United States v. Louisiana (Louisiana Boundary Case)/Dissent Black

by Hugo Black

United States Supreme Court

394 U.S. 11

United States  v.  Louisiana (Louisiana Boundary Case)

 Argued: Oct. 14, 15, 1968. --- Decided: March 3, 1969

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.

We must decide in this case the meaning of the term 'inland waters,' as used in the Submerged Lands Act of 1953. ^[1] Although the value of all the submerged lands probably could be stated only in astronomical figures, this dispute is a minor one involving only a comparatively small segment of land adjacent to Louisiana. ^[2] The Court chooses as the proper meaning the complex series of definitions incorporated in the Convention on the Territorial Sea and the Contiguous Zone, an international treaty approved by the President and ratified by the Senate. ^[3] In making this choice, the Court relies on the recent decision by a divided Court that this standard should be used in determining the boundaries of California's 'inland waters' along the California coast. United States v. California, 381 U.S. 139, 85 S.Ct. 1401, 14 L.Ed.2d 296 (1965) (generally referred to as the second California case). I cannot agree to application of the same standard to Louisiana, where coastal conditions are wholly different ^[4] and where the Convention standard, which the Court thought would provide some certainty and stability for California, can only cause chaos and confusion. Nor can I find any justification for applying the Convention standard applied in the second California case to Louisiana, a State that was not a party to the West Coast litigation but urges us to adopt a different standard, one especially convenient for application to Louisiana's own unusual coast, and one never even considered in the West Coast litigation. ^[5] Under these circumstances I must dissent. I would hold that 'inland waters' should be measured in Louisiana, and in any other State with similar coastal characteristics, by the standard urged by Louisiana-the Coast Guard line established years ago, under the authority of an 1895 Act of Congress, to mark off the boundaries of the States' 'inland waters.' Such a holding would put an end to a useless, unnecessary litigation, over an issue that can well be characterized as de minimis so far as the practical effect to the United States is concerned.

In 1947 this Court decided that no one of the States bordering on the Atlantic or Pacific Ocean or on the Gulf of Mexico owned any part of the land submerged under the waters lying adjacent to its shores. ^[6] In 1953 Congress, in the Submerged Lands Act 'restored' to the States what it thought our holding had wrongfully taken away from them. What the Act did was in effect to quitclaim to each coastal State submerged land extending three geographic miles seaward from the State's coastline, except that under certain circumstances States bordering on the Gulf of Mexico were entitled to a maximum of not more than three leagues (roughly nine geographic miles) from the coastline. Under the Act submerged land of the Continental Shelf more than three miles or three leagues beyond the coastline is property of the United States. The Act defined 'coast line' in § 2(c) as '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 inland waters.' This definition of 'coast line' is, of course, not clear enough in itself for one to go out and look around the waters and fix the boundary line between submerged lands belonging to the Federal Government and those belonging to the States, particularly since the crucial term 'inland waters' is not defined in the Act at all. There appears to be one thing certain about the problem, however, and that is that the dispute between Louisiana and the United States is no part of international affairs subject to international law, but is exclusively a domestic controversy between the State and Nation. The United States, nevertheless, contends that in determining this purely domestic dispute, the Act's words must be given their content in international law and the controlling principles must be found in the international Convention. The United States places its chief reliance for this contention on the second California case. In that case some questions arose about whether certain segments of the California coastline, particularly with reference to bays, inlets, sounds, indentations, and islands, were within California's inland waters. There the Court did not pass on the applicability of the 1895 Act of Congress, ^[7] and seeking a satisfactory way to determine some of the perplexing problems about treatment of bays, etc., as inland waters, a divided Court concluded to resort to the treaty mentioned. The majority believed reliance on the treaty was dictated by the need to adopt 'the best and most workable definitions available,' 381 U.S., at 165, 85 S.Ct., at 1415, thus, as it was believed, adding stability to the operation of the Act and carrying out a purpose of the Act's proponents to give security of title to the State and its oil lessees.

But if that turns out to be the result of using the treaty definitions in the second California case, it will certainly not be the result here, for there are crucial differences between the two coasts. California waters are in the main deep and often a e navigable very close to shore. There are few indentations along that State's coast, and most of these are smooth or relatively regular in shape. The shoreline is, of course, subject to changes by natural forces, but the land along the shore is for the most part hard and rocky, and therefore such changes in the shoreline have been extremely gradual. The Louisiana coast is entirely different in many ways. The waters off the shore are shallow and often not readily navigable. The shoreline is marked by numerous complex indentations, and indeed the United States, in a brief filed earlier in this litigation, itself recognized that '(t)he Louisiana coast line is an extraordinarily complicated one.' ^[8] (Emphasis added.) Even more important than this complexity of the present coastline is its highly volatile nature. The mighty Mississippi brings sediment and mud which may build up little islands and mud elevations one day and destroy them the next. Parts of the Mississippi Delta are receding at a rapid rate, while in other parts deposits are rapidly being built up. Recent projects along the Atchafalaya River may cause that river to begin building another massive delta that could grow seaward at a rate of almost one mile per year. Because the coast is composed of soft, silt-like material, because the water is for the most part relatively shallow, and because the elevation of the land along the shore is extraordinarily low, the shoreline often changes drastically merely as a result of temporary variations in winds and waves. Offshore islands sometimes appear or disappear spontaneously as a result of the same forces, and of course major hurricanes to which Louisiana-unlike California-is occasionally exposed, cause even more substantial changes.

