOBER TERM, 1995

No. 35, ORIGINAL

UNITED STATES OF AMERICA, PLAINTIFF

V.

STATE OF MAINE, ET AL.

(MASSACHUSETTS BOUNDARY CASE)

ON EXCEPTION TO THE REPORT

OF THE SPECIAL MASTER

JOINT MOTION FOR ENTRY OF A

SUPPLEMENTAL DECREE

The United States of America and the Common-

wealth of Massachusetts jointly move that this Court

enter a supplemental decree in the form and manner of

the attached proposed decree. The basis for this

motion is explained in the memorandum that follows.

Respectfully submitted.

SCOTT HARSHBARGER DREW S. DAys, III

Attorney General Solicitor General

WILLIAM L. PARDEE

Assistant Attorney General

Commonwealth of

Massachusetts

JANUARY 1996

In the Supreme Court of the United States

OCTOBER TERM, 1995

No. 35, ORIGINAL

UNITED STATES OF AMERICA, PLAINTIFF

V.

STATE OF MAINE, ET AL.

(MASSACHUSETTS BOUNDARY CASE)

ON EXCEPTION TO THE REPORT OF THE

SPECIAL MASTER

MEMORANDUM IN SUPPORT OF THE JOINT

MOTION FOR A SUPPLEMENTAL DECREE

This joint motion arises from litigation between

the United States and the Commonwealth of Massa-

chusetts over whether Vineyard Sound and Nantuck-

et Sound are part of the “internal waters” of Massa-

chusetts. This Court has decided that Vineyard

Sound qualifies as internal waters, but Nantucket

Sound does not. United States v. Maine, 475 U.S. 89

(1986). The United States and Massachusetts have

prepared the proposed decree in conformity with the

Court’s decision. :

1. In 1969, the United States brought suit against

13 States to resolve disputes respecting the scope of

the federal sovereign interest in the seabed and

e

(1)

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submerged lands underlying the Atlantic Ocean. See

United States v. Maine, 395 U.S. 955 (granting the

United States leave to file complaint). The Court

appointed a Special Master, 398 U.S. 947 (1970), who

submitted a report to the Court, 419 U.S. 814 (1974).

The States filed exceptions to the Special Master’s

report. The Court overruled those exceptions, con-

cluding that the United States has sovereign rights

over the seabed and subsoil lying more than three

geographic miles seaward from the ordinary low-

water mark and from the outer limits of inland coastal

waters. 420 U.S. 515 (1975). The Court entered a

decree in accordance with that ruling. 423 U.S. 1

(1975).

2. The Court retained jurisdiction to resolve

remaining issues respecting the location of the

coastline of the States and the seaward boundary

between the seabed lands of the States and those of

the United States. United States v. Maine, 421 U.S.

958 (1975). In 1976, the United States filed a motion

for supplementary proceedings to resolve issues

respecting portions of the coastlines of Rhode Island

and Massachusetts. The Court appointed a new

Special Master, 433 U.S. 917 (1977), who severed the

Massachusetts dispute from the Rhode Island dispute

and allowed New York to intervene in the latter

proceeding. See United States v. Maine (Rhode

Island and New York Boundary Case), 469 U.S. 504,

508 (1985).

In the case of the dispute involving Rhode Island

and New York, the Special Master submitted a report

addressing the status of Block Island Sound and

a portion of Long Island Sound. United States v.

Maine, 465 U.S. 1018 (1984). The United States,

Rhode Island, and New York all filed exceptions to the

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Special Master’s report. The Court overruled those

objections, concluding that certain portions of the

waters in dispute are “juridical bays” and therefore

inland waters of the States. United States v. Maine

(Rhode Island and New York Boundary Case), 469

U.S. 504 (1985). The Court entered a supplemental

decree in accordance with its ruling. 471 U.S. 375

(1985).

In the case of the Massachusetts dispute, the

Special Master submitted a report addressing the lo-

cation of portions of that Commonwealth’s coastline

in the area between Eastern Point, on Cape Ann, and

Race Point, on Cape Cod, and between Gooseberry

Neck and Cuttyhunk Island. The parties filed no

exceptions to that report, and the Court accordingly

entered a supplemental decree adopting the Special

Master’s determinations. United States v. Maine

(Massachusetts Boundary Case), 452 U.S. 429 (1981).

The Master separately addressed the question wheth-

er Vineyard Sound and Nantucket Sound are inland

waters of the Commonwealth. The Master submitted

a report recommending that Vineyard Sound consti-

tutes inland waters, but Nantucket Sound does not.

United States v. Maine. 472 U.S. 1015 (1985). Massa-

chusetts filed an exception respecting Nantucket

Sound, but the Court overruled that exception. 475

U.S. 89 (1986).

3. In its decision respecting Nantucket Sound, the

Court directed the parties “to prepare and submit a

decree conforming to the recommendations of the

Special Master.” United States v. Maine, 475 U.S. at

105. The parties began work in preparing the decree,

but as a result of changes in the respective govern-

ments’ personnel and the press of other government

business, the undertaking did not progress for a

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considerable period of time. The United States and the

Commonwealth of Massachusetts have now resumed

and completed that undertaking. The proposed decree

describes the location of the Massachusetts coastline

in the vicinity of Vineyard and Nantucket Sounds in

accordance with this Court’s February 25, 1986,

decision, the Special Master’s report, and agreements

reached between the parties.

Respectfully submitted.

Scott HARSHBARGER Drew S. Days, III

Attorney General Solicitor General

WILLIAM L. PARDEE

Assistant Attorney General

Commonwealth of

Massachusetts

JANUARY 1996

In the Supreme Court of the United States

OCTOBER TERM, 1995

No. 35, ORIGINAL

UNITED STATES OF AMERICA, PLAINTIFF

.

STATE OF MAINE, Er AL.

(MASSACHUSETTS BOUNDARY CASE)

ON EXCEPTION TO THE REPORT

OF THE SPECIAL MASTER

PROPOSED SUPPLEMENTAL DECREE

The Court having, by its decision of February 25,

1986, adopted the recommendation of its Special Mas-

ter that Vineyard Sound constitutes historic inland

waters and overruled the exception of Massachusetts

to the Report of its Special Master herein insofar as

it challenged the Master’s determination that the

whole of Nantucket Sound does not constitute histor-

ic or ancient inland waters, and having, to this extent,

adopted the Master’s recommendations and confirmed

his Report:

IT IS ORDERED, ADJUDGED AND DECREED

as follows:

1. For the purposes of the Court’s Decree herein

dated October 6, 1975, 423 U.S. 1 (affirming the title of

(1)

*

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the United States to the seabed more than three geo-

graphic miles seaward of the coastline, and of the

States to the seabed within the three geographic

mile zone), the coastline of the Commonwealth of

Massachusetts shall be determined on the basis that

the whole of Vineyard Sound constitutes state inland

waters and Nantucket Sound (with the exception of

interior indentations which are described in para-

graphs 2(c), (d) and (e) below) is made up of territorial

seas and high seas.

2. For purposes of said Decree of October 6, 1975,

the coastline of Massachusetts includes the following

straight lines:

(a) A line from a point on Gay Head on Martha’s

Vineyard (approximately 41°21°10”N, 70°50’07”W)

to the southwestern point of Cuttyhunk Island

(approximately 41°24’39”N, 70°56’34”W);

(b) A line from a point on East Chop

(approximately 41°28'15”"N, 70°34’05"W) to a

point on Cape Cod (approximately 41°33’10”N,

70°29'30”" W);

(c) A line from a point southeast of East Chop

(approximately 41°27'30”N, 70° 33’18”W) to a point

west of Cape Pogue (approximately 41°25’06”N,

70°27'56”W) on the island of Martha’s Vineyard;

(d) A line from a point on Point Gammon on

Cape Cod (approximately 41°36’36”N, 70°15’40”W)

to the southwestern-most point of Monomoy Is-

land (approximately 41°33’02”N, 70°00’59”W); and

(e) A line from a point on the west coast

of Great Island (approximately 41°37'08”N,

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70°16'15”W) to a point on Hyannis Point on Cape

Cod (approximately 413727 N, 70°17'34”W).

3. The Court retains jurisdietion to entertain such

further proceedings, enter such orders, and issue

such writs as from time to time may be deemed neces-

sary or advisable to effectuate and supplement the de-

cree and the rights of the respective parties.