In Louisiana, consequently, the Court cannot correctly say about its holding what it said with some plausibility in the second California case:

'Before today's decision no one could say with assurance where lay the line of inland waters as contemplated by the Act; hence there could have been no tenable reliance on any particular line. After today that situation will have changed. Expectations will be established and reliance placed on the line we define. * * * 'Freezing' the meaning of 'inland waters' in terms of the Convention * * * serves to fulfill the requirements of definiteness and stability which should attend any congressional grant of property rights belonging to the United States.' 381 U.S., at 166-167, 85 S.Ct., at 1416.

Today's holding does not grant Louisiana the 'definiteness and stability' promised to California. A company having an oil lease now under ocean waters of Louisiana gets no more than an ambulatory title: here today and gone tomorrow. And with its title, I suppose, will go all of its expensive investment in developing the lease. Stable business cannot be fostered that way. The ambulatory title, which the Court finds in the Submerged Lands Act, I think frustrates the just expectations Congress desired that oil companies have in the stability of their leases for exploitation of oil under the sea.

Nothing was said in the second California opinion indicating that the treaty provisions the Court borrowed in that case were to be mechanically used to fit every land dispute. The treaty was chosen there because the Court though it provided the 'best and most workable definitions available' in the dispute between California and the United States; the doctrine cannot fit all cases. If it worked for stability in California, it has a directly opposite effect in Louisiana. Moreover, the doctrine is tending to bring about interminable litigation. Passed 15 years ago, the Act has generated litigation that is not yet abating; we have another dispute similar to this one before us now, and neither the United States nor the State indicates that there is not far more time-consuming litigation § ill to come. In fact, discussion of this case by the Court requires 63 pages in what appears to me to be as succinct and clear an opinion as could have been written. And even yet the end of the dispute has not arrived. How many years the Master who must now be appointed will have to work, how many persons must be hired to help him, no one can predict. Settling and identifying boundaries on land is a surveyor's job; he must go to the land with his instruments and mark it off. Identifying an ocean boundary, we are told by the briefs and arguments of both parties here, is a much more complex job; it takes much time by surveyors, cartographers, photographers, and oceanographers, a knowledge of angles, tides, rolling waters, higher mathematics, etc. ^[9] Shorelines are constantly changing, and thus under the Court's formula even this painstaking work cannot provide a means of marking the boundary for all time. I cannot accept the argument that Congress never intended to impose on this Court such an unjudicial job. I turn therefore to Louisiana's contentions that Congress long ago adopted a plan and selected a government agency to determine where the inland water line is, that this agency has considered and determined that line, marking it as required by law, and that this line, which is not movable but fixed, provides the stability and certainty necessary to make the purchase and exploitation of oil leases on submerged lands a commercial success. To the extent that my analysis is inconsistent with other possible interpretations of the second California case, it must be recognized that the usual reasons for strong deference to prior precedent are almost wholly absent here. Stare decisis is a valuable principle because by making the governing legal rules predictable, it enables private parties to determine their rights without litigation and enables lower courts to dispose of the great bulk of disputes that do result in litigation. In the present unique situation, however, only a small handful of parties is affected by the governing legal rule; settlement entirely out of court is highly unlikely under the Court's Convention rule; and in practice though not of necessity, cf. 28 U.S.C. § 1251(b)(2), all these disputes are being brought within the original jurisdiction of this Court. Under these circumstances this Court should certainly not adhere blindly to its previous holdings, particularly where, as here, the State involved was not a party to the prior litigation and the claim raised here by Louisiana under the 1895 Act was never considered in the prior litigation.

'The Secretary of the Treasury is hereby authorized, empowered and directed from time to time to designate and define by suitable bearings or ranges with light houses, light vessels, buoys or coast objects, the lines dividing the high seas from rivers, harbors and inland waters.' ^[10]

This 1895 law was the successor of other laws showing congressional interest in marking the boundaries between inland and outer-sea waters. ^[11] Such marks are necessary in order for ships to know when they must obey local signals in the inland waters of a State, as distinguished from their duty to observe international rules and warnings. Title 33 of the U.S.C.ode contains our inland water rules, for infraction of which courts can inflict penalties consisting of fines and sometimes ship seizures. The Government argues that it is not the purpose of this statute to give the Secretary power to mark this boundary except to control navigation. To buttress this contention, references made to a few sporadic statements by Secretaries who had occasion to mark boundaries and by some legi lators helped pass the statute. But surely the Government is not contending that Congress in solemnly considering over a period of years and then passing this law was doing so as a kind of joke. International and local rules of navigation are serious business and the warnings put out under order of Congress to inform ships where inland waters begin must be acted on and obeyed. Here not only has the line delineating Louisiana's waters been marked but also the State passed Act 33 of 1954 accepting these governmental markings as showing positively and certainly just where its inland water line is located. And there is no danger that this line will be ambulatory since the line is now marked, and will not move as shore conditions change. Nor will future modifications in the line by the Coast Guard disrupt title to these inland waters or to the land and oil beneath them since this Court has repeated several times that a State's territory cannot be taken away from it by Congress without its consent. ^[12] Such was the understanding of Senator Cordon, floor manager for the Submerged Lands Act, who said:

'The boundaries of the States cannot be changed by Congress without the consent of the States. We cannot do anything legislatively in that field, and we have not sought to do so in this measure.' ^[13]

Acceptance of the Coast Guard's inland water mark for Louisiana fits precisely within the reasons given for utilizing the international Convention in the second California case. It will put a stop to eternal litigation and help relieve this Court of the heavy burden repeatedly brought upon us to make decisions none of us have the time or competence to make. It will release the time of the Court to do other and more important things. It will help to end further delay in our giving effect to the desire of Congress to grant the States full ownership and control over submerged lands three miles or three leagues from their coastlines. And it will provide the certainty and stability which are absolutely essential for useful development of our off-shore oil resources.

I dissent from the Court's holding.

Notes

1. 67 Stat. 29, 43 U.S.C. §§ 1301-1 15.
2. For this reason it is difficult to understand why the Federal Government is subjecting the State of Louisiana and this Court to a long series of technical and wasteful lawsuits. When all of them are over the United States will have little more undersea land than it already had. The only practical difference that I can see at the moment if the Federal Government wins is that it, instead of the State, will have power to lease the land to some oil company. On the other hand should Louisiana win, it can lease the land perhaps at a bigger price and then, as I pointed out in a prior separate opinion, United States v. Louisiana, 363 U.S. 1, 85, 98-100, 80 S.Ct. 961, 1008, 1014-1015, 4 L.Ed.2d 1025, devote its oil income to public education.
3. 44 Dept. State Bull. 609; (1964) 15 U.S.T. (pt. 2) 1607, T.L.A.S. No. 5639.
4. 'History is subject to geology. Every day the sea encroaches somewhere upon the land, or the land upon the sea; cities disappear under the water, and sunken cathedrals ring their melancholy bells. Mountains rise and fall in the rhythm of emergence and erosion; rivers swell and flood, or dry up, or change their course; valleys become deserts, and isthmuses become straits. To the geologic eye all the surface of the earth is a fluid form, and man moves upon it as insecurely as Peter walking on the waves to Christ.'
5. The propriety of using the Coast Guard line as the seaward line of inland waters was not litigated in the second California case. The issue was not raised by the pleadings; nor was it argued. The point was raised once on oral argument when Mr. Justice Brennan asked if the United States relied on the Coast Guard line. Mr. Cox, the Solicitor General, replied that the United States placed no reliance on it, the purpose of that line being 'to indicate where the inland rules applicable to vessels control and where the international ocean rules control.' He added that Louisiana will contend, when her case reaches here, that the Coast Guard line does control but that it was not involved in the California segment of the litigation.
6. United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947).
7. This is vividly demonstrated by the colloquy between Mr. Justice Brennan and Solicitor General Cox, referred to in n. 5 above:
8. Memorandum for the United States in Reply to Louisiana's Brief Opposition to Motion for Leave to File Complaint, March 7, 1956, pp. 9-10.
9. See my dissent filed today in the Texas Boundary Case. 394 U.S., at 8, 89 S.Ct., at 772, n. 2.
10. 28 Stat. 672. This Act has been changed by substituting for the Secretary of the Treasury the Secretary of Commerce, and later by placing the responsibility with the Commandant of the Coast Guard. Now 33 U.S.C. § 151.
11. E.g., 23 Stat. 438 (1885); 26 Stat. 320 (1890).
12. See, e.g., Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 541, 5 S.Ct. 995, 1004, 29 L.Ed. 264 (1885); DeGeofroy v. Riggs, 133 U.S. 258, 267, 10 S.Ct. 295, 297, 33 L.Ed. 642 (1890).
13. 99 Cong.Rec. 2634.